Telangana High Court
S.K.Kashmir Kumar, Vanastalipuram., vs State Of Ap. Rep. Spl. Pp For Acb Cases, ... on 24 July, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1145 OF 2013
JUDGMENT:
1. The appellant is sole accused in C.C.No.21 of 2008 on the file of the Principal Special Judge for SPE & ACB Cases, at Hyderabad. He was tried for the offence punishable under Sections 7 & 13(1)(d) r/w 13(2)of the Prevention of Corruption Act and convicted. Aggrieved by the same, present appeal is filed.
2. The appellant was working as the auditor, D-2 Section, Unit-1, Pay and Accounts Office, Hyderabad. P.W.1 was running a mechanic shop and undertaking vehicle repairs of the Prohibition & Excise Department. It is alleged that his bill for Rs.5,945/- towards the Jeep bearing No. ABD-9525 was pending. As per the advice of one S.Vijay Kumar, P.W.1 met the appellant on 06.09.2007 for passing the bill, for which, the appellant demanded bribe of Rs.1,000/-. On request, the bribe was reduced to Rs.700/- to be paid by 7.9.2007. Aggrieved by the demand of bribe, P.W.1 gave complaint to the DSP, ACB on 6.9.2007.
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3. The complaint was received by the DSP/P.W.9 on 06.09.2007 and trap was arranged on 07.09.2007. P.W.1/complainant, P.W.2/independent mediator, P.W.9/DSP and others formed part of the trap party. In the office of the DSP, pre-trap proceedings were concluded and drafted. Ex.P4 is the pre-trap proceedings. The said proceedings were concluded around 3.00 p.m and from there, the trap party went near the office of Pay and Accounts, Tilak Road. P.W.1 went inside the office while other trap party members were waiting at a distance for the signal of P.W.1. P.W.1 met the appellant, who asked for the amount. The said bribe amount was handed over to the appellant. According to P.W.1, appellant promised to pass the bill. P.W.1 came out and signaled to the trap party indicating demand and acceptance of bribe by the appellant. The trap party entered into the office and DSP questioned the appellant regarding the bribe. Test was conducted on the both hands fingers. The right hand test proved positive while the left hand fingers test proved negative. The amount was handed over from his shirt pocket by the appellant.
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4. The resultant solutions of test, the concerned bill Ex.P5 and other documents were seized during the post-trap proceedings and after conclusion, proceedings were drafted under Ex.P10. Investigation was then handed over by P.W.9/DSP to the Inspector/P.W.10, who concluded investigation and after obtaining sanction for prosecution, charge sheet was filed.
5. Learned Special Judge examined P.Ws.1 to 10 and marked Exs.P1 to P13 on behalf of the prosecution. The material objects MOs.1 to 8 were also brought on record during the evidence of prosecution witnesses. The appellant examined D.W.1, who earlier worked as auditor at the relevant time when the trap had taken place.
6. Learned counsel appearing for the appellant would submit that from the evidence and documents placed on record by the prosecution on 18.08.2007 itself, the bill Ex.P5 was returned by the appellant and confirmed by the Office Superintendent on 05.09.2007. However, the present complaint was filed on the next day i.e., 06.09.2007. According to the counsel, P.W.1 had knowledge about the refusal of his bill which was endorsed by the 4 appellant on 18.08.2007 itself and returned with an endorsement "under which authority an amount of Rs.5,945/- was sanctioned towards vehicle repairs." Thereafter, the file was returned which return was approved by the Superintendent.
7. Learned counsel further submits that even on the trap date, Ex.P5 bill was not seized from the possession of the appellant but from P.W.3. In the said circumstances, when no work was pending, even according to the prosecution witness P.W.3, the question of demanding bribe would not arise. Even on the date of trap, independent mediator/P.W.2 stated that, when appellant was questioned during post-trap proceedings, the appellant stated that the amount was forcibly thrust into his shirt pocket and then the amount was taken out from his shirt pocket and handed over. The said fact of thrusting the amount by P.W.1 is also stated by the auditor, who was in the office on the date of trap and examined as D.W.1.
8. Learned counsel relied on the judgment of Hon'ble Supreme Court in the case of Punjabrao v. State of Maharashtra (2002) 10 Supreme Court Cases 371) and argued that the accused can 5 discharge his burden by preponderance of probability and the defence stated even during Section 313 Cr.P.C examination, if found to be probable, the same can be accepted.
9. On the other hand, learned Special Public Prosecutor would submit that Ex.P5 bill was in fact pending and to the knowledge of P.W.1, it was not returned. Keeping P.W.1 in the dark, the demand was made and the money was accepted on the trap day. The bill, though initially rejected, can as well be passed at a later date. For the said reason, the bill under Ex.P5 was passed subsequently on 31.10.2007, which would go to show that the bill was proper. In the said circumstances, the prosecution has proved its case of demand and acceptance by the appellant.
10. The admitted facts in the case are that Ex.P5 bill of P.W.1, which is dated 09.08.2007 was returned by the appellant after ten days i.e., on 18.08.2007. The said return was also approved by Superintendent and the bill was in the 'Return Counter'. The said version is stated by P.W.3 in his chief examination.
11. According to P.W.1, he met the appellant on 06.09.2007 and demand of Rs.1,000/- was made. P.W.1 met the appellant on 6 06.09.2007 since it was informed by one Vijay Kumar that the appellant wanted to meet him. The said Vijay Kumar who allegedly informed P.W.1 to meet the appellant was not examined. There is no mention on which date the said Vijay Kumar informed P.W.1 to meet the appellant. On the day of alleged demand i.e., on 06.09.2007, the very same day, complaint was lodged. When Ex.P5 was scrutinized and returned on 18.08.2007 itself and return being approved, the file was sent to 'Return Counter'. In the said circumstances, the version of P.W.1 that bribe was demanded for paying bill is highly improbable.
12. Though in the post trap proceedings, it was mentioned that Ex.P5 was seized from the possession of the appellant, however, P.W.3 in his chief examination stated that on the date of tap, he obtained bill Ex.P5 from the return counter and handed it over to the DSP. The DSP took photocopy of Ex.P5 and informed that he would take the original bill later. However, it is mentioned in Ex.P10 post-trap proceedings that Ex.P5 was handed over by appellant, which is factually incorrect.
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13. P.W.2/independent mediator stated in his chief examination that the appellant informed DSP that the amount was forcibly kept by P.W.1 in his pocket. P.W.2 is not declared hostile to the prosecution case and it is evident from the record that the said version given by the appellant immediately on the date of trap was not reflected in second mediator's report Ex.P10. It is apparent that the second mediators report Ex.P10 does not contain the actual happenings and drafted with incorrect recitals to suit the case of prosecution. The actual happenings were suppressed regarding Ex.P5 bill and explanation of appellant on the trap day which is fatal to the prosecution case.
14. For the reasons discussed above, the judgment of trial Court in C.C.No.21 of 2008 dated 16.12.2013 is set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall cancel.
15. Criminal Appeal is allowed.
__________________ K.SURENDER, J Date: 24.07.2024 kvs