THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1579 of 2004 BETWEEEN: State: rep. by Dy.Supdt. of Police … Appellant AND Sri L.Eswar Reddy … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1579 of 2004 JUDGMENT: The accused/respondent was working as District Manager in Andhra Pradesh State Civil Supplies Corporation Limited (in short, the Corporation) at Kurnool. By judgment dated 30.09.2003, the Additional Special Judge for SPE and ACB Cases, Hyderabad in CC.No.3 of 1998, acquitted the accused of offences punishable under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). Questioning the same, the State filed this appeal. 2. PW1 was a Transport Contractor of the Corporation at Kurnool during the years 1995-96 and 1996-97. In pursuance of the transport agreement, PW1 deposited Rs.50,000/- as EMD (Earnest Money Deposit) and Rs.1,00,000/- as security deposit apart from giving bank guarantee for Rs.2,50,000/-. Contract period of PW1 had expired by the end of February 1997. It is alleged that on 07.04.1997, PW1 approached the accused with Ex.P4 letter for issuing ‘No Dues Certificate’ for the purpose of claiming refund of security deposit and EMD and that the accused demanded bribe of Rs.2,000/- for the same. With these allegations, PW1 gave Ex.P1 report dated 07.04.1997 to PW5, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Kurnool. PW5 organized trap for the accused on 09.04.1997 in the presence of mediators including PW2. Ex.P3 contains pre-trap proceedings drafted before PW1 proceeding for the trap. It is alleged that the trap was successful and the accused was caught red handed while in possession of MO.5 tainted cash of Rs.2,000/-. Plea of the accused is one of total denial. He pleads not guilty of the charges. After trial, the lower Court found the accused not guilty of the charges. 3. At the outset, it may be noted that PW1/defacto complainant turned hostile to the prosecution during trial in the lower Court. PW1 says that on 07.04.1997, he sent a requisition letter through one of his clerks’ to the accused for issuance of ‘No Due Certificate’ and that his clerk returned and informed him about the accused demanding Rs.2,000/- as bribe for the same and that again, he directed his clerk to go to the accused and that after going to the accused, the clerk again reported the same to him and that therefore, on the same day, he went to ACB office and gave Ex.P1 report. There is no dispute about PW1 going to the accused in his office during the trap proceedings. It is version of PW1 that when he went to room of the accused, the accused was present there and that he gave requisition letter and the accused signed on it and sent it to the section and that he informed the accused about he bringing the demanded amount and that he kept the amount on table of the accused and stated about he brining the amount as demanded by him from his clerk and that the accused stated that he did not say anything to his clerk, and that the accused took the amount with his hands. During post trap proceedings covered by Ex.P8, hand finger washes of the accused in Sodium Carbonate solution turned pink, apart from back pocket wash of pant of the accused. It is noted in Ex.P8 post trap proceedings as well as stated by PWs 2 and 5 that when the trap laying officer questioned the accused about his possession of tainted cash of Rs.2,000/-, the accused stated that he did not demand any amount from PW1. Except to the above extent, the accused did not state anything thereafter. As can be seen from examination-in-chief of PW1, there was no demand for bribe made by the accused to PW1 either on 07.04.1997 or on 09.04.1997 and PW1 himself kept the tainted cash on table of the accused without the accused demanding for the same. Further, the accused is stated to have denied making any demand to clerk of PW1, when PW1 informed the accused about he demanding bribe of Rs.2,000/- when PW1’s clerk met him. In cross-examination of PW1 by the Special Public Prosecutor in the lower Court, at one stage, PW1 admitted the suggestion that on 07.04.1997 at about 11:00 AM, he went to office of the accused and requested him to issue ‘No Dues Certificate’ and that the accused demanded Rs.2,000/- for giving the said certificate. Immediately, PW1 changed his version and stated that on 07.04.1997, his clerk went to office of the accused but not himself. He says that at the instance of ACB officials, he mentioned in Ex.P1 about he going to office of the accused on 07.04.1997 and the accused demanding for bribe of Rs.2,000/-from him on that day. In cross-examination by the defence counsel, PW1 deposed that even though he told to PW5 about his clerk going to office of the accused on 07.04.1997, PW5 asked him to mention in the report as if he himself went to office of the accused on that day as the contract was in his name. He further deposed that while the trap party was entering into room of the accused, he told them that he kept the amount on table of the accused. 4. It is contended for the appellant that when PW1 was going away after keeping tainted cash of Rs.2,000/- on table of the accused, the accused keeping the said amount in his hand, called PW1 and came out of his room by calling his name and in the meanwhile, the trap party entered into room of the accused and recovered MO.5 from possession of the accused. PW3 is Grade-I Assistant in the same office of the accused. He deposed in cross- examination that on 09.04.1997 at about 12:00 Noon, the accused came out from his chamber and called ‘Naidu’ and that he (PW3) also came out and the accused asked him about PW1 and that he told the accused that he did not see PW1 at that time. He says that the accused was holding something in his right fist and that the accused told him about PW1 going away giving something to him, which he could not hear clearly. He admits that the accused told him that PW1 went away by keeping amount on his table. Evidence of PW3 is consistent with evidence of PW1 on this aspect. In Ex.P8 post trap proceedings, it is absent as to what the accused stated subsequent to denial of demand for bribe. Evidence of PWs 1 and 3 is not in any way inconsistent with the version contained in Ex.P8 post-trap proceedings. From the above evidence on record, there can be least doubt of the fact that there is no proof of demand for bribe by the accused and there is no proof of acceptance of bribe by the accused. Mere recovery of MO.5 tainted cash of Rs.2,000/- from possession of the accused will not lead the Court anywhere, much less towards drawing of presumption under Section 20(1) of the Act. In the absence of proof of demand and proof of acceptance of bribe, the question of drawing presumption under Section 20(1) of the Act does not arise at all. (See Banarsi Dass Vs. State of Haryana[1]) 5. It is further contended for the appellant that the appellant had grouse against the accused as the accused sent proposals to his head office and an amount of Rs.2,11,120/- was recovered from PW1 by way of encashing bank guarantee, because the accused failed to lift the allotted stock of sugar from the factory to Kurnool District. PW1 admits the fact of encashing of his bank guarantee to the extent of Rs.2,11,120/- at the instance of the accused. It is contended that apprehending that the accused may also take some more steps against him for realizing amounts due to defaults committed by PW1 from out of the security deposit and EMD, PW1 gave false report against the accused. Even though PW1 did not put in an application for refund of EMD and security deposit, PW1 gave Ex.P1 report to PW5 on 07.04.1997. PW1 admits that it is only on the date of trap i.e. on 09.04.1997, he gave Ex.P4 application to the accused for issuing of ‘No Dues Certificate’ for the purpose of withdrawing his security deposit and EMD after the expiry of his transport contract period. Immediately, the accused endorsed on Ex.P4, directing his subordinate to check and put up the said application and sent the same to DW1. He did not detain Ex.P4 with him. After giving Ex.P4 application for ‘No Dues Certificate’, PW1 kept tainted cash on table of the accused and slipped away from his room. Thereupon, the accused holding the said amount in his hand, rushed out of his chambers calling name of PW1. In those circumstances, I am of the opinion that the prosecution could not prove either demand or acceptance of bribe by the accused for doing any official favour. There was motive for PW1 to lodge false report against the accused. The lower Court, having regard to the above state of evidence of the prosecution, rightly came to the conclusion against the prosecution case. There are no grounds in this appeal to interfere with finding of acquittal recorded by the lower Court. 6. In the result, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:24.06.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1579 of 2004 DATED:24.06.2011 ysk [1] AIR 2010 SUPREME COURT 1589