S.Pandu Reddy, vs The Inspector Of Police Acb,
2022 Latest Caselaw 4839 Tel

               HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.1122 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 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.26 of 2003 dated 06.08.2007 passed by the

Additional 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 is the proprietor of

M/s.Nagapadma Engineering Works, Kukatpally of Ranga Reddy

District. Electricity connection was provided to his shop in the

month of June, 2001. On 30.08.2001, the capacitor was also fixed.

However, the capacitor surcharge was being included in the

monthly electricity bill. For the said reason, he approached the

Assistant Engineer on 19.10.2002 and submitted an application

stating his grievance of additional charges. The said letter was sent

to the Assistant Accounts Office (AAO) for adjusting the capacitor

surcharge bill. On 22.10.2002, P.W.1 met the appellant, who was

working as Upper Divisional Clerk (UDC) in the office of AAO. Again

P.W.1 met the appellant on 28.10.2002 on which date, the

appellant demanded an amount of Rs.2,500/- for adjustment of the

excess payments, however reduced the amount to Rs.1,500/-.

Aggrieved by the said demand of bribe, P.W.1 approached the ACB

and lodged a complaint on 29.10.2002 and the trap was arranged

on 30.10.2002.

3. The trap party which included the complainant, independent

mediators, DSP and Inspectors of ACB conducted pre-trap

proceedings in the office and drafted pre-trap proceedings under

Ex.P4. Thereafter, the trap party proceeded to the office of the AAO.

P.W.1-complainant and P.W.2-independent mediator went into the

office of the appellant. However, P.W.1 alone went inside the room

of the appellant whereas, P.W.2 was standing outside and after

some time, both the appellant and P.W.1 came out of the office.

P.W.1 asked P.W.2 to get a cover for keeping money. Accordingly,

P.W.2 brought a cover and gave it to the P.W.1. P.W.1 asked P.W.2

to sit in the appellant's office. P.W.1 passed on the bribe amount

kept in a cover to the appellant, who received with his right hand

and kept the cover in the right side hip pant pocket. P.W.1 then

relayed the signal to the trap party indicating the acceptance of

bribe by the appellant. P.W.9, DSP and other trap party members

accosted the appellant and conducted sodium carbonate solution

test on the hands of the appellant and the right hand solution

turned positive. After concluding the post trap proceedings and

seizure of concerned files, Ex.P7-post trap proceedings were drafted.

The investigation was then handed over to P.W.10-investigating

officer for the purpose of investigation.

4. Learned counsel appearing for the appellant submits that the

very basis for complaint is proved to be false as the electrical

surcharges were already adjusted on 28.10.2002 itself when P.W.1

allegedly met the appellant. The said fact was spoken to by the

prosecution witnesses i.e., P.Ws.3 to 6. When there was no work

pending with the appellant, the question of demanding bribe does

not arise. Further, P.W.8 who granted sanction was the then

Superintendent Engineer and was not competent to remove the

appellant from his service, for which reason, the sanction is bad in

law. He relied upon the judgment of this court in Crl.Appeal

No.1404 of 2007 in which case, the sanction granted by P.W.8 was

also the sanctioning authority in the said case. While disposing off

the appeal, this Court found that the sanction granted by P.W.8

therein was not proper as he was not the authority to remove the

officer from his service.

5. On the other hand learned Special Public Prosecutor submits

that official favour was pending with the appellant, for which reason

consequent recovery of money proves that there was a demand. He

further submits that it is not to the knowledge of P.W.1 that the

capacitor surcharge amount was already adjusted, for which

reason, it cannot be said that no official favour was pending. For

the reason of recovery that was made pursuant to demand

presumption is raised. However, the appellant failed to rebut the

presumption, as such, the finding of the learned Special Judge

cannot be interfered with. He relied upon the judgment of Hon'ble

Supreme Court in the case of Kanshi Ram v. State of Punjab

[(2005) 12 Supreme Court Cases 641], wherein the explanation

offered by the appellant was found not to be reasonable or

satisfactory and since the tainted money was in his possession,

presumption was attracted. As explanation was not sufficient to

rebut the presumption, conviction was found to be proper. In the

other judgment in the case of State of Andhra Pradesh v.

V.Vasudeva Rao [(2004) 9 Supreme Court Cases 319], the Hon'ble

Supreme Court reversed the judgment of acquittal. The Hon'ble

Supreme Court held that drawal of presumption is a compulsion.

The very fact that the accused was in possession of marked

currency notes and against an allegation of demand and acceptance

is "res ipsa loquitur" that is, recovery itself is enough to suggest

demand.

6. The basis for complaint is that there was excess billing for the

reason of adding capacitor surcharge. When P.W.1 met the

appellant on the date of demand i.e., 28.10.2002, the appellant had

completed his part of the job of adjustment of capacitor surcharge

in respect of P.W.1's firm. P.W.3-independent mediator admitted in

cross-examination that by 28.10.2002, the appellant had completed

his job of calculation and adjustment of capacitor surcharge in

respect of M/s. Naga Padma Engineering works, Kukatpally. The

recommendation of appellant was approved by the Junior Accounts

Officer as well as Assistant Accounts Officer on 28.10.2002, which

finds place in page Nos.112 and 113 of high value register that was

seized on the day of trap.

7. Similarly, P.W.6 admitted that on 28.10.2002 itself, the

appellant had put up a note in Ex.P11 register noting that that the

amount of Rs.12,129/-has to be withdrawn in favour of P.W.1's

firm. The appellant had completed his job as on the date of alleged

demand. If a demand was made, the official work, which is pending

before the appellant would have been held up for some reasonable

time. On the date of alleged demand when P.W.1 met the appellant,

the appellant had completed his job. The fact of completing his job

would be known to P.W.1 if an enquiry was made. Unless a person

is compelled to pay bribe, he does so to get his work done. Since the

work was already done on the date of alleged demand, the evidence

of P.W.1 becomes doubtful.

8. Learned Judge has found that the completion of job on

28.10.2002 itself was not known to P.W.1, for which reason, he had

lodged complaint on 29.10.2002. On the date of trap i.e.,

30.10.2002, the work of P.W.1 was already complete. If enquired,

the fact would have been known to P.W.1. Admittedly, the

concerned file was already sent to the Assistant Accounts Officer

and the reversal of surcharge was already done on 29.19.2002.

9. The conduct of P.W.1 on the date of trap is suspicious. At the

first instance when he entered into the office of the appellant, P.W.1

asked P.W.2 to stay at the entrance. The very purpose of DSP

asking P.W.2 to accompany P.W.1 is to lend credibility to the

version of P.W.1 that there was demand of bribe. P.W.2 was asked

to accompany P.W.1 to verify the correctness of the version of P.W.1

regarding the demand and also to seek corroboration from an

independent person. Contrary to the instructions of the DSP, P.W.2

stayed outside as instructed by P.W.1. Though, P.W.1 states that

the appellant asked for cover to place the bribe amount, the said

statement is doubtful. When the appellant had already asked for

money and P.W.1 indicated that he had brought the amount, there

is no reason why the appellant would ask P.W.1 to put it in a cover

and give it to him. Further suspicion is the conduct of P.W.1 who

asked P.W.2 to get cover and after getting cover, again asked P.W.2

to stay away. The reason for P.W.1 keeping P.W.2 outside the room

and not permitting him to view the transaction in between the

P.W.1 and the appellant is all the more doubtful. However, P.W.1

and the appellant went outside to the tea stall. Even then, P.W.2

did not accompany to Tea stall. It is the case of the appellant that

the amount, which was placed in a cover was thrust into his pant

pocket. The thrusting of amount by P.W.1 was stated by defence

witness D.W.2. The version of the appellant that the amount was

thrust in his pant pocket lends credibility when viewed in the

background of P.W.1 prohibiting P.W.2 to accompany him twice in

spite of the instructions of DSP. The conduct of P.W.1 itself shows

that he was waiting for an opportunity to thrust the amount into

the pant pocket of the appellant, failing which, peculiar conduct of

P.W.1 cannot be explained.

10. The sanction was granted by P.W.9, who was the

Superintendent Engineer. While dealing with the case in Criminal

Appeal No.1404 of 2007, it was found that PW.9 herein as the

Superintendent Engineer, also granted sanction in favouor of the

appellant therein. He was found to be not the competent authority

on his own admission. It was the Chairman and Managing Director

of AP TRANSCO, who was competent authority to grant sanction

and P.W.9 had admitted that he was not competent person to

remove the appellant from the service. Though no such specific

stand was taken by the appellant in the trial court, the ground can

be raised for the first time in the appeal before the appellate Court,

if it is demonstrated that prejudice was caused for not taking the

sanction from the competent authority. In the present case,

according to the documents that were seized on the date of trap

Ex.P11 and other documents would go to show that there was no

work pending with the appellant and it is found that the appellant

had already completed his work and sent the file for processing,

which was processed on 29.10.2002 itself. If the file was placed

before the competent authority, sanction might have been refused

for the reason of the appellant already completing his duty and no

official work was pending with him. For the said reasons, this court

finds that the sanction order Ex.P13 was not by the competent

authority and the appellant was prejudiced for the reason of not

placing the entire record before the competent authority, who on

facts, may have taken a different view and refused sanction.

11. For the reason of there being no official work which was

pending before the appellant and his job was already completed on

28.10.2002 itself, two days prior to the trap, the evidence of

demand becomes doubtful. As discussed above, the sequence of

events would clearly suggest that P.W.1 was waiting for the

opportunity of thrusting the amount. For the said reasons, benefit

of doubt has to be extended to the appellant.

12. In the result, the judgment of trial Court in CC No.26 of 2003

dated 06.08.2007 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: 22.09.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1122 of 2007

Date:22.09.2022.

kvs