JUDGMENT : Feeling aggrieved by the judgment dated 30.11.2006 passed by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in Calendar Case No.18 of 2000, 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 he was convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one (01) month under each count. 3. During pendency of the present appeal, the appellant - Accused Officer died on 28.04.2013, and his wife being legal heir - Mrs. Satyendra was brought on record as appellant No.2 in the aforesaid appeal. 4. The facts that led to filing the present appeal are as follows: The deceased Accused Officer - J. Babu Rao worked as Sanitary Supervisor in Ward No.12 of Circle - IV, Municipal Corporation of Hyderabad (MCH), Gudimalkapur, Hyderabad, at the relevant point of time. 5. De facto - complainant, Mr. T. Krishna, PW.1, Contractor in Circle - IV, Ward No.12, West Zone, MCH, Hyderabad, undertakes work of street cleaning and lifting of garbage in Ward No.12. 6. PW.1 submitted Ex.P2 - bill along with enclosures for an amount of Rs.84,040/- for the month of January, 1999 to the Accused Officer on 03.02.1999. The Accused Officer demanded PW.1 to pay an amount of Rs.5,000/- as bribe for doing an official favour viz., processing and preparing the bill extract and for forwarding the same to the Head Office through Circle - IV for sanction of the amount. 7. Since PW.1 was unwilling to pay the said amount of Rs.5,000/- to the Accused Officer approached ACB Officials on 05.02.1999 and informed about the demand of bribe by the Accused Officer. Then, the DSP, ACB, City Range - II, Hyderabad, recorded the statement of PW.1, read over to him in vernacular language and having been admitted to be true, signed on the said statement marked as Ex.P14. Thereafter, the ACB Officials registered a case in Crime No.4/ACB-CR/1999 against the Accused Officer under Sections 7 and 11 of the Act on 05.02.1999 at 1.45 p.m. 8. Thereafter, the ACB Officials registered a case in Crime No.4/ACB-CR/1999 against the Accused Officer under Sections 7 and 11 of the Act on 05.02.1999 at 1.45 p.m. 8. The ACB Officials after following the due procedure laid a trap against the Accused Officer on 05.02.1999 at 5.00 p.m. at his office. During the course of trap, the Accused Officer demanded and accepted the bribe amount of Rs.5,000/- from PW.1 as illegal gratification other than legal remuneration for doing the official favour of process the bill and sending the same to the Head Office for sanction. 9. After completion of investigation, the ACB Officials filed a charge sheet against the Accused Officer and the same was taken on file vide C.C. No.18 of 2000 for the aforesaid offences. 10. The trial Court framed charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Act. On examination, the Accused Officers denied the said charges and prayed for trial. Accordingly the trial Court proceeded with the trial. 11. During trial, prosecution examined as many as nine (09) witnesses as PWs.1 to 9, marked Exs.P1 to P15 and MOs.1 to 6 were exhibited. In support of defence, the Accused Officer examined two (02) witnesses i.e., DWs.1 and 2 and marked Exs.D-1 to D-3. However, Exs.C1 and C2 were also marked. 12. After completion of the trial and 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 30.11.2006 in C.C. No.18 of 2000 and imposed the punishment in the manner stated supra. 13. Feeling aggrieved by the said judgment, the Accused Officer preferred the present appeal. It is relevant to note that during pendency of the present appeal, Accused Officer died and his wife being legal heir was brought on record. 14. Heard Mr. Dittakavi Jayasurya, learned counsel for the appellant and Mr. T.L. Nayan Kumar, learned Additional Standing Counsel - cum - Special Public Prosecutor for ACB Cases for the State of Telangana appearing on behalf of the respondent. 15. Impugning the judgment, the learned counsel for the appellant would contend that the prosecution failed to prove the twin requirements of demand and acceptance. T.L. Nayan Kumar, learned Additional Standing Counsel - cum - Special Public Prosecutor for ACB Cases for the State of Telangana appearing on behalf of the respondent. 15. Impugning the judgment, the learned counsel for the appellant would contend that the prosecution failed to prove the twin requirements of demand and acceptance. According to him, PW.1, the de facto complainant, and PW.2, the accompanying witness, turned hostile and the prosecution did not examine any independent witness to prove the demand of acceptance of illegal gratification by the Accused Officer. He would further contend that, in fact the Accused Officer prepared defect sheets and shown deductions in the bill submitted by PW.1 and thereby the contract of PW.1 was terminated by PW.5. In the said process, PW.1 bore grudge against the Accused Officer, tried to implicate in a false case and accordingly approached the ACB Officials by making a statement to the DSP. 16. The learned counsel would further contend that on the day of trap, in the absence of Accused Officer, PW.1 planted the tainted amount of Rs.5,000/- in the table drawer when the Accused Officer was in toilet. Thereafter, PW.1 shook hands with him on the Accused Officer coming back from the toilet and asked him for checking the bill. In the process of shaking the hands, phenolphthalein powder particles were came into contact and that was the reason why the chemical tests turned positive. According to him, prosecution witnesses being Government Officials (PWs.4 and 5) did not support the prosecution case. In fact, the Accused Officer neither demanded nor accepted the amount as a bribe from PW.1. 17. The learned counsel also contended that mere recovery of tainted notes is not sufficient and the prosecution has to prove both demand and acceptance by producing relevant witnesses like any other criminal offence. According to him, there was no official favour that was pending with the Accused Officer to do to PW.1 at the relevant point of time. Therefore, the question of the Accused Officer demanding and accepting the bribe does not arise. There are serious contradictions in the depositions of prosecution witnesses which the trial Court did not consider. The trial Court also failed to consider the animosity between PW.1 and the Accused Officer. Therefore, the question of the Accused Officer demanding and accepting the bribe does not arise. There are serious contradictions in the depositions of prosecution witnesses which the trial Court did not consider. The trial Court also failed to consider the animosity between PW.1 and the Accused Officer. He would further contend that the trial Court without appreciating the depositions and documentary evidence convicted the Accused Officer only on surmises and conjunctures and by erroneously drawing presumption under Section 20 of the Act and also under Section 114 of the Indian Evidence Act. 18. With the said contentions, the learned counsel for the appellants prayed for acquittal of the Accused Officer by setting aside the impugned judgment. 19. On the other hand, supporting the impugned judgment, the learned Special Public Prosecutor would contend that the prosecution has successfully proved the guilt of the Accused Officer. The trap proceedings and recovery of tainted money is admitted and, therefore, the burden is on the Accused Officer to disprove the guilt, which the Accused Officer failed to discharge. There is no spot explanation offered by the Accused Officer. The defence theory of animosity taken by the Accused Officer is only an after-thought, which is evident from the depositions of DWs.1 and 2. The Accused Officer failed to explain as to his knowledge about PW.1 keeping the money in his right side table drawer since the Accused Officer took the tainted currency notes from his right side table drawer. Thus, the trial Court has rightly convicted the Accused Officer vide impugned judgment by drawing presumption under Section 20 of the Act and Section 114 of the Evidence Act. According to him, there is no error in the impugned judgment, and with the said contentions, he prayed for dismissal of the appeal. 20. In view of the above rival contentions, the following points that arise for consideration: (i) Whether there was any official favour pending with the Accused Officer to do the same to PW.1 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): 21. In the present case, the prosecution has examined nine witnesses. (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): 21. In the present case, the prosecution has examined nine witnesses. PW.1, de facto complainant, PW.2, accompanying witness, PW.4, retired employee of MCH, PW.5, Assistant Medical Officer (Health), were declared as hostile. 22. In view of the fact that the de facto complainant - PW.1 disowned to his statement - Ex.14 and, therefore, heavy burden lies on the prosecution to prove the demand and acceptance of bribe either during the cross-examination of PW.1 and PW.2 or through an independent witness. 23. As per the prosecution, the Accused Officer has demanded the bribe from PW.1 for processing and preparing his bill extract and for forwarding the same to the Head Office through Circle IV for sanction of the said amount. According to the prosecution, processing and preparing of the bill and forwarding the same to the Head Office for sanction of the said bill was the official favour that was pending with the Accused Officer at the relevant point of time. 24. Admittedly, PW.1 was Contractor in MCH and he used to undertake garbage lifting contract works. The said work was awarded to him through lucky dip. He was given contract works to lift the garbage in Asifnagar, Mallepally, Sitarambagh and Dattatreyanagar Areas. He has engaged employees for execution of the said work and also five lorry labourers and two Supervisors. He has taken one lorry on hire. In September, 1998, he has commenced the work. He used to submit bills claiming the amount in the first week of subsequent month. The value of the said contract per month was Rs.84,040/-. PW.1 used to submit the bills to the Sanitary Supervising Officer of MCH. Accused Officer was the then Sanitary Supervising Officer. The said facts are not disputed by either prosecution or the Accused Officer. 25. PW.6 is the Assistant Medical Officer (Health), Head Officer, MCH at the relevant point of time. He deposed about issuance of notification in Newspapers calling from labour contractors for sweeping and lifting of garbage etc. Accused Officer was the then Sanitary Supervising Officer. The said facts are not disputed by either prosecution or the Accused Officer. 25. PW.6 is the Assistant Medical Officer (Health), Head Officer, MCH at the relevant point of time. He deposed about issuance of notification in Newspapers calling from labour contractors for sweeping and lifting of garbage etc. He also deposed about receipt of tenders from PW.1 and allotment of contract to him for the above said areas through drawl of lots. He has also deposed that the monthly bill in respect of the said work is Rs.84,040/-. He has further deposed on 30th January, 1999, he has received a file from the Additional Commissioner (Operations) with an endorsement “please put up” and the said file was received from Circle IV, MCH. On 03.02.1999, his section had put up the file to the Additional Commissioner (Operations), MCH, for orders and on the same day the Additional Commissioner ordered for cancellation of works allotted to PW.1. His office received file on 05.02.1999 with an endorsement of cancellation. To comply with the orders of Additional Commissioner, the Section Head put up cancellation proceedings before him on 06.02.1999, on which date he has received saving gram from ACB to Additional Commissioner (Operations). 26. From the depositions of PW.1 and PW.6, the procedure for sending the bills and sanction of the same is that PW.1 has to submit the bill to the Sanitary Supervising Officer of the MCH concerned who in turn would process the same for preparing the said bill extract and for forwarding the same to the Head Office for sanction of the said amount. It is not in dispute that the Accused Officer was the Sanitary Supervising Officer concerned at the relevant point of time to the areas to which contract was awarded in favour of PW.1. Therefore, the Accused Officer was in a position to do official favour of receiving, preparing bill extract from PW.1 and processing the same to the Head Office for sanction of the said bill. Thus, the prosecution has proved the pendency of official favour to do to PW.1 at the relevant point of time. 27. To prove the demand and acceptance of illegal gratification by the Accused Officer from PW.1, the prosecution has proved PW.1, PW.2, PW.3 and PW.8 - DSP, ACB. Thus, the prosecution has proved the pendency of official favour to do to PW.1 at the relevant point of time. 27. To prove the demand and acceptance of illegal gratification by the Accused Officer from PW.1, the prosecution has proved PW.1, PW.2, PW.3 and PW.8 - DSP, ACB. The prosecution has also filed Ex.P14 - statement recorded by the DSP, ACB on 05.02.1999 which bears Ex.P1 - signature of PW.1, Ex.P2 bill with enclosures for the month of January, 1999 and Ex.P11 - FIR. 28. PW.1 approached the ACB Officials and informed about the demand of illegal gratification of Rs.5,000/- by the Accused Officer for doing the above said official favour. Thereafter, his statement was recorded under Ex.P14 by PW.8 - DSP, ACB and his signature was Ex.P1 on Ex.P14. The said Ex.P14 was recorded as stated by PW.1, read over to him and on understanding only he has signed in Ex.P14 and his signature is Ex.P1. Thus, PW.1 set the law in motion. It is also an admitted fact that on 03.02.1999, PW.1 contract was cancelled. Three months bills were not paid to him. As per Ex.P3 - statement recorded under Section 161 of Cr.P.C., PW.1 stated that he has submitted bill for Rs.84,040/- for the month of January, 1999 and submitted to the Accused Officer on the evening of 03.02.1999 at his office. The Accused Officer refused to receive the same and demanded an amount of Rs.5,000/- to receive the bills and process the same. PW.1 was not interested to pay the said amount to the Accused Officer and, therefore, approached the ACB Officers. Whereas, in his deposition, PW.1 deposed that his contract was cancelled on 03.02.1999 and, therefore, he went to the Assistant Medical and Health Officer of MCH along with labourers and enquired about non-sanction of the bills. Since he has completely resiled from his statement under Section 161 of Cr.P.C., PW.1 was declared hostile by the prosecution. PW.1 was cross-examined by the learned Special Public Prosecutor after obtaining permission from the trial Court. 29. During cross-examination, he has admitted about Ex.P14 statement and his Ex.P1 - Signature. He has also admitted that he gave statement to DSP, ACB (PW.8) stating that the Accused Officer has demanded bribe of Rs.5,000/- by which time January, 1999 bill was pending. Ex.P2 is the bill for the month of January, 1999 along with its enclosures. 29. During cross-examination, he has admitted about Ex.P14 statement and his Ex.P1 - Signature. He has also admitted that he gave statement to DSP, ACB (PW.8) stating that the Accused Officer has demanded bribe of Rs.5,000/- by which time January, 1999 bill was pending. Ex.P2 is the bill for the month of January, 1999 along with its enclosures. He has further admitted that when he approached, the Accused Officer did not receive Ex.P2 bill. While PW.1 and PW.2 - Supervisor of PW.1, were supervising the work at Dattatreya Nagar, on 05.02.1999 at about 11.00 a.m., the Accused Officer went there. He has admitted that he gave statement to DSP, ACB on 05.02.1999 at about 11.15 a.m. and he has stated to him that on 05.02.1999 while he was at Dattatreya Nagar Colony along with PW.2, the Accused Officer came there and PW.1 requested the Accused Officer to process the bill pertaining to the month of January, 1999, for which the Accused Officer demanded an amount of Rs.5,000/- towards bribe for processing the said bill. He has further admitted that DSP asked him to come with the said amount of Rs.5,000/- accompanied by PW.2 and accordingly at 2.00 p.m. on 05.02.1999, PW.1 went to the office of the DSP, ACB accompanied by PW.2 with proposed bribe amount where he was introduced to two mediators. He has also admitted that the mediators gone through the contents of his statement recorded by the DSP, cross-verified with him and, thereafter he produced Rs.5,000/- to the DSP, ACB, which was given to one of the mediators. 30. PW.1 further admitted that the DSP instructed him to pay the said amount to the Accused Officer only on his demand but not otherwise and to relay signal by wiping out his face with hand kerchief in case of the Accused Officer demands and accepts the money from him. The DSP also instructed PW.2 to accompany him to watch the transaction. PW.1, PW.2, two mediators, DSP and his staff left the office of DSP to go the office of the Accused Officer situated at Gudimalkapur. He has further admitted that he, PW.2 went into the office of the Accused Officer, when the Accused Officer went inside the bath room in his office room, PW.1 kept the said amount of Rs.5,000/- on the table of the Accused Officer. He has further admitted that he, PW.2 went into the office of the Accused Officer, when the Accused Officer went inside the bath room in his office room, PW.1 kept the said amount of Rs.5,000/- on the table of the Accused Officer. Since the fan was running, on account of air, anticipating that the amount would fall down on the ground, PW.1 placed the currency notes in the table draw of the Accused Officer. PW.1 was declared hostile since he was resiled from his statement recorded under Section 161 of Cr.P.C. 31. PW.2, accompanying witness, deposed about going to ACB Office on 05.02.1999 along with PW.1. During cross-examination, he has categorically admitted that on 05.02.1999, DSP, ACB called him into the office of the Accused Officer, recorded his version in the presence of mediators. 32. PW.3, another mediator to the trap, also deposed about the trap proceedings including demand of Rs.5,000/- by the Accused Officer from PW.1 as stated by PW.1, accompanying the trap party to the office of the Accused Officer. He has further deposed about PW.1 handing over the said amount of Rs.5,000/- to the DSP, ACB, constable applying phenolphthalein power to the said currency notes and also preparation of pre and post trap proceedings. The said depositions of PWs.1, 2 and 3 are supported by the deposition of PW.8 - DSP, ACB. 33. From the above said depositions and also on perusal of Ex.P14 - statement of PW.1 and Ex.P11 - FIR, PW.1 set the law in motion. Though he was declared hostile, his deposition to the extent relevant to the prosecution can be relied upon. PW.1 and PW.2 deposed about approaching ACB Officials complaining them about the demand of Rs.5,000/- towards illegal gratification by the Accused Officer. PW.1 also handed over the said amount of Rs.5,000/- to PW.8, who in turn instructed the constable to apply phenolphthalein powder to the said currency notes. After preparation of pre-trap proceedings, they have proceeded to the office of the Accused Officer. PW.1 entered into the office of the Accused Officer, kept the said amount initially on the table and thereafter in the right side table drawer of the Accused Officer. The said depositions are relevant to the prosecution to prove the demand. They can be relied upon. PW.1 entered into the office of the Accused Officer, kept the said amount initially on the table and thereafter in the right side table drawer of the Accused Officer. The said depositions are relevant to the prosecution to prove the demand. They can be relied upon. Thus, the prosecution has proved the demand of Rs.5,000/- by the Accused Officer from PW.1 to process the bills and get it sanctioned. 34. The defence taken by the Accused Officer is that PW.1 is having animosity with him. Due to the said animosity, PW.1 implicated the Accused Officer in a false case in collusion with the ACB Officials. PW.1 kept the said amount of Rs.5,000/- in the right side table draw of the Accused Officer when the Accused Officer went into the toilet attached to his office room. When DSP requested him to take out the tainted currency notes, the Accused Officer took the tainted currency notes from his right side table drawer. There is no explanation, much less plausible explanation offered by the Accused Officer as to the knowledge of placing the said tainted currency notes in his right side table drawer. There is no spot explanation offered by the Accused Officer during post-trap proceedings. Of course, he is having right to remain silence, but at the same time, he has to prove the said defence with cogent evidence before the trial Court during trial. The Accused Officer failed to prove the same. On the other hand, the prosecution has proved the guilt of the Accused Officer beyond reasonable doubt by producing reliable witnesses and cogent evidence. Therefore, the defence theory of the Accused Officer is highly improbable. Thus, the prosecution has proved the demand and acceptance of the illegal gratification by the Accused Officer from PW.1 for doing the said official favour. 35. The trial Court has rightly held that the evidence of hostile witnesses need not be rejected in toto and the Court can rely on such portions of evidence if found true. The trial Court also rightly held that the Accused Officer has won over PWs.1 and 2 and pressed them into service by taking advantage of five years of trap from the date of trap till the date of deposition of PWs.1 and 2 before the trial Court. The trial Court also rightly held that the Accused Officer has won over PWs.1 and 2 and pressed them into service by taking advantage of five years of trap from the date of trap till the date of deposition of PWs.1 and 2 before the trial Court. The trial Court rightly held that there was official favour that was pending with the Accused Officer at the relevant point of time and the Accused Officer has demanded and accepted the illegal gratification of Rs.5,000/- from PW.1 to do the said official favour of processing the bills. Thus, the trial Court has rightly drawn the presumption under Section 20 of the Act. This Court is satisfied with the reasons given by the trial Court in the impugned judgment. 36. Accordingly, the present Criminal Appeal is dismissed confirming the conviction and sentences recorded by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in Calendar Case No.18 of 2000, vide judgment dated 30.11.2006 against the deceased 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. As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.