Thota Ramachandraiah, Kadapa vs State Of A.P., Rep. By Spl. P.P. For ...
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 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH R0Y

             Criminal Appeal Nos.1110 and 1112 of 2017

COMMON JUDGMENT:


      Challenge in these two appeals is to the judgment, dated

28.08.2017, passed in Calendar Case No.13 of 2014 on the file of

the Special Judge for trial of SPE and Anti-Corruption Bureau

Cases, Kurnool, whereby the two appellants, who are Accused

Officer No.1 and accused No.2 in the said case, were convicted for

the offences punishable under Sections 7 and 13(2) r/w.13(1)(d) of

the Prevention of Corruption Act, 1988, (for short, the "P.C.Act"),

and under Section 12 of the P.C. Act respectively and were

sentenced to undergo imprisonment and to pay fine.


2)    Both A.O-1 and A-2 have preferred these two separate

appeals respectively. Therefore, both the appeals were heard

together and they are being disposed of by this common judgment.


3)    Facts of the prosecution case may be stated as follows:

      (a) A.O-1 is a Sub-Inspector of Police, working in Kadapa

District. On the written request made by the Regional Manager,

RTC, Kadapa, the Superintendent of Police, Kadapa, deputed

A.O.1 to control illicit plying of private vehicles within the limits of

Kadapa District in the year, 2009. RTC provided a Tata Spacio
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vehicle to A.O.1 for his official use to control the illicit plying of

private vehicles in Kadapa District. A-2 is the owner-cum-driver

of the said Tata Spacio vehicle. The vehicle of A.2 was hired by

RTC and it was allotted to A.O.1 along with the services of A-2 as

a driver of the said Tata Spacio vehicle. PW.11, Traffic Inspector-

II, was attached to A.O.1 to assist him.

(b) PW.7 is the owner of a Tata Ace Magic vehicle i.e. auto-

rickshaw bearing No.AP 4 Y 7897. PW.1 is his relative. PW.7 has

entrusted the said vehicle to PW.1. PW.1 was driving and running

the said vehicle and has been eking out his livelihood.

(c) Whileso, on 13.08.2011 some passengers hired the said

auto-rickshaw to go to Gandi Kshethram and when PW.1 has

taken them to Gandi Kshethram and was again returning, at

about 11.30 A.M. when they reached near Pendlimarri village,

A.O.1 stopped the said auto-rickshaw and asked PW.1 to show the

vehicle records. PW.1 showed the same. A.O.1 got the passengers

down from the auto-rickshaw and asked them to go to Kadapa in

a bus. As the auto-rickshaw was over-crowded with several

passengers beyond its seating capacity, A.O.1 took custody of the

vehicle and has entrusted the custody of the said vehicle to the

Police of Pendlimarri Police Station. It is stated that A.O.1

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demanded PW.1 to pay Rs.3,000/- to release the said vehicle.

When PW.1 expressed his inability to pay the demanded amount,

A.O.1 has taken the vehicle keys and handed over the same in the

Pendlimarri Police Station and asked PW.1 to come and meet

A.O.1 on Monday at his house in Kadapa Town. Accordingly, on

15.08.2011 PW.1 along with PW.2, who is his maternal uncle,

went to the house of A.O.1 and met him and requested him to

release the vehicle. A.O.1 demanded to pay a sum of Rs.3,000/-

i.e. Rs.2,000/- as bribe and Rs.1,000/- as fine amount and stated

that if they do not pay the same, that he would send a report to

the R.T.O. Having no other go, PW.1 reluctantly agreed to pay the

said amount on Wednesday to A.O.1.

(d) On the next day i.e. on 16.08.2011 PW.1 and PW.2 went

to the ACB office at Kadapa and lodged Ex.P1 report with the ACB

police narrating the above facts relating to demand of bribe made

by A.O.1 for the purpose of releasing the vehicle of PW.1. PW.17

the Deputy Superintendent of Police, ACB, Tirupati Range,

Tirupati, registered the said report as a case in Crime No.14/RCT-

TCD/2011 of Kadapa, Tirupati Range, for the offences punishable

under Section 7 of the P.C. Act. Ex.P.20 is the registered F.I.R.

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(e) On 17.08.2011, the ACB police secured the presence of

two mediators PW.3 and a person by name C.Balasubrahmanyam

and conducted pre-trap proceedings in the ACB office of Kadapa

in the presence of the said two mediators between 7.30 and 9.00

hours. The sum of Rs.3,000/- was handed over by PW.1 to the

ACB police and the serial numbers of the currency notes, which

are of hundred rupee notes 100 X 30 were noted and

phenolphthalein powder was applied to the said currency notes

and the same were kept in the left side pocket of the shirt of

PW.1. Ex.P4 is the said pre-trap proceedings prepared at that

time. It is stated that at that time, a person, whose name is not

disclosed said to be an auto-rickshaw driver known to PW.2,

informed PW.2 over phone that A.O.1 is at Mruthyunjaya Gunta

Road behind Hero Honda showroom.

(f) Thereafter, the ACB police along with PW.1 and PW.2 and

the mediators reached the Hero Honda Showroom of Kadapa in

two vehicles on the basis of the information said to have been

furnished by an unknown person to PW.2 over phone. PW.1 and

PW.2 proceeded towards Mruthunjaya Gunta Road behind Hero

Honda Showroom. Constable bearing P.C.No.959 followed them

and took vantage position at the cross of Mruthunjaya Gunta

Road, visible to the trap party. After PW.1 and PW.2 reached the

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Mruthunjaya Gunta Road, they found A.O.1 was surrounded by

some people and that A.O.1 was compounding the offences while

sitting in the front seat of the Tata Spacio vehicle. After clearing

the said people, A.O.1 asked PW.1 whether he brought the bribe

amount or not. A-2 was standing by the side of the vehicle at that

time. When PW.1 replied that he brought the bribe amount, A.O.1

asked him to handover bribe amount of Rs.2,000/- and fine

amount of Rs.1,000/- to A.2. A.O.1 also instructed A.2 to receive

the said money. Accordingly, PW.1 has given a sum of Rs.3,000/-

to A.2 as directed by A.O.1 and A.2 received the same with his

right hand and counted the money with his both hands and kept

the money in his right side pocket of his pant. A.2 informed A.O.1

that the amount is Rs.3,000/-. Thereafter, A.O.1 enquired about

the address particulars of PW.2 and he has issued a fine receipt

for Rs.1,000/- in the name of PW.2 and obtained the signature of

PW.2 on the fine receipt. Then, A.O.1 informed PW.1 to go to

Pendlimarri Police Station and show the fine receipt and get his

vehicle released.

(g) Thereafter, PW.1 and PW.2 returned and PW.1 gave the

pre-arranged signal to PC.No.959 by wiping his face with a

handkerchief. The Constable PC.No.959 in turn relayed signal to

the trap party by lifting both his hands. Immediately, the trap

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party rushed towards Mruthunjaya Gunta Road behind Hero

Honda Showroom in two vehicles after picking up P.C.No.959 in

the vehicle. The trap party found A.O.1 sitting in the front seat

adjacent to the seat of the driver in Tata Spacio vehicle and A.2

standing on the left side of the vehicle and PW.11 Traffic

Inspector-II T.Venkatesh, sitting behind the seat of the driver in

the said vehicle. PW.17 the Deputy Superintendent of Police,

ACB, got prepared sodium carbonate solution in two glass

tumblers and subjected both hand fingers of A.O.1 to the chemical

test. It did not yield positive result. Thereafter, PW.17 got

prepared sodium carbonate solution in two glass tumblers and

subjected both hand fingers of A.2 to the chemical test. The

fingers of both hands of A.2 turned into pink colour and the test

yielded positive result. When police questioned A.2, he has stated

that he has received Rs.3,000/- from PW.1 on the instructions of

A.O.1. So saying, A.2 inserted his hand in between the gap of seat

and back rest portion of the middle seat at the left side door of the

vehicle and picked up wad of currency notes and produced the

same before the ACB police stating that it is the money received by

him on instructions from A.O.1 from PW.1. One of the mediators

counted it at the instance of PW.17 and found it to be a sum of

Rs.3,000/-. The numbers on the currency notes tallied with the

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numbers mentioned in Ex.P4 pre-trap proceedings. PW.17 seized

the said sum of Rs.3,000/- in the presence of mediators. PW.17

also got swabbed the portion of the seat in the vehicle and

subjected the same to sodium carbonate solution test and the test

yielded positive result. A-2 also picked up money purse which is in

red colour from the middle seat portion of the said vehicle, which

is containing Rs.12,150/-. A-2 informed that Rs.150/- is his

personal money and the remaining Rs.12,000/- was the amount

received as per the directions of A.O.1 from the drivers/owners of

the vehicles, for which, A.O.1 compounded the offences and

collected fine amount on 16.08.2011 and 17.08.2011. A sum of

Rs.52,600/- was also produced by PW.11 the Traffic Inspector-II,

who is in the vehicle, from a bag lying behind him in the middle

seat stating that it was the fine amount given to him by A.O.1 for

remittance in the treasury. PW.17 also got the inner linings of the

right side pant pocket of A-2 subjected to chemical test and it also

yielded positive result and turned into pink colour. PW.17 seized

the pant of A.2. Thereafter, PW.17 examined PW.1 and PW.2 and

recorded their statements and collected the fine receipt of

Rs.1,000/- issued by A.O.1 which bears the signature of A.O.1

and PW.2 and seized the same. PW.17 arrested A.O.1 and A-2

and also got prepared Ex.P9 trap proceedings. Thereafter, A.O.1

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and A.2 were produced before the concerned Judge and they were

remanded to judicial custody.

(h) Thereafter, other witnesses were examined during the

course of investigation and their statements under Section 161

Cr.P.C. were recorded. PW.17 also got the statements of PW.1 and

PW.2 recorded under Section 164 Cr.P.C. before the learned III

Additional Metropolitan Magistrate, Tirupati.

(i) After completion of investigation, alleging that the

investigation revealed that A.O.1 demanded and accepted a sum of

Rs.3,000/- from PW.1 through A.2, out of which, Rs.2,000/- was

bribe amount and Rs.1,000/- was the fine amount on 17.08.2011

at Mruthunjaya Gunta Road, behind Hero Honda Showroom at

Kadapa for doing official favour of releasing Tata Ace Magic vehicle

bearing No.AP 4 Y 7897, which was seized by A.O.1 and kept in

Pendlimarri Police Station on 13.08.2011, charge-sheet was laid

against both A.O.1 and A-2 alleging that A.O.1 is liable for

punishment for the offences punishable under Sections 7, 13(2)

r/w.13(1)(d) of the P.C.Act and A-2, who is a private person, is

liable for punishment for the offence punishable under Section 12

of the P.C. Act.

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(j) It is stated that as A.O.1 retired from service on

30.06.2012 on attaining the age of superannuation that no

sanction order for prosecuting him is required under law and as

A.2 is a private person, no sanction order for prosecuting him is

also required.

(k) After taking cognizance of the said case, charges under

Sections 7 and 13 (2) r/w.13(1)(d) of the P.C.Act were framed

against A.O.1. Charge under Section 12 of the P.C. Act was

framed against A.2 by the trial Court and the same were readover

and explained to them in Telugu. They denied the said charges

and they claimed to be tried.

(l) During the course of trial, prosecution got examined PW.1

to PW.17 witnesses and got marked Ex.P1 to Ex.P20 documents

and M.O.1 to M.O.12 to substantiate its case against the accused.

(m) In Section 313 Cr.P.C. examination held to explain the

incriminating evidence adduced against the accused by the

prosecution, the accused denied the incriminating evidence

adduced against them and both A.O.1 and A.2 filed their written

statements separately and got examined D.W.1 and got marked

Ex.D1 to Ex.D6 on their behalf.

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(n) At the culmination of trial, eventually, the learned Special

Judge for SPE and Anti Corruption Bureau Cases, Kurnool, found

both A.O.1 and A.2 guilty for the charges leveled against them and

accordingly, convicted them and sentenced A.O.1 to undergo

rigorous imprisonment for a period of two years and to pay a fine

of Rs.1,000/-, and in default of payment of fine to undergo simple

imprisonment for a period of one month for the offence punishable

under Section 7 of the P.C.Act and further sentenced him to

undergo rigorous imprisonment for a period of two years and to

pay a fine of Rs.1,000/- and in default of payment of fine to

undergo simple imprisonment for a period of one month for the

offence punishable under Section 13(2) r/w.Sec.13(1)(d) of the P.C.

Act. A.2 was sentenced to undergo rigorous imprisonment for a

period of two years and to pay a fine of Rs.1,000/- and in default

of payment of fine to undergo simple imprisonment for a period of

one month for the offence punishable under Section 12 of the P.C.

Act and ordered that all the sentences shall run concurrently.

(o) Aggrieved thereby, the instant two separate criminal

appeals are filed by A.O.1 and A.2 assailing the legality and

validity of the impugned judgment of conviction and sentences

imposed against them by the trial Court.

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4) Heard Sri M.Jagadish Kumar, learned counsel for the

appellant-A.O.1 in Crl.A. No.1110 of 2017; and Ms.Aishwarya

Nagula, learned counsel for the appellant-A.2 in Crl.A.No.1112 of

2017; and Sri S.M.Subhani, learned Standing Counsel-cum-

Special Public Prosecutor for ACB for the respondent-State in both

the appeals.

5) The defence taken by both the accused is one of total denial.

It is their case that the entire case has been falsely foisted against

them and that they have been falsely implicated in the said case

as per the pre-planned strategy at the instance of owners and

drivers of the auto-rickshaws, who bore grudge against A.O.1 as

A.O.1 has been making extensive raids/checks and imposing fines

on the owners and drivers of the vehicles for contravening the

provisions of law in plying the said vehicles.

6) Both the learned counsel appearing for A.O.1 and A-2

vehemently contended before this Court that the entire oral and

documentary evidence adduced in this case is deliberately

fabricated, engineered and cooked up to implicate the accused in

the crime and there are several infirmities emanating from the

evidence on record, which clinchingly prove that the evidence

adduced by the prosecution in this case is a deliberate false

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evidence and that the accused are innocent. It is contended that

the trial Court did not at all properly appreciate the evidence on

record by subjecting the evidence adduced by the prosecution to

judicial scrutiny, which ultimately lead the trial Court to arrive at

an erroneous conclusion in recording a finding of guilt against the

accused and convicting them and sentencing them to undergo

imprisonment. They have pointed out several inconsistent and

contradictory versions in the evidence of prosecution witnesses

and inherent improbabilities in their evidence to show that the

evidence adduced by the prosecution is not trustworthy evidence.

7) Therefore, in view of the said infirmities and improbabilities

that are pointed out in the evidence of the prosecution witnesses,

this Court has reappraised the entire evidence on record and

subjected the same to strict judicial scrutiny. As rightly

contended by the learned counsel for the appellants, the evidence

adduced by the prosecution suffers from several fatal legal

infirmities and it is shrouded in high suspicion and ultimately, the

said evidence is not found to be convincing and trustworthy to

place complete reliance on the said evidence for the purpose of

establishing the guilt of both the accused beyond all reasonable

doubt.

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8) The fact that the auto-rickshaw was seized by A.O.1 is not in

dispute. The evidence on record establishes that on 13.08.2011,

A.O.1, while discharging his official duty of controlling illicit plying

of private vehicles, seized the Tata Ace Magic vehicle bearing

No.AP4Y 7897 being driven by PW.1 on the ground that the auto-

rickshaw was overcrowded with several passengers. The accused

also did not deny the said fact as can be seen from the defence

taken by them and the suggestions given by them to the

prosecution witnesses in this case in their cross-examination. The

fact that a sum of Rs.1,000/- was collected towards fine from

PW.1 in this regard is also not disputed by the accused. The

evidence of PW.1, who is the driver of the said vehicle, and

evidence of PW.4, who is the Head Constable of Pendlimarri Police

Station at the relevant time, coupled with Ex.P10 entry made in

the Sentry Book relating to receipt of the said vehicle in the said

police station for safe custody and Ex.P12, which is the document

in proof of release of the said vehicle after the fine amount was

paid, establishes that the said vehicle was seized by A.O.1 and it

was entrusted to the police of Pendlimarri Police Station for safe

custody till the fine amount is paid and the offence is compounded

and that thereafter the said vehicle was released.

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9) Now, it is the case of the prosecution that in order to release

the said vehicle that was seized, A.O.1 demanded PW.1 to pay

Rs.3,000/- i.e. Rs.1,000/- towards fine and Rs.2,000/- towards

bribe and when PW.1 along with PW.2 went and paid the said sum

of Rs.3,000/- as demanded that a trap was laid and the bribe

amount was seized and recovered. It is the case of the

prosecution that when A.O.1 was imposing fine on various drivers

and owners of the vehicles, on 17.08.2011 on the back side of the

Hero Honda showroom that PW.1 and PW.2 met him and informed

him that the bribe amount was brought, and at that time, A.O.1

informed them to hand over the said money to A.2 and A.2

received the same and that, thereafter, when the trap party

reached the said place after receiving signal from PW.1 that they

recovered Rs.3,000/- from the gap of back seat and the back rest

of the middle seat in the vehicle at the instance of A.2 in the

presence of mediators.

10) In order to prove the said demand said to have been made by

A.O.1 to pay bribe amount to release the vehicle and to prove the

payment of the said money and receipt of the same by A.O.1 and

A.2, prosecution mainly relied on the evidence of PW.1, PW.2,

PW.3 and PW.17. PW.1 is the driver of the said auto-rickshaw,

which was seized. PW.2 is maternal uncle of PW.1, who allegedly

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accompanied him to pay bribe amount to A.O.1. PW.3 is the

mediator of the pre-trap proceedings and the trap proceedings and

PW.17 is the Deputy Superintendent of Police, A.C.B, who laid the

said trap and investigated the said case.

11) When the evidence of these witnesses is subjected to judicial

scrutiny, several inconsistent versions are found to be emanating

from their evidence, which make their testimony iffy and wholly

unreliable.

12) PW.1 stated in his evidence that on 13.08.2011 when A.O.1

seized his vehicle that he demanded bribe of Rs.3,000/- from him

to release the vehicle. But, in his cross-examination, he has

unequivocally admitted that he did not mention in his Ex.P1

report and also in his Sec.161 Cr.P.C. statement that A.O.1

demanded Rs.3,000/- as bribe on 13.08.2011. But, as can be

seen from Ex.P1 report, it is stated that A.O.1 informed PW.1 that

he would release the vehicle only if Rs.3,000/- is paid. Yet, PW.1

clearly stated in his cross-examination in the evidence given by

him in the Court that he did not mention the said fact in Ex.P1

report. So, it shows that PW.1 is not the original author of Ex.P1

report and it was engineered and fabricated with a concocted

version with the said allegation. This goes to the root of the

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matter as, in order to prove the guilt of A.O.1 for the offences

punishable under Sections 7, 13(2) r/w.13(a)(d) of the P.C. Act,

the prosecution has to invariably prove and establish that a

demand was made by A.O.1 for payment of bribe to do an official

favour of releasing the vehicle and thereby he has received the

said bribe amount. Even though, PW.1 deposed in his evidence

that A.O.1 demanded Rs.3,000/- to release the said vehicle and

even though the said fact was mentioned in Ex.P1 report, he

unequivocally stated and admitted in the cross-examination that

he did not mention in Ex.P1 report and in his Sec.161 Cr.P.C.

statement that A.O.1 demanded Rs.3,000/- as bribe on

13.08.2011. For better appreciation, the said evidence given by

him in the cross-examination is extracted hereunder:

"I did not mention in Ex.P1 complaint and 161 Cr.P.C. statement that A.O.1 demanded Rs.3,000/- as bribe on 13.08.2011."

So, this evidence makes the very contents of Ex.P1 report and also

the evidence given to that effect by PW.l in his examination-in-

chief regarding the demand for bribe said to have been made by

A.O.1 to release the vehicle, a mendacious allegation.

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13) In similar situation, in the case of K.Shanthamma v. State

of Telangana1, the Apex Court held at para.11 as follows:

"Thus, PW.1 did not state that the appellant reiterated her demand at the time of trap. His version is that on his own, he told her that he had brought the amount. What is material is the cross-examination on this aspect. In the cross- examination, PW.1 accepted that this version regarding the demand made by the appellant on various dates was an improvement. The relevant part of the cross-examination of the appellant reads thus:

"I did not state to ACB Inspector in Section 161 Cr.P.C. statement that on the evening of 24.02.2000 I met the A.O. and that she demanded the bribe. I did not mention in Ex.P3 complaint that continuously for 3 days after 24.02.2000 I met the A.O. and the A.O. reiterated her demand. I did not mention in Ex.P3 complaint that on 29.02.2000 I approached the A.O. and the A.O. demanded bribe of Rs.3,000/- and that unless I pay the said bribe amount she will not issue final assessment orders. ....."

14) The Apex Court did not believe the evidence of the witness

given relating to the material fact that the accused officer

demanded bribe, on account of the material omissions made in

this regard in the report as well as in Sec.161 Cr.P.C. statement,

as admitted in the cross-examination of the witness.

15) In this case also, as discussed supra, PW.1 categorically

admitted in his cross-examination that he did not mention that

1 2022 (2) ALT (Cri) (SC) 110

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A.O.1 demanded bribe of Rs.3,000/- on 13.08.2011 in Ex.P1

report and also in Sec.161 Cr.P.C. statement. So, it proves that

the evidence given by PW.1 in his evidence before the trial Court

that A.O.1 demanded bribe is absolutely false and it is a deliberate

improvement made in his evidence. So, it is not safe to rely on the

said testimony of PW.1.

16) When the very demand of bribe by A.O.1 is not proved, it

cuts the case of the prosecution at its roots. It is settled law that

mere recovery of currency notes by itself is not sufficient to prove

the guilt of the accused when the demand for bribe is not proved

with legal, cogent and convincing evidence. The legal position in

this regard is very well-settled by the Apex Court vide N.Vijay

Kumar v. State of Tamil Nadu2; Dasarath Singh Chauhan v.

Central Bureau of Investigation3; P.Satyanarayana Murthy v.

The District Inspector of Police, State of Andhra Pradesh 4;

N.Sunkanna v. The State of Andhra Pradesh5; and B.Jayaraj v.

State of Andhra Pradesh6.

2 (2021) 3 SCC 687 3 (2019) 17 SCC 509 4 (2015) 10 SCC 152 5 (2016) 1 SCC 703;

6 (2014) 13 SCC 55

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17) In the case of N.Vijay Kumar2, a three-Judge Bench of the

Apex Court held as follows:

"It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M.Girish Babu v. CBI [(2009) 3 SCC 779 and in B.Jaya Raj v. State of A.P. [ (2014) 13 SCC 55)....."

18) In the aforesaid judgment, while considering the case under

Sections 7, 13(1)((d)(i) and (ii) of the Prevention of Corruption Act,

1988, the Apex Court reiterated the law stating that to prove the

charge, it has to be proved beyond reasonable doubt that the

accused voluntarily accepted money knowing it to be bribe. It is

held that in the absence of proof of demand for illegal gratification,

mere possession or recovery of currency notes is not sufficient to

constitute such offence. It is also held that even the presumption

under Section 20 of the Act can be drawn only after demand for

and acceptance of illegal gratification is proved.

19) So, in view of the ratio laid down in the judgment of

K.Shanthamma1, in this case also, considering the evidence of

PW.1 that he did not mention in Ex.P1 or in his Sec.161 Cr.P.C.

statement that A.O.1 demanded bribe of Rs.3,000/- to release the

vehicle on 13.08.2011, it is to be held that the evidence given by

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him to that effect in the Court is a deliberate improvement made

in his evidence and that the prosecution failed to prove the

demand for bribe said to have been made by A.O.1.

20)    Further, as per the prosecution version, PW.1, PW.2 and

PW.3     along   with   other    mediator    by     name         Sri      C.

Balasubrahmanyam were present along with ACB police at the

time of preparing pre-trap proceedings under Ex.P4. At that time,

it is the version of prosecution that PW.2 received information over

phone from another driver that A.O.1 was present at the place

behind the Hero Honda showroom and after receiving the said

information, they proceeded to the said place to lay the trap. But,

none of the witnesses viz., PW.1, PW.2, PW.3 and PW.17 could

give the name and details of the said person, who furnished the

said information regarding the presence of A.O.1 behind the Hero

Honda showroom on 17.08.2011. PW.2 stated in the cross-

examination that he cannot say the name of the auto-driver, who

telephoned him, while he was in pre-trap proceedings and that he

also cannot say the telephone number of the said auto driver. It is

unbelievable to say that he does not even know the name of the

auto driver, who informed him about the presence of A.O.1 at the

place where the trap was laid. PW.2 stated in his evidence that

the auto-driver, who furnished the information, belonged to his

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village and he informed him that A.O.1 was imposing fine

amounts at the place behind the Hero Honda showroom. Yet,

when the said auto driver belongs to the village of PW.2, he says

that he does not know the name of the said auto driver. This

shows that the version of the prosecution witnesses that some

auto-driver informed PW.2 over phone regarding the presence of

A.O.1 behind the Hero Honda showroom and on the basis of the

said information that they reached the said place and laid trap is

not true.

21) PW.1 in his evidence in his examination-in-chief stated that

when he reached behind the Hero Honda showroom, where A.O.1

was there in discharge of his official duty of imposing fine amount

along with A.2 on 17.08.2011 when the alleged trap was laid, that

he found the driver i.e. A.2 sitting in the driver seat and A.O.1 was

sitting by the side of the driver in the front seat of the vehicle.

However, when he was recalled and cross-examined by Special

Public Prosecutor, he tergiversated and he has given a different

version stating that he has stated before the mediators in the

presence of Deputy Superintendent of Police that A.2 was standing

adjacent to A.O.1. Further, PW.1 stated in his examination-in-

chief that after receiving a sum of Rs.3,000/- that A.2 kept the

amount in the back pocket of his pant on the right side. But, in

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Crl.A.Nos.1110 and 1112 of 2017

the cross-examination by Special Public Prosecutor, he

prevaricated and again stated that A.2 kept the said amount in

the right side pocket of his pant i.e. front pocket and that due to

loss of memory that he stated in his examination-in-chief that A.2

kept the said money in the back pocket of his pant. So, the

prevaricating statements and inconsistent evidence of PW.1, as

discussed supra, regarding the exact positions in which he found

both A.O.1 and A.2 in the vehicle at the time when the alleged trap

was laid, and the contradictory versions given by him as to in

which pocket of the pant, A.2 has kept the said money clearly

shows that the very payment of the said bribe amount to A.2 by

PW.1 at the instance of A.O.1 as alleged by the prosecution is not

true.

22) PW.11 by name T.Venkatesh is the Traffic Inspector working

in APSRTC, who is attached to A.O.1 to take up a special drive to

inspect the private vehicles plying contrary to the relevant Rules.

Admittedly, this PW.11 was with A.O.1 and A.2 on 17.08.2011 at

the time when the trap was laid. According to the prosecution

version, he was sitting in the middle seat behind the driver seat in

the said vehicle. PW.2 clearly deposed in his evidence that when

he and PW.1 went to back side of Hero Honda showroom, that

they found A.O.1 and A.2 and another person sitting in the vehicle

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Crl.A.Nos.1110 and 1112 of 2017

and at that time, A.O.1 was imposing fine to others. However, in

the cross-examination, he stated that no person was sitting on the

middle seat. Thus, PW.2 has intelligently eliminated the presence

of PW.11 in the cross-examination. PW.3, who is the mediator,

deposed in his evidence that when they reached the said place,

that he found one person sitting by the side of driver seat and

another person standing near the vehicle and they are A.O.1 and

A.2 and further deposed that apart from A.O.1 and A.2, one

person was sitting in the middle of the vehicle. He further

deposed in his evidence that the third person, who sat in the

middle seat of the vehicle, is T.Venkatesh (i.e. PW.11). So, the

evidence of the mediator PW.3 shows that the Traffic Inspector

T.Venkatesh - PW.11 was sitting on the middle seat of the vehicle,

when he along with the ACB police reached the said place after

receiving signal from PW.1. So, the evidence of PW.2 and PW.3

established the presence of PW.11 at the time of alleged trap. It is

significant to note that this PW.11 did not depose anything in his

evidence saying that when PW.1 and PW.2 came there, that A.O.1

directed them to give the bribe amount to A.2 and that A.2

received the same as directed by A.O.1. This PW.11 also while

admitting his presence along with A.O.1 and A.2 on 17.08.2011

behind Hero Honda Showroom, only stated that A.O.1 was talking

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Crl.A.Nos.1110 and 1112 of 2017

to others and A.2 was standing near A.O.1. He did not say that

PW.1 and PW.2 are the said persons, who are talking to A.O.1. He

has very intelligently stated that at that time he went to pass

urine and after some time, he came back. He also did not speak

anything in his evidence regarding the material fact of recovering

the sum of Rs.3,000/- by ACB police from the vehicle in the gap

between the middle seat and its back rest at the instance of A.2.

If really, the bribe amount was paid by PW.1 to A.2 at the instance

of A.O.1, and A.2 has hidden the same between the gap of middle

seat and its back rest, and if really it was recovered by ACB police

at the instance of A.2, as alleged by the prosecution, PW.11, who

is the Traffic Inspector, who is admittedly present at that time,

would be the direct eye-witness to the said incident and he would

have deposed regarding the said material facts. As he did not give

any evidence supporting the said version of the prosecution and

as his presence is very intelligently eliminated by simply saying

that he went to pass urine at that time, it throws any amount of

doubt regarding the truthfulness in the version of the prosecution

case relating to the said payment of bribe amount and recovery of

the same at the instance of A.2. Even if he has gone to pass urine

when A.O.1 was talking with two other persons, as he was found

to be present after the trap party reached the place after receiving

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Crl.A.Nos.1110 and 1112 of 2017

signal from PW.1, which is evident from the evidence of the

mediator PW.3, he must be a direct witness for recovery of the

amount of Rs.3,000/- at the instance of A.2 in between the gap of

middle seat and its back rest by the ACB police. As he did not say

anything regarding the said recovery of money at the instance of

A.2 by the ACB police, the version of the prosecution that the said

sum of Rs.3,000/- was recovered at the instance of A.2 shrouds in

high suspicion and it cannot be believed.

23) Another important anomaly in the prosecution story and in

the evidence of prosecution witnesses, which clinchingly proves

that the recovery of MO,7 Rs.3,000/- being bribe amount at the

instance of A.2 from the gap between middle seat and its back rest

is absolutely false, is, it is the case of the prosecution that out of

Rs.3,000/- that was allegedly given by PW.1, a sum of Rs.1,000/-

was collected towards fine and a fine receipt was issued to that

effect in the name of PW.2 and the remaining sum of Rs.2,000/- is

the bribe amount. If that be the case, when Rs.1,000/- is received

towards fine under Ex.P.2 receipt, the ACB police should find a

sum of Rs.2,000/- only in between the gap of middle seat and its

back rest. There is no possibility of recovering Rs.3,000/- from

the said place as the bribe amount. Surprisingly, PW.3, who is

the mediator, deposed in his evidence that A.2 produced the

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Crl.A.Nos.1110 and 1112 of 2017

money from the gap between middle seat and its back rest of the

vehicle and that he received the said money and found Rs.3,000/-

(Rs.100/- X 30) and on verification, the said amount tallied with

the numbers mentioned in the pre-trap proceedings and that

M.O.7 is the said cash of Rs.3,000/-. Similarly, even PW.17

Dy.S.P., the Investigating Officer, also deposed in his evidence that

A.2 produced wad of currency notes from the gap of middle seat

and its back rest and PW.3 received the said sum of Rs.3,000/-

and found that it tallied with the numbers mentioned in the pre-

trap proceedings and M.O.7 is the said cash of Rs.3,000/-. So,

the inherent improbability in the said version that sum of

Rs.3,000/- was recovered from the gap between middle seat and

its back rest, again proves the said version to be false.

24) The fact that the fingers of A.2 turned pink when he was

subjected to sodium carbonate test and the fact that inner lining

of the front pocket of his pant also turned pink when the same

was subjected to the sodium carbonate test by itself will not

establish that the bribe amount was received by A.2. As a sum of

Rs.1,000/- was admittedly received by A.2 towards fine for release

of the seized vehicle and as A.2 counted the said notes, his fingers

must have turned pink in the said sodium carbonate test and

admittedly as he has placed the said fingers in his pant front

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Crl.A.Nos.1110 and 1112 of 2017

pocket, naturally the inner lining of the front pocket of his pant

would also turn pink when the same was subjected to the said

test. So, this fact by itself will not establish that he received bribe

amount of Rs.2,000/-.

25) Now, it is relevant to note here that as per the prosecution

version, A.2 produced one purse, picked up from underneath the

middle seat in the vehicle and this purse contains a sum of

Rs.12,150/- and Rs.150/- is the personal money of A.2 and

Rs.8,500/- out of it relates to fine amount that was collected and

there is balance sum of Rs.3,500/-, which is unaccounted for.

This fine amount was admittedly collected both on 16th day and

17th day of August, 2011. Similarly, PW.11, the Traffic Inspector,

also produced a sum of Rs.52,000/- before PW.17 Dy.S.P. stating

that it was also the fine amount collected during the previous two

days and on that day. Therefore, the sum of Rs.1,000/- collected

towards fine from PW.1 either must be in the said fine amount

Rs.8,500/- found in the purse produced by A.2 or in the sum of

Rs.52,000/- produced by PW.11, which is the fine amount

collected. There is no possibility for the said sum of Rs.1,000/-

collected towards fine from PW.1 to be hidden along with

Rs.2,000/- in the gap between middle seat and its back rest. So,

this inherent improbability in the case also clearly proves that the

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Crl.A.Nos.1110 and 1112 of 2017

story of prosecution that a sum of Rs.3,000/- was hidden by A.2

in the gap between middle seat and its back rest and it was

recovered at his instance as bribe amount, to be absolutely false.

26) Further, in Ex.P.9 trap proceedings, it is stated that A.2

picked up the said money purse containing Rs.12,150/- from

under the middle seat of the vehicle and PW.17, the Dy.S.P., also

stated the same fact that the purse was picked up by A.2 from

under the middle seat of the vehicle. But, PW.3, who is the

mediator, did not say in his evidence that the said purse was

picked up by A.2 from under the middle seat of the vehicle. He

only stated that A.2 gave the said purse. But, from where he

picked up the purse is not spoken to by PW.3. Moreover, when

the purse contains the only personal money and the fine amount

collected and when it does not contain the bribe amount, there is

no possibility for A.2 to conceal the said purse under the middle

seat of the vehicle. So, this again appears to be a concocted story.

27) As per the prosecution case, A.O.1 has issued receipt after

collecting fine of Rs.1,000/- from PW.1 in the name of PW.2.

Ex.P2 fine receipt also stands in the name of PW.2. PW.1 is the

driver of the said vehicle, which was seized and PW.7 is the owner

of the said vehicle in whose name the said vehicle was registered.

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Crl.A.Nos.1110 and 1112 of 2017

According to the version of the prosecution, PW.1 being the

relative of PW.7 is driving and running the said vehicle and eking

out his livelihood. So, Ex.P2 fine receipt is to be issued either in

the name of PW.1, who is the driver, or in the name of PW.7, who

is the owner of the said vehicle. Surprisingly, it was issued in the

name of PW.2. It is not the original version of the prosecution that

PW.2 is the actual owner of the said vehicle and that he is

maintaining the same. But, for the first time, PW.7, in whose

name the vehicle stands, deposed in his evidence that PW.2 got

the said vehicle registered in his name. But, PW.2 did not say

anything in his evidence that he purchased the said vehicle and

got it registered in the name of PW.7. Therefore, the said

evidence, as discussed above, again shows that PW.2 has nothing

to do with the said vehicle. So, Ex.P2 fine receipt cannot be

issued in his name. The said receipt appears to have been

obtained in the name of PW.2 only to establish and probablise his

presence at the time of alleged trap. It shows that he was very

intelligently set-up as a planted witness in this case.

28) Further, PW.1 did not state in his evidence that immediately

after seizure of the vehicle at 11.00 A.M. on 13.08.2011 that he

informed PW.2 over phone that the vehicle was seized by A.O.1

and that he demanded Rs.3,000/- to release the same. However,

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Crl.A.Nos.1110 and 1112 of 2017

PW.2 deposed in his evidence that on 13.08.2011 at about 11.00

A.M. PW.1 informed him over phone that A.O.1 seized the auto

and demanded Rs.3,000/-. This PW.2 also admitted in his cross-

examination that he did not state before the police that PW.1

telephoned to him at 11.00 A.M. on 13.08.2011. So, these

infirmities in the evidence of PW.1 and PW.2 and in the

prosecution story clearly show that PW.2 is planted as a witness

in this case to falsely bolster the case of the prosecution.

29) The scribe of Ex.P4 pre-trap proceedings and the scribe of

Ex.P.9 trap proceedings and the person who was present at the

time of alleged trap along with PW.3 mediator, is Sri C.

Balasubrahmanyam. He was not examined in this case and his

evidence was deliberately suppressed and withheld by the

prosecution. It is not as though he was not available for the

prosecution to examine him as a witness. PW.3, one of the

mediators, clearly deposed in his cross-examination that the other

mediator by name Sri C.Balasubrahmanyam came to the Court

after receipt of summons to give evidence along with him and the

said Balasubrahmanyam is the scribe of Ex.P4 pre-trap

proceedings and Ex.P9 trap proceedings. Thus, it is clear that

eventhough Sri C.Balasubrahmanyam, the scribe of both Ex.P4

pre-trap proceedings and Ex.P9 trap proceedings, and who was

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Crl.A.Nos.1110 and 1112 of 2017

also present at the time of alleged trap, was summoned as a

witness and he also attended the Court, he was not examined and

his evidence has been deliberately suppressed. So, his non-

examination is clearly fatal to the case of the prosecution. As his

evidence was deliberately withheld by the prosecution, adverse

inference is to be drawn on account of his non-examination and

the inference to be drawn under Section 114(g) of the Indian

Evidence Act is that if he is examined, as his evidence would be

unfavourable to the case set up by the prosecution that he was

not examined. When there are several fatal infirmities in the

evidence of PW.1, PW.2, PW.3 and other witnesses of the

prosecution, the evidence of the scribe of Ex.P.4 and Ex.P9 is very

much essential at least as a corroborative piece of evidence to the

evidence given by the other witnesses.

30) Thus, after considering the entire gamut of the evidence on

record adduced by the prosecution, and after reappraising the

same and subjecting the same to strict judicial scrutiny, it is

found that the entire evidence of the prosecution bristles with

several fatal legal infirmities. The evidence of the prosecution is

not of any sterling worth and the evidence of prosecution is found

to be completely iffy, untrustworthy and wholly unreliable. So, it

is highly hazardous to place complete reliance on the testimony of

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Crl.A.Nos.1110 and 1112 of 2017

the said witnesses for the purpose of recording a finding of guilt

against A.O.1 and A.2.

31) In this context, it is also relevant to note that the evidence of

DW.1 and Ex.D1 equivalent to Ex.P16, Out Patient Chit of A.2,

shows that A.2 sustained injuries when he was in the custody of

ACB police after his arrest. It is not explained by the prosecution

as to how he sustained the said injuries. It also throws any

amount of doubt regarding the false implication of A.2 in this

case.

32) The trial Court completely ignored the inherent

improbabilities in the case of prosecution and the fatal legal

infirmities in the evidence of prosecution witnesses, as discussed

supra, which make their testimony highly doubtful, and unsafe to

place complete reliance on the said evidence. So, the trial Court

did not properly appreciate the evidence on record and thereby

arrived at an erroneous conclusion that the prosecution has

proved the guilt against A.O.1 and A.2 for the charges leveled

against them.

33) Upon reappraisal of the entire evidence on record, and after

subjecting the same to strict judicial scrutiny, this Court found

the evidence of prosecution witnesses to be wholly unreliable.

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Therefore, no finding of guilt can be recorded against A.O.1 and

A.2 on the basis of the said evidence on record. So, it is to be held

that the prosecution failed to prove the charges leveled against the

accused, who are A.O.1 and A.2, with legal, cogent and convincing

evidence, beyond all reasonable doubt. At any rate atleast the

accused are entitled for benefit of doubt. The demand of bribe

and payment of bribe amount and receipt of the same either by

A.O.1 or A.2, and also the recovery of the same from them, is not

proved by the prosecution with legal, cogent and convincing

evidence.

34) Resultantly, both the Criminal Appeals are allowed. The

impugned judgment of conviction and sentence imposed against

both A.O.1 and A.2 in Calendar Case No.13 of 2014 on the file of

the Special Judge for trial of SPE and Anti-Corruption Bureau

Cases, Kurnool, is set aside. Both A.O.1 and A.2 are acquitted of

the charges leveled against them. Their bail bonds shall stand

cancelled.

As a sequel, miscellaneous applications, pending if any,

shall also stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:03-01-2023.

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