The believability depends on the nature of explanation offered. In the instant case, the explanation pivots on Ex.D.2 document. Had this vital piece of evidence was not in the custody and reach of AO till it was produced in Court, no inference of manipulation can be drawn against AO, however it was admittedly said to be in his own custody and still it was not produced at the earliest point of time without any plausible reason. In such an event, the genuinity of Ex.D.2 cannot be accepted. Further, Ex.D.2 appears on a small piece of paper and contents appear to be typewritten in English and thereunder it is mentioned in the handwriting of PW.1 as itlu mee videyulu and beneath it, his signature and date as 16.02.2001 and within brackets Contractor are written. When PW.1 is an educated person, there is no reason why he did not write the contents of the receipt also in his handwriting. So the appearance of Ex.D.2 also throws doubt. 11) So on a conspectus of the facts, circumstances and evidence relating to Ex.D.2, no reliance can be placed on Ex.D.2. The cited decisions will not advance the cause of A.O. Therefore, it must be said that AO failed to rebut the presumption through the explanation offered by him. The trial court rightly convicted and sentenced him for the offences under Section 7 and 13 (1)(d) r/w 13(2) of P.C. Act and I find no merits in the appeal to set aside the judgment of the trial Court.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Criminal Appeal No.518 of 2006

19-01-2015

V. Venkataswamy.... Appellant

The State ACB, Warangal Range, Warangal Rep. by Spl. Public Prosecutor for ACB  
cases,High Court of Judicature, Hyderabad.. Respondent

Counsel for Appellant: Sri Badeti Venkata Rathnam

Counsel for Respondent  : Sri R. Ramachandra Reddy
                          Special Public Prosecutor for ACB
<Gist:

>Head Note:

? Cases referred:
1)      (2011) 6 SCC 450
2)      (2009) 3 SCC 779
3)      AIR 1980 Supreme Court 1558
4)      (2006) 1 SCC 401
5)      AIR 1976 Supreme Court 294(1)
6)      1972 Crl.L.J. 1293 (SC)
7)      AIR 2002 SC 486
8)      2003 (1) ALD (Crl.) 933 (AP)


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
Criminal Appeal No.518 of 2006
JUDGMENT:  
        This Criminal Appeal is preferred by the Accused Officer (AO)
aggrieved by the judgment dated 27.03.2006 in C.C.No.18 of 2002 passed by
learned Principal Special Judge for SPE & ACB Cases, Hyderabad
convicting him for the offences under Sections 7 and 13(1)(d) r/w 13(2) of
Prevention of Corruption Act, 1988 (for short P.C Act) and sentencing him
to undergo R.I for a period of one year and to pay a fine of Rs.1,000/- and in
default to suffer S.I for three months on first count and to undergo R.I for a
period of two years and to pay a fine of Rs.2,000/- and in default to suffer
S.I for six months on second count with a direction that the substantive
sentences of imprisonment under both counts shall run concurrently.
2)      The factual matrix of the case is thus:
a)      AOV. Venkata Swamy worked as Executive Officer (Endowments),    
in Sri Veerabhadra Swamy Devasthanam Temple, Kuravi Village and  
Mandal, Warangal District. According to prosecution, R.Ravinder Reddy
complainant (PW1) was eking out his livelihood by undertaking small
contracts.  In the month of June, 2000, he was entrusted with repairing work
of Kuravi Sree Veerabhadra Swamy Devasthanam for ensuing Jatara by
PW.3the then Executive Officer, Sri Kumara Swamy, and he had executed  
the work within a month and Deputy Executive EngineerSri D. Prabhakar
Rao, Endowments Department estimated it at Rs.15,847/- and out of it
Rs.4,000/- was already paid to PW.1 by the then Executive Officer in cash.
PW.4 succeeded PW.3 on his transfer as incharge E.O and later AO
succeeded him. On 21.12.2000, the AO has issued cheque for Rs.7,900/-,
leaving a balance of Rs.3,947/- and in that connection, PW.1 used to meet
AO and wander around him.  Atlast on 07.03.2001, during noon time, when
PW.1 met AO and enquired about the cheque for balance amount, AO  
questioned him that he did not pay any percentage earlier when he received
the amount and also despite allotting other Devasthanams contracts and
demanded him to pay a sum of Rs.1,000/- as bribe so as to issue cheque for
the balance amount of Rs.3,947/-, threatening him that in case his demand
was not met, he would delay the payments concerning other works entrusted
to him and that PW.1 would sustain loss and also asked him to get Rs.1,000/-
any day after ensuing Monday, then only he would write the cheque.
b)      Unwilling to pay bribe, PW1 submitted Ex.P.1complaint to DSP,
ACB, Warangal (PW8) on 08.03.2001 at about 11:00am, who registered the  
same as a case in Cr.No.9/ACB-ACB-WRL/2001 on 13.03.2001 at 8:00am    
and successfully laid a trap against AO on 13.03.2001 at his office. On
completion of investigation, charge sheet was laid against AO.
c)      On appearance of AO, charges under Sections 7 and 13 (1)(d) r/w
13(2) of  P.C. Act were framed against him and trial was conducted.
d)      During trial, PWs.1 to 9 were examined and Exs.P1 to P14 were
marked and MOs.1 to 8 were exhibited on behalf of prosecution. Exs.D.1 to
D.10 and Exs.X.1 to X9 were marked on behalf of defence.
e)      The AO filed written statement on 14.03.2005 contending that he
never demanded bribe amount from PW.1 and that PW.1 lodged a false  
complaint against him. He submitted that after he joined as Executive Officer
of Sri Veerabhadra Swamy Devasthanam, Kuravi, he worked sincerely and
implemented discipline among the staff and he issued memos to staff and
suspended several staff members.  He contended that PW.1 having obtained a
hand loan of Rs.1000/- from him on execution of Ex.D.2receipt dated
16.02.2001, while repaying it, got falsely implicated him in this case at the
instance of some other staff, who bore grudge against him. He lodged a
criminal complaint against some of the staff of Devasthanam and their
relatives for forcibly signing on the Attendance register for the period of
their
suspension and it was registered as Crime No.31/2001 in Mahabubabad Rural
P.S. and they were all arrested and remanded to judicial custody on
07.03.2001 and in reaction to said arrest and remand, the instant complaint
was lodged with the ACB on 08.03.2001 and he was implicated in a false
case and that the sequence of events that preceded the instant trap case
clearly establishes that the complaint lodged by PW.1 is definitely a
motivated complaint to harm him. He further submitted that he already
passed the dues of Rs.7,900/- and ordered to pay balance subject to receipt of
final orders from the Commissioner, Endowments, A.P, Hyderabad and noted
the same on Exs.P.5 and P.6 and further endorsed on note file directing
concerned clerk to put up a letter to the Commissioner for permission.
     He thus claimed that the complaint was motivated and he was
innocent.
f)      The trial Court on appreciation of evidence held that prosecution
proved the guilt of the accused beyond reasonable doubt and accordingly
convicted and sentenced the AO, as stated supra.
        Hence, the appeal by AO.
3)      Heard arguments of Sri Badeti Venkat Ratnam, learned counsel for
appellant/AO and Sri R.Ramachandra Reddy, learned Special Public
Prosecutor (Spl.P.P.) for ACB cases.
4)      Criticising the judgment of the trial Court, learned counsel for
appellant/AO argued thus:
a)      Firstly, he argued that no official favour was pending with AO so as to
make any demand.  He submitted that PW.3the earlier E.O entrusted the  
contract work to PW.1 without obtaining permission from the Commissioner,
Endowments and even paid an advance of Rs.4,000/- and after taking the
charge AO came to know this fact and so he endorsed on Ex.P.6note file
ordering payment of 3/4th of the contract amount, withholding the balance
1/4th amount to be paid after receiving orders from the Commissioner of
Endowments.  He also made a side order on the note file to put up a letter to
Commissioner of Endowments for permission.  Learned counsel vehemently  
argued that when the AO emphatically made it clear in writing that balance
amount should be paid to PW.1 only after receiving order from the
Commissioner of Endowments, there was nothing left in his hands to do any
official favour and therefore, absolutely there was no occasion for him to
demand bribe from PW.1.
b)      Secondly, denouncing the demand, learned counsel argued that AO
never demanded bribe as alleged and the theory of demand is only a
concoction made by PW.1 incited by some of the disgruntled staff of AO
who were suspended by him due to their misdeeds.  Learned counsel argued
that when the AO admittedly did not demand bribe while ordering payment
of 3/4th of the present contract amount and other contract amounts, it would
be highly unjust to impute that he demanded bribe for a petty balance amount
of Rs.3,000/- and odd.
c)      Thirdly, regarding further demand and acceptance of bribe on
13.03.2001 learned counsel argued that AO received the amount from PW1
as the loan amount due to him under Ex.D2 but not as bribe and he resonated
this fact twice during post-trap proceedings which was also incorporated in
Ex.P10second mediators report. However, the trial Court without
appreciating facts and evidence properly, rejected his spontaneous
explanation. Learned counsel argued that in the light of PW1 admitting his
handwriting and signature on Ex.D2, the onus of proof will be on prosecution
to establish that Ex.D2 was a fabricated document. He argued that the doubts
expressed by PW1 in his re-examination to the effect that earlier he submitted
a number of applications and letters in EOs office and the contents portion
of one of such letter or application might have been torn and on the space
available above the words itlu mee videyulu, the contents in Ex.D2 must
have been incorporated cannot be accepted for the reason that Ex.D2 contains
not only the admitted signature and handwriting of PW1 but also the date as
16.02.2001 and therefore, the burden lies on the prosecution to explain as to
what letter or application dated 16.02.2001 was submitted by PW1 in the
office of EO to enable AO to utilise the same for fabricating Ex.D2. The
prosecution miserably failed to show the nature of application/letter allegedly
submitted by PW1 on 16.02.2001 and therefore, it is not apposite to discard
Ex.D2 on the strength of doubt expressed by PW1. Learned counsel further
argued that mere recovery of money from the person of accused shall not be
taken in isolation to decide the guilt of the AO and on the other hand, if the
other surrounding circumstances are taken into consideration, they would
depict that some of the staff suspended by AO became disgruntled and
gheroaed AO on 16.02.2001 along with Sarpanch and PW1 and they were  
arrested on the compliant lodged by AO and hence they used PW1 to foist a
false case against AO. Learned counsel submitted that these back ground
facts would show that PW1 in collusion with his villagers implicated AO in a
false case and unfortunately the trial Court without proper appreciation of
facts and evidence convicted AO. He relied upon the following decisions to
buttress his argument that mere recovery of money divorced from
circumstances under which it was paid is not sufficient to convict the
accused:
1)      State of Kerala and another vs. C.P. Rao
2)      C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala
3)      Gulam Mahmood A. Malek vs. The State of Gujarat
4)      T. Subramanian vs. State of Tamil Nadu
d)      He further submitted that for the demand and acceptance of bribe
except the sole testimony of PW1 there is no other proof and PW1 being
highly interested since his relative was also one of the suspended employees
and he was amenable to co-villagers, his evidence cannot be accepted for
convicting the accused. He relied upon the following decisions to stress that
the evidence of interested or motivated witness shall not be believed without
corroboration by independent and reliable witnesses:
1)      Sat Paul vs. Delhi Administration
2)      Ram Prakash Arora vs. The State of Punjab
e)      Learned counsel for appellant argued that AO offered spontaneous
explanation and merely because he did not produce Ex.D2receipt
immediately after trap, on the ground alone his explanation shall not be
rejected. He submitted that even if an explanation was not offered
spontaneously, still the same can be considered if it is reliable though offered
at the stage of trial.  On this aspect he relied upon the following decisions:
1)      Punjabrao vs. State of Maharashtra
2)      S.V.S. Kodanda Rao vs. State of A.P
He thus prayed to allow the appeal.
5 a)    Per contra, learned Spl.P.P. while supporting the judgment firstly
argued that PW1 had no motive to implicate accused in a false case as
contended by AO and none of his relations was working in the EOs office
and suspended and hence he had no axe to grind against AO.  Except harping,
AO could not prove the alleged ill-motive for PW1 to foist a false case.  Even
the incident dated 16.02.2001 is concerned, PW1 had nothing to do with the
same and that was why AO did not include his name inEx.D7FIR.  
Moreover, even after incident dated 16.02.2001, AO paid amount to PW1 for
the works undertaken by him and PW1 issued Ex.X3receipt dt.26.02.2001.  
Further, admittedly AO allotted certain other contract works to PW1 as EO of
Kuravi temple. All these would show that there were no ill-feelings between
PW1 and AO. So, attribution of motive to PW1 is only a vain attempt on the
part of AO to wriggle out of genuine compliant given against him by PW1.
b)      Secondly, the pendency of official favour and demand are concerned,
learned Spl.P.P argued that as per PW1 the demand was made not only for
the paltry balance amount relating to present contract but also for passing
bills in other contract works and therefore, merely because AO proposed to
obtain permission from Commissioner of Endowments for releasing balance
amount, it cannot be said that no official favour was pending with him. He
argued that the pendency of official favour and demand are to be viewed in a
holistic manner rather than in isolation to the present contract work alone.
Regarding demand, he argued that since it became clear that PW1 has not
tried to implicate AO, his evidence touching the aspect of AO demanding
him bribe of Rs.1,000/- can be accepted and in fact the trial Court rightly
believed his evidence in that regard.
c)      Thirdly, regarding further demand and acceptance of bribe, he argued
that in this case the bribe amount was admittedly accepted by accused and it
was found with him therefore, presumption under Section 20 of PC Act
would follow. The spontaneous explanation offered by accused is concerned,
he argued that the same cannot be believed because he produced Ex.D2  
receipt only during trial but did not produce the same at the time of post-trap
proceedings or at the time of search of his house. Further, Ex.D2 ex-facie
would show that it is a fabricated document because on all the previous
occasions PW1 used to pass receipts in his own handwritings and as such
there was no need for him to sign on a typed receipt like Ex.D2. Further, he
had enough money because just few days prior to 16.02.2001 he received
amounts from AO towards his contract works and therefore, he had no
necessity to borrow paltry amount of Rs.1,000/-. Considering all these
aspects, the trial Court rightly rejected the defence plea and convicted him.
He thus prayed to dismiss the appeal.
6)      In the light of above rival arguments, the point for determination in this
appeal is:
Whether the judgment of the trial Court is factually and legally
sustainable?
7)      POINT: The precise accusation of prosecution is that AO being the
Executive Officer of Veerabhadra Swamy Devasthanam, Kuravi demanded  
bribe amount of Rs.1,000/- from PW1 who is the contractor for releasing the
balance amount of Rs.3,847/- relating to contract works entrusted to him in
June, 2000 by the then EO (PW3) and also for releasing the amounts
concerning to other contract works, AO refuted the charges and pleaded
innocence. Regarding allegation of further demand and acceptance of
Rs.1,000/- on the date of trap i.e. 13.03.2001, his explanation was that he
accepted the same towards repayment of loan amount taken by PW1 under  
Ex.D2-receipt.
a)      Before adverting to the findings of the trial Court on the aspects of
demand and acceptance of bribe and explanation offered by the AO, I
consider it apt to discuss whether the complaint lodged by PW1 with ACB
police is motivated to implicate him in a false case. According to AO, the
complaint was a motivated one.  As per his written statement, after he joined
as Executive Officer of Veerabhadra Swamy Devastanam, Kuravi he worked
sincerely and tried to implement discipline among the staff who were very
irregular and indisciplined prior to his joining. He issued memos and
suspended four staff members of Devasthanam. Ex.X9 is a memo issued to
PW2. Of the four suspended staff members N.Jagadishwara Rao and M.Somi  
Reddy are related to SarpanchN.Prasad Rao and PW1.  On 16.02.2001 the    
suspended employees along with some villagers and Sarpanch and PW1  
entered the office when AO was attending his work and waiting for arrival of
Regional Joint Commissioner in connection with an enquiry against him and
they gheroaed AO and the suspended employees forcibly signed in the
attendance register for the period of their suspension and further they
demanded to raise the suspension and pay the salaries.  Against their
atrocious acts, AO lodged a compliant in Cr.No.13/2002 in Mahabubabad
Rural Police Station vide Ex.D7FIR and the accused were arrested by the
police and enlarged on bail on 07.03.2001.  Thereafter all of them including
PW1 colluded together and dubbed the date of their release i.e. 07.0.32001 as
the date of first demand allegedly made by AO and PW1 lodged a false
complaint against AO on 08.03.2001. None of the facts in Ex.P1report is
true, since Ex.P1 is a motivated one. It is the further argument of AO that
PW1 in fact borrowed Rs.1,000/- on 16.02.2001 to meet the medical
expenditure of his son who was indisposed and on the date of trap i.e.
13.03.2001 he paid Rs.1,000/- towards repayment of loan and got him
trapped as if the said amount was bribe. In light of this argument, the facts
and evidence are to be scrutinized.
b)      When the contention of AO is scrutinized the motive alleged against
PW1 can be believed if it is established that one of his relations was
suspended by AO causing heart burn to him and the suspended employees  
prevailed upon PW1 to lodge a false complaint against AO to wreak-
vengeance against him. AO though not by strict proof, atleast by
preponderance of probabilities must bring forth the nexus between
suspending employees and PW1.  Atleast he must able to prove the presence
of PW1 along with mob on 16.02.2001 so as to infer that PW1 was one
among the participants. In that context the evidence of PW1 in the cross-
examination is pertinent.  He stated thus:
I know the entire staff of AOs office. I know M.Somi Reddy,
M.Jagadishwara Rao, Sri C.Srinivas and R.Narayana Rao, Jaya
Shanker and Sudhershan. Somi Reddy is not my relative. I have no
acquaintance with Prasad Rao who is Sarpanch of Korvi village. Only I
heard his name. I do not know Jagdishwar Rao is the brother of
Sarpanch. I learnt that Somi Reddy, Jagadishwara Rao, Srinivas and
Narayana Rao were suspended by the AO on 20.12.2000 but I do not
know whether he was suspended by the AO and whether it was on  
20.12.2000.  It is not true to suggest that on 16.02.2001 myself and all 4
of them along with Sarpanch went to the office of the AO and created
nuisance by abusing him and that the suspended officers forcibly signed
in the attendance register from the date of their suspension. I do not
know whether AO has given compliant in that connection against the
suspended clerks and the followers of the Sarpanch and whether the
Crime No.13/2001 of P.S. Mahabubabad Rural was registered and
whether they were sent to judicial remand on 07.03.2001. It is not true
to suggest that on account of that incident from the next day onwards in
collusion with the above staff members and the Sarpanch, I have lodged
Ex.P1 levelling all false allegations.
        So, from the above evidence it is clear that PW1 staunchly denied his
relationship with Somi Reddy one of the suspended employees.  He also
denied his acquaintance with SarpanchPrasad Rao.  Most importantly he
denied his associating with the suspended employees and Sarpanch and
going to the office of AO on 16.02.2001 and creating nuisance and abusing
the AO etc. facts.  Therefore, it must be said that nothing could be extracted
from the evidence of PW1 to substantiate that PW1 bore grudge due to the
suspension of employees and due to AO lodging complaint. Apart from this
denial, the AO in Ex.D7complaint has not at all included the names of
PW1 and Sarpanch as participants and even after investigation also the
police have not shown them as accused in Ex.D9charge sheet. So,  
absolutely PW1 is nothing to do with the suspension of employees and their
attacking AO on 16.02.2001. As rightly observed by the trial Court, from the
mere coincidence of date of demand i.e. 07.03.2001 with the date of arrest
and remand of four suspended employees, it cannot be readily inferred that
PW1 was incited by them to lodge a false complaint particularly when the
nexus between PW1 and accused in Cr.No.13/2001 was not even remotely  
established. Added to above, the record shows that even after 16.02.2001
there were work transactions between PW1 and AO evidenced by X3  
money receipt passed by PW1 in favour of AO on 26.02.2001.  Under Ex.X3
PW1 passed money receipt for Rs.13,000/-. Had PW1 participated in the
attack on 16.02.2001, certainly AO would not have paid money of
Rs.13,000/- on 26.02.2001. So, the motive alleged against PW1 has no legs
to stand.
c)      Then, official favour is concerned, it is the strong argument on behalf
of AO that as the predecessor of AO entrusted contract work to PW1 without
obtaining permission from Commissioner Endowments, the AO wanted to  
straighten the issue and so while ordering on Ex.P6note file for payment
of 3/4th of contract amount, he endorsed that balance amount will be paid
after receiving final order from the Commissioner Endowments and he also
made an order on the side note to put up a letter to the Commissioner for
permission. It is argued that the aforesaid order of AO would show that he
wanted to deal with the matter as per procedure and since he already made
such an order, nothing more was left with him to do official favour and so
the question of his demanding bribe does not arise.
d)      It is true that the order passed on Ex.P6note file would show that
while ordering payment of 3/4th of the contract amount he made it clear that
balance amount will be released on receiving orders from the Endowment
Commissioner. He also directed PW2 to put up a letter to the Commissioner
for permission. So, the point is whether by virtue of the above order, any
official favour was pending with AO. To answer this question, we should
verify the evidence of PW1 and Ex.P1 to know in what context AO
demanded bribe. As per the evidence of PW1 whenever he used to approach
AO for payment of balance amount of Rs.3,947/-, he used to postpone it on
one or other pretext. Thereafter on 07.03.2001 when he met AO he asked
him to give percentage in that amount by saying that he (PW1) had not given
any percentage in the bill amount already received and that he would allot
some more works to him and on that ground he demanded Rs.1,000/- as  
bribe for releasing the balance amount. Then, in Ex.P1 also PW1 mentioned
that when he met AO on 07.03.2001 and asked about his balance amount he  
stated that he did not give any percentage for the amounts already taken and
further he entrusted some more contract works and so if he pay Rs.1,000/-,
he would issue the cheque for the balance amount of Rs.3,947/- or otherwise
he would delay the payment of amounts concerning to other works and
thereby he would suffer loss. Therefore, the pendency of official favour and
demand are concerned, as rightly argued by Spl.P.P. we have to visualise in
holistic manner rather than isolating the present contract. It is no doubt, the
present contract is concerned, AO made an endorsement on Ex.P6 that the
balance amount would be paid after receiving the order from the Endowment
Commissioner.  However, that is not the only point to decide the issue.  PW1
was the contractor attending different contract works in Veerabhadra Swamy
Temple and AO was the Executive Officer. The demand of bribe was not
only for payment of balance amount concerning the present contract work
but also for entrustment of other works for smooth payment of the amounts.
Viewing in that broader view, it can be said that official favour was pending
with AO. Then demand is concerned, as stated supra, as per PW1 when he  
met AO on 07.03.2001 he demanded bribe of Rs.1,000/-. Demand was  
attacked firstly on the ground that when AO admittedly did not demand
bribe on previous occasions, it would be highly improbable to believe that he
would demand bribe for paying a paltry amount of Rs.3,947/-. Further, on
the aspect of demand except the interested and motivated testimony of PW1
there was no independent corroboration. I am unable to accept the argument
of AO. No doubt, AO did not demand bribe while ordering payment of 3/4th
of contract amount and also paying amounts covered by other contract
works.  However, that is not the end of the matter. When the evidence of
PW1 and Ex.P1 are scrutinized, we would know that AO demanded bribe  
for the past bills and also for paying the balance amount covered by present
contract work.  So, merely because he did not demand bribe on previous
occasions, it cannot be concluded that he was not a bribe monger. Then,
demand is concerned, no doubt, PW1 was the sole witness for demand said
to be made by AO and it is natural because nobody would like to make a
demand for bribe in the presence of others. Now, the veracity of the
evidence of PW1 is concerned, we have already discussed that there was no
ill-motive for PW1 to implicate AO in a false case and that AO failed to
establish such motive.  When such a motive is excluded, there can be no
hurdle to believe the evidence of PW1 on the aspect of demand made by
AO. His evidence is corroborated by Ex.P1complaint and also PW6  
mediator.
e)      PW6 deposed that when himself and Sarangam (LW10) approached    
DSP on 13.03.2001, he introduced PW1 to them and gave a copy of FIR and  
they have gone through FIR. They enquired about the contents of Ex.P1 with
PW1. He avouched the contents therein and as a token of going through the
copy of FIR, they attested on Ex.P8copy of FIR.  So, the evidence of PW6
would show that on their enquiry also PW1 narrated about the demand made
by AO and his giving compliant to ACB police. In this regard, the cited
decisions reported in Sat Paul and Ram Prakash Aroras cases (5 and 6
supra) will not help the case of AO.  As laid down in those decisions, there
can be no demur that evidence of interested and motivated witness should be
viewed carefully and if necessary corroboration has to be sought for from
independent reliable witnesses. However, in the instant case, PW1 being not
motivated, his evidence is reliable and further his evidence gets
corroboration from Ex.P1 and PW6.
8)      Then coming to further demand and acceptance of bribe, as per
prosecution on 13.03.2001 PW1 on the instructions of PW8 went to the
office of AO at about 11.30 AM and found AO in his seat talking with
pilgrims and he also found PW2the UDC and Sudharshan (LW3) working    
in their seats and so he sat and waited upto 12.30 PM. Thereafter, he told
AO that he wanted to go away. On that AO stated he was leaving to
Hyderabad and returning on the next day and after return from Hyderabad he
would issue cheque. Then AO enquired whether he brought the proposed
bribe amount and PW1 affirmed and then AO took PW1 inside the anteroom  
and there on further demand of AO, PW1 handed over the tainted amount to
AO which he received and counted and kept in his left side pant pocket.
Then, PW1 came out and gave pre-arranged signal and thereafter trap party
members rushed and caught hold AO and conducted further proceedings.  
This is precisely the prosecution version on further demand and acceptance
of bribe by AO. The prosecution in order to prove the aforesaid aspects
relied upon the evidence of PWs.1, 2, 6 and 8 coupled with Ex.P10second
mediators report.
a)      In this case, AO admits to have accepted the amount from PW1 but of
course, his contention as already narrated earlier is that on 16.02.2001 PW1
approached him at his house and took a hand loan of Rs.1,000/- for meeting
the medical expenditure of his ailing son and on the date of trap PW1
handed over the tainted amount as if he was repaying the loan contracted
under Ex.D2. So, the crucial point is whether the AO accepted the amount as
bribe as contended by prosecution or whether he innocently received the
amount towards discharge of loan. It should be noted that AO during the
post-trap proceedings twice stated that he received Rs.1,000/- from PW1
towards loan amount due to him and this fact was admitted by PWs.6 and 8
and incorporated in Ex.P10 also. Since PWs.6 and 8 are not the direct
witnesses for what has transpired between PW1 and AO before trap, their
evidence is not useful to clinch whether AO accepted the amount as bribe or
towards discharge of loan. Hence, the prosecution case on the aspect of
further demand and acceptance of bribe mainly pivots on the evidence of
PWs.1 and 2.
b)      PW1 in his evidence clearly stated that AO told him that he was going
to Hyderabad on next day and after returning from Hyderabad he would
issue a cheque and then enquired whether he brought the proposed bribe
amount and PW1 affirmed and thereafter AO took him to the ante-room
attached to his room and there, on his demand PW1 handed over the amount
which he received and counted and kept in his left side pant pocket.  So, as
per PW1 he accepted the amount only as bribe but nothing else.
c)      PW2Ch.Jayashankar who is a Senior Assistant in the EOs office is
concerned, his version is that on 13.03.2001 he and Sudharshan (LW3) and
AO were present in their office and PW1 came to their office at about 11.30
AM and at that time they were talking with the employees of electrical
department with regard to ensuing Jatara and PW1 sitting in front of the seat
of AO for about one hour and talked to AO and thereafter at first PW1 went
into the back room and AO also went inside of the room and 5 or 10 minutes
thereafter, PW1 came out of that room and went outside and AO sat in his
seat and within 5 minutes thereafter ACB officials came their and conducted
trap proceedings. So, the evidence of PW2 is to the effect that he witnessed
AO and PW1 going into the anteroom. This way the prosecution sought
corroboration from PW2. The AO sought to nullify the version of PW1
through loan repayment theory. PW2 is concerned, the contention of AO is
that PW2 and LW3 were not at all present in the office at the crucial time
and prosecution inducted them to give a colour of truth to its story and PW2
was enimically disposed of towards AO, since he issued Ex.X9charge
memo against him.
d)      In the light of above respective stands of both parties, it has to be
examined whether AO accepted the amount as bribe or towards discharge of
loan. Before that, since the demand aspect projected by the prosecution is
believed and since acceptance of the amount was admitted and also
established through the recovery of tainted amount from the pant pocket of
AO and chemical test conducted on his both hands and inner linings of the
pant pocket proved positive, the mandatory presumption under Section 20 of
PC Act shall follow to the effect that AO accepted the amount as motive or
reward for doing an official favour. Hence, it has to be seen whether the AO
could rebut the presumption through the explanation offered by him.  Before
scrutinizing veracity of his explanation it is apt to discuss the evidence of
PWs.1 and 2 regarding the nature of amount offered by PW1.
9)      As stated supra, PW1 emphatically stated that he paid the amount to
AO only as bribe on his further demand.  Further, in his cross-examination
he denied receiving any loan from AO. His evidence on this aspect is thus:
It is not true to suggest that I have received Rs.1,000/- as per the
contents in that typed receipt and signed in it (the witness volunteers)
whenever I received amount I would be passing a receipt in my own
hand.  Ex.D2 is the said receipt (marked for identification purpose and
only to the extent of signature of PW1). It is not true to suggest that on
16.02.2001 in the morning hours I approached AO at his house and
requested him to give a loan of Rs.1,000/- as my son was unwell and the
AO has given that amount and obtained Ex.D2.  On the day I gave 164
Cr.P.C. Statement, before I went to the Court the AO has telephoned me
and threatened me that he has got receipt and I should not give
statement adverse to him. Then only I came to know about Ex.D2. It is
true I have mentioned in 164 Cr.P.C. statement that AO has threatened
me that he got receipt that I have taken loan and that he would get a
case booked against me for getting him falsely implicated and according
to me it is a false receipt which I have mentioned in it.
    x x x x
He further deposed thus:
It is not true to suggest that Ex.D2 is a genuine receipt passed by me
and to overcome it, I have concocted a story and thereby even referred
that story in my 164 Cr.P.C. statement.  It is not true to suggest that
even on the date of trap the AO has received an amount of Rs.1,000/-
and that I told him that I was returning that amount as the amount
borrowed from him and that he asked me to come on that evening to
pass a receipt and thereafter only I came outside the office. It is not true
to suggest that myself and AO did not at all go into ante-room and that
at that time myself and AO alone were present in his office room and
Jayashanker and Sudharshan were not at all present in that room. It is
not true to suggest that the suspended staff and Sarpanch instigated me
having paid me Rs.10,000/- to lodge false complaint and to get the AO
implicated falsely by arranging the instant trap.
a)     So, when the above cross-examination is perused, it is clear that
nothing specific was extracted from PW1 to make him admit that the amount
was paid towards discharge of loan contracted under Ex.D2. What all
extracted was that even after knowing before giving 164 Cr.P.C. statement
that AO was in possession of Ex.D2, PW1 has not taken any steps and ACB  
officials have not investigated in those lines. Merely because they have not
done these acts, the veracity of evidence of PW1 will not be affected and
authencity of Ex.D2 will not be established particularly, when AO failed to
establish any motive for PW1 to foist a false case against him. So, at the
outset there is nothing on record to discard the evidence of PW1.
b)      PW2 is concerned, as stated supra, AO disputes about the very
presence of PW2 and LW3 at the office of AO at the crucial time.  It must be
said that this argument does not have teeth.  The trap took place in the office
of AO on a working day and during working hours.  PW2 and LW3 being
the employees of AO their presence in the office is a natural phenomenon.
Further, Ex.P7attendance register shows that both PW2 and LW3 signed  
on 13.03.2001 indicating their attending the office. Further, as observed by
the trial Court, in Ex.P11-sketch the seats of PW2 and LW3 are mentioned
near the seat of AO in the same room and Ex.P11 is not controverted.
Above all, in Ex.P10 it is mentioned that the TLO examined PW.2 and LW.3
and recorded their statements during post-trap proceedings.  Both of them
signed on Ex.P.10. Therefore, in my view, the presence of PW.2 and LW.3
at the crucial time need not be doubted.  As rightly observed by the trial
Court, if really TLO wanted to project the presence of PW.2 and LW.3 at the
time of trap despite their absence, he can only plan it subsequently but
cannot incorporate their presence instantaneously while preparing Ex.P.10.
It is difficult to get their signatures on Ex.P.10 in their absence.  Further,
if
he falsely mentioned their presence in Ex.P.10, the AO while endorsing
receipt of copy of Ex.P.10 would certainly protest about it.  However, AO
did not make any such protest but simply acknowledged the receipt of copy
of Ex.P.10.  All these would avouch the presence of PW.2 and LW.3.  So the
evidence of PW.2 proves a vital circumstance connecting to the case about
PW.1 and AO going to rear room and after few minutes their coming out and
then PW.1 going out of the office.  Their conduct gives scope for suspicion.
Had PW.1 only to repay the loan amount, there was no need for AO to take
him to the rear room. Here, with regard to the veracity of PW.2, it is
contended that AO issued charge memo against him under Ex.X.9 and  
subsequently placed him under suspension and hence out of spite PW.2
deposed falsehood to help prosecution as if AO and PW.1 went into the rear
room.  In my view, this argument was effectively dealt with by the trial
Court with reference to Ex.X.9file and conduct of AO after trap.  It is true
that AO issued charge memo dated 23.01.2000 directing PW.2 to submit his
explanation within 7 days and PW.2 received the memo on 23.12.2000.
However, record shows that he did not submit his explanation till the date of
trap and AO too, it appears, did not take any further action.  However,
surprisingly on 15.03.2001 i.e, immediately two days after trap, AO issued
another memo dated 15.03.2001 directing him to submit explanation within
7 days and placed him under suspension.  As rightly pointed out by the trial
Court, the very fact that within a couple of days after the trap, AO placing
PW.2 under suspension having kept mum for about 2  months shows that  
merely because of the memo dated 23.12.2000, PW.2 did not entertain any
grudge to speak falsehood against AO but on the other hand due to the
statement of PW.2 in Ex.P.10, AO suspended him within two days after the
trap.  So the evidence of PWs.1 and 2 projects a strong circumstance that the
amount paid by PW.1 to AO was towards bribe but not towards discharge of
loan.
10)     Now coming to the defence explanation, the same is not believable
because of the different reasons cogently cited by the trial Court.
a)      As rightly pointed out by the trial Court, just few days prior to
16.02.2001, AO paid contract bill amounts to PW.1.  On 12.02.2001, PW.1
received Rs.10,000/- (vide Ex.X.1receipt) and on 15.02.2001 i.e, a day
prior to the alleged loan transaction, again PW.1 received Rs.7,000/- (vide
Ex.X.2receipt). In such circumstances, when PW.1 was having money  
with him, it would be highly improbable to believe that he would borrow a
paltry sum of Rs.1,000/- on the morning of 16.02.2001 from AO. Further,
AO is the Executive Officer and PW.1 is a Contractor and it is difficult to
believe they have such intimacy to borrow loan. This is one of the strong
circumstances belying the loan theory.
b)      The next circumstance is that during the trap proceedings though AO
proclaimed that he received amount from PW.1 towards the discharge of
loan, surprisingly he did not whisper about Ex.D.2receipt.  Assuming that
in the charged circumstances he forgot to bring to the notice of trap party
members about Ex.D.2, nothing prevented him to show Ex.D.2 to them
during his house search conducted after trap on the same day.  In my
considered view, that was the proper time to divulge about the Ex.D.2, if it
were really in existence. Instead he belatedly mentioned about Ex.D.2 during
his explanation under Ex.D.4. Be that it may, he divulged about Ex.D.2
before Court only during trial. The conduct of AO concerning Ex.D.2
creates any amount of doubt regarding the genuinity of Ex.D.2.  It is true
that merely because an accused failed to offer a spontaneous explanation
regarding his possession of the bribe amount, the same cannot be rejected on
the ground that it was offered belatedly during trial, provided the
explanation is believable.  Similarly, when an accused offered spontaneous
explanation but failed to produce spontaneous proof in support of his
explanation, the same cannot be rejected when the proof is produced during
trial if the said proof is believable. So the believability of the explanation
is
important. The believability depends on the nature of explanation offered. In
the instant case, the explanation pivots on Ex.D.2 document.  Had this vital
piece of evidence was not in the custody and reach of AO till it was
produced in Court, no inference of manipulation can be drawn against AO,
however it was admittedly said to be in his own custody and still it was not
produced at the earliest point of time without any plausible reason.  In such
an event, the genuinity of Ex.D.2 cannot be accepted.  Further, Ex.D.2
appears on a small piece of paper and contents appear to be typewritten in
English and thereunder it is mentioned in the handwriting of PW.1 as itlu
mee videyulu and beneath it, his signature and date as 16.02.2001 and
within brackets Contractor are written.  When PW.1 is an educated person,
there is no reason why he did not write the contents of the receipt also in his
handwriting.  So the appearance of Ex.D.2 also throws doubt.
11)     So on a conspectus of the facts, circumstances and evidence relating
to Ex.D.2, no reliance can be placed on Ex.D.2.  The cited decisions will not
advance the cause of A.O. Therefore, it must be said that AO failed to rebut
the presumption through the explanation offered by him.  The trial court
rightly convicted and sentenced him for the offences under Section 7 and 13
(1)(d) r/w 13(2) of  P.C. Act and I find no merits in the appeal to set aside
the judgment of the trial Court.
12)     In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court in C.C.No.18 of 2002.
Consequently, appellant/AO is directed to surrender before the trial Court on
or before 09.02.2015 and on such surrender, the trial Court shall commit him
to jail for serving sentence.
        As a sequel, miscellaneous applications pending, if ay, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 19.01.2015

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