THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 885 of 2004 Dated: 09th June, 2011 Between: State A.C.B. Appellant/Complainant And Y. Raghunadha Rao Respondent/Accused Officer THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 885 of 2004 JUDGMENT: The special judge for SPE and ACB cases, Vijayawada by Judgment dated 04.08.2003 in C.C.No.8 of 1995 found the accused/respondent not guilty of the charges under Section 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and acquitted the accused. Questioning the said acquittal, the State preferred this appeal. The accused/respondent was working as Special Surveyor in the office of Urban Land Ceilings, Guntur during the relevant period. PW.1, his mother PW.2 and his sister Thota Rajeswari owned house site at Rama Nagar of Guntur and they wanted to sell 1050 Sq.yds of their site. For the said purpose, they wanted Clearance Certificate from the Urban Land Ceiling Authority, Guntur. On 09.06.1994, PW.1 filed an application in that regard before the Special Officer, Urban Land Ceilings, Guntur, who is the competent authority. Ex.P1 is the application. The said application was filed jointly by PW.1, his mother and his sister. The Special Officer endorsed the same to the accused for his inspection and report. On 10.06.1994, the accused inspected the land. It is alleged that during that time, the accused demanded Rs.6,000/- as illegal gratification for submitting favourable report and that PW.1 expressed his inability to pay the amount and that the accused did not complete the work and kept the same pending. It is further alleged that PW.1 met the accused in his office on 15.06.1994 and renewed his request and that the accused reiterated his demand and reduced the bribe amount from Rs.6,000/- to Rs.4,500/-, for which PW.1 agreed with reluctance. Thereupon PW.1 approached PW.8-Inspector of Anti Corruption Bureau (ACB) and gave Ex.P2-report dated 16.06.1994. PW.9 is the Deputy Superintendent of Police, ACB, Vijayawada and he arranged trap for the accused. It is alleged that on 17.06.1994 at 6.30 P.M., when PW.1 met the accused, the accused demanded and accepted bribe of Rs.4,500/-. Plea of the accused is one of total denial. He pleaded not guilty of the charges. After trial, the lower Court accepted the defence version and found the accused not guilty of the charges. In this appeal, it is contended by the Special Public Prosecutor that there is evidence of PWs.7 and 9, coupled with Ex.P17-post trap proceedings, to show that the accused accepted the bribe of Rs.4,500/- covered by MO.3, and that finding of the lower Court is not based on proper reading of the prosecution evidence. On the other hand, the respondent’s counsel, placing reliance on STATE OF RAJASTHAN v. MOHAN LAL[1] of the Supreme Court, contended that in an appeal against acquittal there is double presumption in favour of the accused and that even if two views are possible from the evidence on record and if the view taken by the lower Court is one of the said two possible views, then the appellate Court should be slow in disturbing the finding of acquittal. It is further contended that the lower Court has properly appreciated the evidence on record and that the lower Court properly rejected the evidence of PWs.7 and 9 having regard to the possibility of they not witnessing giving of amount by PW.1 and receiving of amount by the accused, and also in view of the inconsistent versions stated by them on various other aspects. For reasons best known to him, PW.1 turned hostile to the prosecution even though he gave statement under Section 164 Cr.P.C. before the Magistrate as contained in Ex.P3. The lower Court while recording acquittal of the accused, ordered prosecution of PW.1 for committing offence under Section 193 IPC by exercising power under Section 340/195(1)(b) Cr.P.C. Even though PW.1 filed separate appeal in Criminal Appeal No.1366 of 2005 questioning that part of the order of the lower Court, today PW.1 had withdrawn the said appeal and it was accordingly dismissed by this Court as withdrawn. According to PW.1, after the accused inspected the land and took measurements, he tried to meet the accused in his office for about four days and could not find him and he found a broker by name Rambabu who informed him that unless he pays money, permission will not be given. According to PW.1, it was Rambabu who originally quoted the bribe amount as Rs.6,000/- and subsequently reduced the same to Rs.4,500/-. Though PW.1 speaks about he reporting to the Inspector of ACB, Guntur about the broker collecting money in land ceiling authority, the Inspector of ACB dictated the report to one Narayana who accompanied him and obtained his signature on Ex.P2. With regard to the trap, it is the version of PW.1 that after arrival of the accused to his office, he approached the accused and offered to pay the bribe amount stating that Rambabu informed him to pay the said amount to him for completing his work, and that the accused refused to take the amount and that he went to meet Rambabu and informed refusal of the accused to Rambabu and that Rambabu asked him to pay the amount to the accused stating that the accused would say like that only and he would receive the amount. PW.1 deposed that at that time he found the accused leaving the office and that he followed the accused and requested him to complete his work and that the accused informed him about completion of part of work and that he followed the accused and that the accused went to a book stall on a scooter and that he followed the accused on his scooter and went to the accused at the book stall and offered to pay the tainted amount of Rs.4,500/- again to the accused and that the accused refused to receive the amount and that while the accused was wiping his face with a handkerchief, he kept the tainted amount in his right side pant pocket and that PW.9 also witnessed the same, and that when he gave signal to the trap party, the trap party consisting of PW.9 and others came there and took the accused into office. As per the above evidence of PW.1, there was no demand much less acceptance of bribe by the accused from PW.1 On the other hand, in Ex.P17-post trap proceedings, it is the prosecution version that at about 6.30 P.M., PW.1 was seen getting down from Urban Land Ceilings building along with the accused and that both of them came down and talked for a while and that PW.1 was seen taking the tainted amount from his handbag and paying the same to the accused and that the accused received the tainted amount with his left hand and changed it to right hand and kept the same in his right side pant pocket and that the accused went towards motor cycle which was parked near the staircase and that PW.1 came to the entrance of the gate of the building and gave pre- arranged signal and pointed out towards the accused who was about to start the motor cycle and that the raid party immediately rushed to the accused and that when PW.9 introduced himself, the accused became perturbed and took out the wad of currency notes from his right side of the pocket and threw the same on ground. PW.7 is one of the mediators in the Ex.P17. He was working as Deputy Commercial Tax Officer, Arundalpet, Guntur. PW.7 repeated in his evidence the version contained in Ex.P17. PW.9, who is the trap laying officer, deposed that after PW.1 and the accused got down from the 2nd floor, they saw PW.1 paying amount to the accused and that PW.1 gave pre-arranged signal and pointed towards accused who was proceeding towards parked motor cycle. He says that they also witnessed the accused receiving the amount from PW.1 with his left hand, transferring the same to his right hand and keeping the same in his right side pant pocket. But with regard to throwing of amount by the accused and collection of the same by the trap laying officer, there is inconsistency between evidence of PW.9 and Ex.P17. It is the version of PW.9 that after he led the accused into his office and to his seat, he enquired the accused to produce the tainted amount and the accused stated that after coming to know about their identity, he threw the amount away. PW.9 says on his instructions, the second mediator Venkata Rao went to the place and brought the currency notes. At another point in the examination-in-chief, PW.9 deposed that after introducing themselves to the accused, he asked the accused to lead them to his seat and that while climbing the staircase the accused took out the wad of currency notes and threw the same on the floor and that he saw the same clearly and that on suspicion he asked one of the mediators to pick up the said currency notes and the mediator Venkata Rao picked up the said currency notes and brought the same to the office of the accused. The said Venkata Rao who is the second mediator is not examined nor explained at what point of time and in what manner he collected the tainted currency notes from the ground and handed over the same to PW.9. If really PW.9 saw the accused throwing the wad of currency notes immediately after he introduced himself to the accused, the question of collecting those currency notes after going to seat of the accused after negotiating the staircase may not arise. If PWs.7 and 9 saw PW.1 paying MO.3-cash to the accused, then there was no need for PW.1 to give pre-arranged signal and to point out the accused to them. According to the prosecution version, one P.C.Ramanjaneyulu was employed to give signal after PW.1 paid the money to the accused and the said P.C.Ramanjaneyulu was stationed at the entrance gate of the office. It is the evidence of PW.9 that when PW.1 gave signal, P.C.Ramanjaneyulu relayed the signal and thereupon the trap party entered into the scene. The question of giving signal and relaying signal arises only when the trap party was away at a distance and when they were not in a position to see what was happening at the scene between PW.1 and the accused. As per the evidence of PWs.7 and 9, originally when they reached near the office of Urban Land Ceiling, they waited near the park located by the side of that office and sent PW.1 and P.C.Ramanjaneyulu to complete passing of the tainted amount to the accused. It was at 4.30 P.M. But the accused was not available in his office as he was stated to have gone to some Court. Therefore, again at about 6.30 P.M., PW.1 went to office of the accused after the accused returned to his office. It is not noted as to where the trap party including PWs.7 and 9 were at 6.30 P.M. when PW.1 went into the office for the second time. As per evidence of PW.7, he was near Sri Sai Nursing Home located opposite to the entrance gate of the office. Ex.P16 is rough sketch of the scene of offence. In Ex.P16, location of the park is not noted. According to the defence version, the park is located at a distance of about 170 yards from office of the accused. Sri Sai Nursing Home is also not just opposite to entrance gate of office of the accused. It is diagonally located in the opposite direction from the entrance gate of office of the accused. It is contended that after PW.1 and the accused got down the staircase, they would not be visible to the persons who were waiting either at the park or at Sri Sai Nursing Home because there is a compound wall obstructing the vision. Having regard to the above evidence of PWs.7 and 9 and the attending circumstances explained above, in my opinion, the lower Court rightly came to the conclusion that evidence of PWs.7 and 9 with regard to they witnessing PW.1 paying tainted cash to the accused is shrouded with doubt and suspicion. From the beginning, it is the version of the accused in Ex.P17 that he never demanded any bribe amount from the complainant and that the complainant offered the said money voluntarily and that he threw away the currency notes out of fear only. Even though there is no dispute with regard to the accused throwing away the currency notes, there is no evidence at all to show that the accused demanded any bribe amount from PW.1 and the evidence relating to PW.1 paying the tainted amount to the accused is shadowed with doubt. In the absence of proof of demand and acceptance of the bribe by the accused, the question of drawing presumption under Section 20 of the Act may not arise (see BANARSI DASS v. STATE OF HARYANA[2] of the Supreme Court). At this state, it may be noted that even before the date of trap, the accused completed the inspection work and sent his report as per Ex.P15 to the Superintendent of his office for placing the same before the Special Officer. Ex.P15 which was seized by the trap laying officer on the same date discloses that, one day prior to the date of trap, the accused sent his report which report was favourable to PW.1. Therefore, it is contended that by the date of trap, there was no official favour pending with the accused. But, there is no evidence on record to show that PW.1 was aware of the accused completing the work and sending favourable report to his higher officers. In any event, the prosecution evidence is not sufficient enough to find the accused guilty of the charges framed against him. I do not find any valid reasons to come to a different conclusion in this appeal. In the result, the appeal is dismissed. ______________________________ SAMUDRALA GOVINDARAJULU, J Date: 09th June, 2011 KSM [1] 2009(6) SCALE 240 [2] AIR 2010 SC 1589