THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.999 of 2007
JUDGMENT:
1. The appellant is convicted for the charges under Sections 7 and Sections 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') and sentenced to undergo rigorous imprisonment for a period of two years under each count vide judgment in C.C.No.12 of 2003, dated 02.08.2007 passed by the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, present appeal is filed.
2. The case of the prosecution is that the appellant was the Senior Assistant in the office of the Assistant Audit, Suryapet, Nalgonda District. P.W.1/defacto complainant was working as bill collector of Grampanchayat, Khanapur village of Kodad Mandal. The District Panchayat Officer, Nalgonda issued orders on 03.01.2002 to the Sarpanch of Khanapur Grampanchayat to pay allowances to P.W.1 as per G.O.Ms.No.557. The Sarpanch, Khanapur sent a letter to the Assistant Audit Office, Suryapet requesting for pay fixation of P.W.1 and handed over the said 2 letter along with service book and pay fixation bill to the appellant. Appellant after scrutinizing, calculated and prepared pay fixation bill for Rs.39,876/- and demanded an amount of Rs.15,000/- as bribe to send it to the Assistant Audit Office for approval. However, the said bribe was reduced to Rs.12,000/-.
3. It is further the case that P.W.1 paid an amount of Rs.3,000/- to the appellant on 18.02.2002 at his house for his approval. The appellant demanded the remaining amount of Rs.9,000/- and directed P.W.1 to pay, failing which the bill would not be processed. Aggrieved by the demand, P.W.1 filed complaint Ex.P1 on 01.03.2002.
4. The Trap was arranged on 02.03.2002. The DSP summoned independent mediators, Inspector and complainant and conducted pre-trap proceedings under Ex.P5 at ACB Office in Nalgonda. After conclusion of pre-trap proceedings the trap party members started at 11.00 a.m and proceeded to the house of the appellant.
5. P.W.1 entered into the house of the appellant and found that the appellant was not present. He then made a phone call to 3 the appellant, who came to his house at 12.40 p.m. PW1 entered into the house and ten minutes later at 12.50 p.m, the complainant came out of the house and gave pre-arranged signal indicating acceptance of bribe by the appellant. The trap party entered into the house and conducted tests on the hands of the appellant, which turned positive. When questioned about the amount, the appellant opened the right side drawer of his table and gave the amount. On further questioning, the appellant stated that the records which were in his custody were handed over by bill collector of Mogalai Kota to verify regarding the calculation being correct or not. The appellant also stated that the amount of Rs.9,000/- from P.W.1 was obtained as a loan. The post trap proceedings were drafted under Ex.P11.
6. After conclusion of trial, the ACB filed charge sheet for the offences under Section 7 and Section 13(1)(d) r/w 13(2) of the Act and after conclusion of trial, having examined P.Ws.1 to 11 and marking Exs.P1 to P18 produced by the prosecution and also examining D.Ws.1 to 6 and Exs.D1 to D34 and Exs.X1 to X5, the learned Special Judge convicted as stated supra. 4
7. Learned counsel for the appellant submits that both the dates i.e., 20.01.2002 and also 18.02.2002, which is the date of second demand and part payment of Rs.3,000/-, the appellant was at audit camp at Ganapavaram Gram Panchayat. Ex.D9 tour program, Ex.D10-audit report, Ex.D11-TA bill for January of Rs.20,000/- and attendance register were marked to show that the appellant was on tour on the said date. D.W.5, who is the Sarpanch of Ganapavaram village also stated that from 19.01.2002 to 28.01.2002, the appellant was on audit duty, which is evidenced under Ex.X1.
Further on 18.02.2002, P.W.1 was in the office of STO, Kodad for encashment of Cheque issued for Rs.20,000/-. During cross-examination, P.W.1 stated that he was collecting cheque from his office at Khanapur. D.W.3, Sarpanch of Kanapur village was examined along with P.W.1 on the said date when the cheque was encashed. Further, the appellant was on audit camp as stated by D.W.6 at Dharampuram Gram Panchayat Exs.X4 and X5 mediators of tour program and Ex.P13 attendance register and the evidence of P.W.4 also state that the appellant was on audit duty on 18.02.2002.
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8. Learned counsel further submits that when the appellant was not available in his house on 18.02.2002 and P.W.1 was at the office of STO Kodad withdrawing his salary, the question of meeting and making part payment on 18.02.2002 does not arise. Finally, he submits that there was no official favour, which was pending with the appellant. According to P.W.4, one B.Sunder Reddy was entrusted with Kodad Mandal as per Office Order Ex.D8 for the year 2001-2002. The audit report Ex.D3 of the said B.Sunder Reddy and Ex.D9 tour programme would go to show that the appellant was not concerned with the Khanapur gram panchayat. He also submits that P.Ws.3, 4, 5 and 6 stated that they submitted bills to the appellant, which cannot be believed for the reason of; i)The duty of Kandibanda gram panchayat was allotted to one Rathan Singh as per Ex.D8 Office Order; ii) the motive for false implication is that the appellant conducted audit of Khanapur gram panchayat where P.W.1 was working during 1997-1998 and reported that his appointment was irregular and he should be removed from service and his salaries recovered; iii) Ex.D14 is the audit report for the year 1997-1998. Similarly, the appellant conducted the audit of 6 Mogalai Gram Panchayat, where PW.3 was working and submitted a report that his appointment was irregular and he should be removed from his service. Ex.D27 is the audit report for 1996-1997; iv) The appellant conducted audit of Gondriyala Gram Panchayat where P.W.5 worked for the year 1996-1997 and reported that his appointment was irregular and his salary should be recovered. Ex.D17 is the audit report for 1996-1997.
9. Learned counsel for the appellant submits that there is a strong motive for the witnesses to speak against the appellant, which is apparent from the record, as such the appellant is entitled to be acquitted for the offence alleged.
10. In support of his arguments, learned counsel for the appellant relied upon the following judgments; i) Muralikonda v. State of A.P1, ii) N.Vijayakumar v. State of Tamil Nadu2;
iii) Gulam Mahmood A.Mahek v. State of Gujarat3;iv) Sat 1 2002 (2) ALD (Crl.) 249 (AP) 2 2021 Cri.L.J 1353 3 AIR 1980 Supreme Court 1558 7 Paul v. Delhi Administration4; v) P.Satyanarayana Murthy v. District Inspector of Police5.
11. On the other hand, learned Special Public Prosecutor submits that there is rampant corruption in audit offices and the appellant had demanded nearly 50% of the arrears that were due to P.W.1. In spite of paying the amount of Rs.3,000/-, the appellant did not complete his work and demanded remaining amount of Rs.9,000/- to be paid. Aggrieved by the same, complaint was lodged. Since the appellant miserably failed to discharge his burden, the conviction cannot be interfered. In support of his contention, he relied upon the following judgments ; i) Kanshi Ram v. State of Punjab6; ii) State of A.P v. V.Vasudeva Rao7; iii) T.Shankar Prasad v. State of A.P8. 4 AIR 1976 Supreme Court 294 5 AIR 2015 Supreme Court 3549 6 (2005) 12 Supreme Court Cases 641 7 (2004) 9 Supreme Court Cases 319 8 (2004) 3 Supreme Court Cases 753 8
12. The appellant has produced evidence that on 20.01.2002 on the date of first demand, the appellant was on audit camp at Ganapavaram Gram Panchayat and marked Exs.D9 to D11 to prove the same. Ex.P13 is the Attendance Register, which also indicates that the appellant was on tour. He has examined the Sarpanch of Ganapavaram Gram panchayat and also marked Exs.X1 to X3, which proves presence of appellant at Ganapavaram. On the second date of demand i.e., 18.02.2002 also, the appellant examined D.W.3 Sarpanch to state that P.W.1 was with DW3 at Kodada for collecting his salary. He further examined D.W.6 to show that that the appellant was at audit camp at Dharampuram Gram Panchayat and marked Exs.X4 and X5 which are cash book and tour program, the attendance register Ex.P13 also indicates that the appellant was on tour on 18.02.2002.
13. The said documentary evidence would go to show that on both the dates when the alleged demand was made and part payment was made in the house of the appellant, the appellant was on audit duty at different places. Further P.W.1 was at Kodada withdrawing his salary on 18.02 2002. In the said 9 circumstances, the timing of payment and that appellant was available in his house has to be established by the prosecution. More so for the reason of PW1 also being at Kodad withdrawing his salary. During the course of cross-examination PW1 stated that he met appellant at 11AM, which is highly improbable in the above mentioned circumstances. In view of the documentary evidence available on record, it cannot be said that the appellant was available in the house on both the dates.
14. On the date of trap, P.W.1 stated that the amount of Rs.9,000/-was received as a loan, which was sent by D.W.1 and the same is mentioned in Ex.P11, the post trap proceedings. The spontaneous explanation regarding the loan being given was explained in detail during the course of trial by examining D.W.1. He stated that he sent the said amount through P.W.1, who was his partner as per Ex.D34 registration of finance company.
15. P.W.4, who is the Assistant Audit Officer stated that as per Ex.D8 office order, B.Sunder Reddy was entrusted with Kodad Mandal during 2001-2002. Khanapuram Gram Panchayat of P.W.1 was under said Sunder Reddy as per Ex.D8 office order. It 10 is borne by record that the appellant had reported that the appointment of P.Ws.1, 3 and 5 was irregular and they should be removed from service and salaries recovered. The said audit reports of P.W.1 was marked as Ex.D14, which report is against P.W.3 and marked as Ex.D27 and the audit report against P.W.5 was marked as Ex.D17.
16. In the present case, the appellant had provided documentary proof to show that he was not present on the both the dates of payment. Further he was not responsible for the audit of Ganapavaram Gram Panchayat of P.W.1, but it was one Sundar Reddy. On the date of trap, the spontaneous explanation was given that the amount was taken as loan and appellant examined D.W.1 to prove the same. The audit reports are marked showing that the appellant had suggested that the appointments of P.Ws.1, 3 and 5 are irregular.
All the circumstances regarding the two demand dates, pendency of work, explanation given during post trap proceedings and the reports that were made by the appellant against P.W.1 cumulatively give rise to a strong suspicion that that the appellant was implicated in the said case. Since the 11 prosecution has failed to prove the demand beyond reasonable doubt and the appellant has discharged his burden of proving his defence by examining defence witnesses with corresponding documentary proof, the benefit of doubt has to be extended to the appellant.
17. In view of the foregoing discussion, the conviction recorded by the learned Sessions Judge in CC No.12 of 2003, dated 02.08.2007 is set aside. Since the appellant is on bail, his bail bonds shall stand cancelled.
18. Accordingly, Criminal Appeal is allowed.
_________________ K.SURENDER, J Date: 06.09.2022 kvs 12 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.999 of 2007 Dated: 06.09.2022 kvs