THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.1984 of 2004 BETWEEEN: State: rep. By Inspector of Police. … Appellant AND 1. Sri Srimallipeddi Chenchaiah & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1984 of 2004 JUDGMENT: The State filed this appeal against acquittal of the respondents 1 and 2/A1 and A2 of the offences punishable under Sections 7, 12, 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) in CC.No.4 of 1999 on the file of Special Judge for SPE and ACB cases, Nellore, by judgment dated 30.04.2004. A1 was working as Revenue Inspector in Gudur Municipality, Gudur. A2 was described as Bill Collector in the same municipality, but A2 was working as Malaria Mazdur in Class-IV services of the municipality. 2. PW1 is son of K.M.Vijayamma. Vijayamma applied to Gudur Municipality as per Ex.P1 for mutation of her name for house bearing No.13-8/2 of Kummari street, Gudur on the basis of a registered sale deed dated 22.11.1990 obtained by her from her brother. It is alleged that on 04.07.1996, PW1 approached A1 in his office and requested him to do the said official favour and that A1 demanded bribe of Rs.650/- from PW1 for recommending mutation of ownership in favour of PW1’s mother and for entering the same in municipal records and that after bargain, the bribe amount was reduced to Rs.550/- by A1 and that A1 directed PW1 to pay bribe amount on 06.07.1996 between 8:00 and 9:00 A.M. in his office. Making the said allegations, PW1 gave Ex.P2 report to PW4, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Nellore. After issuing Ex.P4 FIR on 06.07.1996, PW4 organized trap for A1 on the same day in the presence of mediators, including PW2. PW2 was working as Assistant Executive Engineer in Panchayat Raj Circle Office, Nellore. Post-trap procedures were carried out prior to the trap under the cover of Ex.P5 mediators report. It is alleged that the trap was successful and that during the course of trap, PW1 handed over MO.3 tainted cash of Rs.550/- to A2 on the directions of A1 in his presence. After receiving pre-arranged signal from PW1, the trap party entered into municipal office and seized MO.3 tainted cash from possession of A2 under the cover of Ex.P9 mediators report relating to post-trap proceedings. Plea of A1 and A2 was that of not guilty. After trial, the lower Court found that A1 was not guilty of the charges under Sections 7 and 13(1)(d)/13(2) of the Act and that A2 was not guilty of the charge under Section 12 of the Act. 3. In this appeal, the Special Public Prosecutor contended that the lower Court did not appreciate the evidence on record and particularly that of PW1 properly and came to an erroneous conclusion and that this Court may review the entire evidence and arrive at proper conclusion in favour of the prosecution. On the other hand, the counsel for A1 and A2 contended that the lower Court properly appreciated the evidence on record and came to a right conclusion in favour of the accused, as it was a false trap case. 4. Insofar as A2 is concerned, he has no role in this affair either at the stage of demand or at the stage of acceptance; and since A2 was physically present along with A1, he is stated to have directed A2 to receive the amount from PW1. Even as per prosecution case, A2 was only rendering physical assistance to A1 at the time of trap and A2 had no role in this case, much less guilty mind. The Special Public Prosecutor contended that on the date of trap, A2 was by the side of A1 and A2 heard A1 demanding for bribe amount during the trap and A2 saw A1 directing PW1 to pay the bribe amount to A2 and with the said knowledge of facts, A2 received MO.3 cash from PW1 and that therefore, A2 cannot absolve himself from liability in this case. It is PW1’s evidence that A1 was sitting in his chair and A2 was standing and that A1 asked him whether he brought the bribe amount and that he informed A1 about he bringing the bribe amount and that A1 asked him to pay the amount to A2, who was standing besides A1 and that he gave the amount to A2 who took the amount with his right hand, counted the same and kept the amount in his left shirt pocket. PW1 in cross-examination deposed that he came to know name of A2 only after making payment of money to him and that he had no prior acquaintance with A2. Thus, A2 was only an intermeddler and had no primary role to play in this matter. No doubt, during post trap proceedings, hand washes of A2 in Sodium Carbonate Solution turned pink as per Mos.6 and 7. 5. Even as per prosecution case, no part of the tainted amount was recovered from possession of A1. Hand washes of A1 in Sodium Carbonate solution did not turn pink as per Mos.4 and 5. It is A1’s version that he was falsely implicated in this case because one broker by name Pardhasaradhi fought with him. Pardhasaradhi was doing Pairavi (liaison work) in Government offices including Municipal office, Gudur. PW1 in cross-examination deposed that he was aware about Pardhasaradhi and BalaMurali Krishna living in on pairavi work in Government offices on behalf of parties for remuneration including at Municipal office and that in the first instance, he approached A1 through Pardhasaradhi who negotiated with A1 in connection with mutation of his mother’s name for the property and that at that time, Pardhasaradhi quarreled with A1 and that A1 bluntly informed Pardhasaradhi that no pairavi or brokerage is allowed in municipal office and the parties themselves can approach directly any person in the office to get their work done without recourse to payment of money, and that Pardhasaradhi became very much annoyed and became angry towards A1 for preventing him from doing pairavy, and that Pardhasaradhi in fact suggested to A1 to approach ACB to file complaint against A1. He says that he did not observe whether Pardhasaradhi also followed him to office of PW4. PW1 further says that he met Pardhasaradhi on two occasions, and on both the occasions, he fought with A1. From this evidence of PW1, it is evident that A1 did not encourage role of brokers in municipal office and suggested that parties themselves can approach the officers and staff in municipal office in connection with their works and get the works done in that office without paying any money. In that view of the matter, PW1 cannot be believed to say that on 04.07.1996, when he approached A1, he demanded for bribe of Rs.650/- and reduced the same to Rs.550/-. The role of Pardhasaradhi behind PW1 giving Ex.P2 report to PW4 is not ruled out. It was Pardhasaradhi who was instrumental in making PW1 to give Ex.P2 report to PW4, who organized this trap. 6. DW1 is a Municipal contractor. It is his evidence that on 06.07.1996, from 8:00 A.M. until ACB raid party came into the office, he was sitting in Municipal Manager’s room along with others including A1. According to him, he was there for about 45 minutes prior to ACB party coming there and catching hold of A1. He says that throughout the said 45 minutes period, A1 was in the room of Municipal Manager talking to DW1 and others. Presence of DW1 during post- trap proceedings is noted in Ex.P9 mediators report. During post- trap proceedings covered by Ex.P9, A1 totally denied both demand as well as acceptance of bribe from PW1, though A2 gave statement which is noted in Ex.P9. The said statement of A2 is inadmissible in evidence as it is in the nature of a confession given to a police officer which is prohibited under Section 26 of the Indian Evidence Act. DW1 did not speak to presence of A2 with A1 in Municipal Manager’s room and did not speak to PW1 approaching A1 during that time. 7. During post trap proceedings, file relating to Ex.P1 application of Vijayamma was seized. PW1 deposed in cross- examination that ACB party searched for Ex.P1 application with its enclosures for about 45 minutes, but they could not trace it. He says that he did not know whether Pardhasaradhi handed over the papers to ACB officials on that day saying that those papers were with him. PW1 admits that Pardhasaradhi also was accompanying him to the municipal office on 04.07.1996, when he went to meet A1. On scrutiny of entire evidence on record, I have absolutely no doubt in my mind that Pardhasaradhi is villain of piece in this case. Because of his animosity towards A1, he made PW1 to give Ex.P2 report to the police and became instrumental for this trap. Ultimately, no tainted cash was found with A1 and his hand washes did not turn pink in Sodium Carbonate solution. The tainted cash was found with A2 who had nothing to do with the affair relating to mutation of PW1’s mother’s name in municipal records. No connecting link between A1 and A2 with tainted cash could be established by the prosecution. 8. Placing reliance on T.SUBRAMANIAN Vs. STATE OF T.N.[1] and C.M. GIRISH BABU Vs. CBI, COCHIN[2] of the Supreme Court, it is contended by the respondent’s counsel that in the absence of proof of demand and acceptance, presumption under Section 20(1) of the Act cannot be drawn in favour of the prosecution, simply because tainted cash was recovered from the accused. 9. In the case on hand, evidence of PW1 is doubtful; and his evidence is tainted because of his association with Pardhasaradhi, who is a broker and who was prevented from doing his work in municipal office by A1. Therefore, I have no hesitation to accept finding of the lower Court that the prosecution could not prove its case beyond doubt. There are no grounds for interference with the said finding in this appeal. 10. In the result, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:07.07.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1984 of 2004 DATED: 07.07.2011 ysk [1] (2006) 1 Supreme Court Cases 401 [2] (2009) 3 Supreme Court Cases 779