THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.949 of 2004 BETWEEEN: S.Vardha Raju … Appellant AND State- rep. by A.C.B. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.949 of 2004 JUDGMENT: The appellant/accused was working as Senior Assistant in the office of Chief Rationing Officer, Hyderabad. The Principal Special Judge for SPE and ACB cases, Hyderabad by judgment dated 06.04.2004 in CC.No.10 of 1994 convicted the appellant for the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced him to rigorous imprisonment for one year and fine of Rs.100/- on each count separately. 2. PW1 was fair price shop dealer in shop No.683 of Amberpet, Hyderabad. His dealership was cancelled by the authorities for certain irregularities in running the said shop. Ultimately, this High Court in W.P.No.12483/1992 set-aside cancellation of dealership of PW1 and directed the authorities to restore his dealership on an application to be filed by PW1. Order of the High Court in Writ Petition is dated 06.04.1993. Accordingly, PW1 put in an application to the District Supply Officer (DSO) for restoration of his dealership. It is alleged that when no further steps were taken on his application, PW1 approached DSO, who informed him about the file being not put up by the concerned to him for passing orders and that on 18.05.1993, when PW1 approached the accused in this regard, the accused demanded Rs.500/- as illegal gratification for doing official favour of putting the file before DSO and that when PW1 expressed his inability to pay such huge amount, the accused reduced the bribe from Rs.500/- to Rs.300/-. Thereupon, PW1 gave Ex.P1 report dated 24.05.1993 to the Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Hyderabad. PW7, who is the Deputy Superintendent of Police, ACB, arranged trap for the accused on the same day in the presence of mediators including PWs 2 and 3. Ex.P3, pre-trap proceedings were prepared prior to the trap. It is alleged that the trap was successful and the accused was caught red-handed with the tainted amount of Rs.300/- covered by MO.6. Plea of the accused is one of total denial. After trial, the lower Court found the accused guilty of the charges. 3. It is contended by the appellant’s counsel that the de facto complainant/PW1 turned hostile to the prosecution totally and that in those circumstances, the lower Court should not have taken a stray piece of evidence of PW2 to convict the accused in the absence of proof of demand and acceptance of bribe. Placing reliance on Banarsi Dass Vs. State of Haryana[1] and V.Venkata Subbarao Vs. State[2] of the supreme Court, it is further contended by the appellant’s counsel that in the absence of proof of either demand or acceptance of the bribe by the accused, the question of drawing presumption under Section 20 of the Act may not arise. On the other hand, it is contended by the Special Public Prosecutor that PW2 was accompanying witness in this case and that PW2 spoke to the accused receiving the bribe amount of Rs.300/- from PW1 and that therefore, the lower Court is justified in finding the accused guilty basing on evidence of PW2. 4. Though Ex.P1 report reads that the accused demanded for Rs.500/- as bribe for putting up the file to DSO for issuing restoration of dealership and the bribe was subsequently reduced to Rs.300/- after bargain, PW1 did not substantiate the same in his evidence before the trial Curt. It is evidence of PW1 that DSO told him that after receipt of the file, he will renew the licence, and that two or three days later, when he approached him, he informed that he did not receive the file and the file was with the concerned clerk. The accused was the concerned clerk. PW1 says that when he approached the accused two or three days thereafter, the accused was postponing the matter on some pretext or the other. It is categorical evidence of PW1 that some dealers who were present in the office told him that the accused will not do work unless bribe is paid to him and that on 18.05.1993, when he approached the accused, he informed him about he not placing the file before the officer and that therefore, he approached ACB office on 24.05.1993 and informed the Deputy Superintendent of Police as to what happened and that he was asked to give a report and that he gave a written report to him. PW1 says that at the instance of ACB, he mentioned in the complaint that the accused asked him to give bribe of Rs.500/- and he agreed to give Rs.300/-. Though PW1 admits giving Ex.P1 report to ACB, he says that he wrote contents therein at the instance of ACB officials. PW1 did not speak to the accused demanding bribe of Rs.500/- for doing official favour of putting up the file before the DSO much less about his bargain with the accused when the demand for bribe was reduced to Rs.300/-. With regard to the trap, PW1 deposed that they reached office of the accused by 3:15 PM and that the accused was not in his office. He says that he found table drawer of the accused in open condition and that he kept the currency notes in the table drawer and that within ten or fifteen minutes, the accused came there and that when he asked the accused about the order, the accused gave order copy to him. Thus, the accused did not even speak to payment of MO.6 bribe amount to the accused and about the accused receiving the same or accepting the same from PW1. According to PW1, he kept MO.6 cash in open table drawer of the accused during absence of the accused at his seat. PW1’s evidence is totally not useful to the prosecution in order to prove either demand or acceptance of bribe by the accused from PW1. 5. PW2 is one of the mediators in this case. He was working as Junior Assistant in the office of District Registrar, Hyderabad. His services were requisitioned by ACB officials and he was employed to go along with PW1 to office of the accused as accompanying witness. PW1 in his cross- examination deposed that the accompanying witness was at a distance of 2 meters from him when he was with the accused. He admits that in the statement given by him to the Magistrate under Section 164 Cr.P.C., he stated that the accompanying witness stood at the door when he went to seat of the accused. PW1 further deposed in examination- in- Chief itself that after giving order copy to him, he told the accused that he kept Rs.300/- in his table drawer and that the accused informed him about he getting promotion and that PW1 shook hands with the accused. He says that the mediator was standing at the window at some distance. In cross-examination, he deposed that he does not remember whether he stated before the Magistrate about he informing the accused about placing of the amount in the table drawer. PW1 further deposed that he stated before the Magistrate that he shook hands with the accused before leaving the accused. He further admitted that he stated before the Magistrate that he informed the Deputy Superintendent of Police, ACB that the accused did not ask money from him and he was advised only by the ration shop dealers present in the office. 6. On the other hand, PW2 deposed that he was in the corridor and was watching PW1 and that PW1 went to seat of the accused and spoke to the accused and that he could not hear their conversation and that PW1 gave tainted currency notes to the accused and that PW1 came out and gave pre- arranged signal to ACB officials. He says that when PW7 questioned the accused, the accused opened his table drawer and they found currency notes in the table drawer. PW3, who is the other mediator and who was working as Assistant District Registrar in the office of the District Registrar, Hyderabad also deposed that when PW7 asked the accused about bribe amount received by him, he opened right side table drawer and picked up currency notes. It was stated so in Ex.P4 post-trap proceedings, and PW7 reiterated the same in his evidence. It is contended by the appellant’s counsel that mere recovery of tainted cash from or at the instance of the accused will not attract liability under Section 7 or Section 13(2) of the Act. In this case, apart from the recovery of tainted cash from the drawer of the accused, there is evidence of PW2 to the effect that he saw the accused paying tainted cash to the accused. But, PW1 himself does not subscribe to the said version. According to him, he kept the tainted cash MO.6 in open table drawer of the accused during absence of the accused at his seat. If really PW2 was employed as accompanying witness to PW1, then PW2 should have been along with PW1 when PW1 approached the accused during the course of trap. Instead, PW2 was at the entrance or window in the corridor of that office. It only shows that PW2 was not really functioning as accompanying witness to PW1 and that he was at a vantage position to receive signal from PW1. PW2 did not hear the conversation between the accused and PW1 before PW1 allegedly passing on the tainted cash to the accused. PW2’s evidence is also not useful to the prosecution to prove any demand made by the accused to PW1 during the course of trap. This evidence of PW2 with regard to the PW1 passing on the tainted cash to the accused has to be appreciated with reference to other facts on record. 7. There is no dispute that on the same day of trap i.e. on 24.05.1993, PW1 was given order dated 18.05.1993 of the District Supply Officer, Hyderabad restoring fair price shop dealership No.683 to PW1. It is contended by the Special Public Prosecutor that the said order dated 18.05.1993 found in Ex.P8 file was dispatched to the accused after the trap. There is no dispute that few days prior to the date of trap, the accused was promoted and was transferred on promotion to Anantapur District. The Chief Rationing Officer, Hyderabad gave Ex.D1 U.O. note to the accused and PW5 for giving and taking charge. There is also no dispute that on 18.05.1993 itself, the accused and PW5 signed Ex.D2 charge list relating to the accused handing over charge of his seat to PW5. It shows that file relating to fair price shop of PW1 consisting of Exs.P8 and P9 was also handed over by the accused to PW5 under Ex.D2 on 18.05.1993 itself. The order of restoration of dealership passed by DSO on 18.05.1994 was also available in Ex.P8 portion of the file. When DSO already passed restoration of dealership order on 18.05.1993 itself and when the accused already made over the file to his successor PW5 on 18.05.1993 itself and when the accused was simply waiting in his office for his relief from that office, it cannot be said that there was any official favour pending with him. The accused was not holding the file relating to PW1’s dealership on the date of trap. If, in the light of the above circumstances, evidence of PW2 is scrutinized, it is doubtful whether PW2 saw paying MO.6 cash to the accused. It appears that when PW1 was talking to the accused at his seat and shook hands with the accused, PW2 might have thought that PW1 handed over tainted cash MO.6 to the accused. In those circumstances, in my opinion, evidence of PW2 to the effect that PW1 paid MO.6 cash to the accused, cannot be taken for granted and cannot be relied upon. There is no evidence of the accused accepting any illegal gratification from PW1. In the light of the above evidence, in my opinion, the lower Court is not justified in finding the accused guilty of the charges. I do not agree with the reasoning and finding of the lower Court. I find that the prosecution has failed to prove guilt of the accused/appellant under Sections 7 and 13 (1)(d)/13(2) of the Act. 8. In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 10.06.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.949 of 2004 DATED: 10.06.2011 ysk [1] AIR 2010 SUPREME COURT 1589 [2] 2007(1) ALD (Crl.) 209 (SC)