IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.322 of 2004 DATE:15.04.2011 Between: N.Sudhakar Reddy …… Appellant And State of A.P. rep. by Inspector of Police, A.C.B, Warangal Range, Khammam ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.322 of 2004 JUDGMENT : The appellant/accused was working as Deputy Executive Enginer Panchyat Raj (Quality Control and Vigilance), Khammam Sub-division. He was convicted for the offence under Section 12 of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to Rigorous Imprisonment for two years and to fine of Rs.1,000/- by the Principal Special Judge for S.P.E. and A.C.B cases, Hyderabad in C.C. No.21 of 2000 by judgment dated 09.02.2004 on the ground that he offered bribe of Rs.15,000/- (M.O1) to P.W-1 who was working as District Collector, Khammam for transferring him from quality control wing to Tirumalayapalem in regular vacancy in future. Plea of the accused is one of not guilty. 2) P.W-1 was the District Collector, Khammam. P.W-3 was the then Superintendent of Police, Khammam. P.W-2 is the camp clerk of P.W-1 at Khammam. P.W-5 is attender/daffedar of P.W-1 at Khammam. It is evidence of P.W-1 that on 08.06.1999 at about 4.45 P.M the accused came to him and that he asked the accused to why he came to him and that on his repeated questioning, the accused informed him that though he asked for posting at Tirumalayapalem, he did not get the same that in future for any vacancy he may be considered for regular post. It is evidence of P.W-1 that thereafter the accused started taking out a wad of currency notes from his trouser pocket and that the accused offered the same to him and that sensing that the accused was giving bribe to him, he shouted at the accused. Immediately P.W-1 called P.W-3 by phone and called P.Ws.2 and 5 and asked them to ensure that the accused does not leave his office. The entire episode occurred at the camp office of the District Collector at Khammam. After P.W-3 came to the scene, P.W-1 narrated the incident to P.W-3, whereupon P.W-3 phoned up to P.W-6, Inspector of Police, A.C.B, Khammam. P.W-1 got Ex.P-1 report prepared through P.W-2 to his dictation and gave the same to P.W-6. P.W-6 registered the same as crime and issued Ex.P-4 F.I.R. On the requisition of P.W-6, P.W- 4 who is the then Assistant Director of Agriculture, Khammam came there and in his presence P.W-6 seized M.O-1 from the accused under the cover of Ex.P-2 mediators’ report and arrested him. 3) It is pointed out that there is lot of discrepancy with regard to the timings as to when the accused came to the scene and others went there. According to P.W-1, at about 4.45 P.M the accused came to him. In Ex.P-1 also, the same time of 4.45 P.M is given for entry of the accused into camp office of P.W-1. P.W- 2 deposed that the accused came to camp office of P.W-1 at 3.00 P.M and that P.W-3 came there at about 4.45 P.M. P.W-3 deposed that around 4.15 P.M, P.W-1 telephoned to him and informed the incident. P.W-5 deposed that the accused came to P.W-1’s camp office at 4.00 P.M and went inside chamber of P.W-1 at 4.45 P.M. In my opinion, the above discrepancies in timing of the incident and entry of the accused into P.W-1’s chamber may not have any bearing in deciding truth or otherwise of the alleged incident. 4) It is evidence of P.Ws-1 and 3 that the accused pleaded mistake and requested to excuse him treating it as first mistake, or else his family would be ruined. But, P.W-2 in cross examination deposed that when he entered into chamber of P.W-1, the accused was pleading with P.W-1 saying that P.W-1 has misunderstood him in coming to conclusion that he was offering money to P.W-1, and that the accused pleaded that his family would be ruined if report is given against him. From this portion of evidence of P.W-2, a doubt is created as to whether the accused really pleaded mistake on his part or whether the accused was saying that P.W-1 mistook him as offering bribe to him. With this doubt in the back of mind, other circumstances of the case have to be scrutinised. 5) It is contended by the senior counsel appearing for the appellant that P.W-1 was not the authority who can transfer the accused and that there was no vacancy at Tirumalayapalem existing by the date of offence and that therefore there was no official favour pending with P.W-1 by that time. It is pointed out that in order to find an accused person guilty under Section 12 of the Act, the Court has to see whether there was any attempt on the part of the accused seeking any official favour from the defacto-complainant/P.W-1. As District Collector P.W-1 may be administering all the executive departments in the district, but he has no power to transfer a deputy executive engineer in Panchayat Raj Department from one Sub Division to another Sub Division. P.W-6 in cross examination admits that it is only Engineer-in-Chief who is the competent authority to transfer the accused. Engineer-in-chief of Panchayat Raj Department does not work under the control of a District Collector for effecting transfers of Deputy Executive Engineers in that Department. P.W-1 admits in cross-examination that no written application was made by the accused either to him or to the competent authority seeking his transfer to Tirumalayapalem. Thus, neither P.W-1 had any authority or power to transfer the accused nor the accused put in any application for his transfer to Tirumalayapalem either to the accused or to the Engineer-in- Chief of Panchayat Raj Department. In the absence of pendency of any official favour and in the absence of competency of P.W-1 to render any official favour to the accused, the question of applying either Section 7 or Section 12 of the Act may not arise at all. 6) It is not as if the accused entered into chambers of P.W-1 in his camp office for the alleged purpose of seeking his transfer. Along with M.O-1 cash of Rs.15,000/-, P.W-6 seized three other files which were in the hands of the accused under the cover of Ex.P-2 mediators’ report. The accused being a Deputy Executive Engineer in-charge of Quality Control and Vigilance in respect of Panchayat Raj works in that sub division, he went to P.W-1’s chambers along with files for discussion as before. Otherwise, the accused could not have gained entry into P.W-1’s chambers without prior permission or appointment. 7) In this case, character and reputation of P.W-1 also becomes relevant. P.W-1 in cross-examination deposed that while discharging his duties as Collector, Khammam District, he earned good reputation being honest and sincere officer and that large number of people including his subordinates knew that he was not allowing any pressures being brought during discharge of his duties, including that of ministers. He also says that he did not indulge in exerting pressure to see his subordinates are transferred from one place to another place for political or for personal reasons. When the District Collector was holding such reputation and character, it is difficult to believe that the accused who is a mediocre and non-mischievous officer in the opinion of P.W-1 himself, would venture to offer bribe to him by going to P.W-1’s official chambers during working hours of office, for a non-existing favour and for a favour which is incompetent of being extended by P.W-1. From the beginning, it is the endeavour of the accused to convince P.W-1 that P.W-1 mistook that the accused offering bribe to him. On proper reading of the entire evidence on record and visualisation of the fact situation through the evidence on record, I am satisfied that there was some misunderstanding on the part of P.W-1 to the effect that the accused was trying to offer bribe to him. With the said misunderstanding and out of enthusiasm, P.W-1 over- reacted and gave Ex.P-1 report to P.W-6. In my opinion, the lower Court did not appreciate the evidence on record in the right perspective and came to an erroneous conclusion in favour of the prosecution. I find that finding of guilt recorded by the lower Court is unsustainable on facts and on proper reading of evidence let in by the prosecution. 7) In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J April 15, 2011 ksh