HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.22, 28 and 100 of 2007
COMMON JUDGMENT:
1.
All these appeals are preferred questioning judgment in CC No.44 of 2002 dated 30.12.2006. Criminal Appeal No.100 of 2007 is filed by AO1, Criminal Appeal No.22 of 2007 is filed by AO2 and Criminal Appeal No.28 of 2007 is filed by AO3. AOs.1 to 3 were convicted for the offence under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year each under both counts, as such, they are being heard together and disposed off by way of this Common Judgment.
2. Briefly stated, the case of the prosecution is that the accused officers (AO1, AO2 and AO3) went to the house of P.W.1 as he complained that the electricity meter fixed at his residence was struck. AO1 was the line man and AO3 was the Line Inspector, who went to the house of P.W.1 and inspected the electricity meter. At that point of time, P.W.1 was not present in the house, however, his wife who was examined as 2 P.W.5 was present. It was informed to P.W.5 that the seal affixed to the service meter was broken and asked P.W.1 to meet them in the office. On 18.09.2001 at 9.30 p.m and again on 20.09.2001 at 9.00 p.m, all the three accused officers went to the house of P.W.1 and informed P.W.1 that the seal of the meter was tampered with, which would result in a case being booked by the Vigilance Department and arrest P.W.1. An amount of Rs.10,000/- had to be paid to the accused officers, so that they would replace the meter and there would be no case. P.W.1 informed that he was not in a position to pay and requested to reduce the bribe amount, which they ultimately reduced to Rs.3,500/- and P.W.1 was asked to pay the said amount on 22.09.2001 after the meter was replaced. However, P.W.1 went to ACB office and lodged Ex.P1 written complaint to P.W.6, DSP on 21.09.2001. The said complaint was registered on 22.09.2001 at 5.00 a.m, on which date trap was also arranged.
3. The pre-trap proceedings were conducted in the presence of P.Ws.1, 2, 4, 6 and others. After concluding the said pre- 3 trap proceedings around 7.15 a.m, the trap party proceeded to the house of P.W.1 at 8.00 a.m. Around 8.45, AOs.1 and 2 came to the house of P.W.1 and allegedly demanded the bribe amount. When P.W.1 informed that the bribe amount was ready, they replaced the old meter with a new one and then demanded the bribe amount, as such, P.W.1 took the amount of Rs.3,500/- and handed over to AO1, who started counting the money. PW1 gave the signal to the trap party, who immediately came and caught hold of the hands of AO1 while he was counting currency notes. The said amount was checked by the mediator and thereafter sodium carbonate solution test was conducted to verify whether the hands of AO1 had traces of phenolphthalein powder, which was applied to the currency notes earlier during the course of pre-trap proceedings. Both the hands of AO1 turned positive. The investigation was handed over to the Inspector-P.W.7, who concluded the investigation and filed charge sheet. 4
4. Charges under the provisions of Section 7 and Section 13(1)(d) r/w Section 13(2) of the Act were framed against AOs.1 to 3.
5. During the course of trial, the prosecution examined P.Ws.1 to 7 and marked Exs.P1 to P21. In defence, two witnesses D.Ws.1 and 2 were examined and Exs.D1 to D5 were marked on behalf of the accused.
6. On consideration of the evidence adduced by both the ACB and AOs.1 to 3, the learned Special Judge found the AOs.1 to 3 guilty as stated supra.
7. On behalf of AOs.1 to 3, learned counsel submits that the prosecution has failed to prove the demand that was allegedly made by the Accused Officers. Admittedly, P.W.1 was not present on the alleged date of demand. P.W.1, who is the complainant and PW.2, who is an independent mediator, turned hostile to the prosecution case. D.W.1, who was the Assistant Divisional Engineer stated that AO1 was not the concerned lineman for the area, as such, the question of AO1 demanding any bribe does not arise. Further, D.W.2 was the 5 tenant of P.W.1, who stated that the AO1 refused to accept money that was offered to him by P.W.1. In the back ground of the admissions made by P.W.1 during the course of cross- examination, it cannot be said that the prosecution has proved its case beyond reasonable doubt. Learned counsel further argued that P.W.3, who is the Divisional Engineer granted sanction for prosecution, but he is not competent authority to grant sanction, for which reason of improper sanction, the entire proceedings are vitiated. In support of his contentions, he relied on the judgments reported in the cases of; i) C.M.Girish Babu v. State of Kerala1; ii) P.Satyanarayana Murthy v. State of A.P( F.B)2; iii) B.Jaya Raj v. State of A.P3; iv)Punjabrao v. State of Maharashtra4; v) N.Vijayakumar v. State of Tamil Nadu5; and argued that a) corroboration is required for the version of a decoy witnesses; 1
(2009) 3 SCC 779 2 2015 (10) SCC 152 3 (2014) 13 SCC 55 4 (2002) 10 Supreme Court Cases 371 5 (2021) 3 Supreme Court Cases 687 6
b) Unless demand is proved, mere recovery divorced from circumstances is of no consequence; c) The statement made during Section 313 Cr.P.C examination can be considered by the Court and it is not necessary that the defence is taken at the earliest point of time.
8. On the other hand, learned Special Public Prosecutor for ACB submits that the accused officers were in fact the persons who were responsible for changing the meter. They have indulged in extracting money by keeping PW1 under fear of criminal case. Apparently, P.W.5 who is the wife of P.W.1 is a direct witness to the demand of bribe made by the accused officers and on the date of trap, the amount was recovered from AO.1. The presumption is raised in the present circumstances and the accused officers failed to discharge their burden. The names of all the three accused officers was specifically mentioned in the complaint and the absence of AO.3 at the time of trap is of no consequence since demand was made by AO3 also. In support of his contentions, he relied on the judgments in the cases of i) Kanshi Ram v. 7 State of Punjab6 and State of Andhra Pradesh v. V.Vasudeva Rao7.
9. For the sake of convenience, the statements made by P.Ws.1, 2, 4 and 5 are reproduced hereunder:
Statement of P.W.1.
"I do not know as to who were concerned Line Inspector and Line man for our locality. I do not know whether AO.1 was concerned Lineman of Yellammagutta area in Nizamabad. When ACB officials examined me and recorded my statement I did not state to them, that my wife informed me on telephone about the visit of my house by Transco officials in the aid context."
"It is true that AO.2 Balachandram was not aware of any happenings from 15.9.2001 to 22.9.2001. I do not know whether AO.2 Balachandram came to my house on 22.9.2001 at the request of AO.1 Satyanarayana Goud. On 22.9.2001 AO.2 did not demand any money from me."
"The happenings on 15.9.2001 at my house were informed to me by my wife and I have no personal knowledge about it as I was absent at my house on that day. I do not know the names and designations of AOs. 1 To 3 prior to the trap. And it is only after the trap I came to know their names and designations It is true that I stated in my sec.164 Cr.P.C statement before the Magistrate that on 15.9.2001 the demand for bribe had taken place and that it was reduced to Rs.3,500/-. I did not state before the Magistrate that subsequently, the AO.1 Satyanarayana Goud and AO.3 Vittal has ever come to our house to make any demand.
"It is true that I prepared the complaint only after the trap, having verifying the names and designations of AOs. It is true that AOs never came to my house and demanded bribe from me earlier to my filing complaint."6
(2005) 12 Supreme Court Cases 641 7 (2004) 9 Supreme Court Cases 319 8 "It is true that I did not state before the Magistrate in my sec.164 Cr.P.C statement that AOs 1 to 3 have come to my house either on 18.9.2001 or on 20.9.2001 and that they demanded me to pay any bribe. I stated before the Magistrate that on 15.9.2001 AOs 1 to 3 came to me and that they demanded Rs.10,000/- and settled it for Rs.3,500/- and as if I was present on that date in my house."
Statement of P.W.2:
"The happenings in the veranda of the house of P.W.1 were not visible to us as we were sitting in the rented room of Veerabhadraiah. DSP and Murlidhar Rao, Inspector were sitting in the front room of house of P.W.1."
"The happenings in the room where DSP took vantage position were not visible to me and other Inspector who were sitting in the front room of Veerabhadraiah's portion and vice versa. To the dictation of DSP only Ex.P6 and P7 pre and post trap proceedings were reduced into writing."
"It is true that after we went to AO.1 at the house of P.W.1, the DSP asked AO.1 to count the money and tell him as to what is the total of that amount. And then AO.1 counted the currency notes and informed the DSP it was Rs.3,500/-. Thereafter, only DSP took the said money from AO.1 and thereafter the water was sent for and then the tests were conducted."
Statement of P.W.4:
"It is true that at the instance of DSP AO.1 counted the currency notes and gave the total amount to the DSP as desired by him. After AO.1 counted the said money and handed over the same to DSP, water was procured from the house of P.W.1 for conducting the said chemical test."
Statement of P.W.5:
"It is true the ACB officials had shown AOs 1 to 3 to me today describing their name and therefore I could say the same in my evidence today."
"It is true I am giving my evidence at the instance of my husband and ACB officials."
10. As seen from the admissions made by P.Ws.1, 2 and 5, the contents of Ex.P1 complaint are doubtful for the reason of 9 P.W.1 accepting that he was not present on the alleged date of demand i.e., on 15.09.2001, on which date, P.W.5 was present. Both P.Ws.1 and 5 have stated that they cannot identify the accused officers and it was at the instance of ACB personnel, the accused officers were identified in the court and also that the complaint was lodged after verifying the names and designations of the accused officers, after conclusion of trap. The complaint was filed on 21.01.2001 and the said complaint was registered at 5.00 a.m on 22.09.2001, the said FIR reached the Court at 3.30 p.m with a delay of nearly 9 hours. The version of P.W.1 that the complaint was lodged subsequent to the trap proceedings after AOs.1 and 2 were trapped around 9.00 a.m. appears to be correct. The court is at a traveling distance of 2 ½ hours to 3.00 hours. The complaint was received on 21.09.2001 at 4.00 p.m. For the reason of conducting preliminary enquiries, the said complaint was not registered, which is acceptable. However, the said complaint, after preliminary enquiries, was registered at 5.00 a.m on 02.09.2001. There is no explanation as to why the said FIR/complaint, when registered at 5.00 a.m was not 10 immediately sent to the Court. As already stated above, the sequence of events from lodging complaint, enquiry and registration of FIR and subsequently sending the FIR to the court casts doubt on the version of the prosecution in the background of admissions of PW1. The said events and the delay in sending the FIR to the Court probablizes the version of P.W.1 stated in the Court that at the instance of ACB officials the complaint was drafted subsequent to the trap.
11. According to P.W.1 on the date of alleged demand on 15.09.2001, he had no personal knowledge about the said demand. During the course of cross-examination, P.W.1 specifically stated that AO.2 was not aware about any of the happenings in between 15.09.2001 to 22.09.2001 and did not demand any money from him. According to his Section 164 Cr.P.C statement made before the Magistrate, P.W.1 did not state anything about the alleged demand on 18.09.2001 and 20.09.2001. However, in Ex.P1 complaint, P.W.1 stated that demand on 18.09.2001 was at 9.30 p.m and on 20.09.2001, it was 9.00 p.m. The said demands made in the night again is 11 again doubtful for the reason of not mentioning the said dates in Section 164 Cr.P.C. statement and also in the back ground of specific admission of P.W.1 that the names and designations of the accused officers were subsequently known and then the complaint being drafted.
12. On the date of trap, according to P.Ws.2 and 4, the DSP had asked AO1 to count the currency notes and thereafter, the test was conducted. The said procedure adopted by DSP-P.W.6 is incorrect and such procedure adopted by DSP casts doubt on the prosecution case being correct. When AO.1 was made to count the currency notes even prior to the tests, no credibility can be given to the case of prosecution regarding positivity of the tests, as the tests are bound to be positive. When all the circumstances are cumulatively assessed, the demand made by the accused officers becomes doubtful. Failure by the prosecution to prove the demand and the other circumstances as narrated above, makes the case of the prosecution doubtful. On a cumulative assessment of events it 12 appears that the actual happening is suppressed and the prosecution has not stated the actual version.
13. The prosecution has examined P.W.3-Divisoinal Engineer who granted sanction under Exs.P9 to P11. During the course of his cross-examination, P.W.3 stated that he did not know the ingredients and provision of law mentioned in the sanction orders Exs.P9 to P11 and sought time for the purpose of getting the concerned file. The witness was again recalled after a month and P.W.3, having gone through the original file stated in his cross-examination that the Chief Engineer directed the Superintendent Engineer to take action against the accused officers by issuing sanction orders, as per the proforma enclosed. The copy of FIR, Mediators Report and final report of the Director General were not enclosed with the said letter. He further admitted that he issued Exs.P9 to P11 sanction orders as he cannot disobey the orders of the Chief Engineer. The admission made by P.W.3 goes to show that at no point of time there was any application of mind in granting sanction. When he specifically admits that proforma sanction 13 order was enclosed, which was signed by P.W.3, the very sanctity of granting sanction is lost. The reason for obtaining sanction from the competent authority is that the authority is expected to go through the entire record given by the investigating agency and unless the sanctioning authority finds reasons to be recorded in writing, the sanction would be valid. Though under Section 19(3) of the Act of 1988 and Section 465 of Cr.P.C, any error or omission, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, unless a failure of justice in fact been occasioned thereby. According to P.W.3, he never had an occasion to draw conclusions on the basis of the material provided by the ACB, but mechanically signed on the proforma sanction orders which were sent by the Chief Engineer, that in itself can be accounted as a failure of justice. The very sanctity attributed to the sanctioning authority and the sanction orders are lost in the present facts and circumstances.
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14. In the result, the judgment of trial Court in CC No.44 of 2002 dated 30.12.2006 is set aside and the AOs.1 to 3 are acquitted. Since the appellants are on bail, his bail bonds stand cancelled.
15. Accordingly, Criminal Appeals are allowed.
__________________ K.SURENDER, J Date: 13.10.2022 Note: LR copy to be marked.
B/o.kvs 15 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL Nos.22, 28 and 100 of 2007 Date: 13.10.2022.
kvs 16