Telangana High Court
Mir Younas Ali, Subedari, Hanamkonda vs State Of A.P.Rep Inspector Of Police, ... on 5 July, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.399 OF 2011
JUDGMENT:
1. The appellant is questioning the judgment of the Special Court whereby the Special Court has convicted him for the offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act vide judgment in C.C.No.6 of 2010 dated 28.03.2011 and sentenced to undergo rigorous imprisonment for a period of one year under both counts.
2. Briefly, the case of P.W.1/defacto complainant is that his father was a contractor and also doing cultivation. In the year 2001, contract was awarded for digging an open drinking water well in a school situated at Korivi, Warangal District. Agreement was executed on 07.11.2001. The value of the contract was Rs.5.00 lakhs and to be completed in six months. Huge stones were found in the well while digging. It was informed to the appellant who was the Assistant Engineer, Deputy Assistant Engineer and Executive Engineer. All the three officials verified the spot and it was informed that excess expenditure would be incurred for removing the stones. 2 Accordingly, assurance was made that Rs.3.00 lakhs would be given for removing the stones. The work was completed. Towards payment, Rs.3,50,000/- was paid by cheques and also rice of Rs.2.00 lakh was received. During execution of the work, the appellant used to record measurements in the diary. According to P.W.1, his father had to receive Rs.1,50,000/- towards final bill. For the said purpose, in the first week of August, 2002, both P.W.1 and his father approached the appellant and requested for final payment. The appellant demanded Rs.10,000/- as bribe for releasing the final bill amount. Again on 31.10.2002, both P.W.1 and his father went to the house of the appellant at 8.00 a.m and requested to pay the amount. However, the appellant stated that earlier also nothing was paid and insisted to pay Rs.10,000/- bribe.
3. Aggrieved by the conduct of the appellant of constantly asking for bribe, P.W.1 lodged Ex.P1 complaint with the ACB. The DSP/ Umakanth (not examined since died) having received the complaint, arranged trap on 02.11.2002. The trap party including P.W.1/complainant, P.W.2/independent mediator, DSP and others gathered at 8.00 a.m in the office of DSP. The formalities before 3 proceeding to trap were followed and completed. The entire proceedings were drafted as pre-trap proceedings, which is Ex.P3.
4. The trap party then went to the house of the appellant. While the other trap party members waited at a distance, P.W.1 went to the house and pressed calling bell. The appellant opened the door and instructed P.W.1 to pay the amount and put it in the table drawer. Appellant pulled out the table drawer and after the amount was placed in the drawer by P.W.1, it was closed. P.W.1 came out and relayed the signal to the trap party indicating demand and acceptance of bribe by the appellant. The trap party went to the house and one of them pressed the calling bell. The wife of appellant, who was arrayed as A2 (acquitted by Court below) opened the door. The DSP enquired about the appellant and A2 informed that appellant left. The trap party observed that the appellant was leaving through kitchen door and he was stopped by constables and questioned by DSP. Sodium carbonate solution test was conducted on the hands of the appellant and test on both hands remained colourless. The appellant stated that he did not receive any amount from P.W.1. A woman constable was called. 4 P.W.1 was questioned as to what transpired after he entered into the house. He stated that the amount was placed in the table drawer. The DSP pulled table drawer and amount was not available. However, two papers were found. The presence of phenolphthalein powder was tested on the papers, which yielded positive result. Thereafter, the test was conducted on the hands of the wife (A2) of the appellant. The right hand test turned positive. The left hand test remained negative. On questioning, A2 pointed out that the amount was placed in the bag, which was in the cupboard. The school bag was taken out and it was turned upside down by A2. The amount fell on the ground. The amount was picked up, verified and also the school bag was subjected to test, which yielded positive result.
5. The resultant solutions of (i) hands of the appellant and A2, (ii) paper found in the table drawer; (iii) the school bag were preserved. Post-trap proceedings were concluded. The investigation was thereafter handed over by the DSP to P.W.5, who concluded investigation and filed charge sheet for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the Act against A1 and Section 12 of the Act against A2, wife of the appellant.
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6. The prosecution examined P.Ws.1 to 5 and marked Exs.P1 to P10. Exs.MOs.1 to 12 were also brought on record by the prosecution. The defence examined D.Ws.1 to 3 and marked Exs.D1 and D2. The Court marked Exs.X1 to X5.
7. Learned Special Judge found that the evidence of demand and acceptance of bribe as projected by the prosecution was convincing. The Special Court further found that though the defence tried to project that no official work was pending with the appellant, however, no reliance can be placed on the said defence. Accordingly, appellant was convicted and A2, wife of the appellant was acquitted.
8. Learned counsel appearing for the appellant mainly argued on the basis of the evidence of P.Ws.4, 5 and Exs.X1 to X5 documents. Counsel contended that even according to the prosecution witnesses, the work was not complete and whatever work was completed, payment was already made. In the said circumstances, the question of demand and acceptance of amount does not arise. The appellant was falsely implicated since it is apparent from the record that the amounts were due and payable to the father of 6 P.W.1 was already paid. In fact, the father of P.W.1 was not examined before the Court. When the prosecution failed to prove that there was no work pending before the appellant, the question of demanding and accepting bribe does not arise.
9. Learned counsel for the appellant relied on the following judgments: i) State of Kerala and another v. C.P.Rao ((2011) 6 Supreme Court Cases 450); ii) Punjabrao v. State of Maharashtra (2002) 10 Supreme Court Cases 371); iii) P.Satyanarayana Murthy v. District Inspector of Police and another (2015(2) ALD (Crl.) 883 (SC); iv) Sujit Biswas v. State of Assam (2013(3) ALT (CRI.) (SC) 316 (D.B); v) B.Jayaraj v. State of Andhra Pradesh ((2014) 13 SCC 55); vi) Lachman Dass v. State of Punjab (AIR 1970 Supreme Court 450).
10. On the other hand, learned Special Public Prosecutor would submit that it is not in dispute that the work was executed by the father of P.W.1. In the complaint, it is mentioned that the appellant insisted for the amount of Rs.10,000/- also for the purpose of releasing earlier bills and for the work which was already executed. Since the appellant is the person, who would enter the 7 measurements in the M-Book and thereafter, bills are released, the demand, as alleged by the prosecution can be believed. Further, on the date of trap, amount was received by the appellant and his wife had taken the amount and placed it in the cupboard. In the said circumstances, the prosecution had proved its case. Learned Special Judge had rightly concluded regarding the guilt of the appellant.
11. Having considered the arguments of both sides, the evidence of P.Ws.4 and 5 regarding pendency of work would be relevant. P.W.4 deposed as follows:
"By August, 2002 the particular work originally entered was not completed. On my directions AO prepared working estimates for exclusion of hard rock and AO prepared the revised working execution and submitted the same to me through DEE on 9.9.2002 received in my office on 10.9.2002. The same is Ex.X2. Ex.X3 is revised estimate with covering letter. The revised estimate approved given by CE on 22.1.2003. In pursuant of the same I gave my technical sanction on 4.3.2003 under Ex.X4 and in the month of August 2003 the successor of AO by name Chandra Shekhar prepared the final bill and submitted the same to me. By the date of preparation of revised estimates Lakshma was due an amount of Rs.1,83,943/-. As per Ex.P4 by 17.9.2002 the entire cash component due payable to Lakshma was paid to him. The original estimate work after completion AO submitted the bill and the entire cash component was paid to the contractor Lakshma and no official favour of preparing the bill by 31.10.2002 and on 2.11.2002 is pending with AO. Since the revised estimates are yet to be finalized AO cannot prepare any final bill for the revised estimates."8
P.W.5 deposed as follows:
"The work was allotted to the father of PW-1 on 7.11.2001. Between 7.11.2001 and 31.10.2002 around Rs.7,00,000/- was paid to the contractor. Out of which Rs.5,50,000/- is cash component and Rs.1,50,000/- is the rice component. The original estimate of the work was upto Rs.5,00,000/- as per Ex.P1. As per Ex.P1 contents part payments were also made for the extra works done. As per Ex.P1 AO made the demand in the month of August, 2002. As per the M-book entry, Pw-1 received cheque for Rs.2,00,000/- on 17.9.2002. As per Ex.P1 contents the demand was made by AO for preparation of the final bill. By the end of July, 2002 the contractor has not completed the work. As on 31.10.2002 as per the statement of Pw-4 EE the revised work estimates were sent to the Chief Engineer for enhancement of estimation. The record do not show that as on 31.10.2002 or on 2.11.2002 the revised estimates were approved by the Chief Engineer. In Ex.P1 there is no endorsement of verification."
12. According to the version of P.Ws.4 and 5 on the basis of documents that were produced before the Court, the payment for the work already done was already made to P.W.1's father and no amount was pending.
13. It is not in dispute that the work was executed by P.W.1's father. According to the complainant/P.W.1, the appellant was insisting for bribe for the amount that was already released and yet to be paid. In the back ground of the present circumstances, when P.W.4 has stated that the additional work was completed only in the 9 year 2003, months after the trap, it has to be looked into whether the prosecution had succeeded in proving the factum of demand and acceptance by the appellant.
14. There is no reason given by the appellant as to why he would be falsely implicated. Defence was taken that no work was pending with the appellant and witnesses D.Ws.1 to 3 were also examined. D.W.1 is the domestic servant, who was allegedly working in the house when the trap has taken place. D.W.2 is another witness who says that the work was not completed by the father of P.W.1 and it was completed only after the trap. D.W.3 is another witness, who stated that he was present in the house around 9.00 a.m. According to him, he was inside the house when P.W.1 entered into the house and kept a wad of currency notes in the upper table drawer, though the appellant resisted. Then the appellant went out of the office room as he was going to attend nature call. A2, then came into the office room, picked up currency notes and went inside and thereafter, ACB officials came into the office and asked about D.W.3's particulars and his particulars were given to DSP. 10
15. The presence of D.W.1 and D.W.3 does not find place in the post-trap proceedings. It was not even suggested to P.W.1/complainant, P.W.2/independent mediator and P.W.5/investigating officer that D.Ws.1 and 3 were present in the house when trap has taken place. For the very first time, the witnesses D.Ws.1 and 3, were introduced at the stage of defence evidence and new version regarding their presence and the manner in which the amount was placed in the table drawer is stated.
16. D.W.3 stated that P.W.1 came into the house and placed currency notes forcibly in the table drawer. Then, appellant left for attending nature call. Thereafter, the wife/A2 came and took the currency notes and went inside. The entire sequence appears to be highly improbable. If P.W.1 had forcibly kept the amount in the table drawer, immediate conduct of appellant would be either to return it or ask it to take it back and not leaving the room to attend nature call when both P.W.1 and D.W.3 were present in the room. The said version given by D.W.3 cannot be believed not only for the fact that he was introduced for the first time during defence but 11 also from the sequence of events which improbablise the version of D.W.3.
17. The conduct of the appellant and events on trap date would be relevant in the present case. P.W.1 entered into the room and placed currency in the table drawer and left. Immediately, thereafter when ACB personnel were at the door, which was opened by A2, the appellant tried to flee from the back door and was apprehended. If appellant had not intimated A2 about the currency, the question of A2 taking amount, going inside and placing it in the school bag in the cupboard, does not arise. As already discussed, D.Ws.1 and 3 deposed that they were present in the room, which cannot be believed. Attempt is made to show that no work was pending with the appellant. The allegation is that demand was also made for the released amount. The defence raised by the appellant is not only improbable but different versions are given. His conduct coupled with other events on the trap day clearly reflects that amount was received from P.W.1 towards bribe. There are no grounds to interfere with the finding of the Special Court. 12
18. Accordingly, Criminal Appeal is dismissed. Since the appellant is on bail, the Special Court is directed to cause appearance of the appellant and send him to prison to serve out the remaining period of sentence. The remand period, if any, shall be given set off under Section 428 Cr.P.C.
__________________ K.SURENDER, J Date: 05.07.2024 kvs