THE HON’BLE SRI JUSTICE K.C.BHANU Criminal Appeal No.1350 of 2002 (Dated : 26-10-2009) Between: State of A.P., rep. by the Inspector of Police, Anti Corruption Bureau, Visakhapatnam …Appellant/ Complainant A n d B.Pothuraju S/o Venkataraman Incharge Head Master, Z.P.High School,. Konda Koppaka, Anakapalle Mandal, Visakhapatnam District. ….Respondent/ Accused Officer THE HON’BLE SRI JUSTICE K.C.BHANU Criminal Appeal No.1350 of 2002 JUDGMENT: This Criminal Appeal, filed by State, is directed against the judgment dated 20.4.2001 in C.C.No.13 of 1997 on the file of III Additional District & Sessions Judge-cum-Special Judge for A.C.B cases, Visakhapatnam, whereunder and whereby, the respondent/accused was found not guilty of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, “the Act”). 2. The case of the prosecution may be stated, in brief, as follows:- The respondent/Accused Officer-B.Pothuraju (hereinafter referred to as `A.O’) was working as Incharge Head Master, Zilla Parishad High School, Kondakoppaka, Anakapalle Mandal, Visakhapatnam District. He is required to perform all the functions in the matter of running the High School in a disciplined manner and also to conduct all the necessary examinations as per the orders of the Education Department and also to process issuance of the necessary pass certificates that may be received from the District Educational Officer. PW.1, Karanam Naidu, had admitted his nephew Dantla Janakamohan, son of Dantla Venkata Rao into sixth class in Z.P. High School, Kondakoppaka in the year 1992 and he discontinued his studies during the academic year 1994-95, while studying 8th class. The requisite requirement for a private candidate to get admission into 10th class is to go through the Common Entrance Test for 9th class conducted by the District Educational Officer, Visakhapatnam. Dantla Janaka Mohan routed his application for the above test through the A.O., in the year 1996 and passed in the said Entrance test. On 17-6-1996, P.W.1, having come to know about the dispatch of 9th class pass certificates from D.E.O office including that of his nephew to the A.O., met the A.O at Z.P. High School, Kondakoppaka and requested him to deliver the pass certificate of his nephew. On that, A.O demanded Pw.1 to pay him a sum of Rs.1,500/- as illegal gratification for issuing the said certificate. Pw.1 expressed his inability to fulfill the said demand and after much pursuation, A.O reduced his demand from Rs.1,500/- to Rs.1,000/- and affirmed that the certificate will not be given unless the bribe amount was given to him. PW-1 aggrieved of the said demand, gave a complaint against the A.O., on 18-6-1996 at 9.00 am., to PW.4 N.Saibaba, Deputy Superintendent of Police, Anti Corruption Bureau, Visakhapatnam,. Thereafter, on 19-6-1996 at about 2.20 pm., A.O was successfully trapped when he demanded and accepted a sum of Rs.400/- only from out of demanded amount of Rs.1,000/- as illegal gratification other than legal remuneration at his residential house at Narasingaropeta, Hamlet of Rajupalem. Chemical test conducted on the left hand fingers of A.O proved positive. The tainted amount of Rs.400/- was recovered at the instance of A.O who demanded and accepted a sum of Rs.400/- only by making a gesture pointing out his four fingers to P.W.1 by giving an impression that only a sum of Rs.400/- sufficient. The recovered tainted amount was wrapped in a handkerchief and kept the same in a wedding invitation envelope and that relevant portion of the table where the tainted amount was kept by PW.1 as per the instructions of A.O, was also subjected to the chemical test and the said test also proved positive. P.W.4 seized the said tainted amount of Rs.400/- and also seized the balance amount of Rs.600/- on being produced by Pw.1. After obtaining sanction (Ex.P13) from the competent authority, the Inspector of Police, ACB, Visakhapatnam filed the charge sheet. 3. The charges framed against the accused are:- Charge No.1: “That you (B.Pothuraju) being a public servant, i.e., Incharge Head Master, Z.P.High School, Kondakoppaka, Anakapalle Mandal, Visakhapatnam District, on or about 19th day of June, 1996 at about 2.20 P.M., at your house bearing Door No.2-43 situated at Narasingaraopeta H/o Rajupalem, accepted or obtained an amount of Rs.400/- (Rupees four hundred only) from Karanam Naidu S/o Gangaraju of Narasingaraopeta, Anakapalle, who is the uncle of Dantla Janaka Mohan, as gratification other than legal remuneration, as a motive or reward for issuing 9th class pass certificate of Dantla Janaka Mohan, in exercise of your official functions and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance”. Charge No.2: “That you (B.Pothuraju) at the same time and place stated supra, by means of corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs.400/- (Rupees four hundred only) from Karanam Naidu of Narasingaropeta, Anakapalle, and thereby committed an offence specified under Section 13(1)(d) of the Prevention of Corruption Act, 1988 punishable under Section 13(2) of that Act and within my cognizance”. 4. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined four witnesses and got marked 14 documents besides case property, M.Os. 1 to 12. 6. The trial Court, after consideration of the evidence on record, came to the conclusion that no official favour to be shown by A.O to PW-1 was pending, that the prosecution failed to establish that there is a demand and acceptance of bribe amount by the A.O., and accordingly, acquitted him. Challenging the same, State preferred the present appeal. 7. Now, the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act? 8. Sri V.Ravi Kiran Rao, learned Standing Counsel appearing for ACB cases pointed out that the evidence of PW-1 is very clear that for the purpose of handing over the original 9th class pass certificate, A.O demanded an amount of Rs.400/-, that he received the amount with an envelope and when his left hand came into contact with the envelope, that Sodium Carbonate solution test proved positive, that the evidence of PWs.3 and 4 would go to show that M.O-5 tainted currency notes have been seized from the bedroom of the A.O., that there is no other reason for Pws.1 and 2 to foist a false case of this nature against the A.O., and therefore, he prays to set aside the judgment of acquittal recorded by the trial Court. 9. None appeared for the respondent/accused. 10. There is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Though the appellate Court has got full power to re-appreciate the evidence, normally, the appellate court would be slow in interfering with the order of acquittal. There must be compelling or substantial reasons for interfering with the judgment of acquittal. If the finding is perverse or not based upon any evidence or inadmissible evidence has been taken into consideration or admissible evidence has been overlooked, the appellate Court interferes with the judgment under challenge. 11. The essential ingredients of Section 7 of the Act are:- i) that the person accepting the gratification should be a public servant ii) that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person. Insofar as section 13(1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 12. It is not in dispute that A.O was the person who has to issue pass certificates to the students, who passed 9th or 10th class examinations. He used to deliver the said certificates only to the candidates or their parents. The allegation is that for issuing Ex.P-6 pass certificate, he demanded PW-1, at the first instance, to pay Rs.1,500/- and then the demand was reduced to Rs.1,000/- and later to Rs.400/-. PW-2 is father of one Janaka Mohan in whose name Ex.P-6 pass certificate is standing. 13. As seen from the evidence on record, it is clear that the A.O was in the habit of issuing pass certificates to the students in person or to their respective fathers or any of the relations of the students. Such is the case, PW-1 is not competent to receive Ex.P-6 pass certificate from the A.O. In such a case, there is no need for the A.O to demand PW-1 to pay some amount when PW-1 was not at all connected with the certificate. Therefore, at best, if the A.O was in the habit of receiving some amount or demanding certain amount from the students, he would have made a request to PW-2, who is the proper person. But, admittedly he did not demand any amount from PW-2. Therefore, the evidence of PW-1 with regard to demand made by the A.O appears to be improbable and unbelievable. 14. Coming to the recovery of M.O-5 tainted currency notes from the house of the A.O., the evidence of Pws.3 and 4 is relevant. M.O-5 was kept in a cover and thereafter it was wrapped with a handkerchief. The handkerchief containing the cover and the tainted amount was found on the loft, which is situated at a height of 7 feet. When the left hand fingers of the A.O., were subjected to Sodium Carbonate test, the solution turned into light pink colour. The A.O has not directly contacted the currency notes, which were smeared with phenolphthalein powder. The numbers of the currency notes have been noted in Ex.P-5, which is pre-trap proceedings. The currency notes seized from the house of the A.O tally with the numbers as noted in Ex.P-5. Specific instructions have been given to Pw-1 by Pw-4 that the tainted currency notes should be handed over to the A.O on demand made by him. That was not done so. The prosecution has not explained as to how the amount containing cover was wrapped with kerchief. If really, A.O received the amount, there is no possibility to wrap the amount with a handkerchief, because of time gap between the receipt of tainted currency notes and the raid party entering into the house. Further, it must be shown that handkerchief does not belong to PW-1. At the time of drafting Ex.P-5 proceedings, PW-1 was searched. At that time, PW-1 was having a handkerchief. Admittedly, at the time of drafting Ex.P-8, post trap proceedings, there was no mention that PW-1 was searched and they found the availability of the handkerchief. To avoid false implication, the prosecution ought to have searched PW-1 at the house of the A.O to know whether he was keeping the handkerchief or not. So the possibility of PW-1 wrapping the tainted currency notes with a handkerchief and throwing it on the loft in the house cannot be ruled out. 15. Now, the only question that has to be seen is as to why the solution turned into pink colour when the left hand fingers were subjected to sodium carbonate solution test. It is not in dispute that the A.O received Ex.P-2 application from PW-1. Though Pw-1 was asked not to meddle with the tainted currency notes, which were smeared with phenolphthalein powder, but the case of the A.O is that he meddled with currency notes by keeping the same in the wrapper and thereafter in the cover and thereafter in the handkerchief and finally throwing it on to the loft in the house. Such is the case, PW-1 must have contacted with the phenolphthalein powder and while giving that application/ Ex.P-2, the A.O must have contacted the cover, which contained the phenolphthalein powder. Perhaps that is the reason why the left hand fingers of the A.O turned into light pink colour. 16. It is well settled that when two views are reasonably possible, one favouring the prosecution and another favouring the accused, the view which is favourable to the accused should be adopted. If the evidence of PW-1 is to be accepted, there is a possibility that the A.O demanded some amount from PW-1 in order to handover Ex.P-5 original pass certificate of the son of PW-2. Similarly, if the evidence of PWs.3 and 4 is to be accepted, tainted currency notes were seized from the house of the A.O. Similarly, if the defence of the A.O is to be accepted, he does not have any knowledge about M.O-5 tainted currency notes that were found. From the beginning, the case of the A.O is that he has neither demanded nor received any amount from PW-1. 17. A.O can show his defence by preponderance of probability. He had shown that there was no favour to be shown by him and that there is no need for him to demand any amount, especially from PW-1 who has nothing to do with M.O-6 original pass certificate of the son of Pw-2. Therefore, when the A.O refused to handover the original pass certificate to PW-1, the possibility of Pw-1 throwing the tainted currency notes wrapped in a kerchief on to the loft cannot be ruled out. The possibility of PW-1 throwing amount on to the loft may also be reasonably possible. That is the reason why the trial Court has given a benefit of doubt to the A.O. That benefit of doubt is neither fanciful nor whimsical. The findings are based upon proper appreciation of evidence on record. None of the finding is shown to be perverse or contrary to law. As there are no compelling or substantial reasons, the judgment under challenge needs no interference. 18. The appeal is devoid of merits and the same is accordingly dismissed confirming the judgment dated 20.4.2001 in C.C.No.13 of 1997 on the file of III Additional District Judge-cum- Special Judge for A.C.B Cases, Visakhapatnam. ______________ K.C.BHANU, J Dt.26-10-2009 RAR THE HON’BLE SRI JUSTICE K.C.BHANU Criminal Appeal No.1350 of 2002 DATED : 26-10-2009