MIR MUSTAFA ALI HASMIversusTHE STATE OF A.P.

                 [2024] 7 S.C.R. 640 : 2024 INSC 503

                          Mir Mustafa Ali Hasmi
                                   v.
                            The State of A.P.
                    (Criminal Appeal No. 2845 of 2024)
                                 10 July 2024
                [B.R. Gavai and Sandeep Mehta,* JJ.]

                           Issue for Consideration
       The question arose whether the prosecution was able to prove
       beyond all manner of doubt the fact that the appellant demanded
       and accepted bribe from the complainant; and whether the courts
       below were justified in convicting and sentencing the appellant for
       offence punishable u/ss.7 and 13(1)(d) r/w 13(2) of the Prevention
       of Corruption Act, 1988, for the demand and acceptance of illegal
       gratification.

                                  Headnotes†
       Prevention of Corruption Act, 1988 – ss. 7 and 13(1)(d) r/w
       13(2) – Demand and acceptance of illegal gratification –
       Prosecution case that the the appellant-Forest Section
       Officer and the co-accused-Forest guard demanded and
       accepted bribe from the complainant who operated a saw-
       mill – Complaint filed by the complainant to the DySP, alleging
       that the flying squad led by the appellant imposed a fine of
       Rs.50,000/- on his saw mill in relation to the recovery of illegal
       and unlicensed teakwood in the saw-mill – Next week, the
       appellant and the Forest guard again demanded a monthly
       amount of Rs.5,000/- to refrain from taking any further action
       on the saw-mill – DySP organized the pre-trap proceedings,
       wherein the appellant demanded and accepted the bribe
       amount from the complainant – Conviction and sentence of the
       appellant and the co-accused u/ss. 7 and 13(1)(d) r/w 13(2) by
       the trial court – High Court acquitted the co-accused whereas
       upheld the order as regards the appellant – Correctness:
       Held: Grave suspicion on the prosecution case that the appellant
       demanded the bribe money from the complainant – Prosecution
       miserably failed to prove the factum of demand of bribe against the
       appellant by reliable direct or circumstantial evidence – Allegation
       regarding acceptance of bribe by the appellant is primarily based
* Author
[2024] 7 S.C.R.                                                              641

                Mir Mustafa Ali Hasmi v. The State of A.P.


     on the evidence of the complainant, PW-2 and DySP whereas the
     complainant and PW-2 being close friends, it can safely be assumed
     that PW-2 was an interested witness – No satisfactory evidence
     on record to establish that the appellant had actually handled
     the tainted currency notes as claimed by the complainant – No
     justification for the DySP to have straight away register the FIR
     on the mere ipse dixit of the complainant and to have planned
     the trap proceedings without the minimum endeavour to verify the
     background facts leading to the alleged demand of bribe – Prudent
     and unbiased police officer would be persuaded to make at least a
     basic enquiry into these facts rather than following the dictat of the
     complainant – Furthermore, PW-2 was the only witness associated
     by the DySP to accompany the complainant for witnessing the
     transaction of demand and acceptance of bribe – PW-2 was
     kept as a shadow witness in the case – DySP did not make any
     effort whatsoever to associate an independent person to act as a
     shadow witness in the trap proceedings – Also call detail records
     completely demolish the complainant’s case – Manner in which the
     worker in the saw mill was associated as a panch witness in the
     trap proceedings, creates a grave doubt that the entire case was
     orchestrated against the appellant at the instance of the worker –
     Prosecution case full of embellishments contradicting and doubting
     and thus, would not be safe to convict the appellant for having
     demanded and accepted the bribe money from the complainant –
     Prosecution failed to bring home the charges against the appellant
     by leading evidence of an unimpeachable character – Appellant to
     be acquitted of the charges – Impugned judgments quashed and
     set aside. [Paras 48, 52-57]

                              Case Law Cited
     Neeraj Dutta v. State (Government of NCT of Delhi) [2023] 2
     SCR 997 : (2023) 4 SCC 731 – referred to.

                                 List of Acts
     Prevention of Corruption Act, 1988; Code of Criminal Procedure,
     1973.

                              List of Keywords
     Demand and acceptance of bribe; Conviction and sentence for
     offence punishable u/ss. 7 and 13(1)(d) r/w 13(2) of the PC Act,
     1988; Pre-trap proceedings; Trap Laying Officer; Interested witness;
     Tainted currency notes.
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                             Case Arising From

       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2845
       of 2024
       From the Judgment and Order dated 02.08.2022 of the High Court
       for the State of Telangana at Hyderabad in CRLA No.1036 of 2008

                          Appearances for Parties

       Dama Sheshadri Naidu, Sr. Adv., Hitesh Singh, Ms. Nisha, Ms. Tanvi
       Munjal, Sunil Kumar Sharma, Advs. for the Appellant.
       Kumar Vaibhav, Ms. Devina Sehgal, Advs. for the Respondent.

                   Judgment / Order of the Supreme Court

                                  Judgment
       Mehta, J.
1.     Leave granted.
2.     This appeal by special leave filed on behalf of the appellant lays
       a challenge to the judgment dated 2nd August, 2022 passed by the
       High Court of Telangana at Hyderabad in Criminal Appeal No.1036 of
       2008, whereby the appeal preferred by the appellant was dismissed
       and the judgement dated 5th August, 2008 passed by the learned
       Additional Special Judge for SPE and ACB Cases, City Civil Court,
       Hyderabad (hereinafter being referred to as ‘trial Court’) was affirmed.
       By the said judgment, the appellant herein i.e., Accused Officer
       No.1 (hereinafter being referred to as ‘AO1’) and Accused Officer
       No.2 (hereinafter being referred to as ‘AO2’) were convicted and
       sentenced as below:-
       i)    Offence punishable under Section 7 of Prevention of Corruption
             Act, 1988 (hereinafter being referred to as ‘PC Act’): Rigorous
             Imprisonment of one year and a fine of Rs.1,000/- each (in
             default, simple imprisonment for three months)
       ii)   Offence punishable under Section 13(1)(d) read with 13(2) of
             PC Act: Rigorous Imprisonment of one year and a fine of Rs.
             1,000/- each (in default, simple imprisonment for three months)
             Both the sentences were ordered to run concurrently.
[2024] 7 S.C.R.                                                                643

                 Mir Mustafa Ali Hasmi v. The State of A.P.


3.   In appeal, the High Court overturned the conviction of AO2 and
     affirmed the conviction of the appellant (AO1) herein.
4.   The case of the prosecution in a nutshell is that the appellant (AO1)
     being the Forest Section Officer and co-accused (AO2-N. Hanumanthu)
     (since acquitted) being the Forest Guard were both part of the
     Flying Squad of the Forest Department. On 6th January, 2003, the
     appellant (AO1) and AO2 had gone to a saw-mill at Vanasthalipuram,
     purportedly operated by the complainant Mukka Ramesh (hereinafter
     being referred to as ‘PW-1’), which was taken on lease in the name
     of PW-1’s wife from one Sri E. Ramachary. During their visit, the
     appellant (AO1) and AO2 detected teakwood lying in the saw-mill. It
     is alleged that both the accused (AO1 and AO2), threatened PW-1
     that he would be booked in a case for the illegal and unlicensed
     possession of teakwood in the saw-mill. It is further alleged that on
     the plea of PW-1, the appellant (AO1) booked a case against one M.
     Ashok, a worker in the saw-mill and not against PW-1 and thereafter,
     a compounding fee of Rs.50,000/- was charged, by issuing a receipt
     (Exhibit P-2) in the name of M. Ashok.
5.   It is further alleged that after their visit on 6th January, 2023, the appellant
     (AO1) and AO2 started demanding mamool (monthly gratification) to
     the tune of Rs.5,000/- from the PW-1 under a threat that they would
     book a case against him and in that manner his business would be
     ruined. Threatening calls were allegedly made to PW-1 on a regular
     basis. On 21st January, 2003, AO2 called PW-1 and asked him to
     keep the mamool money ready with further instruction that he would
     make a call and give directions for delivery of the said bribe. On
     22nd January, 2003, the appellant (AO1) called PW-1 and asked him
     to reach Hotel Quality-Inn Residency, Nampally (hereinafter being
     referred to as ‘Hotel Quality-Inn’), on early morning of 23rd January,
     2003 with the demanded mamool amount of Rs. 5,000/-. Disinclined
     to pay the bribe, PW-1 lodged a complaint (Exhibit P-1) on 22nd
     January, 2003 with Shri G. Ramachander, Deputy Superintendent
     of Police, ACB (hereinafter being referred to as ‘DySP’)(PW-10) and
     a crime report was registered thereupon. The trap was arranged on
     23rd January, 2003. The complainant (PW-1), along with his friend
     Potagunta Ramesh Naidu (hereinafter being referred to as ‘PW-2’)
     reached the ACB office with the currency notes to the tune of Rs.5,000/-
     being the bribe amount. Two independent witnesses, namely, Kathi
     Srinivas Rao (PW-3) and Md. Mahmood Ali were summoned to act
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       as mediators (panchas). At 9:45 am, the trap party conducted the pre-
       trap proceedings which were recorded in the memorandum (Exhibit
       P-4). After completing the pre-trap proceedings, the trap party, under
       the leadership of DySP (PW-10) proceeded to the Hotel Quality-Inn
       at 10:30 am. The complainant (PW-1) and PW-2 entered the Hotel
       and met the appellant (AO1) in the coffee shop of the said Hotel. It is
       further alleged that the complainant (PW-1) offered the bribe amount
       to the appellant (AO1) at the coffee shop, who showed reluctance to
       accept the same and asked them to follow him into the cellar of the
       hotel. The DySP and the other trap party members followed them from
       a distance. After reaching the cellar, the appellant (AO1) demanded and
       accepted the bribe amount from the complainant (PW-1) and pushed
       it down into the rexine bag which he was carrying. The prosecution
       claims that the above sequence of events which transpired between
       the appellant (AO1) and the complainant (PW-1) in presence of PW-2
       was also visible to the trap party which was waiting in the hotel lobby,
       however, they could not overhear the conversation.
6.     At about 11:25 am, PW-2 came out of the cellar and gave the pre-
       arranged signal upon which, the trap party proceeded towards the
       appellant (AO1). The DySP (PW-10) questioned him about having
       accepted the bribe amount. The complainant (PW-1) immediately
       informed the DySP(PW-10) that the appellant (AO1) had demanded
       and accepted the bribe amount of Rs.5,000/- from him and had placed
       the same in a rexine bag. The hands of the appellant (AO1) were
       rinsed in sodium carbonate solution. The wash of the fingers of his
       right hand turned pink. The appellant (AO1), upon being questioned
       about having accepted the bribe, stated with trepidation that he had
       accepted the said amount towards compounding fee and opened
       the rexine bag which he was carrying. The mediator, Kathi Srinivas
       (PW-3) took out the currency notes from the rexine bag being held by
       the appellant (AO1) and on verification, numbers of the notes tallied
       with the numbers of the currency notes submitted by the complainant
       (PW-1) at the time of the pre-trap proceedings. The bribe amount and
       a diary along with the rexine bag held by the appellant (AO1) were
       seized. The diary too was tested for presence of phenolphthalein
       because it had also come into contact of the tainted currency notes
       which was kept in the bag. A money-receipt book was also seized
       (via memorandum (Exhibit P-6)). The post-trap proceedings were
       recorded in the memorandum (Exhibit P-11).
[2024] 7 S.C.R.                                                        645

                Mir Mustafa Ali Hasmi v. The State of A.P.


7.   The prosecution sanction was procured and upon concluding the
     investigation, charge sheet came to be filed against the appellant
     (AO1) and AO2 in the Court of learned Additional Special Judge for
     SPE and ACB Cases, City Civil Court, Hyderabad. The learned trial
     Court framed charges against the appellant (AO1) and AO2 for the
     offences punishable under Sections 7, 13(1)(d) read with Section
     13(2) of the PC Act. They denied the charges and claimed trial. The
     prosecution examined as many as 11 witnesses and exhibited 19
     documents and 8 material objects in order to prove its case. The
     accused (AO1 and AO2) upon being questioned under Section 313 of
     the Code of Criminal Procedure, 1973 (hereinafter being referred as
     ‘CrPC’) and when confronted with the allegations as appearing in the
     prosecution evidence, denied the same and claimed to be innocent.
8.   The appellant (AO1) categorically stated in his statement under
     Section 313 CrPC, that while he and the complainant (PW-1) were
     having coffee in the hotel, he inadvertently left his rexine bag behind
     at the coffee shop. He conjectured that the complainant (PW-1)
     might have planted the tainted currency notes in his rexine bag
     without his knowledge because he was aggrieved by the fine of
     Rs.50,000/- imposed upon M. Ashok (employee of the saw-mill) by
     the appellant (AO1) earlier.
9.   Upon hearing the arguments of the learned defence counsel and
     the learned Special Public Prosecutor and after evaluating the
     evidence available on record, the trial Court proceeded to convict
     and sentence the appellant (AO1) and AO2 as above vide judgment
     dated 5th August, 2008.
10. The said judgment was assailed by both the accused by filing separate
    appeals before the High Court of Telangana. The appeal preferred by
    AO2 was accepted whereas, the appeal preferred by the appellant
    (AO1) was rejected by judgment dated 2nd August, 2022 which is
    subjected to challenge in this appeal by special leave.
     Submissions on behalf of the appellant: -
11. Shri Dama Sheshadri Naidu, learned senior counsel representing
    the appellant, vehemently and fervently contended that the entire
    prosecution case is false and fabricated. No convincing evidence
    was led by the prosecution to prove the factum of demand of bribe
    by the AO1 (appellant). G.Ramachander (PW-10) DySP, who was
646                                                          [2024] 7 S.C.R.

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       also the Trap Laying Officer (hereinafter being referred to as ‘TLO’)
       did not make any effort to get the factum of demand of bribe verified
       by means of any independent or tangible evidence.
12. Shri Naidu submitted that the prosecution failed to prove that the
    appellant (AO1) had ever demanded any bribe from the complainant
    (PW-1) because neither did the TLO (PW-10) make any endeavour
    to get the telephonic conversation between the complainant (PW-1)
    and the appellant (AO1) recorded nor did he make any attempt to
    place a recording device on the person of the complainant (PW-1)
    during the trap proceeding so as to verify the factum of demand of
    bribe. Furthermore, other than the interested witness i.e., PW-2,
    no independent witness was directed by the TLO to overhear the
    conversation which took place between the complainant (PW-1) and
    the appellant (AO1) on the day of the trap.
13. Shri Naidu urged that even the allegation of acceptance of illegal
    gratification by the appellant (AO1) is surrounded in a cloud of
    dubiety. In order to buttress these submissions, Shri Naidu drew the
    attention of the Court to the following admissions as appearing in
    the cross-examination of the complainant, Mukka Ramesh (PW-1): -
            “We ordered coffee took ½ an hour for servicing. I removed
            the amount and about to give the amount to the AO. I did
            not give it to his hand. The accused refused and asked
            me to come downstairs. After ordering coffee the coffee
            being served we 3 took coffee. The Accused No.1 started to
            going out and we follow the accused at that time I kept the
            amount in my pocket and while going out from coffee inn
            the amount was with me. We have to get down the same
            ramp by 50ft. We have to take turns After the accused 1
            going out I found the bag of him in the hotel 1 picked it up
            I handed over the bag to the accused 1 after crossing 2
            tables in the hotel. A1 was going to since I paid the bill of
            the hotel I was to little bit late to follow AO.1. We have to
            again pass the ramp down the cellar by about 50ft. Where
            there are two different stands for parking motor cycles
            and four wheelers. The generators are situated near to
            the parking stand of two wheelers. The accused came on
            two wheeler I asked the accused 1 to show the papers.
            He showed the papers to me. It is not true to suggest that
[2024] 7 S.C.R.                                                           647

                Mir Mustafa Ali Hasmi v. The State of A.P.


           after accused showing the papers to me I snatched them
           and myself and Pw2 turned them and throw them away. It
           is not true to suggest that I paid the money to the Accused
           1 near the generator and the accused asked me to put it
           in bag is false. It is not true to suggest I kept the tainted
           amount in the rexyne bag which was left by the accused
           before leaving coffee inn and I planted the currency notes
           in the bag and handed over it to him and the accused has
           no knowledge the tainted amount was in the rexyne bag.
           It is not true to suggest that myself and Pw2 used our
           influence to ACB to organize the false trap against Alas
           AO.1 insisted of filing case against my wife, Manjula. It is
           not true to suggest that the AO1 and 2 did not telephone
           me and my statement is false.”
                                                  (emphasis supplied)
14. Referring to the above admissions as appearing in the testimony of
    the complainant (PW-1), Shri Naidu contended that it is clear that the
    appellant (AO1) had forgotten his rexine bag in the coffee shop from
    which the tainted currency notes were recovered later by the trap party,
    and it was the complainant (PW-1) who handed over the same rexine
    bag to the appellant (AO1). Shri Naidu urged that fuelled by ulterior
    motive, the complainant (PW-1) misused this window of opportunity
    to plant the tainted currency notes in the bag of the appellant (AO1).
15. Learned counsel also urged that the prosecution did not take any
    steps to get the wash collected from the hands of the appellant
    (AO1) during the trap proceedings, tested through the FSL and thus,
    there is no corroborative evidence to show that the appellant (AO1)
    had accepted or handled the tainted currency notes as alleged by
    prosecution.
16. Shri Naidu further contended that the trial Court as well as the High
    Court rendered the findings of guilt against the appellant (AO1)
    merely on the basis of assumptions and presumptions drawn from
    the tainted and vacillating deposition of the complainant (PW-1) and
    PW-2, who was admittedly a close friend of the complainant (PW-1)
    and thus, he can be categorized as being an interested witness.
17. Learned counsel also urged that the TLO (PW-10) was under
    an obligation to send an independent shadow witness with the
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       complainant (PW-1) and PW-2 to oversee and overhear the events
       as they unfolded during the course of the transaction of demand
       and acceptance of the bribe. Admittedly, neither the mediators nor
       any other witness associated in the trap proceedings heard the
       conversation which took place between the AO1 (appellant), the
       complainant (PW-1) and PW-2, despite the positive case that they all
       were sitting on the nearby table. It was the complainant (PW-1) who
       voluntarily took his friend, PW-2, and got him associated during the
       trap proceeding. As per Shri Naidu, this was a clear attempt by the
       complainant (PW-1) in connivance with the TLO (PW-10) to create
       evidence through a partisan witness acting and hence, the prosecution
       is guilty of deliberately associating an interested witness so as to
       fortify the alleged transaction of demand and acceptance of bribe.
18. Shri Naidu urged that the High Court cursorily brushed aside the
    crucial admission as appearing in the cross-examination of the
    complainant (PW-1)(reproduced supra) that the rexine bag of the
    appellant (AO1) from which the tainted currency notes were recovered
    had been handled by the complainant (PW-1), by observing that this
    was an afterthought. As per Shri Naidu, the said vital admission was
    spontaneously elicited during the cross-examination conducted from
    the complainant (PW-1) and thus, it cannot be ignored as being an
    afterthought. He contended that the prosecution consciously chose not
    to re-examine the complainant (PW-1) on this aspect of his testimony
    and thus, the defence cannot be denied to the benefit thereof.
19. Shri Naidu, further contended that no calls were made by the appellant
    (AO1) to the complainant (PW-1) proximate to the date of the trap.
    He drew the attention of the Court to the call detail records (CDR)
    of the appellant (AO1) and the complainant (PW-1) and urged that
    only two calls were exchanged between the appellant (AO1) and
    the complainant (PW-1), one being on 8th January, 2003 and the
    other on 17th January, 2003 and hence, the allegation made by the
    complainant (PW-1) in the FIR and in his deposition, that the appellant
    (AO1) called him on 21st January, 2003, 22nd January, 2003 and 23rd
    January, 2003 in connection with demand of bribe is falsified, creating
    a grave doubt on the veracity of the entire prosecution case.
20. Attention of the Court was also drawn to the pertinent admission
    made by the complainant (PW-1) in his testimony that while they
    were having coffee in the coffee shop of the Hotel Quality-Inn, he
[2024] 7 S.C.R.                                                       649

                Mir Mustafa Ali Hasmi v. The State of A.P.


     took out the bribe amount and offered it to the appellant (AO1)
     who refused to accept the same. Shri Naidu thus, urged that it is
     crystal clear that the prosecution miserably failed to prove that the
     appellant (AO1) demanded or accepted any bribe amount from the
     complainant (PW-1).
21. On these grounds, learned senior counsel appearing for the appellant
    implored the Court to accept the appeal, set aside the impugned
    judgments and direct acquittal of the appellant (AO1) from the charges.
     Submission on behalf of the respondent-State: -
22. Per contra, learned standing counsel appearing for the State,
    vehemently and fervently opposed the submissions advanced on
    behalf of the appellant (AO1). He contended that the appellant (AO1)
    being the Forest Section Officer firstly, imposed an unwarranted fine
    amount of Rs.50,000/- on the saw-mill of the complainant (PW-1).
    Thereafter, extending a threat of repeated action thereby harming
    the business of the complainant (PW-1), the appellant (AO1),
    demanded a monthly amount of Rs.5,000/- as bribe (mamool) from
    the complainant (PW-1) which fact is duly corroborated from the
    evidence of the complainant (PW-1) and PW-2.
23. He urged that at the time of preparation of the memorandum of the
    post-trap proceedings (Exhibit P-11), the appellant (AO1) admitted that
    he had received the amount from the complainant (PW-1), offering a
    far-fetched explanation that the same was received as compounding
    fee in a case whereas, no such case was pending. It was thus,
    contended that this admission made by the appellant (AO1) can be
    read against him. The subsequent plea set up by the appellant (AO1)
    that the currency notes were planted by the complainant (PW-1)
    himself in his rexine bag without his knowledge is unacceptable on
    the face of record and that such frivolous defence plea was rightly
    discarded by the trial Court and the High Court.
24. He further urged that the appellant (AO1), having failed to offer a
    plausible explanation regarding the tainted currency notes found
    from the rexine bag in his possession and so also to the presence of
    phenolphthalein on the fingers of his right hand, was rightly convicted
    by the trial Court and his conviction was justifiably affirmed by the
    High Court. He thus, implored the Court to dismiss the appeal and
    affirm the impugned judgments.
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       Discussion and Conclusion: -
25. We have given our thoughtful consideration to the submissions
    advanced at bar and have perused the impugned judgments. With
    the assistance of learned counsel for the parties, we have thoroughly
    examined the evidence available on record.
26. Since fervent arguments were raised on behalf of the parties on
    the aspect of demand of bribe, it would be useful to recapitulate
    the relevant position of law on the use of circumstantial evidence to
    prove demand of illegal gratification.
27. A Constitution Bench of this Court in the case of Neeraj Dutta v.
    State (Government of NCT of Delhi),1 was called upon to answer a
    reference on the question as to whether the circumstantial evidence
    can be relied upon to prove the demand of illegal gratification and
    whether in the absence of evidence of the complainant direct/primary,
    oral or documentary, would it be permissible to draw an inferential
    deduction of culpability/guilt of a public servant under Sections 7 and
    13(1)(d) read with Section 13(2) of the Act based on other evidence
    adduced by the prosecution. This Constitution Bench traversed
    the entire history of the judicial pronouncements on the issue and
    held as below: -
            “88. What emerges from the aforesaid discussion is
            summarised as under:
                88.1. (a) Proof of demand and acceptance of illegal
                gratification by a public servant as a fact in issue by
                the prosecution is a sine qua non in order to establish
                the guilt of the accused public servant under Sections
                7 and 13(1)(d)(i) and (ii) of the Act.
                88.2. (b) In order to bring home the guilt of the
                accused, the prosecution has to first prove the
                demand of illegal gratification and the subsequent
                acceptance as a matter of fact. This fact in issue can
                be proved either by direct evidence which can be in
                the nature of oral evidence or documentary evidence.


1   [2023] 2 SCR 997 : (2023) 4 SCC 731
[2024] 7 S.C.R.                                                         651

                Mir Mustafa Ali Hasmi v. The State of A.P.


             88.3. (c) Further, the fact in issue, namely, the proof
             of demand and acceptance of illegal gratification
             can also be proved by circumstantial evidence in the
             absence of direct oral and documentary evidence.
             88.4. (d) In order to prove the fact in issue, namely,
             the demand and acceptance of illegal gratification
             by the public servant, the following aspects have to
             be borne in mind:
                (i) if there is an offer to pay by the bribe-giver
                without there being any demand from the public
                servant and the latter simply accepts the offer
                and receives the illegal gratification, it is a case
                of acceptance as per Section 7 of the Act. In
                such a case, there need not be a prior demand
                by the public servant.
                (ii) On the other hand, if the public servant
                makes a demand and the bribe-giver accepts the
                demand and tenders the demanded gratification
                which in turn is received by the public servant, it is
                a case of obtainment. In the case of obtainment,
                the prior demand for illegal gratification emanates
                from the public servant. This is an offence under
                Sections 13(1)(d)(i) and (ii) of the Act.
                (iii) In both cases of (i) and (ii) above, the offer
                by the bribe-giver and the demand by the
                public servant respectively have to be proved
                by the prosecution as a fact in issue. In other
                words, mere acceptance or receipt of an illegal
                gratification without anything more would not
                make it an offence under Section 7 or Sections
                13(1)(d)(i) and (ii), respectively of the Act.
                Therefore, under Section 7 of the Act, in order
                to bring home the offence, there must be an
                offer which emanates from the bribe-giver which
                is accepted by the public servant which would
                make it an offence. Similarly, a prior demand
                by the public servant when accepted by the
                bribe-giver and in turn there is a payment made
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         which is received by the public servant, would
         be an offence of obtainment under Sections
         13(1)(d)(i) and (ii) of the Act.
       88.5. (e) The presumption of fact with regard to the
       demand and acceptance or obtainment of an illegal
       gratification may be made by a court of law by way
       of an inference only when the foundational facts
       have been proved by relevant oral and documentary
       evidence and not in the absence thereof. On the basis
       of the material on record, the court has the discretion
       to raise a presumption of fact while considering
       whether the fact of demand has been proved by
       the prosecution or not. Of course, a presumption of
       fact is subject to rebuttal by the accused and in the
       absence of rebuttal presumption stands.
       88.6. (f) In the event the complainant turns “hostile”,
       or has died or is unavailable to let in his evidence
       during trial, demand of illegal gratification can be
       proved by letting in the evidence of any other witness
       who can again let in evidence, either orally or by
       documentary evidence or the prosecution can prove
       the case by circumstantial evidence. The trial does
       not abate nor does it result in an order of acquittal
       of the accused public servant.
       88.7. (g) Insofar as Section 7 of the Act is concerned,
       on the proof of the facts in issue, Section 20 mandates
       the court to raise a presumption that the illegal
       gratification was for the purpose of a motive or reward
       as mentioned in the said Section. The said presumption
       has to be raised by the court as a legal presumption or
       a presumption in law. Of course, the said presumption
       is also subject to rebuttal. Section 20 does not apply
       to Sections 13(1)(d)(i) and (ii) of the Act.
       88.8. (h) We clarify that the presumption in law under
       Section 20 of the Act is distinct from presumption of
       fact referred to above in sub-para 88.5(e), above,
       as the former is a mandatory presumption while the
       latter is discretionary in nature.”
[2024] 7 S.C.R.                                                      653

                Mir Mustafa Ali Hasmi v. The State of A.P.


28. Thus, in addition to answering the primary issue raised in the matter,
    the Constitution Bench also went on to hold that in order to bring
    home the guilt of the accused, the prosecution has to prove the
    demand of illegal gratification and the subsequent acceptance, by
    either direct or circumstantial evidence.
29. Keeping in view the ratio of the above mentioned decision of the
    Constitution Bench, we now proceed to discuss the evidence available
    on record so as to find out whether the prosecution has been able to
    prove beyond all manner of doubt the fact that the appellant (AO1)
    demanded and accepted bribe from the complainant (PW-1).
30. First and foremost, we may note that the first allegation of demand
    as emanating from the prosecution case is reflected from the
    complaint (Exhibit P-1) submitted by the complainant (PW-1) to the
    DySP, ACB Department, Hyderabad Range on 22nd January, 2003,
    alleging inter alia that a fine of Rs.50,000/- had been imposed on his
    saw mill by the flying squad led by the appellant (AO1) in relation
    to the recovery of illegal and unlicensed teakwood in the saw-mill.
    After a week of this event, the appellant (AO1) and the Forest guard
    (AO2) again came to the saw-mill and demanded a monthly amount
    (mamool) of Rs.5,000/- to refrain from taking any further action on
    the saw-mill. Thus the allegation of demand as emanating from the
    complaint (Exhibit P-1) is common to both the appellant (AO1) as well
    as the co-accused (AO2) who stands acquitted by the High Court.
    The complaint (Exhibit P-1) was lodged on 22nd January, 2003. The
    DySP (PW-10) organized the pre-trap proceedings, on the next day
    i.e. on 23rd January 2003 without making any attempt to verify the
    allegation of demand of bribe levelled against the appellant (AO1)
    by the complainant (PW-1) in the complaint (Exhibit P-1).
31. It is the settled convention in such cases that the Trap Laying
    Officer, makes efforts to verify the factum of demand of bribe by the
    public servant before initiating the trap proceedings. The factum of
    demand of bribe can also be verified by recording the telephonic
    conversation between the decoy and the suspect public servant.
    Often, a recording device is secretly placed on the person of the
    decoy to record the conversation which would transpire during the
    course of acceptance of bribe by the public servant. However, no
    such steps were taken by the DySP (PW-10), who straight away
    organized the trap without making any effort whatsoever to verify the
654                                                         [2024] 7 S.C.R.

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       factum of demand attributed to the appellant (AO1) and AO2. It is
       relevant to mention here that PW-2 was the only witness associated
       by the DySP/TLO (PW-10) to accompany the complainant (PW-1)
       for witnessing the transaction of demand and acceptance of bribe.
       Evidently thus, PW-2 was kept as a shadow witness in the case.
       During the course of trial, the complainant (PW-1) and PW-2 both
       admitted that they were close friends. The complainant (PW-1) and
       PW-2 being close friends, it can safely be assumed that PW-2 was an
       interested witness. Hence, it is also manifested that TLO/DySP (PW-
       10) did not make any effort whatsoever to associate an independent
       person to act as a shadow witness in the trap proceedings. It is
       recorded in the memorandum of the pre-trap proceedings (Exhibit
       P-4) that it was the DySP (PW-10) who summoned the PW-2 and
       asked him to act as a shadow witness to oversee and overhear the
       transaction of acceptance of illegal gratification. However, this fact
       is totally contradicted by the version as set out in the evidence of
       the complainant (PW-1) and PW-2. Both categorically stated that
       it was the complainant (PW-1) who asked PW-2 to accompany
       him during the trap proceedings scheduled to take place on the
       morning of 23rd January, 2003. In normal course, before proceeding
       to the stage of trap, it was incumbent upon the DySP (PW-10) to
       get an independent verification done of the alleged demand which
       fact assumes prominence considering the circumstance that the
       accompanying shadow witness, Ramesh Naidu (PW-2) is a close
       friend of the complainant (PW-1) who himself bore a grudge against
       the appellant (AO1) on account of the fine of Rs. 50,000/- imposed
       on the saw-mill.
32. Now, we shall proceed to discuss the evidence of the material
    prosecution witnesses.
33. The complainant (PW-1), stated in examination-in-chief that he had
    taken a premises on lease from E. Ramachary in the name of his
    wife and was running a saw-mill and timber depot thereupon. On 6th
    January, 2003, the Flying Squad of the Forest Department comprising
    of Mir Mustafa, Forest Section Officer (appellant herein) (AO1) and
    N. Hanumanthu, Forest Guard (AO2) along with three other staff
    members came to his saw-mill and conducted an inspection. They
    allegedly found teakwood stored in the saw-mill without any licence
    etc. and thus a case was booked against the complainant (PW-1)
[2024] 7 S.C.R.                                                      655

                Mir Mustafa Ali Hasmi v. The State of A.P.


     who disputed that no teakwood was found in his mill. After booking
     the case, the appellant (AO1) and AO2 imposed a fine of Rs.50,000/-
     but the fine receipt was issued in the name of an employee of the
     saw mill named M. Ashok. After 7 or 10 days, AO1 and AO2 again
     came to his saw-mill and demanded a monthly payment (mamool)
     of Rs.5,000/- threatening that if the amount was not paid, they would
     book repeated cases against him and dismantle his business. On
     21st February, 2003, AO1 and AO2 rang up the complainant (PW-1)
     and demanded a bribe of Rs.5,000/- . AO2 also frequently called the
     complainant (PW-1) over mobile and harassed him in relation to the
     demand of Rs.5,000/-. Being perturbed by these persistent demands,
     the complainant (PW-1) went to the ACB Office on 22nd January, 2003
     and submitted a complaint (Exhibit P-1) to the DySP (PW-10). The
     complainant (PW-1) was instructed by the DySP (PW-10) to come to
     the ACB office on 23rd January, 2003 along with the bribe amount of
     Rs.5,000/- which he intended to pay for getting the appellant (AO1)
     and AO2 trapped. On the same day, i.e. on 22nd January, 2003 in
     the evening, the complainant (PW-1) informed his friend Ramesh
     Naidu (PW-2) about lodging of the complaint and requested him to
     accompany him to the ACB office on the next day. The complainant
     (PW-1) alleged that in the morning of 23rd March, 2003, he received
     another phone call from the appellant (AO1) and AO2 and he was
     directed to come to the Quality-Inn Residency Hotel, Nampally
     along with the bribe amount of Rs.5,000/-. The complainant (PW-1)
     agreed and thereafter, he proceeded to the ACB office where PW-2
     was already waiting for him. The DySP (PW-10), his staff along with
     mediators assembled in the ACB office. The DySP (PW-10) introduced
     the complainant (PW-1) to the mediators; pre-trap proceedings were
     undertaken; the mediators verified the currency notes presented by
     the complainant (PW-1) and noted the denomination and the serial
     numbers thereof in the pre-trap panchnama (Exhibit P-4). A white
     powder was applied to the currency notes. The DySP (PW-10)
     then requested PW-2 to act as an accompanying witness (shadow
     witness). He told the complainant(PW-1) and PW-2 to proceed to the
     Hotel Quality-Inn for paying the bribe amount to the appellant (AO1)
     and AO2 on their further demand and even otherwise. PW-2 was
     instructed to watch the sequence of events which would transpire
     between the complainant (PW-1) and the two accused (AO1 and
     AO2) and after transfer of the bribe amount, to give the pre-arranged
656                                                        [2024] 7 S.C.R.

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       signal by wiping his hand with the handkerchief. The procedure of
       use of phenolphthalein powder was demonstrated in presence of
       the complainant (PW-1). After that, the complainant (PW-1) and
       PW-2 proceeded to the Hotel Quality-Inn and the DySP (PW-10)
       and other trap party members followed them from a distance. The
       complainant (PW-1) and PW-2 reached the Hotel Quality-Inn at
       about 10:30 am. The complainant (PW-1) parked his vehicle in
       the cellar of the hotel and then he, along with PW-2 went into the
       coffee shop and occupied a table. The mediators and Inspector,
       N. Chandrashekar (PW-11) also came into the shop and occupied
       a nearby table. The DySP (PW-10) and other staff members kept
       vigil at the entry gate of the coffee shop. While they were waiting,
       the appellant (AO1) came to the complainant’s table and occupied
       the chair opposite to the one on which the complainant (PW-1) and
       PW-2 were sitting. The appellant (AO1) enquired whether he had
       brought the demanded amount; to which the complainant (PW-1)
       answered in affirmative. While the complainant (PW-1) was about to
       pass on the tainted currency notes to the appellant (AO1), he showed
       reluctance and suggested that the amount should not be given in the
       hotel and directed the complainant (PW-1) to proceed to the cellar.
       Accordingly, the complainant (PW-1), PW-2 and the appellant (AO1)
       proceeded to the cellar and reached near the generator room. There,
       the appellant (AO1) opened the zip of his rexine bag and asked the
       complainant (PW-1) to put the money in that bag. In conformance,
       the complainant (PW-1) took the tainted currency notes from his left
       side shirt pocket and placed the same in the bag of the appellant
       (AO1) wherein, some book and papers were lying. The appellant
       (AO1) pushed down the currency notes with his right hand, handed
       some papers to the complainant (PW-1) and closed the zip of the
       bag. The appellant (AO1) asked the complainant (PW-1) to tear the
       said papers, who complied and torn the papers. In the meanwhile,
       PW-2 left them and proceeded outside. In a short while, the DySP
       (PW-10) and the trap party rushed down into the cellar and disclosed
       their identity to AO1 (appellant). The DySP (PW-10), then asked the
       complaint (PW-1) to narrate the intervening sequence of events. The
       version as given out by the complainant (PW-1) was incorporated
       by the mediators in the post-trap memo (Exhibit P-11). The version
       of PW-2 was also noted down by the mediators in the same memo.
       The panchnama was drawn in a lounge on the second floor of the
[2024] 7 S.C.R.                                                        657

                Mir Mustafa Ali Hasmi v. The State of A.P.


     hotel. The trap party stayed at the hotel till 5:00 pm. The complainant
     (PW-1) and PW-2 were called to the ACB office and their statements
     were recorded. Later on, Section 164 CrPC statements of both the
     complainant (PW-1) and PW-2 were also recorded. In his statement,
     the complainant (PW-1) stated that the torn papers, upon which the
     appellant (AO1) had taken his signatures during the very first raid
     i.e. on 6th January, 2003, were handed over to the DySP (PW-10)
     at the time of drawing the post trap memo.
34. In cross examination, the complainant (PW-1) stated that he was
    not aware that one M. Ashok of Vanasthalipuram was running the
    saw-mill and that the same M. Ashok turned out to be a signatory to
    the seizure proceeding conducted on 6th January, 2003 at the saw-
    mill as well as a panch witness in the trap proceedings. A pertinent
    question was put to the complainant regarding the calls made to
    him by AO1 (appellant), and he admitted that the appellant (AO1)
    did not call him between 6th January, 2003 to 23rd January, 2003 in
    relation to demand of bribe. The complainant (PW-1) also admitted
    that he had been warned by the appellant (AO1) that he would book
    a case against his wife Manjula.
35. The pivotal extracts drawn above from the cross-examination of the
    complainant (PW-1) clearly indicate that the tainted currency notes
    were not given by the complainant (PW-1) to the appellant (AO1) in
    his hands presumably, because he had shown reluctance to accept
    the same. After the complainant (PW-1), his companion PW-2, and
    the appellant (AO1) had taken coffee, the appellant (AO1) started
    moving out towards the cellar followed by the complainant (PW-1)
    and PW-2. While the complainant (PW-1) was proceeding towards
    the cellar, he noticed that the rexine bag of the appellant (AO1) had
    been left behind in the coffee shop and thus, he picked it up and
    handed the same to the AO1 (appellant). Nevertheless, he denied
    the defence suggestion that he had planted the tainted currency
    notes in the rexine bag left behind by the accused.
36. PW-2 in examination-in-chief, virtually repeated what was stated
    by the complainant (PW-1) in his deposition. However, in his cross-
    examination, PW-2 feigned ignorance to the fact that the complainant
    (PW-1) picked up the rexine bag from the coffee shop and handed
    over the same to the appellant (AO1). He admitted being a friend
    of the complainant (PW-1).
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37. Kathi Srinivas Rao (PW-3) was one of the panch witness associated
    in the trap proceedings. He stated in his examination-in-chief that
    he, along with the other mediator and Inspector N. Chandrashekar
    (PW-11) had occupied a table in the coffee shop near the one on
    which the complainant (PW-1) and the accompanying witness (PW-
    2) were sitting. At about 10:45 am, the appellant (AO1) entered the
    coffee shop and started talking to the complainant (PW-1). He also
    took out some papers from the rexine bag and showed the same to
    the complainant (PW-1). At about 11:15 am, the complainant (PW-
    1) and the accompanying witness (PW-2) along with the appellant
    (AO1) left the coffee shop and moved towards the cellar of the
    hotel. The witness (PW-3) deposed about the recovery of the tainted
    currency notes from the bag held by the appellant (AO1) in the
    cellar of the hotel.
38. What is significant to note from the evidence of the witness (PW-3)
    is that he did not make a whisper that he observed or overheard the
    appellant (AO1) demanding any bribe from the complainant (PW-1)
    while they were all sitting in the coffee shop.
39. A. Balachithari (PW-4) being the Forest Beat Officer, stated that
    acting on the direction of the AO1 (appellant), the flying squad
    proceeded towards a saw-mill at Vanasthalipuram on the suspicion
    that teakwood was illegally stocked therein. A worker M. Ashok was
    present in the mill. Upon finding illegal and unlicensed teakwood in
    the saw-mill, the appellant (AO1) issued a money receipt in the name
    of M. Ashok after receiving a sum of Rs.50,000/- as compounding
    fee. A panchnama was also drawn regarding these proceedings.
    In cross-examination, the witness (PW-4) admitted that they found
    the teakwood in the saw-mill which was owned by a lady who did
    not come to the spot when the proceedings were undertaken. The
    name of the saw-mill was Malikarjun saw-mill. It may be noted that
    the appellant (AO1) has fervently contended that the second panch
    witness, M. Ashok was actually the owner of the saw-mill and is the
    same person in whose name the panchnama was prepared on 6th
    January, 2003. It is the contention of the appellant (AO1) that the
    entire trap proceedings were orchestrated at the behest of the said
    M. Ashok.
40. G. Santosh Kumar (PW-5) being the Divisional Forest Officer, Vigilance
    was examined to narrate the procedural aspects pertaining to the duties
[2024] 7 S.C.R.                                                          659

                Mir Mustafa Ali Hasmi v. The State of A.P.


     of the Forest Section Officers etc. In cross-examination, the witness
     (PW-5) admitted that he had not been shown any records relating
     to the case. He feigned total ignorance about the instant ACB case.
41. B. Arun Madhav (PW-6) being the Nodal officer of Idea Cellular Limited
    proved the call detail records (CDR) of the cell phones held by the
    appellant (AO1)and AO2. It is clearly borne out from his evidence
    and the call detail records (Exhibit P-14 and P-15) that no calls
    were exchanged between the appellant (AO1) and the complainant
    (PW-1) after 17th January, 2023. Thus, it becomes crystal clear that
    the case setup by the complainant (PW-1) that the appellant (AO1)
    regularly called him right up to the date of the filing of the complaint
    (Exhibit P-1) and also gave him instructions over mobile to come to
    the Hotel Quality-Inn for paying the bribe (mamool) is nothing but a
    sheer piece of concoction. The call detail records (CDR) completely
    demolish the case setup by the complainant (PW-1) in this regard.
42. M.A. Waheeda (PW-9) being the Divisional Forest Officer,
    Kothagudam was examined by the prosecution to narrate about the
    procedure prevailing in the forest department. He stated that on 6th
    January, 2003, the appellant (AO1) had booked a case at a saw-mill
    in Vanasthalipuram and collected a sum of Rs. 50,000/- towards the
    fine. He deposited this amount with the department.
43. It is thus clear that once the appellant (AO1) had collected the
    compounding fees and deposited the same in the department and
    hence, there remained no rhyme or reason for him to have handed
    over the very same set of seizure documents to the complainant
    (PW-1) at the time of payment of bribe. The compounding fee
    already having been entered in the records of the department, the
    destruction of the memoranda etc. would not be of any help to the
    complainant (PW-1).
44. G. Ramachander (PW-10) being the DySP, ACB registered the FIR
    and conducted the trap proceedings. Upon perusal of his examination-
    in-chief, it transpires that the officer never instructed the accompanying
    witness (PW-2) to come with the complainant (PW-1) to the ACB
    office on 23rd January, 2003. During the pre-trap proceedings, the
    two mediators were called who were introduced to the complainant
    (PW-1) and vice versa. DySP (PW-10) stated that it is only after the
    demonstration of the phenolphthalein powder had been made in
    presence of all witnesses, that he had called PW-2 who is acquainted
660                                                        [2024] 7 S.C.R.

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       with the complainant (PW-1), asking him to act as a shadow witness.
       PW-2 agreed to accompany the complainant (PW-1) and oversee
       the transaction exchange of bribe. This version is belied when we
       peruse the deposition of the complainant (PW-1) and PW-2 who
       categorically stated that it was the complainant (PW-1) who asked
       PW-2 on 22nd January, 2003 to accompany him to the ACB office.
       DySP (PW-10) also narrated about the sequence of events leading
       to the recovery of the trap money from the rexine bag being held by
       the AO1 (appellant). In cross-examination, DySP (PW-10) admitted
       that he did not make any enquiry whether the complainant (PW-1)
       was having any license to run saw-mill or the timber depot under the
       name of Malikarjun saw-mill. He simply accepted the version of the
       complainant (PW-1) that he had taken the saw-mill on lease from
       one E. Ramachary. However, neither any enquiry was made from
       E. Ramachary nor did the DySP (PW-10) visit the saw-mill before
       registering the case on the ipse dixit of the complainant (PW-1). He
       did not ask the complainant (PW-1) to produce the attendance register
       of the workers employed in the saw-mill. He also did not make any
       enquiry about the rent receipts issued by E. Ramachary. Smt. Manjula,
       wife of the complainant (PW-1) was alleged to be the lease holder
       of the saw-mill. However, DySP (PW-10) neither enquired about the
       financial status nor about the capability of complainant (PW-1) to
       pay the compounding fee of Rs.50,000/- under the memo (Exhibit
       P-2). PW-10 also admittedly did not make any effort to verify the
       allegation made by the complainant (PW-1) in the complaint (Exhibit
       P-1) that the appellant (AO1) was demanding mamool (bribe) from
       him. DySP (PW-10) explained that he got verification done through
       one Inspector and came to know that the appellant (AO1) was in a
       habit of demanding mamools (bribe). However, he could not recall
       the name of the said Inspector. He feigned ignorance having prior
       knowledge about the complainant (PW-1) and PW-2 being close
       friends. He admitted that there was no mention in the complaint
       (Exhibit P-1) as to the place or time where the bribe amount was to
       be handed over to the appellant (AO1). He also denied having seen
       the complainant (PW-1) picking up the rexine bag from the table
       and handing it over to the appellant (AO1). He rather stated that he
       continuously saw the appellant (AO1) holding the rexine bag. DySP
       (PW-10) admitted that the fact that “the complainant (PW-1) had asked
       him to check the rexine bag wherein, the bribe amount was kept at
[2024] 7 S.C.R.                                                        661

                Mir Mustafa Ali Hasmi v. The State of A.P.


     the instructions of AO1” was not recorded in memorandum (Exhibit
     P-11). A pertinent suggestion was given to DySP (PW-10) that the
     appellant (AO1) stated at the time of the trap that he had forgotten
     his rexine bag in the coffee shop and that PW-1 had planted the
     currency notes therein which the DySP (PW-10) denied.
45. N. Chandrasekhar (PW-11) deposed that he was posted as Inspector,
    ACB from December, 2002 to March, 2006. He assisted the DySP
    (PW-10) in pre and post-trap proceedings conducted on 23rd January,
    2003. He stated that the investigation of the case was entrusted to
    him wherein, he examined the witnesses including one M. Ashok.
    He admitted that M. Ashok was one of the workers employed in
    the saw-mill of the complainant (PW-1). He verified the panchama
    (Exhibit P-3) wherein, the name of M. Ashok was mentioned as a
    panch witness. He was questioned with reference to forest offence
    report which was prepared during the inspection of the saw-mill on
    6th January, 2003, and admitted that M. Ashok who signed these
    documents was the same person who stood as a panch in the trap
    proceedings. The receipt (Exhibit P-2) did not contain the name of
    Malikarjun saw-mill and rather it reflected that the sum of Rs.50,000/-
    was received from M. Ashok.
46. What is most engrossing and significant to note from the evidence
    of N. Chandrashekar (PW-11) is that he did not utter a single word
    that he, along with the panch witnesses had occupied a table nearby
    the one on which the complainant (PW-1) and the appellant (AO1)
    were sitting inside the coffee shop of Hotel Quality-Inn. Evidently, the
    persons who were assigned the task to overhear the conversation
    between the appellant (AO1) and the complainant (PW-1) would
    be the most important witnesses in the case. The deposition of N.
    Chandrashekar (PW-11) on the above aspect contradicts to what was
    noted in the post-trap proceedings (Exhibit P-11) and the deposition
    made by panch witness. Kathi Srinivas Rao (PW-3) who categorically
    stated that he along mediators and other panch witness who would
    be none other than M. Ashok, went to Coffee Shop of Hotel Quality-
    Inn and occupied a table near the one on which the complainant
    (PW1) and the appellant (AO1) were sitting.
47. We may note that in so far as the allegation of demand of bribe is
    concerned, the complainant (PW-1), alleged in the complaint (Exhibit
    P-1) that a week after 6th January, 2003, the appellant (AO1) and AO2
662                                                        [2024] 7 S.C.R.

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       both came to his mill and pressurized him that he would have to pay
       a monthly bribe (mamool) of Rs.5,000/- otherwise, they would file
       cases on him and his business would be ruined. As per the evidence
       of A Balachithan (PW-4) and the receipt (Exhibit P-2), the case for
       illegal possession of teakwood wherein, a sum of Rs.50,000/- was
       charged by way of compounding fee was not registered against the
       complainant (PW-1). It is an admitted position that M. Ashok S/o
       Abbaiah paid the said amount and the receipt (Exhibit P-2) bears his
       name and signature. The very same M. Ashok was also associated
       as a panch witness in the trap proceedings which cannot be by a
       mere chance or coincidence. The association of M. Ashok as a panch
       witness in the trap proceedings in the backdrop of the fact that the
       appellant (AO1) had imposed penalty of Rs.50,000/- on the same
       person is very significant and gives rise to a strong suspicion that
       M. Ashok might have been instrumental in orchestrating the trap
       proceedings. What lends assurance to this conclusion is that the
       DySP(PW-10) admittedly made no investigation whatsoever regarding
       the ownership or licence of the saw-mill where the incident dated 6th
       January, 2003 took place.
48. It is absolutely unnatural that the DySP (PW-10) would have blindly
    accepted the version of the complainant (PW-1) that the appellant
    (AO1) had made a search on his licenced premises and imposed a
    fine of Rs.50,000/- on account of the recovery of teakwood illegally
    stored in the said mill. Since M. Ashok paid the compounding fee
    of Rs.50,000/- and the cash receipt (Exhibit P-2) was also issued
    in his name, any prudent person would presume that it was M.
    Ashok who was operating the saw-mill. The complainant (PW-1)
    consciously tried to project that M. Ashok was merely a labourer
    in his mill. However, his version is falsified in face of the receipt
    (Exhibit P-2) which portrays that M. Ashok had paid the compounding
    fee which was a very heavy amount to the tune of Rs.50,000/-. If
    the recovery of teakwood has been effected from the mill being
    operated by the complainant (PW-1) then, there was no reason
    as to why compounding fees would be charged from M. Ashok. In
    view of these facts, there was no justification for the DySP (PW-10)
    to have straightaway register the FIR on the mere ipse dixit of the
    complainant (PW-1) and to have planned the trap proceedings without
    the minimum endeavour to verify the background facts leading to
    the alleged demand of bribe. A prudent and unbiased police officer
[2024] 7 S.C.R.                                                     663

                Mir Mustafa Ali Hasmi v. The State of A.P.


     would be persuaded to make at least a basic enquiry into these facts
     rather than following the dictat of the complainant (PW-1). It may
     be highlighted that the prosecution very conveniently chose not to
     examine the said M. Ashok S/o Abbaiah as a witness in the case.
49. Admittedly, as per the complaint (Exhibit P-1), the appellant (AO1)
    as well as the forest guard N. Hanumanthu (AO2) both demanded
    the bribe from the complainant (PW-1). The complainant (PW-1) in
    his evidence, stated that the appellant (AO1) and AO2 threatened
    him frequently by making mobile calls and pressurised him to pay up
    the mamool amount of Rs.5,000/- or to face adverse consequences.
    However, as discussed above, this allegation of the complainant
    (PW-1) is belied by the call detail records and the evidence of B.
    Arun Madhav (PW-6).
50. Since the receipt of Rs.50,000/- had been issued in the name of M.
    Ashok, there could not have been any rhyme or reason for DySP
    (PW-10) to have accepted the bald version of the complainant (PW-
    1) that the raid had been made at a premises licenced in the name
    of his wife. The documents prepared on 6th January, 2003 would
    definitely be sufficient to put DySP (PW-10) on guard. Thus, there
    was neither any reason for the appellant (AO1) to have demanded
    bribe from the complainant (PW-1) nor any justification for him to
    cave in to such demand.
51. The complainant (PW-1) alleged that after he lodged the complaint
    (Exhibit P-1) to the DySP (PW-10) on 22nd January, 2003, he was
    called by the appellant (AO1) and AO2 and was directed to come to
    the Hotel Quality-Inn with the proposed bribe amount of Rs.5,000/-.
    Acting on his own wisdom, the complainant (PW-1) asked his friend
    PW-2 to accompany him to the ACB office. The complainant (PW-1)
    further alleged that when he and Ramesh Naidu (PW-2) were about
    to proceed to ACB office, he received another phone call from the
    appellant (AO1) and AO2 in the morning of 23rd January, 2003 and
    who instructed him to reach Hotel Quality-Inn. This fact, however,
    does not find place in the complaint (Exhibit P-1) and is thus a very
    significant omission. When the pre-trap panchnama (Exhibit P-4) was
    drawn, the complainant (PW-1) modified his version and alleged that
    it was AO2, who telephoned him in the morning and asked him to
    come to the Hotel Quality-Inn with the bribe amount. This apparent
    modulation by the complainant (PW-1) regarding the accused who
664                                                          [2024] 7 S.C.R.

                       Digital Supreme Court Reports


       had made the demand again throws a doubt on his conduct and
       credibility. The call detail records proved by PW-6 again decimates the
       version of the complainant (PW-1) because they clearly established
       that no call was made from the mobile number of the appellant (AO1)
       to the mobile number of the complainant (PW-1) after 17th January,
       2003. As against the noting in the pre-trap panchnama (Exhibit P-4),
       the complainant (PW-1), during his sworn testimony, deposed that
       the phone call was made on 21st March, 2003 by both the appellant
       (AO1) and AO2. The complainant (PW-1) also alleged that after the
       pre-trap proceedings, the DySP (PW-10) called Ramesh Naidu (PW-
       2) and instructed him to act as a shadow witness. However, the fact
       remains that Ramesh Naidu (PW-2) had already been asked by the
       complainant (PW-1) to accompany him in the trap proceedings. The
       complainant (PW-1) further alleged that a little while after he and
       Ramesh Naidu (PW-2) had occupied one table in the said coffee
       shop, the mediators and Inspector N. Chandrasekhar (PW-11) also
       came to the coffee shop and occupied a nearby table. The appellant
       (AO1) entered the coffee shop after some time and took the chair
       opposite to the ones wherein the complainant (PW-1) and the shadow
       witness were sitting. The appellant (AO1) asked the complainant
       (PW-1) whether he had brought the bribe amount of Rs.5,000/- to
       which the complainant (PW-1) replied in affirmative. When the
       complainant (PW-1) was about to handover the tainted currency notes,
       the appellant (AO1) hesitated and said that the amount should not
       be given in the coffee shop. The complainant (PW-1) was directed
       by the appellant (AO1) to proceed to the cellar of the hotel and
       accordingly, both he and PW-2 proceeded to the cellar and reached
       the generator room. There, the appellant (AO1) opened the zip of
       his rexine bag and instructed the complainant (PW-1) to place the
       bribe money inside the same. The complainant (PW-1) complied and
       placed the tainted currency notes in the rexine bag of the appellant
       (AO1). The appellant (AO1) then handed him the papers which were
       prepared during the inspection of the saw-mill by the Flying Squad.
       This version of the complaint was corroborated only by Ramesh
       Naidu (PW-2). However, the version of the complainant (PW-1) and
       PW-2 that the appellant (AO1) while sitting inside the coffee shop,
       initially demanded the bribe and then refused to accept the same
       does not find corroboration from the evidence of K. Srinivas Rao
       (PW-3) and the Inspector (PW-11). If at all, the complainant (PW-1)
       and the appellant (AO1) were sitting on the table adjoining the one
[2024] 7 S.C.R.                                                       665

                Mir Mustafa Ali Hasmi v. The State of A.P.


     on which the panch witnesses and the Inspector, N. Chandrasekhar
     (PW-11) were sitting then, these persons would not have missed out
     hearing the appellant (AO1) demanding the bribe from the complainant
     (PW-1). In total diversion to the version of the complainant (PW-1)
     and PW-2, the panch witness (PW-3) and the Inspector (PW-11)
     did not utter a word in their testimonies, that they both went to the
     coffee shop and occupied a table adjacent to the table where the
     complainant (PW-1), PW-2 and the appellant (AO1) were sitting.
     This can be supported by post-trap panchnama (Exhibit P-11), which
     also doesn’t elucidate on the fact that K. Sriniwas Rao (PW-3) and
     Inspector (PW-11) heard the conversation of the complainant (PW-
     1) and the appellant (AO1). Thus, it can be presumed and put the
     Court on guard that the testimonies of PW-3 and PW-11 and the
     post-trap panchnama (Exhibit P-11) distorted the facts.
52. Thus, there is a grave suspicion on the story as put forth by the
    prosecution that the accused, the appellant (AO1) demanded the
    bribe money from the complainant (PW-1) while in the coffee shop
    of Hotel Quality-Inn.
53. In view of the above analysis and elaboration of evidence, we
    have no hesitation in holding that the prosecution miserably failed
    to prove the factum of demand of bribe against the appellant
    (AO1) by reliable direct or circumstantial evidence. The allegation
    regarding acceptance of bribe by the appellant (AO1) is primarily
    based on the evidence of the complainant (PW-1) and PW-2 and
    the DySP (PW-10). From the extracted portion of the deposition of
    the complainant (PW-1) supra, it is comprehensible that he admitted
    that the appellant (AO1), forgot his rexine bag in the coffee shop
    and that the complainant (PW-1) picked up the same and handed it
    over to the appellant (AO1). Thus, unquestionably, the complainant
    (PW-1) had the opportunity to plant the tainted currency notes into
    the bag being carried by the appellant (AO1).
54. As we have observed above that the entire case seems to have been
    planned at the behest of M. Ashok, it is clear that the complainant
    (PW-1) was simply used as a tool to get the appellant (AO1) trapped
    on made up allegations. The High Court while discussing the case,
    brushed aside the said part of the evidence of the complainant
    (PW-1) by observing that the same was an afterthought. However,
    the fact remains that these vital facts were elicited during the cross-
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       examination of the complainant (PW-1) and hence, the benefit thereof
       would have to be given to the appellant (AO1) more particularly as
       the prosecution did not make any effort to clarify this anomaly by
       way of re-examination. If at all, the prosecution felt that the captioned
       admission extracted above as appearing in the cross-examination
       of the complainant (PW-1) was a material deviation from the case
       set up by the prosecution, then, the public prosecutor was under
       an obligation to re-examine the witness to remove the anomaly.
       Having failed to do so, the prosecution cannot be permitted to cry
       foul that the decoy complainant (PW-1) modulated his testimony in
       the cross-examination so as to favour the accused. It is admitted
       that the DySP (PW-10) and the other members of the trap party
       were standing outside the coffee shop and thus, they could not
       have seen the sequence of events wherein, the complainant (PW-1)
       picked up the bag of the AO1 (appellant). PW-2, of course denied
       this suggestion, but we cannot be oblivious to the fact that the star
       witness of the prosecution, namely, the complainant (PW-1) himself
       made a candid admission to the suggestion given by the defence
       in cross-examination, that he got unhindered access to the bag of
       the appellant (AO1) and that this fact remained contraversed by
       the prosecution. In addition to the above, this Court has to remain
       conscious of the fact that the prosecution made no effort whatsoever
       to get the wash taken from the hands of the appellant (AO1) and
       the rexine bag examined through the FSL. Hence, there is no
       satisfactory evidence on record to establish that the appellant (AO1)
       had actually handled the tainted currency notes as claimed by the
       complainant (PW-1).
55. After a threadbare analysis and evaluation of the evidence available
    on record, we feel that the prosecution case is full of embellishments
    contradicting and doubting and thus, it would not be safe to convict
    the appellant (AO1) for having demanded and accepted the bribe
    money from the complainant (PW-1). At the cost of repetition, we may
    state that the manner in which M. Ashok S/o Abbaiah was associated
    as a panch witness in the trap proceedings, creates a grave doubt
    that the entire case was orchestrated against the appellant (AO1)
    at the instance of the said M. Ashok.
56. In wake of the discussion made hereinabove, we are of the view that
    the prosecution has failed to bring home the charges against the
[2024] 7 S.C.R.                                                  667

                   Mir Mustafa Ali Hasmi v. The State of A.P.


     appellant (AO1) by leading evidence which can be termed to be of
     unimpeachable character. The AO1 (appellant), therefore, deserves
     to be acquitted of the charges.
57. Resultantly, the impugned judgments dated 2nd August, 2022 and 5th
    August, 2008 are hereby quashed and set aside.
58. The appellant (AO1) is acquitted of the charges. He is on bail and
    need not surrender. His bail bonds are discharged.
59. The appeal is allowed in these terms.
60. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Nidhi Jain