K. Chandra Mohan Rao, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 4744 Tel

                   HON'BLE SRI JUSTICE K.SURENDER

                   CRIMINAL APPEAL No.1641 OF 2007
JUDGMENT:

1. The appellant/AO is convicted for the offence under Sections 7

and Section 13(1)(d) r/w 13(2) of the Act of 1988 of the Prevention

of Corruption Act, 1988 (for short "the Act of 1988") and sentenced

to undergo rigorous imprisonment for a period of one year under

both counts, vide judgment in CC No.36 of 2002 dated 21.11.2007

passed by the Principal Special Judge for SPE & ACB Cases, City

Civil Court at Hyderabad. Aggrieved by the same, the present

appeal is filed.

2. Briefly, the case of the ACB is that P.W.1 was a contractor

taking up private civil works. In the said process, he had taken up

the work order on 31.12.2000 from P.W.5, who is the owner of the

shop. The work order included providing three phase electricity

from the electricity department and costs as agreed included all the

other labour works. For the reason of changing the electricity

connection from Phase-1 to Phase-3, P.W.1 filed an application

Ex.P2 along with other documents on 17.01.2001 and thereafter,

met the appellant on 19.01.2001. The appellant directed P.W.1 to

be present at his site on 22.01.2001. However, the appellant did not

turn up. Again when P.W.1 met the appellant on 23.01.2001, the

appellant stated that he went to the said premises, however, P.W.1

was not available and demanded an amount of Rs.5,000/- as bribe

for providing additional load to the said premises and apart from

the said amount, P.W.1 had to pay Rs.8,000/- through Demand

Draft to the department and Rs.1,000/- towards security deposit.

P.W.1 again met the appellant on 25.01.2001, but the appellant

insisted that the bribe amount has to be paid. Aggrieved by the said

demand on 26.01.2001, P.W.1 lodged Ex.P6 complaint and the DSP

on receiving complaint, arranged to trap the appellant on

27.01.2001. On 27.01.2001, the pre-trap proceedings were

conducted around 7.00 a.m and thereafter, after concluding the

pre-trap proceedings, all the trap party members including P.Ws.1,

2, 3, Deputy Superintendent of Police-P.W.7 and others proceeded

to the office of the appellant. P.Ws.1 and 2 entered into the office of

the appellant around 9.40 a.m and went inside. P.W.1 gave the

amount of Rs.5,000/- on demand to the appellant, who received it

and kept the amount in the table drawer. Immediately P.W.1 came

out and signaled the trap party indicating acceptance of bribe by

the appellant. The trap party entered into the office and conducted

tests on the right hands of the appellant, which turned positive.

Thereafter the application which is Ex.P2 along with other

documents were seized during the proceedings and also the

attendance register. Post trap proceedings were concluded under

Ex.P10. Later, the investigation was handed over to P.W.8, who

investigated the case and filed charge sheet.

3. Learned Special Judge framed the charge for demanding and

accepting the amount of Rs.5,000/- from P.W.1 for giving three

phase connection against single phase connection. The prosecution

examined P.Ws.1 to 8 and marked Exs.P1 to P15 and Ex.D1, a copy

of lease deed was marked.

4. Learned counsel for the appellant submits that P.Ws.1, 3 and

4 did not support the case of the prosecution and they were treated

as hostile to the prosecution case. P.W.5 was the owner of the said

shop and P.W.5 did not lodge any complaint. Further, it was the

brother of P.W.5 namely Nageshwar Rao who was looking after the

affairs of the shop. He was the person who was instrumental in

getting the appellant entrapped. As seen from the evidence of P.W.1,

Nageshwar Rao, who is the brother of P.W.5 was present at the time

of complaint and also at the time of trap. Deliberately, the

prosecution has suppressed regarding the presence of the said

Nageshwar Rao and he was also present on the date of trap. P.W.3,

who is the applicant under Ex.P2 also stated that it was Nageshwar

Rao who had taken the application from P.W.3 and probably given

in the appellant's office. P.W.1 is no way concerned with three

phase connection and in fact, he has falsely implicated the

applicant. On the day of trap, the said amount was planted in the

table drawer of the appellant. For the said reason of the prosecution

not proving the demand, the appellant is entitled to be acquitted.

He relied on the judgment reported in the case of M.K.Harshan v

State of Kerala1 and argued that in similar circumstances, the

Hon'ble Supreme Court had acquitted the appellant. In the said

case also, the appellant therein was asked to touch the currency

notes and thereafter, the test was conducted. In the said

circumstances, the Hon'ble Supreme Court believed the version of

the appellant and acquitted the appellant.

1995 Crl.L.J 3978

5. On the other hand, learned Special Public Prosecutor

submitted that hostility of witnesses cannot be made basis to acquit

the appellant when the circumstances in such cases corroborate

the demand and acceptance of bribe by the appellant. He further

submits that the amount was recovered at the instance of the

appellant for which reason, presumption under Section 20 of the

Act has to be drawn. The appellant has failed to rebut the

presumption and for the said reason, the finding of the learned

Special Judge cannot be interfered with. He relied on the judgment

of Hon'ble Supreme Court in the case of Vinod Kumar v State of

Punjab2 and argued that though witness is treated hostile, the

evidence of such witness is not completely effaced and there is no

bar to base conviction on the basis of evidence of such hostile

witness, which corroborates the case of the prosecution.

6. Having perused the record, the following factors are

unexplained by the prosecution; i) The owner of the shop is P.W.5

and his brother namely Nagehswar Rao was the person who was

looking after the affairs of the shop, but the said Nageshwar Rao is

(2015) 3 Supreme Court Cases 220

not examined; ii) A statement was made by P.W.3 and according to

him, he handed over the application Ex.P2 to the said Nageshwar

Rao and the said application was made in the office on 15.01.2001

and there are entries on Ex.P2 dated 16.01.2001 and 17.01.2001.

However P.W.1 says that the application was filed in the office on

17.01.2001, which apparently is wrong; iii) Ex.P1 is a photocopy of

the work order and the original is not produced. As seen from

Ex.P1, the stamp was purchased on 2.11.1998, however, the

document work order is of 31.12.2000. The prosecution has failed

to prove why the work order as mentioned in Ex.P1 was given in

favour of P.W.1; iv) According to P.W.3, the appellant and Sub-

Engineer, Surender Kumar went to the shop on 23.01.2001 and

after inspection informed that the said premises was having wiring

of single phase from the panel board to the meter and also

internally it has to be changed to suit the thee phase electricity

service connection so that they can prepare the estimate and

submit the same to A.D office for sanction. Further, P.W.3 stated

that the appellant and the said Sub-Engineer urged him to inform

about the changing of wire in the shop. P.W.4 is the Assistant

Engineer, who inspected the shop along with the appellant on

23.01.2001. Admittedly, P.W.1 was not the applicant for changing

of meter in the electricity office. PW.4 also stated that Nageshwar

Rao, who is the brother of P.W.5 was also present in the office room

on the date of trap.

7. P.W.2 is the independent mediator who accompanied P.W.1 to

the office on the date of trap. However, P.W.1 alone entered into the

office of the appellant and P.W.2 stood at the entrance door of room

of the appellant. P.W.2 during his examination stated that he stood

near the entrance of the room and P.W.1 took the amount from his

shirt pocket and paid it to the appellant, who received it and kept

the same in his table drawer. P.W.2 stated that the DSP even prior

to conducting tests on the hands of the appellant had asked the

appellant to show the amount. P.W.2 stated twice during chief

examination that the DSP conducted test on the hands of the

appellant, after the amount was shown to be in table drawer.

Admittedly, the shop was not having wiring for fixing up of 3 phase

meter. Unless such wiring was changed, the question of giving three

phase meter permission and installing such meter does not arise.

P.W.3 is the applicant for change of meter. PW.5 and his brother

one Nagehswar Rao are the persons who are owners of the said

shop. Neither P.W.5 nor his brother have lodged any complaint

against the alleged demand of bribe. Engaging the services of P.W.1

under Ex.P1 also becomes doubtful. Without there being any

mention of specific costs that would be involved for the interiors,

electricity charges everything is given covered within 60,000/- as

stated in EXP1, which is highly improbable and that too on a stamp

paper which was two years old. It is highly improbable that the

applicant PW2, owner of shop PW5 and his brother Nageswar Rao

who was looking after the affairs of the shop were not informed

about the bribe. Further PW1 got the appellant by paying 8,000/-

out of his pocket, which cannot be believed in the present facts of

the case.

8. Money was also recovered from the table drawer. Ex.D1 is the

registered lease deed, which was given to P.W.5 on 16.08.1995. In

the registered lease deed, there is a clause- 'no structural alterations

in the premises including alterations or additional shall be made

without the previous consent of the lessor". There is no evidence that

is produced by the prosecution to show that the lessor has given

any consent for the alterations mentioned under Ex.P1.

Cumulatively, it is doubtful whether P.W.1 was granted such

contract work under Ex.P1. Neither the lessor nor the lessee P.W.5

nor the brother of PW.5 Nagehswar Rao, have approached the

electricity department for electric meter. The wiring necessary for

three phase meter was not done. P.W.4 and the appellant had

inspected the premises and instructed P.W.3 to undertake the

wiring changes. However, P.W.3 did not intimate either the

appellant or P.W.4 that the wiring has been changed.

9. As discussed above, the demand that was made by the

appellant becomes doubtful , more so, for the reason of the recovery

of the amount from the table drawer. PW.2, who is the

accompanying mediator has stated that the DSP had asked the

amount and it was taken out from the drawer by the appellant, as

admitted by P.W.2 in his cross-examination. The Hon'ble Supreme

Court in M.K.Harshan v State of Kerala (supra) found that the

accused touching the currency notes and thereafter DSP asking

accused to dip his fingers in the solution creates suspicion

regarding the version of the notes being put in the drawer. Similar

are the facts in the present case. For the aforesaid reasons, the

benefit of doubt is extended to the appellant.

10. In the result, the judgment of trial Court in CC No.36 of 2002

dated 21.11.2007 is set aside and the accused is acquitted. Since

the appellant is on bail, his bail bonds stand cancelled.

14. Accordingly, Criminal Appeal is allowed.

__________________ K.SURENDER, J Date:20.09.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1641 of 2007

Date: 20.09.2022.

kvs