Unknown vs 401 Cr.P.C. Is Preferred By De ...
2023 Latest Caselaw 3188 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.1032 of 2006

ORDER:

This Criminal Revision Case under Section 397 read with

401 Cr.P.C. is preferred by de facto complainant questioning the

acquittal of respondent No.1 public servant on corruption

charges. Respondent No.2 is the State.

2. Respondent No.1 is the accused officer in C.C.No.20 of

1999 for the offences under Sections 7, 13(1)(d) and 13(1)(a)

read with Section 13(2) of the Prevention of Corruption Act,

1988 (for short, 'the Act, 1988'). He was tried before learned

Special Judge for SPE and ACB Cases, Nellore. The learned

Special Judge after due trial, by an elaborate judgment dated

27.03.2006, found the accused officer/respondent No.1 on all

the charges not guilty and accordingly acquitted him. That

prosecution was led by respondent No.2/State. As against the

acquittal, the State did not prefer any appeal. However, the

de facto complainant in that case preferred the present revision

questioning the correctness of acquittal recorded by the learned

trial Court.

Dr. VRKS, J Crl.R.C.No.1032 of 2006

3. Learned counsel for revision petitioner submitted

arguments.

4. Learned counsel for accused/respondent No.1 submitted

oral arguments and presented written arguments and cited legal

authorities.

5. For respondent No.2-State, learned Special Assistant

Public Prosecutor submitted arguments.

6. The accused officer was Sub-Inspector of Police in Ongole

Taluq Police Station between 07.06.1997 and 23.08.1998.

Within his territorial jurisdiction there is Teja Wines. One

Mr. Ch.Veeraiah Chowdary/PW.10 is the licensee. His brother-

in-law is PW.1/de facto complainant. The allegations are that

on 13.08.1998 the accused officer visited Teja Wines and he did

not find either PW.1 or PW.10 and he told the workers there

that PW.1 was come and meet him. This was witnessed by a

worker in the said wine shop/PW.3. He informed the incident

to PW.1. Thereafter, on 17.08.1998 PW.1 went to Taluq Police

Station and met the accused officer and the accused officer

demanded him to pay Rs.10,000/- so as to avoid involving him

in any cases. PW.1 told the accused officer that he was running

Dr. VRKS, J Crl.R.C.No.1032 of 2006

the wine shop in accordance with Rules and License and there

was no need to pay money. He left the place. He then gave a

report to Director General, A.C.B., Hyderabad on 20.08.1998

under Ex.P.1. Thereafter at 5:00 P.M. on 21.08.1998 Crime

No.19/ACB-CR/HYD/1998 was registered. After holding

pre-trap proceedings, trap was laid on 24.08.1998. It is alleged

that it was at the house of the accused officer at Ongole the trap

was conducted and the raid was held. According to

prosecution, on demand from the accused officer, Rs.10,000/-

was given by PW.1 and thereafter the ride party reached the

spot and conducted requisite Sodium Carbonate Solution Test

on both hand fingers of the accused officer and that yielded

positive result. The currency notes were recovered and their

numbers tallied with the numbers mentioned in the pre-trap

proceedings. Relevant case papers were collected and the

accused officer was arrested and was released thereafter on bail

by the investigating officer. During the course of progress in the

investigation of this case, the investigating agency found further

violations of law on part of the accused officer. It is alleged that

the accused officer illegally detained PW.5 on 17.05.1998 and

put him in lock-up alleging that PW.5 was transporting stolen

Dr. VRKS, J Crl.R.C.No.1032 of 2006

prawns and on 18.05.1998 on receiving Rs.10,000/- as illegal

gratification he released PW.5. It is further found that accused

officer demanded PW.7, who was running Sarada Wines, Bye-

pass road, Ongole, to supply four bottles of foreign made liquor

and when he refused he unauthorisedly kept him in lock-up

and on 06.11.1997 after receiving Rs.25,000/- as illegal

gratification he released him. After collecting the requisite

evidence sanction for prosecution was applied and the

Government of Andhra Pradesh by issuing G.O.Ms.No.333,

dated 23.10.1999 of Home (SC-A) Department granted sanction

for prosecution. Charge sheet was laid before the Court.

7. In response to the summons from the Court, accused

officer made his appearance. Copies of documents were

furnished to him. On hearing both sides and on perusal of the

record, learned trial Court framed charges under Sections 7,

13(2) read with 13(1)(d) and 13(2) read with 13(1) (a) of the Act,

1988. Charges were read over and explained to the accused

and he denied the allegations and pleaded not guilty.

8. During the course of trial, prosecution got examined

PWs.1 to 13 and got marked Exs.P.1 to P.20. The accused was

Dr. VRKS, J Crl.R.C.No.1032 of 2006

questioned about the incriminating material available on record

in terms of Section 313 Cr.P.C. He denied the truth of the

version of the prosecution witnesses. Thereafter the accused

got adduced the evidence of DWs.1 to 11 and got marked

Exs.D.1 to D.4. He also got marked Exs.X.1 to X.28. In

addition to that Ex.C.1 was also marked. MOs.1 to 6 were

marked. The learned trial Court made a detailed scrutiny of the

evidence led on both sides, considered the submissions made on

both sides and then recorded its findings to the effect that the

de facto complainant/revision petitioner/PW.1 had no

connection with Teja Wines and on part of the accused

officer/respondent No.1 there was no pending official favour

which he could render. The story of the prosecution that on or

about 13.08.1998 accused officer going to Teja Wines was not

proved. The allegation that on 17.08.1998 accused officer

demanded from PW.1 illegal gratification of Rs.10,000/- is not

proved. It observed that Ex.P.1 complaint of PW.1 seems to

have been motivated for reason that F.I.R. which was registered

at 5:00 P.M. on 21.08.1998 did not reach the Court till 12:00

Noon on 24.08.1998. Explaining this the learned trial Court

observed that the trap was held at 9:30 A.M. on 24.08.1998 and

Dr. VRKS, J Crl.R.C.No.1032 of 2006

the F.I.R. that was registered three days ago was received by the

Court only subsequent to completion of trap proceedings. It

stated that PW.11 the investigating officer failed to bestow

proper attention and failed to make the needful discreet

enquiries about the accused officer and about PW.1 before

registration of crime. From the voluminous evidence led by

defence, it observed that posting of accused officer at Taluq

Police Station, Ongole was not to the liking of sitting M.L.A. and

it recorded several factual findings from X-Series documents

indicating the threats the accused officer received from M.L.A.

and the involvement of PWs.1, 10 and others in various criminal

cases filed by the accused officer against them a few months

earlier to the present case incident. It tested the credibility of

each witness. It observed the absence of evidence of certain

other witnesses and on overall analysis of the evidence, it found

that with a view to wreak vengeance PW.1 got foisted this false

case against accused officer. Coming to the trap proceedings, it

observed that Rs.10,000/- was not found in the hands or body

of the accused officer and they were found lying at his feet.

Observing that in the absence of credible evidence about

demand for illegal gratification, it would not believe about

Dr. VRKS, J Crl.R.C.No.1032 of 2006

acceptance of gratification on part of accused. It further

observed that one of the important witnesses/PW.4 was found

to be an imposter. It analysed the evidence of PW.2 and found

him not believable at all. It discussed various aspects about

pre-trap proceedings, the telephonic conversations said to have

been made by prosecution witnesses with accused officer and

said that prosecution utterly failed in establishing any of those

facts and in fact the evidence spoken to by witnesses was found

false by virtue of relevant evidence recovered from Department

of Telephones and the Office of Superintendent of Police. It

found inherent infirmities in the evidence of PWs.1, 2, 9 and 11

and at great length it dealt with the trap incident and on

analysis of evidence of one of the trap witnesses/PW.9, it found

that the case is a deliberate ploy foisted against the accused

officer. It then dealt with the allegations of unauthorized

detention of PW.7 and acceptance of bribe amount of

Rs.25,000/- and then releasing PW.7 from the police custody.

It said that the incident allegedly pertain to 05.11.1997. From

then no complaint was lodged and there was only solitary

testimony of PW.7 which could not be believed as the evidence

of alleged another relevant witness Hanumantha Rao was not

Dr. VRKS, J Crl.R.C.No.1032 of 2006

brought on record by the prosecution. It then scrutinized the

charge concerning unauthorized detention of PW.5 and

obtaining illegal gratification of Rs.10,000/- and releasing him.

It stated that the allegation was that on 18.05.1998 in Taluq

Police Station accused demanded for gratification. On analysis

of the evidence of PWs.5 and 6 and DW.5 and Ex.X.16 and other

documents, it observed that there was no credible material

evidence proving the demand and receiving the gratification.

Having recorded such findings, it found the accused officer not

guilty for all the charges and acquitted him accordingly.

9. In this criminal revision case, the de facto complainant

assails the said judgment stating that the conclusions reached

at by the trial Court are against the evidence. As the evidence

on record established recovery of tainted money from the

accused officer, presumption under Section 20 of the Act, 1988

ought to be drawn and the same was not rebutted by defence

but against the established law the accused was acquitted.

10. As against that, learned counsel for respondent

No.1/accused officer argued that a very well considered

judgment of the trial Court cannot be interfered with by this

Dr. VRKS, J Crl.R.C.No.1032 of 2006

Court. Citing ratio in N.Vijayakumar v. State of Tamil Nadu1

of the Hon'ble Supreme Court of India, the learned counsel

submits that this Court must hold in mind that in cases of

acquittals which are challenged before this Court there is

double presumption in favour of the accused. It is stated that

there was initial presumption of innocence during the course of

the trial and when the trial Court found the accused innocent,

the initial presumption stood reinforced and reaffirmed. Even if

two reasonable conclusions are possible on the basis of the

evidence on record, this Court should not disturb the finding of

acquittal recorded by the trial Court.

11. Learned counsel for respondent No.1, while citing Neeraj

Dutta v. State (Govt. of N.C.T. of Delhi)2 of the Hon'ble

Supreme Court of India, argued that demand and acceptance of

illegal gratification as a fact must be proved beyond reasonable

doubt. That the presumption under Section 20 of the Act, 1988

would apply only if the fact of demand and acceptance is

proved. It is argued that the contention of the revision

(2021) 3 SCC 687

(2022) SCC Online SC 1724

Dr. VRKS, J Crl.R.C.No.1032 of 2006

petitioner that the tainted money was recovered from the hands

of the accused officer is factually incorrect. The learned counsel

drew the attention of this Court from the factual findings

available on record and further submits that in a revision

against acquittal this Court cannot record conviction.

12. On considering the submissions on both sides, the

following point fall for determination:

"Whether the learned trial Court failed to appreciate

the evidence in proper perspective and whether the

evidence established demand and acceptance of bribe

amount and recovery of tainted money from the hands of

the accused and the learned trial Court erred in acquitting

the accused?

13. Point:

When evidence is adduced on both sides at trial and

various facts and circumstances were brought on record, the

proof or otherwise of the charges levelled against the accused

has to be analysed on the touch-stone of the evidence that was

brought on record. While considering the criminal case the

Dr. VRKS, J Crl.R.C.No.1032 of 2006

evidence about facts relevant to the crime and the credibility of

the witnesses who deposed on these facts are matters of great

importance.

14. It is a matter of record that initially under Ex.P.3 sanction

for prosecution was granted by the State. Thereafter accused

officer applied to the superiors submitting various papers and in

consideration of all that material, Government passed

G.O.Ms.No.35 Home (SCA) dated 13.02.2001 ordering for

withdrawal from prosecution. However, that Government Order

was challenged by the present revision petitioner before this

Court in W.P.No.4231 of 2001. This Court set aside the above

Government Order. It is also a matter of record that there is an

observation from the trial judge that this revision

petitioner/PW.1 engaged a learned counsel to assist the

prosecution and it was that learned counsel who played

enthusiastic role in procuring prosecution witnesses. At para

No.55 of its judgment learned trial Court stated that PW.1 is

brother-in-law to PW.10 and PW.3 is related to PW.10 and PW.4

is an imposter working under PW.1 and PW.2 is close friend of

PW.1. All these witnesses spoke about pre-trap and trap

proceedings. They are found to be not independent witnesses.

Dr. VRKS, J Crl.R.C.No.1032 of 2006

It observed that PW.9 is also laboring under the same difficulty.

It stated that PW.11 the riding officer brought independent

witnesses for the trap, but they were not allowed to play their

role by the above referred witnesses.

15. The alleged trap was on 24.08.1998. The version of PW.1

is that he owns or he is a partner of Teja Wines. However, on

scrutinizing the entire evidence on record, it is seen that PW.1 is

neither owner of the Teja Wines nor a partner in Teja Wines and

also is not a Nowkarnama holder in that Teja Wines. It is

PW.10 who is the license holder. It is not the case of

prosecution that accused officer ever demanded any illegal

gratification from PW.10. The evidence of PW.1 and the

contention of the prosecution that PW.1 is Proprietor of Teja

Wines is to be found false as the defence examined DW.1 who

produced Exs.X.2 to X.9. Since PW.1 was found not officially

connected to Teja Wines, learned trial Court observed that he

had no concern and he is not competent to lodge Ex.P.1-

complaint. This fact has some significance. The initiation of

case is not at the behest of PW.10 who is the license holder of

Teja Wines. The initiation is from his relative/PW.1 who has no

pecuniary interest over Teja Wines. The evidence on record

Dr. VRKS, J Crl.R.C.No.1032 of 2006

disclose that the then sitting M.L.A. is maternal uncle of PW.1.

Ex.X.12(A) and five other documents in that series and

Exs.X.13 and X.13(A) and other series of documents and

Exs.X.14 and X.14(A) and the series of documents and Exs.15,

16, 17 and the series of documents are all general diary entries

of Taluq Police Station. They were maintained by original along

with carbon copy. Originals were sent to Superintendent of

Police. Originals were found destroyed as per law as per Ex.C.1

letter of the Superintendent of Police. After analyzing all these

documents, it is seen that there were conversations among

PW.1 and other followers of PW.1 and the M.L.A. All of them are

reflected in those general diary entries. Through the cross-

examination of PW.1 and other witnesses, it was found that in

Crime No.56 of 1999, Crime No.39 of 2002, Crime No.74 of

2004, Crime No.64 of 2004, Crime No.28 of 1998 and in Crime

No.114 of 1994 there is participation of PW.1 or his associates

or the sitting M.L.A. The documents on record indicate that a

few months prior to the present case mentioned trap, crimes

were registered for Excise offences and crimes were registered

against the followers of the then sitting M.L.A. and on more

than one occasion this PW.1 along with his associates went to

Dr. VRKS, J Crl.R.C.No.1032 of 2006

the police station and demanded this accused officer

questioning the accused officer in registering crimes and in

detaining certain accused belonged to their group. The evidence

on record also indicate accused officer addressing letters earlier

to the present crime. These letters were addressed to the

Superintendent of Police wherein he mentioned about

apprehensions of damage to his career at the hands of PW.1

and the M.L.A. Station general diary entries also indicated the

word from the then M.L.A. that he did not like posting of the

accused officer at that police station. As per Ex.X.13(C) on

16.02.1998 the political man telephoned to the accused officer

demanding him to release liquor he seized. When he refused he

was threatened. As per Exs.X.14(C), 14(D), 14(E), 14(F), 14(G),

14(H) and 14(I), PW.1 went to the police station and threatened

this accused officer telling him he should not go to Bandobust

duty at Gundayapalem on the occasion of re-polling. All these

incidents occurred just a few months earlier to the present trap

proceedings.

16. The above facts are narrated to have a proper perspective

of the charge mentioned allegations. The allegation is that

accused officer demanded PW.1 to pay him Rs.10,000/- or

Dr. VRKS, J Crl.R.C.No.1032 of 2006

otherwise he would involve him in cases. Evidence of PW.1

indicated that the accused officer threatened to get the wine

shop closed by illegal cases. The improbability as detected by

the trial Court lies in the fact that PW.1 has no pecuniary

interest over the wine shop and therefore the threats of accused

officer should not have bothered him at all. Be it noted, PW.10

is the license holder which is established on evidence. He did

not file any case. As seen from the evidence of PW.1, he did not

tell PW.10 about accused officer threatening to foist false case

against the wine shop and demand for money to avoid such

possibility. Coming to the accused officer, it was brought on

record that under G.O.Ms.No.167 (Excise-II), dated 18.02.1998

Law and Order police have no jurisdiction over licensed excise

shops. Thus the evidence also established incompetence of

accused officer in riding Teja Wines which holds appropriate

license. In that view of the matter, learned trial Court is right in

saying that no official favour was pending with accused officer.

Thus, on one hand PW.1 had no real interest over Teja Wines

and on the other hand, accused officer had no power to ride or

get Teja Wines closed. It is on all these established facts the

demand for money stated by prosecution through the mouth of

Dr. VRKS, J Crl.R.C.No.1032 of 2006

PW.1 was not accepted by the learned trial Court. This Court

finds no reason to think otherwise. The factual finding was

arrived at on appropriate analysis of the entire oral and

documentary evidence. There is no irregularity or illegality

involved in it.

17. The crux of the argument for the revision petitioner lies

on presumption contained in Section 20 of the Act, 1988. This

provision provides that if the prosecution has proved that the

accused officer has accepted valuable thing, the Court shall

presume that it is for gratification as stated in Section 7 of the

Act, 1988. The evidence of PW.1, PW.11 and other witnesses is

that on 24.08.1998 PW.1 went inside the house of the accused

officer and the accused officer demanded him for Rs.10,000/-

telling him that it was needed and PW.1 giving Rs.10,000/- and

the accused officer receiving this amount with his right hand. It

is undisputed that on evidence the scientific test yielded positive

result. It is on this evidence revision petitioner urges that the

fact of receiving gratification is proved and presumption shall be

raised under Section 20 of the Act, 1988 and the accused officer

failed to show any justification for receiving that amount and

therefore, presumption stood not rebutted and therefore the

Dr. VRKS, J Crl.R.C.No.1032 of 2006

trial Court ought to have convicted him, but erroneously

acquitted him. Having considered these submissions and

having perused the evidence of PWs.1, 11 and other witnesses,

it is seen that by the time PW.11 reached the spot the currency

notes were at the feet of the accused officer. The existence of

currency notes at that spot is established by the prosecution.

The only question is was it received by the accused or was it

thrusted into his hands. At paragraph No.57 the learned trial

Court appropriately found the relevance of this aspect. It

recorded the ratio in K.Narasimhachary v. State: Inspector

of Police, Anti-Corruption Bureau, Cuddapah District (2003

Crl.L.J.3315). In that case it was held that whenever a trap is

successful, the version of the prosecution gains credence.

However, Court has to see the circumstances such as the

accused officer coming into contact with the tainted notes in the

process of pushing the same from table or thwarting the

attempts of the complainant to thrust the amount into the

hands or pocket need to be taken into account. Mechanical

acceptance of trap is prone to result in injustice. This prudent

principle has vital importance. Here is a case where by the time

of the trap proceedings, PWs.1, 10 and other associates were

Dr. VRKS, J Crl.R.C.No.1032 of 2006

involved in various offences against human body, against

property, against violation of Excise Laws and several of their

followers were arrested and by then there was severely strained

relationships between political incumbency and this accused

officer and there was active role on part of PW.1 in hurling

warnings against the accused officer. Learned counsel for

respondent No.1 submits that seeking favour for those cases

there were approaches from PW.1 and since they were

condemned by the accused officer seemingly the case came to

be foisted. If really the accused officer demanded and then

received Rs.10,000/- by the time the trap witnesses had

reached the place including PW.9, money must have been either

in his hands or in his pocket or on a table. However, the cash

was found at the floor near the feet of accused officer. This

indicates the reluctance of accused officer for money. Scientific

test yielding result by itself cannot determine that somebody

accepted tainted money. The possibility of PW.1 thrusting

money into the hands of accused officer or into his pocket

cannot be ruled out. This is not a surmise but a clear

possibility arising between accused officer and PW.1. From the

proved facts it is seen PW.1 had no proprietary concern over

Dr. VRKS, J Crl.R.C.No.1032 of 2006

Teja Wines and the accused officer had no role to play against

Teja Wines. Hence the contention of prosecution that accused

officer demanded and then received Rs.10,000/- as illegal

gratification could not be accepted. Analysis of trial Court on all

these facts and circumstances is immaculate. There is

absolutely no merit in what is contended on behalf of the

revision petitioner.

18. It may be stated here that what is placed before this Court

is a criminal revision case. This is as against an acquittal in a

criminal case. This Court cannot convert a finding of acquittal

into one of conviction by virtue of prohibition contained in Sub-

Section (3) of Section 401 of Code of Criminal Procedure.

Despite notifying this fact to the learned counsel for revision

petitioner and despite the fact that his attention is brought to

Sub-Section (5) of Section 401 of Cr.P.C., no steps were taken

for the revision petitioner to see that the revision is converted

into an appeal. All these facts indicate that there was no

genuine interest for the revision petitioner in saying that justice

is to be done. In any view of the matter, this Court having

considered the entire material on record finds no merit in the

grounds urged in this revision. Therefore, it is to record that

Dr. VRKS, J Crl.R.C.No.1032 of 2006

the judgment of acquittal rendered by the learned trial Court is

right on facts and law. There is nothing to interfere. Hence,

point is answered against the revision petitioner.

19. In the result, this Criminal Revision Case is dismissed

confirming the judgment dated 27.03.2006 of learned Special

Judge for SPE and ACB Cases, Nellore in C.C.No.20 of 1999.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 16.06.2023 Ivd

Dr. VRKS, J Crl.R.C.No.1032 of 2006

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.1032 of 2006

Date: 16.06.2023

Ivd