THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.658 of 2004 BETWEEEN: State rep. by Inspector of Police. … Appellant AND 1. Ch.Rama Rao & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.658 of 2004 JUDGMENT: This is an appeal against acquittal. A1 was working as Deputy Statistical Officer in Municipal Corporation of Visakhapatnam. A2 was working as Public Health Assistant in Municipal Corporation, Visakhapatnam. The Special Judge for ACB cases, Visakhapatnam by judgment dated 16.10.2003 in CC.No.35 of 2000 (old CC.No.13 of 1995) acquitted A1 and A2/respondents 1 and 2 of the charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act (in short, the Act). 2. It is the prosecution case that PWs 2 and 4 entrusted PW1 with the job of obtaining birth certificates of their children and that when PW1 met the second accused on 27.08.1993 at the office for the said purpose, A2 demanded Rs.500/- for issuing the certificates and that when PW1 pleaded his inability to pay the said amount, A2 reduced the same to Rs.300/- and asked PW1 to pay Rs.150/- and take the first certificate. According to the prosecution, out of Rs.150/-, A2’s share is Rs.50/- and Rs.100/- was meant for A1. Thereupon, PW1 gave Ex.P1 report to the DSP, Anti Corruption Bureau (ACB), Visakhaptnam. PW5 collected two mediators including PW3 and arranged trap for A1 and A2. Ex.P7 is pre-trap proceedings dated 02.09.1993. According to the prosecution, A1 and A2 were successfully trapped on 02.09.1993 in their office and MO.7 tainted cash of Rs.150/- was recovered from possession of A1 and A2 to the extent of Rs.100 and Rs.50/- respectively. Plea of A1 and A2 is one of not guilty. Though in the lower Court A1 and A2 contented that one Eswara Rao got them falsely trapped to prevent their promotions and to get their seats changed in the office, the accused did not lead any evidence in support of their contention. According to A2, Eswara Rao sent the money towards repayment of loan. The said loan theory is also not substantiated by the accused in the lower Court. 3. During trial in the lower Court, PWs 1, 2 and 4 turned hostile to the prosecution. It is evidence of PW1 that on the advise of Eswara Rao, he gave Ex.P1 report to ACB, though he was not willing to give such report. It is his further evidence that on the date of trap when he went to the office of the accused, A1 and A2 were not available and that when he returned to ACB party, Eswara Rao advised him to wait for some time so that A1 and A2 would return to the office to issue birth certificates after taking the tainted amounts. PW1 further says that when he went again at about 3:00 PM, A1 and A2 were available in their respective seats and they were busy in attending their work and that when he approached A1, he was about to go to some other room in that office holding a file in his hands and that at that time, he kept Rs.100/- in the table drawer of A1 and that thereafter, he went to A2 and offered the remaining amount of Rs.50/- and that when A2 questioned as to why he was giving the said amount to him, he told A2 that Eswara Rao sent amount to him and that so saying, he gave Rs.50/- to A2 who accepted the same. Thus, there is no evidence of any demand of any bribe or illegal gratification by A1 or A2 much less acceptance of the amounts by A1 and A2 towards bribe or illegal gratification. Evidence of PWs3 and 5 about recovery of MO.7 tainted cash at the rate of Rs.100/- from A1 and Rs.50/- from A2 under the cover of Ex.P13 post trap proceedings and about hand rinses of A1and A2 turning pink in Sodium Carbonate solution, cannot have any effect against A1and A2, in the absence of proof of demand and acceptance of the amounts as bribe or illegal gratification by the accused, mere recovery of tainted cash from their possession will not attract the presumption under section 20 of the Act (Banarsi Dass Vs. State of Haryana[1]) Thus, the prosecution miserably failed to prove its case. Having regard to the above evidence on record, the lower Court came to a right conclusion in finding A1 and A2 not guilty of the charges. There are no reasons to come to a different conclusion in this appeal. 4. Accordingly, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 28.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.658 of 2004 DATED: 28.04.2011 ysk [1] AIR 2010 SUPREME COURT 1589