Andhra Pradesh High Court - Amravati

E.K. Annamalai, vs The State Of A.P., Rep By Spl Pp., on 21 January, 2021

Bench: C.Praveen Kumar

      THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR


              Criminal Appeal No. 1354 of 2008


JUDGMENT:

1) The present Appeal is filed against the conviction and

sentence imposed in C.C. No. 22 of 2004 on the file of the

Special Judge for CBI Cases, Hyderabad, on 07.11.2008,

wherein, the Appellant who was tried for the offences punishable

under Sections 7, 13(2) read with Section 13(1)(d) of Prevention

of Corruption Act, 1988, was convicted and sentenced to suffer

Simple Imprisonment for a period of four years and to pay a fine

of Rs.1,000/-, in default, to suffer Simple Imprisonment for

three months each under both the counts. The sentence of

imprisonment imposed under both the counts were directed to

run concurrently.

2) The substance of the Charges against Accused Officer is

that, on 09.06.2003 at 1.40 p.m., the Accused Officer in

pursuance to his earlier demand is said to have accepted

Rs.1,000/- towards illegal gratification as a motive for releasing

Earnest Money Deposit and Security Deposit.

3) The facts, as culled out from the evidence of the

prosecution witnesses, are as under:

i. PW1 who was a contractor in civil works took contract

work for maintenance of buildings of BSNL, Chittoor, Kadapa

and Nellore Districts, in pursuant to the tender called for by the

Executive Engineer Telecom, for maintenance of buildings of

BSNL. At the time of submitting tender, the Contractor has to

deposit 2 ½% of the bid amount as Earnest Money Deposit and

after executing some work, bills would be presented. When

running bills are presented, 7 ½% will be deducted towards

security deposit.

ii. It is said that for the works completed during the years

2000-2001 and 2001-2002, PW1 made an application for return

of EMD/Security Deposit. About six to seven applications were

said to have been made for return of the EMD/Security deposit.

Ex.P1 to Ex.P12 are the applications, which were sent to

Divisional Office, BSNL at Tirupati.

iii. On 05.06.2003, PW1 claims to have met the Accused

Officer, by name, E.K. Annamalai, in the Divisional Office, BSNL

at Tirupati, wherein, he demanded a sum of Rs.5,000/- for

clearing the bills. When PW1 expressed his inability to pay the

said amount, the Accused Officer demanded to pay Rs.1,000/-

on or before 9th June. As PW1 was not inclined to pay the bribe

amount, he telephoned to CBI, who gave him the telephone

number of Superintendent of Police, CBI, who was in Chennai.

When contacted, the Superintendent of Police informed him to

contact the Inspector, who was in the Railway Retiring Room at

Tirupati. Accordingly, on 09.06.2003, PW1 approached the

Inspector CBI and gave a complaint in writing. Ex.P13 is the

complaint. It is to be noted here that the said complaint was

given at 11.30 a.m., on 09.06.2003.

iv. PW15 received the complaint from PW1, contacted the CBI

Officials over phone and after obtaining necessary orders,

registered a case in Crime No.21-A/2003-H and proceeded

further with the investigation. Having regard to the nature of

allegations made, he decided to lay a trap and utilized two

witnesses, who were summoned for other purposes. PW15

organized a meeting of PW3 [mediator], PW14 [another mediator]

and PW1 along with other CBI Officials. The complaint was

shown to PW3 and PW14, who have signed on the same as token

of seeing it. The importance of sodium carbonate solution and

the phenolphthalein test was explained to PW1 and the

mediators. PW1 was asked to produce the bribe amount of

Rs.1,000/-, which he did. The currency notes were smeared with

phenolphthalein powder and then kept in the left side shirt

pocket of PW1. PW3 was asked to accompany PW1 and give a

signal by wiping his face with handkerchief as soon as the

Accused Officer receives the bribe amount. Ex.P18 is the 1st

mediators report. The evidence of PW15 discloses that

proceedings under Ex.P18 begun at 12.00 noon and concluded

at 1.15 p.m., on 9.06.2003. Thereafter, the trap party left to the

office of the Accused Officer, which was at a walking distance

from the Railway Station. They reached the office of the Accused

Officer at 1.30 p.m.

v. After reaching the Office of the Accused Officer, PW1 and

another person [not PW3, though he was asked to accompany

PW1] went into the Divisional Office at Tirupati and met the

Accused Officer. When inquired about the applications i.e.,

Ex.P1 to Ex.P12, the Accused Officer replied that he has already

enquired ['adiginanu]. Then PW1 removed up the currency notes

from his left side shirt pocket with his right hand and gave it to

the Accused Officer, who took it with his right hand and kept it

in his left side shirt pocket. PW1 came out from the Chambers of

the Accused Officer along with a person who accompanied him

and gave a signal by waiving his hand.

vi. The evidence of PW3, another mediator, is to the effect

that, he along with PW1 went to BSNL Executive Engineer's

Office, situated at Tiruchunur Road, Tirupati and he was

thinking as to whether he should enter the room of the Accused

Officer or not, he heard conversation of persons. Immediately,

thereafter, PW1 himself came out and gave a signal stating that

Accused Officer accepted the bribe. PW3 relayed the pre-

arranged signal by wiping his face with handkerchief. On

receiving the signal, the trap party entered the room of the

Accused Officer. It is said that, PW1 again entered into the room

followed by PW3. After identifying the Accused Officer, who was

closing his office room at that time, PW15 asked the Accused

Officer, about the money received by him from PW1. He caught

hold of both the hands of the Accused Officer and the left hand

of the Accused Officer when dipped in the sodium carbonate

solution did not turn pink in colour. However, when the right

hand is dipped, the solution turned in pink colour. M.O.2 is the

resultant solution of the right hand wash of the Accused Officer.

Similarly, the left side shirt pocket was also subjected to test,

which proved positive. M.O.3 is the resultant solution. The

explanation offered by the Accused Officer was recorded in the

2nd mediator's report, which is placed on record as Ex.P15. It is

to be further noted here that M.O.1 is the bunch of currency

notes, which are recovered from the Accused Officer and the

numbers therein tallied with the numbers mentioned in the pre-

trap proceedings. The Accused Officer was arrested after

observing all the formalities.

vii. A rough sketch of the scene was also prepared, which is

marked as Ex.P19. Thereafter, the house of the Accused Officer

was searched from 6.00 p.m. to 6.30 p.m., but no incriminating

material was recovered. The Accused Officer was produced

before the concerned court on 10.06.2003 and remanded to

judicial custody. Further investigation in this case was taken up

by PW17- Inspector of Police, who after examining all the

witnesses and after obtaining necessary sanction from PW16

filed the charge-sheet on 30.10.2003, which was taken on file as

C.C. No. 22 of 2004 on the file of the Special Judge for CBI

Cases, Hyderabad.

4) On appearance of the Accused Officer, copies of the

documents, as required under Section 207 Cr.P.C., were

furnished and later on charges as referred to above came to be

framed, read over and explained to the Accused Officer, to which

he pleaded not guilty and claim to be tried. In support of its

case, the prosecution examined PW1 to PW17 and got marked

Ex.P1 to Ex.P29 beside M.O.1 to M.O.3. After completing the

prosecution evidence, the Accused Officer was examined under

Section 313 Cr.P.C. with reference to the incriminating

circumstances appearing against him in the evidence of

prosecution witnesses, to which he denied. The Accused Officer

examined DW1 and got marked Ex.D1 to Ex.D10 in support of

his plea.

5) Believing the evidence of prosecution witnesses and on a

premise that Ex.P1 to Ex.P12 bills though with the Accused

Officer were not processed, and that the Accused Officer might

have demanded illegal gratification for processing and passing

the bills, the Trial Court convicted the Accused Officer.

Challenging the same, the present appeal came to be filed.

6) Sri. O. Kailashnath Reddy, learned counsel for the

Appellant mainly submits that, there is absolutely no material

on record to show that there was official favour pending with the

Accused Officer and that any demand was made for doing an

official favour. He pleads that, there is enough material on

record to show that there was no demand on 05.06.2003 and

that the money was thrusted forcibly into the pocket of the

Accused Officer on 09.06.2003, which is evident from the

evidence of PW3. He further pleads that, there was absolutely no

preliminary enquiry to find out the antecedents of the Accused

Officer and also the relationship between PW1 and the Accused

Officer. According to him, the trap party met in the Retiring

Room of the Railway Station to trap the Executive Engineer, and

PW13 and PW14 who were present there to act as mediators for

laying the said trap, were used as mediators for laying the trap

against the Accused Officer, by setting up PW1, who in-fact had

a grievance against the Executive Engineer. He would further

submit that, on 05.06.2003, the Accused Officer was not present

in the Office so as to make a demand and for that reason, PW1

in his complaint never mentioned the time as to when he met

the Accused Officer on that day. The learned counsel took us

through the evidence of PW5 in support of the said plea. Having

regard to the manner to which the signals were given after the

alleged acceptance of money by the Accused Officer, and as PW3

never accompanied PW1 to witness the acceptance, which he

was asked to do so, and the statement of PW1 that he was never

asked about his version, after the trap by the Investigation

Officer, the Counsel would contend that there is a cloud of

suspicion over the events, which took place on 09.06.2003.

7) On the other hand, Sri. Chenna Kesavulu, learned Counsel

representing CBI would contend that, there is enough evidence

on record to show, more particularly, Ex.P29 that the Accused

Officer was present in the office on 05.06.2003. He further

pleads that the argument of the learned Counsel for the

Appellant that there was no favour pending with the Accused

Officer as on 09.06.2003, is incorrect, for the reason that Ex.P9

to Ex.P12 were still pending with the Accused Officer. According

to him, bills were pending in the Office of the Accused Officer

since nine [09] months and as such, there is every justification

to believe that the Accused Officer has demanded the bribe

amount to process the papers. Insofar as the plea of thrusting is

concerned, he would submit that, if really there was thrusting,

both the hands should have turned positive, which is not so in

the instant case. Apart from that, he would contend that, if

really it is a case of thrusting, the conduct of the Accused Officer

would have been different. Insofar as preliminary enquiry to be

conducted, he would submit that, in cases of this nature, it may

not be necessary and even if the same is not done, no prejudice

is caused to the Accused Officer, as the material on record show

that he was caught red handed after accepting the money. In

view of the above, he would contend that, the prosecution has

proved its case beyond reasonable doubt.

8) The point that arises for consideration is, whether the prosecution was able to bring home the guilt of A.O. beyond reasonable doubt for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988?

9) The Accused Officer was working as Accounts Officer in

the Office of the Executive Engineer, Civil Division, BSNL,

Tirupati, at the time of trap. The fact that, he is a Public Servant

is not in dispute.

10) The question now is, 1] whether there was any enquiry

before registration of a crime; 2] whether there was any favour

pending with the Accused Officer; 3] whether there was any

demand of bribe; and 4] whether any amount was accepted as

illegal gratification other than legal remuneration?

11) As seen from the evidence available on record, PW1 who

was doing contract work since last 15 years, obtained contract

work for maintenance of the buildings in BSNL Office in

Chittoor, Kadapa and Nellore Districts, pursuant to a tender

process. PW1 being the lowest tenderer, entered into an

agreement with the BSNL for executing the work. After executing

some work, applications came to be presented seeking refund of

2½% as EMD and 7½% as security deposit. Ex.P1 to Ex.P12 are

the said applications.

12) It is in the evidence of PW1 that, on 05.06.2003, he met

the Accused Officer, who initially demanded a sum of Rs.5,000/-

for clearing the bills, which was later reduced to Rs.1,000/- and

the same was accepted on 09.06.2003. The evidence also

discloses that as PW1 was not willing to pay the bribe amount,

he lodged a complaint [Ex.P13] on 09.06.2003. The evidence on

record further shows that this report was lodged at 11.30 a.m.,

on 09.06.2003.

13) On receipt of the report at a Railway Retiring Room in

Tirupati Railway Station, PW15- Inspector of Police organized a

meeting with the mediators i.e., PW3, PW14 along with other

CBI Officials, for laying a trap against the Accused Officer and

accordingly, demonstrated the importance of phenolphthalein

test to PW1 and others. It is to be noted here that, these

proceedings started at 12.00 noon on 09.06.2003 and completed

by 1.15 p.m., on the same day and thereafter, trap was laid

between 1.30 and 1.40 p.m. At this stage, it is to be noted that

PW1 in his evidence states that, he provided Rs.1,000/- or

Rs.500/- notes under the instructions of CBI Inspector, to which

some powder was applied and numbers of the currency notes

were noted. It would be useful to extract the same, which is as

under:

"The assistant of the inspector demonstrated applying of some powder when the powder is dropped in the water, it turned into rose colour. I provided Rs.1,000/- or Rs.500/- under the instructions of CBI inspector, some powder was applied and numbers of the above currency notes are noted."

14) Further, the mediator -PW3 in his evidence states as

under:

"PW1 stated that Rs.5,000/- was demanded, but he brought only one thousand (when Ex.P18 shown to the witness, he identified his signature and handwriting). The numbers of tainted notes were noted in Ex.P18 before

putting the amount in the shirt pocket of PW1. I went into railway retiring room at about 12.00 noon or 12.15 p.m., and Ex.P18 proceedings were completed by 1.15 p.m."

15) PW15- the investigation officer in his evidence states as

under:

"I was camping in Tirupati on 09.06.2003; I received the complaint from PW1 who said that he had contacted the SP, CBI, Hyderabad, over phone regarding the complaint. Basing on the information given by SP, CBI that, I was camping at railway retiring room at Tirupati, PW1 came to me and lodged a complaint i.e., Ex.P13. As the complaint revealed prima facie commission of offence U/s. 7 of P.C. Act, I have contacted the CBI officer over phone and obtained necessary orders and took the FIR number as 21(A)/2003-H and proceeded further investigation. I have decided to lay a trap on the accused officer, Sri E.K. Annamalai (accused is sitting in the dock, witness identified him). I have utilized two witnesses who were summoned for other purpose, to lay a trap in this case.

I have organized a meeting of Sri D.S.P. Rao (PW3), Sri Dwarakanath Reddy (PW14), Sri Seshaiah (PW1) and other CBI officials. The purpose of the meeting was explained to all regarding laying a trap on the accused. The complaint was shown to PWs. 3 and 14, who have signed same in token of having seen it. Sodium carbonate and phenolphthalein test was demonstrated. PW1 was asked to produce the bribe amount of Rs.1,000/- which he did. The notes were smeared with phenolphthalein powder and kept in the left side shirt pocket of PW1 by PW14. Sri D.S.P. Rao was named as accompanying witness and he was directed to give a signal by wiping his face with handkerchief as soon as the accused officer accepts the bribe amount. All the proceedings were drawn in form of first mediator's report which is Ex.P18 which began at 12.00 hours and concluded at 13.15 hours on 09.06.2003. After that, the trap team left for office of the accused which is walk-able distance from the railway station. The team reached there by 13.30 hours.

16) Further, PW17 - the investigation officer who filed the

charge-sheet, in his evidence states as under:

"The FIR in RC.20(A)/2003 was registered on 10.06.2003 and it is true that the FIR in RC.21(A)/2003 was also registered on 10.06.2003. It is true in both the above crimes the complaints were received on 09.06.2003 at 11.15 a.m. and 11.30 a.m., receptively. As per 1st mediator's report in Crime No. 20(A)/2003 on 09.06.2003 at 11.45 hours the proceedings were drawn in room no. 6 of Railway retiring room, Tirupathi and concluded at 12.45 hours on the same day. Similarly in RC.21(A)/2003 i.e., in this case on 09.06.2003 the 1st Mediators report, Ex.P18 commenced at 12.00 hours and concluded at 13.15 hours and such proceedings were drafted at room no. 6, Railway Retiring room, Tirupathi (The witness answered above after perusing the certified copies of FIR and 1st mediators report in RC.20(A)/2003 and the proceedings in this case."

17) From the evidence of these witnesses, it stands established

beyond reasonable doubt that, a report about the demand was

made on 09.06.2003 at 11.30 a.m., which led to registration of a

case in Crime No. 21(A)/2003 and the mediators were secured

between 12.00 noon to 1.15 p.m. by utilizing the services of two

persons i.e., PW3 and PW14, who have assembled in the Railway

Retiring Room for some other purpose. Neither the evidence of

PW3 nor the evidence of PW15 and PW17 show that the police

have made any effort to know the antecedents of the Accused

Officer and also the relationship between PW1 and the Accused

Officer. Such being the position, whether the Inspector CBI was

justified in registering a crime and laying a trap without knowing

the conduct, character and antecedents of Accused Officer and

PW1.

18) In V. Gopal Reddy, Secunderabad v. State of

Telangana1 the combined High Court at Hyderabad, held as

under:

"13. It is necessary to keep in mind the precautions to be taken from the guidelines to be followed in case of a public servant before registration of crime as per the expressions of the Apex Court. In P. Sirajuddin Etc. v. State of Madras Etc.2, the Apex Court held that before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in the case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any pre-conceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable."

19) In Lalitha Kumari v. Govt. of U.P. & Others3, the Apex

Court categorically held that, in cases arising under the

Prevention of Corruption Act, there has to be preliminary

Crl. A. No. 900 of 2014 dated 08.04.2019

1971 AIR 520

(2014) 2 SCC 1

enquiry before taking any further steps. The Apex Court while

issuing directions held as under:-

"In view of the aforesaid discussion, we hold:

i) xxxxx

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) x x x x x

iv) x x x x x

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

20) From the ratio laid down by the Apex Court, in the

judgment referred to above and having regard to the fact that

there was no preliminary inquiry at all before registering the

crime and laying the trap, I am of the view that the procedure

adopted by the CBI Authorities in laying the trap is not in

accordance with law and that they acted in due haste for

reasons best known to them.

21) Coming to the issue, as to whether there was any official

favour pending with the Accused Officer, it would be useful to

refer to the evidence of PW2, PW4 and PW5. The evidence of

these witnesses not only establishes the procedure that is

followed in the Office for clearing the bills, but, also shows the

status of the bills raised by PW1.

i) PW2 who is working as Executive Engineer (Planning)

in the Office of Chief Engineer (Civil) from 2002 onwards

deposed about the procedure being followed for withdrawing the

Earnest Money Deposit/Security Deposit. According to him, the

EMD will be collected at the time of submitting tenders, as per

the conditions in tender notice and shall be released after the

finalization of tender and refunded to the unsuccessful

tenderers. In respect of contractors, whose tenders are accepted,

the Earnest Money Deposit shall be treated as part of Security

Deposit. After the acceptance, the tenderer has to deposit 10% of

the contract value or the amount as specified and part of EMD is

treated as Security Deposit, apart from deducting balance

amount of security deposit from the running bills payable to the

contractor. The EMD and security amount deducted from the

bills can be claimed by the contractor for refund after successful

completion of the work and after the maintenance period as per

the conditions of contract.

ii) His evidence also shows that the contractor after

completion of the work shall claim refund in prescribed form

through Assistant Engineer, in-charge of the work. The

Assistant Engineer after verifying and certifying shall forward

the same to the Executive Engineer's Office, where it shall be

scrutinized and verified with reference to the cash book and

other deposits records by the Accounts Branch and then placed

before the Executive Engineer for necessary orders. After the bill

is passed, the Accounts Officer shall put up the pay order, after

checking and issue cheque to the contractor, which shall be

counter signed by another Officer.

iii) His evidence also shows that, insofar as Ex.P1 to

Ex.P4 are concerned, they were submitted by the contractor to

the Assistant Engineer, who forwarded them to Executive

Engineer and they were recommended to Accounts Officer on

04.06.2003, and passed by Executive Engineer on 06.06.2003.

The Pay Orders were prepared and issued on 09.06.2003 for the

amounts mentioned therein.

iv) Insofar as Ex.P9 to Ex.P11 is concerned, it is said

that, they were submitted by the contractor before Assistant

Executive Engineer, who forwarded them to Executive Engineer,

but, those are not further scrutinized in the Division Office.

22) From the evidence-in-chief of this witness, it is clear that,

even prior to 05.06.2003 i.e., date of alleged demand, assuming

that there was a demand on 05.06.2003 and even prior to the

date of trap, the entire process was over and on 09.06.2003

itself, it was sent for counter signature of PW8, which I will refer

a little later.

23) As stated earlier, the finding of the Trial Judge is to the

effect that, the amount must have been demanded for

processing Ex.P9 to Ex.P11. At this stage, it would be useful to

refer to the cross-examination of PW2, who categorically admits

that, "there was no endorsement on Ex.P9 to Ex.P11 to the effect

that those were received in the Office of the Executive Engineer".

It would be useful to extract the same, which is as under:

"There is no endorsement on Exs.P9 to P11 that those are received in the office of the executive engineer."

24) It was further elicited in the cross-examination of PW2

that, after the bills were passed by Executive Engineer, auditors

will prepare the pay order. According to him, payments under

Ex.P1 to Ex.P3 and Ex.P4 to Ex.P8 were made through two

cheques bearing Nos. 628837 and 628835 in favour of PW1. The

relevant portion in the evidence of PW2, is as under:

"In the office of the accounts officer there will be auditor, his role is scrutinize the bill with reference to the records. The auditors will write passed order after approval of the accounts officer. After the bills were passed by the EE, auditor shall write the payment order on the bills. Payments under Exs.P1 to PW3 were made by way of cheque

no.628837 and Exs.P4 to P8 were made through cheque no. 628835. After payment on the bills under Exs.P1 to P8, they will be treated as vouchers for cheques issued.

Ex.P16 is cheque bearing no. 628837, dated 09.06.2003 for Rs.16,892/- in favour of Sri. D. Seshaiah, Tirupati.

Ex.P17 is cheque bearing no. 628835, dated 09.06.2003 for Rs.28,998/- in favour of Sri. D. Seshaiah, Tirupati (when Exs.P16 and P17 shown to the witness, he admitted them)."

25) This part of the evidence of PW2, which remained

unimpeached goes to show that, payments under Ex.P1 to Ex.P8

were cleared and approved and cheques vide Ex.P16 and Ex.P17

were prepared on 09.06.2003 and sent for second signature

much prior to the date of trap and that Ex.P9 to Ex.P11 were not

received in the Office of Executive Engineer by then.

26) PW4 was working as an Auditor in BSNL at Tirupati. His

duties are as under:

"My duties as auditor in respect of EMD/SD are: after receiving EMD/SD refund bills, I will process and put up the file before the accounts officer. I will prepare a pass order and place before the accounts officer. I will put my initial at the place of pass order."

27) According to him, the Accused Officer will verify the pass

order with the concerned register and place it before the

Executive Engineer for sanction. His evidence shows that Ex.P4

to Ex.P8 contains orders passed by him and also by the

Executive Engineer and that the cheque numbers were also

mentioned on the said orders. His evidence is also to the effect

that, seventh bill of PW1 was never placed before the Accused

Officer and it was processed by him on 04.07.2003 i.e., long

after the trap. The relevant portion in his evidence is as under:

"The accused officer will verify the pass order with the concerned register and place before the Executive Engineer for sanction. Exs.P4 to P8 contains pass orders passed by me (when Exs.P4 to P8 shown to the witnesses, he identified his pass orders). The above bills are passed by Executive Engineer and even cheque number also mentioned to show that cheque was issued to the contractor. Ex.P17 is the same cheque under which the amount was paid to the contractor i.e., PW1.

The seventh Final bill of PW1 was passed on 31.7.2003 processed by me on 04.07.2003.

It is true the seventh final bill of PW1 never placed before the accused officer. I processed the seventh final bill of PW1 on 07.07.2003 much after placing the accused officer on suspension. The trap of the accused officer took place on 09.06.2003. Ex.P17 was prepared prior to the trap incident."

28) In the cross-examination of PW3, it was further elicited as

under:

"Exs. P4B to P8B are dated 04.06.2003. The role of the accused officer ended on Ex.P4B to P8B by 04.06.2008. The cheque has to be signed by two account officers. One accounts officer i.e., the accused was in our office and another accounts officer was in GMTD, BSNL at Tirupati. The GMTD office situated at about two kilometres away from our office. Ex.P17 cheque also contains the signature of accounts officer of GMTD in addition to the signature of the accused. After accused officer signing on the cheque, it will be sent to the accounts officer, GMTD along with files, then he will verify and sign."

29) From the evidence of PW4, it also goes to show that, he

being an Auditor, processed and put up the file before the

Accused Officer, who also processed it and sent the same to the

Executive Engineer, who approved it by mentioning the cheque

numbers [Ex.P17/Ex.P4 to Ex.P8] and that the role of the

Accused Officer ended by 04.06.2003 i.e., even prior to the

alleged date of demand.

30) Similarly, PW5 - Senior Section Supervisor at BSNL,

Tirupati, deposed that, he processed Ex.P1 to Ex.P3 bills

pertaining to PW1 and Ex.P16 is the cheque. According to him,

the fifth [5th] final bill of PW1 was processed on 20.06.2003 and

Executive Engineer passed the bill on 09.07.2003, much after

the trap. He further says that, second [2nd] final bill of PW1 was

received by Accused Officer on 18.03.2003; there were queries

from Executive Engineer, to which reply was received and placed

before the Executive Engineer on 04.06.2003, which was

approved by Executive Engineer on 09.07.2003 i.e., much after

the trap. Therefore, insofar as second [2nd] final bill is concerned,

it cannot be said that Accused Officer has any role for delaying

the same. His evidence also shows that, Ex.P9, Ex.P10 and

Ex.P11 were not received in their Office. The relevant portion in

the evidence of PW5 is as under:

"The fifth final bill of PW1 was processed by me on 20.06.2003. The EE passed the fifth final bill of PW1 on 09.07.2003.

The second final bill of PW1 was received by the accused officer on 18.03.2003 and passed to me. I processed it. There were queries from EE and reply was received and placed before the EE on 04.06.2003. The EE passed the second final bill of PW12 on 09.07.2003.

Ex.P9, Ex.P10, Ex.P11 and Ex.P12 are not received in our office."

31) In the cross-examination of PW5, it has been elicited that,

on 09.06.2003, the Accused Officer signed on Ex.P16 [cheque]

prior to trap and after signing on Ex.P16, it was taken to GMTD

Office, Tirupati along with the bills for obtaining counter

signature of the Accounts Officer. PW7 who was working as

cashier in the said Office, took these cheques at 12.30 p.m., for

second signature of PW8, whose Office is at a distance of two

[02] kilometre from the Office of the Accused Officer. His

evidence also shows that the duty of the Accused Officer starts

from the time PW5 processes and submits the bills to him. The

Accused Officer after receipt of the bill shall recommend passing

of the bill to the Executive Engineer, who after finalisation

passes the bill.

32) At this stage, it would be useful to refer to the evidence of

PW7 and PW8, which is as under:

33) PW7 is a Cashier working under the Accused Officer, who

in her evidence deposed that, on 09.06.2003, the Accused

Officer himself filled up cheques Ex.P16 and Ex.P17, as her

hand writing was not good and thereafter, she [PW7] took them

for counter signature of PW8. After getting them counter-signed,

she returned back to the Office and found CBI Officials in the

Chambers of the Accused Officer. Her evidence is to the effect

that, at 4.30 p.m., she handed over Ex.P16 and Ex.P17 to CBI

Officer. The evidence of PW8 is only to the effect that she

counter-signed Ex.P16 and Ex.P17 on 09.06.2003 between

1.00p.m. and 1.15 p.m.

34) From the evidence of these four witnesses, it is very much

clear that, there was no official favour pending with the Accused

Officer either on the alleged date of demand or on the date of

trap. If really his intention was to withhold passing of the bills,

he would not have prepared the cheques and put up the bills

before the Executive Engineer or sent them for counter signature

to PW8. Once they are counter signed, there is no mechanism to

prevent issuance of the same.

35) On the other hand, the evidence of PW5 itself would

indicate that, there was some suspicion against the Executive

Engineer for not processing the papers put up by the Accused

Officer, for which, a trap was arranged on that day. The persons

summoned to act as mediators for laying the trap against the

Executive Engineer were utilised for this case also, which is

evident from the evidence of PW3, as stated earlier.

36) Further, in the cross-examination of PW5, it has been

elicited that, on 05.06.2003, PW1 approached PW3 and enquired

about his bill and also about Executive Engineer, as to whether

he is available in the Office. If really, the delay was on the part of

the Accused Officer and if he was responsible for not processing

the bills, definitely, PW1 would not have enquired about the

Executive Engineer, which is not the case of PW1. Further, the

evidence on record, which I have referred to earlier amply

establishes that on 06.06.2003 itself the Executive Engineer has

processed the files mentioning the cheque numbers and later

the cheques were prepared even prior to the trap on 09.06.2003

along with the counter signature of PW8. Having regard to the

above, it cannot be said that, there was any favour with the

Accused Officer during the relevant period of time. If really the

Accused Officer has demanded the money, he would not have

processed the same. The finding that the Accused Officer might

have demanded the money for processing Ex.P9 to Ex.P11,

cannot be accepted, for the reason that they never reached the

Office of the Executive Engineer, where the Accused Officer

works.

37) The argument of the learned CBI Counsel that anticipating

the arrival of applications, the Accused Officer might have

demanded the money, cannot be countenanced. If really, the

Accused Officer wanted to make money illegally, he would have

delayed processing of Ex.P1 to Ex.P8 itself. Therefore, the

finding of the Trial Court that there was an official favour

pending with the Accused Officer, in my view, is not correct.

38) Coming to the demand made by the Accused Officer on

05.06.2003, the Counsel for the CBI mainly relied upon Ex.P29

to show that the Accused Officer was present in the Office on

05.06.2003. Relying upon the signature of the Accused Officer in

the attendance register, it is urged that, the Accused Officer

must have been present in the Office on that day, and that a

demand was made on that day for payment of the bribe amount.

The same is strongly opposed by the learned Counsel for the

Appellant stating that, if really there was a demand on

05.06.2003, and if really the Accused Officer was present in the

Office on that day, definitely, PW1 would have mentioned the

time as to when he went to the Office and when such demand

was made. According to him, the evidence of PW5 disproves the

same.

39) PW1 in his evidence only says that, he met the Accused

Officer on 05.06.2003, wherein, he demanded Rs.5,000/- for

clearing the bills and when he expressed his inability to pay the

amount, the same was reduced to Rs.1,000/- to be paid on or

before 09.06.2003. From the evidence of PW1, it is clear that, he

did not mention the time as to when he met the Accused Officer

in the Office. It may be true that Ex.P29 -Register contains the

signature of the Accused Officer showing that he attended the

Office on that day, but, PW5 who was working as Senior Section

Supervisor, BSNL, Tirupati, in his evidence admits that, on

05.06.2003, PW1 approached him and enquired about his bills,

to which he told him that he processed the bills. When, PW1

enquired about the Executive Engineer, he was informed that

the Executive Engineer was not available in the Office and as he

along with Accused Officer went out to attend arbitration

proceedings. On further enquiry, PW5 informed him that they

will not come back to Office on that day. It would be useful to

extract these admission in the evidence of PW5, which are as

under:

"On 05.06.2003 Sri Seshaiah (PW1) approached me and enquired about his bill. I told PW1 that I processed the bills. Then he enquired me about my EE, I told him that my EE was not available in the office as he along with the accused officer went to attend the court case regarding an arbitration proceedings. He further enquired me that whether they will come back to the office, and I informed him that they will not come back to the office on that day."

40) It is also to be noted here that against the answers elicited

from PW5, there was no cross-examination by Public Prosecutor.

Therefore, this evidence of PW5, who was working as Senior

Section Supervisor in BSNL, Tirupati, establish beyond doubt

that when PW1 visited the Office on 05.06.2003, neither the

Accused Officer nor the Executive Engineer were present in the

Office. Therefore, a doubt arises as to whether really the

Accused Officer was present in the Office at the time when PW1

visited, and also as to whether the Accused Officer demanded

bribe from PW1 on that day. Therefore, the argument of the

learned Counsel for the Appellant that the very demand on

05.06.2003 itself is false cannot be brushed aside and the same

requires acceptance.

41) Coming to the acceptance of bribe amount, PW3 and PW14

are the two mediators before whom the 1st mediator's report

[Ex.P14] was prepared in the Railway Retiring Room at Tirupati.

PW3 was asked to accompany PW1 to the Office of the Accused

Officer and thereafter, give a signal by wiping his face with a

handkerchief, after the amount is accepted by Accused Officer.

Pursuant thereto, PW3 along with PW1 and other members of

the trap party left the Railway Retiring Room at 1.15 p.m., and

proceeded to the Office of Accused Officer. But, PW1 in his

evidence only speaks about himself and another person [name

not mentioned] going to the Divisional Office at Tirupati and

meeting the Accused Officer, who was sitting in his office. His

evidence does not show that on meeting the Accused Officer, the

Accused Officer enquired as to whether he brought the money as

demanded by him. His evidence shows that when enquired

about Ex.P1 to Ex.P12 applications, the Accused Officer replied

that he already enquired ['adaginanu']. Thereafter, when

demanded by the Accused Officer, he claims to have handed

over the money to the Accused Officer, who received with his

right hand and kept it in his left side shirt pocket. Later, PW1

along with another person left the Chambers of the Accused

Officer, came out and gave the signal by waiving his hand. It

would be useful to extract this portion of PW1, which is as

under:

"Then myself and another person went to Divisional Office at Tirupati and met Sri Annamalai, accounts officer who is present in the dock (accused is sitting in the dock, witness identified him). Then I enquired about my applications i.e., Exs.P1 to P12. The accused replied that he already informed ('adiginanu'). Then I picked up the amount from my left shirt pocket with my right hand and gave it to the accused. He picked up the amount with the right hand and kept in his left shirt pocket. Then I came out from the chambers of the accused. The person who followed me also came out and gave a signal by waving his hand. Immediately the Inspector, CBI came there. The inspector entered into the chambers of the accused and had a conversation with him".

42) From the evidence of this witness, firstly, it is very much

clear that, the Accused Officer never demanded any bribe when

PW1 met him; secondly PW1 enquired Ex.P1 to Ex.P12, though,

Ex.P9 to Ex.P12 never reached the Office of Executive Engineer

by then; and thirdly without any demand, he claims to have

handed over the money to the Accused Officer, who received it

and kept it in his shirt pocket. At this stage, it is also to be

noted that, during the preparation of pre-trap proceedings, PW1

was not sure whether he gave Rs.1,000/- rupee or Rs.500/- to

Investigation Officer to be paid to the Accused Officer. It is

relevant to note the same, which is as under:

"The assistant of the inspector demonstrated applying of some powder when the powder is dropped in the water, it turned into rose colour. I provided Rs.1,000/- or Rs.500/- under the instructions of CBI Inspector, some powder was applied and numbers of the above currency notes are noted."

43) The evidence of PW3 is something different. According to

him, himself and PW1 went to BSNL Executive Engineer's Office,

situated at Tiruchunur, Tirupati, followed by CBI Officials. The

room of Accused Officer was situated in the 1st floor of the

building and PW1 first went inside the room. When PW3 was

thinking about to entering the room, he heard conversation of

persons. PW1 himself came out by giving a signal stating that

Accused Officer accepted the bribe amount. Thereafter, PW3 is

said to have given a pre-arranged signal by wiping his face with

handkerchief. Later, CBI Officials and others entered the room of

the Accused Officer. This portion of evidence of PW3 is as under:

"Myself and PW1 went to BSNL Executive Engineer's Office, situated at Tiruchunur road at Tirupati. The CBI team followed us. The room of Sri Annamalai is situated on the 1st floor of the building and PW1 went inside the room first. Then I was thinking to enter or not, I heard conversation of persons. PW1 himself came out by giving signal himself stating Sri Annamalai accepted the bribe and PW1 came out from the door. Then, I gave the pre-arranged signal by wiping my face with kerchief. Then, the CBI Officials and others came into that room. The PW1 once again entered into the room of Sri Annamalai. I too followed him."

44) From the evidence of this witness, it is very clear that

though PW3 was asked to accompany PW1, he did not enter the

Office room of Accused Officer. Before PW3 could realize as to

whether he should enter the room or not, PW1 came out saying

that the Accused Officer accepted the bribe amount, which led to

he giving a pre-arranged signal. His evidence does not anywhere

disclose the presence of another person, who accompanied PW1

into the Office. Further, his evidence is in contra-distinction to

the evidence of PW1 to the effect that, PW1 gave a signal by

waiving his hand, which led to CBI Officials enter the Office of

Accused Officer, while, the evidence of PW3 is to the effect that,

after PW1 gave signal stating that Accused Officer has accepted

the bribe, he gave a signal, which was agreed upon earlier. May

be the discrepancy, pointed out appear insignificant. But at this

stage, one fact, which should be noted is that PW1 went into the

Office and within no time, he came out saying that the Accused

Officer has accepted the bribe amount. I feel it would be

important to refer to the evidence of PW14 and the evidence of

PW4 at the stage.

45) PW14 is one of the mediators who accompanied the trap

party. According to him, the CBI instructed PW1 and PW3 to go

in advance to BSNL Office and also instructed him to give a

signal by wiping his face after the amount is accepted. PW1 and

PW3 went to BSNL Office first and they were followed by him

and others. According to him, he and another person stood

outside the BSNL Office. Within five minutes, PW1 came out of

the Office and gave a pre-arranged signal. Then, CBI Inspector

rushed into the Office followed by PW14. At that time, the

Accused Officer was said to be closing the Office. It would be

useful to refer to the evidence-in-chief of PW14, which is as

under:

"The CBI inspector instructed me to follow him. The inspector instructed PWs.1 and 3 to go in advance to BSNL

office and also instructed after giving the amount, for giving a signal by wiping their faces. Ex.P18 is the same report prepared at the railway retiring room which bears my signature and others (when Ex.P18 shown to the witness, he identified his signature and others).

PWs. 1 and 3 went first to BSNL Office. Myself and others followed them. Myself and other stood outside the BSNL Office PW1 came out five minutes after entering into the BSNL Office and gave the pre-arranged signal. Then the CBI inspector rushed into the office of BSNL, I followed him."

46) The evidence of this witness goes to show PW1 and PW3

went to the Office of Accused Officer much in advance, followed

by PW14 and others and on a signal given by PW1, the CBI

Inspector rushed into the Office of BSNL, which evidence is

again in contradiction to the evidence of PW3, with regard to

relaying of signal. Though, the discrepancy, which has been

pointed out, appears to be insignificant or minor in nature, the

same, in my view, may have some importance, having regard to

evidence of PW4.

47) But referring to the evidence of PW4, it is to be noted that

the evidence of PW1, PW3 and PW14 would show that, though,

PW3 was asked to accompany PW1, he, did not go inside the

room and before he could realize as to whether he should go

inside, PW1 came out and gave a signal by waiving a signal and

saying that the money was accepted, which is contrary to the

signal agreed upon. In-spite of the same, the CBI Officials are

alleged to have entered the Office.

48) PW4 in his evidence admits that, he got acquaintance with

PW1 since last 10 years and on 09.06.2003 he came to the

Office to see him and then entered into the chambers of Accused

Officer and within two minutes thereafter, PW1 came out and

went away. Immediately, thereafter, the Accused Officer also

came out from his Chambers by raising voice 'where is Seshaiah'

[PW1]. Immediately, four or five persons came there, caught hold

of the Accused Officer and took him to his Chambers. However,

to a suggestion that the Accused Officer had money in his right

hand was denied by him. It would be useful to extract the

admissions elicited in the evidence of PW4, which is as under:

"On 09.06.2003 PW1 came to our Office, wished me and then entered into the chambers of Accused Officer. Two minutes thereafter, PW1 came out and went away. Immediately, the Accused Officer also came out from his Chambers by raising voice 'where is Seshaiah'. Immediately, 4 or 5 persons came there and caught hold the Accused Officer and took him to his Chambers. It is not true to suggest that, the Accused Officer had amount in his right hand when he came out from his chambers following PW1, and that I am intentionally deposing false as if I did not observe the cash in his hand."

49) From the evidence of this witness, it is evident that after

PW1 came out of the Chambers, the Accused Officer also came

out raising voice as 'where is Seshaiah'. If really the amount was

accepted as bribe, there is no justification for the Accused

Officer to come out raising voice against PW1. He would have

simply kept the money in his pocket and closed the Office, as

stated by PW3, or that he would have continued with the work,

as stated by other witnesses. There was no reason for him to

come out calling PW1. Having regard to the above, the plea of

the Accused Officer that the money was forcibly kept in his

hands by PW1 and then came out cannot be brushed aside. This

plea of thrusting or forcibly keeping money assumes significant

as the evidence of PW1 itself show that the Accused Officer never

demanded any money when he met him on 09.06.2003 and

when enquired about Ex.P1 to Ex.P12. The Accused Officer

seems to have informed him that he will inquire about the same.

It is very difficult to believe that, without any demand, PW1

would have parted with the money. This circumstance, in my

view, show that the money was kept forcibly by PW1.

50) Further, as held by the Apex Court, mere recovery of

money by itself will not lead to an inference that the money was

accepted as illegal gratification, more so, in the facts of this

case, where the prosecution failed to prove the demand on

05.06.2003 and also demand prior to alleged acceptance on

09.06.2003. Definitely things would have been different had any

material been placed to show that this amount was paid as

bribe. PW3 and PW14 do not anywhere indicate the payment of

money to Accused Officer. Therefore, in my view, the prosecution

has failed to prove the demand and in the absence of evidence to

show that the money was paid as illegal gratification; mere

recovery of money, may not be sufficient to convict the Accused

Officer for the offences punishable under Sections 7 and 13(2)

read with 13(1)(d) of Prevention of Corruption Act, 1988.

51) In P. Satyanarayana Murthy v. District Inspector of

Police and Anr.,4 the Apex Court held that, mere possession

and recovery of currency notes from an accused without proof of

demand would not establish Section 7 as well as Section

13(1)(d)(i) & (ii) of the Prevention of Corruption Act. It has been

propounded that in the absence of any proof of demand for

illegal gratification, the use of corrupt or illegal means or abuse

of position as a public servant to obtain any valuable thing or

pecuniary advantage cannot be held to be proved. The proof of

demand, thus, has been held to be an indispensable essentiality

and of permeating mandate for an offence under Sections 7 and

13 of the Act. Dealing with the same, the Court observed as

under:

"The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."

(2015) 10 SCC 152

52) The said principle was reiterated by the Apex Court in

Mukhtiar Singh (since deceased) through His Legal

Representative v. State of Punjab5, as under:-

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."

53) In fact, in C.M. Sharma v. State of Andhra Pradesh

etc.,6 the Apex Court held as under:

"In support of the submission reliance has been placed on a decision of this Court in the case of Panalal Damodar Rathi v. State of Maharashtra (1987) Suppl. SCC 266 and our attention has been drawn to the following paragraph of the judgment:

"26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion."

(2017) 8 Supreme Court Cases 136

LAWS (SC) 2010 11 84

In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 this Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

Another decision on which reliance is placed is the decision of this court in the case of State of Maharashtra v. Dyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in which it has been held as:

"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety."

54) In the judgments referred to above, it has been

categorically held that, in order to prove a charge under Sections

7 and 13 of 1988 Act, the prosecution has to establish by proper

proof, the demand and acceptance of illegal gratification. The

Apex Court held that till that is accomplished, accused should

be considered to be innocent. The proof of demand of illegal

gratification, thus, is the gravamen of offence under Sections 7

and 13(1)(d)(i) and (ii) of 1998 Act and in the absence thereof,

unmistakably the charge, therefore, would fail. The Apex Court

went on to hold that mere acceptance of any amount allegedly

by way of illegal gratification or recovery thereof, de-hors proof of

demand, ipso facto, would thus not be sufficient to bring home

the charge under aforesaid two sections.

55) In State of Punjab v. Madan Mohan Lal Verma7, the

Hon'ble Supreme Court held that, mere receipt of the amount by

the accused is not sufficient to fasten guilt, in the absence of any

evidence with regard to demand and acceptance of the amount as

illegal gratification'. It is appropriate to incorporate paragraph

No.7 of the said judgment, which reads thus:

"7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the

2013(3) MLJ (Crl) 565

success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person."

56) In view of the evidence adduced by the prosecution and

having regard to the judgments referred to above, I am of the

view that, there is any positive evidence to show that there was

any preliminary enquiry before registering the crime; that the

amount, which was recovered from the Accused Officer, was the

amount paid by the PW1 as illegal gratification for doing a

favour. This finding is based on the evidence referred to above,

wherein, the prosecution failed to prove that there was a

demand on 05.06.2003 and a favour pending with the Accused

Officer either on the date of alleged demand or on the date of

acceptance of money and more particularly no demand was

made by the Accused Officer either earlier or on the date of trap