Sri M. Johnson
Spl Judge for Trail of SPE and ACB Cases -cum- VI Addl District and Sessions Judge Karimnagar
Karimnagar, PDJ Court Complex · Karimnagar · Telangana
Based on 13 recent ordersSri M. Johnson, Spl Judge for Trail of SPE and ACB Cases -cum- VI Addl District and Sessions Judge Karimnagar, is posted at Karimnagar, PDJ Court Complex, Karimnagar, Telangana, India. 13 court orders on record since 2019. 5 judgments with full text available. Primarily handles CC, CRL cases.
Featured Judgments
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IN THE COURT OF THE SPL. JUDGE FOR TRIAL OF SPE & A.C.B
CASES : AT KARIMNAGAR.
PRESENT : SRI M.JOHNSON, Spl.Judge for trial of SPE & A.C.B Cases,
K A R I M N A G A R.
Dated this the 13 th day of September, 2019.
CALENDAR CASE No. 117 of 2015
Between:
The State through Inspector of Police, CIU, Anti-Corruption Bureau, Hyderabad. … Complainant
AND
Dr.Rentala Ramamurthy S/o Balaguru Murthy, 56 Yrs, Occ: District Medical & Health Officer O/o District Medical & Health Officer, Nizamabad, R/o Plot No. 140, MIG-2, A.P.H.B. Colony, Nizamabad.
...Accused Officer
This case is coming for final hearing on 6-9-2019 in the presence of Special Public Prosecutor for the state and of Sri E.V.M.Rao, Advocate for the Accused, 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.The Inspector of Police, CIU, Anti-Corruption Bureau,
Hyderabad has filed the charge sheet in Cr.No. 27/ACB-
CIU/HYD/2009 against the above named accused Officer to prosecute him for the offences u/s. 7 and 13(1)(d) r/w 13(2) of
Prevention of Corruption Act, 1988 2
2.According to the charge sheet, case of the prosecution is that the defacto-complainant-PW1-P.Gangaram has approached the office of Anti Corruption Bureau, CIU, Hyderabad with a written report in Telugu stating that he is working as a driver in the Office of District Medical and Health Office, Nizamabad and the accused officer is working as District Medical and Health
Officer in the same office and the defacto-complainan-PW1 is working as driver since 2001 in the office of District Medical &
Health Officer. On 24.6.2009 the accused officer has passed a transfer order of the defacto-complainant-PW1 wherein he was directed to go on deputation as driver to PHC, Lingampet vide
Order No. RC/964/E6/2009, dt. 24.6.2009. After receipt of such orders, the defacto-complainant-PW1 has approached the
District Medical & Health Officer i.e., the accused officer herein and gave a representation that his parents are old aged and suffering from ill-health and requested to cancel the deputation to Lingampet and retain him at Nizamabad itself. Thereby the accused officer has demanded Rs.10,000/- as bribe to modify the orders or cancellation of deputation. However, the defacto- complainan-PW1 unable to pay the demanded amount requested him to consider his representation by paying
Rs.5,000/-. It is further alleged that after accepting Rs.5,000/- he demanded to pay the remaining balance later. However, since 25.6.2009 the defacto-complainan-PW1 continued at the same station and he was allotted with a vehicle bearing No, AP- 3 28-W-2404 and directed him to approach the Superintendent for allotment of duties. It is further stated in the complaint, the accused officer has demanded the remaining balance of
Rs.5,000/- on many occasions. Subsequently on 4.8.2009 when the defacto-complainan-PW1 approached accused officer and enquired about the orders of transfer and cancellation of deputation and again the accused officer has demanded
Rs.5,000/- and though eh requested the accused officer to consider his representation stating that he is in financial troubles and request for issue orders in his favour, accused officer has reduced the bribe amount from Rs.5,000/- to
Rs.3,500/- and unless that amount is given, he will not consider the representation. Since the complainant-PW1 is not willing to pay the demanded bribe amount to the accused officer,. He filed the report under Ex.P3 to take necessary action against accused officer. Basing on the contents of the report under Ex.P3, the then Inspector, ACB/CIU-PW8-U.S.SriKrishnudu has registered the case under Sec. 7 of P.C.Act and issued FIR as per E.P17 and then taken up further investigation.
3.According to prosecution case, PW8 (U.S.Srikrishnudu,
Inspector of Police) has investigated into the case and recorded the statement of PW1 and also conducted some discrete enquiries against accused officer and the discrete enquiries reveals that the contents of the complaint of PW1 are genuine 4 and the reputation of the accused officer is not good. As such during the course of further investigation PW8 has secured the presence of two mediator i.e., PW2-G.Yeshwanth Rao and LW3-
C.Suresh Reddy and also secured the presence of PW1 to the office of Anti Corruption Bureau, Central Investigation Unit at
Hyderabad. Then the defacto-complainan-PW1 came to the
Office of the ACB, CIU, Hyderabad on 7.8.2009 at about 4.00
AM along with proposed bribe amount of Rs.3,500/- and after observing all legal formalities, the trap was conducted on 7.8.2009 and according to the charge sheet during the course of trap, PW1 after leaving the trap party proceeded to the house of accused officer and knocked the door and then accused officer came out from the house and on seeing PW1, asked about the bribe amount of Rs.3,500/- and on his positive reply the accused officer allowed him into the house to the drawing room and asked to pay the bribe amount. Then PW1 took out the tainted bribe amount from his left side shirt pocket and offered same to accused officer and he has taken the amount with his right hand, counted the same with both hands and assured PW1 that he will issue transfer order as stated earlier as driver to the vehicle bearing No. AP-28-W-2404 at Nizamabad town by cancelling the deputation to Lingampet PHC.
Immediately phenolphthalein test was conducted on both the hands to the accused officer and yielded positive result and the tainted amount of Rs.3,500/- was recovered from the top of the 5 table under a brown cover situated in the drawing room of accused officer residence. The phenolphthalein test conducted over the top of the table situated in the drawing room with the help of cotton swab collecting dust particles, where the tainted bribe amount was came into contact yielded positive result. The resultant solutions were transferred into separate glass bottles duly sealed labeled and attested by mediators. The said resultant solution, tainted bribe amount of Rs.3,500/- were seized by PW8 and thereby the mediator report II was prepared then and there. Thereafter the PW8 arrested the accused officer on the same day at about 2.00 PM and produced him
before the Court for the purpose of judicial remand.
Furthermore PW8 examined and recorded the statements of
PW1, PW3 to PW5 and got recorded the statement of PW1 through the JMFC/Metropolitan Magistrate(LW7). Subsequently, the job description particulars of accused officer obtained from
PW7 and thereafter obtained sanction orders from competent authority vide G.O.Ms.No. 174/ dt. 29.7.2010 wherein the competent authority has accorded sanction to prosecute the accused officer herein. After conclusion of the investigation
PW9 -T.Prabhakar, Inspector of Police, ACB, CIU, has filed charge sheet against the accused officer herein for the offence u/s. 7 and 13(1)(d) r/w 13(2) of P.C.Act.
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4.After filing of the charge sheet the then Presiding Officer of the Court of the Prl.Spl.Judge for SPE & ACB cases Hyderabad has taken cognizance of the offence under section 7 and 13(1)
(d) r/w 13(2) of Prevention of Corruption Act, 1988 and registered the case as CC.No. 45 of 2011 and also complied the provisions u/s. 207 Cr.P.C., and conducted examination u/s.
239 Cr.P.C. Charge framed and read over to the accused officer but he pleaded not guilty and claimed to be tried and the evidence of prosecution also commenced before that Court and subsequently, after establishment of this Court, the case has been transferred to this Court, on the point of jurisdiction and renumbered as CC.No. 117 of 2015.
5.During the course of trial, on behalf of the prosecution,
Pws 1 to 9 were examined and Ex.P1 to P17 were marked and also Mos 1 to 7 were marked.
6.After completion of prosecution evidence, accused examined u/s. 313 Cr.P.C., by explaining the incriminating evidence on record to the accused in vernacular language for which the accused has denied the prosecution evidence and when opportunity is given the accused officer and his counsel reported no defence evidence on his behalf.
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7. During the course of arguments, Learned Spl.Public
Prosecutor submitted his arguments at length and also filed case laws through memo, whereas, the Learned Counsel appearing on behalf of the accused officer, submitted his oral contentions, he also filed certain citations along with memo.
8.Now, the point for determination is whether the prosecution is able to prove the charge u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the accused beyond reasonable doubt?
9. In order to prove the charge against accused officer herein, the prosecution must prove the essential ingredients of offence u/s. 7 r/w 13(1)(d) r/w 13(2) of Prevention of Corruption
Act, 1988, the following factors must be proved.
i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
Iii) for himself or for any other person.
iv) Such gratification was not a remuneration to which the accused was legally entitled.
v) The accused accepted such gratification as a motive or reward for:-
a) doing or forbearing to do an official act: or
b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions: or 8
c) rendering or attempting to render any service or disservice to some one with the
Central or any state Government or
Parliament or the Legislature of any State of with any local authority, Corporation or
Government company referred to in Sec. 2
Clause (c) or with any public servant whether named or otherwise.
For the offence u/s. 13(1)(d) the ingredients of this clause are
1) He should hold office as Public Servant.
2) He should obtain any valuable thing or pecuniary advantage for any person
3) Such obtaining of valuable thing or pecuniary advantage is without any public interest.
A reading of this provision would make it amply clear that all the three wings of clause
(d) of Sec.13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of word or (at the end of each sub clause). Thus under sec. 13(1)
(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under sec. 13(1)(d) of the
Prevention of Corruption Act, 1988. on the same reasoning “obtaining a valuable thing or pecuniary advantage merely by abusing official position “ as contemplated u/s.13(1)
(d)(ii) in itself would satisfy the ingredients of 9
Criminal misconduct under Sec. 13(1)(d)(i) of the Act, 1988.
10.Keeping in view, the above essential ingredients of the offence, I have gone through the evidence adduced by the prosecution. In all prosecution has examined Pws 1 to 9 and
Ex.P1 to P17 were marked and Mos 1 to 8 are marked.
11.Now coming to the evidence on record. PW1-P.Gangaram, the defacto-complainant, who lodged report under Ex.P3 has deposed in his evidence that he is working as driver in the Office of District Medical & Health Officer, Nizamabad since 2001 and the accused Officer also working in the same office and District
Medical & Health Officer from 2002 to 7.8.2009. It is further deposed in the evidence of PW1 that on 24.6.2009 the accused officer has passed an order of deputation of PW1 to PHC,
Lingampet vide Proceedings dt. 24.6.2009marked as Ex.P1.
Immediately after receipt of such orders, PW1 has approached accused officer and requested him to cancel the deputation from Nizamabad to Lingampet stating that his parents suffering from ill-health and his presence is very much necessary at the
Head quarters i.e., at Nizamabad. PW1 also deposed that he has submitted representation to the accused officer under Ex.P2
dt. 25.6.2009 for cancellation of his deputation, but accused
officer has demanded Rs.10,000/- to consider his request and 10 for cancellation of the deputation thereby PW1 expressing his inability to pay such bribe amount of Rs.10,000/-, the accused officer did not consider and still demanded Rs.10,000/-. As such
PW1 gave Rs.5,000/- to the accused officer instantaneously and requested to cancel the deputation promising to pay the remaining amount later. He also deposed that after receipt of
Rs.5,000/- the accused officer directed the Superintendent of the office by making an endorsement to allot him duty on vehicle bearing No.AP-28-W-2404 pertaining to Matha Sishu
Rakshana Wing. As such PW1 went to the Superintendent and met him for allotment of duty and also consulted with the concerned Section Clerk namely Mr.Shakeel. However, it is the case of PW1 that his request will be considered in the due course within one or 1 ½ month, but in the first week of August, 2009 accused officer has demanded to bring remaining bribe amount of Rs.5,000/- to continue him at Nizamabad, however on request the amount of Rs.5,000/- was reduced to Rs.3,500/- and as such on 6.8.2009 the PW1 went to the Office of ACB,
Hyderabad and lodged Ex.P3 report to take necessary action against the accused officer who demanded the bribe amount of
Rs.3,500/- for cancellation of the deputation.
12.PW1 further deposed in his evidence in chief that on 7-8- 2009 he went to the Office of Dy.Superintendent of Police at about 4.00 AM as directed and after taking his signature on FIR, 11
Dy.Superintendent of Police called upon two mediators and introduced them and further questioned about the proposed bribe amount of Rs.3,500/-. So that, he has handed over
Rs.3,500/- with denomination of Rs.500/- notes and mediators noted down the currency note numbers on a separate paper and then Dy.Superintendent of Police has secured the presence of constable A.Raju and directed him to apply phenolphthalein powder to the said currency notes and accordingly he applied the chemical powder to the tainted currency notes and further demonstrated Sodium Carbonate Solution test and constable who applied the powder has rinsed his hand fingers in the plain water in the glasses and the colour of water changed to pink colour whereas the mediators also rinsed their fingers in the water, but colour of water did not change and accordingly the significance of the test was explained to mediators as well as
PW1. All these proceedings are reduced into writing as a mediators report under Ex.P4 and the mediators as well as ACB officials affixed their signatures on Ex.P4. He further deposed that on the same day at about 5.00 AM the Dy.Superintendent of Police along with his staff and mediators and PW1 together started in a Tata sumo vehicle from the office of ACB, Hyderabad and proceeded to the house of the accused officer situated at housing colony, Nizamabad and reached by 7.15 AM. Then their vehicle was parked at a distance of 10 to 15 yards away from the house of the accused officer and after getting down the 12 vehicle, the Dy.Superintendent of Police, ACB has directed PW1 to proceed to the house of accused officer and given the bribe amount if he demanded and immediately after accepting, directed him to give a signal by wiping his face with kerchief.
Accordingly PW1 entered into the house of the accused at 8.00
AM and the accused opened the door and invited him and immediately asked about the bribe amount and PW1 gave affirmative reply and asked about that amount and PW1 took the bribe amount from the shirt pocket and handed over the amount to the accused officer and accused officer received the same with his right hand and counted with his both hands and asked PW1 to come to office to take the order. Immediately after receiving the amount by accused officer, PW1 has came out and gave pre- arranged signal to the trap party by wiping his face with kerchief.
Then the trap party consisting of Dy.Superintendent of Police,
Inspectors and two mediators entered into the house of accused directing PW1 to stay away for some time. He also deposed that after some time, Dy.Superintendent of Police called him inside the house of accused officer and questioned as to what happened after leaving the trap party till he gave pre arranged signal. Then he revealed the entire fact that he handed over the bribe amount of Rs.3,000/- to accused officer and he counted it with his both hands. Subsequently after the trap, PW1 has received summons from the court of Judicial
Magistrate at Nampalli and he appeared before the Court and
Learned Judicial Magistrate has recorded his statement u/s. 164
Cr.P.C. Accordingly, PW1 has deposed with regard to the contents of 13
Ex.P3 and the action taken by ACB officials under Ex.P4 Mediator
Report-I and also Mediator Report-II.
13.Next considering the evidence of mediators. In this case, prosecution has cited two mediators i.e., PW2-G.Yeshwanth Rao and
LW3-V.Suresh Babu. Out of which prosecution has examined mediators as PW2-G.Yeshwanth Rao and another mediator is not examined. However, PW2-G.Yeshwanth Rao has deposed the facts relating to Ex.P4 Mediator Report-I and Ex.P5 Mediator Report-II supporting the testimony of PW1. In nutshell, PW2 has deposed in his evidence on 6.8.2009 at about 6.00 PM he was directed by the
Secretary, A.P.Housing Board to attend the office of ACB on 7.8.2009 at 4.00 AM and accordingly he along with LW3-V.Suresh Babu went to the office of Anti Corruption Bureau, Central Investigation Unit,
Hyderabad and met the then Dy.Superintendent of Police namely
Srikrishnudu and by the time PW1 also came over there and DSP has introduced PW1 to them and then the copy of the complaint of PW1 has been shown to them by the Dy.Superintendent of Police and after going through it, ascertained the correctness of the contents with PW1 and then put their initials on the copy of the complaint which is marked as Ex.P3. Further, Dy.Superintendent of Police questioned PW1 about any financial transactions or disputes with the accused officer and PW1 replied about that there are no such disputes or any financial transactions with the accused officer. Then cash of Rs.3,500/- produced by PW2 was shown to them and then they noted down note numbers on separate sheet as directed by the Dy.Superintendent of Police. Then PW2 also deposed similar to 14
PW1 about the phenolphthalein test conducted at the office of the
ACB, CIU, Hyderabad and the instructions given to PW1 at the time of the trap to be followed and entire proceedings are reduced into writing by way of Mediator Report-I report marked as Ex.P4. The PW2 also deposed in his evidence that after completion of pre trap proceedings at the office of ACB, CIU, Hyderabad by 5.00 AM, they all started in a TATA Sumo vehicle on 7.8.2009 at about 5.05 Am and proceeded to Nizamabad Housing Board colony and rushed there by 7.50 AM and the Dy.Superintendent of Police has stopped the vehicle near to the house of accused officer at a distance of 50 metres and after taking vantage position, directed PW1 to proceed to the house of accused officer and given bribe amount/tainted amount to the accused officer if he demanded but not otherwise. Accordingly, at about 8.00 AM PW1 went to the house of accused officer and after some time he came back and gave pre arranged signal as instructed earlier and then the DSP along with his team and the mediators rushed to the house of the accused officer and knocked the door and the accused officer came out and then Dy.Superintendent of
Police has disclosed his identity to the accused officer and also told him the purpose of coming and immediately accused officer has become shocked and become stunned. Immediately, the
Dy.Superintendent of Police prepared Sodium Carbonate Solution in two separate glass tumblers and asked accused officer to dip his left and right hand fingers in two glass tumblers separately, on doing so, both the solutions turned pink. Immediately, the
Dy.Superintendent of Police questioned whether he has demanded bribe amount from anybody just before his arrival and 15 then version of accused officer was recorded. Then
Dy.Superintendent of Police questioned accused officer about the tainted amount and the amount was found on the table underneath brown cover. Then Dy.Superintendent of Police directed PW2 to pick up the said amount and have picked up the same and verified with the currency note numbers prepared earlier. Thereby the proceedings under Ex.P4 Mediator Report-I was prepared and the amount of Rs.3,500/- was seized. PW2 also deposed that Sodium
Carbonate Solution test conducted to the subject portion of the table underneath portion of cover with the help of cotton swab and the solution also turned into pink colour. Hence, the Dy.Superintendent of
Police has seized the resultant solutions in two separate bottles duly sealed and attested by the mediators. Further, Dy.Superintendent of
Police has asked to check cover which contains inspection report addressed to District Medical & Health Officer by District Medical &
Health Officer, Kamareddy and Dy.Superintendent of Police has taken photocopy of the records and then secured the presence of PW1 and questioned him as to what happened and his version was also recorded. Later Dy.Superintendent of Police called upon Junior
Assistant namely Shakeel and also secured the presence of one
Suresh Reddy and recorded his statement and also seized file containing 12 sheets. Further PW2 also deposed that the version of accused officer was also recorded and confronted the same to PW1 and thereafter after preparation of Ex.P5 Mediator Report-II a rough sketch was also drawn under Ex.P6. Prosecution also got marked
MOs 1 to 7 through PW2 and also marked Ex.P7 file pertaining to transfer of PW1, Ex.P8 is the xerox copy of inward register, ExP9 is 16 the attendance register of NGO's, ExP10 is the Attendance Register of Gazetted officers, ExP11 is made up file containing one brown colour cover, ExP12 is the letter dt. 7.11.2009 (4 sheets).
14.Looking into the evidence in chief of Pws 1 & 2, the evidence of
PW8-U.S.Srikrishnudu, the then Dy.Superintendent of Police and Trap
Laying Officer is also taken into consideration and he also deposed about the report under Ex.P3 lodged by PW1 at the office of ACB, CIU,
Hyderabad on 6.8.2009. According to him, he received the report of
PW1 on 6.8.2009 at about 1.15 AM and then he made an endorsement on it to verify the contents and to conduct discrete enquiry as to the allegations of PW1 against accused officer. The after ascertaining the correctness of the allegations, he requested the
Secretary AP Housing Board to send two responsible persons to act as mediators and accordingly, the Secretary has sent PW2 and LW3-
Suresh Reddy to his office on 7.8.2009 at 4.00 A.M. and then after their arrival, he introduced PW1 to them and also verified with the currency notes produced by PW1 to the tune of Rs.3,500/- and noted down the currency note numbers in a separate sheet for the purpose of trap against accused officer and after verifying the antecedents and after obtaining permission from competent authority, a case was registered and issued FIR under Ex.P17. He also obtained signature of the complainant in the FIR. Meanwhile mediators Pw2 and Lw.3 Sureshbabu attended his office. After arrival of mediators phenolphthalein test was demonstrated to all the participants and after admitting the facts by PW1 in his report, he also enquired about the disputes and financial dealings if any and 17
PW1 revealed that there are no such disputes or any financial dealings with the accused officer, as such the Dy.Superintendent of
Police has instructed PW1 to give the amount to the accused officer at the time of trap if he demanded but not otherwise. Accordingly,
PW8 also supported the version of Pws 1 and 2. He further deposed about the pre arranged signal to be given by PW1 if the accused officer demanded bribe amount by wiping his face with hand kerchief.
He also specifically directed PW1 not to shake his hands with accused officer before and after acceptance of bribe amount. PW8 has also deposed all material facts containing in Ex.P4 and P5 mediators reports. Though the Constable EVSN Raju, PC 1217 neither cited nor examined as witness, the mediators and PW8 and also PW1 deposed about the demonstration of chemical test conducted at the time of
Mediator Report-I as well as Mediator Report-II. According to PW8
Mediator Report-I proceedings were conducted at the office of
ACB/CIU/HYD officer and commenced at about 4.20 AM and concluded at 5.00 AM. Thereby, they all started from the Hyderabad in a vehicle, TATA sumo, and proceeded to Nizamabad and reached the house of accused officer situated at Housing Board colony,
Nizamabad by 7.50 AM and after getting down the vehicle at a distance, the trap party members took vantage positions around the house of accused officer and then sent PW1 to the house of accused officer for the purpose of trap as against accused officer. According to PW8, at about 8.05 A.M. Pw1 came out from the house of accused officer and gave pre-arranged, immediately they rushed to the house of accused officer, knocked the door and he came out and then
Dy.Superintendent of Police has introduced himself to the accused 18 officer and also informed him about the purpose of his visit and immediately questioned about the bribe amount and as per the statement of accused officer the the bribe amount was seized from the place where it was kept I..e, underneath brown colour cover (ExP11). Thereafter, in the presence of mediators, phenolphthalein test was conducted in two separate glass tumblers asking accused officer to dip his both hand fingers separately in each glass and for both right hand and left hand washes turned into pink colour. The resultant solution also seized in a separate glass bottles duly sealed in the presence of mediators. The bribe amount was also seized after tallying with the note numbers. The brought colour cover was also seized and marked as Ex.P11. PW8 also deposed about the chemical test conducted over MO1 cash of Rs.3,500/-. The transfer proceedings of PW1 also seized. After seizure of Ex.P11 and preparation of Ex.P5 Mediator Report-II, PW8 has secured the presence of PW1 and questioned as to what happened after his leaving trap party and till he relayed the signal and PW1 narrated the sequence of all events from beginning to end and the same is mentioned in Ex.P5.
15.In addition to the above evidence, PW8 has specifically deposed that after Ex.P5 proceedings, he secured the presence of PW4-
Madhusudhan and recorded his statement and he produced the connected file pertaining to transfer order of PW1. Thereafter, he also secured the presence of PW3-Suresh Reddy and recorded his statement. Then he seized a file containing 12 sheets under Ex.P7 pertaining to transfer of PW1 and others.
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16.PW8 further deposed in his evidence in chief that he also questioned accused officer about the demand and acceptance of bribe from Pw1 and recorded the version of accused officer as well as the version of PW1. Then rough sketch under Ex.P6 was prepared and also seized samples of sodium carbonate powder and after completion of formalities, he arrested accused officer at 2.00 PM and the post trap proceedings under Ex.P5 concluded at 2.10 PM.
Copy of Mediator Report-II (ExP5) was also served on accused by taking his signature.
17.Accordingly, the evidence of PW1, PW2 and PW8 relating to pre trap and post trap proceedings and also arrest of the accused is concerned, their evidence in chief is in corroboration with each other.
18.In view of the categorical evidence of Pws1 & 2 relating to
Mediator Report-I and Mediator Report-II Reports marked as Ex.P4 and
P5, it is also necessary to go through their evidence in cross- examination to consider whether the defence of accused officer that he never demanded bribe amount as alleged by PW1 and the defence of the accused officer is that he has given money to the PW1 when he was going to Shabarimalai and the said amount was returned by PW1 to him and due to differences regarding his transfer or deputation to some other station, PW1 has given a false report with the ACB officials purposefully and under the guise of refund of the amount to the accused officer, the trap was laid and falsely implicated him in the present case. Whether the defence of the accused officer is to be 20 accepted or not is to be decided on the overall facts and circumstances of the case. Since the presumption is available under sec.20 of P.C.Act, it is just and necessary to scrutinize the evidence adduced on behalf of prosecution. It is true as contended by Learned defence counsel that the accused officer is superior to the PW1 and he is a District level Officer and Head of District Medical & Health
Office and whereas PW1 is last cadre employee and working as driver under accused officer along with other drivers. The transfer or deputation order passed not only against PW1 but also in respect of other drivers or staff members, but PW1 is alone aggrieved by the orders of the deputation and requested to cancel the same by submitting a representation and the same is considered and PW1 is continued to be worked in the same post at Nizamabad, and hence cancellation of deputation orders is immaterial since he was allowed to work at same station. Moreover, it is the main contention of the
Learned defence counsel that absolutely there is no reason to believe that accused Officer being District Medical & Health Officer demanded bribe from his subordinate and last cadre employee in the capacity of driver to bring the amount of Rs.10,000/- or Rs.5,000/- as bribe for cancellation on deputation. As a matter of fact, accused officer being District Medical & Health Officer, Head of the
Department in the District level and also being controlling officer he can pass orders of transfer of any employee working under him and as per exigencies of the work at different PHCs, the order of deputation is routine work in discharge of his duties and whether it is to be cancelled or not is within the discretion of the accused officer and PW1 got no right to seek cancellation or his retention at the same 21 station where he is working since 2001. Therefore, the consideration of cancellation of deputation can not be termed as an official act towards PW1.
19.At the same time, it is also the contention of the Ld.Spl.Public
Prosecutor in his written arguments that PW1 approached accused officer on 25.6.2009 with a request to cancel deputation on the ground that his parents are suffering from ill-health. He also contended that PW1 already gave Rs.5,000/- to the accused officer and he further demanded the remaining amount of Rs.5,000/- and subsequently reduced the same to Rs.3,500/-. As such evidence of
PW1 and the evidence of PW2 is also in corroboration with each other and prosecution case is proved in all material particulars and the defence of the accused that Rs.3,500/- was the due amount on the part of PW1 and the same is returned to him on the day is a false story. Keeping in view the contentions of both sides, and the evidence in chief of PWs1,2, and PW8, I have carefully scrutinized the evidence of PW1 in cross-examination. PW1 has admitted the fact that he was driver of accused officer from time to time since 2008 and even after his deputation, he also received his salary for the month of July, 2009 from the Office of the District Medical & Health
Officer and he continued to receive his salary even for the month of
August, 2009 and he categorically admitted in the cross-examination that “*….while working before accused officer, I have no any grievance against him and I have no complaint 22 against him. accused officer had a good reputation as good officer.
*….I profess Hindu religion. I also used to observe
Ayyappa Diksha.
*….There is no other source except my salary and I am a sole bread winner of entire family is my salary will be just sufficient to meet monthly expenditure.
*….Every year I used to attend for Jyothi darshan at
Ayyappa Swamy Temple in the month of January.
*….For Jyothi, I have to go to Shabarimalai in Kerala.
But denied the suggestion of taking Rs.3,500/- from accused officer to perform the pilgrimage tour in the month of January, 2009. He also further admitted “*….my salary will be credited to the bank account on every month and there was no impact on my salary for the month of
June and July.
*…. Consequent to Ex.P1 orders, I did not have any official favour from accused officer during August, 2009.
*…. I know giving bribe is an offence.
*….I know if anybody demands bribe I have to approach ACB officials. I had no occasion to lodge any com,plaint with ACB officers prior to Ex.P3. (Report of PW-1) *…. I signed Ex.P10 attendance Register on every working day afater 24.6.2009.
*…. I am not scribe of Ex.P2. The moment I gave Ex.P2 to the accused, he has immediately made endorsement on it wherein my representation was considered and the vehicle bearing No.
AP-28-W-2404 was allotted to me.
PW1 also deposed in his cross-examination, as hereunder *…. I did not approach any of my relatives or friends on 25.6.2009. I know there is ACB office at 23
Nizamabad and my working place is also at
Nizamabad.
*….It is true without applying leave or absenting from duties I can approach ACB officials in
Nizamabad. I did not go to the office of NIzamabad at any point of time. I do not know the hierarchy of
ACB officials at Hyderabad. I never informed about the demand of bribe by the accused officer to any of my close associates.
*…. After lodging complaint on 6.8.2009 I did not go back to Nizamabad and I went to Nizamabad along with the trap party members on the next day i.e., on 7.8.2009. I stay in ACB office room from the time of lodging Ex.P3 till he came to Nizamabad along with the trap party.
*….I did not have any idea before going to ACB office, Hyderabad on 6.8.2009 whether the ACB officials asked me to produce any amount for the purpose of the case. My brother-in-law resides at
Balanagar and on that night I stayed at the house of my brother-in-law. I did not inform to my brother-in- law the purpose for which I came to Hyderabad.
*….I brought Rs.5,000/- while coming to Hyderabad in normal course I will not carry Rs.5,000/- with me.
He further added that he went outside as such he carried Rs.5,000/-.
*….I did not borrowed from anybody. I did not withdraw from my bank account though my salary was credited in the bank account.
20.In further cross-examination at Page No.9, it is elicited from PW1 that on the date of trap, 24 “*….except attender, camp clerk and driver, I did not see any of our staff on that day.
*…. I did not observe LW4-Suresh reddy,
LW5-Madhusudhan Reddy and LW6-
Bhadruddin, since they did not come to the house of accused on that day.
*….ACB officials were there at the house of accused till 2.00 to 2.30 PM on that day.
*….I know accused will come to his office in normal course at 10.00 or 10.30
AM.
*….ACB officials brought me to the house of accused on 7.8.2009, accused officer did not ask me to come to his house.
*….I also did not mention in Ex.P3 as to when and where the alleged bribe has to be handed over to the accused.
*…. I knocked the door of the house of accused. On opening the door, accused officer asked me as to why I came to his hosueby mentioning my name as
Gangaram.
and, denied the suggestion that he came to return the borrowed amount and then he gave Rs.3,500/- to the accused officer and thereby given the signal to the ACB officials.
25
21.Learned counsel for AO also pointed out in further cross- examination PW1, as admitted that he did not state before the
Magistrate in 164 Cr.P.C. statement that
“*….I procured Rs.5,000/- and paid to the accused on 25.6.2009. Except the tainted currency notes I never paid any bribe to anybody. I do not know the names of ACB officials and their designations before going to
ACB office at Hyderabad on 6.8.2009 and also
Gangareddy who drafted Ex.P3.
22.Accordingly pointing out the evidence in cross- examination, it is the contention of the counsel for the accused officer that testimony of PW1 is inconsistent with regard to the real facts and the answers given by PW1 are cursorily pointed out by the Learned defence counsel as elicited above and contended that the PW1 went to the house of accused officer only to return the amount of Rs.3,500/- and as admitted by him accused officer has not asked him to come to his house and absolutely he has no any grievance against accused officer in the matter. Therefore the evidence of PW1 is not trustworthy and reliable to come to conclusion that the accused officer has demanded the bribe amount without there being any official act is pending.
23.Similarly, PW2-Yeshwanth Rao was also subjected to cross- examination in the same lines by putting forth the defence of 26 the accused. In the cross-examination of PW2, it is elicited from him that on 6.8.2009 as per the instructions of the secretary, he went to the ACB office on 7.8.2009 at about 4.00 AM and no return instructions were given to that effect. PW2 further stated that he has no idea whether FIR was registered by the time or not. It is further admitted by him that it is true the place, date and time of alleged bribe is not mentioned in the complaint. It is true Ex.P3 shows that PW1 was working as driver in the office of District Medical & Health Officer, Nizamabad by the date of report Ex.P3 dt. 6.8.2009. It is true Ex.P3 shows that on 6.8.2009 accused officer and PW1 were employees of the same office inspite of alleged transfer on 24.6.2009.
24. PW2 also stated that he did not enquire with PW1 how he is describing himself as employee of District Medical & Health
Officer as on 6.8.2009 when he was transferred to Lingampet on 24.6.2009. It is mentioned in Ex.P3 that PW1 was in financial troubles and did not mention from whom he secured Rs.5,000/-.
PW2 admitted in his cross-examination that it is true there is no specific mention in Ex.P3 that PW1 has paid alleged bribe of
Rs.5,000/- to accused officer. It is also elicited from PW2 that this witness PW2 has already acted as mediator earlier in another ACB case. He further stated that he has no idea whether all pages of panchanama shall be signed by the 27 mediators. It is admitted by him that he put his signature at the last page only in Ex.P5.
25.Referring the evidence in cross-examination of PW1,
Learned counsel for the accused also attacked on the evidence in cross-examination of PW8 and further elicited from him that
PW8 has not visited the Nizamabad to conduct discrete enquiries and he has not filed any record to show the antecedents of PW1 and the reputation of accused officer. He did not specify in the endorsement whose antecedents were verified. He did not file any copy of written requisition that was given to the mediators to secure their presence.
26.PW8 also stated that he do not remember whether he has given any oral report or written report to the higher authorities
before obtaining permission to register FIR. He further admitted
that *…. It is true, I have not collected any log book of the vehicle bearing No. AP-28-W- 2404. I have not collected any leave application of PW1 on the date of complaint. I do not know who scribed
Ex.P3. I do not make any efforts to know who scribed Ex.P3. I did not enquire whether accused officer gave hand loan of Rs.3,500/- to PW1 to go to
Shabarimalai.
28
In the cross-examination PW8 also deposed that *….it is true as on the date of complaint,
PW1 was working in District Medical &
Health Officer. I do not know whether
PW1 has drawn full salary for the month of June, July and August, 2009. it is true
PW1 submitted an application on 25.6.2009 for cancellation of deputation order. It is true accused officer made endorsement on representation of PW1 to allot vehicle bearing No. AP-28-W-2404 on 25.6.2009 itself.
PW8 further stated “*….I did not verify that PW1 assigned duty to that vehicle from 25.6.2009. I did not verify in my investigation whether any separate order was passed by the successor of accused officer to cancel the deputation of PW1.
27.Apart from the evidence of PW8, it is the contention of
Learned Counsel for the evidence of PW9-T.Prabhakar who laid charge sheet is of nominal important and he has not taken part in investigation in collecting evidence. However, he has pointed out the evidence in cross-examination of PW9 wherein he admitted “I did not enquire any staff with regard to the loan of Rs.3,500/- taken by PW1 from accused officer to go to Shabarimala witness adds that this aspect was not 29 brought to the notice of accused or any of the witnesses in the investigation. It is true by the time of giving complaint PW1 was working as driver in the District
Medical & Health Officer Office,
Nizamabad. I have not verified about the pay bill registers of PW1 to the office of
District Medical & Health Officer. It is true
I did not examine successor of accused by name Sirajuddin and Smt.Suguna. I do not know successors of accused have issued any separate orders for cancellation of deputation of PW1.”
28.In view of above nature of evidence of PW1, PW2, PW8 and
PW9, keeping in view the oral arguments and written arguments submitted by prosecution agency, and also considering the defence version of accused officer through cross-examination, I have gone through the evidence of other circumstantial witnesses examined on behalf of the prosecution, PW3-Suresh
Reddy is the then Statistical Officer of the Office of District
Medical & Health Officer, Nizamabad and he deposed about the deputation order passed by the accused officer dt. 22.6.2009 and he took the signature of accused officer on the said file on 24.6.2009 and the orders were issued on 24.6.2009 and the orders were served on the individuals. In that orders, apart from
PW1 one Mysuddin and one Jairaj also effected in the transfer and they reported in their respective places, but PW1 has given 30 representation to the accused officer on 25.6.2009 and thereby accused officer has considered the same and directed to allot the vehicle bearing No.AP-28-2404 to the accused and since then PW1 has continued to work in the same place. In further evidence in chief he has deposed that on 7.8.2009 at about 8.30
AM he received a telephonic information that ACB officials trapped the accused officer and asked him to come to office early. Thereafter ACB officials asked about the file and he brought the file from one Shakeel and handed over the file to
ACB officials. Similarly PW4-P.Madhusudhan, the then
Administrative Officer also deposed about the transfer orders and deputation orders and the draft file prepared by Shakeel and all the orders were served on individuals on 24.6.2009.
Then PW1 gave a representation for cancellation of deputation orders on 25.6.2009. Thereafter on 29.6.2009 Shakeel prepared draft office order and Shakeel produced before him on 30.6.2009. The said file pertaining to cancellation of deputation orders of PW1 and allotment of the vehicle to him bearing
Registration No. AP-28-W-2404. Therefore according to the evidence of PW4, the endorsement made by the accused officer on the representation of the PW1 with the direction of allotment of duty by providing vehicle, itself is amounting to cancellation of deputation. No separate orders need to be passed by the accused officer. Therefore under these circumstances both Pws 3 and 4 also stated in their cross-examination that PW1 used to 31 take amount from staff in the denomination to the tune of
Rs.1,000/-, Rs.2,000/-, Rs.3,000/-. PW4 also stated in his cross- examination that it is true that the deputation orders dt.
24.6.2009 were obliged by Masiuddin and Jayaraj Drivers and they were joined, but PW1 did not oblige the deputation orders and did not join in the new station. On 25.6.2009 PW1 gave representation to District Medical & Health Officer for cancellation of deputation orders as his parents are old and it is true accused officer has immediately endorsed for allotment of duty and alloted vehicle bearing No. AP-28-W-2404. Even PW4 has admitted in his cross-examination that “*….it is true PW1 used to obtain hand loan from his staff including me. I lent hand loan to PW1 twice but he made repayment by dragging the matter. I came to know that PW1 took hand loan of
Rs.3,500/- from accused officer to go to
Shabarimala.”
Because of this kind of evidence of PW4, Ld.Spl.Public
Prosecutor has examined the witness PW4 with leave of the Court, and tried to elicit and dispute the habbit of taking hand loans by PW1. In re-examination by prosecution, however, PW4 stated that he was not present when accused officer actually lent Rs.3,500/- to PW1.
32
29.The evidence of PW5-Khaja Bhadruddin Shakeel, relating to circulation of file pertaining to transfer/deputation orders and evidence of PW6-A.Mallikarjun Rao, the Section Officer, speaks about the subsequent events dt. 27.8.2009, 4.12.2009 relating to Ex.P15 sanction order, Ex.P16 photostat copy of the particulars of the accused officer and so on. The sanction accorded under Ex.P15 is also not in dispute but the factual matrix are not properly considered by the sanctioning authority.
Whereas PW7 the then Dy.Director of Medical and Health
Department has deposed with regard to Ex.P12 letter dt.7.11.2009 and Ex.P16 is photostat copy of the service particulars of the accused officer which is also not in dispute, but Ex.P16 was marked with subject to objection by the defence counsel. The documents under Ex.P16, P13 and P14 are not relevant to the facts in issue. In the light of above evidence on record, the oral arguments of Ld.defence counsel and the case law relied on by him as here under:
1) Banarasi Das Vs. State of Haryana AIR 2010 SC Page 1589 held as under:
“P.C.Act – Complainant not supporting prosecution case acquittal proper.
To constitute an offence u/s.161 of IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terims of Sec. 5(1)(d) of the Act, the demand and acceptance of the money for for doing a favour in 33 discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.
Harshan v. State of Kerala [1996 (11) SCC 720], this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
".......It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.
Unfortunately, on this aspect in the present case we have no other evidence except that of PW-1.
Since PW-1's evidence suffers from infirmities, we sought to find some corroboration but in vain.
There is no other witness or any other circumstance which supports the evidence of PW-1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly 34 when the version of the accused appears to be probable".
2) In Ayyaswami Vs. State of Kerala (1992 CrlLJ 608) the
Supreme Court held as under:
“ There is no independent evidence to show that the appellant demanded Rs.100/- as bribe from the complainant. The Chemical solution did not inculpate him. The money was recovered from the drawer. There is no evidence apart from the complainant to show that the money was placed in the drawer by the complainant at the asking of the appellant. Under the circumstances we agree with the Ld.counself or the appellant that the conviction is based more on probabilities thatn on the vidence proving the guilt against him beyond reasonable doubt.
In the circumstances, the appeal succeeds and is allowed. The conviction and sentence of the appellant is set aside. His bail bonds are discahrged ”
3) Meena Vs. State of Maharastra 2000(1) ALD (Crl) 811 (SC), it is relied on by Learned defence counsel wherein at Para
No.11 it was held by the Hon’ble Apex court as here under “Mere recovery of the currency note of Rs.20/- denomination, and that too lying on the pad on the table, by itself cannot be held to be proper of sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust 35 into her hands by PW1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of evidence of PW1 and PW3, who seem to have strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony.
30.Similarly, written arguments filed by the prosecution agency and the case law relied on by prosecution also to be looked into:
1) In between State of A.P. Vs. K.China Swamy reported in (2016) 2 SCC (Cri) 355 wherein it was held.
Public Accountability, Vigilance and Prevention of Corruption – Prevention of Corruption Act, 1988 – Ss 7 and 13(2) r/w 13(1)(d)(ii) – Illegal gratification–Respondent,Assistant
Commercial Tax Officer demanded bribe for issuing registration certificate for PW-1' Kirana & General Stores – A trap was laid and he was caught red handed with bribe money –
Conviction restored.
Trial Court convicted respondent under Ss 7, 13(1)(d) r/w 13(2) of P.C.Act – high Court set aside conviction on basis that the phenolphthalein powder was also on the daybook which the respondent had signed, and that normal practice is to receive money 36 with right hand whereas the respondent had allegedly received the amount with his left hand.
Held, it was never the contention of accused that the daybook itself had traces of phenolphthalein powder – It was so contended the IO could immediately have subjected the daybook itself to appropriate test – The other contention that a person would not normally receive money by his left hand, again has no basis – Respondent – accused accepted Rs.400 only out of Rs.500 offered by PW1 as per demand and instructed that Rs.100/- be given to V, which would negate the theory of any accidental touching of tainted notes – This part of the case and aspects concerning demand and acceptance completely stood proved –
Conclusions of the High Court cannot be even be termed as possible view in the matter –
Appeal Allowed.
2) in between D.Velayutham Vs. State Represented by
Inspector of Police, Salem Town, Chennai in(2016) 1 SCC (Cri) 105 wherein it is held
Criminal Trial – Witnesses – Trap witnesses – not to be treated on par with accomplice/particeps criminis/ - Trap witnesses is on a higher pedestal – Corroboration is not mandatory in case of trap witness.
3) In between Chaitnaya Prakash Audichya Vs. CBI in(2016) 1
SCC (Cri) 186 wherein it is held
Public accountability – Vigilance – P.C.Act, 1988 –
Section 7,13(1)(d) r/w 13(2) and Section 20 of 37
P.C.Act, 1988 – illegal gratification – demand and acceptance of – fully established – testimonies of complainant and punch witness – completely consistent – tainted currency notes – recovered from person of accused – phenolphthalein invocable u/s.20 of P.C.Act, 1988 – stood unrebutted – Conviction confirmed.
4) In between Indra Vijay Alok Vs. State of Madhyapradesh reported in (2016) 1 SCC (Cri) 540 wherein it is held “P.C.Act, 1988 – Section 7, 13 (1)(d) r/w 13(2) of
P.C.Act, 1988 and Section 20 – demand and acceptance completely established – evidence of complainant, corroborated by statement of punch witnesses – presumption u/s.20 unrebutted –
Conviction confirmed.”
5) In Reparla Venkata Gopala Ratnam Vs State of A.P. reported in 2014 (1) ALD Crl 434 wherein it was held “The Hon’ble High court of AP held that the prosecution need not be proved by direct evidence.”
6) In Raghubit Singh Vs State of Haryana reported in AIR 1974
SC 1516wherein it was held
“The Hon’ble Supreme Court held seizure - of currency – trap is resipsa loquitut.”
7) In Hazari lal Vs Delhi Administration reported in AIR 1980 SC 873 wherein it was held “The Hon’ble Supreme Court held that raised presumption u/s 114 (a) of Indian Evidence Act recovery notes from accused would raise 38 presumption that the accused received the bribe amount. “
8) In B. Noha Vs State of Kerala and another reported in 2007 (1) SCC Crl 711 wherein it was held “The Hon’ble Supreme Court held that while referring the judgment in State of AP vs Kommaraju
Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by accused.”
9) In State Vs. Jhan chand reported in 1984 Crl.J.NOC (104) Delhi wherein it was held
Regarding the question as to the capacity of accused to do favour or disfavour at the time of demand of bribe, the fact that he was not in a position to show any favour is of no consequence.
10) In Phula Singh V. State of Himachal Pradesh reported in AIR 2014 Supreme Court 1256 wherein it was held (A) P.C. Act, Ss 7, 13 (2) – Illegal Gratification – Proof –
Complainant lodged FIR alleging demand of bribe by appellant for cancelling demarcation report – No explanation furnished by appellant in respect of recovery of Rs.1,000/- form pocket of his pant –
Nor he could furnish any information as to how his fingers turned pink on being washed , with sodium carbonate solution – Appellant also failed t o furnish explanation in his statement under S.313
Cr.P.C. regarding any incriminating material that has been produced against him – Order of High 39
Court reversing Judgment of acquittal is not perverse - No interference.
Cr.P.C. (2 o f 1974), S. 313 (Paras 6, 8, 9, 11) (B) Cr.P.C. (2 of 1974), S. 313 – Examination of accused – Accused has right to maintain silence during examination or even remain in complete denial when his statement u/s 313 is being recorded – But in such an event adverse inference against him could be drawn.
11) In M. Narsinga Rao Vs. State of A.P. reported in 2001 (1)
ALD (Crl.) 407 (SC) wherein it was held
I) P.C. Act 1988 – Section 20 (1) – Presumption under when the gratification is found accepted by the Accused, a legal presumption can be drawn that such gratification was accepted as a renewal for doing public duty - It is a compulsory presumption – Presumption U/s. 114 of evidence
Act – Can also be drawn.
II) Evidence Act, 1872 –Sections 4 and 114 – P.C.
Act 1988, Section 20 (1) – “Factual presumption” and legal presumption” – Explained.
III) Evidence Act, 1872 – Section 3 – work “proved”- explained.
12) In B.Prameshwara Rao Vs. State reported in 1999 Crl.L.J.
2059 wherein it was held “ (A) Prevention of Corruption Act (49 of 1988), S.
13(1)(d)(i)I(ii) – Criminal misconduct by public servant – Proof – Trap case – Accused a Railway employee demanding bribe to help complainant in getting appointment in Railway restaurant –
Recovery of money from accused - Phenolphthalein test proved – Fact that money changed from hand 40 of complainant to accused not disputed – Reason given therefore by accused not acceptable –
Certificate of complainant recovered from drawer of accused – No reason for false implication –
Requirement of S.13(1)(d)(i)(ii) – Satisfied –
Conviction proper.
13) In Md.Iqbal Ahmed Vs. State of A.P. reported in AIR 1979
S.C. 677 : 1979 Crl.L.J.633 wherein it was held that “it is incumbet on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either by producing the original sanction which itself contains the facts constituting the office and grounds of satisfaction or by adducing evidence alinude to show the facts placed before the sanctioning authority and the satisfaction arrived by it.”
14) In Madhukar Bhaskar Rao V/s. State of Maharastra reported in 2001 (1) ALD (Crl) 77 (SC)wherein it was held “P.C. Act, 1988 – Section 20 and 7 – Word ‘gratification ‘ mans any payment for giving satisfaction to a public servant who received it –
Public servant found in possession of currency notes smeared with phenolphthalein – presumption can be drawn that he accepted the gratification.”
15) In State of Maharastra Vs. Narsingara Rao Gangaram
Pimple reported in AIR 1984 S.C.-63 wherein it was held “B) Evidence Act (1 of 1872) S. 133 – Trap witnesses Evidence of Appreciation of – 41
Touchstone to be applied – Decision of Bombay
High Court. D/22-23/1/1976 Reversed (PC 1860
S.161 and 162)
Where in a trap case, the judge magnified every minor detail or omission to falsify or throw even shadow of doubt on the prosecution evidence then, it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. In deed, if such harsh touch stone is prescribed to prove such a case it will be difficult for the prosecution to establish any case at all.
Decision of Bombay High Court D-22/23-1-1976, reversed.
16 ) In State of A.P. Vs. R.Jeevaratnam reported in 2004 (6)
S.C.C.488 wherein it was held “(A) Prevention of Corruption Act, 1988 – Ss, 20(1), 7 and 13(1)(d) and (2) – Presumption under S.20(1) – Applicability – Prosecution under S.13(1)(d) r/w
S.13(2) – Evidence of Prosecution witnesses including that of an independent witness showing that for clearing the tender file of the complainant, the accused officer of the Port Trust had demanded and received money in the specified hotel room and was caught by CBI red handed with marked money (Rs.10,000 in this case) in a briefcase in his possession – Prosecution evidence not shaken in cross-examination – On evidence, accused's statement that money must have been placed in his briefcase when he had gone to the bathroom found to be unbelievable – No explanation by the accused for going into the hotel room – In such circumstances, held, the presumption under
S.20(1) did arise – Contention S.13(1)(d) demand has also to be proved, rejected as in the present 42 case the accused was also charged of an offence under S.7 and even otherwise the demand had been established by evidence.
17 ) In Sham Swarup Bhatnagar Vs. The state reported in 1983 (1) Crimes - 77 “Even One truthful witness is sufficient to convict a person under Prevention of Corruption Act if tainted money is recovered.”
18) In State of Kerala Vs. M.M.Mathew and another reported in
AIR 1978 S.C. 1571 “A) Evidence Act (1 of 1872) S. 2 – Evidence –
Appreciation of - Interested witness – Evidence of
I.O.
The courts of law have to judge the evidence
before them by applying the well recognized test
of basic human probabilities. The evidence of the
I.O. can not be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic wroth and can not discarded merely on the ground that being public servants they are interested in the success of their case.”
19) In Dr. Subrahmanian Swamy Vs Dr. Manmohan singh reported in 2012 CrlJ 1519 wherein it was held “The Hon’ble Supreme Court observed as today, corruption in our country not only poses a grave 43 danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a s socialist, secular democratic republic. Ti cannot be disputed that where corruption beings, all rights and corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambles vision.”
Therefore, the duty of the court is that any anti corruption law has to interpreted and worked out in such a fashion as two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetual it.
20) In Mlukut Bihari & another Vs State of Rajasthan reported in Crl. Appeal No.870 of 2012 SC
It is not necessary that evidence of reliable witness is necessary to corroborate by another witness –
Presumption u/s 20 of P.C. Act.
21) In M.S.Varaprasad Vs. Inspector of Police, Anti Corruption
Bureau, Hyderabad 2014(1) ALD (Crl) 429 AP wherein it was held “No spontaneous explanation given by accused
before trap party members to that effect – Theory
put forth by accused, an afterthought – Defence plea rightly rejected by trail court Conviction upheld – Criminal appeal dismissed.
44
22) In Billa Nagal Sharief Vs State of A.P. reported in 2011 (1) ALT Crl. 144 SC
Plea of thrusting the money is to appellants pocket not fit to be believed in the face of categorical and consistent evidence of prosecution witnesses. N merit in appeal – Dismissed accordingly.
23) In Syed Abdul Moiz Vs State of A.P. reported in 2013 (1) ALD (Crl) 158 wherein it was held
P.C. Act, 1988 Sec 7 & 13 (2) r/w 3 (1) (d) –
Conviction – Rejection of defence theory and failure of accused to discharge his burden – Appellant working as Asst. Environmental Engineer issued show cause notice against the company stating that it was casing smell nuisance in the vicinity –
Defence theory put forward by appellant rightly rejected by Trial Court – Conviction.
24) InN.K. Seetharama Sarma Vs Statereported in 2013 (1) ALD (Crl) 431 (AP) wherein it was held
In the post trap proceedings appellant merely stated that he did not demand any bribe from complainant and allegations against him are false –
Defence theory that money was thrust into fold of his lungi by complainant rightly rejected by trial court as being highly unconvincing – Appeal dismissed.
25) In K. John Devasahayam Vs State of AP reported in 2014 (1) ALT (Crl) 280 wherein it was held
Case of the prosecution is that chemical test conducted on the fingers yielded positive results.
45
Bribe amount was recovered. Numbers of the currency notes in the pre trap proceedings tallied with the notes recorded.
The very theory put-forth by the appellant that
PW1 thrusted the amount into his pocket and ran away is quite unconvincing and unacceptable.
26) In State of Andhra Pradesh Vs. V.Vasudeva Rao reported in
AIR 2004 (SC)-0-960, 2004-SCC-9-3-19 wherein it was held “ (i) Prevention of Corruption Act, 1947 – Section 5 (2) r/w 5(1)(d) - Indian Penal Code, 1860 –
Section 161 – Evidence Act, 1872 – Section 4 –
Accepting illegal gratification – No explanation offered for presence of phenolphthalein powder –
However, High Court acquitted accused holding that prosecution has failed to prove demand and acceptance of money by the accused – Whether approach of the High Court is justified – (NO) – when receipt of money was admitted it was for accused to prove as to how the presumption u/s. 4 of the Act is not available – Accused convicted of offence u/s. 161 IPC and Section 5(2) r/w (1)(d) of the Act of 1947.
27) P.Satyanarayana @ Satteiah Vs State
Appreciation of evidence – Eye witnesses supported prosecution case in chief examination – Case adjourned to subsequent date for cross examination as defence counsel not ready –
Meanwhile manipulation made and witnesses turned hostile witnesses recorded in one sitting and consistent with medical evidence and othr evidence has to be accepted – Second version be rejected –
Courts in such case shall take steps to initiate 46 proceedings per perjury against the persons concerned as reported in 1994(2) ALT (Crl) 95
Division Bench.
28) In Shiv Nandan Dixit Vs. State of U.P. reported in 2003(8)
SC 901 = 2004 CCR (1) 86 SC = 2004(1) Crimes 219
A.2 receiving money on behalf of AO1 –
Presumption can be raised
a) Sec.161 and 120-B – Explained.
b) Sec.5(1)(d) & 4 of P.C.Act 1947 words obtains for himself – cannote not only receiving bribe personally but receipt of any bribe either directly or indirectly – though demand of bribe made by A1 and the same was not received by him but by A2 –
Contention that presumption of guilt u/s was not available for offence u/s 5(1)(d) liable to be rejected.
c) Order passed by ITO was an official order – any act to comply with the said order will also be an official act – When A1 was directed return said document, A1 was doing an official act – demand of bribe by A1 in that process is an offence u/s.161.
d) Involvement of A2 who was found receiving money alleged to have been demanded by A1 – demand made in the presence of A1 class 4 employee in the same office – document promise to be returned outside the office at 5:30 pm on the same day – A2 refusing to reduce the amount by saying that A1 would be suspicious on him – A2 was a party to the conspiracy – A2 obtained money on behalf of A1 – Conviction upheld.
47
29) Abdul Kaffar Vs. State of Kerala reported in 2004 SCC (9) 333 – 2004 Crimes – SC 106.
When the stand taken by the accused during trials not taken during post trap proceedings, first available opportunity the defence was not genuine.
30) In The State Vs A. Parthiban reported in 2008 Crl. L. J. 4772
SC wherein it was held “7 & 13 (1) (d) – Difference between offences explained – Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Sec.7 – acceptance of illegal gratification in pursuance of demand by a public servant would fall under 13 (1) (d).”
31) In Shiv Raj Singh Vs. Delhi Administration reported in AIR 1968 SC 1419 wherein it was held “No official favour or intention to do any official favour - Case made out under 7 & 13 (1) (d) of P.C.
Act. “
32) In Girija Prasad Appellant Vs. State of Madhya Pradesh reported in 2007 SCC (Crl) (3) – 475 wherein it was held
A) P.C.Act, 1947 – S.4 and S.5(1)(d) r/w 5(2) presumption under section S.4 regarding acceptance of illegal gratification – Invocation of –
Prerequisites for - Rebuttal of said presumption –
Held, once it is proved that the amount has been received by the accused presumption under S.4 would get attracted – In such a case, it would be wholly immaterial whether the said acceptance of amount was for him or for someone else – It would also be immaterial whether the accused was or 48 was not in a position to oblige the complainant –
However, the said presumption is not absolute –
Accused can rebut the said presumption by leading evidence – In the present case, there was evidence as to acceptance of amount by the accused. Hence, presumption under S.4 of the PC Act, 1947 got attached – accused failed to rebut the said presumption as he did not adduce any evidence whatsoever in that regard. Therefore, High Court as justified in reversing his acquittal and convicting him under the PC Act 1947 and S.161 IPC – Penal
Code 1860, S. 161 (since repealed) – prevention of
Corruption Act, 1988 – S.20 and S.13 (1)(d) r/w 13(2).
E) Criminal Trial – Witness – Police witness –
Recording of conviction solely on basis of testimony of police officials – Permissibility of held, can be recorded if on careful scrutiny of their evidence the same is found to be reliable and trustworthy – Not necessary to be corroborated by independent evidence – Evidence Act 1872 S. 3 114 III (e) and 4.
33) B. Noha Vs State of Kerala and another reported in 2007 (1)
SCC (Crl.) – 711 wherein it was held
a) There is no basis for PW1 to falsely implicate the accused – Evidence on record clearly show why the illegal gratification was demanded and accepted by the appellant – Evidence of PW1 does not suffer from any infirmity and evidence of PW2 is also clear credible and cogent.
b) When it is proved that there was voluntarily and conscious acceptance of money by the accused there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
49
c) When the amount is found to have been passed to the Public Servant the burden is on the Public
Servant to establish that it was not byway of illegal gratification – No case of accused that he was legally entitled to collect the amount from PW1– the burden held was not discharged by accused.
34) Sukhdev Yadav and others Vs. State of Bihar (2001) 8 supreme Court Cases 86.
“a)Criminal Trial – appreciation of evidence
Contradictions / inconsistencies/exaggerations / embellishments – minor variations in prosecution evidence – Probative value of such evidence and acceptability thereof – Held, once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same – If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence – Despite minor discrepancies in prosecution evidence, conviction and sentence awarded to appellants under S.302
Appeal against conviction – conviction under
Sec.302 upheld despite minor variations in prosecution evidence – Evidence Act, 1872, Ss.3 and 155 – Criminal Procedure Code 1973., S.162.
b) Criminal Trial – Infirmities /Lapses /
Omissions – lapses – non- production of seizure list – Lapses, when do not affect the prosecution case – held, non-production of seizure list is undoubtedly, a lapse on the part of the prosecution – however, if there exists credible evidence on record, such a lapse would not affect the prosecution case – lapses, if do not have the 50 effect of causing any prejudice to the accused, cannot be used to impeach the testimony of eyewitnesses – Criminal Procedure Code, 1973,
S.102(3) – Non -production of seizure list, held, would not affect the prosecution case.
35) Between Chaturdas Bhagwandas Patel Vs. State of Gujrat
Supreme Court of India Chaturdas Bhagwandas Patel vs The State Of
Gujarat on 16 April, 1976 Equivalent citations: AIR 1976 SC 1497, 1976 CriLJ 1180, (1976) 0 GLR 804, (1976) 3 SCC 46, 1976 3 SCR 1052 wherein it was held “ Indeed, when a public servant, being a police officer, is charged under Section 161, Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material of that purpose. If he had used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do ay official act of favour or disfavour ( see Bhanuprasad Hariparasad Vs. State of Gujarat and Shiv Raj Singh Vs. Delhi
Administration.).
In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under Section 4(1) of the Prevention of Corruption Act. It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged b y 51 bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in section 161. The appellant had hopelessly failed to show such a balance of probability in his favour.
36. J.Raghavendra Chary Vs State of A.P., 2015 Cri. LJ (NOC) 25 (AP).
The Appellant, a sub-registrar, was convicted by the trail judge for demanding and accepting
Rs.1000/- from the complainant for returning original Mortgage Deed. The High Court found that the evidence of the complainant was trustworthy though the accused joined place a month early year, that not sending phenolphthalein solution to chemical analysis for corroboration was not fatal, and that only the accused could have place bribe currency notes in Almarah in record room, since the complainant was a stranger and was not acquainted with the said place, and observing that the offence of demand and acceptance of illegal gratification was proved, up held the conviction.
37.Kalicheti Gopala Reddy Vs State, 2015 Cr.LJ (NOC) 26 (Hyd):
2016 (1) ALT (Crl) 217 (AP).
The Appellant was Convicted by the Trail Judge for demanding and accepting Rs. 1000/- from the complainant for issuing Pattadar Pass Book. The
High Court held that testimony of the complainant was corroborated by witnesses, and minor discrepancies were not fatal to the case of the complainant, that accused could not established 52 inimical relations between him and the complainant and also accused took inconsistent please at different stages, which have been rightly rejected for being inconsistent, and confirmed conviction.
38.V.Vaman Rao Vs State of A.P. 2011 (3) ALT (Crl) 246 (AP).
The Appellant, a Mandal Revenue Officer, was convicted for demanding and accepting Rs. 300/- from complainant for issuing “Lavani Patta” in favour of the son of complainant. The High Court held that the trial court has rightly evaluated the evidence of the Prosecution witnesses and other material on record and found that there is no force in there evidence legal enough to prove the guilt of the appellant and for the offences as has been charged with and it was rightly convicted and sentenced the appellant therefore the same does not suffer from any error, irregularity or illegality warranting interference of this court. Appeal dismissed.
39. Ashis Chowdhry Vs State of A.P., 2012 (I) ALD (Crl) 449 (AP).
The Appellant, a Railway Protection Force
Inspector was Convicted by Spl. Judge for accepting a bribe of Rs. 3000/- from complainant for not booking cases against him. It was argued in the appeal that there was no demand of the accused on the complainant on 07.01.2003 and infact he was not in post on that day at 10.40 AM to 6.40 PM as per the diary maintained in the outpost the High Court found that the tainted amount was recovered from the house of accused,
Sodium Carbonate test proved positive before recovery of bribe money and acceptance of bribe 53 from PW-1 in the presence of PW-2 was proved beyond doubt. The Court also held that contrary entries in station diary was of consequence, since entries in public record cannot be accepted as conclusive proof or as gospel truth ignoring other convincing evidence which may prove a different fact situation than that indicated by the said entries and confirmed the conviction of the appellant.
40.Ch. Viswesham Vs State, 2012 (2) ALD (Crl) 921 (AP): 2013 (1) ALT (Crl) 139 (AP).
The Appellant, Excise Superintendent, was convicted by the Spl. Judge for Anti Corruption
Bureau Case for demanding and accepting Rs.
2000/- from the contractor for renewing wine shop license. On appeal, it was argued that before the date of trap the License was already renewed, the money of Rs. 2000/- taken from the complainant (PW-1) for arranging telephone connection to the mother in law of PW-2 and that the complainant bore a grudge as the appellant asked him to go out of office in front of several contractors.
Tainted money was recovered from Kurtha pocket,
Phenolphthalein test was proved positive and that the appellant instructed PW-4 Jr. Asst., not to hand over license to PW-1 without his permission. Held that merely because there are minor omission in sec 164 Cr.P.C. statement of PW-1, his evidence cannot be disbelieved on that score alone. When
PW-1 and the appellant were not in good terms, it is not understandable as to why the appellant allowed him and PW-2 to his house, offered sweets, received an amount of Rs. 2000/- from
PW-1. It is true that the standard by which the 54 appellant has to prove the defence is not that of the standard of the proof beyond reasonable doubt, which rests on the prosecution and it is that of preponderance of probability. Here in this case, the defence plea taken by the appellant itself is quite unconvincing and unbelievable. Therefore, it cannot at all be said that appellant could be able to rebut the presumption against him under section 20 of the Act. The learned trail court rightly convicted the appellant and the order of conviction and sentence passed against the appellant does not required any interference in this appeal.
41. Dr. K.Satyanarayana Reddy Vs State of A.P. 2012 (2) ALD (Crl) 692 (AP) : 2013 (1) ALT (Crl) 56 (AP).
The Appellant, a Civil Surgeon Govt. Hospital at
Karimngar, was trapped when he demanded bribe of Rs.1000/- from complainant (PW-1) for conducting an operation on his son in law (PW-2) and was also convicted by the Spl. Judge. On appeal, it was argued that the appellant could not conduct operation as there was no blood of the group and also that shadow (PW-8) was examined after section 313 Cr.P.C. examination, which costs doubt about the identity of the right person. The
High Court held that the appellant was not expected to receive money from the patient for any purpose including for procuring blood, the state proved its case and the appellant could not discharge the burden cast on him under section 20 of P.C. Act and dismissed the appeal.
55
42. Nageswara Rao Vs State of A.P., 2012 (2) ALD (Crl) 139 (AP).
The Appellant working in Commercial Tax Office was convicted by the Spl. Judge, Vishakapatnam, for demanding and accepting Rs. 1000/- as bribe for grant of Trade license to the complainant (PW- 1). Amount was recovered from the possession of the appellant. The High on appeal held that demand and acceptance of illegal gratification was proved by the prosecution witnesses and the defence does the amount was received towards purchase of NSCs to be deposited as Addl.
Security cannot be accepted as officers were instructed to receive only NSCs but not cash and dismissed the appeal.
43.P.Satyanarayana Vs State, 2013 (1) ALD (Crl) 346 (AP).
The Appellant, a Sub-Divisional Engineer in BSNL, was convicted for accepting bribe for restoring out going call facility to the Telephone of the complainant (PW-1). Money was recovered from trouser back pocket and chemical test proved positive. It was the defence of accused that money was given by PW-1 towards telephone charges. On appeal, the High Court held that there was no circumstance infer that he had any grouse or enemity against appellant. No telephone bill was generated as on the date of trap and held that Conviction by the trial court was justified.
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44. Dita Seetha Ramalingeswara Sarma Vs State A.P., 2013
Cr.LJ 4482: 2013 (1) ALD (Crl) 669 (AP): 2013 (2) ALT (Crl) 234 (AP).
The Appellant (A-1), a Prohibition Excise Inspector and a Head Constable (A-2) were prosecuted by
Anti Corruption Bureau for accepting bribe for releasing father and a relative who were arrested by A-1. The trail Judge acquitted A-2 and
Convicted A-1. It was argued in appeal that PW-1 and PW-2 had not fully supported prosecution case. On appeal, the High Court held that both
PW-1 and PW-2 did not totally depart from the basic version of prosecution. They, in fact, supported basic version of prosecution. Appellant failed to rebut the presumption and dismissed the appeal.
45. Syed Abdul Moiz Vs State of A.P. 2013 (1) ALD (Crl) 158 (AP):
2013 (1) ALT (Crl) 233 (AP).
The Appellant Assistant Environmental Engineer in A.P. Pollution Control Board at Nizamabad, was convicted for accepting Rs. 5,000/- as bribe from complainant (PW-2) for not taking action on the notice served on the company of PW-1. Money was recovered and chemical test was positive.
On appeal, the High Court found that the explanation of the appellant that he entered into an agreement to sell him motor cycle to PW-2 and that he received Rs. 5,000/- from PW-2 as advance out of the sale price of 10,000/- rupees of his motor cycle could not accepted in view of the notice given to PW-2 by the appellant.
Conduct of the appellant shows that he threatened PW’s-1 and 2 to meet his demand.
57
Though they turned hostile, fact remains that PW- 2 lodged report to PW-6. Dismissed the Appeal.
31.Learned Spl.Public Prosecutor while submitting arguments strongly placed reliance upon the evidence of PW1, PW2, PW8 and PW9 and further submitted in the light of evidence on record, the legal presumption u/s. 20 of Prevention of Corruption
Act, 1988 also can be invoked in favour of the prosecution and the accused is liable to convicted. On the other hand Ld.counsel appearing on behalf of the AO argued at length by taking the attention of the Court to the evidence of PW1, PW2, PW4 to 7 as well as PW8 and set up the defence through the evidence of cross examination. It is the main contention of Ld.Counsel that a plain reading of the evidence of PW1 that, it was an endeavor to show that he has spoken altogether a contradictory facts in respect of the demand of Rs.10,000/- initially on one occasion and he paid Rs.5,000/- instantaneously for cancellation of deputation and thereby agreed to pay Rs.5,000/- balance later, but on his request AO reduced the same to Rs.3,500/- rendering him for cancellation of the deputation and retain him at the head quarters at Nizamabad, which is unreliable and his evidence is uncreditworthy. It is also pointed out by Ld.counsel, several admissions made by PW1, PW2 and PW8 which are substantiating the defence of the accused that earlier PW1 has borrowed money from AO to go to Shabarimala and PW1 58 admitted his visit to Shabarimala every year during the month of January for Jyothi darshan. It is also admitted fact that the prosecution witnesses more particularly PW3, PW4, PW5 with
PW1 used to obtain hand loans from them for his financial needs and used to repay it. In view of such evidence the contention of AO that the amount of Rs.3,500/- given by PW1 is pertaining to the repayment of the loan amount but not as a bribe. Moreover no official act is pending as on the date of the trap with the AO. Accordingly, it is submitted by the Ld.counsel that the material on record and the facts elicited from the prosecution witnesses is sufficient in law to condemn the prosecution case and also to accept the defence of the accused person and the alleged trap is organized is a false trap.
32.Keeping in view the contentions of both, looking into overall facts of the case and the evidence on record, this Court find as here under:
I) It is to be noted, PW1 has given report to the ACB officials on 6.8.2009 directly to the Joint Director (Anti Corruption Bureau, Central Investigation Unit), and Joint Director has made an endorsement directing Dy.Superintendent of Police, Anti
Corruption Bureau, Central Investigation Unit to verify and take necessary action. Basing on such endorsement, the then Dy.Superintendent of Police, 59 namely Srikrishnudu who is holding full additional charge has received the representation on 6.8.2009 at 1.15 AM and there is no any specific direction to verify the antecedents of the AO. However, on 7.8.2009 at about 4.00 AM the case was registered u/s.7 of Prevention of Corruption Act and after obtaining permission from the superior the investigation is taken up. In the report of PW1 under Ex.P3, it is mentioned that initially AO has demanded Rs.10,000/ for cancellation of the transfer order and he paid Rs.5,000/- towards bribe, but the date of payment is not mentioned. Moreover except the evidence of PW1, there is no any other piece of evidence to show that the accused officer has demanded bribe amount for cancellation of deputation orders. In the same report it is also mentioned that he was alloted with the duty and he was retained in the same office by allotting the vehicle bearing No. AP-28-W-2404. Therefore, there is no any other official act or official favour to be executed by the AO. Moreover, PW1 admitted in his cross-examination that he has no any grievance against the accused officer and he had no complaint against him. AO had good reputation as a good officer.
60
II) In cross-examination of PW1 it is elicited that he know that in case of any demand of illegal gratification a complaint can be given to the local
ACB official, as admitted by him, there is office of
DSP, ACB at Nizamabad, he has not given any report there but chosen to give complaint to the
Joint Director of Anti Corruption Bureau situated at
Hyderabad. Accordingly he came to Hyderabad, stayed on 6.8.2009 and gave report to the Joint
Director and according to him he stayed at night and after issuing FIR at early 4.00 AM,
Dy.Superintendent of Police/PW8 has decided to trap the Accused Officer on the same day, without any verification of antecedents or discrete enquiries against the accused officer, started from Hyderabad and reached Nizamabad by 7.15 AM and conducted the trap. As admitted by PW1 absolutely there is no any pre arranged place between PW1 and AO where the bribe amount has to be given, but by the PW1 directly taken the trap party to the house of AO, knocked the door and further admitted by PW1 that soon after opening the door, AO questioned him as to why he came. Then he revealed the purpose and directly given the cash of Rs.3,500/- (tainted amount) to the AO.
61
33.If it is the bribe amount, as demanded by PW1, he would have kept that amount in concealed place but it is evident from the testimony of PW1 that the amount was taken and kept it on the table as usual. Under these circumstances, not only the prosecution version of demand and acceptance of bribe seems to be unusual, the contradictions of the witnesses more particularly PW1 and PW2 and PW8 with regard to Rs.3,500/- also renders it doubtful. It is also to be noted, usually that the tainted amount when allegedly handed over by PW1 to the AO, the same instead of being keenly kept with him, the amount placed casually on the table in front of him. Therefore, on an overall appreciation of evidence of PW1 who is only witness for demand and acceptance, in the light of evidence in cross- examination the context of the elicitation of law pertaining to proof of ingredients of Sec.7 and 13 of Prevention of Corruption
Act as adverted in the preceding para no.9, I am of the opinion that prosecution has failed to prove the charge levelled against
AO beyond all reaosnable doubt. Thus the decision relied on by the Ld.counsel for the accused Officer in B.Jayaraj Vs. State of
A.P. (2014(2) ALD (Crl) 73) held as under:
In so far 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 62 currency notes cannot 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. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of
A.P.[1] and C.M. Girish Babu Vs. C.B.I., (2009) 3 SCC 779 = AIR 2009 SC 2022 = 2009 AIR SCW 1693.
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused.
When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P-11)
before LW-9, and there is no other evidence to prove
that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also 63 will be conclusive in so far as the offence under
Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under
Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.
34.Therefore in view of the evidence on record, as pointed out above the essential ingredients of offence u/s. 7 and 13 of
P.C.Act are not made out as against the accused herein and no presumption is available to the prosecution, in the absence of the proof of demand and acceptance of illegal gratification.
Infact the vital parts of which consists of demand part, payment and the trap incident, dependent upon each other, but prosecution bound to prove all the vital parts, but failed to do so. The entire conduct of the PW1 seems to be doubtful and his 64 evidence alone is not reliable and trustworthy to fasten criminal liability against AO herein. Accordingly, I come to conclusion that prosecution could not establish the case against AO beyond all reasonable doubt for the charge u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act against accused herein beyond all reasonable doubt as such I hold that accused herein is entitled to be acquitted.
35.In the result, accused is found not guilty for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and he is acquitted u/s. 248(1) Cr.P.C. The bail bonds of accused shall stand cancelled.
MO1 i.e., tainted amount of Rs.3,500/- is ordered to be returned to Complainant-PW1 if not reimbursed earlier by department and if returned, the same shall be remitted in the
Government Treasury and rest of the material objects Mos2 to 7 shall be destroyed, after appeal time is over.
Dictated to Stenographer Gr.I, transcribed by her,
corrected and pronounced by me in the Open Court on this the 13th day of September, 2019.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
65
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION:
PW1Perikedi Gangaram, Driver, O/o District Medical & Health Office, Nizamabad.
PW2 G.Yashwanth Rao, A.E., O/o A.P.H.B., Hyderabad.
PW3Cherukupalil Suresh Reddy, Incharge accused officer, Statistical Officer O/o D.M.&H.O., Nizamabad.
PW4 Binnogi Madhusudhan, Office Superintendent, O/o D.M. & H.O., Nizamabad
PW5Khaja Badruddin Shakeel, Sr.Asst., D.M.&H.O., Nizamabad
PW6K.Mallikarjun Rao, Section Officer, Health, Medical & Family Welfare (VC-1)Department.
PW7K.Shashisri, Dy.Director (Admn.), Director of Public Health, Hyderabad.
PW8 U.S.Srikrishnudu, Inspector, ACB, CIU, Hyderabad.
PW9T.Prabhakar, Inspector of Police, ACB-CIU, Hyderabad.
FOR THE DEFENCE - NONE -
66
DOCUMENTS EXHIBITED
FOR THE PROSECUTION
Ex.P124-06-2009Copy of Order passed by accused officer.
Ex.P225-06-2009Representation given by PW1 to accused officer
Ex.P3 06-08-2009Complaint/Report given by PW1 to Dy.Superintendent of Police
Ex.P4 07-08-2009Pre Trap Proceedings
Ex.P507-08-2009Post Trap Proceedings
Ex.P607-08-2009Rough Sketch
Ex.P7---Transfer file of Pws 1 (12 sheets)
Ex.P8---Xerox copy of Inward Register
Ex.P9---Attendance Register of NGOs
Ex.P10---Attendance Register of Gazetted
Ex.P11---Made up file containing One brown colour Envelop
Ex.P1207-11-2009Letter
Ex.P1311-08-2009Portion of 161 Cr.P.C statement of PW3
Ex.P1411-08-2009Portion of 161 Cr.P.C statement of PW4
Ex.P1529-07-2010Sanction Order
Ex.P1616-09-2009Photostat copy of Service particulars of accused officer
Ex.P1707-08-2009First Information Report
FOR THE DEFENCE - NIL -
67
MATERIAL OBJECTS MARKED
MO1Tainted amount of Rs.3,500/-
MO2Sealed cover containing the sample phenolphthalein powder used for the demonstration purpose during pre trap proceedings.
MO3Sealed cover containing the sample powder of sodium carbonate used for the demonstration purpose during pre trap proceedings.
MO4Sealed cover containing the sample powder of sodium carbonate used during post trap proceedings.
MO5Sealed bottle containing right hand wash of accused
MO6 Sealed bottle containing left hand wash of accused
MO7 Sealed bottle containing resultant solution of contacted portion of table by swabbing with cotton.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
1
IN THE COURT OF THE SPL. JUDGE FOR TRIAL OF SPE & A.C.B
CASES : AT KARIMNAGAR.
PRESENT : SRI M.JOHNSON, Spl.Judge for trial of SPE & A.C.B Cases,
K A R I M N A G A R.
Dated this the 24 th day of September, 2019.
CALENDAR CASE No. 139 of 2015
Between:
The State through Inspector of Police, Anti- Corruption Bureau, Nizamabad Range, Nizamabad. … Complainant AND
Sri Gurudwar Susheel Kumar S/o Gangaram, 42 Years,occ:Dy.ExecutiveEngineerand A/c.Executive Engineer, Division-2, Sri Ramsagar Project, Pochampad (V), Balkonda (M), Nizamabad District, R/o H.No.11-1-1947/1, Gangasthan, Nizamabad District Officer.
...Accused Officer
This case is coming for final hearing on 17-9-2019 in the presence of Special Public Prosecutor for the state and of Sri M.S.Prasad, Advocate for the Accused, 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.The Inspector of Police, Anti-Corruption Bureau,
Nizamabad Range, Nizamabad has filed the charge sheet in
Cr.No. 1/ACB-NZB/2009 against the above named accused
Officer to prosecute him for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 2
2. The case of the prosecution in brief is that, at the time of alleged occurrence, the accused was working as Dy.Executive
Engineer and also acting as Executive Engineer, Division-2, Sri
Ramsagar Project, Pochampad (V), Balkonda (M), Nizamabad
District and by virtue of post held by him, he comes under the category of public servant within the meaning of Sec.2(c) of
Prevention of Corruption Act, 1988.
3.That on 31.12.2008 at about 4.00 PM PW1-Payyavula
Ramesh lodged a written report with the Station House Officer, as per Ex.P1 stating that, it is the case of PW1 that on 28.11.2008 the accused officer has allotted the work of cleaning and painting of Gantry Crane worth of Rs.One Lakh to the Pw1 and he has completed the said work by 20.12.2008 and thereafter, PW1 has approached the accused officer for claiming the bill amount for the work done by him and thereby the accused officer has demanded bribe of Rs.10,000/- for passing the bill. Thereafter, finally on 31.12.2008 in the morning time PW1 has approached accused officer for the purpose of claiming the bill amount, and then again accused officer has again demanded Rs.10,000/- towards bribe and on repeated requests of PW1, accused officer has reduced the bribe amount from Rs.10,000/- to Rs.7000/- and asked him to bring the amount on 2-1-2009 to his office or to other place as 3 directed by him, but as PW1 is unwilling to pay the bribe amount as demanded by accused officer, as such he approached the office of the ACB, Nizamabad and lodged Ex.P1 report to take necessary action. On receipt of report from
PW1, LW10-N.S.Karunanidhi, the then Dy.Superintendent of
Police, Anti Corruption Bureau has registered the case in Cr.No.
1/ACB-NZB/2009, under Sec. 7 of P.C.Act and issued FIR as per
Ex.P11 and then asked PW1 to come to the office on 2.1.2009 at about 7.15 AM.
4.Accordingly, PW1 went to the Office of the
Dy.Superintendent of Police, ACB and by that time
Dy.Superintendent of Police has already secured the presence of two mediators namely PW2-G.Prabhakar and LW3-K.Ganesh who are working in the office of Assistant Commissioner, Prohibition & Excise, Nizamabad. It is further stated in the charge sheet that after arrival of PW1, Dy.Superintendent of Police has introduced the mediators to him and further decided to trap accused officer on 2.1.2009 and accordingly it is ascertained with the PW1, whether he brought the cash of Rs.7,000/- and after informing that PW1 brought the cash of Rs.7,000/-, the said amount was counted by the mediators and noted down the currency note numbers in a separate sheet and thereby called upon one Constable and got applied the phenolphthalein powder to the currency notes and thereby conducted chemical 4 test by using Sodium Carbonate Solution and asked the said constable to dip his hand fingers in solution and then solution turned into pink colour and accordingly explained the significance of the chemical test to PW1 as well as the mediators for the purpose of trap against accused officer herein.
5.It is also the case of the prosecution that on 2.1.2009, the accused officer was trapped at the office of Executive Engineer,
I&CAD Department, Division-II, GVC-I, Sriram Sagar Project,
Pochampad, Nizamabad District while accused officer demanded and accepted the bribe amount. After the trap the
Mediators Report-II was also prepared by PW2 and LW3-
K.Ganesh and the chemical test was conducted on the right hand fingers of the accused officer which turned into pink colour and the tainted amount of Rs.7,000/- was recovered from the accused officer from his wearing left side shirt pocket in the presence of the mediators. Furthermore, the inner flap of the left side shirt pocket of accused officer was also subjected to sodium carbonate solution test which also yielded positive result. Thereafter, accused officer was taken into custody, effected his arrest and produced him before the Prl.Spl.Judge for SPE & ACB Cases, Hyderabad for the purpose of judicial remand. Thereafter, LW10-Dy.Superintendent of Police examined and recorded the statement of PW1 and also got 5 recorded the statement of PW1 u/s. 164 Cr.P.C through Judicial
Magistrate of First Class, at Kamareddy and handed over the CD
file to the LW13-Inspector of Police, ACB who assisted LW10 and investigated and filed charge sheet.
6.In sum and substance, the case of prosecution is that the accused officer being public servant and working as
Dy.Executive Engineer and who was also placed Incharge for
Executive Engineer, Division-II of Sriram Sagar Project,
Pochampad and he demanded Rs.7,000/- as bribe amount from
PW1 for passing of the bill in respect of the work of cleaning and painting of Gantry Crane by PW1. Subsequently, after obtaining the sanction proceedings from the Govt. of A.P.vide G.O.Ms.No.
294, dt. 10.11.2009, the charge sheet is laid against the accused officer for the offence u/s. 7 and 13(1)(d) r/w 13(2) of
P.C.Act.
7.The above charge sheet has been taken on file and cognizance was taken by the Prl.Spl.Judge for SPE & ACB Cases,
Hyderabad under section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and and after taking cognizance, initially the case was registered vide CC.No. 155 of 2010 and subsequently, the case record was transferred to this Court and the same is renumbered as CC.No. 139 of 2015 and also complied the provisions u/s. 207 Cr.P.C., and infact accused was 6 examined u/s. 239 Cr.P.C. before the original Court by explaining the accusation, but he denied the same and the charge was framed and read over and explained to the accused officer for the offences u/s. 7 and 13(1)(d) r/w 13(2) of P.C.Act and AO has claimed to be tried.
8.During the course of trial, on behalf of the prosecution,
Pws 1 to 9 were examined and Ex.P1 to P14 were marked and also Mos 1 to 8 were marked.
9.After completion of prosecution evidence, accused was examined u/s. 313 Cr.P.C., by explaining the incriminating evidence on record for which he denied the prosecution evidence and when opportunity is given, the accused officer and his counsel reported that AO will produced the defence evidence. On behalf of the defence of the accused/DW1 is examined and Ex.D1 to D4 were marked.
10. During the course of arguments, Learned Spl.Public
Prosecutor and learned defence counsel submitted arguments with reference to evidence on record, and both sides filed their written arguments at length and also filed case laws through memo.
7
11.Now, the point for determination is whether the prosecution is able to prove the charge u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the accused beyond reasonable doubt?
12. In order to prove the charge against accused officer herein, the prosecution must prove the essential ingredients of offence u/s. 7 r/w 13(1)(d) r/w 13(2) of Prevention of Corruption
Act, 1988, the following factors must be proved.
i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
Iii) for himself or for any other person.
iv) Such gratification was not a remuneration to which the accused was legally entitled.
v) The accused accepted such gratification as a motive or reward for:-
a) doing or forbearing to do an official act: or
b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions: or
c) rendering or attempting to render any service or disservice to some one with the
Central or any state Government or
Parliament or the Legislature of any State of with any local authority, Corporation or
Government company referred to in Sec. 2
Clause (c) or with any public servant whether named or otherwise.
8
For the offence u/s. 13(1)(d) the ingredients of this clause are
1) He should hold office as Public Servant.
2) He should obtain any valuable thing or pecuniary advantage for any person
3) Such obtaining of valuable thing or pecuniary advantage is without any public interest.
A reading of this provision would make it amply clear that all the three wings of clause
(d) of Sec.13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of word or (at the end of each sub clause). Thus under sec. 13(1)
(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under sec. 13(1)(d) of the
Prevention of Corruption Act, 1988. on the same reasoning “obtaining a valuable thing or pecuniary advantage merely by abusing official position “ as contemplated u/s.13(1)
(d)(ii) in itself would satisfy the ingredients of
Criminal misconduct under Sec. 13(1)(d)(i) of the Act, 1988.
13.Keeping in view, the above essential ingredients of the offence, I have gone through the evidence adduced by the prosecution. In all prosecution has examined Pws 1 to 9 and
Ex.P1 to P14 were marked and Mos 1 to 8 are marked.
9
14.Now coming to the evidence on record. PW1-Payyavula
Ramesh, the defacto-complainant, who lodged report under
Ex.P1 with the police has deposed in his evidence that he is a practicing Advocate at Armoor and also he used to undertake the contract works, but not a regular practitioner in the Court.
He further deposed that he got contract work worth
Rs.1,00,000/- for cleaning and painting of gantry crane at Sriram
Sagar dam and he entered into an agreement with A.E Irrigation
Department on 28.11.2008 and executed the work entrusted to him. PW1 also deposed that after execution of the agreement he received the work order for execution of the work, and completed work by 20-12-2008. Thereafter, on 26-12-2008 for the purpose of getting the bill, he met Asst.Engineer,
Sri Bojadas i.e., PW3, and he advised him to meet the Executive
Engineer for getting approval of the bill amount.
15.It is the case of the PW1 that the accused officer who is working as Dy.Executive Engineer, by that time, is Incharge of
Executive Engineer also and as such he met him on on 31-12- 2008 at his office at about 11.00 AM and then when he discussed about the bill amount, he asked to meet the Asst.
Engineer/PW3-Bojadas and when he met PW3, PW3 stated that accused officer being Incharge Executive Engineer, he is demanding Rs.10,000/- for approving the bill and when he 10 expressed his inability to pay huge amount, PW3 stated that he will convince the accused officer to see that the bill is passed and asked him to bring Rs.7,000/- instead of
Rs.10,000/-. PW1 also stated by giving such instructions
Asst.Engineer-PW3 directed him to meet the accused officer by handing over the connected bill file and asked him to meet AO along with Rs.7,000/-.
16.PW1 further deposed in further chief dt. 22.8.2017 that he approached accused officer on 31.12.2008 and on that day accused officer demanded Rs.10,000/- and reduced the same to Rs.7,000/-, as such because he is not willing to pay the bribe he approached ACB officials and lodged report against accused officer. PW1 also deposed in his evidence, when he lodged report with the police, the ACB officials asked him to come on 2.1.2009 along with proposed bribe amount of Rs.7000/- at 7.00 am. Accordingly, he went to the office of ACB and met
Dy.Superintendent of Police and also observed 3 Inspectors of
Police are present along with two mediators and the
Dy.Superintendent of Police introduced him to the mediators and handed over copy of the complaint of PW1 marked as Ex.P5 to the mediators, after going through the contents of complaint, ascertained the facts stated therein to be true and corrected through PW1 and then mediators signed on it. Thereafter,
Dy.Superintendent of Police asked PW1 about the tainted 11 amount of Rs.7,000/- and PW1 handed over cash of Rs.7,000/- with denomination (500x10=5000/- and 1000x2=2000/-), mediators noted the denomination and currency note numbers.
Then Dy.Superintendent of Police called upon a constable and directed him to apply some powder to the currency notes and accordingly the constable came and applied chemical powder to the currency notes and gave that amount to PW1 to keep in the left side empty shirt pocket and thereby asked him to give that amount to accused officer if he demanded, but not otherwise.
Thereafter, Dy.Superintendent of Police has asked the constable to dip his hand fingers in Sodium Carbonate Solution and when the constable did so, the solution turned into pink colour. Accordingly, Dy.Superintendent of Police has explained the significance of the phenolphthalein test and further instructed PW1 not to shake his hands with accused officer
before or after acceptance of tainted amount and immediately
after acceptance, directed him to give the signal by wiping his face with a kerchief.
17.PW1 also deposed that after completion of chemical test and other formalities at the Office of Dy.Superintendent of
Police by 9.30 am, at about 9.45 am they all started from the
ACB office to the office of Executive Engineer, Sriram Sagar
Project and stopped the vehicle at bus stand at a distance of 500 meters from the office of Executive Engineer (accused 12 officer). Dy.Superintendent of Police and other officials have taken vantage positions nearby the office of Executive Engineer and asked PW1 to go to the office of accused officer and give the tainted amount if demanded by accused officer . Then PW1 went to the office of accused officer at 10.50 am and met accused officer and asked about his file and AO enquired him whether he brought the amount or not, then PW1 replied that the amount is ready and then he asked him to handover the same and thereafter PW1 has given the amount of Rs.7000/- (tainted cash) kept in his left side shirt pocket with his right hand and gave the same and accused officer received the same with his right hand and kept in his left side shirt pocket. When he asked about his work he picked up file from his table drawer and started signing the same and asked him to come after 30 minutes. Then he went outside and gave pre arranged signal.
18.On observing the same Dy.Superintendent of Police and trap party members rushed into the office of accused officer and asked PW1 to wait 30 minutes. After 30 minutes
Dy.Superintendent of Police called PW1 and enquired him as to what was happened from the time he left the trap party till he relayed the signal and PW1 narrated the entire facts to
Dy.Superintendent of Police and Dy.Superintendent of Police recorded version of accused officer. PW1 further deposed that after 15 days of the trap, his statement was recorded before 13
Judl.Magistrate of First Class, Kamareddy under Section 164
Cr.P.C and prosecution also got marked Ex.P2 file pertains to work order No. DIV-2/DB/D3 (15 sheets), ExP3 is the file pertains to original bill (5 sheets). ExP4 is file pertaining to comparative statement and quotation for work order (20 sheets) through PW1.
19.In support of the prosecution case, out of two mediators one of the mediator examined as PW2-G.Prabhakar and another mediator LW3-Ganesh has not been examined by the prosecution. Hence, I have gone through the evidence of PW2 and he deposed that he was working as Sub Inspector,
Prohibition & Excise and Asst. Commissioner, P & E has directed him to go to the office of the ACB, Nizamabad 2.1.2009 and accordingly he went to the office of the Dy.Superintendent of
Police, ACB on 2.1.2009 at about 8.10 am and by that time there were 3 inspectors present in the Office of
Dy.Superintendent of Police and at about 8.30 AM
Dy.Superintendent of Police called Pw1 inside the chambers and introduced him to PW2 and LW3-Ganesh and thereafter copy of complaint was confronted to him by the Dy.Superintendent of
Police and after going through the facts affirmed the contents of complaint are true and they attested the copy of complaint under ExP5. They also ascertained that there were no financial transactions between himself and accused officer. Thereafter, 14
Dy.Superintendent of Police asked Pw1 whether he brought the proposed bribe amount or not on that Pw1 affirmed that PW1 has brought the proposed bribe amount of Rs.7,000/- and produced the said amount before the Dy.Superintendent of
Police.
20.PW2 also deposed similar to that of PW1 that the currency note numbers were noted down by the mediators and phenolphthalein test was conducted by the Dy.Superintendent of Police by way of demonstration through the assistance of the constable and explained the significance of the test and also the trap to be laid against the accused officer. PW1 specifically deposed that the Dy.Superintendent of Police prepared Sodium
Carbonate Solution and demonstrated the phenolphthalein test and the constable who applied phenolphthalein powder to the currency notes has rinsed the fingers in Sodium Carbonate
Solution and the solution became pink colour. Further the mediator report was drafted by LW3-Ganesh and PW2 signed on it along with LW3-K.Ganesh as per Ex.P6. After completion of the pre trap procedings under Ex.P6, on the same day at about 9.45 am they all started in TATA sumo vehicle along with Pw1 and ACB staff and proceeded to Sri Ram Sagar Project,
Pochampad and reached there at 11.00 AM and after taking vantage position by the trap party, PW1 was asked to proceed to the Office of the accused and if accused officer demanded 15 bribe amount, PW1 was asked to handover the amount and give the pre arranged signals. Accordingly, PW1 went into the office of accused officer at about 12.10 pm and after some time he came out from the office of accused officer and gave pre arranged signal by wiping his face with a kerchief. Immediately, the trap party rushed into the office of accused officer and caught hold him and conducted detailed enquiry by calling PW1 into the office of the accused officer and the tainted amount of
Rs.7,000/- recovered from the possession of accused officer and the same was marked as MO1.
21.According to the version of PW2, Mediator Report-II was prepared under Ex.P9 and some documents were seized by the
Dy.Superintendent of Police. According to PW2 after conducting
Mediator Report-II under Ex.P9, Dy.Superintendent of Police also seized Ex.P2 work order consisting of 15 sheets, Ex.P3 original bill of 5 sheets and Ex. P4 is comparitive statements file and furthermore the sample phenolphthalein powder was also sealed in a cover used in the pre trap proceedings marked as
MO2 and sodium carbonate powder used in the pre trap proceedings is also seized under MO3, one sealed cover containing sodium carbonate powder used during post trap proceedings was marked as MO4, one sealed bottle containing right hand wash of accused officer marked as MO5, sealed bottle containing left hand wash of accused officer marked as 16
MO6, sealed bottle containing resultant solution of contacted portion of left side shirt pocket marked as MO7, one full shirt of accused officer in white colour with black stripes marked as
MO8. The rough sketch under Ex.P8 was also drawn on the spot and the trap proceedings concluded by 5.00 PM and the accused officer was arrested by 5.15 PM and the accused officer was taken into custody by the ACB officials. Since another mediator has not been examined on behalf of the prosecution and the Trap Laying Officer cited as LW10 is also not examined on behalf of the prosecution on the ground that he died. So also the Investigation Officer, who filed the charge sheet cited as LW13 and he is also not examined on behalf of the prosecution as he died. Therefore the main officials of the
ACB who laid the trap and apprehended the accused officer on the ground of demand and acceptance of bribe and also who filed charge sheet are not examined. Therefore the evidence of
PW1 and PW2 has to be scrutinized with reference to the oral and documentary evidence adduced on behalf of the prosecution.
22.Before going to the evidence in cross examination of PW1 and PW2, it is just and necessary to look into the evidence of
PW3 who is the then Asst.Engineer of Irrigation Department and subordinate to the accused officer and admittedly he was working as Asst.Engineer in Sub division No.4, Division No.2 at 17
Balkonda Mandal as on the date of this case. PW3 categorically stated that in the 2008-09 the Executive Engineer granted technical sanction vide Dr. No.20/Division No.2/2008-09, dt.1.5.2008 for Rs.4.35 lakhs pertaining to gantry crane of
Sriram Sagar Project in which the sum of Rs.1.5 lakhs allotted for carrying out painting works, on that quotations received by the Executive Engineer pertaining to the painting work and as per the comparative statement, the work order was alloted to the lowest quoted bidder i.e., PW1 and the work was entrusted to PW1 by virtue of the work order issued by the Executive
Engineer.
23.PW3 further stated that PW1 has completed the work and he supervised it and then five bills were submitted each contains Rs.19,975/- and the Executive Engineer is the final authority to pass the bills. Subsequently he came to know through TV news that accused officer was trapped by ACB officials in connection with the bills. ExP4 is the comparative statement prepared by PW1 and ExP3 is the 5 bills prepared by him. Therefore, so far as Ex.P3 to P5 is concerned ACB officials examined him.
24.The other witnesses examined on behalf of the prosecution i.e., PW4-Ajit Kumar Chaturvedi who is the then Dy.Executive
Engineer in Sub Division No.4 (Gates Sub division) of Division 18
No.2, Sriram Sagar Project, Balkonda, Nizamabad District and he deposed that for the year 2008-2009 they have prepared estimates for maintenance of Granty Crane vide
Dr.No.20/Divn.No.2/Sriram Sagar Project/2008-09, dt.1.5.2009 for Rs.4.35 lakhs in which provision is made for painting work of
Gantry Crane for Rs.1.5 lakhs, for which quotations were called for from the Division office, Executive Engineer office and the same were submitted to him for preparing the comparative statement. After preparing comparative statement Pw1 became the lowest bidder, as such painting work was allotted to Pw1 and he has completed the work and submitted his bills through
Executive Engineer, but for want of work order the bill was not signed and the work order has to be given by Executive
Engineer to the Sub Division office but it was not received by the accused officer, meanwhile he came to know accused officer was trapped by ACB officials.
25.So also another circumstantial witness PW5-V.Mohan
Reddy, Head Draughtsman in Sriram Sagar Project,
Pochampad, Balkonda mandal, Nizamabad has deposed in his evidence that whatever the files received in the office through
Inward section will be placed before the Executive Engineer for his endorsement and after taking the endorsement the files will be given to drawing branch section and then files will be put up
before Executive Engineer for orders. In the present case file
19 of PW1 has not come to his table and no correspondence was made in respect of PW1 to the DB Section (Drawing Branch).
Later, he came to know that on 2.1.2009 accused officer was trapped by the ACB officials on the allegation of demand and acceptance of Rs.7,000/- from PW1. He also deposed that Ex.P2 work order is issued by Executive Engineer (accused officer ) directly and not received in Inward Section. Ex.P4 is comparative statement also approved by the Executive
Engineer directly and the same was not received in Inward
Section. However ACB officials examined him and recorded his statement.
26.PW6-Prabhakar Reddy, the then Superintending Engineer has deposed that as per the GO issued by the Government, the
Executive Engineer can grant technical sanctions for the works upto ten lakhs. In this case, annual maintenance estimate was prepared for total maintenance of works to a tune of Rs.4.35 lakhs out of which there was a provision for cleaning and painting of Gantry Crane to a tune of Rs.1.05 lakhs. The
Executive Engineer is empowered as per GO.M.S.No.23 of
March, 1999, Executive Engineer is empowered to give technical sanction up to Ten Lakhs. The Executive Engineer is also having powers to give works on nomination upto Rs.20,000/- by inviting quotations. Work will be awarded for the lowest bidder by giving work order and agreement bond. In the present case 20
Executive Engineer, Division No. II has called for quotations for cleaning and painting work to the Gantry Crane and the lowest bidder was PW1 who gave lowest quotation and accordingly the work order was given to PW1 basing on comparitive statement and PW1 has completed his work and thereby submitted his bills. For completed work, the procedure for preparing the bills starts from section office i.e., Asst.Engineer/AEE. In this case
Asst.Engineer (Pw3) has prepared the bill, in bill forms only and
Pw1 has taken the bills from Asst.Engineer and submitted to the
Executive Engineer (accused officer ) directly and as a matter of fact, the bills should go in proper channel through Dy.Executive
Engineer. The bill forms have been taken by Pw1 and signed by accused officer. Actually the Executive Engineer has to return the bill by endorsing to the Dy.Executive Engineer and for resubmission for arranging payment. In the present case, it is not properly and procedurally done. It was learned that on 2.1.2009 accused officer has accepted an amount of Rs.7,000/- from Pw1 and trapped by ACB officials. In this connection ACB officials examined and recorded my statement.
27.In the cross-examination of PW4, PW5, PW6, it is to be noted that they are cited as witnesses and examined on behalf of the prosecution to prove the procedure contemplated in entrustment of contract works, preparation of bills in connection with Sriram Sagar Project contracts including the present 21 contract work allotted with PW1. According to their evidence,
PW1 was allotted with the contract work vide work order under
Ex.P2. According to their oral evidence PW1 was lowest bidder of the contract work. As per the comparative statement relied on by prosecution under Ex.P4 and quotations the lowest quotation for 47 sqm is at the rate of Rs.425/- totalling to
Rs.19,975/- and other two bidders namely Vishnu and Sridevi quoted the other two highest amounts @ 435 and 430 respectively. The quotation sheets also enclosed to Ex.P4.
After completion of the work by PW1, the bills were also prepared under Ex.P3 which bears signature of accused officer and Section Officer i.e., Asst.Engineer/PW3. Therefore, there is no dispute with regard to the work done by PW1 and according to the evidence of PW1 he entered into the contract work with
Asst.Engineer to complete the cleaning and painting for Gantry
Crane. These witnesses PWs4 to 6 circumstantial witnesses, cross examination is also pertaining to the procedure contemplated in passing the bills.
28.The Learned counsel for the accused officer has tried to elicit from PW4 to 6 that without following the procedure and without recording the measurement of the work done by PW1, without maintaining M-Book, the bills were prepared and as a matter of fact the cheque bearing No. 808594 to the tune of
Rs.93,583/- was paid to PW1 on 18.7.2009 subsequent to the 22 suspension of the accused officer and the successor of accused officer has passed the bill. The PW4 admitted in his cross- examination the actual measurements were prepared by PW3 after trap of the accused officer . PW4 also admited that “*….It is true at the time of putting the bill by
PW3 before me, entire file including the work order issued to the Contractor, was not placed
before me.”
29.Accordingly Pws 5 and 6 also cross examined by the
Learned counsel for the accused officer and it is specifically elicited from PW5 that “it is true during my tenure all the work orders were issued by accused officer after I put up the same before him. I do not know that till the date of the trap no work order was issued to PW1 and no measurements were recorded in M-Book.”
30.Similarly PW6 also cross-examined by the Learned defence counsel at length with reference to the Ex.P2 to P4. In his cross examination at Page No. 3, PW6 the then Superintending
Engineer categorically deposed that 23 “on the date of my examination by ACB officials, I was not shown any files or bills or work orders to me by ACB officials.”
He further admitted that...
“It is true that I am not concerned with the work executed by PW1 and that I never visited the spot and investigated the work at any time. The facts narrated by me in my chief examination is based on brief given to me by the staff after the trap.”
31.Therefore, it is clear that PW6 is not direct witness to the present case. Whereas PW7-Vijay Kumar, Secretary to the
Government, CAD, Irrigation has deposed with regard to the sanction issued against accused officer for prosecution for the offence which he charged with. Ex.P10 is the G.O.Ms.No. 294, the sanction order issued by the Government to prosecute the accused officer. There is no dispute that the accused officer is the public servant and the sanction obtained in terms of Section 19 of P.C.Act. Though accused officer has disputed that the sanction order is not issued by the application of mind and PW7 is not competent to speak is not tenable.
32.PW8-A.Laxminarayana, is the Inspector of Police, who assisted the Trap Laying Officer i.e., Dy.Superintendent of Police, 24
Anti Corruption Bureau on 2.1.2009. PW9-K.Saidulu, is also one of the assisting Officer to Dy.Superintendent of Police, Anti
Corruption Bureau in detecting the case. But Dy.Superintendent of Police, Anti Corruption Bureau, the Trap Laying Officer has not been examined by prosecution as he is no more.
33.Whereas DW1 is SD-Mohamood, the Superintendent,
Irrigation Department of Sriram Sagar Project has been examined on behalf of the defence of the accused and got marked Ex.X1-Authorization letter dt. 6.12.2018. Ex.D4 is the attested copy of the log book for the month of December, 2018 pertaining to the vehicle of accused officer bearing No. AP-01-
TV-0089. Ex.D4 got marked on behalf of the accused to establish the fact that on 26.12.2008 and on 31.12.2008 accused officer was on camp duty from morning to evening and the allegations of PW1 that he met accused officer on 31.12.2008 and he demanded bribe amount is a false story.
However, Ld.SPP has cross examined DW1 with reference to the nature of the duties of DW1 and it is elicited from him that he was promoted as Superintendent in the year 2016 and worked in the Office of Sriram Sagar Project, Executive Engineer
Division-II situated at Pochampad village and his office timings are from 10.00 AM to 5.00 PM and the registers and records such as Attendance Register of the staff, log book, tour diary,
Fortnight Progressive Report are under the control of Junior 25
Assistant and the then Junior Assistant is one Fasiuddin and log book is maintained for the purpose of official vehicles used by the superior officers and the vehicle bearing NO. AP-01-TV-0089 was being used by Dy.Executive Engineer (AO) as he being the
Incharge of Executive Engineer during 2008-09. Therefore, looking into the evidence of DW1 and the documents marked under Ex.D1 measurement book and Ex.D4 copy of the log book for the month of December, 2008 in respect of vehicle bearing
No.AP-01-TV-0089, it is to be appreciated the evidence in cross- examination of PW1,PW2 and PW3 and also PW8 and PW9.
34.No doubt PW8-A.Laxminarayana and PW9-K.Saidulu,
Inspectors of Police, both are assisting Officers to LW10-
N.S.Karunanidhi, who is Trap Laying Officer. They have supported the version of prosecution in respect of Ex.P1 report of PW1 and also the evidence of PW2 and the documentary evidence under Ex.P6 and Ex.P9 mediators report. The rough sketch under Ex.P8 and the Attendance Register of the staff of
Executive Engineer marked as Ex.P7 are also not in dispute.
Ex.P14 Job chart of the accused officer and Incharge proceedings issued in favour of the accused officer as
Executive Engineer under Ex.P12 is also not in dispute. The only disputed facts by the defence of the accused is the allegations made against accused officer by PW1 and the evidence adduced by the prosecution through PW2 and PW3.
26
35.According to the cross-examination of PW1 and PW2 as well as the PW3, the line of defence of the accused officer is total denial of the demand and acceptance of the bribe as alleged in Ex.P1 and the evidence of PW1, PW2 and PW9. The
Learned counsel, apart from pointing out the evidence in cross- examination, it is also submitted in his written arguments about the discrepancies, and the contradictions in the evidence of prosecution witnesses. It is true in the cross examination of
PW1 it is specifically denied the demand and acceptance of bribe amount as alleged by prosecution. Accused officer submits that PW1 stated in his evidence that he approached accused officer on 2.1.2009 at about 12.00 Noon and informed that Asst.Engineer/PW3 sent the file through PW1 regarding the pending work done by him to Gantry crane and handed over the file to him and then accused officer has questioned that why
Asst.Engineer/PW3 sent the file through him and whereabout the work order and Measurement book and while accused officer was looking at the file, PW1 has forcibly kept the tainted amount in his shirt pocket through accused officer has obstructed the same with his right hand and immediately PW1 went away hurriedly and immediately ACB officials entered into and caught hold.
27
36.It is also suggested to PW8 and 9 that after arrival of ACB officials accused officer has instantaneously represented that he neither demanded nor accepted any bribe amount from PW1 and immediately the ACB officials without listening to him conducted chemical test and further more forcibly taken the file from accused officer and verified it. It is also the contention of accused officer by way of suggestions to PW1, PW2 and PW8 that the file found without signature of accused officer and then
Dy.Superintendent of Police has insisted the accused officer to put his signature on bill and the work order as well as the comparative statement marked as Ex.P2 to P4. But in this case, Dy.Superintendent of Police who has laid trap has not been examined on behalf of the prosecution and consequently accused officer has got no opportunity to cross examine the
Dy.Superintendent of Police who has laid the trap.
37.Though PW8, PW9 who assisted Trap Laying Officer, their evidence in cross examination is inconsistent. More particularly, it is to be noted that in chief examination PW1 has categorically stated that on 26.12.2008 when he met the Asst.Engineer/PW3 regarding the bill he did not met the accused officer who is the
Incharge Executive Engineer. He also stated that PW3 told him that Executive Engineer/accused officer is demanding
Rs.10,000/- and it is not the case of PW1 that the accused officer demanded the bribe amount. However, PW1 stated that 28 he met accused officer on 31.12.2008 and at that time he demanded the bribe amount of Rs.10,000/- and reduced the same to Rs.7,000/-. This statement of the witness PW1 is inconsistent with his evidence and it is the defence of the accused that on 31.12.2008 AO is not at all present in the office and he is on other duty and on camp and he went out from the office along with vehcile bearing No.AP-01-TV-0089 and he was on duty from 8.00 AM to 8.00 PM. In support of the defence of the accused officer he relied on Ex.D4 log book (abstract) for the period December, 2008. As per the entries in log book dt. 31.12.2008, the vehicle bearing No. AP-01-TB-0089 was engaged from 7.00 AM to 8.00 Pm for inspection work of
Sriram Sagar Project Pump House, Nawab Tank, Nandipet
Mandal and it bears signature of the accused officer.
38.Furthermore, K.Saidulu, Inspector has stated that PW3 stated before the Inspector while recording the statement as in
Ex.D3 Portion of 161 Cr.P.C statement that reads as “the bill was submitted to the Division
Office directly by the contractor.” and further admitted that “PW9 has not conducted any investigation in the case and not even collected any documentary evidence and he has no idea about Ex.P12 to P14.” 29
Further PW8 also admitted in his cross examination that “in Ex.P4 comparative statement there is no signature of accused officer and in
Ex.P3 also there is no signature of
Dy.Executive Engineer.”
39.Apart from these facts pointed out by Learned defence counsel, it is also pointed out by Learned defence counsel as to the evidence of PW1, contending that his testimony is not trustworthy and is unreliable. Therefore, I have carefully scrutinized the evidence in cross-examination of PW1. Infact, the evidence of PW1 was recorded on different dates. Initially he was examined in chief partly on 8.11.2016 and his further evidence in chief was on 21.3.2017 and subsequently on 22.8.2017 and he was cross-examined on 12.9.2017 and on 3.10.2017. Accordingly, the testimony of PW1 was recorded by prosecution including cross examination. It appears whenever the testimony of PW1 becomes inconsistent, his evidence is deferred and again examined subsequently. Therefore, on a scrutiny of his testimony, the testimony of PW1 is in twisted manner. One way he supports the prosecution case and the other way he depose adverse to the prosecution version.
However, according to own admission of PW1, there was no any agreement in writing between he and the Executive Engineer in 30
Irrigation Department for attending contract works and he also further admitted that the work in question i.e., cleaning and painting for Gantry Crane was entrusted by Asst. Engineer to him and further admitted that “It is true on the date of trap i.e., on 2.1.2009 I approached accused officer along with the file given by
Asst.EngineerBojadas-PW3and handed over the said file to accused officer representing that the
Asst.Engineer sent the said file. The file sent to Bojadas relates to painting work of Gantry crane.
*…. It is true when accused officer questioned me why the
Asst.Engineer sent the file through me and where is the M Book relating to the said work, I informed the accused officer that I executed the said work and as per the instructions of
Asst.Engineer to handover the file I handed over the same to accused officer . While accused officer was looking into the file handed over by me, I forcibly kept the tainted amount in the shirt pocket of the accused officer and accused officer involuntarily obstructed the same with his right hand. Thereafter, I came out of the room of the accused officer without heeding the accused officer 31 calling me and immediately ACB approached the accused officer .
This statement of PW1 itself is sufficient to show his evidence is unreliable and not worthy reliable whatever he deposed in his evidence in chief. Therefore, I am in acceptance with the submissions of Learned counsel appearing on behalf of the accused officer that the testimony of PW1 is not wholly reliable and wholly unreliable and also his testimony is neither wholly reliable or wholly unrealible and in support of his contention he relied on a decision reported in T.Ramesh Reddy Vs.
State of Andhra Pradesh (2010(1) ALD (Crl.) 342 (AP))
When a case rests upon the evidence of a solitary witness, the law is well settled that it must be true, trustworthy free from doubt and wholly reliable, when the evidence of a witness is put in the category of wholly reliable, then there is no legal bar to base conviction on the solitary testimony of the witness. Therefore the evidence of PW1 has to be scrutinized carefully and cautiously so as to place any reliance on his evidence. On this aspect it is pertinent to refer to a decision in “Vadvivelu Thevar Vs. The State of madras 1957 SC 614” where it was clearly held thus
Para 10 generally speaking oral testimony in 32 this contest may classified into these categories namely:
1. wholly reliable
2. wholly unreliable
3. Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict of it may acquit on the testimony of a single witness, it is found to be above re-approach on suspicion of interestedness, incompetence or subordination.
In the second category the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial.
40.Smilarly, pointing out the evidence in cross-examination of
Pws 1 to 3 as well as PW8 and 9, the Learned counsel also relied on a decision reported in P.Chandra Sekharam Vs.
State (2012(2) ALD (Crl.) 131 (AP)) wherein it was held as under
Prevention of Corruption Act, 1988 – Sec.
7,13(1)(d) and 13(2) – Acquittal – Doubtful evidence – Accused allegedly demanded bribe of Rs.300/- from PW1, trap conducted and tainted amount recovered from almirah of accused in his office – Phenolphthalein test conducted on fingers of left hand of accused gave positive result, but right hand 33 fingers did not yield any result – case of accused that he received no bribe amount from PW1 though he tried to thrust something in his left side shirt pocket, he pushed it away with his left hand and that
PW1 without his permission kept some amount in almirah – On one of the two dates on which accused is said to have demanded illegal gratification from PW1, accused was on casual leave and on the other date it happened to be a public holiday being a Sunday – Therefore, question of accused demanding alleged bribe amount from PW1 on said dates does not arise – The other date is not mentioned in Ex.P1 complaint, which amounts to an omission – Evidence of witnesses does not corroborate evidence of PW1 and suffers from discrepancies, inconsistencies and variations – prosecution, held, failed to prove its case beyond all reasonable doubt – Criminal appeal allowed – Conviction set aside.
41.In view of the facts on record, and evidence lt in by prosecution as well as the accused, the decisions relied on by the counsel for the accused officer in Sudershan Parek Vs.
State of A.P. (2008 (2) ALD (Crl.) 840 (AP) which is as follows:
Heavy duty cast upon the prosecution to prove demand and acceptance. Either of two, if not 34 established accused cannot be held guilty of offence punishable under section 13(1)(d) r/w 13(2).
AND
In K.Giri Vs. State of A.P. (2008 (2) ALD (Crl.) 821 AP) wherein it was held
Once a person acts as mediator on behalf of prosecution party he loses his character as independence witness and automatically becomes a part of prosecution story.
The above case law are relevant in the present context of the present case.
42.Undoubtedly, heavy duty casts upon the prosecution to prove the demand and acceptance and either of two if not established, the accused is entitled to benefit of doubt. It is also true as contended by the counsel that once a person acts as mediator on behalf of the prosecution party he looses his character as an independent witness and automatically he become a part of the prosecution story. Therefore, in the light of the decisions relied on by the counsel for the accused officer and material evidence on record, the testimonies of PW8 and 9 are not sufficient without sufficient corroboration from the evidence of PW1. Infact, the evidence of PW1 is inconsistent with reference to the prosecution story and the collusion between Pw1 and PW3 can not be ruled out as contended by 35
Learned counsel for the accused officer. At the same time, the arguments submitted by prosecution are not by way of written arguments and certain case law the Learned Spl.Public
Prosecutor has pointed out the evidence of PW1 and also PW2 and PW3 contending that their evidence is in corroboration to each other and the mandatory provision u/s. 20(1) of P.C.Act provides legal presumption to draw inference that demand and acceptance of the bribe by the accused officer.
43.Similarly, written arguments filed by the prosecution agency and the case law relied on by prosecution also to be looked into:
1) In between State of A.P. Vs. K.China Swamy reported in(2016) 2 SCC (Cri) 355 wherein it was held.
Public Accountability, Vigilance and
Prevention of Corruption – Prevention of
Corruption Act, 1988 – Ss 7 and 13(2) r/w 13(1)(d)(ii) – Illegal gratification –
Respondent, Assistant Commercial Tax
Officer demanded bribe for issuing registration certificate for PW-1' Kirana &
General Stores – A trap was laid and he was caught red handed with bribe money –
Conviction restored.
Trial Court convicted respondent under Ss 7, 13(1)(d) r/w 13(2) of P.C.Act – high Court set aside conviction on basis that the phenolphthalein powder was also on the 36 daybook which the respondent had signed, and that normal practice is to receive money with right hand whereas the respondent had allegedly received the amount with his left hand.
Held, it was never the contention of accused that the daybook itself had traces of phenolphthalein powder – It was so contended the IO could immediately have subjected the daybook itself to appropriate test – The other contention that a person would not normally receive money by his left hand, again has no basis – Respondent – accused accepted Rs.400 only out of
Rs.500 offered by PW1 as per demand and instructed that Rs.100/- be given to V, which would negate the theory of any accidental touching of tainted notes – This part of the case and aspects concerning demand and acceptance completely stood proved – Conclusions of the High Court cannot be even be termed as possible view in the matter – Appeal Allowed.
2) in between D.Velayutham Vs. State Represented by
Inspector of Police, Salem Town, Chennai in(2016) 1 SCC (Cri) 105 wherein it is held
Criminal Trial – Witnesses – Trap witnesses – not to be treated on par with accomplice/particeps criminis/ - Trap witnesses is on a higher pedestal – 37
Corroboration is not mandatory in case of trap witness.
3) In between Chaitnaya Prakash Audichya Vs. CBI in (2016) 1 SCC (Cri) 186 wherein it is held
Public accountability – Vigilance – P.C.Act, 1988 – Section 7,13(1)(d) r/w 13(2) and Section 20 of
P.C.Act, 1988 – illegal gratification – demand and acceptance of – fully established – testimonies of complainant and punch witness – completely consistent – tainted currency notes – recovered from person of accused – phenolphthalein invocable u/s.20 of P.C.Act, 1988 – stood unrebutted – Conviction confirmed.
4) In between Indra Vijay Alok Vs. State of
Madhyapradesh reported in (2016) 1 SCC (Cri) 540 wherein it is held “P.C.Act, 1988 – Section 7, 13 (1)(d) r/w 13(2) of
P.C.Act, 1988 and Section 20 – demand and acceptance completely established – evidence of complainant, corroborated by statement of punch witnesses – presumption u/s.20 unrebutted – Conviction confirmed.”
5) In Reparla Venkata Gopala Ratnam Vs State of A.P.
reported in 2014 (1) ALD Crl 434 wherein it was held “The Hon’ble High court of AP held that the prosecution need not be proved by direct evidence.” 38
6) In Raghubit Singh Vs State of Haryana reported in AIR 1974 SC 1516wherein it was held “The Hon’ble Supreme Court held seizure - of currency – trap is resipsa loquitut.”
7) In Hazari lal Vs Delhi Administration reported in AIR 1980
SC 873 wherein it was held
“The Hon’ble Supreme Court held that raised presumption u/s 114 (a) of Indian Evidence
Act recovery notes from accused would raise presumption that the accused received the bribe amount. “
8) In B. Noha Vs State of Kerala and another reported in 2007 (1) SCC Crl 711 wherein it was held “The Hon’ble Supreme Court held that while referring the judgment in State of AP vs
Kommaraju Gopala Krishna Murthy (2000 (9)
SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by accused.”
9) In State Vs. Jhan chand reported in 1984 Crl.J.NOC (104)
Delhi wherein it was held
Regarding the question as to the capacity of accused to do favour or disfavour at the time of demand of bribe, the fact that he was not in 39 a position to show any favour is of no consequence.
10) In Phula Singh V. State of Himachal Pradesh reported in AIR 2014 Supreme Court 1256 wherein it was held (A) P.C. Act, Ss 7, 13 (2) – Illegal Gratification –
Proof – Complainant lodged FIR alleging demand of bribe by appellant for cancelling demarcation report – No explanation furnished by appellant in respect of recovery of
Rs.1,000/- form pocket of his pant – Nor he could furnish any information as to how his fingers turned pink on being washed , with sodium carbonate solution – Appellant also failed t o furnish explanation in his statement under S.313 Cr.P.C. regarding any incriminating material that has been produced against him –
Order of High Court reversing Judgment of acquittal is not perverse - No interference.
Cr.P.C. (2 o f 1974), S. 313 (Paras 6, 8, 9, 11) (B) Cr.P.C. (2 of 1974), S. 313 – Examination of accused – Accused has right to maintain silence during examination or even remain in complete denial when his statement u/s 313 is being recorded – But in such an event adverse inference against him could be drawn.
11) In M. Narsinga Rao Vs. State of A.P. reported in 2001 (1) ALD (Crl.) 407 (SC) wherein it was held
I) P.C. Act 1988 – Section 20 (1) – Presumption under when the gratification is found accepted 40 by the Accused, a legal presumption can be drawn that such gratification was accepted as a renewal for doing public duty - It is a compulsory presumption – Presumption U/s.
114 of evidence Act – Can also be drawn.
II) Evidence Act, 1872 –Sections 4 and 114 –
P.C. Act 1988, Section 20 (1) – “Factual presumption” and legal presumption” –
Explained.
III) Evidence Act, 1872 – Section 3 – work “proved”- explained.
12) In B.Prameshwara Rao Vs. State reported in 1999
Crl.L.J. 2059 wherein it was held “ (A) Prevention of Corruption Act (49 of 1988),
S. 13(1)(d)(i)I(ii) – Criminal misconduct by public servant – Proof – Trap case – Accused a
Railway employee demanding bribe to help complainant in getting appointment in Railway restaurant – Recovery of money from accused -
Phenolphthalein test proved – Fact that money changed from hand of complainant to accused not disputed – Reason given therefore by accused not acceptable – Certificate of complainant recovered from drawer of accused – No reason for false implication – Requirement of S.13(1)(d)(i)(ii) – Satisfied – Conviction proper.
13) In Md.Iqbal Ahmed Vs. State of A.P. reported in AIR 1979 S.C. 677 : 1979 Crl.L.J.633 wherein it was held that 41 “it is incumbet on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either by producing the original sanction which itself contains the facts constituting the office and grounds of satisfaction or by adducing evidence alinude to show the facts placed before the sanctioning authority and the satisfaction arrived by it.”
14) In Madhukar Bhaskar Rao V/s. State of Maharastra reported in 2001 (1) ALD (Crl) 77 (SC)wherein it was held “P.C. Act, 1988 – Section 20 and 7 – Word ‘gratification ‘ mans any payment for giving satisfaction to a public servant who received it –Public servant found in possession of currency notes smeared with phenolphthalein – presumption can be drawn that he accepted the gratification.”
15) In State of Maharastra Vs. Narsingara Rao Gangaram
Pimple reported in AIR 1984 S.C.-63 wherein it was held “B) Evidence Act (1 of 1872) S. 133 – Trap witnesses Evidence of Appreciation of –
Touchstone to be applied – Decision of Bombay
High Court. D/22-23/1/1976 Reversed (PC 1860 S.161 and 162)
Where in a trap case, the judge magnified every minor detail or omission to falsify or 42 throw even shadow of doubt on the prosecution evidence then, it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. In deed, if such harsh touch stone is prescribed to prove such a case it will be difficult for the prosecution to establish any case at all.
Decision of Bombay High Court D-22/23-1- 1976, reversed.
16 ) In State of A.P. Vs. R.Jeevaratnam reported in 2004 (6) S.C.C.488 wherein it was held “(A) Prevention of Corruption Act, 1988 – Ss, 20(1), 7 and 13(1)(d) and (2) – Presumption under S.20(1) – Applicability – Prosecution under S.13(1)(d) r/w S.13(2) – Evidence of
Prosecution witnesses including that of an independent witness showing that for clearing the tender file of the complainant, the accused officer of the Port Trust had demanded and received money in the specified hotel room and was caught by CBI red handed with marked money (Rs.10,000 in this case) in a briefcase in his possession – Prosecution evidence not shaken in cross-examination – On evidence, accused's statement that money must have been placed in his briefcase when he had gone to the bathroom found to be unbelievable – No explanation by the accused for going into the hotel room – In such circumstances, held, the presumption under
S.20(1) did arise – Contention S.13(1)(d) demand has also to be proved, rejected as in 43 the present case the accused was also charged of an offence under S.7 and even otherwise the demand had been established by evidence.
17 ) In Sham Swarup Bhatnagar Vs. The state reported in 1983 (1) Crimes - 77 “Even One truthful witness is sufficient to convict a person under Prevention of
Corruption Act if tainted money is recovered.”
18) In State of Kerala Vs. M.M.Mathew and another reported in AIR 1978 S.C. 1571 “A) Evidence Act (1 of 1872) S. 2 – Evidence –
Appreciation of - Interested witness – Evidence of I.O.
The courts of law have to judge the evidence
before them by applying the well recognized
test of basic human probabilities. The evidence of the I.O. can not be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic wroth and can not discarded merely on the ground that being public servants they are interested in the success of their case.” 44
19) In Dr. Subrahmanian Swamy Vs Dr. Manmohan singh reported in 2012 CrlJ 1519 wherein it was held “The Hon’ble Supreme Court observed as today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a s socialist, secular democratic republic. Ti cannot be disputed that where corruption beings, all rights and corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambles vision.”
Therefore, the duty of the court is that any anti corruption law has to interpreted and worked out in such a fashion as two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetual it.
20) In Mlukut Bihari & another Vs State of Rajasthan reported in Crl. Appeal No.870 of 2012 SC
It is not necessary that evidence of reliable witness is necessary to corroborate by another witness – Presumption u/s 20 of P.C. Act.
45
21) In M.S.Varaprasad Vs. Inspector of Police, Anti
Corruption Bureau, Hyderabad 2014(1) ALD (Crl) 429 AP wherein it was held “No spontaneous explanation given by accused
before trap party members to that effect –
Theory put forth by accused, an afterthought –
Defence plea rightly rejected by trail court
Conviction upheld – Criminal appeal dismissed.
22) In Billa Nagal Sharief Vs State of A.P. reported in 2011 (1) ALT Crl. 144 SC
Plea of thrusting the money is to appellants pocket not fit to be believed in the face of categorical and consistent evidence of prosecution witnesses. N merit in appeal –
Dismissed accordingly.
23) In Syed Abdul Moiz Vs State of A.P. reported in 2013 (1) ALD (Crl) 158 wherein it was held
P.C. Act, 1988 Sec 7 & 13 (2) r/w 3 (1) (d) –
Conviction – Rejection of defence theory and failure of accused to discharge his burden –
Appellant working as Asst. Environmental
Engineer issued show cause notice against the company stating that it was casing smell nuisance in the vicinity – Defence theory put forward by appellant rightly rejected by Trial
Court – Conviction.
46
24) In N.K. Seetharama Sarma Vs State reported in 2013 (1) ALD (Crl) 431 (AP) wherein it was held
In the post trap proceedings appellant merely stated that he did not demand any bribe from complainant and allegations against him are false – Defence theory that money was thrust into fold of his lungi by complainant rightly rejected by trial court as being highly unconvincing – Appeal dismissed.
25) In K. John Devasahayam Vs State of AP reported in 2014 (1) ALT (Crl) 280 wherein it was held
Case of the prosecution is that chemical test conducted on the fingers yielded positive results. Bribe amount was recovered. Numbers of the currency notes in the pre trap proceedings tallied with the notes recorded.
The very theory put-forth by the appellant that PW1 thrusted the amount into his pocket and ran away is quite unconvincing and unacceptable.
26) In State of Andhra Pradesh Vs. V.Vasudeva Rao reported in AIR 2004 (SC)-0-960, 2004-SCC-9-3-19 wherein it was held “ (i) Prevention of Corruption Act, 1947 –
Section 5 (2) r/w 5(1)(d) - Indian Penal Code, 1860 – Section 161 – Evidence Act, 1872 –
Section 4 – Accepting illegal gratification – No explanationofferedforpresenceof phenolphthalein powder – However, High Court 47 acquitted accused holding that prosecution has failed to prove demand and acceptance of money by the accused – Whether approach of the High Court is justified – (NO) – when receipt of money was admitted it was for accused to prove as to how the presumption u/s. 4 of the
Act is not available – Accused convicted of offence u/s. 161 IPC and Section 5(2) r/w (1)(d) of the Act of 1947.
27) P.Satyanarayana @ Satteiah Vs State
Appreciation of evidence – Eye witnesses supported prosecution case in chief examination – Case adjourned to subsequent date for cross examination as defence counsel not ready – Meanwhile manipulation made and witnesses turned hostile witnesses recorded in one sitting and consistent with medical evidence and othr evidence has to be accepted – Second version be rejected – Courts in such case shall take steps to initiate proceedings per perjury against the persons concerned as reported in 1994(2) ALT (Crl) 95 Division Bench.
28) In Shiv Nandan Dixit Vs. State of U.P. reported in 2003(8) SC 901 = 2004 CCR (1) 86 SC = 2004(1) Crimes 219
A.2 receiving money on behalf of AO1 –
Presumption can be raised
a) Sec.161 and 120-B – Explained.
b) Sec.5(1)(d) & 4 of P.C.Act 1947 words obtains for himself – cannote not only receiving bribe personally but receipt of any bribe either 48 directly or indirectly – though demand of bribe made by A1 and the same was not received by him but by A2 – Contention that presumption of guilt u/s was not available for offence u/s 5(1)
(d) liable to be rejected.
c) Order passed by ITO was an official order – any act to comply with the said order will also be an official act – When A1 was directed return said document, A1 was doing an official act – demand of bribe by A1 in that process is an offence u/s.161.
d) Involvement of A2 who was found receiving money alleged to have been demanded by A1 – demand made in the presence of A1 class 4 employee in the same office – document promise to be returned outside the office at 5:30 pm on the same day – A2 refusing to reduce the amount by saying that A1 would be suspicious on him – A2 was a party to the conspiracy – A2 obtained money on behalf of
A1 – Conviction upheld.
29) Abdul Kaffar Vs. State of Kerala reported in 2004 SCC (9) 333 – 2004 Crimes – SC 106.
When the stand taken by the accused during trials not taken during post trap proceedings, first available opportunity the defence was not genuine.
49
30) In The State Vs A. Parthiban reported in 2008 Crl. L. J.
4772 SC wherein it was held “7 & 13 (1) (d) – Difference between offences explained – Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Sec.7 – acceptance of illegal gratification in pursuance of demand by a public servant would fall under 13 (1) (d).”
31) In Shiv Raj Singh Vs. Delhi Administration reported in
AIR 1968 SC 1419 wherein it was held “No official favour or intention to do any official favour - Case made out under 7 & 13 (1)
(d) of P.C. Act. “
32) In Girija Prasad Appellant Vs. State of Madhya
Pradesh reported in 2007 SCC (Crl) (3) – 475 wherein it was held
A) P.C.Act, 1947 – S.4 and S.5(1)(d) r/w 5(2) presumption under section S.4 regarding acceptance of illegal gratification – Invocation of – Prerequisites for - Rebuttal of said presumption – Held, once it is proved that the amount has been received by the accused presumption under S.4 would get attracted – In such a case, it would be wholly immaterial whether the said acceptance of amount was for him or for someone else – It would also be immaterial whether the accused was or was not in a position to oblige the complainant –
However, the said presumption is not absolute 50 – Accused can rebut the said presumption by leading evidence – In the present case, there was evidence as to acceptance of amount by the accused. Hence, presumption under S.4 of the PC Act, 1947 got attached – accused failed to rebut the said presumption as he did not adduce any evidence whatsoever in that regard. Therefore, High Court as justified in reversing his acquittal and convicting him under the PC Act 1947 and S.161 IPC – Penal
Code 1860, S. 161 (since repealed) – prevention of Corruption Act, 1988 – S.20 and
S.13 (1)(d) r/w 13(2).
E) Criminal Trial – Witness – Police witness –
Recording of conviction solely on basis of testimony of police officials – Permissibility of held, can be recorded if on careful scrutiny of their evidence the same is found to be reliable and trustworthy – Not necessary to be corroborated by independent evidence –
Evidence Act 1872 S. 3 114 III (e) and 4.
33) B. Noha Vs State of Kerala and another reported in 2007 (1) SCC (Crl.) – 711 wherein it was held
a) There is no basis for PW1 to falsely implicate the accused – Evidence on record clearly show why the illegal gratification was demanded and accepted by the appellant – Evidence of PW1 does not suffer from any infirmity and evidence of PW2 is also clear credible and cogent.
b) When it is proved that there was voluntarily and conscious acceptance of money by the 51 accused there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
c) When the amount is found to have been passed to the Public Servant the burden is on the Public Servant to establish that it was not byway of illegal gratification – No case of accused that he was legally entitled to collect the amount from PW1–the burden held was not discharged by accused.
34) Sukhdev Yadav and others Vs. State of Bihar (2001) 8 supreme Court Cases 86.
“a)Criminal Trial – appreciation of evidenceContradictions/ inconsistencies/exaggerations/ embellishments – minor variations in prosecution evidence – Probative value of such evidence and acceptability thereof – Held, once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same – If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence – Despite minor discrepancies in prosecution evidence, conviction and sentence awarded to appellants under S.302 Appeal against conviction – conviction under Sec.302 upheld despite minor variations in prosecution evidence – Evidence Act, 1872, Ss.3 and 155 –
Criminal Procedure Code 1973., S.162.
52
b) Criminal Trial – Infirmities /Lapses /
Omissions – lapses – non- production of seizure list – Lapses, when do not affect the prosecution case – held, non-production of seizure list is undoubtedly, a lapse on the part of the prosecution – however, if there exists credible evidence on record, such a lapse would not affect the prosecution case – lapses, if do not have the effect of causing any prejudice to the accused, cannot be used to impeach the testimony of eyewitnesses –
Criminal Procedure Code, 1973, S.102(3) –
Non -production of seizure list, held, would not affect the prosecution case.
35) Between Chaturdas Bhagwandas Patel Vs. State of
Gujrat Supreme Court of India Chaturdas Bhagwandas Patel vs
The State Of Gujarat on 16 April, 1976 Equivalent citations: AIR 1976 SC 1497, 1976 CriLJ 1180, (1976) 0 GLR 804, (1976) 3 SCC 46, 1976 3 SCR 1052 wherein it was held “ Indeed, when a public servant, being a police officer, is charged under Section 161, Penal
Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material of that purpose. If he had used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not 53 the public servant was capable of doing or intended to do ay official act of favour or disfavour ( see Bhanuprasad Hariparasad Vs.
State of Gujarat and Shiv Raj Singh Vs. Delhi
Administration.).
In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under Section 4(1) of the Prevention of Corruption Act. It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged b y bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in section 161. The appellant had hopelessly failed to show such a balance of probability in his favour.
36. J.Raghavendra Chary Vs State of A.P., 2015 Cri. LJ (NOC) 25 (AP).
The Appellant, a sub-registrar, was convicted by the trail judge for demanding and accepting
Rs.1000/- from the complainant for returning original Mortgage Deed. The High Court found that the evidence of the complainant was trustworthy though the accused joined place a month early year, that not sending phenolphthalein solution to chemical analysis 54 for corroboration was not fatal, and that only the accused could have place bribe currency notes in Almarah in record room, since the complainant was a stranger and was not acquainted with the said place, and observing that the offence of demand and acceptance of illegal gratification was proved, up held the conviction.
37.Kalicheti Gopala Reddy Vs State, 2015 Cr.LJ (NOC) 26 (Hyd): 2016 (1) ALT (Crl) 217 (AP).
The Appellant was Convicted by the Trail Judge for demanding and accepting Rs. 1000/- from the complainant for issuing Pattadar Pass Book.
The High Court held that testimony of the complainant was corroborated by witnesses, and minor discrepancies were not fatal to the case of the complainant, that accused could not established inimical relations between him and the complainant and also accused took inconsistent please at different stages, which have been rightly rejected for being inconsistent, and confirmed conviction.
38.V.Vaman Rao Vs State of A.P. 2011 (3) ALT (Crl) 246 (AP).
The Appellant, a Mandal Revenue Officer, was convicted for demanding and accepting Rs.
300/- from complainant for issuing “Lavani
Patta” in favour of the son of complainant.
The High Court held that the trial court has rightly evaluated the evidence of the
Prosecution witnesses and other material on 55 record and found that there is no force in there evidence legal enough to prove the guilt of the appellant and for the offences as has been charged with and it was rightly convicted and sentenced the appellant therefore the same does not suffer from any error, irregularity or illegality warranting interference of this court.
Appeal dismissed.
39. Ashis Chowdhry Vs State of A.P., 2012 (I) ALD (Crl) 449 (AP).
The Appellant, a Railway Protection Force
Inspector was Convicted by Spl. Judge for accepting a bribe of Rs. 3000/- from complainant for not booking cases against him. It was argued in the appeal that there was no demand of the accused on the complainant on 07.01.2003 and infact he was not in post on that day at 10.40 AM to 6.40 PM as per the diary maintained in the outpost the
High Court found that the tainted amount was recovered from the house of accused, Sodium
Carbonate test proved positive before recovery of bribe money and acceptance of bribe from PW-1 in the presence of PW-2 was proved beyond doubt. The Court also held that contrary entries in station diary was of consequence, since entries in public record cannot be accepted as conclusive proof or as gospel truth ignoring other convincing evidence which may prove a different fact situation than that indicated by the said 56 entries and confirmed the conviction of the appellant.
40.Ch. Viswesham Vs State, 2012 (2) ALD (Crl) 921 (AP):
2013 (1) ALT (Crl) 139 (AP).
The Appellant, Excise Superintendent, was convicted by the Spl. Judge for Anti Corruption
Bureau Case for demanding and accepting Rs.
2000/- from the contractor for renewing wine shop license. On appeal, it was argued that
before the date of trap the License was
already renewed, the money of Rs. 2000/- taken from the complainant (PW-1) for arranging telephone connection to the mother in law of PW-2 and that the complainant bore a grudge as the appellant asked him to go out of office in front of several contractors. Tainted money was recovered from Kurtha pocket,
Phenolphthalein test was proved positive and that the appellant instructed PW-4 Jr. Asst., not to hand over license to PW-1 without his permission. Held that merely because there are minor omission in sec 164 Cr.P.C.
statement of PW-1, his evidence cannot be disbelieved on that score alone. When PW-1 and the appellant were not in good terms, it is not understandable as to why the appellant allowed him and PW-2 to his house, offered sweets, received an amount of Rs. 2000/- from
PW-1. It is true that the standard by which the appellant has to prove the defence is not that of the standard of the proof beyond 57 reasonable doubt, which rests on the prosecution and it is that of preponderance of probability. Here in this case, the defence plea taken by the appellant itself is quite unconvincing and unbelievable. Therefore, it cannot at all be said that appellant could be able to rebut the presumption against him under section 20 of the Act. The learned trail court rightly convicted the appellant and the order of conviction and sentence passed against the appellant does not required any interference in this appeal.
41. Dr. K.Satyanarayana Reddy Vs State of A.P. 2012 (2)
ALD (Crl) 692 (AP) : 2013 (1) ALT (Crl) 56 (AP).
The Appellant, a Civil Surgeon Govt. Hospital at Karimngar, was trapped when he demanded bribe of Rs.1000/- from complainant (PW-1) for conducting an operation on his son in law (PW-
2) and was also convicted by the Spl. Judge.
On appeal, it was argued that the appellant could not conduct operation as there was no blood of the group and also that shadow (PW-
8) was examined after section 313 Cr.P.C.
examination, which costs doubt about the identity of the right person. The High Court held that the appellant was not expected to receive money from the patient for any purpose including for procuring blood, the state proved its case and the appellant could not discharge the burden cast on him under 58 section 20 of P.C. Act and dismissed the appeal.
42. Nageswara Rao Vs State of A.P., 2012 (2) ALD (Crl) 139 (AP).
The Appellant working in Commercial Tax
Office was convicted by the Spl. Judge,
Vishakapatnam, for demanding and accepting
Rs. 1000/- as bribe for grant of Trade license to the complainant (PW-1). Amount was recovered from the possession of the appellant. The High on appeal held that demand and acceptance of illegal gratification was proved by the prosecution witnesses and the defence does the amount was received towards purchase of NSCs to be deposited as
Addl. Security cannot be accepted as officers were instructed to receive only NSCs but not cash and dismissed the appeal.
43.P.Satyanarayana Vs State, 2013 (1) ALD (Crl) 346 (AP).
The Appellant, a Sub-Divisional Engineer in
BSNL, was convicted for accepting bribe for restoring out going call facility to the
Telephone of the complainant (PW-1). Money was recovered from trouser back pocket and chemical test proved positive. It was the defence of accused that money was given by
PW-1 towards telephone charges. On appeal, the High Court held that there was no circumstance infer that he had any grouse or enemity against appellant. No telephone bill 59 was generated as on the date of trap and held that Conviction by the trial court was justified.
44. Dita Seetha Ramalingeswara Sarma Vs State A.P., 2013 Cr.LJ 4482: 2013 (1) ALD (Crl) 669 (AP): 2013 (2) ALT (Crl) 234 (AP).
The Appellant (A-1), a Prohibition Excise
Inspector and a Head Constable (A-2) were prosecuted by Anti Corruption Bureau for accepting bribe for releasing father and a relative who were arrested by A-1. The trail
Judge acquitted A-2 and Convicted A-1. It was
argued in appeal that PW-1 and PW-2 had not fully supported prosecution case. On appeal, the High Court held that both PW-1 and PW-2 did not totally depart from the basic version of prosecution. They, in fact, supported basic version of prosecution. Appellant failed to rebut the presumption and dismissed the appeal.
45. Syed Abdul Moiz Vs State of A.P. 2013 (1) ALD (Crl) 158 (AP): 2013 (1) ALT (Crl) 233 (AP).
The Appellant Assistant Environmental
Engineer in A.P. Pollution Control Board at
Nizamabad, was convicted for accepting Rs.
5,000/- as bribe from complainant (PW-2) for not taking action on the notice served on the company of PW-1. Money was recovered and chemical test was positive. On appeal, the
High Court found that the explanation of the 60 appellant that he entered into an agreement to sell him motor cycle to PW-2 and that he received Rs. 5,000/- from PW-2 as advance out of the sale price of 10,000/- rupees of his motor cycle could not accepted in view of the notice given to PW-2 by the appellant.
Conduct of the appellant shows that he threatened PW’s-1 and 2 to meet his demand.
Though they turned hostile, fact remains that
PW-2 lodged report to PW-6. Dismissed the
Appeal.
44.Accordingly, it is the contention of the prosecution the charge u/s. 7(A) r/w 13(1)(d) r/w 13(2) of P.C.Act established against accused officer. But I am not able to accept the contentions of the prosecution and the decisions relied on by the prosecution are not applicable to the present case on hand, for the reasons the documentary evidence produced and relied by the prosecution is also in dubious nature. For instance,
Ex.P2, the work order purportedly issued by accused officer in favour of the PW1 bears no date, Dispatch Number, signature etc. Except the signature of Executive Engineer i.e., accused officer. As per the work order, the job should be completed within 7 days of period only. The work done report may be handed over to the concerned Dy.Executive Engineer within 7 days. But in the absence of the date of work order, it is not possible to determine the date of commencement of work by
PW1 and date of conclusion of the contract work done by him.
61
There are as many as 10 copies of work orders, but in none of the work order the despatch number, work order number, date thereof is mentioned. Similarly, the purported bills for the sum of Rs.19,975/- marked as Ex.P3 seems to be a computer print- out and it bears signature of Executive Engineer on 2.1.2009 and the signature of Section Officer i.e., PW3. The date and bill number are not mentioned. All the bills are in similar nature and duly signed by Executive Engineer on 2.1.2009.
45.Moreover DW1-Sd.Mahmood, the then Superintendent has deposed in his evidence that as per Ex.D4 accused officer went on tour on his official vehicle on 26.12.2008 and also on 31.12.2008 to camp from 7.00 AM to 8.00 PM at Nawab Tank,
Armoor of Nandipet Mandal. Therefore, it is very clear that accused officer herein is not available in the office of Executive
Engineer either on 26.12.2008 or 31.12.2008 and as such the question of demand of the bribe amount of Rs.7,000/- by accused officer as stated by PW1 is not trustworthy. Hence, the testimony of PW1 is unreliable to fasten any criminal liability as against accused officer. Therefore, viewed from any angle, the prosecution could not succeed to bring home the guilt of the accused for the charge framed against the accused officer. Therefore, prosecution failed to establish the charge framed against accused officer for the alleged offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 62 beyond all reasonable doubt. Hence, the accused officer is entitled to be acquitted for the said charge.
46.In the result, accused is found not guilty for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and he is acquitted u/s. 248(1) Cr.P.C. The bail bonds of accused shall stand cancelled.
MO1 i.e., tainted amount of Rs.7,000/- is ordered to be returned to Complainant-PW1 if not reimbursed earlier by department and if returned, the same shall be remitted in the
Government Treasury and rest of the material objects Mos2 to 8 shall be destroyed, after appeal time is over.
Dictated to Stenographer Gr.I, transcribed by her,
corrected and pronounced by me in the Open Court on this the 24th day of September, 2019.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION:
63
PW1Payyavula Ramesh.
PW2 G.Prabhakar, Jr.Asst., O/o Asst.Commissioner, Proh. & Excise, Nizamabad.
PW3Are Bhoja Das, Asst.Engineer, Sub-Division No.4 (Gates) of Division No.2, Sriramsagar Project, Balkonda Mandal, Nizamabad Dist.
PW4 Ajit Kumar Chaturvedi, Dy.Executive Engineer, Sub- Division No.4 (Gates) of Division No.2, Sriramsagar Project, Balkonda Mandal, Nizamabad Dist.
PW5Valma Mohan Reddy, Head Draftsman, Division 2, Pochampad, Balkonda Mandal, Nizamabad Dist.
PW6Prabhakar Reddy, Superintendent Engineer, Godavari Valley Circle No.1, Sriramsagar Project, Balkonda Mandal, Nizamabad Dist.
PW7Y. Vijaya Kumar, Section Officer, Irrigation Department, TS, Hyderabad.
PW8 A.Laxminarayana, Inspector, ACB, Medak District.
PW9K.Saidulu, Inspector of Police, ACB, Nizamabad Range.
FOR THE DEFENCE
DW1Sd.Mahmood, Superintendent, Irrigation Department, Sriramsagar Project, Pochampad.
DOCUMENTS EXHIBITED
FOR THE PROSECUTION
64
Ex.P131-12-2008 Complaint given by PW1
Ex.P2----Work Order No. DIV-2/DB/D3 (15 sheets)
Ex.P3 02-01-2009Pertains to original bill (5 sheets)
Ex.P4 ---File pertaining to comparative statement and statement file
Ex.P531-12-2008Photostat copy of complaint
Ex.P602-01-2009 Mediator Report-I
Ex.P7---Attendance Register
Ex.P802-01-2009 Rough sketch of scene
Ex.P902-01-2009 Mediator Report II
Ex.P1010-11-2009Sanction order vide G.O.Ms.No.294
Ex.P112-1-2009 First Information Report
Ex.P1223-5-2007Incharge proceedings of accused officer as Executive Engineer Division-II, Jagtial G.O.Ms.No. 537
Ex.P1320-04-1999Memo
Ex.P14–-- Job chart of accused officer
FOR THE DEFENCE
Ex.D1---Attested copy of Measurement Book
Ex.D2---Attested copy of cheque issue Register 65
Ex.D316-01-2009Portion of 161 Cr.P.C. statement of PW3
Ex.D4---Attested copy of log book for the month of December, 2008 pertaining to official vehicle of accused officer bearing No. AP-01-TV-0089.
Ex.X16-12-2018 Summons to witness for submission of Log Book.
MATERIAL OBJECTS MARKED
MO1Tainted amount of Rs.7,000/-
MO2Sealed cover containing the sample phenolphthalein powder used for the demonstration purpose during pre trap proceedings.
MO3Sealed cover containing the sample powder of sodium carbonate used for the demonstration purpose during pre trap proceedings.
MO4Sealed cover containing the sample powder of sodium carbonate used during post trap proceedings.
MO5Sealed bottle containing right hand wash of accused
MO6 Sealed bottle containing left hand wash of accused
MO7 Sealed bottle containing resultant solution of contacted portion of left side shirt pocket
MO8 Full shirt in white colour with black stripes
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
1
IN THE COURT OF THE SPL. JUDGE FOR TRIAL OF SPE & A.C.B
CASES : AT KARIMNAGAR.
PRESENT : SRI M.JOHNSON, Spl.Judge for trial of SPE & A.C.B Cases,
K A R I M N A G A R.
Dated this the 31 st day of August, 2019.
CALENDAR CASE No. 109 of 2015
Between:
The State through Anti-Corruption Bureau, through the Inspector of Police, Anti Corruption Bureau, Nizamabad Range, Nizamabad. … Complainant
AND
Allenki Venkatesham, Divisional Engineer Electrical (Op), APNPDCL, Nizamabad Division, Nizamabad N/o H.No. 1-2- 15, Near Head Post Office, Bhabi Basthi, Sircilla Town & Mandal, Karimnagar District settled at Nizamabad.
...Accused Officer
This case is coming for final hearing on 27-8-2019 in the presence of Special Public Prosecutor for the state and of Sri M.S.Prasad, Advocate for the Accused, 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.The State represented by Anti-Corruption Bureau,
Nizamabad Range, Nizamabad filed charge sheet against the accused Officer to prosecute him for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 2
2.According to the charge sheet, case of the prosecution is as here under:
Case of the prosecution in brief is that, at the time of alleged occurrence, the accused Officer was working as
Divisional Engineer Electrical (Operation), APNPDCL, Nizamabad
Division, Nizamabad from 14-12-1988 to 29-08-2009 and by virtue of post held by him, he comes under the category of public servant within the meaning of Sec.2(c) of Prevention of
Corruption Act, 1988.
3.It is the case of the prosecution that on 27-8-2009 at 8.00
AM the defacto-complainan-PW1-Sri Bhukya Laxman Naik came to the Office of the Dy.Superintendent of Police and lodged a report under Ex.P1 stating that he worked as
Addl.Asst.Engineer, OP-D1 Section at Nizamabad. On 15.6.2009 he was transferred as AAE/SPM kamareddy from Nizamabad, as per the orders of Superintending Engineer (Operations)
Nizamabad. On 17.6.2009 he was relieved by ADE/OP/T
Nizamabad, on the same day he went to Kamareddy and gave his joining report as ADE/SPM/Kamareddy. The defacto- complainan-PW1-Bhukya Laxman Naik received memo from his superior officer with direction to go to Nizamabad to complete the pending work, in order to obtain Last Pay Certificate ,
Service Register and Clearance Certificate. As such he went to
Division Office on 21.7.2009 and attended pending work. He 3 received his salary up to 17.6.2009 only. In order to get his Last
Pay Certificate and Service Register, he met the Divisional
Engineer Sri Venkatesham, A.O., but he instructed him to complete the pending work, otherwise he won’t send the Last
Pay Certificate etc. PW1 was also not paid salary for the month of July, 2009. He came to know that other officials who got transferred along with him obtained their LPCs. On 13.8.2009 he approached Venkatesham, D.E.(Accused Officer) and asked for his Last Pay Certificate by giving assurance letter of completing the pending work within 10 days. But accused refused and demanded Rs.10,000/- as bribe and then only he would consider his request. On 21.8.2009 PW1 has obtained no due certificate from concerned sections, appended the same to his application and gave them to accused and requested for his Last Pay Certificate and service Register for which accused again demanded Rs.10,000/- as bribe. Finally, on 26.8.2009 he approached accused officer and informed that he did not receive 2 ½ months salary and also expressed his inability to pay
Rs.10,000/- as bribe. On that accused reduced his demand bribe amount to Rs.5,000/- and asked him to pay the bribe amount at this residence or at his office within 2 or 3 days and to receive his Last Pay Certificate and Service Book. PW1 was unwilling to pay the said amount and approached the ACB officials and lodged a report under Ex.P1 to take necessary action.
4
4.On receipt of Ex.P1 report and after due verification, the
LW16 N.S.Karunanidhi, Dy.Superintendent of Police, ACB,
Nizamabad registered the complaint against accused in Cr.No.
22/ACB-NZB/2009 u/s. 7 of Prevention of Corruption Act, 1988, and issued FIR as per Ex.P14 and taken up investigation.
5.During the course of investigation, LW16-N.S.Karunanidhi,
Dy.Superintendent of Police, Anti Corruption Bureau, Nizamabad
Range secured two independent mediators PW2-Vulvaji
Prabhakar and PW13-Chokkam Devidas to his office at
Nizamabad and also secured the presence of PW1 and decided trap against accused and after ascertaining the correctness of the contents of the complaint under Ex.P1, LW16-the
Dy.Superintendent of Police, asked PW1 to bring proposed bribe amount and accordingly PW1 visited the Office of the
Dy.Superintendent of Police, Anti Corruption Bureau, Nizamabad, and after necessary formalities such as introduction of PW1 to the mediators and vice-versa and stated about the proposed trap against accused and demonstrated phenolphthalein test and explained significance of the test. It is also the case of the prosecution that on the date of trap accused was trapped at his house situated at H.No. 11-1-1301, Panchayath Raj Colony,
Nizamabad when he demanded and accepted tainted currency of Rs.5,000/- from B.Laxman Naik. The phenolphthalein test 5 conducted over the right hand fingers of accused yielded positive result and tainted currency of Rs.5,000/- was recovered and seized from the top of the spiral note book which is placed on the sofa of accused at his instance. The contacted portion of the tainted currency with the note book from where the tainted currency was recovered, was subjected to sodium carbonate solution test yielded positive result. The Made Up file containing
Lr.No. AAE/SPM/KMR/D.No.Camp NZB/09, dt. 17.8.2009 containing 12 sheets, Made up file containing Lr.No. Nil, dt.
21.8.2009 containing 18 sheets, Made up file dt. 25.8.2009 1 sheet, Made up file regarding Inward Register, Office of the
Division Office from 1.4.2009 and Made up file containing
Photostat copy of Service Book of Sri B.Laxman Naik, AAE/ONC,
Kamareddy containing 4 sheets from the office of accused seized by the Dy.Superintendent of Police from the Office of the accused and examined PW1 and then arrested the accused on 29-8-2009 and he was produced before the Court of
Prl.Spl.Judge for trial of SPE & ACB Cases, Hyderabad for Judicial remand and subsequently he was enlarged on bail.
6.It is the case of the prosecution that the Inspector of
Police-LW18 took up further investigation and he has examined and recorded the statements of Y.Prakash-LW4, Thota Raja
Shekar-LW5, M.Srihari-LW6, Mohd.Abdul-LW7, N.Shiva Vara
Prasad-LW8,Ch.Harichand-LW9,S.RamaKrishna-LW10, 6
G.Sanjeev Reddy-LW11, Gugloth Gangaram-LW12 and
A.Odenna-LW13, and got recorded the statement of PW1 u/s.
164 Cr.P.C through Judicial Magistrate of First Class, Armoor and subsequently the material placed before the CMD, APNPDCL,
Warangal, the competent Authority to remove the accused from
Service accorded sanction vide Proceedings No. CGM (HRD&TRG/DE/DC-11/98-R/2012-1a dt. 21.9.2012 to prosecute accused in the Court of law. The Investigation Officer PW12-
Sri K.Saidulu, Inspector of Police, Anti Corruption Bureau,
Nizamabad Range has filed charge sheet against the accused for the offences u/s.7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 by depositing the case property vide
CPR No. 18/2012 (on the file of II Addl.Spl.Judge for trial of SPE &
ACB Cases, Hyderabad).
7.This case was taken cognizance for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the accused.
8.On appearance of the accused, copies of documents were furnished to him as required u/s. 207 Cr.P.C.
9.On 28.2.2014 Learned Predecessor of this Court examined the accused u/s. 239 Cr.P.C., the accused denied the offences, hence, charges u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of 7
Corruption Act, 1988 framed against the accused, read over and explained to him in Telugu, but the accused pleaded not guilty and claimed to be tried.
10.During the course of trial, on behalf of the prosecution,
Pws 1 to 13 were examined and Ex.P1 to P19 were marked and at the same time on behalf of the accused D1 to D3 were marked through PW1 and prosecution also got marked
Mos1 to 8.
11.After completion of prosecution evidence, accused examined u/s. 313 Cr.P.C., by explaining the incriminating evidence on record to the accused in vernacular language for which the accused has denied the prosecution evidence and reported no defence evidence on his behalf.
12. I have heard arguments of Learned Spl.Public Prosecutor on behalf of the State and also contentions of Learned defence counsel and both of them filed their written arguments. Apart from written arguments, the accused herein also filed written statement of defence. Further both Learned Spl.Public
Prosecutor and counsel for the accused filed case law relied on by them.
8
13.Now, the points for determination is whether the prosecution is able to prove the charge u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the accused beyond reasonable doubt?
14. In order to prove the charge against AO1 herein, the prosecution must prove the essential ingredients of offence u/s.
7 r/w 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 the following factors must be proved.
i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
Iii) for himself or for any other person.
iv) Such gratification was not a remuneration to which the accused was legally entitled.
v) The accused accepted such gratification as a motive or reward for:-
a) doing or forbearing to do an official act: or
b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions: or
c) rendering or attempting to render any service or disservice to some one with the
Central or any state Government or
Parliament or the Legislature of any State of with any local authority, Corporation or
Government company referred to in Sec. 2
Clause (c) or with any public servant whether named or otherwise.
9
For the offence u/s. 13(1)(d) the ingredients of this clause are
1) He should hold office as Public Servant.
2) He should obtain any valuable thing or pecuniary advantage for any person
3) Such obtaining of valuable thing or pecuniary advantage is without any public interest.
A reading of this provision would make it amply clear that all the three wings of clause
(d) of Sec.13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of word or (at the end of each sub clause). Thus under sec. 13(1)
(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under sec. 13(1)(d) of the
Prevention of Corruption Act, 1988. on the same reasoning “obtaining a valuable thing or pecuniary advantage merely by abusing official position “ as contemplated u/s.13(1)
(d)(ii) in itself would satisfy the ingredients of
Criminal misconduct under Sec. 13(1)(d)(i) of the Act, 1988.
15.Keeping in view, the above essential ingredients of the offence, I have gone through the evidence adduced by the prosecution. In all prosecution has examined Pws 1 to 13 and 10
Ex.P1 to P19 were marked and Mos 1 to 8 are marked.
Whereas in support of the defence of the accused officer by way of cross-examination of PW1 and PW7, Ex.D1 to D7 were marked.
16.Now coming to the evidence on record. PW1-Bhukya
Laxman Nayak, the defacto-complainant who lodged report under Ex.P1 with the ACB officials, has deposed in his evidence that he was working as Asst.Divisional Engineer (Operation),
Armoor and earlier he worked in the same capacity at
Kamareddy during 17.6.2009 to 31.6.2012. On 15-6-2009 he received transfer orders from Nizamabad D-1 Section, to the post of Asst. Engineer, SPM, Kamareddy, Nizamabad District and as such he was relieved from the post of ADE Operations,
Nizamabad on 17.6.2009 and reported as ADE, SPM, Nizamabad on 21-7-2009 and in the meanwhile he received orders from
Superintending Engineer for completion of work orders and shall obtain clearance certificate by 30-9-2009 and then only the Last Pay Certificate and the Service Register of the incumbent shall be forwarded to the new station. As such on 21.8.2009 PW1 has approached accused and submitted an application requesting to give pending clearance certificate and requested to issue Last Pay Certificate, but on the same day accused demanded Rs.10,000/- for issuance of Last Pay
Certificate . So that again on 26-8-2009 he approached the 11 accused and again requested him to issue Last Pay Certificate, but again accused has demanded the bribe amount reducing from Rs.10,000/- to Rs.5,000/-. As such, because of PW1 is unwilling to give bribe to accused, he approached ACB officials on 27-8-2009 at 8.00 AM and gave report under Ex.P1 against accused to take action but Dy.Superintendent of Police directed him to attend the Office of ACB on 29-8-2009 along with the proposed bribe amount and as such on 29.8.2009 PW1 went to the Office of the Dy.Superintendent of Police, ACB at 6.00 AM and met Dy.Superintendent of Police and informed him that he was ready with the proposed bribe amount of Rs.5,000/- and then Dy.Superintendent of Police has introduced two persons to him as mediators to proceed with further action. PW1 also deposed that he handed over the cash of Rs.5,000/- (500 x 10 = 5,000) to the Dy.Superintendent of Police and inturn
Dy.Superintendent of Police handed over the said amount to the mediators for the purpose of counting. He also deposed that
Dy.Superintendent of Police called upon one constable and asked him to apply phenolphthalein powder to the said currency notes and they kept the same in the left side shirt pocket of PW1. Then, Dy.Superintendent of Police has issued instructions to the mediators present there to dip our fingers in a solution prepared by him in separate glass tumblers, when they did so, the solution did not change its colour, but the constable who applied chemical powder to currency notes when 12 asked to dip his fingers in the solution, prepared by
Dy.Superintendent of Police in a separate glass tumbler, the solution turned to pink colour. Then significance of chemical test conducted by Dy.Superintendent of Police was explained to the PW1 as well as mediators thereby Dy.Superintendent of
Police has issued instructions to the PW1 directing him to proceed to the accused and if he demands bribe amount, give that tainted amount and if he receives, and further directed to issue signal by wiping his face with kerchief. Accordingly, after recording the entire proceedings by way of mediators report, the
Dy.Superintendent of Police, other ACB officials, mediators as well as PW1 started at 8.15 AM from ACB Office and proceeded to the house of accused situated at
Chandrashekarnagar colony, Water tank, Nizamabad and reached near the house of accused and stopped their vehicle i.e., TATA Sumo at a distance of 200 metres from the house of accused. Then Dy.Superintendent of Police asked PW1 to proceed to the house of the accused and give the bribe amount if he demanded but not otherwise. PW1 has further deposed that after giving instructions by Dy.Superintendent of Police, the trap party has taken vantage positions at the spot. Then he proceeded to the house of accused and when he entered into the house of accused, he found that accused was sitting in the Sofa and he wished him and also asked about the demanded bribe amount and then PW1 gave reply to him that 13 he brought the amount and then accused asked to give it thereby while he was giving the amount by taking from the left side pocket, accused has received it with his right hand and kept the same in a spiral binding book which was on his right side of Sofa. Later he asked PW1 to come to the office on the next day and collect the Last Pay Certificate and Service
Register, otherwise he will send it to the office of PW1. PW1 also deposed that he came out from the house of accused and immediately gave signal by wiping his face with kerchief and on observing the same, the trap party rushed to the house of accused and at that time Dy.Superintendent of Police asked him to wait outside the house of accused for about 15 minutes.
Subsequently, PW1 was called by Dy.Superintendent of Police inside to the house of accused and then asked him what happened and he narrated the entire episode from starting to end as stated in his evidence. Then Dy.Superintendent of
Police recorded his statement on the same day evening. PW1 also deposed that subsequently, his statement was got recorded before the Court of Magistrate, at Armoor u/s. 164
Cr.P.C., and witness PW1 also identified his signature on 164
Cr.P.C statement given to the Magistrate.
17.According to the evidence of PW1, the accused has demanded the bribe amount of Rs.5,000/- in order to issue his
Last Pay Certificate and sending Service Register to the new 14 station where PW1 joined on transfer. According to him alleged demand originally made on 21.8.2009 to give Rs.10,000/-, but the same was reduced to Rs.5,000/- on 26.8.2009. Since accused demanded the amount of Rs.5,000/-, as he was reluctant, he gave report to the ACB officials on 27.8.2009 and then pre trap proceedings were conducted in the office of
Dy.Superintendent of Police on 29.8.2009 at 6.00 AM in the presence of two mediators i.e., PW2 V.Prabhakar and LW3-
Ch.Devidas. Therefore, it is also necessary to go through the evidence of PW2 V.Prabhakar as another mediator LW3-
Ch.Devidas has not been examined by prosecution.
18.PW2-V.Prabhakar, mediator has deposed in his evidence that he is working as Hostel Welfare officer of Govt. B.C. Boys hostel, of Social Welfare Department at Nizamabad and as per the directions of his superior Officer, he visited the office of
ACB, Nizamabad on 29.8.2009 at 7.00 am along with LW3-
Devidas. Then after arrival of PW1, Dy.Superintendent of Police has given an attested copy of the complaint of PW1 which is marked as Ex.P2 and he along with another mediator has gone through the contents thereof and affirmed the facts and allegations made in the complaint with PW1 and then the
Dy.Superintendent of Police explained the trap laying plan and asked PW1 to give the amount of Rs.5,000/- which was carried by him and then called upon a constable and asked constable to 15 apply phenolphthalein powder to currency notes. The rest of the facts also deposed by PW2 similar to PW1 with regard to the instructions of the Dy.Superintendent of Police, and sample phenolphthalein test conducted on the day and the entire proceedings reduced into writing by way of mediators report-I by PW2 which is marked as Ex.P3. Furthermore, PW2 deposed in his evidence that after completion of the Mediator Report I, they all started at about 8.20 am and proceeded to the house of accused situated at Panchayat Raj colony, Nizamabad town, in a Government vehicle along with Pw1 and after reaching there, the vehicle was stopped at a distance of 100 meters and then Dy.Superintendent of Police instructed PW1 to proceed to the house of accused as directed earlier and to give signal if the bribe amount was demanded and received by the accused.
Accordingly PW1 went to the house of accused and within 5 or 10 minutes PW1 came out and gave pre arranged signal and then trap party members rushed to the spot and found that the accused sitting on the sofa in the front room of the house.
Then, Dy.Superintendent of Police, ACB has introduced himself to the accused and informed him the purpose of their visit as to demand of bribe amount from PW1. He also deposed that
before entering into the house of accused Dy.Superintendent
of Police has instructed PW1 to wait outside the house. Then
Dy.Superintendent of Police has prepared sodium carbonate solution in 2 separate glass tumblers and asked accused to dip 16 his left and right hand fingers in the said 2 solutions separately, on doing so right hand fingers wash turned into pink colour, but left hand wash did not change any colour. Then,
Dy.Superintendent of Police questioned accused whether he demanded or accepted bribe from Pw1, and accused has shown the tainted amount which was kept in a spiral binding note book to Dy.Superintendent of Police. Dy.Superintendent of Police directed the mediators to pickup the amount and verify the currency note numbers with the numbers mentioned in ExP3.
On doing so, both the numbers were tallied. Then,
Dy.Superintendent of Police seized the tainted amount and collected contracted portion of tainted amount to the note book with a cotton swab and subjected the same to chemical test.
On doing so, the same was also yielded positive result. Hence,
Dy.Superintendent of Police has seized the resultant solutions in separate glass bottles duly attested by the mediators. He also further deposed that the Dy.Superintendent of Police has seized the tainted amount of Rs.5,000/- on the spot and then
Dy.Superintendent of Police called upon Pw1 and questioned him what happened after leaving the trap party till he gave signal. Accordingly, PW2 supported the version of prosecution and the evidence of PW1. Furthermore, prosecution got marked
Ex.P4 mediators report II drafted by PW2 after post trap proceedings.
17
19.Furthermore, prosecution got marked the seized material objects, M.O1 is the tainted amount of Rs.5,000/-, MO2 is the sealed cover containing sample phenolphthalein powder used in the pre trap proceedings, MO3 is one sealed cover containing sodium carbonate powder used in the pre trap proceedings,
MO4 is one sealed cover containing sodium carbonate powder used during post trap proceedings, MO5 is one sealed bottle containing right hand wash of accused, MO6 is one sealed bottle containing left hand wash of accused, MO7 is one sealed bottle containing resultant solution for the contacted portion of tainted amount in the note book lifted with cotton swab, MO8 is one spiral note book.
20.Thereafter, according to the evidence of PW2
Dy.Superintendent of Police arrested accused and also prepared rough sketch of the scene of occurrence. Ex.P5 is the rough sketch, ExP6 is the certificate issued by D.E.Electrical,
Nizamabad, dt. 25.8.2009, ExP7 is the attested photostat copy of Service Register of PW1, Ex.P8 is the file containing application submitted by PW1 along with bunch of documents (23 sheets). ExP9 is the attested photostat copy of Letter, dt.17.8.2007(12 sheets). ExP10 is the inward Register, seized by Dy.Superintendent of Police.
18
21.The evidence of Pws 1 & 2 is in corroboration with each other so far as the pre trap proceedings under Ex.P3 and also reliable for the proceedings Ex.P4 Post Trap proceedings. It is clear from the evidence of Pws 1 & 2 that the tainted amount was kept on a note book kept on the sofa in the house of the accused where he sat. So far as the chemical test in respect of right hand fingers of accused is concerned, it is also clear that the left hand fingers not yielded any positive result. The question involved is whether the accused has received the bribe amount/tainted amount with his right hand and accepted the same knowing it to be bribe is to be scrutinized with reference to the cross-examination of PW1 & 2 and other evidence available on record.
22.In this case prosecution has examined another mediator
PW13-Devidas, after examination of Pws 3 to 12 and he supported the version of prosecution similar to PW2. PW13 has deposed in his evidence with regard to the pre trap proceedings conducted at the office of the Dy.Superintendent of Police, ACB and presence of Pws 1 & 2 on that day and he also signed in the proceedings of Mediator Report-I as well as Mediator Report-
II. This witness specifically deposed in his evidence, the
Dy.Superintendent of Police, ACB has seized Mos 1 to 8 during the trap proceedings and also recorded the version of PW1 and further stated the search proceedings were conducted in the 19 house of the accused on that day and the house consisting of ground floor, first floor and all the articles are noted down with regard to the articles found in the ground floor and prepared an inventory proceedings under Ex.P15.
23.It is further stated by PW13 that Dy.Superintendent of
Police has seized as many as 11 documents under Ex.P19 by preparing search list and further stated that after search proceedings at the house of the accused, they also proceeded to the office of the accused and seized connected files under
Ex.P6 to P10 under Ex.P16, but these facts are not at all deposed by PW2 in his evidence. It is the contention of the
Learned defence counsel that since PW2 has nothing stated about the search list and seizure of the connected files under
Ex.P6 to P10 and for that reason prosecution has examined
PW13 after completion of the evidence of Investigation Officer, only to fill up the lacunae in the prosecution case. It is further submitted by Learned counsel for the accused that besides the present case in CC.No. 109 of 2015, the Dy.Superintendent of
Police also registered another case in CC.No. 120/2015 vide
Cr.No. 26/2009, but in the charge sheet nothing mentioned about the case in CC.No. 120 of 2015 that was registered on the allegation of disproportionate assets of the accused. However, since PW2 has nothing deposed about the seizure of the material objects and the documents, the evidence of PW13 has 20 to be scrutinized carefully as prosecution could not establish the seizure of the documents under Ex.P16 through PW2. Whereas the Learned Spl.Public Prosecutor submitted his arguments contending that the present case is against the accused for the offence u/s. 7,13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 but whereas another case registered subsequently is u/s.13(1)(e) r/w 13(2) of Prevention of Corruption Act, 1988.
PW13 examined for the purpose of the seizure of the documents on the date of trap itself and it can not be held that it is a lacunae on the part of the prosecution and a mistake or an error in management of the prosecution case is no ground to reject the evidence of PW2 and PW13. However, the evidence of
PW13 is in support of the prosecution version read with the evidence of PW2. However, there are some discrepancies and minor contradictions in the evidence of both PW2 and 13.
24.The other witnesses examined on behalf of the prosecution is official witnesses of APNPDCL and they are all circumstantial witnesses. PW13-Thota Rajashekar, the Addl.Asst.Engineer in
APNPDCL examined by prosecution to show the pendency of the work orders with PW1. PW4-M.Srihari, Addl.Asst.Engineer in
APNPDCL examined on behalf of the prosecution to speak about the issuance of no due certificate to the Laxman Naik/PW1. So also PW5-Y.Prakash, Asst.Divisional Engineer, examined to speak about the transfer of PW1 and his relieving from the post.
21
Another witness PW6-Ch.Harichand, Addl.Divisional Engineer,
SPM examined on behalf of prosecution to show that PW1 gave joining report to the transfer post i.e., AE, SPM at Kamareddy.
Whereas PW7-S.Ramakrishna deposed with regard to the Last
Pay Certificate issued in favour of PW1. PW8-G.Sanjeeva
Reddy, Addl.Asst.Engineer, LT Metres, Nizamabad, has deposed about the issuance of no due certificate to Laxman Nayak/PW1.
Similarly PW9-G.Gangaram deposed about the issuance of no due certificate to B.Laxman Nayak/PW1. Whereas PW10-
A.Odenna, deposed with regard to the no due certificate issued in favour of PW1.
25. LW15-Sri Hiralal Samariya, Chairman-cum-Managing
Director, Transmission Corporation of AP Limited, Vidyut Soudha cited to show about the sanction proceedings issued against accused under Sec.19 of Prevention of Corruption Act, 1988. But in the place of LW15, PW11-G.Ramana Kiran, Divisional
Engineer, Disciplinary Cases, TS Transco examined by the prosecution and got marked Ex.P12. Nodoubt Pws 3 to 10, the official witnesses of APNPDCL gave evidence as circumstantial witnesses to speak about the work pending with the PW1 at his previous station and it is clear from their evidence that after his transfer from the post of AAE, Operations from Nizamabad and posted as AAE, SPM at Kamareddy, due to his pendency of his 22 work at his previous stations, the superior officer has issued
Ex.D5 dt. 12.10.2009.
26.It is further submitted that prior to it, as admitted by PW1 in his cross-examination, the then Superintending Engineer,
Operations, Nizamabad also issued proceedings under Ex.D1 dt.
14.7.2009 with specific directions that all the Divisional
Engineers are requested to obtain clearance certificates regarding closing of work orders pertaining to their old stations by the concerned Officers on or before 10.9.2009 without fail with reference to the transfer proceedings dt.24.6.2009.
Furthermore, specific direction is also given under Ex.D1 through Divisional Engineers that they are requested to submit the action taken report in the matter against ADE, AE, AAEs without fail. Therefore, it is the contention of Learned counsel
for the accused herein that as per Ex.D1 and D5 proceedings
issued by SE, the Last Pay Certificate and Service Register of the PW1 were withheld by the accused for the reason of incompletion of the pending work, and as such absolutely there is no any demand of bribe on the part of accused and PW1 has lodged a false report with the ACB officials that the accused initially demanded Rs.10,000/- as bribe for issuance of Last Pay
Certificate and Service Register. Learned Counsel has invited the attention of the Court to the evidence in cross-examination of PW1 to that effect.
23
27.In cross-examination of PW1, he has admitted the proceedings issued by the SE under Ex.D1 and under Ex.D5. He also admitted that he was relieved from the post of AAE by PW6 as per the proceedings issued by the Superintending Engineer
dt. 14.7.2009 to the effect that all the AAEs have to complete
their pending work orders in their previous stations and obtain clearance certificate from the concerned. Therefore, it is very clear from the cross-examination of PW1 that he attended the pending work and completed most of the work orders, except the work order No.10009/2005-06 and it is clear that one of the work orders is still pending as on the date of his request to issue
Last Pay Certificate and Service Register and however the accused has issued the clearance certificate to the completed work except for the work order No. 10-10009/2005-06.
Moreover, basing on that provisional clearance certificate, PW1 has joined in his new station on 26.8.2009 itself and PW6 also admitted the same. PW1 also subjected to cross-examination with regard to Ex.D2 an attested copy of the letter dt. 21.8.2009 which shows that the joining report of PW1 also discloses the work order no. 10-10009/2005-06 is incomplete and pending.
Ex.D3 is said Certificate issued by the accused with regard to the incomplete work for replacement of high accuracy meters in
DI Section, Nizamabad pertaining to the above said work order.
Ex.D4 is the joining report of PW1 dt. 26.8.2009. In further cross 24 examination of PW1 he also admitted the fact that earlier he was awarded with punishment of censure by the Department vide Proc.dt. CGM dt. 25-2-2003 and also further admitted that the punishment for stoppage of Annual Grade Increment without cumulative effect for misuse of material. Furthermore, PW1 also admitted in his cross-examination that “*…...it is true CMD gave a memo dt.
22.1.2008 vide punishment of stoppage of two annual grade increments without cumulative effect and also for recovery of
Rs.2,30,000/-.
The Learned counsel also pointed out the Service Register of
PW1 wherein the entries of the punishments imposed on PW1 are also found in the Service Register of PW1. Pointing out the said facts and admitted facts by the PW1, it is the specific contention that the PW1 is having committed misconduct in discharge of his duties and moreover without there being any prima facie misconduct on the part of the accused he made false allegations and implicated the accused in this case.
However, it is also an admitted fact by PW1 that the accused has given a Clearance Certificate on 25.8.2009 in his favour and the same is marked as Ex.D3 and his joining report dt.
26.8.2009 is marked as Ex.D4. It is further stated and pointed out in the cross-examination of PW1 that 25 “*….it is true I stated before the Magistrate that accused kept the tainted amount in the spiral bound note book.
*….It is true I have not stated before the
magistrate that accused took the amount from
me with his right hand.
*….It is true ACB officials seized tainted amount not in the spiral bound book and seized the same placed on the spiral note book.”
This statement of PW1 clearly indicates that the amount of
Rs.5,000/- was found on spiral note book but not inside the spiral note book. Whereas in the cross-examination of PW2 and PW13 they also stated that Dy.Superintendent of Police,
ACB has seized the tainted amount in the house of the accused from the Sofa on which there was a spiral bound book and on the book the amount was found. Pointing out all these facts came on record, it is the contention of the Learned counsel for the accused that it is the defence of the accused that when PW1 entered into the house of accused, he tried to give the amount of Rs.5,000/- thrusted into the hands of accused, he refused the same with his right hand and then PW1 kept that amount on the spiral note book and went away hurriedly and then gave the alleged pre arranged signal to the ACB officials. Hence, there is 26 no demand and acceptance of the bribe amount as alleged by the prosecution.
28.Keeping in view, the above arguments of Learned counsel
for the accused, taking into consideration the reply arguments
of Ld.Spl.Public Prosecutor and also the case law relied on by the prosecution, I have also carefully scrutinized evidence of
Investigation Officer. Before going to appreciate the evidence of Investigation Officer it is to be noted that the Pws 3 to 10 are the circumstantial witnesses and they are not direct witnesses to any demand or acceptance of bribe by the accused. The crucial evidence is of PW1, PW2, PW12 and PW13. Out of which
PW1 is the only witness to speak about the demand and acceptance of the bribe by the accused. Nodoubt PW12 deposed about the action taken by the Dy.Superintendent of
Police and the trap proceedings conducted by the
Dy.Superintendent of Police and he assisted the
Dy.Superintendent of Police and another Inspector in the conduct of trap proceedings under Mediator Report-I under
Ex.P3 and Mediator Report II under Ex.P4. Therefore, in the evidence of cross-examination of PW12 he categorically stated that “*….it is true there is no mention in Ex.P1 that I conducted discrete enquiries against accused and genuineness of contents of the complaint and that 27
I informed the same to Dy.Superintendent of
Police, ACB, Karunanidhi on 29.8.2009 as stated by him in chief examination. There is no other record to show that I conducted discrete enquiry except my endorsement on Ex.P1.
*….It is true I have not collected any single memo that was issued against accused during the entire service. I do not know that the recognition of meritorious services and outstanding performance of accused in the department that he was given appreciation and commendation certificates dt.
3.3.2001, 30.4.2001, 26.1.2002, 15.8.2002, 6.5.2003, 10.10.2003, and 7.4.2007 as in Ex.D6.
*….It is true as pointed out by Learned defence counsel as per documents marked as Ex.D6 consisting of 7 certificates by way of letter of appreciation and commendation letters, joint
Managing Director, Vigilance and security and
District Collector,, Adilabad, SE, Circle Operation
Circle Chairman-Managing Director, APNPDCL,
Warangal issued letters of appreciation for the services rendered by the accused.
Accordingly, it is the contention of the counsel for the accused that without there being any discrete enquiry about the conduct of the accused and without any prima facie material of bad 28 reputation, basing on the bald allegations of PW1, case was registered and accused is implicated in this case. He relied on various decisions to substantiate his contention that the prosecution miserably failed to prove the case of prosecution as hereunder.
1) P.Chandra Sekharam Vs. State (2012(2) ALD (Crl.) 131 (AP))
Prevention of Corruption Act, 1988 – Sec.
7,13(1)(d) and 13(2) – Acquittal – Doubtful evidence – Accused allegedly demanded bribe of Rs.300/- from PW1, trap conducted and tainted amount recovered from almirah of accused in his office – Phenolphthalein test conducted on fingers of left hand of accused gave positive result, but right hand fingers did not yield any result – case of accused that he received no bribe amount from PW1 though he tried to thrust something in his left side shirt pocket, he pushed it away with his left hand and that PW1 without his permission kept some amount in almirah – On one of the two dates on which accused is said to have demanded illegal gratification from PW1, accused was on casual leave and on the other date it happened to be a public holiday being a
Sunday – Therefore, question of accused demanding alleged bribe amount from PW1 on said dates does not arise – The other date is not mentioned in Ex.P1 complaint, which amounts to an omission – Evidence of witnesses does not corroborate evidence of PW1 and suffers from discrepancies, inconsistencies and variations – prosecution, held, failed to prove its 29 case beyond all reasonable doubt – Criminal appeal allowed – Conviction set aside.
2) T.Ramesh Reddy Vs. State of Andhra Pradesh (2010(1) ALD (Crl.) 342 (AP))
When a case rests upon the evidence of a solitary witness, the law is well settled that it must be true, trustworthy free from doubt and wholly reliable, when the evidence of a witness is put in the category of wholly reliable, then there is no legal bar to base conviction on the solitary testimony of the witness. Therefore the evidence of PW1 has to be scrutinized carefully and cautiously so as to place any reliance on his evidence. On this aspect it is pertinent to refer to a decision in “Vadvivelu Thevar Vs. The State of madras 1957 SC 614” where it was clearly held thus Para 10 generally speaking oral testimony in this contest may classified into these categories namely:
1. wholly reliable
2. wholly unreliable
3. Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict of it may acquit on the testimony of a single witness, it is found to be above re-approach on suspicion of interestedness, incompetence or subordination. In the second category the Court equally has no difficulty in coming to its conclusion.
It is in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial.
30
3) In Sudershan Parek Vs. Stae of A.P. (2008 (2) ALD (Crl.) 840 (AP) wherein it was held
Heavy duty cast upon the prosecution to prove demand and acceptance. Either of two, if not established accused cannot be held guilty of offence punishable under section 13(1)(d) r/w 13(2).
4) In K.Giri Vs. State of A.P. (2008 (2) ALD (Crl.) 821 AP) wherein it was held
Once a person acts as mediator on behalf of prosecution party he loses his character as independence witness and automatically becomes a part of prosecution story.
5) State of Kerala Vs. C.P.Rao (2011) 2 SCC (Crl) 1010):
“Mere recovery of tainted money divorced from the circumstances under which it is paid is not suffiicient to convict the Accused when there is no corroboration of testimony of complainant regarding demand of bribe by accused it has to accept that the complainant’s version is not corroborated and therefore the evidence of complaint can not be relied on.
6) In P.Sirajuddin Vs. State of Madras AIR 1971 Supreme Court 520 wherein it is held “Before public servant whatever be his status is publicly charged with acts of dishonesty which amount to serous misdeameanour or misconduct and a first information is lodged against him tehre must be some suitable prelimiary enquiry into the 31 allegations by a responsible officer. The lodging of such report against a person specifically one who like appellant occupies the top position in a department, even if baseless would do in calculated harm not onluy to the officer in particular but to the department he belongs to in general”
7) Between Gulam Mohammed Vs. State reported in AIR 1980 (SC) Page 1558 wherein it was held as “(A) P.C.Act – Conviction for accepting bribe – appreciation of evidence background of the case should not be lost sight of.”
8) Between Shantilal Rameshwar Vs. State of Rajasthan AIR 1976 sC 739 wherein it was held as “ Appreciation of evidence – Discrepancy in prosecution evidence – Appellant alleged to have demanded bribe through co-accused a peon –
Absence of evidence to show that appellant ever demanded bribe or even made suggestion about it to complainant – variation in dates on which demand made in evidence of complainant and in the report made by him – currency notes seized not from appellant but the co-accused – Fact of the complainant talking personally with appellant not spoken to by one of the two eye witnesses of the police party – Arrest made only of co-accused from whom currency notes were seized – Complainant not remembering the name of appellant – Held prosecution evidence was insufficient to establish beyond reasonable doubt that appellant demanded bribe from complainant through co-accused.” 32
9) Between G.Vishnuvardhan Vs. State of A.P. 2003(1) ALD (Crl) 607 (AP) wherein it was held as “ Even where a successful trap is laid, the Court has to see as to whether there are circumstances which can explain the possibility of the accused coming in to contact with the phenolphthalein powder otherwise than through acceptance of illegal gratification.”
10) Between Meena Vs. State of Maharastra 2000(1) ALD (Crl) 811 (SC) wherein it was held as “ P.C.Act, 1947 – Section 5(1)(d) r/w Sec.5(2) –
Mere recovery of currency notes from the table pad but not from the person or table drawer of the accused -0 held not sufficient to base a conviction.”
29.So also Ld.Spl.Public Prosecutor besides submitting his
Written arguments has also filed voluminous case law which are as follows:
1) In between State of A.P. Vs. K.China Swamy reported in (2016) 2 SCC (Cri) 355 wherein it was held.
Public Accountability, Vigilance and Prevention of Corruption – Prevention of Corruption Act, 1988 – Ss 7 and 13(2) r/w 13(1)(d)(ii) – Illegal gratification–Respondent,Assistant
Commercial Tax Officer demanded bribe for issuing registration certificate for PW-1' Kirana & General Stores – A trap was laid and he was caught red handed with bribe money –
Conviction restored.
33
Trial Court convicted respondent under Ss 7, 13(1)(d) r/w 13(2) of P.C.Act – high Court set aside conviction on basis that the phenolphthalein powder was also on the daybook which the respondent had signed, and that normal practice is to receive money with right hand whereas the respondent had allegedly received the amount with his left hand.
Held, it was never the contention of accused that the daybook itself had traces of phenolphthalein powder – It was so contended the IO could immediately have subjected the daybook itself to appropriate test – The other contention that a person would not normally receive money by his left hand, again has no basis – Respondent – accused accepted Rs.400 only out of Rs.500 offered by PW1 as per demand and instructed that Rs.100/- be given to V, which would negate the theory of any accidental touching of tainted notes – This part of the case and aspects concerning demand and acceptance completely stood proved –
Conclusions of the High Court cannot be even be termed as possible view in the matter –
Appeal Allowed.
2) in between D.Velayutham Vs. State Represented by
Inspector of Police, Salem Town, Chennai in(2016) 1 SCC (Cri) 105 wherein it is held
Criminal Trial – Witnesses – Trap witnesses – not to be treated on par with accomplice/particeps criminis/ - Trap witnesses is on a higher 34 pedestal – Corroboration is not mandatory in case of trap witness.
3) In between Chaitnaya Prakash Audichya Vs. CBI in(2016) 1
SCC (Cri) 186 wherein it is held
Public accountability – Vigilance – P.C.Act, 1988 –
Section 7,13(1)(d) r/w 13(2) and Section 20 of
P.C.Act, 1988 – illegal gratification – demand and acceptance of – fully established – testimonies of complainant and punch witness – completely consistent – tainted currency notes – recovered from person of accused – phenolphthalein invocable u/s.20 of P.C.Act, 1988 – stood unrebutted – Conviction confirmed.
4) In between Indra Vijay Alok Vs. State of Madhyapradesh reported in (2016) 1 SCC (Cri) 540 wherein it is held “P.C.Act, 1988 – Section 7, 13 (1)(d) r/w 13(2) of
P.C.Act, 1988 and Section 20 – demand and acceptance completely established – evidence of complainant, corroborated by statement of punch witnesses – presumption u/s.20 unrebutted –
Conviction confirmed.”
5) In Reparla Venkata Gopala Ratnam Vs State of A.P. reported in 2014 (1) ALD Crl 434 wherein it was held “The Hon’ble High court of AP held that the prosecution need not be proved by direct evidence.”
6) In Raghubit Singh Vs State of Haryana reported in AIR 1974
SC 1516wherein it was held
“The Hon’ble Supreme Court held seizure - of currency – trap is resipsa loquitut.” 35
7) In Hazari lal Vs Delhi Administration reported in AIR 1980 SC 873 wherein it was held “The Hon’ble Supreme Court held that raised presumption u/s 114 (a) of Indian Evidence Act recovery notes from accused would raise presumption that the accused received the bribe amount. “
8) In B. Noha Vs State of Kerala and another reported in 2007 (1) SCC Crl 711 wherein it was held “The Hon’ble Supreme Court held that while referring the judgment in State of AP vs Kommaraju
Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by accused.”
9) In State Vs. Jhan chand reported in 1984 Crl.J.NOC (104) Delhi wherein it was held
Regarding the question as to the capacity of accused to do favour or disfavour at the time of demand of bribe, the fact that he was not in a position to show any favour is of no consequence.
10) In Phula Singh V. State of Himachal Pradesh reported in AIR 2014 Supreme Court 1256 wherein it was held (A) P.C. Act, Ss 7, 13 (2) – Illegal Gratification – Proof –
Complainant lodged FIR alleging demand of bribe by appellant for cancelling demarcation report – No explanation furnished by appellant in respect of recovery of Rs.1,000/- form pocket of his pant – 36
Nor he could furnish any information as to how his fingers turned pink on being washed , with sodium carbonate solution – Appellant also failed t o furnish explanation in his statement under S.313
Cr.P.C. regarding any incriminating material that has been produced against him – Order of High
Court reversing Judgment of acquittal is not perverse - No interference.
Cr.P.C. (2 o f 1974), S. 313 (Paras 6, 8, 9, 11) (B) Cr.P.C. (2 of 1974), S. 313 – Examination of accused – Accused has right to maintain silence during examination or even remain in complete denial when his statement u/s 313 is being recorded – But in such an event adverse inference against him could be drawn.
11) In M. Narsinga Rao Vs. State of A.P. reported in 2001 (1)
ALD (Crl.) 407 (SC) wherein it was held
I) P.C. Act 1988 – Section 20 (1) – Presumption under when the gratification is found accepted by the Accused, a legal presumption can be drawn that such gratification was accepted as a renewal for doing public duty - It is a compulsory presumption – Presumption U/s. 114 of evidence
Act – Can also be drawn.
II) Evidence Act, 1872 –Sections 4 and 114 – P.C.
Act 1988, Section 20 (1) – “Factual presumption” and legal presumption” – Explained.
III) Evidence Act, 1872 – Section 3 – work “proved”- explained.
37
12) In B.Prameshwara Rao Vs. State reported in 1999 Crl.L.J.
2059 wherein it was held “ (A) Prevention of Corruption Act (49 of 1988), S.
13(1)(d)(i)I(ii) – Criminal misconduct by public servant – Proof – Trap case – Accused a Railway employee demanding bribe to help complainant in getting appointment in Railway restaurant –
Recovery of money from accused - Phenolphthalein test proved – Fact that money changed from hand of complainant to accused not disputed – Reason given therefore by accused not acceptable –
Certificate of complainant recovered from drawer of accused – No reason for false implication –
Requirement of S.13(1)(d)(i)(ii) – Satisfied –
Conviction proper.
13) In Md.Iqbal Ahmed Vs. State of A.P. reported in AIR 1979
S.C. 677 : 1979 Crl.L.J.633 wherein it was held that “it is incumbet on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either by producing the original sanction which itself contains the facts constituting the office and grounds of satisfaction or by adducing evidence alinude to show the facts placed before the sanctioning authority and the satisfaction arrived by it.” 38
14) In Madhukar Bhaskar Rao V/s. State of Maharastra reported in 2001 (1) ALD (Crl) 77 (SC)wherein it was held “P.C. Act, 1988 – Section 20 and 7 – Word ‘gratification ‘ mans any payment for giving satisfaction to a public servant who received it –
Public servant found in possession of currency notes smeared with phenolphthalein – presumption can be drawn that he accepted the gratification.”
15) In State of Maharastra Vs. Narsingara Rao Gangaram
Pimple reported in AIR 1984 S.C.-63 wherein it was held “B) Evidence Act (1 of 1872) S. 133 – Trap witnesses Evidence of Appreciation of –
Touchstone to be applied – Decision of Bombay
High Court. D/22-23/1/1976 Reversed (PC 1860
S.161 and 162)
Where in a trap case, the judge magnified every minor detail or omission to falsify or throw even shadow of doubt on the prosecution evidence then, it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. In deed, if such harsh touch stone is prescribed to prove such a case it will be difficult for the prosecution to establish any case at all.
Decision of Bombay High Court D-22/23-1-1976, reversed.
16 ) In State of A.P. Vs. R.Jeevaratnam reported in 2004 (6)
S.C.C.488 wherein it was held “(A) Prevention of Corruption Act, 1988 – Ss, 20(1), 7 and 13(1)(d) and (2) – Presumption under S.20(1) – Applicability – Prosecution under S.13(1)(d) r/w
S.13(2) – Evidence of Prosecution witnesses including that of an independent witness showing 39 that for clearing the tender file of the complainant, the accused officer of the Port Trust had demanded and received money in the specified hotel room and was caught by CBI red handed with marked money (Rs.10,000 in this case) in a briefcase in his possession – Prosecution evidence not shaken in cross-examination – On evidence, accused's statement that money must have been placed in his briefcase when he had gone to the bathroom found to be unbelievable – No explanation by the accused for going into the hotel room – In such circumstances, held, the presumption under
S.20(1) did arise – Contention S.13(1)(d) demand has also to be proved, rejected as in the present case the accused was also charged of an offence under S.7 and even otherwise the demand had been established by evidence.
17 ) In Sham Swarup Bhatnagar Vs. The state reported in 1983 (1) Crimes - 77 “Even One truthful witness is sufficient to convict a person under Prevention of Corruption Act if tainted money is recovered.”
18) In State of Kerala Vs. M.M.Mathew and another reported in
AIR 1978 S.C. 1571 “A) Evidence Act (1 of 1872) S. 2 – Evidence –
Appreciation of - Interested witness – Evidence of
I.O.
The courts of law have to judge the evidence
before them by applying the well recognized test
of basic human probabilities. The evidence of the
I.O. can not be branded as highly interested on ground that they want that the accused are 40 convicted. Such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic wroth and can not discarded merely on the ground that being public servants they are interested in the success of their case.”
19) In Dr. Subrahmanian Swamy Vs Dr. Manmohan singh reported in 2012 CrlJ 1519 wherein it was held “The Hon’ble Supreme Court observed as today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a s socialist, secular democratic republic. Ti cannot be disputed that where corruption beings, all rights and corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambles vision.”
Therefore, the duty of the court is that any anti corruption law has to interpreted and worked out in such a fashion as two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetual it.
41
20) In Mlukut Bihari & another Vs State of Rajasthan reported in Crl. Appeal No.870 of 2012 SC
It is not necessary that evidence of reliable witness is necessary to corroborate by another witness –
Presumption u/s 20 of P.C. Act.
21) In M.S.Varaprasad Vs. Inspector of Police, Anti Corruption
Bureau, Hyderabad 2014(1) ALD (Crl) 429 AP wherein it was held “No spontaneous explanation given by accused
before trap party members to that effect – Theory
put forth by accused, an afterthought – Defence plea rightly rejected by trail court Conviction upheld – Criminal appeal dismissed.
22) In Billa Nagal Sharief Vs State of A.P. reported in 2011 (1) ALT Crl. 144 SC
Plea of thrusting the money is to appellants pocket not fit to be believed in the face of categorical and consistent evidence of prosecution witnesses. N merit in appeal – Dismissed accordingly.
23) In Syed Abdul Moiz Vs State of A.P. reported in 2013 (1) ALD (Crl) 158 wherein it was held
P.C. Act, 1988 Sec 7 & 13 (2) r/w 3 (1) (d) –
Conviction – Rejection of defence theory and failure of accused to discharge his burden – Appellant working as Asst. Environmental Engineer issued show cause notice against the company stating that it was casing smell nuisance in the vicinity –
Defence theory put forward by appellant rightly rejected by Trial Court – Conviction.
42
24) InN.K. Seetharama Sarma Vs Statereported in 2013 (1) ALD (Crl) 431 (AP) wherein it was held
In the post trap proceedings appellant merely stated that he did not demand any bribe from complainant and allegations against him are false –
Defence theory that money was thrust into fold of his lungi by complainant rightly rejected by trial court as being highly unconvincing – Appeal dismissed.
25) In K. John Devasahayam Vs State of AP reported in 2014 (1) ALT (Crl) 280 wherein it was held
Case of the prosecution is that chemical test conducted on the fingers yielded positive results.
Bribe amount was recovered. Numbers of the currency notes in the pre trap proceedings tallied with the notes recorded.
The very theory put-forth by the appellant that
PW1 thrusted the amount into his pocket and ran away is quite unconvincing and unacceptable.
26) In State of Andhra Pradesh Vs. V.Vasudeva Rao reported in
AIR 2004 (SC)-0-960, 2004-SCC-9-3-19 wherein it was held “ (i) Prevention of Corruption Act, 1947 – Section 5 (2) r/w 5(1)(d) - Indian Penal Code, 1860 –
Section 161 – Evidence Act, 1872 – Section 4 –
Accepting illegal gratification – No explanation offered for presence of phenolphthalein powder –
However, High Court acquitted accused holding that prosecution has failed to prove demand and acceptance of money by the accused – Whether approach of the High Court is justified – (NO) – when receipt of money was admitted it was for accused to prove as to how the presumption u/s. 4 43 of the Act is not available – Accused convicted of offence u/s. 161 IPC and Section 5(2) r/w (1)(d) of the Act of 1947.
27) P.Satyanarayana @ Satteiah Vs State
Appreciation of evidence – Eye witnesses supported prosecution case in chief examination – Case adjourned to subsequent date for cross examination as defence counsel not ready –
Meanwhile manipulation made and witnesses turned hostile witnesses recorded in one sitting and consistent with medical evidence and othr evidence has to be accepted – Second version be rejected –
Courts in such case shall take steps to initiate proceedings per perjury against the persons concerned as reported in 1994(2) ALT (Crl) 95
Division Bench.
28) In Shiv Nandan Dixit Vs. State of U.P. reported in 2003(8)
SC 901 = 2004 CCR (1) 86 SC = 2004(1) Crimes 219
A.2 receiving money on behalf of AO1 –
Presumption can be raised
a) Sec.161 and 120-B – Explained.
b) Sec.5(1)(d) & 4 of P.C.Act 1947 words obtains for himself – cannote not only receiving bribe personally but receipt of any bribe either directly or indirectly – though demand of bribe made by A1 and the same was not received by him but by A2 –
Contention that presumption of guilt u/s was not available for offence u/s 5(1)(d) liable to be rejected.
c) Order passed by ITO was an official order – any act to comply with the said order will also be an official act – When A1 was directed return said 44 document, A1 was doing an official act – demand of bribe by A1 in that process is an offence u/s.161.
d) Involvement of A2 who was found receiving money alleged to have been demanded by A1 – demand made in the presence of A1 class 4 employee in the same office – document promise to be returned outside the office at 5:30 pm on the same day – A2 refusing to reduce the amount by saying that A1 would be suspicious on him – A2 was a party to the conspiracy – A2 obtained money on behalf of A1 – Conviction upheld.
29) Abdul Kaffar Vs. State of Kerala reported in 2004 SCC (9) 333 – 2004 Crimes – SC 106.
When the stand taken by the accused during trials not taken during post trap proceedings, first available opportunity the defence was not genuine.
30) In The State Vs A. Parthiban reported in 2008 Crl. L. J. 4772
SC wherein it was held “7 & 13 (1) (d) – Difference between offences explained – Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Sec.7 – acceptance of illegal gratification in pursuance of demand by a public servant would fall under 13 (1) (d).”
31) In Shiv Raj Singh Vs. Delhi Administration reported in AIR 1968 SC 1419 wherein it was held “No official favour or intention to do any official favour - Case made out under 7 & 13 (1) (d) of P.C.
Act. “ 45
32) In Girija Prasad Appellant Vs. State of Madhya Pradesh reported in 2007 SCC (Crl) (3) – 475 wherein it was held
A) P.C.Act, 1947 – S.4 and S.5(1)(d) r/w 5(2) presumption under section S.4 regarding acceptance of illegal gratification – Invocation of –
Prerequisites for - Rebuttal of said presumption –
Held, once it is proved that the amount has been received by the accused presumption under S.4 would get attracted – In such a case, it would be wholly immaterial whether the said acceptance of amount was for him or for someone else – It would also be immaterial whether the accused was or was not in a position to oblige the complainant –
However, the said presumption is not absolute –
Accused can rebut the said presumption by leading evidence – In the present case, there was evidence as to acceptance of amount by the accused. Hence, presumption under S.4 of the PC Act, 1947 got attached – accused failed to rebut the said presumption as he did not adduce any evidence whatsoever in that regard. Therefore, High Court as justified in reversing his acquittal and convicting him under the PC Act 1947 and S.161 IPC – Penal
Code 1860, S. 161 (since repealed) – prevention of
Corruption Act, 1988 – S.20 and S.13 (1)(d) r/w 13(2).
E) Criminal Trial – Witness – Police witness –
Recording of conviction solely on basis of testimony of police officials – Permissibility of held, can be recorded if on careful scrutiny of their evidence the same is found to be reliable and trustworthy – Not necessary to be corroborated by independent evidence – Evidence Act 1872 S. 3 114 III (e) and 4.
46
33) B. Noha Vs State of Kerala and another reported in 2007 (1)
SCC (Crl.) – 711 wherein it was held
a) There is no basis for PW1 to falsely implicate the accused – Evidence on record clearly show why the illegal gratification was demanded and accepted by the appellant – Evidence of PW1 does not suffer from any infirmity and evidence of PW2 is also clear credible and cogent.
b) When it is proved that there was voluntarily and conscious acceptance of money by the accused there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
c) When the amount is found to have been passed to the Public Servant the burden is on the Public
Servant to establish that it was not byway of illegal gratification – No case of accused that he was legally entitled to collect the amount from PW1– the burden held was not discharged by accused.
34) Sukhdev Yadav and others Vs. State of Bihar (2001) 8 supreme Court Cases 86.
“a)Criminal Trial – appreciation of evidence
Contradictions / inconsistencies/exaggerations / embellishments – minor variations in prosecution evidence – Probative value of such evidence and acceptability thereof – Held, once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same – If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence – Despite minor discrepancies in prosecution evidence, conviction 47 and sentence awarded to appellants under S.302
Appeal against conviction – conviction under
Sec.302 upheld despite minor variations in prosecution evidence – Evidence Act, 1872, Ss.3 and 155 – Criminal Procedure Code 1973., S.162.
b) Criminal Trial – Infirmities /Lapses /
Omissions – lapses – non- production of seizure list – Lapses, when do not affect the prosecution case – held, non-production of seizure list is undoubtedly, a lapse on the part of the prosecution – however, if there exists credible evidence on record, such a lapse would not affect the prosecution case – lapses, if do not have the effect of causing any prejudice to the accused, cannot be used to impeach the testimony of eyewitnesses – Criminal Procedure Code, 1973,
S.102(3) – Non -production of seizure list, held, would not affect the prosecution case.
35) Between Chaturdas Bhagwandas Patel Vs. State of Gujrat
Supreme Court of India Chaturdas Bhagwandas Patel vs The State Of
Gujarat on 16 April, 1976 Equivalent citations: AIR 1976 SC 1497, 1976 CriLJ 1180, (1976) 0 GLR 804, (1976) 3 SCC 46, 1976 3 SCR 1052 wherein it was held “ Indeed, when a public servant, being a police officer, is charged under Section 161, Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material of that purpose. If he had used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider 48 whether or not the public servant was capable of doing or intended to do ay official act of favour or disfavour ( see Bhanuprasad Hariparasad Vs. State of Gujarat and Shiv Raj Singh Vs. Delhi
Administration.).
In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under Section 4(1) of the Prevention of Corruption Act. It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged b y bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in section 161. The appellant had hopelessly failed to show such a balance of probability in his favour.
36. J.Raghavendra Chary Vs State of A.P., 2015 Cri. LJ (NOC) 25 (AP).
The Appellant, a sub-registrar, was convicted by the trail judge for demanding and accepting
Rs.1000/- from the complainant for returning original Mortgage Deed. The High Court found that the evidence of the complainant was trustworthy though the accused joined place a month early year, that not sending phenolphthalein solution to chemical analysis for corroboration was not fatal, and that only the accused could have place bribe currency notes in Almarah in record room, since the complainant was a stranger and was not acquainted with the said place, and observing that 49 the offence of demand and acceptance of illegal gratification was proved, up held the conviction.
37.Kalicheti Gopala Reddy Vs State, 2015 Cr.LJ (NOC) 26 (Hyd):
2016 (1) ALT (Crl) 217 (AP).
The Appellant was Convicted by the Trail Judge for demanding and accepting Rs. 1000/- from the complainant for issuing Pattadar Pass Book. The
High Court held that testimony of the complainant was corroborated by witnesses, and minor discrepancies were not fatal to the case of the complainant, that accused could not established inimical relations between him and the complainant and also accused took inconsistent please at different stages, which have been rightly rejected for being inconsistent, and confirmed conviction.
38.V.Vaman Rao Vs State of A.P. 2011 (3) ALT (Crl) 246 (AP).
The Appellant, a Mandal Revenue Officer, was convicted for demanding and accepting Rs. 300/- from complainant for issuing “Lavani Patta” in favour of the son of complainant. The High Court held that the trial court has rightly evaluated the evidence of the Prosecution witnesses and other material on record and found that there is no force in there evidence legal enough to prove the guilt of the appellant and for the offences as has been charged with and it was rightly convicted and sentenced the appellant therefore the same does not suffer from any error, irregularity or illegality warranting interference of this court. Appeal dismissed.
50
39. Ashis Chowdhry Vs State of A.P., 2012 (I) ALD (Crl) 449 (AP).
The Appellant, a Railway Protection Force
Inspector was Convicted by Spl. Judge for accepting a bribe of Rs. 3000/- from complainant for not booking cases against him. It was argued in the appeal that there was no demand of the accused on the complainant on 07.01.2003 and infact he was not in post on that day at 10.40 AM to 6.40 PM as per the diary maintained in the outpost the High Court found that the tainted amount was recovered from the house of accused,
Sodium Carbonate test proved positive before recovery of bribe money and acceptance of bribe from PW-1 in the presence of PW-2 was proved beyond doubt. The Court also held that contrary entries in station diary was of consequence, since entries in public record cannot be accepted as conclusive proof or as gospel truth ignoring other convincing evidence which may prove a different fact situation than that indicated by the said entries and confirmed the conviction of the appellant.
40.Ch. Viswesham Vs State, 2012 (2) ALD (Crl) 921 (AP): 2013 (1) ALT (Crl) 139 (AP).
The Appellant, Excise Superintendent, was convicted by the Spl. Judge for Anti Corruption
Bureau Case for demanding and accepting Rs.
2000/- from the contractor for renewing wine shop license. On appeal, it was argued that before the date of trap the License was already renewed, the money of Rs. 2000/- taken from the complainant (PW-1) for arranging telephone connection to the mother in law of PW-2 and that the complainant 51 bore a grudge as the appellant asked him to go out of office in front of several contractors.
Tainted money was recovered from Kurtha pocket,
Phenolphthalein test was proved positive and that the appellant instructed PW-4 Jr. Asst., not to hand over license to PW-1 without his permission. Held that merely because there are minor omission in sec 164 Cr.P.C. statement of PW-1, his evidence cannot be disbelieved on that score alone. When
PW-1 and the appellant were not in good terms, it is not understandable as to why the appellant allowed him and PW-2 to his house, offered sweets, received an amount of Rs. 2000/- from
PW-1. It is true that the standard by which the appellant has to prove the defence is not that of the standard of the proof beyond reasonable doubt, which rests on the prosecution and it is that of preponderance of probability. Here in this case, the defence plea taken by the appellant itself is quite unconvincing and unbelievable. Therefore, it cannot at all be said that appellant could be able to rebut the presumption against him under section 20 of the Act. The learned trail court rightly convicted the appellant and the order of conviction and sentence passed against the appellant does not required any interference in this appeal.
41. Dr. K.Satyanarayana Reddy Vs State of A.P. 2012 (2) ALD (Crl) 692 (AP) : 2013 (1) ALT (Crl) 56 (AP).
The Appellant, a Civil Surgeon Govt. Hospital at
Karimngar, was trapped when he demanded bribe of Rs.1000/- from complainant (PW-1) for conducting an operation on his son in law (PW-2) and was also convicted by the Spl. Judge. On 52 appeal, it was argued that the appellant could not conduct operation as there was no blood of the group and also that shadow (PW-8) was examined after section 313 Cr.P.C. examination, which costs doubt about the identity of the right person. The
High Court held that the appellant was not expected to receive money from the patient for any purpose including for procuring blood, the state proved its case and the appellant could not discharge the burden cast on him under section 20 of P.C. Act and dismissed the appeal.
42. Nageswara Rao Vs State of A.P., 2012 (2) ALD (Crl) 139 (AP).
The Appellant working in Commercial Tax Office was convicted by the Spl. Judge, Vishakapatnam, for demanding and accepting Rs. 1000/- as bribe for grant of Trade license to the complainant (PW- 1). Amount was recovered from the possession of the appellant. The High on appeal held that demand and acceptance of illegal gratification was proved by the prosecution witnesses and the defence does the amount was received towards purchase of NSCs to be deposited as Addl.
Security cannot be accepted as officers were instructed to receive only NSCs but not cash and dismissed the appeal.
43.P.Satyanarayana Vs State, 2013 (1) ALD (Crl) 346 (AP).
The Appellant, a Sub-Divisional Engineer in BSNL, was convicted for accepting bribe for restoring out going call facility to the Telephone of the complainant (PW-1). Money was recovered from trouser back pocket and chemical test proved positive. It was the defence of accused that 53 money was given by PW-1 towards telephone charges. On appeal, the High Court held that there was no circumstance infer that he had any grouse or enemity against appellant. No telephone bill was generated as on the date of trap and held that Conviction by the trial court was justified.
44. Dita Seetha Ramalingeswara Sarma Vs State A.P., 2013
Cr.LJ 4482: 2013 (1) ALD (Crl) 669 (AP): 2013 (2) ALT (Crl) 234 (AP).
The Appellant (A-1), a Prohibition Excise Inspector and a Head Constable (A-2) were prosecuted by
Anti Corruption Bureau for accepting bribe for releasing father and a relative who were arrested by A-1. The trail Judge acquitted A-2 and
Convicted A-1. It was argued in appeal that PW-1 and PW-2 had not fully supported prosecution case. On appeal, the High Court held that both
PW-1 and PW-2 did not totally depart from the basic version of prosecution. They, in fact, supported basic version of prosecution. Appellant failed to rebut the presumption and dismissed the appeal.
45. Syed Abdul Moiz Vs State of A.P. 2013 (1) ALD (Crl) 158 (AP):
2013 (1) ALT (Crl) 233 (AP).
The Appellant Assistant Environmental Engineer in A.P. Pollution Control Board at Nizamabad, was convicted for accepting Rs. 5,000/- as bribe from complainant (PW-2) for not taking action on the notice served on the company of PW-1. Money was recovered and chemical test was positive.
On appeal, the High Court found that the explanation of the appellant that he entered into 54 an agreement to sell him motor cycle to PW-2 and that he received Rs. 5,000/- from PW-2 as advance out of the sale price of 10,000/- rupees of his motor cycle could not accepted in view of the notice given to PW-2 by the appellant.
Conduct of the appellant shows that he threatened PW’s-1 and 2 to meet his demand.
Though they turned hostile, fact remains that PW- 2 lodged report to PW-6. Dismissed the Appeal.
30.keeping in view the above case law and overall facts and circumstances of the case, taking into consideration the rival contentions of both sides including the case law relied on by either side, I find as here under.
That PW1 is working as Addl.Asst.Engineer in the
APNPDCL and he was subjected to transfer by
Superintending Engineer from Nizamabad to Kamareddy.
Immediately after receipt of transfer orders he was relieved from his post at Nizamabad and reported the duty at his new station, Kamareddy and thereafter
Superintending Engineer issued proceedings by way of memo that PW1 and other officers who have been transferred should attend their previous stations to complete the incomplete work and until, the Last Pay
Certificate and Service Registers should not be forwarded. As admitted by prosecution and PW1, the
PW1 returned to his previous station Nizamabad and attended the pending work there, except the work order 55
No. 10-10009/2005-06. Whereas the accused is working as Divisional Engineer who is controlling Officer and he is the custodian of Service Register of the PW1 and inview of the proceedings issued by the Superintending Engineer who is a common superior for both PW1 and accused, issued proceedings under Ex.D1 and D5 directing
Divisional Engineer not to issue Last Pay Certificate and
Service Register to the Engineers who are under transfer including PW1. For that reason accused being Divisional
Engineer withheld Last Pay Certificate and Service
Register of PW1. Therefore, it can not be held that the accused has demanded Rs.10,000/- as stated by PW1.
Even if version of PW1, is taken into consideration as true, admittedly he was granted that no due certificate by mentioning the pending work on 25.8.2009 under Ex.D3 and he gave joining report on 26.8.2009 under Ex.D4 on the same day he approached ACB officials and gave report under Ex.P1 against accused. Then ACB officials laid trap on 29.8.2009. The defence of the accused can not be thrown out that he was present in his house and the PW1 entered into the house and thrusted tainted amount into his hands but he refused the same with his right hand.
Then after giving signal the ACB officials entered and found the tainted amount on the spiral note book kept on the sofa in the house. Therefore, the evidence of 56 acceptance of bribe amount from the evidence of PW1 is doubtful. The PW1 is only the witness for such alleged demand and acceptance of the alleged bribe amount, but at the same time Pw1 has nothing deposed in his evidence about the seizure of documents under Ex.P6 to P17.
Infact, PW2 has nothing deposed about the search list or seizure of the documents by the ACB officials. Whereas
PW13 who is another mediator has deposed about the seizure of the documents under E.P15 to P19. Therefore there is no sufficient corroboration between the evidence of PW2 and PW13 about the search proceedings conducted by the Investigation officer. Moreover after trap of the
Accused Officer in his house, it appears that the ACB officials also searched the Office of the accused and seized the some records under Ex.P15 to P19 but those documents are no way concerned with the trap proceedings and alleged demand of bribe by the accused.
There is nothing mentioned in Charge sheet that a disproportionate case is also registered and investigated against the accused herein. Therefore, keeping in view the overall evidence on record, I have come across a decision of the Hon’ble SC between Meena Vs. State of
Maharastra 2000(1) ALD (Crl) 811 (SC), it is relied on by
Learned defence counsel wherein at Para No.11 it was held by the Hon’ble Apex court as here under “ 57
Mere recovery of the currency note of Rs.20/- denomination, and that too lying on the pad on the table, by itself cannot be held to be proper of sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it feil on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of evidence of PW1 and PW3, who seem to have strong prejudice against the appellant, it would be not onlyh unsafe but dangerous to rest conviction upon their testimony.
31.Therefore, in view of the above decision and evidence on record, I come to conclusion that the prosecution could not establish the charge u/s. 7 and 13 (1)(d) r/w 13(2) of Prevention of Corruption Act against accused herein beyond all reasonable doubt and the presumption u/s.20 of Prevention of Corruption
Act, is not available to prosecution in the light of decision in
Meena Vs. State of Maharastra cited supra, as such I hold that accused herein is entitled to be acquitted.
58
32.In the result, from the foregoing reasons and findings, the accused herein is found not guilty for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and he is acquitted u/s. 248(1) Cr.P.C. The bail bonds of accused shall stand cancelled.
MO1 i.e., tainted amount of Rs.5,000/- is ordered to be returned to Complainant-PW1 if not reimbursed earlier by department and if returned, the same shall be remitted in the Government
Treasury and rest of the material objects Mos2 to 7 shall be destroyed, and MO8 spiral bound note book shall be returned to accused on his application, after appeal time is over.
Dictated to Stenographer Gr.I, transcribed by her,
corrected and pronounced by me in the Open Court on this the 31st day of August, 2019.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION:
PW1Bhukya Laxman Nayak, Addl.Asst.Engineer (SPM), Kamareddy
PW2 V.Prabhakar, Hostel Welfare Officer in Govt.B.C.Boys Hostel, Argul of Nizamabad.
PW3Thota Rajashekar, AAE, APNPDCL, Sadashivanagar.
PW4 M.Srihari, AAE, APNPDCL, Indoor, District stores, Nizamabad 59
PW5Y.Prakash, ADE(Operations), Nizamabad Town
PW6Ch.Harichand, ADE, SPM, Nizamabad
PW7S.Ramakrishna, Superintending Engineer, APNPDCL, Nizamabad
PW8 G.Sanjeev Reddy, Addl.Asst.Engineer, LT Metres, Nizamabad
PW9G.Gangaram, Jr.Accounts officer, CAS Section, Nizamabad.
PW10A.Odenna, UDC in Division Office, Nizamabad.
PW11 G.Ramana Kiran, D.E., Disciplinary Cases, T.S.Transco, Hyderabad.
PW12 K.Saidulu, Inspector of Police, ACB, Nizamabad.
PW13C.Devidas, Asst.B.C.Welfare Officer in the Office of Asst.B.C Welfare Office, Nizamabad.
FOR THE DEFENCE - NONE -
DOCUMENTS EXHIBITED
FOR THE PROSECUTION
Ex.P127-08-2009Complaint given by PW1
Ex.P2 27-08-2009Copy of Complaint
Ex.P3 29-08-2009Pre Trap Proceedings
Ex.P4 29-08-2009Post Trap Proceedings
Ex.P529-08-2009Rough Sketch 60
Ex.P625-8-2009Certificate issued by D.E.Electrical, Nizamabad.
Ex.P7---Attested photostat copy of Service Register of PW1
Ex.P821-08-2009Application submitted by PW1 along with bunch of documents (23 sheets)
Ex.P917-8-2009Attested photostat copy of letter (12 sheets)
Ex.P10---Inward Register
Ex.P1111-08-2009No Due Certificate
Ex.P1221-09-2012Revised Proceedings issued by Sri Hiralal Samariya Proc.No. CGM(HRD&TRG)/DE/DC-II/98-R/2012-1a
Ex.P13 27-08-2009Endorsement of PW12
Ex.P1429-08-2009First Information Report
Ex.P15 29-08-2009Attested copy of Inventory Proceedings conducted at the house of accused at Nizamabad.
Ex.P1629-08-2009Attested copy of Search List under which search was conducted in the office of D.E.Electrical, Nizamabad Division
Ex.P1729-08-2009NIL Search List at the house of accused, at Nizamabad.
Ex.P1822-09-2009 Service Particulars of accused
Ex.P19 29-08-2009Search List
FOR THE DEFENCE
Ex.D114-7-2009 Attested copy of the proceedings of the S.E.
Ex.D221-8-2009 Attested copy of the said letter.
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Ex.D3 25-8-2009 Clearance Certificate
Ex.D426-8-2009Joining Report
Ex.D5 12-10-2009Memo
Ex.D6---Commendation Certificates (7) in number.
Ex.D7 ---Service Register of PW1
MATERIAL OBJECTS MARKED
MO1Tainted amount of Rs.5,000/-
MO2Sealed cover containing the sample phenolphthalein powder used for the demonstration purpose during pre trap proceedings.
MO3Sealed cover containing the sample powder of sodium carbonate used for the demonstration purpose during pre trap proceedings.
MO4Sealed cover containing the sample powder of sodium carbonate used during post trap proceedings.
MO5Sealed bottle containing right hand wash of accused
MO6 Sealed bottle containing left hand wash of accused
MO7 Sealed bottle containing resultant solution for the contacted portion of tainted amount in the note book lifted with cotton swab.
MO8One Spiral Note Book.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
1
IN THE COURT OF THE SPL. JUDGE FOR TRIAL OF SPE & A.C.B
CASES : AT KARIMNAGAR.
PRESENT : SRI M.JOHNSON, Spl.Judge for trial of SPE & A.C.B Cases,
K A R I M N A G A R.
Dated this the 6 th day of August, 2019.
CALENDAR CASE No. 104 of 2015
Between:
The State through Anti-Corruption Bureau, through the Inspector of Police, Anti Corruption Bureau, Nizamabad Range, Nizamabad. … Complainant
AND
1) Sri Narra Vejanna @ Bhojanna S/o Kasaiah, 41 Years, Occ: Executive Officer at Gram Panchayat, Bhiknoor, Nizamabad District R/o H.No. 6-296/1, Balapur “X” Road, Rangareddy District.
2. Sri Pandula Gangaiah S/o Balaiah, Occ: Karobar, Gram Panchayat, Bhiknoor, Nizamabad District, R/o 2-6/1, Main Road, Jangamp0ally, Bhiknoor (M), Nizamabad District.
...Accused Officers 1 & 2
NOTE: The case against A2 is abated as he is reported
died.
This case is coming for final hearing on 30-7-2019 in the presence of Special Public Prosecutor for the state and of Sri D.Jayasurya, Advocate for the Accused, upon perusing the material on record, hearing both sides, having stood over for consideration till today, this court made the following:
2
J U D G M E N T
1.The State represented by Anti-Corruption Bureau,
Nizamabad Range, Nizamabad filed charge sheet against the accused Officer No.1 to prosecute him for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and
Accused No.2 for the offence U/s. 12 of Prevention of Corruption
Act, 1988.
2.According to the charge sheet, case of the prosecution is as here under:
Case of the prosecution in brief is that, at the time of alleged occurrence, the accused no.1 was working as Executive
Officer at Gram Panchayat, Bhiknoor, Nizamabad District from 11.7.2008 to 31.10.2008 and A2 was working as Karobar, Gram
Panchayat, Bhiknoor (M), Nizamabad District from 1.3.1985 to 31.10.2008 and by virtue of posts held by them, they comes under the category of public servant within the meaning of
Sec.2(c) of Prevention of Corruption Act, 1988.
3.It is the case of the prosecution that on 29.10.2008 at about 4.00 PM the defacto-complainan-PW1-Siddi Ramulu came to the Office of the Dy.Superintendent of Police and lodged a report under Ex.P1 stating that he is working as Telecome
Mechanic in BSNL Telephone Exchange at Pedda Mallareddy 3
Village and he is having house bearing No. 8-99 situated at
Bhiknoor village and in the month of August, 2008 he submitted an application along with the house plan prepared by an
Engineer to obtain plan approval from the Executive Officer of
G.P.Bhiknoor. Subsequently in the month of September, 2008 the Executive Oficer i.e., AO1 herein along with the staff visited the subject house of PW1 and measured the plot area and went away. Thereafter, on 22.9.2008 the AO1 sent one of his employee to the house of the PW1 and asked PW1 to come to the office of the Gram Panchayat for the purpose of obtaining approved plan. Therefore, PW1 went to the Executive
Officer/AO1 for remitting the necessary tax of Rs.759/- for the existing house and also asked AO1 about the approved plan for which AO1 has informed that the Clerk Gangaiah is not available and he demanded the bribe amount of Rs.15,000/-. But PW1 expressed his inability to pay such huge amount of Rs.15,000/- and subsequently on 15.10.2008 PW1 again went to the Office of the Gram Panchayat and requested AO1 herein to reduce the bribe amount demanded by him and accordingly AO1 herein asked PW1 to pay Rs.12,000/- towards bribe for sanction of the approved plan. However on repeated requests of PW1, AO1 again reduced the bribe amount to Rs.10,000/-. While so, on 17.10.2008 AO1 has contacted PW1 over the phone and insisted to bring the bribe amount demanded by him for which the complainant has informed AO1 that he is in busy with his 4 departmental work and requested some time to procure the amount and he will pay the amount of Rs.10,000/- after Diwali
Festival. On that AO1 asked PW1 to come along with demanded bribe amount of Rs.10,000/- on 31.10.2008 to Gram Panchayat
Office and obtain approved plan. However, PW1 was unwilling to pay the said amount and approached the ACB officials and lodged a report under Ex.P1 to take necessary action.
4.On receipt of Ex.P1 report and after due verification, the
LW11 N.S.Karunanidhi, Dy.Superintendent of Police, ACB,
Nizamabad registered the complaint against accused as a case in Cr.No. 22/ACB-NZB/2008 u/s. 7 of Prevention of
Corruption Act, 1988, and issued FIR as per Ex.P18 and taken up investigation.
5.During the course of investigation, LW11-N.S.Karunanidhi,
Dy.Superintendent of Police, Anti Corruption Bureau, Nizamabad
Range secured two independent mediators PW2-A.Vinod Kumar and LW3-T.Anand to his office at Nizamabad and also secured the presence of PW1 at decided trap against AO1 and AO2 and after ascertaining the correctness of the contents of the complaint under Ex.P1, LW11-the Dy.Superintendent of Police, asked PW1 to bring proposed bribe amount and accordingly PW1 visited the Office of the Dy.Superintendent of Police, Anti
Corruption Bureau, Nizamabad, and after necessary formalities 5 such as introduction of PW1 to the mediators and vice-versa and stated about the proposed trap against AO1 and demonstrated phenolphthalein test and explained significance of the test. It is also the case of the prosecution that on the date of trap AO1 took amount of Rs.2,000/- and kept the same on the top of the
Daily Movement Register of Executive Officer which is in his right side table drawer. AO1 when called AO2 and on the instructions of AO1 the remaining amount of Rs.8,000/- was taken out from the Pension Register by AO2 with his right hand and counted the amount with his both hands and kept the same in his left side wearing shirt pocket. The bribe amount of
Rs.2,000/- was recovered and seized from the right side table drawer of AO1 at his instance and the remaining Rs.8,000/- was recovered from the wearing shirt pocket of AO2. The Sodium
Carbonate Solution conducted to the right hand fingers of AO1 yielded positive result and the dust of phenolphthalein powder collected from the upper portion of book with the help of cotton swab which came into contact with the tainted currency notes when dipped into sodium carbonate solution also yielded positive result. The Sodium Carbonate Solution test conducted on both hand fingers of AO2 also yielded positive result, the inner flap of wearing shirt pocket of AO2 which came into contact with tainted currency notes also yielded positive result.
Hence the test of phenolphthalein powder collected from the
Pensioners Register in between Page No.16 and 17 which came 6 into contact with the tainted currency notes yielded positive result. The official favour documents also seized the
Dy.Superintendent of Police from the Office of the A1 on the date of trap i.e., on 31.10.2008 and then arrested both AO1 and
AO2 on 31.10.2008 and they were produced before the Court of
Prl.Spl.Judge for trial of SPE & ACB Cases, Hyderabad for Judicial remand and subsequently they were enlarged on bail.
6.It is the case of the prosecution Dy.Superintendent of
Police N.S.Karunanidhi-LW11 has examined and recorded the statements of PW1-Bandi Siddiramulu, PW3-Aleti Tirupathi, PW6-
Smt.Rajamani, PW4-Godugu Yellaiah, PW5-Vorem Surender as circumstantial witnesses. It is further stated in the charge sheet that subsequent to Dy.Superintendent of Police-LW11 , PW10-
K.Seetharamulu, Inspector, Anti Corruption Bureau, Nizamabad has taken up further investigation of the case and he recorded the statements of PW7-S.Srinivas Rao, Sub Inspector of Police,
Police Station Town-I, Nizamabad and got recorded the statement of PW1 u/s. 164 Cr.P.C through Judicial Magistrate of
First Class, Prohibition & Excise Court, Nizamabad and
subsequently the material placed before the Director General,
Anti Corruption Bureau, Hyderabad, and after obtaining permission / sanction proceedings as against AO1 granted by
Commissioner, Panchayat Raj & Rural Employment, Urdu Hall
Lane, Himayathnagar, Hyderabad, the Investigation Officer 7
PW11-Sri K.Saidulu, Inspector of Police, Anti Corruption Bureau,
Nizamabad Range filed charge sheet against the accused No.1 for the offences u/s.7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 and against AO2 for the offence u/s.12 of Prevention of Corruption Act, 1988 by depositing the case property vide CPR No. 15/2012 (on the file of II Addl.Spl.Judge for trial of SPE & ACB Cases, Hyderabad).
7.This case was taken cognizance for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the AO1 and against AO2 for the offence u/s.12 of
Prevention of Corruption Act, 1988.
8.On appearance of the accused, copies of documents were furnished to him as required u/s. 207 Cr.P.C.
9.On 7.11.2012 Learned Predecessor of this Court examined the accused u/s. 239 Cr.P.C., the accused denied the offences, hence, charges u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of
Corruption Act, 1988 against the AO1 and u/s.12 of
Prevention of Corruption Act, 1988 against AO2 read over and explained to them in Telugu, but the accused pleaded not guilty and claimed to be tried.
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10.During the course of trial, on behalf of the prosecution,
Pws 1 to 11 were examined and Ex.P1 to P19 were marked and at the same time on behalf of the accused D1 to D3 were marked through PW1 and prosecution also got marked Mos 1 to
11. In this case the tainted amount allegedly seized at the time of trap has not been produced before this Court on the ground that amount was stolen on transit. Consequently the amount has not been produced for which prosecution relied on evidence of PW7.
11.After completion of prosecution evidence, since A2 has been reported died and case against A2 stands abated the examination u/s. 313 Cr.P.C., by explaining the incriminating evidence on record to the accused no.1 in vernacular language for which the accused AO1 has denied the prosecution evidence and reported no defence evidence on his behalf.
12. I have heard arguments of Learned Spl.Public Prosecutor on behalf of the State and also contentions of Learned defence counsel and both of them filed their written arguments. Apart from written arguments, the accused herein also filed written statement of defence. Further both Learned Spl.Public
Prosecutor and counsel for the accused filed case law relied on by them.
9
13.Now, the points for determination is whether the prosecution is able to prove the charge u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the AO1 beyond reasonable doubt?
14. So far as the charge against A2 for the offence u/s. 12 of
Prevention of Corruption Act, 1988 is concerned, since he is reported died and case against A2 is stands abated the prosecution evidence is confined to AO1 only for the charge u/s.
7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
15. In order to prove the charge against AO1 herein, the prosecution must prove the essential ingredients of offence u/s.
7 r/w 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 the following factors must be proved.
i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
Iii) for himself or for any other person.
iv) Such gratification was not a remuneration to which the accused was legally entitled.
v) The accused accepted such gratification as a motive or reward for:-
a) doing or forbearing to do an official act: or
b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions: or 10
c) rendering or attempting to render any service or disservice to some one with the
Central or any state Government or
Parliament or the Legislature of any State of with any local authority, Corporation or
Government company referred to in Sec. 2
Clause (c) or with any public servant whether named or otherwise.
For the offence u/s. 13(1)(d) the ingredients of this clause are
1) He should hold office as Public Servant.
2) He should obtain any valuable thing or pecuniary advantage for any person
3) Such obtaining of valuable thing or pecuniary advantage is without any public interest.
A reading of this provision would make it amply clear that all the three wings of clause
(d) of Sec.13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of word or (at the end of each sub clause). Thus under sec. 13(1)
(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under sec. 13(1)(d) of the
Prevention of Corruption Act, 1988. on the same reasoning “obtaining a valuable thing or pecuniary advantage merely by abusing official position “ as contemplated u/s.13(1)
(d)(ii) in itself would satisfy the ingredients of 11
Criminal misconduct under Sec. 13(1)(d)(i) of the Act, 1988.
16.Now coming to the evidence on record. PW1-B.Sidhi
Ramulu, the defacto-complainant who lodged report under Ex.P1 against AO1 and AO2, has deposed in his evidence that he is having ancestral property bearing H.No. 8-99, situated at
Biknoor village of Nizamabad District and for the purpose of construction of new house in the house plot, he submitted an application in the office of AO1 seeking permission to construct a house, in the month of August, 2008. Subsequently, on 22-9-2008 the staff of the office of AO1 have visited the house and gave intimation to wife of PW1 asking PW1 to meet AO for the permission orders. He also deposed that his wife informed the same to him and then on the same day at about 12.30 PM he met AO1 at Gram Panchayat Office, but he demanded
Rs.15,000/- as bribe amount for approval of sanction plan, but
PW1 expressed his inability to give such a huge amount, as such on 15-10-2008 again PW1 went to office of Gram panchayat and met AO1 and again requested him to issue permission/sanction to construct the house and then on that day AO1 has reduced the bribe to Rs.12,000/- and however
PW1 agreed to give Rs.10,000/-. While so, on 17-10-2008 AO1 called upon him over phone to come to the office along with money as agreed. However, PW1 is unwilling to give the bribe 12 amount to AO1, as such on 29.10.2008 he approached Anti
Corruption Bureau officials and lodged report under Ex.P1 to take necessary action. PW1 also deposed, basing on his report under Ex.P1, ACB officials registered the case, made enquiries and called upon two mediators to the office of
Dy.Superintendent of Police on 31-10-2008. Further, as per the directions of the ACB officials he carried Rs.10,000/- (1000x10) and handed over the same to the ACB officials and then
Dy.Superintendent of Police, Anti Corruption Bureau secured presence of constable and directed him to apply chemical powder to the currency notes and in the presence of mediators, the notes were kept in the left side shirt pocket of
PW1 and further directed the mediators and other trap officials to dip their fingers in a solution prepared by him in a separate glass tumblers.
17.He further deposed, when we did so, the solution did not change its colour, and when the constable who applied chemical powder to currency notes dipped his fingers in the solution, the solution turned to pink colour. Accordingly, after chemical test, the Dy.Superintendent of Police gave instructions to him to give the proposed bribe amount to AO1 only on his demand and not otherwise and also instructed not to shake his hands with accused either before or after giving the amount and further asked him to give the signal by wiping his face with kerchief, if 13 accused accepts the bribe. PW1 also deposed that the
Dy.Superintendent of Police and other ACB officials, himself and mediators started from the Office of Dy.Superintendent of
Police at 11.00 AM in TATA Sumo vehicle, proceeded to
Biknoor and reached office of Gram Panchayat Biknoor at 12.00 Noon and stopped their vehicle at a distance of 200 yards from the office of Gram Panchayat, Biknoor and then
Dy.Superintendent of Police directed him to go to the office of
AO1 by reiterating the earlier instructions to be followed and accordingly he went to the Office of AO1 and AO1 was sitting in the chair and on seeing him he welcomed him and offered seat and then AO1 has enquired whether he brought bribe of
Rs.10,000/- or not and PW1 told him that he is ready with the amount. So that on asking AO1, he kept the amount in Register in between Page No.16 & 17 as directed by AO1. Then AO1 picked up two currency notes ( Rs.1,000/- each) out of
Rs.10,000/- and then called upon AO2 into his room and handed over the remaining Rs.8,000/- to AO2. Then AO1 has asked PW1 to come after three days for collecting permission.
PW1 also deposed, that he came out from the Office of Gram
Panchayat and gave pre-arranged signal by wiping his face with kerchief. Then, the Dy.Superintendent of Police and other trap party entered into the office of Gram Panchayat, went to
AO1 and at that time Dy.Superintendent of Police called him and asked him to wait for some time outside the office and after 14 one hour he again called him into the office room of AO1 and asked as to what was happened after his coming and going from the office. At the same time, Dy.Superintendent of Police also recorded statement of PW1 at the office of Gram
Panchayat and subsequently his statement was also got recorded before the Magistrate Court, at Nizamabad.
Accordingly, PW1 has deposed with regard to the contents of
Ex.P1 and action taken by ACB officials and further stated Ex.P2 is his application dt. 18-6-2008 submitted to Surpanch and
AO1 at the office of Gram Panchayat, Biknoor. Ex.P3 is copy of plan with two spare copies of attested plan. Accordingly Pw1 has deposed his evidence in chief.
18.Next considering the evidence of PW2-A.Vinod Kumar, the then Senior Assistant in the office of Superintending Engineer, R & B Office, Nizamabad has deposed in his evidence during the year 2005 to 2010 he worked as Senior Asst. in the said office and while so on 30-10-2008 at 4.00 PM the Superintending
Engineer, has instructed him to go to office of ACB, Nizamabad on 31-10-2008 at 7.00 AM. Accordingly, he proceeded to office of Dy.Superintendent of Police, ACB, Nizamabad at 7.00 am and noticed that Dy.Superintendent of Police, and two Inspectors and their staff were present and then LW3-T.Anand, another mediator were present and after arrival of PW1, he was introduced to them by the Dy.Superintendent of Police and then 15 informed about the purpose of securing their presence and shown a copy of complaint of PW1 to them to go through it and accordingly PW2 and T.Anand-LW3 have gone through the contents of the copy of complaint under Ex.P4 and put their initials on it and ascertained the facts. He also deposed in his evidence in chief that Dy.Superintendent of Police has ascertained with PW1 whether he brought the proposed bribe amount or not on that Pw1 replied that he is ready with the amount of Rs.10,000/- (1000x10=10,000/-). As per the direction of Dy.Superintendent of Police, a constable came over there and applied phenolphthalein powder to the said currency notes and and also conducted sample chemical test.
Accordingly PW1 deposed similar facts as deposed by PW1 and it is to be noted that PW2 has prepared mediator report under
Ex.P5 with regard to the events taken place in the office of the
Dy.Superintendent of Police.
19.As per the evidence of PW2 he has prepared Mediator
Report-I report under Ex.P5 and both the mediators signed on it and pre trap proceedings concluded by 8.45 AM. PW2 also deposed similar to PW1 that on 31.10.2008 at about 9.00 AM they have started from the office of Dy.Superintendent of Police in a Tata sumo vehicle, and reached Office of Gram Panchayat
Biknoor and evidence of PW2 is also in corroboration with the evidence of PW1 with regard to the pre trap proceedings as well 16 as the trap conducted as against AO1. So far as the role played by PW2, he stated that after reaching office of Gram Panchayat, vehicle was stopped at a distance of 200 metres and
Dy.Superintendent of Police has instructed PW1 to proceeded to the office and to do as directed by him earlier under Mediator
Report-I proceedings. Accordingly, PW1 went into the office of the Gram Panchayat and after he came out from the office he gave pre arranged signal as instructed and then
Dy.Superintendent of Police and two Inspectors and PW2 and another mediator/LW2 entered into the office of Gram
Panchayat and found that AO1 was sitting in the chair and then
Dy.Superintendent of Police, ACB, Nizamabad (LW11
N.S.Karunanidhi) introduced himself to AO1 by disclosing his identity and also purpose of their visit, and then AO1 became shocked and then, Dy.Superintendent of Police questioned AO1 whether he demanded and accepted bribe from PW1 just before their arrival but AO1 did not admit and denied the same.
Subsequently, he confessed the offence and placed the tainted amount on the table. As such Dy.Superintendent of Police prepared sodium carbonate solutions in 2 separate glass tumblers and conducted chemical test asking AO to dip his left and right hand fingers in the said 2 glass tumblers separately, on doing so right hand wash of AO1 turned to pink colour but left hand wash did not change its colour. When
Dy.Superintendent of Police questioned AO1 about the tainted 17 amount, he revealed that out of Rs.10,000/-, he kept Rs.2,000/- with him and gave remaining Rs.8,000/- to AO2. Then
Dy.Superintendent of Police called AO2 and questioned him about the tainted amount of Rs.8,000/-, then AO2 picked up the said amount from left side shirt pocket and produced the same
before Dy.Superintendent of Police as such Dy.Superintendent
of Police prepared sodium carbonate solution test against AO2 also, and the result yielded positively and the solution turn into pink colour. Therefore, Dy.Superintendent of Police has seized the solution by putting into separate glass bottles and preserved. Furthermore, Dy.Superintendent of Police also conducted chemical test over the inner linings of shirt pocket of AO2, and the result also yielded positively. Then
Dy.Superintendent of Police questioned AO1 about the tainted amount of Rs.2,000/-, he disclosed that he kept the amount in right side table drawer under a Register, and he handed over the same to Dy.Superintendent of Police. Then
Dy.Superintendent of Police also subjected contacted portion of tainted amount with the two registers in the table drawer by swabbing and tested. On doing so the result also yielded positively. The resultant solutions were also seized and preserved. Entire proceedings are reduced into writing under
Mediator Report-II prepared by PW2 and obtained signatures of the mediators and the trap officials also signed on it.
18
20.Accordingly PW2 deposed with regard to the trap proceedings recorded under Mediator Report-II and further got marked MO1 is the sealed cover containing sample phenolphthalein powder, MO2 is one sealed cover containing sodium carbonate powder, MO3 is one sealed cover containing sodium carbonate powder used during post trap proceedings,
MO4 is one sealed bottle containing right hand wash of AO1,
MO5 is one sealed bottle containing left hand wash of AO1, MO6 is one sealed bottle containing right hand wash of AO2, MO7 is one sealed bottle containing left hand wash of AO2, MO8 is one sealed bottle containing collected dust of phenolphthalein powder from the upper portion of daily movement register from the office of AO1, MO9 is one sealed bottle containing collected dust of phenolphthalein powder from the upper portion of
Pension register from the office of AO1, MO10 is one sealed bottle containing resultant solution of inner flap of wearing shirt of AO2, MO11 is wearing shirt of AO2. Thereafter,
Dy.Superintendent of Police prepared sketch of the scene of occurrence under Ex.P13 and arrested both AO1 and AO2 by 6.00 PM.
21.Apart from the above facts, PW2 also deposed with regard to the seizure of registers and records from the office of the
AO1 such as the Original Note file, Inward Register, Attendance
Register, Minutes Register, Movement Register and Pension 19
Register. Accordingly, they were marked as Ex.P6, the note file (except Ex.P2 & P3), Ex.P7 is the Inward Register, Ex.P8 is the Attendance Register, Ex.P9 is Movement Register, Ex.P10 is
Minutes Register, Ex.P11 is Pension Register. Further, entire proceedings conducted in th office of the AO1 is reduced into writing as Mediator Report-II marked as Ex.P12.
22.Before going to the evidence in cross-examination of Pws 1 and 2, it is relevant to mention here that the
Dy.Superintendent of Police, Nizamabad conducted the entire proceedings under Ex.P5 and P12 along with PW9 and
Investigation Officer has been cited as LW11 N.S.Karunanidhi, the then Dy.Superintendent of Police, ACB, Nizamabad, but he is not been examined by the prosecution stating that
Investigation Officer/LW11 was expired. Therefore, the facts relating to Mediator Report-I and Mediator Report-II are stated by the accompanying Police Officer i.e., PW9 A.Laxminarayana,
Inspector, ACB, Sangareddy, Nizamabad Range and he deposed with regard to the action taken by LW11 and he specifically deposed in his evidence in chief that he is also associated with Dy.Superintendent of Police N.S.Karunanidhi (LW-11) and on 31-10-2008 and he participated in entire proceedings under Mediator Report-I and Mediator Report-II.
Therefore, it is the case of the prosecution that though
Dy.Superintendent of Police Karunanidhi/LW11 has not been 20 examined on behalf of the prosecution, the evidence of PW9 may be taken into consideration with regard to the proceedings conducted under Mediator Report-I and Mediator Report-II and also seizure of material objects under MO1 to MO11. Another crucial fact is that according to prosecution case, at the time of seizure of Mos 2 to 11, the tainted amount of Rs.10,000/- (1000x10) was also seized under MR-II Ex.P12 but the said amount could not be deposited in the Court because the said amount was subjected to theft at bus stand, Nizamabad while carrying for the purpose of deposit in the Court at Hyderabad. To prove this fact prosecution has examined PW7 S.Srinivas Rao, the then Sub Inspector of Police, P.S.Nizamabad I-Town, who issued FIR under Ex.P15 copy of FIR No. 268 of 2009 of
PS.Nizamabad. So also relied on Ex.P16 copy of final report filed in FIR no. 268 of 2009 of P.S.Nizamabad to show that the amount of Rs.10,000/- beyond recovery. Therefore it is the case of the prosecution that though tainted amount with specific currency notes is not deposited before the Court because of theft of rexine bag from the possession of PW10 which contains case properties of (3) cases including present case. As such, the evidence of PW7 and Ex.P14 and Ex.P15 may be considered as relevant evidence for non deposit of the tainted amount for which the prosecution case can not be brushed aside.
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23.Keeping in view of the evidence of PW1, PW2 and also PW9 who deposed on behalf of N.S.Karunanidhi-LW11, it is also necessary to go through their evidence in cross-examination of
PW1 and PW2.
24.PW1 was subjected to cross-examination by the counsel for the AO1 and it is elicited from him that he do not remember date of giving application inf the Gram Panchayat Office and he did not receive any token of submission of the application. He further stated that Executive Officer/AO1 was present at the time of submission of his application in Gram Panchayat Office.
But he did not state the said fact in the statement given before the Magistrate under sec. 164 Cr.P.C statement. Infact in 164
Cr.P.C statement, as per Ex.D1, PW1 categorically stated “when application submitted in the office, Biknoor, Bojanna, Executive
Officer was not present”. Similarly in further cross-examination with regard to the visit of Surpanch, Upasurpanch and other officials from, the office of the Gram Panchayat visited the house plot and for the purpose of taking measurements and Bojanna,
AO1 was also present with them, but in the statement given to the Magistrate u/s. 164Cr.P.C he specifically stated that Bojanna was not there along with the said persons at the time of measurements as per Ex.D2. So also PW1 admitted as in Ex.D3 i.e., “after one month, the Village Servant came and informed to come to office stating that plan was ready and collect the 22 same from office” Accordingly, it is the contention of the counsel for the AO, that PW1 is inconsistent with his version and in his evidence in chief deposed the facts contrary to Ex.D1 to
D3 as to submission of his application and inspection by the GP staff for taking measurements. Infact according to the evidence of PW1 also AO1 was not present in the office at the time of his submission of the application and there was no any direct demand made by the AO1 as per the own version of PW1, but he created a false story and deposed false facts in his evidence.
To substantiate this contention, Learned counsel for the accused pointed out by way of written arguments and pointed out that as a matter of fact, PW1 submitted his application to the Sarpanch seeking sanction or permission for construction of the house in open yard of ancestral property without there being any documents or title to the property. It is also pointed out in the cross examination of PW1 that he do not remember the date when application was submitted in the office of Grampanchayat seeking permission and he categorically stated before the Court that he never stated before the Magistrate as in Ex.D1 to D3 which clearly indicates that PW1 is a tutored witness to suit the facts of the case and to implicate AO1 in the case.
25.Accordingly it is the contention of the defence counsel that
PW1 is not reliable witness that one way he deposed that the
Nagabhushanam Goud, Sarpanch, Karobar Gangaiah, Upa 23
Sarpanch, Mohan Reddy and Satyanarayana Ward member have visited the vacant site and took measurements, but as per
Ex.D2 no application was submitted to AO in Gram panchayat office for approval of the house construction. So also, infact the application was sent by Sarpanch of Gram Panchayat to AO1 for approval and in that he noticed the defect that PW1 was not holding clear title of the said land and AO1 on several occasions admonished Pw1 for not possessing clear title of the property, hence AO1 can not inspect the house property and aggrieved by the same, PW1 created a false story and developed vindictiveness as against AO1 and filed false report under Ex.P1
before the Police. So also, Learned counsel for the accused
pointed out the evidence o PW1 in his cross examination that in
Ex.D4 the portion of 164 Statement of PW1, he did not state
before the Magistrate that AO1 reduced the demanded bribe
amount from Rs.12,000/- to Rs.10,000/- on 15.10.2008.
26.Keeping in view the contentions of the Learned counsel for the accused and also testimonies of Pws 1 and 2, I have also gone through the evidence in cross examination of PW2 who is mediator to the Mediator Report-I and Mediator Report-II reports marked as Ex.P5 and P12. It is elicited from PW2 that he and another mediator did not question PW1 at the office of
Dy.Superintendent of Police about the application of PW1 given to Gram Panchayat for approval of the plan for construction of 24 the house. PW1 did not shown any such proposed plan of construction to the mediators. Similarly PW1 did not show title deed or any other connected documents relating to the title of the property for which he is seeking permission. PW2 categorically deposed in his evidence the amount of Rs.10,000/- produced by PW1 was counted and noted down numbers of the denomination on separate sheet and handed over those papers to the Dy.Superintendent of Police. But the said paper is not shown to him when he was examined during his evidence in chief. He also further stated that the Dy.Superintendent of
Police instructed PW1 to handover the tainted currency notes to
AO1 and after some time they have received signal from PW1 after 15 minutes. And then MR II proceedings were recorded in the office of the Gram Panchayat but the defence of the accused is total denial of MR II and no such proceedings were conducted at the office of the GP in the presence of the mediators and the said proceedings prepared at the office of the GP in the presence of the mediators and the said proceedings prepared at the office of the Dy.Superintendent of Police and implicated the accused in the present case. It appears from the cross examination that Mos 5 to 11 hand washes and colour washes marked in the case are confronted tot he witness PW2 and they are in white colour as on the date of evidence of PW2.
Accordingly the defence of the accused is of total denial of the a case of the prosecution including testimony of Pws 1 and 2.
25
27.The other suggestions made by the defence counsel with regard to the Ex.P12 and Mos 1 to 11 are denied by the pW2.
However, in further cross-examination conducted on 3.2.2017,
PW2 cross-examined on behalf of the counsel for A2 and PW2 admitted that at the time of Ex.P5 proceedings conducted at the office of Dy.Superintendent of Police, the complicity of AO2 is not there and in the copy of the complaint, there is no mention about the A2 herein. Infact PW2 did not verify any documents in the GP towards house tax property tax, water tax etc., pertaining to the house of PW1. It is specifically elicited from
PW2 that *….it is true when we entered along with the trap party to the room of AO1, AO2 is not present.
*….I have participated in the ACB trap case for the first time with the guidance of ACB officials.
*…. I have drafted the panchanama even though I have no experience.
28.Admittedly another mediator is not examined on behalf of the prosecution. So far as relevancy and admissibility of the evidence of PW2 is to be taken into consideration while appreciating the evidence of investigation officer also, but in this case the main Investigation Officer who actually conducted trap has not been examined by the prosecution as he is no 26 more. The other witnesses examined on behalf of the prosecution such as PW3-Aleti Thirupathi Reddy and PW4-
Gudugu Yellaiah, PW-Surender are circumstantial witnesses and whereas PW6-B.Rajamani is no other than wife of PW1. PW3 is the then Panchayat Secretary, GP, Bhiknoor has deposed that at 12.00 Noon, Pw1 came to the office of GP and went to the room of AO1 and later PW1 went outside, immediately ACB officials rushed into our office room of AO1 and apprehended him and conducted chemical test to hand fingers of AO1 and
AO2. ACB officials seized Rs.2000/- from the table drawer of
AO1 and Rs.8000/- of the shirt pocket of AO2. He further stated that he came to know that AO1 and 2 were trapped for by the
ACB officials giving on the information given by Pw1. This witness identified Ex.P2 is the application of Pw1 dt. 18.6.2009 addressed to the Surpanch, GP, Bhiknoor, Similarly this witness
PW3 also identified ExP6 file No.143/2008 pertaining to Pw1.
ExP7 contains the inward entry of the application of Pw1 and in this connection police examined and recorded my statement the statement of PW3. PW3 was also subjected to cross- examination by the counsel for the AO and he stated in his cross-examination that he did not attended the file ExP6 with regard to the permission for construction of PW1. He also stated that he do not know the contents of the file relating to
Exs.P2,P3 in ExP6 and he do not know whether permission was granted or not. He also stated that he do not have idea that 27 whether Nagabhushan Rao, sarpanch, Mohan Reddy,
Upasarpanch, and Moche Satyaranaraya, visited the vacant land of PW1 or not for the purpose of inspection. He further stated that when ACB officials entered into the office of GP, he came out from the room and then only he came to know that the ACB officials caught hold AO1 but he can not say who were the officers visiting the office room of the Executive Officer while sitting in his room on that day.
29.So also PW4-G.Yellaiah, who is Bill Collector in the office of
GP has deposed in his evidence that on 10.9.2008 he along with AO1, AO2, Pw3 and Lw7 inspected the site of Pw1 who applied for building permission. On 31.10.2008 he observed
Pw1 came to the office went to the chambers of AO1 and went outside. Immediately ACB officials rushed into the room of AO1 and apprehended AO1 and AO2 who was also in the office room of AO1 and seized Rs.2000/- from Ao1 and Rs.8000/- from AO2.
On enquiry he came to know that they have taken bribe from
Pw1 for granting permission for construction of the house vide file No.143/2008.
30.Similarly, one V.Surender is examined as pW5 who is working as a Watchman in the Office of GP and he also deposed similar to PW4. Both Pws 4 and 5 are cross examined by the defence counsel for AO1 and it is elicited from PW4 that his 28 room is situated separately and the room of AO1 not visible to him but he has seen Siddi Ramulu/PW1 going out of the room of
AO1 and then ACB officials entered. After arrival of ACB officials and while apprehending AO12 and questioned him, then only both AO1 and AO2 came out from the office. Therefore evidence of Pws 3,4,5 is pertaining tot eh raid/trap conducted by the ACB officials, but none of them witnessed that AO1 or AO2 received bribe amount from PW1. However, it is admitted fact by Pws 3 to 5 that the sanction permission file pertaining to
PW1 is pending in the office of the Gram Panchayat vide File No.
143/2008.
31.PW6-B.Rajamani, wife of PW1 has deposed in her evidence that her husband PW1 applied for permission for the construction of house and GP officials visited her house and one person informed that the plan was ready and asked her husband to come to the office to collect it. She also deposed that she asked her husband about the permission and he replied no permission was granted so far. So that her husband went to Gram panchayath office along with Rs.10,000/-. In cross examination PW6 stated that she do not know the documents pertaining to the house construction, she did not visit the GP office personally at any time and she do not know any knowledge about the demand and acceptance of the bribe amount by AO1 and AO2 from her husband PW1. She came to 29 know all these through her husband only. Therefore, the evidence of PW6 is of nominal importance and there is no incriminating circumstances from the testimony of PW6 as against AO1 or AO2.
32.Next considering the evidence of PW8-P.Rama Rao, who is examined on behalf of Dy.Commissioner of Panchayat Raj and
Rural Employment, Hyderabad has deposed with regard to the sanction accorded for prosecution of the accused, has deposed in his evidence that on 1.11.2008 radio message was received from Director General, Anti Corruption Bureau, Hyderabad, about the trap of AO1 on that our office issued instructions to
Dist. Collector, Nizamabad to keep AO1 under suspension.
Accordingly AO1 was kept on suspension on 6.11.2008.
Subsequently, the commissioner P&R and R.E issued a memo on 21.1.2009 for modification of orders, basing on that the then
District collector, Nizamabad issued modification orders on 4.2.2009 for suspension of AO1 and subsequently on 15.11.2008 their office received preliminary report from Director
General, ACB, Hyderabad along with copies of FIR, Complaint, mediators report I and II. On 8.9.2009 their office received final report sent by Director General, ACB, Hyderabad through the
Prl. Secretary to Govt. later, the commissioner of PR & RE,
Hyderabad Sri K. Chandramouli issued sanction proceedings vide Proceedings .No.15665/CPR/E2/2008, dt.20.10.2009. ExP17 30 is the proceedings issued by Sri K. Chandramouli, Commissioner of PR & RE, Hyderabad. PW8 stated that he can identify the signature of Sri Chandramouli, Commissioner of PR & RE,
Hyderabad. In the cross-examination it is pointed out and elicited from PW8 that *….It is true that AO1 was appointed as a Clerk cum bill
Collector later he was promoted as Panchayat Secretary (Executive officer). At Dist. Level AO1 is under the purview of Dist. Collector.
*….“It is true I was not shown the sanction proceedings issued “by Dist. Collector and one Shankar Reddy non IAS cadre Addl. Commissioner has seen the file and put initials on the papers. I did not work under Sri Shankar Reddy.”
33.Whereas PW8 denied the suggestions of the defence counsel including the suggestion that the sanction order under
Ex.P17 was issued by the Commissioner PR&RE is not competent to issue as AO1 is under the control of District
Collector, but PW8 denied the suggestions.
34.Another crucial witness examined by the prosecution is
PW7-S.Srinivasa Rao, the then Sub Inspector of Police, PS.
Nizamabad I Town and he deposed that on 21.8.2009 at 20.30 hours he received complaint from Lw13 K. Seetharamulu,
Inspector, ACB, Nizamabad herein and lodged a report in writing 31 under Ex.P14 copy of complaint and registered the case in
Cr.No.268/2009 u/s.379 IPC. He also marked ExP15 copy of
FIR. He further deposed that he took up investigation and examined Inspector Seetharamulu-PW10 and visited scene of offence at bus stand, Nizamabad and then he alerted the police in the Town with regard to occurrence and securing the staff and other suspects and thoroughly investigated, but of no use and no evidence or no clues available to apprehend the suspect or the person who stolen the rexine bag from the possession of PW10. Consequently, a final report was filed
before the Court under Ex.P16. In the cross examination PW7
stated that as per the contents of Ex.P14, the complainant (PW10) was carrying case properties in 3 cases to the court of
Prl. Spl. Judge's court for trial of SPE & ACB cases, Hyderabad.
The complainant therein, stated that as there is no place in the
Court returned Form 66 with an endorsement to that effect. It is also further elicited that PW7 orally instructed bank authorities to keep a watch on the said currency notes but did not give the same in writing. Further, PW10 has not furnished any supporting evidence to show that he was carrying property consisting of currency notes. As already discussed above, the case property pertaining to this case more particularly, the tainted cash of Rs.10,000/- was stolen away by unknown persons at Nizamabad bus stand and consequently same was not deposited before the Court and furthermore as per the 32 evidence of PW6 and PW10, as per the contentions of prosecution, it is established that the currency notes mentioned in Ex.P5, Mediator Report-I and Ex.P12 Mediator Report-II, are beyond recovery and consequently they are not marked and consequently MOs1 to 11 clinchingly establishes the prosecution case and as such the accused is liable for demand and acceptance of the bribe.
35.Having regard to the above facts and circumstances of the case, taking into consideration the written statement of the accused and also oral submission of prosecution and counsel for the AO1, I have also gone through the evidence of Investigation
Officers i.e., PW9 Laxminarayana and PW10.K.Seetharamulu and
PW11-K.Saidulu who filed charge sheet, according to PW10, he gave evidence on behalf of N.S.Karunanidhi-LW11 who conducted trap proceedings under MR-I and MR-II on 31.10.2008. Since PW10 also participated in the trap along with
LW11, his evidence is in corroboration to the evidence of PW1 and Pw2 in respect of Mediator Report-I and Mediator Report-II marked as Ex.P5 and P12 respectively.
36.PW9 has been cross-examined by the Learned defence counsel and as per the line of defence, the case of AO1 is of total denial. However, the Learned counsel for AO1 has elicited 33 certain facts from PW9 in the cross examination. For instance, it is stated by PW9 *… I did not prepare Sodium Carbonate Solution as per the directions of Dy.Superintendent of Police Karunanidhi.
*…. I did not bring glass tumblers for conducting chemical test. There was no search conducted by Dy.Superintendent of Police Karunanidhi for locating the bribe amount.
Witness adds that the accused No.1 & 2 themselves produced the tainted amount before the
Dy.Superintendent of Police. The post trap proceedings were hand written.
*…. I do not remember the name of the mediator who scribed the post trap proceedings.
*…. I was not shown the tainted amount before the Court.
*…. I do not prepare any notes regarding interactions between PW1, Dy.Superintendent of Police and AO1.
*…. It is true after seeing the post trap panchanama I gave my chief examination.
37.In re-examination by prosecution, PW9 stated that while giving evidence in chief, he has gone through panchanama and deposed evidence.
38.So also PW10 has deposed about the fact that after the trap Dy.Superintendent of Police N.S.Karunanidhi-LW11 34 instructed to him and during the course of investigation he secured the presence of Pw4,PW5, PW6 and PW7 and recorded their statements as circumstantial witnesses. Later he handed over the CD file tot he Inspector of Police, K.Saidulu to file charge sheet. After the trap Dy.Superintendent of Police entrusted the tainted amount of Rs.10,000/- with instructions to deposit the same in the Court at Hyderabad and while so on 11.8.2009 while going to Hyderabad to deposit the case property in the Court of Prl.Spl.Judge for trial of SPE and ACB cases at Hyderabad pertaining to three cases vide Cr.No. 4/ACB-
NZB/2009, Cr.No.22/ACB-NZB/2008 and Cr.No.24/ACB-NZB/2008 but the court has not taken the case property due to lack of place in the strong room as such on 21.8.2009 in order to deposit the above said case properties into the court, he returned to Nizamabad by 5.30 PM and noticed that the case property in Cr.No.22/ACB-NZB/2008 pertaining to the present case on hand i.e., Rs.10,000 (1000 X 10), which was put in a rexine bag and sum other xerox papers are found missing. So that he approached I town police station, Nizamabad and lodged report under ExP14 is attested copy of complaint and
Police issued FIR-ExP15 registered case in Cr.No.268/2009
U/s.379 IPC. Accordingly, it is the case of the prosecution the case property/currency notes of Rs.10,000/- tainted amount allegedly seized from AO1 and AO2, were found committed 35 theft and beyond recovery, so that a final report is also filed under Ex.P6.
39.However PW10 is cross examined by the Learned defence counsel and he elicited from him that *…. It is true I did not examine officials of the office of the
AO1 during my discrete enquiries.
However other suggestions relating to trap proceedings, examination of witnesses are denied by PW10.
40.Whereas PW11 K.Saidulu, the then Inspector of Police, ACB who took charge of the case from PW10 has verified the CD file and filed charge sheet against AO1 and AO2 he also deposed that ExP19 is abstract of Incoming and outgoing calls pertaining to cell number 9490815733 belongs to Pw1. In the cross-examination Pw11 stated that “it is true ExP19 is not certified under 65B of Indian Evidence Act.” Admittedly, PW11 has not participated in trap proceedings and he has not taken part in the investigation along with PW9, PW10 and LW11
Karuninidhi, Dy.Superintendent of Police. But after verification of the record, basing on the sanction proceedings, he filed charge sheet against the accused herein. Evidence of
Investigation Officers Pws 9 to 11 is to be taken into consideration basing on over all facts and circumstances of the 36 case and the evidence of Pws 1 and 2 as well as relevancy of the evidence of Pws 3 to 5.
41.Looking into the facts and circumstances of the case and the evidence let in by the prosecution through Pws 1 to 11 and
Ex.P1 to P19 as well as material objects, I have gone through the case law relied on by the prosecution as well as the defence, with reference to their written arguments, the Learned Spl.Public
Prosecutor appearing on behalf of the State, has submitted written arguments, by incorporating the depositions of the witnesses, facts of the case and also incorporated the case law relied on by her and vehemently contended that evidence of
PW1 against AO1 may be taken into consideration and the prosecution case is proved from the testimony of Pws 1 and 2 an
PW9 and also PW10 and contended that th demand and acceptance of the bribe amount by AO1 is established from
Ex.P1 and also Ex.P6 to P11 and the evidence of PW1 is also in corroboration with the testimony of PW2. The presence of AO1 and AO2 at the scene of offence is also proved from the evidence of PW4 to PW6 and recovery of tainted amount by ACB officials from the possession of AO1 and AO2 also established.
In fact, the property of tainted amount is not marked is no ground to reject the prosecution case. According to Learned
Spl.Public Prosecutor the chemical test conducted and yielded positive result itself is sufficient evidence to fasten criminal 37 liability against AO and absolutely there is no need of corroboration to the evidence of PW9 and PW2. Accordingly, the Learned Spl.Public Prosecutor filed voluminous written arguments by referring the case law/citations. Out of them the relevant case law is taken into consideration which are mentioned here under.
1) In Chaturdas Bhagwandas Patel Vs. State of Gujrat Supreme
Court of India Chaturdas Bhagwandas Patel vs The State Of Gujarat on 16 April, 1976 Equivalent citations: AIR 1976 SC 1497, 1976 CriLJ 1180, (1976) 0 GLR 804, (1976) 3 SCC 46, 1976 3 SCR 1052 wherein it was held “ to fill up a person it is enough that if a public servant induces a belief that he would render assistance to the given and the giver gives the gratification under that belief. “
2) In between Chaitnaya Prakash Audichya Vs. CBI in(2016) 1
SCC (Cri) 186 wherein it is held
Public accountability – Vigilance – P.C.Act, 1988 –
Section 7,13(1)(d) r/w 13(2) and Section 20 of
P.C.Act, 1988 – illegal gratification – demand and acceptance of – fully established – testimonies of complainant and punch witness – completely consistent – tainted currency notes – recovered from person of accused – phenolphthalein invocable u/s.20 of P.C.Act, 1988 – stood unrebutted – Conviction confirmed.
3) InAjit Kumar Vasantlal Zaveri Vs. State of Gujarat 1992 AIR (SC)-)-2064=1993-SCC Suppl-482, in this decision it was held, though main
Investigation Officer, has not been examined, the 38 evidence given by other officers, who accompanied the main Investigation Officer, can be relied by the prosecution to prove the trap incident.
In this case PW7 is the accompanied Officer to the
Dy.Superintendent of Police (Trap Laying Officer).
4) In M. Narsinga Rao Vs. State of A.P. reported in 2001 (1)
ALD (Crl.) 407 (SC) wherein it was held
I) P.C. Act 1988 – Section 20 (1) – Presumption under when the gratification is found accepted by the Accused, a legal presumption can be drawn that such gratification was accepted as a renewal for doing public duty - It is a compulsory presumption – Presumption U/s. 114 of evidence
Act – Can also be drawn.
II) Evidence Act, 1872 –Sections 4 and 114 – P.C.
Act 1988, Section 20 (1) – “Factual presumption” and legal presumption” – Explained.
III) Evidence Act, 1872 – Section 3 – work “proved”- explained.
5) In State of Andhra Pradesh Vs. V.Vasudeva Rao reported in
AIR 2004 (SC)-0-960, 2004-SCC-9-3-19 wherein it was held “ (i) Prevention of Corruption Act, 1947 – Section 5 (2) r/w 5(1)(d) - Indian Penal Code, 1860 –
Section 161 – Evidence Act, 1872 – Section 4 –
Accepting illegal gratification – No explanation offered for presence of phenolphthalein powder –
However, High Court acquitted accused holding that prosecution has failed to prove demand and acceptance of money by the accused – Whether approach of the High Court is justified – (NO) – when receipt of money was admitted it was for accused to prove as to how the presumption u/s. 4 39 of the Act is not available – Accused convicted of offence u/s. 161 IPC and Section 5(2) r/w (1)(d) of the Act of 1947.
6) In Hazari lal Vs Delhi Administration reported in AIR 1980 SC 873 wherein it was held “The Hon’ble Supreme Court held that raised presumption u/s 114 (a) of Indian Evidence Act recovery notes from accused would raise presumption that the accused received the bribe amount. “
7) In Reparla Venkata Gopala Ratnam Vs State of A.P. reported in 2014 (1) ALD Crl 434 wherein it was held “The Hon’ble High court of AP held that the prosecution need not be proved by direct evidence.”
8) In between State of A.P. Vs. K.China Swamy reported in (2016) 2 SCC (Cri) 355 wherein it was held.
Public Accountability, Vigilance and
Prevention of Corruption – Prevention of
Corruption Act, 1988 – Ss 7 and 13(2) r/w 13(1)(d)(ii) – Illegal gratification –
Respondent, Assistant Commercial Tax
Officer demanded bribe for issuing registration certificate for PW-1' Kirana &
General Stores – A trap was laid and he was caught red handed with bribe money –
Conviction restored.
42. Trial Court convicted respondent under
Ss 7, 13(1)(d) r/w 13(2) of P.C.Act – high
Court set aside conviction on basis that 40 the phenolphthalein powder was also on the day book which the respondent had signed, and that normal practice is to receive money with right hand whereas the respondent had allegedly received the amount with his left hand.
43. Held, it was never the contention of accused that the daybook itself had traces of phenolphthalein powder – It was so contended the IO could immediately have subjected the daybook itself to appropriate test – The other contention that a person would not normally receive money by his left hand, again has no basis – Respondent – accused accepted Rs.400 only out of
Rs.500 offered by PW1 as per demand and instructed that Rs.100/- be given to
V, which would negate the theory of any accidental touching of tainted notes –
This part of the case and aspects concerning demand and acceptance completely stood proved – Conclusions of the High Court cannot be even be termed as possible view in the matter –
Appeal Allowed.
9) In D.Velayutham Vs. State Represented by Inspector of
Police, Salem Town, Chennai in (2016) 1 SCC (Cri) 105 wherein it is held
Criminal Trial – Witnesses – Trap witnesses – not to be treated on par with 41 accomplice/particeps criminis/ - Trap witnesses is on a higher pedestal –
Corroboration is not mandatory in case of trap witness.
44. Keeping in view the submission of the Learned Spl.Public
Prosecutor, with reference to the evidence on record, I have also taken into consideration the oral submissions of Learned
Counsel for AO1 and also written statement submitted by the accused No.1 as well as the written arguments filed by Learned counsel for the accused also placed reliance of case law which may be summarized as here under.
i. P.Parasurami Reedy vs State Of A.P(2011)12 SCC
294
10. This was rather strange. Learned counsel appearing for the State very heavily relied on that circumstance. That circumstance by itself may not be able to establish that money was demanded and it was accepted as bribe. It could have been the possibility that the complainant had touched the currency notes and had shaken hand with the accused or it could be that any one of the investigating officer or the member of the raiding party had touched the fingers of the accused. That circumstance itself cannot be ruled out.
11. We have seen the judgments of the courts below wherein the sole evidence of the fingers being soiled in sodium carbonate turned pink has been relied upon. Both the courts below seem to have impressed by this 42 situation alone. We do not feel it sufficient to convict the accused on this evidence alone and we would choose to give him the benefit of doubt.
ii. P. Sirajuddin Etc vs State Of Madras Etc... AIR 1971 SC
520
Before a public servant, whatever be his status,
is publicly charged with acts, of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti-Corruption
Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be 43 impeccable.Inordinarydepartmental proceedings against a Government servant charged with delinquency, the normal practice
before the issue of a charge sheet is for some
one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charged sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to -find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.
iii. A. Subair vs State Of Kerala (2010 (1) ALD (Crl) 497 (SC);-
It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.
44
22. Sub-Section (3) is a "non-obstante clause". It provides that where the gratification is trivial and the Court is of opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in sub-
Sections (1) and (2). In other words, the Court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial.
In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs. 25/- only. In our view, the High Court was not justified in drawing the presumption under Section 20 and holding that offence punishable under Section 7 of the Act was proved.
iv.In Sadashiv Mahadeo Yavaluje & ... vs The State Of
Maharashtra : AIR 1990 SC 287,
Judgment of Hon'ble Apex Court reported in
Sadashiv Mahadeo Yavaluje and anr..Vs..The
State of Maharashtra (supra) is on Section (5)(1)
(d) and (2) of Prevention of Corruption Act 1947.
The Hon'ble Apex Court there has found that evidence of complainant and Cri. Apl. 408-05-
Judgment 8/11 trap witness did not establish that ingredients were satisfied. Facts there show that accused No.1 in the said matter had instructed complainant to pay Rs.100/- to accused No.2. On two occasions it was not paid to accused No.2. However, after some time amount was paid to accused No.2 and complainant alleged that it was to be paid to accused No.1. Accused persons were convicted and their conviction was maintained by High
Court. Hon'ble Apex Court found that 45 apprehending accused No.2 in a trap revealed failure of trap against accused No.1. It is further observed that there was no evidence against accused No.1 except the story given out by complainant. As regards accused No.2, Hon'ble
Apex Court found that merely because he was entrusted with some money to be passed on the accused No.1, it could not be held that he was guilty of any one of the offences unless it was established that he was party to the alleged understanding arrived at between complainant and accused No.1. Hon'ble Apex Court also found that arrangement if any was between accused No.1 and complainant and accused
No.2 was not party to it.
V. In B.Jayaraj vs State Of A.P (2014 lAWsUIT (sc) 217
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the
Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under
Section 20 can be drawn are wholly absent.
46
VI.In State Of U.P. vs Ram Asrey : 1990 (1) Crimes 609 SC
The appellate Court has given the following reasons for allowing the appeal of the respondent,they being:
1) There is no corroboration of the testimony of the complainant, Ambar Prasad regarding the demand of bribe by the respondent on 27.10.79.
2) The evidence adduced by the prosecution that even on 5.11.79, the respondent demanded the bribe from Ambar Prasad in the presence of other persons without taking any precaution is not convincing.
3) There is no acceptable reason as to why
Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on 5.11.79 with the vigilance party. 4) Though
Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-.
5) The application said to have been presented by Ambar Prasad is not found.
6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November. 5.
The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar
Prasad in expertise of his official function.
47
45. Having regard to the rival contentions of Learned
Spl.Public Prosecutor and defence counsel with reference to the case law relied on by both sides, before appreciating the same, it is to be stated that the requirement to prove charge u/s. 7 and 13(1)(d) r/w 13(2) of P.C.Act, it is well settled in law that the vital part of the case of the prosecution is not established however, can not be believed or not proved beyond doubt, the accused is entitled to benefit of doubt. As laid down in the present case, the demand and acceptance are required to be proved without any doubt and if any of them is not proved, being the vital part, the offence can not be said to have constituted and therefore it is clear that what is required to be proved to be determined is whether the prosecution has successfully established the case against the accused about the demand and acceptance. In the present case absolutely there is no any piece of evidence as against A2 who have allegedly taken part in the transaction in the alleged transaction between
PW1 and AO1.
46.With regard to the recovery of tainted amount/currency notes the Investigation officer who firstly conducted test against the accused and the currency notes were found on the table of the AO1 in the register and at that time currency notes are allegedly kept in the table drawer of AO1. The mediator (PW2) has also deposed that currency notes were handed over by AO1 48 on questioning by the Dy.Superintendent of Police. In this case unfortunately prosecution has not examined Trap Laying Officer i.e., the Dy.Superintendent of Police, Anti Corruption Bureau on the ground that he is no more. However, action taken by the
Dy.Superintendent of Police, Anti Corruption Bureau is stated by
PW9. Admittedly another mediator is not examined. Therefore the evidence of Pws 1 & 2 is crucial in the present case. Both
Pws 1 & 2 supported the prosecution case with regard to pre trap proceedings under Ex.P5/Mediator Report-I. So far as
Mediator Report-II is concerned, PW2, PW9 and PW10 are the witnesses. PWs9 and 10 are the police officers who assisted the Dy.Superintendent of Police, ACB-LW11. Therefore, except the evidence of PW2, there is no any other corroborative piece of evidence so far as recovery of Rs.2,000/- from AO1. It is also case of the prosecution that remaining amount of Rs.8,000/- was seized from the possession of AO2. It is to be noted that the chemical test conducted as against AO1, is only with regard to right hand yielded positive. But no such positive result yielded in respect of left hand. Therefore, AO1 may handled the currency notes of Rs.2,000/- from his table drawer or from the
Register.
47.Another important circumstance is that PW2 deposed in his evidence that the material objects produced before the
Court i.e., sealed bottle containing hand wash of AO1 and AO2 49 the colour appears to be colourless but whereas it is the case of the prosecution that the colour turned to pink. Therefore, the turning of the colour of the solution of the sodium carbonate in such circumstances, the colour of the hand wash of the accused is natural. Even it is considered, for the sake of argument, that the accused had made any demand for illegal gratification, from the evidence of Pws 1 and 2 as admitted in the cross-examination, it is not established beyond reasonable doubt that the AO1 has accepted the illegal gratification.
Furthermore, prosecution could not produce the tainted currency of Rs.10,000/- denomination of Rs.1000/- x 10) stating that the said currency notes were subjected to theft due to which a case was registered by the PW7, Sub Inspector of Police, P.S. I Town
Nizamabad. Prosecution also got marked copy of FIR as Ex.P14 and P15 which are photostat copies, not even certified copies.
However even if it is taken into consideration that the case property pertaining to this case i.e., the currency notes allegedly seized by the Trap Laying Officer on the date of trap. It is to be appreciated that the trap was laid on 31.10.2008. Whereas
PW10 K.Seetharamulu has reported to the Police Station,
Nizamabad I Town about theft of case property kept in rexine cover at Nizamabad bus stand on 21.8.2009 i.e., after lapse of nearly 10 months from the date of trap and recovery of tainted amount. Whereas PW7, the Investigation Officer of that case stated that the final report was filed as case as undetected on 50 29.3.2010. However, on depositing Mos 1 to 11, charge sheet has been filed and the Court has taken cognizance of the offence. Be it so, it is also clear from the prosecution witnesses
Pws 1 and 2 who have given contradictory statements regarding the place of finding of tainted currency notes. Thus it is doubtful that the recovery of currency notes were made from the physical possession of AO1. Regarding the turning of colour of the solution of Sodium carbonate into pink colour being washed the hand of accused into the said solution, it is stated by PW2 but after putting the currency notes by PW1 on the register the accused has taken up those notes and then he has taken only two notes of Rs.1,000/- each, is seems to be unreasonable and further handing over Rs.8,000/- to AO2 is doubtful. Therefore, the contention of the Learned Spl.Public
Prosecutor that though the case property i.e., the tainted currency notes not produced, the evidence of PW1 and recovery from the possession of AO1 and AO2 can be relied on and the explanation from the evidence of PW7 and PW10, is sufficient explanation. As a matter of fact, in the criminal trial, for the charge of the offence under prevention of Corruption Act, it is necessary for the prosecution to establish its case by cogent evidence that the currency notes/tainted amount was seized from the possession of the accused. The best evidence would have been, the seized materials are ought to have been produced during the trial and marked as material objects.
51
Though there is explanation from the prosecution as to failure of production of them, mere oral evidence of PW2 and PW9 and
Mediator Report II under Ex.P12 does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with stringent punishment under
Prevention of Corruption Act. Hence, the contention of Learned
Spl.Public Prosecutor is unsustainable. Therefore looking into overall evidence on record and in view of the admissions of PW1 with regard to his inconsistent statement given to the
Investigation officer u/s. 161 Cr.P.C and also the statement given
before the Magistrate u/s.164 Cr.P.C, creditworthiness of
testimony of PW1 is not reliable wholly as he failed to give specific date of demand made by AO1. Moreover PW1 has not stated that on which date he met the AO1 for the first time as he submitted the application in the Office of the Grampanchayat to the Sarpanch. So far as the case property is concerned and the reports prepared under Mediator Report I and II is concerned, since the tainted amount was subjected to theft and beyond recovery by the concerned police, I have gone through the material on record, the charge sheet and also property deposit form etc., and I noticed as here under:
According to the charge sheet filed by the PW11, there is no specific mention about the details of the trap and preparation of Mediator Report I under
Ex.P5 and it is stated in the charge sheet 52 “during the course of investigation Lw1 securedthepresenceoftwo
Government servants… as mediators.
After observing necessary formalities,
AO1 and AO2 trapped on 31.10.2008 at about 12.45 PM and the amount of
Rs.10,000/- was seized as tainted amount on 31.10.2008.
When it is the case of the prosecution that the amount of
Rs.10,000/- was found missing or subjected to theft in the transit as deposed by PW10, but there is no such mention in the charge sheet. Moreover a perusal of the record is very clear that in this case charge sheet was filed before the Prl.Spl.Judge for trial of
SPE & ACB Cases, Hyderabad and the cognizance was taken by the Court on 1.3.2011, but the remaining case property i.e., Mos 1 to 11 were deposited in the Court on 17.10.2012 vide CPR No.
15 of 2012 on the file of II Addl.Spl.Judge for trial of SPE & ACB
Cases, Hyderabad. Whereas PW10 deposed in his evidence that he lodged report with the Police Station I Town, Nizamabad on 21.8.2009. Under these circumstances, the contention of the prosecution that the case property could not be produced before the Court more particularly, the tainted amount because of theft committed by unknown person is no ground to accept the explanation from the side of prosecution.
The non production of the material case property i.e., tainted amount note numbers are mentioned in both Mediator Report I 53 and II, the accused herein lose his opportunity to cross-examine the witnesses with reference to the currency/tainted amount.
Moreover it is the case of the prosecution that only two currency notes of Rs.1,000/- each seized from the possession of AO1 and the rest of the currency allegedly seized from the possession of
AO2. Thus it is certainly prejudice to the case of the accused herein as he lost his opportunity to cross examine PW1 and other witnesses as to the tainted amount of currency.
Moreover so far as the sanction under Ex.P17 is concerned,
PW8 is not the competent witness to speak about the process of the sanction order as he stated specifically that he has not seen earlier sanction proceedings issued by the Dist.Collector and further he was not aware of the material placed before the
Commissioner Chandramouli and AO1 was appointed as Clerk- cum-bill Collector and and later he was promoted as Panchayat
Secretary(Executive Officer). At District level AO1 is under the purview of District Collector. Therefore, it is uncertain whether the Commissioner is competent authority to issue sanction order. Therefore, the sanction accorded under Ex.P17 itself is not sufficient to prove the guilt of the accused unless the demand and acceptance of the bribe/tainted amount is proved.
48.As already discussed above the main lacunae on the part of the prosecution is that whatsoever the reason may be the incriminating material i.e., the tainted currency is not placed 54
before the Court for the purpose of getting them marked as
incriminating evidence against AO1. In the absence of such important evidence it can not be held the accused is liable to be punished for the offences u/s. 7 and 13 (1)(d) r/w 13(2) of
P.C.Act. In view of the above factual matrix of the case presumption u/s. 20 of Prevention of Corruption Act, is not available to the prosecution. Where proof by the prosecution is beyond reasonable doubt touching the proof of the guilty of the accused, in the absence of discharge of such burden, the accused is entitled to acquittal. But a remote possibility in favour of the accused can not be made a ground for holding that there is absence of proof beyond reasonable doubt. The benefit of doubt to which accused is entitled, is reasonable doubt, the doubt which rational thinking men will reasonably,
honestly and conscientiously entertain and not the doubt of a
timid mind. Either mere possibilities nor remote probabilities nor mere doubts, which are not reasonable, can without danger to the administration of Justice. It is to be remembered that the benefit of doubt is to be used only when there is some evidence towards proof of the charge but a reasonable doubt lurks in the mind regarding its worth for being accepted as the foundation for the conclusion of the guilt. It is also to be noted that the sodium carbonate solution and sample bottles when confronted to PW2 he stated that they are colourless.
Therefore, the chemical test conducted in respect of sodium 55 carbonate solution by using phenolphthalein powder is also doubtful in the present case. Subsequently I hold that the accused is entitled to benefit of doubt for his complicity with the charge u/s. 7 and 13 (1)(d) r/w 13(2) of Prevention of Corruption
Act. For the foregoing reasons and findings, I come to conclusion that the accused is entitled to be acquitted on “benefit of doubt.”
49.In the result, accused herein is found not guilty for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of
Corruption Act, 1988 and he is acquitted u/s. 248(1) Cr.P.C.
The bail bonds of accused shall stand cancelled. The material objects MO1 to MO11 shall be destroyed, after expirey of appeal time.
Dictated to Stenographer Gr.I, transcribed by her,
corrected and pronounced by me in the Open Court on this the 6th day of August, 2019.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
56
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION:
PW1Bandi Sidhi Ramulu
PW2 A.Vinod Kumar, Sr.Asst., R&B Circle Office, Nizamabad District.
PW3A.Thirupathi, Jr.Asst., O/o Gram Panchayat, Bhiknoor
PW4 Godugu Yellaiah, Bill Collector, O/o Gram Panchayat, Bhiknoor
PW5Vorem Surender, Waterman of Gram Panchayat, Bhiknoor
PW6B. Rajamani
PW7S.Srinivas Rao, Sub Inspector of Police, Anti- corruption Bureau, Nizamabad Range.
PW8 P.Rama Rao, Commissioner, Panchayat Raj & Rural Employment, Urdu Hall Lane, Himayathnagar, Hyderabad.
PW9A.Laxminarayana, Inspector of Police, Anti-corruption Bureau, Nizamabad Range
PW10K.Seetharamulu, Inspector, Anti-corruption Bureau, Nizamabad Range, Nizamabad
PW11 K.Saidulu, Inspector of Police, Anti-corruption Bureau, Nizamabad Range, Nizamabad.
FOR THE DEFENCE - NONE -
57
DOCUMENTS EXHIBITED
FOR THE PROSECUTION
Ex.P129-10-2008Complaint given by PW1
Ex.P218-06-2008Application addressed to Sarpanch, EO, GP, Bhiknoor.
Ex.P3 Copy of the PLAN with two copies (3) sheets
Ex.P4 29-10-2008Attested xerox copy of complaint
Ex.P531-10-2008Pre trap proceedings
Ex.P6---Note Book (6) sheets
Ex.P7---Inward Register
Ex.P8---Attendance Register
Ex.P9---Movement Register
Ex.P10---Minites Register
Ex.P11---Pension Register
Ex.P1231-10-2008Post Trap Proceedings
Ex.P1331-10-2008Rough sketch of scene
Ex.P1421-08-2009Photostat copy of complaint W.No. 268/09
Ex.P1521-08-2009Photostat copy of RIR W.No. 268/09, Nizamabad
Ex.P1629-03-2010Copy of final report W.No. 268/09 I Form, Nizamabad
Ex.P1720-10-2009Sanction proceedings vide Procds.No.15665/CPR/E2/2008
Ex.P1831-10-2018First Information Report s
Ex.P1907-05-2009Incoming Calls and outgoing calls belongs to PW1 58
FOR THE DEFENCE
Ex.D122-11-2008 Portion of 164 Cr.P.C statement of PW1.
Ex.D222-11-2008 Portion of 164 Cr.P.C statement of PW1.
Ex.D3 22-11-2008 Portion of 164 Cr.P.C statement of PW1.
MATERIAL OBJECTS MARKED
MO1Sealed cover containing the sample powder of phenolphthalein powder used for the demonstration purpose during pre trap proceedings.
MO2Sealed cover containing the sample powder of sodium carbonate used for the demonstration purpose during pre trap proceedings.
MO3Sealed cover containing the sample powder of sodium carbonate used during post trap proceedings.
MO4Sealed bottle containing right hand wash of AO1
MO5 Sealed bottle containing left hand wash of AO1
MO6Sealed bottle containing right hand wash of AO2
MO7Sealed bottle containing left hand wash of AO2
MO8 Sealed bottle containing collected dust of phenolphthalein powder from the upper portion of daily movement register from the office of AO1.
MO9Sealed bottle containing collected dust of phenolphthalein powder from the upper portion of pension register from the office of AO1.
MO10 Sealed bottle containing resultant solution of inner flab of wearing shirt of AO2
MO11Wearing shirt of AO2.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
59
1
IN THE COURT OF THE SPL. JUDGE FOR TRIAL OF SPE & A.C.B
CASES : AT KARIMNAGAR.
PRESENT : SRI M.JOHNSON, Spl.Judge for trial of SPE & A.C.B Cases,
K A R I M N A G A R.
Dated this the 27 th day of September, 2019.
CALENDAR CASE No. 38 of 2015
Between:
The State through Inspector of Police, Anti- Corruption Bureau, Karimnagar Range, Karimnagar. … Complainant AND
Sri Bheema Krishna Murthy, Zonal Officer, Zone-V, A.P.Social Welfare Residential Educational Institutions Society, Warangal District.
...Accused Officer
This case is coming for final hearing on 19-9-2019 in the presence of Special Public Prosecutor for the state and of Sri B.Venkat Ratnam, Advocate for the Accused, 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.The Inspector of Police, Anti-Corruption Bureau,
Karimnagar Range, Karimnagar has filed the charge sheet in
Cr.No. 4/ACB-KNR/2009 against the above named accused
Officer to prosecute him for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988
2. The case of the prosecution in brief is that, at the time of alleged occurrence, the accused was working as Zonal Officer, 2
Zone-V, A.P.Social Welfare Residential Educational Institutions
Society, Warangal District and by virtue of post held by him, he comes under the category of public servant within the meaning of Sec.2(c) of Prevention of Corruption Act, 1988.
3.It is further stated that the defacto-complainant-Janga
Nagaraju-PW1 is resident of Jagtial and he was working as Head
Master, Upper Primary School, Nagireddypur (V), Gangadhara
Mandal and earlier he worked as Programme Officer in Andhra
Pradesh Social Welfare Residential Education Institutions Society (hereinafter called as APSWREIS) and at the same time he was also placed Incharge of Andhra Pradesh Social Welfare Long
Term Bridge Course Schools(APSWLTBCS), Girls, and he discharged his duties in such capacities from 16.1.2001 to 23.6.2003. Subsequently, while he was working as the
Programme Officer of APSWLTBCS (Girls), Godavarikhani he was placed incharge of the Principal of newly established A.P.Social welfare Residential School (Girls) Nandimedaram and while he was on Medical Leave one Seshidevi was posted as Programme
Officer to LTBCS, Godavarikhani in his place. Thereafter, an audit was conducted in the said Institutions and the audit staff found that PW1 has misappropriated funds to the tune of Rs.20
Lakhs at APSWLTBCS, Godavarikhani and Rs.1.34 Lakhs at
APSWRS(Girls), Nandimedaram respectively for which the criminal cases were registered against PW1 on the file of 3
P.S.Godavarikhani I Town and P.S.Dharmaram and PW1 is also attending the Court in those criminal cases.
4.While so, on 20.10.2008, the accused officer herein who was working as Zonal Officer at Warangal, called PW1 through one Prabhudas asking him to come to his residence and further informed showing the file received from Head Office stating that he received instructions from Head Office to send a report as against misappropriation of Government funds by PW1. It is further stated by PW1 in his report, that by showing the file, the accused officer has demanded Rs.One Lakh towards bribe to send a favourable report in favour of the PW1 and further threatened unless the amount demanded by him is given, he will send adverse report and he will see that PW1 will be sent to the Jail. But PW1 denied all such allegations of misappropriation of funds and requested the accused officer to help him, eventhough accused officer repeatedly demanded the bribe amount and harassed PW1 over the phone calls. However, PW1 approached AO at Warangal one or two times in the last week of
December and requested the accused officer what are the instructions he received from the Head Office and furnish a copy of it, but the accused officer without disclosing anything demanded the bribe amount even for furnishing the copy.
Finally, on 9.1.2009 accused officer informed PW1 to meet him at Suprabha Hotel, Nakkalagutta, Hanamkonda through his 4 office worker and accordingly PW1 met accused officer at
Suprabha Hotel, Nakkalagutta, Hanamkonda through his office worker and accordingly PW1 met accused officer at Suprabha
Hotel and at that time he told that he will slend report to the
Head Office within two or three days and furtehr demanded to bring the bribe amount, otherwise be ready to go to Jail.
Accordingly, accused officer has demaned the bribe amount of
Rs.One Lakhs and on further request of PW1 the accused officer did not agree to reduce the amount, so that in view of such demand made by accused officer, PW1 is unwilling to give any bribe to him, approached the aCB officials and lodged a report on 20.1.2009 under Ex.P1 to take necessary action against the accused officer. Tehrefore, on such report under Ex.P1, the
Dy.Superintendent of Police, ACB, Warangal Range who was holding Full Additional charge of Karimnagar range has registered the case in Cr.No. 4/ACB/KNR/2009 u/s.7 of Prevention of Corruption Act and issued FIR on 25.9.2009 under Ex.P8.
5.During the course of investigaiton, Dy.Superintendent of
Police, ACB-PW7-T.Janardhan, secured the presence of PW1 and also mediators i.e., PW2-Ch.Manoj Kumar and LW2-Md.Abdul
Khalique as mediators for the proposed action and the trap to be conducted as against the accused officer. On 21.1.2009, the instructions are given to PW1 and Mediator Report-I was prepared at the office of Dy.Superintendent of Police, ACB and 5
PW1 asked to bring tainted amount of Rs.20,000/- and the necessary formalities completed such as model test of phenolphthalein and Sodium Carbonate Solution was explained to PW1 as well as to the mediators while preparing Ex.P2-MR-I
Report. It is further stated that on 21.1.2009 at about 7.50 PM
PW1 was directed to go to Suprabha Hotel, Nakkalagutta,
Hanamkonda and once again instructed him to go to Suprabha
Hotel, Nakkalagutta and wait for arrival of accused officer and after his arrival pay him the tainted amount only on his demand, but not otherwise and he also directed him to give the pre arranged signal, if accused officer has accepted the amount.
Further, PW7 directed PW1 not to give shake hand to the accused officer prior to or after the demand and acceptance of the bribe amount. Accordingly, PW1 proceeded to the hotel,
Suprabha and waiting there for arrival of accused officer and meanwhile the trap party has taken vantage positions around the Hotel Suprabha and waiting for the signal. While so, at about 8.00 PM one Santro car bearing No. AP-13-L 6242 came near to the Pw1 and the accused officer was sitting in the car on the rear seat and asked PW1 to get into the car and PW1 also sat on the rear seat along with accused officer. While so, the car moved ahead towards head Post Office. Immediately the trap party has withdrawn their positions at Hotel Suprabha and followed Santro car, be it so, the car was stopped near the
Hospital of Dr.V.Ramesh, Skin Specialist and there the trap party 6 alighted from the vehicles and took vantage positions little away from the car nearby Lifeline Hospital. While, the trap party was waiting for the signal, they noticed that the driver of the car got down from the car, went towards Hospital. After few minutes
PW1 got down from the car and gave signal to the trap party by wiping his face with hand kerchief, noticing the same, the trap party immediately rushed to the car and on seeing the arrival of the trap party, the accused officer who sat in the back seat of the car throw away the amount in the Municipal drain which was by the side of the car. On seeing that, the trap party immediately rushed towards the drain the picked up the amount from the drain. In the meanwhile PW7 and the mediators reached the accused Officer and caught hold him.
Immediately, the Sodium Carbonate Solution test was conducted, then and there for both the hands of the accused officer and positive result yielded and also the chemical test was also conducted to the kerchief which was recovered from the accused officer from his right side pant pocket which came to the contact with the tainted currency and that was also yielded positive result. Thus PW7 seized the tainted amount of
Rs.20,000/- from the drainage along with hand kerchief in the presence of the mediators and the preserved the resulted solutions in separate glass bottles, used for the chemical test in the presence of same mediators. Further all the events are reduced into writing by way of Mediator Report II under Ex.P3 7 prepared by the mediators. Then PW7 arrested the accused officer on 21.1.2009 at about 11.50 PM and produced him before the Court on 22.1.2009 before the Presiding Officer of the
Court of the Prl.Spl.Judge for SPE & ACB cases Hyderabad and then PW7 handed over the investigation to PW8. Before that
PW7 got recorded the statements of PW1 and PW3 u/s.161
Cr.P.C. Subsequently, further investigation taken up by PW8 and who recorded the statements of other witnesses and obtained sanction from the Government vide G.O.Ms.No. 67 dt.
27.7.2010 and deposited the material objects before the Court and after conclusion of the investigation PW8 has filed charge sheet against the accused officer herein for the offences under section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
6.After filing the charge sheet the cognizance was taken by the then Spl.Judge for SPE & ACB Cases and registered the case as CC.No. 44 of 2010 and also complied the provisions u/s. 207
Cr.P.C., and accused was examined u/s. 239 Cr.P.C., by explaining the accusation levelled against him for which the accused officer denied the allegations and further pleaded not guilty and claimed to be tried.
7.It is to be noted, subsequently during the course of trial, the case has been transferred to this Court, and renumbered as 8
CC.No. 38 of 2015. However during the course of trial on behalf
of the prosecution, Pws 1 to 8 were examined and Ex.P1 to P12 were marked and also Mos 1 to 8 were marked.
8.After completion of prosecution evidence, accused was examined u/s. 313 Cr.P.C., by explaining the incriminating evidence on record to the accused in vernacular language for which the accused has denied the prosecution evidence and when opportunity is given the accused officer and his counsel reported no defence evidence on his behalf, but marked Ex.D1 to D4.
9. During the course of arguments, Learned Spl.Public
Prosecutor submitted his arguments at length and also filed case laws through memo, whereas, the Learned Counsel appearing on behalf of the accused officer, submitted his oral contentions, and he also filed certain citations along with memo.
10.Now, the point for determination is whether the prosecution is able to prove the charge u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against the accused beyond reasonable doubt?
11. In order to prove the charge against accused officer herein, the prosecution must prove the essential ingredients of 9 offence u/s. 7 r/w 13(1)(d) r/w 13(2) of Prevention of Corruption
Act, 1988, the following factors must be proved.
i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
Iii) for himself or for any other person.
iv) Such gratification was not a remuneration to which the accused was legally entitled.
v) The accused accepted such gratification as a motive or reward for:-
a) doing or forbearing to do an official act: or
b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions: or
c) rendering or attempting to render any service or disservice to some one with the
Central or any state Government or
Parliament or the Legislature of any State of with any local authority, Corporation or
Government company referred to in Sec. 2
Clause (c) or with any public servant whether named or otherwise.
For the offence u/s. 13(1)(d) the ingredients of this clause are
1) He should hold office as Public Servant.
2) He should obtain any valuable thing or pecuniary advantage for any person
3) Such obtaining of valuable thing or pecuniary advantage is without any public interest.
10
A reading of this provision would make it amply clear that all the three wings of clause
(d) of Sec.13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of word or (at the end of each sub clause). Thus under sec. 13(1)
(d)(i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under sec. 13(1)(d) of the
Prevention of Corruption Act, 1988. on the same reasoning “obtaining a valuable thing or pecuniary advantage merely by abusing official position “ as contemplated u/s.13(1)
(d)(ii) in itself would satisfy the ingredients of
Criminal misconduct under Sec. 13(1)(d)(i) of the Act, 1988.
12.Keeping in view, the above essential ingredients of the offence, I have gone through the evidence adduced by the prosecution. In all prosecution has examined Pws 1 to 8 and
Ex.P1 to P12 were marked and Mos 1 to 8 are marked.
13.Now coming to the evidence on record, before going to appreciate the evidence of material witesses i.e., PW1-Janga
Nagaraju, the defacto-complainant, PW2-Cheruku Manoj Kumar- mediator and also the official witneses PW7-T.Janaradhan, 11
Dy.Superintendent of Police, Warangal Range I/c. Karimnagar
Range and PW8-B.Chand Basha, Inspector of Police, Anti
Corruption Bureau, who laid the trap as against accused officer, it is to be appreciated that PW6-K.Rambabu, Superintendent of the Office of Secretary, APSWREIS is relevant to appreciate the fact that the role of the accused officer in genesis of this case.
PW6-Rambabu has deposed in his evidence that according to the special audit report, it was noticed that PW1 misappropriated a sum of Rs.20,16,301/- belongs to APSWLTBCR
School, Godavarikhani and also misappropriated a sum of
Rs.1,34,675/- in respect of APSWRPRP School, Nandimedaram and as such the Secretary of APSWREIS addressed letter to the
District Collector, Karimnagar to take appropriate action as against PW1 and also recover the misappropriated Government funds in accordance with the audit report. Prosecution got marked Ex.P10 Audit report, pertaining to alleged misappropriation, Ex.P11 is the Special Audit report of the accounts for the period from 15.12.2003 to 17.12.2003.
14.PW6 further deposed that consequent upon the misappropriation of Government funds by PW1, the criminal cases were also registered against him on the file of
Godavarikhani Police Station and Dharmaram Police Station and those criminal cases also pending before the Court at
Peddapally and at the Court of Godavarikhani. It is further 12 stated by PW6 that the Secretary of Social Welfare Department has addressed letter under Ex.P11 dt. 2.9.2008 vide R.C.No. CO- 1/Z-V/12345/LTBCR/GDK/2003, dt. 2.9.2008 directing the Zonal
Officer, Zone-V, APSWRIES, Hanamkonda, Warangal i.e., accused officer herein to pursue the matter and to take necessary steps for recovery of huge amounts of misappropriated funds by PW1 and also inform the latest progress of the criminal cases registered and pending against
PW1. Further, directed AO to report the compliance by 10.9.2008. Therefore, this witness PW6 is not a direct witness to the charge framed against accused officer herein. He is a circumstantial witness to show that accused officer was directed by the his superior i.e., Secretary of APSWREIS to take necessary steps to recover the huge amount of misappropriated amount from PW1.
This witness PW6 has been cross examined by the counsel
for accused officer and it is elicited from him that “it is true PW1
belongs to Education Department and the competent disciplinary authority is Director of Education. It is true as per
Ex.P7, the Secretary requested the District Collector,
Karimnagar to book criminal cases against PW1 and also for initiation of recovery of huge misappropriated Govt.funds during his service as Programme Officer.” PW6 also admitted that Ex.D1 is the Proceedings issued by the Secretary dt.
5.2.2004 and also admitted Ex.D2 letter dt.29.12.2006 13 addressed to the Director of School Education requesting to take steps for initiation recovery of huge misappropriated funds by
PW1 while he was working as Programme Officer at LTBCS
School, Godavarikhani and as Incharge Principal at APSWRS
School at Nandimedaram who is presently working at Upper
Primary School, Nagireddypur of Gangadhara Mandal of
Karimnagar District. Further PW6 admitted that the action initiated against PW1 for recovery of Rs.21,50,076.25 Ps found as misappropriated by PW1 in the audit.
15.Whereas, PW3-R.Ravi Kiran, the driver of the accused officer examined and he deposed that he is an Electrician and he never worked as driver of AO at any point of time and in the year 2009 at about evening time he saw accused officer at
Ramesh Hospital where some people gathered as mob and further noticed two or three persons pulling the accused officer holding his hands and on enquiry he came to know that ACB
Police caught hold him and he was not examined by any of ACB
Police, but he came to know accused officer was trapped by ACB officials on accepting bribe. The Learned Spl.Public Prosecutor declared PW3 as hostile and after seeking permission of the
Court cross examined him with reference to the previous statement given during the course of investigation. But when it is suggested to PW3 that he worked as driver that accused officer and on the date of trap he himself drove the car upto 14
Ramesh Hospital where accused officer was caught hold by the
ACB officials, but PW3 denied all the suggestions. And also denied the contents of Ex.P5 statement given to the police.
However, in cross-examination by the counsel for the accused officer PW3 has stated that on that day accused officer has shouted with loud voice against the persons who caught hold him and also those persons caught hold palms of accused officer tightly and he was trying to free himself from the hands of those persons and no amount was recovered at the spot where accused officer was caught hold. It is the contention of the
Learned defence counsel that PW3 has not supported the version of prosecution and the evidence of PW6 is relating to addressing letters by the Secretary, APSWREIS to the
Dist.Collector as well as the accused officer in relation to the misappropriation of funds and recovery thereof from the defacto-complainant/PW1. Therefore, the entire version of PW1 has to be scrutinized carefully and the evidence of the
Investigation Officer should also be scrutinized with care and caution.
16.Coming to the evidence of PW4-M.Mallesham, Part Time
Sweeper, who is resident of Nagireddypur village and he is examined by prosecution to prove the mobile SIM Card of PW1 was taken by PW1 from PW4. PW4 stated that on questioning
ACB officials he disclosed that the SIM Card bearing Mobile No.
15 9490733151 is belongs to him and he is also having another SIM
Card 9441440737 which is being used by the family members whereas the Mobile SIM Card No.9490733151 is a BSNL network, and it is a prepaid package and he gave that SIM Card to PW1 for his use. Admittedly PW4 is having no documentary proof to show that the Mobile SIM Card No. 9490733151 is standing in his name. It is pertinent to mention here the Investigation
Officer has collected call data detail from the network provider to show mobile call transactions between the Mobile phone of accused officer bearing No. 9949348886 and there is conversations between PW1 and accused officer, during the relevant period, but no documentary evidence collected in respect of the mobile No. 9490733151 which is said to have been pertaining to PW4 and that was given to PW1 and he is using it. So in the absence of any documentary proof, the oral evidence of PW4 that SIM Card belongs to him can not be accepted as no call data record of that number is collected by
Investigation Officer.
17.Coming to the evidence of PW5-G.Srinivasulu, Section
Officer, TS, Secretariat, Hyderabad, has been examined by the prosecution to prove the sanction orders issued by the
Government under Ex.P6 and according to PW5, he deposed that on receipt of radio message on 23.1.2009, the accused officer was kept under suspension on 30.1.2009 and 16 subsequently, the ACB officials submitted the report through
Director General, ACB on 17.2.2009, and basing on the report including Mediator Report-I and Mediator Report II copy of FIR for sanction to prosecute the accused officer. The said file was placed before the then Secretary to the Government School
Education and Secretary after verifying the entire file issued sanction proceedings vide G.O.Ms.No. 67, dt. 27.7.2010 and the same is marked as Ex.P6 by PW5 who has identified the signature of the then Secretary Dr.Sambashiva Rao. This witness cross examined by Learned defence counsel and pointed out that even as per Ex.P6, PW1 has misappropriated
Government funds to the tune of Rs.20 Lakhs and Rs.1,34,000/- while he was working on deputation. Admittedly PW6 has no personal knowledge of issuance of Ex.P6 and he deposed evidence on behalf of Secretary of the Government. It is the contention of the defence counsel by way of cross examination of PW6, Ex.P6 sanction order issued in mechanical way without application of the mind as he admitted in the cross-examination that “it is true ACB officials had sent a draft of Exl.P6 and accordingly as per the draft sanction was accorded under
Ex.P6. Hence, Ex.P6 can not be treated as proper sanction for the prosecution of accused officer.”
18.However, coming to the evidence of crucial witnesses
PW1-Nagaraju, PW2-Ch.Manoj Kumar-mediator and also the Trap 17
Laying Officer PW7-T.Janardhan, Dy.Superintendent of Police,
ACB, Warangal who was full additional charge of
Dy.Superintendent of Police, ACB, Karimnagar and also PW8-
B.Chand Basha, the Investigation Officer who filed the charge sheet. The testimonies of all these witnesses are relating to the registration of the case, issuing FIR, conducting Mediator Report-
I under Ex.P2 before trap at the Office of Dy.Superintendent of
Police, Anti Corrupton Bureau and also preparations of Ex.P3
Mediator Report II after the trap. Therefore, it is necessary to look into their evidence simultaneously in chronological order.
PW1-Nagaraju, who lodged Ex.P1 report with the PW7 has deposed in his evidence that basically he was working as a teacher and became Head Master at Nagireddipur village in the
Upper Primary School and he was deputed to work as
Programme Officer in APSWREIS and he also placed incharge of
APSWLTBCS Girls, Nandimedaram of Dharmaram Mandal during 16.1.2001 to 23.6.2003. He also deposed that subsequently when audit was conducted, it was found by the audit
Authorities that the PW1 has committed some financial irregularities and also misappropriated the funds of the society by virtue of his position and consequently two criminal cases were also registered on the file of Police Station Godavarikhani I
Town and Dharmaram Police Station. He also further deposed that subsequently the regular Programme Officer Lingaiah was appointed and one Seshidevi was also posted in their respective 18 posts. Then he was repatriated to his parent department but audit was conducted during his absence while he was on medical leave. Subsequently, PW1 was prosecuted for the offences of misappropriation, while so on 27.10.2008, the newly appointed Zonal Officer i.e., accused officer herein was posted as Zonal Officer, Warangal and he has no prior acquaintance with him but the accused officer has deputed one of his subordinate by name Prabhudas and asked PW1 to meet the accused officer at Hanamkonda stating that the accused officer was appointed as Enquiry Officer about the criminal cases and submit the report to the Secretary, APSWREIS. It is also informed to him that the allegations against PW1 are serious nature and thereby accused officer has demanded Rs.One Lakh to send favourable report to the Secretary. But PW1 expressed his inability to pay such huge amount as he was in financial crisis and also facing criminal prosecution.
19. It is also stated by PW1 that the accused officer has contacted him through an unknown person and asked him to come to Warangal along with demanded amount. Therefore on receipt of the phone call on 19.1.2-009 from the accused officer through unknown person, he went and met accused officer at
Suprabha Hotel at Hanamkonda and on that day, the accused officer demanded him Rs.One Lakh towards bribe amount for sending favourable report. Accordingly accused officer has 19 demanded and threatened him to bring the bribe amount otherwise he will send adverse report within two days, but PW1 is unwilling to give the bribe amount, he approached Office of the ACB on 20.1.2009 and lodged report under Ex.P1 and then
Dy.Superintendent of Police, ACB asked him to come on the next day i.e., 21.1.2009 after registration of the case and issuing FIR under Ex.P8. MR-I Proceedings are conducted on 21.1.2009 and also the demonstration of chemical test was conducted by explaining the significance and the purpose. Then as per the instructions of the Dy.Superintendent of Police, ACB/PW7, he gave Rs.20,000/- as advance amount proposed to be given and the same is treated as tainted amount and after application of the phenolphthalein powder through a constable, as per the instructions of Dy.Superintendent of Police, PW1 kept that wad of currency notes in his pocket and by the time the currency note numbers are also incorporated under MR-I under Ex.P2.
Thereafter, they proceeded to Suprabha Hotel on 21.1.2009 and Dy.Superintendent of Police instructed him to give tainted amount to the accused officer if he demanded and also further instructed not to give shake hand to the accused officer before and after acceptance of amount. In evidence in chief PW1 specifically stated “there was no panchanama drafted in the
ACB office.”. (At Page.No.4). However, PW1 further deposed that accused officer asked him to come to Suprabha hotel at 3.00 PM on 21.1.2009 and he went there about 5.30 PM to 20
Suprabha Hotel on his two wheeler and by the time
Dy.Superintendent of Police, constables, Inspectors, Panchas came there in a separate vehicle at 7.40 PM and PW1 waiting for arrival of the accused officer at Suprabha Hotel near Mirchi bandi and the trap party was waiting there nearby Suprabha
Hotel and meanwhile accused officer again called him and enquired whereabouts and he replied him that he came along and present at Suprabha Hotel and after some time accused officer came in car driven by driver and stopped car in front of
PW1 and asked him to board into the car and accordingly PW1 boarded the car and sat aside the accused officer and then car proceeded towards Ramesh skin Specialist Hospital. There accused officer was asked to stop car and asked the driver to bring coffee. When the driver went to bring coffee, the accused officer asked about the bribe amount then PW1 has given
Rs.20,000/- to the accused officer and requested him to co- operate and send favourable report saying that the remaining amount will be given later. Then, after taking the amount by his right hand, the accused officer has kept the amount in right side pant pocket. And this was happened in the car and immediately accused officer told him that he will send a favourable report and asked to arrange the balance amount within a week. Then, after getting down from the car, PW1 has given pre arranged signal to the trap party which is visible to him, then the trap party rushed to the place and brought the 21 accused officer from the car, then accused officer was taken to the office of AO and PW1 also accompanied with them and there a constable asked him to wait outside the office and after one hour he was called inside office and his version was recorded by the Dy.Superintendent of Police.
20.PW2-mediator-Ch.Manoj Kumar also deposed about the facts relating to Mediator Report-I and the said report was prepared at the office of Dy.Superintendent of Police, Anti
Corruption Bureau, Warangal and he acted as mediator along with LW2-Mohd.Abdul Khalique. PW2 supported the version of prosecution and deposed similar to PW1 regarding the verification of contents of the complaint of PW1, noting down of the currency note numbers brought by PW1 and phenolphthalein test that was administered by PW7 and the preparation of pre trap proceedings under Ex.P2. Therefore the evidence of PW1 and PW2 is in corroboration with each other so far as the pre trap proceedings conducted in the office of the
Dy.Superintendent of Police, ACB, Warangal on 21.1.2009 between 6.30 PM to 7.30 PM. At the same time it is to be noted that according to evidence of Pws 1 and 2, after arrival of the accused officer, the trap party followed Pw1 and AO who are travelling in the car from Suprabha Hotel to Dr.Ramesh, Skin
Hospital.
22
21.It is the version of PW1 and the story of prosecution that in the car PW1 has handed over the tainted amount of Rs.20,000/- to the accused officer and after getting down PW1 from the car he has given pre arranged signal by wiping his face with hand kerchief and immediately the trap party approached the car to apprehended the accused officer and it is also the case of prosecution that on seeing the ACB officials, the accused officer has thrown away the tainted amount into the drainage by the side of the car. As such the trap party has recovered that amount from the drainage and caught hold the accused officer and also removed his hand kerchief from the pocket and took him to the Office of APSWREIS i.e., Zonal Office situated at
Ramnagar, Hanamkonda. Therefore, as per the version of
PWs1,PW2, PW7 as well as PW8, Ex.P3 mediator report was prepared at Zonal Office of the accused, not but then and there where the accused was caught hold and from where the tainted cash was recovered from the drainage. PW7 also deposed the same facts in the similar lines as deposed by PW1 and 2. So far as the evidence of PW8 is concerned, his testimony is relating to his participation in the trap proceedings and further investigation by way of recording statements of PW3 to 6 and filing of the charge sheet against the accused officer after obtaining the sanction from the Government. Therefore, it is not necessary to reproduce the evidence in chief of PW7 and 8, but 23 at the same time it is necessary to look into the evidence in cross examination of these witnesses PWs1,2,PW7 and PW8.
22.In the cross examination of PW1, it is elicited from him that he was deputed to work as Programme Officer at APSWREIS and at the same time he was also placed Incharge of Andhra
Pradesh Social Welfare Long Term Bridge Course
Schools(APSWLTBCS), Girls, and he discharged his duties in such capacities from 16.1.2001 to 23.6.2003 and the audit was conducted from 15.12.2003 to 17.12.2003 and the Special audit report submitted against him by finding fault on the part of PW1 on the allegations of misappropriation of huge amounts such as
Rs.20,16,301/- at Godavarikhani and Rs.1,34,675/- at
Nandimedaram School and admittedly the charge sheets filed against PW1 in two different Courts at Godavarikhani and
Peddapally and he was facing prosecution in those cases. It is also elicited from him, in the departmental enquiry, it was found misconduct on the part of the PW1and recommended for recovery of misappropriated amounts while he worked on deputation in APSWREIS and APSLBTS.
23.It is also further elicited from him that the then Zonal
Officer Sri Prakasham booked the cases against PW1 basing on the special audit report. It is also elicited from PW1 that one
Prabhudasu who asked him to contact the accused officer used 24 to work at Bonala of Sircilla Mandal but he do not know his designation and further stated that he do not know the location of the house of the accused where he met him for the first time.
It is further admitted by PW1 in his cross-examination that “it is true only if there is an enquiry entrusted to the accused officer against him, he can submit the report either in favour to him or against him. I have not seen any such proceedings addresed to the accused officer to conduct enquiry against him. I do not know if head office had addressed letter to the accused officer to inform the status of the recovery of misappropriated amounts from my department and also to intimate the status of the criminal cases booked against him.” Pointing out these facts from PW1, it is the contention of the Learned defence counsel absolutely there is no any directions to the accused officer to hold any enquiry and to take any action against the PW1 and he was only asked to inform the status of the criminal cases and also to take necessary steps for recovery of the misappropriated amounts from the PW1, or from his parent department. It is true as contended by Learned counsel for accused as per the directions issued by the Secretary, APSWREIS, Hyderabad Ex.P7 directing Zonal Officer, Zone V, APSWREIS, Hanamkonda i.e., to the accused officer dt. 2.9.2008 wherein the specific direction is given to the accused officer as here under
In view of the above circumstances, it is to inform that the Zonal Officer, 25
Zone V, APSWREIS, Hanamkonda,
Warangal District is requested to take necessary steps to pursue the matter with the concerned officials and take actiontorecoverthehuge misappropriated Government funds and inform the Head Office, that the latest stage of the criminal case booked at P.S.Godavarikhani I Town against Sri J.Nagaraju (Nagaiah) who is presently working at UPS, Nagireddipur of Ganadhara Mandal, Karimnagar
District.
24.In view of above directions to AO herein, it is clear that only to submit the report relating to steps to be taken for recovery of the misappropriated Government funds and also to inform the latest stage of the criminal cases booked against the accused officer and in view of such directions, absolutely there is no any obligation on the part of the accused officer to submit negative report or a positive report in respect of the PW1.
Accordingly, it is the contention of AO when there is no work entrusted to accused officer, the question of doing favour or doing some official act in favour of the PW1 does not arise at all.
But without taking into consideration the fact situation of the case and basing on unfounded allegations of PW1 against accused officer, the ACB officials acted upon beyond their 26 purview and falsely implicated the accused officer in collusion with the PW1.
25.Learned counsel for AO, also invited the attention of the
Court to the statement made by the accused officer at the time of examination u/s. 313 Cr.P.C and further invited the attention of the Court to the date and time and Mediator Report I and
Mediator Report II marked as Ex.P2 and P3 and contended that it is unnatural and abnormal in conducting proceedings for implicating the accused officer herein. In the cross-examination of PW2 also it is admitted by him that there is no mention in
Ex.P1 about fixing the date, time and place of meeting with accused officer to give the bribe amount. It is also an admitted fact by PW2 in his cross-examination that “it is true it is not mentioned in Ex.P2 that the other pocket of PW1 was searched.
Therefore I do not know whether the PW1 was carrying mobile phone or kerchief. It is true the vehicle/car is bearing No. AP-13-
L-6242. I have not seen the person who boarded the car. I do not know what was transpired between PW1 and the person boarded the car. It is true accused officer have no chance to know the ACB Officials unless they were introduced. It is true that by the time of conducting test to the hand kerchief, PW1 was not examined by ACB officials. I did not observe accused officer by picking the amount from his pocket and thrown away the amount or not.” 27
26. The Learned counsel also attacked on evidence of PW7 and 8. In the cross examination of PW7, it is elicited that “It is true trap was laid at Warangal Range, ACB jurisdiction. It is true Karimnagar Range is not having jurisdiction over Warangal
Range offences. It is true as per the complaint alleged demand was made at Suprabha Hotel within the jurisdiction of
Warangal. It is true the date and place of proposed payment of bribe was not fixed as per the complaint. I do not know the scribe of the complaint.”
27.It is further admitted by PW7 that “ It is true PW1 is facing two criminal cases for misappropriation of funds and facing trial at Court at Peddapally and Court at Godavarikhani. He also admitted the fact in his cross-examination that “It is true FIR in this case was despatched to ACB Court at Hyderabat at 6.40 PM on 21.1.2009. The Special Judge received the FIR on 22.1.2009 at 10.30 PM and the distance between Warangal and Hyderabad is 140 KM and it will take four hours by bus and as per the FIR the place of occurrence is mentioned as Suprabha Hotel,
Nakkalagutta. It is true PW1 did not show any record that any enquiry was pending with accused officer. It is true accused officer also stated that no file was pending with him pertaining to PW1. It is true PW1 did not state that it was instructed by 28 accused officer to wait at Suprabha Hotel for arrival of accused officer.
28.It is also admitted by PW7 that “by the time we took vantage position it was dark and sun is not available. It is true the hotel is on the Highway to the Hyderabad. I did not seize the said car or any record pertaining to the car and so also the driving license of the car driver. I do not know the registration bearing No. AP-13-L-6242 belongs to a two wheeler and it does not belong to a car much less a Santro car.
29.Pointing out to the testimony of PW7 as well as PW8, it is the contention of the Learned defence counsel, absolutely there is no any credibility to the evidence of PW7 and PW8 and their evidence is not at all in corroboration to the evidence of PW1 and PW1 evidence is inconsistent with the evidence of PW2.
The Learned counsel invited the attention of the Court to Ex.D4 and pointed out that the information furnished by the RTA department, the vehicle/Santro car in which the accused allegedly came to Suprabha Hotel and picked up PW1 in the Car bearing No. AP-13-L-6242, but infact, the said car number is belonging to motor cycle, bearing Registration No.AP-13-L- 6242. Therefore, the entire story of the prosecution is coocked up and false and created for the purpose of implicating the accused in the present case.
29
30.It is true as contended by the Learned defence counsel that as per the information furnished by RTA, Hanamkonda,
Warangal the vehicle Motor bike bearing Registration No. AP-13-
L-6242 is in the name of Prime Inswlations represented by
B.K.Shyamsunder, R/o Hyderabad, Gudimalkapur. Therefore, it is very clear as per Ex.D4, the car bearing No, AP-13-L-6242 in which the accused officer allegedly came is a false fact and moreover no certificate of registration was seized and no driving license of the driver was seized during the course of investigation. Moreover, it is to be noted that Ex.P3 Post trap proceedings was prepared at the office of the accused officer, but not then and there where the trap was laid, tainted amount was seized and chemical test was conducted. Therefore, the testimonies of PW2 and PW7 creates a shadow of doubt in the entire case of prosecution. Therefore, I am unable to accept with the submissions of Learned Spl.Public Prosecutor that the prosecution case is proved beyond doubt. The decisions relied on by the prosecution are hereunder, are not applicable to the present case.
1) in between D.Velayutham Vs. State Represented by
Inspector of Police, Salem Town, Chennai in(2016) 1 SCC (Cri) 105 wherein it is held
Criminal Trial – Witnesses – Trap witnesses – not to be treated on par with 30 accomplice/particeps criminis/ - Trap witnesses is on a higher pedestal –
Corroboration is not mandatory in case of trap witness.
2) In between Chaitnaya Prakash Audichya Vs. CBI in (2016) 1 SCC (Cri) 186 wherein it is held
Public accountability – Vigilance – P.C.Act, 1988 – Section 7,13(1)(d) r/w 13(2) and Section 20 of
P.C.Act, 1988 – illegal gratification – demand and acceptance of – fully established – testimonies of complainant and punch witness – completely consistent – tainted currency notes – recovered from person of accused – phenolphthalein invocable u/s.20 of P.C.Act, 1988 – stood unrebutted – Conviction confirmed.
3) In between Indra Vijay Alok Vs. State of
Madhyapradesh reported in (2016) 1 SCC (Cri) 540 wherein it is held “P.C.Act, 1988 – Section 7, 13 (1)(d) r/w 13(2) of
P.C.Act, 1988 and Section 20 – demand and acceptance completely established – evidence of complainant, corroborated by statement of punch witnesses – presumption u/s.20 unrebutted – Conviction confirmed.”
4) In Reparla Venkata Gopala Ratnam Vs State of A.P.
reported in 2014 (1) ALD Crl 434 wherein it was held 31 “The Hon’ble High court of AP held that the prosecution need not be proved by direct evidence.”
5) In Raghubit Singh Vs State of Haryana reported in AIR 1974 SC 1516wherein it was held “The Hon’ble Supreme Court held seizure - of currency – trap is resipsa loquitut.”
6) In Hazari lal Vs Delhi Administration reported in AIR 1980
SC 873 wherein it was held
“The Hon’ble Supreme Court held that raised presumption u/s 114 (a) of Indian Evidence
Act recovery notes from accused would raise presumption that the accused received the bribe amount. “
7) In B. Noha Vs State of Kerala and another reported in 2007 (1) SCC Crl 711 wherein it was held “The Hon’ble Supreme Court held that while referring the judgment in State of AP vs
Kommaraju Gopala Krishna Murthy (2000 (9)
SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by accused.”
8) In State Vs. Jhan chand reported in 1984 Crl.J.NOC (104)
Delhi wherein it was held 32
Regarding the question as to the capacity of accused to do favour or disfavour at the time of demand of bribe, the fact that he was not in a position to show any favour is of no consequence.
9) In Md.Iqbal Ahmed Vs. State of A.P. reported in AIR 1979
S.C. 677 : 1979 Crl.L.J.633 wherein it was held that “it is incumbet on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either by producing the original sanction which itself contains the facts constituting the office and grounds of satisfaction or by adducing evidence alinude to show the facts placed before the sanctioning authority and the satisfaction arrived by it.”
10) In Madhukar Bhaskar Rao V/s. State of Maharastra reported in 2001 (1) ALD (Crl) 77 (SC)wherein it was held “P.C. Act, 1988 – Section 20 and 7 – Word ‘gratification ‘ mans any payment for giving satisfaction to a public servant who received it –Public servant found in possession of currency notes smeared with phenolphthalein – presumption can be drawn that he accepted the gratification.” 33
11) In State of Maharastra Vs. Narsingara Rao Gangaram
Pimple reported in AIR 1984 S.C.-63 wherein it was held “B) Evidence Act (1 of 1872) S. 133 – Trap witnesses Evidence of Appreciation of –
Touchstone to be applied – Decision of Bombay
High Court. D/22-23/1/1976 Reversed (PC 1860 S.161 and 162)
Where in a trap case, the judge magnified every minor detail or omission to falsify or throw even shadow of doubt on the prosecution evidence then, it would be the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. In deed, if such harsh touch stone is prescribed to prove such a case it will be difficult for the prosecution to establish any case at all.
Decision of Bombay High Court D-22/23-1- 1976, reversed.
12) In Mlukut Bihari & another Vs State of Rajasthan reported in Crl. Appeal No.870 of 2012 SC
It is not necessary that evidence of reliable witness is necessary to corroborate by another witness – Presumption u/s 20 of P.C. Act.
13) In N.K. Seetharama Sarma Vs State reported in 2013 (1) ALD (Crl) 431 (AP) wherein it was held
In the post trap proceedings appellant merely stated that he did not demand any bribe from complainant and allegations against him are false – Defence theory that money was 34 thrust into fold of his lungi by complainant rightly rejected by trial court as being highly unconvincing – Appeal dismissed.
14) In K. John Devasahayam Vs State of AP reported in 2014 (1) ALT (Crl) 280 wherein it was held
Case of the prosecution is that chemical test conducted on the fingers yielded positive results. Bribe amount was recovered. Numbers of the currency notes in the pre trap proceedings tallied with the notes recorded.
The very theory put-forth by the appellant that PW1 thrusted the amount into his pocket and ran away is quite unconvincing and unacceptable.
15) In The State Vs A. Parthiban reported in 2008 Crl. L. J.
4772 SC wherein it was held “7 & 13 (1) (d) – Difference between offences explained – Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Sec.7 – acceptance of illegal gratification in pursuance of demand by a public servant would fall under 13 (1) (d).”
16) B. Noha Vs State of Kerala and another reported in 2007 (1) SCC (Crl.) – 711 wherein it was held
a) There is no basis for PW1 to falsely implicate the accused – Evidence on record clearly show why the illegal gratification was demanded and accepted by the appellant – Evidence of PW1 35 does not suffer from any infirmity and evidence of PW2 is also clear credible and cogent.
b) When it is proved that there was voluntarily and conscious acceptance of money by the accused there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
c) When the amount is found to have been passed to the Public Servant the burden is on the Public Servant to establish that it was not byway of illegal gratification – No case of accused that he was legally entitled to collect the amount from PW1–the burden held was not discharged by accused.
31.Whereas the Learned counsel appearing on behalf of the defence has placed reliance on decisions reported in
1) Jayaraj Vs. State of A.P. (2014(2) ALD (Crl) 73)held as under:
“P.C.Act: Sec. 7 & 13 – Acquittal - 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 no other evidence to prove demand – Demand of gratification cannot be held to be proved only on the basis of complaint filed and evidence of panch witness –
Not sufficient for his conviction either under section 7 or under section 13(1)(d)(ii) r/w 13(2) –
Acquittal proper.
36
2) In P.Sirajuddin Vs. State of Madras AIR 1971 Supreme
Court 520 wherein it is held “Before public servant whatever be his status is publicly charged with acts of dishonesty which amount to serous misdeameanour or misconduct and a first information is lodged against him tehre must be some suitable prelimiary enquiry into the allegations by a respectable officer.”
3) The High Court of A.P. in Trilok Chandra Maurya Vs. State (2011 (2) ALD (Crl) 672 (AP) held as under:
“Allegation of accused reitrating his demand of bribe in respect of second contract and accepting illegal gratification – Cannot be believed, as there was no official favour pending with the accsued on alleged date of demand for bribe or on the date of trap.”
4) Hon'ble Supreme Court in Haridev Sharma Vs. State of
Delhi (AIR 1976 SC 1489) held as under:
“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 can not be accepted.” 37
5) The High Court of A.P. followed the findings of the Supreme
Court in Haridev Sharma in Kursheed Khan Vs. State reported in 1980 MLJ (Cri) 625 wherein it was held as under:
“The vital parts of which consist of demand, part payment and the trap incident dependent upon each other. Hence the prosecution is bound to prove all these vital parts. If the demand and part payment said to have been made from out of the total amount demanded by the accused and agreed to be paid by the Complainant have been disbelieved then the trap incident though proved does not stand by itself.” 6)The Supreme Court quoting the observation of Supreme
Court in Surajmal Vs. State, Delhi Admn reported in (1980
SCC 159) acquitted the accsued in C.M.Girish Babu Vs. CBI
(2009) 2 SCC (Cri) 1) & in State of Kerala and Another Vs.
C.P.Rao (2011) 2 SCC (Crl) 1010):
“Mere recovery of tainted money divorced from the circumstances under which it is paid is not suffiicient 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 prosecuton against the accused, in the absence of any evidence to prove payment of bribe or to show that the 38 accused voluntarily accepted the money knowing it to be bribe.
7)The Supreme Court in C.M.Girish Babu Vs. CBI {(2009) 2 SCC (Cri) 1} held as under:
“Mere recovery of tainted money divorced from the accused when substantive evidence not reliable – If enough to 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 – Tenability – Reiterated, 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):
“The crucial question would be whether the appellant had demanded any amount as gratification to show any official favour and whether the said amount was paid by PW10 and received by the appellant as consideration for showing such official favour.”
It was further held by the Honourable Supreme Court as under (at Para 18):
Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when th 39 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.”
8) The High Court of A.P. in K.Narsimhachary Vs. State, ACB (2003 Crl.LJ 3315) held as under:
“Once it is evident that PW1 for his own reasons was desperate I implicating the accused, it is not at all difficult for any one to ensure that the hands or parts of his body or apparel of the accused get in contact with the traces of phenolphthalein powder.“
9) In P.Satyanarayana Murthy Vs. Dist.Inspector of
Police & another (AIR 2015 SC 3549) wherein it was held “The proof of demand of illegal gratification, is the gravamen of the offence u/s. 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 40 person accused of the offence under Ss.7 to 13 of the Act would not entail his conviction thereunder.
32.Following the above decisions, looking into the written statement filed by the accused officer and also the statement made by the accused officer, during the examination u/s. 313
Cr.P.C. wherein and where under he categorically stated that
PW1 lodged a false complaint against him in collusion with PW6 and the ACB officials manipulated the chemical test and the post trap proceedings are drafted to the dictation of the ACB officials against the actual events at his office and also further stated in the examination u/s. 313 Cr.P.C., that at the time of his apprehension he shouted against the persons who caught hold him without knowing that they are ACB officials and moreover the sanction obtained in mechanical way without looking into the facts of the case and furthermore, he stated under examination u/s. 313 Cr.P.C., that PW6 has removed the ex.P7 letter from the correspondence file and the ACB officer did not conduct any discrete enquiry in the matter and without any such discrete enquiry a false case registered against him and the true version of accused officer has not been incorporated in
Mediator Report II.
41
33.Keeping in view the said statement made by the accused officer, taking into consideration the facts mentioned in the written statement, I find some more significant circumstances as here under:
That according to own version of PW1 he was involved in misappropriation of government funds while he was working on deputation in APSWREIS and APSWLTBCS and the amount allegedly misappropriated is not meagre amount and it is of Rs.20,16,301/- belongs to APSWLTBCR
School, Godavarikhani and Rs.1,34,675/- in respect of
APSWRPRP School, Nandimedaram and admittedly he was facing criminal prosecution in two different criminal courts and moreover the alleged misappropriation was taken place during his tenure before 2003 and whereas the accused officer is directed by Secretary of APSWREIS,
Hyderabad to submit his report as to progress of the criminal cases and steps to be taken for recovery of misappropriated amount from the PW1. In such directions, absolutely there is no mention to enquire about the PW1.
Absolutely there is no necessity to accused officer to secure the presence of PW1 for submitting his report.
Further, the version of PW1 that accused officer called him to meet and he received such message through one
Prabhudas, the employee of accused officer is not 42 trustworthy as the Investigation Officer did not choose to examine the said person Prabhudas as a witness.
34.It is also not the case of prosecution that the said
Prabhudas, is subordinate to the accused officer. No evidence collected about the said Prabhudas and another person i.e., unknown person who made calls to PW1 and who asked him to contact the accused officer herein. Admittedly the mobile number of PW1 is also not his own number and he borrowed the
SIM Card from somebody else i.e., PW4 Part Time Sweeper and it is not accepted by PW3 as driver of accused officer. The vehicle bearing No. AP-13-L-6242 is not a car, but it is a motor cycle. Whereas PW3 categorically stated that he is an electrician by that time and he is a chance witness to the incident dt. 21.1.2009. Therefore, the conduct of the PW1 is doubtful and the entire case of the prosecution is full of doubts.
35.Moreover, the call data collected under Ex.P12 and the calls relating to the accused officer allegedly made to PW1 is inconsistent with date and timings. PW1 is also uncertain about the exact time of making calls to PW1 and the exact date and time of receiving calls from the accused officer is inconsistent.
Therefore, the call data record is no way useful to prosecution when the substantive evidence of prosecution creates a shadow of doubt in the entire case of prosecution. Therefore, I am 43 unable to accept with the submissions of Learned Spl.Public
Prosecutor as submitted in his written arguments that the prosecution case proved and a presumption u/s. 20 of the
P.C.Act may be invoked.
36.Thus, in view of the above discussion, contradictory evidence adduced by prosecution through PW1, PW2 and other witnesses, Learned defence counsel rightly contended that the evidence of Investigation Officers also not worthy reliable. It is to be noted according to Mediator Report-I and II marked as
Ex.P2 and P3, apart from PW7 and PW8, one Mohd.Ali,
Inspector of Police, ACB, Warangal and one P.Sambaiah,
Inspector of Police, ACB, Karimnagar Range also participated in the alleged trap proceedings, but they are not cited as witnesses. Significantly PW7, PW8, Mohd.Ali and P.Sambaiah affixed their signatures of Mediator Report I marked as Ex.P2 and whereas though the names of Mohd.Ali and P.Sambaiah are mentioned in Ex.P3-Mediator Report-II and signed on it but PW8 has not affixed his signature on Ex.P3-Mediator Report II and moreover both Mohd.Ali and P.Sambaiah are not cited as witnesses in the charge sheet. Therefore, for all the above reasons and my findings, I hold that prosecution failed to establish the charge framed against the accused officer beyond all reasonable doubt.
44
37.In the result, accused is found not guilty for the offences u/s. 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and he is acquitted u/s. 248(1) Cr.P.C. The bail bonds of accused shall stand cancelled.
MO1 i.e., tainted amount of Rs.20,000/- is ordered to be returned to Complainant-PW1 if not reimbursed earlier by department and if returned, the same shall be remitted in the
Government Treasury and rest of the material objects Mos2 to 8 shall be destroyed, after appeal time is over.
Dictated to Stenographer Gr.I, transcribed by her,
corrected and pronounced by me in the Open Court on this the 27th day of September, 2019.
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION:
PW1Janga Nagaraju
PW2 Cheruku Manoj Kumar, Asst.Registrar/Auditor, O/o District Co-operative Audit Officer, Warangal.
PW3R.Ravi Kiran, Driver.
PW4 M.Mallesham, Part time Sweeper in UPS, Nagireddypur village.
PW5G.Srinivasulu, Section Officer, TS, Secretariat, 45
Hyderabad.
PW6K.Rambabu, Superintendent, Office of Secretary, APSWREIS, Hyderabad.
PW7T.Janardhan, Dy.Superintendent of Police, ACB, Warangal I/c.Dy.Superintendent of Police, Karimnagar.
PW8 B.Chand Basha, Inspector of Police, Cyber Crimes CCS, Hyderabad.
FOR THE DEFENCE - NONE -
DOCUMENTS EXHIBITED
FOR THE PROSECUTION
Ex.P121-01-2009Complaint given by PW1
Ex.P221-1-2009Mediator Report-I
Ex.P3 21-1-2009Mediator Report II
Ex.P4 21-1-2009Rough Sketch
Ex.P521-01-2009161 Cr.P.C.statement of PW3
Ex.P627-07-2010 Sanction order
Ex.P72.9.2008 Letter
Ex.P821-01-2009First Information Report
Ex.P9----Attendance Register
Ex.P10---Special Audit Report (20 sheets)
Ex.P11---Special Audiot Report (2 sheets)
Ex.P1227-05-2009Call details of accused officer vide Cell 46 9949348886
FOR THE DEFENCE
Ex.D15.2.2004Xerox copy of letter D.O.Lr.RC PS2/GDK/12345/2003
Ex.D229-12-2006Xerox copy of letter D.O.Lr.No.Zone- V/LTBCK/ 12345/GDK/2003
Ex.D3 20.1.2009Letter
Ex.D4 ---B-Register extract of vehicle bearing No. AP-13-L-6242
MATERIAL OBJECTS MARKED
MO1Tainted amount of Rs.20,000/-
MO2Sealed cover containing the sample phenolphthalein powder used for the demonstration purpose during pre trap proceedings.
MO3Sealed cover containing the sample powder of sodium carbonate used for the demonstration purpose during pre trap proceedings.
MO4Sealed cover containing the sample powder of sodium carbonate used during post trap proceedings.
MO5Sealed bottle containing right hand wash of accused
MO6 Sealed bottle containing left hand wash of accused
MO7 Sealed bottle containing resultant solution of contacted portion of right side pant pocket
MO8 White hand kerchief of accused officer 47
SPL. JUDGE FOR TRIAL OF SPE &
A.C.B CASES, KARIMNAGAR
Order Record 13 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| CRL.MP/284/2017 | Ch.Venugopal vs Bukhya Chandu | 15 Oct 2019 | ORDER | — |
| CRL.MP/161/2018 | T.Sudharashan vs Guguloth Hamsa Reddy | 14 Oct 2019 | ORDER | — |
| CRL.MP/540/2018 | Podilla Sadanandam vs Angadi Thirupathi | 10 Oct 2019 | ORDER | — |
| CRL.MP/606/2019 | Ram Rajaiah vs Pendota JAgadeesh Babu | 04 Oct 2019 | ORDER | — |
| CC/38/2015 | Janga Nagaraju vs Bheema Krishna Murthy | 27 Sep 2019 | JUDGMENT | Appeal Dismissed |
| CRL.MP/666/2019 | Badam Raj Kumar vs B.Srinivas | 27 Sep 2019 | ORDER | — |
| CC/139/2015 | Payyavula Ramesh vs Gurudwar Susheel Kumar | 24 Sep 2019 | JUDGMENT | Appeal Allowed |
| CRL.MP/665/2019 | Kola Rajaiah vs Sri Mirza PArvez Baig | 24 Sep 2019 | ORDER | — |
| CC/117/2015 | Perikedi Gangaram vs Dr. Rentala Ramamurthy | 13 Sep 2019 | JUDGMENT | Appeal Allowed |
| CC/109/2015 | Bhukya Laxman Naik vs Allenki Venkatesham | 31 Aug 2019 | JUDGMENT | Appeal Allowed |
| CC/104/2015 | Bandi Siddiramulu vs Narra Vejanna @ Bhojanna | 06 Aug 2019 | JUDGMENT | Appeal Allowed |
| CC/47/2015 | Ammu Devendar vs Mogili Uppal Reddy | 31 Jul 2019 | JUDGMENT | — |
| CC/150/2015 | K. Koteswara Rao vs B. Chandraiah | 22 Jul 2019 | ORDER | — |
Frequently Asked Questions
How many cases has Sri M. Johnson handled?
Sri M. Johnson has handled 13 court orders since 2019 at Karimnagar, PDJ Court Complex. The average disposal rate is 2 orders per month.
What types of cases does Sri M. Johnson hear?
Based on available records, Sri M. Johnson primarily handles Criminal matters (Criminal Cases, CRL) at Karimnagar, PDJ Court Complex.
Where is Sri M. Johnson currently posted?
Sri M. Johnson is posted as Spl Judge for Trail of SPE and ACB Cases -cum- VI Addl District and Sessions Judge Karimnagar at Karimnagar, PDJ Court Complex, Karimnagar, Telangana.
Are judgments by Sri M. Johnson available online?
Yes. 5 judgments by Sri M. Johnson are available on Legistro with full text, outcome, and sections cited.
How fast does Sri M. Johnson dispose cases?
Sri M. Johnson disposes approximately 2 cases per month, based on 13 orders handled over their tenure at Karimnagar, PDJ Court Complex.
Since when is Sri M. Johnson serving?
Sri M. Johnson has been serving at Karimnagar, PDJ Court Complex since 2019.
Case Types
Posting History
-
May 2019 — Oct 2019Spl Judge for Trail of SPE and ACB Cases -cum- VI Addl District and Sessions Judge Karimnagar · 13 orders
Outcomes on Record
Other Judges at this Court