Sri N. Rajendra Prasad, vs The State Of Ap Rep By Its Spl Pp ...
2022 Latest Caselaw 4746 Tel

         HIGH COURT FOR THE STATE OF TELANGANA
                          AT HYDERABAD
                                  *****

                 Criminal Appeal No.31 OF 2008

Between:


N.Rajendra Prasad                          ... Appellant

                          And

The State of Andhra Pradesh,
rep by Inspector of Police, ACB
City Range-II, Hyderabad.                  ... Respondent


DATE OF JUDGMENT PRONOUNCED: 20.09.2022

Submitted for approval.

THE HON'BLE SRI JUSTICE K.SURENDER


 1    Whether Reporters of Local
      newspapers may be allowed to        Yes/No
      see the Judgments?

 2    Whether the copies of judgment
      may be marked to Law                Yes/No
      Reporters/Journals

 3    Whether Their
      Ladyship/Lordship wish to see       Yes/No
      the fair copy of the Judgment?
                                             2




                   * THE HON'BLE SRI JUSTICE K.SURENDER


                                 + CRL.A. No. 31 of 2008



% Dated 20.09.2022




# N.Rajendra Prasad                                        ... Appellant



                                          And

$ The State of Andhra Pradesh,
rep by Inspector of Police, ACB
City Range-II, Hyderabad.                                  ..Respondent


! Counsel for the Appellant: Sri A.Hari Prasad Reddy


^ Counsel for the Respondent: Sri Ch.Vidya Sagar Rao

>HEAD NOTE:

? Cases referred
1
    (2009) 3 SCC 779

2 2015 (10) SCC 152

3 (2014) 13 SCC 55

4 (2011) 6 SCC 450

5 2013 (3) ALT (Crl.) (SC) 316

6 (2002) 10 Supreme Court Cases 371
                                      3


                HON'BLE SRI JUSTICE K.SURENDER

                 CRIMINAL APPEAL No.31 OF 2008
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 six months and

one year respectively, vide judgment in CC No.28 of 2003 dated

27.12.2007 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 prosecution is that the appellant was

working as Assistant Electrical Inspector, Standard Laboratory,

Mint Compound, Hyderabad. The defacto complainant was

possessing wireman permit. On 16.09.2000, he obtained

application form to get 'B' Grade Electrical Contractors Licence

from the office of the Secretary, A.P. Electrical Licencing Board,

Hyderabad. As per the requirement, a test certificate has to be

enclosed along with the application. P.W.1 paid challan of Rs.100/-

towards the testing fee. On 21.09.2000, he went to the Standard

Laboratory and on purchasing challan, he was issued instrument

testing application form. The said form was filled up by P.W.1 and

approached the appellant along with two instruments and

requested him to do the necessary test and submit the testing

report. To do the needful, the appellant demanded an amount of

Rs.650/- i.e., to conduct instrument test and forward test report.

Aggrieved by the said demand, a complaint was made on

27.09.2000. The trap was laid on 28.09.2000. On the trap date, the

trap party including P.W.1-complainant, P.W.2-independent

mediator, Inspector of Police, DSP and others met in the office of

ACB. After concluding pre-trap proceedings Ex.P7 report was

drafted. Thereafter, they proceeded to the office of the appellant.

P.W.1 went inside the office accompanied by P.W.2 at 12.35 p.m.

P.W.2 came out of the office and relayed signal indicating the

acceptance of bribe by the appellant. The Deputy Superintendent of

Police and others went into the office and confronted the appellant

regarding the bribe. The appellant was tested with sodium

carbonate solution which turned positive on both hands. When

questioned regarding the bribe amount, the appellant broke into

tears and produced the bribe amount.

3. After concluding the post trap proceedings under Ex.P13,

investigation was handed over to the Inspector. After conclusion of

investigation, charge sheet was laid for the offences under Sections

7 and 13(1)(d) r/w 13(2) of the Act. The learned Special Judge found

the appellant guilty of accepting the bribe amount and convicted as

stated supra.

4. The learned counsel for the appellant would submit firstly that

there is no evidence of demand, secondly, there was no official

favour which was pending with the appellant and thirdly, the

learned Special Judge erred in drawing presumption against the

appellant when the witness P.W.1 himself turned hostile to the

prosecution case and denied having given complaint. In support of

his contentions, he relied on the judgments reported in the cases of;

i) C.M.Girish Babu v. State of Kerala1; ii) P.Satyanarayana

Murthy v. State of A.P( F.B)2; iii) B.Jaya Raj v. State of A.P3; iv)

State of Kerala v. C.P.Rao4; v) Sujit Biswas v. State of Assam5;

(2009) 3 SCC 779

2015 (10) SCC 152

(2014) 13 SCC 55

(2011) 6 SCC 450

vi)Punjabrao v. State of Maharashtra6 and argued that i) in the

absence of demand, the ingredients under Sections 7 and 13(1)(d)

r/w 13(2) of the Act are not attracted. Mere recovery of the amount

divorced from the circumstances cannot be made basis for

conviction; ii) The version, though not given at the earliest point of

time, the version given at the time of Section 313 Cr.P.C

examination has to be considered.

5. On the other hand, learned Special Public Prosecutor submits

that at the earliest point of time, the money was recovered from the

shirt pocket, which indicates that the said recovery was pursuant to

the demand that was made by P.W.1. There is no necessity for

P.W.1 to falsely implicate the appellant. However, for the reason of

being won over during the course of trial, P.W.1 was declared

hostile to the prosecution case and cross-examined. The said

hostility will not have impact on the prosecution case for the reason

of the other attending circumstances collectively proving that the

appellant had demanded and accepted bribe. In the said

2013 (3) ALT (Crl.) (SC) 316

6 (2002) 10 Supreme Court Cases 371

circumstances, the well reasoned judgment of the Special Court

cannot be reversed.

6. P.W.1 who is the defacto complainant has disowned his own

complaint made to the ACB and refused to acknowledge the

contents of the complaint, for which reason, his signature on the

complaint was marked. The accompanying witness, P.W.2 who

went along with P.W.1 into the office of the appellant on the trap

day stated that the amount was not passed over from P.W.1 to the

appellant. However, the appellant had taken P.W.1 into another

room and in the said room money must have been paid. Admittedly,

P.W.2 is not a witness to the demand and acceptance of amount

from P.W.1. However, the money was recovered from the shirt

pocket of the appellant. The crucial aspect that has to be

considered in the present case is whether the prosecution has

established the factum of demand by the appellant.

7. P.W.1 stated that he did not give any complaint to ACB and

also he never met the appellant on 21.09.2000 or 22.09.2000.

Even on the trap date, P.W.2 was not a witness to the passing of

money by the appellant. He states that the said passing of money

has taken place in another room.

8. The appellant during the course of Section 313 Cr.P.C

examination stated that while he was talking to D.W.1, who was the

then Licenced Electrical Contractor present along with him on the

date of trap, P.W.1 thrust the amount into the pocket of the

appellant and immediately the ACB trap party accosted the

appellant and conducted tests. Though the said version was stated

before the DSP, the same was not incorporated in the second

mediators report.

9. The alleged demand was for the purpose of giving certificates

to P.W.1. P.W.3, who is the Assistant Electrical Inspector stated

that on 28.09.2000 while he was in the office, P.W.1 met the

appellant and asked about his test certificates. Then the appellant

informed that they were ready and it was with the Junior Assistant

namely Shaik Rafee. P.W.4, who was working as a Tester in the

appellant's office stated that he conducted tests of the instruments

of P.W.1 and the result was given on the same day. The test

certificates are Exs.P4 and P5. P.W.6 was the Junior Assistant in

the office of the appellant. As per Exs.P11 and P12, on 22.09.2000

itself, on the instructions of the appellant, he entered instrument

test result pertaining to P.W.1. On the date of trap the appellant

instructed P.W.6 to handover the certificates to P.W.1 as they were

ready. Accordingly, the said certificates were handed over to P.W.1

after taking acknowledgments Exs.P11 and P12.

10. From the evidence on record, the prosecution has failed to

prove that there was a demand that was made by the appellant for

the purpose of giving certificates for the instruments of P.W.1.

Admittedly, the said certificates Exs.P4 and P5 were in fact made

ready on 22.09.2000 itself and same were entered in Exs.P11 and

P12 register. In the said circumstances, it cannot be said that the

official work was pending with the appellant.

11. Though P.W.1 has turned completely hostile to the

prosecution case, the prosecution has failed to prove the demand

that was made by the appellant by circumstantial or direct

evidence. The prosecution further failed to prove that there was

official work that was pending before the appellant. Though,

according to the prosecution, the appellant failed to give any

explanation as on the date of trap and the money was recovered

from his shirt pocket, the same would not entitle the prosecution to

claim that the prosecution has proved its case. Mere recovery

divorced from circumstances cannot be made basis to convict the

appellant. In fact, the certificates were made ready five days prior

to the complaint made before the ACB. P.W.1 has totally refused to

acknowledge any kind of meeting with the appellant at any point of

time.

12. Though witnesses have turned hostile to the prosecution case,

that would not entail discarding the evidence of P.Ws.1 and 2 in its

totality but the entire case rests upon only the recovery aspect. On

multiple occasions, the Hon'ble Supreme Court held that once the

demand is not proved, any recovery which is not in consonance

with the facts of the case and circumstances, benefit of doubt has

to be extended to the accused. Accordingly, this Court is of the

considered opinion that the trial Court has erred in convicting the

accused officer. In the said circumstances of the case, benefit of

doubt is to be extended to the appellant.

13. In the result, the judgment of trial Court in CC No.28 of 2003

dated 27.12.2007 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 Note: LR copy to be marked.

B/o.kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.31 of 2008

Date: 20.09.2022.

kvs