Smt. B. Sugamma (Died) as per Lr Vs the State of Ap Rep by Its Spl. Pp Hyd. for Acb.

BALIJA CHANDRASEKHARAM, S/O. AMPAIAH, AGED ABOUT 74 YEARS, R/O. H.NO.87-1403-106A, MARUTHI MEGA CITY, KURNOOL CAMP-B, KURNOOL, KURNOOL DISTRICT. SINCE APPELLANT NO.1IS DIED , APPELLANT NO.2 IS BROUGHT ON RECORD AS LEGAL REPRESENTATIVE OF APPELLANT NO.1, AS PER THE COURT ORDER DATED 02.05.2023 IN I.A.NO.2 OF 2023 IN CRL.A.NO.1490 OF 2007.

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...APPELLANT(S)

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AND

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THE STATE OF AP REP BY ITS SPL PP HYD FOR ACB, rep. by its Spl. Public Prosecutor, of ACB., High Court of A.P., at Hyderabad.

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...RESPODENT

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Counsel for the Appellant(S):

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1.VARUN BYREDDY

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2.T NAGARJUNA REDDY

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Counsel for the Respondent:

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1.S.SYAM SUNDER RAO SC cum Spl P.P. For ACB

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CRIMINAL APPEAL NO: 1441/2007

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Between:

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TALAMUDI KURUVA MADDAIAH, S/O CHINNA YELLAIAH, R/O HUSSAINAPURAM VILLAGE, ORVAKAL MANDAL, KURNOOL DISTRICT.

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...APPELLANT

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AND

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THE STATE OF AP REP BY ITSSPL PP HYD FOR ACB, rep. by its Spl. Public Prosecutor, for ACB., High Court of A.P., at Hyderabad, through Inspector of Police, ACB.,

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...RESPODENT

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Counsel for the Appellant:

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1.C PRAKASH REDDY

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Counsel for the Respondent:

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1.S.SYAM SUNDER RAO SC cum Spl P.P. For ACB

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The Court made the following COMMON JUDGMENT:

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1. The appeal vide Crl.A.No.1490/2007 is preferred by A.1. The appeal vide Crl.A.No.1441/2007 is preferred by A.2. Both the appeals arose from the judgment dated 09.10.2007 passed in C.C.No.17/2003 on the file of the learned Additional Special Judge for SPE and ACB Cases, City Civil Courts, Hyderabad (hereinafter referred to as „Trial Court‟).

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2. The accused Nos.1 and 2 were tried and convicted by the Trial Court. The Trial Court found accused No.1 guilty of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity, the “P.C. Act”). The Trial Court sentenced

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accused No.1 to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/-, and in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 7 of the P.C.Act. Further, accused No.1 was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/-, and in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act.

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3. The Trial Court found accused No.2 guilty of the offence punishable under section 12 of the P.C.Act and sentenced him to undergo rigorous imprisonment for a period of six months, and to pay a fine of Rs.500/-, and in default of payment of the fine, to undergo simple imprisonment for a period of three months.

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4. During the pendency of the appeal, accused No.1 died, therefore, his legal representatives were came on record to continue the appeal as per section 394 of Cr.P.C.

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5. Both the appeals arise from the same judgment referred to above. In that view of the matter, both the appeals are taken up together and are disposed of by a common judgment. Hence, the common judgment.

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6. The appellant/A.1 was charged for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act and the appellant/A.2 was charged for the offence under Section 12 of the P.C.Act.

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7. The case of the prosecution is that, accused No.1 worked as SubRegistrar, Orwakal, Kurnool District from 01.02.1998 to 26.06.2002. A.2 worked as unlicenced document writer. On 21.06.2002, PW.1 went to the SubRegistrar‟s office at Orwakal and approached the accused No.1 to enquire about the registration of the mortgage deed in favour of Rayalaseema Grameena Bank. He was informed that stamps worth of Rs.3000/- have to be affixed on the document for the purpose of registration and as the stamps are not available at Sub-Registrar‟s office, Orwakal. He was asked to go to Kurnool for stamps. He went to Kurnool, purchased stamps and got prepared the document. He presented the document to accused No.1 for registration. Accused No.1 demanded a gratification of Rs.2,000/-, out of which Rs.600/will be paid to the government for registration fee and the remaining amount of Rs.1,400/- is for the gratification of accused No.1. PW.1 did not agree and made bargain. Accused No.1 reduced the amount to Rs.1,500/-, out of which Rs.600/- would go to the government towards registration fee and the remaining amount is gratification for accused No.1. PW.1 agreed to pay the amount. Accused No.1 directed PW.1 to pay the amount to accused No.2 on 24.06.2002 on the date of registration. PW.1 is unwilling to pay the amount, he approached the Deputy Superintendent of Police, ACP (PW.11) at Kurnool. PW.2 accompanied PW.1 to the office of ACB. PW.1 made oral report on 24.06.2002 at 8.00 AM, it was reduced into writing. A case in Cr.No.6/ACBKUR/2002, under section 7 of the P.C.Act was registered. PW.11 took up the investigation of the case.

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8. During the course of investigation, PW.11 secured the mediators i.e., PW.3 and another (LW.4). After observing necessary formalities relating to pre-trap proceedings under Ex.P5, PW.11 laid the trap at 03.00 PM on 24.06.2002. Accordingly, PWs.1 and 2 visited the office of accused No.1 and made request for registration of the mortgage deed. Accused No.1 reiterated the demand for payment of amount as informed earlier. He called accused No.2 and directed PW.1 to pay the amount to the accused No.2. PW.1 paid the amount to accused No.2. Accused No.2 received the amount and kept it in his right-side trouser pocket. Accused No.1 issued a receipt for Rs.505/- for registration fee. Immediately, PW.11 along with his staff and mediators entered into the office of accused No.1. PWs.4 to 7 were present in the office and their names were mentioned in the post-trap proceedings under Ex.P11. PW.11 conducted sodium carbonate test on both hands of accused No.2, the same resulted positive and it was also conducted on accused No.1, it resulted negative. Accused No.2 produced the amount and PW.11 verified the same by mediators, the currency notes tallied. When PW.11 verified the cash of accused No.1, PWs.4 to 7, he found some small variations only.

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9. PW.11 seized the documents and cash under Ex.P11 in the presence of mediators. Later, investigation was handed over to PW.12. Sanction was issued under Ex.P7 on 17.03.2003 to prosecute the accused No.1. After completion of the investigation, PW.12 laid charge sheet against appellants/accused Nos.1 and 2 for the above offence.

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10. During trial, 12 witnesses were examined for the prosecution as PWs.1 to 12 respectively, 20 documents were marked as Exs.P1 to P20 respectively, apart from M.Os.1 to 8. On behalf of the accused, no oral or documentary evidence was adduced.

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11. The accused were examined U/s.313 Cr.P.C. regarding the incriminating evidence appearing against them from the evidence for the prosecution. The accused denied the same as false. No defence witnesses were examined for the defence.

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12. The plea of the appellant/accused No.1 is that accused No.1 never demanded bribe from PW.1. He did not direct accused No.2 to receive amount from PW.1. The plea of accused No.2 is that he was falsely implicated in the case. His name was not mentioned in the FIR under Ex.P18.

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13. The learned Trial Court, upon consideration of the evidence in the case, convicted the appellants/accused Nos.1 and 2 for the offence referred to above and sentenced them as stated above. Hence, the appeals came to be filed by the appellants/accused Nos.1 and 2 respectively.

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14. The learned counsel for the appellants/accused Nos.1 and 2 would argue that the Trial Court erroneously convicted the appellants though PWs.1 and 2 did not support the case of the prosecution. Further, PWs.4 to 7 also did not support the case of the prosecution. The only material available on record is the evidence of mediator (PW.3) and the investigation officer (PW.11). There is no evidence on record to prove the demand as alleged by the prosecution.

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The prosecution case is that accused No.1 obtained the gratification other than legal remuneration for registration of the deed. The prosecution shall prove both the demand and receiving the gratification amount, they are sine qua non, to prove the offence under section 7 and also section 13(2) of the P.C.Act, in the absence of evidence, to prove the necessary ingredients of demand and receipt of the gratification, the prosecution case fails, the presumption under section 20 of the P.C.Act cannot be raised in the absence of the proof for demand and by the receipt of the amount, but the Trial Court erroneously raised the presumption and basing on the presumption came to a conclusion that prosecution proved the case, therefore, the judgment of the Trial Court is not sustainable in law.

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15. Learned counsel for the appellant/accused No.2 would submit that when there is no evidence to prove the offence under section 7 or 13(2) of the P.C.Act, the offence under section 12 of the said Act cannot be made out against the accused No.2. Therefore, the Trial Court made a grave mistake in coming to a conclusion that prosecution proved the offence under section 12 of the P.C.Act. Therefore, the judgment of the Trial Court is not sustainable in law.

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16. Learned counsel for the appellants/accused Nos.1 and 2, in support of their arguments, relied upon the judgment of the Hon‟ble Apex Court in N. Sunkanna Vs. State of Andhra Pradesh¹ , wherein the Hon‟ble Apex Court considering the scope of section 7 and 13(1)(d) r/w 13(2) of the P.C.Act and application of section 20 of the said Act held that unless there is a proof of

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1(2016) 1 SCC 713

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demand of illegal gratification, proof of acceptance will not follow, and the absence of primary facts, presumption under section 20 of the P.C.Act cannot be drawn.

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17. In Jagtar Singh V. State of Punjab (Criminal Appeal No.2136 of 2010, dated 23.03.2023) the Hon‟ble Apex Court considered the judgment of constitution bench of the Apex Court in Neeraj Dutta V. State (Govt. of NCT of Delhi)² . The Hon‟ble Apex Court in Neeraj Dutta case, held that 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. 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. Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. If the public servant makes a demand and the bribegiver accepts the demand and tenders the demanded gratification, which in turn is received by the public servant, it is a case of obtainment. Whereas, if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act.

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2(2022) SCC OnLine SC 1724

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18. In both the cases mentioned above, the offer by the bribe-giver and acceptance of illegal gratification 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 section 13(1)(d), (i) and (ii) 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 section 13(1)(d) and (i) and (ii) of the P.C.Act. 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 a 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.

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19. In the event of complaint turns „hostile‟, or has died 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 witnesses who can again let in the evidence, either orally or by documentary evidence or the presumption can

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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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20. In so far as section 7 of the Act is concerned, on the proof of the facts in issue, section 20 mandates the court to raise a presumption for illegal gratification or reward as mentioned in the said section. The said presumption has to be raised by the court as a legal presumption or presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to section 13(1)(d), (i) and (ii) of the Act. It is clarified that the presumption in law under section 20 of the Act is distinct from presumption of fact referred to above as the former is a mandatory presumption while the latter is discretionary in nature.

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21. In the case on hand, PW.1 as well as PW.2 turned hostile, PWs.4 to 7 also did not support the case of the prosecution. The only evidence available in support of the case of the prosecution is the evidence of PW.3 and PW.11. PW.3 is the mediator for the trap proceedings and PW.11 is the trap- laying officer.

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22. As already mentioned above, the case of the prosecution is that appellant/accused No.1 made a demand on 21.06.2002 for gratification to register the document when PW.1 visited the office. PW.2 was also present when accused No.1 made the demand. It is also the case of the prosecution that on 24.06.2002 also, accused No.1 reiterated the demand in the presence of PW.2 and asked PW.1 to pay the amount to accused No.2 on 24.06.2002

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i.e., date of registration. So, it is a case of obtainment according to the prosecution version. The prosecution shall prove both the ingredients i.e., demand as well as receipt of the gratification amount. In the light of the judgment of the Hon‟ble Apex Court in Neeraj Dutta’s case, the prosecution shall prove both the ingredients i.e., demand as well as acceptance which are sine qua non to prove the offence under sections 7 and 13(1)(d) r/w 13 (i) and (ii) of the Act.

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23. When coming to the first aspect i.e., demand, the direct evidence relied on by the prosecution is the oral testimony of PWs.1 and 2. Unfortunately, they did not support the case of the prosecution. Undisputedly, PW.3 and PW.1 are not the direct witnesses, present when accused No.1 demanded PW.1 to pay the gratification amount. Therefore, the prosecution has no direct evidence to prove the demand as alleged in the case.

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24. The next question is whether the other material relied on by the prosecution would prove the demand. The prosecution relied upon the report made by PW.1 stating that PW.1 made oral statement to PW.11 on 24.06.2002 and it was reduced into writing vide Ex.P19, but PW.1 did not support the said story and came with a different story. Nothing was elicited during the cross examination of PWs.1 and 2 to substantiate the contention of the prosecution regarding the demand, and that PWs.1 and 2 at later point in time own over or influenced by the accused No.1 officer to make a false statement before the Trial Court. Therefore, the contention of the prosecution that the evidence of PW.11 coupled with Ex.P19 would prove demand cannot be accepted.

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25. The Hon‟ble Apex Court, as discussed above, held that 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. When the prosecution failed to prove the fact of demand with satisfactory evidence, the case of the prosecution with regard to obtainment under section 7 of the P.C.Act and section 13(1)(d), (i) and (ii) of the said act falls to the ground. The Trial Court, as rightly pointed out by the learned counsel for the appellants, raised the presumption, making an observation that admission of accused No.2 regarding the receipt of money coupled with the evidence of PW.3 and PW.11 proved the case of accused and raised the presumption under section 20 of the P.C.Act. It did not consider as to how the testimony of PWs.3 and 11 would establish the factum of demand.

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26. In the light of the above facts and circumstances of the case coming out from the evidence placed on record, which do not prove the case of the prosecution regarding obtainment of gratification as alleged by the prosecution, this Court is of the considered opinion that the judgment of the Trial Court recording conviction against the accused No.1 for the offences under sections 7 and 13(1)(d) r/w Section 13(2) of the P.C.Act, and against the accused No.2 for the offence under section 12 of the P.C.Act are not sustainable in law. Therefore, the judgment of the Trial Court is liable to be set aside.

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In the result, the Criminal Appeal Nos.1490 and 1441 of 2017 filed for accused Nos.1 and 2 respectively are allowed. Therefore, the conviction and sentence

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imposed by the learned Additional Special Judge for SPE and ACB Cases, City Civil Courts, Hyderabad, in C.C.No.17/2003, dated 09.10.2007 against the accused No.1 for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act and the conviction and sentence against the accused No.2 for the offence under section 12 of the P.C.Act are set aside. The bail bonds of accused, if any, shall stand cancelled. The fine amount, if any, paid by them be refunded in accordance with law. This common judgment be certified to the lower Court, as per section 405 of Cr.P.C.

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Miscellaneous petitions pending, if any, in both the Criminal Appeals, shall stand closed.

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_________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI

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Date: 10.02.2026 SAK/PSK.

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THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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