THE HONOURABLE SRI JUSTICE N. TUKARAMJI
CRIMINAL APPEAL No.317 OF 2007
JUDGMENT:
This appeal is directed against the judgment of conviction and sentence dated 26.02.2007 in C.C.No.35 of 2003 on the file of the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, whereby, the appellant/convict/accused (hereinafter 'the accused') was convicted for the charges under Sections 7 and 13(1)(d), punishable under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter 'the Act') and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,500/-, in default simple imprisonment for one month for the offence under Section 7 of the Act; and also sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,500/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 13(2) of the Act. Both the substantive sentences of imprisonment were directed to run concurrently.
2. The prosecution case in brief is that on 19.06.2002, Nageswar Rao/P.W.1 lodged a complaint/Ex.P1 against the Principal (hereinafter 'the school'), Andhra Pradesh Social Welfare Residential (Girls) School 2 NTR,J Crla_317_2007 and Junior College, Dharmaram (B), Dichpally Mandal, Nizamabad District (hereinafter 'the accused officer'), stating that himself as contractor supplied food materials to the hostel and for clearing the bills of Rs.13,426/- for the month of April, 2002 and to show official favour, the accused officer demanded bribe of Rs.3,000/- and on 18.06.2002 again demanded the bribe amount. Feeling resentful approached the Anti Corruption Bureau.
2.2. Thereupon, the then DSP, ACB, Nizamabad/P.W.4, registered a case in Crime No. 10/ACB-NZB/2002 and issued F.I.R/Ex.P12. Further, instructed the complainant/P.W.1 to come on the next day i.e., 20.06.2022 along with the proposed bribe amount and an accompanying witness.
2.3. On 20.06.2002, the investigating officer/trap laying officer/PW-4, secured the presence of mediators U.Jyothirmai/P.W.3 and Seetha Rama Reddy and appraised them the contents of the complaint and the F.I.R., and on production of proposed bribe amount by the complainant/P.W.1, noted the details and on the currency got applied phenolphthalein powder. After explaining the formalities in laying the trap and conducting pre-trap proceedings/Ex.P7, the complainant, accompanying witness, mediators and others went to the school. As the accused officer was not 3 NTR,J Crla_317_2007 there, they returned to the ACB office. Later, all of them went to the residence of the accused officer situated at Old NGO., Colony, Nizamabad.
2.4. After set up, the complainant/P.W.1, entered the house and on demand, paid the bribe amount in the presence of accompanying witness. On signal of P.W.1, the trap laying officer and the mediators along with the staff entered the house of accused officer and seized the tainted amount found on turkey towel on sofa. The phenolphthalein test on the hands and towel yielded positive result. Thereafter, rough sketch/Ex.P8 was drawn and post trap proceedings/Ex.P9 were conducted. 2.5. After examining the other witnesses and collecting the supply bills, the then Inspector, ACB, Nizamabad/P.W.6, got recorded the statement of complainant/P.w.1 before the Junior Civl Judge, Nizamabad under Section 164 of the Code of Criminal Procedure (hereinafter 'the CrlPC') and on completion of investigation, laid the final report.
3. On examination under Section 239 CrlPC, as the accusations were denied, the trial Court framed the charges under Sections 7 and 13(1)(b) of the Act.
4. To prove the charges, the prosecution examined the complainant/P.W.1, supporting witness/P.W.2, mediator for pre and post 4 NTR,J Crla_317_2007 trap proceedings/P.W.3, investigating officer/trap laying officer/P.W.4, prosecution sanctioning authority/P.W.5, the Circle Inspector, who got recorded the statement of the complainant/PW-1 under Section 164 CrlPC/P.W.6 and the office Superintendent of the School/P.W.7 and got marked Exs.P1 to P15 and material objects 1 to 8.
5. On the conclusion of the prosecution evidence, the incriminating material was put to the accused officer under Section 313 CrlPC. The accused officer had denied and filed a written statement reiterating that the tainted amount was forcibly thrusted in hands by the complainant and when the money fell on the ground, the complainant had taken the same and kept on sofa. However, no defence evidence was placed.
6. The trial Court on considering the oral and documentary evidence and other material on record, convicted and sentenced the accused officer as mentioned above.
7. In appeal, the learned counsel for the appellant would submit that the complainant and supporting witness/P.Ws.1 and 2 did not support the prosecution case in the trial, which is cutting the very root of prosecution case. Further, the averments of the complaint/Ex.P1 are lacking particulars to conclude the factum of demand of the first instance and on the alleged second date, the accused officer was not in the station, 5 NTR,J Crla_317_2007 due to other official duty. That apart, the defence version has not been considered by the trial Court. It is settled proposition that mere recovery of tainted money itself does not prove the offence until the demand is unequivocally proved. Furthermore, the accused officer had received the bills and forwarded to the office for processing and as per the evidence of the office superintendent/P.W.7, the bills were not at all processed, hence mis-using the official position for personal gain does not arise. These aspects are establishing false implication, thus, prayed for acquitting the accused officer.
8. The petitioner cited the authorities of (1) B.Jayaraj Vs. State of Andhra Pradesh1, (2) N.Vijaykumar Vs. State of Tamilnadu2, (3) P.Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh3 and (4) K.Shantamma Vs. State of Telangana4 and pleaded that the Hon'ble three Judges Bench of Apex Court in the above referred authorities held that mere recovery of bribe amount is not sufficient to prove the offence under the Act and the proof of acceptance of bribe can only follow if there is proof of demand and the presumption under Section 20 of the Act can be drawn only on the proof of demand and acceptance of bribe.
1
2014 (13) SCC 55
2 2021 (3) SCC 687
3 2015 (10) SCC 152
4 (2022) 4 SCC 574
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Mere acceptance and recovery of money would not be sufficient to prove the charge of illegal gratification.
9. On the other hand, the learned standing counsel for ACB would submit that though the complainant turned hostile, it is ipso facto not fatal to the prosecution case. The signature of the complainant in the recorded proceedings, the evidence of mediator/P.W.3 and the investigating officer/P.W.4 are consistent and corroborating with each other. That apart, the tainted amount had been recovered from the accused officer which is substantiated by the phenolphthalein test. The defence had failed to make out any material discrepancy in the evidence, thus the trial Court had rightly recorded the finding of guilt, and consequently the conviction is sustainable on all fours. That apart, the trial Court had leniently considered the sentence. Therefore, there is no tenable ground for interference and the impugned judgment deserves to be confirmed.
10. In these rival pleadings, the point that arises for determination is:
Whether the prosecution had proved the guilt of the accused officer under Sections 7 and 13(1)(d) of the Act beyond reasonable doubt ?
11. To prove the guilt of the accused officer, the prosecution must establish that the accused officer demanded the complainant/P.W.1 the 7 NTR,J Crla_317_2007 bribe of Rs.3,000/- to extend favour of passing the bills by misusing the official position and accepted the bribe amount, thus committed misconduct.
12. The facts that, the accused officer was the Principal of the school, the P.W.1 was vegetable supply contractor and the P.W.1 submitting bills of April, 2002 for payment and the accused officer receiving the bills and forwarding to the office for process, are not in dispute.
13. To prove the charges, the aspects to be proved are:
(a) the demand of bribe by the accused officer
(b) the accused officer receiving the bribe amount in pursuance of the demand;
(c) recovery of the bribe amount from the accused officer; and
(d) the demand for bribe is to extend a favour by abusing the official position.
14. In Jayraj v. State of Andhra Pradesh (1 supra) the Hon'ble Supreme Court held that, it is settled position in law as per Section 7 that the accused has to be proved beyond all reasonable doubts for the illegal gratification. The demand of illegal gratification is sine qua non to constitute offence and mere recovery of the currency note cannot constitute offence under Section 7 of the Act. Further only proof of acceptance of illegal gratification, the presumption can be drawn under Section 20 of the Act. But, such gratification was received for doing or forbearing to do any official act.
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15. In N.Vijayakumar v. State of Tamil Nadu (2 supra), the Hon'ble Supreme Court held that while considering the case under Sections 7 and 13(1)(d) (i) and (ii) of the Prevention of Corruption Act it has to be proved beyond reasonable doubt that accused voluntarily accepted the money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession of recovery of currency notes is not sufficient to constitute such offence. Further the presumption under Section 20 of the Act can be drawn only after demand for acceptance of illegal gratification is proved.
16. Similar view has been reiterated in the authorities P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh(3 supra) and K. Shanthamma v. State of Telangana (4 supra).
17. In the light of the above propositions, the material on record needs examination.
18. To prove the demand of bribe, the prosecution put-forth the complaint/Ex.P1 and the evidence of the complainant/P.W.1, the supporting witness/P.W.2, the evidence of mediator/P.W.3 and the evidence of trap laying officer/P.W.4.
19. At the outset, it is to be noted that the complainant/PW-1 and the accompanying witness/PW-2, did not support the prosecution case in the 9 NTR,J Crla_317_2007 witness box. In their cross examination, except for suggestions, the prosecution could not elicit any material fact. The other vital document is complaint/Ex.P1. The complainant/ P.W.1 assertively stated that on the dictation of the Deputy Superintendent of Police (DSP), Nizamabad, he had written the contents of Ex.P1 and the contents thereof are false. In this position, the statement of mediator/PW-3 is that the contents were read over and the complainant/P.W.1 had accepted the same. Even though reading over the contents of the Ex.P-1 and approval of the PW-1 is witnessed by the PW-3 and receipt of the report/Ex.P-1 by the trap laying/investigating officer/PW-4 are accepted, the certitude of the contents of the complaint/Ex.P-1 cannot be concluded as the PW-3 and PW-4, at the best witnessed the acceptance of the PW-1, but not the veracity of Ex.P-1 contents. For that reason, the first information statement would only be material to corroborate or contradict the statement of the maker. In the case on hand, as the PW-1 had abjured, hence the statements in the complaint/Ex.P-1 cannot be relied to conclude any fact.
20. With this exception, a further inquiry of the complaint/ExP1 is disclosing two incidents of demand of bribe. It is also pertinent to note that as per the complaint, the bills were submitted by P.W.1 on 10 NTR,J Crla_317_2007 02.06.2002 and complaint was lodged on 19.06.2002. The first incident referred as about 15 days prior to the complaint/Ex.P1, meaning thereby, about two days after filing of bills, the accused officer demanded for bribe. However, no particulars as to the time, place and other attending particulars at the time of the demand were mentioned.
21. The second demand was specified as on 18.06.2002. In this respect the investigating officer/PW-4 in cross examination admitted that the accused was on the other duty from 15.06.2002 to 23.06.2002. Even for this episode, no existent details are referred to. Thus, lack of particulars coupled with the fact of other duty on the date of alleged date of second demand, is not inspiring confidence.
22. The other situation of demand is just before the trap proceedings at the residence of the accused officer. In this regard, the prosecution proposed the complainant/P.W.1 and supporting witness/P.W.2 as the direct witnesses. As per the evidence of P.W.3 and the entries in Ex.P7/pre-trap report, the supporting witness/P.W.2 remained at a distance and the complainant alone met the accused officer. As mentioned earlier, the P.Ws.1 and 2 resiled from the prosecution case. Thus, their alleged statements recorded in post-trap proceedings/Ex.P9 are in any way helpful to prove the aspect of demand by the accused 11 NTR,J Crla_317_2007 officer just prior to the trap proceedings. Therefore, the material placed by the prosecution is falling short to prove the factum of demand for bribe by the accused officer beyond reasonable doubt.
23. To prove that the accused officer receiving the bribe amount apart from the evidence of complainant/PW-1 and the accompanying witness PW-2, the evidence of mediator/PW-3 and the trap laying officer/PW-4 are propounded. As per the evidence of PW-3 and PW-4, the trap proceedings are recorded in the mediator's report/Ex.P-9. The PWs.3 and 4 have consistently stated that on receiving the pre-arranged signal, they went into the house and immediately a woman constable caught hold the forearms of the accused officer and the phenolphthalein test divulged positive result and the tainted currency was found on turkey towel on sofa.
24. Be that as it may, it is interesting to note that, in cross examination the prosecution suggested the version that when the complainant/PW-1 went to the house, the accused officer got placed two chairs in verandah and he sat on the window side in the chair. The accused officer came out and after greetings sat on the chair placed towards stair-case and enquired about the demanded bribe amount. On affirmation, the accused officer assured that the work would be done on the next day, received the tainted 12 NTR,J Crla_317_2007 amount with right hand and held with both hands, went inside house and when the complainant/PW-1 was about to leave and reached the gate of the house, the accused officer requested him to have a cup of tea and asked to wait and entered the kitchen. Meanwhile, the complainant/ PW-1 went to the gate and gave pre-arranged signal.
25. Nonetheless, in the mediators report/ Ex.P-9, it is specifically noted that after the trap party, mediators and complainant and accompanying witnesses reached near the house of the accused officer, the trap members took vantage positions near the house and at 07:15 PM the complainant entered into the house of the accused officer leaving the accompanying witness in front of the shadow nearby the house and at 07:25 PM the complainant came out from the house and gave pre-arranged signal. Immediately, the trap party members and staff entered the house, disclosed their identity and recorded the statement of the PW-1.
26. A juxtaposition of these versions with the rough sketch of scene of offence/Ex.P-8 the verandah/portico is outside the house, opposite to the gate. Thus, the version in the mediators' report that the complainant/PW-1 entered into the house and came out of the house and gave pre-arranged signal is undeniably at variance with the prosecution suggested manner of happening to the complainant/PW-1 that the 13 NTR,J Crla_317_2007 accused officer came out of the house into verandah and there the bribe amount was handed over. In addition, there is no reference in the suggestion that the PW-1 moved towards the gate and at request of the accused officer went back, before giving the pre-arranged signal. Further to note, in the post trap proceedings/Ex.P-9, it is noted that the trap party members were near to the house at vantage points. The mediator/PW-3 in cross examination stated that they were at a distance of about half furlong i.e., 200 meters from the house of the accused officer. It is not the prosecution version that the pre-arranged signal of the complainant/PW-1 would be received by the accompanying witness/PW-2 and he relays the signal to the trap laying party. Therefore, in ordinary prudence it can be understood that in all probability the trap party should have been in the visible range, unless on the signal, surprising the premises would not be possible. In the circumstances, the variance in the version of trap laying party as to the manner of occurrence is giving rise to reasonable doubt on the proceedings.
27. Further, the spot explanation of the accused officer that the amount was thrusted by the complainant in her hands and on pushing away, the currency fell down and the PW-1 collected and kept the same on sofa. This defence theory is impliedly explaining that giving the amount was in 14 NTR,J Crla_317_2007 the house and this version is contradicting with the PW-1's statement in the post trap proceedings regarding the occurrence, even if it is taken into account, as it is. To note, the PW-1, in the witness box had supported the defence account.
28. Whatsoever, by the evidence of mediator and investigating officer, finding the tainted currency in the house of the accused officer and by the phenolphthalein test the accused officer touching the currency can be believed.
29. Howsoever for the aforesaid, as the aspects of demand of bribe and receipt of the amount, by the accused officer had remained uncertain and mere recovery of the currency will not qualify the essentials of the offence, benefit shall be extended in favour of the accused officer. In effect, as the pivotal charge failed, the imputation that the accused officer's demand for bribe to extend the favour by abusing the official position stands implausible.
30. Resultantly, it shall be held that the trial Court failed to consider the factual and legal aspects in proper perspective and therefore the impugned judgment is liable to be set-aside.
31. In the result, the criminal appeal is allowed. The judgment of conviction and sentence dated 26.02.2007 in C.C.No.35 of 2003 on the 15 NTR,J Crla_317_2007 file of the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad is hereby set aside and the appellant/accused officer is acquitted of all charges. The fine amount if any paid shall be refunded.
As a sequel, miscellaneous petitions pending, if any, in this Appeal, shall stand closed.
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Date:17.11.2022 N.TUKARAMJI, J
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