1. As these appeals are arising out of the common judgment in C.C. No. 3 of 2009 dated 20.08.2013 convicting both accused Nos. 1 and 2 for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (for short, 'P.C. Act'), they are disposed together by this common judgment.
2. Criminal Appeal No. 750 of 2013 is filed by the appellant/accused No. 1 aggrieved by the conviction and sentence recorded by the III Additional Special Judge for CBI Cases, Hyderabad in C.C. No. 3 of 2009 dated 20.08.2013 in convicting and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-in default to suffer simple imprisonment for three months for the charge under Section 7 of P.C. Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-in default to suffer simple imprisonment for three months for the charge under Section 13(2) read with 13(1)(d) of P.C. Act and wherein both the sentences are directed to run concurrently.
3. Criminal Appeal No. 702 of 2013 is filed by the accused No. 2 aggrieved by the conviction and sentence recorded by the III Additional Special Judge for CBI Cases, Hyderabad in C.C. No. 3 of 2009 dated 20.08.2013 in convicting and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-in default to suffer simple imprisonment for three months for the charge under Section 7 of P.C. Act and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-in default to suffer simple imprisonment for three months for the charge under Section 13(2) read with 13(1)(d) of P.C. Act wherein also both the sentences are directed to run concurrently.
4. The case of the prosecution in brief was that accused No. 1 was working as a Branch Manager in Andhra Bank, Lakshmapur Branch, Yellareddy Mandal, Nizamabad District and accused No. 2 was working as Cashier cum Clerk in the same branch. The father of the complainant was having an account in Andhra Bank, Lakshmapur Branch and he had taken a crop loan of Rs. 6,000/-on 22.06.2005. He died accidently on 16.10.2007 by falling in a stream when he went to do labour work. There was a tie up between Andhra Bank and the United India Insurance Company under Abhaya Jeevan Scheme where if a customer of the bank would die accidentally, the insurance company would provide accident benefits and insurance to the customers. Accordingly, the complainant and his brother applied for the insurance claim and compensation and they received Rs. 2,00,000/- as compensation on 17.01.2008 which was deposited in the joint account of the complainant and his younger brother. They still had to receive an amount of Rs. 1,00,000/-towards crop claim insurance. The complainant visited the bank and met accused No. 1 on 10.07.2008. Accused No. 1 demanded a bribe of Rs. 10,000/-for processing the claim and asked him to pay the first installment of Rs. 5,000/-on 22.07.2008 to accused No. 2 and to pay the balance amount of Rs. 5,000/- after receipt of the insurance amount.
5. Aggrieved by such demand, the complainant lodged a complaint before CBI officials. The same was registered as R.C. No. 20(A)/2008-CBI/ACB/Hyderabad on 22.07.2008. The CBI officials proceeded to lay a trap. Sri K. Nagender Rao, Inspector of Police acted as Trap Laying Officer. Sri S. Balraj and Sri S. Perumal, officials from United India Insurance Co. Ltd., and Food Corporation of India respectively acted as independent witnesses during the trap proceedings. The complainant arranged currency notes of Rs. 5,000/-in Rs. 500/-denomination, 10 in number to be paid as bribe. The CBI officials applied Phenolphthalein powder to the said currency notes and kept them in the left side shirt pocket of the complainant and instructed him not to touch the tainted currency notes until and unless demanded by accused and to give a signal to the trap team by wiping his face with the handkerchief as soon as the accused demanded and accepted the bribe amount and asked Sri S. Balraj to accompany the complainant. Accordingly, the complainant along with the witnesses and CBI officials proceeded to the bank on 22.07.2008 at about 3:30 P.M. He asked Sri S. Balraj to wait outside the bank and alone went inside the bank. He met the Branch Manager (accused No. 1). The latter asked him to wait for some time till the other customers left the bank and after sometime called the cashier (accused No. 2) and gave some signal. On that, the entrance doors were closed and the cashier called the complainant nearer to him and demanded the bribe amount of Rs. 5,000/-. The complainant handed over the bribe amount to Sri G. Ramulu (accused No. 2), who took the amount and kept them in his left side pant pocket after counting the same. Accused No. 2 offered the complainant a cup of tea. The complainant on the pretext of calling the tea boy, opened the entrance door. came out and gave the pre-arranged signal. On his signal, the trap team came into the bank and on pointing out by the complainant that he handed over the tainted currency to accused No. 2, tested both the hands of accused No. 2, which yielded positive result. When questioned, accused No. 2 stated that the amount received from the complainant was in his left side pant pocket, as such, the trap team recovered the amount from the left side pant pocket of accused No. 2 and subjected the left side pant pocket also to test. The said test also yielded positive result. They checked the currency note numbers with those recorded in the First Mediator's Report and found them tallied. They collected the file pertaining to the death claim of the father of the complainant and seized it from the custody of accused No. 1 and recorded the Second Mediator's Report. Accused No. 2 in the Second Mediator's Report stated that he accepted cash from the complainant to credit it into his account. The Trap Laying Officer on verifying that there was no voucher/counter foil filled up by the complainant and there was no entry made in the Rough Chitta Register with regard to the amount of Rs. 5,000/-either in the cash balance book or in the Rough Chitta Register and as there was no necessity for accused No. 2 to receive the said money and even if the amount was received as late cash, it had to be properly filled in voucher/challan notifying the denominations of notes and the same was not available, arrested accused No. 2 on the same day and produced him before the Court. Subsequently, Sri B. Ram Das Inspector of Police took up investigation of the case. He forwarded the material objects to Central Forensic Science Laboratory, Hyderabad, recorded the statements of witnesses, collected the documents from the Andhra Bank, Lakshmapur Branch and also from the Regional Office, Andhra Bank, Karimnagar, obtained sanction proceedings against accused Nos. 1 and 2 and filed charge sheet against them for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of P.C. Act.
6. The case was taken cognizance by the III Additional Special Judge for CBI Cases, Hyderabad and charges were framed against accused Nos. 1 and 2 for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of P.C. Act.
7. During the course of trial, the prosecution got examined PWs. 1 to 16 and got marked Exs.P1 to P22 and M.O.s 1 to 5 on its behalf. The accused No. 2 was examined as DW1 and Exs.D1 and D2 were marked on behalf of the accused.
8. On considering the oral and documentary evidence on record and the material objects marked, the trial court found accused Nos. 1 and 2 guilty for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of P.C. Act and convicted and sentenced them accordingly, as stated above.
9. Aggrieved by the said conviction and sentence recorded against them, accused No. 1 preferred Criminal Appeal No. 750 of 2013 contending that the trial court failed to appreciate that PW1 admitted in his cross-examination that he was not a nominee of his father for the benefits under crop loan insurance policy and also admitted in Ex.P1 that his brother Mr. Sangameshwar went to Andhra Bank on 10.07.2008, hence, the question of demanding the amount of Rs. 10,000/-by accused No. 1 to PW1 would not arise. The trial court failed to appreciate that the said Sangameshwar was neither cited in the list of witnesses nor was he examined to prove the case of the prosecution, which would clearly show that the entire story of the prosecution was false and baseless. The trial court failed to appreciate the evidence of PW.16, who admitted that prior to the registration of the case, there was no official favour pending at Lakshmapur Branch of Andhra Bank. There were no allegations against the accused No. 1, as such, the Investigating Officer ought not to have served Ex.P3 i.e., second mediator's report on Accused No. 1, the same would show the mind of the investigating officer to implicate the appellant at a later stage by suppressing the real facts of the case. The trial court failed to observe that there was no direct evidence to show that the accused No. 1 was responsible for the offence, inspite of that accused No. 1 was convicted only on assumptions and presumptions. The trial court failed to appreciate that the prosecution failed to prove the charges for the offences against accused No. 1 and prayed to set aside the conviction and sentence recorded against accused No. 1.
10. Accused No. 2 also preferred appeal vide Criminal Appeal No. 702 of 2013 contending that the trial court erred in not considering the version of accused No. 2 as to how the tainted amount came into his possession and failed to see that the accused had no authority to do any official favour to PW1. The trial court failed to consider the fact that PW.1 approached accused No. 2 and requested him to receive the cash after banking hours and accused No. 2 received the same as "Late Cash". The trial court also erred in not considering the evidence of prosecution witnesses which would clearly show that there was ample possibility of receiving the amount as "Late Cash" due to the practice in banking services and erred in coming to a conclusion about the guilt of the accused and prayed to set aside the conviction and sentence recorded against accused No. 2.
11. Heard learned counsel Sri T.M.K. Chaithanya for accused No. 1/appellant in Criminal Appeal No. 750 of 2013, learned senior counsel, Sri O. Kailashnath Reddy for accused No. 2, appellant in Criminal Appeal No. 702 of 2013 and Sri N. Nagendran, learned Special Public Prosecutor for CBI Cases representing the respondents in both these appeals.
12. As seen from the record, both accused Nos. 1 and 2 are charged independently for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of P.C. Act. There is no charge like Criminal Conspiracy to bind them together, as accused No. 2 was alleged to have taken the bribe on behalf of the accused No. 1. It appears to be a major lacuna in the charges framed against accused Nos. 1 and 2.
13. The record would disclose that no preliminary enquiry was conducted by the CBI before registering the case. This Court in Crl.A. No. 900 of 2014 dated 18.04.2019 held that:
"13. In this regard before proceeding further, it is necessary to keep in mind the precautions to be taken from the guidelines to be followed in case of a public servant before registration of crime as per the expressions of the Apex Court. In P. Sirajuddin Etc. Vs. State of Madras [ AIR 1971 SC 520 [LQ/SC/1970/112] ] the Apex Court held that before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanor or misconduct of the type alleged in the case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any pre-conceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. The Constitution Bench of the Apex Court in Lalitha Kumari v. Govt. of U.P. [ (2014) 2 SCC 1] [LQ/SC/2013/1244] , also issued directions in this regard referring to the guidelines of CVC and the guidelines in CBI Manual.
14. There is nothing to show any such enquiry conducted on the credibility of the information in the report before its registration as Ex.P1 of PW.1 and antecedents of the officers including the accused in relation to the allegations in the report and what the previous facts that made PW.1 to report. Had it been properly done particularly fairly and impartially it could have been thrown light of the complainant got extraneous reasons in reporting against the officials."
14. The Constitutional Bench of the Hon'ble Apex Court in Lalitha Kumari vs. Govt. of U.P. (2014) 2 SCC 1 [LQ/SC/2013/1244] held that:
"108) In the context of offences relating to corruption, this Court in P. Sirajuddin Etc. v. State of Madras [ AIR 1971 SC 520 [LQ/SC/1970/112] ] expressed the need for a preliminary inquiry before proceeding against public servants.
109) Similarly, in Tapan Kumar Singh [ (2003) 6 SCC 175] [LQ/SC/2003/487] , this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence."
The Hon'ble Apex Court had illustrated the types of cases in which the preliminary enquiry would need to be conducted as under:-
a. Matrimonial disputes/ family disputes
b. Commercial offences
c. Medical negligence cases
d. Corruption cases.
Thus, the Hon'ble Apex Court held that preliminary enquiry should be conducted in corruption cases prior to registering the FIR.
15. Admittedly, no preliminary enquiry was conducted in this case prior to registering the FIR. Immediately on registering the FIR at 2:30 PM on 22.07.2008, the Inspector CBI proceeded to the scene and conducted raid at 3:30 PM. The first mediator's report was recorded even prior to registering the FIR on 22.07.2008 from 1:15 PM to 2:00 PM. Thus the investigation commenced prior to registering the FIR itself which is illegal. In Samaj Parivartana Samudaya Vs. State Of Karnataka (2012) 7 SCC 407, [LQ/SC/2012/478] the Hon'ble Apex Court held that registration of the case upon information received is mandatory before proceeding to take up the investigation. FIR sets the criminal law in motion. Investigation without FIR strikes at the root of criminal proceeding. Investigation without registration of FIR violates the fundamental right of accused. Fair and impartial investigation is a fundamental right of the accused as per the judgments of the Hon'ble Apex Court in Nirmal Singh Vs. the State of Punjab(2009) 1 SCC 441 [LQ/SC/2008/2163] and Babubhai Vs. State of Gujarat (2010) 12 SCC 241. Investigation is the stage followed post the registration of FIR.
16. To prove the offence under Section 7 of the P.C. Act, the prosecution shall establish that the accused officers being public servants had accepted or obtained or agreed to accept or agreed to obtain illegal gratification other than legal remuneration as a motive or reward for doing an official favour. To prove the charge under Section 13(1)(d) read with Section 13(2) of the Act, the prosecution shall prove beyond reasonable doubt that a public servant by a corrupt or illegal means or by abusing his position obtained for himself or for any other person any valuable thing or taken advantage of his position.
17. Demand and acceptance of bribe to do an official favour is a sine qua non to establish the above offences. In P. Satyanarayan Murthy Vs. The District Inspector of Police and Anr. 2015 (10) SCC 152, [LQ/SC/2015/1207] a three-judge Bench of the Hon'ble Apex Court held that:
"21. 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, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. 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."
18. In Sk. Hussain Vs. State of Andhra Pradesh 2020 (1) ALD (Crl.) 917 (TS), this Court referring to various judgments in B. Jayaraj Vs. State of Andhra Pradesh2014 (2) ALD (Crl.) 73 (SC) [LQ/SC/2014/339] , P. Satyanarayan Murty Vs. State of Andhra Pradesh (2015) 10 SCC 152, [LQ/SC/2015/1207] A. Subair Vs. State of Kerala 2010 (1) ALD (Crl.) 497 (SC), State of Kerala Vs. C.P.Rao (2011) 6 SCC 450, [LQ/SC/2011/743] Sujit Biswas Vs. State of Assam 2013 (2) ALD (Crl.) 618 (SC) , M.R. Purushotham Vs. State of Karnataka (2015) 3 SCC 247, [LQ/SC/2014/1044] Dashrath Singh Chouhan Vs. Central Bureau of Investigation 2018 (2) ALD (Crl.) 952 (SC) [LQ/SC/2018/1307] , M. Narsinga Rao Vs. State of Andhra Pradesh 2001 (1) ALD (Crl.) 407 (SC) held that:
".... demand and acceptance of gratification to do an official favour to a person are sine qua non to prove the offences under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988". It is also settled principle that establishing both the said twin requirements beyond reasonable doubt by the prosecution is also essential to record the conviction. "
19. In the background of this established principles of law, the evidence of witnesses need to be looked into. PW1 stated in his evidence that as his father died, they were entitled for crop loan insurance amount of Rs. 1,00,000/-and compensation amount of Rs. 2,00,000/-for the death of their father, they were paid compensation amount of Rs. 2,00,000/-, but they had to receive crop loan insurance amount of Rs. 1,00,000/-from Andhra Bank, Lakshmapur Branch, Yellareddy Mandal of Nizamabad District; he approached accused No. 1, ten days prior to 22.07.2008. Accused No. 1 demanded bribe of Rs. 10,000/-for release of crop loan insurance amount of Rs. 1,00,000/-to them and asked him to give Rs. 5,000/-to accused No. 2 on 22.07.2008 and that he could pay the remaining balance of Rs. 5,000/-after getting the insurance amount. In his cross examination, he admitted that his brother P. Sangameshwar was the nominee of his father for the benefits under crop loan insurance policy and that he stated in Ex.P1 that his brother Sangameshwar went to Andhra Bank on 10.07.2008 and on such visit, he was informed that for recommendation of crop loan claim, accused No. 1 demanded Rs. 10,000/-for smooth processing. He also admitted that he did not mention in Ex.P1 that he had visited Andhra Bank at Lakshmapur branch at any time. Thus, as per the evidence of PW.1, it was not he, who approached accused No. 1 on 10.07.2008, but his brother Sangameshwar, who approached accused No. 1 on the said date as per his complaint marked under Ex.P1.
20. Admittedly, P. Sangameshwar was not cited as a witness in the list of witnesses appended to the charge sheet nor was he examined before the court to prove the demand made by accused No. 1 for Rs. 10,000/-, for release of crop loan insurance amount of Rs. 1,00,000/-. Except the evidence of PW1, there is no other evidence on record to prove the demand made by accused No. 1. As per the charge sheet, accused No. 2 had not demanded any amount, but received the tainted amount of Rs. 5,000/-on behalf of the accused No. 1 from PW.1.
21. PW.1 further stated that on 22.07.2008, as per the instructions of CBI Inspector Nagender, Balaraj mediator accompanied him, but he kept Balaraj mediator at some distance at the bank and he entered into the room of accused No. 1. After the customers disbursed, accused No. 1 called accused No. 2 into his room and asked him to pay the amount of Rs. 5,000/-to accused No. 2. Then he gave an amount of Rs. 5,000/-from his pocket with his right hand and accused No. 2 took the said amount, counted with both hands and kept in his left side pant pocket. He came out of the bank and gave pre-arranged signal by wiping his face with a kerchief. Then CBI team, Perumal and Balaraj rushed into the bank.
Thus, though the CBI official instructed Balaraj mediator to accompany PW1, PW1 had not taken Balaraj along with him and asked him to wait outside the bank.
22. PW.2 also stated in his chief examination that PW.1 asked him to wait outside the bank and PW.1 alone went inside the bank. After half an hour, PW1 came outside the bank and wiped his face with hand kerchief as per the pre-arranged signal and he also signaled the CBI officials, then all of them went inside the bank. Thus, PW2 had not accompanied PW.1 to the bank to know whether accused No. 1 demanded PW.1 to pay the amount of Rs. 5,000/-to accused No. 2 even on the said date and time.
23. The Hon'ble Apex Court in Ram Prakash Arora Vs. State of Punjab (1972) 3 SCC 652 [LQ/SC/1972/195] held that the complainant was an interested and partisan witness concerned in the success of the trap and his evidence must be tested in the same way as that of any other interested witness and the court might look for independent corroboration before convicting the accused person.
24. In Darshan Lal Vs. The Delhi Administration (1974) 3 SCC 595, [LQ/SC/1973/352] the Hon'ble Apex Court by relying upon the above judgment in Ram Prakash Arora gave the appellant the benefit of doubt, as there was no corroboration to the evidence of the complainant.
25. In Panalal Damodar Rathi Vs. State of Maharashtra (1979) 4 SCC 526, [LQ/SC/1979/61] the Hon'ble Apex Court held that:
"There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon..
...there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on..
...there is grave suspicion the guilt of the accused has not been established beyond reasonable doubt...
... We are conscious of the fact that both the trial court as well as the appellant court accepted the evidence of the complainant and P.W. 3 and found the appellant guilty. Though this Court normally will not interfere with the concurrent findings of the Courts below, we feel that on the material placed before us it will be hazardous to base a conviction. The marked notes were not recovered from the appellant. The prosecution case is that the money was paid to the second accused to be handed over to the appellant The complicity of the appellant is sought to be established by the conversation that took place between the complainant and the appellant in the presence of P W.
3 The version regarding the conversation as given by complainant and P.W. 3 is not consistent. In the circumstances, we are constrained to give the benefit of doubt..."
26. Thus, the Hon'ble Apex Court in all the above cases held that there need to be corroboration to the testimony of the complainant regarding the demand for money by the appellant. In the present case also, there is no corroboration to the evidence of the complainant with regard to the demand for money by accused No. 1. With regard to the demand on 10.07.2008, the prosecution failed to examine the brother of PW.1 by name Pitla Sangameshwar. With regard to the demand on 22.07.2008, though the Trap Laying Officer asked PW.2 to accompany the complainant PW.1, PW.1 asked him to wait outside the bank only and not taken him inside and there was no corroboration to his evidence of demand on the said date.
27. With regard to non-examining Sri P. Sangameshwar, the learned counsel for the appellant-accused No. 1 relied upon the judgment of the Hon'ble Apex Court in Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others (2001) 6 SCC 145 [LQ/SC/2001/1190] wherein it was held that:
"...It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses..."
28. In the present case also, the brother of PW.1, P. Sangameshwar was a material witness to prove the demand made by PW1 on 10.07.2008. He was the sole beneficiary to the crop loan insurance taken by his deceased father. As such, the CBI ought to have examined him as a witness in this case. Non-examination of Sri P. Sangameshwar as a witness to the prosecution case is fatal.
29. The procedure with regard to processing the insurance claim was stated by PW.3, the Assistant Manager (Marketing) of Andhra Bank, Head Office, Saifabad, Hyderabad at the relevant period. She stated that she used to co-ordinate between branches and insurance companies regarding claim settlements. They used to have Abhaya Jeevan Scheme with LIC of India at that time and ICD/Pattabhi Agri Card with United India Insurance Company. The Branch Manager of Andhra Bank where the customer death occurred should give intimation notice to United India Insurance Company within 90 days from the date of death. Subsequently, all the relevant papers like claim application, FIR and police final report in case of drowning, inquest report, etc had to be given to the Manager. The Manager had to send premium deduction certificate, accounts statement of the customer, non-operative account statement of insurance company to the United India Insurance Company within 6 months. After investigation, United India Insurance Company will settle the claim as per the case and it would send the claim amount of Rs. 1,00,000/-directly to the branch and a copy of the claim settlement paper would be given to their Marketing Department. She also stated that in the present case, they received letter informing settlement of claim from United India Insurance Company in September, 2008.
30. As per PW4, Assistant Administrative Officer of United India Insurance Company, Ramkote, Hyderabad at the relevant period, their office received intimation on 02.01.2008 from Andhra Bank, Lakshmapur Branch regarding death of P. Pochaiah. They registered the claim and sent the proceed papers to the bank for submission of reports such as FIR, PMR, Police Panchanama, etc.. Later on they received the papers from the said branch on 14.02.2008. Seeing the Doctor's report, as the deceased died due to drowning in rivulet, they had given the papers for investigation to Mr. M. Manoharam who investigated and submitted report on 28.07.2008. Later on the claim was processed and approved by the Divisional Manager and subsequently, cheque for Rs. 1,00,000/-vide cheque No. 202600, dated 02.09.2008 was prepared and sent to Andhra Bank, Lakshmapur Branch by registered post.
31. Thus, no official favour was pending with Andhra Bank, Lakshmapur Branch at the relevant period. They had sent the death intimation of P. Pochaiah on 02.01.2008 and all the relevant papers by 14.02.2008 itself. By the alleged date of demand on 10.07.2008, no official favour was pending with the said branch of Andhra Bank.
32. The witness by name Manoharam who conducted investigation in the case was examined as PW.7. His evidence would disclose that he worked as Investigator in United India Insurance Company and he investigated into the death of P. Pochaiah to find out whether it was natural or accidental and submitted his report that the death of the deceased P.Pochaiah was accidental. The statements collected by him dated 08.07.2008 and 24.07.2008 were marked as Ex.P11. Thus, the matter was under the process of investigation by the insurance company at the relevant dates on 10.07.2008 and 22.07.2008 and no official favour was pending with either accused No. 1 or accused No. 2.
33. Learned counsel for the appellant-accused No. 1 relied upon the judgment of this Court in Sk. Hussain Vs. State of Andhra Pradesh (5 supra) wherein as per the facts of the case,
"accused officer demanded and accepted Rs. 1,400/-towards bribe from PW1/defacto complainant to hand over cheques towards loan sanctioned by Bank on his application-for getting loan from Bank, a cooperative Bank, loanee has to obtain membership by paying membership fee and share capital-Consistent stand of accused officer that he received said amount from PW1 towards part payment of share capital and membership fee-By date of trap, loan of PW1, was already sanctioned, cheques by receiving membership and share capital amount from PW1-Therefore virtually, there was no effective official favour that was pending with accused officer-further, there is categorical admission by PW2, mediator that accused officer received amount from PW1 in his presence and did not enquire his identity with PW1 that itself would establish that amount received by accused officer, that too in his office, is not bribe and moreover defacto complainant himself turned hostile and during cross-examination, nothing useful to prove guilt of accused officer elicited from him by prosecution-concluded, therefore, that prosecution failed to establish guilt of accused officer beyond reasonable doubt and accused officer entitled for acquittal"
34. In the present case, there is no official favour pending with both the accused officers. As seen from the evidence of PW4, the amount would be directly remitted into the account of the nominee after processing the claim. A reminder letter was also sent by accused No. 1 on 16.07.2008 as per the charge sheet. PW.16, the investigating officer also admitted that no official favour was pending at the level of Lakshmapur Branch, as the claim was already forwarded and a reminder letter was also sent.
35. With regard to acceptance of the bribe amount, admittedly, accused No. 1 had not accepted the bribe and it was accused No. 2 who was alleged to have received the tainted amount from PW.1. The test results proved positive against accused No. 2, but accused No. 2 gave an explanation immediately in the second mediator's report that he accepted the cash from the complainant to credit it into the latter's account. Accused No. 2 examined himself as DW.1. He stated in his evidence that on 22.07.2008, after closing cash counter at about 4:35 P.M. while he was in the cabin, PW.1 came and requested to receive cash of Rs. 5,000/-to be credited into his account, for which the accused No. 2 told him that day's business hours were closed and he could not receive the cash, then PW.1 requested to receive cash that day itself and credit the same into his account on the next day. Accordingly, he received the cash and counted the same with the help of counting machine and while he was examining the genuineness of such currency notes, PW.1 rushed out of the bank. He asked the complainant raising voice for giving pay-in-slip. But, the latter hurriedly left. He came out of the cash cabin holding the currency notes in his hand and sat by the side of his counter checking the Rough Chitta. In the meanwhile, CBI people rushed towards him along with PW.1 and caught hold of his wrists, by that time the currency notes were still in his hands. CBI Inspector asked another person to take the said cash from his hands and to keep it in his left side pant pocket and he did so. Afterwards a kerchief was tied to his eyes and his hands were subjected to phenolphthalein test. He was relieved of his pant by providing a lungi. In his cross-examination he stated that the business hours of the cash counter would be closed by 4:30 P.M.
36. The prosecution also examined a Senior Branch Manager of Andhra Bank as PW.9. PW.9 stated that as per their guidelines, there were no clear instructions to receive late cash, but in practice to facilitate the customers, their bank people would receive late cash receipts along with voucher to be produced. But the voucher should be prepared by the customer along with cash denomination. It should be counted by the cashier and he had to issue the counter foil, to the customer. While putting the cash in safe custody, the cash should be counted by a Joint Custodian Officer. He further stated that the business hours of Lakshmapur Branch, Andhra Bank are from 10:00 A.M. to 2:00 P.M. from Monday to Friday and 10:00 A.M. to 12:00 noon on Saturdays and the working hours of said branch are 10:00 A.M. to 5:00 P.M. from Monday to Friday and 10:00 A.M. to 2:00 P.M. on Saturdays. The bank timings of Lakshmapur branch, Andhra Bank were marked as Ex.P15 and a copy of manual of instructions was marked as Ex.P16. In his cross-examination, he admitted that as per Ex.P16, the payments to be made by the bank to the customers alone were prohibited and it did not prohibit the cash receipts. He further stated that he worked mostly in rural branches during his service.
Thus, this witness stated that in rural branches there was a practice to receive late cash receipts to facilitate the customers. The burden laid upon the accused to prove their defence is by way of preponderance of probability but not beyond reasonable doubt.
37. The Trap Laying Officer was examined as PW.15. He admitted in his cross-examination by the learned counsel for accused No. 2 that as per Ex.P1 given by PW.1, accused No. 2 did not make any demand for bribe. He also admitted that during Ex.P3 proceedings, i.e., the second mediator's report, the accused No. 2 explained to him that he never demanded bribe from PW.1 and that he accepted cash from PW.1 to credit it into his account. PW.15 also admitted that PW.1 was having SB account (Abhaya Jeevan) in the said branch by the date of trap.
38. PW.16 Investigating Officer also stated that his investigation would reveal that accused No. 2 had no role in recommendation of sanction of Rs. 1,00,000/-loan to PW.1.
39. Learned counsel for accused No. 2 relied upon the judgment of the Hon'ble Apex Court in Banarsi Dass Vs. State of Haryana (2010) 4 SCC 450 [LQ/SC/2010/355] on the aspect that:
"It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard. So far as it satisfies the essentials of a complete chain duly supported by appropriate evidence..."
40. He also relied upon a three-judge Bench judgment of the Hon'ble Apex Court in B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55 [LQ/SC/2014/339] wherein it was held that:
"...Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as 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 established.
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
41. The Hon'ble Apex Court in C. Sukumaran Vs. State of Kerala(2015) 11 SCC 314 22 held that:
"In the present case, as has been rightly held by the High Court, there is no demand for the illegal gratification on the part of the appellant under Section 7 of the Act. Therefore, in our view, the question of acceptance of illegal gratification from the complainant under the provision of Section 13(1)(d) of the Act also does not arise. The learned Special Judge has come to the erroneous conclusion that the appellant had received the money and therefore he had recorded the finding that there was demand and acceptance of the bribe money on the part of the appellant and convicted and sentenced the appellant. However, the High Court on re-appreciation of evidence on record has held that the demand alleged to have been made by the appellant from the complainant PW2, was not proved and that part of the conviction and sentence was rightly set aside in the impugned judgment. However, the High Court has erroneously affirmed the conviction for the alleged offence under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the appellant under Section 7 of the Act, should have been proved to sustain the charge under Section 13(1)(d) of the Act."
42. In P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152, [LQ/SC/2015/1207] the Hon'ble Apex Court held that:
"Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Section 7 and 13 of 1988 Act."
43. In T. Subramanian Vs. State of Tamil Nadu (2006) 1 SCC 401, [LQ/SC/2006/17] the Hon'ble Apex Court held that:
Mere receipt of Rs. 200/-by the appellant from PW-1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification... We may briefly refer to the evidence keeping the said principles in view. The evidence no doubt established that PW-1 accompanied by PW-2 went to PW-13 and gave a complaint, that a trap was arranged, the currency notes were chemically treated, that PW-1 delivered the chemically treated currency notes (Rs. 200/-) to the appellant in the presence of PW-2, that the appellant received the said amount, that the same was recovered by the raiding party from the appellant, and that the appellant's hands turned pink when dipped in the chemical solution. The above evidence no doubt proves that a sum of Rs. 200/-was paid by PW-1 to the appellant. But the crucial question is whether the appellant had demanded the said amount as illegal gratification to show any official favour to PW-1 and whether the said amount was paid by PW-1 and received by the appellant as consideration for showing such official favour.."
44. The evidence on record would disclose that there is no demand made by either accused Nos. 1 or 2 on 10.07.2008 or 22.07.2008. The only evidence on record is with regard to the recovery of money from accused No. 2. Without any demand, recovery of money itself is not sufficient to prove the guilt of the accused as per the judgments cited above. The accused need not prove his defence beyond reasonable doubt and it is sufficient if he could raise a probable doubt to accept his contention, as true. As the evidence of PW.9 also would disclose that in practice they were receiving late cash payments in rural branches and as PW.1 was also having an account in the said branch, therefore the defence taken by accused No. 2 appears to be probable. If two views are possible from the very same evidence, it cannot be said that prosecution had proved the case beyond reasonable doubt that accused No. 2 had received the amount of Rs. 5,000/-towards illegal gratification. Therefore, the charge against the appellants was not proved beyond reasonable doubt and the trial court was not correct in convicting and sentencing the accused Nos. 1 and 2.
45. Hence, it is considered fit to allow both the appeals by setting aside the common judgment of the trial court in C.C. No. 3 of 2009 dated 20.08.2013 convicting both accused Nos. 1 and 2 for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The bail bonds of the accused shall stand cancelled. The fine amount paid by them, if any is liable to be refunded to them.
46. Miscellaneous petitions pending, if any, shall stand closed.
