2014 INSC 0041
G. Harinatha Rao
v.
State of A.P. Rep. ACB
(Supreme Court Of India)
HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD HON'BLE MR.
JUSTICE PINAKI CHANDRA GHOSE
Criminal Appeal No. 1378 Of 2011 | 15-01-2014

1. Appellant along with another accused were put on trial for offences under
Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,
1988 (hereinafter referred to as `the Act'). Principal Special Judge for SPE &
ACB cases by judgment and order dated 29.10.2013 held the appellant guilty
for the aforesaid offences but acquitted the co-accused. The appellant was
sentenced to undergo rigorous imprisonment for a period of two years and fine
of Rs. 5,000/-, in default, to undergo simple imprisonment for one month each
for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of
the Act.

2. Aggrieved by the conviction and sentence, the appellant herein preferred
Criminal Appeal No. 1183 of 2003 whereas the State, aggrieved by the acquittal
of the co-accused, preferred Criminal Appeal No. 783 of 2004. Both the appeals
were heard together and dismissed by the impugned order. It is against the
dismissal of the appeal preferred by the appellant herein against his conviction
and sentence that he has preferred this appeal with the leave of the Court.

3. Criminal prosecution was set in motion on the basis of a report given by PW-
1 P.S. Janardhana Rao before the Deputy Superintendent of Police, ACB City
Range, on 3.06.1997. According to the report, the informant had 9.08 guntas of
land at Survey Nos. 235 and 223 and 3.25 guntas of land at Survey No. 235 at
Gudimalkapur Village, Hyderabad. According to the report, PW-1 had
transferred the entire land, excepting 2500 yards, to a Cooperative Society. In
the year 1996, he wanted to sell the 2500 yards of land, which he had retained.
One Gnanesar along with some other persons demanded money from him which
was refused by the informant. Those persons made allegations that the
informant had encroached the land and, accordingly, approached the Land

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Grabbing Court. On the basis of that, land grabbing case was registered and one
Advocate Commissioner was appointed to take measurement of the said land.
The Advocate Commissioner directed the informant to be present at the site
and, according to the informant, he along with the Officers of the Cooperative
Society went to the site. It is alleged that the Advocate Commissioner and the
appellant, who at the relevant time was working as the Survey Inspector, and
the Assistant Surveyor (since acquitted) had visited the site several times.
According to the report, the appellant and the co-accused called him (PW-1)
separately and asked him to pay a sum of Rs. 20,000/- for preparing a
favourable report. They are alleged to have stated that in case the amount is paid
they would prepare the report in his favour and in case he does not do so, they
will give an adverse report. In the report it had been further alleged that the
informant approached the appellant on 2.06.1997 and requested him to do
justice. At this, the appellant is alleged to have demanded Rs. 20,000/- to do
justice and when the informant showed his inability to pay the said amount, he
had reduced the bribe amount to Rs. 5,000/- and asked him to come in the
evening on 3.06.1997 to pay the said amount.

4. On the basis of the aforesaid statement, a case was registered and after the
investigation, the Police submitted a chargesheet and the appellant was put on
trial. The appellant denied to have committed any offence and from the trend of
the cross-examination, his defence seems to be that he never made any demand
for illegal gratification.

5. The trial court on analysis of the evidence came to the conclusion that the
prosecution has been able to prove its case beyond all reasonable doubts so far
as this appellant is concerned. However, the trial court acquitted the co-accused.
The said order, as stated earlier, has been affirmed by the High Court on appeal.

6. The informant-P.S. Jnardhana Rao was examined as PW-1 during the course
of trial. He has a different story to tell during the trial. According to this
witness, when the matter was being adjourned, he thought that the appellant
would not do the work unless bribe is paid. He has further stated that when he
wanted to give bribe to the appellant, he refused but has put the money on the
chair. The prosecution declared him as a hostile witness and cross-examined
him. During the course of cross-examination, he had admitted to have given the
First Information Report marked as Exhibit P-1 and stated that in the said report

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it is mentioned that the appellant had called him outside and demanded Rs.
20,000/- for measuring the land. PW-2 P. Syam Prasad is one of the shadow
witnesses. He has also not supported the case of the prosecution and has been
declared hostile. When cross-examined, he has stated that it may be possible
that the appellant had demanded money from PW-1 P.S. Janardhana Rao and
kept beneath his left thigh on the chair. He also stated that the informant might
have given. However, he has categorically stated that he did not hear the
conversation clearly and he cannot say as to whether any demand was made.
PW-3 Mr. N. Mallesh Rao, who at the relevant time was working as a Joint
Director of Industries, has been examined to support the pre-trap and post-trap
proceedings. He has stated about the complaint made by the informant - PW-1,
the instruction given by the Investigating Officer before the trap and what has
happened after the trap.

7. Mr. Y. Raja Gopala Rao, learned counsel appearing on behalf of the
appellant, raises a very short point. He submits that there is no evidence to show
that the appellant made any demand for payment of illegal gratification and
accepted the same. He submits that mere recovery of the amount from the
appellant is not sufficient to hold him guilty. Accordingly, he prays for acquittal
of the appellant.

8. On the other hand, Mr. Shiv Ram Sharma, learned counsel appearing on
behalf of the respondent, submits that in the cross-examination, the informant
PW-1 has admitted to have given the report which contains the allegation of
demand by the appellant herein and that is good enough to sustain the
appellant's conviction. He further points out that PW-3 Mr. N. Mallesh Rao, the
pre-trap and post-trap witness, has clearly stated about the report given by the
informant PW-1 and, therefore, the courts below did not err in convicting the
appellant.

9. We have bestowed our consideration to the rival submissions and we find
substance in the submission of Mr. Rao, learned counsel for the appellant. The
informant- PW-1 during the course of trial has nowhere stated that any demand
was made by the appellant. So also, the trap witness, PW-2. PW-1 has gone to
the extent of saying that as the matter was being adjourned on several dates, he
thought that the appellant will not do his work unless he bribed him with cash
and with this notion, he went to meet the appellant, gave money, which he

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refused. Merely because this witness has admitted to have given the report
alleging demand of bribe by the appellant would not be sufficient to hold that he
made such a demand. In the present case, the prosecution attempted to prove the
guilt of the appellant by direct evidence. The informant PW-1 and shadow-
witness PW-2 made statements before the Court which were quite different
from the one made by them during the course of investigation. In the light of
aforesaid, the demand and acceptance cannot be said to have been proved in
accordance with law. In the state of evidence, we feel it unsafe to sustain the
conviction of the appellant. Accordingly, we give him the benefit of doubt.

10. In the result, the appeal is allowed, the impugned judgment and order passed
by the High Court is set aside. The appellant is on bail. He shall be discharged
of his bail bonds.

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