THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.651 of 2004 Date: 26th April, 2011 Between: State: A.C.B. rep. By Inspector of Police … Appellant A n d V. Rajaiah … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.651 of 2004 JUDGMENT: This is an appeal against acquittal. The Additional Special Judge for SPE and ACB Cases, Hyderabad, by Judgment dated 24.07.2003 in C.C.No.9 of 1998, acquitted the accused/respondent of the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, “the Act”). The accused was working as Assistant Labour Officer, Bhongir, Nalgonda District. The defacto complainant/P.W.2 was working as Manager(Personnel) in M/s Premier Explosives Private Company Limited and M/s Godavari Explosives Private Company Limited. On 11.07.1997, the accused inspected the said company’s premises and sent notice dated 16.07.1997 alleging contravention of the provisions of the Minimum Wages Act in respect of the employees working in those companies by the management. Cases were filed before the Assistant Commissioner of Labour, Nalgonda against management of the said companies for the said violations. P.W.1 was attending the said cases on behalf of those companies. It is alleged that on 13.10.1997 when P.W.1 attended the adjournment of the cases, the accused demanded Rs.4,000/- as illegal gratification for not further harassing and booking cases against those companies in future and promising to see that the pending cases end in favour of those companies, and that the said demand was reiterated by the accused on 18.10.1997 when P.W.1 approached the accused in his office and that the accused threatened P.W.1 with dire consequences by booking further cases against the companies and that after bargain the accused reduced the demand to Rs.2,200/- and directed P.W.1 to bring the bribe amount to his office on 22.10.1997. In the meanwhile, P.W.1 approached Anti Corruption Bureau (ACB) and gave Ex.P2-Report to the Deputy Superintendent of Police, ACB, Hyderabad Range (PW.8). It is further alleged that on 22.10.1997, at about 11.00 a.m., PW.2 along with PW.1 went to office of the accused and that when the accused demanded, PW.2 paid tainted currency of Rs.2,200/- to the accused. Plea of the accused is one of total denial. After trial, the lower Court found the accused not guilty of the charges. During trial in the lower Court, PW.2 turned hostile to the prosecution. In view of PW.2 turning hostile to the prosecution, there is no evidence of the alleged demand for bribe said to have been made on 13.10.1997 and 18.10.1997. Contents of Ex.P2- Report have no evidentionary value because Ex.P2-Report is not a substantive piece of evidence. Similarly, Ex.P1-Statement of PW.2 recorded by the Magistrate (PW.7) under Section 164 Cr.P.C is also not a substantive piece of evidence and it can be used only for the purpose of contradicting maker of the said statement. At the time of the alleged trap, PW.1 accompanied PW.2. But PW.1 was not an accompanying witness for PW.2 either on 13.10.1997 or on 18.10.1997. PW.2 deposed that his Managing Director by name Kannan became furious after receiving notices from the accused specifying contraventions of the Minimum Wages Act in the companies and directed PW.2 to give report against the accused to ACB in order to teach a lesson to the accused. PW.2 says that when he approached PW.8 on such directions of his Managing Director, he prepared Ex.P2 to the dictation of PW.8. According to PW.2, on the coercion of ACB officials, he gave Ex.P1-Statement to the Magistrate under Section 164 Cr.P.C. Thus, PW.2 gives a total gobye to his version in Ex.P2-Complaint and Ex.P1-Statement. Even with regard to the trap, it is evidence of PW.2 that on 22.10.1997, he went to the office of the accused, met the accused, shook hands with him and thereafter the accused left his seat and went for toilet, when he kept MO.3-tainted Cash of Rs.2,200/- on his table in the midst of papers during absence of the accused. It is evidence of PW.5 who is the mediator and PW.8 who is the trap laying officer that they rushed to the accused after receiving pre-arranged signal from PW.1 and that right hand rinse of the accused in Sodium Carbonate Solution turned pink and that when PW.8 questioned about the bribe amount, the accused picked out MO.3-Cash from the midst of papers on his table and handed over the same to PW.8. Ex.P13-post trap proceedings were prepared incorporating the said facts. It is stated in Ex.P13 as well as stated by PWs.5 and 8 that when PW.8 questioned the accused at the spot, the accused was silent for a while and thereafter stated that PW.2 kept the amount on his office table without any demand. Even in the spontaneous explanation given by the accused, he did not admit having received MO.3-tainted cash from PW.2 much less the accused demanding for the same. PW.1 is the Deputy Manager (Personnel) in the same companies working along with PW.2. By the time of trial in the lower Court, PW.2 was not working in the same companies, whereas PW.1 was continuing to work in the same companies. It is evidence of PW.1 that he and PW.2 went to the office of the accused and found the accused in his seat and that the accused enquired PW.2 as to whether he brought the money and that PW.2 stated that he brought the money and picked it up from his right pant pocket and gave the same to the accused who received it with his right hand and kept it on his table and covered it with office papers. PW.1 in cross-examination stated that after PW.2 resigned from job, he (PW.1) was promoted as Personnel Manager in the place of PW.2. According to evidence of PW.2 at one stage, PW.1 did not accompany him to the accused, but PW.1 remained outside of that office. The trial Court did not place reliance on evidence of PW.1 on the ground that PW.1 was still working in the same companies whose management bore grudge against the accused. It is contended by the senior counsel appearing for the respondent-accused that management of the above companies bore grudge against the accused because the accused inspected those companies and served inspection notices making the companies to pay huge amount towards contraventions under the Minimum Wages Act. By the date of the alleged demands and trap, there was no official favour pending with the accused. Work of the accused in respect of the cases under the Minimum Wages Act was over and the cases were already instituted before the Assistant Commissioner of Labour, Nalgonda. PW.3 is the then Assistant Commissioner of Labour, Nalgonda. He admits in his cross-examination that due to the inspection and detection by the accused, the company was obliged to pay Rs.58,000/- and odd towards difference in Minimum Wages to its employees. Therefore, management of the companies had motive against the accused for giving Ex.P2-Report. PW.3 further stated in his cross-examination that in both the cases filed before him, both the companies had admitted the cases filed by the accused and remitted the amounts. In the light of existence of the said motive for the companies against the accused, evidence of PW.1 has to be evaluated. PW.2 who is the defacto complainant and who gave Ex.P2-Report to ACB turned hostile to the prosecution and states that he gave Ex.P2-Report on the directions of his Managing Director by name Kannan who became angry against the accused for making inspection and giving inspection notices pointing out violations under the Minimum Wages Act. But PW.1 who was still continuing in service of the same companies supported the prosecution case. In those circumstances, the lower Court rightly did not place any reliance on the evidence of PW.1 in this case. From the prosecution evidence let in before the trial Court, it is evident that there is no proof of any demands made by the accused for bribe and that there is no proof of the official favour either pending with the accused or to be extended by the accused in future to PW.2 and his companies. I n BANARASI DASS v. STATE OF HARYANA[1], the Supreme Court after referring to several cases laid on the subject, held as follows:- 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. In the absence of proof of any demand and acceptance of bribe or illegal gratification by the accused, the question of finding the accused guilty of the offences may not arise, even with the aid of the presumption under Section 20 of the Act. The lower Court came to the conclusion that right hand rinse of the accused in Sodium Carbonate solution turned pink because the accused came into contact with PW.2’s right hand by way of shaking hands previously. There is possibility of PW.2 transmitting Phenolphthalein powder to right hand of the accused because of the said previous shaking of hands. The tainted amount MO.3 was not recovered from the person of the accused, but was lying on the table of the accused. It is contended by the Special Public Prosecutor that when the amount was in the midst of papers, it is not known how the accused was able to locate the same when PW.8 questioned him about the bribe. Apart from the said evidence of the prosecution, there is evidence of DWs.1 and 2 in this case. DW.1 is President of Powerloom Owners’ Association, Bhongir. DW.2 is an attender working in the same office of the accused. It is their evidence that when the accused went out for toilet, PW.2 kept MO.3-cash on the table of the accused. In the absence of proof of demand and in the absence of proof of the accused receiving the tainted cash MO.3 voluntarily and consciously, the lower Court is justified both on facts as well as in law in finding the accused not guilty of the charges. There is no circumstance in this appeal to come to a different conclusion. Accordingly, the appeal is dismissed. ___________________________________ SAMUDRALA GOVINDARAJULU, J 26th April, 2011 KSM [1] AIR 2010 Supreme Court 1589