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