Sri Thummalapalli ... vs State Of A.P., Rep By District ...
2022 Latest Caselaw 2054 AP

           THE HON'BLE SRI JUSTICE K.SURESH REDDY

                  CRIMINAL APPEAL No. 130 of 2007

JUDGMENT:

Questioning the conviction and sentence passed by the Special

Judge for SPE & ACB Cases, Vijayawada (for short, 'the trial Court'),

in C.C.No. 1 of 2004, dated 17.01.2007, the Accused-Officer (for

short, 'A.O.') preferred the present appeal.

2. The appellant/A.O., was tried by the trial Court under

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

Corruption Act, 1988 (for short, 'the Act'). After completion of trial,

the trial Court convicted the appellant/A.O., and sentenced him to

suffer rigorous imprisonment for a period of two years and also to

pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for

three months under both the counts. Both the substantive sentences

were directed to run concurrently.

3. Brief facts enumerated from the evidence of prosecution

witnesses is as follows :

(i) The appellant/A.O., was working as Deputy

Inspector of Schools, Urban, Vijayawada, Krishna District, and he is

a public servant within the meaning of Section 2 (c) of the Act.

P.W.1 is the Head Master and Correspondent, Nava Bharathi U.P.

KSR, J.

Crl.A.No.130_2007

School, Maruthinagar, Vijayawada, for the last 30 years. Along with

him, 7 other teachers were also working in the said school.

(ii) While so, on 08.11.2002, P.W.1 submitted

salary bills belonging to himself and the other teachers for the

months August to October,2002 to the office of the appellant/A.O.

through post. On 11.11.2002 P.W.1 visited the office of the

appellant/A.O., and requested him to pass the bills and send the

same to the office of D.E.O., Machilipatnam. On that, the

appellant/A.O., demanded an amount of Rs.3,000/- as bribe for

forwarding the salary bills to D.E.O., P.W.1 expressed his inability to

pay bribe amount of Rs.3,000/-. Subsequently, on 15.11.2002, when

P.W.1 approached the appellant/A.O., who reiterated his earlier

demand and asked him to come to his house at about 7.00 or 8.00

pm., on 17.11.2002 along with bribe amount for processing and

forwarding the salary bills to D.E.O., Machilipatnam. As P.W.1 was

reluctant to pay the bribe amount, approached Anti-Corruption

Bureau Officials.

(iii) On 16.11.2002 at about 10.20 am., P.W.1

approached P.W.6-Dy.S.P., ACB, Vijayawada Range, Vijayawada,

and gave Ex.P1 report, who endorsed the same to Range-Inspector

for causing discreet enquiries about the antecedents of the

appellant/A.O., and P.W.1. Accordingly, Range-Inspector caused KSR, J.

Crl.A.No.130_2007

discreet enquiries and made his endorsement on Ex.P1 and

submitted the same to P.W.6 on 17.11.2002. Basing on that, P.W.6

registered a case in Cr.No.43/ACB/2002, under Section 7 of the Act.

Ex.P13 is the original FIR. Later, at about 5.30 pm., P.W.6 called

the mediators i.e., P.W.5 and another and introduced P.W.1 to

them. P.W.6 enquired P.W.1 about the bribe amount intended to be

paid to the appellant/A.O., The latter produced Rs.3,000/- i.e.,

Rs.1,000/- denomination note and 4 Rs.500/- denomination notes.

Thereafter, P.W.6 conducted Pre-trap proceedings in the presence

of P.W.5 and another, which is marked as Ex.P9.

(iv) Thereafter, P.W.6 along with trap laying party

and P.Ws.1 & 2 proceeded in two cars and reached near the

residence of the appellant/A.O., and stopped their cars at a distance

of 50 yards to the house of appellant/A.O., which is situated in the

upstairs of building. P.W.6 instructed P.Ws.1 & 2 to proceed to the

room of the appellant/A.O., Accordingly, P.W.1 went inside the room

of the appellant/A.O., and P.W.2 stood near the window. P.W.1

found the appellant sitting on a cot, then he wished the

appellant/A.O., and enquired about the stage of the salary bills. The

appellant/A.O., asked P.W.1, whether he has brought the bribe

amount, for which, the latter gave positive answer. When P.W.1 was

about to place the tainted currency in the hand of the KSR, J.

Crl.A.No.130_2007

appellant/A.O., the latter asked him to keep the tainted currency in

the Eenadu Sunday Magazine, which was lying on the cot of the

appellant/A.O., Accordingly, P.W.1 kept the tainted currency in the

Magazine and came out of the room and relayed pre-arranged

signal.

(v) Immediately, P.W.6 along with trap laying

party went inside the room of the appellant/A.O., and introduced

themselves and P.W.6 conducted Phenolphthalein test on both the

hands of the appellant/A.O., which proved 'Negative'. When P.W.6

questioned the appellant/A.O., about the tainted currency, he

pleaded ignorance. Then, P.W.6 called P.W.1 and enquired him,

who told that the tainted currency was kept in the Magazine. P.W.6

seized the said tainted currency from the Magazine lying on the cot

in between Pages 6 & 7 and prepared Post-trap proceedings as in

Ex.P11. Thereafter P.W.6 prepared a rough sketch as in Ex.P10.

P.W.6 along with mediators went to the office the appellant/A.O.,

and seized Exs.P2 to P6 under the cover of Ex.P12 mediators report.

Thereafter, he recorded the statements of P.Ws.1 & 2 and other

witnesses. After completion of investigation and after obtaining

sanction order, P.W.7 filed charge sheet.

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

to 7 and marked Exs.P1 to P13 apart from exhibiting M.Os.1 to 6.

KSR, J.

Crl.A.No.130_2007

5. After closure of the prosecution evidence, the

appellant/A.O was examined under Section 313 Cr.P.C., by explaining

the incriminating evidence against him. Appellant/AO denied the

evidence. No oral or documentary evidence adduced on behalf of

defence..

6. Learned Special Judge having considered the entire

evidence on record, convicted and sentenced the appellant/A.O., as

stated above. Aggrieved by the same, the appellant/A.O., filed the

present appeal.

7. Heard Sri Sai Mohan Rao, learned counsel for the

appellant/A.O., and Smt. A.Gayatri Reddy, learned Standing Counsel-

cum- Special Public Prosecutor for A.C.B cases.

8. Learned counsel for the appellant/A.O., strenuously

contended that P.W.1 is not a reliable witness, as he changed his

version from stage to stage. In his earliest report-Ex.P1, dated

16.11.2002, P.W.1 stated that on 11.11.2002 when he met the

appellant/A.O., he demanded bribe of Rs.3,000/- for processing

salary bills. Subsequently, in the statement recorded by the

Magistrate i.e., Ex.P3, the latter stated that the appellant/A.O.,

demanded bribe amount of Rs.5,000/. Subsequently, P.W.1 met him

twice or thrice and expressed his inability, the appellant reduced the

bribe amount from Rs.5,000/- to Rs.3,000/-. He further contended KSR, J.

Crl.A.No.130_2007

that P.W.1 in his deposition also stated that on 11.11.2002, the

appellant/A.O., demanded bribe amount of Rs.5,000/-, which was

reduced to Rs.3,000/-. As such, there is a variation with regard to

demand made by the appellant and as such, learned counsel pleaded

that no reliance can be placed on the evidence of P.W.1. Therefore,

he prays to set aside the conviction and sentence passed by the trial

Court.

9. This Court perused the entire evidence on record. It is

well settled that in a trap case, the prosecution has to prove demand

as well as acceptance. As seen from Exs.P1 & P3, P.W.1 changed his

version from stage to stage with regard to demand made by the

appellant. Therefore, no reliance can be placed on the evidence of

P.W.1, without any corroboration for the demand made by the

appellant/A.O., Moreover, the evidence of P.W.2 is concerned, he is

only an accompanying witness and his evidence is not helpful to the

case of prosecution with regard to the demand on the part of the

appellant/A.O., In such circumstances, taking into consideration the

evidence on record, it is held that the prosecution failed to prove

demand on the part of the appellant/A.O.,

10. Coming to the acceptance of bribe of Rs.3,000/- by the

appellant/A.O., is concerned, the prosecution mainly relied on the KSR, J.

Crl.A.No.130_2007

evidence of P.Ws.1 & 2. So far as the evidence of P.W.2 is

concerned, he did not support the case of prosecution and he was

declared hostile. P.W.1 in his Chief-examination has specifically

stated that at about 7.50 pm., he along with P.W.2 went to the

house of the appellant/A.O., along with bribe amount. He further

stated that he went inside the room of the appellant and found him

sitting on a cot. P.W.2 stayed outside the room near the window.

When the appellant asked about the bribe amount, P.W.1 took the

tainted currency from his pocket and when he was about to place the

same in the hand of the appellant/A.O., the latter asked him to keep

the tainted amount in Eenadu Sunday Magazine, which was lying on

the cot. Accordingly, P.W.1 kept the tainted amount in the said

Magazine and came out of the room and gave pre-arranged signal.

11. Thereafter, P.W.6 along with trap laying party went into

the room of the appellant and conducted chemical test on both the

hands of the appellants, which proved 'Negative'. When P.W.1

questioned the appellant about the tainted currency, the latter

pleaded ignorance. On that, P.W.6 called P.W.1 inside the room,

who informed that he kept the tainted currency in Eenadu Sunday

Magazine. Then, P.W.6 took out the Eenadu Sunday Magazine and

found the tainted currency in between page Nos.6 & 7 and he seized KSR, J.

Crl.A.No.130_2007

the same under the cover of Ex.P11-Post-trap proceedings.

Thereafter, P.W.6 questioned the appellant about the tainted amount

available in Eenadu Sunday Magazine. The appellant has stated that

about 8.00 pm., P.W.1 came to his house and enquired about the

previous day function at Ghantasalapalem, that both of them

witnessed TV for sometime and that when P.W.1 was about to leave

the house, the appellant/A.O., asked him to drop him at Z.P. Guest

house, as he was having some work. Thereafter, the appellant

changed his dress and came along with P.W.1. At that juncture, the

trap laying party came there and as such, the appellant pleaded

ignorance with regard to the said tainted currency found in Eenadu

Sunday Magazine. The said explanation offered by the appellant was

also incorporated in Ex.P11-Post-trap proceedings. In fact, P.W.1 in

his Chief-examination has specifically stated that the appellant/A.O.,

asked him to wait as he too will accompany him in his vehicle and he

was having some work. Thereafter, both of them came down from

stair case.

12. In fact, P.W.2 also stated in his evidence that there was

some conversation between the appellant/A.O., and P.W.1 inside the

room for sometime. P.W.2 further in his evidence stated that he

observed P.W.1 keeping the bribe amount in Eenadu Sunday KSR, J.

Crl.A.No.130_2007

Magazine. Of course, P.W.2 was declared as hostile by the

prosecution. Apart from the said evidence, there is no other

evidence on record to prove demand and acceptance on the part of

the appellant/A.O.,

13. As seen from the evidence of P.Ws.1, 5 & 6, the tainted

currency was recovered from Eenadu Sunday Magazine. Further, the

chemical test did not prove positive on the appellant/A.O.,

Admittedly, no money was recovered from the appellant. The

possibility of P.W.1 keeping the money in Eenadu Sunday Magazine

without the knowledge of the appellant/A.O., cannot be ruled out.

Further, it is suggested on behalf of the appellant that the D.E.O.,

inspected the school of P.W.1 and found certain irregularities and

called for explanation from P.W.1. The D.E.O also stopped releasing

salary of P.W.1 and other staff members from August-2002 onwards.

As such, the possibility of implicating the appellant/A.O., also cannot

be ruled out in the circumstances of case. Furthermore, P.W.1 stated

different versions at different stages with regard to demand and

acceptance by the appellant/A.O., As such, the prosecution failed to

establish the factum of demand as well as acceptance by the

appellant/A.O., KSR, J.

Crl.A.No.130_2007

14. Considering all these aspects into consideration, this

Court is of the opinion that the trial Court erred in convicting and

sentencing the appellant/A.O. As such, the finding arrived by the trial

Court is not based on any legal evidence and the same is not

sustainable. In such circumstances, the conviction and sentence

recorded by the trial Court is liable to be set aside.

15. IN THE RESULT, the criminal appeal is allowed setting

aside the conviction and sentence passed by the Special Judge for

SPE & ACB Cases, Vijayawada (for short, 'the Court below'), in

C.C.No.1 of 2004, dated 17.01.2007. The appellant/Accused-Officer

is acquitted of the charges leveled against him. Fine amount paid by

the appellant/A.O., shall be refunded. Bail bonds shall stand

cancelled.

Pending miscellaneous applications, if any, shall stand closed in

consequence.

___________________ K.SURESH REDDY, J.

27th day of April,2022.

RPD KSR, J.

Crl.A.No.130_2007

THE HON'BLE SRI JUSTICE K.SURESH REDDY

CRIMINAL APPEAL No. 130 of 2007

DATE: 27.04.2022

RPD