Andhra Pradesh High Court - Amravati
The State Of Ap Rep By Its Spl. Pp Hyd., For ... vs Sri D. Ratna Kumar, on 28 December, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL No.37 OF 2008
JUDGMENT:
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Challenge in this Criminal Appeal is to the judgment, dated
17.08.2007 in C.C.No.21 of 2001, on the file of Special Judge for
SPE & ACB Cases-cum-III Additional District & Sessions Judge,
Visakhapatnam ("Special Judge" for short), whereunder the
learned Special Judge exonerated the Accused Officer ("A.O." for
short) not guilty of the charges under Sections 7 and 13(1)(d)
r/w 13(2) of the Prevention of Corruption Act ("P.C. Act" for
short).
2) The parties to this Criminal Appeal will hereinafter
be referred to as described before the learned Special Judge for
the sake of convenience.
3) The State, represented by the Inspector of Police,
A.C.B., Visakhapatnam Range, filed charge sheet in Crime
No.3/RC-ACB/WLR/2000, alleging the offences under Sections 7
and 13(1)(d) r/w 13(2) of the P.C. Act.
4) The case of the prosecution, in brief, as set out in
the charge sheet is as follows:
P.W.1-G. Srirama Murthy is the defacto-complainant, who
worked as Special Teacher in Mandal Parishad Elementary
School, Valugudem Village of Koyyuru Mandal from 17.08.1998
to the date of trap i.e., 22.04.2000. In the year 1999, P.W.1 fell
in sick due to Malaria fever, as such applied leave for the period
15.08.1999 to 24.08.1999 and from 16.10.1999 to 24.10.1999
and he stayed during the said leave period in the residence at
Valugudem village. Except leave period, P.W.1 was attending
the School regularly. A.O. was the leave sanctioning authority
and he informed P.W.1 that he received complaint from the
villagers about his absence to the duties and also informed that
he would visit the village and cause necessary enquiry in the
matter. P.W.1 met the A.O. number of times and requested to
make necessary enquiry and submit the report, as his salaries
for the month of August, October, November, December, 1999
and January, February, 2000 were withhold. But the A.O.
dodged the matter and finally on 16.02.2000 the A.O. visited
Valugudem village and conducted enquiry with villagers and
Vidya Committee Chairman. The said enquiry disclosed that
except the leave period, P.W.1 attended the duties regularly.
A.O. submitted his enquiry report to the Mandal Development
Officer on 17.02.2000 by recommending the salary for the leave
period from 15.08.1999 to 24.08.1999 and payment of salaries
for the month of August, October, November and December,
1999 and January, February, 2000 except nine(9) days leave
period in October, i.e., 16.10.1999 to 24.10.1999. P.W.1 met
the A.O. in the Office at Koyyuru and he was informed by the
A.O. that the leave applied for nine days in the month of
October, 1999 was not sanctioned. P.W.1 requested A.O. to
sanction the leave for the said period. There upon A.O.
demanded bribe amount of Rs.1,000/- to sanction the leave for
the said period and threatened P.W.1 that unless leave is
granted for the said period, P.W.1 services cannot be
regularized. In the said circumstances, P.W.1 reluctantly agreed
to fulfill the demand of A.O. and requested two days time to pay
the demanded amount. The A.O. suggested P.W.1 to file
separate leave application for nine days period in the month of
October, 1999 and instructed to give the leave application along
with the demanded amount of Rs.1,000/- on 22.04.2000 at his
residence, Narsipatnam and assured that he will grant the leave
after receipt of demanded amount. P.W.1 prepared casual leave
application for the said period and handed over the same along
with arrears bill to the Education Clerk on 19.04.2000. P.W.1
was not willing to pay the demanded amount, as such he filed
written complaint, dated 21.04.2000 before the Dy.S.P., ACB,
Visakhapatnam at 9-00 a.m. requesting to take necessary
action. The Dy.S.P. asked P.W.1 to come on the next day along
with proposed bribe amount. Meanwhile he made antecedents
enquiry and registered crime on 22.04.2000 and took up
investigation. P.W.1 appeared in the office of ACB,
Visakhapatnam on 22.04.2000. On the same day, P.W.1 along
with raid party went to Narsipatnam at 7-45 a.m. and P.W.1
paid the tainted amount of Rs.1,000/- to A.O. and A.O. took the
amount and kept in his shirt pocket, meanwhile the ACB raid
party raided the house of A.O. and trapped A.O. along with
tainted amount of Rs.1,000/-. The Dy.S.P. conducted chemical
test on the hand fingers of A.O. and on the inner linings of shirt
pocket of A.O. and the result of chemical examination was
positive. A.O. was arrested and released on the personal bond
on the spot and the required documents were seized by the
Dy.S.P. After completing investigation, prosecution sanction
order was obtained vide G.O.Ms.No.26, dated 22.02.2001,
issued by the Education Department. The investigation disclose
that A.O. received Rs.1,000/- to show the official favour to grant
nine days leave for the absent period in the month of October,
1999.
5) The learned Special Judge on consideration of the
material took cognizance under Sections 7 and 13(1)(d) r/w
13(2) of P.C. Act and issued summons to A.O. On appearance
of A.O. and on compliance of Section 207 of the Code of
Criminal Procedure ("Cr.P.C." for short) and on compliance of
Section 239 of Cr.P.C., the learned Special Judge framed
charges under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act
against A.O. and explained to him in Telugu, for which he
pleaded not guilty and claimed to be tried.
6) In order to establish the guilt against A.O., the
prosecution examined P.W.1 to P.W.4 and got marked Ex.P.1 to
Ex.P.27, Ex.P.15(a), Ex.P.15(b) and Ex.P.15(c) and M.O.1 to
M.O.8. After closure of the evidence of prosecution, A.O. was
examined under Section 313 of Cr.P.C. with reference to the
incriminating circumstances appearing in the evidence let in for
which he denied the same. He filed his written statement and
reported the defence evidence.
7) The substance of the contention of A.O. according to
the written statement is as follows:
There were news items in Vaartha and Andhra Jyothi
Newspapers that P.W.1 was not attending the duties in the
School. P.W.1 informed him that he was suffering from high
fever due to Malaria, as such, he could not attend the School
during 15.08.1999 to 24.08.1999 and 16.10.1999 to
24.10.1999. There upon he asked P.W.1 to submit Medical
Certificate for the leave period 16.10.1999 to 24.10.1999 as
there was complaint against P.W.1. He conducted enquiry and
submitted enquiry report to the Mandal Parishad Development
Officer on 17.02.2000 recommending to pay the salary arrears
of P.W.1 including two leave periods in the month of August and
October. The M.P.D.O., asked clarification from him and he
complied the clarification. P.W.1 drawn the due salaries on
23.03.2000 except for the period 16.10.1999 to 24.10.1999.
On 19.04.2000, P.W.1 came to his office and asked to
sanction leave for the period 16.10.1999 to 24.10.1999. He
demanded Medical Certificate for the relevant period. There
upon P.W.1 left the office and later he came to know that P.W.1
submitted separate leave application for the period 16.10.1999
to 24.10.1999 and another casual leave application for
22.04.2000 and submitted arrears bill for leave period before
the Education Clerks, Sri B. Satyanarayana. On 22.04.2000,
P.W.1 came to his house and repaid the loan amount borrowed
from him and also gave the casual leave application for the
period 16.10.1999 to 24.10.1999 and requested to sanction the
leave. He asked P.W.1 to wait at A.P.S.R.T.C. Bus Stand for half
an hour, so that he would come and join and both of them
would proceed to the office of M.E.O., Koyyuru. He also assured
that he will sanction the leave at the office as he was under the
impression that P.W.1 has got the Medical Certificate. There
upon P.W.1 left his house. Immediately the trap party came to
the house, conducted Sodium Carbonate Solution test on his two
hand fingers and the amount was seized. In fact, P.W.1 repaid
the borrowed loan amount on that day. He accepted the amount
as repaid loan amount but not as illegal gratification. In
furtherance of the defence, A.O. examined D.W.1.
8) The learned Special Judge on considering the
material available on record, found the A.O. not guilty of the
charges under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act.
Felt aggrieved of the same, the unsuccessful State filed the
present Criminal Appeal.
9) Now, in deciding this Criminal Appeal, the points
that arise for consideration are as follows:
(1) Whether the A.O. was a public servant within the
meaning of Section 2(c) of P.C. Act and whether the
prosecution proved valid sanction to prosecute A.O. for the
charges leveled?
(2) Whether the prosecution proved the allegations of
demand for bribe prior to the date of trap and on the date
of trap and that in pursuant thereof, the A.O. accepted the
bribe amount from P.W.1 and he obtained such an amount
by corrupt or illegal means or by abusing his position as
public servant?
(3) Whether the judgment, dated 17.08.2007 in C.C.No.21
of 2007 is sustainable under law and facts and whether
there are any grounds to interfere with the same?
Point No.1:-
10) Insofar as this point is concerned, the prosecution
exhibited Ex.P.27 which shows that the sanctioning authority on
due verification of the material available, accorded sanction to
prosecute A.O. G.O.Ms.No.26 was brought in evidence with
consent as Ex.P.27. So, the prosecution proved that A.O. was a
public servant within the meaning of Section 2(c) of the P.C. Act
and obtained a valid sanction to prosecute A.O.
Point Nos.2 and 3:-
11) Smt. A. Gayathri Reddy, learned Standing Counsel
for ACB and Special Public Prosecutor, appearing for the
appellant/State, would contend that the learned Special Judge
believing the defence theory that A.O. got the amount towards
repayment of hand loan obtained by P.W.1 exonerated A.O.
Apart from this, the learned Special Judge also made a finding
that already A.O. recommended for the salary due to P.W.1 for
the period from 16.10.1999 to 24.10.1999 basing on the
evidence of P.W.3 and Ex.P.15-enquiry report. But the fact
remained is that the leave application to be attended by A.O.
covering the above said period remained unattended and P.W.1
was under an impression that A.O. had to process his leave
application, paid the bribe amount to A.O. P.W.1 supported the
case of the prosecution. P.W.1, the mediator and P.W.4 the trap
laying officer supported the case of the prosecution. The learned
Special Judge did not appreciate the evidence on record
properly, as such, the appeal is liable to be allowed.
12) Sri Murali Babu, D., learned counsel appearing for
the respondent/A.O., would contend that the conduct of P.W.1
throughout was highly suspicious. He developed grouse against
A.O. as A.O. was an enquiry officer. Though A.O. exonerated
P.W.1 of the allegations of non-attending duties, but he
deliberately trapped A.O. by repaying the hand loan amount of
Rs.1,000/-. In view of the evidence of P.W.3, it is very clear
that already A.O. recommended for salary to P.W.1 during the
absent period. It was also defence of A.O. that he asked P.W.1
to produce medical certificate for nine days as he sought leave
on medical grounds. Evidence is such that A.O. recommended to
process the salary amount anticipating the compliance of
defects, if any, in the leave application. The salary for the leave
period was only around Rs.400/-. It was rather improbable that
P.W.1 was compelled to pay the bribe of Rs.1,000/- to get an
amount of Rs.400/-. The defence placed evidence before the
learned Special Judge that there was no question of any break in
service and for the absent period probation can be extended.
One of the allegations in the prosecution case is that A.O.
demanded bribe from P.W.1 for granting nine days period of
leave on the ground that if it is not granted, there would be
break in service. A.O. falsifies such a contention before the
learned Special Judge that there was a possibility for extension
of probation towards regularization. The findings of facts made
by the learned Special Judge were on reasonable basis, as such,
this Court cannot interfere with an order of acquittal as long as
the findings were on reasonable basis. With the above said
submissions, he would contend that the appeal is liable to be
dismissed.
13) As seen from the report lodged under Ex.P.25,
though the allegations are omnibus but the main allegation is
such that A.O. did not process the leave application covering the
period from 16.10.1999 to 24.10.1999 and he demanded bribe
of Rs.1,000/- so as to process the same. It also contained an
allegation that unless the leave is granted, his services will not
be regularized.
14) Coming to the evidence of P.W.1, he supported the
case of the prosecution undoubtedly. According to him, he
applied for leave from 15.08.1999 to 24.08.1999 as he was
suffering with Malaria fever. He applied for leave from
16.10.1999 to 24.10.1999 also. Ex.P.1 is the leave letter for the
period from 15.08.1999 to 24.08.1999. Ex.P.2 is the leave letter
for the period from 16.10.1999 to 24.10.1999. They are
undated. He sent the leave letters after lapse of leave period.
He was a Special Grade Teacher. He did not receive leave
sanction information. His salary in August, 1999 was stopped.
His salary for the month of October, 1999 was also stopped.
After lapse of leave, he attended for duties. A.O. informed him
that he received complaints against him (P.W.1) from the
villagers and Executive Committee Members about his irregular
in duties. A.O. conducted some enquiry in this regard. On
17.02.2000 also he submitted his request letter to grant leave.
A.O. demanded him to pay bribe of Rs.1,000/- for which he
expressed his inability. A.O. replied that he will not sanction
leave and he will not recommend for regularization. So, he
accepted to pay the amount. A.O. instructed him to bring the
amount on 22.04.2000. On 19.04.2000 he presented another
leave letter and arrears bill. Ex.P.4 is the leave letter undated.
Ex.P.5 is the leave period bill. On 19.04.2000 he also submitted
a letter in M.P.D.O. Office for leave on 22.04.2000. Ex.P.6 is the
letter, dated 19.04.2000 for the leave of 22.04.2000. He
presented Ex.P.7 report before ACB. He further supported the
case of the prosecution with regard to the pre-trap events. With
regard to the post-trap events, he deposed that on 22.04.2000
he proceeded to the house of A.O. and A.O. is there and A.O.
asked him as to whether he brought the amount for which he
replied positively and then he gave the amount to A.O. After
receiving the amount, he picked up Ex.P.8 letter from his pocket
and handed over to A.O. A.O. kept it in his hand bag and asked
him to wait in RTC Bus Stand. Then he came out and relayed a
pre-arranged signal. This is the substance of the evidence of
P.W.1.
15) Coming to the evidence of P.W.2, the mediator and
P.W.4-the trap laying officer, they spoke of the events in pre-
trap and post-trap. They testified that on receipt of pre-arranged
signal, they rushed to A.O. and conducted chemical test which
yielded positive result and they recovered the tainted amount
from A.O.
16) The prosecution examined P.W.3 regarding the
procedural aspects with regard to the leave and his evidence is
that P.W.1 was working as Special Teacher at Valugudem of
Koyyuru Mandal. A.O. was the casual leave granting authority
over P.W.1. A.O. made enquiry about the allegations against
P.W.1 and filed report before him. Ex.P.15(a) is the report,
dated 17.02.2000. For the absent period in between 16.10.1999
to 24.10.1999 no leave was granted. The remaining absent
period is treated as duty period and A.O. recommended for
payment of salary except the absent period from 16.10.1999 to
24.10.1999. On receipt of report from A.O., he endorsed on
Ex.P.15(a) to release the salary except absent period from
16.10.1999 to 24.10.1999. Along with Ex.P.15(a), the A.O.
annexed the statements of Educational Committee Members and
villagers. They are Ex.P.15(b) and Ex.P.15(c). A.O. exonerated
the charges against P.W.1 in the report.
17) During cross examination he deposed that C.E.O.,
Zilla Parishad, addressed a letter to the M.P.D.O. asking to
conduct enquiry against P.W.1 which was forwarded to A.O. and
on such instructions only, A.O. conducted enquiry and filed
report. A.O. filed report on 17.02.2000 recommending to pay
salary for the month of August, 1999; October, 1999;
November, 1999; December, 1999 and January, 2000 and leave
16.10.1999 to 24.10.1999. So, according to the evidence of
P.W.3, A.O. did his job by recommending to pay the leave salary
for the period of August, 1999; October, 1999; November,
1999; December, 1999 and January, 2000 and also during the
leave period. What is evident from Ex.P.15(a) is such that A.O.
recommended to pay the salary for August, 1999;, October,
1999; November, 1999; December, 1999 and January, 2000.
Though he did not disclose the period of leave from 16.10.1999
to 24.10.1999, but there was a recommendation to process the
salary for the month of October, 1999.
18) The finding of the facts recorded by the learned
Special Judge were that A.O. already duly recommended to
process the leave salary for the absent period and that the leave
application submitted by P.W.1 under Ex.P.1 and Ex.P.2 did not
contain any dates and further he submitted leave applications
deliberately even thereafter and including on the date of trap
and P.W.1 was not a reliable witness and A.O. had his possible
explanation in the post-trap as to the manner in which he dealt
with the tainted amount that is repayment of hand loan by
P.W.1 which he borrowed from A.O. previously.
19) It is well settled that in an appeal against an order
of acquittal as long as the findings of facts recorded by the
learned Special Judge are reasonable, this Court cannot interfere
with the same. Now, the simple question that falls for
consideration is as to whether the findings recorded by the
learned Special Judge are unreasonable so as to interfere with
an order of acquittal.
20) It is to be noted that basically as evident from
Ex.P.1 and Ex.P.2, the leave applications of P.W.1 covering the
period from 15.08.1999 to 24.08.1999 and 16.10.1999 top
24.10.1999, were undated. There was no dispute whatsoever
that those leave applications were submitted belatedly after
expiry of the period of leave. As evident from Ex.P.15(a), A.O.
exonerated P.W.1 of the allegations by stating that except for
the leave period, he was attending duties regularly. He
mentioned the fact that for August, 1999 P.W.1 applied for 10
days leave and for October, 1999 he applied for 9 days leave
and that he was due for the salary of August, 1999, October,
1999; November, 1999; December, 1999 and January, 2000
and that the salary for the above period may be passed. A close
perusal of Ex.P.15(a) means that A.O. also recommended for
salary for the leave period. Though there was no order under
Ex.P.1 and Ex.P.2 granting leave, but on that ground itself the
defence of A.O. cannot be disbelieved. In fact, it is quite
interesting to note that according to the evidence available on
record, though the leave application under Ex.P.2 for 9 days was
pending, P.W.1 presented Ex.P.4 another leave application
covering the period from 16.10.1999 to 24.10.1999. According
to P.W.1, it was on the demand made by A.O. which is not
tenable. The contention of the prosecution is that A.O.
demanded bribe of Rs.1,000/- so as to grant the leave on the
pretext that if it is not granted, there would be a break in
service or services of P.W.1 would not be regularized. There is
no dispute that as per the evidence available on record 9 days
leave salary was only Rs.400/- and odd. It is rather improbable
to assume that to get the leave salary of Rs.400/- and odd,
P.W.1 was compelled to pay the bribe of Rs.1,000/-. According
to the allegations, P.W.1 was demanded to pay Rs.1,000/- with
a threatening that if leave is not granted, there would be a
break in service.
21) It is to be noted that before the learned Special
Judge, a G.O.Ms.No.134, dated 10.06.1996 was placed on
record which reveals that casual leave, special casual leave,
earned leave, half pay leave and maternity leave is applicable to
the Stipendiary teachers on par with the regular appointed
teachers and if there is any gap in the probationary period, the
probationary period will extend for the gap period. So, it does
not mean that on account of non-sanctioning of leave, services
will not be regularized. Looking into the same, the very
allegations in Ex.P.15(a) report that unless bribe is paid,
services will not be regularized shall stands collapsed. Having
regard to the above, the learned Special Judge suspected the
conduct of P.W.1 that he presented a leave application afresh on
the date of trap. P.W.1 had no necessity to present another
leave application covering the period on the date of trap unless
it is with a deliberate intention.
22) Apart from this, there was no dispute that A.O. dealt
with tainted amount. A.O. set forth a defence in the post-trap
before the D.S.P. that the amount which he received from P.W.1
was towards repayment of hand loan. The defence of A.O. even
before P.W.1 is that as he was suffering with financial burden for
non-drawing of salary, he borrowed a sum of Rs.1,000/- from
A.O. P.W.1 denied such defence theory. The defence set forth
by A.O. before the learned Special Judge was on the basis of his
version in the post-trap proceedings. The prosecution did not
examine a cited witness i.e., D.W.1 and given up his
examination. On the other hand, the A.O. got examined D.W.1.
D.W.1 claimed to have witnessed the conversion between A.O.
and P.W.1 prior to the date of trap. His evidence is that he is
the Junior Assistant in Zilla Parishad High School, Ch.N.
Agraharam. During January, 1998 to April, 2001 he worked as
Junior Assistant in the MEO Office, Koyyuru. His seat and MEO
seat were in one room. On 19.04.2000 he was in the office when
P.W.1 visited the office. The distance between his seat and A.O.
seat was five feet. P.W.1 came with two leave applications. The
A.O. instructed P.W.1 to get medical certificate for the said leave
period. A.O. also asked P.W.1 about the borrowed amount from
him as he encahsed five months salary. P.W.1 replied that he
will repay the borrowed amount. He heard the conversation
between A.O. and P.W.1 from his seat. P.W.1 handed over the
pay bill and casual leave applications to him by leaving office. It
was in between 2-00 p.m. to 3-00 p.m.
23) The prosecution impeached his testimony on the
ground that he is deposing false to help A.O. At the outset,
without furnishing any reason whatsoever, the prosecution could
give up the examination of him as a prosecution witness. In
such circumstances, nothing prevented A.O. to examine D.W.1
in support of his defence. The facts and circumstances are such
that the conduct of P.W.1 was not above board.
24) In my considered view, the findings recorded by the
learned Special Judge were on reasonable basis. When there
was no probability that the services of P.W.1 will not be
regularized even in the event of non-sanctioning of leave, the
allegation that A.O. demanded P.W.1 to pay bribe of Rs.1,000/-
so that his services will be regularized cannot stands to any
reason. A.O. was the officer, who conducted enquiry against
P.W.1 and he exonerated P.W.1 of the charges. He
recommended to process the salary of P.W.1 for the absent
period also. Though there was no literal order on the leave
application of P.W.1 covering the period, but even there was no
such order about another leave spell of August, 1999.
25) Having regard to the above, this Court is of the
considered view that the findings recorded by the learned
Special Judge disbelieving the case of the prosecution cannot be
said to be unreasonable. In my considered view, the learned
Special Judge rightly extended benefit of doubt to A.O. and
rightly found him not guilty. Hence, I do not find any ground to
interfere with the judgment of the learned Special Judge.
26) In the result, the Criminal Appeal is dismissed.
27) The Registry is directed to forward the record along
with copy of the judgment to the trial Court, on or before
05.01.2024.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 28.12.2023.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.37 OF 2008
Note:
The Registry is directed to forward the record
along with copy of the judgment to the trial
Court, on or before 05.01.2024.
Date: 28.12.2023
PGR
