Telangana High Court
B. Raghu Kumar, vs The State Of Ap Rep By Its Spl. Pp Hyd. For ... on 13 November, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
CRIMINAL APPEAL No.1795 OF 2007
*****
Between:
B.Raghu Kumar ... Appellant
And
The State ACB, City Range-I ... Respondent
DATE OF JUDGMENT PRONOUNCED: 13.11.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+CRIMINAL APPEAL No.1795 OF 2007
% Dated 13.11.2024
#M.Raghu Kumar ... Appellant.
And
$ The State ACB, City Range ... Respondent
! Counsel for the Appellant: Sri M.Vishwanath Prasad
^ Counsel for the Respondent: Sri Sridhar Chikyala,
Spl. Public Prosecutor.
>HEAD NOTE:
1
AIR 1976 SC 1497
2
(2007) 3 SCC (Cri) 475
3
Criminal Appeal No.1592 of 2022 dated 17.04.2023
4
2009 (6) SCC 587
5
2014 (13) SCC 55
6
AIR 2012 SC (Criminal) 911
7
(2021) 3 SCC 687
8
AIR 2015 Supreme Court 3549
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1795 OF 2007
JUDGMENT:
1. The appellant was convicted for the offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of one year under both counts vide judgment in C.C.No.11 of 2003 dated 17.12.2007 passed by the Principal Special Judge for SPE & ACB Cases, Hyderabad.
2. Briefly, the case of the prosecution is that P.W.1/defacto complainant was working as Assistant Professor of Pediatrics, Andhra Medical College, Visakhapatnam. Earlier in the year 1999, he worked as an employee in the State Government Medical Services and even prior to that, he worked in Army Medical Corps at various places. According to the Government Rules, the Army service of P.W.1 had to be considered for fixing seniority in the A.P. Medical Services along with financial benefits. During May, 1999 P.W.1 applied for inclusion of his Army Service seniority in the State Government Services in the office of the Directorate of Health. 4 The file was not processed. P.W.1 went to the Director, Medical Education on 26.11.1999 and on verification, he came to know that the appellant was dealing with Section E-11 where application was pending. When P.W.1 met the appellant, it was informed that there were some issues in the Tribunal relating to seniority. Since the appellant stated that Army Service Certificate was not available in the record, P.W.1 provided a copy of it. Then, the appellant demanded Rs.5,000/- to process the application of P.W.1. P.W.1 gave an amount of Rs.100/- or Rs.300/-However, having received the said amount, the appellant asked P.W.1 to come on the next day along with Rs.5,000/- bribe.
3. P.W.1 then went to the ACB office on 27.11.1999 and lodged a written complaint Ex.P1. The DSP/P.W.6 received the complaint at 10.30 a.m and registered it at 11.30 a.m. On the same day, trap was arranged at 12.30 p.m. P.W.6 sent for two independent mediators, who are P.W.2 and another. In the presence of P.Ws.1, 2, 6 and other trap members, the formalities before proceeding to trap were completed in the office of ACB. Pre-trap proceedings are Ex.P2. The trap party left the office of the ACB at 1.30 p.m and 5 went near the office of Director, Medical Education, Koti, Hyderabad. Both P.W.1/complainant and the independent mediator P.W.2 went into the office of the appellant. P.W.1 met the appellant and both P.W.1 and appellant came out and went towards canteen. P.W.2 stayed at a distance. The trap party members saw P.W.1 handing over currency notes to the appellant and having received the said amount, the appellant placed it in his pocket. P.W.2 having witnessed something being handed over by P.W.1 to appellant, relayed signal to the trap party indicating acceptance of bribe by the appellant. The DSP/P.W.6 and other trap party members went near the appellant and questioned about the bribe. Sodium carbonate solution test was conducted on both the hands of the appellant, which turned positive. Since several persons gathered at the scene, trap party shifted to office room of the appellant and proceedings continued. The statements of P.W.1 and appellant were recorded and the relevant documents were also seized. After conclusion of post-trap proceedings, same was drafted, which is Ex.P3. The investigation was then handed over by P.W.6 to P.W.7, who recorded the statements of P.Ws.1, 4 and others. Thereafter, charge 6 sheet was filed, after receiving sanction order from the competent authority to prosecute the appellant.
4. The defence of the appellant is that the appellant was not deciding authority and not competent to decide or fix seniority of P.W.1 nor can he recommend regarding the acceptance of seniority by considering his service in the defence service. The said fact that the appellant has no power to fix seniority is also known to PW.1, as such, the question of demanding bribe by the appellant does not arise. P.W.2, who is the independent witness to the proceedings was declared hostile and did not support the prosecution version regarding demand and acceptance of bribe by the appellant. The evidence of D.W.1 shows that when P.W.1 and the appellant were in the canteen area, P.W.1 thrust the amount in the pocket of the appellant, when the appellant refused to take the said amount.
5. Learned Special Judge placing reliance on the fact that when the application was made in the office, the appellant should have returned the application to P.W.1 and should not have asked for P.W.1 to furnish Army Service certificate. The appellant should have directed P.W.1 to approach the concerned authorities and inform 7 P.W.1 that office of Director, Medical Education could not help him. However, the appellant made P.W.1 believe that the office of Director, Medical Education was having authority and accordingly, demanded bribe. Learned Special Judge also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Chaturdas Bhagwandas Patel v. The State of Gujarat 1, wherein it was held that it is not necessary in a case where a public servant was in a position to extract illegal gratification, for the Court to consider whether the public servant was capable of doing such favour. Similar view was also taken in Girja Prasad (dead) by Lrs v. State of M.P 2.
6. Learned counsel appearing for the appellant argued that the defence taken in the lower Court by the appellant was probable and even to the knowledge of P.W.1, the appellant had no authority to consider or process the application for the consideration of seniority of P.W.1. He relied on the following judgments: (i) Soundarajan v. State rep. by the Inspector of Police Vigilance Anticorruption 1 AIR 1976 SC 1497 2 (2007) 3 SCC (Cri) 475 8 Dingidul 3, (ii) A.Subair v. State of Kerala 4, (iii) B.Jayaraj v. State of A.P 5 and (iv) State of Kerala and another v. C.P.Rao 6.
7. Having gone through the record, the admissions of witnesses would be relevant.
P.W.1 admitted in his evidence as follows:
"As per the State Service Regulation as on the date of my complaint and also the trap, the Director, Medical Education was not competent to fix the seniority."
"It is true that AO stated to me that case is pending in APAT, therefore my seniority cannot be fixed. It is true that AO informed that Director of Medical and Health was competent to recommend for fixing my seniority to the Government and that the Government in turn issues orders."
8. P.W.4, Director of Medical Education deposed as follows:
"After the trap against AO I fixed the seniority on 5.12.99 vide Ex.D1 Government of AP cancelled the said fixations orders made by me. Fixing of seniority is administrative decision. Only in case of favourable rule provisions such application will be processed. To my knowledge no complaints were received against AO much less corruption. It is true that AO was sincere and hardworking employee."
9. P.W.5, Section Officer, Department of Health, Medical and Family Welfare deposed in his evidence as follows: 3
Criminal Appeal No.1592 of 2022 dated 17.04.2023 4 2009 (6) SCC 587 5 2014 (13) SCC 55 6 AIR 2012 SC (Criminal) 911 9 "Director of Medical and Health was the appointing authority of the P.W.1 and he alone is competent to fix the seniority of PW1."
10. P.W.8, Deputy Director of Medical Education, deposed in his evidence as follows:
"Without finalizing the seniority list as per Ex.D3 there was no possibility to AO to put up note with regard to PW1's seniority to higher officials."
11. In Ex.P4(b), there is one letter appended which is addressed by P.W.1 to the Principal Secretary to Government, Health, Medical and Family Welfare, Andhra Pradesh, Hyderabad requesting to consider the Military Service for the purpose of seniority and other benefits. In the said letter, he also stated that the matter was pending with the Government for long period. The said letter is dated 19.11.1999. The said letter which was filed by the prosecution and written by P.W.1 would go to show that P.W.1 had knowledge about the department of Department of Health, Medical and Family Welfare was the competent authority to consider his Military Service for the purpose of seniority. Ex.P4(b) is the letter addressed by the Principal, Andhra Medical College, Visakhapatnam to the Director of Medical Education, Andhra Pradesh forwarding representation of P.W.1.
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12. When P.W.1 was aware that it is for the Medical, Health and Family Welfare Department and not the Director of Medical Education, which was competent to consider his seniority in the Military Service, the question of P.W.1 approaching the office of Director of Medical Education appears to be doubtful. In fact the letters addressed in Exs.P4(a) and P4(b) requesting the Principal Secretary to Government, Ministry of Health, Medical & Family Welfare, Government of Andhra Pradesh were forwarded by the Principal of Andhra Medical College, Visakhapatnam on 29.04.99 itself, as seen from the endorsement on Ex.P4(a).
13. In the said back ground, the manner in which the complaint was filed, trap was arranged is also suspicious. The alleged demand of bribe was on 26.11.1999. When the representations made by P.W.1 to the Ministry of Health, Medical & Family Welfare ere already forwarded on 29.04.1999 under Ex.P4(a) and much before trap on 19.11.1999 under Ex.P4(b), there arises any amount of doubt regarding the version of P.W.1 in his complaint that the appellant demanded Rs.5,000/- for processing and putting up favourable note.
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14. The complaint was filed at 10.30 a.m on 27.11.1999. At 11.30 a.m within one hour, the crime was registered. Apparently, the DSP or any other ACB officer had not conducted any enquiry into the correctness or otherwise of the complaint. It is the bounden duty of the DSP, ACB to enquire into the correctness or otherwise of the complaint. The trap party gathered in the office at 12.30 pm i.e., within one hour of registering the complaint. Admittedly, no record was produced before the DSP along with the complaint by P.W.1. Basing on the averments made in the complaint within two hours, the trap was arranged and the appellant was caught.
15. P.W.2 who was the independent mediator to the proceedings stated that he was not a direct witness to the demand by the appellant. In fact, he has seen from a distance that something was passed on to the appellant and he relayed signal. D.W.1 was the Senior Assistant and D.W.2 was the Attender in E-11 Section of Director of Medical Education. Both D.Ws.1 and 2 deposed regarding P.W.1 forcibly thrusting the amount into the pocket of the appellant.
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16. The version of demand of bribe as stated by P.W.1 cannot be believed in the back ground of P.W.1 having knowledge that the appellant has nothing to do with either recommending the seniority or forwarding any note to the Department of Health, Medical & Family Welfare, which the appellant was working in the department of the office of Director of Medical Education. Prosecution has failed to prove demand aspect and the undue haste shown by the DSP in trapping the appellant without there being any preliminary enquiry into the complaint or the DSP having any kind of documents to substantiate the allegations in the complaint throws any amount of doubt.
17.In N.Vijaykumar v.State of Tamil Nadu 7, the Hon'ble Supreme Court held mere recovery of tainted money, divorced from the circumstances under which such money is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In P.Satyanarayana Murthy v. District Inspector of Police 8 , the Hon'ble Supreme Court held that mere recovery or acceptance of the amount dehors the proof of demand, would not be 7 (2021) 3 SCC 687 8 AIR 2015 Supreme Court 3549 13 sufficient to convict an accused under Sections 7 and 13 (1)(d) of the Prevention of Corruption Act.
18. In the result, the judgment of the trial Court in CC No.11 of 2003 dated 17.12.2007 is hereby set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand discharged.
19. Accordingly, Criminal Appeal is allowed. Consequently, miscellaneous applications, if any, shall stand closed.
__________________ K.SURENDER, J Date: 13.11.2024 kvs