APHC010304732007 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL APPEAL NO: 1062 OF 2007 Appeal under Section 374(2) of Cr.P.C against the Judgment, dated 07-08-2007 passed in C.C.No.86 of 2000 on the file of the Special Judge for SPE & ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam. Between: Sri S.A.S.Prakasa Rao, S/o.Suryanarayana, Senior Assistant, O/o. The Mandal Parishad Development Officer, Narsipatnam, Visakhapatnam. ...Appellant/Accused AND The State, rep. by Inspector of Police, ACB, Visakhapatnam. Rep. by Special Public Prosecutor, High Court of A.P., Amaravati. ...Respondent/Complainant Counsel for the Appellant: Sri O.Kailashnath Reddy Counsel for the Respondent: Sri S.Syam Sunder Rao, SC-cum-Special Public Prosecutor for ACB The Court made the following: 4 APHC010304732007 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] ■f’ ^ i ?-:r. ■ MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE ■M PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 1062/2007 Between: ...APPELLANT Sri S.A.S.Prakasa Rao AND ...RESPONDENT The State of AP Counsel for the Appellant: 1.0 KAILASHNATH REDDY Counsel for the Respondent: 1.S.SYAM SUNDER RAO SC cum Spl P.P. For ACB The Court made the following: 2 SRK,J Crt.A.No. 1062 of 2007 JUDGMENT Accused Officer (hereinafter referred to, as ‘AO’), in Calendar Case No.86 of 2007 on the file of the Special Judge for ACB Cases- cum-lll Additional District Judge, Visakhapatnam (for short ‘the learned Special Judge’), filed this Criminal Appeal challenging the Judgment dated 07.08.2007, whereunder and whereby he convicted of the offences punishable under Sections 7 and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 (for brevity ‘the PC Act, 1988’) and was sentenced to undergo rigorous imprisonment for a period of six (06) months and to pay a fine of Rs.500/- (Rupees five hundred only), in default, to suffer simple imprisonment for a period of one (01) month for the offence punishable under Section 7 of the PC Act, 1988 and was also was sentenced to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs. 1,000/- (Rupees one thousand only), in default, to suffer simple imprisonment for a period of two months for the offence punishable under Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988. Both the sentences of imprisonment were directed to run concurrently. 2. Sum and substance of the charges against the accused officer is that, he, being a public, servant, employed as r 3 SRK, J Cr1.A.No.1062 of 2007 Senior Assistant in the Office of Mandal Parishad Development Officer, Narsipatnam Mandal, Visakhapatnam District, demanded a bribe amount of Rs.900/- from P.W1, Contractor, and accepted the illegal gratification from him on 12.11.1998, for doing the official act of returning the eight demand drafts to P.W1 towards E.M.D in respect of the works in the Mandal Parishad Development Office, Narsipatnam, thereby the accused officer committed the offences punishable under Sections 7, 13 (2) read with 13 (1) (d) of the PC Act. Case of the prosecution, in brief, is that the accused officer worked as Senior Assistant in the Office of the Mandal Narsipatnam Mandal of 3. Parishad Development Office, Visakhapatnam District, as such as on 13.11.1998. P.W1 is a Contractor of Narsipatnam, Visakhapatnam District, doing contract works in Roads and Buildings, Irrigation and Panchayat Raj Departments; that in the month of August, 1988, P.W1 constructed two and half shops in Shirdi Complex, Narsipatnam Market and another contractor two and half shops in the same complex; that the construction was done up to slab level and for that, a sum of Rs.44,800/- was due to be paid to P.W1 by the Mandal Parishad Development Officer, Narsipatnam. (b) 4 SRK,J CrtA.No.1062 of 2007 (C) That on 07.11.1998 at about 10.00 a.m. P.W1 went to the Office of the Mandal Parishad Development Officer, Narsipatnam and met the accused officer and inquired about the payment of said amount; that the accused officer demanded that a cheque for a sum of Rs.29,000/- would be issued in favour of P.W1, if he agrees to pay about 3% of the cheque amount, as bribe amount; that when P.W1 replied that he had no much amount, the accused officer went into the office room of Mandal Parishad Development Officer, Narsipatnam and returned and asked P.W1 to pay an amount of Rs.900/- as bribe after encashing the cheque in the bank, for which P.W1 agreed; that accordingly, a cheque was issued and P.W1 encashed the cheque in State Bank of India Narsipatnam, but failed to pay the bribe amount to the accused officer. (d) That P.W1 submitted ten demand drafts in the month of September and October, 1998 towards E.M.D in respect of works in the office of the Mandal Parishad Development Officer, Narsipatnam; that P.W1 was sanctioned two works i.e. laying of roads in Mondikandi village vide Tender Notice Rc.No.96/98, dated 15.09.1995 for Rs.50,000/- and construction of five shops vide r^/ 5 SRK,J Ct1A.No.1062 of 2007 Tender Notice Rc.No.96/97, dated 02.10.1998 for Rs.95,000/-; that P.W1 yet to receive eight demand drafts from the office. That on 10.11.1998 at about 4.00 p.m. P.W1 met the (e) accused officer in the office, submitted an application, addressed to the Mandal Parishad Development Officer, Narsipatnam and requested for return of eight demand drafts; that the accused officer told him that on 07.11.1998, after encashing the cheque, P.W1 failed to pay the bribe amount of Rs.900/- as promised and unless and until the said sum of Rs.900/- is paid, the demand drafts would not be returned; that when P.W1 informed that his financial position was not sound and he would pay the amount later, the accused officer did not to heed his word and reiterated his demand and returned the application to P.W1; that P.W1 reluctantly agreed to pay the bribe amount to the accused officer. P.W1, having not interested to pay the bribe amount to the accused officer, lodged Ex.P2-report to P.W4, Deputy Superintendent of Police, ACB, Visakhapatnam against the accused officer on 11.11.1998. P.W4 registered the report as a case in Crime No.16/RC-WLR/98 for the aforesaid offences. Ex.P23 (f) is the original FIR; that P.W4 conducted and got prepared Ex.P7- Pre-trap Proceedings in the presence of L.W2-G.Venkateswara 6 ^ SRK, J Cri.A.No.1062of2007 Rao, Assistant Executive Visakhapatnam and P.W2, Visakhapatnam. Engineer, Municipal Corporation, Superintendent, Municipal Corporation, (g) That on 12.11.1998 at about 11.55 a m. the accused and accepted Rs.900/- officer was trapped when he demanded from P.Wl as gratification other than legal office of the Mandal Parishad remuneration in the Development Officer, Narsipalnam returning eight demand drafts for doing official favour in the matter of deposited towards E.M.D by P.Wl. (h) During the trap proceedings, P,W4 conducted chemical test to the hands of the result; that P.W6 prepared Ex.P21-Post-trap Proceeding accused officer and the test yielded seized the tainted positive currency notes and s, dated 12.11.1998; got (I) After obtaining Ex.P24-Sanction Order, dated PC Act, 1988 for 09-05.2000, prosecution of the under Section 19 (1) (c) of the accused officer and after completion of Prasad, Inspector of Police '^estigation, L.W.11-K.V.Ramakrishna ACB, Visakhapafnam filed for the offences charge sheet against the punishable under Sections 7 of Corruption Act, 1988. accused officer and 13 (2) read with ^0 (1) (d) of the Prevention 7 SRK, J Cr1.A.No.1062 of 2007 The learned Special Judge took cognizance of the offences under Sections 7 and 13 (2) read with 13 (1) (d) of the PC Act, 1988 against the appellant herein/AO. After furnishing copies of documents, charges for the aforesaid offences were framed against the appellant/AO, and read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. In order to prove its case, prosecution examined PWs.1 to 4 and got marked Exs.P1 to P24 and MOs.1 to 11. 5. After closure of the prosecution side evidence, the appellant/AO was examined under Section 313 CrPC, explained the incriminating circumstances appearing against him in the evidence of prosecution witnesses and he denied the same and got filed written statement. 6. It is the contention of the accused officer that during 1975 to 1981, the accused officer resided as a tenant in the house of one Kuracha Nookalamma, aunt of P.W1, at Narsipatnam and P.W1 used to visit the house of the accused officer, calling him and his wife as uncle and aunt, respectively; that P.W1 used to borrow small hand loans from him and his wife and same was continued even after P.W1 became a Civil Contractor. 7. 8 SRK,J Cri.A.No.1062of2007 (b) That in the month of July, 1998, P.W1 came to his office and asked loan of Rs.900/- and thereupon, P.W1 was asked to come on next day and collect from the wife of the accused officer and he also informed his wife to pay a sum of Rs.900/- to P.W1; that accordingly, P.W1 collected the amount of Rs.900/- from the wife of accused officer, but did not repay the loan even after lapse of three months. (c) That two eastern shops in the Block of 5 shops in Shirdi Sai Baba Temple Road, Narsipatnam market, was allotted to P.W1 and the estimated value for the said contract work Rs.70,000/- and the western side two shops were allotted to another contractor viz. Etamsetty Rambabu for the same estimated value and that, the middle shop was not allotted to anybody, therefore, the allotted 2 14 shops estimation of Rs.95,000/- is incorrect: that there was understanding between P.W1 and another contractor with the Supervisor and constructed the middle shop; that the shops were constructed up to lintel level; P.W1 and another contractor presented bills, each claiming Rs.44,800/- and odd for construction of 214 shops each and the accused officer scrutinized the bills and put up note to the MPDO and the allowable amount is only Rs.33,966/- and payable amount is Rs.29,284/-; that he also was 9 SRK,J Cri A.No.1062 of 2007 told P.W1 to pay the borrowed amount after encashing the cheque; that P.W1 developed grudge and on 07.11.1998, the accused officer handed over the cheque to P.W1 and another contractor too, but he did not demand P.W1 to pay the bribe amount; that on 10.11.1998 the tenders were opened at 4.30 p.m. and it went up to 6.00 p.m. and sometime later, P.W1 asked the accused officer for return of demand drafts in unsuccessful tenders, but did not submit Ex.P1-application to P.W11; that P.W1 encashed the cheque amount, but did not repay the borrowed loan amount of Rs.900/-. That on 12.11.1998 P.W1 came to his office and (d) handed over Rs.900/- saying that he was paying the loan amount and the accused officer took the money from P.W1 and informed that the amount would be repaid four months later; that half an hour later P.W1 left the office and thereafter, P.W4 DSP, ACB, came along with trap party and laid the present case; that P.W3 as not present during the trap proceedings and the accused officer was falsely implicated. On behalf of defence, D.Ws.1 to 4 were examined and 8. got exhibited Exs.DI to D4. 10 SRK.J Cri.A.No. 1062 of 2007 The learned Special Judge convicted the appellant/AO of the charges under Sections 7 and 13 (2) read with 13 (1) (d) of the PC Act, 1988 in terms of Section 248 (2) CrPC and sentenced him, as stated supra. Challenging the same, the present Criminal Appeal has been preferred by the appellant/AO. 9. Learned counsel for the appellant/AO would contend that there is inconsistency in the evidence of material prosecution witnesses and their evidence did not establish the demand made by the accused officer and presumption under Section 20 of the PC Act cannot be drawn basing on the circumstantial evidence. It is further contended that except the evidence of P.W1, there is no evidence to corroborate the evidence of P.W1 and therefore, the conviction cannot be based on the sole testimony of P.W1, which is full of inconsistencies. The learned counsel further contends that 10. the spontaneous explanation given by the accused officer, incorporated in Ex.P21-Post-trap Proceedings, establishes the defence taken by the accused officer and the same was substantiated with the evidence of D.W3, Retired Mandal Engineer, who deposed about the actual contract estimates amount that was allotted to P.W1. Therefore, the evidence of P.W1 is not wholly reliable and trustworthy to convict the appellant/AO, but these SRK, J Crl.A No 1062 of 2007 aspects have not been considered by the learned Special Judge in right perspective, and as such, prayed for acquittal of the appellant/ AO. Sri S.Syam Sundar Rao, learned Standing Counsel- 11. cum-Special Public Prosecutor for ACB would contend that the evidence of P.W1 is consistent and cogent with regard to demand made by the appellant/AO and on the date of the trap, the appellant/AO was caught red-handed while accepting the illegal gratification from P.W1 to do the official favour. The evidence of P.W2, Revenue Officer, Municipal Corporation, Visakhapatnam, who acted as one of the mediators on the date of trap, is cogent. consistent and corroborates the evidence of P.W1. He further contended that the evidence of P.W3, who worked as Mandal Cooperative and Rural Development Officer, MPDO Office Narsipatnam during the relevant point of time, establishesthat there is a demand made by the appellant/AO and such evidence coupled with the evidence of P.Ws.1, 2 and 4, proved that on the date of trap, the accused officer accepted the illegal gratification from P.W1 and consequently, tainted amount was recovered from the possession of appellant/AO and as such, the demand and acceptance are established beyond reasonable doubt. He further 12 SRK,J Crl.A.No.1062of2007 submits that the learned evidence on record i guilty of the offences, with which rightly convicted and sentenced interfere with the impugned judgment. Special Judge, upon considering the in right perspective, found the appellant/AO . he was charged and accordingly, him, and there are no grounds to 12. Now the point for consideration iis- ‘Whether the prosecution has proved its case against the appellant/AO for the charges leveled against him Ae. Sections 7, 13 (2) read with 13 (1) (d) of the 1988, beyond Judgment of the Prevention of Corruption Act, reasonable doubt, and whether the trial Court is legal correct and proper? 13. In order to attract an offence under Section 7 of the necessary ingredients to be established PC Act, 1988, the are that the appellant herein/AO is a public servant and that he than legal remuneration an official favour. Under Section accepted or obtained gratification other and the gratification was to do the PC Act, 1988, if by otherwise abusing his himself or for 13(1)(d) of a public servant, by corrupt or illegal means or position as public servant, obtains for any other person advantage, he is guilty of criminal mi any valuable thing or pecuniary misconduct punishable under Section 13(2) of the PC Act, 1988. 13 SRK.J Crt.A.No 1062of 2007 14. The appellant herein/AO was working as Senior Assistant in the office of the Mandal Parishad Development Officer, Narsipatnam Mandal, Visakhapatnam District, at the relevant point of time of the incident. Therefore, there is no dispute that he was a public servant within the meaning of Section 2 (c) of the PC Act, 1988. P.W1, who set the criminal law into motion by lodging 15. Ex.P2-report, reiterated the contents of his report in his examination-in-chief. In the cross-examination, P.W1 deposed that originally, the tenders were called for, for construction of two shops, but subsequently, construction of half of one shop was also allotted to him without calling for tenders. He exhibited Ex.P5-certified copy of M-Book, wherein it was mentioned that an amount of Rs.44,066.87 paise was due. He further deposed in his cross- examination that in 2000-2001, a shop was allotted to him basing on his tender and possession was given to him in the year 2003. He denied the suggestion that as the accused officer was coming in the way of his illegal activities, P.W1 gave false complaint. He also denied the suggestion that the accused officer was his neighbour during the year 1975. i4 SRK,J Crt.A.No.1062 of 2007 P.W1 further deposed in his cross-examination that he given work order for two shops only and two other shops given to L.W8-E.Rambabu and at that time, the middle shop left without being given to anybody: that during his contractorship, prior to the trap proceedings, he gave 10 demand drafts to the MPDO with a covering letter and the MPDO endorsed its receipt and kept in the office; that the tenders were opened from 10.00 a.m. to 1.00 p.m. on 10.11.1998. P.W1 identified Exs.P8 and P9-tender notices; that in Ex.P8, it was mentioned that the tenders opened at 4.30 p.m. on 10.09.1998; that the contractors were not given any amendment with reference to the time of opening of tenders; that he does not have an idea as to how many tenders were opened on 10.11.1998; that about twenty contractors attended on 10.11.1998 at the time of opening of tenders; that the MPDO declared to whom the tenders were granted, but papers were not issued to the declared contractors; that P.W1 was present at the office of the MPDO on 10.11.1998 up to 6.00 p.m. P.W1 specifically deposed that he had not given Ex.P1 to MPDO, but he gave it to the accused officer addressing it to the MPDO; that P.W1 had made bill for Rs.44,800/- and odd. P.W1 specifically deposed that when the accused officer told him that there were no grants for the work 16. was were was were 5 SRK, J Crl A No.1062 of 2007 allotted and the amount for a sum of Rs.29,000/- would be paid, he accepted to receive the said sum. According to him, he went to the MPDO Office on 6**^ and of November, 1998. P.W1 further deposed that on 07.11.1998, he along with another Contractor viz. L.W8/ E.Rambabu, who got constructed the other two and half shops, received Rs.29,000/- and odd. A perusal of the evidence of P.WI goes to show that 17. he gave ten demand drafts to the MPDO, Narsipatnam with a covering letter for the tenders called by the said office. It is the evidence of P.WI that he was successful for two tenders and he was sanctioned two works i.e. laying of roads in Mondikandi village vide Tender Notice Rc.No.96/98, dated 15.09.1995 for a sum of Rs.50,000/- and construction of five shops vide Tender Notice Rc.No.96/97, dated 02.10.1998 for Rs.95,000/-. As per the evidence of P.WI, the construction work of two and half shops out of five shops, was allotted to P.WI and remaining two and half shops were allotted to another contractor i.e. L.W8/E.Rambabu. The evidence of P.WI further goes to show that when the accused officer informed him that there are no grants for the work allotted to P.WI and only a sum of Rs.29,000/- would be paid for the present out of the bill for Rs.44,800/- submitted by P.WI, P.WI accepted to 16 SRK,J Cr1.A.No.1062of2007 receive the said sum of Rs.29,000/- and he denied the suggestion that he bore grudge against the accused officer as he was paid with only Rs.29,000/- when the bill was presented for a sum of Rs.44,800/- and odd. It is the specific evidence of P.W1 that right from 04.11.1998 he was demanding the accused officer to issue cheque and when there was no grants, he accepted the amount for a sum of Rs.29,000/- out of Rs.44,800/-. 18. A perusal of the evidence of P.W1 further goes to show that during the pendency of the present case, on 08.02.2006, he was offered a sum of Rs.1.00 lakh and he was threatened with dire consequences for withdrawal of the case and in that regard, he gave Ex.P22-report to the Deputy Superintendent of Police. Nothing could be elicited in the cross-examination of P.W1 by the learned defence counsel to establish that P.W1 got prior acquaintance with the accused officer and he borrowed amount from the accused officer and acceptance of amount from P.W1 on the date of trap, is only towards discharge of hand loan that was taken by P.W1 from the accused officer, but not to comply the demand made by the accused officer towards illegal gratification. P.W2, who worked as Superintendent, Municipal 19. Corporation, Visakhapatnam during the relevant point of time 17 SRK,J Cr1.A.No.1062 of 2007 deposed in his evidence with regard to P.W1 approaching the ACB Officials aggrieved by the demanding a sum of Rs.900/- towards bribe by the accused officer. His evidence is also with regard to procedure conducted for preparation of Ex.P7-Pre-trap proceedings, Ex.P21-Post-trap Proceedings, seizure of tainted currency notes from the possession of the accused officer and conducting chemical test to both hands fingers of the accused officer. Nothing is elicited in his cross-examination to establish that the procedure followed in conducting pre-trap and post-trap proceedings and recovery of tainted currency notes from the possession of the accused officer as not according to law. 20. The crucial witness that was examined by the prosecution in this case is P.W3, who worked as Mandal Cooperative and Rural Development Officer, MPDO Office, Narsipatnam during the relevant point of time. He deposed in his evidence that on 07.11.1998 at about 11.00 a.m., P.W1 came to the office and met the accused officer, who in turn demanded 1% for him and 2% for MPDO and thereupon, P.W1 was given cheque and stated to him to encash the cheque and pay the demanded bribe amount. He further deposed that P.W1 again came to his office on 10.11.1998 at about 10.30 a.m., and requested the accused officer 18 SRK,J CriA.No.1062of2007 to return the demand drafts submitted by him, as those works were not allotted to him and the accused officer stated that those demand drafts would be returned after payment of demanded bribe amount on 07.11.1998. P.W3 further deposed that again on 12.11.1998 P.W1 came to the office at 10.30 a.m. along with an application for return of demand drafts; that again the accused officer reiterated the earlier demand for bribe and thereupon, P.W1 gave Rs.900/- to the accused officer and later, within minutes, the ACB trap party entered into the office. 21. In the cross-examination of P.W3, learned defence counsel suggested to P.W3 that he was in the habit of interfering with others’ affairs and not attending the work in the office and misappropriating monies after collecting unauthorizedly, but it was denied by P.W3. He concedes that he was repatriated to his parent department by the MPDO, Narsipatnam vide RC No.36/2000, dated 16.05.2000; that the accused officer did not say anything, except to get the cheque encashed and to give the demanded money; that at that particular moment, the accused officer did not tell P.W1 about the amount of the bill claimed, or bill allowed or for how much amount cheque would be issued. 19 SRK.J Cf1.A.No 1062 of 2007 A perusal of the evidence of P.W3 goes to show that, his evidence corroborates the evidence of P.W1 with regard to the earlier demand made by the accused officer and also on the date of trap. P.W3 fairly conceded about the allegations that were initiated against him by the MPDO, Narsipatnam vide R.C.No.36/2000, dated 16.05.2000 with regard to repatriation to his parent department and vide R.C.No.36/2000, dated 25.05.2000 with regard to not remitting the amount of Rs.1,800/- collected from one Lanka Sankararao towards rent of coffee hotel from April, 1998 to March, 1999. Though, the learned defence counsel succeeded in eliciting the nature of work of P.W3, it is no way concerned to the case facts, for the reason that, the evidence of P.W3 coupled with the evidence of P.W1, corroborates the case of prosecution and it establishes that the accused officer demanded P.W1 to pay the bribe for returning eight demand drafts that were submitted to the MPDO, Narsipatnam in respect of the tenders called for, by the said office and in that process only, the accused officer accepted the illegal gratification from P.W1 for doing such official favour. P.W4, who worked as Deputy Superintendent of Police, ACB, Visakhapatnam Range at relevant point of time, deposed in his evidence about P.W1 giving Ex.P2-report on 11.11.1998 and 22. 23. 20 SRK,J Ci1A.No.1062of2007 he, registering Ex.P23-FIR, securing the presence of mediators and got preparing Ex.P7-Pre-trap proceedings and Ex.P21-Post-trap proceedings in the presence of mediators and recovering the tainted currency notes from the possession of the accused officer and conducting medical test to both hands fingers of the accused officer. Except suggestions with regard to manner of investigation conducted by P.W4, nothing is elicited from his cross-examinatio n by the learned defence counsel. 24. The accused officer got examined his wife as D.W1, who deposed in her evidence that the accused officer is her husband and they both resided in a rented house belonged to the relatives of P.W1 in the year 1975 and at that time, the age of P.W1 was 7 or 8 years. She further deposed that P.W1 was doing contract works and he used to visit their house during the period 1997 and he used to receive hand loans of Rs.lOO/- or Rs.200/- from her on number of occasions. It is her specific evidence that five or six months prior to the trap proceedings, the accused officer had given Rs.900/- to her and instructed her to give the same to P.W1 on his visit and accordingly she gave the aid sum to the accused officer on his visit to her house and the said sum was 21 SRK, J Cn.A.No.1062 of 2007 repaid by P.W1 to the accused officer on the date of trap and he implicated the accused officer in the present case falsely. In her cross-examination, D.W1 deposed that the 25. alleged borrowing of amount by P.W1 from the accused officer is oral and she had not noted the date of payment of amount to P.W1; that she does not know the purpose of borrowing the amount by P.W1 and she did not inquire either the accused officer or P.W1 about the purpose of lending and borrowing the amount. She further deposed that she does not remember the day, date and month of borrowing the amount by P.W1, but she deposed that the accused officer was trapped on 14.11.1998. D.W2, who was In-charge of MPDO, Narsipatnam deposed in his evidence about the procedure of calling, receiving, opening and accepting tenders. His evidence is also to the effect that the time and date of opening would be endorsed on each tender sealed cover.and if the tenders opening are adjourned, the 26. adjournment date would be informed to all the tenderers and also notice would be affixed in the Notice Board. His evidence further discloses that after receipt of summons, he went to Narsipatnam and searched for the called for records, but his evidence would reveal that the record was not traced and it was misplaced. 22 SRK,J Crt.A.No. 1062 of 2007 27. D.W3, who worked (Supervisor) in MPDO, Narsipatnam from his evidence that Ex.PS-certified contract work done by P.W1 and i as Mandal Engineering Officer 1996 to 2002, deposed in copy of M-Book pertains to Its estimate was Rs.70,000/- iin respect of construction of two shops in Shirdi Saibaba Temple road Eastern side market of Narsipatnam. deposit of demand drafts by the bidders He further deposed that the would be returned only after finalization ofteners. 28. D.W4 IS the accused officer, evidence that he collected Ex.D4 Calendar Case No. 10 of 2003 Judge for CBI Cases, Visakhapatnam. He deposed in his -certified copy of Judgment in on the file of the learned Special 29. Learned counsel for the would contend that the tainted appellant/accused officer amount that was seized from the possession of the accused officer is the amount due by P.W1 that was borrowed from the accused officer towards hand loan prior to gave spontaneous explanation with amount from P.W1 to the ACB is substantiated with the evidence the trap and the accused officer regard to acceptance of the tainted officials on the date of trap, which of D.WI. It is his submission that from the possession of mere recovery of tainted accused officer is not sufficient to money convict 23 SRK,J Cri A No 1062 of 2007 the accused when substantive evidence led by the prosecution is not reliable. He placed reliance on the proposition of law laid down in C.M.Girish Babu v. CBI, Cochin, High Court of Kerala\ wherein the Hon’ble Aped Court held as under (paragraph No. 18): “Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by Itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. ” Further, in Punjabrao v. State of Maharashtra^ the 30. Hon’ble Supreme Court held as under (Paragraph No.3): “...It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.” ’ (2009) 3 Supreme Court Cases 779. ^ (2002) 10 Supreme Court Cases 371. 24 SRK.J Crf.A.No. 1062 of 2007 31. In another case made in State through Inspector the Hon’ble Supreme of Police, AP u. K.Narasimhachary^, wherein Court held as under (paragraph No.24); “Having regard to the facts and circumstances of this case, we are of the opinion that two vi the view of the High Court I improbable; it cannot be said, in made hereinbefore, that the materials would lead to only accused.” views are possible and cannot be said to be wholly view of the discussions brought on record one conclusion i.e. the guilt of the 32. A perusal of the evidence of D.Ws.1 that, D.W1, being the wife of the interested witness. She Though the date of trap examination, D.W1 14.11.1998, but when she borrowed amount from the accused officer, to 4 goes to show accused officer, can be termed as was examined by the Court on 06.06.2007. was on 12.11.1998 in the cross- was able to depose the date of trap as was questioned as to when P.W1 she was not even able or month or even year of such borrowing. to depose either day, date No doubt, the accused officer ACB Officials gave spontaneous explanation to the on the date of trap, with regard to the amount that repayment of hand loan taken by P.W1 was accepted, as that of ^ (2005) 8 Supreme Court Cases 364. r i 25 ■f SRK,J Crl.A.No.1062of2007 from the accused officer and in order to substantiate the same, the accused officer got examined D.W1, who is none other than his wife. As per the evidence of D.W1, the amount that was borrowed by P.W1 was oral and there is no documentary proof. Therefore, it can be presumed that D.W1, being the wife of the accused officer, without there being any proof or evidence, came to the rescue of her husband to give force to the spontaneous explanation given by the accused officer to the ACB officials on the date of trap. The evidence of D.W1 is not wholly reliable and trustworthy. D.W4, the accused officer exhibited Ex.D4-certified 33. copy of Judgment in Calendar Case No.10 of 2003 on the file of the learned Special Judge for CBI Cases, Visakhapatnam to visualize the nature and character of P.W1 that he is in the habit of implicating the public officials in ACB cases. A perusal of the aforesaid Judgment goes to show that, the accused officer therein was working as Field Officer, State Bank of India and he was trapped on the ground that P.W1 was asked to pay bribe amount of Rs. 1,000/- for issuing a fresh demand draft to be drawn in favour of M/s. K.L.N.Prasad Agencies, Vijayawada by cancelling the earlier demand draft issued in favour of M/s. Sunil Engineering Company, Vijayawada. Admittedly, the said case ended in acquittal and the 26 SRK,J Cri.A.No.1062of2007 case facts, evidence led by the prosecution and the finding by the learned Judge in the said hand, at present. Mere filing another ACB arrived case is not relevant to the case on case by P.W1 against another public servant is not a ground to come to a conclusion that P.W1 is in the habit of filing ACB cases. 34. There is substantive evidence led by the prosecution which clearly establishes the guilt of the accused officer beyond reasonable doubt and their evidence did not make this Court to take two possible views, and the explanation offered by the officer is not at all established by evidence. Even soon after the accused any cogent and convincing pre-arranged signal made by P.W1, the trap laying party reached the office of the appellant/accused officer and conducted Sodium Carbonate solution test on both hand fingers of the accused officer, which proved positive. The tainted amount was also seized from the possession of the accused officer. In view of the same, the aforesaid contentions submitted by the learned counsel for the appellant have no legs to stand. 35. From the foregoing discussion, I am of the considered opinion that the learned Special Judge, on proper appreciation of the entire oral and documentary evidence on record and taking all the above aspects into consideration, has rightly found the accused 27 SRK, J Crl.A.No.1062of2007 officer guilty of the charges leveled against him and, accordingly, convicted for the aforesaid charges and I see no reasons to interfere with the same. 36. Accordingly, the Criminal Appeal is dismissed confirming the Judgment, dated 07.08.2007 passed in Calendar Case No.86 of 2007 by the learned Special Judge for ACB Cases- cum-lil Additional District Judge, Visakhapatnam. Consequently, miscellaneous petitions, if any, pending in this Criminal Appeal shall stand closed. Sd/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// 7^ SECT ON OFFICER To, 1. The Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam, Visakhapatnam District. (With records) 2. The Station House Officer, ACB, Visakhapatnam, Visakhapatnam District. 3. One CC to Sri O.Kailashnath Reddy, Advocate [OPUC] 4. Two GO'S to the Special Public Prosecutor for ACB, High Court of Andhra Pradesh at Amaravati [OUT] 5. The Section Officer, Criminal Section, High Court of A.P, Amaravati. 6. Two CD Copies BSV sree HIGH COURT DATED:28/04/2025 JUDGMENT CRLA No.1062 of 2007 ^0 5 JUL 2025 S^y^CyrrantSectigti^^ & m Co DISMISSING THE CRIMINAL APPEAL