That According To The Judgment In ... vs .
2023 Latest Caselaw 548 AP

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

             CRIMINAL APPEAL NO.940 OF 2007

JUDGMENT:-

      This is a Criminal Appeal filed by the State, being

represented by the Inspector of Police, Anti-Corruption Bureau,

Rajahmundry Range, Rajahmundry, challenging the judgment,

dated 18.04.2007 in C.C.No.67 of 2000, on the file of Special

Judge for SPE & ACB Cases, Visakhapatnam, whereunder the

learned Special Judge, found the Accused Officer ("A.O" for

short) therein not guilty of the charges under Sections 7 and

13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and

acquitted him under Section 248(1) of the Code of Criminal

Procedure ("Cr.P.C." for short).

      2)    The parties to this Criminal Appeal will hereinafter

be referred as described before the trial Court for the sake of

convenience.

      3)    The State i.e., Inspector of Police, Anti-Corruption

Bureau, Rajahmundry Range, filed a charge sheet against the

A.O in Crime No.3/RC-RJY/1999 of A.C.B., Rajahmundry Range,

alleging in substance is as follows:

      (i)   The    defacto-complainant   by    name    Garapati

Venakteswara Rao (L.W.1) is resident of Peravaram Village,
                                    2


Atreyepuram       Mandal,   East   Godavari      District,   who    is    an

agriculturist.   He got three Phase electricity connection to his

residential house.    On 21.02.1999 in the evening at 5-00 P.M.

A.O, who was working as Assistant Lineman in A.P. Transco,

Peravaram,       Atreyapuram   Mandal,     East     Godavari       District,

removed the fuses on the pole pertaining to the said electricity

connection to the house of the defacto-complainant (L.W.1).

Then   the   defacto-complainant       (L.W.1)     met   the   A.O       and

questioned him as to why it was disconnected, A.O intimated to

him that wiring is not good. The defacto-complainant (L.W.1)

requested him to restore the electricity connection, for which

A.O demanded bribe of Rs.500/-. The defacto-complainant

(L.W.1) expressed his inability to pay the same, but the A.O

reiterated his demand. Hence, he agreed to pay the bribe

amount, though he was not willing. Then, he approached L.W.9-

M. Subba Rao, the then Deputy Superintendent of Police, ACB,

Rajahmundry on 25.02.1999 and lodged a written report, which

was registered as a case in Crime No.3/RC-RJY/1999, under

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

Act, 1988. The D.S.P. arranged mediators to trap the A.O.

       (ii) On 25.02.1999 at 5-15 P.M. trap party along with

mediators went to the office of Additional Assistant Engineer,

A.P. Transco, Peravaram and successfully trapped the A.O when
                                  3


he demanded and accepted bribe of Rs.500/- from the defacto-

complainant (L.W.1). The chemical test that was conducted on

the hands of A.O proved to be positive. L.W.9 seized the tainted

amount of Rs.500/- in the presence of mediators.         A.O was

arrested and released on bail by L.W.9. Investigating Officer

obtained sanction order to prosecute the A.O.         Hence, the

charge sheet.

         4)   The learned Special Judge for SPE & ACB Cases,

Visakhapatnam, took the case on file and on appearance of A.O

and after compliance of Section 207 of Cr.P.C., framed charges

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

Corruption Act, 1988 against A.O and explained the same to him

in Telugu, for which he pleaded not guilty and claimed to be

tried.

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

prosecution before the trial Court, examined P.Ws.1 to 4 and got

marked Exs.P.1 to P.10 and M.Os.1 to 6. The prosecution did

not examine the defacto-complainant (L.W.1), as he was expired

by the time when the case was taken up for trial. After closure

of the evidence of the prosecution, 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 he has defence witnesses.
                                    4


      6)     The   Accused     Officer    filed   a   written   statement

contending   in    substance    that     he   never    disconnected   the

electricity service connection of the house of the defacto-

complainant (L.W.1). The defacto-complainant (L.W.1) has three

electricity service connections. One is to the house, another is

to the Poultry farm and third one is to the rice mill. The defacto-

complainant (L.W.1) is a frequent defaulter in payment of

electricity charges and service connections of Poultry farm and

rice mill were listed in the defaulters list basing on the report of

A.O. Hence, the defacto-complainant (L.W.1) developed grouse

against the A.O and lodged a false report. He never demanded

the illegal gratification. In fact, while he was sitting at a bench

along with Sri V. Narasimha Rao, Lineman, A.P. Transco,

Peravaram in the shed situated in front of A.P. Tansco Office, at

about 5-00 P.M. on 25.02.1999 the defacto-complainant (L.W.1)

came there and without disclosing anything suddenly attempted

to thrust currency notes in his shirt pocket. Then he prevented

the said act. The defacto-complainant (L.W.1) caught his right

hand and kept the currency notes in his right hand. When he

resisted to receive the same, the defacto-complainant (L.W.1)

left the shed and moved towards gate. Then he picked up the

same and kept the same on the table and proceeded behind the

defacto-complainant (L.W.1) to call back him to take away the
                                  5


currency notes. Meanwhile, a group of people entered into the

premises of the office and they disclosed that they are ACB

officials. He narrated the incident to the ACB officials, but they

did not consider.

      7)    In furtherance of the defence of A.O, he examined

D.W.1 and got marked Exs.D.1 to D.5.

      8)    The learned Special Judge for SPE & ACB Cases,

Visakhapatnam, on hearing both sides and on considering the

oral as well as documentary evidence, found the A.O not guilty

of the charges framed against him and accordingly, acquitted

him   under Section 248(1) of Cr.P.C.       Felt aggrieved of the

same, the State, represented by the Inspector of Police, ACB,

Rajahmundry Range, filed the present Criminal Appeal, through

the Standing Counsel for ACB and Special Public Prosecutor.

      9)    Now, in deciding this Criminal Appeal, the point that

arises for consideration is as to whether the prosecution before

the trial Court proved the charges under Section 7 and Section

13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against

A.O. and there are any grounds to interfere with the judgment

of acquittal recorded by the trial Court?

POINT:-

      10)   Smt. A. Gayathri Reddy, learned Standing Counsel

for ACB and Special Public Prosecutor, appearing for the State,
                                        6


would contend that by the time the case was taken up for trial,

the defacto-complainant (L.W.1) died, as such, the prosecution

could only examine P.Ws.1 to 3 i.e., the superiors of A.O and

the mediator to the trap and the Investing Officer. P.W.4 was

examined to prove the sanction against the A.O.            The A.O did

not deny the fact that he came into contact with the tainted

amount, as such, his hands yielded positive results. The learned

Special Judge though A.O dealt with the tainted amount, did not

consider the evidence in proper perspective.               Though the

defacto-complainant (L.W.1) was not examined, but the duty of

the trial Court is to look into other circumstances and to

adjudicate as to whether the evidence on record would prove

the demand and acceptance of bribe by the A.O.             The learned

Special Judge did not appreciate the evidence in proper

perspective and recorded an erroneous order of acquittal, as

such, the appeal is liable to be allowed.

         11)        Learned Standing Counsel for ACB would contend

that according to the judgment in the case of K.C. Mangal vs.

State of Rajashtan1, the trial Court can arrive at a conclusion

basing       on      the   evidence   of   other   witnesses   and   the

circumstances to convict the Accused Officer.



1
    AIR 1983 SC-1
                                  7


      12)   Sri A. Hari Prasad Reddy, learned counsel appearing

for the respondent, would contend that it is not the duty of the

A.O to give electricity service connections or to disconnect the

service connections. He was only a Lineman. The nature of

duties to be done by A.O was spoken to by P.W.1. If A.O

disconnected the electricity service connection, the remedy open

to the defacto-complainant (L.W.1) was to bring the same to the

notice of the superior officers. A.O had no power to disconnect

or to restore the electricity connection. Basing on the report of

A.O earlier other two service connections of the defacto-

complainant (L.W.1) were kept under the defaulters list. So, the

defacto-complainant (L.W.1) bore grudge against the A.O and

implicated him falsely.

13) Learned counsel for the respondent would further

contend that with regard to the handling of the tainted amount

by A.O, it is the defence of the A.O. that the defacto-

complainant (L.W.1) thrust the amount in his right hand and it

was fallen on the ground and then A.O picked up and kept it on

the table and chased the defacto-complainant (L.W.1). This

defence theory has support from the answers spoken by P.W.1

in cross examination. He would further contend that absolutely,

there is no evidence to prove the demand and acceptance of

bribe and the defence theory is probable and no official favour

was pending before A.O in respect of the defacto-complainant

(L.W.1) and the reasoned judgment of the trial Court is not

liable to be interfered.

14) At the outset, this Court would like to make it clear

that there is no dispute that A.O was a public servant within the

meaning of Section 2(C) of the Prevention of Corruption Act,

1988 (Central Act 49 of 1988). Apart from this, prosecution

examined P.W.4 and got marked Ex.P.10, sanction order and

the trial Court found favour in respect of point Nos.1 and 2 that

A.O was a public servant and there was a valid sanction. Those

findings are not in challenge. So, at the outset, this Court is of

the considered view that A.O was a public servant within the

meaning of Section 2(C) of the Prevention of Corruption Act,

1988 and further there was a valid sanction under Ex.P.10 to

prosecute the A.O for the offence alleged against him.

15) In deciding this appeal another crucial aspect to be

considered here is as to whether on 21.02.1999 A.O removed

fuses on the pole pertaining to electricity service connection of

the defacto-complainant (L.W.1) and to restore the same

whether he demanded bribe of Rs.500/- on that day and further

demanded and accepted bribe on 25.02.1999 as alleged by the

prosecution.

16) There is no dispute that the defacto-complainant

(L.W.1) died and he could not be examined. Prosecution

examined P.Ws.1 to 4. P.W.1 was the Sub Engineer in A.P.

Trasnco, Peravaram. His evidence is that on 25.02.1999 he was

in the office at 5-15 P.M., ACB officials came there and trapped

the A.O in the presence of mediators. He supplied Ex.P.1,

attendance register and Ex.P.2, fuse of call register for the year

1999 to the ACB at their request. He is not an eye witness to

the incident of demanding and accepting bribe amount by A.O.

17) Turning to the evidence of P.W.2, who was a trap

mediator. He was the then Senior Assistant in Assistant

Commissioner's Office, Rajahmundry. He acted as mediator in

pre-trap and post-trap proceedings along with L.W.6-P. Ananda

Kumar. He prepared pre-trap proceedings under Ex.P.4 and

post-trap proceedings under Ex.P.6 and Ex.P.7 mediators report.

He testified about the demonstration of chemical test in the

office of Investigating Officer and applying of the phenopthelene

powder to the currency notes produced by the defacto-

complainant (L.W.1). He further testified about recording of the

statement of the defacto-complainant (L.W.1) at the place of

trap and preparation of the post-trap proceedings under Ex.P.6

and seizure of M.O.5, tainted amount. He further testified that

both hands fingers of A.O proved positive results.

18) Coming to the evidence of P.W.3, the ACB Dy.S.P.,

he spoken about receiving written complaint i.e., Ex.P.8 from

the defacto-complainant (L.W.1), registration of F.I.R. under

Ex.P.9 and forwarding of the same and further collection of the

mediators and things happened in the pre-trap. He further

testified that the events that were happened in the post-trap

and recovery of the amount i.e., M.O.5. He spoken about

obtaining of sanction order also.

19) The A.O got examined D.W.1, who deposed in

substance that he brought Exs.D.1 to D.5, which are the lists of

the defaulters in respect of the electricity service connections.

He deposed that the defacto-complainant (L.W.1) had three

service connections, out of which, one was to the residential

house, another was to the Poultry Farm and third one was in the

name of his father. Through his cross examination, Exs.D.1 to

D.5, defaulters list was marked.

20) During the course of cross examination, P.W.1

deposed certain aspects and it is pertinent to look into the

same. As seen from the cross examination part of P.W.1, the

working hours of A.O were 8-00 A.M. to 8-00 P.M. He used to

attend during the nights also. The A.O and another Lineman

have to attend the complaints lodged by the parties. The

defacto-complainant (L.W.1) did not give any complaint to him

alleging that his house service connection was disconnected by

A.O. Even, he did not lodge any complaint against A.O to his

superior officers. Even after the trap, neither complainant nor

the ACB requested to restore the service connection of the

complainant. The complainant had a rice mill and Poultry Farm.

The service connection, which is found in the defaulters list, has

to be disconnected by a Lineman. The complainant was a

frequent defaulter in paying charges and his name was found in

the defaulters list. Before the ACB officials entered inside his

office room, A.O and V. Narasimha Rao were present. On

hearing cries, he saw through the window of his office room and

found the complainant (L.W.1), G. Venkateswara Rao moving

ahead and the A.O was following him and in the meantime,

some more persons from the outside intercepted the

complainant (L.W.1) and A.O and brought the complainant

(L.W.1) and A.O inside the shed.

21) As seen from the cross examination part, A.O has no

power to give service connection once it was disconnected.

Apart from this, there is no dispute that the defacto-complainant

(L.W.1) was shown as a defaulter by virtue of the evidence of

D.W.1 coupled with Exs.D.1 to D.5. So, virtually, there is no

evidence to show that A.O highhandedly without there being any

authorization whatsoever from P.W.1, disconnected the

electricity service connection to the house of the defacto-

complainant (L.W.1). The contents in Ex.P.8, the report of the

defacto-complainant (L.W.1), cannot be read in substance

evidence as he died. Prosecution did not examine anybody to

speak about the contents of Ex.P.8. So, virtually, there is no

evidence to show that it was the A.O who disconnected the

electricity service connection to the house of the defacto-

complainant (L.W.1). On the other hand, according to the

evidence of P.W.1 in cross examination, Linemen would

disconnect the electricity service connection by looking into the

defaulters list. So, virtually, there was no evidence before the

trial Court to prove that A.O disconnected the service connection

to the house of the defacto-complainant (L.W.1).

22) Apart from this, as evident from the nature of duties

to be done by A.O, virtually, A.O had no power whatsoever to

restore the service connection to the house of the defacto-

complainant (L.W.1) without there being any instructions from

his superior officers. Absolutely, there is no possibility or

probability to A.O to do such things. In my considered view, the

evidence is lacking that A.O was capable of restoring the service

connection to the house of the defacto-complainant (L.W.1) on

his own without getting any instructions from the superiors. In

my considered view, the prosecution did not establish any

positive things in this regard to show that official favour was

pending with A.O in respect of the restoration of service

connection to the house of the defacto-complainant (L.W.1).

23) Coming to the allegations of demand prior to the

date of trap and further demand on the date of trap and

acceptance of the bribe, virtually, there is no substantive

evidence in this regard. It is no doubt true that the judgment of

the Hon'ble Supreme Court as referred to above in the grounds

of appeal and also further in view of the latest decision of the

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

(Government of NCT of Delhi) 2 , when the defacto-

complainant died or when the defacto-complainant turned

hostile, the Court can look into other circumstances also to

adjudicate as to the case of the prosecution would prove the

allegations of demand and acceptance of bribe, etc. Keeping in

view, this Court has to look into the issue.

24) Absolutely, the only thing that was established by

the prosecution is that A.O handled with the tainted amount of

Rs.500/-. P.W.2, the mediator and P.W.3, the Investing Officer,

were not the witnesses to speak about the events happened

between the A.O and the defacto-complainant (L.W.1). So, the

defence theory is that when he was in the shed, the defacto-

2 (2022) SCC OnLine SC 1724

complainant (L.W.1) came there and tried to thrust some

amount in his pocket and he averted of the same and that the

defacto-complainant (L.W.1) opened his (A.O) right hand and

kept the tainted amount and gone away and in the meantime,

amount was fallen on the ground and that he took the amount

with his right hand and kept on the table and chased the

defacto-complainant (L.W.1) to give the amount. It is to be

noticed that this defence of the A.O has some support from the

answers spoken by P.W.1 during the cross examination that on

hearing some cries, he observed through window and found that

the defacto-complainant (L.W.1) was going out and A.O was

following him.

25) It is to be noticed that the A.O can succeed basing

on the preponderance of the probabilities. It is to be further

noticed that if really the A.O demanded and collected a sum of

Rs.500/-, naturally reaction immediately would be that the bribe

taker would keep the amount in a concealed position either in

the pocket of shirt or trouser or in an almirah or table drawer, if

they are available. On the other hand, even as evident from the

evidence of P.W.2 and P.W.3, it is clear that A.O was holding the

amount in his hands. The defence of the A.O is that when the

amount fallen down, he took the amount and tried to give the

same to the defacto-complainant (L.W.1) by following him.

26) At this juncture, it is necessary to refer here

Ex.P.10, the sanction order. According to the version of the A.O

and prosecution, amount was kept on the table initially by the

A.O. But, as seen from Ex.P.10, A.O received the amount from

the defacto-complainant (L.W.1), counted it and kept the same

on the table. Ex.P.10 did not disclose that the amount was in

the right hand of the A.O when the trap party entered into the

office. So, it is clear that virtually, the probability of finding the

amount on the table by the trap party as put forth by the A.O

cannot be ruled out. If those are taken into consideration, A.O

is able to establish a probability that he was chasing the

defacto-complainant (L.W.1) after he thrust the amount in his

hand. Leave apart all these things, when the prosecution has

miserably failed to establish that A.O was capable of restoring

the electricity service connection to the house of the defacto-

complainant (L.W.1), the question of demand and acceptance of

bribe does not arise.

27) Viewing from any angle, the prosecution before the

trial Court miserably failed to establish the essential ingredients

of the charges framed against the A.O and in my considered

view, the learned Special Judge for SPE and ACB Cases,

Visakhapatnam, rightly recorded an order of acquittal. Under

the circumstances, I see no reason to interfere with the

judgment of the trial Court.

28) In the result, the Criminal Appeal is dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 02.02.2023.

PGR

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

CRL. APPEAL NO.940 OF 2007

Date: 02.02.2023

PGR