1

IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

* * * *

Crl.A.No.29 of 2009

Between:

Nallagatla Krishna Prasad Died (Per L R)

S/o.Sheshavatharam Asst Engineer O/o.MPDO Gurajala

Guntur District and another

.....Appellants

AND

State of A P

rep by Range Inspector III Anti Corruption Bureau Vijayawada Rage

Vijayawada by Spl PP

.....Respondent

DATE OF JUDGMENT PRONOUNCED : 03.05.2024.

SUBMITTED FOR APPROVAL

HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgments ? Yes/No

2. Whether copies of Judgment may be

marked to Law Reporters/Journals ? Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment ? Yes/No

_____________________________________

VENKATA JYOTHIRMAI PRATAPA, J

2

*HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

+ Crl.A. No.29 of 2009

% 03.05.2024

Between:

# Nallagatla Krishna Prasad Died (Per L R)

S/o.Sheshavatharam Asst Engineer O/o.MPDO Gurajal a

Guntur District and another

.....Appellants

Versus

$ State of A P

rep by Range Inspector III Anti Corruption Bureau Vijayawada Rage

Vijayawada by Spl PP

.....Respondent

! Counsel for the Appellants : Sri Sudhakara Rao Ambati

^ Counsel for the Respondent : Smt. A.Gayathri Reddy, Standing

Counsel for ACB-cum-Special

Public Prosecutor

< Gist :

> Head Note:

? Cases Referred:

1. (2014) 13 SCC 55

2. (2015) 10 SCC 152

3. (2021) 3 SCC 687

4. Crl.A.No.1669/2009 dt.17.3.2023

3

APHC010348382009

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3396]

FRIDAY, THE THIRD DAY OF MAY

TWO THOUSAND AND TWENTY FOUR

PRESENT

HONOURABLE SMT . JUSTICE VENKATA JYOTHIRMAI PRATAPA

CRIMINAL APPEAL No. 29/2009

Between:

Sri Nallagatla Krishna Prasad (died) Per L.R., and

Others

...APELLANT(S)

AND

State Of A.P. ...RESPODENT

Counsel for the Appellant(S):

1. SUDHAKARA RAO AMBATI

Counsel for the Respondent:

1. A GAYATHRI REDDY Standing Counsel for ACB cum Spl. PP

The Court made the following:

JUDGMENT

Aggrieved by the impugned judgment for conviction and sentence

passed against the sole accused in C.C.No.17 of 2006 on the file of the

Court of Special Judge for SPE & ACB Cases, Vijayawada, for the offences

under Sections 7 & 13(2) read with 13(1)(d) of the Prevention of

Corruption Act, 1988

1

under Section 248(2) of the Code of Criminal

1

In short, PC Act

4

Procedure,1973

2

, wherein he was sentenced to undergo simple

imprisonment for a period of one year and to pay a fine of Rs.1,000/-

(Rupees one thousand only) in default to suffer simple imprisonment for

three months for the offence under Section 7 of the Act and further

sentenced to undergo simple imprisonment for one year and to pay a fine

of Rs.1,000/- (Rupees one thousand only) in default to suffer simple

imprisonment for three months for the offence under Section 13(1)(d) read

with Section 13(2) of the Act and directed to run both the sentences

concurrently, the Accused preferred the present Appeal.

2. The appellant and the respondent herein were the accused and the

State represented by the Range Inspector-III, Anti Corruption Bureau

(ACB), Vijayawada, respectively before the trial Court. During the

pendency of the appeal, the accused died. His legal representatives,who

are his wife and daughter, came on record to pursue the appeal.

3. The case of the prosecution in brief is as follows:

a. Accused officer worked as an Assistant Engineer in the office

of MPDO, Gurazala, Guntur District. The complainant namely, Challa

Srinivasa Rao was a Contractor. The complainant was engaged by the

Government for construction of protection wall from S.C.Hostel to the

house of Yerukala Nagaiah in Gurajala Village under Janma Bhoomi

Programme. The worth of the contract was Rs.1,50,000/- and it was agreed

2

In short, Code

5

to complete on or before 31.10.2003. The complainant (P.W.1) executed the

work and received rice worth of Rs.45,000/- and the balance to be paid to

him was Rs.1,05,000/-.

b. In that regard, on 01.04.2004, he met the accused officer for

release of the remaining amount of Rs.1,05,000/-. The accused officer

demanded 10% of the total estimation of the contract work, which comes

down to Rs.15,000/- as a bribe to clear his due amount. On bargaining, the

bribe amount was reduced to Rs.5,000/-, and that the accused officer

informed the Complainant that if his demand is not fulfilled, the M-Book

and bill would not be processed. The accused officer asked the complainant

to pay the bribe amount and they met in the house of accused officer on

27.05.2004 in the evening hours.

c. The complainant, who was not willing to oblige the demand of

the accused officer, gave a report to Anti Corruption Bureau. Sri N.Ravi

Kumar Reddy (P.W.9) on receipt of the said report from the complainant

(P.W.1) and after verifying the antecedents of the accused officer and on

the instructions of the Joint Director, ACB, Hyderabad, registered the

complaint, vide Crime No.16/RCT-ACB-VJA/2004 of ACB, Vijayawada

Range, Vijayawada (Ex.P14) for the offences punishable under Sections 7

and Section 13(1)(d) read with 13(2) of the Act.

d. P.W.9 conducted pre-trap proceedings in the presence of the

mediators. The complainant produced Rs.5,000/- and after applying

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phenolphthalein powder on the currency notes, P.W.9 asked him to pay the

same to the accused officer only on his further demand and in case, the

accused officer accepts the bribe amount, to give prearranged signal. The

complainant entered into the house of the accused officer at 4.35 p.m. on

27.05.2004 and gave signal to P.W.9 that the accused officer received the

bribe amount. Immediately, P.W.9 along with mediators rushed to the

scene, conducted Sodium Carbonate solution test and the accused officer

voluntarily led P.W.9 and mediators and showed the tainted amount which

was on the table cloth.

e. The serial numbers of the said currency notes were compared

with that of the numbers mentioned in the pre-trap proceedings (Ex.P9)

and the same were tallied. P.W.9 also conducted Sodium Carbonate

solution test on the tainted amount, which yielded positive result.

f. During the course of investigation, P.W.9 prepared rough sketch of

the scene of offence and conducted post tra p proceedings. Ex.P4-

measurement book was seized from P.W.2, and the statements of P.Ws.2 to

6 were also recorded. P.W.9 got recorded the statement of P.W.1 under

Section 164 of the Code before the learned II Metropolitan Magistrate,

Vijayawada. After completion of the investigation, charge sheet was filed

against the accused officer for the offences stated above.

7

Proceedings before the trial Court:

4. On appearance of the accused officer before the trial Court, charges

for the offences under Sections 7 and Section 13 (1) (d) read with 13(2) of

the Act were framed against the accused officer for which, he pleaded not

guilty and claimed to be tried. The trial went on. To substantiate its case,

before the trial Court, the prosecution examined P.Ws.1 to 9 and

documents Exs.P1 to P14 were marked apart from marking Material

Objects M.Os.1 to 8. Ex.X1-Authorisation to P.W.8 to give evidence was

marked through P.W.8. The accused officer was examined under Section

313 of the Code by trial Court by placing the incriminating material found

in the evidence of prosecution witnesses for which, the accused officer

denied the same and reiterated his stand that he neither demanded nor

accepted any amount from P.W.1. After hearing and on appreciation of the

evidence on record, the learned trial Judge found the accused officer guilty

for the said offences and convicted him as stated above.

Grounds of Appeal

5. Having been aggrieved by the impugned Judgment of conviction and

sentence passed against him, the accused officer preferred the present

appeal on the following grounds:

a. The learned trial Judge failed to appreciate the evidence on record in

a right perspective. P.W.1 in his statement recorded under Section 164 of

the Code by the learned Magistrate (Ex.P2) itself disowned the contents of

8

the complaint. The learned trial Judge found the accused officer guilty

based on the previous statements of the witnesses during the course of

investigation, who did not depose before the Court. Hence, no weight can

be attached to the previous statements, but the trial Court committed

gross illegality in convicting the accused officer.

b. The learned trial Judge failed to observe that there was no official

favour pending with the accused officer and hence the presumption can be

drawn in favour of the accused officer. In the absence of the evidence of

P.W.1 supporting the prosecution story, the Court cannot consider the pre

and post trap proceedings as gospel truth.

c. The trial Court made out the case against the accused officer

contrary to the contents of the complaint and the evidence on record.

Arguments Advanced at the Bar

6. Heard Sri Sudhakara Rao Ambati, learned counsel for the

appellants and Smt.A.Gayathri Reddy, learned Standing Counsel for ACB-

cum-Special Public Prosecutor appearing for the respondent/State.

Perused the material on record.

7. Learned counsel for the appellants, in elaboration to the

contents of the Memorandum of Appeal, would point out that P.W.1/

complainant was examined to speak to the fact that the accused officer

demanded bribe of Rs.5,000/- and accepted the said amount, whereas, the

evidence of P.W.1 is to the effect that the accused officer never demanded

9

any bribe amount nor accepted. It is also submitted that, in the statement

of P.W.1 recorded by the learned Magistrate under Section 164 of the Code,

he stated that the accused officer passed the bill and there is no necessity

of money. Submitting so, it is pointed out that, when the evidence of P.W.1

is clear to the effect that there is no demand of bribe from the accused

officer, investigating officer ought not to have filed the charge sheet, since

there is no other witness or material on record supporting the version of

the prosecution.

(ii) Learned counsel further submitted that the evidence of P.W.2

is to the effect that, after obtaining work estimate from the D.E.E, the bill

is to be prepared by the accused officer, which means, the preparation of

the bill by the accused officer is only after getting approval from P.W.3. He

would submit that by the date of trap, the work estimate was pending with

D.E.E and no official favour was pending with the accused officer. Learned

counsel also states that the evidence of P.Ws.2 and 3 is clinching to the fact

that no official work was pending with the accused officer at the relevant

time of trap. He would submit that the statement of P.W.1 during the post

trap proceedings is that, he offered bribe amount to the accused officer and

he took the amount with his right hand and after counting, he kept the

amount on the table cloth.

(iii) It is further argued that the accused officer asked P.W.1 to

prepare name boards and photos. At this juncture, learned counsel

10

vehemently argued that the learned trial Judge recorded the name of one

Udaya Kumar, who is the eldest son of the accused officer, with reference

to his statement during the post trap proceedings. The statement of the

said Udaya Kumar is that at about 4.30 p.m. while his father was about to

go to bathroom, one person entered and talked to his father and they both

came to second room and that person offered some currency notes and

placed it on the table and the new person went away and thereafter, ACB

officials entered into the room.

(iv) Learned counsel would submit that the son of the accused officer

was not examined by the prosecution as a witness and his alleged

statement in the post trap proceedings has no value at all in the eye of law.

He would submit that the learned trial Judge placed reliance on the

statement of the said Udaya Kumar, during post trap proceedings to

convict the accused officer, which is contrary to law. Learned counsel

further submits that the statement of the said Udaya Kumar was not

examined by P.W.8 nor was he cited as a witness before the court below. It

is stated that such an appreciation of evidence by the trial Court is a

dangerous trend in the adjudication of the criminal proceedings. Learned

counsel, therefore, submits that the learned trial Judge erroneously

convicted the accused officer without there being any evidence on record to

connect the accused officer with the alleged crime, which is manifest.

11

(v) To buttress his contentions, learned counsel for the Appellant

placed reliance on the authorities in B.Jayaraj v. State of Andhra

Pradesh

3

, P.Satyanarayana Murthy v. District Inspector of Police, State of

Andhra Pradesh and another

4

, N.Vijaya Kumar v. State of Tamil Nadu

5

and Neeraj Dutta v.State (Govt. of N.C.T. of Delhi)

6

. Learned counsel thus

prays to allow the appeal by setting aside the impugned Judgment.

8. Learned Standing Counsel for ACB -cum-Special Public

Prosecutor appearing for the Respondent/State would submit that, after

fifteen days of the alleged trap, the statement of P.W.1 under Section 164

of the Code was recorded by the learned Metropolitan Magistrate,

Vijayawada, wherein, he has not supported the case of the prosecution.

Learned counsel fairly submits that, except the fact that the amount

recovered from the second room of the house of the accused officer, nothing

is placed on record.

Points for Determination

9. Considering the submissions made by the learned counsel and on

perusal of the record, the points that would emerge for determination are:

a. Whether the Accused officer demanded and received illegal

gratification from the complainant/P.W.1 to attend the official

favour pending with him?

3

. (2014) 13 SCC 55

4

. (2015) 10 SCC 152

5

. (2021) 3 SCC 687

6

[in Criminal Appeal No.1669 of 2009 , dated 17.03.2023 of the Hon’ble Apex Court

12

b. Whether the prosecution has proved the guilt of the accused

officer for the offences alleged against the petitioner beyond

all reasonable doubt?

c. Whether the impugned Judgment of the conviction and

sentence imposed against he accused officer is sustainable on

facts and law or any interference is warranted while sitting in

the Appeal?

Determination by the Court

10. Before going to discuss on the points framed in this appeal, it is

appropriate to have a clear idea, about the power and duty of a Criminal

Appellate Court. The Hon’ble Apex Court in Bakshish Ram v. State of

Punjab

7

, held as follows;

“10) The High Court, as a first Court of appeal, on

facts must apply its independent mind and record its

own findings on the basis of its own assessment of

evidence. Mere reproduction of the assessment of trial

Court may not be sufficient and in the absence of

independent assessment by the High Court, its

ultimate decision cannot be sustained. The same view

has been reiterated by this Court in Sakatar Singh

&Ors. vs. State of Haryana, (2004) 11 SCC 291.

11) In Arun Kumar Sharma vs. State of Bihar, (2010)

1 SCC 108, while reiterating the above view, this

Court held that in its appellate jurisdiction all the

facts were open to the High Court and, therefore, the

High Court was expected to go deep into the evidence

and, more particularly, the record as also the proved

7

2013 Crlj 2052 (SC)

13

documents. Contrary to the above principle, we are

satisfied that in the case on hand, the High Court

failed to delve deep into the record of the case and the

evidence of the witnesses. The role of the appellate

Court in a criminal appeal is extremely important

and all the questions of fact are open before the

appellate Court. The said recourse has not been

adopted by the High Court while confirming the

judgment of the trial Court.”

(emphasis supplied)

11. Coming to the instant case, there is no dispute about the fact that

the accused officer was working as an Assistant Engineer in the office of

the MPDO, Gurazala at the relevant point of time. Nothing is in dispute

about the status of the accused officer as public servant, within the

meaning of Section 2(c) of the P.C. Act. It is not in dispute that the

construction of protection wall from SC hostel to the house of Y.Nagaiah

in Gurazala was entrusted to the complainant/P.W.1 and the worth of the

contract was Rs.1,50,000/-. There is no dispute about the fact that the

complainant/P.W.1 has received the rice worth of Rs.45,000/- and the

remaining amount of Rs.1,05,000/- was due to him.

12. The prosecution alleges against the accused officer that, when P.W.1

met the accused officer on 01.04.2004 for realisation of the remaining

amount, the accused officer demanded bribe of 10% on the total contract,

which comes to R.15,000/- and on bargaining, it was reduced to Rs.5,000/-.

13. P.W.2 is the Junior Technical Officer in the office of the Panchayat

Raj Department. He was examined to speak about the circulation of the

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file relating to P.W.1. P.W.3 is the Deputy Executive Engineer, who is the

approving authority, to the claim of the complainant. P.W.4 is the

colleague of P.W.1, who is the Assistant Engineer, and who prepared the

file for circulation. P.W.5 is the Executive Engineer who was examined to

speak about the despatch register maintained with the officer to know the

details of the movement of the file. P.W.6 is the in-charge Mandal

Panchayat Development Officer, Gurajala, who was examined to speak

about the maintenance of the attendance register which would prove that

the accused officer attended the office on the relevant date. P.W.7 acted as

a mediator to pre and post trap proceedings. P.W.8 is the authorised

person, who spoke about the sanction order issued to prosecute the

accused officer. P.W.9 is the Investigating Officer who filed charge sheet

against the accused. It is interesting to note that the complainant, who

presented the report to ACB did not support the case of the prosecution.

The evidence of P.W.1 is that he has completed the work and he was given

rice worth of Rs.45,000/-. He met the accused officer to get the remaining

amount and he was informed that he prepared the estimation which was

sent to the Deputy Executive Engineer for approval. It is further deposed

that he has approached the Deputy Executive Engineer and he was asked

to come after four days since he was busy.

14. It is the evidence of P.W.1 that he has inimical terms with the

Sarpanch of Gurzala Gram Panchayat and he suspected that he may

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influence the officers to see that the bill could not be passed. He was

informed that the said Sarpanch created hurdles in passing the bill by

influencing the accused officer. He was advised to contact the ACB

officials. Accordingly, he met the ACB officials along with the complaint.

But the ACB Inspector informed him that his constable would prepare a

report. Now, P.W.1 disowned the contents of Ex.P1 saying that the

petition in fact, he presented to ACB officials is not Ex.P1 and it was

prepared by the Constable on the direction of the Inspector. P.W.1 further

stated that he went to ACB office along with Rs.5,000/- as directed by

ACB officials. They have kept the amount in the shirt pocket and along

with ACB officials as directed by them, he entered the house of the

accused officer. The evidence of P.W.1 is that the accused officer was

present in the second room and enquired about the purpose of his visit

and then he has informed that he had to receive the remaining bill

amount. On that, the accused officer instructed him to produce two

photographs and erect the name board on the work spot. P.W.1 further

deposed that when he offered the amount of Rs.5,000/- to the accused

officer, he refused to receive it and pushed the same with both hands and

then P.W.1 kept the amount on the table cloth and the accused officer

asked him to take away the amount. P.W.1 came out of the house and

wiped his face with hand kerchief. Then the ACB officials rushed to the

house of the accused officer and asked him to wait outside for ten

16

minutes. It is his evidence that his statement was not recorded. Fifteen

days thereafter, he gave a statement before the learned II Metropolitan

Magistrate, Vijayawada. He identified his signature in that statement

which is marked as Ex.P2. It is pertinent to mention here that, whatever

deposed by P.W.1 before the Court was stated before the learned

Magistrate while recording the statement of P.W.1 under Section 164 of

the Code. It is not that he resiled from his statement which was recorded

by the learned Magistrate under Section 164 of the Code and introduced

the new version before the Court. Nothing has been elicited in the cross-

examination of the P.W.1 by the learned Assistant Public Prosecutor.

15. On the other hand, P.W.1 in the cross-examination strongly

reiterated his stand stating that the accused officer –Krishna Prasad

never demanded him any bribe. He deposed that the contents of his report

are not correct. In the cross-examination, P.W.1 further stated that he met

the Deputy Executive Engineer, who told him that he received the work

estimate from the accused officer and he would look into it later. In clear

terms, he deposed before the court that the accused officer never

demanded any amount nor accepted Rs.5,000/- from him.

16. P.W.2 the Assistant Engineer deposed before the Court that he has

received the approval from the accused officer on 26.05.2004 at 5.00 p.m.

along with M-Book. The Deputy Executive Engineer was on camp and he

put his initials on the technical approval on the same day at 7.00 p.m.

17

and placed before the Deputy Executive Engineer, who came to the office

at 7.30 p.m. According to this witness, on the date of trap i.e., on

27.05.2004, he has furnished the relevant record to the ACB officials. The

work estimate along with M-Book was marked as Ex.P4. In cross-

examination, he re-affirmed that unless the Deputy Executive Engineer

approves the estimation, the accused officer cannot process the bill. By

the date of trap, the work estimate was pending in the office of the

Deputy Executive Engineer for approval. It is apt to note here that P.W.2

stated that the accused officer signed on the file on 01.05.2004 at about

4.00 p.m. and on 27.05.2004 he received a call from ACB officials, who

instructed him and the Deputy Executive Engineer to be present in the

office stating that the accused officer was trapped.

17. Coming to the evidence of P.W.3- Deputy Executive Engineer, he

deposed that the final bill was prepared by the accused officer for the

work done till 30.04.2004. On 26.05.2004, he received the work estimate

and M-Book from the accused officer through P.W.2 and he has approved

the same on the same day at about 7.30 p.m.

18. P.W.4 is the Assistant Engineer and he deposed about the

completion of construction of protection wall by P.W.1.

19. P.W.5 is the Executive Engineer. He deposed that they maintained

despatch register. It is his evidence that the office of the Deputy Executive

Engineer has failed to examine the despatch register.

18

20. P.W.6 is the In-charge MPDO. He deposed that the attendance

register and the booklet relating to Janmabhoomi programme and the

resolution of the gram panchayat entrusting the work to P.W.1 are

marked through this witness as Exs.P5 to P7 respectively.

21. P.W.7, who is the mediator for pre and post trap proceedings, is the

crucial witness. The pre-trap proceedings are marked as Ex.P9. He

testified that after receiving the signal from P.W.1, the trap party rushed

into the house of the accused officer and found him sitting on the cot in

the front room wearing a towel. When the Inspector asked to show the

currency notes, he went to the second room and showed the currency on

the cloth of the table. The Inspector seized the amount of Rs.5,000/-.

According to this witness, the spontaneous version of the accused officer

was that P.W.1 pulled out the currency notes from his pant pocket and

forcibly thrusted the same into the hands of the accused officer. The

accused officer refused to take the said amount, but P.W.1 did not listen to

his words and did not take the amount and then the amount was kept on

the table cloth by P.W.1. His further evidence is that the accused officer

represented to ACB Inspector that the name Board has to be prepared by

P.W.1 and put the same at work spot and that P.W.1 has to get the

photographs of the work executed by him. He did not do so till the date of

trap. The accused officer further stated that the work executed by P.W.1

was not technically completed and prepared the work estimate and sent

19

the same to the Deputy Executive Engineer for sanction of work estimate

and after sanction proceedings received from the Deputy Executive

Engineer, the bill has to be prepared. P.W.7 further stated that the

accused officer informed the Inspector, ACB that he was informed P.W.1

about the photographs and the name board. He went out and in the

meanwhile, the ACB officials arrived to the spot. He never demanded any

bribe amount nor accepted the same from him.

22. P.W.8 is the Section Officer, who deposed relating to sanction

proceedings to prosecute the accused officer, vide G.O.Ms.No.343 dated

28.09.2005, which was marked as Ex.P13.

23. P.W.9 is the Investigating Officer, who narrated about the

investigation done by him with all minute details. It is important to note

that in cross-examination, this witness admitted that by the date of trap,

no paper relating to P.W.1 was either pending with the accused officer or

seized from the accused officer. Unless the accused officer sends the work

estimate to P.W.3 and receives the sanction orders from P.W.3, the accused

officer cannot process the bill of P.W.1. The work estimate under Ex.P4

was sent by the accused officer on 01.05.2004.

24. It was elicited in the cross-examination of P.W.9 that, when they

have questioned the accused officer whether he demanded and accepted

the bribe from P.W.1, accused officer represented that he never demanded

and accepted the bribe but, P.W.1 forcibly kept it on the table cloth. P.W.9

20

deposed that he has not verified to ascertain the truth or otherwise of the

statement of the accused officer, and he has not visited the work spot of

P.W.1 to ascertain the truth or otherwise of the explanation of the accused

officer. It is stated that he did not visit the work spot of P.W.1 to ascertain

whether P.W.1 has fixed the name board at the work spot. P.W.9 further

stated that even as per the 164 Cr.P.C statement of P.W.1, there is no

statement of demand and acceptance of the bribe amount by the accused

officer. In the explanation submitted by the accused officer in response to

his notice and also as per the written statement given by the accused

officer during post trap proceedings, the accused officer clearly stated that

he neither demanded nor accepted any bribe amount from P.W.1 and that

when P.W.1 forcibly thrusted the amount in his hands, he refused to take

the same and P.W.1 kept the same on the table cloth and went out without

hearing him, and in the meanwhile, the ACB officials arrived. P.W.9

admitted that in the rough sketch they have not shown that the accused

officer was sitting on the cot in the front room by the time the trap party

entered into the house of the accused officer.

25. The fact remains that the amount was recovered from the house of

the accused officer, which was kept on the table in the second room of the

house of the accused officer. The explanation of the accused officer at the

time of trap as stated by P.W.7 is to the effect that he never demanded

any bribe but P.W.1 pulled out the currency notes from his pant pocket

21

and forcibly thrusted the same into the hands of the accused officer and

the accused officer refused to take the amount but P.W.1 did not listen to

his words and did not take the amount and kept the same on the table

cloth. This is the spontaneous explanation of the accused officer at the

time of trap.

26. Needless to say, very recovery of money from the accused officer is

not suffice to convict the accused officer for the offences registered against

him, unless it is proved that he demanded and received the bribe as

illegal gratification for attending the official favour, which is pending with

him. The evidence of P.Ws.1, 7 and 9 would go to show that the accused

officer was in towel at the time when P.W.1 entered into his house, which

means that there was no prior planning of the accused officer and he did

not expect the presence of P.W.1 at his house at that moment. P.W.1 being

the contractor, must have prior acquaintance with the accused officer, as

such, he entered into the second room of the house of the accused officer.

The record further shows that P.W.1 in his 164 Cr.P.C. statement before

the learned Magistrate at the threshold of the investigation stated that

the accused officer never demanded any bribe. The evidence also would

indicate that on the instructions of the Inspector, the ACB officials

prepared the complaint. Admittedly, P.W.1 is not a signatory. The crucial

witnesses are P.Ws.3 and 4, to speak to the fact of the official favour

pending with the accused officer. But their evidence is to the effect that

22

the work-estimate and M-Book relating to the work done by P.W.1 were

received by P.W.3 and he has approved the same on the very same day.

P.W.2 testified that he received the approval from P.W.1 on 26.05.2004 at

5.00 p.m. along with M-Book and P.W.3 was on camp and he put his

initials on the same day at 7.00 pm. P.W.3 also approved the same at 7.30

p.m. The date of the trap is 27.05.2004, which indicates that, by the date

of trap, there is no official favour pending with the accused officer, and in

fact, the accused officer has attended the work, which is pending with

him, by previous day. It is not the evidence of P.Ws.7 and 9 that the

amount has been recovered from any of almyrah in the house of the

accused officer. The spot explanation which was given by the accused

officer and the statement of P.W.1 before the learned Magistrate coupled

with the evidence of P.W.9 would show and probablise the version of the

accused officer that he has not accepted the amount but P.W.1 thrusted

the amount into his hands and when he refused to take the amount, P.W.1

kept the same on the table cloth.

27. Had the version of P.W.9 that the accuse officer demanded and

received the bribe is correct, the accused officer would have kept that

amount at a safe place. It probablizes the version of the accused officer

that when he has not accepted the amount, P.W.1 kept the same on the

table cloth. As rightly argued by the learned counsel for the appellant, the

learned trial Judge surprisingly, recorded the version of the eldest son of

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the accused officer, namely, Udaya Kiran, in the post trap proceedings to

support his finding that the accused officer demanded and received the

amount from P.W.1. The learned Judge did not notice that said Udaya

Kiran was neither cited nor examined as witnesses in this case. None of

the witnesses spoke before the Court about the pendency of the official

favour with the accused officer, but the learned trial Judge failed to

observe the same and held that the official favour is pending with the

accused officer. It appears that the learned trial Judge has given much

weight to the contents of the mediatornama by ignoring the evidence of

the witnesses on material aspects which were elicited in their cross-

examination by the defence. Learned trial Judge mistakenly presumed

the things while appreciating the evidence of P.W.1 stating that the

accused officer, only to receive the amount, brought P.W.1 to the second

room. If such is the case, he never intended to take the amount and he

would have talked with P.W.1 in the first room itself and would have sent

him back. The observation of the learned trial Judge is completely based

on the assumptions and presumptions without any basis.

28. In B.Jayaraj’s case (supra) at paragraphs-7 and 8, it was held as

under:

7. Insofar as the offence under Section 7 is concerned, it is a

settled position in law that demand of illegal gratification is sine

qua non to constitute the said offence and mere recovery of

currency notes cannot constitute the offence under Section 7

24

unless it is proved beyond all reasonable doubt that the accused

voluntarily accepted the money knowing it to be a bribe. The above

position has been succinctly laid down in several judgments of this

Court. By way of illustration reference may be made to the

decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1: (2013) 2

SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 :

(2009) 2 SCC (Cri) 1.

8. In the present case, the complainant did not support the

prosecution case insofar as demand by the accused is concerned.

The prosecution has not examined any other witness, present at

the time when the money was allegedly handed over to the

accused by the complainant, to prove that the same was pursuant

to any demand made by the accused. When the complainant

himself had disowned what he had stated in the initial complaint

(Ext. P-11) before LW 9, and there is no other evidence to prove

that the accused had made any demand, the evidence of PW 1 and

the contents of Ext. P-11 cannot be relied upon to come to the

conclusion that the above material furnishes proof of the demand

allegedly made by the accused. We are, therefore, inclined to hold

that the learned trial court as well as the High Court was not

correct in holding the demand alleged to be made by the accused

as proved. The only other material available is the recovery of the

tainted currency notes from the possession of the accused. In fact

such possession is admitted by the accused himself. Mere

possession and recovery of the currency notes from the accused

without proof of demand will not bring home the offence under

Section 7. The above also will be conclusive insofar as the offence

under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of

any proof of demand for illegal gratification, the use of corrupt or

25

illegal means or abuse of position as a public servant to obtain any

valuable thing or pecuniary advantage cannot be held to be

established.

9. Insofar as the presumption permissible to be drawn under

Section 20 of the Act is concerned, such presumption can only be in

respect of the offence under Section 7 and not the offences under

Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on

proof of acceptance of illegal gratification that presumption can be

drawn under Section 20 of the Act that such gratification was

received for doing or forbearing to do any official act. Proof of

acceptance of illegal gratification can follow only if there is proof of

demand. As the same is lacking in the present case the primary

facts on the basis of which the legal presumption under Section 20

can be drawn are wholly absent.

29. Mere recovery of the tainted currency notes from the possession of

the accused officer without any proof of demand, will not bring home the

offence under Section 7 of the PC Act. If the prosecution is able to

establish that the accused officer accepted the illegal gratification, then

the presumption can be drawn under Section 20 of the Act. 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

things or pecuniary advantage cannot be held to be established.

30. Coming to the facts of the present case, P.W.1 did not support the

case of the prosecution. In addition to that, in 164 Cr.P.C. statement before

the learned Magistrate it is stated that, immediately after the trap at the

26

threshold, he deposed that the accused officer never demanded any bribe

from him. The prosecution failed to establish that there was a demand

from the accused officer and he accepted the illegal gratification from

P.W.1. Therefore, the question of presumption under Section 20 of the PC

Act cannot be helpful to the case of the prosecution.

31. In P.Satyanarayana Murthy’s case (supra), at paragraphs-22 and 23

it was held as under:

22. In a recent enunciation by this Court to discern the

imperative prerequisites of Sections 7 and 13 of the Act, it has been

underlined in B. Jayaraj in unequivocal terms, that mere

possession and recovery of currency notes from an accused without

proof of demand would not establish an offence under Section 7 as

well as Sections 13(1)(d)(0) and (if) of the Act. 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. Qua Section 20 of the Act, which permits a presumption

as envisaged therein, it has been held that while it is extendable

only to an offence under Section 7 and not to those under Sections

13(1)(d)(1) and (if) of the Act, it is contingent as well on the proof of

acceptance of illegal gratification for doing or forbearing to do any

official act. Such proof of acceptance of illegal gratification, it was

emphasised, could follow only if there was proof of demand.

27

Axiomatically, it was held that in absence of proof of demand, such

legal presumption under Section 20 of the Act would also not arise.

23. The proof of demand of illegal gratification, thus, is the

gravamen of the offence under Sections 7 and 13(1)(d)(f) and (if) 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, dehors 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 Section 7 or 13 of the Act would not entail his

conviction thereunder.

32. In N.Vijaya Kumar’s case (supra), at paragraph -26, it was held as

under:

26. It is equally well settled that mere recovery by itself cannot

prove the charge of the prosecution against the accused. Reference

can be made to the judgments of this Court in C.M. Girish Babu v.

CBI and in B. Jayaraj v. State of A.P.10 In the aforesaid judgments

of this Court while considering the case under Sections 7, 13(1)(d)(i)

and (ii) of the Prevention of Corruption Act, 1988 it is reiterated

that to prove the charge, it has to be proved beyond reasonable

doubt that the accused voluntarily accepted money knowing it to be

bribe. Absence of proof of demand for illegal gratification and mere

possession or recovery of currency notes is not sufficient to

constitute such offence. In the said judgments it is also held that

even the presumption under Section 20 of the Act can be drawn only

after demand for and acceptance of illegal gratification is proved. It

28

is also fairly well settled that initial presumption of innocence in the

criminal jurisprudence gets doubled by acquittal recorded by the

trial court.

33. In Neeraj Dutta’s case (supra), the Hon’ble Apex Court in Criminal

Appeal No.1669 of 2009 by Judgment dated 17.03.2023 held as under:

10. The Constitution Bench was called upon to decide the

question which we have quoted earlier.

In paragraph 74, the conclusions of the Constitution have been

summarised, which read thus:

“74. What emerges from the aforesaid discussion is

summarised as under:

(a) Proof of demand and acceptance of illegal gratification by a

public servant as a fact in issue by the prosecution is a sine qua

non in order to establish the guilt of the accused public servant

under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

(b) In order to bring home the guilt of the accused, the

prosecution has to first prove the demand of illegal gratification

and the subsequent acceptance as a matter of fact. This fact in

issue can be proved either by direct evidence which can be in

the nature of oral evidence or documentary evidence.

(c) 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.

34. To sum-up, the prosecution has failed to prove that there is a

demand or acceptance of bribe by the accused officer. In the absence of

29

proof of demand of illegal gratification, mere recovery of currency notes on

the table in the house of the accused officer is not suffice to constitute the

offence under Section 7 of the PC Act. As such, when the prosecution is not

able to establish the proof of demand, the question of applying the legal

presumption under Section 20 of the PC Act does not arise. In the present

case, the evidence of the officials that no official favour was pending with

the accused officer as on the date of the trap coupled with the spontaneous

explanation of the accused officer and recovery of the currency notes on the

table cloth in the house of the accused would probablise the defence that

P.W.1 tried to give the amount but the accused officer rejected to receive

the same and then P.W.1 kept the same on the table cloth and in the

meanwhile, the trap party rushed to the scene. In that scenario, finding

the accused (deceased) guilty of the offence under Section 7 and 13(1) (d)

read with 13 (2) of the PC Act is not sustainable on the facts and law.

35. In the result, the Criminal Appeal is allowed. The conviction

and sentence recorded against the appellant No.1/accused (deceased) in

the Judgment dated 30.12.2008 in CC No.17 of 2006 on the file of the

Court of Special Judge for SPE and ACB Cases, Vijayawada, for the

offence under Sections 7 and 13 (1) (d) read with Section 13(2) of the

Prevention of Corruption Act, is set aside and he is acquitted for the said

offences. The accused shall be set at liberty forthwith. The fine amount, if

30

any, paid shall be returned to the Appellant No.2/wife of Appellant

No.1/accused (deceased).

Miscellaneous petitions pending, if any shall stand closed.

JUSTICE VENKATA JYOTHIRMAI PRATAPA

03.05.2024

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LR copy to be marked

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HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

Criminal Appeal No.29 of 2009

03.05.2024

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