Sri. Paleti Venkateswarlu vs The State Of A.P., Rep. By Spl.P.P. ...
2021 Latest Caselaw 373 AP

     THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR


              Criminal Appeal No.1167 of 2006

JUDGMENT :

1. Challenging the conviction and sentence imposed in

C.C.No.12 of 2002, the sole accused filed the present

Criminal Appeal. The accused was tried for the offences

punishable under Sections 7 and 13(1)(d) read with Section

13(2) of Prevention of Corruption Act. By its judgment dated

19.8.2006, the learned Sessions Judge convicted the accused

officer under both the counts and sentenced him to suffer

Rigorous Imprisonment for a period of one year and to pay a

fine of Rs.5,000/-, in default, to suffer Simple Imprisonment

for 3 months under each count. The substantive sentences of

imprisonment were directed to run concurrently.

2. The substance of the charge against the against the

accused officer is that on 05.02.2001 at 10.30 AM the

accused is said to have demanded an amount of Rs.2,500/-

as bribe from one Avutu Brahmanandareddy of Tumuluru

Village for issuance of a certificate of license in his favour and

pursuant there to, accepted the same on 20.02.2001. The

said amount was recovered from a diary, kept on the table of

the accused officer.

3. The facts in issue are as under :

There was one fertilizer shop in the name of the father of

P.W.1 at Tumuluru village. P.W.1 intended to obtain fertilizer

license in his name and accordingly submitted an application

to Agricultural Officer of Kollipara Mandal on 27.12.2000.

Along with the application, he enclosed a challan for

Rs.1,250/-, xerox copies of rent agreement and Form-O.

Ex.P1 is the said application. Ex.P2 is the challan and Ex.P3

is the proforma of Form-A application. While Ex.P4 is the

Form-O submitted by the neighbouring businessmen, Ex.P5

is the xerox copy of registered sale deeds. The Agricultural

Officer at Kollipara Mandal is said to have recommended the

application of P.W.1 and forwarded the same to the accused

officer at Tenali for issuance of license to carry on fertilizer

business. On 29.01.2001, the accused officer returned the

application on the ground that certain required papers were

not enclosed. P.W.1 claims to have complied with the

objections raised by the accused officer and re-submitted his

application on the same day, i.e., on 29.01.2001. Ex.P6 is

the xerox copy of the said application. A week thereafter,

P.W.1 met the Agricultural Officer, Kollipara and enquired

about his recommendation and for issuance of fertilizer

license, to which he replied that he did not receive any

recommendation from the accused officer. Two days

thereafter, he again met the Agricultural Officer at Kollipara,

but to no avail. Thereafter, he went to the office of the

accused officer, Tenali on 10.02.2001, but could not meet

him as he was on tour. Subsequently thereafter, he met the

accused officer, who demanded bribe of Rs.2,500/- for

issuance of fertilizer licence. Though P.W.1 expressed his

inability to pay the bribe amount, the accused officer is said

to have reiterated his demand. As P.W.1 was reluctant to pay

the bribe amount, he came down to Vijayawada and

presented a report-Ex.P7, which is in his handwriting, to

P.W.12, the Dy.S.P., A.C.B. on 19.02.2001. On receipt of the

same, P.W.12 endorsed the same to P.W.13 to cause discrete

enquiries about the accused officer and P.W.1 and to submit

his report. Pursuant thereto, P.W.13 caused discrete enquiry

and submitted a report by the next day morning.

4. After obtaining oral permission from higher authorities

to lay a trap, P.W.12 sent a requisition to C.T.O., Benz Circle,

to spare the services of two officers to act as mediators. He

registered a case under crime No.4 of 2001 under Section 7 of

the Prevention of Corruption Act and submitted the original

F.I.R. to the Court. Ex.P25 is the original F.I.R. On the next

day, i.e., on 20.02.2001, the mediators - P.W.7 and one

V.Narendra Kumar attended the office of P.W.12, where they

were introduced to P.W.1, who came there along with the

proposed bribe amount. The mediators were asked to verify

the contents of F.I.R. and also about the genuineness of the

report given by P.W.1. The mediators went through the said

report and P.W.1 also asserted that the contents of the report

are true and correct. The two mediators put their initials on

the carbon copy of the F.I.R. in token of their verification.

On the request of P.W.12, the bribe amount was produced by

P.W.1, which consists of ten Rs.100/- notes and three

Rs.500/- notes. The numbers on the currency notes were

noted down in a mahazar and thereafter the importance of

phenolphthalein test was explained to the mediators and

P.W.1. A demonstration of the same was also conducted

before the mediators and P.W.1. Thereafter, phenolphthalein

powder was applied to currency notes and the same was put

in the shirt pocket of P.W.1. P.W.1 was instructed to give the

bribe amount to the person on his demand only and in case

he receives the same, to come out of the office and give a

signal by wiping his face with hand kerchief. P.W.12 collected

sodium carbonate powder and also phenolphthalein power in

two separate packets, which are placed on record as M.Os.1

and 2.

5. At about 2.15 PM, the entire trap party proceeded in

one car and jeep to Tenali and reached near the vicinity of the

office of the accused officer at 3.15 PM. The vehicles were

stopped and all of them got down from the respective vehicles.

P.W.1 was instructed to proceed towards the office, reiterating

the earlier instructions in respect of the demand, acceptance

and relay of pre-arranged signal. At about 4.10 PM, they

received a signal from P.W.1 and accordingly, the trap party

members rushed into the office of the accused officer, which

is located in the first floor of the building. They saw one

person sitting in the office of the Assistant Director,

Agriculture. P.W.12 introduced himself to the said person

and ascertained the identity of the said person and found him

to be the accused officer. P.W.12 also introduced trap party

members and vice-versa.

6. On instructions of P.W.12, one Police Constable

prepared sodium carbonate solution in two separate glass

tumblers and when accused officer dipped the fingers of both

hands into the solution, there was no change in colour of the

solution. When questioned about the tainted amount, the

accused officer stated that he has no knowledge about the

bribe amount and his version was reduced into writing by one

of the mediators. Then, P.W.12 called P.W.1 and questioned

him as to what happened in between himself and the accused

officer. His version was reduced into writing by one of the

mediators. P.W.1 stated before the mediators, that when he

offered the bribe amount, accused officer instructed him to

keep the bribe amount in the diary and accordingly, he placed

the amount in the diary. On further enquiry, the accused

officer is said to have opened the diary by himself and showed

the wad of currency notes. The mediators took out the

currency notes, verified the serial numbers of the notes and

found them to be same with those mentioned in the pre-trap

proceedings. An amount of Rs.2,500/- was seized, which is

placed on record as M.O.3. The sodium carbonate solution

test, with the aid of cotton swab, was conducted on the pages

of diary, which came in contact with the tainted amount and

the same turned pink in colour. Ex.P11 is the diary. On a

request made by P.W.12, the accused officer produced the file

relating to the application of P.W.1. Exs.P1 to P6 are relevant

papers relating to the application of P.W.1 which were seized

under Ex.P18. A rough sketch of the scene was prepared,

which is marked as Ex.P19. Ex.P20 is the post-trap

proceedings. The accused was arrested and released on bail.

Further investigation in this case was conducted by P.W.13,

who examined the witnesses, collected the material

documents and later on, filed the charge-sheet, which was

taken on file as C.C. No.12 of 2002 by the Special Judge for

SPE and ACB Cases, at Vijayawada. On appearance of the

accused, copies of the documents, as required under Section

207 Cr.P.C., were furnished and thereafter, charges, as

referred to earlier, came to be framed, read over and

explained to the accused, to which he pleaded not guilty and

claimed to be tried.

7. In support of its case, the prosecution examined P.Ws.1

to 13 and got marked Exs.P1 to P25. After completion of the

prosecution evidence, the accused officer was examined

under Section 313 Cr.P.C. with reference to the incriminating

circumstances appearing against him in the evidence of the

prosecution witnesses, to which he denied. He examined

D.Ws.1 to 3 and got marked Exs.D1 and D2 in support of his

plea and also marked through these witnesses, Exs.X1 to

X13. Out of the thirteen witnesses examined by the

prosecution, P.Ws.3, 4, 5, 9 and 10 did not support the

prosecution case and were treated hostile by the prosecution.

In view of the evidence of P.Ws.1, 7, 12 and 13, which amply

established demand and acceptance of money as bribe, the

trial court convicted the accused. Challenging the same, the

present appeal came to be filed.

8. Sri C.Nageswara Rao, learned Senior Counsel appearing

for the appellant, would submit that there is absolutely no

evidence on record to show that the accused officer has either

demanded or accepted any bribe. He took me through the

evidence of P.W.1 to show that his evidence is inconsistent

with regard to the date of demand. According to him in one

portion of the evidence, P.W.1 deposed about demand being

made by the accused officer around 10.02.2001, while in the

later portion he speaks about the demand being made on

05.02.2001. He further submits that there is enough

evidence on record to show that the accused officer was not in

the office on 05.02.2001. Therefore, his plea prima facie

appears to be, that when the prosecution has failed to prove

the demand, the entire fabric of the prosecution case

collapses and the accused is entitled for acquittal on that

score alone. Even otherwise he would submit that there is no

evidence on record to show that the accused has accepted the

money. The evidence of the mediator and the Investigating

Officer would show that the phenolphthalein test conducted

to fingers of both hands turned negative and the money was

said to have been recovered from a diary. According to the

learned Senior Counsel, diary was there on the table and

P.W.1, who reached the office prior to the arrival of the

accused officer from tour, planted the money in the said

diary. Therefore, according to him, the immediate

explanation given by the accused officer that he did not

accept any bribe requires to be accepted, more so, when the

phenolphthalein test is negative and there is no evidence on

record to show that this diary was brought along with the

accused officer.

9. He further pleads that the prosecution failed to verify

the antecedents of the accused officer and P.W.1 before

registering a crime. Apart from that, he also contends that,

there was no official favour pending with the accused officer

for demanding the bribe amount, which fact is to the

knowledge of P.W.1.

10. On the other hand, Sri S.M.Subhani, learned Standing

Counsel for ACB and Special Public Prosecutor, would

contend that P.W.1, in his evidence, categorically deposed

that due to lapse of time, he could not correctly mention the

date, but, after seeing Ex.P7-report, he categorically stated

the demand was on 05.02.2001 and though no time was

given, the same will not be of any consequence, as the

contents and signature of the report were admitted by P.W.1.

He would further contend that the evidence of P.W.1 also

discloses keeping of the bribe amount in the diary of the

accused officer at his instance. The cross-examination done

does not anywhere demolish his version. Merely because the

attender, who accompanied the accused officer, did not

support the prosecution case with regard to bringing of the

diary along with the accused officer, does not by itself make

the entire case suspicious. In other words, his argument is

that the prosecution has successfully proved the demand and

acceptance of money as bribe. In fact, it is pleaded that the

motive, as suggested by the accused officer, is far from truth,

as the grievance, if any, was against the officer superior to the

accused officer and not against the accused officer.

Therefore, if a false case was to be foisted, it should have been

only against the officer superior to the accused officer, but,

definitely not against the accused officer. Having regard to

the documents, namely, Exs.X1 to X13, coupled with the

evidence of defence witnesses, it only stands to establish that

the accused officer was there in the office on 05.02.2001 and

he came to the office at 4.00 PM on 20.02.2001. Therefore,

the argument that he was not present on the date of demand

cannot be accepted. In view of the above, he would submit

that the findings arrived at by the trial court requires no

interference.

11. The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

officer beyond reasonable doubt for the offences punishable

under Sections 7 and 13 (1)(d) read with Section 13(2) of the

Prevention of Corruption Act.

12. In order to appreciate the rival arguments it would be

necessary to refer to the evidence available on record. It is

well established principle of law that in order to prove

offences punishable under Sections 7 and 13 of the

Prevention of Corruption Act, the prosecution has to prove

demand and acceptance of money and existence of an official

favour for accepting the money.

13. In order to prove the guilt of the accused, as observed

earlier, the prosecution has to prove three main ingredients,

namely, that there was demand by the accused officer,

acceptance of money and whether there was any favour

pending before the accused officer for demanding money.

In so far as the demand is concerned, the prosecution is

mainly relying on the evidence of the P.Ws.1, 7 and 12.

Before going into the said aspect it has to be seen whether

there was a valid sanction for initiation of the prosecution.

Though the learned Senior Counsel would contend that there

was no valid sanction, but, however, a perusal of the evidence

of P.W.6, coupled with Ex.P15, shows that the sanction order

seeking prosecution of the accused officer came to be issued

after considering the material available on record. In other

words, it can be said that there was application of mind by

the authorities prior to issuance of sanction order. It may be

true that the explanation submitted by the accused officer

was not considered, but, still the material on record show a

prima facie case against the accused officer, which made the

authorities to issue the sanction order.

14. The second point that arises for consideration is,

whether the prosecution has proved the guilt of the accused

officer beyond reasonable doubt for the offences punishable

under Sections 7 and 13(1)(d) of the Prevention of Corruption

Act. In order to bring home the guilt of the accused officer for

the offence punishable under Section 7 of the Act, the

prosecution has to prove that the accused officer has

accepted illegal gratification of Rs.2,500/- from P.W.1 for

himself and the same was not a remuneration to which he is

legally entitled to. In order to prove the offence under Section

13 (1)(d) read with Section 13(2) of the Prevention of

Corruption Act, it is to be established that the accused officer

by incorrect or illegal means obtained for himself a valuable

thing or pecuniary advantage so as to come to a conclusion

that he has committed an offence of criminal misconduct as a

public servant.

15. The defence of the accused officer in so far as the

demand is concerned, the accused officer was on camp on the

alleged dates of demand and by the time he came to the

office, P.W.1, who was present in his chamber, kept the

tainted amount in his diary. In order to prove that the money

was kept without his knowledge in the diary, which was on

the table, the accused officer examined D.W.3. D.W.3, who

also claims to have gone to the office on that day, noticed

P.W.1 sitting in front of the table of the accused officer.

According to D.W.3, he claims to have gone to the office of the

accused officer to meet the accused officer in respect of some

license.

(A) Before dealing with the demand and acceptance of

money, it would be appropriate to examine the issue as to

whether there was any motive for P.W.1 to implicate the

accused officer.

According to the accused officer, P.W.1 was under the

impression that the accused officer is responsible for some

problems in the fertilizers shop being run by his father

through P.W.2 and only with the said grouse he gave the

report. As seen from the evidence of P.W.1, father of P.W.1

was running a fertilizer shop under the name and style of

M/s.Sambasive General Stores at Kollipara. The evidence on

record is to the effect that the subordinate of Assistant

Director of Agriculture by name G.Lakshmana Kumar (P.W.2)

visited the shop and found some irregularities. In that

connection, a panchanama vide Ex.X12 was prepared on

12.01.2001 and samples of maize were seized from his shop.

When the said samples were sent to the laboratory, they were

found to be spurious. At that time, P.W.1 presented an

application seeking a license in his name for starting a new

fertilizer shop. The said application, which was presented on

27.12.2000, was returned as it was not having the necessary

documents and that it was not presented through proper

channel. Later on, it was presented through Agricultural

Officer at Kollipara on 29.01.2001, which was forwarded to

the Agricultural Officer on 30.01.2001 under Ex.P10. The

endorsement made on the said application show that the said

application was returned, as the procedure contemplated for

processing the application was not followed. In other words,

it can be said that the first application was presented directly

to the accused officer thinking that he was competent to issue

the license, but the same was returned, whereby the

application was forwarded through Agricultural Officer at

Kollipara. At this stage, it is to be noted that the evidence of

P.W.1 clearly indicate that though the license of the shop at

Kollipara was in the name of the father of P.W.1, but, it was

P.W.1, who was looking after the business. At this stage it is

required to be noted that the samples of maize, which was

seized from the shop of the father of P.W.1, were found to be

substandard on 16.02.2001 and a letter was addressed to the

Agricultural Officer enclosing the original documents.

Therefore, the alleged motive for foisting a false case appears

to be incorrect for the reason that if really there was any

motive for P.W.1 to foist a false case, it should be against

P.W.2, who seized the samples and the record from the shop

of the father of P.W.1 and sent it to the accused officer on

16.02.2001 for further action vide Ex.X13. Therefore, the

motive, as suggested by the accused officer, for foisting a false

case cannot be accepted.

(B) The second issue, which arises for consideration and

which, in my view, to be dealt with before dealing with the

plea of demand and acceptance is, as to whether there was

any favour pending before the accused officer on the date of

demand and trap. The evidence of P.W.1, coupled with the

evidence of the Investigating Officer, show, Ex.P1 application

of P.W.1 was pending in the office of the accused officer, who

is the competent officer to grant fertilizer license. The

Agricultural Officer advised P.W.1 to meet the accused officer

personally as he did not receive the sanction of license from

the office of the accused officer. P.W.1, in his evidence,

categorically deposed about he going to the office of the

accused officer couple of times and also meeting the accused

not only on 05.02.2001, but also on 17.02.2001 and on that

the accused officer demanding bribe amount. If really there

was nothing in the hands of the accused officer to do a

favour, there was no need for the Agricultural Officer at

Kollipara to advice P.W.1 to meet the accused officer or

forward Ex.P1 application along with the documents to the

accused officer. Further, immediately after the trap it was the

accused officer who produced Exs.P1 to P6, the documents

relating to the application of P.W.1 from his custody. These

facts not only get corroboration from the evidence of P.Ws.1, 7

and 12, but also the report-Ex.P7 lodged by P.W.1 and also

the 164 Cr.P.C. statement of P.W.1, which is marked as

Ex.P8. Therefore, the argument of the learned Senior Counsel

that there was no official favour pending with the accused

officer as on the date of demand and trap cannot be accepted.

(C) The next question would be whether there was any

demand on the dates as alleged in the report. According to

the prosecution, the accused officer is said to have demanded

payment of bribe on 05.02.2001 and again on 17.02.2001.

The plea of the accused officer is that on both these dates he

was not in the office and as such the evidence of P.W.1, even

assuming it to be consistent, is false. In other words, the plea

of the accused officer is that he was on tour on 05.02.2001 in

his office jeep; attended grama sabha in Chakrayapalem,

Chemudupadu, Duggirala, Tumuluru to select beneficiaries of

Anthyodaya scheme. He also claims to have participated in

the meeting at M.P.D.Os. office at Kollipara. While

prosecution relied upon the evidence of P.Ws.1, 7 and 12 &

Exs.P1 to 7, 8,11,17 and 20 to prove their case, the defence

relied upon the evidence of D.W.1 and Exs.X3,6,8 and

Ex.P11.

P.W.1, in his evidence stated that as there was no

proper response from the Agricultural officer at Kollipara

about his application, which was forwarded to the accused

officer, he went to Tenali to meet the accused officer

personally. According to him, around 10.02.2001 he went to

the office of the accused officer, but was not able to meet him

as he was on tour. Two days thereafter, he again went to the

office of the accused officer, met him personally and enquired

about his pending application for issuance of fertilizer license.

On that, the accused officer is said to have demanded bribe of

Rs.2,500/- for issuance of fertilizer license. Though P.W.1

expressed his inability to pay the amount, the accused officer

demanded the money and thereafter, lodged a report on

19.02.2001.

From this portion of evidence of P.W.1 it appears that

the demands were on 10.02.2001 and 12.02.2001. But,

however, the subsequent portion of the evidence goes to show

that due to lapse of time he could not remember the dates of

demand as stated by him in chief and thereafter on seeing the

contents of Ex.P7, witness categorically states that the

demand was on 05.02.2001 and 17.02.2001. It is also to be

noted here, this variation in dates, in my view, may not go to

the root of the matter, for the reason that P.W.1 in his cross-

examination by the Public Prosecutor admits that the

contents of Ex.P7 report are true and correct. It will be useful

to extract the same, which is as under :

"It is true that the mediators have gone through the contents of the copy of Ex.P7 and asked me about the genuineness thereof and I asserted before them that the contents of my report are true and correct."

Further, in the cross-examination of the accused officer

he categorically admits that he met the accused officer on

05.02.2001 and that he was alone when he met him. It will

be useful to extract the answers elicited in the cross-

examination of P.W.1 by the accused officer, which are as

under :

"On 5.2.2001 I met the A.O. in his office. I alone met A.O. on that day. When I met A.O. he was alone."

It is no doubt true that realizing the mistake done in

asking such question, another question was posed about his

meeting the accused officer on 05.02.2001, but the same was

denied by him. Further, in the next sentence he again admits

to have met the accused officer on 17.2.2001 when he was in

office room. The relevant portion in the evidence of P.W.1 is

as under :

"On 17.2.2001 I alone met the A.O. when he was in office room."

Things would have been different had such answers are

not elicited from the evidence of P.W.1. But, when the

accused officer himself has elicited from the evidence of P.W.1

about P.W.1 meeting the accused officer on 05.02.2001 and

17.02.2001, the plea, which is now taken, that the evidence of

P.W.1 in chief is false cannot be accepted. Apart from that,

as observed by me earlier, P.W.1 is not disputing the contents

of Ex.P7 report wherein he categorically stated about he

meeting the accused officer on 05.02.2001 at 10.30 AM and

on 17.02.2001 at his office, wherein on both the dates

accused officer is said to have demanded P.W.1 to pay a bribe

of Rs.2,500/-. Apart from that, Ex.P8, 164 Cr.P.C. Statement

of P.W.1, though not a substantive piece of evidence, but can

be used to test the maker, it is evident that in the said

statement also he deposed about meeting the accused officer

on 05.02.2001 and 17.02.2001. Therefore, the argument of

the learned senior counsel that the accused officer never met

P.W.1 on those two days may not be correct.

Further, as observed by me earlier, P.W.1 met the

accused officer on those two days and on both the days he

demanded bribe of Rs.2,500/- for doing an official favour. At

this stage it would be necessary to discuss the material relied

upon by the accused, namely, Exs.X3, 6, 7 and Ex.P11,

coupled with the evidence of P.W.1 along with Exs.X4 and X5,

to show that he was not in the office on 05.02.2001 and

17.02.2001 and that P.W.1 has not met the accused officer on

those two days. Ex.X1 is the Akshara Deepthi Minutes Book

which refers to tours from 02.10.2000 to 29.11.2003 and the

same was maintained in the office of M.P.D.O., Kollipara.

Ex.X3 is dated 5.2.2001 which shows accused officer holding

a meeting as a Nodal Officer from 3.00 PM on 05.02.2001

(Ex.X1 is the relevant page). Ex.X6 is the log book of the jeep

bearing No.AAG 9114 from 01.01.1998 to 26.12.2001, while

Ex.X8 is Tour Diary of the accused officer from 01.01.2000 to

28.02.2001. Ex.X6 shows that the accused officer reached

Tenali at 8.30 AM and returned at 10.30 PM on 05.02.2001.

Relying on these exhibits, learned Senior Counsel would

contend that P.W.1 could not have met the accused officer on

that day.

At a first blush the argument of the learned Senior

Counsel appeared to be quite convincing, but on a close

perusal of the exhibits proved to be otherwise. Ex.X8, which

is the tour diary of the accused officer, would show that the

entries in the said diary were made by the accused officer

himself. As per the said entries, he left for camp to some

villages on 05.02.2001 and came back. It also disclose that

on the said day he traveled about 72 K.Ms. in his jeep.

Further, a reading of Ex.X8 also shows that the accused

officer, who made the entries, is in the habit of noting down

the timings of his journey. Ex.X6 is the Log Book of the jeep

which shows that vehicle traveled 48 K.Ms. from 8.10 AM to

10.30 PM on 05.02.2001. However, there are some strikings

and corrections with regard to the distance traveled. Prima

facie, the counsel relied upon these two documents, more

particularly Exs.X8 and X6 to show that on 05.02.2011 the

accused officer was on tour from 8.10 AM to 10.30 PM,

meaning thereby that P.W.1 could not have met him on that

day.

But, at this stage, it will be useful to refer to the entries

made by the accused officer himself in Ex.P11-diary, which

was seized at the time of trap and found on the table of the

accused officer. While Ex.P11 was said to have been seized at

the time of trap from the table of the accused officer, Ex.P18

was summoned from the office of the accused officer during

the course of trial. It is to be noted that the contents in

Ex.P11 are not disputed by the accused officer. The cross-

examination made does not anywhere suggest disputing

either seizure of the documents or the entries made therein. A

perusal of the contents of Ex.P11 show that the accused

officer traveled a distance of 72 K.Ms. on that day and that he

returned back to the office. In order to test the veracity of the

contents of Ex.X3 and X4 it will be appropriate to refer to the

evidence of D.W.1, who was working as M.P.D.O., Kollipara.

His evidence goes to show that he also attended the Akshara

Deepthi along with the accused officer, but his evidence is

silent as to when the said meeting started and when it was

closed. His evidence goes to show that on 05.02.2001

Akshara Deepthi meeting was held at 3.00 PM to which the

Nodal Officer- accused officer attended the meeting and that

he also attended the said meeting. Ex.X3 is the relevant

entry at page No.37 of Ex.X1 book showing the attendance of

meeting by D.W.1 and the accused officer. Further, page

No.38 of Ex.X1 shows that on 17.2.2001, Akshara Deepthi

meeting was held in their office for which accused officer has

attended and the relevant entry is marked as Ex.X4. It also

states about the accused officer attending the Janmabhoomi

in their office at 10.00 AM. But, however, in the cross-

examination he admits that he cannot say whether any notice

was issued to participate in the Akshara Deepthi meeting said

to have been held on 05.02.2001. He further admits Ex.X3

does not disclose the closing time of the meeting. He also

admits that no superior officer will check the register in

respect of conducting the meetings and that it will be in his

custody. According to him, one Mandal Literacy Officer is

said to have scribed Ex.X3 and X4 headings and the names of

the participants. He also admits that the time to be held was

also not noted in Ex.X4. He categorically states the time is

separately noted with different ink and pen in Ex.P5 and he

cannot say who scribed it. However, he denies the suggestion

that these documents were not maintained by their office as

per the instructions and in usual course. He also denies the

suggestion that he has not attended the meeting held on

05.02.2001 and 17.02.2001.

From the evidence of D.W.1 it is very clear that this

meeting was held in their office at 3.00 PM to which accused

officer attended. That being the position, the evidence of

P.W.1, coupled with Ex.P7, P8, which is to the effect that he

met the accused officer in the morning at 10.30 AM, cannot

be brushed aside. Further, the evidence of D.W.1 and

Exs.X1, X3 and X4 do not indicate any time with regard to

the meeting that was said to have been held on 17.02.2001.

On the other hand, D.W.1 pleads ignorance about the entries

made. Therefore, the finding of the learned Sessions Judge

that the entries noted in Ex.P11 have to be treated as genuine

compared to the entries in exhibits marked as Ex.X1 to X8

cannot be found fault with. Viewed from any angle, it is very

much clear that on both the occasions, P.W.1 met the

accused officer in his office and on both the dates the accused

officer demanded money from him.

(D) Coming to the acceptance of money on 20.02.2001, the

evidence of P.W.7, the mediator, goes to show that on

20.02.2001 all of them assembled in the office of P.W.12 at

12.00 noon and after complying with all pre-trap formalities,

proceeded to the office of the accused officer at Tenali. It is in

the evidence of P.W.1 that when he went into the office of the

accused officer, he did not find him, but his enquiries

revealed that he left for somewhere. He waited there for

about half an hour and thereafter the accused officer came to

his office. After the arrival of the accused officer, he went into

the room of the accused officer, met him and enquired about

his license. The accused officer is said to have enquired with

P.W.1 as to whether he brought the bribe amount, to which

he gave a positive reply. So saying he picked out the amount

from his pocket and when he was about to hand over the

same, the accused officer asked him to keep the amount in

diary which was found in front of his table and accordingly

P.W.1 kept the tainted amount. The accused officer asked

P.W.1 to call one Sastry and accordingly he informed the said

Sastry and thereafter gave a pre-arranged signal to the trap

party members, who, on receipt of the same, rushed into the

office. When enquired as to where he kept the amount, he

told the Dy.S.P. that the amount was kept in the diary and

showed the same to him. The diary (Ex.P11) is an agricultural

department diary. P.W.1 was asked to wait outside and later

on he was called again, for recording his statement. When

P.W.1 deposed about the statement recorded by the trap

party members, he was declared hostile and he was subjected

to cross-examination by the learned Public Prosecutor and

also by the accused officer.

From the evidence in chief of P.W.1 it categorically

stands established that on the date of trap, he, along with

other trap party members, proceeded to the office of the

accused officer, where he waited outside for sometime and

after the arrival of the accused officer he entered the office

room of the accused officer, where on demand and on the

instructions of the accused officer, the money was kept in the

diary, which was on the table. Though the phenolphthalein

test conducted on the hands of the accused officer turned

negative, but the place where the money was kept in the diary

turned positive to phenolphthalein test.

The main argument of the learned senior counsel Sri

C.Nageswara Rao was to the effect that the diary was there on

the table prior to arrival of the accused officer and the

accused officer has kept the money stealthily in the diary and

foisted a false case.

The question would be now whether the diary was there

on the table prior to the arrival of the accused officer or

whether the said diary was brought along with the accused

officer by his attenders. The same was tried to prove through

the evidence of D.W.3. It was suggested to all the witnesses

that D.W.3 was present in the office and that too in the

chambers of the accused officer along with P.W.1 prior to the

arrival of the accused officer, but the same was denied by the

material witnesses. However, D.W.3, in his evidence, deposed

that on the date of trap i.e., on 20.02.2001 he went to the

office of the Assistant Director of Agriculture to enquire into

the subsidy of the power sprayer. At that time, the accused

officer was not present in the office and he was told by the

attender that he was on camp and asked him to wait in the

room of the accused officer. By that time, P.W.1 was also

sitting in the room of the accused officer. According to him,

P.W.1 was handling one diary, which contains picture of

sunflower and he also noticed keeping of the same on the

table of the accused officer. He was enquired by P.W.1 about

the purpose of his visit. According to him, at about 4.00 PM,

the accused officer and one Ravi Kumar, Attender, entered in

his room. P.W.3 kept the file brought by him along with the

accused officer on the table of the accused officer. Accused

officer enquired P.W.1 about the purpose of his visit. At that

point of time, about five or six persons entered the office. At

this stage, it is to be noted that the evidence of D.W.3 runs

contra to the defence taken by the accused officer. The

evidence of D.W.3 show that when the accused officer asked

P.W.1 the purpose of his visit and on being informed that he

came there for license, the accused officer is said to have

informed him that he does not have knowledge about his

license and asked him to meet the Senior Assistant and then

P.W.1 left the office of the accused officer. That being the

position, the version of D.W.3 has to be viewed with

suspicion. It is no body's case nor it is the case of the

accused officer that P.W.1 left the office on being told by the

accused officer that he is not aware about his license. Apart

from that, the evidence of D.W.3 is as bald as anything.

While the evidence in chief shows that he came there to

enquire about the subsidies of power sprayer, there was no

necessity for him to wait till the arrival of the Assistant

Director of Agriculture to enquire about the subsidy, he could

have, as well, enquired from the other members of the office

as to whether there is any subsidy of the power sprayer.

Apart from that it is very doubtful to believe that the two

strangers would be allowed to sit in the chambers of the

accused officer even before the arrival of the accused officer.

As stated earlier, the plea of the appellant is that money

was kept in the diary, which was already on the table, but,

the evidence of D.W.3, which was sought to be relied upon to

prove the same, cannot be accepted. There is any amount of

doubt as to whether really he was present in the chambers of

the accused officer at that time, since the purpose for his visit

to the office could have been enquired with other members in

the office and there was no need for him to wait in the

chambers of the accused officer to find out as to whether

there was any subsidy.

Further, the prosecution examined P.Ws.3 to 5 to prove

that this diary was brought into the chambers of the accused

officer along with the other files, but all the three witnesses

did not support the prosecution case. By that it does not

mean that the version of the accused officer that the diary

was already there on the table stands established, firstly for

the reason that such a plea was not taken at the earliest

point of time, that is when the accused officer was examined

immediately after the trap. On the other hand, the plea was

that he was not aware about the payment of any bribe.

Secondly, as seen from the argument advanced, Ex.P11

diary from where the tainted amount was seized, was on the

table, on the alleged date of trap and in his absence, amount

was planted there without his knowledge. A reading of the

evidence relating to Ex.P11 would establish that whenever the

accused officer was on camp, he will make relevant entries

therein including the timings. The entry dated 20.02.2011 in

Ex.P11 show the places where the accused officer was on that

day and time of his return to his office i.e., at 4.00 PM. The

said entries were made by the accused officer in his own

handwriting with pencil. The fact that the entries in Ex.P11

contains the handwriting of the accused officer is not

disputed. If really diary-Ex.P11 was left on the table of the

accused officer, such an entry namely about he returning to

the office at 4.00 PM will not find place. It is not the case of

the defence that immediately after coming into the office he

made the entries on 20.02.2001. The entries made by the

accused officer in his own handwriting with pencil

substantially establish that he has not left the tour diary in

his office room and it was with the accused officer all through

during the day. The entries dated 20.02.2001 in Ex.P11 not

only relates to the date of forward journey, but also contains

entries relating to return journey. Therefore, as rightly

argued by the learned Special Public Prosecutor Sri

S.M.Subhani, the diary was with the accused officer and after

he reached the office, the money was asked to be kept in the

diary by the accused officer. For all the reasons narrated

above, I see no reason to disbelieve the evidence of P.W.1 and

having regard to the evidence of other witnesses, namely,

P.Ws.3, 12, 13 and Exs.P7 and P8 (though not substantive

piece of evidence) but as the same get corroboration from all

quarters, in my view, the case of the prosecution stood

established and the findings of the trial court that the amount

of Rs.2,500/- was accepted as illegal gratification other than

legal remuneration for doing a favour warrants no

interference.

16. Though the learned counsel for the appellant relied

upon the judgment of the apex court in Meena v. The State

of Maharashtra1, wherein the Apex Court held as under :

"9. The essential ingredients to be established to indict a person of an offence under Section 5(I)(d) of the Act are that he should have been a public servant, that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161 IPC, requires that the person accepting the gratification should be a public servant, that he should accept the gratification for himself and the gratification should be as a motive or reward fording or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

10. We have bestowed our careful thought to the submissions made on either side, in the light of the evidence on record. We are of the view that neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient to convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question

2000 CrlLJ2273

was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted in and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrust into her hands. PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the courts below. The lady Constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW-1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. In this case, the role of Victoria was to enter first and hold the hands of the accused immediately after the acceptance of the bribe amount and she was stated to have done that, as planned. For reasons best known, such a vital and important witness has been withheld by the prosecution, from being examined Jagdish Bokade, who scribed the application dated 13.8.1986 for getting copies and who admittedly was all along with PW-1 and gave even the idea of lodging a complaint with the Anti-Corruption Bureau, has also been withheld from being examined. The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW-1 of the very incident when earlier examined in departmental proceedings

renders his testimony in this case untrustworthy. PW-3, the Head Copyist, seems to be the brain behind all these and that PW-1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW-3, his closeness to PW-1 and Jagdish Bokade stand well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below."

17. The above judgment, in my view, may not be of any help

to demolish the version of the prosecution. In the facts and

circumstances of the said case, the court held that facts

relevant were overlooked and acquitted the accused. But, the

case on hand is totally different.

18. In the result, the appeal fails and it is accordingly

dismissed, confirming the conviction and sentence passed in

C.C.No.12 of 2002 on the file of the Special Judge for SPE &

ACB Cases at Vijayawada. The bail bond of the appellant

shall be cancelled forthwith and he shall surrender to the

Court for serving the sentence imposed.

Consequently, miscellaneous petitions, if any, pending

shall stand closed.

______________________________ JUSTICE C.PRAVEEN KUMAR

Date : 27.01.2021

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