IMPORTANT POINT
Proof of demand is essential for establishing guilt under the Prevention of Corruption Act, and mere recovery without proof of demand cannot lead to conviction.

JUDGMENT :

K. SURENDER, J.

1. The appellant was convicted for the offence under Section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of two years and also fine of Rs. 1000/- under both counts, in default to undergo simple imprisonment for a period of three months vide judgment in C.C. No. 38 of 2005 dated 29.12.2009 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad.

2. Briefly, the case of the prosecution is that the appellant was working as a Constable in Chandhurthy Police Station, Karimnagar District. PW-1/Defacto complainant, his father/PW-2 and brother/PW-3 were having disputes with one Bhoomaiah, who is the uncle of PW-1. A complaint was lodged by P. Devaiah against PWs. 1 to 3 for intervening in the altercation that happened in between the said Devaiah and Bhoomaiah. On the basis of the said incident that happened on 10.12.2003, petty case was booked against PWs. 1 to 3. PWs. 1 to 3 were appearing before the Court. On 21.01.2004, when they appeared, it is alleged that the appellant demanded to pay Rs. 2,000/- to see to that nothing adverse would happen in the case, failing which, they would have to face dire consequences in the case. Aggrieved by the said threats and demand of bribe, PW-1 approached ACB authorities on 06.02.2004 and filed a complaint.

3. On the basis of the complaint, trap was arranged on 07.02.2004 on which date, the case of PWs. 1 to 3 stands posted before the Magistrate. On 07.02.2004 in the presence of complainant, mediators and the DSP, pre-trap proceedings were conducted under Ex.P5. Thereafter, trap party members proceeded to the JFCM Court at Sircilla. PWs. 1 to 3 went inside the Court premises and came out around 12.15 p.m. along with the appellant. At that juncture, PW-1 conveyed the signal to the trap party regarding acceptance of bribe by the appellant. Immediately, the trap party accosted the appellant and conducted tests on the hands of the appellant, which proved positive. Accordingly, proceedings were concluded and Ex.P7 post trap proceedings were drafted near the Court premises.

4. Learned Special Judge examined PWs. 1 to 7 and marked Exs.P1 to P11 on behalf of the prosecution. DWs. 1 to 3 were examined on behalf of the defence/appellant and Exs.D1 to D4 were marked. Relevant GD entries on 21.01.2004 and 07.02.2004 were marked as Exs.X1 and X2 during trial.

5. Learned Special Judge found that the version of the demand of bribe was believable though PWs. 1 to 3 have turned hostile to the prosecution case. On the basis of recovery and also on the ground that though the appellant stated that money was taken towards payment of fine on behalf of PWs. 1 to 3, since no such fine was imposed by the JFCM Court, acceptance of money as bribe was believed by the Special Court.

6. Learned counsel appearing for the appellant would submit that the trial Court had committed grave error in convicting the appellant when the aspect of demand was not proved. PWs. 1 to 3 have turned hostile to the prosecution case and specifically stated that the amount was given towards payment of fine. Even in the post trap proceedings, the immediate explanation of the appellant as recorded in Ex.P7 post trap proceedings is that the amount was accepted as payment of fine before the Court. According to appellant, he further explained during post trap proceedings that in petty cases, the amount would be collected from the accused and paid in the Court and obtain receipts which is general practice. Counsel further submitted that in the absence of proof of demand, there cannot be any conviction on mere recovery of the amount.

7. Learned counsel relied on the judgment of the Hon’ble Supreme Court in the case of B. Jayaraj vs. State of Andhra Pradesh, 2014 Cri. L.J. 2433 wherein it is held that when there was no other evidence adduced by the prosecution to prove demand, the recovery of amount from the accused cannot form b