HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1213 OF 2008
JUDGMENT:
1. The 1st appellant/Accused Officer(AO1) was convicted for the offences under Section 7 of the Prevention of Corruption Act, 1988 (for short "the Act of 1988") and sentenced to undergo rigorous imprisonment for a period of one year and also sentenced to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of three months and also sentenced to undergo rigorous imprisonment for a period of one year and also sentenced to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of three months for the offence under Section 13(1)(d) r/w 13(2) of the Act of 1988. The 2nd appellant/AO2 was convicted for the offences under Section 12 of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year and also sentenced to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of three months vide judgment in CC No.3 of 2004 dated 23.09.2008 passed by the Additional Special Judge for SPE & ACB Cases at Hyderabad. Aggrieved by the same, the present appeal is filed. 2
2. Briefly, the case of the prosecution is that AO1 was working as Junior Assistant in the office of Mandal Revenue Office at Hayathnagar. AO2 is a private writer sitting outside the MRO office. The defacto complainant/ PW1 purchased land and was in need of pahani copies. On 29.03.2003, P.W.1 went to the MRO office and submitted stamped application to MRO by enclosing an affidavit. The MRO while sending the application to AO1 asked P.W.1 to speak to her. AO1 informed that she should contact her on the coming Monday after contacting AO2. AO2 informed that an amount of Rs.3,000/- has to be paid at the rate of Rs.100/- to Rs.150/- per pahani copy. Only if bribe amount of Rs.1,000/- is paid, then the work would start. AO2 further informed that if she did not pay the bribe amount, it will take 15 to 20 days for getting copy of pahani. As P.W.1 was not willing to give bribe, she approached the ACB and lodged Ex.P1 complaint at 10.00 a.m.
3. The trap was arranged on the same day. Independent mediators P.W.2 and another along with DSP-P.W.8 and the investigating officer-P.W.9 were all part of the trap party. PW.1 produced the bribe amount of Rs.1,000/- and same was recorded in 3 the pre-trap proceedings Ex.P4. Phenolphthalein and sodium carbonate solution test was demonstrated by the constables during the said proceedings. Pre-trap proceedings commenced at 1.30 p.m and concluded at 2.30 p.m.
4. The trap party proceeded to the office of MRO and entered into the office at 4.20 p.m. At about 4.30 p.m, P.W.1 came out of the office and relayed pre-arranged signal indicating that the bribe amount was accepted. The trap party went into the office and found AO1. Before questioning AO1, P.W.1 informed the trap party that the bribe amount was accepted by AO2, who was sitting in the record room. She also informed about AO1 that she was in the MROs office busy with work and she wanted AO2 to accept the bribe amount. The DSP called for AO1 and asked to open the record room and inside record room three persons were present attending office work. The DSP then asked for AO2 and questioned whether he demanded and accepted an amount of Rs.1,000/- from P.W.1. He stated that the said amount was received on behalf of AO1. Sodium Carbonate solution was prepared and AO2 was asked to dip 4 his fingers in the said solution and when he did so, the solution turned into pink colour.
5. AO2 produced bribe amount from his pant pocket. When questioned by the DSP, AO1 stated that she does not know anything about the demand of bribe by AO2. She further stated that due to work load, AO2 and two others were working and their assistance was taken to do the office work. The concerned file was seized and post trap proceedings were concluded at 9.30 p.m in the evening. After investigation, charge sheet was laid against AOs.1 and 2.
6. The prosecution in all examined P.Ws.1 to 9 and marked Exs.P1 to P11. D.Ws.1 and 2 were examined in defence and Exs.D1 to D4 were marked as defence exhibits.
7. Learned counsel for AO1 submits that there is no mention of demand either in the complaint Ex.P1 or on the date of trap. Admittedly, AO1 joined duty 15 days prior to the trap. It is further admitted fact that some private persons were taken to work in the MRO office. It is the case of AO1 that the trap was handy work of one Chandrasekhar, who was inimically disposed to AO1. The said 5 Chandrasekhar was the person who met MRO on 25.02.2003 on behalf of PW.1 and same was admitted by P.W.4, MRO. P.W.4 further admitted that P.W.3, AO2 and one Narsing were the three persons who were working in the MRO office, who were taken as servants by 'Batabandi' system. PW.1 admitted that AO1 did not demand any amount from her. She deposed as follows: "It is true I have not specifically mentioned in the complaint that AO1 demanded me."
8. Learned counsel for AO1 further submitted that the land did not belong to PW.1, as such, the question of applying for pahani copies did not arise. That the ACB had laid trap without making any preliminary enquiries and complaint was allegedly lodged at 10.00 a.m and trap was laid within three hours i.e., at 1.00 p.m. There is no endorsement of any preliminary enquiry being conducted regarding the antecedents of AO1 or the correctness of the complaint. In the said circumstances, when demand is not proved and also on the basis of record P.W.1 was not the owner of any property, the appeal has to be allowed and conviction set aside. 6
9. On behalf of AO2, learned counsel submits that during the course of Section 313 Cr.P.C examination, it is the defence of AO2 that the amount was kept by PW1 at the window and for the reason of returning to P.W.1 later, he kept in his pant pocket.
10. Learned counsel for the appellants relied upon the judgment in the case of i) Punjabrao v. State of Maharashtra (2002) 10 Supreme Court Cases 371, wherein the Hon ble Supreme Court held that defence can be established by preponderance of probability and if any explanation is offered during Section 313 Cr.P.C examination and same is found to be reasonable, it cannot be refused only merely on the ground that the said explanation was not given when the amount was seized. He also relied on the judgment in the case of ii) P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh ((2015) 10 Supreme Court Cases 152 and argued that unless demand is proved, though there is recovery, it is of no consequence. Similar proposition was laid in N.Vijay Kumar v. State of Tamil Nadu (2021) 3 Supreme Court Cases 687.
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11. Learned Public Prosecutor submits that though there is recovery from AO2, the said amount was accepted by AO2 only at the instance of AO1. It is common in the MRO office that such persons are engaged to collect money and in the present case, the services of AO2 were taken to collect money from P.W.1. He further submits that it is not necessary that P.W.1 should be the owner of the land to take pahani copies. Any one intending to purchase the land or shows any interest in the land can always seek certified copies of pahanies. In the present case, P.W.1 narrates that there was sale transaction with regard to the said land and for the said purpose, pahani copies were sought. The person Chandrasekhar who had accompanied P.W.1 was only for the purpose of helping PW.1 to redress her grievance before the ACB and said Chandrasekhar has nothing to do with the complaint of P.W.1 and he has no reason to falsely implicate AO1. In support of his contention, he relied on the following judgments. i) Madhukar Bhaskar Rao Joshi vs. State of Maharashtra1, the Hon'ble Supreme Court held that in any trial for the offence punishable under Section 7 and Section 13(1)(d), if it is proved that the accused 1 (2000 (8) SCC 571) 8 has accepted or obtained or has an agreed to accept or attempted to obtain for himself or for any other person, any gratification, it shall be presumed that unless the contrary is proved that the said amount was towards illegal gratification; iii) In Girija Prasad (dead) by L.Rs. v. State of M.P2, the Hon'ble Supreme Court upheld an order of the High Court reversing the acquittal judgment of the trial Court on the ground of the accused failing to discharge his burden;
iv) Chaturdas Bhagwandas Patel v. State of Gujarat3; v) Dhanvantrai Balwantrai Desai v. State of Maharashtra4, Constitutional Bench judgment of the Supreme Court held that once it is shown that the amount received by any accused is towards illegal gratification, presumption has to be raised.
12. As seen from the complaint, P.W.1 did not state that AO1 demanded the bribe amount. She also admitted in her cross- examination that AO1 did not demand the amount, however, she stated that demand by AO2 was assumed to be the demand made by AO1. AO1 during the course of second mediator report at the 2 (2007) 7 Supreme Court Cases 625 3 (1976) 3 Supreme Court Cases 46 4 AIR 1964 SC 575 9 earliest point of time also specifically stated that she did not demand any amount from P.W.1. In the circumstances, the demand of bribe amount by AO1 cannot be said to have been proved by the prosecution.
13. P.W.4, who is the MRO stated that one Chandrasekhar had submitted the said application on 25.02.2003 and also alleged that AO1 had encroached the private land in Sy.No.201 situated at Sahebnagar and requested to take necessary action against her. The presence of the said Chandraseker is also spoken to by P.W.2, the mediator stating that he accompanied P.W.1 to the DSP office on the day of trap.
14. D.W.2 who is the Deputy Tahsildar stated that P.W.1 was not the pattadar or the possessor of the lands in Sy.No.568 of Peddamberpet village. It is not made clear as to why P.W.1 required pahani copies of the lands which do not belongs to her. Though there is no embargo of asking for pahini copies of any land, however, she specifically claimed in her complaint that she is the owner of the said land in Sy.No.568 of Peddamberpet village having purchased the same from one D.Satyanarayana, who is her elder 10 brother. However, the said document is not produced by the prosecution to prove that whatever P.W.1 stated regarding the ownership is correct. Admittedly, PW.1 has made a false assertion in the complaint stating that she is the owner of the land. When the said circumstance is viewed vis-à-vis., the presence of one Chandraseker who was inimically disposed to AO1 at the time of trap admittedly, the defence of false implication cannot be ruled out. In the said circumstances, when the prosecution has failed to prove the demand of AO1 and defence of false implication is probable, the recovery from AO2 is of no consequence.
15. AO2 is prosecuted for the offence under Section 12 of the Act of 1988 and convicted under the said provision. For the sake of convenience, Section 12 of the Act is extracted:
"12. Punishment for abetment of offences defined in section 7 or 11.--Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
The offence under Section 12 of the Act is made out when an offence under Section 7 or 11 of the Act is abetted. Abetment is defined under Section 107 of IPC, which reads as follows:
"107. Abetment of a thing.--A person abets the doing of a thing, who--11
(First) -- Instigates any person to do that thing; or (Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
16. An offence of abetment is when a person instigates any person to do a thing or engages with or more persons to do such things or intentionally aids in doing of any such illegal act or omission is alleged to have abetted the said offence. In the present case when it is not proved that AO1 has either demanded or accepted the amount, the question of abetting the offence under Section 7 or 11 of the Act of 1988 does not arise. The allegations against AO2 may attract section 8 or 9 of the Act. However no charge is framed under section 8 or 9 as such no finding is given.
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17. In the result, the judgment of trial Court in CC No.30 of 2004 dated 23.09.2008 is set aside and the accused are acquitted. Since the appellants are on bail, their bail bonds stand cancelled.
18. Accordingly, Criminal Appeal is allowed. As a sequel thereto, miscellaneous petitions, if, pending, shall stands closed.
__________________ K.SURENDER, J Date: 10.08.2022 kvs 13 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1213 of 2008 Date: 10.08.2022.
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