IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1200 of 2003 Date:31.12.2010 Between: Mantha Ramaswamy .....Appellant AND: The State of A.P., rep. by its PP.., High Court of A.P., Hyderabad. ....RESPONDENT THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1200 of 2003 JUDGMENT: This is an appeal arising out of the C.C.No.3 of 1999 on the file of the Prinicipal Special Judge for SPE & A.C.B Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad as against the sentence passed against the appellant on 27.10.2003. The case of the prosecution is that the accused worked as Executive Engineer (Panchayat Raj) Kothagudem of Khammam District from 14.06.1996 to 07.06.1998. One S.K. Fathe Mohammad resident of Pathlingala village in Khammam District undertook gravelling of the road from PWD road to Oddugudem village under Janmabhumi scheme, and completed the work. The accused after check measurements passed last bill for Rs.42,863/- On 11.4.1998, when Fathe Mohammad approached the accused and requested him to issue the cheque, the accused demanded bribe of Rs.4,0000/- for issuing the cheque. When Fathe Mahammed expressed his inability to pay bribe amount, the accused agreed to accept the bribe amount in two instalments of Rs.2,000/- before and after encashing the cheque, and instructed him to pay Rs.2,000/- on 25.4.1998 in his office or house before 12.00 noon and receive the cheque. As Fathe Mohammad was not willing to pay bribe gave complaint on 23.4.1998 to DSP, ACB, Warangal who laid trap on 25.4.1998, which proved successful. After wards sanction was obtained from the competent authority to prosecute the accused as required under the Provisions of Prevention of Corruption Act, 1988 (in short, the Act). The lower court has framed the charges under Section 13(1)(d) read with Section 13(2) of the Act against the accused and the accused pleaded not guilty for the said charges. The prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.17 and M.Os.1 to 11 and X.1 and X.2 on their behalf. The accused in support of his defence has examined D.Ws.1 to 5 and got marked as Exs.D-1 to D-4. Basing on the above evidence, the lower court has framed the following points for consideration: 1. Whether the accused demanded and accepted bribe for doing an official act of issuing a cheque? 2. Whether the accused by obtaining Rs.2,000/- by abusing his office position committed the offence of criminal misconduct? The lower court after taking into consideration of both oral and documentary evidence, found the accused guilty for the charges under Sections 13(1)(d) read with Sec.13(2) of the Act and convicted him to undergo Rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo simple imprisonment for a period of five months, for the offence under Section 7 of the Act and further sentenced him to undergo Rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo Simple imprisonment for a period of five months, for offence under Section 13(1)(d) read with Section 13(2) of the Act. Both the sentences shall run concurrently. Aggrieved by the said conviction, the present appeal is filed. Now the point for consideration is whether the prosecution could be able to establish the charges under Sections 7 & 13(1)(d) read with Sec.13(2) of the Act against the accused beyond reasonable doubt. According to the prosecution, the accused has completed the work of gravelling of the road from P.W.D road to Oddugudem village under Janmabhumi scheme and the defacto-complainant Sk. Fathe Mahamad has to get an amount of Rs.42,863/- and as the accused officer is working as Executive Engineer, Panchayat Raj, Kothagudem, Khammam District, the defacto-complainant approached on 11.4.1998 for issuance of the cheque for an amount of Rs.42,863/- and the accused officer demanded him to pay Rs.4,000/- for issuing the said cheque and when the defacto-complainant expressed his inability to pay the bribe amount, the accused agreed to accept the bribe amount in two instalments of Rs.2,000/- before and after encashing the cheque and instructed him to pay Rs.2,000/- on 25.4.1998 in his office or house before 12.00 noon and receive the cheque. The learned counsel for the appellant has pleaded that the defacto-complainant and accompanying witnesses P.Ws.1 and 2 has not supported the version of the prosecution and the other evidence adduced by the prosecution could not establish the charges framed against the accused. He further pleaded that the accused admitted in his written statement about receiving of Rs.2,000/- from P.W.1 on 25.4.1998 but he has specifically pleaded that the said amount was received by him towards the cement got supplied by him to P.W.1 and the same was established from the cross-examination of P.W.3 and D.Ws.3 to 5 and the prosecution has failed to establish the demand for payment of the amount and accepting the bribe amount as alleged by the prosecution and simply because the prosecution could be able to establish the trap, the prosecution is not entitled for the presumption available under Section 20 of the Act. He further pleaded that the appellant can rebut the said presumption if any available to the prosecution by adducing necessary evidence. The learned counsel for the appellant in support of his contention that mere acceptance of money is not sufficient for convicting the accused under Sections 13(1)(d) read with Sec.13(2) of the Act, he has relied upon a decision rendered in Subash Parbat Sonvane v. State of Gujarat[1] wherein the Apex Court has held that: “mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i) of the Act. In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the word ‘accepts’ or ‘obtains’. As against this, there is departure in the language used in Clause (1)(d) of S.13 and it has omitted the word ‘accepts’ and has emphasized the word ‘obtains’. Further, the ingredient of sub-clause(i) is that by corrupt and illegal means, a public servant obtained any valuable thing or pecuniary advantage, under Clause (ii) he obtains such thing by abusing his position as a public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under S.13(1)(d), there must be evidence on record that accused; obtained; for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.” In the other decision relied upon by the learned counsel for the appellant rendered in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala[2] wherein the Apex Court examined that the “crucial question is whether the appellant had demanded any amount as gratification to show any official favour and whether the said amount was paid by P.W.10 and received by the appellant as consideration for showing such official favour and observed that the only evidence available in this regard is that P.W.10 who did not support the case of the prosecution. The appellant at the earliest point of time explained that it was not a bribe amount received by him but the same was given to him by P.W.10, saying that it was towards repayment of a loan taken by P.W.2 from accused 1. This is evident from the suggestion put to PW 2 even before PW 10 was examined. Similar suggestion was put to the investigating officer that he had not recorded the version given by the appellant correctly in the post-trap mahazar, Ext.P-9 and no proper opportunity was given to explain the sequence of events and relying upon a decision rendered in Suraj Mal v. State (Delhi Admn)[3], the Apex Court has held the mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove the payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe”. Therefore, in view of the above said decisions, it has to be established by the prosecution that the accused has demanded for payment of the bribe amount and accepted the same. According to the prosecution, the accused first demanded for payment of the bribe amount on 11.4.1998 when the P.W.1 approached him for issuance of the cheque for the work done by him. P.W.1 in his chief-examination has stated that during the April, 1998 he went to Kothagudem to the office of the Deputy Executive Engineer along with ‘M’ Book and got the works executed by him recorded in that ‘M’ Book by the D.E. Then he took that record to the office of the accused officer. Ex.P-2 and Ex.P-3 are the ‘M’ Books numbering 2. He took both the ‘M’ Books to the office of the accused office from D.E office. He handed over the ‘M’ Books to the Drafts Man of the office. The accused officer was not present in the office at that time. Hence, he went away to his house. Two or three times he went to the office of the accused officer in connection with that work and enquired the Draftsman. He told P.W.1 that there is no use in coming to the E.E. office frequently. He advised the P.W.1 to pay some money to the accused officer and get his work done. Then the P.W.1 came back. Since, he had no money to pay to accused officer he was going back to his house. On the way his brother-in-law Dawood Ali met him in his village and he informed his brother-in-law and one Veerabhadram who was also along with him as to what has happened in the office of the accused officer. Veerabhadram told him that he would get his bill passed. He asked the P.W.1 to come to Kothagudem and then on 23.4.1998 P.W.1 and his brother-in-law Dawood Ali and Veerabhadram came to Hyderabad and they took the P.W.1 to ACB office Veerabhadram and Dawood Ali talked for some time and then Dawood Ali drafted a complaint and took his signatures in it. Ex.P-4 is the said complaint. It contains his signature. Then he went to his house. Veerabhadram advised him to meet him on the third day near Mayuri Centre of Khammam, so that he will arrange for payment of his bill. Accordingly he went to Khammam at about 9.00 a.m. His brother-in-law Dawood Ali also came along with him. Both of them went to ACB office, Khammam. His brother-in-law and Veerabhadram went into the office of the ACB, Khammam Fifteen minutes later, he was called inside. Veerabhadram gave him Rs.2,000/-, after he went inside. He kept that money in pocket and from there himself, his brother-in-law and Veerabhadram went to Kothagudem and met the accused officer in his office. He enquired him about his cheque. He told him that the cheque is ready and asked him to take it from the drafts man. Since he was due Rs.2,000/- to the accused officer towards purchase of cement from him, he paid that Rs.2,000/- to him and then went to the seat of drafts man and received the cheque from him and went away. Drafts man asked money from him and he told him that he will pay after the cheque is encashed. Therefore, from the above evidence, P.W.1 who is the complainant has not supported the version of the prosecution and he has not stated any thing about the meeting of the accused officer on 11.4.1999. P.W.2 who is the accompanying witness. P.W.1 is his brother-in-law has stated that on 20.4.1998 during at about 5.00 p.m P.W.1 came to him and informed him that the accused was not issuing the cheque for the civil contract work executed by him earlier. The congress(I) workers who were there at that time also complained to him that the accused has been refusing to give their cheques also. All of them are the firm opinion that accused had been supporting only T.D.P party works and sympathisers. All the congress (I) works insisted that a lesion should be taught to the accused some how or others. All of them took a decision to get him trapped by ACB. Therefore, even P.W.2 has not disclosed about P.W.1 meeting him on 11.4.1998 and informed him about the incident that has occurred on that day in the office of the accused officer. According to the appellant, the accused was not in his office on 11.4.1998 and as such the question of meeting P.W.1 in the office does not arise. The counsel for the appellant has further pleaded that on 11.4.1998, the file pertaining to the issuance of the cheque was not before the accused officer and as such the question of demanding the money for issuing of the cheque does not arise. In support of the contention that the accused was not in town on 11.4.1998, the appellant counsel relied upon the evidence of P.W.5 who worked as Senior Assistant in the office of the Executive Engineer, Panchayat Raj at Kothagudem and in the cross-examination he has stated that from 1994 to June, 1998, he worked in the Executive Engineer office at Kothagudem. There are four sub- divisions in Kothagudem i.e., Ellandu, Enkoor, Kothagudem and Garla. There are four or five Asst. Executive Engineers in Kothagudem sub division. There is an Asst. Executive Engineer in Chandrugunda. The Asst. Executive Engineers will send their tour diaries to the Executive Engineers every month. Each months diary will be sent in the next month first week. One Mr. Mahesh Babu was the Assistant Executive Engineer of the Mandal Parishad and Panchayat Raj of Chandragunda in the year 1998. Ex.D-1 is the diary for the month of April, 1998. As per the said diary on 11.4.1998, he along with Executive Engineer, inspected the works of NABARD, World Bank and on that day their Executive Engineer was the accused officer. The signature in page No.32 of M Book No.1415 of the work relating to Pennagadapa to Rajapuram, P.W.D road contains the signature of Assist. Executive Engineer, MPPR, Chandragunda is one Mr. Mahesh Babu. As per the entries in page 36 of the above book, the accused checked and measured the work on 11.4.1998. Ex.D-2 is the above M Book. Ex.D-3 contains 6 pages. The signature shown to him is that of signature of Prasada Reddy, Dy. Executive Engineer, Panchayat Raj sub-division, Sujatha Nagar which was earlier known as Eankur sub-division. It also contains the signature of Sri Lakshmana Rao, Asst. Executive Engineer, Panachayat Raj, Kamapalli. Therefore, according to P.W.5 on 11.4.1998, the accused officer has checked the works relating to Pennagadapa to Rajapuram, P.W.D road and made entries in Ex.D-2 check measurement book and Ex.D-3 is the Log Book of the accused officer would show about the visit of accused officer for the above said works on that day. In support of the said contention, the accused officer examined D.W.1 A Chandrashekhar who worked as Attender in the office of the Executive Office, Panchayat Raj, Kothagudem since 1993. He used to accompany the Executive Engineer whenever he goes on camps. One Venkateshwarulu was the Jeep driver at that time. He used to maintain the log book of the vehicle, since Venkateshwarulu was illiterate. Ex.D-3 is in his hand writing. On 11.4.1998 they left Kothagudem at 8.00 a.m and returned back to Kothagudem at 8.30 p.m, on that day he accompanied the accused and they went to Chandrugonda Mandal, Julupaddu and Palvancha, Mulakalpally Mandal. In 1998 one Mahesh Babu was the Assistant Executive Engineer, Chandrugonda Mandal. He was also with them on that day. The next witness examined by the appellant is D.W.2 U Mahesh Babu who worked as the Asst. Executive Engineer in Panchayat Raj, Kothagudem since August, 2000. Prior to that he worked as A.E.E at Chandru Gonda mandal from February, 1997. He knows D.W.1 accused officer worked as Executive Engineer, Kothagudem from 1993 to 1998 and he retired in September, 1998. He supervised the road work at Penugadapato Rajapuram in Chandru Gonda Mandal during February, 1998. He recorded the measurements in Ex.D-2 on 7.4.1998 at page Nos.34 to 37 and the same is in his hand writing. Accused officer checked the measurements on 11.4.1998. On that day accused officer came to Chandrugonda Mandal at 10.00 a.m and he was there upto 4.00 p.m. D.W1 also came along with accused officer. Ex.D-1 is the Tour diary submitted by him for the month of April, 1998. It discloses his movement on 11.4.1998 along with the accused officer. Therefore, from the evidence of D.Ws.1 and 2 and P.W.5, it is evident that the accused officer went on camp to Chandru Gonda Mandal for inspecting the works and the same is evident from Exs.D-1 to D-3. Therefore, the appellant could be able to establish that he was not in the office on 11.4.1998 from 8.00 a.m to 8.30 p.m. With regard to receiving of the file in the office of the Executive Engineer pertaining to P.W.1, P.W.5 who is the Senior Assistant worked in the office of Executive Engineer, during that period has stated in his cross- examination that as per the covering letter shown to him, Prasada Reddy, Deputy Executive Engineer sent the bill of PW.1 to the office of the accused on 15.4.1998 and he does not know when actually he dispatched the bill. The bill will be first scrutinised by the Drawing branch, drafts man. One Rajender Babu was the then drafts man of their office. As per the record shown to him he had put up note file on15.4.1998. He does not know whether by 15.4.1998 the bill was received in the office of the accused. After the accused issued pass order, cheque has to be prepared by the Superintendent of the office. The investigating officer who is the P.W.8 has admitted in his cross-examination that Ex.P-17 shows the accused officer approved the bill of P.W.1 on 15.4.1998 and he admitted that Ex.P-17 was seized from the office of the accused on the date of trap and file does not disclose that it was placed before the accused officer by the staff on 11.4.1998. Therefore, there is no material available on record to show that the file pertaining to P.W.1 placed before the accused officer on 11.4.1998. More over, with regard to the demand of bribe amount by the accused officer, the only person available to speak about the same is P.W.1. P.W.1 has turned hostile and he has not stated anything about the same. But, the learned Special Judge had taken into consideration that the cheque was issued on the date of trap and as per Ex.P-4 complaint, the accused has demanded the bribe amount of Rs.4,000/- on 11.4.198 and thus P.W.1 gave a complaint under Ex.P-4 to the Deputy Superintendent, A.C.B about the demand of the accused for payment of Rs.4,000/- towards bribe amount for issuing the cheque. He also relied upon the evidence of P.W.3 who is the mediator for the trap who has stated that the P.W.1 has stated before him and the P.W.8 who is the Investigating Officer that about the accused demanding for payment of Rs.4,000/- as bribe and thereby came to the conclusion that there was a demand of bribe amount by the accused for issuing the cheque. With regard to Ex.P-4 complaint, P.W.1 has stated in his cross-examination that he was not aware of the contents of Ex.P.4 and it was drafted by P.W.2 and obtained his signatures. P.W.2 has stated in his chief- examination itself that the Congress (I) workers who were there at that time also complained to him that the accused has been refusing to give their cheques also. All of them are the firm opinion that accused had been supporting only T.D.P party workers and sympathisers and all the congress (I) workers insisted that a lesson should be taught to the accused some how or the others and all of they took a decision to trap the accused. Therefore, from the above evidence, it cannot be said that it is a substance evidence to prove the demand by the accused. The other evidence relied upon by the learned Special Judge is the evidence of P.W.3. P.W.3 who is the mediator for the trap and he has stated that along with P.W.1 Dawood Ali was also present in the DSP office on that day and ex.P-4 is the original complaint and on which himself and one Rama Rao have put their initials on that day in token of having gone through its contents and verified them from P.W.1. P.Ws. 1 and 2 were introduced to them by the DSP, ACB. They have also verified the contents of Ex.P-4 from P.W.1. Therefore, whatever verification made by P.W.1 is only with regard to the complaint made by P.W.1 and it amounts to ear say evidence by P.W.3 as the evidence of P.W.1 has not supported the version of the prosecution. Thus, the prosecution could not be able to establish the demand of bribe amount for issuance of the cheque by the accused officer and as such it was not established by the prosecution beyond reasonable doubt. As the learned Special Judge has observed since the prosecution could be able to establish about the recovery of tainted money from the possession of the accused, it has to be presumed that he has demanded and accepted the bribe amount from the P.W.1. According to the appellant in his written statement has admitted about the receipt of Rs.2,000/- from P.W.1 but he pleaded that he has paid the same towards cost of the cement got arranged by him. He also pleaded that the investigating officer has not properly recorded the explanation given by the accused at the time of trap. P.W.3 is the mediator for the trap and in the cross-examination he admitted that the accused officer stated that he arranged the cement on credit basis to P.W.1 prior to the date of trap. But, he denied that the accused officer has stated that the said amount paid to him by P.W.1 representing the price of the same which has arranged earlier. He also denied that the accused officer stated before the DSP that he arranged the cement from one Chanda Mallesham and that they intentionally omitted to make such fact in the 2nd mediators report. He does not know whether one Krishna Prasad, Contractor was also present in the chambers of the accused officer by the time trap party entered into the accused officer’s chambers. The learned Special Public Prosecutor has argued that when there is evidence of investigating officer with regard to successful trap supported by the evidence of the mediator, which has to be presumed that the accused has received the illegal gratification and in support of his contention, he relied upon a decision rendered in Hazari Lal v. The State (Delhi Admn.)[4] wherein the Apex Court held “that where the evidence of the police officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the fact and circumstances of another case the court may unhesitatingly accepted the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can thee be any presidential guidance.” In the present case,