IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1985 of 2004 DATE: 12.07.2011 Between: A.B.M.Anwar, …… Appellant And State of A.P. rep. by Inspector of Police, ACB, City Range-II, Hyderabad. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1985 of 2004 JUDGMENT : The appellant/1st accused/A-1 was working as Sub- Inspector of Police, Asifnagar Police Station, Hyderabad. By judgment dated 30.08.2004 in C.C. No.25 of 1993 of the Principal Special Judge for S.P.E and A.C.B cases, Hyderabad, A-1 was convicted of the offences under Sections 7 and 13(1) (d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to rigorous imprisonment for one year and fine of Rs.2,000/- for the offence under Section 7 of the Act, and to rigorous imprisonment for two years and fine of Rs.3,000/- for the offence under Section 13(1)(d)/13(2) of the Act. Aggrieved by the same, A-1 filed this appeal. 2) P.W-1 was taxi driver working on Maruthi Van bearing No.AP 28 T 1451. On 14.11.1991, the said van involved in a road accident by dashing a boy near Asifnagar Mosque, causing injuries to the boy. In that situation, out of fear, P.W-1 parked the van in police station compound at Asifnagar and absconded to Bombay. He returned to Hyderabad on 11.03.1992. It is alleged that P.W-2 who is owner of the van took P.W-1 to Asifnagar Police Station and that A-1 kept him in lockup upto 15.03.1992 and on that day, A-1 demanded P.W-1 to pay Rs.4,000/- as illegal gratification for showing official favour to close the case and that on the request of P.W-1, A-1 reduced the bribe amount to Rs.3,000/- and threatened him that if he failed to pay the demanded bribe amount within 2 or 3 days, he would register a criminal case against him, arrest him and get his driving licence cancelled. With the said allegations, P.W-1 gave Ex.P-1 report to P.W-6 Deputy Superintendent of Police, Anti Corruption Bureau (A.C.B), Hyderabad on 17.03.1992. After issuing Ex.P- 12 F.I.R on the basis of Ex.P-1, P.W-6 organised trap for A-1 on 18.03.1992. It is alleged that the trap was successful and that during the course of trap, A-1 demanded bribe amount from P.W- 1 and when P.W-1 intended to hand over M.O-1 tainted currency of Rs.3,000/-, A-1 asked P.W-1 to pay the same to A-2 who is a police constable and that in pursuance of the said directions of A-1, P.W-1 paid M.O-1 to A-2 and that the trap party seized M.O- 1 cash from the possession of A-2. Plea of A-1 is one of total denial and not guilty. He did not take up any other specific plea of defence. After trial, the lower Court found A-1 alone guilty of the charges and not A-2. 3) In this appeal, it is contended by the senior counsel for A- 1 that there was no official favour pending with A-1 and that evidence of P.W-1 with regard to demand for bribe is inconsistent and that no part of the tainted cash was recovered from possession of A-1 and that there was no accompanying witness for P.W-1 during the trap and that since evidence of P.W-1 is not trustworthy, the lower Court should not have placed reliance on un-corroborated evidence of P.W-1. 4) In Ex.P-1, it is version of P.W-1 that on 15.03.1992 A-1 informed him that he was going to waive the accident case on him if he pays him Rs.4,000/- as bribe, and threatened him that if he did not bring and pay Rs.4,000/- within 2 or 3 days, he is going to file a big case and send him to jail and get his driving licence cancelled, and that on repeated requests A-1 asked him to pay at least Rs.3,000/-. It is evidence of P.W-1 that on 15.03.1992 A-1 took him out of lockup and demanded him bribe of Rs.4,000/- on the promise of dropping the case against him and that when he told him about A-1 already taking Rs.1,900/- from him, A-1 informed him that already that amount was spent and demanded him Rs.4,000/- in 2 or 3 days and threatened that if he did not pay the demanded amount, he would book a case against him by cancelling the licence and by sending him to jail. P.W-1 further says that when he expressed that he was not having money except Mangalasutram of his wife for pledging the same to raise the amount, A-1 asked him not to pledge Mangalasutram and asked him to give Mangalasutram to him instead of money, and that thereafter he left the police station and arranged Rs.3,000/-. P.W-1 did not state that A-1 reduced the demanded bribe amount from Rs.4,000/- to Rs.3,000/-. Absence of the dialogue relating to Mangalasutram of P.W-1’s wife in Ex.P-1 report may not falsify P.W-1’s evidence, because Ex.P-1 report need not contain the entire dialogue between P.W- 1 and A-1. P.W-1 could not substantiate as to how the bribe amount was arrived at Rs.3,000/-, when A-1 is stated to have demanded for bribe of Rs.4,000/-. P.W-1 could not reconcile both the figures in his evidence. It is an infirmity in P.W-1’s evidence. Except P.W-1, there is no other person present when A-1 is stated to have demanded P.W-1 for bribe of Rs.4,000/- or Rs.3,000/-. 4) P.W-1 in cross-examination admitted that the police registered a case against him in C.C. No.53 of 1992 on the file of IX Metropolitan Magistrate, Hyderabad. After the accident, the police registered crime No.200/1991 of Asifnagar Police Station for the offence punishable under Section 337 I.P.C. Ex.P-11 is the case diary of Asifnagar Police Station in Crime No.200/1991. A-1 was the investigating officer in Crime No.200/1991 and after investigation, A-1 filed charge sheet in C.C. No.53 of 1992 in Court. P.W-1 admits that he was convicted in that case and was sentenced to pay fine under two counts to a total sum of Rs.500/-. The two counts relate to the offences under Section 337 I.P.C and Section 132/190 of the Motor Vehicles Act. P.W-5 is the then Inspector of Police, Asifnagar Police Station. He was the Station House Officer in that Police Station. It is evidence of P.W-1 that A-1 filed charge sheet in Crime No.200/1991 on 05.01.1992 and summons issued to the accused therein who is P.W-1 herein could not be served as he was absconding. It shows that by the date of the alleged demand for bribe on 15.03.1992, nothing was pending with A-1 and the case was pending before the Magistrate Court. In spite of it, A-1 is stated to have threatened P.W-1 with filing a big case against him and arresting him and getting his driving licence cancelled. In the absence of any pendency of official favour with A-1, A-1 threatening P.W-1 with some drastic consequences, is improbable. Even if such threats were stated to have been made by A-1 to P.W-1, it can only amount to abusing his official position by A-1 to extract money from P.W-1 and it will not amount to promising official favour to P.W-1 for the sake of illegal gratification. So, in any event, Section 7 of the Act has no application herein. It is to be seen whether Section 13(1)(d) of the Act is applicable to facts of the case and whether it was proved by the prosecution. 5) Even at the time of trap on 18.03.1992, no accompanying witness was there for P.W-1 at the time of P.W-1 entering into Asifnagar Police Station for payment of M.O-1 cash to A-1. Though P.W-3 who is one of the mediators was asked to accompany P.W-1 to Asifnagar Police Station, he was asked to accompany P.W-1 only upto the entrance of the police station and watch the events which take place inside the police station. P.W-3 did not in fact go into the police station and was waiting outside. It is evidence of P.W-1 that when he entered into the police station and met A-1, A-1 enquired him whether he brought the demanded bribe amount and that when P.W-1 stated in the affirmative, A-1 asked P.W-1 to wait outside the police station for some time and that P.W-1 came out and was standing under a tree in the police station compound. P.W-3 saw P.W-1 standing under a tree in the police station compound for about half an hour. It is evidence of P.W-1 that subsequently A-1 called him inside the police station and directed him to hand over the bribe amount to A-2 who was a police constable present in that police station and that accordingly P.W-1 handed over M.O-1 tainted cash of Rs.3,000/- to A-2. After receiving pre-arranged signal, A.C.B trap party entered into the police station and P.W-1 pointed A-2 is the person who received the tainted cash. The tainted cash was seized by P.W-6 from the possession of A-2 in the presence of mediators under the cover of Ex.P-4 second mediators’ report relating to post-trap proceedings. Naturally, hand finger rinses of A-1 in sodium carbonate solution did not turn pink. When P.W-6 questioned A-2 about the tainted cash with him, A-2 gave a statement during post-trap proceedings to the effect that on the directions of A-1, he received M.O-1 cash of Rs.3,000/- from P.W-1. When P.W-6 questioned A-1 about it, A-1 did not give any statement during post trap proceedings and remained silent. From the silence of A-1, nothing adverse against him can be inferred. It is well settled principle of law that an accused person is entitled to maintain silence. It is for the prosecution to prove its case beyond all shadow of doubt. 6) P.W-1 made somersaults even with regard to payment of M.O-1 tainted cash. P.W-1 in cross-examination admitted that he stated before the Magistrate (under section 164 Cr.P.C) that when he went into room of A-1, Assistant Sub-Inspector of Police by name Yesupadam was present there and that A-1 asked him to give the money to Yesupadam and left into the room of Inspector of Police. P.W-1 says that he did not give any money to Yesupadam since Yesupadam asked him to keep the amount in a cover and that he also did not keep the amount in any cover. P.W-1 further admits that he did not state before the Magistrate about A-1 asking him to give the amount to A-2 and in pursuance of the said asking of A-1, he gave money to A-2. Therefore, possession of M.O-1 tainted cash with A-2 cannot be said to be at the behest of A-1. A-1 did not give any direction to P.W-1 to hand over bribe amount to A-2; and in spite of it, P.W-1 is stated to have handed over M.O-1 cash to A-2 without any direction of A-1 to pay the said amount to A-2. Hence, possession of M.O-1 tainted cash with A-2 cannot be equated with acceptance of any bribe amount by A-1 or on behalf of A-1. In the absence of proof of acceptance of bribe by A-1, the lower Court erred in finding A-1 guilty of the offence under Section 13(1)(d)/13(2) of the Act. 7) On analytical scrutiny of evidence on record, particularly that of P.W-1, I have no hesitation to find that there was no official favour pending with A-1 vis-à-vis P.W-1 and that evidence of P.W-1 with regard to demand of bribe is infirm and that there is no proof of acceptance of bribe by A-1 or at A-1’s instance. In those circumstances, finding of guilt of A-1 recorded by the lower Court is unsustainable both in law as well as on facts. 8) In the result, the appeal is allowed setting aside the convictions and sentences passed by the lower Court against the appellant/A-1 and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J July 12, 2011 ksh