IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.659 of 2004 DATE: 28.04.2011 Between: State : A.C.B rep. by Inspector of Police, Anti-Corruption Bureau, Nellore …… Appellant And K.Venkataratnam ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.659 of 2004 JUDGMENT : This is an appeal against acquittal. The Special Judge for S.P.E and A.C.B cases, Nellore vide judgment dated 25.11.2003 in C.C. No.9 of 1999 acquitted the accused of charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). The accused/respondent was working as Deputy Executive Engineer, Panchayat Raj, Podalakur, Nellore District. 2) There was construction of Veterinary hospital building at Thatiparti village under Janma Bhoomi programme, sanctioned by the District Collector at an estimated cost of Rs.2,00,000/-. P.W-1 came forward to bear 30% of the estimation cost. The village committee appointed P.W-1 as convenor and recommended P.W-1 to Mandal Parishad Development Officer (M.P.D.O), Podalakur for construction of the said building. In pursuance of work order given by M.P.D.O, P.W-1 completed the said work and also received part payment under the work. The Assistant Executive Engineer (P.W-3) recorded measurements of the work in M- book and also prepared final bill and sent the same to the accused for onward transmission of the same to the Executive Engineer, Panchayat Raj, Nellore. It is alleged that the accused demanded P.W-1 to pay illegal gratification of Rs.800/- to him for sending the final bill to the Executive Engineer. Aggrieved by the same, P.W-1 is stated to have given Ex.P-1 report to the Deputy Superintendent of Police, Anti Corruption Bureau (A.C.B), Nellore, in pursuance of which trap was arranged for the accused on 06.11.1998. Ex.P-4 is pre-trap mediation report in this case. It is alleged that the trap was successful and that the accused was caught red-handed while receiving M.O-1 tainted amount of Rs.800/- from P.W-1 as bribe. Plea of the accused is one of not guilty. 3) There is no dispute on the part of the accused that he received M.O-1 tainted cash of Rs.800/- from P.W-1. According to the accused, he received the same from P.W-1 towards discharge of hand loan. In Ex.P-14 post-trap mediators’ report also it was recorded that the accused made spot explanation to the effect that he received the said amount towards discharge of hand loan from P.W-1. 4) During trial in the lower Court, P.W-1 gives a go bye to the version contained in Ex.P-1 report. He turned hostile to the prosecution. It is his evidence that in July, 1998 he went to Podalakur for medical treatment for his kidney problem and took treatment from Dr.Krishna Reddy who after examination referred him to Dr.Ramachandra Reddy hospital at Nellore and that then only he came to know about his kidney problem and that he brought only Rs.130/- for necessary expenses and he spent the said amount towards travelling expenses, doctor’s fees and purchase of necessary medicines and he was having only Rs.70/- as remaining amount with him and that as the said amount was not sufficient for him to go to Nellore to take further medical treatment, he went to office of the accused and approached the accused and requested him for money. He says that the accused was known to him for the last 25 years and that he appraised the accused about his situation and requested him to give hand loan of Rs.1,000/- for the said purpose and that the accused was having only Rs.800/- and handed over that amount to him and that on the same day he went to Nellore and took necessary treatment in Dr.Ramachandra Reddy hospital and purchased necessary medicines and returned to the village on the next day evening. It is further version of P.W-1 that for preparation of the bill amount he was meeting the accused almost daily and the accused was directing him to approach one person or the other to do one thing or the other and that at last the accused chastised him for approaching him every day and thereupon he also retorted against the accused and that there was exchange of words between the accused and P.W-1. P.W-1 further says that on the advice of one villager by name Mooli Ramana Reddy he went to A.C.B office for getting the work done. According P.W-1, Ramana Reddy prepared Ex.P-1 and gave the same to him. With regard to the trap, P.W-1 says that on the instructions of the Deputy Superintendent of Police, he handed over the amount of Rs.800/- to the accused when the accused was found along with the Assistant Engineer (P.W-3). He says that thereafter he came out and gave pre-arranged signal when the A.C.B raid party came and recovered the tainted cash. He says that he was kept in the office of A.C.B for one week prior to giving statement to the Magistrate and that the D.S.P and his staff asked him to state the same contents of Ex.P-1 before the Magistrate. In cross-examination by the defence counsel, P.W-1 reiterated the story regarding obtaining of loan from the accused. 5) P.W-3 deposed that when the accused asked P.W-1 about the money, P.W-1 replied about he bringing the money and that the accused collected the amount from P.W-1. He further says that P.W-1 requested the accused to send his final bill. In cross-examination P.W-3 deposed that he does not know for what purpose P.W-1 gave the amount to the accused and that he does not know for what purpose the accused demanded P.W-1 for the amount. 6) P.W-2 is one of the mediators in Ex.P-4 pre-trap mediators’ report and Ex.P-14 post-trap mediators’ report. P.W-6 is the Deputy Superintendent of Police who arranged the trap and who seized M.O-7 tainted cash from the accused under the cover of Ex.P-14. In Ex.P-14, it is noted that when P.W-6 asked the accused as to what happened, the accused stated that P.W-1 repaid Rs.600/- to him which he gave few days back for medical expenses to him. It is contended by the Special Public Prosecutor that the spot explanation given by the accused in Ex.P-14 differs in quantum of the previous loan amount. It is not the evidence of P.W-1 that the accused counted the amount given by him before keeping it in his pocket. The above contents of Ex.P- 14 shows that the accused propounded loan theory at the spot itself. Simply because there is difference in amount in the statement of the accused contained in Ex.P-14, it cannot be said that the loan theory of the accused is liable to be rejected. Assuming for the sake of argument that loan theory put forward by the accused is false, even then there is no further evidence on behalf of the prosecution to prove demand and acceptance of M.O-7 tainted amount of Rs.800/- towards illegal gratification. Without proof of demand and acceptance of bribe by the accused, the prosecution is not going to succeed on the mere demolition of loan theory put forward by the accused. 7) It is contended by the Special Public Prosecutor that P.Ws 2 and 6 and Ex.P-14 proved receipt of gratification of Rs.800/- covered by M.O-7 by the accused from P.W-1 and that therefore, the demand of bribe has to be presumed under Section 20(1) of the Act. He placed reliance on M.Narsinga Rao V. State of A.P.[1] in support of his contention. The said decision does not support the contention put forward by the Special Public Prosecutor. The presumption under Section 20(1) of the Act is in respect of motive or reward for the illegal gratification received by the public servant and it is not in respect of demand made by the public servant for illegal gratification. In M.Narsinga Rao (1 supra) while reiterating Madhukar Bhaskarrao Joshi V. State of Maharashtra[2], the Supreme Court held that the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification and that when once the said premise is established, the inference to be drawn to the said gratification was accepted as a motive or reward for doing or for forbearing to do any official Act. 8) In C.M.Girish Babu V. C.B.I, Cochin[3] the Supreme Court held that recovery of tainted money itself is not sufficient to convict the appellant under Section 7 of the Act with the aid of the presumption under Section 20(1) of the Act. 9) In Banarsi Dass V. State of Haryana[4], the Supreme Court after referring to the entire case law on the subject observed as follows: “11. To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused.” 10) In the light of the above case law, if the evidence in this case is scrutinised, it is evident that the prosecution has miserably failed to prove not only demand of bribe or illegal gratification by the accused, but also acceptance of gratification by the accused. In the absence of proof of demand and acceptance of gratification, mere recovery of tainted cash of Rs.800/- from the accused will not make the accused liable under any of the charges. The lower Court after considering the material on record came to a right conclusion in favour of the accused. I do not find any reasons to come to a different conclusion in this appeal. 11) Accordingly, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J April 28, 2011 ksh [1] AIR 2001 Supreme Court 318 [2] 2000 AIR SCW 4018=2000 Suppl 2 JT (SC) 458 [3] AIR 2009 Supreme Court 2022 [4] AIR 2010 Supreme Court 1589