HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1122 OF 2007
JUDGMENT:
1. The appellant/AO is convicted for the offence under Sections 7 and Section 13(1)(d) r/w 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 one year under both counts, vide judgment in CC No.26 of 2003 dated 06.08.2007 passed by the Additional Special Judge for SPE & ACB Cases, City Civil Court at Hyderabad. Aggrieved by the same, the present appeal is filed.
2. Briefly, the case of the ACB is that P.W.1 is the proprietor of M/s.Nagapadma Engineering Works, Kukatpally of Ranga Reddy District. Electricity connection was provided to his shop in the month of June, 2001. On 30.08.2001, the capacitor was also fixed. However, the capacitor surcharge was being included in the monthly electricity bill. For the said reason, he approached the Assistant Engineer on 19.10.2002 and submitted an application stating his grievance of additional charges. The said letter was sent to the Assistant Accounts Office (AAO) for adjusting the capacitor surcharge bill. On 22.10.2002, P.W.1 met the appellant, who was 2 working as Upper Divisional Clerk (UDC) in the office of AAO. Again P.W.1 met the appellant on 28.10.2002 on which date, the appellant demanded an amount of Rs.2,500/- for adjustment of the excess payments, however reduced the amount to Rs.1,500/-. Aggrieved by the said demand of bribe, P.W.1 approached the ACB and lodged a complaint on 29.10.2002 and the trap was arranged on 30.10.2002.
3. The trap party which included the complainant, independent mediators, DSP and Inspectors of ACB conducted pre-trap proceedings in the office and drafted pre-trap proceedings under Ex.P4. Thereafter, the trap party proceeded to the office of the AAO. P.W.1-complainant and P.W.2-independent mediator went into the office of the appellant. However, P.W.1 alone went inside the room of the appellant whereas, P.W.2 was standing outside and after some time, both the appellant and P.W.1 came out of the office. P.W.1 asked P.W.2 to get a cover for keeping money. Accordingly, P.W.2 brought a cover and gave it to the P.W.1. P.W.1 asked P.W.2 to sit in the appellant's office. P.W.1 passed on the bribe amount kept in a cover to the appellant, who received with his right hand 3 and kept the cover in the right side hip pant pocket. P.W.1 then relayed the signal to the trap party indicating the acceptance of bribe by the appellant. P.W.9, DSP and other trap party members accosted the appellant and conducted sodium carbonate solution test on the hands of the appellant and the right hand solution turned positive. After concluding the post trap proceedings and seizure of concerned files, Ex.P7-post trap proceedings were drafted. The investigation was then handed over to P.W.10-investigating officer for the purpose of investigation.
4. Learned counsel appearing for the appellant submits that the very basis for complaint is proved to be false as the electrical surcharges were already adjusted on 28.10.2002 itself when P.W.1 allegedly met the appellant. The said fact was spoken to by the prosecution witnesses i.e., P.Ws.3 to 6. When there was no work pending with the appellant, the question of demanding bribe does not arise. Further, P.W.8 who granted sanction was the then Superintendent Engineer and was not competent to remove the appellant from his service, for which reason, the sanction is bad in law. He relied upon the judgment of this court in Crl.Appeal 4 No.1404 of 2007 in which case, the sanction granted by P.W.8 was also the sanctioning authority in the said case. While disposing off the appeal, this Court found that the sanction granted by P.W.8 therein was not proper as he was not the authority to remove the officer from his service.
5. On the other hand learned Special Public Prosecutor submits that official favour was pending with the appellant, for which reason consequent recovery of money proves that there was a demand. He further submits that it is not to the knowledge of P.W.1 that the capacitor surcharge amount was already adjusted, for which reason, it cannot be said that no official favour was pending. For the reason of recovery that was made pursuant to demand presumption is raised. However, the appellant failed to rebut the presumption, as such, the finding of the learned Special Judge cannot be interfered with. He relied upon the judgment of Hon'ble Supreme Court in the case of Kanshi Ram v. State of Punjab [(2005) 12 Supreme Court Cases 641], wherein the explanation offered by the appellant was found not to be reasonable or satisfactory and since the tainted money was in his possession, 5 presumption was attracted. As explanation was not sufficient to rebut the presumption, conviction was found to be proper. In the other judgment in the case of State of Andhra Pradesh v. V.Vasudeva Rao [(2004) 9 Supreme Court Cases 319], the Hon'ble Supreme Court reversed the judgment of acquittal. The Hon'ble Supreme Court held that drawal of presumption is a compulsion. The very fact that the accused was in possession of marked currency notes and against an allegation of demand and acceptance is "res ipsa loquitur" that is, recovery itself is enough to suggest demand.
6. The basis for complaint is that there was excess billing for the reason of adding capacitor surcharge. When P.W.1 met the appellant on the date of demand i.e., 28.10.2002, the appellant had completed his part of the job of adjustment of capacitor surcharge in respect of P.W.1's firm. P.W.3-independent mediator admitted in cross-examination that by 28.10.2002, the appellant had completed his job of calculation and adjustment of capacitor surcharge in respect of M/s. Naga Padma Engineering works, Kukatpally. The recommendation of appellant was approved by the Junior Accounts 6 Officer as well as Assistant Accounts Officer on 28.10.2002, which finds place in page Nos.112 and 113 of high value register that was seized on the day of trap.
7. Similarly, P.W.6 admitted that on 28.10.2002 itself, the appellant had put up a note in Ex.P11 register noting that that the amount of Rs.12,129/-has to be withdrawn in favour of P.W.1's firm. The appellant had completed his job as on the date of alleged demand. If a demand was made, the official work, which is pending before the appellant would have been held up for some reasonable time. On the date of alleged demand when P.W.1 met the appellant, the appellant had completed his job. The fact of completing his job would be known to P.W.1 if an enquiry was made. Unless a person is compelled to pay bribe, he does so to get his work done. Since the work was already done on the date of alleged demand, the evidence of P.W.1 becomes doubtful.
8. Learned Judge has found that the completion of job on 28.10.2002 itself was not known to P.W.1, for which reason, he had lodged complaint on 29.10.2002. On the date of trap i.e., 30.10.2002, the work of P.W.1 was already complete. If enquired, 7 the fact would have been known to P.W.1. Admittedly, the concerned file was already sent to the Assistant Accounts Officer and the reversal of surcharge was already done on 29.19.2002.
9. The conduct of P.W.1 on the date of trap is suspicious. At the first instance when he entered into the office of the appellant, P.W.1 asked P.W.2 to stay at the entrance. The very purpose of DSP asking P.W.2 to accompany P.W.1 is to lend credibility to the version of P.W.1 that there was demand of bribe. P.W.2 was asked to accompany P.W.1 to verify the correctness of the version of P.W.1 regarding the demand and also to seek corroboration from an independent person. Contrary to the instructions of the DSP, P.W.2 stayed outside as instructed by P.W.1. Though, P.W.1 states that the appellant asked for cover to place the bribe amount, the said statement is doubtful. When the appellant had already asked for money and P.W.1 indicated that he had brought the amount, there is no reason why the appellant would ask P.W.1 to put it in a cover and give it to him. Further suspicion is the conduct of P.W.1 who asked P.W.2 to get cover and after getting cover, again asked P.W.2 to stay away. The reason for P.W.1 keeping P.W.2 outside the room 8 and not permitting him to view the transaction in between the P.W.1 and the appellant is all the more doubtful. However, P.W.1 and the appellant went outside to the tea stall. Even then, P.W.2 did not accompany to Tea stall. It is the case of the appellant that the amount, which was placed in a cover was thrust into his pant pocket. The thrusting of amount by P.W.1 was stated by defence witness D.W.2. The version of the appellant that the amount was thrust in his pant pocket lends credibility when viewed in the background of P.W.1 prohibiting P.W.2 to accompany him twice in spite of the instructions of DSP. The conduct of P.W.1 itself shows that he was waiting for an opportunity to thrust the amount into the pant pocket of the appellant, failing which, peculiar conduct of P.W.1 cannot be explained.
10. The sanction was granted by P.W.9, who was the Superintendent Engineer. While dealing with the case in Criminal Appeal No.1404 of 2007, it was found that PW.9 herein as the Superintendent Engineer, also granted sanction in favouor of the appellant therein. He was found to be not the competent authority on his own admission. It was the Chairman and Managing Director 9 of AP TRANSCO, who was competent authority to grant sanction and P.W.9 had admitted that he was not competent person to remove the appellant from the service. Though no such specific stand was taken by the appellant in the trial court, the ground can be raised for the first time in the appeal before the appellate Court, if it is demonstrated that prejudice was caused for not taking the sanction from the competent authority. In the present case, according to the documents that were seized on the date of trap Ex.P11 and other documents would go to show that there was no work pending with the appellant and it is found that the appellant had already completed his work and sent the file for processing, which was processed on 29.10.2002 itself. If the file was placed before the competent authority, sanction might have been refused for the reason of the appellant already completing his duty and no official work was pending with him. For the said reasons, this court finds that the sanction order Ex.P13 was not by the competent authority and the appellant was prejudiced for the reason of not placing the entire record before the competent authority, who on facts, may have taken a different view and refused sanction. 10
11. For the reason of there being no official work which was pending before the appellant and his job was already completed on 28.10.2002 itself, two days prior to the trap, the evidence of demand becomes doubtful. As discussed above, the sequence of events would clearly suggest that P.W.1 was waiting for the opportunity of thrusting the amount. For the said reasons, benefit of doubt has to be extended to the appellant.
12. In the result, the judgment of trial Court in CC No.26 of 2003 dated 06.08.2007 is set aside and the accused is acquitted. Since the appellant is on bail, his bail bonds stand cancelled.
14. Accordingly, Criminal Appeal is allowed.
__________________ K.SURENDER, J Date: 22.09.2022 kvs 11 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1122 of 2007 Date:22.09.2022.
kvs