R.Kesavalu, (A1) Vs The State of A.P.

¶1

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

¶2

PRESENT

¶3

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

¶4

CRIMINAL APPEAL NO: 1318 OF 2007

¶5

Appeal under Section 374(2) of Cr.P.C against the Judgment^ofthe Special Judge for SPE & ACB Cases, Nellore in C.C.No.16 of 2003, dated 29.09.2007.

¶6

Between:

¶7

R.Kesavalu, (A1), S/o A.C.Ratnam, aged 60 years. Formerly Divisional Engineer Operations, A.P.S.P.D.C.L., Rajampet Division, Kadapa District. ...Appellant/Accused No.1

¶8

AND

¶9

The State of A.P.,, through the Inspector of Police, ACB, Kadapa District, Tirupati Range, rep. by its Spl. Public Prosecutor for ACB Cases, High Court of A.P., Amaravati.

¶10

...Respondent/ Complainant.

¶11

Counsel for the Appellant: SRI P.VEERA REY, SENIOR^COUNSEL

¶12

REPRESENTING SRI BUTTA VIJAYA BHASKER

¶13

Counsel for the Respondents: SRI C.PANINI SOMAYAJI,^ADDITIONAL

¶14

PUBLIC PROSECUTOR

¶15

The Court made the following:

¶16

APHC010052892007

¶17

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

¶18

[3327]

¶19

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

¶20

PRESENT

¶21

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

¶22

CRIMINAL APPEAL NO: 1318/2007

Between:

R.Kesavalu (A1)

...APPELLANT

AND

The State of AP

...RESPONDENT

Counsel for the Appellant:

¶30

BUTTA VIJAYA BHASKER

¶31

Counsel for the Respondent:

¶32

1. PUBLIC PROSECUTOR

¶33

The Court made the following;

¶34

2

¶35

HSRK, J Crl.A.No.1318of2007

¶36

JUDGMENT

¶37

Accused Officer No.1 (hereinafter referred to, as ‘A0.1’), in Calendar Case No. 16 of 2003 on the file of the Special Judge for SPE & ACB Cases, Nellore (for short ‘the Special Judge’),^filedthis appeal challenging the Judgment dated 29.09.2007, whereunder and whereby he was convicted of the offences punishable^under Sections 7 and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 (for brevity ‘the PC Act, 1988’)^andsentenced him to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs.3,000/- (Rupees three thousand only), in default, to suffer simple imprisonment for a period of three (03) months for the offence punishable under Section 7 of^thePCAct 1988 and also to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs.3,000/- (Rupees three^thousand only), in default, to suffer sirhple imprisonment for a period of three (03) months for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988. Both the^sentencesof imprisonment were directed to run concurrently. It^{isfurtherdirected} that M03 i.e. cash of Rs.6,000/-, be returned to P.WI-Yerramredd y Penchal Reddy, and MOs.1,2 and 4 to 8 be destroyed.^Thelearned Special Judge acquitted the accused No.2 (hereinafter referred to.

¶38

3

¶39

HSRK, J CriA.No.1318of2007

¶40

as ‘A2’) of the charge under Section 7 of the PC Act,^1988readwith 109 IPC in terms of Section 248 (1) of the Code of^Criminal Procedure, 1973 (for brevity ‘CrPC’).

¶41

Case of the prosecution, in brief, is that the A0.1 is working as Divisional Engineer, Operations in Andhra Pradesh Southern Power Distribution Company Limited (APSPDCL), Rajampet Division, Kadapa District; that the A2 is the Contract Labour in the office of the Divisional Engineer Operations, APSPDCL.

¶42

(b) D.W1 is the uncle of P.W1. D.W1 got contract works^of erection of additional transformers in Kalasapadu Section and erection of 11 KV Line from Varikunta village to Jyothi^andentered into an agreement with APSPDCL vide L.S. ACT 84/01-02 and L.S. ACT No.40/02-03: that due to preoccupation with other^contract works, D.W1 entrusted the above contract works to P.W1 and appointed him as his authorized agent and executed a Notary in respect of the above contract works to P.W1 in the presence of L.W5-Pradeep Kumar Pawar. Ex.P1 is the Notarized letter of authorization issued by D.W1 in favour of P.W1.

¶43

4

¶44

HSRK J CdA. No. 1318 of 2007

¶45

(C) That P.W1 completed the works in the month of July, 2002 and had to receive two bills of Rs. 1,97,027/-^ofnetamount and Rs.48,705/- of gross amount for the above two works.

¶46

(d) That ten days prior to 02.09.2002, P.W1 approached A0.1 and requested him to check measure the works executed by him and to pass the above bills; that the A0.1 demanded^P.W1 to pay illegal gratification of Rs. 10,000/- to do the official favour; that P.W1 expressed his inability to pay the bribe and went away; that on 27.08.2002, P.W1 again approached A0.1 and enquired^him about the two bills, but A0.1 reiterated his earlier^demand for payment of bribe. P.W1 expressed his inability to pay^thebribethat he has no money.

¶47

(e) That A0.1 informed P.W1 that he would pass the^billof Rs. 1,97,027/and issue cheque, and after encashment of the cheque, the bribe amount be paid to him; that accordingly,^A0.1 passed the bill and issued cheque to P.WI on the same day; that on 02.09.2002 P.WI approached A0.1 in his office and enquired about the remaining bill; that A0.1 reiterated his^{earlierdemandfor} payment of Rs. 10,000/- as bribe, and when P.WI expressed his inability to pay such huge amount, A0.1 reduced the^bribeamount from Rs. 10,000/- to Rs.6,000/- and asked P.WI to pay^thesamein

¶48

5

¶49

HSRK J Crl.A.No.1318of2007

¶50

the evening of 03.09.2002 at his residence at Rajampet to pass the bill and issue cheque; that P.W1, having no other go, accepted to pay the bribe to A0.1.

¶51

(f) P.W1, who was not willing to pay the bribe to A0.1 approached P.W6-Deputy Superintendent of Police, ACB, Tirupati Range, Tirupati and gave a report. Ex.P3 is the Report.^Onthe strength of Ex.P3, P.W6 registered a case in Crime^No.13/RCT- TCD/2002. EX.P17 is the original FIR. Pre-trap proceedings^took place in the office room of P.W6, on 03.09.2002 from^11.30a.m.to 1.30 p.m. in the presence of L.W2-J.Venkateswarlu, Assistant Executive Engineer, Public Health, Tirupati and P.W2, Junior Assistant, Office of the Executive Engineer, Public Health, Tirupati. Ex.P6 is the Mediators Report-1, dated 03.09.2002 at^11.30a.m. (g) On 03.09.2002 at 2.00 p.m. P.W6 along with P.W1, L.W2-J.Venkateswarlu, Assistant Executive Engineer and P.W2 and his staff left the office and reached Rajampet at 4.30 p.m; that P.W1 along with P.W2 went to residential house of A0.1,^P.W2was waiting outside and P.W1 entered into the house of A0.1; that on seeing P.W1, A0.1, being a public servant, demanded for illegal gratification and accepted the illegal gratification of Rs.6,000/- from P.W1 for doing official favour and asked P.W1 to come^tohisoffice

¶52

6

¶53

HSRK, J Crt.A.No.131Bof2007

¶54

on the next day; that P.W2, who was waiting at the^sitoutofthe house of A0.1, witnessed the conversation and transaction took place between P.W1 and AO.I; that P.W1 came out of^thehouse and gave prearranged signal and the trap party received the signal at 4.55 p.m. rushed into the house of AO.I; that AO. 1, who noticed the arrival of trap party, handed over the bribe to A2, who was present in the kitchen room; that A2, having knowledge^thatA0.1 received the amount towards bribe, received the same^fromA0.1. P.W6-Deputy Superintendent of Police subjected the fingers of both hands of A0.1 to the chemical test and the test yielded positive result: that P.W6, at the instance of A0.1, called A2, who was standing in the kitchen adjacent to the hall, found a wad of currency notes in the right hand palm fold; that at the request of P.W6, A2 handed over the wad of currency to P.W2: that P.W6 subjected both the hand fingers of A2 to the chemical test and the test yielded positive result; that P.W6, when compared the numerical^numbers of the M.03-Currency Notes with that of the numbers already recorded in the pre-trap proceedings, found that they were tallied; that P.W6 seized the above currency notes; that the entire proceedings were drafted at the residential house of^A0.1 at

¶55

7

¶56

HSRK, J Cri.A.No.1318 of 2007

¶57

Rajampet. Ex.P8 is the Mediators Report-2, dated 03.09.2002 5.00 p.m.

¶58

at

¶59

(h) L.W12-M.Kullayappa, Personal Officer, APSPDCL, Tirupati issued proceedings vide No.CMD/CGM/HRD/DS/AS.III/ PO(DC)/D.No-/03, dt. 13.05.2003. Ex.P19 is the Sanction Order. After conducting investigation and receipt of Ex.PI 9-sanction, a charge sheet was filed for the offences punishable^{underSections} 7, 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 against the appellant/accused officer No.1 and A2. Hence, the Charge Sheet.

¶60

The learned Special Judge took cognizance of the offences under Sections 7 and 13 (2) read with 13 (1) (d) of the PC Act, 1988 against the appellant/AO. 1 and Section 7 of the PC Act, 1988 read with Section 109 of the Indian Penal Code, 1860 (for brevity ‘IPC’) against A2. After furnishing copies of documents, charges for the aforesaid offences were framed against the appellant/AO. 1 and A2, and read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.

¶61

In order to prove its case, prosecution examined PWs.1 to 8 and marked Exs.P1 to P9: P10, PI0(A) to P11 and PI 1(A): PI 2 to PI 9 and MOs.1 to 8.

¶62

8 HSRK, J Crl.A.No.1318of2007

¶63

After closure of the prosecution side evidence, the appellant/AO. 1 and A2 were examined under Section^313CrPCto explain the incriminating circumstances appearing against^them in the evidence of prosecution witnesses. They denied^thesameand got examined the uncle of P.W1 as D.W1 and through him, Ex.DI was marked, which is relevant portion of the statement^ofP.W1 recorded under Section 164 CrPC. A0.1 and A2 filed their statements under Section 313 CrPC, denying the alleged^demand and acceptance of tainted amount as bribe and stated^asfollows:

¶64

“A0.1 never demanded any bribe from P.W1 and that, P.W1 is only Supervisor of D.W1 and he has nothing^todowith the bills of the works. P.W1 was not doing works properly^as per the specifications, he quarreled with P.W1, and^tookthe same to the notice of D.W1 and that, D.W1 chastised^P.W1 in the presence of A0.1 and workers, and at that time, P.W1 revolted against A0.1. Due to that incident, P.W1 bore grudge against A0.1 and gave a false report, and implicated^A0.1 in this case. As per A0.1, on the date of trap, when P.W1^wentto A0.1, he questioned P.W1, the purpose of his visit and^then, P.W1 tried to keep the amount in the hands of A0.1,^butA0.1 pushed them and refused to receive the same. Then, P.W1 kept the amount on a tea-poi and returned. Thereafter,^A0.1 even though called, P.W1 did not return. Then, A0.1 gave that amount to A2 and told A2 to return the amount to P.W1,^butin the meanwhile, the ACB Officials came there."

¶65

9

¶66

HSRK, J Crl.A.No.1318of2007

¶67

“A2 stated that he was nothing to do with the transaction between P.W1 and A01, and he was not aware that the said amount is bribe amount. For prosecuting a public servant, the competent authority has to issue sanction^order under Section 19 of the PC Act.”

¶68

The learned Special Judge acquitted A2 of the charge under Section 7 of the PC Act, 1988 read with Section 109 IPC, in terms of Section 248 (1) CrPC. The learned Special Judge convicted the appellant/AO. 1 of the charges under^Sections7and 13 (2) read with 13 (1) (d) of the PC Act, 1988 in^{termsofSection} 248 (2) CrPC and sentenced him, as stated supra. Challenging^the same, the present Criminal Appeal has been preferred by the appellant/AO.1.

¶69

Sri P.Veera Reddy, learned senior counsel appearing on behalf of Sri Butta Vijaya Bhasker, learned counsel for the appellant/AO. 1 submitted that there is inconsistency^intheversion of PWs.1 and 2 and hence, much credence cannot be given^totheir evidence. He further contended that though P.WI set^thecriminal law into motion, he is only a Supervisor and the actual^contractoris D.W1, who executed the work, by giving authorization^toP.WI to attend the works on his behalf. The entire evidence of P.WI was brushed aside by the evidence of D.W1 and therefore,^theevidence

¶70

10

¶71

HSRK, J Crl.A.No.1318 of 2007

¶72

of P.W1 is not reliable and trustworthy to convict^{A.01.Hefurther} contended that the witness has made two inconsistent statements in his evidence and by virtue of the same, no conviction^canbe passed. The proceedings, issued by the Chairman and Managing Director of APSPDCL, Tirupati, according sanction for prosecution of the appellant/AO. 1, are not a valid one. It is^{furthercontended} that the appellant/AO. 1 is not wholly capable of doing any official favour for PW.1 and when such is the case, the appellant/AO.¹ demanding the bribe from PW.1 would not arise and these aspects have not been considered by the learned Special Judge in right perspective, and as such, prayed for acquittal of the appellant/AO. 1.

¶73

Sri C.Panini Somayaji, learned Additional Public Prosecutor for respondent-ACB submits that the appellant/AO.¹ was a Public Servant as defined under Section 2 (c) of the PC Act, 1988. The evidence of P.W.7, coupled with Ex.PI 9-Sanction Order, establishes that the competent authority issued sanction to prosecute the appellant/AO. 1. He strenuously contended^thatthe evidence of PW.3 is reliable, though he was declared^ashostilein some aspects. According to him, simply because a witness^was declared hostile, his entire evidence cannot be brushed aside, but such part of his testimony which inspires confidence,^canbetaken

¶74

11

¶75

HSRK, J Cn.A.No.1318of2007

¶76

into consideration. He further contended that on a perusal of the chief examination of PW.1, it is quite evident that^{thereisademand} made by the appellant/A01 and tainted amount was recovered^from A2 and as such, the demand and acceptance are established beyond reasonable doubt. He further submits that the learned Special Judge, upon considering the evidence on record in right perspective, found the appellant/AO. 1 guilty of the offences, with which, he was charged and accordingly, rightly convicted and sentenced him, and there are no grounds to interfere with the

¶77

impugned judgment.

¶78

Now the point for consideration is-

¶79

“Whether the prosecution has proved its case against the appellant/AO. 1 for the charges leveled against him i.e. Sections 7, 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988, beyond reasonable doubt, and whether the Judgment of the trial Court is legal, correct and proper?

¶80

In order to attract an offence under Section 7 of the PC Act, 1988, the necessary ingredients to be established^arethatthe A0.1 is a public servant and that 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,

¶81

12

¶82

HSRK, J Crl.A.No.1318of2007

¶83

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.

¶84

A0.1 was working as Divisional Engineer, Operations, APSPDCL, Rajampet Division, Kadapa District at the relevant point of time of the incident. There is no dispute that he was a public servant within the meaning of Section 2 (c) of the PC Act, 1988.

¶85

P.W.1, who set the criminal law into motion by lodging Ex.P3-report, deposed in his evidence that D.W1 got^contractwork of erection of additional transformers in Kalasapadu^Sectionand erection of 11 K.V. Line from Varikunta to Jyothi in the year 2002 and as D.W1 was busy, he was given authorization under^Ex.P1- Notarized Letter of authorization. His evidence is further to the effect that he invested capital and completed the works^andhehas to receive two bills i.e. Rs. 1,97,027/- and Rs.47,705/-, respectively for the above said two works.

¶86

With regard to demand and acceptance of illegal gratification, the evidence of P.W1 is to the effect that he approached A0.1 in the month of July, 2002 and A0.1^demandeda

¶87

13

¶88

HSRK, J Crl.A.No.1318of2007

¶89

sum of Rs. 10,000/- towards bribe and he was threatened that unless he pays the bribe amount, A0.1 would not check^measure and issue cheques; that on 27.08.2002, when he again approached A0.1 and enquired about the bill, he was issued a cheque for Rs. 1,97,027/- and told to encash the cheque and pay^the bribe amount of Rs. 10,000/-; that on 02.09.2002 he approached^A0.1for 2'^^ cheque, at that time, A0.1 stated that unless P.W1 pays bribe of Rs. 10,000/-, he would not give the cheque for 2"*^ work; that when P.W1 expressed his inability, A0.1 reduced the bribe^amount to Rs.6,000/- and asked him to pay the same by the evening of 03.09.2002 at his residence at Rajampet. P.W1 further deposed that he informed the same to D.W1, who in turn advised^P.W1 to approach the ACB DSP, Tirupati; that subsequent to pre-trap proceedings, P.W1 went to the house of A0.1 and enquired^him about the bill; that A0.1 demanded P.W1 to pay Rs.6,000/-^asbribe and that A0.1 would issue cheque only on payment of^bribe. 14. P.W1 further deposed that he reported the matter to ACB Officials under Ex.P3 and handed over the file containing the work orders to the ACB Officials. He further deposed that after pre trap proceedings on 03.09.2002 at 11.00 a.m. he went^tothehouse of A0.1 at 4.30 p.m. and enquired him about the bill^andhewas

¶90

14

¶91

HSRK, J Crl.A.No.1318of2007

¶92

demanded to pay Rs.6,000/- as bribe. He further deposed that^ A0.1 stated that he would issue cheque only on payment^ofbribeof Rs.6,000/-; that P.W1 gave the tainted amount to A0.1,^whointurn counted the same and kept the same in his left hand; that on giving pre-arranged signal by P.W1, the DSP and other raid party caught the AO. 1 red-handedly.

¶93

In the cross-examination of P.W1, it is elicited that^he did not state either in Ex.PS or in the statements recorded under Section 161 or in Section 164 CrPC that he was doing^sub-contract works in Electricity Department and that he invested capital for doing the above works; that he did not file proof to prove that he invested his amount. He further deposed that in Ex.PS-Report^he did not state that on the date of trap, he telephoned^toD.W1andhe advised him to approach ACB at Tirupati. P.W1 further deposed that the cheque for Rs.1,97,027/- was issued in the^nameofD.W1 and it was received from L.W8-K.Vijayendra Rao, UDC,^Cashierin the APSPDCL Office. P.W1 concedes that A0.1 did not agree even if there was slight deviation in the works.

¶94

P.W1 further deposed in his cross-examination that^he did not state in his statement recorded under Section 164 CrPC that he enquired about his bills at the house of A0.1. He^deniedthe

¶95

15

¶96

HSRK, J Crl.A.No.1318 of 2007

¶97

suggestion that he went to A0.1 and when A0.1 questioned^the purpose of his visit, he tried to keep the amount in^thehandsof A0.1 and when A0.1 refused to receive the same, he kept the amount on the T-Poi and left the place without turning though A0.1 was calling and that, A0.1 gave that amount to A2 to^returnthe same to P.W1. He deposed that he never met A2 and he is not concerned with his contract works.

¶98

The evidence of P.W2, Junior Assistant in the office of the Executive Engineer, Public Health Department, Tirupati, is to the effect that he acted as mediator to the trap proceedings. His evidence discloses the procedure followed by them on^thedateof the trap conducted by the ACB officials.

¶99

Though, P.W3, Assistant Divisional Engineer (Operations), APSPDCL, Vempalli, Kadapa District, is^declaredas hostile to the prosecution case, his relevant evidence^{istotheeffect} that D.W1 appointed P.W1 and one Venugopala Reddy as Supervisors of works of electrification and erection of distribution of transformers: that P.W3 was the check measurement authority^for the aforesaid works; that the Additional Assistant Engineer recorded the measurements in M-Book and he check measured them by 03.05.2002 in Ex.P11/M-Book in page Nos.2 to 27 relating^to2 nd

¶100

16

¶101

HSRK, J Cn.A.No.1318 of 2007

¶102

work. He further deposed that he endorsed the check^measurement in page No.27 of Ex.P11 and thereafter, bills were prepared by the Additional Assistant Engineer and he countersigned^{theEx.P10-biil} and submitted the bills to the Office of A0.1.

¶103

In the cross-examination of P.W3, he deposed that they were not concerned with the factum of how many Supervisors were appointed to execute the works; that D.W1 can^authorizehis representatives to receive the cheques; that when he^went for check measurement, D.W1 was present, but P.W1 was not present. He concedes that they would give top priority to the^workdonewith the amounts contributed by consumer or MP Lad Funds and they pass bills immediately after completion of the works.^Heconcedes that as per Ex.PII/M-Book, by 03.09.2002, check measurement was done by A0.1.

¶104

In the cross-examination of P.W3 made by the learned Special Public Prosecutor, it is elicited that only after check measurement the bill will be prepared by the Section Officer; that check measurement can be done even during the work^was in progress; that after the check measurement the bill will be prepared by the Additional Assistant Engineer and the DE has to make pass order on the bill.

¶105

17

¶106

HSRK, J Crl.A.No.1318 of 2007

¶107

The evidence of P.W4/Record Assistant, P.W5/ Divisional Engineer, Operations, of APSPDCL runs on the line of directions with regard to inward tappal, agreement^withP.W1 for providing contract labour for watch and ward of Divisional Office. Further, the evidence of P.W6/Deputy Superintendent^ofPolice is with regard to pre-trap proceedings conducted by him^and with regard to investigation.

¶108

P.W7, Personal Officer in the office of Chairman and Managing Director of APSPDCL, Tirupati. He deposed in his evidence that he brought the file under which sanction orders were issued to prosecute A0.1. In the cross-examination, he deposed that by the time of issuing Ex.PI 9-Sanction Order, he was not working in that section and he never dealt with the file under which Ex.P19 was issued.

¶109

P.W8, Inspector of Police, ACB, Kadapa deposed in his chief-examination that he assisted P.W6 in pre-trap and trap proceedings and he took up investigation in this case, examined the mediators and recorded their statements; that after completion of investigation, he filed Final Report No.1 to D.G, ACB, Hyderabad for obtaining sanction orders from the Government and after receipt of sanction order, he filed charge sheet. In the cross-examinati^on

¶110

18

¶111

HSRK, J Crl.A.No.13iaof2007

¶112

formal suggestions were put-forth by the learned defence^counsel and they were denied by P.W8.

¶113

The Accused Officer No.1 got examined D.W1 on his behalf, who is the Class-I Contractor. He deposed in his chiefexamination that he knows A0.1 and during his tenure^hedid18 works and received bills worth of Rs.5.00 lakhs; that he got two contract works (1) erection of 11 K.V. Line from Varikuntapadu^to Jyothi village of Kasinayana Mandal and (2) erection^ofadditional transformers in Balayapalli, Nayanapalli, Ganganapalli, Narasapuram and Gontuvaripalli villages; that he kept^P.W1andhis brother-in-law viz. Venugopala Reddy, as Supervisors for those works and they have nothing to do with the investment,^incomeand loss and they were only salaried employees. His evidence^isfurther to the effect that in the year 2002, prior to May, at one time, A0.1 complained that P.W1 was not supervising properly and not doing the works as per the specifications and that he admonished^P.W1 and when P.W1 revolted against A0.1, D.W1 chastised^P.W1.He further deposed that he never told P.W1 to pursue the^billseither with A0.1 or with other officials; that he did not^instructP.W1 to approach ACB, when he complained that A0.1 was demanding bribe for passing the bills; that on 27.08.2002 he^{wasinformedthat}

¶114

19

¶115

HSRK, J Crl.A.No.1318 of 2007

¶116

the bill relating to the work was ready and asked him^totakethe cheque; that 2"^ work agreement was completed in the^monthof May, 2002 even prior to giving Ex.P1-report and he signed on EX.P11 at the time of taking measurements of 2"^^ work; that on 04.09.2002 through Newspaper he learnt about the trap^ofA0.1 and he admonished P.W1 and removed him from the service.

¶117

In the cross-examination of D.W1 he deposed that in Ex.P1 it is stated that as he was busy in other works,^heauthorized P.W1 and other to deal with all other financial matters pertaining to the work and also related bills. Though, the learned Special Public Prosecutor cross-examined D.W1 at length, he put-forth only suggestions, which are duly denied by D.W1.

¶118

A perusal of entire evidence on record goes to show that as per Ex.P1 coupled with the evidence of D.W1^andP.W1 D.W1 authorized P.W1 on his behalf to execute the work erection of 11 KV Line from Vorikunta village to Jyothi and also^erection of additional transformers at Balayalapalli, Nayanapalli, Narasapuram Gontuvaripalli and Ganganapalli, which are entrusted^tohim vide Agreement LS Agt. No.40/02-03, 84/01-02, as he was busy. engaged with other works and the authorization given^toP.W1 is to look after the progress of the aforesaid works and^dealwith all the

¶119

20

¶120

HSRK, J Cn.A.No.1318of2007

¶121

financial matters pertaining to the work and also related expenses to the concerned.

¶122

A perusal of evidence of P.W1, goes to show that he invested capital and completed the works and he has^toreceivetwo bills for a sum of Rs.1,97,027/and Rs.47,705/-, and after completion of the works, he met A0.1 in the month of July, 2002 and A0.1 demanded Rs. 10,000/- as bribe and stated^tohim that unless he pays the bribe amount, he would not check^measureand not issue the cheques. But, a perusal of evidence of^P.WI further discloses that when he approached A0.1 on 27.08.2002,^hewas issued a cheque for a sum of Rs.1,97,027/- and he was^informedto encash the cheque and pay the bribe amount as demanded by A0.1. P.WI complained to the ACB Officials, subsequent^to his approach to A0.1 on 02.09.2002, on which date, P.WI was demanded to pay bribe amount of Rs.6,000/- for issuing cheque for 2"^ work.

¶123

Indisputably, P.WI is not the contractor, who obtained the works from the APSPDCL and he fairly deposed that no proof is filed to prove that he invested amount. There is no other documentary proof that P.WI approached A0.1 in the^month of July, 2002, on 27.08.2002 and 02.09.2002 and on those^datesA0.1

¶124

21

¶125

HSRK, J Crl.A.No.1318of2007

¶126

demanded bribe of Rs. 10,000/-. Even P.W1 fairly deposed^thatin his evidence with regard to he telephoning to D.W1 and he instructed him to approach the ACB at Tirupati, as^{notcorrect.At} one point of time, he deposed that he telephoned to^D.W1andon his advice, he approached the ACB officials and at another stage, he deposed that he would have approached the ACB Officials,^even if D.W1 did not advice him. But, surprisingly, as referred above, he denied the statement that he telephoned D.W1 and he^instructed him to approach the ACB at Tirupathi, as not correct,^whichthrows any amount of ambiguity over the evidence of P.W1.

¶127

A perusal of evidence of D.W1 goes to show that^heis the actual contractor, who authorized P.W1 to supervise the contract works, and he got executed the said contract works, as per the agreement, through P.W1 and another viz. Venugopala Reddy. His evidence further discloses that A0.1 complained D.W1 that P.W1 was not supervising properly and was not doing^theworkas per the specifications and on that, D.W1 admonished P.W1 and when P.W1 revolted against AO.1, he chastised P.W1 and pacified the matter. The evidence of D.W1 further discloses that he was personally looking after the bills and on 27.08.2002 he was informed by the office, to collect the cheque agreement^No.40and

¶128

22

¶129

HSRK, J Crt.A.No.131B of 2007

¶130

upon his direction, P.W1 received the cheque on behalf^ofD.W1. Therefore, the evidence of D.W1 clearly discloses that^there is no demand of illegal gratification by A0.1 as alleged by P.W1 for issuing the cheques. Indeed, D.W1 learnt about the trap on 04.09.2002 through a newspaper and on that, he admonished^P.W1 and removed him from the service, which clearly discloses that there is no occasion to P.W1 complaining D.W1 against^AO.1about the alleged demand of illegal gratification and in turn, D.W1 had not instructed or advised P.W1 to approach the ACB Officials to complain against A0.1. Nothing material is elicited in the crossexamination of D.W1 in support of version of P.W1.

¶131

A perusal of evidence of D.W1 further goes to show that he worked for 18 contract works during the tenure^ofA0.1and he received bills worth of Rs.5.00 lakhs and he never complained about the demand of illegal gratification by A0.1.^Indeed, it is the evidence of D.W1 that there is no grievance to him^withA0.1and as per his own evidence, A0.1 does not agree even if there is any slight deviation in the works. Even P.W1 too admitted^thesaidfact in his cross-examination, which throws any amount of ambiguity in the case of prosecution.

¶132

23

¶133

HSRK, J Crl.A.No.1318of2007

¶134

Learned counsel for the appellant/AO. 1 would contend

¶135

that the prosecution failed to prove the demand and acceptance of illegal gratification of appellant/AO. 1 either by^{directevidence} i.e. oral evidence or documentary evidence, or by circumstantial evidence and the evidence of P.W1 does not inspire^confidence and the same cannot be the sole basis for conviction. He placed strong reliance on the proposition of law laid down in Neeraj Dutta vs. State (Government of NCT of Delhi)\ wherein the^Hon’ble Apex Court at paragraph No.88 held as under:

¶136

What emerges from the aforesaid discussion is summarised as under:

¶137

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)(/) and (/7) of the Act.

¶138

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^inissuecanbe proved either by direct evidence which can be in the^natureoforal evidence or documentary evidence.

¶139

88.3. (c) Further, the fact in issue, namely, the proof^ofdemand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely,^thedemand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind;

¶140

(2023) 4 Supreme Court Cases 731.

¶141

HSRK, J Cn.A.No.1318of2007

¶142

24

¶143

(/) 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.

¶144

(/7) On the other hand, if the public servant makes^ademand and the bribe-giver accepts the demand and tenders^thedemanded 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^{isanoffenceunder} Sections 13(1)(c0(/) and (//) of the Act.

¶145

{Hi) In both cases of (/) and (//) above, the offer by the bribe giver and the demand by the public servant respectively^haveto 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)(;) and (/■/), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer^{whichemanates} from the bribe-giver which is accepted by the public^servantwhich 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^{beanoffenceof} obtainment under Sections 13(1)(d)(/) and (/;) of the^Act.

¶146

88.5. (e) The presumption of fact with regard to the^demandand 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^andnot 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^ornot. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

¶147

88.6. (f) In the event the complainant turns “hostile”,^orhasdied or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary

¶148

25

¶149

HSRK, J CriA.N0.1318 of 2007

¶150

evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned,^onthe proof of the facts in issue, Section 20 mandates the^court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject^{torebuttal.Section} 20 does not apply to Sections 13(1)(d)(/) and (//)^oftheAct. 88.8. {h) We clarify that the presumption in law under^Section 20 of the Act is distinct from presumption of fact^{referredtoabove} in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

¶151

In the appeal on hand, except the evidence of P.W1 there is no evidence let in by the prosecution, either oral or documentary, to prove the demand of illegal gratification. The evidence of P.W1 itself revealed that A0.1 does not agree even if there was slight deviation in the works, which is also^{substantiated} by the evidence of D.W1, who is the actual contractor. The evidence of other witnesses does not incriminate anything as against the appellant/AO. 1 as regards the alleged^demandfor doing official favour and acceptance of illegal gratification^other than legal remuneration by the appellant/AO. 1.

¶152

To attract the aforesaid offences, it is essential^that there should be a demand and acceptance of the bribe by the

¶153

26

¶154

HSRK, J Crl.A.No.1318of2007

¶155

appellant/AO. 1. As on the date of alleged incident, it is essential that there should be a demand or acceptance of the bribe amount. Admittedly, even according to P.W1, A0.1 does not agree even if there are slight deviations in the works. According to D.W1, who is the original contractor and who appointed^P.W1 to supervise the contract works, A0.1 complained him^thatP.W1 was not supervising the works properly and was not doing the work as per the specifications. According to D.W1, he also admonished P.W1 and chastised him when he revolted against A0.1 and pacified the matter. A close perusal of evidence^of D.W1 goes to show that he has no grievance against^A0.1with regard to check measuring the works or with regard to any of the works in the hands of A0.1. It is also clear from his evidence that after coming to know about the trap incident, D.W1 removed P.W1 as Supervisor. Therefore, from the aforesaid circumstances, this Court is of the opinion that P.W1 has chequered history and his evidence cannot be placed in the category of wholly reliable. Admittedly, there is no^{corroboration} to the evidence of P.W1 with regard to the alleged^demand of illegal gratification, or acceptance thereof, by A0.1.

¶156

27

¶157

HSRK, J Cn.A.No.1318 of 2007

¶158

The only other circumstance available is the recovery of the tainted currency notes from the possession of the appellant/AO. 1. It is settled that mere possession and recovery of the currency notes from the appellant/ A0.1 without proof of demand will not bring home the offence under Section^7ofthe PC Act, 1988. Further, even if recovery of tainted money from the appellant/AO. 1 is accepted, mere recovery of money by itself may not be sufficient to show that the money was received^asan illegal gratification by the appellant/AO.I from P.W1 fordoing 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^sufficientto convict the accused officer of the offences punishable^under Sections 7 and 13 (2) read with 13(1)(d) of the PC Act, 1988.

¶159

In P. Satyanarayana Murthy v. District Inspector of Police and Anr.^ the Hon’ble Apex Court held that, mere possession and recovery of currency notes from an accused officer without proof of demand would not establish^Section7as well as Section 13(1)(d)(i) & (ii) of the Act, 1988. It has been

¶160

^(2015) 10 see 152

¶161

28

¶162

HSRK, J Cn.A.N0.1318 of 2007

¶163

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

¶164

under:

¶165

"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^{Actandinabsence} 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^thusnotbe sufifcient to bring home the charge under these two^{sectionsof theAct.}

¶166

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the^{amountfromthe} person accused of the offence under Sections 7 or 13^{oftheActwould} not entail his conviction thereunder."

¶167

The said principle was reiterated by the Hon’ble Apex Court in Mukhtiar Singh (since deceased) through his Legai Representative v. State of Punjab^, as under:-

¶168

^ (2017) 8 Supreme Court Cases 136

¶169

29

¶170

HSRK, J ■ Crl.A.No.1318of2007

¶171

"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)^{oftheActandin} 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^{twosectionsof} the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery^oftheamount from the person accused of the offence under Sections^7and13ofthe Act would not entail his conviction thereunder."

¶172

37. In C.M. Sharma v. State of Andhra Pradesh etc.,"* the

¶173

Hon’ble Apex Court held as under:

¶174

“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^hasbeendrawn to the following paragraph of the judgment:

¶175

“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^beconsidered along with other material circumstances one of which is the question whether any demand was at all made by the appellant^forthebribe. When it is found that no such demand was made by the^accusedand the prosecution has given a false story in that regard,^{thecourtwillview} the allegation of payment of the bribe to and recovery^{ofthesamefrom} the accused with suspicion. ”

¶176

In Sura] Mai v. State (Delhi Admn.), (1979) 4 SCC 725^this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the

¶177

^LAWS (SC) 2010 11 84

¶178

30

¶179

HSRK, J Crl.A.N0.1318 of 2007

¶180

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.

¶181

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 SCO 200 in which it has been^heldas : “16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions^oftheAct For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not the court must take into consideration the facts and circumstances brought on^{therecordintheir} entirety. ”

¶182

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:

¶183

"7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence^underthe1988 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

¶184

® 2013(3) MU (CrI) 565

¶185

31

¶186

HSRK, J Crl.A.No.1318of2007

¶187

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,^toestablish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and^noton the touchstone of proof beyond all reasonable doubt. However,^beforethe 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^mustbetested 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."

¶188

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 the PC Act, 1988 and in^theabsence thereof, unmistakably the charge, therefore, would fail. The

¶189

32

¶190

HSRK, J Crl.A.No.1318of2007

¶191

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^thusnotbe sufficient to bring home the charge under aforesaid^twosections. The trial Court did not consider these aspects in right perspective in passing the impugned judgment.

¶192

In view of the aforesaid facts and settled proposition of law, it is unsafe to place an implicit reliance^{ontheevidence} adduced by the prosecution for convicting the appellant/A01. There is no legal evidence to find the appellant/AO. 1 guilty of the charges under Sections 7 and 13 (2) read with 13 (1) (d) of the PC Act, 1988 leveled against him.

¶193

In view of the foregoing discussion, this Court has no hesitation to hold that the prosecution failed to^establish its case against the appellant/AO. 1 for the offences under^Sections 7 and 13 (2) read with 13 (1) (d) of the Act, 1988, beyond reasonable doubt, and the appellant/AO. 1 is entitled to acquittal.

¶194

In the result, the Criminal Appeal is allowed, setting aside the conviction and sentence recorded against the

¶195

33

¶196

HSRK, J Crl.A.No.1318of2007

¶197

appellant/AO. 1 in the Judgment dated 29.09.2007 in Calendar Case No. 16 of 2003 on the file of the Special Judge^forSPE& ACB Cases, Nellore. The appellant/AO. 1 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 offences. Fine amounts, if any, paid by the

¶198

appellant/AO. 1 shall be refunded to him.

¶199

Consequently, miscellaneous petitions, if any, pending in

¶200

this Criminal Appeal shall stand closed.

¶201

Sd/- S.V.S.R. MURTHY JOINT REGISTRAR.^

¶202

//TRUE COPY//

¶203

SECTION OFFICER