THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 1377 OF 2002 JUDGMENT: This Criminal Appeal, under Section 374 of the Criminal Procedure Code, 1973, is directed against the Judgment, dated 29.11.2002 in C.C. No. 11 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- accused was found guilty for 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’) and accordingly, he was convicted and sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/- in default to undergo S.I for three months under each count. 2. The brief facts, which are necessary for disposal of this Appeal, may be stated as follows: The accused officer was working as Sub-Inspector of Police, Revanur Police Station of Kurnool District. On 17.04.1997, while P.W.1 was dismantling upstair premises of his house by engaging labourers, one rusted and unserviceable revolver was found in the wall. Thereupon, P.W.1 produced the same before the accused officer along with a complaint. The accused officer, in turn, produced the same before the Inspector of Police on the next day. The Inspector of Police instructed the accused to drop further action in the matter after registering a case under Section 102 of the Code of Criminal Procedure. Accordingly, on 19.04.1997, the accused officer obtained a fresh complaint from P.W.1 and registered a case in Crime No. 10 of 1997, under Section 102 of the Code of Criminal Procedure of Revanur Police Station and seized the weapon produced by P.W.1. On 20.04.1997, the accused officer secured the presence of P.W.1 in the Police Station and demanded illegal gratification of Rs.4,000/-. Then the accused officer himself bargained and reduced the amount to Rs.2,000/- and demanded him to pay the said amount, otherwise he would implicate him in a case and arrest him. Similarly, on 24.04.1997, the accused officer demanded bribe from P.W.1. Unwilling to pay the same to the accused officer, P.W.1 approached P.W.5 on the evening of 27.04.1997 and lodged Ex.P.2 complaint. P.W.5 registered a case in Crime No. 8/ACB-KUR/1997 under Sections 7 and 11 of the Act and investigated into the same. Thereafter, P.W.5 secured the presence of P.W.2 and another mediator and organized a trap against the accused officer on 28.04.1997. As per the directions of P.W.5, the tainted currency notes, M.O.9, were produced before P.W.5 and the mediators. The police noted the currency note numbers and also applied phenolphthalein powder and Ex.P5 pre-trap proceedings were scribed. Thereafter, P.W.1 alone went to the house of the accused officer. The trap party lead by P.W.5 took vantage positions near the house of the accused officer. P.W.1 entered into the temple at 04.15 p.m. on 28.04.1997. Immediately thereafter, he came out form the temple and gave a pre-arranged signal by wiping his face with handkerchief. On receipt of the said signal, the trap party rushed to the temple and found one person walking from the temple who is no other than the accused officer. When the right hand fingers of the accused officer were subjected to sodium carbonate solution test, the solution turned into pink color, whereas the left hand fingers turned into light pink color. As indicated by the accused officer, the tainted currency notes have been seized from the umbrella, which was found hung to a bamboo stick close to the roof of the portion of the house. The numbers of the tainted currency notes seized from the umbrella were tallied with the numbers of the notes noted in Ex.P5. Then Ex.P6 - post-trap proceedings were drafted. The resultant solutions have been collected and preserved. P.W.6 - Investigating Officer, took up further investigation, examined the witnesses and after completion of investigation, filed the charge sheet. The charges levelled against the accused are: FIRSTLY: That you being a public servant working as S.I. of Police, Revanur P.S., Kurnool Dist. on 20.4.1997 demanded Rs.4,000/- from Ramireddy Siva Reddy r/o Revanur Village as illegal gratification other than legal remuneration for doing the official favour viz. not to arrest him and not implicating him in the case as an accused and when he expressed his inability to pay the same, you reduced it to Rs.2,000/- and on 24.4.97 you visited his house and renewed the demand and in pursuance of the same demands, on 28.4.97 you demanded and accepted at your residence the tainted amount of Rs.2,000/- from said Ramireddy Shiva Reddy as illegal gratification other than legal remuneration as a motive or reward for doing an official favour viz. not to arrest him or implicate him as an accused and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988 and within my cognizance. SECONDLY: That you being a public servant working as S.I. of Police, Revanur P.S., on the dates, time and place as mentioned in the 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 the extent of Rs.2,000/- in pursuance of your earlier demands from Ramireddy Shiva Reddy for the abovesaid purpose and thereby committed the offence of misconduct specified in Section 13(1)(d) punishable under Section 13(2) of Prevention of Corruption Act, 1988 and within my cognizance. 3. When the 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 6 and marked Ex.P1 to P17 besides the case property, M.Os.1 to 13. On behalf of the accused, D.Ws.1 and 2 were examined, but no documents were marked. 5. The trial Court, after considering the evidence on record, found the accused guilty for the charges levelled against him and accordingly, convicted and sentenced him as stated supra. Therefore, the present Appeal is filed. 6. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused officer of the offences with which he was charged and whether the judgment of the trial Court is correct or not? 7. Mr. A. Viswanath, learned counsel appearing for the appellant/accused officer contended that with regard to the demand and acceptance of bribe from P.W.1, there is absolutely no evidence on record, inasmuch as P.W.1 turned hostile and P.Ws.3, 5 and 6 have no personal knowledge about the alleged demand and acceptance of bribe by the accused officer, that mere recovery of tainted currency notes, at the instance of the accused, is not an offence unless the prosecution proves the case that there was demand and acceptance of bribe, that the accused officer has given a proper explanation as to why the solution turned into pink colour when his both hand fingers were subjected to sodium carbonate solution test and all these aspects have not been considered by the trial Court and hence, he prayed to set aside the convictions and sentences recorded by the trial Court. 8. On the other hand, Mr. V. Ravi Kiran Rao, learned Standing Counsel appearing for ACB cases contended that official favour to be shown to P.W.1 by the accused officer was pending prior to the trap, that in spite of giving instructions by P.W.4 to the accused officer to drop further action in Crime No. 10 of 1997 under Section 102 of the Code of Criminal Procedure, he has not sent any proceedings to the Court concerned for dropping further action, that as pointed out by the accused officer, the tainted currency notes - M.O.9 were seized from the umbrella, which was hung to the bamboo hook in the house of the accused officer, that there is no reason for P.Ws.2, 3 and 5 to speak falsehood against the accused officer, that the trial Court, after an elaborate consideration of the evidence on record, rightly convicted and sentenced the accused officer and therefore, there are no grounds to interfere with the same. 9. 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. 10. P.W.1 is a resident of Revanur Village. He is an agriculturist. He purchased a house from Sri B. Tulasi Reddy, on the basis of an agreement of sale, by paying Rs.40,000/-. Thereafter, he obtained a sale deed under the original of Ex.P1 on 17.04.1997. While he was getting repairs to the house, he found one old country- made revolver in the wall. Then, he went to the police station in which the accused officer was working as a Sub-Inspector of Police. The accused officer instructed him to meet him on the next day. Accordingly, on the next day, he went to the Police Station, from there to the Inspector of Police, Koilkuntla. The accused officer produced the revolver before the Inspector of Police. After obtaining instructions from the superior officers, the Inspector of Police directed P.W.1 to give a report. Accordingly, he lodged a report. Two or three days thereafter, one constable Siddaiah came to the village and informed him that the accused officer wanted to register a case against him. Thereupon, he was taken to ACB Office. He admitted that Ex.P2 was the complaint given by him, but he stated that it was drafted at the instance of the Head Constable, Siddaiah. He has given a complete go-bye to his earlier version in Ex.P2 and also the statement recorded by the II Additional Judicial Magistrate of I Class, Kurnool, which was marked as Ex.P3. Similarly, he resiled from the statement recorded by the Investigating Officer, under Section 161(3) Cr.P.C. The complaint, statements of P.W.1 recorded under Sections 164 and 161 Cr.P.C. were marked as Exs.P2 to P4 respectively. There cannot be any dispute that Exs.P2 and P4 cannot be used for any other purpose except for corroborating or contradicting the witnesses in the manner provided under Sections 157 and 145 of the Indian Evidence Act. Similarly, Ex.P.4 cannot be used for any other purpose except for contradicting the witnesses. In view of the fact that P.W.1 resiled from his earlier statements, the prosecution rightly sought permission of the trial Court to declare him as hostile and to cross-examine him. The law is well settled that once a witness is turned hostile, it does not mean his evidence would be wiped out from the record. Such part of his testimony, which inspires confidence, can be used to corroborate the other evidence, if any, available on record. But, in the instant case that even after cross- examination, nothing has been elicited from the evidence of P.W.1, so as to infer that the accused officer demanded Rs.4,000/- in the first instance for not arresting and registering a case against P.W.1 and the said amount was reduced to Rs.2,000/- after bargain. When P.W.1 went to the Police Station and handed over the revolver found in his house, the accused officer asked him to come on the next day to go to Koilkuntla to meet the Inspector of Police. As per the instructions of P.W.4 - Inspector of Police, the accused officer registered a case on 19.04.1997 in Crime No. 10 of 1997 under Section 102 of the Code of Criminal Procedure. Admittedly, the accused officer did not deposit the weapon into the Court and on 07.05.1997, he went to the Police Station and sent the weapon to the Court and dropped further action. No case was registered against P.W.1. Therefore, the question of showing any official favour to P.W.1 by the accused officer, does not arise. The accused officer promptly registered a case, but only thing is that he did not send the weapon to the Court. In view of the fact that P.W.1 did not support the case of the prosecution, there is absolutely no evidence to infer that the accused officer demanded and accepted money from P.W.1 to show any official favour. 11. Coming to the seizure of tainted currency notes, M.O.9, P.W.2 is the mediator. He stated that Ex.P5 - pre-trap proceedings were drafted duly noting down the numbers by applying phenolphthalein powder. On receipt of pre-arranged signal, P.Ws.2 and 5 rushed to the house of the accused. When both hand fingers of the accused were subjected to sodium carbonate solution test, the solution turned into pink colour. As pointed out by the accused officer, the tainted currency notes were found in the umbrella, which was hanged to a bamboo stick in the front portion of his house. The numbers of tainted currency notes have been tallied with the numbers noted in Ex.P5 - pre-trap proceedings. With regard to the recovery of tainted notes, the evidence of P.Ws.2 and 5 coupled with the recitals in Ex.P6 is consistent. There is no other reason to disbelieve the evidence of P.Ws. 2 and 5 and the recitals in Ex.P6. 12. The learned counsel for the appellant contended that mere recovery of tainted currency notes from the accused officer without there being any proof of demand and acceptance of bribe, is not an offence under Sections 7 and 13(1)(d) of the Act. To support his contention, he relied upon a judgment of the Supreme Court in A.Subair v. State of Kerala[1], wherein it has been held as under: “ 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 of 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.” He also relied upon another judgment of the Supreme Court in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala[2], wherein, in paragraph 18, it has been held as under: “ In Suraj Mal v. State (Delhi Admin.)[3], this Court took the view that (at SCC P. 727, para 2) 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.” 13. From the above judgments, it is clear that mere recovery of tainted currency notes at the instance of the accused officer by itself is not an offence punishable unless the prosecution shows that the accused officer voluntarily accepted the money knowing it to be bribe. There must be proof of demand or request from the accused officer for a valuable thing or pecuniary advantage. Such evidence is lacking in this case. For the reasons best known to P.W.1, he did not support the case of the prosecution. Following the ratio laid down in the aforementioned two decisions, it can be said that mere recovery of the tainted currency notes from the umbrella, as pointed out by the accused officer, by itself is not an offence punishable under Sections 7 or 13(1)(d) of the Act. These aspects have not been taken into consideration by the trial Court and it came to a wrong conclusion. The prosecution failed to establish the guilt of the accused officer beyond reasonable doubt of the charges under Sections 7 and 13(1)(d) read with 13(2) of the Act. Therefore, the accused is entitled to be given the benefit of doubt. 14. The Criminal Appeal is accordingly allowed, setting aside the judgment, dated 29.11.2002 in C.C.No. 11 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) read with 13(2) of the Act and accordingly, he is acquitted of the said charges. Bail bonds of the appellant-accused shall stand cancelled. Fine amount, if any, paid by the appellant – accused officer shall be returned to him. ---------------------- (K. C. BHANU, J) 14th September 2009 ksld [1] (2009) 3 Supreme Court Cases (Cri.) 85 [2] (2009) 2 Supreme Court Cases (Cri) 1 [3] (1979) 4 SCC 725 : 1980 SCC (Cri) 159