IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No. 278 OF 2006 Between: I. Raghu Babu …..Accused/Appellant And State through Inspector of Police, A.C.B. Visakhapatnam, rep. by Spl. Public Prosecutor for A.C.B. Cases …..Respondent/Complainant THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No. 278 OF 2006 ORDER The accused/appellant was working as Junior Stenographer in the office of Deputy Transport Commissioner, Visakhapatnam and was also in charge of A-10 seat in that office. He was convicted by the Special Judge for A.C.B. Cases, Visakhapatnam by Judgment dated 21.2.2006 in C.C.No.18 of 1999 for offence under Section 7 of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to Rigorous Imprisonment for one year and fine of Rs.4,000/-. The lower Court, while recording conviction of the accused under Section 7 of the Act, recorded acquittal of the accused of the charges under Section 13(1)(a) and 13(1) (d)/13(2) of the Act. P.W.1, who is the alleged victim of corruption, was a transport agent at Visakhapatnam. His license as transport agent expired and so, he applied for renewal of his license with a delay of five days. The Deputy Transport Commissioner, Visakhapatnam rejected P.W.1’s application for renewal of his license on the ground of delay. It is alleged that when P.W.1 approached the accused on 19.2.1998, the accused advised him to renew his application for renewal of his license along with a medical certificate to condone the delay and that the accused demanded bribe of Rs.6,000/- from P.W.1 for getting his license renewed and that finally, P.W.1 agreed to pay Rs.4,000/- to the accused on 9.4.1998 and make balance of payment of Rs.2,000/- subsequently. Thereafter, P.W.1 approached P.W.7-Deputy Superintendent of Police, A.C.B., Visakhapatnam unit and gave report to him. Then pre-trap proceedings were prepared in the office of P.W.7 in the presence of mediators including P.W.2, who was working as Assistant Executive Engineer in the Irrigation Department. It is alleged that on 9.4.1998, the accused was trapped when he demanded and accepted Rs.4,000/- from P.W.1 as illegal gratification in his office room. Post-trap proceedings covered by Ex.P.14 reveals that tainted cash of Rs.4,000/- covered by M.O.5 was recovered from the accused and fingers of the accused when dipped in sodium carbonate solution, the solution turned into pink colour. Therefore, it is alleged that the accused demanded and received bribe of Rs.4,000/- from P.W.1 for doing official favour to P.W.1 by way of getting his transport agency license renewed after its expiry, after getting the delay condoned. During trial in the lower Court, P.W.1, 3, 4 and 6 turned hostile to the prosecution. All of them are transport agents. They were examined to prove that the accused was in the habit of demanding and receiving bribe from them. Since they turned hostile to the prosecution, the lower Court recorded acquittal of the accused for the offence under Section 13(1)(a) of the Act. The lower Court recorded acquittal of the accused for offence under Section 13(1)(d)/13(2) of the Act also on the ground that P.W.1 turned hostile and did not support the prosecution case with regard to the alleged demand and receipt of the illegal gratification and thereby failed to prove misconduct on the part of the accused. But, the lower Court found favour with the prosecution by recording conviction of the accused for offence under Section 7 of the Act by drawing presumption under Section 20 of the Act in favour of the prosecution, as the prosecution was able to prove recovery of M.O.5-tainted cash from the accused during Ex.P.14-post-trap proceedings in the presence of P.W.2 and another. There is no dispute that second application filed by P.W.1 for renewal of his transport agency license was pending in the office of Deputy Transport Commissioner, Visakhapatnam and the said file on the date of offence, was at A.10 seat, which was being handled by the accused. Therefore, there cannot be any doubt of the fact that an official favour was pending with the accused, inasmuch as he has to process the file to the higher authorities, though the accused was not the authority to take a decision on the application filed by P.W.1. After A.C.B. Officials, including P.W.7 entered into office room of the accused and recovered M.O.5-tainted cash of forty Rs.100/- denomination currency notes from possession of the accused, the accused gave a spontaneous explanation to the raid party and it was incorporated in Ex.P.14-post-trap proceedings. In the explanation, the accused admitted that P.W.1 had applied for renewal of his agent license with delay and about the same being rejected by the Deputy Transport Commissioner, Visakhapatnam. He admits that P.W.1 again filed another application along with medical certificate during March, 1998 stating that the delay was due to his ill-health and requesting to condone the delay. The accused admits that the said application numbered as 7191/A10/98 reached him on 28.3.1998 and he kept the said application in the file of P.W.1. He says that he could not put up the same to the Deputy Transport Commissioner because of pressure of work. The accused explained further by stating that on that day at about 8.00 P.M., P.W.1 came to him after the Deputy Transport Commissioner left the office and that the accused questioned P.W.1 as to why he did not file appeal against previous rejection order and why he filed another application. He says that he did not ask any amount from P.W.1 and that P.W.1 himself gave Rs.100/- currency notes for Rs.4,000/- and took Rs.500/- currency notes of the same value in exchange. So saying, the accused picked up M.O.5-tainted cash from his left side pant pocket and handed over the same to P.W.7. In the impugned Judgment, the lower Court found that the prosecution failed to prove demand for bribe made by the accused on 19.8.1998, 31.3.1998 and 7.4.1998, but proved that M.O.5-tainted cash of Rs.4,000/- passed from P.W.1 to the accused. Since M.O.5-tainted cash was recovered from possession of the accused, the lower Court, taking aid of resumption under Section 20 of the Act, recorded finding of guilt of the accused under Section 7 of the Act, in favour of the prosecution. During trial in the lower Court, P.W.1 turned hostile to the prosecution totally. According to P.W.1, staff of office of the Deputy Transport Commissioner, Visakhapatnam advised him to give Rs.6,000/- to the accused or to go to Hyderabad to get renewal order and that when he expressed his inability to pay the amount, the staff members stated that P.W.1 should bring at least Rs.4,000/-. According to P.W.1, he stated the same to P.W.7 also during pre-trap proceedings. It is definite evidence of P.W.1 that he approached the accused on the date of offence, during the course of trap, again asked him about renewal of his license and that the accused stated that his license cannot be renewed. P.W.1 further says that there upon, he picked out the currency notes from his pocket and gave them to the accused with a request to give Rs.500/- denomination notes and that when the accused gave the same, he kept them in his pocket. According to P.W.1, it was only a case of exchange of Rs.100/- denomination currency notes with Rs.500/- denomination currency notes. Placing reliance on several pronouncements of the Supreme Court, it is contended by senior counsel appearing for the appellant that mere recovery of tainted cash from the accused without proof of any demand, cannot lead to conviction of the accused under Section 7 of the Act and that the presumption under Section 20 of the Act is a rebuttable presumption and it was rebutted by accused in the present case by offering spontaneous explanation to P.W.7 at the time of recovery of M.O.5-tainted cash from him. In Suraj Mal Vs. State (Delhi Administration)[1], it was held by the Supreme Court that mere recovery of tainted cash by itself, cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. The lower Court relied upon M.Narsinga Rao Vs. State of A.P.[2] of the Supreme Court and found the accused guilty under Section 7 of the Act, taking aid of Section 20 of the Act. It was a case where the accused did not give any explanation for possession of the tainted cash at the time of raid, but gave explanation in respect of his possession of the tainted cash after four years, during trial. In those circumstances, the Supreme Court held that the presumption under Section 20(1) of the Act could not be rebutted by the accused therein. The said decision rendered by the Supreme Court in M.NARSINGA RAO on fact situation relating to that case. I am of the opinion that the said decision has no application in the present case where the accused gave spontaneous or on-the-spot explanation to the effect that he received cash of Rs.4,000/- consisting of currency of 100/- denomination in exchange with same amount of cash handed over to P.W.1 in Rs.500/- denomination currency. In M.Abbas Vs. State of Kerala[3], Three Judges Bench of the Supreme Court considered the question whether factom of recovery of the tainted cash from the person of the accused would raise a presumption under Section 4(1) of the old Prevention of Corruption Act, 1947. The Supreme Court held that the presumption under Section 4 of the old Prevention of Corruption Act, 1947, is a rebuttal one and is not available to the prosecution for proving a charge. It is contented by the Special Public Prosecutor that in this case, the accused did not lead any defence evidence to rebut the presumption under Section 20(1) of the Act. Examination of the accused or leading defence evidence, is not the only criterion to determine whether presumption is rebutted or not. Standard of proof required by the defence for rebutting a presumption, cannot be of the same vigour like the prosecution which is obliged to prove a particular fact against the accused beyond all reasonable doubt. Though the prosecution has to prove its case beyond all reasonable doubt, it would be sufficient for the accused to prove a defence fact by preponderance of probabilities. In the case on hand, apart from the spontaneous explanation given by the accused, which is incorporated in Ex.P.14-post-trap proceedings and which is narrated not only by P.W.2-the mediator and also P.W.7-the Deputy Superintendent of Police, there is positive evidence of P.W.1 before the lower Court to the effect that he handed over M.O.5-tainted cash to the accused in exchange to the same value of cash, which the accused gave to him in Rs.500/- denomination currency notes. It is contended by the Special Public Prosecutor that P.W.5, who is the head of the office stated that personal cash register of the staff like Ex.P.22(a) is maintained in their office and that personal cash of Rs.4,000/- with the accused was not disclosed therein. But, P.W.5 in cross- examination deposed that entries in personal cash register of the staff members will be entered only during working hours of his office upto 5.00 P.M. and not thereafter. It is explanation of the accused that he was having cash of Rs.4,000/- with him for the purpose of buying clothes in connection with his brothers marriage, the said fact was stated in Ex.P.14-post-trap proceedings themselves. Admittedly, the A.C.B. raid in this case, was long after office hours of P.W.5’s office. Therefore, failure to note personal cash of Rs.4,000/- in Ex.P.22(a) of P.W.5’s office, cannot be taken as a circumstance against the accused. In view of the explanation given by the accused, which is contained in Ex.P.14 and also in view of evidence of P.W.1, the lower Court should have found that the presumption under Section 20(1) of the Act, stood rebutted. I am of the opinion that the conclusion of the lower Court in finding the accused guilty under Section 7 of the Act on the sole circumstance of recovery of M.O.5-tainted cash from his possession, is not based on proper appreciation of evidence and is erroneous. Therefore, I find that the accused/appellant is not guilty of the charge under Section 7 of the Act. In the result, the appeal is allowed setting aside the conviction and the sentence recorded by the lower Court against the appellant/accused and acquitting him. ________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt: 08.02.2011 Tjmr THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl. A.NO. 278 OF 2006 DATE: 08.02.2011 [1] (1979) 4 Supreme Court Cases 725 [2] 2001 Crl. Law Journal 515 [3] 2001(2) ALD (Crl.) 60 (SC)