CC.07/20101
IN THE COURT OF THE III ADDITIONAL DISTRICT JUDGE-cum-SPECIAL JUDGE FOR
SPE & ACB CASES, VISAKHAPATNAM
Present : SRI R.V.V.S.MURALI KRISHNA,III Addl. District Judge-cum-Special Judge for SPE & ACB Cases, Visakhapatnam
Saturday, this the 23rd day of December, 2023.
C.C.No. 07 of 2010
Between:
The State represented by the Inspector of Police, Anti Corruption Bureau, Vizianagaram Range, Vizianagaram.
.... Complainant
And:
Smt. Gorle Sakunthala Bai, W/o, Visweswara Rao, 37 years, ICDS Supervisor, Galavilli Sector, Balijipeta Mandal, ICDS Project Rural, Bobbili, Vizianagaram District.
..... Accused Officer
This case was coming 19.12.2023 for final hearing before me in the presence of Learned Special Additional Public Prosecutor for the complainant and of
Sri.S.Krishna Mohan, learned Advocate for Accused Officer and the matter having been stood over for consideration till this day, this court delivered the following :
J U D G M E N T
1.The Inspector of Police, Anti Corruption Bureau, Vizianagaram range filed charge sheet against the Accused Officer for the offence Under Section.7, 13 (1) (d) r/w 13 (2) of P.C.Act, 1988 in Crime No.08/RCT-ACB/VZM/2008.
2.The story of the prosecution which leads to file charge sheet in brief is as follows: The accused officer is working as Supervisor at Galavilli sector,
Balijipeta mandal, ICDS project, rural, Bobbili from 28.04.2006 to 08.06.2008 on contract basis. By virtue of her official post she falls under the category of public
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servant U/Sec. 2(c) of Prevention of Corruption Act, 1988, herein after called as AO for the sake of brevity. One Yammala Chanti S/o Rajayya is herein after called as
PW1 for the sake of brevity. The two girl child's of PW1 are entitled for the benefit of insurance scheme under Girl Child Protection. The PW1 applied for the monetary benefit on 23.06.2007. In this regard he met the AO and enquired about his application on that the AO demanded Rs.5,000/- bribe to get the sanction proceedings of the collector under girl child protection scheme. On 26.05.2008 he met the AO and gave Rs.2,000/- for obtaining the sanction proceedings after receipt of the said bribe the AO asked the remaining bribe and instructed him to bring the remaining bribe of Rs.3,000/-. The AO further instructed until the remaining bribe is paid he would not get the sanction proceedings, when the PW1 expressed his inability to pay such huge amount the AO reduced the bribe to Rs.2,000/- and asked him to pay the said bribe by 09.06.2008 at her office Bobbili. As he has no intention to give bribe he approached the ACB office on 08.06.2008 and gave report.
3.After verifying the genuineness of the contents of the report and antecedents of the AO through LW9, the DSP ACB registered the case in
Cr. No. 8/RCT-ACB/VZM/2008, U/Sec.7 of PC Act, 1988.
4.The DSP, ACB secured the mediators and made all arrangements for laying trap and proceeded to the office of AO along with PW1, mediators and other team at 05:45 PM. During the said process PW1 entered into the office of AO. On her further demand PW1 gave Rs.2,000/- to AO. The AO received the tainted cash with her right hand and counted it with both hands and kept in her hand bag. The
AO hand over the sanction proceedings to PW1. The PW1 gave pre-arranged signal.
On receiving the pre-arranged signal from PW1 the DSP along with mediators went into the office of AO and conducted chemical test to both the hands of AO which turned into pink and also conducted Chemical test to the inner lining of hand bag which resulted positive. The DSP seized the tainted cash in hand bag and arrested
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the accused, sent her to the judicial custody. During the course of investigation the
IO B. Atchutha Rao examined the PWs 1 to 3, PW5 and LW6. And recorded their statements. The inspector examined the LWs 5 and 7 and recorded their statements and got recorded the statement of PW1 u/sec.164 Cr.P.C. the investigation reveals that the AO accepted the bribe of Rs.2,000/- from PW1 as gratification other than her legal remuneration to hand over the sanction proceedings said to have been issued by the collector under girl child protection insurance scheme pertaining to the PW1 children. The investigation further reveals that the sanction proceedings were not issued by the project director and the AO also liable for the offence punishable for forgery for issuing the same as genuine.
Since the AO was retired as on the date of charge sheet no sanction order is required for prosecution hence the charge sheet.
5.This case was taken cognizance for the offence Under Section.7, 13 (1)
(d) r/w 13 (2) of PC Act, 1988. On appearance of Accused Officer, copies of all documents as required Under Section 207 of Criminal Procedure Code were furnished to him. When examined Under Section 239 of Criminal Procedure Code for the alleged offence, the accused has denied the prosecution case. Charges Under
Section.7, 13 (1) (d) r/w 13 (2) of PC Act, 1988 have been framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
6.In support of the prosecution case the prosecution cited as many as 10 witnesses and examined 9 witnesses and got marked Exs.P1 to P18 and Ex.X1,
Mos.1 to 7 and closed their evidence. After closure of prosecution evidence the
Accused Officer is examined U/Sec. 313 Cr.PC and he denied the incriminating material put before him and got marked D1 to D7 .
7.Heard the arguments of both sides.
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8.The prosecution argued that accused is working as project director.
The PW1 approached her for issuance of sanction order proceedings relating to her children insurance policy. The AO demanded Rs.5000/- to give the proceedings and also threatened unless he gave the bribe she will not return the proceedings. The
PW1 paid Rs.2000/- but the accused not satisfied and demanded further bribe and again the AO demanded Rs.3000/- on request of PW1 he reduced the bribe to
Rs.2000/- and asked him to bring the same by 09.06.2008. As PW1 has no intention to give bribe, he gave report to the ACB and ACB laid trap. All the prosecution witness supported the prosecution case. The accused admitted the presence of AO at the time of trap and also admitted the receipt of bribe. The only contest of the accused that the PW1 received the said amount under the impression as a loan re- payment. But the defence not adduced any evidence on that aspect. The plea of AO is an after thought. The prosecution has produced substantial evidence in the form of oral and documentary and material objects to prove that the AO received the bribe. And relied upon the decisions reported in Rajiv Yadhav Vs State of Uttar pradesh in Crl.A.No.339-340 of 2014 dt.10.02.2022 where in it was held that "We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief
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examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion".
9.Whereas the defence argued the accused did not commit any offence. The
PW4 borrowed an amount of Rs.25000/- from the accused to meet the expenditure incurred for the puberty function of PW4’s daughter. When the accused demanded for repayment the PW4 developed grudge and in collusion with pWs 1& 2. She implicated the accused falsely in this case. On the day of trap the PW4 gave
Rs.2000/- to the accused stating that she is repaying part payment debt. The Pws 1 & 2 are the Hench men of pw4. On that day of trap the ACB police took the pw4 to
Vizianagaram ACB office in late hours to get favourable statements. The prosecution not cited the witnesses who did not support to the prosecution even they recorded the statements of those witnesses. The prosecution not obtained the sanction to prosecute the accused. As per the prosecution case the accused is public servant but the prosecution not obtained any sanction to prosecute the accused as contemplated U/Sec.19 of the Act. The accused further contending that the AO submitted tour dairy to PW5 who acknowledged the same. As per tour dairy
Ex.D7 the accused attended Korada Veedhi and Gangula vedhi on 21.05.2008 from 7:30 AM to 7:00 PM so also on 26.05.2008 she visited Siripurapu veedhi from 7:30
AM to 6:30 PM. The PW5 also deposed in his evidence When the supervisors were touring in any particular area they had no occasion to attend ICDS office and if they attended they should sign in the attendance register. As per the evidence of
Pws 1 & 2 they went to the AO on 21.05.2008 and 26.05.2008 to enquire about their applications and accused demanded bribe to give the bonds. Since the accused not attending the office on 21.05.2008 and 26.05.2008 the question of demanding bribe does not arise.
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10.The accused further contending as per 164 Cr.P/C statement the PW1 visited the ACB office prior to 08.06.2008 and the ACB officials asked him to come with the proposed bribe on 08.06.2008. On 08.06.2008 the PW1 went to the ACB office without carrying the amount on that the ACB people asked him to come on 09.06.2008 but Ex.P2 report contains date as 08.06.2008 with an overwriting.
11.The accused further contending on the day of trap an Anganwadi meeting was held in ICDS office, number of Anganwadis appears to the meeting. In those circumstances the receiving bribe on that day is far away from the proof and relevancy. The prosecution contending the accused gave the forged proceedings with the signature of PW6 but the investigating officer did not take any action against accused for forgery. If really the accused gave forged proceedings the IO shall definitely register the case against the accused but no such proceedings were initiated. The RFSL report reveals that the questioned signatures were not written by the person who signed standard signatures i.e., PW6. But the investigating officer not collected specimen handwriting of accused to show that she committed forgery. All the proceedings were created for the purpose of this case and prays to acquit the accused. In support of his contentions he relied upon the following judgments.
1. In K.P.Kolanthai vs. State By Inspector of Police, wherein it was held that ‘In the instant case, the foundation of the prosecution case of the demand made by the Appellant for bribe has, as observed already, been shaken to a great extent. In any event, it casts a grave doubt on the events that were alleged to have taken place in the matter of pre-trap proceedings, giving bribe to the Appellant and recovery of bribe money from the Appellant. The version of the prosecution, as to demand and receipt of the bribe money, as narrated by the prosecution witnesses,
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is suspicious and does not inspire any confidence. Serious doubts arise as to the manner in which bribe was stated to be demanded, offered and received, as also to the place where the offer and receipt took place. The prosecution has miserably failed to prove the foundational facts, viz. Demand, acceptance and recovery of the amount of illegal gratification, beyond all reasonable doubt. When the prosecution is not able to prove its case by proving the foundational facts, it cannot take advantage that the Appellant/accused has not come out with a probable explanation in defence. Therefore, this court is of the opinion that the prosecution has not been able to prove the guilt of the Appellant beyond all reasonable doubts.
As already discussed above, the entire circumstances, under which the case was stated to be registered, the trap witnesses being summoned even prior to the registration of the case, the bribe is alleged to be accepted by the accused, are highly suspicious and shrouded with doubts and as such, it is the difficult to sustain the conviction on the basis of such dubious evidence.
In view of the above infirmities and inherent improbabilities, this court has to necessarily come to the conclusion that the entire trap proceedings was bristled with suspicious circumstances and doubt, as the prosecution, before raising presumption Under Section 20 of the Prevention of Corruption Act, 1988, has miserably failed to establish the foundational facts regarding guilt of the accused by cogent evidence, whereas the Appellant has rebutted such presumption by preponderance of probabilities and thereby, the Appellant is entitled to be acquitted. The case facts in the judgment cited supra are not applicable to the present case facts.
2. Sivaranjini vs State of Karnataka, where in it was observed that a complaint was lodged on the same date and it appears even before registration of the FIR trap witnesses were called, all these facts improbablized the version of the
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prosecution and the trial court has opined in the circumstances that there were some deliberations before recording the FIR, since the complainant was not available for the cross examination the view taken by the trial court could not be said to be the one which was not possible in the prevailing scenario. In the present case the accused arguing that the trap was laid on 09.06.2008 but where as the
P.W1 went to the ACB Office on 08.06.2008 without carrying the bribe amount on that he was instructed by the DSP to come on the next day on which date trap was laid, therefore there chances for deliberations and it further observed in the said judgment it was laid down that the allegation of bribe taking should be considered along with other material circumstances, demand was to be proved by adducing clinching evidence. That the fact indicating the complainant was aware of the amount was not with hold by the accused, this court disbelieved the allegation of the complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural. The case facts in the judgment cited supra are not applicable to the present case facts. The case facts in the judgment cited supra are there was a discrepancy with regard to the recovery of cash whether it was lying on the table or inside the drawer of the table. It was held that money was not recovered from the possession of the accused. The colour of the wash was not pink, here in this case the accused admitted the receipt fo money from the P.W1,
However, she pleaded other reasons.
3. In Dr.Satyavir Singh and Others vs. State of U.P and State Inspector
of Police, Visakhapatnam vs. Surya Sankaram Kurri reported in 2006 (2)
ALD (Crl.) 564 (SC) ‘wherein it was held tha the non examination of material witnesses. As could be seen from Ex.P13 the prosecution story is doubtful. The prosecution argued that the statements of all those witnesses were already incorporated in the medaitors report what they stated was already on record the
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accused not raised any objection that they have not stated like that, accordingly above ration of judgment is not applicable to the present case facts.
4. In K.Narsappa vs State of A.P. rep. By Public Prosecutor reported in 2022 (3) ALT (Crl.) 333, Telangana State ‘wherein it was held that (1) Protest
Petition – When the investigation was completed by not finding any case against the parents-in-law of P.W2 and charge sheet filed, the only option left to redress any grievance is Under Section 319 of Cr.PC on the basis of the evidence on record or to tile a protest petition before the concerned court.
(2) Arrest of Non Charge-Sheeted Accused – Though the appellant had become functus officio on account of completing investigation and filing charge sheet, the question of the appellant being in a position to arrest the non charge – sheeted accused in the same crime does not arise.
The case facts in the judgment cited supra are not aptly applicable for the present case facts in the presence.
5. In Trilok Chandra Maurya vs. State rep.by C.B.I, Hyderabad, ‘wherein it was held that the prosecution failed to prove the demand and acceptance of the bribe and also existence of any official favour. Therefore, the accused is entitled for acquittal.
6. In Kumar vs. State rep. By Inspector of Police in Crl.A.No.409/2017 on the file of Apex Court ‘wherein it was observed that the Investigating
Authorities are responsible for suppression of facts. The Investigating Authority has a responsibility to investigate in a fair manner and elicit truth.
In Pooja Pal vs. Union or India and Others in Crl.A.No.77/2016 arising
out of SLP Crl.No.1458/2015 ‘wherein it was observed investigation should be un biased and should be aimed to bring out the truth without suppressing any material
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facts. The case facts of judgment cited supra are not applicable to the present case facts.
7. In Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and
Another reported in 2019 0 Supreme (SC) 1148 ‘wherein it was observed what ultimately is the aim or significance of the expression “fair and proper investigation” in criminal jurisprudence? It has a twin purpose; Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons. The case facts of judgment cited supra are not applicable to the present case facts.
12.Now the point for consideration:
Whether the prosecution has proved the guilt against the accused for the offence U/Sec.7, 13 (1) (d) r/w 13 (2) of PC Act. Beyond reasonable doubt or not?
13. Point:
It is the case of the prosecution that accused is working as project director. The PW1 approached her for issuance of sanction order proceedings relating to her children insurance policy. The AO demanded Rs.5000/- to give the
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proceedings and also threatened unless he gave the bribe he will not return the proceedings. The PW1 paid Rs.2000/- but the accused not satisfied and demanded further bribe and again the AO demanded Rs.3000/-. On request of PW1 she reduced the bribe to Rs.2000/- and asked him to bring the same by 09.06.2008.
As PW1 has no intention to give bribe he gave report to the ACB and ACB laid trap.
The oral evidence of PW1 goes to show that he is the native of Vengalarayapuram,
Baljipeta Mandal, Vizianagaram District. In August 2012 he shifted to Chennai for his livelihood. He has two daughters namely Deepika and Divya. Deepika was born in
August 2002 and Divya was born in July 2004. He gave an application in June,2007 to
AO., seeking benefit as per girl child protection insurance scheme for his two daughters along with enclosers, thereafter for 6 months he roamed around the office of AO., but no progress.
14.On 21-5-2008 he met AO., in her office. She demanded Rs.5000/- as bribe to handover sanctioned proceedings. 5 days later he approached the AO., and she asked him about bribe amount. He told AO., that as he has only Rs.2000/- and he handed over the amount to her. AO., demanded remaining Rs.3000/- for which he told her that he cannot pay Rs.3000/- more. Then AO., reduced the bribe to Rs.2000/- and asked him to pay the said amount on 9-6-2008. Aggrieved by the said demand he approached the office of ACB., Dy.SP., Vizianagaram and lodged a complainant on 8- 6-2008 .,under Ex.P2 . He informed the demand made by AO to his wifw Pw2.,
15.On receipt of report the Inspector Ramesh informed him to come on 9-6-2008 at 1-30 PM., along with proposed bribe amount of Rs.2000/-. Accordingly he went to
ACB., office on 9-6-2008. Dy.SP., called him at 2 PM., and introduced mediators, staff etc., and vice versa. Thereafter the Dy.SP., gave his report to the mediators and asked them to ascertain its genuineness from him. The mediators had gone through
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the contents and enquired him and ascertained the contents of report are true. The mediators attested the copy of report. DY.SP., enquired him whether he brought the proposed bribe amount or not. On the instructions of DY.SP., he handed over the said currency notes of Rs.2000/- ( 500x4) to one of the mediator who noted the serial numbers of currency notes. Then he was asked to wait outside for some time. Some time later again he was called inside the room by DY.SP., One constable kept the tainted amount in his left side shirt pocket. The DY.SP., instructed him not to touch the said currency notes until further demand made by the AO. The DY.SP., also instructed him come out the office of AO and gave signal by wiping his face with hand kerchief indicating the demand and acceptance by bribe monger. Dy.SP instructed one of the mediators to act as accompanying witness.
16. Thereafter they left the ACB., office , Vizianagaram at about 3-40Pm and reached Poolbag Anganwadi project director office, Bobbili at 5pm. Then himself, one of the mediators were asked to get down from the vehicle and DY.SP., reiterated the earlier instructions to them. Accordingly himself, one of the mediators, proceeded to the office of Integrated child development scheme(rural), Bobbili. One Inspector waited just out side the office. himself and mediator went into the office room of A.O., which was in the first floor of building. When he enquired about AO's availability, he learnt that she was engaged in a meeting. So, himself and mediator waited out side the office. When they were waiting, his wife came there. At about 5-40PM., himself , his wife and mediator went into the office. they went into the first room in the first floor of the building. AO., was in a meeting in the second room. On seeing them she came out to the first room. AO., asked him for the bribe amount and showed the sanction proceedings. He handed over Rs.2000/- to AO., who received it with her right hand and kept in her hand bag. AO., handed over sanction proceedings with her left hand to him.
He came out into the Veranda of the first floor and gave pre arranged signal to trap
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party. Immediately DY.SP and his trap party came to the office room of A.O., and asked him to wait outside. After 30 minutes Dy.SP called him inside and asked him to narrate the events. Accordingly he narrated the transactions between him and AO.,
DY.SP confronted the version of AO and he asserted that AO., demanded and received the bribe. DY.SP examined him and recorded his statement. He handed over EX.P3 proceedings to Dy.SP., Thereafter his statement was recorded by JFCM,Bobbili.
17. It was elicited in the cross examination that in June,2007 he presented the application before AO., but he cannot say the date and time of presentation. There was Anganwadi center in his village. One Vamireddy Sarada was the incharge of the said center. The said Sarada told him that he can file an application under girl child protection Insurance scheme. In total period of 6 months he went to office of AO in 8 times. In all the said times he met the AO. He cannot say that dates and time of said visit to the office of AO. He enquired with Sarada about the time limit to attend his application , but she could not reveal the time limit to sanction the proceedings. As the
AO did not allow him to meet her superior officers, he could not meet them. He mentioned in Ex.P2, the AO., demanded him to pay bribe for the purpose of issuance of bond and so also before Dy.SP., ACB. He did not observe on 21-5-2008 as to how many staff were there in the office of AO., he talked with AO., for about 1 to 1½ hour.
On 26-5-2008 he talked with AO., for one hour in her office. On that day, on seeing him, the AO come down to the ground floor as such he could not observe as to how many staff were there in the office. He alone went to her office on both days. He denied that he stated in his 164 Cr.PC statement that on 26-5-2008 PW2 also accompanied with him to the office of AO as in EX.D1. He denied that he did not met
AO on 21-5-2008 and 26-5-2008 as she was not at all present in her office on those dates. After 26-5-2008 he met AO., on 9-6-2008. On 8-6-2008 alone he went to the
ACB office. himself alone went to the ACB office. He came to know about the ACB
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office by seeing TV 9 channel. He noted down the phone number of the ACB office from
TV channel. He ascertained the address of ACB office by making a phone call to the office. He denied that himself and his wife went to the ACB office as per his 164 Cr.PC statement as shown in Ex.D2 . He got scribed Ex.P2 with the help of his villager. He does not remember who scribed it. The scribe did not accompany him to the ACB office.
He denied that even before Ex.P2 he consulted ACB office. On 9-6-2008 himself and his wife were alone present when the AO., entered into the first room on seeing them.
He denied that entire staff of District were present at first room at that time. on taking bribe amount from him AO., picked out the sanction proceedings from her hand bag and delivered the same to him The office of AO., was situated in the first floor. He was moving around the office of AO., from the time of Ex.P1 for the purpose of receiving proceedings from AO., Recently he received the bonds in the name of his children .
Sarada teacher informed him about the bonds. One supervisor delivered the bonds to him at his house.
19. He denied that AO., did not demand any bribe from him at any time and that she did not accept any bribe from him and that he became an instrument in the hands of
Sarada teacher to file a false case against the AO. He denied that Sarada teacher was due of Rs.25,000/- to AO., as hand loan and that on 9-6-2008 she paid Rs.2000/- to
AO., towards part payment of said due. He denied that she did not hand over any proceedings to him on 9-6-2008 as deposed by him and that it must have been handed over to him if any such proceedings by Sharada only. He denied that himself and
Sharada created the said proceedings and that AO., had nothing to do with the said proceedings and she never promised to give such proceedings to him. He denied that
Sarada filed false case against the AO., through him on account her grudge against
AO.,
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20The evidence of PW1 is corroborated with the evidence of PW2 who is the wife of PW1 with regarding’ to the material facts that on 21.05.2008 and 26.05.2008 the
PW1 & 2 went to the office of accused and the accused demanded bribe to gave the sanction proceedings.
21.The evidence of PWs 1 & 2 is also corroborated with the evidence of PW3 who is independent mediator and PW8 the then DSP who laid trap against accused.
The PW3 deposed that on the instructions of his superiors he went to the ACB office on 09.06.2008 the DSP introduced the PW1. The PW3 ascertained the genuineness of
Ex.P2. The DSP explained the significance of chemical test . He demonstrated the chemical test. The PW1 gave the proposed bribe of Rs.2000/- ie., 4 * 500/- rupee notes the PW3 note down the numbers. and gave to one constable who applied phenolphthalein powder to the currency notes and kept in the shirt pocket of PW1. The
DSP conducted chemical test to the both hands of the constable. The colour of solution was changed into pink. The DSP also conducted chemical test to the other staff and mediators and there was no change in the colour of solution. The PW8 instructed the
PW1 not to touch the cash till it gave to the Accused on her further demand and on receipt of that amount by the accused gave a signal to PW9 by wiping his face with handkerchief and further instructed to PW9 on receipt of the signal from Pw1 to relay signal to the other team. The DSP instructed Pw3 to follow PW1 and observe the things happening there.
22.After completion of pre-trap proceedings the ACB team proceeded to ICDs office bobbili at 4-30 pm by the time the accused is in meeting, he was waiting in the veranda in the visible distance from them. at 5:45 PM The AO., came out from the 2 nd room into the first room to meet PW1 and PW2. The AO., asked PW1 and PW2 as to whether they brought bribe amount. The AO., taken the bribe amount from PW1. PW1 came out and relayed the pre arranged signal. Immediately ACB., officials came.
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Then they all entered into the office of AO., Dy.SP., disclosed his identity to the person and ascertained her identity particulars as AO., Dy.SP., got conducted the chemical test to both hand fingers of AO and the test results proved positive. Dy.SP., questioned AO., with regard to the amount and her narrated version was incorporated in the proceedings. While narrating her version, AO., picked out the currency notes from her hand bag. As per the instructions of Dy.SP., he received the said currency notes and verified serial numbers and the denomination of the said currency notes with that of the particulars noted in the pre trap proceedings and found tallied the
Dy.SP., got conducted the chemical test to the inner linings of hand bag of AO., from which MO5 was produced and it yielded positive result.
23.The PW3 was cross-examined at length but his evidence not impeached on the material facts. He denied the suggestion that that the AO., put forth her version that one
Vemireddy Sharada paid the amount to her for part payment of previous debts and that the said version was not recorded.
24.It is the case of the defence that PW4 borrowed Rs.25000/- from PW1 when Pw1 demanded for re payment she developed grudge and got filed the case through PWs 1 & 2. Now coming into the evidence of PWs 4 she denied the alleged debt transaction between PW1 and herself. She also denied on the day of trap she gave the tainted cash to accused. And nowhere it was suggested to PWs 1 to 3 that PW4 gave the tainted cash to the accused.. so also the accused not adduced any positive evidence to prove the alleged money transactions between accused and PW4 and basing on that transaction the present case was came into existence.
25.On perusal of the evidence of PW3 his presence was corroborated by the evidence of PWs 1, 2 & 8. The accused also not disputed the presence of PW3 during post trap proceedings. The accused categorically suggested the things happened in the pre trap and post trap proceedings and PW3 categorically answered the suggestions.
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26.In view of the evidence of PWs 1 to 3 it is evident that PW1 filed application for the benefit of insurance claim to his girl child and the said application is processed by the accused and PW1 made enquires about the status. The accused demanded
Rs.5000/- bribe. The PW1 already paid Rs.2000/- still the accused demanded another
Rs.3000/- and reduced it to Rs.2000/- and received it on 09.06.2008. the said evidence was also corroborated with the evidence of PW8 who is the then DSP. The PW8 deposed in his evidence 27.
1.He is the then DSP On 8.6.2008 at 8.00 a.m. inspector police
S.Ramesh of Vizianagaram range informed him about receipt of complaint in this case. He instructed him to ask the complainant to come on the next day and to verify the genuineness of that complaint and verification of the accused.
2.On 9.6.2008 he visited office of DSP, Vizianagaram range at 1.00 p.m. by that time pw.1 was already present there. The inspector of
Vizianagaram secured two mediators Pw.3, LW.4 Masarapu Satyam. The inspector informed him that the complaint is genuine and the accused carries bad reputation and endorsed on the complaint. he has registered the same as case in Cr.No.8/RCT-ACB/VZM/2008 at 1.30p.m. after obtaining permission from competent authority. under Ex.P.18 .
3.From 2.00 p.m. to 3.15p.m. he has conducted pre-trap proceedings in the office of DSP, Vizianagaram under Ex.P.7 in the presence of Pw.3 and
Lw.4. At 3.20p.m. the raid party along with PW.1 left office and reached ICDS office, Bobbili at 5.00p.m. He asked PW.1 to get down from vehicle and go to accused office and asked him to give bribe amount only on demand of accused and if she accepts relay signal to the inspector S.Ramesh. He has instructed
PW.3 to accompany PW.1 as witness and observe the things in close proximity.
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He has also instructed inspector Ramesh to be in the site of PW.1 to give signal and to relay the same to them. The raid party took position on the road leading to Poolbogh to Old bus stand.
4.At 5.50p.m. they received signal from S.Ramesh and went to the
ICDS office situated 1st floor of that building and found complainant in the 2nd room of the building in which they found two ladies sitting in the chairs and two ladies standing in that room. After asking PW.1 to wait out side the room he has disclosed his identity to the lady sitting in the plastic chair opposite to the complainant , She disclosed her identity as accused (Gorle Sakunthalabai).
5.He got prepared sodium carbonate solution in two glasses and asked the accused to rinse her both hands in those solutions. When she rinsed her hands, the solution in which her right hand fingers turned in to pink colour and the left hand solution turned in to light pink. He got those result solutions into two bottles and affixed slips with their signatures.
6.He has questioned accused and got recorded her version in Ex.P.13 mediators report. On being asked by him for bribe amount she opened her
MO.7 handbag and handed over MO.5 tainted cash to the mediators.The note numbers tallied with the numbers noted in Ex.P.7 hence he seized the same. He got conducted chemical test to the inner lining of MO.7 handbag which gave positive result by turning the solution into light pink. He called PW.1 and enquired him in the presence of AO and his versions was incorporated in
Ex.P.13. he has confronted PW.1’s version to accused and incorporated her version in Ex.P.13.
7.There he has examined Routhu Lakshmi, Sadapu Nirmala, PW.2,
Pw.3 and PW.5 and recorded their versions in Ex.P.13. There he has seized
Ex.P.1 application of PW.1’s daughter, Ex.P.8 list of applications, Ex.P.9 GCPS enrollment register and attendance register of ICDS, Rural, Bobbili. He got
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prepared Ex.P.12 rough sketch through their staff he arrested accused and concluded proceedings under Ex.P.13 at 11.00p.m. and supplied copy of Ex.P.13 to accused.
8. In the cross-examination it was suggested that AO offered explanation at the time of alleged trap that she has not accepted any bribe,
PW.4 called her to return the amount already borrowed by her when AO came out, the PW.4 put the cash in AO’s hand bag and he suppressed the explanation of AO and he has not verified the investigation done by PW.9.for which the PW8 denied. He also denied the suggestion that the AO stated in her explanation along with tour diary that she was not in the station on the alleged dates when she said to be demanded bribe on 21.05.2008 and 26.05.2008.
28.The defence relied on Ex. D7 tour dairy which was acknowledged by pW5 by relaying the Ex.D7 the defence argued on 21.05.2008 and on 26.05.2008 the accused was not in the office therefore the question of demanding bribe does not arise. The PW5 categorically deposed When the supervisors were touring in any particular area they had no occasion to attend ICDS office and if they attended they should sign in the attendance register. The defense not choose to summon the attendance register, the prosecution also not take steps to produce the attendance register of accused relating to the alleged dates. There is no specific suggestion from the defence that on 21.05.2008 and 26.05.2008 the accused not attended the office. Pw 5 deposed that he cannot say whether AO attended the office on 21-52008,and 26-5-2008 unless he verified the records.
29.The PW5 deposed the procedure of process the application he deposed The
AO., made an entry on 23-6-2007 about receipt of Ex.P1 application. On 29-2-2008 after consolidating all the applications received from different persons, he placed Ex.P1
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before the selection committee. He prepared consolidation list for all applications
under Girl child protection scheme. He has been one of the member in selection committee. The members are Dy.Educational officer, DY.medical and health officer,
RDO., and project director. After the file is placed before selection committee it will be sent to for financial approval from the District collector. After approval relating to finance from the district collector, they will issue proceedings intimating about the sanction amount under girl child protection scheme.
30.The evidence of PW6 is that she was the convenor for the selection committee of child protection scheme. The other members were child development
Project Officer, DEO, DMHO, and RDO. The committee used to approve the list of selected beneficiaries and forwarding the same for approval of the Collector. . The purported signature under the head of Project Director and District Collector in Ex.P3 is not that of him. He never put any such signature. After forwarding the selected list to the
District Collector, no such proceedings like Ex.P3 were issued. The proceedings were to be issued only in the individual names. There was no practice of issuing of proceedings in joint names. Since there is no charge U/Sec. 465 of IPC the evidence of PW7 hand writing expert is not much relevant to answer the present charge. The evidence of
PW9 with regarding to the recording of statements and filing charge sheet
31.The prosecution argued that the accused admitted the receipt of tainted cash therefore the presumption U/Sec.20 of the PC Act came into operation which reads
Section 20 The Prevention of Corruption Act, 1988
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
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(a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
32.The accused contending that the accused not demanded any bribe from the
P.W1 on the alleged dates when the P.W1 said to be approached the AO at her office, the AO was not in the office, she was in tour programme, the AO already proved that fact through Ex.D7 which was admitted by the P.W5 and P.W5 categorically deposed that he cannot say whether the AO attended the office on those days or not, unless he verify the records. As could be seen from the Ex.P.13 after trap the Investigating Officer said to have been seized the attendance register also, but the said register was not brought on record. The prosecution intentionally suppressed attendance register which will reflects the true facts.
33.As could be seen from the record it reveals that the Investigating Officer seized the attendance register during the post trap proceedings but the same was not brought
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on record. Since the accused specifically contending that on that day she was not attended the office and she was on tour which was supported by Ex.D7 and the material witness i.e., P.W5 also not confirmed that on that day the AO attended the duties, contrary to the plea of defence the prosecution not placed the attendance register to disprove the defence contest that on the day of alleged demand she was elsewhere and to prove that on the day of alleged demands the AO was attended to the office.
34.The defence further argued that the prosecution examined the P.Ws.1 to 3 to prove the alleged demand of bribe, the P.W1 is the defacto complainant, P.W2 is his wife, P.W3 is the independent mediator. All the P.Ws.1 to 3 deposed that on the day of trap the AO enquired the P.W1 whether she brought the proposed bribe and demanded to give it and on her demand the p.W1 paid the bribe to AO, all the P.Ws.1 to 3 are interested witness. It is also evident from the evidence of P.W3 and 8 that apart from
AO three other staff members also in the same room. The Investigating Officer also incorporated their statements in Ex.P13 which reveals that the independent witnesses
Routhu Lakshmi and Sadepu Nirmala stated before the Deputy Superintendent of
Police that on the day of trap they were in ICDS Project Officer room, the ACB officials arrested the AO on the allegation that she received the bribe from the P.W1 except that their statements did not reveals that AO demanded the bribe from P.W1 in their presence. The factum of demanding bribe by AO from PW1 was not corroborated by the independent witnesses who were present at the time of the trap but the Investigating
Officer not cited them as witnesses.
35.On perusal of the evidence of P.W9 he denied that he suppressed the161 Cr.PC of Routhu Lakshmi as it will exonerate the AO, the Investigating Officer also denied the version of the AO. Both P.Ws.8 and 9 deposed that they have not visited the place mentioned in the tour diary to ascertain whether AO was visited those places on the alleged dates. As could be seen from the Ex.X1 which is explanation of AO on
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21.05.2008 and 26.05.2008 she was in tour to visit the Anganwadi Centres and her tour diary was submitted to the P.W5 and also mentioned that those diaries are enclosed to the Ex.X1, but the Investigating Officer denied the enclosures, but it is evident in Ex.X1 the AO stated that on 21.05.2008 and 26.05.2008 she was on tour but the Investigating
Officer not verified whether on those dates she was visited those places or not. As discussed in the earlier paragraphs the prosecution also not filed the attendance register to prove that on 21.05.2008 and 26.05.2008 the accused present in the office and demanded the P.W1 to give bribe. So also, the evidence of P.Ws.1 to 3 was also not corroborated with the statements of Routhu Lakshmi and Sadepu Nirmala who were said to be present along with AO at the time of trap. Therefore, it is doubtful whether the
AO demanded the bribe from P.W1 or not.
It was held in K.Shanthamma vs. State of Telangana ‘proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence
Under Section.7 of Prevention of Corruption Act. This is a case where demand of illegal gratification, the demand was not proved by the prosecution impugned judgment is set aside. The case facts in the judgment cited supra the prosecution failed to prove the demand and acceptance of bribe. The prosecution argued that the amount was recovered in the diary of the appellant, which was kept in her table drawer, she was in possession of keys of the table drawer, she herself opened the table drawer and produced the diary from her custody in which tainted notes were kept. The Apex Court observed that the proof of demand of bribe by a public servant and its acceptance by him is Sin Quo non for establishing the offence U/Sec.7 of the Prevention of Corruption Act. The 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 U/Sec.7 or 13 of the Act would not entile his conviction there under. In the present case also in view of the Ex.D7 it is doubtful whether the AO demanded the bribe on 21.05.2008 and 26.05.2008.
It was held in N.Sunkanna vs. State of Andhra Pradesh ‘where in it was held in this case unless demand of illegal gratification is proved proof of its acceptance will not follow. It is only on proof of acceptance illegal gratification that Presumption Under
CC.07/201024
Section.20 will arise. Mere recovery of tainted money from the possession of appellants cannot rise Presumption acceptance of illegal gratification. The case facts and judgment cited supra the prosecution not examined any other witnesses present at the time when the money was demanded by the accused and when the money was handed over to the accused. The only material available is the recovery of tainted cash from the possession of the accused. It is settled law that the mere possession of recovery of currency notes from the accused when proof of demand will not bring home the guilt of the accused Under
Section.7. In the present case also the prosecution not examined any witness who present at the time of demanding bribe and receiving the bribe.
36.Another point raised by the defence is that the prosecution alleged that AO issued a forged proceedings Ex.P3, but the Investigating Officer not charged the accused for the offence U/Sec.468 IPC and no chemical test was conducted to the Ex.P3. The Investigating
Officer obtained the specimen signatures from P.W6 to prove that those proceedings were not signed by her, but the Investigating Officer not collected any specimen signatures from
AO to show that she made those signatures, the prosecution not collected any evidence that the same was handed over by the AO.
37.It is the evidence of P.W1 that AO received the bribe with her right hand and counted it with both hands and kept the tainted cash in her hand bag and handed over the Ex.P3 with her left hand. The evidence of P.W3 also reveals that the chemical test resulted positive i.e., the right hand solution turned into pink and left hand solution turned into light pink.
Since the AO said to be gave the Ex.P3 proceedings to P.W1 with her left hand the Trap
Laying Officer ought to conduct chemical test to the proceedings to connect the Ex.P3 to the
AO. As could be seen from the evidence there is no evidence that the AO forged signature of
P.W6 on Ex.P3. In the absence of chemical test the prosecution also failed to prove that AO handed over the Ex.P3 to the P.W1. ON over all consideration of the evidence, initially the prosecution failed to prove that the accused approached P.W1 on 21.05.2008 and 26.05.2008 at her office where the AO said to be made demand of bribe to do official favour.
The prosecution also failed to prove that on the day of trap also the AO demanded the P.W1 to give bribe and on such demand the P.W1 gave the bribe and consequently the AO handed over the Ex.P3 proceedings. The prosecution suppressed the evidence of material witnesses who are present at the time of trap along with AO as well as also failed to place the material
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document i.e., attendance register. All the circumstances creates doubt on the prosecution story that the accused demanded the bribe from P.W1 to do official favour. On over all consideration of the evidence placed before me analyzed and discussed in the earlier paragraphs and in view of the ratios laid down in the judgments K.Shanthamma vs. State of Telangana and in N.Sunkanna vs. State of Andhra Pradesh. I am convinced to hold that the prosecution failed to prove the demand of bribe by AO from P.W1 beyond all reasonable doubt, consequently the prosecution failed to prove the guilt against the accused for the offence punishable U/Sec.7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act beyond all reasonable doubt. This point is answered accordingly.
38.In the result, the Accused Officer is found not guilty for the offence Under Section.7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act and she is acquitted Under Sec.248 (1)
Cr.PC. The case property i.e., MO5 tainted cash of Rs.2,000/- shall be confiscated to the state, the other property shall be destroyed after appeal time is over. The bail bonds of the accused shall stands continued for the period of 6 months U/Sec.437 (A) Cr.PC.
III Addl. District Judge-cum-
Special Judge for SPE & ACB Cases,
Visakhapatnam
APPENDIX OF EVIDENCE
For Prosecution:
PW1/ 03.10.2012/16.01.2013: Yammala Chanti (LW1)
PW2/16.01.2013: Yammala Mani (LW2)
PW3/07.02.2013: Ch.Siva Prasad (LW3)
PW4/25.02.2013: V.Saradha(LW5)
PW5/: M.Varalaxmi (LW6)
PW6/15.03.2013: J.M.J.Komali (LW7)
PW7(LW8)/25.03.2019: P.Rajani, (Ast.Director, FSL, Hyderabad)
PW8/16.12.2019: B.Atchutha Rao, Addl.DSP (Crimes), VSP
PW9/16.12.2019: S.Ramesh (IO), (ACP(T), Khammam)
EXHIBITS MARKED
For Prosecution:
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Ex P1/: Application of PW1 given to AO along with some documents. Ex.P2/08.06.2008: Report given by PW1 to the Dy.S.P., ACB, Vizianagaram Ex.P3/15.03.2008: Sanctioned proceedings given by AO to PW1. Ex.P4/: Signature of PW1 on 164 Cr.P.C.Statement. Ex.P5/17.01.2013: 164 Cr.P.C. of PW1 statement. Ex.P6/: Copy of FIR Ex.P7/: Pre Trap proceedings (Mediator Report-I) Ex.P8/: Made up file relating to list of Girl Child Protect Scheme Ex.P9/: Made up file relating to Enrollment Register Ex.P10/: Copy of Proceedings dt.15.03.2008 Ex.P11/: Made up file relating to application forms. Ex.P12/: Rough Sketch Ex.P13/: Post trap proceedings (Mediator Report-II) ExP14/15.03.2013: Pending pension case report of P.D. Ex.P15/: Statement showing the particulars monthly income generating authority report. Ex.P16/: Specimen Signatures of PW6 (2 sheets) Ex.P17(PW7)/25.03.2019: FSL report. Ex.P18(PW8)/16.12.2019: Original FIR For Defence: Ex D1/17.01.2013: Relevant portion marked in 164 Cr.P.C.statement of PW1 Ex D2/17.01.2013: Relevant portion marked in 164 Cr.P.C.statement of PW1 Ex D3/17.01.2013: Relevant portion marked in 164 Cr.P.C.statement of PW1 Ex D4/17.01.2013: Relevant portion marked in 164 Cr.P.C.statement of PW1 Ex D5/17.01.2013: Relevant portion marked in 164 Cr.P.C.statement of PW1 Ex D6/17.01.2013: Relevant portion marked in 164 Cr.P.C.statement of PW1 Ex D7/: Carbon copy of Tour Diary 5/08 (3 papers) Ex.X1(PW9)/07.07.2023: Copy of Explanation of AO to the show cause notice dt.12.08.2008.
MATERIAL OBJECTS MARKED
For prosecution: MO1/: Sodium Carbonate Powder Packet. MO2/ : phenolphthalein powder packet MO3/: Right hand resultant washer of AO MO4/: Left hand resultant washer of AO
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MO5/: Tainted cash of Rs.2,000/- MO6/: Resultant Solution of Inner linings of hand bag. MO7/: Hand bag of AO MO8/: Remaining Sodium Carbonate Powder
Sd/- R.V.V.S.Murali Krishna
III Addl. District Judge-cum-
Special Judge for SPE & ACB Cases,
Visakhapatnam
CALENDAR & JUDGMENT
CALENDAR CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-
IIIADDL.DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM
CC.7/2010
Between:
The State represented by the Inspector of Police, Anti Corruption Bureau, Vizianagaram Range, Vizianagaram.
.... Complainant
And:
Smt. Gorle Sakunthala Bai, W/o, Visweswara Rao, 37 years, ICDS Supervisor, Galavilli Sector, Balijipeta Mandal, ICDS Project Rural, Bobbili, Vizianagaram District.
..... Accused Officer
Date of offence:09.06.2008 Date of complaint:09.06.2008 Apprehension of Accused:09.06.2008 Date of Release on bail:12.06.2008 Date of taken on file:30.03.2010 Date of commencement of trial:03.10.2012 Date of close of trial:16.12.2019 Date of arguments:19.12.2023 Date of Sentence or Order:23.12.2023 EXPLANATION FOR DELAY AND REMARKS: Accused appeared and received copies of documents. Thereafter charges for the offence punishable Under Sec.7, 13 (2) r/w 13 (1) (d) of PC Act was framed against the Accused on 30.12.2011 Thereafter P.Ws.1 to 9 are examined and Exs.P1 to P18, Ex.D1 to D7, Ex.X1 and Mos.1 to 8 are marked and the said case is posted for arguments. The Special Public Prosecutor and the counsel for AO submitted written arguments. At last detailed oral arguments heard on both sides on 19.12.2023 and posted for judgment on 12.12.2023 and judgment is
pronounced on 23.12.2023. The delay happened due to Covid-19 pandemic and non production
of prosecution witness and the delay in the submissions of arguments by both counsels.
OFFENCE: Under Section.7, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988. FINDING: Found guilty for the offences Under Section.7, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988. SENTENCE: In the result, the Accused Officer is found not guilty for the offence Under Section.7, 13 (1)
(d) r/w 13 (2) of Prevention of Corruption Act and she is acquitted Under Sec.248 (1) Cr.PC. The case property i.e., MO5 tainted cash of Rs.2,000/- shall be confiscated to the state, the other property shall be destroyed after appeal time is over. The bail bonds of the accused shall stands continued for the period of 6 months U/Sec.437 (A) Cr.PC.
Sd/- R.V.V.S.Murali Krishna
III Addl. District Judge-cum-
Special Judge for SPE & ACB Cases,
Visakhapatnam