D.V.V.K.N.S.N.Murthy, vs The State ,
2022 Latest Caselaw 2417 AP

          THE HON'BLE SRI JUSTICE K.SURESH REDDY

       CRIMINAL APPEAL Nos. 1666 and 1713 of 2006

COMMON 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.24 of 2003, dated 28.11.2006, the Accused Officer No.1

(for short A.O.1) and Accused Officer No.2 (for short A.O.2)

preferred both these appeals.

     2.    As the issue involved in both the appeals is inter-related,

both the appeals are taken up together and are being disposed of by

a common judgment.

     3.    A.O.1 is the appellant in Crl. Appeal No.1713 of 2006.

A.O.2 is the appellant in Crl. Appeal No.1666 of 2006.

     4.    A.Os.1 & 2 were 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 Section 34 IPC. After completion

of trial, the trial Court convicted A.Os.1 & 2 and sentenced them to

suffer rigorous imprisonment for a period of two (02) years each

and also to pay a fine of Rs.5,000/- each in default to suffer

simple imprisonment for three (03) months each under two
                                                                        KSR, J.

Crl.A.Nos.1666 and 1713_2006

counts. Both the substantive sentences were directed to run

concurrently.

5. Brief facts enumerated from the evidence of prosecution

witnesses is as follows :

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

Assistant Engineer, whereas A.O.2 was working as Assistant

Lineman, Eastern Power Distribution Company Limited, (for short

'EPDCL') Limited, Tadepalligudem, West Godavari District, and they

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

(ii) P.W.1 is a resident of P.T.Colony, Tadepalligudem.

After his retirement from Indian Army, he was running a private

school at Tadepalligudem. He constructed 20 asbestos cement

sheet roofed sheds with his retirement benefits and eking his

livelihood on the rents received out of the said sheds. He applied

for three new electricity service connections in the month of

August,2002 and submitted his applications along with requisite fee

to A.O.1, who inturn handed over them to A.O.2. Then, A.O.1

informed P.W.1 that connections will be issued after inspection of

the premises. Exs.P3 to P5 are the said applications.

(iii) On 23.09.2002, P.W.1 approached A.O.1, who

informed him that three service connections cannot be issued and

he will issue two service connections for the present and directed KSR, J.

Crl.A.Nos.1666 and 1713_2006

P.W.1 to meet A.O.2. Accordingly, P.W.1 met A.O.2, who

demanded an amount of Rs.600/- as bribe to A.O.1 for each service

connection and Rs.400/- for himself as bribe for each service

connection and demanded total bribe amount of Rs.2,000/- i.e.,

Rs.1,200/- to A.O.1 and Rs.800/- to A.O.2 for providing two service

connections.

(iv) A.O.2 asked P.W.1 to come to the office on the

next day at 8.00 am., along with the demanded bribe amount and in

case, if P.W.1 fails to come to his office, A.O.2 will visit the house of

P.W.1 to collect the demanded bribe amount of Rs.2,000/-. P.W.1

reluctantly agreed to pay the demanded bribe amount and as he is

not willing to pay the same, he approached Anti-Corruption Bureau

officials.

(v) On 23.09.2002, at about 6.00 pm., P.W.1

approached P.W.8-Dy.S.P.,ACB, Eluru Range,Eluru and submitted

Ex.P1 report, who endorsed the same to P.W.9-Inspector, ACB,

Eluru Range, Eluru to cause discreet enquires against A.Os.1 & 2

and P.W.1. P.W.9 caused discreet enquires and made an

endorsement on Ex.P1 and submitted the same to P.W.8 on

24.09.2002. P.W.8 having received Ex.P1 report, registered the

same as a case in Cr.No.18/ACB-RCT-EWG/2002 under Section 7 of

the Act. Ex.P20 is the original FIR. P.W.8 called mediators i.e., KSR, J.

Crl.A.Nos.1666 and 1713_2006

P.W.6 and another to his office, and introduced P.W.1 to the

mediators. On further instructions, P.W.1 produced 20 Rs.100/-

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

A.Os.1 & 2. P.W.8 prepared Pre-trap proceedings under Ex.P12 in

the presence of P.W.6 and another.

(vi) Thereafter, P.W.8 along with trap laying party, left

the office and reached Tadepalligudem in two cars. P.W.8 reiterated

the instructions to P.W.1 and directed him to approach A.Os.1 & 2

and pay the tainted currency on their further demand. Then, P.W.1

along with mediator i.e., P.W.6 went to the office of A.O.1, which is

situated in the upstair of the building and did not find anyone in the

office. P.W.1 searched in the Varandah for sometime. Later, at about

8.15 pm., A.O.2 came to the office and enquired P.W.1 whether he

has brought the demanded bribe amount, for which, the latter

answered positively. Then, P.W.1 informed A.O.2 that he will wait till

the arrival of A.O.1 and requested him for the 3rd service connection.

Then, A.O.2 asked him to wait for sometime. At about 8.30 pm.,

A.O.1 came to the office and immediately, P.W.1 went into the room

of A.O.1 and met him. P.W.1 enquired A.O.1 about the 3rd

connection, for which, the latter informed that it is not possible at

this time and he will see the same in future. Then, A1 enquired KSR, J.

Crl.A.Nos.1666 and 1713_2006

P.W.1 about the demanded bribe amount, for which, the latter

replied positively.

(vii) In the meanwhile, A.O.2 entered into the office

room of A.O.1. When P.W.1 offered tainted currency to A.O.1, the

latter asked him to handover tainted currency to A.O.2. Accordingly,

P.W.1 gave tainted currency to A.O.2, who received the bribe

amount with his right hand and kept the same in his left side shirt

pocket with his left hand. Thereupon, P.W.1 came out and relayed

pre-arranged signal. Immediately, P.W.8 along with trap laying party

went into the room of A.O.1 and introduced themselves to A.Os.1 &

2. Then, P.W.8 conducted phenolphthalein test on A.Os.1 & 2. The

test conducted on A.O.1 proved 'Negative' and the test conducted

on A.O.2 proved 'Positive'. When P.W.8 questioned A.O.2, the latter

informed that both of them demanded bribe amount of Rs.2,000/-

i.e., Rs.1,200/- to A.O.1 and Rs.800/- to himself from P.W.1 for

providing two service connections. Accordingly, he received the

amount on behalf of himself, and on behalf of A.O.1 as per the

instructions of A.O.1. The said fact was also found mentioned in

EX.P19-Post-trap proceedings. During the course of Post-trap

proceedings, P.W.8 seized applications of P.W.1 i.e., Exs.P3 & P4

from A.O.1 under the cover of Ex.P19- Post-trap proceedings

panchanama. P.W.8 prepared rough sketch in Ex.P18. After KSR, J.

Crl.A.Nos.1666 and 1713_2006

completion of investigation and after obtaining sanction, P.W.9 filed

charge sheet.

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

to 9 and marked Exs.P1 to P20 apart from exhibiting M.Os.1 to 10.

7. 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 Exs.D1 & D2 were marked on

behalf of the appellants.

8. Learned Special Judge having considered the evidence of

prosecution witnesses, convicted and sentenced both of them, as

aforesaid. Aggrieved by the same, Accused-Officer No.1 filed

Crl.A.No.1713 of 2006 and Accused-Officer No.2 filed Crl.A.No.1666

of 2006.

9. Heard Smt.A.Chaya Devi, learned counsel for the

appellant/A.O.1 in Crl.A.No.1713 of 2006 and Sri G.V.S.Mehar Kumar,

learned counsel for the appellant/A.O.2 in Crl.A.No.1666 of 2006,

and Smt. A.Gayatri Reddy, learned Standing Counsel for ACB-cum-

Special Public Prosecutor for State in both the appeals.

10. Smt.A.Chaya Devi, learned counsel for the

appellant/A.O.1, in Crl.A.No.1713 of 2006 strenuously contended that KSR, J.

Crl.A.Nos.1666 and 1713_2006

the prosecution has not established the factum of acceptance by

A.O.1 and the chemical test conducted against him proved 'Negative'.

She further contended that as A.O.1 refused to provide three service

connections, P.W.1 bore grudge against him and implicated him in a

false case. She further argued that P.W.1 forcibly thrusted the

money into the pocket of A.O.2, went out and gave pre-arranged

signal. In such circumstances, she pleaded for acquittal of A.O.1 in

Crl.A.No.1713 of 2006.

11. Sri G.V.S.Mehar Kumar, learned counsel for the

appellant/A.O.2 in Crl.A.No.1666 of 2006 strongly argued that A.O.2

accepted the tainted currency on the instructions of A.O.1 and even

according to P.W.1, he received tainted currency as per the

instructions of A.O.1. He further contended that though A.O.2

resisted, P.W.1 forcibly thrusted the tainted currency into his pocket

and gave pre-arranged signal. He further pleaded that the demand

was also made on behalf of A.O.1 as such, both the demand as well

as acceptance by A.O.2 is only on behalf of A.O.1. and pleaded for

acquittal by setting aside the conviction and sentence passed by the

trial Court.

12. This Court perused the entire evidence on record. The

evidence of P.W.1 is consistent, right from the stage of Ex.P1. It is

his specific case that both A.Os.1 & 2 are having common intention KSR, J.

Crl.A.Nos.1666 and 1713_2006

and they demanded a sum of Rs.600/- for each service connection as

bribe to A.O.1 and Rs.400/- for each service connection to A.O.2.

Further, it is also specifically mentioned in Ex.P19-Post-trap

proceedings, A.O.2 in his spontaneous explanation has specifically

stated that he received the amount on the instructions of A.O.1 and

the total amount of Rs.2,000/-, has to be divided @ Rs.1,200/- to

A.O.1 and Rs.800/- to A.O.2. In such circumstances, the

presumption under Section 20 of the Act has not been rebutted by

both the appellants/A.Os.1 & 2.

13. So far as the theory of thrusting is concerned, this Court

is not able to accept the said version as there is no evidence on

record, asking the defacto-complainant to take away the amount or

resisting P.W.1 in thrusting the bribe amount or raising hue and cry,

immediately after the alleged thrusting. As such, this conduct on the

part of both A.Os.1 & 2 is silent. In such circumstances, there is no

hesitation in coming to the conclusion that the demand and

acceptance of Rs.2000/- by A.Os.1 & 2 has been established by the

prosecution. Accordingly, the prosecution is able to prove both

demand and acceptance by A.Os.1 & 2. In such circumstances,

there are no grounds to interfere with the conviction recorded by the

learned Special Judge in C.C.No.24 of 2003. Finally, the learned KSR, J.

Crl.A.Nos.1666 and 1713_2006

counsels for A.Os.1 & 2 requested to take a lenient view with regard

to the sentence of imprisonment alone.

14. IN THE RESULT, the Criminal Appeal No.1666 of 2006

and Criminal Appeal No.1713 of 2006 are dismissed confirming the

conviction recorded by the Special Judge for SPE & ACB Cases,

Vijayawada, in C.C.No.24 of 2003, dated 28.11.2006. However, the

sentence of imprisonment alone is reduced from two (02) years to

one (01) year under both the counts, while maintaining the fine

amount.

Pending miscellaneous applications, if any, shall stand closed in

consequence.

6th day of May,2022.

RPD

___________________ K.SURESH REDDY, J.

KSR, J.

Crl.A.Nos.1666 and 1713_2006

THE HON'BLE SRI JUSTICE K.SURESH REDDY

CRIMINAL APPEAL Nos. 1666 and 1713 of 2006

DATE: 06.06.2022

RPD