The Honble Supreme Court, in Neeraj Dutta v. State

HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.183O OF 2OO9 JUDGMENT: 1. The appellant was convicted for the offences under Section 7 and Sections 13(1)(d) r /w L3(21 of the Prevention of Cormption Act, 1988, and sentenced to rigorous imprisonment for a period of one year under both counts vide judgment in C.C.No.19 of 2005, dated

23.1O.2OO9, passed by the Principal Special Judge for trial of SPE and ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, present appeal is filed.

2. Heard, Sri A.Vishwanath, learned Counsel for the appellant and Sri M.BaIa l\Iohan Reddy, learned Special Public.Prosecutor for ACB.

3. Briefly, the case of the prosecution is that the appellant worked as the llenior Stenographer, M.G.M Hospital, Warangal, from 1995 to 2002. The complainant/P.W. 1 obtained a sanitation contract work through tenders during November, 2001, with effect from 01.01.2002 for a period of six months. P.W. I submitted a petition to the liuperintendent of M.G.M Hospital, Warangal, 1n JuLy, 2OO2, for an extension of his sanitation contract work for "\ 2 another six months. The file pertaining to p.W. 1 came up befOre the appellant. P.W. 1 approached the appellant and requested him to issue a copy of the sanitation contract extension order. For the said purpose, the appellant demanded Rs.1O,O00/-. When p.W. 1 pleaded inability, the appellant asked p.W. 1 to initially pay Rs.S,OOO/- and to pay the balance amount later.

4. Unwilling to pay the bribe amount, p.W. 1 approached the DSP/ACB/L.W.13 on 26.08.2002 at 10.30 hours, and lodged a complaint against the appeilant under Ex.p6. pursuant to which, DSP, ACB registered the above complaint as FIR vide Crime No.9/ACB-WRL/2OO2 on 27.O8.2O02. Ex.p18 is the FIR. The DSp, ACB procured two mediators, who ffe, p.W.2 and L.W.3- G.Kondaiah on 27.O8.2OO2.

5. The pre-trap proceedings were concluded under Ex.pg. The DSP asked P.W.2-independent mediator to accompaly p.W. 1 and to observe what transpires in between the appellant and p.W. 1. Thereafter, P.W. 1, mediators, DSp, ACB, and other trap party members, including P.W.9-Inspector of police, ACB, Warangal Range, went to the office of M.G.M. Hospital, Warangal, and laid the 3 trap against the appellant. While the DSP ald other trap members were waiting outside the oIfice of the MRO, P.Ws.l and 2 went inside the oflice of MGM Hospital at 10.10 a.m on 27.O8.2OO2, and at 10.50 a.m, P.W. 1 conveyed the pre-arranged signal, indicating the demand and acceptance of bribe by the appellant. Thereafter, the DSP and other trap members went inside the office and caught hold of the appellant.

6. A test on both hands of the appellant with sodium carbonate solution turned positive. The tainted amount of Rs.S,OOO/- was recovered from the left side shirt pocket of the appellant. The DSp, ACB drafted post-trap proceedings under Ex.P13, dated

27.O8.2OO2. The appellant produced Ex.P9-file pertaining to p.W. 1 consisting of 5O pages. P.W.s produced Ex.P1O, outward register, and Ex.P11, attendance register, and the sarne were seized by the DSP, ACB. Thereafter, the investigation was handed over to Jagadishwar Reddy.

7. L.W. l5-Jagadiswar Reddy, Inspector, ACB, Warangal Range, has filed a charge sheet against the appellant, after obtaining the sanction order under Ex.P17, dated 29.10 .2OO4. l \ 4

8. Learned Special Judge examined P.Ws.l to 9, and marked Exs.Pl to P18, and MOs.l to 8 were a_lso brought on record on behalf of the prosecution. D.W. l-Mohd.Afzal Khan, Senior Assistant, MGM Hospital, was examined on behalf of the defence. D.W. 1 stated that in his presence, P.W.l repaid the hand loan amount given to the appeliant on the date of the alleged trap. D.W. 1 categorically deposed in his evidence about the actual events that transpired on the date of the alleged trap.

9. Learned counsel appearing for the appellant submits that P.W. 1, in his evidence, categorically deposed that the appellant never demanded, nor accepted any bribe amount. On the date of the trap, P.W. 1 repaid the hand loan amount of Rs.5,000/- to the appellant, and that during that time, D.W. 1 was present in the office room of the appellant. P.W. 1 further stated in his evidence that the contents of the complaint under Ex.P1 are fabricated, at the instance of L.W. 1O/Dr.K.Raji Reddy, Civil Surgeon/RMO, MGM Hospital, Warangal. L.W. 10 is in the habit of issuing memos to the subordinate staff, who are not loyal to him, and in the said context, he suspended around 22 employees 1n M.G.M Hospital. P.W.9- l ' i I 5 Inspector of Police, deposed in his cross-examination that LW10 had involved th,ree government employees in ACB Trap cases. However, L.W. 10 was not examined by the prosecution.

10. Learned counsel for the appellant further submits that there is no offrcial favour pending in the hands of the appellant. Ex.P5 is the application dated Ol.O7 .2OO2 submitted by Ir.W. 1 to the Superintendent, M.G.M Hospital, Warangal, seeking an extension of the Sanitary Contract for a period of one year. A proposal was sent to the District C)o1lector, who is the Ex-officio Chairman of MGM Hospital, and is the competent person to issue the extension order to the contractors. The District Collector issued the extension orders on 4.7.2002 in favour of P.W. 1 and P.W.3 for their sanitation and security contract work at MGM Hospital, Waralgal, and to that effect, proceedings were issued by RMO on 22.8.2OO2 under the original of Ex.P115.

11. P.W.4-SmtT.Suma, the then Junior Assistant, received the original of Ex.P15 contract extension order pertaining to P.W. 1 on

22123.O8.2OO2, and she made entries regarding the same in the '\}. 6 Out Ward Register/trx.P10. She also received the extension order pertaining to P.W.3 ald she made an entry in Ex.P1O. P.W.4 handed over the above proceedings related to P.W. 1 and P.W.3 to P.W.5/Mohd.Amjad Ali, to be handed over to P.W. 1 and p.W.3. But on 23.08.2002, P.W.5 did not hand over the extension orders to P.W. i and P.W.3, and as such, he returned the original proceedings again to P.W.4.

12. Learned counsel further submits that 24.08.2002 was a Government declared holiday, and that 25.08.2002 was a Sunday. Therefore, on 26.O8.2002, P.W.4 again handed over the original extension proceedings belonging to P.W. 1 and P.W.3 to Amjad Ali, at about 10.30 a.m to be handed over to P.W. 1 and P.W.3. P.W.s handed over the above two extension orders to P.W.3, and the initial was also obtained in the outward register on 26.08.2002, i.e., in Ex.P10, against S1.No.648 arLd 649, in token of the receipt of two extension orders by P.W.3. The evidence of P.Ws.3, 4, and 5 coupled with Ex.P1O documentary evidence, would establish the above facts.

13. Learned counsel for the appellant further submits that the mediators'reports were prepared by the DSP, ACB, with the help of 7 mediators, to suit the case of the prosecution. P.W.2 deposed that the amount was given to the appellant by P.W. 1, however, the appellant did not demand any amount from P.W- 1. It is the defence of the appellant that he received the amount from P.W. 1 towards the repayment o1 a hand loan, but not as a bribe.

14. Learned Speciat Judge observed that Ex.P15 is the extension contract order of P.W. 1, and that the appellant kept the same pending without allowing the same to be issued to P.W.l, and the same was seized by the DSP, ACB from the possession of the appellant during the post trap proceedings. The learned Special Judge concluded that the extension ord.er issued by L-W. 1O to P.W. 1 was with the appellant only, as such, an official favour was pending with the appellant till the date of the alleged trap incident on 27.O8.2OO2.

15. The hnding of the learned Special Judge is contrary to the evidence of P.Ws.3 to 5. That apart, it is admitted that Ex.P15 is the oflice copy of the extension order issued by L.W. 1 0 to P.W. 1.

16. It is also admitted by p.W.9/Inspbctor of police, ACB, in his cross-examination that on 26.O8.2OO2, p.W.3 received two extension orders and in token thereof, he signed in the outward register in Ex.P10 at Seriai Numbers 648 and 649. However, the trap was arranged on 27.O8.2OO2.

77. The Honble Supreme Court, in Neeraj Dutta v. State (Government of N.C.T of Delhif, in Criminal Appeal No.1669 of 2OO9, dated 15.72.2022, held that the presumption of fact regarding the demand and acceptance or obtaining illegal gratification may be made by the Court by way of inference only when the foundational facts have been proved by relevant oral and documentary evidence, and not in their absence. In the instant case, from the evidence of P.Ws.l, 3, 5, and 9, it is clearly established that there was no oIlicial favour pending with the appellant, as on the date of the trap. P.W. 1 categorically stated that he repaid the hand loan of Rs.S,OOO/- to the appellant on the date of the alleged trap. I I 9

18. The Hont>le Supreme Court, in N.Sunkanna v. State of Andhra Pradesh 1 , held that demand should be proved by the prosecution beyond reasonable doubt, and unless such proof is placed before the Court by the prosecution, the presumption under Section 20 of lhe Act cannot be drawn- In the said case, the complainant turned hostiie to the prosecution case and did not support the allegation of demand for bribe by the appellant.

19. In C.M.Girish Babu v. CBI, Cochin, High Court of Kerala2, the Hon'ble Supreme Court held that, mere recovery of tainted currency is not enough to prove the guilt of the appellant, in the absence of evidence to establish demand for a bribe and that the appellant voluntarily accepted the money, knowing it to be a bribe.

20. In Punjabrao v. State of Maharashtra3, the Honble Supreme Court held tha.t if the explanation offered by the accused is probable, the same can be considered by the Court. In B.Jayaraj v. , State of Andhra Pradesha, the Hon'lcle Supreme Cottrt, in the backo. I ' zo:..5 cri.L.! +gzl 2 (20091 3 supreme court Cases 779 '1zOO21 10 Supreme Court Cases 371 o 12Ot+1 13 Supreme Court Cases 55 10 :1.: ground of the complainant/defacto complainant turning hostile, held that, the prosecution was not able to prove the demand beyond reasonable doubt and mere recovery of the amount cannot form basis to constitute the offences under Sections 7 and 13(1)(d) r/w Section 13 (2) of the Prevention of Corruption Act.

21. In view of the foregoing discussion and the hostility of p.W. 1, the claim of demand was not established by the prosecution beyond reasonable doubt. In the absence of proof of demand, recovery aspect cannot form basis to record conviction. Further, there was no ofhcia,l work pending with the appellant, as discussed earlier. For the said reason, beneht ofdoubt is extended to the appelrant. I I

22. In the result, the judgment of trial Court in C.C.No.19 of 2OO5, dated 23.12.2009 is set aside, and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand discharged.

23. Accordingly, Criminal Appeal is allowed. ,TRUE COPY' SD/.K.SRINIVASA RAO OINT REGISTRAR I ECTION OFFICER To,

1. The Principal Special Judge for SPE & ACB cases, City Civil Court, Hyderabad.(With records)

2. The lnspector of Police, ACB, Warangal Range, Warangal. 3. Two CCs to Public Prosecutor, High Court for the State of Telangana al Hyderabad. (OUT)

4. One CC to Sri. A Viswanath Advocate IOPUC] 5. one CC to Sri lvl Bala Mohan Reddy Special Public Prosecutor for ACB TOPUC] 6. Two CD Copies DL/PSL Y{ "\ HIGH COURT DATED:19/0312025 JUDGMENT CRLA.No.1B30 of 2009 1r.iE iIAr$ ) I I I APi 20?5 r '; a oFS.'r, ALLOWING T.HE CRlMINAL APPEAL a.ed"h #*