HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.469 OF 2008
JUDGMENT:
1. The appellant/AO is convicted for the offence under Sections 7 and Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short "the Act of 1988") and sentenced to undergo rigorous imprisonment for a period of six months and one year respectively, vide judgment in CC No.41 of 2003 dated 17.03.2008 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 prosecution is that the appellant was working as Bill Collector in the Municipal Council, Nizamabad District. The defacto complainant/P.W.1 constructed a house six months prior to the complaint. 15 days earlier to the complaint, the appellant went to the house of P.W.1 and informed that Rs.1,500/- tax would be levied after valuation. However, when P.W.1 requested, the appellant demanded Rs.1,500/- and later reduced to Rs.1,000/- and informed that the tax would be Rs.136/- if bribe is paid. 2 Accordingly, Rs.400/- was given ten days prior to the trap. Not intending to pay remaining Rs.600/-, PW1 lodged Ex.P1 complaint with the DSP. P.W.1 was asked to get bribe amount of Rs.600/- and also Rs.136/- towards tax as demanded by the appellant. The said complaint was made on 14.04.2002 and the trap was laid on the next day i.e., 15.04.2002. The trap party including complainant, independent mediators, DSP and also Inspectors gathered at 7.00 a.m on 15.04.2002 and after completing the formalities of laying trap, drafted Ex.P2 pre-trap proceedings and proceeded to the office of the appellant at 8.45 a.m. When enquired, it was found that the appellant was not present and he would be back around 4.00 p.m. All the trap party members went back to the office of ACB and again returned at 4.00 p.m. At 4.05 p.m, P.Ws.1 and 2 entered into the office of the appellant and ten minutes later, P.W.2 came out and gave prearranged signal to the trap party indicating the acceptance of bribe amount. The trap party entered and conducted sodium carbonate solution test on the hands of the appellant and the right hand fingers of the appellant turned positive. The amount of Rs.736/- was 3 recovered from the left side shirt pocket by the trap party. After completion of investigation, the Inspector laid charge sheet for the offences as stated supra.
3. Learned counsel for the appellant would submit that the prosecution has failed to prove the allegation of demand. P.W.1 has turned completely hostile to the prosecution case. He did not support the prosecution even when his Section 164 Cr.P.C statement was recorded. At the time of recording his Section 164 Cr.P.C statement on 20.05.2002, PW1 stated that the amount of Rs.736/- was towards house tax amount and also house tax of D.W.2-Ramakrishna. For the said reason, the evidence of other witnesses is of no consequence. In fact, P.W.2, independent mediator during post trap proceedings, stated that he did not receive any bribe. D.W.2/Ramakrishna is the person whose tax was to be paid, was examined and his municipal tax receipt was marked as Ex.X1. D.W.1 was the then Junior Assistant, who was present in the office on the date of trap and when examined, he stated that the appellant had persisted during trap and informed the trap party that the 4 said amount of Rs.736/- was the amount towards the tax of P.w.1 and D.W.2.
4. In support of his contentions, he relied upon the judgments in the cases of: i) C.M.Girish Babu v. State of Kerala1; ii) P.Satyanarayana Murthy v. State of A.P( F.B)2 ;
iii) B.Jaya Raj v. State of A.P3; iv)Punjabrao v. State of Maharashtra4.
5. On the other hand, learned Special Public Prosecutor submits that the evidence of P.W.2 is sufficient to infer that the appellant had demanded bribe. The bribe amount was recovered from the shirt pocket of the appellant and during the course of post-trap proceedings, he did not say anything about the house tax receipt of D.W.2 and the said version was made up after the trap of the appellant. If the said amount was received towards the tax of Ramakrishna/D.W.2, then nothing prevented the appellant form stating so during post- trap proceedings. He relied upon the judgment of Hon'ble Supreme Court in the case of Sudip Kumar Sen alias Biltu v. 1 (2009) 3 Supreme Court cases 779 2 (2015) 10 Supreme Court Cases 152 3 (2014) 13 Supreme Court Cases 55 4 (2002) 10 Supreme Court Cases 371 5 State of West Bengal5 and argued that the solitary testimony of a witness when reliable can be made basis to convict.
6. P.W.1 disowned the contents of the complaint and completely turned hostile to the prosecution case. During the course of his examination under Section 164 Cr.P.C before the Court, P.W.1 stated that Rs.600/- was for the house tax of D.W.2 and Rs.136/- was his house tax and at no point of time, the appellant demand any money, when the amount of Rs.736/- was given on the date of trap, according to P.W.1, the appellant informed that the house tax was only Rs.430/- and remaining amount of Rs.176/- has to be returned to the said Ramakrishna/D.W.2. Immediately, ACB authorities caught hold of the appellant and conducted some proceedings. He reiterated the said version during the course of chief examination in the court and also stated that the appellant never demanded any amount.
7. Though, at the earliest point of time, the accused did not come up with a specific defence and such defence not finding place in the post trap proceedings will not in any manner 5 (2016) 3 Supreme Court Cases 26 6 affect the defence of an accused if found reasonable, which defence is taken during the course of trial. The Hon'ble Supreme Court in the case of Punjabrao v. State of Maharashtra (supra), held that the statement of defence made during Section 313 Cr.P.C examination can also be considered, if it is found to be believable. In the instant case, P.W.1 has refused to acknowledge the contents of Ex.P1 and at the earliest point of time stated before the Magistrate under Section 164 Cr.P.C statement that the said amount of Rs.136/- was given towards tax and house tax of D.W.2. D.W.1, who is the Junior Assistant in the said office has stated that the appellant had in fact persisted when the ACB trap party entered the premises and specifically informed that the amount was towards two taxes i.e., P.W.1 and D.W.2. D.W.2 also entered into the witness box and produced Ex.X1 house tax receipt showing an amount of Rs.429/-.
8. The argument of the learned Public Prosecutor that recovery was made from the shirt pocket of the appellant has to be considered as proof of demand and acceptance by the appellant. There is no reason why the appellant has taken the 7 amount of Rs.736/- when the house tax Ex.X1 was not produced by P.W.1 on the date of trap.
9. The Hon'ble Supreme Court in the case of N.Vijayakumar v. State of Tamil Nadu6 and B.Jaya Raj v. State of A.P (supra) held that unless the aspect of demand is proved by the prosecution, the recovery, if any, from the accused cannot be considered as proof of such demand. In the present case, since the prosecution has failed to prove that the appellant had demanded the amount, mere recovery from the appellant will not entail the prosecution to claim that the prosecution has proved the demand and acceptance. The appellant has discharged his burden by producing evidence and that the amount was recovered from him was towards house tax of P.W.1 and D.W.2. The burden when shifts on to the accused under Section 20 of the Act, the accused can discharge his burden by preponderance of probability. The earliest version of P.W.1 during Section 164 Cr.P.C statement, the evidence of P.W.1, D.Ws.1 and 2 and Ex.X1 substantiate the claim of the appellant. Further, P.W.2, independent mediator also stated 6 (2021) 3 Supreme Court Cases 687 8 that the appellant during post-trap proceedings stated that he did not demand any amount.
10. In the said circumstances, the benefit of doubt has to be extended to the appellant. The prosecution has failed to prove that the appellant had demanded any amount. Merely, for the reason of recovery of the amount from the shirt pocket of the appellant, it cannot in any manner attribute 'demand and acceptance' of bribe by the appellant.
11. In the result, the judgment of trial Court in C.C No.41 of 2003 dated 17.03.2008 is set aside and the accused is acquitted. Since the appellant is on bail, his bail bonds stand cancelled.
12. Accordingly, Criminal Appeal is allowed.
__________________ K.SURENDER,J Date: 28.09.2022 kvs 9 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.469 of 2008 Date:28.09.2022 kvs