APHC010413682008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI 1 TUESDAY,THE SIXTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 121 OF 2008 Appeal under Section 374 (2) of Cr.P.C against the Judgment passed by the Spl. Judge for ACB Cases-cum- III Addl. Dist. & Sessions Judge, Visakhapatnam, made in CC.No. 31 of 2001, dt. 09-01-2008. Between: Sri Yerubandi Siva Ramachandra Rao S/o Krishnamurthy, 57 years. Superintendent, O/o Executive Engineer, Spl. Minor Irrgiation Division, Paderu, ...APPELLANT/ACCUSED AND The State of Andhra Pradesh rep. by its Spl. Public Prosecutor, ACB., High Court of A.P., at Hyderabad, through Inspector of Police for ACB., Visakhapatnam District. ...RESPONDENT lA NO: 1 OF 2008fCRLAMP 155 OF 2008 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of Sentence dt. 09-01-2008 passed in CC.No. 31 of 2001 on the file of the Spl. Judge for ACB Cases,-cum- III Addl. Dist. & Sessions Judge, Visakhapatnam District. Counsel for the Petitioner : SRI P RAJASEKHAR Counsel for the Respondent: SRI S.SYAM SUNDER RAO (SC CUM SPL P.P. FOR ACB) The Court made the following : 1 APHC010413682008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] TUESDAY,THE SIXTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 121 OF 2008 Between: Sri Yerubandi Siva Ramachandra Rao, ...APPELLANT AND The State Of Andhra Pradesh ...RESPONDENT Counsel for the Appellant: 1.P RAJASEKHAR Counsel for the Respondent: 1.S.SYAM SUNDER RAO SC cum Spl P.P. For ACB The Court made the following Judgment:- 2 JUDGMENT: The present Criminal Appeal has been filed dated 09.01.2008, passed in C.C.No.31 of 2001 Judge for ACB Cases-cum- III Visakhapatnam (in short “learned Special Judge”). against the Judgment on the file of the Special Additional District and Sessions Judge 2. The sole accused is the Appellant herein and he C.C.No.31 of 2001 for the offences under Sections? was tried in and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 P.C.Act”). By its Judgment dated (in short ‘the 09.01.2008, learned Special Judgefound the accused/ appellant guilty of the offence under Section 13 (1) (d) read with 13 (2) of the P.C. Act, accordingly convicted him of the said offence and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for two months, while acquitting him of the offence punishable under Section 7 of the P.C. Act. Against the said conviction and sentence, the present Criminal Appeal has been filed. 3. For the sake of convenience, the partiesare hereinafter referred to, as they are arrayed in the trial Court. 4. Substance of charge as against the A.O is that on 25.01.2001 at 11.45 a.m., the A.O., being a public servant working as Superintendent, Office of Executive Engineer, Special Minor Irrigation Division, Paaderu, Visakhapatnam District, accepted or obtained a sum of Rs. 10,000/- 3 w towards bribe from P.W.1 as gratification other than legal remuneration as a motive or reward showing official favour for sanction and preparation of arrears of his Special Grade Increment and Earned Leave encashment,in exercise of official functions and thereby committed an offence punishable under Section 7 of the P.C.Act and that the A.O., by means ofcorrupt and illegal means or by otherwise abusing his position as such public servant, obtained pecuniary advantage to an extent of Rs. 10,000/- from P.W.1 and thereby committed an offence punishable under Section 13(1 )(d) and 13(2) of the P.C.Act. The brief allegations in the charge sheet are that P.W.1 worked as Assistant Engineer in Special Minor Irrigation Sub-Division, Chintapalli, Visaknapatnam and he retired from the service on 29.02.2000 attaining superannuation. He joined in the service of Irrigation Department in the year 1971 as Overseer, subsequently promoted as Assistant Engineer in the year 1980.He passed the Accounts Test in the year 1990. Since he could not qualify the Account Test before completing eight years of service as Assistant Engineer, Special Grade Increment was not sanctioned. Sixteen years Special Increment was also not sanctioned till the retirement from the service. He made an application for sanction of Special Grade Increments. He used to request the concerned authorities, including the A.O., but the matter was dragged on, onone pretext or the other.Finally, he approached the Chief Engineer of 5. on 4 Irrigation (Administration), A.P., Hyderabad Increment. The Chief Engineer sanctioned for sanction of Special Grade the Special Grade increment and issued proceedings. A.O. is the proper person to prepare the increment bills basing on the said order.P.W.1 approached the A.O. and requested to process the Special Grade Increment Earned Leaveencashment. On arrears as well as 13.12.2000 P.W.1 met theA.O. and requested to prepare the arrears bill etc., Thereupon, A.O. Informed that the leave account was settled and sanctioned and the said be paid on 06.01.2001. P.W.1 went to the amount would Office of Executive Engineer, said date and received the as 06.01.2001 under his signature. Special Minor Irrigation Division, Paderuon the sanctioned amountand put the date but on the request of the concerned clerk, he corrected the date 21.12.2000 In place of 06.01.2001 in the acquittance register, since the A.O. was not present in the office on 06.01.2001. as Subsequently on 24.01.2001, P.W.1 again approached the A.O. in the office and informed that he received the amount pertaining to leave account and further requested to sanction and prepare the increments arrears bill, for which the A.O. demanded an amount of Rs.10,000/- as bribe. P.W.1 expressed his inability to pay the demanded amount. The A.O. affirmed that unless amount prepare the bills and further instructed to pay the demanded amount on 25.01.2001. P.W.1 was not and until the demanded Rs. 10,000/- is paid to him, he would not of 5 willing to pay the demanded amount, but reluctantly agreed to pay the demanded amount and lodged a written complaint before the ACB Police, Visakhapatnam on 24.1.2001 Thereupon ACB Police registered the crime No.l/RC-WLR/2001 of Anti-Corruption Bureau, Visakhapatnam, for the offences underSections 7, 11, 15 and 13(1)(d) r/w 13(2) of the Prevention f of Corruption Act and took up investigation. The ACB Police conducted pre-trap and post-trap proceedings andsuccessfully trapped the A.O. on 25.01.2001 at 11-45 hours in the office at Paderu, Visakhapatnam District along with accepted bribe amount of Rs.10,000/-from P.W.1. During the trap proceedings, the trap party conducted chemical test on both hand fingers of A.O. and the 6. chemical test result was positive. The police seized the tainted amount along with rexine brown colour bag as the tainted amount was produced from the said bag by the A.O. The versions narrated by A.O., P.W.1 and other witnesses were incorporated in the trap proceedings by the mediators. The investigation established that the A.O committed an offence chargeable under Sec.7 and 13(1)(d) read with 13(2) of P.C. Act.The ACB Police submitted the report along with material to the concerned Secretary in the Government for according sanction to prosecute the A.O. Therefore, G.O.Ms. No. 138, lrrigation& Command Area Development (Ser.Vi.1) Department dated03.08.2001 was issued 6 according sanction to prosecute the A.O.Aftercompleting investigation, the charge sheet is filed. 7. In support of the case, the Prosecution has examined PWs. 1 to 4 and Exs.P.1 to Ex.P.22 and M.Os. 1 to M.0.8 were got marked. On the defence side, D.W.1 to D.W.5 were examined and Exs.D.1 to Ex.D.7 got marked. are 8. Learned counsel appearing on behalf of the Appellant submits that learned Special Judge, having acquitted the A.O. of the charge under Section 7 of P.C.Act, erred in convicting the A.O. under Section 13(1)(d) read with 13(2) of P.C.Act, as, when once, demand is not proved, mere recovery of the tainted amount from the possession of A.O would not constitute the offence under Section 13(1)(d) read with 13(2) of P.C.Act. 9. Learned counsel appearing for the Appellant further submitted that one Mr. P. Satyanarayana Murthy is a crucial witness to come to conclusion as to what actually transpired on the date of alleged incident. He further submits that he was present during relevant point of time. The prosecution has not examined the said crucial witness for the reasons best known to them. Because of the said reason, there is any amount of ambiguity in the persecution case. 10. Learned counsel for the Appellant further submitted that the spot explanation narrated by the A.O. is corroborated by the evidence of DW-5 7 and there is nothing to show that the rebuttal of the presumption cannot be believed. It is quite evident that the A.O at the. spot categorically stated that the amount that has been given by PW-1 is the amount, which has to be handed over to him by DW-5. On the other hand, learned Special Public Prosecutor for the State submitted that the evidence of PW-1 is sufficient to come to a conclusion that the money has been illegally received from PW-1 by the A.O. Learned Special Public Prosecutor further submits that the evidence of PW-1 is cogent and trustworthy and nothing has been elicited in his cross examination to draw adverse inference. Learned Special Judge has rightly held that the prosecution has proved the guilt of the A.O. beyond reasonable doubt for the charge under Section 13(1)(d) read with 13(2) of the P.C.Act, and therefore, there are no grounds to interfere with the said judgment. 11. 12. Heard both sides. Perused the record. 13. PW-1 is a retired Government Servant and he retired as Assistant Engineer in the month of February, 2000 in Special Minor Irrigation Sub Division, Chintapalli. He passed the Gazetted Officer’s Account Test in the month of May-1990. In the year 1980 he was promoted as Assistant Engineer. The Chief Engineer, Irrigation issued two separate proceedings on 12.06.2000 for 10 years increment and 16 years increment. Exs.P1 and P2 are the relevant proceedings. 14. PW-1 states that he filed a representation for Special Grade Increments and Special Increments and he payment of arrears of met the A.O number of times in connection with his bills prior to 13.12.2000. On 13.12.2000, PW-1 met the A.O in his office at Paderu and enquired about his bills. The A.O informed him that after settling his leave salary he would lookafter the arrears bills. On 06.01.2001, PW-1 went to the office at Paderu, but as the A.O was on leave and he submitted a written application before the Executive Engineer and the same was handed over to the Establishment Section after endorsement of the Executive Engineer. Ex.P3 is the Written Application dated 06.01.2001. Again on 24.01.2001, PW-1 went to the office of the A.O., met the A.O. at about 10 a.m and enquired about his increment arrears bills stating that he received the leave salary. The A.O demanded an amount of Rs. 10,000/- for preparation of arrears bills for which PW-1 expressed his inability to meet the demand of A.O. Thereupon A.O informed the PW-1 that he would not prepare the arrears bills unless demand amount is paid. A.O. also informed to the PW-1 to pay the demand amount on 25.01.2001 then only he would prepare the bills. Since PW-1 was not willing to pay the bribe amount, he reluctantly agreed to pay the said amount to the A.O. 9 Thereafter, he went to Visakhapatnam and Superintendent of Police in his office i.e.PW-3. met the ACB Deputy 15. On 24.01.2001. PW-3 Deputy Superintendent of Police ACB, Visakhapatnam received a report from the PW-1 alleging that A.O. demanding Rs. 10,000/- was as bribe for doing official favour for grant of Special Grade Increments and balance bills. PW-3 instructed to PW-1 to come at 10.30 a.m along with proposed bribe amount to give to the A.O. On 25.01.2001 at about 5.30 a.m, PW-3 registered a complaint given by PW-1 as 1/RC/WLR/2001 for the offences under Section 7 11. 13(2) read original FIRi.e concerned. Thereafter, PW-3 prepared pre-trap proceedings. Ex.PS is the pre-trap proceedings. On 25.01.2001 at about 8 reached Venkataramana Theatre at Paderu reiterated his earlier instructions to PW-1 to proceed to the office followed by InspectorM.Appa Rao closely. with 13(1) (d) read with 13 (2) and 15 of the P.C.Act and EX.P21, along with material,was sent to the Court a.m, PW-3, PW-1 and mediators and staff at 11.50 a.m. PW-3 of A.O 16. It is pertinent to mention here that the said Inspector who accompanied PW-1 was not examined by the prosecution for the best known to them. On 25.01.2001 reasons at 11.45 a.m, PW-3 received signal from the InspectorM.Appa Rao and immediately thereafter PW-3 and members of the party proceeded to the office of A.O. Thereafter, proceedingsEx. P20 were prepared. The A.O filed Written post trap Statement and 10 examined the defence witnesses. In his Written A.O., PW-1 is Statement, according to a chronic litigant and man of vindictive nature. His married the daughter of Nageswara Rao. son PW-1 could not attend the marriage of his son as he also performed the marriage of his daughter in the same Muhurtham. There i from the in-laws house for the Sankranthi festival. Sankranthi festival due to the death of his brother. According 11.30 IS custom of Ashadapatti in their families newly married couple at the time was not performed in his family to him, on 25.01.2001 at about office of PW-1 a.m. came Rs. 10,000/- stating that the said towards Ashadapatti for purchase of to his and gave amount is sent by Nageswara Rao new cloths. He further stated that after receiving the amount from PW-1, PW-1 requested him to pursue his increments bill. There are specific instructions from higher authorities to keep all the bills of PW-1 in abeyance as the PW-1 did not amount of Rs.98,000/- and did not hand books to his successor till the date of retirement. account the over the charge of account Thereafter, PW-1 left his office, but within no time the ACB officials came to his office and he narrated the version informing that he received Rs. 10,000/- believing that Rao through PW- the said amount was sent by his ViyyankaNageswasra 1. PW-2 is the mediator, who speaks with regard to pre and post trap proceedings and in other wards PW-2 is a Panch witness to the entire transaction that had taken place. 11 17. On behalf of defence, DWs 1 to 5 is extracted hereunder for ready reference; were examined, whose evidence 13. D.W. 1 Sn N. Peravadhani evidence is that presently he is workina ZrZTnl ll ^"rnool.^reJZy Z 9^ta1 n 1 S<">-0/TO/on, Koyyuru during 14-7- the Superintendent in Rpgmcr Executive Engineer, S.M.I. Division, Koyyuru PW.1 Ramaswamy worked as Asst. Executive Engineer, Koyyuru under him to ChnT ^ wastransferred from the Koyyuru Division PWlJnrnaT on 3-6-99 Z the outstandinZLT^'^ charge to his successor and not accounted the outstanding balance amount pertaining to IT DA works After verifying records, he issued a letter Ex.D.1 dt. 29-5-2000 askgZP W I PwZrtTredloZT^^' unaccounted amount was Rs.99,176/-, P. w. 1 retired from the service in the month of February 2000 He also In EngineenVisakhapaZam, evIdZceZihat hZworked as^yTZZZl oTZ^He fnnZh^Z^ during 1-6-2000 to 5-7- fZru Z ^ ^ ^^ocharge from D.W. 1 on his transfer. At that time A O worked as superintendent in the office of S.M.I. Division Paderu P W1 Ramaswamy worked as Asst.Engineer. S.M.I. Division KoyyZMni h,s m-charge penod. P.W.1 retiredfrom the semie ai chintaaTfu Division. He came to know through available record maintained by his predecessor that PW. 1 not accounted the advance amoZs He sZuZd Ex.D.3 Letter dt. 23-6-2000 to P.W.1 asking to account the rZeived emounts. During his m-charge period, P.W.1 not responded to his letter and not accounted the received amounts. 15.D.W.3 Sri U. Narayana Raju, retired Superintendent Enaineer IZZZm Executive Engineer, Paderu during June 2000 to November 2000. During that period, DW2 worked as Sub 1 rIZ'^ ^^rno dt. 4-9-2000 to P W 1 Ramaswamy, retired Asst. Engineer to submit accounts for Ze received amounts and asked to hand over the charge at Sub-Division Zin Zif ^ Rao, retired Executive Engineer evidence IS that he worked as Dy. Executive Engineer, S.M I Division Kovvuni during July 2000 to January 2002. A.O. worked as Superintendent in the office of Executive Engineer, S.M.I. Division, Paderu When he Zed secZe pZTwZ retired dm the mo pZIdiriZnf Z^^^ SaiD-D/V/s/0A7 in the year /yyy. h.w.I did not hand over the charge to his successor nert^iL in 7m fo TwTZ- *7 °"9™' 0 5 Letter dt. 24-8-20oSissued by m to P..W1 asking to hand over the section charge and account books 12 to his successor, but there was no response from P.W.1. Subsequently he issued five reminders, but there u/as no reply. He issued reminder to hand over the section charge and account books. 17.D.W.5 Sri N. Nageswara Rao, retired employee, evidence is thathis daughter i/i/as given in the marriage of son of A. O. in the month of April 2000.The marriage was performed at Narsipatnam. At that time A.O. ivas working as Superintendent in the office of SMI Division, Paderu. P. \N. 1 is the son of his paternal aunt. P. W. 1 worked as Asst. Engineer in Irrigation department at Chintapalli. P. H/. 1 also performed the marriage of his daughter on the date of marriage of his daughter. P.W.1 retired from the service in tine month of February2000. In the month of November 2000, P. .W 1 asked him to recommend the A. O. to pass his pending T.A. and other bills. In turn he asked A.O. to pass the pending bills of P.W.1. A.O. informed him that his higher officers asked him to keep the bilis pending. The same fact informed to P.W.1 by him. Subsequently on 21-12-2000 the elder brother of A.O. died. He and his wife went to the house of A.O. to console him. He offered Rs. 10,000/- to A.O. for first Sankranthi Festivai of his daughter, but A.O. refused to receive the amount at that time since his brother expired and asked him to send the same amount later. Subsequently on 20-1-2001, P.W.1 came to his house; he enquired with P.W.1 about his next visit at Paderu, P. W. 1 informed him that he will go to Paderu within two or three days, there upon he handed over Rs. 10,000/- to P.W. 1 asking to hand over the same amount to A.O, P.W, 1 took the amount from him and left the house. On the next day, he informed to A.O. through phone call that amount is sent by him through P.W.1. Subsequently five or six days later, he came to know that the amount i/vas used by P. .W 1 to trap the A.O. He enquired with P.W.1 about his act, there upon P.W.1 scolded him. One week after scolding, the amount was returned to him through Meesala Subbanna. ” The question that arises for consideration in this Criminal Appeal is the learned Special Judge, having acquittedA.O. of the offence 18. punishable under Section 7 of the P.C.Act, for the reason that he disbelieved the version of the prosecution with regard to demand by the A.O.. which has become final and the prosecution has not preferred any Appeal, whether the conviction under Section 13 (1) (d) read with 13 (2) of the P.C. Act is sustainable basing on the same evidence. 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 4 13 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 pecuniary advantage, he is guilty of the criminal misconduct punishable under Section 13 (2) of the PC Act, 1988. Proof of demand and or 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. But, once the said theory of demand has been disbelieved by the learned Special Judge, the question ofconvicting the A.O. of the offence under Section 13 (1) (d) read with 13 (2) of the P.C. Act basing on the recovery of tainted currency from the possession of the A.O. is not maintainable. 20. Time and again, this Court and Apex Court, consistently held that on mere possession and recovery of currency notes, from the possession of the Accused without there being any demand made out, the conviction and sentence cannot be sustained. 14 21, In the present case on hand, admittedly, the theory of demand has been disbelieved. A.O. submitted a Written Statement stating that the said amount has been received by him through PW-1 on the pretext that the same is sent by one Nageswara Rao, who was examined as DW-5 under the guise of Ashadapatti, and when PW-1 gave the amount to the A.O, he received the same on the said pretext. In connection with that,the said Nageswara Rao was also examined as DW-5. He categorically stated that the said amount has been sent by him through PW-1. DW-5 further stated that in the month of November-2000, PW-1 asked him to recommend the A.O to pass pending un-cleared bills. In turn DW-5 informed the A.O to pass the pending bills relating to the PW-1. A.O informed that higher officials informed to keep the bills pending. He informed the said fact to PW-1. Subsequently on 21.12.2000, elder brother of A.O died. DW-5 and his wife went to the house of A.O to console him. DW-5 offered Rs. 10,000/- to A.O for first Sankranthi festival of his daughter’s marriage, but A.O refused to receive the amount at that time since his brother expired and asked him to send the same amount later, as it is the custom in their family. Subsequently on 20.01.2001, When PW-1 came to thehouse of DW-5, he enquired PW-1 about his next visit to Paderu..PW-1 informed him that he would go to Paderu within two or three days.Therefore, DW-5 handed over Rs. 10,000/- to PW-1 asking to hand over the said amount to A.O. PW-1 took the amount and left the 15 house. On the next day, DW-5 informed the A.O through phione call that the amount is being sent through PW-1.DW-5 was cross examined and nothing incriminating has been elicited from the DW-5, so as to disbelieve the evidence of DW-5. Learned counsel appearing on behalf of the A.O further submitted that the Executive Engineer is sanctioning Authority for the bills and A.O is the person, who only prepares the bills. When the appellant is not the officer, who can sanction the bills, the question of A.O demanding the 22. amount ofRs. 10,000/- from PW-1, knowing pretty well that PW-1 happens to be his relative, appears to be remote. PW-1 in his examination-in-chief further stated that on the date of 23. the incident, when he handed over the amount to the A.O in pursuance of the demand made by him, the A.O took the amount, counted with two hand fingers and kept the same in the hand bag and the hand bag was kept in his table drawer. Thereafter, the A.O is alleged to have been instructed his clerk Satyanarayana to get the file from establishment. Accordingly, PW-1 went to the seat of Satyanarayana and Ex.P3 was handed over to the A.O. He further submitted that the Establishment Clerk Satyanarayana accompanied PW-1 from his chamber to the A.O seat. Thereafter, A.O asked the establishment clerk Satyanayrana to bring the concerned G.Os. Accordingly, said Satyanarayana brought the copies of G.Os. Thereafter, A.O instructed the Establishment Clerk to 16 prepare the bills within ten days. The said Satyanarayana, the Establishment Clerk was present throughout the incident along with PW-1 and A.Q. It really such is the situation, it is not known as to why the prosecution failed to examine the said Satyanarayana, Establishment Clerk. Non-examination of said Satyanarayana gives a reason to raise one’s eye brow, there is any amount of doubt on the prosecution case. Except the evidence of PW-1, there is absolutely no evidencecorroborating the evidence of PW-1. As per the instructions given by PW-3 during the trap proceedings, PW-1 had to be accompanied by the Inspector. Basing on the signal given by the said Inspector PW-3 and staff had done the post trap proceedings. It is pertinent to mention here that the post trap proceedings have 24. taken place not at the instance of the pre-arranged signal given by PW-1 but at the instance of the signal given by the InspectorM.Appa Rao. Quite surprisingly, the prosecution has failed to examine the said Inspector, who had given the signal to the PW-3 to conduct post trap proceedings. Learned counsel appearing on behalf of the appellant relied upon 25. the decision of Hon’ble Apex Court in “M.R.Purushotham v. State of Kamataka”\ wherein it was held as follows:- "6. In such type of cases the prosecution has to prove that there ivas a demand and there w/as acceptance of illegal gratification by the ‘2015(3) see 247 17 accused. As already seen the complainant PW-1 Ramesh did support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosuection to the demand made by the accused with the complainant. In this context the recent decision of a three Judge bench of this Court in B. Jayaraj v. State of Andhra Pradesh reported in 2014(4) Scale 81 is relevant and it is held as follows: not prove “8. In the present case, the complainant did not 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 (Exbt.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 Exhibit P-11 support the cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We 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 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 without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) concerned as 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 established”. are, therefore. as IS 18 26. He further relied on a decision of Hon’ble Apex Court in “Aman Bhatia v. State (GNCT ofDelhi)”^, wherein it was held as follows;- “52.lt is well-settled that mere recovery of tainted money, by itself, is insufficient to establish the charges against an accused under the PC Act To sustain a conviction under Sections 7 and 13(1)(d) of the Act respectively, it must be proved beyond reasonable doubt that the public servant voluntarily accepted the money, knowing it to be a bribe. The courts have consistently reiterated that the demand for a bribe is sine qua non for establishing an offence under Section 7 of the PC Act. 53. A five-Judge Bench of this Court in Neeraj Dutta v. State (Government of NCT of Delhi), reported in (2023) 4 SCC 731, categorically held that an offer by bribe-giver and the demand by the public servant have to be proved by the prosecution as a fact in issue for conviction under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act. Mere acceptance of illegal gratification without proof of offer by bribe-giver and demand by the public servant would not make an offence under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act. The relevant observations are reproduced hereinbelow: "88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.ln the case of obtainment, the prior demand for illegal ^Criminal Appeal No. 2613 of 2014, dated 02.05.2025 19 - // , gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. rt (Hi) In both cases of (i) and (it) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in Issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii). respectively of the Act. Therefore, under Section 1 of the Act in order to bring home the offence, there must be anoffer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (i) of the Act" (Emphasis supplied) 55. From the above exposition of law, it may be safely concluded that mere possession and recovery of tainted currency notes from a public servant in the absence of proof of demand, is not sufficient to establish an offence under Sections 7 and 13(1)(d) of the PC Act respectively. Consequently, without evidence of demand for illegal gratification, it cannot be said that the public servant used corrupt or illegal means, or abused his position, to obtain any valuable thing or pecuniary advantage in terms of Section 13(1)(d) of the PC Act. I 57. By applying the abovementioned principles to the evidence on record, we are of the considered view that, having regard to material Inconsistencies in the testimony of the complainant and the testimony of the panch witness, the allegation of demand by the appellant herein does not emerge clearly, let alone being proved beyond reasonable doubt. ” 20 V.M 'v* 27. In P. Satyanarayana Murthy v. District Inspector of Police and Anr.,hhe 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 abuse of position as a public servant to obtain or any valuable thing or pecuniary advantage cannot be held to be proved, 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 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." ^(2015) 10 SCO 152 21 The said principle was reiterated by the Hon’ble Apex Court in Mukhtiar Singh (since deceased) through his Legal Representative v. State of Punjab‘S, 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 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." In C.M. Sharma v. State of Andhra Pradesh efc./the Hon’ble 28. 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 “ (2017) 8 Supreme Court Cases 136 ®LAWS (SC) 2010 11 84 22 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. 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 show that the accused voluntarily accepted the to be bribe. prove payment of bribe or to money knowing it 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 recovery of the amount or not, the court must on the an offence viz. demand, acceptance and of illegal gratification have been satisfied take into consideration the facts and circumstances brought record in their entirety. ” 29. 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 prosecution has to 23 ,• fh,m m establish by proper proof, the demand and acceptance of illegal gratification. m 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. The Hon’ble Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification recovery thereof, de hors proof of demand, ipso facto, would thus not be sufficient to bring home the charge under aforesaid two sections. would fail. or 30. In State of Punjab v. Madan Mohan Lai Verma^, 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 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. ®2013(3) MU (Crl) S65 24 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 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 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 money was on the person. The aforesaid Judgmentsare squarely applicable to the present case. Learned Special Judge, on one hand, having disbelieved the version of the prosecution with regard to the demand made by the A.O, cannot, on the other hand, hold that the A.O. is guilty of the offence under Section 13 (1) (d) read with 13 (2) of the P.C. Act. 31. Accordingly, the conviction and sentence recorded by the learned Special Judge for the 25 F offence under Section 13 (1) (d) read with 13 (2) of the P.C. Act are liable to be set aside. 32. Accordingly, the Criminal Appeal is allowed, setting aside the conviction and sentence recorded against the appellant for the offence under Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 in Judgment dated 09.01.2008, passed in C.C.No.31 of 2001 on the file of the Special Judge for ACB Cases-cum- III Additional District and Sessions Judge, Visakhapatnam. The appellant/A.O. is found not guilty of the charges framed against him and he is acquitted of the said charges. Fine amount, if any, paid by him shall be refunded to him. Consequently, miscellaneous petitions, if any, pending in this Criminal Appeal shall stand closed. SD/- S.V.S.R.MURTHY JOINT REGI^RAR //TRUE COPY// SECTldN OFFICER To, 1. The Special Judge for ACB Cases Cum III Additional District & Sessions Judge, Visakapatnam (with records) 2. The Station House Officer, Anti Corruption Bureau, Visakapatnam Range, Visakapatnam. 3. OneCC to SRI. P RAJASEKHAR Advocate [OPUC] 4. One CC to SRI. S.SYAM SUNDER RAO SC cum Spl P.P. For ACB Advocate [OPUC] li. The Section Officer, Criminal Section, High Court of Andhra Pradesh. 6. THREE CD COPIES PR tn f i TAP. i HIGH COURT DATED:06/05/2025 JUDGMENT CRLA NO. 121 OF 2008 ALLOWING THE APPEAL