IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1352 of 2003 DATE:14.03.2011 Between: Burugula Prakash @ Prakash Patil …… Appellant And State – rep. by Inspector of Police, ACB, Sanga Reddy, Medak District. ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1352 of 2003 JUDGMENT : The appellant/accused was working as Horticulture Officer at Siddipet of Medak District. In C.C. No.22 of 1999, the Principal Special Judge for S.P.E and A.C.B cases, Hyderabad, by judgment dated 04.12.2003 convicted the accused for the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced on each count to rigorous imprisonment for 2 years and fine of Rs.2,000/-. He was found guilty of demanding and accepting bribe/illegal gratification of Rs.15,000/- from P.W-1 for handing over one demand draft of Rs.69,641/- (which was already handed over) and another demand draft for Rs.46,895/- towards subsidy amount relating to installation of drip irrigation systems in the lands of farmers. According to the prosecution case, P.W-1 is partner of Sai Shanker enterprises who is dealer for Rungta Irrigation Limited at Siddipet. It is evidence of P.W-1 that he is a partner in Sai Shanker enterprises. It is his further evidence that they executed drip irrigation works of beneficiaries viz., Bharathi and others of Rampur village and also of Kanthamma of Machapur village and that bills were raised for Rs.69,000/- and Rs.46,895/- respectively and that when he met the accused at Siddipet and enquired about the payments, the accused demanded for bribe of Rs.7,000/- for handing over the demand draft of Rs.69,000/- and that when he pleaded with the accused for payment of the said bribe after encashing the demand draft the accused did not hand over the demand draft and that on repeated requests the accused delivered the demand draft for Rs.69,000/- to him and that thereafter he encashed the demand draft, but did not meet the accused and pay the promised bribe of Rs.7,000/- for 20 days. It is his further evidence that he approached the accused after 20 days of receiving the first demand draft, for realising the bill amount of Rs.46,895/- relating to the work of Kanthamma and that it was informed to him about the accused receiving the said demand draft for Rs.46,895/-. P.W-1 says that on 26.10.1998 the accused came to his house and questioned him as to why he did not pay earlier demanded amount of Rs.7,000/- to him though he encashed the previous demand draft and that the accused threatened him that no work would be assigned to him in future and he would not hand over the demand draft for work relating to Kanthamma. According to P.W-1, on 26.10.1998 he met the accused and questioned him about the demand draft relating to the work of Kanthamma and the accused demanded bribe of Rs.15,000/- in total i.e., Rs.7,000/- for the work relating to Bharathi and others and Rs.8,000/- for the work relating to Kanthamma. He says that though he requested the accused to deliver the 2nd demand draft, he did not hand over the said demand draft. Thereupon, on 28.10.1998 P.W-1 went to Hyderabad and met P.W-6 Deputy Superintendent of Police, Anti Corruption Bureau, Hyderabad Range and presented Ex.P-1 report to him. 2) At this stage itself it may be noted that Siddipet where office of the accused is located and where the offence is stated to have taken place is located within Nizamabad Range of A.C.B. In spite of it, P.W-6 entertained Ex.P-1 report of P.W-1 and arranged trap for the accused on 29.10.1998. It is the evidence of P.W-6 in cross-examination that he was not in-charge of Nizamabad A.C.B Range and that Siddipet is not within the jurisdiction of Hyderabad city Range and that Siddipet is in the jurisdiction of Nizamabad Range and that office of the Inspector of A.C.B is located in Sangareddy which is the head quarters of Medak District. Though he claims that his superior officers instructed him to conduct investigation in this case and the said instructions are in writing, he did not produce any such written instructions of the superior officers in A.C.B authorising him to conduct investigation in this case. Even though Ex.P-1 report of P.W-1 disclosed cognizable offence, it may not prevent P.W-6 to register the same as crime. But, after registration of the case, F.I.R should have been transferred to the Range which is notified as a Police Station having territorial jurisdiction in which the offence took place. Instead, Ex.P-1 report was registered at Hyderabad and it was investigated into by the A.C.B officer working at Hyderabad Range. No material is placed before the Court to show that Hyderabad Range has got territorial jurisdiction over Siddipet of Medak District also either for registration of cases or for investigation of cases relating to that place. 3) Be that as it may, it is the prosecution case that P.W-2 accompanied P.W-1 to the house-cum-office of the accused at Siddipet on 29.10.1998. When they first went there, the accused was not available and it was so informed to them by wife of the accused. According to the accused, D.W-1 (Bhupathi Reddy) and Bala Narsayya were also present in that house along with wife of the accused and the said male persons informed P.W-1 about absence of the accused in the house. P.Ws 1 and 2 denied the said suggestion. It is evident that D.W-1 and Bala Narsayya were introduced by the accused as persons present in his house when P.W-1 went there, in order to examine one of them as defence witnesses to speak and support the defence version. Presence of D.W-1 and Bala Narsayya along with wife of the accused in the absence of the accused in house, cannot be believed. There was no reason for D.W-1 and Bala Narsayya to be present in the house of the accused in his absence and when his wife alone was present in the house. No relationship is alleged for D.W-1 with the accused. Therefore, I do not propose to place any reliance on the evidence of D.W-1. 4) After the accused returned to his house-cum-office on the same day, again P.Ws 1 and 2 went there. But P.W-2 did not enter into the house of the accused along with P.W-1. P.W-1 alone went inside the house of the accused for the purpose of paying tainted amount of rs.15,000/- to the accused. P.W-2 is the then Junior Assistant in the office of Irrigation Department at Hyderabad. He was one of the mediators in Ex.P-4 pre-trap proceedings and in Ex.P-5 post-trap proceedings. Though P.W- 2 was tried to be employed as accompanying witness or shadow witness for P.W-1, the investigating agency could not fulfil their object because P.W-2 had chosen to remain outside the house of the accused. 5) It is evidence of P.W-1 that after entering into the first room of house of the accused, he met the accused and requested him to deliver the demand draft and that the accused questioned him whether he brought the amount demanded by him earlier and that he answered in the positive and that the accused asked him to give the amount and that he picked up the amount from his shirt pocket with his right hand and gave it to the accused who received it with right hand and counted it with two hands and kept the same in his right side hip pocket of the pant and that the accused took out the demand draft from Ex.P-2 diary which was in the cupboard and gave it to him. After the accused came out and gave pre-arranged signal to the raid party, P.W-6 along with officers, staff and mediators entered into house-cum-office of the accused and seized M.O-1 tainted cash of Rs.15,000/- from the pocket of the accused. Both hands of the accused were rinsed in Sodium Carbonate solution and the solution turned pink. Ex.P-5 post-trap proceedings were prepared incorporating the said facts. As per Ex.P-5 post-trap proceedings, when P.W-6 questioned the accused whether he has got anything to say about demand and acceptance of the bribe amount from P.W-1, the accused stated that he demanded only Rs.2,000/- as bribe to meet his petrol expenditure and that he received Rs.15,000/- as bribe from P.W-1 when he offered that amount to him. Though statement of the accused explaining the circumstances relating to his possession of the tainted cash, is relevant under Section 8 of the Indian Evidence Act, I am of the opinion that that portion of the statement which is self-incriminatory and which is in the form of confession, is hit by Section 25 of the Evidence Act. In any event, even as per the version said to have been given by the accused during post-trap proceedings, he received Rs.15,000/- from P.W-1 when the said amount was offered by P.W-1 to him, even though he is stated to have demanded Rs.2,000/- only as bribe to meet his petrol expenditure. Thus, as per the spot explanation stated to have been given by the accused, there was no demand for bribe of Rs.15,000/- by the accused from P.W-1. 6) No doubt, under Section 20 of the Act, there is statutory prevention to the effect that if obtaining of a gratification other than legal remuneration by a public servant is proved, then it must be presumed that the said obtaining of gratification is as a motive or reward. In the case on hand, the accused during trial did not dispute he receiving M.O-1 tainted cash of Rs.15,000/- from P.W-1. But he offered an explanation for the same, in order to rebut the presumption under Section 20 of the Act. 7) The Special Public Prosecutor placed reliance on B.Noha V. State of Kerala[1] of the Supreme Court on this aspect. The relevant portion thereof is to the following effect. “When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra (2000 (8) SCC 571) as follows: "The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." This decision was followed by this Court in M. Narsinga Rao v. State of A.P. (2001 (1) SCC 691). There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW- 1. It was held in the decision in State of A.P. v. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification.” 8) On the other hand, placing reliance on Banarsi Dass V. State of Haryana[2] of the Supreme Court, it is contended by the senior counsel appearing for the appellant that mere admission or proof of receiving the tainted cash is not sufficient to convict the accused person for the offences under the Act and that the prosecution has to prove demand as well as acceptance of the bribe. The Supreme Court observed: “11. To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused.” 9) In the light of the above fact situation and case law on the subject, evidence let in by the prosecution has to be scrutinised in this case. There is no dispute of the fact that the demand drafts for Rs.69,641/- as well as for Rs.46,895/- towards Government subsidy for supply of drip irrigation material to the farmers were obtained in favour of Rungta Irrigation Limited. Its office is located at Hyderabad and other places. There is no dispute that Sai Shankar Enterprises, Siddipet is the dealer of Rungta Irrigation Limited at Siddipet. Though P.W-1 claims that he was partner of Sai Shankar Enterprises, the prosecution could not substantiate the said fact. On the other hand, as per Ex.D-3 proforma for the dealers appointed by the drip firms, it is shown that in Sai Shankar Enterprises which is dealer of Rungta Irrigation Limited, Hyderabad, there are no other persons than Erri Balreddy of Siddipet. Even though there is a column prescribing name/names of the owners/partners for the dealership and their addresses, only the name of Erri Balreddy is given against that column. The name of P.W-1 as one of the partners in Sai Shankar Enterprises is conspicuously absent in Ex.D-3. It is further shown from Exs.D-1 and D-2 that previous demand draft for Rs.69,641/- was received by E.Balreddy from the accused. Ex.D-1 is Kutcha receipt passed by E.Balreddy for receipt of the said demand draft, whereas Ex.D-2 is the pucca receipt issued by Rungta Irrigation Limited for having received the said demand draft. P.W-1 is no other than brother-in-law of the said Balreddy. P.W-5 is regional Manager in Rungta Irrigation Limited, Hyderabad. He says that Balreddy is the dealer at Siddipet and that he does not know P.W-1 at all. He admits that Ex.D-3 which is the dealers’ agency information sheet, does not show name of any partner for Balreddy. P.W-1 in cross-examination admits in unequivocal terms that he (P.W- 1) is the dealer for Bazaz Irrigation systerms and that Balreddy is the dealer for Rungta Irrigation Limited. Therefore, claim of P.W- 1 that he is a partner of Sai Shankar Enterprises is proved to be false. P.W-3 who is the senior assistant in the Horticulture Department deposed that the demand draft was issued in favour of the supplier viz., Rungta Irrigation Limited. In fact, Ex.D-1 receipt passed by Balreddy and Ex.D-2 receipt issued by Rungta Irrigation Limited show that the previous demand draft for Rs.69,641/- was issued by the Horticulture Department in favour of Rungta Irrigation Limited only and not in favour of the dealer located at Siddipet. Ex.D-1 shows that Balreddy received the said demand draft from the Assistant Director of Horticulture through the accused on 20.09.1998 and Rungta Irrigation Limited in turn received the same on 21.09.1998 as per Ex.D-2 receipt. When the demand draft stands in the name of Rungta Irrigation Limited, the question of P.W-1 encashing the same does not arise at all. He could not have encashed the demand draft for Rs.69,641/- issued in favour of Rungta Irrigation Limited. Therefore, the evidence of P.W-1 that he encashed the previous demand draft for Rs.69,641/-, is proved to be false. 10) Ex.D-1 shows that the previous demand draft for Rs.69,641/- was received by Balreddy who issued the said hand written receipt to the accused. It does not show that the said demand draft was received by P.W-2. In cross-examination, P.W-1 claims that he also accompanied Balreddy at the time of the accused handing over the previous demand draft of Rs.69,641/- to Balreddy. The demand draft could not have been handed over by the accused to P.W-1 because P.W-1 has nothing to do with Sai Shankar Enterprises or with dealership of Rungta Irrigation Limited. Therefore, the allegation that the accused demanded P.W-1 for bribe of Rs.7,000/- for delivering the previous demand draft for Rs.69,000/- and odd, has no basis. Presence of P.W-1 at the time of delivery of the said previous demand draft, is itself doubtful. Further, there is no question of the accused demanding any bribe muchless of Rs.7,000/- from P.W-1 at the time of delivery of demand draft for Rs.69,000/- and odd as P.W-1 had nothing to do with the said transaction relating to supply of drip irrigation material by Rungta Irrigation Limited through Sai Shankar Enterprises of Balreddy. Though the prosecution cited E.Balreddy is one of the witnesses for the prosecution in the charge sheet, the prosecution did not choose to examine Balreddy as witness before the trial Court. If Balreddy was examined by the prosecution, then he would be in a position to say whether the accused demanded any bribe for delivery of the previous demand draft for Rs.69,641/- to him. In my opinion, P.W-1 is totally incompetent to depose as to the circumstances in which previous demand draft for Rs.69,641/- was delivered by the accused to Balreddy and the alleged demand for bribe of Rs.7,000/- during that time. Even for the alleged delivery of the second demand draft for Rs.46,895/- covered by Ex.P-3 on the date of offence, P.W-1 is incompetent to receive the same either on behalf of Rungta Irrigation Limited or on behalf of Sai Shankar Enterprises. P.W-1 is not competent to pass any receipt for the receipt of Ex.P-3 demand draft. It is not the prosecution case that P.W-1 passed any hand written Kutcha receipt similar to Ex.D-1 at the time of the alleged handing over Ex.P-3 demand draft to P.W-1 by the accused. Since P.W-1 is not competent to pass any such receipt either representing Rungta Irrigation Limited or representing Sai Shankar Enterprises, the prosecution did not press any such receipt into service. Without passing any receipt similar to Ex.D- 1, the accused would not have handed over Ex.P-3 demand draft to P.W-1 and would not have allowed P.W-1 to go out of his house-cum-office with Ex.P-3 demand draft for Rs.46,895/-. Thus, the prosecution could not prove either the demand of bribe of Rs.7,000/- by the accused to P.W-1 at the time of delivery of demand draft for Rs.69,641/-, muchless at the time of delivery of second demand draft for Rs.46,895/- on the date of offence. 11) According to the accused, P.W-1 has got motive against him for involving the accused in a false trap. According to the defence version, Bazaz Irrigation System of which P.W-1 is the dealer erected drip irrigation mechanism in a faulty manner in lands belonging to some farmers and when the same was reported to the Department, the accused conducted enquiry and sent report against such faulty erection of the equipment and it made the accused to rectify the same by replacing 50 cm pipes in the place of already erected 40 cm pipes causing loss to the extent of Rs.25,000/- to Rs.30,000/-. Of course, P.W-1 denied such suggestions. Ex.D-4 is representation given by one Venkatayya Ex-Surpanch, Chenna Gondavelli of Siddipet Mandal complaining against faulty erection of drip irrigation pipes in the lands of farmers viz., Mazaramma, Phibaya Bai, Renuka, Bhaskar and himself. P.W-3 who is the senior assistant in Horticultural Department at Sangareddy deposed that on 05.07.1997 one of the beneficiaries by name Venkatesh Goud sent a complaint to them against dealer stating that he fixed sub- standard material and requested not to realise the subsidy amount. P.W-3 says that their office endorsed the said complaint to the accused for enquiry and that after conducting enquiry, the accused sent a report and that thereafter the dealer rectified the defects, when the subsidy was released. P.W-3 says that the dealer referred in Ex.D-4 complaint is P.W-1 himself. Thus, P.W-1 is aggrieved against the accused and has got motive to involve the accused in a false trap. 12) Thus, on evaluation of the prosecution evidence, this Court has no hesitation to find that the prosecution has failed to prove demand as well as acceptance of bribe of Rs.15,000/- on the part of the accused. The accused could validly rebut the presumption under Section 20 of the P.C.Act. The accused further pleaded that when Rungta Irrigation Limited requested him as per Ex.D-6 letter dated 23.10.1998 to collect the amount of Rs.45,000/- due from their dealer Balreddy, and when he conveyed the same to Balreddy, Balreddy sent the amount of Rs.15,000/- to the accused through P.W-1. P.W-5 who is the Regional manager of Rungta Irrigation Limited admits Ex.D-6 letter addressed by him to the accused. But the note contained in Ex.D-6 letter was not specifically either confronted to P.W-5 or denied by P.W-5 in his evidence. On a look at the note in Ex.D- 6, it appears to have been typed subsequently. In any event, apart from the suspicious note in Ex.D-6, there is evidence of P.W-5 in cross-examination to the effect that Ex.D-6 was addressed by them on 23.09.1998 informing the accused about Balreddy who is their dealer due Rs.45,000/- to them and about he promising to send the said amount to them. P.W-1 taking advantage of handing over the amount of Rs.15,000/- sent by Balreddy to the accused, played the trick and got the accused entangled in a false trap. On evaluation of the prosecution evidence, I do not agree with the finding of guilt recorded by the lower Court. 13) In the result, the appeal is allowed setting aside the convictions and the sentences passed by the lower Court against the accused/appellant and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J March 14, 2011 ksh [1] (2006)12 Supreme Court Cases 277 [2] AIR 2010 Supreme Court 1589