Criminal Appeal No. 49 of 2014 · The High Court · 2025

Judgment

This Criminal Appeal is filed under Section 37 4(21 of Cr.P.C., by the appellant/accused aggrieved by the conviction and sentence awarded to him by the learned II Additional Special Judge for SPE & ACB Cases, Hyderabad vide judgment dated 31.12.2013 in CC No.43 of 201O, wherein the appellant was found guilty and was sentenced to undergo rigorous imprisotrment for six months and to pay a fine of Rs.2,0OO/ -, in default to suffer simple imprisonment for three months for the offence punishable under Section 7 of Prevention of Cormption Act, 1988 (PC Act) and further to undergo rigorous imprisonment for one year, to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act.

2. Heard Sri Mummuneni Srinivasa Rao, learned counsel for the appellant and Sri Sridhar Chikyala, standing counsel and special public prosecutor for ACB/respondent.

3. CC No.43 of 2O 10 is a case registered basing on Ex.Pl complaint of de-facto complainant Sri B.Srinivas/PW 1 dated

16. 1 1.2OO5 alleging that the appellant/accused while working as Forest Range Officer in Flying Squad Party-ll, Khammam in the oflice of Divisional Forest Ofhcer, oD 10.1 1.2OO5 while PWl was Pase 2 ol l8 transporting firewood in his tractor and trailer without permit, he was intercepted by the Flying Squad lead by the appellant and the stocks therein were seized and accordingly, the Divisional Forest Officer/ PW8 imposed a compounding fee of Rs.7,752/- vide proc;edings under Ex.P2 and directed PWl to remit the same with the appellant, who demanded PWl to pay an illegal gratification of Rs.S,0OO/- to release the tractor and trailer. Further, reluctant to pay such an illegal gratihcation, PWl lodged Ex.P1 complaint, with the ACB accordingly, PW11 registered Ex.P17 FIR in Crime No.8/ACB-WKHI2OOS and after securing presence of PW4 and one B.Venumadhav, the mediators, and after completing all the procedural formalities laid trap on 18. 11.2OO5 against the appellant and caught hold him while demanding and accepting Rs.5,000/- /MOs. It is alleged that the tainted currency notes / MO5 were recovered from the pants' pocket of the appellant and chemical test conducted yielded positive result.

4. The prosecution, to substantiate its case against the appellant/ accused, apart from examining the de-facto complainant as PW1 also examined PWs.2 to 13, exhibited documents under Exs.Pl to P18 and material objects MOs.1 to 8

5. The appellant while denying the allegations levelled against him, vehemently contended that he never demanded bribe from PW1, without verifrcation of antecedents of the appellant and PWl, the- .^ I E I I l Page J oi l8 ACB offrcials have registered the crime, the accompanying witness/PW2 is a friend of PW1, tainted currency notes were recovered from his table draw but not from his possession, Rs.5,000/- i.e. the tainted currency notes were given towards compounding fee imposed on PW 1 in connection with his illegal transportation of lirewood in tractor and trailer, he had issued receipt for said Rs.5,000/- to PWl in token of receipt of compounding fee, he was not competent either to reduce the fine amount or to release the vehicle, there was no motive for demand or acceptance of bribe and that he retired from service with cardiac ailment. In support of his defence, the appellant/accused examined DW1, who drives an auto zind was caught by the appellant while transporting some type of wood without permit. DWI stated that he was imposed with fine of Rs.13,500/- and after paying the same the appellant issued Ex.D1 receipt and after such payment, the appellant released his auto without demanding any bribe. On behalf of the appellant/accused Exs.Dl, D1(a), D2 and D3 were marked.

6. The trial Court, after completion of procedural aspects as well as trial, found the appellant/accused guilty for the offenbes under Sections 7 arrd t3(21 read with Section 13(1Xd) OF PC Act and sentenced him as stated supra holding t-hat the versions put forth by the appellant/ accused are inconsistent since with regard to possession of tainted currency, he offered different and unbelievable_ .J.,J I I I I I Page 4 of l8 versions and that once the recovery of tainted currency from a public servant is established by the prosecution, the Court has no choice except to draw an inference that the accused received the same as illegal gratification for extending official favour and in the case on hand, the appellant/accused failed to rebut the said inference drawn against him by adducing cogent and acceptable explanation and on the other hand, the prosecution has successfully established its case by adducing oral and documentary evidence.

7. Aggrieved by the said findings of the trial Court, the appellant/ accused preferred the present criminal appeal mainly contending that the trial Court, without appreciating the evidence available on record and law laid down, had erroneously found the appellant guilty and failed to consider the fact that Ex.Pl was drafted by PW3 but not PWl and PWl, without going through the contents therein or having heard the same, had signed the same, failed to consider the fact that PW 1 while giving his statement before the learned Additiona-l Sessions Judge under Section 164 of Cr.P'C. did not mention with regard to demand of illegal gratilicalion by the appellant, basing on the interested witness/ PW2 has erroneously found the appellant guilty. Trial Court failed to consider the discrepancies in the prosecution witnesses and also failed to consider the fact that the tainted currency notes were recovered in a paper on the table of the appellant. The trial Court failed to take into consideration the -Iact _- I)age 5 of l8 ,//' that appellant was not competent person to do official favour in favour of PWl. While submitting above, the learned counsel for the appellant relied upon the decision of this Court rendered in Criminal Appeal No. 150 of 20 13 wherein this Court by taking into consideration the mental agony suffered by the accused therein during the period of pendency of litigation, took a lenient view in his favour by decreasing the sentence of imprisonment imposed by the trial Court against the accused by restricting the same to the period which he had already undergone.

8. On the other hand, learned standing counsel and special public prosecutor for respondent/ACB vehemently opposed the present criminal appeal mainly contending that after .meticulously screening the entire evidence available on record only the trial Court found the accused guilty and hence, there is no need or necessitlz to interfere with such well considered findings. The grounds urged through this criminal appeal are nothing but repetition of the contentions advanced on behalf of the appellant/accused before the trial Court and they have already been alswered by the trial Court while adjudicating CC No.43 of 20 10

9. The powers of an appellate Court are as wide as o[ trial court and the appellate Court can review whole evidence and all reievant circumstances to arrive itt its own conclusion about the guilt or innocence of the accused. But where two views are pgssible on the '-) i II same evidence and the findings recorded by the trial Court are not pervers'e, appellate Court should not interfere with the findings of the trial Court. The appellate Court can re-appreciate the entire evidence on record. The appellate Court should normally give due weight to the decision of the trial Court. Keeping in view the said settled proposition of law, this Court perused the entire material, evidence available on record and submissions made on either side'

10. PW 1 is the de-facto complainant, who lodged complaint complaining with regard to the demand of the appellant/accused for illegal gratification for releasing his tractor and trailer. PW2 is the friend of PW1 and accompanied PWl during the trap proceedings' PW3, a practicing advocate, drafted Ex.Pl complaint upon the request of PWl. PW4 is one of the mediators to the trap proceedings' PW5 is a villager of Paleru and he deposed that on 16.11.2005 the appellant came to his work place and by introducing himself asked about PW1 and accordingly, PWS showed the residence of PWl' PW6 worked as watchman at Kunavaram Forest Guest House and he deposed basing on Ex.P13 forest guesthouse register that on 18.11.2005 the appellant visited their guesthouse and stayed in a room viz. Shabari and during his stay two new strangers came to the appellant and after having a chat, they went away. PW7 worked as Senior Assistant in the Flying Squad Division in the oflice of DFO, Khammam and he deposed with regard to seizure of f -t-ra and also the hrewood and issuance of notice to PWl by DFO/PW8 under BxP2 ordering for compounding fee. During cross- examination, PWs.7 and 8 admitted that DFO/PW8 was the competent person to impose compounding fee but the appellant/ accused was not competent in that aspect and tJ:at without payment of compounding fee, the appellant has no power to release the vehicle. He further deposed regarding Ex.P7 evidencing remittance collection of compounding fee. PW8 worked as Divisional Forest Officer, Flying Squad, Khammam and he deposed regarding Flying Squad intercepting PW1 a-nd seizure of tractor and also the firewood and upon enquiry, his issuance of Ex.P2 for collecting compounding fe e from the offender/ PWI . Ex.P3 is the receipt of compounding fee. Ex.PlS is the endorsement on Ex.P2 made by the appellant stating that he had collected a sum of Rs.7,752/- as compounding fere. PW8 during cross-examination admitted that the accused was not competent to reduce the compounding fee fixed by PWS and that PWS himself is only authorized and competent to order for release ol tractor and wood and the Forest Section Officers also can collect tJ.e compound fee and that the offender cannot remit the amount in the office of PW8. PW9 identified the signature of the sanctioning authority viz. Smt.Janaki R.Kondapi, Principal Secretary on Ex.P16, which was issued to prosecute the appellant for the offences under Sections T, 13(21 read with Section 13(lxd) of pC Act. I Pagc 8 of 18 PWlO worked as Forest Beat Ofhcer, Flying Squad - 2, headed by the appellant and he deposed with regard to seizure of tractor and trailer and also the firewood transported by PW1 and registration of complaint. Ex.P9 is the carbon copy of the case registered by the appellant. He also deposed with regard to production of the said tractor and wood with DFO Office, Khammam and stay of appellant in Kunavaram Forest Guesthouse on 18.11'2005' PW10. also deposed that the Forester can also collect the compounding fee' PWl1 worked as Dy.SP, ACB, Warangal arrd registered Ex'P17/ FIR basing on the contents of Ex.Pl complaint lodged by PW1 against the appellant and after securing the independent witnesses, he laid trap against the appellant. PW12 worked as Inspector of Police, ACB' Khammam and on the date of trap, he assisted PWl1 and after laying trap, he took up the investigation from PWl1 and laid charge- sheet. PW13 worked as Divisional Engineer, Cellone, Hyderabad and deposed that on the request of Joint Director of ACB, then Joint Telecom Officer furnished call date information regarding cell phone bearing Nos.944O81O351 and 986624a216 under Ex'P18'

11. When the evidence of prosecution witnesses is perused, PWs l' 2, 4 and 11 are relevant to know the things transpired prior to trap and post trap. Their evidence goes to show that upon receipt of Ex.P1 complaint dated 16.11.2OO5, PWl1, registered Crime No.S/ACB/WKHI2OOS for the offence under Section 7 of PC "19"9 a I I i l secured the presence of PW4 and one Sri B.Venu Madhav, introduced PWl to the mediators, who have gone through the contents of Ex.Pl, upon production of Rs.7,7521- and Rs.5,000/- by PWl separately, PWl1 demonstrated the significance of phenolphthalein powder and sodium carbonate solulion with the help of his staff, noted down the serial number of the tainted curency notes, got smeared Rs.5,OO0/- with phenolphthalein powder and kept the same in the shirt pocket of PWl and another amount of Rs.7,7521-, meant for pa5rment of compounding fee was also kept in the shirt pocket of PWI by keeping a cardboard sheet piece between both the amounts. PW11 instructed PWI first to hand over Rs.7,752/- to the appellant/accused and upon his demand only to hand over the tainted currency notes of Rs.5,0OO/-. PWl 1 also instructed PW1 to give a pre-arranged signal by wiping his frrce with his handkerchief once the appellant accepts the bribe amolrnt. When PWll instructed PWl to take one of the witnesses as ar1 accompanying witness, PW1 stated that he brought his friend/PW2 and he would take him. Accordingly, PW11 instructed PW2 to accompany PW 1 and observe the things to be transpired betrveen PWl and the appellant. By reducing -these into writing in the form of 1"t mediators' report/Ex.P5, the trap team lead by PW1I proceeded to the oflice of appellant and reached Kunavaram Village at O3.OO P.M. on 18.1 1.2005. Upon reaching the office of the appellant, PWs. I and 2 entered the office of appellaet and the other trap party members took vantage positions in and around the forest guesthouse under the shade of bushes arld were waiting for the signal.

12.. PW1 stated that when they entered the guesthouse, the appellant upon seeing PWs.l and 2 asked them as to whether they brought the bribe amount of Rs. I3,O00/- then PWI explained his inability of bringing such huge amount and requested to take the demanded amount of Rs.5,000/- and tendered first Rs'7,752/- towards compounding fee and then halded over tainted currency' which the appellant received and kept the compounding fee amount in his right side shirt pocket and the tainted currency notes of Rs.S,OOO/- in his left side parts' pocket- After obtaining receipt (Ex.P3) for Rs7 ,7521- paid towards compounding fee with the endorsement (Ex.P2) of appellant on the copy of proceedings to release the vehicle, PWs. 1 and 2 came out and PW1 relayed the pre- arranged signal by wiping his face wit-h handkerchief and upon observing the same, the trap team rushed to the guesthouse and then PWl showed the appellant/accused.

13. Evidence of PW I 1 / trap laying officer goes to show that himself and mediators, upon reaching the appellant, introduced themselves and upon knowing their identity, the appellant became shivered for a while. PW 1 I questioned the appellant whether he received the tainted cur{gng notes to which, hrst he replied that he just received Page ll of l8 compounding fee amount but later admitted his receipt of the said tainted currency notes and handed over the same. The mediators counted and compared the serial numbers of the tainted currency notes with the numbers already mentioned in Ex.PS first mediators report and declared that both are tallying. The chemical test conducted on the fingers of the appellant and his pants' pockets yielded positive result. The solutions were seized and secured in two I separate bottles, sealed them and slips containing the signatures of both the mediators were affixed to them. The pants of the appellant were also seizecl. After completion of post-trap proceedings under Ex.PI2, PWl l seized relevant records and concluded the proceedings. Thereafter, investigation was took up by PW12, who, upon examining the relevant witnesses and collecting the documents, laid charge-sheet for the offences punishable under Sections 7 and 13(2) read with Section 13(1Xd) of PC Act.

14. The learned counsel for the accused tried to convince the Court by relaying on the evidence of PWs.7 and 8 that the appellant/accused was not a competent person to reduce the compound fee or release tl.e vehicle on his own accord arid that the appellant is empowered only to collect the compounding fee and to make an endorsement on the proceedings to release the vehicle.

15. Learned counsel for the appellant further tried to convince the Court b5r stating that during cross-examination pWl 1 the trap_laying Pagc 12 of lE officer admitted that he did not seize the cardboard piece allegedly used to separate the compounding fee amount and intended bribe amount, both kept in the shirt pocket of pW1 and that the amounts were not kept in any cover. The trap laying officer denied the possibility of transferring phenolphthalein ions from tJle tainted amount to the compounding fee amount. He also denied the suggestion put to him by the learned counsel for the appellant/ accused that without there being any motive for doing official favour, to implicate the public servant who was discharging his official duty of collecting compounding fee, by misleading the ACB officials, pWl implicated the appellant in the present case. pW11 admitted that he did not send the resuitant solution for chemical test. pW12 the investigating officer, during his cross-examination, admitted that none of the witnesses examined by him stated that the appellalt/accused is competent to release the vehicle. He further admitted that even the sanction order/Ex.p16 does not reflect the motive of the appellant for committing the offence. He further admitted that the appellant/accused was not competent to release the vehicle. There is no whisper in the entire record regarding seizure of Rs.7,752/- impounding hne amount by the trap-iaying officer. Admittedly, except PW1, no witness is available on record to prove the alleged demand of bribe by the appellant. Though the mediators were made available, why the trapJaying oflicer agree_d__ Page 13 of l8 PW2 for accompanying PW1 to the trap is a suspicious thing since PW2 is a friend of PWl and an interested witness' Basing on the above factual aspects, the learned counsel for the appellant vehemently contended that the prosecution failed to establish its case beyond all reasonable doubt and hence, the accused is entitled for acquittal but the trial court without looking into those factual aspects, has erroneously convicted the accused'

16. The law is well settled that demand of illegal gratification is sine-qua-non for constituting an offence under the Act' Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was I taken voluntarily as bribe. Mere receipt of amount by the accused is not sufhcient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money wAs accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Seclion 20 of the *Act, th. Court iryeguired to consider the explanation offered by the accused, if any, only on the touchstone of preponderance ef I'age l4 ol l8 probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisal witness concerned witl'r the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the Court may look for independent corroboration before convicting the accused person. 77- Furthermore, pendency of oflicial favour, to be extended to the de-facto complainant, is another crucial aspect to be established by the prosecution against the accused. In the case on hand, PWs.7 and 8, who are the prosecution witnesses, clearly deposed that the appellant/accused was not a competent person to reduce the compounding fee or to release the vehicle on his own accord and that the appellant is empowered only to collect the compounding fee and to make an endorsement on the proceedings to release the vehicle. In that view of the matter, the crucial edifice of case of the prosecution that the appellant/accused demanded an illegal gratification for doing an official favour, pending with him, to the de- facto complainant appears to be watered down.- - Page l5 ol l8

18. In the instant case, the foundation of the prosecution case of the demand made by the appellant for bribe to extent offrcial favour in favour of PWl has, as observed already, been shaken to a great extent. In any event, it casts a grave doubt on the events that were alleged to have taken place in the matter of pre-trap proceedings' giving bribe to the appellant and recovery of bribe money from the appellant. The version of the prosecution, as to demand and receipt of the bribe money, as narrated by the prosecution witnesses' is suspicious and does not inspire any confidence' Serious doubts arise as to the manner in which bribe was stated to be demanded, offered and received, as also to the place where the offer and receipt took place. The prosecution has miserably failed to prove the foundational facts, viz. demand, acceptance and recovery of the amount of illegal gratification, beyond all reasonable doubts. When the Prosecution is not able prove its case by proving the foundational facts, it cannot take advantage that the appellant/ accused has not come out with a probable explanation in defence. Therefore, this Court is of the opinion that the Prosecution has not been able to prove the guilt of the Appellant beyond all reasonable doubts. lg. As already discussed above, the entire circumstances, under .which the case was stated to be registered, the trap witnesses being summoned even prior to the registration of the case, the bribe is alleged to be accepted by the accused, are highly suspicious and I Page l6 of 18 shrouded with doubts and as such, it is diffrcult to sustain the conviction on the basis ofsuch dubious evidence.

20. In view of the above inlirmities and inherent improbabilities, this.,Court has to necessarily come to the conclusion that the entire trap proceedings was bristled with suspicious circumstances and doubts, as the prosecution, before raising presumption under Section 20 of the Prevention of Corruption Act, 1988, has miserably failed to establish the foundational facts regarding guitt of the accused by cogent evidence, whereas the Appellant has rebutted such presumption by preponderance of probabilities and thereby, the Appellant is entitled to be acquitted.

21. When the evidence adduced by the prosecution is scrutinized, it can be safely held that the prosecution failed to prove the pendency of officia-l favour with the accused to extend the same to the complainant by collecting illegal gratification. The prosecution witnesses i.e. PWs.7 and 8 during their cross-examination have admitted that DFO/PWS was the competent person to impose compounding fee but the appellant/accused was not cqnpetent in that aspect and that without payment of compounding fee, the appellant has no power to release the vehicle. PW8 during cross- examination admitted that the accused was not competent to reduce the compounding fee fixed by PW8 and that PW8 himself is only authorized and competent to order for release of tractor and wood. Page 17 of lE There is no whisper in the entire record regarding seizure of Rs.7,752/- impounding fine amount by the trap-laying officer. Admittedly, except PW1, no witness is available on record to prove the alleged demand of bribe by the appellant. As pointed out by learned counsel for the appellant it is another flaw on the part of the prosecution in allowing PW2 to accompany PWI during the course of trap proceedings though the mediators were made available. Further though the trap laying officer denied the possibility of mixing both the tainted amount and compounding fee amount and transfer of phenolpht-halein powder from the tainted currenclr notes to compounding l-ee amount, he admitted that he did not seize the cardboard piece allegedly used to separate the compounding fee amount and intended bribe amount, both kept in the shirt pocket of PWl.

22. All the above factual matrix makes the prosecution case unbelievable and the tria,l Court miserably failed to take into consideration the above facts while coming to the conclusion that the accused/appellant is guilty. In that view of the matter, this Court is of the considered opinion that the prosecution failed to prove the guilt of the appellant/accused beyond all reasonable doubt and hence, the accused is entitled for acquittal from the cErges with which he was charge-sheeted. -.... 1 Page l8 of l8

23. In the result, the present criminal appeal is allowed. Resultantiy, the hndings of the learned II Additional Special Judge for SPE & ACB Cases, Hyderabad dated 31.12.2OI3 in CC No.43 of 2OlO are hereby set aside acquitting the appellant/accused for the offences punishable under Sections 7 and 13(2) read with 13(1) of Prevention of Corruption Act, 1988 arrd the bail bonds of the accused, if any, shall stand cancelled. The appellant/accused is entitled for refund of fine amount paid by him in the trial Court. Material objects are directed to be destroyed and tainted currency shall be conhscated to the State after appeal time is over in accordance with law.

24. Consequently, the miscellaneous applications if any pending shall stand cancelled. Sd/- C.V. MALLIKARJUNA VARMA A{)INT REGISTRT--,/ //TRUE coPY// N\-.__- V seclot't oFFlcER To, (With records)

1. The ll Additional Special Judge for SPE and ACB Cases at Hyderabad' z ine tnspector of Police' Anti Corruption Bureau' Khammam' Warangal g. one-Cc to Sri tvlummuneni Srinivasa Rao, Advocate [OPUC] ; # icrto Sri Sridhar Chikyala' Standing Counsel and S-pecial Public Range. P rosecutor for AC B/res po nd e nt fORsS!-'o \r-I)

5. Two CD CoPies DUgh ({ HIGH COURT DATED:20/0212025 JUDGMENT CRLA.No.49 of ?-014 ALLOWING THE CRIMINAL APPEAL g@Pf"[ t6a' 1 !,,F- S T.,l i' 2 4 tqAi ?u5 c f, ,. D asn".' ar' r.O