Andhra Pradesh High Court - Amravati

Uppala Rama Krishna , vs State Rep By Inspector Of Police, on 27 April, 2023

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

           CRIMINAL APPEAL NO.1020 OF 2007

JUDGMENT:-

     This Criminal Appeal is filed by the appellant, who was the

accused in C.C.No.8 of 2003, on the file of Special Judge for SPE

& ACB Cases, Nellore ("Special Judge" for short), challenging the

judgment, dated 06.08.2007, where under the learned Special

Judge, found the Accused Officer ("A.O." for short) guilty of the

charges under Sections 7 and 13(2) r/w 13(1)(d) of Prevention

of Corruption Act, 1988 ("P.C. Act" for short) and convicted him

under Section 248(2) of the Code of Criminal Procedure

("Cr.P.C." for short). After questioning the A.O. about the

quantum of sentence, the learned Special Judge, sentenced him

to suffer rigorous imprisonment for one year and to pay a fine of

Rs.10,000/-, in default to suffer simple imprisonment for two

months for the offence under Section 7 of P.C. Act and further

sentenced him to suffer rigorous imprisonment for two years

and to pay a fine of Rs.15,000/-, in default to suffer simple

imprisonment for three months for the offence under Section

13(2) r/w 13(1)(d) of P.C. Act and further directed that both the

sentences, as above, shall run concurrently.   Felt aggrieved of

the same, the unsuccessful A.O. filed the present Criminal
                                     2



Appeal questioning the judgment, dated 06.08.2007 in C.C.No.8

of 2003.

      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,

A.C.B., Prakasam District, Ongole, filed a charge sheet under

Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act pertaining to

Crime No.3/ACB-NPK/02 of ACB, Nellore Range, alleging in

substance are as follows:

      (i) Sri Uppala Rama Krishna Vara Prasad, S/o Venkata

Ramaiah, worked as Assistant Engineer, O/o Mandal Parishad,

Dornala      Mandal,    Prakasam     District    from    02.02.1999      to

27.04.2002, as such, he is a public servant within the meaning

of Section 2(c) of P.C. Act.

      (ii)    Sri Allu Subba Reddy, S/o Nagi Reddy is resident of

Peda Dornala Village, Dornala Mandal, Prakasam District and he

is the complainant in ACB case as list of witness No.1. The

Mandal       Parishad   Development        Officer,     Dornala    (L.W.3-

T. Hanumantha Rao) entrusted two cement road works of

Inamukkala village to L.W.1-Allu Subba Reddy during 15th

Janmabhoomi        Programme       i.e.,   (1)   from      KG     road   to
                                     3



T. Chalamareddy house with an estimated cost of Rs.2,50,000/-

and (2) from C. Kasi Reddy house to Ramalayam with an

estimated cost of Rs.1,50,000/-. L.W.1 collected Rs.1,20,000/-

as 30% contribution from Inamukkala villagers and remitted in

favour of Collector, Prakasam District through demand drafts in

respect of the above works. He executed the said work under

the supervision of A.O. during November, 2001 onwards and

completed the same. He has to receive 50% of cash payment

and the remaining 50% in the shape of rice towards labour

charges for Janmabhoomi works. A.O. prepared part bill for the

first work for the value of Rs.2,17,849/- and out of the bill

amount of 50%, Rs.1,08,924/- was paid as cash payment to

L.W.1 and further 9 metric tons of rice @ Rs.5,650/- per metric

ton was issued as labour charges. A.O. kept the part final bill

pending in respect of first work.

      (iii) In respect of the second work which was granted to

L.W.1, he was paid an amount of Rs.75,090/- and he was issued

7 metric tons of rice. He was due for Rs.16,076/- cash payment

and he was due for issuance of 13.124 metric tons of rice in

respect of the first work and he was further due for issuance of

6.258 metric tons of rice for the second work. The total cash

payment due was Rs.16,076/- and the quantity of rice due was
                                 4



19.382 metric tons for two works.     He requested A.O. several

times to complete the recording of M-book and to arrange final

bill amount. A.O. was postponing the same.

      (iv) On 23.03.2002 at 6-00 p.m., L.W.1 met the A.O. at

his residence and requested him for arranging final bill payment

for issuance of rice. A.O. demanded L.W.1 to pay illegal

gratification of Rs.24,000/- @ 6% for the total estimated value

of Rs.4,00,000/- and informed that he would finalize the bills

and arrange for the payment of cash and issuance of rice

whenever he would pay Rs.24,000/- as bribe. L.W.1 pleaded his

inability for payment of illegal gratification, as he executed the

work without any profit motive. A.O. informed to L.W.1 that his

work would not be completed unless he is paid with Rs.24,000/-

as bribe. He instructed L.W.1 to pay the same within four days.

L.W.1 accepted to pay the bribe, as he has no other go. As he

was not willing to pay the bribe amount to A.O., he approached

the Inspector of Police, ACB, Ongole (L.W.18) and presented a

report on 24.03.2002 at 2-00 p.m. L.W.18 caused confidential

enquiries and D.S.P., ACB, Nellore (L.W.17) registered the

report of L.W.1 as a case in Crime No.3/ACB-NPK/02 on

26.03.2002 at 11-55 p.m. He conducted pre-trap proceedings at

the office of Inspector, ACB, Ongole on 27.03.2002 from 6-00
                                5



a.m. to 7-30 a.m. in the presence of L.W.14-K. Srinivasa Murthy

and L.W.15-A.V.S.S. Prasad, the mediators. The D.S.P. (L.W.17)

along with L.W.1, mediators and other ACB staff left Ongole on

27.03.2002 at 7-45 a.m., and reached Dornala at 11-20 a.m.

L.W.1 met A.O. at the seat of Office Superintendent and on

seeing him, A.O. came out. L.W.1 requested A.O. to finalize the

bills in balance rice. A.O. took L.W.1 into the room of MPDO in

which nobody was present and enquired L.W.1 whether he

brought the demanded amount of Rs.24,000/-.        A.O. further

demanded and accepted Rs.24,000/- from L.W.1 for doing

official favour. He received the amount with his right hand and

kept it in his right side hip pocket of the pant and promised

L.W.1 that his work would be completed soon. On receipt of

signal of L.W.1 at 11-40 a.m., the D.S.P-L.W.17 along with

mediators and other ACB officials rushed to the office of MPDO

and conducted post-trap proceedings between 11-45 a.m. to

6-00 p.m. Sodium Carbonate solution test was conducted on

both hand fingers of A.O., which yielded positive result.   A.O.

produced the tainted currency notes from his right side hip

pocket of the pant and the numbers were tallied with the

numbers that were recorded in the pre-trap. The DSP seized

Rs.24,000/- and relevant records from the possession of A.O.
                                  6



The test conducted on the inner linings of the pant pocket of

A.O. also yielded positive result. The DSP also seized the pant

of A.O.

      (v) The Government of Andhra Pradesh accorded sanction

to prosecute the A.O. in a Court of law under Sections 7 and

13(2) r/w 13(1)(d) of P.C. Act vide G.O.Ms.No.14 of PR & RD

(VS-I) Department, dated 22.01.2003. After completion of

investigation, Inspector of Police, ACB, filed charge sheet.

      Hence, the charge sheet.

      4)    The learned Special Judge took cognizance of the

case under the above provisions of law and issued summons to

the A.O. On appearance of A.O., copies of case documents were

furnished to him as contemplated under Section 207 of Cr.P.C.

A.O. was examined under Section 239 of Cr.P.C. with reference

to the allegations in the prosecution case, for which he denied

the allegations. Then, the learned Special Judge framed charge

under Section 7 of P.C. Act, 1988 and further charge under

Section 13 (2) r/w 13(1)(d) of P.C. Act, 1988, against the A.O.

and explained to him in Telugu for which he denied the charges

and pleaded not guilty and claimed to be tried.

      5)    In order to establish the guilt against the A.O., the

prosecution before the Court below, examined P.W.1 to P.W.9
                                 7



and got marked Ex.P.1 to Ex.P.25. During the cross examination

of P.W.1, Ex.D.1 was marked. M.O.1 to M.O.7 were marked on

behalf of the prosecution. The A.O. was examined under Section

313 of Cr.P.C. with reference to the incriminating circumstances

appearing in the evidence let in, for which he denied the same

and stated that as Deputy Executive Engineer did not check

measured the slab work of second work, he (A.O.) could not

prepare the final bill of the first work and that L.W.13-Allu

Srinivasa Reddy had received a sum of Rs.24,000/- from him

(A.O.) as hand loan and repaid the same on the date of trap. To

that effect, he filed his written statement during Section 313 of

Cr.P.C. examination. He reported no defence evidence.

     6)    The learned Special Judge on hearing both sides and

on considering the oral as well as documentary evidence, found

A.O guilty of the charges under Sections 7 and 13(2) r/w

13(1)(d) of P.C. Act and accordingly convicted and sentenced

him as above. Challenging the same, the unsuccessful A.O. filed

the present Criminal Appeal.

     7)    Here, in deciding this Criminal Appeal, the points for

determination are as follows:

     (1) Whether the prosecution before the Court below
     proved that A.O. was a public servant within the meaning
     of Section 2(c) of P.C. Act and as to whether the
                                 8



     prosecution obtained a valid sanction under Section 19 of
     the P.C. Act to prosecute the A.O. for the offences alleged
     under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act?

     (2) Whether the prosecution before the Court below
     proved the pendency of the official favour of P.W.1 with
     A.O. prior to the trap and on the date of trap?

     (3) Whether the prosecution before the Court below
     proved that A.O. demanded P.W.1 to pay bribe of
     Rs.24,000/- and accepted the same from P.W.1 for doing
     official favour in the manner as alleged?

     (4) Whether the prosecution proved the charges under
     Sections 7 and 13(2) r/w 13(1)(d) of Prevention of
     Corruption Act, 1988 against the A.O. beyond reasonable
     doubt?


Point No.1:-

     8)    Insofar as the fact that A.O. was a public servant

within the meaning of Section 2 (c) of the P.C. Act and that he

was drawing salary     from the     account of Government is

concerned, there is no dispute.     With regard to the allegation

that the prosecution obtained a valid sanction for prosecution of

A.O. in accordance with Section 19 of P.C. Act for the offences

under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act is

concerned, the prosecution relied upon the evidence of P.W.7

and Ex.P.23 before the Court below.     P.W.7 is Section Officer,
                                  9



Panchayat Raj and Rural Development Department, Vigilance-

IA, A.P. Secretariat, Hyderabad. He deposed that M. Ramaiah,

Deputy Secretary to the Government issued G.O.Rt.No.612,

dated 26.04.2007 authorizing him to give evidence in this case.

Ex.P.22 is the said authorization. He brought the file relating to

the sanction orders issued against A.O. The D.G., ACB, sent

preliminary report along with copy of F.I.R., mediators reports 1

and 2, final report and substance of evidence for according

sanction order along with draft sanction order. The Section

Officer processed the file. The file was circulated to the Assistant

Secretary, Deputy Secretary and Secretary Sri V. Nagireddy and

the then Minister for Panchayat Raj and thereafter Law

Department.    Thereafter Sri V. Nagireddy, the then Secretary,

Panchayat Raj to the Government, issued sanction orders to

prosecute the A.O. under G.O.Ms.No.14, dated 22.01.2003.

Ex.P.23 is the said G.O.     He worked under Sri V. Nagireddy

when he worked as Secretary, B.C. Welfare Department, as

such, he can identify his (Sri V. Nagireddy) signature. Ex.P.23 is

containing the signature of Sri V. Nagireddy. He (P.W.7)

identified the signature of Sri V. Nagireddy in Ex.P.23. Sri

V. Nagireddy after considering the material placed before him

and by application of his mind, issued Ex.P.23 sanction order.
                                 10



During cross examination, he deposed that along with file,

explanation of A.O. was also received by their section and A.O.

in his explanation set up a defence that Allu Sreenivasulu Reddy,

brother of P.W.1, took hand loan from him and at the time of

trap, Allu Sreenivasulu Reddy repaid it. He denied that without

application of his mind, V. Nagireddy issued Ex.P.23.

      9)    The Court below upheld the contention of the

prosecution by giving finding that the prosecution proved a valid

sanction under Ex.P.23 so as to prosecute the A.O. for the

offences alleged under the P.C. Act. Insofar as the grounds of

appeal is concerned, A.O. did not challenge the findings of the

Court below that there was a valid sanction to prosecute the

A.O. for the offences alleged under P.C. Act. However, the

evidence of P.W.7 goes to prove that he knows very well the

signature of V. Nagireddy.    A perusal of sanction order under

Ex.P.23 reveals that it was on application of mind sanction order

was issued. The evidence of P.W.7 goes to prove that the

investigating   agency   supplied    necessary   material   to   the

sanctioning authority to go through it. In my considered view,

the evidence of P.W.7 is not at all shaken during the cross

examination of him. The Court below looking into the evidence

of P.W.7 coupled with Ex.P.23 and further relying upon the
                                            11



decision of the Hon'ble Supreme Court in State through

Inspector of Police, A.P., vs. K. Narasimhachary 1 and

further the decision of the Hon'ble Supreme Court in Mohd.

Iqbal Ahmed v. State of Andhra Pradesh 2 held that the

prosecution has proved a valid sanction under Ex.P.23.

          10)     The Hon'ble Supreme Court in K. Narasimhachary's

case (1 supra) considered the fact that there was no challenge

to the authenticity of the sanction at any stage during the

course of trial and further the witness identified the signature of

the sanctioning authority.                With the above observations, the

Hon'ble Supreme Court held that the sanction was proved.

          11)     The Hon'ble Supreme Court in Mohd. Iqbal Ahmed's

case (2 supra) held that order of valid sanction can be proved in

two ways: (1) by producing the original sanction which itself

contains the facts constituting the offence and the grounds of

satisfaction or (2) by adducing evidence aliunde to show that the

facts were placed before the Sanctioning Authority and the

satisfaction arrived at by it.

          12)     Considering       the    evidence    of    P.W.7,   who     had

acquaintance with the signature of the sanctioning authority and

looking        into   the     contents     of   Ex.P.23,    which   reveals   the

1
    2006(1) ALT (Crl.) 114 (S.C.)
2
    (1979) 4 SCC 172
                                12



application of mind by the sanctioning authority, I do not find

any reason in the contention of the A.O. before the Court below

that there was no valid sanction.

      13)   Having regard to the above, this Court is of the

considered view that the prosecution adduced cogent evidence

before the Court below to prove that there was a valid sanction

under Section 19 of the P.C. Act to prosecute the A.O. for the

offences under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act.

There was no dispute before the Court below that A.O. was a

public servant and drawing salary from the account of the

Government. Hence, I am of the considered view that the

prosecution before the Court below proved that there was a

valid sanction to prosecute the A.O. under Sections 7 and 13(2)

r/w 13(1)(d) of P.C. Act and A.O. was a public servant within the

meaning of Section 2 (c) of P.C. Act.

Point Nos.2 to 4:

      14)   The learned counsel appearing for the appellant

would contend that the prosecution before the Court below

failed to prove the pendency of the official favour in the manner

as alleged by the prosecution. The A.O. could not prepare the

bill as curing work attended by P.W.1 could not be completed

until 21 days were expired. A.O. taken several steps so as to
                                13



process the bills relating to P.W.1 and P.W.1 also received

certain amounts and also the rice with regard to the first work

and the second work.    As the curing work attended by P.W.1

was to be scrutinized only after a period of three weeks. A.O.

could not attend the rest of the work. The Court below relying

upon the evidence of P.W.4 with erroneous reasons upheld the

case of the prosecution as regards the pendency of the official

favour. P.W.3 on certain aspects did not support the case of the

prosecution. P.W.1 did not speak categorically the pendency of

the official favour. He did not support the case of the

prosecution even with regard to the demand alleged against

A.O. prior to the trap and on the date of trap to pay bribe of

Rs.24,000/-. The prosecution did not prove the pendency of the

official favour before A.O. in respect of work of P.W.1. Insofar

as the demand of bribe is concerned, either before the date of

trap or on the date of trap, there was no substantive evidence

adduced by the prosecution. According to P.W.1, as he could not

complete the work, he entrusted the work to his brother

A. Sreenivasulu Reddy and A. Sreenivasulu Reddy borrowed the

amount from A.O. and could complete the work. As A.O. was

demanding A. Sreenivasulu Reddy to pay back the amount

borrowed   by   him,   he   bore    grudge   against   A.O.   P.W.1
                                 14



categorically explained the circumstances on which Ex.P.1, the

report of him was brought into picture. According to him, he

prepared Ex.P.1 by just looking into the draft prepared by ACB

officials. So, P.W.1 acted according to the whims and fancies of

the ACB officials and laid a false report under Ex.P.1 against the

A.O. According to him, the ACB officials handed over the amount

to him and in turn he handed over the amount to A.

Sreenivalusu Reddy and Sreenivasulu Reddy went to A.O. and

returned back and told that he paid the amount to A.O. He did

not depose that A.O. demanded him to pay bribe of Rs.24,000/-

prior to the date of trap and on the date of trap. The defence of

A.O. before the investigating officer during post-trap is that one

A. Sreenivasulu Reddy borrowed amount from him and he

cleared the amount on the date of trap. Investigating officer did

not record the true version of A.O.      On the other hand, he

twisted the version of A.O. that A.O. borrowed Rs.24,000/- from

P.W.1 and on the date of trap he repaid the amount. Therefore,

there is no substantial evidence that A.O. demanded P.W.1 to

pay the bribe and accepted the same in pursuance of the

demand for bribe. The mere recovery of tainted amount from

the possession of A.O. would not prove the charges against the

A.O. Though there was no evidence as regards the demand, the
                                       15



learned Special Judge on erroneous appreciation of the facts and

circumstances, convicted the A.O. for the charges. He would

further submit that the Court below did not believe Ex.D.1

issued by A. Sreenivasulu Reddy to the A.O. in token of

discharge of acknowledgement of the amount borrowed by him

from A.O. He would further contend that the evidence on record

does not warrant to award conviction. On the other hand, it

warrants the Court to extend an order of acquittal, as such, the

judgment of the Court below is not sustainable under law and

facts. Therefore, it is liable to be set aside.

       15)     The learned counsel for the appellant in support of

his contentions would rely upon the decisions in N. Vijaya

Kumar vs. State of Tamil Nadu3, B. Jayaraj vs. State of

Andhra Pradesh 4 , N. Sunkanna vs. State of Andhra

Pradesh 5 and          P.    Satyanarayana       Murthy    vs.   District

Inspector       of    Police,     State    of   Andhra    Pradesh   and

another6.

       16)     Sri S.M. Subhani, learned Standing Counsel for ACB

and Special Public Prosecutor, appearing for the respondent/

State, would contend that the documents seized from the

(2021) 3 Supreme Court Cases 687

(2014) 13 Supreme Court Cases 55

(2016) 1 Supreme Court Cases 713

(2015) 10 Supreme Court Cases 152

possession of A.O. during the post-trap and evidence of P.W.2,

P.W.3 and P.W.4 though P.W.3 did not support the case of the

prosecution on certain aspects, would prove clinchingly the

pendency of the official favour in respect of the work relating to

P.W.1 before the A.O. prior to the date of trap and on the date

of trap. The learned Special Judge with cogent reasons believed

the case of the prosecution with regard to the pendency of the

official favour. He would contend that P.W.1 was not in the habit

of filing false reports against the public servants even according

to him in cross examination done by the Special Public

Prosecutor. For obvious reasons and being won over by the

A.O., P.W.1 on account of delay in conducting the trial turned

hostile to the case of the prosecution. His evidence would prove

the pendency of the official favour of him before A.O. At the

time of evidence only, he introduced the role of his brother Allu

Sreenivauslu Reddy as if he entrusted the work to Sreenivasulu

Reddy and Sreenivasulu Reddy borrowed the amount from A.O.

and completed the work and A.O. demanded Sreenivasulu

Reddy to return back the amount borrowed by him, as such, he

was implicated falsely. The admissions made by him in cross

examination by the Special Public Prosecutor would falsify his

evidence in chief examination. The presence of so-called

Sreenivasulu Reddy was not at all mentioned in the post-trap

proceedings. It is P.W.1, who handed over the tainted amount

to A.O. during the post-trap on further demand. There was no

question of P.W.1 giving Ex.P.1 report, if really there was no

demand of bribe. The Court below with cogent reasons ordered

perjury against P.W.1 and it is altogether a different aspect.

The prosecution proved before the Court below that the A.O.

dealt with the tainted amount and the amount was recovered

from the physical possession of A.O. So, A.O. accepted the

tainted amount from P.W.1. He would further contend that as

the amount was recovered from the possession of A.O., for

which A.O. had no probable explanation and he changed his

defence from time to time right from the post-trap and till

during the course of trial, the Court below disbelieved his theory

that the amount which he received was of the amount borrowed

by Sreenivasulu Reddy. When the A.O. miserably failed to

probabalize his defence theory, the inference which is to be

drawn basing on the proven fact is that he demanded P.W.1 and

accepted the amount from P.W.1 to do official favour. He would

further submit that the learned Special Judge with cogent

reasons convicted the A.O. and sentenced him in accordance

with law, as such, there are no grounds to interfere with the

judgment of Court below.

17) Coming to the evidence of P.W.1, who is no other

than the defacto-complainant, admittedly, he did not support

the case of the prosecution. It is appropriate to mention here

the substance of his evidence explaining the manner in which he

deviated from the contents of Ex.P.1. He deposed that he is an

agriculturist. He is doing small contract works. In the year 2001

in Janmabhoomi Programme, their villagers requested him to do

the contract works of CC road from KG road to the house of

Chalamareddy with estimated cost of Rs.2,20,000/- and from

the house of Kasireddy to Ramalayam with an estimated cost of

Rs.1,50,000/-. He collected 30% i.e., Rs.1,20,000/- from the

villagers and remitted the same to the Collector through demand

draft. M.P.D.O., Dornala entrusted the work to him. A.O., who

was Assistant Engineer, was the supervising authority. He

started the work in November, 2001 (To this extent P.W.1

supported the case of the prosecution). The manner in which he

deviated from the case of the prosecution as per his deposition

is as follows:

"He did the work up to first week of December. During

the first week of December, he was suffering from Jaundice. He

handed the work to his younger brother Sreenivasulu Reddy

(L.W.13) and completed the work by March, 2002. While doing

the work, Sreenivasulu Reddy requested money to do the work.

He expressed his inability. Sreenivasulu Reddy borrowed the

amount. On his advice, Sreenivasulu Reddy requested A.O. to

lend Rs.30,000/-. His brother told him that as A.O. was not

having Rs.30,000/-, he (A.O) borrowed Rs.24,000/- from

another person and gave it to his brother. Later, A.O.

demanded him to pay back the amount given by him. By then,

it was January, 2002. At that time, they were paying the

amount to the shops from which they took the cement on

credit. They told to A.O. that they will pay the amount later.

A.O. insisted him to pay the amount. He also abused his brother

in the presence of his villagers. His brother told the same to

him. When he approached Brahmareddy, who was their Mandal

Praja Parishad President and complained against A.O. and when

he requested Brahmareddy to change the A.O. from A.E. Post,

Brahmareddy told him that he cannot do so. At his advice, he

approached Sarat Babu, ACB Inspector. He informed the facts

to Sarat Babu. Sarat Babu advised him to give a report alleging

that A.O. demanded money. Sarat Babu got written a report

through a person on a paper and advised him to write a report

by seeing into the said report. He did so. Ex.P.1 is the said

report".

18) The above is the manner in which he deviated from

the case of the prosecution with regard to the lodging of Ex.P.1.

19) With regard to the manner in which he deviated

from the case of the prosecution relating to pre-trap and post-

trap proceedings as per his deposition is as follows:

"The D.S.P. told him to come to him three days thereafter

along with Rs.24,000/-. On 27.03.2002 he went to ACB Office,

Ongole along with Rs.24,000/- i.e., 240 hundred rupee

denomination. Sarat Babu substituted with five hundred rupee

denomination. There were five other persons there. They

applied power on the notes and kept it in his shirt pocket and

told him to give the amount to A.O. at Dornala. They went to

Dornala by 11-30 a.m. He was asked to stop down from the

vehicle at Market yard. He was instructed to go to the office of

the A.O. by walk. At that time his brother Sreenivasulu Reddy

was present and he gave the amount to his brother stating that

the amount will be given to A.O. Sreenivalusu Reddy went into

the office and returned and told him that he gave the amount to

A.O. Then, he came out and relayed pre-arranged signal. ACB

officials came there and he told them that he paid the amount

to his brother and his brother paid the amount to A.O. He was

asked to wait outside. Half an hour thereafter he was called

and asked him to go away".

20) The prosecution got marked the documents through

P.W.1 and in this regard his evidence is as follows:

"Ex.P.2 is the bill for the work of CC road from K.G. Road

to Chalamareddy house. Ex.P.2 bears his signature on revenue

stamp and contract certificate. Ex.P.3 is the bill relating to first

work. In Ex.P.3 he signed on the revenue stamp and on

memorandum of payments. Ex.P.4 is the file relating to the

contract certificate for the work of CC road from K.G. Road to

Ramalayam. Ex.P.5 is the file relating to work of CC road from

Kasireddy house to Ramalayam. Ex.P.6 is the file containing

estimates for sanction. Ex.P.7 is M-book at page Nos.3, 8, 9 and

12. He also signed in Ex.P.8".

21) The prosecution got declared him as hostile and

subjected him to lengthy cross examination with reference to

the contents of Ex.P.1, his Section 161 of Cr.P.C. statement,

pre-trap proceedings and post-trap proceedings. It is a case

where P.W.1 introduced a new person by name Allu

Sreenivasulu Reddy. According to Ex.P.1, A.O. demanded P.W.1

to pay bribe of Rs.24,000/- to note measurements in M-book

and to take further steps to pay the amount due to P.W.1 and as

he was not willing to pay the amount, he lodged Ex.P.1. The

case of the prosecution even according to the post-trap

proceedings is consistent that during post-trap proceedings

when P.W.1 approached A.O., A.O. demanded him the bribe of

Rs.24,000/- and on such demand he paid the amount to A.O.

So, for the first time, during the course of trial, P.W.1 introduced

a person by name Allu Sreenivasulu Reddy as the person to

whom he gave the amount of Rs.24,000/- during post-trap and

Allu Sreenivasulu Reddy in turn gave the amount to A.O.,

returned to P.W.1 and told him that he gave the amount to A.O.

The prosecution during the course of cross examination of P.W.1

got marked Ex.P.9, Section 161 of Cr.P.C. statement of P.W.1.

22) Coming to the evidence of P.W.2, the prosecution

examined him to speak about the pendency of the official

favour. According to him, previously he worked as

Superintendent in the office of Mandal Praja Parishad

Development, Dornal. He knows A.O., who worked as Assistant

Engineer in their office. At that time L.W.3-T. Hanumantha Rao

was the M.P.D.O. and L.W.4-Venkata Vijayarama Raju was the

work Inspector. In Janmabhoomi Programme two works were

allotted to P.W.1 i.e., laying of cement roads at Inamukkala

village. The work was combined with Food for Work also.

Villagers have to contribute 30%. For the rest of 70% of the

contribution, 50% is the rice and 20% by way of cash.

Contribution of 30% of the work was sent by way of Demand

Draft by the villagers to the M.P.D.O. By the date of trap one

work was completed and other work was under process. A.O.

used to record the measurements in M-books which will be

checked measured by the Deputy Executive Engineer. A.O. has

to prepare the bills and send the same to the M.P.D.O. for

passing and payment. A.O. wrote the measurements in M-books

Ex.P.8 and Ex.P.7. Bills were issued for the work done by P.W.1

and measurements recorded by A.O., P.W.1 has to get the

remaining balance.

23) Coming to the evidence of P.W.3, he deposed about

the work allotted to P.W.1 and the draft sent to by P.W.1 and

the administrative sanction order granted by District Collector to

P.W.1. A.O. was the supervising authority of those works. He

(P.W.3) issued work orders to P.W.1 who is the donor. They

passed the bills for the work done by P.W.1 as per the

measurements recorded by A.O. in M-books and counter signed

by D.E. They paid Rs.1,08,924/- for the first work and

Rs.75,090/- for the second work. They issued rice for 16 tons

for both the works to P.W.1. P.W.1 has to get Rs.32,150/- for

those two works. In Ex.P.2 and Ex.P.3 bills he signed. He also

signed in Ex.P.7 and Ex.P.8 M-books and Ex.P.4 and Ex.P.5 bill

payment pass orders. Final bills were not sent to him and he

does not know whether there were prepared or not. As the final

bills were not prepared, he is of the view that the work was not

completed. Learned Special Public Prosecutor cross examined

P.W.3, as he did not support the case of the prosecution on

certain aspects and during cross examination he denied that he

stated to Inspector, ACB as in Ex.P.11 and that he is deposing

false.

24) Turing to the testimony of P.W.4, he supported the

case of the prosecution. According to him, he issued technical

sanction order under Ex.P.12. Those works have to be done by

P.W.1 under the supervision of A.O. and he (P.W.4) has to check

measure the measurements recorded in Ex.P.7 and Ex.P.8.

After his check measurements, A.O. has to prepare the bills and

then send to M.P.D.O. for payment. A.O. did not prepare final

bill for the first work. P.W.1 completed both the works. Only on

recording the measurements by A.O., he has to check measure

the final bills works.

25) Firstly, I would like to deal with as to whether the

above evidence on record proves the fact that the official favour

in respect of processing of the bills relating to P.W.1 with regard

to the contract work attended by him was pending with A.O.

prior to the date of trap and on the date of trap. As seen from

Ex.P.1, it is the report lodged by P.W.1 setting the criminal law

in motion alleging that A.O. demanded him to pay bribe of

Rs.24,000/- which is 6% for the total amount of the work as

bribe to process his bills. According to Ex.P.1, P.W.1 had to

receive 50% as money and 50% of rice and labour charges. He

mentioned in Ex.P.1 with regard to receipt of amounts and rice,

etc., which were received by him prior to the date of Ex.P.1.

The substance of his allegation is that with regard to the rest of

the amount due to him and further rest of the rice which was to

be supplied to him towards labour, A.O. demanded him on

23.03.2002 to pay the said amount of Rs.24,000/- being 6% of

the total value.

26) As pointed out, P.W.1 deposed about the work

entrusted to him. He did not support the case of the prosecution

in accordance with Ex.P.1. On the other hand, he deviated from

the case of the prosecution and wholly introduced new facts for

the first time at the time of his chief examination as if during the

first week of December, as he was suffering with Jaundice, he

handed over the work to his younger brother Allu Sreenivasulu

Reddy (L.W.13) and completed the work by March, 2002 and

that Allu Sreenivasulu Reddy requested money to do the work

and he could not pay the amount, as such, Sreenivasulu Reddy

borrowed the amount from A.O. etc. So, not only he deviated

from Ex.P.1 but also omitted to speak certain facts in

accordance with Ex.P.1. After he was declared as hostile at the

instance of the Special Public Prosecutor, he deposed in cross

examination that he was not in the habit of filing any false

reports against anybody and any report given by him would

contain only the true facts. He admitted that for the work

attended by him, he received cheques for Rs.38,000/-,

Rs.1,02,000/- and Rs.40,000/- in the months of January,

February and March, 2002. He received 10 tons of rice in

January and 10 tons of rice in March, 2002. Ultimately, he was

due for Rs.20,000/- and 19 tons of rice from the Government.

He admitted that A.O. has to write M-books and prepare bills of

above works. He admitted about the contents of Ex.P.1 to the

effect that on 23.03.2002 when he approached A.O. at his house

at Dornala with regard to the balance of rice and cash, A.O.

demanded him bribe of Rs.24,000/- @ 6%. Virtually, he

admitted the contents of Ex.P.1. According to him, he was not

in the habit of filing any false reports, but the reports of him

would contain the true facts. He denied during the cross

examination that he stated before Inspector of ACB as in Ex.P.9,

Section 161 of Cr.P.C. statement. Ex.P.9 is proved during the

evidence of P.W.8, the trap laying officer. It is a case where

P.W.1 deliberately did not support the case of the prosecution

knowing fully well that Ex.P.1 would contain only the true facts,

etc.

27) There is no dispute from the cross examination of

P.W.1 with regard to Ex.P.2 to Ex.P.8. Virtually these documents

were marked through the examination of P.W.1 by the Special

Public Prosecutor. Apart from this, there is evidence of P.W.5

and P.W.6-the mahazar witnesses, P.W.8-the trap laying officer

and P.W.9-the Inspector of ACB, with regard to the seizure of

these documents from the custody of A.O. during post-trap

proceedings. Apart from this, there is evidence of P.W.2, P.W.3

and P.W.4 with regard to the procedural aspects, whose

evidence is referred to by this Court also. During cross

examination, P.W.2 deposed that after preparation of bill and

sending the same to M.P.D.O., A.O. had nothing to do with

regard to the payment of bill amount or rice to the contractor.

As per Ex.P.7, the M-book with regard to CC road from

Kasireddy house to Ramalayam, A.O. prepared final bill on

16.02.2002 and sent it to MPDO. For the same work part bill

was submitted on 10.01.2002. The first bill was sent by A.O. on

10.01.2002 and second part bill was sent by A.O. on

16.02.2002. Ex.P.3 is the first part bill. Ex.P.2 is the second

part bill. As per Ex.P.8 at page No.17, Rs.40,009/- was paid on

05.03.2002. According to Ex.P.8 at page Nos.18 to 24, A.O.

recorded the measurements with regard to culvert. Till the date

of trap, they were not check measured by D.E. Coming to the

cross examination of P.W.3, he did not support the case of the

prosecution on certain aspects and his hostility towards the case

of the prosecution is proved by virtue of Ex.P.11, Section 161 of

Cr.P.C. statement, which was proved by the evidence of P.W.9,

the Inspector of ACB. As evident from the cross examination of

P.W.3 by the learned defence counsel, A.O. was duty bound to

take measurements in M-books and then he has to get the

measurements checked by D.E. and then to prepare the bill and

send it to him for passing appropriate orders. Unless the work is

checked measured by D.E., A.O. cannot prepare the bill.

28) As evident from the evidence of P.W.4, it is quite

clear that after his check measurements, A.O. has to prepare

the bill and then send it to MPDO for payment. A.O. did not

prepare the final bill for the first work. P.W.1 completed both the

works. Only on recording the measurements by the A.O., he has

to check measure the final bill works. During cross examination,

he deposed that any R.C.C. work including laying of culvert, it

has to be observed for 21 days of curing period to check

measure the same. He does not remember whether P.W.1

informed him that on 12th and 13th of March, 2002 he is laying

R.C.C. slab on the culvert. In Ex.P.8-M-book, A.O. recorded

measurements of laying R.C.C. slab on the culvert, but he did

not put date of laying R.C.C. slab. The said measurements are

recorded in page Nos.18 to 24 of Ex.P.8 by A.O. He did not

check measure those measurements.

29) It is to be noticed that even according to the case of

the prosecution and as evident from Ex.P.1 contents that are

admitted by P.W.1 about 20 days back prior to Ex.P.1, he

completed the cement road in Mukkula Village of Peda Dornala

Mandal from K.G. Road to Ramalayam. The gist of the case of

the prosecution is that A.O. did not make measurements in M-

book and for writing necessary things he demanded P.W.1 to

pay bribe of Rs.24,000/-. The trend of cross examination of

P.W.1 by A.O. goes to mean that as the final work attended by

P.W.1 need curing of three weeks, he could not make

measurements. It is to be noticed that after the trap, A.O.

made a representation to the ACB under the cover of Ex.P.25

setting forth his defence. As evident from Ex.P.25, he

mentioned that P.W.1 constructed slab convert for the road and

it was constructed on 06.03.2002 and 21 days were taken for

curing the said work i.e., till 25.03.2002 and he (P.W.1) had to

pour water for the said slab and contractor poured water till

25.03.2002 and removed the centering and then he went to the

work and took the measurements of the slab culvert. It is

interesting to note that the so-called measurements taken by

A.O. on 25.03.2002 in Ex.P.8 did not disclose that those

measurements were made on 25.03.2002. There was no date

put up by A.O. with regard to the date of measurements. The

crucial allegation in Ex.P.1 is that on 23.03.2002 when P.W.1

approached A.O to process his bills, he demanded bribe for

making necessary entries in the books and to process the bills.

The act of A.O. in allegedly making measurements on

25.03.2002 as mentioned in Ex.P.25 has no support as Ex.P.8

did not contain the date on which the A.O made such

measurements. All these goes to show that the official favour in

respect of the work of P.W.1 was pending with A.O. as on the

date of trap and prior to the date of trap. No other conclusion

can be possible except the conclusion basing on the evidence

available on record that the prosecution categorically proved the

pendency of the official favour in respect of work of P.W.1 prior

to the date of trap and on the date of trap.

30) Now, another thing that has to be considered by this

Court is as to whether the evidence on record proves the

allegations made against A.O. that on 23.03.2002 and on the

date of trap, A.O. demanded P.W.1 to pay bribe of Rs.24,000/-

and accepted the same for doing official favour. When Ex.P.1

literally runs to the effect that on 23.03.2002 A.O. made such

demand for obvious reasons P.W.1 deposed false against the

case of the prosecution by deviating from the contents of Ex.P.1

and his conduct is quiet apparent from the admissions made by

him in cross examination by the Special Public Prosecutor as

referred to above. He had knowledge about the contents of

Ex.P.1. He had knowledge that he was not in the habit of filing

any false reports. According to him, the report of him would

contain only the true facts. So, with regard to the allegation,

dated 23.03.2002, he did not support the case of the

prosecution. With regard to the allegation on the date of trap

also he did not support the case of the prosecution. For the first

time during his chief examination he brought into picture one

Allu Sreenivasulu Reddy, the so-called brother of him and

consequential things. So, for obvious reasons P.W.1 purposefully

deposed false for which there was a finding by the Court below

to prosecute P.W.1 for perjury. Therefore, the evidence of P.W.1

did not support the case of the prosecution with regard to the

allegations of demand of bribe prior to the date of trap and on

the date of trap.

31) Now, this Court would like to deal with the citations

relied upon by the learned counsel for the appellant.

32) In P. Satyanarayana Murthy's case (6 supra), the

Hon'ble Supreme Court held that mere acceptance of any

amount allegedly by way of illegal gratification or recovery of

thereof, dehors the proof of demand, ipso facto, reiterated,

would not be sufficient to bring home the charge. The Hon'ble

Supreme Court looked into the aspect in the above said decision

that the evidence of other witnesses was not sufficient to prove

the demand though recovery was proved and extended benefit

of doubt.

33) Turning to N. Vijayakumar's case (3 supra), the

Hon'ble Supreme Court held that mere recovery of tainted

money in the absence of proof of demand and acceptance

cannot be said to be sufficient to convict the accused under

Sections 7 and 13(2) and 13(1)(d) of P.C. Act. It was a case

also where there was a delay in conducting phenolphthalein test

to the hand fingers of the accused. It was a case where the

judgment of acquittal was reversed by the High Court of Madras

and while holding so, the Hon'ble Supreme Court set aside the

judgment of the High Court.

34) Turning to B. Jayaraj's case (4 supra), it was a case

where the demand of illegal gratification was not proved, as

such, the Hon'ble Supreme Court reversed the judgment of the

High Court in affirming the conviction recorded by the ACB

Court. It is a case where the complainant turned hostile to the

case of the prosecution.

35) Turing to N. Sunkanna's case (5 supra) also the

allegations of demand were not proved and the Hon'ble

Supreme Court reversed the judgment of the High Court of

Andhra Pradesh in affirming the conviction and sentence. So, by

the contention of the appellant by relying on the above said

decision is that as the complainant did not support the case of

the prosecution, there is no convincing evidence to prove the

demand and acceptance of bribe by A.O.

36) At this juncture, it is pertinent to look into a decision

of the Hon'ble Supreme Court in Neeraj Dutta v. State

(Government of NCT of Delhi)7 in Criminal Appeal No.1669 of

2009, which is a Constitutional Bench decision. In fact, Three

Judge Bench of the Hon'ble Supreme Court referred the question

of law framed to be decided by a Bench of appropriate strength.

Therefore, the matter was referred to the Constitutional Bench

to see as to whether there was any conflict between B. Jayaraj's

case (4 supra) and P. Satyanarayana Murthy's case (6 supra)

and M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691,

regarding the nature and quality of proof when the primary

evidence of the complainant is unavailable. The Hon'ble

Supreme Court i.e., Constitutional Bench elaborately dealt with

the above three decisions and held that in case of B. Jayaraj's

case (4 supra), the complainant did not support the case of the

prosecution. In P. Satyanarayana Murthy's case (6 supra), the

complainant had died prior to letting in his evidence in the case.

In M. Narsinga Rao vs. State of A.P., the question was where a

legal presumption could be based on a factual presumption.

Ultimately, the Hon'ble Supreme Court issued series of

clarifications and one of the clarifications which is appropriate to

7 (2022) SCC OnLine SC 1724

refer here is that proof of demand and acceptance of illegal

gratification by a public servant as a fact in issue by the

prosecution is a sin qua non in order to establish the guilt of the

Public servant, under Sections 7 and 13(1)(d) r/w 13(2) and

further Section 20 of Prevention of Corruption Act, 1988 and

further in the event that the complainant turned hostile or has

died or is unavailable to let in his evidence during the trial,

demand of illegal gratification can be proved by letting of any

other evidence in the evidence of any other witness either orally

or by documentary evidence or the prosecution can prove the

case by circumstantial evidence. The trial does not abate nor

does it result in an order of acquittal of the accused public

servant. Further on the proof of the fact in issue, Section 20

mandates the Court to raise a presumption that the illegal

gratification was for the purpose of a motive or reward as

mentioned in the said Section. Therefore, the decision in Neeraj

Dutta's case (7 supra) is a Constitutional Bench decision which

elaborately dealt with that though the complainant turned

hostile, the prosecution can prove the case by relying upon the

circumstantial evidence also.

37) Keeping in view, now, I would like to deal with as to

whether as P.W.1 turned hostile to the case of the prosecution

as to whether the other evidence available on record would

prove the guilt against the A.O.

38) The crucial document with regard to post-trap

proceedings is that of Ex.P.20, mediators report No.2. Firstly, I

would like to look into Ex.P.20 to know about the case of the

prosecution as to the manner of the recovery of the amount

from the A.O. According to it, after completion of the pre-trap

proceedings, the DSP along with mediators, P.W.1 and other

staff reached to the office of A.O. According to pre-trap

proceedings, Ex.P.14 the particulars of the currency notes which

were proposed to be given to A.O. as bribe were noted and the

amount was applied with phenolphthalein powder and the

amount was kept in the shirt pocket of P.W.1 with directions to

delivery to A.O. on further demand only. According to Ex.P.20,

the complainant proceeded by walk towards MPDO office. At

11-40 a.m., the ACB party received pre-arranged signal. Then

they reached to MPDO Office by 11-45 a.m., and complainant

was found standing in front of MPDO office in the open place.

Then, the DSP asked him to wait at some distance. Later, they

entered into north western room and where A.O. was found.

The DSP disclosed his identity and introduced the mediators and

ACB officials to the A.O. A.O. was found shacking. A.O. revealed

his identity. The chemical tests conducted to right hand fingers

of A.O. yielded positive results. The chemical solution to the left

hand fingers yielded negative results. Then, the A.O. questioned

the DSP as to what happened before their arrival for which A.O.

replied that Allu Subba Reddy executed two road works under

Janmabhoomi Programme and he came and repaid the loan

taken by him. The DSP asked A.O. as to whether he has any

evidence like promissory note or witness for the said loan for

which A.O. replied that he has no evidence. It further discloses

that later DSP called the complainant and confronted with the

version of A.O. for which the complainant stated that on further

demand by A.O only, he paid the bribe and he denied the

version of A.O. So, according to the case of the prosecution, the

ACB party recovered the tainted amount from the possession of

A.O.

39) The prosecution examined P.W.5 and P.W.6-the

mediators, P.W.8-the trap laying officer and P.W.9-ACB

Inspector to prove the recovery of tainted amount from the

possession of A.O. as shown in Ex.P.20. P.W.5, P.W.6 and P.W.8

categorically spoken about the pre-trap events to the effect that

the complainant brought the proposed bribe of Rs.24,000/- and

mediators explained to P.W.1 about the contents of his report

and further the Constable applied phenolphthalein powder to the

tainted amount and it was kept in the shirt pocket of P.W.1 with

directions to pay the amount to A.O. only on further demand.

They have further spoken about the fact that during the post-

trap proceedings having received pre-arranged signal, they

rushed into the office of A.O. and during post-trap the amount

was recovered from the possession of A.O. There is no dispute

about the recovery of the tainted amount from A.O.

40) As pointed out by this Court, A.O. dealt with tainted

amount in view of Ex.P.20-post-trap proceedings. His version

before investigating officer was that P.W.1 repaid the loan

amount taken by him from him. According to Ex.P.20, when the

investigating officer confronted with P.W.1 about the version of

A.O., P.W.1 denied the same. As pointed out, P.W.1 introduced

the role of one Allu Sreenivasulu Reddy, the so-called brother.

His evidence is contradicted by Ex.P.20. The above defence of

the accused is nothing but false.

41) It is to be noticed that having supported the case of

the prosecution on crucial aspects, for obvious reasons, P.W.5

one of the mediators, faced the cross examination from the

Special Public Prosecutor because he omitted to speak certain

events. During the course of chief examination with regard to

the post-trap events, he deposed that along with P.W.1 another

person was present in the verandah. P.W.5 deposed such an

answer absolutely so as to probabalize the defence theory that

P.W.1 handed over the amount to his brother Allu Sreenivasulu

Reddy. Hence, P.W.5 was also declared as hostile and during

cross examination, he admitted that in Ex.P.20, he wrote that

after receiving signal, they all went there and found P.W.1

standing in front of MPDO office and there is no mention in

Ex.P.20 that A.O. was also along with P.W.1. He explained that

in wrong sequence due to long lapse of time and due to

confusion he deposed that another person was present along

with P.W.1, but, in fact, P.W.1 was alone present at the outside

of MPDO office. So, the prosecution nullified his evidence which

he deposed deviating from the contents of Ex.P.20, mediators

report. Apart from this, after cross examination of P.W.5 by the

learned defence counsel, the learned Special Public Prosecutor

further cross examined him. For obvious reasons, P.W.5

deposed in cross examination that when DSP asked to A.O. to

produce the proof with regard to the loan borrowed by him from

P.W.1, A.O. produced a document written by Allu Sreenivasulu

Reddy, but DSP refused to receive it. The above answer of

P.W.5 was also deviating from Ex.P.20 for the reasons best

known to him. In cross examination by the Special Public

Prosecutor further he admitted that it is true that when the

events were going on he wrote Ex.P.20. He did not write it

anybodies dictation. He wrote the exact things that were

occurred in his presence. A.O. did not show any proof of loan

from P.W.1 or Allu Sreenivasulu Reddy. Due to confusion, he

stated in his cross examination like that by the defence counsel.

A.O. did not produce any document relating to hand loan taken

from Allu Sreenivasulu Reddy. The deliberate effort made by

P.W.5 for obvious reasons to introduce new facts deviating from

Ex.P.20 was nullified by prosecution by getting necessary cross

examination.

42) Now, coming to the evidence of P.W.6 he stick on to

the case of the prosecution in chief examination. During course

of cross examination of P.W.6, he denied that true version of

A.O. in the post-trap proceedings was not recorded. Even

P.W.8, the trap laying officer, denied that true version of A.O. in

the post-trap proceedings was not recorded. It is interesting to

note that if really P.W.1 handed over the amount to Allu

Sreenivasulu Reddy during post-trap, it is for P.W.1 to explain

as to how Allu Sreenivasulu Reddy was present at the office of

A.O. during the post-trap proceedings. It is not the evidence of

P.W.1 that Allu Sreenivasulu Reddy was also present at the time

of pre-trap. P.W.8, the investigating officer, was not cross

examined as to the presence of Allu Sreenivasulu Reddy at the

time of post-trap proceedings. So, it is a case where P.W.1

deliberately introduced the name of Allu Sreenivasulu Reddy as

the person to whom he handed over the tainted amount who in

turn handed over the tainted amount to A.O. It is to be noticed

that by virtue of self-styled explanation under Ex.P.25,

investigating officer examined Allu Sreenivasulu Reddy to

disprove the allegations in Ex.P.25, but, the prosecution could

not examine him as his whereabouts were not known. The

investigating officer examined Allu Sreenivasulu Reddy to

negative the contents in Ex.P.25. However, A.O. for obvious

reasons best known to him though Allu Sreenivasulu Reddy was

said to be of his brother did not choose to examine him in

support of his defence.

43) Coming to the cross examination of P.W.5, P.W.6

and P.W.8 by A.O., they denied that the true version of A.O. was

not recorded in Ex.P.20 post-trap proceedings. It is to be

noticed that the so-called version of A.O. in Ex.P.20 was that

P.W.1 repaid the amount which he taken as hand loan to him

and the tainted amount was nothing but the loan amount repaid

by P.W.1. A.O. changed his defence during the course of trial

and by winning over P.W.1 and got the name of Allu

Sreenivasulu Reddy and set forth a defence that the amount

which he received was from Allu Sreenivasulu Reddy, but not

from P.W.1. He miserably failed to probabalize the presence of

Allu Sreenivasulu Reddy during post-trap proceedings. If it is

the case, defence of the A.O. consistently during the course of

trial that he received the amount from the complainant towards

discharge of hand loan borrowed by the complainant from him,

he had to prove a lot as to how he lent such an amount to the

complainant without there being any proof and as how he is

morally right in lending amount to P.W.1 who was a contractor

and whose work he has to monitor in terms of quality, etc. So,

to escape from that, he introduced Allu Sreenivasulu Reddy.

P.W.1 as pointed out deliberately deposed false. Through his

examination, A.O. got marked Ex.D.1 which was the so-called

receipt issued by A.O. to Allu Sreenivasulu Reddy acknowledging

the so-called borrowing of the amount. It is interesting to note

that in Ex.P.25 self-styled explanation, A.O. did not whisper

about the existence of Ex.D.1 document. So, all these go to

show that A.O. purposefully introduced Ex.D.1 as an

afterthought and got marked through the cross examination of

P.W.1. No reliance can be placed upon Ex.D.1.

44) P.W.5, P.W.6, P.W.8 and P.W.9 were the witnesses

with regard to the version of P.W.1 during post-trap

proceedings. According to Ex.P.20 P.W.1 denied the version of

A.O. during post-trap proceedings. According to the case of the

prosecution, when investigating officer asked A.O. to file proof

regarding the amount which he lent to P.W.1, he answered that

he did not have any such proof. So, it is a case where for the

first time, A.O. set up a defence that he lent the amount to Allu

Sreenivasulu Reddy which he miserably failed to probabalize.

The recovery of the tainted amount from the A.O. by the trap

party is not in dispute. In an earliest point of time during post-

trap, A.O. stated before P.W.8 that P.W.1 repaid the amount

which he borrowed from A.O., but he did not explain any proof

during post-trap. As this Court already pointed out official favour

in respect of the work of P.W.1 was pending with A.O., prior to

the trap and on the date of trap. For obvious reasons, A.O. did

not put the date in Ex.P.8 to show on which date he made

measurements in M-book. All these mean that there was no

question of Allu Sreenivasulu Reddy paying the amount to A.O.

when his presence was not at all established during the post-

trap. Basing on the facts proved, the only conclusion that can

be arrived at safely is that in pursuance of demand for bribe

prior to the date of trap and on the date of trap only, the A.O.

accepted the bribe amount during post-trap proceedings from

P.W.1. It is quietly safe to come to such a conclusion. Though

P.W.1 did not support the case of the prosecution literally for

obvious reasons, but various circumstances referred to by this

Court and the evidence on record would prove the allegations of

demand of bribe prior to the date of trap and on the date of

trap.

45) In my considered view, the learned Special Judge

rightly appreciated the evidence on record and with proper

reasons found the A.O. guilty for the charges under Sections 7

and 13(2) r/w 13(1)(d) of P.C. Act.

46) The evidence on record warrants this Court to give

finding that A.O. accepted the tainted amount from P.W.1 during

post-trap proceedings pursuant to the demand only. The

presumption is available to the case of the prosecution under

Section 20 of the P.C. Act that A.O. accepted the amount for

doing official favour. As pointed out, prosecution has

categorically proved the pendency of the official favour. The

Hon'ble Supreme Court in Neeraj Dutta's case (7 supra) clearly

held that when the fact in issue is proved, the prosecution is

entitled to have the presumption under Section 20 of the Act.

47) Section 20 of the 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 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.

48) Therefore, in a prosecution under Section 7 of the

P.C. Act, prosecution has the benefit of presumption under

Section 20 of the Act. The loan recovery theory projected by

A.O. during post-trap proceedings proved to be false as he did

not stick on to the same during the course of trial. His defence

that he accepted amount from Allu Sreenivasulu Reddy proved

to be false and it cannot stand to any reason. Hence, A.O.

miserably failed to rebut the presumption under Section 20 of

the Act.

49) Viewing from any angle, I do not find any reason to

interfere with the judgment, dated 06.08.2007 of the learned

Special Judge, as such, the Criminal Appeal is liable to be