JUDGMENT Heard Sri C. Padmanabha Reddy, learned Senior Counsel appearing for Al in Crl. A No. 1036 of 2005, Sri B. Vijaysen Reddy, learned Counsel appearing for A2 in Crl. A No. 1034 of 2005, and Sri G. Ravi Mohan, learned Counsel appearing for A3 in Crl. A No. 1087 of 2005 and Sri R. Rama Chandra Reddy, learned Standing Counsel for ACB appearing for respondent-State. 2. Since all these appeals arise out of the judgment dated 24.6.2005 passed in CC No. 1 of 1995 by the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, Hyderabad, and as common questions of law and fact would arise for consideration, they are being disposed of by the following common judgment. 3. For the sake of convenience, appellants in all the three cases will be referred to as A1 to A3. 4. The brief facts of the case are that PW 1 under the name and style “M/s. Prakash Builders Private Limited” started construction of "Srinidhi Apartments" at Gandhi Nagar, New Bakaram, Hyderabad. While the construction work was under progress, he applied for electricity connection. A 1 - V. Rama Mohan Rao was the Assistant Divisional Engineer. A2-M.P. Suresh was the Assistant Engineer. A3-S. Raja was the Line Inspector. All the three accused were authorized to provide service connection to Srinidhi Apartments of PW1. The prosecution version is that A1 to A3 were delaying the matter for one reason or the other. It is stated that on 5.3.1993, when A2 and A3 visited the said Apartment, PW1 requested them to provide permanent electricity connection. A2 demanded Rs. 5,000/- for the said purpose and stated that out of the said amount, an amount of Rs. 2,500/- will be shared by him and A3. On 9.3.1993 at about 3.00 p.m., PW1 along with his brother PW6-D. Rajeswar Rao, met A 1 at his office and requested him to provide permanent connection to the Apartment. But A1 demanded bribe amount of Rs. 2,500/- and stated that unless his demand was met, connection would not be given and if PW 1 agrees and pays the same, he would instruct A2 and A3 to give electricity connection by the next day itself i.e., 10.3.1993. PW1, who was not willing to pay the bribe amount as demanded by A1, approached PW7-Deputy Superintendent of Police, ACB, on 9.3.1993, and lodged a complaint with him. PW1, who was not willing to pay the bribe amount as demanded by A1, approached PW7-Deputy Superintendent of Police, ACB, on 9.3.1993, and lodged a complaint with him. Basing on the said complaint, a case in RC No.3/ACB-CR/93 under Sections 7 and 11 of Prevention of Corruption Act, 1988 (for short 'the Act') was registered and investigated into. Subsequently, trap was laid on 10.3.1993. During the course of trap, according to the prosecution, A2 and A3 came to Srinidhi Apartments at 6.45 p.m., and A2 received two wads of currency notes of Rs. 2,500/- from PW1 and demanded Rs. 2,500/- as share of bribe amount for A1. PW1 took out both the wads of tainted currency notes from his shirt and pant pockets, respectively handed them over to A2. Then PW1 came out and displayed pre-arranged signal, the trap party led by PW7 rushed into the apartment and A2 was subjected to the phenolphthalein sodium carbonate test, which was found to be positive. Thereafter, tainted amount of Rs. 5,000/- was recovered from the person of A2 by PW7-DSP, ACB and a charge-sheet was laid against A 1 to A3 after completing investigation. In the course of trial, A 1 to A3 were indicted of accepting bribe from PW 1. 5. Charges under Sections 7, 13(1)(d), 13(2) of Prevention of Corruption Act, 1988 read with Section 34 of IPC were framed. 6. To prove the said indictment, the prosecution examined PWs.1 to 7 and marked Exs. P1 to P16 and Mos. 1 to 10. On behalf of the defence, DWs. 1 to 4 were examined and Exs.D 1 to D4 were marked. Exs.X 1 to X 5 were also marked. 7. PW 1, who is the de facto complainant in this case, is the key witness. He did not fully support the prosecution version. His evidence before the trial Court was to the following effect: On 5.3.1993, A2 and A3 came to Srinidhi Apartments and inspected all the cables and transformers. When he asked them as to when they were not giving regular electricity connection, they replied that the file was with the higher authorities. On 6.3.1993, PW1 tried to contact A1, but he was out of station. When he met A3, A3 stated that the matter was with the higher authorities and that whenever they receive instructions, they will give connection. On 6.3.1993, PW1 tried to contact A1, but he was out of station. When he met A3, A3 stated that the matter was with the higher authorities and that whenever they receive instructions, they will give connection. According to PW1, as A 1 to A3 were delaying the matter, on 9.3.1993 he went to the ACB Office, met the DSP, ACB and told him the problem faced by him. PW7 asked him to give a written complaint. Accordingly, he gave Ex.P 1-written complaint. On the next day i.e. on 10.3.1993 as per the instructions of PW7, he came with an amount of Rs. 5,000/- and trap was laid. At 4.15 p.m., they reached Srinidhi Apartments. Two persons came along with PW 1 in his car. DSP and the remaining trap party came in a jeep behind his car. At about 6.30 p.m., A2 and A3 came to his office and he gave Rs. 5,000/- to A2. A2 kept that amount in his left side pant pocket by clubbing both the currency notes wads. As instructed by the DSP, PW1 came out of the office room and gave the pre-arranged signal and the trap party rushed there and phenolphthalein sodium carbonate reaction test was conducted on A2, which was found to be positive. 8. Though it was mentioned in Ex.P 1-complaint lodged by PW1 that A1 is the person, who demanded illegal gratification of Rs. 5,000/-, PW 1 did not speak about the demand of bribe by A1 in his evidence before the trial Court. He stated about his giving the tainted amount of Rs. 5,000/- to A2 in the presence of A3 in two bundles and A2 receiving the said amount from him. PW 1 stated in the cross-examination by Special Public Prosecutor that Ex.P 1 complaint is drafted to the dictation of DSP, ACB. 9. The defence version in this case is that PW 1, by obtaining permission from the Electricity Department, himself installed a cable, as the cable was not of the required standard, A1 to A3 insisted to replace a new cable of good standard and the same was not complied with by PW1. The further defence is that an amount of Rs. The defence version in this case is that PW 1, by obtaining permission from the Electricity Department, himself installed a cable, as the cable was not of the required standard, A1 to A3 insisted to replace a new cable of good standard and the same was not complied with by PW1. The further defence is that an amount of Rs. 5,000/- was due from PW 1 to DW2-S.S.S. Mohiuddin Khadri, an electrical contractor, and that PW1 paid the same to A2, A2 received the amount from PW1 for the purpose of paying the same to DW2 and that he did not receive it as bribe. This fact is said to be known to DW1, A2 as well as DW2 on the day of trap. 10. DW1 in his evidence stated that he worked as Assistant Divisional Engineer in 1993. On 15.3.1993, as per the instructions of Divisional Engineer, he inspected Srinidhi Apartments, tested High Tension installations and found that the HT cable connected to the Apartments was defective, moisturized and was not possible to charge and that he intimated the same to the Divisional Engineer. He further deposed that Srinidhi Builders have obtained permission from Superintendent Engineer and Chief Engineer for procurement and execution of work by themselves, accordingly, permission was given for procurement and erection with usual conditions as per ISI standards. After completion of work, according to him, PW 1, the builder, has to file all the necessary test certificates and completion report to the concerned area Engineers and without the test reports and without ensuring quality of work, the installations will not be charged. In the instant case, admittedly, PW1, the builder, did not produce any such test certificates before the Electricity Department. 11. DW2 in his evidence stated that he executed the electricity work of Srinidhi Apartments, in connection with the same, on three occasions, he received an amount of Rs. 10,000/- from A2, which was paid to him by PW1 through A2, an amount of Rs. 5,000/- was still due from PW 1 and when he asked PW 1 for the said amount, PW1 stated that he would pay the same through A2. But, as per this witness subsequently, he did not receive any amount from A2 and on 15.3.1993, he contacted PW1 for which PW1 told to meet him and collect it and hence, he approached PW 1 and collected Rs. 5,000/- directly. But, as per this witness subsequently, he did not receive any amount from A2 and on 15.3.1993, he contacted PW1 for which PW1 told to meet him and collect it and hence, he approached PW 1 and collected Rs. 5,000/- directly. Subsequently, this witness stated PW1 informed him that A 1 was trapped and that A2 was insisting on him to give guarantee bill for the cable. He further stated that PW 1 informed him that the flat owners were not ready to contribute again for purchasing cable, one Balakrishna Rao one of the flat owners is Inspector in CBI, assured PW1 that there was no need to purchase cable again and he would see that old cable is again charged. It is also his evidence that he found the cable was faulty while laying it and he informed the said fact to Balakrishna Rao but still, PW 1 insisted to lay the faulty cable stating that he would manage the authorities. 12. DW3-Additional Assistant Engineer at the relevant point of time stated in his evidence that he received the enclosures on 12.3.1993 and accordingly he sent them through Ex.X5 to the Additional Divisional Engineer. 13. Before the trial Court, A3 offered to examine himself as a defence witness and with the permission of the Court, he was examined as DW4. He stated in his evidence that as a Line Inspector, he is not at all concerned with the charging of the transformer or giving permanent electricity connection to the apartments of PW 1. According to him, on 10.3.1993, he accompanied A2 to Srinidhi Apartments as A2 requested him. He deposed that after reaching the Apartments, A2 informed that he had to collect test certificate for transformer, cable guarantee certificate, work completion report. According to this witness, while conversing with PW1, PW1 handed over some amount to A2 asking him to hand it over to DW2-Moin, sometime thereafter, some officials came there and introduced themselves as ACB officials. 14. PW3, who was the Divisional Engineer at the relevant time, deposed in his evidence that PW 1, after getting permission from the Electricity Department, installed the cable and on 13.3.1993 while the test charge was conducted by the ADEK. Ramaswamy in his presence, the cable failed. According to this witness, he requested the builder to replace the failed cable. 14. PW3, who was the Divisional Engineer at the relevant time, deposed in his evidence that PW 1, after getting permission from the Electricity Department, installed the cable and on 13.3.1993 while the test charge was conducted by the ADEK. Ramaswamy in his presence, the cable failed. According to this witness, he requested the builder to replace the failed cable. When PW1-the builder expressed his inability to procure the cable in the market, the department supplied the cable on making necessary payment and thereafter, new cable was drawn from the stores of the department on 17.3.1993 and the work was executed on the same day and supply was released on 18.3.1993. 15. In his entire evidence, PW1 did not state anywhere that any of the accused demanded bribe from him. His evidence only goes to show that as the matter was being delayed in the hands of A1 to A3, he being vexed with their attitude, approached the ACB and gave a written complaint against them. 16. PW7-DSP, ACB, is the Investigating Officer in this case. He specifically admitted in the cross-examination that the investigation revealed that A1 did not accept any money from PW1 on the date of trap and that A1 was not present during the trap proceedings. He also admitted in the cross-examination that after receiving the written complaint from PW1, no discreet enquiry with regard to the allegations in the complaint was conducted by ACB. He also admitted that he did not make any attempt to get A1 trapped as A1 did not demand any bribe from PW 1. 17. Therefore, from the entire material in this case, there is no iota of positive evidence showing that any of the accused demanded bribe from PW1. The prosecution only relied upon the receipt of tainted amount by A2 from PW 1 and presence of A3 at that time. By the presence of A3 at the time of receiving the amount by A2 his complicity in the crime cannot be said to be made out. As already said, absolutely, even according to the prosecution, there was no material to show that A 1 directly demanded bribe from PW 1. Therefore, this is a case where there is absolutely no evidence showing either A 1 or A3 demanded or accepted the bribe. 18. As already said, absolutely, even according to the prosecution, there was no material to show that A 1 directly demanded bribe from PW 1. Therefore, this is a case where there is absolutely no evidence showing either A 1 or A3 demanded or accepted the bribe. 18. Now the question requires to be considered in this case is whether, on account of receiving the tainted amount, A2 can be convicted having recourse to the presumption envisaged under Section 20 of the Prevention of the Corruption Act, 1988. 19. To arrive at a proper decision, on this aspect, the following judgments relied on by the learned Counsel for the appellants have to be perused. 20. In Suraj Mal v. State (Delhi Admn.), AIR 1979 SC 1408 , the Supreme Court held that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence regarding demand is not reliable. 21. In Suresh Kumar v. State of M.P., 1994 Lab LJ 247, it is held that in absence of the proof of demand by substantive evidence, mere recovery divorced from the circumstances, under which it was paid is not enough to raise a presumption against the accused. 22. In P. Parasurami Reddy v. State of Andhra Pradesh, (2011) 12 SCC 294, the Supreme Court held as under: “It is further admitted in the evidence of PW 1, the complainant that on 11.1.1994, when the accused was tried to be approached, he was not found present in his office. It was, therefore, that the accused approached on the second day i.e., on 12.1.1994. What surprises us is that when two panchas were present in the raiding party and if one of them had accompanied the complainant and noted the conversation between the complainant and the accused that would have given a definite corroboration to the version of the complainant. But that did not happen." 23. In Punjabrao v. State of Maharashtra, AIR 2002 SC 486 , the question before the Supreme Court was whether the Patwari was entrusted the duty of collecting loan amounts from the ryots and accepted the said amount or whether he accepted the same from the complainant as illegal gratification. The fact that during relevant period Patwaris were collecting loans in collection campaign was not in dispute. The fact that during relevant period Patwaris were collecting loans in collection campaign was not in dispute. Accused offered his explanation that the said money was accepted as loan amount from ryots and not as illegal gratification. The Supreme Court said that the explanation offered by the accused cannot be rejected merely on the ground that it was not given at the time of seizure of money by Enquiry Officer. The Supreme Court also held that the explanation offered by the accused for receipt of the alleged amount need not be proved by him beyond reasonable doubt and he can establish his defence by preponderance of probability. 24. The facts and circumstances of the instant case have to be examined in the light of the judgments referred to supra. 25. In this case, there is no direct evidence showing that any of the accused ever demanded bribe from PW1. PW1 only stated in his evidence that as there was inordinate delay in providing permanent electricity service connection to his Apartment, he felt that he was being harassed by A1 to A3. He did not state in his evidence that, at any point of time, the accused demanded illegal gratification from him. 26. Another important factor requires to be considered in the present case is that PW 1 got permission from the Electricity Department for installing the cable by himself and got installed the cable on his own. The evidence on record clearly revealed that the cable was not of required standard and being old one it did not withstand the charge effected and as per the procedure which was being followed by the department, PW1 had to obtain all necessary certificates indicating that the installations required for charging were provided by him, but he did not produce any certificates before the department. Therefore, it seems that as PW 1 was insisting upon the old cable installed by him was to be charged and was reluctant to replace the old one with the new and standard cable, there was delay in providing permanent electrical connection to his Apartment. 27. The evidence of DW2 clearly indicates that as he was entrusted with the electricity work of the 'Apartment of PW 1, he executed the work, an amount of Rs. 5,000/- was due to him from PW 1 and that PW 1 was in the habit of sending money to DW2 through A2. 27. The evidence of DW2 clearly indicates that as he was entrusted with the electricity work of the 'Apartment of PW 1, he executed the work, an amount of Rs. 5,000/- was due to him from PW 1 and that PW 1 was in the habit of sending money to DW2 through A2. Therefore, the defence of A2 that PW 1 gave him the amount of Rs. 5,000/- for the purpose of giving it to DW2 was probabilized. A3, who was examined as DW4, also gave the evidence before the trial Court to the same effect. According to him, he was only a Line Inspector, and he had nothing to do with the providing of permanent electricity connection to the Apartment of PW1. 28. Sri R. Rama Chandra Reddy, learned Standing Counsel for ACB would contend that since it is the case of the prosecution that A2 received an amount of Rs. 5,000/- from PW1, it is obligatory on the pmt of the Court to raise a presumption under Section 20 of the Prevention of Corruption Act, 1988 to the effect that the said amount was received towards illegal gratification. 29. In support of his contention, he relied on a judgment in B. Noha v. State of Kerala, (2006) 12 SCC 277 , wherein the Supreme Court held that when there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive and it has only to be deduced from the facts and circumstances of a particular case. 30. The question therefore to be considered in the present case is as to whether the circumstances justify the contention urged by the learned Standing Counsel for ACB that presumption envisaged under Section 20 of the Act can be raised against A2. 31. As already pointed out, in this case the accused could be able to establish that the electricity connection could not be provided at appropriate time only because of the act of PW1 himself, who installed the faulty cable. The evidence also revealed that when it was charged subsequent to the trap it failed. From the evidence of DW2, it is to be seen that A2 accepted tainted money from PW 1 thinking that the same was given to him for the purpose of giving it in turn to DW2. The evidence also revealed that when it was charged subsequent to the trap it failed. From the evidence of DW2, it is to be seen that A2 accepted tainted money from PW 1 thinking that the same was given to him for the purpose of giving it in turn to DW2. The burden on the accused to rebut the presumption under Section 20 of the Act is that of the standard of preponderance of probability but not that of beyond reasonable doubt. 32. From the evidence of the prosecution witnesses, and also from the evidence of the witnesses examined on behalf of the accused, the accused in this case, in my opinion, are able to displace the burden successfully that the amount was not received towards any illegal gratification. I do not agree with the contention of the learned Standing Counsel for ACB that there was a voluntary and conscious acceptance of tainted money by A2. Therefore, the judgment relied on by him in B. Noha v. State of Kerala (supra), cannot be applied to the present case. 33. For the foregoing reasons, I am of the considered view that the learned trial Court erroneously recorded conviction against the appellants-accused for the offences punishable under Sections 7 and 13(1)(d) of the Act and the appellants are entitled for benefit of doubt. Therefore, the conviction and sentence passed by the trial Court are liable to be set aside. 34. Accordingly, the criminal appeals are allowed setting aside the conviction and sentence imposed against the appellants accused by the Principal Special Judge for SPE and ACB Cases, Civil Court, Hyderabad, vide judgment dated 24.6.2005 in CC No. 1 of 1995. The fine amount, if any, paid by the accused-appellants shall be refunded to them.