THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.1569 of 2004 BETWEEEN: State: rep. By Inspector of Police … Appellant AND B.Sankara Raju … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1569 of 2004 JUDGMENT: The respondent/accused was working as Senior Assistant in Mandal Parishad Development Office, Yerravaripalem Mandal, Chittoor District. The Special Judge for SPE and ACB Cases, Nellore by judgment dated 09.12.2003 in CC.No.12 of 1999, acquitted the accused of offences punishable under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). Questioning the same, the State filed this appeal. 2. The de facto complainant by name G.Seshagiri Rao was working as Mandal Engineer, Yerravaripalem from 01.02.1996 to 30.06.1996. He absconded from duty on 06.03.1996 and 07.03.1996. So, he was issued a memo to show cause for his absence. He was again issued another memo for not entering measurements of certain works in Measurement Book (M.Book). Meanwhile, his salary was not paid from March 1996 to June 1996. He was going round Mandal Parishad Development Office for his salary. It is alleged that on 05.01.1998, the accused demanded the de facto complainant to pay bribe of Rs.2,000/- for preparing note file on his representation for arrears of salary and that again on 04.06.1998 also, similar demand was made and that on 10.06.1998, after bargain, the accused reduced the demand of bribe from Rs.2,000/- to Rs.1,000/-. With the said allegations, the de facto complainant gave Ex.P12 report to PW5, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Tirupathi. PW5 organized trap for the accused in the presence of mediators including PW1. It is alleged that on 10.06.1998 at about 11:45 A.M., the de facto complainant met the accused in his office and on his demand, the de facto complainant paid tainted cash (MO.3) of Rs.1,000/- to the accused and that the trap was successful and the accused was caught red handed while in possession of the tainted cash. Plea of the accused was one of total denial and was one of not guilty. After trial, the lower Court found the accused not guilty of the charges. 3. During trial in the lower Court, the prosecution could not examine the de facto complainant, G.Seshagiri Rao in this case as he was no more by then. In the absence of the de facto complainant, there is no proof of demand for bribe and proof of acceptance of bribe by the accused. The only material available before the trial Court was evidence of PWs 1 and 5 and Ex.P9, second mediators report relating to post trap proceedings. PWs 1 and 5 supported the version contained in Ex.P9. Their evidence reveals that MO.3 tainted cash of Rs.1,000/- was recovered from possession of the accused. In Ex.P9, it is further stated that when PW5 questioned about possession of the tainted cash with him, the accused did not give any statement by way of spot explanation. He only stated that the de facto complainant came to him and requested him to process his salary bill early. It is contended by the Special Public Prosecutor that when MO.3 tainted cash of Rs.1,000/- was seized from possession of the accused, then it is for the accused to give explanation therefor and to rebut the presumption contained under Section 20(1) of the Act. The question of drawing presumption under Section 20(1) of the Act does not arise in the facts of this case. It is well settled law that in the absence of proof of demand and acceptance of bribe by the accused, presumption under Section 20(1) of the Act does not come into operation (See Banarsi Dass Vs. State of Haryana[1]). Apart from there being lack of presumption with regard to pendency of official favour with the accused, evidence of PW1 reveals that during the last stages of the post trap proceedings, the Mandal Parishad Development Officer came to the scene and it was he who handed over Ex.P6 file relating to the de facto complainant. The file was not pending with the accused. In the absence of proof of demand and proof of acceptance of bribe and in the absence of pendency of official favour with the accused, the lower Court rightly found the accused not guilty of the charges. There are no grounds in this appeal to come to a different conclusion. 4. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:24.06.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.1569 of 2004 DATED:24.06.2011 ysk [1] AIR 2010 SUPREME COURT 1589