CRLA/1772/2005 of G.Laxminarayana Murthy Vs The State of A.P., on 28 December 2012

JUDGMENT:

This appeal is filed by the accused against the judgment dated19.11.2005 passed by the Principal Special Judge for SPE and ACBCases, Hyderabad in C.C.No.4 of 2001.

2. I have heard the learned counsel appearing for the appellantand the learned counsel appearing for the respondent.

3. The appellant was tried by the Special Judge for ACB Casesfor the charges under Sections 7 and 13(1)(d) read with Section 13(2)of the Prevention of Corruption Act, 1988 (for short ‘the Act’) wasconvicted for the said charges and was sentenced to undergo rigorousimprisonment for a period of one year for the offence punishable underSection 7 of the Act and also sentenced to undergo rigorousimprisonment for a period of two years for the offence punishableunder Section 13(2) of the Act. Challenging the said order ofconviction and sentence, the accused preferred the present appeal.

4. Briefly stated the facts of the case are as follows:

PW.1 – D.Bhoomaiah is the resident of Balwanthpur Village inKarimnagar District. He was Chairman of the School EducationCommittee of his village. He was entrusted with the contract workconstructing two additional class rooms in the pre-primary school,Balwanthpur village on nomination basis. However, on the assurance given by the appellant and the other officials of Panchayat RajDepartment, they laid foundation for four rooms and completed theconstruction work for two rooms initially. Subsequently he alsoproceeded with the construction work of the other two rooms. But, forpassing the bills, he had to enter into an agreement with the appellant. According to the prosecution on the oral instructions of the appellant,who is the Executive Engineer in Panchayat Raj Department, Jagitial,PW1 proceeded with the construction of other two class rooms alsoand constructed them up to lintel level.

5. When PW.1 approached the appellant on 08.07.1999 for workorder, it is said that the appellant demanded an amount of Rs.5000/- asbribe from him for issuing the said work order and also for entering intoagreement. Again on 13.07.1999 when PW.1 approached theappellant and requested for work order and agreement, the appellantreiterated his demand for payment of bribe of Rs.5,000/- and whenPW.1 expressed his inability to pay the said huge amount, he reducedthe bribe amount to Rs.3,000/- and directed PW.1 to pay the saidamount on 15.07.1999.

6. As PW.1 was not willing to pay the bribe amount, heapproached PW.7 – DSP, ACB, Karimnagar and lodged a report withhim against the appellant on 14.07.1999. Basing on the said report, acase in Crime No. 4/ACB-KNR/99 was registered against theappellant under Section 7 and 11 of the Prevention of Corruption Acton 15.07.1999 at 07.00 AM and the investigation was taken up.

7. In the course of investigation, DSP, ACB – PW.7 laid a trap withhis staff. In the course of which, PW.2-M.Ramalinga Reddy asked toaccompany the witnesses. According to the prosecution, in the course

of the said trap laid on 15.07.1999, PW.1 paid the bribe amount ofRs.3,000/- and the appellant received the same as a motive andreward for doing the official favour of issuing work order and enteringinto agreement. The chemical test conducted on the fingers of theappellant yielded positive result and the tainted amount of Rs.3,000/-was recovered from him at his instance by PW.7-DSP, ACB.

8. In order to prove the aforesaid allegations, the prosecutionexamined PWs.1 to 7, marked Exs.P.1 to P.12 and MOs 1 to 8. Theappellant examined DWs.1 to 3 on his behalf, and marked Exs.D1 toD9 and Exs.X1 to X11 were also marked.

9. PW.1, the de-facto complainant and PW.2, the accompanyingwitness did not support the prosecution. They have stated in theirdeposition before the trial Court that PW.2 took a hand loan ofRs.3,000/- from the appellant earlier to the trap and on the date of trapwhen PW.2 repaid the said loan amount, the appellant received thesame, but, he did not either demanded or accepted any bribe. Despitethe said fact, the learned trial Court considering that on the allegeddate of trap official favour was pending with the appellant and that thechemical test conduced on the fingers of the appellant yielded positiveresult and more particularly taking into consideration the fact that hereceived the tainted amount and drew the presumption under Section20 of the Act, convicted him for the offences punishable underSections 7 and 13(1)(d) read with 13(2) of the Act and sentenced himto punishment as stated above.

10. Now the point for consideration in this appeal is whether theconviction and sentence passed by the trial Court against theappellant can be sustained?

11. In the instant case, since there is no dispute about the fact thatthe appellant received the bribe amount from PW.1, the chemical testconducted on the fingers of the appellant yielding positive result andrecovery of the tainted amount from the appellant are of noconsequence. The only question to be determined in this appeal iswhether the defence theory that the appellant received the amount ofRs.3,000/- from PW.2 as repayment of hand loan can be believed, ifthe said version is probable, then the appellant is entitled for benefit ofdoubt.

12. Thorough examination of PWs.1 and 2 clearly shows that oneK.Gangaiah of PW.1’s village advised him to go and complain to theACB for getting his work done earlier through the appellant. On hisadvice, PWs.1 and 2 approached PW.7-DSP, ACB. Both thesewitnesses stated in their evidence before the trial Court that PW.7-DSP, ACB asked them whether the appellant received any bribe, theyreplied that he would not take the bribe and they never paid any bribeamount to him. According to these witnesses, as the PW.7,DSP, ACBmade it clear that in the course of the trap, they must make theappellant to receive the tainted amount. PW.2, Ramalinga Reddysuggested that as previously he obtained hand loan from theappellant, he would receive the amount from him, if he gives theamount representing it to be the repayment of loan. In the course ofthe trap also, according to these two witnesses, when they approachedthe appellant, the appellant asked him as to why they came to him andPW.2 stated that they came to repay the loan borrowed by PW.2 andgave the amount to the appellant, the appellant received the same andkept in his shirt pocket. Thereafter, it is said that on receiving the pre-arranged signal, the raiding party came and recovered the tainted amount from the appellant. Thus, even according to PW.1, he lodgedthe report with PW.7-DSP, ACB as his work pending with the appellantwas getting delayed, but the appellant never demanded bribe fromhim. PW.2, the accompanying witness also gave the same version asthat of PW.1. There is no other witness who had seen the appellanteither demanding the bribe or accepting the bribe. It is now wellsettled that merely because the chemical test conducted on theaccused yielded positive result and the tainted amount was recoveredfrom the accused, the presumption under Section 20 of the Act cannotbe drawn against the appellant/accused. The presumption can bedrawn against the accused only if it is proved that he demanded andaccepted the bribe or agreed to accept the same. In the absencethereof, it is not proper for the Court to draw a presumption asenvisaged under Section 20 of the Act against the appellant/accused.

13. The learned counsel for the appellant in support of hiscontention that the learned trial Court erred in drawing presumptionunder Section 20 of the Act against the appellant relied on the following judgments. (1) M.ABBAS v STATE OF KERALA[[1]]. In thiscase before the Supreme Court the plea of the accused was that theamount was received by him not as a bribe, but for making thepayment to another contractor who had completed the work entrustedto him. PW.2, who was declared hostile, supported the plea of theaccused. No other witness was examined to prove the demand oracceptance of bribe by the accused. The Supreme Court held that thepresumption under Section 4(1) of the Act can be said to be rebuttedand the accused is entitled for acquittal. (2) In BANARSI DASS v STATE OF HARYANA[[2]], the Supreme Court held as follows:

“To constitute the offence under Section 161 of IPC, it is

necessary for the prosecution to prove that there was demand ofmoney and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand andacceptance of the money for doing a favour in discharge of itsofficial duties is sine qua non to the conviction of the accused.”

14. In the instant case also PWs.1 and 2 are the only persons, whoare expected to speak of demand and acceptance of bribe by theappellant and did not support the prosecution story. Moreover, theystated that the appellant was not a person, who receives the bribe andthey informed the same to the DSP, ACB. They also explained thecircumstances under which the trap came to be laid against theappellant. To attract the offence under Sections 7 and 13(1)(d) readwith Section 13(2) of the Act, the prosecution has to prove that therewas voluntary and conscious acceptance of money by the accused. The trial Court is not expected to draw a presumption having recourseto inference drawn from the evidence of the mediators, who have notwitnessed the demand or acceptance of the bribe or from the contentsof the post trap panchanama which cannot be said to be a substantivepiece of evidence.

15. In the instant case, despite the fact that there was no materialbefore the learned trial court, about demand of bribe and its voluntaryacceptance, it raised a presumption against the appellant underSection 20 of the Act and the said presumption seems to have beenraised basing on surmises and conjectures. PWs.1 and 2, who are thewitnesses examined by the prosecution for the purpose of proving thevoluntary acceptance of bribe by the appellant stated in clear andcategorical terms that the appellant never demanded or accepted anybribe, but he received the tainted amount which was offered by PW.2as repayment of loan.

16. Consequently, for the foregoing reasons, the conviction andsentence passed by the Principal Special Judge for SPE and ACBCases, Hyderabad in C.C.No.4 of 2001 against the appellant beingunsustainable are set aside and the appellant is found not guilty of thecharges with which he stood charged and accordingly, he is acquitted.The fine amount, if any, paid by the appellant shall be refunded to him. The appeal is allowed.

Date: 28.12.2012Note : L.R. copy to be marked. b/o Kvrm _________________

R.KANTHA RAO,J

DATE: 28.12.2012

[1]2001(2)ALD (CRL.)60(SC)[2]2010(1) ALD (CRL)924 (SC)