HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.898 OF 2007
JUDGMENT:
This Criminal Appeal, under Section 378(3) and (1) of the Code of Criminal Procedure, 1973 (for short, ‗the Cr.P.C'), is filed by the State, being represented by Inspector of Police, Anti Corruption Bureau (ACB), Eluru Range, Eluru questioning the judgment in Calendar Case No.20 of 2000, dated 29.11.2005, on the file of the Court of Special Judge for SPE and ACB Cases, Vijayawada (for short, ‗the Special Judge'), where under the learned Special Judge acquitted the accused of the charges under Sections 7 and 13(2) R/w. 13(1)(d) of the Prevention of the Corruption Act, 1988 (for short, ‗the PC Act').
2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The State, represented by Inspector of Police, Eluru Range, Eluru filed the charge sheet in Crime No.9/ACB-RC(T)-EWG/99 of ACB, Eluru Range alleging the offences under Sections 7 and 13(2) R/w. 13(1)(d) of the PC Act. The case of the prosecution, in brief, according to the charge sheet averments, is as follows: 2
AVRB,J Crl.A. No.898/2007 The Accused Officer (AO), Kadiyam Jaya Raju, worked as Assistant Engineer, Rural Water Supply, Panchayat Raj Department, Jeelugumilli Mandal, West Godavari District from 01.02.1999 to 09.06.1999. He is a public servant within the meaning of Section 2(c) of the PC Act. LW.1 - Sri Vendra Rajendra Babu, farmer, has an extent of Ac.5.00 cents of agricultural dry land. A sum of Rs.40,000/- was sanctioned to LW.1 by B.C.
Corporation towards execution of Dug-cum-Borewell. Accordingly, a cheque was issued. LW.1 was advised to start the work by the by the Accused Officer. He completed the work of drilling in the month of April, 1999 and approached the AO, who demanded 10% of the cheque amount of Rs.40,000/- i.e., Rs.4,000/- as illegal gratification to do official favour of recording the works executed by him in the Measurements Book and to recommend the final bill. When the de-facto complainant expressed his inability to pay the said amount, AO refused to do the official favour in recording the measurements in the M-book and to recommend for the final bill. Ultimately, AO gave first payment of Rs.20,500/- with a condition to pay the demanded bribe amount in the final bill. The de-facto complainant completed the second stage of work in May, 1999 for which AO had to recommend the final bill. Then, AO demanded Rs.4,000/- bribe for recording measurements in M- 3
AVRB,J Crl.A. No.898/2007 book. LW.1 approached the AO on 07.06.1999 with a request to complete his work. Having demanded Rs.4,000/-, he finally reduced the bribe amount to Rs.3,500/-. Though LW.1 was not having any intention to pay the bribe amount but as there was no other go, he approached LW.6 - T. Bapa Rao, Deputy Superintendent of Police, ACB, Eluru Range on 08.06.1999 and presented a report which was registered by him and a trap was laid against the AO. AO was successfully trapped in his office on 10.06.1999 at about 08:45 a.m. when he demanded and accepted the bribe amount of Rs.3,500/- from LW.1. The sodium Carbonate Solution test was conducted on the right hand fingers of AO, which proved positive. The tainted amount was recovered from the right side pant pocket of AO and the inner linings of the pant of AO were also subjected to the chemical test which gave positive result. Accordingly, post trap proceedings were recorded. The Government of Andhra Pradesh being the competent authority removed the AO, accorded sanction to prosecute the AO vide G.O.Ms.No.76, Panchayat Raj and Rural Development Department, dated 03.03.2000. Hence, the charge sheet.
4. On appearance of the AO before the Court below and after completing the necessary formalities under Section 207 Cr.P.C, 4 AVRB,J Crl.A. No.898/2007 the learned Special Judge examined him under Section 239 Cr.P.C and for which he denied the allegations as such the charges under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act were framed and explained to the AO in Telugu for which he pleaded not guilty and claimed to be tried.
5. The prosecution, during the course of trial, got examined PWs.1 to 6 and got marked Exs.P-1 to P-16 and MOs.1 to 7.
6. After closure of the evidence of the prosecution, AO was examined under Section 313 Cr.P.C, for which he denied the incriminating circumstances and filed his written statement contending in substance that he never demanded and accepted any bribe amount from PW.2. PW.2 did not execute the second stage of work till the date of trap. PW.2 never insisted him to prepare the bill prior to the trap. He informed to PW.2 that unless the work is executed, it is not possible to prepare the bill. On the date of trap at 08:45 a.m. while he was going for a tea nearby hotel, PW.2 joined him and at that time P. Sudheer of Jangareddygudem was also present with some others and at the hotel, PW.2 informed him that he could not execute the second stage work because of the financial problems and then he took out some amount and gave it to AO representing that Raghava Reddy 5 AVRB,J Crl.A. No.898/2007 sent Rs.3,500/- towards repayment of hand loan obtained him. As Raghava Reddy was due of the said amount to him, he thought that he sent the amount through PW.2 and took the same, kept it in his pant pocket. Then, PW.2 went away. It was witnessed by Sudheer and at that time ACB officials came and on enquiry by the DSP, he stated as above. He was un-necessarily made a scapegoat in this case by PW.2.
7. The AO in furtherance of his defence theory got examined DWs.1 and 2. In fact he got marked Exs.X-1 and X-2 during the cross-examination of PW.1.
8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the Accused Officer not guilty of the charges and accordingly acquitted him under Section 248(1) Cr.P.C and further gave proper findings to prosecute PW.2 for perjury as he did not support the case of the prosecution.
9. The State being aggrieved of the judgment impugned, filed the present Criminal Appeal.
10. Now, in deciding this Criminal Appeal, the point for determination is as to whether the judgment in C.C. No.20 of 6 AVRB,J Crl.A. No.898/2007 2000, dated 29.11.2005, on the file of the Court of Special Judge for SPE & ACB Cases, Vijayawada is sustainable under law and facts and whether there are any grounds to interfere with the same?
11. Smt. A. Gayathri Reddy, learned Standing Counsel for ACB- cum-Special Public Prosecutor, would contend that insofar as the pendency of the official favour before AO relating to the work of PW.2, the learned Special Judge gave an erroneous finding. He did not appreciate the evidence of PWs.1 and 2 in proper perspective. The learned Special Judge misinterpreted Exs.X-1 and X-2. PW.2 categorically testified that he completed the second phase of work in June, 1999 i.e., prior to his approaching the ACB. In spite of the fact that there is sufficient evidence to prove that official favour relating to PW.2 was pending with AO, the learned Special Judge acquitted the accused which is not tenable. PW.1 has spoken regarding the first phase of work. In fact, she had no knowledge about the second phase of work. After clearing the first phase bill, PW.2 completed the second phase of work in June, 1999. Apart from this, PW.2, for obvious reasons, did not support the case of the prosecution with regard to the demand made by AO to to pay the bribe of Rs.4,000/- and subsequent reduction of the same to 7 AVRB,J Crl.A. No.898/2007 Rs.3,500/-. The tainted amount was recovered from the pant pocket of AO and as such there arises a presumption under Section 20 of the PC Act. The AO purposefully examined DWs.1 and 2 and their evidence is not at all believable. In spite of the convincing evidence before the trial Court, the Court below erred in acquitting the accused as such the Appeal is liable to be allowed.
12. Sri A. Hariprasad Reddy, learned counsel for the respondent (AO), would contend that according to the entries in M-Book, PW.1 confirmed that AO received the amount pertaining to the second phase of work in December, 1999. So, the entries show that he could complete the rest of the work in December, 1999 only. Investigating Officer did not verify as to whether official favour was pending with AO as on the date of trap or as on the date of alleged demand by AO to PW.2 to pay the bribe. It is categorically admitted by the Investigating Officer that he did not look into the aspect of official favour by physically examining the work to be done by PW.2. In the absence of pendency of official favour, there was no question of AO demanding PW.2 to pay the bribe. Apart from this, the prosecution miserably failed to prove the demand prior to lodging of report by PW.2 and further the demand on the 8 AVRB,J Crl.A. No.898/2007 date of trap. PW.2 did not support the case of the prosecution. One Raghava Reddy informed to PW.2 that AO was demanding bribe. On the date of trap, PW.2 handed over Rs.3,500/- to AO at the tea stall stating that Raghavareddy sent that amount which was due to him as such AO bona-fidely took that amount. It is supported by the evidence of DW.2. A presumption under Section 20 of the PC Act is not available to the case of the prosecution as the prosecution did not prove that official favour was pending with AO as on the date of trap. Even otherwise, it shall stand rebutted in the absence of proving demand by the prosecution. The learned Special Judge thoroughly appreciated the evidence on record with cogent reasons as such there are no grounds to interfere with the reasoned judgment of the learned Special Judge in acquitting the AO.
13. In the light of the charges framed against the AO before the Court below and in the light of the contentions advanced and looking into the essential ingredients of Sections 7 and 13(2) R/w.13(1)(d) of PC Act, the following aspects are to be considered:
1) Whether the prosecution has proved the pendency of official favour of PW.2 before AO as on the date of trap 9 AVRB,J Crl.A. No.898/2007 and prior to the trap i.e., so called demand made by AO to PW.2 to pay bribe of Rs.3,500/-?
2) Whether the prosecution has proved before the Court below that AO demanded and accepted the bribe of Rs.3,500/- from PW.2 to do official favour?
3) Whether the prosecution has proved the charges, as above, against the AO beyond reasonable doubt?
14. PW.1 is Mandal Praja Parishad Development Officer and her evidence in substance is that during the year 1999, LW.1 was sanctioned the dug-cum-borewell for an estimation of Rs.40,000/- and further about AO recommending first part of the payment of the bill for Rs.25,000/- for the work completed by him. She further deposed that final bill for the work of the complainant for Rs.19,500/- was not placed before her as on the date of her examination.
15. Coming to the testimony of PW.2, who is no other than the de-facto complainant, his evidence in substance is that he performed part of his work for which he was paid with a sum of Rs.20,500/- and subsequently he completed the rest of the work and approached AO for payment of the balance. AO told him that he would come within two days for inspection. He met the Deputy 10 AVRB,J Crl.A. No.898/2007 Executive Engineer and informed him about his pending bill. He told him that he would put a word to AO. Later, he went around the office of AO but in vain. Then he took the assistance of Raghava Reddy and approached AO. AO promised that he would visit the site. Raghava Reddy told him that AO was demanding Rs.4,000/- for his pending bill clearance. Then, he expressed his inability. Then, Raghava Reddy advised him to report against AO to ACB officials for completion of his work at an early date. Then, he presented Ex.P-7. He further spoke about the pre trap and post trap proceedings. With regard to the post trap proceedings, his evidence in substance is that he met the AO in his office and both of them proceeded to a small hotel situated nearby office of AO and then they had the tea. Then, he gave amount to AO, who took the amount with his right hand. Thereafter, he came out and gave a pre-arranged signal.
16. PW.3 is the then Senior Assistant in the office of Deputy Director, Social Welfare Department, who acted as a mediator in the pre trap and post trap proceedings and he spoken to the facts as per the record.
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17. PW.5 is the then Inspector, ACB, Eluru who assisted the Deputy Superintendent of Police during the course of Exs.P-10 and P-13 i.e., pre trap and post trap proceedings and he examined PW.2 and prepared draft final report.
18. PW.6 is the main Investigating Officer i.e., Deputy Superintendent of Police. He received Ex.P-7 report from PW.2 against AO and laid trap against AO after registration of Ex.P-16 on 09.06.1999 and he spoken to the facts according to the record.
19. Turning to the evidence of DW.1, he is the then Assistant Engineer, Rural Water Supply, Jeelugumalli. He testified about the digging of well by PW.2 and that he recorded the measurements in Ex.X-1. On 04.12.1999 Deputy Executive Engineer checked the measurements and thereafter he prepared the bill and sent it to the office of PW.1 on 21.12.1999 for Rs.8,824/- and thereafter a cheque was issued to PW.2 for Rs.8,824/-.
20. DW.2 was examined by AO to speak about the incident happened at the tea stall and his evidence is that while he was taking tea, he observed AO and PW.2 coming there. They had a tea. Then he asked the AO about the nomination of works and at that time PW.2 gave Rs.3,500/- to AO stating that it was sent by 12 AVRB,J Crl.A. No.898/2007 one Raghava Reddy towards repayment of hand loan obtained from AO. Then AO took the amount and kept it in his pant pocket and after that PW.2 left. While he (DW.2) and AO were talking to each other ACB officials came and on enquiry, the AO stated in similar line as above.
21. Firstly, I would like to deal with the pendency of the so called official favour relating to the work of PW.2 before the AO. To decide the same, it is pertinent to look into the evidence of PW.1. As pointed out, PW.1 deposed that the final bill for the work of LW.1 was not placed before her at the time of her examination. It is to be noticed that through PW.1 in cross-examination, Ex.X-1, the M-book pertaining to the work carried out by LW.1 and Ex.X-2, the relevant entry in pass order at Page No.12 of Ex.X-1, were marked. Ex.P-4 is the bill for Rs.20,500/-. Ex.P-5 is the proceedings issued by MPDO dated 01.03.1999. Ex.P-6 is the proceedings of the District Collector, West Godavari at Eluru dated 14.01.1999. During the course of cross-examination, she admitted that the execution work consists of two stages; first stage is drilling the bore and second stage is digging the well and fixing the rigs. She admitted that after execution of the second stage work by LW.1, AO has to record the measurements and recommend the 13 AVRB,J Crl.A. No.898/2007 bill. She does not know that as on the date of trap whether the second stage of execution of the work was carried out or not. She looked into the M-book and further deposed that the second and final bill for Rs.8,824/- was given to LW.1 on 28.12.1999. The M- book is Ex.X-1 and the relevant entry at Page No.7 is Ex.X-2. The second work executed by LW.1 was check-measured by the Deputy Executive Engineer on 04.12.1999. The second bill pass order for Rs.8,824/- was made by her.
22. The learned Special Public Prosecutor examined her by way re-examination, who deposed that it is not stated by her in the pass order in Ex.X-2 that the payment was made towards the final bill. During further cross-examination, she stated that it is stated at page No.4 of Ex.X-1 as C.C-II final bill. So, in view of the evidence of PW.1, she was not in a position to say as on the date of trap and examination of her by the Investigating Officer, as to whether PW.2 completed the second part of the work or not. It is through her cross-examination, the learned defence counsel got marked Exs.X-1 and X-2, which reveals that the second part of the work was said to be completed in December, 1999. Before PW.1, the prosecution did not challenge the entries in Exs.X-1 and X-2. The entries in Exs.X-1 and X-2 were undoubtedly made after 14 AVRB,J Crl.A. No.898/2007 laying of the trap. It is to be noticed that whether PW.2 completed the second part of the work prior to the date of trap or as on the date of trap was a crucial aspect before the Investigating Officer to decide as to whether official favour was pending with AO or not. As on the date of trap, he did not look into the said crucial issue. According to the evidence of PW.2, he completed the work in June, 1999 but it is not at all substantiated in any way. A look at the evidence of PWs.1 and 2 means that the de-facto complainant could not complete the second stage of work as on the date of trap. The entries in Exs.X-1 and X-2 mean that after trap the said work was completed and in the month of December, 1999 final bill was paid to PW.2. Apart from this, PW.2, who is the de-facto complainant did not support the case of the prosecution with regard to the demand made by AO prior to the trap and on the date of trap. So, his evidence is not useful to decide the pendency of the official favour. Though, he claimed that to his remembrance he completed the work in June, 1999 but the own documents produced by the prosecution coupled with the admissions made by PW.1 negatives such a theory. It is to be noticed that PW.5 is the Inspector, who assisted the Deputy Superintendent of Police during the course of investigation. He stated in cross-examination that he has not physically verified whether PW.2 completed the 15 AVRB,J Crl.A. No.898/2007 digging of borewell as such he does not know whether PW.2 completed the work during December, 1999. Though he was a proper person to look into the issue but the evidence goes to show that no investigation was carried out by the Inspector of Police. Coming to PW.6, who is the Trap Laying Officer, he gave an answer in cross-examination that he did not verify physically whether PW.2 completed the work of digging borewell as on the date of trap. So, both PWs.5 and 6 failed to ascertain the genuinity in the report lodged by PW.2 by physically verifying as to whether PW.2 completed his part of work so as to request the AO to check the measurements and to take steps to process the final bill. The prosecution, in my considered view, standing on its own legs failed to prove before the learned Special Judge that official favour in support of the work of PW.2 was pending before the AO prior to the date of trap or as on the date of trap.
23. Leave apart the fact that prosecution failed to prove the above aspect of standing on its own legs, the AO as a part of his rebuttal examined DW.1, who was a competent person and who was Assistant Engineer, Rural Water Supply, who stated that PW.2 dug the well and fixed rigs on 03.12.1999 and he recorded the same M-book, Ex.X-1. On 04.12.1999 the Deputy Executive 16 AVRB,J Crl.A. No.898/2007 Engineer, checked the measurements made by him and thereafter he sent it to PW.1 and later cheque was issued. He denied that during the course of cross-examination by the learned Special Public Prosecutor that Ex.X-1 was prepared subsequent to the trap. It is to be noticed that Exs.X-1 and X-2 are marked through PW.1, who was the witness for the prosecution. When PW.1 supported the entries by looking into the same, no clarification was sought for as to whether those entries were genuine or not. Apart from this, DW.1 is the person who made entries under Ex.X-
1. According to him, the entries in Ex.X-1 were testified by DW.1. Though the prosecution failed to prove the pendency of the official favour as on the date of trap and prior to trap but the AO to discharge his burden examined DW.1, whose evidence is consistent with the entries in Ex.X-1. To sum up to this extent, the prosecution failed to prove the pendency of the official favour before the Court below.
24. Coming to the demand attributed against AO that on 07.06.1999 at 05:00 pm., he demanded PW.2 to pay bribe of Rs.4,000/- to record measurements in M-book and to process the final bill, PW.2 did not support the case of the prosecution in this regard. As it is already pointed out, he never testified on the 17 AVRB,J Crl.A. No.898/2007 particular day i.e., on 07.06.1999 he met the AO and AO demanded bribe of Rs.4,000/- and subsequently reduced it to Rs.3,500/-
25. The prosecution sought to prove the demand attributed against AO by relying upon the evidence of PW.2 and Ex.P-7. It is to be noticed that PW.2 testified the payment of first part of the amount and even in this regard he did not support the case of the prosecution. So, virtually he did not support his report dated 08.06.1999. So, to this extent it is clear that the prosecution failed to prove the demand on 07.06.1999 at 05:00 pm as alleged.
26. With regard to the things happened relating to the trap, the crucial evidence of PW.2, as pointed out, is that he took the assistance of Raghava Reddy as elder and approached AO and AO has spoken to visit the site and after that he was told by Raghava Reddy that AO was demanding Rs.4,000/- for clearing the pending bill and that he expressed his inability to do so and Raghava Reddy advised him to approach the ACB officials as such he lodged Ex.P-7. All these facts are not there in Ex.P-7. So, it is a case where PW.2 deviated from the contents of Ex.P-7 by not speaking about the demand dated 07.06.1999 and further the demand of AO and reduction of bribe amount to Rs.3,500/- etc. 18 AVRB,J Crl.A. No.898/2007 The learned Special Public Prosecutor got declared PW.2 as hostile and cross-examined him at length. PW.2 during the course of cross-examination denied the prosecution theory. Nothing could be elicited during the course of cross-examination so as to favour the theory of the prosecution. He stated that the contents in Ex.P-7 were scribed in the office of Deputy Superintendent of Police by one of his staff members. So virtually, as PW.2 turned hostile, there was no evidence, whatsoever, that AO demanded bribe from PW.2 either at the time of clearance of the first bill or at the time when PW.2 requested AO to enter the entries in the M- book with regard to the second part of work to process the bill etc.
27. Now, another aspect to be seen here is that the so called demand attributed to AO on 10.06.1999 at the time of trap. Even according to the second incident happened on 10.06.1999 also PW.2 did not speak that during the post trap AO demanded him to pay the bribe. His evidence is that he approached the AO and both of them gone to a tea stall where he handed over Rs.3,500/-. So, even with regard to the post trap proceedings, dated 10.06.1999, PW.2 did not speak literally that on further demand by AO, he handed over a sum of Rs.3,500/- to AO. It is to be noticed that the defence theory is that one Raghava Reddy was due of Rs.3,500/- 19
AVRB,J Crl.A. No.898/2007 to AO and at the tea stall PW.2 handed over the said amount to AO stating that Raghava Reddy sent the amount to him. There is no dispute that AO dealt with Rs.3,500/- handed over by PW.2 to him at the tea stall and there is evidence in the form of DW.2 and further PWs.5 and 6 Investigating Officers and the mediator to prove this aspect. Further, there is chemical examination test which reveals when the right hand of AO was subjected to chemical examination, it resulted into positive. Apart from this, the inner linings of the right pant of the pocket of AO also yielded positive result.
28. Now, it is a matter of test to decide as to whether basing on the fact that AO dealt with the amount handed over by PW.2, a presumption under Section 20 of the PC Act is liable to be drawn against AO that he accepted the said amount to do official favour. Section 20 of the PC Act runs as follows:
―20. Presumption where public servant accepts gratification other than legal remuneration -- (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any 20 AVRB,J Crl.A. No.898/2007 valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn‖.
29. A close perusal of Section 20 of the PC Act reveals that to get the presumption raised in favour of the case of the prosecution, the initial burden is on the prosecution to prove that AO accepted the bribe amount to do official favour. It is only when the prosecution has discharged its initial burden then the 21 AVRB,J Crl.A. No.898/2007 presumption under Section 20 of the PC Act has to be raised. Apart from this, it is a legal presumption which is rebuttable.
30. In support of the theory, AO examined DW.2, who supported the theory of the defence stating that PW.2 handed over the amount of Rs.3,500/- to AO stating that the amount was sent by Raghava Reddy which was due to him by Raghava Reddy. It is to be noticed that in this regard PW.2 denied the theory of the AO. It is a case where he did not support the case of the prosecution when it comes to theory of the defence, he denied the same. By virtue of the conduct of PW.2, absolutely, he is not a reliable witness. So, when PW.2 is not a reliable witness and further when the evidence on record goes to prove that official favour of him was not pending with AO either on 07.06.1999 or on 10.06.1999 corroboration is needed to the testimony of PW.2 relating to the events happened in the post trap. Though the prosecution employed the mediator to pre trap and post trap proceedings but the evidence on record goes to prove Investigating Officer never directed the mediator i.e., PW.3 to follow PW.2 and to observe the conversation between AO and PW.2. So, the simple presence of PW.3 in the trap does not mean that he witnessed the conversation between PW.2 and AO. There is no dispute that 22 AVRB,J Crl.A. No.898/2007 according to PW.2, he got acquaintance with one Raghava Reddy. AO set up a defence theory that Raghava Reddy was due of Rs.3,500/- to him and PW.2 handed over the same stating that Raghava Reddy sent the amount to discharge the said amount. The Investigating Officer did not examine Raghava Reddy either during the course of investigation or during the course of trial. So, AO made an attempt to discharge his burden so as to rebut the presumption, if any, under Section 20 of the PC Act. In my considered view, as the prosecution did not satisfactorily prove that PW.2 completed the second part of the work prior to the date of trap or by the date of trap as such official favour was pending with AO, the presumption, if any, in favour of the prosecution under Section 20 of the PC Act stands negatived in view of the fact that no official favour was pending with AO relating to the work of PW.2 either on 07.06.1999 or on 10.06.1999.
31. The Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)1, which is a Larger Bench decision in view of the reference made by Constitution Bench, dealt with several issues and gave certain clarifications. The Hon'ble Apex Court held that in the event the complainant turned hostile or has 1 (2022) SCC OnLine SC 1724 23 AVRB,J Crl.A. No.898/2007 died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of another witness either orally or by documentary evidence or even the prosecution can prove the case by circumstantial evidence.
32. In view of the above decision of the Hon'ble Apex Court, this Court has carefully looked into the evidence on record. DW.1 is the proper person to speak about the entries in Ex.X-1 and he categorically testified that PW.2 completed the second part of the work in December, 1999. These entries were also spoken to by PW.1, the own witness of the prosecution. So, as the prosecution miserably failed to prove the official favour, virtually, there would not have been a demand by AO to PW.2 to pay the bribe amount of Rs.4,000/- or reduction of the same to Rs.3,500/-. Investigation suffered with serious lapses as PWs.5 and 6 failed to look into by going to the place to ascertain as to whether PW.2 completed his job of work i.e., the second phase of work. Viewing from any angle, I do not find any convincing material in the form of substantial evidence to prove that AO demanded PW.2 to pay the bribe of Rs.4,000/- or further demanded him to pay the reduced amount of Rs.3,500/- as the case may be.
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33. In my considered view, the learned Special Judge for SPE and ACB Cases, Vijayawada thoroughly looked into each and every angle and recorded convincing and tenable reasons to disbelieve the case of the prosecution. He rightly looked into the conduct of PW.2 and gave appropriate findings that he is liable for perjury and accordingly directed that a complaint be made to the learned Metropolitan Magistrate or a Magistrate of First Class having jurisdiction against PW.2 for committing the offence under Section 211 IPC in giving false evidence. The impugned judgment of the learned Special Judge is tenable under law and facts as such I see no reason to interfere with a well reasoned judgment in recording an order of acquittal.
34. In the result, the Criminal Appeal is dismissed.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 02.02.2023 DSH