THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2105 of 2004 BETWEEEN: Chopparapu Babu Rao … Appellant AND State rep. By Dy.Supdt. of Police. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2105 of 2004 JUDGMENT: The appellant/accused was working as Additional Assistant Engineer, Andhra Pradesh State Electricity Board (APSEB), (C & O Section), Peravali in West Godavari District. By judgment dated 03.09.2004 in CC.No.1 of 1998, the Special Judge for SPE and ACB cases, Vijayawada, convicted the accused of the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced him to simple imprisonment for two years and fine of Rs.2,500/- on both the counts separately. Aggrieved by the same, the accused filed this appeal. 2. PW1/defacto complainant/decoy witness purchased sick unit by name Sree Transfusears Private Limited in Khandavalli Village in the auction held by Andhra Pradesh State Financial Corporation. He intended to revive the said unit for manufacturing paper tubes and renamed it as Sri Maruthi Industries. In the year 1996, PW1 gave an application to the accused for supply of electricity to his unit. It is alleged that the accused asked him for bribe of Rs.15,000/- for giving electricity connection and that he expressed his inability to pay the said bribe amount and gave only Rs.4,000/- to the accused. This part of the prosecution allegation was dis-believed by the lower Court. There is no dispute that on 16.12.1996, PW1 obtained two Demand Drafts for Rs.15,880/- and Rs.28,500/- towards deposit amounts for giving electricity connection to his unit. Subsequently, poles were erected and electricity lines were fitted to them. It is alleged that on 10.01.1997, the accused demanded him to pay bribe of Rs.1,000/- for giving electricity service connection to his unit and that on 08.02.1997 also, when the accused came to PW1’s factory, the accused demanded for payment of Rs.1,000/- as bribe for fixing the meter and directed PW1 to bring the said bribe amount to his house by the morning of 12.02.1997. With the said allegations, PW1 gave Ex.P1 report on 10.02.1997 to PW6, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Eluru. After issuing Ex.P13 FIR on the basis of Ex.P1 report, PW6 organized trap for the accused on 12.02.1997. Before proceeding for trap, pre-trap procedures were conducted in the presence of mediators, including PW3, under the cover of Ex.P6 mediators report. PW3 was working as Assistant Executive Engineer in Roads and Buildings, Investigation Division at Eluru. It is alleged that the trap was successful and that the accused was caught red- handed while in possession of Mo.3 tainted cash of Rs.1,000/- Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of both the charges. 3. In this appeal, it is contended that there was no official favour pending with the accused as meter for PW1’s unit was sanctioned by the Superintending Engineer on 17.02.1997, long after the date of trap and that because of tussle between the accused and PW1 previously with regard to payment of deposit amounts by way of Demand Drafts, PW1 got this false trap arranged. It is further contended for the appellant that the accused gave instant explanation which was noted in Ex.P8 mediators report relating to post-trap proceedings that PW1 gave the said amount of Rs.1,000 (MO.3) to handover the same to PW4, who is a relation of PW1 and who was residing in the second floor of the same building, as PW4 was not available in his house on the date of trap. 4. As can be seen from Ex.P1 report and also from evidence of PW1, on all the occasions of demand for bribe by the accused as well as acceptance of MO.3 by the accused on the date of trap, PW1 was accompanied by PW2 and he witnessed the entire happenings. PW2 is a watchman in PW1’s factory. He also signed in Ex.P1 report along with PW1. But, PW2 totally turned hostile to the prosecution in all respects. It is his evidence that he saw the accused once at the factory in connection with electricity and that he does not know what happened thereafter and that PW1 and the accused discussed something. He says that he went along with PW1 to one office at Eluru and that his signature was obtained on a paper in connection with his salary and that four days thereafter, he again went to that office in Eluru along with PW1 and that all of them went to Tanuku and that he and PW1 went to PW1’s relation’s house in the second floor of the building to give money to him and that the said house was found locked and that thereafter, they went to house of the accused in the first floor of the building and that PW1 requested the accused to give the money to his relative on his behalf as the house was locked and that the accused did not accept and asked the boy to give that amount to PW1’s relation and that PW1 put the money in a rack on the instructions of the accused. In cross-examination, PW2 further deposed that when the accused asked PW1 as to why he came there, PW1 shook hands with the accused and that PW1 again shook hands with the accused while leaving his house. According to the accused, PW2 thus did not support the prosecution in all aspects of the case. 5. Though the accused examined DWs 1 to 3 in support of his contention in the lower Court, in my opinion, their evidence is superfluous since the prosecution witnesses themselves establish the facts which DWs 1 to 3 tried to speak in favour of the accused. DW1 is servant boy of the accused. He was examined to speak to the instant explanation given by the accused in Ex.P8-post-trap mediators report. The said explanation was spoken to not only by PW2, but also by PW4. DW2 is a lineman in APSEB at Tanuku. He was examined to speak to the quarrel between the accused and PW1 when PW1 was asked to give deposits by way of Demand Drafts for restoration of electricity to PW1’s unit. PW4 also speaks to the said fact in cross-examination by saying that after coming to know about the said quarrel between PW1 and the accused, he pacified accused by going to him. DW3 is a neighbour of the accused. He was examined to speak to the instant explanation given by the accused at the time of post-trap proceedings. DW3’s name was not referred by any of the witnesses present at the time of trap, but he was examined suddenly. There is no basis in record for DW3’s presence at the time of trap. PWs 3 and 6 deposed about the accused giving instant explanation during post-trap proceedings incorporated in Ex.P8. It is noted in Ex.P8 that when questioned by PW6 about MO.3 cash lying in his house, the accused stated that PW1 came to his house at about 8:25AM and enquired about erection of electric meter to his factory, that he stated to PW1 that meter has to be allotted by the Superintending Engineer’s Office, Eluru for which an indent was already submitted to the Assistant Divisional Engineer, Operations, Tanuku and on receipt of the same, the meter will be installed. The accused further stated that when PW1 offered him some amount as bribe, he rejected. The accused further continued to say that PW1 gave him a wad of currency notes to give the same to his friend Reddy, who is known to the accused and who is residing in the second floor of the same building, since he was not available in the house, and that he took the amount with his right hand and kept the same in wall rack even without counting the same with hesitated mood with a view to give the said amount to that Reddy while going to office, and that at that juncture, A.C.B trap party came there and conducted the proceedings. To rule out the said explanation offered instantaneously by the accused, the Investigating Officer examined PW4 during investigation. PW4 denied having given Ex.P12 statement to the Investigating Officer. It is PW4 who was residing in the second floor of the same house in which the accused was residing in the first floor in Nallavari Street, Tanuku. According to PW4, PW1 is his distant relative and PW1’s wife and his wife are close relatives. PW4 says that there were money transactions between him and PW1 and that wife of PW1 used to take money from his wife now and then and used to return the same and that their wives used to transact directly and that PW1 also used to return the money sometimes. He further says that four days prior to 12.02.1997, his wife sent word to PW1’s wife asking her for repayment of the amount lent by her. In cross-examination by the defence counsel, PW4 deposed that PW1’s wife had to pay Rs.1,500/- to his wife by 12.02.1997. He further says that there was an altercation between PW1 and the accused and that he went to office of the accused along with PW1 and pacified the accused and assured that PW1 would obtain Demand Drafts. It is contended for the appellant that PW1 became aggrieved against the accused because PW1 thought that the accused was demanding higher amounts as deposits by way of drafts and it lead to a quarrel between the accused and PW1 and ultimately lead to this false trap. The prosecution witnesses namely PWs 2 and 4 substantiate the instant explanation given by the accused during post-trap proceedings incorporated in Ex.P8. 6. It is contended by the Special Public Prosecutor that shaking of hands by PW1 with the accused on two occasions prior to the A.C.B party entering into the trap scene, was not spoken to by the accused in his spot explanation contained in Ex.P8. In Ex.P8, it was noted that hand finger rinses of the accused in Sodium Carbonate Solution turned pink in respect of only right hand and not in respect of left hand. It shows that the accused did not count the cash before MO.3 was placed in wall rack of that room. When overall explanation given by the accused for MO.3 cash in his house is proved to be probable and true, failure to give meticulous explanation with regard to shaking hands with PW1 cannot assume much importance. 7. It is pointed out by the appellant’s counsel that PW1 was giving false version with regard to each and every aspect including date of supply of electricity to his unit. PW1 in cross- examination deposed that on the same day of trap, electricity supply was given to his unit, when PW6 told PW5 after trap that PW1 was in trouble, and that thereafter, PW5 and the accused came to his unit and fixed electricity meter. PW5 speaks to the procedure for giving electricity connection and installation of meter to the consumer. It is evidence of PW5 that PW1 made meter deposit on 04.02.1997 and that the accused gave indent for meter on 10.02.1997 to him. It is contended that the accused completed his part of the work by giving indent to PW5 on 10.02.1997 itself, prior to the date of trap and that therefore, it cannot be said that there was any official favour pending with the accused. Giving of indent by the accused to PW5 is not the end of the matter. After receiving the indent, PW5 has to send the requisition to the Superintending Engineer, APSEB, Eluru, who sanctions the indent. Thereupon, the accused has to draw the meter from the stores and then fix the meter to the consumer’s unit after the consumer completes his internal wiring and installs motors. In cross-examination, PW5 deposed that on 13.02.1997, he inspected the unit of PW1 and by then, motors were not fixed and wiring was not done and that he issued notice to PW1 on 25.02.1997 and the accused also issued a reminder. According to PW5, on 26.02.1997, the accused gave service connection in his presence after fixing the meter and by that date only, erection of motors and internal wiring was completed by PW1. PW5 says that the Superintending Engineer by his proceedings dated 17.02.1997 allotted meter directing the accused to receive the meter from M.R.T and that meter was released subsequently. Evidence of PW1 that on the same date of the trap, on the recommendation of PW6, electricity connection was installed to his unit by the accused and PW5 after fixing the meter, is incorrect and false. The lower Court inspite of PW5’s evidence in this regard took PW1’s word as gospel truth. PW1’s evidence has no basis in the record, whereas PW5 was giving evidence in Court with reference to files and dates. 8. When PW1’s evidence was disbelieved with regard to earlier demand for bribe of Rs.15,000/- by the accused and payment of Rs.4,000/- as bribe by PW1 to the accused, the lower Court should not have believed the subsequent version of the accused making further demand for Rs.1,000/- as bribe for fixing the meter. In the light of evidence of the accompanying witness PW2, relative of the de facto complainant as PW4 and official witness PW5, in my considered opinion, the lower Court should not have given weight to PW1, who had grouse against the accused in view of previous quarrel between the accused and PW1. In my opinion, the lower Court erred in placing reliance on PW1’s evidence and finding the accused guilty of the offences. I do not agree with the said finding and reasoning given by the lower Court. I further find that the accused is not guilty of the charges under Sections 7 and 13(1)(d)/13(2) of the Act. 9. In the result, the Criminal Appeal is allowed setting aside the convictions and the sentences passed by the lower Court against the accused/appellant and acquitting him. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:26.07.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.2105 of 2004 DATED:26.07.2011 ysk