Andhra Pradesh High Court - Amravati
The State Of A.P., Rep. By ... vs B.Venkateswara Rao on 24 February, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1381 OF 2007
Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau, Range-III,
Vijayawada. .... Appellant
Versus
B. Venkateswara Rao,
Mandal Parishad Development Officer,
Tiruvur Mandal, Tiruvur,
Krishna District. .... Respondent
DATE OF JUDGMENT PRONOUNCED : 24.02.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wish to see
The fair copy of the judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
2
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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1381 OF 2007
% 24.02.2023
# Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau, Range-III,
Vijayawada. .... Appellant
Versus
B. Venkateswara Rao,
Mandal Parishad Development Officer,
Tiruvur Mandal, Tiruvur,
Krishna District. .... Respondent
! Counsel for the Appellant : Smt.A.Gayathri Reddy,
Learned Standing Counsel-
cum-Special Public Prosecutor
for ACB.
^ Counsel for the Respondent : Sri Marri Venkata Ramana,
Learned counsel.
< Gist:
> Head Note:
? Cases referred:
1. 1993 Supp (2) SCC 187
2. AIR 1974 SC 218
3. 1989 Supp (2) SCC 140
4. (1970) 3 SCC 772
5. (2022) SCC OnLine SC 1724
6. (2014) 13 SCC 55
7. (2015) 10 SCC 152
8. (2001) 1 SCC 691
This Court made the following:
3
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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1381 OF 2007
JUDGMENT:
This Criminal Appeal, under Section 378(1) and (3) of the
Code of Criminal Procedure, 1973 (for short, ‗the Cr.P.C'), is filed
by the State, being represented by Inspector of Police, Anti
Corruption Bureau (ACB), Range-III, Vijayawada through the
Standing Counsel for ACB and Special Public prosecutor
questioning the judgment in Calendar Case No.13 of 1999, dated
16.05.2005, on the file of the Court of Special Judge for SPE and
ACB Cases, Vijayawada (for short, ‗the Special Judge'), where
under the learned Special Judge found the Accused Officer (AO)
not guilty of the charges under Sections 7 and 13(1)(d) R/w.
Section 13(2) of the Prevention of the Corruption Act, 1988 (for
short, ‗the PC Act') and accordingly acquitted him of the charges
under Section 248(1) Cr.P.C.
2. The parties to this Criminal Appeal will hereinafter be
referred to 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 by Range Inspector-III, ACB, Vijayawada in Crime
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No.8/ACB-VJA/98, is that the AO viz., Battina Venkateswara Rao,
worked as Mandal Praja Parishad Development Officer i.e., Mandal
Development Officer of Tiruvur Mandal Parishad of Krishna
District. He is a ‗Public Servant' within the meaning of Section 2(c)
of the PC Act. LW.1 - U.V.Sesha Rao is a resident of Tiruvur
Village and Mandal of Krishna District. He is working as
Headmaster at Parishad Elementary School Nadim Tiruvur. Prior
to that, he worked as Headmaster in Mandal Praja Parishad
Elementary School (MPES), Suravaram Village of Tiruvur Mandal.
B. Venkateswara Rao, MPDO i.e., AO transferred LW.1 on
10.06.1997 vide his order in R.C.No.145/97-C, from MPES,
Suravaram to Nadim Tiruvur Elementary School as Headmaster.
Having relieved himself on 30.06.1997, LW.1 visited MPES Nadim
Tiruvur to join in the duty where he came to know that the orders
of MPDO were cancelled as such he was not allowed to join. Then,
LW.1 approached the Andhra Pradesh Administrative Tribunal at
Hyderabad (for short, ‗the Tribunal') with his grievance. The
Tribunal suspended the cancellation transfer order of LW.1, issued
by AO on 08.07.1997. Accordingly, LW.1 joined at MPES Nadim
Tiruvur and sent his joining report through registered post to the
AO on 11.07.1997. Thereafter, the Tribunal passed its final order
on 30.03.1998 vide orders in O.A. No.3871 of 1997 by quashing
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the cancellation transfer order issued by the MPDO on
29.06.1997. Then, LW.1 met the AO and represented him that he
sent a representation to him through registered post for giving
instructions to the concerned for handing over Headmaster charge
to him at Nadim Tiruvur MPES basing on the Tribunal order. AO
did not issue any instructions. Again, LW.1 met the AO at his
office on 06.04.1998 and requested him to give proper orders
basing on the final order of the Tribunal in O.A. No.3871 of 1997
and for the payment of his salary bills. Then, the AO demanded
LW.1 to pay Rs.5,000/- as bribe for passing an order for the
payment of his salaries and also for implementation of the final
order of the Tribunal in his favour. Then, LW.1 explained AO
about his inability for paying the bribe since he did not receive his
salaries and he was in troubles. AO did not hear him. Again, he
met the AO on 28.04.1998 at his house and repeated his request
to do justice to him. AO reiterated his earlier demand of bribe of
Rs.5,000/- and asked LW.1 to bring the demanded bribe of
Rs.5,000/- on 29.04.1998 and to pay him. As he was not willing to
pay the demanded bribe amount, he presented a written report to
LW.14, Range Inspector-III, ACB, Vijayawada on 28.04.1998 at
02:00 p.m. LW.14, after fulfilling necessary formalities, submitted
the same to Deputy Superintendent of Police (DSP), ACB,
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Vijayawada (LW.13) for taking further action. LW.13 - DSP,
registered the report of LW.1 as a case in Crime No.8/ACB-
VJA/98 on 29.04.2008 at 05:15 a.m. and took up further
investigation. On 29.04.1998 at about 09:45 a.m. LW.1 met the
AO at his residential quarter No.4-372 situated at Santhinagar in
Tiruvur and requested the AO to give necessary orders for his
continuation at Nadim Tiruvur Elementary School and also for the
payment of his pending salary bills. Then, AO asked LW.1 whether
he brought the demanded bribe amount of Rs.5,000/- or not. AO
further demanded him to pay the bribe amount. When LW.1
offered to pay the bribe of Rs.5,000/- to AO, he accepted the bribe
of Rs.5,000/- as illegal gratification other than the legal
remuneration with his right hand and kept the same on the bed
underneath the pillow. AO informed LW.1 that a favourable order
would be issued in favour of him soon.
4. The Scientific and Chemical Tests conducted on the right
hand fingers of AO proved positive. At the instance of AO, tainted
amount was recovered from the underneath the pillow placed on
the bed of AO. Serial numbers of the tainted amount were found
tallied with serial numbers of currency notes produced by LW.1
before the mediators (LW.10 and LW.11) on 29.04.1998 during the
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pre-trap proceedings. Connected records were seized. The AO
failed to offer his explanation to the notice, dated 01.08.1998.
Government of Andhra Pradesh, being the competent authority to
remove AO from service vide G.O.Ms.No.188 of Panchayat Raj and
Rural Development, Estt.VII, dt.30.04.1999, accorded sanction to
prosecute the AO for the offences under Sections 7 and 13(1)(d)
R/w.13(2) of the PC Act.
5. The learned Special Judge took cognizance of the case under
the above provisions of law. The learned Special Judge, after
appearance of the accused and after completing the necessary
formalities under Section 207 Cr.P.C and by following the warrant
procedure, framed charges under Sections 7 and 13(1)(d)
R/w.13(2) of the PC Act against the AO, read over and explained
the same to him in Telugu for which he pleaded not guilty and
claimed to be tried.
6. To bring home the guilt of the AO, the prosecution before the
Court below, examined PWs.1 to 13 and got marked Exs.P-1 to
P-35 and during the course of cross-examination of PW.1 Ex.D-1
was marked.
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7. After closure of the evidence of the prosecution, the AO was
examined under Section 313 Cr.P.C with reference to the
incriminating circumstances appearing in the evidence let in by
the prosecution, for which he denied the same and got filed a
written statement contending, in substance, that on the date of
trap, PW.1 came to his quarter and when he was about to give the
tainted amount forcibly but he (AO) pushed it with his right hand,
which resulted the tainted amount fell on blanket which is on the
cot and when he (AO) raised cries without hearing his words, PW.1
hurriedly left. So, he never demanded or accepted the bribe
amount from PW.1. The transfer order was cancelled. With the
help of ACB, PW.1 filed a false case against him. In support of the
defence, AO examined DWs.1 and 2 and got marked Ex.X-1 during
the evidence of DW.1.
8. The learned Special Judge, on hearing both sides and after
considering the oral and documentary evidence on record, gave
findings that the Accused Officer was a Public Servant within the
meaning of Section 2(c) of the PC Act and there was a valid
sanction to prosecute the AO. The learned Special Judge with
regard to the allegations of the prosecution under Sections 7 and
13(1)(d) R/w.13(2) of the PC Act, having given findings that the
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prosecution has proved the demand of bribe on 06.04.1998 and
demand and acceptance of bribe by the AO on 29.04.1998 but
held that prosecution failed to prove the demand on 28.04.1998.
The learned Special Judge further gave finding that the AO
probabilized his defence theory as such acquitted the Accused
Officer.
9. The State, having felt aggrieved of the judgment of the Court
below in C.C. No.13 of 1999, filed the present Criminal Appeal
challenging the judgment of acquittal.
10. Now, in deciding this Criminal Appeal, the points that arise
for consideration are as follows:
1) Whether the prosecution before the Court below has
proved that the AO was a public servant within the
meaning of Section 2(c) of the PC Act and whether the
prosecution obtained a valid sanction to prosecute the
AO for the charges framed?
2) Whether the prosecution has proved before the
Court below that the official favour in respect of the
work of PW.1 was pending with AO as on 06.04.1998,
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28.04.1998 and 29.04.1998 in the manner as alleged
by the prosecution?
3) Whether the prosecution before the Court below has
proved that on 06.04.1998, 28.04.1998 and
29.04.1998 AO demanded PW.1 to pay bribe of
Rs.5,000/- and in pursuance of the demand, accepted
the amount from PW.1 and as such whether the
prosecution proved the charges framed against the
accused beyond reasonable doubt?
4) Whether there are any grounds to interfere with the
judgment of acquittal of the learned Special Judge?
11. POINT Nos.1 to 4: Insofar as Point No.1 is concerned, the
findings of the learned Special Judge that AO was a public servant
within the meaning of Section 2(c) of the PC Act and the
prosecution obtained a valid sanction to prosecute the accused are
not at all challenged before this Court by either side. However, this
Court considered the evidence available on record. Absolutely,
there is no dispute, whatsoever, that AO was working as Mandal
Parishad Development Officer, Tiruvur Mandal, Krishna District as
on 06.04.1998, 28.04.1998 and 29.04.1998 and he was drawing
salary from the account of the Government. The said fact was not
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in dispute. Apart from this, prosecution examined PW.11 - Section
Officer to prove the sanction under Ex.P-30. A perusal of Ex.P-30
sanction order vide G.O.Ms.No.188, dated 30.04.1999, goes to
show that the sanctioning authority, having considered the
material sent by the ACB, passed a speaking order according
permission to ACB to prosecute the AO under Sections 7 and
13(1)(d) R/w.13(2) of the PC Act. There remained nothing in the
cross-examination part of PW.1 to disbelieve his testimony. PW.11
testified that he is personally acquainted with the file relating to
Ex.P-30. In my considered view, the prosecution proved a valid
sanction and the learned Special Judge regarding this point gave
findings with valid reasons. The above said findings given by the
learned Special Judge are not under challenge in this Appeal
either by the appellant or by the respondent (AO) during the
course of hearing of the Appeal.
12. Now, I would like to deal with Point Nos.2 to 4. Smt. A.
Gayathri Reddy, learned Standing Counsel-cum-Special Public
Prosecutor, appearing for the appellant-State, canvassed the case
of the prosecution first and she would contend further that there
was no dispute about the factum of request application of PW.1
under Ex.P-2. AO issued the proceedings transferring PW.1 to
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Nadim Tiruvur. PW.1 relieved himself on the evening of
30.06.1997 and when he tried to join at the place, he was not
allowed to join. In fact, PW.1 was transferred to a post which was
falling vacant on 30.06.1997. PW.1 was not allowed to join there
on the ground that the transfer order was cancelled on
29.06.1997. Felt aggrieved of the transfer cancellation order, PW.1
approached the Tribunal and obtained suspension of the order
dated 29.06.1997, cancelling the transfer order of PW.1. Having
got a favourable order, PW.1 reported for his duties at Nadim
Tiruvur. He was not handed over any charge and he was not
entrusted with any duties. However, he was going to the school
regularly. He was submitting his representations duly to allow him
to take charge and also praying for processing of his salary bills.
Ultimately, the Tribunal quashed the transfer cancellation order of
AO. Then, PW.1 communicated the same to AO in writing on
04.04.1998 and further personally met the AO on 06.04.1998 to
allow him to continue his work by handing over charge and also
for processing his salary bills. Then, the AO demanded the bribe.
In spite of the cogent evidence adduced by the prosecution, the
learned Special Judge, erroneously and on the un-reasonable
grounds, extended an order of acquittal. Prosecution examined
PW.2, the in-charge Headmaster, PW.3, PW.4, PW.5 and PW.6 to
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prove the official favour pending with AO in respect of the work of
PW.1. Even prosecution examined PW.9, the then Mandal Praja
Parishad President, Tiruvur to prove the facts. The learned Special
Judge did not give positive findings by looking into the evidence in
this regard in respect of the official favour of PW.1 to be dealt with
by the AO as on the date of trap and prior to that. Simply because
the AO filed a Writ Petition before the erstwhile High Court of
Andhra Pradesh at Hyderabad and obtained an order of status-
quo, with regard to the final orders passed by the Tribunal, it
cannot be held that official favour was not pending. In fact, even
as on the date PW.1 was working in Nadim Tiruvur only. His
salary bills were pending since long. She would further contend
that the learned Special Judge gave categorical findings that the
prosecution clearly proved the demand dated 06.04.1998 made by
AO to PW.1 to pay bribe of Rs.5,000/- and further proved the
demand dated 29.04.1998 and acceptance of bribe by AO from
PW.1 during the post trap proceedings. On erroneous reasons, the
learned Special Judge gave findings that the prosecution did not
prove the demand dated 28.04.1998. Without looking into the
ground realities and with unreasonable findings, the learned
Special Judge believed the defence of the accused regarding the
alleged thrusting theory. The judgment of the learned Special
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Judge is not sustainable under law and facts. The conduct of AO
is quietly evident from the evidence of the prosecution witnesses
that when the subordinates of AO put up a note about the request
application of PW.1, AO used to write it as lie over. She would
further submit that the evidence on record is sufficient to convict
the accused for the charges as such Appeal is liable to be allowed
so as to convict the AO.
13. Sri Marri Venkata Ramana, learned counsel appearing for
the respondent (AO), would contend that to succeed in the case of
the prosecution with regard to the charges under Sections 7 and
13(1)(d) R/w.13(2) of the PC Act, prosecution should prove the
pendency of the official favour in respect of the work of PW.1 and
further to prove the so called demands, dated 06.04.1998,
28.04.1998 and 29.04.1998. Though PW.1 got suspension of
cancellation of his transfer order, dated 29.06.1997, as admitted
by him in cross-examination, there was no order from his
superiors asking him to join at Nadim Tiruvur. Without there
being any order he opted to join there. Learned counsel would
further contend that the so called demands dated 06.04.1998,
28.04.1998 and 29.04.1998 are all false. As on the alleged dates
already AO filed a Writ Petition and got an interim order under
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Ex.D-1 directing the status-quo. So, as the matter was already
subjudice before the High Court in Writ Petition, it cannot be held
any official favour in respect of the work of PW.1 was pending with
AO. Insofar as the alleged demands dated 06.04.1998, 28.04.1998
and 29.04.1998 are concerned AO denied the same during the
course of trial. However, the findings given by the learned Special
Judge that prosecution proved the demand dated 06.04.1998 and
further demand dated 29.04.1998 and that AO accepted the bribe
amount from PW.1 are not at all tenable. These findings given by
the learned Special Judge are liable to be set-aside by this Court
even in dealing with the Appeal against the acquittal. With regard
the demand dated 28.04.1999 the learned Special Judge rightly
held that on that particular day AO was at Vijayawada attending a
meeting. There were findings that PW.1 due to his enthusiasm and
to strengthen the allegations under Ex.P-1, invented the theory of
demand dated 28.04.1998. AO successfully dislodged the
presumption under Section 20 of the PC Act and spontaneous
explanation in the post trap proceedings was duly considered by
the learned Special Judge and the learned Special Judge believed
the thrusting theory as projected by AO with valid reasons.
Though there were adverse findings against AO with regard the
demands dated 06.04.1998 and 29.04.1998 but AO could
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successfully dislodge the presumption under Section 20 of the PC
Act with consistent evidence. He would further submit that in a
case under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act, the
prosecution should stand on its own legs. In support of the
contention, he would rely upon the decisions of the Hon'ble Apex
Court in Shantilal Kashibhai Patel v. State of Gujarat1 and
Darshan Lal v. The Delhi Administration2. While concluding,
he would further submit that the AO was retired even by the time
of judgment of the trial Court and now he might be aged around
80 years suffering with serious health problems as such the Court
may take into consideration the above while adjudicating the
issue.
14. Before going to appreciate the contentions of both the
parties, I would like to refer here certain findings given by the
learned Special Judge in the impugned judgment. It is a fact that
the learned Special Judge did not look into the aspect in proper
perspective as to whether the official favour in respect of the work
of PW.1 was pending with AO as on the date of trap and prior to
the trap. Apart from this, the learned Special Judge while dealing
with the contention of the prosecution with regard to the
1 1993 Supp (2) SCC 187
2 AIR 1974 SC 218
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allegations of demand of bribe 06.04.1998 analyzed the evidence
on record at Para Nos.42, 43, 44, 45, 46, 47 of judgment and
concluded at Para No.48 as follows:
"48. For the above reasons, I hold that the
prosecution established the demand dated 6-4-1998
from the evidence of P.W.1, which is consistent,
corroborate with Ex.P-1, Ex.P-4 and Ex.P-7 164 Cr.P.C.
statement which was recorded by the Magistrate at the
earliest point of time."
15. Now, coming to the allegations of the prosecution with
regard to the demand, dated 28.04.1998, the findings are at Para
No.55 of judgment and it is appropriate to refer here the substance
of the findings:
"55....................On scrutiny of the evidence of P.W.1
and for the above reasons, it appears to me that since
A.O filed writ petition for quashing the orders of the
Honourable A.P. Administrative Tribunal and moved
the application for interim orders to stall the
proceedings of the Tribunal, there is every possibility
that in order to create some hurdles or threat and
further in order to strengthen his Ex.P-1 report P.W.1,
out of enthusiasm, make a mention in Ex.A-1 that A.O.
demanded bribe amount when he approached him."
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16. With regard to the allegations of demand and acceptance of
bribe during the post trap on 29.04.1998, the learned Special
Judge analyzed the evidence at Para Nos.56, 57, 58, 59, 60, 61,
62, 63 and 64 of judgment and upheld the contention of the
prosecution. The conclusion with regard to the demand dated
29.04.1998 during the post trap and acceptance of the bribe by
AO at Para No.64 is as follows:
"64. ..............There is ample evidence to show what
was recovered from A.O. is illegal gratification, which
he was not legally entitled from P.W.1 and he
accepted the same for showing an official favour of
processing the issuance of salary bill and for giving
posting orders to P.W.1."
17. Ultimately, while dealing with the presumption under
Section 20 of the PC Act, looking into the thrusting theory, the
learned Special Judge upheld the contention of AO. Basically the
accurate findings of the learned Special Judge with regard to the
demand dated 06.04.1998 and further demand on 29.04.1998 and
acceptance of bribe does not reconcile with the findings while
upholding the case of AO regarding the thrusting theory. The
prosecution challenged the findings of the learned Special Judge
extending an order of acquittal. Even the learned counsel for the
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respondent (AO) questioned the findings of the learned Special
Judge in upholding the case of the prosecution with regard to the
demands dated 06.04.1998 and 29.04.1998 and consequent
acceptance of bribe.
18. This is an Appeal against acquittal. The Hon'ble Supreme
Court repeatedly held in various decisions as to how the Appeal
against an acquittal has to be dealt with. The Hon'ble Supreme
Court in Lalit Kumar Sharma and others v. Superintendent
and Remembrancer of Legal Affairs, Government of West
Bengal3 held that the power of the appellate Court to review
evidence in Appeals against acquittal is as extensive as its power
in Appeals against convictions but that power is with a note of
caution that appellate Court should be slow in interfering with the
orders of acquittal unless there are compelling reasons to do so.
Further, in Lalit Kumar Sharma (3 supra), the Hon'ble Supreme
Court referred the findings in Mathai Mathews v. State of
Maharashtra4 to the effect that ―if a finding reached by the trial
Judge cannot be said to be an unreasonable finding, then the
appellate Court should not disturb that finding even if it is possible
3 1989 Supp (2) SCC 140
4 (1970) 3 SCC 772
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to reach a different conclusion on the basis of the material on
record‖.
19. Keeping in view of the above, the only course left open to the
Court is to re-appreciate the entire evidence on record and to
decide the matter.
20. PW.1 is the de-facto complainant. PW.2 is the then in charge
Headmaster in Nadim Tiruvur. PW.3 is the then Junior Assistant
in Tiruvur MPDO Office. PW.4 is the then MEO of Tiruvur Mandal.
PW.5 is the then Junior Assistant in Tiruvur Mandal Praja
Parishad Office. Prosecution examined PW.6, the Secondary Grade
Teacher, Nadim Tiruvur Elementary School, who did in charge
duties as on 30.06.1997. Prosecution further examined PW.9, the
then MPP President. Prosecution examined the above witnesses to
prove that the official favour in respect of the work of PW.1 was
pending with AO.
21. Coming to the testimony of PW.1 on material aspects, his
evidence is that during the year 1997-98 he worked as
Headmaster in Mandal Praja Parishad Elementary School,
Suravaram Village of Tiruvur Mandal. He know AO. AO transferred
him on 10.06.1997 from Survaram Elementary School to Nadim-
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Tiruvur Elementary School. He was directed to join as per the
orders of transfer on 30.06.1997 after retirement of one
R. Nagabhushanam, who was working by then. So, he was relieved
on 30.06.1997 and went to Nadim-Tiruvur Elementary School in
order to join, where he came to know that his earlier order was
cancelled by AO and he was not allowed to join. He met the AO
and enquired the reason for cancellation of the transfer order. AO
did not give proper reason. He approached the Tribunal with
grievance and the Tribunal suspended the cancellation of transfer
order issued by AO. The said interim order was dated 08.07.1997.
Then, he joined at MPES, Nadim Tiruvur. By then, LW.6 -
Jonnalagadd Durga Bhavani was in charge Headmistress. She
refused to hand over charge since she did not receive any
instructions from her superior authorities. However, on joining, he
sent his joining report through registered post to AO. After joining
in duty, he was not allowed to sign in the attendance register by
the in charge headmistress. Then, he opened a new attendance
register and used to sign in the register regularly, whenever he
attended the school. Accordingly, he attended the school for about
10 months. Every month he used to prepare his salary bills and
submit the same to the AO, which were not approved and as such
his salary was not paid. On 30.03.1998, the Tribunal passed its
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final order quashing the cancellation transfer order issued by AO.
On 06.04.1998, he met the AO at his office and requested AO to
give proper orders by virtue of the orders of the Tribunal and for
payment of his arrears of salary, AO demanded bribe of Rs.5,000/-
for passing orders for payment of the salary and for
implementation of the official orders of the Tribunal, failing which
he would approach the High Court against the orders of the
Tribunal. He expressed his inability to do so but AO did not hear
him. When he met AO on 28.04.1998, AO again demanded him
Rs.5,000/-. As he was not willing to do so, he approached the ACB
on the same day. Ex.P-1 is his report. Ex.P-2 is representation
submitted to AO on 22.05.1997 requesting for transfer. Through
his evidence further Ex.P-3 and Ex.P-4 the representations dated
09.07.1997 and 04.04.1998 and Ex.P-5 copy of representation and
Ex.P-6 two representations dated 11.07.1997 and 14.07.1997 are
marked. His evidence relating to pre trap and post trap will be
dealt with hereinafter.
22. As seen from Ex.P-2, which is request transfer application of
PW.1 before MPDO, Mandal Parishad, Tiruvur which is enclosed
with the application for transfer in proforma opting four places for
transfer, there is no dispute that in pursuance of the request
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under Ex.P-2, the transfer order in Ex.P-9 made up file was issued
by AO on 10.06.1997. So, according to it, PW.1 was transferred to
Elementary School Nadim Tiruvur in the retirement vacancy going
to arise on 30.06.1997 with direction to PW.1 to hand over the
charge on 30.06.1997 and take new charge on the same day.
There is also no dispute that on 29.06.1997, AO passed an order
canceling the transfer proceedings dated 10.06.1997, which is in
Ex.P-9 made up file. There is also no dispute that PW.1 relieved
himself on 30.06.1997 and when he made an attempt to report at
Nadim Tiruvur he was not allowed to do so. There is no dispute
that even the cancellation transfer order was served on PW.1 on
30.06.1997 in the evening only as per PW.3. There is no dispute
that aggrieved of the proceedings dated 29.06.1997, PW.1
approached the Tribunal and got suspended the order dated
29.06.1997. The said suspension order was passed by the
Tribunal on 08.07.1997. There is no dispute that consequent upon
the order of the Tribunal suspending the order dated 29.06.1997,
the original transfer order dated 10.06.1997 was restored. There is
no further dispute that on the strength of it, PW.1 joined at Nadim
Tiruvur School. There is also no dispute that, after joining for
duties, PW.1 used to make correspondence with AO. There is no
dispute that he submitted a joining report 09.07.1997 enclosing a
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copy of the Tribunal order in Ex.P-3 with in charge Headmistress.
He requested the in charge Headmistress to hand over to him the
duties along with the charge list. Apart from this, he submitted a
joining report to AO also under Ex.P-6 on 11.07.1997. He made a
request to AO to pay his salary. Ex.P-5 was submitted for
December, 1997 stating that since 6 months he was sending
salary bills every month but he was not paid any salary.
23. Coming to Ex.P-1, it was the report lodged by PW.1 before
the ACB on 28.04.1998. In Ex.P-1 he referred that he is working
as Headmaster since 10 months in MPE School, Nadim Tiruvur
and prior to that he worked as Headmaster in MPPS, Suravaram.
He relieved himself on 30.06.1997 as per the transfer proceedings
dated 10.06.1997 and that when he proceeded to report at Nadim
Tiruvur, he was not allowed to join. Then, he filed a case before
the Tribunal and got temporary suspension of cancellation
transfer orders on 08.07.1997 and he reported to duty on
11.07.1997 at Nadim Tiruvur School and sent his joining report by
registered post and still he is there. The Tribunal passed final
orders on 30.03.1998 by quashing the cancellation transfer order
dated 29.06.1997 and that later he met AO requesting to allow
him to do certain things and also AO did not issue any order and
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he demanded bribe of Rs.5,000/- to approve his salary bills and
pass appropriate orders. He further referred the demand dated
28.04.1998. So, the sequence of events that were narrated in
Ex.P-1 is in tune with the documents referred to above by this
Court in the discussion supra.
24. During the course of cross-examination of PW.1, he
admitted that the Tribunal passed the order on 08.07.1997
suspending the cancellation transfer order dated 29.06.1997.
There is no specific direction in that order directing to join him on
duty at Nadim Tiruvur. There is no order from his superior
authorities to join in duty at Nadim Tiruvur. It is true that he did
not hold any classes during the period of 10 months. He was
present when the MEO inspected the school.
25. It is to be noticed that when the order of AO dated
29.06.1997 canceling the transfer order was suspended, the order
of AO dated 10.06.1997 was restored to operation. By 08.07.1997,
PW.1 was not working in Suravaram as he was relieved on
30.06.1997. By virtue of the orders dated 08.07.1997, the order
dated 10.06.1997 was restored. So, PW.1 was bound to follow the
order dated 10.06.1997. Under the circumstances, there is no
merit in the cross-examination of PW.1 as to whether there was
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any order from the superior authorities to join duty at Nadim
Tiruvur.
26. Now, coming to the evidence of PW.2, the in charge
Headmistress, she categorically testified that he worked as teacher
in Nadim Tiruvur Elementary School and after retirement of one
Nagabhushanam, she was placed in charge Headmaster. She is
aware that PW.1 was transferred to their school as Headmaster
but she did not receive any instructions from AO. She did not
hand over the charge to Headmaster i.e., PW.1 in spite of his
requests. PW.1 used to attend the school regularly. She does not
know whether PW.1 maintained separate attendance register.
During the course of cross-examination, she admitted that though
the President of MPP is the competent authority to the transfers
but the transfer will be issued in the name of MDO. She favoured
one answer in favour of AO to the effect that PW.1 used to attend
the School 4 days per week. Learned Special Public Prosecutor
cross-examined her and elicited that she stated before the DSP
under Ex.P-10 that PW.1 used to attend the school regularly. So, it
is clear that PW.1 was attending the school regularly right from
08.07.1997 and in spite of the requests of PW.1, PW.2 was not in a
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position to hand over the charge for want of instructions from the
AO.
27. It is evident from the evidence of PW.3 also that PW.1 was
transferred to the post at Nadim Tiruvur in the retirement post to
be fallen vacant on 30.06.1997 but AO cancelled the said transfer
order on 29.06.1997. He testified that PW.1 approached the
Tribunal and got suspension of the transfer cancellation order and
PW.1 sent his joining report. His evidence is categorical further
that at the specific instructions of AO, he (PW.3) approached the
Standing Counsel of the Tribunal for clarification and the legal
advisor gave his opinion to continue PW.1 as Headmaster at
Nadim Tiruvur. Accordingly, after obtaining legal opinion, he
placed the orders with a note before the AO but the AO endorsed
on his note as to lie over the file till further orders are received
from the Court. He further testified that PW.1 used to send his
monthly pay bills for sanction to the AO. He further testified that
after obtaining legal opinion from the Standing Counsel of the
Tribunal and as per the instructions of AO, he sent a letter to the
Chief Executive Officer for clarification to pass the bills relating to
PW.1 and Ex.P-11 is the said letter dated 19.09.1997 along with
the note.
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28. During the Course of cross-examination, his evidence
remained unchallenged. It is not the defence of AO that PW.3
deposed false. His evidence was not at all impeached in any way.
So, the fact is that though PW.3 got a legal opinion on the
instructions of AO to continue PW.1 at Nadim Tiruvur and a note
was placed before AO, he simply endorsed to lie over.
29. It is the evidence of PW.4, the then MEO, Tiruvur that
previously PW.1 was transferred to Nadim Tiruvur vide order
dated 10.06.1997 and later the said order was cancelled and it
was served on PW.1 on 30.06.1997 at about 03:00 p.m. and PW.1
approached the Tribunal and the Tribunal suspended the transfer
cancellation order dated 29.06.1997. The specific evidence of PW.4
is also that AO referred the matter to legal opinion, who advised to
implement the order of the Tribunal. So, he (PW.4) placed a note
before AO for his approval but the AO endorsed on the note file to
lie over until further orders received from the Court. The said
endorsement can be seen as Ex.P-17. He further testified that on
31.10.1997 he inspected the Nadim Tiruvur Elementary School
and PW.1 was in the verandah of the School by maintaining
separate attendance register. On enquiry with the teachers, he
came to know that PW.1 is regularly attending the school and he
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incorporated the same in his report under Ex.P-8 and the relevant
entry is noted at Page Nos.68 and 69 of Ex.P-8. He sent his report
to AO.
30. During the course of cross-examination, he deposed that he
did not record the statement from PW.1. Whatever the reason may
be for the visit of PW.1 to Nadim Tiruvur School, he categorically
testified that his enquiry reveals that PW.1 is attending the school
regularly by sitting in the verandah. It is not the defence of AO
that PW.4 deposed false. His evidence was not impeached during
the course of cross-examination.
31. The evidence of PW.5, the then Junior Assistant in MDO
office is that when PW.3 was on leave for a period of two days i.e.,
on 09.06.1997 and 10.06.1997, he put up the transfer orders of
PW.1 along with others and AO approved it and later he came to
know about the trap.
32. Coming to the evidence of PW.6, she was the in charge
Headmaster who was retired on 30.06.1997 and she was placed as
in charge from 01.07.1997 to 17.07.1997. She know PW.1 and AO.
She received Ex.P-3 by way of registered post on 10.07.1997 at
about 01:00 p.m. She addressed a letter to MPDO on 11.07.1997
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that PW.1 approached her to hand over the charge. Ex.P-19 is the
said letter, dated 11.07.1997.
33. It is evident further from the evidence of PW.9, a crucial
witness to the case of the prosecution, that he was the MPP
President of Tiruvur Mandal. He know PW.1 and AO. He testified
that PW.1 was transferred Suravaram Elementary School to Nadim
Tiruvur Elementary School in the vacant post which would arise
on 30.06.1997 as Headmaster. Basing on the notes put up by
MDO and MEO, he used to approve them. Later, he cancelled the
said transfer order of PW.1 on 29.06.1997 under Ex.P-14. He
instructed AO to obtain legal advice with regard to the orders from
the Tribunal. The legal advisor opined that PW.1 transfer can be
effected. However, they filed Writ Petition against the final orders
of the Tribunal in O.A. No.3871 of 1997. Later, he came to know
that AO was trapped.
34. Learned Special Public Prosecutor cross-examined PW.9 as
he did not support the case of the prosecution on certain aspects
and he denied that he stated before ACB as in Ex.P-24 that he
know that PW.1 was not paid his salary from 01.07.1997 onwards
and that he is deposing false.
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35. Basing on the evidences of PW.2, PW.3, PW.4, PW.5, PW.6
and PW.9, there was no dispute that after obtaining an order of
transfer cancellation order dated 29.06.1997, AO reported to his
duty at Nadim Tiruvur School. It may be on 09.07.1997 and if not
must have been on 11.07.1997. The request of PW.1 by making
further correspondences with AO was that he was to be given
charge and further the pay bills which were being submitted by
him from Nadim Tiruvur were not processed. The evidence of PW.4
is very categorical that he inspected Nadim Tiruvur School and
found PW.1 in verandah by putting his signature in a separate
attendance register. It is to be noticed that it is a case where PW.1
felt aggrieved of the order, dated 29.06.1997, approached the
Tribunal and obtained interim suspension of that order as such on
the strength of the order dated 10.06.1997 he reported for duties
at Nadim Tiruvur school. There is no dispute that PW.1 used to
correspond with AO in this regard. The very allegation in Ex.P-1 is
that even as on 11.07.1997, nobody handed over any charge to
PW.1 and even he was not allowed to sign in the attendance
register as such he opened an attendance register and used to
sign in it every day. The fact that PW.1 was regularly attending the
duties was clearly proved by the prosecution by virtue of the
evidence of PW.2 and PW.4. When some of the subordinate
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employees in the office of AO basing on the representations of
PW.1 got instructions from the AO to obtain a legal opinion and
when the legal opinion was given in such a fashion that PW.1 can
be continued at Nadim Tiruvur and when a note was submitted
before AO, he simply made an endorsement to lie over. All this
goes to show categorically that PW.1 reported for duties at Nadim
Tiruvur but he was not allowed to take the charge of the
Headmaster and even he was not allowed to sign in the attendance
register but he was attending the school regularly. The AO had
knowledge that PW.1 was relieved on 30.06.1997 and his order
dated 29.06.1997 was suspended. He had knowledge that the
order dated 10.06.1997 had come into force which enabled PW.1
to report for duties at Nadim Tiruvur. He had knowledge that PW.1
was submitting his salary bills from Nadim Tiruvur. So, it is a case
where a public servant i.e., PW.1 was attending the school without
being entrusted with any duties whatsoever by his superior
officers like AO. So, undoubtedly, as on 06.04.1998, the official
favour in respect of the work of PW.1 to be done by AO was
pending with AO. It is brought in evidence by virtue of Ex.D-1 that
AO approached the erstwhile High Court of Andhra Pradesh at
Hyderabad in Writ Petition No.10062 of 1998 and filed W.P.M.P.
No.12226 of 1998 and obtained an order of status-quo on
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16.04.1998. W.P. No.10062 of 1998 was filed challenging the
order, dated 30.03.1998, of the Tribunal in O.A. No.3871 of 1997.
Ex.D-1 was marked during the cross-examination of PW.1. So, the
order under Ex.D-1 was only a status-quo existing as on that day.
There is no dispute that as on 16.04.1998 AO was working in a
primary school at Nadim Tiruvur and his request for his salaries
from the date of joining there were pending with AO. Hence,
Ex.D-1 cannot be taken as a factor to show that official favour in
respect of the work of PW.1 was not pending with AO. PW.1 during
cross-examination deposed that the High Court of A.P. set-aside
the final orders passed by the Tribunal. The above was only
subsequent to the trap as such it will have no bearing on point
Nos.2 to 4.
36. Apart from this, it is relevant to look into Exs.P-11 and P-17.
As seen from the evidence of PW.3, he made his effort to convince
the AO by getting even a legal opinion, at the instructions of AO,
and legal opinion was to continue PW.1 as Headmaster in Nadim
Tiruvur but AO endorsed on the note file to lie over till further
orders are received from the Court. So, AO was not willing to even
to follow the legal advice. As evident from Ex.P-11, AO addressed a
letter, dated 19.09.1997, to the Chief Executive Officer, Zilla
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Parishad, Krishna referring his order dated 10.06.1997
transferring PW.1 to Nadim Turuvur and subsequent cancellation
of his transfer order, dated 29.06.1997, and receipt of cancellation
order by PW.1 in the evening at 04:00 p.m. and PW.1 approaching
the Tribunal and getting an interim suspension of the cancellation
of transfer order dated 29.06.1997 etc. He found fault with the
action of PW.1 in making a joining report on 11.07.1997 and his
submitting pay bills for processing the same. AO observed that the
conduct of PW.1 was against the code of conduct. It is to be
noticed that when PW.1 obtained a remedy from the Tribunal
suspending the order, dated 29.06.1997. thereby in pursuance of
the earlier order, dated 10.06.1997, reported for his duties at
Nadim Tiruvur, it was the bounden duty of AO to make necessary
arrangements so as to direct the concerned to hand over the
charge to PW.1 and entrust him the duties to be performed. So, in
my considered view, Ex.P-11 would not come to the defence of AO
in any way. According to the evidence of PW.4, he also made
efforts before AO for approval to implement the order of the
Tribunal by taking legal opinion, at the instruction of AO, but the
AO endorsed on the file to lie over till further orders are received.
As seen from Ex.P-17, the endorsement of AO, it was dated
28.07.1997. The endorsement of AO was passed subsequent to
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obtaining the legal opinion. So in spite of the legal opinion in
favour of PW.1, obtained by the subordinates of AO, that too at the
instructions of AO, he ignored the same and attributed any
amount of illegality against PW.1 by virtue of Ex.P-11. All this
reflects the conduct of AO to evade his duties to attend the work
relating to PW.1 even much prior to Ex.P-1. Viewing from any
angle, this Court is of the considered view that the prosecution
has adduced cogent evidence before the Court below to show
pendency of the official favour in respect of the work of PW.1
before AO as on 06.04.1998, 28.04.1998 and 29.04.1998.
37. Now, coming to the crucial allegations of demand made by
AO to PW.1 to pay bribe of Rs.5,000/- on 06.04.1998, 28.04.1998
and 29.04.1998, PW.1 in his deposition has spoken to the facts as
referred to above, till the date of lodging report on 28.04.1998. His
evidence in this regard has corroboration from Ex.P-1 and the
various correspondences made by him as referred to above. There
was a contention advanced by the AO before the Court below that
as PW.1 filed a caveat before the High Court expecting that AO
would file a Petition before the High Court against the order dated
30.03.1998 of Tribunal, there was no possibility and probability
for PW.1 to approach AO on 06.04.1998. There is no dispute about
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the order dated 30.03.1998. There is also no dispute that PW.1
made a representation under Ex.P-4 to the AO and there is no
dispute that AO received the same along with copy of the final
orders but there is an endorsement on Ex.P-4 by AO to lie over till
further orders are received from the Tribunal. There is no dispute
that the distance between the MDO and school of AO is within the
reach. So, when PW.1 got an order from the Tribunal dated
30.03.1998, the act of his filing a caveat does not mean that he
had no right to meet AO to enquire as to what was happened
basing on the representation under Ex.P-4. Therefore, there was a
possibility for PW.1 to approach AO on 06.04.1998 to enquire his
pendency of official favour. It is to be noticed that from the very
beginning the approach of AO with regard to the cause of PW.1
was not in accordance with law and procedure. As seen from
Exs.P-11 and P-17, it appears that AO developed vindictive
attitude against PW.1 for his approaching the Tribunal against the
order dated 29.06.1997. The conduct of PW.1 cannot be found
fault for availing the remedies. On the other hand, the conduct of
AO can be found fault that even in spite of a legal opinion obtained
by his subordinates, at his instructions, he ignored the legal
opinion and attributed several things against PW.1 in Ex.P-11.
Under the circumstances and in my considered view, there was
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every possibility proved by the prosecution that PW.1 approached
AO on 06.04.1998. This Court has no reason to disbelieve the
testimony of PW.1 in this regard. In Ex.P-1, it is alleged that on
06.04.1998 AO demanded PW.1 to pay bribe of Rs.5,000/- failing
which he will approach the High Court. So, approaching of AO to
the High Court by way of filing Writ Petition No.10062 of 1998
against the order in O.A. No.3871 of 1997 dated 30.03.1998 was
only subsequent to 06.04.1998. Ex.D-1 is order dated 16.04.1998.
It was only directing the status-quo to be maintained as on that
day and by then PW.1 was already working in Nadim Tiruvur
primary school. Hence, this Court is convinced to believe the
evidence adduced by the prosecution relating to the demand made
on 06.04.1998. Even the learned Special Judge with cogent
reasons gave findings in favour of the prosecution in this regard.
38. Turning to the demands dated 28.04.1998 and 29.04.1998
they are interlinked with each other according to Ex.P-1 and the
evidence of PW.1. So, the case of the prosecution is that on
28.04.1998 when PW.1 approached the AO requesting to clear his
works i.e., implement the orders of the Tribunal and to pay his
salary, AO demanded him to bring the bribe amount on
29.04.1998. The learned Special Judge believed the case of the
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prosecution with regard to the demand and recovery of amount
dated 29.04.1998 but disbelieved the case of the prosecution with
regard to the demand dated 28.04.1998 and further believed the
defence theory that PW.1 thrusted the amount into the right hand
of AO. As this Court already pointed out having given a categorical
finding with regard to the demand and recovery of the amount, the
subsequent finding of learned Special Judge comes in conflict with
the earlier findings.
39. This Court has carefully considered the evidence available
on record. PW.1 categorically testified that on 28.04.1998, AO
demanded him to bring Rs.5,000/- on 29.04.1998 and as he was
not willing to give bribe, he lodged Ex.P-1 report. It is to be noticed
that though the High Court ordered status-quo existing as on
16.04.1998, but the thing was that the status-quo as on
16.04.1998 was to be followed and by which time PW.1 was
working in Nadim Tiruvur and his request for salary bills of
various months right from the first week of July, 1997 were
pending with AO. So, the status-quo order, dated 16.04.1998, was
not coming in the way of PW.1's approaching AO reiterating his
earlier request. Though the prosecution has raised a contention
before the Court below that by 28.04.1998, PW.1 had no
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knowledge about the orders of status-quo, but in my considered
view, the knowledge of status-quo dated 16.04.1998 can be
attributed to PW.1 because by then, his counsel was on record
before the High Court as he got filed a caveat therein. So, there
was every possibility for PW.1 to approach the AO on 28.04.1998.
Simply because there was an order of status-quo under Ex.D-1, it
cannot be held that PW.1 had no right to meet the AO on
28.04.1998.
40. The Court below relied upon the evidence of PW.7, the
watchman and PW.9, the then MPP President, Tiruvur to uphold
the contention of AO that on 28.04.1998, AO went to Vijayawada
to attend Janmabhumi Review Meeting conducted by the District
Collector. The Court below further relied upon the evidence of
DW.2.
41. It is to be noticed that the context of examination of PW.7 by
the Investigating Officer after conducting post trap proceedings is
that AO put forth a theory before the Investigating Officer that
PW.1 came to his residence and forcibly thrusted the tainted
amount in his right hand and went on, then he kept it just under
the pillow and shouted for the Attender. To counter check the said
version, the Investigating Officer examined PW.7, whose statement
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before the Investigating Officer was that he just saw PW.1 going
into the house of AO and he (PW.7) was not called by AO. In this
context, prosecution cited PW.7. His chief-examination before the
Court below is that he knows AO and PW.1. On the date of trap at
09:00 a.m. he went to the residential quarter of AO to take tiffin
for him. Then, PW.1 came and went into the house of AO. He do
not know what was transpired in the room of AO. ACB trap party
came and went into the house of AO. He was examined by the
Police. So, in his chief-examination he reported the theory of the
case of the prosecution but when it comes to cross-examination,
he deposed certain answers deviating from his 161 Cr.P.C
statement and gone to the extent of testifying that prior to the
alleged date of trap i.e., on previous date, he supplied tiffin to AO
during morning time and boarded him in Vijayawada bus. He do
not know when AO returned back. So, the prosecution got
declared him as hostile and during cross-examination he denied
that he stated before Police as in Ex.P-20.
42. PW.13 is the Inspector of Police, ACB, Vijayawada, who took
part subsequent investigation, testified that PW.7 stated to him as
in Ex.P-20. The prosecution impeached the evidence of PW.7. It is
a case where PW.7 deviating his case from 161 Cr.P.C statement
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spoken certain facts which were not at all concerned to the case of
the prosecution. PW.7 was a hostile witness, who deviated from
161 Cr.P.C statement and his hostility was proved under Ex.P-20
by virtue of the evidence of PW.13. When that is the situation,
without any scrutiny, whatsoever, the observation of the trial
Court that PW.7 supported the defence theory is not tenable.
Likewise, PW.9 was the then MPP President, Tiruvur. Prosecution
examined him as he was examined during investigation to speak
about the pendency of the official favour etc. When he did not
support the case of the prosecution that whether he had
knowledge that PW.1 was not paid his salary from 01.07.1997,
learned Special Public Prosecutor cross-examined him and he
denied that he stated before ACB Police as in Ex.P-24.
43. PW.13 testified that PW.9 stated before him as in Ex.P-24.
Portion of 161 Cr.P.C. statement was with regard to the pendency
of the salary bills. He gave a go bye during the course of trial of his
statement under Section 161 Cr.P.C. The learned Special Judge
further without analyzation of the evidence of PW.9, relied upon an
answer elicited by the defence counsel during the course of cross-
examination. The defence counsel put a question to PW.9 in cross-
examination that ‗by taking your permission the AO left
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Vijayawada on the prior day of alleged trap? Ans:- Yes'. The
observation of the learned Special Judge in this regard is that after
eliciting the above said answer, prosecution kept quiet as such the
above evidence is true. The learned Special Judge did not note
that already the prosecution impeached his testimony by
suggesting him that he is deposing false as AO worked under him
so as to help him. Hostility of PW.9 was proved by virtue of Ex.P-
24 in the evidence of PW.13. So, the reliance placed by the Court
below upon the evidence of PW.7 and PW.9 to show that AO was
out of station on 28.04.1998 is not tenable.
44. There remained the evidence of DW.1 and DW.2 with regard
to the contention of AO that on 28.04.1998 he went to Vijayawada
to attend Janmabhumi Review Meeting. The AO examined DW.1,
Deputy Statistical Officer, on summons and he was summoned to
produce record relating to proceedings of Janmabhumi Review
Meeting held by the Collector at Vijayawada on 28.04.1998.
According to DW.1, the minutes of the review meeting would be
destroyed after one year. Ex.X-1 is the Memo filed stating that the
records relating to that meeting were destroyed. The learned
Special Judge did not place reliance upon the evidence of DW.1
and Ex.X-1. AO further got examined DW.2, the then MDO of
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Chatrai Mandal, Krishna District, who worked in the year 1998.
His evidence was that on 28.04.1998, the District Collector
convened a Janmabhumi Review Meeting at Sub-Collector's Office,
Vijayawada. He and AO along with others attended the meeting
held in between 10:00 a.m. and 05:00 p.m. and they signed in the
attendance sheet. In cross-examination by the learned Special
Public Prosecutor he deposed that no record is available with him
to show that they have attended the meeting on 28.04.1998. He
denied that no meeting was held on 28.04.1998, especially in
between 10:00 a.m. to 05:00 p.m. and since AO is his colleague,
he is deposing false. He further denied that he and AO did not sign
in any attendance sheet as alleged. He deposed that he do not
remember the date, month and year of the previous and
subsequent Janmabhumi Review Meetings conducted by the
District Collector. So, by virtue of the answers in cross-
examination, it is clear that when DW.2 was capable of
remembering the date on 28.04.1998 as on the date of his
evidence on 18.02.2005, it is rather surprising that he could not
remember the previous and subsequent dates of Janmabhumi
Review Meetings. Except the oral say of DW.2 and AO, there
remained nothing to prove that AO attended the Janmabhumi
Review Meeting on 28.04.1998 from 10:00 a.m. to 05:00 p.m. If at
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all the record relating to the review meeting held in the Sub-
Collectors Office at Vijayawada was destroyed, there would have
been other records in the office of AO either in the form of TA bill
etc., to show the absence of AO on that particular day. Having
regard to the above, this Court is of the considered view that the
plea of AO was alibi. So, when the AO took the plea of alibi, it
should be proved satisfactorily. The evidence adduced by the AO is
not at all believable in this regard. Hence, I disagree with the
finding of the learned Special Judge that AO was out of station on
28.04.1998 from 10:00 a.m. to 05:00 p.m. If that is excluded from
considering the evidence, the evidence of PW.1 remained un-
shaked. He denied during the cross-examination the defence
theory in this regard. In the light of the above, this Court is
inclined to believe the evidence that on 28.04.1998 AO demanded
PW.1 to pay a bribe of Rs.5,000/-. As this Court already pointed,
demand dated 29.04.1998 was interlinked with the previous
demand, dated 28.04.1998, which the learned Special Judge failed
to take into consideration. However, the learned Special Judge
upheld the case of the prosecution with regard to the demand
dated 29.04.1998 and consequent acceptance of the bribe of
Rs.5,000/- during the post trap.
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45. Insofar as the demand dated 29.04.1998 is concerned, the
evidence of PW.1 is that he met the ACB on 29.04.1998 i.e., on the
next day of presenting Ex.P-1 report. On 28.04.1998, he was
instructed by ACB Inspector to come to his office on 29.04.1998 at
05:00 a.m. along with the proposed bribe amount. He categorically
deposed that he brought the amount and then DSP, Inspectors
and two mediators were present and ACB conducted chemical test
explaining the importance of phenolphthalein powder and further
phenolphthalein powder was applied to tainted amount and serial
numbers of the tainted amount were noted in the pre trap
proceedings and DSP instructed him to pay an amount of
Rs.5,000/- to AO only on further demand. The evidence of PW.1 in
this regard is consistent with the evidence of PW.10, the mediator
and PW.12, the Trap Laying Officer. They have also spoken about
the pre trap proceedings minutely.
46. Coming to the post trap proceedings, the evidence of PW.1 is
that they left ACB office at 07:00 a.m. They stopped their vehicles
at a distance of one furlong to the residential quarter of AO. Then
he got down from the car and was instructed again by the DSP to
pay the bribe amount only on further demand of AO and thereby
to give the pre arranged signal. He testified that he proceeded to
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the house of AO and as somebody were there conversing with AO,
he waited for some time. Within five minutes, the clerk who was in
the house of AO came out and then he went into the house of AO
and found AO sitting on a cot. AO asked him whether he brought
the intended bribe amount. Then he stated that he brought the
amount and so saying handed over the bribe amount to AO and he
took Rs.5,000/- with his right hand and kept the same under a
pillow. Then, AO assured that he will allow him to join at the same
place as per the Tribunal's order and clear the arrears of salary.
Then, he came out and relayed the pre arranged signal. ACB
rushed into the house of AO. DSP instructed PW.1 to wait outside
the house and they entered into the house of AO. After one hour,
DSP called him and enquired what transpired and his version was
recorded by the mediators. During the cross-examination, the fact
that PW.1 met AO at his residence is not denied. In cross-
examination, he deposed that he found AO when he entered into
the house on a single cot and found a bed on the cot which was
covered by the bed sheet. He denied that AO did not ask him
whether he brought the tainted amount. He denied a suggestion
that when he offered to give the bribe amount, AO refused and
pushed the same with his hands as a result tainted amount fell on
the cot and then AO raised cries calling his Attender. He denied
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that on the pretext that his earlier transfer order was cancelled, he
got filed false cases against AO with the help of ACB officials. The
evidence of PW.10 and PW.12 is that on receiving pre arranged
signal from PW.1, they rushed into the house of AO. They have
spoken about the fact that they have conducted chemical tests to
both hand fingers of AO and right hand fingers yielded positive
result and left hand fingers yielded negative result. He further
testified that the resultant solutions were packed, labeled, seized
and got attested by them in their presence. MOs.4 and 5 are the
resultant solutions. They have also spoken about the test on
underneath the pillow cover, which yielded positive result. AO
agitated before PW.10 during cross-examination about the
thrusting theory and that the true version of AO was not recorded.
He also agitated before PW.12 about the thrusting theory and his
true version was not recorded.
47. The fact that AO dealt with the tainted amount was not in
dispute. His defence was that when PW.1 thrusted amount into
his right hand, he expressed his inability to do favour for PW.1
and resisted the act of PW.1 as such the amount fallen on the cot
and then he was shouting for the Attender. The contention of AO
before the Court below was that the amount was not recovered
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from his possession. It is to be noticed that the post trap
proceedings under Ex.P-29 reveals that by the time the trap party
entered into the house of AO, AO was with banyan and lungi.
PW.12, the Trap Laying Officer, categorically spoken this in his
chief-examination to the effect that after receiving pre arranged
signal, they rushed into the residential quarter of AO and they
were informed by PW.1 that AO was in his bedroom and then after
giving instructions to PW.1 to wait outside, they entered into the
bedroom of AO and found the AO was with banyan and lungi. The
fact that by the time ACB officials entered into the bedroom of AO,
he was with banyan and lungi as mentioned in the post trap
proceedings and as deposed by PW.1 was not at all disputed
during the cross-examination. So, when AO was not wearing a
shirt or trouser and when he was found sitting on a cot when
PW.1 entered into the house, the natural reaction of the bribe
taker would be to keep the amount on the cot after demanding
and accepting the bribe amount. So, the evidence of PW.1 that AO
took the amount with his right hand and kept it under a pillow
was suited to the case of the prosecution. So, the contention of AO
that the amount was not recovered from his possession was of no
use to his defence.
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48. Now, coming to the thrusting theory, firstly, AO has no
answer as to why he allowed PW.1 to his residence on 29.04.1998.
As this Court pointed out, AO directed PW.1 to pay the bribe
amount to him on 29.04.1998 and accordingly PW.1 went to his
residence. AO had knowledge that, even according to his defence,
he did not oblige the request of PW.1 for months together in
clearing his salary bills and in making some in-charge
arrangements so as to direct somebody to give charge to PW.1
when PW.1 joined by availing the remedies under law. The natural
reaction of AO, if really, PW.1 thrusted amount in his hands would
be to chase PW.1 to outside calling him back. He had no business
to allow the amount to lie on the cot. PW.10, an independent
mediator, and PW.12, the Trap Laying Officer, who had no enmity
with AO had no reason to make a mention in the post trap that
the amount was found lying underneath the pillow. It is not that
they found the amount on the cot open to the naked eye. So, the
evidence of PW.1 that AO kept the amount underneath the cover
had corroboration from the evidence of PW.10, the mediator, and
PW.12, the trap laying officer, and further the contents of post
trap proceedings.
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49. As evident from Ex.P-29, post trap proceedings, the version
of AO when the DSP confronted him as to whether he accepted the
bribe amount from PW.1 was that U.V.Sesha Rao - PW.1,
approached him little ago and requested him the transfer orders
as Headmaster MPES, Suravaram at his previous station instead
of Nadim Tiruvur and he told him that it was not possible for him
at the present juncture and he forcibly thrusted the currency
notes in his hands and went away. Then, he kept the said
currency notes on his bed which is underneath the pillow shouting
for the Attender. It is to be noticed that from the very beginning
PW.1 was thinking that he would be entrusted with the duties at
Nadim Tiruvur consequent upon his joining. He got transfer to
Nadim Tiruvur on his request. So, the self styled version of AO as
if PW.1 thrusted the amount and requested him to issue transfer
order at his previous station instead of Nadim Tiruvur cannot
stand to any reason. The contention of AO was that the true
version was not incorporated in the post trap proceedings. As
pointed out PWs.10 and 12 have no animosity against AO to
incorporate a different version. He did not spell out in the post
trap that when PW.1 thrusted the amount into the right hand and
when he resisted, it fell on the cot. If that is true, his natural
reaction would be to chase PW.1 to outside by taking the amount
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into his hands. Viewed from any angle, the defence theory, in my
considered view, is not at all convincing. In my considered view,
the evidence on record further cogently establishes that AO
demanded PW.1 on 29.04.1998 to pay the bribe of Rs.5,000/- and
in pursuance of the demand only PW.1 paid the amount to AO,
which was ultimately recovered from underneath the pillow on the
bed in the bedroom of AO. The prosecution is able to prove
recovery of the amount from the possession of AO in the manner
as alleged by the prosecution.
50. Turning to the decision of the Hon'ble Apex Court in
Darshan Lal (2nd supra), the case of the prosecution therein was
based upon the interested and partisan witnesses who were not
concerned in the success of trap. Under the said circumstances,
the Hon'ble Supreme Court allowed the Appeal under the PC Act.
Coming to the case on hand, the evidence of PW.1 is fully
convincing. By relying upon the above, learned counsel for the
respondent cannot support his contention in any way.
51. Turning to the other decision of the Hon'ble Apex Court in
Shantilal Kashibhai Patel (1st supra), the complainant therein in
his cross-examination admitted that he had thought to teach a
lesson to the AO as he used to carry out raids on and often on Pan
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gallas and he felt that he is harassing businessmen selling Pan
and Masalas. So, it is a case where complainant had some
animosity.
52. Coming to the case on hand, PW.1 right from the beginning
was working out his remedies in accordance with law. It was AO
who developed some vindictive attitude against PW.1 for no fault of
him just because he approached the Tribunal challenging the
transfer cancellation order, dated 29.06.1997. Under the above
circumstances, throughout PW.1 was availing his remedies as per
law as such he had no reason, whatsoever, to falsely implicate the
AO in this case. At this juncture, this Court would like to make it
clear that as the prosecution successfully proved the demands
dated 06.04.1998, 28.04.1998 and 29.04.1998 made by AO to
PW.1 to bring the bribe of Rs.5,000/- and that in consequence of
that only PW.1 paid the amount to AO, now there arises a
presumption as contemplated under Section 20 of the PC Act.
Section 20 of the PC Act runs as follows:
―20. Presumption where public servant accepts
gratification other than legal remuneration --
(1) Where, in any trial of an offence punishable under
Section 7 or Section 11 or clause (a) or clause (b) of sub-
section (1) of Section 13 it is proved that an accused person
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has accepted or obtained or has agreed to accept or
attempted to obtain for himself, or for any other person, any
gratification (other than legal remuneration) or any valuable
thing from any person, it shall be presumed, unless the
contrary is proved, that he accepted or obtained or agreed to
accept or attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive or reward
such as is mentioned in Section 7 or, as the case may be,
without consideration or for a consideration which he
knows to be inadequate.
(2) Where in any trial of an offence punishable under
Section 12 or under clause (b) of Section 14, it is proved
that any gratification (other than legal remuneration) or any
valuable thing has been given or offered to be given or
attempted to be given by an accused person, it shall be
presumed, unless the contrary is proved, that he gave or
offered to give or attempted to give that gratification or that
valuable thing, as the case may be, as a motive or reward
such as is mentioned in Section 7, or, as the case may be,
without consideration or for a consideration which he
knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1)
and (2), the court may decline to draw the presumption
referred to in either of the said sub-sections, if the
gratification or thing aforesaid is, in its opinion, so trivial
that no interference of corruption may fairly be drawn.‖
53. The Hon'ble Apex Court in Neeraj Dutta v. State
(Government of NCT of Delhi)5, presided over by a Constitutional
5 (2022) SCC OnLine SC 1724
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Bench, examined the earlier decisions in B. Jayaraj v. State of
Andhra Pradesh6, P. Satyanarayana Murthy v. District
Inspector of Police, State of Andhra Pradesh7 and M.
Narsinga Rao v. State of A.P8 elaborately and dealt with the
essential ingredients of Sections 7, 13(1)(d) R/w.13(2) and 20 of
the PC Act and held that there was no conflict relating to the
aforesaid three decisions as referred to above. Further, the Hon'ble
Apex Court at Para No.74 held as follows:
"74..........................................
(e) The presumption of fact with regard to the demand and
acceptance or obtainment of an illegal gratification may be
made by a court of law by way of an inference only when the
foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the
basis of the material on record, the Court has the discretion to
raise a presumption of fact while considering whether the fact
of demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the
Accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or
is unavailable to let in his evidence during trial, demand of
illegal gratification can be proved by letting in the evidence of
any other witness who can again let in evidence, either orally
or by documentary evidence or the prosecution can prove the
6 (2014) 13 SCC 55
7 (2015) 10 SCC 152
8 (2001) 1 SCC 691
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case by circumstantial evidence. The trial does not abate nor
does it result in an order of acquittal of the Accused public
servant.
(g) In so far as Section 7 of the Act is concerned, on the proof
of the facts in issue, Section 20 mandates the court to raise a
presumption that the illegal gratification was for the purpose
of a motive or reward as mentioned in the said Section. The
said presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course, the said
presumption is also subject to rebuttal. Section 20 does not
apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law Under Section 20 of
the Act is distinct from presumption of fact referred to above
in point (e) as the former is a mandatory presumption while
the latter is discretionary in nature."
54. Coming to the case on hand, the prosecution had
categorically proved the foundational facts pleaded by the
prosecution. So, there arises a legal presumption in favour of the
prosecution that the amount that was demanded and accepted by
the AO was only for the purpose of motive or reward for doing
official favour. Though the presumption under Section 20 of the
PC Act is applicable to Section 7 of the PC Act, which is a
rebutable presumption, in my considered view, the theory of
defence of AO to rebut the presumption is only thrusting theory,
which he miserably failed to probabilize. The Court below, as this
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Court already pointed out, having believed the case of the
prosecution with regard to the demands dated 06.04.1998 and
29.04.1998 erroneously disbelieved the case of the prosecution
with regard to the demand dated 28.04.1998. The Court below
with regard to the defence theory believed the case of the AO that
PW.1 thrusted the amount into the right hand of AO. In the light
of the detailed reasons furnished supra, the defence of AO is not at
all tenable. In my considered view, the learned Special Judge
without proper analyzation of the evidence and with unreasonable
reasons believed the defence theory. As pointed out, the findings of
the learned Special Judge believing the defence theory comes in
conflict with his earlier findings categorically that „there is ample
evidence to show that the recovery from AO was illegal
gratification which he was not entitled from PW.1 and he
accepted the same for doing an official favour for processing
the issuance of salary bills and for giving posting orders to
PW.1'. The learned Special Judge at Para No.69 of the judgment
opined that ‗It appears, as seen from the admitted facts that
knowing well that the A.O. cannot pass any orders, since the
question in controversy is pending on the file of Honourable
High Court, P.W.1 approached on the date of trap‟. The above
finding comes in conflict with the findings of the learned Special
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Judge believing the case of the prosecution relating to post trap
i.e., demand and acceptance of bribe by the AO from PW.1. As this
Court already pointed out, Ex.D-1 - status-quo order was not
preventing PW.1 in approaching AO to comply his earlier request.
This Court, on its own having independently analyzed the evidence
on record, is of the considered view that the evidence on record
categorically proved that the official favour of PW.1 was pending
with AO as on the aforesaid three dates and in furtherance of
demand made by AO on 29.04.1998, PW.1 paid the bribe amount
to AO during the post trap. When the thrusting theory put forth
by the defence is not believable, absolutely, there remained
nothing on record to rebut the presumption under Section 20 of
the PC Act.
55. In the light of the above, this Court is of the considered view
that the prosecution before the Court below categorically proved
Point Nos.3 and 4 beyond reasonable doubt as such there are
grounds to set-aside the judgment of the learned Special Judge.
The learned Special Judge did not give any finding as to the
pendency of official favour with proper reasons and the findings of
the learned Special Judge in disbelieving the case of the
prosecution with regard to the demand for bribe on 28.04.1998
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are not proper and further the findings of the learned Special
Judge believing the defence theory are not at all on sound reasons.
Hence, I hold that the prosecution before the Court below
categorically proved that the AO demanded PW.1 to pay bribe of
Rs.5,000/- and in pursuance of that PW.1 paid the amount of
Rs.5,000/- to AO. The act of AO in demanding PW.1 and obtaining
the amount is nothing but pecuniary advantage under Section
13(1)(d) punishable under Section 13(2) of the PC Act. Hence, the
prosecution before the Court below proved both the charges
against the AO beyond reasonable doubt as such AO is liable to be
convicted by setting-aside the impugned judgment.
56. While concluding, this Court would like to make it clear the
contention of AO at the time of arguments is that as of now the AO
is in the age around 80 years and suffering with ill-health and the
Court may take into consideration the above. It is very difficult to
accept such contention. Simply because AO as of now is around
80 years appreciation of evidence by this Court would not be on
other parameters. The Hon'ble Apex Court in Neeraj Dutta (5th
supra), while concluding, referred its earlier observations and held
as follows at Para Nos.79 and 80:
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"79. In this regard, we would like to reiterate what has
been stated by this Court in Swatantar Singh v. State of
Haryana, (1997) 4 SCC 14:
"6. ...........Corruption is corroding, like
cancerous lymph nodes, the vital veins of the
body politic, social fabric of efficiency in the
public service and demoralising the honest
officers. The efficiency in public service would
improve only when the public servant devotes
his sincere attention and does the duty
diligently, truthfully, honestly and devotes
himself assiduously to the performance of the
duties of his post. The reputation of corruption
would gather thick and unchaseable clouds
around the conduct of the officer and gain
notoriety much faster than the smoke".
80. The above has been reiterated in A.B. Bhaskara Rao
v. CBI, (2011) 10 SCC 259 by quoting as under from the case
of State of M.P. v. Shambhu Dayal, (2006) 8 SCC 693:
"32. It is difficult to accept the prayer of the
respondent that a lenient view be taken in this
case. The corruption by public servants has
become a gigantic problem. It has spread
everywhere. No facet of public activity has been
left unaffected by the stink of corruption. It has
deep and pervasive impact on the functioning of
the entire country. Large-scale corruption
retards the nation-building activities and
everyone has to suffer on that count.""
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57. Having regard to the overall facts and circumstances, the
only thing which can be found favour with the respondent (AO) so
as to impose sentence is that though prosecution approached this
Court in the year 2007, the Appeal has been pending since the
year 2007. As on the date of filing the Appeal, the age of AO may
be around 64 years. Here, the offence under Section 7 of the PC
Act, as on the date of offence was punishable with imprisonment
which shall not be less than six (6) months but which may extend
to five years and shall also be liable to fine. The offence under
Section 13(1)(d) R/w.13(2) of the PC Act as on the date of offence
was punishable with imprisonment which shall not be less than
one year but which may extend to seven years and shall also be
liable to fine.
58. Having regard to the overall facts and circumstances, the
ends of justice will meet if the AO is sentenced to undergo
minimum imprisonment provided under law.
59. In the result, the Criminal Appeal is allowed by setting aside
the judgment in Calendar Case No.13 of 1999, dated 16.05.2005,
on the file of the Court of learned Special Judge for SPE & ACB
Cases, Vijayawada thereby convicting the AO under Section 248(2)
Cr.P.C for the charges under Sections 7 and 13(1)(d) R/w.13(2) of
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the PC Act. Accordingly, the respondent/AO is sentenced to suffer
Rigorous Imprisonment for six (6) months and to pay a fine of
Rs.5,000/- in default to suffer Simple Imprisonment for three (3)
months for the charge under Section 7 of the PC Act and he is
further sentenced to suffer Rigorous Imprisonment for one year
and to pay a fine of Rs.5,000/- for the charge under Section
13(1)(d) R/w. Section 13(2) of the PC Act. Both the sentences
imposed above shall run concurrently. MO.3, currency notes of
Rs.5,000/-, is ordered to be returned to PW.1 and MOs.1 and 2
and MOs.4 to 6 are ordered to be destroyed after appeal time is
over, if available before the Court below.
60. The Registry is directed to take steps immediately under
Section 388 Cr.P.C to certify the judgment of this Court to the
Court below and on such certification, the trial Court shall take
necessary steps to carry out the sentence imposed against the
respondent/accused in Calendar Case No.13 of 1999, dated
16.05.2005, by issuing Non Bailable Warrant against the
respondent/accused and to report compliance to this Court.
Registry is directed to dispatch a copy of this judgment along with
the lower Court record, if any, to the Court below on or before
03.03.2023 in the name of the Presiding Officer concerned. A copy
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of this judgment be placed before the Registrar (Judicial),
forthwith, for giving necessary instructions to the concerned
Officers in the Registry. A copy of this judgment shall also be
forwarded to the Head of the Department of AO for information
and further action, if any.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 24.02.2023
DSH
