K.Surender, J
1. 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 explanation was given at the earliest point of time. The cell phone of complainant was also seized at the instance of A2. In the said circumstances, when the demand was not proved by the prosecution against appellant, mere recovery from the appellant-A1 cannot form basis to convict him.
8. On the other hand, learned Special Public Prosecutor appearing for ACB would submit that in the complaint Ex.P1, it is mentioned that there was a demand by A1 and also A2. It is specifically mentioned in the compliant that it was the appellant, who had demanded and accepted the amount from P.W.1. In the said circumstances, the prosecution has proved both demand and acceptance by A1. Even according to the prosecution case, both A1 and A2 had demanded amount. Only for the reason of P.W.1 not specifically stating about demand by A1 before the Court below, is of no consequence. The case of P.W.1 is that both A1 and A2 have demanded bribe amount. Prosecution has proved its case beyond reasonable doubt against the appellant.
9. The only evidence to prove demand is that of P.W.1. P.W.1, while he was examined in the Court stated that it was A2, who had demanded the bribe of Rs.1,000/- and reduced to Rs.800/-. A2 had operated on P.W.2. However, P.W.1 states that A1 was also present when the demand was made by A2. But the fact remains that P.W.1 did not state that there was demand by the appellant-A1 prior to or till the date of complaint in his examination before Court.
10. On the date of trap, according to the version of the appellant, when confronted by DSP, appellant stated that P.W.1 had given the amount and asked him to handover to Mr.Sunil Kumar-A2. Accordingly, the appellant has taken the amount and kept with him to hand it over to A2. He further stated that he never demanded any amount and operation was not performed by him. Only on 07.09.2003, he had attended the patient P.W.2 in the ward. P.W.1 stated in chief examination as follows:
“I went to the first floor and entered room No.302 which is the consulting room of the doctors and found AO1 in the said room. Then I enquired him about AO2, AO1 informed that AO2 went out, then I gave the amount to AO1, he took the amount and he counted on my request and kept in the shirt pocket and I came out and conveyed the signal.”
Even according to P.W.1, there was no demand by A1/appellant on the date of trap.
11. It is not the case of the prosecution that there was demand made on 07.09.2003 by the appellant. The complaint was filed on 06.09.2003 itself. Even according to P.W.1, the cell phone was taken by A2 asking to pay the amount of Rs.800/- and kept the cell phone with him. On the date of trap, A2 produced cell phone from the locker and handed over to DSP. The operation was performed by A2. Collectively, viewing the circumstances, it is not specifically stated by P.W.1 that there was any demand by appellant, neither operation was conducted by the appellant/A1 nor the cell phone was taken by appellant/A1. Further, spontaneous explanation was given that P.W.1 had handed over the amount to be given to A2. All these circumstances indicate that there was no demand made by A1. Even in the chief examination of P.W.1, stated that he went inside the room and enquired about A2, then A1 informed that A2 went out. Then P.W.1 gave the bribe amount to A1, who counted it and on his request kept in his shirt pocket. P.W.1 specifically stated that on his request, the amount was taken by the appellant-A1.
12. The Hon’ble Supreme Court in the case of P.Satyanarayana Murthy v. State of A.P( F.B) (2015 (10) SCC 152) held that proof of demand is sine qua non for convicting a person under Section 7 of the Act and mere recovery of the amount is of no consequence. Similar view was taken by the Hon’ble Supreme Court in the case of K.Shanthamma v. State of Telangana (2022) 4 Supreme Court Cases 574).
13. The factum of demand is not proved by the prosecution. Even according to P.W.1, there was no demand by A1-appellant at any point of time. Recovery from A1 was explained by him that it was handed over by P.W.1 to be given to A2. The said fact is stated by P.W.1 also. In the said circumstances, the prosecution has failed to prove either the factum of demand of bribe or accepting any bribe from P.W.1. Accordingly, appellant succeeds.
14. In the result, the judgment of trial Court in CC No.24 of 2010 dated 15.03.2013 is hereby set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand cancelled.
15. Criminal Appeal is allowed.
