THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1582 of 2004 BETWEEEN: State: rep. by Inspector of Police. … Appellant AND P.Seshagiri Rao … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1582 of 2004 JUDGMENT: The accused/respondent was working as Executive Engineer, Operation and Maintenance Division, Nagarjuna Sagar Project at Addanki of Prakasam District. By judgment dated 19.02.2004 in CC.No.1 of 1999, the Special Judge for SPE and ACB cases, Nellore, acquitted the accused of the offences punishable under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). Aggrieved by the same, the State filed this appeal questioning acquittal of the accused. 2. PW1 was working as typist in office of the accused. PW1 applied for allotment of quarter bearing No.B-35 in Nagarjunasagar Project colony at Addanki. It is alleged that when PW1 met the accused and requested him for allotment of quarter to him, the accused demanded for bribe of Rs.2,000/- for doing the said favour and that when PW1 expressed his inability to meet the said demand, the accused asked PW1 to pay Rs.1,000/- within two days and to pay balance of Rs.1,000/- after allotment. With the said allegations, PW1 gave Ex.P2 report on 16.08.1998 to PW7, Inspector of Police, Anti Corruption Bureau (ACB), Ongole. Thereupon, PW8, Deputy Superintendent of Police, ACB, Nellore Range, Nellore, organized trap for the accused on 17.06.1998. It is alleged that the trap was successful and that the accused was caught red-handed with MO.3 tainted amount of Rs.1,000/-. Plea of the accused is one of not guilty. It is his case that PW1 gave MO.3 cash to him towards repayment of loan obtained by PW1 from him 15 days earlier. The lower Court accepted loan theory advanced by the accused and found him not guilty of the charges. 3. In this appeal, it is contended by the Special Public Prosecutor that in view of unshaken evidence of PW1 in cross- examination, the lower Court should not have accepted the loan theory put forward by the accused. The Special Public Prosecutor requested this Court to reassess the evidence on record and come to a conclusion in favour of the prosecution. 4. There is no dispute of the fact that PW1 gave Ex.P1 application dated 14.05.1998 for allotment of residential quarter to him in Nagarjunasagar Project colony at Addanki. PW6, who was the then Superintendent in the same office, received Ex.P1 on the same day with initial of the accused and direction of the accused to him to put up note on the said application. PW6 prepared Ex.P15 note on Ex.P1 application of PW1. The said note was prepared on 12.06.1998. It shows that quarter No.B-35 was in occupation of S.K.Mustaf, Driver. The said driver, Mustaf, retired from service on 31.12.1997. He did not apply for permission for further continuation of occupation in the same quarter after his retirement. Therefore, not only PW1, but also another by name B.Anjaneyulu, Attender applied for allotment of that quarter. In Ex.P15 note, PW6 after giving details of the applications of both the aspirants and service particulars of both of them, finally stated that PW1 was eligible for allotment of quarter No.B-35 on vacation. It shows that the quarter was not physically vacated. It was in occupation of a retired employee. The lower Court observed that since the quarter was not lying vacant, it cannot be said that the accused was in a position to allot the said quarter to any of the applicants and that it follows that there was no official favour pending with the accused by the date of trap. The question of allotment of the quarter was on paper and it takes into effect only after the occupier physically vacates the said quarter. For allotment of that quarter which is likely to be vacated by the occupant, there were two applications of the aspirants. In case allotment of quarter cannot be made unless physical vacation was made by the occupier, PW6 should have prepared Ex.P10 note with final suggestion that the applications may be rejected until the quarter is ultimately vacated physically by the occupant, as the applications were premature. It was not the note conclusion of PW6. PW6 in Ex.P15 concludes by suggesting that PW1 was eligible for allotment of quarter No.B-35 on vacation. The said note along with Ex.P1 application of PW1 were lying with the accused by the date of trap. Therefore, the conclusion arrived at by the lower Court that there was no official favour pending with the accused by the date of trap, is not correct. 5. It is evidence of PW1 that on two prior occasions, the accused demanded bribe from him. The lower Court disbelieved the evidence of PW1 about the accused making two earlier demands for bribe on the ground that the said facts do not find place in Ex.P2 report given by PW1 to PW7. According to PW1, at the time of giving promotion to him from the post of Record Assistant to the post of typist, the accused demanded for a bribe of Rs.5,000/- and as he did not oblige his demand for bribe of Rs.5,000/-, the accused delayed his promotion. But, it is not evidence of PW1 that he made any payment of the alleged bribe of Rs.5,000/- demanded by the accused from him for his promotion. PW2 was the then senior assistant working in the same office. At the time of giving promotion to PW1, the accused was holding charge of Superintending Engineer of the unit also. PW2 says that the accused signed in the promotion proceedings of PW1. In cross-examination, he says that PW1 got his promotion in routine course and that except administrative delay in issuing promotion order to PW1, there was no specific delay. 6. It is evidence of PW1 that previously, he applied for loan from Government Provident Fund (GPF) and that in that connection, the accused demanded bribe of Rs.,2,000/- from him. PW3 was then Junior Assistant in the same office of PW1 and the accused. He says that during May 1998, PW1 applied for GPF temporary advance of Rs.6,000/- and that he put up the note to the accused on the said GPF advance application of PW1 and that the same was sanctioned by the accused during the same month. In cross- examination, PW3 says that GPF loan was sanctioned and paid to PW1 in normal course and that there was no delay in sanctioning GPF advance or any payment of GPF loan amount to PW1. PW1 did not make any complaint to anybody about the alleged two previous instances of demanding for bribe by the accused either at the time of PW1’s promotion or at the time of sanctioning of GPF loan to PW1. In my opinion, the said allegations are totally irrelevant for the purpose of this case. It appears that PW1 made the said allegations only with an intention to malign the accused. 7. Gravemen of charge in the present case is about demand and acceptance of bribe of Rs.1,000 by the accused on 17.06.1998 during the course of trap. As pointed out earlier, there is no dispute about the accused receiving MO.3 tainted cash of Rs.1,000/- from PW1 on 17.06.1998 during morning hours at his official residence which is at a distance of about 40 yards from his office. In Ex.P8 post-trap proceedings, when the trap laying officer/PW8 recovered MO.3 from possession of the accused and questioned the accused about the same, the accused stated that PW1 came to him to request for allotment of quarter for him and that PW1 repaid an amount of Rs.1,000/- taken by him as hand loan about 15 days prior to it. It was the spontaneous explanation given by the accused during the course of trap to the trap-laying officer. The said spontaneous explanation of the accused is relevant under Section 8 of the Evidence Act. So, ultimately it has to be determined in this appeal whether the accused received MO.3 from PW1 as bribe demanded by him or as refund of hand- loan obtained earlier by PW1 from him. PW1 denied the suggestions that the accused never demanded for any bribe from him for allotment of residential quarter and that he paid MO.3 cash to the accused by way of refund of loan obtained by him on earlier occasion. 8. PW1 in cross examination admits that servant boy of the accused and retired Attender, Mekala Venkaiah were present in the open yard of house of the accused when he entered into the compound of the accused during morning hour of 17.06.1998 and that they questioned him about the purpose of his visit to the accused and that when he informed them about his intention to meet the accused, both of them went inside and that thereupon, he went into varandah of the house. It is in that varandah, MO.3 tainted cash of Rs.1,000/-was passed on by PW1 to the accused. DW1 is the said servant boy of the accused who was present in his house on the date of trap. He belongs to Bayyanagudem of Koyyalagudem Mandal of West Godavari District. According to DW1, he was working in house of the accused as servant boy during the year 1997 on the accused providing food for him and paying Rs.2,000/- per year to him. Presence of DW1 at the time of trap is not in dispute. PW1 himself did not dispute his presence at that time. It is evidence of DW1 that on 17.06.1998 at about 7:00 AM, PW1 came to house of the accused and enquired about the accused and that he asked about availability of the accused and that when he asked PW1 as to why the accused was required by him, PW1 told him about he having work with the accused and that he went inside and called the accused and that the accused told him that he was coming, and that in the meanwhile, PW1 came into the varandah and that the accused also came into the varandah and that the accused asked PW1 as to why he came there and that PW1 informed the accused about his intention to discharge hand-loan of Rs.1,000/- taken from the accused, which amount he brought along with him. It is further stated by DW1 that PW1 uttered that he felt insulted when the accused asked him to pay hand-loan of Rs.1,000/- in the presence of all staff members in the office. He says that when PW1 handed over the amount, the accused received the same. 9. Apart from what was transpired at the time of handing over of MO.3 tainted cash by PW1 to the accused, there is evidence of DW2 and PW6 also with regard to the loan affair between PW1 and the accused. DW2 was then working as Assistant Engineer in the same office. It is evidence of DW2 that about twenty days prior to the trap, PW1 requested the accused for hand loan of Rs.1,500/- in the presence of himself and other staff members and that initially the accused expressed about he not possessing the money, but subsequently the accused lent Rs.1,000/- to PW1. DW2 says that PW1 borrowed the said amount from the accused on the ground that one of his family members fell sick and the amount was required for treatment. He says that at the time of giving Rs.1,000/- to PW1, the accused asked PW1 to repay the said amount in ten days. DW2 further deposed that about one week thereafter, the accused demanded PW1 to return the amount borrowed by him and that there was quarrel between the accused and PW1 in that connection and that the quarrel ensued between them when the accused demanded PW1 to repay the loan amount. PW6 also in cross-examination deposed that about one week prior to the date of trap, there was verbal altercation between PW1 and the accused with regard to the amount returnable by PW1 to the accused. In further cross- examination by the Special Public Prosecutor, PW6 deposed that he does not know as to what amount and how much amount was indebted by PW1 to the accused. Evidence of PW6 and DW2 reveal there being a wordy altercation between the accused and PW1 with regard to refund of loan amount taken by PW1 from the accused. The said verbal altercation was few days prior to the date of trap. In those circumstances, the lower Court came to the conclusion that PW1 was bent upon giving false report against the accused involving him in a false trap while making repayment of loan amount to the accused. 10. Apart from oral evidence of DW2 with regard to advancing of hand loan by the accused to PW1 to the extent of Rs.1,000/-, there is circumstantial evidence also which supports the said evidence. It is contended by the Special Public Prosecutor that at the time of Ex.P8 post-trap proceedings, the accused expressed that there was no proof with him for the loan advanced by him to PW1. If there was any documentary proof, it will not be termed as hand loan. The fact that the transaction between PW1 and the accused was a hand-loan, indicates that there is no documentary proof for the same. DW2 who happens to be present at the time of PW1 requesting the accused for loan and the accused making payment of Rs.1,000/- to PW1 as hand-loan, spoke to the said fact. Another admitted fact is that in May 1998 itself, PW1 applied for GPF temporary advance of Rs.6,000/- and obtained the same on the ground that his mother fell sick and was hospitalized in a private nursing home. The said fact reinforces the contention that PW1 was hard-pressed for money and he was seeking loan for meeting the expenditure for treatment of his mother, who was hospitalized in a private nursing home. In the light of the above evidence and circumstances on record, I am of the opinion that the lower Court rightly believed loan theory advanced by the accused in this case. There are no infirmities in the judgment passed by the lower Court, much less, it is neither highly unreasonable nor unjust. I find that there are no grounds in this appeal to interfere with the finding of acquittal recorded by the lower Court. 11. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 27.06.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1582 of 2004 DATED:27.06.2011 ysk