R. Kantha Rao, J.@mdashThis appeal is filed by the accused against the judgment dated 19.11.2005 passed by the Principal Special Judge for
SPE and ACB Cases, Hyderabad in C.C. No. 4 of 2001. I have heard the learned counsel appearing for the appellant and the learned counsel
appearing for the respondent.
2. The appellant was tried by the Special Judge for ACB Cases for the charges under Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (for short ''the Act'') was convicted for the said charges and was sentenced to undergo rigorous imprisonment
for a period of one year for the offence punishable u/s 7 of the Act and also sentenced to undergo rigorous imprisonment for a period of two years
for the offence punishable u/s 13(2) of the Act. Challenging the said order of conviction and sentence, the accused preferred the present appeal.
3. Briefly stated the facts of the case are as follows:
PW.1 - D. Bhoomaiah is the resident of Balwanthpur Village in Karimnagar District. He was Chairman of the School Education Committee of his
village. He was entrusted with the contract work constructing two additional class rooms in the pre-primary school, Balwanthpur village on
nomination basis. However, on the assurance given by the appellant and the other officials of Panchayat Raj Department, they laid foundation for
four rooms and completed the construction work for two rooms initially. Subsequently he also proceeded with the construction work of the other
two rooms. But, for passing the bills, he had to enter into an agreement with the appellant. According to the prosecution on the oral instructions of
the appellant, who is the Executive Engineer in Panchayat Raj Department, Jagitial, P.W.1 proceeded with the construction of other two class
rooms also and constructed them up to lintel level.
4. When P.W. 1 approached the appellant on 08.07.1999 for work order, it is said that the appellant demanded an amount of Rs. 5000/- as bribe
from him for issuing the said work order and also for entering into agreement. Again on 13.07.1999 when P.W.1 approached the appellant and
requested for work order and agreement, the appellant reiterated his demand for payment of bribe of Rs. 5,000/- and when P.W.1 expressed his
inability to pay the said huge amount, he reduced the bribe amount to Rs. 3,000/- and directed P.W.1 to pay the said amount on 15.07.1999.
5. As P.W.1 was not willing to pay the bribe amount, he approached P.W.7 - DSP, ACB, Karimnagar and lodged a report with him against the
appellant on 14.07.1999. Basing on the said report, a case in Crime No. 4/ACB-KNR/99 was registered against the appellant u/s 7 and 11 of the
Prevention of Corruption Act on 15.07.1999 at 07.00 AM and the investigation was taken up.
6. In the course of investigation, DSP, ACB - P.W.7 laid a trap with his staff. In the course of which, P.W.2-M. Ramalinga Reddy asked to
accompany the witnesses. According to the prosecution, in the course of the said trap laid on 15.07.1999, P.W.1 paid the bribe amount of Rs.
3,000/- and the appellant received the same as a motive and reward for doing the official favour of issuing work order and entering into agreement.
The chemical test conducted on the fingers of the appellant yielded positive result and the tainted amount of Rs. 3,000/- was recovered from him at
his instance by P.W.7-DSP, ACB.
7. In order to prove the aforesaid allegations, the prosecution examined PWs.1 to 7, marked Exs.P.1 to P. 12 and MOs 1 to 8. The appellant
examined DWs.1 to 3 on his behalf, and marked Exs.D1 to D9 and Exs.XI to XII were also marked.
8. P.W.1, the de-facto complainant and P.W.2, the accompanying witness did not support the prosecution. They have stated in their deposition
before the trial Court that P.W.2 took a hand loan of Rs. 3,000/- from the appellant earlier to the trap and on the date of trap when P.W.2 repaid
the said loan amount, the appellant received the same, but, he did not either demanded or accepted any bribe. Despite the said fact, the learned
trial Court considering that on the alleged date of trap official favour was pending with the appellant and that the chemical test conduced on the
fingers of the appellant yielded positive result and more particularly taking into consideration the fact that he received the tainted amount and drew
the presumption u/s 20 of the Act, convicted him for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act and
sentenced him to punishment as stated above.
9. Now the point for consideration in this appeal is whether the conviction and sentence passed by the trial Court against the appellant can be
sustained?
10. In the instant case, since there is no dispute about the fact that the appellant received the bribe amount from P.W.1, the chemical test
conducted on the fingers of the appellant yielding positive result and recovery of the tainted amount from the appellant are of no consequence. The
only question to be determined in this appeal is whether the defence theory that the appellant received the amount of Rs. 3,000/- from P.W.2 as
repayment of hand loan can be believed, if the said version is probable, then the appellant is entitled for benefit of doubt.
11. Thorough examination of PWs. 1 and 2 clearly shows that one K. Gangaiah of P.W.1''s village advised him to go and complain to the ACB for
getting his work done earlier through the appellant. On his advice, PWs.1 and 2 approached P.W.7-DSP, ACB. Both these witnesses stated in
their evidence before the trial Court that P.W.7-DSP, ACB asked them whether the appellant received any bribe, they replied that he would not
take the bribe and they never paid any bribe amount to him. According to these witnesses, as the P.W.7, DSP, ACB made it clear that in the
course of the trap, they must make the appellant to receive the tainted amount. P.W.2, Ramalinga Reddy suggested that as previously he obtained
hand loan from the appellant, he would receive the amount from him, if he gives the amount representing it to be the repayment of loan. In the
course of the trap also, according to these two witnesses, when they approached the appellant, the appellant asked him as to why they came to
him and P.W.2 stated that they came to repay the loan borrowed by P.W.2 and gave the amount to the appellant, the appellant received the same
and kept in his shirt pocket. Thereafter, it is said that on receiving the pre-arranged signal, the raiding party came and recovered the tainted amount
from the appellant. Thus, even according to P.W.1, he lodged the report with P.W.7-DSP, ACB as his work pending with the appellant was
getting delayed, but the appellant never demanded bribe from him. P.W.2, the accompanying witness also gave the same version as that of P.W.1.
There is no other witness who had seen the appellant either demanding the bribe or accepting the bribe. It is now well settled that merely because
the chemical test conducted on the accused yielded positive result and the tainted amount was recovered from the accused, the presumption u/s 20
of the Act cannot be drawn against the appellant/accused. The presumption can be drawn against the accused only if it is proved that he demanded
and accepted the bribe or agreed to accept the same. In the absence thereof, it is not proper for the Court to draw a presumption as envisaged u/s
20 of the Act against the appellant/accused.
12. The learned counsel for the appellant in support of his contention that the learned trial Court erred in drawing presumption u/s 20 of the Act
against the appellant relied on the following judgments. (1) M. Abbas Vs. State of Kerala, . In this case before the Supreme Court the plea of the
accused was that the amount was received by him not as a bribe, but for making the payment to another contractor who had completed the work
entrusted to him. P.W.2, who was declared hostile, supported the plea of the accused. No other witness was examined to prove the demand or
acceptance of bribe by the accused. The Supreme Court held that the presumption u/s 4(1) of the Act can be said to be rebutted and the accused
is entitled for acquittal. (2) In Banarsi Dass Vs. State of Haryana, the Supreme Court held as follows:
To constitute the offence u/s 161 of IPC, it is necessary for the prosecution to prove that there was demand of money and the same was
voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour
in discharge of its official duties is sine qua non to the conviction of the accused.
13. In the instant case also PWs.1 and 2 are the only persons, who are expected to speak of demand and acceptance of bribe by the appellant
and did not support the prosecution story. Moreover, they stated that the appellant was not a person, who receives the bribe and they informed
the same to the DSP, ACB. They also explained the circumstances under which the trap came to be laid against the appellant. To attract the
offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Act, the prosecution has to prove that there was voluntary and conscious
acceptance of money by the accused. The trial Court is not expected to draw a presumption having recourse to inference drawn from the evidence
of the mediators, who have not witnessed the demand or acceptance of the bribe or from the contents of the post trap panchanama which cannot
be said to be a substantive piece of evidence.
14. In the instant case, despite the fact that there was no material before the learned trial court, about demand of bribe and its voluntary
acceptance, it raised a presumption against the appellant u/s 20 of the Act and the said presumption seems to have been raised basing on surmises
and conjectures. PWs.1 and 2. who are the witnesses examined by the prosecution for the purpose of proving the voluntary acceptance of bribe
by the appellant stated in clear and categorical terms that the appellant never demanded or accepted any bribe, but he received the tainted amount
which was offered by P.W.2 as repayment of loan. Consequently, for the foregoing reasons, the conviction and sentence passed by the Principal
Special Judge for SPE and ACB Cases, Hyderabad in C.C. No. 4 of 2001 against the appellant being unsustainable are set aside and the
appellant is found not guilty of the charges with which he stood charged and accordingly, he is acquitted. The fine amount, if any, paid by the
appellant shall be refunded to him. The appeal is allowed.