*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.1250 of 2003 %09-03-2011 # Sanga Reddy Ananda Reddy ….Appellant Vs. $ The State of A.P., rep. by its District Inspector Of Police, Anti Corruption of Bureau, Kurnool Range. …. Respondent !Counsel for the Appellant: Sri C.Padmanabha Reddy for Sri Sunil Babu Vajram Counsel for the Respondents: Mr.Ghania Musa, S.C & Spl.P.P for A.C.B <Gist : >Head Note: ? Cases referred: 1. AIR 2010 Supreme Court 1589 2. AIR 1976 Supreme Court 449 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1250 of 2003 DATE:09.03.2011 Between: Sanga Reddy Ananda Reddy …… Appellant And The State of A.P., rep. by its District Inspector Of Police, Anti Corruption of Bureau, Kurnool Range ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1250 of 2003 JUDGMENT : The appellant/accused who was working as Mandal Agricultural Officer Peapully, Kurnool District was convicted by the Additional Special Judge for S.P.E and A.C.B. Cases, Hyderabad by judgment dated 07.11.2003 in C.C. No.27 of 1995 for offences under Sections 7 and 13(1)(d)/13(2) of Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to Rigorous Imprisonment for one year and fine of Rs.1,000/- on each count separately. 2) P.W-3 is son of P.W-1 and was running business in fertilizers, pesticides and seeds under the name and style of Kamadhenu Fertilisers at Peapully, with valid licences. The seeds licence was valid upto 25.05.1994. Therefore, for renewal of the said licence, application was given as per Ex.P-2 on 25.04.1994 to the accused for forwarding the same to the Joint Director of Agriculture, Kurnool for renewal of seeds licence. It is alleged that when P.W-1 who is father of P.W-3 approached the accused on 25.04.1994 along with renewal application, the accused demanded Rs.500/- for forwarding the application to the Joint Director. Thereupon, P.W-1 met P.W-7 who was the then Deputy Superintendent in Anti Corruption Bureau (A.C.B), Kurnool and gave Ex.P-1 written report. P.W-7 arranged trap for the accused on 27.04.1994 and went to R & B Guest House at Peapully and met P.W-1 and prepared Ex.P-3 pre-trap proceedings, giving instructions to P.W-1 and preparing M.O-3 wad of currency notes to the extent of Rs.500/- tainted with phenolphthalein powder. P.W-2 who was the then senior assistant in the office of the District Educational Officer, Kurnool and another functioned as mediators in Ex.P-3 pre-trap proceedings as well as in Ex.P-4 post-trap proceedings. It is the prosecution case that when P.W-1 went to office of the accused at Peapully on 27.05.1994, the office was found closed and was not opened even after waiting for about 3 hours and that thereafter the entire A.C.B party along with mediators and P.W-1 went to Dhone where the accused was residing with his family members and that P.W-1 went into house of the accused and paid bribe of Rs.500/- covered by M.O-3 and that when the A.C.B officials raided house of the accused after receiving signal from P.W-1, M.O-3 tainted cash was recovered from underneath an old newspaper near the window of the house and that when both hands of the accused were rinsed in Sodium Carbonate solution, the solution turned pink. During Ex.P-4 post-trap proceedings, the accused did not give any explanation for the tainted amount found in his house and for his hands turning pink when tested with Sodium Carbonate solution. During trial in the lower Court, the accused came up with an explanation that he did not demand and receive the bribe amount covered by M.O-3 and that when P.W-1 came to his house on 27.04.1994 his wife opened the door when he was inside the house and asked him to sit on a cot in the front room and that P.W-1 invited him for ‘Satyanarayana Vratam’ to be performed in his house on the next day by catching his two hands. The lower Court disbelieved explanation offered by the accused and recorded finding of guilty of the accused. 3) In this appeal the senior counsel appearing for the appellant placing reliance on Banarsi Dass V. State of Haryana[1] of the Supreme Court contended that it is for the prosecution to prove demand as well as acceptance of the money for doing an official favour. The Supreme Court observed: “To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused.” On the other hand, the Special Public Prosecutor placing reliance on Maha Singh V. State (Delhi Administration)[2] of the Supreme Court contended that when the tainted amount is recovered from the accused, no corroboration is necessary for proving demand and acceptance of the bribe. 4) Absence of spontaneous explanation by the accused during Ex.P-4 post trap proceedings cannot prevent the accused from giving explanation for the tainted amount either with him or in his house. It is for the Court to see whether the explanation offered by the accused subsequent to the offence and during trial in the trial Court is reasonable, probable and acceptable. It is not as if even spontaneous explanation offered by the accused during post trap proceedings is liable to be ipso facto believed. The explanation of the accused given during post-trap proceedings has to be tested along with other prosecution evidence and it is for the Court to decide whether the explanation offered by the accused either spontaneously during post-trap proceedings or at a later stage during trial, is acceptable or not. The point of time when the explanation is offered by the accused would be relevant marginally and would not become conclusive in case the explanation is given at the earliest point of time and is not liable to be rejected because it is a belated explanation. Therefore, it is a question of fact to be decided whether the explanation offered by the accused is acceptable or not. 5) In this case, P.W-1 indulged in somersaults during trial. Though in his examination-in-chief he supported the prosecution story, in cross-examination he leaned in favour of the accused and supported his version. It is his evidence in his examination- in-chief that he met the accused in his office on 25.04.1994 and the accused demanded Rs.500/- for forwarding the application to the Joint Director. He further says that he went inside house of the accused when the accused opened door of his house and that the accused asked him as to why he went there and that when P.W-1 told the accused about he going there with regard to licence renewal, the accused asked whether he brought the amount and that he gave tainted currency notes to the accused who counted the same and went inside the house and came out and asked him to go away and assured that he would forward his application. In cross-examination, P.W-1 deposed that on 25.04.1994 when he went to office of the accused, the accused was not in the office and that the attender who was available in the office refused to receive his application and asked him to give some amount towards expenses and that the attender asked him to give Rs.500/-. He further says in cross- examination that on 27.04.1994 when he knocked door of house of the accused, his wife came and opened the door and that he told her about his intention to meet the accused and that when she went inside the house, he also entered inside the house and that about 10 minutes thereafter the accused came from inside room of the house and asked him as to why he came there and that he told the accused that he was performing ‘Sri Satyanarayana Vratam’ and invited him by holding both the hands of the accused and that thereafter he came out and gave pre-arranged signal to the trap party. He further says that when P.W-7 enquired as to where he kept the amount, he told P.W-7 about he keeping the amount underneath a paper at the window. In further cross-examination by the Special Public Prosecutor in the lower Court, P.W-1 admitted that on 25.04.1994 he met the accused in his office at Peapully and gave Ex.P-2 application to him and requested him to forward the same to the Joint Director. Thus, evidence of P.W-1 is highly inconsistent from examination-in-chief to cross-examination and from cross-examination by the defence counsel to the cross- examination by the Special Public Prosecutor. In view of the said highly inconsistent versions given by P.W-1 in the trial Court, the trial Court should have expected corroboration for P.W-1’s evidence. It is not as if in each and every case there is requirement of corroboration for demand and acceptance of bribe. In this case, the evidence of P.W-1 is with full of infirmities. Therefore, it is reasonable to expect for any Court that there should be corroboration for the prosecution version apart from what was stated by P.W-1 in his examination-in-chief and in cross-examination of P.W-1 by the Special Public Prosecutor. There is no accompanying witness or shadow witness for P.W-1 either at the time of the alleged demand of bribe of Rs.500/- by the accused on 25.04.1994 or for the alleged payment of bribe amount by way of M.O.3 by P.W-1 to the accused on 27.04.1994. P.W-3 who is the actual applicant in Ex.P-2 did not accompany P.W-1 either to the office of the accused on 25.04.1994 or to house of the accused on 27.04.1994. His evidence is to the effect that his father informed him about the accused demanding bribe of Rs.500/- from him for forwarding the application to the Joint Director. That part of evidence of P.W-3 is not relevant and admissible as it is in the form of hearsay. 6) It is evidence of the mediator P.W-2 and trap laying officer P.W-7 and also contained in Ex.P-4 post-trap proceedings that M.O-3 tainted cash was seized by P.W-7 from the foldings of old Eenadu newspaper lying at the window of the house. The amount was not recovered from physical possession of the accused. D.W-1 is wife of the accused. It is her evidence that when P.W-1 knocked doors of their house, she opened the doors and that P.W-1 disclosed his identity and informed her about he coming to meet the accused and that she asked P.W-1 to sit on cot as her husband was taking meal and that she went inside and informed the same to her husband and that after 10 minutes she and the accused came to the room where P.W-1 was sitting on cot and that on seeing the accused, P.W-1 greeted him and caught his both hands and invited him for ‘Satyanarayana Vratam’ being performed on the next day. In cross-examination D.W-1 expressed her ignorance as to what transpired after A.C.B officials came into their house. D.W-2 who is an agriculturist and who has acquaintance with P.W-1 as well as the accused deposed that he used to purchase fertilisers from P.W-1’s shop. D.W-2 says that ‘Satyanarayana Vratam’ was performed in the house of P.W-1 on 28.04.1994 and that P.W-1 invited him also for the same. According to the accused, the explanation offered by him during post-trap proceedings, was not incorporated in Ex.P-4. Whether the accused offered spontaneous explanation or not, the evidence on record shows that P.W-1 cannot be believed when he says in the examination- in-chief that the accused demanded bribe of Rs.500/- from him on 25.04.1994 for forwarding Ex.P-2 renewal application for seed licence of his son to the Joint Director and that the accused received tainted cash M.O-3 from him on 27.04.1994 at his house in Dhone. 7) It is contended for the appellant that if really the accused demanded bribe of Rs.500/- from P.W-1, he would have appointed a date for the payment and would have been available in his office at Peapully on 27.04.1994 when P.W-1 intended to pay the said bribe amount to him. Instead, the evidence of P.Ws 1, 3 and 7 shows that when the trap laying party along with mediators and P.W-1 went to the office of the accused at Peapully on 27.04.1994, the office was closed and the accused was not available in his office. They waited at the office for more than three hours, but nobody turned up to the office. It made them to go to house of P.W-1 located at Dhone which is in a different village in different mandal. There is substance in the argument that if really the accused demanded bribe from P.W-1, the accused would have fixed the place and time of payment of the said bribe by P.W-1 to him. Prosecution evidence shows that the prosecution party was almost chasing to locate the accused and finally found the accused at his house at Dhone. 8) P.W-1 in cross-examination deposed that about 3 months prior to the date of trap, the accused seized his shop on the ground that there were some irregularities and that about 8 months prior to the trap, the accused forwarded his application for renewal of pesticide licence. Ex.D-1 shows that pesticide licence of P.W-1 was forwarded by the accused and it was sanctioned by the Joint Director on 04.04.1994. P.W-5 who is the then Joint Director of Agriculture, Kurnool deposed that he did not receive any complaint against the accused. Thus, evidence on record shows that the accused was performing his legitimate duties as per rules by way of forwarding applications of the licencees after making necessary inspection and also seizing shops in case any irregularities are found. It appears that P.W-1 became aggrieved against the accused because the accused seized his shop for certain irregularities on a recent prior occasion. In the circumstances, I do not propose to lay any reliance on that portion of examination–in-chief of P.W-1 which is favourable to the prosecution. In my opinion, the lower Court did not assess the prosecution evidence properly and landed in erroneous conclusion in favour of the prosecution. I do not agree with the reasoning and conclusion of the lower Court. I find that the finding of conviction recorded by the lower Court is not sustainable either on facts or in law. The prosecution has failed to prove demand as well as acceptance of bribe by the accused from P.W-1. 9) In the result, the 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 March 09, 2011 NOTE: L.R.Copy to be marked (b/o)ksh [1] AIR 2010 Supreme Court 1589 [2] AIR 1976 Supreme Court 449