IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.782 of 2004 DATE: 29.04.2011 Between: State : Inspector of Police-I, Anti-Corruption Bureau, Nellore Range, Nellore. …… Appellant And Pasumarthi Janardhana Rao ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.782 of 2004 JUDGMENT : This is an appeal against acquittal. The Special Judge for S.P.E and A.C.B cases, Nellore by judgment dated 27.11.2003 in C.C. No.17 of 2002 acquitted the accused of charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). The accused/respondent was working as Superintending Engineer, Panchayat Raj, Nellore Circle. P.W-1 is the contractor for construction of M.P.P building at Duttaluru as President of Labour Contract Co-Operative Society, Talamanchi. There is no dispute that under the contract a total sum of Rs.15,50,000/- was paid to the contractor in instalments at different stages of construction. The balance amount towards final bill payable to P.W-1 was around Rs.2,00,000/-. 2) It is alleged that when P.W-1 approached the accused for final bill payment at his house on 15.05.2001, the accused demanded illegal gratification of Rs.10,000/- for doing the said official favour and that after bargain, the amount was reduced to Rs.3,000/-. P.W-1 approached P.W-5 Deputy Superintendent of Police, Anti Corruption Bureau (A.C.B), Nellore and gave Ex.P-1 report against the accused alleging that he demanded for bribe of Rs.3,000/- from him. The report was given on 15.05.2001. P.W-5 arranged trap for the accused on 16.05.2001. P.W-4 was one of the mediators for the trap. He was working as Deputy Commercial Tax Officer No.2 at Nellore. Prior to proceeding for trap, Ex.P-4 mediators report for recording pre-trap proceedings was prepared. According to the prosecution, the trap was successful and the accused was caught red-handed while in possession of tainted amount of Rs.3,000/- covered by M.O- 3. Plea of the accused is one of the not guilty. The lower Court after trial, during which P.Ws 1 to 6 were examined and Exs.P-1 to P-19 and M.Os 1 to 8 were marked for the prosecution and Exs.B-1 to B-7 were marked for the accused, found the accused not guilty of the charges. 3) During trial in the lower Court, the defacto- complainant/P.W-1 tuned totally hostile to the prosecution. P.W-1 says that he met the accused thrice in his office in connection with final bill payment of his work and that the accused informed him about he not receiving the file concerned and that he had no hope to get the bill amount and that due to his financial difficulty, he was unable to decide as to what he should do and that his colleagues advised him to approach A.C.B people in order to get the bill and that therefore, he went to A.C.B office, Nellore on 15.05.2001 and presented Ex.P-1 report. He further says that his colleagues advised him that A.C.B people would receive his report if he states that the accused demanded money, and that therefore, he drafted Ex.P-1 in that manner. He categorically says that he did not go to house of the accused and that the accused did not demand bribe from him. With regard to the trap, it is evidence of P.W-1 that at 6.00 P.M, the accused came to the office and that he (P.W-1) went into room of the accused and that the accused was not available in the room as he went to bath room and that there is another ante-room and that he waited for the accused, but the accused did not come out from bath room and that he thought over the matter as to how he would get the bill amount and that he thought over as to where he had to put the money brought by him since the accused did not come out of the bath room, and that he found shirt of the accused to a hanger and that he kept the money brought by him into that shirt pocket. He says that at about 6.15 P.M he came out of the office of the accused and informed A.C.B people that he put the currency notes brought by him in the shirt pocket of the accused which is hanging to a hanger and that all the A.C.B officials came into office of the accused. P.W-2 was working as blue print operator in the office of the accused. He says that when the Deputy Superintendent of Police, A.C.B asked all of them as to whether they saw the accused receiving bribe of Rs.3,000/- from P.W-1, they told him that they did not see such an incident. P.W-4 and P.W-5 speak about they rushing into the room of the accused and seizing M.O-3 tainted cash of Rs.3,000/- from his shirt pocket. From the evidence of P.Ws 4 and 5 and Ex.P-16 mediators report relating to post-trap proceedings, there any dispute of the fact of recovering of M.O-3 tainted cash from the possession of the accused. Their evidence further reveals that both hand washes in Sodium Carbonate solution as well as shirt pocket wash in the same solution turned pink. 4) It is pointed by the Special Public Prosecutor that in Ex.P-16 post-trap proceedings the immediate version given by the accused to P.W-6 is entirely different from the version given by P.W-1 during trial in the lower Court. In Ex.P-16 it is noted that when P.W-6 questioned the accused, the accused stated that P.W-1 came to his office at 18.00 hours when he was looking to his files and requested him for approval of the bill pertaining to execution of contract work at Duttalur and that he told P.W-1 about he recommending to the Government for extension of agreement through the concerned Chief Engineer and after receiving approval from the Government and after final inspection, the remaining balance amount under the contract will be paid by the concerned Executive Engineer, Panchayat Raj. He further stated that on hearing the above explanation from him, P.W-1 placed a wad of currency notes on his table and requested him to accept the same for considering his request for payment of balance amount which was due to him from panchayat raj department and that though he refused to receive the said wad of currency notes, P.W-1 put the said wad of currency notes into his upper pocket when he was signing the papers. The said statement of the accused is relevant under Section 8 of the Evidence Act. Though version given by the accused in Ex.P-16 is different from the version spoken to by P.W-1 during trial in the lower Court, both the versions are to the same effect that neither the accused demanded the bribe amount nor accepted the said bribe amount voluntarily. To that extent, there is consistency in both the versions of the accused as well as P.W-1. There is no evidence on record to show that the accused demanded the bribe of Rs.3,000/- from P.W-1 and that in pursuance of the said demand, P.W-1 paid M.O-3 tainted cash to the accused. M.O-3 tainted cash reached shirt pocket of the accused either during his absence in the room as stated by P.W-1 or when the said money was thrusted by the accused into his pocket. Certainly the amount did not reach the pocket of the accused on demand by him. In my opinion, the version given by P.W-1 in Court on oath is entitled to more weight than other versions contained in record. 5) P.W-1 deposed in cross-examination by the Special Public Prosecutor in the lower Court that as per the original agreement, he had to complete the work by June, 2000 and that he completed the work by March, 2001 with delay of 9 months and that therefore, he filed an application to the accused in March, 2001 through the Executive Engineer Kavali for extension of time to execute the work and that he submitted Ex.D-1 stamped supplementary agreement along with extension letter. He says that by the date of Ex.P-1 report he was aware that his application for extension of time was pending with the Government after it was forwarded by the accused. P.W-1 admits that final bill cannot be passed unless extension of time is granted by the Government and fresh agreement Ex.D-1 is entered into. But, P.W-3 who is the then Executive Engineer, Panchayat Raj, Kavali deposed that in order to pay final bill amount to P.W-1, extension of agreement time has to be approved by the Chief Engineer and that they can pay the amount by deducting 5% of total agreement amount even before the time is extended or for the agreement. At any rate, it was P.W-3 who is the competent engineer who makes payment of final bill or any other bill relating to the contract. The accused was the authority to recommend and forward the application of the contractor to the Chief Engineer or to the Government for extension of agreement time, so that the contractor will get full amount instead of getting amount with imposition of 5% cut therein. There is no evidence on behalf of the prosecution to show that any final bill was prepared by the hierarchy of engineers and it is pending with any engineer of Panchayat Raj Department in Nellore District. In the absence of extension of agreement time and in the absence of preparation of final bill after verification of the work and making check measurement in M-book, the question of making final bill payment that too by the accused will never arise at all. From the above circumstances, it is evident that there was no official favour pending with the accused by the date of trap. 6) It is evident that P.W-1 resorted to giving Ex.P-1 report to P.W-5 and tried to involve the accused in a false trap, on ill advise given by his colleagues. Realising the same immediately on 22.05.2001, P.W-1 gave Ex.A-2 notarised affidavit and sent the same to all the authorities concerned to the affect that he was mislead by his colleagues for giving Ex.P-1 report and for involving the accused in a false trap. 7) Placing reliance on B.Noha V. State of Kerala[1] of the Supreme Court, it is contended by the Special Public Prosecutor that when receipt of tainted cash by the accused is proved by the prosecution from the evidence of P.Ws 4 and 5 and Ex.P-16, the burden is on the accused to prove as to how it reached him and that the Court has to presume that M.O-3 tainted cash was received by the accused in pursuance of his demand for doing official favour. In B.Noha (1 supra) there was evidence of the defacto- complainant/P.W-1 as well as accompanying witness P.W-2 to prove that the accused therein received the tainted cash in pursuance of the demand made by him. In those circumstances, the Supreme Court held that when it is proved that there was voluntary and conscious acceptance of the money; there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive and that it has to be deduced from the facts and circumstances established in the particular case. In the case on hand, there is no proof by the prosecution about voluntary and conscious acceptance of M.O-3 tainted cash by the accused. As per P.W-1’s version, M.O-3 tainted cash reached the pocket of the accused when he placed the said currency notes into his shirt pocket when the shirt was hanging to a hanger in his office room during his absence. Even as per spot explanation given by the accused in Ex.P-16 post-trap proceedings, it is version of the accused that P.W-1 after making enquiry about extension of agreement period and forwarding of his letter for such extension to the Chief Engineer, placed wad of currency notes on his table and that he refused to receive the same and that when he was looking into the files, P.W-1 thrusted M.O-3 cash into his pocket. As per both the versions, receipt of amount by the accused was neither voluntary nor conscious. There is no proof of acceptance of the money as such. There is no accompanying witness employed by the investigating agency to follow P.W-1 into the office room of the accused. Therefore, in the absence of proof of demand and acceptance by the prosecution, the question of presumption under Section 20(1) of the Act coming into play, will never arise at all. 8) In Banarsi Dass V. State of Haryana[2], the Supreme Court held as follows: “11. 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.” 9) Having regard to the above fact situation and legal position, this Court is satisfied that the finding of not guilty recorded by the lower Court against the accused is reasonable and justified. There are no reasons to come to a different conclusion by this Court in this appeal. 10) Accordingly, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J April 29, 2011 ksh [1] (2006)12 Supreme Court Cases 277 [2] AIR 2010 Supreme Court 1589