B. Satyanarayana Vs State of A.P.

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APHC010126592009

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ifHffiS IN THE HIGH COURT OF ANDHRA PRADESH 0;? AT AMARAVATI

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-o
TUESDAY,THE EIGHTH DAY OF JULY ^/m
73
Jb»
TWO THOUSAND AND TWENTY FIVE |o ^

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PRESENT

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honourable SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL N0.666 of 2009

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Appeal under Section 374(2) of Cr.P.C, Aggrieved by the convicting Judgment, and sentences passed by the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. dated 9-6-2009 in CC No. 26 of 2004.

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Between:

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B. Satyanarayana, S/o. B. Narsimulu, Occ. Mandal Revenue Inspector II, MRO Office, Aspari of Kurnool District. R/o. H.No. 49-1A-153, M.S. Nagar, Kurnool.

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...Appellant/Accused o.. . and State of A.P., Rep. by Inspector of Police Anti Corruption Bureau, Kurnool Range, Kurnool. Rep. by Special Public Prosecutor for ACB Cases High Court, Amaravati.

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...Respondent/Complainant Counsel for the Petitioner Sri A Hariprasad Reddy Counsel for the Respondent : Sri S.Syam Sunder Rao (SC cum Special Public Prosecutor for ACB)

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The Court made the following order:

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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY

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CRIMINAL APPEAL No.666 OF 2009

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JUDGMENT:

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This Criminal Appeal has been preferred against the judgment, dated 09.06.2009 passed in C.C.No.26 of 2004 by the learned Additional Special Judge for SPE & ACB Cases, Hyderabad.

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Sole accused officer is the appellant herein. He was^tried for the offences punishable under Sections 7 and 13(1)(d)^read with 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’). By his judgment, dated 09.06.2009, the learned Special Judge found the accused officer guilty of the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act and, accordingly, convicted him of the said offences and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.500/in default to suffer simple imprisonment for one month for the offence punishable^under Section 7 of the Act, and to undergo rigorous imprisonment^fora period of one year and also to pay fine of Rs.500/-^indefaultto suffer simple imprisonment for one month. Both the sentences of

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imprisonment were directed to run concurrently. The remand period underwent by the accused officer during investigation^and trial, if any. is ordered to be given set off under Section 428 Cr.P.C.

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Case of the prosecution, in brief, is that PW1 is a resident of Yatakallu Village of Aspari Mandal. Prior to 16.12.2003 hut bearing No. 1-5 of PW1 was burnt in a fire accident and he intended to construct a house with the Government aid and approached PW4-Village Secretary of Yatakal Village on 28.11.2003 to recommend PW3-MRO for issuance of feasibility certificate, wherein a letter was issued by PW4 under Ex.P8, upon which. PW1 approached PW3-MRO. who endorsed the same to AO as Mandal Revenue Inspector, for enquiry and report. On 15.12.2003, PW1 met AO and when enquired,^AO demanded bribe of Rs.4000/- and after much pleading,^the same was reduced to Rs.2000/- and PW1 was asked to bring the amount. Unwilling to pay the demanded bride amount to AO, PW1 orally informed to PW7-DSP ACB, Kurnool on 16.12.2003 in the evening hours, who reduced the same into writing^andafter causing enquiries, registered a case in Cr.No.12/RCT-KUR/2003

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under Section 7 of the Act on 18.12.2003 and proposed to lay a trap. Pursuant to the trap organised, PW7 DSP ACB secured^the presence of PW2 Industrial Promotion Officer, Kurnool^andother officials of the same department, and as earlier directed,^PW1 presented himself before PW7 and was introduced to the mediators PW2 and other, and the mediators having enquired with PW1 about the contents of the complaint, after PW1 having accepted, in token thereof, mediators attested the copy of the complaint and after PW1 produced the proposed bribe^amountof Rs.2000/-, mediators noted down the numbers of the notes and denomination in pre trap proceedings. On the date of trap on 18.12.2003, the trap party proceeded to the office^of AO^and in the afternoon, after 1.45 p.m., PW1 entered into the^officeof AO and around 2.00 p.m., PW1 came out and informed that AO is engaged with some other persons and was asked to come^after half an hour. PW1 entered into the office of MRO and after five minutes, PW1 came out and conveyed the pre-arranged signal, which led the trap party into action. It is further alleged that after trap party entered into the office, they found that^AOwasinthe chamber of MRO, and after AO is identified, the DSP ACB introduced himself and after ascertaining particulars of AO,

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immediately DSP got prepared Sodium Carbonate solution in two glass tumblers and when AO rinsed his both hand fingers separately, both the solutions turned into pink colour. Thereupon, when PW7 DSP ACB questioned AO about receipt of the amount from PW1, AO took out the amount from his right side pant pocket and when the mediators verified, they found the denomination and numbers of the said currency notes tallied with that of the numbers and denomination mentioned in pre trap proceedings and same was incorporated in post trap proceedings. Subsequently, inner linings of right side pant pocket of AO when subjected to the test, it also yielded positive, so as also hand kerchief of AO. Further on questioning AO, he produced relevant record pertaining to PW1 and the said record was seized and AO was arrested and was sent to judicial remand. Subsequent investigation was taken up by PW8, the then Inspector ACB, Kurnool, who assisted PW7 DSP ACB during pre trap and post trap proceedings. He examined the witnesses and after obtaining sanction orders to prosecute AO under Ex.P14 and completion^of investigation, charge sheet was laid against the accused officer for the aforesaid offences.

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On appearance of accused officer, copies of documents were furnished to him as required under Section 207^Cr.P.C.and thereafter, charges under Sections 7 and 13(1)(d) read with 13(2) of the Act were framed against the accused officer and the contents are read over and explained to him in Telugu,^forwhich he pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PWs.1^to8 and got marked Exs.P1 to PI 9 and MOs.1 to 10.

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After closure of the prosecution evidence, accused^officer was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of prosecution witnesses, for which he denied.

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On behalf of accused officer, DW.1 and DW.2 were examined and Ex.DI to D3 were got marked.

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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 offences under Sections 7 and 13(1)(d)^read with 13(2) of the Act and, accordingly, convicted him of^the said offences and sentenced him as aforesaid. Against the said

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conviction and sentence, the present Criminal Appeal has been preferred.

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Heard the learned counsel appearing on behalf of the accused officer and learned Standing Counsel for ACB-cumSpecial Public Prosecutor appearing on behalf of the State. Perused the record.

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Learned counsel for the appellant submits that PW1 , who is the informant, disowned the complaint and further during the course of evidence, he did not support the prosecution case and thereby he was treated hostile by the prosecution.. According to him, there is no accompanying witness along with PW1, and except the evidence of PW1, there is no other evidence or material to further strengthen the evidence of PW1. He further submits that in the absence of proof of any demand made by the accused officer on the date of trap mere recovery of money in possession of the accused officer would not in any way point the finger towards the accused officer. He submits that mere recovery of tainted currency from the possession of the accused officer would not in any way sufficient to convict him of the offences alleged. He submits that there is no legal evidence to

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prove the alleged demand or acceptance by the accused^officer and in the absence of the same, the learned Special Judge erred in convicting and sentencing the accused officer. Hence, he prays to allow the Criminal Appeal, setting aside the^conviction and sentence recorded by the learned Special Judge.

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On the other hand, learned Standing Counsel for ACBcum-Special Public Prosecutor appearing on behalf of the State, submits that learned Special Judge, by relying upon^thefactthat an official favour was pending with the accused officer,^drewan inference that the accused officer accepted the money from P.W.1. According to the learned Special Public Prosecutor appearing on behalf of the State, pendency of official favour along with recovery of tainted amount, would point finger^ataccused officer, and in such a case, onus is on the accused^officerto explain as to how the money was found with him. , He^further submits that merely because the material prosecution witness turned hostile to the case of prosecution, his entire^evidence cannot be brushed aside on this ground, and the prosecution^can establish the guilt of the accused officer by circumstantial evidence. He submits that the learned Special Judge,

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considering the evidence on record, rightly convicted and sentenced the accused officer, and there are no grounds to interfere with the impugned judgment.

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Now the point for consideration is whether the prosecution is able to bring home the guilt of the appellant herein/accused officer beyond all reasonable doubt for offences under Sections 7 and 13(1 )(d) read with 13(2) of the Act ?

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Sum and substance of the charges as against the accused officer is that the Accused Officer (for short AO), being a public servant, working as Mandal Revenue Inspector - II in the office of the Mandal' Revenue Office, Aspari Mandal of Kurnool District, on 18.12.2003, demanded an amount of Rs.2000/as gratification other than legal remuneration as a motive or reward from PW1 for doing official favour i.e., for recommending the application^ofPW1 for issuing a feasibility certificate for construction of house under Government financial assistance and accepted the same in pursuance of the earlier demand, and thereby he is punishable under Section 7 of the Act, and thereby the accused officer obtained a pecuniary advantage to an extent of Rs.2000/- from PW1 as illegal gratification other than legal remuneration for

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doing official favour and thereby, committed criminal misconduct punishable under Section 13(1 )(d) read with 13(2)^oftheAct.

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(a) P.W.1 is the informant, who set criminal law into motion by lodging Ex.PI-report. He is a labourer. According to his evidence, about 6 years prior to the incident, his hut was burnt in his village, and 2 years’ after burning of his hut, PW4 wrote a letter to the MRO for financial assistance for construction of the house from the Housing Corporation; that PW1 took the letter to PW3 and then MRO endorsed the letter to the accused officer; that the accused officer informed him that he would visit the village for verification and report,

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(b) At that stage, witness was asked to identify the^accused officer by getting down from his witness seat since he is having low vision, and the witness got down and verified all the persons sitting in the court and informed that he cannot identify the accused officer.

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(c) It is his further evidence that he waited for 10 to 15 day, but the said Satyanarayana, MRI did not visit their village, and subsequently, a muslim gentleman, who is an Rl, came to their village and gave the report for financial assistance for

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construction of his house. He deposed that he did not give any complaint to ACB at any time, and the signature on the complaint does not belong to him, and he did not visit any time to the office of the DSPi ACB, Kurnool; he did not produce any amount before the mediators and he did not participate in the pre-trap or post trap proceedings, and the ACB did not record his statement at any time.

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(d) At this stage, the learned Special Public Prosecutor sought permission of the court to treat the witness as hostile stating that the witness resiled from his earlier statements. Thus, PW1 was treated hostile by the prosecution. Though^P.W.1 was cross-examined by the learned Special Public Prosecutor, nothing material has been elicited in cross-examination to support the prosecution case.

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PW2, who was working as Industrial Promotion Officer, District Industries Center, Anantapur, acted as a mediator for pre trap and post trap proceedings under Exs.P5 and P10

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respectively, He deposed about conducting the said proceedings.

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PW3 worked as MRO, Aspari mandal. He deposed that he received recommendation letter of the Panchayat Secretary, Yatakallu village with regard to issue of feasibility^{lettertoP.W.1} about burning of his house and he endorsed Ex.P8 to the accused officer on 11.12.2003 to enquire and issue report for issuing the certificate. He deposed that by the date of trap, the accused officer did not submit his report with regard to feasibility certificate in compliance of the endorsement made on^Ex.P8. He deposed that he was not examined by the DSP, ACB on^thedate of trap and that he did not remember whether he was examined by the ACB officials or not subsequent to the trap. He deposed that after one or two months subsequent to the trap, he was called to ACB office, Kurnool and he was examined. At this stage, prosecution sought permission to treat him hostile^andto cross-examine him. In cross-examination by prosecution, he stated that he stated to ACB officials as in Ex.P12-statement,^but he did not state to the ACB officials that along with Ex.P8, P.W.1 submitted proforma and duplicate Ex.P9 and Ex.P7 Vartha paper and Ex.P6-revised feasibility certificate.

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PW4 worked as Village Assistant Secretary. According to his evidence, in the year 2003, he addressed Ex.P8-a recommendation letter to the accused officer for issuing feasibility certificate to PW1 as his shed was burnt and he wanted to construct a house.

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PW5 and PW6 were working as Section Officers in Vigilance-VII Department of Secretariat. They deposed about issuance of Ex.PI 4-sanction order to prosecute the accused officer, by the competent authority, Their evidence remained unchallenged.

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PW7 is the DSP, who is the Trap Laying Officer, who registered the case vide Ex.P15-FIR basing on the complaint lodged by P.W.1. He deposed about conducting pre trap and post trap proceedings under Exs.PS and P10 respectively^and also about laying of the trap. PW8 worked as Inspector of Police, ACB, Kurnool at the relevant point of time^{oftheincident.} He assisted PW7, and after the trap, he took over further investigation, and after completion of investigation and after receipt of relevant documents, including Ex.P16-sanction order, he filed the charge sheet in the case.

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On conspectus of entire material, it is evident that P.W.1 is the crucial and material prosecution witness. Apart^from the evidence of PW1, there is absolutely no other evidence which corroborates or points the finger towards the accused officer that he is the person who has allegedly made a demand on the date of trap and received an amount of Rs.2000/- from PW1. However, he did not support the prosecution case and he was treated hostile by the prosecution case. P.W.1 deposed that about 6 years prior to the incident, his hut was burnt in his village, and 2 years’ after burning of his hut, PW4 wrote a letter to the MRO for financial assistance for construction of the house from the Housing Corporation; that PW1 took the letter to PW3 and then MRO endorsed the letter to the accused officer; that the accused officer informed him that he would visit the village^{forverification} and report. It is his further evidence that he waited for 10 to 15 day, but the said Satyanarayana, MRI did not visit their village, and subsequently, a muslim gentleman, who is an Rl,^cameto their village and gave the report for financial assistance for construction of his house. He further deposed that he did not give any complaint to ACB at any time, and the signature^onthe complaint does not belong to him, and he did not visit any time to

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the office of the DSP, ACB, Kurnool; he did not produce any amount before the mediators and he did not participate in the pre trap or post-trap proceedings, and the ACB did not record his statement at any time. Even P.W.1 failed to identify the accused officer in the open Court that he is the person who was working as Revenue Inspector at the relevant point of time of the incident.

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As regards the alleged earlier demand and the demand on the date of the trap, P.W.1 is the material witness. P.W.1 did not support the case of prosecution. He even could not identity the accused officer, as the person who was working as Mandal Revenue Inspector at the relevant point of time of the incident. He deposed that he did not give any complaint to ACB^at any time, and the signature on the complaint does not belong to him, and he did not visit any time to the office of the DSP, ACB, Kurnool; he did not produce any amount before the mediators and he did not participate in the pre-trap or post-trap proceedings, and the ACB did not record his statement at any time. He denied the suggestions put to him by the learned Special Public Prosecutor. In the entire evidence of P.W.1, there is no whisper with regard to the demand made by the accused officer to do any

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official favour or any demand made by the accused officer^onthe date of the trap. There is no substantive evidence to establish the alleged earlier demand or the demand on the date of the trap by the accused officer. There is also no circumstantial evidence to establish the same. Therefore, this Court has no hesitation to hold that the prosecution failed to establish the demand made by the accused officer, either prior to the trap or on^thedateofthe trap.

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In order to attract an offence under Sections 7 and 13 (1) read with 13 (2) of the Prevention of Corruption Act, it is essential that all the ingredients of the aforesaid provisions^have to be fulfilled. There should be a demand, acceptance and recovery of tainted amount from the possession of the accused officer. These three essential elements are necessary to prove^thecase of prosecution, and if any of the essential ingredients^has not been proved, the entire prosecution case has to be^thrownouton the said ground.

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As regards recovery of tainted currency from the possessio of the accused officer, it is settled law that mere recovery, by itself, de hors of proof of demand, is

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not a ground to convict the accused officer. In P. Satyanarayana Murthy v. District Inspector of Police and Anr./ the Hon’bie Apex Court held that, mere possession and recovery of currency notes from an accused without proof of demand would not establish Section 7 as well as Section 13(1)(d)(i) & (ii) of the Act, 1988. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held^to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act, 1988. 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 thereof, de hors the proof^of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

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(2015) 10 see 152

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

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The said principle was reiterated by the Hon’ble

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Apex 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, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder." In fact, in C.M. Sharma v. State of Andhra Pradesh

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etc.,^ the Hon’ble Apex Court held as under:

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‘‘in support of the submission reliance has been placed on a decision of this Court in the case of Panalal DamodarRathi v. State of Maharashtra (1987) Suppl. see 266 and our attention has been drawn to the following paragraph of the judgment: ‘‘26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The guestion as to the handing over of any bribe and recovery of the same from the accused should be

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^ (2017) 8 Supreme Court Cases 136.

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^ LAWS (SC) 2010 11 84.

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considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand n/as made by the accused and the prosecution has given a false story in that regard, the court will view the allegation^of payment of the bribe to and recovery of the same from the accused with suspicion.” In Suraj Mai v. State (Delhi Admn.), (1979) 4 SCO 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. Another decision on which reliance is placed is the decision of this court in the case of State of Maharashtra V. Dyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in which it has been held as ; “16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. ” 25. In State of Punjab Punjab v. Madan Mohan Lai Verma'^,

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In State of Punjab Punjab v. Madan Mohan Lai Verma'^, the

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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

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"2013(3) MLJ (Crl) 565.

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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 gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused Is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person."

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From the judgments referred to above, it is clear that the Hon’ble Apex Court has categorically held that.

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in order to prove charge under Sections 7 and 13 of Act, 1988 the prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. The Hon’ble Apex Court held that till that is accomplished, accused should be considered to be innocent. The proof of demand of illegal gratification, thus, is the gravamen^of offence under Sections 7 and 13(1) (d) and (ii) of Act, 1988 and in the absence thereof, unmistakably the charge, therefore, would fail. The Hon’ble Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors proof of demand, ipso facto, would thus not be sufficient to bring home the charge under aforesaid two sections. 27. In the case on hand, there is no evidence to prove either the prior demand, or demand on the date of the trap, by the accused officer. In view of the principles^laid down in the aforesaid judgments, this Court is of the view that the prosecution failed to establish the guilt^ofthe appellant/ accused officer of the offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act,¹⁹⁸⁸

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beyond reasonable doubt. The learned Special Judge has not considered the evidence on record in proper perspective and erred in convicting the appellant/ accused officer of the said charges, Hence, the conviction and sentence recorded by the learned Special Judge are liable to be set aside.

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In the result, the Criminal Appeal is allowed and the conviction and sentence passed by the learned Additional Special Judge for SPE & ACB Cases, in the judgment in CC No.26 of 2004, dated 09.06.2009 are set aside. The appellant/accused officer is found not guilty of the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 and is acquitted of the charges leveled against him and he is set at liberty. Fine amount, if any, paid by the appellant shall be refunded to him.

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As a sequel thereto, the miscellaneous applications, if any pending in this Criminal Appeal shall stand closed.

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To

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Sd/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// sectiST^ficer

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