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G. Gnaneshwar v/s The State of A.P., rep. by Spl. Public Prosecutor for ACB, Hyderabad


    Criminal Appeal No. 492 of 2007

    Decided On, 11 June 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE K. LAKSHMAN

    For the Appellant: V. Shyamsunder Murthy, Advocate. For the Respondent: N. Ananda Rao, Standing Counsel-cum-Special Public Prosecutor for ACB Cases for the State of Telangana.



Judgment Text


1. Feeling aggrieved by the judgment, dated 25.04.2007, passed by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in Calendar Case No.26 of 2003, Accused Officer preferred the present appeal.

2. Vide the aforesaid judgment, the trial Court found the Accused Officer guilty of the charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and accordingly convicted him of the said charges. The trial Court sentenced the Accused Officer to undergo rigorous imprisonment for six (06) months and to pay a fine of Rs.500/- (Rupees five hundred only) and in default to undergo simple imprisonment for one (01) month for the charge under Section 7 of the Act. The trial Court also sentenced the Accused Officer to undergo rigorous imprisonment for one (01) year and to pay a fine of Rs.500/- (Rupees five hundred only) and in default to undergo simple imprisonment for one (01) month for the charge under Section 13 (1) (d) read with 13 (2) of the Act. The trial Court ordered to run both the sentences of imprisonment concurrently.

3. The case of the prosecution is that the Accused Officer was working as Junior Lineman in the office of APCPDCL, Distribution - XI, Chatrinaka, Hyderabad, at the relevant point of time. The Accused Officer abusing his official position as a public servant, demanded and accepted a sum of Rs.500/- as illegal gratification other than legal remuneration from PW.1 - de facto complainant for providing new electricity service connection to the house of son of PW.1 viz., PW.2 on 13.06.2002.

4. The ACB Officials filed charge sheet against the Accused Officer for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Act. The trial Court took the cognizance of the said offences against him vide C.C. No.26 of 2003. Thereafter, trial Court framed charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Act. On examination, the Accused Officer denied the said charges and prayed for trial. Accordingly the trial Court proceeded with the trial.

5. During trial, prosecution examined as many as nine (09) witnesses viz., PWs.1 to 9, marked Exs.P1 to P16 and MOs.1 to 6 were exhibited. In support of defence, none was examined by the Accused Officers.

6. After completion of the trial, on consideration of evidence both oral and documentary, the trial Court found the Accused Officer guilty of the aforesaid charges and accordingly convicted him vide impugned judgment, dated 25.04.2007 in C.C. No.26 of 2003 and imposed the punishment in the manner stated supra.

7. Feeling aggrieved by the said judgment, the Accused Officer preferred the present appeal.

8. Heard Mr. V. Shyamsunder Murthy, learned counsel for the appellant - Accused Officer and Mr. N. Ananda Rao, learned Standing Counsel - cum - Special Public Prosecutor for ACB Cases for the State of Telangana, appearing on behalf of the respondent.

9. Impugning the judgment, learned counsel for the appellant would contend that the material witnesses to prove the demand and acceptance, twin requirements are PWs.1 to 4, but they turned hostile and, therefore, the prosecution failed to prove the said twin requirements. Further, the Accused Officer was not in a position to do any official favour to PW.2 as deposed by the prosecution witness viz., PW.5, who in fact deposed that the Accused Officer had no role to pay in processing the application of PW.2 for providing new electricity service connection. PW.8 - DSP, ACB did not conduct any discreet enquiry before registering the FIR under Ex.P16 which is mandatory as per ACB Manual. He has also not considered the animosity between the Accused Officer and PW.1 and that out of such animosity, PWs.1 to 3 got laid the trap falsely against the Accused Officer. PW.7 - Sanctioning Authority has specifically deposed that he did not mention the documents which he perused while according sanction proceedings to prosecute the Accused Officer. In fact, the Accused Officer has given spontaneous explanation during post-trap proceedings conducted under Ex.P13 that he did not receive MO.3 - tainted currency notes towards bribe. But, without considering all these aspects, the trial Court recorded conviction and imposed the sentences of imprisonment which are liable to be set aside and finally prayed to allow the appeal.

10. Per contra, the learned Special Public Prosecutor would submit that ACB Manual is only a guiding in nature and it is not mandatory. Even then, PW.8 conducted discreet enquiry and he has deposed the same during his chief examination. There is no spot explanation with regard to the amount received by the Accused Officer saying that it was towards D.D. charges etc. There is circumstantial evidence though not direct evidence through which the prosecution could prove the guilt of the Accused Officer. PW.5 has specifically admitted during his cross-examination that the Accused Officer had no authority to receive any amounts from the customers other than old aged and this one circumstance alone is enough to complete the link of chain in proving the guilt of the Accused Officer. The learned Special Public Prosecutor would further submit that though PWs.1 to PWs.4 turned hostile, their evidence to the extent relevant can be relied upon by the prosecution. Further, the amount was recovered from the person of the Accused Officer on the date of trap and that the Accused Officer has not offered any satisfactory explanation as to the receipt of MO.3 tainted amount. According to him, the trial Court was right in recording the conviction and imposition of sentences of imprisonment and there is no error to interfere by this Court and, therefore, prayed to dismiss the appeal.

11. In view of the above rival contentions, the following points that arise for consideration:

i) Whether there was any official favour that was pending with the Accused Officer to do the same to PWs.1 and 2 at the relevant point of time?

ii) Whether the prosecution could prove the guilt of the Accused Officer under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988?

iii) Whether the judgment of the trial Court is sustainable factually and legally?

POINT Nos. (i) to (iii):

12. Mr. V. Shyamsunder Murthy, learned counsel appearing for the appellant would contend that there was no official favour that was pending with the appellant - Accused Officer as on the date of submission of Ex.P2, complaint or laying trap. According to him, when there was no official favour pending with the Accused Officer, the question of demanding and accepting the illegal gratification by him does not arise. In support of the said contention, he has referred to the deposition of PW.1, PW.2, PW.5 and Ex.P2 - complaint and also Ex.P13 - post-trap proceedings.

13. It is relevant to note that PW.5 - Assistant Engineer (Operations), Chatrinaka, Hyderabad, deposed about the procedure to be followed for providing new domestic service connection to a consumer. According to him, subscriber should obtain application form from the Section Office by paying an amount of Rs.25/- by way of challan, which is known as application registration fee. The challan should be obtained from E.R.O., Electricity Office and the application along with challan and ownership document have to be submitted in the Section Office of the Assistant Engineer, Chatrinaka, Hyderabad. Thereafter, the Assistant Engineer and concerned Lineman would inspect the premises for load survey, and then the Assistant Engineer would give intimation letter to the Subscriber after estimating the meter charges and wire charges etc. In the said intimation, it will be specifically mentioned that the subscriber has to pay an amount of Rs.1000/- for development charges in the shape of Demand Draft (DD) in the name of the Accounts Officer, Expenditure (Operations), South Circle, APCPDCL, and Rs.100/- towards Security Deposit to be paid by way of challan. The Lineman or Junior Lineman are not competent or expected to receive money from Subscribers to purchase Demand Drafts on their behalf for providing electricity service connection.

14. During cross-examination, he has admitted that there were no written instructions not to take money by Lineman or Junior Lineman to purchase Demand Drafts on behalf of Subscribers, and only on behalf of old age people, who cannot walk up to Electricity Office, Lineman or Junior Lineman can take money for the purpose of said demand drafts etc., by helping them in providing electricity connection to them, but not to all. The Accused Officer had no capacity to process the application for new connection to a subscriber.

15. PW.4 - Casual Labour working in the Electricity Office at Chatrinaka deposed that the Accused Officer gave him an amount of Rs.125/- in the month of June, 2002 asking him to pay the same through challan to the Electricity Department on behalf of PW.2, son of PW.1, as PW.1 was not a literate. Accordingly, he has paid the said amount of Rs.125/- through Ex.P6 and P7, challans, dated 01.06.2002. The said Exs.P6 and P7 challans were with him and the ACB Officials seized the same on 13.06.2002 i.e., trap day. Though, PW.4 was declared as hostile, nothing was elicited from him during cross-examination by the prosecution.

16. It is also relevant to note that in Ex.P13 - post-trap proceedings, the Accused Officer explained to PW.8 - Trap Laying Officer that he has paid the said amount of Rs.1600/- to Lineman, Chatrinaka for obtaining Demand Draft for the purpose of meter connection. Thus, the Accused Officer has explained, on the spot, to PW.8 that he has received the said amount from PW.1 towards payment of charges for new service connection.

17. PW.3, who is having acquaintance with PW.1 since ten years, deposed that PW.1 came to him and informed that he was in need of electricity service connection to the house of his son and enquired about any person acquainted to him in the Electricity Department to get the said work done. PW.3 called the Accused Officer, Lineman residing on the backside lane of his house, introduced to PW.1. Then, the Accused Officer informed PW.1 that it requires Rs.1125/- for getting a new electricity service connection sanctioned. In the presence of PW.3, PW.1 has paid an amount of Rs.600/- to the Accused Officer. Though he was declared hostile, nothing was elicited from him during cross-examination by the prosecution.

18. The above stated facts, more particularly, the deposition of PW.5, the Accused Officer being the Lineman was not in a position to do any official favour to PW.1. PW.5 - Assistant Engineer (Operations), Chatrinaka, Hyderabad, the person concerned, specifically deposed about the procedure and the amount required. Therefore, from the deposition of PW.5, it can safely be concluded that the Accused Officer was not having any official favour to be done to PW.1 at the relevant point of time.

19. It is also relevant to note that the trial Court gave a finding that the Accused Officer had no capacity to process the applications for new cases, but PW.1 approached the Accused Officer for new electricity service connection and, therefore, the work was pending with the Accused Officer. The said finding of the trial Court is contrary to evidence, both oral and documentary and material available on record.

20. Even as per the contents of Ex.P2 - complaint, PW.1 enquired with PW.3 about getting a new electricity service connection sanctioned to the house of his son, who in turn introduced the Accused Officer, Lineman of the Electricity Department. The Accused Officer informed PW.1 that he has to pay an amount of Rs.1600/- to get a new electricity service connection sanctioned. Accordingly, PW.1 has paid the said amount of Rs.1600/- to the Accused Officer in the presence of PW.3. Even as per Ex.P2 - complaint, after four days, PW.1 went to the Accused Officer with a request to give a receipt for the said Rs.1600/-, on which the Accused Officer again demanded an amount of Rs.900/-. The said fact was informed to PW.3, who in turn, informed PW.1 to pay an amount of Rs.100/- or Rs.200/- to the Accused Officer and get the work done. Accordingly, on 12.06.2002 at about 4.00 p.m., PW.1 along with his friend - K. Devendar (though cited as LW.3 not examined by the ACB), went to the Electricity Office, enquired with the Accused Officer about the electricity service connection. The Accused Officer demanded an amount of Rs.900/- and on request of PW.1, the Accused Officer reduced the same to Rs.500/- and requested PW.1 to pay the said amount at 4.00 p.m. at his office. Thus, the depositions of PW.1, PW.2 and PW.3 are contrary to the contents of Ex.P2. However, PW.1, during cross-examination by the Accused Officer, has admitted that the Accused Officer has informed him that an amount of Rs.1125/- would be the expenses involved for getting the new electricity service connection and he has paid an amount of Rs.600/- to the Accused Officer. On 12.06.2002, the Accused Officer has requested PW.1 to pay the balance amount of Rs.525/-.

21. As admitted by PW.5 - Assistant Engineer (Operations), there was a practice of receipt of money from subscribers by Lineman or Junior Lineman and Field Staff for providing new electricity connections. Though PW.5 admitted that there were no written instructions not to take money by Lineman or Junior Lineman to purchase demand drafts on behalf of subscribers, however, he has admitted that only on behalf of old-age people, who cannot walk up to the Electricity Office, Lineman and Junior Lineman can take money from them for the purpose of obtaining demand drafts etc., by helping them in providing new electricity connections to them, but not to all. PW.5 has also admitted that the Accused Officer had no capacity to process application for new electricity service connection to a subscriber. Thus, there was a practice of collection of money by Lineman or Junior Lineman from subscribers, who are interested to get new electricity service connections sanctioned. Knowing very well the said facts, PW.1 has paid the said amount to the Accused Officer with a request to pay challans etc.

22. Contending that the Accused Officer was in a position to do the official favour to PW.1 and in the said context only, he has demanded and accepted the bribe, the learned Special Public Prosecutor has relied upon a decision rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in B. Vittalaiah v. State of Andhra Pradesh (2015 (2) ALD (Crl.) 776), wherein it was held that to sustain a charge under Section 7 of the Act, it is not necessary for the prosecution to establish that a public servant who demanded bribe was in fact competent to do that official favour for which he demanded bribe. Suffice to establish that the public servant in abuse of his official position, demanded bribe giver to pay him bribe to get the official favour done. But, in view of the aforesaid discussion that the Accused Officer was neither in a position to do official favour, nor abused his official position, the said decision is not helpful to the prosecution.

23. Thus, the evidence on record would reveal that there was no official favour pending with the Accused Officer at the relevant point of time and since there was a practice of receipt of money from subscribers towards application registration fee etc., the Accused Officer has received the same from PW.1 and paid it through PW.4 - Casual Labourer under Exs.P6 and P7. The trial Court relied upon the principle held by the Apex Court in Chaturdas Bhagwandas Patel v. State of Gujarat (AIR 1976 SC 1497), wherein it was held that if the Accused Officer has used his official position to extract illegal gratification, the requirement of law is satisfied. In the present case, as deposed by PW.5, the Accused Officer being the Lineman was not in a position to do any official favour to PW.1 and that the Accused Officer had no capacity to process the application for new electricity service connection to a subscriber. Therefore, the finding of the trial Court that the official work was pending with the Accused Officer is contrary to record and evidence, both oral and documentary.

24. The learned counsel for the appellant - Accused Officer would further contend that the prosecution failed to establish the very demand itself, which is sine qua non to record conviction under Section 7 of the Act.

25. As discussed above, PWs.1 to 4 turned hostile. PW.1, who set the law into motion by lodging Ex.P2 - complaint, disowned the same and was declared hostile by the prosecution. PW.2, son of PW.1, was also declared hostile and his evidence is not at all useful to the prosecution to prove the demand. PW.3, who is having acquaintance with PW.1, on enquiry, introduced the Accused Officer to PW.1. PW.3 was also declared hostile. PW.4 - Casual Labour in Electricity Office, Chatrinaka, deposed about the Accused Officer giving an amount of Rs.125/- with a request to pay the same to the Electricity Department on behalf of PW.2, son of PW.1 through challans and accordingly he has paid the same under Exs.P6 and P7. His evidence is also not useful to the prosecution to prove the demand.

26. Mr. N. Ananda Rao, learned Standing Counsel - cum - Special Public Prosecutor for ACB Cases, Telangana State, would contend that though the prosecution witnesses turned hostile, their evidence to the extent which is useful can be relied upon. In support of the same, he has relied upon decisions rendered by the Hon’ble Apex Court in State of Gujarat v. Anirudh Singhh (1997) 6 SCC 514), Vinod Kumar v. State of Punjab (2015) 3 SCC 220) and S.C. Goel v. State through Central Bureau of Investigation (2016) 13 SCC 258).

27. Whereas, the learned counsel for the appellant - Accused Officer has relied on the decision rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in T. Ramesh Reddy v. State of Andhra Pradesh (2010 (1) ALD (Crl.) 342 (AP), wherein High Court of Judicature, Andhra Pradesh at Hyderabad, by relying upon the principle held by the Apex Court in Vadivivelu Thevar v. The State of Madras (AIR 1957 SC 614)discussed about the solitary witness, credibility, trustworthiness of witnesses and categorization of witnesses. Whereas, the learned Special Public Prosecutor has relied upon a decision rendered by the Hon’ble Apex Court in D. Velayutham v. State represented by Inspector of Police, Salem Town, Chennai (2015) 12 SCC 348). In the said case, it was also held that the prosecution could not adduce any evidence to show that any favour to be shown by the appellant to PW.1 was pending with the Accused Officer, such is the case; the question of demanding the amount towards bribe does not arise. It was further held that even assuming for a moment that the appellant demanded certain amount for showing favour, he would have readily accepted the same when PW.1 offered the amount in his residential portion situated in the first floor of the building. Therefore, all the said circumstances would clearly indicate that PW.1 has not come up with true versions of the case. So, placing an implicit reliance on the evidence of such a witness to base conviction is not safe. It was further held in the said case that PW.1 cannot be termed as wholly reliable witness and, therefore, it is unsafe to place implicit reliance on his evidence alone so as to convict the Accused Officer.

28. The learned counsel for the Accused Officer also relied upon a decision of Apex Court in Suraj Mal v. State (Delhi Administration) (1979) 4 SCC 725), wherein it was held that testimony of witnesses which was inseparable and indivisible was disbelieved in respect of some accused, it could not be used to convict any other. The facts of the said case are entirely different since in the said case, the Hon’ble Apex Court considered the testimony of witnesses which was inseparable and indivisible was disbelieved in respect of some accused. Thus, the conviction and imposition of sentences of imprisonment against the appellant - Accused Officer vide impugned judgment are liable to be set aside.

29. As discussed supra, PW.1, who set the law into motion, turned hostile by disowning the contents of Ex.P2 - complaint. Nothing was elicited from him during cross-examination by the prosecution to prove the alleged demand of bribe by the Accused Officer from PW.1. Therefore, heavy burden lies on the prosecution to prove the said alleged demand, more so, in view of the fact that PWs.1 to 4 were declared as hostile. To discharge the said burden, the prosecution failed to examine any independent witness to prove the alleged demand.

30. PW.6 is the accompanying witness. He has deposed that on the instructions of PW.8 - DSP, ACB, he accompanied PW.1 on the day of trap i.e., 13.06.2002, on which day, PW.1 met the Accused Officer at about 7.45 p.m. According to him, PW.1 asked the Accused Officer as to when he is going to give electricity connection and that the demanded amount was brought by him. The Accused Officer received an amount of Rs.500/- with his right hand from PW.1 and held it with his left hand.

31. It is relevant to note that during cross-examination, PW.6 categorically admitted that he has acted as mediator in another ACB Case. The details of facts which were disclosed to them by PW.1 were not incorporated in Ex.P11 - pre-trap proceedings. Ex.P11 - pre-trap proceedings and Ex.P13 - post-trap proceedings were reduced into writing after completion of the events of pre and post trap proceedings respectively. He only scribed Ex.P11 - pre-trap proceedings. His vantage position was not mentioned in Ex.P12 - rough sketch and also in Ex.P13 - post-trap proceedings. The distance between the place, where he and the Accused Officer were standing, was also not shown in Exs.P12 and P13.

32. PW.8 - DSP, ACB is not a direct witness to prove the demand of illegal gratification by the Accused Officer from PW.1. The above stated facts would show that there is no direct witness to prove the alleged demand. Thus, as discussed above, the prosecution has not examined any independent witness to prove the alleged demand. The Trial Court gave a finding that evidence of hostile witnesses need not be rejected in toto and the Court can rely on such portions of the said evidence of hostile witnesses if found true. The trial Court gave a further finding that direct evidence is one of the modes through which a fact can be proved, but that is not the only way described in the Evidence Act and, therefore, other circumstances have to be seen whether they support the case of prosecution or not.

33. It is also relevant to note that the Hon’ble Supreme Court in Bodh Raj v. State of Jammu and Kashmir (AIR 2002 SC 3164) while dealing with circumstantial evidence held as under:

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

34. In view of the above said principle, it is relevant to note that minor contradictions did not endanger to the prosecution case. Therefore, the minor contradictions can be ignored, provided that both the foundation and the super structure of the prosecution case can withstand the critical analysis of the judicial scrutiny.

35. The Hon’ble Supreme Court also held that the circumstances from which conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of guilt of the accused. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of accused and it must be such as to show that within all human probability the act must have been done by the accused.

36. In view of the above said principle, coming to the case on hand, as discussed supra, PW.1, who set the law into motion by way of lodging Ex.P2 - complaint, disowned the same and turned hostile. It is also relevant to note that Mr. Devendar, friend of PW.1, is the scribe of Ex.P2 - complaint and though he was cited as LW.3, the prosecution did not examine him for the reasons best known to it. Admittedly, PW.1 is an illiterate as per the depositions of PW.1, PW.3 and PW.4. The prosecution failed to examine any independent witness to prove the alleged demand. PW.6 deposed only about receipt of an amount of Rs.500/- by the Accused Officer from PW.1 on the date of trap. It is also relevant to note that there is no dispute with regard to receipt of Rs.500/- by the Accused Officer from PW.1 on 13.06.2002. According to the Accused Officer, he has received the said amount towards application registration fee and service charges etc., to be paid by PW.2 for the purpose of obtaining a new electricity service connection to his house and not towards bribe. PW.8 - DSP, ACB is only a Trap Laying Officer and he is not a direct witness to prove demand. Though PWs. 1 to 4 were declared hostile, nothing was elicited from them during cross-examination by the prosecution. Therefore, the prosecution failed to prove the alleged demand of bribe by examining any independent witness. As per the principle held by the Apex Court in Bodh Raj (supra), there must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistently the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In the present case, the prosecution failed to prove the said chain of evidence so complete to prove the demand of bribe which is sine qua non to record conviction under Section 7 of the Act.

37. The learned counsel for the Accused Officer would further contend that when the prosecution failed to prove the very demand so as to record conviction under Section 7 of the Act, the question of drawing presumption under Section 20 of the Act does not arise. According to him, the trial Court erroneously drawn the presumption under Section 20 of the Act in favour of the prosecution and erred in holding that the Accused Officer failed to rebut the said presumption by any convincing means.

38. The learned Special Public Prosecutor would submit that the prosecution has proved the trap, recovery of tainted currency notes and the chemical tests turning positive, and thereby proved the demand beyond reasonable doubt, like any other criminal offence. He would further submit that though there is no direct evidence, the prosecution has proved the demand by way of circumstantial evidence and he has relied upon the depositions of PW.1, PW.6 and PW.8 as well as contents of Ex.P2 - complaint. According to him, the trial Court has rightly drawn the presumption under Section 20 of the Act.

39. As already discussed above, the prosecution failed to prove the very demand itself, either by direct or circumstantial evidence and, therefore, the finding of the trial Court drawing presumption under Section 20 of the Act is unsustainable.

40. The learned counsel for the appellant - Accused Officer would further submit that the prosecution has to prove both demand and acceptance, which are twin requirements and sine qua non, to record conviction under Sections 7 and 13 of the Act and proving one alone is not sufficient to record conviction. He would further submit that the prosecution has to prove the guilt of the Accused Officer, like any other criminal case, by producing relevant witnesses, whereas, in the present case, the prosecution failed to do so.

41. As discussed above, the prosecution failed to prove the very demand itself and, therefore, the question of acceptance of illegal gratification by the Accused Officer from PW.1 on the day of trap does not at all arise.

42. Thus, the finding of the trial Court recording the conviction against the Accused Officer relying upon only circumstantial evidence is unsustainable since the there is no chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused Officer and it must be such as to show that within all human probability the act must have been done by the Accused Officer.

43. It is also a settled principle of law by the Apex Court in Suraj Mal9, where there are two views possible, the view which is beneficial to the Accused Officer, shall be given, and benefit of doubt shall always be given to the Accused Officer, more particularly, keeping in view, his fundamental right guaranteed under Article 21 of the Constitution of India. Whereas, the learned Public Prosecutor by relying upon a decision in Neera Yadav v. Central Bureau of Investigation (2017) 8 SCC 757) would contend that where there are two views are possible, the view which is beneficial to the prosecution shall be given keeping in view the nature of offence committed by the Accused Officer and the corruption became an evil in the society. In the said decision, the Hon’ble Apex Court referred that it is a harsh reality that corruption has become all-pervasive in the present system of bureaucracy. It is a fact that rich and powerful, try to stall the trial and conviction. It was further referred that a particular kind of corruption that has become more rampant of late is nepotism to promote the interests of those near and dear to them. Nepotism is in a sense a greater evil since it involves dispersal of favours by patrons amongst their arm coterie, depriving others of a career or office they deserve more. The practice of promoting the interest of few individuals to the detriment of many others is wholly reprehensible and deserves to be condemned.

44. As discussed supra, the prosecution failed to prove the very demand itself beyond reasonable doubt. Therefore, the view which is beneficial to the Accused Officer shall be given to him.

45. The learned counsel for the appellant - Accused Officer would further contend that there was animosity between the Accused Officer and PW.1 since the Accused Officer had disconnected the service connection to the house of PW.1 for non-payment of electricity service consumption charges. Therefore, PW.1 bore grudge against the Accused Officer and implicated him in the present case. He would further contend that the said fact was brought to the notice of PW.8 by the Accused Officer himself during post-trap proceedings as deposed by PW.1, PW.6 and PW.8. Even then, PW.8 and PW.9 did not investigate into the said aspect.

46. On perusal of Ex.P13 - post-trap proceedings, the Accused Officer, during post-trap proceedings, gave spot explanation to PW.8 - Trap Laying Officer that PW.1 bore grudge against him, because he had disconnected the electricity service connection to the house of PW.1 about 3 or 4 months back. PW.1, during cross-examination by the prosecution, has also categorically admitted that six months prior to the incident, the Accused Officer disconnected his (PW.1) electricity service connection in respect of his house bearing No.18-1-337/219/25 for not paying electricity bill by him and, thus, he knew the Accused Officer prior to 01.06.2002. He has applied for reconnection of electricity to his house. PW.1 further admitted during cross-examination that after such disconnection, he gave oral complaint against the Accused Officer in the said context to his Superior Officer and no written complaint was given against the Accused Officer in the said context. He has paid due amount to the Electricity Department and then the Superior Officer of the Accused Officer instructed him to give reconnection and that immediately the Accused Officer gave reconnection to another existing and running meter, but not from the disconnected meter. Therefore, on the next day, the running meter was also burnt. Again, PW.1 has complained the said aspect to the Superior Officer of the Accused Officer orally, but not in writing. Thereafter, the Electricity Officer (other than the Accused Officer) came to his house, inspected the burnt meter and issued challan to PW.1 alleging the theft of electricity/energy. PW.1 has paid challan amount and then electricity supply was restored to his house.

47. PW.2, son of PW.1, has also admitted during cross-examination by the learned Public Prosecutor, that about 5 or 6 months prior to the date of trap, electricity supply was disconnected to the house of his father in which he was also living with his father. PW.2 was informed that PW.1 quarreled with the Accused Officer in the said context and his father informed him that he would complain against the Accused Officer in writing in the said context.

48. PW.6 - one of the mediators to the trap, during cross-examination, has specifically admitted that the Accused Officer stated during Ex.P13 - post-trap proceedings, that since the Accused Officer has disconnected the electricity service connection to the house of PW.1, he bore grudge against him (Accused Officer) and the same was mentioned in Ex.P13. PW.8 - Trap Laying Officer has also admitted the said fact during cross-examination. Thus, the above stated depositions and also the contents of Ex.P13 would reveal that there was animosity and strained relations between the Accused Officer and PW.1. The said fact was also brought to the notice of PW.8 - DSP, ACB and Trap Laying Officer, during post-trap proceedings (Ex.P13). Even then, neither PW.8, nor PW.9 - Inspector-cum-Investigating Officer enquired with regard to the said aspect.

49. As regards the spot explanation, the learned Special Public Prosecutor would rely on an unreported judgment rendered by the High Court of Andhra Pradesh at Hyderabad in G. Venkata Reddy v. State, A.C.B. (Judgment, dated 18.08.2009, in Crl.A. No.1198 of 2002), wherein it was held that in post-trap proceedings, there is no spontaneous explanation given by the appellant to show that PW.1 thrust the money into the shirt pocket of the appellant, whereas, in the present case there is spontaneous explanation offered by the Accused Officer, as discussed supra. Hence, the said decision would not render any assistance to the prosecution.

50. The learned Special Public Prosecutor has also relied on another decision rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in S. Kumara Swamy v. State of Andhra Pradesh (2014 (1) ALD (Crl.) 434 (AP), wherein while dealing with the ‘thrust theory’ propounded by the Accused Officer therein, the High Court held that the Accused Officer failed to resist thrusting of tainted amount by PW.1 and throwing of the same. In the present case, as already discussed above, there is no thrust theory and, thus, the said decision would not help in any way to the prosecution.

51. The learned counsel for the appellant - Accused Officer would contend that as per ACB Manual, there are certain guidelines to ACB Officials to conduct discreet enquiries on receipt of complaints against Public Servants so as to avoid misuse of powers by ACB Officials and there is every possibility of people lodging complaints against public servants out of grudge and revenge on various aspects. He would further contend that as per the ACB Manual, the ACB Officials have to secure reliable private persons, the services of two Government Servants, out of which, one should be a Gazetted Officer. On the other hand, the learned Special Public Prosecutor would contend that as per Clause ‘6.2’ of the said Manual, where it is not possible to secure reliable private persons, services of two Government Officers may be secured and, therefore, there is no need to take the assistance of one Gazetted Officer. In view of the same, the contention of the learned counsel for the appellant cannot be accepted.

52. The learned counsel for the appellant would further submit that in the present case, PW.8 - Trap Laying Officer, on receipt of Ex.P2 - complaint at 10.30 a.m. on 13.06.2002 from PW.2, failed to conduct any discreet enquiry with regard to genuineness of allegations made in Ex.P2 - complaint. Though PW.8 deposed that after receipt of Ex.P2 - complaint at 10.30 a.m. on 13.06.2002, he had conducted discreet enquiry and then only registered a case by issuing FIR vide Ex.P16 at 3.00 p.m. on the same day itself. The prosecution failed to prove conducting discreet enquiry by PW.8 except making a bald statement. It is pertinent to note here that animosity between PW.1 and the Accused Officer was brought to the notice of PW.8 during post-trap events and the same was recorded in Ex.P13 - post-trap proceedings. It is also relevant to note that the Accused Officer has specifically explained to PW.8 on the spot which is also recorded in Ex.P13 post trap proceedings about the disconnection of electricity power supply to the house of PW.1 about 3-4 months back. Even then, PW.8 and PW.9 did not conduct any investigation on the said aspect.

53. However, Mr. N. Ananda Rao, learned Special Public Prosecutor by relying upon a decision of the Apex Court in State of Telangana v. Mangipet (2019 (17) SCC 96), would contend that the Hon’ble Apex Court has considered various decisions including the decisions in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1) and State by Karnataka Lokayutka Police Station, Benagalure v. M.R. Hiremath (2019) 7 SCC 515), it was held that registration of FIR is mandatory under Section 154 of Code of Criminal Procedure if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such situation. He would further contend that the said decisions are post-impugned judgment and, therefore, the ACB Officials have followed the procedure laid down under Law including ACB Manual, which were in vogue as on the date of trap. He would further contend that conducting discreet enquiries are not mandatory and that ACB Manual is only guiding in nature. The said contention of the learned Special Public Prosecutor is not acceptable since, in the present case, there was grouse between PW.1 and the Accused Officer. But, the trial Court without appreciating the said depositions and the contention of the Accused Officer as to the grouse, gave a finding that the Accused Officer taken the said plea of grouse in order to escape from his criminal liability, and had really PW.1 was nursing any grouse, definitely he would have supported the case of prosecution, he has supported the defence and, therefore, no weight need to be given to the said contention of the defence on account of grouse, PW.1 foisted a false complaint. The said finding of the trial Court is contrary to record and evidence, both oral and documentary. It is the consistent defence right from Ex.P13 - post trap proceedings of the Accused Officer that PW.1 was having grouse against him since he had disconnected the electricity service connection to the house of PW.1 and the same was admitted by PW.1, PW.2 and PW.6 and also PW.8. Therefore, the said finding of the trial Court is not a reasoned one as the same is contrary to record. Thus, the said finding is unsustainable.

54. The learned counsel for the appellant - Accused Officer would further contend that the ACB Officials failed to conduct fair investigation and they have not followed the procedure laid under Law while conducting trap as well as preparing Exs.P11 and P13 - pre and post-trap proceedings, respectively. PW.8 failed to conduct discreet enquiry as per ACB Manual. PW.8 and PW.9 failed to investigate into the aspect of grouse despite bringing it to their notice by the Accused Officer as admitted by PW.1, PW.2, PW.6 and PW.8. According to him, the ACB Officials have conducted the investigation as per their own whims and fancies. But, on perusal of Ex.P16 FIR, it discloses that the same was received by the trial Court at 9.00 p.m. on 13.06.2002 though it was registered at 3.00 p.m. on the same day by PW.8 and the trap proceedings were concluded by 10.45 p.m. on 13.06.2002 as admitted by PW.8. Further, as per Ex.P16 - FIR and as per deposition of PW.8, he has received Ex.P2 - complaint on 13.06.2002 at 10.30 a.m., registered a case by issuing Ex.P16-FIR at 3.00 p.m., laid the trap at 5.00 p.m. and concluded the trap proceedings at 10.45 pm. On 13.06.2002 itself, Ex.P16 - FIR was reached the trial Court at 9.00 p.m. on 13.06.2002. There is no explanation for the said delay. The prosecution failed to examine any witness for the said delay. Thus, it can safely be concluded that there were laches on the part of the ACB Officials in laying trap against the Accused Officer and conducting the investigation.

55. The learned counsel for the appellant - Accused Officer relied on a decision rendered by the High Court of Judicature of Andhra Pradesh at Hyderabad in Muralikonda v. State of A.P. (2002 (2) ALD (Crl.) 249 (AP), wherein FIR found registered only after the trap was made and the Accused entitled to benefit of doubt. But, in the present case, though as per Ex.P16 - FIR, it was received by trial Court on 13.06.2002 at 9.00 p.m. and the appellant failed to establish that the same was registered after trap. Therefore, the principle held in the said judgment is of no use for the Accused Officer.

56. He has further relied on a decision rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in V. Suresh v. State (2011 (1) ALD (Crl.) 11 (AP), wherein it was held that there cannot be any presumption that the contents of FIR are true or that they have been originally given by the complainant; similarly, there cannot be any presumption or assumption that 161 (3) of Cr.P.C. statements or investigations done by the police officers reveal truth; the judicial officers should not be under the impression that whatever stated by the police or the accused is true; if that is the case, then there is no need of establishing the Courts and conducting criminal trials and all the accused may be straightaway sent to jail through police stations; therefore, the Judges must realize the role assigned to them and they must apply their logical mind, reasoning power and judicious approach and consider the facts and circumstances of each case on the basis of settled legal principles and decide the case; they must have an inner satisfaction that their judgment is correct; for any reason, if their judgment is not satisfactory, then they must do hard work, ascertain the facts meticulously from the evidence and search for the case laws by burning oil in the midnights, if necessary, and then only prepare the judgments; and a judgment pronounced by a Judge may not affect his career, but, the same judgment will ruin some families and may cause lot of miseries and heart breaking to who feel that injustice has been done to them; even the party who had lost the case should have an inner feeling that the judgment is perfectly justified. It was further held in the said decision that defective investigation need not necessarily result in the acquittal; and the appreciation of evidence must be based on legal evidence; though technicalities should not defeat the justice, but at the same time, noncompliance of mandatory provisions in appreciation of evidence and relying on inadmissible portions of evidence cannot be permitted. In the present case also, as discussed supra, the trial Court failed to appreciate the evidence properly and judiciously.

57. The learned counsel for the appellant - Accused Officer would also contend that Ex.P15, prosecution sanction proceedings were issued by the Sanctioning Authority without following the due procedure, without considering the entire material available on record and without application of mind. In support of his contention, he would refer to the deposition of PW.7, who deposed that he has received the final report together with copies of FIR, mediator Reports - 1 and II from the DG, ACB, Hyderabad, and he was requested to accord prosecution sanction orders against the Accused Officer. He has further deposed that he has gone through the said final report and other copies and satisfied himself that there was a prima facie case against the Accused Officer and accordingly accorded sanction proceedings to prosecute the Accused Officer by issuing Ex.P15 proceedings. During cross-examination, he has admitted that no draft sanction proceedings were forwarded to him by the DG, ACB and he did not describe the details of material perused by him in Ex.P15. By referring to the said deposition of PW.7 and also the contents of Ex.P15, the learned counsel for the appellant would contend that the relevant material was not placed before PW.7 and he has not verified the said documents. He would further contend that PW.7 Sanctioning Authority without application of mind, mechanically issued Ex.P15 sanction proceedings without coming to a conclusion that there was prima facie material to prosecute the Accused Officer.

58. The learned counsel for the appellant has relied upon a decision in C.B.I. v. Ashok Kumar Aggarwal (2014 Crl.L.J. 930) in support of his contention. In the said decision, it was held by the Hon’ble Apex Court that 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 withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a 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. It was further held that it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. Thus, where there is no reason in the order passed by the Authority/Court, a presumption can be drawn that the said order was passed without application of mind as per the principle held by the Hon’ble Apex Court.

59. On perusal of Ex.P15, sanction proceedings, would show that relevant material papers were not placed before the Sanctioning Authority. There is no reference about post-trap proceedings, animosity between PW.1 and the Accused Officer and the spot explanation given by the Accused Officer. There is no reason given by PW.7 - Sanctioning Authority in Ex.P15 - sanction proceedings that he having perused the material, came to a conclusion that there is prima facie evidence to prosecute the Accused Officer. In Ex.P15, no documents were referred to and no reasons were given by the Sanctioning Authority in support of his conclusion that he has satisfied himself that there was prima facie case against the Accused Officer to prosecute him. As held by the Hon’ble Apex Court in the judgment cited supra, it is the duty cast upon the Sanctioning Authority to go through the entire material, examine the same and come to a conclusion with regard to prima facie evidence to prosecute any Accused Officer. The Sanctioning Authority has to give specific reasons for the same and sanction proceedings should reflect the same. In the present case, the same are lacking. Therefore, Ex.P15 sanction proceedings are without consideration of any material and without proper reasons.

60. However, the learned Public Prosecutor would contend that there is no need of mentioning all the documents while issuing the prosecution sanction orders by the Sanctioning Authority with regard to prima facie case and the satisfaction he arrived at to prosecute the Accused Officer, and mentioning the same in the Sanction proceedings is sufficient. But, the said contention of the learned Special Public Prosecutor is not acceptable for the reasons stated above and also in view of the principle held by the Apex Court in the decisions supra. In view of the above discussion and the decisions, presumption can be drawn that the Sanctioning Authority has issued Ex.P15 sanction proceedings without application of mind.

61. It is also relevant to note that the Accused Officer has taken the defence that he has received the said amount of Rs.500/- from PW.1 towards application registration fee and service charges to be paid by PW.1 for providing new electricity service connection to the house of his son. The Accused Officer has explained the same to PW.8 - Trap Laying Officer during post-trap proceedings and there is spot explanation to that effect. The said fact was also admitted by PW.1, PW.6 and PW.8. Thus, the defence of the Accused Officer is consistent, convincing, reliable and trustworthy. However, the learned Special Public Prosecutor would contend that the said defence taken by the Accused Officer is an after thought to get over from the present case and the same is unworthy of acceptance.

62. On the other hand, the learned counsel for the appellant would contend that even as per the deposition of PW.5, the Accused Officer had no capacity to process the application for new electricity service connection to a subscriber. He has also admitted that in certain cases, Lineman can take money for the purpose of obtaining Demand Drafts etc. PW.4 - Casual Labour in Electricity Department has also admitted that the Accused Officer gave him money to pay challan to provide new electricity service connection to PW.2’s house who is son of PW.1 and accordingly, PW.4 has paid the same under Exs.P6 and P7. Thus, the defence taken by the Accused Officer that he has received the said amount of Rs.500/- from PW.1 towards charges for providing new electricity service connection and that he has paid the same through PW.4 is consistent and convincing. The prosecution failed to disprove the same during cross-examination of prosecution witnesses. On the other hand, PW.5 has admitted during cross-examination that there were no written instructions not to take money by Lineman or Junior Lineman to purchase Demand Drafts on behalf of subscribers. Thus, the contention of learned Special Public Prosecutor that the defence of the Accused Officer is an after thought is rejected in toto.

63. The finding of the trial Court that as seen fro

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m Ex.P13 - post-trap proceedings, no such spontaneous explanation was given by the Accused Officer during post-trap proceedings. The version of the Accused Officer in the said post-trap proceedings cannot be a base to find the Accused Officer guilty of the charges, but, certainly, it can be looked into for comparison whether the defence developed during trial is consistent with his earlier version or not and not on perusal of the said aspect, with the said observations, the trial Court further held that it has satisfied to hold that the Accused Officer developed the defence during trial to see that he is somehow acquitted from this case and that he did not give any such explanation during post-trap proceedings. As discussed supra, in Ex.P13 - post-trap proceedings, it is specifically mentioned that the Accused Officer gave spot explanation to PW.8 - DSP, ACB that he has received an amount of Rs.500/- from PW.1, in addition to Rs.1600/- for fixing the meter. PW.1 is having grudge over the Accused Officer and that the Accused Officer has handed over the said amount of Rs.1600/- to Lineman of Chatrinaka for obtaining Demand Drafts for the purpose of meter connection. Therefore, the said finding of the trial Court is contrary to the evidence, both oral and documentary, more particularly Ex.P13 - post-trap proceedings, and, as such, the said finding is not sustainable. 64. The further finding of the trial Court that if the money is recovered, no convincing, credible and acceptable explanation is offered by the Accused Officer as to how it came to be received by him, presumption under Section 20 of the Act is available, is contrary to record, more particularly Ex.P13 - post-trap proceedings, depositions of PW.1, PW.2, PW.6 and PW.8 and, therefore, the said finding is not sustainable. 65. The further finding of the trial Court that it is not a rule that along with the complainant, another independent witness should accompany him, sometimes presence of several persons or even one stranger along with complainant may create suspicion in the mind of Accused Officer to behave differently and, therefore, even assuming that PW.6 did not accompany PW.1 nearer to the Accused Officer, it is of no consequence, is contrary to the record and depositions of prosecution witnesses. The trial Court failed to see that PW.1 to PW.4 turned hostile and PW.1 disowned contents of Ex.P2 - complaint and, therefore, burden lies on the prosecution to prove the demand by examining any independent witness. Therefore, in the present case, the prosecution failed to examine any independent witness to prove the demand and PW.6 evidence is of no use to the prosecution case to prove the demand. Thus, the said finding of the trial Court is not sustainable. 66. The findings of the trial Court on crucial aspects of pendency of official favour with the Accused Officer, demand and acceptance, animosity between the Accused Officer and PW.1, sanction proceedings and the defence taken by the Accused Officer are contrary to the record and evidence, both oral and documentary, for the reasons discussed supra in detail. 67. At the cost of repetition, as discussed supra, the prosecution failed to prove the demand itself by way of circumstantial evidence since there is no direct evidence and, therefore, recording of conviction under Section 7 of the Act by the trial Court by drawing presumption under Section 20 of the Act is not sustainable. 68. The contents of Ex.P2, depositions of PW.1, PW.2, PW.3, PW.4, PW.6 and PW.8 are contradictory to each other. There are interpolations in Ex.P2 - complaint. Admittedly, Mr. Devender, scribe of Ex.P2 - complaint though cited as LW.3 was not examined by the prosecution. It is also not in dispute that PW.1 is an illiterate. Therefore, non-examination of the said Devender, friend of PW.1, is fatal to the case of prosecution. It is also relevant to note that there are contradictions with regard to payment of money, dates and time of PW.1 approaching the Accused Officer, which were not considered by the trial Court. As held by the Hon’ble Apex Court mere recovery of tainted notes is not sufficient to record conviction and the prosecution has to prove both, demand and acceptance, the twin requirements, to record conviction for the offences under the Act. 69. Mr. N. Ananda Rao, learned Special Public Prosecutor, has submitted his arguments in detail with supporting authoritative judgments including ACB Manual, on various aspects, such as conducting discreet enquiries, sanction proceedings, categorization, reliability and trustworthiness of witnesses, pendency of official favour, conducting of trap proceedings, presumption and hostility of prosecution witnesses and also the defence taken by the accused. Therefore, this Court place on record its appreciation for the assistance rendered by him. 70. In the said circumstances and foregoing discussion, it can be inferred that the prosecution has miserably failed to prove its case beyond reasonable doubt and, therefore, the finding of the trial Court recording conviction is unsustainable. 71. In the result, the present Criminal Appeal is allowed and the conviction and sentence recorded by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad in Calendar Case No.26 of 2003 vide judgment dated 25.04.2007 against the appellant - Accused Officer for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988, are set aside. The Accused Officer is on bail. His bail bonds shall stand cancelled. The fine amount, if any, paid is ordered to be returned to the Accused Officer. As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.
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