THE HON'BLE SRI JUSTICE K.SURESH REDDY
CRIMINAL APPEAL No. 1011 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.33 of 2000, dated 27.06.2006, the appellant/Accused- Officer No.1 (for short, 'A.O.1') preferred the present appeal.
2. The appellant/A.O.1 along with Accused Officer No.2 (for short A.O.2) were charge-sheeted under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (for short, 'the Act') r/w 34 IPC. During pendency of trial, Accused Officer No.2 died on 13.06.2006, hence the case against him abated.
3. The appellant/A.O.1., 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') r/w 34 IPC. After completion of trial, the trial Court convicted the appellant/A.O.No.1, and sentenced him to suffer rigorous imprisonment for a period of two (02) years and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for three (03) months, under two counts. Both the substantive sentences were directed to run concurrently.
KSR, J.
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4. Brief facts enumerated from the evidence of prosecution witnesses is as follows :
(i) The appellant/A.O.1, was working as Senior Accountant in Sub-Treasury Office, Kanchikacherla, whereas A.O.2 was working as Sub-Treasury Officer, Kanchikacherla and they are public servants within the meaning of Section 2 (c) of the Act.
(ii) P.W.3-defacto-complainant was working as Senior Accountant in Primary Health Centre, Veerulapdu and he used to look after the treasury work of his office. On 25.11.1998 P.W.3 submitted T.A. bills of their staff along with Fixed Travelling Allowance (for short 'F.T.A') bills. The appellant/A.O.1 sanctioned the F.T.A. bills on the same day and kept T.A bills pending, which are marked as Exs.P1 to P8. When P.W.3 enquired about the same, the appellant/A.O.1 demanded him to pay 5% commission as bribe. When P.W.3 approached A.O.2, he also supported the version of A.O.1. P.W.3 reluctantly agreed to pay the bribe of Rs.450/- i.e., 5% of T.A bills. Thereafter, P.W.3 went to the bank and encashed the F.T.A bills. P.W.3 informed about the demand made by A.Os.1 & 2 to P.W.1-Medical officer, Primary Health Centre, Veerulapadu, who did not agree to pay the bribe amount stating that they are also public servants. As P.W.3 is not willing to pay bribe amount, he approached P.W.11-Dy.S.P., ACB, Vijayawada Range, at about 8.00 KSR, J.
Crl.A.No.1011_2006 3 am., on 27.11.1998 and presented Ex.P21 written report against A.Os.1&2, who endorsed the same to P.W.12-Inspector, ACB, Vijayawada for causing discreet enquiries. P.W.12 caused enquiries against A.Os.1 & 2 as well as P.W.3 and made an endorsement on Ex.P21.
(iii) Later, on 28.11.1998 at about 8.00 am., after receipt of Ex.P21 from P.W.12, P.W.11 registered a case in Cr.No.33/ACB-VJA/1998 under Section 7 of the Act. Ex.P36 is the original FIR. On the same day, at about 8.30 am., P.W.11 called P.W.3 and mediators i.e., P.W.7 and another to his office, introduced P.W.3 to the mediators. On further instructions, P.W.3 produced 4 Rs.100/- denomination notes and 1 Rs.50/- denomination note, which is proposed to be paid towards bribe to A.Os.1 & 2. After complying the formalities, Ex.P26-Pre-trap proceedings have been concluded.
(iv) At about 9.45 am., P.W.11 along with trap laying party and P.W.3 proceeded to Kanchikacherla and reached Ambedkar Statue Centre at 10.45 am., P.W.11 reiterated his earlier instructions to P.W.3 that pay the tainted currency to A.O.1 on his further demand. Then, P.W.3 approached A.O.1, who was attending his duties at his seat. P.W.3 sat in a chair, which is opposite to the chair of A.O.1 and enquired about the passing of T.A bills. Then, KSR, J.
Crl.A.No.1011_2006 4 A.O.1 asked P.W.3 whether he has brought the proposed bribe amount, for which, the latter gave positive reply. Then, P.W.3 gave the tainted currency of Rs.450/- to A.O.1, who took it and counted the same. He kept Rs.200/- in his shirt pocket and gave remaining Rs.250/- to A.O.2. Thereafter, A.O.1 came back to his seat and passed orders on TA bills and sent the same for approval of A.O.2. Immediately, P.W.3 came out and relayed pre-arranged signal.
(v) Immediately, P.W.11 along with mediators rushed to the office of A.O.1 and introduced themselves to him. He conducted phenolphthalein test on A.O.1, which proved 'Positive'. P.W.11 asked A.O.1 to produce the bribe amount and he produced 2 Rs.100/- denomination notes from his left side shirt pocket. The shirt pocket of A.O.1 was also subjected to phenolphthalein test, which proved 'Positive'. Then, P.W.11 asked A.O.1 about T.A. bills, who informed that they were sent to A.O.2 for signature. Immediately, P.W.11 along with trap laying party went to the room of A.O.2 and introduced themselves. P.W.11 conducted phenolphthalein test on the right hand fingers of A.O.2, which proved 'Positive' and left hand fingers proved 'Negative'. On questioning, A.O.2 produced the tainted currency of Rs.250/- i.e., 2 Rs.100/- denomination notes and 1 Rs.50/- denomination note. P.W.11 seized the same under the cover of Ex.P31-Post-trap KSR, J.
Crl.A.No.1011_2006 5 proceedings. On questioning, A.O.2 also produced T.A Bills i.e., Exs.P1 to P8. Then, P.W.11 prepared a rough sketch as in Ex.P28 and recorded the statements of other witnesses. After completion of investigation and after obtaining sanction order, P.W.13- Inspector, ACB, Vijayawada, filed charge sheet.
5. In support of its case, the prosecution examined P.Ws.1 to 13 and marked Exs.P1 to P36 apart from exhibiting M.Os.1 to 12.
6. 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 evidence. D.W.1 was examined and Ex.D1 was marked on behalf of the appellant/A.O.1.
7. Learned Special Judge having considered the entire evidence on record, convicted and sentenced the appellant/A.O.1, as stated above. Aggrieved by the same, the appellant/A.O.1, filed the present appeal.
8. Heard Sri A.Hariprasad Reddy, learned counsel for the appellant/A.O.1, and Smt. A.Gayatri Reddy, learned Standing Counsel for A.C.B-cum-Special Public Prosecutor.
KSR, J.
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9. Learned counsel for the appellant/A.O.1, strenuously contended that there is no mention with regard to the demand by A.O.1 either in FIR or in the evidence of P.W.3. He further contended that when there is no demand initially, question of further demand does not arise. Though, the prosecution is able to prove acceptance by the appellant/A.O.1, the appellant/A.O.1 cannot be convicted merely on the basis of acceptance. Further, he argued that P.W.3 has already borrowed an amount of Rs.500/- from him and he paid the same to A.O.1 towards discharge of hand loan. He further contended that there is a delay in reaching the FIR to the Court. Finally, he contended that P.W.3 is not a reliable witness and he was suspended by the authorities on the ground of misusing and misappropriation of Family Planning Funds. He also states that as P.W.3 was related to the then S.I., by name Babu Rao, who was working in ACB and to secure re-transfer to West Godavari District, P.W.3 resorted to launch false prosecution and deposing against the appellant/A.O.1. Therefore, he prays to set aside the conviction and sentence passed by the trial Court.
10. On the other hand, learned Special Public Prosecutor submitted that the prosecution is able to prove demand as well as acceptance on the part of the appellant/A.O.1. It is only after KSR, J.
Crl.A.No.1011_2006 7 accepting the bribe, the appellant/A.O.1, put his signatures on Exs.P1 to P8 and forwarded them to A.O.2. Exs.P1 to P8 seized from A.O.2 clearly show that A.O.1 has already signed on them. She further contended that on the date of report of Ex.P21 and on the date of trap, official favour was pending with A.Os.1 & 2. She further pleaded that A.O.1 received amount of Rs.450/- and counted with both hands and keeping Rs.200/- in his pocket, handed over Rs.250/- to A.O.2. The chemical test conducted on both the hands of A.O.1 proved 'Positive', so far as, chemical test conducted on the right hand of A.O.2 only proved 'Positive'. Further, the hand loan theory put forward by the appellant/A.O.1 is highly artificial and cannot be accepted. In such circumstances, the prosecution is able to prove both demand and acceptance by the appellant/A.O.1.
11. This Court perused the entire evidence on record. P.W.3 in his evidence has given entire episode with crystal clear and there is no scope to doubt the version of P.W.3. As seen from the cross- examination of P.W.3, the suggestion that was put forward by the appellant was that he borrowed an amount of Rs.500/- from the appellant/A.O.1., on 19.11.1998 as the same was required to look after his transfer from Veerulapadu to West Godavari District. It is his further suggestion that as the appellant was not having Rs.500/-
KSR, J.
Crl.A.No.1011_2006 8 at that time, A.O.1 took Rs.250/- from A.O.2 and Rs.250/- from staff members, to lend total advance of Rs.500/- to P.W.3. As the defence case is not tenable, this loan theory is highly artificial and does not inspire confidence of this Court. Further, the suggestion made to P.W.3 that his relative, S.I. Babu Rao is working in ACB is vague and P.W.3 denied the said suggestion. So far as delay in reaching F.I.R to the Court, the same cannot affect the prosecution case in any manner. In these circumstances, the appellant/A.O.1 failed to discharge his burden rebutting the presumption under Section 20 of the Act.
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.1. In such circumstances, there are no grounds to interfere with the conviction recorded by the learned Special Judge. Finally, the learned counsel for the appellant/A.O.1 requested to take a lenient view with regard to the sentence of imprisonment alone.
13. IN THE RESULT, the criminal appeal is dismissed confirming the conviction recorded by the Special Judge for SPE & ACB Cases, Vijayawada, in C.C.No. 33 of 2000, dated 27.06.2006. However, the sentence of imprisonment alone is reduced from two (02) years to one (01) year under both the counts, while KSR, J.
Crl.A.No.1011_2006 9 maintaining the fine amount. Further, the appellant/A.O.1 is directed to surrender forthwith before the trial court to serve the remaining sentence.
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.1011_2006 10 05 THE HON'BLE SRI JUSTICE K.SURESH REDDY CRIMINAL APPEAL No. 1011 of 2006 DATE: 06.05.2022 RPD