THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL NO.784 OF 2007 JUDGMENT: 1 Aggrieved by the judgment dated 02.01.2007 rendered in C.C.No.18 of 2002 by the learned Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad whereby the respondent herein who was tried for the offence punishable under section 7 and Section 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 (for short ‘the Act’) was acquitted of the said charges, the State preferred this appeal. 2 The gravamen of the charge as culled out from the charge sheet filed by the Inspector of Police, Anti Corruption Bureau (ACB), Kurnool are as follows: (i) The respondent worked as Executive Engineer, A.P. Housing Board, Kurnool from 23.09.2000 to 31.05.2001 and that he is a public servant within the meaning of Section 2 (c) of the Act. E.Bodanand who was examined as P.W.1 is a civil contractor and that he was awarded the contract for the construction of the commercial complex of A.P. Housing Board at Abbas Nagar, Kurnool at the estimated costs of Rs.70,00,000/-. P.W.1 completed the major part of the work worth Rs.49 lakhs and he received payment also and the remaining work worth of Rs.21 lakhs has to be completed. As per the terms of the contract awarded to him, P.W.1 has to use 0.45 X 0.45 mtr. size of slabs for the flooring purpose. But as the said slabs were not available in the market, P.W.1 met the respondent in his office on 18.05.2001 and submitted an application to permit him to use 0.60 x 0.60 mtrs or 0.45 x 0.60 mtrs slabs which are available in the market, for which the respondent demanded Rs.20,000/- as bribe and after bargaining the respondent agreed to receive Rs.10,000/- as illegal gratification to accord permission. On 28.05.2001 P.W.1 met the respondent officer in his office and informed that he could arrange only Rs.6,000/-. Then the respondent received the said amount and directed P.W.1 to bring the remaining amount of Rs.4,000/- within three or four days and then only he would give permission to change the size of the slabs for flooring. In the light of the said illegal demand, P.W.1 approached the Deputy Director (CIU) – P.W.7 and lodged Ex.P.1 complaint, which was registered as a case in Cr.No.3/ACB- CIU-HD/2001 and laid the trap against the respondent officer on 31.05.2010. (ii) On 31.05.2001 at about 1.00 PM, when P.W.1 approached the respondent at his office at Kurnool, the respondent reiterated his earlier demand and accepted the bribe amount of Rs.4,000/- from P.W.1 and kept the same in his left side shirt pocket. The tainted currency notes of Rs.4,000/- were recovered from the possession of the respondent at his instance. Both hand fingers of the respondent and inner linings of the left side shirt pocket of the respondent which came into contact with the tainted currency notes yielded positive results when subjected to the sodium carbonate solution test. Thereafter, after obtaining sanction from the competent authority the charge sheet was filed. 3 During the course of trial, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.15 and M.Os.1 to 8. On behalf of the defence D.W.1 was examined and Exs.D.1 to D.7 were marked. 4 Having analysed the said oral and documentary evidence and other incriminating material available on record, the court below by holding that the prosecution failed to prove the guilt of the respondent beyond reasonable doubt for the charges levelled against him and accordingly acquitted him of the said charges. Hence this appeal by the State. 5 Mr. Ravi Kiran Rao the learned standing counsel for ACB submitted that the accused officer cannot canvass two inconsistent and divergent theories i.e. firstly, the trap was organised because of the grudge and, secondly, the said tainted amount was paid towards loan amount. In view of the inconsistency the court below ought not to have accepted the loan theory and ought to have convicted the accused officer. He further contended that the prosecution proved the demand and acceptance of the bribe of Rs.4,000/- by the respondent on 31.05.2001 beyond reasonable doubt and hence the presumption under section 20 of the Act has to be drawn. 6 On the contrary the learned counsel for the accused officer i.e. respondent herein contended that as on the date when the trap was organised, the work was over and there was no need for the accused officer to receive any amount much less the tainted amount. He further contended that the amount of Rs.4,000/- which was recovered from the respondent officer is not a bribe, but it is a loan amount which P.W.1 had taken from the officer, which version was very well established by the evidence of D.W.1. 7 In the light of the above contentions raised by the counsel on either side, this court looked into the record. The main crux of the case of the prosecution is that P.W.1 approached the respondent – officer and made an application to accord permission for change of the size of slabs for flooring purpose for which the respondent demanded an amount of Rs.20,000/- initially and subsequently he agreed to receive Rs.10,000/-. P.W.1 at the earliest point of time i.e. on 28.05.2001 gave Rs.6,000/- and promised to give the balance amount of Rs.4,000/- later. Thereafter on 31.05.2001 the alleged trap was laid consequent upon to which the law was set into motion. 8 It is the contention of the respondent-officer that he deducted Rs.71,864/- towards seineriage charges from the bills of P.W.1 though P.W.1 submitted receipts showing that he paid the seineriage charges because of which P.W.1 bore grudge against him. Of course the said deduction of seineriage charges by the respondent officer from the bills of P.W.1 is proved and it is also corroborated by the evidence of P.W.4. So the possibility of P.W.1 developing grudge against the respondent officer is manifest from the said act of the respondent officer. 9 The other contention of the respondent officer is that P.W.1 took Rs.4,000/- from him towards hand loan and he repaid the said amount on the date of alleged trap, but it is not bribe. To establish the said version he got examined D.W.1, who in unequivocal terms stated that on the date of trap he witnessed P.W.1 giving money to the respondent officer by apologising for his delay in repaying the said amount. Since the very same statement could also be found in his statement given in the post trap proceedings, his evidence has to be given credit. 10 Further, as seen from the evidence available on record, on 18.05.2001 the respondent officer was not in his office and he was at Hyderabad on other work. So the case of P.W.1 that he met the respondent officer on 18.05.2001 and requested him to accord permission for change of the size of the slabs is doubtful. Moreover, as seen from the record, the respondent officer accorded permission to change the size of the slabs on 21.05.2001 itself and P.W.1 executed the said work with the changed size of slabs on 25.05.2001. The same was also check measured by the Deputy Executive Engineer on 28.05.2001. So it can be safely concluded that no official favour was pending as on the date of the alleged trap with the respondent officer. In that view of the matter, inasmuch as the work was over as on the date when the trap was organised, question of the respondent officer demanding and receiving bribe from P.W.1 also appears doubtful. 11 So, from the above discussion, it is clear that there was a trap on the even date in which the respondent officer was caught red handedly with the tainted amount. But the prosecution failed to establish the existence of demand as well as acceptance by the respondent officer beyond all reasonable doubt. Further, when the vital parts of the prosecution case which formed the genesis for the trap incident cannot be accepted, the prosecution theory cannot be given credit to. 12 In the light of the above discussion, though I found some force in the contention of the learned standing counsel that in view of the stand taken the respondent officer that P.W.1 bore grudge against him and thus question of the other theory of advancing loan amount would not arise, inasmuch as the entire prosecution theory itself is clouded by unexplained and mysterious circumstances, the said contention alone is not sufficient to come to the conclusion that the accused officer is guilty of the offence for which he was tried. Hence I see no merits in this appeal warranting interference by this court and accordingly the same is liable to be dismissed. 13 In the result, the appeal is dismissed. --------------- .11.2010 Kvsn