IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.133 OF 2007 Between: Fazlur Rahman …APPELLANT And State – represented by its Inspector of Police … RESPONDENT This Court made the following: HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.133 OF 2007 JUDGMENT: 1. The accused/appellant was working as Sub-Inspector of Police, Dundigal Police Station in Ranga Reddy District. Crux of allegation against the accused is that on 18.05.2000 at about 06:40 P.M. the accused received bribe amount of Rs.5,000/- from PW.1 in Dundigal Police Station and he was caught red handed by the Anti Corruption Bureau (ACB) Officials in the presence of mediators. PW.5 is the trap laying officer in this case. PW.2 is one of the mediators. Apart from PWs.1,2 and 5, there is no other evidence of the accompanying witness or the shadow witness in this case. ACB Officials employed PW.1 as decoy for handing over bribe to the accused after receiving Ex.P1 report from PW.1, issuing Ex.P-2 – F.I.R. and after complying with pre-trap proceedings covered by Ex.P-3. Ex.P-7 consists of post- trap proceedings during which PW.5 is stated to have seized the tainted bribe amount from the accused in the presence of PW.2 and another. Insofar as pre-trap proceedings covered by Ex-P-3 and post- trap proceedings covered by Ex.P-7, no non-compliance of statutory provisions is pointed out. After obtaining sanction from the State Government under Ex.P-9, G.O.Ms.No.117, dated 27.04.2002, the charge sheet was laid in the Court of Additional Special Judge for SPE & ACB Cases, Hyderabad, by PW.6, who is the investigating officer in this case. It was registered as C.C.No.11 of 2002 by the lower Court. 2. It is prosecution case that one Khaja Farooqui was uncle of PW.1 and he was ordinarily a resident of Abu Dhabi and that Khaja Farooqui came to India in last week of February, 2000 and intended to start Packing and Insulation manufacturing factory in the outskirts of Hyderabad city and that he approached one Seshaiah, who is a land broker of Ac.8-00 of land within the limits of Dundigal Police Station and took him to Dundigal Police Station and introduced the accused to him and that the accused advised Khaja Farooqui to purchase another land within Dundigal Police Station limits instead of the land of Ac.8- 00 shown by Seshaiah and that the accused assured necessary help to Khaja Farooqui in finalising the deal. It is further alleged that thereafter Khaja Farooqui left to Abu Dhabi on 27.04.2000 on urgent telephonic message. It is only thereafter, as per prosecution allegations, interaction between the accused and PW.1 is said to have started. It is alleged that after finding that Khaja Farooqui left India for Abu Dhabi on 27.04.2000, the accused telephoned to PW.1 on 11.05.2000 and informed to PW.1 that he helped Khaja Farooqui in the land deal and Khaja Farooqui promised to pay Rs.10,000/- to him and asked him to collect the said amount from PW.1. It is further alleged that on 15.05.2000 the accused telephoned to PW.1 and enquired him about Rs.10,000/- and that when PW.1 expressed ignorance about the same and requested the accused not to harass him unnecessarily, the accused threatened PW.1 with further harassing him in one way or the other, in case the amount is not paid by 16.05.2000. According to PW.1, he went to Dundigal Police Station on 16.05.2000 at about 06:00 PM and handed over Rs.5,000/- to the accused. It is alleged that the accused enquired about balance amount of Rs.5,000/- and that when PW.1 expressed his inability to pay the said amount, the accused threatened him with dire consequences and directed him to pay balance amount of Rs.5,000/- within two days positively. Thereupon, PW.1 met PW.5 and informed him about the demands being made by the accused. PW.5 planned to lay trap for the accused and carried out the same on 18.05.2000. 3. The lower Court after considering evidence on record, found the accused guilty of the offence under Sections 7 and 13(1)(d)(i)/13 (2) of the Prevention of Corruption Act, 1988 (in short, the Act) and convicted him accordingly. The lower Court passed sentence of rigorous imprisonment for two years and fine of Rs.2,500/- for offence under Section 7 of the Act and again imposed the same sentence of imprisonment and fine for the offence under Section 13(1)(d)(i)/13(2) of the Act. Hence, this appeal by the accused. 4. It is contended by the senior counsel appearing for the appellant that there is no official favour pending with the accused and that there is no demand of bribe much less acceptance of any illegal gratification using his official position as the Sub-Inspector of Police, Dundigal Police Station and that therefore, the prosecution could not make out any of the offences alleged against the accused/appellant. 5. PW.1, who is the decoy in this case, speaks to the prosecution allegations in toto. Assuming for the sake of argument that all the prosecution allegations are true and correct, even then this Court does not find any offence under Section 7 of the Act in this case. Admittedly, there was no official favour pending with the accused. PW.5 also in his cross-examination admits that official favour was not pending with the accused as per contents in Ex.P-1 report given by PW.1. In the absence of any official favour pending with the accused, the question of demand and acceptance of bribe by the accused constituting offence under Section 7 of the Act does not arise at all. Thus, the lower Court went wrong in finding the accused guilty of the offence under Section 7 of the Act. 6. It has to be seen whether the prosecution has made out offence punishable under Section 13 (1) (d) /13 (2) of the Act to the effect that by abusing his official position as Sub-Inspector of Police of Dundigal Police Station, the accused obtained any valuable thing or pecuniary advantage to himself. In Banarsi Dass v. State of Haryana[1], the supreme Court laid down thus: “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…..” 7. It is contended by the standing counsel for ACB that persons who intend to purchase land and properties in and around twin cities of Hyderabad or Secunderabad, approach the police in order to find out whether there are any criminal cases or litigations pending in respect of those lands and that this tendency is more because unscrupulous persons, who have no connections with the land, are cheating the public at large, who intend to purchase landed properties and sites. 8. No doubt, for finding out any encumbrances on the properties or to find out title for the landed properties, one may go to Sub-Registrar Office as well as Revenue Office; but at the same time, there is nothing unnatural for the parties to approach the police also to find out any hidden difficulties are there in respect of the land proposed to be purchased. Therefore, the accused as police officer in Dundigal Police Station was stated to have been approached by PW.1’s uncle Khaja Farooqui, when he intended to purchase Ac.8-00 of land through a broker by name Seshaiah. This background could not be proved by the prosecution either by examining Seshaiah or by examining Khaja Farooqui. PW.1 deposed that his uncle Khaja Farooqui died in December 2001. Even though charge sheet was filed by the complainant in the lower Court in the year 2002, there is no reference in the charge sheet about the death of Khaja Farooqui in December, 2001. The investigating officer during investigation did not make any attempt to examine Khaja Farooqui as witness in this case. Further, Seshaiah who is a land broker and who is stated to have taken Khaja Farooqui to the accused and introduced the accused, is neither cited as witness in the charge sheet nor examined by the prosecution. The prosecution could not prove background for the alleged demand of Rs.10,000/- by the accused to PW.1. It is contended for the appellant that Khaja Farooqui is a fictitious person introduced by PW.1 for the purpose of this case. It is not as if Khaja Farooqui entered into any agreement with any land holder. No death certificate of Khaja Farooqui is filed. In the absence of any proof of existence of Khaja Farooqui and death of Khaja Farooqui, there appears to be some basis for the contention of the appellant that Khaja Farooqui is a fictitious person. 9. Khaja Farooqui was stated to be a resident of Abu Dhabi. PW.1 is stated to be a resident of Australia. Even though PW.1 was present in India during the relevant period, the prosecution could not prove that the alleged person Khaja Farooqui came to India during the last week of April, 2000 by producing necessary possible documents. 10. In this case, except evidence of PW.1 with regard to demand and acceptance of illegal gratification by the accused, there is no corroborative evidence. The alleged accompanying witness/shadow witness did not enter into Dundigal Police Station along with PW.1 on the date of trap on the ground that he was not allowed to go inside the police station along with PW.1. Of course, Sentry constable as PW.3 deposed that after finding out reason with PW.1, he allowed PW.1 only into the police station to meet the accused; and another person accompanying PW.1 remained in the police station compound and did not enter into the police station building. 11. It is contended for the appellant that the prosecution could not prove demand for illegal gratification by the accused. According to PW.1, the accused telephoned to him twice for the amount, once on 11.05.2000 and again on 15.05.2000. PW.1 did not say in his examination-in-chief to which telephone of PW.1 the accused had telephoned. PW.1 was admittedly having a cell phone with him. The accused did not contact PW.1 through that cell phone. If the talks were to take place through cell phone of PW.1, then there is every possibility of tracking phone number from which the accused had telephoned to PW.1. For that reason, PW.1 conveniently stated that the accused telephoned to him to land line No.3235663, which is standing in his mother’s name. Thus, there is no documentary proof to show that the accused telephoned to PW.1 demanding either bribe or illegal gratification. 12. According to PW.1's evidence, the accused received tainted amount of Rs.5,000/- with his right hand and kept the same in left pocket of safari shirt. Both PWs.3 and 5 deposed that the tainted amount was recovered from left safari shirt pocket of the accused. Both hands and safari shirt pocket on left side turned pink when they were dipped in magic solution. Therefore, there can be no doubt of the fact that the tainted amount was recovered from left side safari shirt pocket of the accused. It is explanation of the accused that PW.1 came inside his room and kept the tainted amount on his table and went away and that after noticing the same, he sent DW.1 to call PW.1 and by the time DW.1 called, PW.1 went away from the police station and that immediately thereafter PWs.3, 5 and others entered into the police station and directed the accused to handle the tainted cash and then thrusted the tainted cash into left safari shirt pocket of the accused. DW.1 is stated to have come to the police station in connection with an explosion case, which took place in a school and to meet the accused. It is contended by the Special Public Prosecutor that in case PW.1 is to be called by the accused, then the accused would have preferred any police official or the Sentry constable to call PW.1 and would not have entrusted that work to DW.1. At this stage, evidence of PW.3 - Sentry constable is relevant to the effect that no person by name Chandraiah went inside the police station during the relevant point of time. Therefore, this Court cannot believe presence of DW.1 in the police station and cannot believe the accused asking DW.1 to call PW.1 after the accused noticing the tainted cash left by PW.1 on his table. At this stage, evidence of PW.2 - the mediator, in his cross-examination is most relevant. 13. PW.2 is the then Deputy Registrar of Co-operative Societies in the office of Registrar of Co-operative Societies, Andhra Pradesh, Hyderabad. He deposed to the prosecution case with regard to the recovery of tainted amount from safari shirt pocket of the accused. In cross-examination he admits that the accused stated before all of them that he did not demand bribe from PW.1 and that PW.1 intentionally kept the amount on his table and left. It is contended for the appellant that it is a spontaneous explanation offered by the accused to the trap laying officer and his party for the tainted amount recovered from him. If the said spontaneous explanation offered by the accused to the raid party is considered with reference to evidence of PWs.3 and 5 and also suggestion of the accused to PWs.3 and 5 that PW.5 directed him to handle the tainted cash lying on his table and then thrusted the tainted cash into his shirt pocket, then one inference is inevitable to the effect that when PW.1 left tainted cash on table of the accused and went away, the accused conveniently pocketed it like any other cash. Simply because the accused had pocketed cash of Rs.5,000/- left by PW.1 on his table gratuitously, it cannot be said that it is an illegal gratification received by the accused for doing a favour in discharge of his official duty as Sub-Inspector of Police in Dundigal Police Station. 14. Having regard to the above reassessment of evidence let in by the prosecution, this Court is of the opinion that the prosecution has not made out the offence punishable under Section 13 (1) (d) of the Act also against the accused. This Court does not agree with the reasoning and conclusions arrived at by the lower Court. 15. In the result, the Criminal Appeal is allowed setting aside the convictions and sentences passed by the lower Court against the accused/appellant and acquitted him. ______________________________________ SAMUDRALA GOVINDARAJULU, J July 13, 2010 MD HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.133 OF 2007 July 13, 2010 [1] 2010 (2) U.P.L.J. 66 (SC)