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Andhra Pradesh High Court
Judges : ELIPE DHARMA RAO
MURALIKONDA - Appellant
Versus
State OF A.P. - Respondent
Decided On : 04-24-02
Prevention of corruption Act, 1988 - Sections 7 and 13 (1) (d) (i) and 13 (2) - Irrigation contract - Oral and documentary evidence - Recovered from the conscious physical possession - Guilty for the offences - Appeal Against Conviction - Sole accused-appellant herein, preferred this Criminalappeal aggrieved of conviction for the offence and sentence to suffer rigorous imprisonment for six months and imposition of fine of rs. 500/- in default to suffer simple imprisonment for three months for former offence and to suffer rigorous imprisonment for one year and to pay a fine in default to suffer simple imprisonment for six months for latter offence - Intended bribe produced by the complainant was treated with phenolphthalein powder and was handed over to complainant in the presence of PW3 and another with instructions to pay to appellant on demand; that on appellant is said to have demanded and accepted bribe at his office and was caught red-handed - Sodium solution test conducted over the right and left fingers of the appellant proved positive and tainted amount was recovered from the conscious physical possession of appellant - After obtaining sanction from appropriate authority appellant was charged - Appellant preferred this criminal appeal contending inter alia that when charge sheet shows that appellant demanded bribe on from complainant at the house of the accused, the learned Judge has erred in accepting interested testimony of pws. 1 to 8 and giving a total go bye to evidence of DWs. 1 to 3 that the bribe was demanded at the office on more particularly when the appellant was not present in the office on and was attending a conference at Nirmal 80 KMs. away from the place of demand, that the court below has erred in discarding the evidence of DW1 and Exs. D1 to D3 which clinchingly prove that the appellant could not have been at his office when he was attending conference at Nirmal –Held, Permission of superior officer he registered the case on but in cross-examination, he admitted that he has not obtained any instructions from his superior officer to register the case - It is also worth mentioning that the accused- appellant was not supplied with second mediators report, Ex. P11 which is supported by PW7 when he admitted suggestion that he did not give a copy of Ex. P11 to the accused. Ex. P11 also does not show any acknowledgment of the accused - Preponderance of probabilities in view of inconsistent evidence of the prosecution witnesses and rebuttal evidence of DW1 coupled with documents Exs. D1 to D3 and Exs. P13 and 14, irresistibly lead to conclusion that the accused-appellant has attended the meeting and thus eliminates possibility of demanding bribe amount for issuance of Registered Contractor proceedings to PW1 s father - Judge are based on surmises and conjectures and are not supported by clinching and satisfactory evidence - As stated earlier, when two views are equally possible it is view that favours the accused has to be adopted - Therefore, in view of the facts and circumstances of the case Court strongly believe that prosecution failed to prove beyond reasonable doubt aspect of demand of Rs. 500/- on two occasions for showing official favour to the father of pw1, by adducing cogent and convincing evidence - Criminal appeal is accordingly allowed
( 1 ) THE sole accused-appellant herein, preferred this Criminalappeal aggrieved of the conviction for the offence under Sections 7 and 13 (1) (d) (i) read with Section 13 (2) of the Prevention of corruption Act, 1988 ( for brevity the Act ) and sentence to suffer rigorous imprisonment for six months and imposition of fine of rs. 500/- in default to suffer simple imprisonment for three months for the former offence and to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for six months for the latter offence passed in CC No. 37 of 1992 on 12-7-1996 by the learned Principal special Judge for SPE and ACB Cases, hyderabad.
( 2 ) THE gravamen of the charge, in narrow compass, is that on 30-1-1991 the father of the complainant, Thakur Jogender singh, approached the appellant who was incharge Executive Engineer, Sathnala medium Irrigation Project, Adilabad District, with an application for issue of registered contract proceedings, as his father T. Ramchander Singh intended to take the irrigation contract, but the accused informed him that the proceedings will be issued in the month of June since the application was made at the fag-end of January, 1991. Thereafter, it is alleged that the complainant and his father made several visits to the appellant; that on 11-7-1991 the appellant is said to have demanded Rs. 500/- as bribe and also did not heed to the request of the complainant to reduce the bribe amount; that since the complainant was not intending to pay the bribe, on 16-7-1991 he approached Deputy Superintendent of police, ACB, Karimnagar at Gudihatnoor, who after due verification, registered a case in Cr. No. 2/acb/knr/91 under Sections 7 and 11 of the Act on 16-7-1991. The intended bribe produced by the complainant was treated with phenolphthalein powder and was handed over to the complainant in the presence of PW3 and another with instructions to pay to the appellant on demand; that on 17-7-1991 the appellant is said to have demanded and accepted rs. 500/- bribe at his office and was caught red-handed. The sodium solution test conducted over the right and left fingers ofthe appellant proved positive and the tainted amount of Rs. 500/- was recovered from the conscious physical possession of the appellant. After obtaining the sanction from the appropriate authority, the appellant was charged.
( 3 ) TO substantiate the charge, prosecution examined as may as 8 witnesses and marked Exs. P1 to P23 and MOs. 1 to 8. The plea of the appellant-accused was that the complainant-PW1 gave the amount stating that it was given by DW2, B. Shanker, which was borrowed by him as loan, and on his behalf DWs. 1 to 3 were examined and marked Exs. D1 to D4.
( 4 ) THE learned Judge on appreciation of both oral and documentary evidence found the appellant guilty for the offences charged, convicted and sentenced him as stated supra.
( 5 ) AGGRIEVED of the said conviction and sentence, the appellant preferred this criminal appeal contending inter alia that when the charge sheet shows that the appellant demanded bribe on 11-7-1991 from the complainant at the house of the accused, the learned Judge has erred in accepting the interested testimony of pws. 1 to 8 and giving a total go bye to the evidence of DWs. 1 to 3, that the bribe was demanded at the office on 11-7-1991, more particularly when the appellant was not present in the office on 11-7-1991 and was attending a conference at Nirmal 80 KMs. away from the place of demand, that the court below has erred in discarding the evidence of DW1 and Exs. D1 to D3 which clinchingly prove that the appellant could not have been at his office at 11-00 a. m. , on 11-7-1991 when he was attending conference at Nirmal. It is also contended that the learned Judge has not properly appreciated ex. P14 diary and Ex. P13 log book seized at the time of trap, which show that the appellant left Adilabad at 8. 30 a. m. , and returned at 4
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