2024 INSC 503 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2024

(Arising out of SLP(Crl.) No(s). 9091 of 2022)

MIR MUSTAFA ALI HASMI .…APPELLANT(S)

VERSUS

THE STATE OF A.P. ….RESPONDENT(S)

J U D G M E N T

Mehta, J.

1. Leave granted.

2. This appeal by special leave filed on behalf of the appellant

lays a challenge to the judgment dated 2

nd August, 2022 passed

by the High Court of Telangana at Hyderabad in Criminal Appeal

No.1036 of 2008, whereby the appeal preferred by the appellant

was dismissed and the judgement dated 5

th August, 2008 passed

by the learned Additional Special Judge for SPE and ACB Cases,

City Civil Court, Hyderabad(hereinafter being referred to as ‘trial

Court’) was affirmed. By the said judgment, the appellant herein

i.e., Accused Officer No.1(hereinafter being referred to as ‘AO1’)

and Accused Officer No.2(hereinafter being referred to as ‘AO2’)

were convicted and sentenced as below:-

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i) Offence punishable under Section 7 of Prevention of

Corruption Act, 1988(hereinafter being referred to as ‘PC

Act’): Rigorous Imprisonment of one year and a fine of

Rs.1,000/- each (in default, simple imprisonment for three

months)

ii) Offence punishable under Section 13(1)(d) read with 13(2)

of PC Act: Rigorous Imprisonment of one year and a fine of

Rs. 1,000/- each (in default, simple imprisonment for

three months)

Both the sentences were ordered to run concurrently.

3. In appeal, the High Court overturned the conviction of AO2

and affirmed the conviction of the appellant(AO1) herein.

4. The case of the prosecution in a nutshell is that the

appellant(AO1) being the Forest Section Officer and co-

accused(AO2-N.Hanumanthu)(since acquitted) being the Forest

Guard were both part of the Flying Squad of the Forest

Department. On 6

th January, 2003, the appellant(AO1) and AO2

had gone to a saw-mill at Vanasthalipuram, purportedly operated

by the complainant Mukka Ramesh(hereinafter being referred to

as ‘PW-1’), which was taken on lease in the name of PW-1’s wife

from one Sri E. Ramachary. During their visit, the appellant(AO1)

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and AO2 detected teakwood lying in the saw-mill. It is alleged that

both the accused (AO1 and AO2), threatened PW-1 that he would

be booked in a case for the illegal and unlicensed possession of

teakwood in the saw-mill. It is further alleged that on the plea of

PW-1, the appellant (AO1) booked a case against one M. Ashok, a

worker in the saw-mill and not against PW-1 and thereafter, a

compounding fee of Rs.50,000/ - was charged, by issuing a

receipt(Exhibit P-2) in the name of M. Ashok.

5. It is further alleged that after their visit on 6

th January, 2023,

the appellant(AO1) and AO2 started demanding mamool (monthly

gratification) to the tune of Rs.5,000/- from the PW-1 under a

threat that they would book a case against him and in that manner

his business would be ruined. Threatening calls were allegedly

made to PW-1 on a regular basis. On 21

st January, 2003, AO2

called PW-1 and asked him to keep the mamool money ready with

further instruction that he would make a call and give directions

for delivery of the said bribe. On 22

nd January, 2003, the

appellant(AO1) called PW-1 and asked him to reach Hotel Quality-

Inn Residency, Nampally(hereinafter being referred to as ‘Hotel

Quality-Inn’), on early morning of 23

rd January, 2003 with the

demanded mamool amount of Rs. 5,000/-. Disinclined to pay the

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bribe, PW-1 lodged a complaint(Exhibit P-1) on 22

nd January, 2003

with Shri G. Ramachander, Deputy Superintendent of Police,

ACB(hereinafter being referred to as ‘DySP’)(PW-10) and a crime

report was registered thereupon. The trap was arranged on 23

rd

January, 2003. The complainant(PW-1), along with his friend

Potagunta Ramesh Naidu(hereinafter being referred to as ‘PW-2’)

reached the ACB office with the currency notes to the tune of

Rs.5,000/- being the bribe amount. Two independent witnesses,

namely, Kathi Srinivas Rao(PW-3) and Md. Mahmood Ali were

summoned to act as mediators(panchas). At 9:45 am, the trap

party conducted the pre-trap proceedings which were recorded in

the memorandum (Exhibit P-4). After completing the pre-trap

proceedings, the trap party, under the leadership of DySP(PW-10)

proceeded to the Hotel Quality-Inn at 10:30 am. The

complainant(PW-1) and PW-2 entered the Hotel and met the

appellant(AO1) in the coffee shop of the said Hotel. It is further

alleged that the complainant(PW-1) offered the bribe amount to the

appellant(AO1) at the coffee shop, who showed reluctance to

accept the same and asked them to follow him into the cellar of the

hotel. The DySP and the other trap party members followed them

from a distance. After reaching the cellar, the appellant(AO1)

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demanded and accepted the bribe amount from the

complainant(PW-1) and pushed it down into the rexine bag which

he was carrying. The prosecution claims that the above sequence

of events which transpired between the appellant(AO1) and the

complainant(PW-1) in presence of PW-2 was also visible to the trap

party which was waiting in the hotel lobby, however, they could

not overhear the conversation.

6. At about 11:25 am, PW-2 came out of the cellar and gave the

pre-arranged signal upon which, the trap party proceeded towards

the appellant (AO1). The DySP(PW-10) questioned him about

having accepted the bribe amount. The complainant(PW-1)

immediately informed the DySP(PW-10) that the appellant(AO1)

had demanded and accepted the bribe amount of Rs.5,000/- from

him and had placed the same in a rexine bag. The hands of the

appellant(AO1) were rinsed in sodium carbonate solution. The

wash of the fingers of his right hand turned pink. The appellant

(AO1), upon being questioned about having accepted the bribe,

stated with trepidation that he had accepted the said amount

towards compounding fee and opened the rexine bag which he was

carrying. The mediator, Kathi Srinivas(PW-3) took out the currency

notes from the rexine bag being held by the appellant(AO1) and on

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verification, numbers of the notes tallied with the numbers of the

currency notes submitted by the complainant(PW-1) at the time of

the pre-trap proceedings. The bribe amount and a diary along with

the rexine bag held by the appellant(AO1) were seized. The diary

too was tested for presence of phenolphthalein because it had also

come into contact of the tainted currency notes which was kept in

the bag. A money-receipt book was also seized (via

memorandum(Exhibit P -6)). The post-trap proceedings were

recorded in the memorandum(Exhibit P-11).

7. The prosecution sanction was procured and upon concluding

the investigation, charge sheet came to be filed against the

appellant (AO1) and AO2 in the Court of learned Additional Special

Judge for SPE and ACB Cases, City Civil Court, Hyderabad. The

learned trial Court framed charges against the appellant(AO1) and

AO2 for the offences punishable under Sections 7, 13(1)(d) read

with Section 13(2) of the PC Act. They denied the charges and

claimed trial. The prosecution examined as many as 11 witnesses

and exhibited 19 documents and 8 material objects in order to

prove its case. The accused (AO1 and AO2) upon being questioned

under Section 313 of the Code of Criminal Procedure,

1973(hereinafter being referred as ‘CrPC’) and when confronted

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with the allegations as appearing in the prosecution evidence,

denied the same and claimed to be innocent.

8. The appellant(AO1) categorically stated in his statement

under Section 313 CrPC, that while he and the complainant(PW-

1) were having coffee in the hotel, he inadvertently left his rexine

bag behind at the coffee shop. He conjectured that the

complainant(PW-1) might have planted the tainted currency notes

in his rexine bag without his knowledge because he was aggrieved

by the fine of Rs.50,000/- imposed upon M. Ashok (employee of

the saw-mill) by the appellant(AO1) earlier.

9. Upon hearing the arguments of the learned defence counsel

and the learned Special Public Prosecutor and after evaluating the

evidence available on record, the trial Court proceeded to convict

and sentence the appellant(AO1) and AO2 as above vide judgment

dated 5

th August, 2008.

10. The said judgment was assailed by both the accused by filing

separate appeals before the High Court of Telangana. The appeal

preferred by AO2 was accepted whereas, the appeal preferred by

the appellant(AO1) was rejected by judgment dated 2

nd August,

2022 which is subjected to challenge in this appeal by special

leave.

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Submissions on behalf of the appellant: -

11. Shri Dama Sheshadri Naidu, learned senior counsel

representing the appellant, vehemently and fervently contended

that the entire prosecution case is false and fabricated. No

convincing evidence was led by the prosecution to prove the factum

of demand of bribe by the AO1(appellant). G.Ramachander(PW-

10) DySP, who was also the Trap Laying Officer(hereinafter being

referred to as ‘TLO’) did not make any effort to get the factum of

demand of bribe verified by means of any independent or tangible

evidence.

12. Shri Naidu submitted that the prosecution failed to prove that

the appellant(AO1) had ever demanded any bribe from the

complainant(PW-1) because neither did the TLO(PW-10) make any

endeavour to get the telephonic conversation between the

complainant(PW-1) and the appellant(AO1) recorded nor did he

make any attempt to place a recording device on the person of the

complainant(PW-1) during the trap proceeding so as to verify the

factum of demand of bribe. Furthermore, other than the interested

witness i.e., PW-2, no independent witness was directed by the

TLO to overhear the conversation which took place between the

complainant(PW-1) and the appellant(AO1) on the day of the trap.

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13. Shri Naidu urged that even the allegation of acceptance of

illegal gratification by the appellant(AO1) is surrounded in a cloud

of dubiety. In order to buttress these submissions, Shri Naidu

drew the attention of the Court to the following admissions as

appearing in the cross-examination of the complainant, Mukka

Ramesh(PW-1): -

“We ordered coffee took ½ an hour for servicing. I removed the

amount and about to give the amount to the AO. I did not give

it to his hand. The accused refused and asked me to come

downstairs. After ordering coffee the coffee being served we 3

took coffee. The Accused No.1 started to going out and we follow

the accused at that time I kept the amount in my pocket and

while going out from coffee inn the amount was with me. We

have to get down the same ramp by 50ft. We have to take turns

After the accused 1 going out I found the bag of him in the hotel

1 picked it up I handed over the bag to the accused 1 after

crossing 2tables in the hotel. Al was going to since I paid the

bill of the hotel I was to little bit late to follow AO. 1. We have to

again pass the ramp down the cellar by about 50ft. Where there

are two different stands for parking motor cycles and four

wheelers. The generators are situated near to the parking stand

of two wheelers. The accused came on two wheeler I asked the

accused 1 to show the papers. He showed the papers to me. It

is not true to suggest that after accused showing the papers to

me I snatched them and myself and Pw2 turned them and

throw them away. It is not true to suggest that I paid the money

to the Accused 1 near the generator and the accused asked me

to put it in bag is false. It is not true to suggest I kept the tainted

amount in the rexyne bag which was left by the accused before

leaving coffee inn and I planted the currency notes in the bag

and handed over it to him and the accused has no knowledge

the tainted amount was in the rexyne bag. It is not true to

suggest that myself and Pw2 used our influence to ACB to

organize the false trap against Alas AO.1 insisted of filing case

against my wife, Manjula. It is not true to suggest that the AO1

and 2 did not telephone me and my statement is false.”

(emphasis supplied)

14. Referring to the above admissions as appearing in the

testimony of the complainant(PW-1), Shri Naidu contended that it

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is clear that the appellant(AO1) had forgotten his rexine bag in the

coffee shop from which the tainted currency notes were recovered

later by the trap party, and it was the complainant(PW-1) who

handed over the same rexine bag to the appellant(AO1). Shri Naidu

urged that fuelled by ulterior motive, the complainant(PW-1)

misused this window of opportunity to plant the tainted currency

notes in the bag of the appellant(AO1).

15. Learned counsel also urged that the prosecution did not take

any steps to get the wash collected from the hands of the

appellant(AO1) during the trap proceedings, tested through the

FSL and thus, there is no corroborative evidence to show that the

appellant(AO1) had accepted or handled the tainted currency

notes as alleged by prosecution.

16. Shri Naidu further contended that the trial Court as well as

the High Court rendered the findings of guilt against the

appellant(AO1) merely on the basis of assumptions and

presumptions drawn from the tainted and vacillating deposition of

the complainant(PW-1) and PW-2, who was admittedly a close

friend of the complainant(PW-1) and thus, he can be categorized

as being an interested witness.

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17. Learned counsel also urged that the TLO(PW-10) was under

an obligation to send an independent shadow witness with the

complainant(PW-1) and PW-2 to oversee and overhear the events

as they unfolded during the course of the transaction of demand

and acceptance of the bribe. Admittedly, neither the mediators nor

any other witness associated in the trap proceedings heard the

conversation which took place between the AO1(appellant), the

complainant(PW-1) and PW-2, despite the positive case that they

all were sitting on the nearby table. It was the complainant(PW-1)

who voluntarily took his friend, PW-2, and got him associated

during the trap proceeding. As per Shri Naidu, this was a clear

attempt by the complainant(PW-1) in connivance with the TLO(PW-

10) to create evidence through a partisan witness acting and

hence, the prosecution is guilty of deliberately associating an

interested witness so as to fortify the alleged transaction of

demand and acceptance of bribe.

18. Shri Naidu urged that the High Court cursorily brushed aside

the crucial admission as appearing in the cross-examination of the

complainant(PW-1)(reproduced supra) that the rexine bag of the

appellant(AO1) from which the tainted currency notes were

recovered had been handled by the complainant(PW-1), by

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observing that this was an afterthought. As per Shri Naidu, the

said vital admission was spontaneously elicited during the cross-

examination conducted from the complainant(PW-1) and thus, it

cannot be ignored as being an afterthought. He contended that the

prosecution consciously chose not to re -examine the

complainant(PW-1) on this aspect of his testimony and thus, the

defence cannot be denied to the benefit thereof.

19. Shri Naidu, further contended that no calls were made by the

appellant(AO1) to the complainant(PW-1) proximate to the date of

the trap. He drew the attention of the Court to the call detail

records(CDR) of the appellant(AO1) and the complainant(PW-1)

and urged that only two calls were exchanged between the

appellant(AO1) and the complainant(PW-1), one being on 8

th

January, 2003 and the other on 17

th January, 2003 and hence,

the allegation made by the complainant(PW-1) in the FIR and in

his deposition, that the appellant(AO1) called him on 21

st January,

2003, 22

nd January, 2003 and 23

rd January, 2003 in connection

with demand of bribe is falsified, creating a grave doubt on the

veracity of the entire prosecution case.

20. Attention of the Court was also drawn to the pertinent

admission made by the complainant(PW-1) in his testimony that

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while they were having coffee in the coffee shop of the Hotel

Quality-Inn, he took out the bribe amount and offered it to the

appellant(AO1) who refused to accept the same. Shri Naidu thus,

urged that it is crystal clear that the prosecution miserably failed

to prove that the appellant(AO1) demanded or accepted any bribe

amount from the complainant(PW-1).

21. On these grounds, learned senior counsel appearing for the

appellant implored the Court to accept the appeal, set aside the

impugned judgments and direct acquittal of the appellant(AO1)

from the charges.

Submission on behalf of the respondent-State: -

22. Per contra, learned standing counsel appearing for the State,

vehemently and fervently opposed the submissions advanced on

behalf of the appellant(AO1). He contended that the appellant(AO1)

being the Forest Section Officer firstly, imposed an unwarranted

fine amount of Rs.50,000/ - on the saw-mill of the

complainant(PW-1). Thereafter, extending a threat of repeated

action thereby harming the business of the complainant(PW-1),

the appellant(AO1), demanded a monthly amount of Rs.5,000/- as

bribe(mamool) from the complainant(PW-1) which fact is duly

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corroborated from the evidence of the complainant(PW-1) and PW-

2.

23. He urged that at the time of preparation of the memorandum

of the post-trap proceedings(Exhibit P-11), the appellant(AO1)

admitted that he had received the amount from the

complainant(PW-1), offering a far-fetched explanation that the

same was received as compounding fee in a case whereas, no such

case was pending. It was thus, contended that this admission

made by the appellant(AO1) can be read against him. The

subsequent plea set up by the appellant(AO1) that the currency

notes were planted by the complainant(PW-1) himself in his rexine

bag without his knowledge is unacceptable on the face of record

and that such frivolous defence plea was rightly discarded by the

trial Court and the High Court.

24. He further urged that the appellant(AO1), having failed to

offer a plausible explanation regarding the tainted currency notes

found from the rexine bag in his possession and so also to the

presence of phenolphthalein on the fingers of his right hand, was

rightly convicted by the trial Court and his conviction was

justifiably affirmed by the High Court. He thus, implored the Court

to dismiss the appeal and affirm the impugned judgments.

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Discussion and Conclusion: -

25. We have given our thoughtful consideration to the

submissions advanced at bar and have perused the impugned

judgments. With the assistance of learned counsel for the parties,

we have thoroughly examined the evidence available on record.

26. Since fervent arguments were raised on behalf of the parties

on the aspect of demand of bribe, it would be useful to recapitulate

the relevant position of law on the use of circumstantial evidence

to prove demand of illegal gratification.

27. A Constitution Bench of this Court in the case of Neeraj

Dutta v. State(Government of NCT of Delhi),

1 was called upon to

answer a reference on the question as to whether the

circumstantial evidence can be relied upon to prove the demand of

illegal gratification and whether in the absence of evidence of the

complainant direct/primary, oral or documentary, would it be

permissible to draw an inferential deduction of culpability/guilt of

a public servant under Sections 7 and 13(1)(d) read with Section

13(2) of the Act based on other evidence adduced by the

1

(2023) 4 SCC 731

16

prosecution. This Constitution Bench traversed the entire history

of the judicial pronouncements on the issue and held as below: -

“88. What emerges from the aforesaid discussion is

summarised as under:

88.1. (a) Proof of demand and acceptance of illegal

gratification by a public servant as a fact in issue by

the prosecution is a sine qua non in order to establish

the guilt of the accused public servant under Sections

7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of the

accused, the prosecution has to first prove the

demand of illegal gratification and the subsequent

acceptance as a matter of fact. This fact in issue can

be proved either by direct evidence which can be in

the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof

of demand and acceptance of illegal gratification can

also be proved by circumstantial evidence in the

absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely,

the demand and acceptance of illegal gratification by

the public servant, the following aspects have to be

borne in mind:

(i) if there is an offer to pay by the bribe-

giver without there being any demand from

the public servant and the latter simply

accepts the offer and receives the illegal

gratification, it is a case of acceptance as

per Section 7 of the Act. In such a case,

there need not be a prior demand by the

public servant.

(ii) On the other hand, if the public servant

makes a demand and the bribe-giver

accepts the demand and tenders the

demanded gratification which in turn is

received by the public servant, it is a case of

obtainment. In the case of obtainment, the

prior demand for illegal gratification

emanates from the public servant. This is

an offence under Sections 13(1)(d)(i) and (ii)

of the Act.

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(iii) In both cases of (i) and (ii) above, the

offer by the bribe-giver and the demand by

the public servant respectively have to be

proved by the prosecution as a fact in issue.

In other words, mere acceptance or receipt

of an illegal gratification without anything

more would not make it an offence under

Section 7 or Sections 13(1)(d)(i) and (ii),

respectively of the Act. Therefore, under

Section 7 of the Act, in order to bring home

the offence, there must be an offer which

emanates from the bribe-giver which is

accepted by the public servant which would

make it an offence. Similarly, a prior

demand by the public servant when

accepted by the bribe-giver and in turn

there is a payment made which is received

by the public servant, would be an offence

of obtainment under Sections 13(1)(d)(i) and

(ii) of the Act.

88.5. (e) The presumption of fact with regard to the

demand and acceptance or obtainment of an illegal

gratification may be made by a court of law by way of

an inference only when the foundational facts have

been proved by relevant oral and documentary

evidence and not in the absence thereof. On the basis

of the material on record, the court has the discretion

to raise a presumption of fact while considering

whether the fact of demand has been proved by the

prosecution or not. Of course, a presumption of fact

is subject to rebuttal by the accused and in the

absence of rebuttal presumption stands.

88.6. (f) In the event the complainant turns “hostile”,

or has died or is unavailable to let in his evidence

during trial, demand of illegal gratification can be

proved by letting in the evidence of any other witness

who can again let in evidence, either orally or by

documentary evidence or the prosecution can prove

the case by circumstantial evidence. The trial does

not abate nor does it result in an order of acquittal of

the accused public servant.

88.7. (g) Insofar as Section 7 of the 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 said Section. The said

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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. Section

20 does not apply to Sections 13(1)(d)(i) and (ii) of the

Act.

88.8. (h) We clarify that the presumption in law under

Section 20 of the Act is distinct from presumption of

fact referred to above in sub-para 88.5(e), above, as

the former is a mandatory presumption while the

latter is discretionary in nature.”

28. Thus, in addition to answering the primary issue raised in

the matter, the Constitution Bench also went on to hold that in

order to bring home the guilt of the accused, the prosecution has

to prove the demand of illegal gratification and the subsequent

acceptance, by either direct or circumstantial evidence.

29. Keeping in view the ratio of the above mentioned decision of

the Constitution Bench, we now proceed to discuss the evidence

available on record so as to find out whether the prosecution has

been able to prove beyond all manner of doubt the fact that the

appellant(AO1) demanded and accepted bribe from the

complainant(PW-1).

30. First and foremost, we may note that the first allegation of

demand as emanating from the prosecution case is reflected from

the complaint (Exhibit P-1) submitted by the complainant(PW-1) to

the DySP, ACB Department, Hyderabad Range on 22

nd January,

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2003, alleging inter alia that a fine of Rs.50,000/- had been

imposed on his saw mill by the flying squad led by the

appellant(AO1) in relation to the recovery of illegal and unlicensed

teakwood in the saw-mill. After a week of this event, the

appellant(AO1) and the Forest guard(AO2) again came to the saw-

mill and demanded a monthly amount(mamool) of Rs.5,000/- to

refrain from taking any further action on the saw-mill. Thus the

allegation of demand as emanating from the complaint(Exhibit P-

1) is common to both the appellant(AO1) as well as the co-

accused(AO2) who stands acquitted by the High Court . The

complaint(Exhibit P-1) was lodged on 22

nd January, 2003. The

DySP (PW-10) organized the pre-trap proceedings, on the next day

i.e. on 23

rd January 2003 without making any attempt to verify the

allegation of demand of bribe levelled against the appellant(AO1)

by the complainant(PW-1) in the complaint(Exhibit P-1).

31. It is the settled convention in such cases that the Trap Laying

Officer, makes efforts to verify the factum of demand of bribe by

the public servant before initiating the trap proceedings. The

factum of demand of bribe can also be verified by recording the

telephonic conversation between the decoy and the suspect public

servant. Often, a recording device is secretly placed on the person

20

of the decoy to record the conversation which would transpire

during the course of acceptance of bribe by the public servant.

However, no such steps were taken by the DySP(PW-10), who

straight away organized the trap without making any effort

whatsoever to verify the factum of demand attributed to the

appellant(AO1) and AO2. It is relevant to mention here that PW-2

was the only witness associated by the DySP/TLO(PW-10) to

accompany the complainant(PW-1) for witnessing the transaction

of demand and acceptance of bribe. Evidently thus, PW-2 was kept

as a shadow witness in the case. During the course of trial, the

complainant(PW-1) and PW-2 both admitted that they were close

friends. The complainant(PW-1) and PW-2 being close friends, it

can safely be assumed that PW-2 was an interested witness.

Hence, it is also manifested that TLO/DySP(PW-10) did not make

any effort whatsoever to associate an independent person to act as

a shadow witness in the trap proceedings. It is recorded in the

memorandum of the pre-trap proceedings(Exhibit P-4) that it was

the DySP(PW-10) who summoned the PW-2 and asked him to act

as a shadow witness to oversee and overhear the transaction of

acceptance of illegal gratification. However, this fact is totally

contradicted by the version as set out in the evidence of the

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complainant(PW-1) and PW-2. Both categorically stated that it was

the complainant(PW-1) who asked PW-2 to accompany him during

the trap proceedings scheduled to take place on the morning of

23

rd January, 2003. In normal course, before proceeding to the

stage of trap, it was incumbent upon the DySP(PW-10) to get an

independent verification done of the alleged demand which fact

assumes prominence considering the circumstance that the

accompanying shadow witness, Ramesh Naidu(PW-2) is a close

friend of the complainant(PW-1) who himself bore a grudge against

the appellant(AO1) on account of the fine of Rs. 50,000/- imposed

on the saw-mill.

32. Now, we shall proceed to discuss the evidence of the material

prosecution witnesses.

33. The complainant(PW-1), stated in examination-in-chief that

he had taken a premises on lease from E. Ramachary in the name

of his wife and was running a saw-mill and timber depot

thereupon. On 6

th January, 2003, the Flying Squad of the Forest

Department comprising of Mir Mustafa, Forest Section

Officer(appellant herein)(AO1) and N. Hanumanthu, Forest

Guard(AO2) along with three other staff members came to his saw-

mill and conducted an inspection. They allegedly found teakwood

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stored in the saw-mill without any licence etc. and thus a case was

booked against the complainant(PW-1) who disputed that no

teakwood was found in his mill. After booking the case, the

appellant(AO1) and AO2 imposed a fine of Rs.50,000/- but the fine

receipt was issued in the name of an employee of the saw mill

named M. Ashok. After 7 or 10 days, AO1 and AO2 again came to

his saw-mill and demanded a monthly payment(mamool) of

Rs.5,000/- threatening that if the amount was not paid, they

would book repeated cases against him and dismantle his

business. On 21st February, 2003, AO1 and AO2 rang up the

complainant(PW-1) and demanded a bribe of Rs.5,000/-. AO2 also

frequently called the complainant(PW-1) over mobile and harassed

him in relation to the demand of Rs.5,000/-. Being perturbed by

these persistent demands, the complainant(PW-1) went to the ACB

Office on 22

nd January, 2003 and submitted a complaint(Exhibit

P-1) to the DySP(PW-10). The complainant(PW-1) was instructed

by the DySP(PW-10) to come to the ACB office on 23

rd January,

2003 along with the bribe amount of Rs.5,000/- which he intended

to pay for getting the appellant(AO1) and AO2 trapped. On the

same day, i.e. on 22

nd January, 2003 in the evening, the

complainant(PW-1) informed his friend Ramesh Naidu(PW-2)

23

about lodging of the complaint and requested him to accompany

him to the ACB office on the next day. The complainant(PW-1)

alleged that in the morning of 23

rd March, 2003, he received

another phone call from the appellant(AO1) and AO2 and he was

directed to come to the Quality-Inn Residency Hotel, Nampally

along with the bribe amount of Rs.5,000/-. The complainant(PW-

1) agreed and thereafter, he proceeded to the ACB office where PW-

2 was already waiting for him. The DySP(PW-10), his staff along

with mediators assembled in the ACB office. The DySP(PW-10)

introduced the complainant(PW-1) to the mediators; pre-trap

proceedings were undertaken; the mediators verified the currency

notes presented by the complainant(PW-1) and noted the

denomination and the serial numbers thereof in the pre-trap

panchnama(Exhibit P-4). A white powder was applied to the

currency notes. The DySP(PW-10) then requested PW-2 to act as

an accompanying witness(shadow witness). He told the

complainant(PW-1) and PW-2 to proceed to the Hotel Quality-Inn

for paying the bribe amount to the appellant(AO1) and AO2 on

their further demand and even otherwise. PW-2 was instructed to

watch the sequence of events which would transpire between the

complainant(PW-1) and the two accused(AO1 and AO2) and after

24

transfer of the bribe amount, to give the pre-arranged signal by

wiping his hand with the handkerchief. The procedure of use of

phenolphthalein powder was demonstrated in presence of the

complainant(PW-1). After that, the complainant(PW-1) and PW-2

proceeded to the Hotel Quality-Inn and the DySP(PW-10) and other

trap party members followed them from a distance . The

complainant(PW-1) and PW-2 reached the Hotel Quality-Inn at

about 10:30 am. The complainant(PW-1) parked his vehicle in the

cellar of the hotel and then he, along with PW-2 went into the coffee

shop and occupied a table. The mediators and Inspector, N.

Chandrashekar(PW-11) also came into the shop and occupied a

nearby table. The DySP(PW-10) and other staff members kept vigil

at the entry gate of the coffee shop. While they were waiting, the

appellant(AO1) came to the complainant’s table and occupied the

chair opposite to the one on which the complainant(PW-1) and PW-

2 were sitting. The appellant(AO1) enquired whether he had

brought the demanded amount; to which the complainant(PW-1)

answered in affirmative. While the complainant(PW-1) was about

to pass on the tainted currency notes to the appellant(AO1), he

showed reluctance and suggested that the amount should not be

given in the hotel and directed the complainant(PW-1) to proceed

25

to the cellar. Accordingly, the complainant(PW-1), PW-2 and the

appellant(AO1) proceeded to the cellar and reached near the

generator room. There, the appellant(AO1) opened the zip of his

rexine bag and asked the complainant(PW-1) to put the money in

that bag. In conformance, the complainant(PW-1) took the tainted

currency notes from his left side shirt pocket and placed the same

in the bag of the appellant(AO1) wherein, some book and papers

were lying. The appellant(AO1) pushed down the currency notes

with his right hand, handed some papers to the complainant(PW-

1) and closed the zip of the bag. The appellant(AO1) asked the

complainant(PW-1) to tear the said papers, who complied and torn

the papers. In the meanwhile, PW-2 left them and proceeded

outside. In a short while, the DySP(PW-10) and the trap party

rushed down into the cellar and disclosed their identity to

AO1(appellant). The DySP(PW-10), then asked the complaint(PW-

1) to narrate the intervening sequence of events. The version as

given out by the complainant(PW-1) was incorporated by the

mediators in the post-trap memo(Exhibit P-11). The version of PW-

2 was also noted down by the mediators in the same memo. The

panchnama was drawn in a lounge on the second floor of the hotel.

The trap party stayed at the hotel till 5:00 pm. The

26

complainant(PW-1) and PW-2 were called to the ACB office and

their statements were recorded. Later on, Section 164 CrPC

statements of both the complainant(PW-1) and PW-2 were also

recorded. In his statement, the complainant(PW-1) stated that the

torn papers, upon which the appellant(AO1) had taken his

signatures during the very first raid i.e. on 6

th January, 2003, were

handed over to the DySP(PW-10) at the time of drawing the post

trap memo.

34. In cross examination, the complainant(PW-1) stated that he

was not aware that one M. Ashok of Vanasthalipuram was running

the saw-mill and that the same M. Ashok turned out to be a

signatory to the seizure proceeding conducted on 6

th January,

2003 at the saw-mill as well as a panch witness in the trap

proceedings. A pertinent question was put to the complainant

regarding the calls made to him by AO 1(appellant), and he

admitted that the appellant(AO1) did not call him between 6

th

January, 2003 to 23

rd January, 2003 in relation to demand of

bribe. The complainant(PW-1) also admitted that he had been

warned by the appellant(AO1) that he would book a case against

his wife Manjula.

27

35. The pivotal extracts drawn above from the cross-examination

of the complainant(PW-1) clearly indicate that the tainted currency

notes were not given by the complainant(PW-1) to the

appellant(AO1)in his hands presumably, because he had shown

reluctance to accept the same. After the complainant(PW-1), his

companion PW-2, and the appellant(AO1)had taken coffee, the

appellant(AO1)started moving out towards the cellar followed by

the complainant(PW-1) and PW-2. While the complainant(PW-1)

was proceeding towards the cellar, he noticed that the rexine bag

of the appellant(AO1)had been left behind in the coffee shop and

thus, he picked it up and handed the same to the AO1(appellant).

Nevertheless, he denied the defence suggestion that he had

planted the tainted currency notes in the rexine bag left behind by

the accused.

36. PW-2 in examination-in-chief, virtually repeated what was

stated by the complainant(PW-1) in his deposition. However, in his

cross-examination, PW-2 feigned ignorance to the fact that the

complainant(PW-1) picked up the rexine bag from the coffee shop

and handed over the same to the appellant(AO1). He admitted

being a friend of the complainant(PW-1).

28

37. Kathi Srinivas Rao(PW-3) was one of the panch witness

associated in the trap proceedings. He stated in his examination-

in-chief that he, along with the other mediator and Inspector N.

Chandrashekar(PW-11) had occupied a table in the coffee shop

near the one on which the complainant(PW-1) and the

accompanying witness(PW-2) were sitting. At about 10:45 am, the

appellant(AO1)entered the coffee shop and started talking to the

complainant(PW-1). He also took out some papers from the rexine

bag and showed the same to the complainant(PW-1). At about

11:15 am, the complainant(PW-1) and the accompan ying

witness(PW-2) along with the appellant(AO1) left the coffee shop

and moved towards the cellar of the hotel. The witness(PW-3)

deposed about the recovery of the tainted currency notes from the

bag held by the appellant(AO1) in the cellar of the hotel.

38. What is significant to note from the evidence of the

witness(PW-3) is that he did not make a whisper that he observed

or overheard the appellant(AO1) demanding any bribe from the

complainant(PW-1) while they were all sitting in the coffee shop.

39. A. Balachithari(PW-4) being the Forest Beat Officer, stated

that acting on the direction of the AO1(appellant), the flying squad

proceeded towards a saw-mill at Vanasthalipuram on the

29

suspicion that teakwood was illegally stocked therein. A worker M.

Ashok was present in the mill. Upon finding illegal and unlicensed

teakwood in the saw-mill, the appellant(AO1) issued a money

receipt in the name of M. Ashok after receiving a sum of

Rs.50,000/- as compounding fee. A panchnama was also drawn

regarding these proceedings. In cross -examination, the

witness(PW-4) admitted that they found the teakwood in the saw-

mill which was owned by a lady who did not come to the spot when

the proceedings were undertaken. The name of the saw-mill was

Malikarjun saw-mill. It may be noted that the appellant(AO1) has

fervently contended that the second panch witness, M. Ashok was

actually the owner of the saw-mill and is the same person in whose

name the panchnama was prepared on 6

th January, 2003. It is the

contention of the appellant(AO1) that the entire trap proceedings

were orchestrated at the behest of the said M. Ashok.

40. G. Santosh Kumar(PW-5) being the Divisional Forest Officer,

Vigilance was examined to narrate the procedural aspects

pertaining to the duties of the Forest Section Officers etc. In cross-

examination, the witness(PW-5) admitted that he had not been

shown any records relating to the case. He feigned total ignorance

about the instant ACB case.

30

41. B. Arun Madhav(PW-6) being the Nodal officer of Idea Cellular

Limited proved the call detail records(CDR) of the cell phones held

by the appellant(AO1)and AO2. It is clearly borne out from his

evidence and the call detail records(Exhibit P-14 and P-15) that no

calls were exchanged between the appellant(AO1) and the

complainant(PW-1) after 17

th January, 2023. Thus, it becomes

crystal clear that the case setup by the complainant(PW-1) that the

appellant(AO1)regularly called him right up to the date of the filing

of the complaint(Exhibit P-1) and also gave him instructions over

mobile to come to the Hotel Quality-Inn for paying the bribe

(mamool) is nothing but a sheer piece of concoction. The call detail

records(CDR) completely demolish the case setup by the

complainant(PW-1) in this regard.

42. M.A. Waheeda(PW-9) being the Divisional Forest Officer,

Kothagudam was examined by the prosecution to narrate about

the procedure prevailing in the forest department. He stated that

on 6

th January, 2003, the appellant(AO1) had booked a case at a

saw-mill in Vanasthalipuram and collected a sum of Rs. 50,000/-

towards the fine. He deposited this amount with the department.

43. It is thus clear that once the appellant(AO1) had collected the

compounding fees and deposited the same in the department and

31

hence, there remained no rhyme or reason for him to have handed

over the very same set of seizure documents to the

complainant(PW-1) at the time of payment of bribe. The

compounding fee already having been entered in the records of the

department, the destruction of the memoranda etc. would not be

of any help to the complainant(PW-1).

44. G. Ramachander(PW-10) being the DySP, ACB registered the

FIR and conducted the trap proceedings. Upon perusal of his

examination-in-chief, it transpires that the officer never instructed

the accompanying witness(PW -2) to come with the

complainant(PW-1) to the ACB office on 23

rd January, 2003.

During the pre-trap proceedings, the two mediators were called

who were introduced to the complainant(PW-1) and vice versa.

DySP(PW-10) stated that it is only after the demonstration of the

phenolphthalein powder had been made in presence of all

witnesses, that he had called PW-2 who is acquainted with the

complainant(PW-1), asking him to act as a shadow witness. PW-2

agreed to accompany the complainant(PW-1) and oversee the

transaction exchange of bribe. This version is belied when we

peruse the deposition of the complainant(PW-1) and PW-2 who

categorically stated that it was the complainant(PW-1) who asked

32

PW-2 on 22

nd January, 2003 to accompany him to the ACB office.

DySP(PW-10) also narrated about the sequence of events leading

to the recovery of the trap money from the rexine bag being held

by the AO1(appellant). In cross-examination, DySP(PW-10)

admitted that he did not make any enquiry whether the

complainant(PW-1) was having any license to run saw-mill or the

timber depot under the name of Malikarjun saw-mill. He simply

accepted the version of the complainant(PW-1) that he had taken

the saw-mill on lease from one E. Ramachary. However, neither

any enquiry was made from E. Ramachary nor did the DySP(PW-

10) visit the saw-mill before registering the case on the ipse dixit of

the complainant(PW-1). He did not ask the complainant(PW-1) to

produce the attendance register of the workers employed in the

saw-mill. He also did not make any enquiry about the rent receipts

issued by E. Ramachary. Smt. Manjula, wife of the

complainant(PW-1) was alleged to be the lease holder of the saw-

mill. However, DySP(PW-10) neither enquired about the financial

status nor about the capability of complainant(PW-1) to pay the

compounding fee of Rs.50,000/- under the memo(Exhibit P-2).

PW-10 also admittedly did not make any effort to verify the

allegation made by the complainant(PW-1) in the

33

complaint(Exhibit P-1) that the appellant(AO1) was demanding

mamool(bribe) from him. DySP(PW-10) explained that he got

verification done through one Inspector and came to know that the

appellant(AO1) was in a habit of demanding mamools(bribe).

However, he could not recall the name of the said Inspector. He

feigned ignorance having prior knowledge about the

complainant(PW-1) and PW-2 being close friends. He admitted that

there was no mention in the complaint(Exhibit P-1) as to the place

or time where the bribe amount was to be handed over to the

appellant(AO1). He also denied having seen the complainant(PW-

1) picking up the rexine bag from the table and handing it over to

the appellant(AO1). He rather stated that he continuously saw the

appellant(AO1) holding the rexine bag. DySP(PW-10) admitted that

the fact that “the complainant(PW-1) had asked him to check the

rexine bag wherein, the bribe amount was kept at the instructions

of AO1” was not recorded in memorandum(Exhibit P-11). A

pertinent suggestion was given to DySP(PW-10) that the

appellant(AO1) stated at the time of the trap that he had forgotten

his rexine bag in the coffee shop and that PW-1 had planted the

currency notes therein which the DySP(PW-10) denied.

34

45. N. Chandrasekhar(PW-11) deposed that he was posted as

Inspector, ACB from December, 2002 to March, 2006. He assisted

the DySP(PW-10) in pre and post-trap proceedings conducted on

23

rd January, 2003. He stated that the investigation of the case

was entrusted to him wherein, he examined the witnesses

including one M. Ashok. He admitted that M. Ashok was one of

the workers employed in the saw-mill of the complainant(PW-1).

He verified the panchama(Exhibit P-3) wherein, the name of M.

Ashok was mentioned as a panch witness. He was questioned with

reference to forest offence report which was prepared during the

inspection of the saw-mill on 6

th January, 2003, and admitted that

M. Ashok who signed these documents was the same person who

stood as a panch in the trap proceedings. The receipt(Exhibit P-2)

did not contain the name of Malikarjun saw-mill and rather it

reflected that the sum of Rs.50,000/- was received from M. Ashok.

46. What is most engrossing and significant to note from the

evidence of N. Chandrashekar(PW-11) is that he did not utter a

single word that he, along with the panch witnesses had occupied

a table nearby the one on which the complainant(PW-1) and the

appellant(AO1) were sitting inside the coffee shop of Hotel Quality-

Inn. Evidently, the persons who were assigned the task to overhear

35

the conversation between the appellant(AO1) and the

complainant(PW-1) would be the most important witnesses in the

case. The deposition of N. Chandrashekar(PW-11) on the above

aspect contradicts to what was noted in the post -trap

proceedings(Exhibit P-11) and the deposition made by panch

witness. Kathi Srinivas Rao(PW-3) who categorically stated that he

along mediators and other panch witness who would be none other

than M. Ashok, went to Coffee Shop of Hotel Quality-Inn and

occupied a table near the one on which the complainant(PW1) and

the appellant(AO1) were sitting.

47. We may note that in so far as the allegation of demand of

bribe is concerned, the complainant(PW-1), alleged in the

complaint(Exhibit P-1) that a week after 6

th January, 2003, the

appellant(AO1) and AO2 both came to his mill and pressurized him

that he would have to pay a monthly bribe(mamool) of Rs.5,000/-

otherwise, they would file cases on him and his business would be

ruined. As per the evidence of A Balachithan(PW-4) and the

receipt(Exhibit P-2), the case for illegal possession of teakwood

wherein, a sum of Rs.50,000/ - was charged by way of

compounding fee was not registered against the complainant(PW-

1). It is an admitted position that M. Ashok S/o Abbaiah paid the

36

said amount and the receipt(Exhibit P-2) bears his name and

signature. The very same M. Ashok was also associated as a panch

witness in the trap proceedings which cannot be by a mere chance

or coincidence. The association of M. Ashok as a panch witness in

the trap proceedings in the backdrop of the fact that the

appellant(AO1) had imposed penalty of Rs.50,000/- on the same

person is very significant and gives rise to a strong suspicion that

M. Ashok might have been instrumental in orchestrating the trap

proceedings. What lends assurance to this conclusion is that the

DySP(PW-10) admittedly made no investigation whatsoever

regarding the ownership or licence of the saw-mill where the

incident dated 6

th January, 2003 took place.

48. It is absolutely unnatural that the DySP(PW-10) would have

blindly accepted the version of the complainant(PW-1) that the

appellant(AO1) had made a search on his licenced premises and

imposed a fine of Rs.50,000/- on account of the recovery of

teakwood illegally stored in the said mill. Since M. Ashok paid the

compounding fee of Rs.50,000/- and the cash receipt(Exhibit P-2)

was also issued in his name, any prudent person would presume

that it was M. Ashok who was operating the saw -mill. The

complainant(PW-1) consciously tried to project that M. Ashok was

37

merely a labourer in his mill. However, his version is falsified in

face of the receipt(Exhibit P-2) which portrays that M. Ashok had

paid the compounding fee which was a very heavy amount to the

tune of Rs.50,000/-. If the recovery of teakwood has been effected

from the mill being operated by the complainant(PW-1) then, there

was no reason as to why compounding fees would be charged from

M. Ashok. In view of these facts, there was no justification for the

DySP(PW-10) to have straightaway register the FIR on the mere

ipse dixit of the complainant(PW-1) and to have planned the trap

proceedings without the minimum endeavour to verify the

background facts leading to the alleged demand of bribe. A prudent

and unbiased police officer would be persuaded to make at least a

basic enquiry into these facts rather than following the dictat of

the complainant(PW-1). It may be highlighted that the prosecution

very conveniently chose not to examine the said M. Ashok S/o

Abbaiah as a witness in the case.

49. Admittedly, as per the complaint(Exhibit P-1), the

appellant(AO1) as well as the forest guard N. Hanumanthu(AO2)

both demanded the bribe from the complainant(PW -1). The

complainant(PW-1) in his evidence, stated that the appellant(AO1)

and AO2 threatened him frequently by making mobile calls and

38

pressurised him to pay up the mamool amount of Rs.5,000/- or to

face adverse consequences. However, as discussed above, this

allegation of the complainant(PW-1) is belied by the call detail

records and the evidence of B. Arun Madhav(PW-6).

50. Since the receipt of Rs.50,000/- had been issued in the name

of M. Ashok, there could not have been any rhyme or reason for

DySP(PW-10) to have accepted the bald version of the

complainant(PW-1) that the raid had been made at a premises

licenced in the name of his wife. The documents prepared on 6

th

January, 2003 would definitely be sufficient to put DySP(PW-10)

on guard. Thus, there was neither any reason for the

appellant(AO1) to have demanded bribe from the complainant(PW-

1) nor any justification for him to cave in to such demand.

51. The complainant(PW-1) alleged that after he lodged the

complaint(Exhibit P-1) to the DySP(PW-10) on 22

nd January, 2003,

he was called by the appellant(AO1) and AO2 and was directed to

come to the Hotel Quality-Inn with the proposed bribe amount of

Rs.5,000/-. Acting on his own wisdom, the complainant(PW-1)

asked his friend PW-2 to accompany him to the ACB office. The

complainant(PW-1) further alleged that when he and Ramesh

Naidu(PW-2) were about to proceed to ACB office, he received

39

another phone call from the appellant(AO1) and AO2 in the

morning of 23

rd January, 2003 and who instructed him to reach

Hotel Quality-Inn. This fact, however, does not find place in the

complaint(Exhibit P-1) and is thus a very significant omission.

When the pre-trap panchnama(Exhibit P-4) was drawn, the

complainant(PW-1) modified his version and alleged that it was

AO2, who telephoned him in the morning and asked him to come

to the Hotel Quality-Inn with the bribe amount. This apparent

modulation by the complainant(PW-1) regarding the accused who

had made the demand again throws a doubt on his conduct and

credibility. The call detail records proved by PW-6 again decimates

the version of the complainant(PW-1) because they clearly

established that no call was made from the mobile number of the

appellant(AO1) to the mobile number of the complainant(PW-1)

after 17

th January, 2003. As against the noting in the pre-trap

panchnama(Exhibit P-4), the complainant(PW-1), during his sworn

testimony, deposed that the phone call was made on 21

st March,

2003 by both the appellant(AO1) and AO2. The complainant(PW-

1) also alleged that after the pre-trap proceedings, the DySP(PW-

10) called Ramesh Naidu(PW-2) and instructed him to act as a

shadow witness. However , the fact remains that Ramesh

40

Naidu(PW-2) had already been asked by the complainant(PW-1) to

accompany him in the trap proceedings. The complainant(PW-1)

further alleged that a little while after he and Ramesh Naidu(PW-

2) had occupied one table in the said coffee shop, the mediators

and Inspector N. Chandrasekhar(PW-11) also came to the coffee

shop and occupied a nearby table. The appellant(AO1) entered the

coffee shop after some time and took the chair opposite to the ones

wherein the complainant(PW-1) and the shadow witness were

sitting. The appellant(AO1) asked the complainant(PW-1) whether

he had brought the bribe amount of Rs.5,000/- to which the

complainant(PW-1) replied in affirmative. When the

complainant(PW-1) was about to handover the tainted currency

notes, the appellant(AO1) hesitated and said that the amount

should not be given in the coffee shop. The complainant(PW-1) was

directed by the appellant(AO1) to proceed to the cellar of the hotel

and accordingly, both he and PW-2 proceeded to the cellar and

reached the generator room. There, the appellant(AO1) opened the

zip of his rexine bag and instructed the complainant(PW-1) to place

the bribe money inside the same. The complainant(PW-1) complied

and placed the tainted currency notes in the rexine bag of the

appellant(AO1). The appellant(AO1) then handed him the papers

41

which were prepared during the inspection of the saw-mill by the

Flying Squad. This version of the complaint was corroborated only

by Ramesh Naidu(PW -2). However, the version of the

complainant(PW-1) and PW-2 that the appellant(AO1) while sitting

inside the coffee shop, initially demanded the bribe and then

refused to accept the same does not find corroboration from the

evidence of K. Srinivas Rao(PW-3) and the Inspector(PW-11). If at

all, the complainant(PW-1) and the appellant(AO1) were sitting on

the table adjoining the one on which the panch witnesses and the

Inspector, N. Chandrasekhar(PW-11) were sitting then, these

persons would not have missed out hearing the appellant(AO1)

demanding the bribe from the complainant (PW-1). In total

diversion to the version of the complainant(PW-1) and PW-2, the

panch witness(PW-3) and the Inspector(PW-11) did not utter a

word in their testimonies, that they both went to the coffee shop

and occupied a table adjacent to the table where the

complainant(PW-1), PW-2 and the appellant(AO1) were sitting.

This can be supported by post-trap panchnama(Exhibit P-11),

which also doesn’t elucidate on the fact that K. Sriniwas Rao(PW-

3) and Inspector(PW-11) heard the conversation of the

complainant(PW-1) and the appellant(AO1). Thus, it can be

42

presumed and put the Court on guard that the testimonies of PW-

3 and PW-11 and the post-trap panchnama(Exhibit P-11) distorted

the facts.

52. Thus, there is a grave suspicion on the story as put forth by

the prosecution that the accused, the appellant(AO1) demanded

the bribe money from the complainant(PW-1) while in the coffee

shop of Hotel Quality-Inn.

53. In view of the above analysis and elaboration of evidence, we

have no hesitation in holding that the prosecution miserably failed

to prove the factum of demand of bribe against the appellant(AO1)

by reliable direct or circumstantial evidence. The allegation

regarding acceptance of bribe by the appellant(AO1) is primarily

based on the evidence of the complainant(PW-1) and PW-2 and the

DySP(PW-10). From the extracted portion of the deposition of the

complainant(PW-1) supra, it is comprehensible that he admitted

that the appellant(AO1), forgot his rexine bag in the coffee shop

and that the complainant(PW-1) picked up the same and handed

it over to the appellant(AO1). Thus, unquestionably, the

complainant(PW-1) had the opportunity to plant the tainted

currency notes into the bag being carried by the appellant(AO1).

43

54. As we have observed above that the entire case seems to have

been planned at the behest of M. Ashok, it is clear that the

complainant(PW-1) was simply used as a tool to get the

appellant(AO1) trapped on made up allegations. The High Court

while discussing the case, brushed aside the said part of the

evidence of the complainant(PW-1) by observing that the same was

an afterthought. However, the fact remains that these vital facts

were elicited during the cross-examination of the complainant(PW-

1) and hence, the benefit thereof would have to be given to the

appellant(AO1) more particularly as the prosecution did not make

any effort to clarify this anomaly by way of re-examination. If at

all, the prosecution felt that the captioned admission extracted

above as appearing in the cross -examination of the

complainant(PW-1) was a material deviation from the case set up

by the prosecution, then, the public prosecutor was under an

obligation to re-examine the witness to remove the anomaly.

Having failed to do so, the prosecution cannot be permitted to cry

foul that the decoy complainant(PW-1) modulated his testimony in

the cross-examination so as to favour the accused. It is admitted

that the DySP(PW-10) and the other members of the trap party

were standing outside the coffee shop and thus, they could not

44

have seen the sequence of events wherein, the complainant(PW-1)

picked up the bag of the AO1(appellant). PW-2, of course denied

this suggestion, but we cannot be oblivious to the fact that the star

witness of the prosecution, namely, the complainant(PW-1) himself

made a candid admission to the suggestion given by the defence in

cross-examination, that he got unhindered access to the bag of the

appellant(AO1) and that this fact remained contraversed by the

prosecution. In addition to the above, this Court has to remain

conscious of the fact that the prosecution made no effort

whatsoever to get the wash taken from the hands of the

appellant(AO1) and the rexine bag examined through the FSL.

Hence, there is no satisfactory evidence on record to establish that

the appellant(AO1) had actually handled the tainted currency

notes as claimed by the complainant(PW-1).

55. After a threadbare analysis and evaluation of the evidence

available on record, we feel that the prosecution case is full of

embellishments contradicting and doubting and thus, it would not

be safe to convict the appellant(AO1) for having demanded and

accepted the bribe money from the complainant(PW-1). At the cost

of repetition, we may state that the manner in which M. Ashok S/o

Abbaiah was associated as a panch witness in the trap

45

proceedings, creates a grave doubt that the entire case was

orchestrated against the appellant(AO1) at the instance of the said

M. Ashok.

56. In wake of the discussion made hereinabove, we are of the

view that the prosecution has failed to bring home the charges

against the appellant(AO1) by leading evidence which can be

termed to be of unimpeachable character. The AO1(appellant),

therefore, deserves to be acquitted of the charges.

57. Resultantly, the impugned judgments dated 2

nd August, 2022

and 5

th August, 2008 are hereby quashed and set aside.

58. The appellant(AO1) is acquitted of the charges. He is on bail

and need not surrender. His bail bonds are discharged.

59. The appeal is allowed in these terms.

60. Pending application(s), if any, shall stand disposed of.

………………….……….J.

(B.R. GAVAI)

………………………….J.

(SANDEEP MEHTA)

New Delhi;

July 10, 2024