THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2281 of 2004 BETWEEEN: Thandra Papa Rao … Appellant AND State ACB, Karimnagar Range … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2281 of 2004 JUDGMENT: The accused/appellant was working as Assistant Engineer, Integrated Tribal Development Agency (ITDA), Utnoor, Adilabad District. By judgment dated 11.10.2004 in CC.No.21 of 1993, the Principal Special Judge for SPE and ACB Cases, Hyderabad, convicted the accused for 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 rigorous imprisonment for one year and fine of Rs.1,000/- under Section 7 of the Act and to rigorous imprisonment for two years and fine of Rs.2,000/- for the offence under Section 13(1)(d)/13(2) of the Act. Aggrieved by the same, the accused approached this Court with this appeal. 2. PW1 is Tribal Civil Contractor. He was entrusted with work of laying road and construction of culverts from 5/0 to 7/0 KM from Narsapur to Khadiki on nomination on 14.12.1990. Its estimated cost is about Rs.2,00,000/-. It is alleged that on 03.09.1992, the accused at his house, demanded Rs.2,000/- as bribe to record the work in Measurement Books and to process final bill. With the said allegation, PW1 gave Ex.P1 report to PW9, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Karimnagar on 03.09.1992. After issuing Ex.P11-FIR on the basis of Ex.P1, PW9 organized trap for the accused on 04.09.1992. Before proceeding for the trap, pre-trap procedures were conducted under the cover of Ex.P3-mediators report in the presence of mediators, including PW2. PW2 was working as Mandal Revenue Officer, Luxettipet. It is alleged that the trap was successful and that the accused was caught red-handed while in possession of Mo.1 tainted cash of Rs.2,000/-. Plea of the accused is one of not guilty. After trial, the lower Court found the accused guilty of the charges. 3. In this appeal, it is contended by the appellant’s counsel that there is no evidence of demand for bribe or acceptance of bribe by the accused and that the lower Court totally erred in recording conviction of the accused without there being any evidence in support of the prosecution. 4. The defacto-complainant/PW1 turned totally hostile to the prosecution. He deposed that he was entrusted the contract work by ITDA, Utnoor for laying road and construction of culverts worth Rs.2,00,000/- and that he completed the said work and that he got full payment with regard to the said work. He says that he never gave complaint against anybody to ACB officials and that he took hand loan from the accused and he repaid that amount. There is no accompanying witness for PW1 either at the time of demand or at the time of trap. PW1 did not speak anything about the accused demanding for any bribe and about the accused accepting MO.1 tainted cash of Rs.,2,000/- as bribe from him. PW1 totally supported the defence version contained in Ex.P4-mediators report relating to post-trap proceedings. PWs 2 and 9 also supported the version contained in Ex.P4. During post-trap proceedings, when PW9 questioned the accused, the accused stated that he took Rs.2,000/- from PW1, which amount was due as loan amount to him from PW1. PW1 in his evidence supported the said version of the accused by saying that he took hand loan from the accused and repaid the same to the accused. Even if the tainted cash MO.1 was recovered from possession of the accused, it did not matter much because PW1 himself stated during trial that he paid the said amount to the accused towards repayment of hand-loan amount which he borrowed earlier in the absence of proof of demand for bribe by the accused and proof of acceptance of bribe, the question of drawing any presumption under Section 20(1) of the Act does not arise at all. In Banarsi Dass Vs. State of Haryana[1], after considering the previous case law on the subject, the supreme Court held as follows: “11. 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.” 5. The supreme Court further observed that when the de facto complainant turned hostile to the prosecution, the accused is entitled for acquittal in the absence of proof of demand for bribe and acceptance of bribe by the accused. 6. The lower Court after going through the entries in Exs.P7 to P9 Measurement Books, came to the conclusion that official favour was pending with the accused. Irrespective of pendency of any official favour with the accused, when there is no proof of demand for bribe by the accused and when there is no proof of acceptance of bribe by the accused, it cannot be said that the prosecution was able to prove the required statutory facts under Sections 7 and 13(1)(d) of the Act. In any event, the so called presumption under Section 20(1) of the Act stood rebutted by the evidence of PW1 itself when PW1 stated that he paid MO.1 cash to the accused by way of repayment of loan. In my opinion, the lower Court totally erred in finding the accused guilty of the charges. The said finding of guilt recorded by the lower Court is wholly unsustainable both on facts as well as in law. 7. 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:29.07.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.2281 of 2004 DATED:29.07.2011 ysk [1] AIR 2010 SUPREME COURT 1589