Point of Law: factual presumption can be drawn with the available evidence and in that process, the illustration (a) of Section 114 of Evidence Act which says that ‘a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing that to be stolen unless he can account for his possession’ can be profitably used

JUDGMENT :

Aggrieved by the judgment dated 08.04.2008 in C.C.No.07 of 2004 passed by learned Special Judge for SPE & ACB Cases, Vijayawada, convicting the accused for the offences under Sections 7 & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short, ‘PC Act’) and sentencing him to suffer simple imprisonment for one year and pay fine of Rs.1,000/-on two counts, the accused officer (AO) preferred the instant criminal appeal.

2. The factual matrix of the case is thus:

(a) AO worked as Assistant Engineer in A.P.S.P.D.C.L. in Musunur Section of Nuzvid Sub Division, Krishna District from 18.08.2000 to 08.03.2003 and he is a public servant.

(b) PW3 – the complainant, who owns Acres 3.68 cents of agricultural land in the name of his son PW2, gave an application for electrical connection to the bore in his lands by paying the necessary fee and taking DDs for Rs.5,000 and Rs.125/-in the name of Deputy Electrical Engineer, Gudiwada and also sent copy to the AO and gave necessary papers to him, but AO did not give an acknowledgement. When PW3 met him, AO demanded Rs.2,000/-as bribe for preparation of estimates. In spite of repeated requests, the AO did not listen him and reiterated his demand for bribe. Finally, on 05.03.2003 in the evening at about 05.00 p.m., PW3 met in his office and again AO reiterated his demand of Rs.2,000/-and instructed PW3 to pay the bribe amount at his house on the morning of 07.03.2003. Unwilling to pay bribe, PW3 gave Ex.P3 written report to PW7 -DSP, ACB, Vijayawada, who after causing discrete enquiries about the antecedents of the AO as well as PW3, registered FIR in Crime No.7/RCT-ACB-VJA/2003, for the offences under Sections 7 and 13 of PC Act under Ex.P12. He followed pre-trap procedure in the presence of the mediators i.e., PW4 and LW6 – N.Moses and laid trap against AO on 07.03.2003 at the house of AO and as per the instructions of PW7, the complainant went to the house of AO and paid the bribe amount to him and came out and gave prearranged signal. Then, the trap party led by PW7 rushed to the house of AO and caught him red-handed and recovered the tainted amount of Rs.2,000/-from his possession. The right hand fingers of AO proved positive to the chemical test conducted by PW7. Thus, after completing formalities and investigation, charge sheet was laid against AO.

(c) AO was granted bail and he was defended by his counsel. The trial court framed charges under Sections 7 and 13(2) r/w 13(1)(d) of PC Act against the AO and conducted trial. During trial, PWs 1 to 7 were examined and Exs.P1 to P7 were marked and M.Os.1 to 5 were accepted on behalf of the prosecution. On behalf of defence, D.Ws. 1 to 3 were examined and Exs.X1 and X2 were marked. It should be noted that during trial, PW3 the complainant has given a volte face and did not support prosecution case. The essence of his evidence was that AO did not demand him bribe and that as per the advise of one Radha Krishna, Politician, he gave report to DSP but on the date of trap, he went to the house of AO and paid the amount to him saying that as per the instructions of one Suresh, he was paying the amount and AO instructed him to take back the amount but he came out. However, the trial court having regard to the other oral and documentary evidence, particularly the evidence of PW4-the mediator, PW7 – Trap Laying Officer (TLO) and also considering the circumstance that the right hand fingers of the AO showed positive result to the chemical test, has held that the prosecution has established the demand and acceptance of the bribe by AO beyond reasonable doubt and accordingly, convicted and sentenced him as stated supra.

Hence, the criminal appeal.

3. Heard learned counsel for appellant and learned Special Public Prosecutor representing on behalf of State.

4. (a) Severely fulminating the judgment of the trial court, learned counsel for appellant would argue that in this case, the prosecution miserably failed to prove the demand and acceptance o