Rayala Narasimha Rao vs The State Of A.P., Rep. By Range ...
2022 Latest Caselaw 2415 AP

           THE HON'BLE SRI JUSTICE K.SURESH REDDY

              CRIMINAL APPEAL No. 1011 of 2006

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.33 of 2000, dated 27.06.2006, the appellant/Accused-

Officer No.1 (for short, 'A.O.1') preferred the present appeal.

2. The appellant/A.O.1 along with Accused Officer No.2 (for

short A.O.2) were charge-sheeted under Sections 7 and 13 (1) (d)

read with Section 13 (2) of Prevention of Corruption Act, 1988 (for

short, 'the Act') r/w 34 IPC. During pendency of trial, Accused

Officer No.2 died on 13.06.2006, hence the case against him abated.

3. The appellant/A.O.1., 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') r/w 34 IPC. After

completion of trial, the trial Court convicted the appellant/A.O.No.1,

and sentenced him to suffer rigorous imprisonment for a period of

two (02) years and also to pay a fine of Rs.5,000/-, in default to

suffer simple imprisonment for three (03) months, under two counts.

Both the substantive sentences were directed to run concurrently.

KSR, J.

Crl.A.No.1011_2006

4. Brief facts enumerated from the evidence of prosecution

witnesses is as follows :

(i) The appellant/A.O.1, was working as Senior

Accountant in Sub-Treasury Office, Kanchikacherla, whereas A.O.2

was working as Sub-Treasury Officer, Kanchikacherla and they are

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

(ii) P.W.3-defacto-complainant was working as Senior

Accountant in Primary Health Centre, Veerulapdu and he used to

look after the treasury work of his office. On 25.11.1998 P.W.3

submitted T.A. bills of their staff along with Fixed Travelling

Allowance (for short 'F.T.A') bills. The appellant/A.O.1 sanctioned

the F.T.A. bills on the same day and kept T.A bills pending, which

are marked as Exs.P1 to P8. When P.W.3 enquired about the same,

the appellant/A.O.1 demanded him to pay 5% commission as bribe.

When P.W.3 approached A.O.2, he also supported the version of

A.O.1. P.W.3 reluctantly agreed to pay the bribe of Rs.450/- i.e.,

5% of T.A bills. Thereafter, P.W.3 went to the bank and encashed

the F.T.A bills. P.W.3 informed about the demand made by A.Os.1

& 2 to P.W.1-Medical officer, Primary Health Centre, Veerulapadu,

who did not agree to pay the bribe amount stating that they are also

public servants. As P.W.3 is not willing to pay bribe amount, he

approached P.W.11-Dy.S.P., ACB, Vijayawada Range, at about 8.00 KSR, J.

Crl.A.No.1011_2006

am., on 27.11.1998 and presented Ex.P21 written report against

A.Os.1&2, who endorsed the same to P.W.12-Inspector, ACB,

Vijayawada for causing discreet enquiries. P.W.12 caused enquiries

against A.Os.1 & 2 as well as P.W.3 and made an endorsement on

Ex.P21.

(iii) Later, on 28.11.1998 at about 8.00 am., after

receipt of Ex.P21 from P.W.12, P.W.11 registered a case in

Cr.No.33/ACB-VJA/1998 under Section 7 of the Act. Ex.P36 is the

original FIR. On the same day, at about 8.30 am., P.W.11 called

P.W.3 and mediators i.e., P.W.7 and another to his office,

introduced P.W.3 to the mediators. On further instructions, P.W.3

produced 4 Rs.100/- denomination notes and 1 Rs.50/-

denomination note, which is proposed to be paid towards bribe to

A.Os.1 & 2. After complying the formalities, Ex.P26-Pre-trap

proceedings have been concluded.

(iv) At about 9.45 am., P.W.11 along with trap laying

party and P.W.3 proceeded to Kanchikacherla and reached

Ambedkar Statue Centre at 10.45 am., P.W.11 reiterated his earlier

instructions to P.W.3 that pay the tainted currency to A.O.1 on his

further demand. Then, P.W.3 approached A.O.1, who was attending

his duties at his seat. P.W.3 sat in a chair, which is opposite to the

chair of A.O.1 and enquired about the passing of T.A bills. Then, KSR, J.

Crl.A.No.1011_2006

A.O.1 asked P.W.3 whether he has brought the proposed bribe

amount, for which, the latter gave positive reply. Then, P.W.3 gave

the tainted currency of Rs.450/- to A.O.1, who took it and counted

the same. He kept Rs.200/- in his shirt pocket and gave remaining

Rs.250/- to A.O.2. Thereafter, A.O.1 came back to his seat and

passed orders on TA bills and sent the same for approval of A.O.2.

Immediately, P.W.3 came out and relayed pre-arranged signal.

(v) Immediately, P.W.11 along with mediators rushed

to the office of A.O.1 and introduced themselves to him. He

conducted phenolphthalein test on A.O.1, which proved 'Positive'.

P.W.11 asked A.O.1 to produce the bribe amount and he produced 2

Rs.100/- denomination notes from his left side shirt pocket. The

shirt pocket of A.O.1 was also subjected to phenolphthalein test,

which proved 'Positive'. Then, P.W.11 asked A.O.1 about T.A. bills,

who informed that they were sent to A.O.2 for signature.

Immediately, P.W.11 along with trap laying party went to the room

of A.O.2 and introduced themselves. P.W.11 conducted

phenolphthalein test on the right hand fingers of A.O.2, which

proved 'Positive' and left hand fingers proved 'Negative'. On

questioning, A.O.2 produced the tainted currency of Rs.250/- i.e., 2

Rs.100/- denomination notes and 1 Rs.50/- denomination note.

P.W.11 seized the same under the cover of Ex.P31-Post-trap KSR, J.

Crl.A.No.1011_2006

proceedings. On questioning, A.O.2 also produced T.A Bills i.e.,

Exs.P1 to P8. Then, P.W.11 prepared a rough sketch as in Ex.P28

and recorded the statements of other witnesses. After completion

of investigation and after obtaining sanction order, P.W.13-

Inspector, ACB, Vijayawada, filed charge sheet.

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

to 13 and marked Exs.P1 to P36 apart from exhibiting M.Os.1 to 12.

6. 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. D.W.1 was examined and Ex.D1 was marked on behalf of

the appellant/A.O.1.

7. Learned Special Judge having considered the entire

evidence on record, convicted and sentenced the appellant/A.O.1, as

stated above. Aggrieved by the same, the appellant/A.O.1, filed the

present appeal.

8. Heard Sri A.Hariprasad Reddy, learned counsel for the

appellant/A.O.1, and Smt. A.Gayatri Reddy, learned Standing Counsel

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

KSR, J.

Crl.A.No.1011_2006

9. Learned counsel for the appellant/A.O.1, strenuously

contended that there is no mention with regard to the demand by

A.O.1 either in FIR or in the evidence of P.W.3. He further

contended that when there is no demand initially, question of further

demand does not arise. Though, the prosecution is able to prove

acceptance by the appellant/A.O.1, the appellant/A.O.1 cannot be

convicted merely on the basis of acceptance. Further, he argued

that P.W.3 has already borrowed an amount of Rs.500/- from him

and he paid the same to A.O.1 towards discharge of hand loan. He

further contended that there is a delay in reaching the FIR to the

Court. Finally, he contended that P.W.3 is not a reliable witness and

he was suspended by the authorities on the ground of misusing and

misappropriation of Family Planning Funds. He also states that as

P.W.3 was related to the then S.I., by name Babu Rao, who was

working in ACB and to secure re-transfer to West Godavari District,

P.W.3 resorted to launch false prosecution and deposing against the

appellant/A.O.1. Therefore, he prays to set aside the conviction and

sentence passed by the trial Court.

10. On the other hand, learned Special Public Prosecutor

submitted that the prosecution is able to prove demand as well as

acceptance on the part of the appellant/A.O.1. It is only after KSR, J.

Crl.A.No.1011_2006

accepting the bribe, the appellant/A.O.1, put his signatures on

Exs.P1 to P8 and forwarded them to A.O.2. Exs.P1 to P8 seized from

A.O.2 clearly show that A.O.1 has already signed on them. She

further contended that on the date of report of Ex.P21 and on the

date of trap, official favour was pending with A.Os.1 & 2. She

further pleaded that A.O.1 received amount of Rs.450/- and counted

with both hands and keeping Rs.200/- in his pocket, handed over

Rs.250/- to A.O.2. The chemical test conducted on both the hands

of A.O.1 proved 'Positive', so far as, chemical test conducted on the

right hand of A.O.2 only proved 'Positive'. Further, the hand loan

theory put forward by the appellant/A.O.1 is highly artificial and

cannot be accepted. In such circumstances, the prosecution is able

to prove both demand and acceptance by the appellant/A.O.1.

11. This Court perused the entire evidence on record. P.W.3

in his evidence has given entire episode with crystal clear and there

is no scope to doubt the version of P.W.3. As seen from the cross-

examination of P.W.3, the suggestion that was put forward by the

appellant was that he borrowed an amount of Rs.500/- from the

appellant/A.O.1., on 19.11.1998 as the same was required to look

after his transfer from Veerulapadu to West Godavari District. It is

his further suggestion that as the appellant was not having Rs.500/-

KSR, J.

Crl.A.No.1011_2006

at that time, A.O.1 took Rs.250/- from A.O.2 and Rs.250/- from staff

members, to lend total advance of Rs.500/- to P.W.3. As the defence

case is not tenable, this loan theory is highly artificial and does not

inspire confidence of this Court. Further, the suggestion made to

P.W.3 that his relative, S.I. Babu Rao is working in ACB is vague and

P.W.3 denied the said suggestion. So far as delay in reaching F.I.R to

the Court, the same cannot affect the prosecution case in any

manner. In these circumstances, the appellant/A.O.1 failed to

discharge his burden rebutting the presumption under Section 20 of

the Act.

12. In view of the above evidence on record, the prosecution

is able to prove the demand and acceptance on the part of the

appellant/A.O.1. In such circumstances, there are no grounds to

interfere with the conviction recorded by the learned Special Judge.

Finally, the learned counsel for the appellant/A.O.1 requested to take

a lenient view with regard to the sentence of imprisonment alone.

13. IN THE RESULT, the criminal appeal is dismissed

confirming the conviction recorded by the Special Judge for SPE &

ACB Cases, Vijayawada, in C.C.No. 33 of 2000, dated 27.06.2006.

However, the sentence of imprisonment alone is reduced from two

(02) years to one (01) year under both the counts, while KSR, J.

Crl.A.No.1011_2006

maintaining the fine amount. Further, the appellant/A.O.1 is directed

to surrender forthwith before the trial court to serve the remaining

sentence.

Pending miscellaneous applications, if any, shall stand closed in

consequence.

___________________ K.SURESH REDDY, J.

6th day of May,2022.

RPD KSR, J.

Crl.A.No.1011_2006

THE HON'BLE SRI JUSTICE K.SURESH REDDY

CRIMINAL APPEAL No. 1011 of 2006

DATE: 06.05.2022

RPD