Sri Rajashekar Reddy Rajashekar, vs State Of A.P., Rep By Spl.Pp.,
2022 Latest Caselaw 4953 Tel

             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.469 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 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.41 of 2003 dated 17.03.2008 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 Bill Collector in the Municipal Council,

Nizamabad District. The defacto complainant/P.W.1

constructed a house six months prior to the complaint. 15

days earlier to the complaint, the appellant went to the house

of P.W.1 and informed that Rs.1,500/- tax would be levied

after valuation. However, when P.W.1 requested, the appellant

demanded Rs.1,500/- and later reduced to Rs.1,000/- and

informed that the tax would be Rs.136/- if bribe is paid.

Accordingly, Rs.400/- was given ten days prior to the trap. Not

intending to pay remaining Rs.600/-, PW1 lodged Ex.P1

complaint with the DSP. P.W.1 was asked to get bribe amount

of Rs.600/- and also Rs.136/- towards tax as demanded by

the appellant. The said complaint was made on 14.04.2002

and the trap was laid on the next day i.e., 15.04.2002. The

trap party including complainant, independent mediators, DSP

and also Inspectors gathered at 7.00 a.m on 15.04.2002 and

after completing the formalities of laying trap, drafted Ex.P2

pre-trap proceedings and proceeded to the office of the

appellant at 8.45 a.m. When enquired, it was found that the

appellant was not present and he would be back around 4.00

p.m. All the trap party members went back to the office of ACB

and again returned at 4.00 p.m. At 4.05 p.m, P.Ws.1 and 2

entered into the office of the appellant and ten minutes later,

P.W.2 came out and gave prearranged signal to the trap party

indicating the acceptance of bribe amount. The trap party

entered and conducted sodium carbonate solution test on the

hands of the appellant and the right hand fingers of the

appellant turned positive. The amount of Rs.736/- was

recovered from the left side shirt pocket by the trap party.

After completion of investigation, the Inspector laid charge

sheet for the offences as stated supra.

3. Learned counsel for the appellant would submit that the

prosecution has failed to prove the allegation of demand.

P.W.1 has turned completely hostile to the prosecution case.

He did not support the prosecution even when his Section 164

Cr.P.C statement was recorded. At the time of recording his

Section 164 Cr.P.C statement on 20.05.2002, PW1 stated that

the amount of Rs.736/- was towards house tax amount and

also house tax of D.W.2-Ramakrishna. For the said reason,

the evidence of other witnesses is of no consequence. In fact,

P.W.2, independent mediator during post trap proceedings,

stated that he did not receive any bribe. D.W.2/Ramakrishna

is the person whose tax was to be paid, was examined and his

municipal tax receipt was marked as Ex.X1. D.W.1 was the

then Junior Assistant, who was present in the office on the

date of trap and when examined, he stated that the appellant

had persisted during trap and informed the trap party that the

said amount of Rs.736/- was the amount towards the tax of

P.w.1 and D.W.2.

4. In support of his contentions, he relied upon the

judgments 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)Punjabrao v. State of

Maharashtra4.

5. On the other hand, learned Special Public Prosecutor

submits that the evidence of P.W.2 is sufficient to infer that

the appellant had demanded bribe. The bribe amount was

recovered from the shirt pocket of the appellant and during

the course of post-trap proceedings, he did not say anything

about the house tax receipt of D.W.2 and the said version was

made up after the trap of the appellant. If the said amount

was received towards the tax of Ramakrishna/D.W.2, then

nothing prevented the appellant form stating so during post-

trap proceedings. He relied upon the judgment of Hon'ble

Supreme Court in the case of Sudip Kumar Sen alias Biltu v.

(2009) 3 Supreme Court cases 779

(2015) 10 Supreme Court Cases 152

(2014) 13 Supreme Court Cases 55

(2002) 10 Supreme Court Cases 371

State of West Bengal5 and argued that the solitary testimony

of a witness when reliable can be made basis to convict.

6. P.W.1 disowned the contents of the complaint and

completely turned hostile to the prosecution case. During the

course of his examination under Section 164 Cr.P.C before the

Court, P.W.1 stated that Rs.600/- was for the house tax of

D.W.2 and Rs.136/- was his house tax and at no point of

time, the appellant demand any money, when the amount of

Rs.736/- was given on the date of trap, according to P.W.1,

the appellant informed that the house tax was only Rs.430/-

and remaining amount of Rs.176/- has to be returned to the

said Ramakrishna/D.W.2. Immediately, ACB authorities

caught hold of the appellant and conducted some proceedings.

He reiterated the said version during the course of chief

examination in the court and also stated that the appellant

never demanded any amount.

7. Though, at the earliest point of time, the accused did not

come up with a specific defence and such defence not finding

place in the post trap proceedings will not in any manner

(2016) 3 Supreme Court Cases 26

affect the defence of an accused if found reasonable, which

defence is taken during the course of trial. The Hon'ble

Supreme Court in the case of Punjabrao v. State of

Maharashtra (supra), held that the statement of defence made

during Section 313 Cr.P.C examination can also be

considered, if it is found to be believable. In the instant case,

P.W.1 has refused to acknowledge the contents of Ex.P1 and

at the earliest point of time stated before the Magistrate under

Section 164 Cr.P.C statement that the said amount of

Rs.136/- was given towards tax and house tax of D.W.2.

D.W.1, who is the Junior Assistant in the said office has

stated that the appellant had in fact persisted when the ACB

trap party entered the premises and specifically informed that

the amount was towards two taxes i.e., P.W.1 and D.W.2.

D.W.2 also entered into the witness box and produced Ex.X1

house tax receipt showing an amount of Rs.429/-.

8. The argument of the learned Public Prosecutor that

recovery was made from the shirt pocket of the appellant has

to be considered as proof of demand and acceptance by the

appellant. There is no reason why the appellant has taken the

amount of Rs.736/- when the house tax Ex.X1 was not

produced by P.W.1 on the date of trap.

9. The Hon'ble Supreme Court in the case of N.Vijayakumar

v. State of Tamil Nadu6 and B.Jaya Raj v. State of A.P

(supra) held that unless the aspect of demand is proved by the

prosecution, the recovery, if any, from the accused cannot be

considered as proof of such demand. In the present case, since

the prosecution has failed to prove that the appellant had

demanded the amount, mere recovery from the appellant will

not entail the prosecution to claim that the prosecution has

proved the demand and acceptance. The appellant has

discharged his burden by producing evidence and that the

amount was recovered from him was towards house tax of

P.W.1 and D.W.2. The burden when shifts on to the accused

under Section 20 of the Act, the accused can discharge his

burden by preponderance of probability. The earliest version of

P.W.1 during Section 164 Cr.P.C statement, the evidence of

P.W.1, D.Ws.1 and 2 and Ex.X1 substantiate the claim of the

appellant. Further, P.W.2, independent mediator also stated

(2021) 3 Supreme Court Cases 687

that the appellant during post-trap proceedings stated that he

did not demand any amount.

10. In the said circumstances, the benefit of doubt has to be

extended to the appellant. The prosecution has failed to prove

that the appellant had demanded any amount. Merely, for the

reason of recovery of the amount from the shirt pocket of the

appellant, it cannot in any manner attribute 'demand and

acceptance' of bribe by the appellant.

11. In the result, the judgment of trial Court in C.C No.41 of

2003 dated 17.03.2008 is set aside and the accused is

acquitted. Since the appellant is on bail, his bail bonds stand

cancelled.

12. Accordingly, Criminal Appeal is allowed.

__________________ K.SURENDER,J

Date: 28.09.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.469 of 2008

Date:28.09.2022

kvs