THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.49 of 2007 JUDGMENT: This appeal is directed against the judgment dated 30.12.2006 in C.C.No.2 of 2002 passed by the learned Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, whereby the appellant-accused was convicted of the offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for One year on each count and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for one month on each count. The sentences imposed under both the counts were directed to be run concurrently. The case of the prosecution, according to the evidence let in during the course of trial, is that P.W.1-Syed Shameer Ahmed, the defacto complainant, retired from service on 31.05.1999 as Forest Section Officer of Bhoopalpalli village and that he submitted pension papers in the office of Divisional Forest Officer (North), Warangal, but P.W.1 was not sanctioned pension, as No Due Certificate was to be sent to the said D.F.O office from Forest Range Office, Bhupalpally North. P.W.1 was also sanctioned encashment of 237 days of Earned Leave. Therefore, P.W.1 met the accused officer at Bhoopalpalli and requested him for preparing eligible leave encashment bill and issue No Due certificate for his pension settlement and then the accused officer demanded bribe of Rs.15,000/- from P.W.1 for doing such official favour. On the persuasion of P.W.1, the accused officer also agreed to receive Rs.5,000/- and the balance amount after encashment of eligible Earned Leave bill amount. Be that as it may, as P.W.1- complainant was not willing to pay any bribe to the accused officer, he lodged Ex.P2-complaint before P.W.8-the then Deputy Superintendent of Police, Anti Corruption Bureau, Warangal on 16.5.2000 and on receipt of the said complaint, P.W.8 registered a case in Cr.No.6/ACB-WRL/2000 on 19.5.2000 after getting verified the antecedents of the accused officer, genuineness of complaint, he issued Ex.P15 F.I.R and took up investigation. During the course of investigation, P.W.8 secured the services of P.W.1-complainant as decoy, P.W.2 and another as mediators and after conducting Ex.P9- pretrap proceedings, he laid a trap against the accused officer on 19.5.2000 at about 5.30 P.M. at the house of accused officer and during the said trap, the accused officer demanded and accepted tainted amount of Rs.5,000/- from P.W.1 as bribe in pursuance of earlier demands. After receipt of pre-arranged signal from P.W.1, trap party led by P.W.8 rushed into the house of accused officer, conducted chemical tests on both hands and fingers of accused officer, seized M.O.3-tainted amount of Rs.5,000/- from accused officer at his instance, subjected the inner flap of wearing nickker of accused officer to such chemical test and it also yielded positive result and the said nickker was also seized. The versions of accused officer and P.W.1 were incorporated in Ex.P11-post trap proceedings and Ex.P1-file was also seized. All the events of post-trap proceedings were reduced into writing in Ex.P11 by P.W.2 and a copy thereof was served on the accused officer. After examining and recording the statements of the witnesses, collection of Ex.P13-No Due Certificate and after receipt of prosecution sanction orders, charge sheet was filed by P.W.8-D.S.P. against the accused officer for the offences under sections 7 and 13 (1) (d) read with Section 13 (2) of the Act. The prosecution in order to prove its case against the accused examined P.Ws.1 to P.W.8 and got marked Exs.P1 to P16 and M.Os.1 to 8. Exs.X1, X1 (a) to X1 (d) were marked through the witnesses. On behalf of the accused, D.Ws.1 to 4 were examined and Exs.D1 and D2 were marked. The trial Court, on appraisal of entire evidence, both oral and documentary, held that the prosecution has proved the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act against the accused officer and accordingly convicted and sentenced him as stated supra. Aggrieved by the said conviction and sentence, the accused officer preferred the present appeal. Attacking the judgment of the trial Court, the learned Counsel for the appellant-accused officer contended that P.Ws.1, 2 and 8 are highly interested witnesses and there are material contradictions and discrepancies in their evidence and particularly in the evidence of P.W.1 himself. The learned Counsel further contended that the alleged demand and acceptance of bribe was for encashment of earned leave and for issuance of No-Due certificate, which was found to be false if one goes by the evidence of prosecution witnesses. The learned Counsel further submitted that P.W.1 was entrusted with the job of construction of quarters before his retirement and he was given an amount of Rs.2,50,000/-, but he failed to complete the same by the date of his retirement and therefore at the request of P.W.1, the appellant/accused had given a report to the higher authorities as if P.W.1 had completed the work so as to facilitate the latter to claim pensionary benefits, but the construction of quarters remained unfinished and for that the accused officer had to incur an expenditure of Rs.15,000/- for completion of the said work and when the accused officer had demanded the said amount from P.W.1, this case was foisted. On the other hand, the learned Special Public Prosecutor for A.C.B, appearing for the State supports the judgement of the trial Court and justifies the conviction and sentence passed against the accused officer. The main charge against the accused officer is that he demanded and accepted bribe of Rs.5,000/- from P.W.1 promising some official favour for encashment of earned leave and also for issuance of No-Due Certificate. To prove this charge, it is to be seen what is the evidence that has been produced by the prosecution. The evidence of prosecution has been briefly narrated above. P.W.1 is the defacto-complainant and he narrated what he stated in his complaint and also regarding the post trap proceedings. P.W.1 in his cross-examination stated that he represented to the accused officer that he would complete the construction of the quarters by 31.5.1999 and on his representation the accused officer had sent the completion report hoping that he would complete the construction of quarters as assured by him. He also stated that when he met the accused officer on 15.5.2000 he offered the accused officer Rs.5,000/- at Warangal and he refused to receive the same informing him to bring total amount of Rs.15,000/- as he was going to Hyderabad. P.W.2 who is the panch witness to the post trap panchanama stated about the pre-trap and also post-trap proceedings. He stated in his cross-examination that when the accused officer made an attempt to explain several things, Deputy Superintendent of Police became angry over the accused officer and did not allow him to explain in detail. P.W.3, the then Draftsman in forest department, stated that during the year 1998-99 a forest guard’s quarter was constructed at Gandhinagar in Bhoopalpally Range at the estimated cost of Rs.2,50,000/- and the said construction was entrusted to P.W.1. The accused officer was the Forest Range Officer at Bhoopalpally during the relevant time and he had submitted Ex.P12- completion report pertaining to the said quarter. P.W.4 is the former Senior Assistant in the Forest Range Office, Bhoopalpally North Range, Warangal District. He stated that P.W.1 did not make any application for issuance of No due certificate in his favour. Ex.P13 is the No due certificate pertaining to P.W.1 and the contents of the said certificate are in his handwriting. Only month and year of issuance of certificate was mentioned by him in the said certificate and the date was kept blank. 19th date on Ex.P13 is not in his handwriting and he did not mention any such date. In the month of April, 2000 sanction orders for encashment of earned leave were received in the office from Divisional Forest Office and the accused officer gave the sanction orders to the witness for preparing bill for such encashment of earned leave. He prepared the bill for such leave encashment and sent the same to Divisional Office for counter signature of Divisional Forest Officer. After the counter signature, P.W. 1 brought the bill to him on 8.4.2000 while the witness was in State Bank of Hyderabad, Parkal and handed over the said counter signed bill to him. The witness made entry in Token Register, obtained the signature of accused officer in the said register to send the same to Sub-Treasury Office. Ex. P10 is the said counter signed bill. In his cross-examination he stated that P.W.1 retired from service on 31.5.1999, he was entrusted with construction work of quarters by giving him an amount of Rs.2,50,000/- and the said payment was entered in the cash book maintained by the witness. He stated that P.w.1 did not submit any estimates with regard to quarters and until and unless the said estimates were submitted, there was no possibility for the office to issue No-due certificate. He further stated that the accused officer did not issue No-due certificate because P.W.1 has not submitted estimates regarding the forest guard’s quarter at Ghandhinagar, in spite of the demands the accused officer made to P.W.1. He further stated that unless the completion certificate was sent to the Divisional Forest Officer, the pension papers of P.W.1 will not be processed. On 15.5.1999 the original of Ex.P12 was sent to Divisional Forest Officer by the accused officer as P.W.1 was due to retire on 31.5.1999. He further stated that it is true that the leave encashment bill of P.W.1 was submitted by the office for counter signature of Divisional Forest Officer on 28.4.2000 and that on 12.5.2000 the said counter signed bill was sent to Sub- Treasury Officer, Parkal to facilitate payment of leave encashment bill of 237 days to P.W.1 and that there was no delay at the office in sending the said bill to Treasury Office. The said bill was not at all returned by the Treasury Office. After 12.5.2000 there was no work pending in Forest Range Office at Bhoopalpally pertaining to the said leave encashment of P.W.1. P.W.5 is a witness who spoke about the sanction orders issued by the concerned department for prosecution of the accused officer in this case. P.W.6 is the former Superintendent in Divisional Forest Office, North Warnagal. He stated that on 2.3.2000 P.W.1 submitted a petition for encashment of earned leave after his retirement from service and after it was sanctioned vide E.P1, dt. 13.3.2000, it was sent to Forest Range Office, Bhupalapally on 20.4.2000 and the accused officer sent the bill to Divisional Forest Officer for counter signature and on 25.4.2000 the bill with counter signature of Divisional Forest Officer was given to P.W.1. In cross-examination he stated that if there are any recoveries to be made from the concerned employee, his pension will not be fixed, but E.L. encashment will be ordered. For sanctioning E.L. encashment after retirement, it is not necessary to submit any No Due certificate by the concerned employee to the Department. In this case, there was no necessity for P.W.1 to submit any such No Due Certificate for the said E.L. encashment. P.W.7 is the then Superintendent in Forest department and he stated that P.W.1 was charge sheeted for non-transportation of timber which was under his custody to the Government Timber depot. Ex.P3 is the said articles of charges dt. 16.8.1998 framed against P.W.1. In his cross- examination he stated that P.W.1 attended the departmental enquiry on 15.4.1999 and deposed in his statement before Divisional Forest Officer that if he failed to submit his explanation by 22.4.1999, the amount can be recovered from his pensionary benefits. The witness further stated that P.W.1 did not submit any explanation either on 30.4.1999 or even by 10.5.1999 and therefore orders were passed on 11.5.1999 to recover an amount of Rs.68,263/- from P.W.1. He stated that unless the said amount was recovered from P.W.1, there was no possibility to fix up his pension. P.W.8 is the investigating officer who speaks of the trap, post trap proceedings and the investigation he did in this case. From the above evidence it is clear that P.W.1 was entrusted with construction of forest guard’s quarter by giving an amount of Rs.2,50,000/- and it could not be completed by him by or before 31.5.1999, the day on which P.W.1 retired from service. The accused officer had given completion report-Ex.P12 on 15.5.1999 at the request of P.W.1 as P.W.1 had to retire from service on 31.5.1999. It has also come in the evidence that P.W.1 had not submitted estimates regarding the forest guard’s quarter at Gandhinagar so as to enable him to get No-objection certificate. However, it is on record that No-Due certificate was prepared by P.W.4 under Ex.P13 pertaining to P.W.1 and the date was kept blank. It is in the evidence that the bill pertaining to encashment of earned leave was sanctioned by the concerned authority and it was counter-signed by Divisional Forest Officer and it was handed over to P.W.1 on 25.4.2000 and in turn P.W.1 handed it over to P.W.4 on 8.5.2000 and on 12.5.2000 the said bill was sent to Sub-Treasury Office, Parkal for payment. By 25.4.2000 P.W.1 knew that his bill for encashment of leave was counter-signed by Divisional Forest Officer and there is nothing to be done, except formal entries to be made by P.W.4 and proper presentation to the Treasury Officer and there is no role to be played by the accused officer after the bill was counter-signed. There is no evidence from the officials concerned with the forest department that the accused officer had retained the encashment of earned leave bill without processing expecting money from P.W.1. It is in the evidence that the bill was duly processed, it was sanctioned by the competent authority and it was counter-signed and immediately thereafter it was handed over to P.W.1 to be presented in Treasury Office. There is no evidence that the accused officer had delayed the process for want of money. Therefore it is hard to believe that the accused officer had demanded and accepted bribe of Rs.5,000/- from P.W.1 for passing the bill of encashment of earned leave. When this version of P.W.1 is not believed, then the other version of P.W.1 pales into insignificance and cannot be believed that the said demand of money by the accused officer also includes for doing official favour for issuance of No-Due certificate for settlement of pension. Even if the said No-Due certificate was issued, P.W.1 would not be able to get his pension because as spoken to by P.W.7 that there is an order passed by Divisional Forest Officer on 11.5.1999 to recover an amount of Rs.68,263/- from P.W.1 and according to him, unless the said amount was recovered from P.W.1, there was no possibility to fix up his pension. Except P.Ws 1, 2 and 8, no other witness spoke of the bribe the accused officer is alleged to have demanded and accepted from P.W.1. Even the interested testimony of P.Ws. 1, 2 and 8 cannot be believed because of the contradictions, variations and discrepancies inherent in their evidence, when compared to other evidence, which would go to the very root of the prosecution. The accused officer has taken a defence that P.W.1 has not completed the construction of Forest Guard’s quarter before his retirement i.e., on 31.5.1999 and, therefore, at the request of P.W.1, he had issued Ex.P12-completion report to facilitate his retirement and get pensionary benefits, that P.W.1 promised that he would complete the work even after issuance of completion report, but he failed to honour the promise and that therefore the accused officer had to complete the quarter by spending Rs.15,000/- from his pocket, which he demanded from P.W.1 and the receipt of Rs.5,000/- in the alleged trap was received only out of Rs.15,000/- which P.W.1 owed to him for completion of quarter. D.W.1 was the labour conractor and he sated that about 8 years ago he took the construction of forest guard quarter at Gandhinagar in Warnagal district. P.W.1 got the said work executed by the witness. He got laid the slab and got done outer plastering to the said quarter. Since P.W.1 troubled the witness in paying money, he stopped the remaining work relating to internal plastering and flooring of the quarter. After retirement of P.W.1, the accused officer had given the witness a sum of Rs.5,000/- and got the internal plastering to the said quarter done. In the meanwhile the accused officer left Bhopalapally undergoing training and the accused officer had informed him that the remaining amount of Rs.10,000/- will be arranged by him through D.W.3 who was kept in charge of the post of accused officer. He also completed flooring work to the quarter and took Rs.10,000/- from D.W.3. D.W.2 who was the Beat Officer at the relevant point of time sated that P.W.1 was getting the construction of Beat quarter at Gandhinagar and it was competed after his retirement and in his presence the accused officer asked P.W.1 for payment of Rs.15,000/- towards the costs incurred in getting construction of the said quarter completed and P.W.1 promised to pay the later since he had retired from service. D.W.3 is the Forest Range Officer, who is the successor to accused officer. He stated that he took charge from the accused officer.Ex.D1 is the charge list which was handed over by the accused officer to him and by Ex.D2 the accused officer was reposted at the same place and he took charge from the witness again on 30.1.2000. The witness further stated that when he took charge from the accused officer, the latter had given him Rs.10,000/- for getting the remaining construction work of the forest guard quarter completed through D.W.1 and he paid the same to D.W.1 and got completed the work. D.W.4 is the Sub-Treasury Officer, Parkal, Warangal distict and he stated that the bill pertaining to encashment of earned leave was received on 12.5.2000 in Treasury Office and subsequently a demand draft was issued. D.Ws. 1 to 4 were cross-examined and it was elicited from them that no written agreement was executed for receipt of Rs.15000/- by P.W.1 from the accused, except that nothing was elicited from their cross-examination to discredit their testimonies. From their evidence it is established that the forest guard quarter was not completed by the date of retirement and the accused officer had arranged Rs.15,000/- for P.W.1 to complete the quarter and he was making demand for return of the said sum of Rs.15,000/- from P.W.1. Their evidence further establishes that the bill pertaining to encashment of earned leave was received in Treasury office on 12.5.2000 and a demand draft was issued. Apart from the above evidence, there is delay in lodging the complaint with police from the date of alleged demand of bribe. P.W.1 was also charge sheeted for his misconduct during service and he was found guilty of the misconduct and he was directed to pay Rs.68,263/- and since he had not paid, as it is in evidence, his pension was not settled. P.W.1 also breached the contract by which he was supposed to complete the forest guard quarter by or before his retirement i.e., 31.5.1999. On the other hand, the accused officer had come to the rescue of P.W.1 by giving a completion report and also providing him Rs.15,000/- for completing the quarter. It seems there was a dispute between the accused officer and P.W.1 in regard to repayment of the said amount and the present case was the result of the said dispute. From the above facts and circumstances, I am of the opinion that the prosecution has failed to prove the guilt of accused beyond all reasonable doubt and the accused is entitled to benefit of doubt and consequent acquittal. The trial Court has failed to appreciate the evidence properly and came to wrong conclusions. In the result, the Criminal Appeal is allowed and the conviction and sentence passed against the appellant/accused officer are set aside. The appellant/accused officer is acquitted of the offences with which he stood charged and he shall be set at liberty forthwith, if he is not required in any other case. The fine, if paid, shall be refunded to him. His bail bonds are cancelled. ________________________________ (GOPALA KRISHNA TAMADA, J) 25-02-2011 Gsn.