CRIMINAL APPEAL 86 of 2007 on 7 November 1998

JUDGMENT

Accused Officer (hereinafter referred to, as ‘AO’),[in][ Calendar]Case No.86 of 2007 on the file of the Special Judge[for][ ACB][ Cases-]cum-lll AdditionalDistrict Judge, Visakhapatnam(forshort‘thelearned Special Judge’), filed this Criminal Appeal challenging theJudgment dated 07.08.2007, whereunder and whereby hewasconvicted of the offences punishable under Sections 7 and 13 (2)read with 13 (1) (d) of the Prevention of Corruption Act, 1988 (forbrevity ‘the PC Act, 1988’) and was sentenced to undergo rigorousimprisonment for a period of six (06) months and to pay a fine ofRs.500/- (Rupees five hundred only),indefault,to suffer simpleimprisonmentforaperiodof one(01)monthfor theoffencepunishable under Section7of the PCAct,1988 and wasalsosentenced to undergo rigorous imprisonment for a periodof one(01) year and to pay a fine of Rs. 1,000/- (Rupees[one][ thousand]only), in default, to suffer simple imprisonment for a period of twomonths for the offence punishable under Section 13 (2) read withSection13(1)(d)of the PC Act,1988. Both the sentencesofimprisonment were directed to run concurrently.

2. Sumandsubstanceofthechargesagainsttheaccusedofficeris that,he, beinga public, servant, employed asaccusedofficeris that,he, beinga public, servant, employed as SRK, JCr1.A.No.1062 of 2007

Senior Assistantin the Officeof Mandal Parishad DevelopmentOfficer, Narsipatnam Mandal, Visakhapatnam District,[demanded][ a]bribe amount of Rs.900/- from P.W1, Contractor, and accepted theillegal gratification from him on 12.11.1998, for doing[the][ official][ act]of returning the eight demand drafts to P.W1 towards[E.M.D]inrespect of the works in the Mandal Parishad Development[Office,]Narsipatnam, thereby the accused officer committed[the][ offences]punishable under Sections 7, 13 (2) read with 13 (1)[(d)][ of][ the][ PC]Act.

3. Case of the prosecution,in brief,is that the accusedofficer workedas Senior Assistantin the Officeof[the]MandalParishadDevelopmentOffice,NarsipatnamMandalofVisakhapatnam District, as such as on 13.11.1998.officer workedas Senior Assistantin the Officeof[the]MandalParishadDevelopmentOffice,NarsipatnamMandalofVisakhapatnam District, as such as on 13.11.1998.

(b) P.W1is a Contractor of Narsipatnam, VisakhapatnamDistrict, doing contract works in Roads and Buildings,[Irrigation][ and]Panchayat Raj Departments; that in the month of August,1988,P.W1constructedtwoandhalfshopsinShirdiComplex,Narsipatnam Market and another contractor two and half[shops][ in]the same complex; that the construction was done up[to][ slab][ level]and for that, a sum of Rs.44,800/- was due to be paid[to][ P.W1][ by]the Mandal Parishad Development Officer, Narsipatnam.

SRK,JCrtA.No.1062 of 2007

(C)That on 07.11.1998 at about 10.00 a.m. P.W1 went totheOfficeoftheMandalParishadDevelopmentOfficer,Narsipatnam and met the accused officer and inquired[about][ the]payment of said amount; that the accused officer demanded that acheque for a sum of Rs.29,000/- would be issued in favour of P.W1,if he agrees to pay about 3% of the cheque amount,asbribeamount; that when P.W1 replied that he had no much amount, theaccusedofficerwentintotheofficeroomofMandalParishadDevelopment Officer, Narsipatnam and returned and asked[P.W1][ to]pay an amount of Rs.900/- as bribe after encashing the chequeinthe bank, for which P.W1 agreed; that accordingly, a cheque wasissued and P.W1encashed the chequein State Bank ofIndiaNarsipatnam, but failed to pay the bribe amount to[the][ accused]officer.

(d) That P.W1 submitted ten demand drafts in the month ofSeptember and October, 1998 towards E.M.D in respect[of][ works][ in]theofficeoftheMandalParishadDevelopmentOfficer,Narsipatnam; that P.W1 was sanctioned two worksi.e.laying ofroads in Mondikandi village vide Tender Notice Rc.No.96/98,[dated]15.09.1995forRs.50,000/- andconstructionoffive shopsvide SRK,JCt1A.No.1062 of 2007

Tender Notice Rc.No.96/97, dated 02.10.1998 for Rs.95,000/-;[that]P.W1 yet to receive eight demand drafts from the office.

(e) That on 10.11.1998 at about 4.00 p.m. P.W1 met theaccused officer in the office, submitted an application,[addressed][ to]theMandalParishadDevelopmentOfficer,Narsipatnamandrequested for return of eight demand drafts; that the[accused][ officer]toldhim that on 07.11.1998,after encashing the cheque,P.W1failed to pay the bribe amount of Rs.900/- as promised[and][ unless]and until the said sum of Rs.900/- is paid, the demand[drafts][ would]not be returned; that when P.W1 informed that his financial positionwas not sound and he would pay the amount later, the[accused]officer did not to heedhis word andreiteratedhis[demand]andreturned the application to P.W1; that P.W1reluctantly[agreed][ to]pay the bribe amount to the accused officer.

(f) P.W1, having not interested to pay the bribe amount[to]theaccusedofficer,lodgedEx.P2-reporttoP.W4,DeputySuperintendentofPolice,ACB,Visakhapatnamagainsttheaccused officer on 11.11.1998. P.W4 registered the report as acase in Crime No.16/RC-WLR/98 for the aforesaid offences.[Ex.P23]is the original FIR; that P.W4 conducted and got prepared[Ex.P7-]Pre-trapProceedingsinthe presenceof L.W2-G.Venkateswara ^SRK, JCri.A.No.1062of2007Rao,AssistantExecutiveEngineer,MunicipalCorporation,Visakhapatnam and P.W2,Superintendent, Municipal Corporation,Visakhapatnam.

(g) That on 12.11.1998 at about 11.55 a m. the accusedofficer was trapped when he demandedand accepted Rs.900/-from P.Wl as gratification other than legalremunerationin theoffice of the Mandal ParishadDevelopment Officer, Narsipalnamfordoing official favour in the matter ofreturning eight demand draftsdeposited towards E.M.D by P.Wl.

(h) During the trap proceedings, P,W4 conducted chemicaltest to the hands of theaccused officer and the test yieldedpositiveresult;thatP.W6seizedthetaintedcurrencynotesandgotprepared Ex.P21-Post-trap Proceedings, dated 12.11.1998;(I)AfterobtainingEx.P24-SanctionOrder,dated09-05.2000,under Section 19 (1)(c) of thePC Act,1988forprosecutionoftheaccusedofficerandaftercompletionof'^estigation, L.W.11-K.V.RamakrishnaPrasad, Inspector of PoliceACB, Visakhapafnam filedcharge sheet against theaccused officerfor the offencespunishable under Sections 7and 13 (2) read with^0 (1) (d) of the Preventionof Corruption Act, 1988.

4. ThelearnedSpecial Judgetook cognizanceof theoffences under Sections 7 and 13 (2) read with 13 (1)[(d)][ of][ the] PCAct, 1988 against the appellant herein/AO. After furnishing[copies][ of]documents, charges for the aforesaid offences were[framed][ against]the appellant/AO, and read over and explained to him[in][ Telugu,][ he]pleaded not guilty and claimed to be tried.offences under Sections 7 and 13 (2) read with 13 (1)[(d)][ of][ the] PCAct, 1988 against the appellant herein/AO. After furnishing[copies][ of]documents, charges for the aforesaid offences were[framed][ against]the appellant/AO, and read over and explained to him[in][ Telugu,][ he]pleaded not guilty and claimed to be tried.

5. In order to prove its case, prosecution examined PWs.1to 4 and got marked Exs.P1 to P24 and MOs.1 to 11.to 4 and got marked Exs.P1 to P24 and MOs.1 to 11.

6. After closureof the prosecutionside evidence,theappellant/AO was examined under Section 313 CrPC, explained[the]incriminating circumstances appearing against him in[the][ evidence]of prosecution witnesses and he denied the same and[got][ filed]written statement.appellant/AO was examined under Section 313 CrPC, explained[the]incriminating circumstances appearing against him in[the][ evidence]of prosecution witnesses and he denied the same and[got][ filed]written statement.

7. It is the contention of the accused officer that during1975 to 1981, the accused officer resided as a tenant[in][ the][ house]of one Kuracha Nookalamma, aunt of P.W1, at Narsipatnam[and]P.W1 used to visit the house of the accused officer,[calling][ him and]his wife as uncle and aunt, respectively; that P.W1[used][ to][ borrow]small hand loans from him and his wife and same was[continued]even after P.W1 became a Civil Contractor.

SRK,JCri.A.No.1062of2007

(b) That in the month of July,1998, P.W1 came to hisoffice and asked loan of Rs.900/- and thereupon, P.W1 was askedto come on next day and collect from the wife of the accused officerand he also informed his wife to pay a sum of Rs.900/- to P.W1;that accordingly, P.W1 collected the amount of Rs.900/- from thewife of accused officer, but did not repay the loan even after lapseof three months.

(c) That two eastern shopsin the Block of 5 shopsinShirdi Sai Baba Temple Road, Narsipatnam market, was allotted toP.W1andthe estimated valuefor the saidcontract workwasRs.70,000/- andthe westernside two shops wereallottedtoanother contractor viz. Etamsetty Rambabu for the same estimatedvalue andthat,themiddle shop wasnotallottedto anybody,therefore,the allotted214 shops estimationof Rs.95,000/-isincorrect: that there was understanding between P.W1 and anothercontractor with the Supervisor and constructed the middle shop;that the shops were constructed up to lintel level; P.W1 and anothercontractor presented bills, each claiming Rs.44,800/- and oddforconstruction of 214 shops each and the accused officer scrutinizedthe bills and put up note to the MPDO and the allowable amount isonly Rs.33,966/- and payable amount is Rs.29,284/-; that he alsoShirdi Sai Baba Temple Road, Narsipatnam market, was allotted toP.W1andthe estimated valuefor the saidcontract workwasRs.70,000/- andthe westernside two shops wereallottedtoanother contractor viz. Etamsetty Rambabu for the same estimatedvalue andthat,themiddle shop wasnotallottedto anybody,therefore,the allotted214 shops estimationof Rs.95,000/-isincorrect: that there was understanding between P.W1 and anothercontractor with the Supervisor and constructed the middle shop;that the shops were constructed up to lintel level; P.W1 and anothercontractor presented bills, each claiming Rs.44,800/- and oddforconstruction of 214 shops each and the accused officer scrutinizedthe bills and put up note to the MPDO and the allowable amount isonly Rs.33,966/- and payable amount is Rs.29,284/-; that he also told P.W1 to pay the borrowed amount after encashing the cheque;that P.W1developed grudgeandon07.11.1998,theaccusedofficer handed over the cheque to P.W1 and another[contractor][ too,]but hedidnot demand P.W1to pay the bribe amount;thaton10.11.1998 the tenders were opened at 4.30 p.m. andit went up to6.00 p.m. and sometime later, P.W1 asked the accused[officer][ for]return of demand drafts in unsuccessful tenders, but[did not][ submit]Ex.P1-applicationtoP.W11;thatP.W1encashedthechequeamount, but did not repay the borrowed loan amount[of][ Rs.900/-.]

(d) Thaton12.11.1998P.W1cametohisofficeandhanded over Rs.900/- saying that he was paying the[loan][ amount]and the accused officer took the money from P.W1 and[informed]that the amount would be repaid four months later;[that][ half][ an][ hour]later P.W1left the office and thereafter, P.W4 DSP, ACB, camealong with trap party and laid the present case; that[P.W3][ as][ not]present during the trap proceedings and the accusedofficer wasfalsely implicated.

8. On behalf of defence, D.Ws.1 to 4 were examined andgot exhibited Exs.DI to D4.got exhibited Exs.DI to D4.

10

SRK.JCri.A.No. 1062 of 2007

9. The learned Special Judge convicted the appellant/AOof the charges under Sections 7 and 13 (2) read with 13 (1) (d) ofthe PC Act, 1988 in terms of Section 248 (2) CrPC and[sentenced]him, as stated supra. Challenging the same, the present[Criminal]Appeal has been preferred by the appellant/AO.of the charges under Sections 7 and 13 (2) read with 13 (1) (d) ofthe PC Act, 1988 in terms of Section 248 (2) CrPC and[sentenced]him, as stated supra. Challenging the same, the present[Criminal]Appeal has been preferred by the appellant/AO.

10. Learned counsel for the appellant/AO would contendthat there is inconsistency in the evidence of material prosecutionwitnesses and their evidence did not establish the demand made bythe accused officer and presumption under Section 20 of the PCAct cannot be drawn basing on the circumstantial evidence.Itisfurther contended that except the evidence of P.W1, thereis noevidence to corroborate the evidence of P.W1 and therefore,[the]conviction cannot be based on the sole testimony of P.W1, whichisfull of inconsistencies. The learned counsel further contends thatthespontaneousexplanationgivenbytheaccusedofficer,incorporatedinEx.P21-Post-trapProceedings,establishesthedefencetakenbytheaccusedofficerandthesamewassubstantiated with the evidence of D.W3, Retired Mandal Engineer,who deposed about the actual contract estimates amount that wasallottedto P.W1. Therefore, the evidence of P.W1isnot whollyreliableandtrustworthytoconvicttheappellant/AO,butthesethat there is inconsistency in the evidence of material prosecutionwitnesses and their evidence did not establish the demand made bythe accused officer and presumption under Section 20 of the PCAct cannot be drawn basing on the circumstantial evidence.Itisfurther contended that except the evidence of P.W1, thereis noevidence to corroborate the evidence of P.W1 and therefore,[the]conviction cannot be based on the sole testimony of P.W1, whichisfull of inconsistencies. The learned counsel further contends thatthespontaneousexplanationgivenbytheaccusedofficer,incorporatedinEx.P21-Post-trapProceedings,establishesthedefencetakenbytheaccusedofficerandthesamewassubstantiated with the evidence of D.W3, Retired Mandal Engineer,who deposed about the actual contract estimates amount that wasallottedto P.W1. Therefore, the evidence of P.W1isnot whollyreliableandtrustworthytoconvicttheappellant/AO,butthese aspects have not been considered by the learned Special Judge[ in]right perspective, and as such, prayed for acquittal[of][ the][ appellant/]AO.

11. Sri S.Syam Sundar Rao,learned Standing Counsel-cum-SpecialPublicProsecutor for ACB wouldcontendthattheevidence of P.W1is consistent and cogent with regard[to][ demand]madebytheappellant/AOandonthedateof thetrap,theappellant/AO was caught red-handed whileacceptingtheillegalgratification from P.W1to do the official favour.[The][ evidence]ofP.W2,RevenueOfficer,MunicipalCorporation,Visakhapatnam,who acted as one of the mediators on the date of trap, is cogent.consistentandcorroboratestheevidenceofP.W1.Hefurthercontendedthat the evidenceofP.W3, who workedasMandalCooperativeandRuralDevelopmentOfficer,MPDOOfficeNarsipatnam during the relevant point of time, establishes[that][ there]is a demand made by the appellant/AO and such evidence coupledwith the evidence of P.Ws.1, 2 and 4, proved that on[the][ date][ of]trap, the accused officer accepted the illegal gratification[from][ P.W1]andconsequently,taintedamountwasrecoveredfromthepossessionofappellant/AOandassuch,thedemandandacceptance are established beyond reasonable doubt.[He][ further]cum-SpecialPublicProsecutor for ACB wouldcontendthattheevidence of P.W1is consistent and cogent with regard[to][ demand]madebytheappellant/AOandonthedateof thetrap,theappellant/AO was caught red-handed whileacceptingtheillegalgratification from P.W1to do the official favour.[The][ evidence]ofP.W2,RevenueOfficer,MunicipalCorporation,Visakhapatnam,who acted as one of the mediators on the date of trap, is cogent.consistentandcorroboratestheevidenceofP.W1.Hefurthercontendedthat the evidenceofP.W3, who workedasMandalCooperativeandRuralDevelopmentOfficer,MPDOOfficeNarsipatnam during the relevant point of time, establishes[that][ there]is a demand made by the appellant/AO and such evidence coupledwith the evidence of P.Ws.1, 2 and 4, proved that on[the][ date][ of]trap, the accused officer accepted the illegal gratification[from][ P.W1]andconsequently,taintedamountwasrecoveredfromthepossessionofappellant/AOandassuch,thedemandandacceptance are established beyond reasonable doubt.[He][ further]

SRK,JCrl.A.No.1062of2007

submitsthat thelearnedSpecial Judge, upon considering theevidence on recordiin right perspective, found the appellant/AOguilty of the offences, with which. he was charged and accordingly,rightly convicted and sentencedhim, and there are no grounds tointerfere with the impugned judgment.

12. Now the point for consideration

is-

‘Whether the prosecution has proved its case againstthe appellant/AO for the charges leveled against himAe. Sections 7, 13 (2) read with 13 (1) (d) of thePreventionofCorruptionAct,1988,beyondreasonable doubt, and whether theJudgment of thetrial Court is legal correct and proper?

13. In order to attract an offence under Section 7 of thePCAct, 1988, thenecessary ingredients to be establishedare that theappellant herein/AO is a public servant and that heaccepted orobtainedgratificationotherthanlegalremunerationandthegratification was to doan official favour. Under Section13(1)(d) ofthe PC Act, 1988,ifa public servant, by corrupt or illegal means orby otherwise abusing hisposition as public servant, obtains forhimself or forany other personany valuable thing or pecuniaryadvantage, he is guilty of criminal mimisconduct punishable underSection 13(2) of the PC Act, 1988. an offence under Section 7 of thePCAct, 1988, thenecessary ingredients to be establishedare that theappellant herein/AO is a public servant and that heaccepted orobtainedgratificationotherthanlegalremunerationandthegratification was to doan official favour. Under Section13(1)(d) ofthe PC Act, 1988,ifa public servant, by corrupt or illegal means orby otherwise abusing hisposition as public servant, obtains forhimself or forany other personany valuable thing or pecuniaryadvantage, he is guilty of criminal mimisconduct punishable underSection 13(2) of the PC Act, 1988.

14. Theappellantherein/AOwasworkingasSeniorAssistant in the office of the Mandal Parishad Development Officer,Narsipatnam Mandal, Visakhapatnam District, at the[relevant][ point]of time of the incident. Therefore, there is no dispute[that][ he][ was][ a]public servant within the meaning of Section 2 (c)[of][ the][ PC][ Act,]1988.

15. P.W1, who set the criminal law into motion by lodgingEx.P2-report,reiteratedthecontentsofhisreportinhisexamination-in-chief.In the cross-examination, P.W1 deposed thatoriginally, the tenders were called for, for construction[of][ two][ shops,]but subsequently, construction of half of one shop[was][ also][ allotted]to him without calling for tenders. He exhibited Ex.P5-certified[copy]ofM-Book,whereinitwasmentionedthatanamountofRs.44,066.87paise wasdue. He further deposedinhiscross-examination that in 2000-2001, a shop was allotted to him basingon his tender and possession was given to him in the[year][ 2003.] Hedenied the suggestion that as the accused officer was[coming][ in][ the]way of his illegal activities, P.W1 gave false complaint.[He][ also]denied the suggestion that the accused officer was[his][ neighbour]during the year 1975.Ex.P2-report,reiteratedthecontentsofhisreportinhisexamination-in-chief.In the cross-examination, P.W1 deposed thatoriginally, the tenders were called for, for construction[of][ two][ shops,]but subsequently, construction of half of one shop[was][ also][ allotted]to him without calling for tenders. He exhibited Ex.P5-certified[copy]ofM-Book,whereinitwasmentionedthatanamountofRs.44,066.87paise wasdue. He further deposedinhiscross-examination that in 2000-2001, a shop was allotted to him basingon his tender and possession was given to him in the[year][ 2003.] Hedenied the suggestion that as the accused officer was[coming][ in][ the]way of his illegal activities, P.W1 gave false complaint.[He][ also]denied the suggestion that the accused officer was[his][ neighbour]during the year 1975.

SRK,JCrt.A.No.1062 of 2007

SRK,JCrt.A.No.1062 of 2007

16. P.W1 further deposed in his cross-examination that hewasgiven work order for two shops only and two other shopsweregiven to L.W8-E.Rambabu and at that time, the middle shopwasleft without being given to anybody: that during his contractorship,prior to the trap proceedings, he gave 10 demand drafts totheMPDO with a covering letter and the MPDO endorsedits receiptand kept in the office; that the tenders were opened from 10.00 a.m.to 1.00 p.m. on 10.11.1998. P.W1 identified Exs.P8 and P9-tendernotices;thatinEx.P8,it was mentioned that the tenderswereopened at 4.30 p.m. on 10.09.1998; that the contractors were notgiven any amendment with reference to the time of openingoftenders; that he does not have an idea as to how many[tenders]were opened on 10.11.1998; that about twenty contractors attendedon 10.11.1998 at the time of opening of tenders; that the MPDOdeclared to whom the tenders were granted, but papers[were][ not]issued to the declared contractors; that P.W1 was present[at][ the]office of the MPDO on 10.11.1998 up to 6.00 p.m. P.W1 specificallydeposed that he had not given Ex.P1 to MPDO, but he gaveit tothe accused officer addressing it to the MPDO; that P.W1 had madebill for Rs.44,800/- and odd. P.W1 specifically deposed[that][ when]the accused officer told him that there were no grants[for][ the][ work]wasgiven work order for two shops only and two other shopsweregiven to L.W8-E.Rambabu and at that time, the middle shopwasleft without being given to anybody: that during his contractorship,prior to the trap proceedings, he gave 10 demand drafts totheMPDO with a covering letter and the MPDO endorsedits receiptand kept in the office; that the tenders were opened from 10.00 a.m.to 1.00 p.m. on 10.11.1998. P.W1 identified Exs.P8 and P9-tendernotices;thatinEx.P8,it was mentioned that the tenderswereopened at 4.30 p.m. on 10.09.1998; that the contractors were notgiven any amendment with reference to the time of openingoftenders; that he does not have an idea as to how many[tenders]were opened on 10.11.1998; that about twenty contractors attendedon 10.11.1998 at the time of opening of tenders; that the MPDOdeclared to whom the tenders were granted, but papers[were][ not]issued to the declared contractors; that P.W1 was present[at][ the]office of the MPDO on 10.11.1998 up to 6.00 p.m. P.W1 specificallydeposed that he had not given Ex.P1 to MPDO, but he gaveit tothe accused officer addressing it to the MPDO; that P.W1 had madebill for Rs.44,800/- and odd. P.W1 specifically deposed[that][ when]the accused officer told him that there were no grants[for][ the][ work]

SRK, JCrl A No.1062 of 2007

allotted and the amount for a sum of Rs.29,000/- would be paid, heaccepted to receive the said sum. According to him,[he][ went][ to][ the]MPDO Office on6**^ andof November, 1998. P.W1 furtherdeposed that on 07.11.1998, he along with another Contractor[viz.]L.W8/ E.Rambabu, who got constructed the other two[and]halfshops, received Rs.29,000/- and odd.

17. A perusal of the evidence of P.WI goes to show thathe gaveten demanddraftsto the MPDO,Narsipatnamwithacoveringletter for the tenders called by the saidoffice.Itis theevidence of P.WIthat he was successful for two tenders[and][ he]was sanctioned two works i.e. laying of roads in Mondikandi[village]vide Tender Notice Rc.No.96/98, dated 15.09.1995 for[a][ sum]ofRs.50,000/- andconstructionof five shopsvide TenderNoticeRc.No.96/97,dated02.10.1998forRs.95,000/-.Aspertheevidence of P.WI, the construction work of two and half shops outof five shops, was allotted to P.WIand remaining two[and]halfshops were allotted to another contractori.e. L.W8/E.Rambabu.The evidence of P.WI further goes to show that when[the][ accused]officer informed him that there are no grants for the[work][ allotted][ to]P.WI and only a sum of Rs.29,000/- would be paid for[the][ present]out of the bill for Rs.44,800/- submitted by P.WI,[P.WI][ accepted][ to]he gaveten demanddraftsto the MPDO,Narsipatnamwithacoveringletter for the tenders called by the saidoffice.Itis theevidence of P.WIthat he was successful for two tenders[and][ he]was sanctioned two works i.e. laying of roads in Mondikandi[village]vide Tender Notice Rc.No.96/98, dated 15.09.1995 for[a][ sum]ofRs.50,000/- andconstructionof five shopsvide TenderNoticeRc.No.96/97,dated02.10.1998forRs.95,000/-.Aspertheevidence of P.WI, the construction work of two and half shops outof five shops, was allotted to P.WIand remaining two[and]halfshops were allotted to another contractori.e. L.W8/E.Rambabu.The evidence of P.WI further goes to show that when[the][ accused]officer informed him that there are no grants for the[work][ allotted][ to]P.WI and only a sum of Rs.29,000/- would be paid for[the][ present]out of the bill for Rs.44,800/- submitted by P.WI,[P.WI][ accepted][ to]

SRK,JCr1.A.No.1062of2007

receive the said sum of Rs.29,000/- and he denied the suggestionthat he bore grudge against the accused officer as he was paid withonlyRs.29,000/- whenthebillwaspresentedforasumofRs.44,800/- and odd.It is the specific evidence of P.W1 that rightfrom 04.11.1998 he was demanding the accused officer[to][ issue]cheque and when there was no grants, he accepted the[amount][ for]a sum of Rs.29,000/- out of Rs.44,800/-.

18. A perusal of the evidence of P.W1 further goes to showthat during the pendency of the present case, on 08.02.2006,[he]was offered a sum of Rs.1.00 lakh and he was threatened with direconsequences for withdrawal of the case andin that regard, hegave Ex.P22-report to the Deputy Superintendent of Police. Nothingcould be elicitedin the cross-examination of P.W1 by the learneddefence counsel to establish that P.W1 got prior acquaintance[with]the accusedofficer andhe borrowed amount fromthe accusedofficer and acceptance of amount from P.W1 on the date of trap, isonly towards discharge of hand loan that was taken by P.W1 fromthe accusedofficer, but not to comply the demand made by theaccused officer towards illegal gratification.that during the pendency of the present case, on 08.02.2006,[he]was offered a sum of Rs.1.00 lakh and he was threatened with direconsequences for withdrawal of the case andin that regard, hegave Ex.P22-report to the Deputy Superintendent of Police. Nothingcould be elicitedin the cross-examination of P.W1 by the learneddefence counsel to establish that P.W1 got prior acquaintance[with]the accusedofficer andhe borrowed amount fromthe accusedofficer and acceptance of amount from P.W1 on the date of trap, isonly towards discharge of hand loan that was taken by P.W1 fromthe accusedofficer, but not to comply the demand made by theaccused officer towards illegal gratification.

19. P.W2,whoworkedasSuperintendent,MunicipalCorporation,VisakhapatnamduringtherelevantpointoftimeCorporation,Visakhapatnamduringtherelevantpointoftime deposed in his evidence with regard to P.W1 approaching[the][ ACB]Officials aggrieved by the demanding a sum of Rs.900/-[towards]bribe by the accused officer.His evidenceis also with regard toprocedureconductedforpreparationofEx.P7-Pre-trapproceedings,Ex.P21-Post-trapProceedings,seizureoftaintedcurrency notes from the possessionof the accusedofficer[and]conducting chemical test to both hands fingers of theaccusedofficer. Nothing is elicited in his cross-examination[to][ establish][ that]theprocedurefollowedinconductingpre-trapandpost-trapproceedingsandrecoveryoftaintedcurrencynotesfromthepossession of the accused officer as not according[to][ law.]

20. ThecrucialwitnessthatwasexaminedbytheprosecutioninthiscaseisP.W3,whoworkedasMandalCooperativeandRuralDevelopmentOfficer,MPDOOffice,Narsipatnam during the relevant point of time. He deposedinhisevidence that on 07.11.1998 at about 11.00 a.m., P.W1[came][ to][ the]office and met the accused officer, who in turn demanded[1%][ for]him and 2% for MPDO and thereupon, P.W1 was given cheque[and]stated to him to encash the cheque and pay the demanded[bribe]amount. He further deposed that P.W1 again came to[his office][ on]10.11.1998 at about 10.30 a.m., and requested the accused[officer]prosecutioninthiscaseisP.W3,whoworkedasMandalCooperativeandRuralDevelopmentOfficer,MPDOOffice,Narsipatnam during the relevant point of time. He deposedinhisevidence that on 07.11.1998 at about 11.00 a.m., P.W1[came][ to][ the]office and met the accused officer, who in turn demanded[1%][ for]him and 2% for MPDO and thereupon, P.W1 was given cheque[and]stated to him to encash the cheque and pay the demanded[bribe]amount. He further deposed that P.W1 again came to[his office][ on]10.11.1998 at about 10.30 a.m., and requested the accused[officer]

SRK,JCriA.No.1062of2007

to return the demand drafts submitted by him, as those works werenot allotted to him and the accused officer stated that those demanddrafts would be returned after payment of demanded bribe amounton 07.11.1998. P.W3 further deposed that again on 12.11.1998P.W1 came to the office at 10.30 a.m. along with an application forreturn of demand drafts; that again the accused officer[reiterated]the earlier demand for bribe and thereupon, P.W1 gave[Rs.900/-][ to]the accused officer and later, within minutes, the ACB trap partyentered into the office.

21. Inthe cross-examinationof P.W3,learned defencecounsel suggested to P.W3 that he wasin the habit of interferingwith others’ affairs and not attending the workintheofficeandmisappropriating monies after collecting unauthorizedly,[but]it wasdenied by P.W3. He concedes that he was repatriated to his parentdepartment by the MPDO, Narsipatnam vide RC No.36/2000,[dated]16.05.2000; that the accused officer did not say anything, except toget the cheque encashed and to give the demanded money;[that][ at]that particular moment, the accused officer did not tell P.W1 aboutthe amount of thebill claimed,orbill allowedorfor how muchamount cheque would be issued.counsel suggested to P.W3 that he wasin the habit of interferingwith others’ affairs and not attending the workintheofficeandmisappropriating monies after collecting unauthorizedly,[but]it wasdenied by P.W3. He concedes that he was repatriated to his parentdepartment by the MPDO, Narsipatnam vide RC No.36/2000,[dated]16.05.2000; that the accused officer did not say anything, except toget the cheque encashed and to give the demanded money;[that][ at]that particular moment, the accused officer did not tell P.W1 aboutthe amount of thebill claimed,orbill allowedorfor how muchamount cheque would be issued.

22. A perusal of the evidence of P.W3 goes to show that,his evidence corroborates the evidence of P.W1 with regard to theearlier demand made by the accused officer and also[on][ the][ date][ of]trap. P.W3 fairly conceded about the allegations that[were][ initiated]against him by the MPDO,Narsipatnamvide R.C.No.36/2000,dated16.05.2000withregardtorepatriationtohisparentdepartmentandvideR.C.No.36/2000,dated25.05.2000withregard to not remitting the amount of Rs.1,800/- collected[from][ one]Lanka Sankararao towards rent of coffee hotel from April, 1998 toMarch, 1999. Though, the learned defence counsel succeededineliciting the nature of work of P.W3,it is no way[concerned][ to][ the]case facts, for the reason that, the evidence of P.W3[coupled][ with]the evidence of P.W1, corroborates the case of prosecution[and]itestablishes that the accusedofficer demanded P.W1to pay thebribe for returning eight demand drafts that were submitted[to][ the]MPDO, Narsipatnam in respect of the tenders called[for,][ by][ the][ said]office andin that process only, the accused officer[accepted][ the]illegal gratification from P.W1 for doing such official[favour.]his evidence corroborates the evidence of P.W1 with regard to theearlier demand made by the accused officer and also[on][ the][ date][ of]trap. P.W3 fairly conceded about the allegations that[were][ initiated]against him by the MPDO,Narsipatnamvide R.C.No.36/2000,dated16.05.2000withregardtorepatriationtohisparentdepartmentandvideR.C.No.36/2000,dated25.05.2000withregard to not remitting the amount of Rs.1,800/- collected[from][ one]Lanka Sankararao towards rent of coffee hotel from April, 1998 toMarch, 1999. Though, the learned defence counsel succeededineliciting the nature of work of P.W3,it is no way[concerned][ to][ the]case facts, for the reason that, the evidence of P.W3[coupled][ with]the evidence of P.W1, corroborates the case of prosecution[and]itestablishes that the accusedofficer demanded P.W1to pay thebribe for returning eight demand drafts that were submitted[to][ the]MPDO, Narsipatnam in respect of the tenders called[for,][ by][ the][ said]office andin that process only, the accused officer[accepted][ the]illegal gratification from P.W1 for doing such official[favour.]

23. P.W4, who worked as Deputy Superintendent of Police,ACB, Visakhapatnam Range at relevant point of time,[deposed][ in]his evidence about P.W1 giving Ex.P2-report on 11.11.1998[and]ACB, Visakhapatnam Range at relevant point of time,[deposed][ in]his evidence about P.W1 giving Ex.P2-report on 11.11.1998[and]

SRK,JCi1A.No.1062of2007

he, registering Ex.P23-FIR, securing the presence of[mediators][ and]got preparingEx.P7-Pre-trap proceedings andEx.P21-Post-trapproceedingsinthepresenceof mediators andrecoveringthetainted currency notes from the possession of the accused officerand conducting medical test to both hands fingers of[the][ accused]officer. Except suggestions with regard to manner of investigationconducted by P.W4, nothingis elicited from his cross-examinatio[n]by the learned defence counsel.

24. The accused officer got examined his wife as D.W1,whodeposedinherevidencethatthe accusedofficerisherhusband and they both resided in a rented house belonged[to][ the]relatives of P.W1in the year 1975 and at that time, the age of P.W1was7or8years.Shefurther deposedthat P.W1wasdoingcontract works and he used to visit their house during the period1997 and he usedto receive hand loans of Rs.lOO/- or Rs.200/-from her on number of occasions.It is her specific[evidence][ that]five or six months prior to the trap proceedings, the[accused][ officer]had given Rs.900/- to her and instructed her to give[the][ same][ to]P.W1onhisvisit and accordingly she gave theaid[sum]to theaccusedofficer onhisvisit to her house and the saidsumwaswhodeposedinherevidencethatthe accusedofficerisherhusband and they both resided in a rented house belonged[to][ the]relatives of P.W1in the year 1975 and at that time, the age of P.W1was7or8years.Shefurther deposedthat P.W1wasdoingcontract works and he used to visit their house during the period1997 and he usedto receive hand loans of Rs.lOO/- or Rs.200/-from her on number of occasions.It is her specific[evidence][ that]five or six months prior to the trap proceedings, the[accused][ officer]had given Rs.900/- to her and instructed her to give[the][ same][ to]P.W1onhisvisit and accordingly she gave theaid[sum]to theaccusedofficer onhisvisit to her house and the saidsumwas repaid by P.W1to the accused officer on the date of[trap][ and he]implicated the accused officer in the present case[falsely.]

25. Inhercross-examination,D.W1deposedthatthealleged borrowing of amount by P.W1 from the accused[officer]isoral and she had not noted the date of payment of amount[to][ P.W1;]that she does not know the purpose of borrowing the amount[ by]P.W1 and she did not inquire either the accused officer[or][ P.W1]about the purpose of lending and borrowing the amount.[She][ further]deposed that she does not remember the day, date and[month][ of]borrowing the amount by P.W1, but she deposed that[the][ accused]officer was trapped on 14.11.1998.alleged borrowing of amount by P.W1 from the accused[officer]isoral and she had not noted the date of payment of amount[to][ P.W1;]that she does not know the purpose of borrowing the amount[ by]P.W1 and she did not inquire either the accused officer[or][ P.W1]about the purpose of lending and borrowing the amount.[She][ further]deposed that she does not remember the day, date and[month][ of]borrowing the amount by P.W1, but she deposed that[the][ accused]officer was trapped on 14.11.1998.

26. D.W2, whowasIn-chargeof MPDO,Narsipatnamdeposed in his evidence about the procedure of calling,[receiving,]opening and accepting tenders. His evidence is also[to][ the][ effect]that the time and date of opening would be endorsedoneachtender sealed cover.andif the tenders opening are adjourned, theadjournment date would be informed to all the tenderers[and][ also]notice would be affixedin the Notice Board. His evidence[further]discloses that after receipt of summons, he went to[Narsipatnam]and searchedfor the called for records,but his evidence[would]reveal that the record was not traced and it was misplaced.deposed in his evidence about the procedure of calling,[receiving,]opening and accepting tenders. His evidence is also[to][ the][ effect]that the time and date of opening would be endorsedoneachtender sealed cover.andif the tenders opening are adjourned, theadjournment date would be informed to all the tenderers[and][ also]notice would be affixedin the Notice Board. His evidence[further]discloses that after receipt of summons, he went to[Narsipatnam]and searchedfor the called for records,but his evidence[would]reveal that the record was not traced and it was misplaced.

SRK,JCrt.A.No. 1062 of 200727.D.W3, who workedas Mandal EngineeringOfficer(Supervisor) in MPDO, Narsipatnam from1996 to 2002, deposed inhis evidence thatEx.PS-certifiedcopyof M-Bookpertainstocontract work done by P.W1 andiIts estimate was Rs.70,000/-inrespect of construction of two shops in Shirdi Saibaba Temple roadEastern side market of Narsipatnam.He further deposed that thedeposit of demand drafts by the bidderswould be returned onlyafter finalization ofteners.

28. D.W4ISthe accusedofficer,Hedeposedinhisevidence that he collected Ex.D4-certified copy of JudgmentinCalendar Case No. 10 of 2003on the file of the learned SpecialJudge for CBI Cases, Visakhapatnam.

29. Learnedcounselfortheappellant/accusedofficerwould contend that the taintedamount that was seized from thepossession of the accused officer is the amount due by P.W1 thatwas borrowed from the accused officer towards hand loan prior tothe trap and the accused officergave spontaneous explanation withregard to acceptance of the taintedamount from P.W1 to the ACBofficials on the date of trap, whichis substantiated with the evidenceof D.WI.It is his submission thatmere recovery of taintedmoneyfrom the possession ofaccused officer is not sufficient toconvictappellant/accusedofficerwould contend that the taintedamount that was seized from thepossession of the accused officer is the amount due by P.W1 thatwas borrowed from the accused officer towards hand loan prior tothe trap and the accused officergave spontaneous explanation withregard to acceptance of the taintedamount from P.W1 to the ACBofficials on the date of trap, whichis substantiated with the evidenceof D.WI.It is his submission thatmere recovery of taintedmoneyfrom the possession ofaccused officer is not sufficient toconvict the accused when substantive evidence led by the prosecutionisnot reliable. He placed reliance on the proposition[of][ law][ laid][ down]in C.M.Girish Babu v. CBI, Cochin, High Court of Kerala\[wherein]the Hon’ble Aped Court held as under (paragraph No. 18):

“Mere recovery of tainted money divorced from thecircumstances under whichitis paidis not sufficienttoconvict the accused when the substantive evidencein thecase is not reliable. The mere recovery by Itself cannot provethe charge of the prosecution against the accused,intheabsence of any evidence to prove payment of bribe or[to]showthattheaccusedvoluntarilyacceptedthe moneyknowing it to be bribe. ”

30. Further,inPunjabraov.State of Maharashtra^ theHon’ble Supreme Court held as under (Paragraph No.3):Hon’ble Supreme Court held as under (Paragraph No.3):

Issues

“...Itistoowellsettledthatina casewheretheaccusedoffersanexplanationfor receiptof theallegedamount, the question that arises for consideration[is][ whether]that explanation can be said to have been established.It isfurther clear that the accused is not required to establish[his]defencebyprovingbeyondreasonabledoubtastheprosecution, but can establish the same by preponderanceof probability.”

’ (2009) 3 Supreme Court Cases 779.

^ (2002) 10 Supreme Court Cases 371.

SRK.JCrf.A.No. 1062 of 2007

31. In another case made in State through InspectorofPolice, AP u. K.Narasimhachary^, whereinthe Hon’ble SupremeCourt held as under (paragraph No.24); “Having regard to the facts and circumstances of thiscase, we are of the opinion that two viviews are possible andthe view of the High Courtcannot be said to be whollyimprobable;it cannot be said,inview of the discussionsmade hereinbefore,that the materialsbrought on recordwould lead to onlyone conclusioni.e.theguilt of theaccused.”

32. A perusal of the evidence of D.Ws.1to 4 goes to showthat, D.W1, being the wife of theaccused officer, can be termed asinterested witness. Shewas examined by the Court on 06.06.2007.Thoughthedateof trapwason12.11.1998inthecross-examination,D.W1wasableto deposethe dateoftrapas14.11.1998,but whenshewas questionedasto when P.W1borrowed amount from the accused officer,she was not even ableto depose either day, dateor month or even year of such borrowing.No doubt, the accused officergave spontaneous explanation to theACB Officialson the date of trap, with regard to the amount thatwas accepted, as that ofrepayment of hand loan taken by P.W1to 4 goes to showthat, D.W1, being the wife of theaccused officer, can be termed asinterested witness. Shewas examined by the Court on 06.06.2007.Thoughthedateof trapwason12.11.1998inthecross-examination,D.W1wasableto deposethe dateoftrapas14.11.1998,but whenshewas questionedasto when P.W1borrowed amount from the accused officer,she was not even ableto depose either day, dateor month or even year of such borrowing.No doubt, the accused officergave spontaneous explanation to theACB Officialson the date of trap, with regard to the amount thatwas accepted, as that ofrepayment of hand loan taken by P.W1

^ (2005) 8 Supreme Court Cases 364.

■f

r

i

SRK,JCrl.A.No.1062of2007

from the accused officer andin order to substantiate the same, theaccusedofficer got examined D.W1, whois none other[than]hiswife. As per the evidence of D.W1, the amount that[was][ borrowed]by P.W1 was oral and there is no documentary proof. Therefore,itcan be presumed that D.W1, being the wife of the accused officer,without there being any proof or evidence, came to[the][ rescue][ of]her husband to give force to the spontaneous explanation given bythe accusedofficer to the ACBofficials on the date of trap. Theevidence of D.W1is not wholly reliable and trustworthy.

33. D.W4,theaccusedofficerexhibitedEx.D4-certified

copy of Judgment in Calendar Case No.10 of 2003 on[the][ file][ of][ the]learned Special Judge for CBI Cases, Visakhapatnam[to][ visualize]thenatureandcharacterofP.W1thatheisinthehabitofimplicatingthepublicofficialsin ACB cases. A perusalof theaforesaid Judgment goes to show that, the accused officer[therein]was working as FieldOfficer,State Bank of India andhe wastrapped on the ground that P.W1 was asked to pay bribe[amount][ of]Rs. 1,000/- for issuing a fresh demand draft to be[drawn]in favour ofM/s. K.L.N.Prasad Agencies, Vijayawada by cancelling[the][ earlier]demand draft issued in favour of M/s. Sunil Engineering Company,Vijayawada. Admittedly, the said case endedin acquittal[and][ the]

SRK,JCri.A.No.1062of2007case facts, evidence led by the prosecution and the findingarrivedby the learned Judge in the saidcase is not relevant to the case onhand, at present. Mere filing another ACBcase by P.W1 againstanother public servant is not a ground to come to a conclusion thatP.W1 is in the habit of filing ACB cases.

34. There is substantive evidence led by the prosecutionwhich clearly establishes the guilt of the accused officer beyondreasonable doubt and their evidence did not make this Court to taketwo possible views, and the explanation offered by[the]accusedofficeris not at all established byany cogent andconvincingevidence. Even soon after thepre-arranged signal made by P.W1,the trap laying party reached the office of the appellant/accusedofficer and conducted Sodium Carbonate solution test on both handfingers of the accused officer, which proved positive. The taintedamount was also seized from the possession of the accused officer.In view of the same, the aforesaid contentions submitted by thelearned counsel for the appellant have no legs to stand.which clearly establishes the guilt of the accused officer beyondreasonable doubt and their evidence did not make this Court to taketwo possible views, and the explanation offered by[the]accusedofficeris not at all established byany cogent andconvincingevidence. Even soon after thepre-arranged signal made by P.W1,the trap laying party reached the office of the appellant/accusedofficer and conducted Sodium Carbonate solution test on both handfingers of the accused officer, which proved positive. The taintedamount was also seized from the possession of the accused officer.In view of the same, the aforesaid contentions submitted by thelearned counsel for the appellant have no legs to stand.

35. From the foregoing discussion,I am of the consideredopinion that the learned Special Judge, on proper appreciation[of]the entire oral and documentary evidence on record and taking allthe above aspects into consideration, has rightly found[the]accusedopinion that the learned Special Judge, on proper appreciation[of]the entire oral and documentary evidence on record and taking allthe above aspects into consideration, has rightly found[the]accused SRK, JCrl.A.No.1062of2007

officer guilty of the charges leveled against him and,[accordingly,]convictedfor theaforesaidcharges andIseenoreasonstointerfere with the same.

36. Accordingly,theCriminalAppealisdismissedconfirming the Judgment, dated 07.08.2007 passedinCalendarCase No.86 of 2007 by the learned Special Judge for[ACB][ Cases-]cum-lil Additional District Judge, Visakhapatnam.

Consequently, miscellaneous petitions,if any, pending[in][ this]Criminal Appeal shall stand closed.

Sd/- E KAMESWARA RAOJOINT REGISTRAR//TRUE COPY//7^SECT ON OFFICER

To,

1. The Special Judge for ACB Cases-cum-lll Additional[District][ &][ Sessions]Judge, Visakhapatnam, Visakhapatnam District. (With records)Judge, Visakhapatnam, Visakhapatnam District. (With records)2. TheStationHouseOfficer,ACB,Visakhapatnam,VisakhapatnamDistrict.District.

3. One CC to Sri O.Kailashnath Reddy, Advocate [OPUC]

4. Two GO'S to the Special Public Prosecutor for ACB, High Court ofAndhra Pradesh at Amaravati [OUT]Andhra Pradesh at Amaravati [OUT]

5. The Section Officer, Criminal Section, High Court of A.P, Amaravati.

6. Two CD Copies

BSV

sree

HIGH COURTDATED:28/04/2025

JUDGMENT

CRLA No.1062 of 2007

DISMISSING THE CRIMINAL APPEAL

&m^0 5 JUL 2025CoS^y^CyrrantSectigti^^