IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 949 OF 2007 Appeal under Section 374(2) of Cr.P.C, against the Judgment in C.C.No.23/2002, dated 30.06.2007 on the file of the Court of the Spl. Judge for SPE & ACB Cases, Nellore. Between: B.Baladev Singh, S/o Ratna Singh, Mandal Engineering Officer O/o Mandal Parishad Development Officer Porumamilla Mandal, Kadapa District ...ACCUSED/APPELLANT AND The State through the Inspector of Police, Anti-Corruption Bureau, Kadapa District, Tirupati Range, rep. by its Spl. Public Prosecutor for ACB Cases, High Court of A.P., Amaravati. ...COMPLAINANT / RESPODENT : SRI L.SRINIVASU Counsel for the Appellant Counsel for the Respondent: SPECIAL PUBLIC PROSECUTOR CUM STANDING COUNSEL FOR ACB The Court made the following JUDGMENT : 1 APHCO10370902007 IN THE HIGH COURT OF ANDHRA PRADESHAT AMARAVATI (Special Original Jurisdiction) MONDAY ,THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL No.949 OF 2007 SMS [3327] Between: B.Baladev Singh ...APPELLANT AND The State OfA P Thru Inspector Of Police Acb Kadapa Counsel for the Apellant: l.SRINIVASU L Counsel for the Respodent: 1. PUBLIC PROSECUTOR The Court made the following: ...RESPONDENT JUDGMENT: Sole accused in C.C.No.23 of 2002 on the file of the Special Judge for S.P.E & A.C.B Cases, Nellore (for short ‘the Special Judge’), filed this Criminal Appeal challenging the judgment dated 30.06.2007 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 rigorous imprisonment for a period of six ... 2 months and to a fine of Rs.2,000/- i„ default to suffer a period of two months for pay simple imprisonment for punishable under Section 7 undergo rigorous imprisonment for the offence of the Act and further sentenced to a period of one year and to pay a fine of Rs.2,000/- in default imprisonment for two months for Section 13(2) read with to suffer simple the offence punishable under 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, restoration PW. 1 did work of Nagulacheruvu of T.Seshampalli village with an estimated under NABARD officer was working Mandal Parishad Kadapa district. cost of Rs. 1.60 lakhs grant in Neeru-Meeru Phase-111. The accused as Mandal Engineering Officer, Development Officer, On 01.05.2001,the office of the Porumilla accused officer work. On 03.05.2001, the of T.Seshampalli village P of Sarpanch K.Ramakrishna Reddy LW.lO-Smt.Rajamma, Habitation -resolution by nominating PW.l for the is the proceedings of the Sarpanch mandal. prepared Ex.p.20-estimate for the above level Neeru-Meeru Committee formed under the leadershi village was (LW.9) and other members. Officer passed Ex.P2 work.Ex.P.l i and others. On 3 03.05.2001, PW. 1 submitted Ex. P.3-application to PW.4- Executive Engineer, Panchayat Raj Division, Rajampet to accord work order, along with the recommendations of the accused officer and PW.3-the then Deputy Executive Engineer, Panchayat Raj Sub-Division, Porumamilla along with Exs.P. 1 and P.2. PW.4-Executive Engineer, Panchayat Raj Department, Rajampet issued Ex.P4-work order on 10.5.2001.InEx.P.4, PW.l was instructed to enter an agreement with PW.3 and complete the work before 31.08.2001. PW.l entered into Ex.P7- agreement with PW.3 on 11.05.2001. On 12.5.2001 and 13.5.2001, PW. Icleaned the light jungle growth including the cutting, uproasting the stumps etc., and cleaned the tank bund and the same was recorded in M.Book No.8253-A by the accused officer, under Ex.P.9-Xerox copy of the entries in page No.l of the M.Book. The pre-levels of Nagulacheruvu tank bund were noted in Ex.P. 16-Field Notebook of the accused officer, along with some other tanks. PW. 1 executed restoration work of Nagulacheruvu from 19.06.2001 to 29.06.2001 and did earthwork of 4590 Cubic Meters under the supervision of the accused officer. The accused officer informed the daily progress report of the above work to PW.3.PW.7-Draftsman, who was 4 present in the Office of PW.3, entered the (Ex.P.23 (A) is the relevant entry) and to the office of PW.4 at Rajampet and the intimating the According to the prosecution, the same in Ex.P.23-book was informing the said Office in turn same was same to the District Collector, Kadapa. entire work was completed by supervision of the accused the end ofJune, 2001 under the officer.Though PW. 1 requested the M.Book and accused officer to record in prepare the bills for the work executed by him, he did not take any action. PW.l met the accused officer once in 10 days with the request, but the latter demanded same Rs.5,000/- as bribe for recording M.Book and preparing the bill. P.W. 1 expressed his inability to pay the bribe. On 18.9.2001, PW.l met the accused officer in his office with the same request, but the latter reiterated his earlier demand, request of PW.l, he reduced the bribe and asked PW. 1 to and at amount to Rs.4,000/- pay the same at his residence on 21.09.2001. PW.l, unwilling to pay the bribe, approached PW.9-D.S.P., ACB, Tirupati Range, who was camping at Kadapa and gave Ex.P.5-statement. PW.9 conducted preliminary enquiry and registered a case on 21.09.2001 at 2.00 p.m., and submitted original FIR Ex.P.26 to Court. He laid trap in the 5 presence of mediators PW.2-Assistant Director of Sericulture, Kadapa and LW.3-S. Venkata Subbaiah, Assistant Inspector of Sericulture in the Office of PW.2. He conducted pre-trap proceedings under Ex.P.S-mediatornama and sent PW. 1 with currency notes tainted with Phenolphthalein powder to the room of accused officer. The accused officer demanded and accepted the bribe amount from PW. 1 on the date of the trap. Thereafter, PW.9 recovered the same from the accused officer under cover of Ex.P. 17-Mediatomama. Ex.P.16 was seized fromA.O. Thereafter, PW.IO- Inspector of Police, ACB, Kadapa took up further investigation, examined the witnesses, collected necessary documents and obtained sanction order-Ex.P.25 from the Government, and filed charge sheet after completion of investigation. 3. The case was taken on file for the offences under Sections 7 and 13 (2) r/w 13 (l)(d) of the Act against the accused officer. On appearance of the accused officer, copies of case documents were furnished to him 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, which he pleaded read over and explained to the not guilty and claimed accused officer, for to be tried. \ 4. 'To substantiate i to 10 and Exs.P. - Its case, the 1 to P.23, P.23 (A), During the slips and Ex.D.3- prosecution examined PWs.l and MOs.l examination of PW. 1 portion of Section IblCr. During the of PW.3, dated P-24 to P.27, to 8 were got marked. cross- Exs.D.1 and D.2 statement of PW. 1 P.C. ^ere got marked. cross- examination of PW.3 10.9.2001 Ex.D.4-Proceedi was got marked. 5. After closure of the officer prosecution evidence. the accused was examined under Section 313 Cr.P.C. by -criminating evidence against him. He denied the explaining evidence, was said to be the the then M.L.A. the i He examined DW.l-K.V Personal Assistant Badvel, and marked Subbareddy, who of Smt. Vijayamma, Ex.D.5 through D.W.l. of 0- The learned Special Judge on record, found the , after appreciating the evidence accused officer guilty of the offences punishable under Sections the Act, 7 and 13 (2) read 13 (1) (d) of accordingly convicted and sentenced him, as stated supra. Challenging the same, the present Criminal Appeal is preferred by the accused officer. 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. 7. The learned counsel for the appellant/accused officer contended that the material prosecution witness i.e.P.W.l, did not 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 bribe by the accused officer, as alleged by the prosecution, submits that according to evidence of P.W.l, on the fateful day, the accused officer by turning towards wall was removing his shirt, and then he went to back side of accused officer and kept the amount in back pocket of the pant of the accused officer. He submits that nothing has been elicited in his cross- examination by the Public Prosecutor to connect the accused officer with the offences alleged, and there is no legal evidence to prove either demand or acceptance of the bribe amount by the accused officer. He submits that the prosecution failed to 8. He 8 establish the official favour pending with the accused officer on the date of the trap. It is his further submission prosecution failed as that the to establish the alleged demand or acceptance of illegal gratification by the are necessary ingredients for the offences under accused officer, which Sections 7 and 13(l)(d) read with 13 (2) of the Act, 1988. He submits that the theoiy of recovery of tainted of the clinching evidence of P.W. 1. currency notes is not acceptable in He further submits view that even otherwise, mere recovery of tainted Itself, does not establish the offences currency notes, by alleged against the accused officer, and the Special Judge has aspects in right perspective and erred i sentencing the accused officer, appeal and set aside the the learned Special Judge. not considered these convicting and Hence, he prayed to allow the convictions and sentences passed by in 9. On the other hand, the learned Standing Counsel respondent/A.C.B. contended that there i regard to the fact that the accused officer for the no dispute with IS was a public servant He contended that merely prosecution witness P.W.l, under Section 2 (c) of the Act, 1988. because the material 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 right hand fingers of the accused officer and inner linings of back pocket of pant of accused officer, gave positive result; that seizure of tainted currency notes from the possession of the accused officer is established; that the evidence adduced by the prosecution clearly established the guilt of the accused officer for the offences alleged against him, and the learned Special Judge considered these aspects in right perspective, accordingly convicted and sentenced the accused officer of the offences with which he was charged, and hence, he prays to dismiss the Criminal Appeal. 10. Now the point for determination is whether the prosecution is able to bring home its case against the appellant/accused officer for the offences alleged beyond reasonable doubt, and whether the judgment of the trial Court needs interference of this Court ? 10 11. l^tcharge against the accused officer i public servant working the Mandal Parishad mandal, Kadapa district, that he, being Mandal Engineering Officer, office of IS a as Development Officer, Porumamilla accepted Rs.4,000/- from P.W.l on 21.9.2001 at about 12.00 noon at his room located at in pursuance of his previous as illegal gratification or bribe for Porumamilla of Kadapa district, i demand on 18.9.2001, recording the M-book and preparing bills of P.W.l with regard to execution of restoration work of Nagulacheruvu attended by an offence punishable under 2nd charge against the accused officer is him, and thereby he committed Section 7 of the Act. that on the same day, tim.e and during the course of same transaction, as mentioned in Dt charge, the accused officer, accepted illegal gratification of to obtaining a pecuniary being a public servant, Rs.4,000/- from P.W.l and it advantage by corrupt or illegal amounts and thereby he committed an offence of criminal misconduct punishable under means Section 13 (2) read with 13 (1) (d) of the Act. 12. In order to attract an offence under Section 7 of the Act, 1988, the necessary ingredients to be established accused officer is a public servant and that he are that the accepted or 11 obtained gratification other than legal remuneration and the gratification was to do an official favour. Under Section 13 (1) (d) of the 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 criminal misconduct punishable under Section 13 (2) of the Act, 1988. 13. The accused officer was working as Mandal Engineering Officer, office of the Mandal Parishad Development Officer, Porumamilla mandal, Kadapa district at the relevant point of time of the incident. There is no dispute that he was a public servant within the meaning of Section 2 (c) of the Act, 1988. 14. Coming to evidence, P.W. 1, who set the criminal law into motion, deposed in his evidence that he was elected as nominee under the Scheme ‘Neeru Meeru’ for restoration work of Nagulacheruvu which is at T.Seshampalli village, and the ayakatdars elected village committee under Neeru Meeru. Ex.PI is the proceedings issued by the Village Sarpanch M.P.D.O. and the Habitation Officer dated 3.5.2001 and Ex.P2 is the resolution of the Committee nominating P.W.l to do the 12 work. It is his further evidence that submitted Ex.P3 application Panchayatraj, Rajampet to permit him pursuant to Ex.P2, he the Executive Engineer, to do the work, and the \ same was recommended by the accused officer and Panchayatraj, Porumamilla thereafter the Executive also D.E.E., with their endorsements. Engineer, Panchayatraj, Rajampet It is his further per Ex.P4, he had to complete the work by and issued Ex.P4-work order dated 10.5.2001. evidence that as 31.8.2001, and except finishing work with completed the entire work under the a roller, he supervision of the accused officer. P.W.l further deposed that he officer to prepare the bill and requested the accused went around him for 10 times for that purpose, and the villagers told him that the accused officer was not preparing the bill as he did not give percentage and told me to give percentage, and thereafter, he went to the ACB, Kadapa and informed the same to the Inspector, ACB and the DSP, ACB, and they prepared his statement. Ex.P5 is his signature in the statement dated 20.9.2001. deposed that the DSP told him to He further come on the next day at 3.00 PM along with Rs.4,000/-, which he did so, and in the presence 13 of mediators, serial numbers of the currency notes were noted and the same were smeared with some powder and kept in his shirt pocket. It is his further evidence that the DSP and the Inspector told to give the amount to the accused officer demand made by the accused officer. He further deposed that at 5.00 PM, they started from there in two jeeps and went to Porumamilla and stopped the vehicles at a petrol bunk; that he went to residential room of the accused officer, but the latter was not there; that he waited there for one hour or one and half on hour; then the accused officer came there; that two minutes thereafter, when he went into the room, the accused officer, by turning towards wall, was removing his shirt; then he went to back side of the accused officer and kept the amount in the back pocket of the pant of the accused officer, came out of the room and informed the same to the ACB officials. 15. With the permission of the Court, P.W.l was declared hostile and he was cross-examined by the learned Special Even though P.W.l was cross-examined by the prosecution, except putting suggestions, which have been Public Prosecutor. denied by P.W.l, nothing incriminating against the accused officer has been elicited in the cross-examination of P.W.l to 14 connect him to the offences alleged, examination that he does not remember whether recitals as stated in Ex.PS. recital in the evidence of P.W.l either with both prior demand as well as demand He stated in cross- he stated the Therefore, there is no iota of regard to demand, on the date of the trap acceptance of the alleged bribe amount by the accused officer. , or 16. PW.2, who worked as Assistant Director, Seri Culture, Kadapa at the relevant point of time of the incident, acted mediator to the proceedings under Ex.P17. as a pre-trap proceedings Ex.PlS and post trap He deposed about conducting of proceedings as narrated in Exs.PlS and PI7. According to his evidence, he is not an accompanying witness. 17. PW-3 worked the Deputy Executive Engineer Panchayat Raj Sub-Division, Porumamilla; PW-4 worked as as the Executive Engineer, Panchayat Raj Department, Rajampet Assistant Engineer in the office of the Executive Engineer, Panchayat Raj, Rajampet, during relevant point of time of the incident. and PW-5 worked as the PW-6 worked as the Mandal Parishad Development Officer. Porumamilla during the relevant point of time of the incident. They deposed about their 15 ' {Vf roles in the allotment and execution of the work by P.W. 1 and payment of bills, etc. 18. P.W.8 worked as Section Officer, Panchayat Raj and Rural Development (VS-1) Department, A.P. Secretariat. He deposed about issuance of Ex.P25-sanction order to prosecute the accused officer by the then Special Chief Secretary to the Government. 19. P.W.9 worked as D.S.P., ACB, Tirupati at the relevant point of time of the incident. He deposed about recording statement of P.W. 1, registration of the subject crime under Ex.P26, conducting pre-trap and post-trap proceedings. P.W. 10 worked as Inspector of Police, ACB, Kadapa during the relevant point of time of the incident. He deposed about his assistance rendered to P.W.9 during trap proceedings, further investigation conducted by him in the subject crime and filing of charge sheet after completion of investigation and receipt of relevant documents. 20. In the case on hand, to prove the alleged demand by accused officer, the prosecution examined the material witness P.W.l. He did not support the prosecution version as regards 16 the demand and % acceptance by the accused officer. A perusal of the evidence of P.W 1 it is clear u , IS clear that he resiled from • He is the decoy witness, requested the accused officer his earlier version He deposed that he to prepare the bill for making payment to the work executed by him 10 times for that and went around him for purpose, and the villagers told him that the preparing the bill as he did not give accused officer was not percentage and told me to give percentage, and thereafter, he went to the ACB, Kadapa and informed the Inspector, ACB and the Statement, and Ex.PS i 20.9.2001. same to the DSP, ACB, and they prepared his - IS his signature in the statement dated He further deposed that on the date of the trap, room of the accused officer, the when he went into the officer, by turning towards wall, went accused removing his shirt; then he kept the amount in was to back side of the accused officer and the back pocket of the pant of the accused officer, came out of the room and informed the same to the ACB officials. He categorically stated that he does not remember the recitals of statement containing Ex.PS-signature, reasons, prosecution has declared him hostile. In view of the said P.W. 1 is the matenal prosecution witness who set the criminal law into 17 motion. He gave a complete go-by to his earlier version.Though he was declared hostile and cross-examined by the prosecution with the permission of the Court, nothing has been elicited in his cross-examination to connect the accused officer with the offences alleged with regard to either demand or acceptance of the alleged illegal gratification by him. There is no legal evidence to show that the incident had occurred as suggested by the prosecution.The evidence of other witnesses does not incriminate anything 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. 21. To attract the aforesaid offences, it is essential that there should be a demand and acceptance of the bribe by the Accused Officer. There is no accompanying witness to show that there is a demand by the accused officer. The only other circumstance available is the recovery of the tainted currency notes from the possession of the accused officer. It is settled that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 of the P.C. Act, 1988. As seen from the 18 evidence of the material of the incident, when he officer, the accused officer, removing his shirt, and he officer and kept the the accused officer. prosecution witness P.W.l, on the date went into the room of the accused by turning towards wall, went to back side of the was accused amount in the back pocket of the pant of P.W.l did not speak about bribe by the accused officer. acceptance of the amount as There is no evidence to prove the demand or acceptance of the tainted currency, by the accused officer. Further, even if recovery of money from the accused officer is accepted, tainted mere recovery of money by itself may not be sufficient to show that the money was received as illegal gratification by the accused officer from P.W.l for doing an official favour, prosecution failed to prove the demand, and in the absence of evidence to show that the an The money was paid as illegal gratification, mere recovery of money, is not sufficient to convict the accused officer of the offences punishable under or 13(2) read with 13(l)(d) of the Act, 1988. Sections 7 22. In P. Satyanarayana Murthy v. District Inspector of Police and Arm, 1 the HonT)le Apex Court held that. mere possession (2015) 10 see 152 19 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 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." 20 The said principle was reiterated by the HonlDle Singh (since V- State of Punjab2^ Apex Court in Mukhtiar deceased) through as under:- his Legal Representative '23. The proof of demand of illegal gratiifcation, thus, is the 7 and 13(l)(d)(i) and (ii) unmistakably the charge acceptance of any amount allegedly by recovery thereof de hors the gravamen of the offence under Sections of the Act and iin absence thereo.f therefor, would fail Mere roay of illegal gratiifcation of demand, ipso facto, would or proof thus not be sufficient to bring home two sections of the Act. the charge under these failure of the As a corollary, prove the demand for illegal and mere prosecution to gratiifcation would be fatal from the person of the Act would recovery of the amount accused of the offence under Sections 7 and 13 not entail his conviction thereunder. 23. In C.M. Sharma Hon Hole Apex Court held V. State of Andhra Pradesh etc., 5 the as under: In support of the submission reliance has been placed decision of this Court in the case of Panalal Damodar State of Maharashtra (1987) Suppl. SCC 266 and has been drawn to on a Rathi v. our attention the following paragraph of thejudgment: 26. Therefore, the shaken to any bribe and considered along with other very foundation of the prosecution case is to the handing over of accused should be one of which a great extent. The question as recovery of the same from the material circumstances ^ (2017) 8 Supreme Court Cases 'LAWS (SC) 2010 11 84 136 21 /■ is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand 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. ” 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. was 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. ” 22 24. In State of Punjab Supreme Court held that, V. Madan Mohan Lai Verma^, receipt of the amount by the the absence of any acceptance of the appropriate to i said judgment, which reads thus: the HonlDle mere accused is not sufficient evidence with to fasten guilt, in regard to demand and amount illegal gratiifcation’. as It is incorporate paragraph No.7 of the "7. Tke law on the issue is well settled that demand of illegal 988 Act. Mere recovery of tainted convict the accused when substantive reliable, unless there is evidence to show that the money is not sufifcient to evidence in the case IS not prove payment of bribe or to money was taken uoluntarily as a bribe. Mere recetpt of the amount by the accused is not sufficient to fasten guilt, m the absence of any evidence with regard to demand and acceptance of the amount burden rests as illegal gratiifcation. Hence, the to displace the on the accused statutoru presumption raised under Section 20 of the 1988 Act by bringing on record evidence, either direct establish with or circumstantial, to money was reasonable accepted by him, other than probability, that the 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 i - IS required to consider the accused, if any, only of probability and all reasonable doubt. explanation offered by the touchstone of preponderance on the not on the However, amount in touchstone of proof beyond before the accused iIS called upon to explain how the '2013(3) MLJ (Crl) 565 23 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." In B.Jayaraj Vs. State of Andhra Pradesh in Crl.A.No.696 of 2014 dated 28.03.2014, the Honl^le Apex Court held at 25. 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 himself. Mere possession and recovery of the currency notes from the accused 24 without proof of demand will Section 7. The above also will be not bring home the offence under conclusive insofar as the zs concerned as in the , the use as a public pecuniary advantage offence under Sections I3(l)(d)li) and (iij absence of any proof of demand for illegal gratification of corrupt or illegal means abuse of position or servant to obtain any valuable thing cannot be held to be established. or 9. Insofar as the Section 20 of the Act i presumption permissible to be drawn under IS concerned, such presumption can only be m respect of the offence under Section 7 and not the offences Act. In any event, it is gratiifcation that under Sections 13(l)(d)(l) and (ii) of the only on proof of acceptance of illegal presumption can be drawn under Section 20 of the such gratiifcation was received for doing orforbearing to do any ofifcial act. Proof of acceptance of illegal gratiifcation only if there is proof of demand. As the Act that can follow same is lacking in the present case the primary facts the basis of which the legal presumption under Section 20 can be drawn on are wholly absent. 26. From the judgments referred to above, it is clear that the HonlDle Apex Court has categorically held that, in order to prove a charge under Sections 7 and 13 of the Act, 1988, the prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. The Honhle Apex Court held that till that is accomplished, the accused officer should be considered to be innocent. The proof of demand of illegal 25 gratification, thus, is the gravamen of offence under Sections 7 • O and 13(l)(d)(i) and (ii) of 1998 Act and in the absence thereof. unmistakably the charge, therefore, would fail. The HonlDle 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 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. 28. In view of the foregoing discussion, this Court no hesitation to hold that the prosecution failed to establish its case against the accused officer for the offences under Sections 7 and 13 (2) read with 13 (1) (d) of the Act, 1988, beyond reasonable doubt, and the accused officer is entitled to acquittal. The trial Court did not consider these aspects in right perspective in passing the impugned judgment. 26 29. In the result, conviction the Criminal Appeal i IS allowed, setting aside against 30.06.2007 i the and appellant/accused officer i C.C.No.23 of 2002 ACB Cases, Nellore. guilty of the offences read with 13 (2) of the accordingly acquitted of the any, paid by the him. sentence recorded the in the judgment dated on the file of the in Special Judge for SPE 85 The appellant/accused officer is found ^and 13 (1) (d) 1988 and not punishable under Sections Prevention of Corruption Act, is said offences, appellant/accused officer Fine amounts, if shall be refunded to Consequently, miscellaneous this Criminal Appeal shall petitions, if any, pending in stand closed. SD/- S.V.S.R.MURTHY JOINT REGISTRAR ;' SECTION OFFICER //TRUE COPY// To, ,■*4 1 The Special Judge for SPE District [with records] 2. The Station House Officer, Tirupati Range. 3. One CC to SRI L.SRINIVASU 4. Two CCS to the Public Prosecutor^ Amaravathi. [OUT] 5. The Section Officer, Criminal Section Amaravati 6. Three CD Copies & ACB Cases, Nellore, SPSR Nellore Ante Corruption Bureau,Kadapa District Advocate [OPUC] High Court of Andhra Pradesh at 1 High Court of Andhra Pradesh at MV hi HIGH COURT DATED: 21/04/2025 JUDGMENT CRLA.No.949 of 2007 ALLOWING THE CRIMINAL APPEAL