Chikkala Subbarayudu Vs the State of a.P., Rep. by Spl.P.P. for Acb Cases

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CRIMINAL APPEAL NO: 1168 OF 2006

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Appeal under Section 374(2) of Cr.P.C, aggrieved by the Judgment in C.C.No. 20/2000 on the file of the Special Judge for SPE & ACB Cases, Nellore, dt. 01.09.2006.

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Between:

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Chikkala Subbarayudu, S/o Late C.Venkata Subbaiah, Aged 50 years, R/o D.N0.5/1711-A (Upstairs), Geetha Ashramam Street, Proddatur Village, Kadapa District., worked as Office Superintendent, O/o. The Mandal Revenue Officer, Chapadu Mandal, Kadapa District.

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...APPELLANT/ACCUSED

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AND

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The State of Andhra Pradesh., rep. by its Special Public^Prosecutor (ACB), High Court of A.P., Amaravathi.

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...RESPODENT

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I.A. NO: 1 OF 2006(CRLAMP. NO: 1450 OF 2006)

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Petition under Section 389 (1) of Cr.P.C., praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of sentence of imprisonment passed against the appellant in C.C.No.^{20/2000onthefile}

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of ihp Special Judge for SPE & ACB Cases, Nellore, dt. 01.09.06, and the petitioner/appellant on bail, on such conditions as this Hon'ble deems fit, pending disposal of the Criminal Appeal.

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Counsel for the Appellant : SRI N PREMRAJ

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Counsel for the Respondent : PUBLIC PROSECUTOR

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The Court made the following JUDGMENT :

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APHC010240012006

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IN THE HIGH COURT OF ANDHRA PRADESH 35: AT AMARAVATI [3327] E] (Special Original Jurisdiction)

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MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CRIMINAL APPEAL NO: 1168/2006

Between:

Chikkala Subbarayudu

...APPELLANT

AND

The State of AP, Rep by Spl. PP for ACB Cases ...RESPONDENT

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Counsel for the Appellant:

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1.N PREMRAJ

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Counsel for the Respondent:

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1. PUBLIC PROSECUTOR

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The Court made the following:

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JUDGMENT

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Sole Accused Officer (hereinafter referred to, as ‘the AO’) in Calendar Case No.20 of 2000 on the file of the learned Special Judge for SPE & ACB Cases, Visakhapatnam (for short^{‘thelearned} Special Judge’), filed this Criminal Appeal challenging the Judgment dated 01.09.2006, whereunder and whereby the AO was^convicted of the offences punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act, 1988’) in terms of Section 248 (2)^oftheCodeof the Criminal Procedure, 1973 (for brevity ‘CrPC’) and^sentencedto undergo rigorous imprisonment for a period of six (06)^monthsand to pay a fine of Rs.200/- (Rupees two hundred only), in default, to suffer simple imprisonment for a period of one (01)^month for the offence punishable under Section 7 of the PC Act; the^AOwas further sentenced to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs.300/- (Rupees^threehundred only), in default, to suffer simple imprisonment for a period of two (02) months for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988. It was^{directedthatboth} the sentences of imprisonment shall run concurrently.

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Sum and substance of the charges against the accused officer is that, on 27.11.1999, the accused officer, being a public servant, employed as Office Superintendent in the Office of the Mandal Revenue Officer, Chapadu Mandal, Cuddapah District, demanded P.W1, to pay gratification of Rs.1,000/-, which was other than legal remuneration, as a reward for issuing pattadar pass book in his favour, for the land in an extent of Ac.3.00 cents at Judgekottala, purchased by him from one Katika Abdul Haq under a Registered Sale Deed, dated 28.04.1999 and reduced the same to Rs.500/- and accepted the said sum on 29.11.1999 at 4.35 p.m. at his office towards illegal gratification and obtained pecuniary advantage without any public interest and abused his position as such public servant, thereby committed the offences punishable under Section 7 and Section 13 (2) read with 13 (1) (d) of the PC Act, 1988.

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Brief facts of the prosecution case are that the accused officer worked as Office Superintendent in the office^oftheMandal ' Revenue Officer, Chapadu Mandal, Cuddapah District from 04.09.1998 to 01.12.1999.

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(b) P.W1 is resident of Siddareddypalli village, Chapadu Mandal, Cuddapah District; that he purchased Ac.3.00^centsofland

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at Jadgekottala from L.W4/Katika Abdul Haq on 28.04.1999 and got registered the same in the Office of the Sub-Registrar, Mydukur; that P.W1, in order to obtain the pattadar pass book in his name, applied for pattadar pass book before the Mandal Revenue Officer, Chapadu on 22.05.1999.

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(c) That the Mandal Revenue Officer, Chapadu issued orders to issue pattadar pass book to P.W1 and the^samewas forwarded to the AO, who was dealing with the concerned seat; that the AO assigned number to the file as Ref.C/20/ROR/99;^thatinthe month of June, 1999, when P.W1 approached the Mandal^Revenue Officer, he was instructed to meet the AO; that when P.W1 met the AO, P.W1 was informed that he was busy with election^workand asked him to meet in the end of October, 1999; that^on27.11.1999 P.W1 approached the AO at his office and requested^himtoissue pattadar pass book in his favour, for which, the AO^demandedP.W1 to pay Rs.1,000/- towards bribe amount; that when P.W1 pleaded that he cannot afford that much amount, the AO asked P.W1 to pay at least Rs.500/- as bribe to issue pattadar pass book;^thattheAO demanded P.W1 to pay the bribe amount on 29.11.1999 in the afternoon hours at his office.

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(d) UnwHIing to pay the bribe amount to the AO, P.W1 approached P.W5, Deputy Superintendent of Police, ACB,^Tirupati Range, who was on camp at Cuddapah on 28.11.1999 and gave Ex.P3(A)-report, who in turn, basing on the strength of Ex.P3(A)report, registered a case in Crime No.10/RCT-TCD/99.^Ex.P16 is the FIR; that P.W5 got prepared Ex.P8-Pre-trap Proceedings^inthe presence of P.W2, Assistant Hydro Geologist, Andhra Pradesh Ground Water Department, Cuddapah and L.W3/B.Chalapathi, Typist in the office of the Deputy Director, Ground Water Department, Cuddapah.

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(e) On 29.11.1999 at about 2.00 p.m. P.W1 approached the AO at his office; that the AO asked P.W1 as to^{whetherhecame} with the proposed bribe amount, for which, P.W1 answered affirmatively; that the AO asked P.W1 to wait outside^{tillhecalledin} and at about 4.35 p.m. the AO called P.W1, demanded and accepted Rs.500/- from P.W1; that the AO received the^pattadar pass book stands in the name of L.W4/Katika Abdul Haq^andasked ' P.W1 to come on the next day to take the pattadar pass book; that on giving prearranged signal by P.W1, P.W5, DSP, ACB,^Tirupati along with his staff and mediators rushed into the^{officeroomofthe} Mandal Revenue Officer and found the AO sitting in^achair;that

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P.W5 on introducing himself to the AO, the AO took out the tainted currency notes from his pant back pocket and threw away on the floor at the south-east corner of the room; that the chemical test conducted to both hands fingers proved positive. P.W5 in the presence of P.W2 and L.W.S/B.Chalapathi, mediators,^seizedthe tainted currency notes, compared the serial numbers available in Ex.P8-Pre-trap Proceedings and found tallied. P.W5 seized the file bearing No.C/20/ROR/99 relating to P.W1, which was produced by the AO and pattadar pass book stands in the name of L.W4/Katika Abdul Haq under the cover of Ex.P11-Post-Trap Proceedings.

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(f) After completion of investigation and on receipt of Ex.P15-prosecution sanction proceedings dated 16.08.2010, charge sheet was filed against the accused officer for the aforesaid offences.

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On appearance of the accused officer, copies of case 'documents were furnished to him as required under^Section207 CrPC and, thereafter, charges under Sections 7 and 13 (2) read with 13 (1) (d) of the PC Act, 1988 were framed against^theaccused officer and the contents of the said charges were read^overand explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PWs.1 to 6 and got marked Exs.P1 to PI 7 and MOs 1 to 8.

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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. D.W1, Panchayat Secretary, Chapadu was examined on behalf of defence.

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The learned Special Judge, on appreciation of entire oral and documentary evidence on record, found the accused officer guilty of the charges under Sections 7 and 13 (2) read with 13 (1) (d) of PC Act, 1988 and convicted him of the said charges and sentenced him as aforesaid. Against the said conviction^and sentence, the present Criminal Appeal has been preferred by the accused officer.

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Learned counsel for the appellant submits that the entire prosecution case rests on the solitary testimony^ofP.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 P.W1 completely resiled from his earlier version while deposing before the Court and he did not depose

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about either the demand or acceptance of bribe by the^accused officer, as alleged by the prosecution. He further submits that nothing has been elicited in his cross-examination by the learned Special Public Prosecutor to connect the accused officer with the offences alleged and there is no legal evidence. Learned^counsel further submitted that the accused officer, being the Office Superintendent in the Office of the Mandal Revenue Office, has no authority to process the file of granting pattadar pass book to P.W1. Learned counsel further contended that the tainted currency notes were not recovered from the possession of the^accused officer and it was recovered from the place where it was thrown by the accused officer and when the reason for throwing the currency notes instantly explained by the accused officer to the trap party, it probablises the version of the accused officer. The learned Special Judge without considering the legal evidence in a right perspective erred in convicting the accused officer, hence the^{convictionand} sentence recorded against the accused officer are liable^tobeset aside.

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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^would

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not efface from the record. He further submitted that the evidence of P.W1, coupled with seizure of the tainted amount^{fromtheoffice} room of the accused officer and result of the chemical test i.e. in Sodium Carbonate solution test, the left and right hand fingers and inner lining of the pant pocket of the accused officer turning 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^thelearned Special Judge has rightly convicted the accused officer,^whichcalls for no interference by this Court.

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Heard. Perused the record. 11. Now the point for determination is whether the prosecution proved its case against the appellant/accused^officerfor the offences punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) read of the PC Act, 1988 beyond^reasonable doubt, and whether the judgment of the trial Court needs interference of this Court? 12. In order to attract an offence under Section 7 of the PC Act, 1988, the necessary ingredients to be established^arethatthe appellant herein/AO is a public servant and that he accepted or obtained gratification other than legal remuneration and the

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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 criminal misconduct punishable under Section 13 (2) of the PC Act, 1988.

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The appellant herein/AO was working as Office Superintendent in the office of the Mandal Revenue Officer, Chapadu Mandal, Cuddapah District from 04.09.1998 to 01.12.1999, at the relevant point of time of the incident. There is no dispute that he was a public servant within the meaning^ofSection2 (c) of the PC Act, 1988.

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A perusal of prosecution evidence, P.W1, who set the criminal law into motion, deposed in his evidence that five prior to date of his evidence, he purchased Ac.3.00 cents of land at Jadgekottala village from L.W4/Katika Abdul Haq for a sum of Rs.47,000/- under a Registered Sale Deed. P.W1 further deposed that he applied for pattadar pass book for the said Ac.3.00 cents of land by filing an application in the Mandal Revenue Office, Chapadu: that sometime thereafter, he obtained the Sale Deed and went to the MRO Office along with one Pitchaiah, VAO.

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It is the further evidence of P.W1 that one Pitchaiah, VAO took him to the MRO Office, obtained his signatures^onthe application and claim form and handed over the same^totheMRO and he was told to come later; that when P.W1 met the said Pitchaiah, VAO, he was informed that the MRO directed the AO^to attend the said work. He further deposed that he followed Pitchaiah, VAO to Cuddapah to see as to whether his work was done^ornot. It is the specific evidence of P.W1 that he does not know the designation and occupation of the AO and he never met^himand that the AO never demanded him for bribe. He further deposed that he along with Pitchaiah, VAO went to Cuddapah and there,^P.W1 was asked to wait under a tree and the said Pitchaiah went into the ACB Office; that the said Pitchaiah came out with a report and obtained the signature of P.W1 on Ex.PSA-report. He further deposed that he handed over Ex.PSA-report to the DSP^andcame out and after sometime, Pitchaiah, who met the DSP^cameoutand asked P.W1 to bring Rs.500/- on the next day.

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P.W1 further deposed that on the next day when he was waiting outside, Pitchaiah went into the ACB Office and thereafter, when he entered into the office, Pitchaiah^askedhimto hand over Rs.500/- to the DSP. It is the specific evidence^ofP.W1

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that one day prior to their going to the ACB Office, Pitchaiah showed the AO stating that he was the Superintendent and he had to pay the money to the AO. He specifically deposed that he does not know the purpose for which the amount had to be paid to the AO. P.W1 further deposed that he handed over Ex.P4-pass book of his vendor, L.W4/Katika Abdul Haq, to the AO and in turn, the AO told P.W1 that he would issue pass book in his name on the next day and asked him to come on the next day; that when P.W1 offered to pay the money to the AO, he asked P.W1 to hand over the money to an Attender, but no Attender was present; that when the AO was standing, P.W1 thrusted the money in his back pocket and the AO threw away the money on the table and in the meanwhile, the DSP and other raid party members entered into the room of the AO and P.W1 went away. It is the specific^evidenceof P.W1 that he was not called inside the office of the AO afterwards and he was not examined by the DSP and his statement was not recorded. P.W1 further deposed that ten days thereafter^he was taken by Pitchaiah to Cuddapah, ACB Office, there, a proforma was given him and he was asked to give the statement as noted in the proforma before the Court or else a case would be filed against him;

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that he gave statement before the Magistrate under^Section164 CrPC.

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With the permission of the Court, P.W1 was declared hostile and he was cross-examined by the learned Special^Public Prosecutor. Even though P.W1 was cross-examined by the prosecution, except putting suggestions, which have^beendenied by P.W1, nothing has been elicited in his cross-examination to connect the accused with the offences alleged.

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In the cross-examination of P.W1 conducted by the learned defence counsel, he deposed that he gave his^statementto the Magistrate under Section 164 CrPC as tutored by^theACB Officials and the contents therein are not correct. He concedes that the AO refused to receive the tainted currency notes^whenoffered by him and threw away the same with his both hands^andP.W1 was informed to pay the same to the concerned clerk^ifhewantsto do so, and thereby, the AO stood up and was keeping Ex.P4pattadar pass book in the almarah, and at that time, P.W1 kept the tainted currency notes in his pant pocket; that the^AOtookoutthe same in his presence and threw away the same. P.W1 further concedes that upon the request made by P.W1, the AO^received Ex.P4-pattadar pass book as nobody was present in the^officeand

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while receiving Ex.P4-pattadar pass book, the AO was saying that the VAO and the MRO are the concerned to issue pass^bookto P.W1 and that he was not the concerned person; that^henevermet the AO and the AO never demanded for bribe and he never paid the bribe amount to him. It is the specific evidence of^{P.W1thathedid} not meet the AO prior to the trap. He concedes that^heoffered Rs.500/- tainted money to the AO towards donation of^Pulse-Polio programme, as the Clerk working in his office requested^himfor donation.

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Indisputably, P.W1 turned hostile to the case of prosecution. A bare perusal of the evidence of P.W1 goes to show that it is full of inconsistencies and discrepancies. At one stage, P.W1 deposed that he does not know the designation and occupation of the AO and he never met him and one day prior to his going to the ACB Office, Pitchaiah, VAO showed the AO stating that he is the Superintendent, and P.W1 had to pay the money^tohim and at later stage, he deposed that he handed over Ex.P4-pass book of his vendor L.W4/Katika Abdul Haq to the AO^andwhenhe offered to pay bribe to the AO, he asked P.W1 to hand^overthe same to an Attender and when no Attender was present nearby, P.W1 tried to thrust the money in the back pocket of the AO. P.WI,

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during his cross-examination by the learned defence counsel, surprisingly deposed that he offered Rs.500/- tainted money to the AO towards donation for Pulse Polio programme, as the Clerk working in the office requested for the said donation. Indeed, the evidence of P.W1 does not disclose the dates as to when he made application in the MRO Office seeking for issuance of pattadar pass book, when the AO demanded for bribe amount, when he approached the ACB Official and when he met the AO to give the bribe amount. Furthermore, the prosecution did not^examinethe said Pitchaiah, as he was said to have obtained the signature of P.W1 on Ex.PS-A report filed against the accused officer.^Therefore the evidence of P.W1, who is declared as hostile to^thecase of prosecution, cannot be a basis to find the accused officer guilty of the charges.

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Coming to the evidence of P.W2, he is one of the mediators. His evidence is to the effect of conducting^Exs.P8and P11, Pre-trap and Post-trap proceedings. As per the^evidenceof ' P.W2, along with P.W1, 2"^^ mediator, one Inspector^andConstable proceeded to the office of the MRO on the date of trap.^Inthecross- examination of P.W2, he deposed that after the AO throwing^away

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the currency notes, he started drafting Ex.P11-Mediators Report and the DSP did not introduce them as mediator in this case.

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P.WS, who worked as Junior Assistant in the office of the MRO, Chapadu Mandal at the relevant point of time, deposed in his evidence that while he was working in Thonduru Mandal, he was transferred to Chapadu Mandal and joined in the said office on 01.11.1999 and he was allotted with ‘C’ seat and prior to that, the said seat was kept vacant. According to P.WS, normally^oneclerk would be placed additional charge of the ‘C’ seat and in the absence of such arrangement, upon the instruction of MRO, the Superintendent would attend the seat and in the absence of specific entrustment of the said seat to anyone, one key of the said almyrah of the seat would be available with the Superintendent^andthe another key is with the MRO. He further deposed that^hetook charge from the AO on 04.12.1999 and asked the MRO to arrange the handing over the charge of ‘C’ seat.

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P.WS further deposed in his chief-examination that^‘C’ seat consists of (1) Natural Calamities; (2) National Family Benefit Scheme; (S) Apadbandhu; (4) Births and Deaths; and, (5) All Certificates. According to him, when application is filed for pattadar pass book, it would go to the Superintendent, first^{andthenreferred}

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to ‘C’ seat and after process it would be sent to the^MROandthe MRO, in turn, would send the same to the Revenue Inspector.^He further deposed that he was not examined by the police in connection with the case. Apparently, P.W3 was declared^ashostile and nothing could be elicited in his cross-examination.

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P.W3, in his cross-examination conducted by the learned defence counsel, deposed that one has to make an application to the MRO for getting a pattadar pass^bookand title deed, and the MRO would forward the same to the concerned Revenue Inspector and after making an inquiry with^theVAOand after perusing the adangal and other records, the Rl would prepare the pass book and hand over the same to the MRO and after filling up l-A and l-B Registers and affixing photographs of the applicant in the registers and in the pass books, two sets of pass^{booksandtitle} deeds would be prepared and one set would be delivered^tothe party and the 2"*^ set would be sent to the RDO concerned.^He specifically deposed that the Superintendent, Junior^{Assistantofthe} ' MRO Office have no connection with regard to issuance of pattadar pass book.

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Though P.W3 was declared as hostile to the case of prosecution, a bare perusal of his evidence would disclose that

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When an application is filed for pattadar pass book, the Superintendent, would, at first attends and then refers to ‘C’ seat and after process, it would be sent to the MRO and the MRO, in turn, would send the same to the Revenue Inspector. He further deposed that he was not examined by the ACB Police in connection of this case.

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At the request of learned Special Public Prosecutor, P.W3 was declared as hostile and nothing could be elicited in his cross-examination. In the cross-examination conducted by the learned defence counsel, P.W3 deposed that a person,^whointends to get a pattadar pas book and title deed pass book,^hastomakean application to the MRO and the MRO forwards the same to the concerned Revenue Inspector and after making inquiry^with the VAO and after perusing the adangal and other records,^hewould prepare the pass book and hand over the same to the MRO. According to him, the Superintendent, Junior Assistant of the MRO Office has no connection when an application is presented^toissue pattadar pass book and title deed.

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A perusal of the evidence of P.W3 goes to show that the MRO has got authority to issue pattadar pass book basing on the inquiry conducted by the Revenue Inspector with the VAO and

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the AO, being the Superintendent has no authority to issue pattadar pass book.

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The evidence of P.Ws.2 and 3 does not incriminate anything against the accused officer with regard to the charges framed against him.

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The evidence of P.W4 is with regard to sanction order to prosecute the case against the accused officer.

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P.W5, worked as Deputy Superintendent of Police ACB, Tirupati Range at the relevant point of time, deposed about registration of Ex.P16-FIR based on Ex.P3-A, report, preparation of pre-trap proceedings, conducting of trap, seizure of tainted currency notes and conducting chemical test to both hand fingers^andinner linings of the pant backside pocket and preparation of post-trap proceedings. He also deposed about conducting of investigation and seizure of material objects. In the cross-examination^ofP.W5 to the question with regard to the amount not recovered^fromthe person of the accused officer, he deposed that the^{accusedofficer} stated that he received the amount and threw on the floor and at his instance the amount was recovered from the floor. He further deposed that he introduced himself to the accused officer^andafter

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that only, the accused officer picked out the currency^notesfromhis pocket and threw away the same on the floor. According to him, one M.V.S.Swamy, H.C.No.823 and L.W3/B.Chalapathi accompanied P.W1.

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P.W6, who worked as Inspector, ACB, Cuddapah, deposed that he assisted P.W5 in pre-trap and post-trap proceedings and during investigation, he examined L.W4/K.Abdul Haq and recorded his statement. He further deposed that after completion of investigation and on receipt of sanction order, he filed charge sheet. 31. In the cross-examination, P.W6 concedes that prior pattadar pass book and title deed pass book have to^besubmitted along with the application for mutation or for preparation^ofnew pattadar pass books or title deed. He further conceded in his crossexamination that on perusing the adangal and cultivation account, .which are available with the VAO, the application has to be processed.

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From the evidence of P.W6, Investigating Officer, it is clear that to issue pattadar pass book in favour of an applicant, it has to be processed on perusing the adangal, cultivation account.

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which are available with the VAO and further, the previous pattadar pass book and title deed stands in the name of the^vendorhaveto be submitted along with the application. Therefore, it can be safely concluded that the accused officer being the Superintendent^inthe office of the Mandal Revenue Office, is not the competent person to issue pattadar pass book. It is the MRO, on forwarding the application to the concerned Revenue Inspector, who in turn after making inquiry with the VAO, prepares pass book and^handover the same to the MRO.

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To prove the alleged demand by accused officer, the prosecution examined P.W1. He did not support the prosecution version as regards the demand and acceptance by the^accused officer. A perusal of the evidence of P.W1, it is clear^that he resiled from his earlier version. He is the decoy witness. In view of the said reason, prosecution declared him hostile. The evidence of other witnesses does not incriminate anything as against the accused officer as regards the alleged^demandfor doing official favour and acceptance of illegal gratification^other than legal remuneration by the accused officer.

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To attract the aforesaid offences, it is essential that

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there should be a demand and acceptance of the bribe by the Accused Officer. As on the date of alleged incident, it is essential that there should be a demand or acceptance of the bribe amount. There is no accompanying witness to show that there^is a demand by the accused officer.

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As per the defense theory, the accused officer got examined D.W1, Village Secretary, Chapadu, who deposed^inhis evidence that an application has to be presented to^theMROfor issuance of pattadar pass book and title deed and the MRO forwards the same to the Revenue Inspector, who in^turnwould come to the village and make inquiry and ascertain the particulars from the VAO and the VAO and Rl would prepare pass book and title deeds and send the same to the MRO for his signatures and after signatures, he would deliver the pass book and title deeds to the VAO for its delivery to the concerned party after obtaining signature in No. 17 Register. According to him, the Junior Assistant or the Superintendent has no authority to process the file. In the cross-examination, D.W1 deposed that after presentation of the application by the land owner^tothe

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MRO, number would be assigned to the said application^andhe does not know as to whether the Office Superintendent^would assign number to the application.

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Learned Special Public Prosecutor submits that though P.W1 did not support the case of prosecution,^demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence, and that from the circumstances^ofthe present case where recovery of tainted currency from the possession of the accused is established, coupled with^theother evidence, the prosecution is able to establish its case beyond all reasonable doubt by adducing circumstantial evidence;^thatthe 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,^andhence,he prays to dismiss the Criminal Appeal.

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In support of his contention, the learned Special Public Prosecutorappearing for ACB relied on a decision^ofthe

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Hon’ble Supreme Court in Neeraj Dutta v. State (Government^of

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NOT ofDelhi)\ wherein it is held thus: (paragraph 88)

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it88. What emerges from the aforesaid discussion is summarised as under:

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88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused,^the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter^of fact This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact In issue, namely, the proof^of demand and acceptance of illegal gratification can^alsobe proved by circumstantial evidence in the absence of^direct oral and documentary evidence.

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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) If there is an offer to pay by the bribe-giver^withoutthere 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,

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(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. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence^under Sections 13(1)(d)(i) and (Ii) of the Act.

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^ (2023) 4 see 731

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(Hi) In both cases of (i) and (ii) 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 7 of the Act, in order to bring home the offence, there must be an offer 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 (Ii) of the Act.

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88.5. (e) The presumption of fact with regard to the^demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only^when the foundational facts have been proved by relevant^oral and documentary evidence and not in the absence thereof On the basis of the material on record, the court has^the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence^of rebuttal presumption stands. 88.6. (f) In the event the complainant turns “hostile”,^orhas died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting^inthe evidence of any other witness who can again let in evidence, either orally or by documentary evidence^orthe prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

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88.7. (g) Insofar as Section 7 of the Act is concerned,^onthe proof of the facts in Issue, Section 20 mandates the^courtto raise a presumption that the illegal gratification^wasforthe purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the^court as a legal presumption or a presumption in law. Of^course, the said presumption Is also subject to rebuttal. Section²⁰ does not apply to Sections 13(1)(d)(i) and (ii) of^theAct.

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88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption^offact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. ”

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A perusal of the decision relied on by the learned Special Public Prosecutor in Neeraj Dutta v. State (Government of NOT of Delhi) (1 supra), the Hon’ble Apex Court categorically held that proof of demand and acceptance of illegal gratification by a public servant, as a fact in issue by the prosecution,^isasine qua non in order to establish the guilt of the accused public servant for the offences under Sections 7 and 13 (1) (d) (i) and (ii) of the Act. It is also held by the Hon’ble Apex^Courtthatthe prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. In the case on hand, there is no direct or circumstantial evidence to establish the demand of illegal gratification by the accused^{officer.Thereis} no accompanying witness along with P.W1. Even if the circumstances deposed by the other prosecution witnesses are accepted as true, they cannot establish beyond reasonable^doubt that the accused officer demanded bribe from P.W1 for issuance of pattadar pass book. In fact, as stated supra, from^theevidence

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.-S

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of P.W3 and D.W1, it is clear that it is the responsibility^ofthe Mandal Revenue Officer to issue pattadar pass book^andunder no circumstances, the accused officer, who is Superintendent has got authority to issue pattadar pass book to P.W1.^Therefore it is evident that the accused officer is not competent^todoofficial favour to P,W1.

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There is no evidence to prove the demand or acceptance of the tainted currency, by the accused officer. Further, even if recovery of tainted money from the^accused officer is accepted, mere recovery of money by itself may not be sufficient to show that the money was received as an illegal gratification by the accused officer from P.W1 for doing an official favour. The prosecution failed to prove the demand,^and in the absence of evidence to show that the money was paid as illegal gratification, mere recovery of money, is not sufficient^toconvict the accused officer of the offences punishable under^Sections7 ^ or 13 (2) read with 13(1) (d) of the PC Act, 1988.

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In P. Satyanarayana Murthy v. District Inspector of mere Police and Anr.^ the Hon’ble Apex Court held that,

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^(2015) 10 see 152

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possession and recovery of currency notes from an accused officer without proof of demand would not establish^Section7as well as Section 13 (1) (d) (i) & (ii) of the PC 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^7and 13 of the Act. Dealing with the same, the Court observed as under;

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"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^thereo,fde hors the proof of demand, ipso facto, would thus not^be sufficient to bring home the charge under these two^sections of the Act.

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As a corollary, failure of the prosecution to prove^thedemand for illegal gratification would be fatal and mere recovery^ofthe amount from the person accused of the offence under

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Sections 7 or 13 of the Act would not entail his conviction thereunder."

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The said principle was reiterated by the Hon’ble Apex

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Court in Mukhtiar Singh (since deceased) through his Legal Representative v. State of Punjab^, as under:-

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"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,^dehorsthe 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^demandfor illegal gratification would be fatal and mere recovery^ofthe amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."

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In C.M. Sharma v. State of Andhra Pradesh efc./the Hon’ble Apex Court held as under;

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“In support of the submission reliance has been placed^ona decision of this Court in the case of Panalal Damodar^Rathiu.

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^ (2017) 8 Supreme Court Cases 136

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''laws (SC) 2010 11 84

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State of Maharashtra (1987) Suppl. SCO 266 and our attention has been drawn to the following paragraph^ofthe judgment:

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“26. Therefore, the very foundation of the prosecution^caseis 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^atall made by the appellant for the bribe. When it is found^thatno such demand was made by the accused and the prosecution has given a false story in that regard, the court will^viewthe allegation of payment of the bribe to and recovery^{of thesame} from the accused with suspicion. ”

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In Sura] 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^theaccused 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.

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Another decision on which reliance is placed Is the^decisionof 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:

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“16. Indisputably, the demand of illegal gratification^isasine qua non for constitution of an offence under the provisions^of the Act. For arriving at the conclusion as to whether^allthe 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. ”

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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;

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"7. The law on the issue is well settled that demand of Illegal gratification Is sine qua non for constituting an offence^under the 1988 Act. Mere recovery of tainted money is not^sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily^as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence^with regard to demand and acceptance of the amount as illegal

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^2013(3) MLJ (Crl) 565

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gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section^20of the 1988 Act, by bringing on record evidence, either^director 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^courtis 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."

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In B.Jayaraj /s. State of Andhra Pradesh in CrI.A.No.696 of 2014 dated 28.03.2014, the Hon’ble Apex Court held at paragraphs 8 and 9 thus: “8. In the present case, the complainant did not support^the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove^that

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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^isthe 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 insofar as the offence under Sections 13(1){d)(i) and (ii) is 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^tobe established.

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Insofar as the presumption permissible to be drawn^under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and^notthe offences under Sections 13(1)(d)(1) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the^Act that such gratification was received for doing or forbearing^to

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do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the^same is lacking in the present case the primary facts on the^basisof which the legal presumption under Section 20 can be^drawn are wholly absent. ”

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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 establish by proper proof, the demand^and acceptance of illegal gratification. The Hon’ble Apex^Courtheld 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^Sections7 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^sufficientto bring home the charge under aforesaid two sections.

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In view of the aforesaid facts and settled proposition of law, it is unsafe to place an implicit reliance^{ontheevidence}

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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 PC Act, 1988 leveled against him.

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In view of the foregoing discussion, this Court no hesitation to hold that the prosecution failed to establish^itscase against the accused officer for the offences under^Sections7and 13 (1) (d) read with Section 13 (2) of the PC Act, 1988, beyond reasonable doubt, either by direct or by circumstantial evidence. and the accused officer is entitled to acquittal. The^{trialCourtdid} not consider these aspects in right perspective in passing the impugned judgment.

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In the result, the Criminal Appeal is allowed, setting aside the conviction and sentence recorded against the appellant/accused officer in the Judgment dated 01.09.2006 in Calendar Case No.20 of 2000 on the file of the learned Special ' Judge for S.P.E & A.C.B. Cases, Nellore. The appellant/accused officer is found not guilty of the offences punishable under Sections 7 and 13 (2) read with 13 (1) (d) of the Prevention^of Corruption Act, 1988 and is accordingly acquitted of^the said

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offences. Fine amounts, if any, paid by the appellant/accused

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officer shall be refunded to him.

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Consequently, miscellaneous petitions, if any, pending in

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this Criminal Appeal shall stand closed.