U. Durga Prasad Rao, J. - (1.) AGGRIEVED by the judgment dated 14.02.2005 in C.C.No.62 of 2000 passed by the learned Special Judge for ACB cases, Visakhapatnam acquitting the Accused Officer (AO) of the charges under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short PC Act) the ACB preferred the instant Criminal Appeal.
(2.) THE factual matrix of the case is thus: a) AO Kandregula Raghuram worked as Agricultural Officer (Technical) in the office of Joint Director (Agriculture), Visakhapatnam during 1995. According to prosecution, Noolu Venkata Gowreswara Rao complainant (PW1), the proprietor of M/s. N.G.S.Pharmacy, Visakhapatnam who was running a medical shop submitted an application dated 23.12.1994 to the Joint Director (Agriculture), Government of Andhra Pradesh, Visakhapatnam for sale of pesticides manufactured by M/s. Sujanil Chemo Industries, Pune and Pest Control of India, Bombay for bugs and mosquitoes by remitting a sum of 300/ - towards licence fee. The AO has recommended for granting the said licence on 06.01.1995 and note was put up by the concerned and submitted to the Joint Director on 12.02.1995 for necessary approval and the same was approved on 18.02.1995. Accordingly, licence bearing No. 231/94 -95 was issued by the Joint Director authorising PW1 to sell the products of Pest Control of India Limited, Bombay only. b) Then PW1 visited the office of Joint Director and met the AO and asked him as to why permission was given only to sell the products of one company when he applied for two companies. AO informed PW1 that principal certificate was not in force and it was expired and therefore it was not possible to issue licence for the sale of products of Sujanil Chemo Industries. Then PW1 showed the principal certificate to AO by informing that it was not expired and inspite of that the AO did not hear PW1. c) PW1 met the AO on several occasions but of no use. Therefore, on 01.09.1995 PW1 addressed a letter to the Joint Director (Agriculture), Visakhapatnam requesting him to add in his licence permission to sell the products of Sujanil Chemo Industries and obtained acknowledgement. Then AO asked PW1 to address a letter to Sujanil Chemo Industries requesting it to send principal certificate to the office of Director of Agriculture, Andhra Pradesh, Hyderabad. At that time PW1 told AO that it would take time and asked him as to how to sell the products in the meanwhile. For that AO stated to PW1 that the matter relating to the correspondence for the licence was in progress and there would be no problem for sale of those products and if at all there was any check, he (AO) only has to book the case and therefore in order to avoid further problems, he demanded Rs.5,000/ - as bribe. When PW1 expressed his inability to pay the said amount, AO reduced it to Rs.1,000/ - and demanded him to pay the same within ten or fifteen days. d) On 21.09.1995 at about 1.00 PM AO visited the shop of PW1 and asked him as to why the demanded amount was not brought and paid and threatened to make a visit along with Vigilance Officer and seize the stocks and book a case by taking samples of various products under sale unless the demanded amount was paid before 25.09.1995. e) Unwilling to pay bribe, PW1 submitted Ex.P1complaint to DSP, ACB, Visakhapatnam (PW4) on 22.09.1995 who registered the same as a case in Cr.No.7/RC -SLR/95 and successfully laid a trap against AO on 25.09.1995. On completion of investigation charge sheet was laid against AO. f) On appearance of the AO charges under Sections 7 and 13(2) r/w 13(1)(d) of PC Act were framed against him and conducted trial. g) During trial, PWs.1 to 4 were examined and Exs.P1 to P21 were marked and MOs.1 to 9 were exhibited on behalf of prosecution. DW.1 was examined and Exs.D1 to D4 were marked on behalf of defence. h) The trial Court on appreciation of evidence held that prosecution failed to prove the vital ingredients such as demand and acceptance of bribe and accordingly acquitted the AO. Hence, the appeal. Heard arguments of Sri M.B.Thimma Reddy, learned Special Public Prosecutor (Spl.P.P) for ACB and Sri A.Hari Prasad Reddy, learned counsel for respondent/AO.
(3.) IMPUGNING the judgment, learned Spl.P.P argued that in this case the evidence of PW.1 coupled with the corroborating evidence of PWs.2 to 4 would clearly show that the AO demanded and accepted bribe of Rs.1000/ - from PW1 to do an official favour of allowing him to sell the pesticide product of M/s.Sujanil Chemico Industries, Pune without licence. Expatiating it, he argued that on 01.09.1995 when PW.1 went to the office of the Joint Director (Agriculture), Visakhapatnam and submitted a representation (Ex.P.9) that licence was issued to him to sell pesticides of only one company i.e., Pest Control (India) Limited, Bombay, though he applied for licence for two companies i.e., Pest Control (India) Limited, Bombay and M/s. Sujanil Chemico Industries Limited, Pune and requested to issue licence for the other company also and in that context when he met the AO who is the Agricultural Officer, the AO informed him that the licence was not issued by the Joint Director because the Principal Certificate of M/s. Sujanil Chemico Industries Limited, Pune was expired and asked him to address a letter to M/s. Sujanil Chemico Industries Limited, Pune requesting to send their Principal Certificate to the office of Director, Agriculture, A.P, Hyderabad. On that when PW1 represented to him that this would take long time, then AO informed him that since the matter was under correspondence with Sujanil company, there would be no problem for him to sell the products of that company pending issuance of licence and since the AO himself has to check the shop of PW1, he would not book any case against him in this regard and for that purpose initially he demanded Rs.5000/ - as bribe and on the request of PW1, reduced the same to Rs.1000/ -. Learned Spl.P.P further argued that on the date of trap i.e., on 25.09.1995 also AO demanded the said amount and accepted from PW1 and the tainted bribe amount of Rs.1000/ - was recovered from rexine bag of AO (MO5) and chemical test conducted on his hands also proved positive which implies that he demanded and accepted the bribe amount. In the light of these facts, the presumption under section 20 of P.C. Act would squarely follow against the AO. He further argued that the defence explanation in this regard is quite a misfit to the facts and circumstances of the case and hence the trial Court ought not to have accepted the same. He argued that during the trap, the AO no doubt has offered explanation as if PW.1 paid him Rs.1000/ - towards challans licence fees and he too received the same for the said purpose but not as bribe. However this explanation, learned Spl.P.P. argued, is quite untenable because by the date of trap and even by the date of demand no challan fee for pesticide licence was due from PW1 as he already paid challan fee of Rs.300/ - vide Ex.P.4. As per the evidence of PW.3, one licence fee of Rs.300/ - is sufficient to issue licence for any number of companies and as PW.1 already paid licence fee under Ex.P.4, there was no need for him to pay any amount for obtaining licence for selling the pesticide of M/s. Sujanil Chemico Industries Limited, Pune. Therefore, the explanation of AO that PW.1 paid him Rs.1000/ - towards licence fee and he received the same for that purpose is unbelievable. He further argued that even assuming that PW.1 was again required to pay licence fee for selling the products of M/s. Sujanil Chemico Industries Limited, Pune, he would have to pay only Rs.300/ - for that purpose but not Rs.1000/ -. Therefore, there was no necessity for PW.1 to pay Rs.1000/ - to AO. However, the amount received by AO was Rs.1000/ - which implies that the said Rs.1000/ - is only bribe amount but not the licence fee. Therefore, the explanation is not correct. a) Learned Spl.P.P further argued that knowing that his defence plea was fallacious and would not fit into the facts of the case due to the huge difference between the licence fee amount and amount received by him, the AO came up with a different defence plea of course with the tacit connivance of PW.1 during his cross - examination. The AO came up with another defence version that apart from applying for licence to sell the pesticides, PW.1 also applied for licence to sell Agro products including fertilizers during the relevant period (vide Ex.D.4) and the licence fee for that purpose is Rs.1000/ - and on the date of trap PW.1 paid him the said licence fee of Rs.1000/ - for fertilizer licence and he accepted the same for that purpose and not as bribe. Learned Spl.P.P. argued that this argument is only an afterthought and Ex.D.4 application and concerned application form were subsequently fabricated which can be inferred from the correction of the date 23.08.1995 appearing in the application form. Therefore, the trial court ought not to have believed the defence theory put forth by AO and ought to have convicted the AO holding that he failed to rebut the presumption under Section 20 of P.C Act. He thus prayed to allow the appeal.;