THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1292 OF 2002. DATED: 26-08-2009. Between: M.Anantha Ramulu … Appellant-accused and State of A.P. represented by the Inspector of Police, ACB, Hyderabad Range, Hyderabad. … Respondent-complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1292 OF 2002. JUDGMENT: This Criminal Appeal by the appellant-sole accused under Section 374 (2) Cr.P.C., is directed against the judgment, dated 13-11-2002, in C.C.No.8 of 1998, on the file of the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, whereunder and whereby the appellant was convicted of the offences punishable under Sections 7 and 13 (1) (d) (i)(ii) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of three months under each count. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The appellant-accused officer was given a contract work for effecting certain repairs to the school building in Narsapur Thanda. Accordingly, P.W.1 executed the said work in pursuance of Ex.P1- agreement. He completed the work of flooring, plastering, fixing the doors and windows etc, to the school building within 20 days. When he went and informed to the accused officer in the 1st week of September, 1997 who has to take measurements of his work, the accused officer did not measure the work carried out by P.W.1 and demanded P.W.1 to pay Rs.2,000/- as gratification other than legal remuneration. Again on 31-10-1997, when P.W.1 met the accused officer, he reiterated his demand. When P.W.1 expressed his inability to pay the amount, the accused officer asked him to pay the amount in two instalments at Rs.1,000/- and until the amount is paid, he will not inspect the site and record the measurements. As P.W.1 was unwilling to pay the amount, he lodged Ex.P2-complaint to P.W.9, who registered a case and took up investigation. P.W.9 summoned P.W.3 and others and introduced them to P.W.1. P.W.1 also produced Rs.1,000/- in Rs.100/- denomination. On the instructions of P.W.9, a constable applied phenolphthalein powder to the currency notes and kept the same in the right side pant pocket of P.W.1. P.W.1 instructed to go to the office of the accused officer and give the tainted amount on demand. He also directed P.W.3 to accompany P.W.1. Pre- trap proceedings Ex.P8 was scribed. Then P.Ws. 1 and 2 followed by trap party proceeded to the office of the accused officer on 03- 11-1997 at about 1.15 P.M. After receipt of pre-arranged signal, the trap party went into the office of the accused officer and conducted phenolphthalein test to both hand fingers of the accused officer. The right hand fingers turned into pink colour and the left hand fingers turned into light pink colour. Thereafter, post-trap proceedings were drafted. P.W.10 recorded the statements of the witnesses and after completion of investigation and after obtaining sanction orders, filed the charge sheet. 3. The learned Special Judge framed the following charges against the accused: Firstly: That you, being a public servant working as Assist., Engineer O/o Mandal Parishad Development Officer, Marpally Mandal, in September, 1997 demanded Rs.2,000/- from A.Harichander r/o Narsapur Thanda to do the official favour viz., to take measurements of the work of repairs to school building at Narsapur mandal carried out by him and on 31-10-1997 when he met you, you reiterated your demand and on his expressing inability to pay the same, you asked him to pay in two instalments of Rs.1,000/- each and on 03-11-1997 at about 1.15 P.M. in our office in pursuance of your earlier demand, you accepted the said sum of Rs.1,000/- from A.Harichander as gratification other than legal remuneration as a motive or reward for doing the said official favour and thereby committed an offence punishable under Section 7 of the P.C.Act 1988. Secondly: That you, being a public servant as mentioned in charge No.1 on the dates, time and place specified n charge No.1, by corrupt or illegal means or otherwise abusing your position as such public servant, demanded and obtained for yourself a pecuniary advantage to an extent of Rs.1,000/- in pursuance of your earlier demands and thereby committed an offence specified under Section 13 (1) (d) (i)(ii) of the P.C. Act, 1988 punishable under Section 13(2) of that Act.. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 10 and got marked Exs.P1 to P17 besides case property, M.Os.1 to 8. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court, accepting the evidence of P.Ws.3 and 9 found the accused officer guilty of the offences with which he was charged and accordingly convicted and sentenced him as above. Challenging the same, the accused officer preferred the present appeal. 7. Heard both the counsel 8. Now the point that arises for consideration is whether the prosecution has proved its case against the appellant-accused officer of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 9. Section 7 of the Act reads thus: “Public servant taking gratification other than legal remuneration in respect of an official act: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise o his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disserve to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government company referred to in clause (c) of Section 2 or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.” Section 13 (1) (d) of the Act reads thus: “13. Criminal misconduct by a Public servant: (1) A public servant is said to commit the offence of criminal misconduct- (a) … (b)… (c)… (d) if he – (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;” Section 13 (2) of the Act reads thus: “Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine” 10. It is not in dispute that for effecting certain repairs to the school building, P.W.1 was given a contract work of flooring, plastering, fixing doors and windows to the school buildings in Narsapur Thanda. P.W.1 completed the work within 20 days. Admittedly, the work measurement has to be taken by the accused officer. Accordingly, the accused officer came to the work spot and took the measurements. In the first week of September, 1997, when P.W.1 requested the accused officer to prepare the bill, the accused officer stated that he would prepare the bill after completion of check measurements. Thereafter, the accused officer told him that he would prepare the bill after Janmabhoomi programme. On the advice of Mandal Vice President, P.W.1 lodged complaint to police. As he was resiling from his earlier statement Ex.P2, he was declared hostile. Simply because P.W.1 was declared hostile, that does not mean, his evidence has to be erased from the record, but such part of his testimony which inspires confidence can be taken for corroboration with other evidence, if any, available on record. But his evidence does not incriminate anything against the accused officer in view of the fact that there was no demand or request made by the accused officer to show any official favour either in taking measurements or in preparing the bill. 11. P.W.2 is a accompanying witness. Though he stated that he accompanied P.W.1 to the office of the accused officer, he did not know what transpired between the accused officer and P.W.1. He was declared hostile by the prosecution. Therefore, as rightly contended by the learned counsel appearing for the accused officer that there is no evidence on record which would go to show that the accused officer demanded or requested P.W.1 to pay an amount of Rs.1,000/- to show an official favour. Hence, necessary ingredients of Section 7 of the Act have not been established. Hence, the trial Court committed illegality in coming to the conclusion that there was a demand or request made by the accused officer to P.W.1 to pay Rs.1,000/- to show official favour. 12. Now the only evidence remains on record is the evidence of P.Ws. 3 and 9, who are mediator and Trap Laying Officer. They speak about seizure of M.O.3-tainted currency notes from the possession of the accused officer. Their evidence would go to show that after receipt of pre-arranged signal, the trap party went into the office of the accused officer at about 1.15 P.M. and when P.W.9 subjected both hands of the accused officer to Sodium Carbonate Solution Test, right hand fingers turned into pink colour, whereas left hand fingers turned into light pink colour. The accused officer produced tainted currency notes from the shirt pocket. The inner lining of the shirt pocket of the accused officer when subjected to test, it also turned into pink colour. The evidence of P.Ws. 3 and 9 coupled with recitals in Ex.P13 would clearly go to show that M.O.3-tainted currency notes have been seized from the possession of the accused officer. The currency note numbers and its denomination as mentioned in Ex.P8- mediators report are completely tallying with the denomination and numbers as seized from the possession of the accused officer. P.W.9 stated that he seized measurement book and also the file pertaining to the repairs of the school building, which are marked as Exs.P9 and P10. 13. Learned counsel appearing for the accused officer relied on a decision reported in V.VENKATA SUBBA RAO V STATE REPRESENTED BY INSPECTOR OF POLICE, A.P. [1] , wherein it was held thus: “In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved.” There is no other reason to disbelieve the evidence of P.Ws. 3 and 9 with regard to finding of tainted currency notes from the shirt pocket and they were produced by the accused officer before P.W.1 14. He also relied on another decision reported in C.M. GIRISH BABU V CBI, COCHIN, HIGH COURT OF KERALA [2], wherein it was held thus: “In Suraj Mal V State (Delhi Administration), this Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery 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 accused voluntarily accepted the money knowing it to be bribe.” Therefore, from the above decision, it is clear that mere recovery of tainted currency notes from the constructive possession of the accused officer cannot be a ground to infer that he received the amount for showing any favour. 15. He also relied on another decision reported in A.SUBAIR V STATE OF KERALA [3], wherein it was held thus: “The legal position is no more res integra that primary requisite of an offence under Section 13 (1)(d) of the Act is proof of a demand or request or a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13 (1)(d) cannot be held to be established.” Therefore, the word ‘obtained’ in Section 13 (1) (d) of the Act means there must be demand or request made by the accused officer to pay some amount to show official favour. Absolutely, there is no evidence to show that official favour to be shown to P.W.1 by the accused officer was pending as on the date of laying trap. Similarly, there was no demand or request made by the accused officer to P.W.1 to pay some amount. These legal aspects have been completely overlooked by the trial Court and found the accused officer guilty. In view of law laid down by the apex Court, the prosecution failed to establish necessary ingredients under Sections 7 and 13 (1) (d) of the Act. Therefore, the convictions and sentences recorded by the trial Court against the accused officer have to be set aside. 16. Accordingly, the Criminal Appeal is allowed setting aside the judgment, dated 13-11-2002, in C.C.No.8 of 1998, on the file of the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad. The appellant- accused officer is found not guilty of the charges under Sections 7 and 13 (1) (d) (i) (ii) r/w 13 (2) of the Act and accordingly, he was acquitted of the said charges. Bail bonds of the appellant-accused officer shall stand cancelled. Fine amount, if any, paid by the appellant-accused officer shall be returned to him. --------------------- K.C.BHANU, J DATED: 26-08-2009 Hsd [1] AIR 2007 SC 489 [2] (2009) 2 SCC (CRI)1 [3] (2009) 6 SCC 587