HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.727 OF 2007 DATE: 18.08.2010 Between: U. Venkata Ramana …… Petitioner. And: The State, rep. by Inspector of Police, Anti Corruption Bureau, Kadapa, by Spl. PP, High Court of AP. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.727 OF 2007 JUDGMENT: 1. The appellant was working as Assistant Engineer (Operation) in Andhra Pradesh State Power Distribution Corporation Limited (APDCL), Chapadu Section, Kadapa District. On 06.01.2003, the appellant was trapped by Anti Corruption Bureau (ACB) officials and was caught red- handed when the appellant received Rs.1,500/- from P.W.1. It is alleged that P.W.1’s wife Narayanamma is having Ac.1.73 cents of agricultural land in Chiyyapadu village and that P.W.1 dug a bore well in that land belonging to his wife and applied for agricultural electric service connection in the office of the accused on 15.11.2001 in the name of his wife and that P.W.1 obtained demand draft for Rs.5,000/- on 31.07.2002 for erection of line for giving service connection and handed over the demand draft to the accused and obtained official receipt therefor. It is further alleged that P.W.1 is also having Ac.1.56 cents of agricultural land in the same village in his name and he also dug bore well in that land for watering the fields and applied for agricultural service connection in the office of the accused in first week of December, 2002. It is the prosecution case that P.W.1 approached the accused several times and requested for erection of line and for giving service connection in the name of his wife and that on 26.12.2002 P.W.1 approached the accused and requested for erection of line and to prepare estimate for agricultural service connection in his name and that the accused demanded Rs.2,000/- as bribe for erection of line and giving service connection in the name of P.W.1 and to prepare estimation therefor and that when P.W.1 expressed his inability to pay the bribe, on 04.01.2003, the accused reiterated his earlier demand, but reduced the bribe amount to Rs.1,500/- and asked P.W.1 to get the same on 06.01.2003 morning and pay bribe to him and that P.W.1 had no other go and accepted to pay bribe to the accused. Thereupon, P.W.1 approached Deputy Superintendent of Police, A.C.B, Tirupati range (P.W.8) and gave report to him. P.W.8 registered the same as case in Crime No.2/RCT- TCD/2003 on 06.01.2003 and pre-trap proceedings took place in the office of Inspector of Police, ACB, Kadapa under the cover of Ex.P-5. Subsequently P.W.1 along with P.W.2 went to office of the accused at about 9.30 a.m. While P.W.2 was standing by the side of door of office room of the accused, P.W.1 went inside of that office room. It is alleged that on seeing P.W.1, the accused demanded and accepted bribe of Rs.1,500/- from P.W.1 for doing official favour. Thereafter when P.W.2 gave signal, ACB officials along with mediators entered into office room of the accused and seized tainted cash of Rs.1,500/- covered by M.O.5. When two hand fingers of the accused were dipped in Sodium Carbonate Solution, it turned pink. Inner lining of left side pocket of shirt (MO-7) of the accused also turned pink when dipped in Sodium Carbonate Solution. At that place, Ex.P-10 mediators report was drafted. After obtaining necessary sanction for prosecution of the accused, P.W.9 Inspector, ACB, Kadapa filed charge sheet in the court of Special Judge for SPE and ACB Cases, Nellore. The lower court framed two charges against the accused for offences punishable under Sections 7 and 13(1) (d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). The accused pleaded not guilty of the charges. During trial in the lower court, the prosecution examined P.Ws.1 to 9 and marked Exs.P-1 to P- 18 and M.Os.1 to 8. On behalf of the accused, D.Ws.1 to 7 were examined and Exs.D-1 to D-6 were marked. After considering entire material on record, the lower court found the accused guilty under both the charges and convicted him accordingly; and sentenced him to Rigorous Imprisonment for one year and fine of Rs.1,000/- under Section 7 of the Act, and Rigorous Imprisonment for one year and fine of Rs.1,000/- under Section 13(1)(d)/13(2) of the Act. Hence, this appeal by the accused. 2. In this appeal, the appellant’s counsel did not dispute recovery of M.O.5 tainted cash of Rs.1,500/- from possession of the accused by the ACB officials under the cover of Ex.P-10 mediators report. It is contended by the appellant’s counsel that the accused received Rs.1,500/- from P.W.1 on that day not as bribe, but towards repayment of part of loan out of Rs.2,000/- obtained by P.W.1 from the accused earlier. There is no foundation in record with regard to the accused obtaining any loan of Rs.2,000/- from P.W.1 prior to 06.01.2003. P.W.1 denied the said suggestion in his cross-examination. D.W.1 was examined and Ex.D-1 was marked on this aspect. D.W.1 is an Advocate at Proddutur. It is his evidence that on behalf of P.W.1, he gave Ex.D-1 reply notice for the notice got issued by the accused. In Ex.D-1, P.W.1 admitted borrowing of Rs.2,000/- from the accused on 09.10.2002, as alleged in the notice dated 25.05.2004 got issued by the accused to him. Ex.D-1 is dated 26.02.2004. Both notice of the accused and reply of P.W.1 are long subsequent to the trap proceedings on 06.01.2003. Therefore, the said exchange of notices between the accused and P.W.1 long after the date of offence cannot have any bearing in deciding truth of the defence version. P.W.1 in cross-examination denied giving of Ex.D- 1 notice and denied his signature therein. Assuming for the sake of argument that Ex.D-1 got issued by P.W.1, it cannot have any adverse result on prosecution case because it is a document post litem motim. 3. It is contended by the appellant’s counsel that the accused gave the above explanation spontaneously when the ACB officials questioned him about possession of M.O.5 cash of Rs.1,500/- with him. P.W.2 is Junior Accountant in District Treasury Office, Kadapa. He and another who is Sub Treasury Officer in the District Treasury, Kadapa functioned as mediators for the trap. He signed as such in Ex.P-5 pre- trap proceedings and in Ex.P-10 post trap proceedings. P.W.2 in his cross-examination admitted that the accused in his spontaneous statement stated that he did not demand any money from P.W.1 at any time and he gave Rs.2,000/- as loan to P.W.1 who returned Rs.1,500/- to him on that day and as such he has accepted the money from P.W.1. Ex.P-10 post trap proceedings reads that when P.W.8 enquired as to why he collected Rs.1,500/- from P.W.1 on demand, the accused confessed the offence and pleaded for mercy. Ex.P-10 further reads that after a while, the accused started telling that he did not demand any money from P.W.1 at any time and that he gave Rs.2,000/- as loan to P.W.1 and that P.W.1 returned Rs.1,500/- to him on that day and as such he accepted the money from him. Thus, this explanation of the accused was not spontaneous much less immediate in point of time. Though, the accused originally admitted his guilt and prayed for mercy, subsequently after some time, the accused changed his version and came forward with the present version. No doubt, the alleged confession of the accused and pleading for mercy contained in Ex.P-10 may not be relevant and decisive, but at the same time, if the explanation given by the accused is considered in the context of events, it is absolutely clear that loan theory put forward by the accused is the result of after thought and is not a spontaneous explanation offered by the accused to the raid party. Therefore, this Court cannot place any reliance on the defence plea based on loan theory. I find that this loan theory is unacceptable in the circumstances of the case. 4. It is next contended by the appellant’s counsel that there was no bore well in P.W.1’s land in order to give any agricultural electric service connection for the same. The accused examined D.Ws.2 to 4 on this aspect. D.W.4 is another Advocate at Proddutur who was appointed as Commissioner in O.S.No.251 of 2003 on the file of Principal Junior Civil Judge, Proddutur to inspect whether there is bore well in P.W.1’s land in S.No.584/2. After local inspection, D.W.4 filed Ex.D-5 report along with plan in that Court. He says that as per his observation, there is no bore well in S.No.584/2, much less any crops in and around that land. D.W.3 is the then Mandal Revenue Officer, Chapadu Mandal. He says that when D.W.2 who is the Inspector of Police, Vigilance and A.P.T.F Police Station, Kadapa requested him to enquire and report whether bore well was installed in S.No.584/2 of P.W.1, he deputed Mandal Surveyor of his office who in turn inspected the land in S.No.584/2 and submitted report along with his sketch stating that no bore well is existing in S.No.584/2. Ex.D.4-A is report of the Mandal Surveyor with plan. Thus, D.W.3 has no personal knowledge about existence or non existence of a bore well in S.No.584/2 of P.W.1. D.W.2 is stated to have made enquiry on this aspect when Superintendent Engineer (Operation Circle), APSPDCL, Kadapa addressed letter Ex.D-2 dated 24.07.2003 and also when Ex.D-3 written representation dated 08.05.2004 of the accused was enclosed to Ex.D-2. D.W.2 says that his enquiry revealed that bore well was not existing in the land of P.W.1 and that false certificate was issued by Assistant Panchayat Secretary, Chiyyapadu and that Assistant Line Man issued LT sketch with regard to material required for electrical service connection to the bore well which is not existing. The so-called enquiry of D.W.2 is based on report of D.W.3 Mandal Revenue Officer who has no personal knowledge. Ultimately either D.W.2 or D.W.3 based his conclusion on Mandal Surveyor’s report. The said Mandal Surveyor is the material witness and he was not examined. D.Ws.2 and 3 are not competent to speak about conclusions based on Mandal Surveyor’s report. 5. As can be seen from Ex.D-5 report of the Commissioner D.W.4, it is evident that it was a suit filed by the accused against P.W.1 subsequent to the trap in this case. In that report, D.W.4 stated that when he offered notice to the respondent who is P.W.1 herein, P.W.1 refused to take notice, stating that if ACB officers permit him to take notice he would take. It is evident that that accused resorted to that suit with a view to secure defence evidence for him. It is contended by the Special Public Prosecutor that it is immaterial for the purpose of this case whether there is bore well or not in S.No.584/2 belonging to P.W.1 in that village and that the only relevant question would be whether there was any official favour pending with the accused for which the accused demanded and accepted bribe of Rs.1,500/-. Admittedly, two applications for agricultural electric service connection were pending in the office of the accused, one relating to P.W.1’s wife Narayanamma and the other relating to P.W.1. It is contended that Narayanamma though cited as witness in the charge sheet, was not examined by the prosecution and that Narayanamma was divorced wife of P.W.1. Simply because there is no bore well in the land of P.W.1, it will not follow that there is no official favour pending with the accused for P.W.1. If P.W.1 applied for agricultural electric service connection to his land by falsely representing that there is bore well in his land, it may constitute an offence against P.W.1 for his prosecution, just as the officials who issued false certificates to P.W.1 were taken to task by their respective departments. It may be that P.W.1 intended to do some business with the electricity obtained by him through agricultural service connection in a clandestine manner, because there was meager tariff rate in agricultural service connection. Bad intention on the part of P.W.1 to obtain agricultural electric service connection, will not absolve the accused from liability for demanding and accepting bribe from P.W.1. It is not known whether the accused demanded Rs.1,500/- from P.W.1 because he already knew that P.W.1 applied for agricultural electric service connection in a fraudulent manner even though there is no bore well in his land. 6. It is evidence of P.W.1 that on 26.12.2002 he approached the accused and enquired him about electricity connection of his wife and himself and that the accused demanded Rs.2,000/- as bribe for the said purpose and that on 04.01.2003 he again approached the accused at his office and the accused reiterated his earlier demand and that when he expressed his inability to pay such huge amount, the accused did not agree and on his repeated requests the accused reduced the amount of bribe from Rs.2,000/- to Rs.1,500/- and asked him to pay the amount on 06.01.2003 morning. But, P.W.1 went to A.C.B office, Kadapa on 06.01.2003 at 7.30 p.m and met P.W.8. Pre-trap proceedings covered by Ex. P-5 took place at that time in that office. It is further evidence of P.W.1 that by that time he reached office of the accused on the same day the accused came there on motor cycle and asked him to come inside the office and that after the accused sat in his seat, the accused demanded him to pay the bribe amount and that he gave the bribe amount of Rs.1,500/- to him and that the accused counted the cash and kept the same in his pocket and told him that he would do his work. P.W.1 says that the file containing his application was on table of the accused. At that time, the ACB raid party came inside office of the accused and thereafter post trap proceedings covered by Ex.P-10 took place. 7. As pointed out earlier, the accused does not dispute recovery of tainted cash of Rs.1,500/- by the A.C.B officials from his pocket, but only contends that the said amount represented part of loan amount repaid by P.W.1 to him. This Court disbelieved the loan theory put forward by the accused. 8. In Krishna Ram v. State of Rajasthan[1], the Supreme Court held that once it is proved that the money was recovered from possession of the appellant, the burden of presumption as contemplated under Section 20 of the Act shifts upon the appellant. This Court is of the opinion that the accused miserably failed to rebut the presumption under Section 20 of the Act. Apart from the presumption under Section 20 of the Act, there is evidence of P.W.1 which could not be taken in his cross-examination. The explanation given by the accused/appellant basing on loan theory, is a false explanation and it is neither probable nor reasonable. 9. It is contended by the appellant’s counsel that on 06.01.2003, the appellant/accused attended Janmabhoomi work along with Nodal Officer and that a certificate to that effect. Ex.A-6 was given by the Nodal Officer, Chapadu. This contention of the appellant does not fit in having regard to loan theory put forward by the appellant with a view to explain seizure of tainted cash from his pocket. 10. Even though several grounds are raised in the grounds of appeal, the appellant’s counsel did not make any submissions except on the above points. 11. On consideration of the entire material on record, this Court has absolutely no hesitation to conclude that the accused demanded and accepted Rs.1,500/- towards bribe from P.W.1 and that he derived pecuniary advantage by using his official position. I accept finding of guilty of the accused recorded by the lower court under Sections 7 and 13(1)(d)/13(2) of the Act. 12. In the result, the appeal is dismissed. ___________________________________ SAMUDRALA GOVINDARAJULU, J August 18, 2010 GK HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.727 OF 2007 Date: 18.08.2010 Gk. [1] (2009) 11 Supreme Court Cases 708