IN THE COURT OF THE SPECIAL JUDGE FOR SPE AND ACB CASES-
cum-ADDL. METROPOLITAN SESSIONS JUDGE: VIJAYAWADA.
Present: V.SRINIVASA ANJANEYA MURTHY
Special Judge for SPE & ACB Cases-cum-Addl.
Metropolitan Sessions Judge, Vijayawada
Thursday, this the 29 th day of September, 2022
C.C.No.36 of 2015
Between
The State: Anti Corruption Bureau Rep.by its Inspector of Police, Vijayawada Range, Vijayawada. … Complainant
And
Sri Tatipaka Chandrasekhar, S/o Rama Rao, 48 years, Sub-Inspector of Police, Agiripalli Police Station, Krishna District. … Accused.
This case is coming before me for final hearing on 27.09.2022 in the presence of learned Special Public Prosecutor for complainant and Sri K.Arun Kumar, Advocate for the Accused Officer and having stood over for consideration till this day, this Court made the following:
J U D G M E N T
01. This is an Anti Corruption Trap case which arises out of Cr.No.03/RCT-
ACB-VJA/2014 of Anti Corruption Bureau, Vijayawada Range, Vijayawada.
02. Sri Tatipaka Chandra Sekhar who was working as SI of Police, Agiripalli
P.S., Krishna District from 02.07.2013 to 20.01.2014 is the Accused Officer was chargesheeted by the State represented by Inspector Of Police, ACB, Vijayawada
Range, Vijayawada for the offences under Secs.7 and 13 (2) R/W. Sec. 13 (1) (d) of Prevention of Corruption Act 1988.
03.Accused Officer is on bail and defended by counsel.
04.The procedure prescribed for trial of warrant case instituted upon Police report is followed in this case.
05.After appearance of the Accused Officer, copies supplied to him and the matter was heard on the question of charges. As there were no grounds for discharge, charges U/Secs.7 and 13 (2) & 13 (1) (d) of P.C.Act, 1988 have been 2 framed, read over and explained to Accused Officer to which he pleaded not guilty and claimed to be tried.
06.The sum and substance of the charges and the case of the prosecution, in brief, is as follows:
(i) The Accused Officer was working as SI of police, Agiripalli P.S.,
Krishna District as on 20.01.2014 and as such he is a public servant within the meaning of Sec.2(c) of Prevention of Corruption Act,1988.
(ii) L.W.1/Sri. Jalaparthi Seetha Rama Krishna/Defacto Complainant is a native of Kalaturu Village, Agiripalli Mandal,Krishna District and the A.O asked for bribe of Rs.10,000/- to give permission to L.W.1/complainant and his villagers to conduct cock fights in the village and not to book any cases and accordingly, the complainant paid the bribe amount and organized cock fights in the village on 14.01.2014.
(iii) On 18.01.2014 when P.W.4/E. Venkata Subbaiah, who is the friend of the complainant went to the Police Station, A.O asked him to inform the complaint to meet him in the police station on 19-01-2014.
(iv) Accordingly, on 19.01.2014 the complainant met the A.O and the A.O demanded additional bribe amount of Rs.15,000/- stating that the complainant organized cock fights in a grand scale and further threatened the complainant that if he fails to pay the demanded bribe amount, he would book cases and open rowdy sheets against the complainant and his villagers and further demanded the complainant to pay the said bribe amount on 20.01.2014.
(v) As the complainant is not willing to pay the bribe to the A.O, he lodged
Ex.P.12/Report before P.W.8/the Dy.S.P, ACB, who after observing procedural formalities, registered FIR in Cr.No. 03/RCT-ACB-VJA/2014 and made arrangements for laying the trap.
(vi)During the course of investigation, P.W.8 secured the services of P.W.6/G.
Veeranna Babu and L.W.8/B.V.Suresh Babu as mediators and after observing necessary formalities organized a trap against the Accused Officer on 20.01.2014 when he further demanded and accepted bribe amount of
Rs.10,000/- for doing the official favour as gratification other than legal remuneration and when phenopthelin test was conducted to the fingers of the accused, it yielded positive result and the tainted amount of Rs.10,000/- was 3 recovered from the left side pant pocket of the accused. Phenopthelin test conducted over the inner linings of the pant pocket of the accused yielded positive result.
(vii) P.W.8 arrested the accused officer and produced him for remand and subsequently the accused officer was enlarged on bail.
(viii) P.W.8 recorded the statements of L.W.1/Defacto Complainant and
P.Ws.1 to 3. P.W.9 recorded the 161 Cr.P.C. Statements of P.W.4/E. Venkata
Subbaiah and P.W.5/A. Sankara Reddy and also got recorded the Sec.164
Cr.P.C. statement of P.W.1 through the learned Magistrate concerned.
(ix) The Government of State of A.P. being the competent authority to remove the accused officer from services, issued sanction proceedings vide
Ex.P11/G.O.Ms. No.127 Home (Police-SC-A) Department Dt.12.08.2015 to prosecute the accused officer.
07.In order to prove the charges, the prosecution examined P.Ws.1 to 10 and got marked Exs.P1 to P14 and M.Os.1 to 8. For the accused officer
Exs.D1 & D2 /The relevant portion in the respective 161 Cr.P.C. statements of
P.Ws.2 and 5 during their cross-examination marked.
08. L.W.1 is the defacto complainant and he died before commencement of trial of this case.
09.P.W.1 is the then Inspector of Police, Hanuman Junction under whom the
A.O worked as SI of Police, Agiripalli as on the date of the trap. He deposes that every S.H.O of all police stations have to register cases against the persons who conducted cock fights on the eve of Sankranthi Festival, that just one hour before the trap he heard that the A.O was not booking cases by taking bribe, but prior to the date of trap he didn’t hear any such allegations against the A.O. and on the date of the trap he heard that the A.O neglected to implement the orders of their higher officials in booking of the cases in respect of cock fights and the ACB officials while informing the arrest of the A.O obtained his signatures on Ex.P.8/post trap proceedings.
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10.P.W.2 is the then Constable of Agiripalli P.S who worked under the A.O as on the date of the trap. He deposes that on 20.01.2014 he was on Sentry duty from 7.00 AM to 7.00 PM, that while he was on Sentry Duty one person came and enquired about the A.O and he told that the A.O went to Nuzivid Municipal Office to attend an election meeting and the said person again came at 6.10 PM and directly went into the room of A.O and within 15 to 20 minutes he came out and then some ACB Officials went into the room of A.O and he heard that the person who went into the room of A.O is L.W.1/Complainant and after the said person came out from the room of A.O the trap was conducted.
11.P.W.3 is the then Head Constable of Agiripalli P.S., worked under the A.O as on the date of the trap. He deposes that on 20.01.2014 he was on traffic duty from 8.00 AM to 7.00 PM and at about 6.00 PM A.O called him to the Police
Station in connection with CD file and immediately he went to the police station and the sentry constable told him that the said CD file was traced and he stood on the back side of the police station and at about 6.10 PM he noticed some persons went inside the police station and he followed them and he noticed the presence of three persons in the room of A.O and on enquiry he was told that the said persons are ACB Officials and they trapped the A.O while he was taking bribe of
Rs.10,000/- from L.W.1/Complainant for not registering cock fight cases.
12.P.W.4 is an alleged independent witness and he deposes that on 18.01.2014 at about 9.30 AM A.O took their people on the allegations that they are conducting cock fights and at about 10.30 AM or 11.00 AM he went to the Police Station and talked the issue with the A.O and while he was about to leave, A.O asked him to inform L.W.1/Complainant that he was asked to meet the A.O since he was not responding to the phone calls and on the same day he informed the said message to the complainant and on 20.01.2014 he came to know that on the report of the complainant A.O was trapped by ACB Officials.
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13.P.W.5 is the then SDPO, Nuzividu as on the date of the trap. He deposes that A.O worked under him as SI of Police, Agiripalli P.S, that in January, 2014 he issued Ex.P.1/Memo dated 04.01.2014 to all the Inspector of Police and SI of
Police working in his Sub-Division instructing them not to allow cock fights and anti-social activities within their respective limits and on 20.01.2014 he came to know that A.O was trapped by ACB Officials.
14.P.W.6 is the then Assistant Executive Engineer, R&B and who acted as one of the mediators. He deposes that on 19-01-2014 their Executive Engineer addressed a letter to their Deputy Executive Engineer asking to direct him and the other mediator to attend before the Dy.S.P ACB, Vijayawada on 20.01.2014 and on 20.01.2014 at about 10.00 AM one Inspector from ACB called him by phone and at about 11.30 AM he went to the ACB Office and within 5 minutes the other mediators also came and at about 11.40 AM the pre-trap proceedings started and at about 12.45 PM the pre-trap proceedings were concluded and Ex.P.3/Pre-trap proceedings was prepared and the mediators signed on it. He further deposes that at about 1.00 PM their trap members proceeded to Agiripalli and reached at about 2.10 PM, the complainant at about 2.15 PM went into the police station, but came out of the police station and informed that the A.O was not available and waited at outskirts of the village and at about 5.30 PM they received information about arrival of A.O to the police station and then again they went to near to the police station and at 6.10 PM the complainant went into the room of the A.O and at about 6.25 PM the complaint came out of the police station and gave prearranged signal and then the trap party members went into the police station and trapped the A.O.
He further deposes that the chemical test was conducted to the both the hands of the A.O yielded positive result, that the A.O produced the tainted amount from his left pant pocket and the inner linings of the left pant pocket of the A.O also yielded positive result and that the Dy.S.P prepared rough sketch of the scene of offence 6 and seized the tainted amount and resultant solutions, General Diary, Petty Case
Register for the year 2014 and Sentry relief book and at about 9.30 PM the Dy.S.P arrested the accused and the post trap proceedings concluded at 9.45 PM and
Ex.P.8/post trap proceedings were prepared and all the trap party members signed on it.
15.P.W.7 is the Section Officer in Home (SC.A) Department, A.P. Secretariat,
Velagapudi who deposes about Ex.P.11/Sanction order signed by the Principal
Secretary to Government, Home Department under which sanction to prosecute
A.O for the offences under P.C.Act was granted on examining the final report submitted by the Director General, ACB.
16.P.W.8 is the then Deputy Superintendent of Police, ACB, Vijayawada
Range and he deposes that on 19.01.2014 at about 5.00 P.M. he received Ex.P12 complaint from L.W.1/complainant, that at about 5.15 PM he entrusted the report to P.W.9 to conduct discrete enquiry and on 20.01.2014 at about 11.00 AM P.W.9 endorsed on Ex.P.12 that his enquiry discloses that the contents of Ex.P.12 were true and correct and at about 11.30 AM he registered the said complaint as Ex.P.13
FIR and forwarded the same to this court, that he secured the mediators through
P.W.9, conducted pre trap proceedings and also post trap proceedings, effected arrest of accused and subsequent investigation conducted by P.W.9. This witness narrated the details of pre and post trap proceedings conducted by him.
17.P.W.9 is the then Inspector, Range I, ACB, Vijayawada and he deposes receipt of Ex.P12 report from P.W.8, that he conducted discrete enquiry on Ex.P12 and submitted the same to P.W.8 at 11.00 A.M. on 20.01.2014, on which P.W.8 registered Ex.P13FIR, that he assisted P.W.8 in conducting pre and post trap proceedings and after producing the accused for remand, he took up further investigation, that he received the service particulars of the A.O and Job chart and
Citizen Charter from S.P, Krishna District, that on 03.03.2014 he served a notice 7 on the A.O calling for his explanation and on 24.03.2014 he received the explanation from the A.O.
18.P.W.10 is the then D.S.P, ACB, Vijayawada and he deposes that he didn’t conduct any investigation in this case, but on receiving the approved charge sheet, he filed the same before the Court.
19.After closure of the evidence on prosecution side, the accused officer was examined U/Sec.313 Cr.P.C. explaining the incriminating circumstances in the evidence of prosecution witnesses to him and he denied the same. The accused officer further stated that he neither demanded nor accepted any bribe amount from L.W.1/Defacto Complainant and that he was falsely implicated in this case.
The A.O has further stated that P.W.4 asked him not to book cases to which he didn’t agree and that there was no official favour relating to L.W.1/Complainant was pending before him as on the date of the alleged trap and that
L.W.1/Complainant forcibly thrusted the tainted amount in his hands and when he protested the act of the complainant, the complainant forcibly thrusted the tainted amount in his pant pocket and while he was resisting the same, the ACB officials came and falsely implicated him in this case.
20.Arguments of the learned Special Public Prosecutor for the Prosecution and the learned counsel for the accused officer are heard. The Special P.P. and the learned counsel for the A.O filed memo of arguments besides addressing oral arguments.
21.In the light of the submissions for both the parties, the following points are settled for determination :
1.Is the Accused Officer a Public servant ?
2.Is there a valid sanction to prosecute the Accused Officer ?
3.Whether there was any preliminary enquiry before registering the Crime ?
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4.Whether there was any official favour pending before the Accused Officer during the relevant period pertaining to L.W.1/defacto-Complainant ?
5.Whether there was any demand of bribe amount and acceptance of bribe as illegal gratification other than legal remuneration by the Accused Officer?
6.Whether the prosecution is able to prove and establish the guilt of the Accused Officer for the offence punishable U/Sec.7 of Prevention of Corruption Act, beyond all reasonable doubt?
7.Whether the Accused Officer being a public servant committed acts of criminal mis-conduct ?
8.Whether the prosecution is able to prove and establish the guilt of Accused Officer for the offence punishable U/Sec.13(2) r/w.13(1) (d) of the Prevention of Corruption Act 1988, beyond all reasonable doubt ?
22. POINT No.1 : Is the Accused Officer a Public servant ?
The fact that AO is a public servant is not in dispute. According to the prosecution, he was working as Sub Inspector of Police, Agiripalli Police Station,
Krishna District as on 20.01.2014. Hence, it is established that AO was a public servant as on the date of the trap. Accordingly the point is answered.
23. POINT No.2 : Is there a valid sanction to prosecute the Accused Officer ?
The learned counsel for AO submit that there was no application of mind while according sanction and as such it is not valid under law. On the other hand, it is the case of the prosecution that the sanction issued by the Government to prosecute AO is valid. The prosecution relied on the evidence of P.W.7 who was working as Section Officer, Home (SC.A) Department, Velagapudi and Ex.P11
GOMs.No.127, Home (SC.A) Department, Dated 12.08.2015 under which sanction to prosecute the accused orders were issued. Ex.P11 sanction order categorically refers to the manner in which the incident in question took place, apart from referring to the mediators report, gist of statement of witnesses, copy of
FIR etc. Therefore, the argument of the learned counsel for AO that there was non- 9 application of mind while granting sanction, is not correct and there was valid sanction to prosecute AO. Accordingly, the point is answered.
24. POINT No.3: Whether there was any preliminary enquiry before registering the Crime?
P.W.9 the then Inspector, Range-I, ACB, Vijayawada deposes that on 19.01.2014 at about 5.15 P.M. he received Ex.P.12 from P.W.8 instructing him to conduct discrete inquiries as to the complaint, genuineness of contents and reputation of AO and accordingly he made discrete inquiries and gave report to
P.W.8 at 11.00 A.M. on 20.01.2014 and then P.W.8 registered the complaint of
L.W.1/Complainant. P.W.8 corroborated P.W.9. The evidence of P.Ws.8 and 9 show that on receiving report from L.W.1/complainant, P.W.8 instructed P.W.9 to make discrete enquires and to submit his report, on which P.W.9 submitted his report to P.W.8/Deputy Superintendent by way of an endorsement on Ex.P12 report and pursuant to the said endorsement the crime was registered. It may be true that the endorsement may not contain the names of the persons enquired by
P.W.9, but the enquiry to be done cannot be an open enquiry, since, such open enquiry would definitely give a clue to the AO and make him vigilant, therefore, merely because the endorsement does not disclose the source of information, the discrete inquiries so conducted, cannot be found fault with. Accordingly, this point is answered.
25. POINT No.4:Whether there was any official favour pending before the
Accused Officer during the relevant period pertaining to the defacto-
Complainant ?
According to the prosecution, L.W.1/Defacto complainant on 14.01.2014 asked for permission to organize cock fights in their village on the eve of
Sankranthi Festival to which AO demanded for Rs.25,000/- and after bargaining he agreed to receive Rs.10,000/- and accordingly he paid Rs.10,000/- and organized cock fights and again on 18.01.2014 he was called by the Accused 10
Officer through his friend/P.W.4 and accordingly he met the Accused Officer on 19.01.2014 and the Accused Officer asked another Rs.15,000/- stating that the complainant organized the cock fights in a grand level and further threatened him that if he fails to pay Rs.15,000/-, he will book the cases and open rowdy sheet against him and after bargaining the Accused Officer reduced the bribe amount to
Rs.10,000/- and directed him to pay the same on the next day itself and since he did not intend to pay the bribe, he lodged the report. Here, the complainant died and as such he was not examined as a witness. According to Ex.P12 report of the complainant the official favour is not to book any cases against the complainant for the cock fights already organized by him on the eve of Sankranthi Festival.
P.W.1 was the Inspector of Police, Hanuman Junction under whom the Accused
Officer worked as SI of Police and in his cross-examination he admitted that the
Accused Officer has no authority to give permission to any person to conduct cock fights and he has not received any bribe allegations against the Accused Officer and that the Accused Officer registered some cases against organizers of cock fights of Kalaturu Village and the Accused Officer never neglected his duties and no cases relating to L.W.1/complainant are pending in Agiripalli P.S. P.W.2 was a
Constable worked under the Accused Officer and in his cross-examination he admitted that the Accused Officer booked a case STC. No.67/2014 against 23 persons of Kalaturu and its neighbouring villages for conducting cock fights in
Kalaturu village and he also filed the charge sheet before the learned Magistrate court concerned. P.W.5 was the DSP under which the Accused Officer worked as
SI of Police and in his cross-examination he admitted that he issued a memo to all the SI of Police and Inspector of Police instructing them not to allow cock fights and according to his memo the Accused Officer registered some cock fight cases within the limits of his Police Station on the eve of Sankranthi festival and he has not received any complaint from any person against the Accused Officer about the 11 demand of any bribe and he never issued any memos to the Accused Officer for not registering cock fight cases. Ex.P5 copy of Petty Case Register shows that on 13.01.2014 the Accused Officer has booked case against 23 persons for organizing cock fights and filed charge sheet and produced them before the Magistrate concerned and it further shows that among the 23 persons who were accused in that petty case, some of the villagers of Kalaturu village also there. This Ex.P5 shows that already the Accused Officer has registered a petty case against the persons of Kalaturu village for conducting cock fight cases on the eve of
Sankranthi festival and filed charge sheet also before the court concerned. Hence, the version of the complainant in Ex.P12 report that by paying Rs.10,000/- bribe to the Accused Officer, he conducted cock fight cases on the eve of Sankranthi festival and that no cases were booked against their villagers, is some how doubtful. When the Accused Officer has already booked petty case against the villagers of L.W.1/complainant on 13.01.2014 as evidenced by Ex.P5, the allegation that the Accused Officer demanded for bribe for not booking any cock fights against the villagers of the L.W.1/complainant is not reliable and not acceptable. Because, when already a case was booked against the villagers of
Kalaturu, the question of demanding bribe for not booking any cases subsequently does not arise. Another important aspect is that as per the superior officers of the
Accused Officer, the Accused Officer has no authority to grant permission to allow
L.W.1/complainant to organize cock fights and as such the version of L.W.1/ complainant that for giving such a permission the Accused Officer demanded bribe cannot be accepted. Hence, as on the date of Ex.P12 report of L.W.1/complainant, the prosecution failed to establish any official favour relating to him was pending
before the Accused Officer. On the other hand, it is the evidence of superior
officers of the Accused Officer that there were no bribe allegations against him for not booking any cock fight cases and that they never issued any memo to the 12
Accused Officer for not booking cock fight cases. From the aforesaid discussion, I have no hesitation to hold that the prosecution failed to establish beyond all reasonable doubt that there was official favour pending before the Accused Officer during the relevant period pertaining to the defacto-Complainant. Accordingly, this point is answered.
26. POINT No.5 : Whether there was any demand of bribe amount and acceptance of bribe as illegal gratification other than legal remuneration by the
Accused Officer?
In order to bring home a charge U/Sec.7, the prosecution has to prove that the AO accepted illegal gratification, which was not remuneration for which he was legally entitled to and that he has accepted the same as motive for doing an official act.
27.In order to appreciate the same, the evidence of L.W.1/complainant at whose instance the law was set into motion is important, but unfortunately
L.W.1/complainant could not be examined as he died. The learned Special P.P.
submit that the evidence P.W.6/mediator is so important to prove the acceptance of bribe by the Accused Officer. I have gone through the evidence of P.W.6. P.W.6 in his evidence categorically deposes about the pre and post trap proceedings. P.W.6 in his chief examination itself has stated that on 19.01.2014 their Executive
Engineer addressed a letter to their Deputy Executive Engineer who in turn asked him to attend before the DSP, ACB, Vijayawada on 20.01.2014 and on 20.01.2014 one Inspector from ACB at about 10.00 A.M. called him by phone and asked him to attend before DSP, ACB at about 11.30 A.M. and accordingly he went to the
ACB office at 11.30 A.M. Admittedly Ex.P12 report of the complainant was received by P.W.8 on 19.01.2014 at 5.00 P.M. and on the same day at 05.15 P.M.
he made an endorsement on Ex.P12 and forwarded to P.W.9 directing him to conduct discrete enquiries and P.W.9 in turn resubmitted the said report by making 13 an endorsement about his discrete enquiries to P.W.8 at 11.00 A.M. and at about 11.30 A.M. on 20.01.2014 P.W.8 registered Ex.P13 FIR. The evidence of
P.W.6/mediator shows that on 19.01.2014 itself he was asked by his superior officers to report before the DSP, ACB on 20.01.2014 at 11.30 A.M. to act as a mediator, but by that time the FIR was not registered and even discrete enquiries on the FIR were also not conducted. This shows that P.W.8 soon after receipt of
Ex.P12 report, without confirming the truth or otherwise of the contents of the said report, decided to lay trap and made arrangements by securing the mediators and this raises any amount of doubt with regard to the story of the prosecution about the alleged trap and it appears to be a pre-arranged trap. According to P.W.6 one constable applied phenopthalin powder to currency notes and put the currency notes in the left side shirt pocket of L.W.1/complainant. Whereas, in the 161
Cr.P.C. statement of L.W.1/complainant he has stated that after applying phenopthalin powder to the currency notes they were kept in a cover and the cover was kept in his shirt pocket and in such a case the Investigating Officer has to seize the said cover also but the cover was not seized. P.W.6 in his cross- examination admitted that he has not seen while L.W.1/complainant was paying the tainted amount and while the Accused Officer was accepting it. P.W.6 further stated in his cross-examination that the other mediator first prepared the draft post trap proceedings and later made corrections to it and on the dictation of the DSP the report was typed. This shows that there was a draft post trap proceedings to which corrections were made and later fair copy was prepared but the said draft copy was not produced. P.W.6 in his cross-examination has stated that the staff members of DSP carried Sodium Carbonate and phenopthalin powder with them from the office of DSP when they started for trap. This evidence of P.W.6 raises any amount of doubt with regard to the alleged trap, because the ACB officials are permitted to carry Sodium Carbonate powder for the purpose of chemical test after 14 completion of post trap proceedings, but carrying phenopthalin powder to the scene of offence i.e. place of trap, raises any amount of doubt with regard to the story of the prosecution. Because, the ACB officials are supposed to leave the phenopthalin powder in the office of DSP by putting the same in a sealed cover after completion of post trap proceedings and they should not carry the same to the place of post trap proceedings. Hence, this circumstance also raises any amount of doubt with regard to the correctness and genuineness of the alleged trap and it seems that it is a pre-planned trap. L.W.1/complainant in his 164 Cr.P.C. statement recorded by the learned Magistrate categorically stated that P.W.8/DSP, ACB and
P.W.9/District Inspector have taken Rs.10,000/- from him and kept some powder on the currency notes and they kept the amount in his shirt pocket. This portion of 164 Cr.P.C. statement of L.W.1/complainant shows that P.Ws.8 and 9 themselves applied phenopthalin powder to the currency notes and kept the same in the pocket of L.W.1/complainant, whereas P.W.6 is stating that one constable applied phenopthalin powder and kept the same in the shirt pocket of the complainant.
Prosecution is stating that it was mistakenly told like that by L.W.1/complainant in his 164 Cr.P.C. Statement. In such a case, the prosecution has to explain, why
P.W.9 instead of getting rectified the said mistake in the 164 Cr.P.C. statement of
L.W.1/complainant, by the learned Magistrate who recorded the said statement by re-recording the 164 Cr.P.C. statement of L.W.1/complainant, he himself recorded 161 Cr.P.C. statement of L.W.1/complainant for rectification of that mistake.
P.W.9 admitted that he did not take any steps for rectification of the mistakes in 164 Cr.P.C. statement of L.W.1/complainant by producing him before the learned
Magistrate who recorded the said statement, but he re-examined
L.W.1/complainant and recorded his statements to correct the said mistake and this shows any amount of doubt with regard to the story of the prosecution. When once 164 Cr.P.C. statement of L.W.1/complainant is recorded by the learned Magistrate, 15 it cannot be corrected by the Investigating Officer by re-examining him under
Sec.161 Cr.P.C. When 164 Cr.P.C. statement of L.W.1/complainant is considered, it is very clear that P.Ws.8 and 9 applied phenopthalin powder to the currency notes and kept the same in the shirt pocket of L.W.1/complainant. This shows that
P.Ws.8 and 9 have taken much interest in conducting trap under the influence of
L.W.1/complainant. The action by P.W.8 in securing P.W.6 and another mediator on receiving the complaint from L.W.1/complainant, even before conducting the discrete enquiries and registration of FIR, also shows his anxiety and interest to conduct the trap against the Accused Officer and it shows that he is pre-minded to conduct the trap. Another important aspect is that according to P.W.8 he registered the FIR at 11.30 A.M. and immediately he forwarded the FIR to this court, but the endorsement of this court on Ex.P13 shows that this court received Ex.P13 at 06.10 P.M. Admittedly, the distance between the office of P.W.8 and this court is only 4 or 5 kms and as such if the FIR was forwarded to this court immediately, it should reach to this court before 02.00 P.M., but it was received by this court at 06.10 P.M. and it seems that after completion of the pre trap proceedings, it was registered and forwarded to this court. So far as demand of alleged bribe of
Accused Officer is concerned, no independent evidence is produced by the prosecution. Only the evidence of P.Ws.8 and 9 is available to prove the allegation of demand but since for the aforesaid reasons, they are interested in laying the trap against the Accused Officer and as such their evidence cannot be accepted without any independent evidence to prove the allegation of demand for bribe. P.W.9 admitted that he served a notice to the Accused Officer calling for his explanation and he has received explanation from the Accused Officer but the same was not produced before the Court. The contention of the Accused Officer is that he did not demand any bribe and did not accept any bribe from L.W.1/complainant and that P.W.4 demanded him not to book cases, to which he refused and as such at his 16 instance false report was given by L.W.1/complainant and that L.W.1/complainant on the date of alleged trap forcibly tried to thrust the amount in his hands and when he protested the act of L.W.1/complainant he thrusted the same suddenly in his pant pocket and while he was resisting the act of L.W.1/complainant, in the meanwhile the ACB officials caught him and that they have not recorded his version and falsely implicated him in this case. On considering the entire material,
I am of the opinion that there is some force in the version of the Accused Officer, because when there was no official favour relating to L.W.1/complainant pending
before the Accused Officer, the question of accepting the bribe does not arise.
Simply because the tainted amount was received from the possession of Accused
Officer, it itself cannot prove the guilt of the accused officer beyond all reasonable doubt. Here in the case on hand, already the Accused officer has booked cases against the villagers of L.W.1/complainant for conducting cock fights on the eve of Sankranthi festival and he has also filed the charge sheet and he has no authority to grant any permission to conduct cock fights and in such a case the story of demanding bribe for not booking any cases from L.W.1/complainant is doubtful. The other factors i.e., securing the mediators even before conducting discrete enquiries and registering the FIR, several discrepancies in Sec.161 and
Sec.164 Cr.P.C. statements of L.W.1/complainant which were not properly and satisfactorily answered by the prosecution, I am of the opinion that the prosecution miserably failed to establish the pending of official favour, demand and acceptance of the bribe by the Accused Officer beyond all reasonable doubt.
28.The learned Special P.P. relied on the following citations while arguing that since possession of currency notes is established, the prosecution proved the guilt of the Accused Officer.
1. Ramesh Harijan Vs. State of U.P (July, 2013), 2013 (2) ALT (Crl.) 378 (SC) 17
2. Kishan Chand Mangal Vs. State of Rajasthan (1982) 3 SCC 466
3. Hazari Lal Vs. State (Delhi Administration) (1980) 2 SCC 390
4. M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691
5. V.D. Jhingan Vs. State of U.P AIR 1966 SC 1762
6. Krishna Pillai Vs. State of Kerala 1989 (1) Crimes 700
7. Shivraj Singh Vs. Delhi Administration AIR 1968 SC 1419
8. C.K. Damodara Nair Vs. Government of India 1997 CRLJ 739
9. State Vs. A Parthiban 2008 CRLJ 4772 SC
10. Subash Prabat Sonrane Vs. State of Gujarat 2003 SC AIR 2169
11. State of Andhra Pradesh Vs. Vasudeva Rao 2004 CRLJ 620.
12. State of M.P Vs. Harishankar Bhagawan Tripati 13.State of U.P Vs. Zakrullah AIR 1998 SC.1474
14. State of Maharashtra Vs. Narasinga Rao Gangaram Pimple AIR 1984 SC 63
29.I have gone through the cited decisions carefully. There is no dispute with regard to the legal preposition in the cited decisions, but it is settled law that in order to establish the guilt of the accused for the offence Under Sec.7 of
Prevention Of Corruption Act, 1988, the prosecution has to prove the demand and acceptance of the bribe by the Accused and unless the same are proved, the accused is not liable for conviction.
[
30.In N.Vijay Kumar Vs. State of Tamilnadu in Crl.Appeal Nos.100- 101 of
2021 arising out of SLP (Crl.) Nos.4729-4730 of 2020 the Hon’ble Supreme
Court while dealing with the situation where the prosecution failed to prove the demand, held as under:
12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections. 7, 13(1)(d)(i) and (ii) of the Prevention of 18
Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section. 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.
31.In P.Satyanarayana Murthy Vs. District Inspector of Police and another (2015) 10 SCC 152 the Hon’ble Supreme Court held that “mere possession of recovery of currency notes from an accused without proof of demand would not establish Sec.7 as well as 13 (1) (d) (i) & (ii) of Prevention of Corruption Act, 1988. In the cited judgment, it has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt of illegal means or abuse of possession of a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be a indispensable essentiality and of mandate for an offence U/Secs. 7 and 13 of Prevention of Corruption Act, 1988. Dealing with the same, the Hon’ble
Supreme Court observed as under:
21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Secs.7 and 13 (1) (d) (i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Secs.7 or 13 of the Act would not entail his conviction thereunder.
32.From the above referred Judgments, it is very clear that the Hon’ble
Supreme Court has categorically held that in order to prove a charge U/Secs. 7 and 13 of Prevention of Corruption Act, 1988, the prosecution has to establish by 19 proper proof, the demand and acceptance of illegal gratification. The proof of demand of illegal gratification, thus is the gravamen of the offence U/Secs. 7 and 13 (1) (d) (i) & (ii) of Prevention of Corruption Act, 1988 and in the absence of there of, unmistakably the charge, therefore would fail.
33.In view of the evidence adduced by the prosecution and having regarding to the preposition of law laid down by the Hon’ble Supreme Court Judgments cited supra, this court is of the view that the prosecution miserably failed to prove the demand and acceptance of bribe in view of the unexplained discrepancies in
Sec.161 and 164 Cr.P.C. statements of L.W.1/complainant and securing the mediators even before conducting discrete enquiries and registration of FIR, delay in forwarding FIR to this court and the evidence of P.W.6/mediator that the ACB officials carried phenopthalin powder also with them to the place of offence and since there was no proof regarding pending of any official favour relating to
L.W.1/complainant with the Accused Officer as on the date of the alleged trap.
Further, it is established that though the Accused Officer submitted his explanation to the Investigating Officer, it was not considered and his true version was not recorded at the time of trap and hence, this court believes that the Accused Officer is entitled to benefit of doubt since there is a chance of implicating him in the pre planned trap at the instance of L.W.1/complainant. Accordingly, this point is answered.
34. POINT No.6 : Whether the prosecution is able to prove and establish the guilt of the Accused Officer No.1 for the offence punishable U/Sec.7 of
Prevention of Corruption Act, beyond all reasonable doubt?
POINT No.7 : Whether the Accused Officer No.1 being a public servant committed acts of criminal mis-conduct ?
POINT No.8 :Whether the prosecution is able to prove and establish the guilt of Accused Officer No.1 for the offence punishable U/Sec.13(2) r/w.13(1) (d) of the Prevention of Corruption Act 1988, beyond all reasonable doubt ?
20
In view of my findings on Point Nos.1 to 5, I have no hesitation to hold that the prosecution failed to prove the demand and in the absence of evidence to show that the money was paid as illegal gratification, mere recovery of money is not sufficient to convict the AO for the offence punishable U/Secs. 7 and 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 and the AO is entitled to benefit of doubt and acquittal for the said charges. Accordingly, these points are answered.
35. I n the result, Accused Officer is found not guilty of the offences punishable U/Secs. 7 and 13(2) r/w 13( 1) (d) of Prevention of Corruption Act, 1988 and accordingly, he is acquitted for the said offences U/Sec.235(1) of Cr.P.C.
The bail bonds of AO shall stands cancelled after expiry of six months from this date as per Sec.437 (a) Cr.P.C.
M.O.1 cash of Rs.10,000/-(Tainted Amount) ordered to be returned to the legal heirs of L.W.1/defecto-complainant after expiry of appeal time, if the
ACB did not reimburse the said amount to L.W.1 and in case ACB reimbursed said amount to L.W.1, above amount shall be returned to ACB after expiry of appeal time.
M.Os.2 to 8 being non-valuable properties are ordered to be destroyed after expiry of appeal.
Dictated to the Stenographer Gr.I, transcribed by him, corrected and
pronounced by me in the open Court, this the 29 th day of September, 2022.
Special Judge for SPE & ACB Cases-cum-
Addl.Metropolitan Sessions Judge, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION FOR ACCUSED
P.W.1Y.V. Ramana---NIL---
P.W.2Ch. Srinivasa Rao
P.W.3A. Srinivasa Rao
P.W.4E. Venkata Subbaiah 21
P.W.5A. Sankara Reddy
P.W.6G. Veeranna Babu
P.W.7Smt. K. Padmavathi
P.W.8R. Vijay Paul
P.W.9S.S.V. Naga Raju
P.W.10V. Gopala Krishna
DOCUMENTS MARKED ON BEHALF OF PROSECUTION: Ex.P1Memo dated 04.01.2014 Ex.P2Copy of the First Information Report Ex.P-3Pre-trap proceedings (M.R.I), dated 20.01.2014 Ex.P-4 Copy of General Diary dated 20.01.2014 Ex.P-5 Copy of Petty Cases Register dated 13.01.2014 Ex.P-6Copy Rough Duty Roster 2014 Ex.P-7Copy of Sentry relief Book 2014 Ex.P-8Post trap proceedings (M.R.II), dated 20.01.2014 Ex.P-9Original Rough Sketch, dated 20.01.2014 Ex.P-10Authorization Memo, dated 23.08.2022. Ex.P-11Sanction Order, in G.O.Ms.No.127, dated 12.08.2015. Ex.P-12Original Report dated 19.01.2014 of L.W.1/Complainant. Ex.P-13Original FIR Ex.P-14File containing 12 sheets in respect of Job Chart and service particulars etc., of the A.O.
DOCUMENTS MARKED ON BEHALF OF DEFENCE:
Ex.D1The relevant under lined portion in the Sec.161 Cr.P.C Statement of P.W.2. Ex.D2The relevant under lined portion in the Sec.161 Cr.P.C Statement of P.W.5.
MATERIAL OBJECTS
M.O.1Tainted amount of Rs.10,000/-. M.O.2Cover containing sample Sodium Carbonate Powder in pre trap proceedings M.O.3Cover containing sample phenopthalin powder in pre trap proceedings M.O.4Bottle containing resultant solution with regard to right hand fingers of A.O M.O.5Bottle containing resultant solution with regard to left hand fingers of A.O M.O.6Bottle containing resultant solution with regard to inner linings of left side pant pocket of A.O. M.O.7Sealed cover containing sample Sodium Carbonate Powder used in post trap proceedings. M.O.8Pant of A.O.
Special Judge for SPE & ACB Cases-cum-
Addl.Metropolitan Sessions Judge, Vijayawada.
22
Tabular form to be appended to the Judgment as per Rule 67 of Crl.R.P.
Calendar Case No.28 of 2011 on the file of the Special Judge for SPE & ACB Cases -cum-Additional Metropolitan Sessions Judge, Vijayawada.
1.Sessions Case No.:C.C. No.36 of 2015
2.Name of the :The State: Anti Corruption Bureau Rep.by its ComplainantRange Inspector - I, Anti Corruption Bureau, Vijayawada Range, Vijayawada.
3.Name of the Accused:Tatipaka Chandra Sekhar, S/o Rama Rao, 48 years, Sub-Inspector of Police, Agiripalli Police Station, Krishna District.
4. Date of:
a) Offence: prior to 20.01.2014
b) Complaint: 19.01.2014
c) Apprehension of : 20.01.2014 Accused
d) Released on Bail: 17.02.2014
d) Commencement of : trial: 12.07.2022
e) Closure of trial: 27.09.2022
f) Sentence or Order 29.09.2022
5.Sentence or Order:I n the result, Accused Officer is found not guilty of the offences punishable U/Secs. 7 and 13(2) r/w 13( 1) (d) of Prevention of Corruption Act, 1988 and accordingly, he is acquitted for the said offences U/Sec.235(1) of Cr.P.C. The bail bonds of AO shall stands cancelled after expiry of six months from this date as per Sec.437 (a) Cr.P.C.
M.O.1 cash of Rs.10,000/-(Tainted Amount) ordered to be returned to the legal heirs of L.W.1/defecto-complainant after expiry of appeal time, if the ACB did not reimburse the said amount to L.W.1 and in case ACB reimbursed said amount to L.W.1, above amount shall be returned to ACB after expiry of appeal time.
M.Os.2 to 8 being non-valuable properties are ordered to be destroyed after expiry of appeal.
6.Explanation for delay: This case was taken on file on 12.11.2015 as
C.C.No.36/2015 on the file of this Court. On appearance, copies of documents were furnished to accused on 02.12.2015. Charges were framed against the accused on 06.06.2022. Prosecution side evidence commenced on 12.07.2022. P.Ws.1 to 10 were examined. Exs.P1 to P.14 and M.Os.1 to 8 were marked for the Prosecution. Prosecution side evidence was 23 closed on 15.09.2022. Exs.D1 and d2 were marked for the accused officer. Accused Officer was examined
U/s.313 Cr.P.C on 19.09.2022. Arguments were heard finally on 27.09.2022. Judgment pronounced on 29.09.2022. The delay is caused due to non-production of witnesses by the Prosecution at the stage of trial on several adjournments and this court is kept vacant without regular Presiding Officer for considerable period. Hence, the delay.
Special Judge for SPE & ACB Cases-cum-
Addl.Metropolitan Sessions Judge, Vijayawada.
Copy submitted to
The Registrar (Judicial), Hon’ble High Court of Andhra Pradesh, Nelapadu, Amaravathi, Guntur District.
Copies to :
1. The Special Public Prosecutor, Anti Corruption Bureau, Vijayawada Range.
2. The District Inspector , Anti Corruption Bureau, Vijayawada Range, Vijayawada.