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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1317 OF 2008

State of Andhra Pradesh … Appellant

:Versus:

P. Venkateshwarlu … Respondent

J U D G M E N T

Pinaki Chandra Ghose, J.

1.This appeal, by special leave, has been filed by the State of

Andhra Pradesh against the judgment and order dated

10.7.2006 passed by the High Court of Andhra Pradesh at

Hyderabad, whereby the High Court has set aside the conviction

and sentence of the respondent herein and acquitted him

allowing the criminal appeal filed by him.

2.The facts of the present matter before us are that the

accused respondent was working as Sub Registrar in the office

of Sub Registrar and Assurance, Sattypali, Khammam District.

On 18.3.1995 one Sri Burra Venkateshwara Rao, complainant,

approached the respondent to get a Will deed registered in the

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name of his wife for transfer of certain extent of land. As

alleged, the accused respondent demanded a sum of Rs.1000/-

for the said registration work. After some bargain the demand

was reduced to Rs.500/-. Since the complainant was not willing

to pay the said bribe amount, he approached the Deputy

Superintendent of Police, Anti Corruption Bureau, Warrangal

(P.W. 8) and lodged a complaint on 20.3.1995, who registered a

case in Crime No.1/ACB-WKH/95 under Sections 7 and 11 of

Prevention of Corruption Act, issued FIR and took up

investigation. Thereafter, P.W.8 requested the complainant to

come to Neeladri Guest House at Penuballi on 21.3.1995 with

the necessary amount. Accordingly the complainant along with

his friend, namely, V. Edukondalu (P.W.1), went to Neeladri

Guest House at Penuballi on a motorcycle at about 1.00 P.M.

and P.W.8 introduced the complainant to one V. Yugender

(P.W.7) and another. Thereafter, the complainant was asked to

give the money only when the officer demanded it. The trap

party consisting of P.W.8, two mediators, two inspectors and two

constables, left the Guest House in a Jeep while the

complainant, P.W.1 and P.W.2 went on a motorcycle. The raid

party stopped the Jeep at a little distance from the office of the

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respondent at Sattupally. The complainant and P.W.1 went to a

hut situated within the premises of Sub Registrar’s office, where

the complainant collected the Will document prepared by P.W.5

N.V. Chalapathi Rao, the document writer and stamps necessary

for registration from P.W.4 B. Lakshmaiaha, the stamp vendor.

Before handing over the Will document to the complainant,

attestation was obtained from P.Ws. 1 and 2. Later on the

complainant along with P.Ws. 1 and 2 went to the office of the

respondent and gave the Will deed to the respondent, who after

examining the Will deed, obtained the signatures of P.W.1, P.W.2

and P.W.3 K. Srinivas Rao, who were present there. When the

complainant enquired about the registration fee of the

document, the respondent said it would amount to Rs.81/-. The

complainant took out Rs.81/- from inner pocket of his banian

(vest) and gave it to respondent, who placed it in the table

drawer. Thereafter, he prepared a receipt and handed it over to

the complainant. It was subsequently alleged that the

respondent demanded the bribe of Rs.500/- and that the

complainant took out the tainted amount from his shirt pocket

and gave it to the respondent, who kept the amount in the table

drawer. Then P.W.1 came out of the office and gave the

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pre-arranged signal, pursuant to which the trap party entered

into the office and P.W.8 - the Deputy Superintendent of Police

(ACB) asked the respondent whether he has received the bribe

amount to which the respondent denied. Then the

phenolphthalein test was performed on fingers of both the hands

of the respondent and the test on the right hand fingers proved

positive. The respondent denied having received any bribe even

when he was so asked by the mediators. On instructions of

P.W.8, the mediators searched the right side drawer of the office

table of the respondent and found three batches of currency

notes in it, out of which one bundle containing currency notes of

Rs.500 and Rs.100 denominations, tallied with the numbers

noted by the mediators. The other bundle of Rs.9000/- was

given account according to the records. An amount of Rs.9.50

paise was found in the drawer which was left by the customers

due to non availability of change. Again on being asked, the

respondent said that he did not know who kept the amount in

the drawer. Post trap Panchnama was prepared and the

respondent was arrested and released on bail. After completion

of investigation, the Inspector of Police filed the charge-sheet.

During the pendency of the trial, the de facto complainant Burra

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Venkateshwar Rao died on 10.6.1997.

3.In the Court of the Principal Special Judge for SPE & ACB

cases, at Hyderabad, the learned judge after considering the

material facts and evidence, found the accused guilty under

Sections 7 and 13 (1)(d) read with Section 13 (2) of Prevention of

Corruption Act. He was awarded conviction under Sections 7

and 13 (1)(d) read with Section 13 (2) of Prevention of Corruption

Act and sentenced to suffer rigorous imprisonment for one year

under each count and also to pay a fine of Rs.1000/- under each

count, and in default, he would suffer simple imprisonment for

2 months.

4.On appeal by the respondent before the High Court, the

learned Single Judge was of the view that the lower Court erred

in coming to the conclusion that the accused was guilty of the

offences under the above mentioned Sections of the Prevention

of Corruption Act and the conviction and sentence imposed on

the accused by the Court below were set aside and the accused

was acquitted of the charges against him. The reasons adduced

by the High Court for acquitting the accused respondent are as

follows: The High Court disbelieved the testimony of P.W.1 as

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truthful. The High Court considered the theory of the defence

that the document writer had foisted a false case, from the cross

examination of P.W.1 and came to the conclusion that Chepu

Chennaiah had visited the room of the Public Prosecutor.

Another circumstance was that the prosecution did not record

the statement of the so called complainant under Section 164

Cr.P.C. The prosecution got the statement of P.W.1 recorded, but

not that of the complainant, under Section 164 Cr.P.C. However,

the High Court noticed that it was not imperative in the instant

case. The alleged trap was dated 21.3.1995 and the complainant

died on 10.6.1997. Thus, the prosecution cannot take the plea

that the complainant was not available for the recording of

statement under Section 164 Cr.P.C. Another circumstance

favouring the accused as noticed by the High Court was that

whether it was necessary for the complainant to execute a Will

in favour of his wife. The High Court was of the view that the

complainant was a petty vendor, having no legal heirs, with only

a second wife. In such a situation the property would

automatically devolve upon her and there was no necessity to

execute a Will deed. The Court was of the view that the positive

result of the phenolphthalein test was not enough to hold the

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accused guilty. The High Court observed that it was not

disputed that the complainant was carrying one set of amount in

his banian pocket and the other in his shirt pocket. So the

possibility of his touching the tainted currency notes at the time

of taking out the registration amount could not be ruled out.

5.We have heard the learned counsel appearing for the State

of Andhra Pradesh as also the learned counsel appearing for the

respondent.

6.Learned counsel appearing for the State of Andhra Pradesh

contended before us that it was evident that P.W.1 accompanied

the complainant to the place where the trap was laid. In

addition, he narrated the events in sequence and his evidence

was corroborated with the evidence of P.W.2 and other

witnesses. The suggestion made by the accused respondent that

P.W1 and P.W.2 were set up by Chepu Chennaiah and

Nageshwar Rao was wrong, as nothing was elicited from their

cross examination. As per the prosecution, the High Court in the

impugned judgment had given more weightage to the evidence of

defense with regard to cancellation of the license of document

writers than the evidence of prosecution with regard to the test

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conducted by P.W.8. Also the High Court failed to appreciate

that non-recording the statement of the complainant under

Section 164 is not fatal to the case of the prosecution. The High

Court also failed to appreciate that the evidence of D.W.1 and

D.W.2, who are subordinates to the accused respondent, would

naturally be in support of their colleague.

7.Learned counsel appearing for the respondent, on the other

hand, argued that mere recovery of money by itself cannot prove

the charge of the prosecution against the accused respondent in

the absence of any evidence to establish payment of bribe or to

show that the accused respondent voluntarily accepted the

money. The positive phenolphthalein test is not the conclusive

proof that the accused respondent took the bribe. The learned

counsel cited a number of cases in support of the respective

contentions raised by them. In addition, it was submitted that

the complainant in a trap case stands in the position of an

accomplice and his evidence cannot be accepted without

corroboration.

8.We are of the opinion that the case of the prosecution

depends on the testimonies of P.Ws.1, 2, 7 & 8. P.Ws. 1 and 2

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are alleged to be the eyewitnesses for the demand and

acceptance of the tainted money. P.Ws.7 and 8 are the mediators

and Head of the raiding party that recovered the money from the

table drawer in the office of respondent. The evidence of P.W.1

makes it clear that on 21.3.1995, he went to the house of the

complainant where he was informed that the de facto

complainant had given a complaint against the A.O. for

demanding a sum of Rs.500/-. Both of them went to the

Penuballi Guest house, where they were introduced to the

mediator (P.W.7) by the D.S.P. (P.W.8) and was given

instructions regarding the trap. His evidence further showed

that after the Will was presented and registration fee paid, the

A.O. demanded from the de facto complainant to pay the bribe

amount. From the evidence of P.W.2, it becomes clear that on

21.3.1995, he went to the office of the M.R.O. on account of

personal work and was reckoned by Bora Venkateshwara Rao

and P.W.1 to attest the Will Deed. His evidence further goes to

show that he accompanied P.W.1 and de facto complainant to

the office of the A.O. where he witnessed that the A.O. firstly

collected the registration fee of Rs.81/- and later demanded and

accepted the tainted amount. He has thus fully corroborated the

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evidence of P.W.1 on the question of presence, on the question of

signing as identifying witness and also on the fact of demand

and acceptance of the tainted money.

9.Coming to the testimonies of P.W.7 and P.W.8, their

testimonies fully corroborate the testimony of P.W.1. The

testimonies of the material witnesses have been fully

corroborated and we find them to be trustworthy. The

Phenolphthalein test goes further to prove that there was

demand and acceptance of the tainted money. The recovery of

the tainted money has gone unchallenged by the accused

respondent. Thus, we find that the High Court has wrongly

disbelieved the testimony of P.W.1.

10.We are aware of the position in law, as laid down in cases

involving the relevant provisions under the Prevention of

Corruption Act, that mere recovery of the tainted amount is not

a sine qua non for holding a person guilty under Sections 7, 11

and 13 of the Act. This Court has observed in Narendra

Champaklal Trivedi Vs. State of Gujarat , (2012) 7 SCC 80,

that there has to be evidence adduced by the prosecution that

bribe was demanded or paid voluntarily as bribe. The demand

and acceptance of the amount as illegal gratification is a sine

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qua non for constituting an offence under the Prevention of

Corruption Act. The prosecution is duty bound to establish that

there was illegal offer of bribe and acceptance thereof and it has

to be founded on facts. The same point of law has been

reiterated by this Court in State of Punjab Vs. Madan Mohan

Lal Verma, (2013) 14 SCC 153. In the present case the factum

of demand and acceptance has been proved by the recovery of

the tainted amount and the factum of there being a demand has

also been stated. The essential ingredient of demand and

acceptance has been proved by the prosecution based on the

factum of the case. It has been witnessed by the key eye

witnesses and their testimonies have also been corroborated by

other material witnesses. The offence under Section 7 of P.C. Act

has been confirmed by the unchallenged recovery of the tainted

amount. Thus, it is our obligation to raise the presumption

mandated by Section 20 of P.C. Act. It is for the accused

respondent to rebut the presumption, by adducing direct or

circumstantial evidence, that the money recovered was not a

reward or motive as mentioned under Section 7 of the P.C. Act.

11.In C.M. Girish Babu Vs. CBI, Cochin, High Court of

Kerala, (2009) 3 SCC 779, this Court stated:

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“It is well settled that the presumption to be drawn

under Section 20 is not an inviolable one. The

accused charged with the offence could rebut it either

through the cross-examination of the witnesses cited

against him or by adducing reliable evidence. If the

accused fails to disprove the presumption the same

would stick and then it can be held by the Court that

the prosecution has and then it can be held by the

court that the prosecution has proved the accused

received the amount towards gratification.”

In the instant case, the defense has raised various presumptions

to disprove the prosecution case. However, it has not been able

to adduce evidence before us, on the basis of which the

presumption under Section 20 of P.C. Act could be rebutted.

12.On the question of demand, learned counsel for the

respondent stated that the allegations in the complaint with

regard to prior demand were false as the A.O. was on election

duty on 9.3.1995 and 10.3.1995. The defense contended that

the bribe was made for the first time on 9

th

or 10

th

of March 1995

as alleged in the complaint. The defense has tried to take the

plea of alibi. However, in the complaint the exact date of visit is

not mentioned. On the basis of an approximation, we cannot

assume that the demand was made on 9

th

or 10

th

of March,

1995. The facts of the case also bring to light that the

complainant went to the office of the accused on 18.3.1995, he

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again went to the office of the A.O. and as a result the demand

was reduced from Rs.1000/- to Rs.500/-. This Court has

observed in Jitendra Kumar Vs. State of Haryana , (2012) 6

SCC 204, that “the plea of alibi in fact is required to be proved

with certainty so as to completely exclude the possibility of the

presence of the accused at the place of occurrence and in the

home of their relatives.” The accused has neither taken the plea

of alibi for the visit on the 18.3.1995 and nor has proved the

factum of not being present on the first date when the alleged

demand was made, beyond all doubt. Therefore, we are of the

view that the probability of his not being present cannot be

considered.

13.One of the suggestions given by the accused respondent is

that the entire trap was laid down due to the inimical relations

with document writers, Chepu Chennaiah and his son-in-law

Nageshwar Rao. The defense also suggests that the complainant

was a petty vendor who has no children and the second wife

alone is in existence, and therefore, execution of the Will Deed

was not required. Another possibility as stated by the defense

was that the complainant was carrying two sets of amounts, one

in his banian pocket and other in the shirt pocket. The amount

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of Rs.81/- he was carrying in the banian pocket, whereas the

tainted amount he was carrying in the shirt pocket and he could

have touched the tainted amount at the time of taking out the

registration fee. The suggestion as to Nageshwar Rao and Chepu

Chennaiah setting up the trap to implicate the accused seems to

be very farfetched. All the remaining above mentioned

suggestions are not adduced by any direct or circumstantial

evidence, as required under law.

14.Thus, the accused respondent has not successfully

rebutted the presumption under Section 20 of the P.C. Act. The

prosecution, on the other hand, has established the demand and

acceptance of the tainted money. The recovery also has gone

unchallenged. Therefore, we strike down the order of acquittal

passed by the High Court in Criminal Appeal No.149 of 2000.

We restore the judgment and order dated 24.1.2000 rendered by

the Principle Special Judge for SPE & ACB cases, City Civil

Court, Hyderabad, in C.C. No.10 of 1996, convicting the accused

respondent under Sections 7 and 13(1)(d) read with Section

13(2) of P.C. Act and sentence him to suffer one year rigorous

imprisonment under each count and also to pay a fine of

Rs.1000/- under each count, in default to suffer simple

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imprisonment for two months under each count. Both the

substantive sentences are to run concurrently. This appeal is

accordingly allowed.

….....….……………………J

(Pinaki Chandra Ghose)

….....…..…………………..J

(Uday Umesh Lalit)

New Delhi;

May 06, 2015.

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ITEM NO.1A COURT NO.11 SECTION II

(for Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1317/2008

STATE OF A.P. Appellant(s)

VERSUS

P.VENKATESHWARLU Respondent(s)

Date : 06/05/2015 This appeal was called on for pronouncement of

judgment today.

For Appellant(s) Mr. S. Udaya Kumar Sagar, Adv.

Mr. Krishna Kumar Singh, Adv.

Mr. D. Mahesh Babu, Adv. (NP)

For Respondent(s) Ms. T. Anamika, Adv.

Mr. B.V. Chandan, Adv.

Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the

reportable judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice Uday Umesh Lalit.

The appeal is allowed in terms of the signed reportable

judgment as follows:-

“ Thus, the accused respondent has not successfully rebutted

the presumption under Section 20 of the P.C. Act. The

prosecution, on the other hand, has established the demand

and acceptance of the tainted money. The recovery also has

gone unchallenged. Therefore, we strike down the order of

acquittal passed by the High Court in Criminal Appeal No.149

of 2000. We restore the judgment and order dated 24.1.2000

rendered by the Principle Special Judge for SPE & ACB cases,

City Civil Court, Hyderabad, in C.C. No.10 of 1996,

convicting the accused respondent under Sections 7 and 13(1)

(d) read with Section 13(2) of P.C. Act and sentence him to

suffer one year rigorous imprisonment under each count and

also to pay a fine of Rs.1000/- under each count, in default

to suffer simple imprisonment for two months under each

count. Both the substantive sentences are to run

concurrently. This appeal is accordingly allowed.”

(R.NATARAJAN) (SNEH LATA SHARMA)

Court Master Court Master

(Signed reportable judgment is placed on the file)