The State Of Ap Rep By Its Spl Pp ... vs Sri Juthiga Murali Krishna, ...
2023 Latest Caselaw 1078 AP

       THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

               CRIMINAL APPEAL NO.1016 OF 2007

JUDGMENT:-

      This is a Criminal Appeal filed by the State, being represented

by the Inspector of Police, Anti-Corruption Bureau, Eluru Range,

Eluru, challenging the judgment, dated 13.02.2007 in C.C.No.1 of

2003, on the file of Special Judge for SPE & ACB Cases, Vijayawada

(hereinafter will be referred to as "Special Judge"), where under the

learned Special Judge, found the respondents herein i.e., Accused

Officers ("A.O.1 and A.O.2" for short) not guilty of the charges

under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption

Act, 1988 ("P.C. Act" in short) and acquitted them under Section

248(1) of the Code of Criminal Procedure ("Cr.P.C." for short).

2) The parties to this Criminal Appeal will hereinafter be

referred as described before the trial Court for the sake of

convenience.

3) The case of the prosecution, in brief, according to the

charge sheet filed before the Court below is as follows:

(i) One Sri Katakam Venkata Subba Rao S/o

Suryaranarayana, (P.W.1) is resident of Tanuku, who intended to

open a seed shop, on 22.03.2002 went to the office of A.O.1 and

produced the relevant documents and required Government challan

before him and expressed his intention to open a seed shop and

requested him to issue a licence to open the said shop, for which

A.O.1 demanded him bribe amount of Rs.5,000/- for doing the

official favour and also Rs.1,000/- as bribe on behalf of A.O.2 and

further informed him that unless they were bribed, they will not

issue the said licence and took P.W.1 to A.O.2 and repeated his

demand and on that both directed P.W.1 to come to their office with

the bribe amount on 27.03.2002 morning. As P.W.1 was not willing

to pay the demanded bribe amount, he proceeded to the office of

P.W.5 and presented Ex.P.1, who, after observing necessary

formalities, registered the same and investigated into.

(ii) On 27.03.2002 at about 11-50 a.m., both the Accused

Officers were successfully trapped by P.W.5 when they further

demanded and accepted Rs.5,000/- and Rs.1,000/- respectively

from P.W.1 at the office of A.O.2. When S.C. solution test was

conducted to their hand fingers, it proved positive so also their

inner lining shirt pockets. Then, the Dy.S.P., seized the tainted

amount, shirts, washings and the relevant record and examined

witnesses and as per his instructions P.W.7 made further

investigation and submitted draft final report to the D.G., A.C.B.

(iii) The Government of Andhra Pradesh being the competent

authority to remove both A.O.1 and A.O.2 from service, issued

G.O.Ms.No.414 and 415 dated 21.10.2002 of Agriculture and

Cooperation (Vigilance I) Department. Hence, the charge sheet.

4) The learned Special Judge for SPE & ACB Cases,

Vijayawada, took cognizance of the case under Sections 7 and

13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988. After

complying necessary formalities under Section 207 of Cr.P.C., the

Court below framed charges under Sections 7 and 13(1)(d) r/w

13(2) of Prevention of Corruption Act, 1988 against A.O.1 and A.O.2

and explained the same to them in Telugu, for which they pleaded

not guilty and claimed to be tried.

5) In order to prove the guilt against A.O.1 and A.O.2, on

behalf of the prosecution P.W.1 to P.W.7 were examined and Ex.P.1

to Ex.P.16 were marked and further M.O.1 to M.O.17 were marked.

After closure of the evidence of the prosecution, A.O.1 and A.O.2

were examined under Section 313 of Cr.P.C. with reference to the

incriminating circumstances appearing in the evidence let in, for

which they denied the same. A.O.1 stated that in respect of issuing

licence for seed shop, he has no role to play and it is exclusively

within the jurisdiction of Joint Director of Agriculture, Eluru. A.O.1

was not competent either to receive the application or to process it.

He also stated that P.W.1 suddenly thrust some amount in his

pocket though he was protested. A.O.2 stated that even he is not a

recommending authority for issuing licence for seed shop. He never

demanded or accepted any bribe. P.W.1 forcibly thrust some

amount in his shirt pocket in spite of his protests. Ex.D.1 was

marked on behalf of the A.O.1 and A.O.2.

6) The learned Special Judge for SPE & ACB Cases,

Vijayawada, on hearing both sides and on considering the oral as

well as documentary evidence, found the A.O.1 and A.O.2 not guilty

of the charges framed against them and accordingly, acquitted

them under Section 248(1) of Cr.P.C. Felt aggrieved of the same,

the State, being represented by the Inspector of Police, Eluru

Range, Eluru, filed the present Criminal Appeal.

7) Now, in deciding this Criminal Appeal, the points that

arise for consideration are as follows:

(1) Whether the prosecution before the Court below proved the pendency of the official work of P.W.1 with A.O.1 and A.O.2 prior to the trap and on the date of trap as alleged?

(2) Whether the prosecution proved before the Court below that on 22.03.2002 and 27.03.2002 both A.O.1 and A.O.2 demanded P.W.1 to pay bribe of Rs.5,000/- to A.O.1 and Rs.1,000/- to A.O.2 and accordingly, accepted the amount from P.W.1?

(3) Whether the prosecution has proved the charges as above against A.O.1 and A.O.2 beyond reasonable doubt?

(4) Whether there are any grounds to interfere with the judgment of acquittal delivered by the learned Special Judge for SPE & ACB Cases, Vijayawada?

Point Nos.1 to 4:-

8) Smt. A. Gayathri Reddy, learned Standing Counsel for

ACB and Special Public Prosecutor, appearing for the Appellant,

would contend that the learned Special Judge uphold the case of the

prosecution that A.O.1 and A.O.2 had the power to process the

application of P.W.1 and the learned Special Judge negatived the

contention of the respondents herein. P.W.1 for obvious reasons

turned hostile to the case of the prosecution. However, the amount

of Rs.5,000/- and Rs.1,000/- were recovered from the pockets of

A.O.1 and A.O.2 respectively after successful trap and it is

supported by the evidence of mediator and the trap laying officer

and the chemical tests that were conducted to both hand fingers

and inner pockets of shirts of A.O.1 and A.O.2 yielded positive

results. In the post-trap A.O.1 and A.O.2 admitted the guilt.

During the course of trial, P.W.1 turned hostile and deposed that he

thrust the amount into the pockets of A.O.1 and A.O.2. He turned

hostile to support the defence of A.O.1 and A.O.2 for the reasons

best known to him. So, A.O.1 and A.O.2 dealt with tainted amount

and the learned Special Judge did not consider to draw the

presumption under Section 20 of the P.C. Act, as such, appeal is

liable to be allowed by convicting A.O.1 and A.O.2.

9) Ms. Mounika, learned counsel, representing the learned

counsel for the respondents, would contend that the prosecution

failed to prove the demand prior to the trap and on the date of trap

and acceptance of the amount by A.O.1 and A.O.2. Though A.O.1

and A.O.2 were not capable of issuing licence, P.W.1 thrust the

amount into their pockets and he categorically testified this in the

chief examination. When P.W.1 was going out, in the meantime,

A.C.B. officials rushed into the room of A.O.1 and A.O.2. There was

no chance for A.O.1 and A.O.2 to chase P.W.1. The learned Special

Judge rightly ordered an acquittal and the appeal is liable to be

dismissed.

10) The case of the prosecution that both A.O.1 and A.O.2

as on the date of offence were public servants is not in dispute.

Apart from this, the prosecution to prove a valid sanction for

prosecution of both the A.O.1 and A.O.2 under Section 19 of the

P.C. Act for the charges framed, examined P.W.6, the Section

Officer, Agriculture and Cooperation Department, A.P. Secretariat.

Through him Ex.P.14 and Ex.P.15, sanction orders, were marked.

The Court below found positive with regard to the fact that the

prosecution obtained a valid sanction to prosecute A.O.1 and A.O.2.

The learned Special Judge upheld the contention of the prosecution.

The said findings are not under challenge in this appeal by the

respondents at the time of hearing of the appeal.

11) P.W.1 is the defacto-complainant, who set the criminal

law into motion alleging that A.O.1 and A.O.2 demanded bribe of

Rs.5,000/- for A.O.1 and Rs.1,000/- to A.O.2. Through him Ex.P.1

was marked. Though the prosecution examined P.W.2, the Attender

in the Office of Assistant Director of Agriculture, as a witness for

conducting chemical test to both hands of A.O.1 and A.O.2, but, he

did not support the case of the prosecution. The prosecution

examined P.W.3, who was the Junior Assistant in the Office of

Assistant Director of Agriculture to prove the pendency of the

official favour. P.W.4 was one of the mediators to pre-trap and

post-trap proceedings. P.W.5 was the trap laying officer. P.W.7 was

the Inspector, A.C.B., who assisted P.W.5 in the investigation.

12) Firstly, I would like to deal with as to the pendency of

the official favour claimed by P.W.1 with A.O.1 and A.O.2 as

alleged. As seen from the deposition of P.W.1, his evidence on

certain crucial aspects were not supported by the contents of

Ex.P.1. He raised allegations against A.O.1 and A.O.2 in Ex.P.1 that

on 22.03.2002 A.O.1 and A.O.2 demanded for bribe, but in the

evidence, he deposed that after presenting his application at 12-00

noon, he went to the shop of one Grandhi Kantha Rao of Tanuku,

whose Accountant informed him that in order to get licence to do

seed business, he has to spend some amount in the office of

Agricultural Officer. Then, on enquiry, the Accountant told that he

has to pay the amount for issuance of licence for the said business.

Then, he met A.O.1, who informed him that issuance of licence for

seed shop is not within his hands and he has to approach the Joint

Director. He also told him that even if he spends amount in the

Office of Joint Director, Agriculture, his work will not be done.

Then, he came out and on the advice of one of his relatives, he

went to the Office of A.C.B., Eluru, where he presented Ex.P.1. It is

no doubt true that P.W.1 turned hostile to the case of the

prosecution. But, as seen from the evidence of P.W.3, he

categorically deposed that he knows P.W.1, who came to their office

three or four days prior to the date of trap with regard to issuance

of seeds licence and met A.O.1. P.W.3 was directed by A.O.1 to

type Form-A certificate by furnishing Plant Production Diary which is

with him. Accordingly, he typed Form-A after copying down the

same from page 93 of the said Diary. Subsequently, he came to

know that A.O.1 and A.O.2 were trapped.

13) It is to be noticed that though literally Ex.P.1 alleges

that A.O.1 and A.O.2 demanded bribe for issuance of licence, but, in

view of the evidence let in, especially, the evidence of P.W.3 and

P.W.7, the Inspector, A.C.B., it is clear that in order to get seeds

licence to open a shop, one has to submit the application before

Mandal Agriculture Officer and on his recommendation only the Joint

Director will issue the licence. He enquired in the Office of the Joint

Director, Agriculture, S. Rama Mohana Rao, Senior Assistant, who

issued Ex.P.16 with regard to the process. It is to be noticed that

the prosecution did not examine the said Rama Mohana Rao

because he died, but, Ex.P.16 was brought in evidence through the

investigating officer. As there was no chance for the prosecution to

examine the said Rama Mohan Rao, Ex.P.16 can be considered. So,

Ex.P.16 is considered, the procedure is very clear that application to

be submitted in the Office of A.O.1 and A.O.2 and A.O.1 and A.O.2

were supposed to process the same to recommend to the Joint

Director of Agriculture, Eluru. Having gone through the evidence

available on record, I am of the considered view that literally A.O.1

and A.O.2 were not the issuing authority for the licence, but, they

were the officials, who were supposed to process the application of

P.W.1. Insofar as this aspect is concerned, the prosecution has

categorically established before the Court below the pendency of

the official favour and the said aspect was upheld by the learned

Special Judge.

14) Now coming to the crucial aspects in the case of the

prosecution that on the date of application made by P.W.1 on

22.02.2002, A.O.1 and A.O.2 demanded P.W.1 to pay bribe of

Rs.5,000/- to A.O.1 and Rs.1,000/- to A.O.2, Ex.P.1 cannot be read

in substantive evidence because P.W.1 turned hostile to the case of

the prosecution. So, the prosecution got declared him as hostile

and during the course of cross examination by the learned Special

Public Prosecutor, nothing favourable was elicited in support of the

case of the prosecution. Virtually, there was no evidence

whatsoever to say that A.O.1 and A.O.2 on 22.03.2002 demanded

P.W.1 to pay bribe of Rs.5,000/- to A.O.1 and Rs.1,000/- to A.O.2.

15) Coming to the demand and acceptance of bribe as

alleged by the prosecution on the date of trap, P.W.1 did not

support the case of the prosecution. In this regard, the evidence of

P.W.1 is totally destroying the case of the prosecution. He deposed

in this regard that on the date of trap, he went to the office of A.O.1

and learnt that he is in the office of A.O.2. Then, he went to the

office of A.O.2. One person was found there and after that person

came out, he entered into the room. When he asked A.O.1 about

the licence, A.O.1 told that he is not issuing licence authority. He

asked A.O.1 to help him, A.O.1 told him that already he informed to

him that he is not able to give any licence. A.O.1 told him that he

has to get the licence from Eluru Office. Then, P.W.1 gave

Rs.6,000/- to A.O.1 and asked him to see that licence is to be

given. A.O.1 by saying that it is not possible for him to give licnece

returned back the tainted amount. Then, P.W.1 picked up 2 x 500/-

notes from out of Rs.6,000/- and kept the remaining amount of

Rs.5,000/- in the pocket of A.O.1 and gave the remaining amount

of Rs.1,000/- to A.O.2 by keeping the same in his pocket. Then,

A.O.2 returned the amount to him. Then, P.W.1 shook the hands of

A.O.2 and again thrust the amount into his pocket. Then, he came

out and relayed the pre-arranged signal and that the ACB officials

came there and asked to wait outside. At about 6-00 p.m., he was

again called by the Dy.S.P. into the office room of A.O.2 and he was

enquired by the Dy.S.P. as to what transpired and he disclosed the

same.

16) As seen from the evidence of P.W.1, even he did not

support the case of the prosecution with regard to the allegations

against A.O.1 and A.O.2 as to the demand made by them to P.W.1

on the date of trap and acceptance of the bribe amount. There is

no dispute as seen from the evidence of mediator and trap laying

officer that when both the hands of A.O.1 and A.O.2 were tested

they yielded positive results. There is also no dispute that the

amount was recovered from the physical possession of A.O.1 and

A.O.2. It is basing on this circumstance that A.O.1 and A.O.2 dealt

with tainted amount, the prosecution sought to prove the guilt

against A.O.1 and A.O.2.

17) It is to be noticed that basically the prosecution did not

prove the foundational facts i.e., demand of A.O.1 and A.O.2 prior

to the date of trap and on the date of trap and acceptance of the

bribe amount by them in the manner as alleged. The Hon'ble

Supreme Court in Neeraj Dutta v. State (Government of NCT of

Delhi)1 categorically held that to raise a presumption under Section

20 of the P.C. Act, the prosecution has to prove the foundational

facts. It is no doubt true that the prosecution did not prove the

foundational facts. In my considered view, the only circumstance on

which the prosecution sought to prove the guilt is the recovery of

the amount from the pockets of A.O.1 and A.O.2.

18) Now, I would like to deal with whether it is safe to rely

upon the solitary circumstance to convict A.O.1 and A.O.2. It is to

be noticed that P.W.1 is not reliable witness. He is amenable

witness. Simply because he did not support the case of the

prosecution, it cannot be held that purposefully P.W.1 deposed

false. In Ex.P.1, he alleged that A.O.1 and A.O.2 were the

authorities to issue licence which proved to be false by virtue of the

evidence let in by the prosecution. It is to be noticed that there

was a practice in the A.C.B. Cases by the investigating officers to

enquire the complainant during the post-trap as to what happened

and also to enquire the Accused Officers as to what transpired

between him and the complainant. As seen from the mediators

report i.e., post-trap proceedings, it is alleged that when the trap

laying officer asked A.O.1 and A.O.2 as to what happened between

1 (2022) SCC OnLine SC 1724

them and P.W.1, they disclosed that they demanded bribe of

Rs.5,000/- and Rs.1,000/- respectively from P.W.1 prior to the date

of trap and also on the date of trap and accepted the bribe amount.

Absolutely, it is nothing but confession. The so-called version of

A.O.1 and A.O.2 is hit under the provisions of Indian Evidence Act.

The natural tendency of A.O.1 and A.O.2 in the given situation

would be to disclose something so as to say that they are innocents.

Here it is very doubtful as to whether A.O.1 and A.O.2 gave such

confession during post-trap. So, the so-called version of A.O.1 and

A.O.2 in the post-trap is hit under the provisions of Section 25 of

the Indian Evidence Act. So, if it is excluded from consideration,

there remained nothing in the post-trap as to the spontaneous

version of A.O.1 and A.O.2. Having regard to the above, this Court

is of the considered view that it is unsafe to rely upon the solitary

circumstance as above.

19) Admittedly, the facts and circumstances and the

evidence on record is such that P.W.1 after thrusting the amount

with A.O.1 and A.O.2, came out and immediately relayed the signal

and then within no time, A.C.B. officials rushed into the chamber of

A.O.2. So, even there would not have been any time for A.O.1 and

A.O.2, according to the evidence on record to raise hue and cry or

to chase P.W.1 when he thrust the amount into the pockets.

Having regard to the overall facts and circumstances, this Court is

of the considered view that the fact that the amount was recovered

from physical possession of A.O.1 and A.O.2 is not sufficient to

convict A.O.1 and A.O.2. In my considered view, as the foundational

facts were not proved by the prosecution, Section 20 of the P.C. Act

has no application to the case on hand. Even otherwise, the

learned Special Judge looked into the defence of A.O.1 and A.O.2

and made observations that A.O.1 and A.O.2 had no time to

respond in proper manner after P.W.1 thrust amount because in the

meantime, A.C.B. officials rushed into the chamber of A.O.2. As this

Court already pointed out incorporating the confessional part of

A.O.1 and A.O.2, which is hit under the provisions of the Indian

Evidence Act, shows any amount of doubt about the bonafidies of

post-trap proceedings.

20) In the light of the above, I am of the considered view

that the learned Special Judge for SPE & ACB Cases, Vijayawada,

rightly appreciated the evidence on record, as such, there are no

grounds to interfere with the judgment of acquittal.

21) In the result, the Criminal Appeal is dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 23.02.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1016 OF 2007

Date: 23.02.2023

PGR