APHC010335082009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI ■I'Jila /C-' ■1^? TUESDAY,THE SEVENTEENTH DAY OF JUNE ' TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 397 OF 2009 Appeal under Section 374(2) of Cr.P.C, against the Judgment of the Special Judge for ACB Cases, Visakhapatnam, in C.C.No. 21 of 2003, dated 28th day of February 2009. Between: 1. Sri Challa Purushottam (Died) per L.R. Daughter 2. Challa Prathibha Charitra, D/o.Late Ch. Purushottam, C/o. Vanapalli Dinesh, aged about 36 years, D.No.3-250, Street No.7, Adarsh Nagar, Old Dairy Farm, Visakhapatnam Urban, Visakhapatnam - 530040. Since Appellant has died. Legal representative of Appellant i.e., Challa Prathibha Charitra is brought on record as Appellant, as per Court order dated 11.07.2024 in I.A.No.3 of 2024 in Crl.A.No.397 of 2009. ...LR/Petitioner/Appellant AND The State of AP Rep by Special Public Prosecutor, rep.by Inspector of Police, ACB, Visakhapatnam Range, Visakhapatnam, Rep by Special Public Prosecutor, High Court, Amaravathi ...Respondent/Complainant Coupsel for the Appellant: Sri A Hariprasad Reddy Counsel for the Respondent: Sri S.Syam Sunder Rao Standing Counsel cum Sliecial Public Prosecutor For ACB the Court made the following order: 7 0 • APHC010335082009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] slv: TUESDAY,THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 397/2009 Between: 1.SRI CHALLA PURUSHOTTAM (DIED) PER LR. DAUGHTER, S/0. LATE PAPAIAH, MANUAL REVENUE OFFICER, KOYYURU ADARSHNAGAR, NEAR DAIRY FARM,. 2. CHALLA PRATHIBHA CHARITRA,, D/O.LATE CH. PURUSHOTTAM, C/0. VANAPALLI DINESH, AGED ABOUT 36 YEARS, D.NO.3-250, STREET N0.7, ADARSH NAGAR, OLD DAIRY FARM, VISAKHAPATNAM URBAN, VISAKHAPATNAM - 530040. SINCE APPELLANT IS DIED, LEGAL REPRESENTATIVE OF APPELLANT I.E., CHALLA PRATHIBHA CHARITRA IS BROUGHT ON RECORD AS APPELLANT, AS PER COURT ORDER DATED 11.07.2024 IN I.A.N0.3 OF 2024 IN CRL.A.N0.397 OF 2009. R/0. D.NO. 3-32, ...APELLANT(S) AND 1.THE STATE OF A P REP BY SPL PP, rep.by Inspector of Police, ACB, Visakhapatnam Range, Visakhapatnam, Rep by Spl. Public Prosecutor, High Court, Hyderabad. ...RESPODENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to present this Memorandum of Grounds of Criminal Appeal to this Hon'ble Court against the Judgment of the Special Judge for ACB Cases, Visakhapatnam, in C.C.No. 21 of 2003, dated 28th day of february 2009, lA NO: 1 OF 2009fCRLAMP 944 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence passed by the Special Judge for ACB Cases, Visakhaptnam, in C.C.No. 21 of 2003, dated 28-2-2009, and jfim. 2 SRK, J Crl.Appeal No.397 of 2009 release the petitioner on bail, pending disposal of the Criminal Appeal before this HOn'ble Court lA NO: 1 OF 2024 % Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to condone delay of 387 days in filing the Legal Representative (Leave Petition) before this Hon'ble High Court of A.P., and pass lA NO: 2 OF 2024 ^ Petition under Section 151 CPC — praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant leave to the petitioner to come on record as legal representative of the appellant and to continue the CrI.A.No. 397 of 2009 before the Hon'ble High Court of A.P., and pass lA NO: 3 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to bring on Pr? A Mn deceased Appellant in CrI.A.No. 397 of 2009 before this Hon'ble High Court of pending disposal of the CrI.A. before this pass Counsel for the Apellant(S): 1 .A HARIPRASAD REDDY Counsel for the Respodent: 1.S.SYAM SUNDER RAO SC cum Spl P.P. For ACB The Court made the following; pending A.P Hon'ble Court, and THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL APPEAL NO. 397 OF 2009 JUDGMENT: This Criminal Appeal has been preferred against the judgment dated 28.02.2009 passed in C.C.No.21 of 2003 by learned Special Judge for ACB Cases, Visakhapatnam. In the aforesaid C.C., the appellant/accused officer was tried for the offences punishable under Sections 7 and 13 (2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 (for short 'the Act'). By judgment, dated 28.02.2009, the learned Special Judge found the accused officer guilty of the offences under Sections 7 and 13(l)(d) read with 13(2) of the Act and, accordingly convicted him of the said offences and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs.500/-, in default to suffer simple imprisonment for one month. for the offence under Section 7 of the Act, and to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months, for the offence under Section 13(l)(d) read with 13(2) of the Act. Both the sentences of imprisonment were directed to run concurrently. The tainted amount of Rs.1500/- was ordered to be confiscated to the State. 2 SRK, J Crl.Appeal No.397 of 2009 •1^ . 2. Case of the prosecution is as follows. PWl-Appanna Sree Ramulu is the resident of Pattabaleswaram Village of Koyyuru Mandal, is the defacto complainant. His niece, LW2- Ms.Gadiraju Papayamma, got the seat in the Engineering College, Andhra University. She got Engineering seat on the temporary caste certificate issued by the A.O. PWl was looking after the issue of getting permanent caste certificate for his niece and met the A.O. on 06.01.2002 on the eve of Janmabhoomi Programme and A.O. advised PWl to visit the office with the application. Accordingly, PWl took the application of Papayamma and went to the M.R.O. office in the first week of January, 2002. The A.O. enquired with PWl whether his niece joined in the Engineering College and also demanded an amount of Rs.3000/- as bribe to issue permanent caste certificate. PWl expressed his inability to pay the demanded amount. The accused officer refused to take the application and asked to come along with bribe amount. Again, PWl approached A.O. on 01.02.2002 along with application. A.O. questioned the PWl whether he brought the bribe amount. Again, PWl expressed his inability to pay the demanded amount. Again 07.02.2002, PWl approached the AO in the Mandal Revenue Office, Koyyuru. A.O. ascertained with PWl about the demanded amount and informed that unless and until the demanded amount of Rs.3000/- is paid, permanent caste certificate would not be issued. PWl reluctantly agreed to pay the demanded amount, but he was not willing to pay the on 3 SRK, J Crl.Appeal No.397 of 2009 bribe amount. As such, PWl approached the ACB Police, Visakhapatnam on the same day at 16.30 hours and informed about the alleged demand. PWl filed the written complaint. The Dy.SP, ACB registered the crime for the offences under Sections 7, (13) (2) r/w l(l)(d) and 15 of PC Act on 08.02.2002 at 08.00 hours. On 08.02.2022, the Dy.SP arranged pre-trap and post-trap proceedings. the currency notes of Rs.3,000/- produced by PWl were tainted with Phenolphthalein powder and same amount was given to PWl to pay the same on demand only. Pre-trap proceedings were scribed by one of the mediators. On the same day, the trap party along with PWl went to the MRO office, Koyyuru, where PWl went to the MRO office. and on demand tainted amount was given to A.O. A.O. received the amount and kept in his left side pant pocket. After receiving the pre arranged signal, the ACB trap party entered in the MRO office and trapped the AO, recovered the tainted amount of Rs.3,000/-. On production by AO, from his left side pant pocket, the chemical test was conducted on both hand fingers and also on inner linings of left side pant pocket of AO. The result was positive. The post trap proceedings were scribed by one of the mediators. After completing the investigation and examining the witnesses and obtaining prosecution sanction order vide GO.Ms.No.472 dated 27.03.2003 from the competent authority, charge-sheet was filed. The investigation established that the A.O. demanded and accepted illegal gratification of 4 SRK, J Crl.Appeal No.397 of 2009 Rs.3,000/- from PWl for doing official favour for issuance of integrated caste certificate (Scheduled Tribe) to G.Papayamma. •f On appearance of the accused officer, copies of documents were furnished to him as required under Section 207 Cr.P.C. and, thereafter, charges under Sections 7 and 13(l)(d) read with 13(2) of the Act were framed against the accused officer, read over the contents and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. 3. 4. On behalf of the prosecution, PWs.l to 4 were examined and Exs.Pl to P20, including P2(A) and MOs 1 to 8 were marked. After closure of the prosecution evidence, accused officer was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of prosecution witnesses, for which he denied, but did not choose to examine any witnesses his behalf. 5. on 6. The learned Special Judge, on consideration of the entire oral and documentary evidence on record, found the accused officer guilty of the offences under Sections 7 and 13(l)(d) read with 13(2) of the Act and, accordingly, convicted and sentenced him as stated supra. Aggrieved by the same, the present Criminal Appeal has been preferred. 5 ® ■ SRK, J Crl.AppealNo.397 of 2009 Heard learned counsel Sri.A.Hari Prasad Reddy on behalf of the appellant and learned standing counsel Sri.S.Syam Sundar Rao, for the A.C.B. 7. 8. Learned counsel for the appellant submits that the entire case rests on the evidence of PWl, who is the informant. PWl did not support the prosecution case and he was treated hostile by the In the absence of the evidence of PWl, there is prosecution. absolutely no other corroborative evidence in order to convict the accused officer. 9. Learned counsel further submitted that it is evident from the evidence on record that there is no demand for bribe which has been made by the accused officer. According to him, PWl categorically stated in his cross examination that on earlier occasions, the accused officer did not make any demand for the bribe amount. 10. Learned counsel further submitted that that even according to the informant, the amount of Rs.3000/- was kept on the table of the accused officer and when he was going out of the office, PWl categorically stated that the accused officer was calling PWl back but he did not listen and went out and gave a pre-arranged signal. Taking all these circumstances into account, there is any amount of ambiguity as to how the amounts have been recovered from the possession of 6 SRK, J Crl.Appeal No.397 of 2009 accused officer in the absence of any demand made by the accused He submits that the learned Special Judge did not take all these aspects into consideration and erred in convicting and sentencing the appellant/accused officer, in the absence of any substantive evidence, and hence, he prays to set aside the conviction and sentence officer. recorded by the learned Special Judge. 11. Per contra, learned Special Public Prosecutor appearing on behalf of the State submitted that though PWl did not support the case and he was treated hostile, however, his evidence has been corroborated with other evidence. He further submitted that though there is no accompanying witness to PWl, the other prosecution witnesses who are examined on behalf of the prosecution did support the evidence of PWl. 12. Learned Special Public Prosecutor further submitted that there is absolutely no explanation from the accused officer as to finding of the tainted amount in the pant pocket of the accused officer. This fact is sufficient enough to come to a conclusion that the learned Special Judge has rightly convicted the accused and thus, warrants no interference by this Court. Substance of 1^^ charge against the accused officer is that on 08.02.2002, at about 07.30 p.m in the office of the accused officer, the 13. 7 SRK, J Crl.AppealNo.397 of 2009 accused officer, being public servant, accepted a sum of Rs.3,000/- from one Sri.Appanna Sree Ramulu, as a gratification other than legal remuneration for doing official favour in the matter of issuance of caste (S.T. certificate) to his niece Ms.Gadiraju Papayamma, and hence, he is liable for punishment under Section 7 of the Act. The second charge is that on the same day, time and place mentioned supra, the accused officer, by means of corrupt and illegal means or by abusing his position as such public servant, obtained for himself pecuniary advantage to an extent of Rs.3,000/- from said Aparna Sree Ramulu, and thereby committed an offence under Section 13 (1) (d) of the Act, punishable under Section 13 (2) of the Act. 14. PWl is the informant, who set the criminal law into motion by lodging Ex.Pl-written complaint. He is a resident of Balaram Village, Koyyuru Mandal and he is an agriculturist. In the year 2001, his niece i.e. Ms. G. Papayamma, got engineering seat in Andhra University, Visakhapatnam. At the time of counseling, temporary caste certificate was produced by LW2-G.Papayamma. The temporary caste certificate was issued by the M.R.O., Koyyur Mandal. The accused officer was the M.R.O. Koyyuru at that time. The college authorities directed a proforma caste certificate. The accused officer went to his village in the month of January, 2001 to attend Janmabhoomi Programme. At that time, PWl met the accused officer in his village for want of proforma 8 SRK, J Crl.Appeal No.397 of 2009 caste certificate. The accused officer informed PWl to come to the office along with written application. In the last week of January, 2002, PWl went to the M.R.O. office and met the accused officer. The accused officer asked to affix the stamp on the application, accordingly, PWl affixed stamp on the application. The then Revenue Inspector one Guruvulu informed PWl that Rs.3000/- is required to get the proforma caste certificate. The said Revenue Inspector also informed that the amount is payable to accused officer. PW.l's application has not been received in the office and he expressed his inability to pay the demanded amount and hence, he returned to his village. Again on 01.02.2002, PWl met the accused officer and requested to issue caste certificate. The accused officer informed the PWl to follow the instructions of the staff in the office. The same fact has been reiterated on 07.02.2002, when P.W.l met the accused officer. Thereafter, the said Guruvulu refused to PWl's application and demanded to pay amount payable to the accused officer. On the same day, i.e. 07.02.2002, PWl filed written complaint Ex.Pl. As per instructions of A.C.B. Police, PWl, on the next day i.e.08.02.2002, with an application along with the proposed bribe amount of Rs.3000/-, went to the office of A.C.B., the procedure has been explained to the PWl. Ex.P9 is the pre-trap proceedings dated 08.02.2002. On the same day at about 07.20 p.m., PWl, along with A.C.B. staff, proceeded to the office of the accused officer. PWl entered the 9 SRK, J CrLAppeal No.397 of 2009 chambers of the accused officer. On seeing PWl, accused officer enquired him about his purpose of visit to the office. Thereafter, PWl placed the application and copies of the certificate under Ex.P2 and also PWl kept the amount on the table stating that he was asked to pay the amount of Rs.3000/- by the Revenue Inspector. Thereafter, PWl was asked to come on Monday. Thereafter, PWl went out of the chambers of accused officer and gave the pre-arranged signal. PW2, who worked as Tahsildar in the year 2002, deposed that 15. social security identity procedure will be followed to issue caste certificate for the purpose of employment. The certificate of G.Payayamma was confronted with PW2. He identified the signature of accused officer thereon. PW3 is the mediator for the pre-trap and post trap proceedings. 16. He deposed about his presence and participation in pre-trap and post trap proceedings. His evidence is not much of relevance to establish the guilt of the accused officer. PW4, the Dy. Superintendent of Police, A.C.B, Visakhapatnam, is 17. the officer, who conducted pretrap and post trap proceedings under EXS.P9 and P18 respectively. PW4 followed the procedure contemplated under the law in conducting post trap proceedings as 10 SRK, J Crl.Appeal No.397 of 2009 ion of the investigation, PW4 filed ■ ■ i against the accused. After completion charge-sheet. Learned counsel for the appellant submitted that sole witness and he was treated as legal evidence to of bribe amount by of the evidence of P.W.l goes to show 18. i.e. PWl, did not support the prosecution case hostile by the prosecution, and there is no I substantiate the alleged demand and acceptance the accused officer. A perusal the first week of January, 2002, one Guruvulu, Revenue that in required to get proforma informed him that Rs.3,000/- was , and that the said amount is payable to the M.R.O. It evidence that on 01.02.2002, he went to the office of the Inspector caste certificate is his further and requested to issue caste accused officer informed that he would M.R.O., met the accused officer certificate, and on that, the of staff in the office. It is his further evidence follow the instructions 02.2002, he went to the said office, met the accused officer to which the accused officer asked him to give on 07. issue caste certificate, for the application to the staff in the office and also to follow instructions stated that the said Guruvulu, Revenue and demanded Rs.3,000/- given by the staff. He further refused to receive his application Inspector payable to the accused officer. 11 SRK, J Crl.Appeal No.397 of 2009 As regards the alleged demand on the date of the trap, it is the evidence of P.W.l that on the date of trap, when he entered the office of the M.R.O., the accused officer was talking with some other persons in his chamber; he waited for one hour and entered in the chamber, and on seeing P.W.l, the accused officer enquired with him about his purpose of visit, and on that, P.W.l placed the application and copies of certificates under Ex.P2 and also kept the amount on the table stating that he was asked to pay the amount by the Revenue Inspector. It is his further evidence that on that, the accused asked him to come on Monday, and when P.W.l requested to give the 19. certificate on the same day, the accused officer replied that the Revenue Inspector Guruvulu was not available to prepare the certificate. At this stage, at the request of the learned Special Public Prosecutor, P.W.l was declared hostile, and P.W.l was cross-examined by prosecution. In cross-examination, he denied a suggestion that the accused officer demanded Rs.3,000/- from him on 06.01.2002, 01.02.2002 and 07.02.2002. He also denied a suggestion that he handed over the tainted amount to the accused officer on his demand and the accused officer kept the amount received in his shirt pocket. 20. Merely because PWl was treated hostile, the entire prosecution case cannot be thrown out on that ground. Court has to go through the evidence meticulously in order to separate grain from the chaff. 12 SRK, J Crl.Appeal No.397 of 2009 There is absolutely no evidence on record to prove that the accused officer made any prior demand of bribe P.W.l to issue the caste certificate belonging to G.Papayamma. In the evidence of PWl, it is one R.I i.e., one Guruvulu, who has made demand to pay an amount of Rs.3000/- for issuance of caste certificate to PWl. It is also stated that the said amount can be paid to the accused officer. Surprisingly, the prosecution has not shown the Revenue Inspector as one of the accused persons in the said case, nor he was examined as a witness on behalf of the prosecution. In the entire evidence of P.W.l, there is no whisper with regard to the demand made by the accused officer to do any official favour or any demand made by the accused officer the date of the trap. According to P.W.l, he kept the tainted money on the table of the accused officer on the fateful day. on 21. In order to attract an offence under Sections 7 and 13 (1) read with 13 (2) of the Prevention of Corruption Act, it is essential that all the ingredients of the aforesaid provisions have to be fulfilled. There should be a demand, acceptance and recovery of tainted amount from the possession of the accused officer. These three essential elements are necessary to prove the case of prosecution, and if any of the essential ingredients has not been proved, the entire prosecution has to be thrown out on the said ground. case 13 SRK, J Crl.Appeal No. 397 of 2009 In the present facts and circumstances of the case, there is no corroborative evidence except the evidence of PWl, who too did support the case of the prosecution. Even according to PWl, there i absolutely no demand made by the accused officer from P.W.l to an amount of Rs.3000/- in order to issue caste certificate belonging to G.Papayamma. Apart from the same, it is stated in the evidence of PWl that on the date of incident i.e.on 08.02.2002, at about 07.30 p.m., PWl went to the chambers of accused officer and on seeing PWl, accused officer is said to have asked as to for what purpose he visited the office. The general tendency of the human being that there is a demand made by the accused officer, the immediate reaction after seeing PWl would be, to ask whether bribe amount has been brought by P.w.l or not. In the present case, there is absolutely such demand made by the accused officer on seeing PWl. Apart from the same, it is further stated that PWl is said to have placed the tainted amount on the table of the accused officer, and when he was leaving the chambers of the accused officer, the accused officer called him in Telugu 'Babu Ilara', but he left the chambers without paying attention to the accused officer. 22. not IS pay once no 23. In the case on hand, there is no substantive piece of evidence to substantiate the earlier demands made by the accused officers. On this aspect, it is pertinent to refer to a decision in Hari Dev Sharma vs. 14 SRK, J Crl.Appeal No.397 of 2009 Court held thus State (Delhi Administrationf, the Hon'ble Supreme (paragraph No.3): appeal preferred by the appellant before us the first two charges on 'The High Court on did not accept the prosecution case on the ground that it would be unsafe to hold on the bare testimony of the complainant that Rs.20 had been paid to the appellant as alleged. Apparently, the High Court looked upon the complainant be believed unless his evidence was I witness not to ZLorated by other evidence. The High Court however accepted the other part of the prosecution case that the appellant caught while accepting Rs.70 as bribe from the had been complainant. One circumstance the learned Judge was that the complainant was being harassed his application ever since 1964 which appears to have impressed by various objections raised on when the property was purchased. It appears with the file only from July 1966, and however that the appellant started dealing the earliest of the notes made by him on the file was dated July 20, 1968. Admittedly, the complainant met the appellant for the hrst time on January 29, 1969 and, that being so. It is difficult to hold that the objections raised prior to this date were calculated the complainant It is hardly reasonable to that the appellant could anticipate what in fact followed, could not have been responsible for any 1964 and July 1966. But the main arises out of to put pressure on think Besides, the appellant objection raised between difficulty we fee! in accepting the prosecution case the fact that the High Court disbelieved the part of it which. according to the prosecution, was the genesis of the case. Having disbelieved the story that the appellant had asked for a babe of RslOO of which Rs 20 was paid in advance, we do not think the High Court could reasonably proceed on i prosecudon case to affirm the order of the conviction passed by what was left of the (1977) 3 Supreme Court Cases 352. 15 SRK, J Crl.Appeal No.397 of 2009 the trial court. The prosecution case was one integrated story which the trial court had accepted, If the High Court did not find it possible to accept a vita! part of the story, it is difficult to see how the other part, which did not stand by itsel,f could be accepted. It was not the prosecution case that Rs 70 which was recovered from the appellant was the amount that the appellant had asked for from the complainant This was a new case made by the High Court. Undoubtedly there are circumstances In this case which are highly suspicious against the appellant, but the High Court having disbelieved an essential part of the prosecution case on which the other part was dependant, we do not consider it safe to sustain the conviction of the appellant Accordingly, we allow the appeal and set aside the order of conviction and sentences passed against the appellant" 24. There cannot be any dispute that the prosecution case is one integrated story. In view of lack of substantive evidence with regard to the alleged demand made by the appellants on the earlier occasion, it is difficult to accept a vital part of the story i.e. earlier demand made by the appellants on 06.01.2002, 01.02.2002 and 07.02.2002, which is the genesis of the case. In the absence of the same, the other part of the prosecution story did not stand by itself and the same is also not acceptable. 25. In P. Satyanarayana Murthy v. District Inspector of Poiice and Anr./ the Hon'ble Apex Court held that, mere possession and recovery of currency notes from an accused ^ (2015) 10 see 152 16 SRK, J Crl.Appeal No.397of2009 without proof of demand would not establish Section 7 as well as Section 13(l)(d)(i) & (ii) of the Act, 1988. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act, 1988. Dealing with the same, the Court observed as under: "The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (i) & (ii) of the Act and in absence thereo,f unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratiifcation or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." The said principle was reiterated by the Hon'ble Apex Court in Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjat^, as under:- "23. The proof of demand of illegal gratiifcation, thus, is the gravamen of the offence under Sections 7 and ^ (2017) 8 Supreme Court Cases 136. W 17 SRK, J Crl.Appeal No.397 of 2009 13(l)(d)(i) and (ii) of the Act and in absence thereo,f unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder. " 26. In fact, in CM. Sharma v. State of Andhra Pradesh etc.,^ the Hon'ble Apex Court held as under: "In support of the submission reliance has been placed on a decision of this Court in the case of Panaiai DamodarRathi k State of Maharashtra (1987) Suppi. SCC 266 and our attention has been drawn to the following paragraph of the judgment: "26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation ofpayment of the bribe to and recovery of the same from the accused with suspicion. // In Suraj Mai v. State (Delhi Admn.), (1979) 4 SCC 725 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. Another decision on which reliance is placed is the decision of this court in the case of State of Maharashtra V. Dyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in which it has been held as: ■’laws (SC) 2010 11 84. 18 SRK, J Crl.Appeal No.397 of 2009 "16. Indisputably, the demand of illegal gratiifcation is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisifed or not, the court must take into consideration the facts and circumstances brought on the record in their entirety." In State of Punjab v. Madan Mohan La! VermaF, the Hon'ble Supreme Court held that, mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification'. It is appropriate to incorporate paragraph No.7 of the said judgment, which reads thus; 27. "7. The law on the Issue Is well settled that demand of Illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an ^ 2013(3) MLJ (Crl) 565. 19 SRK, J Crl.Appeal No.397 of 2009 interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may iook for independent corroboration before convicting the accused person. " From the judgments referred to above, it is clear that the Hon'ble Apex Court has categorically held that, in order to prove charge under Sections 7 and 13 of Act, 1988 the prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. The Hon'ble Apex Court held that till that is accomplished, accused should be 28. considered to be innocent. The proof of demand of illegal gratification, thus, is the gravamen of offence under Sections 7 and 13(1) (d) and (ii) of Act, 1988 and in the absence thereof, unmistakably the charge, therefore, would fail. The Hon'ble Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand, ipso facto, would thus not be sufficient to bring home the charge under aforesaid two sections. 29. In the case on hand, there is no evidence to prove either the prior demand, or demand on the date of the trap, by the accused officer. In view of the principles laid down in the aforesaid judgments, this Court is of the view that the prosecution failed to establish the guilt of the appellant/ \ \ / 20 SRK, J Crl.Appeal No.397of 2009 accused officer of the offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act, 1988 beyond The learned Special Judge has not reasonable doubt. considered the evidence on record in proper perspective and erred in convicting the appellant/accused officer of the said charges. Hence, the conviction and sentence recorded by the learned Special Judge are liable to be set aside. 30. Accordingly, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused officer for the offences punishable under Sections 7, 11 and 13 (2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 in the Judgment 28.02.2009 passed in C.C.No.21 of 2003 by the learned Special Judge for ACB Cases, Visakhapatnam, are set aside. The appellant/accused officer is found not guilty of the offences punishable under Sections 7 and 13 (2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 and is accordingly acquitted of the said offences. The fine amount, if any, paid by the accused officer shall be refunded to him. Consequently, miscellaneous petitions, if any, pending in the Criminal Appeal shall stand closed. Sd/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Special Judge for ACB Cases, Visakhapatnam, Visakhapatnam district (with records) 2. The Inspector of Police, ACB, Visakhapatnam Range, Visakhapatnam district. 3. One CC to Sri. A Hariprasad Reddy Advocate [OPUC] 4. Two CCs to Sri. S.Syam Sunder Rao Standing Counsel cum Special Public Prosecutor For ACB [OUT] 5. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi 6. Two CD Copies Stu vna HIGH COURT DATED:17/06/2025 JUDGMENT CRLA NO. 397 OF 2009 ^ i si 0 9 SEP 2025 ntScctiH.^ * 1 / Co ALLOWING THE CRIMINAL APPEAL