IMPORTANT POINT
Illegal gratification – Proof of demand is sine qua non for convicting a person under Section 7 of P.C. Act – Mere recovery of amount is of no consequence.

JUDGMENT

The appellant aggrieved by the conviction recorded by the II Additional Special Judge for SPE & ACB Cases, City Civil Court at Hyderabad for the offences under Sections 7 and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act of 1988”) and sentenced to undergo rigorous imprisonment for a period of one year under both counts, vide judgment in CC No.24 of 2019 dated 15.03.2013, the present appeal is filed.

2. Briefly, the case of the prosecution is that the appellant/A1 and A2 (since A2 died during the pendency of appeal, the case against A2 was dismissed as abated) were working as Civil Assistant Surgeons in the District Head Quarters Hospital, Nizamabad. P.Ws.2 and 3 went to Government Hospital, Nizamabad for operation of tonsillitis of P.W.2. It is alleged that A1 and A2 demanded Rs.2,000/- for performing operation in the hospital and if the operation has to be performed outside the Government Hospital, they have to give Rs.4,000/-. Since P.Ws.2 and 3 did not have the amount, they returned home. On 06.09.2003, P.W.1/defacto complainant accompanied P.Ws.2 and 3 and met A2. Then, the A1 was also present at that time. There was a demand for Rs.2,000/- by A2, however, reduced to Rs.1,000/- and on further requesting, A2 reduced the amount of Rs.800/-. P.W.2 was operated in the Government hospital. Niyaz, who is relative of P.W.1 informed P.W.1 that amount was being demanded by Doctor and accordingly, P.W.1 arranged Rs.300/- and went to the hospital. Then said Niyaz informed A2 that they had only Rs.300/-. A2 took his cell phone and insisted that unless Rs.800/- was given, he would not return the cell phone. Aggrieved by the said incident, P.W.1 approached ACB and lodged complaint Ex.P1 on 06.09.2003. The said complaint was given to P.W.9/DSP. P.W.9 asked P.W.1 to come to the office on 08.09.2003 with the bribe amount.

3. On 08.09.2003, FIR was registered and trap was arranged. The trap party consisted of P.W.1/defacto complainant, P.W.2/independent mediator, P.W.9 and others. Having concluded the formalities before proceeding to trap, Ex.P5/pre-trap proceedings was drafted. The entire trap party then went to the Government Hospital, Nizamabad. P.W.1 went inside the hospital around 9.50 a.m and came out of the hospital at 10.10 a.m. He relayed signal to the trap party indicating demand and acceptance of bribe by the accused doctors.

4. The trap party entered into the hospital and questioned appellant/A1. Sodium carbonate solution was prepared and when A1 was asked to rinse his fingers, they turned into pink colour. The bribe amount was seized from A1/appellant. Thereafter, A2 was questioned regarding the bribe and also the cell phone that was taken by A2. A2 opened the locker and handed over the cell phone to DSP, which is marked as MO1 by the Court below. The case sheet of P.W.2 was seized, which is Ex.P6. The attendance registers Exs.P7 and P8 were also seized during the course of post trap proceedings. Having concluded post-trap proceedings, Ex.P10 was drafted.

5. Thereafter, investigation was handed

over by P.W.9 to P.W.10/inspector. Part of investigation was done by P.W.10 and investigation was again handed over to P.W.11. P.W.11 concluded investigation and filed charge sheet.

6. Learned Special Judge examined P.Ws.1 to 11 and marked Exs.P1 to P13 on behalf of the prosecution. The defence examined two witnesses D.Ws.1 and 2. Learned Special Judge, having considered the evidence on record, convicted both appellant-A1 and A2, as stated supra.

7. Learned Senior Counsel appearing on behalf of the appellant would submit that even according to the evidence of P.W.1, demand was made by A2. In his chief examination only the presence of appellant was stated but there is no whisper of any demand. Further, during the post-trap proceedings, it was explained by the appellant that P.W.1 had handed over the amount to the appellant requesting him to handover the said amount to A2. The said explan