THE HON'BLE SRI JUSTICE K.SURESH REDDY
CRIMINAL APPEAL No. 1652 of 2006
JUDGMENT:
Questioning the conviction and sentence passed by the Special Judge for SPE & ACB Cases, Vijayawada (for short, 'the trial Court'), in C.C.No.17 of 2003, dated 13.11.2006, the appellant/Accused- Officer (for short, 'A.O.') preferred the present appeal.
2. The appellant/A.O., was tried by the trial Court under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (for short, 'the Act'). After completion of trial, the trial Court convicted the appellant/A.O., and sentenced him to suffer rigorous imprisonment for a period of one (01) year and also to pay a fine of Rs.2,500/-, in default to suffer simple imprisonment for three (03) months, under two counts. Both the substantive sentences were directed to run concurrently.
3. Brief facts enumerated from the evidence of prosecution witnesses is as follows :
(i) The appellant/A.O, was working as Junior Assistant B.Tech Section, Controller of Examinations, Nagarjuna University, Nambur, Guntur District, and he is a public servant within the meaning of Section 2 (c) of the Act.
KSR, J.
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(ii) P.W.7 is a Bachelor of Engineering Graduate from Bapatla Engineering College, Bapatla, Guntur District, during the period from 1994 to 2000. On 18.10.2001 he approached the appellant/A.O., and requested him to include sessional marks of 1998. Then, the appellant/A.O., demanded an amount of Rs.200/- for issuing marks list and Rs.200/- for issuing Provisional Certificate as bribe. On 03.11.2001, once again P.W.7 approached the appellant/A.O., and reiterated his request and the appellant repeated his demand of bribe of Rs.400/- and directed him to bring the said bribe amount on the morning of 5.11.2001 to his office. P.W.7 reluctantly agreed to pay the bribe of Rs.400/- and as he is not willing to pay the same, he approached Anti-Corruption Bureau officials.
(iii) On 03.11.2001 at about 11.00 am., P.W.9-Dy.S.P., ACB, Vijayawada Range, Vijayawada, received Ex.P12 written report from P.W.7 and entrusted the same to Range-Inspector-I, ACB, Vijayawada, for causing discreet enquiries. Thereafter, Range- Inspector-I caused enquiries against A.O., as well as P.W.7 and made an endorsement on Ex.P12.
(iv) On receipt of Ex.P12 from Range-Inspector-I, P.W.9 registered a case in Cr.No.19/ACB-VJA/01 under Section 7 of the Act. Ex.P13 is the original FIR. On the same day, P.W.9 called KSR, J.
Crl.A.No.1652_2006 3 P.W.7 and mediators i.e., P.W.6 and another to his office, introduced P.W.7 to the mediators. On further instructions, P.W.7 produced 4 Rs.100/- denomination notes, which is proposed to be paid towards bribe to A.O. The mediators noted down the serial numbers of currency notes in Ex.P4-Pre-trap proceedings. At that time, P.W.9 called L.W.2-Anil Kumar, brother of P.W.7 and introduced him to the mediators. After complying the formalities, Ex.P4-Pre-trap proceedings have been concluded.
(v) At about 11.30 am., P.W.9 along with trap laying party and P.W.7 & L.W.2 proceeded in two cars to Nagarjuna University, Guntur and reached their at about 12.00 noon. The vehicles were stopped at a distance of 100 meters from the office of A.O.,. P.W.9 instructed P.W.7 to go to the office of A.O., and on further demand only, pay the tainted currency. After paying the same, P.W.7 was instructed to relay the signal. P.W.9 asked L.W.2 also to accompany P.W.7. Thereafter, P.W.7 along with L.W.2 entered into the office of the appellant/A.O., and found him attending his duties at his seat. On noticing P.W.7, the appellant/A.O., enquired him whether he has brought the demanded bribe amount and he gave affirmative reply and paid the tainted currency to the appellant/A.O., Then, the appellant asked to get KSR, J.
Crl.A.No.1652_2006 4 Xerox copy of challan and no dues certificate. Immediately, P.W.7 and L.W.2 came out of the office and relayed pre-arranged signal.
(vi) Immediately, P.W.9 along with trap laying party went into the office of the appellant/A.O., and disclosed their identity. P.W.9 conducted Phenolphthalein test on both the hands of the appellant/A.O., which proved 'Positive'. When P.W.9 questioned the appellant/A.O., the latter produced tainted currency by picking out from his left side shirt pocket. The trap laying party verified the serial numbers of the tainted currency mentioned in Ex.P4-Pre-trap proceedings. Thereafter, the inner linings of shirt pocket of the appellant were also subjected to Chemical test, which proved 'Positive'. P.W.9 seized the tainted currency under the cover of Ex.P10-Post trap proceedings. When P.W.9 questioned about the tainted currency, he stated that P.W.7 forcibly thrusted the tainted currency into his shirt pocket and went away. The said explanation was recorded in Ex.P10-Post trap proceedings. Thereafter, P.W.9 prepared a rough sketch-Ex.P9 and recorded the statements of other witnesses. After completion of investigation and after obtaining sanction orders Ex.P1, P.W.4-Range-Inspector-II, ACB, Vijayawada, filed charge sheet.
4. In support of its case, the prosecution examined P.Ws.1 to 9 and marked Exs.P1 to P13 apart from exhibiting M.Os.1 to 8.
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5. After closure of the prosecution evidence, the appellant/A.O was examined under Section 313 Cr.P.C., by explaining the incriminating evidence against him. Appellant/AO denied the incriminating evidence. No oral and documentary evidence adduced on behalf of the defence.
6. Learned Special Judge having considered the entire evidence on record, convicted and sentenced the appellant/A.O, as stated above. Aggrieved by the same, the appellant/A.O, filed the present appeal.
7. Heard Sri C.Mastan Naidu, learned senior counsel for the appellant/A.O, and Smt. A.Gayatri Reddy, learned Standing Counsel for A.C.B-cum-Special Public Prosecutor.
8. Learned senior counsel for the appellant/A.O, strenuously contended that P.W.7 has not submitted the application through proper channel and it was directly given to the appellant/A.O., and there was no initial of the appellant/A.O on the said application. He further contends that as P.W.7 did not submit any application, question of demanding of bribe does not arise. He also argued that the prosecution deliberately withhold the accompanying witness i.e., L.W.2-Anil Kumar, for the best reasons known to them. Finally, he KSR, J.
Crl.A.No.1652_2006 6 contended that the defence of the appellant/A.O., is that P.W.7 forcibly thrusted the tainted currency into the shirt pocket of the appellant and left the office. The said explanation was also recorded in Ex.P10-Post-trap Proceedings. Therefore, he prays to set aside the conviction and sentence passed by the trial Court.
9. On the other hand, learned Special Public Prosecutor submitted that P.W.7 submitted his application directly to the appellant/A.O., on 18.10.2001, which was elicited by the defence in the cross-examination and it is only for that reason, the appellant/A.O., demanded bribe of Rs.400/-. She further contends that the application Ex.P5 was recovered from the appellant/A.O., by the Investigating Agency. She further contended that the prosecution is able to prove the initial demand and further demand on the date of trap. Further, she contended that the chemical test conducted on both the hands of the appellant/A.O., proved 'Positive'. So far as theory of thrusting is concerned, there was no hue and cry by the appellant and further he did not threw the tainted currency and non-examination of L.W.2 is not fatal to the case of prosecution as P.W.7 supported the case of prosecution.
10. This Court perused the entire evidence on record. P.W.7 in his Chief-examination has specifically stated about the demand KSR, J.
Crl.A.No.1652_2006 7 made by the appellant/A.O., on 18.10.2001 and also on 02.11.2001 and on the date of trap i.e., on 05.11.2001. P.W.7 specifically stated in his evidence that on the date of trap, he filled the application and submitted challan along with his application to the appellant/A.O., On the date of trap, on seeing P.W.7, the appellant enquired P.W.7 whether he brought the demanded bribe amount. In the above circumstances, this Court has no hesitation in coming to the conclusion that the prosecution is able to prove the factum of demand and further demand by the appellant/A.O.,
11. Coming to the recovery of money from the appellant, it is the specific case of P.W.9 & P.W.6 that Chemical test conducted on both the hands of the appellant/A.O., proved 'Positive'. But, the appellant/A.O., pleaded the theory of thrusting. As seen from the evidence, chemical test conducted on both the hands of the appellant/A.O., proved 'Positive'. If really, it is a case of thrusting, test conducted on both the hands of the appellant/A.O., may not be proved 'Positive'. Further, the conduct of the appellant/A.O., has also to be looked into. If really, P.W.7 thrusted the tainted currency into the shirt pocket of the appellant, he should have made hue and cry and threw the tainted currency, but that was not done in the present case on hand. Further, the appellant/A.O., has not adduced any rebuttal evidence for presumption under Section 20 of the Act.
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12. In view of the above evidence on record, the prosecution is able to prove the demand and acceptance on the part of the appellant/A.O. Further, minor omissions and contradictions in the evidence of P.W.7 will not affect the substratum of the prosecution case. In such circumstances, there are no grounds to interfere with the conviction and sentence recorded by the learned Special Judge and the same is dismissed as devoid of merit.
13. IN THE RESULT, the criminal appeal is dismissed as devoid of any merit and the conviction and sentence recorded by the Special Judge for SPE & ACB Cases, Vijayawada, in C.C.No.17 of 2003, dated 13.11.2006, is hereby confirmed.
Pending miscellaneous applications, if any, shall stand closed in consequence.
___________________ K.SURESH REDDY, J.
6th day of May,2022.
RPD KSR, J.
Crl.A.No.1652_2006 9 06 THE HON'BLE SRI JUSTICE K.SURESH REDDY CRIMINAL APPEAL No. 1652 of 2006 DATE: 06.05.2022 RPD