STATE OF ANDHRA PRADESHversusP. VENKATESHWARLU

                        [2015] 6 S.C.R. 262


A                 STATE OF ANDHRA PRADESH
                                  v.
                      P. VENKATESHWARLU
                (Criminal Appeal No.1317 of 2008)
B
                           MAY06,2015
                [PINAKI CHANDRA GHOSE AND
                    UDAY UMESH LALIT, JJ.]
c         PreventionofCorruptionAct, 1988-ss. 7and13(1)(d)
  rlw s. 13(2) - Case of illegal gratification - Trap laid and the
  accused caught demanding and accepting bribe - Conviction
  and sentence uls. 7 and 13(1)(d) rlw s. 13(2) by trial court,
  however set aside by the High Court - On appeal, held:
D Essential ingredient of demand and acceptance of bribe
  proved by the prosecution - Recovery of tainted money
  proved- Same was witnessed by key eye witnesses and their
  testimonies corroborated by other material witnesses -
  Offence u/s. 7 confirmed by the unchallenged recovery of
E the tainted amount - Defense raised various presumptions
  to disprove the prosecution case - However, no evidence
  adduced by accused, to rebut the presumption u/s. 20 -
  Further, the probability of the accused not being present
  cannot be considered - Suggestion that document writers
F set up the trap to implicate the accused cannot be accepted
  - Thus, the order of acquittal by the High Court set aside
  and the order of conviction and sentence by the trial court
  restored.

G         Allowing the appeal, the Court

         HELD: 1.1 In the instant case, the factum of
  demand and acceptance was proved by the recovery of
  the tainted amount and the factum of there being a
H demand has also been stated. The essential ingredient
                          262
        STATE OF A. P. v. P. VENKATESHWARLU                   263


 of demand and acceptance has been proved by the               A
 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
 Prevention of Corruption Act has been confirmed by the        B
 unchallenged recovery of the tainted amount. Thus, it is
 the obligation of the court to raise the presumption
 mandated by Section 20 of P.C. Act. It is for the accused
 respondentto rebutthe presumption, by adducing direct
 or circumstantial evidence, that the money recovered          C
 was not a reward or motive as mentioned u/s. 7 of the
 P.C. Act. The defense raised various presumptions to
 disprove the prosecution case. However, it has not been
 able to adduce evidence, on the basis of which the
                                                               0
 presumption u/s. 20 could be rebutted. [Para 10, 11] [271-
 D-G; 272-B-C]

         1.2 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 E
 alleged demand was made, beyond all doubt. Therefore,
 the probability of his not being present cannot be
 considered. The suggestion as to document writers
 setting up the trap to implicate the accused due to the F
 inimical relations seems to be very farfetched. All the
 remaining suggestions were not adduced by any direct
 or circumstantial evidence, as required under law. [Paras
 1'2-13] [272-G-H; 273-A, D-E]

         1.3 The order of acquittal passed by the High Court G
, is set aside. The judgment and order passed by the
  Principle Special Judge convicting and sentencing the
  accused respondent u/s. 7 and 13(1)(d) rw     s.   13(2) is
  restored. [Para 14] [273-G]
                                                              H
264        SUPREME COURT REPORTS                [2015] 6 S.C.R.


A       Narendra Champaklal Trivedi Vs. State of Gujarat 2012
        (6) SCR 165: (2012) 7 SCC 80; State of Punjab vs.
        Madan Mohan Lal Verma 2013 (7) SCR 1130: (2013)
        14 SCC 153; C.M. Girish Babu Vs. CBI, Cochin, High
        Court of Kerala 2009 (2) SCR 1021: (2009) 3 SCC 779;
B       Jitendra Kumar Vs. State of Haryana 2012 (4) SCR
        408:(2012) 6 sec 204- referred to.
                        Case Law Reference
        2012 (6) SCR 165        Referred to.        Para 10
c       2013 (7) SCR 1130       Referred to.        Para 10
        2009 (2) SCR 1021       Referred to.        Para 11
        2012 (4) SCR 408        Referred to.        Para 12
D           CRIMINALAPPELLATE JURISDICTION: Criminal
      Appeal No. 1317 of 2008.

            From the Judgment and Order dated 10.07.2006 of the
      High Court of A.P. at Hyderabad in Criminal Appeal No. 149
E     of2000.

           S. Udaya Kumar Sagar, Krishna Kumar Singh, D.
      Mahesh Babu for the Appellants.

            T. Anamika, B. V. Chandan for the Respondent.
F
            The Judgment of the Court was delivered by

         PINAKI CHANDRA GHOSE, J. - 1. This appeal, by
  special leave, has been filed by the State of Andhra Pradesh
G 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.
H
          STATE OF A. P. v. P. VENKATESHWARLU                          265
              [PINAKI CHANDRA GHOSE, J.]

           2. The facts of the present matter before us are that        A
  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           8
  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         c
  pay the said bribe amount, he approached the Deputy
  Superintendent of Police, Anti Corruption BurE?au, Warrangal
  (P.W. 8) and lodged a complaint on 20.3.1995, who registered
  a case in Crime No.17'ACB-WKH/95 under Sections 7 and
  11 of Prevention of Corruption Act, issued FIR and took up           D
  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.          E
  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        F
  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,        G
  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
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266         SUPREME COURT REPORTS                   [2015] 6 S.C.R.


A     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
 8    were present there. When the complainant enquired about the
      registration fee of the document, the responc:lent said it would
      amountto Rs.81/-. The complainant took out Rs.81/-from inner
      pocket of his banian (vest) and gave it to respondent, who
c     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
D     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.
 E    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
 F    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
G     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
H
       STATE OF A. P. v. P. VENKATESHWARLU                       267
           [PINAKI CHANDRA GHOSE, J.]

in the drawer. Post trap Panchnama was prepared and the           A
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.
                                                                  B
        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 C
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 D
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 E
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 F
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 G
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, butnotthatofthecomplainant, H
268        SUPREME COURT REPORTS                   [2015] 6 S.C.R.


A 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
8
  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
c 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
D 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.
 E
             5. We have heard the learned counsel appearing for
      the State of Andhra Pradesh as also the learned counsel·
      appearing for the respondent.

 F      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
G 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
H prosecution, the High Court in the impugned judgment had
        STATE OF A. P. v. P. VENKATESHWARLU                       269
            [PINAKI CHANDRA GHOSE, J.)

given more weightage to the evidence of defense with regard        A
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
                                                                   8
is notfatal 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 C
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 0
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 E
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 F
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 G
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 H
270         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A 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. 0. demanded from the de facto complainant to pay the bribe
B 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
c to show that he accompanied P. W.1 and de facto complainant
  to the office of the A. 0. where he witnessed that the A. 0. 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
D 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
E     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
 F    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
G 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, 11and13 of the Act. This Court has observed in
H Narendra Champak/al Trivedi Vs. State of Gujarat, (2012)
        STATE OF A. P. v. P. VENKATESHWARLU                    271
            [PINAKI CHANDRA GHOSE, J.]

7 SCC 80, that there has to be evidence adduced by the A
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
                                                                  8
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 c
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 D
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 E
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       F
of Kera/a, (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
                                                                 G
  with the offence cou Id 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       H
272         SUPREME COURT REPORTS                     (2015] 6 S.C.R.


A        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
B 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.

c               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
D
      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
E     March, 1995. The facts of the case also bring to light thatthe
      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,
F     (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
G     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.
H
        STATE OF A. P. v. P. VENKATESHWARLU                   273
            [PINAKI CHANDRA GHOSE, J.]

         13. One of the suggestions given by the accused A
 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, 8 .
 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 qf Rs.81/-'he was cari-Ying in the    c
 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 D
 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 E
  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 CriminalAppeal F
  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 G
  and 13(1)(d) read with Section 13(2) of P.C.Actand 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.
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274          SUPREME COURT REPORTS               [2015] 6 S.C.R.


A     Both the substantive sentences are to run concurrently. This
      appeal is accordingly allowed.

      Nidhi Jain                                     Appeal allowed.


 B