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IN THE COURT OF SPECIAL JUDGE UNDER THE PREVENTION OF CORRUPTION ACT
FOR THE SPEEDY TRIAL OF CASES OF EMBEZZLEMENT OF SCHOLARSHIP AMOUNTS IN SOCIAL WELFARE DEPARTMENT ETC., NAMPALLY, AT HYDERABAD.
Monday, the 21st day of November, 2022
Present:Sri G.Raja Gopal, Prl.Spl.Judge for trial of SPE & ACB Cases, FAC-Special Judge under P.C.Act, Hyderabad.
CALENDAR CASE No. 14 of 2013
Name of the Complainant: The State through Inspector of Police, Anti-Corruption Bureau, Hyderabad Range, Hyderabad.
Crime No.: Cr.No.9/ACB-HR/2011.
Offence: The charges under Sections 7,13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 against AO-1 and charge under Section 12 of the Prevention of Corruption Act, 1988 against A-2.
Name of the Accused Persons: AO-1 Rayarao Hari Prasad Rao, s/o.Narasimha Rao, age 53 years, Occ:Administrative Officer, O/o.Asst.Secretary, RTA, East Zone Malakpet, Hyderabad, R/o.Plot. No.44/1, Sainath Colony, Vanasthalipuram, Hyderabad.
A-2 Yedula Raju, S/o.Yellaiah, Aged about 32 years, Occ:Pvt.Agent at RTA Office, Malakpet, Hyderabad, R/o.Ekwaipally(v) Amangal(M) Mahabubnagar District.
Plea of the Accused Persons: Pleaded not guilty.
Finding of the Court: Found not guilty.
Result: AO1 is found not guilty for the offences punishable under Sections 7 and 13(1)(d) r/ w 13(2) of P.C.Act,1988 and A2 is found not guilty for the offence punishable under Section 12 of the P.C.Act, 1988. Hence, AO1 and A2 are acquitted under Section 248(1)
Spl.Judge under P.C.Act, Hyderabad Page No.2 Judgment in C.C.No.14/2013 of Cr.P.C. The bail bonds of AO1 and A2 will be in force for Six months u/s.437A of Cr.P.C. MO3 tainted currency of Rs.5,000/- shall be confiscated to the State and MO1, MO2, MO4 to MO10shall be destroyed after expiry of appeal period. As per Ex.P16 Mediators Report-II, PW10 has seized personal cash of Rs.800/- from AO1. The said amount is neither deposited before this Court nor returned to AO1. Therefore, the complainant is directed to return the personal cash of Rs.800/- to AO1.
Name and particulars of AO-1 Rayarao Hari Prasad Rao, Accused Persons s/o.Narasimha Rao, age 53 years, Occ:Administrative Officer, O/o.Asst.Secretary, RTA, East Zone Malakpet, Hyderabad, R/o.Plot. No.44/1, Sainath Colony, Vanasthalipuram, Hyderabad.
A-2 Yedula Raju, S/o.Yellaiah, Aged about 32 years, Occ:Pvt.Agent at RTA Office, Malakpet, Hyderabad, R/o.Ekwaipally(v) Amangal(M) Mahabubnagar District.
This case is coming before me for final hearing on 03.11.2022 in the presence of Smt.K.Rajani, learned Special Public Prosecutor, ACB, Hyderabad and Sri.E.Uma Maheshwer Rao, Sri.S.Chandrahas Rao, learned Counsel for AO1 and of Sri.S.Venu Gopal Rao, Sri.M.Jangaiah, learned Counsel for A2, upon hearing both sides, perusing the material on record and having stood over for consideration till this day, this Court made the following:
J U D G M E N T
1.The State represented by the Inspector of Police, Anti Corruption
Bureau, Hyderabad Range, Hyderabad has filed charge sheet in Crime
No.9/ACB-HR/2011 against AO1 for the offences under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (Here-in-after referred as ‘P.C.Act’ for convenience) and against A2 for the offence under
Section 12 of the P.C.Act.
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2.The brief averments of the charge sheet are as under:
That AO1 worked as Administrative Officer in the Office of
Assistant Secretary, RTA, East Zone, Malakpet, Hyderabad from 08.02.2010 to 16.05.2011 and by virtue of the post held by him he falls under the category of ‘public servant’ as defined under Section 2(c) of the
P.C.Act.
3.PW1 has a Maruti Van bearing No.AP-11AA-1977 having purchased from Sri.Ram Mohan, an Army person in the year 2009. While
PW1 was using the vehicle on 02.04.2011, PW4 Motor Vehicle Inspector,
Hyderabad stopped the vehicle at Tirumalagiri and seized the same by issuing check report for violation of non-payment of tax and for not taking permission for conversion into gas fuel. PW4 also informed to PW1 to go to
RTA, Malakpet to pay the required taxes and to get the release order of the vehicle. Accordingly on 06.04.2011 and subsequently on several times
PW1 went to RTA, Malakpet, met AO1, lastly AO1 informed him to pay a tax of Rs.29,570/- plus Rs.11,025/- in the form of Demand Draft and to submit required forms. On 27.04.2011 PW1 met AO1 along with D.Ds, filled in forms, AO1 verified the same, again calculated and informed to PW1 that the total tax to be paid was Rs.51,300/- for issuance of release order of the vehicle. Then PW1 informed to AO1 that the vehicle was of 1997 year model and it does not require that much amount as tax. AO1 demanded
PW1 that if an amount of Rs.8,000/- is paid as bribe to him he would write a letter to the Mithra Agencies Limited to ascertain the value of the vehicle
Spl.Judge under P.C.Act, Hyderabad Page No.4 Judgment in C.C.No.14/2013 and would reduce the tax. PW1 reluctantly agreed and on 03.05.2011 AO1 prepared a letter addressed to Mithra Agencies, Himayathnagar and gave it to PW1. On the same day, PW1 went to Mithra Agencies where he was informed that old records are not available and the same was endorsed on the letter. Again PW1 approached AO1 at his office at Malakpet. On seeking the endorsement of Mithra Agencies on the letter, AO1 calculated the tax and informed PW1 to pay additional amount of Rs.7,600/- in the form of Demand Draft. On 13.05.2011 when PW1 met AO1 and submitted their forms along with Demand Draft and also additional amount in the form of Demand Draft, AO1 reiterated his earlier demand of bribe for
Rs.8,000/-. On negotiation, AO1 reduced the bribe amount to Rs.5,000/- and he has called A2 and asked PW1 to pay the bribe amount to A2. When
PW1 informed to AO1 that he did not bring amount, AO1 immediately returned the file along with D.Ds to him and told him to bring the bribe amount and then to submit the file. PW1 was not willing to pay the demanded bribe of Rs.5,000/- to AO1, as such PW1 lodged a complaint to the DSP, ACB, Hyderabad Range (PW10) on 13.05.2011 at 1.00 PM requesting to take legal action against AO1.
4.PW10 made discrete enquiries with regard to genuineness of the complaint and reputation of AO and registered a case in Crime No.09/ACB-
HR/2011 u/s.7 of the P.C.Act on 16.05.2011 at 10.00 AM, after obtaining permission from the competent authority and investigated into.
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5.During the course of investigation, PW10 secured the presence of PW3 and LW4 Saif-bin-Badar as mediators and laid a trap against AO on 16.05.2011.
6.During the course of trap on 16.05.2011, PW1 along with PW2 met AO1 at his office at Malakpet, AO1 demanded bribe amount from PW1 and when he offered the bribe amount, AO1 stopped him with hands and then called A2 by contacting on the cell phone number 9848780772 and within a minute A2 came to the seat of AO1, AO1 directed PW1 to hand over the bribe amount to A2 and at the same time informed A2 to accept the same from PW1. Accordingly A2 accepted the bribe amount of
Rs.5,000/- from PW1, counted with both hands and kept in his left side back pocket of his wearing pant. Then, AO1 asked PW1 to hand over the file. Accordingly he handed over the file to AO1. On receiving the signal from PW1, the trap party rushed there and tainted currency of Rs.5,000/- was recovered from the left side back pocket of wearing pant of A2 at the instance of mediators. The Phenolphthalein test conducted over both hands of A2, AO1 and the inner linings of wearing jeans pant of A2, which came into contact with the tainted currency notes, yielded positive result.
AO1 and A2 were arrested by PW10 on 16.05.2010 and they were produced before this Court on 17.05.2011 for judicial custody and later they were released on bail. During the course of investigation, PW10 examined the witnesses and recorded their statements and also got recorded the statements of PW1 and PW2 u/s.164 of Cr.P.C. by the learned
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Magistrate concerned. The Principal Secretary to Government, Transport,
Roads and Buildings, Government of Andhra Pradesh has accorded sanction order vide G.O.Ms.No.1 dt.01.01.2003 for prosecution of AO1. No sanction is required to prosecute A2 under Section 12 of the P.C.Act.
7.Cognizance of offence is taken by the then Presiding Officer of this Court for the offences under Sections 7, 12 and 13(1)(d) read with 13(2) of the P.C.Act against AO1 and for the offence under Section 12 of the P.C.Act against A2.
8.On appearance of accused persons before this Court, copies of case documents were furnished to them as required under Section 207 of
Cr.P.C. Upon hearing both sides and on perusal of the material before this
Court, the accused persons were examined under Section 240 of Cr.P.C. by explaining the accusation levelled against them in brief, for which they denied the same. Therefore, charges for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the P.C.Act was framed against AO1 and charge for the offence under Section 12 of the P.C.Act was framed against A2.
Charges were read over and explained to both the accused, they denied the charges, pleaded not guilty and claimed to be tried.
9.During the course of trial, PW1 to PW12 are examined, Exs.P1 to
P28 and MO1 to MO10 have been marked on behalf of the prosecution.
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10.After closure of prosecution evidence, AO1 and A2 are examined under Section 313 of Cr.P.C. by explaining the incriminating evidence available in the evidence of prosecution witnesses against them. Both the accused denied the said incriminating evidence available against them.
However, both the accused have chosen to file their respective written statements under Section 313(5) of Cr.P.C. Accordingly they have filed.
AO1 and A2 did not adduce any defence evidence.
11.Heard arguments from both sides. Perused the Written
Arguments and the record.
12.Now the points that arise for consideration in this case are:
1) Whether AO1 demanded and accepted bribe of Rs.5,000/- from PW1?
2) Whether A2 abetted AO1 to commit alleged offences?
3) Whether the prosecution has proved its case for the charges levelled against AO1 and A2 beyond reasonable doubt?
4) To what relief?
POINTS NOs.1 to 3:
13.Points Nos.1 to 3 are inter-related with each other, as such these points are taken up together for the sake of convenience.
14.To substantiate the case of prosecution, as many as 12 witnesses are examined. PW1 is the defacto complainant. PW2 is
Spl.Judge under P.C.Act, Hyderabad Page No.8 Judgment in C.C.No.14/2013 accompanying witness to PW1. PW3 is one of the mediators to the proceedings vide Mediators Reports I and II. PW4 is the Motor Vehicle
Inspector, Hyderabad, who seized the Maruti Van from the possession of
PW1. PW5 is the Senior Manager, Mithra Agencies, Himayathnagar,
Hyderabad, who speaks about endorsement made on the letter addressed by the RTA, Hyderabad, East Zone. PW6 and PW7 are Nodal Officers of
Idea Cellular and Bharti Airtel Limited. PW8 is the then Incharge RTO of
Malakpet. PW9 Sri.Bhanu Kiran is the Section Officer of Transport
Department, who speaks about the sanction order to prosecute the accused. PW10 is the then Deputy Superintendent of Police, ACB and trap laying officer. PW11 and PW12 are Investigating Officers.
15.The story of the prosecution as unfolded by the testimony of prosecution witnesses, in brief, is as under:
PW1 Sri.T.Venkatesh is defacto complainant and he set the criminal law into motion by lodging Ex.P7 report before PW10 on 13.05.2011 at 01.00 PM. His evidence is that he is running a van. On 02.04.2011, PW4 Motor Vehicle Inspector of Trimulgherry seized his vehicle on the ground that he did not pay tax and not having permission to run the vehicle with LPG gas. PW4 issued check report to him vide Ex.P1 and asked him to get his vehicle released from RTA office, Malakpet by paying necessary taxes.
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16.On 06.04.2011 PW1 went to RTO office and met AO1, who is
Administrative Officer and shown him Ex.P1 and his vehicle documents,
Ex.P2 is the alleged vehicle documents, but on perusal of Ex.P2 it reveals that it is not a vehicle document and it is a letter dt.26.04.2011 issued by the Financier to the RTA with a request to terminate hire purchase endorsement from the RC Book as well as from the records in respect of vehicle bearing No.AP-11AA-1977 and Form No.35 which is in blank except signatures of PW1. PW1 further deposed that AO1 informed that his vehicle documents are not in proper way and asked him to come again.
Then he turned up to the Office of AO1 for about 10 times but there was no proper response from AO1. Finally, AO1 asked him to get two Demand
Drafts, one is for Rs.29,570/- and another one is for Rs.11,025/-.
Accordingly he obtained D.Ds on 26.04.2011. Xerox copies of D.Ds are marked as Exs.P3 and P4, which are for Rs.29,570/- and Rs.1,125/- respectively both dt.26.04.2011.
17.On 27.04.2011 accordingly PW1 approached AO1 and submitted the original D.Ds to him. Again AO1 informed him that the calculation is wrong and he has to pay total amount of Rs.51,300/-, for which he informed to AO1 that his vehicle is 1997 model and such big amount need not be paid. AO1 informed that he would address a letter to the Maruti
Mithra Agencies for getting valuation and he demanded bribe amount of
Rs.8,000/-. On 03.05.2011 AO1 handed over Ex.P5 letter addressed to the
Manager, Mithra Agencies, Himayathnagar to furnish valuation of the
Spl.Judge under P.C.Act, Hyderabad Page No.10 Judgment in C.C.No.14/2013 vehicle in the year 1997. On the same day, PW1 went to Mithra Agencies and PW5 who is Senior Manager of Mithra Agencies, Himayathnagar endorsed on Ex.P5 stating that old records are unavailable. Later, PW1 approached AO1 and handed over Ex.P5 to him. AO1 asked him to get
Demand Draft for Rs.7,600/-. On 12.05.2011 he obtained two Demand
Drafts for the said amount and submitted them to AO1 on 13.05.2011.
Xerox copies of two D.Ds for Rs.6,600/- and Rs.1,000/- are marked as
Ex.P6 and he also submitted Exs.P1 and P2. Then, AO1 asked demanded bribe amount of Rs.8,000/-, on negotiation AO1 reduced the amount to
Rs.5,000/-. As PW1 had no money at that time, AO1 returned his file stating that the work will be completed as and when the bribe amount is paid. Therefore on 13.05.2011 he went to ACB office, Hyderabad and lodged a written report under Ex.P7 before PW10 ie., DSP, ACB, Hyderabad
Range, who asked PW1 to come to his office on 16.05.2011 along with proposed bribe amount at 9.30 AM.
18.Accordingly PW1 went to the ACB office on the said date and time. There, PW10 called him inside and obtained his signature on FIR.
PW10 introduced two mediators to him, copy of Ex.P7 was given to the mediators who have gone through the contents of it, enquired with PW1 and he confirmed the same, then the mediators attested the copy of
Ex.P7. PW1 produced bribe amount of Rs.5,000/- in Rs.500/- denominations and one of the mediators noted down the numbers of notes. One Head Constable applied white powder to the currency notes
Spl.Judge under P.C.Act, Hyderabad Page No.11 Judgment in C.C.No.14/2013 and kept tainted currency notes in the empty shirt pocket of PW1. PW1 was instructed by PW10 that the bribe amount to be given to AO1 only on his demand and in case AO1 accepts the bribe amount he should give a signal by wiping his face with handkerchief and that PW1 stated that he has no transactions with AO1. PW10 got demonstrated the
Phenolphthalein test and explained its significance. Then PW1 informed to
PW10 that his friend U.Kumar (PW2) also came with him. PW10 called
PW2 inside the office and asked him to observe the transactions that might take place between PW1 and AO1. A panchanama was drafted by the mediators incorporating all the proceedings, which is Mediators
Report-I and the same is marked as Ex.P14.
19.On the same day, at about 11.25 AM, the trap party members went in the Government vehicles, whereas PW1 and PW2 went by a separate car to the RTO office, Malakpet and reached at about 11.50 AM, their vehicles stopped at a distance of 100 yards from the RTO Office. Then
PW1 and PW2 entered the RTO Office and the trap party members followed them upto the office and took vantage positions around the RTO office.
They found AO sitting in a chair in his room and AO1 asked PW1 whether he brought the amount and he replied positively. When PW1 tried to offer the amount to AO1, but he refused to receive and warded off the notes with his both hands. AO1 telephoned to one person and a private person wearing jeans pant and T-shirt came to that room. AO1 asked PW1 to give the amount to that person (A2). The said person received the amount,
Spl.Judge under P.C.Act, Hyderabad Page No.12 Judgment in C.C.No.14/2013 counted with his both hands and kept it in his left side pant pocket. Then he handed over the forms, Exs.P1 and other documents to AO1 and he came out and relayed pre-arranged signal. His friend PW2 was observing all the events by standing in the office. The trap party rushed to that place and PW1 informed PW10 that he gave amount to the private person. The
DSP asked PW1 and PW2 to wait outside and after three hours they were called by DSP and their versions incorporated and that after 15 days PW1 and PW2 gave statements before the Magistrate at Rajendranagar.
20.PW2 is a friend of PW1 and accompanying witness. According to
PW1, after explaining the significance of Phenolphthalein test in the Office of PW10 he informed to the DSP that PW2 also came with him. Thus, according to the evidence of PW1, his friend PW2 has not witnessed the proceedings that had taken place in the Office of ACB before leaving to the
Office of AO. But contrary to that, PW2 deposed the entire events that has taken place in the Office of PW10 ie., pre-trap proceedings. PW2 further deposed corroborating the evidence of PW1 with regard to proceeding to the office of RTA, Malakpet on the date of trap and the subsequent events till giving pre-arranged signal by PW1.
21.PW3 Sri.M.Bhupal Reddy, is one of the mediators to the pre-trap and post-trap proceedings under Exs.P14 and P16 respectively, both are dt.16.05.2011. His evidence goes to show that on 14.5.2011 their office has received a letter from ACB requesting to depute one Gazetted Officer
Spl.Judge under P.C.Act, Hyderabad Page No.13 Judgment in C.C.No.14/2013 and one Non-Gazetted Officer. Accordingly their Executive Engineer has deputed him and LW4 Saif-bin-Badar, Junior Assistant of their office and they went to the Office of PW10 on 16.05.2011 at 10.15 AM. PW10 introduced PW1 to them and vice-versa. They enquired PW1 about the genuineness of Ex.P7 and PW1 affirmed the contents are to be true and correct. Both the mediators have attested on the copy of complaint, which is Ex.P11. PW10 has shown them the documents vide Exs.P1 to P6 along with copy of RC and copy of Banker’s Cheque which is Ex.P13 for Rs.1000/- payable to SRTA, Hyderabad. PW3 deposed the contents of Ex.P14
Mediators Report-I and seizure of samples of Phenolphthalein and Sodium
Carbonate powder vide MO1 and MO2. According to him, Ex.P14 proceedings were concluded at 11.15 AM. He also deposed that after pre- trap proceedings they reached the Office of RTA, Malakpet at about 11.50
AM and deposed corroborating the evidence of PW1 with regard to giving instructions to PW1 by PW10 as deposed by him. According to him, PW1 and PW2 went inside RTA office, Malakpet at about 12.00 Noon and PW1 came outside at 12.20 PM and relayed pre-arranged signal. Immediately, the trap party approached PW1 and he informed PW10 DSP that on the instructions of AO1, he handed over the amount to a private person who was wearing a jeans pant and T-shirt, who was standing right side of the table of AO1 and PW2 was also present in the room. Then, DSP introduced himself to AO1 and that AO1 and others became panic and the person who was wearing T-shirt and jeans pant tried to run away but DSP restrained him. On enquiry by DSP, the said person disclosed his name as Edula Raju
Spl.Judge under P.C.Act, Hyderabad Page No.14 Judgment in C.C.No.14/2013 (A2) a private agent in RTA office.
22.PW3 further deposed that DSP got prepared sodium carbonate solution in two glass tumblers and asked A2 to rinse his fingers of both hands in both tumblers and the test yielded positive. On enquiry by DSP, version of A2 was incorporated in the Mediators Report-II, which is Ex.P16.
On questioning by DSP about the bribe amount, A2 has removed a wad of currency notes from his left side back pocket of his wearing pant and produced before the mediators. The mediators verified the numbers of tainted currency and found tallied with that of earlier numbers mentioned in Ex.P14. The tainted currency was seized by DSP, which is MO3. DSP got prepared sodium carbonate solution in a glass tumbler and secured the wearing pant of A2 by providing him a Lungi and subjected the inner linings of the left side back pant pocket to the chemical test, which yielded positive. DSP has seized the pant of A2 vide MO4. DSP also seized the resultant solutions vide MO5 to MO7. Later the DSP got prepared sodium carbonate solution in two separate glass tumblers and made AO1 to rinse his hand fingers in the solution and it yielded positive. MO8 and MO9 are resultant solutions. On enquiry by DSP, AO1 denied to have received any bribe.
23.On enquiry by DSP with regard to pending work of PW1, AO1 produced a file from his office table and on verification they found five
D.Ds, office-note, Form Nos.35 and 26 and also letter addressed to Mithra
Agencies (vide Exs.P1 to P6) and the same were seized. For the sake of
Spl.Judge under P.C.Act, Hyderabad Page No.15 Judgment in C.C.No.14/2013 convenience Xerox copies of documents were obtained, the originals were handed over to PW8, who is incharge RTO. On search of the table of AO,
Ex.P9 receipt showing tax payable in respect of seized Maruti Van of PW1 and Ex.P10 application for duplicate RC Book were found. According to him, DSP also seized Attendance Register which is Ex.P5, in which the signature of AO1 was found against his name on 16.05.2011.
24.Coming to the evidence of PW4, who is a Motor Vehicle
Inspector deposed that on 02.04.2011 at 8.10 AM he seized Maruti Omni van bearing No.AP-11AA-1977 belonging to PW1 as it was plying without tax and running vehicle with LPG gas cylinder with fuel unauthorizedly.
Therefore, he issued Ex.P1 check report.
25.PW6 and PW7 are Nodal Officers of Idea Cellular and Bharti
Airtel respectively, who issued Call Data Records (CDRs) under Exs.P17 and P18 of AO1 and A2 respectively, but the CDRs are not supported by any certificate issued under section 65-B of the Indian Evidence Act as the
CDR is stored in electronic form in their server. In view of the latest decision of the Hon’ble Supreme Court in Ravinder Singh @ Kaku vs.
State of Punjab reported in 2022 LiveLaw of Supreme Court 461, the
Hon’ble Apex Court held that certificate under Section 65-B of the Indian
Evidence Act as mandatory requirement for admissibility of electronic evidence. Therefore, their evidence is not helpful to the case of prosecution.
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26.PW8 Sri.Y.Satyanarayana Rao was in-charge RTO of East Zone,
Malakpet as on the date of trap. His evidence is that AO1 herein was the
Administrative Officer of RTO, which is equivalent of Superintendent in their Transport Department. He deposed the duties and job chart of AO1.
Through this witness, Exs.P19 to P23 are marked.
27.PW9 is working as Section Officer in Transport, Roads and
Buildings Department. He deposed about according sanction to prosecute
AO1 under Ex.P27. According to him, on 31.05.2011 their office received copies of FIR, Mediators Reports I and II, copy of complaint and other relevant documents from DG, ACB. Subsequently, on 17.08.2012 their office received final report from DG, ACB and a copy was addressed to
Vigilance Commissioner. Their office also received specimen sanction order from DG, ACB on 28.08.2012. He further deposed that on 10.09.2012 their office received the advice of Vigilance Commissioner that the material available is sufficient to prosecute AO1 and also advised to take departmental action. After considering the material placed before the
Principal Secretary to Government, after conducting provisional enquiry,
he submitted the file to the Minister concerned for his approval. After receipt of the approval of Minister, the Principal Secretary to Government approved the fair copy of the sanction order and issued G.O. to prosecute
AO1 under Ex.P27.
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28.PW10 is the Trap laying officer and he deposed corroborating the evidence of PW1 and PW3 and also deposed contents of pre-trap and post-trap proceedings, which are Exs.P14 and P16. On 16.5.2011 he registered FIR under Ex.P28 and received complaint vide Ex.P7 from PW1 on 13.05.2011 at 1.00 PM. In the meanwhile he got the contents of petition verified through his Inspector and also reputation of AO1. Since the evidence of PW3 is, as per the contents of Ex.P7, Exs.P14 and P16, as such the same is not extracted hereunder to avoid repetition since PW3 also deposed the said facts, being one of the mediators who participated in the pre-trap and post-trap proceedings.
29.PW11 is the then Inspector of Police, ACB, Hyderabad Range and he assisted PW10 in the trap against AO1 and A2 and he took up further investigation from PW10. During the course of investigation, he examined and recorded statements of PW4, PW8 and got recorded the statements of
PW1 and PW2 u/s.164 of Cr.P.C. before the learned Magistrate concerned.
He also obtained Call Data Records of AO1 and A2 from PW6 and PW7 under Exs.P17 and P18 respectively and in view of his transfer he handed over the investigation to PW12 who filed charge sheet after receiving sanction order under Ex.P27.
30. Leaned Special Public Prosecutor has filed written arguments and also submitted oral arguments supporting the prosecution case and contended that by virtue of oral and documentary evidence available on
Spl.Judge under P.C.Act, Hyderabad Page No.18 Judgment in C.C.No.14/2013 record, the prosecution has proved its case against AO1 and A2 for the charges levelled against them beyond reasonable doubt and urged to convict AO1 and A2 accordingly.
31.The learned Special Public Prosecutor has relied on the following decisions:
1) The State of Gujarat vs. Navinbhai Chandrakant Joshi in
Crl.Appeal Nos.895-896 of2018 dt.17.7.2018, wherein the Hon’ble
Supreme Court of India held that “Demand and acceptance of illegal gratification has been proved by the evidence of PW1 and PW13. The Hon’ble High Court was not right in holding that demand and acceptance was not proved.”
It was also held that “since it was established that the accused was possessing bribe money it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe.”
2) State of Andhra Pradesh v. P.Venkateshwarlu in Crl.Appeal
No.1317 of 2008 dt.06.05.2015. The sum and substance of the said decision is that, “It is for the accused to rebut the presumption by adducing direct or circumstantial evidence, that the money recovered was not a reward or motive as mentioned under Section 7 of the P.C.Act.”
3) Chaitanya Prakash Audichya, Appellant vs. C.B.I., Respondent in
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Crl.Appeal No.697 of 2011 dt.01.07.2015, the Hon’ble Supreme Court observed that, “In the present case the versions of PW1 and PW2 are completely consistent establishing the basic ingredients of demand and acceptance. The tainted currency notes were found on the person of the appellant. The explanation given by him soon after the incident through his letter dated 10.06.2003 is completely different from the theory put forth while the appellant examined himself as DW2. In our view, the demand and acceptance thus not only stand fully established but the presumption invocable under Section 20 of the Act also stood unrebutted.”
4) Shankerbhai Laljibhai Rot vs. State of Gujarat dt.14.09.2004, wherein the Hon’ble Apex Court observed that, “The testimony of PWs.1,2 and 3 has not been shaken and they have consistently spoken about the demand, the acceptance and the recovery of money. Minor variance as regards the mode of demand is really of no consequence to corrode the credible and cogent evidence of
PWs.1, 2 and 3. Therefore, we find no infirmity in the conclusions arrived at by the Trial court and the High Court holding the accused guilty.”
5) D.Velayutham vs. State rep. By Inspector of Police, Salem Town,
Chennai in Crl.Appeal No.787 of 2011 dt.10.03.2015. The gist of the said decision of the Hon’ble Supreme Court of India is that, “unless A1 has demanded the money and has also directed him to hand over the same to
Spl.Judge under P.C.Act, Hyderabad Page No.20 Judgment in C.C.No.14/2013
A2, there was no reason at all as to why PW1 should hand over the money to A2. PW1 has consistently stated that A1 demanded the bribe and that
A2 received the amount as stated by him.”
32.On the other hand, learned defence counsel argued that AO1 is a public servant and A2 is a private person. It is submitted that the prosecution has miserably failed to prove the demand and acceptance of illegal gratification by AO1 from PW1 and that PW1 being a law violator, running his Maruti Van without paying life tax and without payment of penalty for unauthorized alteration of the vehicle with LPG gas cylinder.
PW1 wanted to get his vehicle released through ACB and he succeeded in that process and PW8 without following the due process and under coercion of ACB officials he has released the vehicle of PW1 vide Ex.P22 without there being any application for release of the vehicle and without payment of proper penalty and causing loss to the government exchequer and that the evidence of PW1 and PW2 is nothing but interested in nature and there are no independent witnesses examined to prove the alleged demand and acceptance and the trap laying officer has not examined the officials of RTA office, namely Papaiah and Chandrasekhar, who were sitting next to AO1, which is doubtful as to the case of the prosecution and that except the evidence of PW1 there is no other evidence to prove the alleged demand and acceptance of illegal gratification.
Spl.Judge under P.C.Act, Hyderabad Page No.21 Judgment in C.C.No.14/2013
33.He also argued that when PW1 is intending to hand over the tainted notes to AO1 towards compounding fee/penalty, he warded off and pushed it aside, as such the Phenolphthalein test conducted on his fingers yielded positive. Yielding of Phenolphthalein test positive is not a substantive piece of evidence. He further submitted that AO1 during post- trap proceedings under Ex.P16 spontaneously stated that he never demanded any bribe from the complainant. The spontaneous statement of
PW1 shall be taken into consideration. He further argued that PW9 is not the competent person to speak about according of sanction to prosecute
AO1 under Ex.P27 as admittedly he has not worked in the concerned section at the time of issuing Ex.P27 and he does not have any personal knowledge about issuing Ex.P27 and that the competent authority who issued sanction order under Ex.P27 is not examined before this Court to prove the sanction order and no opportunity was given to the defence to cross-examine the sanctioning authority to ascertain whether he has issued sanction order by application of his mind, therefore the sanction itself is bad in law to prosecute the AO1. In view of the above said submissions, learned defence counsel argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. Therefore, urged to acquit the accused persons for the charges levelled against them.
34.In the light of the above arguments and evidence, now the cross-examination of prosecution witnesses is to be scrutinized with reference to the documentary evidence.
Spl.Judge under P.C.Act, Hyderabad Page No.22 Judgment in C.C.No.14/2013
35.PW1 in his cross-examination admits that he has not paid life tax to his vehicle and on 02.04.2011 his vehicle was seized by PW4 for the reason that his vehicle was fitted with LPG unauthorized fuel cylinder and non-payment of life tax and that he did not give any papers along with
Ex.P7 complaint. Here, it is important to mention that it is elicited from
PW1 that on 16.05.2011 ie., the date of trap he went with Rs.5,000/- alone and he did not give any papers to the ACB authorities. This piece of evidence creates any amount of doubt with regard to the presence of PW2 during pre trap proceedings. More over, according to cross-examination of
PW2, he got acquaintance with PW1 since long time prior to this case as both of them are drivers. According to the admission made by PW2, he does not know the reason behind the seizure of vehicle of PW1 till date.
Though according to PW2, he accompanied to PW1 to the office of AO1 on the date of trap, but his cross-examination goes to show that he did not observe PW1 giving any pre-arranged signal and he did not observe the
ACB authorities entering into the office and he did not know who called
ACB officials into the office. Therefore, in view of the above said cross- examination of PW1 and PW2, it is crystal clear that the presence of PW2 along with PW1 is doubtful. It is elicited from PW1 that his vehicle is non- transport vehicle and it can not be used as a contract carriage. He enquired with the counter clerk in non-transport section as to the amount which he has to pay to get his vehicle released. The counter clerk by name Sri.Paul has given Ex.P9 slip mentioning the amount which he has to
Spl.Judge under P.C.Act, Hyderabad Page No.23 Judgment in C.C.No.14/2013 pay towards life tax, penalty and difference of tax and that demand draft for the said amount should be in favour of Secretary, RTA. Ex.P9 was given to him even before lodging Ex.P7 complaint. According to PW1, by the date of receiving Ex.P9 he paid Rs.29,575/- and Rs.11,025/- (It should be
Rs.29,570/- and Rs.1,125/- respectively according to Exs.P3 and P4 copies of D.Ds.) PW1 also admits that by considering the amount for which he obtained D.Ds difference of tax to be paid by him also mentioned in Ex.P9 as Rs.12,730/- (It should be Rs.21,730/- as per Ex.P9.) On perusal of Ex.P9 it reveals that the total amount payable by PW1 towards life tax and penalty is Rs.51,300/- and PW1 admits that he did not obtain draft for total amount of Rs.51,300/- by the date of trap. PW1 does not know how much penalty was imposed by RTA authority for unauthoized fuel also. However, he admits that after submitting his application he came to know that he has to pay Rs.5,000/- as compounding fee for unauthorizedly using gas fuel cylinder and that unless he pays the said Rs.5,000/- his vehicle will not be released. He also admits that his application in Form No.26 for issuance of duplicate Certificate of Registration is blank even today except his signature, which is marked as Ex.P10. PW1 also deposed that before he lodged Ex.P7 complaint, AO1 told him what is correct amount payable by him ie. Rs.51,300/- and that he has not paid the said amount by the date of trap. He also admits that he did not pay the difference amount nor ACB officials asked him to pay the difference amount.
Spl.Judge under P.C.Act, Hyderabad Page No.24 Judgment in C.C.No.14/2013
36.PW1 stated that AO1 demanded bribe amount to send Ex.P5 which is a letter addressed to the Manager, Mithra Agencies,
Himayathnagar dt.03.05.2011. PW1 admits that he has not stated in
Ex.P1 or in his 161 CrPC statement or in his 164 CrPC statement that AO1 demanded Rs.8,000/- on 03.05.2011 for giving Ex.P5. The recitals of Ex.P7 reveal that AO1 informed to PW1 that the total tax liability is Rs.51,300/-, but till date PW1 has not paid the said amount as admitted by him.
Assuming for a moment that AO1 demanded bribe amount of Rs.5,000/- to send Ex.P5, AO1 would not have addressed Ex.P5 letter on 03.05.2011 without taking bribe amount. Therefore, it is crystal clear that without taking any illegal gratification from PW1, AO1 has addressed a letter to
Mithra Agencies under Ex.P5 on 03.05.2011 to ascertain the value of the vehicle in the year 1997. But PW5 on seeing the said letter endorsed that old records are unavailable with them. Therefore, in the circumstances of the case, this court is of the considered opinion that the alleged demand is not established beyond all reasonable doubt. More over, there is no corroboration to the evidence of PW1 in this regard.
37.The interesting thing is that even without payment of statutory penalties and compounding fees, the ACB officials addressed letter on the next day of trap to PW8 to release the vehicle, who obliged the letter of
ACB officials and released the vehicle in favour of PW1 under Ex.P22. As admitted by PW1, he has not submitted any application in the Office of
PW8 for release of vehicle. Thus, through the above evidence, it appears
Spl.Judge under P.C.Act, Hyderabad Page No.25 Judgment in C.C.No.14/2013 that the modus operandi of PW1 is to get his vehicle released though ACB officials. Accordingly ACB officials have acted though they have no power to order PW8 to release the vehicle, but PW8 without collecting statutory penalty and compounding fees, for the reasons best known to him, he has released the vehicle of PW1 causing loss to the government.
38.Now, the cross-examination of PW8 goes to show that PW1 has not filed any application for release of the vehicle. His admissions made in the cross-examination would reveal that the office note seized and annexed to Ex.P10 is kept blank and that note-file was not prepared by the date of trap, 2% penalty per month has to be levied on the life tax payable and that he has to ascertain the total amount paid by PW1 before issuing the release order and PW1 paid total amount of Rs.24,670/-. Again he volunteered that PW1 paid Rs.39,295/- through five D.Ds. He also admits that he has received a letter from ACB officials on 16.05.2011 and that he has collected Rs.24,995/- under all accounts for releasing of the vehicle. It is important to mention that this amount is contrary to the amounts mentioned in Ex.P9 by the counter clerk. Thus, the cross-examination of
PW1 and PW8 would reveal that without collecting statutory penalties the vehicle of PW1 was released. It is not out of place to mention that PW8 voluntarily added in his cross-examination that on being furnished information by Mithra Agencies the life tax has been calculated as
Rs.29,365/- and that he did not address any letter to Mithra Agencies. PW8 voluntarily furnished Xerox copies from his file and it is marked as Ex.P26.
Spl.Judge under P.C.Act, Hyderabad Page No.26 Judgment in C.C.No.14/2013
The same was not filed along with charge sheet. Here, it is also important to mention that according to PW5 coupled with Ex.P5 the old records are not available, as such, Mithra Agencies could not furnish the value of the vehicle in 1997. It is not known to this Court how PW8 has secured Ex.P26 without addressing any letter to Mithra Agencies. No witness is examined on behalf of prosecution to prove Ex.P26, like examining PW5. Therefore, no sanctity can be attached to Ex.P26. Thus, from the cross-examination of PW8, it is apparent on the face of record that he has acted to the tunes and directions of ACB officials and issued release order under Ex.P22 by collecting nominal amounts. According to Ex.P22, the offences have been compounded for Rs.325/- apart from collecting life tax and penalty of
Rs.24,670/-. In fact, the compounding fee as per the provisions of S.182A of the Motor Vehicle Act, is fine of Rs.1,000/- for the first offence and fine of Rs.5,000/- for any subsequent offence. But contrary to the above provisions, PW8 has collected only Rs.325/- towards compounding fee.
PW1 also admits that after the above trap his vehicle was again seized because he was using it as contract carrier though it is a non-transport vehicle, which shows the conduct of PW1 as a not law abiding citizen and committed repeated offence under Motor Vehicles Act.
39.Now the cross-examination of PW10, who is a trap laying officer, goes to show that he admits that unless an application is made to RTA, he will not release the vehicle. He verified what is the amount to be paid by
PW1 for compounding the offence, and as to how much he should pay
Spl.Judge under P.C.Act, Hyderabad Page No.27 Judgment in C.C.No.14/2013 towards life tax from the records produced by PW1, he did not find out the actual amount from the RTA before registering the case vide Ex.P28 FIR.
He also admits that he seized Ex.P9 and Ex.P10 from RTA Malakpet during the course of Ex.P16 proceedings, and Ex.P10 was an application filed for obtaining duplicate RC and the same was pending as on the date of trap and it is a blank application without completing the details except the signature of PW1. He also admits that the office-note annexed to Ex.P10 is also kept blank, which fact was also admitted by PW8. He did not find any application filed by PW1 for release of his vehicle in the documents seized from the RTA office. He does not know whether PW1 filed any application for release of his vehicle. PW10 also admits that PW1 claimed that he has paid requisite vehicle tax with fine in the form of DD and Banker’s Cheque and no amount was due. In fact, PW1 had not paid the entire amount in the non-transport counter of RTA office, Malakpet. PW10 also admits that the amount paid by PW1 is less than the amount shown in Ex.P9 and he came to know the difference only after seizure of Ex.P9, which was seized during post-trap proceedings.
40.PW10 further admits that PW1 was not entitled to get the vehicle released without paying the amount shown under Ex.P9 and that he made further admission that “it is true it was my duty to get the vehicle of PW1 released from RTA Malakpet.” He further admits that he is not supposed to interfere with the prerogative of RTA Malakpet. This admission clinchingly shows that PW10 exceeded his powers and
Spl.Judge under P.C.Act, Hyderabad Page No.28 Judgment in C.C.No.14/2013 addressed letter to PW8 on the next date of trap to release the vehicle of
PW1 though it was not his duty and it is prerogative of PW8 to release the vehicle after due compliance about payment of the penalty and life tax and other penalties. PW10 made an important admission that the compounding fee payable by PW1 was not determined till 16.05.2011, which shows that in a hasty manner a case was registered and alleged trap was laid. According to PW10, as on the date there was no application by PW1, no office note was prepared and no compounding fee was determined and PW1 did not pay any further amount after lodging Ex.P7 and that there is no record before him to show that whether PW1 paid compounding fee. During post-trap proceedings, PW10 has examined the officials, namely one Papaiah and Chandrasekhar, who were sitting in the office of AO when the trap party rushed to the office, but for the reasons best known to prosecution, these crucial and important witnesses have not been examined on behalf of the prosecution. Therefore, non-examination of the above said witnesses, is fatal to the case of prosecution. As such, an adverse inference shall be drawn against prosecution under Section 114(g) of Indian Evidence Act. More over, their version is also not incorporated in the post-trap proceedings under Ex.P16.
41.From the above said evidence, it is emerged that PW1 purchased a second-hand car from a Military Man ie., Maruti Omni and it was seized by PW4 on 02.04.2011 and issued vehicle check report under
Ex.P1 and asked PW1 to get the vehicle released from RTA office by paying
Spl.Judge under P.C.Act, Hyderabad Page No.29 Judgment in C.C.No.14/2013 necessary life tax and penalties. Therefore, PW1 approached the RTA
Malakpet non-transport counter and went to one Paul in the counter, who calculated the amount under Ex.P9 mentioning the amounts payable by him, is Rs.51,300/-, but it is established that PW1 has not paid the said amount till date and according to PW8 coupled with Exs.P9, P22, PW1 has paid only Rs.24,670/- towards life tax and compounding fee of Rs.325/-.
The evidence also reveals that this is not the first time where PW1 has violated the provisions of Motor Vehicle Act. Even after trap also, according to his admission, his vehicle was seized and he has paid penalty and without filing an application before RTA concerned he got the vehicle released through ACB officials as elicited from the cross-examination of
PW1, PW8 and PW10.
42.On a careful scrutiny of the evidence available on record, it is crystal clear that except evidence of PW1 with regard to alleged demand, there is no other evidence on behalf of the prosecution. The conduct of
PW1 is such that he is a law violator and his evidence is not convincing and not inspiring. In the absence of corroboration to his evidence, it is unsafe to come to a conclusion regarding alleged demand made by PW1.
43.Here, it is important to mention that as on the date of trap, no official favour was pending with AO1. According to the evidence of PW1, after alleged receipt of amount of Rs.5,000/- by A2 at the instance of AO1, he handed over Ex.P1 and other documents to AO1. It means by that time,
Spl.Judge under P.C.Act, Hyderabad Page No.30 Judgment in C.C.No.14/2013 no file relating to PW1 was pending with AO1 to do any official favour. As per the evidence of PW10, trap laying officer and as per Ex.P16 post-trap proceedings, PW10 has seized Exs.P1 to P6 on the date of trap itself and the same were not pending with AO1 prior to laying alleged trap.
44.Now, coming to the sanction to prosecute AO1, it is an important document without which cognizance can not be taken against AO1. The sanctioning authority is cited as LW14 namely D.Laxmi Parthasaradhi,
Principal Secretary to Government, Transport, Roads and Buildings
Department, Government of Andhra Pradesh, Hyderabad. For the reasons best known to the prosecution, he has not been examined on behalf of the prosecution to prove the sanction order. Whereas, Section Officer of
Transport Department is examined as PW9. As discussed above, he was not working in the concerned section at the time of issuing Ex.P27 and he does not have any personal knowledge about issuing Ex.P27. More over, the evidence of PW9 goes to show that on the advice of Vigilance
Commissioner Ex.P27 was issued to prosecute AO1. The sanction order has to be issued by sanctioning authority on application of mind. Since the author of Ex.P27 is not examined before this Court, therefore there is no evidence before this Court to show that the author has applied his mind and having fully satisfied with the material placed with him, accorded sanction to prosecute the AO. Therefore, non-examination of author of
Ex.P27 is fatal to the case of prosecution. It is well-settled principle of law that mere marking of a document does not amount to proof. Therefore,
Spl.Judge under P.C.Act, Hyderabad Page No.31 Judgment in C.C.No.14/2013 this Court has no hesitation to hold that Ex.P27 is not proved.
45.Learned counsel for the accused relied on a decision in this regard in CBI/SPE, Hyderabad v. P.Madhur 1996 (2) APLJ 349 HC wherein the Hon’ble High Court held that, “For the reasons stated this Court comes to the conclusion that the signature on the sanction should be proved either by the sanctioning authority or by his supporting officer or clerk who has seen the sanctioning authority signing in the sanction order or who is acquainted with the signature of the sanctioning authority. Merely filing the order termed to be sanction order alleged to have been signed by the competent authority, does not discharge the burden of the prosecution in proving the sanction according to law.”
The above said decision squarely applicable to the present case in view of the above said discussion. Therefore, once again this Court finds that the prosecution has not proved Ex.P27 sanction order in accordance with law.
46.No doubt, PW10 has seized the tainted currency of Rs.5,000/- from the possession of A2. Whether the seizure is sufficient to bring home guilt of the accused is to be considered. In N.Vijay Kumar vs. State of
Tamil Nadu 2021 Cri.L.J. 1353 the Hon’ble Supreme Court held that, “mere recovery of tainted money from the circumstances under which such money is found is not sufficient to convict
Spl.Judge under P.C.Act, Hyderabad Page No.32 Judgment in C.C.No.14/2013 the accused when substantive evidence in case is not reliable and accused is entitled for benefit of doubt.” “Mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offences under Section 7 of the P.C.Act, 1988.”
The presumption u/s.20 of the P.C.Act can only be in respect of offence under Section 7 of the P.C.Act and not for the offence under
Section 13(1) of the P.C.Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn that such gratification was received for doing the official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand.
47.With the foregoing discussion, it has been held that the prosecution has miserably failed to prove the alleged demand of illegal gratification from PW1 by AO1. In this regard, it is apt to refer to the decision in P.Satyanarayana Murthy vs. District Inspector of Police & another (2015) 10 SCC 152) wherein the Hon’ble Supreme Court held as follows:
“The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto,
Spl.Judge under P.C.Act, Hyderabad Page No.33 Judgment in C.C.No.14/2013 would thus not be sufficient to bring home the charge under there 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
Section 7 or 13 of the Act would not entail his conviction thereunder.”
By citing the above decision, the Hon’ble Supreme Court in K.
Shanthamma Vs The State of Telangana. Crl. Appeal No.261 of 2022 dt.21.02.2022, held that, “The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under section 7 of the PC Act.”
Here, it is important to mention that the office of AO is crowded with public as on the date of trap. The seat of AO is visible to the general public who visits the office. Therefore, no prudent man would demand publicly to pay the bribe amount, much less from the persons like PW1. Further more, when PW1 allegedly offered tainted currency of Rs.5,000/- AO1 warded off with his both hands, which itself indicates that there is no demand.
48.A2 is charged for the offence under Section 12 of the P.C.Act, 1988, which is an abetment. When demand of AO1 itself is not proved,
Spl.Judge under P.C.Act, Hyderabad Page No.34 Judgment in C.C.No.14/2013 therefore the question of A2 abetting the AO1 to demand and accept illegal gratification from PW1 does not arise. In P.Sirajuddin v. State of
Madras (1971 Cri.L.J. 523) Hon’ble Apex Court held that, “Before a public servant, is publicly charged with acts of dishonesty which amount to serious misdemeanour and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer.”
In this case, Ex.P7 was received by PW10 on 13.05.2011 and he himself registered a case on 16.05.2011. There is no substantial evidence to prove that a preliminary enquiry was done through someone to ascertain the genuineness of Ex.P7 contents, antecedents and reputation of AO.
49.In B.Jayaraj v. State of A.P. (2014 (2) ALD (Crl.) 73) the
Hon’ble Supreme Court held that,
“Insofar as the offence under section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes can not constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.”
In the said decision, it was also held that “mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 of the P.C.Act.”
Spl.Judge under P.C.Act, Hyderabad Page No.35 Judgment in C.C.No.14/2013
50.In State of Punjab vs. Madan Mohan Lal Verma (2013
Cri.L.J. 4050) the Hon’ble Supreme Court of India held that, “However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
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.”
In the present case also, PW1 is an interested and partisan witness and his modus operandi is to get his vehicle released by using the ACB mechanism as a tool as he is a violator of Motor Vehicle Rules and did not pay the required life tax and penalty with compounding fee, etc. as discussed supra.
51.In K.Narasimha Chary, appellant vs. State Inspector of
Police, ACB, Cuddapah District, Respondent (2003 Cri.L.J. 3315) wherein the Hon’ble High court held that “It is true that whenever a trap is successful, the version of the prosecution gains credence. However, the Supreme
Court had time and again sounded a note of caution even in respect of cases where the trap has been proved successful. It was held that circumstances such as the
Spl.Judge under P.C.Act, Hyderabad Page No.36 Judgment in C.C.No.14/2013 accused officers coming into contact with the tainted notes in the process of pushing the same from table or thwarting the attempts of the complainants to thrust the amount into the hands or pocket need to be taken into account.
Mechanical acceptance of trap was held to be prone to result in injustice.”
The above said decision squarely applicable to the present case since when PW1 tried to hand over the tainted currency AO1 warded off with his both hands.
52.For the foregoing discussion and in view of the oral and documentary evidence available on record and by taking into consideration submissions made by both parties, this Court came to a conclusion that the prosecution has miserably failed to prove demand and acceptance of illegal gratification of Rs.5,000/- from PW1 beyond reasonable doubt. Therefore, as laid down by the Hon’ble Apex Court and other Hon’ble High Courts that mere recovery of tainted currency is not sufficient to bring home guilt of the accused. Further, the prosecution also failed to prove the sanction order under Ex.P27 by examining the author of the document or the person who is acquainted with his signature or the person who has seen while signing on the sanction order. For all the reasons stated above, the prosecution failed to bring home the guilt of
AO1 and A2 for any of the offences levelled against them. As such, AO1 is found not guilty for the offence under Section 7 and 13(1)(d) read with
Spl.Judge under P.C.Act, Hyderabad Page No.37 Judgment in C.C.No.14/2013 13(2) of the P.C.Act, and A2 is found not guilty for the offence under
Section 12 of the P.C.Act, beyond all reasonable doubt. Accordingly Points
Nos.1 to 3 are answered.
POINT No.4
53.As a result, AO1 is found not guilty for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of P.C.Act,1988 and A2 is found not guilty for the offence punishable under Section 12 of the P.C.Act, 1988.
Hence, AO1 and A2 are acquitted under Section 248(1) of Cr.P.C. The bail bonds of AO1 and A2 will be in force for Six months u/s.437A of Cr.P.C.
MO3 tainted currency of Rs.5,000/- shall be confiscated to the
State and MO1, MO2, MO4 to MO10 shall be destroyed after expiry of appeal period. As per Ex.P16 Mediators Report-II, PW10 has seized personal cash of Rs.800/- from AO1. The said amount is neither deposited
before this Court nor returned to AO1. Therefore, the complainant is
directed to return the personal cash of Rs.800/- to AO1.
Dictated to the Stenographer Grade-I of Court of PSJ/ACB, transcribed and
typed by him, corrected and pronounced by me in open court on this the 21st day of November, 2022.
Sd/-
PRL.SPL. JUDGE FOR TRIAL OF SPE & ACB CASES
FAC-SPECIAL JUDGE UNDER P.C.ACT
HYDERABAD
Spl.Judge under P.C.Act, Hyderabad Page No.38 Judgment in C.C.No.14/2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF PROSECUTION
PW1: T. Venkatesh (Defacto complainant).
PW2: U. Kumar (Accompanying witness to PW1).
PW3: M. Bhupal Reddy (One of the mediators to MR.I&II)
PW4: S. Srinivas Rao (MVI)
PW5: T. R. Vasanth Rao (Sr.Manager, Mithra Agencies).
PW6: A. V. K. Naidu (Nodal Officer, Idea)
PW7: S. Deepak Kumar (Nodal Officer, Bharti Airtel)
PW8: Y. Satyanarayana Rao (then RTO, Malakpet)
PW9: M. Bhanu Kiran (Section Officer, Transport Dept.)
PW10: N. Chandrasekhar (then DSP, ACB, Trap laying officer)
PW11: P. Satyanarayana (Investigating Officer)
PW12: K. Sunil (Investigating Officer)
WITNESSES EXAMINED ON BEHALF OF DEFENCE/ACCUSED : NIL.
EXHIBITS MARKED ON BEHALF OF PROSECUTION:
EX.P-1: Vehicle Check Report dt.02.04.2011 of
Ex.P-2: Xerox copies of Vehicle Documents.
Ex.P-3: Xerox copy of D.D. for Rs.29,570/- dated 06.04.2011.
Ex.P-4: Xerox copy of D.D. for Rs.1,125/- dated 26.04.2011.
Ex.P-5: Letter No.B4/HE/2011, Dt.03.05.2011, addressed to Mithra Agencies,
Himayathnagar, Hyderabad.
EX.P-6: Xerox copies of two D.D.’s for an amount of Rs.6,600/- and
Rs.1,000/-, Total Rs.7,600/- dated 12.5.2011.
Ex.P-7: Original Complaint Report dt.13.05.2011.
Ex.P-8: Rough Sketch of the Scene of offence dated 16.5.2011.
EX.P-9: Receipt/Chit showing the tax and penalty payable total Rs.51,300/-.
Spl.Judge under P.C.Act, Hyderabad Page No.39 Judgment in C.C.No.14/2013
EX.P-10: Application for duplicate RC book.
EX.P-11: Copy of Complaint dt.13.05.2011.
Ex.P-12: Xerox copy of R.C.
EX.P-13: Copy of Banker’s Cheque No.983155.
Ex.P-14: Mediators Report–I dt.16.05.2011.
Ex.P-15: Attendance Register of the O/o.RTA, Malakpet.
Ex.P-16: Mediator Report–II dated 16.05.2011.
Ex.P-17: Information pertains to Mobile No.9989857539 dated 16.05.2011.
Ex.P-18: Letter along with information pertains to
Mobile No.9989857539, dated 02.06.2011.
Ex.P-19: Attested copy of circular memo No.8/10118/C2/05, dated 02.3.2006.
Ex.P-20: Attested copy of citizen charter of Transport Department.
Ex.P-21: Attested copy of letter No.483/B4/2011 dated 17.5.2011 addressed by PW8 to the Jt.Transport Commissioner intimating trap of AO.
Ex.P-22: Attested copy of release order R.No.483/A1/HE/2011
dated 17.05.2011 issued by PW8.
Ex.P-23: Attested copy of proceedings of the release order dated 24.05.2011.
Ex.P-24: Attested copy of receipt for payment of cash of Rs.330/-dt.27.5.2011.
Ex.P-25: Attested copy of receipt of DD for Rs.29,570/-.
Ex.P-26: Xerox copy of quotation / Invoice issued by the Mithra Agenices.
Ex.P-27: Original Prosecution sanction order vide GO.Ms.No.1, dt.1.1.2013.
Ex.P-28: First Information Report dt.16.5.2011.
EXHIBITS MARKED ON BEHALF OF DEFENCE/ACCUSED : NIL.
MATERIAL OBJECTS MARKED
MO-1:- Sample of phenolphthalein powder.
MO-2:- Sample of sodium carbonate powder.
MO-3:- Tainted currency of Rs. 5,000/-.
MO-4:- Jean pant of A2.
Spl.Judge under P.C.Act, Hyderabad Page No.40 Judgment in C.C.No.14/2013
MO-5:- Right hand wash of A2.
MO-6:- Left hand wash of A2.
MO-7:- Wash of inner lining of the pant of A2.
MO-8:- Right hand wash of AO1.
MO-9:- Left hand wash of AO1.
MO-10:- Sample of sodium carbonate powder used during MR-II proceedings.
Sd/-
PRL.SPL. JUDGE FOR TRIAL OF SPE & ACB CASES
FAC-SPECIAL JUDGE UNDER P.C.ACT
HYDERABAD