IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.442 of 2004 DATE: 21.04.2011 Between: R.Tulasidas (died) represented by his Sister R.Prema Kumari, L.R of deceased …… Appellant And State represented by P.P, ACB, High Court ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.442 of 2004 JUDGMENT : The original appellant/accused was working as Mandal Educational Officer at Bhamini Mandal of Srikakulam District. After filing of this appeal, the appellant died and his sister is pursuing this appeal after getting herself impleaded in this appeal. P.W-1 who is the defacto-complainant was working as single teacher in Mandal Praja Parishad Primary School, Neradi Barrage and he was deputed to work in Mandal Parishad School at Loharijola. P.W-1 was one of the office bearers of Panchayat Raj Teachers Association in the district. He desired to have his deputation cancelled. It is alleged that on 29.01.1994 when P.W-1 met the accused, the accused made it clear that any number of applications from P.W-1 to get himself relieved from deputation will be of no use unless the accused recommends his matter to the District Development Officer, Srikakulam, and that the accused asked P.W-1 to submit fresh application for cancellation of deputation and that accordingly P.W-1 gave another application to the accused on that day and that the accused asked P.W-1 to meet him at his house after 10 days, and that on 09.02.1994 when P.W-1 met the accused at his house, the accused demanded Rs.400/- from P.W-1 for getting his work done. Thereupon P.W-1 met P.W-6 who is the Inspector of Police, A.C.B, Srikakulam and gave Ex.P-1 report. On 13.02.1994 it is alleged that P.W-5 who is the Deputy Superintendent of Police, A.C.B, Vijayanagaram arranged trap for the accused and he was successfully trapped when P.W-1 paid the demanded amount of Rs.400/- to the accused at his house. Plea of the accused is one of not guilty. During trial in the lower Court, P.Ws 1 to 6 were examined and Exs.P-1 to P-15 and M.Os 1 to 8 were marked on behalf of the prosecution; and D.Ws 1 and 2 were examined and Ex.D-1 was marked on behalf of the accused. After considering the material on record, the lower Court recorded that the accused is guilty of the above said offences. 2) Sheet anchor of the appellant’s case is that the accused is not the authority to cancel deputation of P.W-1 and that even long prior to 29.01.2004 P.W-3 passed orders cancelling deputation of P.W-1 and that therefore there was no official favour pending with the accused by the dates of alleged demands and acceptance of illegal gratification of Rs.400/-. It is evidence of P.W-1 that on 29.01.1994 he went to Mandal Praja Parishad office of Bhamini to enquire about his pay fixation with the accused and that he enquired the accused about it and that the accused informed him that any number of applications for cancellation of his deputation will be of no use unless he recommends for it. Admittedly by 29.01.1994, no cancellation order of deputation of P.W-1 was received by P.W-1. P.W-1 further says that the accused asked him to give fresh application in that regard. Accordingly P.W-1 gave Ex.P-3 fresh application dated 29.01.1994 addressed to the Mandal Development Officer, Bhamini through the accused. P.W-1 says that the accused received the said application and initialled thereon and asked him to meet him at his residence after 10 days at Palakonda and that on 09.02.1994 at 7.00 P.M he went to house of the accused at Palakonda and that the accused informed him about he recommending for cancellation of deputation and about he going to receive orders soon and that the accused asked him to pay Rs.400/- as bribe for the said recommendation made by him and to see that the deputation cancellation are received soon. P.W-1 says that he refused to pay the said amount and that thereupon, the accused threatened him with future trouble to him in case bribe amount is not paid and that though he was not willing to pay the bribe, he agreed to give the same. 3) P.W-3 is the then District Development Officer, Zilla Parishad, Srikakulam. It is his evidence that he issued proceedings bearing R.C. No.25412/93/E1, dated 12.01.1994 cancelling the deputation of P.W-1 to Loharijola and reposting him to Neradi Barrage school and that the Mandal Development Officer concerned was directed to take necessary steps for implementing the said orders. Even though P.W-3 passed the order on 12.01.1994, till the date of trap on 13.02.1994, the Mandal Development Officer did not implement the said order and did not pass consequential order and did not serve the same on P.W-1. It is contended by the appellant’s counsel that since P.W-1 was one of the office bearers of the Panchayat Raj Teacher’s association/union, he would have known about Ex.P- 5(a) proceedings of P.W-3. There is absolutely no indication in the entire record to show that P.W-1 had any knowledge of Ex.P- 5(a) proceedings by the date of trap. According to P.W-1, he received cancellation of his deputation subsequent to the date of trap. Even though P.W-3 issued the relevant proceedings on 12.01.1994, for one month upto 12.02.1994 the said orders of P.W-3 were not implemented by the Mandal Development Office. The accused was Mandal Educational Officer in that office. He was the superior officer for P.W-1. According to P.W- 1, the accused demanded Rs.400/- as bribe for (a) the recommendation already made by him, (b) for getting cancellation order expeditiously and (c) for avoiding any future troubles. Until the Mandal Development Officer implements the orders of the District Development Officer and passes the consequential orders by way of implementation, purpose of P.W- 1 would not be served. In those circumstances, it cannot be said that there was no official favour pending with the accused. Not only for receiving the orders in expeditious manner but also avoiding future troubles, the demand for bribe of Rs.400/- was made by the accused from P.W-1. 4) With regard to the trap, there is evidence of P.Ws 1, 4 and 5 and Ex.P-12 post trap proceedings. Ex.P-10 contains pre- trap proceedings. It is evidence of P.W-1 that on 13.02.1994 he along with the trap party reached Palakonda and that P.W-5 asked him and the Sub-Inspector by name Baburao to proceed and that he and Baburao proceeded towards house of the accused and that after following him, Baburao stopped at a distance and that he alone went ahead to the house of the accused. There was no accompanying witness for P.W-1 at the time of handing over of tainted cash of Rs.400/- (M.O-5) to the accused. P.W-1 says that the accused was sitting in front of his house and asked him to come inside and that after some discussion, the accused stated that the Mandal Development Officer approved note orders on his application for cancellation of deputation and proceedings would be issued within few days; and that he asked the accused to see that orders are issued soon, and that the accused enquired whether he brought the demanded bribe amount of Rs.400/- and asked him to give the said amount to him and that thereupon he took out M.O-5 cash from his left side shirt pocket with his right hand and handed over the same to the accused who took it with his right hand and verified the same and kept the same in his left side shirt pocket. Subsequently P.W-1 came out of house of the accused and gave pre-arranged signal to Baburao by combing his hair with his comb when the raid party including P.Ws 4 and 5 rushed there and recovered M.O-5 cash from the accused. As per evidence of P.Ws 4 and 5 and also as per contents of Ex.P-12 post trap proceedings, it is spontaneous explanation of the accused that he received Rs.400/- from P.W-1 towards hand loan amount which P.W-1 borrowed from him earlier. During post trap proceedings itself, P.W-1 denied he having obtained any hand loan from the accused. The accused did not stick to the said version during trial in the lower Court. The accused did not lead any evidence to show that he lent any amount to P.W-1 previously. According to the accused, his version was not correctly incorporated in Ex.P-12 post-trap proceedings. It is the defence version in the lower Court that when P.W-1 tried to give the said amount of Rs.400/- voluntarily and tried to thrust the same into his pocket, he tried to resist the same and pushed the amount with his hands and the amount fell on teepoy and that P.W-5 collected the said amount from the teepoy and not from his shirt pocket. This stand of the accused during trial in the lower Court is inconsistent with the stand taken by the accused spontaneously after the trap party raided his house and seized M.o-5 tainted cash from him. Both hand rinses and lining of shirt pocket of the accused in sodium carbonate solution turned pink. According to P.Ws 4 and 5, the tainted cash M.O-5 was seized by P.W-5 from shirt pocket of the accused. The inconsistent and baseless explanation of the accused for M.O-5 with him, was rightly disbelieved by the lower Court. The evidence of P.W-1 coupled with post-trap proceedings Ex.p-12 proved that the accused demanded bribe of Rs.400/- from P.W-1 for doing official favour of expediting receipt of deputation cancellation order and for not troubling him in future. 5) It is contended by the appellant’s counsel that D.Ws 1 and 2 who are residents of Loharijola speak about irregular attendance of P.W-1 to the school and about inspections of the school made by the accused in the absence of P.W-1 and that therefore P.W-1 bore grudge against the accused and involved him in a false trap. In spite of the evidence of D.Ws 1 and 2 on P.W-1’s irregularity in attending the school, one cannot jump to the conclusion that P.W-1 arranged a false trap for the accused. Ex.P-3 application given by P.W-1 to the accused on 29.011994 was seized by P.W-5 from the box of the accused in his office. The above discussion of evidence of P.Ws 1, 4 and 5 and Ex.P- 12 discloses that the trap was true and that the accused demanded and accepted bribe of Rs.400/- from P.W-1. 6) It is contended by the appellant’s counsel that by the time of trial in the lower Court, there was no liquid fund in M.O-6 bottle. M.O-6 relates to sodium carbonate solution in pink colour after rinsing shirt pocket of the accused. It contained labels with numbers and signatures of the investigating officer and the mediators. It is not for the prosecution to explain absence of liquid in M.O-6 at the time of trial because the said bottle had been in custody of the lower Court at least since the year 1995 when the charge sheet was filed in the lower Court. In any event, even from the stand taken by the accused not only in Ex.P-12 post trap proceedings but also during trial in the lower Court, there is no dispute about tainted cash M.O-5 touching inner lining of shirt pocket of the accused. 7) Therefore, for all the above reasons, I do not find any valid or legal reasons to come to a different conclusion from that of the lower Court in this appeal. 8) Hence, the Criminal Appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J April 21, 2011 ksh