THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.1969 of 2004 AND CRIMINAL APPEAL No.1970 of 2004 CRIMINAL APPEAL No.1969 of 2004 BETWEEEN: Gadayakari Dhyrya Lakshmi … Appellant AND State- rep. By A.C.B. … Respondent CRIMINAL APPEAL No.1970 of 2004 BETWEEEN: Reddy Ranga Prasada Rao … Appellant AND State- rep. By Inspector of Police, ACB … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1969 of 2004 AND CRIMINAL APPEAL No.1970 of 2004 JUDGMENT: Appellant in Crl.A.No.1970 of 2004 is the first accused/A-1 and he was working as Additional Assistant Engineer in Andhra Pradesh State Electricity Board at Jangareddigudem of West Godavari District. Appellant in Crl.A.No.1969 of 2004 is the second accused/A-2 and he was working as Assistant Divisional Engineer in Andhra Pradesh State Electricity Board at Jangareddigudem. By Judgment dated 26.08.2004 in CC.No.59 of 1992, the Special Judge for SPE and ACB Cases, Vijayawada, convicted A-1 and A-2 of the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced both of them to simple imprisonment for two years and fine of Rs.2,500/- each on both the counts separately. Aggrieved by the said convictions and sentences passed by the lower Court, A-1 and A-2 filed these two appeals separately. 2. P.W.1 was running a seasonal factory as Managing Partner of M/s. Maruthi Food Products at Jangareddigudem for crushing mangoes for preparation of mango juice. Since PW.1 did not pay electricity bills, electricity connection to his factory was disconnected by the Electricity Board. PW.2 paid entire arrears of electrical energy to the Board and obtained re- connection order on 01.06.1991. Since Officers of the Board did not give electrical connection, P.W.1 took electricity connection through his workers and started crushing work in his factory on 01.06.1991 as ripe mangoes of about 165 tonnes were already secured. Noticing the same, A-1 and A-2 went to factory premisis of P.W.1 along with the police and others and disconnected the electricity supply. It is alleged that A-1 and A-2 demanded Rs.10,000/- as bribe for giving electricity connection on the same night and to reduce the penalty and that on request made by P.W.2, A-1 and A-2 finally reduced the bribe to Rs.7,000/- for showing the said official favour by reducing the penalty to be imposed from huge amount to Rs.2,800/- for illegal consumption of electrical energy by P.W.1 and also for illegal restoration of electricity supply to his factory. With the said allegations, PW.2 gave Ex.P-4-Report to P.W.11, Deputy Superintendent of Police, Anti-corruption Bureau (ACB), Eluru Range, on 05.06.1991. After issuing Ex.P-39-F.I.R. on the basis of Ex.P-4-Report, P.W.11 organized trap for the accused on 06.06.1991 in the presence of Mediators including P.W.4. P.W.4 was working as Assistant Executive Engineer in Irrigation Department at Eluru. Before proceeding for the trap, pre-trap procedures were conducted at Eluru under the cover of ExP.25- Mediator’s Report. During trap, P.W.2 accompanied P.W.1. P.W.2 was working as Chemist in P.W.1’s factory. It is alleged that the trap was successful and that A-1 was caught red- handed with possession of M.O.1-tainted cash of Rs.7,000/-. Plea of A-1 and A-2 is one of not guilty. A-1 further pleaded that while handing over Exs.P-5 to P-13-Demand Drafts for various amounts to him, P.W.1 kept M.O.1-cash in the middle of those demand drafts and that when he was questioning P.W.1 about it, the trap officials entered his house and caught him. After full trial, the lower Court found A-1 and A-2 guilty of the charges leveled against them. 3. In this appeal, the senior counsel appearing on behalf of both A-1 and A-2 took me through the entire oral and documentary evidence in this case and contended that appreciation of evidence by the lower Court is not proper and that conclusion arrived at by the lower Court is not based on proper reading of the material on record. 4. In order to prove the charges levelled against A-1 and A-2, the prosecution has to establish that there was demand for bribe made by A-1 and A-2 and that M.O.1-tainted cash was accepted by A-1 in pursuance of the said demand and that the bribe amount was received for doing official favour by A-1 and A- 2 to the de facto complainant/P.W.1. To prove demand and acceptance, the prosecution examined P.Ws.1 and 2. It is contended that P.W.2 being an employee of P.W.1, is not an independent witness and he was under the influence of P.W.1. It is further contended that P.W.1 was habitual offender in pilfering electrical energy by unauthorized means and that he was a chronic defaulter of electricity charges and that many times, officials of the Board disconnected electricity supply for misfeasance and non-feasance of P.W.1 and that there is every motive for P.W.1 to come up with false case and that therefore, P.W.1’s evidence is not liable to be accepted. 5. There is no doubt that P.W.1 had four electricity service connections either in his name or in the name of his father. S.C.No.2010 of Jangareddigudem is Category-III connection meant for mango juice extraction plant of M/s.Maruthi Food Products. S.C.No.403 of Jangareddigudem is an agricultural service. S.C.No.128 of Guruvaigudem is another agricultural service standing in the name of P.W.1’s father. S.C.No.252 of Jangareddigudem is a domestic service connection for his residential house standing in the name of P.W.1’s father. P.W.1 in cross-examination admits that by 29.05.1991 and 01.06.1991, S.C.No.408 (mistake for 403) was being used by him for the purpose of M/s.Maruthi Food Products. Ex.P-21 is Inspection Report of A-2 in which P.W.1 also signed; and it relates to S.C.No.403. The complaint therein was that P.W.1 was using the said service connection on 29.05.1991 during the period of its disconnection. Ex.P-22 is another Inspection report relating to S.C.No.252 in respect of misuse of electrical energy. Ex.P-18 is notice issued by A-2 on 18.09.1990 to P.W.1’s father K. Bhaskara Rao calling upon him to pay Rs.3,000/- towards value of electrical energy misused by him through S.C.No.128 as per inspection made on 07.08.199-. Ex.P-16 is notice issued by the Assistant Accounts Officer, Electricity Revenue Office, Nidadavole, to the accused for payment of Rs.4,334.82 Ps. outstanding as malpractice charges in respect of S.C.No.2010 of P.W.1’s factory. P.W.1 admits that Electricity Revenue Officer, Nidadavole, approached him with a view to restore electricity and asked him to pay Rs.15,000/- as first installment. P.W.1 does not remember what was the entire demand out of which he paid Rs.15,000/- as first installment. Finally, after disconnection of electricity was made to P.W.1’s factory on 29.05.1991, P.W.1 admittedly paid Rs.31,069/- in the Electricity Revenue Office at Nidadavole and obtained receipt on 01.06.1991 and also obtained order for re-connection of electricity through S.C.No.2010 of Jangareddigudem to his factory premisis. There are other instances of malpractice, misuse of electricity and unauthorized drawing of electrical energy during disconnection period through various service connections standing in P.W.1’s name or in his father’s name. 6. It is evidence of P.W.1 that after payment of Rs.31,069/- on 01.06.1991 and obtaining re-connection order, he went round the offices of A-1 and A-2 and also their residences from 1.00 p.m. onwards and could not find them and that when he finally went to his factory premisis, he noticed running of the factory by his workers by taking electricity connection to the factory by themselves. There is no dispute that on 01.06.1991, P.W.1’s factory was running by drawing electricity in unauthorized fashion by way of tapping overhead lines. On the night of 01.06.1991, P.W.1’s factory was not drawing electrical energy by regular means (i.e.) by obtaining re- connection of the line at electricity pole. P.W.1 also found on the night of 01.06.1991 when he came to the factory, several officials at his factory including A-1 and A-2 and their staff as well as the police. P.W.5 who was working as Sub-Inspector of Police, Jeelugumilli Police Station was one of the persons present at the factory premisis. P.W.5 went there along with electricity officials on the instructions of Inspector of Police, Kovvur, when P.W.5 went to his office for meeting. There is no dispute that on the night of 01.06.1991, unauthorized connection taken to the factory of P.W.1 from the overhead lines was disconnected by A-1 and A-2. Ex.P-23 is the Inspection Report prepared by A-2 at the factory premisis of P.W.1. In Ex.P-23, names of persons who were present at the time of inspection were noted. P.W.1 also signed in it. It was stated by P.W.1 in Ex.P-23 that he paid Rs.31,049.05 Ps. on that day towards arrears of charges relating to S.C.No.2010 and obtained re- connection order from Assistant Accounts Officer, Electricity Revenue Office, Nidadavole, and went to Assistant Engineer (Operations) for re-connecting the service and that in the meanwhile, his workers used a wire for lighting purpose. He prayed for excuse for the said mistake done by his unknown worker. On that night, A-1 and A-2, after inspection in the presence of police officials, disconnected electricity connection to P.W.1’s factory. It is contended for the appellants that searching for A-1 and A-2 by P.W.1 on 01.06.1991 from 1.00 p.m. onwards at their offices as well as residences, is far from truth and that when A-1 and A-2 were available at P.W.1’s factory when P.W.1 came to his factory on that night at about 7.00 p.m., P.W.1 cannot be believed to say that they were not available in their houses or offices from 1.00 p.m. to 6.00 p.m. on that day. It is evident that P.W.1 was in the habit of taking law into his own hands and doing whatever he wanted in relation to electricity service connections. Having paid huge amount of Rs.31,000/- and odd and obtaining re-connection order in respect of S.C.No.2010, P.W.1 could have taken proper and legal steps to get restoration of electricity supply to his factory. P.W.1 cannot be believed to say that A-1 and A-2 were not available either in their offices or residences from 1.00 p.m. to 6.00 p.m. on that day. 7. It is evidence of P.W.1 that at his factory, when he showed re-connection order to A-1 and A-2, they asked him to come to A-2’s house and that he was informed that since electricity was re-connected by his workers illegally, they would talk to the Divisional Engineer in that regard and he may impose penalty. P.W.1 says that he represented to A-1 and A-2 that if imposition of penalty was necessary, the same may be imposed by themselves because if re-connection of electricity is delayed, the process of extraction of mango juice would be hampered and mangoes would be spoiled, in which event he would sustain huge loss. According to P.W.1, he and P.W.2 went to house of A-2. P.W.1 says that A-2 informed him about talking to Divisional Engineer during night may not be proper, and asked him to go to house of A-1 and bring him, so that both of them would discuss and do something in the matter and that when he and P.W.2 went to A-1’s house and informed him about it, A-1 talked to A-2 on telephone and came along with them to A-2’s house and that A-1 asked them to wait outside and that A-1 went inside and had a talk with A-2 and came outside and informed that if P.W.1 paid total sum of Rs.10,000/- towards bribe and penalty, electricity re-connection to his factory would be given. According to P.W.1, the said demand was made at about 3.00 A.M. on 02.06.1991. P.W.1 says that when he expressed about non-availability of Rs.10,000/- with him on that day as he already paid Rs.31,069/- to the department, he was permitted to pay the said amount of Rs.10,000/- in two days and re-connection of electricity to his factory would be given on the same day. According to P.W.1, he could not meet A-1 or A-2 on 03.06.1991 and 04.06.1991 as there was bundh on one day and as it was Sunday on another day. According to P.W.1, he was sent for by A-1 on 05.06.1991 and when A-1 reminded him of payment of Rs.10,000/- inclusive of penalty and bribe, P.W.1 asked him to give details of penalty amount to be paid by him, so that he would take demand draft for the same. P.W.1 says that when A- 1 sent him to A-2, A-2 gave Ex.P-1-Slip of paper noting break- ups of amounts payable by P.W.1 to the department. It is only thereafter, P.W.1 approached P.W.11 at Eluru and gave Ex.P-4- Report. It is contended for the appellants that though the alleged demand for total sum of Rs.10,000/- inclusive of bribe and penalty was made on the night of 01.06.1991 itself, P.W.1 had chosen to give Ex.P-4-Report to P.W.11 on 05.06.1991 after receipt of Ex.P-26-Provisional Notice demanding payment of Rs.2,485/- towards penalty and electricity charges unauthorizedly drawn by P.W.1 on 01.06.1991. 8. At this stage, if the evidence of P.W.1 is reviewed once again, it is evident that either on the night of 01/02.06.1991 or 05.06.1991, A-2 did not make any demand for any bribe from P.W.1. It was only A-1 who is said to have made the demands. Though A-1 and A-2 are stated to have discussed with each other inside A-2’s house before A-1 coming out and demanding for total sum of Rs.10,000/- towards penalty and bribe, there is no evidence on record as to what was discussed by A-1 and A-2 inside the house of A-2. It is not P.W.1’s evidence that when A-1 demanded for total sum of Rs.10,000/- towards penalty and bribe, A-2 was also by his side at that point of time. In the absence of any express or tacit demand made by A-2 for bribe, this Court has to find that there is no proof of demand for bribe made by A-2 in this case on any date prior to the date of trap. Even on the date of trap, A-2 was not physically present at the house of A-1 where P.W.1 gave M.O.1-tainted cash of Rs.7,000/- to A-1. 8. During pre-trap proceedings, PW1 did not produce Exs.P-5 to P-13 demand drafts before the trap party. According to PW.1, Exs.P-5 to P-13 demand drafts were handed over to him by one Paul at Jangareddigudem when he and P.W.2 were going towards the house of A-1 from travelers bungalow where the trap party stayed. The said Paul/Bobba Rajapala Kumar was examined as D.W.1. The lower Court discarded evidence of D.W.1 on the ground that there was no proof to show that D.W.1 was working in the factory of P.W.1. Even as per the prosecution case, D.W.1 was one of the persons who was working in P.W.1’s factory at that point of time. The prosecution cited him as 12th witness in the charge sheet. When the prosecution gave up his evidence, he was examined by the accused as one of the defence witnesses during trial in the lower Court. Out of Exs.P-5 to P-13, Exs.P-5 to P-9 demand drafts were obtained on 05.06.1991 and Exs.P-10 to P-13 Demand Drafts were obtained on 06.06.1991. It is evidence of D.W.1 that he handed over Exs.P-5 to P-9-Demand Drafts to P.W.1 on the evening of 05.06.1991 itself. According to D.W.1, he handed over Exs.P-10 to P-13-Demand Drafts to P.W.1 on 06.06.1991 after he obtained them. It is evidence of P.W.4 that P.W.1 was having the demand drafts in his pocket. PW11, trap-laying officer denied PW1 having the demand drafts-Exs.P5 to P13 with him during pre-trap proceedings. Evidence of DW1 undoubtedly established that PW1 was in physical possession of those demand drafts by the time of pre-trap proceedings. Inspite of it, PW1 did not produce the said demand drafts before the trap-laying officer during pre-trap proceedings and was secreting those demand drafts in his pant pocket without disclosing their availability with him. 9. As pointed out earlier, it is spontaneous explanation of A1 at the spot that PW1 gave tainted cash MO.1 to him by keeping the same in the midst of 9 demand drafts covered by Exs.P5 to P13 and that tainted currency notes were came to him in that manner. It is evidence of PWs 1 and 2 that in the first instance, PW1 took out Rs.5,500/- out of MO.1 cash and gave the same and that after A1 counting the same, asked PW1 for the balance amount and thereafter, PW1 took out Rs.1,500/- lying in his pocket and gave the same to A1. MO.1 cash of Rs.7,000/- consisted of 10 currency notes of Rs.500/- each and 20 currency notes of Rs.100/- each. This is not a case where the entire 30 currency notes/leaves were handed over to A1 by PW1 at a time along with 9 demand drafts. In the first instance, PW1 handed over only 15 currency notes out of 30 currency notes along with 9 drafts and for the second time, the balance of 15 other currency notes were handed over by PW1 to A1. This Court can understand if entire 30 currency notes were passed on by PW1 to A1 along with 9 demand drafts, so that A1 can be blamed for receiving the currency notes which are in bulk along with the demand drafts. As per PWs 1 and 2, 30 currency notes were passed on in two phases one after the other. PW1 has no explanation for handing over 30 currency notes in two installments. When entire 30 currency notes covered by MO.1 were tainted with phenolphthalein powder at one time and the entire notes were in a single wad, the possibility of picking out only 15 currency notes out of 30 currency notes by PW1 in the first instance will not arise, unless PW1 intended to pass on 15 currency notes in the first instance along with 9 demand drafts. It is not PW1’s evidence that 30 currency notes were kept in this pocket by making the same into two wads. The said method of handing over currency notes in piecemeal manner by PW1 to A1 indicates that PW1 intended to pass on the currency notes to A1 stealthily by keeping them in the midst of 9 demand drafts. The method adopted by PW1 probablizes the version of A1 contained in Ex.P30-post-trap proceedings. 10. As per evidence of PWs 1 and 2, the episode relating to demand of bribe took place during the night of 1/2 – 06-1991 at the residence of A2. As noted earlier, it is evidence of PW1 that after disconnecting illegal drawing of electrical energy by tapping overhead lines to PW1’s factory on 01.06.1991, the accused asked him to meet at their house. PW1 in his evidence narrated the events which took place on the night of 1/2-06-1991 in a dramatic manner. Initially, PW1 along with PW2 is stated to have gone to the house of A2 subsequent to disconnection of unauthorized tapping of electricity from overhead lines and A2 stated to him that it may not be proper to disturb the Divisional Engineer at that time during night; and A2 asked PW1 to bring A1 to his house. It is evidence of PWs1 and 2 that they went to A1’s house and informed A1 about A2 calling him to his house and that thereupon, A1 confirmed the said call by contacting A2 through telephone and thereupon, A1 accompanied PWs 1 and 2 to A2’s house, where PW1 was asked to stay outside and A1 and A2 had discussions inside house of A2. According to PW1, A1 alone came out of A2’s house and demanded him to pay Rs.10,000/- towards bribe as well as penalty put together and that after it was agreed by PW1, A1 and A2 called the lineman at about 3:00A.M. and instructed him to restore electrical energy to PW1’s factory. To disprove the entire drama spoken by PW1 during the night of 1/2-06-1991 at the houses of A1 and A2, the accused examined DWs 1 to 3. The lower Court discarded evidence of DWs 1and 2 on the ground that there is no proof of they working in PW1’s factory. It is pointed out already that the prosecution had shown DW1 as 12th witness in the charge sheet as the clerk in PW1’s factory. In the charge sheet, DW2 is shown as 6th witness for the prosecution and he was described as worker in PW1’s factory. It is evidence of DWs 1 and 2 that after the electricity officials and police officials disconnected unauthorized tapping of electricity from overhead lines to PW1’s factory, PW1 remained in the factory itself throughout that night until restoration of regular power supply by the lineman. If evidence of PW 1 and 2 is to be accepted about they going round the houses of A1 and A2 during that dead of night, then PW1’s presence in the factory premisis throughout that night would not be there. At this juncture, one improbability need be pointed out. Evidence of PWs1 and 2 reveal that both A1 as well as A2 were having telephone facility in their respective houses. When telephone facility was available in their houses, there was no need for A2 to ask PW1 to go and bring A1 to his house. When A1 is stated to have obtained confirmation about A2 calling him by contacting A2 through telephone from his house, there was no necessity for A1 to go all the way from his house to house of A2 and have discussion in A2’s house during the mid night. Both A1 and A2 could have discussed the matter through phone and A1 could have conveyed the conclusion of their talk at A1’s house itself. The entire evidence of PWs 1 and 2 with regard to prolonged discussions between A1 and A2 for hours together from 10:00 PM on 01.06.1991 to 3:00 A.M. on 02.06.1991 is highly improbable. The said improbability coupled with evidence of DWs 1 and 2 about physical presence of PW1 in the factory premisis throughout that night, falsifies evidence of PWs 1 and 2 with regard to demand of bribe said to have been made by A1 at the house of A2. Apart from evidence of DWs 1 and 2, house owner of A2’s rented house was examined as DW3. DW3 was residing in the first floor of the same building where A2 resided in the ground floor. It is his evidence that he locks compound gate during night time and that if any person wants to move in or move out, it can be done only when DW3 removes the lock to that gate. DW3 says that on the night of 1/2- 06-1991, nobody came to house of A2. The lower Court discarded evidence of DW3 on the ground that his evidence cannot be believed. The lower Court could not give any proper reasons for disbelieving evidence of DW3. It is not the prosecution case that A2 was not a tenant of DW3 but was a tenant of different person. During the year 1991, DW3 worked as principal of a Government Aided Private College at Jangareddigudem. There are no circumstances to discard DW3’s evidence in this case. From the above discussion of oral evidence on record, I have no hesitation to find that the prosecution could not prove the demand for bribe made by A1. 11. It is contended for the appellants that neither A1 nor A2 was in a position to extend any official favour to PW1 with regard to levying of penalty for unauthorized drawing of electrical energy from overhead lines by employing illegal method. There is no dispute that it was the Divisional Engineer, Nidadavole who was competent to assess and issue provisional assessment notice as well as final assessment notice to the erring consumer for payment of penalty. After the Divisional Engineer decides the penalty amount, appeal lies to the Superintending Engineer. It is contended by the Special Public Prosecutor that though Divisional Engineer is the competent authority to levy penalty, he can do so only on the note put up by A1 and A2 as Additional Assistant Engineer and Additional Divisional Engineer