I ■ IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI . TUESDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 1164 OF 2007 Appeal under Section 374(2) of Cr.P.C, against the Judgment in CC.No.13 of 2004 passed by the Special Judge for SPE & ACB Cases, Vijayawada, dt. 23-08-2007. Between: Vishnumolaka Narasimha Rao, S/o Venkateswarlu, Age : 52 years, R/o Guntur Rural Mandal, Guntur District. ...Appellant/Accused AND The State of AP, rep. by its Special Public Prosecutor, for SPE & ACB Cases, High Court ofA.P., at Amaravathi ...Respondent/Complainant Counsel for the Appellant: Sri. Harinadh Nidamanuri Counsel for the Respondent: Special Public Prosecutor-cum- Standing Counsel for ACB The Court made the following: 1 THB HONOURABLE SRI JUSTICE K SREENIVASA REDDY •V fy ■ i.' r ■:Vrr / i CRIMINAL APPEAL NO. 1164 OF 2007 ■'^4 : / / V t 4b JUDGMENT: V. Sole accused in C.C.No.l3 of 2004 on the file of the Special Judge for S.P.E & A.C.B. Cases, Vijayawada (for short ‘the Special Judge’), filed this Criminal Appeal challenging the judgment dated 23.08.2007 passed in the said C.C., whereunder and whereby he was convicted of the offences punishable under Sections 7 and 13 (2) read with 13 (l)(d) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 7of the Act and further sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for three months for the offence punishable under Section 13(2) read with 13(l)(d) of the Act, 1988, and both the sentences of imprisonment were ordered to run concurrently. 2. Case of the prosecution is as follows. The appellant/accused officer Assistant Engineer, office of the Officer (MPDO), Guntur Rural Mandal relevant point of time of the incident. working as Mandal Mandal Parishad Development Guntur district at the The informant (P.W.7), village, started Building at his village after the MPDO under ‘Draught up to slab by 11.4.2003 As per the scheme, 60% of was who the Sarpanch of Dasupal construction work of Mahila Mandal was em obtaining Ex.P5-work order from Relief Scheme’ and completed the work and was doing the remaining work, the amount will be disbursed to the workers in cash and the remaining 40% by way of distribution of rice, be carried on, under the The work had to supervision and control of the accused officer and his Work Inspector, and the accused officer has to distribute rice coupons to the workers. But, rice coupons were not given in order to secure rice for distribution to the workers under food for work programme, and about 5 tonnes of rice had to be given to him for the work so completed. P.W.7 requested the accused officer several times, including on 15.4.2003 and 19.4.2003, and the accused officer demanded Rs.2,500/- as 3 bribe to do the official favour. Again, on 30.04.2003 and 2.5.2003, P.W.7 met the accused officer and requested for issuance of the rice coupons, but the accused officer reiterated his demand for payment of the bribe and instructed him to pay the said amount on 3.5.2003 between 6.00 AM and 7.00 AM at his residence. Unwilling to pay the said demanded bribe amount, P.W.7 approached the District Inspector, ACB, Guntur and presented a report, pursuant to which, after completion of relevant formalities, a case in crime No.21/ACB-VJA/2003 was registered for the offence punishable under Section 7 of the Act. After completing pre-trap proceedings, trap was laid at the house of the accused officer at Flat No.208, Kilari Towers, near Koritapadu, Guntur town when he further demanded and accepted the bribe amount of Rs.2,500/- from PW.7. money was recovered from the right side pant pocket of the accused officer, and number of the said currency notes were tallied with the currency note numbers mentioned in pre-trap proceedings. During post-trap proceedings, chemical test conducted on both hands of the accused officer gave positive result. The inner lining of right side pant pocket of the accused officer also proved positive when subjected Tainted to Sodium 1 Carbonate solution test, and after completion of investigation, for the offences punishable under with 13 (1) (d) of the Act. After receipt of relevant documents police laid charge sheet Sections 7 and 13 (2) read 3. The case was taken on file for the offences under Sections 13 (l)(d) of the Act against the accused officer. On appearance of the accused officer, copies of case documents were furnished to him 7 and 13 (2) r/ w as provided under Sec.207 Cr.P.C.After hearing arguments of learned Special Public Prosecutor and the learned counsel for the accused officer, charges for the offences under Sections 7 and 13 (2) read with 13 (l)(d) of the Act were framed, read over and explained to the accused officer, which he pleaded not guilty and claimed to be tried. for 4. To substantiate its case, the prosecution examined PWs.l to 9 and Exs.P.l to P.19, and MOs.l Ex.Xl was marked through P.W.5. 5. After closure of the prosecution evidence to 11 were got marked. the accused officer was examined under Section 313 Cr.P.C. by explaining the incriminating evidence against him. He denied the evidence. 5 r No oral evidence was adduced on behalf of defence, but Ex.Dl was got marked on his behalf. 6. The learned Special Judge, after appreciating the evidence record, found the accused officer guilty of the offences punishable under Sections 7 and 13 (2) read with 13 (1) (d) of the Act, accordingly convicted and sentenced him, as stated supra. Challenging the same, the present Criminal Appeal is preferred by the accused officer. on 7. Heard both the learned counsel for the appellant/accused officer and the learned Special Public Prosecutor-cum-Standing Counsel for ACB and also perused the evidence on record. 8. The learned counsel for the appellant/accused officer contended that the prosecution failed to establish the vital aspect of ‘demand’ allegedly made by the accused officer; that the material prosecution witness P.W.7 (informant) did support the case of prosecution and he completely resiled from his earlier version while deposing before the Court and he did not depose about either the demand or acceptance of tainted currency as bribe by the accused officer, as alleged by the He submits that nothing has been elicited in his not prosecution. 6 cross-examination by the Public Prosecutor to connect the , and there is no legal or acceptance of the bribe accused officer with the offences alleged evidence to prove either demand amount by the accused officer, circumstantial evidence to that effect. and there is also no He submits that the prosecution failed to establish the official favour the accused officer pending with on the date of the trap. It is his further prosecution failed to establish the alleged or acceptance of illegal gratification by the as submission that the demand accused necessaiy ingredients for the offences under 13 (2) of the Act, 1988. He officer, which are Sections 7 and 13(l)(d) read with further submits that even otherwise. mere recoveiy of tainted currency notes, by itself, does not establish the offences against the accused officer, considered these alleged and the Special Judge has not aspects in right perspective and erred i convicting and sentencing the accused officer. m Hence, he prayed to allow the appeal and set aside the convictions and sentences passed by the learned Special Judge. 9. On the other hand, the learned Standing Counsel for respondent/A.C.B. contended that there is no dispute with regard to the fact that the accused officer the was a public servant 7 under Section 2 (c) of the Act, 1988. He contended that merely because the material prosecution witness P.W.7 did not support the case of prosecution and was declared hostile, his entire evidence cannot be effaced from record, on the said ground, and such part of his testimony which inspires confidence can be taken into consideration. It is his further submission that Sodium Carbonate test conducted on hands of the accused officer and inner linings of right side pant pocket of accused officer, gave positive result; that seizure of tainted currency notes from the possession of the accused officer is established. In support of his contention, the learned Special Public Prosecutor appearing for ACB relied on a decision of the Hon^ble Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi)^, wherein it is held thus:(paragraph 88) “88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(l)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of ' (2023) 4 see 731 8 fact. This fact in issue can h evidence which can b^in “e natuT^f direct documentaiy evidence. nature of oral evidence 88.3. (c) Further, the fart ■ demand and acceptance of the proof of o'rT^'^a^a '^'"'''^'^sfantial evidence fr&e oral and documentary evidence. ^ absence of direct 88*4. (d) In order to prove the efrf ■ • demand and acceptanw of illegal ‘he being any demand from^^L^pubfe*'’^®'®"'®''”‘hout ‘he^ simpfy accepts the offer ^d ‘h® latter gratification, it is a case of no ? ‘'ereives the the Act In such » f acceptance by the public servanr'"’ ^e (n) On the other hana vr demand and the bribegiver ™tes tenders the demanded gratification^ ‘he demand and received by the pubfic servLt it turn is gratiSon emttrfrl ‘tt ‘'™'~gS obfence under Sections -tmh ™a is in (azj In both or illegal as per Section 7 of a prior demand a gtver and tirre^aii^^ 'l^Jhiic"’: have to be proved by the prosecii; c"' ‘^'^Peetively other words, mere accem^ro™ “ ‘““o- In gratification without anytW^ L offence under Section 7 or^ q ^ not make it , respectively of the Act Thereforf *°”d and (ii). Act, in order to bring hoine the iff ®®‘^‘‘°n 7 of the offer which emanates frirthi K i, by the public servant which ” ®'Siver which is accepted Similarly, a Prior iimiidVS' pubf'^ ‘‘ “ accepted by the bribe-giver and af turn made which is received by the nublfa i ® P^^^ont illegal an an must be an an and (ii) of an^iUtp^^cTorbSmim o1 “ be made by a court of law bv w ^ gratification may the foundational fLts havJ T"' “ “'y »hen and documentary evid^dTot-in Te oral thereof. 9 On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (/) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue. Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(l)(d)(i) and (ii) of the Act. court as 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former IS a mandatory presumption while the latter is discretionary in nature.” He submits that though P.W.7 did not support the case of prosecution, demand and acceptance of illegal gratification also be proved by circumstantial evidence in the absence of direct oral and documentary evidence, and that from the can circumstances of the present case where recovery of tainted currency from the possession of the accused is established, coupled with the other evidence, the prosecution is able to 10 establish its case beyond all circumstantial evidence; reasonable doubt by adducin evidence adduced the guilt of the g that the by the prosecution clearly established for the offences -fudge considered these convicted and which he accused officer alleged against him, and the learned Special aspects in right perspective, accordingly sentenced the accused officer of the offences with was charged, and hence, he prays to dismiss the Criminal Appeal. 10. Now the point for determination iIS whether the prosecution i IS able to bring home iIts case against the appellant/accused officer for the offences the judgment of the alleged beyond reasonable doubt, and whether trial Court needs interference of this Court ? 11. 1''charge against the public servant accused officer iIS that he, being Engineer, office of Guntur district, demanded a working as Mandal Assistant the MPDO, Guntur Rural Mandal, pay bribe of Rs.2,500/ to from P.W.7, Sarpanch of Dasupalem issuing rice coupons and in village for doing official favour of i continuation of the above demand, his residence. on 3.5.2003 at about 8.25 further demanded AM, at and accepted 11 tl/ Rs.2,500/- from P.W.7 as illegal gratification other than remuneration for doing the official favour, committed an offence punishable under Section legal and thereby he 7 of the Act, IS that he, being a at his residence, accepted Rs.2,500/- from P.W.7 2nd charge against the accused officer i public servant, on 3.5.2003 at about 8.25 AM, further demanded and illegal gratification other as than legal remuneration for doing official favour of issuing of rice coupons, obtained for himself pecuniary advantage of Rs.2,500/- by abusing his position as public servant, and thereby committed 13 (1) (d) read with 13 (2) of the Act. an offence under Section 12. In order to attract an offence under Section 7 of the Act, 1988, the necessaiy ingredients to be established are that the accused officer is a public servant and that he obtained gratification other gratification was to do an official favour, (d) of the Act, 1988, if accepted or than legal remuneration and the Under Section 13(1) a public servant, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing pecuniao' advantage, he is guilty of criminal or misconduct punishable under Section 13 (2) of the Act, 1988. 12 13. The accused officer Engineer, office of the (MPDO), Guntur Rural Mandal, point of time of the incident, public servant within the 1988. working as Mandal Assistant Mandal Parishad Development Guntur district at the relevant There is no dispute that he was Officer was a meaning of Section 2 (c) of the Act, as Section Officer, Panchayat Raj A.P. Secretariat. P.W.5 worked and Rural Development, He deposed about to prosecute the issuance of Ex.Pl0-sanction order officer by Sri V.Nagi Reddy, Principal accused Secretary, Panchayat Raj Minister of Panchayat Raj. Mr. V.Nagi Reddy and deposed The same is not either disputed Department, after approval of the He identified signature of said that he dealt with the file. or denied. 14. Coming to evidence, P.W.7, who motion, deposed in his evidence that he Dasupalem village, and he worked from 2001 to 2006; that Ex.P4 set the criminal law into was resident of as Sarpanch of his village resolution was passed by his Panchayat on 08.01.2003 for construction of Mahila Mandali Building by handing over the site in survey No.313 to the MPDO; that on the same day, another resolution was passed 13 with regard to formation of committee to look after construction of the building of Mahila Mandali; that Sarpanch (i.e. P.W.7) is the Chairman of the said Committee. He further deposed thatEx.P5-work order was issued by the MPDO under Draught Relief Scheme, by handing over the site, and he completed the said work up to slab level by 11.4.2003. He deposed that as per the Scheme, amount will be disbursed to the workers i.e. 60% in cash and the remaining 40% by way of distribution of rice. He deposed that the work has to be carried on, under the supervision and control of the accused officer and his Work Inspector. 15. P.W.7 further deposed that the accused officer has to distribute rice coupons for the workers, and as on the date of raising the slab, rice was not given for distribution to the workers under the Food for Work programme and about 5 tonnes of rice had to be given to him for the work completed till He further deposed that though he requested the accused officer several times for supply of rice, he did not give it, and on 15.4.2003, 19.4.2003 and so also on 30.4.2003, he requested the accused for issuance of rice coupons, but the accused officer told that rice was not released to the work then. 14 carried on, by P.W.7 and i was released, and him when he It would be supplied on 30.4.2003, the as and when it accused got angry with approached for release of rice. P-W.7 further deposed that 1 16. then he approached ACB and gave Ex.P7-report with false He further deposed that come to their office contents against the accused that day, he officer. on was asked by on 3.5.2003 at about 6.00 the ACB to AM, along with Rs.2,500/ panchayat building, but mentioned in Ex.P7, Guntur at about 3.45 others; that he the report were - amount, which i - IS meant for the site of respect of the not in amount and accordingly, he AM and found C.I. went to ACB office, Guntur ACB and was not introduced to them and the two contents of not read over to him by any of them. P.W.7 further deposed 17. that at about 6.00 AM, he proceeded by his motor bike and he did not observe whether follow him to the house of the accused officer, the ACB police came there to He deposed that before house of the accused officer, he was not instructed ACB police; that he found door or not. proceeding to the anything by accused knocked the door, wife of the ; that on his enquiry. of the house of the officer closed, and when he accused officer came and opened the door 15 he was told that the accused officer was in the house and wife of the accused officer asked him to come to the spot where he stood; that he was asked by the accused officer to take seat i.e. on a bench, and the accused officer came there and sat by the side of the bench; that he gave cash of Rs.2,500/- to the accused officer, who took the amount and kept in his right side pant pocket, and in the meanwhile, C.I., ACB and 5 others He further deposed that he was not enquired by him by any of the ACB trap members as to what transpired between him and the accused officer prior to their arrival, and he was not examined by any of the ACB officials. He deposed thatEx.PlS is his signature in his statement under Section 164 CrPC and it contains his signatures on all papers. came there. With the permission of the Court, P.W.7 was declared hostile and he was cross-examined by the learned Special Even though P.W.7 was cross-examined by the prosecution, except putting suggestions, which have been denied by P.W.7, nothing incriminating against the accused officer has been elicited in the cross-examination of P.W.7 to connect him to the offences alleged, examination that the statement given by him before the 18. Public Prosecutor. He stated in cross- 16 Magistrate is a false statement. When he was recalled and examined for further examination, he stated that he had to pay an amount of Rs.2,500/- to P.W.6 towards site of panchayat building, and he gave Rs.2,500/- to the accused officer on the date of the trap in order to hand over the same to P.W.6, and that the accused officer neither demanded nor accepted any Therefore, there is no iota of recital in the bribe from him. evidence of P.W.7 either with regard to demand, both prior demand as well as demand on the date of the trap, acceptance of the alleged bribe amount by the accused officer. or 19. With regard to the aspect of pendency of an official favour with the accused officer, the evidence of P.W.l, who worked MPDO, Guntur Rural, is relevant. She deposed that 12.3.2003, construction work of Mahila Mandali Dasupalem village was entrusted to P.W.7 as on building in as per Ex.P4- Resolution of gram panchayat dated 08.1.2003, and since P.W.7 was Works Committee Chairman, the said work was entrusted to him. It is her further evidence that total estimate of the work was Rs. 1,50,000/-, and after completion, cost of the work was arrived at Rs. 1,46,359/-, out of which Rs.40,000/- had to be paid by way of distributing rice to the workers and 17 the remaining amount had to be paid in cash, that the aforesaid work was completed and the same check-measured by the Dy. E.E., and the accused officer recorded measurements in Ex.Pl-M-book, and page 13 thereof contains check measurements done by Dy.E.E. on 20.3.2003. She deposed that bill was prepared by the clerk concerned in his office after verifying the measurements given by the accused officer, and she signed pass order Ex.P2-noted in page No.45 of Ex.PI, that the bill was passed for Rs. 1,06,359/-, out of which was deducted towards seigniorage, and after deducting income tax payable, if any, which will be returned the time of passing final bill, Rs.88,990/- was given to P.W.7. P.W.l further deposed that rice component of Rs.40,000/- towards rice coupons, was not issued since the allotment not done by the District Collector, officer is the concerned employee who has coupons. She deposed was Rs. 17,369/- at was She deposed that accused to issue rice 20. In cross-examination P.W.l deposed that as per the guidelines, Panchayat Secretaiy has to issue rice coupon to the labour. She also deposed that examination, rice as on the date of her coupons were not issued. In Re- 1 coupons to 18 examinatio the Village Secret she stated that aiy through the they have to issue rice accused officer. 4'A 1 21. P.W.l was recalled and examined she deposed Guidelines on 20.06.2007. further In her cross-examination, Ex.Dl-Comprehensi Rozgar Yozan 27.01.2003 Government of Andhr the Village Secret shall be handed that as 12.03 of per Clause Sampoorna (S.c.)), (Relief) Department, ive on Grameena a (Spl. Component) (sgry Revenue issued by the a Pradesh, the aiy, and under coupons will be i no circumstances, the issued by coupons She deposed that over to the Guidelines, the contractor. per the above with the i as accused officer iIS nothing to do issue of rice coupons to the workers as well as to the contractor. 22. From a perusal of the I -guidelines, it is dear that to issue rice Panchayat Secretary evidence of p w i ■^■1’ coupled with accused officer has and it is the coupons. It coupons was not done by the District her evidence that Ex.DI the obligation no coupons to P.W.7 ’ who is obligated to issue rice IS also evident from were not issued si Collector. It i the evidence of since the allotment RW.l that rice IS also clear from as on the date 19 of her examination, rice coupons were not issued. Therefore, it is clear from the aforesaid discussion that the alleged official favour i.e. issuance of rice coupons, was not pending with the accused officer as on the date of the incident. 23. P.W.3, who worked as Senior Assistant in the office of the MPDO Guntur, deposed that he used to maintain flies pertaining to construction works in the Mandal, and he put up note pertaining to the work of construction of building of Mahila Mandali, Dasupalem and prepared notes with regard to the construction. Ex.P6 is the file. 24. P.Ws.8 and 6 are wife and husband. They were declared hostile by the prosecution with the permission of the Court, as they resiled from their earlier version. P.W.6 deposed that his wife P.W.8 had vacant site in her name by the side of their house and they gave the said site for construction of panchayat office. He deposed in cross-examination that P.W.7 had to pay him Rs.2,500/- towards site costs and he informed P.W.7 to give Rs.2,500/- to the accused officer, from whom he would collect. P.W.8 deposed that she had a vacant site in her name in Dasupalem village adjacent to their house, but she does not 20 know whether any transaction took place in respect of the said site either by herself or her husband, and he did anybody about the amount i site. not enquire respect of the transaction of her in 25. P.W.3 worked as Inspector (District), ACB, Vijayawada Range, Guntur. He deposed that on 2.5.2003 at about 12.00 came to his office and presented Ex.P7 noon, P.W.7 -report dated 2.5.2003, and immediately, he informed about the same to P.W.9-D.S.P., and on the instructions of the caused discreet instructions. D.S.P., he He also deposed that he assisted P.W.9 in pre-trap proceedings Ex.PS and post trap proceedings He got Section 164 CrPC statement of P.W.7 Ex.P9. recorded, and during the course of further investigation, he examined witnesses, recorded their statements and seized Ex. He deposed that after completion of investigation draft final report to the D.G., ACB and sanction order Ex.PlO, his in the case. P2 to Ex.P4. he submitted on receipt of prosecution successor-in-office filed charge sheet 26. P.W.9 worked as D.S.P., ACB, Vijayawada at the relevant point of time of the incident. He deposed that P.W.3-lnspector 21 of ACB informed him about receipt of Ex.P7, and after making endorsement by P.W.3 on Ex.P7 about his discreet enquiries, he registered a case in crime No.2l/ACB-VJA/2003 for the offence under Section 7 of the Act, vide Ex. PI 9-FIR. His evidence further discloses about conducting pre-trap, arranging trap and conducting post-trap proceedings. 27. P.W.4 worked Senior Assistant, Public Health as Engineering Special Division, Guntur. He acted as a mediator for pre-trap and post-trap proceedings. 28. In the case on hand, to prove the alleged demand by accused officer, the prosecution examined the material witness P.W.7. He did not support the prosecution version as regards the demand and acceptance by the accused officer. A perusal of the evidence of P.W.7, it is clear that he resiled from his earlier version. He stated that he had to pay an amount of Rs.2,500/- to P.W.6 towards site of panchayat building, and he gave Rs.2,500/- to the accused officer on the date of the trap in order to hand over the same to P.W.6, and that the accused officer neither demanded nor accepted any bribe from him. Therefore, there is no evidence with regard to the alleged prior 22 demands made by the 19.4.2003, 30.4.2003 accused officers 15.4.2003, on or on 02.05.2003. So also, there is also regard to the further demand made by the trap or acceptance of the tainted amount as bribe amount by the accused officer, prosecution witness who P-W.7 is the material set the criminal law into motion. He gave a complete go-by to his earlier he was declared hostile with the permission of the cross-examination to offences alleged with the alleged illegal gratification deposed that when he asked version.Though examined by the prosecution and Cross- Court, nothing has been elicited i connect the accused officer in his with the regard to either demand or acceptance of by him. P.W.7 the accused officer that rice on, by P.W.7 and it would be The evidence of P.W. 1, categorically to issue rice coupons, the accused officer told the work carried when it was released. was not released to supplied as and M.P.D.O., who deposed that the rice component for Rs.40,000/- towards rice Since the allotment and that coupons was not issued to P.W.7 si was not done by the District Collector, examination, rice said evidence of P.W.7. on the date of his as coupons were not issued, lends This shows that ri support to the nee coupons were not \ 23 issued because there was no allotment of rice from the District Therefore, for the rice, which were not allotted by the District Collector, the question of issuing rice coupons does not arise. The evidence of other witnesses does not incriminate an3d:hing as against the accused officer as regards the alleged demand for doing official favour and acceptance of illegal gratification other than legal remuneration by the accused officer. /■i Collector. r 29. Further more, as discussed supra, from a perusal of the evidence of P.W.l, coupled with Ex.Dl-guidelines, it is clear that the accused officer has no obligation to issue rice coupons to P.W.7, and it is the Panchayat Secretary, who is obligated to Further, it is evident from the evidence of P.W.l that rice coupons were not issued since the allotment was not done by the District Collector, and that as on the date of her examination, rice coupons were not issued, there is no official favour pending with the accused officer the date of the incident. issue rice coupons. Therefore as on 30. To attract the aforesaid offences, it is essential that there a demand and acceptance of the bribe by the Accused Officer. There is no accompanying witness to show that should be 24 there is a demand by the circumstance available is the accused officer. The only other recovery of the tainted possession of the accused officer. currency notes from the It is settled that mere possession and the accused without offence under Section 7 recovery of the currency notes from proof of demand will not bring home the As seen from the prosecution witness P.W.7, on the date 500/- to the accused officer in of the P.C. Act, 1988. evidence of the material of the incident, he paid Rs.2, order to hand over the same to P.W.6, as he had to - site of panchayat building. P.W.7 amount as bribe by the IS no evidence to prove the demand currency, by the accused officer, money from the accused pay Rs.2,500/- to P.W.6 towards si did not speak about acceptance of the accused officer. There i or acceptance of the tainted Further, even if officer is accepted, sufficient to show that the recovery of tainted mere recovery of money by itself may not be as an illegal from P.W.7 for doing prosecution failed to prove the demand, and that the money was received gratification by the accused offieer official favour. The in the absence of evidence to show illegal gratification. an money was paid as mere recovery of money, is not sufficient to 25 convict the accused officer of the offences punishable under Sections 7 or 13(2) read with 13(l)(d) of the Act, 1988. 31. In P. Satyanamyana Murthy v. District Inspector of Police and Anr.f the HonTDle Apex Court held that, mere possession and recovery of currency notes from an accused officer 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. 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(l)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereo,f 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. ^(2015) 10 see 152 26 /Is a corollary, failure of the prosecution illegal gratiifcation would be fatal to prove the demand f and mere or recovery of the under Sections 7 conviction thereunder." amount from the person accused of the offence or 13 of the Act would not entail his The said principle was reiterated by the HonTale Apex Court in Mukhtiar Singh (since deceased) Representative v. State of Punjab3, as under:- through his Legal "23. The proof of demand of illegal gratiifcation, thus, is the gravamen of the offence under Sections 7 and 13(l)(d)(i) and (ii) of the Act and in absence thereof unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification of demand, ipso facto, would thus not he sufficient to bring home the charge under these two recovery thereof de hors the proof or sections of the Act. As a corollary. failure of the prosecution gratification would be fatal and to prove the demand for illegal 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. 32. In C.M. Sharma State of Andhra Pradesh etc., ^ the HonlDle Apex Court held as under: In support of the submission reliance has been placed decision of this Court in the case of Panalal Damodar Rathi v. State of Maharashtra (1987) Suppl. SCC 266 and has been drawn to on a our attention the following paragraph of the judgment: ^ (2017) 8 Supreme Court Cases 136 Yaws (sc) 2010 ii 84 27 “26. Therefore, the very foundation of the prosecution 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 of payment of the bribe to and recovery of the same from the accused with suspicion. ” case IS In Suraj Mai v. State (Delhi Admn.), (1979) 4 SCO 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 : 16. Indisputably, the demand of illegal gratification 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 satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. ” 28 33. In State ofPunjab Supreme Court held accused is not evidence with illegal '^‘^dan Mohan Lai that, sufficient to fasten regard to demand Vermas, the Honhle mere receipt of the guilt, in the absence acceptance of the amount by the of any and amount as gratification’. paragraph No. 7 of the h is appropriate said judgment, which to iincorporate reads thus; The law on the issue iIS well settled that demand of illegal under the sufficient to S’-^^tifoationissinequanonfor constituting an offence 1988 Act. Mere recovery of tainted money is not substantive evidence i convict the accused when reliable, unless there i m the case is not IS evidence to ' payment of bribe voluntarily show that the or to money was taken a bribe. Mere sufficient to fasten oJith regard to demand as receipt of the guilt, in the absence amount by the of any evidence accused is not acceptance of the burden and amount as illegal accused to under Section 20 either direct gratification. Hence, displace the the rests on the presumption raised bringing establish with statutory ^ct, by circumstantial, to of the 1988 on record evidence. or reasonable probability, that the rnoney was accepted by him, other than in Section 7 of the of Section 20 of the explanation offered touchstone of preponderance touchstone of proof beyond before the as a motive 1988 Act. While i Act, the or reward as referred invoking the to provisions required to consider the accused. ,f any, only of probability and court is by the on the not on the However, amount in all reasonable doubt, upon to explain how the accused is called '2013(3) MU (CrI) 565 29 question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an 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 look for independent corroboration before convicting the accused person." 34. In B.Jayaraj State of Andhra Pradesh in Crl.A.No.696 of 2014 dated 28.03.2014, the Honhle Apex Court held at paragraphs 8 and 9 thus: “8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himsel.f Mere possession and recovery of the currency notes from the accused 30 Without proof of demand will not bring home the offence under \ will be conclusive insofar as the ^ Section 7. The above also offence under Sections 13(ll(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratiifcation, the of corrupt or illegal means use os a public pecuniary advantage abuse of position or servant to obtain any valuable thing cannot be held to be established. or 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such be in presumption can only respect of the offence under Section 7 and not the offences Act. In any event, it is under Sections 13(I)(d)ll) and (ii) of the only on proof of acceptance of illegal gratiifcation presumption can be drawn under Section that 20 of the Act that such gratiifcatio was received for doing or forbearing to do any official act Proof of acceptance of illegal gratification only if there is proof of demand, /is the same i n can follow lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 absent. ” IS can be drawn wholly are 35. From the judgments referred to above, it is clear that the Hon’ble Apex Court has a charge under Sections 7 categorically held that, in order to prove and 13 of the Act, 1988, the prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. The Hon hie that till that i Apex Court held IS accomplished, the accused officer should be - innocent. The proof of demand of illegal considered to be i 31 M gratification, thus, is the gravamen of offence under Sections 7 and 13(l)(d)(i) and (ii) of 1998 Act and in the absence thereof. unmistakably the charge, therefore, would fail. The HonT)le Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors proof of demand, ipso facto, would thus not be sufficient to bring home the charge under aforesaid two sections. 36. In view of the aforesaid facts and settled proposition of law, it is unsafe to place an implicit reliance on the evidence adduced by the prosecution for convicting the accused officer. There is no legal evidence to find the accused officer guilty of the charges under Sections 7 and 13 (2) read with 13 (1) (d) of the Act, 1988 leveled against him. 37. In the decision relied on by the learned Special Public Prosecutor in Neeraj Dutta v. State (Government of NCT of Delhi){l supra) also, the HonT)le Apex Court categorically held that proof of demand and acceptance of illegal gratification by a public servant, as a fact in issue by the prosecution, is a sine qua non in order to establish the guilt of the accused public servant for the offences under Sections 7 and 13 (1) (d) (i) and 32 (“) of the Act. It iIS also held hy the to first Hon-ble Apex Court that the of hlegal gratificatio prosecution has prove the demand and the n subsequent on hand, there i acceptance as a matter of fact. In the case ^s no direct or circumstantial evidence to establish the demand of ilfega] There is no gratification by the accompanying witness accused officer. along with P.w. 7. Even if the cicircumstances deposed hy the other prosecution establish beyond bribe from witnesses are accepted as true, they cannot accused officer demanded reasonable doubt that the P-W.7 for iissuance of rice evidence of P.w. was the coupons. In fact, i and the as stated from the supra, in Ex.Dl, it is Panchayat Secret guidelines i clear that it responsibility of the coupons and under ary to issue rice no circumstances, the contractor (P.W.7). coupons shall be iissued to the There was no obligation either Mandal Assistant on the accused officer-who was working as Engineer or on Panchayat Secretary, to issue Therefore, it is evidence that rice coupons to P.W.7 there -contractor. was no official favour pending with the accused officer. 38. In view of the foregoing discussis>on, this Court hesitation no to hold that the prosecution failed accused officer for the to establish its case against the offences under Sections 33 7 and 13 (2) read with 13 (1) (d) of the Act, 1988, beyond reasonable doubt, either by direct or by circumstantial evidence, and the accused officer is entitled to acquittal. The trial Court did not consider these aspects in right perspective in passing the impugned judgment. 39. In the result, the Criminal Appeal is allowed, setting aside conviction the and sentence recorded against the appellant/accused officer in the judgment dated 23.08.2007 in the file of the Special Judge for S.P.E & The appellant/accused officer is found not guilty of the offences punishable under C.C.No.13 of 2004 on A.C.B. Cases, Vijayawada. Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention Act, 1988 and is of Corruption accordingly acquitted of the said offences. Fine amounts, if shall be refunded to him. any, paid by the appellant/accused officer Consequently, miscellaneous this Criminal Appeal shall stand closed. petitions, if any, pending in Sd/- S.V.S.R. MURHTY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Special Judge for SPE & ACB Cases, Vijayawada, Krishna District (with records) 2. The Station House Officer, A.C.B., Vijayawada Range, Guntur. 3. One CC to Sri Harinadh Nidamanuri Advocate [OPUC] 4. Two CCs to the Special Public prosecutor - cum- Standing Counsel for ACB, High Court of Andhra Pradesh at Amaravathi [OUT] 5. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi 6. Two CD Copies mm • • / i / / r f stu RAM j f' HIGH COURT SRK, J DATED;08/04/2025 JUDGMENT CRLA.No.1164 of 2007 X 25JUN20?5 m Co & Current Section ^ ALLOWING THE CRIMINAL APPEAL