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Friday, May 8, 2015

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.

                                                                  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 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  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 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
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 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 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  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  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 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 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:
“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 9th or  10th
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 9th or 10th 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 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 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  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.
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)

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