APHC010536982007 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] TUESDAY, THE TWENTY NINETH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 1400/2007 Between: V. Sambasiva Rao ...APPELLANT A N D The State of AP ...RESPONDENT Counsel for the Appellant: 1. P RAJKUMAR Counsel for the Respondent: 1. S.SYAM SUNDER RAO SC cum Spl P.P. For ACB The Court made the following: SRK, J Crl.Appeal No.1400 of 2007 2 J U D G M E N T Sole Accused Officer (hereinafter referred to, as ‘the AO’) in Calendar Case No.36 of 2001 on the file of the learned Special Judge for ACB Cases-cum-III Additional District Judge, Visakhapatnam (for short ‘the learned Special Judge’), filed this appeal challenging the Judgment dated 24.09.2007, whereunder and whereby the AO was acquitted of the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short ‘the PC Act, 1988’) in terms of Section 248 (1) of the Code of the Criminal Procedure, 1973 (for brevity ‘CrPC’). However, the learned Special Judge convicted the AO of the offence punishable under Section 13 (1) (d) read with 13 (2) of the PC Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs.1,000/-, in default of payment of fine amount, to suffer simple imprisonment for a period of two (02) months. It is further ordered that MO5 i.e. tainted cash of Rs.500/- is payable and returned to P.W1 and M.Os.1 to 4, 6 to 8 shall be destroyed after appeal time is over. 2. The sum and substance of the charges against the accused officer is that he, being a public servant, employed as SRK, J Crl.Appeal No.1400 of 2007 3 Mandal Revenue Inspector, Kakinada (Urban) Mandal, East Godavari District, accepted or obtained a sum of Rs.500/-, for his pecuniary advantage, from P.W1 as gratification other than legal remuneration as a motive or reward for showing official favour in sending his file regarding the entry of his daughter’s birth to the Revenue Divisional Officer’s Office, Kakinada and thereby abused his position as such public servant, thereby committed the offences punishable under Section 7 and Section 13 (1) (d) read with 13 (2) of the PC Act, 1988. 3. Brief facts of the prosecution case are that the accused officer worked as Mandal Revenue Inspector in the Office of the Mandal Revenue Officer, Kakinada (Urban) Mandal, East Godavari District from 23.06.2000 to 26.04.2001. (b) P.W1 is resident of Kakinada of East Godavari District, got married with L.W4/M.Kamala Kumari, in the year 1994; that on 23.10.1998, L.W4/M.Kamala Kumari gave birth to a baby at her house and the said birth was not recorded in the Municipal Office records and in regard to the same, on 07.02.2000, P.W1 went to the Revenue Divisional Office, Kakinada, took a challan for a sum of Rs.50/-, submitted the same the same; that after two days, he SRK, J Crl.Appeal No.1400 of 2007 4 inquired at the Office and learnt that his application was sent to the Mandal Revenue Office (Urban), Kakinada and on his further inquiry, he learnt that the file was sent to L.W3/P.Narasimha Murthy, Mandal Revenue Inspector, Kakinada; that on inquiry, L.W3/P.Narasimha Murthy informed to P.W1 that he received the file and instructed him to produce the witnesses to the effect that his wife gave birth to a baby at his house; that on producing the witnesses, L.W3/P.Narasimha Murthy examined them and prepared a report; that later P.W1 could not visit the MRO Office due to pressure of work. (c) That as birth certificate is necessary to join P.W1’s daughter in the school during January, 2001, P.W1 went to the MRO Office and learnt that L.W3/P.Narasimha Murthy got transferred and the accused officer came in his place; that P.W1 met the AO and asked him regarding his file and requested to send the report to the Revenue Divisional Officer. (d) That the accused officer took the file of P.W1, and after perusing the same, instructed P.W1 to come after ten days; that the accused officer made P.W1 to visit the MRO Office for three or four times, but the report was not sent to the Revenue Divisional Officer; SRK, J Crl.Appeal No.1400 of 2007 5 that on 23.04.2001 at about 11.30 a.m. P.W1 met the AO at his office and requested him to send his file to the RDO Office, for which, the accused officer demanded P.W1 to pay an amount of Rs.500/- as bribe to him to send the file to RDO Office; that when P.W1 requested the AO to reduce the bribe amount, the AO informed P.W1 that he would be busy till 25.04.2001 and instructed him to come on 26.04.2001 at morning to his office and pay the amount of Rs.500/- as bribe and then only he would send the file to the RDO Office; that the AO had further stated that if the bribe amount is not paid, the file would be kept pending for another year. Having no other option, P.W1 agreed to pay the bribe amount of Rs.500/- to the AO. (e) Unwilling to pay the said sum, P.W1 approached P.W6, Range Inspector-I, ACB, Rajahmundry and submitted Ex.P6- Report, dated 25.04.2001. Basing on the strength of report, P.W4, DSP, ACB, Visakhapatnam, In-charge DSP, ACB, Rajahmundry registered a case in Crime No.3/Rc-RJY/2001 on 26.04.2001 at 8.30 a.m under Ex.P16-FIR. P.W4 conducted Pre-trap proceedings in the presence of mediators, viz. L.W11/K.S.Ragharava Rao, Assistant Executive Engineer, (R&B) N.N.Section, Kakinada and SRK, J Crl.Appeal No.1400 of 2007 6 L.W12/Mehar Prasad, Senior Assistant, District Treasury Office, Kakinada under Ex.P8-Pre-trap Proceedings, dated 26.04.2001. (f) On 26.04.2001 at about 5.45 p.m. the accused officer was trapped at his office, when he demanded and accepted the bribe amount of Rs.500/- from P.W1, as illegal gratification other than the legal remuneration to show official favour i.e. for sending the birth proposal of P.W1 to the Revenue Divisional Office, Kakinada. The tainted amount of Rs.500/- was recovered from the left side shirt pocket of the accused officer and Chemical test conducted on right hand fingers and left side shirt pocket of the accused officer proved positive. After completion of investigation and on receipt of prosecution sanction proceedings dated 21.09.2001, charge sheet was filed against the accused officer for the aforesaid offences. 4. On appearance of the accused officer, copies of case documents were furnished to him as required under Section 207 CrPC and, thereafter, charges under Sections 7 and 13 (1) (d) read with 13 (2) of the PC Act, 1988 were framed against the accused officer and the contents of the said charges were read over and SRK, J Crl.Appeal No.1400 of 2007 7 explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined PWs.1 to 7 and got marked Exs.P1 to P17 and MOs 1 to 8. 6. After closure of the prosecution evidence, the accused officer was examined under Section 313 CrPC, explaining the incriminating material found against him in the evidence of prosecution witnesses, for which he denied. 7. The accused officer filed written statement. He also got examined D.W1 and got marked Ex.D1 on his behalf. 8. In the written statement, the accused officer stated that he never demanded or accepted bribe amount from P.W1; that he was attending protocol duties apart from his regular duties at Kakinada; that on 26.04.2001 the accused officer went out from the office to attend protocol duties and returned to the office at about 5.00 or 5.15 p.m; that at about 5.40 p.m. while the accused officer was attending the work in the office, P.W1 came and inquired about the Birth Certificate of his daughter, thereupon, the accused officer informed that he prepared the report and was intending to send the same to the Mandal Revenue Officer for further action and at that SRK, J Crl.Appeal No.1400 of 2007 8 D.W1 was present in the office; that P.W1 offered some amount to him, but he refused to receive, immediately, P.W1 thrusted the amount in his shirt pocket and while thrusting the amount, the accused officer caught hold of his shirt with right hand by way of refusal; that P.W1 hurriedly went outside the office room in spite of his call and within no time, the trap party entered into the office room and raided him; that the accused officer informed to the ACB officials that P.W1 forcibly thrusted the amount in his shirt pocket in spite of his refusal. The accused officer further stated in his written explanation that he joined in the MRO Office of Kakinada on 23.06.2000 and the application filed by P.W1 was on 07.02.2000 i.e. prior to his joining; that the accused officer was busy in attending the VIP Protocol duties apart from his regular duties and the same was informed to P.W1, when the accused officer met him for the first time in the month of February, 2001, and assured him that he would complete his work; that in the month of March, 2001 he informed to P.W1 that the file was missing in the office and asked him to file fresh application; that in the month of April, 2001, the file was traced and statements of the wife of P.W1 and other witnesses were prepared on 20.04.2001 and on the same day, he prepared the report and submitted to the Mandal Revenue Officer, SRK, J Crl.Appeal No.1400 of 2007 9 Kakinada; that there was association rivalry and in order to wreck vengeance, the rival group leader viz. Mr. Tilak, NGOs leader instigated P.W1 to file report against the accused officer. 9. The learned Special Judge, on appreciation of entire oral and documentary evidence on record, found the accused officer not guilty of the charge under Section 7 of the PC Act, 1988 and, accordingly, acquitted him of the said charge, in terms of Section 248 (1) CrPC. However, the learned Special Judge found the accused officer guilty of the charge under Section 13 (1) (d) read with 13 (2) of PC Act, 1988 and convicted him of the said charge and sentenced him as aforesaid. Against the said conviction and sentence, the present Criminal Appeal has been preferred by the accused officer. 10. Learned counsel for the appellant submits that the entire prosecution case rests on the solitary testimony of P.W1. According to the learned counsel, P.W1 did not support the prosecution case and he was treated hostile by the prosecution. He further emphasized that in order to prove the aforesaid offences, it is essential that there should be demand of bribe by the accused officer and acceptance by him. In the present case on hand, there SRK, J Crl.Appeal No.1400 of 2007 10 is absolutely no legal evidence to prove the demand made by the accused officer. Learned counsel further submitted that the learned Special Judge opined that the demand was not proved by the prosecution, but convicted the accused officer for obtaining of tainted amount from P.W1, which is grave irregularity. The learned counsel further submits that mere recovery of tainted currency, by itself, is not a ground to find the accused guilty of the said charge, unless the same is followed by demand. The learned Special Judge without considering the said aspects in a right perspective, erred in convicting the accused officer, hence the conviction and sentence recorded against the accused officer are liable to be set aside. In support of his contention, he relied on the decision reported in M.R.Purushotham v. State of Karnataka1. 11. On the other hand, learned Special Public Prosecutor, appearing on behalf of the respondent/State, submits that merely because a witness was treated hostile, his entire evidence will not efface from the record. He further submitted that the evidence of P.W1, coupled with seizure of the tainted amount from the accused officer and result of the chemical test i.e. in Sodium Carbonate solution test, the right hand fingers and shirt pocket of the accused 1 2015 (3) SCC 247. SRK, J Crl.Appeal No.1400 of 2007 11 officer turned into pink colour, can be basis for convicting the appellant/accused officer. According to him, the said evidence is sufficient enough to convict the accused officer in the present case and the learned Special Judge has rightly convicted the accused officer, which calls for no interference by this Court. 12. Heard. Perused the record. 13. Now the point for determination is whether the prosecution proved its case against the appellant/accused officer for the offence under Section 13 (1) (d) read with 13 (2) of the PC Act, 1988 beyond reasonable doubt, and whether the judgment of the trial Court needs interference of this Court? 14. A perusal of the evidence on record goes to show that the entire prosecution case rests on the solitary testimony of P.W1. P.W1 deposed that on 23.10.1998 his wife gave birth to a female baby at his house and birth of his baby was not recorded in the Municipal Office records; that on 07.02.2000 he submitted Ex.P1- application to the RDO, Kakinada; that his application was forwarded to the MRO Office, Kakinada to make enquiries and it was further forwarded to the MRI to conduct enquiry; that he met L.W3/Narasimha Murthy, MRI for several times within a gap of SRK, J Crl.Appeal No.1400 of 2007 12 about four to five days; that as he was busy with his mechanic works, he did not visit the MRO Office for some period; that in the month of February, 2001, he met the accused officer, who is successor of L.W3/Narasimha Murthy and he was directed to come to the office ten or fifteen days thereafter and the accused officer assured him that he would look into the matter; that after two or three times visit of P.W1, he met the accused officer and he was told that his application was not traced out in the office and as much time elapsed, P.W1 was instructed to make fresh application to the office of the RDO. 15. The evidence of P.W1 is further to the effect that he met the accused officer in the month of April, 2001 and the accused officer recorded the statement of P.W1’s wife, obtained the signatures of our witnesses viz. L.W6/Md. Saleem, L.W7/ P.Trimurtulu, L.W5/K.Satyanarayana and L.W8/ L.Satyanarayana under the cover of Ex.P5-Mediators Report; that four days after 03.04.2001 when he went to the office of the MRO, the accused officer was not available in the office and when he enquired about him, the staff members told him that the work would be done on payment of money. It is the further evidence of P.W1 that he met the accused officer and expressed that he would make some SRK, J Crl.Appeal No.1400 of 2007 13 payment to obtain the date of birth certificate, but the accused officer kept silent and replied that he would attend the work and there was no hurry; that the applicants like P.W1 visiting the MRO Office told him that he has to pay Rs.500/- as bribe to obtain the birth certificate of his daughter; that as he was not willing to pay the amount, he went to the ACB Office, Kakinada, but he does not remember the date on which day he went to the said office; that he gave Ex.P6-report to the ACB Officials. It is the specific evidence of P.W1 that he was instructed not to touch the tainted amount of Rs.500/- kept in his shirt pocket until and unless there is further demand by the accused officer and in case, the accused officer accepts the money, he was instructed to come out and give prearranged signal; that the accused officer came to the office at 5.00 p.m; that when P.W1 went inside the office, he found that the accused officer was present in the office and P.W1 was offered a chair to sit and he was informed that his work was over and assured that he would send the certificate; that P.W1 offered Rs.500/- to the accused officer, but the accused officer refused to receive the same saying that he was a mechanic and went round the office for several times for the said purpose, but P.W1 kept the tainted amount of SRK, J Crl.Appeal No.1400 of 2007 14 Rs.500/- in the accused officer’s shirt pocket forcibly and came outside the office and gave prearranged signal. With the permission of the Court, P.W1 was treated hostile. Though P.W1 was cross-examined at length by the learned Special Public Prosecutor, nothing incriminating has been elicited from the evidence of P.W1 to connect the accused officer with the offences with which he was charged. 16. A perusal of the prosecution evidence goes to show that it is P.W6, Range Inspector-I, ACB, Rajahmundry, who followed P.W1 in close proximity. As per the evidence of P.W2, who worked as Senior Assistant, District Treasury Office, Kakinada and acted as a mediator in the present case, P.W1 and P.W6 went into the office of the MRO and he along with P.Ws.3 to 5 took vantage position. As can be seen from the evidence of P.W6, Range Inspector-I, ACB, Rajahmundry, he deposed in his cross-examination that he was the first person to receive signal from P.W1. The said statement of P.W6 would disclose that he did not accompany P.W1 when he went inside the office room of the accused officer, therefore, there is no scope to P.W6 to know as to whether the accused officer demanded the bribe amount on the date of trap. P.W6 did not SRK, J Crl.Appeal No.1400 of 2007 15 witness the accused officer demanding the bribe amount and accepting the same from P.W1. As per the evidence of P.W6, Exs.P4 and P5, statement of the wife of P.W1 and Mediators Report obtaining the signatures of the known persons to P.W1, was prepared by the accused officer and he came to know the said fact during the course of investigation and after seizure of Ex.P13-Made up file. P.W6 further deposed in his cross-examination that the accused officer prepared Exs.P4 and P5 in the month of April, 2001. 17. A perusal of the evidence of P.W1 coupled with the evidence of P.W6, discloses that by the date of trap i.e. on 26.04.2001, the accused officer made the file of P.W1, ready and was intending to submit the same to the RDO Office, Kakinada. The evidence of P.W6, Investigating Officer also discloses that he came to know that the accused officer recorded the statement of the wife of P.W1 under Ex.P4 and also obtained the signatures of the persons known to P.W1 under the cover of Ex.P5-Mediators Report. 18. Learned counsel for the appellant strenuously contended that when once the de facto complainant, who was examined as P.W1, did not support the prosecution case and when he was treated hostile by the prosecution, the entire prosecution SRK, J Crl.Appeal No.1400 of 2007 16 case has to be thrown out. He further contended that P.W6, who is said to have accompanied P.W1 according to the prosecution case, and P.W2, who acted as a mediator at the time of trap, did not state anything with regard to demand of bribe amount by the accused officer. 19. In order to attract an offence under Section 7 of the PC Act, 1988, the necessary ingredients to be established are, that the accused officer is a public servant and he accepted or obtained gratification other than legal remuneration and the gratification was to do an official favour. Under Section 13 (1) (d) of the PC Act, 1988, if 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 or pecuniary advantage, he is guilty of the criminal misconduct punishable under Section 13 (2) of the PC Act, 1988. 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 (1) (d) of the PC Act, 1988. In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and subsequent acceptance as a matter of fact. SRK, J Crl.Appeal No.1400 of 2007 17 20. In the case on hand, there is no evidence on record to show that the accused officer made a demand of bribe amount from P.W1 on the fateful day. Neither P.W1, who is the informant, nor P.W6, who is said to be accompanying witness, states that at the time of the trap, any demand was made by the accused officer. It is an admitted fact that much prior to the trap, the accused officer got prepared the file of P.W1 through D.W1, who worked as Village Servant of Balabadrapuram. Even as per the evidence of P.W1, when he expressed that he would pay some amount for getting the work done, the accused officer remained silent and assured him that would attend to the work and there was no hurry. None of the evidence of prosecution witnesses proves that the earlier demand made by the accused officer and on the date of trap also, the accused officer demanded the bribe amount. The learned Special Judge, acquitted the appellant/accused officer of the offence under Section 7 of the PC Act, 1988, in view of the fact that demand of bribe by the accused officer has not been established. 21. In Mir Mustafa Ali Hasmi’s case (supra), the Hon’ble Supreme Court held as follows: SRK, J Crl.Appeal No.1400 of 2007 18 “51. The complainant(PW-1) alleged that after he lodged the complaint(Exhibit P-1) to the DySP(PW-10) on 22nd January, 2003, he was called by the appellant(AO1) and AO2 and was directed to come to the Hotel Quality-Inn with the proposed bribe amount of Rs.5,000/-. Acting on his own wisdom, the complainant(PW-1) asked his friend PW-2 to accompany him to the ACB office. The complainant(PW-1) further alleged that when he and Ramesh Naidu(PW-2) were about to proceed to ACB office, he received another phone call from the appellant(AO1) and AO2 in the morning of 23rd January, 2003 and who instructed him to reach Hotel Quality-Inn. This fact, however, does not find place in the complaint(Exhibit P-1) and is thus a very significant omission. When the pre-trap panchnama(Exhibit P-4) was drawn, the complainant(PW-1) modified his version and alleged that it was AO2, who telephoned him in the morning and asked him to come to the Hotel Quality-Inn with the bribe amount. This apparent modulation by the complainant(PW-1) regarding the accused who had made the demand again throws a doubt on his conduct and credibility. The call detail records proved by PW-6 again decimates the version of the complainant(PW-1) because they clearly established that no call was made from the mobile number of the appellant(AO1) to the mobile number of the complainant(PW-1) after 17th January, 2003. As against the noting in the pre-trap panchnama(Exhibit P-4), the complainant(PW-1), during his sworn testimony, deposed that the phone call was made on 21st March, 2003 by both the appellant(AO1) and AO2. The complainant (PW- 1) also alleged that after the pre-trap proceedings, the DySP (PW- SRK, J Crl.Appeal No.1400 of 2007 19 10) called Ramesh Naidu(PW-2) and instructed him to act as a shadow witness. However, the fact remains that Ramesh Naidu(PW-2) had already been asked by the complainant(PW-1) to accompany him in the trap proceedings. The complainant(PW-1) further alleged that a little while after he and Ramesh Naidu(PW- 2) had occupied one table in the said coffee shop, the mediators and Inspector N. Chandrasekhar(PW-11) also came to the coffee shop and occupied a nearby table. The appellant (AO1) entered the coffee shop after some time and took the chair opposite to the ones wherein the complainant(PW-1) and the shadow witness were sitting. The appellant (AO1) asked the complainant(PW-1) whether he had brought the bribe amount of Rs.5,000/- to which the complainant(PW-1) replied in affirmative. When the complainant (PW-1) was about to handover the tainted currency notes, the appellant(AO1) hesitated and said that the amount should not be given in the coffee shop. The complainant(PW-1) was directed by the appellant(AO1) to proceed to the cellar of the hotel and accordingly, both he and PW-2 proceeded to the cellar and reached the generator room. There, the appellant (AO1) opened the zip of his rexine bag and instructed the complainant(PW-1) to place the bribe money inside the same. The complainant (PW-1) complied and placed the tainted currency notes in the rexine bag of the appellant(AO1). The appellant (AO1) then handed him the papers which were prepared during the inspection of the saw-mill by the Flying Squad. This version of the complaint was corroborated only by Ramesh Naidu (PW-2). However, the version of the complainant (PW-1) and PW-2 that the SRK, J Crl.Appeal No.1400 of 2007 20 appellant (AO1) while sitting inside the coffee shop, initially demanded the bribe and then refused to accept the same does not find corroboration from the evidence of K. Srinivas Rao (PW-3) and the Inspector (PW-11). If at all, the complainant (PW-1) and the appellant (AO1) were sitting on the table adjoining the one on which the panch witnesses and the Inspector, N. Chandrasekhar(PW-11) were sitting then, these persons would not have missed out hearing the appellant (AO1) demanding the bribe from the complainant (PW-1). In total diversion to the version of the complainant (PW-1) and PW-2, the panch witness (PW-3) and the Inspector (PW-11) did not utter a word in their testimonies, that they both went to the coffee shop and occupied a table adjacent to the table where the complainant (PW-1), PW-2 and the appellant (AO1) were sitting. This can be supported by post-trap panchnama (Exhibit P-11), which also doesn't elucidate on the fact that K. Sriniwas Rao (PW- 3) and Inspector (PW-11) heard the conversation of the complainant (PW-1) and the appellant (AO1). Thus, it can be presumed and put the Court on guard that the testimonies of PW- 3 and PW-11 and the post-trap panchnama (Exhibit P-11) distorted the facts. 52. Thus, there is a grave suspicion on the story as put forth by the prosecution that the accused, the appellant (AO1) demanded the bribe money from the complainant(PW-1) while in the coffee shop of Hotel Quality-Inn. 53. In view of the above analysis and elaboration of evidence, we have no hesitation in holding that the prosecution miserably failed to prove the factum of demand SRK, J Crl.Appeal No.1400 of 2007 21 of bribe against the appellant (AO1) by reliable direct or circumstantial evidence. The allegation regarding acceptance of bribe by the appellant (AO1) is primarily based on the evidence of the complainant (PW-1) and PW-2 and the DySP (PW-10). From the extracted portion of the deposition of the complainant (PW-1) supra, it is comprehensible that he admitted that the appellant (AO1), forgot his rexine bag in the coffee shop and that the complainant(PW-1) picked up the same and handed it over to the appellant(AO1). Thus, unquestionably, the complainant (PW-1) had the opportunity to plant the tainted currency notes into the bag being carried by the appellant (AO1). 54. As we have observed above that the entire case seems to have been planned at the behest of M. Ashok, it is clear that the complainant (PW-1) was simply used as a tool to get the appellant (AO1) trapped on made up allegations. The High Court while discussing the case, brushed aside the said part of the evidence of the complainant (PW-1) by observing that the same was an afterthought. However, the fact remains that these vital facts were elicited during the cross- examination of the complainant (PW- 1) and hence, the benefit thereof would have to be given to the appellant (AO1) more particularly as the prosecution did not make any effort to clarify this anomaly by way of re-examination. If at all, the prosecution felt that the captioned admission extracted above as appearing in the cross-examination of the complainant (PW-1) was a material deviation from the case set up by the prosecution, then, the public prosecutor was SRK, J Crl.Appeal No.1400 of 2007 22 under an obligation to re-examine the witness to remove the anomaly. Having failed to do so, the prosecution cannot be permitted to cry foul that the decoy complainant (PW-1) modulated his testimony in the cross-examination so as to favour the accused. It is admitted that the DySP (PW-10) and the other members of the trap party were standing outside the coffee shop and thus, they could not have seen the sequence of events wherein, the complainant (PW-1) picked up the bag of the AO1 (appellant). PW-2, of course denied this suggestion, but we cannot be oblivious to the fact that the star witness of the prosecution, namely, the complainant (PW-1) himself made a candid admission to the suggestion given by the defence in cross-examination, that he got unhindered access to the bag of the appellant (AO1) and that this fact remained contraversed by the prosecution. In addition to the above, this Court has to remain conscious of the fact that the prosecution made no effort whatsoever to get the wash taken from the hands of the appellant (AO1) and the rexine bag examined through the FSL. Hence, there is no satisfactory evidence on record to establish that the appellant (AO1) had actually handled the tainted currency notes as claimed by the complainant (PW-1).” 22. In a decision, relied on by the learned counsel for the appellant/accused officer, in M.R.Purushotham’s case (supra), the Hon’ble Apex Court held as follows: SRK, J Crl.Appeal No.1400 of 2007 23 “6. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 13 (1) (d) of the Act and the conviction and sentence imposed on the appellant are liable to be set aside.” 23. As stated supra, in the present case on hand, the informant– P.W1 did not support the prosecution case and he was treated hostile by the prosecution. In the cross-examination of P.W1, nothing incriminating has been elicited against the accused officer by the prosecution. As regard recovery of tainted currency notes from the possession of the accused officer, it is the version of the accused officer that P.W1 thrusted the tainted amount into this shirt pocket. In fact, P.W1 too deposed in his evidence that when he offered Rs.500/- to the accused officer, he refused to receive the same and as such, P.W1 kept the tainted amount of Rs.500/- in the accused officer’s shirt pocket forcibly. The spontaneous explanation offered by the accused officer is corroborated by the evidence of P.W1 that he thrusted money into the shirt pocket of the accused officer though he refused to receive the same. There is no iota of evidence that the accused officer demanded bribe amount. In fact, the application of P.W1, for getting birth certificate of her daughter, SRK, J Crl.Appeal No.1400 of 2007 24 was initially forwarded to L.W3/P.Narasimha Murthy, who is the predecessor of the accused officer i.e. in the month of February, 2000 and the accused officer, being the successor of L.W3/P.Narasimha Murthy, assumed the charge on 23.06.2000 and on knowing that the application of P.W1 was not traced, he advised P.W1 to submit a fresh application. 24. In P. Satyanarayana Murthy v. District Inspector of Police and Anr.,2 the Hon’ble 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(1)(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: 2 (2015) 10 SCC 152 SRK, J Crl.Appeal No.1400 of 2007 25 "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 thereof, unmistakably the charge therefore, 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 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 Punjab3, as under:- "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(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 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 3 (2017) 8 Supreme Court Cases 136 SRK, J Crl.Appeal No.1400 of 2007 26 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." 25. In C.M. Sharma v. State of Andhra Pradesh etc.,4 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 Panalal Damodar Rathi v. State of Maharashtra (1987) Suppl. 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 of payment of the bribe to and recovery of the same from the accused with suspicion.” 4 LAWS (SC) 2010 11 84 SRK, J Crl.Appeal No.1400 of 2007 27 In Suraj Mal 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 : “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.” 26. From the judgments referred to above, it is clear that the Hon’ble Apex Court has categorically held that, in order to prove a charge under Sections 7 and 13 of the Act, 1988, the SRK, J Crl.Appeal No.1400 of 2007 28 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, the accused officer should be considered to be innocent. The proof of demand of illegal gratification, thus, is the gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of 1998 Act 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, de hors proof of demand, ipso facto, would thus not be sufficient to bring home the charge under aforesaid two sections. 27. In State of Punjab v. Madan Mohan Lal Verma5, 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: "7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an 5 2013(3) MLJ (Crl) 565 SRK, J Crl.Appeal No.1400 of 2007 29 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 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." SRK, J Crl.Appeal No.1400 of 2007 30 28. 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 respondent/ accused officer. In the case on hand, the learned Special Judge found the accused officer not guilty of the offence under Section 7 of the PC Act, 1988, but erred in convicting him for the offence under Section 13 (2) read with 13 (1) (d) of the PC Act, 1988. 29. In view of the aforesaid facts and circumstances of the case and the principle laid down by the Hon’ble Apex Court in the above referred decisions, this Court has no hesitation to come to the conclusion that the prosecution failed to bring home the guilt of the accused officer of the alleged charge beyond reasonable doubt and the accused officer, therefore, deserves to be acquitted of the charges. 30. Accordingly, the Criminal Appeal is allowed and the conviction and sentence passed by the learned Special Judge for ACB Cases-cum-III Additional District and Sessions Judge, Visakhapatnam, in the Judgment in Calendar Case No.36 of 2001, dated 24.09.2007, are set aside. The appellant/accused officer is found not guilty of the charges leveled against him and accordingly SRK, J Crl.Appeal No.1400 of 2007 31 he is acquitted of the same, and he is set at liberty. The bail bonds, if any, shall stand discharged. Fine amount, if any, paid by the appellant shall be refunded to him. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed. _____________________________ JUSTICE K. SREENIVASA REDDY 29th April, 2025 DNB