THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.836 & 837 of 2008
COMMON JUDGMENT:
1.
The appellants are A1 and A2, convicted and sentenced to undergo rigorous imprisonment for one year each for the charge under Sections 7 and Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') in C.C.No.30 of 2003, dated 27.06.2008 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, present appeal is filed.
2. Criminal Appeal No.836 of 2008 is preferred by AO2 and Criminal Appeal No.837 of 2008 is preferred by AO1. Since both these appeals arise out of judgment in CC No.30 of 2003, they are being heard together and disposed off by way of this Common Judgment.
3. For the sake of convenience, the parties herein after will be referred to as arrayed before the trial Court.
4. AO1 was Additional Assistant Engineer and AO2 was Sub Engineer in the office of the Divisional Engineer (Electrical and 2 Operations) City VI, APCPDCL, Bowenpally. The case of the prosecution is that P.W.1 was working as Factory Manager in R.C.Metal Fabs at Hyderabad of which P.W.3 is the proprietor. On behalf of R.C. Metal Fabs, P.W.3 applied for 10 HB Industrial Electric power on 30.06.2001 in the office of the Divisional Engineer (Operations) wherein AOs 1 and 2 were working. On 09.06.2001, the Divisional Engineer forwarded the application to AO1. When P.W.1 met AO1 on 09.06.2001, AO1 demanded to pay Rs.6,000/- as bribe and referred the concerned file to AO2. AO2 also made demand of Rs.2,000/-. The case was pending and during November, 2001, when P.W.1 again met AOs.1 and 2 they informed that bribe as demanded earlier has to be paid. Since 10 HB industrial electric supply was not sanctioned, manufacturing process was stalled. P.W.1 met AOs.1 and 2 twice in the month of November, 2001 and again on 04.12.2001. The bribe amount was reduced by AO1 to Rs.4000/- and AO2 to Rs.1000/-. According to P.W.1, P.W.3 instructed him to complain to ACB about AOs 1 and 2. Accordingly, on 05.12.2001, P.W.1 lodged Ex.P1 complaint in writing. The trap was arranged on the same day at 2.00 p.m. At 2.00 p.m, the trap 3 party members gathered in the office of ACB and after following the pre trap formalities, prepared Ex.P3 pre-trap proceedings. The trap party went to the office of AO around 5.00 p.m. P.Ws.1 and 2 went into the office and when demanded by AO1 and AO2, the bribe amount of Rs.4,000/-was paid to AO1 and Rs.1,000/- was paid to AO2. P.W.2 relayed signal to the trap party indicating acceptance of bribe by AOs.1 and 2, as such, the trap party entered into the office and conducted tests on the hands of AOs.1 and 2. The amount of Rs.4,000/- was recovered from the pocket of AO1 and the amount of Rs.1,000/- was recovered, which was placed in the attendance register. The tests conducted on the hands of both the AOs.1 and 2 proved positive and thereafter, the post trap proceedings under Ex.P10, was prepared. P.W.9, the DSP handed over investigation to P.W.10 and after conclusion of investigation, charge sheet was laid for the offences under Sections 7 and Section 13(1)(d) r/w Section 13(2) of the Act.
5. The prosecution examined P.Ws.1 to 11 and marked Exs.P1 to P21. On behalf of the accused, D.Ws.1 to 3 were examined and marked Exs.X1 to X9 in support of the defence. After 4 conclusion of trial, learned Special Judge found the appellants guilty as stated above.
6. Sri T.Niranjan Reddy, learned Senior Counsel appearing for the appellants would submit that at the very inception, during post trap proceedings AO1 stated that the amount was given towards purchase of meter. Ex.X1 marked through P.W.1, which is a letter addressed by P.W.3 dated 29.11.2001 undertaking to purchase a new meter through a representative. P.W.1 was working on commission basis in the factory of P.W.3 However, P.W.3 did not support the case of the prosecution. Further the independent mediators P.W.4-Divisional Engineer, P.W.6- Divisional Engineer (Stores), P.W.7-Junior Assistant, District Registrar of Assurances, who is the other mediator have all turned hostile to the prosecution case. Section 164 Cr.P.C statement of P.W.1 was recorded before the Metropolitan Magistrate as admitted by PW10, however, the said statement was suppressed. From the evidence of P.W.1, he did not know the procedure to be followed for installing new meter. In fact, the proprietor, P.W.3 stated that he has given letter dated 29.11.2001 and received quote from AO1 for Rs.3,996/- for 5 installing of new meters. According to P.W.4, the memos issued by the department Exs.X3 and X4 indicate that the customers can purchase new meters at their expense. Similarly, P.W.5 also marked Exs.X5 and X6, which reflect the allotment of letters to different sections and that there were no new three phase meters in Ferozguda Section. AOs.1 and 2 have proved their defence, which was stated at the earliest point of time in the second mediator's report Ex.P10 that the amount of Rs.4,000/- was towards purchase of new meter which was undertaken to be paid by P.W.3. Except P.W.1 none of the witnesses P.W.2 independent mediator, nor P.W.3 who is the owner of the industry have spoken anything about demand of bribe by the appellants, for which reason, the appellants are entitled to be acquitted. Further the sanction is bad in law for the reason of the ACB not providing documents to the sanctioning authority and apparently the sanction was mechanically granted.
7. Learned counsel for the appellants relied upon the following judgments; i) Suraj Mal v. State (Delhi Administration) [(1979) 4 Supreme Court Cases 725], wherein the Hon'ble Supreme Court held that mere recovery of bribe money divorced from the 6 circumstances under which it was paid is not sufficient to convict when the substantive evidence in the case was not reliable; ii) C.M.Girish Babu v. CBI, Cochin, High Court of Kerala [(2009) 3 Supreme Court Cases 779], wherein the Hon'ble Supreme Court held that mere recovery is not enough and the accused can discharge his burden by preponderance of probability; iii) V.Sejappa v. State by Police Inspector Lokayukta, Chitradurga {(2016) 12 Supreme Court Cases 150], wherein it is held that when demand is not proved, the appellant has to be acquitted; iv) T.K.Ramesh Kumar v. State through Police Inspector, Bangalore [(2015) 15 Supreme Court Cases 629], wherein it is held that though recovery was made, however, in the absence of proof of demand, there cannot be conviction under Sections 7 and 13(1)(d) r/w Section 13(2) of the Act.
8. On the other hand, learned Special Public Prosecutor for ACB submits that though the witnesses P.Ws.2, 3, 4, 6 and 7 were declared hostile to the prosecution case, it does not have bearing on the demand and acceptance of bribe by the appellants. P.W.1's evidence is sufficient to infer that the industry of P.W.3 had applied for 10 HB industrial power 7 connection, for which, new meter was required. Over a period of nearly six months, meter and power supply was not provided, as such, vexed by the demand made by the appellants, Ex.P1 was lodged. The circumstantial evidence in the case is sufficient to record conviction.
9. In reply to the arguments of the learned counsel for the appellants that the sanction was not proper and the sanctioning authority was not provided with the documents of the case, the learned Public Prosecutor relied upon the judgment of Hon'ble Supreme Court in the case of Girish Kumar Suneja v. CBI [Crl.Appeal No.1137 of 2017, dated 13.07.2017 arising out of SLP (Crl.) NO.9503 of 2016], wherein it was held that unless prejudice was shown and when the Court after judicial scrutiny finds a person guilty, the question of sanction would be inconsequential.
10. P.W.3 who is the owner of the industry in which electric connection was sought, did not support the case of P.W.1 regarding the demand of bribe by AOs.1 and 2 contrary to the version of P.W.1. P.W.3 stated that the amount was paid for purchase of new meter, which request for new meter was made 8 vide Ex.X1 letter dated 29.11.2001. Though the witness was treated as hostile by the prosecution, the version of P.W.3 that he intended to purchase a new meter at the cost of Rs.3,996/- is supported by document Ex.X1. Exs.X3 and X4, are the memos issued by the department which permit purchase of meters at the customer's expense, as stated by P.W.4, the Divisional Engineer. P.W.5, the Additional Divisional Engineer has stated that there were no three phase meters in Ferozguda Section.
11. At the earliest point of time, when the DSP questioned AO1 regarding Rs.4,000/-, he stated that P.W.1 brought Rs.4,000/- for purchase of 3 phase high quality meter. He narrated that the industry of P.W.3 was not given three phase meter as there was no supply of meters. Pursuant to the request of P.W.3, the amount was received towards purchase of meter. The said version is corroborated by the evidence of P.Ws.3, 4 and 5 under Exs.X1 to X4 and the version of AO1 recorded during post trap proceedings.
12. Both the independent mediators, P.Ws.2 and 8 did not state anything about alleged demand made by the appellants on the trap day. In the back ground of an application that was made 9 by PW3 for purchase of meter which was pending consideration for which amount was accepted by AO1. In view of the evidence of P.Ws.3, 4 and 5 and Exs.X1 to X5, the appellants have discharged their burden of proving that the amount was not towards bribe. The amount of Rs.1,000/- was recovered, which was placed in the attendance register, for the reason of this Court not believing the version of PW.1 that there was a demand from these appellants for providing electric connection, recovery from the attendance register of Rs.1,000/- is of no consequence. For the said reason, the prosecution has failed to prove that there was demand of bribe and further AO1 explained the reason for receipt of the said amount at the earliest point of time, supported by the documentary evidence for which reasons benefit of doubt is extended to the appellants.
13. In the said circumstances, the prosecution has failed to prove its case beyond reasonable doubt, however the appellants have discharged their burden as discussed above.
14. For the aforementioned reasons, the conviction recorded by the trial Court in CC No.30 of 2003 dated 27.06.2008 is set aside 10 and the appellants are acquitted. Since the appellants are on bail, their bail bonds shall stand cancelled.
15. Accordingly, Criminal Appeals are allowed.
_________________ K.SURENDER, J Date:20.09.2022 kvs 11 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.Nos.836 & 837 of 2008 Dated:20.09.2022 kvs