THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1169 of 2004 BETWEEEN: State : Inspector of Police, Anti Corruption Bureau … Appellant AND C.V.Konda Reddy … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1169 of 2004 JUDGMENT: The accused/respondent was working as Assistant Public Prosecutor Grade-I attached to the Magistrate Court at Kurnool. The Additional Special Judge for S.P.E and A.C.B cases, Hyderabad by judgment dated 05.09.2003 in C.C. No.6 of 1999 acquitted the accused of the charges under Sections 7 and 13(i)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). 2) A private complaint filed by P.W-1 alleging certain offences under the Indian Penal Code was referred by the Magistrate to the police for investigation. The Station House Officer, II Town Police Station, Kurnool investigated into the said complaint and filed charge sheet in the Magistrate Court at Kurnool against the culprits therein. The said case was being prosecuted by the accused in that Court as Assistant Public Prosecutor on behalf of the State. It is alleged that P.W- 1 was compounding the said case with his opponents and coming to know about the same, the accused demanded bribe of Rs.1,000/- from him and threatened P.W-1 with troubles in case he did not pay bribe of Rs.1,000/- and that from 30.06.1997 the case was adjourned to 07.07.1997 and that on 02.07.1997 the accused sent word to P.W-1 and enquired him about non paying of bribe to him and that reluctantly P.W-1 agreed to pay bribe to the accused, but gave report to the Deputy Superintendent of Police, Anti Corruption Bureau (A.C.B), Kurnool. Ex.P-1 is the said report. Thereupon, P.W-8 Deputy Superintendent of Police arranged trap for the accused through P.W-1. On 07.07.1997 the trap was laid. Ex.P-4 contains pre-trap proceedings relating to the said trap. It is alleged that the said trap was successful and the accused was caught red-handed with bribe amount of Rs.1,000/- M.O- 5 which is tainted cash. Plea of the accused is one of not guilty. After trial, the lower Court found the accused not guilty of the charges. 3) During trial in the lower Court, P.W-1 turned hostile to the prosecution. It is his evidence that he and his opponent Bhanu entered into compromise in the pending criminal case and that on 23.06.1997 he met the accused at his house and informed him about the compromise in the criminal case and requested him to see that the case is closed and that the accused stated that he had no objection for the compromise. P.W-1 further deposed that he was told that the accused asked him to pay bribe. P.W-1 did not say that the accused either asked him or demanded him to pay bribe. He is stated to have been informed about the demand of bribe by the accused. P.W-1 says that thinking that the accused demanded bribe from him, he approached A.C.B and gave report. With regard to the trap, P.W-1 deposed that on 07.07.1997 after pre-trap proceedings, he reached the Magistrate Court by 11.15 A.M and that the accused was in front of the bar room and that he and the accused entered into the bar room and sat on chairs and that the accused stood up, kept his Coat on the chair and went to toilet and that thereafter he kept cash of Rs.1,000/- in the left side pocket of the Coat of the accused and that after five minutes the accused came out from the toilet and took his Coat and put on the same and that he shook hands with the accused and requested the accused to see that the case is closed. After P.W-1 gave pre-arranged signal to the trap party, P.W-8 along with mediators including P.W-2 rushed and seized M.O-5 cash from the possession of the accused under the cover of Ex.P-5 post-trap proceedings. In the spot explanation noted in Ex.P-5 post-trap proceedings, the accused stated that he did not demand bribe from P.W-1 and that the party paid money on his own. From the evidence of P.W-1, there cannot be any doubt of the fact that the accused did not make any demand for bribe of Rs.1,000/- from P.W-1. According to the P.W-1, he kept the tainted cash M.O- 5 in coat pocket of the accused in the absence of the accused when the accused left his coat on chair and went into toilet. It is a case of planting of M.O-5 tainted cash by P.W-1 into coat pocket of the accused. Subsequently P.W-1 claims to have shaken hands with the accused. Therefore, any hand rinses and coat pocket rinses of the accused turning pink in sodium carbonate solution may not have any bearing in this case. 4) It is contended by the special Public Prosecutor that P.W-1 in cross-examination admitted that he gave statement to the Magistrate under Section 164 Cr.P.C, and that the said statement is in accordance with the prosecution case. In the absence of evidence of P.W-1 before the trial Court, previous statement said to have been given by P.W-1 before the Magistrate under Section 164 Cr.P.C cannot be taken as a substantive piece of evidence. It can be used only for contradicting evidence of P.W-1 in Court. 5) It is further contended that the burden is on the accused to rebut presumption under Section 20 of the Act since tainted cash was recovered from the possession of the accused. In the absence of proof of demand and acceptance of bribe or illegal gratification by the accused, mere recovery of tainted cash from his possession will not raise presumption under Section 20 of the Act (see Banarsidas V. State of Haryana[1]). Thus, there is no incriminating material at all against the accused in this case. Therefore, I do not propose to consider other aspects of the case in this appeal. The lower Court rightly recorded acquittal against the accused. 6) Hence, the appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 13.06.2011 ksh [1] AIR 2010 Supreme Court 1589