JUDGMENT : This Criminal Appeal is filed by the State, being represented by the Inspector of Police, Anti-Corruption Bureau (“A.C.B.” in short), Visakhapatnam, challenging the judgment, dated 10.03.2006 in C.C.No.19 of 2000, on the file of Special Judge for SPE & ACB Cases, Visakhapatnam (“Special Judge” for short), where under the learned Special Judge, found the Accused Officer (“A.O” for short) therein not guilty of the charges under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (“P.C. Act” for short) and acquitted him under Section 248(1) of the Code of Criminal Procedure (“Cr.P.C.” for short). 2. The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience. 3. The case of the prosecution, in brief, before the Court below, according to the charge sheet filed by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam, pertaining to Crime No.12/RC-WLR/98 of A.C.B., Visakhapatnam, is as follows : (i) Sri Vadlamani Venkata Somayajulu i.e., the A.O. worked as Senior Assistant, Office of the Mandal Revenue Officer, Chintapalli Mandal, Visakhapatnam District and he was working as such as on 23.06.1998. Thus, he is a public servant within the meaning of Section 2(c) of the Act. (ii) The complainant Sri Penti Atchiraju is working as Messenger in Union Bank of India, Chintapalli. His father Penti Nookaraju has Ac.5-00 cents of land in Antharla Village and executed a Will in his favour for Ac.1-00 cents of land from out of Ac.5-00 cents of land owned by him. In first week of June, 1998, he approached the A.O. and presented original Will, copy of Pattadar passbook of his father and an application signed by his father requesting to register it and to effect necessary entries in the revenue records about parting of Ac.1-00 cents of land to him by his father. The A.O. asked him to bring a challan of Rs.100/- by paying in the Sub-Treasury, Chintapalli. Accordingly, L.W.1 remitted the amount and handed over the challan to the A.O. The A.O. asked him to meet him later. Later, L.W.1 met A.O. twice or thrice, but the A.O. did not complete the work. (iii) On 20.06.1998 at 11-00 a.m., when the A.O. visited Union Bank of India where L.W.1 is working, he enquired about his work. Then, the A.O. told L.W.1 to come to his office. Later, L.W.1 met A.O. twice or thrice, but the A.O. did not complete the work. (iii) On 20.06.1998 at 11-00 a.m., when the A.O. visited Union Bank of India where L.W.1 is working, he enquired about his work. Then, the A.O. told L.W.1 to come to his office. L.W.1 went to M.R.O. Office and met the A.O. The A.O. demanded him to pay Rs.1,500/- towards bribe to get his work done. When L.W.1 asked the A.O. to reduce the bribe amount, the A.O. reduced it to Rs.1,000/- and instructed him to pay the same within two or three days. L.W.1 reluctantly agreed to pay the bribe. As he was unwilling to pay the bribe amount, he approached D.S.P., ACB on 21.06.1998 at 4-00 p.m., and reported the matter. D.S.P., ACB recorded the statement of L.W.1 and obtained his signature and registered it as a case in Crime No.11/RC-WLR/98 and took up investigation. The A.O. was trapped on 23.06.1998 at 11-30 a.m. in the office of M.R.O., Chintapalli, when he demanded and accepted the bribe of Rs.1,000/- for attending official favor in favour of L.W.1. The chemical test conducted to both hands of the A.O. yielded positive result. The amount was recovered from the left side shirt pocket of the A.O. The inner linings of the shirt pocket of the A.O. proved positive when they were subjected to chemical test. (iv) The Government of Andhra Pradesh, being the competent authority to remove the A.O., accorded sanction order in G.O.Ms.No.14, dated 05.01.2000 of Revenue (Services-IV) Department to prosecute the A.O. Hence, the charge sheet. 4. The learned Special Judge, took the case on file under Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act and after appearance of the A.O and after compliance of Section 207 of Cr.P.C., framed charges under Section 7 and Section 13(1)(d) r/w 13(2) of P.C. Act against the A.O and explained the same to him in Telugu, for which he pleaded not guilty and claimed to be tried. 5. During the course of trial, on behalf of the prosecution, P.W.1 to P.W.3 were examined and Ex.P.1 to Ex.P.10 were marked and M.O.1 to M.O.8 were marked. 5. During the course of trial, on behalf of the prosecution, P.W.1 to P.W.3 were examined and Ex.P.1 to Ex.P.10 were marked and M.O.1 to M.O.8 were marked. After closure of the evidence of the prosecution, the A.O 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 and did not let in any defence evidence. 6. He filed a written statement alleging that he did not commit any offence and on 23.06.1998 when he was in his office room, the deceased-defacto complainant came to him and offered some money and he rejected it and deceased-defacto complainant tried to stuff that amount into his hands and the A.O. pushed the currency notes with his both hands. But the deceased-defact -complainant stuffed that amount into the shirt pocket of the A.O. and after stuffing that amount, he hurriedly left the A.O. The A.O. picked up the currency notes, left them on the table and followed the deceased-defacto complainant. In the meanwhile, Balayya Dora (L.W.4), who was present in the room of the A.O., informed the A.O. that the deceased-defacto complainant would come back, but, A.O. followed the deceased-defacto complainant and called him and then the ACB officials stopped him. The ACB officials did not record his statement and there is no truth. 7. The learned Special Judge on hearing both sides and on considering the oral as well as documentary evidence, found the A.O not guilty of the charges framed against him and accordingly, acquitted him under Section 248(1) of Cr.P.C. Felt aggrieved of the same, the State, represented by the Inspector of Police, ACB, Visakhapatnam, filed the present Criminal Appeal, challenging the order of an acquittal through the Standing Counsel for ACB and Special Public Prosecutor. 8. Insofar as the case of the prosecution the A.O. was a public servant and there was a valid sanction to prosecute the A.O. under the provisions of P.C. Act is concerned, there is no dispute before the Court below. The A.O. gave consent to mark Ex.P.8 without examination of any witnesses and Ex.P.8 shows the application of mind by the sanctioning authority. Even the validity of Ex.P.8 is not in dispute in the present appeal by the learned counsel for the respondent. 9. The A.O. gave consent to mark Ex.P.8 without examination of any witnesses and Ex.P.8 shows the application of mind by the sanctioning authority. Even the validity of Ex.P.8 is not in dispute in the present appeal by the learned counsel for the respondent. 9. Now, the Court confined itself to the following points for determination : (1) Whether the prosecution before the trial Court proved beyond reasonable doubt about that the pendency of the official favour in respect of the work of defacto-complainant and that to do official favour, the A.O. demanded the defacto-complainant to pay bribe of Rs.1,000/- prior to the date of trap and on the date of trap and accepted the same? (2) Whether the prosecution proved the charges against the A.O. beyond reasonable doubt? (3) Whether there are any grounds to interfere with the judgment of acquittal recorded by the trial Court? POINTS 1 to 3:- 10. As evident from the evidence available on record, the prosecution could not examine the defacto-complainant as he died prior to his examination as a witness before the Court below. So, the evidence available before the Court below is that P.W.1, who was the mediator to the pre-trap and post-trap proceedings, P.W.2 to speak about the pendency of the official favour and P.W.3 the trap laying officer. 11. P.W.1 was the mediator to the pre-trap and post-trap proceedings. His evidence in substance is that on 23.06.1998 he and Sambasiva Rao-L.W.3 went to the office of D.S.P., ACB, Visakhapatnam at the directions of their Higher authorities. They were called inside at 5-00 a.m. by the D.S.P. D.S.P. introduced his staff members and L.W.1-Penta Atchiraju (died) and vice versa. At the instructions of D.S.P., they ascertained the bonafidies of the statement of Atchiraju from him. Atchiraju produced one five hundred rupee denomination currency notes and five one hundred denomination currency notes i.e, Rs.1000/-. They noted the same in the pre-trap. The D.S.P. explained to them the importance of the phenolphthalein powder in a trap case. At the instructions of D.S.P., H.C. 1364 applied phenolphthalein powder to the currency notes and kept the amount in the left side shirt pocket of L.W.1 with instructions to pay the amount to the A.O. only on further demand. Later, H.C. rinsed his both hand fingers in the sodium carbonate solution which gave positive result. To that effect, pre-trap proceedings were recorded. Later, H.C. rinsed his both hand fingers in the sodium carbonate solution which gave positive result. To that effect, pre-trap proceedings were recorded. As regards the post-trap, he deposed that on the same day at 11-00 a.m., they reached Chintapalli old bus stand and D.S.P. asked Atchiraju and S.I. to proceed towards office of the A.O. and received pre-arranged signal through S.I. at 11-30 a.m., and rushed to the office of the A.O. They found Atchiraju at the entrance gate of the A.O. Atchiraju pointed out the A.O. and the D.S.P. asked Atchiraju to wait outside and he went out. They entered into the room. They found the A.O. sat in the chair. They also found V.A.O., one Senior Assistant in the room of the A.O. The D.S.P. disclosed his identity. The A.O. started shivering and became stunned. The A.O. started rubbing his hands fingers on the table. The D.S.P. asked him not to rub his hands. Then, the chemical test was conducted to the both hands of the A.O. They yielded positive result. The D.S.P. asked the A.O. about payment of money by Atchiraju. The A.O. picked out a wad of currency notes from his left front shirt pocket and at the instructions of D.S.P., the other mediator took charge of it. The statement of the A.O. was incorporated in the post-trap proceedings. Serial numbers of the currency notes were tallied. The inner linings of the shirt pocket of the A.O. yielded positive result. The D.S.P. ascertained from L.W.1 as to what happened and his version was recorded. The D.S.P. seized a file containing seven sheets i.e., Ex.P.3, Register of registered documents i.e., Ex.P.4 and a bunch of two attendance registers from the office of the A.O. The rough sketch was prepared. Ex.P.7 is the post-trap proceedings. Copy of Ex.P.7 was furnished to the A.O. 12. P.W.2 being an M.R.O., he spoken about the procedure relating to request of L.W.1. Through him, Ex.P.3(a), Ex.P.3(b) and Ex.P.3(c) are marked. He testified that L.W.1 met him in June, 1998 and enquired him about the result of Ex.P.3(a) application. He entrusted the same to the A.O. and asked him to process. The file was in the custody of the A.O. Later he came to know about the trap. 13. Through him, Ex.P.3(a), Ex.P.3(b) and Ex.P.3(c) are marked. He testified that L.W.1 met him in June, 1998 and enquired him about the result of Ex.P.3(a) application. He entrusted the same to the A.O. and asked him to process. The file was in the custody of the A.O. Later he came to know about the trap. 13. P.W.3 is the trap laying officer and he spoken about the factum of the statement which was recorded from Atchiraju and pre-trap and post-trap proceedings. 14. Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the respondent/ State, would contend that unfortunately before the Court below the prosecution could not examine the defacto-complainant, who died prior to his examination, as such, there remained no evidence to prove the allegations of demand and acceptance of bribe by the A.O. P.W.1 was not a witness to the events. However, there was no dispute that the tainted amount was recovered from the physical possession of the A.O. The prosecution by examining P.W.2 proved that the documents regarding the official favour of L.W.1 was seized from the custody of the A.O. during post-trap. The A.O. dodged the official favour of L.W.1 for the reasons best known to him and demanded bribe and that he was caught hold of red handedly. The prosecution established that the A.O. dealt with the tainted amount. The trial Court erroneously disbelieved the case of the prosecution. The trial Court did not apply the statutory presumption under Section 20 of the P.C. Act in favour of the prosecution case. Hence, the judgment of the learned Special Judge is nothing but erroneous, as such, the criminal appeal is liable to be allowed by convicting the A.O. 15. Sri G. Vijaya Kumar, learned counsel appearing for the respondent, would contend the defence theory is that L.W.1 (deceased) stuffed the amount into left side shirt pocket of the A.O. and the trial Court believed the defence theory. There was no substantial evidence before the Court below to prove the allegations that the A.O. demanded L.W.1 (deceased) to pay bribe of Rs.1,000/-. P.W.1 was not a witness to speak about the events happened between the A.O. and L.W.1 (deceased). The true version of the A.O. was not recorded in the post-trap. There was no substantial evidence before the Court below to prove the allegations that the A.O. demanded L.W.1 (deceased) to pay bribe of Rs.1,000/-. P.W.1 was not a witness to speak about the events happened between the A.O. and L.W.1 (deceased). The true version of the A.O. was not recorded in the post-trap. So, when the prosecution failed to prove the demand of bribe and consequent acceptance of the same, the presumption under Section 20 of the Act cannot be drawn, as such, the learned Special Judge rightly disbelieved the case of the prosecution and the judgment of the learned Special Judge is liable to be confirmed by dismissing the criminal appeal. 16. In view of the above contentions advanced, firstly, I will proceed to deal with as to whether the prosecution before the Court below proved that the official favour in respect of the work of the deceased-defacto complainant by name Atchiraju was pending with the A.O. prior to the date of trap and on the date of trap. There is no dispute about the presentation of Ex.P.3(a) application, Ex.P.3(b) will and Ex.P.3(c) challan by the defacto-complainant (deceased) with the A.O. seeking to make necessary entries in the revenue records. This fact is not in dispute. P.W.1, the mediator with regard to the events that were happened during the post-trap proceedings, testified that the statement of V.A.O. and Senior Assistant were incorporated by him in the post-trap proceedings. M.R.O. also gave a statement. They seized Ex.P.3, a file containing seven sheets, Ex.P.4, register of registered documents and a bunch of two attendance registers. Apart from this, there is evidence of P.W.2, the concerned M.R.O. to prove that P. Acthiraju-L.W.1 (deceased) approached him in June, 1998 and enquired him about the result of Ex.P.3, application and then he instructed the A.O. immediately to process Ex.P.3 and by then Ex.P.3 file was in the custody of the A.O. It is through him Ex.P.3(a), Ex.P.3(b) and Ex.P.3(c) were marked. During the cross examination, the A.O. did not dispute the custody of these documents with him. Though the A.O. challenged the evidence of P.W.2 in this regard, but, the suggestions put forth to P.W.2 are not at all tenable. Apart from this, there is evidence of P.W.3 speaking about the seizure of these documents from the custody of the A.O. The seizure of these documents could be found in the post-trap proceedings. Though the A.O. challenged the evidence of P.W.2 in this regard, but, the suggestions put forth to P.W.2 are not at all tenable. Apart from this, there is evidence of P.W.3 speaking about the seizure of these documents from the custody of the A.O. The seizure of these documents could be found in the post-trap proceedings. So, when the prosecution was able to prove that these documents were seized from the custody of the A.O. during the post-trap, it can safely be concluded that the official favour in respect of the work of the deceased-defacto complainant was pending with the A.O. prior to the date of trap and on the date of trap. 17. Now, another crucial aspect that has to be seen here is as to whether the prosecution before the Court below proved that the A.O. demanded the deceased-defacto complainant to pay bribe of Rs.1,500/- and later reduced it to Rs.1,000/- prior to the date of trap and further demanded him during the post-trap and accepted the same. Admittedly, defacto complainant was not examined before the Court below as he died prior to his examination. Hence, to prove the so-called allegations of demand prior to the date of trap and during post-trap, there remained nothing. However, the prosecution sought to prove the guilt of the A.O. basing on the evidence of P.W.1, the mediator and P.W.3, the trap laying officer. According to P.W.1 and P.W.3, during posts-trap after receiving pre-arranged signal, they rushed to the office of the A.O. and P.W.3 got prepared two glasses of sodium carbonate solutions and asked the A.O. to rinse his both hand fingers and on doing so both hand fingers yielded positive result i.e., pink colour. After that, P.W.3 questioned him as to what happened and his version was mentioned in the post-trap proceedings. The A.O. produced wad of currency notes from his left side front shirt pocket and at the instructions of P.W.3, the other mediator Sambasiva Rao took charge of those currency notes which are five hundred rupee denomination and hundred rupee denomination. Their particulars in Ex.P.3 were tallied with the amount. The inner linings of the left side shirt pocket of the A.O. also yielded positive result. Their particulars in Ex.P.3 were tallied with the amount. The inner linings of the left side shirt pocket of the A.O. also yielded positive result. Therefore, the prosecution before the Court below established that the tainted amount was recovered from the A.O. During the cross examination of P.W.1, the A.O. got suggested that during post-trap that L.W.1-P. Atchiraju offered money and he pushed with his both hands and Atchiraju proceeded to leave the room of the A.O. Though the A.O. was calling him and in the meantime, Balayya Dora-L.W.4 told to the A.O. that Atchiraju would come back, in spite of it, the A.O. followed him and in the meantime, raid party entered into the office. It is the contention of the A.O. that the true version of the A.O. was suppressed and it was not recorded. During the cross examination of P.W.3 also the A.O. agitated that he did not pick out M.O.5 from his shirt pocket and he did not handover it to one of the mediators and that they found M.O.5 on the table of the A.O. and that the version of the A.O. was not recorded properly. He denied that after the statement of Atchiraju-L.W.1 was recorded under Section 164 of Cr.P.C., he called him and questioned him about the version of the A.O. that amount was given to him forcibly. He denied that the A.O. stated before him during post-trap that M.R.O. delayed registration and L.W.1-deceased might have got angry and presumed that work was held up for money as the A.O. was the concerned clerk. Therefore, in substance the defence of the A.O. is that the deceased-defacto complainant thrust the money. 18. Admittedly, in Ex.P.7, post-trap proceedings, there was a different version as if the deceased-defacto complainant without being asked by the A.O. voluntarily gave the amount to him. Hence, when Ex.P.7 depicts the version of the A.O., as if without any demand, the deceased-defacto complainant gave some amount to him, but the contention of the A.O. is that the true version of him relating to thrust theory was not recorded by the mediator and the investigating officer. Needless to point out here the solitary circumstances on which the prosecution proposed to prove the guilt against the A.O. without proving anything about the demand and acceptance of bribe is the recovery of the tainted amount from the possession of the A.O. 19. Needless to point out here the solitary circumstances on which the prosecution proposed to prove the guilt against the A.O. without proving anything about the demand and acceptance of bribe is the recovery of the tainted amount from the possession of the A.O. 19. Now, it is a matter of appreciation as to whether the contention of the A.O. that the ACB officials did not incorporate the true version of the A.O. is tenable. There is no dispute about the factum of recording of the statement of L.W.1-Atchiraju by Judicial First Class Magistrate under Section 164 of Cr.P.C. The deceased-Atchiraju stated before the learned Magistrate under Section 164 of Cr.P.C. which was referred by the learned Special Judge in the judgment to the effect that when the D.S.P. questioned the A.O. as to whether he gave amount to the A.O. forcibly, he told to him that he did not give the amount with force and he handed over the amount only on his demand and then he (defacto-complainant) questioned the A.O. and the A.O. did not reply. So, it is the purported version of L.W.1 (defacto-complainant) before the learned Magistrate. But, when it comes to Ex.P.7 that version is not there. So, it is clear that before the learned Magistrate, the defacto-complainant put forth a version that the D.S.P. questioned him as to whether he gave the amount with force for which he denied. Hence, L.W.1 (deceased) would not have revealed the same before the jurisdictional Magistrate, if those things were not happened during the post-trap. But, curiously those things are missing from Ex.P.7, post-trap proceedings. Hence, the contention of the A.O. that his true version was not recorded in the post-trap has support from the contents of Section 164 of Cr.P.C. of defacto-complainant. Hence, the A.O. was able to probabalise a theory that his true version was not found place in Ex.P.7, post-trap proceedings. Considering the same, the learned Special Judge disbelieved the case of the prosecution. It is the contention of the appellant that the presumption under Section 20 of the P.C. Act has to be drawn. 20. Section 20 of the Prevention of Corruption Act, 1988 runs as follows : 20. Considering the same, the learned Special Judge disbelieved the case of the prosecution. It is the contention of the appellant that the presumption under Section 20 of the P.C. Act has to be drawn. 20. Section 20 of the Prevention of Corruption Act, 1988 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. 21. The Hon’ble Supreme Court in the case of Neeraj Dutta v. State (Government of NCT of Delhi), (2022) SCC OnLine SC 1724, categorically held that to draw the presumption under Section 20 of the P.C. Act foundational facts have to be proved by the prosecution. 21. The Hon’ble Supreme Court in the case of Neeraj Dutta v. State (Government of NCT of Delhi), (2022) SCC OnLine SC 1724, categorically held that to draw the presumption under Section 20 of the P.C. Act foundational facts have to be proved by the prosecution. Here, absolutely, the prosecution failed to prove the foundational facts. In the above said decision, the Hon’ble Supreme Court also dealt with a situation as to how the evidence is to be appreciated when the defacto-complainant turned hostile or died, etc. Here, the defacto-complainant was expired without giving any evidence. According to the judgment of the Hon’ble Supreme Court as above, the Court can also rely upon other circumstances to prove the guilt against the A.O. Here, there is no direct evidence to prove the allegations of demand prior to the date of trap and on the date of trap. The solitary circumstances on which the prosecution sought to prove the guilt is the recovery of the amount from the A.O. The recovery of amount from the A.O. suffered with any amount of doubtful circumstances as above. Hence, the benefit of presumption under Section 20 of the Act is not available in the absence of proving the foundational facts. The learned Special Judge rightly appreciated the evidence on record and with cogent reasons acquitted the A.O. 22. Under the circumstances, I see no reason to interfere with the well reasoned judgment of the learned Special Judge for SPE and ACB Cases, Visakhapatnam. 23. In the result, the Criminal Appeal is dismissed. Consequently, miscellaneous applications pending, if any, shall stand closed.