Andhra Pradesh High Court - Amravati

Smt.Meena vs Bureau on 16 June, 2023

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

              CRIMINAL APPEAL No.941 of 2007

JUDGMENT:

As against acquittal recorded by the learned trial Court,

the state represented by its Inspector of police, Anti-Corruption

Bureau, Vijayawada range presented this Criminal Appeal

under Section 378(3)&(1) of code of Criminal Procedure after

duly obtaining the permission from the Government vide Memo

No.1630/VC-1-2/2003-3 of Health Medical & Family Welfare

(VC-1) Department, dated 15.06.2007. In this appeal, the state

challenges judgment dated 12.01.2006 of learned Special Judge

for SPE and ACB Cases in CC.No.25 of 2003 under which the

learned trial Court acquitted the respondent herein.

2. Respondent/accused was a Superintendent in the

Engineering Section, N.T.R. University of Health Sciences,

Vijayawada from 04.07.1988 to 10.01.2002. Therefore, he was a

public servant within the meaning of Section 2(C) of the

Prevention of Corruption Act, 1988(hereinafter referred to as

Act, 1988).

Dr. VRKS, J Crl.A.No.941 of 2007

3. The victim/PW.6 is Sri.K.Venkateswara Rao is a

contractor by occupation. For the University, he undertook

certain Electrical contract works. It is in that regard, a bill for

Rs.1,20,000/- was pending with the University authorities for

quite a long time. Prosecution alleged that when the contractor

met the accused officer, there was a demand of bribe of

Rs.5,000/- and this demand was made on 04.01.2002.

Thereafter, the contractor met the accused officer in his office

on 09.01.2002 requesting him to complete the processing of his

file and the accused officer once again repeated his demand of

Rs.5,000/- stating that on receipt of such amount only

processing of his file would be done. It is on that demand, the

contractor complained to Inspector, Anti-Corruption

Bureau(PW.7) who in turn informed the same to Deputy

Superintendent of Police, Anti-Corruption Bureau,

Vijayawada(PW.8). On the instructions of PW.8 discreet

enquiries were held by PW.7 about the genuineness of

grievances raised by the contractor and about the character,

conduct and reputation of the accused officer. PW.7 positively

informed to PW.8. Therefore, on 10.01.2002 under Ex.P16-FIR

in Cr.No.1/ACB-VJA of 2002 was registered by PW.8. On the

Dr. VRKS, J Crl.A.No.941 of 2007

same day, he summoned the mediators (PW.4 and LW.7) and

summoned the contractor/PW.6. The contractor brought

Rs.5,000/- and under the instructions of PW.8 his constable

sprayed phenolphthalein powder on the currency notes and

they were kept in the shirt pocket of the contractor/PW.6 and

necessary instructions were passed on to everyone in the trap

party and the team of ACB Officers and the mediators and the

contractor reached a place near the office of accused officer. On

10.01.2002 at 4:25 PM, the contractor proceeded towards the

office of accused officer and met him and as he demanded the

money, PW.6 handed over Rs.5,000/- to him and the accused

officer received it and by 4:45 PM, PW.6 came out of the office of

accused officer and gave the pre-arranged signal and on seeing

it, the raid party reached the accused officer. They questioned

him and conducted sodium carbonate test to both of his hands

and that yielded positive result. Accused officer denied his

alleged demand and denied receipt of any amount of money

from PW.6. By the time the raid party, under the supervision of

PW.8 reached the accused officer, they did not find any files on

his table. They also could not trace the tainted money.

Thereafter, they searched the office for about 3 hours and it was

Dr. VRKS, J Crl.A.No.941 of 2007

at about 7:45 PM, the raid party detected the tainted money

secreted in between two files which were there in a steel

rack/almirah. It is stated that the alleged steel rack/almirah

was just behind the chair of accused officer. Necessary tests

were conducted. Post trap proceedings were prepared. The

tainted money was seized. When accused officer was asked

about the files pertaining to the contractor, he telephoned to the

Executive Engineer and from his office, the relevant Exs.P2 and

P4 files were brought to the accused officer and the

investigation agency seized them. Ex.P10-Post trap proceedings

were made. Ex.P9-Rough sketch was prepared on the spot on

completion of investigation.

4. Learned Special Court took cognizance and secured the

presence of accused and furnished him the copies of

documents. After hearing both sides and on considering the

material available on record, it framed the following charges

against the accused officer.

1. That you being the public servant within the meaning of Sec.2 (c) of P.C.Act 1988 to wit. Superintendent, Engineering Section, N.T.R. University of Health Sciences, Vijayawada, Krishna District. Prior to 9th day of January,

Dr. VRKS, J Crl.A.No.941 of 2007

2002 and on 9th day of January, 2002 at about 10 am, you demanded Rs.5,000/- as bribe from Kosaraju Venkateswararao, Contractor, for processing his pending final bill for Rs.1,20,000/- pertaining to electrical contract works in the University, and in continuation of the above demand, on the 10th January, 2002 at about 5.00 pm, you further demanded and accepted an amount of Rs.5,000/- from the said Kosaraju Venkateswararao, as gratification other than legal remuneration for doing the above-said official favour of processing his pending final bill for Rs.1,20,000/- pertaining to the electrical contract works in the University, and that you thereby committed an offence punishable under Section 7 of P.C.Act, 1988 and within my cognizance.

2. That you being the public servants within the meaning of Sec.2 (c) of P.C.Act 1988 to wit. Superintendent, Engineering Section, NTR University of Health Sciences, Vijayawada, Krishna District, on the 10th January, 2002 at about 5.00 pm., you further demanded and accepted an amount of Rs.5,000/- from the said Kosaraju Venkateswararao, as gratification other than legal remuneration for doing the above said official favour of processing his pending final bill for Rs.1,20,000/- pertaining to the electrical contract works in the University, and obtained for yourself pecuniary advantage of Rs.5,000/-, by abusing your position as such public servant, thereby committed criminal misconduct, and

Dr. VRKS, J Crl.A.No.941 of 2007

that you thereby committed an offence punishable under Section 13(1)(d) r/w 13(2) of P.C.Act 1988 and within my cognizance.

Charges were read over and explained to the accused and he

denied the allegations and pleaded not guilty. Thereafter,

prosecution led the evidence of PWs.1to8 and got marked

Exs.P1 to P16 and M.O.s1 to 9. During the course of cross-

examination of prosecution witnesses, Exs.X1 to X14 were

marked. Accused was examined under Section 313 Cr.P.C and

he offered his explanations and denied the truth of the evidence.

5. After hearing the arguments on both sides and after

considering the entire oral and documentary evidence, in a very

elaborate judgment, the learned trial Court observed in clear

and categorical terms, the evidence disclosed to it was that no

official favour was pending with the accused officer and that

was to the full knowledge of the contractor/PW.6 that PW.6 was

found to be a witness not reliable. It recorded that under Exs.X

series documents and the evidence of PW.5 that in the last two

years preceding this alleged crime incident and even subsequent

to the crime incident, there were several complaints against

PW.6 from various staff members and others working in the

Dr. VRKS, J Crl.A.No.941 of 2007

University where the contract work was done and that PW.6 was

found to be not eligible for executing the contract works and the

M-Book prepared was found manipulated with lot of corrections

which remained unattested and there was no evidence

indicating the accused officer could have dealt with the file in

any other way and it was found improbable that he either

demanded money or received money. After analyzing at great

length about the trap proceedings, it held that though on

washing the hands of the accused officer the result was found to

be positive by the investigating agency, the fact that relevant

files were not with the officer and relevant cash was not seized

from the accused officer was a matter of significance. It held

that tainted money was not recovered from the possession of the

accused officer. In the light of the evidence, it found that there

was no convincing evidence to think that accused officer either

demanded or received money from PW.6 for any official favour.

Saying so, it found the accused not guilty and acquitted him of

all the charges. While considering the evidence on record, the

learned trial Court indicated the principles of law that were

found applicable to the case at hand and cited

Dr. VRKS, J Crl.A.No.941 of 2007

Smt.Meena W/O Balwvant Hemke V. State of Maharashtra1

for the principle that when tainted amount was not recovered

from the physical possession of the accused officer or from his

table drawer, the recovery by itself could not conclusively lead to

an inference by acceptance of bribe. It cited Gulum Mohammad

A Malik V. State of Gujarath2 on the principle that

background of a case should never be lost sight of while

assessing the credibility of evidence. It cited Surajmal V. State

Delhi administration3 to the effect that when the evidence of

prime witnesses was inconsistent, it is unworthy of credence. It

cited C.Siva Kumar Reddy V. State of Andhra Pradesh4 to

the effect when there was evidence indicating serious enmity

between the accused officer and the defacto complainant, the

defence of accused that the tainted money was forcibly thrusted

into him has to be properly analysed and decided. It is on the

strength of these principles and on the findings arrived at by it,

the learned trial Court concluded the case against the State and

in favour of the accused officer.

2000 Crl.L.J.2273

1980 Crl.Law Journal 1096

1979 Crl.Law Journal 1087

2005(2) ALT Criminal 291

Dr. VRKS, J Crl.A.No.941 of 2007

6. Aggrieved by this judgment state has come up with this

appeal contending that the evidence on record fully established

the culpability of the accused and the learned trial Court failed

to appreciate the evidence in proper perspective and reached to

incorrect conclusions that the evidence established demand for

bribe and offer of money and acceptance of bribe amount on

part of the accused officer. Even otherwise as the evidence

established receipt of Rs.5,000/- by the accused officer that is

an illegal gratification and charge under Section 7 of act,1988

should have been upheld by the learned trial Court.

Presumption under Section 20 of the Act, 1988 should have

been properly complied. The file of the contractor need not

necessarily be with the accused officer at the time of trap as

long as the fact remains that the said file is in the office where

the accused officer has been working and holding control over

it. The charges ought not to have been brushed aside. The

findings of the learned trial Court that PW.6/defacto

complainant was not a reliable witness is incorrect. Sodium

Carbonate solution test yielded positive result, the tainted

amount was recovered from the files behind the rack/almirah of

the accused officer. There was no explanation from the accused

Dr. VRKS, J Crl.A.No.941 of 2007

officer about this money. In such circumstances, learned trial

Court ought to have found him guilty, but it failed and therefore

in this appeal this Court should set right the course of justice.

7. As against this, the learned counsel for

respondent/accused officer submits that learned trial Court

very elaborately considered the oral and documentary evidence

and analysed them and with appropriate reasons, it reached to

correct conclusion on each fact. Learned trial Court properly

applied the legal principles applicable in every criminal trial.

Accused is presumed to be innocent and when the innocence of

accused was approved by the trial Court, this Court sitting in

the appeal should not interfere with the judgment of acquittal

unless there are fundamental flaws in the approach of the trial

Court. That in this case judgment of the trial Court does not

disclose any lapses either in consideration of evidence or in

application of law and therefore there is no warrant for any

interference. For these reasons, learned counsel prays for

dismissal of the appeal.

8. On considering the submissions on both sides and on

perusal of the record, the following point falls for consideration:

Dr. VRKS, J Crl.A.No.941 of 2007

1. Is there evidence on record proving beyond reasonable doubt that the respondent/accused officer received Rs.5,000/- from the contractor/PW.6 and whether the learned trial Court committed errors on fact or law requiring interference?

9. Ex.P8 is pre-trap proceedings, Ex.P10 is post-trap

proceedings. PW.8 is trap laying officer, PW.4 is one of the

witnesses who participated when the trap was laid. PW.6 is the

person from whom money was demanded by the accused officer.

PWs.1,2 and 3 are the three staff members working along with

the accused officer in the same office. When the trap was laid

and the raid was conducted, they were witnesses to this case.

PW.5 was the Joint Registrar of NTR University of Health

Sciences. He testified to prove the sanction order for

prosecution. Ex.P12 is the sanction order. PW.7 was the

Inspector, Anti-Corruption Bureau, Vijayawada to whom PW.6

informed about the corruption on part of accused officer.

Considering the nature and importance of a case, this Court has

completely read the evidence on record. The essence of the case

is about receipt of money by the accused officer as an illegal

gratification to do a favour. Therefore, the evidence relied on

shall be critically examined. Be it noted, on all primary facts

there shall be satisfactory evidence from prosecution and the

Dr. VRKS, J Crl.A.No.941 of 2007

evidence adduced shall inspire confidence to a Court to believe

the truth of the versions spoken by the witnesses and the

evidence adduced shall lead to conclusion that the alleged

offence was committed by the accused officer. On these primary

principles, the case has to be decided.

10. The evidence of the contractor/PW.6, the trap

witness/PW.4, the trap laying officer/PW.8 are important for

consideration. All these witnesses said that the raid party

reached to a place nearer the office of the accused officer by

about 4:25 pm., on 10.01.2002. Then PW.6 alone went to the

office and found the accused officer at his table and met him.

According to PW.6, the accused officer asked him to wait for ten

minutes and he accordingly waited. After ten minutes accused

officer asked him whether he brought the money and PW.6 said

that he brought the money and he picked up the bunch of

currency notes for a total of Rs.5,000/- and gave the money to

the accused officer and the accused officer received the money.

After that, according to PW.6, the accused officer told him that

he already sent his file to Executive Engineer for consideration.

After hearing these words, PW.6 came out of the office and gave

the pre-arranged signal to the raid party and the raid party

Dr. VRKS, J Crl.A.No.941 of 2007

reached the accused officer. According to PW.8, it was about

4:45 pm., PW.6 gave them a pre-arranged signal and soon they

reached to the spot and found the accused officer. It is the

evidence of PW.8 that he directed PW.6 to wait outside the office

of the accused officer till he calls him. PW.6 said that he obliged

it and accordingly waited outside the office for about three

hours and thereafter only he got the call from PW.8 to come

inside.

11. The evidence of PWs.4 and 8 is that the spontaneous

reply from the accused officer was about denial of any demand

for money and denial of receipt of any money. They said that

necessary test was conducted by dipping the hands of accused

in solution which yielded positive result. Thus, the evidence of

PW.4 and 8 is a clear indication that the tainted money was

handled by the accused officer with his hands. While cross-

examining PW.6 and other witnesses, suggestions given were

that when PW.6 offered cash, accused officer refused and PW.6

thrusted the cash into his hands and the accused officer

pushed it aside saying his disinclination and disapproval. This

contention of the defence raised against the evidence of PW.4

and PW.8 has to be analysed.

Dr. VRKS, J Crl.A.No.941 of 2007

12. It is the evidence of PW.4 and PW.8 that the tainted

money was not found with accused officer. It is their evidence

that the tainted money was not found on the table or around

the table of the accused officer. As per the evidence of PW.8, the

files pertaining to PW.6 were also not available with the accused

officer. When PW.8 asked the accused officer about the files, he

told him they were not with him but they were with Executive

Engineer. On the instructions of PW.8, this accused officer

telephoned and got the files of Exs.P2 and P4 from the office of

the Executive Engineer which lies within the same precinct

where the accused officer was working. This evidence led by

prosecution says that by the time of trap, the files concerned

were not with accused officer. When the raid was conducted, the

tainted money was found not in the hands nor on the body nor

on the table nor on the drawers of the table of the accused

officer. PWs.4 and 8 in their cross-examination admitted these

facts. The significance of absence of files and absence of tainted

money cannot be brushed aside quite easily.

13. The evidence of PWs.4 and 8 is that they did extensive

search in the office and it was only after three hours at about

7:45 pm., they traced the money/MO.3. According to these two

Dr. VRKS, J Crl.A.No.941 of 2007

witnesses, this money was found in between two files. These

witnesses said that these files are in a steel rack. According to

these witnesses the steel rack is lying just behind the seat of

accused officer. Thus, according to prosecution M.O.3 tainted

money was lying just behind the seat of accused officer but it

took three hours for the raiding investing agency to trace it. The

version of the defence is that PW.6 was not sitting outside and

he was very much inside the office and he was with PWs.4 and

8 when the search in the office was going on and during those

three hours at an opportune moment, the tainted cash was

planted by PW.6 in between the two files lying just behind the

seat of accused officer. Thus, the evidence led by prosecution

must be decided on the touch tone of this contention of the

defence before one reaches to the conclusion as to whether the

evidence on record proved beyond reasonable doubt that there

is nexus between accused officer and the recovered M.O.3

tainted cash.

14. The first witness introduced by the prosecution is PW.1.

He was a junior assistant where accused officer was a

superintendent. He expressed his knowledge about pending files

of PW.6 with their office. He spoke about raid party coming to

Dr. VRKS, J Crl.A.No.941 of 2007

accused officer. He said that he did not further observe about

any chemical test conducted to the hands of the accused officer.

In that way, he did not support the case of prosecution. He was

permitted to be examined in cross and the learned Special

Public Prosecutor questioned him in cross. This witness was

tendered for cross-examination of behalf of the defence. During

this cross-examination, he stated that the contractor/(PW.6)

participated in the search along with the ACB Officers. He

further said that they all threw away files from his almirah also.

This witness was tendered for recross-examination and the state

reported nil cross-examination. Thus, what was elicited in his

cross-examination which is referred above remained

unchallenged. Equally significant fact was spoken to by the

witness during his examination in chief. He stated that the

tainted amount was recovered form an almirah and that

almirah belong to him. While cross-examining this witness on

behalf of the state, learned Special Public Prosecutor did not

challenge this aspect of the matter. This witness during his

cross-examination held by the defence disclosed that the raiding

party found original as well as duplicate keys of the almirah

with PW.1 only. Thus, it is an almirah with doors and has got a

Dr. VRKS, J Crl.A.No.941 of 2007

key and a duplicate key and all of them were with PW.1. This

witness further stated that the DySP/PW.8 asked him as to why

both the keys were with him and he properly explained to him

as to why these keys were with him. This was also never

challenged by the state by way of any further cross-examination

of this witness. While according to prosecution, the tainted

money between files was traced in an open rack, the very first

witness of the prosecution stated it otherwise and said that the

files and the tainted cash was recovered from an almirah which

has got original and duplicate keys lying with PW.1 at that point

of time. Why this witness should not be believed should be

considered. The only suggestion given to him and argued by the

State is that he being a colleague of accused officer, he was

inclined to support him and speak against the State. This

contention does not appeal to me. On 07.12.2005, this witness

gave his evidence in chief with an opening sentence that he

retired from service and leading a retired life. He belonged to

Panchayat Raj Department. He was deputed to NTR University

of Health Sciences and therefore by the relevant time he was

discharging his duties there. Thus, this witness and accused

officer do not belong to the same department and are of not

Dr. VRKS, J Crl.A.No.941 of 2007

same age and they have no particular affinity between them and

the witness by the time he gave his evidence already retired

from his office. No other evidence was brought on record to

show PW.1 was particularly desirous of speaking false and

concealing the truth and protecting the culprit. On a keen

analysis of the facts referred above, this Court finds that there

is no particular reason to disbelieve what this witness said.

Purport of this discussion could lead to a conclusion that the

tainted money was found lying in a closed almirah in between

files over which there was physical control for PW.1 and not for

accused officer. While cross-examining PW.1, it was never

suggested by prosecution that the accused officer on receipt of

MO.3 money from PW.6 brought and kept the money in the

almirah of PW.1. The evidence of PW.1 raises a serious doubt

about the prosecution allegation that in an open rack, this cash

was found in between two files.

15. Ex.P9 is the rough sketch of the scene offence. This rough

sketch which depicts the geography of the premises is relevant.

Investigating agency prepared it with a view to demonstrate

before the Court the exact place where the tainted amount was

lying when it was detected and seized. A perusal of Ex.P9 shows

Dr. VRKS, J Crl.A.No.941 of 2007

total absence of that. PW.8 and all other witnesses admitted in

their cross-examination that this rough sketch contains no

indication about the existence of rack and place of tainted

money. This is another significant lapse. No explanation was

offered to the trial Court as well as this Court on this vital lapse.

The fallout of this lapse is that there is no solid base to think

that it was an open rack from which the tainted money was

recovered. This lapse in Ex.P9 reinforces the statements made

by PW.1 making one to think that the alleged recovery was not

from the racks but from an almirah.

16. According to PWs.4 and 8, the open rack was just behind

the seat of accused officer. PW.1 is at a distance from the seat of

accused officer. PWs.2 and 3 are also office colleagues of

accused officer. Those two witnesses have also not supported

the case of prosecution. All of them said about raid party

rummaging the entire office. All this raises a few questions.

Once the raid party reached the accused and questioned and

searched him and when they did not find the tainted money, the

normal approach would be to search all those places which are

in the immediate presence of the accused officer where there

was every possibility for the accused officer to conceal the

Dr. VRKS, J Crl.A.No.941 of 2007

tainted money within a limited time since the raid party reached

him soon after PW.6 left him. Thus, PW.8 and others should

have normally searched the steel rack behind the accused

officer soon after they completed the search of the accused

officer. If that was done, within few minutes, the tainted cash

would have been discovered. It was not done, instead they

searched everywhere else. Later they searched what was at the

arm's length for the accused officer. What is the implication in

it? It is here the contention of the defence based on the

unchallenged evidence of PW.1 about PW.6/contractor

participating with the raid party when they were conducting

search. In that view of the matter while everyone else was

engrossed in search operation, it is not difficult for someone to

put the tainted money in a rack that was lying just behind the

accused officer. Thus, defence raised shows its credible

probability from the facts and circumstances. Learned trial

Court properly analysed all these aspects. On a reconsideration

of the evidence of prosecution, this Court could not find any

reason to disagree with the findings of the learned trial Court.

Therefore, finding of the learned trial Court that it could not

Dr. VRKS, J Crl.A.No.941 of 2007

believe that the tainted money could be connected to accused

officer is a finding concluded on proper appreciation of evidence.

17. PW.6 in his cross-examination stated that this accused

officer is not the sanctioning authority for passing his bill. Thus,

among a chain of officers, accused officer is one who has to

process the file. PW.6 stated that on 04.01.2002, accused officer

demanded him the bribe amount. This witness also said that he

was sending letters to University authorities for completion of

processing of his bill. He also admitted that for his failure to

complete the work within the prescribed period of 90 days for a

contract that he obtained on 20.02.1999 and despite certain

extensions, he could not complete it, he was fined by the

University authorities for Rs.500/- which was earlier to the

present crime incident. He also said that he knew that his file

was pending with Y.Ramayya. Ex.P.13 is representation dated

04.01.2002 by PW.6 to the University Engineer about the delay

in processing of his file. Be it noted, it is on that day according

to PW.6, this accused officer demanded the bribe amount.

Learned trial Court on analysis of the evidence and on perusal

of Ex.P2 to P13 and various other documents recorded a finding

that the last occasion on which the accused officer made an

Dr. VRKS, J Crl.A.No.941 of 2007

endorsement on the file was on 30.06.2001 and in the given

circumstances, he made a positive note to the University

authorities. The present trap occurred on 10.01.2002 which was

subsequent to the above referred 30.06.2001. These aspects

would show that when the relevant file was pending with the

accused officer, to the extent possible his endorsement on

30.06.2001 was not against the interest of PW.6. It is in the

evidence of PW.6 that earlier to this, certain relevant objections

were raised by the accused officer indicating as to why the bill

could not be completed. It was elicited through PW.6 that the

M-Book which is crucial in finding out the achievements of

contractor, there were several corrections unattested. PW.6

admitted that the contract of Electrical Works require certain

qualification and he did not possess them and he admitted that

there were items in the newspaper questioning the awarding of

contract. There are several other facts elicited by defence.

Learned trial Court duly analysed all these aspects. It said that

it was improbable to think that accused officer could have

demanded the money from PW.6 or PW.6 would have offered

him money. Thus, trial Court did not consider anything that

was not relevant and did not exclude anything that was

Dr. VRKS, J Crl.A.No.941 of 2007

relevant. Prosecution could not deny the relevance of all this

evidence. Learned Special Court considered about Section 20 of

Act,1988. Therefore, the same is extracted here:

"The provision makes it clear that it is for the prosecution to prove that the accused officer obtained money and once that is established, the presumption arises that it was accepted as a motive or reward as is mentioned in Section

7. It is already seen that the evidence adduced by prosecution could not make a reasonable man to think that the accused officer received or obtained Rs.5,000/-/M.O.3 from PW.6. Therefore the presumption has no bearing here."

• On analysis of evidence it is seen that prosecution failed

to establish where from the tainted MO.3 cash was

recovered and failed to prove that it was paid by PW.6 and

was received by the accused officer.

• In the light of what is stated above, this Court finds no

error on facts or law in the impugned judgment. The

grounds urged in the memorandum of appeal having been

considered, it is found that they are of no merit. Hence

point is answered against the appellant.

In the result, this appeal is dismissed by confirming the

judgment dated 12.01.2006 in C.C.No.25 of 2003 of the Court of

Dr. VRKS, J Crl.A.No.941 of 2007