THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.1168 of 2004 BETWEEEN: State: rep. by Dy.Supdt. of Police … Appellant AND N.Neelachalam , Divisional Accounts Officer. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1168 of 2004 JUDGMENT: The accused/respondent was working as Divisional Accounts Officer in the office of Executive Engineer, Cyclone Emergency Reconstruction Project (CERP), Panchayat Raj Department, Vizianagaram. By judgment dated 18.12.2003 in CC.No.44 of 2000, the Special Judge for ACB cases, Visakhapatnam, acquitted the accused of the offences punishable under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). Questioning the same, the State filed this appeal. 2. PW1 is a Civil contractor. He did contract works in CERP, Panchayat Raj Department, Vizianagaram, including digging of tanks in Bobbili Mandal. It is alleged that PW1 had to get bill amounts from the department of the accused and that on 17.03.1994 and 21.03.1994, the accused demanded Rs.1,500/- as illegal gratification for getting PW1’s bills passed. With the said allegations, PW1 gave Ex.P1 report to PW6, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Vizianagaram. After issuing Ex.P15 FIR on the basis of Ex.P1, PW6 organized trap for the accused on 29.03.1994. It is alleged that the trap was successful and that the accused was caught red handed while in possession of MO.5 tainted cash of Rs.1,500/-. Plea of the accused is one of not guilty. After trial, the lower Court found that the accused was not guilty of the charges. 3. In this appeal, the Special Public Prosecutor contended that evidence of PW1 is contrary to Ex.P1 report given by him before the Magistrate. It is further contended that the accused could not substantiate this instant explanation given during the trap. It is contended by the respondent’s counsel that by the date of trap, on 29.03.1994, there was no official favour pending with the accused as bill submitted by PW1 was encashed by him on 23.03.1994 itself. 4. In this case, both PW1/decoy witness and PW2/accompanying witness, turned hostile to the prosecution totally. PW1 deposed that he requested the accused to prepare and pass the bills quickly and that the accused informed him that he has to spend some amount so that the bills will be passed quickly. PW1 says that he agreed to pay Rs.1,500/- as demanded by the accused towards expenses for insurance, thinking that insurance amount would be recovered in the bill. PW1 did not say that the accused demanded him to pay any bribe for passing bills. Simply because PW1 stated that contents of Ex.P1 are correct, it is not going to make Ex.P1 as substantive piece of evidence. His evidence in Court runs counter to contents of Ex.P1. At best, Ex.P1 may falsify evidence of PW1 before the Court. But, contents of Ex.P1 cannot be taken as substitute for PW1’s evidence in Court. At the time of alleged demand for bribe, nobody else was present with PW1. 5. With regard to the trap, PW1 deposed that the accused did not demand money from him, but he himself paid Rs.1,500/- tainted currency notes (MO.5) to the accused and that since the accused was knowing as to why he was giving the said money, the accused did not ask him any details when he gave the amount to the accused and that the accused took the same from him and kept the wad of currency notes in his shirt pocket. At this stage, a reference may be made to Ex.P13-post- trap proceedings got prepared by PW6/trap-laying officer in the presence of mediators including PW5. During post-trap proceedings, the accused gave spot explanation to the effect that he received MO.5 cash of Rs.1,500/- by way of repayment of loan obtained by PW2 from him previously. According to the said statement given by the accused, PW2 promised to repay Rs.1,500/- either by himself or by sending through PW1 and therefore, he received Rs.1,500/- from PW1 in the presence of PW2. From the evidence of PW1 during trial, it is not specified with which intention PW1 received MO.5 tainted cash of Rs.1,500/- from him. PW2 totally expressed his forgetfulness on this episode. In cross-examination by the defence counsel, he admits that in March 1994, he borrowed Rs.1,500/- from the accused and that he told the accused that he would repay the said amount of Rs.1,500/- taken as hand loan either personally or through PW1. The spot explanation given by the accused in Ex.P13- post trap proceedings is substantiated by the evidence of PW2. Therefore, the prosecution failed to prove not only demand for bribe, but also acceptance of MO.5 by the accused as bribe from PW1. 6. Even as per the prosecution allegations in the charge sheet, the accused though demanded bribe on 17.03.1994 and 21.03.1994, PW1’s bill was passed on 23.03.1994. Ex.P4 is the relevant entry in the challans and drafts register of Pay and Accounts Office to the above effect. It follows that by the date of trap on 29.03.1994, there was no official favour pending with the accused. 7. In the light of the above circumstances, the lower Court rightly came to the conclusion in favour of the accused and found him not guilty of the charges. 8. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:11.07.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1168 of 2004 DATED:11.07.2011 ysk