HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

CRIMINAL APPEAL No.959 OF 2007

Between:

B. Nagaraju, S/o.B. Bapanna,

Hindu, Aged 48 years,

Occ: Line Inspector, AP Transco,

APCPDCL, Pagidyala Village,

Kurnool District. …. Appellant

Versus

The State of AP, Through

Inspector of Police,

Anti Corruption Bureau,

Kurnool Range, Rep. by Special

Public Prosecutor,

High Court of AP,

Amaravathi. …. Respondent

DATE OF JUDGMENT PRONOUNCED : 14.03.2023

SUBMITTED FOR APPROVAL :

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers

may be allowed to see the judgment? Yes/No

2. Whether the copy of judgment may be

marked to Law Reporters/Journals? Yes/No

2. Whether His Lordship wish to see

The fair copy of the judgment? Yes/No

______________________________

A.V.RAVINDRA BABU, J

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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

+ CRIMINAL APPEAL No.959 OF 2007

% 14.03.2023

# Between:

B. Nagaraju, S/o.B. Bapanna,

Hindu, Aged 48 years,

Occ: Line Inspector, AP Transco,

APCPDCL, Pagidyala Village,

Kurnool District. …. Appellant

Versus

The State of AP, Through

Inspector of Police,

Anti Corruption Bureau,

Kurnool Range, Rep. by Special

Public Prosecutor,

High Court of AP,

Amaravathi. …. Respondent

! Counsel for the Appellant : Sri M.B.Chandra Sekhar,

Rep. Sri D.Linga Rao,

Learned Counsel.

^ Counsel for the Respondent : Sri S.M.Subhani,

Learned Standing Counsel-

cum-Special Public Prosecutor

for ACB.

< Gist:

> Head Note:

? Cases referred:

1. (2022) 4 SCC 574

2. Crl.A. No.371 of 2017, Dt.17.08.2022

3. (2022) SCC OnLine SC 1724

This Court made the following:

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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

CRIMINAL APPEAL No.959 OF 2007

JUDGMENT :

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, ‗the Cr.P.C‘), is filed by the

appellant, who was the Accused Officer (AO) in Calendar Case

No.24 of 2002, dated 09.07.2007, on the file of the Court of

Additional Special Judge for SPE and ACB Cases, City Civil Court,

Hyderabad, (for short, ‗the learned Special Judge‘), where under

the learned Special Judge found the AO guilty of the charges

under Sections 7 and 13(1)(d) R/w. Section 13(2) of the Prevention

of the Corruption Act, 1988 (for short, ‗the PC Act‘), accordingly

convicted him under Section 248(2) Cr.P.C and, after questioning

him about the quantum of sentence, sentenced him to undergo

Rigorous Imprisonment for one year and to pay a fine of Rs.500/-

in default to suffer Simple Imprisonment for three months for the

charge under Section 7 of the PC Act and further sentenced him to

undergo Rigorous Imprisonment for a period of one year and to

pay a fine of Rs.500/- in default to undergo Simple Imprisonment

for three months for the charge under Section 13(1)(d) R/w.13(2)

of the PC Act. Both the above sentences shall run concurrently.

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2. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The State, represented by Inspector of Police, ACB, Kurnool

filed charge sheet pertaining to Crime No.3/ACB -KUR/2001 of

ACB, Kurnool Range, Kurnool under Sections 7 and 13(1)(d) R/w.

Section 13(2) of the PC Act alleging, in substance, that the AO by

name Balapanuri Nagaraju worked as Line Inspector in A.P.

Central Power Distribution Company Limited (APCPDCL), O & M

Services, Pagidyala Village and Kurnool District from 19.12.1998

to 05.09.2001. He is a ‗Public Servant‘ within the meaning of

Section 2(c) of the PC Act.

Sri Palamuri Venkataiah, S/o. P. Ramudu, de-facto

complainant had been practicing as a Junior Advocate in the office

of Sri Ranga Reddy, a Senior Advocate at Nandikotkur. He used to

reside along with his elder brother viz., Sri Samantha Raju in

Harijanawada bearing Door No.4/100 of Pagidyala village. On

12.08.2001 at 08:00 p.m., the live service wire of electricity

belonging to his neighbor Savaraiah fell down from the pole in the

house premises of P. Venkataiah. As it was raining, smoke and

sparks came out from the wire and his house was engulfed with

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smoke. The inmates in the house of Sri P. Venkataiah were

terrified and became panic. Then, his younger brother

Venkateswarlu switched off the main and removed the said service

wire. On the next day i.e., on 13.08.2001 Sri P. Venkataiah

informed the AO, Line Inspector, about the incident and requested

him to shift the live service wire from that pole to another pole. AO

intimated him that he would do the same within 4 or 5 days but

he did not attend the work. Again on 19.08.2001 and 20.08.2001,

Sri P. Venkataiah met AO and requested him for shifting of the

service wire. AO promised that he would attend the work within 2

days but did not do so.

On 24.08.2001 at 08:00 p.m. he met the AO and asked him

to shift the wire for which AO demanded Rs.1,000/- as bribe to

shift the live wire from that pole to another pole. Venkataiah

pleaded his inability and bargained with AO and AO reduced the

bribe amount to Rs.700/-. AO also instructed Venkataiah to

submit a petition to Assistant Engineer, Nandikotkur for shifting

the service wire, as per his requirement, to another pole. On

25.08.2001, the complainant - Venkataiah gave a written

complaint in the office of Assistant Engineer, Nandikotkur for

shifting the wire. He also handed over a copy of the complaint in

the Electric Sub-Station, Pagidyala pertaining to Line Inspector on

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26.08.2001. Again, on the same day at 05:00 p.m., he met the AO

and requested him for shifting of the wire. AO reiterated the

demand for bribe for which the complainant promised that he

would arrange it by next day. AO asked him to pay the bribe

amount at the Beedi Bunk of one Chandraiah of Pagidyala. Then

the complainant unwillingly agreed to pay out of helplessness and

approached the DSP, ACB, Kurnool on 26.08.2001 at 07:00 p.m.

and preferred a written report against AO, which was registered as

a case in Crime No.3/ACB -KUR/2001 of ACB, Kurnool Range,

Kurnool.

During the course of trap, LW.13 – Deputy Superintendent

of Police, ACB, took the services of G. Reddy Sankar, Deputy

Executive Engineer, APSIDC, Sub -Division, Kurnool and K. R.

Surya Prakasa Rao, Superintendent, Office of the Assistant

Commissioner, Endowments Department, Kurnool as mediators.

After observing necessary formalities, he organized a trap on

27.08.2001 against AO. During the course of trap on 27.08.2001

at 06:50 p.m., when the complainant met the AO at Beedi Bunk of

Chandraiah, AO demanded him to pay the bribe of Rs.700/ - to

shift the live service wire from one pole to another. Then the

complainant gave a positive reply and gave Rs.700/-. AO received

the amount, counted it and kept in his shirt pocket. Both hand

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fingers of AO, when they were tested in the presence of mediators,

gave positive result. Tainted amount of Rs.700/- was recovered

from the possession of AO. All this was recorded in the post trap

proceedings.

During the course of investigation, the Inspector of Police,

ACB, examined the witnesses and recorded their statements. He

got recorded the statement of LW.1 under Section 164 Cr.P.C

before the concerned Magistrate. The investigation revealed that

the AO being a public servant demanded and accepted bribe from

the complainant to shift the live wire from the existing pole to

another pole and as such he com mitted the offences under

Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act.

The Divisional Electrical Engineer, Operations, APCPDCL,

Kurnool being the competent authority, to remove the AO,

accorded sanction to prosecute the AO vide proceedings No.64,

dated 12.07.2002.

4. The learned Special Judge took cognizance of the case under

the above provisions of law and, after appearance of the AO, by

complying the necessary formalities under Section 207 Cr.P.C,

framed charges under Sections 7 and 13(1)(d) R/w.13(2) of the PC

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Act against the AO, read over and explained the same to him in

Telugu for which he pleaded not guilty and claimed to be tried.

5. To bring home the guilt of the AO, the prosecution before the

Court below, examined PWs.1 to 11 and got marked Exs.P-1 to

P-14 and during the course of cross-examination of PW.1 Exs.D-1

and D-2 were marked.

6. After closure of the evidence of the prosecution, AO was

examined under Section 313 Cr.P.C with reference to the

incriminating circumstances appearing in the evidence let in by

the prosecution, for which he denied the same and got filed a

written statement and he further examined DWs.1 to 3.

7. AO pleaded in his written statement that he was on camp on

24.08.2001 and 26.08.2001 at N. Ganga puram attending the

special drive collection. It is supported by the evidence of PW.3.

When PW.1 met him on 26.08.2001, PW.3 intimated him that AO

is not available and he went on camp. According to PW.7, the

Divisional Engineer, the TA bill of the AO show s that on

23.08.2001 at 08:00 a.m. he left Pagidyala to Lakshmipuram via

Nandikotkur and returned to Pagidyala by 09:00 p.m. On

24.08.2001 also he left Pagidyala at 07:30 a.m. to Muchemarri via

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Nandikotkur and returned by 09:00 p.m. The AO did not receive

Ex.P-4 application from PW.1 on 26.08.2001 morning at 08:00

a.m. and he did not know who kept the application in the log book

and Srinivasulu, Operator, did not inform him about the said

application. AO had nothing to do with the log book and log book

was not seized. He did not know how Ex.P-4 application was in the

log book. PW.1 did not meet the AO on 19.08.2001 and

20.08.2001 and AO never promised to do the work. PW.1 did not

meet the AO on 24.08.2001 and AO never demanded any bribe.

Further demand alleged against him is false. AO did not meet

PW.1 on 26.08.2001 at 07:00 p.m. and did not demand bribe.

According to the evidence of PWs.6 and 7, the expenditure relating

to electric service wire will have to be borne out by the consumer.

AO accepted the amount of Rs.700/- only to purchase the wire but

it is not a bribe.

8. The learned Special Judge, on hearing both sides and after

considering the oral and documentary evidence on record, found

the AO guilty of the charges, as above, and convicted and

sentenced him as above.

9. Felt aggrieved of the same, the unsuccessful accused in C.C.

No.24 of 2002, filed the present Criminal Appeal before the

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erstwhile High Court of Andhra Pradesh at Hyderabad by which

time the jurisdiction pertaining to ACB cases from Kurnool Range

was vested with ACB Court at Hyderabad. After bifurcation of the

State, this case is transferred to the High Court of Andhra Pradesh

at Amaravathi from the file of erstwhile High Court of Andhra

Pradesh at Hyderabad. Presently, the jurisdiction pertaining to

ACB cases from Kurnool Range vests with the Special Court at

Kurnool.

10. Now, in deciding this Criminal Appeal, the points that arise

for consideration are as follows:

1) Whether the prosecution before the Court below has

proved that AO is a public servant within the meaning

of Section 2(c) of the PC Act and whether the

prosecution obtained a valid sanction to prosecute him

under Section 19 of the PC Act?

2) Whether the prosecution before the Court below has

proved pendency of the official favour of PW.1 with AO

prior to the date of trap and on the date of trap?

3) Whether the prosecution before the Court below has

proved that AO demanded the de-facto complainant to

pay a bribe of Rs.1,000/- and later reduced it to

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Rs.700/- prior to the date of trap and on the date of

trap accepted the said amount from the de-facto

complainant within the meaning of Section 7 of the PC

Act and by doing so, he obtained any pecuniary

advantage from the de-facto complainant within the

meaning of Section 13(1)(d) of the PC Act?

4) Whether the prosecution has proved the charges

framed against the AO beyond reasonable doubt and

whether there are any grounds to interfere with the

impugned judgment of the learned Special Judge?

11. POINT Nos.1 to 4 : Sri M.B.Chandra Sekhar, learned

counsel, representing Sri D. Linga Rao, learned counsel for the

appellant, would contend that the prosecution before the Court

below failed to prove pendency of the official favour with that of

the AO. The evidence of PWs.3, 4, 7 and 8 did not disclose that the

application of PW.1 was sent to the AO. The prosecution miserably

failed to prove the same. PW.1 was not a reliable witness. He

stated before the learned Magistrate in his 164 Cr.P.C statement

that he met AO on 12.08.2001 and got disconnected the electrical

supply but, according to Ex.P-1, PW.1 had removed the wire on

that day, as it fell, after getting switched off the main etc. The

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prosecution did not prove the demands dated 24.08.2001 and

25.08.2001 and further 26.08.2001 with inconsistent evidence. In

fact, on 24.08.2001 and 26.08.2001, AO was not in the

headquarters, which is deposed by PW.3. The prosecution failed to

prove pendency of the official favour and it further failed to prove

the allegations of demand on the particular dates. According to the

answers spoken by PW.7, the AO claimed TA bill by showing that

he was not available in those days because he went on other duty.

So, the AO had no knowledge, whatsoever, about the application of

PW.1. However, on the date of trap, the defence of the AO before

the Court below was that on the date of trap alone PW.1 gave the

amount to AO to shift the service wire with a request to purchase

the same. It was a practice that the Line Inspectors whenever

requested by the consumers would help them by purchasing the

wire with the amounts given by the consumers. AO so probabilized

his defence theory by eliciting answers from the prosecution

witnesses. The prosecution before the Court below neither proved

pendency of the official favour nor the demand and acceptance of

the bribe amount and AO could successfully dislodge the

presumption under Section 20 of the PC Act by examining DWs.1

to 3. The learned Special Judge, without appreciating the evidence

in proper perspective, convicted and sentenced the appellant as

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such the Appeal is liable to be allowed. Learned counsel would rely

upon the decision of the Hon‘ble Supreme Court in K.

Shanthamma v. State of Telangana

1

and a decision of the High

Court of Telangana in M/s. B. Jagajeevan Rao v. State of A.P

2

.

12. Sri S.M.Subhani, learned Standing Counsel -cum-Special

Public Prosecutor for ACB, appearing for the respondent -State,

would contend that the prosecution by examining PW.1, PWs.6 to

8 categorically proved the pendency of official favour. Hostility of

PWs.3 to 5 was proved by examining PW.10 – Investigating Officer.

Though PWs.3 to 5 turned hostile to the case of the prosecution,

but the evidence of PWs.6 to 8 is very clear that the application

received by PW.6 was duly entrusted to ADE and A AE and,

according to the evidence of PW.8, he tried to entrust the work to

AO but he could not get him. He strenuously contended that AO

had got knowledge about the pendency of official favour. Though,

literally the application of PW.1 was not handed over to AO

physically by PW.8 but AO had knowledge that he has to do

necessary work to the electricity service live wire to another pole

because PW.1 made such applications at the instance of AO. He

would contend that, as per the defence of AO, PW.1 gave an

1

(2022) 4 SCC 574

2

Crl.A. No.371/2017, Dt.17.08.2022

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amount of Rs.700/- to him with a request to purchase the wire so

as to replace the live wire and connect to another pole. There was

no question of AO in putting forth such a theory, if really, there

was no pendency of official favour. The plea of AO that he accepted

an amount of Rs.700/- from PW.1, at his request, to purchase new

wire cannot stand to any reason in view of the categorical evidence

of PWs.6 to 8. There was no procedure that the consumers would

give the amount to the Lineman so as to request him to purchase

live wire for replacement etc. The evidence on record amply proves

that the prosecution before the Court below proved pendency of

the official favour of PW.1 with AO. The trial Court recorded cogent

reasons. The claim made by AO with reference to the TA Bill of

August, 2001 was subsequent to August, 2001 and it was after

trap as such the learned Special Judge did not find favour with

the case of the AO that on 24.08.2001 and 26.08.2001 he was on

camp. AO did not examine any witness of his department. On the

other hand, PW.3 deposed false deviating from his 161 Cr.P.C.

statement. DWs.1 and 2 were examined to prove that PW.1

developed some grudge against AO. The evidence let in by AO by

examining DWs.1 and 2 is of no use to his defence. AO failed to

probablize his defence theory and failed to rebut the presumption

under Section 20 of the PC Act. The amount was recovered from

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the shirt pocket of AO during the post trap. The learned Special

Judge rightly recorded an order of conviction and sentenced the

AO with cogent reasons and the prosecution established the

essential ingredients of the charges framed as such the Appeal is

liable to be dismissed.

13. As seen from the evidence let in by the prosecution, there is

no dispute that the AO was a public servant within the meaning of

Section 2(c) of the PC Act and he was drawing salary from the

account of the Government and this aspect is not at all in dispute.

The prosecution to prove a valid sanction for prosecution of the AO

for the charges framed before the Court below examined PW.9 and

got marked Ex.P -12 sanction order. PW.9 is the retired

Superintendent Engineer, in the office of APCPDCL. According to

him, being a Divisional Electrical Engineer, he is empowered to

appoint and remove the Line Inspectors. He issued proceedings

No.64, dated 12.07.2002, against AO to prosecute him in a Court

of law. Ex.P-12 is the said proceedings. Before issuing Ex.P-12, he

received instructions from his Superintendent Engineer and also

received the documents, copies of FIR and mediators report. After

perusing the above, he issued Ex.P-12. As seen from the cross-

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examination, there remained nothing in his evidence to disbelieve

his testimony.

14. The evidence of PW.9 coupled with Ex.P-12 goes to prove

that on application of mind PW.9 issued Ex.P-12, the proceedings

permitting prosecution of the AO under Sections 7 and 13(1)(d)

R/w.13(2) of the PC Act. The learned Special Judge having gone

through the evidence available before the Court and with sound

reasons upheld the contentions of the prosecution that AO was

working as a public servant as on the date of trap and the

prosecution obtained a valid sanction to prosecute him. The above

said findings given by the learned Special Judge are on reasonable

basis. Hence, I am of the considered view that the prosecution

before the Court below proved that AO is public servant within the

meaning of Section 2(c) of the PC Act and there is valid sanction to

prosecute him for the charges framed.

15. Now, I proceed to deal with as to the pendency of the official

favour in respect of the work of PW.1 with AO. Coming to the

evidence of PW.1, who is no other than the de-facto complainant,

he has spoken about the incident happened at his house i.e.,

falling of electric service wire, which was going to the house of

Savaraiah, during rainy season. According to him, they got

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switched off the main from the pole and later removed the service

wire of Savaraiah on 12.08.2001. His further evidence is that on

13.08.2001, he met AO and intimated about the incident and

requested him to shift the service wire of Savaraiah to another

electric pole for which AO replied that the work will be done within

4 or 5 days but he did not attend the said work. He further

submits that again on 19.08.2001 and 20.08.2001 he met the AO,

who promised to complete the work within 2 days but in vain.

Ultimately on 24.08.2001 at 08:00 or 08:30 p.m. he met the AO

near Chandraiah Bunk and requested him to shift the electric

service wire and then AO demanded bribe of Rs.1,000/ -. PW.1

expressed his inability to pay the demanded bribe amount and

agreed to pay Rs.700/-, AO agreed to receive the said amount and

asked him to bring the amount on 25.08.2001 to Chandraiah

Beedi Bunk. He could not meet the AO on that day as he did not

secure the money. On 25.08.2001 he gave written application to

Assistant Engineer and Assistant Divisional Engineer in the office

of Assistant Divisional Engineer, Nandikotkur which was received

by Sub-Engineer on that day. On 26.08.2001 he submitted

another application in the Sub-Station, Pagidyala to hand over the

same to AO. On 26.08.2001 in the evening he met the AO at 07:00

p.m. AO demanded bribe of Rs.700/ -. He promised to pay the

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bribe on the next day for which AO asked him to pay the bribe

amount near the beedi bunk of Chakala Chandraiah in the

afternoon. He further lodged Ex.P-1 report to DSP, ACB, Kurnool

and that pre trap proceedings were conducted in the office of DSP

at 11:00 a.m. on 27.08.2001. According to him, Ex.P -1 is the

report lodged by him to the Police. Ex.P-2 is the application

submitted him to the Assistant Engineer, AP Transco,

Nandikotkur on 25.08.2001. Ex.P-3 is the same representation

addressed to the Assistant Divisional Engineer on the same day.

Both are in his hand writing. Ex.P-4 is the copy of application

dated 25.08.2001 addressed to the Line Inspector, AP Transco,

Pagidyala.

16. PW.2, mediator to the pre trap and post trap proceedings,

deposed the fact that after completion of the post trap

proceedings, he along with the DSP proceeded to Sub-Station, AP

Transco, Pallamarri, Pagidyala and they found the application of

PW.1 in the log book. They have taken it from the log book and the

said application is Ex.P-8. It bears his signature and the signature

of the other mediators and the DSP, ACB. PW.10, the Trap Laying

Officer, supported this evidence of PW.2 with regard to seizure of

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Ex.P-8 application of PW.1 from the log book in the Electricity

Office.

17. Prosecution examined PW.3 to speak to the fact that PW.1

on 26.08.2001 at 08:00 a.m. gave Ex.P-4 application to him and

he kept Ex.P-4 in the log book and informed the same to

Srinivasulu, Operator. The prosecution examined him to prove

official favour and he did not support the case of the prosecution.

On the other hand, he deposed that on 26.08.2001 when PW.1

came to him and enquired about AO, he told him that AO went on

camp. Prosecution got declared him as hostile. During cross -

examination he denied that he stated before ACB Inspector as in

Ex.P-9.

18. Prosecution examined PW.4 to prove official favour and the

role attributed to PW.4 is that after trap PW.4 searched the

application made by PW.1 addressed to AO and he found it in log

book and handed over to ACB officials. But, he did not support the

case of the prosecution. According to him, on the date of trap at

09:30 p.m. some person came to his Sub-Station and asked him

log book and he handed over the log book. He did not see the

application form, which they took from the log book. The Special

Public Prosecutor got declared him as hostile and during cross-

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examination, he denied that he stated before ACB Inspector, as in

Ex.P-10 (161 Cr.P.C statement).

19. Prosecution further examined PW.5, younger brother of the

de-facto complainant, and he did not support the case of the

prosecution with regard to the incident that was happened on

12.08.2001 at his house. However, he deposed that he came to

know that service wire attached to his house was cut off and fell in

their house. The evidence of PW.5 was challenged by the Special

Public Prosecutor and he denied during the course of cross -

examination that he stated before ACB, Inspector as in Ex.P-11.

20. The prosecution further examined PWs.6 and 7, the

important witnesses, to prove the pendency of the official favour.

The evidence of PW.6 in substance is that previously he worked as

Sub-Engineer, APCPDCL at Nandikotkur. At that time, Sri P.

Venkateswarlu was his ADE. The then AE (Operation) was Sri

Sahadevudu and AAE, Nandikotkur was Sri Y. Achireddy. On

25.08.2001 one person by name P. Venkataiah came to his office

at 11:00 a.m. and presented two applications; one is addressed to

Assistant Engineer and another is addressed to ADE. On that day,

both ADE and AEE were not present as they went on other duties.

After receiving the said applications from PW.1, he made an

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endorsement on both the applications. Exs.P-2 and P-3 are the

said applications, which he received. Witness identified his

endorsements on them. The said applications were for change of

damaged service wire of neighbor of PW .1. On the next day

happened to be Sunday, on Monday i.e., on 27.08.2001 at 10:00

a.m. both AEE and ADE came to the office and he handed Ex.P -2

to AAE and Ex.P-3 to ADE. They made endorsements on Exs.P -2

and P-3 respectively. The ADE made an endorsement wi th

instruction to him to inform the same to AE, Rural, Nandikotkur

to attend the complaint. Accordingly, he informed the same to Achi

Reddy. Nagaraju i.e., AO was the Line Inspector of Nandikotkur,

Pagidyala at that time.

21. The evidence of PW.7 is that previously he worked as

Assistant Divisional Engineer, Nandikotkur. PW.6 worked as Sub-

Engineer and Achireddy worked as AE Rural. AO worked as Line

Inspector, Pagidyala. On 25.08.2001, he went for taking H.T.

Reading in Jupadu Bungalow. Next day happen ed to be a Sunday,

he attended the office on 27.08.2001. On that day, Achireddy and

PW.6 also attended the office. PW.6 handed over him one

application, Ex.P-3, which was received by him on 25.08.2001. He

made endorsement on it giving the instructions to Achireddy, AE

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Rural, to attend and report back the compliance. The application

was for replacement of damaged service wire. He further testified

that the registered consumer or the person affected due to damage

of the service wire can supply for the new service wire and after

verification the new service wire can be connected to avoid the

danger. The local Lineman shall attend the line work of the pole

along with the helper. The Lineman or Helper has no authority to

collect money from the registered consumer or any other person to

purchase service wire or any other material. The Department

Rules will not permit such things. The Lineman or Helper is not

entitled to collect from the consumer or any other person the

labour cost to replace the service wire.

22. Prosecution further examined Y. Achireddy, whose evidence

in substance is that on 27.08.2001 he, PW.7 and PW.6 attended

the office at Nandikotkur. PW.6 handed over him an application

dated 25.08.2001 presented by PW.1 and another application of P.

Venkataiah to ADE. He (PW.8) made an endorsement on Ex.P -2.

PW.7 instructed him to verify and if required change the service

wire. He (PW.8) tried to entrust the said work to AO but he could

not get him. He further has spoken about the duties of the Line

Inspector i.e., to attend maintenance of transformers and 33 KV

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23

Line fault rectifications, LT Line fault rectifications, low tension

fault rectifications, attending the complaints of the consumers and

changing of the service wire from one place to another place.

Helper is there to help the Lineman. Registered consumer has to

supply the service wire. Line Inspector is not authorized to collect

money from the consumer.

23. Admittedly, it is a case where the prosecution examined

PW.3 to speak to the fact that on 26.08.2001 PW.1 came and

presented Ex.P-4 to him and in turn he informed the same to

Srinivasulu, Operator, to communicate the said application to AO.

He did not support the case of the prosecution. So, PWs.3 and 4

exhibited hostile attitude. It is amply proved by virtue of the

evidence of PW.11, the ACB Inspector, who deposed that PWs.3

and 4 stated before him as in Exs.P-9 and P-10 respectively. As

seen from the evidence of PW.4, he was a custodian of the log

book. So, when he was custodian of the log book, he was supposed

to say what was there in the log book. According to him, he did not

see the application form which the ACB officials took from log

book. All this goes to show that, for obvious reasons, PWs.3 and 4

turned hostile to the case of the prosecution. Though PW.5, the

brother of PW.1, turned hostile but his evidence is not material

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24

here for the reason that there was no dispute about the fact on

12.08.2001 when there was rain, the live wire which was

connecting to the house of Savaraiah fell into the premises of

PW.1. Hence, merely because PWs.3 to 5 did not support the case

of the prosecution, the case of the prosecution cannot be

disbelieved.

24. On the other hand, prosecution examined PWs.6, 7 and 8 to

speak to the fact that on 25.08.2001 PW.1 came to the electricity

office at Nandikotkur and presented Exs.P-2 and P-3 applications.

Turning to the evidence of PW.6, in cross-examination, he deposed

that PW.1 did not meet him prior to 25.08.2001. Without the

consent of the consumer, department cannot r ectify the

deficiency/discrepancy in the service wire. Department would not

supply service wire to the consumer. It would be purchased by the

consumer in the market. On the applications under Exs.P-2 and

P-3 department can take action with consent of both the

consumers. Turning to the evidence of PW.7, there is no dispute

that PW.1 met PW.6 on 25.08.2001 and submitted Exs.P -2 and

P-3 applications. During the course of cross-examination of PW.6

also these facts are not in dispute. PW.7 testified in cro ss-

examination that the consumer has to bear the expenses for

purchase of new service wire. If there is necessity to erect another

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25

pole, consumer has to pay the costs of the pole also. He cannot

say that there was no understanding between PW.1 and AO to

replace the service wire and that PW.1 requested the Lineman to

purchase the required material. The said procedure is not correct.

In order to avert the danger, the consumer and lineman can come

to an understanding to replace the old service wire by purchasing

wire from the market.

25. It is to be noticed that the defence of the AO before PW.1

was that PW.1 handed over a sum of Rs.700/ - to AO during the

post trap with a request to purchase new service wire and that

amount was not on account of any demand to pay bribe. In that

view of the matter, certain questions were suggested to PWs.6 and

7 during cross-examination and they did not support the theory of

the AO. According to them, it was the consumer, who had to

purchase the wire and the department will not permit for purchase

of such live wire by any Lineman.

26. Turning to the cross-examination part of PW.8 – Y. Achi

Reddy, he deposed in cross-examination that the neighbor of PW.1

Savaraiah is also their consumer. On the consent PW.1, registered

consumer and Savaraiah they can act for replacement of the

service wire. Without application of the registered consumer, the

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26

registered consumer and neighbor can come to an understanding

to replace the wire. They did not take any action against Exs.P-2

and P-3 applications. It is basing on all these answers elicited from

the mouth of PW.8 the contention of AO is that the applications of

PW.1 did not reach to him.

27. In the light of the peculiar facts and circumstances, the

prosecution established the fact that PW.1 approached PW.6 and

submitted two applications under Exs.P -2 and P-3 and they

ultimately reached PW.8. According to PW.8, he did not try to

contact AO as he could not get him. Now this Court has to see as

to whether simply because PW.8, the concerned AEE f ailed to

communicate to AO about the applications of PW.1 i.e., Exs.P-2

and P-3 can it be said that the official favour in respect of the work

of PW.1 was not within the knowledge of AO, as such it was not

pending with AO?

28. At the outset, this Court would like to make it clear that

PW.1 did not allege that either on the next day of 12.08.2001 i.e.,

on 13.08.2001 or 19.08.2001 or 20.08.2001 AO demanded him to

pay bribe. His case is that on those dates AO assured to attend the

work but he did not attend the work. So, the first allegation about

the demand of bribe of AO was said to be on 24.08.2001. So,

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27

according to the contents in Ex.P-1 and according to the evidence

of PW.1 when he met the AO at Chandraiah Beedi Bunk on

24.08.2001, AO demanded bribe of Rs.1,000/- and he agreed to

pay Rs.700/-. According to Ex.P-1, AO asked him to file a written

request in the electricity office. So, till 25.08.2001 PW.1 did not

make any application with the office of PW.6. So, the case of the

prosecution is to be appreciated with the regard to the incidents

that were happened from 24.08.2001. So, 24.08.2001 was the day

on which AO is alleged to have demanded PW.1 to pay bribe.

25.08.2001 was also the day on which PW.1 submitted written

application to the Assistant Engineer and Assistant Divisional

Engineer in the office of Assistant Divisional Engineer. 26.08.2001

was the day on which PW.1 submitted another application in the

Sub-Station, Pagidyala means for AO. It was also the so called

date on which AO demanded him to pay bribe of Rs.700/- to bring

on the next day.

29. Now, I proceed to deal with as to whether pendency of the

official favour of PW.1 was within the knowledge of AO. Though,

PW.8 did not contact the AO to explain about the request of PW.1,

as seen from the cross-examination part of PW.1, he deposed that

on 12.08.2001 he did not get the wire removed by Nagaraju (AO)

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28

by disconnecting the sub line. He stated before the Magistrate that

on 12.08.2001 he met the AO and got disconnected the electric

supply and also got the wire removed through AO. It is to be

noticed that the evidence of PW.1 with regard to the fact that on

12.08.2001 when the live wire fell into theIR premises, it gave

huge smoke and sparks as such they got disconnected it has

corroboration from Ex.P-1. It is immaterial as to whether PW.1 got

it done on his own or with the help of AO. Simply because PW.1

stated before the Magistrate that on 12.08.2001 he got

disconnected electric supply with the help of AO, he cannot be

branded as an unreliable witness as contended by the appellant.

He further during the course of cross-examination deposed that

the trap took place at 07:00 p.m. At that time there was a light at

the bunk of Chandraiah. Chandraiah was present in the Beedi

Bunk at that time of conversation that took place between him

and AO he and AO were very nearer to the bunk. AO stated before

the DSP, ACB, Kurnool and mediators that he (PW.1) gave the

amount of Rs.700/- towards the costs of the service and other

materials. He denied that he gave the amount to the AO requesting

to get the material to give fresh wire connection to the house of

Savaraiah, since Savaraiah did not apply for the fresh wire

connection.

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29

30. As seen from Ex.P-7, post trap proceedings, there was a

whisper that AO stated before the DSP that PW.1 gave an amount

of Rs.700/- to him with a request to purchase new wire for fresh

service connection to the pole. There is no dispute about the

duties to be performed by the AO. AO was the Line Inspector, who

was supposed to shift the live wire to another pole. This aspect is

not in dispute. So, it is altogether a different aspect as to whether

AO has accepted the amount of Rs.700/- from PW.1 at all towards

bribe as alleged by the prosecution or towards purchase of the

wire at the instance of PW.1 as claimed by the AO. So, the fact is

that AO was within his knowledge by virtue of his defence in the

post trap proceedings that he had to attend the official favour in

respect of the work of PW.1. If AO was not having any knowledge

whatsoever with regard to the official favour to be done in respect

of the application of PW.1, there would be no occasion for him to

accept Rs.700/-, even according to his defence to purchase the

wire. Therefore, irrespective of as to whether Exs.P-2 and P-3

applications could reach the AO or irrespective of the evidence of

PW.8 that he could not get the AO with regard to the request of

PW.1 but the thing is that AO had knowledge about the official

favour in respect of the work of PW.1 to be performed by him. In

my considered, the prosecution before the Court below

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30

categorically proved that the AO had to attend the official favour in

respect of the application of PW.1 so as to shift the live wire to

another pole which was passing through the premises of PW.1.

31. Now, another crucial thing that has to be considered by this

Court is as to whether the prosecution proved that prior to the

trap and on the date of trap AO demanded PW.1 to pay bribe of

Rs.700/- and ultimately accepted the same during the post trap.

The substance of the allegations under Ex.P-1 are such that on

24.08.2001 at about 08:00 p.m. when the complainant was at the

hotel and when he met the AO to shift the live wire, he demanded

bribe of Rs.1,000/- and he expressed his inability to do so and

ultimately he agreed to pay only Rs.700/- and AO asked him to

give a report to the AE with such request for shifting of the live

wire. It is also alleged in Ex.P-1 that on 26.08.2001 also AO

demanded him to pay the bribe and asked him to bring the bribe

amount by the next day. PW.1 in his testimony has spoken about

the demand alleged to be made by the AO on 24.08.2001 and

26.08.2001. So, the evidence of PW.1 with regard to the allegations

of demand of bribe on 24.08.2001 and 26.08.2001 has support

from the contents of Ex.P-1. During the cross-examination, PW.1

denied a suggestion that he did not meet AO on 24.08.2001 and

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31

26.08.2001 because on those days AO was on camp. He denied AO

was on camp at Kusumalli on 24.08.2001 and at Nandikotkur on

26.08.2001 and on those days he was attending special drive

collection. He denied that his version that he met the AO on those

days and AO demanded the bribe amount is false. So, the defence

of AO is that on the dates of alleged demand on 24.08.2001 and

26.08.2001 there was no possibility for PW.1 to meet him because

he was attending on special drive.

32. PW.3, as pointed out, was a hostile witness. He was

examined by the Trap Laying Officer to speak about pendency of

the official favour but he deposed that on 26.08.2001 Sunday

morning he was available in the office of AP Transco and at 08:00

a.m. PW.1 came there and asked him about the AO and he

informed him that AO went on camp. As pointed out, the

testimony of PW.3 was found to be hostile by virtue of the evidence

of PW.11 - ACB Inspector, who recorded his statement. He testified

that PW.1 stated before him as in Ex.P-9. It is interesting to note

that PW.3 did not testify that on 24.08.2001 AO was on special

drive. AO got elicited from the mouth of PW.7, the then Assistant

Divisional Engineer, during cross-examination, that as per TA Bill

on 23.08.2001 AO left Pagidyala by 08:00 a.m. to Lakshmapuram

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via Nandikotkur and returned to Pagidyala by 09:00 p.m. On

24.08.2001, AO left Pagidyala at 07:30 a.m. to Muchumarri via

Nandikotkur and returned by 09:00 p.m. He (PW.7) counter-signed

the TA Bill. It is to be noticed that 23.08.2001 had nothing to do

with reference to the allegations of the prosecution attributed

against AO that on 24.08.2001 and 26.08.2001 AO demanded

PW.1 to pay bribe. So, it is clear that PW.7 did not testify anything

in his cross-examination with regard to the so called absence of

the AO on 26.08.2001. If really, AO was on special drive on

26.08.2001 he would have elicited an answer from cross -

examination of PW.7 with regard to the claim of AO for TA Bill on

26.08.2001 also.

33. Now, it is a matter of appreciation as to whether the so

called TA Bill pertaining to the month of August with regard to the

date 24.08.2001 showing the time of departure of AO from

Pagidyala and returning to the Headquarters at 07:30 a.m. and

09:00 p.m. respectively is believable or not. At the outset, this

Court would like to make it clear the so called claim made by AO

for the month of August, 2001 was subsequent to the trap. So, it

is quite natural for a person like AO to make something borne out

by the record to escape from the allegations of the demand of bribe

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on 24.08.2001. Apart from this, the evidence adduced by the AO

negatives his defence to any extent. AO examined DW.2 to speak

the motive for his false implication. So, in that context, DW.2 was

examined by the AO to put forth a theory that PW.1 was due some

amount to Chandraiah, the owner of the Beedi bunk, and

Chandraiah, the owner of the beedi bunk instructed PW.1 to pay

the said amount to AO, as such PW.1 bore grudge against AO. It is

altogether a different aspect as to whether the evidence of DWs.1

and 2 is believable. To negative the defence theory that AO was on

camp on 24.08.2001 as such there was no possibility for him to

meet PW.1, the evidence of DW.2 is very crucial. Needless to point

out here that, according to the allegations in Ex.P-1 and the

evidence of PW.1, PW.1 met the AO on 24.08.2001 at Chandraiah

bunk around 08:00 or 08:30 p.m. Here the evidence of DW.2

means that on 24.08.2001 he went to beedi bunk of DW.1 at

07:00 p.m. for paper collection and during that time AO, PW.1 and

DW.1 were present at the shop. Here is a case that AO got an

answer from PW.7 that according to the TA bill of AO on

24.08.2001 he could return to headquarters 09:00 p.m. but here

according to DW.2, AO was physically present at 07:00 p.m. on

24.08.2001 at kirana shop of DW.1 at Pagidyala village. So, the

evidence of DW.2 negatives the defence theory that on 24.08.2001

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AO was not available at Pagidyala at 08:00 or 08:30 p.m. It goes to

show that purposefully AO made a TA claim showing the timings

as per his convenience. So, the evidence spoken to by PW.1 with

regard to the presence of AO in Pagidyala village at 08:00 or 08:30

p.m. is fully convincing and it is supported by the evidence of

DW.2. So, the AO miserably failed to probablize a theory that he

was not available on 24.08.2001 at the alleged time when he

demanded PW.1 to pay bribe.

34. Coming to the allegations dated 26.08.2001, if really, AO

was on a special drive, he would have got a favourable answer

from PW.1 with regard to TA bill dated 26.08.2001. Even according

to the evidence of PW.1 on 26.08.2001 evening, he met the AO at

07:00 p.m. and then AO demanded bribe of Rs.700/-. According to

the evidence of PW.3, as this Court already pointed out, his

evidence is not at all believable. AO did not examine any person to

show his absence on 26.08.2001 at Pagidyala village. Hence, the

evidence of PW.1 even with regard to the demand attributed

against AO on 26.08.2001 to the effect that on that day evening

when he met AO, he demanded bribe of Rs.700/ - is found to be

reliable. AO miserably failed to probablize his defence theory with

regard to his absence on 24.08.2001 and 26.08.2001.

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35. In the light of the above reasons, the evidence of PW.1 is

fully convincing. By examining PW.1, the prosecution has

categorically proved i.e., the demand made by AO on 24.08.2001

and 26.08.2001 with PW.1 to pay the bribe amount.

36. According to the allegations on 27.08.2001 AO demanded

PW.1, during the post trap, to pay the bribe of Rs.700/ - and

accepted the same. There is evidence in this regard of PW.1. His

evidence with regard to pre trap and post trap proceedings is such

that after he presented Ex.P-1, the DSP asked him to come on the

next day at 11:00 a.m. along with the proposed bribe of Rs.700/-.

He deposed that he went to the State Guest House, Kurnool along

with the bribe and DSP introduced the mediators and the

mediators enquired him as to the allegations in Ex.P-1 and he

confirmed the same and the DSP took the bribe amount and

directed the constable to apply phenolphthalein powder to the

currency notes and that amount was kept in his left side shirt

pocket and the DSP explained the importance of phenolphthalein

powder and demonstrated chemical test and asked him to pay the

tainted amount to the AO on further demand and to relay the pre

arranged signal. With regard to the post trap, he deposed that at

04:00 p.m. he waited near the Chandraiah bunk. He did not find

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the AO. He informed the same to DSP. DSP, ACB asked him to

wait till arrival of AO. AO came to Chandraiah beedi bunk at 07:00

p.m. As asked by AO, he informed that he brought the amount.

AO asked him to pay the bribe. He took the amount from his shirt

pocket and gave it to AO. AO counted it and kept it in his left side

shirt pocket. Then, he relayed a pre arranged signal. Trap party

members came there. DSP asked him as to what happened. He

stated to the DSP as to what happened. He was asked to stay at a

distance for some time and after some time DSP called him and

mediators asked him as to what happened. He narrated the

things. Mediators noted down what all he stated. ACB Inspector

examined him and he recorded his statement. He also gave a

statement before the learned Magistrate under Section 164 Cr.P.C.

37. The evidence of PWs.2 and 11, the mahazar witness to the

trap proceedings and Trap Laying Officer shows consistency with

the evidence of PW.1. The evidence of PWs.2 and 11, shows that

after receiving pre arranged signal they rushed to the beedi bunk

of Chandraiah and asked the AO as to whether he demanded the

bribe and AO produced the tainted amount and when both hand

fingers of AO were subjected to chemical test, they yielded positive

result and the serial numbers of the currency notes which were

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37

noted in the pre trap proceedings were found to be tallied with the

tainted amount recovered from the AO. The evidence of PW.1 that

he handed over the amount to AO during the post trap on further

demand and the evidence of PWs.2 and 11 that amount was

recovered from the AO means that AO accepted the tainted

amount from PW.1 and later it was recovered from AO during the

post trap. Therefore, it is proved that AO dealt with the tainted

amount.

38. The defence of the AO in this regard is two fold. One is the

motive on the part of the PW.1 regarding the so called false

implication; another is that he accepted the amount from PW.1 to

purchase a new wire for the purpose of replacement. Firstly, I

would like to deal with the so called motive for false implication.

During cross examination, PW.1 denied a suggestion that he owed

Rs.5,000/- to Chandraiah, beedi bunk owner and Chandraiah

directed him to pay the said amount to AO and that AO demanded

him to pay the said amount to him and therefore being insulted

before the beedi bunk by others, he got laid a false trap against

the AO. So, PW.1 denied the defence of the AO. From the above

said suggestion it is not understandable as to why AO could

intermediate between PW.1 and beedi bunk owner Chandraiah to

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see that PW.1 would hand over the amount to AO and that AO

would hand over the amount to Chandraiah. However, in

pursuance of the defence theory, AO examined DWs.1 and 2. Their

dates of examination before the Court below was on 13.06.2006

and 26.06.2006 respectively and further chief examination of

DW.3 in different context was on 26.06.2006. After completing the

evidence, AO got recalled PW.1 on 09.01.2007. PW.1 was recalled

on 25.01.2007. He deposed in cross-examination that he executed

Ex.D-1 promissory note in favour of Chandraiah for the amount

due to him for purchase of groceries from DW.1. He executed a

promissory note on 05.04.2000. One Arjun and Sri Ramulu

witnessed and attested Ex.D-1. On 05.02.2003, he made part

payment of Rs.1,000/- to Chandraiah and got endorsed it. Ex.D-2

is the part payment endorsement. During re-examination by the

learned Special Public Prosecutor, he denied that Exs.D-1 and D-2

are brought into existence recently at the instance of the AO. So,

the prosecution denied the genuinity of Exs.D-1 and D-2. It is no

doubt true that the AO did not examine the so called Arjun and

Sriramulu. Even otherwise, the evidence of PW.1 in further cross-

examination went contra to his earlier denial that was made in

cross-examination that he owed a sum of Rs.5,000/- to the beedi

bunk owner Chandraiah and Chandraiah directed him to pay the

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amount to AO. All this goes to show that for one reason or the

other AO managed PW.1 after examination of DWs.1 to 3 and got

an answer that he executed Ex.D-1 in favour of beedi bunk owner

Chandraiah. By virtue of the above answer his examination -in-

chief remained un-affected in any way.

39. Even otherwise, any amount of inconsistency can be seen in

the evidence of DWs.1 and 2. To find any g enuineness in the

testimony of PW.1 in his cross-examination by way of recall after

completion of the evidence, it is appropriate to look into the

conduct of DWs.1 and 2. According to DW.1 - Chandraiah, PW.1

became due of Rs.5,000/- to him. He demanded PW.1 to repay his

debt. In the 2

nd

week of August, 2001, PW.1 and AO came to him

and he asked PW.1 to repay the amount of Rs.5,000/ -. Prior to

that he borrowed Rs.5,000/- from AO and promised to repay the

amount, after PW.1 paid the amount to him. So, he asked AO to

collect the amount of Rs.5,000/- from PW.1. PW.1 agreed to pay

the amount to AO. AO asked PW.1 to pay Rs.5,000/- to him. PW.1

replied that he had no money. PW.1 expressed his inability to pay

the amount to AO and asked him to do whatever he wanted to do.

All this in the evidence of DW.1 was not suggested to PW.1 during

the course of original cross-examination or the cross-examination

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40

after recall. So, it is an afterthought that AO examined DW.1 to

come out from the case. Further exaggeration in the evidence of

DW.1 is that according to him on 27.08.2001 PW.1 and AO came

to his beedi bunk during evening and PW.1 asked AO that his

service wire was damaged and requested him to replace and AO

asked PW.1 to get the service wire and PW.1 asked the AO to

purchase it and PW.1 informed to AO that he got Rs.700/ - with

him and so saying he kept the amount in the shirt pocket of AO. It

is to be noticed that it is not the defence of AO that PW.1 thrust

the amount in his shirt pocket. So, according to AO in the post

trap version, PW.1 gave the amount to him with a request to

purchase the wire. The version of AO in the post trap is a matter

for consideration. So, it is clear that the evidence of DW.1 that

PW.1 kept the amount in the short pocket of AO is nothing but an

improved version with falsity. No reliance can be placed upon the

evidence of DW.1.

40. Similarly, DW.2 claimed to be an agent of Eenadu news

paper and as this Court already pointed out, he supported the

presence of AO on 24.08.2001 around 07:00 p.m. As t his Court

already pointed out the defence of the AO with regard to the fact

that he owed a sum of Rs.5,000/- to PW.1 and further PW.1 owed

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a sum of Rs.5,000/- to DW.1 and DW.1 asked PW.1 to pay the

amount to the AO and PW.1 expressed his inability and ultimately

PW.1 developed grudge against AO is nothing but improbable and

it is not believable. Now, coming to the evidence of DW.2, he has

gone to the extent of saying about the things that were happened

during the post trap. According to him on 27.08.2001 at 07:00

p.m. Nagaraju and Venkataiah were present at the shop of DW.1.

Then Venkataiah kept money in the hands of AO stating that it is

the amount for service wire to be purchased. As this Court already

pointed out, it is never the defence of the AO that PW.1 thrust the

amount in his shirt pocket or thrust the amount in his hands. On

the other hand, his version is that PW.1 handed over a sum of

Rs.700/- to purchase wire. So, even the evidence of DW.2 suffers

with any amount of exaggeration. The conduct of AO is such that

he developed various versions from stage to stage to suit his

defence with any amount of inconsistency. So, virtually the

evidence of DW.2 deserves no consideration.

41. When the evidence of DWs.1 and 2 suffers with any amount

of untruth and improbable circumstances, their evidence cannot

be believed.

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42. Turning to the testimony of DW.3 – Savaraiah, his evidence

has nothing to do with the post trap events. The AO got examined

Savaraiah. He deposed that the service wire passes from the

terrace of PW.1 to his house was cut at the house of PW.1. PW.1

with a private electrician and through him it was reconnected. He

told him that since the service wire was creating problem, he

would ask Deputy Transco to erect a pole near their house and

that he will incur the necessary expenditure in that regard.

43. In my considered view, the evidence of DW.3 at best further

supports the case of the prosecution with regard to the wire which

was passing through his house fell into the house of PW.1. It is

not his evidence that he was physically present during the post

trap. His evidence is not on the similar lines of the evidence of

DWs.1 and 2. Therefore, the evidence of DW.3 in any way is not

useful to the case of the AO.

44. In the light of the above, AO miserably failed to probabilize

the motive for his false implication. Coming to the defence theory

in the post trap proceedings that PW.1 handed over the amount to

AO to purchase a new wire, his evidence from the testimony of

PW.6 such a course of action is not at all possible and it is against

the Rules. He categorically deposed in cross-examination that the

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consumer has to purchase the wire in the market and it will be

purchased by the consumer and lineman will attend the repair

works. Prosecution got elicited from PW.7, keeping in view the

defence theory in the post trap and according to PW.7 the

consumer has to meet out the expenditure. His specific evidence is

also that the department will not permit any things for purchase of

the wire by the lineman and collecting the amounts from

consumer. Though AO is able to elicit that if the consumer and the

lineman can arrive at a conclusion that the lineman can purchase

the wire by taking the amount from the consumer, but the facts

and circumstances are such that a ny such probability or

possibility can altogether be excluded in the given situation. The

defence theory is that PW.1 bore grudge against AO when AO

asked him to pay the amount due by him to the beedi bunk owner.

In such circumstances, no man of reasonable prudence would

venture to accept the amount from a person like PW.1 to purchase

the electricity wire. In my considered view, the defence of AO in the

post trap proceedings is nothing but an afterthought when he was

caught hold red-handedly while accepting the bribe amount from

PW.1. In view of the above, I am of the considered view that the

contention of AO that he accepted the amount from PW.1 to

purchase wire cannot stand to any reason. The conduct of AO in

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44

improving his defence from stage to stage even by going to the

extent of adducing evidence with any amount of untruth further

negatives his defence that he accepted the amount for purchase of

new service wire only. As AO dealt with the tainted amount, now

there arises a presumption under Section 20 of the PC Act. Section

20 of the PC Act runs as follows:

―20. Presumption where public servant accepts

gratification other than legal remuneration —

(1) Where, in any trial of an offence punishable under

Section 7 or Section 11 or clause (a) or clause (b) of sub-

section (1) of Section 13 it is proved that an accused person

has accepted or obtained or has agreed to accept or

attempted to obtain for himself, or for any other person, any

gratification (other than legal remuneration) or any valuable

thing from any person, it shall be presumed, unless the

contrary is proved, that he accepted or obtained or agreed to

accept or attempted to obtain that gratification or that

valuable thing, as the case may be, as a motive or reward

such as is mentioned in Section 7 or, as the case may be,

without consideration or for a consideration which he

knows to be inadequate.

(2) Where in any trial of an offence punishable under

Section 12 or under clause (b) of Section 14, it is proved

that any gratification (other than legal remuneration) or any

valuable thing has been given or offered to be given or

attempted to be given by an accused person, it shall be

presumed, unless the contrary is proved, that he gave or

offered to give or attempted to give that gratification or that

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45

valuable thing, as the case may be, as a motive or reward

such as is mentioned in Section 7, or, as the case may be,

without consideration or for a consideration which he

knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1)

and (2), the court may decline to draw the presumption

referred to in either of the said sub -sections, if the

gratification or thing aforesaid is, in its opinion, so trivial

that no interference of corruption may fairly be drawn.‖

45. Coming to the present case on hand, as this Court already

pointed out prosecution has proved the allegations of demand

prior to the date of trap and on the date of trap and acceptance of

the bribe amount from AO. The Hon‘ble Supreme Court in Neeraj

Dutta v. State (Government of NCT of Delhi)

3

, presided over by a

Constitutional Bench elaborately dealt with the essential

ingredients of Sections 7, 13(1)(d) R/w.13(2) and 20 of the PC Act

and insofar as Section 7 of the PC Act is concerned on the proof of

the facts in issue, Section 20 mandates the Court to raise a

presumption that the illegal gratification was for the purpose of a

motive or reward as mentioned in the Section and such

presumption has to be raised by the Court as a legal presumption

or a presumption in law. Of course the said presumption is also

subject to rebuttal.

3

(2022) SCC OnLine SC 1724

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46

46. Coming to the present case on hand, the prosecution has

the benefit of presumption under Section 20 of the PC Act. The

defence of the AO with regard to the false implication is not

tenable. Further, the defence of the AO that he accepted the

amount of Rs.700/- from PW.1 to purchase new wire cannot stand

to any reason. In my considered view, AO failed to rebut the

presumption available to the case of the prosecution under Section

20 of the PC Act.

47. Turning to the decision of the Hon‘ble Supreme Court in

Shanthamma (1

st

supra), relied upon by learned counsel for the

appellant, it is a case where the learned Special Judge recorded an

order of conviction against the AO. The Appeal filed by the AO was

dismissed, and then the AO filed an Appeal before the Hon‘ble

Supreme Court. It is a case where the prosecution, according to

the evidence available on record, did not prove the demand of

illegal gratification. The Hon‘ble Supreme Court dealt with the

situation that when there was no evidence to prove the allegations

of demand mere recovery of the amount from the AO would not

entail in conviction under Sections 7 and 13(1)(d) R/w.13(2) of the

PC Act. Apart from this, the amount was not recovered from the

physical possession of the AO in the above said case. Under the

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circumstances, the Hon‘ble Supreme Court allowed the aforesaid

Appeal.

48. Coming to the present case, the amount was recovered from

the physical possession of AO i.e., from the left side shirt pocket.

The prosecution adduced consistent and cogent evidence to prove

the allegations of demand. The defence theory for false implication

is not tenable. Further, defence theory that AO accepted the

amount to purchase new wire is not tenable. Hence, the above

said decision is of no help to the AO.

49. Turning to the decision of the High Court of Telangana in

M/s. B. Jagajeevan Rao (2

nd

supra), this Court would like to make

it clear that the factual aspects in the above said case are that the

prosecution alleged two dates on which AO demanded the brib e

i.e., 16.08.2001 and 23.08.2001 and it was held that the evidence

adduced by the prosecution to prove the demands were doubtful.

Under the aforesaid circumstances, the Appeal filed by the

appellant was allowed. Apart from this, the amount was not

recovered from the physical possession of the AO therein. The

cover containing the bribe amount was found in the record room

of RDOs office. The prosecution did not explain as to how the

cover was found in the record room of RDO office when he was

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48

working in the Sub-Treasury Office. The factual aspects in the

above said case stood in a different footing. The appellant in this

case cannot strengthen his defence by relying upon the above said

decision in any way.

50. In the light of the above, this Court is of the considered view

that the prosecution before the Court below categorically proved

the allegations of demand and acceptance of bribe by AO from

PW.1 prior to the date of trap and on the date of trap. The act of

the AO in demanding PW.1 to pay bribe of Rs.700/ - and

consequent acceptance of the same is nothing but an offence

under Section 7 of the PC Act. Further, the amount obtained by

the AO would squarely attract the allegation that he obtained

pecuniary advantage from PW.1 by demanding the bribe as such it

would further establish the essential ingredients of Section

13(1)(d) R/w.13(2) of the PC Act. It is nothing but a criminal

misconduct within the meaning of Section 13 of the PC Act. The

prosecution before the Court below proved the charge s under

Sections 7 and 13(1)(d) R/w.13(2) of the PC Act beyond reasonable

doubt. Hence, in my considered view, the learned Special Judge

rightly appreciated the evidence on record and rightly convicted

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and sentenced the AO. Hence, I see no reason to interfere with the

impugned judgment.

51. In the result, the Criminal Appeal is dismissed as such the

judgment, dated 09.07.2007, in C.C. No.24 of 2002 on the file of

the Court of Additional Special Judge for SPE and ACB Cases, City

Civil Court, Hyderabad shall stands confirmed. MO.5, tainted

currency notes of Rs.700/-, is ordered to be returned to PW.1.

MOs.1 to 4 and MOs.6 to 11 are ordered to be destroyed after

appeal time is over, if available before the Court below.

52. The Registry is directed to take steps immediately under

Section 388 Cr.P.C to certify the judgment of this Court to the

learned Special Judge for SPE and ACB Cases at Kurnool and on

such certification, the learned Special Judge for SPE and ACB

Cases at Kurnool shall take necessary steps to carry out the

sentence imposed against the appellant/accused in Calendar Case

No.24 of 2002, dated 09.07.2007, and to report compliance to this

Court. Registry is directed to dispatch a copy of this judgment

along with the lower Court record, if any, to the learned Special

Judge for SPE and ACB Cases at Kurnool on or before 21.03.2023

in the name of the Presiding Officer concerned. A copy of this

judgment be placed before the Registrar (Judicial), forthwith, for

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giving necessary instructions to the concerned Officers in the

Registry. A copy of this judgment shall also be forwarded to the

Head of the Department of AO for information and further action,

if any.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________

JUSTICE A.V.RAVINDRA BABU

Date: 14.03.2023

DSH