Point of law: Proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act

JUDGMENT :

1. The present Appeal is filed against the conviction and sentence imposed in C.C. No. 22 of 2004 on the file of the Special Judge for CBI Cases, Hyderabad, on 07.11.2008, wherein, the Appellant who was tried for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, was convicted and sentenced to suffer Simple Imprisonment for a period of four years and to pay a fine of Rs.1,000/-, in default, to suffer Simple Imprisonment for three months each under both the counts. The sentence of imprisonment imposed under both the counts were directed to run concurrently.

2. The substance of the Charges against Accused Officer is that, on 09.06.2003 at 1.40 p.m., the Accused Officer in pursuance to his earlier demand is said to have accepted Rs.1,000/-towards illegal gratification as a motive for releasing Earnest Money Deposit and Security Deposit.

3. The facts, as culled out from the evidence of the prosecution witnesses, are as under:

i. PW1 who was a contractor in civil works took contract work for maintenance of buildings of BSNL, Chittoor, Kadapa and Nellore Districts, in pursuant to the tender called for by the Executive Engineer Telecom, for maintenance of buildings of BSNL. At the time of submitting tender, the Contractor has to deposit 2 ½% of the bid amount as Earnest Money Deposit and after executing some work, bills would be presented. When running bills are presented, 7 ½% will be deducted towards security deposit.

ii. It is said that for the works completed during the years 2000-2001 and 2001-2002, PW1 made an application for return of EMD/Security Deposit. About six to seven applications were said to have been made for return of the EMD/Security deposit. Ex.P1 to Ex.P12 are the applications, which were sent to Divisional Office, BSNL at Tirupati.

iii. On 05.06.2003, PW1 claims to have met the Accused Officer, by name, E.K. Annamalai, in the Divisional Office, BSNL at Tirupati, wherein, he demanded a sum of Rs.5,000/-for clearing the bills. When PW1 expressed his inability to pay the said amount, the Accused Officer demanded to pay Rs.1,000/-on or before 9th June. As PW1 was not inclined to pay the bribe amount, he telephoned to CBI, who gave him the telephone number of Superintendent of Police, CBI, who was in Chennai. When contacted, the Superintendent of Police informed him to contact the Inspector, who was in the Railway Retiring Room at Tirupati. Accordingly, on 09.06.2003, PW1 approached the Inspector CBI and gave a complaint in writing. Ex.P13 is the complaint. It is to be noted here that the said complaint was given at 11.30 a.m., on 09.06.2003.

iv. PW15 received the complaint from PW1, contacted the CBI Officials over phone and after obtaining necessary orders, registered a case in Crime No.21-A/2003-H and proceeded further with the investigation. Having regard to the nature of allegations made, he decided to lay a trap and utilized two witnesses, who were summoned for other purposes. PW15 organized a meeting of PW3 [mediator], PW14 [another mediator] and PW1 along with other CBI Officials. The complaint was shown to PW3 and PW14, who have signed on the same as token of seeing it. The importance of sodium carbonate solution and the phenolphthalein test was explained to PW1 and the mediators. PW1 was asked to produce the bribe amount of Rs.1,000/-, which he did. The currency notes were smeared with phenolphthalein powder and then kept in the left side shirt pocket of PW1. PW3 was asked to accompany PW1 and give a signal by wiping his face with handkerchief as soon as the Accused Officer receives the bribe amount. Ex.P18 is the 1st mediators report. The evidence of PW15 discloses that proceedings under Ex.P18 begun at 12.00 noon and concluded at 1.15 p.m., on 9.06.2003. Thereafter, the trap party left to the office of the Accused Officer, which was at a walking distance from the Railway Station. They reached the office of the Accused Officer at 1.30 p.m.

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