Point of Law : When amount was recovered from the table drawer and once demand is not proved, which is sine qua non proof, an offence under Section 7 of the Act is not proved, the prosecution fails.

JUDGMENT :

1. The appellant is convicted under Section 7 of the Prevention of Corruption Act, 1988 (for short “the Act”), Section 13(1)(d) r/w Section 13(2) and 13(1)(d) r/w Section 13(2) of the Act and sentenced to undergo rigorous imprisonment for a period of six months, one year and one year respectively vide judgment in CC No.23 of 2006, dated 31.10.2007 passed by the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, present appeal is filed.

2. The appellant/accused officer was working as Junior Assistant in the A.P. Housing Board. P.W.1 was allotted a house in LIG category under Hire Purchase and paid an amount of Rs.30,000/- and also fulfilled the requisite formalities. The appellant allegedly asked for bribe of Rs.300/- for giving the possession letter. P.W.1 was asked to come on 28.03.2000, 29.03.2000 and also on the date of complaint i.e., on 30.03.2000. On all the three days, the appellant allegedly demanded an amount of Rs.300/-, failing which allotment letter will not be given. Aggrieved by the said demand, complaint was lodged on 30.03.2000 with the DSP, P.W.8. P.W.8, after conducting preliminary enquiry, arranged a trap on the same day.

3. The trap party with the independent mediators, P.W.2 and another person, DSP- P.Ws.8 and IO-PW10, formed trap party. Pre-trap proceedings were conducted under Ex.P9 by concluding all formalities, which concluded at 2.30 p.m. The trap party proceeded to Kukatpally Housing Board Office at 3.30 p.m. Both the complainant, P.W.1 and the accompanying witness namely P. Ganapathy Reddy (not examined during trial) went inside the office of the appellant. Five minutes after they entered the office, the said Ganapathy Reddy, accompanying witness came out of the office and stood at the gate. At 4.25 p.m., complainant came out of the office and gave pre-arranged signal. Thereafter, the trap-party entered inside and the DSP got the hands of the appellant tested, which turned positive for sodium carbonate solution test. When questioned, the appellant pulled out the right side drawer of his table, in which tainted currency of Rs.300/- was found. Accordingly, the concerned file was seized and thereafter, investigation was handed over to P.W.10, who after completion of investigation, filed charge sheet. Initially charges under section 7 and 13(1)(d) R/W 13(2) of P.C.Act were framed. However charge under section 13(1)(a) R/W 13(2) was framed after evidence of witnesses commenced.

4. Learned counsel for the appellant submits that the case of the prosecution is highly doubtful for the reason of the accompanying witness Ganapathy Reddy in spite of instructions by DSP, was not with the complainant and came out of the office within five minutes. The amount was recovered from the table drawer, which was without any lock. D.W.1, who was present in the office sitting opposite the appellant stated that there was no demand of bribe by appellant. In the said circumstances, when demand is not proved mere acceptance is of no consequence and the question of raising the presumption under Section 20 of the Act is clearly erroneous.

5. Learned counsel further submits that it is not mentioned in the mediators report as to the time of the testing which was done and when the said information is not found in the mediator’s report, adverse inference has to be drawn. Testing is a crucial issue and not stating the exact details, the prosecution has to fail. The prosecution has later come up with the evidence of other witnesses P.Ws.2, 3, 4 and 7, who were examined to state that the appellant was a habitual offender and charge under Section 3(1)(a) was also framed on 10.11.2005, though the charge under Sections 7 and 13(1)(d) were framed on 23.02.2004. The prosecution has come up with the version which cannot be accepted and when the very demand by the appellant is not proved and the amount was recovered from the table drawer, the appellant is entitled to acquittal.

6. In support