Telangana High Court
P.Baleshwaraiah, vs The State Of A.P., Rep By Pp., And ... on 13 November, 2024
1
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1617 OF 2008
JUDGMENT:
1. The appellant/accused was convicted under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and sentenced to undergo rigorous imprisonment for a period of one year under both counts vide judgment in C.C.No.4 of 2005, dated 11.12.2008 passed by the Additional Special Judge for SPE & ACB Cases, Hyderabad. Aggrieved by the same, present appeal is filed.
2. Briefly, the case of the prosecution is that P.W.1 is the scribe of complainant and relative of Rathan Mairam-defacto complainant (hereinafter referred to as 'deceased'). He was not examined since he died prior to commencement of trial. According to P.W.1, the appellant was working as Panchayat Secretary of Kodangal Grampanchayat. The deceased was working as scavenger in the said Grampanchayat. On 07.04.2003, deceased informed P.W.1 that the appellant was asking him to do Kamati work and when he refused, the appellant demanded Rs.15,000/- as bribe and threatened that if he is not going to pay Rs.15,000/-, three months salary which 2 was due to the deceased would not be paid. The deceased further informed that the appellant threatened that he would see to that the deceased would be suspended if bribe is not paid. Further, when the deceased requested the appellant, the appellant demanded that at least Rs.4,000/- should be paid and remaining amount would be collected from the salary which was due to be paid to the deceased. Since the deceased was not inclined to pay bribe, he took P.W.1 to the ACB office and Ex.P1 complaint which was in hand writing of P.W.1 was filed. Ex.P1 was drafted to the dictation of the deceased. The deceased went to the office of the DSP, ACB and gave complaint and informed that P.W.1 that he has to accompany deceased on 08.04.2003 to the DSP office, on which date the trap would be arranged. The trap party gathered in the office of the DSP on 08.04.2003. The DSP explained to the complainant/deceased, P.W.1 and others the manner in which the trap would take place and also asked the deceased not to handover the amount unless demanded by appellant. Having concluded pre-trap proceedings, Ex.P3 was drafted. The trap party went near to the office of the appellant. The deceased and P.W.1 went into the office of the appellant. P.W.1 accompanied the deceased and on the demand of the appellant, Rs.4,000/- 3 was handed over. The appellant took the amount, kept in his pant pocket and informed that he would not initiate any action against the deceased. P.W.1 then came out and signaled to the trap party indicating demand and acceptance of bribe by the appellant. P.W.8/DSP and other trap party members entered into the hall. Sodium carbonate solutions were prepared and the appellant was asked to rinse his fingers in the solutions. The solution of right hand turned pink in colour and the bribe amount was handed from his pant pocket. The right side pant pocket of the appellant was also subjected to test. Thereafter, the version of the appellant and the deceased was recorded in the post-trap proceedings. After conclusion of the post-trap proceedings, investigation was handed over by DSP/P.W.8 to Inspector/P.W.9. P.W.9 concluded investigation and filed charge sheet.
3. The defence of the appellant is that his son got an admission in Engineering Course and he requested the deceased for payment of loan of Rs.20,000/- to enable him to pay college fees for his son. The deceased had landed properties as well as two Tractors and he was giving loans to various persons which is 4 evident from P.W.1's statement namely Balrajsingh, who is the nephew of the deceased.
4. Learned Special Judge, having examined the evidence placed on record by both the prosecution and the appellant, found the appellant guilty and convicted him accordingly.
5. Learned counsel appearing for the appellant submits that there must be official work to be complied in favour of the deceased. The deceased was working as Scavenger and the post of the Scavenger was abolished in that place and the deceased was asked to work as Kamati, which was refused by the deceased. He argued that according to procedure in Gram Panchayat, the salaries would be paid for every three months which is evident from the chief examination of P.W.3, who was Junior Assistant, Gram Panchayat, Maqtal. In his cross- examination, he deposed as follows:
"The disbursement of the salaries to the staff will be made once in 3 months. For every 3 months I prepared the pay bill vouchers for drawing of the salaries by way of cheque. Before 08-04-2003 the pay bill vouchers for the months of January, February, March were prepared including the cheques but they were not sent since LOC was not received."
He further submitted that the bill was sent on 08.04.2003, but the complaint was made by the deceased on 06.04.2003 itself 5 and trap was laid on 08.04.2003. P.W.4/Bill Collector, Gram Panchayat, Nagarkurnool, deposed as follows:
"The Salary bills of the entire staff will be prepared at one time and the salaries will also be disbursed at one time. The salary bills for the months of January, February, March, 2003 were prepared at one time, due to non issuance of LOC the pay bills could not be submitted."
6. Learned counsel further argued that there must be demand by the appellant and the said demand must corroborate by another independent witness. In the present case, there is no witness stating that the appellant demanded bribe amount and deceased accepted. He submitted that even according to the evidence of P.W.1, who accompanied complainant for drafting and submission of complaint, has not spoken about demand of bribe by the appellant. Entire evidence led by the ACB, no one has spoken about demand of bribe by the appellant from the complainant. The statement of deceased has not stated that any another person is present when bribe was demanded. In the absence of such corroborative evidence, convicting the appellant is illegal. In support of his contention, he relied on the judgments reported in the case of State through Central Bureau of Investigation v. Dr.Anup Kumar Srivastava 1 and Ram Prakash Arora v. The State of Punjab 2.
1 AIR 2017 Supreme Court 3698 2 AIR 1973 Supreme Court 498 6
7. On the other hand, learned Special Public Prosecutor would submit that the amount was seized at the instance of the appellant from his pant pocket. The version of loan cannot be believed since the deceased was working as scavenger and the theory of loan was afterthought when the trap party entered and confronted the appellant.
8. The appellant was working from 16.11.2002 onwards in the position of Panchayat Secretary. There was never any demand, even according to P.W.1 till the date of complaint. According to P.W.3, the disbursement of salary to the staff will be made every three months and for every three months, bills will be prepared. As on the date of trap i.e., 08.04.2003, the bill voucher for the months of January, February and March were prepared by P.W.3. However, the Letter of Credit was not received. It is not the case of the prosecution that having received the amount, the appellant had deliberately stopped the disbursal of the salary until bribe was paid. Even as on the date of lodging complaint, LOC was not received, as such, the question of disbursing the salary does not arise.
9. The appellant at the earliest point of time, when he was examined in the post-trap proceedings by P.W.8, informed that 7 the deceased had given the amount he asked as loan from P.W.1 for Rs.20,000/- to meet the expenditure of his son's education, who was studying MCA at Moinabad. When both of them came to the office and deceased gave amount, he accepted as part of the loan amount that was asked. P.W.1 in his cross-examination denied that the deceased and P.W.1 were money lenders and money was lent to people. In support of claim of taking loan, the appellant examined D.W.1, who is the Sarpanch of the Gram Panchayat. According to him, on the date of trap, while he was in the Gram Panchayat Office, the deceased went and gave amount stating that it was the amount that was asked as loan for the appellant's children. In fact, amount was taken and appellant also gave receipt to the deceased. 10 minutes thereafter, the ACB officials entered into the room and conducted proceedings. D.W.2 stated that the deceased has two sons and they were also doing scavenger work. All the family members have seven or eight acres in the village and he leased out two tractors. Deceased used to lend amount and D.W.2 borrowed amount from the deceased. D.W.3, who is resident of the Kodangal Village stated that the deceased was a money lender and also lent amount. He owned tractors, 10 to 12 acres of land and all the members of the family 8 of the deceased were employees. According to D.W.3, the deceased bore grudge against appellant since he asked to do duties of Kamati.
10. As already discussed, the salaries would be disbursed after every three months once the amount is received from the concerned. Admittedly, the amounts for the salaries of January, February and March were not received. In the said circumstances, the question of demanding bribe for paying salary does not arise. As already discussed, it is not the case of the prosecution that the appellant demanded the amount by keeping the salary pending, though received and stopped disbursement.
11. The deceased, who is the defacto complainant died and he is the only witness to the alleged demand. The circumstance proved otherwise. The aspect of demand as projected by the prosecution cannot be believed.
12. The appellant at the earliest point of time claimed that the amount of Rs.4,000/- was towards loan which he had asked. D.Ws.1 to 3 has specifically spoken about the deceased and P.W.1 having several acres of land and were also into money lending business. The deceased was also giving tractors on hire. 9 The earliest version of loan as stated by the appellant is corroborated by the testimony of D.Ws.1 to 3. Only because D.Ws.1 to 3 are defence witnesses, it does not mean that their evidence has to be suspected or cannot be relied on. The Court has to give equal weightage to both the defence and prosecution witnesses.
13. The burden shifts onto the appellant since he has accepted receiving amount, however, as loan. By producing the evidence of D.Ws.1 to 3, the appellant has discharged his burden by preponderance of probability.
14. The Hon'ble Supreme Court in the case of Parminder Kaur alias P.P.Kaur alias Soni v. State of Punjab 3, wherein it is held as follows:
"IV. Failure to refute Section 313 CrPC statement
22. Under the Code of Criminal Procedure, 1973, after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial court to fairly apply its mind and consider the defence, could endanger the conviction itself [ Reena Hazarika v. State of Assam, (2019) 13 SCC 289, para 19 : (2019) 4 SCC (Cri) 546] . Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities [M. Abbas v. State of Kerala, (2001) 10 SCC 103, para 10 : 2002 SCC (Cri) 1270] . Thus, once a plausible 3 (2020) 8 Supreme Court Cases 811 10 version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea."
15. The Hon'ble Supreme Court in the case of C.M.Girish Babu v. CBI, Cochin, High Court of Kerala 4 found that explanation that was given regarding the alleged gratification in the case was probable, the same can be considered by Court. The Hon'ble Supreme Court considered the said explanation and acquitted the accused therein.
16. In view of the above discussion, the appellant succeeds and the judgment of trial Court in C.C.No.4 of 2005, dated 11.12.2008 is hereby set aside. Since the appellant is on bail, his bail bonds stand discharged.
17. Criminal Appeal is allowed.
__________________ K.SURENDER, J Date: 13.11.2024 kvs 4 2009(3) SCALE 107