Andhra Pradesh High Court - Amravati
Sri Hari Naik, vs State Of A.P., Rep By Spl. Pp., on 2 January, 2024
Author: K. Sreenivasa Reddy
Bench: K. Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Appeal No.404 of 2009
JUDGMENT:
This Criminal Appeal has been preferred against the judgment dated 28.03.2009 passed in CC No.17 of 2004 by the learned Special Judge for ACB Cases, Visakhapatnam.
2. The sole accused officer is the appellant herein. He was tried for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). By his judgment dated 28.03.2009, the learned Special Judge found the accused officer guilty of the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act and, accordingly convicted and sentenced him to undergo rigorous imprisonment for a period of six (6) months and also to pay fine of Rs.500/- (Rupees Five Hundred only), in default to suffer simple imprisonment for one month for the offence under Section 7 of the Act, and sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.1,000/- (Rupees One Thousand only), in default to suffer simple imprisonment for two (2) months, for the offence under Section 13 (1) (d) punishable under Section 13 (2) of the Act. Both the substantive sentences were directed to run concurrently and MO.3 (tainted amount of Rs.6,000/-) 2 SRK, J Crl.Appeal No.404 of 2009 was ordered to be returned to PW.3 and MOs.1 and 4 to 8 were ordered to be destroyed after expiry of appeal time.
3. The substance of the charges against the accused officer is that he, being a public servant within the meaning of Section 2(c) of the Act, working as Building Inspector in the Municipal Corporation, Visakhapatnam, on 26.12.2003, at about 14.00 hours, in the residential premises of the house bearing D.No.20-211/5/5, Kothapalem, Gopalapatnam, belonging to PW.3, demanded and accepted a sum of Rs.6,000/- from PW.3 as gratification other than legal remuneration for showing official favour for not initiating action against PW.3 and not harassing him in construction of house in Kothapalem village, Gopalapatnam without any approved plan and thereby committed an offence punishable under Section 7 of the Act. In the course of same transaction, the accused officer, being a public servant, obtained pecuniary advantage to an extent of Rs.6,000/- from PW.3 and thereby committed the offence punishable under Section 13(1)(d) read with 13(2) of the Act.
4. Case of the prosecution, in brief, is that, the father of the de facto complainant (PW.3) purchased house site admeasuring 300 sq. yards at Kothapalem, Gopalapatnam in the year 1996 in the name of his children i.e. the de facto complainant, his sister and brother. In the year 1997, they constructed a terraced building in the house site 3 SRK, J Crl.Appeal No.404 of 2009 without sanctioned plan. On 22.11.2003, the accused officer inspected the building of the de facto complainant and asked him to come to his office as the building was constructed without approved plan. Accordingly, on 24.11.2003, the de facto complainant went to the office and met the accused officer, who advised the de facto complainant to draw the house building plan with the help of licensed Surveyor. Later, on 11.12.2003, the accused officer went to the house of the de facto complainant and informed that an amount of Rs.40,000/- was required to approve the plan and instead of that he demanded bribe amount of Rs.20,000/- with an assurance that he could manage the other officials in the Corporation. On bargaining, the accused officer reduced the bribe amount from Rs.20,000/- to Rs.6,000/- and asked the de facto complainant to keep the said amount ready by 26.12.2003. As the de facto complainant was not willing to pay the said bribe amount, he approached the ACB Police on 25.11.2003 and filed Ex.P6 written complaint. On receipt of the said complaint, PW.6, the then Deputy Superintendent of Police, ACB registered a case in Crime No.19/RC-WLR/2003 of ACB Police Station, Visakhapatnam and prepared pre-trap proceedings Ex.P9. On 26.12.2003, at about 14.00 hours, the accused officer came to the house of the de facto complainant, demanded the bribe amount and accepted the tainted currency notes of Rs.6,000/- from him as illegal remuneration for not initiating action against his building. Meanwhile, 4 SRK, J Crl.Appeal No.404 of 2009 the trap laying party reached there and conducted Sodium Carbonate solution test on both hand fingers of the accused officer, which proved positive. The accused officer produced tainted amount from his left side shirt pocket and the chemical test conducted on the inner lining of the shirt pocket of the accused officer also proved positive. PW.7 the Inspector of Police, ACB, Visakhapatnam took up further investigation and after obtaining prosecution sanction orders and completion of investigation, he filed charge sheet against the accused officer for the aforesaid offences.
5. On appearance of accused officer, copies of documents were furnished to him as required under Section 207 Cr.P.C. and thereafter, charges under Sections 7 and 13(1)(d) read with 13(2) of the Act were framed against the accused officer, read over the contents and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
6. In support of its case, the prosecution examined PWs.1 to 7 and got marked Exs.P1 to P13 and MOs 1 to 8.
7. After closure of the prosecution evidence, accused officer was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of prosecution witnesses, for which he denied. He reported no defence witnesses on his behalf, except marking Ex.D1 receipt. He filed his written statement, under 5 SRK, J Crl.Appeal No.404 of 2009 Section 243(1) Cr.P.C., by denying the alleged demand and acceptance of tainted amount as bribe and by stating as follows.
"He worked as Town Planning and Building Overseer (Building Inspector) for Ward No.44 of Municipal Corporation, Visakhapatnam. His duty is to check the unauthorized constructions in his jurisdiction and he used to visit newly constructed buildings in Ward No.44. He found the house bearing No.19-207 in S.No.105/2 constructed without permission and sanction plan and came to know that the building is belongs to PW.3. He advised PW.3 twice to apply building permission plan. He failed to apply building plan as such he informed that notice under Section 461 of HMC Act would be issued for demolition of unauthorized construction. Thereupon, PW.3 requested him for same time to apply for building plan, but PW.3 did not apply for building plan in spite of passing time. On 26.12.2003 at 2.00 pm he was passing through the house of PW.3 on Motor Cycle. PW.3 clapped and called him to his residence, he parked the Motor Cycle in front of the house and entered into the portion of the house of PW.3. PW.3 gave an amount of Rs.6,000/- to him informing that the said amount is repaying towards part of outstanding loan amount of Rs.10,000/- which was borrowed from him in the month of September, 2003. He counted the amount and kept the amount in the shirt pocket. PW.3 informed him that the balance amount of Rs.4,000/- will be paid near future. He left the premises of the house and came near to his Motor 6 SRK, J Crl.Appeal No.404 of 2009 Cycle and about to start the Motor Cycle meanwhile some unidentified officials came and caught hold his both hands and took him to the house of PW.3. He was questioned about the received amount and he narrated that he received the amount towards part payment of borrowed loan amount. The ACB officials conducted chemical test on his both hand fingers but he do not know the results of solution he was arrested by the ACB Police."
"It is further submitted in the written statement that one D.V. Satyanarayana is the friend of him and on the request of said Satyanarayana he provided Rs.10,000/- to PW.3 and PW.3 acknowledged the received loan of Rs.10,000/- and acknowledgment was given to Satyanarayana. He collected Ex.D1 acknowledgment from Satyanarayana. Subsequently, he came to know that borrower Manoj Kumar is PW.3 who is the owner of house bearing No.19-207. PW.3 anticipated that he will issue notice under Section 461 of HMC Act for demolition of building, as such false complaint is made and false trap is arranged. It is further submitted that Ex.P5 is prosecution sanction order is invalid."
8. The learned Special Judge, on appreciation of entire oral and documentary evidence on record, found the accused officer guilty of the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act and, accordingly, convicted and sentenced him as aforesaid. Against 7 SRK, J Crl.Appeal No.404 of 2009 the said conviction and sentence, the present Criminal Appeal has been preferred.
9. Learned counsel appearing on behalf of the appellant/accused officer submits that the evidence of prosecution witnesses is inconsistent with each other. According to him, PW.3, the decoy, gave a complete go-by to what has been deposed by him in his chief- examination. The learned Special Judge failed to see that the amount was towards repayment of loan given by the accused officer to one Satyanarayana, who in turn gave the money to PW.3. He strenuously contended that Ex.D1 is the receipt issued by PW.3 towards loan taken by him and he admitted his signature on Ex.D1 and basing on the same, learned counsel contended that the learned Special Judge erred in convicting the accused officer.
10. On the other hand, Smt. A. Gayatri Reddy, learned Standing Counsel for ACB-cum-Special Public Prosecutor, strenuously contended that the loan theory propounded by the accused officer is an afterthought and the same has been brought into existence at a belated stage. She submits that if really the amount has been borrowed from the accused officer through D.V. Satyanarayna and the same has been paid to PW.3, nothing stopped the accused officer in getting the said D.V. Satyanarayana examined on his behalf, but no effort has been made by the accused officer in doing so. Apart from 8 SRK, J Crl.Appeal No.404 of 2009 the same, it is the version of the ACB officials that on seeing them the accused officer ran away from the place of offence and ACB officials caught hold of him by chasing. If the theory propounded by the accused officer with regard to loan is true, there is no reason as to why the accused officer has to run away from the scene of offence on seeing the ACB officials. Learned Special Public Prosecutor, on the aforesaid grounds, contended that the learned Special Judge is right in convicting the accused officer, which calls for no interference by this Court.
11. Heard both sides.
12. The point that arises for consideration is whether the prosecution has proved the guilt of the accused officer beyond all reasonable doubt for the charges leveled against him.
13. The prosecution case is that the accused officer was working as Building Inspector in Visakhapatnam Municipal Corporation on the date of the trap. The Visakhapatnam Municipal Corporation is a public office and the accused officer comes within the meaning of public servant under Section 2(c) of the Act. PW.1 is the Assistant City Planner. He speaks about the duties of the Town Planning Building Overseer (accused officer) and issuance of Ex.P1 notice and handing over of made-up file Ex.P2 to the Investigating Officer. 9
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14. PW.2 is the Director, Town and Country Planning and he speaks that after verifying the report and material papers submitted by the ACB police, he issued Ex.P5 prosecution sanction proceedings to prosecute the accused officer.
15. PW.3 is the de facto complainant. His evidence is about the demand and acceptance of bribe amount by the accused officer. He states that on 22.11.2003, the accused officer came to his house and enquired with regard to sanctioned plan of the building. Thereafter, the accused officer went away by informing him to meet him in the office. On 24.11.2003, PW.3 went to the Municipal office and met the accused officer. The accused officer instructed him to get the house plan prepared with the licensed Surveyor and thereafter plan would be approved by the office. In the month of December, 2003, the accused officer came to his house and enquired about the preparation of house plan. He replied that no house plan was prepared. Thereafter, the accused officer informed him that Rs.40,000/- is required to prepare the plan and asked him to pay Rs.20,000/-, so that he would manage in the office. Thereafter, the said bribe amount was reduced to Rs.10,000/- and further to Rs.6,000/-. The accused officer further informed PW.3 that unless he pays the amount of Rs.6,000/-, he would continue to harass him and he would take steps to dismantle the house. In connection with that, the accused officer also shouted 10 SRK, J Crl.Appeal No.404 of 2009 against him, due to which he approached the ACB Police and filed a written complaint Ex.P6.
16. PW.4 is the Mason by profession. He did not support the prosecution case and he was treated as hostile by the prosecution.
17. PW.5 is the mediator. He concurs with the version of PW.3 and speaks about the pre-trap and post-trap proceedings. According to him, he attested the pre-trap and post-trap proceedings Ex.P9 and Ex.P12 respectively.
18. PW.6 is the Deputy Superintendent of Police, ACB, Visakhapatnam. He registered a case in Crime No.19/RC/WLR/2003 of ACB Police Station, Visakhapatnam, based on the complaint given by PW.3. He conducted pre-trap and post-trap proceedings and laid the trap. Thereafter, PW.6 recovered the tainted amount of Rs.6,000/- from the shirt pocket of accused officer. On conducting chemical test, both the hand fingers and the inner lining of shirt pocket of the accused officer turned positive. PW.6 prepared rough sketch of the scene of offence i.e. Ex.P10, and seized Ex.P11- identity card of the accused officer and thereafter he arrested the accused officer. Later, PW.7 took up further investigation.
19. PW.7, Inspector of Police, ACB, Visakhapatnam, examined the witnesses and recorded their statements and on receipt of relevant 11 SRK, J Crl.Appeal No.404 of 2009 documents from the office and prosecution sanction orders, he filed charge sheet against the accused officer.
20. On a perusal of the entire material on record goes to show that there is no dispute with regard to the fact that the tainted amount of Rs.6,000/- was recovered from the possession of the accused officer. The contention of the learned counsel appearing on behalf of the appellant/accused officer is that the amount that was recovered from the accused officer is a loan amount received from PW.3. The theory of loan amount has been culled out at a belated stage, wherein the accused officer has come up with a theory that he paid an amount of Rs.10,000/- to one Satyanarayana, who in turn paid the said amount to PW.3 in order to construct a compound wall around the house of PW.3. In connection with that, it is elicited in the evidence of PW.3 that on receiving the amount from D.V. Satyanarayana, PW.3 executed the acknowledgment Ex.D1. The acknowledgment dated 26.09.2003 was confronted to PW.3 by the defence counsel. The witness identified his signature on the said acknowledgment. Even accepting the said version, the acknowledgment shows to the extent that the money was received by PW.3 from one Satyanarayana. Except that, there is nothing to show in the acknowledgment that the money was taken from the accused officer by Satyanarayana. It is true that PW.3 received money from Satyanarayana and in connection with that he 12 SRK, J Crl.Appeal No.404 of 2009 signed on the acknowledgment Ex.D1, and PW.3 does not dispute with regard to his signature on the said acknowledgment. At a belated stage, during the evidence, the loan theory has been culled out in such a way that the amount of Rs.10,000/- was given by the accused officer to Satyanarayana in order to pay the same to PW.3. If really such is the situation, there is no reason as to why the said Satyanarayana has not been examined at least on behalf of the accused officer. No such attempt has been made by the accused officer to prove his loan theory. Except stating that the amount was borrowed by Satyanarayana from the accused officer and paid to PW.3, there is no other proof forthcoming in order to prove the theory of loan payment. PW.3 stated in his cross-examination that in the month of December 2003 he came to know that the name Hari Naik mentioned in Ex.D1 and the accused officer are one and the same. In the second week of December 2003, the accused officer demanded the amount pertains to amount covered under Ex.D1. PW.3 has categorically stated that he did not repay the borrowed amount under Ex.D1 till date. Even accepting the said theory, PW.3 has consistently stated that the accused officer has made a demand of Rs.40,000/- in getting the building plan approved. Twice, the accused officer went to the house of PW.3 in making the aforesaid demand. On negotiations, the demanded amount was reduced from Rs.40,000/- to Rs.20,000/- and to Rs.10,000/-. When PW.3 expressed his inability to pay the said 13 SRK, J Crl.Appeal No.404 of 2009 amount, it was further reduced to Rs.6,000/- and the accused officer has categorically stated that until and unless the amount of Rs.6,000/- has been paid, he would continue harassing PW.3. If really the amount was paid to PW.3 through Satyanarayana, the question of demanding an amount of Rs.40,000/- and reducing it to Rs.6,000/- would not arise.
21. Apart from the same, on the date of trap, the accused officer was present in the house of PW.3 and when the said amount was accepted, ACB officials entered into the house of PW.3. Both PWs.5 and 6 categorically stated that on seeing them, the accused officer ran away from the place and he was caught at a distance of 100 yards from the scene of offence. If really, the loan theory propounded by the accused officer is true, there is no reason as to why the accused officer ran away from the place. The evidence of PW.3 before the Court is that he does not know the accused officer at the time of execution of Ex.D1. The said Ex.D1 was introduced for the first time during the cross-examination of PW.3 and the same was confronted to him. The chief examination of PW.3 was recorded on 20.01.2009 after 5.00 pm and cross-examination was deferred to next day and PW.3 was cross-examined on 21.01.2009. It shows that taking advantage of one day gap, the loan theory has been introduced. The defence could 14 SRK, J Crl.Appeal No.404 of 2009 not examine D.V. Satyanarayana through whom amount was received by PW.3 during construction of compound wall.
22. The statement of PW.3 was recorded under Section 164 Cr.P.C. by the Magistrate and PW.3 admitted his signature on Section 164 Cr.P.C. statement. Neither in the previous statement nor in the complaint nor in the statement given before the Magistrate under Section 164 Cr.P.C., PW.3 disclosed about Ex.D1 and borrowing of amount from accused officer through Satyanarayana. However, the evidence of PW.3 is clear that without knowing the person from whom Satyanarayana procured the amount, he executed Ex.D1 acknowledging the amount from Satyanarayana. Apparently, Ex.D1 would not take away the case of the prosecution and would not destroy the evidence of PW.3 which is corroborated by the evidence of PWs.5 and 6.
23. Learned counsel for the appellant has relied upon a decision reported in Suraj Mal v. the State (Delhi Administration)1, wherein the Hon'ble Supreme Court observed that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. 1 1979 AIR (SC) 1408 : 1979 CrLJ 1087: 1979 (4) SCC 725. 15
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24. In the above referred case, the appellant was falsely implicated and on a perusal of facts of that case goes to show that nothing was recovered from the possession of the appellant and there is no evidence of demand of bribe. On that note, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances i.e. with regard to non-recovery of money and absolutely no payment made by the decoy witness, the Hon'ble Apex Court came to a conclusion that in the absence of special circumstances no conviction can be passed on such evidence.
25. But, in the present case on hand, the evidence of PW.3 is consistent that there is demand by the accused officer on two occasions prior to the date of trap and the demand has been reduced on negotiations from Rs.40,000/- to Rs.6,000/- and on the date of incident, PW.3 paid the amount on demand made by the accused officer. Thereafter, on the pre-arranged signal given by PW.3, the police officials rushed to the scene of offence. On seeing them, the accused officer ran away from the scene of offence, which goes to show that the accused officer, in a perplex state, tried to skulk away from the scene of offence. At the cost of repetition, if really the accused officer had taken the borrowed amount from PW.3, there was 16 SRK, J Crl.Appeal No.404 of 2009 no necessity for him to run away from the place of offence. The amount accepted by the accused officer has been recovered from his shirt pocket by PW.6. PWs.5 and 6 have consistently stated to that extent. The only hinge crocks up to the extent that PW.3 stated that the accused officer has not run away, but he was on his motor cycle kicking the rod to start the vehicle. This minor inconsistency would not go to the root of the case. What has to be seen in the aforesaid offences is whether there is any demand on the date of offence and whether the amount has been accepted or not and in pursuant to that whether the said amount has been recovered from the possession of the accused officer or not. Admittedly, going by the evidence of PW.3 which is corroborated by the evidence of PWs.5 and 6, apparently on the face of it, the bribe amount was accepted on demand made by the accused officer and the same was recovered from his shirt pocket.
26. Learned counsel for the appellant also relied upon a decision reported in State of Kerala v. C.P. Rao2, wherein the Hon'ble Supreme Court held thus.
"In the background of these facts, especially the non- examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi Vs. State of Maharashtra, (1979(4) SCC 526) wherein a Three-Judge 2 (2011) 6 SCC 450 17 SRK, J Crl.Appeal No.404 of 2009 Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on............."
27. In the aforesaid judgment relied upon by the learned counsel for the appellant, it was held that when there was no corroboration of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on.
28. Coming to the case on hand, apparently, on the date of incident and prior to that, accused officer made a demand of bribe amount and the version of PW.3 is consistent in his chief-examination and as well in the cross-examination. His evidence has not been shattered by the defence in connection with demand of money. It is pertinent to mention here that no suggestion was made to PW.3 by the defence to the extent that no demand has been made by the accused officer. In the absence of that and when the version given by PW.3 is consistent, the same cannot be brushed aside. It is also pertinent to mention here that on the date of alleged incident i.e. on 26.12.2003, at about 14.00 hours, the accused officer went to the house of the de facto complainant, demanded the bribe amount and accepted the tainted 18 SRK, J Crl.Appeal No.404 of 2009 currency notes of Rs.6,000/- from him as illegal remuneration for not initiating action against his building. Meanwhile, the trap laying party reached there and conducted Sodium Carbonate solution test on both hand fingers of the accused officer, which proved positive. The accused officer produced tainted amount from his left side shirt pocket and the chemical test conducted on the inner lining of the shirt pocket of the accused officer also proved positive. In view of the same, the aforesaid rulings submitted by the learned counsel for the appellant are not applicable to the present facts and circumstances of the case.
29. In view of the aforesaid reasons, I am of the considered opinion that the learned Special Judge, on proper appreciation of the entire oral and documentary evidence on record and taking all the above aspects into consideration, has rightly found the accused officer guilty of the charges leveled against him and, accordingly, convicted and sentenced him as aforesaid and I see no reasons to interfere with the same. The Criminal Appeal is devoid of merit and the same is liable to be dismissed.
30. Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 28.03.2009 passed in CC No.17 of 2004 by the learned Special Judge for ACB Cases, Visakhapatnam. The accused officer is directed to surrender before the trial Court to serve the remaining sentence, if any.
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SRK, J Crl.Appeal No.404 of 2009 As a sequel thereto, the miscellaneous applications, if any, pending in this Criminal Appeal shall stand closed.
_____________________ K. SREENIVASA REDDY, J Date:02.01.2024 Nsr/DRK 20 SRK, J Crl.Appeal No.404 of 2009 THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.404 of 2009 02.01.2024 Nsr/DRK