Unknown vs 2.1999 To 09.06.1999. He Is A ...
2023 Latest Caselaw 547 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

               CRIMINAL APPEAL No.898 OF 2007

JUDGMENT:

This Criminal Appeal, under Section 378(3) and (1) of the

Code of Criminal Procedure, 1973 (for short, ‗the Cr.P.C'), is filed

by the State, being represented by Inspector of Police, Anti

Corruption Bureau (ACB), Eluru Range, Eluru questioning the

judgment in Calendar Case No.20 of 2000, dated 29.11.2005, on

the file of the Court of Special Judge for SPE and ACB Cases,

Vijayawada (for short, ‗the Special Judge'), where under the

learned Special Judge acquitted the accused of the charges under

Sections 7 and 13(2) R/w. 13(1)(d) of the Prevention of the

Corruption Act, 1988 (for short, ‗the PC Act').

2. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The State, represented by Inspector of Police, Eluru Range,

Eluru filed the charge sheet in Crime No.9/ACB-RC(T)-EWG/99 of

ACB, Eluru Range alleging the offences under Sections 7 and 13(2)

R/w. 13(1)(d) of the PC Act. The case of the prosecution, in brief,

according to the charge sheet averments, is as follows:

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The Accused Officer (AO), Kadiyam Jaya Raju, worked as

Assistant Engineer, Rural Water Supply, Panchayat Raj

Department, Jeelugumilli Mandal, West Godavari District from

01.02.1999 to 09.06.1999. He is a public servant within the

meaning of Section 2(c) of the PC Act. LW.1 - Sri Vendra Rajendra

Babu, farmer, has an extent of Ac.5.00 cents of agricultural dry

land. A sum of Rs.40,000/- was sanctioned to LW.1 by B.C.

Corporation towards execution of Dug-cum-Borewell. Accordingly,

a cheque was issued. LW.1 was advised to start the work by the by

the Accused Officer. He completed the work of drilling in the

month of April, 1999 and approached the AO, who demanded 10%

of the cheque amount of Rs.40,000/- i.e., Rs.4,000/- as illegal

gratification to do official favour of recording the works executed

by him in the Measurements Book and to recommend the final

bill. When the de-facto complainant expressed his inability to pay

the said amount, AO refused to do the official favour in recording

the measurements in the M-book and to recommend for the final

bill. Ultimately, AO gave first payment of Rs.20,500/- with a

condition to pay the demanded bribe amount in the final bill. The

de-facto complainant completed the second stage of work in May,

1999 for which AO had to recommend the final bill. Then, AO

demanded Rs.4,000/- bribe for recording measurements in M-

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book. LW.1 approached the AO on 07.06.1999 with a request to

complete his work. Having demanded Rs.4,000/-, he finally

reduced the bribe amount to Rs.3,500/-. Though LW.1 was not

having any intention to pay the bribe amount but as there was no

other go, he approached LW.6 - T. Bapa Rao, Deputy

Superintendent of Police, ACB, Eluru Range on 08.06.1999 and

presented a report which was registered by him and a trap was

laid against the AO. AO was successfully trapped in his office on

10.06.1999 at about 08:45 a.m. when he demanded and accepted

the bribe amount of Rs.3,500/- from LW.1. The sodium Carbonate

Solution test was conducted on the right hand fingers of AO,

which proved positive. The tainted amount was recovered from the

right side pant pocket of AO and the inner linings of the pant of

AO were also subjected to the chemical test which gave positive

result. Accordingly, post trap proceedings were recorded. The

Government of Andhra Pradesh being the competent authority

removed the AO, accorded sanction to prosecute the AO vide

G.O.Ms.No.76, Panchayat Raj and Rural Development

Department, dated 03.03.2000. Hence, the charge sheet.

4. On appearance of the AO before the Court below and after

completing the necessary formalities under Section 207 Cr.P.C,

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the learned Special Judge examined him under Section 239 Cr.P.C

and for which he denied the allegations as such the charges under

Sections 7 and 13(2) R/w.13(1)(d) of the PC Act were framed and

explained to the AO in Telugu for which he pleaded not guilty and

claimed to be tried.

5. The prosecution, during the course of trial, got examined

PWs.1 to 6 and got marked Exs.P-1 to P-16 and MOs.1 to 7.

6. After closure of the evidence of the prosecution, AO was

examined under Section 313 Cr.P.C, for which he denied the

incriminating circumstances and filed his written statement

contending in substance that he never demanded and accepted

any bribe amount from PW.2. PW.2 did not execute the second

stage of work till the date of trap. PW.2 never insisted him to

prepare the bill prior to the trap. He informed to PW.2 that unless

the work is executed, it is not possible to prepare the bill. On the

date of trap at 08:45 a.m. while he was going for a tea nearby

hotel, PW.2 joined him and at that time P. Sudheer of

Jangareddygudem was also present with some others and at the

hotel, PW.2 informed him that he could not execute the second

stage work because of the financial problems and then he took out

some amount and gave it to AO representing that Raghava Reddy

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sent Rs.3,500/- towards repayment of hand loan obtained him. As

Raghava Reddy was due of the said amount to him, he thought

that he sent the amount through PW.2 and took the same, kept it

in his pant pocket. Then, PW.2 went away. It was witnessed by

Sudheer and at that time ACB officials came and on enquiry by

the DSP, he stated as above. He was un-necessarily made a

scapegoat in this case by PW.2.

7. The AO in furtherance of his defence theory got examined

DWs.1 and 2. In fact he got marked Exs.X-1 and X-2 during the

cross-examination of PW.1.

8. The learned Special Judge, on hearing both sides and after

considering the oral and documentary evidence on record, found

the Accused Officer not guilty of the charges and accordingly

acquitted him under Section 248(1) Cr.P.C and further gave proper

findings to prosecute PW.2 for perjury as he did not support the

case of the prosecution.

9. The State being aggrieved of the judgment impugned, filed

the present Criminal Appeal.

10. Now, in deciding this Criminal Appeal, the point for

determination is as to whether the judgment in C.C. No.20 of

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2000, dated 29.11.2005, on the file of the Court of Special Judge

for SPE & ACB Cases, Vijayawada is sustainable under law and

facts and whether there are any grounds to interfere with the

same?

11. Smt. A. Gayathri Reddy, learned Standing Counsel for ACB-

cum-Special Public Prosecutor, would contend that insofar as the

pendency of the official favour before AO relating to the work of

PW.2, the learned Special Judge gave an erroneous finding. He did

not appreciate the evidence of PWs.1 and 2 in proper perspective.

The learned Special Judge misinterpreted Exs.X-1 and X-2. PW.2

categorically testified that he completed the second phase of work

in June, 1999 i.e., prior to his approaching the ACB. In spite of the

fact that there is sufficient evidence to prove that official favour

relating to PW.2 was pending with AO, the learned Special Judge

acquitted the accused which is not tenable. PW.1 has spoken

regarding the first phase of work. In fact, she had no knowledge

about the second phase of work. After clearing the first phase bill,

PW.2 completed the second phase of work in June, 1999. Apart

from this, PW.2, for obvious reasons, did not support the case of

the prosecution with regard to the demand made by AO to to pay

the bribe of Rs.4,000/- and subsequent reduction of the same to

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Rs.3,500/-. The tainted amount was recovered from the pant

pocket of AO and as such there arises a presumption under

Section 20 of the PC Act. The AO purposefully examined DWs.1

and 2 and their evidence is not at all believable. In spite of the

convincing evidence before the trial Court, the Court below erred

in acquitting the accused as such the Appeal is liable to be

allowed.

12. Sri A. Hariprasad Reddy, learned counsel for the respondent

(AO), would contend that according to the entries in M-Book, PW.1

confirmed that AO received the amount pertaining to the second

phase of work in December, 1999. So, the entries show that he

could complete the rest of the work in December, 1999 only.

Investigating Officer did not verify as to whether official favour was

pending with AO as on the date of trap or as on the date of alleged

demand by AO to PW.2 to pay the bribe. It is categorically

admitted by the Investigating Officer that he did not look into the

aspect of official favour by physically examining the work to be

done by PW.2. In the absence of pendency of official favour, there

was no question of AO demanding PW.2 to pay the bribe. Apart

from this, the prosecution miserably failed to prove the demand

prior to lodging of report by PW.2 and further the demand on the

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date of trap. PW.2 did not support the case of the prosecution.

One Raghava Reddy informed to PW.2 that AO was demanding

bribe. On the date of trap, PW.2 handed over Rs.3,500/- to AO at

the tea stall stating that Raghavareddy sent that amount which

was due to him as such AO bona-fidely took that amount. It is

supported by the evidence of DW.2. A presumption under Section

20 of the PC Act is not available to the case of the prosecution as

the prosecution did not prove that official favour was pending with

AO as on the date of trap. Even otherwise, it shall stand rebutted

in the absence of proving demand by the prosecution. The learned

Special Judge thoroughly appreciated the evidence on record with

cogent reasons as such there are no grounds to interfere with the

reasoned judgment of the learned Special Judge in acquitting the

AO.

13. In the light of the charges framed against the AO before the

Court below and in the light of the contentions advanced and

looking into the essential ingredients of Sections 7 and 13(2)

R/w.13(1)(d) of PC Act, the following aspects are to be considered:

1) Whether the prosecution has proved the pendency of

official favour of PW.2 before AO as on the date of trap

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and prior to the trap i.e., so called demand made by AO

to PW.2 to pay bribe of Rs.3,500/-?

2) Whether the prosecution has proved before the

Court below that AO demanded and accepted the bribe

of Rs.3,500/- from PW.2 to do official favour?

3) Whether the prosecution has proved the charges, as

above, against the AO beyond reasonable doubt?

14. PW.1 is Mandal Praja Parishad Development Officer and her

evidence in substance is that during the year 1999, LW.1 was

sanctioned the dug-cum-borewell for an estimation of Rs.40,000/-

and further about AO recommending first part of the payment of

the bill for Rs.25,000/- for the work completed by him. She

further deposed that final bill for the work of the complainant for

Rs.19,500/- was not placed before her as on the date of her

examination.

15. Coming to the testimony of PW.2, who is no other than the

de-facto complainant, his evidence in substance is that he

performed part of his work for which he was paid with a sum of

Rs.20,500/- and subsequently he completed the rest of the work

and approached AO for payment of the balance. AO told him that

he would come within two days for inspection. He met the Deputy

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Executive Engineer and informed him about his pending bill. He

told him that he would put a word to AO. Later, he went around

the office of AO but in vain. Then he took the assistance of

Raghava Reddy and approached AO. AO promised that he would

visit the site. Raghava Reddy told him that AO was demanding

Rs.4,000/- for his pending bill clearance. Then, he expressed his

inability. Then, Raghava Reddy advised him to report against AO

to ACB officials for completion of his work at an early date. Then,

he presented Ex.P-7. He further spoke about the pre trap and post

trap proceedings. With regard to the post trap proceedings, his

evidence in substance is that he met the AO in his office and both

of them proceeded to a small hotel situated nearby office of AO

and then they had the tea. Then, he gave amount to AO, who took

the amount with his right hand. Thereafter, he came out and gave

a pre-arranged signal.

16. PW.3 is the then Senior Assistant in the office of Deputy

Director, Social Welfare Department, who acted as a mediator in

the pre trap and post trap proceedings and he spoken to the facts

as per the record.

AVRB,J Crl.A. No.898/2007

17. PW.5 is the then Inspector, ACB, Eluru who assisted the

Deputy Superintendent of Police during the course of Exs.P-10

and P-13 i.e., pre trap and post trap proceedings and he examined

PW.2 and prepared draft final report.

18. PW.6 is the main Investigating Officer i.e., Deputy

Superintendent of Police. He received Ex.P-7 report from PW.2

against AO and laid trap against AO after registration of Ex.P-16

on 09.06.1999 and he spoken to the facts according to the record.

19. Turning to the evidence of DW.1, he is the then Assistant

Engineer, Rural Water Supply, Jeelugumalli. He testified about the

digging of well by PW.2 and that he recorded the measurements in

Ex.X-1. On 04.12.1999 Deputy Executive Engineer checked the

measurements and thereafter he prepared the bill and sent it to

the office of PW.1 on 21.12.1999 for Rs.8,824/- and thereafter a

cheque was issued to PW.2 for Rs.8,824/-.

20. DW.2 was examined by AO to speak about the incident

happened at the tea stall and his evidence is that while he was

taking tea, he observed AO and PW.2 coming there. They had a

tea. Then he asked the AO about the nomination of works and at

that time PW.2 gave Rs.3,500/- to AO stating that it was sent by

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one Raghava Reddy towards repayment of hand loan obtained

from AO. Then AO took the amount and kept it in his pant pocket

and after that PW.2 left. While he (DW.2) and AO were talking to

each other ACB officials came and on enquiry, the AO stated in

similar line as above.

21. Firstly, I would like to deal with the pendency of the so

called official favour relating to the work of PW.2 before the AO. To

decide the same, it is pertinent to look into the evidence of PW.1.

As pointed out, PW.1 deposed that the final bill for the work of

LW.1 was not placed before her at the time of her examination. It

is to be noticed that through PW.1 in cross-examination, Ex.X-1,

the M-book pertaining to the work carried out by LW.1 and

Ex.X-2, the relevant entry in pass order at Page No.12 of Ex.X-1,

were marked. Ex.P-4 is the bill for Rs.20,500/-. Ex.P-5 is the

proceedings issued by MPDO dated 01.03.1999. Ex.P-6 is the

proceedings of the District Collector, West Godavari at Eluru dated

14.01.1999. During the course of cross-examination, she admitted

that the execution work consists of two stages; first stage is

drilling the bore and second stage is digging the well and fixing the

rigs. She admitted that after execution of the second stage work by

LW.1, AO has to record the measurements and recommend the

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bill. She does not know that as on the date of trap whether the

second stage of execution of the work was carried out or not. She

looked into the M-book and further deposed that the second and

final bill for Rs.8,824/- was given to LW.1 on 28.12.1999. The M-

book is Ex.X-1 and the relevant entry at Page No.7 is Ex.X-2. The

second work executed by LW.1 was check-measured by the

Deputy Executive Engineer on 04.12.1999. The second bill pass

order for Rs.8,824/- was made by her.

22. The learned Special Public Prosecutor examined her by way

re-examination, who deposed that it is not stated by her in the

pass order in Ex.X-2 that the payment was made towards the final

bill. During further cross-examination, she stated that it is stated

at page No.4 of Ex.X-1 as C.C-II final bill. So, in view of the

evidence of PW.1, she was not in a position to say as on the date of

trap and examination of her by the Investigating Officer, as to

whether PW.2 completed the second part of the work or not. It is

through her cross-examination, the learned defence counsel got

marked Exs.X-1 and X-2, which reveals that the second part of the

work was said to be completed in December, 1999. Before PW.1,

the prosecution did not challenge the entries in Exs.X-1 and X-2.

The entries in Exs.X-1 and X-2 were undoubtedly made after

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laying of the trap. It is to be noticed that whether PW.2 completed

the second part of the work prior to the date of trap or as on the

date of trap was a crucial aspect before the Investigating Officer to

decide as to whether official favour was pending with AO or not. As

on the date of trap, he did not look into the said crucial issue.

According to the evidence of PW.2, he completed the work in June,

1999 but it is not at all substantiated in any way. A look at the

evidence of PWs.1 and 2 means that the de-facto complainant

could not complete the second stage of work as on the date of trap.

The entries in Exs.X-1 and X-2 mean that after trap the said work

was completed and in the month of December, 1999 final bill was

paid to PW.2. Apart from this, PW.2, who is the de-facto

complainant did not support the case of the prosecution with

regard to the demand made by AO prior to the trap and on the

date of trap. So, his evidence is not useful to decide the pendency

of the official favour. Though, he claimed that to his remembrance

he completed the work in June, 1999 but the own documents

produced by the prosecution coupled with the admissions made by

PW.1 negatives such a theory. It is to be noticed that PW.5 is the

Inspector, who assisted the Deputy Superintendent of Police

during the course of investigation. He stated in cross-examination

that he has not physically verified whether PW.2 completed the

AVRB,J Crl.A. No.898/2007

digging of borewell as such he does not know whether PW.2

completed the work during December, 1999. Though he was a

proper person to look into the issue but the evidence goes to show

that no investigation was carried out by the Inspector of Police.

Coming to PW.6, who is the Trap Laying Officer, he gave an

answer in cross-examination that he did not verify physically

whether PW.2 completed the work of digging borewell as on the

date of trap. So, both PWs.5 and 6 failed to ascertain the genuinity

in the report lodged by PW.2 by physically verifying as to whether

PW.2 completed his part of work so as to request the AO to check

the measurements and to take steps to process the final bill. The

prosecution, in my considered view, standing on its own legs failed

to prove before the learned Special Judge that official favour in

support of the work of PW.2 was pending before the AO prior to

the date of trap or as on the date of trap.

23. Leave apart the fact that prosecution failed to prove the

above aspect of standing on its own legs, the AO as a part of his

rebuttal examined DW.1, who was a competent person and who

was Assistant Engineer, Rural Water Supply, who stated that

PW.2 dug the well and fixed rigs on 03.12.1999 and he recorded

the same M-book, Ex.X-1. On 04.12.1999 the Deputy Executive

AVRB,J Crl.A. No.898/2007

Engineer, checked the measurements made by him and thereafter

he sent it to PW.1 and later cheque was issued. He denied that

during the course of cross-examination by the learned Special

Public Prosecutor that Ex.X-1 was prepared subsequent to the

trap. It is to be noticed that Exs.X-1 and X-2 are marked through

PW.1, who was the witness for the prosecution. When PW.1

supported the entries by looking into the same, no clarification

was sought for as to whether those entries were genuine or not.

Apart from this, DW.1 is the person who made entries under Ex.X-

1. According to him, the entries in Ex.X-1 were testified by DW.1.

Though the prosecution failed to prove the pendency of the official

favour as on the date of trap and prior to trap but the AO to

discharge his burden examined DW.1, whose evidence is

consistent with the entries in Ex.X-1. To sum up to this extent,

the prosecution failed to prove the pendency of the official favour

before the Court below.

24. Coming to the demand attributed against AO that on

07.06.1999 at 05:00 pm., he demanded PW.2 to pay bribe of

Rs.4,000/- to record measurements in M-book and to process the

final bill, PW.2 did not support the case of the prosecution in this

regard. As it is already pointed out, he never testified on the

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particular day i.e., on 07.06.1999 he met the AO and AO

demanded bribe of Rs.4,000/- and subsequently reduced it to

Rs.3,500/-

25. The prosecution sought to prove the demand attributed

against AO by relying upon the evidence of PW.2 and Ex.P-7. It is

to be noticed that PW.2 testified the payment of first part of the

amount and even in this regard he did not support the case of the

prosecution. So, virtually he did not support his report dated

08.06.1999. So, to this extent it is clear that the prosecution failed

to prove the demand on 07.06.1999 at 05:00 pm as alleged.

26. With regard to the things happened relating to the trap, the

crucial evidence of PW.2, as pointed out, is that he took the

assistance of Raghava Reddy as elder and approached AO and AO

has spoken to visit the site and after that he was told by Raghava

Reddy that AO was demanding Rs.4,000/- for clearing the pending

bill and that he expressed his inability to do so and Raghava

Reddy advised him to approach the ACB officials as such he

lodged Ex.P-7. All these facts are not there in Ex.P-7. So, it is a

case where PW.2 deviated from the contents of Ex.P-7 by not

speaking about the demand dated 07.06.1999 and further the

demand of AO and reduction of bribe amount to Rs.3,500/- etc.

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The learned Special Public Prosecutor got declared PW.2 as hostile

and cross-examined him at length. PW.2 during the course of

cross-examination denied the prosecution theory. Nothing could

be elicited during the course of cross-examination so as to favour

the theory of the prosecution. He stated that the contents in

Ex.P-7 were scribed in the office of Deputy Superintendent of

Police by one of his staff members. So virtually, as PW.2 turned

hostile, there was no evidence, whatsoever, that AO demanded

bribe from PW.2 either at the time of clearance of the first bill or at

the time when PW.2 requested AO to enter the entries in the M-

book with regard to the second part of work to process the bill etc.

27. Now, another aspect to be seen here is that the so called

demand attributed to AO on 10.06.1999 at the time of trap. Even

according to the second incident happened on 10.06.1999 also

PW.2 did not speak that during the post trap AO demanded him to

pay the bribe. His evidence is that he approached the AO and both

of them gone to a tea stall where he handed over Rs.3,500/-. So,

even with regard to the post trap proceedings, dated 10.06.1999,

PW.2 did not speak literally that on further demand by AO, he

handed over a sum of Rs.3,500/- to AO. It is to be noticed that the

defence theory is that one Raghava Reddy was due of Rs.3,500/-

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to AO and at the tea stall PW.2 handed over the said amount to

AO stating that Raghava Reddy sent the amount to him. There is

no dispute that AO dealt with Rs.3,500/- handed over by PW.2 to

him at the tea stall and there is evidence in the form of DW.2 and

further PWs.5 and 6 Investigating Officers and the mediator to

prove this aspect. Further, there is chemical examination test

which reveals when the right hand of AO was subjected to

chemical examination, it resulted into positive. Apart from this,

the inner linings of the right pant of the pocket of AO also yielded

positive result.

28. Now, it is a matter of test to decide as to whether basing on

the fact that AO dealt with the amount handed over by PW.2, a

presumption under Section 20 of the PC Act is liable to be drawn

against AO that he accepted the said amount to do official favour.

Section 20 of the PC Act runs as follows:

―20. Presumption where public servant accepts gratification other than legal remuneration -- (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any

AVRB,J Crl.A. No.898/2007

valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn‖.

29. A close perusal of Section 20 of the PC Act reveals that to get

the presumption raised in favour of the case of the prosecution,

the initial burden is on the prosecution to prove that AO accepted

the bribe amount to do official favour. It is only when the

prosecution has discharged its initial burden then the

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presumption under Section 20 of the PC Act has to be raised.

Apart from this, it is a legal presumption which is rebuttable.

30. In support of the theory, AO examined DW.2, who supported

the theory of the defence stating that PW.2 handed over the

amount of Rs.3,500/- to AO stating that the amount was sent by

Raghava Reddy which was due to him by Raghava Reddy. It is to

be noticed that in this regard PW.2 denied the theory of the AO. It

is a case where he did not support the case of the prosecution

when it comes to theory of the defence, he denied the same. By

virtue of the conduct of PW.2, absolutely, he is not a reliable

witness. So, when PW.2 is not a reliable witness and further when

the evidence on record goes to prove that official favour of him was

not pending with AO either on 07.06.1999 or on 10.06.1999

corroboration is needed to the testimony of PW.2 relating to the

events happened in the post trap. Though the prosecution

employed the mediator to pre trap and post trap proceedings but

the evidence on record goes to prove Investigating Officer never

directed the mediator i.e., PW.3 to follow PW.2 and to observe the

conversation between AO and PW.2. So, the simple presence of

PW.3 in the trap does not mean that he witnessed the

conversation between PW.2 and AO. There is no dispute that

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according to PW.2, he got acquaintance with one Raghava Reddy.

AO set up a defence theory that Raghava Reddy was due of

Rs.3,500/- to him and PW.2 handed over the same stating that

Raghava Reddy sent the amount to discharge the said amount.

The Investigating Officer did not examine Raghava Reddy either

during the course of investigation or during the course of trial. So,

AO made an attempt to discharge his burden so as to rebut the

presumption, if any, under Section 20 of the PC Act. In my

considered view, as the prosecution did not satisfactorily prove

that PW.2 completed the second part of the work prior to the date

of trap or by the date of trap as such official favour was pending

with AO, the presumption, if any, in favour of the prosecution

under Section 20 of the PC Act stands negatived in view of the fact

that no official favour was pending with AO relating to the work of

PW.2 either on 07.06.1999 or on 10.06.1999.

31. The Hon'ble Apex Court in Neeraj Dutta v. State

(Government of NCT of Delhi)1, which is a Larger Bench decision

in view of the reference made by Constitution Bench, dealt with

several issues and gave certain clarifications. The Hon'ble Apex

Court held that in the event the complainant turned hostile or has

1 (2022) SCC OnLine SC 1724

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

illegal gratification can be proved by letting in the evidence of

another witness either orally or by documentary evidence or even

the prosecution can prove the case by circumstantial evidence.

32. In view of the above decision of the Hon'ble Apex Court, this

Court has carefully looked into the evidence on record. DW.1 is

the proper person to speak about the entries in Ex.X-1 and he

categorically testified that PW.2 completed the second part of the

work in December, 1999. These entries were also spoken to by

PW.1, the own witness of the prosecution. So, as the prosecution

miserably failed to prove the official favour, virtually, there would

not have been a demand by AO to PW.2 to pay the bribe amount of

Rs.4,000/- or reduction of the same to Rs.3,500/-. Investigation

suffered with serious lapses as PWs.5 and 6 failed to look into by

going to the place to ascertain as to whether PW.2 completed his

job of work i.e., the second phase of work. Viewing from any angle,

I do not find any convincing material in the form of substantial

evidence to prove that AO demanded PW.2 to pay the bribe of

Rs.4,000/- or further demanded him to pay the reduced amount

of Rs.3,500/- as the case may be.

AVRB,J Crl.A. No.898/2007

33. In my considered view, the learned Special Judge for SPE

and ACB Cases, Vijayawada thoroughly looked into each and every

angle and recorded convincing and tenable reasons to disbelieve

the case of the prosecution. He rightly looked into the conduct of

PW.2 and gave appropriate findings that he is liable for perjury

and accordingly directed that a complaint be made to the learned

Metropolitan Magistrate or a Magistrate of First Class having

jurisdiction against PW.2 for committing the offence under Section

211 IPC in giving false evidence. The impugned judgment of the

learned Special Judge is tenable under law and facts as such I see

no reason to interfere with a well reasoned judgment in recording

an order of acquittal.

34. In the result, the Criminal Appeal is dismissed.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 02.02.2023 DSH