THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.65 OF 2004 DATED 14th DECEMBER, 2010. BETWEEN : Sana Haranadha Swamy .. Appellant-accused and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.65 OF 2004 JUDGMENT: This is an appeal arising out of conviction and sentence passed by the learned III Additional District & Sessions Judge, Visakhapatnam, by judgment dated 13.01.2004 in Calendar Case No.63 of 2000 wherein the learned trial Judge convicted the appellant- Accused Officer under Section 248 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for one month for the charge under Section 7 of Prevention of Corruption Act, 1988, (for short ‘the Act’) and also sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for one month, for the offence under Section 13 (2) read with 13 (1) (4) of the Act. The case of prosecution, in brief, is that on 18.08.1995 P.W.1, who is an agriculturist and contractor, sent a petition to the Mandal Revenue Officer, Jalumuru, for issuance of property certificate and he also met the Accused Officer on two occasions for the said purpose. Likewise, on 12.09.1995, P.W.1 went to the Accused Officer and requested for issuance of certificate, for which Accused Officer demanded bribe of Rs.1,000/- and when P.W.1 expressed his inability to pay the same, the amount was reduced to Rs.700/-. Aggrieved over the said demand, P.W.1 lodged Ex.P.1 complaint on 14.09.1995 before the Deputy Superintendent of Police, ACB, Vizianagaram, who arranged a trap on 15.09.1995 and the same was successful. Hence, the case. To prove its case, Prosecution got examined P.Ws.1 to 4 and got marked Exs.P.1 to P.11 and MOs 1 to 10. When examined under Section 313 Cr.P.C., Accused Officer denied the incriminating material against him and got examined D.Ws.1 to 5 and marked Exs.D.1 to D.6 on his behalf. After evaluating the entire oral and documentary evidence adduced by both sides, the learned trial Judge convicted the Accused Officer as stated above. Heard. Learned counsel for the appellant contends that the learned trial Judge observed in the impugned judgment that the prosecution has not proved the first demand in view of the fact that except the evidence of P.W.1 no other evidence is available on record. When once the learned trial Judge accepted the version of the accused that there is no demand, the question of convicting the accused for an offence under Section 13 of the Act does not arise, but, to the contrary the learned trial Judge convicted the accused. He further submits that the prosecution miserably failed to substantiate the demand made by the appellant-Accused Officer and also there is no evidence to show that P.W.1, who is a contractor, sought for a solvency certificate in order to get the period extended. In the absence of any evidence to show that the demand of money is for an official favour, the said act cannot be called as a demand for bribe. It is further submitted that as per the prosecution case, during the trap proceedings the accused received money by left hand and put the same in the pocket and subsequently when the officers entered into the office he thrown the trap money on the table and rubbed the hands with the table cloth, but the phenolphthalein test is positive. As far as left hand fingerprints are concerned also, the test is positive. Further, there was no liquid available in the material objects produced before the Court to prove that the test was conducted in the manner stated by the Prosecution and the same was also accepted by the witnesses. Thus, he prayed to acquit the Accused Officer. This Court perused the entire record and also the evidence adduced. As contended by the learned senior counsel, from a perusal of the record, it is clear that P.W.1, who set the law in motion by lodging a complaint stating that the Accused Officer demanded a sum of Rs.700/- for issuance of solvency certificate, deposed before the Court that he is not only an agriculturist and also a registered contractor. The evidence adduced by D.W.1, Assistant Technical Engineer, before the Court categorically establishes that their office record does not disclose that P.W.1 is a registered contractor. In the absence of any such registration of P.W.1 as a contractor, the purpose for which the solvency certificate required by P.W.1 is highly doubtful. Further, during the raid and recovery also no such application submitted by P.W.1 is recovered by the officers concerned. In the absence of any evidence to show that the demand made by the officer is for doing an official favour in favour of P.W.1, the said demand cannot be construed as a demand of bribe in order to execute an official duty. Further during the trap proceedings, it is the specific case of the prosecution that the Accused Officer received money through left hand and put it in the pocket and threw the money when the raiding party entered into the premises. Further, it is the case of the Accused Officer that said money was inserted in his pocket and the same was resisted by him by left hand. Hence, the result during phenolphthalein test became positive when conducted on left hand. Unfortunately, the solution used in the test conducted on the left hand fingerprints was not available in the Court and that bottle was empty. When it is the case of the prosecution that the Accused Officer received money by left hand and also the phenolphthalein test is positive on the left hand fingerprints, it is the duty of the prosecution to produce the relevant material object before the Court to substantiate the same. In the absence of any such solution produced before the Court, the version of the Accused Officer that money was inserted in his pocket inspires the confidence of the Court. In the absence of any positive evidence to substantiate the demand made by the Accused Officer and also the manner in which the money was accepted by him, this Court is of the view that it is unsafe to convict the accused. Hence, the appeal is allowed and the conviction and sentence imposed on the Accused Officer by the trial Court in C.C.No.63 of 2000 by judgment dated 13.01.2004 is hereby set aside and the Accused Officer is acquitted of all the charges levelled against him. ________________________ JUSTICE RAJA ELANGO Dated : 14.12.2010 sur