K.Surender, J
1. The appellant who worked as Assistant Executive Engineer in Panchayat Raj Department, Asifabad, was trapped for demanding and accepting bribe of Rs.10,000/- from the defacto complainant/P.W.1. Appellant was convicted by the Principal Special Judge for SPE & ACB Cases at Hyderabad, under Sections 7 & 13(1)(d) r/w 13(2) of the Prevention of Corruption Act vide judgment in C.C.No.9 of 2005 dated 12. 07.2010. Aggrieved by the same, present appeal is filed.
2. Briefly, the case of the prosecution is that the defacto complainant/P.W.1 was Mandal Parishad Territorial Constituency (MPTC) member, who was awarded three contracts for laying metal roads. Having entered into agreement with department, work orders were issued and accordingly he completed works within time. The roads were laid under the food for work programme. The wages would include distribution of rice which would be released by issuing rice coupons by the appellant within his jurisdiction.
3. It is further the case of P.W.1 that the appellant had to release total extent of 80 quintals of rice and when asked to release rice, appellant demanded Rs.14,000/- as bribe and later reduced the bribe amount to Rs.10,000/- when pleaded his incapacity to give such amount. The said demand for bribe was again made on 05.03.2003. Aggrieved by the constant demand, Ex.P4 written complaint was filed by P.W.1 with P.W.6/DSP on 06.03.2003. P.W.6 asked P.W.1 to come to his office on the next day.
4. On 07.03.2003, the trap was arranged by the DSP/P.W.6. The trap party including the complainant/P.W.1, P.W.3/independent witness, P.W.6/DSP and others assembled in the guest house. P.W.1 could not arrange for Rs.10,000/- and only Rs.5,000/- was arranged. However, the trap party went ahead and completed the formalities required before proceeding to entrap the appellant. All the formalities were concluded in the guest house where the trap party assembled. The pre-trap proceeding is Ex.P6.
5. Thereafter, P.W.1/complainant and accompanying witness P.W.2 went on motor cycle while the other trap party members followed them in a car. Around 9.20 am, they reached the house of the appellant and both P.Ws.1 and 2 entered into the house of the appellant. On seeing P.W.1, appellant allegedly demanded the bribe amount and instructed P.W.1 that the amount be kept on the table. After the amount was kept on the table, P.W.2 went outside and signaled to the trap party. P.W.1 also left. P.W.3, P.W.6/DSP and other trap party members then entered into the house and enquired about the bribe amount. Sodium carbonate test was conducted on the hands of the appellant, which remained colourless. The trap party found the amount on the table. The trap party verified the cash and seized the same. The appellant then produced three measurement books relating to P.W.1 which are Exs.P7 to P9. The statement of the appellant, complainant and other witnesses were incorporated in the post trap proceedings Ex.P11. Thereafter, investigation was handed over to P.W.7/Inspector. Having obtained sanction to prosecute the appellant, charge sheet was filed by P.W.7.
6. During the course of trial, learned Special Judge examined witnesses produced by the prosecution who are P.Ws.1 to 7 and Exs.P1 to P13 were also marked. Further, MOs.1 to 9 were also placed on record during trial. D.Ws.1 and 2 were examined by the appellant in his defence. Learned Special Judge convicted the appellant accordingly.
7. The case of the appellant is that he did not demand any amount from P.W.1. On the date of trap, P.W.1 offered some amount, however, when the appellant refused to accept, P.W.1 forcibly kept the said amount on the table. The appellant pushed the money with the note book which was held in his hand and asked P.W.1 to take back the said amount. However, P.W.1 asked appellant to sign on the rice coupons and left the room without taking the amount and leaving it on the table. Four persons were also present when P.W.1 kept the amount, which included D.Ws.1 and 2. The said version was stated by the appellant when he was examined by the DSP during post trap proceedings and the said version was incorporated in the post trap proceedings.
8. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove that 80 quintals as alleged by the complainant/P.W.1 were due to him. The ACB authorities while conducting search in the house found Ex.P5, which are bunch of coupons for three works seized them and projected them as though the said coupons were due to be given to P.W.1. However, as seen from Ex.P5, they are office copies of coupons and in fact the coupons would be in triplicate. The duplicate and triplicate are missing. According to P.W.5, Deputy Executive Engineer in the Panchayat Raj Department, there were no files of P.W.1 pending with the appellant. Unless orders are passed by the MPDO in Ex.P9, which was not done, the question of allotting rice does not arise. Counsel further argued that P.W.4 admitted that in Ex.P9, no orders were passed by the MPDO for issuance of rice coupons. In fact, rice coupons will be initialed by the MPDO and would be handed over to the AE and as per the release of the rice from Government, coupons will be given. Since the prosecution has failed to prove that the MPDO had passed any coupons in favour of P.W.1 to be handed over to P.W.1, the question of any pending work with the AE does not arise. The burden is always on the prosecution to prove that official work was pending and for the said works, money was demanded.
9. Learned counsel for the appellant relied on the following judgments: i) Rabindra Kumar Dey v. State of Orissa (AIR 1977 Supreme Court 170); ii) Mir Mustafa Ali Hasmi v. State of A.P (arising out of SLP (Crl.) No(s).9091 of 2022, dated 10.07.2024; iii) Muralikonda v. State of A.P(2002(2) ALD (Crl.) 249 (AP); iv) Smt. Meena Balwant Hemke v. State of Maharashtra (2000) Crl.L.J 2273); v) K.Shanthamma v. State of Telangana (2022) CRI.L.J 1238); vi) Dudh Nath Pandey v. State of U.P (AIR 1981 Supreme Court 911 Supreme Court); vii) Gulam Mahmood A. Malek v. The State of Gujarat (AIR 1980 Supreme Court 1558); viii) Chandrakant Luxman v. Maharashtra (AIR 1974 Supreme Court 220 Supreme Court) and argued that demand was not proved by prosecution and recovery is of no consequence. Both the prosecution and defence witnesses are to be treated equally. He further argued that the version of P.W.1 regarding pending work was not proved and the demand becomes doubtful. The amount was placed on the table and recovery was not at the instance of the appellant. In fact, D.Ws.1 and 2 stated that when they were present in the house, P.W.1 entered into the house, placed amount on the table and left, though appellant refused. Immediately, ACB officials entered into the room. In the said circumstances, no case is made out against the appellant.
10. On the other hand, learned Special Public Prosecutor for ACB would argue that the rice coupons Ex.P5 were found in the house of the appellant, when search was conducted. In fact, prosecution has proved that all the three works were completed, measurements books were also seized at the instance of the appellant. Though the tests on the hands of the appellant turned negative, however, it was clearly explained that when the appellant asked P.W.1 for money, P.W.1 placed the amount on the table, as directed by appellant and then P.Ws.1 and 2 left the room. There is no reason why the appellant would be falsely implicated and no such evidence is forthcoming regarding any motive or reason to file criminal case against the appellant. The prosecution has proved its case against the appellant beyond reasonable doubt.
11. P.W.5 is the official witness, who stated that the MPDO had passed orders at page 74 of Ex.P9 for release of 80 quintals of rice. However, during cross-examination, P.W.5 stated that after completion of work by P.W.1, appellant measured the works immediately, but no file was pending with the appellant. He further admitted that the order passed by the MPDO does not contain the date at page No.74 of Ex.P9, which is relied on by the prosecution to support the prosecution version. Ex.P5 rice coupons, which are filed by the prosecution, were all distributed and originals are only found. The duplicate and triplicate of the coupons filed under Ex.P5 are missing. It is for the prosecution to prove as to what happened to duplicate and triplicate of the coupons.
12. Prosecution has not examined the MPDO, who issued coupons to know whether any coupons were in fact issued and sent to the appellant for the purpose of handing it over to P.W.1. There is no reason as to why the person who had to issue coupons i.e., MPDO was not examined by the prosecution. Non-examination of MPDO casts any amount of doubt regarding the correctness of the prosecution version, since the originals/first part of the coupons were found and not the duplicate and triplicate. However, there is no explanation regarding duplicate and triplicate of the said coupons, which is required, since the absence of duplicate and triplicate indicates that the coupons were already used and rice distributed.
13. The prosecution further failed to prove that any file was pending with the appellant, which is admitted by P.W.5. The prosecution, except marking Ex.P5; i) has not given any specific numbers regarding the quantum of rice which has to be distributed, (ii) Coupons already signed and sent by the MPDO; (iii) what was the remaining quantum of rice that had to be given to P.W.1 and the details of corresponding work. Nothing can be gathered by this Court regarding the correctness of the claim of P.W.1 that there was due of 80 quintals of rice to be handed over to him for the works completed. On the basis of the complaint and filing the documents, it cannot be presumed that the said quantum of 80 quintals is yet to be paid. Though P.W.5 stated that 80 quintals was due to P.W.1, however, during cross-examination, he could not substantiate the same and stated that no file was pending with appellant. As already discussed, MPDO was not examined and P.W.5 stated that MPDO has not signed or passed orders regarding jurisdiction works, for which rice had to be issued. The confusion ought to have been explained by the prosecution. It is the specific case of the appellant that whatever rice had to be released in favour of P.W.1 was already released and nothing was pending with the appellant, which is supported by Ex.P5.
14. The demand of bribe was Rs.14,000/- and according to P.W.1, it was reduced to Rs.10,000/-. However, the trap was laid and arranged for the amount of Rs.5,000/-. The said amount of Rs.5,000/- was placed on the table by P.W.1. The appellant had not handled the amount. It is not the case of P.W.1 that the appellant has asked for Rs.10,000/- and thereafter, accepted Rs.5,000/- on the date of trap. P.Ws.1 and 2 vaguely stated that the appellant asked P.W.1, whether P.W.1 brought the amount and when instructed, P.W.1 kept the amount on the table. If the demand was for Rs.10,000/-, no explanation was given as to why the amount of Rs.5,000/- was accepted on the date of trap. The version given by the appellant at the earliest point of time during post trap proceedings that the amount was kept on the table by P.W.1, P.W.1 left the place is corroborated by the evidence of D.Ws.1 and 2. The evidence of D.Ws.1 and 2 cannot be brushed aside only for the reason of the witnesses being produced by the appellant. If the witnesses produced by the defence tend to lie so do the prosecution witnesses. In fact, the prosecution has failed to prove that there was any pending work with the appellant. Accordingly, benefit of doubt is extended to the appellant.
15. For the reasons discussed above, the judgment of trial Court in C.C.No.9 of 2005 dated 12.07.2010 is set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall cancel.
16. Criminal Appeal is allowed.
