THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.654 of 2004 BETWEEEN: State ACB rep. by Dy.Supdt. of Police … Appellant AND D. Sanyasi Naidu … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.654 of 2004 JUDGMENT: This is an appeal against acquittal recorded by the Special Judge for ACB cases, Visakhapatnam by judgment dated 23.10.2003 in CC.No.25 of 2000 (old CC.No.17 of 1994). The accused/respondent was working as Village Administrative Officer, Marrivalasa Village, Kotapadu Mandal of Visakhapatnam District. The lower Court after trial in which PWs 1 to 6 were examined and Exs.P1 to P13 and Mos 1 to 6 were marked; and DWs 1 and 2 were examined on behalf of the accused, found the accused not guilty of the charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). 2. There was fire accident in Marrivalasa Village on 06.11.1993 in which several houses in the village were gutted. PW1 claims to be a social worker and member of Chaitanya Young Men’s Association. The victims of fire accident are covered by Rural Hut Insurance Scheme and were entitled for compensation from United India Insurance Company under that scheme. It is alleged that for processing applications of the victims of fire accident, the accused on 17.11.1993 demanded Rs.50/- per each hut and ultimately agreed to accept at the rate of Rs.20/- per hut totalling Rs.1,520/- for 76 huts. Aggrieved by the alleged demand of the accused, PW1 met PW6, the Deputy Superintendent of Police Anti Corruption Bureau (ACB), Visakhapatnam and gave Ex.P1 report. PW6 arranged trap for the accused on 09.11.1993. PW3 was one of the mediators in Ex.P7 pre-trap proceedings as well as Ex.P8 post-trap proceedings. It is alleged that during the course of trap proceedings, PW1 went to the house of the accused on 19.11.1993 and paid tainted cash of Rs.1,520/- covered by MO.5 to the accused and that after payment, PW1 came out of the house and gave pre-arranged signal to the trap party, when PWs 3 and 6 and others rushed into the house of the accused and seized MO.5 from the accused. Both hand rinses of the accused in Sodium Carbonate solution turned pink. Plea of the accused is one of not guilty. 3. According to the accused, he received the amount covered by MO.5 from PW1 towards repayment of loan borrowed by PW1’s wife from wife of the accused. From the evidence of PWs 3 and 6 and also from the plea taken by the accused, there is no dispute about the accused receiving MO.5 cash from PW1 on the date of trap. The lower Court accepted plea of the accused that he received MO.5 cash towards repayment of loan. I n CHANDRAPPA Vs. STATE OF KARNATAKA[1], the Supreme Court summed up the entire case law and laid down the following propositions with regard to powers of the appellate Court in an Appeal against acquittal. “42. From the above decision, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 4. It is strenuously contended by the Special Public Prosecutor that the amount of Rs.1,520/- covered by MO.5 does not fit in the plea of the accused by way of repayment of loan, because the previous loan amount was stated to be either Rs.2,000/- or Rs.3,000/-. PW1 in cross-examination deposed that his wife informed him that she borrowed Rs.2,000/- from Varahalamma, who is wife of the accused at the time of marriage of his 3rd daughter. He also admits that the accused demanded him to instruct his wife to repay the loan taken by her from his wife. He further admits that on the date of trap, he first informed the accused that he brought the money and when the accused was counting money given by him, he came out of the room by crossing the door way and gave pre-arranged signal. PW1 further admits in cross-examination that in Ex.P2 statement given by him to the Magistrate under Section 164 Cr.P.C., he did not describe the amount paid to the accused as bribe. In Ex.P2 also, it is stated by PW1 that he told the accused that he brought the money and the accused asked him to give the same, and that he took out Rs.1,520/- from his pocket and gave it to the accused and that the accused touched the amount to his eyes and was counting and that immediately he came out and wiped his face with handkerchief by way of pre-arranged signal. From this portion of evidence of PW1, it is not clear whether PW1 gave the amount of Rs.1,520/- to the accused describing the same as bribe amount or describing the same as loan amount. In fact, the accused was not aware of the total amount contained in the wad of currency notes covered by MO.5. It is not as if the accused after counting the amount and finding the same to be Rs.1,520/-, satisfied himself and kept the same in his pocket. Even while counting of the money was going on in the house of the accused, PW1 came out of the house and gave signal to the trap party and the trap party entered the scene and recovered the money from the accused. Thus, PW1 did not make over of MO.5 to the accused by describing the total amount in the wad as Rs.1,520/- towards bribe demanded by the accused for processing the applications of the hut dwellers for insurance schemes. Even before the accused realised whether MO.5 represented the alleged demanded bribe amount or the loan amount repaid, the raid party recovered the same from the accused. Therefore, the accused was not aware when PW1 paid MO.5 to him whether the wad contained Rs.1,520 or Rs.2,000/-. In the absence of knowledge of the accused about total amount contained in the wad of currency notes MO5, it cannot be said that the accused received MO.5 consisting of Rs.1,520 towards bribe demanded by him. 5. It is contended by the Special Public Prosecutor that the accused is taking inconsistent stands in the spontaneous statement given by him to the raid party and during trial in the lower Court. As per contents of Ex.P8 post- trap proceedings, when PW6 questioned the accused about MO.5 initially, the accused did not state anything; and after PW6 repeated the question, the accused stated that he did not receive the amount as bribe but PW1 repaid the outstanding loan amount due to him. Though Ex.P8 contains statement said to have been given by wife of the accused namely Varahalama (DW1), the said statement contained in Ex.P8 may not be admissible in evidence as it is hit by Section 161 Cr.P.C. In view of admission of PW1 in his cross-examination about his wife informing him of having received loan of Rs.2,000/- from DW1 at the time of marriage of the 3rd daughter, now there is no dispute about existence of loan transaction between DW1 and PW1’s wife. DW2 was examined to speak to PW1’s wife borrowing money from DW1. This evidence of DW2 become superfluous in view of admission of PW1 in the cross examination on this aspect. According to DW1, PW1 and his wife came together for the loan and she gave loan amount to PW1’s wife. DW1 says that on the date of trap, she was not available in her house and that when she returned to the house, PW6 enquired her and she stated that PW1 and his wife borrowed Rs.3000/- from her. She says that one hour prior to the trap, PW1 came to their house and informed about his intention to repay Rs.1,500/- towards part payment of the said loan and that when PW1 enquired about her husband, she informed PW1 about her husband sleeping in the house due to fever and motions. The lower Court after considering the evidence on record, believed the defence version that PW1 handed over MO.5 to the accused towards repayment of loan advanced by his wife previously. Even if two views are possible with regard to receipt of MO.5 from PW1 by the accused, this appellate Court cannot come to a different conclusion from that of the lower Court, because the lower Court’s view is also a possible view arising out of the evidence in this case. 6. Further, the lower Court did not place reliance on PW1’s evidence because of the previous animosity between him and the accused. PW1 in cross-examination stated that he obtained loan on his land from the Land Mortgage Bank and that officers of the bank came for attachment of his land and that the accused helped them in identifying his land and that subsequently his lands were attached and brought to auction and that he sold some of his lands even prior to the attachment by beat of tom tom. PW1 admits that he was an accused in a case on the ground that he and 15 others cut away Government trees on tank bund. But PW1 denied the suggestion that he bore grudge against the accused because of the accused identifying his lands to the bank authorities and because the accused involved him in cutting Government trees on the bund of village tank and also because the accused involved him in a case for selling Government Banjar land. Though PW1 denied he having given a false report to ACB officials against the accused, the above evidence on record undoubtedly show existence of motive for PW1 against the accused because the accused was instrumental in several ways against the illegal activities of PW1. 7. Admittedly, PW1 is not one of the victims of the fire accident. He was only espousing the cause of the victims of the fire accident as a social worker. Inspite of it, none of the victims accompanied PW1 to the house of the accused at the time of payment of MO.5 to the accused. Even though one witness cited in the charge sheet accompanied PW1, he remained outside the house of the accused and it was only PW1, who entered into house of the accused for payment of MO.5 to the accused. After PW1 entered into varandah of the accused, the accused took him into a side room and thereafter, PW1 paid MO.5 cash to the accused. Therefore, there was no possibility of accompanying witness witnessing the transaction relating to payment of MO.5 by PW1 to the accused. The said accompanying witness was not examined by the prosecution in the lower Court. 8. Having regard to the above discussion of evidence and reasons given by the lower Court and also having regard to scope of appeal against acquittal as laid down in CHANDRAPPA (1 supra) by the Supreme Court, I am of the opinion that there are no grounds in law to interfere with the finding of acquittal recorded by the lower Court in this appeal. 9. In the result, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 27.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.654 of 2004 DATED: 27.04.2011 ysk [1] (2007) 4 Supreme Court Cases 415