Andhra Pradesh High Court - Amravati
Shaik Darbar Basha, vs The State Of Ap Rep By Its Spl. Pp ... on 1 May, 2023
Bench: A V Babu
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1491 OF 2007
Between:
Shaik Darbar Basha,
S/o.S.Abdul Rasheed,
Aged about 49 years,
Formerly Counselling Rehabilitation
and Marketing Officer,
O/o.District Manager, Andhra Pradesh
Vikalangula Co-operative Corporation,
Kadapa. .... Appellant
Versus
The State of AP,
Rep. by Standing Counsel &
Special Public Prosecutor for
SPE & ACB Cases,
High Court of A.P.
Amaravathi. .... Respondent
DATE OF JUDGMENT PRONOUNCED : 01.05.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wish to see
The fair copy of the judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
2
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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1491 OF 2007
% 01.05.2023
# Between:
Shaik Darbar Basha, S/o.S.Abdul Rasheed,
Aged about 49 years, Formerly Counselling
Rehabilitation and Marketing Officer,
O/o.District Manager, Andhra Pradesh
Vikalangula Co-operative Corporation,
Kadapa. .... Appellant
Versus
The State of AP,
Rep. by Standing Counsel &
Special Public Prosecutor for
SPE & ACB Cases,
High Court of A.P.
Amaravathi. .... Respondent
! Counsel for the Appellant : Sri M. Ravindra,
learned counsel, representing
Sri M. Venkata Narayana,
Learned Counsel.
^ Counsel for the Respondent : Sri S.M.Subhani,
Learned Standing Counsel-
cum-Special Public Prosecutor
> Head Note:
? Cases referred:
1. 1985 Crl.L.J. 1971
2. 1996 Crl.L.J. 3638
3. 2006 (1) ALT (Crl.) 114 (SC)
4. (1979) 4 SCC 172
5. (1997) 10 SCC 600
6. 1987 Crl.L.J. 533
7. (2014) 2 SCC 1
8. (2022) SCC OnLine SC 1724
This Court made the following:
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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1491 OF 2007
JUDGMENT:
This Criminal Appeal, under Section 374(2) of the Code of
Criminal Procedure, 1973 (for short, ‗the Cr.P.C'), is filed by the
appellant, who was the Accused Officer (AO) in Calendar Case
No.29 of 2004, on the file of the Court of Special Judge for SPE
and ACB Cases, Nellore, (for short, ‗the learned Special Judge'),
challenging the judgment, dated 26.10.2007, whereunder the
learned Special Judge found the AO guilty of the charges under
Sections 7 and 13(2) R/w. Section 13(1)(d) of the Prevention of the
Corruption Act, 1988 (for short, ‗the PC Act'), convicted him under
Section 248(2) Cr.P.C and, after questioning him about the
quantum of sentence, sentenced him to undergo Rigorous
Imprisonment for one year and to pay a fine of Rs.1,000/- in
default to suffer Simple Imprisonment for one month for the
charge under Section 7 of the PC Act and further sentenced him to
undergo Rigorous Imprisonment for one year and to pay a fine of
Rs.1,000/- in default to suffer Simple Imprisonment for one
month for the charge under Section 13(2) R/w. Section 13(1)(d) of
the PC Act. Both the above sentences shall run concurrently.
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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 State, represented by Inspector of Police, ACB, Kadapa
District, Tirupati Range, filed charge sheet in Crime No.3/RCT-
TCD/2003 under Sections 7 and 13(2) R/w. Section 13(1)(d) of the
PC Act alleging, in substance, that the AO by name Shaik Darbar
Basha, Counselling Rehabilitation and Marketing Officer (CRMO),
Office of the District Manager, Andhra Pradesh Vikalangula Co-
operative Corporation (for short, ‗the Corporation'), Kadapa
demanded and accepted bribe of Rs.2,000/- from LW.1 - Kondeti
Subbaramaiah to do official favour i.e., for release of loan amount
of Rs.25,000/- to LW.4 - Kondeti Subbamma, wife of LW.1.
4. The case of the prosecution, according to the averments in
the charge sheet, is that LWs.1 and 4 are the husband and wife
and both of them are physically handicapped. LW.4 filed Ex.P-1
application for subsidy loan in the Corporation on 07.05.2002 for
establishing a kirana shop. She submitted the necessary
documents. LW.1 met the AO for several times and enquired about
the loan of LW.4. AO told that Ex.P-1 was sent to the concerned
bank for sanction of loan. On 09.12.2002, AO met LW.1 at his
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house and informed that the loan of Rs.10,000/- was sanctioned
to LW.4 by State Bank of India, Kadapa Branch and an amount of
Rs.10,000/- was sanctioned by DRDA, Kadapa towards subsidy
and the department has to sanction Rs.5,000/- as margin money
and he has to process the file for sanction of Rs.5,000/- and to
send the same to the Bank for release of the loan amount of
Rs.25,000/-. For that, he demanded a bribe of Rs.3,000/-. LW.1
expressed his inability to pay the said amount as bribe. On
24.01.2003, LW.1 met the AO at the office of the Corporation and
enquired about the loan of LW.4. AO reiterated his earlier demand
of bribe. LW.1 expressed his inability to pay such huge amount as
bribe. AO reduced the bribe amount to Rs.2,000/- and told LW.1
to be ready with the bribe amount and he will visit the house of
LW.1 on 29.01.2003 at 10:00 a.m. to collect the same. AO also
instructed LW.1 that the work will not be done unless the bribe
amount is paid to him. As there was no other go, LW.1 agreed to
pay the bribe amount.
LW.1, who was not willing to pay the bribe amount, gave
Ex.P-2 report on 28.01.2003 to LW.15 - S. Seshagiri Rao, the then
DSP, ACB, Tirupati Range who in turn registered the same as a
case in Crime No.3/RCT-TCD/2003 under Section 7 of the PC Act
on 29.01.2003 at 07:00 a.m. and took up investigation. He
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conducted pre-trap proceedings in the presence of LW.2 - P.
Ravindranath Reddy, Mandal Engineering Officer of the office of
Mandal Parishad Development Officer, Kadapa and LW.3 - K.
Pardhasaradhi, Junior Assistant of the Office of Assistant Director
of Seri Culture, Kadapa under the cover of Ex.P-5. At that time the
mediators read over Ex.P-4 - carbon copy of FIR to LW.1 and
ascertained from him that he gave such report. LW.1 produced the
intended bribe amount of Rs.2,000/- and the serial numbers of
the same were noted by the mediators. At that time LW.1
produced Ex.P-3 - xerox copy of sanction letter by the SBI, Kadapa
which was given to him by AO. Thereafter, the amount was applied
with phenolphthalein powder and the same was kept with LW.1.
There, LW.15 collected MO.1 and MO.2 samples of sodium
carbonate powder and phenolphthalein powder used at that place.
The DSP instructed LW.1 not to pay the amount till there is
further demand by AO and that after such demand and
acceptance of bribe amount by AO, LW.1 has to come out of his
house and climb his tricycle and give signal by wiping his face
thrice with his handkerchief to HC - Venkataswamy, who in turn
was directed to relay the same to LW.16 - J. Sreenivasulu Reddy,
who in turn was instructed to relay the signal to the remaining
raid party. LW.15 also instructed LW.3 to follow LW.1 to his house
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and be present there unobtrusively, witness the transaction and
hear the conversation between LW.1 and AO.
Thereafter, the raid party went to the house of LW.1. LW.3
was in the northern side room. LW.1 and LW.4 were in their
house. At 10:20 a.m. AO came to the house of LW.1. LW.3 came
out of the northern side room and stood in the verandah of LW.1
and peeped into the room of LW.1. There AO demanded and
accepted the tainted amount of Rs.2,000/- from LW.1 and kept
the same in his right side pants pocket and told LW.1 to wait
outside on the ground that he has to talk with LW.4. LW.3
witnessed the incident and heard the conversation between AO
and LW.1. Thereafter, LW.1 came out of the house and gave
signal. DSP and other raid party went there. Both the hands of AO
were tested in sodium carbonate solution and both gave positive
result. Thereafter, the AO produced the amount. The serial
numbers of the currency notes were compared with the serial
numbers already noted in Ex.P-5 and both were tallied with each
other. The inner linings of the pants pocket of AO were tested in
sodium carbonate solution. It gave positive result. The resultant
solutions were transferred into separate bottles, sealed and
labeled. They are MO.3, MO.4 and MO.6. MO.5 - currency notes of
Rs.2,000/-, MO.7 - pant of AO was seized by LW.15. LW.15
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collected MO.8 - sample of sodium carbonate powder used at that
place. LW.15 enquired AO and AO stated that he collected the
money from LW.1 as margin money dues, but not as bribe. He
further stated that LW.1 was granted loan under Self-Employment
Scheme in the year beyond 1989 and that LW.1 was due of the
margin money to the Corporation and the same was recovered by
him as per the instructions of the Managing Director. DSP seized
the file Ex.P.6, which was with AO. Ex.P-6 file was containing
Ex.P.1 and enclosures. Thereafter, LW.8 - N. Eswar Reddy,
Photographer, was called and the said Photographer took photos -
Exs.P.7 to P.10. LW.16 prepared Ex.P.11 - rough sketch of the
scene of offence. Thereafter, DSP enquired LW.1, LW.3 and LW.4
and their versions were noted in Ex.P.12 - panchanama.
Thereafter, the raid party went to the office of AO and there
the DSP seized Ex.P.13 - Attendance Register, Ex.P.14 - Subsidy
Sanction proceedings 2002-03, Ex.P.15 - letter No.C1/125/2002,
dt.30.12.2002 of Assistant Director of the Corporation, addressed
to PDDRDA for sanction of subsidy. Ex.P.16 - Register of
submitting the applications reported to Bank from 01.04.2000 to
23.01.2003, in which there is Ex.P.16(A) - relevant entry in page
No.950, Ex.P.17 - loan documentation file concerned to Loan
Ledger Membership. The above said documents were produced by
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the District Manager of the Office and they were seized by LW.15.
DSP, ACB enquired LW.6 - S.G.F. Stephenson, District manager,
LW.5 - Smt. Mannuru Ammanamma, Junior Assistant in the
Corporation and both of them stated that since 1991 they were not
issuing notices to the persons, who did not pay the margin money.
The above said documents were seized and above versions were
noted in Ex.P.18 - panchanama. Thereafter, the raid party went to
the house of AO and searched his house but found no
incriminating material. Ex.P.19 is the formal search list. LW.15
submitted the material objects and records to the trial Court. He
handed over further investigation to LW.16.
LW.16 got recorded the 164 Cr.P.C. statement of LW.1
through Spl. Judicial First Class Magistrate for Proh. & Excise
Offences, Kadapa. He examined LW.5, LW.6, LW.7 - M.J. Samuel,
Assistant Manager, Development Banking Division, SBI, Kadapa,
LW.8 - N. Eswar Reddy of Malli Photo Studio and Video, LW.9 - M.
Gopal Reddy, Assistant Project Officer, DRDA, Kadapa, LW.10 -
Korivi Narayana, whose house is opposite to the house of LW.1,
LW.11 - Naguri Rajaiah and LW.12 - Cheppali Venkateswarlu,
beneficiaries of the Corporation. LW.16 collected Ex.P.24 - Savings
Bank Account of LW.1 and LW.4 of Syndicate Bank, Kadapa.
Thereafter, LW.16 served a notice dt.07.03.2003 to AO calling for
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his explanation. On that AO submitted a letter on 10.03.2003
requesting LW.16 to supply copies of documents. Then LW.16 sent
a letter to AO to come to Office and to verify the documents. But
AO did not turn up. After completion of investigation, LW.16
submitted final report to Director General, ACB for sanction
orders. LW.13 - B.D.V. Prasad Murthy, Managing Director of the
Corporation, Hyderabad issued Ex.P.14 - sanction order to
prosecute the AO. Thereafter, LW.16 filed charge sheet.
5. The learned Special Judge took cognizance of the case
under the above provisions of law and, after appearance of the AO,
by complying the necessary formalities under Section 207 Cr.P.C,
framed charges under Sections 7 and 13(2) R/w. Section 13(1)(d)
of the PC Act against the AO, read over and explained the same to
him in Telugu for which he pleaded not guilty and claimed to be
tried.
6. To bring home the guilt of the AO, the prosecution before the
Court below, examined PWs.1 to PW.9 and got marked Exs.P-1 to
P-15, P-15(A), P-16, P-16(A), P-17, P-17(A), P-17(B) and P-18 to
P-24.
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7. After closure of the evidence of the prosecution, AO was
examined under Section 313 Cr.P.C with reference to the
incriminating circumstances appearing in the evidence let in by
the prosecution, for which he denied the same and got filed certain
documents and got marked as Exs.D-1 to D-25 and also filed his
statement under Section 313 Cr.P.C.
8. The learned Special Judge, on hearing both sides and after
considering the oral and documentary evidence on record, found
the AO guilty of the charges, as above, and convicted and
sentenced him as above.
9. Felt aggrieved of the same, the unsuccessful accused in C.C.
No.29 of 2004, on the file of the Court of Special Judge, Nellore
filed the present Criminal Appeal.
10. Now, in deciding this Criminal Appeal, the points that arise
for consideration are:
1) Whether the prosecution before the Court below
proved that AO is a public servant within the meaning
of Section 2(c) of the PC Act and whether the
prosecution obtained a valid sanction order to
prosecute him for the charges framed?
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2) Whether the prosecution before the Court below
proved pendency of official favour pertaining to the
work of PW.1 with AO prior to the date of trap and on
the date of trap?
3) Whether the prosecution before the Court below
proved that AO demanded PW.1 to pay the bribe prior
to the date of trap and on the date of trap, accepted the
said amount from PW.1 towards bribe within the
meaning of Section 7 of the PC Act and by doing so, he
obtained any pecuniary advantage within the meaning
of Section 13(1)(d) R/w. Section 13(2) of the PC Act?
4) Whether the prosecution before the Court below
proved the charges framed against the AO beyond
reasonable doubt and whether there are any grounds
to interfere with the impugned judgment of the learned
Special Judge?
11. POINT No.1: In the grounds of Appeal, the appellant
challenged the findings of the Court below on the ground that the
learned Special Judge erred in holding Ex.P-22 - sanction order is
valid. The contention of learned counsel for the appellant in the
grounds of Appeal is that in view of the admissions made by PW.7,
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the DG, ACB sent the draft sanction order along with the final
report as such the sanctioning authority issued Ex.P-22 basing on
the draft sanction order without any application of mind and the
Court below failed to look into the same.
12. In the light of the above, now it is appropriate to refer the
evidence of PW.7. Coming to the evidence of PW.7, he is a Junior
Assistant in the office of Managing Director, A.P. Vikalangula
Corporation, Hyderabad. Since two months, he was looking after
the Establishment Section. Prior to that, he used to look after the
files under which sanction orders are issued to prosecute the
employees of their Corporation. He brought the file under which
sanction order is issued to prosecute the AO. Their Managing
Director authorized him to give evidence. DG, ACB sent copies of
FIR, Mediators Reports 1 and 2, final report and gist of the
statements of the witnesses. After processing of the file, it was sent
to the Legal Officer and thereafter to B.D.V.Prasad Murthy, the
then Managing Director of his Corporation. Murthy issued Ex.P-22
sanction order to prosecute the AO. He can identify his signature.
Ex.P-22 contains the signature of Murthy. During cross-
examination, he deposed that he is giving evidence basing on the
record. He denied that he is not competent to speak about Ex.P-22
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and Ex.P-22 was issued without application of mind as such it is
invalid.
13. Firstly, this Court is of the considered view that during the
course of cross-examination of PW.7, AO did not dispute that
PW.7 worked under the then Managing Director - Murthy as such
he can identify his signature. So, PW.7 is competent to identify the
signature of Murthy. As seen from Ex.P-22, the sanctioning
authority looked into the allegations in the light of the report
lodged by PW.1, further pre-trap and post-trap proceedings.
Further, it literally reads that the sanctioning authority looked
into final report, copy of FIR, copy of mediator reports, statements
of the witnesses, looking into the circumstances of the case and on
satisfaction arrived, came to a conclusion that AO should be
prosecuted in a Court of law for the offences under Sections 7 and
13(2) R/w. Section 13(1)(d) of the PC Act. So, Ex.P-22 speaks
about the material sent by the DG, ACB and application of mind
by the sanctioning authority. It is no doubt true that during cross-
examination, PW.7 deposed that in Ex.P-22 file there is a draft
sanction order sent by the DG, ACB. It is to be noticed that the
DG, ACB sent the draft sanction order for the notice of the
sanctioning authority with regard to the form in which sanction is
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to be issued. It does not make Ex.P-22 invalid. What is criterion is
the application of mind by the sanctioning authority. Ex.P-22
discloses application of mind by the sanctioning authority.
14. Before the Court below, the AO canvassed a contention by
relying upon the decision of the High Court of Orissa in Md.
Tafajul Rahman v. State of Orissa1 and a decision of this Court
in CBI/SPE, Hyderabad v. P. Muthuraman2 that Ex.P-22 is
invalid. Those are the cases where there was no application of
mind and further there was no evidence as to the material perused
by the sanctioning authority. The learned Special Judge
distinguished the facts of those cases with that of the present one.
The learned Special Judge relying on the decision of the Hon'ble
Apex Court in State, through Inspector of Police, A.P. v. K.
Narasimhachary3, wherein it was held that the order of the
authority sanctioned can be proved (1) by producing the original
sanction, which itself contains the facts constituting the offence
and the grounds of satisfaction or (2) by adducing evidence
alinude to show that the facts were placed before the Sanctioning
Authority and the satisfaction arrived at by it, held that Ex.P-22
1 1985 Crl.L.J. 1971
2 1996 Crl.L.J. 3638
3 2006 (1) ALT (Crl.) 114 (SC)
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discloses perusal of the material by the sanctioning authority as
such it is valid one.
15. In Narasimhachary (3rd supra), the Hon'ble Apex Court by
relying on the decision in Mohd. Iqbal Ahmed v. State of
Andhra Pradesh4 held the manner of proof of sanction as above.
Under the circumstances as PW.7 was competent to identify the
signature of the sanctioning authority and as Ex.P-22 discloses
that necessary material was forwarded by the DG, ACB to the
sanctioning authority and as the sanctioning authority having
gone through the said material issued the sanction order, it
cannot be held that Ex.P-22 is invalid. In my considered view, the
prosecution before the Court below proved a valid sanction under
Section 19 of the PC Act so as to prosecute the AO under Sections
7 and 13(2) R/w. Section 13(1)(d) of the PC Act. The point is
answered accordingly.
16. POINT Nos.2 to 4: Sri M. Ravindra, learned counsel,
representing learned counsel for the appellant, canvassed the case
of the prosecution in brief and would contend that the AO was
Counselling Rehabilitation and Marketing Officer in the Office of
District Manager of the Corporation. The beneficiaries under the
4 (1979) 4 SCC 172
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Corporation are physically handicapped persons. In the light of the
above, nature of the duties of AO are somewhat different. As
admitted by PW.5, as part of duty and as the beneficiaries are
physically handicapped, AO has to go the beneficiaries for
counselling, documentation and for recovery of loan and in that
view of the matter only AO visited the house of PWs.1 and 3 on the
date of trap, that too on their request to collect the previous dues
relating to margin money of the year 1986 only. So, the presence
of AO on the date of trap at the house of PW.1 and PW.3 was not
with any mala-fide intention. The office of AO received Ex.P-1 from
PW.3 on 07.05.2002 and it was duly forwarded to proper
authorities. In the report lodged by PW.1 under Ex.P-2, there was
no date of demand of alleged bribe. According to Ex.P-3, the State
Bank of India sanctioned the loan amount to PW.3 on 09.12.2002
only. PW.1 deposed that on 09.12.2002 itself AO came to their
house and demanded the bribe of Rs.3,000/-. According to the
evidence of PW.4 and PW.5, they handed over Ex.P-3 proceedings
to AO on 13.12.2002. So, it was rather improbable that AO could
visit the house of PW.1 and PW.3 on 09.12.2002. By 09.12.2002,
AO was not capable of doing any official favour. PW.1 deposed
deliberately attributing the demand against AO on 09.12.2002. By
that date, there was no official favour pending. The evidence of
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PW.4 and PW.5 disproves the case of the prosecution that on
09.12.2002, AO proceeded to the house of PWs.1 and 3 and
demanded the bribe. The question of his going to the house of
PWs.1 and 3 does not arise because by then, he did not receive
Ex.P-3.
17. He would further contend that the prosecution has also
alleged that on 24.01.2023 when PW.1 went to the Office of AO
and met him, he again demanded the bribe amount as that of
Rs.2,000/-. As admitted by PW.1 during cross-examination AO
shown PW.1 as defaulter as he committed default several times
with regard to the previous loans. Apart from this, on one
occasion, PW.1 was not sanctioned with the loan under NHFDC.
So, PW.1 bore grudge against AO thinking that AO was
responsible for not sanctioning of that loan. Apart from this, AO
shown PW.1 as defaulter consistently in the relevant register
maintained i.e., the reason why PW.1 falsely implicated the AO in
this case. He would contend further that on the date of trap, PW.1
informed AO through landline that if he comes to their house on
29.01.2003 he will pay some margin money towards earlier dues
of the loan pertaining to the year 1986 as such AO visited the
house of PW.1 and also carried the documents pertaining to the
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request of PW.3 under Ex.P-1 as such he was trapped falsely.
PW.1 categorically admitted about the non-payment of margin
money of the year 1986 till the date of trap. The said due of
Rs.2,000/- coupled with the interest thereon was not in dispute.
So, when PW.1 expressed his intention to pay the part of the above
dues, AO went to the house of PW.1 and collected the same and
within no time without allowing AO even to issue a temporary
receipt, he was trapped. PW.2 was a stock witness, who obliged
the ACB officials to support the case of the prosecution as
accompanying witness and as having witnessed the events
between AO and PW.1. In the post trap, PW.2 claimed that he
witnessed the events by remaining in verandah but in the rough
sketch no such verandah was shown. So, without witnessing
anything, he claimed as if he witnessed the events between PW.1
and AO during the post trap proceedings.
18. He would further contend that according to the case of the
prosecution, PW.1 and PW.3 are the husband and wife. Their
answers in cross-examination prove that in Ex.P-1 PW.3 did not
mention the name of PW.1 as husband. PW.1, who was working as
an Attender in MDO Office Rajampet, did not show the name of
PW.3 in the Service Register as his wife and on the other hand he
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has shown the name of another woman as his wife. Though PW.1
claimed that he married PW.3 without getting any divorce etc., but
it is not at all proved. So, when PW.1 and PW.3 were not the
husband and wife, PW.1 had no locus-standi to lodge Ex.P-2 report
against AO. The conduct of PW.1 is such that he was a chronic
defaulter and AO was duty bound to show him as defaulter and
PW.1 eventually trapped AO by asking AO to come to his house to
collect earlier dues of Rs.2,000/- under margin money for the loan
availed in the year 1986. He would further contend that as on
09.12.2002, there was no official favour of PW.1 pending with AO
and there was no demand of bribe on that day and further the
evidence of PW.1 and PW.3 with regard to the allegations of
demand of bribe is not believable as PW.1 was a chronic defaulter
who was shown in the relevant register as defaulter by AO as such
it is un-safe to believe their evidence. The entire amount that was
received by AO from PW.1 was only relating to part of earlier dues
of margin money in connection with the loan of the year 1986. AO
spontaneously, when he was questioned by the DSP, ACB,
revealed in the post trap proceedings that he received Rs.2,000/-
from PW.1 as margin money but not as bribe. The evidence of
PW.5 reveals that AO was competent to receive the amounts for
loan recoveries by visiting the houses of the beneficiaries. Learned
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counsel for the appellant in support of his contentions relied upon
the decisions of the Hon'ble Apex Court in Mohmoodkhan
Mahboobkhan Pathan v. State of Maharashtra5, Bal Krishan
Sayal v. State of Punjab6 and Lalita Kumari v. Government of
Uttar Pradesh and others7. He would further contend that a
duty was cast upon the DSP, ACB to conduct preliminary enquiry
basing on the contents in Ex.P-2 and according to the evidence of
PW.8, the DSP, ACB he conducted discreet enquiry and neither
Ex.P-2 nor the FIR would reveal the same as such it is also fatal to
the case of the prosecution. With the above contentions, he would
submit that the prosecution failed to prove the charges before the
Court below beyond reasonable doubt, but the learned Special
Judge on erroneous appreciation of the facts and law convicted
and sentenced the appellant as such the judgment of the learned
Special Judge is liable to be set-aside by acquitting the appellant
of the charges.
19. Sri S.M.Subhani, learned Standing Counsel-cum-Special
Public Prosecutor for ACB, appearing for the respondent-State,
would contend that PW.3 submitted an application under Ex.P-1.
5 (1997) 10 SCC 600
6 1987 Crl.L.J. 533
7 (2014) 2 SCC 1
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PW.1 and PW.3 are the husband and wife affected with Polio and
they are physically handicapped. There was no dispute about
receipt of Ex.P-1 application of PW.3 by the AO and sending of the
application under Ex.P-1 by the AO to his superior authorities.
State Bank of India on 09.12.2002 issued the proceedings
sanctioning the loan, out of which the subsidy amount is
Rs.10,000/- and margin money is Rs.5,000/-. It is the specific
case of prosecution that AO brought copy of that order and shown
to PW.1 at his house and demanded bribe of Rs.3,000/-. PW.1
categorically testified that AO visited his house on 09.12.2002 and
shown the copy of loan sanction order. During the course of cross-
examination it was not denied. Though on record AO came into
possession of the documents from PW.4 and PW.5 on 13.12.2002
but the evidence of PW.1 goes to prove that AO came to their
house on 09.12.2002 and shown the copy of the order and
demanded bribe. Even otherwise, AO was the proper person to
process the request of PW.3 and even according to him, he was
authorized to visit the house of PW.1 and PW.3 to collect
necessary papers as such prosecution before the Court below
proved pendency of the official favour with AO as on 09.12.2002.
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20. He would further contend that further allegation is that on
24.01.2003 when PW.1 went to the office of AO, AO demanded him
to pay the bribe of Rs.2,000/- and by stating that he would come
to the house of PW.1 while going to his office on 29.01.2003 and
would collect the amount. This narration was there in Ex.P-2
report and it is also deposed by PWs.1 and 3. The prosecution
adduced convincing evidence to prove pendency of official favour
and demand made by AO on 09.12.2002 and 24.01.2003. PW.1 -
de-facto complainant and PW.2, accompanying witness and
mediator, further deposed about the demand made by AO on
29.01.2003 during the post trap to pay a sum of Rs.2,000/- as
bribe and payment of the same by PW.1 to AO and later recovery
of the same. Their evidence is quite consistent in this regard. The
chemical test conducted to both hand fingers of AO yielded
positive result. PW.1 and PW.3 withstood the cross-examination.
Before the Court below, the validity of the marriage between PW.1
and PW.3 was not supposed to be proved. It is sufficient to
establish that they are residing under one roof as husband and
wife. There is no dispute about the visit of AO to the house of PW.1
and PW.3 when they were residing together. Recovery of the
tainted amount is admitted. AO set up a false defence that what
he received from PW.1 was dues of margin money of the year
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1986. He was not supposed to collect such amount without there
being any receipt. It is not his case that he carried any receipt
book to the house of PW.1 and PW.3. Even according to the
evidence of PW.5, whenever AO collects any amount at least he
was supposed to issue temporary receipt. So, the plea of the AO
that he collected the amount of Rs.2,000/- towards margin money
dues of the year 1986 is not tenable. The fact that Ex.P-6 was
seized from AO during the post trap means that AO went to the
house of PW.1 in connection with official favour only. The Court
below with cogent reasons believed the case of the prosecution as
such Appeal is liable to be dismissed.
21. In the light of the above contentions advanced, firstly the
Court has to decide the pendency of official favour of PW.1 and
PW.3 with AO prior to the trap and on the date of trap. PW.1
deposed that he is an Attender in the office of MDO, Rajampet. K.
Subbamma - PW.3 is his wife. His both legs were Polio affected.
His wife was also affected with Polio to her legs. Both of them are
physically handicapped. Previously, they used to run STD Booth at
Kadapa Town. As the STD Booth owner vacated them from the
said site, they had no work. He got applied through his wife for a
subsidized loan to the Assistant Director, A.P. Handicapped Co-
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operative Corporation for running a kirana shop. He submitted
medical, income and residential certificates of his wife. Ex.P-1 is
the application along with enclosures. AO is Counselling
Rehabilitation and Marketing Officer in the Corporation. They met
AO several times. AO revealed that their application was forwarded
to the SBI and DRDA and the loan amount would be sanctioned.
On 09.12.2002, AO came to their house and informed them that
SBI sanctioned a loan of Rs.10,000/- and DRDA sanctioned
Rs.10,000/- as subsidy and if the Corporation sends Rs.5,000/-
as margin money, the Bank would give Rs.25,000/- to them and
for doing the said work, AO demanded Rs.3,000/- as bribe. They
expressed their inability to do so. He has shown the letter of Bank
and sanction order of the DRDA. AO told them that if the said
amount was not given the loan will not be granted. On
24.01.2003, he (PW.1) went to the office of AO and met him and at
that time AO told him that unless the bribe amount is given, his
work will not be done. AO demanded him to pay at least
Rs.2,000/- as bribe. AO told him that on 29.01.2003 while going
to his office he would come to their house and then he (PW.1) has
to pay the said amount. So, he thought of to give a report to ACB
Officials. On 28.01.2003, he presented Ex.P-2 report to the DSP,
ACB. He further spoken about the pre-trap proceedings on
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29.01.2003 and further post trap proceedings. His evidence with
regard to pendency of the official favour as on 29.01.2003 is that
AO came to their house on his motorbike on 29.01.2003 and he
stopped the vehicle and came into his house. AO enquired PW.1
whether he secured the bribe amount. He answered in an
affirmative. Then, he demanded PW.1 to pay the bribe amount.
While giving the amount PW.1 told to AO that till the loan is
sanctioned he is responsible and so saying he paid the amount to
AO. AO received the amount with his right hand, counted the
same with his both hands and kept it in his right side pant pocket.
AO asked him to go outside as he has to talk something with his
wife and he came out and gave a pre-arranged signal. ACB Party
came into his house and asked PW.1 not to come inside till he was
called by them. Two hours thereafter he was called inside of the
house and he was enquired what happened and he narrated the
facts.
22. Coming to the evidence of PW.3, the applicant under Ex.P-1,
who claimed to be the wife of PW.1, she deposed about her
application under Ex.P-1. According to her, they met AO in his
office who told her that he would come to their house after one day
after they met the AO. When he came to their house he told them
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that the margin money was sanctioned but subsidy was not
sanctioned and for that he demanded a bribe of Rs.3,000/-. They
expressed their inability to do so. Her husband, PW.1 went to the
office of AO and AO reiterated his demand. AO told her husband to
pay at least Rs.2,000/- and he would come to their house on
29.01.2003. She advised her husband to give report to ACB. On
29.01.2003, AO came to their house and sat on a chair. Another
person was there in the vacant space by holding a rafter. AO
enquired them as to whether they are ready with the bribe. Her
husband gave Rs.2,000/- to AO. AO received the same with his
right hand, counted the same with his both hands and kept the
same in his right side pant pocket. Then her husband went
outside. In the meanwhile, ACB officials came there. DSP, ACB
examined her.
23. PW.2, the mediator to the pre-trap and post-trap
proceedings insofar as the seizure of documents is concerned,
testified that during the post trap after AO was trapped in the
house of PW.1, after he accepted the bribe amount of Rs.2,000/-
DSP, ACB seized Ex.P-6 file which is Ex.P-1 and enclosures from
the custody of AO. He further testified about seizure of certain
documents after going to the office of AO.
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24. Coming to the evidence of PW.4 and PW.5, who are
examined by the prosecution regarding the procedural aspects to
process the application of PW.1, PW.4 deposed that the procedure
of processing the loan application of a handicapped person is that
after they receive the application they would enter the same in the
loan application receiving register (Ex.P-16). They will send the
same to the concerned Bank for issuance of loan sanction letter.
After receipt of provisional sanction from the Bank, they would
send the file to the Counselling Rehabilitation and Marketing
Officer for obtaining documents. AO is the CRMO. After
documentation, AO will submit the same to the District Manager.
Then, they would circulate the file to the Joint Collector.
Application of PW.3 was received to their office on 07.03.2002.
The Junior Assistant, in charge of the Register entered the same in
Ex.P-16 register. The relevant entry is Ex.P16-A. Then the
application was sent to SBI, Kadapa Main Branch on the same day
i.e., on 07.03.2002. The Bank sent original provisional sanction
letter on 09.12.2002, Ex.P-20. They received the same on
10.12.2002. They entrusted the file to AO on 13.12.2002. From
then the file was with AO till the date of trap.
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25. According to the evidence of PW.5, Ex.P-1 was application of
PW.3 received on 07.05.2002 and it was entered in Ex.P16-A
register and was sent to SBI, Kadapa. They received Ex.P-20
consent letter from the Bank on 10.12.2002. They handed over the
file to AO on 13.12.2002 for documentation, subsidy and margin
money. From then the file was with AO till the date of trap. DRDA
sanctioned subsidy of Rs.10,000/-. Till the entire amount
including the loan amount, margin money and subsidy amounts
are paid to the applicant, file will be with the AO.
26. PW.8, the Investigating Officer and Trap Laying Officer,
spoken about the seizure of Ex.P-6 file at the house of PW.1 and
PW.3 from the custody of AO and further certain documents at the
office of AO.
27. During cross-examination, PW.1 deposed that in his Service
Record the name of his wife is noted as Venkatamma. Witness
says that Venkatamma is his first wife. He married her in the year
1984. He has one daughter and two sons through Venkatamma.
Their particulars are also noted in the service record. He married
LW.4 - Subbamma in the year 2001 at Tirumala. There is no
documentary proof to that effect. By the time of his second
marriage, his first wife was alive and even now she is alive. He did
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not inform to the Government that LW.4 - Subbamma is his
second wife. In Ex.P-1 application, LW.4 - Subbamma even did not
state her husband's name but only stated her father's name. He
does not know whether Subbamma married one Chenchu Nagalla
Subbarayudu on 29.06.1999 and the same was registered with the
Registrar of Marriages, Kadapa. He does not know whether
Subbamma and Subbarayudu married under the Special Marriage
Act. He denied that he knows the marriage of Subbamma with
Subbarayudu.
28. Coming to the evidence of PW.3 in cross-examination, she
deposed that she married PW.1 on 06.03.2001 at Tirumala. She
does not know the kalyanamandapam in which her marriage was
performed. She has no proof to prove the marriage with PW.1.
Subbarayudu is her first husband. It was registered before the
Joint Sub-Registrar, Kadapa on 29.06.1999. She obtained divorce
from her first husband by lodging a complaint in Taluq police
station. Her first husband gave an undertaking that he has no
connection with her.
29. By virtue of the above answers elicited from PW.1 and PW.3,
the contention of the appellant is that as PW.1 and PW.3 were not
the real husband and wife, PW.1 had no locus-standi to lodge
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Ex.P-1. It is to be noticed that according to Ex.P-2, report lodged
by PW.1, and the evidence of PW.1 and PW.3, their case is that
they are husband and wife respectively. Both are claiming that
they got married and further clearly admitted that they have first
wife and first husband respectively. They did not file any proof of
divorce etc. However, while deciding a case under the PC Act, with
the set of allegations like in Ex.P-2, the Court below was not
supposed to look into or was not supposed to adjudicate as to
whether the marriage between PW.1 and PW.3 is valid. There is no
denial of the fact that PW.1 and PW.3 are residing as husband and
wife under a single roof. Even according to the case of AO, it is AO
who visited the house of PW.1 and PW.3, even according to the
admissions made by him at the time of trap. So, when PW.1 and
PW.3 were residing as husband and wife, absolutely, PW.1 had
locus-standi to espouse the cause of PW.3 under Ex.P-1. Hence,
the contention of AO that PW.1 has no locus-standi to lodge Ex.P-2
is not tenable.
30. Admittedly, according to Ex.P-3, it was the letter issued by
the SBI on 09.12.2002. As seen from Ex.P-2, there was a whisper
that AO came to the house of PW.1 and PW.3 and shown the
letter, dated 09.12.2002 and demanded bribe of Rs.3,000/-.
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According to the evidence of PW.1, it was on 09.12.2002 AO came
to their house and shown the letter of sanction granted by the SBI.
It is no doubt true that according to the evidence of PW.4 and
PW.5, they received copy of Ex.P-3 on 10.12.2002 and handed
over the same on 13.12.2002. Basing on the above, the contention
of AO is that by 09.12.2002 no official favour was pending with
him as such allegations of demand and bribe as on that date
proved to be false.
31. To appreciate the said contention, it is pertinent to look into
the crucial answers spoken by PW.1 during cross-examination.
During cross-examination, PW.1 deposed that it is true that AO is
Counseling Rehabilitation and Marketing Officer and the
beneficiaries being physically handicapped, he has to go to the
house of beneficiaries for recovery of the loan amounts. Witness
volunteers that though AO is having such duty, he never
demanded him to pay the loan amount and on the other hand he
was informing him and other physically handicapped persons to
apply for loans under various schemes and that he will look after
sanctioning of the loan amounts and requesting the persons to
pay something to him. He admitted that he did not state the said
allegations either in Ex.P-2 report or in his 161 and 164 Cr.P.C.
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statements. It is to be noticed that during the probing cross-
examination made by AO when PW.1 deposed such an answer, it
cannot be taken as an improvement or contradiction. It is not as if
PW.1 developed the case during chief-examination, though it was
not there in Ex.P-2 or in his 161 or 164 Cr.P.C. statements. The
answers that are elicited from the mouth of a particular witness
cannot be taken as omissions. The spontaneous answer spoken by
PW.1 goes to reveal that AO was going around the physically
handicapped persons and asking them to apply for loans with an
assurance that he will look after sanctioning of the loan amounts
and further used to request them to pay something to him. So, it
is AO who elicited such answers during cross-examination of PW.1
which reveals that AO was fond of money. If that be the case, a
person like AO, who was fond of money, when he forwarded Ex.P-1
to the Bank would certainly be eager to know the status of the
application. The sanction order under Ex.P-3 is dated 09.12.2002.
So, AO having knowledge of Ex.P-3 ventured to go to the house of
PW.1 and PW.3 on 09.12.2002 though on record he came into
possession of the documents handed over by PW.4 and PW.5 on
13.12.2002. But according to the evidence of PW.1, AO has shown
the copy of sanction letter to him on 09.12.2002. During the
course of cross-examination of PW.1 nothing was suggested to
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PW.1 that on 09.12.2002 AO did not visit the house of PW.1 and
did not show the copy of the sanction letter. So, in the
circumstances it was not difficult for AO to get a copy of Ex.P-3
directly from the Bank on 09.12.2002. Under the circumstances,
the contention of AO that no official favour in respect of the work
of PW.3 was pending with him as on 09.12.2002 cannot stand to
any reason.
32. The further evidence of PW.1 is that on 24.01.2003 when he
went to the office of AO, he demanded a bribe of Rs.2,000/-. Even
according to the admissions made by AO and the evidence of PW.4
and PW.5 by 13.12.2002 AO was in possession of Ex.P-3 and
consequential documents. So, as on 24.01.2003 also official favour
in respect of PW.1 was pending with AO.
33. There is no denial of the fact that the Investigating Officer
seized Ex.P-6 during the post trap from the custody of AO in the
house of PW.1 and PW.3. Ex.P-6 contains Ex.P-1 file and its
enclosures. So, undoubtedly, as on the date of trap, official favour
in respect of the work of PW.1 was pending with AO.
34. The contention of AO is that as PW.1 was a chronic
defaulter, his evidence is not believable. It is to be noticed that
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during cross-examination AO elicited certain answers with regard
to due of Rs.2,000/- by PW.1 under margin money in respect of
the loan of 1986 and it will be appreciated hereafter while looking
into the defence theory that what AO received is only that amount.
35. Turning to the contention of AO that PW.1 and PW.3 bore
grudge against AO, PW.1 deposed that he applied for loan under
NHFDC after the loan covered under Ex.P-17(A) was pending and
he deposed that it was not sanctioned. He denied that as the loan
covered under Ex.P-17(A) was pending, the loan under NHFDC
was rejected. Witness volunteers that he did not pay the bribe
amount to AO as such the loan was not sanctioned to him. He
further admitted that he was defaulter with regard to the loan
availed previously. This Court would like to make it clear that
though PW.1 was a defaulter and even assuming that AO used to
show the name of PW.1 as defaulter but the fact remained is that
SBI under the cover of Ex.P-3 sanctioned Rs.10,000/- towards
loan and Rs.10,000/- towards subsidy and Rs.5,000/- towards
margin money. Absolutely, when the request of PW.3 was
considered positively by the Corporation and SBI with sanction of
loan to PW.3, it is rather improbable that PW.1 and PW.3 would
bore grudge against AO so as to implicate him in the false case.
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Hence, the contention of AO that PW.1 bore grudge against him is
not tenable.
36. In the light of the above, I am of the considered view that
prosecution before the Court below categorically proved pendency
of the official favour in respect of the application under Ex.P-1 of
PW.3 was pending before the AO and PW.1 was pursuing the same
before the trap as well as on the date of trap.
37. Next aspect that has to be considered is as to whether the
prosecution has proved before the Court below that AO demanded
PW.1 the bribe, prior to the trap and on the date of trap and
accepted bribe amount from PW.1. As seen from Ex.P-2, the case
of the complainant is that on 09.12.2002 AO came to his residence
and informed him about Ex.P-3 and demanded bribe of Rs.3,000/-
for which he expressed his inability. Further allegation is that on
24.01.2003, when he met the AO at his office, he demanded
Rs.2,000/- and though he expressed his inability, AO informed
PW.1 to get the money arranged and he would collect by coming to
his residence on 29.01.2003, while going to his office. Further case
of the prosecution is that on 29.01.2003 at the residence of PW.1
and PW.3, AO was caught red-handedly while accepting the bribe
amount on further demand. Further things that were narrated in
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Ex.P-12, post trap proceedings, were deposed by PW.1. PW.1 in
his evidence deposed the three dates i.e., 09.12.2002, 24.01.2003
and 29.01.2003 as the dates of demand. According to the evidence
of PW.3, though she did not speak about the incident, dated
09.12.2002 but she claimed that she came to know about the
demand made by AO on 24.01.2003 through her husband i.e.,
PW.1. PW.1 and PW.3 further deposed about the demand made by
AO during the post trap on 29.01.2003. There is a whisper in
Ex.P-18, the post trap proceedings, that PW.3 was physically
present when AO demanded PW.1 during the post trap the bribe of
Rs.2,000/- and accepted the same from PW.1. The Trap Laying
Officer also corroborated the version of PW.3 in Ex.P-12, post-trap
proceedings. PW.3 deposed about the demand made by AO on
29.01.2003 during the post trap and acceptance of the bribe
amount.
38. The prosecution examined PW.2, the accompanying witness.
According to him, he participated in the pre trap proceedings and
the contents of Ex.P-2 were referred to by PW.1, who confirmed
the same and when PW.1 produced the proposed bribe amount of
Rs.2,000/-, it was applied with phenolphthalein powder and it was
kept in the shirt pocket of PW.1 with directions to give the same
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on further demand by AO when he visited their house on
29.01.2003. He further spoken that he was instructed by the DSP,
ACB to follow PW.1 during the post trap and to closely observe the
events between PW.1 and AO. So, the evidence of PW.2 as regards
the post trap proceedings is that they started at 09:35 a.m. in a
Government jeep and it was stopped near Saibaba Temple in
Mrutunjayakunta by 09:45 a.m. DSP, ACB reiterated instructions
to him, PW.1 and Head-Constable. They proceeded towards the
house of PW.1. PW.1 went into southern room of his house. He
(PW.2) was on the eastern side of the house of PW.1. At 10:20 a.m.
AO came there. PW.1 and his wife were present. He (PW.2) went to
the place which is by the side of the door of the house so as to
hear the events between PW.1 and AO. AO enquired PW.1 whether
he secured the amount demanded by him and PW.1 stated that he
secured the bribe amount and then PW.1 took out the amount
from his shirt pocket and gave it to AO. AO received the amount
with his right hand, counted the same and kept it in his right side
pant pocket. AO stated that he has to talk with the wife of PW.1
and asked PW.1 to go out. Then, PW.1 went outside, climbed his
tricycle and gave pre-arranged signal. The Head-Constable
received the same and gave signal to DSP, ACB. Then, all the raid
party members came into the house of PW.1 along with them. He
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also went into the house of PW.1. DSP, ACB told PW.1 to be there
till he was called. He further spoken about the chemical test
conducted to both hand fingers of AO which yielded positive result
and amount was recovered from the AO. He further spoken about
the recovery of Ex.P-6, made up file. So, it is a case where insofar
as the demand, dated 29.01.2003, is concerned, apart from the
evidence of PW.1, the evidence of PW.2 and PW.3 is also available.
The demand dated 24.01.2003 is interlinked with the demand in
the post trap on 29.01.2003. The prosecution alleged that it is in
pursuance of the demand dated 24.01.2003, PW.1 secured the
proposed bribe amount and was waiting for arrival of AO on
29.01.2003.
39. The contention of AO is that PW.2 had no chance to witness
the events between AO and PW.1 in the light of the things that
were narrated in the post-trap proceedings and in the rough
sketch, there was no mention about the existence of verandah. As
seen from Ex.P-12, the DSP, ACB after recovery of the tainted
amount asked PW.2, the accompanying witness, as to what
happened between AO and PW.1 and he stated that he along with
the complainant went into the house of the complainant and
stayed there. Complaint stayed in the southern room and he
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(PW.2) stayed in the northern room. They waited for the arrival of
AO. AO came on his motorbike, parked his motorbike in front of
the house of the complainant and entered into southern room of
the house i.e., residential room of the complainant where the
complainant and his wife were there. He (PW.2), on noticing the
entry of AO came out of the northern room into the front verandah
and peeped into the room. He noticed and heard the AO enquiring
about the demanded bribe amount of Rs.2,000/- with the
complainant. Complainant answered positively and AO asked him
to pay the bribe. Complainant took out the tainted bribe money
from his left side shirt pocket and handed over to AO and AO took
the same and counted with his both hands and kept it in his right
side pant pocket. When he assured him the needful the
complainant came out while AO was chitchatting with the wife of
the complainant. This is the version of PW.1 in the post trap.
40. During cross-examination, PW.2 stated that in his version in
Ex.P-12 at Page No.7, it is not written that he stated that he was
on the eastern side of the house of PW.1. He went into the room at
about 10:30 a.m. after arrival of AO. Till then he was in the
eastern side of the house of PW.1. He did not enter into the room
but he was outside. In Ex.P-12, it is written that he stated as
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complainant stayed in southern room and he (PW.2) stayed in the
northern room. He denied that there were discrepancies. Having
looked into the contents of Ex.P-12 with regard to the version of
PW.2 during the post trap, the evidence of PW.2 in chief and
cross-examination, this Court is of the considered view that
absolutely, there were no discrepancies. What the Court has to see
is as to whether there was possibility or probability for PW.2 to
witness the events. In Ex.P-11, the rough sketch of the scene of
offence, vantage position by PW.2 was clearly shown and looking
into the same, he has every chance to observe the events between
PW.1 and AO. Hence, the contention of AO that there was no
possibility for PW.2 to witness the events between PW.1 and AO is
not tenable.
41. There is no dispute that the tainted amount was recovered
from the possession of AO. The evidence of PW.2, the mediator,
PW.8 - Trap Laying Officer and even the evidence of PW.1, the de-
facto complainant means that the amount that was kept in the
shirt pocket of PW.1 during the pre-trap and the amount that was
recovered from the possession of AO during the post-trap is one
and the same. The denomination of the currency notes as
mentioned in Ex.P-5 - pre-trap proceedings tallied with the
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description in Ex.P-12 - post-trap proceedings. Therefore, the
prosecution is able to establish that the amount that was dealt
with in the pre-trap proceedings and the amount that was
recovered from AO during the post-trap is one and the same. AO
did not dispute that his both hand fingers yielded positive result
when chemical test was conducted to him. So, the recovery of the
tainted amount from AO absolutely is not in dispute.
42. Now this Court has to see further the defence of the AO
during the course of trial that what all he received from PW.1 is no
other than the amount due by PW.1 towards the margin money
relevant to the loan of the year 1986. .
43. During cross-examination PW.1 deposed that in the year
1986 he had obtained a loan from Corporation with margin money
of Rs.2,000/-. In that loan Rs.2,000/- is the margin money and
Rs.3,000/- is the subsidy. He had to pay the loan amount in 24
equal monthly installments. He did not pay Rs.5,000/- to the
Bank or Rs.2,000/- margin money to the Corporation even till the
date of trap. He denied that on the date of trap, he paid Rs.2,000/-
towards margin money of his loan taken in the year 1986. Witness
volunteers that till today no notices were received by him for
paying margin amount to the Corporation or loan amount to the
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Bank. He denied that from 1986 till the date he received number
of notices in writing and also oral demands to pay the margin
money to the Corporation and that as the Corporation is not
having postage, they sent the notices to him through postcards.
PW.3 during cross-examination denied the defence of the AO in
this regard. It is no doubt true that according to the evidence of
PW.2, the mediator, and PW.8 - the Trap Laying Officer the version
of AO during the post-trap when the DSP, ACB asked him as to
why he received the amount is that he received Rs.2,000/- from
PW.1 for recovery of the margin money. So, the defence of the AO
before the Court below is that he received Rs.2,000/- from PW.1
towards margin money of the year 1986. It is to be noticed that
during the course of evidence of PW.2, Exs.P-4 to P-19 are
marked. After chief-examination of PW.2 only PW.1 was cross-
examined. In that view of the matter, with regard to the contention
of AO that what all he received is only margin money, the attention
of PW.1 was drawn in cross-examination to the contents of
Ex.P.17(A). So, he deposed in cross-examination that as per
Ex.P-17(A), he was due of Rs.2,000/- principal and Rs.2,085/- as
interest and in total Rs.4,085/- by 11/1997. The contention of AO
is that when PW.1 was due of Rs.4,085/-, he received a sum of
Rs.2,000/- principal regarding the margin money.
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44. Now, it is appropriate to look into as to whether there is any
reasonableness in the contention of AO in this regard. PW.5 was
examined by the prosecution regarding the procedural aspects,
who supported the case of the prosecution. During the course of
cross-examination by the learned defence counsel before the Court
below, he deposed the nature of duties of AO as if he had to visit
the beneficiaries because they were disabled and he was duty
bound to recover loan amounts etc. In that view of the matter,
defence counsel elicited from PW.5 in his cross-examination that
for loan recovery, he (PW.5) has to issue permanent receipt.
Whenever AO recovers the loan amount, he (AO) will issue a
temporary hand receipt. After he shows the same, to him, he
(PW.5) would issue permanent receipt, which will be in the book of
receipts and AO will take and handover the permanent receipt to
the beneficiaries. As per Ex.P-17(A) PW.1 was due to them
Rs.4,085/- out of which Rs.2,000/- is the principal and
Rs.2,085/- is the interest. Those are mentioned in Ex.P-17(A).
PW.1 remained defaulter. PW.5 during the course of re-
examination by the learned Special Public Prosecutor deposed that
there is no prescribed procedure that AO has to issue a temporary
receipt and thereafter has to obtain permanent receipt. In that
view of the matter, the Special Public Prosecutor got permission to
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treat the witness as hostile and cross-examined him further. Then,
he deposed that whenever a notice is issued to the beneficiary for
recovery of the loan, it will be entered in the relevant loan register
i.e., Ex.P-17, which will be signed by the District Manager. The
notice has to be prepared by the concerned clerk and AO. As per
Ex.P-17(A) only two notices were sent to PW.1 i.e., on 12.07.1989
and on 08.05.1991 and no notices were sent after 08.05.1991.
45. Irrespective of the genuinity of the version of PW.5 that AO
had to issue a temporary receipt only and he (PW.5) has to issue a
permanent receipt but the contents in Ex.P-17(A) excludes the
defence of AO that several notices were issued to PW.1 calling
upon him to pay the margin money. The defence of the AO is that
as the Corporation had no postage, they used to send the letters
through postcards. It is rather improbable that Handicapped Co-
operative Corporation which was funded by the Government had
no postage to send notices. Further, irrespective of the postage,
entries were supposed to be made in Ex.P-17(A) whenever notices
were issued to the beneficiaries. So the contention of AO that
several notices were issued to PW.1 to pay the margin money of
the year 1986 was not at all probabilized before the Court below.
Even otherwise, according to the evidence of PW.5, AO was duty
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bound to issue a temporary receipt. Obviously, there is no proper
explanation from AO as to why he could not issue any receipt. It is
to be noticed that even according to AO, PW.1 was a defaulter. A
man with reasonable prudence, who visited the house of PW.1 and
PW.3 especially when he recovered earlier dues of the year 1986,
would not keep quiet without issuing even a temporary receipt. It
is not the defence of AO that he carried temporary receipt book to
the house of PW.1 and PW.3 on the date of trap. Even it is not his
case that he carried any white paper and he was about to issue a
white paper receipt at least for receipt of the amount of Rs.2,000/.
The contention of AO is that after receipt of the amount from PW.1
within no time, ACB trapped him. The above said contention
deserves no merit. AO was evidently chitchatting with PW.3 after
receipt of the amount from PW.1 and according to the case of the
prosecution PW.1 was asked to go out. Considering the same,
absolutely, AO would have definitely issued a temporary receipt or
white paper receipt, if really, he got the amount from PW.1
regarding the so called margin money of the year 1986.
46. Another improbability in the case of AO is that he carried
Ex.P-6 file containing Ex.P-1 and enclosures thereof to the house
of PW.1 and PW.3 and received a sum of Rs.2,000/-. The fact that
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Crl.A. No.1491/2007
AO was in the custody of Ex.P-6 that too at the residence of PW.1
and PW.3 means that he collected the amount of Rs.2,000/- only
towards bribe for doing official favour pertaining to Ex.P-6 file.
Exs.P-4 to P-19 were seized at the office of AO. AO had relied upon
Ex.P-17(A) to contend that PW.1 was due of Rs.4,085/-. If really,
he went to the house of PW.1 and PW.3 to recover the said
amount, he would have carried Ex.P-17(A) register to the house of
PW.1 and PW.3 to accept the due amount. Apart from this, when
the total amount was of Rs.4,085/- he would not have accepted
only a part of Rs.2,000/- from PW.1. All these circumstances
falsify the defence of AO to any extent. The so called version of AO
during the post-trap was only an afterthought to escape from the
case.
47. It is the AO who elicited certain answers from the cross-
examination of PW.1 that till date no notices were received by him
for paying margin amount to the Corporation or loan amount to
the Bank. This version of PW.1 had support from the contents of
Ex.P-17(A). Apart from this, it is a fact that when PW.1 applied a
loan under NHFDC, after the loan covered by Ex.P-17(A), it was
not sanctioned and it was rejected. According to the version of
PW.1 as he did not pay the bribe amount to AO that loan was not
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sanctioned to him. The contention of AO is that as he was
responsible for rejection of the said loan for non-payment of the
amount covered by Ex.P-17(A), he was implicated falsely. If that be
the defence, it is for the AO to explain why when the amount was
due under Ex.P-17(A), as on the date of Ex.P-1, how he processed
the file under Ex.P-1 and got sanctioned the amount covered
under Ex.P-3. Apart from this, prosecution examined another
witness i.e., PW.6 to speak that in the year 1992 and 1997 he and
other beneficiaries with regard to the loan taken in the year 1986
gave a representation to the Assistant Director of the Corporation
stating that they cannot pay the margin money and requested
them to convert the margin money as subsidy and they did not
receive any notices from the Corporation on the margin money. So,
the prosecution examined PW.6 to falsify the defence of the AO
that what he received from PW.1 was only due of the margin
money of the year 1986, because the beneficiaries already made a
claim that they were not able to pay it and it may be converted
into a subsidy. Though the prosecution did not explain the further
consequent action taken by the Corporation, but various
circumstances referred by this Court as above, shows that
absolutely the defence of the AO that he received Rs.2,000/- from
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PW.1 towards recovery of the margin money is nothing but a
fabricated version to escape from the case.
48. AO before the Court below relied upon Exs.D-1 to D-6. In
fact, he got marked several documents i.e., Exs.D-1 to D-25
subject to proof and relevancy. Those documents were relating to
correspondence made by the Assistant Director and District
Manager of the Corporation etc. As seen from Exs.D-1 to D-6,
Corporation had no funds towards the subsidy as on the date of
trap. By relying on the above contention of AO that as there were
no funds with the Corporation, as on the date of trap, the question
of demand made by him for bribe would not arise as he was not
capable of processing the request of PW.1. It is very difficult to
accept the said contention. The evidence of PW.4 and PW.5 is that
they handed over the file on 13.12.2002 and file has to be with AO
till the final result. So, the contention of AO that as the
Corporation had no funds the question of demand of bribe by him
does not arise has no legs to stand.
49. In the light of the above, I am of the considered view that the
evidence on record is fully convincing and it is believable. Turning
to the decision relied upon by learned counsel for the appellant in
Mohmoodkhan Mahboobkhan Pathan (5th supra), the Hon'ble
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Apex Court dealing with the Prevention of Corruption Act, 1947
and Section 4(1) held that the presumption would arise only when
the prosecution proves that what was received by the accused was
gratification. If there is reason to doubt that what was received by
the accused was towards lawful charges, he is entitled to the
benefit of doubt.
50. Turning to the case on hand, in the light of the findings
given by this Court that what all the accused received from PW.1
was only relating to bribe the aforesaid decision is of no use to the
AO.
51. In Bal Krishna Sayal (6th supra), the case is such that the
alleged bribe amount recovered from AO was equal to the amount
the complainant would be required to pay legally as such benefit of
doubt was extended. By relying upon the decision of the Hon'ble
Apex Court in Bal Krishna Sayal (6th supra) obvious contention
of AO is that as Ex.P-17(A) reveals the due of Rs.4,085/- by PW.1
the amount which he received from PW.1 i.e., Rs.2,000/- is only
relating to that as such he is entitled to benefit of doubt. As this
Court already pointed out the very defence of AO in this regard is
totally untenable and improbable and it is nothing but a
fabricating defence to escape from the case. Even otherwise, in Bal
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Krishna Sayal (6th supra), when the complainant was due of
Rs.102/- towards the penal rent in respect of the official residence
occupied by him, AO received a sum of Rs.100/- and was able to
probabilize his defence. Under the above said circumstances, the
Hon'ble Apex Court in Bal Krishna Sayal (6th supra) held the
amount which was recovered from the AO was about to equal to
that of the amount due by the complainant. Turning to the present
case on hand, the amount due was Rs.4,085/- and this Court
clearly dealt with the abnormalities and improbabilities in the
evidence of AO. The decision of the Hon'ble Apex Court in Bal
Krishna Sayal (6th supra) is of no use to the AO.
52. Turning to the decision of the Hon'ble Apex Court in Lalita
Kumari (7th supra), the Hon'ble Apex Court dealt with the
mandatory registration of FIRs in cognizable cases and in
conducting preliminary enquiry. The decision of the Hon'ble Apex
Court in Lalita Kumari (7th supra) was delivered on 12.11.2013.
The Hon'ble Apex Court in Lalita Kumari (7th supra) at Para
No.120.6 dealt with the category of cases in which preliminary
enquiry be conducted and shown (d) therein as cases relating to
corruption cases. It is to be noticed that PW.8 categorically
deposed that on 28.01.2003 at 11:45 a.m. PW.1 presented Ex.P-2
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report when he was present at the office of Inspector, ACB,
Kadapa. He instructed PW.1 to come in the morning on next day
along with the intended bribe amount. In the meanwhile, he made
discrete enquiries against PW.1 and AO and his enquiry revealed
that AO is ill-reputed and PW.1 has no ill-motive to implicate AO
in a false case. So, he obtained oral instructions from DG, ACB to
register the case and lay a trap. It is no doubt true that he
deposed in cross-examination that in Ex.P-23 and Ex.P-2 he did
not make any endorsement regarding his discrete enquiries made
against PW.1 and AO. He denied that he did not make any discrete
enquiries. It is to be noticed that conducting of preliminary
enquiry or discrete enquiry is only to see that public servants will
not be subjected to the cases under the PC Act unnecessarily
when the complainant approaches ACB with ill-motive etc., When
this Court already pointed out in the light of the answers elicited
from PW.1 by AO, AO is such a person he would go around the
houses of the physically handicapped and encourage them to
apply for various loans with an assurance to process and also
request them to pay something to him. So, it is a case where
according to the answers of PW.1, AO was such an ill-reputed
person. The incident in question was happened in the year
2002/2003. The directions of the Hon'ble Apex Court in Lalita
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Kumari (7th supra) were delivered on 12.11.2013. In the light of
the answers spoken by PW.8 in his chief and cross-examinations I
am of the considered view that mere non-making of any
endorsement in Exs.P-2 and P-23 about causing discrete his
enquiries against AO and PW.1 is not going to affect the case of
prosecution in any way.
53. In the light of the above, I am of the considered view that
evidence adduced by the prosecution that AO demanded PW.1 to
pay bribe prior to trap and on the date of trap and accordingly
accepted the amount from PW.1 is fully convincing. The act of the
AO in demanding PW.1 to pay the bribe and accepting the same
clearly constitutes and offence under Section 7 of the PC Act.
Further, the act of AO in demanding PW.1 to pay Rs.2,000/- and
accepting the same is nothing but obtaining pecuniary advantage,
a criminal misconduct within the meaning of Section 13(1)(d) R/w.
Section 13(2) of the PC Act.
54. As the prosecution has proved the foundational facts, now
there arises a presumption under Section 20 of the PC Act, which
runs as follows:
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―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.‖
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55. The Hon'ble Apex Court in Neeraj Dutta v. State
(Government of NCT of Delhi)8, presided over by a Constitutional
Bench elaborately dealt with the essential ingredients of Sections
7, 13(1)(d) R/w.13(2) and 20 of the PC Act. This Court already
pointed out that the prosecution categorically proved the above.
The Hon'ble Apex Court in Neeraj Dutta (8th supra) further held
that when the fact in issue is proved by the prosecution, the
prosecution has the benefit of presumption under Section 7 of the
PC Act insofar as the charge under Section 7 of the PC Act is
concerned. So, as the prosecution has proved the foundational
facts, it has the benefit of presumption under Section 20 of the PC
Act and according to it, the AO accepted the bribe amount of
Rs.2,000/- for doing an official favour. AO failed to prove the
contrary. As he miserably failed to prove his defence that what was
received by him from PW.1 was only relating to due of margin
money of the year 1986, there remained nothing in support of him
to rebut the presumption. The case of the prosecution is further
strengthened by virtue of Section 20 of the PC Act.
56. The learned Special Judge for SPE and ACB Cases, Nellore
rightly appreciated the evidence on record and rightly held that the
8 (2022) SCC OnLine SC 1724
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prosecution has established the ingredients of the offences under
Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act. Having
regard to the above, I am of the considered view that there are no
grounds to interfere with the judgment of the learned Special
Judge.
57. In the result, the Criminal Appeal is dismissed as such the
judgment, dated 26.10.2007, in C.C. No.29 of 2004, on the file of
the Court of Special Judge for SPE and ACB Cases, Nellore stands
confirmed. MO.5, tainted currency notes of Rs.2,000/-, is ordered
to be returned to PW.1. MOs.1 to 4 and MOs.6 to 8 are ordered to
be destroyed after appeal time is over, if available before the Court
below.
58. The Registry is directed to take steps immediately under
Section 388 Cr.P.C to certify the judgment of this Court to the
learned Special Judge for SPE and ACB Cases, Nellore and on
such certification, the learned Special Judge shall take necessary
steps to carry out the sentence imposed against the
appellant/Accused Officer in Calendar Case No.29 of 2004, dated
26.10.2007, and to report compliance to this Court. Registry is
directed to dispatch a copy of this judgment along with the lower
Court record, if any, to the learned Special Judge for SPE and ACB
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Cases, Nellore on or before 15.05.2023 in the name of the
Presiding Officer concerned. A copy of this judgment be placed
before the Registrar (Judicial), forthwith, for giving necessary
instructions to the concerned Officers in the Registry. A copy of
this judgment shall also be forwarded to the Head of the
Department of AO for information and further action, if any.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 01.05.2023
DSH
