THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.1115, 1155 & 1157 OF 2007
COMMON JUDGMENT:
1.
These Criminal Appeals 1115, 1155 and 1157 of 2007 are filed by Accused Nos.2, 3 and 1 respectively, aggrieved by the conviction recorded by the Additional Special Judge for SPE & ACB cases, City Civil Court at Hyderabad, in C.C.No.16/2003.
2. Since all the three accused filed appeals challenging their conviction in the very same case i.e.C.C.Nol16/2003, all the three appeals are heard together and disposed off by this common Judgment.
3. Accused No.1 (A.O.1) is the Excise Inspector, Accused No.2 (A.O.2) is the Excise H.E., and Accused No.3 (A.O.3) is a private person and the Proprietor of Srinivasa Kirana Stores. Accused Nos.1 & 2 were convicted for the offence under Section 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short 'P.C.Act')and Accused No.3 was convicted for the offence under Section 12 of Prevention of Corruption Act, 1988. 2
4. PW1 is the defacto complainant. He lodged a complaint on 15.03.2001 stating that A.O.1 is the Excise Inspector of P & E Station, Kalwakurthy, who registered a case against the driver of his auto on 25.10.2000 and seized his auto on the allegation of transporting illicit liquor. On 01.03.2001, PW2 who is the wife of PW1 filed application before the Deputy Commissioner of Prohibition and Excise, Mahaboobnagar, and the Deputy Commissioner ordered release of the Auto. Both PWs.1 and 2 met A.O.1 on 03.03.2001 and requested to release the Auto. A.O.1 asked PWs.1 and 2 to furnish the particulars of ownership of the Auto and also Rs.50,000/- as security. Apart from the security for release of the Auto, PW1 demanded an amount of Rs.4,000/- towards bribe. A.O.1 insisted that unless bribe amount of Rs.4,000/- is paid, he would not release the Auto and will not accept less than Rs.2,000/- for releasing the Auto, to be paid within two or three days. Aggrieved by the said demand, a complaint Ex.P1 was made on 15.03.2001.
5. The D.S.P having received the complaint registered the same under Section 7 & 11 of the Prevention of Corruption Act, 1988, and arranged a trap. The DSP sent for PW3 and another 3 independent mediator to witness the trap proceedings. The trap was arranged on the same day and the trap party members including the mediators, PWs.1, PW2, the D.S.P.-PW8 and also the Inspector-PW9 formed part of the trap party. Pre-trap proceedings under Ex.P3 were drafted in the A.C.B. office. The independent mediators having questioned PW1 about the demand and also witnessing the phenolphthalein sodium carbonate test, drafted Ex.P3-pre trap proceedings. The said proceedings took place between 1.30 p.m to 2.10 p.m.
6. After concluding Ex.P3 proceedings, the trap party went to Kalvakurthy to the Prohibition and Excise station where A.O.1 was the Inspector. Both PWs.1 and 2 went into the office and around 6.30 p.m., PWs.1 and 2 came out and gave the pre- arranged signal informing the trap party that the bribe amount was accepted. The trap party entered the office and found A.O.1 and A.O.2. The D.S.P. questioned A.O.1 whether he demanded any bribe amount from PW.1, AO1 informed that he did not make any demand and was found shivering. The D.S.P. secured water to conduct sodium carbonate solution test and when AO1 hands were tested, the color of the solution remained 4 unchanged. Then the D.S.P, questioned PW1 as to what transpired after he entered into the office around 6.00 p.m. PW1 informed that on his entry into the office, he made a request to A.O.1 to release the Auto. Then A.O.1 demanded the bribe amount, upon which PW1 informed that the bribe amount was with his wife PW2 who was waiting outside. Then A.O.1 called A.O.2 and instructed him to prepare the acknowledgment receipt. The third accused (A.O.3) who was an independent person was called by A.O.2 to sign on the receipt identifying PW2, for returning the Auto. After the said signatures, the third accused went away and A.O.1 asked the amount and instructed PW1 to handover the said amount to A.O.2. After A.O.2 received the amount he opened the almirah and returned the documents of the vehicle to PW1. After receiving the said documents PW1 came out and gave pre arranged signal. On persistent questioning by DSP, A.O.1 informed that the amount was given to A.O.2. When A.O.2 was asked he informed that on the instructions of A.O.1 he received the said amount and after receiving the amount he noticed some officials rushing towards excise office and suspecting something had gone wrong handed 5 over the amount to the third accused (A.O.3). The trap party members then followed A.O.2 to the shop of A.O.3 which was two furlongs away from the excise station. A.O.3 then handed over the said bribe amount to trap party. After concluding the proceedings the mediators drafted Ex.P9-post trap proceedings. The said proceedings were concluded at around 1 a.m. on 16.03.2001. In the proceedings the concerned file was also seized by the A.C.B.
7. The A.C.B. conducted investigation and arrayed all the three as accused, A.O.1 being the Inspector who demanded the amount, A.O.2 for receiving the amount on the trap day and A.O.3 was also implicated for the reason of keeping the bribe amount handed over by A.O.2.
8. The counsel for A.O.1 would submit that there was no proof of demand which was established by the prosecution. In fact as stated by PW1 that there was a demand on 08.03.2001, the same is falsified by the evidence of the defence witnesses DW1 who is the practicing advocate in the High Court and he stated that A.O.1 attended the High Court on 01.03.2001, 03.03.2001, 05.03.2001, 07.03.2001 and 12.03.2001, for the said reason 6 when A.O.1 was at Hyderabad attending proceedings at the High Court the question of demanding bribe from PW1 does not arise. Prosecution's failure to prove the demand by A.O.1 and recovery from A.O.3 cannot be made basis to convict A.O.1 for the offence under Section 7 and 13 (1)(d) of the Act. Learned Counsel further submits that on the date of trap DWs.2, 3, 4 were present in the office and the procedure was followed as per the directions of the Commissioner and the vehicle was returned after obtaining the security amount. On the date of trap the hands of A.O.1 did not turn positive to the sodium carbonate solution and admittedly as per the Post Trap Proceedings-Ex.P9, A.O.1 had denied receiving any amount from PWs.1 and 2.
9. He relied upon the Judgment of the Supreme Court in Ayyasami v. State of Tamilnadu1 wherein the Honourable Supreme Court held that when the chemical test did not prove positive and the amount was seized from the table drawer, the accused was acquitted.
1 AIR 1992 Supreme Court 644 7
10. On similar lines counsel for A.O.1 relied upon the Judgment of this Court in Kalukuri Lingaiah v. State2; in P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another3 wherein it was held that unless demand is proved mere recovery is of no consequence.
11. The arguments of learned counsel for A.O.2 and the learned counsel for A.O.3 are on similar lines. Learned counsel for A.O.2 submitted that even according to the complaint Ex.P1 there was never any demand made by the A.O.2 and for the reason of there being no demand the question of conviction under P.C.Act does not arise. Even according to the prosecution witnesses, on the day of trap, the amount was received at the instance of A.O.1
12. Learned Counsel for A.O.3 submits that he is a private person and has nothing to do with the demand or acceptance of bribe by A.O.1 or A.O.2 and that he is running a Kirana shop 2 2001(2)ALD(Crl.)779 (A.P) 3 (2015) 10 Supreme court Cases 152 8 and A.O.2 was his customer. In the process of giving provisions on credit, A.O.2 was making payments in installments, for the reason of recovery of the amount which was taken towards sale of provisions from his Kirana sop, he cannot be mulcted with criminal liability for abetment under the P.C.Act.
13. The factum of seizure of the Auto of PW1, the direction to release it on security and giving back the documents on the trap day are not disputed by A.Os.1 and 2. However, A.O.1's case is that since his hands had not turned positive to the test of sodium carbonate solution and since the amount was seized in the shop of third accused which was two furlongs away from his office, it cannot be said that the prosecution has proved its case for demand and acceptance which is required to convict under Section 7 of the P.C.Act.
14. Admittedly, A.O.2's name was not mentioned in the complaint. Even according to PWs.1 and 2 they have never seen A.O.2 except on the date of trap. It is apparent from the evidence of PWs.1 and 2 and also proceedings recorded in the post trap mediators panchanama-Ex.P9 that it was A.O.1 who demanded the amount and asked PW1 to pass on the said amount to A.O.2. 9 Admittedly there was no demand made by A.O.2 for the said amount. The entire conversation regarding bribe amount was between PW1 and A.O.1. PWs.1 and 2 were in the office of A.O.1 for half an hour from 6.00 to 6.30 p.m. on the trap date. After A.O.1 asking PW1 regarding bribe amount and when PW1 informed that the amount was with PW2 who was sitting outside office, the process of returning of Auto was undertaken. The documents were signed and for want of a person to identify PW2, the third accused (A.O.3) was called who signed on the receipt and went away.
15. In the entire transaction that transpired between 6.00 to 6.30 p.m. there was never any demand that was made by A.O.2. Being the subordinate of A.O.1 and on his instructions A.O.2 kept the money with him. It is not the case of the prosecution that A.O.1 or PW1 informed A.O.2 that it was towards the process of the documents for returning the Auto as directed by the Deputy Commissioner, Excise. However, it cannot be said that A.O.2 may not be having knowledge of the amount received from PW2 to be bribe amount. The bribe amount was handled by AO2 at the instance of AO1. However having such knowledge, 10 without there being any of the acts of accepting or demanding the bribe amount, the same will not attract the provision under Section 7 of P.C.Act. It is apparent that the amount was not handled by A.O.2 pursuant to any demand or any understanding for taking bribe in between A.O.1 and A.O.2 from PW1. In the said circumstances, it cannot be said that the ingredients of Sec.7 are satisfied to convict A.O.2
16. A.O.3 was convicted for the offence under Section 12 of P.C.Act, 1988. For the sake of convenience, Section 12 of the Act is extracted hereunder:
"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."
17. The prosecution case is that A.O.2 handed over the said bribe amount to A.O.3 in the shop. It is not the case that A.O.3 knew that the said amount was either bribe amount or he had knowledge about any demand of bribe by the A.O.1 from PW1. 11 18 A.O.3 accepting the amount from A.O.2 at his Kirana Shop will not under any circumstances amount to abetment as defined under Section 12 of P.C.Act.
19. Abetment is defined under Section 107 of IPC.
107. Abetment of a thing.--A person abets the doing of a thing, who-- 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.
20. Unless it is shown that a person instigates a person to do anything or engages with some other person to do such thing in pursuance of a conspiracy or intentionally aids by doing such act is said to have abetted the offence.
22. DW1 was examined to state that on different dates A.O.1 had attended the High Court. Though such statement is made the distance between Kalvakurthy and Hyderabad is around two hours by road. When the timing of meeting is not specifically 12 stated to rule out the possibility of meeting, it cannot be said that demand is not proved by the prosecution.
23. For the foregoing discussion, the offence under Section 7 and 13(1)(d) read with 13(2) of the P.C.Act, 1988 is not proved against A.O.2 and the offence under Section 12 of P.C.Act is not proved against A.O.3. However, the prosecution had proved its case against A.O.1 for the offence punishable under Sections 7 and 13(1)(d) of the Act. The conviction of A.O.1 is sustained. The conviction against A.O.2 and A.O.3 is set aside and their bail bonds shall stand cancelled. A.O.1 is sentenced to minimum punishment prescribed.
24. Accordingly, the Crl.A.Nos.1115 and 1155 of 2007 are allowed and Crl.A.No.1157 of 2007 is dismissed.
As a sequel thereto, miscellaneous petitions, if any, pending, shall stand closed.
_________________ K.SURENDER, J Date:10.08.2022 tk 13 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL Nos.1115, 1155 & 1157 OF 2007 Dated:10.08.2022 tk