Andhra Pradesh High Court - Amravati

State Rep By Insp. Of Police Acb., ... vs V. Venkata Somayajulu, on 21 March, 2023

Bench: A V Babu

        HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

             CRIMINAL APPEAL NO.945 OF 2007

JUDGMENT:-

      This   Criminal    Appeal    is   filed   by   the   State,    being

represented by the Inspector of Police, Anti-Corruption Bureau

("A.C.B." in short), Visakhapatnam, challenging the judgment,

dated 10.03.2006 in C.C.No.19 of 2000, on the file of Special

Judge for SPE & ACB Cases, Visakhapatnam ("Special Judge" for

short), where under the learned Special Judge, found the

Accused Officer ("A.O" for short) therein not guilty of the

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

of Corruption Act, 1988 ("P.C. Act" for short) and acquitted him

under Section 248(1) of the Code of Criminal Procedure

("Cr.P.C." for short).

      2)     The parties to this Criminal Appeal will hereinafter

be referred as described before the trial Court for the sake of

convenience.

      3)     The case of the prosecution, in brief, before the

Court below, according to the charge sheet filed by the

Inspector of Police, Anti-Corruption Bureau, Visakhapatnam,

pertaining     to    Crime        No.12/RC-WLR/98          of       A.C.B.,

Visakhapatnam, is as follows:
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      (i)   Sri Vadlamani Venkata Somayajulu i.e., the A.O.

worked as Senior Assistant, Office of the Mandal Revenue

Officer, Chintapalli Mandal, Visakhapatnam District and he was

working as such as on 23.06.1998. Thus, he is a public servant

within the meaning of Section 2(c) of the Act.

      (ii) The complainant Sri Penti Atchiraju is working as

Messenger in Union Bank of India, Chintapalli. His father Penti

Nookaraju has Ac.5-00 cents of land in Antharla Village and

executed a Will in his favour for Ac.1-00 cents of land from out

of Ac.5-00 cents of land owned by him. In first week of June,

1998, he approached the A.O. and presented original Will, copy

of Pattadar passbook of his father and an application signed by

his father requesting to register it and to effect necessary

entries in the revenue records about parting of Ac.1-00 cents of

land to him by his father. The A.O. asked him to bring a challan

of   Rs.100/-   by   paying   in   the   Sub-Treasury,   Chintapalli.

Accordingly, L.W.1 remitted the amount and handed over the

challan to the A.O. The A.O. asked him to meet him later. Later,

L.W.1 met A.O. twice or thrice, but the A.O. did not complete

the work.

      (iii) On 20.06.1998 at 11-00 a.m., when the A.O. visited

Union Bank of India where L.W.1 is working, he enquired about
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his work. Then, the A.O. told L.W.1 to come to his office. L.W.1

went to M.R.O. Office and met the A.O. The A.O. demanded him

to pay Rs.1,500/- towards bribe to get his work done. When

L.W.1 asked the A.O. to reduce the bribe amount, the A.O.

reduced it to Rs.1,000/- and instructed him to pay the same

within two or three days. L.W.1 reluctantly agreed to pay the

bribe. As he was unwilling to pay the bribe amount, he

approached D.S.P., ACB on 21.06.1998 at 4-00 p.m., and

reported the matter. D.S.P., ACB recorded the statement of

L.W.1 and obtained his signature and registered it as a case in

Crime No.11/RC-WLR/98 and took up investigation. The A.O.

was trapped on 23.06.1998 at 11-30 a.m. in the office of

M.R.O., Chintapalli, when he demanded and accepted the bribe

of Rs.1,000/- for attending official favor in favour of L.W.1. The

chemical test conducted to both hands of the A.O. yielded

positive result. The amount was recovered from the left side

shirt pocket of the A.O. The inner linings of the shirt pocket of

the A.O. proved positive when they were subjected to chemical

test.

        (iv) The Government of Andhra Pradesh, being the

competent authority to remove the A.O., accorded sanction
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order in G.O.Ms.No.14, dated 05.01.2000 of Revenue (Services-

IV) Department to prosecute the A.O. Hence, the charge sheet.

      4)    The learned Special Judge, took the case on file

under Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act and

after appearance of the A.O and after compliance of Section 207

of Cr.P.C., framed charges under Section 7 and Section

13(1)(d) r/w 13(2) of P.C. Act against the A.O and explained the

same to him in Telugu, for which he pleaded not guilty and

claimed to be tried.

      5)    During     the   course   of   trial,   on   behalf   of   the

prosecution, P.W.1 to P.W.3 were examined and Ex.P.1 to

Ex.P.10 were marked and M.O.1 to M.O.8 were marked. After

closure of the evidence of the prosecution, the A.O was

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

incriminating circumstances appearing in the evidence let in, for

which he denied the same and did not let in any defence

evidence.

      6)    He filed a written statement alleging that he did not

commit any offence and on 23.06.1998 when he was in his

office room, the deceased-defacto complainant came to him and

offered some money and he rejected it and deceased-defacto

complainant tried to stuff that amount into his hands and the
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A.O. pushed the currency notes with his both hands. But the

deceased-defact -complainant stuffed that amount into the shirt

pocket of the A.O. and after stuffing that amount, he hurriedly

left the A.O. The A.O. picked up the currency notes, left them on

the table and followed the deceased-defacto complainant. In the

meanwhile, Balayya Dora (L.W.4), who was present in the room

of the A.O., informed the A.O. that the deceased-defacto

complainant would come back, but, A.O. followed the deceased-

defacto complainant and called him and then the ACB officials

stopped him. The ACB officials did not record his statement and

there is no truth.

      7)    The learned Special Judge on hearing both sides and

on considering the oral as well as documentary evidence, found

the A.O not guilty of the charges framed against him and

accordingly, acquitted him under Section 248(1) of Cr.P.C. Felt

aggrieved of the same, the State, represented by the Inspector

of Police, ACB, Visakhapatnam, filed the present Criminal

Appeal, challenging the order of an acquittal through the

Standing Counsel for ACB and Special Public Prosecutor.

      8)    Insofar as the case of the prosecution the A.O. was

a public servant and there was a valid sanction to prosecute the

A.O. under the provisions of P.C. Act is concerned, there is no
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dispute before the Court below. The A.O. gave consent to mark

Ex.P.8 without examination of any witnesses and Ex.P.8 shows

the application of mind by the sanctioning authority. Even the

validity of Ex.P.8 is not in dispute in the present appeal by the

learned counsel for the respondent.

9) Now, the Court confined itself to the following points

for determination:

(1) Whether the prosecution before the trial Court proved beyond reasonable doubt about that the pendency of the official favour in respect of the work of defacto- complainant and that to do official favour, the A.O. demanded the defacto-complainant to pay bribe of Rs.1,000/- prior to the date of trap and on the date of trap and accepted the same?

(2) Whether the prosecution proved the charges against the A.O. beyond reasonable doubt?

(3) Whether there are any grounds to interfere with the judgment of acquittal recorded by the trial Court?

POINTS 1 to 3:-

10) As evident from the evidence available on record,

the prosecution could not examine the defacto-complainant as

he died prior to his examination as a witness before the Court

below. So, the evidence available before the Court below is that

P.W.1, who was the mediator to the pre-trap and post-trap

proceedings, P.W.2 to speak about the pendency of the official

favour and P.W.3 the trap laying officer.

11) P.W.1 was the mediator to the pre-trap and post-

trap proceedings. His evidence in substance is that on

23.06.1998 he and Sambasiva Rao-L.W.3 went to the office of

D.S.P., ACB, Visakhapatnam at the directions of their Higher

authorities. They were called inside at 5-00 a.m. by the D.S.P.

D.S.P. introduced his staff members and L.W.1-Penta Atchiraju

(died) and vice versa. At the instructions of D.S.P., they

ascertained the bonafidies of the statement of Atchiraju from

him. Atchiraju produced one five hundred rupee denomination

currency notes and five one hundred denomination currency

notes i.e, Rs.1000/-. They noted the same in the pre-trap. The

D.S.P. explained to them the importance of the phenolphthalein

powder in a trap case. At the instructions of D.S.P., H.C. 1364

applied phenolphthalein powder to the currency notes and kept

the amount in the left side shirt pocket of L.W.1 with

instructions to pay the amount to the A.O. only on further

demand. Later, H.C. rinsed his both hand fingers in the sodium

carbonate solution which gave positive result. To that effect,

pre-trap proceedings were recorded. As regards the post-trap,

he deposed that on the same day at 11-00 a.m., they reached

Chintapalli old bus stand and D.S.P. asked Atchiraju and S.I. to

proceed towards office of the A.O. and received pre-arranged

signal through S.I. at 11-30 a.m., and rushed to the office of the

A.O. They found Atchiraju at the entrance gate of the A.O.

Atchiraju pointed out the A.O. and the D.S.P. asked Atchiraju to

wait outside and he went out. They entered into the room. They

found the A.O. sat in the chair. They also found V.A.O., one

Senior Assistant in the room of the A.O. The D.S.P. disclosed his

identity. The A.O. started shivering and became stunned. The

A.O. started rubbing his hands fingers on the table. The D.S.P.

asked him not to rub his hands. Then, the chemical test was

conducted to the both hands of the A.O. They yielded positive

result. The D.S.P. asked the A.O. about payment of money by

Atchiraju. The A.O. picked out a wad of currency notes from his

left front shirt pocket and at the instructions of D.S.P., the other

mediator took charge of it. The statement of the A.O. was

incorporated in the post-trap proceedings. Serial numbers of the

currency notes were tallied. The inner linings of the shirt pocket

of the A.O. yielded positive result. The D.S.P. ascertained from

L.W.1 as to what happened and his version was recorded. The

D.S.P. seized a file containing seven sheets i.e., Ex.P.3, Register

of registered documents i.e., Ex.P.4 and a bunch of two

attendance registers from the office of the A.O. The rough

sketch was prepared. Ex.P.7 is the post-trap proceedings. Copy

of Ex.P.7 was furnished to the A.O.

12) P.W.2 being an M.R.O., he spoken about the

procedure relating to request of L.W.1. Through him, Ex.P.3(a),

Ex.P.3(b) and Ex.P.3(c) are marked. He testified that L.W.1 met

him in June, 1998 and enquired him about the result of

Ex.P.3(a) application. He entrusted the same to the A.O. and

asked him to process. The file was in the custody of the A.O.

Later he came to know about the trap.

13) P.W.3 is the trap laying officer and he spoken about

the factum of the statement which was recorded from Atchiraju

and pre-trap and post-trap proceedings.

14) Smt. A. Gayathri Reddy, learned Standing Counsel

for ACB and Special Public Prosecutor, appearing for the

respondent/ State, would contend that unfortunately before the

Court below the prosecution could not examine the defacto-

complainant, who died prior to his examination, as such, there

remained no evidence to prove the allegations of demand and

acceptance of bribe by the A.O. P.W.1 was not a witness to the

events. However, there was no dispute that the tainted amount

was recovered from the physical possession of the A.O. The

prosecution by examining P.W.2 proved that the documents

regarding the official favour of L.W.1 was seized from the

custody of the A.O. during post-trap. The A.O. dodged the

official favour of L.W.1 for the reasons best known to him and

demanded bribe and that he was caught hold of red handedly.

The prosecution established that the A.O. dealt with the tainted

amount. The trial Court erroneously disbelieved the case of the

prosecution. The trial Court did not apply the statutory

presumption under Section 20 of the P.C. Act in favour of the

prosecution case. Hence, the judgment of the learned Special

Judge is nothing but erroneous, as such, the criminal appeal is

liable to be allowed by convicting the A.O.

15) Sri G. Vijaya Kumar, learned counsel appearing for

the respondent, would contend the defence theory is that L.W.1

(deceased) stuffed the amount into left side shirt pocket of the

A.O. and the trial Court believed the defence theory. There was

no substantial evidence before the Court below to prove the

allegations that the A.O. demanded L.W.1 (deceased) to pay

bribe of Rs.1,000/-. P.W.1 was not a witness to speak about the

events happened between the A.O. and L.W.1 (deceased). The

true version of the A.O. was not recorded in the post-trap. So,

when the prosecution failed to prove the demand of bribe and

consequent acceptance of the same, the presumption under

Section 20 of the Act cannot be drawn, as such, the learned

Special Judge rightly disbelieved the case of the prosecution and

the judgment of the learned Special Judge is liable to be

confirmed by dismissing the criminal appeal.

16) In view of the above contentions advanced, firstly, I

will proceed to deal with as to whether the prosecution before

the Court below proved that the official favour in respect of the

work of the deceased-defacto complainant by name Atchiraju

was pending with the A.O. prior to the date of trap and on the

date of trap. There is no dispute about the presentation of

Ex.P.3(a) application, Ex.P.3(b) will and Ex.P.3(c) challan by the

defacto-complainant (deceased) with the A.O. seeking to make

necessary entries in the revenue records. This fact is not in

dispute. P.W.1, the mediator with regard to the events that were

happened during the post-trap proceedings, testified that the

statement of V.A.O. and Senior Assistant were incorporated by

him in the post-trap proceedings. M.R.O. also gave a statement.

They seized Ex.P.3, a file containing seven sheets, Ex.P.4,

registers. Apart from this, there is evidence of P.W.2, the

concerned M.R.O. to prove that P. Acthiraju-L.W.1 (deceased)

approached him in June, 1998 and enquired him about the

result of Ex.P.3, application and then he instructed the A.O.

immediately to process Ex.P.3 and by then Ex.P.3 file was in the

custody of the A.O. It is through him Ex.P.3(a), Ex.P.3(b) and

Ex.P.3(c) were marked. During the cross examination, the A.O.

did not dispute the custody of these documents with him.

Though the A.O. challenged the evidence of P.W.2 in this regard,

but, the suggestions put forth to P.W.2 are not at all tenable.

Apart from this, there is evidence of P.W.3 speaking about the

seizure of these documents from the custody of the A.O. The

seizure of these documents could be found in the post-trap

proceedings. So, when the prosecution was able to prove that

these documents were seized from the custody of the A.O.

during the post-trap, it can safely be concluded that the official

favour in respect of the work of the deceased-defacto

complainant was pending with the A.O. prior to the date of trap

and on the date of trap.

17) Now, another crucial aspect that has to be seen here

is as to whether the prosecution before the Court below proved

that the A.O. demanded the deceased-defacto complainant to

pay bribe of Rs.1,500/- and later reduced it to Rs.1,000/- prior

to the date of trap and further demanded him during the post-

trap and accepted the same. Admittedly, defacto complainant

was not examined before the Court below as he died prior to his

examination. Hence, to prove the so-called allegations of

demand prior to the date of trap and during post-trap, there

remained nothing. However, the prosecution sought to prove the

guilt of the A.O. basing on the evidence of P.W.1, the mediator

and P.W.3, the trap laying officer. According to P.W.1 and

P.W.3, during posts-trap after receiving pre-arranged signal,

they rushed to the office of the A.O. and P.W.3 got prepared two

glasses of sodium carbonate solutions and asked the A.O. to

rinse his both hand fingers and on doing so both hand fingers

yielded positive result i.e., pink colour. After that, P.W.3

questioned him as to what happened and his version was

mentioned in the post-trap proceedings. The A.O. produced wad

of currency notes from his left side front shirt pocket and at the

instructions of P.W.3, the other mediator Sambasiva Rao took

charge of those currency notes which are five hundred rupee

denomination and hundred rupee denomination. Their

particulars in Ex.P.3 were tallied with the amount. The inner

linings of the left side shirt pocket of the A.O. also yielded

positive result. Therefore, the prosecution before the Court

below established that the tainted amount was recovered from

the A.O. During the cross examination of P.W.1, the A.O. got

suggested that during post-trap that L.W.1-P. Atchiraju offered

money and he pushed with his both hands and Atchiraju

proceeded to leave the room of the A.O. Though the A.O. was

calling him and in the meantime, Balayya Dora-L.W.4 told to the

A.O. that Atchiraju would come back, in spite of it, the A.O.

followed him and in the meantime, raid party entered into the

office. It is the contention of the A.O. that the true version of

the A.O. was suppressed and it was not recorded. During the

cross examination of P.W.3 also the A.O. agitated that he did

not pick out M.O.5 from his shirt pocket and he did not handover

it to one of the mediators and that they found M.O.5 on the

table of the A.O. and that the version of the A.O. was not

recorded properly. He denied that after the statement of

Atchiraju-L.W.1 was recorded under Section 164 of Cr.P.C., he

called him and questioned him about the version of the A.O. that

amount was given to him forcibly. He denied that the A.O.

stated before him during post-trap that M.R.O. delayed

registration and L.W.1-deceased might have got angry and

presumed that work was held up for money as the A.O. was the

concerned clerk. Therefore, in substance the defence of the A.O.

is that the deceased-defacto complainant thrust the money.

18) Admittedly, in Ex.P.7, post-trap proceedings, there

was a different version as if the deceased-defacto complainant

without being asked by the A.O. voluntarily gave the amount to

him. Hence, when Ex.P.7 depicts the version of the A.O., as if

without any demand, the deceased-defacto complainant gave

some amount to him, but the contention of the A.O. is that the

true version of him relating to thrust theory was not recorded by

the mediator and the investigating officer. Needless to point out

here the solitary circumstances on which the prosecution

proposed to prove the guilt against the A.O. without proving

anything about the demand and acceptance of bribe is the

recovery of the tainted amount from the possession of the A.O.

19) Now, it is a matter of appreciation as to whether the

contention of the A.O. that the ACB officials did not incorporate

the true version of the A.O. is tenable. There is no dispute about

the factum of recording of the statement of L.W.1-Atchiraju by

Judicial First Class Magistrate under Section 164 of Cr.P.C. The

deceased-Atchiraju stated before the learned Magistrate under

Section 164 of Cr.P.C. which was referred by the learned Special

Judge in the judgment to the effect that when the D.S.P.

questioned the A.O. as to whether he gave amount to the A.O.

forcibly, he told to him that he did not give the amount with

force and he handed over the amount only on his demand and

then he (defacto-complainant) questioned the A.O. and the A.O.

did not reply. So, it is the purported version of L.W.1 (defacto-

complainant) before the learned Magistrate. But, when it comes

to Ex.P.7 that version is not there. So, it is clear that before the

learned Magistrate, the defacto-complainant put forth a version

that the D.S.P. questioned him as to whether he gave the

amount with force for which he denied. Hence, L.W.1

(deceased) would not have revealed the same before the

jurisdictional Magistrate, if those things were not happened

during the post-trap. But, curiously those things are missing

from Ex.P.7, post-trap proceedings. Hence, the contention of

the A.O. that his true version was not recorded in the post-trap

has support from the contents of Section 164 of Cr.P.C. of

defacto-complainant. Hence, the A.O. was able to probabalise a

theory that his true version was not found place in Ex.P.7, post-

trap proceedings. Considering the same, the learned Special

Judge disbelieved the case of the prosecution. It is the

contention of the appellant that the presumption under Section

20 of the P.C. Act has to be drawn.

20) Section 20 of the Prevention of Corruption Act,

1988 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 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.

21) The Hon'ble Supreme Court in the case of Neeraj

Dutta v. State (Government of NCT of Delhi)1, categorically

1 (2022) SCC OnLine SC 1724

held that to draw the presumption under Section 20 of the P.C.

Act foundational facts have to be proved by the prosecution.

Here, absolutely, the prosecution failed to prove the

foundational facts. In the above said decision, the Hon'ble

Supreme Court also dealt with a situation as to how the

evidence is to be appreciated when the defacto-complainant

turned hostile or died, etc. Here, the defacto-complainant was

expired without giving any evidence. According to the judgment

of the Hon'ble Supreme Court as above, the Court can also rely