CRLA/1200/2003 of Mantha Ramaswamy Vs State of A.P.Rep. by Spl.Public Prosecutor, on 31 December 2010

JUDGMENT:

This is an appeal arising out of the C.C.No.3 of 1999 on the file of the Prinicipal Special Judge for SPE &A.C.B Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad as against the sentence passed againstthe appellant on 27.10.2003.

The case of the prosecution is that the accused worked as Executive Engineer (Panchayat Raj)Kothagudem of Khammam District from 14.06.1996 to 07.06.1998. One S.K. Fathe Mohammad resident ofPathlingala village in Khammam District undertook gravelling of the road from PWD road to Oddugudem villageunder Janmabhumi scheme, and completed the work. The accused after check measurements passed last bill forRs.42,863/- On 11.4.1998, when Fathe Mohammad approached the accused and requested him to issue thecheque, the accused demanded bribe of Rs.4,0000/- for issuing the cheque. When Fathe Mahammed expressedhis inability to pay bribe amount, the accused agreed to accept the bribe amount in two instalments of Rs.2,000/-before and after encashing the cheque, and instructed him to pay Rs.2,000/- on 25.4.1998 in his office or housebefore 12.00 noon and receive the cheque. As Fathe Mohammad was not willing to pay bribe gave complaint on23.4.1998 to DSP, ACB, Warangal who laid trap on 25.4.1998, which proved successful. After wards sanction wasobtained from the competent authority to prosecute the accused as required under the Provisions of Prevention ofCorruption Act, 1988 (in short, the Act).

The lower court has framed the charges under Section 13(1)(d) read with Section 13(2) of the Act against theaccused and the accused pleaded not guilty for the said charges.

The prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.17 and M.Os.1 to 11 and X.1 and X.2 ontheir behalf.

The accused in support of his defence has examined D.Ws.1 to 5 and got marked as Exs.D-1 to D-4.

Basing on the above evidence, the lower court has framed the following points for consideration:1.Whether the accused demanded and accepted bribe for doing an official act of issuing a cheque?2.Whether the accused by obtaining Rs.2,000/- by abusing his office position committed the offence of criminalmisconduct?

The lower court after taking into consideration of both oral and documentary evidence, found the accused guilty for the charges under Sections 13(1)(d) read with Sec.13(2) of the Act and convicted him to undergo Rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- and in default of payment of fine toundergo simple imprisonment for a period of five months, for the offence under Section 7 of the Act and furthersentenced him to undergo Rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- and indefault of payment of fine to undergo Simple imprisonment for a period of five months, for offence under Section13(1)(d) read with Section 13(2) of the Act. Both the sentences shall run concurrently. Aggrieved by the saidconviction, the present appeal is filed.

Now the point for consideration is whether the prosecution could be able to establish the charges underSections 7 & 13(1)(d) read with Sec.13(2) of the Act against the accused beyond reasonable doubt.

According to the prosecution, the accused has completed the work of gravelling of the road from P.W.D roadto Oddugudem village under Janmabhumi scheme and the defacto-complainant Sk. Fathe Mahamad has to get anamount of Rs.42,863/- and as the accused officer is working as Executive Engineer, Panchayat Raj, Kothagudem,Khammam District, the defacto-complainant approached on 11.4.1998 for issuance of the cheque for an amount ofRs.42,863/- and the accused officer demanded him to pay Rs.4,000/- for issuing the said cheque and when thedefacto-complainant expressed his inability to pay the bribe amount, the accused agreed to accept the bribeamount in two instalments of Rs.2,000/- before and after encashing the cheque and instructed him to payRs.2,000/- on 25.4.1998 in his office or house before 12.00 noon and receive the cheque.

The learned counsel for the appellant has pleaded that the defacto-complainant and accompanyingwitnesses P.Ws.1 and 2 has not supported the version of the prosecution and the other evidence adduced by theprosecution could not establish the charges framed against the accused. He further pleaded that the accused admitted in his written statement about receiving of Rs.2,000/- from P.W.1 on 25.4.1998 but he has specifically pleaded that the said amount was received by him towards the cement got supplied by him to P.W.1 and thesame was established from the cross-examination of P.W.3 and D.Ws.3 to 5 and the prosecution has failed toestablish the demand for payment of the amount and accepting the bribe amount as alleged by the prosecutionand simply because the prosecution could be able to establish the trap, the prosecution is not entitled for thepresumption available under Section 20 of the Act. He further pleaded that the appellant can rebut the saidpresumption if any available to the prosecution by adducing necessary evidence.

The learned counsel for the appellant in support of his contention that mere acceptance of money is notsufficient for convicting the accused under Sections 13(1)(d) read with Sec.13(2) of the Act, he has relied upon a

Conclusion

decision rendered in Subash Parbat Sonvane v. State of Gujarat[[1]] wherein the Apex Court has held that:“mere acceptance of money without there being any other evidence would not be sufficient for“mere acceptance of money without there being any other evidence would not be sufficient forconvicting the accused under Section 13(1)(d)(i) of the Act. In Sections 7 and 13(1)(a) and (b) of the Act,the Legislature has specifically used the word ‘accepts’ or ‘obtains’. As against this, there is departure inthe language used in Clause (1)(d) of S.13 and it has omitted the word ‘accepts’ and has emphasizedthe word ‘obtains’. Further, the ingredient of sub-clause(i) is that by corrupt and illegal means, a publicservant obtained any valuable thing or pecuniary advantage, under Clause (ii) he obtains such thing byabusing his position as a public servant, he obtains for any person any valuable thing or pecuniaryadvantage without any public interest. Therefore, for convicting the person under S.13(1)(d), there mustbe evidence on record that accused; obtained; for himself or for any other person any valuable thing orpecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant orhe obtained for any person any valuable thing or pecuniary advantage without any public interest.”the Legislature has specifically used the word ‘accepts’ or ‘obtains’. As against this, there is departure inthe language used in Clause (1)(d) of S.13 and it has omitted the word ‘accepts’ and has emphasizedthe word ‘obtains’. Further, the ingredient of sub-clause(i) is that by corrupt and illegal means, a publicservant obtained any valuable thing or pecuniary advantage, under Clause (ii) he obtains such thing byabusing his position as a public servant, he obtains for any person any valuable thing or pecuniaryadvantage without any public interest. Therefore, for convicting the person under S.13(1)(d), there mustbe evidence on record that accused; obtained; for himself or for any other person any valuable thing orpecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant orhe obtained for any person any valuable thing or pecuniary advantage without any public interest.”

In the other decision relied upon by the learned counsel for the appellant rendered in C.M. Girish Babu v.

CBI, Cochin, High Court of Kerala[[2]] wherein the Apex Court examined that the “crucial question is whetherthe appellant had demanded any amount as gratification to show any official favour and whether the said amountwas paid by P.W.10 and received by the appellant as consideration for showing such official favour and observedthat the only evidence available in this regard is that P.W.10 who did not support the case of the prosecution. The appellant at the earliest point of time explained that it was not a bribe amount received by him but the samewas given to him by P.W.10, saying that it was towards repayment of a loan taken by P.W.2 from accused 1. Thisis evident from the suggestion put to PW 2 even before PW 10 was examined. Similar suggestion was put to theinvestigating officer that he had not recorded the version given by the appellant correctly in the post-trap mahazar, Ext.P-9 and no proper opportunity was given to explain the sequence of events and relying upon a decisionrendered in Suraj Mal v. State (Delhi Admn)[[3]], the Apex Court has held the mere recovery by itself cannotprove the charge of the prosecution against the accused, in the absence of any evidence to prove the payment ofbribe or to show that the accused voluntarily accepted the money knowing it to be bribe”.

Therefore, in view of the above said decisions, it has to be established by the prosecution that the accusedhas demanded for payment of the bribe amount and accepted the same. According to the prosecution, theaccused first demanded for payment of the bribe amount on 11.4.1998 when the P.W.1 approached him forissuance of the cheque for the work done by him. P.W.1 in his chief-examination has stated that during the April,1998 he went to Kothagudem to the office of the Deputy Executive Engineer along with ‘M’ Book and got theworks executed by him recorded in that ‘M’ Book by the D.E. Then he took that record to the office of the accusedofficer. Ex.P-2 and Ex.P-3 are the ‘M’ Books numbering 2. He took both the ‘M’ Books to the office of the accusedoffice from D.E office. He handed over the ‘M’ Books to the Drafts Man of the office. The accused officer was notpresent in the office at that time. Hence, he went away to his house. Two or three times he went to the office of theaccused officer in connection with that work and enquired the Draftsman. He told P.W.1 that there is no use incoming to the E.E. office frequently. He advised the P.W.1 to pay some money to the accused officer and get hiswork done. Then the P.W.1 came back. Since, he had no money to pay to accused officer he was going back tohis house. On the way his brother-in-law Dawood Ali met him in his village and he informed his brother-in-lawand one Veerabhadram who was also along with him as to what has happened in the office of the accusedofficer. Veerabhadram told him that he would get his bill passed. He asked the P.W.1 to come to Kothagudemand then on 23.4.1998 P.W.1 and his brother-in-law Dawood Ali and Veerabhadram came to Hyderabad and theytook the P.W.1 to ACB office Veerabhadram and Dawood Ali talked for some time and then Dawood Ali drafted acomplaint and took his signatures in it. Ex.P-4 is the said complaint. It contains his signature. Then he went to hishouse. Veerabhadram advised him to meet him on the third day near Mayuri Centre of Khammam, so that he willarrange for payment of his bill. Accordingly he went to Khammam at about 9.00 a.m. His brother-in-law DawoodAli also came along with him. Both of them went to ACB office, Khammam. His brother-in-law and Veerabhadramwent into the office of the ACB, Khammam Fifteen minutes later, he was called inside. Veerabhadram gave himRs.2,000/-, after he went inside. He kept that money in pocket and from there himself, his brother-in-law andVeerabhadram went to Kothagudem and met the accused officer in his office. He enquired him about his cheque. He told him that the cheque is ready and asked him to take it from the drafts man. Since he was due Rs.2,000/- tothe accused officer towards purchase of cement from him, he paid that Rs.2,000/- to him and then went to the seatof drafts man and received the cheque from him and went away. Drafts man asked money from him and he toldhim that he will pay after the cheque is encashed.

Therefore, from the above evidence, P.W.1 who is the complainant has not supported the version of theprosecution and he has not stated any thing about the meeting of the accused officer on 11.4.1999. P.W.2 who isthe accompanying witness. P.W.1 is his brother-in-law has stated that on 20.4.1998 during at about 5.00 p.mP.W.1 came to him and informed him that the accused was not issuing the cheque for the civil contract workexecuted by him earlier. The congress(I) workers who were there at that time also complained to him that theaccused has been refusing to give their cheques also. All of them are the firm opinion that accused had beensupporting only T.D.P party works and sympathisers. All the congress (I) works insisted that a lesion should betaught to the accused some how or others. All of them took a decision to get him trapped by ACB.

Therefore, even P.W.2 has not disclosed about P.W.1 meeting him on 11.4.1998 and informed him aboutthe incident that has occurred on that day in the office of the accused officer.

According to the appellant, the accused was not in his office on 11.4.1998 and as such the question ofmeeting P.W.1 in the office does not arise. The counsel for the appellant has further pleaded that on 11.4.1998,the file pertaining to the issuance of the cheque was not before the accused officer and as such the question ofdemanding the money for issuing of the cheque does not arise. In support of the contention that the accused wasnot in town on 11.4.1998, the appellant counsel relied upon the evidence of P.W.5 who worked as Senior Assistantin the office of the Executive Engineer, Panchayat Raj at Kothagudem and in the cross-examination he has statedthat from 1994 to June, 1998, he worked in the Executive Engineer office at Kothagudem. There are four sub- divisions in Kothagudem i.e., Ellandu, Enkoor, Kothagudem and Garla. There are four or five Asst. ExecutiveEngineers in Kothagudem sub division. There is an Asst. Executive Engineer in Chandrugunda. The Asst.Executive Engineers will send their tour diaries to the Executive Engineers every month. Each months diary willbe sent in the next month first week. One Mr. Mahesh Babu was the Assistant Executive Engineer of the MandalParishad and Panchayat Raj of Chandragunda in the year 1998. Ex.D-1 is the diary for the month of April, 1998. As per the said diary on 11.4.1998, he along with Executive Engineer, inspected the works of NABARD, WorldBank and on that day their Executive Engineer was the accused officer. The signature in page No.32 of M BookNo.1415 of the work relating to Pennagadapa to Rajapuram, P.W.D road contains the signature of Assist.Executive Engineer, MPPR, Chandragunda is one Mr. Mahesh Babu. As per the entries in page 36 of the abovebook, the accused checked and measured the work on 11.4.1998. Ex.D-2 is the above M Book. Ex.D-3 contains 6pages. The signature shown to him is that of signature of Prasada Reddy, Dy. Executive Engineer, Panchayat Rajsub-division, Sujatha Nagar which was earlier known as Eankur sub-division. It also contains the signature of SriLakshmana Rao, Asst. Executive Engineer, Panachayat Raj, Kamapalli. Therefore, according to P.W.5 on11.4.1998, the accused officer has checked the works relating to Pennagadapa to Rajapuram, P.W.D road andmade entries in Ex.D-2 check measurement book and Ex.D-3 is the Log Book of the accused officer would showabout the visit of accused officer for the above said works on that day.

In support of the said contention, the accused officer examined D.W.1 A Chandrashekhar who worked asAttender in the office of the Executive Office, Panchayat Raj, Kothagudem since 1993. He used to accompanythe Executive Engineer whenever he goes on camps. One Venkateshwarulu was the Jeep driver at that time. Heused to maintain the log book of the vehicle, since Venkateshwarulu was illiterate. Ex.D-3 is in his hand writing. On 11.4.1998 they left Kothagudem at 8.00 a.m and returned back to Kothagudem at 8.30 p.m, on that day heaccompanied the accused and they went to Chandrugonda Mandal, Julupaddu and Palvancha, MulakalpallyMandal. In 1998 one Mahesh Babu was the Assistant Executive Engineer, Chandrugonda Mandal. He was alsowith them on that day.

The next witness examined by the appellant is D.W.2 U Mahesh Babu who worked as the Asst. ExecutiveEngineer in Panchayat Raj, Kothagudem since August, 2000. Prior to that he worked as A.E.E at ChandruGonda mandal from February, 1997. He knows D.W.1 accused officer worked as Executive Engineer,Kothagudem from 1993 to 1998 and he retired in September, 1998. He supervised the road work atPenugadapato Rajapuram in Chandru Gonda Mandal during February, 1998. He recorded the measurements inEx.D-2 on 7.4.1998 at page Nos.34 to 37 and the same is in his hand writing. Accused officer checked themeasurements on 11.4.1998. On that day accused officer came to Chandrugonda Mandal at 10.00 a.m and hewas there upto 4.00 p.m. D.W1 also came along with accused officer. Ex.D-1 is the Tour diary submitted by himfor the month of April, 1998. It discloses his movement on 11.4.1998 along with the accused officer.

Therefore, from the evidence of D.Ws.1 and 2 and P.W.5, it is evident that the accused officer went on campto Chandru Gonda Mandal for inspecting the works and the same is evident from Exs.D-1 to D-3. Therefore, theappellant could be able to establish that he was not in the office on 11.4.1998 from 8.00 a.m to 8.30 p.m.

With regard to receiving of the file in the office of the Executive Engineer pertaining to P.W.1, P.W.5 who isthe Senior Assistant worked in the office of Executive Engineer, during that period has stated in his cross-examination that as per the covering letter shown to him, Prasada Reddy, Deputy Executive Engineer sent the billof PW.1 to the office of the accused on 15.4.1998 and he does not know when actually he dispatched the bill. Thebill will be first scrutinised by the Drawing branch, drafts man. One Rajender Babu was the then drafts man of theiroffice. As per the record shown to him he had put up note file on15.4.1998. He does not know whether by15.4.1998 the bill was received in the office of the accused. After the accused issued pass order, cheque has to beprepared by the Superintendent of the office.

The investigating officer who is the P.W.8 has admitted in his cross-examination that Ex.P-17 shows theaccused officer approved the bill of P.W.1 on 15.4.1998 and he admitted that Ex.P-17 was seized from the officeof the accused on the date of trap and file does not disclose that it was placed before the accused officer by thestaff on 11.4.1998. Therefore, there is no material available on record to show that the file pertaining to P.W.1

placed before the accused officer on 11.4.1998. More over, with regard to the demand of bribe amount by theaccused officer, the only person available to speak about the same is P.W.1. P.W.1 has turned hostile and hehas not stated anything about the same. But, the learned Special Judge had taken into consideration that thecheque was issued on the date of trap and as per Ex.P-4 complaint, the accused has demanded the bribe amountof Rs.4,000/- on 11.4.198 and thus P.W.1 gave a complaint under Ex.P-4 to the Deputy Superintendent, A.C.Babout the demand of the accused for payment of Rs.4,000/- towards bribe amount for issuing the cheque. He alsorelied upon the evidence of P.W.3 who is the mediator for the trap who has stated that the P.W.1 has stated beforehim and the P.W.8 who is the Investigating Officer that about the accused demanding for payment of Rs.4,000/- asbribe and thereby came to the conclusion that there was a demand of bribe amount by the accused for issuing thecheque.

With regard to Ex.P-4 complaint, P.W.1 has stated in his cross-examination that he was not aware of thecontents of Ex.P.4 and it was drafted by P.W.2 and obtained his signatures. P.W.2 has stated in his chief-examination itself that the Congress (I) workers who were there at that time also complained to him that theaccused has been refusing to give their cheques also. All of them are the firm opinion that accused had beensupporting only T.D.P party workers and sympathisers and all the congress (I) workers insisted that a lessonshould be taught to the accused some how or the others and all of they took a decision to trap the accused. Therefore, from the above evidence, it cannot be said that it is a substance evidence to prove the demand by theaccused.

The other evidence relied upon by the learned Special Judge is the evidence of P.W.3. P.W.3 who is themediator for the trap and he has stated that along with P.W.1 Dawood Ali was also present in the DSP office onthat day and ex.P-4 is the original complaint and on which himself and one Rama Rao have put their initials onthat day in token of having gone through its contents and verified them from P.W.1. P.Ws. 1 and 2 were introducedto them by the DSP, ACB. They have also verified the contents of Ex.P-4 from P.W.1. Therefore, whateververification made by P.W.1 is only with regard to the complaint made by P.W.1 and it amounts to ear say evidenceby P.W.3 as the evidence of P.W.1 has not supported the version of the prosecution. Thus, the prosecution couldnot be able to establish the demand of bribe amount for issuance of the cheque by the accused officer and assuch it was not established by the prosecution beyond reasonable doubt.

As the learned Special Judge has observed since the prosecution could be able to establish about therecovery of tainted money from the possession of the accused, it has to be presumed that he has demanded andaccepted the bribe amount from the P.W.1. According to the appellant in his written statement has admitted aboutthe receipt of Rs.2,000/- from P.W.1 but he pleaded that he has paid the same towards cost of the cement gotarranged by him. He also pleaded that the investigating officer has not properly recorded the explanation given bythe accused at the time of trap. P.W.3 is the mediator for the trap and in the cross-examination he admitted that theaccused officer stated that he arranged the cement on credit basis to P.W.1 prior to the date of trap. But, he deniedthat the accused officer has stated that the said amount paid to him by P.W.1 representing the price of the samewhich has arranged earlier. He also denied that the accused officer stated before the DSP that he arranged thecement from one Chanda Mallesham and that they intentionally omitted to make such fact in the 2[nd] mediatorsreport. He does not know whether one Krishna Prasad, Contractor was also present in the chambers of theaccused officer by the time trap party entered into the accused officer’s chambers.

The learned Special Public Prosecutor has argued that when there is evidence of investigating officer withregard to successful trap supported by the evidence of the mediator, which has to be presumed that the accusedhas received the illegal gratification and in support of his contention, he relied upon a decision rendered in HazariLal v. The State (Delhi Admn.)[[4]]wherein the Apex Court held “that where the evidence of the police officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule ofprudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that theevidence of such officers should be treated on the same footing as evidence of accomplices and there should beinsistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to actupon the evidence of such an officer without corroboration, but, equally, in the fact and circumstances of anothercase the court may unhesitatingly accepted the evidence of such an officer. It is all a matter of appreciation of

evidence and on such matters there can be no hard and fast rule, nor can thee be any presidential guidance.” In the present case, the evidence of the P.W.1 and the investigating officer is supported by the evidence ofmediator who is P.W.3. Therefore, in the present case there is corroboration of evidence with the evidence of theinvestigating officer. However, accused officer submitted his explanation under Section 313 Cr.P.C examination mentioning that on 25.4.1998 while he was in office, P.W.1 came to him and the accused informed the P.W.1 thatthe cheque was ready and asked him to collect the same from the office and he further stated that he receivedRs.2,000/- from P.W.1 on that day and the said amount was received by him as he has arranged cement on creditbasis and accordingly he accepted the said amount and kept it in his shirt pocket. P.W.3 who is the mediator to thetrap proceedings has admitted in the cross-examination that the accused officer has stated to the DSP that hehas arranged the cement on credit basis to P.W.1 some time prior to the date of trap. But, he denied that theaccused officer has stated that the sum of Rs.2,000/- was paid to him by P.W.1 towards the price of cement whichhe has arranged earlier. In order to establish the same contention of the appellant, the appellant examined D.W.3D. Laxamana Rao who was working as Assistant Executive Engineer, Konjerla Mandal of Khammam District sinceMarch, 1999. Earlier he worked as Asst. Executive Engineer. P. Raj, Kameypally Mandal, Kothagudem divisionfrom September, 1995 to February, 1999. During 1998, Accused officer was the Executive Engineer ofKothagudem. He retired in September, 1998. He knows P.W.1 who is native of Patalingala village. The saidvillage comes under Kameypally Mandal. In 1997-1998 they got constructed additional accommodation to UpperPrimary School, Patalingala village under Janmabhoomi scheme. P.W.1 executed that work. Ex.D-4 is the file forthe said work which contained the signatures of himself, Dy. Executive Engineer and the Accused officer [providedcement for the said work to P.W.1 on credit basis.

In the cross-examination he has stated that he cannot say how many cement bags were provided to P.W.1 on the credit basis and also the value of cement. In that regard appellant has examined D.W.4 Chanda Malleshamsaid to be the owner of the cement shop and according to him he is doing business in cement. The name of hisshop is Padmalaya Agencies and his shop is situated at a distance of 20 yards from the office of the ExecutiveEngineer, Panchayat Raj, Kothagudem. The accused worked as Executive Engineer, Panchayat Raj. He knowsP.W.1 who is a contractor and he supplied cement to P.W.1 on credit basis on the advise of the accused and 3months later P.W.1 paid the amount for the cement supplied to him. In the cross-examination he has stated thatthe agency is in the name of his wife and he has not brought any document to show that he has supplied thecement to the P.W.1 on credit basis. P.W.1 paid the amount towards the costs of the cement supplied by him buthe has not issued any receipt to him. He denied that he never gave any cement to P.W.1 on credit basis and thathe never paid any amount to him. The other witness examined on behalf of the appellant is D.W.5 V. KrishnaPrasad who is stated to be present at the time of trap along with the accused officer and according to him on25.4.1999 he went to the office of the accused officer at Kothagudem at 11.30 a.m to discuss with the accused withregard to allotment of works. While he was talking with accused, P.W.1 and 2 came there and P.W.1 gaveRs.2,000/- to the accused stating that it was towards repayment of the price of the cement taken by him fromD.W.4. The accused officer counted the amount and kept the amount in his shirt pocket. ACB officials came thereand they enquired him for the purpose of his visit and asked him to go away after taking his particulars. Theyasked the accused about the amount and accused told them that he receive the amount from P.W.1 with regard toprice of cement bags taken by P.W.1 from D.W.4 on credit basis. Accused gave those currency notes to the DSP.In the cross-examination he stated that he knows the accused officer since 1995. He knows the P.W.1 since1986 and he knows since 25 years. He used to take cement from D.W.4 on credit basis and he never paid thecement amount to D.W.4. through the accused office.

Therefore, from the above evidence of D.Ws.3,4 and 5 and the admission of P.W.3, the appellant could ableto explain about the amount received from P.W.1 on the date of trap. The lower court has disbelieved the version ofthe appellant that the amount received by him is towards the cost of the cements which he got arranged on thecredit basis by observing that the P.W.1 could pay the amount straight away to D.W.4 and there is no necessity forpaying the amount to P.W.1 through the accused.

The appellant’s counsel has pleaded that the appellant need not prove the defence beyond reasonabledoubt and it is sufficient if they could able to establish the defence version by preponderance or probabilities andhe relied upon a decision in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2 supra) wherein the Apex court has held that “the accused can rebut the presumption either through the cross-examination of theprosecution witnesses or by adducing reliable evidence and further held that the burden of proof on accusedunder S.20 is not the same as the burden placed on prosecution to prove case beyond reasonable doubt.”

In the above said decision also, the accused therein has tried to establish that he received the amount fromP.W.1 towards the repayment of the loan taken by his Manager and in that case also the said P.W.10 did notsupport the case of the prosecution. Taking into consideration of the said fact, the Apex Court has believed theversion of the accused that the amount was paid to him towards the repayment of the loan taken by P.W.2 from theaccused. Even in the decision relied upon by the learned Special Public Prosecutor rendered in Hazari Lal v. TheState (Delhi Admn.) (4 supra) wherein the Apex Court has held that “ recovery of money from accused notsufficient to prove acceptance of bribe and recovery of the money coupled with other circumstances leads to theconclusion that the accused received gratification from some person the Court would certainly be entitled to drawthe presumption under Section 4(1) of the Act.”

In the present case also the prosecution could not be able to establish about the demand made by theaccused officer on 11.4.1998 and from the evidence of D.Ws.3,4 and 5 and admission made by the P.W.3 hecould be able to establish that the amount received by him towards the payment of the costs of the cement whichhe has got supplied to P.W.1 earlier on credit basis and the said version was also accepted by the P.W.1 and healso not supported the version of the prosecution about the payment of Rs.2,000/- towards bribe to the accusedofficer.

Therefore, in the above circumstances, I hold that the prosecution has failed to establish the charges underSections & 7 13(1)(d) read with Section 13(2) of the Act against the accused beyond reasonable doubt.

In the result, the appeal is allowed and the conviction and sentence passed by the Principal Special Judgefor SPE & A.C.B Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad in C.C.No.3 of 1999 dated27.10.2003 is set aside.

December 31[st], 2010GK.THE HON'BLE SRI JUSTICE P. DURGA PRASAD

______________________P. DURGA PRASAD,J

Gk.

[1]AIR 2003 Supreme Court 2169

[2](2009)3 Supreme Court Cases 779

[3](19979) 4 SCC 725[4]AIR 1980 Supreme Court 873

CRIMINAL APPEAL No.1200 of 2003

Date:31.12.2010