Sri K. Surya Rao

1 CC 14/2013, ACB COURT/VSP

IN THE COURT OF SPECIAL JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

Present :- Sri K.Surya Rao Spl. Judge for SPE and ACB Cases, Cum-III Addl. District Judge, Visakhapatnam

Wednesday, this the 27th day of July, 2016

C.C.14/2013

(Cr.No.18/RCT-VSP/2011) Between:

State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam. ….Complainant And:

1. Sri Nakirikanti Mohana Rao, S/o late Veerabhadram, 57 years, Regional Fire Officer, GVMC, Visakhapatnam.

2. Sri Budumuru Ammi Naidu, S/o late Jagannadham Naidu, 56 years, District Fire Officer, GVMC, Visakhapatnam.

...Accused Officers 1 and 2

This case coming before me on 08.07.2016, 12.7.2016, 19.7.2016 and 21.7.2016 for final hearing in the presence of Ld.Special Public Prosecutor (Sri K.Ramakrishna) for Complainant-State and Sri M.S.Prasad and Smt.M.Nagasudha, Ld.Advocates for Accused Officer No.1 and Sri K.V.Ramamurthy and Sri Y.V.Subba Rao, Ld.Advocates for Accused Officer No.2 and having stood over the matter for consideration till this day, this Court doth the following :

JUDGMENT

1. State represented by Inspector of Police, Anti-Corruption Bureau,

Visakhapatnam filed charge sheet against Accused Officers 1 and 2 in Crime NO.18/RCT-

VSP/2011 for the offence punishable under sections 7, and 13(2) read with Section 13(1) of Prevention of Corruption Act, 1988 (hereinafter referred as 'PC Act').

2.The factual matrix of the case of prosecution in nutshell is that Accused

Officer No.1 (hereinafter referred as “AO1”) worked as Regional Fire Officer, (hereinafter referred as “RFO”) and Accused Officer No.2 (hereinafter referred as “AO2”) worked as

District Fire Officer (hereinafter referred as “DFO”), Fire Prevention Wing, GVMC,

Visakhapatnam and that by virtue of post held by them, they fall under the category of “public servant” as defined u/s.2(c) of Prevention of Corruption Act, 1988 (Central Act 49 of 1988) and that defacto complainant namely Mattaparthi Ramachandra Rao is an advocate and his wife namely Smt.M.Jayasree is doing Fire Crackers (Wholesale & Retail) business, under the name and style of “M/s.Ravi Tej Traders” for the last 17 years at

Krishna College Road, Maddilapalem, Visakhapatnam and that defacto complainant is 2 CC 14/2013, ACB COURT/VSP looking after all the business transactions and that on 5.8.2011, AO2 and one Sarath

Babu, Station Fire Officer (SFO) of the Fire Prevention Wing, GVMC came to his shop and inspected it and that they have obtained a self appraisal report and got it signed by

Smt.Jayasree, wife of defacto complainant and that AO2 informed defacto complainant that they have not initiated any action on the notice issued in the last year and they will not keep quiet this time and so saying demanded him to pay Rs.20,000/- as a bribe to allow them to run the business and that defacto complainant questioned him and that

AO2 asked him to visit their office to discuss with AO1 and left the premises and that on 19.8.2011, defacto complainant went to the Fire Prevention Wing situated in GVMC main office building, met AO1 and discussed about the matter informed to him and that on that AO1 informed him that there are 8 shops in the entire Visakhapatnam and asked him to collect Rs.20,000/- from each shop as a bribe and give to him, otherwise, he will issue notices to all the shops and seize the shops and informed AO1 to collect the bribe from them directly and that on that AO1 demanded defacto complainant to pay

Rs.20,000/- for his shop as a bribe to him and the same will be apportioned among them and that defacto complainant informed AO1 that he will inform later and returned and that on 5.9.2011, on receipt of message from AO1, defacto complainant went to the

RFO's office and met AO1 and that AO1 gave him a notice vide Rc.No.15724/2010/Fire

Prevention Wing, dt.5.9.2011 and warned him that he would not allow him to run the business, if the demanded bribe amount is not paid and that defacto complainant replied

AO1 that he is taking all required Fire Fighting Safety measures and requested him not to trouble him and that AO1 informed him that he earlier rejected his NOC for storehouse godown as he did not pay the demanded bribe of Rs.50,000/- and now also he will not allow him to carry the business, if the demanded bribe amount is not paid and that defacto complainant informed AO1 that he will meet him later and returned and that on the same day AO1 and AO2 called some of the wholesale Fire Crackers merchants in the city, convened a meeting and demanded them to pay the bribe, otherwise threatened to close their shops and that on 15.9.2011 defacto complainant again went to the GVMC office and met AO1 and that AO2 was also present there and that AO1 renewed demand of bribe amount of Rs.20,000/- or else he would not allow him to run the business and that AO2 also demanded him to pay bribe or else he will not allow him to carry the business and seize the shop and that defacto complainant requested them to 3 CC 14/2013, ACB COURT/VSP reduce the bribe amount and that then AO1 and AO2 asked him to bring bribe amount

before Saturday ie., on 17.9.2011 as they are leaving the city and that defacto

complainant is not willing to pay bribe amount and approached DSP, ACB,

Visakhapatnam on 16.9.2011 at 11.00 hours and lodged a written report against AO1 and AO2 and that after due verification, the said report is registered as a crime vide

Crime No.18/RCT-VSP/2011 for the offence u/s.7 of PC Act, 1988 on 17.9.2011 at 2.30 p.m., and thereafter, ACB officials laid trap in the presence of mediators on being produced proposed bribe amount by defacto complainant and got quoted with phenolphthalein powder and caught hold AO1 and AO2 red handed and tested positive for the hands of AO2 and recovered tainted amount of Rs.15,000/- and thereafter proceeded with further investigation and obtained sanction order from competent authority as required under section 19(1) of PC Act against AO2 and that no sanction order is required for prosecution of AO1 since he was retired from service on 31.03.2012 and then filed charge-sheet in the Court against AO1 and AO2 for the offence punishable u/ss.7 and 13(1) read with section 13(2) of PC Act, 1988 and hence the Charge.

3.After peruse the record, Court took cognizance for the offence u/ss.7 and 13(1)(d) read with section 13(2) of PC Act, 1988 against both the accused officers and numbered the case as CC 14/2013. After service of summons, AO1 and AO2 appeared through their respective Ld.advocates and received copies of documents u/s.207 of

Cr.P.C., on 7.1.2014. Later, AO1 and AO2 are examined u/s.239 of Cr.P.C., on 16.10.2015. They denied the case of prosecution. Heard both sides. Charges for the offence u/ss.7 and 13(1)(d) read with section 13(2) of PC Act 1988 against AO1 and

AO2, have been framed, read over and explained to them in Telugu. They pleaded not guilt and claimed to be tried. Hence the matter posted for trial.

4.During the course of trial, on behalf of prosecution, Pws.1 to 10 are examined. Ex.P1 to P39 are marked besides Mos.1 to 10. Ex.D1 is marked during cross- examination of Pw1. After closure of prosecution evidence, heard both sides on the questionnaire for examination u/s.313 of Cr.P.C., and then AO1 and AO2 are examined u/s.313 Cr.P.C., on 17.6.2016 enable them to explain on the incriminating material found against them in the evidence of prosecution witnesses. Separate statements by AO1 and

AO2 filed u/s.243(1) read with 313 (5) of Cr.P.C.,

5.No defence evidence is reported by both Accused. Written arguments of 4 CC 14/2013, ACB COURT/VSP prosecution and AO2 are filed. Heard oral arguments on both sides.

6.The points for determination in this case are;

1) Whether Accused Officers 1 and 2 were public servants at relevant point of time within the meaning of section 2(c) of Prevention of Corruption Act, 1988?

2) Whether the sanction order for prosecution of Accused Officer No.2 is in accordance with section 19(1) of PC Act and a valid one?

3) Whether prosecution has proved the charges for the offence punishable under section 7 of Prevention of Corruption Act, 1988 against AO1 and AO2 beyond all reasonable doubts?

4) Whether prosecution has established the ingredients to constitute the offence punishable under section 13(1)(d) punishable u/s.13(2) of Prevention of Corruption Act, 1988 against AO1 and AO2, beyond all reasonable doubts?

7.POINT NO.1: In so far as this point is concerned, Accused Officers 1 and 2 did not deny their respective posts at relevant point of time. Admittedly, AO1 was working as

RFO and AO2 was working as DFO, Fire Prevention Wing, GVMC, Visakhapatnam at relevant point of time and get salaries from Government treasury. Therefore, by virtue of their respective posts, they fall under the category of “public servant” as defined u/s.2(c) of PC Act, 1988.

8.POINT NO.2: In so far as sanction for prosecution as required u/s.19 of PC

Act, 1988 is concerned, prosecution filed Ex.P39 sanction order. Pw10, the then Section

Officer in Home (SC-B) Department, Secretariat, AP., Hyderabad. Ex.P39 G.O.Ms.No.198

Home (SC-B) Department, dt.20.8.2013 sanction order is marked through Pw10. PW10 deposes on oath in the Court that he was present as Section Officer in the Home

Department during the year 2013 at the time of processing of subject file and that on 7.10.2011, their section received preliminary report along with radio message, copies of

FIR, mediators report I and II and that later their section received draft final report along with model sanction order on 16.7.2013 from DG, ACB,AP, Hyderabad and that they received advise of vigilance commissioner on 2.8.2013 and then he placed the above material with office note before the then Special Chief Secretary to Government namely

Prabhakar D.Thamas who in turn perused the file and accord sanction order to prosecute

Budumuru Ammi Naidu, the then DFO, Fire Prevention Wing, GVMC, Visakhapatnam on 20.08.2013 for the offence punishable u/ss.7 and 13 (1)(a) and (d) of PC Act, 1988.

Pw10 further deposes that he can identify the signature of Prabhakar D.Thamas, the 5 CC 14/2013, ACB COURT/VSP then Special Chief Secretary to Government and he worked under him. He identified the signature on G.O.Ms.No.198 Home (SC.B) Department dt.20.8.2013, which is marked as

Ex.P39 in this case as that of Prabhar D.Thamas.

9.During cross-examination by Ld.Advocate for AO2, Pw10 denied the suggestion that Ex.P39 sanction order is invalid and that the issuing authority did not apply its mind.

Therefore, the defence of AO2 on Ex.P39 is that the said sanction order is not valid as the sanctioning authority did not apply its mind before accord sanction. Hence, Court has to consider whether prosecution proved that Ex.P39 sanction order is in accordance with section 19(1) of PC Act and a valid one. In other words, prosecution has to prove whether the competent authority applied its mind before accord sanction under Ex.P39 to prosecution AO2 for the offence punishable u/ss.7 and 13 (1)(d) read with section 13(2) of PC Act, 1988.

10.Application of mind by sanctioning authority before accord sanction is imperative State of Karnataka vs. Ameer Jan1 wherein it is held that, ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority.

11.In one more case in between P.Chandra Sekhar Reddy vs. State of A.P. rep by its Special Public Prosecutor, ACB, High Court of A.P., at Hyderabad 2it is held that, Court has to consider whether non application of mind by the sanctioning authority before accord sanction order leads to failure of justice in view of sub sections (3) and (4) of

Section 19 of the Act and also consider section 465 (2) of Cr.P.C.,

12.In the recent decision, the Hon'ble Apex Court on land in between Central

Bureau of Investigation vs. Ashok Kumar Aggarwal3 held that for valid sanction prosecution has to be establish and satisfy court that entire relevant facts had been placed before sanctioning authority and authority had applied its mind and granted sanction in accordance with law.

13.Before take up the evidence of Pw10 coupled with Ex.P39 to determine the point on hand, it is better to consider object and concept of the sanction mandate u/s.19(1) of PC Act, 1988 to prosecute a public servant for the offence under the provisions of PC Act, to adjudicate the point on hand just and properly. The object 1 [2008] 1 SCC (Cri) 130 2 [2009] 3 ALT (Cri) 210 3 [2015] 1 Supreme Court Cases (Cri) 344 6 CC 14/2013, ACB COURT/VSP underlying the said provision is to save the public servant from the harassment of frivolous or unsubstantiated allegations. This provision should not be an umbrella for protection of corrupt officers but a shield against reckless or malevolent harassment of official whose upright discharge of duties may provoke unpleasantness and hostility. The provision for sanction is like the keystone in the arch of enactment. Remove the keystone of sanction and the arch crumbles. So grant of proper sanction by competent authority is a sine qua non for taking cognizance of the offence. The question of granting sanction is procedural in nature and does not involve any principles of substantive law and, therefore, error or procedure would always be subjected to overriding principles of failure of justice. The combined reading of sub sections (3) and (4) of Section 19 of the Act makes it clear that section 19 of the Act has an overriding effect on the provisions of the Criminal Procedure Code. Sub sections (3) and (4) of

Section 19 are introduced to the old provision under section 6 of PC Act 1947 by way of amendment to the Act by introducing new Act i.e., PC Act 1988. The effect of sub- sections (3) and (4) of Section 19 of the Act is of considerable significance. In sub- section (3), the stress is on “failure of justice” and that to “in the opinion of the Court”.

In sub-section (4), the stress is on raising the plea to the appropriate time. Significantly, the “failure of justice” is retable to error, omission or irregularity in the sanction.

Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in “failure of justice” or has been occasioned thereby, Section 19(1) is a matter of procedure and does not go to the root of jurisdiction. The question of sanction involves two aspects i.e, one relating to alleged lack of jurisdiction and the other relating to prejudice. Since the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration.

7 CC 14/2013, ACB COURT/VSP

14. In fact for a sanction order no specific type, design, form or particular words have been prescribed. Therefore, in accordance with the common sense and the requirements of justice, all that the order of sanction must show all the relevant materials which were placed before the sanctioning authority and the said authority considered those materials and the order sanctioning the prosecution resulted therefrom and it should be clear from the order that the sanctioning authority considered the materials before it and after consideration of all the circumstances of the case sanctioned the prosecution. For the sanction to be valid it must be proved that the sanction was given in respect of the facts constituting offence charged. Therefore, a sanction to prosecute a particular person for an offence implies first a full knowledge of the facts upon which it is sought to prosecute him and secondly a deliberate decision of the sanctioning authority that he may be prosecuted. These two things are necessary to be proved before it can be said that a particular order amounts to sanction for prosecution.

The facts constituting the offence should appear on the face of the sanction and where the facts constituting the offence do not appear on the face of the order of sanction for prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority.

Therefore, act of giving sanction is not an act mechanical or stereotype act. Grant of sanction is an administrative function. It is the functions of the State Government and statutory in nature and not constitutional function. Therefore, it is not an idle formality. It is a statutory mandatory requirement.

15. In the case on hand it is not the defence of AO2 that the authority who issued Ex.P39, GO has no jurisdiction to accord sanction order against AO2. The only defence raised by AO2 in attacking Ex.P39 sanction order is that the sanction authority had not applied its mind before grant prosecution sanction against AO2.

16. Undoubtedly, the burden of proof that the requisite sanction had been obtained rests upon the prosecution such burden includes proof that the sanctioning authority had given the sanction and reference to the facts on which the proposed prosecution was to be based. It is settled law that prosecution has to prove the signature on the sanction order and then the said sanction order was accorded by sanctioning authority after apply its mind to the facts of the case (State of Rajasthan vs.

8 CC 14/2013, ACB COURT/VSP

Tarachand 4 ).

17. In order to discharge the burden lies on the prosecution, prosecution got examined the concerned Section Officer as PW10 and through him, the sanction order accorded against AO2 is marked as Ex.P39. What is deposed by Pw10 during his chief- examination on oath in the Court mentioned above. Nothing has been elicited by AO2 during cross-examination of Pw10 to discard the chief-examination of Pw10. Pw10 deposes that their section received preliminary report along with radio message, copies of FIR, mediators report I and II and later received draft final report along with model sanction order. He further deposes that their section received advise of Vigilance

Commissioner also. The said material was placed along with office note before the then

Special Chief Secretary to Government by name Prabhakar D.Thamas who in turn verified the record and accorded sanction. Consequently Ex.P39 G.O.Ms.No.198 is issued. The same is not squattered by AO2 during cross examination of PW10. On plain reading of contents of Ex.P39, sanction order, it is clear that it is a speaking order which contains full details of the case on hand against AO2 and further contains that after fully and carefully examining the material placed before them in respect of allegations and having regard to the facts and circumstances of the case, consider that the said

Budumuru Ammi Naidu, DFO, Fire Prevention Wing, GVMC, Visakhapatnam (ie., AO2) should be prosecuted in a Court of law for the aforesaid offences ie., offences punishable u/ss.7 and 13(2) read with section 13(1)(a) and (d) of PC Act, 1988. If the sanction order is a speaking order, then the matter ends there. Otherwise evidence should be adduced to prove that the sanctioning authority had perused the material before according sanction which may not be in a particular form CBI vs. Muthuraman5. In the case on hand, Ex.P39 sanction order is a speaking order. So, there ends the matter. Any how, prosecution got examined the concerned Section Officer as Pw10 and full opportunity is given to Accused officer No.2 to cross-examine him, but AO2 did not disturb the evidence of Pw10 whose evidence corroborated with Ex.P39. Therefore, it is sufficient to held the sanctioning authority applied its mind on the facts of the case and material placed before them before accord sanction to prosecute accused officer NO.2 in the Court of law for the offence punishable u/ss.7 and 13(1)(d) read with section 13(2) of PC Act, 1988.

4 AIR 1973 SC 2131=1972 Cr.L.J.1396 5 1996 Cr.L.J.3638 at page 3640 (AP) 9 CC 14/2013, ACB COURT/VSP

18.The then Special Chief Secretary to Government signed Ex.P39 Government order, by order and in the name of the Governor of Andhra Pradesh. Special Chief

Secretary to Government merely authenticated the said order of sanction, which was issued in the name of the Governor of State of AP and that the order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of Section 19 of

PC Act and that the order of sanction was authenticated and that said order of sanction was an executive action of a State having been issued in the name of the Governor and that was authenticated in the manner specified in the Rules of Executive Business and that the authenticity of the said order has not been questioned and that it was therefore, a public document within the meaning of Section 74 of the Evidence Act and that a public document can be proved in terms of Sections 76 to 78 of the Evidence Act and that a public document can be proved otherwise also,(State vs. K.Narasimhachary) 6.. So,

Ex.P39 is a public document.

19.According of sanction is an official act of the authority who accords sanction and the Court may presume the fact that judicial and official acts have been regularly performed in terms of clause (e) of Section 114 of the Evidence Act. The court must also presume until the contrary is established that such authority will act fairly and objectively and will accord sanction only where he is satisfied that the charges against the public servant requires to be enquired into by a Court.

20. A public document is admissible per se without former proof Shyamala alias

Kuladi vs. Sanjeeva Kumar and others 7. Ex.P39 sanction order was signed by the then

Special Chief Secretary to Government of the concerned department and thus under law, by virtue of section 56 and 57 (7) of Indian Evidence Act, the Court shall be take judicial notice of the accession to office, name, titles, functions, and signatures of the persons filing for the time being any public office. In fact the genuineness of the sanction order covered by Ex.P39 is not disputed by AO2 in the case on hand. The proportion of law in the decision between State vs. K.Narasimhachary (supra) is consequently applicable to the case on hand.

21. In view of evidence of Pw10, coupled with the contents of Ex.P39, this court held in clear terms above that prosecution not only by rely on presumption available 6 2006 Crl.L.J.518 7 2009 (5) SCC 542 10 CC 14/2013, ACB COURT/VSP under Indian Evidence Act regard public document which was not rebutted by AO2 but also by placed oral evidence established that Ex.P39 sanction order i.e., speaking order is generated after apply mind by sanctioning authority on facts of the case and material placed before it. Thereby prosecution discharged burden of proof lies on its shoulders and established that Ex.P39, sanction order to prosecute AO2 is in accordance with section 19(1) of PC Act and a valid one.

22. POINT NOs.3 & 4: It is a well settled law that prosecution has to prove the essential ingredients of the charges against accused officers punishable u/ss.7 and 13(1)(d) read with section 13(2) of PC Act beyond all reasonable doubts like any other criminal offence and that the Accused officers should be considered to be innocent till it is established otherwise by proper proof and demand and acceptance of bribe amount from defacto complainant for doing official act. The golden principle which runs through the web of administration of Justice in criminal cases considered by Hon'ble

Supreme Court of India in catena of decisions, is that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. Prevention of Corruption Act, 1988 is a special Act enacted to consolidate and amend the law relating to Prevention of Corruption and for matters connected there with. This Act is intended to be self contend enactment.

23.It is a trap case and charges are under Sections 7 and 13(1)(d) read with section 13(2) of PC Act. Before scrutinizing the merits of the case on hand in the light of rival arguments, first of all it is incumbent upon this Court to ruminate the ingredients that have to be established by the prosecution to prove the above two charges.

24.Remaining the duty of prosecution, the Hon'ble Apex Court in a recent decision in the case of B.Jayaraj vs. State of Andhra Pradesh 8 (Full Bench of Hon'ble

Apex Court) has observed thus:

“In so far as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of Hon'ble Apex Court, by way of illustration; 8 2014 (2) ALD (Crl.) 73 (SC)=2014(2) ALT (Crl.) 416 11 CC 14/2013, ACB COURT/VSP

1) C.M.Sharma vs. State of A.P.(2010) 15 SCC 1=AIR 2011 SC 608

2) C.M.Girish Babu vs.C.B.I. (2009) 3 SCC 779=AIR 2009 SC 2022

3) Banarsi Dass vs. State of Haryana AIR 2010 SC 1589

4) Bharat Kumar Ramniklal Shah vs. State of Gujarat-Criminal appeal No.302/98 decided on 31.1.2011 and

5) 2011(O) Supreme (Guj) 44”.

The Hon'ble Supreme Court of India in B.Jayaraju's case (supra) further observed thus:

“...Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive in so far as the offence Under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification”.

25.Thus, in the above decision, the Hon'ble Apex Court of India emphatically laid down that establishing the offences under Section 7 and 13(1)(d) of the Act, the prosecution shall place cogent evidence established the two vital ingredients ie., (i) demand of illegal gratification other than legal remuneration and (ii) voluntary acceptance.

26. In V.Venkata Subba Rao vs. State represented by Inspector of Police, A.P.,9 the Hon'ble Supreme Court of India has held thus:

“In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved”.

27.In the above case, it was emphatically laid down that without proof of demand, the question of raising presumption 20 of PC Act, 1988 would not arise.

The observation of Full Bench of Hon'ble Apex Court in B.Jayaraj's case (supra) is important for consideration such as:

“In so far as the presumption permissible to be drawn Under Section 20 of the Act is concerned, such presumption can only be in respect of the offence Under Section 7 and not offences Under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of 9 AP (3) 2007 Crl.L.J.7 12 CC 14/2013, ACB COURT/VSP demand”.

28.So in the latest Judgment, the Full Bench of Hon'ble Apex Court observed that, proof of acceptance of illegal gratification can only follow if there is proof of demand and only when these two ingredients are established, presumption under Section 20 of

PC Act would follow.

29.It is useful to excerpt section 20 of PC Act, it reads thus:

“Section 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 (i)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) x x x x (3) x x x x

30. In short if any public servants accept gratification other than the legal remuneration in respect of any official act is punishable u/s.7 of PC Act, 1988. Under section 20 of the Act, there is a presumption where public servant acceptance gratification other than legal remuneration wherein any trial of an offence punishable under Section 7 or for any other person, any gratification (other than legal remuneration), it shall be presumed, unless the contrary is proved, that he accepted the gratification.

31. Having regard to the above legal propositions, this case is to be decided.

The question that arises for consideration is, whether the accused officers 1 and 2 demanded and accepted bribe amount from defacto complainant who is examined as Pw1 for doing official act.

32. In this case demand was said to be made by accused officers on four occasions ie., on 5.8.2011, on 19.8.2011, 5.9.2011 and 15.9.2011. They demanded bribe 13 CC 14/2013, ACB COURT/VSP of Rs.20,000/- and later it was reduced to Rs.15,000/- from defacto complainant to do official favour not to initiate action against notice issued to Pw2 who is no other than the wife of Pw1. The contention of both the accused officers is two fold, that no official favour is pending with them by the date of trap ie., on 17.9.2011 and that they never demanded or accepted bribe amount. With regard to first contention, their submission is that absolutely there is no pending work of either Pw1 or Pw2 on the date of trap before accused officers and that a perusal of Ex.P2 served notice on Pw2 relating to business establishment of Pw2 M/s. Ravi Tej Traders clearly induce that it was issued on 5.9.2011 wherein Pw2 is directed to shift her premises located at Door No.53-17-26/3, Krishna

College Road, Maddilapalem, Visakhapatnam through the open area duly obtaining prior license from the licensing authority and ensure fire safety system at the new premises within 15 days from the date of receipt of notice, failing which, the shop will be seized without any further notice and necessary action will be taken against her as per rules.

The said notice was served on Pw1, who is no other than the husband of Pw2 for

M/s.Ravi Tej Traders on 5.9.2011 by accused officers. The case of the accused officers is that on calculating 15 days time from 5.9.2011 indicates that 19.9.2011 is the last date given to Pw2 to shift the premises to an open area by obtaining prior license from the licensing authority and that the trap had taken place on 17.9.2011, by which time the due date was not yet completed and accused officers are not in a position to take any action and that till 17.9.2011 Pw1 or Pw2 from the date of receiving of Ex.P2 did not initiate any steps to shift their premises to an open area and they never applied to the licensing authority seeking shifting of premises and that Pws.1 and 2 having failed to comply their part of duty and to run their illegal business targeted innocent public servants ie., Accused officers 1 and 2 and that Pws.1 and 2 ought to have performed their part of duty after service of Ex.P2 notice instead to create terror in public servants, falsely implicated both the accused officers and thus there is no pending work on the table of accused officers 1 and 2 as on 17.9.2011 and that if there is any pending work, that arose only after 19.9.2011.

33. Ld. Special Public Prosecutor for ACB argued that admittedly notices were served on crackers shop owners in Visakhapatnam city including Pw2 in the year 2010 but no action was initiated in pursuance of those notices and that no officer had taken action against any cracker shop owner except issue notices and that after issuing notices 14 CC 14/2013, ACB COURT/VSP under Ex.P2, P17, P20 and P36 to Pw2 and other cracker shop owners in Visakhapatnam city, no action was initiated in pursuance of the said notices and as such the very issuing of notices by accused officers itself indicates to extract bribe amount and that prosecution got examined Pw3, the then Station Fire Officer, Fire Prevention Wing, GVMC,

Visakhapatnam to prove the procedure adopted after issuing notice to the trader by giving time to comply with the points mentioned in the notice regarding fire safety measures and thereby established that official work pending on the table of accused officers 1 and 2 as on the date of trap.

34. As against rival arguments mentioned supra, if the evidence of Pws.1, 2, 4, 5 and 7 coupled with Ex.P2, P17, P20 and P36 is taken up for consideration, it is evident that prosecution got examined not only subject trader ie., Pw2 and her husband as Pw1 but also three more cracker shop owners as Pws.4, 5 and 7. Pws.4 and 5 did not support the case of prosecution and turned hostile for various reasons. But admitted that Pw4 received notice on 5.9.2011 by acknowledge his signature on its copy marked as ExP17 and that previously he received notices from Fire Officers but no action was taken against him in pursuance of those notices at any time. Similarly, Pw5, another fire cracker trader deposes that he received notice on 5.9.2011 on behalf of his father. Ex.P21 is copy of notice dt.5.9.2011 issued to his father contains his acknowledgement and that he is looking after business of his father. He further deposes that to his knowledge, no fire officer took action against his father in pursuance of notices served till now. Since Pw5 turned hostile, Ld. Special Public Prosecutor for ACB obtained permission from the Court and put leading questions to him and elicit that RFO called them to attend the office and that he along with other fire cracker merchants attended the office and that RFO and

DFO ie., AO1 and AO2 demanded them to pay bribe of Rs.20,000/- for each shop. But during cross-examination made by Ld.Counsel for AO1, Pw5 denied the demand of bribe made by accused officers. During cross-examination made by AO1, Pw5 admitted the suggestions that on 5.9.2011 they all went to fire service wing and notices were given to all and advised them to fix fire safety measures and that he received Ex.P21 notice and left the office.

35. Pw7-B.V.S.Appalaraju, another fire cracker trader, Visakhapatnam categorically deposes on oath that since 25 years in the name and style of “Bandaru

Satyanarayana and Sons” fire cracker business has been running by himself and his 15 CC 14/2013, ACB COURT/VSP father and that AO1 and AO2 together made inspection of their shop on 21.7.2011 and

Ex.P35 is photostat copy of self appraiser and inspection report dt.21.7.2011 which contains signature impression of his father and that on 5.9.2011 Accused officers 1 and 2 called his father to attend office and that Pw7 had attended the office on behalf of his shop and that other wholesale fire crackers business men were also attended the office on 5.9.2011 besides him and that AO1 and AO2 hold a meeting and demanded them to pay bribe of Rs.20,000/- by each of them, else they would not allow them to run their business. Pw7 further deposes that he received notice and made acknowledgement on the copy and that Ex.P36 notice dt.5.9.2011 contains his signature as acknowledgement of receipt and that no action was initiated in pursuance of Ex.P36 notice. During cross- examination, Pw7 deposes that AO1 and AO2 did not demand them to pay bribe amount on their inspection of their shop vide Ex.P.35 ie., on 21.7.2011. In fact it is not the case of prosecution that both the accused officers demanded either Pw7 or his father to pay bribe amount on 21.7.2011 on which date they made inspection of the shop of Pw7 and prepared self appraiser and inspection report ie., original of Ex.p35. Thereby nothing has been gained by accused officers 1 and 2 by got elicit from the mouth of Pw7 during cross-examination that both accused officers did not demand them to pay bribe amount on 21.7.2011.

36. Ld. Advocate for AO1 puts a suggestion during cross-examination of Pw7 and Pw7 admitted the said suggestion such as:- “It is true that I have not disclosed to anybody from 5.9.2011 onwards that AOs1 and 2 demanded me and others of Rs.20,000/- each on 5.9.2011. It is true for the first time I have stated the same before court today”. One more suggestion put by Ld.Advocate for AO1 during cross-examination of Pw7, which is denied by Pw7, such as:

“It is not true to say that AOs1 and 2 on 5.9.2011 at their office informed to me and others regard fire safety measures to be taken and served notices on us and that they did not demand bribe amount from us”.

37. In view of the evidence of Pw7 mentioned above, it is clear that accused officers admitted the fact of hold meeting in the office on 5.9.2011 to wholesale fire cracker traders of Visakhapatnam including Pw1 who attended on behalf of Pw2, Pw4,

Pw5 who attended on behalf of his father and Pw7 who also attended on behalf of his 16 CC 14/2013, ACB COURT/VSP father and service of notices on 5.9.2011 on them ie., Ex.P2, P17, P20 and P36 respectively. Pw1 supported his version and contents of his report marked as Ex.P4 in respect of demand of bribe of Rs.20,000/- from each trader by accused officers. Pw4 did not support his previous statement recorded u/s.161 of Cr.P.C., and turned hostile. Pw5 turned hostile. Special Public Prosecutor obtained permission from the Court to put leading questions. Pw5 admitted the suggestion given by Ld.Special Public Prosecutor for

ACB regard demand of bribe amount of Rs.20,000/- for each trader by AO1 and AO2.

But Pw5 denied the same during cross-examination made by Ld.Advocate for AO1.

Whereas, Pw7 another wholesale file cracker trader of Visakhapatnam city categorically admitted receipt of notice dt.5.9.2011 from accused officers as well demand of bribe amount of Rs.20,000/- from each trader made by accused officers in the office. Nothing has been elicited during cross-examination of Pw7 either by AO1 or AO2 to discard the chief-examination of Pw7. No doubt, Pw7 during cross-examination made by Ld.Advocate for AO1 admitted the suggestion that he has not disclosed to anybody from 5.9.2011 onwards that AO1 and AO2 demanded him and others of Rs.20,000/- each on 5.9.2011 and that he has stated the same before court today ie., on the date of his examination on 21.3.2016, but it does not mean that Pw7 did not disclose the same even to investigating officer while examination and recorded his statement u/s.161 of Cr.P.C., In fact it is not the case of AO1 or AO2 that Pw7 did not say before investigating officer while recording statement u/s.161 of Cr.P.C., that on 5.9.2011 in the office, RFO and DFO ie., AO1 and

AO2 did not demand them to pay bribe of Rs.20,000/- each, else, they will not allow them to run business. In case Pw7 did not say before investigating officer, accused officers 1 and 2 definitely elicit during cross-examination of Pw7 as well as cross- examination of investigating officer regard alleged omission. Any how, on perusal of statement of Pw7 in the light of contents of his statement u/s.161 of Cr.P.C., recorded by investigating officer, Pw7 supports during evidence on oath in the court regard contents of his previous statement u/s.161 of Cr.P.C, recorded by investigating officer. What is stated by witness on oath in the court carries weight for consideration, if it is supports his previous statement u/s.161 of Cr.P.C.,

38.Coming back to point on hand, it is evident and established by prosecution by got examined some fire cracker traders of Visakhapatnam that notices were served on cracker shop owners including Pws.2, 4, and 5 etc., in the year 2010 but no action was 17 CC 14/2013, ACB COURT/VSP initiated in pursuance of those notices by fire officials. Pws.1, 2, 4, 5 and 7 further stated that accused officers served notices on 5.9.2011 and subsequently no action is initiated even after lapse of stipulated period of 15 days mentioned in the notices. It is also not the case of accused officers that all the fire cracker traders of Visakhapatnam including

Pws.2, 4, 5 and 7 were complied with the points mentioned in the notice served on 5.9.2011 either within 15 days stipulated period or immediately after stipulated period.

Pw3 further stated that notices were served on the fire cracker shop owners including

Pw2 in the year 2010 but no action was initiated in pursuance of those notices and that all fire cracker shops are situated in Kurupam market which is a residential area, ever since more than 20 years and that during his tenure as SFO, GVMC, Visakhapatnam, no officer had taken action against any fire cracker shop owner except issue notice.

Thereby, the fact remains that fire officials served notices on fire cracker business shop owners of Visakhapatnam city but not initiated any action in pursuance of those notices.Pw3, the then Station Fire Officer, Fire Prevention Wing, GVMC, Visakhapatnam deposes on oath the procedure adopted after issuing notice to the trader by giving time to comply with the points mentioned in the notice regard fire safety measures and that in case the trader did not comply with the fire safety measures as pointed in the notice within stipulated time of 45 days, RFO again issued second notice to the said trader by give 15 days time and that in case the trader did not comply with the remarks, RFO used to intimate the same to the Director General of Fire Services, A.P., Hyderabad to initiate legal action against the trader. The said procedure deposed by Pw3 is not disputed by

AO1 and AO2.

39. On considering the said procedure coupled with the evidence of Pws.1, 4, 5 and 7 regard issuance of notices by fire officers previously and not initiated any action against them in pursuance of said notices and again in the year 2011, accused officers issued notices to the traders on 5.9.2011 and not initiated any action subsequently in pursuance of said notices forced, this Court to consider the arguments of Ld. Special

Public Prosecutor for ACB that the very issuing of notices itself indicates to extract amount from traders as bribe. It may be on assumption of prosecution. So, court has to consider by kept aside the said assumption, whether any official work is on the tables of accused officers 1 and 2 to do Pws.1 and 2 as on the date of trap. Admittedly, notice under Ex.P2 was issued by accused officers as it contains initial of AO2 and signature of 18 CC 14/2013, ACB COURT/VSP

AO1, to business concerned of Pw2, which is received by Pw1 ie., husband of Pw2 for

M/s. Ravi Tej Traders on 5.9.2011. No doubt, some points are mentioned in Ex.P2 Notice to comply with to maintain fire safety measures and 15 days time granted to comply with the same. On calculation of 15 days stipulated time mentioned in Ex.P2 from the date of service of notice ie., from 5.9.2011, it will be complied by 19.9.2011, whereas the trap laid on the accused officers is on 17.9.2011. Ld.Advocate for accused officers vehemently argued that if there is any pending work on the table of AO1 and AO2 that arose only after 19.9.2011 but absolutely there is no pending work as on 17.9.2011.

40. On considering the procedure deposed by Pw3, the then Station Fire Officer, it is evident that they have to issue notice to the traders to comply with any points to maintain fire safety measures by grant 45 days time in the first notice and that in case trader fails to comply with the same, RFO again issued notice to the same trader by giving 15 days time to comply with the points and that even in case, trader fails to comply with even after 15 days time, RFO used to intimate the same to Director General,

Fire Services, Hyderabad to initiate action against the said trader. Therefore, it does not mean that the official work on the table of RFO and DFO ie., accused officers 1 and 2 was not in existence during stipulated period of 45 days mentioned in the first notice or 15 days mentioned in the second notice and their official work will be revived only after completion of stipulated period of 45 days or 15 days only. The stipulated days mentioned in the notice either 45 days or 15 days is only time allotted to the trader to comply with points mentioned in the notice to maintain fire safety measures. RFO and

DFO as accused officers 1 and 2 got every right to proceed further in pursuance of the said notice, in case the trader fails to comply with. So, it is a continuous process and official work exist on the table of AO1 and AO2 ever since the date of issuance of notice to the trader till either complied with the said points by the trader or initiation of legal action against the trader by follow the procedure deposed by Pw3 which is not disputed by accused officers. It is not the case of accused officers 1 and 2 that either Pw1 or Pw2 complied with the points mentioned in Ex.P2 notice prior to date of trap to say that accused officers 1 and 2 have no right to initiate any action in continuation of Ex.P2 notice. For these reasons, this Court finds no force in the argument of Ld.Advocate for accused officers 1 and 2 that absolutely there is no pending work on the table of accused officers 1 and 2 as on 17.9.2011 and that if there is any pending work that arose only 19 CC 14/2013, ACB COURT/VSP after 19.9.2011. In other words, this Court holds that official work is pending on the table of accused officers 1 and 2 to do to Pws.1 and 2 as on the date of trap ie., on 17.9.2011.

41. One of the defences raised by accused officers 1 and 2 in this case is that

Pw1 is an advocate and habitual complainant to ACB office, Visakhapatnam and he is a court bird and that he bore grudge against accused officers and gave false complaint against accused officers 1 and 2 as both of them were responsible for rejection of the earlier application of Pw2 for issuance of No Objection Certificate from Commissioner of

Police, Visakhapatnam to store 5000 kgs of manufactured fire works in storehouse at

Ravindra Nagara, Visakhapatnam.

42. To substantiate the said defence, accused officers got elicited during cross- examination of Pw1 that Pw1 practiced as an advocate from 1988 to 2008 and that he gave complaint against one A.Narasimha Rao, the then DCTO, Visakhapatnam to ACB officials before this Court and got laid trap by ACB officials and caught hold him (witness volunteers that A.Narasimha Rao demanded him bribe amount to do official favour in the year 2003) and that he gave a complaint against one S.Nagaraju, the then Special RI,

Land Acquisition in the office of Special Deputy Collector, Visakhapatnam to the ACB officials and got laid trap by ACB officials and caught hold him (witness adds that he gave the said complaint in 2008 as S.Nagaraju demanded him bribe amount to do official favour). The above facts are also admitted by Pw2 who is the wife of Pw1. Simply on the ground that Pw1 gave complaints against two public servants to ACB officials and got laid trap against them prior to this case, Pw1 cannot be branded as habitual complainant to

ACB office, Visakhapatnam. The incident mentioned in the said reports by Pw1 might have happened. No adverse evidence is placed by accused officers 1 and 2 in this case to say that those two complaints lodged by Pw1 herein are false. Accused officers 1 and 2 in this case did not place any material that those two complaints lodged by Pw1 herein against two public servants were referred by ACB officials as “false”. At least, accused officers herein did not place material that those two criminal cases were ended in acquittal. But one fact should be born in the mind of Court that Pw1 herein is an advocate practiced upto 2008 in which year he met with an accident then reduced his practice and in view of gave two complaints to ACB officials against public servants earlier to this case and participated in the trap proceedings in those cases, Pw1 well- 20 CC 14/2013, ACB COURT/VSP versed with procedure of lodging complaint to ACB officials and trap against public servants. Therefore, the evidence of Pw1 should be scrutinized carefully and cautiously.

43. One of the defences of accused officers 1 and 2 herein is that Pw1 used to lodge reports against public servants to ACB officials to carry out illegal business. Pw1 during his cross-examination admitted that III Town police registered a crime vide Crime

NO.533/2010 against his wife (Pw2) for the offence u/ss.5 and 9(b) of Explosive substance Act. Pw1 volunteers that the said crime was registered on holding excess stock and that the case was ended in acquittal. The same is not denied by accused officers, during further cross-examination of Pw1. Pw2 during her cross-examination deposes that she does not remember whether III Town Police registered a crime vide Crime

NO.533/2010 for the offence u/ss.5 and 9(b) of Explosive substance Act. She volunteers that III Town police registered a crime against her on the ground of having excess stock and that the said case was subsequently closed.

44. Simply because, a crime is registered against Pw2 by III Town police,

Visakhapatnam holding excess stock in the business premises which does not mean that she is carrying illegal business. No evidence placed by accused officers herein to the effect that either Pw1 or Pw2 were convicted in any case of carrying illegal fire cracker business. Therefore, it is not safe to hold that Pw1 is an habitual complainant to ACB officials against public servants to carry out illegal business of his wife.

45. Regard defence plea that Pw1 and Pw2 bore grudge against accused officers 1 and 2, version of accused officers is that earlier application of Pw2 submitted to

Commissioner of Police, Visakhapatnam for issuance of No objection certificate (NOC) to store 5000 kgs of manufactured fire works in storehouse at Ravindra Nagar,

Visakhapatnam (not related to subject fire work shop of Pw2 which is at Krishna college road, Maddilapalem, Visakhapatnam) was rejected based on the recommendations of

RFO and DFO ie., accused officers 1 and 2.

46.Pw2 admitted the suggestion given by Ld.counsel for AO1 during her cross- examination that her application for NOC regard storage godown was rejected at the instance of AO1 and AO2. She denied another suggestion that she got filed false complaint through her husband Pw2 against AO1 and AO2 on the grudge that AO1 and

AO2 are responsible for rejection of her application for NOC and that AO1 and AO2 issued notices i.e., Ex.P2 and P7.

21 CC 14/2013, ACB COURT/VSP

47. The important piece of evidence during cross-examination of Pw1 on this regard is as follows:

“It is true that my wife submitted Ex.P3 application to Commissioner of Police, Visakhapatnam after AO1 joined into service as RFO, GVMC, Visakhapatnam. I cannot say whether CP, Visakhapatnam directed AO1 RFO on 3.6.2011 to enquire and submit remarks and the same was received by AO1 on 7.6.2011. Witness stated that he does not know the dates emtnioned above but CP directed AO1 to enquire and submit remarks on the application of my wife. AO1 might have directed AO2 and station fire officer Sarat kumar to inspect the premises and submit report to him. AO2 and SFO in turn inspected the premises and submit report not recommending to issue NOC and that AO1 in turn submitted report not recommending to issue NOC to the Commissioner, GVMC, Visakhapatnam through chief city planner on 23.6.2011 and that the same was approved by the Commissioner, GVMC, Visakhapatnam on 12.7.2011 and that AO1 for the Commissioner, GVMC, Visakhapatnam sent letter dt.23.7.2011 to CP Visakhapatnam to reject issuance of NOC and that CP, Visakhapatnam rejected to issue NOC to my wife based on the recommendation of RFO ie., AO1. Witness further adds that the NOC sought for by my wife is for another premises but not the premises of shop reltaed to the case. Now I can't say the date, month or year of alleged demand of Rs.50,000/- but they demanded me such bribe amount prior to inspection of premises by DFO and SFO related to application of my wife for NOC. RFO ie., aO1 demanded me bribe of Rs.50,000/- in that connection. I can't give the date, month or year or period prior to 5.8.2011 regard inspection of premises made by DFO and SFO on the application of my wife for NOC. I have not informed to anybody regard demand of Rs.50,000/- by RFO with regard to issuance of NOC from the date of such demand till date of Ex.P4 complaint. (Ex.P4 complaint is in respect of demand of bribe amount of subject matter of the case but not demand for recommendations for NOC)”.

48. In view of evidence of Pws.1 and 2 mentioned supra, it is evident that after

AO1 assumed charge as RFO, GVMC, Visakhapatnam. Pw2 applied to Commissioner of

Police, Visakhapatnam for grant of No Objection Certificate vide Ex.P3 dt.23.5.2011 to store 5000 kgs of manufactured fire works in storehouse at Ravindra Nagar,

Visakhapatnam and that Ex.P3 was forwarded by Commissioner of Police, Visakhapatnam to Fire Prevention Wing, GVMC, Visakhapatnam for verification vide Ex.P10 proceedings dt.3.6.2011 and that the said proceedings reached Chief City Planner (CCP), GVMC,

Visakhapatnam and he in turn made endorsement to RFO ie., AO1 on 6.6.2011 as “for urgent necessary action” and that then it reached RFO ie., AO1 and that he in turn made 22 CC 14/2013, ACB COURT/VSP endorsement on it on 7.6.2011 as “Joint Inspection of RFO, DFO and SFO” and that DFO ie., AO2 and SFO ie., Pw3 together inspected the premises and prepared Ex.P9 self appraisal-cum-inspection report dt.17.6.2011 and submitted it to RFO ie., AO1 on 17.6.2011 by not recommending to issue NOC vide Ex.P12 inspection report and that

RFO ie., AO1 submitted office note dt.23.6.2011 to Chief City Planner, GVMC,

Visakhapatnam who in turn called for remarks from Asst. City Planner, Zone-I (ACP-1) on 24.6.2011 by make an endorsement on the said office note and that. ACP-1 made endorsement to Town Planning Assistant (TPA) on 25.6.2011 as “for urgent remarks” and thereafter, TPA submitted remarks to ACP-1 on 26.6.2011 by stating that NOC may be rejected and that the file reached Chief City Planner from ACP-1 and then Chief City

Planner made endorsement on 12.7.2011 as “basing on the remarks of Town Planning

Assistant and RFO ie., AO1 the proposed sanction may be rejected”. Ex.P13 is note file dt.23.6.2011 which contains the endorsements mentioned above. After receipt of the file,

RFO ie., AO1 for the Commissioner, GVMC, Visakhapatnam gave Ex.P14 letter dt.23.7.2011 to Commissioner, GVMC, Visakhapatnam by inform that the permission for construction of storehouse for 5000 kgs manufactured fire works at Door No.6-324,

Chinagadili, Gandhinagar, Ravindranagar-2, Visakhapatnam is herewith rejected. The said letter was dispatched through local tappal on 25.7.2011 evidenced by Ex.P15. Thereafter,

Commissioner of Police, Visakhapatnam rejected the request of Pw2 for issuance of NOC.

Pw3, the then SFO, GVMC, Visakhapatnam admitted above events during his evidence.

Therefore, the fact remains that earlier application of Pw2 addressed to Commissioner of

Police, Visakhapatnam for issuance of NOC was rejected based on recommendations of

Town Planning Asistant and RFO ie., AO1 who relied on the inspection report submitted by DFO ie., AO2 and SFO ie., Pw3. No doubt, Pw1 during his cross-examination adds that in connection with the NOC sought for by Pw2, he met AO1 and AO2 and that they demanded bribe of Rs.50,000/- and he refused to pay the same. Pw2 failed to give date, month or year of such demand of Rs.50,000/- by AO1 and AO2 for recommendations to

Commissioner of Police, Visakhapatnam to issue NOC. In fact, the said demand of

Rs.50,000/- is not the subject matter of the case on hand. Hence I left it open without adjudication whether it is genuine or not.

49.Any how, express contents of Ex.P4, report lodged by Pw1 before DSP, ACB,

Visakhapatnam and put the criminal law into motion and chief examination of Pw1 are 23 CC 14/2013, ACB COURT/VSP important for consideration which contains that on 5.9.2011 AO1 issued notice ie., Ex.P2 to Pw1 by call him to office vide Rc.No.15724/2010 of fire wing dt.5.9.2011 and demanded him that he earlier rejected his NOC for storehouse godown as he did not pay demanded bribe of Rs.50,000/- and now also he will not allow him to carry the business, if the demanded bribe amount is not paid. The version of AO1 and AO2 in this case is that Pw1 bore grudge against them in view of their remarks as not recommended to issue NOC to Pw2. Commissioner of Police, Visakhapatnam rejected Ex.P3 application of

Pw2, resulting NOC was not issued to Pw2. Evidence of Pw3 mentioned supra which is not disputed by AO1 and AO2 shows that Pw3 and AO2 together inspected premises of

Pw2 on 17.6.2011 evidenced by Ex.P9 and both of them prepared Ex.P12 inspection report dt.17.6.2011 and submitted it to RFO ie., AO1 who in turn submitted office note dt.23.6.2011 evidenced by Ex.P13 to Chief City Planner, GVMC, Visakhapatnam who obtained remarks from Asst. City Planner, Zone-I (ACP-1) who relied on the remarks of

Town Planning Assistant (TPA) and Chief City Planner made endorsement on 12.7.2011 as “proposed sanction may be rejected”. It shows that AO1 and AO2 alone are not responsible for rejection of NOC sought by Pw2. The role of Pw3, the then Station Fire

Officer, GVMC, Visakhapatnam and role of Town Planning Assistant (TPA), role of

Assistant City Planner, Zone-I, (ACP-I) and the role of Chief City Planner (CCP) besides the role of RFO and DFO ie., AO1 and AO2 to communicate to Commissioner of Police,

Visakhapatnam as “proposed sanction may be rejected”. Consequently, Commissioner of

Police, Visakhapatnam rejected Ex.P3, application of Pw2 and not issued NOC to Pw2. If really, Pw1 had bore grudge against officials of GVMC, Visakhapatnam for not recommended to Commissioner of Police, Visakhapatnam for issuance of NOC to Pw2,

Pw1 should have bore grudge against not only RFO and DFO ie., AO1 and AO2 but also against SFO ie., Pw3 as well TPA, ACP-I and CCP, GVMC, Visakhapatnam but Pw1 did not initiate any action against CCP, ACP1 and TPA, GVMC, Visakhapatnam and so also, against Pw3, the then SFO. In fact Pw3, the then SFO made inspection of subject shop of

Pw2 along with DFO ie., AO2 together made inspection on 5.8.2011 evidenced by Ex.P1.

The initial of Pw3 is also found place on Ex.P2 notice which was issued by AO1 besides initial of AO2. So, the role of Pw3 along with AO2 regard inspection of subject shop of

Pw2 as well as subsequent issuance of notice covered by Ex.P2 is established. In fact

Ex.P9 and P12 established joint inspection made by AO2 and Pw3 regard proposed 24 CC 14/2013, ACB COURT/VSP premises of Pw2 for wholesale file crackers storage. Pw3 is not shown as an accused in

Ex.P4 report to ACB officials and no grievance expressed by Pw1 during his evidence against Pw3. In fact Pw3 declared as hostile, on completion of chief and cross- examination, at request of Ld.Special Public Prosecutor for ACB as Pw3 destroyed the core of the case of prosecution by giving some admissions to the suggestions made by

Ld.Advocate for AO1 during cross-examination and then Ld.Spl.PP for ACB made cross- examination of its own witness ie., Pw3. Pw3 shows hostile attitude during cross- examination made by AO1 for various reasons. One of such reasons may be Pw3 is colleague employee of AO1 and AO2 of this case. In fact Pw3 is not cited by prosecution as a witness to prove the conversation between Pw1 and AO2 on 5.8.2011 or demand of bribe made by AO1 to all fire crackers shop owners including Pw1 who attended office on behalf of Pw2 on 5.9.2011.

50. Therefore, if really Pw1 bore grudge against officials of GVMC,

Visakhapatnam or on the ground of responsibility for not recommendations to

Commissioner of Police, Visakhapatnam to issue NOC to Pw2, Pw1 should have include

Pw3, the then SFO in this case though not CCP, ACP-I, TPA of GVMC, Visakhapatnam as a accused, but Pw1 did not add Pw3 as one of the accused in this case.

51.Hence this Court finds no force in the argument of accused officers that

Pws.1 and 2 bore grudge against accused officers 1 and 2. Even assume for the sake of argument that Pws.1 and 2 bore grudge against Accused officers 1 and 2 in view of earlier episode regard NOC of Pw2, the entire case of prosecution including evidence of

Pws.3, 6 to 10 besides evidence of Pws.1 and 2 should not be brushed aside by holding that Ex.P4 report is a false one lodged before ACB officials on the grudge against AO1 and AO2. But at best Court has to scrutinize the evidence of Pw1 and Pw2 with a little bit more care and caution.

52. Coming back to discuss the evidence of prosecution regard vital elements for the offence punishable u/s.7 of PC Act ie., demand and acceptance of bribe to do official favour, prosecution relied on the evidence of Pws.1, 2, and 7 (for demand) and Pws.6 and 8 (for recovery of tainted amount). In the case on hand, two public servants are facing the charges for the offence punishable u/ss.7 and 13 (1)(d) read with section 13(2) of PC Act. As per case of prosecution and evidence of Pw1, initial demand of bribe made on four dates besides on the date of trap ie., on 17.9.2011. As per Ex.P4 report 25 CC 14/2013, ACB COURT/VSP and evidence of Pw1, first date of initial demand is on 5.8.2011 made by AO2 alone during inspection of subject shop of Pw2. Second date of initial demand of bribe is on 19.8.2011 made by AO1 to Pw1 in his office. Third date of initial demand is on 5.9.2011 made by AO1 in his office to Pw1 as well other wholesale fire cracker shop owners including Pws.4, 5 and 7. Last date of initial demand of bribe is on 15.9.2011 made by

AO1 and AO2 to Pw1 and on that date, the bribe amount was reduced from Rs.20,000/- to Rs.15,000/- on the request of Pw1 by accused officers. Besides that the case of prosecution is that AO1 further demanded Pw1 on the date of trap and on his directions

Pw1 handed over bribe amount to AO2 and immediately both of them caught hold red handed, tested positive to both hand fingers of AO2 and inner linings of pant of AO2 and recovered tainted cash of Rs.15,000/- form left side pant pocket of AO2 by ACB officials in the presence of mediators.

53. Accused officers 1 and 2 denied the initial demand of bribe on initial date as well as on the date of trap and acceptance of bribe amount from Pw1. Prosecution relied on evidence of Pws.1 and 2 to establish initial demand of bribe amount on 5.8.2011 by

AO2, evidence of Pw1 alone to prove initial demand of bribe by AO1 on 19.8.2011, evidence of Pws.1,4,5 and 7 to establish initial demand of bribe by AO1 on 5.9.2011 and evidence of Pw1 alone to prove initial demand of bribe of Rs.20,000/- and reduction to

Rs.15,000/- by AO1 and AO2 on 15.9.2011. Regard demand and acceptance of bribe amount on the date of trap, prosecution relied on the evidence of Pw1.

54. At this stage, Ld.Advocates for accused officers argued that sole testimony of Pw1 without corroboration cannot be considered regard demand and acceptance of bribe as Pw1 bore grudge against AO1 and AO2 and relied on a decision in the case in between T.Ramesh Reddy vs. State of Andhra Pradesh 10 wherein it was held that, “When a case rests upon the evidence of a solitary witness, the law is well settled that it must be true, trustworthy free from doubt and wholly reliable, when the evidence of a witness is put in the category of wholly reliable, then there is no legal bar to base conviction on the solitary testimony of the witness. Therefore the evidence of Pw1 has to be scrutinized carefully and cautiously so as to place any reliance on his evidence. On this aspect it is pertinent to refer to a decision in Vadvivelu Thevar vs. The State of Madras 11 where it was clearly held thus para 10 generally speaking oral testimony in this contest may classified into these categories namely:- i) Wholly reliable ii) Wholly unreliable 102010(1) ALD (CRL) 342 AP 111957 SC 614 26 CC 14/2013, ACB COURT/VSP and iii) Neither Wholly reliable nor Wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict of it may acquit on the testimony of a single witness, it is found to be above re-approach on suspicion of interestedness, incompetence or subordination. In the second category the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony director circumstantial”.

55. Basing on the above principles in mind, it has to be seen whether Pw1 in the case on hand is wholly reliable witness or not.

56.Then first initial demand dt.5.8.2011 is concerned, the evidence of Pw1 is thus, “On 5.8.2011 District Fire Officer (DFO), GVMC, Visakhapatnam by name B.Amminaidu ioe., Accused officer No.2 along with Station Fire officer (SFO) byname Sarat Kumar came to our shop for inspection and that they conducted inspection of our shop and while so they obtained signature of my wife on self appraisal and inspection report......Ex.P1 is copy of self appraisal-cum- inspection report dt.5.8.2011. Accused officer No.2 informed me that they had not initiated any action on the notice issued in the last year and they will not keep quiet this time and so saying demanded me to pay Rs.20,000/- as a bribe for not taking action this time and to allow us to run the business and asked me to met regional fire officer (RFO) in the office to discuss with him and left the premises and that my wife was present along with me in the shop by them”. The evidence of Pw2 is thus, “Pw1 is my husband…Pw1 used to look after my business affairs...On 5.8.2011 AO2 Amminaidu and one Sarathkumar came to my shop and obtained my signature on a report and that the signature on Ex.P1 is mine and that AO2 demanded me and Pw1 bribe of Rs.20,000/- and that Pw1 informed to AO2 that he will meet in the office.

57.Ld.Advocates for accused officers argued that Pws.1 and 2 are giving different versions relating to demand said to have been made by AO2 to them and that

Pw1 deposes that AO2 demanded him only whereas Pw2 deposes that AO2 demanded her and Pw1 and that further Pw1 deposes that AO2 asked him to meet RFO whereas

Pw2 deposes that Pw1 informed to AO2 that he will meet in the office.

58.It is an admitted case that Pw1 is husband of Pw2 and the license of

M/s.Ravi Tej Traders at Visakhapatnam in Fire crackers stand in the name of Pw2. It is 27 CC 14/2013, ACB COURT/VSP also an admitted case that AO2 as DFO, GVMC, Visakhapatnam and Pw3 as SFO, GVMC,

Visakhapatnam together inspected the shop of Pw2 on 5.8.2011 and obtained signature of Pw2 on Ex.P1 self appraisal-cum-inspection report. Pw1 husband of Pw2 was also present at the shop by then. It is the version of Pw1 and Pw2 that Pw1 has been looking after business affairs of Pw2. No doubt, Pw1 did not say that AO2 demanded his wife beside him bribe of Rs.20,000/- on 5.8.2011 as deposed by Pw2 but on that score alone, testimony of Pw1 and Pw2 regard demand of bribe amount of Rs.20,000/- by AO2 on 5.8.2011 cannot be rejected. Since they are wife and husband inter se and both of them admittedly present at the shop on 5.8.2011 on which date AO2 and Pw3 together inspected the shop evidenced by Ex.P1 and Pw1 alone has been looking after business affairs on behalf of Pw2 and on that context, Pw1 deposes that AO1 demanded “him” not as “us”. Whereas, Pw2 who is wife of Pw1 and her business affairs are looking after by her husband ie., Pw1 deposed that AO2 demanded “them” bribe amount. Further Pw1 deposes that AO2 asked him to meet RFO in the office, whereas Pw2 deposes that Pw1 informed to AO2 that he will meet in the office. Pw2 is a woman and not well-versed with business affairs and as such her business affairs are looking after by her own husband ie., Pw1. As such some variations in the evidence of Pws.1 and 2 occurs regard demand of bribe to Pw1 alone or to both of them as well regard subsequent visit to office of Fire

Prevention Wing, GVMC, Visakhapatnam. It is not a contradiction particularly material contradiction to take into consideration to discard the evidence of Pws.1 and 2. Evidence of Pw1 is corroborated with Ex.P4 report.

59. Pw3, the then Station Fire Officer, GVMC, Visakhapatnam inspected the shop of Pw2 on 5.8.2011 along with AO2 but Pw3 did not say regard demand of bribe amount of Rs.20,000/- by AO2 to Pw1 during his chief-examination. In fact prosecution cited Pw3 as witness to prove the inspection of shop of Pw2 on 5.8.2011 and to establish the procedural aspects after issuing notice to Fire Cracker Trader but not to prove the event of demand of bribe amount by AO2 to Pw1. But during cross-examination of Pw3

Ld.Advocate for Accused officers put suggestion to the mouth of Pw3 and got obtained admissions of the suggestions which are destroyed the core of the case of the prosecution. As such, after completion of cross-examination of Pw3 by accused officers,

Ld.Spl.PP for ACB sought for permission from the court to declare the witness as hostile and permit him to put leading questions to its own witness. After hearing both sides, 28 CC 14/2013, ACB COURT/VSP court declared Pw3 as hostile and permitted Ld.Spl.PP for ACB to cross examine Pw3.

Thereby Pw3 cross examined by Ld.Spl.PP for ACB.

60. Pw3 admitted suggestions during cross-examination by Ld.Advocates for accused officers such as:- “Either myself or AO2 did not demand either PW1 or PW2 any amount on 5.8.2011. It is true that myself and AO2 together inspected other shops also at Visakhapatnam. It is true that on 5.8.2011 myself and AO2 together went to shop of PW2 and conducted inspection and that we together returned from the said shop....It is true that at any time myself, AO1 and AO2 together did not demand bribe amount from any trader including PW1 by call them to the office for the purpose of meeting. During cross-examination of Pw3 by Ld.Spl.PP for ACB, Pw3 deposes that, “It is true that inspector of police, ACB examined and recorded my statement regard events of inspection of PW2 on 5.8.2011 and regard procedure for inspection. It is not true to say that I have stated before inspector of ACB while recording my statement u/s.161 Cr.P.C., that “during inspection, B.Amminaidu, DFO had a confidential discussion with M.Ramachandra Rao (Pw1) and that I have no knowledge about the discussion between DFO and Ramachandra Rao as covered by Ex.P16. Ex.P16 is relevant portion in the statement of witness (PW3) as above u/s.161 Cr.P.C., It is true that I have not stated before Inspector, ACB that through out inspection of shop of PW2, I was with AO2.

61.In view of the contents of statement of Pw3 covered by Ex.P16 ie., relevant portion in his statement recorded u/s.161 of Cr.P.C., by investigating officer, the case of prosecution is that during inspection of shop of Pw2 on 5.8.2011, AO2 had confidentially discussed with Pw1 and that Pw3 has no knowledge about the discussion between AO2 and Pw1. If really Pw3 did not say before investigating officer as mentioned in Ex.P16 while recording his statement u/s.161 of Cr.P.C., there is no necessity to investigating officer to mention like that. There is no evidence on record to show that the investigating officer got enmity with AO1 and AO2 to create statement of Pw3 u/s.161 of Cr.P.C., including Ex.P16 portion. Pw3 deposes in opening lines of his evidence that, now he is residing at Guntur and he was removed from service on 1.9.2012 and that previously he worked as Station Fire Officer, GVMC, Visakhapatnam from 13.1.2011 to 01.09.2012 ie., till the date of his removal from service. It shows that Pw3 was co-employee of Accused officers 1 and 2 in Fire Prevention Wing, GVMC, Visakhapatnam at relevant point of time 29 CC 14/2013, ACB COURT/VSP of this case. Later he was removed from service and as such he is not in service as on the date of his evidence in the Court. Therefore, he might have admitted the suggestion given by Ld.counsel for AO during his cross-examination that either himself or AO2 did not demand either Pw1 or Pw2 any amount from 5.8.2011. In fact it is not the case of prosecution or Pw1 that Pw3 had also demanded bribe along with AO2 from Pw1. In such circumstances Pw3 need not depose that either himself or AO2 demanded bribe. He can say straight away that on 5.8.2011 AO2 did not demand bribe either from Pw1 or Pw2 in his presence during inspection of shop of Pw2 but he did not depose like that. For any one of the reasons mentioned supra, no value for the evidence of Pw3 made during his cross-examination is given. Evidence of Pw3 did not give any doubt to disbelieve the consistent evidence of Pws.1 and 2 regard demand of bribe amount of Rs.20,000/- made by AO2 on 5.8.2011. Moreover evidence of Pw1 is corroborated with express contents of

Ex.P4 report lodged before DSP, ACB, Visakhapatnam. Thus, prosecution proved initial demand of bribe amount of Rs.20,000/- by AO2 on 5.8.2011.

62. Then initial demand dt.19.8.2011 is concerned, the evidence of Pw1 is thus, “On 19.8.2011 I went to the fire wing office at GVMC and met AO1 by name Mohana Rao and discussed about the matter informed to me by aO2 regard visit of our shop and demand of bribe of Rs.20,000/- by AO2 and that AO1 confirmed the demand of bribe of Rs.20,000/- made by AO2 and further informed that there are 8 shops in entire Visakhapatnam city and asked me to collect Rs.20,000/- from each shop as a bribe and give to him, otherwise he will issue notices to all the shops and seize the shops and that I refused to collect the bribe amount from all the shops and informed AO1 to collect the bribe amount from those shops directly and then AO1 demanded me to pay Rs.20,000/- bribe for my shop as the same will be appropriate among them and that I informed AO1 that I will think and inform later and returned.

63.The said portion of evidence of Pw1 is not disturbed by AO1 during cross- examination of Pw1. In view of the evidence of Pw1 mentioned above AO1 not only demand bribe amount from Pw1 but also asked him to collect bribe amount at

Rs.20,000/- each from 8 shop owners in Visakhapatnam city otherwise he will issue notices to all the shops and seized the shops. If really, no such incident took place between AO1 and Pw1 on 19.8.2011 in the office of AO1 and that it is created by Pw1 out of grudge against AO1 and AO2. Pw1 need not create to drag other shop owners into this 30 CC 14/2013, ACB COURT/VSP case. Moreover the subsequent admitted event in this case is that AO1 called all shop owners in Visakhapatnam city to his office on 5.9.2011 and served notices to them.

Pws.4, 5 and 7 wholesale fire cracker owners of Visakhapatnam city admitted in their evidence regard service of notices by AO1 on 5.9.2011. The same is also not disputed by accused officers more particularly AO1. So, the evidence of Pw1 mentioned above regard demand of bribe amount by AO1 on 19.8.2011 is fortified with subsequent issuance of notices by AO1 to all traders including Pw1 who received notice on behalf of Pw2, which are evidenced by Ex.P2, P17, P20 and P36. Thus, the evidence of Pw1 gain confidence of the Court and falls in the category of wholly reliable. Therefore evidence of Pw1 is relied.

Thereby, prosecution proved demand of bribe of Rs.20,000/- by AO1 on 19.8.2011 from

Pw1.

64. Then initial demand of bribe amount dt.5.9.2011 is concerned, prosecution relied on the evidence of Pws.1, 4, 5 and 7. Pw1 supported the case of prosecution regard demand of bribe of Rs.20,000/- by AO1 on 5.9.2011 in his office. Pw4 admitted that he was called by AO1 to the office on 5.9.2011 and accordingly he attended the office of AO1 on 5.9.2011 along with other shop owners and received notice evidenced by

Ex.P17 dt.5.9.2011 but did not admit the rest of the case of prosecution regard demand of bribe of Rs.20,000/- from each trader by AO1. It may be for various reasons. So, the evidence of Pw4 is not available to prosecution to corroborate the evidence of Pw1 regard demand of bribe by AO1 made on 5.9.2011. Pw5 half heartedly deposes evidence in this case. During chief-examination, he admitted that AO1 demanded the traders to pay bribe of Rs.20,000/- by each on 5.9.2011 in his office but during cross-examination, he denied the same but admitted his attendance to the office of AO1 and receipt of notice on 5.9.2011 ie., evidenced by Ex.P20. It may be also for various reasons. So the evidence of

Pw5 is also not available to prosecution for corroboration to the evidence of Pw1. Pw7 supported the case of prosecution and corroborated with the evidence of Pw1 regard demand of bribe amount of Rs.20,000/- from each trader by AO1 in his office on 5.9.2011 by call them to the office and hold a meeting and served notices. The same is evidenced by Ex.P36. Nothing has been elicited by accused officers during cross- examination of Pw7 to discard his evidence. No material is placed by accused officers on record to show the interestedness of Pw7 either to prosecution or to Pw1 to say that Pw7 is supported the case of prosecution. It is not the case of accused officers that Pw7 got 31 CC 14/2013, ACB COURT/VSP enmity against AO1 and AO2 to say that Pw7 deposed falsity against them. Thus, Pw7 is an independent witness and his evidence is trustworthy for consideration. Therefore, prosecution proved with the evidence of Pws.1 and 7 that AO1 demanded bribe amount of Rs.20,000/- from each trader including Pw1 on 5.9.2011 at his office.

65. Then demand of bribe dt.15.9.2011 is concerned, prosecution relied on the evidence of Pw1. His evidence is thus:- “On 15.9.2011 I again went to GVMC office and met AO1 and AO1 and they verified me whether I am willing to give demanded bribe amount of Rs.20,000/- or not. I informed to them that I am maintaining preventive measures in the business and expressed that I am unable to pay such bribe amount. On that they reduced the bribe to Rs.15,000/- and asked me to pay the same before Saturday as they are leaving the city on camp.

66.The said piece of evidence of Pw1 is not squattered or disturbed by accused officers during cross-examination of Pw1. There is no necessity to Pw1 to create the said version to lodge report against AO1 and AO2 before ACB officials. Pw1 need not mention four dates of initial demand of bribe by Accused officers to maintain a complaint against them before ACB officials. The only defence raised by AO to attack demand of bribe dt.15.9.2011 is that there is no purpose to Pw1 to visit office of AO1 and AO2 on that date. This Court finds no force in the said argument as Ex.P2 notice dt.5.9.2011 served to Pw1 on behalf of Pw2 by AO1 and thereby the issue ie., initiation of action opens and continuous. No adverse evidence placed by accused officers to disbelieve the evidence of

Pw1 regard demand of bribe of Rs.20,000/- and reduced it to Rs.15,000/- by AO1 and

AO2 on 15.9.2011 at their office. Moreover, the evidence of Pw1 gained confidence of the

Court. Thus, prosecution proved demand and bribe of Rs.20,000/- and reduced to

Rs.15,000/- by AO1 and AO2 on 15.9.2011.

67. Coming to trap, Court has to consider whether it is successful or not. For which, prosecution relied on the evidence of Pws.1, 6 and 8 coupled with Exs.P24 and

P34 ie., pre and post trap proceedings/mediators report I and II besides Mos.1 to 10.

68. Pw1-defacto complaint, Pw6-mediator for pre and post trap proceedings and

Pw8-trap laying officer deposed consistently in one version and corroborated with the contents of Exs.P24 and P34. During pre trap proceedings, Pw1 handed over proposed bribe amount of Rs.15,000/- to mediators, who verified the denomination and serial 32 CC 14/2013, ACB COURT/VSP numbers of the currency notes noted down in Ex.P24 and as per instructions of Pw8, the then DSP, ACB, Visakhapatnam constable applied phenolphthalein powder to the said currency notes and then called Pw1 into room and kept tainted amount in his shirt pocket and instructed Pw1 not to touch the said amount until bribe mongers further demanded and that in case bribe mongers further demanded and accepted bribe amount, he has to came out and give signal to Inspector by wiping his face with handkerchief. Inspector,

ACB was instructed to closely follow Pw1 and receive signal from him and rely signal to

DSP, ACB, mediators and staff. The same is not disputed by accused officers. Any how, evidence of Pws.1, 6 and 8 supported with Ex.P24.

69.During the trap Pw1 stated that at about 4.50 p.m., all of them went in two vehicles and reached parking place opposite to GVMC main building and that DSP reiterated the instructions to him and Inspector, Nageswara Rao and that he went to office of AO1 and AO2 located in first floor of GVMC building and that he noticed AO1 and AO2 sit in their respective places in one room and that AO1 asked him whether he brought demanded bribe amount of Rs.15,000/- and that he gave positive reply and that

AO1 asked him to give the bribe amount to AO2 and that at the same time AO1 instructed AO2 to receive the amount from him and kept it safely and that he gave tainted cash of Rs.15,000/- to AO2 and AO2 received the amount with his right hand and transferred it to his left hand and kept it in left side pant pocket and that AO1 and AO2 informed him that they will not take any action against him and that he can carryout business and that he came out from the office room and gave pre arranged signal to

Inspector, Nageswara Rao by wiping his face with handkerchief and that immediately trap party members reached to the office room of AO1 and AO2 and that DSP asked him to wait outside and that they went inside the office room and that about two hours thereafter DSP called him into the room of AO1 and AO2 and enquired him and that DSP confronted the version of AO1 and AO2 with him and he denied the same and that the same is mentioned in post trap proceedings. The evidence of Pw1 mentioned above, is denied by accused officers. In the case on hand, accused officers 1 and 2 engaged their respective advocates and defend them separately and got cross-examined Pw1 separately by their respective advocates. Likewise, cross-examination of Pws.6 and 8 separately by AO1 and AO2. It is surprise to note that during cross-examination of Pw1 by AO1, the following suggestion is given to Pw1:- 33 CC 14/2013, ACB COURT/VSP “It is not true to say that on the date of trap at about 5.15 p.m.,when AO2 completed his work and returning from his room and entered in the corridor I tried forcibly to keep amount in his hands and that AO2 refused to receive it and pushed the amount with his hands and then I trusted the amount in the left side pant pocket of AO2 and that AO2 took out the amount from his pant pocket and tried to return it to me and that I immediately went out and in the meanwhile ACB officials apprehended AO2 in the corridor and make AO2 to keep the amount in his hand and kept it in his left side pant pocket and took him to his room”.

70. In view of the said suggestion AO1 was not present along with AO2 in the corridor by then. The said suggestion is not put by AO2 during cross-examination of Pw1.

AO2 did not adopt cross-examination of Pw1 made by AO1 and proceed with further cross-examination of Pw1. In fact record disclose that AO2 seeks time to cross-examine

Pw1 after completion of cross-examination of Pw1 by AO1. Later on different date Pw1 was cross-examined by AO2 independently in length. No similar suggestion mentioned supra was given to Pw1 by AO2 during cross-examination. It shows that it is not the version of AO2. This Court do not understand how AO1 put such suggestion during cross- examination of Pw1 when he was not present along with AO2 in the corridor when Pw1 met and offered amount. It is not the case of AO1 that he received information from AO2 and made cross-examination of Pw1. It shows that AO1 created a defence for the sake of defence and put such suggestion without his personal knowledge or information or instructions from AO2. No doubt, Pw1 denied the said suggestion. No positive evidence on behalf of accused officers in support of the said defence version of AO1 is adduced in this case.

71.On considering the evidence of Pws.1, 6 and 8 coupled with Ex.P34 and

Mos.1 to 10, it is evident that chemical tests were conducted to both hand fingers of AO1 which yield negative whereas chemical tests conducted to both hand fingers of AO2 yield positive, so also, chemical test conducted to inner linings of left side pant pocket of AO2 which yield positive. Coupled with the tainted amount of Rs.15,000/- marked as MO7 recovered by Pw8 in the presence of Pw6 and another mediator on being picked out the said amount by AO2 from his left side pant pocket during post trap proceedings subsequent to conduct chemical tests to both hand fingers of accused officers. If really, chemical tests are created and resultant solutions are planted, there is no need to plant 34 CC 14/2013, ACB COURT/VSP colourless resultant solution regard chemical test conducted to both hand fingers of AO1.

Prosecution can create the case that AO1 had received tainted amount and handed over it to AO2 for safe custody. At this stage, Ld.Counsel for accused officer-1 relied on a decision in between K.Giri vs. State of A.P.,12 wherein it was held that, “Once a person acts as mediator on behalf of prosecution party he loses his character as independence witness and automatically becomes a part of prosecution story”.

72.With due respect to the proportion of law in the referred decision above, this

Court has to consider evidence of Pw6, a mediator of pre and post trap proceedings with due care and caution. Simply because, he acted as mediator on behalf of prosecution during pre and post trap proceedings, his evidence cannot be thrash out. There is no evidence on record placed by accused officers to say that Pw6, mediator is interested to

Pw1 or to prosecution or Pw6 got enmity against AO1 and AO2. There is nothing in the evidence to show that Pw8 has any grouse or enmity against accused officers 1 and 2.

Pw6 and Pw8 stated in one version on oath that when they entered into room of AO1 and

AO2, they noticed that AO1 and AO2 sit in their respective places in the said room and then Pw8 disclosed his identity to accused officers and that accused officers stood stand and became pale on seeing ACB officials. So, the reaction and confusion of AO1 and AO2 when Pw8 and his raid party members rushed to the Fire Prevention Wing office, GVMC,

Visakhapatnam which is inconsistent with their innocence. How a few minutes earlier was the notes with Pw1 and immediately after the raid party rushed to the room of accused officers the marked currency notes were found in the left side pant pocket of AO2. Ld.

Special PP for ACB relied on a decision in between State of Uttar Pradesh Vs. Zakaulla 13 wherein it was held that most important evidence is that of Superintendent of Police who arranged the trap must mind the fact and that he had no interest against accused officers but the verse shown by him to bring his trap to a success is no ground to think that he had any animosity against the delinquent officers. He made arrangements to smear the phenolphthalein powder on the currency notes in order to satisfy himself that the public servants had in fact received the bribe and not that currency notes were just thrust into the unwilling officer. Such a test is conducted for his conscientious satisfaction that he 122008(2) ALD (Crl) 821 AP 13AIR 1988 Supreme Court 1474 35 CC 14/2013, ACB COURT/VSP was proceeding against a real bribe taker and that an officer with integrity is not erased unnecessarily. Thus, the evidence of such witness can be acted upon even without the help of corroboration.

73. It is clear from the evidence of Pws.1, 6 and 8, post trap proceeding covered by Ex.P34, the demanded bribe amount of Rs.15,000/- marked as MO7 recovered from

AO2 on being picked out from his left side pant pocket. Therefore, presumption u/s.20 of

PC Act comes into play as per the decision of Hon'ble Apex Court on land reported in the case in between State of Andhra Pradesh vs. R.Jeevaratnam 14 wherein Their Lordships relied upon the observations of Three Judges Bench of Hon'ble Apex Court in the case of

Raghubir Singh vs. State of Punjab15 held that, the very fact that the accused were in possession of marked currency notes against the allegation that they demanded and received the amount is RES IPSA LOQUITOR and therefore a legal presumption of U/s.20 of the Act shall be drawn.

74. The said presumption is a rebuttable one. Accused officer can rebut it either by elicit admissions during cross-examination of Pws or by place positive defence evidence with a yardstick of preponderance of probabilities but not with a yardstick of proof beyond all reasonable doubt as lies on the shoulders of prosecution to prove a criminal charge. In the case on hand, accused officers did not elicit any favourable evidence during cross-examination of Pws and at the same time did not place any positive defence evidence to rebut the said presumption. Suggestion of Pws.1, 6 and 8 by accused officers, which is denied by them, alone is not enough to rebut the statutory presumption. Therefore, the said presumption remained as unrebutted and favours the case of prosecution.

75. Ld.counsel for AO2 relied on a decision in between Bharatkumar Ramniklal

Shah vs. State of Gujarat 16, wherein it was held that, “when the demand is not established beyond reasonable doubt, then acceptance and recovery is not sufficient to convict the present appellant- accused....... The probable defence is established by the present appellant beyond reasonable doubt. In the latest decision of Hon'ble Supreme Court in the case of Banarsi Das vs. State of Haryana, reported I AIR 2010 SC 1580, wherein, the Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused not sufficient to prove the offence. In that view 14(2004) 2 ALD Criminal 486 (SC) 151997 (4) SCC 560 162011 (1) GLH 769=2011 (O) Supreme (Guj) 44 36 CC 14/2013, ACB COURT/VSP of the matter, I am of the opinion that so far as the offence of bribery is concerned, the demand and acceptance of bribe is required to be proved beyond reasonable doubt and mere proof of recovery of bribe money from accused is not sufficient to prove the offene and to hold the person guilty”

76.With due respect to the proportion of law in the referred decision, if this

Court considered the facts and circumstances of the case on hand, prosecution in the case on hand established demand of bribe amount as well acceptance of bribe and recovery of it with cogent evidence. Therefore, the proportion of law in the referred decision is not helpful to AO2 to get over from the charges.

77.Ld.Advocate for AO2 relied on one more decision in between C.Sivakumar

Reddy vs.State of AP.,17 wherein it was held that, “Admittedly, there was previous enmity between the accused and defacto complainant and that defacto complainant belongs to the group of “x” and because of that enmity, Pw1 gave a false complaint against him to ACB and the recovery of money from his pocket was not the amount demanded and accepted by him, but it was forcibly thrusted by Pw1 into his pocket in order to implicate him in the case, though he has not demanded and accepted the amount appears to be true and correct. Therefore, it cannot be said that the general presumption available in favour of the prosecution is not rebutted in the instant case. I am of the opinion that the presumption was rebutted by the accused and the plea of the accused that Pw1 thrusted the currency notes into his pocket and that he did not demand any bribe amount appears to be natural”.

78.With due respect to the proportion of law in the referred decision, this Court held that there may not be any strict jacket formula to apply the proportion of law from one case to another case and it depends upon the facts and circumstances of each case.

In the case on hand, even assume for the sake of arguments, previous grudge of Pw1 against AO1 and Ao2 is considered still prosecution established the vital elements of demand and acceptance of bribe amount by not only relied on the evidence of Pw1 but also relied on the evidence of Pw7, independent trader as well evidence of Pw6 independent mediator and evidence of trap laying officer who is examined as Pw8. The theory of trusted marked currency by Pw1 into pant pocket of AO2 in the corridor is not of AO2 but it is raised by AO1 in this case who had no information or instructions from 172005 (1) ALD (Cri) 863=2005 (2) ALT (Cri) 291 37 CC 14/2013, ACB COURT/VSP

AO2 and as per version of AO1, he was not present along with AO2 in the corridor by that time. Even assume the said theory is of AO2, still prosecution placed acceptable and cogent evidence to prove demand and acceptance of bribe amount as well as recovery of tainted amount from AO2 by examining Pws.1, 6, 7 and 8 and relied on Ex.P24 and P34 and Mos.1 to 10. Therefore, the facts and circumstances of the case on hand and the referred decision are distinguishable to each other. Thereby, AO2 did not gain any benefit by rely on the above decision to overcome from the charges facing in this case.

79. Ld.Spl.PP for ACB relied on a decision in between V.Radhakrishna Reddy vs.

State of Andhra Pradesh 18 wherein the Hon'ble Apex Court observed that, “We do not attach much importance to the fact that Pw1 may not be a genuine applicant for registration of a small scale industrial unit. That fact is wholly immaterial in judging the guilt of the appellant. Pw1 has stated that he had met the appellant on 29.7.1991 at 10.00 a.m., and the appellant had made the demand. On the next day, he had reported the matter to the police and thereafter on 31 st July 1991 a trap was arranged and the amount was recovered from him.

80.Ld.Spl.PP for ACB after relying on the aforesaid decision argued that either character of Pw1 that he gave two complaints against two public servants to ACB officials previously and got laid traps against them or he bore grudge against AO1 and AO2 are no way come across in judging guilt of the accused officers in this case but at best Court can take it into consideration for appreciating the evidence of Pw1 but not judging the guilt of the accused in this case. It is the version of accused officers that it is a false case made by Pw1 and got laid false trap in view of the grudge against accused officers 1 and 2 and issuance of notices covered by Exs.P2 and P7 to carry out illegal business. If really

Ex.P4 report is false one and Pw1 got laid a false trap against accused officers 1 and 2,

Pw1 need not create four dates of initial demand and need not involve other traders of

Visakhapatnam city ie., Pw4, 5 and 7 etc., Therefore, on careful scrutinization of the evidence of Pws.1, 2, 7, 6 and 8 in the light of Ex.P4, P24 and P34 and Mos.1 to 10, this

Court holds that prosecution proved the vital elements to constitute an offence punishable u/s.7 of PC Act, 1988 ie., demand and acceptance of bribe amount as well recovery of marked currency from accused officer for doing official favour. In view of the evidence of Pws.1, 6, and 8 and contents of Ex.P34, AO1 and AO2 found in one room and 182005 CRL.L.J 1411 38 CC 14/2013, ACB COURT/VSP

AO1 instructed Pw1 to handover the bribe amount to AO2 and further instructed AO2 to receive amount from Pw1 and kept it safely. It shows the common intention of AO1 and

AO2 in demand and acceptance of bribe amount from Pw1 to do official favour. No doubt,

Ex.P34 proceedings contain the explanation of AO1 to DSP that he had no knowledge about purpose of giving amount by Pw1 to AO2. On that explanation alone, the evidence of Pws.1, 6 and 8 and contents of Ex.P34 and recovery of marked currency ie., MO7 from

AO2 against allegations of demand and acceptance of bribe amount to do official favour in their office room and that too while AO1 was present along with AO2 cannot be brushed aside.

81. During cross-examination of Pw1, Ld. Advocate for AO1 got marked Ex.D1.

The relevant portion in the statement of witness (Pw1) recorded u/s.164 of Cr.P.C., by III

Metropolitan Magistrate, Visakhapatnam such as, “they stated to us that on the last year they have issued notice to us but not taken any action though we have not doing our business outside of the city. But if we have not given bribe amount of Rs.20,000/- they would seize our shop and went away (contradiction regard the word “they”). Pw1 voluntarily adds during cross-examination that he stated before Magistrate that DFO alone demand bribe amount on 5.8.2011 during inspection of their shop by DFP and

SFO.

82. Prosecution got recorded the statement of Pw1 u/s.164 of Cr.P.C., on 28.9.2011 ie., after more than 40 days after incident occurred on 5.8.2011. Pw1 gave statement before Magistrate u/s.164 of Cr.P.C., while so he narrated that DFO and SFO together came and visited the shop on 5.8.2011 and in continuation he stated demand of bribe amount made to him whether he stated that DFO alone demanded him or whether he stated they (DFO & SFO) demanded bribe amount on 5.8.2011 but Ld.Magistrate while recording statement in continuation of earlier part mentioned as “they” regard demand of bribe. Under these circumstances, Ex.D1 cannot be considered as a material contradiction. The fact of demand of bribe from Pw1 on 5.8.2011 at his shop is tallied with his previous statement u/s.164 of Cr.P.C., by III Metropolitan Magistrate,

Visakhapatnam. It is not the case of either of the parties that Pw3 ie., SFO had joined with DFO ie., AO2 regard demand of bribe on 5.8.2011.

83. Ld.counsel for AO1 relied on a decision in between T.Subrahmanyam Vs.

39 CC 14/2013, ACB COURT/VSP

State of Tamilnadu 19 wherein it was held that, “Where two views reasonably possible from very same evidence prosecution cannot be said to have prove its case beyond reasonable doubt”.

84.With due respect to the proportion of law, if this Court has taken up the evidence portion available in the instant case, it is clear that accused officers did not get any evidence of two views from the evidence of prosecution witness and thereby AO1 did not gain any benefit by relying on the aforesaid decision to get benefit of doubt.

85. Ld. Advocate for AO1 relied on one more decision in between Haridevi

Sharma vs. State of Delhi, wherein it was held that, “No conviction can be sustained on the basis of mere trap incident when the vital parts of the prosecution case which formed genesis for the trap incident cannot be accepted”.

86.This Court already stated supra that there will not be any strict jacket formula to apply the proportion of law from one case to another and it depends on facts and circumstances of each case. On considering the facts and circumstances of the referred decision with that of case on hand, they are not identical to each other. Thereby

AO1 did not benefit by relying on the said decision.

87. Ld. Advocate for AO1 argued that Ex.P4 contains the date underneath the signature of Pw1 in correction from “17” to “16”. The remand report prepared by investigating officer contains receipt of report as 17.9.2011. The explanation offered by

Pw1 regard date underneath his signature on Ex.P4 is that it is only overwriting but not correction and he presented it on 16.9.2011 but not on 17.9.2011 to Dy.S.P., the Deputy

Superintendent of Police, Anti Corruption of Bureau, Visakhapatnam ie., Pw8. Ex.P4 contains endorsement by Pw8 on 16.9.2011 at 11.00 hours. The date put underneath signature of Pw8 is 16.9.2011. Ex.P4 contains further endorsement on 17.9.2011 at 14.30 hours regard verification of genuineness of complaint and reputation of accused officers and registration of the said report as a crime. In fact the version of accused officers more particularly AO1 is that Ex.P4 is a false report and brought into existence by Pw1 to initiate false trap. If really Ex.P4 report is not lodged on 16.9.2011 and handed over it to Pw8 on 17.9.2011, there is no hurdle to Pw1 to prepare a fresh report on 192006 SCC (Crl.) 401 40 CC 14/2013, ACB COURT/VSP 17.9.2011 with antedate as 16.9.2011 without correct the date on Ex.P4 from 17.9.2011 to 16.9.2011. Moreover, the verification of genuineness of report and antecedents of suspector employees are made prior to registration of crime. Crime is registered on 17.9.2011 at 2.30 p.m., Even assume that Ex.P4 report was handed over by Pw1 to Pw8 on 17.9.2011 at 11.00 a.m., still sometime available in the hands of Pw8 to get verify the genuineness of contents of report and antecedents of suspector employees.

88. Ld.Advocate for AO1 relied on decision in between P.Sirajuddien Vs. State of

Madras 20 wherein Hon'ble Apex Court held that, “Before a public servant, whatever be his status, is publicly charged with acts of dishonestly which amounts to serious misdemeanor or misconduct opf the type alleged in this case and a first information is lodged against him there must be some suitable preliminary enqury into the allegations by a responsible officer. The lodging of such report against a person specifically one who like appellant occupied the top position in a department, even if baseless would do in calculated harm not only to the officer in particular but to the department he belongs to in general”.

89.In view of the proportion of law in the referred decision, it is made clear that whenever any report received against a public servant, the Station House Officer has to make preliminary enquiry into the allegations of the report and also enquire reputation of suspector employee and then registered after satisfy with the genuineness of contents of report and bad reputation of suspector employee and that after obtain permission from competent authority. In the case on hand, Pw8, the then DSP, ACB, Visakhapatnam stated that he got verified the genuineness of contents of Ex.P4 and antecedents of suspector employees through inspector by name Nageswara Rao. The said Nageswara

Rao, Inspector, ACB, Visakhapatnam is also examined as Pw9. He supported the same.

No doubt, there is no endorsement to that effect on Ex.P4. For which, Pw8 gave an explanation that he gave oral instructions to Inspector Nageswara Rao for verification and accordingly he verified and handed over Ex.P4 report to him without any endorsement made by him on it. Pw8 further stated that during that period, there is no practice of make endorsements on the report itself regard entrustment of verification or verification of genuineness of the report or reputation of suspector employees. Simply because Ex.P4 report do not contain any such endorsement, the evidence of Pws.8 and 9, investigating officers, cannot be doubted. This Court already stated supra that there is no evidence on 20AIR 1971 SC 520 41 CC 14/2013, ACB COURT/VSP record by Accused officers that Pw8 and Pw9 have any grouse or enmity against Accused

Officers. In fact verification is only a precaution and it will not change the situation of the case after full fledged trial. Thereby AO1 did not gain any benefit by relying on the aforesaid decision to overcome from the charges framed in this case.

90. Accused officers failed to rebut the presumption u/s.20 of PC Act. Ld.Spl.PP for ACB relied on a decision in between M.Narasinga Rao vs. State of A.P.,21 wherein it was held that legal presumption is not rebutted it tantamount to proof. Apart from the above presumption it is clear from the evidence of Pw1 which is corroborated by Pws.2, 3, 6, to 8 and Exs.P4, P24 and P34 and Mos.1 to 10 that AO1 and AO2 further demanded and accepted bribe amount of Rs.15,000/- from Pw1 to do official favour. In so far as offence u/s.7 of PC Act is concerned, prosecution has to establish by cogent evidence demand and acceptance of bribe by accused officers to do official favour. The settled position of law is that the demand of illegal gratification is a sine qua non to constitute the offence u/s.7 of PC Act. The same is established by prosecution in the present case.

91. In order to prove a charge u/s.13(2) read with section 13(1)(d) of PC Act, prosecution must be prove that accused officers 1 and 2 by corrupt or illegal means and obtained Rs.15,000/- marked as MO7 from Pw1. Prosecution established all the above ingredients consequently proved the guilt of accused officers 1 and 2 for the offence punishable u/s.13(1)(d) read with section 13(2) of PC Act beyond all reasonable doubts.

92. Case property vide Mos.1 to 6 and 8 to 10 vide item No.44/2013 of this

Court are ordered to be destroyed, on expiry of appeal time, whereas MO.7 tainted amount of Rs.15,000/- vide item No.41/2011 of this Court is ordered to be returned to

DSP,ACB, Visakhapatnam with a direction to deposit the said amount to the concerned head of account of Government, on expiry of appeal time, as the amount of Rs.15,000/- is reimbursed to Pw1 by investigating officer subsequent to trap from concerned head of account of Government.

93.In the result, Accused Officers 1 and 2 are found guilt for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of

Corruption Act, 1988 and consequently AO1 and AO2 are convicted under Sec.248(2)

21) 2001 CRL.J.515 42 CC 14/2013, ACB COURT/VSP

Cr.P.C. for both the counts above.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 27th day of July, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

94. When Accused Officers 1 and 2 are questioned about quantum of sentence,

AO1 stated that his health is not good and he has to look after his wife and they have no male issues and prays mercy. AO2 stated that his health is not good and he has to maintain on the pension amount as he was retired from service and prays mercy.

95.Heard both sides. On considering the statements of Accused Officers 1 and 2 for quantum of sentence mentioned above, in the light of facts and circumstances of the case on hand and gravity of offence, this Court feel it is not a fit case to invoke the provisions of PO Act. Accused officers 1 and 2 are sentenced to undergo R.I. for a period of two years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.7 of P.C.Act, 1988 and further sentenced to undergo

R.I. for a period of two years and to pay fine of Rs.1000/- (Rupees one thousand only)

IDSI 60 days for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of

P.C.Act 1988 by each Accused Officer.

96.The substantive sentence of imprisonment awarded to each accused officer for both counts above shall run concurrently.

97.Total fine comes to Rs.4,000/-.

98.The detention period of AO1 from 17.9.2011 to 24.9.2011 (both inclusive days) and the detention period of AO2 from 17.9.2011 to 24.9.2011 (both inclusive days) are ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to them.

99. Case property ie., Mos.1 to 6 and 8 to 10 vide item No.44/2013 of this

Court are ordered to be destroyed, on expiry of appeal time. MO.7 cash of

Rs.15,000/- vide item No.41/2011 of this Court is ordered to be returned to DSP,ACB,

Visakhapatnam with a direction to him to deposit the said amount to the concerned head of account of Government, on expiry of appeal time, as the investigating officer returned

Rs.15,000/- to defacto complainant ie., Pw1 subsequent to successful trap during 43 CC 14/2013, ACB COURT/VSP investigation from Government funds.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 27th day of July, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

For Prosecution:

PW1 / 29-2-2016: M. Ramachandra Rao (Defacto complainant ) PW2 / 29-2-2016: M. Jayasree (wife of PW1) PW3 / 1-3-2016 : U. Sartbabu (the then SFO, GVMC, Visakhapatnam) PW4/ 1-3-2016: J. Suryanarayana PW5/ 1-3-2016: P. Varaprasad PW6/ 2-3-2016: B. Maheswar (Mediator of Pre and post trap proceedings ) PW7/ 21-3-2016: B.V.S. Appala Raju PW8/ 21-3-2016: K.V. Ramakrishna Prasad (the then DySP, ACB-Trap lying officer) PW9/ 21-3-2016: B.V.S. Nageswar (the then Inspector ACB, VSP-Investigating officer) PW10/16-5-2016: V. Siva Prasad (the then section officer in Home department Secretariat,Hyderabad)

For Defence: Nil

EXHIBITS MARKED

For Prosecution:

Ex P1/5-8-2011: Copy of Self appraisal-cum-inspection report of shop of Pw2. Ex P2/5-9-2011: Copy of notice to Pw2 contain endorsement of PW1 Ex P3/23-5-2011: Application of PW 2 for NOC. Ex P4/16-9-2011: Report lodged by PW1 before DySP, ACB, VSP. Ex P5/28-9-2011: Portion of signatures on statement of PW1 recorded u/s 164 of Cr.P.C., Ex P6/16-5-2010: Circular Memo. Ex P7/21-10-2010 : Copy of notice to PW2. Ex P8/: Copy of license form in the names of M/s.Ravi Tej Traders Proprietor Jayasree. Ex P9/17-6-2011: Self appraisal-cum-inspection report regard wholesale fire storage premises of Pw2. Ex P10/3-6-2011: Proceedings of CP, VSP to RFO, GVMC, Visakhapatnam. Ex P11/: Relevant page of Attendance register for the month of September, 2011. Ex P12/ 17-6-2011: Inspection report by PW3 and DFO to RFO, GVMC, VSP. Ex P13/20-6-2011 : Note file including endorsements. Ex P14/ 23-7-2011: Letter by Commissioner, GVMC to CP, Visakhapatnam.

44 CC 14/2013, ACB COURT/VSP

Ex P15/25-7-2011 : Relevant entry in outward register. Ex P16/: Relevant portion in the statement of Pw 3 u/s 161 of CrPC. Ex P17/ 5-9-2011 : Copy of notice with acknowledgment of PW4.

Ex P18/ 21-7-2011: Copy of self appraisal-cum-inspection report of shop of Pw4 Ex P19/: Relevant portion in the statement of Pw 4 u/s 161 of CrPC Ex P20/23-7-2011 : Copy of self appraisal-cum-inspection report of shop of Pw5 Ex P21/5-9-2011: Copy of notice with endorsement of Pw 5. Ex P22/: Relevant portion in statement of Pw5 u/s 161 of CrPC. Ex P23/17-9-2011 : Copy of FIR and report with attestation of mediators. Ex P24/17-9-2011 : Pre- Trap proceedings/Mediators report-I Ex P25/17-9-2011 : Rough Sketch of scene. Ex P26/: Made up file consists 67 sheets. Ex P 27/: Attendance Register of Office of RFO. Ex P28/: Made up file consists 12 sheets pertaining to NOC applied by PW2. Ex P 29/: Made up file consists 87 sheets. Ex P30/: Inward register in the office of RFO. Ex P 31: Outward register in the office of RFO. Ex P32/: Personal dairy of AO1 of the year, 2011. Ex P33/ : Personal diary of AO2 of the year 2011. Ex P34/17-9-2011 : Post trap proceedings/Mediator report -II. Ex P35/ 21-7-2011: Photostat copy of Self appraisal-cum-inspection report of shop of Pw7. Ex P36/5-9-2011: Notice contains endorsement of Pw7. Ex P37/17-9-2011 : Original FIR in Crime No. 18/RCT-VSP/2011. Ex P38/1-10-2011 : Explanation submitted by AO1. Ex P39/20-8-2013 : Sanction order vide G.O.Ms.No.198(Home SC-B), Department.

For Defence: Ex D1/28-9-2011: Relevant Portion of statement of Pw1 recorded u/s 164 of Cr.PC.

MATERIAL OBJECTS MARKED

For prosecution: MO1: Sealed cover containing sample of sodium carbonate powder used in pre trap proceedings. MO2: Sealed cover containing sample of Phenolphthalein powder used in pre trap proceedings. MO3: Sealed bottle containing colourless resultant solution collected after testing right hand fingers of AO1. MO4: Sealed bottle containing colourless resultant solution collected after testing left hand fingers of AO1 (now empty due to leakage). MO5: Sealed bottle containing light pink colour resultant solution collected after testing the right hand fingers of AO2.

45 CC 14/2013, ACB COURT/VSP

MO6: Sealed bottle containing Pink colour resultant solution collected after testing the left hand fingers of AO2. MO7: Tainted amount of Rs 15,000/-.

MO8: sealed bottle containing Pink colour resultant solution collected after testing the inner linings of left side pant pocket of AO2. MO9: Pant of AO2. MO10 : Sealed cover containing sample of sodium carbonate powder used in post trap proceedings. For Defence: Nil.

III ADJ-CUM-SPL.JUDGE

FOR SPE & ACB/VSP Copies to:

1. The Accused Officers 1 and 2.

2. The Deputy Superintendent of Police, ACB, Visakhapatnam.

3. The Head of the Department.

46 CC 14/2013, ACB COURT/VSP

JUDGMENT AND CALENDER

CALENDER CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-III ADDL.

DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM

C.C.14/2013

(Cr.No.18/RCT-ACB-VSP/2011) D A T E O F:

REPORT OF COMPLAINANT : 16.09.2011 APPREHENSION OF ACCUSED : 16.12.2013 RELEASE ON BAIL : 24.09.2011 COMMENCEMENT OF TRIAL : 29.02.2016 CLOSE OF TRIAL : 16.05.2016 SENTENCE OR ORDER : 27.07.2016

EXPLANATION FOR DELAY AND REMARKS:-

Accused Officers 1 and 2 appeared and received copies of documents. Thereafter charges for the offence under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act against Accused Officers 1 and 2 framed on 16.10.2015. Pws.1 to 10 are examined and Exs.P1 to P39, besides MOs.1 to 10 are marked. Then the case is posted for defence evidence. No defence evidence is reported by both Accused. Ex.D1 is marked during cross-examination of Pw1. Later Accused Officers 1 and 2 are examined under section 313 Cr.P.C., Written arguments of prosecution and AO2 are filed. Judgment is pronounced on 27.07.2016 and the Accused Officers 1 and 2 are found guilt for the offence punishable under sections 7 and 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.

JUDGMENT IN CALENDER CASE NO.14/2013 ON THE FILE OF III ADDITIONAL DISTRICT

JUDGE-CUM-SPECIAL JUDGE FOR SPE AND ACB CASES,VISAKHAPATNAM

COMPLAINANT

State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam.

NAME OF THE ACCUSED:

1. Sri Nakirikanti Mohana Rao, S/o late Veerabhadram, 57 years, Regional Fire Officer, GVMC, Visakhapatnam.

2. Sri Budumuru Ammi Naidu, S/o late Jagannadham Naidu, 56 years, District Fire Officer, GVMC, Visakhapatnam.

OFFENCE : U/secs.7 and 13(2) r/w sec.13(1)(d) of Prevention of Corruption Act, 1988.

FINDING OF THE COURT: AOS.1 AND 2 ARE FOUND GUILT U/secs.7 and 13(1)(d) r/w sec.13(2) of Prevention of Corruption Act, 1988.

S E N T E N C E: Accused Officers 1 and 2 are FOUND GUILTY.

In the result, Accused Officers 1 and 2 are found guilt for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and consequently AO1 and AO2 are convicted under Sec.248(2) Cr.P.C. for both the 47 CC 14/2013, ACB COURT/VSP counts above. When Accused Officers 1 and 2 are questioned about quantum of sentence, AO1 stated that his health is not good and he has to look after his wife and they have no male issues and prays mercy. AO2 stated that his health is not good and he has to maintain on the pension amount as he was retired from service and prays mercy. Heard both sides. On considering the statements of Accused Officers 1 and 2 for quantum of sentence mentioned above, in the light of facts and circumstances of the case on hand and gravity of offence, this Court feel it is not a fit case to invoke the provisions of PO Act. Accused officers 1 and 2 are sentenced to undergo R.I. for a period of two years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.7 of P.C.Act, 1988 and further sentenced to undergo R.I. for a period of two years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of P.C.Act 1988 by each Accused Officer. The substantive sentence of imprisonment awarded to each accused officer for both counts above shall run concurrently. Total fine comes to Rs.4,000/-. The detention period of AO1 from 17.9.2011 to 24.9.2011 (both inclusive days) and the detention period of AO2 from 17.9.2011 to 24.9.2011 (both inclusive days) are ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to them. Case property ie., Mos.1 to 6 and 8 to 10 vide item No.44/2013 of this

Court are ordered to be destroyed, on expiry of appeal time. MO.7 cash of

Rs.15,000/- vide item No.41/2011 of this Court is ordered to be returned to DSP,ACB, Visakhapatnam with a direction to him to deposit the said amount to the concerned head of account of Government, on expiry of appeal time, as the investigating officer returned Rs.15,000/- to defacto complainant ie., Pw1 subsequent to successful trap during investigation from Government funds.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

1 CC 28/2011, ACB COURT/VSP

IN THE COURT OF SPECIAL JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

Present :- Sri K.Surya Rao Spl. Judge for SPE and ACB Cases, Cum-III Addl. District Judge, Visakhapatnam

Wednesday, this the 4th day of May, 2016

C.C.28/2011

(Cr.No.15/RCT-ACB/VZM/2010) Between: State represented by the Inspector of Police, Anti-Corruption Bureau, Vizianagaram Range, Vizianagaram. ….Complainant And: Sri Ravipalli Sudhakara Rao, S/o Late Raminaidu, 50 years, VRO, Bondapalli, Cluster-II, O/o Tahsildar, Bondapalli Mandal, Vizianagaram District.

...Accused Officer

This case coming on 16.03.2016, 26.04.2016 and on 29.04.2016 for final hearing before me in the presence of Special Public Prosecutor (Sri B.V.A.Narasimha Murthy) for Complainant and Sri N.Srinivasa Rao, Ld. Advocate for Accused Officer and having stood over the matter for consideration till this day, this Court doth the following:

JUDGMENT

1. State represented by Inspector of Police, Anti-Corruption Bureau,

Vizianagaram filed charge sheet against Accused Officer (hereinafter referred as 'AO') in

Crime NO.15/RCT-ACB/VZM/2010 for the offence punishable under sections 7, and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.

2.The case of the prosecution in brief as per charge sheet is that one Dola

Narayana Rao S/o Late Chinnayya ie., father of defacto complainant submitted an application to the Tahsildar, Bondapalli on 30.8.2010 for mutation of his name in the revenue records and that the Tahsildar endorsed the application on the same day and forwarded the same to Mandal Revenue Inspector, Bondapalli and asked him to meet him and accordingly, defacto complainant by name Dola Rajendra Prasad and his father Dola

Narayana Rao met Mandal Revenue Inspector and that Mandal Revenue Inspector informed that the application was sent to Sudhakara Rao, VRO ie., AO of this case for verification and the enquiry report was pending with the VRO and that defacto complainant and his father moves round the VRO for his report and that VRO ie., AO demanded an amount of Rs.2000/- for doing official favour ie., for mutation of his father's name in the revenue records and that on 6.9.2010, the defacto complainant met

AO and handed over the original pattadar passbook, title deed, and death certificate of his grandfather, photos of his father and requested the AO for preparing the pattadar 2 CC 28/2011, ACB COURT/VSP passbook and title deed in favour of his father's name and that defacto complainant expressed his inability to give that much of amount and that on bargain, AO reduced the demanded bribe amount of Rs.2000/- to Rs.1500/- and that defacto complainant reluctantly agreed to pay the demanded bribe amount and approached DSP,ACB,

Vizianagaram on 15.11.2010 at 10.00 a.m., and presented a written report against AO and that DSP ACB, Vizianagaram registered the report of defacto complainant as a case in Cr.No.15/RCT-ACB/VZM/2010 u/s.7 of PC Act on 16.11.2010 after verifying the contents of complaint and that DSP,ACB, Vizianagaram laid trap by secure two independent mediators and that defacto complainant produced proposed bribe amount of

Rs.1500/- and that during the trap on 16.11.2010, AO caught hold red handedly and

DSP,ACB, Vizianagaram seized tainted amount of Rs.1500/- at the instance of AO in the presence of mediators and seized documents and arrested AO at 16.45 hours on 16.11.2010 and produced before court for remand and later on completion of investigation and after obtain permission sanction order from the competent authority vide G.O.Ms.No.1683, dt.3.9.2011, the investigating officer filed charge-sheet against

AO in the court.

3. Cognizance for the offence punishable under sections 7 and 13(2) read with section 13(1) (d) of Prevention of Corruption Act, 1988 against AO is taken by the Court on 4.11.2011 and numbered the case as CC 28/2011. In pursuance of the summons, AO appeared before Court along with advocate and received copies of documents under section 207 Cr.P.C., on 31.1.2012. Later AO is examined under section 239 Cr.P.C., on 5.6.2012. He denied the case of prosecution. Heard both sides. Charges for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of

Corruption Act, 1988 against AO, have been framed, read over and explained in Telugu for which AO pleaded not guilty and claimed to be tried and hence matter posted for trial.

4.During the course of trial on behalf of prosecution, PW1 to PW8 are examined. Ex.P1 to P12 are marked besides Mos.1 to 7. Ex.D1 relevant portion in the statement of PW4 u/s.161 Cr.P.C., is marked. On completion of prosecution evidence, heard both sides on the questionnaire of examination under section 313 Cr.P.C., and then

AO is examined u/s.313 Cr.P.C., on 16.2.2016 enable him to explain on the incriminating material found against him in the evidence of prosecution witnesses and that he denied 3 CC 28/2011, ACB COURT/VSP the same and AO filed written statement. Later AO got examined the present Tahsildar of

Bondapalli by name B.Neelakanta Rao as DW1 and got marked Ex.X1 to X5. Detailed oral arguments on both sides heard. Written arguments of prosecution filed.

5.The points for determination in this case are;

1) Whether the AO is public servant within the meaning of section 2(c) of Prevention of Corruption Act, 1988 at relevant point of time of this case?

2) Whether sanction for prosecution of AO is valid or not?

3) Whether prosecution has proved the ingredients to constitute an offence punishable under section 7 of Prevention of Corruption Act, 1988 against AO beyond all reasonable doubts?

4) Whether prosecution has established the charge against AO for the offence punishable under section 13(1)(d) of Prevention of Corruption Act, 1988 beyond all reasonable doubts and if so AO is liable to punish u/s.13(2) of PC Act?

6. POINT NO.1: In fact AO did not deny his post as VRO working in the office of Tahsildar, Bondapalli at the relevant point of time of this case. The recitals of Ex.P1 sanction order established that AO worked as VRO, Bondapalli as on the date of trap and getting salary from Government treasury. Therefore, for these reasons, AO is public servant within the meaning of section 2(c) of PC Act at relevant point of time.

7. POINT NO.2: Prosecution relied on Ex.P9 sanction order besides evidence of PW5. As per section 19 of PC Act, it is the duty of the prosecution to place material

before the competent authority to issue sanction order against public servant. In this

case, prosecution has examined the concerned Section officer as PW5 to prove the prosecution sanction order which is marked as Ex.P9. The defence on Ex.P9 raised by AO in this case is that the said sanction order is not valid one as the sanctioning authority did not apply its mind before accord sanction.

8. Before take up the evidence of PW5 coupled with Ex.P9, it is better to consider the object and concept of the sanction to adjudicate the point on hand just and properly. The object underlying the said provision is to save the public servant from the harassment of frivolous or unsubstantiated allegations. This provision should not be an umbrella for protection of corrupt officers but a shield against reckless or malevolent harassment of official whose upright discharge of duties may provoke unpleasantness and hostility. The provision for sanction is like the keystone in the arch of enactment.

Remove the keystone of sanction and the arch crumbles. So grant of proper sanction by 4 CC 28/2011, ACB COURT/VSP competent authority is a sine qua non for taking cognizance of the offence. The question of granting sanction is procedural in nature and does not involve any principles of substantive law and, therefore, error or procedure would always be subjected to overriding principles of failure of justice. The combined reading of sub sections (3) and (4) of Section 19 of the Act makes it clear that section 19 of the Act has an overriding effect on the provisions of the Criminal Procedure Code. Sub sections (3) and (4) of

Section 19 are introduced to the old provision under section 6 of PC Act 1947 by way of amendment to the Act by introducing new Act i.e., PC Act 1988. The effect of sub- sections (3) and (4) of Section 19 of the Act is of considerable significance . In sub- section (3), the stress is on “failure of justice” and that to “in the opinion of the Court”.

In sub-section (4), the stress is on raising the plea to the appropriate time. Significantly, the “failure of justice” is retable to error, omission or irregularity in the sanction.

Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in “failure of justice” or has been occasioned thereby, Section 19(1) is a matter of procedure and does not go to the root of jurisdiction. The question of sanction involves two aspects i.e, one relating to alleged lack of jurisdiction and the other relating to prejudice. Since the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration.

9. In fact for a sanction order no specific type, design, form or particular words have been prescribed. Therefore, in accordance with the common sense and the requirements of justice, all that the order of sanction must show is that all the relevant materials were placed before the sanctioning authority and the said authority considered those materials and the order sanctioning the prosecution resulted therefrom and it should be clear from the order that the sanctioning authority considered the materials 5 CC 28/2011, ACB COURT/VSP

before it and after consideration of all the circumstances of the case sanctioned the

prosecution. For the sanction to be valid it must be proved that the sanction was given in respect of the facts constituting offence charged. Therefore, a sanction to prosecute a particular person for an offence implies first a full knowledge of the facts upon which it is sought to prosecute him and secondly a deliberate decision of the sanctioning authority that he may be prosecuted. These two things are necessary to be proved before it can be said that a particular order amounts to sanction for prosecution. The facts constituting the offence should appear on the face of the sanction and where the facts constituting the offence do not appear on the face of the order of sanction for prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Therefore, act of giving sanction is not an act mechanical or stereotype act. Grant of sanction is an administrative function. It is the functions of the State Government and statutory in nature and not constitutional function. Therefore, it is not an idle formality. It is a statutory mandatory requirement.

10. In the case on hand it is not the defence of AO that the authority who issued

Ex.P9 GO has no jurisdiction to accord prosecution order against AO. The only defence raised by AO in attacking Ex.P9 prosecution sanction order is that the sanction authority had not applied its mind before grant prosecution sanction against AO.

11. Undoubtedly, the burden of proof that the requisite sanction had been obtained rests upon the prosecution such burden includes proof that the sanctioning authority had given the sanction and reference to the facts on which the proposed prosecution was to be based. It is settled law that prosecution has to prove the signature on the sanction order and then the said sanction order was accorded by sanctioning authority after apply its mind to the facts of the case (State of Rajasthan vs.

Tarachand 1 ).

12. To discharge the burden lies on the shoulders of the prosecution, prosecution got examined the concerned Section Officer as PW5 and through him, the sanction order accorded against AO is marked as Ex.P9 and full opportunity is given to

AO to cross examine PW5 regard accord sanction. PW5 stated that he worked under

Aushotosh Mishra, Principal Secretary in Revenue Department, Secretariat, Hyderabad 1 AIR 1973 SC 2131=1972 Cr.L.J.1396 6 CC 28/2011, ACB COURT/VSP and he is acquainted with his signature and that the said Aushotosh Mishra issued sanction order for prosecution of AO vide Ex.P9 ie., G.O.Ms.No.1683 Revenue (Vigilance-

VII(2)) Department dt.3.9.2011 He further stated that their department received preliminary report along with FIR, mediators report I & II from the Deputy

Superintendent of Police, Anti Corruption of Bureau, Visakhapatnam on 29.11.2010.

Later their department received draft final report on 3.6.2011 along with statements of witnesses and model sanction and that after putting up the file before Aushotosh Mishra, the then Principal Secretary to Government, he issued sanction order vide Ex.P9. During cross-examination of PW5, he stated that he was not working in the department as on the date of issuance of Ex.P9. He stated that the sanction authority applied its mind

before issuing sanction but he was not present by then. He denied the suggestion that

sanction authority did not apply its mind before according sanction and that there was no basis to accord sanction. Simply on the ground that ACB officials sent model sanction order along with draft final report and statements of witnesses etc., it does not mean that sanction authority had simply copy of model sanction order and issued sanction order vide Ex.P9 without apply its mind. On plain reading of contents of Ex.P9 sanction order, it is clear that it is a speaking order which contains full details on hand against AO and further contains that after fully and carefully examining the material namely, copy of

FIR, copies of statement of witnesses, copies of mediators report I and II and other material placed before it in regard to the said allegations and having regard to the facts and circumstances of the case considered that AO should be prosecuted in a court of law for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of PC

Act 1988.

13. In fact sanction order is a public document. According of sanction is an official act of the authority who accords sanction and the Court may presume the fact that judicial and official acts have been regularly performed in terms of clause (e) of

Section 114 of the Evidence Act. The court must also presume until the contrary is established that such authority will act fairly and objectively and will accord sanction only where he is satisfied that the charges against the public servant requires to be enquired into by a Court. The authority is presumed to, and expected to, act consistent with public interest and the interest of law-both of which demand that while a public servant be not subjected to harassment, genuine charges and allegations should be allowed to be 7 CC 28/2011, ACB COURT/VSP examined by the Courts. Both the considerations aforesaid should be present in the mind of the authority while deciding the question of grant of previous sanction required by

Section 19 of the Act. The same is also fulfilled or satisfied on considering the contents of speaking order of sanction order covered by Ex.P9 coupled with the evidence of PW5.

Since sanction order is a public document within the meaning of section 74 of Evidence

Act and it may be proved on its production. This should be done in two ways (i) by producing the original sanction which itself contains the facts constituting the offence and the ground of satisfaction; and (ii) by adducing evidence aliunde to show the facts placed

before the sanctioning authority and the satisfaction arrived at by it. At this juncture, the

decision of Apex Court on land in the case in between State vs. K.Narasimhachary2 (Case from Andhra Pradesh), is important for consideration, wherein it is held that, “the order of sanction for prosecution of public servant was issued under Section 19 of

Prevention of Corruption Act (1988) and that the Secretary to State Government merely authenticated the said order of sanction, which was issued in the name of the Governor of State and that the order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of Section 19 of the Act and that the order of sanction was authenticated and that said order of sanction was an executive action of a State having been issued in the name of the Governor and that was authenticated in the manner specified in the Rules of Executive Business and that the authenticity of the said order has not been questioned and that it was therefore, a public document within the meaning of Section 74 of the Evidence Act and that a public document can be proved in terms of Sections 76 to 78 of the Evidence Act and that a public document can be proved otherwise also”.

14. Ex.P9 sanction order is a public document being filing under section 74 of

Indian Evidence Act and as such it can be proved either filing of the original or its certified copy in accordance with the provisions of section 77 of Indian Evidence Act.

Ex.P9 sanction order was signed by Principal Secretary to Government of the concerned

Department and thus, under law, by virtue of section 56 and 57 (7) of Indian Evidence

Act, the Court shall be taken judicial notice of the accession to office, name, titles, functions, and signatures of the persons filing for the time being any public office and under section 79 of the Indian Evidence Act, the court shall presume the genuineness of 2 2006 Crl.L.J.518 8 CC 28/2011, ACB COURT/VSP every document which is by law declared to be admissible as evidence of fact. In fact the genuineness of the sanction order covered by Ex.P9 is not disputed by AO in the case on hand. Therefore, the proposition of law in the decision of K.Narasimhamurthy's case (supra), is squarely applicable to the case on hand.

15.As this Court already discussed the evidence of PW5 and contents of Ex.P9 which is a speaking one and held in clear terms supra that prosecution not only by rely on presumption available under Indian Evidence Act regard public document which was not rebutted by AO but also by place oral evidence by examining the concerned Section

Officer-PW5 through whom, the sanction order ie., Ex.P9 is marked. Ex.P9 expressly is a speaking order. Thereby prosecution discharged burden of proof lies on its shoulders and also established that sanction order covered by Ex.P9 is in accordance with law and valid.

Thereby it is a valid one.

16. POINT NOS.3 AND 4: It is well settled law that prosecution has to prove the charges against AO for the offence punishable under sections 7 and 13 (1)(d) read with section 13(2) of PC Act beyond all reasonable doubt like any other criminal offence and that the AO should be considered to be innocent till it is established otherwise by proper proof and demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. The golden principle which runs through the web of administration of Justice in criminal cases considered by Hon'ble

Supreme Court of India in catena of decisions, is that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held that PC Act 1988 is a special Act enacted to consolidate and amend the law relating to Prevention of Corruption and for matters connected there with. The Act is intended to be self contend enactment.

17. The essential ingredients of Section 7 of the Act are, the person expecting should be a public servant and should accept gratification for himself or another and the gratification should be as a motive or reward for doing or forbearing to do any official act, in the exercise of his official duties.

18.Likewise, under section 13(1) of the Act, a public servant should have used by corrupt or illegal means or otherwise abusing his position as such a public servant and that he should have obtained a valuable thing or pecuniary advantage for himself or for 9 CC 28/2011, ACB COURT/VSP any other person.

For better understanding, the essential ingredients of section 7 of the PC Act point wise are as follows:

(i) that the Accused Officer was a public servant

(ii) that he must be shown to have obtained from any person any gratification or other than legal remuneration; and

(iii) that the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official function, favour or disfavour to any person.

In so far as Section 13(1)(d) of Act is concerned, the essential ingredients are,

(i) that AO should have been a public servant;

(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant; and

(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.

19. To bring home guilty of charges leveled against AO, prosecution has to establish that there must be an official favour pending in the hands of AO to defacto complainant or to his father and further to prove demand and acceptance of bribe amount by AO from defacto complainant as well recovery of marked currency from AO beyond all reasonable doubts.

20.In State of Kerala Vs. C.P.Rao3, the Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. In a recent enunciation by the Apex Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in

B.Jayaraj vs.State of A.P.,4 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable 3 (2011) 6 CC 450 4 (2014) 13 SCC 55=(2014) 5 SCC (Cri) 543 10 CC 28/2011, ACB COURT/VSP thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the

Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder. The very same principle is laid down by Apex Court in the recent decision in a case in between

P.Satyanarayana Murthy vs District Inspector of Police, State of A.P., and another5

21. Court has to consider whether any official favour to PW1 or to his father who is examined as PW2 was pending within the hands of AO being VRO of Bondapalli in the office of Tahsildar, Bondapalli Mandalam of Vizianagaram District as on the date of trap or not. The version of Pws.1 and 2 is that PW1 is the son of PW2 and both of them went to

MRO office of Bondapalli on 30.8.2010 and PW2 presented Ex.P1 application by enclose pattadar passbook copies in the name of grandfather of PW1 (father of PW2) and death certificate of grandfather of PW1 and that the Tahsildar referred the matter to Revenue

Inspector and asked them to approach the revenue Inspector and that when they approached the revenue inspector he informed them that the representation of PW2 was sent to VRO Bondapalli ie., AO of this case and that they approached AO on 6-9-2010 at the office at Bondapalli and enquired about the mutation of the name of PW2 and pass books and that AO in turn demanded them for bribe of Rs.2000/- to process issuance of 5 (2016) 1 Supreme Court Cases (Cri) 11 11 CC 28/2011, ACB COURT/VSP passbooks in the name of PW2 and they expressed their inability to pay the said amount and then the A.O reduced the bribe amount to Rs.1500/- and subsequently they met several times for about one and half month and requesting to complete their work but in vain and that A.O persisted with his demand to pay bribe of Rs1500/- and that they had no intention to pay such bribe and approached the ACB officials and make the criminal law into motion by present a written report of PW1 on 15.11.2010 and that after registration of crime, ACB officials laid trap on 16.11.2010 and caught hold AO red handedly at his house and recovered the tainted amount of Rs.1500/- at his instance from table drawer in the presence of mediators. Pws.1 and 2 supported the case of prosecution. Prosecution got examined the Mandal Revenue Inspector in the office of

Tahsildar, Bondapalli as PW3. The evidence of PW3 is that one A.Raghuramaiah, the then

Mandal Revenue Officer is made an endorsement on Ex.P1 on 30-08-2010 directing him for enquiry and report and that PW3 endorsed it to VRO, Bondapalli(AO) and that Ex.P1 was sent to AO on 1-9-2010 and that AO has to make an enquiry and to submit his report to PW3 who in turn verified the same and submit it to Tahsildar for necessary changes of issuing pattadar passbooks and that AO being VRO, Bondapalli did not submit his report. Later he came to know that the AO was trapped by ACB officials on 16-11- 2010 in connection with Ex.P1 work.

22.During cross-examination, PW3 stated that he endorsed on Ex.P1 as VRO,

Bondapalli but did not mention the name of AO on Ex.P1 and that he as per their records, there were two VROs to Bondapalli village and they were one Joga Rao and AO of this case and that he did not mention in Ex.P1 as to whether it was referred to which VRO and that the jurisdiction of AO was relating to villages Chandakapeta, Geddapeta and

Gollalapeta and that unless he verified the record, he cannot say as to whether the AO was not relating to Bondapalli village jurisdiction. He denied the suggestion that AO was not VRO of Bondapalli. AO did not place any recorded evidence during his turn that he is not VRO of Bondapalli Village at relevant point of time. AO did not elicit any favourable evidence during cross-examination of PW3, the then Mandal Revenue Inspector,

Bondapali. PW3 specifically denied the suggestion of AO that AO was not VRO at

Bondapalli. AO did not deny the contents of Ex.P9 sanction order. Hence the contents of sanction order covered by Ex.P9 demand to be not disputed. The recitals of Ex.P9 expressly disclose that AO worked as VRO, Bondapalli, Vizianagaram District from 12 CC 28/2011, ACB COURT/VSP 1.8.2009 to 16.11.2010 itself proved that AO worked as VRO, Bondapalli during the said period.

23.Adding to this, trap laying officer, ie., the then DSP, ACB, Vizianagaram, who is examined as PW7 in this case, stated that during post trap proceedings, he seized

Ex.P6 made up file produced by AO and it containing 8 sheets including Ex.P1. After getting it xeroxed, the original was handed over to the Tahsildar office. Ex.P6 made up file contains copies of representation of PW2 ie., father of PW1 to Tahsildar, Bondapalli for mutation of name of PW2 in the place of his father in revenue records and for issuance of pattadar passbooks in the name of PW2 for Ac.0.57 cents such as Ac.0.32 cents in

S.NO.51/3 and Ac.0.25 cents in S.No.51/4. Copy of death certificate of Dola Chinnodu alias Tata ie., grandfather of PW1 and father of PW2 showing the date of death of Dola

Chinnodu as 23.10.2000 and copies of title deed and pattadar passbook of grandfather of

PW1 containing photos of grandfather of PW1 ie., Dola Chinnodu alias Tata (Chinnayya)

S/o Sanyasi of Bondapalli (in the copy of pattadar passbook, the name of Dola Narayana

S/o Chinnodu is mentioned above the name of Dola Chinnodu alias Tata (Chinnayya) S/o

Sanyasi. PW7 seized Ex.P6 made up file containing the application of PW2 and copies of death certificate and title deed and pattadar passbook of grandfather of PW1 on being produced by AO during post trap proceedings in the presence of mediators including

PW4. If really, the file of PW2 for processing mutation of name of PW2 and for issuance of pattadar passbook and title deed book in his name, was not pending in the hands of

AO as on the date of trap, the said file could not be possessed by AO.

24. No doubt, AO puts a suggestion during cross-examination of PW3, the then

Mandal Revenue Inspector, Bondapalli that, “AO was not VRO of Bondapalli village” (the said suggestion is denied by PW3). But AO did not put such suggestion either to PW1 or

PW2 or PW4 or PW7. On the other hand, the suggestions given by AO during cross- examination of Pws.1 and 2 are important for consideration. The suggestions made by

AO during cross-examination of PW1 are as follows, which are denied by PW1.

“It is not true to suggest that we pressurized AO to issue passbooks for the above said survey number and that we will manage the revenue higher officials and also threatened him to file SC and ST case against him” “It is not true to suggest that as the AO is not amenable to us we managed ACB and filed false case”. “It is not true to suggest that AO also refused to issue passbooks on the ground 13 CC 28/2011, ACB COURT/VSP that our old passbooks did not contain 16 digit unique ID number”. The suggestion of AO puts to PW2 is as follows, PW2 denied the same. “It is not true to suggest that there was delay as the AO was busy in work relating to Unique Identification Numbers and that it was not intentional”.

25.The aforesaid mentioned suggestions put by AO during cross-examination of

Pws.1 and 2 show that the delay regard file of Pws.1 and 2 ie., regard Ex.P1 occurred as

AO was busy in work relating to Unique Identification Numbers and that it was not his intentional. As per theory of AO one more reason for not refused to issue passbooks in the name of PW2 is that old pattadar passbooks of Pws.1 and 2 did not contains 16 digit unique ID number. In fact PW3, the then Mandal Revenue Officer, Bondapalli stated that the Unique Number on the passbook will be given only after mutation. It is not the case of AO that 16 digit Unique ID numbers were allotted to passbook and title deed book in good olden days. Therefore, AO puts a suggestion during cross-examination of PW3 by showing that he is not VRO, Bondapalli Village with halfheartedness. If really, AO was not

VRO, Bondapalli Village at relevant point of time, AO should have specifically puts such suggestion during cross-examination of PWs.1 and 2 but he did not do so. He should not handled the application of PW2 ie., Ex.P1 and should not keep the application of PW2 with him as on the date of trap if he is not concerned VRO to deal with the said application.

26. In the case on hand, the attack of AO on Ex.P1 is that Pws.1 and 2 with malafide intention applied for mutation of name of PW2 in respect of Ac.0.57 cents of land under two survey numbers including the land acquisition in S.No.51/4 as “Gayalu” ie., for land of Government and that without disclose the details of other legal heirs of late Dola Chinnodu alias Tata with an intention to grab the entire property of Ac.0.32 cents in S.No.51/3 and Ac.0.25 cents in S.No.51/4. Whether the part of the claim of PW2 in Ex.P1 for mutation and issuance of pattadar passbooks in his name, is valid or malafide one is not the question to be determined in trap case by Spl. Judge for ACB cases. The fact remains that PW2 submitted Ex.P1 application along with enclosures to

Tahsildar, Bondapalli. Evidence of PW3 further discloses that the then Tahsildar,

Bondapalli made an endorsement on 30.8.2010 to him (MRI) for enquiry and report and that he in turn endorsed on Ex.P1 to VRO, Bondapalli as “to verify” ie., to enquire and verify and to submit his report to him and Ex.P1 was sent to AO on 1.9.2010 and that he 14 CC 28/2011, ACB COURT/VSP did not receive any report from AO. Therefore, the said file is held up in the hands of AO being VRO of Bondapalli. No doubt, VRO has no right to issue pattadar passbook or title deed book by mutate the name in revenue records but undoubtedly his job is to enquire the application for mutation of names and to verify with revenue records and as to submit report to Mandal Revenue Inspector who in turn has to verify the said report and has to submit to Tahsildar concerned for issuance of pattadar passbook after order to carry out mutation in revenue records. Therefore, VRO concerned had certainly got role in the process of application for mutation of names and issuance of pattadar passbooks in the case on hand. Application of PW2 for mutation of his name and for issuance of pattadar passbook in his name is held up in the hands of AO being VRO, Bondapalli from 1.9.2010 till the date of trap which was held on 16.11.2010. Therefore, official favour lies in the hands of AO being VRO of Bondapalli Village to do to PW2 for processing his application for mutation of his name and for issuance of pattadar passbooks in his name as on the date of trap.

27. Prosecution relied on the evidence of PW1, PW4 and PW7 to prove recovery of tainted amount of Rs.1500/- from AO during post trap proceedings. PW1 is defacto complainant-cum-victim along with PW2. PW4 is mediator for pre and post trap proceedings as well accompanying mediator. PW7 is trap laying officer, the then DSP,

ACB, Vizianagaram. All of them supported the case of prosecution. During cross- examination of Pws.1, 4 and 7, AO elicited some variations regard vantage position of accompanying mediator.

28.PW1 stated on oath during his evidence that at about 12.00 noon, they left

ACB office, Vizianagaram on 16-11-2010 in two vehicles and reached Bondapalli MRO office by 12.30 hours and vehicles were stopped there and DSP, ACB reiterated the earlier instructions to him and PW4 and that he and PW4 proceeded to MRO office and that PW4 is closely followed him and that he found that AO was not in seat and that he came back and informed the same to DSP and that on the instructions of DSP, he contacted AO on mobile phone and that AO told him that he is at Elementary school at

Bondapalli and asked him to come to the said Elementary school and that from there all of them proceeded to Elementary school and reached at cold storage and Dy.SP stopped the vehicles and asked him to go to the Elementary school and met the A.O. and he reiterated the earlier instructions and that PW4 followed him and that he went to the 15 CC 28/2011, ACB COURT/VSP

Elementary school and met the A.O and then the A.O asked him to come to his house and that AO proceeded to his house on his Hero Honda motor bike and he returned back to the Dy.SP and informed to him about the events happened at Elementary School and then all of them proceeded to the house of A.O and that vehicles were stopped at

Deevanapu street in Bondapalli and that Dy.SP again reiterated the earlier instructions to him and PW4 and then he went to the house of A.O and PW4 followed him and that the house of A.O was situated in the first floor of the building and he met the A.O in the first room and that the A.O asked him as to whether he brought the bribe amount and then he replied positively and then he picked out the tainted amount from his pocket on being asked by A.O to give the same to him and handed over the same to A.O and that the A.O took the amount, counted it and kept it in the table drawer in the second room and then he relayed pre arranged signal to PW4 and that at that time one person came there for the purpose of certificate from A.O. and he was at the entrance and that after his signal within minutes the DySP and other trap party members came there and that DSP asked him to wait in the ground floor for some time.

29. During cross-examination, PW1 stated before ACB Dy.SP that he made telephone to AO on his own mobile on the date of trap. He denied the suggestion that by the time PW1 entered into the house of AO, he was in bathroom after sometime only, he came into his room and that after AO came out, he implored him to do his work in one way or other by catching his hands. He denied one more suggestion that PW1 did not give bribe to AO and AO did not accept any bribe.

30.PW4 accompanying mediator stated on oath that at about 12-00 noon they left the ACB office, Vizianagaram on 16.11.2010 in two vehicles and reached Office of

Tahsildar at Bondapalli at about 12-30pm and Vehicles were stopped at a distance and that as per the instructions of Dy.SP., PW1, himself and all other trap party members got down from the vehicles and Dy.SP., reiterated the earlier instructions to him and PW1 and that PW1 and himself proceeded to the office of Tahsildar, Dy.SP., and other trap party members took vantage position near the office and that himself and PW.1 proceeded to the room of AO and found that AO is not available and that they waited for some time and that after 45 minutes PW1 and himself came to the vantage position of the Dy.SP, and that PW1 informed the Dy.SP that AO was not available and that as per the instructions of the Dy.SP, PW1 made a phone call to AO who called PW1 to come to the 16 CC 28/2011, ACB COURT/VSP

Elementary School at Bondapalli and that all of them started from Tahsildar Office and reached near the Elementary School within 10 minutes and that Dy.S.P. again gave instructions to them and that he followed with PW1 to the Elementary School and took vantage position at a distance and that PW1 had a talk with AO at the Elementary School and returned to him and informed that AO asked him to come to his residence and that

AO proceeded to his house on his motorcycle and that they came back to the position of the Dy.S.P. and PW1 informed the events happened at the Elementary School to the

Dy.S.P., and thereafter Dy.S.P and trap party members started in the vehicles and proceeded to the house of the AO at Divanapu street, Bondapalli and that Dy.S.P stopped the vehicles at Divanapu veedhi junction and that himself and PW1 went to the residential house of AO situated at first floor of the building adjacent to the road and that

Dy.SP and other trap party took vantage position on the side of the road and that when they reached to the first floor of the building, one young person was present at the entrance of the house of the AO and that PW1 saw that PW1 passed the currency notes to AO after some conversation between them and that PW1 came to him and wiped his face with handkerchief and that he came down to the ground floor and relayed the signal to the Dy.S.P. and that immediately Dy.S.P and other trap party members rushed to the first floor and that he followed with the Dy.S.P., and they found one person was standing nearer to PW1 outside the entrance of house of AO and that Dy.S.P. instructed PW1 to wait there and Dy.S.P. entered into the first room of the house of AO and found AO was at the chair in front of the table on hearing the identity of Dy.SP AO had been shivered and that Dy.SP ascertained the identity particulars of AO and that Dy.SP got conducted chemical test to the both hand fingers of AO which yielded positive result and that

Dy.Sp., preserved the resultant washes of right hand and left hand fingers of AO and that Mos.3 and 4 are the said resultant washes and when the Dy.SP., questioned AO, about receiving of money, the narrated version of AO is incorporated in post trap proceedings and that on being questioned by the Dy.SP, AO showed the place where he kept the tainted amount in the table drawer in the second room and then DSP picked up the wad of currency notes from the table drawer and on the instructions of DSP, he verified the serial numbers and denomination of the said currency notes with that of the serial numbers and denominations noted in the pre-trap proceedings and found them tallied and that Dy.SP., seized the tainted amount of Rs.1500/- ie., MO5 and got 17 CC 28/2011, ACB COURT/VSP conducted the chemical test to the portion of the table drawer which yielded positive result and preserved the resultant solution vide MO.6.

31. PW4 during his cross-examination admitted the suggestions of AO that the field staff will have no fixed seats in the office. He further stated that duties of AO were relating to field work. He denied the suggestion that himself and PW-1 did not go to the room of AO and did not ascertain his position and his seat. PW4 stated that he did not say before DSP, ACB that himself took vantage position near the house of VRO. The relevant portion in the statement of PW4 recorded u/s.161 Cr.P.C., is marked as Ex.D1.

He further stated that his position was shown in Ex.P7 rough sketch of the scene at the outside of the building in north-west corner and that as per Ex.P7 rough sketch, DSP and other ACB persons were not visible to AO and they were not visible to him. He denied the suggestion that he does not know anything about the case and that he is deposing false.

32. PW7 trap laying officer stated on oath in similar lines of PW4, mediator of pre and post trap proceedings. PW7 during his cross-examination stated that the vantage position of PW4 is shown in Ex.P7 rough sketch outside steps to the first floor of the building but not outside the building of AO on north-west corner as suggested. He has not shown the chair position in the room of AO in Ex.P7. He denied the suggestion that no raid at the house of AO was conducted in the manner as mentioned in Ex.P.8 and that he did table investigation in this case.

33. During arguments of Ld. Counsel for AO, it is raised that PW4 stated that himself and PW1 waited in the office of Tahsildar, Bondapalli for 45 minutes and then came out and that PW1 informed to DSP, ACB that AO is not available in the office.

Whereas, PW1 did not say that they waited 45 minutes in the office of Tahsildar for arrival of AO, Ld. Counsel for AO further argued that the duty of AO being VRO is field work and as such there will not be any seat or room in the office of Tahsildar, Bondapalli allotted to AO. But PW1 stated that he went to Tahsildar office, Bondapalli and noticed that AO is not available in the seat. Whereas, PW4 stated that they went to the room of

AO in the office of Tahsildar, Bondapalli and noticed AO was not available.

34.With due respect to the arguments of Ld. Advocate for AO mentioned above and on scrutiny of evidence of Pws.1 and 4, both of them consistently stated in the evidence that they went into the office of Tahsildar, Bondapalli to meet AO by PW1 and that they noticed AO was not available in the said office. In that connection, PW1 stated 18 CC 28/2011, ACB COURT/VSP that AO is not available in his seat whereas PW4 stated that AO is not available in his room. Admittedly, AO is a VRO attached to the office of Tahsildar, Bondapalli. No doubt most of the duty of VRO is field work but it does not mean that VRO particularly AO had no occasion to visit and stay in the office of Tahsildar, Bondapalli. during his services as

VRO of Bondapalli, during other than field work hours VRO had naturally available in the office of Tahsildar, Bondapalli he may or may not allotted a definite seat or room but he will be stayed in the office of Tahsildar, Bondapalli other than field duty hours and available to the public. In that connection, Pws.1 and 4 stated that AO is not available in his seat (stated by PW1) and AO is not available in his room in the office of Tahsildar,

Bondapalli (stated by PW4) but on that score, their evidence cannot be doubted regard their visit of office of Tahsildar, Bondapalli on the date of trap. PW1 did not say that he immediately returned to Dy.S.P on notice AO is not available in his seat. PW1 may not depose that they waited in the office of Tahsildar for 45 minutes as stated by PW4 for arrival of AO. But is cannot be a contradiction more particularly material contradiction.

35. One defence point raised by Ld.Advocate for AO is that on the instructions of

DSP, PW1 made telephone to AO on the date of trap but the call data of cell phone of

PW1 is not filed by the prosectuion and as such, it is fatal to the case of prosecution.

36.This court do not understand as Ld.Advocate for AO argued the above without giving any consideration to the evidence of PW6. PW6, S.Deepak Kumar, Nodel

Officer (General Manager), Airtel, Hyderabad stated that he received a letter from ACB,

Vizianagaram for furnishing call details of mobile number 9573911660 and 9866473654 and its ownership particulars. He further stated that the Mobile No.9573911660 stands in the name of R.Sudhakara Rao ie., AO of this case. Whereas, Mobile No.9866473654 stands in the name of N. Venkatesh, Bondapalli, Vizianagaram. He further stated that he furnished the ownership particulars and call particulars through letter dated 26-2-2011 ie., Ex.P10 and statement covering the period from 6-9-2010 to 17-11-2010 covered by

Ex.P11. AO did not cross examine PW6. Cross-examination of PW6 by AO is noted as “Nil”. In other words, the evidence of PW6 coupled with Exs.P10 and P11 covering letter and statement of call details at the relevant point of time is not challenged or disputed by

AO. The relevant call in Ex.P11 statement is shown as Sl.No.135 on 16.11.2010 at 12.42 hours. If the said call on the date of trap to the cell phone of AO is not from PW1 and from any other person, AO has to place such evidence to disprove the evidence of PW6 19 CC 28/2011, ACB COURT/VSP and entries made in Ex.P11 call data statement which is submitted by Airtel services to

ACB officials vide Ex.P10 covering letter. Ld.Counsel for AO is simply argued that prosecution failed to place any evidence connecting N.Venkatesh, resident of Bondapalli to PW1 and as such the said call is not from PW1 to AO. No doubt, prosecution did not place any evidence connecting PW1 and N.Venkatesh in whose name the SIM of the said cell phone stands but prosecution placed evidence and established that AO received a call to his cell phone on the date of trap at about 12.42 hours from SIM stands in the name of N.Venkatesh. No evidence placed by AO to the effect that he received call to his cell phone on the date of trap at about 12.42 hours from one person other than PW1. Any how evidence of Pws.1, 4 and 7 amply established that PW1 visited the house of AO at

Bondapalli on the date of trap and AO was caught hold by PW7 and arrested him during post trap proceedings after conduct chemical test to both hand fingers of AO as well as to the surface of the table drawer where tainted amount was kept. Therefore, prosecution established the fact that PW1 went to the house of AO at the time of trap. Evidence of

Pws.1 and 4 consistently established that both of them went to the office of Tahsildar,

Bondapalli on the date of trap at the first instance and after notice that AO was not available in the office, they came out from the office and met DSP and PW1 informed to

DSP that AO was not available in the office and that on the instructions of DSP, PW1 made telephone to AO and that AO informed to PW1 that he is at Elementary school,

Bondapalli and asked him to come to the school and accordingly all of them went to the said school and stopped their vehicles at some distance and PW1 went to the school and met AO, whereas PW4 closely followed PW1. Their evidence further shows that AO asked

PW1 to come to his house and proceeded on his bike and that PW1 informed the same to PW4 and that both of them came to vantage position of PW7 and PW1 informed the events occurred the Elementary school between him and AO and then all of them proceeded to house of AO and vehicles stopped at some distance to the house of AO and

PW1 went to the house of AO which is located at the first floor of the building, whereas

PW4 closely followed him. Therefore, call data particulars of cell phones of PW1 and AO are not so much important for consideration. Any how, prosecution take steps and examined the concerned Nodel Officer, (General Manager), Airtel, Hyderabad as PW6 and marked the call details of both the cell phones by way of statement covered by Ex.P11 and opportunity is given to accused to cross-examine PW6 but AO did not challenge or 20 CC 28/2011, ACB COURT/VSP dispute the evidence of PW6.

37. Coming back to vantage position of PW4, he categorically stated that he closely followed PW1 to the house of AO located in the first floor and he took vantage position at the entrance (of the house of AO). PW4 stated during his cross-examination, his position was shown in Ex.P7 at the outside of the building in north-west corner (not as vantage position). PW7 stated that vantage position of PW4 is shown as in Ex.P7 rough sketch opposite to steps to the first floor but not outside the building of AO on north-west corner as suggested. The rough sketch got prepared by PW7 during post trap proceedings as he went to the house of AO soon after receive pre arranged signal from

PW4 who relied the said signal after receive pre arranged signal from PW1. PW4 categorically stated in his evidence that he received pre arranged signal from PW1 by wiping his face with handkerchief and then he came down to ground floor and relied pre arranged signal to DSP and trap party members. It shows that PW4 took vantage position in the first floor of the building where the house of AO was located. By the time, PW7 and trap party members rushed to the scene. PW4 was at the ground floor as he got down steps from first floor to rely pre arranged signal to DSP. So, PW7 noticed presence of PW4 when he reached to the said building at the ground floor ie., nearer to the steps to the first floor. In that connection, the position of PW4 might have shown nearby the steps to the first floor of the building. It may be west-north corner of the building but not outside the building of AO. PW7 noticed the presence of PW1 as well as one more person (who came to the house of AO for certificate) at the entrance of the house of AO. Thereby, their positions are categorically noted at the entrance of house of AO in the first floor in

Ex.P7 rough sketch. PW7 noticed the presence of AO in the front room of his house.

Accordingly, the position of AO is shown in the front room of his house in Ex.P7. He may not concentrate to show position of the chair in front room. Table drawer is shown in the second room of the house of AO which is tallied with the evidence of Pws.1, 4 and 7.

Evidence of PW4 on oath in the court that he followed PW1 to the house of AO and PW1 went into the house of AO. Whereas, he took vantage position at the entrance (of the house of AO) is not disturbed by AO during cross-examination of PW4. It is not the case of AO that PW4 got enmity with him to depose evidence against him. No doubt, PW4 stated that he acted as mediator in one more case of ACB officials but it does not mean that he is an interested witness of ACB. He being a public servant and on being request 21 CC 28/2011, ACB COURT/VSP made by ACB officials to the superiors of PW4 and his superiors might have direct PW4 in this case as well as in another case to assist ACB officials. It is not the case of PW7 or AO that PW7 made requisition to the superiors of PW4 to depute PW4 only to assist ACB officials. PW4 is not depending on ACB officials. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose and whatsoever. (Hazari Lal vs. Delhi Administration AIR 1980 SC 873). So, PW4 is an independent witness and moreover the evidence of PW4 accompanying mediator gained confidence of the court. Under these circumstances, non- examination of persons who come to the house of AO for certificate and present at the entrance of the house of AO is not fatal to the case of prosecution. Quality of evidence is important but not quantity.

38. No doubt, PW1 being defacto complainant in the case gave written complaint against AO to ACB officials and brought the criminal law into motion but on that score alone, his evidence cannot be rejected at the threshold. Such a handicap in his evidence may require the Court to scrutinize it with greater care, but it does not call for outright rejection of his evidence at the threshold. A pedantic approach rejecting the evidence of a complainant simply on the premise that he was aggrieved against the bribe-taker, would only help corrupt officials getting insulated from legal consequences. On careful scrutiny of evidence of PW1, it is evident that he supported the case of prosecution regard initial demand of bribe by AO when himself and PW2 met AO on 6.9.2010. The same is also found place in statement of PW1 u/s.161 Cr.P.C., before DSP, ACB and u/s.164 Cr.P.C., before Magistrate PW2 supported the case of prosecution and corroborated with the evidence of his son ie., PW1 in respect of initial demand of bribe amount made by AO on 6.9.2010. Evidence of PW1 also corroborates Ex.P2, report. As such, prosecution proved the accusation of initial demand. No doubt, PW1 did not say

before Magistrate while recording the statement u/s.164 Cr.P.C., that on the date of trap,

AO demanded him the bribe amount. But he stated that he took out the tainted amount from his pocket and offered to AO and AO received it and counted the same and kept it in table drawer in the second room of his house. It is not the case of AO that he got money transactions with PW1. If it is not taken towards bribe or illegal gratification, the bounden duty cast on him to explain for what purpose he received amount of Rs.1500/- from

PW1. He did not place any acceptable evidence or considerable explanation in this 22 CC 28/2011, ACB COURT/VSP regard. So, the omission of word “demand” made by AO to PW1 on the date of trap while giving statement by PW1 before Magistrate u/s.164 Cr.P.C., is not a material omission.

There is nothing in the evidence to show that PW1 has any grouse or enmity against AO except took a defence that PW1 filed a false case against AO as AO did not oblige the request of PW1 to mutate the name of his father and issuance of pattadar passbook and title deed book in favour of his father. Evidence of PW1 is corroborated with the evidence of PW4. PW7 trap laying officer supported their version. One must mind the fact that

PW7 who arranged the trap had no interest against the defacto complainant. But the verve is shown by him to bring his trap to a success is no ground to think that he had any animosity against the accused officer. PW7 made arrangements to smear the phenolphthalein powder on the currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that currency notes were just thrust into his hand of an unwilling officer. Such a test is conducted for his conscientious satisfaction that he was proceeding against a real bribe-taker and that an officer with integrity is not harassed unnecessarily. The chemical test used by PW7 in this case not because there is any such direction by the statutory provision, but for his satisfaction that the suspected public servant would have really handled the bribed money. The resultant wash after conducting chemical test to the left hand fingers of AO as well as surface of table drawer shows pink in colour evidenced by Mos.4 and 6. The resultant wash of right hand fingers of AO covered by MO.3 is thick white colour solution. If really Mos.4 and 6 are planted by

PW7, he should have also planted MO.3 with pink colour wash, but he did not do so.

There is no material discrepancy in the evidence regarding procedure adopted in pre trap proceedings as well as post trap proceedings regard apply of phenolphthalein powder to the currency notes and conduct of chemical tests. The reaction and confusion of AO when

PW7 and his trap party rushed to the residence of AO and on disclose the identity of PW7 is inconsistent with his innocence, as AO became shivered.

39. On considering the evidence of Pws.1, 4 and 7 coupled with positive result of chemical test conducted to the left hand fingers of AO as well as surface of table drawer found in the second room of house of AO during post trap proceedings, this Court is of opinion without any doubt in its mind that the marked currency was handled by AO at the time of trap. How a few minutes earlier was the notes with the PW1 and immediately after the raid party entered into the residence of AO, the marked currency which was 23 CC 28/2011, ACB COURT/VSP kept in the table drawer was recovered at the instance of AO by PW7 in the presence of

PW4 and another mediator under the cover of Ex.P8. The suggestion of AO to PW1 is that he was in the bathroom, by the time, PW7 came to his house and on return from bathroom into the room, PW1 implored AO to do his work in one way or other by catching his hands. The said suggestion is denied by PW1. AO did not elicit any favourable evidence during cross-examination of PW1 in support of the said suggestion.

At the same time, AO did not place any positive evidence by got examine any witness on his behalf in support of the said suggestion. AO did not gain any benefit on the said denial suggestion. Thus, prosecution proved recovery of the tainted amount from AO.

40. Once prosecution established recovery of tainted amount from AO during post trap proceedings, prosecution can safely rely on the statutory presumption u/s.20 of

PC Act which is a rebuttable presumption. Accused officer can rebut it with the yardstick of preponderance of probabilities by elicit admissions during cross-examination of prosecution witnesses or by place positive evidence during his turn. By virtue of presumption envisaged u/s.20 of PC Act, it shall be presumed, unless 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 mentioned as in Section 7 of PC Act. On scrutiny of evidence of Pws, accused officer, did not elicit any favourable evidence during cross-examination of Pws to rebut the presumption mentioned supra. At the same time, AO did not place any favourable evidence during his turn to rebut the said presumption. Accused Officer got examined DW1, the present Tahsildar of Bondapalli

Mandal of Vizianagaram District and got marked Exs.X1 to X5 to establish the falsity of part of the claim for mutation and issuance of pattadar passbook in favour of PW2. The said point is altogether different with that of rebuttable of presumption. The evidence of

DW1 coupled with Exs.X1 to X5 is no way helpful to AO to rebut the presumption u/s.20 of PC Act. The fact remains that accused officer did not rebut the presumption u/s.20 of

PC Act. Still the said presumption favours the case of prosecution. A decision in the case in between M.Narasingarao Vs. State of A.P.,6 is important for consideration wherein it was held that, legal presumption is not rebutted it tantamounts to proof. So, the prosecution can safely take shelter under the umbrella of said presumption and need not place any evidence to prove the element of “motive” or “reward” described as in section 6 2001 CRL.J 515 24 CC 28/2011, ACB COURT/VSP 7 of PC Act. Any how, prosecution placed ample evidence and proved that official favour to do to PW2 for processing his application, Ex.P1 for mutation of his name and for issuance of pattadar passbook in his name in the place of name of his father is pending with AO as on the date of trap.

41. On summarizing findings above, this Court holds that prosecution placed consistent oral evidence coupled with result of chemical test and actual recovery of tainted cash of Rs.1500/- marked as MO.5 from AO during post trap proceedings and consequently proved the recovery of tainted amount of Rs.1500/- ie., MO5 from AO by

PW7 in the presence of PW4 and another mediator during post trap proceedings covered by Ex.P8. Therefore, presumption u/s.20 of PC Act comes into play as per decision of

Hon'ble Apex Court held in the case in between State of Andhra Pradesh Vs.

R.Jeevaratnam7 wherein Their Lordships relying upon the observations of 3 Judges Bench in the case of Raghubir Singh Vs. State of Punjab8 held that, the very fact that the accused was in possession of marked currency notes against the allegation that he demanded and received the amount is RES IPSA LOQUITOR and therefore a legal presumption of section 20 of the Act shall be drawn.

42. The other element has to be proved by prosecution is “demand”. For which prosecution relied on evidence of Pws.1 and 2, son and father inter-se. Both of them categorically and consistently without any deviation stated that on 6.9.2010 when they met AO for their work of processing of application of PW2 ie., Ex.P1 for mutation and for issuance of pattadar passbook, AO initially demanded them to pay bribe of Rs.2000/- and the same is reduced to Rs.1500/- on being expressed inability to pay such amount by

Pws.1 and 2. The same is not shattered by AO during cross-examination of Pws.1 and 2.

Adding to this, PW1 further stated that on the date of trap, AO verified at his house from

PW1 whether he brought demanded amount and then he picked up marked currency from his pocket and gave to AO and that AO in turn counted the same and kept it in table drawer in the second room of his house. PW4 accompanying mediator corroborated the evidence of PW1 regard passing of tainted amount from PW1 to AO. Their evidence further supported with the evidence of PW7 regard recovery of tainted amount marked as

MO.5 from office table drawer of AO at the instance of AO. The details of denomination and serial numbers of amount recovered from office table drawer of AO at his instance 7 2004 (2) ALD Crl.486 SC 8 1994 (4) SCC 560 25 CC 28/2011, ACB COURT/VSP are correctly tallied with details of denomination and serial numbers of currency notes mentioned in pre trap proceedings. This Court already held supra that it is not the case of either of the parties that there are money transactions pending between PW1 and AO. AO did not place any acceptable explanation or material on record to establish that he received amount of Rs.1500/- from PW1 towards other than illegal gratification or bribe.

Thereby, prosecution established the element of demand besides recovery of tainted amount from AO with whom, an official favour to do to PW2, was pending beyond all reasonable doubts.

43. Ld.Advocate for AO argued that PW7 did not comply with manual instructions regard proper verification of genuineness of contents of Ex.P2 complaint as well antecedents of suspector employee before registration of crime on hand and that if really PW7 got verified through PW8 properly regard contents of Ex.P2, they must came to know that Pws.1 and 2 involved in a murder case of another legal heir namely Eswara

Rao S/o Suryanarayana alias Gandhi. They made it as a formality by mention endorsement by PW8 that he verified the correctness of the contents of Ex.P1 and corruptness of suspector employee on Ex.P2 and then PW7 registered Ex.P2 as a crime and thereby very registration of crime on hand, it not proper.

44. Ld. Counsel for AO argued that evidence of PW1 clearly shows that application for mutation of name of PW2 was filed almost 10 years after the death of grandfather of PW1 and after murder of Eswara Rao S/o Suryanarayana. The apparent reason on the part of Pws.1 and 2 is to suppress any traces of evidence regarding the presence of other legal heirs and then claim the entire property as if belonging to PW2 only and a glance at the printed FIR filed during examination of AO u/s.313 Cr.P.C., shows that in Crime No.11/2004 of Bondapalli PS., for the offence u/ss.302, 201 r/w.34

IPC on a report given by PW2 herein that PW2 made attempt to throw the blame on two innocent persons and during the investigation it was found that the contents of the report are false and that PW2, himself, and his sons, PW1, and another are the real perpetrators of the murder and as such it is clinchingly established that PWs.1 and 2 are men of doubtful character and not a sterling worth as believed by ACB officials. He further argued that if their evidence is valid, it can be perceived that they are unscrupulous persons ready to do anything including murder for their nefarious ends. It is further argued by Ld. Advocate for AO that PW2 is not entitled for mutation of his name and for 26 CC 28/2011, ACB COURT/VSP issuance of pattadar passbook in his name for entitled Ac.0.57 cents of land covered by

Ac.0.32 cents in S.No.51/3 and Ac.0.25 cents covered by S.No.51/4 which is classified as “Gayalu” belongs to Government and no one is entitled patta for the said land and that

Pws.1 and 2 made a preplan to grab the Government land of Ac.0.25 cents in S.No.51/4 and that the remaining land Ac.0.35 cents in S.No.51/3 originally belongs to grandfather of PW1 and that there are other legal heirs than PW2 for the said land and that the younger brother of PW2 namely Suryanarayana alias Gandhi died leaving his son Eswara

Rao and his wife with eight months pregnancy and later his wife blessed with a male child and that later the said Eswara Rao was murdered by PW1 and his younger brother and PW2 and that they faced trial of murder case and that about 10 years after death of father of PW2, PW2 came up with application for mutation and pattadar passbooks in his name, that too, after murder of Eswara Rao and that the said application ie., Ex.P1 is conveniently silent about other legal heirs ie., second son of late Suryanarayana alias

Gandhi and as such, the claim of PW2 in Ex.P1 is with malafide intention to grab entire

Ac.0.32 cents of land in S.No.51/3 besides Government land of Ac.0.25 cents in

S.No.51/4 which is classified as “Gayalu” in revenue records.

45. With this defence theory, Ld.counsel for AO made cross-examination of

Pws.1 and 2. PW1 during cross-examination stated that his grandfather had two daughters and one son and that the daughters were Parvathi and Padma and his father's name is Narayana and that he heard that one of his sons of his grandfather was expired in childhood days and that his name was Suryanrayana alias Gandhi and that one Eswara

Rao is his elder brother by courtesy. He admitted the suggestion that Suryanarayana alias Gandhi was not expired in childhood days. The said Suryanayanaya had wife and children. The said Eswara Rao is the eldest son of Suryanarayana. Suryanarayana was expired after the birth of Eswara Rao. On death of Suryanarayana, his wife went to her parents house and he does not know her name and that she was carrying pregnancy of 8 months by that time and after going to her parents house, she gave birth to a male child.

He admitted the suggestion that his grandfather was looking after the welfare of her elder son namely Eswara Rao by that time by not sending him along with his mother. He admits one more suggestion that his grandfather, his father and Eswara Rao and his parents were residing jointly. He further admits one more suggestion that his father brought up Eswara Rao as his fostered son. He does not know whether the name of the 27 CC 28/2011, ACB COURT/VSP wife of Suryanarayana was Ramulamma. He does not know whether his grand father executed a Will in favour of Eswararao in respect of the subject matter of the property pertaining to Ex.P1. He does not know the details of property inherited by his father from his grandfather. They used to cultivate the subject matter of land in this case after the death of his grandfather. They had no other properties. They are three brothers and one sister to his parents. He admitted the suggestion that Eswara Rao was murdered and that himself and his younger brother and his father were tried in the above said murder case

before Sessions Court, Vizianagaram. They did not mention in Ex.P1 about the number of

legal heirs of his grandfather. They asked for mutation only in the name his father.

46. On considering the evidence of PW1 which was elicited by AO during cross- examination, it is evident that at the first instance during cross-examination, PW1 stated that one of the sons of his grandfather was died during his childhood days. Later, he himself admitted suggestion given by AO that Suryanarayana alias Gandhi ie., younger brother of PW2 and younger son of grandfather of PW1 was not died during his childhood days. Suryanarayana alias Gandhi died by leaving his son Eswara Rao and wife who carried 8 months pregnancy. The evidence on record further disclose that the said

Suryanarayana alias Gandhi, ie., younger brother of PW2 was died prior to birth of PW1.

After death of Suryanarayana alias Gandhi, his son Eswara Rao remained with family and

PW2 had brought up Gandhi as his fostered son. Whereas, wife of Suryanarayana alias

Gandhi left to her parents house and blessed with male child named as Sanjeeva Rao.

PW2 during his cross-examination stated that Ramulamma was the wife of younger brother of PW1 ie., Suryanarayana alias Gandhi and that she was residing along with her second son namely Sanjeeva Rao and she was expired in the year 2008. He denied the suggestion that she was not expired. Any how, no better evidence is placed either by

Pws.1 and 2 on one hand or accused on the other hand to the effect that Ramulamma

W/o Suryanarayana alias Gandhi died in the year 2008 or still alive. Sanjeeva Rao, son of late Suryanarayana alias Gandhi is alive. The evidence on record further disclose that eldest son of Suryanarayana alias Gandhi by name Eswara Rao was murdered and in that connection, a crime was registered vide Crime No.11/2004 of Bondapalli P.S., for the offence u/ss.302, 201 r/w.34 IPC on the report given by PW2 herein. After investigation, charge-sheet is filed in that crime against PW1 herein, his younger brother and PW2 herein. They faced trial of murder case before Sessions Court at Vizianagaram. Simply 28 CC 28/2011, ACB COURT/VSP because, Pws.1 and 2 herein were shown as accused in a murder case, it does not mean that they murdered the said Eswara Rao. Accused herein did not place any evidence that the murder case of Eswara Rao faced by Pws.1 and 2 herein and another ultimately ended in conviction after trial by Sessions Court, Vizianagaram. No such suggestion is given or no such record is placed by accused herein this case. Under these circumstances, Pws.1 and 2 cannot be treated with bad character. Even if it is considered as their bad character, it cannot be stitched to the body of Pws.1 and 2 herein. There is no statute on land prohibited an accused in a case more particularly convicted prisoner to give complaint or report to police whenever he became victims with hands of others and that the complaint given to police by PW1, cannot be taken with suspicion. Under these circumstances, PW1 though cited an accused in a murder case of Eswara Rao in a crime

No.11/2004 of Bondapalli P.S., of Vizianagaram District cannot be prohibited to give complaint against accused officer in this case before ACB officials in the year 2010. At the same time, Ex.P2 complaint given by PW1 against AO in the year 2010, cannot be taken with suspicion. ACB officials have to verify the correctness of the contents and antecedents of suspector employee before registration of crime for the offence under the provisions of PC Act but not to verify the antecedents of defacto complainant, that too, the said verification is a confidential one and the concerned police officer need not disclose the details of verification made by him to know the correctness of the contents of the report and corruptness of suspector employee. In the case on hand, PW7, the then

DSP,ACB, Vizianagaram received Ex.P2 from PW1 and thereafter entrusted the same to the Inspector, ACB, Vizianagaram, who is examined as PW8 in this case for verification.

PW8 in turn verified and made endorsement on Ex.P2 and handed over it to PW7.

Thereafter, PW7 registered Ex.P2 as a crime on hand. No doubt, PW7 on 15.11.2010 after receipt of Ex.P2 report from PW1, direct PW1 to come to ACB office, Vizianagaram on 16.11.2010 along with proposed bribe amount but it does not mean that PW7 on 15.11.2010 decided to register the crime and laid trap on 16.11.2010. PW7 had simply made foundation on 15.11.2010 and in that course, he directed PW1 to approach ACB office, Vizianagaram on 16.11.2010 along with proposed bribe amount to lay trap on 16.11.2010 in case registered Ex.P2 report of PW1 as a crime, after verification and after obtain permission from competent authority. So, Court should not draw any other inference in this regard to say that PW7 himself decided on 15.11.2010 to register the 29 CC 28/2011, ACB COURT/VSP crime on 16.11.2010 to lay trap on AO.

47. Regard falsity of the contents of Ex.P1, AO got examined the present

Tahsildar, Bondapalli Mandal, Vizianagaram District as DW1 and got marked Exs.X1 to X5.

DW1 stated that he joined in Govt. service in April, 2009 and that he did not work along with A.Raghuramaiah, the then Tahsildar, Bondapalli Mandal at any point of time but he identified Ex.X1 issued by A.Raghuramaiah to DSP,ACB, Vizianagaram. When DW1 did not work along with the then Tahsildar, Bondapalli Mandal, by name A.Raghuramaiah, how DW1 can able to identify the signature of A.Raghuramaiah on Ex.X1. AO has not chosen to examine A.Raghuramaiah to prove the contents of Ex.X1. In fact, Ex.X1 is copy of letter dt.30.4.2011 from A.Raghuramaiah, Tahsildar, Bondapalli to DSP,ACB,

Vizianagaram in respect of events of mutation of name of PW2 and extent of land and details of other legal heirs of late father of PW2 etc., which are held subsequent to trap.

As per contents of Ex.X2 ie., copy of 1-B register stands in the name of Dola Chinnodu alias Tata fo Ac.0.32 cents of land and the same is rounded off and name of PW2 is mentioned for Ac.0.16 cents and the entries are changed in 1-B register after enquiry on 24.11.2010 ie., subsequent to trap. Ex.X3 is attested copy of statement of PW2 recorded by Mandal Revenue Inspector on 24.11.2010 ie., subsequent to trap. If really, AO wants to rely on Ex.X3, the same has to be confronted to PW2 while he was in witness box in the court, but he did not do so. Ex.X4 is copy of covering letter dt.24.11.2010 by Mandal

Revenue Inspector, Bondapalli to Tahsildar, Bondapalli regard enquiry conducted for mutation and for issuance of pattadar passbook which is subsequent to trap on AO in this case. The author of Ex.X3 and X4 is not examined by defence to prove that an enquiry has been conducted by the then Mandal Revenue Inspector on 24.11.2010. With regard to Ex.X5 copy of Final Check Operation (FCO) record relating to Sy.Nos.51/3 and 51/4 and as per FCO record, the land in S.NO.51/4 of Bondapalli is “Gayalu”. Whereas, the land in S.NO.51/3 of Bondapalli is “zirayiti” Ex.X1 copy of letter by the then Tahsildar,

Bondapalli to ACB officials contains that land in S.No.54/1 (the correct S.No.51/4) measuring Ac.0.25 cents since been happened as Government land, D-patta can be granted as per the norms prescribed in respect of disposal of land and eligibility criteria.

Therefore, the land in S.No.51/4 of Bondapalli more particularly Ac.0.25 cents which is the subject matter of the case on hand is not a totally prohibited land to grant D-patta.

The contents of Ex.X1 relied by AO in this case itself show that Ac.0.25 cents in 30 CC 28/2011, ACB COURT/VSP

S.No.51/4 of Bondapalli Village though happened as Government land. D-patta can be granted as per norms prescribed in respect of disposal of land and eligibility criteria.

Admittedly, PW2 is son of Dola Chinnodu alias Tata alias Chinnayya, father of PW2, died in 2000. The younger brother of PW2 by name Surayanarayana alias Gandhi predeceased their father. Younger brother of PW2 died intestate leaving his son Eswara Rao and a child in the womb of his wife. Subsequently she blessed with a son-Sanjeeva Rao. Eswara Rao,

S/o Suryanarayana alias Gandhi died in 2004. Sanjeeva Rao, younger brother of Eswara

Rao is living along with his mother Ramulamma at her parents ever since his birth as

Ramulamma left to her parents house with 8 months pregnancy soon after the death of her husband Suryanarayana alisa Gandhi. The eldest son of Suryanarayana by name

Eswara Rao was brought up by PW2 in view of the suggestion given to Pws.1 and 2 by

AO. Dola Chinnodu alias Tata and his elder son ie., PW2 and his son ie., PW1 and Eswara

Rao son of deceased Suryanarayana lived jointly. It is not the case of PW1 and PW2 or accused that PW2 and legal heirs of deceased younger brother Suryanarayana alias

Gandhi got divided the properties and each got Ac.0.16 cents out of Ac.0.32 cents in

S.No.51/3 of Bondapalli.

48. This Court do not understand how the revenue officials rounded of entries in 1-B register covered by Ex.X2 of Ac.0.32 cents and name of Dola Chinnodu alias Tata and written Ac.0.16 cents in the name of PW2 by leaving the rest of extent ie., Ac.0.16 cents in the name of deceased Dola Chinnodu alias Tata even without effect partition of properties between PW2 and legal heirs of his deceased younger brother Suryanarayana alias Gandhi. In fact Dola Sanjeeva Rao S/o late Suryanarayana alias Gandhi is not examined by the defence in this case to prove that the contents of Ex.P1 report of PW1 are false to some extent. The way of cross-examination of Pws.1 and 2 made by AO in this case shown that AO took vakalat of other legal heir of PW2 ie., Sanjeeva Rao, who is the son of late Suryanarayana alias Gandhi. Even assume for the sake of arguments, mutation of names and change of extent of land in S.No.51/3 of Bondapalli P.S., made by revenue officials subsequent to trap in this case and carried out in 1-B register etc., are true and correct, still PW2 got right to claim Ac.0.16 cents of land in S.No.51/3 of

Bondapalli. In such event, the claim of PW2 under Ex.P1 cannot be construed as false to the entire extent of the land. PW2 gave Ex.P1 representation dt.30.8.2010 to Tahsildar,

Bondapalli Mandal by enclose copies of death certificate of Dola Chinnodu alias Tata as 31 CC 28/2011, ACB COURT/VSP well as copies of title deed and pattadar passbook in the name of Dola Chinnodu alias

Tata. Ex.P1 and endorsement are seized by PW7 during post trap proceedings on being produced by AO. The same is marked as Ex.P6 made up file. DW1 during his cross- examination stated that photostat copies of pattadar passbook and title deed book which are part of Ex.P1 shown to him disclose that those revenue books were issued on 25.7.96 in the name of Dola Chinnodu alias Tata for an extent of Ac.0.32 cents in S.No.51/3 and

Ac.0.25 cents in S.No.51/4. He further stated that pattadar passbooks will be issued by the concerned MRO and title deed will be countersigned by the concerned RDO. No doubt

DW1 deposed above evidence during his cross-examination on being shown the enclosures of Ex.P1 but DW1 did not say that the copies of pattadar passbook and title deed books which are part of Ex.P1 and which are shown to him are not genuine. The enclosures of Ex.P1 show that pattadar passbook and title deed book were granted to grandfather of PW1 by name Dola Chinnodu alias Tata (Chinnayya) for not only Ac.0.32 cents of land in S.No.51/3 of Bondapalli but also in respect of Ac.0.25 cents of land in

S.No.51/4 of Bondapalli ie., for total extent of Ac.0.57 cents of land. Whether entries made in those books and claim made by PW2 in Ex.P1 for mutation of his name in the place of name of his father Dola Chinnodu and for issuance of pattadar passbook in the name of PW2 are true or not is not the question to be considered by ACB in deciding the charges against public servant for the offence punishable u/ss.7 and 13(2) read with section 13(1)(d) of PC Act. It is not the case of AO in this case that total claim of PW2 made in Ex.P1 is false. It is also not the case of AO that PW1 or PW2 have any grouse or enmity against him prior to present Ex.P1 application to the then Tahsildar, Bondapalli.

Therefore, this Court finds that there is no force in the arguments of Ld.Advocate for AO that the claim of PW2 made in Ex.P1 contains the entire falsity.

49. Ld.Counsel for AO argued that the case of prosecution is that Mandal

Revenue Inspector, Bondapalli who is examined as PW3 sent Ex.P1 to AO being VRO of

Bondapalli on 1.9.2010 is doubtful. As on 1.9.2010 was declared as holiday by the

Government evidenced by G.O.Rt.No.4329 dt.30.8.2010 which is enclosed along with written statement by AO. As per the said GO, Government changed general holiday on the occasion of Srikrishnashtami to 1.9.2010 instead of 2.9.2010 and that 2.9.2010 shall now be observed as working day. Most of the duty of MRI and VRO is field work and as such they used to discharge their duties depend on urgency and circumstances 32 CC 28/2011, ACB COURT/VSP irrespective of working or non working days. In fact evidence of PW3 and DW1 revenue officials is that in the month of August 2010 in view of the Government policy, the Joint collector taken up a special drive for allotting unique ID number for the pattadar pass book holders which is a time bound programme and as such AO being VRO busy with the said work. In fact one of the defences of AO in this case is that as he was entrusted with

Unique ID number of pattadar passbooks and title deed books, he should not bestow his attention to conduct enquiry and verification of revenue records to submit report in pursuance of Ex.P1 in time and thereby caused delay. It is not the version of AO that

PW3, the then Mandal Revenue Inspector, Bondapalli Mandal did not endorse Ex.P1 to

VRO, Bondapalli to conduct enquiry and verify the records and submit report. Nothing benefited by prosecution to fabricate the endorsement of PW3, the then Mandal Revenue

Inspector on Ex.P1 on 1.9.2010. Thereby accused did not gain any benefit by expose his evidence that 1.9.2010 was declared as holiday by Government and as such, the endorsement made by PW3, the then Mandal Revenue Inspector on Ex.P1 to VRO,

Bondapalli as “please verify”, on 1.9.2010.

50. One more defence raised by AO in this case is that Pws.1 and 2 with malafide intention submit Ex.P1 to grab the property in the name of PW2 about 10 years after death of Chinnodu and after murder of Eswara Rao. No doubt, Chinnodu ie., father of PW2 died in 2000 and Ex.P1 was presented in 2010 ie., 10 years after death of

Chinnodu but Ex.P1 is submitted to revenue officials by PW2 soon after death of Eswara

Rao who was died or murdered in 2004. Therefore, the delay of 10 years to submit Ex.P1 by PW2 for mutation and to get passbooks in his name and after death of his father

Chinnodu is not a ground to suspect claim of PW2 under Ex.P2 for mutation. In fact, there is no limitation to submit application to the revenue officials for mutation and names. It is also settled law that entries in revenue records are not considered as title over the property.

51. No doubt, the copy of pattadar passbook in the name of Dola Chinnodu alias

Tata enclosed to Ex.P1 contains the name of D.Narayana, S/o Chinnodu about the name of Pattadar ie., Dola Chinnodu alias Tata @ Chinnayya ie., Sanyasi. Pws.1 and 2 stated that they do not know who wrote the name of PW2 over and above name of Pattadar ie.,

Dola Chinnayya alisa Tata. In fact, copy of title deed book enclosed to Ex.P1 discloses the name of Dola Chinnodu alias Tata @ Chinnayya S/o Sanyasi. The copies of pattadar 33 CC 28/2011, ACB COURT/VSP passbook and title deed book enclosed to Ex.P1 contains photos of Dola Chinnodu alias

Tata but not photo of PW2 on the copy of pattadar passbook. If really, the name of PW2 is included in pattadar passbook, there is no necessity to PW2 to submit Ex.P1 application to Tahsildar, Bondapalli for mutation and to issue pattadar passbook in his name. It is also not the case of revenue officials who are examined as PW3 and DW1 in this case that already name of PW2 is carried out in pattadar passbook prior to Ex.P1 regard land in S.NO.51/3 and 51/4 of Bondapalli. Under these circumstances, nothing has been gained by AO by rely on the copy of pattadar passbook enclosed to Ex.P1 to overcome from the charges levelled against him in this case.

52. Ld.Advocate for AO argued that there is a difference of ink in signature and date of PW1 on Ex.P2 report and that the date underneath signature of PW1 on Ex.P2 as 15.11.2010 was subsequently inserted after laying trap and got registered Ex.P2 as a crime subsequent to trap. PW1 admitted during his evidence regard difference of ink in his signature and date mentioned on Ex.P2 but he stated that he mentioned the date as 15.11.2010 underneath the signature before present it to DSP, ACB, Vizianagaram on 15.11.2010. Adding to this, evidence of PW4, mediator in pre trap proceeding is important for consideration. PW4 stated that during pre trap proceedings held on 16.11.2010 morning in the room of DSP,ACB, Vizianagaram, DSP gave copy of FIR and complaint to them and asked to verify the genuineness of contents of complaint from

PW1 and accordingly both the mediators gone through the contents of complaint and verified the genuineness of contents of complaint from PW1 and that PW1 stated before mediators during pre trap proceedings that those contents are true and then PW4 and another mediator attested copy of FIR which is marked as Ex.P4. The said incident is also mentioned in Ex.P5 pre trap proceedings ie., mediator report-I which is drafted and concluded prior to lay trap on AO on 16.11.2010. Adding to this, evidence of PW7 and

PW8, ACB officials, disclose that PW7 received Ex.P2 report from PW1 on 15.11.2010 at 10.00 a.m., the same is also endorsed on Ex.P2 and that PW7 entrusted the work of verification to PW8 and that PW8 in turn verified and made endorsement of verification of genuineness of complaint and antecedents of suspector employee on 16.11.2010 and thereafter PW7 registered Ex.P2 as a crime on 16.11.2010 at 9.00 a.m., after obtain permission from competent authority. Evidence of Pws.1, 4, 7 and 8 and entries on Ex.P2 as well as attestation of PW4 and another mediator on Ex.P4 and contents of Ex.P5 pre 34 CC 28/2011, ACB COURT/VSP trap proceedings forced the Court to hold that Ex.P2 report presented by PW1 to PW7 on 15.11.2010, but not subsequent to laying of trap on AO on 16.11.2010. In what way AO would be prejudiced in defending him from the charges framed against him in this case in view of change of ink in the signature of PW1 and date underneath his signature. In fact,

AO did not dispute the fact of caught hold him by PW7 during post trap proceedings held on 16.11.2010 and his arrest. So, laying of trap on AO on 16.11.2010 is not in dispute.

What made to PW7, the then DSP,ACB, Vizianagaram to lay trap against AO without registration of crime. It is not the case of AO that PW7 got enmity with him.

53. Last but not least Ld.Advocate for AO argued that Pws.1 and 2 failed to produce pattadar passbooks obtained subsequent to trap from revenue officials, during the course of trial of this case and as such their evidence regard obtain pattadar passbooks for entire Ac.0.57 cents of land ie., for Ac.0.32 cents of land in S.No.51/3 and

Ac.0.25 cents of land in S.No.51/4 of Bondapalli, is doubtful and that PW7, the then

DSP,ACB, Vizianagaram directed the revenue officials to issue pattadar passbooks to PW2 after trap which he ought not encroach the rights of revenue officials. PW7 during his cross-examination stated that Ex.P8 post trap proceedings contains at page 12 that he instructed the Mandal Revenue Inspector to verify the records and change the name of grandfather of complainant in the passbooks to his father accordingly. It does not mean that PW7 out of out gave directions to Mandal Revenue Inspector to change the name of grandfather of complainant in the pattadar passbooks and enter the name of father of complainant to say that PW7 encroached into the rights of revenue officials. PW7 instructed the Mandal Revenue Inspector to verify the records it means after verification of records and on satisfaction only, Mandal Revenue Inspector has to take steps to submit report to change the name of Pattadar to PW2 in the place of Dola Chinnodu alias

Tata. Therefore, PW7, DSP,ACB, Vizianagaram did not encroach into the rights of revenue officials, as argued by Ld.Advocate for AO.

54. Pws.1 and 2 did not produce those pattadar passbook and title deed book during the course of trial of this case. Non filing of pattadar passbook and title deed book in the name of PW2 obtained subsequent to trap from revenue department is not fatal to the case of prosecution. In fact, grant or non-grant of those books in the name of PW2 subsequent to trap are not relevant for adjudication of ingredients of two charges leveled against AO in this case.

35 CC 28/2011, ACB COURT/VSP

55. On summarizing findings mentioned supra and on considering the evidence of Pws.1, 2, 4, and 7 besides exhibits marked on “P” series and material objects marked in this case, this Court hold that prosecution proved all the ingredients of offence punishable u/s.7 of PC Act as well u/s.13(1)(d) of PC Act punishable u/s.13(2) of PC Act, 1988 against AO beyond all reasonable doubts.

56. Mos.1 to 4, 6 and 7 are liable for destruction on expiry of appeal time.

Whereas, MO.5 cash of Rs.1500/- is liable to return to DSP, ACB,Vizianagaram with a direction to deposit the same in the concerned head of account of Government, on expiry of appeal time, as the bribe amount of Rs.1500/- was reimbursed to PW1 by the

Investigating officer subsequent to trap by withdraw from the concerned account of the

Government.

57.In the result, this Court holds that Accused Officer is found guilty for the offence punishable under sections 7 and 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988 and consequently convicted under Sec.248(2) Cr.P.C. for both the counts above.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me

in open court on this the 4th day of May, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

58.The accused officer is questioned about quantum of sentence, he stated that he has to look after the Education of his three children and prays mercy.

59.Heard both sides. On considering the statement of accused officer about quantum of sentence mentioned above in the light of facts and circumstances of the case on hand and gravity of offence, this Court felt that it is not a fit case to invoke the provisions of PO Act and that Accused officer is sentenced to undergo R.I. for a period of two years and to pay fine of Rs.500/- (Rupees five hundred only) IDSI 30 days more for the offence punishable under Sec.7 of P.C.Act, 1988 and that Accused Officer is further sentenced to undergo R.I. for a period of two years and to pay fine of Rs.500/- (Rupees five hundred only) IDSI 30 days more for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of P.C.Act 1988.

60.The substantive sentence of imprisonment awarded to accused officer for both counts above shall run concurrently.

36 CC 28/2011, ACB COURT/VSP

61.Total fine comes to Rs.1000/-.

62.The detention period of accused officer in this case from 16.11.2010 to 22.11.2010 (both days inclusive) is ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to accused officer.

63.Case property Mos.1 to 4, 6 and 7 vide item No.29/2013 of this Court is ordered to be destroyed on expiry of appeal time, whereas MO.5 cash of Rs.1500/- vide item No.59/2010 of this Court is ordered to be returned to DSP, ACB, Vizianagaram, on expiry of appeal time enable him to deposit the said amount to the concerned head of account of Government as bribe amount of Rs.1500/- was paid to PW1 by the investigating officer subsequent to trap by withdraw from the Government funds.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 4th day of May, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

On behalf of Prosecution: PW1-D.Rajendra Prasad (defacto complaint) PW2-D.Narayana Rao (father of PW1) PW3-G.Srinivasa Rao (the then Mandal Revenue Inspector, Bondapalli Mandal). PW4-S.Salman Raju (mediator in pre and post trap proceedings as well accompanying mediator). PW5-Ch.Madhu Kiran (Section Officer) PW6-S.Deepak Kumar (Nodel Officer (General Manager), Airtel, Hyderabad) PW7-D.Ravi Babu, the then DSP,ACB, Vizianagaram (Trap Laying Officer) PW8-S.Ramesh, the then Inspector, ACB, Vizianagaram (Investigating Officer) On behalf of Defence:

DW1-B.Neelakantarao, Present Tahsildar, Bondapalli Mandal.

No.of Exhibits marked on prosecution side:

Ex.P1/30.8.2010:Application of PW2 to Tahsildar, Bondapalli.

Ex.P2/15.11.2010 :Complaint of PW1.

Ex.P3/ -:Portion of signature of PW1 on statement u/s.164 Cr.P.C.,

Ex.P4/16.11.2010:Copy of FIR

Ex.P5/16.11.2010:Pre trap proceedings (Mediators Report-I).

Ex.P6/ -:Made up file which includes Ex.P1.

Ex.P7/16.11.2010 :Rough sketch of the scene.

37 CC 28/2011, ACB COURT/VSP

Ex.P8/16.11.2010:Post trap proceedings (Mediators Report-II). Ex.P9/3.9.2011:Sanction order vide G.O.Ms.No.1683 Revenue (Vigilance-VII(2) Department.

Ex.P10/26.2.2011:Covering letter from Airtel, Hyderabad to ACB officials. Ex.P11/ - :Statement of call data furnished by Airtel services. Ex.P12/16.11.2010:Original FIR in Crime No.15/RCT-ACB/VZM/2010.

No.of Exhibits marked on defence side: Ex.D1/- :Relevant portion of Statement of PW4 u/s.161 Cr.P.C.,

No of Exhibits marked in “X” series:

Ex.X1/30.4.2011 :Attested copy of letter from Tahsilda, Bondapalli to DSP, ACB, Vizianagaram.

Ex.X2/ -:Attested copy of 1-B Register of Bondapalli Village regard S.NO.51/3.

Ex.X3/24.11.2010:Attested copy of statement of Dola Narayana Rao recorde dby Mandal Revenue Inspector.

Ex.X4/24.11.2010:Attested copy of report of Mandal Revenue Inspector, Bondapalli to Tahsildar, Bondapalli.

Ex.X5/-:Attested copy of Final Check Operation relating to S.No.51/3 and 51/4 of Bondapalli.

Material Objects marked:

M.O.1 :Sealed cover containing sample of Sodium carbonate powder packet used in pre trap proceedings.

M.O.2 :Sealed cover containing sample of Phenolphthalein Powder used in pre trap proceedings.

M.O.3:Sealed bottle containing resultant solution after conducting chemical test to right hand fingers of AO.

M.O.4:Sealed bottle containing Resultant solution after conducting chemical test to left hand fingers of AO.

M.O.5 :Tainted cash of Rs.1500/-.

M.O.6 :Sealed bottle containing resultant solution after conducting chemical test to surface of table drawer.

M.O.7:Sealed packet of sample of Sodium carbonate powder used in post trap proceeding.

III ADJ-CUM-SPL.JUDGE

FOR SPE & ACB/VSP

Copies to:

1.The Accused Officer.

2.The Deputy Superintendent of Police, ACB, Vizianagaram.

3.The Head of Department.

38 CC 28/2011, ACB COURT/VSP

JUDGMENT AND CALENDER

CALENDER CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-III ADDL.

DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM

C.C.28/2011

(Cr.No.15/RCT-ACB/VZM/2010) D A T E O F:

REPORT OF COMPLAINANT :15.11.2010 APPREHENSION OF ACCUSED :14.12.2011 RELEASE ON BAIL :22.11.2010 COMMENCEMENT OF TRIAL :10.06.2013 CLOSE OF TRIAL :11.03.2016 SENTENCE OR ORDER :04.05.2016

EXPLANATION FOR DELAY AND REMARKS:-

Accused Officer appeared and received copies of documents. Thereafter charges for the offence under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act against Accused Officer framed on 05.06.2012. Thereafter Pws.1 to 8 and DW1 are examined and Exs.P1 to P12, Ex.D1, Ex.X1 to X5 and MOs.1 to 7 are marked. Later Accused Officer is examined under section 313 Cr.P.C., Then the case is posted for defence evidence. No regular Officer to this Court is posted for five months. At last detailed oral arguments submitted on both sides. Prosecution submitted written arguments. Judgment is pronounced on 04.05.2016 and the Accused Officer is found guilty for the offence punishable under sections 7 and 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.

JUDGMENT AND CALENDER CASE NO.28/2011 ON THE FILE OF III ADDITIONAL

DISTRICT JUDGE-CUM-SPECIAL JUDGE FOR SPE AND ACB CASES,VISAKHAPATNAM

COMPLAINANT

State represented by the Inspector of Police, Anti-Corruption Bureau, Vizianagaram Range, Vizianagaram.

NAME OF THE ACCUSED:

Sri Ravipalli Sudhakara Rao, S/o Late Raminaidu, 50 years, VRO, Bondapalli, Cluster-II, O/o Tahsildar, Bondapalli Mandal, Vizianagaram District.

OFFENCE : U/secs.7 and 13(2) r/w sec.13(1)(d) of Prevention of Corruption Act, 1988. FINDING OF THE COURT: AO IS FOUND GUILTY U/secs.7 and 13(1)(d) r/w sec.13(2) of Prevention of Corruption Act, 1988.

S E N T E N C E: Accused Officer is FOUND GUILTY.

In the result, this Court holds that Accused Officer is found guilty for the offence punishable under sections 7 and 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988 and consequently convicted under Sec.248(2) Cr.P.C. for both the counts above. The accused officer is questioned about quantum of sentence, he stated that he has to look after the Education of his three children and prays mercy. Heard both sides. On considering the statement of accused officer about quantum of sentence mentioned above in the light of facts and circumstances of the case on hand and gravity of offence, this Court felt that it is not a fit case to invoke the provisions of 39 CC 28/2011, ACB COURT/VSP

PO Act and that Accused officer is sentenced to undergo R.I. for a period of two years and to pay fine of Rs.500/- (Rupees five hundred only) IDSI 30 days more for the offence punishable under Sec.7 of P.C.Act, 1988 and that Accused Officer is further sentenced to undergo R.I. for a period of two years and to pay fine of Rs.500/- (Rupees five hundred only) IDSI 30 days more for the offence punishable under Sec.13(2) read with Sec.13(1)

(d) of P.C.Act 1988. The substantive sentence of imprisonment awarded to accused officer for both counts above shall run concurrently. Total fine comes to Rs.1000/-. The detention period of accused officer in this case from 16.11.2010 to 22.11.2010 (both days inclusive) is ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to accused officer. Case property Mos.1 to 4, 6 and 7 vide item No.29/2013 of this Court is ordered to be destroyed on expiry of appeal time, whereas MO.5 cash of Rs.1500/- vide item No.59/2010 of this Court is ordered to be returned to DSP, ACB, Vizianagaram, on expiry of appeal time enable him to deposit the said amount to the concerned head of account of Government as bribe amount of Rs.1500/- was paid to PW1 by the investigating officer subsequent to trap by withdraw from the Government funds.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

1 CC 02/2014, ACB COURT/VSP

IN THE COURT OF SPECIAL JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

Present :- Sri K.Surya Rao Spl. Judge for SPE and ACB Cases, Cum-III Addl. District Judge, Visakhapatnam

Monday, this the 20th day of June, 2016

C.C.02/2014

(Cr.No.24/RCT-ACB-VSP/2011) Between: State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam. ….Complainant And: Sri Tsappati Viswanadham, S/o Rajalingam, 54 years, Addl. Mandal Revenue Inspector, O/o the Tahsildar, Makavarapalem, Visakhapatnam District, R/o D.No.38-29/8, Venkunaidupeta Street, Narsipatnam, Visakhapatnam District.

...Accused Officer

This case coming on 11.05.2016 and 10.6.2016 before me for final hearing in the presence of Ld.Special Public Prosecutor (Sri K.Ramakrishna) for Complainant- State and Sri S.Krishna Mohan, Ld. Advocate for the Accused Officer and having stood over for consideration till this day, this Court doth the following :

JUDGMENT

1. State represented by the Inspector of Police, Anti-Corruption Bureau,

Visakhapatnam filed charge sheet against Accused Officer (hereinafter referred as 'AO') in Crime NO.24/RCT-ACB-VSP/2011 for the offence punishable under sections 7, and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred as 'PC Act').

2.The case of the prosecution in precise as per charge sheet is that AO worked as Addl. Mandal Revenue Inspector in the office of the Tahsildar, Makavarapalem Mandal of Visakhapatnam District at relevant point of time of this case and that by virtue of post held by him and drawing salary from Government treasury, he falls under the definition of “public servant” as defined under section 2(c) of PC Act, 1988. The defacto complainant namely Sri Kommoju Venkata Suryam is a carpenter and resident of

Kothapalem Village, Makavarapalem Mandal, Visakhapatnam District and that

Government has acquired the land at Kothapalem Village through APIIC for establishing

ANRAK Aluminium Industry and that house site measuring 100 sq.yds., at Kothapalem

Village inherited to defacto complainant acquired by the Government for the said purpose and to compensate the same, allotted house site Ac.0.05 cents vide Plot No.34 in R.R.Colony, Thamaram Village and also cash of Rs.87,066/- to him and that RDO,

Narsipatnam on 09.06.2010 signed a cheque for the said amount towards the cash 2 CC 02/2014, ACB COURT/VSP component and entrusted the distribution of cheques to VRO by name G.Srinivasa Rao and that the said VRO did not handover the cheque to defacto complainant and kept it with him in spite of repeated visits of defacto complainant and that defacto complainant on 29.07.2011 approached the said VRO and asked to issue the cheque and that VRO handed over the cheque for Rs.87,066/-, dt.9.6.2010 and that the defacto complainant went to SBI Branch, Makavarapalem to encash the cheque but the bank officials informed that the said cheque was invalid and instructed to revalidate or obtain a fresh cheque and that the defacto complainant on 30.7.2011 approached RDO office,

Narsipatnam and made representation along with cheque and other documents for revalildation of the said cheque and that Senior Assistant by name S.L.V.Prasad in the office of RDO, Narsipatnam demanded defacto complainant a bribe of Rs.10,000/- and informed that on 5.8.2011 one Kommoju Manikyam of Kothapalem Village raised an objection not to issue cheque to defacto complainant and that RDO, Narsipatnam ordered for enquiry to Tahsildar, Makavarapalem and that the Tahsildar in turn entrusted to Addl. Mandal Revenue Inspector i.e., AO of this case to conduct enquiry and report and that AO verified when defacto complainant approached in the first week of

September 2011 and demanded PW1 to pay bribe of Rs.15000/- to submit his application to Tahsildar and that on bargain, AO reduced to amount of Rs.10,000/- on 1.10.2011 and that AO asked defacto complainant to bring bribe of Rs.10,000/- at DRDA office on 5.10.2011 at 10.00 a.m., and that unwilling to pay bribe amount, defacto complainant lodged a report to DSP,ACB, Visakhapatnam on 4.10.2011 at 11.00 hours and that on 5.10.2011, DSP, ACB after got verified and obtained permission from the competent authority, registered a report of defacto complainant as a case in Crime

No.24/RCT-ACB-VSP/2011 for the offence u/s.7 of PC Act, 1988 and thereafter laid trap and caught hold AO red handed, tested and recovered tainted amount of Rs.10,000/- in the presence of mediators under the cover of mediators report and arrested AO and produced before the Court for remand and that on completion of investigation and after obtain sanction order from the competent authority, filed charge sheet against AO in the

Court for the offence punishable u/s.7 and 13(1)(d) read with section 13(2) of PC Act 1988 and hence the charge.

3.On perusal of record, court took cognizance against AO for the offence punishable under sections 7 and 13(2) read with section 13(1) (d) of PC Act, 1988 on 3 CC 02/2014, ACB COURT/VSP 18.03.2014 and registered the case as CC 2/2014 and order summons to AO for appearance. After receipt of summons, AO appeared before the Court and engaged an

Advocate to defend him. Copies of documents supplied to AO under section 207 Cr.P.C., on 28.04.2014. Later AO is examined under section 239 Cr.P.C., on 12.10.2015. He denied the case of prosecution. After hearing, charges for the offence punishable u/s.7, and under section 13(1)(d) read with section 13(2) of PC Act 1988 against AO, have been framed read over and explained in Telugu for which AO pleaded not guilty and claimed to be tried and hence matter posted for trial.

4.During the course of trial, on behalf of prosecution, Pws.1 to 9 are examined. Ex.P1 to P18 are marked besides Mos.1 to 10. After closure of prosecution evidence, heard both sides on the questionnaire of examination under section 313

Cr.P.C., AO is examined u/s.313 Cr.P.C., on 11.4.2016 enable him to explain on the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. AO filed written statement along with copies of documents.

5. During defence evidence, AO got examined three witnesses as Dws.1 to 3 and marked Exs.X1 to X5. Written arguments on both sides filed besides detailed oral arguments.

6.The points for determination in this case are;

1) Whether the AO was public servant within the meaning of section 2(c) of

Prevention of Corruption Act, 1988 at relevant point of time of this case?

2) Whether sanction for prosecution of AO in this case is valid or not?

3) Whether prosecution has proved all the ingredients to constitute an offence punishable under section 7 of Prevention of Corruption Act, 1988 against AO beyond all reasonable doubts?

4) Whether prosecution has proved all the ingredients for the offence under section 13(1)(d) of Prevention of Corruption Act, 1988 against AO beyond all reasonable doubts? If so, AO is liable to punish u/s.13(2) of PC Act?

7. POINT NO.1: AO is not disputed this point. He admits that he was worked as

Additional Mandal Revenue Inspector of Makavarapalem Mandal of Visakhapatnma

District at relevant point of time of this case. Admittedly, he get salary from Government treasury. Therefore, for these reasons, AO comes within the definition of “Public Servant” as defined under section 2(c) of PC Act 1988 at the relevant point of time.

8. POINT NO.2: Section 19 of PC Act mandates previous sanction to prosecute a 4 CC 02/2014, ACB COURT/VSP public servant for the offences fall u/ss.7, 10, 11, 13 and 15 of PC Act. The said provision envisages that, no court shall take cognizance of an offence punishable u/ss.7 10, 11, 13 and 15 of PC Act alleged to have been committed by a public servant, except with the previous sanction. Section 19 (1)(d) of PC Act postulates that, in case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that

Government. Section 19(2) of PC Act envisages that, where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

9. The reason to confer the power by the legislature on the authority competent to remove the public servant from the office to grant sanction is discussed and hold by Hon'ble Supreme Court of India in the case in between R.S.Nayak vs.

A.R.Antulay1. The following principles observed in the case in between Mohd. Iqbal

Ahmed vs. State of A.P.,2, is as follows:

“......The legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that authority alone would be able, when facts and evidence are placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore permit inference to knowledge about the functions and duties of the office and its issue or abuse by the public servant. That is why the legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office”.

1 (1984) 2 SCC 183 = 1984 SCC (Cri) 172 2 (1979) 4 SCC 172 = 1979 SCC (Cri) 926 5 CC 02/2014, ACB COURT/VSP

10. The object underlying the said provision is to save the public servant from the harassment of frivolous or unsubstantiated allegations. This provision should not be an umbrella for protection of corrupt officers but a shield against reckless or malevolent harassment of official whose upright discharge of duties may provoke unpleasantness and hostility. The provision for sanction is like the keystone in the arch of enactment.

Remove the keystone of sanction and the arch crumbles. So grant of proper sanction by competent authority is a sine qua non for taking cognizance of the offence. The question of granting sanction is procedural in nature and does not involve any principles of substantive law and, therefore, error or procedure would always be subjected to overriding principles of failure of justice. The combined reading of sub sections (3) and (4) of Section 19 of the Act makes it clear that section 19 of the Act has an overriding effect on the provisions of the Criminal Procedure Code. Sub sections (3) and (4) of

Section 19 are introduced to the old provision under section 6 of PC Act 1947 by way of amendment to the Act by introducing new Act i.e., PC Act 1988. The effect of sub- sections (3) and (4) of Section 19 of the Act is of considerable significance . In sub- section (3), the stress is on “failure of justice” and that to “in the opinion of the Court”.

In sub-section (4), the stress is on raising the plea to the appropriate time. Significantly, the “failure of justice” is retable to error, omission or irregularity in the sanction.

Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in “failure of justice” or has been occasioned thereby, Section 19(1) is a matter of procedure and does not go to the root of jurisdiction. The question of sanction involves two aspects i.e, one relating to alleged lack of jurisdiction and the other relating to prejudice. Since the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration.

11. In fact for a sanction order no specific type, design, form or particular words 6 CC 02/2014, ACB COURT/VSP have been prescribed. Therefore, in accordance with the common sense and the requirements of justice, all that the order of sanction must show is that all the relevant materials were placed before the sanctioning authority and the said authority considered those materials and the order sanctioning the prosecution resulted therefrom and it should be clear from the order that the sanctioning authority considered the materials

before it and after consideration of all the circumstances of the case sanctioned the

prosecution. For the sanction to be valid it must be proved that the sanction was given in respect of the facts constituting offence charged. Therefore, a sanction to prosecute a particular person for an offence implies first a full knowledge of the facts upon which it is sought to prosecute him and secondly a deliberate decision of the sanctioning authority that he may be prosecuted. These two things are necessary to be proved before it can be said that a particular order amounts to sanction for prosecution. The facts constituting the offence should appear on the face of the sanction and where the facts constituting the offence do not appear on the face of the order of sanction for prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Therefore, act of giving sanction is not an act mechanical or stereotype act. Grant of sanction is an administrative function. It is the functions of the State Government and statutory in nature and not constitutional function. Therefore, it is not an idle formality. It is a statutory mandatory requirement.

12. As per section 19 of the Act, it is the duty of the prosecution to place material before the competent authority to issue sanction order against public servant.

In every individual case, the Court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or with hold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not mere formality.

Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

13. Grant of sanction is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. The rights of the AO have 7 CC 02/2014, ACB COURT/VSP to be kept in mind and safeguarded but they should not be over emphasised to the extent of forgetting that the victims also have certain rights.

14. The principle of law has been referred to by Hon'ble Supreme Court of India with approval, in Jaswant Singh vs. State of Punjab 3 .

15.Let this Court be considered the evolution of detail observations right from the privy counsel till this day on this aspect. The Privy Counsel as far back in 1948

Gokulchand Dwarkadas Morarka vs. King 4opinedthat the object of the provision for sanction is that the authority giving it should be able to consider for itself the evidence

before it comes to a conclusion that the prosecution in the circumstances be sanctioned

or forbidden.

16. It is further observed that the sanction to prosecute is an important matter.

It constitutes a condition precedent to the institution of the prosecution and the

Government have an absolute discretion to grant or withhold the sanction.

17. In the case in between Ayyasamy and another vs. State through Inspector of Police Vigilance and Anti-Corruption, Erode 5 , it is held thatwhen no material or document placed before sanctioning authority, sanction granted is invalid. In the case in between Har Bharosey Lal vs. State of U.P., 6it is held that, sanction order should reveal that there was prima facie evidence which prompted the authority to accord sanction.

18. State of Karnataka vs. Ameer Jan7. Wherein it is held that, application of mind on the part of the sanctioning authority is imperative. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority.

19. Central Bureau of Investigation vs. Ashok Kumar Aggarwal8 wherein the

Apex Court on land has been placed to point out the requisites for valid sanction and held that for valid sanction prosecution has to be established and satisfied court that entire material facts had been placed before sanctioning authority and that authority had applied its mind and granted sanction in accordance with law.

20. P.Chandra Sekhar Reddy vs. State of A.P. rep by its Special Public 3 AIR 1958 SC 124 4 (1947-48) 75 IA 30 = AIR 1948 PC 82 5 1996 CRI.L.J.119 (Madras High Court) 6 1988 CRI.L.J. 1122 (Allahabad High Court) 7 [2008] 1 SCC (Cri) 130 8 [2015] 1 Supreme Court Cases (Cri) 344 8 CC 02/2014, ACB COURT/VSP

Prosecutor, ACB, High Court of A.P., at Hyderabad 9wherein it is held that, Court has to consider whether non application of mind by the sanctioning authority before accord sanction order leads to failure of justice in view of sub sections (3) and (4) of Section 19 of the Act and also consider section 465 (2) of Cr.P.C.,

21. In the case in between State of Rajasthan vs. Tarachand 10 it is held that prosecution has to prove the signature on the sanction order and then the said sanction order was accorded by sanctioning authority after application of its mind.

22.The proportion of law in the referred decisions above holds good. As such, this Court has to scrutinize the evidence of PW7 coupled with the contents of Ex.P17 sanction order to determine whether Ex.P17 sanction order is in accordance with law and valid one or not.

23.Undoubtedly, the burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had given the sanction and reference to the facts on which the proposed prosecution was to be based. It is settled law that prosecution has to prove the signature on the sanction order and then the said sanction order was accorded by sanctioning authority after apply its mind to the facts of the case (State of Rajasthan vs.

Tarachand 11 ).

24. To discharge this burden, prosecution got examined the then Administrative

Officer (Revenue), Collector Office, Visakhapatnam as PW7 through whom Ex.P17 is marked. It is not the defence of AO that the authority who issued Ex.P17 GO has no jurisdiction to accord prosecution order against AO. The only defence raised by AO in attacking Ex.P17 is that prosecution did not submit all the material collected during investigation to the sanction authority and that the sanctioning authority had not applied its mind before grant prosecution sanction against AO.

25.PW7 stated that on 1.10.2013, they received Government memo No.41680/

Vig. VII (1) /2011-3 /Revenue (Vigilance- VII) dt:30-9-2013 directing District Collector,

Visakhapatnm to issue prosecution sanction order against P.Viswanadham AMRI in the office of Tahasildhar Makavarapalem ie., AO and that they also received final report of

DG/ ACB/ Hyderabad, Model sanction order, copy of FIR, Copies of mediators reports 1 9 [2009] 3 ALT (Cri) 210 10 AIR 1973 SC 2131=1972 Cr.L.J.1396 11 AIR 1973 SC 2131=1972 Cr.L.J.1396 9 CC 02/2014, ACB COURT/VSP and 2 along with above government memo. He further stated that after examining the same a note was put up before District collector, Visakhapatnam along with file and that

District collector, Visakhapatnam verified and approved the note and that thereafter he got prepared the proceedings of District collector, Visakhapatnam and that District collector, Visakhapatnam verified and signed the said proceedings dt:23-1-2014 ie

Ex.P17 and that one Soloman Arokia Raj is the then District Collector, Visakhapatnam.

PW7 further stated that he can identify the signature of the then District Collector,

Visakhapatnam and accordingly idenfied the signature on Ex.P17 is that of Soloman

Arokia Raj, the then District Collector, Visakhapatnam. As per Ex.P.17, District collector

Visakhapatnam accord sanction for prosecution of AO for the offence punishable U/sec.7 and sub section 2 of section 13 r/w clause (d) of sub section 1 of section 13 of PC Act 1988 and for any other cognate offences punishable under any other provisions of law for the time being in force.

26. During cross-examination, PW7 stated that sanction order file is to attend by

A2 Senior Assistant and that he has to verify the record and put up note and thereafter it will reach to RDO and then to Joint Collector and then to District collector. He admits the suggestion that the contents of paras 1 to 3 of Ex.P17 are based on the record. PW7 further stated that the details of material papers examined and verified are not mentioned in Ex.P17.

27.This Court already stated supra that in fact for the sanction order no specific type, design, form or particular words have been prescribed. Therefore, in accordance with the common sense and the requirements of justice, all that the order of sanction must show is that all the relevant materials were placed before the sanctioning authority and the said authority considered those materials and the order sanctioning the prosecution resulted therefrom. Court to consider whether Ex.P17 shows that the sanctioning authority considered the materials placed before it and form an opinion whether the allegations levelled against public servant are appeared to be genuine and thereby public servant has to liable to face prosecution in a competent court of law for the offence u/ss.7 and 13(1)(d) read with section 13(2) of PC Act and on plain perusal of

Ex.P17, it is evident and clear that it contains all necessary facts of the case levelled against AO and there upon sanctioning authority made an observation in Ex.P17 that the said acts of AO constitute an offence punishable u/ss.7 and 13(1)(d) read with section 10 CC 02/2014, ACB COURT/VSP 13(2) of PC Act (Central Act 49 of 1988). Ex.P17 further contains expressly that the then

District Collector ie., sanctioning authority being the competent to remove AO ie.,

Additional Mandal Revenue Inspector from the Government service, after full and careful

material placed before him in respect of above allegations and having regard to the facts and circumstances of the case, considered that the said AO should be prosecuted in a court of Law for the aforesaid offences and consequently accorded sanction prosecution of AO. No doubt Ex.P17 does not contain the details of the materials verified by the competent authority ie., the then District Collector, Visakhapatnam fully and carefully and came to an opinion that AO is liable to be prosecuted in the court of competent jurisdiction for the offence punishable under sections 7 and 13(2) read with section 13(1)

(d) of PC Act 1988. Ex.P17 sanction order is a speaking order. Therefore then the matter ends there. Otherwise evidence should be adduced to prove that the sanctioning authority had perused the material before according sanction which may not be in a particular form CBI vs. Muthuraman12. In the case on hand, Ex.P17 sanction order is a speaking order. So, there ends the matter. But any how, prosecution got examined the then Administrative Officer, Collector Office, Visakhapatnam as PW7 who categorically stated on oath that their office received all the relevant materials namely, copy of FIR, copies of mediators report I and II, final report from DG, ACB (which contains all the details of statements of witnesses and evidence collected during investigation etc.,) and then the then District Collector after gone through the said material full and carefully accorded sanction to prosecute the AO. What else is required to hold that prosecution placed sufficient evidence and established that Ex.P17 sanction order which is a speaking order, is in accordance with the law. Thereby it is valid one in compliance of mandatory provisions of section 19 of PC Act.

28. AO elicited during cross-examination of PW7 that Ex.P17 proceedings do not contain the specific words “Prima facie case is made out” and that Ex.P17 do not contain that the said order was dictated by the then Collector personally. PW7 further stated that their office file brought by him to the Court contains documentary evidence to prove his presence for preparation of Ex.P17 proceedings after approval of the draft proceedings by

District Collector. Ld.Advocate for AO verified the office file from the witness and kept quiet by simply put a suggestion denying the presence of PW7 for preparation of 12 1996 Cr.L.J.3638 at page 3640 (AP) 11 CC 02/2014, ACB COURT/VSP proceedings under Ex.P17. PW7 denied the said suggestion.

29.This Court already stated supra there is no specific type or particular form prescribed, at the same time statute did not mandate particular words or sentences should contain in sanction order particularly the words such as “prima facie case is made out” or “the grounds of prosecution” etc., Court has to consider the sum and substance the entire contents of the sanction order to determine whether sanctioning authority considered the entire materials and satisfied and came to an opinion about made out of case against AO for the offence u/ss.7 and 13(2) read with section 13(1)(d) of PC Act or not and that AO should be prosecuted or not. Simply because Ex.P17 do not contain specific words that “prima facie case is made out” and “the grounds for prosecution”,

Ex.P17 cannot be construed that it is not a valid one under law. This Court already considered the contents of Ex.P17 in the light of evidence of PW7 above and held that the sanctioning authority ie., the then District Collector, Visakhapatnam after full and carefully examined the material placed before him and formed an opinion about constitute of case against AO for the offences levelled by prosecution under the provisions of PC Act. Thereby, prosecution discharged its part of burden and established that Ex.P17 is valid sanction order under law against AO.

30. In fact, it is also to be noted that mere identification of an error or omission or irregularity in according the sanction by sanctioning authority is not enough but however, that identification must result in the failure of justice to the aggrieved person.

In the case on hand, AO failed to elicit any favourable evidence during cross examination of PW7 in what way Ex.P17 sanction order is not in accordance with the law or it contains an error of omission or irregularity leads to failure of justice to him. Further AO did not place any evidence on record in what way he would be prejudiced in defending him in the case on hand, on being court took cognizance against AO for the offence punishable u/ss.7, 13(2) read with section 13(1)(d) of PC Act based on. Ex.P17 which is prior sanction of prosecution of AO issued by the competent sanctioning authority ie., the then

District Collector, Visakhapatnam.

31. In fact sanction order is a public document. According of sanction is an official act of the authority who accords sanction and the Court may presume the fact that judicial and official acts have been regularly performed in terms of clause (e) of

Section 114 of the Evidence Act. The court must also presume until the contrary is 12 CC 02/2014, ACB COURT/VSP established that such authority will act fairly and objectively and will accord sanction only where he is satisfied that the charges against the public servant ie., AO requires to be enquired into by a Court. The authority is presumed to, and expected to, act consistent with public interest and the interest of law-both of which demand that while a public servant be not subjected to harassment, genuine charges and allegations should be allowed to be examined by the Courts. Both the considerations aforesaid should be present in the mind of the authority while deciding the question of grant of previous sanction required by Section 19 of the Act. The same is also fulfilled or satisfied by the prosecution on considering the contents of speaking order of sanction covered by Ex.P17 coupled with the evidence of PW7, the then Administrative Officer of Collector Office,

Visakhapatnam.

32. Sanction order is a public document within the meaning of section 74 of

Evidence Act. A public document is admissible per se without former proof Shyamala alias Kuladi vs. Sanjeeva Kumar and others 13 . Public document may be proved on its production. This should be done in two ways (i) by producing the original sanction which itself contains the facts constituting the offence and the ground of satisfaction and signature of sanctioning authority; and (ii) by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived at by it.

33. In the case on hand, prosecution filed original sanction order containing signature of competent sanctioning authority ie., the the District Collector,

Visakhapatnam and get it marked as Ex.P17 during evidence of PW7 who identified the signature of the then Collector, Visakhapatnam available on Ex.P17 being worked under him. Ex.P17 sanction order is a public document being filing under section 74 of Indian

Evidence Act and as such it can be proved by filing its original. It was signed by the then

District Collector, Visakhapatnam and thus, under law, by virtue of section 56 and 57 (7) of Indian Evidence Act, the Court shall be take judicial notice of the accession to office, name, titles, functions, and signatures of the persons filing for the time being any public office and under section 79 of the Indian Evidence Act, the court shall presume the genuineness purported to be a certified copy of other document which is by law declared to be admissible as evidence of fact. In fact the genuineness of the sanction order covered by Ex.P17 is not disputed by AO in the case. This court already discussed the 13 2009 (5) SCC 542 = 2009 (2) LS 166 13 CC 02/2014, ACB COURT/VSP evidence of PW7 and contents of Ex.P17 and held in clear terms supra that proseuciton not only by rely on presumption available under Indian Evidence Act regard public document which was not rebutted by AO but also by place oral evidence by examining the concerned Administrative officer, Collector office, Visakhapatnam as PW7 through whom the sanction order is marked as Ex.P17 which expressly is a speaking order and thereby prosecution discharged the burden of proof lies on its shoulder and established that the sanction order covered by Ex.P17 is in accordance with law and valid one.

34.POINT NOs.3 & 4: It is settled law that even with regard to the offences under PC Act 1988, prosecution has to prove the charges levelled against AO beyond all reasonable doubts like any other criminal offences and that the AO should be considered to be innocent till established or otherwise. In reiteration of the golden principle which runs to wad of administration of justice in criminal cases, the Apex Court on land in the case in between Sujit Biswas vs. State of Assam14 had held that, “suspicion, however grave, cannot take place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided”. Prosecution has to establish by cogent evidence the essential ingredients to constitute both the charges framed against AO in this case on hand.

35. The essential ingredients of section 7 of the PC Act are:

(i) that Accused Officer should have been a public servant;

(ii) that he must be shown to have obtained from any person, any gratification other than legal remuneration;

(iii) that the gratification should be a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function, favour or disfavour to any person.

In so far as Section 13(1)(d) of Act is concerned, the essential ingredients are,

(i) that AO should have been a public servant;

(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant; and

(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or 14 (2013) 12 SCC 406=2013 (7) SCJ 266 14 CC 02/2014, ACB COURT/VSP for any other persons.

36. In nutshell, prosecution has to prove the following points with yardstick “proof beyond all reasonable doubts”:

(i) AO was public servant at relevant point of time .

(ii) The demand and acceptance of bribe amount by AO.

(iii) Recovery of bribe amount from AO.

(iv) Existence of official favour with AO by the date of demand and trap.

37. Regard first point above, there is no dispute by AO in the case on hand.

Admittedly, he worked as Additional Mandal Revenue Officer in the office of Tahsildar,

Makavarapalem of Visakhapatnam District at relevant point of time of this case. By virtue of post held by AO and being get salary from Government treasury, he come under the definition of “public servant” is defined u/s.2(c) of PC Act 1988. The same is answered in point NO.1 supra.

38. To establish the element of “demand” and “acceptance” of bribe by AO, prosecution relied on the evidence of Pws.1 and 3 coupled with Ex.P3. PW1 is defacto complainant. PW3 is accompanying witness. Ex.P3 is report lodged by PW1 before

DSP,ACB, Visakhapatnam.

39. In so far offence u/s.7 of PC Act is concerned, in a trap case, prosecution has to by cogent evidence establish the demand and acceptance of bribe by accused to enable court to draw presumption under section 20 of PC Act. In so far as the offence under Section 7 of PC Act is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several Judgments of Hon'ble

Supreme Court of India. By way of illustration reference may be made to the decision in between C.M.Sharma vs. State of A.P., (2010) 15 SCC 1 = AIR 2011 SC 608 and

C.M.Girish Babu vs. C.B.I., (2009) 3 SCC 779 = AIR 2009 SC 2022.

40. The Hon'ble Apex Court on land in A.Subair vs. State of Kerala15 while dealing on the purport of statutory presumption of sections 7 and 13 (1)(d) of PC Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt 15 (2009) 6 SCC 587 = (2009) 3 SCC (Cri) 85 15 CC 02/2014, ACB COURT/VSP like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

41. In State of Kerala and another vs. C.P.Rao16 the Hon'ble Supreme Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. In the case in between

State of Punjab vs Madan Mohan Lan Verma 17 the Apex Court on land reiterated the very same principle observed in the above case and hold that, demand of illegal gratification is sine qua non for constituting an offence under the Act 1988 and mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe and that mere receipt of the amount by AO is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. In a recent enunciation by Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayaraj vs. State of A.P.,18 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 of the Act and not to those under Section 13(1)(d)(i)&(ii) of the

Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held 16 (2011) 6 SCC 450 = (2011) 2 SCC (Cri)) 2010 17 2013 CRI.L.J.4050 (SC) 18 2014 (2) ALD (Crl.) 73 (SC) = (2014) 13 SCC 55 16 CC 02/2014, ACB COURT/VSP that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

42. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the

Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13(1)(d) of the PC Act would not entail his conviction thereunder.

43. The Hon'ble Supreme Court of India followed the very same principle mentioned supra in a recent decision in between P.Satyanarayana Murthy vs. District

Inspector of Police, State of A.P., and another 19 . In the referred decision, defacto complainant died when the case reached for trial. Thereupon, prosecution could not examine the defacto complainant to prove the factum of demand of bribe by AO.

Prosecution got examined the trap witness accompanying the defacto complainant in trap as PW1. He stated that when complainant did hand over to accused, the renewal application, latter enquired from complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon complainant handed over

Rs.500/- to accused. The Lordships of Apex Court in the above decision held that, even if evidence of PW1 is accepted on the face value, it falls short of the quality and decisiveness of proof of demand of illegal gratification, to hold that offence under sections 7 or section 13(1)(d)(i) and (ii) of the Act has been proved. Consequently conviction ordered by first Appellate Court is reversed.

44.Recent Three Judges Bench of Hon'ble Supreme Court of India in the case in

Selvaraj vs. State of Karnataka 20 held that, recovery of tainted amount is not sufficient to convict the accused and demand has to be proved by adducing clinching evidence by prosecution. The Lordships of Hon'ble Supreme Court of India in the above case observed that, when the defacto complainant is not available for examination during trial, Court has to be cautious while sifting the evidence of other witnesses.

19 AIR 2015 SC 3549 = (2016) 1 Supreme Court Cases (Cri) 11 = (2015) 10 Supreme Court Cases 152 20 (2016) 1 Supreme Court Cases (Cri) 19 = (2015) 10 Supreme Court Cases 230 17 CC 02/2014, ACB COURT/VSP

45. With this background, if the case on hand is taken up to consider how far prosecution established the indispensable mandatory elements to constitute the offence under sections 7 and 13(1)(d) of the Act ie., demand and acceptance of bribe amount by

AO from defacto complainant, it is clear that prosecution got examined defacto complainant as PW1 and accompanying witness as PW3 and also relied on report given by the defacto complainant ie., Ex.P3 to DSP,ACB, Visakhapatnam and brought the criminal law into motion by got registered Ex.P3 report as a crime against AO.

46. As per case of prosecution regard element of demand of bribe, AO demanded bribe from defacto complainant in the first week of September 2011 at his office, again on 1.10.2011 at his office and also on 5.10.2011 at DRDA entrance gate,

Visakhapatnam. So, in this case, the initial demand made by AO for bribe amount from defacto complainant who is examined as PW1 is on two occasions ie., in the first week of

September 2011 and on 1.10.2011 whereas, the final demand of bribe by AO is on 5.10.2011 ie., on the date of trap. Prosecution further established that AO promised PW1 to do an official favour and that AO has received the bribe amount of Rs.10,000/- from

PW1 on 5.10.2011 at 11.00 a.m., at DRDA entrance gate, Visakhapatnam by place cogent evidence.

47. In the case on hand as per version of defacto complainant who is examined as PW1, he was demanded by AO to pay bribe amount initially in the first week of

September 2011 as well on 1.10.2011 and further demanded and accepted bribe amount on the date of demand ie., on 5.10.2011. AO denied the entire case of prosecution as well as version of PW1.

48. Before scrutiny of evidence of Pws.1 and 3 coupled with Ex.P3, it is better to consider the history of the case for better adjudication of the point on hand. The admitted facts are that AO was working as Additional Mandal Revenue Inspector in the office of Tahsildar, Makavarapalem Mandal, Visakhapatnam District at the relevant period and that State Government has acquired some land in Rachapalli and other villages for establishment of ANRAK Aluminium Industry and that the Land Acquisition Officer after holding enquiry has passed an Award under which PW1 was paid compensation of

Rs.87,066/- and also allotted house site of Ac.0.05 cents, Plot No.34 in RR Colony,

Thamaram Village in respect of acquisition of 100 sq.yds., site with thatched hut situated at Kothapalem village and that on 09.06.2010, RDO, Narsipatnam signed cheque for 18 CC 02/2014, ACB COURT/VSP

Rs.86,066/- in the name of PW1 towards compensation and handed over it to VRO by name G.Srinivasa Rao who was entrusted with work of distributing the cheques to the land or house sites losers and that the said VRO did not handover the said cheque to

PW1 and kept it with him and that on the request of PW1, VRO issued cheque on 29.07.2011 and that PW1 approached bank officials to encash the said cheque and that bank officials informed PW1 that the said cheque was invalid and instructed PW1 to get revalidate the same or obtain a fresh cheque and accordingly on 30.7.2011, PW1 went to the office of RDO, Narsipatnam and submitted representation ie., Ex.P1 along with said invalidate cheque and other documents for revalidation of the cheque and that Senior

Assistant by name S.L.V.Prasad, RDO Office, Visakhapatnam returned the original cheque to him by retain the copy of said cheque along with representation of PW1 and that he was informed in the office that on 5.8.2011 one Kommoju Manikyam of Kothapalem

Village raised an objection not to issue the cheque to PW1 and that on the said objection,

RDO Narsipatnam ordered for enquiry and entrusted it to Tahsildar, Makavarapalem

Mandal and that Tahsildar, Makavarapalem Mandal in turn ordered enqury to AO of this case who was working as Additional Mandal Revenue Inspector, Makavarapalem Mandal and thereafter PW1 met AO and then the issue on hand arise ie., demand and acceptance of bribe amount by AO to do official favour.

49. Regard initial demand of bribe in the first week of September 2011 and on 1.10.2011, Ld.counsel for AO raised defene of improbability of those two demands by relying on evidence elicited during cross-examination of PW1. During cross-examination of PW1, he stated that he met AO in his office soon after receipt of notice from AO for the purpose of enquiry in the first week of September 2011. Court has to consider whether there is possibility to AO to issue notice in the first week of 2011 itself when he was entrusted to enquire and report on the subject matter on 13.9.2011. PW2, the then

Tahsildar, Makavarapalem deposed that on 13.9.2011, he received Ex.P5 letter along with enclosures from RDO, Narsipatnam directing him to conduct an enquiry and submit report and that on the same day, PW2 endorsed to AO as “please conduct enquiry and submit report”. Ld.counsel for AO argued that as per evidence of PW2 till 13.9.2011, the office of Tahsildar, Makavarapalem is not aware of Ex.P1 letter and also the proposed enquiry being ordered by the RDO, Narsipatnam and that being the case how the AO can make the alleged demand of bribe in the first week of September 2011 itself. He further 19 CC 02/2014, ACB COURT/VSP argued that when the fact of ordering enquiry is not known to the office of Tahsildar,

Makavarapalem till 13.9.2011, how the AO can issue notice to PW1 or called PW1 to attend before him in the office in first week of September 2011 and so PW1 deposed falsehood against AO.

50. On scrutiny of evidence of PW1 coupled with Ex.P3, it is clear right from the beginning that PW1 stated in his chief examination itself that in the first week of

September 2011, AO called him to the office and that he went to the Tahsildar office,

Makavarapalem and showed xerox copies of cheque and his representation and that AO verified the papers and then AO demanded him to pay Rs.15,000/- as a bribe to submit enquiry report in his favour. As against the said evidence of PW1 during chief- examination, Ld.counsel for AO during cross-examination simply elicited from the mouth of PW1 that he met AO in his office soon after receipt of notice from him for the purpose of enquiry in first week of September 2011 by suggest the same to PW1 during cross- examination. So, AO called PW1 to the office in the first week of September 2011 either orally or by issue notice the fact remains that PW1 met AO in his office in the first week of September 2011 and showed photostat copies of invalidate cheque and his representation and that AO verified the same. If the said fact is not true and correct, AO should have put a suggestion by deny the same during cross-examination of PW1 that he neither called him into office nor issued any notice to PW1 for his appearance in the office in first week of September 2011. But no such suggestion is given by AO during cross- examination of PW1. AO denied the demand of bribe from PW1 on all three dates including initial demand in the first week of September 2011, but not denied approach of

PW1 before AO in the office and showed xerox copies of invalidate cheque and his representation in the first week of September 2011. If really, the said incident was not happened, there is no necessity to PW1 or prosecution to fabricate the same as the case of demand of bribe by AO from PW1 need not be relied on two or three initial dates to the actual incident of caught hold of AO red handed on the date of trap. Furthermore, there is no defence of AO in this case that PW1 got enmity with him. Under these circumstances, this court holds that there is no force in the arguments of AO regard improbability of initial demand of bribe by AO from PW1 in the first week of September 2011. Admittedly, AO was the Additional Mandal Revenue Inspector and he was the concerned employee to conduct enquiry and to report on any representation or petition 20 CC 02/2014, ACB COURT/VSP against issue of cheque to PW1 for compensation of acquisition of 100 sq.yds., house site by Government submitted to RDO, Narsipatnam, who was the then Land Acquisition

Officer for acquisition of subject property and in that connection AO might have secured the presence of PW1 in his office in advance and made deal with him to get a pecuniary advantage for himself or to get illegal gratification in exercise of his official duties.

Therefore, there is no surprise to consider the evidence of PW1 regard initial demand made by AO in the first week of September 2011 ie., prior to reach the subject file to AO for enquiry and report.

51. Ld. Advocate for AO argued that alleged second demand of bribe by AO from

PW1 on 1.10.2011 is also improbable to believe and relied on the evidence of PW1. PW1 deposed during his chief-examination that on 1.10.2011 AO asked him to meet him in the office and accordingly he met him in the office on 1.10.2011 and that AO reiterated the earlier demand of bribe amount and PW1 requested AO to reduce the bribe amount and then AO reduced the bribe amount to Rs.10,000/- and that AO informed PW1 that he has to bring the bribe amount of Rs.10,000/- at DRDA office, Visakhapatnam on 5.10.2011 in between 10.00 a.m., to 11.00 a.m., as AO has to attend meeting at DRDA office and that AO recorded the statement of PW1 ie., Ex.P2 on 1.10.2011 which was attested by PW2 and in fact AO do not aware that he was deputed to attend meeting at

DRDA office, Visakhapatnam on 5.10.2011. During cross-examination, PW1 stated that he has not disclose the name of the person to Dy.S.P., ACB through whom AO sent a message to him to meet him on 1.10.2011. Court has to consider whether AO is aware of the meeting on 5.10.2011 at DRDA office, Visakhapatnam even by 1.10.2011 itself.

Ld.Advocate for AO relied on the evidence of PW2, the then Tahsildar, Makavarapalem who deposed that on 5.10.2011 only the AO was deputed to attend DRDA office,

Visakhapatnam to furnish certain information with regard to caste census. Ld.Advocate for AO relied on the contents of Ex.P6 mediator report No.III which disclose that on 5.10.2011 only AO was deputed to attend the meeting at DRDA office, Visakhapatnam on that day. After relying on the evidence of PW2 and contents of Ex.P6, Advocate for AO argued that AO was deputed to attend meeting at DRDA office, Visakhapatnam on 5.10.2011 by inform to him on that day and that there is no evidence on record to show that AO was aware of the said meeting on 5.10.2011 at DRDA office, Visakhapatnam prior to 5.10.2011 particularly by 1.10.2011 itself and therefore, the evidence of PW1 21 CC 02/2014, ACB COURT/VSP that AO instructed him on 1.10.2011 to bring reduced bribe amount of Rs.10,000/- to

DRDA office, Visakhapatnam on 5.10.2011 in between 10.00 am., to 11.00 a.m., by saying that AO has to attend meeting at DRDA office, Visakhapatnam on 5.10.2011 is doubtful.

52. On careful scrutiny of evidence of Pws.1 and 2 and express contents of

Ex.P6 mediators report-III, it is clear that nowhere PW2 or Ex.P6 contained that AO was informed on 5.10.2011 itself by PW2 as the then Tahsildar, Makavarapalem directing AO to attend meeting at DRDA office, Visakhapatnam regard caste census or to say that AO was not aware about directing to AO to attend meeting at DRDA office, Visakhapatnam on 5.10.2011 prior to it particularly by 1.10.2011. Evidence of PW2 mentioned above do not convey that AO was informed on 5.10.2011 itself regard his deputation to attend the meeting at DRDA office, Visakhapatnam to furnish certain information regard caste census. Similarly, the contents of Ex.P6 mediators report-III do not convey the same meaning. In general, in our bureaucracy if any meeting was conducted at the headquarters of the District by call the concerned staff of Mandal offices, the same will be intimated in advance to Mandals enable the concerned staff of mandal office to prepare the required information or statement.

53. Court has to consider whether there was a meeting of PW1 and AO on 1.10.2011 or not. Ex.P2 statement of PW1 recorded by AO on 1.10.2011 which was attested by PW3 gives answer. It is not the case of AO that he did not record statement of PW1 on 1.10.2011. The version of AO is that he recorded the statement of PW1 at

Kothapalem village but not at office of Tahsildar, Makavarapalem. Whereas, PW1 and PW3 stated that AO recorded the statement of PW1 in the office of Tahsildar, Makavarapalem and the same is attested by PW3. In fact place of record of statement of PW1 by AO on 1.10.2011 is not important. But the fact remains that on 1.10.2011 PW1 and AO met each other. If that is so, there is no evidence placed by AO to disbelieve some part of evidence of PW1 regard event held between him and AO on 1.10.2011, reiteration of demand of bribe by AO from PW1 and reduced bribe amount from Rs.15,000/- to

Rs.10,000/- by AO on the request of PW1 and so also direction of AO to PW1 to bring reduced demand bribe amount on 5.10.2011 to DRDA office, Visakhapatnam at 10.00 a.m., as AO has to attend meeting there. This Court already stated supra that PW1 has no necessity to depose falsehood against AO as there is no prior enmity exist between 22 CC 02/2014, ACB COURT/VSP them. Adding to this, in continuation of evidence of PW1 regard initial demand of bribe by AO from him in the first week of September 2011 and on 1.10.2011, AO was caught hold red handed by ACB officials during trap on 5.10.2011. Moreover, the evidence of

PW1 coupled with Ex.P3 found convincing acceptable and inspiring confidence of the

Court regard initial demand of bribe by AO from PW1 on two occasions mentioned above which followed successful trap laid by ACB officials subsequent to registration of crime based on Ex.P3 report lodged by PW1.

54. No law prescribes quantity of evidence to prove a fact. Quality is criteria but not quantity regard evidence. No doubt, prosecution did not examine any other witness to corroborate the evidence of PW1 regard initial demand of AO in the first week of

September 2011 and on 1.10.2011, but in the case on hand, the evidence of PW1 is supported with Ex.P3 report. PW3 is not an accompanying witness to PW1 regard initial demands on two occasions stated above. Evidence of PW3 is helpful to prosecution to corroborate the evidence of PW1 regard demand and acceptance of bribe amount by AO on the date of trap ie., 5.10.2011. Therefore, court has to consider how far prosecution proved demand and acceptance of bribe amount by AO from PW1 on 5.10.2011 ie., on the date of trap. For which, the evidence of Pws.1 and 3 are important for consideration.

On scrutiny of evidence of Pws.1 and 3 both of them consistently stated on oath in one version and in support of case of prosecution. PW1 stated that he informed about bribe demanded by AO regard initial demand to PW3 and that on 4.10.2011 at about 11.00 am., PW1 went to the office of Deputy Superintendent of Police, Anti Corruption of

Bureau, Visakhapatnam and lodged a written report containing his signature ie., Ex.P3 and that the Dy.SP asked him to come to his office on 5.10.2011 along with proposed bribe amount of Rs.10,000/- at 8.00 a.m., and that on 5.10.2011 at about 8.00 a.m., he along with PW3 went to ACB office along with proposed bribe amount. PW1 (defacto complainant), PW3 (accompanying witness), PW5 (mediator) and PW8 (trap laying officer) categorically stated on oath in one version and in support of prosecution regard pre trap proceedings covered by Ex.P9. AO did not deny events took place at pre trap proceedings mentioned in Ex.P9 but denied the presence of PW3 at the time of pre trap proceedings. But nothing has been elicited by accused during cross-examination of Pws.1 and 3 as well as Pws.5 and 8 to doubt the presence of PW3 in pre and post trap proceedings. Presence of PW3 during pre and post trap proceedings is referred in Ex.P9 23 CC 02/2014, ACB COURT/VSP and P10 pre and post trap proceedings. Evidence of Pws.1, 3, 5 and 8 shows that pre trap proceedings covered by Ex.P9 prepared at ACB office, Visakhapatnam just prior to lay trap and whereas Ex.P10 post trap proceedings are prepared at the scene where at

ACB officials caught hold AO red handed and conducted chemical test and recovered the tainted amount. Thereby prosecution proved that Exs.P9 and P10 were drafted from stage to stage during pre and post trap proceedings at relevant places on the date of trap. Ex.P10 contains the acknowledgment of AO in token of receipt of its copy. Under these circumstances, presence of PW3 as accompanying witness during pre and post trap proceedings cannot be doubted.

55. PW1 stated that they all except constable who applied the phenolphthalein powder to the currency notes during pre trap proceedings left ACB office on the date of trap on completion of pre trap proceedings in vehicles and reached DRDA office,

Visakhapatnam at 10.45 a.m., and that DSP ie., PW8 asked Pws.1, 3 and Inspector

Nageswara Rao to get down the vehicles and reiterated earlier instructions to them and that Pws.1 and 3 proceeded on foot to the office of DRDA and that Inspector Nageswara

Rao followed them to some distance and stopped and that AO was not present at DRDA office and they waited for about 15minutes at main entrance gate of DRDA office and that AO came there and then PW1 wished AO and enquired about revalidation of the cheque and that then AO demanded bribe amount and verified from PW1 whether he brought bribe amount or not and that then he attempted to handover tainted amount of

Rs.10,000/- from his shirt pocket to AO and that AO asked him to kept the said amount in a zip bag hold by him and AO opened the centre zip of the bag and that as per instructions of AO, PW1 kept the tainted amount of Rs.10,000/- in the centre portion of the bag and that AO closed the zip of the bag and informed him that he will complete the enquiry report in his favour and asked him to leave the place and that by so saying AO proceed towards DRDA office, whereas PW1 gave signal to Nageswara Rao, Inspector by wiping his face with handkerchief and that immediately Dy.SP and raid party along with mediators came there and caught hold AO red handed and recovered the tainted amount from black colour zip bag of AO at his instance in the presence of mediators under the cover of Ex.P10.

PW3 accompanying witness stated that all of them started in two vehicles at about 10.35 am., and reached near by office of DRDA, Visakhapatnam at about 10.45 24 CC 02/2014, ACB COURT/VSP am., and that Dy.SP ie., PW8 asked him and PW1 to get down the vehicle and that PW8 reiterated earlier instructions to them and that they went to office of DRDA whereas

Inspector Nageswara Rao followed them and stopped at some distance and that they waited near gate of DRDA office for about 15 minutes and that AO came there and then they wished AO. PW1 asked AO regard revalidation of cheque and that AO enquired PW1 whether he brought demanded bribe amount and that PW1 gave positive reply and that on demand of bribe amount by AO, PW1 tried to handover tainted amount from his shirt pocket, AO asked PW1 to put the said amount in the hand bag and opened zip of central portion of the bag which was black in colour and that accordingly PW1 kept tainted amount in the said bag and that AO closed the zip of the bag and that AO gave assurance to PW1 that he will submit enquiry report in his favour to RDO., who in turn will issue revalidate cheque and that himself and PW1 came out and PW1 gave pre arranged signal to Inspector and thereby Dy.SP, mediators and staff came out and caught hold AO red handed and recovered the tainted amount of Rs.10,000/- from his hand bag of AO at his instance.

56. During cross-examination of Pws.1 and 3, AO did not elicit any material contradictions to discard their evidence. During cross-examination of PW1, AO got elicited that he has not mentioned in the report given to ACB officials that he was asked to come in between 10.00 a.m., to 11.00 a.m., (as stated during his chief-examination).

The suggestion put by AO to PW1 which is admitted by PW1 is important for consideration, such as “It is true that I have mentioned in the said report and statement u/sec.161 Cr.P.C., that I was asked to me at about 10.00 am”. So the evidence of PW1 that he was asked to come in between 10.00 a.m., to 11.00 am., as stated during cross- examination, cannot be considered as a material discrepancy or contradiction.

57. Any how, AO admitted the fact of his caught hold by ACB officials at DRDA entrance gate, Visakhapatnam on the date of trap but denied recovery of tainted amount from his possession. No doubt, chemical test conducted to both hand fingers of AO during post trap proceedings yield negative result but the chemical test conducted to the inner lining of hand bag of AO as well surface of papers which contact tainted amount inside the bag of AO yielded positive result evidenced by resultant solution covered by

Mos.6 and 7. Raid party seized black colour zip hand bag of AO which is marked as MO.8 besides bunch of papers which contact the tainted amount inside MO.8 bag are also 25 CC 02/2014, ACB COURT/VSP seized by trap party and marked as MO.9. The only defence raised by AO to attack recovery of tainted amount in the zip bag of AO is that remand report dt.6.10.2011 prepared by PW8 contains that the tainted amount, black colour zip bag of AO and connected records and articles were also seized from the residence of AO and office of

RDO, Narsipatnam and in such circumstances, case of prosecution regard recovery of tainted amount in black colour zip bag from AO at the scene of offence, has to be doubted. No doubt, remand report of AO submitted by PW8 to court on 6.10.2011 contains last three lines at page 3 as mentioned supra but some of the contents of remand report cannot be taken into consideration to determine any point. Court has to consider the entire contents of remand report to arrive at which place prosecution seized tainted amount and black colour hand bag of AO but not by taken into some lines isolately in the remand report. On considering the entire contents of remand report, the case of prosecution is so specific raid party members caught hold AO at the scene of offence ie., at the entrance gate of DRDA office, Visakhapatnam and on enquiry of AO about amount by Dy.SP, AO picked up amount from his black colour hand bag by open zip of center portion of the bag and then the mediators including PW5 verified the denomination and serial numbers of the currency and found tallied with details mentioned in Ex.P9 pre trap proceedings and then PW8, trap laying officer seized the marked currency ie., PW8 seized marked currency at the instance of AO from his hand bag on being opened and showed the said amount by AO. Later all of them went to the house of AO, where at ACB official seized the application of PW1 and connected record under Ex.P6. In fact the defence of AO in view of suggestion given to Pws is otherwise.

The said suggestion is as follows:

“It is not true to say that on 5.10.2011 when AO kept his bag on the wall and went for urinals and that when AO returned from urinals ACB officials surrendered him an took him to ACB office”.

58. The said suggestion is denied by Pws but the fact remains that AO in one way or other admitted holding of black colour hand bag with him at the time of trap by saying that he kept it on the wall and went to toilet and when from returned from toilets,

ACB officials did not seize black colour zip bag from his house during post trap proceedings. No such suggestion is given to Pws more particularly to PW8, trap laying officer. In the absence of such defence by AO, this Court finds that there is no water or 26 CC 02/2014, ACB COURT/VSP force in the argument of AO by relying on last three lines of remand report dt.6.10.2011 prepared by PW8.

59.One more defence raised by AO in this case is that this case was foisted and a false trap was laid against him and falsely implicated him in this case by PW1 in aspiration that AO might have submit enquiry report against PW1. The same is denied by

PW1. No favourable evidence is elicited by AO during cross-examination of PW1 in support of the said suggestion. At the same time, no positive evidence is placed during his turn of evidence in support of the said suggestion. Admittedly, no enqury report was submitted by AO to Tahsildar, Makavarapalem by the date of trap. He simply recorded statement of PW1 on 1.10.2011. In such circumstances, one cannot expect that AO was going to submit enquiry report against PW1.

60. Ld.Advocate for AO argued that statement of PW1 u/s.164 Cr.P.C., recorded by II Metropolitan Magistrate, Visakhapatnam contains that AO has telephoned to PW1 on 4.10.2011 and asked him to bring the bribe amount. But this is not stated by Pws.1 and 3 during their section 161 Cr.P.C., statements recorded by IO and the investigating officer did not call for cell phone call data of PW1 of the month of October 2011 to verify whether that part of section 164 Cr.P.C., statement is true or not.

61. No doubt, the investigating officer did not collect cell phone call data of PW1 for the month of October 2011, in pursuance of statement of PW1 recorded u/s.164

Cr.p.C., by II Metropolitan Magistrate, Visakhapatnam. But Court has to consider the use of statement of defacto complainant before Magistrate u/s.164 Cr.P.C., during the course of investigation. It is a settled law that statement of witness or defacto complainant recorded by Magistrate u/s.164 Cr.P.C., during the course of investigation of a case, cannot be taken as substantive piece of evidence. At best, it is a statement of defacto complainant or witness on oath recorded by Magistrate in the absence of accused during the course of investigation. As such, it has to be used for contradiction if any but not to take the portion of the said statement of a witness as true and correct or as substantive evidence. In fact statement of PW1 u/s.161 Cr.P.C., recorded by AO much earlier to the statement of defacto complainant recorded u/s.164 Cr.P.C., by II Metropolitan Magistrate,

Visakhapatnam do not contain those recitals, at the same time, defacto complainant after enter into witness box as PW1 did not say that AO made telephone to him on 4.10.2011 and asked him to bring the bribe amount (to DRDA office, Visakhapatnam). In 27 CC 02/2014, ACB COURT/VSP fact, Ex.P3 report given by PW1 to PW8 at earliest point of time ie., on 4.10.2011 itself contains that AO asked PW1 on 1.10.2011 to bring reduced demand bribe amount of

Rs.10,000/- to DRDA office at Visakhapatnam on 5.10.2011 as he has to attend a meeting at DRDA office, Visakhapatnam on 5.10.2011 morning. In other words, either prosecution or PW1 did not rely in the case on hand regard alleged allegation that AO made telephone to PW1 on 4.10.2011 and asked him to bring bribe amount (to DRDA office, Visakhapatnam). In such circumstances, there is no necessity to investigating officer of this case to collect cell phone call data of PW1 for the month of October, 2011.

PW1 denied the suggestion during his cross-examination that he stated before II

Metropolitan Magistrate, Visakhapatnam while recording the statement u/s.164 Cr.P.C., that he received telephone call from AO on 4.10.2011 and asked him to bring bribe amount (to DRDA office, Visakhapatnam). Under these circumstances, no much importance be given to the statement of PW1 before II Metropolitan Magistrate,

Visakhapatnam u/s.164 Cr.P.C., regard made telephone by AO to PW1 on 4.10.2011 and asked him to bring bribe amount. The entire case of prosecution as well as vacation of

PW1 right from the beginning regard demands of bribe amount made by AO from PW1 is on three occasions ie., on first week of September 2011, on 1.10.2011 and finally on 5.10.2011 ie., on the date of trap. The same is also established by prosecution by place cogent evidence by examining the victim ie., defacto complainant as PW1 and Ex.P3 and proved initial demand of bribe amount by AO on first two occasions and by place evidence of PW1 coupled with evidence of PW3 regard demand and acceptance of bribe amount of Rs.10,000/- by AO from PW1 on the date of trap. There are no money transactions pending in between PW1 and AO. The tainted amount of Rs.10,000/- was with PW1 just prior to recover of it from AO on the date of trap. So if it is not towards bribe amount, AO has to account for satisfactorily with proper explanation. For which, AO did not give any explanation regard holding of tainted cash with him by the time of caught hold him by ACB officials in the presence of mediators during post trap proceedings on 5.10.2011. Thereby prosecution proved indispensable mandatory elements of demand and acceptance of bribe amount of Rs.10,000/- by AO from PW1 beyond all reasonable doubts. Prosecution has also proved the fact of recovery of marked amount from AO. Therefore, prosecution can safely rely on statutory presumption u/s.20 of PC Act. The said presumption is that AO being a public servant accepted gratification 28 CC 02/2014, ACB COURT/VSP other than legal remuneration and 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 of the Act. The said presumption is a rebuttable presumption. AO has to rebut it either by elicit favourable evidence during cross-examination of Pws or by place positive evidence as defence with yardstick of preponderance of probabilities but not beyond all reasonable doubts as lies on the shoulders of prosecution to prove the criminal charge.

62. AO got examined three defence witnesses and marked Exs.X1 to X5 in this case and tried to prove that PW1 is not resident of Kothapalem of Makavarapalem Mandal and he had no house site with thatched hut and he is not entitled for compensation from

Government on acquire the subject house site. DW1 is the then Spl.Deputy Collector- cum-R&R, Atchutapuram of Visakhapatnam District. Ex.X1 is marked through him. Ex.X1 is attested true copy of letter dt.13.1.2015 by Spl.Grade Dy.Collector, A.P.I.I.C,

Atchutapuram to Kommoji Manikyam and Kommoji Venkata Suryam ie., PW1. As per

Ex.X1, it is mentioned that since dispute is pending, the concerned has to approach Civil

Court for adjudication of title and to receive compensation amount of acquired land.

Ex.X1 contains the address of PW1 as Door NO.22-19-6, Dr.Ambedkar Colony, Gajuwaka,

Visakhapatnam. Without prejudice to the defence raised by AO whether PW1 is not entitled for compensation amount or Kommoji Manikyam is entitled for compensation for acquisition of subject house site, this Court being a Special Judge for ACB cases,

Visakhapatnam while deciding the charges levelled against a public servant formerly worked as Additional Mandal Revenue Inspector of Makavarapalem Mandal for the offence u/ss.7 and 13(1)(d) read with section 13(2) of PC Act, this Court earnestly feel that the point of ownership of subject land is not the matter for adjudication in the case on hand.

At the same time, whether Special Grade Deputy Collector, A.P.I.I.C., Atchutapuram got right to refer the issue by holding that the concerned has to approach the civil court in view of dispute between PW1 and Manikyam regard ownership of the subject land by issue orders ie., original of orders of Ex.X1 is legally tenable or not, is not the point to be determined by this Court in criminal case against public servant. The facts of the case on hand disclose that originally Land acquisition officer after acquire the land and made an enquiry and passed awards and in such award, Land acquisition officer granted 29 CC 02/2014, ACB COURT/VSP compensation for acquisition of 100 sq.yds., house site in favour of PW1 by give cash compensation as well as plot in R.R.Colony, Thamaram Village and issued a cheque for cash compensation. The said cheque was invalidate by the time it was given to PW1 from the concerned VRO and by the time PW1 brought it to the bank for encashment. As such, the bank officials advised PW1 either to obtain revalidate cheque or fresh cheque from

Government for compensation amount. Evidence of PW4 proved the same. In view of issuance of cheque by Government for compensation of land after conduct enquriy, the proceedings before LAO comes to an end. Revalidation of cheque is only an administrative act. At that time, LAO or Spl.Grade Dy.Collector, APIIC, Atchutapuram got right to issue orders under original of Ex.X1 or not, is left opened in this case, since it is not relevant for adjudication of charges levelled against public servant ie., AO. DW2 is no other than the Election Dy.Tahsildar, GVMC, Gajuwaka Assembly segment. Ex.X2 and X3 are marked through him. Ex.X2 is attested true copy of voter list of the year 2015. Ex.X3 is attested true copy of voter list of the year 2016. No doubt, Ex.X2 and X3 disclose that the address of PW1 may be at Gajuwaka, but it does not mean that PW1 is no way concerned to Kothapalem village or subject land by the time of acquisition which took place long back. DW3 is Dy.Tahsildar in the office of RDO, Narsipatnam. He gave evidence based on file and he has no personal knowledge about the record. The record produced by him contains a report dt.31.7.2013 submitted by the then RDO,

Narsipatnam to District Collector, Visakhapatnam on the complaint filed by Kommoju

Venkata Suryam ie., PW1. The said file further contains copy of order dt.29.1.2016 of

Hon'ble Lokayukta on the complaint of PW1, resident of Kothapalem. Thereafter, DW1

was recalled and further examined and got marked Exs.X4 and X5. Ex.X4 is attested copy to copy of report of RDO, Narsipatnam addressed to District Collector,

Visakhapatnam, whereas Ex.X5 is attested copy to copy of order of Lokayukta dt.29.1.2016. Exs.X1 to X5 are subsequent to trap of AO by ACB officials in this case.

63. Any how, this Court already held supra that the point whether PW1 was resident of Kothapalem village and owner of subject house site or Kommoji Manikyam was owner of the said site, is not important for adjudication. In the case on hand, the only point to be considered by the Court whether prosecution has established the essential ingredients to constitute an offence punishable u/ss.7 and 13(1)(d) read with section 13(2) of PC Act against AO beyond all reasonable doubts or not. Admittedly, AO 30 CC 02/2014, ACB COURT/VSP was Additional Mandal Revenue Inspector of Makavarapalem Mandal at relevant point of time in this case. The evidence of PW2, the then Tahsildar, Makavarapalem who deposed that he received letter from RDO, Narsipatnam along with enclosures ie., Ex.P5 and he made endorsement to AO as “Please conduct enquiry and submit report” and thereafter, he did not receive report from AO till the date of trap. It shows that existence of an official favour to PW1 is pending with AO as on the date of demands of bribe amount and trap. Under these circumstances, the enquiry conducted by Revenue Officials for revalidation of cheque to PW1 and on the complaint of Kommoji Manikyam subsequent to trap and issuance of orders under original of Ex.X1, are not much important for consideration and hence left open it in this case.

64. Ld.counsel for AO relied on a decision in a case in between Karri Venkata

Rama Reddy vs. State of Andhra Pradesh 21 wherein it is held that, no official favour pending with AO by date of alleged demand and trap. Thereby hold that conviction recorded and sentence imposed by trial Court is set aside and order acquitted AO for the charges levelled against him for the offence punishable u/ss.7 and 13(2) r/w.13(1)(d) of

PC Act.

65. With due respect to the proportion of law in the referred decision, if this court considered facts and circumstances of the case on hand and in the referred decision, they distinguishable to each other in the case on hand. This Court already held by considering the evidence of PW2 and seizure of Exs.P12 to P14 including Ex.P1 from possession of AO during post trap proceedings that prosecution proved existence of official favour with AO as on the dates of demand and trap, whereas in the referred decision after discussing the evidence therein, hold that no official favour pending with

AO by the date of alleged demand and trap. Hence AO in this case did not gain any benefit by rely on the aforesaid decision to over come from charges levelled against him.

66. On summarizing the defence evidence adduced by AO in this case and on considering the cross-examination portion of Pws made by AO, this Court holds that AO did not elicit any favourable evidence during cross-examination of Pws and at the same time did not place any positive evidence to rebut the presumption u/s.20 of PC Act.

Therefore, the said presumption remains as unrebutted and favours the case of prosecution. On the other hand, prosecution placed acceptable evidence by examining 21 2015 (1) ALD (Crl.) 833 31 CC 02/2014, ACB COURT/VSP the then Tahsildar, Makavarapalem as PW2 by seizure of Exs.P12 to P14 including Ex.P1 from possession of AO during post trap proceedings in the presence of PW5 and another mediator and established the existence of official favour with the hands of AO as on the date of demand and trap and thereby established that AO demanded and accepted bribe amount to do official favour to PW1, taking advantage of his possession as public servant. Thereby, prosecution proved all ingredients to constitute an offence punishable u/s.7 of PC Act as well as 13(1)(d) read with section 13(2) of PC Act, beyond all reasonable doubts, consequently, AO is liable to punish for both the counts.

67. Case properties Mos.1 to 4, 6 to 10 vide item No.2/2016 of this Court, are liable for destruction on expiry of appeal time. Similarly, MO.5 cash of Rs.10,000/- vide item No.48/2011 of this Court, is liable to order to return the same to Dy.SP, ACB,

Visakhapatnam directing him to deposit the same in concerned head of account of

Government, as it is brought to the notice of Court that the investigating officer of ACB reimbursed bribe amount of Rs.10,000/- to PW1 subsequent to trap by withdraw the amount from Government account during the course of investigation of this case.

68.In the result, Accused Officer is found guilt for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and consequently convicted under Sec.248(2) Cr.P.C. for both the counts above.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 20th day of June, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

69.When accused officer is questioned about quantum of sentence, he stated that he reached 60 years age and has to look after his parents and wife and prays mercy.

70. Heard both sides. On considering the statement of accused officer regard quantum of sentence mentioned above in the light of facts and circumstances of the case on hand and gravity of offence, this Court feel that it is not a fit case to invoke the provisions of PO Act and that Accused officer is sentenced to undergo R.I. for a period of three years and to pay fine of Rs.5000/- (Rupees five thousand only) IDSI 60 days for the offence punishable under Sec.7 of P.C.Act, 1988 and further sentenced to undergo

R.I. for a period of three years and to pay fine of Rs.5000/- (Rupees five thousand only)

IDSI 60 days for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of 32 CC 02/2014, ACB COURT/VSP

P.C.Act 1988.

71. The substantive sentence of imprisonment awarded to accused officer for both counts above shall run concurrently.

72. Total fine comes to Rs.10,000/-.

73.The detention period of accused officer in this case from 5.10.2011 to 14.10.2011 (both days inclusive) is ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to accused officer.

74.Mos.1 to 4 and 6 to 10 vide item No.2/2016 of this Court, are ordered for destruction on expiry of appeal time. MO.5 cash of Rs.10,000/- vide item No.48/2011 of this Court, is ordered to return to Dy.SP, ACB, Visakhapatnam directing him to deposit the same in concerned head of account of Government, on expiry of appeal time.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 20th day of June, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

On behalf of Prosecution:

PW1: K.Venkata Suryam (defacto complainant) PW2: M.Appa Rao, (the then Tahsildar, Makavarapalem Mandal). PW3 : K.Umamaheswarachari (accompanying witness of PW1 in trap). PW4 : A.V.M.Madhu, (the then Branch Manager, State Bank of India, Makavarapalem Branch). PW5 : P.Purushotham (Mediator of Pre and Post trap proceedings). PW6 : R.Kurmanath (Project Director, DW, MA, Srikakulam). PW7 : Satti Nageswara Reddy (the then Administrative Officer (Revenue), Collector office, Visakhapatnam). PW8 : K.V.Ramakrishna Prasad (the then Dy.SP, ACB, VSP/Trap laying officer). PW9 : B.V.S.Nageswara Rao (the then Inspector of Police, ACB, Visakhapatnam).

On behalf of Defence:

DW1 : Narasimhamurthy Patnaik (Dy.Tahsildar on contract basis in the office of Spl.Dy. Collector-cum-R&R, Atchutapuram).

DW2:V.Srinivasa Rao (Election Dy.Tahsildar, GVMC, Gajuwaka).

DW3:B.Barathkumar (Dy.Tahsildar, L.R.T.).

33 CC 02/2014, ACB COURT/VSP

No.of Exhibits marked on prosecution side:

Ex.P1/30.7.2011: Representation of PW1 along with enclosures.

Ex.P2/1.10.2011 : Statement of PW1 recorded by AO.

Ex.P3/4.10.2011: Report of PW1

Ex.P4/-: Portion of signature of PW1 in Statement u/s.164 Cr.P.C.,

Ex.P5/30.8.2011: Photostat copy of letter from RDO, Narsipatnam to Tahsildar, Makavarapalem along with enclosures.

Ex.P6/5.10.2011: Mediators report-III

Ex.P7/ -: Portion of signature of PW3 on statement u/s.164 Cr.P.C.,

Ex.P8/5.10.2011: Copy of FIR and report attested by PW5 and another mediator Ex.P9/5.10.2011: Pre trap proceedings/mediators report-I. Ex.P10/5.10.2011: Post trap proceedings/mediators report-II. Ex.P11/5.10.2011: Rough sketch of scene. Ex.P12/ - : Made up file containing photostat copy of letter etc.,including Ex.P1 etc., Ex.P13/ -: Made up file containing photostat copy of cheque book and acquittance register of beneficiaries. Ex.P14/ - : Made up file containing Exs.P2 and P5. Ex.P15/ - : Attendance register in the office of Tahsilda, Makavarapalem. Ex.P16/5.8.2011: Petition submitted by Kommoji Manikyam. Ex.P17/23.1.2014: Proceedings of sanction order by District Collector, Visakhapatnam. Ex.P18/5.10.2011: Original FIR in Crime No.24/RCT-ACB/VSP/2011.

No.of Exhibits marked in “X” series:

Ex.X1/13.1.2015: Attested true copy of letter in Rc.No.45/2014/R&R. Ex.X2/- : Attested true copy of voter list of the year 2015. Ex.X3/- : Attested true copy of voter list of the year 2016. Ex.X4/31.7.2013: Attested copy of report in Rc.No.2339/2011/A of RDO, Narsipatnam. Ex.X5/29.1.2016: Attested copy of order of Lok Aayukta in complaint case No.2134/2013

Material Objects marked:

M.O.1 : One sealed cover containing sample packet of Sodium carbonate powder used in pre trap proceedings. M.O.2 : One sealed cover containing sample packet of Phenolphthalein Powder used in pre trap proceedings. M.O.3 : One sealed bottle containing resultant solution collected after conducting chemical test to the right hand fingers of AO.

34 CC 02/2014, ACB COURT/VSP

M.O.4: One sealed bottle containing resultant solution collected after conducting chemical test to the left hand fingers of AO. M.O.5:Tainted cash of Rs.10,000/-.

M.O.6:One sealed bottle containing resultant solution collected after conducting chemical test to the inner lining of black colour zip hand bag of AO. M.O.7:One sealed bottle containing sesultant solution after conducting chemical test to the inner surface of bunch of papers. M.O.8 : Blank colour zip hand bag with stationery material.

M.O.9 : Bunch of papers seized from MO8.

M.O.10: One sealed packet of sample of Sodium carbonate powder used in post trap proceedings.

III ADJ-CUM-SPL.JUDGE

FOR SPE & ACB/VSP Copies to:

1. The Accused Officer.

2. The Deputy Superintendent of Police, ACB, Visakhapatnam.

3. The Head of the Department.

35 CC 02/2014, ACB COURT/VSP

JUDGMENT AND CALENDER

CALENDER CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-III ADDL.

DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM

C.C.02/2014

(Cr.No.24/RCT-ACB-VSP/2011) D A T E O F:

REPORT OF COMPLAINANT : 04.10.2011 APPREHENSION OF ACCUSED : 28.04.2014 RELEASE ON BAIL : 14.10.2011 COMMENCEMENT OF TRIAL : 28.12.2015 CLOSE OF TRIAL : 28.03.2016 SENTENCE OR ORDER : 17.06.2016

EXPLANATION FOR DELAY AND REMARKS:-

Accused Officer appeared and received copies of documents. Thereafter charges for the offence under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act against Accused Officer framed on 12.10.2015. PW1 to PW9 are examined and Exs.P1 to P18, besides MOs.1 to 10 are marked. Then the case is posted for defence evidence. DW1 to DW3 are examined and Ex.X1 to X5 are marked. Later Accused Officer is examined under section 313 Cr.P.C., At last detailed written arguments submitted on both sides besides detailed oral arguments. Judgment is

pronounced on 17.06.2016 and the Accused Officer is found guilt for the offence

punishable under sections 7 and 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.

JUDGMENT IN CALENDER CASE NO.2/2014 ON THE FILE OF III ADDITIONAL DISTRICT

JUDGE-CUM-SPECIAL JUDGE FOR SPE AND ACB CASES,VISAKHAPATNAM

COMPLAINANT

State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam.

NAME OF THE ACCUSED:

Sri Tsappati Viswanadham, S/o Rajalingam, 54 years, Addl. Mandal Revenue Inspector, O/o the Tahsildar, Makavarapalem, Visakhapatnam District, R/o D.No.38-29/8, Venkunaidupeta Street, Narsipatnam, Visakhapatnam District.

OFFENCE : U/secs.7 and 13(2) r/w sec.13(1)(d) of Prevention of Corruption Act, 1988. FINDING OF THE COURT: AO IS FOUND GUILT U/secs.7 and 13(1)(d) r/w sec.13(2) of Prevention of Corruption Act, 1988.

S E N T E N C E: Accused Officer is FOUND GUILTY.

In the result, Accused Officer is found guilt for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and consequently convicted under Sec.248(2) Cr.P.C. for both the counts above. When accused officer is questioned about quantum of sentence, he stated that he reached 60 years age and has to look after his parents and wife and prays mercy. Heard both sides. On considering the statement of accused officer regard quantum of sentence mentioned above in the light of facts and circumstances of the case on hand and gravity of offence, this Court feel that it is not a fit case to invoke the provisions of PO Act and that Accused officer is sentenced to undergo R.I. for a period of three years and to pay fine of Rs.5000/- (Rupees five thousand only) IDSI 60 days for the offence punishable under Sec.7 of P.C.Act, 1988 and further sentenced to undergo R.I. for a 36 CC 02/2014, ACB COURT/VSP period of three years and to pay fine of Rs.5000/- (Rupees five thousand only) IDSI 60 days for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of P.C.Act 1988. The substantive sentence of imprisonment awarded to accused officer for both counts above shall run concurrently. Total fine comes to Rs.10,000/-. The detention period of accused officer in this case from 5.10.2011 to 14.10.2011 (both days inclusive) is ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to accused officer. Mos.1 to 4 and 6 to 10 vide item No.2/2016 of this Court, are ordered for destruction on expiry of appeal time. MO.5 cash of Rs.10,000/- vide item No.48/2011 of this Court, is ordered to return to Dy.SP, ACB, Visakhapatnam directing him to deposit the same in concerned head of account of Government, on expiry of appeal time.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

1 CC 17/2013, ACB COURT/VSP

IN THE COURT OF SPECIAL JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

Present :- Sri K.Surya Rao Spl. Judge for SPE and ACB Cases, Cum-III Addl. District Judge, Visakhapatnam

Friday, this the 15th day of July, 2016

C.C.17/2013

(Cr.No.22/RCT-ACB-VSP/2011) Between: State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam. ….Complainant And: Sri Muttireddy Srinivasa Rao, S/o late Satyanarayana, 47 years, A.C.T.O., Maharanipeta Unit, O/o C.T.O., Chinawaltair Circle, VUDA Building, Siripuram, Visakhapatnam.

...Accused Officer

This case coming before me on 23.06.2016 and 12.7.2016 for final hearing in the presence of Ld.Special Public Prosecutor (Sri K.Ramakrishna) for Complainant- State and Sri G.V.P.B.S.N.Murthy, and Smt.M.Nagasudha, Ld.Advocates for Accused Officer and having stood over the matter for consideration till this day, this Court doth the following :

JUDGMENT

1. State represented by Inspector of Police, Anti-Corruption Bureau,

Visakhapatnam filed charge sheet against Accused Officer (hereinafter referred as 'AO') in Crime NO.22/RCT-ACB-VSP/2011 for offence punishable under sections 7, and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred as 'PC Act').

2.The factual matrix of the case of prosecution in nutshell is that defacto complainant namely Talla Jagannadha Rao, resident of Ramajogipeta, Visakhapatnam intended to do business of Electronics goods and applied for registration certificate (VAT & CST) to the Assistant Commercial Tax Office (ACTO) on 23.09.2011 along with relevant documents and that he met AO on the same day at his office and then AO demanded to pay bribe of Rs.10,000/- to issue Registration Certificate (RC) and that defacto complainant is not interested to pay the bribe, he returned back and that on the same day evening, the AO visited business premises of defacto complainant and inspected the site and that again on 28.09.2011 defacto complainant met AO and asked about the status of his Registration Certificate and that AO again demanded him to pay bribe amount of Rs.10,000/- and warned him that RC will not be issued unless demanded bribe is paid and that on his request, AO reduced bribe amount to Rs.8000/- and insisted him to pay the said amount on 29.09.2011 afternoon and that since defacto complainant 2 CC 17/2013, ACB COURT/VSP is unwilling to pay bribe amount, lodged a written report on 28.09.2011 at 9.00 p.m., with DSP,ACB, Visakhapatnam and that DSP,ACB, Visakhapatnam registered the said report as a crime after got verification of genuineness of the contents of the report and antecedents of suspector employee and after obtain permission from competent authority on 29.9.2011 at 1.00 p.m., vide crime No.22/RCT-ACB-VSP/2011 for the offence u/s.7 of PC Act 1988 and made all necessary arrangements for trap and that in that course on 29.9.2011, DSP,ACB secured two mediators and conducted pre trap proceedings in his office room and got applied phenolphthalein powder to proposed bribe amount of Rs.8000/- brought by the defacto complainant under cover of pre trap proceedings/mediators report I from 1.00 p.m., to 3.00 p.m., and then all of them proceeded to office of AO and DSP,ACB along with mediators and staff took in vantage position nearby whereas defacto complainant proceeded to office of AO located in fourth floor, VUDA building in Siripuram followed by inspector and that after receive pre arranged signal, DSP,ACB and trap party members rushed to room of AO by ask defacto complainant to wait outside office of ACTO and that DSP,ACB conducted chemical test to both hand fingers of AO and that the right hand fingers of AO gave positive result whereas left hand fingers of AO gave negative result in the chemical test and that

DSP,ACB recovered the tainted money of Rs.8000/- from the files in the rack behind seat of AO at the instance of AO, in the presence of mediators and that the files in the rack and papers in the office drawer which contact with tainted amount which also subject for chemical test and yield positive result and that DSP seized incriminating documents under post trap proceedings and arrested AO and produced before Court with remand report and thereafter on completion of investigation and after obtained sanction order vide G.O.Ms.No.555, dt.1.11.2013, charge sheet is filed against AO in the court and hence the charge.

3.On perusal of charge sheet and material papers, this Court took cognizance for the offence punishable u/ss.7 and 13(2) read with section 13(1)(d) of PC Act,1988 against AO and order summons to AO for appearance. On receipt of summons, AO appeared through Ld.advocates before court and received copies of documents u/s.207 of Cr.PC., on 3.1.2014. Later, AO is examined u/s.239 of Cr.P.C., on 5.5.2014. He denied the case of prosecution. Heard both sides. Charges for the offence punishable u/ss.7 and 13(2) read with section 13(1)(d) of PC Act 1988 against AO have been framed read over 3 CC 17/2013, ACB COURT/VSP and explained in Telugu for which AO pleaded not guilty and claimed to be tried. Hence the matter posted for trial.

4.During the course of trial, on behalf of prosecution, Pws.1 to 6 are examined. Ex.P1 to P11 are marked besides Mos.1 to 10. On completion of prosecution evidence, heard both sides on the questionnaire for examination u/s.313 of Cr.P.C., and then AO is examined u/s.313 Cr.P.C., on 6.4.2016 enable him to explain on the incriminating material found against him in the evidence of prosecution witnesses. He denied the same and pleaded ignorance. He filed written statement u/s.243(2) Cr.P.C., on 19.4.2016.

5.During the course of defence, accused got examined one witness as DW1.

Written arguments on both sides filed. No oral arguments addressed on either side.

6.The points for determination in this case are;

1) Whether Accused Officer was public servant at relevant point of time within the meaning of section 2(c) of Prevention of Corruption Act, 1988?

2) Whether sanction for prosecution of AO is valid or not?

3) Whether prosecution has proved the ingredients for the offence punishable under section 7 of Prevention of Corruption Act, 1988 against AO beyond all reasonable doubts?

4) Whether prosecution has proved the guilty of Accused officer for the offence under section 13(1)(d) punishable u/s.13(2) of Prevention of Corruption Act, 1988 beyond all reasonable doubts?

7.POINT NO.1: There is no dispute on this point. Admittedly, accused officer while working as ACTO, Maharanipeta Unit in the office of CTO, VUDA building,

Siripuram, Visakhapatnam caught hold in the trap laid by ACB officials. He get salary from Government treasury. Sanction order marked as Ex.P10 contains that by virtue of post held by AO as Assistant Commercial Tax Officer, Visakhapatnam from 1.6.2011 to 29.9.2011, he falls under the category of “public servant” as defined u/s.2(c) of PC Act 1988. The same is not denied by AO in this case. Therefore, this Court safely held that

AO by virtue of post held by him as Assistant Commercial Tax Officer at relevant point of time, he falls under the category of “public servant” as envisaged u/s.2(c) of PC Act 1988.

8.POINT NO.2: In so far as sanction for prosecution as required u/s.19 of PC

Act, 1988 is concerned, prosecution filed Ex.P10 sanction order ie., G.O.Ms.No.555, 4 CC 17/2013, ACB COURT/VSP

Revenue (Vigilance-I) Department dt.1.11.2013 which is marked through PW4 section officer who got acquaintance with the signature of S.P.Singh, the then Principal Secretary to Government as he worked under him. The then Principal Secretary to Government issued Ex.P10 G.O.Ms.NO.555, dt.1.11.2013 to the effect that the Government of AP accorded sanction for prosecution of AO for the offences punishable u/s.7 and sub- section (2) of section 13 read with clause (d) of Sub-section (1) of section 13 of PC Act 1988, in exercise of the powers conferred by clause (b) of sub-section (1) of section 19 of the PC Act, 1988, after fully and carefully examining the entire material placed before them.

9. PW4, Section Officer, Revenue Department, AP Secretariat at Hyderabad stated on oath that their Department received Preliminary report along with copy of FIR, and mediators report I and II on 18-10-2011 and that their department further received final report along with model sanction order on 8-7-2013 and that they placed the above material before sanctioning authority by put the file in circulation. During cross- examination, PW4 stated that he is giving evidence based on record as he has no personal knowledge about the file related to Ex.P.10. He denied the suggestion that he is not competent witness to give evidence whether SP Singh, the then Principal Secretary to Govt. applied his mind on the record and accord prosecution sanction order. In fact AO did not put a suggestion to PW4 that Ex.P10 sanction order was issued without apply the mind of competent authority. On perusal of Ex.P10 sanction order, it is evident that it is a speaking order, so there ends the matter. [CBI vs. Muthuraman]1. Besides that prosecution got examined the section officer as PW4 who stated on oath that based on record that their office received preliminary report along with copy of FIR, mediators report I and II and later received draft final report and model sanction order and that entire material was placed along with note in circulation and the concerned authority accord prosecution sanction order resulting Ex.P10 G.O.Ms.No.555, dt.1.11.2013 signed by the then Principal Secretary to Government by order and in the name of Governor of

AP. The same is not disputed by AO during cross-examination of PW4. Therefore, it is sufficient to held that the sanctioning authority applied its mind on the facts of the case and material placed before it before accord sanction.

10.In fact sanction order is a public document. According of sanction is an 1 1996 Cr.L.J.3638 at page 3640 (AP) 5 CC 17/2013, ACB COURT/VSP official act of the authority who accords sanction and the Court may presume the fact that judicial and official acts have been regularly performed in terms of clause (e) of

Section 114 of the Evidence Act. The court must also presume until the contrary is established that such authority will act fairly and objectively and will accord sanction only where he is satisfied that the charges against the public servant requires to be enquired into by a Court. The authority is presumed to, and expected to, act consistent with public interest and the interest of law-both of which demand that while a public servant be not subjected to harassment, genuine charges and allegations should be allowed to be examined by the Court. Sanction order covered by Ex.P10 is a public document within the meaning of section 74 of Evidence Act. A public document is admissible per se without former proof Shyamala alias Kuladi vs. Sanjeeva Kumar and others 2. Ex.P10 sanction order was signed by the then Principal Secretary to Government of the concerned department and thus under law, by virtue of section 56 and 57 (7) of

Indian Evidence Act, the Court shall be take judicial notice of the accession to office, name, titles, functions, and signatures of the persons filing for the time being any public office and under section 79 of the Indian Evidence Act, the court shall presume the genuineness purported to be a certified copy of other document which is by law declared to be admissible as evidence of fact. In fact the genuineness of the sanction order covered by Ex.P10 is not disputed by AO in the case on hand. Therefore, proportion of law in the decision between State vs. K.Narasimhachary3 that, “the order of sanction for prosecution of public servant was issued under Section 19 of Prevention of Corruption Act (1988) and that the Secretary to State Government merely authenticated the said order of sanction, which was issued in the name of the Governor of State and that the order of sanction was, thus, issued by the State in discharge of its statutory functions in terms of Section 19 of the Act and that the order of sanction was authenticated and that said order of sanction was an executive action of a State having been issued in the name of the Governor and that was authenticated in the manner specified in the Rules of Executive Business and that the authenticity of the said order has not been questioned and that it was therefore, a public document within the meaning of Section 74 of the Evidence Act and that a public document can be proved in terms of Sections 76 to 78 of the Evidence Act and that a public document can be proved otherwise also”, is consequently applicable to the case on hand.

2 2009 (5) SCC 542 3 2006 Crl.L.J.518 6 CC 17/2013, ACB COURT/VSP

11.Asthis Court already discussed the evidence of PW4 and contents of Ex.P10 and held in clear terms above that prosecution complied with Section 19(1) of PC Act not only by rely on presumption available under Indian Evidence Act regard public document which was not rebutted by AO but also by placed oral evidence by examining the concerned Section Officer-PW4 through whom, the sanction order is marked as Ex.P10 which expressly is a speaking order. Thereby prosecution discharged burden of proof lies on it and established that sanction order under Ex.P10 to prosecute AO for the offence punishable u/ss.7 and 13 (2) read with section 13(1)(d) of PC Act 1988, is in accordance with law and valid.

12.POINT NOs.3 & 4: It is a trap case and charges are under Sections 7 and 13(1)(d) read with section 13(2) of PC Act. Before scrutinizing the merits of the case in the light of rival arguments, first of all it is incumbent upon this Court to ruminate the ingredients that have to be established by the prosecution to prove the above two charges.

13.Remaining the duty of prosecution, the Hon'ble Apex Court in a recent decision in the case of B.Jayaraj vs. State of Andhra Pradesh 4has observed thus:

“In so far as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of Hon'ble Apex Court. By way of illustration reference may be made to the decision in C.M.Sharma vs. State of A.P. (2010) 15 SCC 1=AIR 2011 SC 608=2011 AIR SCW 297 and C.M.Girish Babu vs. C.B.I. (2009) 3 SCC 779=AIR 2009 SC 2022”. The Hon'ble Supreme Court of India further observed thus:

“...Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive in so far as the offence Under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or that of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established”.

14.Thus, in the above decision, the Hon'ble Apex Court emphatically laid down that establishing the offences under Section 7 and 13(1)(d), the prosecution shall place 4 2014 (2) ALD (Crl.) 73 (SC)=2014(2) ALT (Crl.) 416 7 CC 17/2013, ACB COURT/VSP cogent evidence establish the two vital ingredients ie., (i) demand of illegal gratification other than legal remuneration and (ii) voluntary acceptance.

15. The Hon'ble Supreme Court of India in several decisions laid down that without proof of demand, the question of raising presumption u/s.20 of PC Act, 1988 would not arise. By way of illustration reference may be made to the decision of

B.Jayaraj's case (supra) Full Bench of Hon'ble Apex Court has laid thus:

“In so far as the presumption permissible to be drawn Under Section 20 of the Act is concerned, such presumption can only be in respect of the offence Under Section 7 and not offences Under Section 13(1)(d) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand”.

16.So in the latest Judgment, the Full Bench of Hon'ble Apex Court observed that, proof of acceptance of illegal gratification can only follow if there is proof of demand and only when these two ingredients are established, presumption under Section 20 of

PC Act would follow.

17.Having regard to the above legal propositions, this case is to be decided. In this case demand was said to be made by AO on 23.09.2011, 28.9.2011 and again on the date of trap ie., 29.9.2011. The contention of AO is total denial of the version of defacto complainant who is examined as Pw1 in this case and that Pw1 got enmity with

AO and gave report with false averments and got laid a false trap and that on the date of trap when AO asked Pw1 to acknowledge the receipt of original Registration Certificate on its office copy, Pw1 himself came to the right side to the chair of AO and made acknowledgement on Ex.P3 and that Pw1 itself puts tainted amount of Rs.8000/- in half open right side drawer of the table after receipt of Registration Certificate and requested

AO to accept the said amount and that AO did not agree for it and took out amount from right side table drawer and returned to Pw1 and that AO left to computer room and that

Pw1 waited in the chamber of AO for 2 or 3 minutes and then came out from the chamber and subsequently gave signal to raid party and got caught hold AO, tested positive and recovered marked currency from the files in the rack behind seat of AO in his office.

8 CC 17/2013, ACB COURT/VSP

18. Whereas, the case of prosecution is that AO being ACTO demanded bribe of

Rs.10,000/- on 23.9.2011 when Pw1 met him after present Ex.P1 application along with enclosures for VAT and CST and that Pw1 expressed his inability to pay bribe and returned back and that on the same day, AO visited the business premises and inspection of site of Pw1 and obtained acknowledgement of Pw1 vide Ex.P5 regard inspection of site and that again on 28.9.2011, Pw1 met AO in his office and asked about the status of his

RC, AO reiterated earlier demand and informed that RC will not be issued unless demanded bribe amount of Rs.10,000/- is paid and that on the request of Pw1 the bribe amount is reduced to Rs.8000/- and AO asked Pw1 to bring the said amount to his office on 29.9.2011 afternoon. Unwilling to pay bribe amount, Pw1 approached ACB office,

Visakhapatnam and presented Ex.P2 report on 28.9.2011 against AO and got registered the same as a crime and got laid trap on 29.9.2011 wherein AO caught hold red handed, tested positive and recovered tainted amount at his instance, in the presence of mediators under the cover of mediators report-II.

19. To substantiate the same, defacto complainant, himself, examined as Pw1 and got marked application along with enclosures as Ex.P1 and report to ACB officials as

Ex.P2 and office copy of registration certificate as Ex.P3 which contains acknowledgement of Pw.1 on 29.9.2011 besides letter dt.23.9.2011 addressed by Pw1 to

AO as Ex.P5 regard visit of business premises and inspection of site of Pw1 by AO on 23.9.2011. Prosecution got examined the then CTO as Pw2 to prove the procedure regard issuance of registration certificate by ACTO. Pw3 is mediator for pre and post trap proceedings. Pw5 is the then DSP,ACB, Visakhapatnam who registered Ex.P2 report as a crime vide Ex.P11 and laid trap in the presence of Pw3 and another mediator and caught hold AO red handed and conducted chemical test and recovered tainted amount of

Rs.8000/- marked as MO.5 besides seized Ex.P3 office copy of RC. Pw4 is Section Officer through whom sanction order Ex.P10 is marked. Pw6 is then Inspector of Police, ACB

Visakhapatnam who conducted investigation and later obtained sanction order Ex.P10 and filed charge-sheet against accused in the court.

20. Pw1-defacto complainant of this case supported the contents of his report

Ex.P2 and his participation in pre and post trap proceedings by contribute proposed bribe amount of Rs.8000/- to ACB officials to use it as tainted amount in the trap. The important portion of evidence of Pw1 is as below:

9 CC 17/2013, ACB COURT/VSP

21.Pw1 on oath during chief examination stated that on 23-9-2011 he applied for registration certificate of VAT and CST in Asst. Commercial Tax office by submit Ex.P1 application along with enclosures and that he met concerned ACTO i.e., accused officer (AO) on the same day at his office and that AO demanded him to pay bribe of

Rs.10,000/- to issue registration certificate and that he expressed his inability to pay bribe and returned back and that on the same day AO visited his business premises and inspected site and that again on 28.9.2011 he met AO and asked about the status of his

RC and then AO again demanded the bribe amount of Rs.10,000/- and informed that RC will not be issued unless demanded bribe amount is paid and that as he has no other go, he requested AO to reduce bribe amount and then AO reduced the demanded bribe amount to Rs.8,000/- and asked him to bring the said amount to his office on its next day ie., on 29-9-2011 after noon.

22.Later, Pw1 gave Ex.P2 report to Dy.S.P,ACB and got laid trap on 29.9.2011 and contributed proposed bribe amount of Rs.8000/- to ACB officials who in turn used it as tainted amount by apply phenolphthalein powder to the currency notes during pre trap proceedings. Pw1 further stated during chief-examination on oath that on 29-9-2011 at about 3.20 PM, he, himself and inspector Nageswara rao proceed to office of ACTO and that Inspector Nageswara rao stopped near lift in the 4th floor and that he alone went into chamber of AO and that AO alone present in his chamber and that he wished him and that AO asked him to sit and informed that his RC was ready and verified him whether he brought demanded bribe amount and that he gave positive reply and that he handed over the tainted amount of Rs.8000/- to AO and that AO received it with his right hand and kept it in the right side table drawer and that AO signed RC with antedate as 28-9- 2011 and gave it to him and that he acknowledged the same in the office copy ie., Ex.P.3 (Ex.P3 office copy of RC contained the signature of Pw1 with date 29.9.2011 as acknowledgement in token of receipt of its original) and then he came out from chamber of AO and gave pre arranged signal to inspector Nageswara rao by combing his hair with comb and that immediately Dy.S.P, mediators and trap party members rushed to office room of AO and Dy.S.P asked him to wait out side room and that about 2 hours thereafter Dy.S.P called him to the room of AO and confronted the version of AO with him and that he denied the same and stated that on demand of bribe amount he gave tainted amount of Rs.8000/- to AO and that he handed over the xerox copy of RC to 10 CC 17/2013, ACB COURT/VSP

Dy.S.P and retained original RC with him.

23. During cross-examination of Pw1, AO elicited the following:

(i) On 23-9-2011 he met AO in the office in between 3.00 to 4.00 PM., and that he has not observed carefully whether any person was present in the room of AO on 23.9.2011 and when AO demanded him bribe amount.

(ii) That on 23.9.2011 AO visited his business premises and inspected site in between 5.00 to 6.00 pm., and that he gave Ex.P5 letter to AO by confirm the visit of

AO.

(iii) That he is aware the fact that his application for VAT and CST should contain signatures of two witnesses having Tax Identification Number (TIN) and that on the first occasion, his application contains signatures of two witnesses having one person having TIN and another person having turnover tax number (which is not sufficient as witness on the application) and that on the instructions of AO he has obtained signature of another witness having TIN and handed over the same to AO.

(iv) That Registration certificate can be dispatched through registered post to the concerned.

(v) That he has not informed to CTO on 28.9.2011 that AO demanded bribe of Rs.10,000/- and reduced Rs.8,000/- to issue RC.

(vi) That he has to reach chamber of AO after crossing the staff sitting in the hall and that some staff members were present in the hall during his visit in the office on 23-9-2011, 28-9-2011 and 29-9-2011.

(vii) That he met AO in the office on 28-9-2011 in between 3.00 to 4.00 PM.

(viii) That he did not say before Dy.s.P during post trap proceedings and during recording of his statement U/sec.164 Cr.P.C statement by III Metropolitan

Magistrate that inspector Nageswara Rao stood near lift in 4th floor corridor, and

(ix) That he does not remember whether AO came to his chamber from computer room which was situated opposite to his office room on the date of trap before he met him in his chamber.

24. Pw1 denied the following suggestions put by AO during his cross- examination:

(i) “It is not true to say that I informed to AO on 23-9-2011 that I am intended to commence my business with effect from 1-10-2011 and requested him to issue RC at 11 CC 17/2013, ACB COURT/VSP an early date”.

(ii) “It is not true to say that I myself requested AO to adjust my application containing signature of one witness having Turnover tax when AO brought the said defect on my application to me and that AO refused to do and that I expressed that my work was getting delayed and that there was exchange of words between us”.

(iii) “It is not true to say that I met AO on 28-9-2011 at about 11.30 AM and resubmitted my application Ex.P.1 to AO after get witnessed the same by a person having TIN”.

(iv) “It is not true to say that when I met AO on 29-9-2011 in his chamber, AO informed me that the original RC will be sent to me through registered post and that I requested AO to issue RC directly to me on that day and that on my request AO delivered RC to me directly and obtained my acknowledgment on Ex.P.3”.

(v) “It is not true to say that when AO asked me to acknowledge receipt o f original RC on its office copy I myself came to right side to his chair and made acknowledgment on Ex.P.3 and that I myself put tainted amount of Rs.8000/- in half open right side drawer of the table after receipt of RC and requested AO to accept the said amount and that AO did not agree for it and took out the amount from right side table drawer and returned to me and that AO left to computer room and that I waited in the chamber of AO for 2 to 3 minutes and then came out from his chamber”.

(vi) “It is not true to say that taking advantage of temporary absence of AO in his chamber I planted tainted amount in between files available in the racks behind the seat of AO”.

(vii) “It is not true to say that I myself disclose the place where the amount was lying to Dy.S.P ie., in between files in racks behind the seat of AO”.

(viii) “It is not true to say that I bore grudge against AO on the pretest that I have to obtain the signature of witness having TIN as advised by AO and that AO was getting delayed for issuance of RC and that I made false trap against AO”.

(ix) “It is not true to say that on any day AO never demanded me bribe amount for issuance of RC”.

25.In view of the suggestions given to Pw1 by AO which are referred above, the defence of AO regard demand and acceptance of bribe amount is total denial.

Prosecution relied on the evidence of Pw1-defacto complainant-cum-victim coupled with

Ex.P2 report to prove above two aspects. Prosecution did not cite and examine any other witness to corroborate the evidence of Pw1 regard demand of bribe by AO on three dates. It is settled position that quality of evidence is criteria but not quantity of evidence to prove a given fact. In the case like this nature bribe monger maintained secrecy while demand bribe from others who approached him for official work. Therefore, there may not be a chance for corroboration of version of victim regard demand of bribe by bribe 12 CC 17/2013, ACB COURT/VSP monger in each and every case. Simply, on the ground that evidence of defacto complainant-cum-victim is not corroborated by any other witness, his testimony should not be threshed out or brushed aside at the threshold. Court has to consider or scrutinize his sole testimony with care and caution. There is nothing in the evidence to show that

Pw1 has any grouse or enmity against accused officer. The only suggestion given by AO during cross-examination of Pw1 available on record is that some exchange of words took place between them when AO did not oblige the request of Pw1 to adjust his application containing the signature of one witness having Turnover tax. The said suggestion is denied by Pw1. Except denial suggestion, there is nothing on record to show that Pw1 has enmity or grouse with accused officer. On scrutinize the evidence of

Pw1 mentioned supra, it is clear that Pw1 had supported his case regard demand of bribe by AO date wise. Nothing has been elicited by AO during cross-examination of Pw1 to discard the evidence of Pw1 made during chief-examination.

26.The first demand dt.23.9.2011 is concerned, the evidence of Pw1 is thus on 23.9.2011 he applied for registration certificate in Asst. Commercial Tax Office ie., Ex.P1 and met concerned ACTO ie., AO on the same day at his office and that AO demanded him to pay bribe of Rs.10,000/- to issue registration certificate. Ex.P1 application contains the initial of Pw2, the then CTO and office seal dt.23.9.2011. Pw2 stated the procedure of receipt of application and issuance of registration certificate. Pw2 stated in clear terms on oath that ACTO is competent to issue registration certificate and that the procedure followed by ACTO after receipt of application form for issuance of registration certificate is that soon after receipt of application file from CTO, ACTO has to verify the concerned business premises and site and that he has to scrutinize the application form and that in case of notice any error in the application, the same has to be get rectified from the applicant and that after verification of the application form, its contents have to be computerized in the office and thereafter, TIN will be generated. He further stated that in case, ACTO received application form from the applicant, ACTO sent it to CTO through tappal and that CTO puts initial on it and office seal. The same procedure is denied during his cross-examination. Any how, Pw2 admits that initial on Ex.P1 belongs to him and it contains his office seal dt.23.9.2011. Whether Ex.P1 application was handed over to CTO ie., Pw2 and from him after puts initial and office seal sent to ACTO ie., AO or whether Ex.P1 was directly handed over to ACTO ie., AO on 23.9.2011 and AO 13 CC 17/2013, ACB COURT/VSP in turn sent it to CTO ie., Pw2 and thereafter Pw2 puts initial on it and office seal dt.23.9.2011 and again sent to ACTO ie., AO to attend it, the fact remains that Ex.P1, application which contains initial of Pw2, the then CTO and office seal dt.23.9.2011, was reached ACTO ie., AO on 23.9.2011 to attend it because it is an admitted case that AO being ACTO of the concerned area had inspected the business premises and site of Pw1 on 23.9.2011 evening hours. Ex.P5 established the same which is an acknowledgement letter given by Pw1 to AO acknowledging the inspection of business premises and site of

Pw1 by AO on 23.9.2011. It is not the case of AO that he had inspected business premises and site of Pw1 on 23.9.2011 without receiving Ex.P1 application on that day.

Simply because, the initial of AO on Ex.P1 application is lacking about receive it directly from Pw1, it cannot be said that Pw1 had not at all met AO in his office on 23.9.2011.

Pw1 had crystal clearly stated during his chief-examination on oath that on 23.9.2011 he met AO in his office and after submit Ex.P1 application in Assistant Commercial Tax office for issuance of RC and then AO demanded him bribe of Rs.10,000/- to process his application for issuance of RC. The said position of evidence of Pw1 is not disturbed by

AO during cross-examination. The evidence of Pw1 regard demand of bribe by AO on 23.9.2011 is corroborated with the contents of Ex.P2, report which is lodged before ACB officials and put the criminal law into motion prior to caught hold accused officer in the trap.

27. Second demand dt.28.9.2011 is concerned, the evidence of Pw1 is that again on 28.9.2011, he met AO and asked about the status of his RC and that AO again demanded bribe amount of Rs.10,000/- and informed that RC will not be issued unless demanded bribe amount is paid and that as he has no other go, he requested AO to reduce bribe amount and then AO reduced demanded bribe amount to Rs.8000/- and asked him to bring the said amount to his office on its next day ie., 29.9.2011 afternoon.

AO denied the same but admits meeting of Pw1 with him in the office on 28.9.2011 at 11.30 a.m., and resubmitted his application Ex.P1 to AO after get witnessed the same by a person having TIN. The defence of AO is that Pw1 need not attend office of AO to verify the status of RC as Pw1 can verify the status of his application through online, because, e-mail ID of Pw1 mentioned in Ex.P1 application against concerned printed column and that original RC has to be sent through registered post as per executive instructions.

28,There is no force in the said defence of AO. In our Country, the applicants 14 CC 17/2013, ACB COURT/VSP are habituated to approach the Government offices or concerned Government officials time to time to know the status of their applications in spite of Government provided online system to the applicants to know the status of their applications. In spite of

Government provided online verification to the applicants about status of their applications, there is nothing wrong in approach AO by Pw1 in the office on 28.9.2011 to verify the status of his RC. There is no statutory prohibition to the applicants to approach

Government employee or particularly AO in his office to verify the status of his application and that the applicant should only verify the status of his application in online only. Moreover, nothing has been elicited by AO during cross-examination of Pw1 to discard the version of Pw1 regard incident took place between them in the office on 28.9.2011 in between 3.00 to 4.00 p.m., regard reiterated earlier demand of bribe by AO from Pw1 to do official favour. In fact AO admitted by put a suggestion to Pw1 that Pw1 met him in his office on 28.9.2011 at 11.30 a.m., but not in between 3.00 to 4.00 p.m., and resubmitted the application Ex.P1 after rectify the defect pointed out by AO regard signature of witness having TIN. So, in one way other AO admitted that Pw1 met him in his office on 28.9.2011. Ex.P1 did not contain that it was resubmitted by Pw1 to AO on 28.9.2011 as suggested by AO during cross-examination of Pw1. AO got elicited during cross-examination of Pw1 that Pw1 did not bring to the notice of CTO ie., Pw2 that AO demanded bribe for issuance of RC. It is not a mandate to the applicants to report to the superiors in the office regard demand of bribe by subordinate officers in the office for doing official favour. It depends on the perception of each person. One may bring notice of the said fact to the superior office and one may not take such chance. Simply on the ground that Pw1 did not bring notice to CTO ie., Pw2 that ACTO ie., AO demanded bribe amount to issue RC, it does not mean that no such incident of demand of bribe took place. Moreover the evidence of Pw1 regard demand of bribe by AO on second time on 28.9.2011 is corroborated with the contents of Ex.P2, report. Nothing has been placed by

AO on record why the evidence of Pw1 regard initial demand of bribe on 23.9.2011 and again on 28.9.2011 which are corroborated with Ex.P2 report, should not be considered.

The evidence of Pw1 gain confidence of the Court.

29. One more improbability raised by AO to believe the case of prosecution or evidence of Pw1 regard initial demands of bribe on 23.9.2011 and 28.9.2011 is that if really AO had an intention to receive bribe amount from Pw1 by demand him, AO should 15 CC 17/2013, ACB COURT/VSP not inspect business premises and site of Pw1 on 23.9.2011 evening. This Court finds no force in it, because, AO had inspected business premises and site of Pw1 on 23.9.2011 evening in taken of process of Ex.P1 application submitted by Pw1. It does not mean that the work of Pw1 was completed by it. The work of Pw1 will be completed by issuing RC only but not by completion of one stage ie., inspection of business premises and site of the applicant. It is not the case of AO that he issued RC to Pw1 prior to date of trap which held on 29.9.2011. No doubt, Ex.P3 office copy of RC contains the signature of AO with date as 28.9.2011 but at the same time it contains the acknowledgement of Pw1 about receipt of original RC on 29.9.2011 (the signature of Pw1 and date underneath it

as 29.9.2011 is available on Ex.P3). The version of Pw1 is that on the date of trap he

met AO in his office room at about 3.20 p.m., and that on demand of bribe amount by

AO, he handed over tainted amount of Rs.8000/- to AO and that AO received it and kept it in right side table drawer and then signed RC with antedate as 28.9.2011 and gave it to him and that he acknowledged the same on the office copy ie., Ex.P3 on 29.9.201. It is not the version of AO that he prepared and signed RC of Pw1 on 28.9.2011 and issued it to Pw1 on 28.9.2011 itself but not on 29.9.2011 ie., on the date of trap. No such suggestion is given during cross-examination of Pw1. Whether AO puts his signature on the RC of Pw1 on 28.9.2011 itself or on 29.9.2011 with antedate as 28.9.2011 admittedly the fact remains that original RC is given to Pw1 by AO on 29.9.2011. It also evidenced with acknowledgement of Pw1 on Ex.P3 office copy of RC. The said acknowledgement contains signature of Pw1 with date as 29.9.2011. So, original RC is not given by AO to Pw1 till the date of trap. It itself shows the official favour to Pw1 exists in the hands of AO as on the date of trap.

30. The third demand of bribe dt.29.9.2011 and acceptance of bribe amount by

AO from Pw1 is concerned, prosecution relied on the evidence of Pw1 as well as evidence of Pw3, mediator and evidence of Pw3, trap laying officer coupled with Exs.P7 and P8 ie., pre trap proceedings/mediators report-I and post trap proceedings/mediators report-II besides Mos.1 to 10 which includes tainted cash of Rs.8000/- marked as MO.5. No doubt, evidence of Pw3, mediator and Pw5, trap laying officer is not helpful to prosecution regard demand of bribe by AO from Pw1 on 29.9.2011 ie., on the date of trap but their evidence is helpful to prosecution to prove recovery of tainted amount from AO during post trap proceedings held on 29.9.2011. Few minutes before trap, the tainted cash was 16 CC 17/2013, ACB COURT/VSP with Pw1. During post trap proceedings, tainted cash was recovered by Pw5 at the instance of AO in the presence of Pw3 and another mediator under Ex.P8. Trap laying officer ie., Pw5 made arrangements to smear the phenolphthalein powder on the currency notes during pre trap proceedings in order to satisfy himself that the public servant had in fact received the bribe and not that currency notes were just thrust into the unwilling officer. Such a test is conducted for his conscientious satisfaction that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily. In the case on hand, the evidence of Pw1 even for demand of bribe amount by AO on the date of trap ie., 29.9.2011 is not disturbed by AO during cross-examination of Pw1. Adding to this, evidence of Pws.3 and 5 helpful to the prosecution regard recovery of tainted amount at the instance of AO in his office room during post trap proceedings. Pws.3 and 5 categorically stated in one version on oath and supported the contents of Ex.P7 and P8 pre trap and post trap proceedings respectively. Coupled to this, the result of chemical test conducted to right hand fingers of AO evidenced by MO.3 sealed bottle containing light pink colour of resultant solution after conducting chemical test to right hand fingers of AO as well chemical test conducted to upper surface of both the files which contact tainted amount in the right side of his table drawer and files in the rack behind his seat evidenced by Mos.6 and 7 sealed bottle containing pink colour and light pink colour resultant solutions respectively collected after testing to the upper surface of both the files, strengthen the evidence of

Pws.3 and 5. If really, AO did not touch the tainted amount with his right hand, the chemical test conducted to his right hand fingers could not give positive result. The explanation offered by AO which is gathered from suggestion given to Pw1 during his cross-examination is that Pw1, himself, put tainted amount of Rs.8000/- in half open right side of the table drawer after receipt of RC and AO refused to accept the said amount and that AO took out the amount from right side table drawer and returned to

Pw1 and that AO left to computer room. The said suggestion is denied by Pw1. AO did not elicit any favourable evidence during cross-examination of Pw1 or other prosecution witnesses and not adduced positive defence evidence in support of his suggestion. So, the suggestion, which is given by AO to Pw1 during his cross-examination, remains as a suggestion for the sake of satisfaction without any supporting evidence on behalf of AO.

On mere denial satisfaction, AO did not get benefited.

17 CC 17/2013, ACB COURT/VSP

31. Pws.3 and 5 categorically stated that during post trap proceedings when

Pw5 disclosed his identity to AO, AO became stunned. They further stated that when Pw5 enquired AO about bribe amount, AO remained mum for about 10 minutes and thereafter

AO informed about bribe amount. The reaction and confusion of AO when Pw5 and his raid party rushed to office of AO which is inconsistent with his innocence how a few minute earlier was the notes with Pw1 and immediately after raid party rushed to office room of AO. The marked currency was found in the files in the rack behind seat of AO and the same is recovered by Pw5 at the instance of AO. The defence of AO is that Pw1 intimated the place of existence of tainted amount to raid party members during post trap proceedings and that the tainted amount was not recovered by Pw5 at the instance of AO. The said suggestion is also denied by Pws.1, 3, and 5. No favourable evidence got elicited by AO in support of the said defence during cross-examination of Pws.1, 3 and 5, at the same time did not place any acceptable defence on his behalf.

32. AO got examined the then Senior Assistant in his office as Dw.1. Dw1 stated that his seat is nearer by chamber of AO after abutting passage and that the door of chamber of AO is always kept open during working hours and that he was in his seat in the office by the time ACB officials came to their office on 29.9.2011 at about 3.30 p.m., and that ACB officials enquired him about room of AO and that he showed the room of

AO to ACB officials and that by that time AO was in computer room but not in his room and that AO informed him that he is going to computer room and sit there before he left his room and that AO further informed him that if anybody came for him, he asked him to inform that to meet him in computer room and that AO informed and went to computer room about 4 or 5 minutes prior to arrival of ACB officials to their office and that he noticed one person (did not say as Pw1) came out from the room of AO about 2 or 3 minutes after AO informed and went to computer room and that he informed to ACB officials that AO was in computer room and that ACB officials took AO from computer room to his room.

33. During cross-examination, Dw1 stated that there are numbers to Senior

Assistants in their office and that he does not remember his number in the office, but he again says that it may be 4 (not definite). He further stated that he cannot say whether

A4 seat is nearer to the chamber of ACTO. Then he voluntarily adduced that he does not know the numbers of staff. He stated that he is not concerned Senior Assistant to the 18 CC 17/2013, ACB COURT/VSP files related to AO. If such is the case what is the necessity to AO to inform to Dw1 whenever he left his office room and went to computer room. Thereby doubt arises about the evidence of Dw1 that AO informed and went to computer room about 4 or 5 minutes prior to arrival of ACB officials to his office. Dw1 admitted a suggestion during cross- examination that he has not stated before ACB officials during enquiry in post trap proceedings that one person came out from room of AO within 2 or 3 minutes after AO informed and left to computer room.

34. If really, Dw1 noticed that one person came out from room of AO within 2 or 3 minutes after AO informed and left to computer room, he should have informed the same before DSP,ACB during post trap proceedings as he was admittedly enquired by

DSP, ACB and his narrated version got incorporated in Ex.P8 post trap proceedings. Ex.P8 proceedings do not contain that Dw1 noticed that one person came out from office room of AO within 2 or 3 minutes after AO informed and left the computer room. So, the version of Dw1 during his chief examination is a developed one and carries no importance for consideration.

35.Even assume for the sake of arguments that his evidence is true and correct, Dw1 did not say that he noticed coming of Pw1 from office room of AO within 2 or 3 minutes after AO came out from his office room and left to computer room. For any one of the reasons mentioned above, evidence of Dw1 is not helpful to AO to nullify the evidence of Pw1 or case of prosecution or rebut presumption u/s.20 of PC Act, 1988.

36.No doubt Pw1 stated that AO received tainted amount with his right hand and kept in the right side office table drawer and then signed on RC with antedate and gave it to him after obtain his acknowledgement on copy of RC ie., on Ex.P3 and then he came out from his office room of AO and give pre arranged signal. Pws.3 and 5 stated that the tainted amount was picked out from the files in the rack behind seat of AO by

AO during post trap proceedings and then Pw5 recovered the said marked currency after got verified the denomination and serial numbers of the notes by mediators with that of details mentioned in Ex.P7 and on found tallied. So, a doubt arises how the tainted amount from office table drawer of AO reached to the files in the rack behind seat of AO.

AO puts a suggestion during cross-examination of Pw1 that “taking advantage of his absence in the chamber, Pw1 planted tainted amount in between files available in the rack behind seat of AO”. The said suggestion is denied by Pw1. AO failed to place the 19 CC 17/2013, ACB COURT/VSP acceptable evidence that he was in computer room, by that time, ACB officials reached office during post trap proceedings and took him from computer room to his office room.

Whereas, evidence of Pws.3 and 5 coupled with the contents of Ex.P8 shows that AO is available in his seat in the office room, by that time, DSP and raid party rushed after receive pre arranged signal and by that time they noticed persons of Pw1 at outside office room of AO and that DSP ie., Pw5 asked Pw1 to wait there. The said portion of evidence is not disturbed by AO during cross-examination of Pws.3 and 5. In view of the evidence of Pws.3 and 5 mentioned above, there is some time available to AO in his room to change the place of tainted amount from his office tale drawer to files in the rack behind in the seat. As after receive original RC, Pw1 left office room of AO and gave pre arranged signal to inspector who in turn pass signal to Pw5 and raid party and then who in turn rushed to the scene. Any how, marked currency ie., MO.5 recovered by Pw5 on being pick out wad of currency by AO from the files in the rack behind his seat.

Thereafter, Pw5 conducted chemical test to the upper surface of both the files i.e, file paper in the right side office table drawer as when file paper in the rack behind seat of

AO which contacted with tainted amount. The chemical test yielded positive result evidenced by Mos.6 and 7. Thus, prosecution proved recovery of tainted cash during post trap proceedings from the files in the rack behind seat of AO at the instance of AO.

37.On considering the evidence of Pws.1, 3 and 5 coupled with Exs.P7 and P8 and Mos.1 to 7, this Court is of the opinion without any doubt in its mind that prosecution proved recovery of tainted amount of Rs.8000/- at the instance of AO during post trap proceedings. Therefore, statutory presumption u/s.20 of PC Act can be drawn.

It is a rebuttable presumption. Accused can rebut it either by elicit favourable evidence during cross-examination of Pws or by adduce positive defence evidence with yardstick of preponderance of probabilities but not as proof beyond all reasonable doubts as lies on the shoulders of prosecution to prove a charge.

38.In this case, AO did not elicit any favourable evidence during cross- examination of Pws.1, 3, and 5 and at the same time not benefited by examine the then

Senior Assistant of his office as Dw1 to rebut the presumption u/s.20 of PC Act.

Therefore, the said presumption remains as unrebutted and favours the case of prosecution. Here the decision of Hon'ble Apex Court in the case between State of 20 CC 17/2013, ACB COURT/VSP

Andhra Pradesh vs. R.Jeevaratnam5 is important for consideration, wherein Their

Lordships relying upon the observations of Three Judges Bench of Hon'ble Supreme Court of India in the case in between Raghubir Singh vs. State of Punjab6 wherein, it is held that, the very fact that the accused was in constructive possession of marked currency notes against the allegation that he demanded and received the amount is RES IPSA

LOQUITOR and therefore a legal presumption u/s.20 of PC Act shall be drawn.

39. As per section 20 of PC Act, wherein any trial of an offence under Section 7 of the Act, it is proved that the accused peron has accepted or obtained for himself any gratification other than legal remuneration, it shall be presumed unless contrary is poved that he accepted or obtained that gratification as a motive or reward such as is mentioned in Section 7 of PC Act. In view of the evidence of Pws.1,3, and 5 coupled with

Exs.P7 and 8, prosecution proved the fact that acceptance of illegal gratification by AO, at the same time, AO failed to rebut the said presumption. In the decision in between

M.Narasingarao vs. State of A.P.,7 , it is held that legal presumption is not rebutted it tantamount to proof. Apart from the above presumption it is clear from the evidence of

Pw1 which is corroborated by Pws.2, 3 and 5 and Exs.P1 to P3, P7, P8 and Mos.1 to 10 proves further demand and acceptance of bribe amount by AO from Pw1 on the date of trap ie., on 29.9.2011.

40. In order to prove a charge for the offence u/s.7 of PC Act, the prosecution must establish that, (1) Accused Officer was a Public servant. The same is proved by prosecution in view of findings in Point No.1 above. (2) Accused Officer accepted or obtained illegal gratification form Pw1 for himself or for any other person. The same is established in view of findings in point Nos.3 and 4 supra and (3) Accused Officer accepted such a gratification as a motive or reward for showing official favour. The same is also proved by prosecution not only by rely on statutory presumption u/s.20 of PC Act which remains unrebutted but also on the evidence of Pw1 coupled with Exs.P1 and P2.

41. In order to prove a charge u/s.13(2) read with section 13(1)(d) of PC Act, the prosecution must prove that Accused officer, by corrupt or illegal means obtained bribe amount of Rs.8000/- ie., MO5 form Pw1. Prosecution established the same by got examined Pws.1, 3, and 5 and relied on Exs.P7 and P8 and Mos.1 to 10. Thus, 5 2004 (2) ALD (Crl.) 486 SC 6 1997 (4) SCC 560 7 2001 CRL.J.515 21 CC 17/2013, ACB COURT/VSP prosecution established all the ingredients to constitute an offence punishable u/ss.7 and 13(1)(d) read with section 13(2) of PC Act, 1988 against Accused Officer beyond all reasonable doubts, consequently accused officer is liable to be convicted.

42.Case property Mos.1 to 4, 6 to 10 vide item No.47/2013 of this Court are liable for destruction on expiry of appeal time. MO.5 tainted amount of Rs.8000/- vide item No.45/2011 of this Court is ordered to be returned to DSP,ACB, Visakhapatnam, on expiry of appeal time, enable him to deposit the said amount to the concerned head of account of Government as the amount of Rs.8000/- was reimbursed to Pw1 subsequent to trap by investigating officer from out of Government account.

43.In the result, Accused Officer is found guilt for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and consequently convicted under Sec.248(2) Cr.P.C. for both the counts above.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 15th day of July, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

44.When accused officer is questioned about quantum of sentence, he stated that his financial position is not good and he has to look after his two children who are studying Engineering course and wife and mother, who are suffering with illness and that his health is also not good and underwent operation and prays mercy.

45. Heard both sides. On considering the statement of accused officer about quantum of sentence mentioned above, in the light of facts and circumstances of the case on hand and gravity of offence, this Court feel it is not a fit case to invoke the provisions of PO Act. Accused officer is sentenced to undergo R.I. for a period of three years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.7 of P.C.Act, 1988 and further sentenced to undergo R.I.

for a period of three years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of P.C.Act 1988.

46. The substantive sentence of imprisonment awarded to accused officer for both counts above shall run concurrently.

47. Total fine comes to Rs.2,000/-.

22 CC 17/2013, ACB COURT/VSP

48.The detention period of accused officer in this case from 29.09.2011 to 07.10.2011 (both days inclusive) is ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to accused officer.

49.Case properties Mos.1 to 4 and 6 to 10 vide item No.47/2013 of this Court, are ordered for destruction on expiry of appeal time and MO.5 cash of Rs.8,000/- vide item No.45/2011 of this Court, is ordered to be returned to Dy.SP, ACB, Visakhapatnam on expiry of appeal time, enable him to deposit the said amount to the concerned head of account of Government as the amount of Rs.8000/- was reimbursed to Pw1 subsequent to trap by investigating officer from out of Government account.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open court on this the 15th day of July, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

On behalf of Prosecution: PW1: Talla Jagannadharao (defacto complainant) PW2: Gedela Appa Rao (the then CTO, Visakhapatnam). PW3 : Gutti Muralikrishna (mediator for pre and post trap proceedings). PW4 : K.Venkateswara Kumar, (Section Officer, Revenue Department, AP Secretariat, Hyderabad). PW5 : K.V.Ramakrishna Prasad (the then DSP, ACB,Visakhapatnam-cum-Trap laying officer). PW6 : S.Ramakrishna (the then Inspector of Police, ACB, Visakhapatnam).

On behalf of Defence:

DW1 : V.Prasada Rao (the then Senior Assistant in the office of CTO, Visakhapatnam).

No.of Exhibits marked on prosecution side:

Ex.P1/23.9.2011: Application of PW1 for VAT & CST along with enclosures.

Ex.P2/28.9.2011 : Report lodged by Pw1

Ex.P3/29.9.2011: Office copy of RC containing acknowledgement of Pw1

Ex.P4/15.10.2011: Portion of signature of PW1 on his Statement u/s.164 Cr.P.C., recorded by III Metropolitan Magistrate, Visakhapatnam.

Ex.P5/23.9.2011: Letter addressed by Pw1 to ACTO

Ex.P6/29.9.2011: Copy of FIR

Ex.P7/29.9.2011: Pre trap proceedings/mediators report-I.

Ex.P8/29.9.2011: Post trap proceedings/mediators report-II.

23 CC 17/2013, ACB COURT/VSP

Ex.P9/29.9.2011: Rough sketch of scene. Ex.P10/1.11.2013: G.O.Ms.No.555, Revenue (Vigilance-I) Department Ex.P11/29.9.2011: Original FIR in Cr.No.22/RCT-ACB-VSP/2011

Material Objects marked:

M.O.1 : One sealed cover containing sample packet of Sodium carbonate powder used in pre trap proceedings. M.O.2 : One sealed cover containing sample packet of Phenolphthalein Powder used in pre trap proceedings. M.O.3 : One sealed bottle containing light pink colour resultant solution collected after conducting chemical test to the right hand fingers of AO. M.O.4: One sealed bottle containing colourless resultant solution collected after conducting chemical test to the left hand fingers of AO (now containing ¼ solution in the bottle due to leakage). M.O.5:Tainted amount of Rs.8,000/-. M.O.6:One sealed bottle containing pink colour resultant solution collected after conducting chemical test to the upper surface of files. M.O.7:One sealed bottle containing light pink colour resultant solution after conducting chemical test to the upper surface of file. M.O.8 : Sealed cover containing sample of Sodium carbonate powder used in post trap proceedings.

Mos.9 & 10 :Brown colour wrapper sheets

III ADJ-CUM-SPL.JUDGE

FOR SPE & ACB/VSP Copies to:

1. The Accused Officer.

2. The Deputy Superintendent of Police, ACB, Visakhapatnam.

3. The Head of the Department.

24 CC 17/2013, ACB COURT/VSP

JUDGMENT AND CALENDER

CALENDER CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-III ADDL.

DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM

C.C.17/2013

(Cr.No.22/RCT-ACB-VSP/2011) D A T E O F:

REPORT OF COMPLAINANT : 28.09.2011 APPREHENSION OF ACCUSED : 03.01.2014 RELEASE ON BAIL : 07.10.2011 COMMENCEMENT OF TRIAL : 08.02.2016 CLOSE OF TRIAL : 09.06.2016 SENTENCE OR ORDER : 15.07.2016

EXPLANATION FOR DELAY AND REMARKS:-

Accused Officer appeared and received copies of documents. Thereafter charges for the offence under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act against Accused Officer framed on 05.05.2014. Pws.1 to 6 are examined and Exs.P1 to P11, besides MOs.1 to 10 are marked. Then the case is posted for defence evidence. DW1 is examined and no documents are marked. Later Accused Officer is examined under section 313 Cr.P.C., At last detailed written arguments submitted on both sides besides. Judgment is pronounced on 15.06.2016 and the Accused Officer is found guilt for the offence punishable under sections 7 and 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.

JUDGMENT IN CALENDER CASE NO.17/2013 ON THE FILE OF III ADDITIONAL DISTRICT

JUDGE-CUM-SPECIAL JUDGE FOR SPE AND ACB CASES,VISAKHAPATNAM

COMPLAINANT

State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam.

NAME OF THE ACCUSED:

Sri Muttireddy Srinivasa Rao, S/o late Satyanarayana, 47 years, A.C.T.O., Maharanipeta Unit, O/o C.T.O., Chinawaltair Circle, VUDA Building, Siripuram, Visakhapatnam.

OFFENCE : U/secs.7 and 13(2) r/w sec.13(1)(d) of Prevention of Corruption Act, 1988. FINDING OF THE COURT: AO IS FOUND GUILT U/secs.7 and 13(1)(d) r/w sec.13(2) of Prevention of Corruption Act, 1988.

S E N T E N C E: Accused Officer is FOUND GUILTY.

In the result, Accused Officer is found guilt for the offence punishable under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988 and consequently convicted under Sec.248(2) Cr.P.C. for both the counts above.

When accused officer is questioned about quantum of sentence, he stated that his financial position is not good and he has to look after his two children who are studying 25 CC 17/2013, ACB COURT/VSP

Engineering course and wife and mother, who are suffering with illness and that his health is also not good and underwent operation and prays mercy.

Heard both sides. On considering the statement of accused officer about quantum of sentence mentioned above, in the light of facts and circumstances of the case on hand and gravity of offence, this Court feel it is not a fit case to invoke the provisions of PO

Act. Accused officer is sentenced to undergo R.I. for a period of three years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.7 of P.C.Act, 1988 and further sentenced to undergo R.I. for a period of three years and to pay fine of Rs.1000/- (Rupees one thousand only) IDSI 60 days for the offence punishable under Sec.13(2) read with Sec.13(1)(d) of P.C.Act 1988.

The substantive sentence of imprisonment awarded to accused officer for both counts above shall run concurrently.

Total fine comes to Rs.2,000/-.

The detention period of accused officer in this case from 29.09.2011 to 07.10.2011 (both days inclusive) is ordered to be set off under Sec.428 Cr.P.C., from out of substantive sentence of imprisonment awarded to accused officer.

Case properties Mos.1 to 4 and 6 to 10 vide item No.47/2013 of this Court, are ordered for destruction on expiry of appeal time and MO.5 cash of Rs.8,000/- vide item

No.45/2011 of this Court, is ordered to be returned to Dy.SP, ACB, Visakhapatnam on expiry of appeal time, enable him to deposit the said amount to the concerned head of account of Government as the amount of Rs.8000/- was reimbursed to Pw1 subsequent to trap by investigating officer from out of Government account.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

1 CC 02/2011, ACB COURT/VSP

IN THE COURT OF SPECIAL JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

Present :- Sri K.Surya Rao Spl. Judge for SPE and ACB Cases, Cum-III Addl. District Judge, Visakhapatnam

Tuesday, this the 14th day of June, 2016

C.C.02/2011

(Cr.No.30/RCT-ACB-CIU-HYD/2009) Between: State represented by Deputy Superintendent of Police, Anti-Corruption Bureau, Central Investigation Unit, Hyderabad. ….Complainant And: Sri Malla Nooka Raju, S/o M.Ramu Naidu, aged 52 years, Commercial Tax Officer, Kasibugga Circle, Srikakulam District.

...Accused Officer

This case coming on 09.05.2016 later on subsequent dates and finally on 09.06.2016 before me for final hearing in the presence of Special Public Prosecutor (Sri K.Ramakrishna) for Complainant-State and Sri G.V.P.B.S.Murthy, Ld. Advocate for the Accused Officer and having stood over for consideration till this day, this Court doth the following :

JUDGMENT

1. State represented by Deputy Superintendent of Police, Anti-Corruption

Bureau, Central Investigation Unit, Hyderabad filed charge sheet against Accused Officer (hereinafter referred as 'AO') in Crime NO.30/RCT-ACB-CIU-HYD/2009 for the offence punishable under sections 7, and 13(2) read with Section 13(1)(d) of Prevention of

Corruption Act, 1988 (hereinafter referred as 'PC Act, 1988').

2.The factual matrix of case of prosecution in nutshell as per charge sheet is that AO worked as Commercial Tax Officer, Kasibugga Circle, Srikakulam District at relevant point of time of this case and by virtue of the post held by him, he falls under the definition of “public servant” as defined under section 2(c) of PC Act, 1988 and that the defacto complainant, Gundluru Bhaskar is working as Manager (Admn), M/s. SSVG

Engineering Projects (P) Limited resident of Mehdipatnam, Hyderabad and that the said company purchased one Komatsu Motor Grader GD 511A-1 from the Larsen & Turbo as per High Seas Agreement dt.02.06.2009 for total value of Rs.62,52,459/- and that the company paid 15% of advance of Rs.9,37,869/- to M/s.Larsen & Turbo Ltd., and arranged a financier for the balance amount of 85% from Sri Equipment Finance Pvt.

Ltd., and that M/s. SSVG Engineering Pvt.Ltd., paid port clearance charges in favour of

Commissioner of Customs by way of challan and that clearance of the equipment also 2 CC 02/2011, ACB COURT/VSP given to SSVG on 21.08.2009 with transport authorization letter to M/s.South North

Transport, Chennai to transport the Motor Grader from Chennai port to Bhadrak Project site in Orissa State and that the said equipment was insured by National Insurance

Company Ltd., and that the trailer carrying the above Motor Grader was detained on 25.08.2009 by AO at Ichapuram check post and that the driver of the transport vehicle was carrying all required documents including transit pass valid from 20.08.2009 to 26.08.2009 and that defacto complainant and staff of the company by name Venkata

Ramana approached AO and showed all the documents asked him to release the vehicle which was detained by him and that the AO demanded a bribe of Rs.80,000/- to release the vehicle and threatened to impose tax of Rs.10,12,500/- if the demanded bribe amount is not paid and that defacto complainant and Venkata Ramana stated that their company was not willing to pay the said bribe since they need not pay any tax to AP

State as per documents possessed and that unwilling to pay bribe amount, defacto complainant approached incharge DSP,ACB, CIU, Hyderabad and gave report on 28.08.2009 at 2.00 p.m., and that after verification and obtained permission from competent authority, a crime is registered by ACB officials on 28.08.2009 at 5.00 p.m., and made all arrangements for trap to catch the corrupt public servant red handed. ACB officials along with mediators and defacto complainant and Venkata Ramana as accompanying witness participated in trap by came down to Visakhapatnam and caught hold accused officer red handed, tested positive and tainted amount was recovered and arrested accused officer and produced before the court and that after completion of investigation, obtained sanction order from competent authority vide G.O.Ms.No.1338, dt.08.11.2010 of Revenue (Vig.1) Dept., Government of A.P., Hyderabad and filed charge sheet against accused officer in this Court for the offence punishable u/s.7 and 13(1)(d) read with section 13(2) of PC Act 1988 and hence the charge.

3.After perusal of record, court took cognizance against AO for the offence punishable under sections 7 and 13(2) read with section 13(1) (d) of PC Act, 1988 on 01.02.2011 and registered the case as CC 2/2011. In pursuance of the summons, AO appeared before Court along with advocate and received copies of documents under section 207 Cr.P.C., on 01.03.2011. He denied the case of prosecution. Later AO is examined under section 239 Cr.P.C., on 25.6.2012 and after hearing, charges for the offence punishable u/s.7, 13(1)(d) read with section 13(2) of PC Act 1988 against AO, 3 CC 02/2011, ACB COURT/VSP have been framed read over and explained in Telugu for which AO pleaded not guilty and claimed to be tried and hence matter posted for trial.

4.On behalf of prosecution, Pws.1 to 3 are examined. Ex.P1 to P17 are marked besides Mos.1 to 8. On completion of prosecution evidence, heard both sides on the questionnaire of examination under section 313 Cr.P.C., and examined the AO u/s.313

Cr.P.C., on 28.4.2016 enable AO to explain on the incriminating material found against him in the evidence of prosecution witnesses and that he denied the same and filed statement u/s.243 of Cr.p.C., No defence evidence is reported. Written arguments on both sides filed. No oral arguments addressed on either side.

5.The points for determination in this case are;

1) Whether the AO was public servant at relevant point of time within the meaning of section 2(c) of Prevention of Corruption Act, 1988?

2) Whether sanction for prosecution of AO is valid or not?

3) Whether prosecution has established the ingredients of the charge for the offence punishable under section 7 of Prevention of Corruption Act, 1988 against AO beyond all reasonable doubts?

4) Whether prosecution has proved the ingredients for the offence under section 13(1)(d) of Prevention of Corruption Act, 1988 against AO beyond all reasonable doubts? If so, whether AO is liable to punish u/s.13(2) of PC Act 1988?

6. POINT NO.1: In fact there is no dispute by AO regard post hold by him at relevant point of time of this case. Admittedly, he worked as Commercial Tax Officer,

Kasibugga Circle of Srikakulam District by the date of demand and trap. Admittedly, AO get salary from Government treasury. The same is also mentioned in sanction order

Ex.P17 which is not under dispute. Therefore, for these reasons, AO come under the definition of “public servant” within the definition of section 2(c) of PC Act 1988 at the relevant point of time.

7.POINT NO.2: Prosecution relied on evidence of PW3, the investigating officer, coupled with Ex.P17 sanction order to establish this point. On perusal of Ex.P17, it shows that sanctioning authority after carefully examining the material placed before it in respect of the allegations made against AO and having regard to the circumstances of the case considered that AO should be prosecuted in a court of Law for the offence punishable u/s.7 and 13(2) read with section 13(1)(d) of PC Act 1988. In fact the 4 CC 02/2011, ACB COURT/VSP validity of the sanction order covered by Ex.P17 is not disputed by AO in this case.

Therefore, for the above said reasons, prosecution by place Ex.P17 which is a speaking order, established that the sanction prosecution of AO is valid one and complied with the mandatory provision u/s.19 of PC Act, 1988.

8.POINT NOs.3 & 4: It is settled law that even with regard to the offences under PC Act 1988, prosecution has to prove the charges levelled against AO beyond all reasonable doubts like any other criminal offences and that the AO should be considered to be innocent till established or otherwise. In reiteration of the golden principle which runs to wad of administration of justice in criminal cases, the Apex Court on land in the case in between Sujit Biswas vs. State of Assam1 had held that, “suspicion, however grave, cannot take place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided”. Prosecution has to establish by cogent evidence the essential ingredients to constitute both the charges framed against

AO in this case on hand.

9. The essential ingredients of section 7 of the PC Act are:

(i) that Accused Officer should have been a public servant;

(ii) that he must be shown to have obtained from any person, any gratification other than legal remuneration;

(iii) that the gratification should be a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function, favour or disfavour to any person.

In so far as Section 13(1)(d) of Act is concerned, the essential ingredients are,

(i) that AO should have been a public servant;

(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant; and

(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other persons.

10. In nutshell, prosecution has to establish with yardstick proof beyond all reasonable doubts, the following points:

1 (2013) 12 SCC 406=2013 (7) SCJ 266 5 CC 02/2011, ACB COURT/VSP

(i) AO was public servant at relevant point of time which is not disputed by AO in the case on hand. Any how, this Court answered point No.1 above and hold that AO by virtue of post hold as Commercial Tax Officer, Kasibugga Circle, Srikakulam District at relevant point of time being get salary from Government treasury, come under definition of “public servant” as envisaged u/s.2(c) of PC Act 1988.

(ii) The demand of bribe amount by AO.

(iii) Acceptance of bribe amount by AO and recovery of it by prosecution.

(iv) Pendency of official act in the hands of AO to do to defacto complainant as on the date of trap.

11. In so far as the official act is concerned, PW2, the then Administrative

Officer at Integrated Check Post, Purushothapuram of Srikakulam District stated on oath that the vehicle carrying Motor grader entered in the State of AP at B.V.Palem of Nellore

District and that the said vehicle was detained on 25.08.2009 by AO demand bribe of

Rs.80,000/- to release the vehicle, otherwise the consignee has to pay A.P. Tax on entry under M.V.Act of Rs.10,12,500/-. He further deposed that any vehicle purchased out side

State of AP and brought into State of AP within 15 months, the owner of the vehicle has to pay entry tax and that as per the record, the above vehicle is left at Chennai and entered into AP to reach State of Orissa and that no tax has been paid in Tamilnadu under C.S.T.Act. During cross-examination, he deposed that if the finance company who arranges finance enters into agreement with the purchaser and the finance agreement is entered in Andhra Pradesh, tax will be levied irrespective of usage of goods/machinery/vehicle in the State of AP or in any other State. Defacto complainant alleged that AO demanded bribe of Rs.80,000/- to release the vehicle. On the date of trap, AO was in possession of Ex.P12. AO can detain a vehicle for 48 hours. In view of possession of Ex.P12 and a specific allegation in respect of amount to be levied as per

Ex.P12 appears in Ex.P14 shows that AO intended to levy some tax. It may be either by legitimately or illegally means by abusing his position as public servant. This court being

Spl. Judge for ACB cases and while determining the criminal charges against AO under the provisions of PC Act 1988, need not adjudicate whether the said special goods ie.,

Motor grader is liable to charge from the defacto complainant to pay AP Tax for entry under MV Act legitimately or not, or whether the special goods is machinery or vehicle.

Admittedly, finance agreement was entered in State of AP for special goods. In view of 6 CC 02/2011, ACB COURT/VSP undisputed evidence of PW2, in case finance agreement is entered in State of AP, tax will be levied irrespective of usage of goods or machinery or vehicle in the State of AP or in any other State, by virtue of provisions under A.P.Vat Tax Act. AO would not have informed the amount of tax to be levied to defacto complainant unless he prepared

Ex.P12 notice which was prepared on the date of detention itself. Therefore, it clearly establishes that the AO prepared Ex.P12 notice demanding to pay AP tax on entry under

M.V.Act of Rs.10,12,500/- with a view to extract some amount as bribe on the date of detention. Thereby, prosecution has proved the existence of official act in the hands of

AO who was the then Commercial Tax Officer, Kasibugga Circle, Srikakulam District to do some favour or disfavour to defacto complainant as on the date of demand and trap.

Performance of the act which is the consideration for the bribe is not essential but it is essential that the bribe should be obtained as a motive or reward. Similarly whether the complainant desires the accused to perform by way of consideration of the bribe, whether it is actually performed or not at the time of the acceptance of the bribe, is not relevant. What is relevant is that the amount of bribe has been received by corrupt or illegal means by abusing his position as a public servant. Once it is shown, the offence is completed. Under these circumstances, even if the illegal gratification is received by the public servant after the official act is done, yet, it will constitute an offence.

12. Therefore, prosecution further to establish acceptance of amount by AO from defacto complainant and recovery of tainted amount by ACB officials during post trap proceedings beyond all reasonable doubts, to substantiate the charges levelled against AO. To prove the fact of recovery of tainted amount from AO, prosecution relied on the evidence of Pws.1 and 3 coupled with Ex.P2, P5 besides Mos.1 to 8. PW1 is a mediator regard pre and post trap proceedings. PW3 is trap laying officer. Ex.P2 is pre trap proceedings whereas Ex.P5 is post trap proceedings. On scrutiny of evidence of

Pws.1 and 3 in the light of contents of Ex.P2 and P5, it is clear that both of them supported the case of prosecution regard formalities followed in trap cases ie., by apply phenolphthalein powder to proposed bribe amount of Rs.80,000/- during pre trap proceedings and kept it in the shirt pocket of defacto complainant and instructions of DSP to defacto complainant not to touch the tainted amount until AO demanded and further instructed that in case of AO demanded and accepted the amount, he has to come out and give signal by wiping his face with handkerchief and that DSP instructed Y.V.Ramana 7 CC 02/2011, ACB COURT/VSP to follow the defacto complainant and observe the events that took place between defacto complainant Venkata Ramana and AO. Pws.1 and 3 further supported the case of prosecution regard post trap proceedings covered by Ex.P5. They stated that subsequent to pre trap proceedings, all of them left in vehicles to Tycoon restaurant at about 10.45 a.m., and that defacto complainant and accompanying witness entered into Tycoon restaurant and came outside and stayed in front of the tycoon restaurant whereas DSP and mediators and trap party members took vantage position by split up into groups and that at about 11.00 a.m., one person waring blue colour shirt approached the complainant and accompanying witness and that after few minutes the complainant and accompanying witness and the person who approached them boarded TATA Indica car bearing No.A.PY 7205 and proceeded towards Pedawaltair and that DSP along with mediator and staff boarded Innova vehicle and followed the TATA Indica Car and that after passing some distance, the said TATA Indica car took right turn and entered into

A.U premises through the entrance gate wherein located Department of Economic and that DSP, raid party members followed the said vehicle by maintain some distance and that the TATA Indica car passed some distance in the AU campus and halted at T-junction and took left side turn and halted and that the vehicle wherein DSP raid party stopped at some distance and that DSP trap party got down from their vehicle and took vantage position on seeing get down of defacto complainant and one more person from car and that at about 11.30 a.m., DSP received pre arranged signal from defacto complainant and that immediately they rushed to the spot and noticed defacto complainant, accompanying witness and the said person stood stand and then DSP introduced himself and mediators to the said person and informed the purpose of their coming there and that the said person became nerves and started shivering and then DSP ascertained the name and identity of the said person who disclosed as AO of this case and that DSP conducted chemical test to both hand fingers of AO which yielded positive and on enquiry about the amount, AO produced wad of currency notes from his left side pocket and the same was taken over by PW1, a mediator and verified the denomination and serial numbers of the said amount with details mentioned in pre trap proceedings and found tallied and then DSP seized the tainted amount of Rs.80,000/- which is marked as MO.8 from possession of AO and then got conducted chemical test to the inner linings of left side pant pocket of AO which yielded positive result and enquired AO, defacto 8 CC 02/2011, ACB COURT/VSP complainant and accompanying witness and their narrated versions got incorporated in post trap proceedings covered by Ex.P5. Pws.1 and 3 further stated that PW3 preserved the resultant solutions in separate bottles after testing to the hand fingers of AO as well as inner linings of pant pocket of AO, sealed and got affixed identity slips containing their signatures evidenced by Mos.4 to 6. The solution in MO.4 is now in light pink colour whereas MO.5 bottle is empty due to leakage. The colour of solution in MO.6 is now in white in colour. In fact during cross examination of Pws.1 and 3, AO did not deny laying of trap on him by ACB officials and caught hold red handed and conduct of chemical test to his both hand fingers as well as inner linings of his pant pocket and its results and recovery of tainted amount of Rs.80,000/- marked as MO.8 under the cover of Ex.P5 in the presence of mediators. The only suggestion given by AO to Pws is that defacto complainant mislead DSP and staff and that the trap in this case is unsuccessful one. The said suggestion is denied by Pws. No positive evidence is placed by AO in support of the said suggestion. In fact, chemical test conducted to the right hand fingers of AO give positive result evidenced by MO.4. Coupled with this, prosecution seized tainted currency notes for Rs.80,000/- from possession of AO which is marked as MO.8 during post trap proceedings under Ex.P5. Men may lie but not circumstances. No explanation is offered by AO for giving positive result of the chemical test conducted to his right hand fingers. If

AO did not touch the tainted amount with his right hand, the chemical test conducted to his right hand fingers would not give positive result. It is not the case of AO that either defacto complainant or DSP ACB,CIU, Hyderabad are enmical towards him. So, the version put forth by AO that defacto complainant thrust the amount in the left side pant pocket of AO is neither probable nor the said explanation is plausible. In fact, AO did not elicit any favourable evidence during cross examination of Pws in support of the above version except put a suggestion which is denied by Pws.1 and 3. On the other hand, AO did not place any positive evidence during his turm of evidence in this case in support of his defence. On considering the evidence of Pws.1 and 3 in the light of contents of Ex.P5 and fact of recovery of tainted amount of Rs.80,000/- covered by MO.8, this Court has no hesitation to hold that the prosecution proved recovery of marked currency of

Rs.80,000/- from possession of AO in the presence of PW1 and another mediator under

Ex.P5.

13. In a trap case, prosecution has to by cogent evidence established the 9 CC 02/2011, ACB COURT/VSP demand and acceptance of bribe by accused to enable court to draw presumption under section 20 of PC Act. In so far as the offence under Section 7 of PC Act is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under

Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several Judgments of Hon'ble Supreme Court of India. By way of illustration reference may be made to the decision in C.M.Sharma vs. State of A.P., (2010) 15 SCC 1 = AIR 2011 SC 608 and C.M.Girish Babu vs. C.B.I., (2009) 3 SCC 779 = AIR 2009 SC 2022.

14. The Hon'ble Apex Court on land in A.Subair vs. State of Kerala2 while dealing on the purport of statutory presumption of sections 7 and 13 (1)(d) of PC Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

15. In State of Kerala and another vs. C.P.Rao3 the Hon'ble Supreme Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. In a recent enunciation by Apex

Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayaraj vs. State of A.P.,4 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a 2 (2009) 6 SCC 587 = (2009) 3 SCC (Cri) 85 3 (2011) 6 SCC 450 = (2011) 2 SCC (Cri)) 2010 4 2014 (2) ALD (Crl.) 73 (SC) = (2014) 13 SCC 55 10 CC 02/2011, ACB COURT/VSP presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 of the Act and not to those under Section 13(1)(d)(i)&(ii) of the

Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

16. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the

Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13(1)(d) of the PC Act would not entail his conviction thereunder.

17. The very same principle is followed by Hon'ble Supreme Court in the decision in between P.Satyanarayana Murthy vs. District Inspector of Police, State of

A.P., and another 5 . In the referred decision, defacto complainant died when the case reached for trial. Thereupon, prosecution could not examine the defacto complainant to prove the factum of demand of bribe by AO. Prosecution got examined the trap witness accompanying the defacto complainant in trap as PW1. He stated that when complainant did hand over to accused, the renewal application, latter enquired from complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon complainant handed over Rs.500/- to accused. The Lordships of Apex Court in the above decision held that, even if evidence of PW1 is accepted on the face value, it falls short of the quality and decisiveness of proof of demand of illegal gratification, to hold that offence under sections 7 or section 13(1)(d)(i) and (ii) of the Act has been proved. Consequently conviction ordered by first Appellate Court is reversed.

Recent Three Judges Bench of Hon'ble Supreme Court of India in the case in

Selvaraj vs. State of Karnataka 6 held that, recovery of tainted amount is not sufficient to 5 AIR 2015 SC 3549 = (2016) 1 Supreme Court Cases (Cri) 11 = (2015) 10 Supreme Court Cases 152 6 (2016) 1 Supreme Court Cases (Cri) 19 = (2015) 10 Supreme Court Cases 230 11 CC 02/2011, ACB COURT/VSP convict the accused and demand has to be proved by adducing clinching evidence by prosecution. The Lordships of Hon'ble Supreme Court of India in the above case observed that, when the defacto complainant is not available for examination during trial, Court has to be cautious while sifting the evidence of other witnesses.

18. With this background, if the case on hand is taken up to consider how far prosecution established the indispensable mandatory elements to constitute the offence under sections 7 and 13(1)(d) of the Act ie., demand and acceptance of bribe amount by

AO, it is clear that prosecution got cited defacto complainant as well as accompanying witness of complainant in trap in the memo of evidence annexed to the charge sheet but failed to secure their presence during the course of trial even against obtained summons from the Court and granted sufficient time. Summon of defacto complainant is returned with a memo stating that he is not available in the given address since 2011 onwards and his present whereabouts are not known. Summon of accompanying witness is also returned as unserved by prosecution stating that he is not in the given address. So, the fact remains that prosecution failed to examine the defacto complainant as well as accompanying witness in this case and no opportunity is given to AO to cross-examine them. PW1, one of the mediators of pre and post trap proceedings and PW3 trap laying officer and PW2 who is examined by prosecution to prove the procedure followed at

Integrated Check post of Purushothapuram of Srikakulam District, are not the witnesses either for demand or acceptance of bribe amount by AO from defacto complainant.

Therefore, the evidence of Pws.1 to 3 is no way helpful to prosecution to prove the mandatory elements of demand and acceptance of bribe by AO from defacto complainant. The fact remains that prosecution did not adduce evidence regard demand and acceptance of bribe amount by AO from defacto complainant in the case on hand.

Prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was in pursuant to any demand made by AO. The defacto complainant and accompanying witness to the complainant in trap are not examined by prosecution, and the other evidence placed by prosecution to prove recovery of tainted currency notes from possession of the AO alone, is not sufficient to the prosecution to get conviction for two charges i.e., u/ss.7 and 13(1)(d) of PC Act levelled against AO. The settled legal position mentioned supra in view of veldit and dictum by Hon'ble Supreme Court of India from 12 CC 02/2011, ACB COURT/VSP time to time in several Judgments is that, mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under

Section 7. The above also will be conclusive in so far as the offence under Section 13(1)

(d)(i)(ii) of the Act is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

19. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under

Section 7 and not for the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 of the Act can be drawn are wholly absent.

20. The materials on record when judged on the touchstone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the present case, has failed to prove unequivocally, the demand of illegal gratification by accused officer from defacto complaint and, thus, this Court without any hesitation hold that prosecution failed to prove the ingredients to constitute the offence punishable u/ss.7 and 13(1)(d) of PC Act against AO beyond all reasonable doubts, consequently,

Accused Officer is entitled for acquittal.

21.Ld.Advocate for AO argued that PW3 did not properly verified the genuineness of report Ex.P14 given by defacto complainant and did not enquire the antecedents of suspector employee ie., AO before registration of crime as PW3 received

Ex.P14 report from defacto complainant on 28.08.2009 at about 2.00 p.m., and registered the said report as case in crime vide Ex.P15 FIR by 5.00 p.m., on the same day at Hyderabad whereas the suspenctor employee was working by then as Commercial

Tax Officer, Kasibugga Circle of Srikakulam District which is about 900 kms away from

Hyderabad. Ld.counsel for AO stated in his arguments that PW3 should have taken at least one day to verify the antecedents of AO through his sources at Srikakulam but he registered the crime on hand within three hours after receipt of report from defacto 13 CC 02/2011, ACB COURT/VSP complainant by sitting at Hyderabad and that PW3 was in the office by 3.00 p.m., and he discussed with JD for 30 to 45 minutes after receipt of report and verification and that in the said circumstances, it cannot be possible to verify the antecedents of AO within such a short time and the evidence of PW3 is not believable. The arguments of Ld.counsel for

AO mentioned above holds no water. In the present time, communication is well developed and one can verify the antecedents of another by use the present day communications by sitting at any where.

22.Adding to this, the mode of verification of genuineness of the report or antecedents of suspector employee need not be disclosed by officer who received report against public servant and registered the report as crime after verification and obtained permission from the competent authority. It is not the case of AO that PW3 did not obtain permission from competent authority before registration of Ex.P14 report as a crime vide

Ex.P15. No doubt, the Law is well settled, before laying trap, it is necessary to verify the genuineness of the report and antecedents of the public servant. Otherwise many innocent and honest public servants would be implicated by the complainants who develop grouse against public servants. The material on record and the evidence of PW3 is clear that PW3 did not register the crime on hand after receipt of report from defacto complainant immediately. PW3 recevied Ex.P14 report from defacto complainant at 2.00 p.m., and thereafter got verified the genuineness of report as well as antecedents of suspector employee and after obtain permission from competent authority, he registered

Ex.P14 report vide Ex.P15 FIR at 5.00 p.m., and thereafter trap was laid on 29.08.2009.

So, it is not trap in a hasty manner. Therefore, AO did not gain any benefit by argue the matter that PW3 did not verify the genuineness of report and antecedents of AO before registration of crime.

23. Case property vide item NO.48/2009 Mos.1 to 7 (non-valuable property), is liable for destruction and valuable property ie., MO.8 cash of Rs.80,000/- vide item

NO.47/2009 of this Court, is liable to be returned to DSP, ACB,CIU, Hyderabad, on expiry of appeal time, with a direction to deposit the said amount to the concerned head of account of Government as it is brought to the notice of Court that amount of Rs.80,000/- was reimbursed to defacto complainant by the investigating officer by withdrew from concerned head of account of Government, subsequent to trap during investigation of the case.

14 CC 02/2011, ACB COURT/VSP

24. In the result, Accused Officer is not found guilt for the offence punishable under sections 7 and 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988 and consequently Accused Officer is acquitted under Sec.248(1) of Cr.P.C. for both the counts above.

25.Bail bonds of accused officer shall stand discharged on expiry of appeal time. Mos.1 to 7 vide item NO.48/2009 of this Court is ordered to be destroyed and

MO.8 cash of Rs.80,000/- (item No.47/2009) is ordered to be returned on expiry of appeal time to DSP,ACB,CIU,HYD directing him to deposit the same in the concerned head of account of Government.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me

in open court on this the 14th day of June, 2016.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

On behalf of Prosecution:

PW1-A.Satyanarayana (Mediator for pre and post trap proceedings) PW2-P.Kamalarao (the then Administrative Officer at Integrated check post, Purushothapuram of Srikakulam District). PW3-U.S.Srikrishnudu (the then incharge of DSP,ACB, CIU, Hyderabad and trap laying officer).

On behalf of Defence:Nil.

No.of Exhibits marked on prosecution side:

Ex.P1/28.8.2009:Copy of FIR and complaint attested by the mediators.

Ex.P2/ 29.8.2009 :Pre trap proceedings/Mediators' Report NO.I.

Ex.P3/ - :Made up file containing photostat copies of papers of the vehicle consists 24 sheets.

Ex.P4/29.8.2009:Rough sketch of scene of offence.

Ex.P5/29.8.2009:Post trap proceedings/Mediators' Report NO.II.

Ex.P6/ -:Copy of transit pass.

Ex.P7/2.6.2009 :Copy of agreement of sale by M./s.L&T Limited, Chennai.

Ex.P8/ - :Copy of sale invoice of M/s.Komats, Asia Pecific Pvt.Ltd., Singapore. Ex.P9/22.5.2009: Copy of bill of Lading.

15 CC 02/2011, ACB COURT/VSP

Ex.P10/3.8.2009:Copy of bill of entry. Ex.P11/20.8.2009:Copy of TR 6 challan towards customs duty. Ex.P12/25.8.2009:Notice issued by AO to consignee.

Ex.P13/ -:Copy of LR issued by South North Transport. Ex.P14/28.08.2009:Report of defacto complainant-G.Bhaskar. Ex.P15/28.08.2009:FIR in Cr.No.30/ACB-CIU-HYD/2009. Ex.P16/5.9.2009:Letter from Airtel to JD,ACB, Hyderabad along with Data statement. Ex.P17/8.11.2010:G.O.Ms.No.1338 Revenue (Vig.I) Department. . No.of Exhibits marked on defence side: Nil

Material Objects marked:

M.O.1 :One sealed cover containing sample packet of Phenolphthalein Powder used in pre trap proceedings.

M.O.2 :One sealed cover containing sample packet of Sodium carbonate powder used in pre trap proceedings.

M.O.3 :One sealed cover containing sample of Sodium carbonate powder used in post trap proceedings.

M.O.4:One sealed bottle containing resultant solution collected after conducting chemical test to the right hand fingers of AO.

M.O.5:One sealed bottle containing resultant solution collected after conducting chemical test to the left hand fingers of AO (now empty due to leakage).

M.O.6:One sealed bottle containing Resultant solution after conducting chemical test to the inner linings of the left side pant pocket of AO (white colour solution).

M.O.7 :Pant of AO.

M.O.8:Tainted amount of Rs.80,000/-

III ADJ-CUM-SPL.JUDGE

FOR SPE & ACB/VSP

Copy to the the Deputy Superintendent of Police, ACB, Central Investigation Unit, Hyderabad.s 16 CC 02/2011, ACB COURT/VSP

JUDGMENT AND CALENDER

CALENDER CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-III ADDL.

DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM

C.C.02/2011

(Cr.No.30/ACB-CIU-HYD/2009) D A T E O F:

REPORT OF COMPLAINANT :28.08.2009 APPREHENSION OF ACCUSED :01.03.2011 RELEASE ON BAIL :08.09.2009 COMMENCEMENT OF TRIAL :26.02.2016 CLOSE OF TRIAL :26.04.2016 SENTENCE OR ORDER :14.06.2016

EXPLANATION FOR DELAY AND REMARKS:-

Accused Officer appeared and received copies of documents. Thereafter charges for the offence under sections 7 and 13(2) read with section 13(1)(d) of Prevention of Corruption Act against Accused Officer framed on 25.6.2012. Thereafter, AO is not cooperated and took several adjournments. PW1 to PW3 and Exs.P1 to P17, and MOs.1 to 8 are marked. Later Accused Officer is examined under section 313 Cr.P.C., Then the case is posted for defence evidence. No regular Officer to this Court is posted for five months. At last detailed written arguments submitted on both sides. Judgment is

pronounced on 14.06.2016 and the Accused Officer is not found guilt for the offence

punishable under sections 7 and 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.

JUDGMENT IN CALENDER CASE NO.2/2011 ON THE FILE OF III ADDITIONAL DISTRICT

JUDGE-CUM-SPECIAL JUDGE FOR SPE AND ACB CASES,VISAKHAPATNAM

COMPLAINANT

State represented by Deputy Superintendent of Police, Anti-Corruption Bureau, Central Investigation Unit, Hyderabad.

NAME OF THE ACCUSED:

Sri Malla Nooka Raju, S/o M.Ramu Naidu, aged 52 years, Commercial Tax Officer, Kasibugga Circle, Srikakulam District.

OFFENCE : U/secs.7 and 13(2) r/w sec.13(1)(d) of Prevention of Corruption Act, 1988. FINDING OF THE COURT: AO IS NOT FOUND GUILTY U/secs.7 and 13(1)(d) r/w sec.13(2) of Prevention of Corruption Act, 1988.

S E N T E N C E: Accused Officer is NOT FOUND GUILTY.

In the result, Accused Officer is not found guilt for the offence punishable under sections 7 and 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988 and consequently Accused Officer is acquitted under Sec.248(1) of Cr.P.C. for both the counts above. Bail bonds of accused officer shall stand discharged on expiry of appeal time. Mos.1 to 7 vide item NO.48/2009 of this Court is ordered to be destroyed and MO.8 cash of Rs.80,000/- (item No.47/2009) is ordered to be returned on expiry of appeal time to DSP,ACB,CIU,HYD directing him to deposit the same in the concerned head of account of Government.

III ADDITIONAL DISTRICT JUDGE

CUM-SPL. JUDGE FOR SPE AND ACB CASES,

VISAKHAPATNAM

17 CC 02/2011, ACB COURT/VSP