IN THE COURT OF SPECIAL JUDGE FOR TRAIL OF SPE & ACB CASES,
VISAKHAPATNAM
Present: Sri A. Satyanand, Spl. Judge for Trail of SPE & ACB Cases – cum - III Additional District Judge, Visakhapatnam. Thursday, the 12th day of March 2020.
C.C.6/2015
Between: State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam … Complainant And: Medapalli Chitti Tirupathi Venkata Satya Suguneswara Rao Patnaik S/o late Rama Rao, 50 years, Panchayat Secretary & Executive Officer, K. Kotapadu Panchayat, K. Kotapadu Village & Mandal,
Visakhapatnam District. ... Accused Officer
This case came before me on 24.02.2020 for final hearing in the presence of Sri K. Ramakrishna, Special Public Prosecutor for the
Complainant-State and Sri N. V. V. Prasad and Sri N. Sankara Rao, Advocates
for the Accused. Upon hearing arguments, perusing the record and having
considered the matter till this day, this Court has delivered the following:
JUDGMENT
1.The state through the Inspector of Police, ACB, Visakhapatnam has filed charge sheet against the Accused who worked as Panchayat
Secretary & Executive Officer of K. Kotapadu Panchayat of K. Kotapadu
Village & Mandal in Visakhapatnam District and as such falls under category of Public Servant as defined under Sec. 2 (c) of Prevention of Corruption Act, 1988 for the offences punishable under Secs.7 and 13 (2) r/w 13 (1) (d) of
Prevention of Corruption Act, 1988 in Cr. No.05/RCT/VSP/2013.
2.As narrated in charge sheet, the case of the prosecution is as follows:
Defacto complainant Geddam Venkata Rao has approached the accused for death certificate of his son Geddam Kameswara Rao to claim
Insurance amount and enquired about the procedure for obtaining death certificate. Then the accused asked Geddam Venkata Rao to put an application to enter the information in the death register and later he will 2 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
issue death certificate. Accordingly, he submitted an application to the accused. After making the defacto complainant to go around his office, finally on 21.02.2013, the accused demanded him for Rs.20,000/- as bribe for issuance of death certificate and later reduced the same to Rs.15,000/- stating that he will come and receive at the house of Geddam Venkata Rao.
As he is not willing to pay bribe, the said Geddam Venkata Rao presented report to DSP, ACB who registered a case and made arrangements for laying trap. On 25.02.2013 at 10.40 p.m., the DSP, ACB has successfully laid trap at the house of the defacto complainant and arrested the accused and recovered the tainted amount. Later the trap amount of Rs.15,000/- was reimbursed to the Complainant by ACB on 24.07.2013. After obtaining sanction for prosecution of the accused from the Government of AP,
Inspector of ACB has filed charge sheet.
3.Basing on the averments of the charge sheet, the then Special
Judge, took cognizance of the offence under Sec.7 and 13 (1) (d) r/w 13 (2)
of Prevention of Corruption Act, 1988 and issued summons to the accused.
After appearance of the accused, on hearing both sides, he framed charges under Secs.7 and 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 read over and explained the same to the accused and questioned him under section 240 Criminal Procedure Code for which, he pleaded not guilty and claimed to be tried.
4.During the trial, prosecution has examined 9 witnesses and got exhibits Exs P.1 to P.14 and Mos 1 to 8 marked. After closure of the prosecution side evidence, the accused was examined under Sec.313 of
Criminal Procedure Code for the incriminating material available against him in the evidence let in by the prosecution, which the accused denied and filed written statement. In support of his defence, the accused has summoned and examined P. Ananda Rao, Panchayat secretary of
K.Kotapadu as DW.1.
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5.Heard both sides. The Special Public Prosecutor filed written arguments as well.
5.1)The learned Spl. Public Prosecutor has contended that the prosecution with the evidence of PWs.1 to 9 and Exs.P.1 to P.14 and Mos 1 to 8 has proved that the accused has demanded Rs.15,000/- as bribe for issuance of death certificate of son of the defacto complainant Geddam
Venkata Rao and accepted the same on 25.02.2013 at the house of the complainant and was caught with the tainted amount and that the accused though admitted receipt of amount, contended that it was paid towards house tax, but did not produce any evidence and failed to rebut the presumption under sec.20 of Prevention of Corruption Act, 1988 and hence the accused shall be held guilty of the offences under Secs. 7 and 13 (1) (d) of Prevention of
Corruption Act, 1988. In support of his contentions, the learned special Public
Prosecutor has relied on the following decisions:
1) Ramkishan Singh Vs. Harmit Kaur and Anr. (AIR 1972 SC 468),
2) George and Others Vs. State of Kerala (1998) 4 SCC 605 ),
3) V. A. Abraham Vs. Superintendent of Police (1988 (Crl.LJ) 1144),
4) State of Uttar Pradesh Vs. Zakaullah (1988 (1) SCC 557) ,
5) State of Andhra Pradesh Vs. R. Jeevaratnam (2004 (3) Crimes 210 (SC)) and
6) M. Narasinga Rao Vs. State of Andhra Pradesh (2001 (Crl.LJ) 515), 5.2)The counsel for the accused by relying on the decision in
Gundappa Vs. State, represented by Inspector of Police, Hyderabad (2015 (3) ALT (Crl.) 464 (AP)) contended that as the accused gave information to police about suspicious death of defacto complainant’s son, he bore grudge against him and when he demanded the defacto complainant for payment of house tax, he implicated the accused in this case and that the accused never demanded and accepted bribe and that no record was seized from him and that no official favour of the defacto complainant was pending with the accused at the time of alleged trap and that the sanction is not valid and hence, the accused is entitled for acquittal.
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6.Basing on the above contentions of both the counsel, the following points arose for determination.
1) Whether there is valid under Sec.7 and 13 (1) (d) of Prevention of Corruption Act, 1988 sanction for prosecution of the accused?
2) Whether the accused being a public servant, demanded and accepted Rs.15,000/- on 25.02.2013 as gratification other than legal remuneration from Geddam Venkata Rao for issuance of death certificate of his son?
3) Whether the accused has misconducted himself as public servant by obtaining pecuniary advantage by corrupt or illegal means?
4) Whether the prosecution has proved the guilt of the accused for the charges under Sec. 7 and 13 (1) (d) of Prevention of Corruption Act, 1988 beyond reasonable doubt?
5) To what result?
7.POINT. 1:
7.1)In this case, there is no dispute with regard to the fact that the accused was a public servant as was working as Panchayat Secretary by the date of trap on 25.02.2013.
7.2)As per Sec.19 of Prevention of Corruption Act, 1988, no Court shall take cognizance of offences punishable under Secs. 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction of Central Government if the employee is employed in connection with the affairs of the Union and by the State Government if he is employed in connection with the affairs of the State and in any other case by the authority competent to remove him from his office.
7.3)According to the prosecution, the State Government has issued
Sanction proceedings as G.O.Ms.No.15, dt.12.02.2015 to prosecute the accused for the offence under Secs. 7 and 13 (1) (d) of Prevention of
Corruption Act, 1988. According to the accused, as per the evidence on record the Minister of Panchayat Raj is competent to remove the accused with the cadre of Panchayat Secretary but, the Minister of Panchayat Raj did not pass any order and hence, GO issued by the Government doesn’t amount to valid sanction, therefore, the cognizance taken against the 5 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
accused is bad in law and as a consequence of it, the entire trial has been vitiated.
7.4)To prove that the Government of AP has accorded sanction for the prosecution of the accused, the prosecution has examined Section
Officer in AP Secretariat G.V.V.Satyanarayana as PW.5. He deposed that he can identify the signature of Dr. K. S. Jawahar Reddy, the then Secretary to the Government as he worked under him and that the signature on Ex.P13
G.O.Ms.No.15, dt.12.02.2015 belongs to Dr. K. S. Jawahar Reddy and that their section has received Preliminary report on 11.03.2013, draft final report and model sanction order on 06.11.2014 and the entire material was placed before the then Principal Secretary to Government along with office note and it was approved and was sent to Law Department which accepted the same and sent back to their section and that the entire material along with note file placed before the Secretary who verified the same and approved it on 10.02.2015 and signed Ex.P.13 G.O on 12.02.2015 according sanction for prosecution of accused.
7.5)Inspector M. V. Ramana Murthy who filed charge sheet in this case as PW.9 deposed that he took up investigation from E. Jangaiah,
Inspector of Police and recorded statements of LW.9 S. Gopala Rao, LW.10 G.
Madhu Kumar and sent final report to DG, ACB along with draft charge sheet and filed charge sheet after receipt of Ex.P13 sanction orders.
7.6)In Central Bureau of Investigation Vs. Ashok Kumar Agarwal (2015 (1) Supreme Court Cases (Cri.) 344) Apex court while dealing with sanction for prosecution held that the prosecution must send the entire relevant record including FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and the material which may tilt balance in favour of the accused basing on which the competent authority may refuse sanction to the sanctioning authority and the sanctioning authority has to do complete and conscious scrutiny of whole record by applying its mind before granting sanction and that the power of 6 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
sanction is to be exercised strictly keeping the public interest in mind and protection available to the accused and that the sanction should make it evident that the authority had aware of all relevant facts/materials and had applied its mind to all the relevant material and that the prosecution has to establish and satisfy the Court by leading evidence that the entire relevant facts had been placed before the Sanctioning authority.
7.7)In the case on hand, during his evidence PW.5 has clearly deposed that the entire material placed before the then Principal Secretary to Government, and he approved the same and the said file was sent to
Law Department which has approved it and thereafter the same along with note file was placed before the Secretary to Government, who verified it and approved and signed on Ex.P13 according sanction for prosecution of accused. Perusal of Ex.P13 shows that the entire material i.e., copy of FIR,
Mediators report I to III, final report of DG, ACB was placed before the
Government who is competent to remove the accused and on consideration of the same, decided that accused should be prosecuted and thereby in exercise of powers conferred under (b) of sub section (1) of Sec.19 of
Prevention of Corruption Act, 1988 accorded sanction.
7.8)In fact, the accused did not contend that the Government has not applied it’s mind before granting sanction under Ex.P13 GO. It was simply suggested to PW.5 that he cannot identify the signature of the then
Secretary Dr. K. S. Jawahar Reddy and it was denied by him unequivocally.
No motive was attributed to PW.5 for falsely identifying the signature of Dr.
K.S.Jawahar Reddy on Ex.P13 and no evidence is brought on record to show that the sanction accorded under Ex.P13 is not valid. As PW.5 is a public servant and has no enmity with the accused, after considering his evidence and Ex.P3, I have no hesitation to conclude that Ex.P13 GO under which the
Government has accorded sanction to prosecute the accused is valid.
Accordingly, this point is answered in favour of the prosecution.
7 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
8.POINTS 2 TO 4:
8.1)As all the above points are interrelated and interdependent, they are being dealt in common to avoid repetition and for better appreciation of the respective contentions of the prosecution and accused.
8.2)Ina criminal case, it is the duty of the prosecution to prove its case beyond reasonable doubt. Even if the burden is shifted to the accused basing on presumptions, the accused can establish his case on preponderance of probabilities as a criminal trial starts with presumption that the accused is innocent.
8.3)According to the prosecution, the defacto complainant Geddam
Venkata Rao has approached the accused for death certificate of his deceased son Kameswara Rao to claim insurance amount and was asked to put up application to enter the date of death of his son and accordingly, the defacto complainant submitted application on 31.01.2013 in Panchayat
Office, K. Kotapadu and when he enquired the accused for death certificate of his son, he demanded Rs.20,000/- as bribe and reduced the same to
Rs.15,000/- stating that he would go and receive the same at the house of the defacto complainant and that on the report given by the said Geddam
Venkata Rao, DSP ACB registered case, laid trap, caught the accused and recovered the tainted amount. According to the accused he went to the house of defacto complainant’s house to collect the arrears of house tax and received the same, but he never demanded for bribe from the accused and that due to grudge defacto complainant implicated in the case.
8.4)To prove the demand for bribe, giving report to DSP, ACB, pre trap proceedings and demand and acceptance of bribe by accused, the prosecution has examined the defacto complainant/LW.1 Geddam Venkata
Rao as PW.1. To prove the pre and post trap proceedings one of the mediators to Pilli Pothuraju was examined as PW.2. The then MPDO Behara
Venkata Satyanarayana, the then Tahsildar K. Padma Latha, were examined to prove the procedure for issuance of death certificate as PWs.3 and 4 8 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
respectively. Trap Laying Officer N. Venkateswara Rao, DSP, ACB and
Inspectors of Police S. Raghava Rao, E. Jagangaiah were examined PWs 6 to 8 respectively.
8.5)PW.1 Geddam Venkata Rao has deposed about death of his second son Kameswara Rao, his approaching the accused for death certificate and submitting application for entering the death of his son, his meeting accused to inquire about death certificate of his son, demand of accused for bribe of Rs.20,000/- it’s reduction to Rs.15,000/-, his presenting report to ACB. He identified the photo copy of his application as Ex.P1, his report as Ex.P2 and signature on Ex.P3 statement of his sons and wife was recorded by AO.
8.6)He has further deposed that he presented Ex.P2 on 24.02.2013 at 11.30 a.m., and asserted the contents as true and on the next day went to ACB office along with the proposed bribe of Rs.15,000/- at 5.30 a.m., as asked by DSP and was introduced to the mediators and staff and on being asked by the mediators he informed that the contents of his report are true, and handed over the proposed bribe to the mediators who verified the numbers and after making him emptied his shirt pocket, Inspector Ramana
Babu applied colour to the amount and kept it in his shirt pocket and the
DSP instructed him not to touch the same till AO demanded the bribe and if
AO demanded and accepted the same to relay signal to Inspector Raghava
Rao and that they all started at 8.45 a.m., and reached K. Kotapadu Vijaya
Talkies, and he got down and went to his house and that after half an hour,
AO knocked the door of his house and on opening the door AO demanded him to give bribe, and then he picked up the amount and gave it to the accused who counted it and kept in his right side pant pocket and assured that the death certificate will be issued soon, and then he went out and gave signal and then DSP, Inspector, mediators and staff went into his house and two and half hours later, DSP called him and confronted the version of the accused and enquired him in the presence of mediators, and 9 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
later his statement under Sec. 164 Cr.P.C., statement was recorded by
Railway Magistrate on which he put his Ex.P4 signature.
8.7)PW.2 Pilli Pothuraju has deposed that he and Senior Assistant P.
Sankara Rao on the instructions of the DIG, Registration & Stamps to assist
ACB Officials, went to ACB Office on 25.02.2013 at 5.40 a.m., as asked by
DSP on the previous day and the DSP, ACB introduced them to PW.1 and staff vice versa and gave copy of FIR and complaint asking them to verify the genuineness from PW.1, and that on their enquiry PW.1 asserted his report contents are true, and then they attested Ex.P5 copy of FIR and that ,
PW.1 handed over Rs.15,000/- to the other Mediator P. Sankara Rao who noted the denomination and serial numbers of that amount in pre trap proceedings and that after sending PW.1 away, the DSP got demonstrated the chemical test, got applied phenolphthalein powder to Rs.15,000/-, called
PW.1 and after getting his shirt pocket emptied, kept tainted amount in it through PC and instructed PW.1 not touch the bribe amount till the bribe monger demanded and accepted and if he accepts to give signal to
Inspector and asked the Inspector Raghava Rao to closely follow PW.1 and relay signal if received from PW.1 and that after rinsing their fingers in colourless solution, the DSP after asking that constable to remain in the office, collected MOs 1 and 2 samples of Sodium Carbonate and phenolphthalein powders used in pre trap proceedings and took charge of
Sodium carbonate powder for further use, and to that effect Ex.P6 pre trap proceedings were prepared by P. Sankara Rao to his dictation.
8.8)PW.2 further deposed that they all reached Vijaya Talkies, K.
Kotapadu at 10.00 a.m., and the DSP, ACB reiterated his earlier instructions to PW.1 who along with and Inspector Raghava Rao proceeded to his house and they took vantage position near road at about 70 yards distance from that house and that at 10.45 a.m., on receipt of signal, they all went to the house of PW.1 and found him near the main door, and after asking PW.1 to wait there, they all went into the house and noticed the accused in the sofa 10 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
in the house and the DSP conducted chemical test to the fingers of both hands of AO which gave positive result and that on being enquired about the money, AO picked up MO.3 money of Rs.15,000/- from his right pant pocket whose numbers tallied with the numbers mentioned in Ex.P6 pre trap proceedings, and then the DSP conducted chemical test to the inner linings of right side pant pocket of AO which gave positive result and those solutions were collected as MO.4, MO.5 and MO.6 and that the DSP seized
MO.7 pant of the accused and collected MO.8 Sample from Sodium
Carbonate powder used in post trap proceedings and that the DSP incorporated the statement of AO, called PW.1 and confronted the same, examined the wife and neighbours of PW.1 and to that effect Ex.P7 post trap proceedings were prepared and served on the accused and that the
DSP got prepared Ex.P8 Rough Sketch of the scene which they attested.
8.9)PW.2 further deposed that they all including AO went to K.
Kotapadu Panchayat Office and there the accused handed over Ex.P9 made up file including Exs P.1 and P.3 and the DSP seized it along with Ex.P10
Attendance Register under the cover of Ex.P11 Mediators Reort and that there the DSP questioned accused in the presence of MPDO.
8.10) PW.3 Behara Venkata Satyanarayana deposed that while he was working as MPDO of K.Kotapadu from 04.07.2012 to 06.11.2014, the accused worked as Panchayat Secretary of K. Kotapadu and that on 25.02.2013 DSP called him to Panchayat Office, K. Kotapadu and enquired the procedure to be followed for issuance of death certificate, and he narrated that if a person applies for death certificate within 21 days,
Panchayat Secretary has to issue the same without collecting fee and thereafter within 30 days, the Secretary has to issue death certificate by collecting late fee and beyond 30 days and within one year the applicant has to approach the Tahsildar with Application and non-availability certificate from Panchayat Secretary and after one year, the applicant has to approach RDO by paying late fee.
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8.11) PW.4 K. Padma Latha has deposed that while she was working as Tahsildar of K. Kotapadu, on 31.01.2013 the Junior Assistant by name
Satish received original of Ex.P12 letter addressed by the accused and when she telephoned Panchayat Secretary to verify why non-availability certificate was not enclosed, he did not lift the phone and that in the first week of February 2013, she tried to contact MPDO, K. Kotapadu over phone, but he too did not lift the phone and later when she contacted SHO of K.
Kotapadu PS, informed that a crime was registered for the death of
Kameswara Rao on 06.05.2012. She also deposed about the procedure for issuance of death certificate as spoken by PW.3 and further deposed that later on the application of on 07.03.2013 for of death certificate, she got conducted enquiry through Revenue Inspector and VRO and got secured
Non-availability certificate through In charge Panchayat Secretary and issued death certificate to PW.1 in the last week of March 2013.
8.12) PW.6 N. Venkateswara Rao deposed that while he was working as DSP, ACB, Visakhapatnam Range on 24.02.2013, he received Ex.P2 report from PW.1 and entrusted the same to Inspector S. Raghava Rao for verification of antecedents and asked him to come on the next day at 6.00 am along with the proposed bribe amount and sent requisition to Deputy
Inspector General of Registration and Stamps to depute his employees to assist him and that on 25.02.2013 at 6.00 am, he received verification report from Raghava Raoi and then after obtaining oral permission from DG,
ACB, he registered Ex.P2 as Ex.P14 FIR and sent it to the Court.
8.13) He further deposed that on 25.02.2013 at 6.15 a.m., after introducing mediators to PW.1 and vice versa and gave Ex.P5 to the mediators for verification and that PW.1 handed over the proposed bribe to mediator P. Sankara Rao and then the mediators noted the serial numbers and denomination in pre trap proceedings and that after sending PW.1 outside, he got demonstrated the chemical test to the mediators and applied phenolphthalein powder to the bribe amount and called PW.1 and 12 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
after getting his pocket emptied kept the said amount in the shirt pocket of
PW.1 instructing him not to touch till the bribe monger demands and in case of acceptance to come and give signal to Inspector Raghava Rao and collected MOs 1 and 2 samples of Sodium carbonate and phenolpthalien powders and to that effect Ex.P6 post trap proceedings were prepared.
8.14) PW.6 further deposed that they all left ACB office and reached
Vijaya Talkies, K. Kotapadu at 10.00 am, and they took vantage position at about 70 yards away from the house of PW.1 and PW.1 and Inspector
Raghava Rao proceeded to the house of PW.1 and that at 10.45 a.m., on receiving signal from Inspector, they went to the house of PW.1 and found
PW.1 near main door and that after asking PW.1 to wait there, they went inside and noticed accused in Sofa and after disclosing his identity, he ascertained the identity of AO and conducted chemical test to his both hands fingers and got positive result and that on his enquiry about money, accused picked up MO.3 tainted amount from his right pant pocket, and he seized the same as the numbers tallied with the numbers noted in pre trap proceedings, and then he conducted chemical test to the inner linings of the right side pant pocket and got positive result, and then he seized MO.7 pant and collected MO.8 sample from Sodium Carbonate powder used in post trap proceedings, and incorporated the statement of accused and called
PW.1 and got recorded his version, and examined wife and neighbours of
PW.1 and incorporated their versions in Ex.P7 and served copy of it on the accused, and got prepared Ex.P8 rough sketch and that they all went to
Panchayat Office where the accused produced Ex.P9 Made up file which he seized along with Ex.P10 Attendance Register, called MPDO, enquired him and incorporated his version regarding the procedure for issuance of death certificate in Ex.P11 and then arrested the accused and later produced him
before the Court and handed over the case file to Inspector E. Jangaiah.
8.15) PW.7 S. Raghava Rao, Inspector of Police deposed about receipt of Ex.P2 for verification from PW.6 and causing enquiry and found the 13 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
complaint is correct and endorsed the same on the back of Ex.P2 and his participation in pre and post trap proceedings. He identified his signatures on Exs P.6, P.7 and P.11.
8.16) PW.8 E. Jangaiah, Inspector of Police has deposed that on 25.02.2013 he accompanied PW.6 at the time of pre and post trap proceedings under Exs P.6, P.7 and P.11 and took up further investigation from PW.6 and got recorded PW.1’s statement under Sec.164 Cr.P.C., by the
II Metropolitan Magistrate for Railways, Visakhapatnam and recorded statements of LW.2 G. Surya Kumari, LW.5 M. Satyanarayana, LW.6 M.
Venkata Rao, PW.3, PW.4 and called for explanation of the accused and later as he was transferred, Inspector M. V. Ramana Murthy took up further investigation.
8.17) In Ram Kishan vs. Harmit Kaur , (AIR 1972 SC 468)and in
George and Others Vs. State of Kerala (1998) 4 SCC 605 ), their Lordships of
Hon'ble Supreme Court have held that a statement under Section 164
Cr.P.C. is not a substantive evidence and It can be used only to corroborate the statement of the witness or to contradict him. In V. A. Abraham Vs.
Superintendent of Police (1988 (Crl.LJ) 1144) Kerala High Court at para 16 held as follows:
Previous statements contained in a pre-trap or post-trap mahazar in a corruption case do not come within the ambit of "statement made to the police officer" as contemplated in Section 162, Cr.P.C. attracting the prohibition against signature. They are only previous statements which could be legitimately used for corroboration under Section 157 of the Evidence Act. The purpose of such statement is to record things which occur in the presence of the witnesses and which are seen and heard by them and is never intended to convey or impart knowledge to the police officer. The secondary purpose of the recording is to serve as aid memoir to the witnesses when they enter the box as a contemporary record of what they saw and heard. The purpose is not to aid the investigating officer in detecting the offence and offender in order to place him for trial. Such mahazars cannot take the place of substantive evidence, but they merely corroborate the substantive evidence given before court as a previous statement under Section 157 of the Evidence Act. A plan prepared during investigation and 14 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
signed by the maker is not done to evade the provisions of Section 162, Cr.P.C. and it can be used for corroborating his evidence in the box as a contemporaneous record from which he could refresh his memory.
8.18) In State of Uttar Pradesh Vs. Zakaullah (1988 (1) SCC 557) the
Apex Court has observed that the Dy. S.P. who arranged the trap had no interest against the accused but the verve shown by him to bring his trap to a success is no ground to think that he had any animosity against the delinquent officer and the evidence of such witnesses can be acted upon even without, any corroboration. In State of Andhra Pradesh Vs. R.
Jeevaratnam (2004 SCC (Crl.) 1797), where the High court allowed the appeal against conviction holding that there was no proof of demand, the
Hon’ble Apex Court held that High Court was wrong in considering the
evidence of PWs.1 and 2, to the effect, that when the respondent came into the room he was told that PW2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. In M.
Narsinga Rao vs. State of Andhra Pradesh (2001 (1) SCC 691), it was held that where receipt of illegal gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as reward for doing a public duty. In Gundappa Vs. State rep. by Inspector of Police,
Hyderabad (2015 (3) ALT (Crl.) 464 (AP)) where, the defacto complainant died pending trial and PW.1 did not support the prosecution case about demand and acceptance of amount by the accused officer 1 and the accused examined the Commissioner of Municipality to prove Ex.D1 House
Tax Demand Notice served on the defacto complainant, High Court allowed the appeal preferred against conviction, holding that the primary burden will be on the prosecution to establish that the amount was paid as illegal gratification other than legal remuneration and then only the presumption 15 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
under Sec. 20 of Prevention of Corruption Act, 1988 would follow, necessitating the accused to rebut the same by cogent explanation.
8.19) In this case, accused did not dispute his going to the house of
PW.1 and receiving Rs.15,000/- and it’s recovery by the ACB immediately in the house of PW.1. According to the accused, he went there to collect the house tax due from PW.1 and accepted the same and within no time, the
ACB Officials went there and conducted colour test to his hand fingers and arrested him and that no record pertaining to this case was seized from him.
8.20) The accused attributed motive to PW.1 stating that PW.1 has got grudge against him as he reported the suspicious death of PW.1’s son to police who enquired PW.1 in that aspect, he did not attribute any motive to the ACB officials or to PW.2 Mediator or his higher officials i.e., Pws. 3 and 4
MPDO and Tahsildar of K. Kotapadu. There is no dispute about the death of
PW.1’s second son Kameswara Rao on 16.12.2012 by consuming poison.
PW.1 during his cross-examination admitted that the accused’s giving report to police about death of said Kameswara Rao and enquiry by police by confining him in Police Station for couple of days.
8.21) PW.1 stated that it is the duty of the accused to collect house tax and admitted that he did not pay house tax for several years prior to 2013 and that he received demand notice from Panchayat for payment of house tax for 2011 and 2012. He denied the accused’s suggestion that he questioned the accused while he informed the police against him about the death of his son Kameswara Rao and that the accused used to demand him to pay house tax and visit his house and houses of other villagers for collection of house tax. He clearly denied the accused’s suggestion that he paid Rs.15,000/- towards house tax and that the accused asked him to attend at his office to receive the receipt for the said amount and that on that day he called accused to his house on phone to receive the house tax and gave report to police to take revenge.
16 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
8.22) PW.1’s evidence goes to show that in the month of January 2013, when he met the accused for death certificate of his second son, he was asked to put an application to enter date of death and then the death certificate will be issued and that on 30.01.2013 he got prepared original of
Ex.P1 and submitted the same on 31.01.2013 and thereafter the accused recorded Ex.P3 statement and obtained signatures of his sons and wife and when on 21.02.2013, he approached the accused about death certificate, he was demanded for Rs.20,000/- and later the accused reduced it to
Rs.15,000/- stating that he would come to his house on the morning of 25.02.2013 and collect the same and hence, on 24.02.2013 he got prepared
Ex.P2 report through his son Madhukumar and presented the same to ACB and that on their direction, on the next day morning he approached them with the proposed bribe and from there accompanied the trap team and in his house the accused demanded and accepted the tainted amount, and then he relayed signal and the trap party entered into his house and seized the tainted amount.
8.23) PW.2 deposed about their ascertaining the genuineness of contents of Ex.P2, attesting Ex.P5 copy of FIR, Ex.P6 pre trap proceedings, their going to K. Kotapadu, waiting at the house of PW.1 at 70 mtrs away, entering into the house on receiving signal from the Inspector, finding accused in Sofa in the house of PW.1, conducting chemical test to the fingers of Accused which gave positive result, producing MO.3 tainted amount of Rs.15,000/- from pant pocket of accused and positive result of chemical conducted to the inner lining of that pocket, recording of accused’s version about the tainted amount under Ex.P7 post trap proceedings, accused’s taking them to Panchayat Office, his producing
Ex.P9 Made up file containing Exs P.1, P.3 and P.12 and seizure of the Made up file and Ex.P10 Attendance Register under Ex.P11 Mediators Report-III.
8.24) During his cross-examination, PW.2 stated that accused stated
before DSP that PW.1 gave amount to him towards house tax and later he
17 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
retracted the version. The suggestion that Exs P.6, P.7 and P.11 were
dictated by the DSP, ACB and he did not act as mediator and signed those
documents at the office of ACB was denied by him. Accused did not even suggest to PW.1 that PW.2 did not participate in pre and post trap proceedings. No motive was even attributed to PW.2 for speaking falsehood against the accused. PW.2 was the Sub-Registrar at the time of trap and along with Senior Assistant P. Sankara Rao was deputed to by DIG,
Registrations & Stamps, to assist ACB in pre and post trap proceedings. In the absence of any motive for PW.2, his evidence which is consistent with the prosecution version and corroborated by PWs.1 and PW.6 and Exs.P6,
P.7 and P.11 cannot be brushed aside.
8.25) PW.6 Investigation Officer clearly deposed about his registering
Ex.P14 FIR basing on Ex.P2 report of PW.1 after getting the contents and antecedents of the complainant and accused verified through PW.7, pre and post trap proceedings and his proceeding to the Panchayat Office from the house of PW.1, seizure of Ex.P9 Made up file and Ex.P10 Attendance
Register, calling and questioning PW.3 about the procedure for issuance of death certificate. PWs 7 and 8 corroborated the version of PW.1 and PW.6 about pre and post trap proceedings and PW.9 deposed about his filing of charge sheet on receipt of sanction orders.
8.26) As stated above, the accused did not attribute any motive to
ACB officials PWs 6 to 8 to speak falsehood against him or to implicate him basing on the report of PW.1. PWs 6 to 8 are public officers entrusted with duty of catching and prosecution of the persons under Prevention of
Corruption Act, 1988 to prevent corruption by the public servants. Except suggesting that he did not mention the accused’s version that he received the said amount from PW.1 towards arrears of house tax due by him in
Ex.P7 post trap proceedings and laid trap without verifying the case properly, nothing was elicited from PW.6 during his cross-examination. He made arrangements to smear the phenolphthalein powder on the currency 18 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
notes to satisfy that the accused in fact received the bribe but not the currency notes were just thrust into the unwilling officer and conducted test to satisfy that he was proceeding against the real bribe taker. Hence, the evidence of PW.6 and corroborated by Pws.1, 2 and Exs.P6, P7 and P.11 can be acted upon and it can not be doubted.
8.27) The accused contended that no official favour was pending with him by the time of trap and the amount was paid towards arrears of house tax due by PW.1. He summoned one P. Ananda Rao, Junior Assistant, Full
Additional charge of Panchayat Secretary, K. Kotapadu for production of
house tax details. But, he deposed that he could not submit those details as the records were missing in the office. The alleged offence had taken place on 25.02.2013 whereas the accused filed Crl.M.P.158/2019 on 08.02.2019.
DW.1 during his cross-examination stated that he was placed full additional charge consequent on transfer of the then Secretary B. Sarojini Devi in the year 2016, and was working as Junior Assistant in K. Kotapadu from 28.11.2014 till 16.02.2016 and it is his duty to maintain the records of
Panchayat. According to him, his predecessor did not handover the old house tax registers and he complained the same to his Secretary in writing.
He admitted that he did not address any letter to the District Panchayat
Officer about missing of house tax registers and if such letter is addressed, enquiry will be initiated against the Junior Assistant concerned.
8.28) In this case, no record is there to say the amount was due from
PW.1 towards arrears of house tax by the date of trap. It is not comprehensible why the accused went to PW.1’s house to collect house tax without even ascertaining the actual due and without carrying registers and receipt books to pass proper receipt to PW.1 on receiving house tax. Simply because PW.1 has admitted that he was in due of house tax and it is the duty of accused to collect the house tax, it cannot be said that the MO.3 tainted amount received by accused from PW.1 was in fact arrears of house 19 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
tax due from PW.1 that too in the absence of such spontaneous explanation in Ex.P7 post trap proceedings.
8.29) Evidence of PW.4 clearly shows that original of Ex.P12 (Carbon copy containing original endorsement of Junior Assistant) was received by the office of Tahsildar from the accused and though she tried to contact the accused for sending the same without enclosing non-availability certificate in the first week of February 2013, accused did not respond. Perusal of
Ex.P12 shows that it was addressed to the Tahsildar by the accused
Panchayat Secretary seeking orders stating that PW.1 has made application enclosed to it stating that Geddam Kameswara Rao died by consuming pesticide on 16.12.2012 due abdominal pain and already 45 days was over and that application was submitted to Tahsildar and the death was not normal and no medical certificate or FIR was enclosed to the application and the actual reason for death has to be ascertained for entering the said death and hence, necessary orders are required.
8.30) Accused did not deny his signature on Ex.P12. PW.4 during her cross-examination stated that in the first week of February 2013, Ex.P12 was placed before her and she initialed it. While admitting that Ex.P12 did not contain her initial, she added that Ex.P12 letter was received by other party as an acknowledgment from the Junior Assistant of their office by serving it’s original and as such, Ex.P12 did not contain her initial. Perusal of
Ex.P12 shows that the application of PW.1 was enclosed to it and it is a photo copy with original signature of accused. Hence, the original of Ex.P1 cannot be with the accused at the time of seizure of Ex.P9 made up file containing Ex.P1, P.3 and P.12.
8.31) Though PW.1 clearly stated that the accused himself prepared their Ex.P3 statement and obtained signatures of his sons and wife, accused did not deny the same. Ex.P1 shows that it was dt.30.01.2013 and was addressed to the Panchayat Secretary by PW.1 seeking entry in Death register stating that his son Geddam Kameswara Rao who died by 20 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
consuming pesticide due abdominal pain. It contains the initial of Panchayat
Secretary dt.31.01.2013. Accused did not deny his initials in Ex.P10 register.
On perusal of initials of the accused available in Ex.P10 Attendance Register and the initial on Ex.P1 application, one can find number of similarities in all those initials to say that they belong to a single individual. Hence, in view of the evidence of PW.2, PW.4 and PW.6 coupled with Exs P.1, P.3, P.9, P.10 and
P.12 it can be safely concluded that PW.1 presented original of Ex.P1 application to the accused praying to enter the death of his son in Death
Register and the accused obtained Ex.P3 statement and forwarded the same along with original of Ex.P12 to PW.4.
8.32) In this case there is no dispute with regard to the procedure for issuance of death certificate as stated by PWs.3 and 4 as if death certificate is applied for within 21 days, the Panchayat Secretary has to issue without any fee and if apply within 30 days, Panchayat Secretary has to issue on collection of late fee and if it is beyond 30 days and within one year, the applicant has to approach Tahsildar and if one year has elapsed, he has to approach RDO by paying late fee. PW.1 being village rustic not aware of the procedure for obtaining death certificate of his son to claim insurance amount of the deceased son.
8.33) Admittedly, by the time of Ex.P1 application, already 45 days were elapsed from the date of death of PW.1’s son and hence, accused did not issue any death certificate and forwarded the same to MRO without enclosing non-availability certificate. According to PW.4, accused did not lift the phone when she tried to ascertain why Ex.P12 was sent without enclosing non-availability certificate. It shows that though the accused is not competent to issue death certificate to PW.1 as 45 days elapsed, he assured PW1 to issue death certificate and obtained original of Ex.P1 and thereafter demanded for Rs.15,000/- for issuance of death certificate.
8.34) Accused tried to impress the Court that no record is produced to show that PW.1 was asked to produce death certificate to claim insurance 21 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
amount of his son. But during his cross-examination PW.1 has clearly stated that he contacted LIC Agent for payment of LIC amount 10 days after the death of Kameswara Rao and was asked to obtain death certificate and that he did not apply LIC authorities for release of Insurance amount of deceased Kameswara Rao. Hence, it cannot be said that PW.1 was not in need of death certificate to claim insurance amount. In those circumstances, I have no hesitation to believe the evidence of PW.1 to conclude that the accused has demanded Rs.20,000/- and later reduced the same to Rs.15,000/- as bribe for issuance of death certificate of his son and on 25.02.2013 accused went to PW.1’s house and demanded and accepted
MO.3 of Rs.15,000/-.
8.35) Having admitted his receiving MO.3 tainted amount of
Rs.15,000/- and claimed that he received it as arrears of house tax due from
PW.1, it is for the accused to rebut the presumption under Sec. 20 of
Prevention of Corruption Act, 1988 by proving his defence by preponderance of probabilities though not beyond reasonable doubt. But in this case, the accused failed to rebut the said presumption that he did not accept the same as gratification other than legal remuneration and in fact he received it towards arrears of house tax. Hence, the decision in Gundappa’s case relied on by the accused has no application to the present facts of the case on hand. In those circumstances, I have no hesitation to believe the evidence of PWs 1 to 4 and 6 to 8 to conclude that the prosecution is able to prove that the accused has demanded and accepted Rs.15,000/- as bribe from PW.1 for issuance of death certificate of his son Geddam Kameswara
Rao and thereby committed offences under Secs. 7 and 13 (1) (d) of
Prevention of Corruption Act, 1988. Accordingly, all these points are answered against the accused.
9.POINT NO. 5:
In view of my above discussion on points 1 to 4, the accused shall be held guilty of the charges under Sec.7 and 13 (1) (d) r/w 13 (2) of Prevention 22 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
of Corruption Act, 1988 and be convicted for those charges. Accordingly, this point is answered.
10.In the result, I find the accused guilty of the charges under
Sec.7 and 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and accordingly, I convict him under Sec.248 (2) of Cr.P.C.
Typed to my dictation by the Stenographer - Gr.I, corrected and
pronounced by me in the open Court, this 12th day of March 2020.
Special Judge for SPE & ACB Cases
-cum- III Additional District Judge, Visakhapatnam
As the accused being a public servant, demanded PW.1 for bribe to issue death certificate of his second son, I don’t want to proceed under the provisions of Probation of Offenders Act. When I questioned the accused with regard to the quantum of sentence, he pleaded for lenient view stating that he has got two daughters, wife and widowed sister as dependents and that he has to undergo operation for his heart ailment and one of his daughter is studying 10th class, and he is the sole breadwinner for his entire family.
For the offence under Sec. 7 of Prevention of Corruption Act, 1988, minimum of 6 months and maximum of 5 years imprisonment was prescribed and for the offence under Sec. 13 (1) (d) of Prevention of Corruption Act, 1988, minimum of 1 year and maximum of 7 years imprisonment was prescribed.
After taking the nature of offences proved against the accused, his plea for lenient view, age and health of the accused and the minimum sentences prescribed for those offences into consideration, I feel it just to take lenient view in sentencing the accused. Accordingly, I sentence the accused to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.15,000/- (Rupees fifteen thousand only) in default to suffer Simple Imprisonment for three months for the offence under Sec. 7 of Prevention of Corruption Act, 1988 and to suffer Rigorous Imprisonment for one year and to pay a fine of
Rs.15,000/- (Rupees fifteen thousand only) in default to suffer Simple 23 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
Imprisonment for three months for the offence under Sec. 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988. Both the substantive sentences shall run concurrently. The remand period of accused from 25.02.2013 to 08.03.2013 is given set off under Sec. 428 of Cr.P.C. Mos 1 and 2 and 4 to 8 shall be destroyed after appeal or appeal period is over. MO.3 cash of
Rs.15,000/- shall be confiscated to State as PW.1 Geddam Venkata Rao already received Rs.15,000/- from the Investigating Officer on 24.07.2013.
Bail bonds of the accused shall stand cancelled. Accused is informed of his right to appeal to the Hon’ble High Court.
Typed to my dictation by the Stenographer - Gr.I, corrected and
pronounced by me in the open Court, this 12th day of March 2020.
Special Judge for SPE & ACB Cases
-cum- III Additional District Judge, Visakhapatnam
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the Prosecution: For the Defence:
P.W.1: Geddam Venkata RaoD.W.1: P. Ananda Rao
P.W.2: Pilli Pothuraju
P.W.3: Behara Venkata Satyanarayana
P.W.4: K. Padmalatha
P.W.5: G. V. V. Satyanarayana
P.W.6: N. Venkateswara Rao
P.W.7: S. Raghava Rao
P.W.8: E. Jangaiah
P.W.9: M. V. Ramana Murthy
DOCUMENTS MARKED
For the Prosecution:
Ex.P1/30.01.2013 : Photo copy of Application of PW.1 Ex.P2/24.02.2013 : Report of PW.1 Ex.P3/-: Statement of PW.1, his sons and his wife Ex.P4/-: Portion of Sec. 164 Cr.P.C., statement of PW.1 Ex.P5/25.02.2013 : Copy of FIR Ex.P6/25.02.2013 : Pre Trap Proceedings (Mediators Report-I) Ex.P7/25.02.2013 : Post Trap Proceedings (Mediators Report - II)Rough Sketch 24 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
Ex.P8/25.02.2013 : Rough Sketch Ex.P9/-: Made up file containing three sheets Ex.P10/-: Attendance Register for the year 2013 Ex.P11/25.02.2013 : Mediators Report - III Ex.P12/31.01.2013 : Carbon copy of Letter Ex.P13/12.02.2015 : Sanction Order Proceedings Ex.P14/25.02.2013 : Original FIR in Cr.No.5/RCT/VSP/2013 FOR DEFENCE : - NIL -
MATERIAL OBJECTS
MO.1 : Sealed cover containing sample of Sodium Carbonate Powder
MO.2 :Sealed cover containing sample of phenolphthalein powder MO.3 :Tainted cash of Rs.15,000/- MO.4 :Sealed bottle containing solution of right hand wash of AO MO.5 :Sealed bottle containing solution of left hand wash of AO MO.6 :Sealed bottle containing resultant solution of inner lining of right side pant pocket of AO
MO.7 :Pant of AO MO.8 :Sealed cover containing sample of Sodium Carbonate Powder
Spl.Judge, ACB, Vsp. Copies to :
1. The Hon'ble High Court of AP, Vijayawada for information
2. The District Collector, Visakhapatnam for information
3. The Spl. Public Prosecutor, Visakhapatnam
4. The Accused Officer.
25 CC. 6/2015 Spl. Judge, SPE & ACB, Vsp.
CALENDER & JUDGMENT
CALENDER CASE TRIED BY THE SPECIAL JUDGE FOR ACB CASES-CUM-III ADDL. DISTRICT
& SESSIONS JUDGE, VISAKHAPATNAM
C.C.6/2015
(Cr.No.05/RCT-ACB/VSP/2013)
Between: State represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam … Complainant And: Medapalli Chitti Tirupathi Venkata Satya Suguneswara Rao Patnaik S/o late Rama Rao, 50 years, Panchayat Secretary & Executive Officer, K. Kotapadu Panchayat, K. Kotapadu Village & Mandal,
Visakhapatnam District. ... Accused Officer
Date of Offence:Prior to 24.02.2013 Date of Complaint:24.02.2013 Apprehension of Accused:25.02.2013 Date of Release on Bail:08.03.2013 Date of taken on file:14.05.2015 Date of Commencement of trial :29.03.2016 Date of Close of trial:08.10.2018 Date of Arguments:24.02.2020 Date of Sentence or Order:12.03.2020 EXPLANATION FOR DELAY AND REMARKS:- Accused appeared and received copies of documents. Thereafter charges for the offence punishable u/secs.7, 13 (2) r/w Sec.13 (1) (d) of Prevention of Corruption Act, 1988 was framed against the Accused on 03.11.2015. Thereafter PWs.1 to 9 are examined and Exs.P1 to P14 and Mos.1 to 8 are marked. The accused has examined one P. Ananda Rao as DW.1, but no documents were marked on his behalf and the case is posted for Arguments. The Special Public Prosecutor and the counsel for AO submitted written arguments. At last detailed oral arguments heard on both sides on 24.02.2020 and posted for judgment on 02.03.2020 and Judgment is pronounced on 12.03.2020. OFFENCE: U/secs.7, 13(2) r/w Sec.13 (1) (d) of Prevention of Corruption Act,1988 FINDING : Guilty for the offence under Sec. 7 and 13 (1) (d) of Prevention of Corruption Act, 1988.
S E N T E N C E: In the result, accused found guilty of the charges under Sec.7 and 13 (1) (d) of Prevention of Corruption Act, 1988 and accordingly, he is convicted under Sec.248 (2) of Cr.P.C. He is sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.15,000/- (Rupees Fifteen thousand only) in default to suffer Simple Imprisonment for three months for the offence under Sec. 7 of Prevention of Corruption Act, 1988. He is further sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.15,000/- (Rupees Fifteen thousand only) in default to suffer Simple Imprisonment for three months for the offence under Sec. 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988. Both the substantive sentences shall run concurrently. The remand period of accused from 25.02.2013 to 08.03.2013 is given set off under Sec. 428 of Cr.P.C. Mos 1 and 2 and 4 to 8 shall be destroyed after appeal or appeal period is over. MO.3 cash of Rs.15,000/- shall be confiscated to State as PW.1 Geddam Venkata Rao already received Rs.15,000/- from the Investigating Officer on 24.07.2013. Bail bonds of the accused shall stand cancelled. Accused is informed of his right to appeal to the Hon’ble High Court.
Special Judge for SPE & ACB Cases
-cum- III Additional District Judge, Visakhapatnam