CRIMINAL APPEAL 1176 of 2007 on 25 August 2007

JUDGMENT:

This Criminal Appeal has been preferred against thejudgment dated 25.08.2007 passed in C.C.No.32 of 2002 bythe learned Special Judge for SPE and ACB Cases, Nellore.

2. The sole accused officer is the appellant herein.Hewas tried for the offences punishable under Sections[7][ and]13(2) read with13(l)(d) of the Prevention of CorruptionAct,1988(for short‘theAct’).By his judgment dated25.08.2007, the learned Special Judge found the accusedofficer guilty of the offences under Sections 7 and 13(l)(d)read with 13(2) of the Act and, accordingly, convicted[him]of the said offences and sentenced him to undergo rigorousimprisonment for a period of one year and also to pay[fine]of Rs. 1,000/- in default to suffer simple imprisonment[for]one (01) month for the offence under Section 7 of the[Act.]Hewasfurthersentencedtoundergorigorousimprisonment for a period of one year and also to pay[fine]of Rs. 1,000/- in default to suffer simple imprisonment[for]was tried for the offences punishable under Sections[7][ and]13(2) read with13(l)(d) of the Prevention of CorruptionAct,1988(for short‘theAct’).By his judgment dated25.08.2007, the learned Special Judge found the accusedofficer guilty of the offences under Sections 7 and 13(l)(d)read with 13(2) of the Act and, accordingly, convicted[him]of the said offences and sentenced him to undergo rigorousimprisonment for a period of one year and also to pay[fine]of Rs. 1,000/- in default to suffer simple imprisonment[for]one (01) month for the offence under Section 7 of the[Act.]Hewasfurthersentencedtoundergorigorousimprisonment for a period of one year and also to pay[fine]of Rs. 1,000/- in default to suffer simple imprisonment[for]

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one (1) month, for the offence underSection 13(2) readwith13(1)(d)oftheAct.Boththesentencesofimprisonment were directed torun concurrently.

3. Case of the prosecution, in brief, is that, the accusedofficer workedas Additional Assistant Engineer, APSPDCLVenkatagiri,NelloreDistrict,from11.06.2000to04.06.2002,as such heISia publicservant within themeaningofSection2(c)oftheAct.Thede factocomplainant (PW.l) was doing contract work of ElectricityDepartment. He was entrusted with contract work by theDivisional Engineer, APSEB, Gudur under K2 AgreementNos. 17, 45, 47/1998-1999 and PW-1 completed half of thework under the said agreements. He completed the entirework of re-wiring of Distribution Transformers under theK2agreementNo. 50/1998-1999foranamountofRs. 20,000/- and approached the Appellant several timesand requested him toprepare the bill for Rs. 20,000/- andalsotosubmit workorderproposalstotheDivisionalEngineerfortheworkcompletedbyhimwithoutagreement. The Appellantwaspostponing the sameonVenkatagiri,NelloreDistrict,from11.06.2000to04.06.2002,as such heISia publicservant within themeaningofSection2(c)oftheAct.Thede factocomplainant (PW.l) was doing contract work of ElectricityDepartment. He was entrusted with contract work by theDivisional Engineer, APSEB, Gudur under K2 AgreementNos. 17, 45, 47/1998-1999 and PW-1 completed half of thework under the said agreements. He completed the entirework of re-wiring of Distribution Transformers under theK2agreementNo. 50/1998-1999foranamountofRs. 20,000/- and approached the Appellant several timesand requested him toprepare the bill for Rs. 20,000/- andalsotosubmit workorderproposalstotheDivisionalEngineerfortheworkcompletedbyhimwithoutagreement. The Appellantwaspostponing the sameon some pretext or the other, though about 7 months backPW-1 completed the work and the Appellant, being a publicservant,demanded himtopayRs.5,000/-asillegalgratification and for preparation of the bill. PW-1 expressedhis inability to pay the bribe as he had no money. Then, theAppellant demanded PW-1to pay illegalgratificationofRs. 2,000/- initially within 2 or 3 days, so that he[would]complete the work and further demanded to pay remainingamount of Rs. 3,000/- afterwards. PW-1 accepted to payRs. 2,000/- initially as demanded by the Appellant[as][ he]had no other option, and approached the ACB and gave[a]report on 28.05.2002. Basing on report, a case in Crime[No.]8/ACB-NLR/2002 was registered.After completion of pretrap proceedings, trap was laid on 06.06.2002.On thatday,at about8.20 AM,PW.lapproachedtheaccusedofficer and on seeing him, the accused officer reiterated[his]earlier demand and acceptedthetainted amountfromPW.l.The Deputy Superintendent of Police, ACB, Nellore,who received the pre-arranged signal, rushed to the[Office]of the Accused Officer along with his staff. He got prepared Sodium Carbonate Solutionintwoglass tumblers andsubjected the both hand fingersof the Accused Officertothe chemical test and thetest yielded positive result. TheAccused Officer took outa wad of currency notes from hispant’s rightside pocket and produced thesame. The taintedcurrencywasseizedfromtheaccusedofficerathisinstance.After completion of iinvestigation and on receiptofprosecutionsanctionproceedingsdated20.09.2002,charge sheet was filed against theaccused officer for theaforesaid offences.

4. Onappearanceofaccusedofficer,copiesofdocumentswerefurnishedtohimasrequiredunderSection 207 Cr.P.C, and, thereafter,charges under Sections7 and13(l)(d) read with13(2) of the Actwere framedagainst the accused officer and thecontents are readoverand explained to him in Telugu, for which he pleadednotguilty and claimed to be tried.appearanceofaccusedofficer,copiesofdocumentswerefurnishedtohimasrequiredunderSection 207 Cr.P.C, and, thereafter,charges under Sections7 and13(l)(d) read with13(2) of the Actwere framedagainst the accused officer and thecontents are readoverand explained to him in Telugu, for which he pleadednotguilty and claimed to be tried.

5. Insupportofitscase,theprosecution examinedPWs.l to 9 and got marked Exs.Plto P26 and MOs 1 to 8.case,theprosecution examinedPWs.l to 9 and got marked Exs.Plto P26 and MOs 1 to 8.

6. After closureof the prosecutionevidence, accusedofficer was examined under Section 313 Cr.P.C., explainingtheincriminatingmaterialfoundagainsthimintheevidenceof prosecution witnesses,for which he denied.On behalf of defence, DWs1 and 2 were examined andEx.Dl and 2 were got marked.officer was examined under Section 313 Cr.P.C., explainingtheincriminatingmaterialfoundagainsthimintheevidenceof prosecution witnesses,for which he denied.On behalf of defence, DWs1 and 2 were examined andEx.Dl and 2 were got marked.

7.

7. The learned Special Judge, on appreciation of entireoralanddocumentaryevidenceonrecord,foundtheaccused officer guilty of the offences under Sections[7] and13(l)(d)readwith13(2)oftheActand,accordingly,convicted and sentenced him as aforesaid. Against the[said]conviction and sentence, the present Criminal Appeal[has]been preferred.oralanddocumentaryevidenceonrecord,foundtheaccused officer guilty of the offences under Sections[7] and13(l)(d)readwith13(2)oftheActand,accordingly,convicted and sentenced him as aforesaid. Against the[said]conviction and sentence, the present Criminal Appeal[has]been preferred.

8. Heard.Perused the record.

9. Dr.ChallaSrinivasaReddy,learnedcounselappearing for the appellant/accusedofficer,strenuouslycontended that the material prosecution witness i.e. P.W. 1,did not support the case of prosecution and he completelyresiled from his earlier version while deposing beforetheappearing for the appellant/accusedofficer,strenuouslycontended that the material prosecution witness i.e. P.W. 1,did not support the case of prosecution and he completelyresiled from his earlier version while deposing beforethe Court and he did not depose about either the demandoracceptance of bribe by the accused officer,as alleged by theprosecution. He submits that in order to attract the offenceunder Section 7 of the Act, it is essential that there shouldbe demand and acceptance of the bribe amount by theaccused officer, but except the alleged recovery ofamountfromthepossessionof theaccusedofficer,thereisabsolutely no accusation as against the accused officer thathe is said to have made any demand for the bribe amountand accepted the said bribe amount from PW. 1pursuant tothe demand. He further submitted thataccording to P.W.l,there is noprior demand of bribe or demand at the time ofacceptance of the amount, by the accused officerand hepaid the money on the date of trapas repayment of thehand loan taken by him from theaccusedofficer,Hesubmitsthat nothing has beenelicitedinhiscross-examinationbythePublicProsecutortoconnecttheaccused officer with the offences alleged, and thereisnolegal evidence to prove either demandor acceptance of thebribe amount by the accused officer.He submits that the

prosecution failed to establish the official favour pendingwith the accused officer as on the date of the trap,asissuance of work order for the alleged execution of the workby PW. 1, is not established.It is his further submissionthat the prosecution failed to establish the alleged[demand]or acceptance of illegal gratification by the accused officer,whichare necessaryingredientsfor theoffences underSections 7 and 13(l)(d) read with 13(2) of the Act,1988.He submits that the theory of recoveiy of tainted currencynotes is not acceptable in view of the clinching evidence[of]P.W.l.He submits that there is no accompanying witnessalong with PW. 1, and in the absence of any accompanyingwitness along with PW. 1, mere recovery of amount by[D.S.P]would not improve the case of the prosecution, and[the]Special Judge has not considered these aspects in rightperspective anderred in convicting and sentencingtheaccused officer.Hence, he prayed to allow the appeal[and]set asidetheconvictions and sentences passed by thelearned Special Judge.

He relied on the decisionsreported in KanhaiyalalV.State of Rajasthani and MansukhalVithaldas Chauhanv.state ofGujarat, J-p, in support of his contention.

10. On the other hand, learned standing counsel for ACB-cum-Special Public Prosecutor, vehemently contended thatmerely because there isno proof of demand, the entirecaseof the prosecutioncannot be brushed aside.It is evidentthat the amount has been recovered from the possession ofthe accused officer and the Sodium Carbonate solution testconductedonthe fingersof the accusedofficer provedpositive. He further submitted that PW.1 was won over bythe accused officer and for the saidreason PW.ldid notsupport the prosecutioncase. He further submitted that atthe instance of the accused officer,the bribe amountwashandedoverto him by PW.l and by virtue of thesame hecame into contact with phenolphthalein powderandthefingersof the accusedofficerwhenrinsedinsodiumcarbonate solution turned into pink colour, and hence,seizure of taintedcurrency notes from the possession of the^ 1998 Crl.L.J.3155 (Rajasthan High Court)1997(7) SC 695: (1997 Cri.L.J.4069) standing counsel for ACB-cum-Special Public Prosecutor, vehemently contended thatmerely because there isno proof of demand, the entirecaseof the prosecutioncannot be brushed aside.It is evidentthat the amount has been recovered from the possession ofthe accused officer and the Sodium Carbonate solution testconductedonthe fingersof the accusedofficer provedpositive. He further submitted that PW.1 was won over bythe accused officer and for the saidreason PW.ldid notsupport the prosecutioncase. He further submitted that atthe instance of the accused officer,the bribe amountwashandedoverto him by PW.l and by virtue of thesame hecame into contact with phenolphthalein powderandthefingersof the accusedofficerwhenrinsedinsodiumcarbonate solution turned into pink colour, and hence,seizure of taintedcurrency notes from the possession of the^ 1998 Crl.L.J.3155 (Rajasthan High Court)1997(7) SC 695: (1997 Cri.L.J.4069)

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accusedofficerisestablished.Hesubmitsthattheevidence adduced by the prosecution clearly established[the]guilt of the accused officer for the offences alleged againsthim,andthelearnedSpecial Judgeconsideredtheseaspectsinrightperspective,accordinglyconvictedandsentenced the accused officer of the offences with which hewas charged, and hence, he prays to dismiss the CriminalAppeal.

11. Nowthepointfordeterminationiswhethertheprosecutionis ableto bring homeits case againsttheappellant/accused officer for the offences alleged beyondreasonable doubt, and whether the judgment of the trialCourt needs interference of this Court ?prosecutionis ableto bring homeits case againsttheappellant/accused officer for the offences alleged beyondreasonable doubt, and whether the judgment of the trialCourt needs interference of this Court ?

12. The substanceof thechargeagainst theaccusedofficeris that he, being a public servant employedasAdditional Assistant Engineer, A.P.S.P.D.C.L., Venkatagiri,on 28.05.2002 at his office in Venkatagiri, attemptedtoobtain (demanded) an amount of Rs. 5,000/- from the[de]factocomplainant,asgratificationotherthanlegalofficeris that he, being a public servant employedasAdditional Assistant Engineer, A.P.S.P.D.C.L., Venkatagiri,on 28.05.2002 at his office in Venkatagiri, attemptedtoobtain (demanded) an amount of Rs. 5,000/- from the[de]factocomplainant,asgratificationotherthanlegal remuneration, as a motive or reward for doing an officialfavour,intheexerciseofhisofficialfunctionsanddemanded topay Rs. 2,000/- initially within2 or 3 daystherefromandtopaybribeamountofRs.3,000/-afterw-ards and thereby committedan offence punishableunderSection7oftheAct.Inthecourseofsametransaction, the accused officeron 01.06.2002 at about5.30P.M.athisofficeiVenkatagiri, being a publicservant, by abusing his position by[n]corrupt or illegal meansobtained pecuniary advantage to an extent of Rs.2,000/-from PW. 1 as part of gratification and thereby committedthe offence punishable under Section13(1)(d) read with13(2) of the Act.

13. In order to attract an offence under Section 7 of theAct, 1988, thenecessary ingredients to be establishedarethat the accused officer is a public servant and that heacceptedorobtainedgratificationotherthanlegalremuneration and the gratification was to do an official an offence under Section 7 of theAct, 1988, thenecessary ingredients to be establishedarethat the accused officer is a public servant and that heacceptedorobtainedgratificationotherthanlegalremuneration and the gratification was to do an officialfavour.Under Section 13 (1) (d) of the Act,1988,ifapublic servant, by corrupt or illegal means or by otherwisepublic 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 pecuniaryadvantage, he is guilty of criminal misconduct punishableunder Section 13 (2) of the Act, 1988.

14. The accusedofficer was working as anAdditionalAssisdtant Engineer, APSPDCL, Venkatagiri at the relevantAssisdtant Engineer, APSPDCL, Venkatagiri at the relevantpoint of time of the incident.There is no dispute that hewas a public servant within the meaning of Section 2(c) ofthe Act, 1988.was a public servant within the meaning of Section 2(c) ofthe Act, 1988.

15. Coming to evidence, P.W. 1, who set the criminal[law]into motion, deposed in his evidence that he does contractworks in Electricity Department; that in the year 2001-2002, he did work in Dakkili mandal; that in the year 2001,he did rewiring work in Venkatagiri town; that he does[not]know about the agreements, as the officers used to[obtain]his signatures in documents; that at the instance of[P.W.3-]whowasworkingasAdditionalAssistantEngineer,Venkatagiri, he did works in the year 2000, but he[did][ not]receive the amount of those bills; that he did not[enter][ into]

agreement with regard to that work; that he asked P.W.3about the agreement as it is necessary for preparing thebills, but in the mean while, P.W.3 retired from service andP.W.5 succeeded P.W.3;that he askedP.W.5,but heprotracted the matter,It is his further evidence that heknows the accused officer,who was working as A.E. atDakkili, whoentrusted3or4worksto himandhecompleted the same and the billamounts for the said workswere paid; that the accused officer entrusted a work atNarasappanaidu palli of Dakkilimandal, and while he wasdoing thesaidwork,P.W.5wastransferredandtheaccused officer succeeded hisoffice,and whenhewasdoing the said work, hewasin needof money and theaccused officer paid Rs.2,000/- to him.It is his furtherevidencethat heaskedtheaccusedofficerabouttheamount of the bills for the works done during theperiod ofP.W.3, for which the accused officerstated that he does notknow whether there is work order, etc. for those works andhe would enquire with the A.D.E. and inform him, and aftersome days, he raised a dispute with the accused officer, at which time, one Dandolu Ramana Reddy, a politician,[was]present; that the said Ramana Reddy enquired him aboutthedispute andtold himthattheaccusedofficerdidinjustice to him also, and further told that if he acts as perhis instructions, he would see that the bills are paid[at][ the]earliest point of time.P.W. 1 further deposed that he wastaken to ACB Office, Nellore by the said Ramana Reddy,and after producing some papers, on 28*of a month,P.W.9-lnspector of Police, ACB dictated a report and[it][ was]written by a Constable, and by seeing that report, he copieddown at the instance of P.W.9. Ex.Pl is the report.P.W.lfurther deposed that when he came out of the office,hefound the said Ramana Reddy, who told him to give thereportstating that theaccusedofficer was demandingRs.2,000/- as bribe.He further deposed that he gave[the]reporttotheD.S.P., who askedto come onof thecoming month along with Rs.2,000/-, and the said amountwas arranged by the said Ramana Reddy.

It is the further evidence of P.W. 1 that on the date ofthe trap, at about 4.30 PM, after talking some other things.

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he gave Rs.2,000/- to theaccused officer stating that it wasthe amount due by himto the accused officer whichwastaken by him previouslyasa hand loan, and on that, theaccused officer received thesame and kept in pant pocket,He deposed that at the time ofexamination by the Inspectorof Police, he gave statement asper the instructions of thesaid Ramana Reddy.

16. With the permission of the Court,P.W.l was declaredhostile and hewas cross-examined by the learned SpecialPublicProsecutor.EventhoughP. W. 1wascross-examined by the prosecution,except putting suggestions,which have been denied byP.W.l, nothing incriminatingagainst the accused officer has been elicited in the cross-examinationof P.W.ltoconnecthimtotheoffencesP.W.l was declaredhostile and hewas cross-examined by the learned SpecialPublicProsecutor.EventhoughP. W. 1wascross-examined by the prosecution,except putting suggestions,which have been denied byP.W.l, nothing incriminatingagainst the accused officer has been elicited in the cross-examinationof P.W.ltoconnecthimtotheoffencesalleged.He stated in cross-examination that as the saidRamana Reddy told him that hewould see that hisbillamount was paid, he actedas per his instructions,Hedeposed in cross-examination that the accused officerwashonestandsisincereemployee andnever demandedoraccepted bribe from him at any time, and the contentsinRamana Reddy told him that hewould see that hisbillamount was paid, he actedas per his instructions,Hedeposed in cross-examination that the accused officerwashonestandsisincereemployee andnever demandedoraccepted bribe from him at any time, and the contentsin Ex.Pl and the statements under Sections161 and 164CrPC are not correct and they are false.

17. P.W.2,whowasworkingasAssistantExecutiveEngineer, SRBC, acted as a mediator for pre-trap and posttrap proceedings under Exs.PS and PIO respectively,Hedeposed about the same.

18. P.W.3isaretiredAdditionalAssistantEngineer,APSPDCL, Venkatagiri. He deposed that during his tenure,P.W. 1 did not execute any agreement with the Departmentand he did not do any work under his supervision,Hefurther deposed that on 05.07.2002, he was called to theoffice of A.D.E., Venkatagiri, and as he underwent[heart]operation at that time, he was taken to the said office in apolicejeep,andatthattime,hestatedthatontheinstructions of D.E., he sent some estimates for the worksto be done during Poleramma Jathara in February, 1999,but he did not receive any sanction orders from the[D.E.][ to]execute those works till his retirement and so he had notexecuted any works through P.W. 1.P.W.3 was declaredAPSPDCL, Venkatagiri. He deposed that during his tenure,P.W. 1 did not execute any agreement with the Departmentand he did not do any work under his supervision,Hefurther deposed that on 05.07.2002, he was called to theoffice of A.D.E., Venkatagiri, and as he underwent[heart]operation at that time, he was taken to the said office in apolicejeep,andatthattime,hestatedthatontheinstructions of D.E., he sent some estimates for the worksto be done during Poleramma Jathara in February, 1999,but he did not receive any sanction orders from the[D.E.][ to]execute those works till his retirement and so he had notexecuted any works through P.W. 1.P.W.3 was declared hostile by the prosecution with the permission of the Court.During cross-examination, he denied thes'Liggestion givenby the prosecution thaton the oral instructions of the D.E.,he got done the works of rewinding works of transformerssituated at (i) M.R. Rice Mill; (ii) Vinayaka temple;(iiijSawmill;(iv) Venkateswarara Palace and (v) Perumallaswamytemple, through P.W.l whichwere worth Rs.16,000/-.Hedenied a suggestion that P.W.ldidthose works worthRs.16,000/-.

19. P.W.4 was working as Sub Engineer in the office ofthe A.D.E., APSPDCL, Venkatagiri at the relevant point[of]time of the incident.His evidence is to the effect thatonthe instructions of the DSP, he producedExs.P7toP9-estimation copies of rewiring of transformer at Venkatagiri,on the date of the trap i.e. on 01.06.2002.It is also hisevidencethaton5.7.2002,hewasexaminedbytheInspector of ACB and he produced four work orders whichare marked as Exs.PlS to P16.the A.D.E., APSPDCL, Venkatagiri at the relevant point[of]time of the incident.His evidence is to the effect thatonthe instructions of the DSP, he producedExs.P7toP9-estimation copies of rewiring of transformer at Venkatagiri,on the date of the trap i.e. on 01.06.2002.It is also hisevidencethaton5.7.2002,hewasexaminedbytheInspector of ACB and he produced four work orders whichare marked as Exs.PlS to P16.

20. P.W.5 is predecessor-in-office of the accused officer.His evidence is to the effect that in the month of September,2002, ACB officials enquired him and he produced Exs.Pl?to P21-K2 agreements, which were entered by P.W. 1[with]D.E.,Gudur.ItishisfurtherevidencethatEx.P21agreementNo.37/01-02relatestoDakkiliAdditionalAssistant Engineer relating to Narasapanaidu palli village.and the accused officer was in charge of the post of[the]Additional Assistant Engineer, Dakkili and he sent[the]billrelating to Ex.PI to him, and he check-measured the[same]and sent to the D.E.The said bill is worth Rs. 13,425.31ps, and after deducting income tax, it was Rs. 13,129.00 psand he does not know whether the said amount was paid[to]P.W.l or not.His evidence is to the effect that in the month of September,2002, ACB officials enquired him and he produced Exs.Pl?to P21-K2 agreements, which were entered by P.W. 1[with]D.E.,Gudur.ItishisfurtherevidencethatEx.P21agreementNo.37/01-02relatestoDakkiliAdditionalAssistant Engineer relating to Narasapanaidu palli village.and the accused officer was in charge of the post of[the]Additional Assistant Engineer, Dakkili and he sent[the]billrelating to Ex.PI to him, and he check-measured the[same]and sent to the D.E.The said bill is worth Rs. 13,425.31ps, and after deducting income tax, it was Rs. 13,129.00 psand he does not know whether the said amount was paid[to]P.W.l or not.

21. P.W.7,whoworkedasChiefGeneralManager,Operation, APSPDCL at the relevant point of time of[the]incident.Hisevidenceistotheeffect that he accordedsanctionto prosecute the accusedofficerafter perusingcopies of final report, FIR and mediator reports1[and]2.Ex.P22 is the sanction order issued by him.

22. P.W.8 worked as D.S.P., ACB, Nellore at the relevantpoint of time of the incident.He deposed about recordingstatement of P.W.l,registration of the subject crime under as D.S.P., ACB, Nellore at the relevantpoint of time of the incident.He deposed about recordingstatement of P.W.l,registration of the subject crime underEx.P25,conducting pre-trap and post-trap proceedings.P.W.9 worked as Inspector of Police, ACB,Kadapa duringthe relevant point of time of the incident. He deposed abouthis assistance rendered to P.W.8 during trap proceedings,further investigation conducted by him iinthe subject crimeand filing of charge sheet aftercompletion of investigationand receipt of relevant documents. post-trap proceedings.P.W.9 worked as Inspector of Police, ACB,Kadapa duringthe relevant point of time of the incident. He deposed abouthis assistance rendered to P.W.8 during trap proceedings,further investigation conducted by him iinthe subject crimeand filing of charge sheet aftercompletion of investigationand receipt of relevant documents.

23. In the case on hand, toprove the alleged demand byaccusedofficer,theprosecution examinedthematerialwitness P.W.l.He did notsupport the prosecution versionas regards the demand andacceptance by the accusedprove the alleged demand byaccusedofficer,theprosecution examinedthematerialwitness P.W.l.He did notsupport the prosecution versionas regards the demand andacceptance by the accusedofficer.A perusal of the evidence of P.W.l, it is clear thathe resiled from his earlierversion. He is the decoy witness,He deposed that theaccused officer entrusted a work atNarasappanaidu palli of Dakkilimandal, and while he wasdoingthesaidwork,P.W.5wastransferredandtheaccusedofficer succeeded hisoffice,and when hewashe resiled from his earlierversion. He is the decoy witness,He deposed that theaccused officer entrusted a work atNarasappanaidu palli of Dakkilimandal, and while he wasdoingthesaidwork,P.W.5wastransferredandtheaccusedofficer succeeded hisoffice,and when hewas doing thesaid work, hewasin need of money and theaccused officer paid Rs.2,000/- to him.It is his furtherevidencethatheaskedtheaccusedofficer abouttheamount of the bills for the works done during the period[of]P.W.3, for which the accused officer stated that he does notknow whether there is work order, etc. for those works andhe would enquire with the A.D.E. and inform him.P.W.lfurther deposed that one Ramana Reddy told him to givethe report stating that the accused officer was demandingRs.2,000/- as bribe.It is the further evidence of P.W. 1 thaton the date of the trap, at about 4.30 PM, after talkingsomeother things,he gave Rs.2,000/totheaccusedofficer stating that it was the amount due by him to[the]accused officer which was taken by him previouslyasahand loan, and on that, the accused officer received thesame and kept in pant pocket,He deposed that at thetime of examination by the Inspector of Police, hegavestatementasper theinstructionsof thesaid RamanaReddy.In view of the said reasons, prosecution declaredhim hostile.P.W.l is the material prosecution witness who set the criminal law into motion,He gave a complete go-byto his earlierversion. Though he was declared hostileandcross-examined by the prosecution with thepermission oftheCourt,nothinghasbeenelicitedi[n]hiscross-examinationtoconnecttheaccusedofficerwiththeoffences alleged with regard to either demandor acceptanceof the alleged illegal gratification by him.There is no legalevidencetoshowthattheincidenthadoccurredas‘‘suggestedbytheprosecution.Theevidenceof otherwitnesses does not incriminate anything as againsttheaccusedofficeras regards the alleged demand for doingofficial favour andacceptance of illegal gratification otherthan legal remuneration by the accused officer.

24. To attract the aforesaid offences, it is essential thatthere should bea demand and acceptance of the bribe bythe Accused Officer.There iIS no accompanying witness toshow that there isa demand by the accused officer.Theonly other circumstance available is the recoveiy of thetaintedcurrency notes from the possession of the accusedofficer.It is settled that mere possession and recovery ofthere should bea demand and acceptance of the bribe bythe Accused Officer.There iIS no accompanying witness toshow that there isa demand by the accused officer.Theonly other circumstance available is the recoveiy of thetaintedcurrency notes from the possession of the accusedofficer.It is settled that mere possession and recovery of thecurrencynotesfromtheaccused without proof ofdemand will not bring home the offence under Section[7][ of]theP.C.Act,1988.Asseen fromtheevidenceof thematerial prosecution witness P.W. 1, he took a hand[loan][ of]Rs.2,000/- from the accused officer and the said amountwas repaid by him to the accused officer on the date[of][ the]trap.P.W. 1did not speak an37thing either about anydemand by the accused officer on the date of the traporprior thereto, or about acceptance of the amount as[bribe]by the accused officer.There is no evidence to prove[the]demandoracceptanceof thetaintedcurrency,bytheaccused officer.Further, even if recovery of tainted moneyfromtheaccusedofficerisaccepted, mererecoveryofmoney by itself may not besufficientto show thatthemoney wasreceivedasanillegalgratificationbytheaccused officer from P.W. 1 for doing an official favour.Theprosecution failed to prove the demand, and in the[absence]of evidenceto show that the money was paid asillegalgratification, mere recovery of money, is not sufficientto convict the accused officer of the offencespunishable underSections 7or13(2) read with 13(l)(d) of the Act, 1988.

25. InP. Satyanarayana MurthyV. District Inspector ofPolice and Anr.,3 the HonlDleApex Court held that.merepossession andrecovery of currency notes from an accusedofficer without proof of demandwould not establish Section7 as well as Section 13(l)(d)(i) & (ii)of the Act, 1988.It hasbeen propounded that in the absence ofanyproofofdemand for illegal gratification, the use ofcorrupt or illegalmeansor abuse of positionasa public servant to obtainorany valuable thingpecuniary advantage cannot be heldto be proved.The proof of demand, thus, has beenheld tobeanindispensableessentialityandofpermeatingmandate for an offence under Sections 7and 13 of the Act.Dealing with the same, the Court observedas under; The proof of demand of illegal gratiifcation,thus,isthegravamen of the offence under Sections 7 and13(l)(d)(i)&(ii)of the Act and inabsence thereof unmistakably the chargetherefore,would fail.Mere acceptance ofanyamountallegedly by way of illegal gratiifcationor recovery thereo.f de hors the proof of demand, ipso facto, would thus not besufifcient to bring home the charge under these two sectionsof the Act.

As a corollary, failure of the prosecution to prove[the][ demand]for illegal gratification would be fatal and mere recovery ofthe amount from the person accused of the offence underSections 7 or 13 of the Act would not entail his convictionthereunder."

The said principle was reiterated by the HonTDle ApexCourt in Mukhtiar Singh (since deceased) through his LegalRepresentative v. State of Punjab‘S, as under:-

”23. The proof of demand of illegal gratiifcation, thus, is thegravamen of the offence under Sections 7 and13(l)(d)(i)and (ii) of the Act and in absence thereo,f 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 provethe demand for illegal gratification would be fatal[and]mererecovery of the amount from the person accused of theoffence under Sections 7 and 13 of the Act would not[entail]his conviction thereunder. ”

26. In C.M. SharmaV. State of Andhra Pradeshetc.,5 theHonT^le Apex Court held as under:etc.,5 theHonT^le Apex Court held as under:

-In support of the submission reliance has been placedon adecision of this Court in the case ofPanalal DamodarRathiv.Stateof Maharashtra(1987)Suppl. see 266andourattention has been drawn to the followingparagraph of thejudgment:

26. Therefore, the very foundation of the prosecutioncase ISshaken to a great extent.The question as to the handingover of any bribe andrecovery of the same from theaccusedshouldbeconsideredalongwithothermaterialcircumstances one of which is the question whetheranydemand was at all made by the appellant for thebribe,Whenit is found that no such demandwas made by theaccused and the prosecution has aigiven a false story in thatregard, the court willview the allegation of payment of thebribe to andrecovery of the same from the accusedwithsuspicion.

In Sura] Mai v. State (Delhi Admn.), (1979) 4 SCC725 thisCourt took the view that (at SCCP-727, para 2)mererecovery of tainted money divorced from the circumstancesunder which it is paid is not sufifcient to convict theaccusedwhen the substantive evidence in the case is not reliable.The mererecovery by itself cannot prove the charge of theprosecution against the accused,in the absence of any evidenceto prove payment of bribe orto show thattheaccused voluntarily accepted the money knowingittohebribe.

Another decision on which reliance is placed is the decisionofthiscourtinthecaseof Stateof MaharashtraV..Dyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 inwhich it has been held as:

“16. Indisputably, the demand of illegal gratificationisasine qua non for constitutionof anoffenceundertheprovisions of the Act.For arriving at the conclusion[as]towhetheralltheingredientsof anoffenceviz.demand,acceptance and recovery of the amount of illegal gratiifcationhavebeensatisfiedornot,thecourtmusttakeintoconsideration the facts and circumstances brought ontherecord in their entirety. ”

27. In State of F^njabv. Madan Mohan Lai Verma^, theHon^ble Supreme Courtheldthat,merereceipt of theamount by the accused is not sufficient to fasten guilt,[in][ the]absenceof anyevidencewithregardtodemandandacceptanceof the amountasillegalgratification’.ItisappropriatetoincorporateparagraphNo.7of thesaidjudgment, which reads thus:Hon^ble Supreme Courtheldthat,merereceipt of theamount by the accused is not sufficient to fasten guilt,[in][ the]absenceof anyevidencewithregardtodemandandacceptanceof the amountasillegalgratification’.ItisappropriatetoincorporateparagraphNo.7of thesaidjudgment, which reads thus:

7. The law on the issueiIS well settled that demand ofillegal gratification is sine gua non for constitutinganoffence under the 1988 Act. Mere recovery of tainted moneyIS not sufficient to convict theaccused when substantiveevidence in the case IS not reliable, unless there is evidenceto prove payment of bribe or to show that themoney wastaken voluntarilyasa bribe. Mere receipt of theamount bythe accused is not sufficient to fasten guilt, in the absenceof any evidence with regard to demand andacceptance ofthe amount as illegal gratiifcation. Hence,the burden restson the accused to displace the statutory presumptionraisedunder Section 20 of the 1988 Act,by bringing on recordevidence, either direct or circumstantial,to establish withreasonable probability,that the money was accepted byhim,other than asamotive or reward asreferredtoin Section 7 of the 1988 Act. While invoking the provisionsof Section 20 of the Act, thecourt is required to consider theexplanation offered by theaccused,if any,only on thetouchstone of preponderance of probabilityand not on thetouchstone of proof beyond all reasonabledoubt. However,beforethe accusedis called upontoexplain howtheamountin question was foundinhispossession,thefoundational facts must be establishedby the prosecution.The complainant is an interested and partisan witnessconcerned with the success of the trap and hisevidencemust be testedin the sameway as that of any otherinterested witness. In a proper case, the court may look forindependent corroboration before convicting the accusedperson."

28. InB.JayarajVs.StateofAndhraPradeshinCrl.A.No.696 of 2014 dated 28.03.2014, the HonlDle ApexCourt held at paragraphs 8 and 9 thus:Crl.A.No.696 of 2014 dated 28.03.2014, the HonlDle ApexCourt held at paragraphs 8 and 9 thus:

“8. In the present case, the complainant did not support[the]prosecution case in so far as demand by the accused[is]concerned. The prosecution has not examined any otherwitness,presentatthetimewhenthemoneywasallegedly handed over to the accused by the complainant.to prove that the same was pursuant to any demand madebytheaccused.Whenthecomplainanthimself haddisowned what he had stated in the initial complaint (Ext.P-11) before LW 9, and there is no other evidence to provethat the accused had made any demand, the evidence ofPW 1 and the contents of Ext. P-11 cannot be relied upon tocome to the conclusion that the above material furnishesproof of the demand allegedly made by the accused.[We]are, therefore, inclined to hold that the learned trial courtas well as the High Court was not correct in holding[the]demand alleged to be made by the accused as proved.[The]only other material available is the recovery of the[tainted]currency notes from the possession of the accused. In factsuch possession is admitted by the accused himsel.f[Mere]possession and recovery of the currency notes fromtheaccused without proof of demand will not bring home[the]offence under Section7. The above also will be conclusiveinsofar as the offence under Sections 13(l)(d)(i) and(ii) isconcerned as in the absence of any proof of demand for illegal gratiifcation, theuse of corrupt or illegal meansorabuseof positionasa publicservanttoobtainanyvaluable thing orpecuniary advantage cannot be held to beestablished.

9. Insofar asthepresumption permissibleto be drawnunder Section 20 of the Act iIS concerned, such presumptioncan only be in respect of the offenceunder Section 7 andnot the offences under Sections 13(l)(d)(l) and(ii) of theAct In any event, it is only on proof of acceptance of illegalgratiifcation that presumption can be drawn under Section20 of the Act that such gratiifcation was received for doingor forbearing to doany ofifcial act. Proof of acceptance ofillegal gratificationcan follow onlyif thereiIS proof ofdemand,thesameis lacking in the presentcasetheprimary facts on the basis of which the legalpresumptionunder Section 20can be drawn are wholly absent.

29.

From the judgments referredto above,it is clearthat the Honhle Apex Court hascategorically held that, inorder to prove a charge under Sections7 and 13 of the Act,1988, the prosecution hasto establish by proper proof, thedemand and acceptance of illegal gratification.The Hon hieApex Court held that till that iIS accomplished, the accusedofficer should be consideredto be innocent. The proof ofdemand of illegal gratification,thus,is the gravamen ofoffence under Sections 7 and13(l)(d)(i) and (ii) of 1998 Act SRK, JCrl.AppealNo.1176 of 2007

andin the absencethereof, unmistakablythecharge,therefore, would fail.The HonT)le Apex Court went on tohold that mere acceptance of any amount allegedly by wayof illegal gratification or recovery thereof, de hors proof ofdemand, ipso facto, would thus not be sufficient to bringhome the charge under aforesaid two sections.

30. In view of the aforesaid facts and settled proposition[of]law,itis unsafetoplace animplicitrelianceontheevidence adduced by the prosecutionfor convictingtheaccusedofficer.Thereis nolegal evidenceto find theaccused officer guilty of the charges under Sections[7][ and]13(2) read with 13 (1)(d) of the Act, 1988 leveled againsthim.law,itis unsafetoplace animplicitrelianceontheevidence adduced by the prosecutionfor convictingtheaccusedofficer.Thereis nolegal evidenceto find theaccused officer guilty of the charges under Sections[7][ and]13(2) read with 13 (1)(d) of the Act, 1988 leveled againsthim.

31. In view of the foregoing discussion, this Court nohesitation to hold that the prosecution failed to establish[its]caseagainstthe accusedofficerfortheoffences underSections 7 and 13 (2) read with 13 (1) (d) of the Act, 1988,beyondreasonabledoubt,andtheaccusedofficerisentitled to acquittal.The trial Court did not consider[these]hesitation to hold that the prosecution failed to establish[its]caseagainstthe accusedofficerfortheoffences underSections 7 and 13 (2) read with 13 (1) (d) of the Act, 1988,beyondreasonabledoubt,andtheaccusedofficerisentitled to acquittal.The trial Court did not consider[these]

aspectsinrightperspectivei[n]passingtheimpugnedjudgment.

32. In the result, the Criminal Appeal is allowed, settingaside the conviction andsentence recorded against theappellant/accusedofficeriinthe judgment dated25.08.2007passed in C.C.No.32 of 2002 by the learnedSpecial Judge for SPE andACB Cases,Nellore.The appellant/accused officer is foundnot guilty of the offences punishable under Sections 7 and13 (1) (d) read with 13 (2) of the Preventionof CorruptionAct, 1988 and isaccordingly acquitted of the said offences.Fine amounts,ifany, paid by the appellant/ accusedofficer shall be refunded to him.aside the conviction andsentence recorded against theappellant/accusedofficeriinthe judgment dated25.08.2007passed in C.C.No.32 of 2002 by the learnedSpecial Judge for SPE andACB Cases,Nellore.The appellant/accused officer is foundnot guilty of the offences punishable under Sections 7 and13 (1) (d) read with 13 (2) of the Preventionof CorruptionAct, 1988 and isaccordingly acquitted of the said offences.Fine amounts,ifany, paid by the appellant/ accusedofficer shall be refunded to him.

Miscellaneouspetitionspending,ifany,intheCriminal Appeal shall stand closed.

SD/- E.KAMESWARA RAO

JOINT REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

1. The II Additional Sessions Judge Cum Spl Judge for Special& ACBCases,Nellore. (with records)Cases,Nellore. (with records)

2. The Inspector of Police, Anti Corruption BureauNellore Range, NelloreNellore Range, NelloreDistrict.

3. One CC to SRI. Dr CHALLA SRINIVASA REDDY Advocate [OPUC]

4. One CC to SRI. S.SYAM SUNDER RAO SC cum Spl P.P.[For]ACB Advocate [OPUC]ACB Advocate [OPUC]

5. The Section Officer, Criminal Section, High Court[of][ Andhra][ Pradesh][ at]AmaravathiAmaravathi

6. Three CD Copies

TAC

HIGH COURT

DATED:28/04/2025

ORDER

CRLA.No.1176 of 2007

ALLOWING THE APPEAL

2 6 JUN 2025j[iwntSwlkaiXy