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)
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)
