K SHANTHAMMA Vs. STATE OF A P

JUDGEMENT

(1.) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), is filed by the appellant/Accused Officer (AO) aggrieved by the judgment dated 29.12.2006 in C.C.No.11 of 2002 passed by the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, whereby and whereunder, the Court below found the appellant/AO guilty for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short "PC Act") and accordingly, she was convicted and sentenced to undergo Rigorous Imprisonment for a period of one(1) year and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for one(1) month for the offence under Section 7 of PC Act and further, she was sentenced to undergo rigorous imprisonment for a period of one(1) year and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for one(1) month for the offence under Section 13(1)(d) r/w 13(2) of PC Act. Both the substantives sentences were directed to run concurrently.

(2.) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for the appellant/AO and Sri N.Ananda Rao, learned Special Public Prosecutor for ACB representing the respondent/ State and perused the record.

(3.) Learned counsel for the appellant/AO would submit that PW.1 was the decoy and crucial witness to prove the demand and acceptance of tainted amount of Rs.2,000/- but his evidence is totally improvised version suffering from omissions and contradictions. PW.1 in his evidence categorically stated that he produced records relating to the Returns of 1996-97. The AO called for ACTO concerned and directed him to verify the records and put up the note for assessment. Again on the evening of 24.02.2000, PW.1 met the AO in her office and the AO demanded Rs.3,000/-. PW.1 in his cross-examination admitted that he did not mention in Ex.P.3-report that on 24.02.2000 he met AO in the evening hours after submission of books in the morning and that the AO demanded Rs.3,000/- bribe to issue the Final Assessment Order. PW.1 did not state in his statement recorded under Section 161 Cr.P.C that during evening on 24.02.2000 he met the AO and the AO demanded the bribe. There is no mention in Ex.P.3-report that PW.1 continuously met the AO for three days and the AO reiterated the demand. There is also no mention in Ex.P.3-report that on 29.02.2000, PW.1 approached the AO and the AO demanded bribe of Rs.3,000/-. It is contended that the evidence of PW.1 and other prosecution witnesses is totally improved from stage to stage and hence the same cannot be taken into consideration as they are not truthful witnesses. PW.1 admitted in his cross-examination that he did not state in his 161 or 164 Cr.P.C statements that he collected the general ledger and cash book from the attender after affixing the rubber stamp thereon on 27.03.2000. So the said books were collected on 26.02.2000 only, which is much prior to trap. PW.1 specifically admitted that the tainted amount was in the diary and the diary was in the table drawer of AO. There is inconsistency between the evidence of PW.1 and PW.8-Dy.SP, ACB, in this regard. This establishes that the tainted money was planted by PW.1 in the diary without the knowledge of AO, when she went to washroom attached to her room/chambers. So the explanation given by the AO that she neither demanded nor accepted the alleged bribe amount of Rs.2,000/- is proved. PW.1 stated that he had shown Ex.P1(a)- office copy of the served notice to ACB officials during pre-trap proceedings. However, PW.8-Dy.SP, ACB, stated that he was not shown Ex.P.1(a). It establishes that PW.1 is not a trustworthy witness. There is admission of PW.1 that Ex.P5-attendance certificate does not bear the official rubber stamp of office of the AO or ACTO or the signature of AO. Ex.P.5-attendance certificate is fabricated. PW.1 has admitted that the AO verified the books of accounts submitted on 24.02.2000. On verification of books of accounts, the tax payable on the turnover of the dealer was -Nil-. Ex.P.1(a) also disclosed that AO signed on Ex.P.1(a) on 26.02.2000 itself. It is further contended that PW.4 was brought from check post to the office of AO and was issued memos by the AO for completion of Final Assessment Order for the year 1996-97, for which PW.4 bore grudge against the AO and deposed as if the AO signed the books of accounts of the Farmers Service Cooperative Society Limited on 27.03.2000 with antedate as 26.02.2000 and falsely implicated the AO. It is also contended that there is no favour pending with AO to demand any bribe and accept the same. It is also contended that there was no occasion to demand bribe from PW.1 on 24.02.2000 as Ex.P.1(a) notice was signed on 26.02.2000, wherein it is mentioned that total turnover and tax to be paid as -Nil-. Ex.P.1(a) would not have been issued without receiving the alleged bribe. The whole prosecution case is foisted with the help of PW.4 to eliminate the AO from the office as she was honest and strict officer. The prosecution miserably failed to prove the demand on 24.02.2000 either morning or evening. The tainted amount was also not recovered from the possession of AO. So no reliance can be placed on the evidence of PWs.1 and 4. It is also submitted that settled principle of law is that the AO need not prove his/her defence to the hilt, but it is sufficient that the AO makes out a case on preponderance of probabilities in his/her favour from the evidence on record. It is also contended that PW.8-Dy.S.P, ACB, has not properly investigated the case. PW.8 had not verified the antecedents of the AO before trap. The subject criminal case is foisted for statistical purpose. At the time of trap, the AO gave spontaneous explanation to PW.8 that she never demanded nor accepted any bribe amount from PW.1 and that she does not know how the tainted amount came into her table drawer. PW.8 admitted in his evidence that inspite of his specific instructions to LW.8-mediator to accompany PW.1 to the room of the AO, LW.8 did not enter into the room along with PW.1. The non-examination of LW.8 is also fatal to the case of prosecution. It is also contended that there was no official favour pending with AO, only formal Assessment Order was required to be issued in due course. The chemical analysis test proved negative and nothing was recovered from the physical possession of the AO. To buttress his argument, learned counsel for the appellant/AO relied upon the following decisions: