IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No. 510 OF 2004 Between: State: Inspector of Police, Anti-Corruption Bureau, Srikakulam District, Vizianagaram Range …..Appellant/Complainant And Bhairi Rama Rao, Asst. Engineer, (formerly) Section-II, I & C.A.D., Srikakulam. …..Respondent/Accused THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.A.No. 510 OF 2004 JUDGMENT: This is an appeal against acquittal. The accused/respondent was working as Assistant Engineer in Irrigation and Command Area Development department at Srikakulam during the relevant time on 11.09.1993 when the offence is stated to have taken place. P.W.1 was a contractor, who had taken contract relating to Yerragam Branch Channel work. It is alleged that when P.W.1 did work relating to the said Branch Channel, the accused was postponing recording of measurement in M-Book and that on 30.08.1993 when P.W.1 went to office of the accused at Srikakulam and requested him to attend to measurement work, the accused asked him to meet him at his house at Amudalavalasa and that on 05.09.1993 when he went to the house of the accused at Amudalavalasa at 8.00 A.M. and asked him about his bills, the accused demanded him to pay Rs.3,000/- as bribe for attending the present work, as P.W.1 did not pay money relating to previous work also. P.W.1 speaks to the said demand of bribe by the accused, in his evidence. Thereupon P.W.1 met Anti- Corruption Bureau officials at Srikakulam and gave Ex.P-1 report on 11.09.1993 at 9.00 A.M. On the same day evening, the trap was arranged by P.W.7, who is the Deputy Superintendent of Police, A.C.B., Vizianagaram. P.W.5 is taken as one of the mediators for pre-trap proceedings as well as post-trap proceedings, along with another. P.W.5 was then working as Agricultural Officer, Soil Testing Laboratory, Amudalavalasa, Srikakulam District. In the office of A.C.B., Ex.P-5 pre-trap proceedings were prepared during which instructions were given by the A.C.B. officials to P.W.1 and wad of currency notes of Rs.3,000/- was sprinkled with phenolphthalein powder. There is no dispute that on the same evening, A.C.B. officials, staff, mediator along with P.W.1 went near office of the accused. It is evidence of P.W.1 that the accused was coming out of his office by pulling his scooter and that he met the accused at the gate and accosted him and asked the accused as to what happened with regard to Yerragam Branch Channel bills and that thereafter both P.W.1 and the accused went inside the office of the Deputy Executive Engineer and that the accused asked him whether he brought the amount of Rs.3,000/- demanded by him and threatened that if not, his work will not be completed. It is further evidence of P.W.1 that when he informed the accused about he bringing Rs.3,000/-, the accused asked him to give the said amount and that he gave the wad of currency notes to the accused, who received the same with his right hand and counted the said amount and satisfied himself with the amount as Rs.3,000/- and kept the amount in back pocket of the pant on right side. Thereafter, when P.W.1 gave signal to the A.C.B. officials, who were waiting at vantage point, P.W.7 and others rushed into the office and recovered tainted cash of Rs.3,000/- (M.O.8) from the possession of the accused under the cover of Ex.P-7 post-trap proceedings. Either during post-trap proceedings or during trial in the lower Court, the accused did not dispute recovery of M.O.8 tainted cash from him by the A.C.B. officials on that day. It is the contention of the accused that when P.W.1 repaid loan of Rs.3,000/- to him, he received the same from P.W.1 and kept the same in his back pocket without counting the same. The lower Court after considering evidence let-in by both the parties, came to the conclusion that the prosecution could not prove its case beyond all reasonable doubt, with regard to the charges under Sections 7 and 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 (in short ‘the Act’). Therefore, this appeal is filed by the prosecution. Scope of scrutiny in an appeal against acquittal cannot be in dispute. The appellate Court is entitled to scrutinise the entire evidence let-in by both the parties and come to its own conclusion and reverse the finding of acquittal in case the said finding recorded by the trial Court is perverse or the reasons given by the trial Court are palpably untenable or manifestly unjust [see Ram Sewak v. State of U.P.[1] and Girija Prasad v. State of M.P.[2] of the Supreme Court]. In this case, except the evidence of P.W.1, there is no other corroborating evidence or the alleged demand of bribe made by the accused on 05.09.1993 or on 11.09.1993 before P.W.1 paying M.O.8 cash of Rs.3,000/- to the accused. There is no attempt of employing accompanying witness to P.W.1 on both the occasions. Of course, it is not incumbent for the prosecution to employ accompanying witness or shadow witness along with the decoy witness either at the time of payment of the alleged bribe by him to the Public Servant or at any time previously when demand for bribe was made by the Public Servant. The lower Court felt absence of accompanying witness with P.W.1 as a circumstance which failed to corroborate P.W.1’s evidence which was otherwise unbelievable. Even in Ex.P-7 post-trap proceedings prepared at the spot, it was noted that when P.W.7 asked the accused to explain as to possession of M.O.8 cash with him, the accused stated that P.W.1 gave the said cash to him and that it was given to him towards repayment of loan amount obtained by him from him. Thus, there is spontaneous explanation offered by the accused to the trap laying officer for possession of M.O.8 tainted cash with him. It has to be seen as to which version is true, whether the accused received M.O.8 tainted cash from P.W.1 towards bribe or towards loan repayment. P.W.1 in cross-examination denied he having obtained any loan of Rs.3,000/- from the accused on any earlier occasion. But, there is no dispute that P.W.2 and D.W.1 were actually executing the works on behalf of P.W.1 on field. P.W.2 as well as D.W.1 deposed that P.W.1 and the accused were friends and they were having exchange of visits between them. Thus, apart from the official relationship between P.W.1 and the accused as contractor and Engineer, there was friendly relationship also between them. P.W.1 in cross-examination stated that P.W.2 first used to get the work extracted from the labourers and thereafter when he (P.W.1) used to pay money, P.W.2 used to pay the same to the labourers. He says that at no point of time P.W.2 informed him that he took hand loan from third parties to attend his work and that at no point of time P.W.2 spent amount for his work which he repaid subsequently to P.W.2. But, P.W.2 deposed in cross-examination that he does not remember whether he approached and received Rs.3,000/- from the accused in the first week of April, 1992 at the instance of P.W.1 and that he does not remember whether the said amount was handed over to P.W.1. P.W.2 though expressed lack of remembrance for him, did not specifically deny he obtaining Rs.3,000/- from the accused for the sake of works of P.W.1 and handing over the same to P.W.1. D.W.1 deposed that on 02.04.1993 he, P.W.1 and P.W.2 went to office of the accused and that P.W.1 stayed outside and sent him and P.W.2 inside the office to meet the accused and to collect money and that after the accused seeing P.W.1 outside the office, gave Rs.3,000/- to P.W.2 in order to hand over the same to P.W.1. This portion of evidence of D.W.1, was not denied by P.W.2 specifically in his cross-examination though it was put to him. P.W.2 only expressed lack of remembrance about the said incident. It is pointed out by the Special Public Prosecutor that in cross-examination D.W.1 stated that P.W.1 and his family members were rich and sound persons. Therefore it is contended that there was no necessity for P.W.1 to borrow money from the accused. Even though P.W.1 was rich and was moving in politics in Congress Party and was Sarpanch of the Gram Panchayat, evidence on record undoubtedly disclose that P.W.1 has been a politician and not a lender. P.W.1 in cross-examination admitted that one Jami Ramanayya filed O.S.No.39 of 1983 in the Subordinate Court, Sompeta against him for recovery of Rs.34,000/- approximately and that he discharged the said debt during Execution Proceedings. Apart from P.W.1 being a judgment-debtor in money suit, evidence on record further reveals that he was a litigious person. The lower Court noticed that P.W.1 was the complainant in Crime No.3/RC.ACB.VZM/2003 which is a trap case against an officer of the Commercial Taxes Department and that in that case after recording explanation of the officials in Commercial Taxes Department, proceedings were dropped therein and penalty was imposed on P.W.1 for the false trap therein. Further, it was noticed by the trial Court that P.W.1, who enrolled himself as an Advocate committed professional misconduct under Section 35(3) of the Advocates Act, 1961 as he was running canteen in the Court compound. Having regard to the litigious nature of P.W.1, the lower Court rightly sought for corroboration for the version given by P.W.1 with regard to the alleged demands made by the accused for bribe of Rs.3,000/-. In the absence of any independent evidence, the lower Court rightly did not place reliance on evidence of P.W.1, who is otherwise unreliable. The lower Court further noticed that P.W.1 was not only a contractor for Yerragam Branch Channel but also a contractor for Telikipenta Branch Channel and also for repairs to Ramunaidu tank. Admittedly when the bills relating to Telikipenta Branch Channel and repairs to Ramunaidu tank were passed, the accused neither demanded any bribe nor received any bribe from P.W.1 in spite of P.W.1 receiving huge amounts towards those bills. This is another circumstance relied by the lower Court for disbelieving the alleged demand of Rs.3,000/- towards bribe by the accused. No doubt, the lower Court pointed out another trivial circumstance of both hands of the accused not turning pink when dipped in Sodium Carbonate solution during post-trap proceedings and only one hand of the accused turning pink. The lower Court commented that if the accused received the amount with one hand and counted the amount with both the hands and kept the amount in his back pocket of the pant, then there is possibility of both hands of the accused turning pink when rinsed in Sodium Carbonate solution. Of course, this circumstance cannot be sole circumstance to disbelieve P.W.1’s evidence. But, the lower Court took this circumstance along with other proved circumstances on record to add one more straw for disbelieving P.W.1’s evidence. Apart from evidence of P.W.2 and D.W.1 with regard to acceptance of loan theory put forward by the accused, the lower Court noticed that P.W.3 who is the Deputy Executive Engineer in cross-examination deposed that P.W.1 used to take hand loans from them. It is further noticed by the lower Court that P.W.8 stated in his evidence that subsequent to the date of offence, P.W.1 requested him to ask the Executive Engineer for payment of bill amount relating to Yerragam Branch Channel and that when P.W.8 broached the topic with the Executive Engineer, the Executive Engineer refused to do the same as the entire work relating to Yerragam Branch Channel was not completed by P.W.1. The lower Court in the circumstances rightly commented that intention of P.W.1 was to blackmail the Engineer and to enrich himself by getting his bills passed without completion of the work. Thus, on re-assessment of evidence on record and scrutiny of the judgment of the trial Court, I am of the opinion that finding of acquittal recorded by the lower Court is neither perverse nor palpably unreasonable nor manifestly unjust and there are no circumstances in this appeal to reverse the said finding of acquittal recorded by the trial Court. In the result, the appeal is dismissed. ________________________________ JUSTICE SAMUDRALA GOVINDARAJULU 09.03.2011 MR THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl. A.NO. 510 OF 2004 DATE: 09.03.2011 MR [1] (2005) 12 Supreme Court Cases 143 [2] AIR 2007 Supreme Court 3106