Andhra Pradesh High Court - Amravati

State Of A.P., Rep By Inspector Of ... vs Sri Mohd.Azeezul Haq, on 31 March, 2023

Bench: A V Babu

           HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

              CRIMINAL APPEAL NO.897 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), Eluru Range, Eluru, West Godavari District,

challenging the judgment, dated 03.05.2005 in C.C.No.22 of

2000, on the file of Special Judge for SPE & ACB Cases,

Vijayawada ("Special Judge" for short), where under the learned

Special Judge, found the Accused Officer ("A.O" for short) 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 to 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, Anti-Corruption Bureau, Eluru Range, pertaining to

Crime No.11/ACB-RC(T)-EWG/99 of A.C.B., Eluru Range, is as

follows:
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      (i)    Sri Mohammed Azeezul Haq worked as Senior

Assistant/Head Clerk in the office of the Commercial Tax Officer,

Nidadavole, West Godavari District, as on 12.07.1999, as such,

he is a public servant within the meaning of Section 2 (c) of the

P.C. Act.

      (ii)   L.W.1-Koduri    Rama     Rao     is   resident    of

Jangareddygudem, West Godavari District and is a watch

mechanic and also owner of the building of Dy. Commercial Tax

Officer's Office at Jangareddygudem, West Godavari District. He

went to Office of Commercial Tax Officer, Nidadavole and met

Head Clerk (A.O.) and enquired about his pending bill for a sum

of Rs.52,000/- due to him by the Commercial Taxes Department

for the last six years towards rent arrears. Then, A.O. demanded

Rs.1,000/- for doing official favour i.e., for issuing cheque as

illegal gratification. He expressed his inability to pay the

demanded bribe of Rs.1,000/- to A.O. on 09.07.1999. When he

approached A.O. at his office, he reiterated his demand and

further informed that he would issue the cheque on receipt of

bribe only. L.W.1 reluctantly agreed to pay the amount. He

reported the matter to L.W.9-Dy.S.P., ACB, who registered as a

case in Crime No.11/ACB-RC(T)-EWG/99.         On 12.07.1999 at

1-40 p.m., A.O. was trapped by the ACB when he demanded
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and accepted the bribe of Rs.1,000/- for doing official favour.

Both hand fingers of A.O. proved positive result when they were

subjected to chemical test. The tainted amount was recovered

from his left side table drawer. Serial numbers of the currency

notes    in   the   pre-trap     were   tallied       with   the      post-trap

proceedings.    The portion of the left side table drawer of A.O.

yielded positive when it was subjected to chemical test. L.W.9-

Dy.S.P., seized the tainted amount, records and documents and

took up further investigation.

        (iii) The Government of Andhra Pradesh, being the

competent authority to remove A.O., accorded sanction order in

G.O.Ms.No.246, dated 29.04.2000, to prosecute A.O. Hence, the

charge sheet.

        4)    The learned Special Judge took the case on file

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

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

Cr.P.C., framed charges under Sections 7 and 13(1)(d) r/w

13(2) of P.C. Act against 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.7 were examined and Ex.P.1 to

Ex.P.14 and Ex.X.1 and M.O.1 to M.O.7 were marked. After
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closure of the evidence of the prosecution, 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)     The learned Special Judge on hearing both sides and

on considering the oral as well as documentary evidence, found

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 unsuccessful State, represented by

the Inspector of Police, ACB, Eluru, filed the present Criminal

Appeal, challenging the judgment of acquittal through the

Standing Counsel for ACB and Special Public Prosecutor.

      7)     Now, in deciding this Criminal Appeal, the points for

determination are as follows:

      (1) Whether the prosecution before the Court below
      proved that A.O. demanded the defacto-complainant to
      pay bribe of Rs.1,000/- prior to the trap and on the date
      of trap and accepted the bribe amount to do official favour
      in the manner as alleged?

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

      (3) Whether there are any grounds to interfere with the
      judgment of acquittal recorded by the trial Court?
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POINTS 1 to 3:-

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

for ACB and Special Public Prosecutor, appearing for the

respondent/State, would contend that the defacto-complainant

died prior to his examination during the course of trial and there

was no evidence to prove the demand prior to the trap and on

the date of trap. However, both hand fingers of A.O. yielded

positive result when they were subjected to chemical test and

A.O. dealt with the tainted amount and the amount was

recovered from the table drawer at his instance and it goes to

show that he demanded and accepted the tainted amount and

the Court below did not consider Section 20 of the P.C. Act, as

such, the Criminal Appeal is liable to be allowed.

9) Sri A. Hari Prasad Reddy, learned counsel appearing

for the respondent, would contend that A.O. put forth a theory

in the post-trap proceedings that the defacto-complainant thrust

the amount into his shirt pocket and he removed it and returned

to the defacto-complainant. But, the defacto-complainant kept

the amount in the table drawer and went away and in the

meantime, ACB rushed there. So, A.O. had a spontaneous

version explaining the circumstances in which he dealt with the

tainted amount. There was no substantial evidence to prove the

allegations of demand for bribe prior to the trap and on the date

of trap. As the prosecution failed to prove the foundational facts,

the presumption under Section 20 of the Act is not applicable.

Therefore, the learned Special Judge rightly analyzed the

evidence on record, as such, the Criminal Appeal is liable to be

dismissed.

10) Admittedly, before the Court below, the prosecution

did not examine the defacto-complainant, as he died prior to his

examination, as a witness. So, the prosecution examined P.W.1

to P.W.7. P.W.1 was the then Commercial Tax Officer to speak

about the budget for the year 1999-2000. P.W.2 was the Senior

Assistant in the Office of D.C.T.O., Jangareddygudem to speak

about the allotment of budget and that the defacto-complainant

contacted A.O. P.W.3 was the then Assistant Treasury Officer.

P.W.4 was the then Assistant Executive Engineer, who acted as

a mediator to the pre-trap and post-trap proceedings. The

prosecution examined P.W.5 to speak about Ex.P.11, sanction

orders to prosecute A.O. P.W.6 was the trap laying officer and

P.W.7 was the Inspector, ACB, who took part in the

investigation.

11) Insofar as the aspect that A.O. was a public servant

within the meaning of Section 2(c) of the P.C. Act and that the

prosecution obtained a valid sanction to prosecute him before

the Court is concerned, there is evidence of P.W.5 coupled with

Ex.P.11. A perusal of the evidence of P.W.5 and Ex.P.11 shows

that the sanctioning authority having regard to the material sent

by the ACB, accorded sanction to prosecute A.O. These findings

of the learned Special Judge are not challenged in this appeal

during the course of hearing of the appeal by the learned

counsel for the respondent.

12) Admittedly, according to the allegations of the

prosecution, the defacto-complainant lodged a report under

Ex.P.12 with D.S.P., ACB. As he died without examination, it

cannot be read in substantive evidence. Hence, absolutely, there

is no substantial evidence adduced by the prosecution before the

Court below to prove the allegations of demand of bribe prior to

the trap and during the post-trap proceedings. The prosecution

examined P.W.1 to speak about the procedure relating to

allotment of budget, etc., and it has nothing to do with the

allegations of demand. Though the prosecution examined P.W.2

to speak to the fact that the defacto-complainant approached

A.O., but he did not support the case of the prosecution. Even it

is not the case of the prosecution that P.W.2 was a witness to

the conversation between A.O. and defacto-complainant (died)

on the date of alleged demand for bribe or prior to the date of

trap. The evidence of P.W.3 has nothing to do with the

allegations of demand for bribe prior to the date of trap or on

the date of trap.

13) There is evidence of P.W.4, the mediator to the pre-

trap and post-trap proceedings and P.W.6, the trap laying officer

and P.W.7, the ACB Inspector, to prove the case against A.O. It

is no doubt true that the evidence of P.W.4 and P.W.6 means

that during the course of pre-trap proceedings, a copy of the

report and a copy of F.I.R. was given to the mediators by the

ACB, DSP with a request to ascertain its contents from the

defacto-complainant and that the DSP explained the importance

of phenolphthalein powder in the trap proceedings. Therefore,

their evidence goes to show that after application of

phenolphthalein powder to the tainted amount by the ACB

Constable at the instructions of D.S.P., the amount was kept

into the shirt pocket of the defacto-complainant with instructions

to give that amount to A.O. during the post-trap only on further

demand. Insofar as the post-trap proceedings is concerned, the

evidence of P.W.4 and P.W.6 is that after relaying pre-arranged

signal, they rushed into the office of A.O. and caught hold of

A.O. and when chemical test conducted, his both hand fingers

yielded positive result and when questioned A.O., he took out

the amount from the table drawer and handed over the same.

The evidence of P.W.4 and P.W.6 would prove that the amount

was recovered from the table drawer and his hand fingers gave

positive result when they were subjected to chemical rest.

14) Coming to the defence of A.O. even from Ex.P.9, it is

to the effect that the defacto-complainant thrust the amount

and when A.O. returned the same, again the defacto-

complainant kept the tainted amount in the table drawer of A.O.

and went away in spite of calling him. So, it is a case where the

amount was not recovered from the physical possession of A.O.

On the other hand, the amount was recovered from the table

drawer of A.O. The version of A.O. was spontaneous during the

post-trap proceedings when he was questioned by D.S.P. The

only thing that was established by the prosecution is that the

amount was recovered from the table drawer of A.O. and A.O.

dealt with the tainted amount. It is to be noticed that the

prosecution examined P.W.4, the mediator to the pre-trap and

post-trap proceedings. He was not a witness to the conversation

between A.O. and defacto-complainant. It is not a case where

P.W.4 was directed by ACB to observe the events between A.O.

and defacto-complainant. Even it is not the evidence of P.W.4

that he witnessed A.O. demanding the bribe amount from the

defacto-complainant. Therefore, the prosecution did not prove

the foundational facts to the effect that prior to the date of trap,

A.O. demanded the defacto-complainant to pay bribe of

Rs.1,000/- and even on another day he reiterated the said

demand and during the post-trap he demanded the defacto-

complainant and accepted the bribe amount of Rs.1,000/-.

15) 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.

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

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

held that to draw the legal presumption under Section 20 of the

P.C. Act, the foundational facts have to be proved by the

prosecution. It is also held that where the complainant died, the

demand and acceptance of bribe can be proved by

circumstances also. Here the prosecution did not rely upon any

circumstances except the recovery of tainted amount from the

table drawer of A.O. The A.O. gave an explanation in the post-

trap proceedings itself attributing something against the

defacto-complainant.

17) Having regard to the above, this Court is of the