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2020 DIGILAW 792 (AP)

State of A. P. v. Tumati Ravi Kumar

2020-12-10

C.PRAVEEN KUMAR

body2020
JUDGMENT : C. Praveen Kumar, J. 1. Heard Sri. S.M. Subhani, on behalf of Smt. Manchikala Renuka, Standing Counsel for the Anti-Corruption Bureau representing the State and Sri. Kambhampati Ramesh Babu, learned Counsel on behalf of the Respondent/Accused Officer. This Criminal Appeal is disposed of through BlueJeans video conferencing App. 2. Assailing the Judgment of Acquittal, dated 08.01.2007, in C.C. No. 23 of 2001 on the file of the Special Judge for SPE & ACB Cases, Vijayawada, wherein, the Respondent/Accused Officer, who was tried for offences punishable under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, was acquitted, the present Appeal came to be filed by State represented by A.C.B., under Section 378 (1) & (3) of Cr.P.C. 3. The substance of the Charge against the Accused Officer is that, while working as Sub-Inspector of Police, he is alleged to have demanded a sum of Rs. 5,000/- on 12.05.2000, and subsequently reduced and accepted Rs. 3,000/- from PW1 as illegal gratification other than legal remuneration, for doing official favor, of recovering the amount due to PW1 from Akula Nageswara Rao. 4. Before proceeding further with the case, it is to be noted that, at the time when the matter is taken up, Sri. Kambhampati Ramesh Babu, learned counsel appearing for the Respondent stated across the Bar, on instructions from his client, that the Respondent/Accused Officer herein was terminated from services on the ground that he was unauthorizedly absent from duty. The said order of termination, which was said to have been made in the year 2006-2007, has become final, as such, the Petitioner will not be entitled to any benefits in-spite of any order passed by this court in this Appeal. In-fact, he would submit that, after the order of acquittal in C.C. No. 23 of 2001, the Accused Officer never made any effort either to get himself reinstated or challenge the order of termination made earlier. 5. The facts, of the case, are that, PW1, who was doing kirana business on credit basis gave items to one Akula Nageswara Rao and as on 06.05.2000, he was due a sum of Rs. 88,544/-. 5. The facts, of the case, are that, PW1, who was doing kirana business on credit basis gave items to one Akula Nageswara Rao and as on 06.05.2000, he was due a sum of Rs. 88,544/-. As PW1 was not having any documentary evidence, evidencing the amount due and the goods supplied and in view of the attitude of the said Akula Nageswara Rao in not heeding the request of PW1 for payment of the amount due, PW1 met the Accused Officer, who was working as Sub-Inspector of Police, for the needful. Accused Officer is said to have requested PW1 to give a report in writing, but, as PW1 does not know how to draft a report, the Accused Officer is said to have drafted a report and directed PW1 to get it typed. Ex. P1 is the said report prepared by the Accused Officer and Ex. P2 is the Photostat of the typed written report, dated 13.05.2000, which was addressed to Accused Officer. After receipt of the report, the said Nageswara Rao came to the office of the Accused Officer on being summoned, wherein, he agreed to pay the said amount to PW1 and accordingly, requested sometime, but, no amount was paid even after considerable period of time. PW1 again approached Accused Officer, who informed him that he will enquire the matter with Nageswara Rao. All this happened in the month of July 2000. 6. It is the case of the prosecution that, Accused Officer initially demanded a sum of Rs. 5,000/- and subsequently reduced it to Rs. 3,000/- for favoring PW1, i.e., to take action against Nageswara Rao. As PW1 was not willing to pay the bribe, he took the help of one Srinivasa Rao and proceeded to the office of ACB and lodged a report with PW4. On 15.07.2000 at 4.00 p.m., PW4 made enquiries, basing on instructions of his higher authorities. 7. PW5 is the Dy. S.P., A.C.B., who on receipt of the report through PW4, registered a case in Crime No. 11/ASCB-VJA/2000 under Section 7 of Prevention of Corruption Act. Ex. P13 is the original First Information Report. He instructed PW4 to secure mediators, and accordingly, on the same day visited the Office of the District Inspector, Guntur, and found the mediators as well as PW1. They were introduced to his staff and vice-versa. Thereafter, PW5 called PW1 and introduced them to mediators. Ex. P13 is the original First Information Report. He instructed PW4 to secure mediators, and accordingly, on the same day visited the Office of the District Inspector, Guntur, and found the mediators as well as PW1. They were introduced to his staff and vice-versa. Thereafter, PW5 called PW1 and introduced them to mediators. PW5 gave a copy of the First Information Report to mediators and requested them to verify the contents of the report and ascertain the genuineness of the complaint from PW1. PW1 confirmed the contents of his report as true and correct. Thereafter, PW1 produced the alleged bribe amount of Rs. 3,000/-, which contains 25 x 100/- and 1 x 500/-, to be given as bribe to Accused Officer. On instructions of PW5, the mediators verified the serial numbers of the notes and recorded the same in pre-trap proceedings. Thereafter, a Constable applied phenolphthalein powder to the currency notes, made them into a wad and kept them in the empty left side shirt pocket of PW1. Then, the Constable prepared sodium carbonate solution and when he rinsed both his hands, the sodium carbonate solution turned pink into colour. The significance of phenolphthalein test was informed to PW1 and PW2. At the time of keeping the amount in the shirt pocket of PW1, he was informed that he should not touch the notes kept in his shirt pocket, and only on demand made by the Accused Officer, the amount should be removed from his pocket, to be paid to the Accused Officer. M.O.1 and M.O.2 are samples of sodium carbonate and phenolphthalein powder. Ex. P7 is the pre-trap proceedings of mediators report. 8. After completing the pre-trap proceedings, the entire raid party including PW5 proceeded in two vehicles and reached the office of the Accused Officer at 5.30 p.m. The vehicles were parked at a distance of 50 yards to the office of Accused Officer. PW1 was instructed to proceed to the office of the Accused Officer and pay the money only on demand. PW1 was further instructed to give a signal after the acceptance of money by the Accused Officer. Accordingly, at 5.55 p.m., the trap party received a signal from PW1. He along with mediators rushed in to the office of Accused Officer. They asked PW1 to wait outside. The raid party found one person coming out in uniform and proceeding towards nearby vehicle parking area. Accordingly, at 5.55 p.m., the trap party received a signal from PW1. He along with mediators rushed in to the office of Accused Officer. They asked PW1 to wait outside. The raid party found one person coming out in uniform and proceeding towards nearby vehicle parking area. After ascertaining his identify, the trap party disclosed their names. When the Accused Officer was about to move, PW5 and others put him into his office room by pushing. Immediately, sodium carbonate solution was prepared and the right hand fingers of the Accused Officer when subjected to test proved positive. 9. When asked about the tainted amount, the Accused Officer picked it out with a handkerchief from his right side pant pocket, which were seized by PW5 i.e., cash of Rs. 3,000/- [M.O.3]. The mediators were asked to verify the serial numbers mentioned in the pre-trap proceedings, which tallied. Thereafter, the handkerchief was subjected to sodium carbonate, which also proved positive. M.O.4 and M.O.5 are the resultant solutions of sodium carbonate of right and left hand fingers of Accused Officer. M.O.6 is the handkerchief of the Accused Officer. PW5 enquired with Accused Officer as to what happened in between himself and PW1 and his version was recorded in mazahar. 10. The evidence of PW5 further discloses that, after recording the explanation of the Accused Officer, he called PW1 and enquired with him as to what happened between him and the Accused Officer. The statement given by him was recorded in the 2nd mediator report, which is placed on record as Ex. P11. PW5 seized Ex. P8 and Ex. P9 and drafted rough sketch of the scene, which is marked as Ex. P10. The Accused Officer was arrested and thereafter, he was released on bail. 11. PW4 who took up further investigation, examined the witnesses and his successor, after collecting all the necessary documents filed the charge-sheet, which was taken on file as C.C. No. 23 of 2001. 12. On appearance of the Accused Officer, copies of all documents as required under Section 207 Cr.P.C. were furnished and charges as referred to earlier, came to be framed, read over and explained to the Respondent/Accused Officer, to which he pleaded not guilty and claimed to be tried. 13. In support of its case, the prosecution examined PW1 to PW6 and got marked Ex. P1 to Ex. P14, beside MO.1 to MO.7. 13. In support of its case, the prosecution examined PW1 to PW6 and got marked Ex. P1 to Ex. P14, beside MO.1 to MO.7. After completion of the prosecution evidence, the Respondent/Accused Officer was examined under section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, however, no defence evidence was adduced by the Accused Officer. 14. After analyzing the evidence available on record and in view of the fact that PW1 and PW2 did not support the prosecution case, the trial court acquitted the Accused Officer. Assailing the same, the State -A.C.B., preferred the Appeal. 15. The learned Standing Counsel for Anti Corruption Bureau would contend that, though, PW1 was declared hostile, at a later point of time, but, his evidence on record establish not only demand but also acceptance of money, apart from existence of an official favour. The learned Standing Counsel would further contend that, when the right hand fingers of the Accused Officer turned positive to phenolphthalein test, a presumption has to be drawn that the amount was accepted as illegal gratification and that the finding given by the trial court that there is no evidence with regard to demand and acceptance is not correct. 16. The learned Counsel for the Respondent/Accused Officer would submit that, there is any amount of doubt with regard to the recovery of the amount. According to him, the money was forcibly thrust into the pocket of the Accused Officer by keeping it in handkerchief and for that reason, the inner-lining of the pant did not turn positive to the phenolphthalein test. He further pleads that, the trap party pushed the Accused Officer while he was leaving the office and he was forcibly taken to his seat and in the process, the amount was forcibly kept in the pocket. The Counsel took me through the evidence and the findings given by the trial court to show that the evidence on record, prima facie, establish thrusting of money into the pocket of the Accused Officer. 17. The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the Accused Officer beyond reasonable doubt? 18. As seen from the record, PW1 and PW2 were declared hostile by the prosecution. 19. 17. The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the Accused Officer beyond reasonable doubt? 18. As seen from the record, PW1 and PW2 were declared hostile by the prosecution. 19. In a case arising under the provisions of Prevention of Corruption Act, the prosecution has to prove the demand, acceptance, and whether any official favor is pending with the Accused Officer. OFFICIAL FAVOR 20. Coming to the defense of the Accused Officer, namely, that there was no official favor pending with him and that, there is no favor which he could have done. PW1, in his evidence deposed that he was doing kirana business and that one Nageswara Rao was running a hotel and as on 06.05.2000, the said Nageswara Rao was indebted to him a sum of Rs. 88,584/-. His demand for repayment of debt proved futile. According to PW1, Accused Officer asked him to give a report in writing, but, as he does not know how to write the report, Accused Officer himself drafted a report and asked PW1 to get himself typed, which he has done. Ex. P1 is the written report by the Accused Officer and Ex. P2 is the Photostat of the typed written report, dated 13.05.2000. These two reports clearly establish that the said Nageswara Rao was due some money to PW1 and that PW1 was not able to recover the same from him. 21. The next point now would be, whether the Accused Officer as Sub-Inspector of Police is bound to recover the amount from the said Nageswara Rao in discharging his official functions as Sub-Inspector? 22. Though, the Counsel for the A.C.B., would contend that, it may not be the duty of the Accused Officer to recover the money, but, still a person aggrieved would normally go to the police seeking help in recovery of the money, in-stead of approaching the Civil Courts. He pleads that, it is developed by practice that people go to police for recovery of the money as well and at times the police were able to settle the issue between the parties. Having regard to the above, he would submit that, there was an official favor, which the Accused Officer could have done to PW1. In-fact, as seen from the record, there was a complaint from PW1, which is placed on record as Ex. Having regard to the above, he would submit that, there was an official favor, which the Accused Officer could have done to PW1. In-fact, as seen from the record, there was a complaint from PW1, which is placed on record as Ex. P2, requesting the police to recover the money and take action against Accused Officer, for which reason only the Accused Officer has requested PW1 to give a report, which he has rightly done. But, as seen from the record, no crime was registered in respect of this transaction. PW1 and Nageswara Rao were called to police station, wherein, Nageswara Rao agreed to pay money, but did not bother to repay the amount, and after waiting for two months, PW1 again approached the Accused Officer in the month of July, 2000. 23. The grievance of PW1, in his evidence is that, the Accused Officer has not taken any action in-spite of he giving a report and, as such, on the advice of one Srinivasa Rao, he claims to have lodged a report, which lead to registration of a case against the Accused Officer. Therefore, two things are required to be noted here. Though, PW1 gave a report vide Ex. P2, pursuant to which, Nageswara Rao was called to the police station and threatened to pay the money to PW1, but, he did not pay the amount. For a period of two months, PW1 kept quiet and did not bother of the same. Subsequently, he in his evidence deposed about the inaction on the part of the Accused Officer, leading to lodging of a report before A.C.B. Under those circumstances, can it be said that there was any favor pending before him, I feel, definitely not. DEMAND 24. Insofar as the demand is concerned, the case of the prosecution is that, in order to recover the amount from Nageswara Rao, who was due a sum of Rs. 88,544/- to PW1, a report came to be lodged by PW1, for which Accused Officer demanded a sum of Rs. 5,000/- initially and later reduced to Rs. 3,000/-. He claims the Accused Officer has called Nageswara Rao to the police station and warned him to clear the debt. Though, Nageswara Rao agreed to do so, but, evaded the payment, and two months thereafter, a report came to be lodged against the Accused Officer. 25. 5,000/- initially and later reduced to Rs. 3,000/-. He claims the Accused Officer has called Nageswara Rao to the police station and warned him to clear the debt. Though, Nageswara Rao agreed to do so, but, evaded the payment, and two months thereafter, a report came to be lodged against the Accused Officer. 25. To prove the theory of the demand, the prosecution relied upon the evidence of PW1 and PW5. Insofar as the evidence of PW1 is concerned, as stated earlier, PW1 in his chief-examination deposed about the demand made by the Accused Officer. But neither does he refer to the dates on which the demands were made nor the amount demanded by him. It is no doubt true that, PW1 did not support the prosecution at later point of time, but, even in the earlier portion of his evidence, is same with regard to demands. Since, the relevancy of the report lodged by PW1 is not disputed by PW1, the learned Counsel for the A.C.B., would contend that, the same is sufficient to show that there was a demand of money. But, it is a settle principle of law that, the First Information Report is not a substantive piece of evidence by itself, unless the contents of which are spoken to by the person who gave the report. It has been held that, admission of the contents of the report may not by itself make the report a substantive piece of evidence to base conviction in the absence of any oral evidence corroborating the contents. 26. In Ram Swaroop Rathur v. State of Madhya Pradesh 2000 Cri. LJ 1882, it was held as under:- "The complaint or the first information report cannot be used as a substantive evidence of the truth of the fact stated therein, that the statements can only be used to show that the evidence of those witnesses given in the Court was false and that the said statement cannot establish that what was stated out of the Court in the said complaint or in the first information report was true". 27. 27. It is also to be noted here that, PW1 was cross-examined at length by the learned Special Public Prosecutor and later PW1 was re-examined after obtaining permission from the court, with regard to the demand of bribe on 12.07.2000 and 13.07.2000, but he could not succeed to prove that Accused Officer demanded bribe on those dates. 28. Insofar as 164 Cr.P.C., statement of PW1 is concerned, though PW1 claims to have referred to the demand of money on the dates mentioned above, but, he admits that the statement came to be made at the instance of police and hence, much reliance cannot be placed. Even otherwise, the statement under Section 164 Cr.P.C., can only be used to contradict the maker and cannot be used as substantive piece of evidence. Having regard to the above, it can be said that the prosecution failed to prove demand. ACCEPTANCE 29. As regards, acceptance of bribe by the Accused Officer as gratification other than legal remuneration for doing an official favor of collecting the due amount from Nageswara Rao, after completing the trap-proceedings, the entire trap party proceeded to the office of the Accused Officer, where PW1 is said to have paid bribe amount to the Accused Officer, which he kept it in his handkerchief initially and later in his right side pant pocket. Immediately, after receipt of the signal, the entire trap party entered the office and noticed the Accused Officer leaving the office. Then the Accused Officer was surrounded by the trap party when he was at his motorcycle and about to leave the Police Station. PW5 asked PW1 to wait outside the Police Station and he verified the identity of the Accused Officer and informed him about his identity. Accused Officer tried to escape, but the trap party caught hold of him and took him inside the S.I.'s room in Ponnur Police Station. The phenolphthalein test was conducted on both hands of the Accused Officer, but, however, only right hand fingers proved positive, which is evident from the evidence of the mediators. Thereafter, the Accused Officer is said to have produced the tainted amount, which was kept in his handkerchief by taking it out from his right side pocket. 30. The phenolphthalein test was conducted on both hands of the Accused Officer, but, however, only right hand fingers proved positive, which is evident from the evidence of the mediators. Thereafter, the Accused Officer is said to have produced the tainted amount, which was kept in his handkerchief by taking it out from his right side pocket. 30. However, PW1 in his cross-examination goes back on what he has stated in the post-trap proceedings, when the learned Special Public Prosecutor drew the attention of the statement recorded under Section 161 Cr.P.C. PW1, in cross-examination, denied about the Accused Officer accepting the bribe of Rs. 3,000/, kept the same in handkerchief and then put it on his right side pant pocket. Therefore, the evidence of PW1, does not establish about the demand and acceptance of money by Accused Officer. 31. Coming to the evidence of PW2, who is one of the mediators and who is none other than the scribe of Ex. P7 and Ex. P8, the pre and post-trap proceedings, he was treated hostile by the prosecution and in the cross-examination of the learned Public Prosecutor, as well as by the Accused Officer, it shows that this witness was treated as hostile at a very later point of time. But, however, it would be appropriate to extract the relevant portion in the evidence of this witness, which is as under: "He stated that at about 5.55 p.m., we received pre arranged signal from PW1 and on that we rushed into the police station. At that time A.O. was about to leave the station in motorcycle. We the trap party members surrounded him. The A.O. was trying to escape and we took the A.O. into his office room". "The Dy.S.P. also got conducted S.C. solution test to the inner linings of right side trouser pocket but there was no change in the colour". "It is true the road shown opposite to the police station in Ex. P10 - sketch is a very busy traffic road". "I along with the other mediator and Dy. S.P. was standing at V1 position area as shown in Ex. P10. The Dy.S.P. received the pre arranged signal. It took 5 minutes for the trap party to enter the police station compound by crossing the road in front of police station avoiding traffic". "The Dy.S.P. and others entered the police station first. S.P. was standing at V1 position area as shown in Ex. P10. The Dy.S.P. received the pre arranged signal. It took 5 minutes for the trap party to enter the police station compound by crossing the road in front of police station avoiding traffic". "The Dy.S.P. and others entered the police station first. By the time myself and other mediator entered the compound of the police station, the Dy.S.P. and his staff were found surrounding the accused. Because the trap party officials surrounded the accused, I could not see whether the A.O. was sitting on the motorcycle or not. There may be a distance of 100 yards from the seat of the A.O. to the place where the A.O. was surrounded by the trap party as shown in Ex. P10". "It is true I did not personally see the manner of surrounding the A.O. by the trap party officials, the manner of taking the A.O. from the place of surrounding to his office room, the manner of making him sit in a chair are not in my personal knowledge and I have incorporated all the aid details in Ex. P11 believing them to be true to the dictation of Dy.S.P., A.C.B.". "It is true that in page no. 2 of Ex. P11 a line was inserted ignoring the spacing of the other lines with the mid portion of the page. I did not see the alleged trial of the A.O. to push the trap party and escaped from them". "By the time we entered the police station premises the S.I. was made to sit on the chair. I did not see what transpired between the trap party taking the accused and physically handled by the A.C.B. officials and was dragged to the Station House Officer's room". "The Dy.S.P. did not enquire to ascertain as to whether the kerchief i.e., MO6 belongs to the accused or not in our presence. The Accused did not handover the kerchief and the tainted currency to the trap party to my seeing. It is true even without seeing the accused taking out kerchief from his pant pocket and placing it on the table I wrote it in Ex. P11 as dictated by the Dy.S.P. believing it to be true. The Dy.S.P. did not conduct any S.C. solution test on the part of the table where PW1 alleged to have kept the tainted currency. P11 as dictated by the Dy.S.P. believing it to be true. The Dy.S.P. did not conduct any S.C. solution test on the part of the table where PW1 alleged to have kept the tainted currency. I did not see how the S.C. solution test was conducted on the pant of the A.O. and the same is incorporated in Ex. P11". 32. The other witness relied upon by the A.C.B., is that of PW3 - mediator, who deposed as under: "After surrounding the A.O., he questioned about our identity. The Dy. S.P., explained his identity and on that the A.O. tried to escape, the A.C.B. Officials caught hold of the upper arm of the A.O., and took him to the seat of the A.O." In cross-examination, PW3 admitted, as under: "After receiving signal the police officials entered first and we followed. Within 5 minutes we followed the A.C.B. Officials. I did not notice which of the A.C.B. officials caught hold of the accused on which part of the accused. But I remember there are four persons comprising two Inspectors and two Constables. I do not know that the A.O. on disclosure of the identity of the A.C.B. officials insisted that S.C. solution test must be conducted on his person then and there itself. All the four A.C.B. officials firmly caught hold of the accused and took him into the police station. I do not know how many folds were there to kerchief and in which of the fold the tainted currency was there. The details of the kerchief and the details of presence of tainted currency inside the kerchief was not noted in Ex. P11. Myself and other mediator did not unfold the kerchief and examined. The entire kerchief was subjected to S.C. solution test. The Dy. S.P. did not conduct any separate enquiry to ascertain as to whether the kerchief belongs to A.O. or not. It is true that the road is in front of the police station and it is a very busy traffic road and at about 6.00 p.m., there will be heavy traffic on the road". 33. From the evidence of PW1 to PW3, there is nothing which is useful to the prosecution. The evidence of these witnesses does not establish any demand or acceptance of money as illegal gratification other than legal remuneration. 33. From the evidence of PW1 to PW3, there is nothing which is useful to the prosecution. The evidence of these witnesses does not establish any demand or acceptance of money as illegal gratification other than legal remuneration. At the same time, the evidence does not, in any way, establish the existence of any official favor pending with the Accused Officer. 34. In-fact, the evidence of PW1 appears that, he kept the money on the table of the Accused Officer, which the Accused Officer took it with his right hand and thereafter, placed on handkerchief, rolled it and then kept in his pant pocket. This version appears to have been brought into the existence, for the reason that, the left hand of the Accused Officer when tested with phenolphthalein test did not prove positive. It may be true, technically speaking, it could be done, but, normal human conduct would be to use two hands while spreading the handkerchief, placing the money on the handkerchief, rolling it and then keeping it in right side pocket. Even assuming, for the sake of argument that, the Accused Officer has used only his right hand and put the entire bunch of notes into the pant pocket, definitely, the pant pocket will come into contact with the phenolphthalein powder. But, as seen from the mediator report, the pant pocket proved negative to phenolphthalein test. In view of the above, the theory that the money was forcibly kept by some person by rolling it in handkerchief and the possibility of money being thrust into the pant pocket of the Accused Officer cannot be ruled out, more so, when the Accused Officer was surrounded by the trap party when he was at his motorcycle, from where he was forcibly taken. Apart from that, prosecution failed to prove that the handkerchief in which the money was found, belongs to the Accused Officer, more so, when the Accused Officer has taken plea that the handkerchief does not belong to him. The prosecution should have made some effort to prove the same. 35. Further, mere recovery of money by itself, in my view, may not be sufficient to show that the money was received an illegal gratification by Accused Officer from PW1 for doing official favor. Definitely things would have been different had any material been placed to show that this amount was paid as bribe by PW1. 35. Further, mere recovery of money by itself, in my view, may not be sufficient to show that the money was received an illegal gratification by Accused Officer from PW1 for doing official favor. Definitely things would have been different had any material been placed to show that this amount was paid as bribe by PW1. On the other hand, PW1 and PW2 do not anywhere indicate the payment of money to Accused Officer. Therefore, in my view, the prosecution failed to prove the demand and in the absence of evidence to show that the money was paid as illegal gratification; mere recovery of money, may not be sufficient to convict the Accused Officer for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. 36. In P. Satyanarayana Murthy v. District Inspector of Police and Anr., (2015) 10 SCC 152 the Apex Court held that, mere possession and recovery of currency notes from an accused without proof of demand would not establish Section 7 as well as Section 13(1)(d)(i) & (ii) of the Prevention of Corruption Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Dealing with the same, the Court observed as under: "The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." 37. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." 37. The said principle was reiterated by the Apex Court in Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjab (2017) 8 Supreme Court Cases 136, as under:- "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder." 38. In fact, in C.M. Sharma v. State of Andhra Pradesh etc., LAWS (SC) 2010 (11) 84 the Apex Court held as under: "In support of the submission reliance has been placed on a decision of this Court in the case of Panalal Damodar Rathi v. State of Maharashtra (1987) Suppl. SCC 266 and our attention has been drawn to the following paragraph of the judgment: "26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion." In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. Another decision on which reliance is placed is the decision of this court in the case of State of Maharashtra v. Dyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in which it has been held as: "16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety." 39. From the judgments referred to above, it is clear that the Apex Court has categorically held that, in order to prove a charge under Sections 7 and 13 of 1988 Act, the prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. The Apex Court held that till that is accomplished, accused should be considered to be innocent. The Apex Court held that till that is accomplished, accused should be considered to be innocent. The proof of demand of illegal gratification, thus, is the gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of 1998 Act and in the absence thereof, unmistakably the charge, therefore, would fail. The Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de-hors proof of demand, ipso facto, would thus not be sufficient to bring home the charge under aforesaid two sections. 40. In State of Punjab v. Madan Mohan Lal Verma 2013(3) MLJ (Crl.) 565, the Hon'ble Supreme Court held that, mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification'. It is appropriate to incorporate paragraph No. 7 of the said judgment, which reads thus: "7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person." 41. It is also to be noted that, this being an appeal against acquittal, interference is impermissible, unless the judgment of acquittal tends to be perverse or unless the inferences drawn in acquitting the accused was not reasonable. [The State Rep. By CBI, Hyderabad v. G. Prem Raj] AIR 2010 SC 793 . 42. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr. (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 43. Having regard to the law laid down by the Apex Court and as the evidence available on record is not cogent and convincing; this court is of the opinion that, the Judgment under challenge requires no interference. 44. In the result the appeal fails and it is accordingly dismissed, confirming the acquittal of the Respondent/Accused Officer for the offences punishable under Section 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, passed in C.C. No. 23 of 2001, on the file of the Special Judge for SPE & ACB Cases, Vijayawada, on 08.01.2001. 45. Consequently, miscellaneous petitions pending, if any, shall stands closed.