THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.377 of 2004 BETWEEEN: State: Inspector of Police, … Appellant AND Syd Fakeer Ahmed Basha … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.377 of 2004 JUDGMENT: By the impugned judgment dated 16.07.2003 in CC.No.18 of 1996, the Additional Special Judge for SPE and ACB cases, Hyderabad, acquitted the respondent/accused of the charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). Questioning the same, the Special Public Prosecutor filed this appeal. 2. The accused was working as Additional Assistant Engineer, A.P. State Electricity Board, Bethamcherla in Kurnool District. PW1 was owning Ac.6.85cents of dry land in Seetharampuram of Bethamcherla Mandal. He dug a borewell in his lands and purchased motor and pipes for irrigation of his lands with water from that borewell. It is alleged that on 15.06.1995, PW1 accompanied by PW2, approached the accused at his office with an application for service connection to the borewell along with the required enclosures and that after receiving the application from PW1, the accused collected Rs.25/- as registration fees and demanded bribe of Rs.1,500/- for doing official favour of issuing electricity service connection to the borewell of PW1 and that when PW1 expressed inability to pay the said amount, the accused reduced the same to Rs.1000/- and returned the application with enclosures to PW1 for not paying the amount and that on 28.06.1995, the accused reiterated his demand with PW1 in the presence of PW2. Thereupon, PW1 went to PW4, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Kurnool Range and gave Ex.P2 report dated 01.07.1995. PW4 arranged trap to the accused on 03.07.1995. PW3 and another were requisitioned as mediators for the trap. Ex.P7, pre-trap proceedings were prepared before the trap. After the trap, Ex.P9, post trap proceedings were prepared. It is alleged that the trap was successful and the accused was caught red-handed while in possession of MO.1 tainted cash of Rs.1,000/-. Plea of the accused is one of total denial and that of not guilty. 3. During trial in the lower Court, the de facto complainant, PW1 and the accompanying witness PW2, turned hostile to the prosecution. There is no dispute about PW1 seeking electricity service connection for borewell in his lands by giving Ex.P1 application and approaching the accused. PW1 says that one person by name Krishna Reddy, who is reporter of newspaper by name ‘Eenadu’, told him that it is not necessary to wait for three months for obtaining electricity service connection and that he would talk to the officers concerned in Kurnool and see that electricity service connection is obtained within two days. PW1 says that the accused told him that it would take three months to get electricity service connection. According to PW1, the said Krishna Reddy took them to ACB office, Kurnool. PW1 wrote Ex.P2 report. With regard to the trap, PW1 deposed that by 1:00 PM, he and PW2 went to the office of the accused and met him and that the accused called one Ramakrishna and asked him to register the application and that when he (PW1) handed over his application together with cash of Rs.1,000/- to the accused, the accused questioned him as to why he was giving the said amount to him and returned the amount to him. PW1 says that when the accused went to an adjoining room, he kept the amount of Rs.1,000/- inside right table drawer of the accused and came out and gave pre-arranged signal to the ACB officials. PW2 corroborated evidence of PW1 in the lower Court. It is consistent evidence of PWs 1 and 2 that the accused was not aware of keeping of the amount at the seat of the accused. Evidence of PW3, mediator and PW4, trap laying officer is to the effect that MO.1 tainted cash of Rs.1,000/- was recovered by PW4 under the cover of Ex.P9, post trap proceedings. In Ex.P9, it is stated that when PW4 questioned the accused about the bribe amount received by him, the accused opened his table drawer and produced MO.1 cash to them. Ex.P9 further reads that when PW4 questioned the accused, the accused admitted having demanded and received bribe of Rs.1,000/- from PW1. The alleged admission of the accused to PW4, who is the Police Officer about the offence, in my opinion, is inadmissible in evidence. The accused denied having admitted anything before PW4. In the absence of proof of demand of bribe and proof of acceptance of bribe by the accused from PW1, the question of drawing presumption under Section 20 of the Act may not arise from the mere fact of recovery of MO.1 tainted cash from the accused.(See Banarsi Dass Vs. State of Haryana[1]). 4. In the above state of evidence let in by the prosecution, the lower Court rightly found the accused not guilty of the charges. I do not find any reason to come to a different conclusion from that of the lower Court. The contention of the Special Public Prosecutor that even though PWs 1 and 2 turned hostile to the prosecution during trial in the lower Court, their statements Exs.P3 and P5 recorded by the Magistrate under Section 164 Cr.P.C. can be taken into account, cannot be accepted as the said contention is contrary to law. Exs. P3 and P5 are not substantive pieces of evidence. 5. In the result, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 10.06.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.377 of 2004 DATED: 10.06.2011 ysk [1] AIR 2010 SUPREME COURT 1589