THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1316 of 2007
JUDGMENT:
1. The appellant is convicted and sentenced to undergo rigorous imprisonment for six months for the charge under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') and also to pay fine of Rs.500/-, in default, to suffer simple imprisonment for one month and further sentenced to undergo rigorous imprisonment for one year for the charge under Section 13(1)(d) punishable under Seciton 13(2) of the Act of 1988, and also to pay Rs.500/-, in default to pay, to undergo Simple Imprisonment for one month, vide judgment in C.C.No.33 of 2003, dated 27.09.2007 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, present appeal is filed.
2. The appellant/accused officer was working as a clerk in the office of the BC Welfare, Warangal. P.W.1 is the complainant, who was working as Correspondent in Sri Aurobindo Junior College, Kesamudram of Warangal District. Intermediate students are sanctioned scholarships by the Government 2 through BC welfare. Accordingly, proceedings were issued granting scholarships to the students of the said college. When the Correspondent-P.W.1 approached the office and met the Superintendent-P.W.4, he informed that the cheques were ready and asked P.W.1 to meet the accused officer. When P.W.1 met the accused officer, the accused officer demanded an amount of Rs.5,000/- to be given towards the total amount of Rs.30,000/- scholarship that was sanctioned for 25 students and that unless amount was paid, he would not give the cheques. Aggrieved by the demand of bribe, P.W.1 filed complaint dated 31.01.2001 at 2.00 p.m.
3. The trap was arranged on 02.02.2001 after the complaint was registered at 9.30 a.m. the same day. P.W.6, the DSP, secured the presence of mediators P.W.3 and another and after following the due procedure before laying a trap, the pre-trap proceedings under Ex.P10 was drafted and proceeded to office of accused. The trap party consisting of P.Ws.1, 3, 6 and others have approached the office of the BC welfare around 10.15 a.m. P.W.1 entered into the office at 11.20 a.m and came out of the office and relayed pre-arranged signal of acceptance of bribe by 3 the accused officer. The trap party entered and conducted tests on the hands of the accused officer, which turned positive and the bribe amount was taken out from his pant watch pocket and handed over to DSP. According to P.W.1, he met the accused officer and informed that he brought the bribe amount, thereafter the accused received the bribe amount and handed over the scholarship cheques to him.
4. Learned counsel for the appellant submits that the very demand is doubtful as no specific date or time of demand is mentioned in the complaint. According to P.W.4, the cheques cannot be given unless they are signed by him and further they should be collected either by the correspondent or the Principal of the college. However, P.W.1 sent his clerk for collection of the cheques and the accused officer refused to hand over the cheques and asked either P.W.1 or the Principal to approach him, for the said reason of not giving the cheques and asking P.W.1 to come personally, false complaint was filed.
5. Counsel further submits that the accused officer has given spontaneous explanation during the post-trap proceedings that the amount was thrust in his hands and when he refused to 4 take, they were thrust into his pant pocket. The accused officer has examined the witness D.W.1, who specifically stated that the accused officer at no point of time demanded any amount for giving the scholarship cheques of the students. However, the cheques have to be collected either by the Correspondent or by the Principal. In support of his contentions, he relied on the judgment reported in the case of State of Kerala and another v. C.P.Rao [(2011) 6 SCC 450], wherein the Hon'ble Supreme Court held that thrusting is probable defence and if proved by preponderance of probability, the same can be accepted.
6. Learned Special Public Prosecutor for ACB submits that the very defence of the accused officer that he was falsely implicated for the reason of being a Muslim and P.W.1 belonging to BJP party, is highly improbable. There is no reason why P.W.1 would falsely implicate the accused officer unless demanded bribe by him. The cheques were in the possession of the accused officer on the date of trap and only when the amount was taken, the cheques were handed over to P.W.1. In the said circumstances, presumption under Section 20 of the Act arises and the accused officer failed to discharge his burden, for which reason, the 5 conviction cannot be interfered with. In support of his contentions, he relied upon in the cases of; i) Raghubeer Singh v. State of Haryana1, rendered by Three-Judge Bench, it was held that the very fact of an Assistant Station Master, being in possession of marked currency notes against an allegation that he demanded and accepted that amount is "RES IPSA LOQUITUR"; ii) In Madhukar Bhaskar Rao Joshi v. State of Maharashtra2, it was held that once the prosecution established that gratification in any form cash and kind, had been paid or accepted by a public servant the court is under legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do (or forbear from doing) any official act; iii) In M.W.Mohiuddin v. State of Maharashtra3, it was held that once the Accused comes into possession of the money, the only inference that he accepted the same and thus obtained the pecuniary advantage; iv) In State of A.P v. C.Uma Maheshwar 1 AIR 1974 SC 1516 2 2004 Crimes 240 SC 3 (1995) 3 SCC 567 6 Rao and another4, on the ground that demand made was not believable, the accused officer was acquitted, but the Hon'ble Supreme Court held that when receipt was admitted, it was for the accused to prove as to how presumption was not available. Public prosecutor submits that in this case, receipt was not admitted by the accused officer, but it was proved with convincing material and, therefore, the contention of defence that presumption is not available to the accused officer should not be appreciated.
7. The defence of the accused officer is that the amount was thrust into his hands on the day of trap and when he refused, P.W.1 thrust it into his pant pocket and the trap party entered and conducted test on the accused officer. The said version of forcible thrusting the amount was stated during the post trap proceedings. When the DSP questioned regarding the amount, the accused officer stated that he handed over the cheques of scholarship and thereafter, P.W.1 offered currency notes and when he refused to take, then P.W.1 put it into his hands and 4 2004 (2) Supreme 730 7 then thrust into the watch pocket of his pant. The defence regarding thrusting is consistent and D.W.1, who is the Senior Assistant in the BC Welfare Office stated that P.W.1 has thrust the amount into the pant pocket of the accused, when accused refused to take the said amount.
8. D.W.2 is In-charge of one SVSA Kalasala at Warangal. He deposed that he has been collecting the cheques from the accused officer over a period and never did the accused officer ask for any money for handing over the scholarship cheques. On the date of trap, D.W.2 also stated that he has seen P.W.1 forcibly thrusting the amount into the pant pocket. D.W.3 is another Correspondent of Junior College, who was also present on the date of trap and narrated the events on the trap day similar to that of D.Ws.1 and 2.
9. According to the post trap proceedings, at the earliest point of time, the accused officer had taken a defence that the amount was thrust into his pant pocket. The defence that P.W.1 bore grudge against the accused officer for the reason of refusal to handover the cheques to clerk of P.W.1 for which reason, the accused officer was falsely implicated in the trap is not 8 farfetched. In the complaint that was made on 29th, no details are given regarding the date and time of demand by the accused officer. Though in the complaint, he states that P.W.1 met P.W.4 in the office for the purpose of cheques, P.W.4 before the Court stated that P.W.1 never met him and he has sent his clerk for collecting the cheques. The accused officer refused to hand over the cheques to the clerk when the clerk met P.W.4. P.W4 also informed that it will be delivered either to the Correspondent or to the Principal of the college. The said version of P.W.4 is not disputed by the prosecution. Further, the demand allegedly made by the accused officer is not proved by the prosecution. Unless it is specifically stated by the witness as to when and where the demand was made, the version of PW1 cannot be considered in the facts of the present case. In the said circumstances, the prosecution has failed to prove the demand that was made by the accused officer.
10. Normally when there are two independent witnesses in the trap party, one independent witness is sent along with the complainant to witness as to what transpires between the complainant and the officer. However, though available, no 9 independent witness was sent along with P.W.1. In the said circumstances also, when there is no independent corroboration to the factum of demanding and accepting bribe on the trap day, the prosecution case becomes doubtful. In fact, P.W.4, who is the superior of the accused officer has contradicted the version of P.W.1 regarding his visit. D.Ws.1, 2 and 3 who were present at the scene stated that they have seen P.W.1 thrusting the amount into the pant pocket. In the case of defence witnesses, only for the reason of their entering into the witness box in favour of the accused officer, their evidence cannot be disbelieved. Both the prosecution and defence witnesses have to be equally treated by the Court. There are no reasons to disbelieve the evidence of D.ws.1 to 3, who are probable witnesses, who were present at the scene stating that the amount was thrust into the pant pocket of the accused officer by P.W.1.
11. In the said circumstances, the prosecution has failed to prove its case beyond reasonable doubt for which reason, the conviction recorded by the trial Court in CC No.33 of 2003 dated 27.09.2007 is liable to be set aside and accordingly, set aside. 10
12. Criminal Appeal is allowed and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand cancelled.
_________________ K.SURENDER, J Date:17.08.2022 kvs 11 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.1316 of 2007 Dated:17.08.2022 kvs