Andhra Pradesh High Court - Amravati
State Of Ap Rep By Its Spl Pp Hyd., ... vs Sri Nimmakayala Vijaya Vijaya ... on 9 February, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1004 OF 2007
Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau,
Nellore Range, Nellore .... Appellant
Versus
Sri Nimmakayala Vijaya @ Vijaya Kumar,
S/o.Ramanaiah, Aged 30 Years,
Formerly Deputy Surveyor,
Dagadarthi Mandal,
Nellore District. .... Respondent
DATE OF JUDGMENT PRONOUNCED : 09.02.2023
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
3. 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.1004 OF 2007
% 09.02.2023
# Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau,
Nellore Range, Nellore .... Appellant
Versus
Sri Nimmakayala Vijaya @ Vijaya Kumar,
S/o.Ramanaiah, Aged 30 Years,
Formerly Deputy Surveyor,
Dagadarthi Mandal,
Nellore District. .... Respondent
! Counsel for the Appellant : Sri S.M.Subhani, Standing
Counsel and Special Public
Prosecutor for SPE & ACB
Cases
^ Counsel for the Respondent : Sri A. Hari Prasad Reddy
< Gist:
> Head Note:
? Cases referred:
1. 2006 (1) ALT (Crl.) 114 (SC)
2. 2013 (3) ALT (Crl.) SC 316
3. 1989 Supp (2) SCC 140
4. (1970) 3 SCC 772
5. AIR 1972 SC 468
6. MANU/UP/0302/1991
7. (2022) SCC OnLine SC 1724
This Court made the following:
3
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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1004 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), Nellore Range, Nellore through the
Standing Counsel for ACB and Special Public prosecutor
questioning the judgment in Calendar Case No.7 of 2003, dated
26.02.2007, on the file of the Court of Special Judge for SPE and
ACB Cases, Nellore (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(2) R/w. 13(1)(d) of
the Prevention of the Corruption Act, 1988 (for short, ‗the PC Act')
and accordingly acquitted him 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, in C.C. No.7 of 2003
pertaining to Crime No.12/ACB-NLR/2002 of ACB Nellore Range,
Nellore on the file of the Court of Special Judge is as follows:
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The Accused Officer, Nimmakayala Vijaya @ Vijaya Kumar,
worked as Deputy Surveyor in the Office of Mandal Revenue
Officer (MRO), Dagadarthi Mandal, Nellore District from
15.12.2000 to 16.09.2002 as such he is a public servant within
the meaning of Section 2(c) of the PC Act. LW.1 - Gorantla
Veeraiah Chowdary is a resident of Bitragunta Village, Bogolu
Mandal, Nellore District. The said LW.1 has an extent of Ac.13.0½
cents of dry land in Survey No.1-1, Ac.0.50 cents of dry land in
Survey No.1-2 and Ac.3.16 cents of land in Survey No.19-1, totally
an extent of Ac.16-66½ cents and his brother G. Butchi Naidu has
also an extent of Ac.16-66½ cents in the above said survey
numbers. They purchased the same from one Kakuturu
Bhakthavatsala Reddy and Pundla Venkata Sivamma of Allur.
They got registered the same in their favour. They obtained
pattadar pass books from MRO, Dagadarthi. LW.1 - G. Veeraiah
Chowdary sold an extent of Ac.5.30 cents of land in Survey No.1/1
to his brother Butchaiah Naidu. So, he, with an intention to get
survey his land, submitted a representation to MRO, Dagadarthi
(LW.7) on 01.09.2001 with a request to survey the land of him and
his brother and to fix the boundaries. LW.7 - MRO, Dagadarthi
endorsed the representation of the de-facto complainant to the AO,
who is Deputy Surveyor, with instructions to attend the work.
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LW.4 - Smt. Kamineni Annapurnamma and Nethi Lakshmi have
also lands in the above said survey numbers. K. Annapurnamma
also approached the then MRO, Dagadarthi and submitted a
representation with a request to show the boundaries of her land.
MRO instructed the then Surveyor. But, the then Surveyor did not
show the boundaries and he was transferred. About 9 months
prior to 15.09.2002, the AO visited the land of LW.1 at
Kaminenipalem and surveyed the same but failed to give his
report. LW.1, de-facto complainant approached the AO several
times and asked him about the survey report. But, he did not give
his report. About one week prior to 15.09.2002, LW.1 approached
the AO and enquired about the survey report. Then the AO, being
a public servant, demanded him to pay illegal gratification of
Rs.15,000/- to do official favour. Again, on 14.09.2002 at 07:00
a.m. LW.1 approached the AO at his residence at Beeramgunta
and enquired about the survey report. The AO reiterated his
earlier demand. Then, LW.1 expressed his inability to pay such
huge amount. Then, AO reduced the bribe as that of Rs.8,000/-
and demanded him to pay the same on 16.09.2002 at 10:00 a.m.
As he has no other go, he accepted to pay the same and went
away. LW.1, who was not willing to pay the illegal gratification to
AO, approached LW.12 - Inspector of Police, ACB, Nellore on
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15.09.2002 and gave a report. LW.11, the in-charge Deputy
Superintendent of Police, ACB, Nellore registered it as a case in
Crime No.12/ACB-NLR/2002.
4. Pre trap proceedings took place in the office room of LW.11
on 16.09.2002 from 09:00 a.m. to 10.45 a.m. in the presence of
LWs.2 and 3 i.e., Sri S.M. Hussainy - Forest Range Officer and D.
Ramanaiah - Typist, who are the mediators. On 16.09.2002, the
Deputy Superintendent of Police, ACB, Nellore along with his staff,
mediators and de-facto complainant left Nellore and reached
Dagadarthi at 12:40 p.m. LW.1 approached the AO in his office
room, who further demanded and accepted the illegal gratification
of Rs.8,000/- from him. On receipt of the pre-arranged signal, the
Deputy Superintendent of Police, his staff and mediators rushed
into the office room of AO and subjected both hand fingers of the
AO to chemical test, which proved positive result. The AO took out
the currency notes from his right side table drawer and produced
the same. The numerical numbers of the notes were compared
with that of the numbers, which were recorded in the pre trap
proceedings, and they were found to be tallied. LW.11, the Deputy
Superintendent of Police (DSP), seized the tainted amount of
Rs.8,000/-. He got conducted the swab test over the right side of
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the table drawer which came into contact with the tainted amount
and the test proved positive result. He seized the representation,
dated 01.09.2001, of the de-facto complainant and the rough
sketch relating to survey numbers of LW.1, prepared by AO from
his possession. The Government of Andhra Pradesh, accorded
sanction to prosecute the AO vide G.O.Ms.No.460, Revenue
(VIG.II) Department, dated 25.03.2003. So, Accused Officer is
liable for punishment under Sections 7 and 13(2) R/w.13(1)(d) of
the PC Act.
5. The learned Special Judge took cognizance of the case under
the above provisions of law and after appearance of the accused in
pursuance of the summons and further compliance of Section 207
Cr.P.C, framed charges under Sections 7 and 13(2) R/w.13(1)(d) of
the PC Act, read over and explained the same to him in Telugu for
which AO 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 10 and further got marked
Exs.P-1 to P-15 and MOs.1 to 7.
7. After closure of the evidence of the prosecution, the Accused
Officer was examined under Section 313 Cr.P.C with reference to
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the incriminating circumstances appearing in the evidence let in
by the prosecution, for which he denied the same and got filed a
written statement under Section 313 Cr.P.C. Though, he
expressed his desire initially that he would examine the defence
witnesses but later did not examine any defence witnesses.
8. The learned Special Judge, on hearing both sides and after
considering the oral and documentary evidence on record, found
the Accused Officer not guilty of the charges under Sections 7 and
13(2) R/w.13(1)(d) of the PC Act and accordingly acquitted him
under Section 248(1) Cr.P.C.
9. The State having felt aggrieved of the judgment of the Court
below in C.C. No.7 of 2003, 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 has proved before the
Court below that the AO was a public servant within
the meaning of Section 2(c) of the PC Act?
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2) Whether the prosecution has proved before the
Court below that ACB obtained a valid sanction to
prosecute the AO for the charges framed against him?
3) Whether the prosecution before the Court below has
proved that AO demanded PW.1 to pay the bribe of
Rs.15,000/- to do official favour i.e., to complete the
survey report, and later reduced it to Rs.8,000/- prior
to the date of trap and further AO demanded, at the
time of trap, to pay the bribe amount and accepted the
same?
4) Whether the prosecution has proved the charges
framed against the AO beyond reasonable doubt?
11. POINT Nos.1 and 2: There is no dispute that the AO was a
public servant, who was drawing salary from the account of the
Government. This aspect is not at all in dispute during the course
of trial. Coming to point No.2, the prosecution exhibited Ex.P-14,
sanction order to prosecute the AO, before the Court below. The
prosecution also examined PW.7, K.P. Harish Kumar, Section
Officer, Revenue (Vigilance-II) Department, AP Secretariat,
Hyderabad. Ex.P-13 is the authorization given to PW.7 by Smt. K.
Chaya Lakshmi, Deputy Secretary to Government to give evidence.
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Ultimately, the evidence of PW.7 is that the DG, ACB sought for
sanction by sending final report, copy of FIR, mediator reports 1
and 2 and further the substance statements of the witnesses
recorded during the course of investigation. The Assistant Section
Officer, Revenue (Vigilance-II), processed the file on 15.02.2003.
Later, the file was sent to Section Officer and from there it was
sent to Assistant Secretary and from there to Officer on Special
Duty and from there to Principal Secretary. He further testified
that the file was circulated to the Minister for Revenue and Law
Department and thereafter sanction order was issued under
G.O.Ms.No.460, dated 25.03.2003, by Sri Priyadarshini Dass. He
is working under the administrative control of Priyadarshini Dass
as such he can identify the signature of him. Ex.P-14 is the
sanction order. He further identified the signature of Priyadarshini
Dass. He denied during the course of cross-examination that he
has no acquaintance with the signatures of Priyadarshini Dass
and Priyadarshini Dass without application of mind issued
Ex.P-14. The Court below negatived the contention of AO in this
regard. This Court has carefully looked into the evidence of PW.7,
coupled with Ex.P-14. Admittedly, the Hon'ble Supreme Court in
State, through Inspector of Police, AP v. K. Narasimhachary1
1 2006 (1) ALT (Crl.) 114 (SC)
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(relied upon by the Court below), dealing with the subject matter
of sanction held that the prosecution can prove a valid sanction
either by producing the original sanction, which contains the facts
constituting the offence and the grounds of satisfaction or by
adducing evidence alinude to show that the facts were placed
before the Sanctioning Authority and the satisfaction arrived at
by it.
12. Now, as seen from Ex.P-14, virtually the sanctioning
authority looked into various allegations raised against the AO and
having regard to the above decided to issue sanction. The
G.O.Ms.No.460, purported to have contained the signature of
Priyadarshini Dass, Principal Secretary to the Government. By any
stretch of imagination, it cannot be held that it was issued without
any application of mind. Insofar as the Point Nos.1 and 2 are
concerned, even the AO before this Court did not challenge the
said findings during the course of hearing of the Appeal. Having
regard to the over all facts and circumstances and looking into the
evidence of PW.7, coupled with Ex.P-14, this Court is of the
considered view that the AO is a public servant within the
meaning of Section 2(c) of the PC Act and the prosecution before
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the Court below proved a valid sanction to prosecute the AO under
Section 19 of the PC Act for the charges framed.
13. POINT Nos.3 and 4: Sri S.M.Subhani, learned Standing
Counsel and Special Public Prosecutor for ACB, appearing for the
appellant-State, would contend that the prosecution has adduced
cogent and clinching evidence before the Court below by
examining PW.1, the de-facto complainant and PW.3, whose lands
were also supposed to be surveyed by AO and PW.1 and PW.3
supported the case of the prosecution in this regard. PW.4, the
concerned Village Administrative Officer, testified the fact that AO
surveyed the lands of PW.1. PW.6, the then Mandal Surveyor,
spoken to the fact that at the instructions of the previous MRO, he
visited the land of PW.3, inspected and informed the same to MRO
and later he was transferred. This portion of the evidence of PW.6
is not relating to the request of PW.1 under Ex.P-1. Prosecution
further examined PW.8, the then Deputy MRO, who testified that
the then MRO forwarded the application of PW.1 - Ex.P-1,
directing the Surveyor to measure the same. Ex.P-1(a) is the
endorsement. Exs.P-1 and P-1(a) were seized by the Investigating
Officer from the custody of AO, after successfully trapping the AO.
Though Exs.P-5 to P-7 were not found place in the post trap
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proceedings, but they are not at all fabricated documents. Even
the AO relied upon certain entries in Exs.P-5 to P-7, during the
course of arguments, before the Court below. The contention of AO
was that Ex.P-1 was not enclosed with the challan receipt as such
he did not survey the land of PW.1 as such it was not a valid
document. The learned counsel would submit further that PW.1
was cross-examined in this regard but he categorically deposed
that he got filed a challan through PW.3. Merely because challan
receipt was not there to Ex.P-1, AO was not supposed to keep it
with him especially when there was an endorsement under Ex.P-
1(a) from his superior to attend the work. According to the
evidence of PW.1 challan was also paid. Though the prosecution
did not bring the challan into the evidence but AO was not
supposed to keep Ex.P-1 with him for years together when it was
an invalid document according to him. So, the contention of the
AO that Ex.P-1 was not enclosed with the challan as such he did
not undertake the survey is not tenable. On the other hand, there
was voluminous evidence adduced by the prosecution to prove
that, in pursuance of the request under Ex.P-1, AO has
undertaken survey but he did not file his survey report. Though
AO was not supposed to give a copy of report directly to PW.1 but
he was supposed to submit a report to MRO and it is quite natural
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for PW.1 to enquire about the survey report. The trial Court on
flimsy reasons gave findings that the official favour was not proved
by the prosecution. The reasons furnished by the trial Court are
very weak in nature and the said observations of the trial Court
are un-warranted.
14. He would further contend that PW.2, the mediator to the
post trap, and PW.9, the trap laying officer, have clearly spoken
about the events in the pre trap as well as in the post trap. The
tainted amount was recovered from the right side drawer of the
table of the AO during the post trap. The chemical test to the both
hands of AO has yielded positive result. AO pleaded before the
Court below a defence that when he went into to the toilet, PW.1
entered into the room and kept the tainted amount into drawer of
the table and requested him to file survey report for which he
replied that unless he pays the challan, survey cannot be taken
and that PW.1 informed him that he would pay the challan as
such he folded his hands and then went away and in the
meantime ACB officials came there. The defence of the AO before
the Court below is nothing but weak, which was not probabilized
in any way. PW.1 fully supported the case of the prosecution.
Exs.P-1, P-9 and other documents were seized from the custody of
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AO. The trial Court without recording valid reasons went on to
acquit the accused. The learned Special Judge did not record
appropriate reasons. On the other hand, he recorded flimsy
reasons as if the procedure for survey was not followed. By
recording reasons which are not tenable in Para No.29 of the
judgment, the trial Court held that the prosecution failed to prove
the case beyond reasonable doubt. The learned Special Judge did
not look into the foundational facts proved by the prosecution and
even did not look into the presumption as contemplated under
Section 20 of the PC Act as such the judgment of acquittal
recorded by the trial Court is liable to be set-aside by convicting
the appellant.
15. On the other hand, Sri A. Hari Prasad Reddy, learned
counsel for the respondent (AO), would contend that the learned
Special Judge rightly discussed the evidence with valid reasons as
to how the prosecution failed to prove that the official favour in
respect of the work of PW.1 was not pending with AO as on the
date of trap. He discussed the oral evidence let in by the
prosecution. He took into consideration that the prosecution did
not prove that Ex.P-1 was enclosed with valid challan. He took
into consideration that the application, if any, of PW.3 requesting
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the AO to undertake the survey as alleged by PW.1 in Ex.P-1
application was not proved by the prosecution. He further took
into consideration the fact that the oral evidence adduced by the
prosecution is not believable as AO elicited that the procedure
regarding issuance of notices to VAO and Talari in asking them to
attend the survey is not followed. Except the oral testimony, there
was nothing to prove that Ex.P-1 application was valid and as
such survey was conducted by AO in accordance with the
procedure. When the AO was not capable of conducting any
survey, basing on the invalid application of PW.1, it cannot he held
that official favour in respect of the request of the PW.1 was
pending with AO as on the date of trap. The learned Special Judge
at length discussed the evidence as such held that prosecution
before the Court below failed to prove that the official favour was
pending with AO. He would further submit that, with regard to the
allegations of demand, the defence of the AO was that he never
demanded PW.1 to pay bribe of Rs.15,000/- or never reduced it
because there was no question of his demand when he did not
conduct any survey for want of challan and on account of the
invalid application under Ex.P-1. So the question of such demand
does not arise and the evidence of PW.1 is nothing but false for the
reasons best known. The intention of PW.1 was to evict the
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persons who were in possession of the lands and further he
requested the AO to conduct survey, without there being any
challan, as such he fabricated a theory that AO demanded bribe.
With regard to the allegations, during the post trap, when AO went
for toilets, PW.1 went into the room and kept the tainted amount
into the right side drawer of his table and when AO noticed his
presence questioned him, he requested him to file survey report
for which AO replied that unless challan is paid, he would not
come for survey and then PW.1 informed to him that he would pay
the challan and then he catch hold of his both hands and
requested to file report and went away and in the meantime ACB
officials came there. He would further submit there is
inconsistency with regard to the sequence of events between
Ex.P-11 post trap and 164 Cr.P.C statement of PW.1 before the
learned Magistrate. In 164 Cr.P.C statement, PW.1 stated that he
disclosed to the trap laying officer that AO, after receiving the
tainted amount, kept the same in the table drawer and then the
amount was recovered in the post trap. It was mentioned in
Ex.P-11 that first the amount was recovered and prior to that
chemical test was conducted. The learned Special Judge rightly
discussed all these discrepancies and rightly recorded an order of
acquittal. He would further submit that when the learned Special
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Judge thoroughly appreciated the evidence on record with valid
reasons, Appeal filed by the State is liable to be dismissed. In
support of his contention he would rely upon a decision of the
Hon'ble Supreme Court in Sujit Biswas v. State of Assam2.
16. 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 Mathewss 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
2 2013 (3) ALT (Crl.) SC 316
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‖.
17. Keeping in view of the above, I proceed to appreciate the
evidence on record as to whether the prosecution was able to
prove that the official favour in respect of the work of PW.1 was
pending with AO as on the date of alleged demand and as on the
date of alleged trap. PW.1 is the de-facto complainant. Firstly, I
would like to look into the contents of Ex.P-1 application, dated
01.09.2001, addressed by PW.1 to the MRO, Dagadarthi. It runs in
substance that he had lands in Survey Nos.1/1, 1/2, 19/1 in an
extent of Ac.66.64 cents by holding patta numbers since several
years and he is in exclusive possession and enjoyment. So, he is
requesting to survey the land and to fix up the boundaries and
that he paid challan.
18. The contents of Ex.P-2, report of PW.1 to the Deputy
Superintendent of Police, ACB in substance is that he owned
Ac.11.00 cents of land in Survey No.1/1. His younger brother
Butchi Naidu is also having Ac.22.00 cents of land in his name in
Survey No.19. They obtained pattadar passbooks. In Survey No.1,
Kamineni Annapurnamma has also lands. Thinking that their
lands were taken up by the Government and distributed among
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the landless, he got filed a Petition before the MRO, Dagadarthi
through K. Annapurnamma for the purpose of survey and paid
challan also. At about 9 months back Mandal Surveyor - Vijaya
Kumar came and surveyed the land and from that he is going
around for his survey report and before one week he said that he
will give report if he pays Rs.15,000/-. He again met the Surveyor
on 14.09.2002 morning at 07:00 a.m. at his house in
Bheeramgunta village and then he agreed to pay a sum of
Rs.8,000/- to him. Surveyor told him that he has to bring the
amount on 16.09.2002 morning at 10:00 a.m. to his office.
19. Now, coming to the evidence of PW.1, he spoken about the
fact that he has lands and that he possessed Ac.66.00 cents of
land along with his brother and some others but exclusively he got
Ac.16.50 cents in Survey Nos.1/1, 1/2 and19/1 and that they
were also issued with pattadar passbooks. He presented an
application to MRO, Dagadarthi on 01.09.2001 with a request to
survey the land belonging to him. Ex.P-1 is the application
presented by him to the MRO. The MRO called the Vijaya Kumar
i.e., the Deputy Surveyor (AO) and instructed him to survey their
land and fix the boundaries. AO came to their land three months
after he presented Ex.P-1 and surveyed the land. He went around
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the AO for about 9 months requesting him to give the survey
report but he did not give the report. One week prior to the
presentation of the report, he requested AO to give the survey
report. AO demanded him for bribe of Rs.15,000/- to give survey
report . He came back. Again on 14.09.2002 at 07:00 a.m. he
approached the AO at his residence at Beeramgunta village and
enquired him about the survey report. Then, he demanded him to
pay at least Rs.8,000/- as bribe on 16.09.2002 in the office at
10:00 a.m. for giving the survey report. As he was not willing to
pay bribe to AO, on 15.09.2002, he presented a report to
Inspector, ACB, Nellore. Ex.P-2 is the report presented by him,
which bears his signature. He further spoken about the pre trap
and post trap and his further evidence regarding the official favour
is that during the post trap, he asked the AO about his survey
report and AO demanded him to pay the bribe amount and then
he paid the amount. Then, he asked the AO to give the survey
report and AO asked him to wait outside.
20. PW.2 is the mediator to the pre trap and post trap. He
testified that after the trap, AO produced Ex.P-1 - application of
PW.1, Ex.P-5 - certificate of title to forest produce in three pages
and Ex.P-6 is note file appended to Exs.P-5 and Ex.P-7 copy of
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adangals in three pages and the Deputy Superintendent of Police,
ACB, Nellore seized Ex.P-8 - attendance register of the MRO
Office, Dagadarthi, Ex.P-9 is the survey map produced by AO and
DSP seized it.
21. Coming to the evidence of PW.3, Kamineni Annapurnamma,
her evidence is that in the year 2001, she applied to MRO,
Dagadarthi to survey her land and to show her boundaries.
Firstly, Mallikarjunudu, the then MRO came to her land but he
did not survey the land. Later, PW.1 brought the AO to survey his
land. It was happened in the year 2001 in the month of
September. At that time, PW.1, she, LW.5 - Ramalingaiah and
some other coolies were present. Survey was conducted from
10:00 a.m. to 05:00 p.m. AO has not shown the boundaries. She
and PW.1 went to AO several times but he has not shown the
boundaries. Later, PW.1 told her that AO was demanding bribe of
Rs.16,000/- and AO ultimately requested him to give Rs.8,000/-
to him. She do not remember how much amount she gave to PW.1
but she gave some amount to PW.1.
22. PW.4, the Village Administrative Officer, with regard to the
so called survey of land by AO deposed that he knows PW.1, PW.3
and AO. In the year 2001, he followed the AO to survey the land of
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PW.1 at Kaminenipalem Village in Survey No.1/1. At that time AO,
he himself, PW.1 and some coolies were present. AO measured the
land with the help of Field Measurement Book (FMB). After
measuring the land, Surveyor has to prepare a rough sketch and
has to find out the areas of the land. He do not know whether AO
did like that or not. In the month of September, 2002 on one day
at 11:00 or 12:00 noon, he went to MRO office for obtaining chitta.
Then he came to know that ACB officials caught hold of AO. At the
time of survey of the land, PW.3 was also present.
23. Turning to the evidence of PW.6, the then Mandal Surveyor,
he deposed that he knows AO, who worked as Deputy Surveyor in
the office of MRO, Dagadarthi. By then, LW.7 - G. Mallikarjunudu
was the MRO. In the year 1999, MRO orally directed him to
examine the land of PW.3 - Kamineni Annapurnamma at Velipudi
in Survey No.1/1. Then, he inspected the same and found bushes
and informed the same to MRO. Later, he was transferred. As no
challan was paid to survey the land and the orders of the MRO
were oral, he did not enter the same in F-Line Register.
24. There is evidence of PW.8, the then Deputy MRO to the
effect LW.7 - G. Mallikarjunudu worked as MRO, Dagadarthi. He
can identify his hand writing, signatures and initials. Ex.P-1
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application has Ex.P-1(a) endorsement made by G.
Mallikarjunudu, the then MRO. He was retired from service and
his whereabouts were not known to him. Ex.P-1 is marked subject
to objection.
25. Coming to the evidence of PW.9, the Trap Laying Officer,
with regard to seizure of documents during the post trap from the
custody of AO, he deposed that he instructed Senior Assistant of
MRO Office to produce Attendance Register. He has further spoken
to the fact that during post trap, after trapping the Officer, he
asked the AO to produce the application and other documents of
PW.1 and AO produced a file containing Exs.P-1, P-5 to P-7 and he
seized it. When he did not speak about the seizure of Ex.P-9 and
when the learned Special Public Prosecutor took permission from
the Court to cross-examine him, and in the cross-examination he
testified that at the time of trap proceedings, AO produced Ex.P-9
- survey map and it was seized under Ex.P-11. Therefore, to prove
the pendency of the official favour, the evidence available before
the trial Court was of above.
26. Now, turning to the testimony of PW.1, with regard to the
material aspects in his cross-examination, he admitted that an
amount of Rs.100/- has to be paid under challan for survey of the
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land by the Surveyor and challan number has to be taken in the
Treasury and the amount has to be paid in the SBI and further
challan has to be appended to the application presented to MRO
for survey of land. The Surveyor has no power to survey the land
unless challan is paid. He did not pay challan in this regard but
Annapurnamma paid challan. Challan was not appended to
Ex.P-1. He cannot say the date when Annapurnamma paid
challan. She submitted challan to MRO. She did not furnish the
same to him. He cannot say the number of challan and the date
when the challan was paid. In Ex.P-1, it was not mentioned that
he paid challan and it was not mentioned specifically that he got
paid challan through Annapurnamma. He did not state before the
Deputy Superintendent of Police that he got paid the challan for
Rs.100/- by Annapurnamma and handed over to MRO. He did not
state so even in 161 Cr.P.C statement. He denied that no challan
was paid by Annapurnamma and it was not handed over to MRO.
He denied that AO did not visit their land 9 months prior to Ex.P-2
and did not conduct survey and that he created a theory that
Annapurnamma paid challan and handed over the same to MRO
and that his version that AO came to their land 9 months prior to
Ex.P-2 and surveyed the same was to mislead the ACB officials. He
further denied a suggestion by the defence counsel that AO told
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him that land cannot be surveyed unless challan is paid when he
approached. He cannot say the date on which AO demanded for
bribe of Rs.15,000/- for giving survey report. He denied that even
if survey is conducted he is not entitled to receive the survey
report from the MRO and it is improbable for demanding bribe by
AO for giving such survey report.
27. It is to be noticed that the case of PW.1, as set out in Ex.P-1,
is very specific that in respect of the particular lands in Survey
Nos.1/1, 1/2 and 19/1 which were in his possession since several
years, he filed that application requesting to get survey and to fix
up the boundaries and in this connection he paid the challan.
Coming to Ex.P-2, he made a mention that thinking that his land
and Annapurnamma's land were also taken by the Government,
he got filed a petition before the MRO, Dagadarthi through
Annapurnamma for the purpose of survey of land and paid challan
also. It is in the context of the above contents in Ex.P-2 that he got
filed an application through Annapurnamma and got paid the
challan, the answers in cross-examination are to be appreciated.
So, a conjoint reading of Ex.P-2 which can be used to corroborate
the testimony of PW.1 and the evidence of PW.1 means that
Annapurnamma took part her role in paying the challan meant for
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Ex.P-1 for surveying the lands. No other inference is possible, if
the answers elicited from the cross-examination of PW.1 and the
contents in Ex.P-2 are looked into. When the learned counsel for
the respondent/AO subjected PW.1 to probing cross-examination,
he clarified that the application was of him but challan was paid
by Annapurnamma. It is no doubt true that Ex.P-1 was not
enclosed with any challan copy. There is no dispute that Ex.P-1
contains an endorsement labelled as Ex.P-1(a) and the said
endorsement was made by the then MRO as if ―Mandal Surveyor,
please attend to this‖. It is to be noticed that PW.8 is the person
who was examined by the prosecution to speak about the
endorsement under Ex.P-1(a) made by LW.7 - G. Mallikarjunudu,
the then MRO, Dagadarthi, because he was retired from service
and his whereabouts were not known to the prosecution. So, PW.8
identified the endorsement under Ex.P-1(a). The defence counsel
raised an objection. In this regard, there is no dispute that then
MRO endorsed Ex.P-1(a) to AO. AO did not dispute the fact that he
received Ex.P-1 from the then MRO - G. Mallikarjunudu to do the
needful. He categorically admitted the receipt of Ex.P-1. It is to be
noticed that when the contents of Ex.P-1 runs that challan in
respect of the request under Ex.P-1 was paid, the then MRO -
Mallikarjunudu was supposed to look into the same. So, it means
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that having looked into the same, he made Ex.P-1(a) endorsement
to the AO. Whatever the reason may be for absence of a challan
enclosed with Ex.P-1 but the fact remained is that Mallikarjunudu
had knowledge of the contents of Ex.P-1 as such he endorsed it to
AO and further AO had knowledge of the contents of Ex.P-1 as if
challan was paid.
28. At this juncture, it is pertinent to look into the evidence of
PW.3 in cross-examination. The evidence of PW.3 in chief-
examination with regard to her application and consequent
payment of challan to that cannot be linked with an application
claimed by AO under Ex.P-2. The application which the AO
referred in Ex.P-2 is no other than the application under Ex.P-1
but not the application of PW.3. Though, PW.3 testified that she
made an application and paid challan and one Mallikarjunudu
came there but he did not survey the land, but it had no support
from the evidence of the previous Mandal Surveyor, who was
examined as PW.6. According to PW.6, on oral directions only he
visited the land of Annapurnamma and found bushes but he could
not carry out further instructions because the instructions were of
oral and there was no challan. The events spoken to by PW.3 and
PW.6 have nothing to do with the application under Ex.P-1 and
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further allegations under Ex.P-2. Ultimately, the evidence of PW.3
is that her effort to get the land surveyed failed. She deposed that
PW.1 approached AO to survey the land and it was happened in
the year 2001 in the month of September. At the time of survey,
she, PW.1 and Ramalingaiah and some other coolies were present.
During cross-examination, she deposed that she did not file any
document to show that she paid the amount to survey the land.
Whatever the answers that were elicited from the mouth of PW.3 in
this regard were of her application only before the then MRO -
Mallikarjunudu and it is not relating to Ex.P-1. She denied that
her evidence that AO came to the lands and surveyed the lands
but he did not show the boundaries and they went around AO is
not correct. She denied that she is deposing false. So, PW.3
supported the evidence of PW.1 that in pursuance of the request
made by PW.1 AO came to the land, surveyed the same but he did
not fix up the boundaries or did not file the survey report.
29. PW.4 is the then Village Administrative Officer, who deposed
in support of the evidence of PW.1 and PW.3. During cross-
examination, he deposed that a person who wants to survey his
land has to give an application and to pay prescribed fees to the
MRO and MRO would issue orders to the Surveyor to survey the
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land and then Surveyor would give notices to the VAO and the
parties including the neighboring land owners before surveying the
land. AO did not give any notice to him. He do not know whether
AO gave any such notices to PW.1 and PW.3. He denied that no
survey was conducted and that he is deposing false.
30. It is to be noticed that the answers elicited from the mouth
of PW.4 that a person who wants to survey his land has to give an
application and to pay prescribed fee and then MRO will issue
orders to the Surveyor to survey the land would fortify the
endorsement in Ex.P-1(a) where the MRO directed AO to attend
the work. Ex.P-1 runs that the challan was paid. Merely because
the prosecution was not able to produce the challan, AO cannot
take an advantage to contend that Ex.P-1 is invalid. AO had every
knowledge that the MRO being superior officer to him under whom
AO used to work having looked into the contents of Ex.P-1, made
an endorsement directing him to attend the work as requested by
PW.1. If really, Ex.P-1 was not enclosed with a copy of challan, AO
had no business to keep that application pending for about 9 or
10 months. The office of the then MRO and AO is one and the
same. AO would have brought the factum of alleged non payment
of challan to the then MRO immediately if really challan was not
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paid. On the other hand, he had knowledge about the contents of
Ex.P-1 and the endorsement made by the then MRO and knowing
fully well, he did not return the application on the ground that it
was not enclosed with any challan copy or that challan was not
paid. In that view of the matter, this Court is of the considered
view that there would not have been an endorsement under
Ex.P-1(a) by the then MRO directing the AO to attend the work, if
really challan was not paid. It is to be noticed that though PW.4
stated that to accompany the Surveyor a notice is supposed to be
issued either to him or to the parties, he deposed that he does not
know whether he gave notices to PW.1 and PW.3. In this regard,
PW.1 and PW.3 were not cross-examined by AO as to whether they
received any notices from the AO instructing them to attend the
survey. So, without eliciting anything from the mouth of PW.1 and
PW.3 that they did not receive any notices from the AO, he cannot
pose any question to PW.4 as to whether AO issued any notices to
PW.1 and PW.3 to attend the survey. In my considered view,
technically, there would not have been an occasion where a VAO,
who was a subordinate to the office of MRO, would decline to
accompany AO even on oral request, when AO proposed to survey
a particular land in the village.
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31. It is to be noticed that according the evidence of PW.2, the
mediator, as well as PW.9, the trap laying officer, after successfully
trapping the AO at the instruction of DSP, ACB, AO produced
Ex.P-1 - application, Exs.P-5 to P-7 and Ex.P-9 - survey map
prepared by him. It is altogether a different aspect that when PW.2
testified the seizure of the above documents, PW.9, the trap laying
officer though spoken about the seizure of Exs.P-1, P-5 to P-7 but
was not able to recollect to speak about Ex.P-9 and when the
learned Special Public Prosecutor posed questions in cross-
examination after getting due permission from the Court, he went
on to depose that at the time of trap proceedings, AO produced
Ex.P-9 survey map and it was also seized under Ex.P-11. It is to
be noticed that AO agitated before the Court below that Ex.P-11 -
post trap proceeding would only disclose seizure of Exs.P-1 and
P-9 but not Exs.P-5 to P-7. Literally, the above said contention is
correct. Admittedly, Ex.P-11 - post trap proceedings narrates
production of Ex.P-1 - application and Ex.P-9 by AO. However,
PW.2 and PW.9 deposed as if Exs.P-5 to P-7 were also produced by
AO. It is to be noticed that whatever the reason may be for not
mentioning the seizure of Exs.P-5 to P-7 in Ex.P-11 post trap
proceedings but the fact remained is that they were available in
the file made up by the Investigating Officer at the time of post
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trap proceedings. It is not a case where AO branded Exs.P-5 to P-7
as fabricated documents. Literally, the contents of those
documents were not in dispute. They were said to be copies of
documents pertaining to the revenue officials. Under the facts and
circumstances, the fact that PW.2 and PW.9 spoken about Exs.P-5
to P-7 as the documents which were seized along with Exs.P-1 and
P-9 would not throw any suspicious circumstances over the case
of the prosecution. Learned defence counsel also relied upon
Exs.P-5 to P-7 during the course of arguments as evident from the
judgment of the trial Court to contend that the claim made by
PW.1 claiming certain extents and requesting for survey was not
justifiable because he had no such extents. Virtually, the above
said contention is beyond the defence of the accused. The question
before the Court below was only to see as to whether official favour
to be done by AO in respect of the request of PW.1 to conduct
survey and to fix up the boundaries was pending or not. It is the
defence of AO that Ex.P-1 application was invalid as such he did
not conduct any survey. Hence, basing on the contents of Exs.P-5
to P-7 whatever the contentions advanced by AO before the Court
below claiming that PW.1 had no such extent of land is devoid of
merits. All this has been discussed only to show that mere non-
mentioning of Exs.P-5 to P-7 literally in Ex.P-11 in the absence of
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the contention that they were pressed into service later would not
affect the case of the prosecution in any way. It is to be noticed
that during the course of cross-examination of PW.1, even the AO
contended that he created fictitious sale deeds in the name of him
and his brother and they, basing on the fictitious sale deeds,
obtained pattadar passbooks by influencing the then MRO in the
year 1987. It is to be noticed that whether the lands claimed by
PW.1 under the so called documents were genuine or not was not
to be decided by the AO. His job was only to take necessary steps
to conduct survey and to file survey report. So, it is clear that AO
even questioned the authority of the then MRO in issuing pattadar
passbooks in favour of PW.1, which is not proper in the
circumstances of the case. It is not his case that in pursuance of
the instructions of MRO he conducted the survey and PW.1 did
not produce any documents for the purpose of survey and that as
such he was unable to fix up the boundaries etc., It is not the
defence of the AO in that passion. His simple defence is that he
did not move his little finger because Ex.P-1 was invalid. It is to be
noticed that the application under Ex.P-1 was made before the
then MRO on 01.09.2001. On the same day, the then MRO having
looked into the contents, directed the Mandal Surveyor i.e., AO to
attend the task. The date of trap was 16.09.2002. So, for more
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than one year AO kept Ex.P-1 - application in his custody.
Prosecution was able to establish before the Court below that
Exs.P-1 and P-9 were seized from the custody of AO during the
post trap.
32. Without any factual foundation and without putting forth
anything during the course of cross-examination of PW.1, PW.3 or
before PW.2 - mediator and PW.9 - the Investigating Officer, a
contention was advanced by the learned defence counsel before
the Court below stating that admittedly there was a mistake on
the part of AO in keeping Ex.P-1 - application pending with him
and it was also contended that it was quite natural to keep such
applications pending without any action, when it was not enclosed
with challan etc., It is altogether a different aspect the Court below
did not find improbable act on the part of AO in keeping such
application pending and went on in making adverse comments
against the case of the prosecution, which will hereafter be
appreciated. So, the act of the AO in keeping Ex.P-1 - application
in his custody and further keeping in his custody the survey map
under Ex.P-9 in spite of the request made by PW.1 is nothing but
un-reasonable. A man of reasonable prudence in such
circumstances would have brought to the notice of the then MRO
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by returning the application under Ex.P-1 seeking instructions to
PW.1 to pay the challan if really it was not enclosed with any
challan.
33. It is to be noticed that having looked into the contents of
Ex.P-1 and after laying of trap, Investigating Officer, to decide the
genuinity in the case of the prosecution, chosen to examine PW.3
and other witnesses i.e., VAO (PW.4) and the then Mandal
Surveyor and further PW.8 during investigation. All this was done
by the Investigating Officer to ascertain as to whether the official
favour was pending with AO or not. The evidence of PW.1, PW.3,
PW.4 and PW.8 is convincing and believable. In my considered
view, the various circumstances referred to above and the evidence
of PW.3, evidence of VAO (PW.4) and the fact that Exs.P-1 and P-9
were in the custody of AO, which were seized by the Investigating
Officer during the course of trap would clinchingly prove the fact
that official favour in respect of the request of PW.1 was pending
with AO prior to the date of trap and further as on the date of trap.
It is to be noticed that though AO was not supposed to give a copy
of the survey report directly to PW.1 but he was supposed to give a
comprehensive report to MRO when he was instructed to look into
the request of PW.1 under specific endorsement in Ex.P-1(a). In
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such circumstances, it is quite natural for like PW.1 or PW.3 when
a Surveyor conducted the survey, to ask the surveyor to furnish
the survey report. In such circumstances, the Surveyor could have
intimated the matter to PW.1 and PW.3 and that he would file his
report duly before the MRO and they can take copy of the report
from MRO. But, this has not been done in this case.
34. This Court looked into the judgment of the trial Court to
ascertain as to where the learned Special Judge erred in this
regard. The findings in this regard can be seen at Para Nos.12 and
29 of the judgment. At Para No.12 of the judgment, the learned
Special Judge observed that, according Ex.P-1, PW.1 mentioned
that he got applied for survey through PW.3 - Annapurnamma and
on that application, PW.3 paid challan. The above observation
made by the learned Special Judge is nothing but erroneous.
There is no mention in Ex.P-1, application of PW.1 that he made
the application through PW.3 and that PW.3 paid the challan.
Virtually, Ex.P-1 is the application of PW.1 in which no such
mention was there. Hence, the findings of learned Special Judge in
this regard are un-reasonable. Further, the learned Special Judge
commented that the alleged application of PW.3 - Annapurnamma
and her challan were not seized and no efforts were made by the
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Investigating Officer to seize the application and challan. He made
further observation that in Ex.P-2, report of PW.1, he did not state
anything about Ex.P-1 application. It is to be noticed that Ex.P-2
is the report of PW.1 before the DSP, ACB, where he mentioned
categorically that he filed the application before the MRO
requesting to survey the land through Annapurnamm. It is not his
allegation that Annapurnamma made the application. As this
Court already pointed out the contents in Ex.P-2 are to be
appreciated with reference to the answers elicited by AO during
the course of cross-examination of PW.1 that Annapurnamma paid
challan on his application. The learned Special Judge wholly
mistook the case of PW.1 and PW.3. The case of PW.3 that
previously she made the efforts to get the survey of the lands but
in vain cannot be and shall not be linked up with the case of
PW.1. On the premise that the Investigating Officer did not seize
application of PW.3 and her challan and on the ground that Ex.P-2
did not reveal the application of PW.1 under Ex.P-1, the learned
Special Judge landed himself in an error in appreciating the case
of the prosecution.
35. Apart from this, according to the evidence of PW.6, on the
oral instructions of the then MRO, he visited the lands of PW.3
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and could found bushes but because no application was there of
PW.3 with challan and the instructions were only oral he could not
proceed further to enter the same in F-Line register. The learned
Special Judge observed that F-Line Register was not seized by the
Investigating Officer. The inability of PW.6 to conduct survey at the
request of PW.3 has nothing to do with the request of AO under
Ex.P-1 and his allegations in Ex.P-2. The learned Special Judge
wholly misinterpreted the case of the prosecution and did not
appreciate the case of the prosecution with reference to Ex.P-1 and
the allegations under Ex.P-2 and did not comprehend the case of
the prosecution by looking into the answers elicited from the
mouth of PW.1 in his cross-examination and further erred to
appreciate the case of the prosecution by looking into the evidence
of PW.3 and PW.6 together.
36. Further at Para No.29 of the judgment, the learned Special
Judge observed that, according to PW.6, procedure is not followed
in conducting survey. The learned Special Judge did not look into
the aspect that the defence of AO was denial simplicitor by just
saying that he did not conduct any survey. The learned Special
Judge did not look into the fact that PW.1 and PW.3 were not
confronted by the AO as to whether they received any notices from
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the AO requesting to attend for the survey. It is to be noticed that
there is evidence of PW.2 and PW.9 showing any amount of
consistency with regard to seizure of Exs.P-1 and P-9 from the
custody of AO, leave apart Exs.P-5 to P-7, whose reference was not
there in Ex.P-1 literally but, whose existence was there as on the
date of trap. Even the defence of accused is that Ex.P-9 was not
seized from the custody of AO and it did not contain any
signature. This Court has no reason to disbelieve seizure of
Exs.P-5 to P-7 from the custody of AO along with Ex.P-9 at the
time of trap. Though Ex.P-9 did not contain any signature of AO
but it is a survey sketch showing the old survey number as 1 and
new Survey Nos.67, 68, 1-1 and 1-2 a total extent of Ac.81.05
cents. It is no doubt true that a document like Ex.P-9 would be in
response to the request under Ex.P-1. Though AO did not sign
Ex.P-9 but one can say with certainty that AO got the same in his
custody by preparation pursuant to the request in Ex.P-1.
Virtually, PW.2 and PW.9 have no reason to plant Ex.P-9. It is to
be noticed that the learned Special Judge made a comment in
Para No.29 of the judgment about Ex.P-9, that there is no evidence
to prove that AO prepared Ex.P-9. The above said comment is
nothing but un-reasonable, in my considered view. When it was
seized from the physical custody of AO, which was categorically
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proved by the prosecution with consistent evidence, the finding of
the learned Special Judge that there is no evidence to prove that
AO prepared Ex.P-9 deserves no merit. The learned Special Judge
without properly appreciating the evidence on record and by
recording flimsy reasons which are not tenable in the
circumstances made adverse comments against the case of the
prosecution. Even there are no assertive findings from the learned
Special Judge that official favour in respect of the request of PW.1
was not pending with AO. He referred to various contentions
raised by the defence counsel and the learned Special Public
Prosecutor and at Para Nos.12 and 29 of the judgment gave
certain findings commenting against the case of the prosecution,
which are nothing but un-reasonable and not tenable. The learned
Special Judge did not look into the aspect that AO kept Ex.P-1 in
his custody for more than one year and Exs.P-1 and P-9 were
seized from his custody. The learned Special Judge did not record
reasons as to why the evidence of PWs.3 and 4 is liable to be
disbelieved. In my considered view, the prosecution has
categorically proved before the Court below that the official favour
in respect of the work to be done of PW.1 was pending before AO
prior to the date of trap and as on the date of trap.
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37. Next aspect to be considered here is as to whether the
prosecution has proved before the Court below that AO demanded
PW.1 to pay bribe of Rs.15,000/- to do official favour and when
PW.1 met him on 14.09.2002, again he demanded and reduced
the bribe to Rs.8,000/- and further on 16.09.2002 demanded and
accepted an amount of Rs.8,000/- from PW.1 to do official favour.
The case of the prosecution, according to Ex.P-2, is that PW.1 filed
an application under Ex.P-1 requesting the MRO to conduct
survey and to fix up the boundaries, which was forwarded to AO
and AO came there and surveyed the land and about one week
prior to Ex.P-2 when he ultimately requested Surveyor to give the
report, he demanded Rs.15,000/- and again on 14.09.2002 when
he met at 07:00 a.m. he reduced the bribe to Rs.8,000/- and
demanded to bring it on 16.09.2002. So, felt aggrieved of the
same, PW.1 lodged Ex.P-2 report with ACB officials. PW.1, as
pointed out, has spoken these facts in his chief-examination. He
categorically testified the presentation of Ex.P-1 on 01.09.2001
and the MRO instructed the AO to survey the land and
subsequent visit made by AO to the lands three months thereafter,
conducting survey and keeping the issue for about 9 months and
non-filing of the report and ultimately one week prior to Ex.P-2,
when he requested AO to give the survey report, he demanded
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bribe of Rs.15,000/- and on 14.09.2002 he reduced it to
Rs.8,000/- with a direction to bring the bribe on 16.09.2002. He
has spoken about presentation of Ex.P-1. His evidence has
corroboration from Ex.P-2.
38. He further spoken about the instructions of Deputy
Superintendent of Police to come on 16.09.2002 to ACB office with
Rs.8,000/-, his going to ACB office on 16.09.2002 at 09:00 a.m.,
giving the proposed bribe amount to ACB, conducting of pre trap
proceedings by the DSP, ACB explaining the importance of
phenolphthalein test and the fact that one police constable applied
phenolphthalein powder to the currency notes and kept the
amount in the upper left side pocket of his shirt and that he was
instructed by the DSP, ACB to give the amount only on further
demand by the AO.
39. He further deposed that in pursuance of the instructions,
they reached the office of AO at 12:40 noon. He went into the MRO
office on foot. AO was sitting in his room in a chair. He asked AO
about the survey report and AO demanded him whether he
brought the bribe amount and he told him that he brought
Rs.8,000/-. Then, AO asked him to pay the amount. He took out
the amount from his pocket, handed over to AO, who received the
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same, counted the money and kept it in the drawer of his table. He
asked the AO to give survey report. AO told him that he would
prepare the fair copy of the survey report and asked him to wait
outside. Then, he came out and relayed a pre-arranged signal to
ACB Officials. He further spoken about the rushing of raid party to
the MRO office and asking him to wait outside. After some time, he
was called inside the room and on questioned by DSP, ACB, he
disclosed as to what happened. His statement was recorded by the
DSP, ACB and his statement was also recorded by the Magistrate,
Nellore. The statement shown to him contains his signature.
40. In his cross-examination, he denied that as on the date of
trap at 12:30 noon AO went to toilet to attend natural calls and at
that time he went into the room of AO and planted the tainted
amount in his table drawer in his absence and AO when coming
from the toilet and on seeing him at his table, questioned him the
purpose of his visit and that he requested the AO to survey his
lands and AO replied that unless challan is paid, he would not go
for survey and he informed the AO that he would pay the challan
and requested the AO to conduct survey by catching hold of his
both hands and then he came out and gave a pre-arranged signal.
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He denied that he created false documents and implicated AO and
AO never demanded and accepted the bribe.
41. As seen from the evidence of PW.2 and PW.9, the mediator
and the trap laying officer, their evidence is consistent with regard
to the events that took place during the post trap. According to
them, on receipt of pre-arranged signal from PW.1, they rushed
into the room of AO and then at the instructions of trap laying
officer constable prepared sodium carbonate solution, which was
prepared in two glasses and the right hand of AO was dipped into
one glass and it changed into pink colour. Later, left hand of AO
was dipped into another glass and it changed into light pink
colour. The solutions were transferred into two separate bottles
and they were preserved. MOs.3 and 4 are the same. MO.5 is the
wash of cotton swab relating to the positive result of testing of the
drawer of the table. It is their further evidence that when the ACB
DSP enquired AO as to where he kept the amount received from
PW.1, he opened the drawer of his table and produced the
amount. The particulars of the currency numbers which were
noted in Ex.P-4 - pre trap proceedings were tallied with as such
they were mentioned in Ex.P-11 post trap proceedings. So, the
prosecution by examining PW.2 and PW.9 further proved that AO
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dealt with the tainted amount with his both hands and the
amount was recovered from the drawer of his table. It is
categorically established by the prosecution.
42. Insofar as the evidence of PW.1 is concerned with regard to
the allegations against AO that he demanded bribe of Rs.15,000/-,
later reduced it to Rs.8,000/- on 14.09.2002 with instructions to
bring the amount on 16.09.2002 further with regard to the
demand made by AO during post trap on 16.09.2002, it is quietly
consistent with that of Exs.P-1, P-2 and post trap proceedings.
Now it is a matter of appreciation as to whether the evidence of
PW.1 is believable. He was subjected to probing cross-examination
throughout. So, the defence of AO that when he went into toilets,
PW.1 planted the amount in the right side table drawer is not
there in Ex.P-11 post trap proceedings. The purported version of
AO in Ex.P-11 post trap proceedings when the DSP questioned
him as to what happened is that the complainant sat before him
and offered amount which was kept in the right side of the table
drawer. This is the so called version of AO in the post trap. The
defence of AO is that the DSP and the mediator did not record the
true version of AO in the post trap proceedings as suggested to
PW.1 and as canvassed by AO during the course of trial. It is very
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difficult to accept such a contention in the light of the facts and
circumstances.
43. PW.5, who is Talari in MRO office, Dagadarthi, deposed that
on 16.09.2002 he went to the office at 09:30 a.m. Then their
Typist Meena Kumar and Senior Assistant - Giri and MRO -
Bhaskar Reddy came to office one after another. At 11:00 a.m.
their MRO went to Kavali RDO office with a file. At about 11.45
a.m. PW.1 came to the office and went to the room of AO. Within
10 or 15 minutes, PW.1 came out of that room. Later, ACB officials
went to the AO. He came to know that ACB officials came there.
Then, he went to the staff room and informed them about the said
fact. He came to know that ACB officials caught hold of AO while
he was receiving an amount of Rs.8,000/- from PW.1 as bribe.
During cross-examination, he deposed that he is working as Talari
under Village Secretary of Dagadarthi. He has no duty at MRO
office on the date of trap. He did not observe any others going into
the room of Surveyor after PW.1 went into the room of AO and who
came out of that room prior to PW.1 came out of that room. He did
not observe whether AO was present in his room by the time PW.1
went into the room.
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44. It is to be noticed that though PW.5 appears to be a chance
witness but looking into the cross-examination part of his
evidence, he testified that on that particular date at a particular
point of time MRO went to Kavali in connection with office work
etc., Hence, his presence cannot be doubted. As seen from Ex.P-10
- rough sketch relating to the office of MRO and the location of
room, there is no dispute that in the room of AO, there was no
toilet. So, the toilet is located at a far off place at outside. It is the
defence of AO that when he went to the toilet, PW.1 entered into
his room and planted the amount in his right side table drawer.
According to PW.5, he saw PW.1 going into the room of AO and his
subsequent coming and thereafter arrival of the ACB officials.
Nothing is elicited from the mouth of PW.5 in cross-examination
as to whether that he saw AO going into his room after PW.1 went
into the room of AO. So, the defence of AO which was put forth
before PW.1 is quietly denied.
45. This Court has to look into as to whether there is anything
on record to probabilize the defence of AO. It is no doubt true that
the standard of proof with which the AO has to probabilize his
defence is only by preponderance of probabilities. It is to be
noticed that AO suggested to PW.1 that he insisted AO to make
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survey without paying challan of Rs.100/-. It is rather surprising
to note that throughout for one year PW.1 was refusing to pay
challan payable under Ex.P-1, though AO was insisting him to do
so. It was rather improbable on the part of AO to keep Ex.P-1 with
him, if Ex.P-1 was really defective. So, it shows the conduct of AO.
In the light of the above, this Court is of the considered view that
the defence of AO that when he asked PW.1 to pay the challan
amount, he replied that he would pay the challan, caught hold of
his hands and then went away and after that ACB officials came
there is not at all tenable. The theory of AO that PW.1 caught hold
of his both hands is only invented to explain certain
circumstances which went against AO with regard to the chemical
test. As seen from the judgment of the trial Court, the defence
theory is two fold; one is that as PW.1 caught hold of both hands
of AO phenolphthalein powder came into contact with the hands of
AO from the hands of PW.1 as such chemical test yielded positive
result. Such a contention is not tenable in my considered view.
Another theory is that, when Police Constable after the trap
caught hold of the hands of AO phenolphthalein powder came into
contact with him. It is to be noticed that according to Ex.P-4, pre
trap proceedings, PC No.1717 undertaken dealing with of
phenolphthalein powder test in pre trap proceedings and the DSP
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directed the said PC to remain in the office after completion of pre
trap proceedings. It is not a case that the said Police constable
accompanied the DSP to the post trap events. So, the constable
who caught hold of the hands of AO after entering into the office is
not the constable who experimented applying of the
phenolphthalein power to the currency notes. On the other hand,
AO got elicited from the mouth of PW.9 that the said constable i.e.,
PC No.1717 was deputed to hand over the FIR to the learned
Special Judge after registration of the FIR. So, the second theory is
also not tenable.
46. This Court has further looked into the judgment of the trial
Court carefully. The defence counsel raised a contention that in
the 164 Cr.P.C statement of PW.1 he stated before the
jurisdictional Magistrate that after the trap, DSP questioned PW.1
as to whether he gave the amount and then he answered that he
gave the amount and AO kept the amount in the table drawer and
the DSP seized the amount in the presence of the mediators and
thereafter he got conducted the chemical test which yielded
positive result. Then, he was asked to wait outside and after some
time he was called and asked as to whether he paid the bribe and
then he replied that he paid the bribe. The learned Special Judge
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referred the above portion of 164 Cr.P.C statement. In this regard,
the finding of the learned Special Judge is that in 164 Cr.P.C
statement, PW.1 stated that he told to DSP that he paid the
amount to the AO and the amount was kept by the AO in his table
drawer and thereafter amount was seized and test was conducted.
The learned Special Judge made an observation that the version of
PW.1 as above in 164 Cr.P.C statement is against the sequence of
the case of the prosecution.
47. It is a case where 164 Cr.P.C statement of PW.1 was referred
to PW.1 during chief-examination and he identified his signature.
The statement of PW.1 under Section 164 Cr.P.C was not marked
as exhibit before the Court below. It is settled law that statement
of a witness during the investigation can be referred to the witness
for the purpose of contradiction under Section 145 of Indian
Evidence Act. According to Section 145 of Indian Evidence Act, a
witness may be cross-examined as to previous statement made by
him in writing or reduced into writing and relevant to matters in
question, without such writing being shown to him, or being
proved. It further contemplates that if it is intended to contradict
him by writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the
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purpose of contradicting him. The Hon'ble Supreme Court in Ram
Kishan Singh v. Harmit Kaur and others5 held that a statement
under Section 164 Cr.P.C is not substantive evidence. It can be
used to corroborate the statement of a witness and it can be used
to contradict a witness.
48. Coming to the present case on hand, it is a case where the
procedure under Section 145 of the Indian Evidence Act was not
at all adopted by the learned defence counsel before the Court
below to invite the attention of PW.1 into relevant parts of his
statement under 164 Cr.P.C which comes in conflict or which is
contra to the evidence of PW.1 relating to the sequence of events.
Even otherwise, the so called version as above is only with
reference to the sequence. In my considered view, the learned
Special Judge ought not to have accepted the defence of the AO
when virtually PW.1 was not cross-examined in view of the
procedure contemplated under Section 145 of the Indian Evidence
Act. Leave apart this aspect, the learned Special Judge referred the
contention of AO that as there is a dispute between the
Government and the AO with regard to the land in S.No.1/1, PW.1
demanded him to conduct survey without paying challan and as
5 AIR 1972 SC 468
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he refused to do so, PW.1 implicated him in this case. The further
finding of the learned Special Judge is that the contents of 164
Cr.P.C statement of PW.1 also supported the version of AO that
during his absence from the seat, PW.1 entered into his room and
planted the money into his right side table drawer. It is rather
surprising to note that without any basis, whatsoever, literally,
from 164 Cr.P.C statement, the learned Special Judge gave such
finding which is not tenable, in my considered view. The said
findings of the learned Special Judge are nothing but un-
reasonable. He recorded flimsy reasons that there are spelling
mistakes in Ex.P.11, which would not have been there if PW.2
voluntarily prepared Ex.P-11 which is not tenable in my
considered view.
49. The Hon'ble Supreme Court in Ram Lakhan Sheo Charan
and others v. State of UP6 categorically held that the statements
under Section 164 Cr.P.C. can only be used to corroborate and
contradict the statement made under Sections 145 and 157 of the
Indian Evidence Act and they cannot be used as a substantive
piece of evidence. In the aforesaid case, when the learned Sessions
Judge read the statement under Section 164 Cr.P.C in convicting
6 MANU/UP/0302/1991
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the accused, the Hon'ble Supreme Court found fault with the
same.
50. Under the circumstances, this Court is of the considered
view that the observations of the learned Special Judge that the
contents of 164 Cr.P.C statement of PW.1 supported the version of
AO as if during his absence from the seat, PW.1 entered into his
room and planted the money into right side table drawer is
nothing but reading the statements in substantive evidence.
Further there was no cross-examination inviting the attention of
PW.1 to the relevant contents under Section 145 of the Indian
Evidence Act. Apart from this, absolutely, there is no such whisper
as if AO planted the amount in the right side table drawer of PW.1
in 164 Cr.P.C portion of statement of PW.1 which was extracted by
the learned Special Judge at the end of Para No.21 at Page No.20
of the judgment of the Court below. Hence, the above findings
made by the learned Special Judge are not on any basis.
51. The fact remained is that AO dealt with the tainted amount
with his both hands and under the facts and circumstances the
evidence adduced by the prosecution in this regard is totally
believable. AO, in my considered view, miserably failed to
probabilize his defence that in his absence PW.1 planted the
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amount in the table drawer and later PW.1 caught hold of his
hands and requested him to furnish the survey report and went
away.
52. Turning to the decision cited by learned counsel for the
respondent/accused in Sujit Biswas (2nd supra), the Hon'ble
Supreme Court dealing with the presumption of innocence held
that every accused is presumed to be innocent unless the guilt is
proved. The Courts must be on guard to see that merely on the
application of the presumption the same may not lead to any
injustice or mistaken conviction especially under the statutes like
the Negotiable Instruments Act, 1881; the Prevention of
Corruption Act, 1988 and the Terrorist and Disruptive Activities
(Prevention) Act, 1987. The Hon'ble Supreme Court further held
that such a presumption can also be raised only when certain
foundational facts are established by the prosecution.
53. Coming to the case on hand, in the light of the detailed
reasons furnished supra, prosecution has proved the foundational
facts under the circumstances. Hence, by relying upon the above
said decision, the respondent/accused cannot succeed in this
Appeal.
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54. In my considered view, the prosecution has categorically
proved the foundational facts as alleged in Ex.P-2 with consistent
evidence before the Court below. Now, a presumption under
Section 20 of the PC Act would arise in favour of the prosecution.
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
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
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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.‖
55. The Hon'ble Apex Court in Neeraj Dutta v. State
(Government of NCT of Delhi)7, when the issue was referred to a
Constitutional Bench, gave series of clarifications dealing with
Sections 7, 13(1)(d)(i) R/w.13(2) and 20 of the PC Act. One of such
directions, which may be made applicable to this case is that proof
of demand and acceptance of illegal gratification by a public
servant as a fact in issue by the prosecution is a sine-qua-non in
order to establish the guilt of the accused public servant under
Sections 7, 13(1)(d)(i) and (ii) of the PC Act. The presumption of
fact with regard to 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 material on record, the Court has the
discretion to raise a presumption of fact while considering whether
7 (2022) SCC OnLine SC 1724
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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. The Hon'ble
Supreme Court further held that insofar as Section 7 of the PC Act
is concerned, on the proof of the fact 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 Section 7 of the PC Act. 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 of the PC Act does not apply to Sections 13(1)(d)(i) and
(ii) of the PC Act.
56. In view of the above, it is no doubt true that the
presumption under Section 20 of the PC Act has application to the
charge under Section 7 of the PC Act. As pointed out by this
Court, the prosecution has categorically established the pendency
of the official favour of PW.1 before the AO as on the date of trap
and prior to the date of trap and the initial demand made by AO to
pay bribe of Rs.15,000/- and subsequent reduction of the same to
Rs.8,000/- on 14.09.2002 and further demand of the same on
16.09.2002 and consequent payment made by PW.1 during the
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trap and recovery of the same during the post trap. In my
considered view, the case of the prosecution is further
strengthened by virtue of presumption under Section 20 of the PC
Act that AO accepted the said amount for doing official favour. The
AO miserably failed to probabilize his defence theory. So, the
Accused Officer failed to prove contrary.
57. Another charge is under Section 13(1)(d) R/w.13(2) of the PC
Act. The prosecution has categorically established that AO
obtained undue advantage by demanding. PW.1 to pay bribe of
Rs.8,000/- and consequently accepting the same as such the facts
established by the prosecution further proved the charge under
Section 13(1)(d) R/w.13(2) of the PC Act. In my considered view,
the learned Special Judge did not appreciate the evidence in
proper prospective and erroneously held that the prosecution
failed to prove the charges against the accused beyond reasonable
doubt and the judgment of the trial Court in this regard is nothing
but erroneous and it is not sustainable under law and facts.
Hence, I hold that the prosecution before the Court below
categorically established with consistent evidence the essential
ingredients of Sections 7 and 13(1)(d) R/w.13(2) of the PC Act and
proved the charges against AO beyond reasonable doubt as such
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the judgment of the learned Special Judge in C.C. No.7 of 2003,
dated 26.02.2007, is liable to be set-aside by convicting the
accused.
58. In the result, the Criminal Appeal is allowed by setting-aside
the judgment in C.C. No.7 of 2003, dated 26.02.2007, on the file of
the Court of Special Judge for SPE & ACB cases, Nellore thereby
convicting the respondent/accused under section 248(2) Cr.P.C.
The respondent/accused is sentenced to suffer Rigorous
Imprisonment for three (3) years and to pay a fine of Rs.10,000/-
in default to suffer Simple Imprisonment for six (6) months for the
charge under Section 7 of the PC Act and he is further sentenced
to suffer Rigorous Imprisonment for three (3) years and to pay a
fine of Rs.10,000/- in default to suffer Simple Imprisonment for
six (6) months for the offence under Section 13(2) R/w. Section
13(1)(d) of the PC Act. Both the sentences imposed above shall run
concurrently. MO.6, currency notes of Rs.8,000/-, is ordered to be
returned to PW.1 and MOs.1 to 5 and 7 are ordered to be
destroyed after appeal time is over, if available before the Court
below.
59. The Registry is directed to take steps immediately under
Section 388 Cr.P.C. to certify the judgment of this Court to the
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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.7 of 2003, dated
26.02.2007, 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
15.02.2023 in the name of the Presiding Officer concerned. A copy
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:09.02.2023
DSH
