* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. A. NO. 509 OF 2003 % 09-04-2010 # M. Jagadeeswar. ..… Appellant/Accused Vs. $ State ACB through the Inspector ofPolice, Hyderabad Range, Hyderabad. … Respondent/Complainant ! Counsel for the Appellant : Sri C. Praveen Kumar ^Counsel for the Respondent : Special Public Prosecutor for ACB <Gist : >Head Note: ?Cases Referred: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 509 of 2003 Date: 09.04.2010 Between: M. Jagadeeswar .. Appellant/Accused And State ACB through the Inspector of Police, Hyderabad Range, Hyderabad. .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 509 of 2003 Judgment: This appeal is directed against the judgment dated 24.04.2003 passed in C.C. No.18 of 2000 by the Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the appellant herein was convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the P.C. Act’), and sentenced to suffer R.I for one year and to pay a fine of Rs.1000/-, in default to suffer SI for three months for each of the offences and to run the substantive sentences concurrently. The appellant hereinafter will be referred to as the accused for the sake of convenience. The brief facts of the case are as follows. The accused was working as Sub-Engineer at Midjil section, APSEB Sub-Station, Mahabubnagar from 15.07.1998 to 09.11.1998, as such he is a public servant within the meaning of Section 2(c) of the P.C. Act. PW.1 K. Shyam Sunder Reddy is a resident of Mucherlapally village of Mahaboobnagar District. He started a poultry-farm in his village in the year 1998. He submitted an application on 23.10.1998 seeking electricity connection to his poultry-farm. He met the accused, who in turn handed over one printed proforma and asked him to fill up the same and give it to him along with certificates issued by the Sarpanch and also Veterinary Assistant Surgeon. Then PW.1 filled up the application form and paid Rs.50/- towards registration charges and obtained DD for Rs.2000/- in favour of the Deputy Engineer and another DD for Rs.300/- in favour of the Assistant Engineer, Kalvakurthy and presented the same to the accused. The accused asked PW.1 to keep the DDs with him only and meet him after ten days. Accordingly, on 03.11.1998 PW.1 met the accused. Then the accused demanded an amount of Rs.1,000/- towards bribe and when PW.1 stated that he was not having Rs.1,000/- the accused reduced the same to Rs.700/-. As PW.1 was not willing to pay the bribe amount, he approached the ACB officers on 05.11.1998 and presented a complaint in Ex.P1. PW.5 P. Ashok Kumar, who was working as DSP, ACB, Hyderabad Range during the relevant period, received Ex.P1 complaint from PW.1 and after making discrete enquiries into the allegations of the complaint, he registered a case in Crime No.7/ACB-HR/98 and issued FIR Ex.P14 on 06.11.1998. Then he secured the presence of PW.2 T. Seetharama Rao, Senior Assistant, and A. Damodar Reddy, Agricultural Officer from the office of the Commissioner of Directorate of Agriculture, Hyderabad and introduced PW.1 to those mediators on 06.11.1998. They verified the contents of the complaint with PW.1 and then PW.1 produced two DDs and also the bribe amount of Rs.700/- in Rs.100/- denominations. Then phenolphthalein powder was applied to those currency notes and they were kept in the shirt pocket of PW.1 after ensuring that nothing remained in the said pocket. Then phenolphthalein test was demonstrated and the significance of the same was explained. Then PW.2 was asked to accompany PW.1 and PW.1 was directed to give the tainted amount only on the demand made by the accused. PW.1 was also directed not to shake his hands with the accused before or after handing over the bribe amount. PW.2 was directed to give prearranged signal. All the proceedings were noted in the first mediator’s report Ex.P7. Then the trap party along with PW.1 proceeded to Midjil to the office of the accused. The jeep was parked at a distance of 200 yards from the office of the accused. Then PWs.1 and 2 went to the office of the accused by walk and the trap party followed them and took vantage position. Accused was sitting in his chair. PW.1 wished him and the accused asked PW.1 to sit in the chair and PW.2 sat in a different chair at some distance. Then PW.1 asked the accused to take the demand drafts and then the accused asked PW.1 whether he had brought the amount. Then PW.1 took out the tainted currency notes from his shirt pocket and gave them to the accused. The accused received it with his right hand and kept it in his shirt pocket. Then PW.2 went out. Then PW.1 handed over DDs to the accused and the accused kept those DDs in a table drawer. The accused told PW.1 that he would send the file without any delay. After PW.2 gave pre-arranged signal to the trap party, PW.5 and other trap party members rushed to the accused. Then PW.5 introduced himself to the accused and ascertained the identity of the accused. Then PW.5 asked PW.1 to wait outside the office of the accused and then he got prepared sodium carbonate solution in two separate glass tumblers and asked the accused to rinse his both hand fingers separately, and when he did so, both the solutions gave positive results. PW.5 asked the accused to produce the bribe amount. Then the accused removed the wad of currency notes from his left side shirt pocket and produced before him. The mediators verified the numbers of those currency notes and confirmed that they tallied with the numbers noted in the first mediator’s report. Then the currency notes MO.7 were seized. An amount of Rs.1050/- was also found with the accused and since the accused claimed that it is his personal amount, it was returned to him. The inner flap of the shirt pocket of the accused was also subjected to phenolphthalein test and the wash gave positive result. All the three resultant solutions were preserved separately duly sealed and labeled. The shirt of the accused was also seized and the samples of sodium carbonate powder were also preserved. On demand, the accused produced the DDs, ‘A’ Form submitted by PW.1 and also the certificates issued by the Sarpanch and Veterinary Assistant Surgeon. Those documents were seized. The accused, PW.1 and PW.2 were examined and their statements were incorporated in the mediators report. The rough sketch of the scene of offence was also drafted. PW.7, after obtaining sanction orders and completing investigation, filed charge sheet. PW.3 P. Narsa Reddy, who was working as Superintending Engineer (Operation), APCPDCL, Mahaboobnagar, during the relevant period, accorded sanction to prosecute the accused in Ex.P13 proceedings. PW.4 K. Dakshina Murthy was working as Additional Assistant Engineer, APCPDCL, Midjil. According to him, PW.1 came to their office on 23.10.1998 along with A-Form seeking power supply to his poultry-farm and that he initialed on it and endorsed the same to the accused for further process. Ex.P5 is the made up file. According to PW.4 he had sent the accused for surveying the poultry-farm after registering the Form. PW.4 further deposed that if the birds are more than 1,000 the tariff comes under industrial category and if the birds are 1,000 or less it comes under the commercial tariff. According to PW.4, on 04.11.1998 PW.1 complained against the accused stating that the accused was telling that the poultry-farm comes under the industrial category on the ground that there were more than 1,000 birds. Then PW.4 called the accused and enquired the same and he had instructed the accused to treat the tariff under category-II i.e., under commercial tariff-II. The evidence of PW.4 also reveals that if the meters are not available and if the consumer is willing to purchase the meter they will permit him and after the consumer purchases the meter they test it before installing the same in the premises. He further says that he does not know whether meters were available or not during that time. One Mohan Reddy was examined as DW.1 on behalf of the accused. DW.1 was working as Assistant Lineman in A.P. Transco Office, Midjil, during the relevant period. According to DW.1 he accompanied the accused to the poultry-farm of PW.1. He further deposed that the accused surveyed the poultry-farm and questioned PW.1 that he filed an application under category-II, whereas the birds were more and therefore the load would fall under category-III i.e., under industrial category. According to DW.1, on this issue there was verbal clash between the accused and PW.1. According to Dw.1, PW.1 threatened the accused and then he interfered and asked PW.1 to approach the superior officers. According to DW.1, on 04.11.1998 PW.1 complained to the Assistant Engineer and the Assistant Engineer called and instructed the accused to consider the application under category-II. According to DW.1, then PW.1 approached the accused and the accused told to PW.1 that he would accept the DD by treating it as category-II, and further informed that the meters were not available and that if PW.1 urgently needs the connection he can purchase the meter from the market. Then PW.1 requested the accused to secure the meter and that he would pay the amount. Then the accused informed PW.1 that the cost of the meter would be Rs.700/- to Rs.800/-. According to DW.1, on 06.11.1998, PW.1 accompanied by two persons came to the accused and asked about the meter. The prosecution, in order to prove its case, examined PWs.1 to 7 and got marked Exs.P1 to P.14 and MOs 1 to 8. On behalf of the accused DW.1 was examined and no documents were marked. The learned Special Judge believed the prosecution case and convicted the accused as stated supra. Sri C. Praveen Kumar, learned counsel for the appellant/accused, submitted that the evidence of PW.4 and DW.1 shows that PW.1 did not meet the accused at all on 03.11.1998 and that the evidence of PWs.4 and 5 shows that the accused could not show any official favour to PW.1, since the accused was not the competent authority to sanction new connection. It is also submitted that according to PW.4 immediately after the trap he enquired with the accused the purpose for accepting Rs.700/- and that the accused informed him that PW.1 paid the amount for the purchase of meter and that electricity connection cannot be given unless meter is purchased and that Ex.P9 shows that other connections were withheld. It is further argued that PW.1 admitted that he requested the accused to fix the meter and that the accused stated that it was not possible to give connection as meters were not available with the Government. The main contention of the learned counsel for the accused is that since the accused, after inspection of the poultry-farm, found that there were more than 1000 birds and further stated that the connection comes under category-I and not under category-II and on that score there was a quarrel between the accused and PW.1 and due to that PW.1 developed grudge against the accused and impleaded him in this false case. It is further submitted that meters were not available in the office and when PW.1 requested the accused to arrange meter, then the accused agreed and for the purpose of securing the meter PW.1 paid an amount of Rs.700/- towards cost of the meter but not as bribe amount. It is also argued that the very fact that the file of PW.1 was found among category-I files also supports the version of the accused. It is also submitted that the spot explanation given by the accused is not noted in the second mediator’s report and that PW.2 had deposed that he did not hear what was stated by the accused at the time of second mediator’s report. It is submitted that the version of the accused is also probable and the evidence of prosecution itself to some extent supports his version. Sri V. Ravi Kiran Rao, learned Special Public Prosecutor for ACB cases, submits that the plea of paying amount towards the cost of meter is nothing but an after thought introduced by the accused to escape from the liability. It is further submitted that the accused did not take this plea in post trap proceedings and rather he had acknowledged the acceptance of bribe amount in the post trap proceedings. It is also argued that the accused did not take any steps to summon the document from his office to show that the meters were not available at that time and the cost of the meter during that period. It is further argued that the inspection was not done before 03.11.1998 and PW.1 lodged complaint on 04.11.1998 and therefore there was no possibility of the accused inspecting the poultry-farm and saying that it require category-I connection. It is further argued that the accused was not authorized to purchase the meters from outside and to arrange the same to the parties and that the version of the accused is not probable. The only point that arises for consideration is whether the prosecution has proved its case beyond all reasonable doubt and that the version of the accused is probable. It is not in dispute that PW.1 submitted an application seeking electricity connection to his poultry-farm and Ex.P5 file contains the application form submitted by PW.1, which is dated 23.10.1998. PW.1 sought electricity connection under category-II for his poultry- farm. Admittedly, the number of birds is not mentioned in the said application form. The certificate issued by the Veterinary Assistant as available in Ex.P5 shows that the poultry-farm shed is capable of keeping 1,000 birds. Admittedly DD for Rs.50/- was obtained on 23.10.1998 and another DD for Rs.2,000/- was also obtained in favour of Deputy Engineer on 23.10.1998. According to PW.1, when he wanted to handover the DDs, the accused returned the same to him asking to meet him after ten days and to keep the DDs with him (PW.1) till them. PW.1 says that, accordingly, he met the accused on 03.11.1998 and on that date the accused demanded the bribe of Rs.1,000/-. His further case is that since he pleaded with the accused that he was not in a position to pay Rs.1000/-, the accused reduced the amount to Rs.700/-. His version is that since he was not willing to pay the bribe amount, he approached the ACB officials on 05.11.1998 and orally complained to the DSP, ACB, Hyderabad. Subsequently, a trap was successfully arranged and admittedly the accused received Rs.700/- i.e., seven Rs.100/- denomination currency notes, which were tainted with phenolphthalein powder. According to the accused, Rs.700/- received by him from PW.1 was towards the cost of the meter and not the bribe amount. The suggestions given to PW.1 and the evidence of DW.1, who is working as a Lineman, go to show that a quarrel ensued between the accused and PW.1, when the accused, after inspecting the poultry-farm, opined that the poultry-farm comes under category-III i.e., for industrial purpose and since more than 1,000 birds were noticed by the accused in the said poultry-farm. According to DW.1, on 04.11.1998, PW.1 approached the Assistant Engineer and complained against the accused and that the Assistant Engineer instructed the accused to treat the connection under category-II as claimed by PW.1. According to him, the cost of the meter was about Rs.700/- to Rs.800/- during the relevant period. The evidence of PW.4 K. Dakshina Murthy, who was working as Additional Assistant Engineer, APCPDCL, Midjil, during the relevant period, reveals that if there are 1,000 birds then it comes under commercial tariff, but if the birds are more than 1,000 the tariff comes under industrial category. He says that he had directed the accused to inspect the poultry-farm and to report. He further deposed that on 04.11.1998 PW.1 came to his office and gave a complaint against the accused stating that the accused was telling that the poultry-farm comes under industrial category and that there were more than 1,000 birds. According to PW.4, then he called the accused and enquired with him and instructed the accused to treat the electricity connection to the poultry-farm of PW.1 under category-II. He further deposed that if the meters are not available and if the consumer is willing to purchase the meter they will permit him to purchase the meter from outside and then they will test it before installing the same in the premises. He says that he does not know whether meters were available or not during the relevant period. The evidence of PW.4 probablise the version of DW.1. According to DW.1, he accompanied the accused on 03.11.1998 and when the accused opined that the connection to the poultry-farm does not come under category-II, but it comes under industrial category, quarrel ensued between PW.1 and the accused and that PW.1 threatened the accused. There are some other circumstances in favour of the accused. The first circumstance is that during the post trap proceedings as seen from the contents of Ex.P11 second mediator’s report and Ex.P5 file reveal that the accused picked up the application for supply of electricity, vide registration No.27256, dated 23.10.1998 of PW.1 from ‘A’ Form File Category-I and produced along with its enclosures in original. The evidence of PW.4 also supports the version of the accused. According to PW.4, on 04.11.1998, PW.1 came to his office and complained against the accused stating that the accused was telling that the poultry-farm comes under industrial category on the ground that there were more than 1,000 birds in poultry-farm. Then, he called the accused and enquired with him and instructed the accused to take the tariff under category-II. Thus, the evidence of PW.4 makes it clear that there was some dispute between the accused and PW.1 with regard to the issue of determining whether the poultry-farm connection comes under category-I or under category-II (since there is some contradiction in referring the industrial category as category-I or category-III, therefore, hereinafter it will be referred as only industrial category but not as category-I or category-III). Thus, according to PW.4, PW.1 lodged a complaint against the accused alleging that the accused was saying that the poultry-farm has to be given connection under industrial category. According to the learned counsel for the accused, the accused at the time of post trap proceedings had categorically stated that the amount of Rs.700/- received by him was towards the cost of the meter. According to PW.2, he did not hear what was stated by the accused during post trap proceedings. However, the evidence of PW.2 is neither contradicting nor demolishing the version of the accused that he gave statement during the post trap proceedings. Admittedly, the present version of the accused is not noted in the post trap proceedings (second mediator’s report) Ex.P11. The other important circumstance is the evidence of PW.5 who arranged the trap. According to PW.5, he did not personally visit the poultry-farm and even the persons deputed by him to inspect the poultry-farm did not count the number of birds. Another important circumstance in this case is that PW.1 himself admitted that when he requested the accused to fix the meter at his poultry- farm immediately the accused stated that it is not possible to give connection as meters were not available with the Government. Thus, even according to PW.1, the accused informed him that the meters were not available. The evidence of PW.4 shows that if the meters were not available the consumers were permitted to purchase the meters from outside. His further case is that if the meters are purchased from outside they will be tested and then fixed to the premises of the consumers. Of course, there is no documentary evidence to show what was the cost of the meter during the relevant period. But, the evidence of DW.1 shows that the cost of the meter was ranging from Rs.700/- to Rs.800/- during the relevant period. The contention of PW.1 is that the accused demanded bribe of Rs.1000/- and subsequently reduced the same to Rs.700/-. According to PW.1 the said demand was made on 03.11.1998, but according to PW.1, PW.1 met him on 04.11.1998 and complained against the accused that the accused was saying that the connection comes under industrial category, as there were more than 1000 birds. It has to be seen that PW.4 is not cross- examined on this issue. According to DW.1 he along with the accused visited the poultry-farm on 03.11.1998 and on the next day PW.1 complained against the accused to PW.4. PW.1 admitted that except his oral evidence, there is nothing on record to show that he met the accused on 03.11.1998 and that the accused demanded bribe of Rs.1000/-. According to PW.1, the accused did not accept the application on 03.11.1998 and he did not inform any other superior officers. Thus, except the oral evidence of PW.1 and the contents of Ex.P1 complaint there is nothing on record to show that the accused demanded bribe of Rs.1000/- on 03.11.1998. Moreover the evidence of PW.4 demolishes the prosecution case on this issue. If at all the accused had demanded bribe amount on 03.11.1998 the question of PW.4 advising the accused to give connection under commercial category-II does not arise. According to PW.4, PW.1 never complained him against the accused that the accused was demanding the bribe amount. The possibility of the accused visiting the poultry-farm on 03.11.1998 and the further possibility of the accused finding more than 1000 birds and saying that the poultry-farm has to be given connection under industrial category cannot be ruled out. According to PW.4, PW.1 orally complained against the accused stating that the accused was telling that there were more than 1000 birds and the connection has to be given under industrial category. The evidence of prosecution witnesses probablise the case of the accused that there was a dispute between PW.1 and the accused with regard to category of connection to be given to the poultry-farm of PW.1. Admittedly, the accused informed PW.1 that the meters were not available. Perhaps after PW.4 directed the accused to treat the connection under commercial category-II, PW.1 seems to have met the accused and insisted for giving connection and then the accused seems to have informed that the meters were not available and it is the admitted case of PW.1. If that is so, the possibility of PW.1 requesting the accused to arrange for meter and offering Rs.700/- towards cost of the meter also cannot be ruled out. It is also probable that keeping the stand of the accused that the poultry-farm comes under industrial category, PW.1 might have developed grudge against the accused. Thus, the possibility of PW.1 implicating the accused falsely in this case cannot be totally ruled out. Corruption is the root cause of 90% of the evils in the society. Because of corrupt practices spurious medicines (said to be more than 50% of the medicines sold in open market) injurious to health are being sold in market. It is due to the corrupt menace the estimates in Government contract works are escalated, and cost of actual construction is reduced resulting in collapse of bridges, buildings, even projects. It is because of the corrupt practices meritorious candidates not being selected and in their place incompetent, corrupt fellows are being appointed. Because of the corrupt practices may be rarely but sometimes justice is being sold. Therefore, all patriot honest persons have to fight against the corruption. But, at the same time no innocent person should be blamed and harassed. It is our experience that some times the officers, who are strict and who do not yield to the pressure of others and who are not corrupt, face problems from unscrupulous persons. When the officer is honest and he says that there were more than