ACB COURT, KNL.1 C.C.No.2/2020
IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF SPE & ACB
CASES, KURNOOL.
PRESENT: Smt.B.Sunita,
Special Judge for Trial of SPE & ACB Cases,
KURNOOL.
Wednesday, the 9th day of August, 2023.
CALENDAR CASE No.02/2020
Between:
State represented by The Inspector of Police, Anti-Corruption Bureau, Ananthapuramu Range, Ananthapuramu. …. Complainant -And-
Bangi Narasimha Raju, 36 years, Son of B.Siddaiah, Inspector, Endowments, Uravakonda Division, Office of Assistant Commissioner, Endowments, Ananthapuramu. …Accused Officer.
This case is coming for final hearing on 26-07-2023 in the presence of Special Public Prosecutor for State and of Sri.B.Vekata
Ratnam, Sri.A.Prabhakara Reddy, Advocates for accused officer, upon perusing the material on record, hearing both sides, having stood over for consideration till today, this court made the following:
J U D G M E N T
1.Inspector of Police, Anti-Corruption Bureau, Kadapa Range,
Kadapa filed a charge sheet against the Accused Officer in
Cr.No.08/RCT-ATP-2017 for the offences punishable under Secs.7 and 13(1) (d) r/w 13(2) of Prevention of Corruption Act, 1988, when he worked as Inspector, Endowments, Uravakonda Division office of
Assistant Commissioner, Endowments, Ananthapuramu, since he falls under the category of Public Servant as defined under Sec.2(c) of prevention of Corruption Act, 1988.
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2.Allegations as leveled in charge sheet are that, during 2016 Lw1-
B.Venkata Rangaiah on coming to know about the announcement of providing financial assistance of Rs.5,00,000/- as loan to the employees working in Endowments Department for constructing own house, he also applied for grant of housing loan in the month of
January, 2017 enclosing a copy of registered sale deed and relevant documents to the office of Assistant Commissioner, through
Endowments Executive Officer. In turn, the Assistant Commissioner endorsed the same to AO for enquiry and report.
Four months prior to 13.11.2015, AO visited the the village of Lw1 for enquiry and left. There was no information about loan approval to him and hence Lw1 met AO in the month of October during first week and enquired about his loan. At that time, AO demanded bribe of Rs.5,000/- for forwarding his report to Assistant Commissioner of Endowments for getting his loan approved. Again on 09.11.2017
Lw1 called AO from the phone of his friend Pujari Venkata
Ramanaiah/Lw10 and enquired about his loan, for which AO reiterated his earlier demand of bribe and asked him to meet him at
Ananthapuramu and also stated that he would not process the application of Lw1 unless bribe amount is paid. Since there was no other option, Lw1 agreed to pay bribe amount to AO.
As Lw1 was unwilling to pay demanded bribe amount to AO, he submitted a Telugu Written Complaint to the DSP, ACB on 13.11.2017 against AO and the same was received by incharge DSP, ACB,
Ananthapuramu and he endorsed the complaint to Inspector-
T.V.Chakravathy for verification and report. After due verification on 13.11.2017 at about 1.00 pm incharge DSP registered the case as mentioned supra and proposed to lay a trap against AO.
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During pre-trap proceedings held at the office of DSP, ACB,
Ananthapuramu on 13.11.2017 at about 1.30 pm Lw1 contacted AO from his cell phone bearing No.8008669094 to the cell phone of AO bearing No.9989621870 and AO asked him to come to the office of
Inspector, Endowments, Ananthapuramu Division and to pay demanded bribe amount of Rs.5000/-, so that he will submit his enquiry report. On the same day, AO was trapped when he demanded and accepted tainted currency of Rs.5,000/- from Lw1. In fact, after leaving the trap party, Lw1 went into the room of AO in the office of
Assistant Commissioner, Endowments. Whereas ACB Inspector-
T.V.Chakravarthy followed Lw1 upto the entry point of the room of AO and Lw1 proceeded further and found AO sitting in a Chair. On seeing
Lw1, AO enquired whether he brought bribe amount of Rs.5,000/- and on the affirmative reply of Lw1, he asked Lw1 to pay bribe amount and accordingly Lw1 paid tainted currency of Rs.5,000/- to AO and AO received said amount and counted with his both hands and kept the same in left side trouser pocket with his left hand. When Lw1 enquired about enquiry report, AO’s assured him that he would submit the report immediately to the Assistant Commissioner for further action.
Thereafter, Lw1 came out and gave prearranged signal and trap party rushed into the office and chemical test was conducted to both hands of AO and it gave positive result. Tainted currency of Rs.5,000/- was recovered from the left side trouser pocket of AO at his instance. The inner linings of left side trouser pocket of AO was also tested positive.
When questioned about the application of Lw1, AO handed over the file containing 12 sheets from his left side table draw which includes his enquiry report dt.12.11.2017. As per version of Assistant Commissioner enquiry report is not submitted by AO for further action.
Therefore, Lw16-DSP arrested AO on 13.11.2017 at 9.45 pm and he was remanded to judicial custody by this Court. Later, AO was
ACB COURT, KNL.4 C.C.No.2/2020 granted bail in Crl.M.P.No.917/2017 on 12.12.2017 by this Court.
During further investigation, Lw1 appeared before Lw14 – Special
Judicial First Class Magistrate, Prohibition & Excise Cases,
Ananthapuramu on 11.12.2017 and his Sec.164 Cr.P.C., statement was recorded.
Lw17 – Inspector of Police examined and recorded Sec.161
Cr.P.C., statements of Lw1, Lws.4 to 11 namely i.e., Koricha Vani,
Boatcoal Indira Prasanthi, Pokala Leelavathamma, G.Krishna Kumar,
Devarapalli Ananda Kumar, Karanam Nagendra Prasad, Pujari Venkata
Ramanaiah and Rasineni Yugandhar Naidu respectively.
Trap amount of Rs.5,000/- was reimbursed to Lw1 through online transfer by Head Office of ACB to the SB Account of Lw1 vide
A/c.No.31562200026174 of Syndicate Bank, Thondapadu Branch,
Gooty, Ananthapuramu District as per the orders of the D.G., Anti-
Corruption Bureau, Andhra Pradesh, Vijayawada vide Rc.No.148/RCT-
ATP/2017-S14, dt.28.03.2018.
The Special Chief Secretary to Government, Revenue (Vigilance.IV) Department Government of A.P., Velagapudi being the competent authority to remove the Accused Officer from Service accorded sanction for the prosecution of Accused Officer in the Court of law vide G.O.Ms.No.349, dt.01.08.2019. Accordingly, after completion of investigation, charge sheet was filed against Accused Officer.
3.My Predecessor of this court, has taken cognizance of the offence against accused under Sections 7 and 13(1)(d) r/w 13(2) of
Prevention of Corruption Act, 1988 on 04-01-2020.
4.On appearance of the accused officer, copies of documents were furnished to him as required U/S.207 Cr.P.C.
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5.On 06-01-2021, this Court examined the accused U/S. 239
Cr.P.C., and he denied the allegations made against him by prosecution. Hence, charges U/ Sec.7 and 13(1)(d) r/w 13(2) of
Prevention of Corruption Act, 1988, were framed against the accused officer. The charges were read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
6.To prove case of prosecution, 15 witnesses are examined and Ex.P-1 to Ex.P-29, M.O.1 to Mo.8 are marked. On behalf of accused officer Ex.D1 to Ex.D13 are marked. After 313 examination of the accused officer, he filed his written statement.
7.Now the points for determination are,
a) Whether prosecution is able to establish about pendency of official favour as on the date of trap?
b) If so, whether there is any demand and acceptance of bribe by AO as contended by prosecution?
c) Finally, whether prosecution is able to establish the guilt of accused officer for the charges framed against him as mentioned supra beyond reasonable doubt?
8.Heard both sides. Learned Spl.P.P. also filed written arguments on behalf of prosecution, which shows reference to some judgments relied on by him. Learned defence counsel filed copies of cateena of decisions relied on by him while advancing arguments.
9.Learned Spl.P.P. argued that, in this case AO being an
Inspector and duty bound to enquire and submit his report to the
Assistant Endowments Commissioner basing on the application sent by
Pw1 for sanction of housing loan to him and referred to him by the
Assistant Commissioner, demanded bribe amount of Rs.5,000/- from
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Pw1 and did not submit his report until bribe amount was paid by Pw1 to AO. Since, Pw1 do not want to pay bribe amount, he lodged a complaint with ACB Officials, Ananthapuramu and accordingly on 13.11.2017 a trap was organized and AO was trapped after receiving demanded bribe amount of Rs.5,000/- from Pw1. It is also argued that, the principle of Res Ipsa Loquitor has to be applied in this case, as there is no animosity between both parties to falsely implicate AO in this crime by Pw1. AO did not explain as to how tainted currency notes came to his possession. Even the inward register entries show that on 14-11-2017 report of AO relating to Pw1 was submitted and hence it is clear that, after receiving bribe amount, AO submitted his report. In addition evidence of mediators, who are independent witnesses, coupled with that of investigating officers and contemporaneous document i.e., mediator’s report-II/post trap proceedings proved the case of prosecution beyond reasonable doubt. Hence, AO is liable to be convicted for the charges framed against him. To prove his contentions he relied on judgments referred by him in his written arguments as shown below;
(a)In 2013 (2) ALT (Crl.) 378 (SC)Ramesh Harijan Vs State of
U.P. (July, 2013) Falsity of particular material witness or material particular, would not ruin the evidence from beginning to end. Maxim “falsus in uno falsus in omnibus” has no application in India.
(b)Principle of Res ipsa loquitor:-In Raghubir Singh V/s State of
Haryana 1974 (4) SCC 560 Acceptance of illegal gratification –
Res ipsa loquitor- applies.
(c) Evidentiary value of Mediators Report :-In Krishna Pillai V/s
State of Kerala 1989 (1) Crimes 700 Mediators report is a contemporaneous document and the contents in the
ACB COURT, KNL.7 C.C.No.2/2020 mediators report can be relied by the courts except confession statement of accused, if any. Haridev Aggarwal Vs
State of Punjab 2006(3) RCR (Crl) 82.
(d)Official Favour :- In ShivRaj singh V/s Delhi Administration AIR 1968 SC 1419 No official favour or intention to do any official favour - case made out under section 7 and 13(1)(d)PC Act.
Pillimarri Venugopala Krishna Murthy Vs State2011 (2) ALD (Crl) 438. Supreme Court 5 Judges Bench in Dhaneshwar
Narain Saxena Vs Delhi Administration AIR 1962 SC 195, 1962 (1) CRLJ 203.Supreme Court 3 Judges Bench AIR 1955 (SC) 70
Mahesh Prasad Singh Vs state of U.P.
(e)Presumption :-In C.K. Damodara Nair Vs Government of India 1997 CRLJ 739:-S.20 – Every acceptance of illegal gratification whether preceded by demand or not would be covered by S.7 of Prevention of Corruption Act.. State Vs A.Parthiban 2008
CRLJ 4772 SC. Subash Prabat Sonrane Vs State of Gujarat 2003 SC AIR 2169. State of Andhra Pradesh Vs Vasudeva Rao 2004 CRLJ 620.2010 SCC (Crl) 1067. State of M.P. Vs.
Harishankar Bhagawan Tripati. (Trial court and High Court acquitted A.O. Supreme Court reversed) Accused has to disclose how the tainted currency came into his position.
(f) State of U.P. V/s Zakrullah AIR 1998 SC.1474. (a)
Animosity theory not accepted. (b) Acquittance of independent witness with Police are fact that he helped police action would not by itself discredit evidence said independent witness. (c) Evidence of trap officer can be relied on even without corroboration. (d) Trap case accused caught red handed with tainted currency notes Non sending of samples solution use for conducting phenolphthalein test to chemical examiner would not vitiate trap.
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(g)AIR 1984 SC 63 State of Maharashtra V/s Narasinga rao
Gangaram Pimple. Evidence Act Sec.133 – Trap witnesses evidence appreciation is discussed. Touch stone to be applied, where in a trap case the judge magnified every minor retains or omission to falsify or throw even shade of doubt on the prosecution evidence done it would be the very anti-thesis of a correct judicial approach to the evidence of witness in a trap case. Indeed if such a harsh touch stone is prescribed to prove such a case it will be difficult for the prosecution to establish any case at all.
(h)Difference between Sec. 13(1)(d) and Sec. 7 of Prevention of
Corruption Act. The State V/s A.Parthiban 2008 Crl.L.J.4772
SC. Simultaneous conviction under section 7 & 13 (1) (d) is permissible. Principles U/S 71 IPC and Sec.220 Cr.P.C. applied.
Difference between 7 & 13 (1) (d) offences explained. Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Sec.7 and acceptance of illegal gratification in pursuance of demand by a public servant would fall under 13 (1) (d) of PC Act 1988.
(i) Subash Parbat Sonrane V/s State of Gujarat reported in
AIR 2003 S.C.2169. In case of obtainment the initiative vests in the person who receives and in that contest a demand or request from him will be a primary requisite for an offence u/s 5(1)(d) of P.C.Act, unlike an offence under section 161 of I.P.C. which can be established by proof of either acceptance or obtainment.
(j)Ramesh Kumar Gupta V/s State of Madhya Pradesh. 1995
Crl.L.J.- S.C. (a) when accused is Police Inspector and positive result of phenolphthalein powder test, bear denial that he had no knowledge of notes was without substance and no
ACB COURT, KNL.9 C.C.No.2/2020 question of false implication as it was proved that only after harassment and demand by accused complaint was compelled to borrow the amount for making payment and evidence of complaint was sufficiently corroborated by surrounding circumstances. Case proved beyond reasonable doubt . (b)Evidence regarding of complaint- corroboration need not be direct – can be by way of circumstantial evidence also.
(k)2011 SCC (Crl) (1) 214 B.Nagul Sharief Vs.State of A.P. (a)
Discrepancy regarding party of the prosecution story. Itself does not go to the root of the case. (b)Failure to inform superior officers of A.O. demand of bribe absolutely un- natural- contention rejected-corruption flows from top. (c)
False implication by complainant as he quarreled with A.O.
few days back is not acceptable.
(l) 2011 Crl,LJ SC 975 CM Sarma Vs. State of AP PC Act 7, 13(1) (d) Demand of bribe from contractor. Defence is strained relationship and demand of bribe improbable and evidence of PW.1, accompanying witness and Inspector improbablise the defence. Under Sec.133 of Evidence Act,
PW.1 is not accomplice. Act of Demand of Bribe is an act of extortion and Corroboration is not necessary.
(m)ShivRaj singh V/s Delhi Administration AIR 1968 SC 1419 No official favour or intention to do any official favour - case made out under section 7 and 13(1)(d)PC Act.
(n)2006 Supreme Court Cases (Crl) 346 Shanker bhai Laljibhai
Rot V/s State of Gujarat. Discrepancy as to the mode of demand of bribe and its effect is discussed. PW.1 consistently stating about demand, acceptance and recovery of money.
Variance regarding mode of demand is no consequence.
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Minor contradictions or inconsistencies immaterial. Under section 19 of P.C.Act, in the absence of any thing to show that any defect or irregularity in sanction caused failure of justice, plea relating to sanction is without substance. Under sec.17 of P.C.Act, Authority of Police Inspector, ACB can investigate any offence under 1988 Act and a Plea regarding it is not raised before court below. Such a plea is unsustainable before
S.C. under Article-136 of Constitution of India.
(o)Dhanvanth Rai Bhalvantha Rai Desai Vs State of Maharashtra 1964 SC 575 held that “it is well to bear in mind that whereas sec. 114 of the Indian evidence act it is open to the court to draw or not to draw presumption as to existence of one fact from proof of another fact and it is not obligatory upon court to draw such presumption u/s 4(1) however if a certain fact is proved i.e. where any gratification or valuable thing is proved to have been received by accused officer the court is required to draw a presumption that the person received the thing as a motive or reward as in Sec. 161 IPC.
Therefore for the reasons mentioned in the oral and written arguments and as per the above mentioned settled principles of law, case of prosecution against the accused officer has been proved beyond reasonable doubt and as such accused officer has to be convicted for the offence punishable u/s 7 of P.C. Act for having demanding and accepting illegal gratification of Rs.5,000/- from PW.1 and u/s 13(2) r/w 13(1)(d) of P.C. Act for obtaining pecuniary advantage by corrupt and illegal means and by abusing his official position in the interest of justice.
10.Per contra, learned Advocate for AO argued that, a perusal
FIR itself shows that no preliminary enquiry was done by the Inspector
ACB COURT, KNL.11 C.C.No.2/2020 of Police/Pw15, when complaint was endorsed to him by Pw14, for the reason that, FIR shows the status of AO as that of Executive Officer,
Ananthapuramu District, though AO was working at Uravakonda at relevant time. If at all discreet enquiries were properly conducted FIR should not have reflected the place of occupation of AO as
Ananthapuramu District.
But at this juncture, it is relevant to consider the evidence of Pw6 who worked as Junior Assistant in the office of Assistant Commissioner,
Endowments at relevant time. During cross-examination of Pw6, it is elicited that, on the date of trap i.e., 13.11.2017 AO came to the office to take charge of his additional post of A2’s seat in the office of
Assistant Commissioner. The seat of A2 is adjacent to the seat of Pw5.
As seen from the evidence of Pw4, coupled with Ex.P17 it is clear that, AO was transferred to Uravakonda on 31.05.2017. It is not in dispute that prior to trap, when application by Pw1 was submitted in the month of January, 2017, as per Ex.P2 AO worked at
Ananthapuramu and Uravakonda is within the district of Asst.
Commissioner, Endowments, Ananthapuramu. It is not that, FIR showed the status of AO as Inspector of Ananthapuramu. Therefore, much prejudice would not cause even if the status of AO is mentioned as Inspector of Ananthapuramu District in the FIR.
Another argument advanced on behalf of AO is that, complaint of
Pw1 was endorsed to the Inspector/Pw15 at 11.00 am by Pw14/DSP and within 2 hours i.e., by 1.00 pm on the same day, he submitted his discreet enquiry report on the complaint to Pw14/DSP. Within 2 hours it is very difficult to secure correct and detailed information and also to verify the antecedents about any person, even if a person is a police officer and hence FIR shows the status of AO as Inspector,
Ananatapuramu district and the descreet enquiry is false.
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At this juncture, learned advocate for AO relied on judgment of
Hon’ble Supreme Court in between Sirajuddin Vs State of Madras (1971
MLJ (Cri), wherein it was held that, “Before a public servant whatever be his status is publicly charged with acts of dishonesty which amounts to serious misdemeanor or misconduct and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a respectable officer”.
With due respects to the principle laid down in above referred judgment, though it is binding, the facts mentioned in said judgment are different from the facts of this case. In addition, since police officials got contacts through which they can get secret information within short time due to advanced technology these days, there is no need to travel to the place of working of any person including that of
AO to verify antecedents of AO. Therefore it is concluded that there was discreet enquiry also in this case by Pw15 before registering FIR.
11.According to learned defence counsel, AO contacting Pw2 over phone to enquire about his housing loan is doubtful, because there was no necessity to contact Pw2 to talk to Pw1, when cellphone number of
Pw1 is available on Ex.P3. But at this juncture, evidence of Nodal
Offices who are examined as Pws.12 and 13 is relevant. According to evidence of Pw12 Mobile No.9989621870 is in the name of AO as per
Customer Application. Ex.P24 relates to Call Data of said number for the period from 01.06.2017 to 15.11.2017. As per prosecution, on 08.11.2017 at about 7.30 pm AO received a call from Mobile
No.9491509530. As per evidence of Pw13 said cell phone number belongs to Pujari Venkata Ramanaiah who is examined as Pw2 in this case. On 09.11.2017 at 7.42 am AO contacted Pw2 for a period of 52 seconds and again on 13.11.2017 at 1.35 pm there was an incoming call to the cellphone of AO from phone No.8008669094 and it belongs to Pw1. Therefore, it is clear that there were contacts between the
ACB COURT, KNL.13 C.C.No.2/2020 cellphones of AO and Pw2 and Pw1, but who conversed and what was the conversation is not available and it is presumed that, since the phone numbers belonged to AO as well as Pw1 and Pw2 as discussed above, it is concluded that, there were contacts between AO’s phone and Pw1 and Pw2’s phone at relevant time as stated by prosecution.
Learned advocate for AO relied on judgment of Hon’ble Supreme Court in between Gulam Mohd. Vs State of Gujarat (AIR 1980 SC 1558 wherein it was observed that, “while appreciating evidence, background of the case should not be lost sight of” and the principles laid down in said judgment are also considered.
Regarding first demand of bribe as per prosecution is, when Pw1 approached AO in the first week of October as mentioned in his complaint marked as Ex.P1, AO demanded him bribe of Rs.5,000/- for submitting his report. However, as Pw1 was not willing to pay the bribe amount, he returned. Thereafter he again contacted AO through
Pw2’s cellphone and the same dates were also stated both Pw2 as well as Pw1 in their evidence and they corroborated with the Call Data
Records marked as Exs.P24 and P27 and with the evidence of Pws.12 and 13.
Mere contacting AO over phone through Pw2’s cell phone as per call data is not sufficient to prove the guilt of AO or to prove that AO demanded bribe amount. Prosecution failed to produce call data regarding Pw1 making phone calls to AO from his cell phone to prove his contention that AO did not respond to him properly when he called from his cellphone and hence Pw1 contacted AO through cellphone of
Pw2 by travelling all the way to a distance of 50 kms. It is not that both
Pw1 and Pw2 resided at same place. In addition to demand bribe amount, official favour must be pending and in criminal cases including
PC Act it must be proved beyond reasonable doubt by the prosecution.
At this juncture, the evidence of Pw4 to Pw6, who are employees of the
ACB COURT, KNL.14 C.C.No.2/2020 office of the Assistant Commissioner of Endowments, Anantapuramu is very much relevant to consider.
Pw4 is Assistant Commissioner of Endowments, Anantapuramu at relevant time. According to Pw4 Uravakonda Division also falls under her control, in addition to Ananthapuramu and Hindupuram divisions.
Each division was headed by one Executive Inspector and AO is EO of
Uravakonda division at that time. Pw1 is a hereditary Poojari of
Bolikonda Ranganatha Swamy Temple at Gooty Mandal for the past 20 years prior to the date of this incident. On 18.01.2017 he applied for grant of Housing loan of Rs.5,00,000/- and it reached her office through
Executive Officer of Bolikonda Ranganatha Swamy Temple on 03.03.2017. Her predecessor received it and this part of reaching application of Pw1 to the office Pw4 is corroborated by the evidence of
Pw7, who worked as Jr. Asst and maintained dispatch section at relevant time. It is also not in dispute that, on the same day it was sent to the seat of A6 i.e., to the seat of Pw6, who is concerned with it.
In turn, after making entries in personal register, she sent it to the seat of Pw5. And thereafter, Pw5 forwarded it to Assistant Commissioner and Assistant Commissioner has put some order. Predecessor of Pw4 ordered for inspection and report on the application of Pw1 to AO and again the file was returned to the seat of A6 and she prepared a note and sent it to the Superintendent and in turn it reached Assistant
Commissioner for signing. On 06.06.2017 the order directing AO for inspection and report was communicated AO and Ex.P12 contains the communication given to AO on 06.06.2017 by Pw7. Evidence of Pw7 corroborated regarding communicating said order to AO on 06-06- 2017. Evidence of Pw5, Pw6 corroborated on all material aspects as discussed above with the evidence of Pw4 in their evidence.
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12.On the date of trap i.e., on 13.11.2017 Pw4 was in the Grievance
Cell at Collectorate, when she received phone call from DSP, ACB,
Ananthapuramu about the trap of AO at about 2.30 or 3.00 pm.
Immediately, she returned to the office and directly went to the DSP,
ACB who was present in the office and participated in post trap proceedings. According to her evidence, when any application is referred to either AO or to any Inspector within 1 ½ months or 2 months, he has to submit his report depending on the time and work load. Sometimes, time may extend. Admittedly in this case on 06.06.2017 the application of Pw1 reached AO, whereas his report marked as Ex.P11 shows the date as 12.11.2017, that means AO took nearly 5 months for preparing his report. AO is incharge of making enquiries in respect of house loans as per Column No.11 of Ex.P17 of his job chart. So regarding Pw1’s application also it is AO, who has to submit his report and it is his duty and the same is corroborated in the evidence of Pw4 also and there is no dispute about it.
13.During cross-examination of Pw4, it is elicited that, their
Commissioner is competent authority to sanction loan. When Assistant
Commissioner is not in office, a responsible person/superintendent will receive Tapal and place them in Taptal Register and Superintendent will look them for urgency and if anything is urgent, it will be marked to the person concerned. Ex.P11 which is Inspection Report of AO for the application of Pw1 contains entry showing Pw5 marking the report of
AO to A6 seat on 13.11.2017 as Pw6 is concerned with it. On that day
Pw4 was not present and Superintendent/Pw5 opened Tapal. In such circumstances, after she/Pw4 arrives, she has to make initialsand then inward entry will be made and will be sent to A6’s seat who was concerned with it. Ex.P11 is attested copy of the report submitted by
AO relating to this case and Ex.D5 is original report in respect of
ACB COURT, KNL.16 C.C.No.2/2020 another case submitted by AO on 13.11.2017 and it shows her initial as 13.11.2017 and also endorsement of Pw5. The inward number of Ex.D5 is 3504 dt.13.11.2017as per inward entry marked as Ex.D6. Ex.D7 is summoned copy of Ex.P11 and it contains the initial of Pw4 with date
as 14.11.2017 and inward number as 3506 dt.14.11.2017 and it relates
to Pw1 as per inward entry. Ex.D8 relevant entry in inward file is 3506.
Ex.D9 is another report submitted by AO on that day and received by
Superintendent on 13.11.2017 and its inward entry is 3514. Ex.D10 is said relevant entry. Said three reports were submitted by AO on 13-11- 2017. Witness/Pw4 voluntarily stated that, since trap occurred on 13- 11-2017 and as they do not know what to do, on the next, they made inward entries. As per initial of Pw5 on Ex.P11, it was submitted in the office on 13-11-2017 itself and after its receipt in her office, it was got xeroxed and she attested along with mediators and DSP, ACB. After AO submits his report, he has no role to play in the file of Pw1.
At this juncture, it is argued that, since Pw4 in her evidence stated that, as trap occurred on 13.11.2017, they do not know what to do and hence, on the next date, they made entries in inward register itself coupled with the evidence of Pw4 during cross-examination that, above 3 reports were submitted by AO on 13.11.2017 as per inward entries, clearly goes to show that, AO submitted his reports including that of Pw1’s report on 13.11.2017 itself and prior to trap of AO is considered. Learned Advocate for AO further argued that, only after submission of original of Ex.P11 i.e., Ex.D7 in the office of Assistant
Commissioner, Endowments, Anantapuramu it was got Xeroxed by the
DSP, ACB and the same is admitted during cross-examination by Pw14 goes to show that, already report was submitted by AO on that day, though it is dt.12.11.2017. Since Pw4 also admitted that, only after receipt of original of Ex.P11 in her office on 13.11.2017 it was got
Xeroxed and she attested along with mediators, DSP, ACB on the same
ACB COURT, KNL.17 C.C.No.2/2020 day coupled with her evidence that, after report was submitted by AO, he has no role to play in the file of Pw1 goes to show that AO submitted his report on the date of trap, but prior to the trap and it was received by Pw5 as admitted by her in the cross-examination and that original of
Ex.P11 was in tapal file on 13.11.2017 and ACB authorities seized it along with entire tapal file on the same day and that she kept it in the tapal file after marking it to which seat the file has to be sent goes to show that, the report was submitted by AO before trap itself, but on the same day. Exs.D5 and D9 were also received on 13.11.2017 and they are reports in respect of other two cases referred to AO and the evidence of Pw4 corroborated in this regard that, AO submitted 3 reports on said date. All above reports were collected by ACB officials.
Pw5 also admitted that, the report of Pw1 was submitted by AO
before ACB Officials visited their office as AO came in the morning
itself. Pw6 is Junior Assistant and her evidence in the cross- examination revealed that, on that day, AO came to take charge of
Additional post of A2’s seat in the office of Assistant Commissioner and
it is adjacent to her seat. There is no separate table for AO to look after the work of Uravakonda Inspector in the office of Assistant
Commissioner at Anantapuramu. During chief examination of Pw6, she deposed that, on 13.11.2017 AO came to the office in the morning itself. Pw10 also worked at relevant time in the office of Assistant
Commissioner, Endowments, Ananthapuramu along with Pw4 to Pw8.
However, his evidence is not of much relevance to connect the accused to the crime, but it showed AO’s presence in the office at relevant time.
14.Case of prosecution and evidence of Pw1 coupled with evidence of Pw4 is that, when Pw1 applied for grant of housing loan on 18.01.2017, it was forwarded to AO and AO received it on 06.06.2017
ACB COURT, KNL.18 C.C.No.2/2020 and went for inspection to the village of Pw1. And when he went for inspection, AO obtained another application from Pw1 dt.07.09.2017/
Ex.P3 on the date of his inspection, as there was an old dilapidated house in the site of Pw1. As per Ex.P2 first application of Pw1, his house site is vacant site. Similarly as per Ex.P7 registered sale deed dt.21.05.2002 also the site is vacant. But when AO went for inspection there was a dilapidated house and the same is also not in dispute. As per Ex.P3 AO asked Pw1 to submit another application stating that, earlier he showed his site as vacant site mistakenly and accordingly,
Pw1 submitted Ex.P3 on 07.09.2017 to AO at his house. The same is also reflected in Ex.P11 report of AO. So, nearly two months after inspection, AO submitted his report by taking another application from
Pw1.
Learned Advocate for AO argued that, if really, AO had any bad or prejudicial intention against Pw1, he would have submitted a negative report against the first application of AO stating that, there was already a dilapidated house existing, which he had not done. Therefore, bonafides of AO cannot be suspected merely because tainted currency was alleged to have recovered from possession of AO on the date of trap i.e., on 13.11.2017.
It is also argued that, Pw2 is the kingpin behind registering this crime and in his cross-examination it is elicited that, the distance between his village and village of Pw1 is about 50 kms. He gave a complaint in a trap case in CC 3/2020 and Pw14 herein was DSP at that time also and registering that crime is admitted during cross- examination of Pw14. However Pw14 denied about his prior acquaintance with Pw2, though he registered that crime also. Pw2 also deposed that, another crime was also got registered by him regarding similar offence prior to above referred crime. Pw2 further admitted that, either himself or Pw1 tried to contact AO from the cellphone of
ACB COURT, KNL.19 C.C.No.2/2020
Pw1, when he came to him, though Pw1 brought his cellphone with him. He does not remember the cellphone number of Pw1, but from his cellphone, he called Pw1. He knows that Endowments
Commissioner is competent authority to sanction exgratia and AO has no power to sanction loan.
During cross-examination of Pw1, it is elicited that, he did not state before the Inspector ACB that, he telephoned to AO on 09-11- 2017, which is very important as on 13th i.e., just three days later AO was trapped. Further Pw1 also did not mention in his complaint that, when he contacted AO through his cellphone, AO did not respond to his calls and hence from Pw2’s cellphone, he contacted AO. It is suggested to Pw1 that, a false complaint is lodged against AO due to grudge about recovery initiated from the archakas at the instance of
AO for obtaining housing loan illegally.Pw2 admitted about registering criminal cases against some archakas for wrongfully taking housing loan. Pw1 also admitted that after ascertaining whereabouts of AO in his cellphone in the presence of DSP, he went to office of Asst.
Commissioner, Anantapuramu is contra to his earlier evidence that as
AO asked him to come to Anantapuramu to meet him at the office of
Asst. Commissioner, Endowments at Anantapuramu on 13-11-2017 and Pw1 also did not mention in his complaint that AO asked him to come to office at Anantapuramu on 13-11 2017 and hence on that day he went to the office of Asst. Commissioner of Endowments at
Anantapuramu to meet him.
At this juncture, in support of his contention learned defence counsel relied on following judgments;
1.In Trilok Chandra Maurya Vs State reported in (2011 (2)
ALD (Crl) 672 (AP) where in it was held that, “Allegation of accused reiterating his demand of bribe in respect of second contact and accepting illegal gratification cannot be believed, as there was no
ACB COURT, KNL.20 C.C.No.2/2020 official favour pending with the accused on alleged date of demand for bribe or on the date of trap”
2.Hon’ble Supreme Court in Haridev Sharma Vs State of Delhi (AIR 1976 SC 1489) held that, “No conviction can be sustained on the basis of mere trap incident when the vital parts of the prosecution case which formed the genesis for the trap incident cannot be accepted”.
3.In another judgment between P.Satyanarayana Murthy Vs
District Inspector of Police & Another (AIR 2015 SC 3549) Hon’ble Apex
Court held that, “The proof of demand of illegal gratification, is the grave men of the offence under Sec.7 & 13(1)(d)(i) and (ii) and in the absence thereof, unmistakably the charge thereof, would fail. Mere acceptance of any amount allegedly by any of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sects.7 and 13 of the Act would not entail his conviction there under (paras 21, 22).”
4.In B.Jayaraj Vs State of A.P. (2014(2) ALD (Crl) 73) Hon’ble
Apex Court held that “Demand for illegal gratification, failure to prove –
Complainant not supporting prosecution case insofar as demand by accused is concerned and disowning what he had stated in initial complaint – Prosecution adducing not other evidence to prove demand – Demand of gratification cannot be held to be proved only on the basis of complaint filed and evidence of punch witness – Mere possession and recovery of tainted a money from accused without proof of demand – Not sufficient for his conviction either under Section 7 or under Section 13(1)(d)(ii) r/w 13(2) – Conviction and sentence awarded by Trial Court and confirmed by High Court set aside”.
ACB COURT, KNL.21 C.C.No.2/2020
It was further held by the Supreme Court that, “Demand of illegal gratification is sine qua non to constitute offence under Section 7.
Mere recovery of currency notes Cannot constitute offence under
Section 7 unless proved beyond doubt that accused voluntarily accepted money knowing it to be bribe”.
5. Hon’ble Supreme Court in C.M.Girish Babu Vs CBI (2009) 2
SCC (Cri) 1) held that “Mere recovery of tainted money discovered from the accused when substantive evidence is not reliable, If enough ground conviction under S.7, Defence by appellant-accused that he had believed all along that amount in question was for repayment of loan taken from his assistant. It is reiterated that, mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that, accused voluntarily accepted the money knowing it to be bribe”.
It was further held by the Hon’ble Supreme Court as under (at para 16) that “The crucial question would be whether the appellant had demanded any amount as gratification to show any official favour and whether said amount was paid by Pw10 and received by the appellant as consideration for showing such official favour”.
It was also held by the Hon’ble Supreme Court as under (at para
18) that “Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe”.
6.Hon’ble Supreme Court in State of Punjab Vs Madam
Mohan Lal Verma (2013) 14 SCC 153 held that, “Necessity for showing demand for illegal gratification and Mere recovery of tainted money is
ACB COURT, KNL.22 C.C.No.2/2020 not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification”.
It was further held as under that, The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case the Court may look for independent corroboration before convicting the accused person”.
7.In recent judgment of Hon’ble Supreme Court in between
N.Vijayakumar Vs State of Tamil Nadu (2021 Crl.L.J.1353), it was held that “Mere recovery of tainted money from circumstances under which such money and article is found is not sufficient to convict accused when substantive evidence in case is not reliable and Accused is entitled to benefit of doubt”.
8.The full bench of Hon’ble Supreme Court in a recent judgment between Neeraj Dutta Vs State (Govt. of NCT of Delhi) reported in AIR Online 2022 SC 1160 (at para 68) on reference by three
Judge Bench had concluded that, “What emerges from the aforesaid
discussion is summarized as under:
(a)Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Secs.7 and 13(1)(d) and (ii) of the Act”.
The Hon’ble Supreme Court further held as under (at para 69) “In view of the aforesaid discussion and conclusion, we find that there is no conflict in the three Judge Bench decisions of this Court in
B.Jayaraj and P.Satyanarayana Murthy with the three Judge Bench
ACB COURT, KNL.23 C.C.No.2/2020 decision in M.narsinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “Primary evidence” of the complainant is unavailable owing to his death or any other reason”.
9.Hon’ble High Court of A.P., in K.Narasimhachary Vs State,
ACB (2003 Crl.L.J.3315) held that, “Once it is evident that Pw1 for his own reasons was desperate in implicating the accused, it is not at all difficult for anyone to ensure that the hands or parts of his body or apparel of the accused get in contact with the traces of
Phenolphthalein powder”.
10.In T.Subramanian Vs State of T.N. (2006(1) SCC (Cri) 401), the Hon’ble Supreme Court held that, “Where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt”.
11.In Bansilal Yadav Vs State of Bihar (AIR 1981 SC 1235)
Hon’ble Apex Court held that, “Presumption under – Statement of
accused recorded under Sec.313 Cr.P.C., that currency notes thrust in his pocket, not by itself sufficient to raise presumption”.
By relying on above referred judgments, learned Advocate for AO argued that, there was never any demand of bribe by AO and if he really demanded bribe amount and Pw1 did not pay it to him before submitting his report on 13-11-2017, AO should not have submitted his report/Ex.P11/Ex.D7 before the office before receiving alleged bribe amount or else AO should have submitted a negative report without obtaining Ex.P3 from Pw1 at his house on the date of his inspection. It is Pw1, who thrusted the amount into trouser pocket of AO inspite of refusal by AO and meanwhile ACB Officials came and trapped him and this is done at the instance of Pw2, who bore a grudge against AO as he is behind recovery of housing loan from some archakas and also for
ACB COURT, KNL.24 C.C.No.2/2020 registering criminal cases against them. It is also suggested to Pw2 and Pw1 that, they both colluded to implicate AO in this case since Pw2 is in habit of registering cases under P.C.Act against Government
Officials and as already Pw2 has got registered two other trap cases against Government Officials through Pw14-DSP and this case also got registered by influencing Pw14 due to his prior acquaintance, but by
Pw1 only to harass him. It is true that registering of two other cases against other officials is admitted by Pw2 in his cross-examination. But mere registering criminal cases at the instance of Pw2 is not sufficient to conclude that this case is also got registered at his instance. Further result of said cases is not available before this Court. It is not in dispute that Pw1 and Pw2 were friends. When their friendship is not denied and as already Pw2 has got registered two criminal cases under P.C.Act alleging demand of bribe against Government Officials, taking his assistance by Pw1 to get registered case against AO cannot be suspected. However, since Pw1 immediately after trap contacted Pw2 and informed him about trap of AO creates a doubt about the bonafidies Pw1 in getting this case registered and the argument advanced on behalf of AO supports this. In addition according to Pw2, when Pw1 came to his house with his cellphone, why he contacted AO with the cellphone of Pw2 is not explained by Pw1 properly by producing documentary evidence. In fact Pw1 deposed that, he did not take his cellphone to the house of Pw2, when he went to his house and hence he contacted AO from the cellphone of Pw2, though according to
Pw2 it is not so. This conduct of Pw1 creates a doubt about manner of incident. Hon’ble Apex Court in a cateena of judgments observed that the complainant in criminal cases is always an interested and partisan witness and concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested
ACB COURT, KNL.25 C.C.No.2/2020 witness. In a proper case the Court may look for independent corroboration before convicting the accused person.
In addition, under offences registered under PC Act, essential ingredient of pendency of official favour has to be proved to prove the guilt of the accused, which prosecution has failed to prove as already
AO submitted his report and the same is corroborated in the evidence of Pw.4 to Pw6 coupled with Exs.P11 and Ex.D7. Ex.D5 to Ex.D10 coupled with the evidence of Pw4 clearly proved that the three reports including that of Pw1 were submitted by AO on 13-11-2017 itself and
before trap of AO in this case.
Therefore, to conclude, as discussed above, coupled with the principles laid down in above referred judgments of Hon’ble Apex Court and Hon’ble High Court, when pendency of official favour is not proved by prosecution as it is essential ingredient to attract the offence under
PC Act and further mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification for doing official favour, it is not safe to convict the accused. Hence, viewed from any angle as discussed above, prosecution has failed to prove the guilt of accused officer beyond reasonable doubt and hence benefit of doubt is given to the AO and acquitted.
15.In the result, Accused Officer is found not guilty for the offences punishable under Secs.7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and hence he is acquitted u/s 235(1) Cr.P.C.
Bail bonds of Accused Officer shall be cancelled six months after pronouncing of this judgment u/s 437-A Cr.P.C. Marked and unmarked property if any, except Mo.4 shall be destroyed after appeal time is over. Mo.5 shall be confiscated to State after appeal time is over.
ACB COURT, KNL.26 C.C.No.2/2020
Dictation given to Stenographer, transcribed by him, corrected and signed and pronounced by me in the Open Court, on this the 9th day of August, 2023.
sd/-B.Sunita,
Spl. Judge for Trial of SPE & ACB Cases, Kurnool.
APPENDIX OF EVIDENCE
WITNESES EXAMINED
For prosecution:
Pw1: B.Venkata Rangaiah. Pw2: P.Venkata Ramanaiah. Pw3: E.Venkata Swamy. Pw4: K.Vani. Pw5: B.Indira Prashanthi. Pw6: P.Leelavathamma. Pw7: G.Krishna Kumar. Pw8: K.Nagendra Prasad. Pw9: R.Yugandhar. Pw10: D.Ananda Kumar. Pw11: R.Vijaya Kishore. Pw12: D.C.Ramaiah. Pw13: K.Y.Narasimha Prasad. Pw14: C.Jayarama Raju. Pw15: T.V.Chakravathy.
For Defence:
None.
EXHIBITS MARKED
For prosecution:
Ex.P1: Complaint.
Ex.P2: Attested copy of application dt.18.01.2017 given by Pw1.
Ex.P3: Application dt.07.09.2017 given by Pw1 when AO came for enquiry.
Ex.P4: Attested copy of house plot.
Ex.P5: Attested copy of security bond given by Pw1.
Ex.P6: Attested copy of declaration.
Ex.P7: Attested copy of registered sale deed dt.21.05.2002.
Ex.P8: Attested copy of Customer Application form.
Ex.P9: Copy of complaint it bears signature of Pw3.
Ex.P10: Mediator report-1 contains signature of Pw3.
Ex.P11: Enquiry report of AO. (12 sheets)
Ex.P12: Attested copy of main file. (22 sheets)
ACB COURT, KNL.27 C.C.No.2/2020
Ex.P13: Attested copies of the relevant pages of inward register in which application of Pw1 was also entered as Sl.No.617 dt.23.01.2017.
Ex.P14: Attested copy of personal register.
Ex.P15: Rough sketch.
Ex.P16: Post-trap proceedings.
Ex.P17: Original service particulars and job chart of Inspector (4 pages).
Ex.P18: Relevant portion in Sec.161 Cr.P.C. statement of Pw5.
Ex.P19: Part of Sec.161 Cr.P.C., statement of Pw6.
Ex.P20: Self attested copy of certificates.
Ex.P21: Authorization letter in Rt.No.232 dt.12.08.2022.
Ex.P22: Prosecution orders dt.01.08.2019.
Ex.P23: Authorization letter dt.01.01.2022.
Ex.P24: Call Data Record along with 65(B) Indian Evidence Act
Certificate and Customer Application Form of 9989621870 (30 sheets on both sides)
Ex.P25: Call Data Record of 8008669094 (18 sheets on both sides).
Ex.P26: Authorization letter.
Ex.P27: Call details of Cell No.9491509530 from 01.06.2017 to 15.11.2017 (20 sheets = 39 pages).
Ex.P28: 65(B) Certificate.
Ex.P29: Original FIR.
For Defence:
Ex.D1: Certified copy of complaint in C.C.No.3/2020. Ex.D2: Certified copy of Sec.161 Cr.P.C., statement of Pw2 dt.25.05.2017. Ex.D3: Certified copy of Sec.164 Cr.P.C., statement of Pw1 dt.22.07.2017. Ex.D4: Sec.161 Cr.P.C., statement of Pw1 dt.20.10.2017. Ex.D5: Original of Ex.P11 – Enquiry report. Ex.D6: Relevant entry in ward register. Ex.D7: Summoned copy of Ex.P11 and it contains initial of Pw4 with
date 14.11.2017 and inward number as 3506 dt.14.11.2017.
Ex.D8: Relevant entry inward file as 3506. Ex.D9: Another report submitted by AO and received by Superintendent on 13.11.2017 with inward entry No.3514 it shows initial of Pw4 dt.13.11.2017. Ex.D10: Relevant entry No.3514 in inward register. Ex.D11: Part of Sec.161 Cr.P.C., statement of Pw5. Ex.D12: Part of Sec.161 Cr.P.C., statement of Pw6. Ex.D13: Certified copy of pre-trap proceedings in Cr.5/RCT-KUR/2017 dt.23.05.2017.
ACB COURT, KNL.28 C.C.No.2/2020
MATERIAL OBJECTS MARKED
Mo1: Sample sodium carbonate powder.
Mo2: Sample of phenolpthlein powder.
Mo3: Resultant solution of right hand wash of AO.
M04: Resultant solution of left hand wash of AO.
Mo5: Cash of Rs.5000/-.
Mo6: Resultant solution of pant pocket of AO.
Mo7: Wearing pant of AO.
MO8: Sample cover of sodium carbonate powder.
sd/-B.Sunita,
Spl. Judge for Trial of SPE & ACB Cases, Kurnool.
“True copy” By order