HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1641 OF 2007
JUDGMENT:
1. The appellant/AO is convicted for the offence under Sections 7 and Section 13(1)(d) r/w 13(2) of the Act of 1988 of the Prevention of Corruption Act, 1988 (for short "the Act of 1988") and sentenced to undergo rigorous imprisonment for a period of one year under both counts, vide judgment in CC No.36 of 2002 dated 21.11.2007 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court at Hyderabad. Aggrieved by the same, the present appeal is filed.
2. Briefly, the case of the ACB is that P.W.1 was a contractor taking up private civil works. In the said process, he had taken up the work order on 31.12.2000 from P.W.5, who is the owner of the shop. The work order included providing three phase electricity from the electricity department and costs as agreed included all the other labour works. For the reason of changing the electricity connection from Phase-1 to Phase-3, P.W.1 filed an application Ex.P2 along with other documents on 17.01.2001 and thereafter, met the appellant on 19.01.2001. The appellant directed P.W.1 to 2 be present at his site on 22.01.2001. However, the appellant did not turn up. Again when P.W.1 met the appellant on 23.01.2001, the appellant stated that he went to the said premises, however, P.W.1 was not available and demanded an amount of Rs.5,000/- as bribe for providing additional load to the said premises and apart from the said amount, P.W.1 had to pay Rs.8,000/- through Demand Draft to the department and Rs.1,000/- towards security deposit. P.W.1 again met the appellant on 25.01.2001, but the appellant insisted that the bribe amount has to be paid. Aggrieved by the said demand on 26.01.2001, P.W.1 lodged Ex.P6 complaint and the DSP on receiving complaint, arranged to trap the appellant on 27.01.2001. On 27.01.2001, the pre-trap proceedings were conducted around 7.00 a.m and thereafter, after concluding the pre-trap proceedings, all the trap party members including P.Ws.1, 2, 3, Deputy Superintendent of Police-P.W.7 and others proceeded to the office of the appellant. P.Ws.1 and 2 entered into the office of the appellant around 9.40 a.m and went inside. P.W.1 gave the amount of Rs.5,000/- on demand to the appellant, who received it and kept the amount in the table drawer. Immediately P.W.1 came out and signaled the trap party indicating acceptance of bribe by 3 the appellant. The trap party entered into the office and conducted tests on the right hands of the appellant, which turned positive. Thereafter the application which is Ex.P2 along with other documents were seized during the proceedings and also the attendance register. Post trap proceedings were concluded under Ex.P10. Later, the investigation was handed over to P.W.8, who investigated the case and filed charge sheet.
3. Learned Special Judge framed the charge for demanding and accepting the amount of Rs.5,000/- from P.W.1 for giving three phase connection against single phase connection. The prosecution examined P.Ws.1 to 8 and marked Exs.P1 to P15 and Ex.D1, a copy of lease deed was marked.
4. Learned counsel for the appellant submits that P.Ws.1, 3 and 4 did not support the case of the prosecution and they were treated as hostile to the prosecution case. P.W.5 was the owner of the said shop and P.W.5 did not lodge any complaint. Further, it was the brother of P.W.5 namely Nageshwar Rao who was looking after the affairs of the shop. He was the person who was instrumental in getting the appellant entrapped. As seen from the evidence of P.W.1, 4 Nageshwar Rao, who is the brother of P.W.5 was present at the time of complaint and also at the time of trap. Deliberately, the prosecution has suppressed regarding the presence of the said Nageshwar Rao and he was also present on the date of trap. P.W.3, who is the applicant under Ex.P2 also stated that it was Nageshwar Rao who had taken the application from P.W.3 and probably given in the appellant's office. P.W.1 is no way concerned with three phase connection and in fact, he has falsely implicated the applicant. On the day of trap, the said amount was planted in the table drawer of the appellant. For the said reason of the prosecution not proving the demand, the appellant is entitled to be acquitted. He relied on the judgment reported in the case of M.K.Harshan v State of Kerala1 and argued that in similar circumstances, the Hon'ble Supreme Court had acquitted the appellant. In the said case also, the appellant therein was asked to touch the currency notes and thereafter, the test was conducted. In the said circumstances, the Hon'ble Supreme Court believed the version of the appellant and acquitted the appellant.
1 1995 Crl.L.J 3978 5
5. On the other hand, learned Special Public Prosecutor submitted that hostility of witnesses cannot be made basis to acquit the appellant when the circumstances in such cases corroborate the demand and acceptance of bribe by the appellant. He further submits that the amount was recovered at the instance of the appellant for which reason, presumption under Section 20 of the Act has to be drawn. The appellant has failed to rebut the presumption and for the said reason, the finding of the learned Special Judge cannot be interfered with. He relied on the judgment of Hon'ble Supreme Court in the case of Vinod Kumar v State of Punjab2 and argued that though witness is treated hostile, the evidence of such witness is not completely effaced and there is no bar to base conviction on the basis of evidence of such hostile witness, which corroborates the case of the prosecution.
6. Having perused the record, the following factors are unexplained by the prosecution; i) The owner of the shop is P.W.5 and his brother namely Nagehswar Rao was the person who was looking after the affairs of the shop, but the said Nageshwar Rao is 2 (2015) 3 Supreme Court Cases 220 6 not examined; ii) A statement was made by P.W.3 and according to him, he handed over the application Ex.P2 to the said Nageshwar Rao and the said application was made in the office on 15.01.2001 and there are entries on Ex.P2 dated 16.01.2001 and 17.01.2001. However P.W.1 says that the application was filed in the office on 17.01.2001, which apparently is wrong; iii) Ex.P1 is a photocopy of the work order and the original is not produced. As seen from Ex.P1, the stamp was purchased on 2.11.1998, however, the document work order is of 31.12.2000. The prosecution has failed to prove why the work order as mentioned in Ex.P1 was given in favour of P.W.1; iv) According to P.W.3, the appellant and Sub- Engineer, Surender Kumar went to the shop on 23.01.2001 and after inspection informed that the said premises was having wiring of single phase from the panel board to the meter and also internally it has to be changed to suit the thee phase electricity service connection so that they can prepare the estimate and submit the same to A.D office for sanction. Further, P.W.3 stated that the appellant and the said Sub-Engineer urged him to inform about the changing of wire in the shop. P.W.4 is the Assistant Engineer, who inspected the shop along with the appellant on 7 23.01.2001. Admittedly, P.W.1 was not the applicant for changing of meter in the electricity office. PW.4 also stated that Nageshwar Rao, who is the brother of P.W.5 was also present in the office room on the date of trap.
7. P.W.2 is the independent mediator who accompanied P.W.1 to the office on the date of trap. However, P.W.1 alone entered into the office of the appellant and P.W.2 stood at the entrance door of room of the appellant. P.W.2 during his examination stated that he stood near the entrance of the room and P.W.1 took the amount from his shirt pocket and paid it to the appellant, who received it and kept the same in his table drawer. P.W.2 stated that the DSP even prior to conducting tests on the hands of the appellant had asked the appellant to show the amount. P.W.2 stated twice during chief examination that the DSP conducted test on the hands of the appellant, after the amount was shown to be in table drawer. Admittedly, the shop was not having wiring for fixing up of 3 phase meter. Unless such wiring was changed, the question of giving three phase meter permission and installing such meter does not arise. P.W.3 is the applicant for change of meter. PW.5 and his brother 8 one Nagehswar Rao are the persons who are owners of the said shop. Neither P.W.5 nor his brother have lodged any complaint against the alleged demand of bribe. Engaging the services of P.W.1 under Ex.P1 also becomes doubtful. Without there being any mention of specific costs that would be involved for the interiors, electricity charges everything is given covered within 60,000/- as stated in EXP1, which is highly improbable and that too on a stamp paper which was two years old. It is highly improbable that the applicant PW2, owner of shop PW5 and his brother Nageswar Rao who was looking after the affairs of the shop were not informed about the bribe. Further PW1 got the appellant by paying 8,000/- out of his pocket, which cannot be believed in the present facts of the case.
8. Money was also recovered from the table drawer. Ex.D1 is the registered lease deed, which was given to P.W.5 on 16.08.1995. In the registered lease deed, there is a clause- 'no structural alterations in the premises including alterations or additional shall be made without the previous consent of the lessor". There is no evidence that is produced by the prosecution to show that the lessor has given 9 any consent for the alterations mentioned under Ex.P1. Cumulatively, it is doubtful whether P.W.1 was granted such contract work under Ex.P1. Neither the lessor nor the lessee P.W.5 nor the brother of PW.5 Nagehswar Rao, have approached the electricity department for electric meter. The wiring necessary for three phase meter was not done. P.W.4 and the appellant had inspected the premises and instructed P.W.3 to undertake the wiring changes. However, P.W.3 did not intimate either the appellant or P.W.4 that the wiring has been changed.
9. As discussed above, the demand that was made by the appellant becomes doubtful , more so, for the reason of the recovery of the amount from the table drawer. PW.2, who is the accompanying mediator has stated that the DSP had asked the amount and it was taken out from the drawer by the appellant, as admitted by P.W.2 in his cross-examination. The Hon'ble Supreme Court in M.K.Harshan v State of Kerala (supra) found that the accused touching the currency notes and thereafter DSP asking accused to dip his fingers in the solution creates suspicion regarding the version of the notes being put in the drawer. Similar 10 are the facts in the present case. For the aforesaid reasons, the benefit of doubt is extended to the appellant.
10. In the result, the judgment of trial Court in CC No.36 of 2002 dated 21.11.2007 is set aside and the accused is acquitted. Since the appellant is on bail, his bail bonds stand cancelled.
14. Accordingly, Criminal Appeal is allowed.
__________________ K.SURENDER, J Date:20.09.2022 kvs 11 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1641 of 2007 Date: 20.09.2022.
kvs