State, vs Mandava Subhash Chandra Bose
2023 Latest Caselaw 1717 AP

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

                CRIMINAL APPEAL NO.305 OF 2011

JUDGMENT:-

        This is a Criminal Appeal filed by the State, represented by

the Inspector of Police, Anti Corruption Bureau, Vizianagaram

Range,        Vizianagaram,   challenging   the   judgment,   dated

30.09.2009 in C.C.No.1 of 2005, on the file of the Special Judge

for SPE & A.C.B. Cases, Visakhapatnam, where under, the

learned Special Judge acquitted the Accused Officer Nos.1 to 3

and A.4 not guilty of the charges under Sections 7 and 13(2)

r/w 13(1) (d) and Section 12 of the Prevention of Corruption Act

("P.C. Act" for short) and acquitted them under Section 248(1)

of the Code of Criminal Procedure Code ("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, represented by Deputy Superintendent of

Police, A.C.B., Vizianagaram Range, Vizianagaram, filed charge

sheet    in    Crime   No.14/RC-ACB/VZM/2003      of   Vizianagaram

Range, Vizianagaram, alleging in substance as follows:

        (i) A.O.1 worked as Assistant Superintendent, Prohibition

& Excise, Srikakulam. A.O.2 worked as Excise Inspector,
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Prohibition & Excise, Ponduru Police Station.         A.O.3 worked as

Excise Constable, Prohibition & Excise, Ponduru Police Station.

They worked during the period from 13.08.2002 to 18.11.2003,

01.08.2001 to 18.11.2003 and 11.10.1999 to 18.11.2003

respectively.   By virtue of the posts held, they fall under the

category of Public Servants as defined in Section 2(c) of P.C.

Act. A.4 is a private person. L.W.1-Singuru Nageswara Rao is

resident of Kinthali village, Srikakulam District. He was a

licensee of Durga Wines, Kinthali, Ponduru Mandal, Srikakulam

District. He furnished bank guarantee of Rs.2,00,000/- at the

time   of   licence   renewal   to       L.W.5-Prohibtion   and   Excise

Superintendent, Srikakulam. He paid all licence fees for the year

2003-04.

       (ii) On 08.11.2003 at 10-00 a.m., he met A.O.2 along with

L.W.2-Singuru Tejeswara Rao and requested him to issue "no

due certificate" in order to take back his bank guarantee. A.O.2

instructed him to meet A.O.1 and asked him to follow as he was

proceeding to Srikakulam to meet A.O.1. Then, both L.W.1 and

L.W.2 proceeded along with A.O.2 and met A.O.1 on the same

day i.e., on 08.11.2003 at 7-00 p.m. at his residence. On seeing

L.W.1, A.O.1 demanded bribe of Rs.15,000/- from him in the

presence of L.W.2 to give instructions to A.O.2 to issue no due

certificate in order to take back the bank guarantee pledged at
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the time of renewal of licence of his wine shop. When L.W.1

expressed his inability to pay such huge amount, A.O.1 reduced

it to Rs.10,000/- and directed him to handover the amount to

A.O.2, who was very much present along with A.O.1. A.O.2 gave

consent to receive Rs.10,000/- on behalf of A.O.1. On the same

day, A.O.2 also demanded L.W.1 to pay bribe of Rs.10,000/- to

issue no due certificate and directed him to give total amount of

Rs.20,000/- including his share and that of A.O.1 within a week

or 10 days either to him or to any other person directed by him.

As L.W.1 was unwilling to pay bribe to A.O.1 and A.O.2, he

approached ACB Inspector, Vizianagaram on 11.11.2003 at

10-00 a.m., and presented a report to take action against A.O.1

and A.O.2. L.W.10, Dy.S.P., ACB, registered the report as a case

in Crime No.14/RC-ACB/VZM/2003 under Section 7, 12 and

13(2) r/w 13(1)(d) of P.C. Act at 7-30 p.m. and took up

investigation. During investigation L.W.10 secured the services

of L.W.1 as a decoy and services of Gugugubelli Damodara Rao,

Lecturer     in    Civil     Engineering,    Government         Polytechnic,

Srikakulam        and      Biddika   Ramakrishna,      Junior     Assistant,

Government Polytechnic, Srikakulam. They acted as mediators.

ACB   laid     trap     on   18.11.2003     after   observing    necessary

formalities.
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      (iii) On 18.11.2003 at 11-30 a.m., A.O.1 to A.O.3 and A.4

were trapped at Excise Station, Ponduru when A.O.2 further

demanded and called A.O.3 into his room and instructed him to

receive bribe of Rs.20,000/- from L.W.1. A.O.3 called A.4 into

the room of A.O.2 and he instructed L.W.1 to handover the

amount to A.4.   When L.W.1 was ready to pay the amount to

A.4, A.4 looked towards A.O.3, who asked him to secure the

amount. Then, A.4 received the tainted currency notes of

Rs.20,000/- and kept it in his left side pocket in the presence of

accompanying witness, L.W.8-Biddika Ramakrishna, one of the

mediators. Both hand fingers of A.4 yielded positive result when

they subjected to chemical test. The chemical test on both hand

fingers of A.O.2 did not yield positive result. The tainted amount

was recovered from the left side shirt pocket of A.4. Inner

linings of left side shirt pocket of A.4 yielded positive result.

A.O.1 to A.O.3 and A.4 were arrested on 18.11.2003 and they

were produced before the ACB Court, Visakhapatnam and they

were forwarded to judicial custody on 19.11.2003. Later, they

were released on bail.

      (iv) During the course of investigation, L.W.10, ACB

Inspector, examined L.W.1, L.W.3-Md.Mohsin, L.W.4-Manyala

Appa Rao and L.W.5-Chinta Janardhan. The material gathered

during the investigation reveals that A.O.1 to A.O.3 demanded
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bribe of Rs.20,000/- as illegal gratification other than the legal

remuneration from L.W.1 and accepted the same through A.4.

        (v) The Government of Andhra Pradesh, being competent

authority     to   issue   prosecution   sanction     orders,   accorded

sanction for prosecution of A.O.1 to A.O.3 vide G.O.Ms.No.803,

dated     13.10.2004,      G.O.Ms.No.804,    dated    13.10.2004     and

G.O.Ms.No.805, dated 13.10.2004. Hence, the charge sheet.

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

Visakhapatnam, took cognizance of the case under the above

provisions of law and after appearance of A.O.1 to A.O.3 and A.4

and after complying the formalities under Section 207 of Cr.P.C.,

framed charges under Section 7 and 13 (1)(d) r/w 13(2) of P.C.

Act, 1988, against the A.O.1 and A.O.2 and Section 12 of P.C.

Act against A.O.3 and A.4 and explained to them in Telugu, for

which they denied the same, pleaded not guilty and claimed to

be tried.

        5)    During the course of trial before the learned Special

Judge for SPE & ACB Cases, Visakhapatnam, on behalf of the

prosecution, P.Ws.1 to 5 were examined and Exs.P.1 to P.17 and

M.O.1 to M.O.12 were marked. After closure of the evidence of

prosecution, A.O.1 to A.O.3 and A.4 were examined under

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

circumstances appearing in the evidence let in, for which they
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denied the same. D.W.1 and D.W.2 were examined on behalf of

the Accused Officers and Ex.D.1 to Ex.D.5 were marked.

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

Visakhapatnam, on hearing both sides and on considering the

oral and documentary evidence, found A.O.1 to A.O.3 and A.4

not guilty of the respective charges and acquitted of them under

Section 248(1) of Cr.P.C. Felt aggrieved of the same, the State,

represented by the Inspector of Police, A.C.B., Vizianagaram,

filed the present Criminal Appeal, challenging the judgment in

C.C.No.1 of 2005, dated 30.09.2009

     7)     While so, when the appeal is coming for hearing,

second    respondent/A.O.2   died.   On   perusal   of   the   death

certificate, the appeal against second respondent is abetted.

Therefore, the present appeal filed by the State is to be

adjudicated against first respondent/A.O.1, third respondent/

A.O.3 and forth respondent/A.4.

8) Hence, the points for determination are as follows:

(1) Whether the prosecution before the Court below proved that A.O.1 demanded P.W.1 to pay bribe of Rs.15,000/- and later reduced it to Rs.10,000/- prior to the date of trap and accepted the amount through A.O.2 on the date of trap i.e., on 18.11.2003, as such, committed the offence under Section 7 of the P.C. Act and

obtained unfair advantage within the meaning of Section 13(1)(d) r/w 13(2) of P.C. Act?

(2) Whether the prosecution before the Court below proved that A.O.3 and A.4 facilitated the commission of offence under Section 7 of P.C. Act, as such, they committed offence punishable under Section 12 of the P.C. Act?

(3) Whether the prosecution before the Court below proved charges against A.O.1, A.O.3 and A.4 beyond reasonable doubt?

Point Nos.1 to 3:-

9) The learned Standing Counsel, Smt. A. Gayathri

Reddy, appearing for the appellant/state, would contend that

P.W.1, the complainant, supported the case of the prosecution

in all respects. Even P.W.2 also supported the case of the

prosecution to most of the extent, but, he did not support the

case of the prosecution as to what was transpired between

P.W.1 and A.O.2 after P.W.1, A.O.2 and P.W.2 returned back to

Ponduru after meeting A.O.1 at Srikakulam. So, only for limited

extent he did not support the case of the prosecution. The

evidence of P.W.1 has corroboration from the evidence of P.W.2

with regard to the things happened on 08.11.2003 i.e., A.O.1

and A.O.2 demanded bribe from P.W.1. There was no dispute

that A.O.1 and A.O.2 were competent authorities to take

necessary steps to return the bank guarantee pledged by P.W.1

with regard to renewal of licence fee for his wine shop. Official

favour was pending before A.O.1 and A.O.2 as on the date of

trap. The evidence of P.W.1 with regard to demand made by

A.O.2 on the date of trap during the post-trap has corroboration

from the evidence of P.W.3, the accompanying witness. But,

intelligently, A.O.2 asked A.O.3 to accept the bribe amount and

A.O.3 in turn asked A.4 to accept the bribe amount. So, on

account of this practice invented by A.O.2, the amount was

ultimately paid to A.4. The evidence of P.W.1 during the post-

trap has corroboration from P.W.3, the accompanying witness

and further P.W.5, the trap laying officer. The defence of the

Accused Officers was denial of simplicitor stating that as P.W.1

was facing trial in Excise Cases, he bore grudge against A.O.1

and A.O.2 and implicated them falsely. The above said defence

is not tenable. With the above said contentions, the learned

counsel for the appellant submits that the appreciation of the

evidence by the learned Special Judge is not proper, as such,

the Criminal Appeal is liable to be allowed.

10) Sri G.A. Sudhakar, learned counsel, representing the

learned counsel for the first respondent, would contend that the

Accused Officers let in defence evidence before the Court below

by examining D.W.1 and D.W.2 and getting marked several

documents which goes to show that the complainant developed

grudge against A.O.1, as he was responsible for initiation of

criminal prosecution for violating the provisions of the Excise Act

and Prohibition Act. Therefore, he bore grudge against A.O.1. If

really A.O.1 demanded P.W.1 to pay the bribe, he would have

asked P.W.1 to bring the amount to his office and he would not

have entrusted the same to A.O.2. The evidence of P.W.1 in

this regard is not believable. A.O.1 has nothing to do with the

events happened at the office of A.O.2 on the date of trap.

A.O.1 never demanded any bribe amount. Even the prosecution

failed to prove the pendency of the official favour before A.O.1.

There was no application of P.W.1 pending with A.O.1 either

before the date of trap or on the date of trap. The learned

Special Judge on overall appreciation of the evidence rightly

extended an order of acquittal, as such, the criminal appeal is

liable to be dismissed.

11) Sri Vijay Mathukumilli, learned counsel for the third

respondent and forth respondent, would contend that no amount

was recovered from the possession of the third respondent.

Third respondent had nothing to do with the official transactions

of A.O.2. Forth respondent was a private person. He had no

knowledge whatsoever as to the official favour of P.W.1 pending

with A.O.2. On the date of incident, the complainant tried to

thrust the amount into the pocket of forth respondent in spite of

his resistance and ultimately complainant could succeed in

keeping the amount into left side shirt pocket and in the

meantime, ACB officials came there and caught hold of him.

The learned Special Judge rightly extended an order of acquittal,

as such, the criminal appeal is liable to be dismissed.

12) To succeed in the charges framed against A.O.1, it is

the bounden duty of the prosecution to prove the pendency of

the official favour and further the demand attributed against

A.O.1, dated 08.11.2003 to pay the bribe of Rs.10,000/- to

A.O.2 and that prosecution has to establish that whether A.O.1

had relation with the events happened on 18.11.2003. Further

the prosecution has to establish that A.O.3 and A.4 having

knowledge about the demand made by A.O.2 to pay the bribe

facilitated A.O.2 in the commission of the offence. These are the

crucial aspects which the prosecution was supposed to establish

before the Court below.

13) Admittedly, it is a case where Ex.P.1 alleged that

when the complainant met A.O.2 with a request to take

necessary steps to refund the amount covered under the bank

guarantee, he refused to issue no due certificate and asked him

to meet Excise Superintendent, Srikakulam i.e., A.O.1. It is his

further case that accordingly along with A.O.2, he met A.O.1 at

7-00 p.m. and where A.O.1 cried against him that he did not

meet him early and that directed him to pay Rs.15,000/- to

issue no due certificate and later reduced it at his request to

Rs.10,000/- and directed him to pay that amount to A.O.2 and

asked A.O.2 to receive the amount and to process no due

certificate and that A.O.2 agreed to follow the instructions. It is

his further allegation that after they came back to Ponduru,

A.O.2 asked him to pay further sum of Rs.10,000/- towards his

share and demanded total to bring Rs.20,000/-. So, according

to him, he decided to lodge a report and Ex.P.1 is his written

complaint.

14) The evidence of P.W.1 is in tune with the contents in

Ex.P.1 admittedly. The first demand is dated 08.11.2003.

Lodging of report was on 11.11.2003. The registration of F.I.R.

was on 18.11.2003. He spoken about the pre-trap events to the

effect that at the instance of Dy.S.P., he produced the proposed

bribe amount of Rs.20,000/- and it was applied with

phenolphthalein powder and the amount was kept into his shirt

pocket with a request to give the amount to A.O.2 on his further

demand. With regard to post-trap, he spoke to the fact that at

9-30 a.m., they left the ACB office, Srikakulam and proceeded

to Ponduru Excise Station. He and one mediator proceeded to

Prohibition & Excise Station. One Inspector of Police followed

him. He and mediator went inside the room of A.O.2. At that

time, A.O.2 was in his seat. One Constable Sreeramamurthy

i.e., A.O.3 was in the varanadh. A.O.2 enquired with him about

the tainted amount. He replied positively. Thereupon, A.O.2

called A.O.3 and asked him to receive the tainted amount. In

turn A.O.3 called A.4 and asked to receive the tainted amount

from him. At that time A.4 was wearing the black dress

observing Ayyappa Deeksha. When he offered the tainted

amount to A.4, he refused to receive the same. Thereafter,

A.O.3 asked A.4 to receive the amount. A.O.2 nodded the head

with a sign to receive the amount. Then, A.4 received the

amount from him and kept in his shirt pocket. After payment of

amount, he filed application before A.O.2 and A.O.2 signed

thereon by way of endorsement. Ex.P.2 is application, dated

18.11.2003 with the endorsement of A.O.2. Ex.P.2 was given to

him. After receiving Ex.P.2, he came out from Excise Station

and passed the pre-arranged signal. Then, the trap party came

there. This is the evidence of P.W.1.

15) P.W.2 testified that on 08.11.2003 P.W.1 requested

him to accompany him to Excise Station. He followed him there.

They met A.O.2. P.W.1 filed application for issuance of no due

certificate. A.O.2 refused to receive the application and

instructed P.W.1 to meet A.O.1 at Srikakulam. A.O.2 informed

them that he is going to Srikakulam to meet A.O.1 and asked

them to follow. So, they went to A.O.1 along with A.O.2 at 7-00

pm. On seeing P.W.1, A.O.1 questioned P.W.1 as to why he did

not met him earlier. P.W.1 informed to A.O.1 that he came to

get no due certificate. A.O.1 informed him that Rs.15,000/- has

to be paid to get no due certificate. P.W.1 expressed his

inability. A.O.1 finally asked to pay Rs.10,000/- and unless it is

paid, no due certificate will not be given. A.O.1 asked P.W.1 to

pay the amount to him or to A.O.2. A.O.1 instructed A.O.2 to

issue no due certificate after payment. A.O.2 agreed for it.

Later, they returned to police station. In the police station P.W.1

and A.O.2 engaged in conversation with each other which is not

known to him. After that, P.W.1 came out and informed him that

A.O.2 also demanded bribe of Rs.10,000/- and that he would

lodge a report. Learned Special Public Prosecutor got declared

him as hostile as P.W.2 did not speak the conversation between

A.O.1 and P.W.1 and during cross examination, he denied the

case of the prosecution.

16) P.W.3 was a mediator to the pre-trap and post-trap

proceedings. His evidence in post-trap on material aspects is

that he and P.W.1 went into the room of A.O.2 and A.O.2

enquired P.W.1 about the demanded amount and P.W.1 replied

positively. A.O.2 called A.O.3 into room. A.O.2 asked A.O.3 to

receive the amount from P.W.1. A.O.3 called another person

who was in the verandah. Another person is A.4. A.O.2 asked

A.4 to receive the amount. A.O.3 nodded the head and

thereupon, A.4 received the amount from P.W.1. A.4 kept that

received amount in his shirt pocket. Thereafter, A.O.2 prepared

no due certificate and gave to P.W.1. Later P.W.1 went outside

the room and after that trap party came and catch hold of them.

17) P.W.4 is the person who spoken about Ex.P.12,

Ex.P.13 and Ex.P.14, sanction orders issued against A.O.1 to

A.O.3.

18) P.W.5 is the trap laying officer.

19) Accused Officers got examined D.W.1. Through him,

Ex.D.3 true copy of tour diary of A.O.1 for 1st November to 30th

2003 and Ex.D.4 copy of General Diary of Prohibition & Excise,

Srikakulam, Amadalavalasa and Narasannapeta, dated

18.11.2003 and further Ex.D.5 certified true copy of record in

P.R.41/2003-04 of Ponduru Prohibition & Excise Station, were

marked. Further the Accused Officers examined D.W.2 to speak

certain things happened on the date of trap and further to speak

that on 08.11.2003 he and A.O.2 left the police station at 8-45

a.m., and went to Tullivalasa village in connection with

P.R.No.41/2003-04 from there they went to V.R. Valasa in

connection with I.D. liquors raids and again from there they

went to S.S. Puram for raids and returned to the police station

at about 8-30 p.m. Ex.P.17 is the relevant entries in the rough

duty register.

20) As seen from the cross examination of P.W.1, he did

not handover to the ACB Police along with Ex.P.1, the so-called

application, which was offered to A.O.2 on 08.11.2003 which

was alleged to be refused by A.O.2 on 08.11.2003. It is the

evidence of P.W.1 and P.W.2 that when P.W.1 on 08.11.2003

tried to handover application to A.O.2 requesting him to give no

due certificate, A.O.2 refused to receive the same. Curiously, as

seen from Ex.P.1, the allegations were as if when P.W.1

requested A.O.2 to return the bank guarantee of Rs.2,00,000/-,

A.O.2 refused to do so and asked him to meet A.O.1. Ex.P.1 did

not whisper that P.W.1 tried to give any application in writing

similar to that of Ex.P.2 to A.O.2 on 08.11.2003 requesting to

return the bank guarantee of Rs.2,00,000/-. Even it is not the

case of the prosecution that P.W.1 made any such attempt even

before A.O.1. The evidence of P.W.1 and P.W.2 that on

08.11.2003 P.W.1 gave an application to A.O.2 and A.O.2

refused to receive the said application had no basis from Ex.P.1.

As evident from Ex.P.2, it was dated 18.11.2003. The

prosecution did not examine any official to explain the procedure

relating to the refunding of the bank guarantee claimed by

P.W.1 from the Excise Department. It is not the case of the

prosecution that A.O.1 and A.O.2 had to take action suo-moto

so as to return the bank guarantee claimed by P.W.1. It is never

the case of the prosecution. But, the case is that when P.W.1

made a request on 08.11.2003 for refund of bank guarantee,

A.O.2 refused. Ex.P.1 did not contain that P.W.1 made any such

application on 08.11.2003. But, evidence was adduced as if

P.W.1 made such application on 08.11.2003. To prove the

bonafidies in this regard, P.W.1 did not enclose the application,

dated 08.11.2003, along with Ex.P.1. So, it is clear that the

evidence of P.W.1 that when P.W.1 tried to give an application

to A.O.2, he refused to receive the same cannot stands to any

reason.

21) What is evident even from the case of the

prosecution is that it was only during the so-called post-trap

proceedings that too after the alleged payment of bribe of

Rs.20,000/- to A.4, who had nothing to do with the official

favour, P.W.1 made an application under Ex.P.2 to A.O.2 and

A.O.2 was said to have made certain endorsements positively

recommending for refund of the amount claimed by P.W.1.

Therefore, in my considered view, the case of the prosecution is

not at all positive that on 08.11.2003 official favour in respect of

the work of P.W.1 was pending with either A.O.1 or A.O.2. As

pointed out, no evidence was adduced by the prosecution to the

effect that A.O.1 and A.O.2 were duty bound to take steps suo-

moto without there being any request in writing from P.W.1 to

refund the bank guarantee. In my considered view, the

prosecution miserably failed to prove the pendency of the official

favour as on 08.11.2003.

22) Now, coming to the aspects of the demand

attributed against A.O.1 that on 08.11.2003, he demanded

P.W.1 to pay bribe of Rs.15,000/-, later, reduced it to

Rs.10,000/- and directed him to pay the bribe amount to A.O.2.

P.W.1 and P.W.2 literally testified the same. It is to be noticed

that it is the specific defence of the A.O.1 that on 08.11.2003 he

engaged in some other duties and in support of his defence, he

got examined D.W.1 and got marked certain documents. Hence,

the plea of A.O.1 was that he was not available to the specified

timings claimed by P.W.1.

23) It is to be noticed that P.W.1 had nothing to do with

the work of P.W.1. It is rather surprising to note that P.W.1

claimed to have secured the presence of P.W.2 to the office of

A.O.2 and to the office of A.O.1 on 08.11.2003. It is further case

that P.W.2 was physically available along with P.W.1 before

A.O.2 on 08.11.2003 in the office of A.O.2 and also in the office

of A.O.1 on 08.11.2003. The very act of P.W.1 revealing the

presence of P.W.2 throughout as above even in Ex.P.1 shows

some doubtful circumstances. It is rather improbable that

officials like A.O.1 and A.O.2 in the presence of a third party

who has nothing to do with the claim of P.W.1 would go in

demanding a bribe. Apart from this, the answers spoken to by

P.W.1 and P.W.2 during the cross examination, shows any

amount of doubtful circumstances about the presence of P.W.2.

According to the evidence of P.W.1, at the office of A.O.1 on

18.11.2003 A.O.1 directed him to pay the bribe of Rs.10,000/-

to A.O.2 and also instructed A.O.2 to receive the amount. It is

his further case that after returning to Excise Station, Ponduru,

in a room, A.O.2 also demanded Rs.10,000/- additionally and

asked him to get Rs.20,000/-. Coming to the evidence of

P.W.2, he deposed as if A.O.1 asked P.W.1 to pay the demanded

amount either to him or to A.O.2. It is not the evidence of

P.W.1 that A.O.1 asked him to pay the demanded amount to

him also and in alternative to A.O.2. Initially, P.W.2 did not

support the case of the prosecution to the effect that in a room

in Excise Station, Ponduru, after returning from Srikakulam,

A.O.2 also demanded Rs.10,000/- additionally apart from bribe

demanded by A.O.1. As P.W.2 did not speak it, prosecution

cross examined him and he denied it. Later, during cross

examination of him by defence counsel, he deposed that after

they returned to the Excise Station, Ponduru, in the night, A.O.2

demanded the amount in his room. Hence, it is the case where

P.W.2 gave different versions from stage to stage. The only

piece of evidence available against A.O.1 insofar as the incident

happened on 08.11.2003 is concerned is that he demanded

P.W.1 at his office at Srikakulam to pay bribe of Rs.10,000/- to

him and asked him to give the amount to A.O.2. To probabalize

the defence theory of A.O.1, he got examined D.W.1 and D.W.2

and got marked several documents. According to D.W.1, Ex.D.4

copy of General Diary of Prohibition & Excise, Srikakulam,

Amadalavalasa and Narasannapeta, dated 18.11.2003.

Admittedly, the entries thereof reveal that A.O.1 was not

available in the headquarters at the purported time claimed by

P.W.1. Similarly, according to the evidence of D.W.2, on

08.11.2003, he, A.O.2 and his colleague S.I. Prasad and Head

Constable Appa Rao and three Constables left the police station

at 8-45 a.m., and went to Tullivalasa village in connection with

P.R.No.41/2003-04 from there they went to V.R. Valasa in

connection with I.D. liquor raids and again from there they went

to S.S. Puram for raids and returned to the police station at

about 8-30 p.m. Their duties were got mentioned in Ex.P.17,

dated 08.11.2003 in rough duty Register. Though there were

answers in the cross examination that the copies thereof were

not sent to Excise Superintendent, Srikakulam, etc., but, on

account of latches of the concerned, this Court cannot thrown

out the case of the defence. The standard of proof which the

A.O.1 was supposed to before the Court below was

preponderance of probabilities, but not proof beyond reasonable

doubt.

24) As pointed out above, the evidence of P.W.2

suffered with any amount of improbabilities and there were

sufficient circumstances to disbelieve his testimony. There was

no official work pending before A.O.1 on 08.11.2003 absolutely.

It goes against the case of the prosecution that A.O.1 demanded

P.W.1 on 08.11.2003 to pay the bribe.

25) The prosecution sought to prove the guilt against

A.O.1 by relying upon the post-trap events. Even it is not the

case of the prosecution that the amount was physically

recovered from the possession of A.O.2. It is relevant to make

a mention here that it is not the case of the prosecution that

A.O.1 directed P.W.1 to give the amount either to A.O.2 or to

the person as suggested by A.O.2. There is a delay in laying the

trap. When Ex.P.1 was said to be on 11.11.2003, trap could be

laid on after about one week i.e., on 18.11.2003. The case of

the defence before the Court below was that Ex.P.1 was not

presented on 11.11.2003. As seen from the endorsement of the

Special Judge for ACB & SPE Cases, Visakhapatnam, the F.I.R.

could be received on 18.11.2003 at 6-00 p.m., when it was

registered in the morning hours of 18.11.2003. The completion

of post-trap proceedings was just before reaching of F.I.R. to

the Court. It is to be noticed that Ex.P.1 literally discloses that

A.O.1 demanded P.W.1 to pay the bribe either to him or to any

other person as suggested. In my considered view, the very

contents of Ex.P.1 appear to be doubtful. The contention of the

Accused Officers before the Court below was that Ex.P.1 was

also ante-dated. These are all the doubtful circumstances

appearing from the evidence on record.

26) Coming to the events happened in post-trap, during

the course of cross examination P.W.1, deposed that he spent

time with A.O.2 for more than thirty minutes. It is his evidence

that after payment of the bribe to A.4, he made application

under Ex.P.2. The things alleged to be happened in succession

appears to be very doubtful as it is the case of the prosecution

that P.W.1 was directed to relay pre-arranged signal

immediately after the payment of amount. It is not known how

he could spend thirty minutes time with A.O.2. So, it is not the

case of the prosecution that soon after accepting the amount by

A.O.2 through A.4, he directed P.W.1 to present an application

in writing. Even Ex.P.2 application appears to be suspicious.

Therefore, the prosecution miserably failed to prove the

bonafidies of the post-trap proceedings and they cannot be

linked up with A.O.1. When there was no pendency of official

favour as on 08.11.2003 before A.O.1, it goes against the case

of the prosecution that he demanded P.W.1 to pay the bribe.

27) Coming to the evidence adduced against A.O.3 and

A.4 according to P.W.1 and P.W.2, A.O.2 demanded P.W.1 to

pay the bribe and when P.W.1 offered the same to A.O.2, he

directed the A.O.3 to receive the same and A.O.3 did not receive

it and asked A.4 to receive it and A.4 was hasten to receive it

and after some time only, he received the amount. So, it is not

a case where the amount was recovered from the possession of

A.O.3. The prosecution failed to prove that A.O.3 had knowledge

that official favour in respect of P.W.1 was pending with A.O.2.

Even according to the evidence in post-trap what happened

between A.O.2 and P.W.1 in the room of A.O.1 especially

relating to Ex.P.2 was not within the knowledge of A.O.3. The

evidence on record warrants this Court not to believe the case of

the prosecution that A.O.3 facilitated the commission of the

offence. Coming to the case of the prosecution against A.4, even

according to the case of the prosecution, A.4 refused to receive

the amount and ultimately he was compelled to receive it. He

was a private party, who had nothing to do with A.O.1, A.O.2

and A.O.3. A.4 need not explain as to why he was present there.

However, it is elicited that there was Ayyappa Deeksha and he

used to pass through Excise Police Station to attend Deeksha,

etc. Apart from this, A.4 contended that P.W.1 thrust the

amount into his left side shirt pocket. As evident from post-trap

proceedings, the denomination of currency notes more than

hundred i.e., 109 currency notes and it was said to be in two

bundles. It is rather improbable that such huge bundles could

be fit into the left side shirt pocket of A.4. Hence, A.4 was able

to probabalize the theory that those currency notes could not be

leisurely kept into the left side shirt pocket by himself. As

pointed out, absolutely, there is no link to prove that A.O.3 had

any relation to do with the official favour of P.W.1. The

prosecution failed to prove that A.O.3 and A.4 were the abettors

of the commission of offence.

28) Viewing from any angle, absolutely, there is no

convincing evidence adduced by the prosecution before the

Court below to prove the charges against A.O.1, A.O.3 and A.4.

In my considered view, the learned Special Judge for ACB & SPE

Cases, Visakhapatnam, rightly appreciated the evidence on

record and extended benefit of doubt to the Accused Officers.

Therefore, I see no reason to interfere with the judgment of

acquittal.

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

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 29.03.2023.

PGR

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

CRL. APPEAL NO.305 OF 2011

Date: 29.03.2023

PGR