THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.467 of 2006 BETWEEEN: Peethala Janaki Rao,S/o. Bulliyya … Appellant/Accused AND 1. The State of A.P. rep. through Inspector … Respondent/Complainant HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.467 of 2006 JUDGMENT: The accused/appellant was working as Divisional Accounts Officer (Works) in the office of Executive Engineer, Roads and Buildings, Amalapuram in East Godavari District. He was convicted by the Special Judge for ACB cases, Visakhapatnam by judgment dated 21.03.2006 in CC.No.17 of 1999 for offence under Section 7 of the Prevention of Corruption Act (in short, the Act) and was sentenced to rigorous imprisonment for one year and to fine of Rs.500/-; and was convicted for offence under Section 13(2)/13(1)(d) of the Act and was sentenced to rigorous imprisonment for one year and to fine of Rs.1,000/-. 2. PW1 is the victim of corruption in this case. He was working as Electrical Wireman, Grade-2 in the office of Executive Engineer, Roads and Buildings, Amalapuram from the year 1975 to the year 1998. Subsequent to bifurcation of electricity wing of PWD from R&B wing, PW1 was transferred to Guntur in the year 1998. Thereafter since October 1998, the accused was working in the Office of Assistant Engineer, Electrical Wing, Kakinada. PW1 claimed a Special Grade Post/Special Promotion Scale in his representation Ex.P1, dated 21.01.1997 to the Superintending Engineer, PWD, Roads and Buildings, Kakinada through the Executive Engineer, PWD, Roads and Buildings, Amalapuram. The Superintending Engineer re-transmitted the same to the Executive Engineer, Amalapuram for taking necessary action at this end, as the Executive Engineer is competent to sanction the Special Promotion Scale. As Divisional Accounts Officer, the accused was in-charge of the establishment matters in the office of Executive Engineer, PWD, R&B, Amalapuram. It is alleged that on 03.11.1998, PW1 met the accused in his office and enquired about his application/representation and that the accused demanded bribe of Rs.500/- from PW1 for making favourable proposal to the Executive Engineer for grant of Special Promotion Scale. Since PW1 was reluctant to pay bribe to the accused, he met PW4 in the office of Anti Corruption Bureau, Kakinada. After receiving Ex.P6 report from PW1, PW4, who is Inspector, ACB Kakinada got prepared pre-trap proceedings covered by Ex.P16 on 23.11.1998 in the presence of mediators including PW3, who was then working as Senior Auditor in State Audit Department, Kakinada. It is alleged that on the same day, PW1 went into the room of the accused in his office and that when the accused demanded for payment, PW1 handed over tainted cash of MO5 consisting of Rs.500/- to the accused, who received the same with his left hand and counted the same with both hands and kept the same in his left side shirt front pocket. After coming out of office room of the accused, PW1 gave signal to the ACB officials who were at vantage points and they rushed into office room of the accused and recovered M.O.5 tainted cash from his shirt pocket. Fingers of both the hands of the accused dipped in Sodium Carbonate solution turned pink. Inner portion of shirt pocket of the accused also turned pink with the same test which was conducted on it. Thereupon, Ex.P23 post trap proceedings were prepared after recording explanation of the accused. It is the explanation of the accused during post trap proceedings that PW1 thrusted or stuffed his pocket with currency notes contained in M.O.5 even though he did not demand for the same and that he did not accept the said tainted cash. Acceptance of tainted cash M.O.5 by the accused with his hands is proved by not only Ex.P23 post trap proceedings, but also by PWs 3 & 4, who deposed to the fact of fingers of both the hands of the accused when dipped in Sodium Carbonate solution, turned pink. Therefore, at the outset, this Court does not intend to place any reliance on the spot explanation given by the accused during Ex.P23, Post trap proceedings to the effect that PW1 stuffed his pocket with M.O.5 tainted currency notes. 3. It is contended by the senior counsel appearing for the accused that PW1 was transferred from Amalapuram office in February, 1998 itself and that his service register as well as LPC (Last Pay Certificate) were sent to Guntur Electrical office immediately thereafter and therefore, the question of granting Special Promotion Scale to PW1 did not lie with the office of Executive Engineer, Amalapuram where the accused had been working. PW2 is working as Senior Assistant in the same office of the accused at Amalapuram. He says that the accused as Divisional Accounts Officer was looking after establishment work i.e. affairs relating to staff members, apart from other files. It is evidence of PW2 that PW1 submitted Ex.P1, application for special promotion scale. Ex.P1 is dated 21.01.1997. PW1 submitted the same to the Superintending Engineer, PWD, R&B Circle, Kakinada through the Executive Engineer, PWD, R&B, Amalapuram. The Superintending Engineer addressed Ex.P2 letter dated 24.12.1997 to the Executive Engineer, Amalapuram stating that the Executive Engineer is competent to promote PW1 to Special Grade as per G.O.Ms.No.107. Inspite of it, PW1 did not get any response from the office of Executive Engineer, Amalapuram. Therefore, PW1 submitted reminder applications Ex.P3 on 11.10.1998 and Ex.P4 on 26.10.1998. It is only thereafter PW1 is stated to have approached the accused for processing the said application of his for special promotion scale. PW1 deposed that when he approached the accused either in November or December 1998, the accused demanded bribe of Rs.500/- to process his application. The said demand was certainly not in December 1998 because the trap in this case was on 23.11.1998 itself. PW1 further says that as he was reluctant to meet the demand of the accused for bribe, he approached PW4 in November 1998 itself and gave Ex.P6 written report. In cross-examination, PW1 stated that 3 days after demand for bribe made by the accused, he met PW4 at Kakinada. It is contended that PW1 was reluctant to give date of demand of bribe by the accused in November 1998 and that three days prior to meeting of PW4 does not suit the date of demand mentioned in Ex.P6 as 03.11.1998. In cross- examination, PW1 stated that three days after demand of the accused for bribe, he went to PW4 and that one day prior to Ex.P6 report, he went to PW4’s office and that when he informed orally, PW4 asked him to come on the next day with written report. He denied the suggestion that Ex.P6 report was created in the office of the accused during trap proceedings. The above cross-examination of PW1 shows that even prior to giving of Ex.P6 report to PW4, PW1 went to office of PW4 three days after the demand for bribe made by the accused. I do not find any irreconcilability in the said portion of evidence of PW1 either with the date 03.11.1998 mentioned in Ex.P6 or that portion in his examination-in-chief. Though PW1 gave date of demand as 03.11.1998 in Ex.P6 report, by the time he was examined as PW1 in the lower Court, he was not able to give the date and therefore he gave the month of demand as November 1998. Therefore, this Court has no hesitation to conclude that there was demand for bribe of Rs.500/- by the accused to PW1 prior to the trap. 4. It is contended by the senior counsel appearing for the appellant that there was no official favour pending with the accused in as much as the accused was not the authority to grant Special Promotion Scale to PW1, but it was the Executive Engineer, who is competent to grant Special Promotion Scale to PW1 as per Ex.P2 communication of the Superintending Engineer. Even though the Executive Engineer is the competent authority to grant Special Promotion Scale, it was the accused, who has to process the application of PW1. PW2 deposed that he prepared Ex.P10 proposal note dated 21.11.1997 on the application of PW1 and sent SRs to the Superintending Engineer to give Special Grade posting to PW1. In cross-examination, he deposed that having satisfied with his Ex.P11 note, the accused put up note dated 17.01.1998 on the reverse of Ex.P11. It is contended that the accused already recommended and processed application of PW1 for granting Special Promotion Scale to him and therefore, it cannot be said that there was any official favour pending with the accused. But, inspite of PW2 and the accused endorsing on the reverse of Ex.P11 note recommending for grant of special promotion scale to PW1, the Executive Engineer wrote an objection on the reverse of Ex.P11 to the effect that since electricity section was separated in the year 1996, he called for explanation of the concerned staff for putting up the said note. PW2 says that they obtained copy of separation of electrical section from the office of the Superintending Engineer, as the said communication was not communicated to their office and that thereafter, he prepared Ex.P12 note dated 05.02.1998 surrendering PW1 to electricity wing. According to PW2, subsequent to sending of Ex.P13 letter from his office, there was nothing to be attended by their office. PW1 submitted Ex.P1 representation in the year 1997 itself when he was working in Amalapuram office for his Special Promotion Scale. Without disposing of the same in one way or the other, in or about February 1998, PW1 was sent away to electrical wing of the department at Guntur. Therefore, he had to submit Exs. P3 and P4 reminders to the Executive Engineer, Amalapuram for grant of Special Promotion Scale to him since, according to PW1, he became entitled to the Special Promotion Scale when he was working in the Executive Engineer’s office at Amalapuram. It is not as if Ex.P1 application of PW1 was sent by office of the accused to the electrical office at Guntur simultaneously with transfer of PW1 from Amalapuram to Guntur. Since his application Ex.P1 as well as reminders Exs.P3 & P4 were pending in Amalapuram office, PW1 had to approach the accused for official favour. Even though the accused made favourable note on the back of Ex.P11 on 17.01.1998 itself, it is not as if PW1 got the Special Promotion Scale sought for by him. For giving final disposal of his application Ex.P1 and reminders Ex.P3 & P4 which are pending in the office of Executive Engineer, Amalapuram where the accused was working, PW1 was going around that office for official favour. Therefore, it cannot be said that the accused was not capable of rendering any official favour to PW1 nor any official favour was pending with the accused. 5. Since this Court is not able to accept the spontaneous explanation offered by the accused during post trap proceedings, it follows that the accused accepted the tainted cash M.O.5 voluntarily and consciously. When it is proved that there was voluntary and conscious acceptance of money by the accused, it was held by the Supreme Court in B.Noha Vs. State of Kerala[1] that there is no further burden cast on the prosecution to prove the demand or motive by direct evidence and that it can be deduced from the said facts and circumstances. In the case on hand, apart from acceptance of M.O.5 tainted cash of Rs.500/- by the accused from PW1, PW1 could prove that there was demand by the accused for illegal gratification of bribe and that it was made with the motive of doing official favour by way of processing or recommending for grant of Special Promotion Scale to PW1. 6. Having regard to the above evidence on record, this Court has no hesitation to find that the lower Court has rightly came to the conclusion in favour of the prosecution. I do not find any valid or legal grounds to come to a different conclusion in this appeal. 7. In the result, the appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 15.02.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.467 of 2006 DATED: 15.02.2011 ysk [1] (2006) 12 Supreme Court Cases 277