JUDGMENT : Challenge in this Criminal Appeal is made by the State, represented by Inspector of Police, Anti-Corruption Bureau (“A.C.B.” for short) Eluru Range, Eluru to the judgment, dated 26.08.2006 in C.C.No.25 of 2002, on the file of Special Judge for SPE & ACB Cases, Vijayawada (“Special Judge” for short) whereunder the learned Special Judge acquitted the Accused Officer (“A.O.” for short) for the charges under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (“P.C. Act” for short). 2) The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Special Judge for the sake of convenience. 3) The case of the prosecution as set out, in brief, in the charge sheet filed before the learned Special Judge pertaining to Crime No.4/ACB-RCT-EWG/2002 of A.C.B., Eluru Range, Eluru, alleging in substance as follows: (a) The A.O. was working as Executive Engineer, Panchayatraj, Eluru, as on 29.01.2002, as such, he is a public servant within the meaning of Section 2(c) of the P.C. Act, 1988. P.W.3 is a native of Chodavaram village, Nallajerla Mandal. He is an agriculturist-cum-Contractor. He met the A.O. at his office on 21.01.2002 with a request to release of his Earnest Money Deposit of Rs.24,600/- pertaining to a contract work of road laying, which was completed by him during the year 1998. On that the A.O. demanded him to pay a bribe amount of Rs.5,000/-, for which P.W.3 expressed his inability, but the A.O. stood on his earlier demand and further threatened him that unless he is bribed, his work will not be done. (b) On 22.01.2002 P.W.3 paid Rs.4,000/- as bribe and on that the A.O. instructed P.W.3 to pay the balance of Rs.1,000/-within 5 or 6 days and to receive the cheque, for which P.W.3 reluctantly agreed to pay the demanded bribe of Rs.1,000/- and as he was not willing to pay the same, he approached the D.S.P. (P.W.7) and presented a report on 28.01.2002. The D.S.P. after observing the necessary formalities registered the case. The D.S.P. after observing the necessary formalities registered the case. (c) On 29.01.2002 at 12-30 p.m., A.O. was successfully trapped by P.W.7 at his office, when he further demanded and accepted the bribe amount of Rs.1,000/- for showing official favour, as gratification other than legal remuneration and when both the hand fingers of A.O. were subjected to chemical tests, they proved positive and the tainted amount was recovered from the left side shirt pocket of A.O. On conducting the S.C. solution test to the inner linings, it proved positive and the D.S.P. seized the tainted amount from his physical possession in the presence of the mediators. (d) The Government of Andhra Pradesh being the competent authority to remove the A.O. from service, issued prosecution sanction orders vide G.O.Ms.No.370, dated 07.10.2002, Panchayatraj and Rural Development Department (Vigilance Section-I) for the above charges. Hence, the case. 4) The learned Special Judge took cognizance of the case under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act. On appearance of the Accused Officer and on compliance of Section 207 of the Code of Criminal Procedure (“Cr.P.C.” for short), the learned Special Judge framed charges under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act against the Accused Officer and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried. 5) In order to establish the guilt against the Accused Officer, the prosecution examined P.W.1 to P.W.8 and got marked Ex.P.1 to Ex.P.20 and M.O.1 to M.O.10. After closure of the evidence of prosecution, the Accused Officer was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in for which he denied the same. He got filed written statement contenting in substance as follows: (i) He never demanded or accepted any bribe amount from P.W.3 and at the instance of unscrupulous and disgruntled contractor by name G. Rambabu (P.W.3) he was implicated in the stage managed foisted case. He got filed written statement contenting in substance as follows: (i) He never demanded or accepted any bribe amount from P.W.3 and at the instance of unscrupulous and disgruntled contractor by name G. Rambabu (P.W.3) he was implicated in the stage managed foisted case. He further stated that during the first week of December, 2001 when the A.O. approached for a hand loan of Rs.1,000/-, on humanitarian grounds he gave the same and he failed to repay the same, for which he chastised him in the presence of his colleague contractors, which resulted in bearing grudge against him and also resulted in foisting this false case and that on 22.01.2002 he received the file relating to P.W.3 from the Divisional Office and immediately he passed orders for return of Earnest Money Deposit for a sum ofRs.24,625/- and thereupon he signed the cheque under Ex.P.1 on 24.01.2002 as per the note, in routine proceedings. It has to be counter signed by the Divisional Accounts Officer-cum-Manager and whenever he was not available and was on leave, he used to sign the cheques. (ii) Coming to the events dated 29.01.2002 while he was attending to his duties in his chamber at about 12-25 p.m., P.W.1 came to him for return of Earnest Money Deposit and he handed over the same to him for attestation. Immediately he signed and returned the same. At this juncture, P.W.3 gave Rs.1,000/- representing that it is the repayment of his hand loan. Then he took it, counted and kept in his shirt pocket which was witnessed by P.W.1. Within a few minutes after leaving P.W.3 from his chamber, the A.C.B. officials came, before whom he spontaneously represented that he has not demanded or accepted any bribe amount from P.W.3 and further stated what all happened as referred to supra. A.O. did not examine any witnesses in support of his contentions. Within a few minutes after leaving P.W.3 from his chamber, the A.C.B. officials came, before whom he spontaneously represented that he has not demanded or accepted any bribe amount from P.W.3 and further stated what all happened as referred to supra. A.O. did not examine any witnesses in support of his contentions. 6) The learned Special Judge on hearing both sides and on considering the oral as well as documentary evidence, found the Accused Officer not guilty of the charges under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act and accordingly acquitted him under Section 248(1) of Cr.P.C. However, the learned Special Judge made categorical finding that P.W.3 appears to have given false evidence and that it is just and necessary and it is expedient in the interest of justice that P.W.3 be prosecuted for the perjury and accordingly made an order of acquittal directing to file a complaint against P.W.3 before the Metropolitan Magistrate or the Judicial Magistrate of First Class for the offence under Section 211 of Indian Penal Code in accordance with the procedure laid under Section 340 r/w 195(1)(b) of Cr.P.C., 1973. Felt aggrieved of the judgment of acquittal, the unsuccessful State filed the present Criminal Appeal. 7) Now, in deciding this Criminal Appeal, the points that arise for consideration are as follows: (1) Whether the prosecution proved that A.O. was a public servant within the meaning of Section 2(c) of P.C. Act and that prosecution obtained a valid sanction in terms of Section 19 of the P.C. Act so as to prosecute A.O. for the charges leveled against him? (2) Whether the prosecution proved the pendency of the official favour to be done by the A.O. in respect of the work of P.W.3 and that prior to the date of trap and on the date of trap, A.O. demanded P.W.3 for bribe of Rs.5,000/-and accordingly, accepted the same in two spells and that he obtained pecuniary advantage by demanding and accepting such amount? (3) Whether the judgment, dated 26.08.2006 in C.C.No.25 of 2002 is sustainable under law and facts and whether there are any grounds to interfere with the same? Point No.1:- 8) Insofar as this point is concerned, the learned Special Judge found favour with the case of the prosecution by looking into the evidence of P.W.4 coupled with Ex.P.5 sanctioned order. (3) Whether the judgment, dated 26.08.2006 in C.C.No.25 of 2002 is sustainable under law and facts and whether there are any grounds to interfere with the same? Point No.1:- 8) Insofar as this point is concerned, the learned Special Judge found favour with the case of the prosecution by looking into the evidence of P.W.4 coupled with Ex.P.5 sanctioned order. The evidence of P.W.4 coupled with Ex.P.5 admittedly proves the valid sanction so as to prosecute the A.O. These findings of the learned Special Judge are not in dispute during the course of hearing on behalf of the respondent/A.O. Point Nos.2 and 3:- 9) The sum and substance of the allegations set out in the report lodged by P.W.3 in Ex.P.3 is that the defacto-complainant deposited Earnest Money Deposit of Rs.24,600/- in the name of Zilla Parishad Executive Engineer for laying metal road. After the execution of work, he had to take back the Earnest Money Deposit. On 21.01.2002 he visited the office of Executive Engineer, Panchayatraj i.e., A.O. to release the Earnest Money Deposit, for which A.O. demanded him to pay Rs.5,000/- for which he made a request that he is not able to comply the demand. However, due to fear for loss of Earnest Money Deposit on 22.01.2002 he paid Rs.4,000/- to A.O. and A.O. further instructed him to pay the balance of Rs.1,000/-within five or six days to receive the cheque. Further the allegations of the prosecution as evident from the post-trap proceedings is that on 29.01.2002 A.O. was trapped when he made further demand so as to receive the balance of Rs.1,000/-and the tainted amount was recovered from the A.O. These are all the allegations set out in the case of the prosecution. 10) The prosecution examined P.W.1, the then Senior Assistant in the office of Executive Engineer, Panchayatraj, Eluru, to prove the pendency of the official favour. P.W.2 was the mediator to the pre-trap and post-trap proceedings. P.W.3 was the defacto-complainant who was said to have lodged Ex.P.3 and participated in the pre-trap and post-trap proceedings. P.W.4 was the Section Officer to prove the valid sanction. P.W.5 was also a mediator to the pre-trap and post-trap proceedings. P.W.7 was the Trap Laying Officer. P.W.8 was the ACB Inspector, who caused discreet enquiries at the instructions of Trap Laying Officer to ascertain the antecedents of A.O. as well as P.W.3. P.W.4 was the Section Officer to prove the valid sanction. P.W.5 was also a mediator to the pre-trap and post-trap proceedings. P.W.7 was the Trap Laying Officer. P.W.8 was the ACB Inspector, who caused discreet enquiries at the instructions of Trap Laying Officer to ascertain the antecedents of A.O. as well as P.W.3. 11) Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the appellant/State, would contend that for obvious reasons P.W.3 turned hostile to the case of the prosecution. Even P.W.1 and P.W.2 did not support the case of the prosecution. Further, the learned Special Judge found favour with the case of the prosecution insofar as pendency of the official favour of the work relating to P.W.3 before A.O. is concerned. For obvious reasons P.W.3 turned hostile to the case of the prosecution by deposing that the contents of Ex.P.3 were false. He did not speak of the demands as alleged in Ex.P.3 as well as the post-trap proceedings. P.W.3 deposed as if he repaid a sum of Rs.1,000/-due to the A.O. The learned Special Judge rightly ordered for prosecution of perjury. However, when the prosecution proved the pendency of the official favour and when the tainted amount of Rs.1,000/- was recovered from the possession of A.O., those circumstances were sufficient to establish the guilt against the A.O. The A.O. was not supposed to lend the amount to P.W.3 being a public servant. Only to facilitate the defence of A.O., P.W.3 deposed falsely. As the tainted amount was recovered from the possession of A.O., prosecution had the benefit of presumption under Section 20 of the P.C. Act, as such, the appeal is liable to be allowed. 12) Sri A. Hari Prasad Reddy, learned counsel appearing for the respondent, would contend that the A.O in his spontaneous explanation during the post-trap categorically stated that P.W.3 repaid the amount of Rs.1,000/- due to him. That defence had basis in the post-trap proceedings. There was no evidence at all to prove the so-called demands prior to the trap and during the post-trap. According to P.W.3, contents of Ex.P.3 were all false. When such was the situation mere recovery of the tainted amount from the A.O. would not prove the guilt of A.O. The A.O. had basis in the post-trap to say that P.W.3 repaid the amount to him. According to P.W.3, contents of Ex.P.3 were all false. When such was the situation mere recovery of the tainted amount from the A.O. would not prove the guilt of A.O. The A.O. had basis in the post-trap to say that P.W.3 repaid the amount to him. The learned Special Judge on thorough appreciation of the evidence on record, did not find favour with the case of the prosecution, but, however, by recording reasons ordered perjury against P.W.3. Under the circumstances, there are no merits in the appeal, as such, the appeal is liable to be dismissed. 13) As seen from the evidence of P.W.1, he supported the case of the prosecution to certain extent that on 29.01.2002, L.W.1-Rambabu came to him and asked about his EMD and that he told him the cheque is ready and A.O. already put his signature on 24.01.2002. He handed over the cheque along with 2A statement after taking acknowledgement. He deposed that he was asked by L.W.1-Rambabu in respect of the counter signature for withdrawal of cheque. Then he advised to approach A.O. and get his counter signature. Subsequently, he came to know that A.O. was trapped. Ex.P.1 is the Photostat copy of the cheque along with Form 2A. Ex.P.2 is counter foil. In view of certain answers spoken by him in cross examination on behalf of A.O. that though he informed to L.W.1-Rambabau on 25.01.2002 that the cheque is ready, but he left stating that he would come on the next day, the prosecution got declared him as hostile and during cross examination he denied the case of the prosecution. 14) Apart from this, according to the evidence of P.W.2, he came to know that A.O. was trapped by the ACB officials on 29.01.2002. The prosecution got declared him as hostile and during cross examination he denied the case of the prosecution. However, the fact remained is that Ex.P.1 was seized from the possession of P.W.3 during post-trap proceedings which reflects that it was prepared on 24.01.2002 and it was returned to P.W.3 by the A.O. after attesting the signature of P.W.3 during post-trap. Apart from this, P.W.2 made an initial indicating that he signed on 29.01.2002. All these goes to prove that A.O. did something on the date of trap so as to process the work relating to P.W.3. Apart from this, P.W.2 made an initial indicating that he signed on 29.01.2002. All these goes to prove that A.O. did something on the date of trap so as to process the work relating to P.W.3. Undoubtedly, the prosecution proved the pendency of the official favour in respect of the work of P.W.3 prior to the date of trap and as on the date of trap. 15) Now, this Court has to see whether the evidence let in by the prosecution to prove the allegations of demand is believable. It is well settled that to sustain a conviction either under Section 7 or under Section 13(1)(d) of the P.C. Act, the demand for bribe or peculiar advantage is sin qua non. It is the duty of the prosecution to prove the allegations of demand as projected in Ex.P.3 as well as narrated in the post-trap proceedings. To prove the demand the only witness was P.W.3. According to him, in December, 2001 when he approached the A.O. for release of Earnest Money Deposit, he promised to do so. He approached twice for release of EMD within a gap of one year. Ultimately it was released on 29.01.2002. Prior to that when he approached the A.O., the A.O. asked him whether he brought Rs.1,000/- due by him to A.O. towards repayment of hand loan. He deposed in chief examination that Ex.P.3 is the report given by him with false contents. Insofar as the pre-trap proceedings are concerned, he totally turned hostile to the case of the prosecution as if the contents of Ex.P.3 were not read over to him, etc. Insofar as the post-trap proceedings, his evidence is that during post-trap he proceeded to the office of A.O. and found the Superintendent who used to issue the cheque and enquired about his readiness of cheque and he told him that it is ready and it is to be counter-signed by A.O. Then he received the cheque from the Superintendent who obtained his acknowledgement. Then he approached the A.O. who is available in the room, A.O. counter-signed his cheque. Thereafter, he gave an amount of Rs.1,000/- to A.O. and came out and relayed a pre-arranged signal. Then he approached the A.O. who is available in the room, A.O. counter-signed his cheque. Thereafter, he gave an amount of Rs.1,000/- to A.O. and came out and relayed a pre-arranged signal. The evidence as above, P.W.3 did not speak of the earlier demand of Rs.5,000/- and payment of Rs.4,000/- by P.W.3 and further demand of A.O. to pay the rest of the amount and further demand of A.O. during the post-trap. Hence, P.W.3 did not speak of the demands as narrated in Ex.P.3 and further the demand as alleged in the post-trap proceedings. The prosecution got declared him as hostile and during cross examination, he denied the case of the prosecution. 16) However, there is no dispute that literally the testimony of P.W.5, the mediator to the pre-trap and post-trap and the evidence of P.W.7, the Trap Laying Officer, goes to prove that during the post-trap the tainted amount was recovered from the possession of A.O. There was no dispute from the part of A.O. that he dealt with the amount of Rs.1,000/- prior to P.W.3 relayed pre-arranged signal. Even according to the testimony of P.W.3 whatever the amount of Rs.1,000/- paid by him was towards repayment of the loan. As evident from Ex.P.19, the post-trap proceedings, when the DSP asked A.O. to narrate the events happened prior to their arrival, he put forth the version regarding completion of his task so as to return the cheque to P.W.3 and further narrated that he received a sum of Rs.1,000/- from P.W.3 which was towards repayment of hand loan obtained by him. It is not that for the first time during the course of trial the A.O. set up a repayment of hand loan theory. It had basis from Ex.P.19 for such theory. It is no doubt true that being a public servant, A.O. was not supposed to indulge in any lending amounts, but according to the defence, it was only the hand loan. Except the solitary circumstance that tainted amount was recovered from the possession of A.O., there was no other convincing evidence to prove the alleged demands prior to the date of trap and on the date of trap. The mediator-P.W.5 was not a witness to observe the events between P.W.3 and A.O. He was not instructed by the Trap Laying Officer to closely hear the conversation between A.O. and P.W.3. The mediator-P.W.5 was not a witness to observe the events between P.W.3 and A.O. He was not instructed by the Trap Laying Officer to closely hear the conversation between A.O. and P.W.3. The learned Special Judge rightly took into consideration all these aspects. 17) Another improbability in the case of the prosecution is that when the original demand was of Rs.5,000/- on 21.01.2002 and when P.W.3 allegedly paid a sum of Rs.4,000/-on 22.01.202, definitely, he would have occasion for paying the rest of Rs.1,000/- also on the same day, but the case is that for the rest of the amount of Rs.1,000/-, P.W.3 was directed to pay the amount within five or six days. The whole things that were narrated in Ex.P.3 appear to be abnormal, in my considered view. Virtually, there is no substantial evidence to prove the allegations of demand as narrated in Ex.P.3 and further demand as narrated in post-trap proceedings. It is no doubt true that Ex.P.3 and Section 164 of Cr.P.C. Statement of P.W.3 and the post-tap proceedings cannot be read in substantive evidence so as to fasten the guilty against A.O. The conduct of P.W.3 appears to be such that having set the criminal law in motion with serious allegations against a public servant, he asserted in his chief examination that contents of Ex.P.3 were of false. The learned Special Judge spelt out various reasons so as to give a finding that P.W.3 appears to have given false evidence. When the serious allegations were not spoken to by the defacto-complainant and when he destroyed the case of the prosecution, however, the suspicion is grave, but conviction cannot be sustained basing on it. The suspicion, however, grave cannot be taken as substitute for proof. The conduct of A.O. in lending some amount and getting repayment was something irregular looking into the Conduct Rules but that cannot be a ground to fasten criminal liability. 18) Turning to Section 20 of the P.C. Act, it runs as follows: 20. The suspicion, however, grave cannot be taken as substitute for proof. The conduct of A.O. in lending some amount and getting repayment was something irregular looking into the Conduct Rules but that cannot be a ground to fasten criminal liability. 18) Turning to Section 20 of the P.C. Act, it runs as follows: 20. Presumption where public servant accepts gratification other than legal remuneration.— (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 19) The Constitutional Bench of the Hon’ble Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi, (2022) SCC OnLine SC 1724 categorically held that to have the benefit of presumption under Section 20 of the P.C. Act, the duty of the prosecution is to establish the foundational facts. Here, the prosecution did not prove the foundational facts. On account of the conduct of P.W.3, he met with consequences of facing perjury. That cannot be a ground to say that A.O. committed the offence. In my considered view, the prosecution had no benefit of the presumption under Section 20 of the P.C. Act, especially, when the evidence of P.W.3 is that he repaid a sum of Rs.1,000/- to A.O. on the date of trap which was due by him. In my considered view, the learned Special Judge on thorough appreciation of the evidence on record and with reasons which are sound in nature extended an order of acquittal. By any strength of imagination, it cannot be held that the learned Special Judge made any unreasonable findings. As it is an appeal against an order of acquittal, the Appellate Court cannot interfere unless the judgment suffered with unreasonable findings. Having regard to the above, I do not find any reasons to interfere with the judgment of the learned Special Judge. 20) In the result, the Criminal Appeal is dismissed. 21) The Registry is directed to forward the record along with copy of the judgment to the trial Court, on or before 20.12.2023. A copy of the judgment be marked to the learned Court where the perjury is pending. Consequently, miscellaneous applications pending, if any, shall stand closed.