K.Chandrashekar Rao Another vs State Of A.P.

This appeal is preferred by the appellants aggrieved by the judgment passed by the I Addl. Special Judge for SPE & ACB cases, City Civil Court, Hyderabad in C.C. No.35 of 2009 dated 23-7-2013 wherein the Appellant No.1 – Accused Officer No.1 was convicted under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act 1988 (for short ‘PC Act’) and sentenced to undergo simple imprisonment for a period of one year and fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months for the offence under Section 7 of the PC Act and to undergo simple imprisonment for a period of one year and fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for a period of two months for the offence under Section 13(1)(d) read with 13(2) of PC Act 1988 and directed both the sentences to run concurrently and the Appellant No.2 – Accused Officer No.2 was convicted for the offence under Section 12 of the PC Act and sentenced to undergo simple imprisonment for a period of one year and fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months.

The prosecution case in brief was that Accused Officer No.1 (AO1) was working as an Accountant in the Office of the Zonal Commissioner, GHMC, Serilingampally and AO2 was working as a Junior Assistant in Outsourcing Pool in the same office. The father of the complainant was allotted the work of providing modern lighting system with tubular poles at white fields, Lotus Apartments at Serilingampally Circle. On 15-10-2008 an agreement was executed between the Executive Engineer, Electrical Division, West Zone, GHMC and the father of the complainant wherein the amount of estimate was shown as Rs.4,60,000/-and the amount of contract was shown as Rs. 4,15,000/-. The complainant was looking after the official work on behalf of his father. As per the agreement, the work was executed and completed by the complainant and quality control inspection report was issued by Executive Engineer, Quality Control (Electrical), GHMC. After statutory deductions, the complainant was entitled to receive Rs.3,75,000/- approximately from GHMC, West Zone, Serilingampally. When the complainant contacted AO1 on 01-11-2008 for cheque details, he did not respond properly. The complainant understood that AO1 was expecting bribe and contacted a TV9 reporter, who helped him in arranging a sting operation. The TV9 reporter provided the complainant with a spy camera attached to his shirt button. With that on 03-11-2008, the complainant contacted AO1 at his office. AO1 demanded bribe of Rs.6,000/- or 1.5% of the cheque amount to complete all formalities and for getting the signatures of the concerned officers on cheque and issuing the same to the complainant. On the request of the complainant, AO1 reduced the bribe amount from Rs.6,000/- to 4,000/-. The complainant recorded the conversation that took place between him and AO.1. He approached the DSP, ACB, City Range-1, Hyderabad on 4-11-2008 at 3:00 PM and lodged a complaint and enclosed the CD to the complaint. The DSP after verification, registered a case vide Cr.No.30/ACB/CR.1/2008 under Section 7 of PC Act on 6-11-2008. He secured the services of two official witnesses to act as mediators and laid a trap on 6-11-2008 after observing all legal formalities. On 6-11-2008, the complainant approached AO1 to collect the cheque. AO1 enquired whether he brought the demanded bribe amount. On his affirmative reply, AO1 called AO2 and asked him to give the cheque after receiving the bribe amount from him. Accordingly, AO.2 took the complainant to his seat. The complainant gave the bribe amount of Rs. 4000 to AO2. AO2 took the bribe amount with his right hand, counted with both hands and kept the same in his right side back pocket of his wearing pant. AO2 obtained signature of the complainant in the cheque issue register and gave the cheque for Rs. 3,74,091/-. After receiving the cheque, the complainant gave a pre-arranged signal to the trap party. The trap party along with the mediators rushed into the room. When they tested AO1 by treating his fingers in sodium carbonate solution, the test yielded negative. When the attention of AO1 was drawn to the video recording, AO1 stated that he directed AO2 to receive the bribe amount and to give the cheque to the complainant. The tainted bribe amount was recovered from the possession of AO2. The chemical test conducted on his both hand fingers yielded positive. The inner portion of the wearing pant pocket of AO2 when subjected to sodium carbonate test, the same also yielded positive result. AO1 and AO2 were arrested and produced before the Special Court on 7-11-2008. They were enlarged on bail on 14-12-2008. The statement of the complainant was got recorded by the II MM, Secunderabad under Section 164 CrPC on 29-11-2008. Further investigation was conducted by the Inspector of Police, ACB, CR-1, Hyderabad. He recorded the statements of the witnesses and collected the relevant documents. After obtaining sanction from the Government to prosecute AO1, the Inspector of Police, Hyderabad Range filed charge sheet against AO1 and AO2. AO2 was removed from service being an outsourcing employee.

The case was taken on file by the I Addl. Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad under Sections 7 and 13(1)(d) read with 13(2) of PC Act against AO1 and under Section 12 of PC Act against AO2. On appearance of AO1 and AO2 before the Court, copies of charge sheet and all the annexures thereto were furnished to them in compliance with Section 207 CrPC. As AO1 and AO2 pleaded not guilty, charges were framed against them.

The prosecution got examined PWs.1 to 7 and got marked Exs. P1 to P16 and MOs.1 to 10. AO1 got examined DW1 on his behalf and got marked Ex.X1 through him.

On considering the evidence on record and on hearing the learned Special PP and the learned defence counsel for AO1 and AO2, the Special Judge found them guilty and convicted them for the offences under Sections 7 and 13(1)(d) read with 13(2) of PC Act against AO1 and under Section 12 of PC Act against AO2 and sentenced them as stated above.

Aggrieved by the said conviction and sentence passed against them, AO1 and AO2 preferred this appeal contending that the trial court failed to see that there was no corroboration for the evidence of the complainant with regard to his alleged visit to the office and the demand made by AO1 on 3-11-2008 and on 5-11-2008. The trial court failed to see that since AO1 refused to overlook the statutory deductions of Rs.41,618/-from the amount of Rs. 4,15,729/-, a verbal altercation took place between the complainant and AO1 on 1-11-2008 and due to the said grudge, the complainant implicated AO1 in this false case. The prosecution failed to prove the demand on 3-11-2008 and 5-11-2008, as none of the staff members stated about the complainant meeting AO1 on the said dates. The court ought to have seen that PW5, the Zonal Commissioner, West Zone, Serilingampally, who was the leave sanctioning authority stated that AO1 applied for half day CL on the forenoon of 5-11-2008, hence the claim of PW1 that he met AO1 on 5-11-2008 at about 11:00 AM was improbable. The court erred in relying upon the evidence of DSP, ACB who stated that he did not seize the CL application of AO1 ignoring the fact that it was forming part of the record. The court failed to believe the evidence of DW1, who deposed about AO1 coming to his house on 5-11-2008 to attend the 10th day ceremony of his mother and stayed from 8:00 AM to 1:30 PM which would establish the false evidence of PW1. The court erred in treating the post trap mediators report as substantive evidence. The court erred in considering the evidence of PW8 as hostile, without treating him as such by the prosecution. The court erred in not considering that there was no demand made by AO2 and when he refused to receive the amount, PW1 suddenly thrusted the cash into the back side pant pocket of AO2 and meanwhile the ACB officers entered into the office and closed the doors of the office. The Court failed to consider that the ACB officers deliberately involved AO2 in the case as he refused to state that on the instructions of AO1, he took the tainted amount from PW1. The reasons stated by the Court were untenable and unsustainable and prayed to allow the appeal by setting aside the judgment of conviction and sentence passed by the trial court.

Heard the learned counsel for the appellants and the learned Special Public Prosecutor for ACB.

The learned counsel for the appellants submitted that the father of PW1 got the agreement with the department. No authorization was given by the father of PW1 to his son. PW1 was not the agent of the original contractor. There was no presumption in law that son would automatically become the agent of father. No amount was recovered from the possession of AO1 and the test failed on him. AO1 had never demanded and accepted bribe. As per Ex P7, he received the file on 3-11-2008. Therefore the statement of PW1 that he met him on 1-11-2008 was false. The statement  of PW1 that he met AO1 on 5-11-2008 was false, as AO1 was on leave on that day as per Ex P11. The trial judge ignored the said aspect.

8.1 By the time PW1 gave the compliant, the cheque was ready for issuance. The Zonal Commissioner and Examiner of Accounts signed on the cheque on 5-11-2008. PW1 stated in his cross examination that he met AO1 at 12:25 PM on 6-11-2008 but as per the testimonies of PWs.4 & 8, AO1 was in a meeting at that time. PW4 had stated that there was no role of AO1 in withholding the cheque. PW5 stated about AO1 being on leave on 5-11-2008. PWs.4, 5 & 8 were not even cross examined by the PP. PW8 was merely re-examined. The evidence of PW9 was totally ignored by the trial judge. The evidence of PW10 with regard to Ex P2 was contradictory to the evidence of PW6. While PW10 stated that Ex P2 was handed over by PW6, PW6 stated that the ACB authorities took the spy camera and transferred the data.

8.2 PW1 had not stated about conducting any sting operation in his compliant. There was no mention of Ex P2 CD in Ex P6 FIR. The spy camera was not produced before the court and Ex P2 CD was not proved in accordance with law and relied upon the judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1 as to proof of primary and secondary evidence qua electronic records/documents.

8.3 With regard to AO2, he contended that AO2 never demanded and accepted any amount. On 6-11-2008, PW1 after receiving the cheque, forcefully thrusted the amount in the back side pant pocket of AO2 as per the evidence of PW8, no role of AO2 was stated prior to 6-11-2008.

8.4 The learned counsel for the appellants relied upon several judgments on the aspect that proof of demand of bribe is sine qua non for establishing the offences under Sections 7 & 13 of PC Act and in the absence of proof of demand he contended, that the accused were entitled for acquittal.

The learned Special Public Prosecutor for ACB, on the other hand, supported the judgment of the trial court. He contended that the evidence of PW1 was trustworthy with regard to the demand made by AO1. AO1 instructed AO2, who was his assistant to handover the cheque only after receiving the bribe amount. The tainted amount was recovered from the possession of AO2. The official favor of handing over the cheque was pending with AO1 and AO1 had instructed AO2 not to handover the cheque until the amount demanded by him was received. After appreciating the evidence on record only, the trial court convicted the accused. No interference was required and prayed to dismiss the appeal.

On hearing both the learned counsel, the points that arise for consideration in this appeal are:-

(i) Whether the prosecution was able to bring home the guilt of AO1 beyond reasonable doubt for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of PC Act, 1988?

(ii) Whether the prosecution successfully proved the guilt of AO2 beyond reasonable doubt for the offence punishable under Section 12 of PC Act, 1988?

(iii) Whether the conviction and sentence passed by the trial court against AOs.1 and AO2 is sustainable?

POINTS No.(i) and (ii): As the charges and evidence led by the witnesses against AO1 and AO2 are inseparable, these points are considered together. The charges framed against AOs.1 and 2 are as follows:

That you (AO1) Sri Kollipaka Chandrashekar Rao being a public servant employed as Accountant in the office of the Zonal commissioner, GHMC, Serilingampally, on 6-11-2008 as per your earlier demands, you (AO1) have demanded and accepted bribe amount of Rs. 4000/- from the complainant Sri Ayya Rajasekhar through (AO 2) as a motive or reward for yourself as gratification other than legal remuneration, to do an official act of issuing a cheque for Rs. 3,74,091/- to Sri Ayya Rajashekar and thereby you (AO1) have committed an offence punishable u/S 7 of PC Act, 1988 and within my cognizance.

That, Accused officer of you (AO1) during the same time and place of aforesaid first charge, being a public servant employed as Accountant in the office of the Zonal commissioner, GHMC, Serilingampally, on 6-11-2008 by corrupt and illegal means or otherwise abusing your position as a public servant, obtained illegal gratification and pecuniary advantage for yourself to an extent of Rs. 4000/- from Sri Ayya Rajashekar through AO2 for doing an official favor of issuing a cheque of Rs. 3,74,091/- to Sri Ayya Rajashekar and thereby you (AO1) have committed an offence punishable u/S 13(2) of PC Act, 1988 and within my cognizance.

In order to bring home a charge under Section 7, the prosecution has to prove that the accused officer accepted illegal gratification, which was not the remuneration for which he was legally entitled to and that he has accepted the same as motive for doing an official act.

In so far as the offence u/S 13(1)(d) r/w 13(2) of the Act is concerned, the prosecution has to prove that the accused officer by corrupt or illegal means obtained for himself a valuable thing or pecuniary advantage and that he has committed criminal misconduct being a public servant. Section 12 of the Act is pertaining to abetment of the offence punishable under Section 7 or 11 whether or not that offence is committed in consequence of that abetment.

In the case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of AP and another (2015) 10 SCC 152, the Hon’ble Apex Court has summarized the well-settled law on the subject as follows:

“23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction there under.”

It is considered necessary to appreciate the evidence of the complainant (PW1) on this aspect. PW1 stated that he met AO1 four times with regard to the pending bill of his father in the audit section of GHMC, Serilingampally. On 1-11-2008, he met AO1 in respect of the bill and as AO1 had not given any reply, he suspected that AO1 was expecting bribe and approached TV9 reporter on 3-11-2008. On 3-11-2008, the TV9 reporter Pandarinath (PW6) provided a spy button camera to him. On the same day at 11:00 AM, he met AO1 and requested him for issuance of the cheque. AO1 demanded bribe of Rs. 6000 for delivery of cheque. On his request, AO1 reduced the bribe amount to Rs. 4000. He recorded the conversation between him and AO1 with spy button camera. On the same day, Pandarinath gave the CD to him by converting the conversation recorded through spy button camera. On 4-11-2008, he approached the ACB authorities, Hyderabad and lodged the report. He also handed over the CD. The DSP instructed him to contact AO1 again on the next day i.e 5-11-2008. He accordingly met AO1 at his office at 11:00 AM. AO1 informed him that the cheque would be released in the evening and instructed him to come on 6-11-2008 along with the bribe amount for taking delivery of the cheque. On 6-11-2008, at about 12:35 PM, he alone entered into the office and met AO1. AO1 enquired with him whether he brought the bribe amount. When he affirmed in positive, AO1 instructed AO2 to collect the bribe amount from him and to handover the cheque and to obtain his signature in the register. AO1 instructed him to pay the amount to AO2. AO2 was in front of AO1 at that time.

Thus PW1 had not stated about any demand made by AO1 on 1-11-2008. He only stated that he suspected AO1 and then approached the TV9 reporter. He stated about the demand made by AO1 on 3-11-2008, when he met him at his office at 11:00 AM. He stated that AO1 demanded bribe of Rs. 6000 for delivery of cheque and on his request reduced the bribe amount to Rs. 4000. The prosecution got examined PW6, the TV9 reporter in corroboration to the evidence of PW1 with regard to the demand made by AO1 on 3-11-2008.

PW6 stated that PW1 met him at about 11:00 AM on 3-11-2008 at TV9 office and complained that AO1 was demanding payment of bribe to a tune of Rs. 5000 for clearing his bills regarding the contract works done by him for the Municipality. He provided PW1 with equipment for recording the sting operation. He equipped PW1 with a spy camera attached to his shirt button and trained him in recording the proposed sting operation. He sent PW1 to the office of AO at about 2:30 PM on the same day and asked him to be in contact through his phone. In between 3:00 PM to 5:00 PM, PW1 informed him over phone that he recorded the sting operation through the spy camera but was not aware whether the recording was properly made or not. He asked him to bring the same to his office. He got played the same through the monitor and found it correctly recorded.

Thus the evidence of PW6 corroborated with the evidence of PW1with regard to the demand made by AO1 on 3-11-2008 and that the same was also recorded by an electronic equipment which was transformed into a CD and marked as Ex. P2.

The CD would be a perfect corroborative piece of evidence to the evidence of PW1 to prove the demand of AO1 made on 3-11-2008, if it is properly proved. The spy camera used for recording the conversation between PW1 and AO1 was not produced before the court. The spy camera is the primary evidence to prove the electronic record marked as Ex P2. In the absence of primary evidence, the prosecution ought to have filed a certificate issued under Section 65-B(4) of Evidence Act 1872, to prove it as secondary evidence.

The Hon’ble Apex Court in Arjun Panditrao Khotkar’s case (1 supra) held that:

“The certificate required under S.65-B(4) is a condition precedent to the admissibility of secondary evidence by way of electronic record i.e. as laid down in Anvar P.V. case, and incorrectly "clarified" in Shafhi Mohammad case Further, oral evidence in the place of such certificate cannot suffice, as S. 65-B(4) is a mandatory requirement of the law and clearly states that secondary evidence is admissible only if it is led in the manner stated and not otherwise. Further, S. 65-B differentiates between the original information contained in the "computer" itself and copies made there from, the former being primary evidence, and the latter being secondary evidence.

The required certificate under S. 65-B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. However, where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with S. 65-B(1), together with the requisite certificate under S. 65-B(4).”

The learned Special Public Prosecutor contended that as PW6 stepped into the witness box and gave evidence, it was not necessary to produce certificate u/S 65-B(4) of Evidence Act, as per the above judgment. But this court does not approve the contention of the learned Special Public Prosecutor. Only when the spy camera is produced before the Court and PW6 speaks about it that the recording was reduced into CD, the same can be considered as primary evidence. In the absence of production of the spy camera, the CD would only amount to secondary evidence and to consider it as admissible, the certificate u/S 65-B(4) is mandatory. In the absence of the said certificate and in the absence of producing the primary evidence i.e. the spy camera, the oral evidence of PW6 would not make the CD as primary evidence. As such the CD cannot be considered as proved in accordance with law. The CD cannot be considered as an admissible and relevant piece of evidence. However, the oral evidence of PW6 corroborated with the evidence of PW.1 with regard to the demand made by AO1 on 03.11.2008.

With regard to the demand made by AO1 on 5-11-2008, the AO1 had taken the defence of plea of alibi. The learned counsel for the appellant contended that AO1 was not present in the office on the forenoon of 5-11-2008 and he attended the 10th day ceremony of the mother of his distant relative at the Ordinance Factory quarters at Eddumailaram, Medak District. The defence got examined the relative of AO1 as DW1. DW1 stated that AO1 attended the 10th day ceremony of his mother on 5-11-2008 and stayed in his quarters from 8:00 AM to 1:30 PM and he distributed Bhagwat Gita Books to all those who attended the ceremony in memory of his late mother. A book of Bhagwat Gita was marked as Ex.X1 through this witness.

The Zonal Commissioner, West Zone, GHMC, Serilingampally at the relevant point of time was examined as PW5. In his cross examination he admitted that he was the leave sanctioning authority for AO1 and AO1 applied for half day CL on the forenoon of 5-11-2008 for attending personal work and Ex. P11 was the attendance register containing a copy of leave application of AO1 on 5-11-2008 bearing his initial.

PW10, the DSP, ACB at the relevant time, who seized the attendance register marked as Ex. P11 stated that he had not seized the photostat copy of the leave application dated 4-11-2008 of AO1. The trial court observing that it was a serious issue as to how a document which was not seized appeared in the record but it was too long to make any probe into the said aspect and as per the entries in Ex. P11, AO1 appeared to have signed for his full attendance on that day and PW5 was unable to say whether he sanctioned the leave to AO1 or not, disbelieved the evidence of DW1 and PW5 and the defence plea of alibi taken by AO1. The defence had not called for the original leave application of AO1 from the office to prove that it was sanctioned. Hence this court also does not find any illegality in the observation of the trial court in disbelieving the plea of alibi taken by AO1 on 5-11-2008.

With regard to the demand made by AO1 on 6-11-2008, the learned counsel for the appellant contended that AO1 was not present in his seat at the time when the complainant came to the office. A meeting was held in the chambers of PW3 the Financial Advisor of the office of the Zonal Commissioner, West Zone, GHMC, Serilingampally and only after AO2 was trapped, AO1 came out from the chambers of PW3.

PW3 stated in his cross examination, that on the date of the trap, a meeting was held in his chambers. After he along with LW5, Bhasker came out after the completion of meeting, they were informed that AO2 was trapped. He did not state anything about the presence of AO1 in the meeting along with them.

The Zonal Manager by name Bhasker examined as PW4 stated in his evidence that after completion of meeting, he and PW3 came out and they were informed by the ACB officials that AO2 was trapped. In his cross examination, he stated about AO1 participating in the meeting and further stated that after informing them that AO2 was trapped, the ACB officials took away AO1 along with them.

The evidence of PW4 seems to be an improvement over the evidence of PW3. The defence tried to improve their defence gradually from one witness to the other to elicit something in their favor which was not spoken by the previous witness.

The computer operator who prepared the cheque was examined as PW8. He stated that he attended the office on 3-11-2008. He did not observe PW1 meeting AO1 on that day. On 1-11-2008, he saw PW1 talking with AO1. In his cross examination he developed a full-fledged story stating that there was a verbal altercation between PW1 and AO1 on 1-11-2008 as AO1 informed PW1 that he would get an amount of Rs.3,75,000/- only after statutory deductions made from the total amount payable to him. PW1 made a request to AO1 to help him in getting a higher amount by over looking the statutory deductions and AO1 refused to help PW1. On the date of trap, at about 11:40 AM, he observed PW1 coming to meet AO1, but was told by some office staff that AO1 was attending a meeting in the room of PW3. PW1 approached AO2 and AO2 handed over cheque to PW1. AO2 obtained the signature of PW1 in the cheque issue register. PW1 offered some amount to AO2 and AO2 refused to receive the same. PW1 thrusted the cash into the back side pant pocket of AO2, meanwhile the ACB officials entered into the office.

This story of AO1 not being present in his seat at the time of trap on 6-11-2008 and the cash being thrusted into the back side pant pocket of AO2 was not taken by AO’s 1 and 2 at the earliest opportunity nor was stated by any of the witnesses in the post trap proceedings recorded by PW10. The post trap proceedings are contemporaneous record of the happenings taken at the time of trap. If AO’s 1 and 2 had stated as such at that time, it would have made their defence somewhat reliable. No such defence being taken in the post trap proceedings and the gradual improvement in the defence elicited from the cross examination of the prosecution witnesses, who were the colleagues of AO1, makes it suspicious.

The learned Special Public Prosecutor relied upon a judgment of the Hon’ble Apex Court in Billa Nagul Sharief v. State of Andhra Pradesh (2010) 11 SCC 575 wherein a similar defence was taken by the appellants, the Hon’ble Apex Court observed that:

“20. Mr. Ranga Ramanujam has referred to the evidence of the defence witnesses and contended that from their evidence it is evident that the appellant was falsely implicated as the de facto complainant had quarrelled with the appellant a few days earlier to the date of occurrence. He also points out that the defence witnesses have also deposed that on 6th of January, 1997 when the appellant demanded the bribe money and on 8th of January, 1997 when the trap was laid and the bribe paid, the appellant was assigned the duty of presenting bills in the treasury and, therefore, his presence on both the dates is doubtful. He also refers to the evidence of the defence witnesses wherein it has been stated that the money was thrust in the pocket of the appellant. All these facts, according to Mr. Ranga Ramanujam lead to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt.

We have considered all these submissions and they do not commend us. Defence witnesses have clearly stated that the time which one may spend for presenting the bills could be maximum three and a half hours. They have not stated in their deposition that the appellant or for that matter anybody presenting the bills have to remain in the treasury continuously for three and a half hours. In the face of the evidence of the prosecution witnesses that the appellant demanded bribe on 6.1.1997 and received the same on 8.1.1997 cannot be doubted on the ground that for few hours the appellant was assigned the duty of presenting the bills in the treasury. The alleged quarrel between the appellant and the de facto-complainant on 30.12.1996 is also of no consequence in view of the specific and consistent evidence about the demand and payment of bribe unfolded by the prosecution witnesses. The plea put forth by the appellant that the money was thrust on his pocket is not fit to be believed in the face of the categorical and consistent evidence of the prosecution witnesses.”

The above observations of the Hon’ble Apex Court answers the defence taken by AO1 with regard to the altercation between the complainant and AO1 on 01.11.2008 which was subsequently extracted from the evidence of PW.8 as well as the plea of alibi taken by AO1 on 05.11.2008 and the thrusting theory taken by AO2.

The mediator was examined as PW2. He is also a government employee whose evidence corroborates with the evidence of PW1. He stated that he along with the other mediator questioned PW1 about the correctness of the contents of the compliant and that PW1 produced an amount of Rs. 4000 consisting of two notes of 1000 rupee denomination and four notes of 500 rupee denomination, noted the numbers of the said currency notes. He stated about the pre trap proceedings and post trap proceedings. The same currency notes with the same numbers were recovered from the possession of AO2. Both the hand fingers of AO2 and the right side back pocket of the pant of AO2 also tested positive to the sodium carbonate test conducted before them. The evidence of PW2 proves the presence of AO1 in his seat at that time. His evidence would also disclose that the test proved negative when conducted on the hands of AO1. The connection between AO’s 1 and 2 was proved by prosecution through this witness. He stated about the DSP questioning AO1 about the recording of incriminating evidence by TV9 network people and that the version given by AO1 was recorded. The role of AO2 was known to the ACB officials only through AO1. The incriminating material i.e. the tainted currency notes recovered from AO2 proves the involvement of both the appellants in the offence, as one led to the other and proves that AO2 acted on behalf of AO1 and received tainted currency notes as illegal gratification as per the demand of AO1, for doing the official favor of handing over the cheque for the works done by the complainant/his father.

The official favour pending with AO1 was spoken by PW’s 4 and 5. PW4 stated about the accountant (AO1) receiving the cheque after obtaining the signatures of the Chief Examiner of Accounts and the Zonal Commissioner and that AO2 was the assistant under AO1 and was maintaining the cheque issue register. The duties of the accountant were spoken by PW5. He stated that the preparation of cheques, preparation of bills relating to works done by the contractors and handing over the cheques to the concerned was the duty of the accountant (AO1). Thus the official favor pending with AO1 was stated by PW’s 4 and 5.

PW7, the father of the complainant stated that he entrusted the execution of the work to PW1 being his son due to his health problems. He stated about the agreement entered by him with the EE, Electrical Division on 15-10-2008 and that the contract was completed by 27-10-2008 and an amount of Rs. 3,75,000 was due to him by GHMC and PW1 told him about the demand of amount by AO1. Thus, his evidence would prove that he orally authorized his son to look after the execution of the work as well as collection of cheque from the office. If the contention of the learned counsel for the appellants is to be believed that PW1 could not be considered as the agent of the original contractor and there was no written authorization given by PW7 to PW1, the accused persons also could not have handed over the cheque to PW1 without any authorization. Hence, the said contention is not considered as valid.

PW9 speaks about the sanction issued by the Principal Secretary to the Government, Municipal Administration and Urban Development Department to prosecute the AO1 vide GOMs No. 494 dated 31-7-2009.

PW11 is the Inspector of Police ACB, City Range 1, Hyderabad who recorded the statements of the witnesses and filed the charge sheet. The evidence of PW’s 9 and 11 is only formal in nature.

Thus the evidence of PWs.1, 2, 4, 5, 6, 7 and 10 proves that the appellants –AOs.1 and 2 accepted the gratification from PW1 as a motive or reward for doing the official act of issuing the cheque to PW.1. Once the acceptance is proved, the court is permitted to raise presumption under Section 20 of the PC Act. The said provision states that when in any trial of offence, which is punishable under Section 7 or 11 or 13 (1) (a), the prosecution if proves that the accused had accepted or obtained or has agreed to accept or obtain any gift, gratification either for him or for any other person, the courts are permitted to raise a presumption under this Section. The presumption under Section 20 is the presumption of law. The use of the term ‘shall presume’ makes it an obligation on the courts to raise the presumption, once the acceptance of gratification is proved. When the prosecution proved the essentials for bringing presumption, the court has to carry on the said basis unless the contrary is proved that any valuable thing attained or received by the accused was received as a reward or motive or for a consideration. The presumption raised is rebuttal in nature. The accused can adduce evidence to the contrary. But the appellants failed to adduce any evidence to prove as to how the tainted currency notes came into their possession. The theory of thrust taken by AO2 cannot be believed particularly when the tainted currency was recovered from his back side pant pocket, which is not a possible place of thrust by the complainant. The hands of AO2 testing positive, proves that he received the said amount and kept it in his back pant pocket.

On appreciating the evidence of the witnesses on record, this Court does not find any illegality in the findings and observation of the trial court in considering the guilt of the appellants and convicting them and sentencing them as aforesaid. The sentences inflicted on the appellants is also considered as appropriate.

Hence, the points No.1 and 2 are answered in favour of the prosecution as against the appellants.

POINT No.(iii): In view of the above discussion, point No.3 is answered upholding the judgment of the trial court confirming the conviction and sentences rendered by it and dismissing the appeal.

In the result, Criminal Appeal is dismissed confirming the conviction and sentence passed by the I Addl. Special Judge for SPE & ACB cases, City Civil Court, Hyderabad in C.C. No.35 of 2009 dated 23-7-2013 against the appellant No.1 – Accused Officer No.1 for the offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act 1988 and against the appellant No.2 – Accused Officer No.2 for the offence under Section 12 of the Prevention of Corruption Act 1988. The bail granted to the appellants – accused officers during the pendency of the criminal appeal shall stand cancelled. The appellants-accused officers shall surrender forthwith before the Court below, and suffer the rest of the sentence, as confirmed by this Court. In the event the appellants-accused officers fail to do so, the Court below shall initiate steps in accordance with law to apprehend and incarcerate them for the balance period as per the confirmed sentence.

Miscellaneous petitions pending, if any, shall stand closed.