Andhra Pradesh High Court - Amravati
C.N.Seshachalapathi Raju vs State Of Ap.,Rep.Byits Special ... on 2 May, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.883 OF 2011
JUDGMENT:-
This Criminal Appeal is filed by the appellant, who was the
Accused Officer ("A.O." for short) in C.C.No.4 of 2007, on the
file of Special Judge for SPE & ACB Cases, Nellore ("Special
Judge" for short), challenging the judgment, dated 21.07.2011,
whereunder the learned Special Judge, found the A.O. guilty of
the charges under Sections 7 and 13(2) r/w 13(1)(d) of
Prevention of Corruption Act, 1988 ("P.C. Act" for short) and
convicted him under Section 248(2) of the Code of Criminal
Procedure ("Cr.P.C." for short). After questioning the A.O. about
the quantum of sentence, the learned Special Judge, sentenced
him to suffer rigorous imprisonment for three years and to pay a
fine of Rs.5,000/-, in default to suffer simple imprisonment for
three months for the offence under Section 7 of P.C. Act and
further sentenced him to suffer rigorous imprisonment for three
years and to pay a fine of Rs.5,000/-, in default to suffer simple
imprisonment for three months for the offence under Section
13(2) r/w 13(1)(d) of P.C. Act and further directed that both the
sentences, as above, shall run concurrently.
2
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,
A.C.B., Tirupati Range, Tirupati, filed a charge sheet under
Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act pertaining to
Crime No.04/RCT-TCT/2006 of Tirupati Range, Tirupati, alleging
in substance as follows:
(i) The Accused Officer, Sri C.N. Sesha Chalapathi Raju,
worked as Health Supervisor in SVRR GG Hospital, Tirupati,
Chittoor District from 29.04.2002 to 05.04.2006, as such, he is
a public servant within the meaning of Section 2(c) of P.C. Act.
(ii) L.W.1-Gudisinti Markondaiah, S/o G. Dora Swamy, is
resident of Door No.1087/A, NGO's Colony, Tirupati, Chittoor
District. He is doing contract Sweeper work at SVRR GG
Hospital, Tirupati. He along with 52 other workers of the same
hospital formed themselves as a Society in the name of
"Annamayya Welfare Society" and they are working as Sanitary
Workers in the said hospital on contract basis from 01.12.2003.
The management of the hospital used to pay monthly bill of
Rs.1,09,376/- to them. The monthly bills will have to be certified
by Health Supervisor of the hospital i.e., A.O. The contract was
expired on 09.02.2006 in the name of Annamayya Welfare
3
Society (09.02.2006 must have been a typographical error
because the case of the prosecution is that it was expired on
09.03.2006). Therefore, for a total period of 9 days in March,
the bill amount of Rs.31,753-89 ps. has to be paid by the
hospital management to them. In order to certify the bills for
the period of 9 days in March, 2006, A.O. demanded Rs.3,000/-
as bribe. On 03.04.2006 L.W.1 met the A.O. and pleaded that
all the workers are very poor and it is their heard earned money
and expressed their inability to pay such huge amount of
Rs.3,000/- as bribe. Then, A.O. finally reduced the bribe amount
to Rs.2,000/- and informed to L.W.1 that he is about to leave
the SVRR GG Hospital, Tirupati, on promotion and that the
money has to be brought within two days in order to certify the
bills. As there was no other go, L.W.1 agreed to pay Rs.2,000/-
as bribe. L.W.1, who was not willing to pay the bribe to the
A.O., approached the D.S.P., A.C.B., Tirupati and gave a report.
The D.S.P., A.C.B. (L.W.11) registered the report as a case in
Crime No.04/RCT-TCT/2006 after due verification on 05.04.2006
at 2-00 p.m. and investigated into.
(iii) L.W.11, the D.S.P., A.C.B., conducted pre-trap
proceedings in his office room on 05.04.2006 from 3-00 p.m. to
5-00 p.m. in the presence of two mediators, L.W.2-P. Chandra
Sekharam, D.C.T.O., Tirupati and L.W.3-Y.J. Padmanabha
4
Prasad Reddy, Junior Assistant, O/o C.T.O.-II, Tirupati. The
other Inspectors, staff and L.W.1 and also present during that
time. The required formalities regarding pre-trap proceedings
were complied with.
(iv) On 05.04.2006 at 5-00 p.m., the D.S.P., A.C.B.,
Tirupati, along with staff and two mediators and L.W.1 left
A.C.B. Office, Tirupati and reached near Geethanjali Public
School, Tirupati at 5-20 p.m. L.W.1 went to the house of A.O.
and found A.O. sitting on a cot at his house. On seeing him,
A.O. asked whether he brought the bribe amount. P.W.1 replied
positively and handed over the tainted currency notes of
Rs.2,000/- to A.O. The A.O. received the same with his right
hand, counted with both hands and kept the same with him.
Then, L.W.1 came out and gave the pre-arranged signal. The
D.S.P., A.C.B., received signal at 5-30 p.m., rushed into the
house of A.O. along with trap party and found A.O. sitting on the
cot. The D.S.P., A.C.B., got prepared sodium carbonate solution
in two glass tumblers and subjected both hand fingers of A.O. to
the chemical test which yielded positive result. The A.O.
voluntarily took out a wad of currency notes from a cupboard in
his bedroom, where he hidden underneath clothes. One of the
mediators received the amount from A.O., counted the same
and compared with numerical numbers of the notes with that of
5
the numbers already recorded in pre-trap and they were found
tallied. The D.S.P., seized the said amount of Rs.2,000/-. He
arrested A.O. after explaining the grounds of arrest. The above
proceedings were reduced into writing in the form of mediator
report No.2. The D.S.P. seized the sanitation work satisfactory
certificate, advance stamped receipt, muster record and
dispatch register produced by A.O. in the SVRR GG hospital,
Tirupati. A.O. was produced before the Special Judge for judicial
custody. Later, he was released on bail. During the course of
investigation, trap laying officer examined L.W.1, L.W.4-N.M.
Abdul Salam, L.W.5-T. Tharachand Naidu, L.W.6-Mariyanna,
L.W.7-Seetipalli Peramma, L.W.8-Daram Chandra Babu and
L.W.9-Kakularam Kumar Reddy and recorded their statements
under Section 161 of Cr.P.C. Further the trap laying officer got
recorded the statement of L.W.1 under Section 164 of Cr.P.C.
before III Additional Judicial Magistrate of First Class, Tirupati.
The investigation reveals that A.O. demanded and accepted the
illegal gratification of Rs.2,000/- from L.W.1 for doing official
favour for process the bills of the Society of L.W.1 and to submit
the same to SVRR GG Hospital, Tirupati.
(v) The Government of Andhra Pradesh accorded sanction
to prosecute A.O. vide G.O.Ms.No.11, dated 08.01.2007.
Hence, the charge sheet.
6
4) The learned Special Judge took cognizance of the
case under the above provisions of law and issued summons to
A.O. On appearance of A.O., copies of case documents were
furnished to him as contemplated under Section 207 of Cr.P.C.
A.O. was examined under Section 239 of Cr.P.C. with reference
to the allegations in the prosecution case, for which he denied
the allegations. Then, the learned Special Judge framed charge
under Section 7 of P.C. Act, 1988 and further charge under
Section 13 (2) r/w 13(1)(d) of P.C. Act, 1988, against A.O. and
explained to him in Telugu for which he denied the charges and
pleaded not guilty and claimed to be tried.
5) In order to establish the guilt against A.O., the
prosecution before the Court below, examined P.W.1 to P.W.10
and got marked Ex.P.1 to Ex.P.20 and M.O.1 to M.O.6. After
closure of the evidence of 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. A.O. chosen to examine the defence witnesses
i.e., D.W.1-M.Nagendra Babu and D.W.2-P.N. Karunakaran and
got marked Ex.D.1 to Ex.D.3 and Ex.C.1. Further as part of
Section 313 of Cr.P.C. examination, he also filed a written
statement.
7
6) The learned Special Judge on hearing both sides and
on considering the oral as well as documentary evidence, found
A.O guilty of the charges under Sections 7 and 13(2) r/w
13(1)(d) of P.C. Act and accordingly convicted and sentenced
him as above. Challenging the same, the unsuccessful A.O. filed
the present Criminal Appeal.
7) Here, in deciding this Criminal Appeal, the points for
determination are as follows:
(1) Whether the prosecution before the Court below
proved that A.O. was a public servant within the meaning
of Section 2(c) of P.C. Act and as to whether the
prosecution obtained a valid sanction under Section 19 of
the P.C. Act to prosecute A.O. for the offences alleged
under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act?
(2) Whether the prosecution before the Court below
proved the pendency of the official favour of P.W.1 with
A.O. prior to the date of trap and on the date of trap?
(3) Whether the prosecution before the Court below
proved that A.O. demanded P.W.1 to pay bribe of
Rs.3,000/-, later, reduced it to Rs.2,000/- and accepted
the same from P.W.1 for doing official favour in the
manner as alleged?
(4) Whether the prosecution proved the charges under
Sections 7 and 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 1988 against the A.O. beyond reasonable
doubt?
8
Point No.1:-
8) The prosecution before the Court below examined
P.W.7 to prove the sanction against A.O., P.W.7 deposed that he
is working as Section Officer in Health, Medical & Family Welfare
Department, A.P. Secretariat, Hyderabad. He is authorized to
depose in this case as per G.O.Rt.No.58, dated 01.03.2011. It
is Ex.P.17. D.G., ACB, Hyderabad sent a preliminary report
along with copies of FIR, Mediators Reports 1 and 2 and final
report along with statements of witnesses under Section 161 of
Cr.P.C. Upon the advice of the Vigilance Commissioner, it was
put in circulation through Assistant Secretary, Deputy Secretary
and Principal Secretary to the Minister. Law Department
scrutinized the sanction orders. Sri P.K. Agarwal went on
through the entire material and upon application of mind, issued
sanction orders to prosecute A.O. under Ex.P.18. Ex.P.18
contains the signature of Sri P.K. Agarwal and he (P.W.7) can
identify the same. During the course of cross examination, he
deposed that in Ex.P.18, there is no specific reference as to the
nature of documents verified by Sri P.K. Agarwal. The file
brought by him to the Court contains a draft sanction order
along with final report by DG, ACB. He denied that he is
9
incompetent to depose in respect of Ex.P.18 and that it has been
issued without application of mind.
9) The learned counsel for the appellant in the grounds
of appeal pleaded that the Court below failed to see that the
sanction accorded by the competent authority is bereft of
reasons, as such, it is not legal. In the light of the above, I
would like to look into the same. Ex.P.18 discloses that the
sanctioning authority looked into the allegations against A.O.
right from the alleged demand made by A.O., contents of the
report and further pre-trap and post-trap proceedings. Further
it reads literally that on application of mind only, Ex.P.18
sanction was issued. The evidence of P.W.7 that he can identify
the signature of signatory under Ex.P.18 was not at all
challenged during the course of cross examination.
10) Having regard to the above, this Court is of the
considered view that the evidence of P.W.7 that necessary
material was sent to the sanctioning authority i.e., the FIR,
Mediators Reports 1 and 2 and final report along with the
statements of witnesses under Section 161 of Cr.P.C. is liable to
be believed. Therefore, this Court is of the considered view that
the evidence on record is sufficient to say that the prosecution
obtained a valid sanction under Ex.P.18 to prosecute A.O. under
Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act. There is no
10
dispute that A.O. was drawing salary from the account of
Government. Hence, I hold that the prosecution before the
Court below categorically proved that A.O. is a public servant
within the meaning of Section 2(c) of the P.C. Act and the
prosecution obtained a valid sanction under Section 19 of the
P.C. Act against A.O. for his prosecution before the Special
Judge under Sections 7 and 13(2) r/w 13(1)(d) of P.C. Act.
Point Nos.2 to 4:
11) Sri R. Arun Kumar, learned counsel, representing
the learned counsel for the appellant, would contend that the
case of the prosecution is that in respect of 9 days salary of
Annamayya Society group of people, they submitted bills under
Ex.P.4 and A.O. as Health Supervisor, who had to certify the
bonafidies and entitlement and that to do the same, A.O.
demanded P.W.1 to pay bribe of Rs.3,000/-, later, reduced it to
Rs.2,000/- and accepted the same on the date of post-trap. He
would contend that even it is borne out from the evidence that
A.O. had already signed the bills and given a satisfactory report
and the bills were only pending before him for verification of the
attendance register maintained by P.W.1 which is a procedure to
be followed. The evidence on record would disclose that there
was no official favour pending in respect of the work of P.W.1
before A.O. It is not the case of the prosecution that in previous
11
occasions when the bills of the said workers were submitted
before A.O., he demanded any bribe amount. A.O. was going on
promotion during the period of trap and it is quiet improbable
that at the risk of his career, he would demand the brie of
Rs.2,000/-. Ex.P.4 reveals that already there was signature of
A.O. A.O. was waiting only for verification of the attendance
register maintained by P.W.1. P.W.1 disowned his responsibility
by saying that attendance register was not being maintained by
him. But, the evidence of P.W.4 and P.W.5 discloses that
attendance register used to be in the custody of P.W.1 alone.
So, P.W.1 twisted the facts for the reasons best known to him.
The prosecution failed to prove the pendency of the official
favour. The learned Special Judge did not appreciate the
evidence on record in proper perspective and erroneously held
that official favour of P.W.1 was pending with A.O. When A.O.
already signed the bill with necessary certification and was only
waiting for the attendance register to be produced by P.W.1,
there was no question of making any demand for bribe. The
Court may look into the previous conduct of A.O. in clearing the
bills without there being any demand for bribe. The evidence on
record did not prove the pendency of the official favour. He
would further contend that to prove the charges under Sections
7 and 13(2) r/w 13(1)(d) of the P.C. Act, proof of demand is a
12
sin qua non and the evidence on record goes to prove that there
was no question of A.O. demanding P.W.1 for doing official
favour. In fact, at the instance of P.W.1, A.O. extended some
loan amount to one Narasimhulu, who was the member of
Annamayya Welfare Society and Narasimhulu did not pay back
the amount lent by the A.O. So, A.O. complained the same to
P.W.8, who played a key role in forming Annamayya Welfare
Society. Therefore, as A.O. complained against P.W.1 before
P.W.8, P.W.1 hatched up a plan to rope A.O. under some false
allegations. The amount received by A.O. was only towards the
amount lent by him to Narasimhulu and it is not at all bribe
amount. P.W.1 admitted in cross examination that whenever
there was delay in payment of wages, some of the workers used
to request A.O. for hand loans. So, the defence of A.O. is
probable in the circumstances of the case. P.W.1 failed to
produce the attendance register along with Ex.P.4 and A.O.
beforehand just signed it and was waiting for arrival of
attendance register. In fact, the bill was submitted before A.O.
on 05.04.2006 alone. According to P.W.4, Annamayya Welfare
Society usually monitors the attendance of the sanitary workers
and attendance register used to be in their custody and they
have to produce it before the Health Supervisor to prepare
necessary wage bills and A.O. should have necessarily verified
13
it. When this is the situation, without producing any attendance
sheets, P.W.1 cannot ask A.O. to give the bill to P.W.1 for
submission before the concerned. Even P.W.8 admitted that the
contract employees used to obtain loans from the permanent
employees including A.O. since they used to receive the wages
irregularly. A.O. examined D.W.1 and D.W.2 in support of his
defence and got marked Ex.D.1 to Ex.D.3. The Court below
without proper reasons went on to convict A.O.
12) The learned counsel for the appellant in support of
the contentions would rely upon the decisions in (1) N.
Vijayakumar vs. State of Tamil Nadu1 (2) R. Jagadeswara
Reddy vs. State of A.P.2 (3) Akuathi Yellamanda vs. State
ACB3 and (4) Neeraj Dutta v. State (Government of NCT of
Delhi)4 . He would contend that the prosecution failed to prove
the charges under Sections 7 and 13(2) r/w 13(1)(d) of the P.C.
Act, as such, A.O. is liable to be acquitted by allowing the
appeal.
13) Sri S.M. Subhani, learned Standing Counsel for ACB
and Special Public Prosecutor, appearing for the respondent/
State, would contend that the prosecution examined P.W.1, the
AIR 2021 SC 766
2022 (2) ALT (Crl.) 39 (A.P)
(2021) 2 ALT (Crl.) 1
4 (2022) SCC OnLine SC 1724
complainant, P.W.3, P.W.4, P.W.5 and P.W.6 to prove the
pendency of the official favour. Even prosecution examined
P.W.8 to controvert the defence set forth by A.O. during post-
trap that he accepted the amount which was indebted from
somebody. In Ex.P.4 A.O. signed already and put his stamp
also, but, he did not return the same for further action. These
documents were seized on the date of trap from the office of
A.O. A.O. had no business to sign Ex.P.4 with stamp and he had
no right to expect production of attendance sheets when he
already signed it. So, having got knowledge about the contents
in attendance register only, he could sign the said documents.
Though P.W.1 deposed that the attendance register was not
with him, but, other witnesses spoken that P.W.1 used to
maintain the attendance register. Hence, after the signature of
A.O. on Ex.P.4, it was not supposed to be in his custody for
further action. All these go to show that for ill-motive only, he
was keeping Ex.P.4 with him without taking further action. The
prosecution established the pendency of the official favour
categorically. Both hand fingers of A.O. yielded positive result
when chemical tests were conducted to both hand fingers. A.O.
produced the tainted amount from a cupboard in his bedroom
where he hidden underneath clothes. There is no dispute before
the Court below that the tainted amount was recovered from the
possession of A.O. A.O. failed to probabalize his defence that he
accepted the amount as due to him on account of hand loan
given by him to some other. Though A.O. afterthought set forth
such defence during post-trap, but, he failed to probabalize his
defence theory and the defence theory cannot stands to any
reason. The Court below with cogent reasons disbelieved the
defence theory. The benefit of presumption under Section 20 of
the P.C. Act is available to the case of the prosecution. Though
there is no dispute about the principles laid down in the
decisions cited that demand is the sin qua non to prove the
charges under Sections 7 and 13(2) r/w 13(1)(d) of the P.C.
Act, but, the evidence on record proves the essential ingredients
of the said Sections. The Court below with sound reasons found
A.O. guilty and convicted and sentenced him, as such, the
appeal is liable to be dismissed.
14) In the light of the above, firstly I would like to deal
with as to whether the prosecution before the Court below
proved the pendency of the official favour.
15) P.W.1 was no other than the defacto-complainant.
In this regard his evidence in substance is that he was doing
contract Sweeper work at Sri Venkateswara Ramanarayana
Ruya Hospital, Tirupati. Along with him 52 persons were also
working there. They constitute themselves as a Society under
the name and style of Annamayya Welfare Society. The period
of work was commenced from 01.12.2003. It was concluded by
09.03.2006. A sum of Rs.1,09,376/- paid to them towards their
wages every month. In the month of March, they are entitled
for 9 days salary which amounts to Rs.31,753.89 ps. The
procedure for passing of their bills was that concerned Health
Supervisor would certify that they attended to the work
regularly and satisfactorily and then only concerned authorities
would pass the bill. A.O. was the Health Supervisor by then.
A.O. had to certify the bill for 9 days during March, 2006. On
behalf of the Society, he approached A.O. for necessary
certificate, as he was the President of the Society. A.O.
demanded Rs.3,000/- as bribe for endorsing necessary
certificate on bill with his seal. He told them that unless he paid
the amount, A.O. would not certify. He told their members about
the demand made by A.O. But, they requested him to contact
A.O. again and request for certification since they were entitled
to the salary. He went to A.O. on 03.04.2006 and told him that
they are all contract labourers, who are unable to pay the
amount as demanded. A.O. reduced the bribe of Rs.2,000/- and
told that unless the amount is paid, bill would not be passed.
He also told him that he would leave the office on promotion and
as such he asked him to get the bribe of Rs.2,000/- within two
days. Under compelling circumstances, he accepted to pay the
demanded bribe amount of Rs.2,000/-. Later, he went to the
office of DSP, ACB on 04.04.2006 and informed him about the
demand made by A.O. and his unwillingness to pay. The DSP,
ACB asked him to give a report. He drafted Ex.P.1 report. The
DSP, ACB asked him to come on 05.04.2006 at 3-00 p.m. along
with Rs.2,000/-. P.W.1 deposed about his involvement in the
pre-trap proceedings. His evidence in respect of post-trap
proceedings is that during post-trap at 5-00 p.m., on
05.04.2006 they went to the house of A.O. The DSP, ACB asked
him to go to the house of A.O. and in the pre-trap, he directed
him to pay the bribe amount only on further demand. He went
into the house of A.O., who was found sitting on the cot. He
asked A.O. to certify the bill. A.O. asked him whether he
brought the money. He replied positively and handed over the
amount to A.O. A.O. received it with his right hand and counted
them with both hands. A.O. asked him to come to the office on
the next day and he would endorse the necessary certificates on
the bill. Then he came out and relayed pre-arranged signal at 5-
30 p.m. This is the substance of the evidence of P.W.1 with
regard to the pendency of the official favour. The prosecution
during his chief examination also got marked Ex.P.2 and Ex.P.3
the entries relating to dispatch register and Ex.P.4 the workers
pay bill which discloses the attendance register of the members
and their entitlement. As far as Ex.P.2 and Ex.P.3 are
concerned, they have nothing to do with Ex.P.4.
16) The prosecution examined P.W.3, the Junior
Assistant in S.V.R.R. G.G. Hospital, Tirupati, regarding
procedural aspects. The evidence of P.W.3 is that the sanitary
work contract was given to Annamayya Welfare Society,
Tirupati. The contractor would submit the bills to the Health
Supervisor, who has to certify the same. A.O. was the Health
Supervisor by then. He further deposed that he did not receive
the bills relating to March, 2006 for a period of 9 days for the
value of Rs.31,754/-. Ex.P.14 is the proceedings relating to the
contract. He handed over Ex.P.14 and Ex.P.15 to the ACB. ACB
shown to him a bunch of attendance sheets relating to 9 days
work in March, 2006 which is Ex.P.4. They also shown him
Ex.P.10 satisfactory certificate and Ex.P.11 advanced stamped
receipt of P.W.1. According to this witness in cross examination
by the defence counsel, attendance sheets have to be produced
along with the bills to show that a particular number of workers
had attended the work. They will be maintained by the
contractor. Annamayya Society maintained such record. It was
the responsibility of A.O. to verify the daily attendance sheets
and he has to sign on the sheet every day. He denied that these
records could be handed over to the contractor for obtaining
counter-signature.
17) According to the evidence of P.W.4, sanitary workers
were being outsourced in their hospital and Health Supervisor
used to monitor the performance of the duties of sanitary
workers and it was the responsibility of the Health Supervisor to
take care of attendance of its workers. He has to certify relating
to work satisfaction and to submit the muster rolls for a counter-
signature of C.S. R.M.O. A.O. was following the same procedure.
He knows about the ACB case against A.O. As per the record,
A.O. did not forward the work satisfaction certificate and muster
rolls to him for counter-signatures. The DSP, ACB examined
him.
18) The prosecution examined P.W.5, who deposed that
he knows the A.O. Whenever A.O. was on leave, he was being
posted as in-charge. But, he was not issuing any certificates as
in-charge. He was supervising the roll call.
19) According to P.W.6, he was a worker in Annamayya
Welfare Society. P.W.1 was its President and he was its
Secretary. There were 53 workers. He and P.W.1 used to
subscribe their signatures on the bills. Ex.P.4 and Ex.P.11 bear
his signatures which are relating to salary of March, 2006.
20) Prosecution examined P.W.8, who deposed that he is
a Secretary of C.I.T.U. an affiliated body of C.P.M. Annamayya
Workers Welfare Society is affiliated to C.I.T.U. In case of
disputes between the workers and management, they usually
negotiate with the concerned. He knows A.O. and the duty of
A.O. is to take attendance of the workers and to prepare pay
bills and forward to the superiors. He never asked P.W.1 to get
Rs.2,000/- for him. He did not ask P.W.1 to pay Rs.2,000/- to
A.O. for being paid to him (P.W.8). He knows P.W.1 since they
belonged to same organization. There is no possibility of any
mediator to collect such amounts. During the course of cross
examination, he deposed that he knows Narasimhulu, a worker
in Annamayya Society, who left the Society. At one instance
A.O. paid amounts to one of the workers of Annamayya Society
at request of P.W.1 which was not repaid and when it was
brought to his notice, he directed P.W.1 to repay the same to
A.O. which P.W.1 agreed to pay. This is incident took place
about 15 days prior to ACB trap laid against A.O. He does not
remember whether the worker, who received amounts from A.O.
was Narasimhul. P.W.1 did not telephone him at any time that
he was repaying the amount to A.O.
21) The evidence of P.W.2 and P.W.9 as regards the
post-trap proceedings relating to seizure of documents is that
after concluded the post-trap proceedings at the residence of
A.O., they went to the office of A.O. and A.O. opened his office
and produced the documents and the DSP, ACB seized the
dispatch register and it is Ex.P.9. He also seized sanitation
workers satisfactory certificate and stamp receipt, they are
Ex.P.10 and Ex.P.11 respectively. He also seized three sheets of
muster rolls which are Ex.P.4. They signed on Ex.P.9 to Ex.P.11
and Ex.P.4 along with DSP, ACB.
22) As seen from Ex.P.1 report lodged by the defacto-
complainant i.e., P.W.1 on 04.04.2006, the substance of the
allegation is that he and 52 others formed themselves as
Annamayya Welfare Society, got registered it and they are
working in SVRRG Hospital, Tirupati for sanitary contract work
since 01.12.2003. The monthly amount was Rs.1,09,376/-.
Every month they have to submit the bill to the Health
Supervisor, C.N.S. Raju, for necessary certification. Their
contract period was over by 09.03.2006. So, pertaining the
salary bill of March, 2006 for 9 days when they claimed the
amount, A.O. demanded bribe of Rs.3,000/-. Being the
President of the Society, on 03.04.2006 he met A.O. and
informed him that all the contract workers are hard workers and
they are not able to pay such amount and then A.O. reduced the
bribe of Rs.2,000/- and stated that unless that amount is paid,
bill cannot be processed and he is going on promotion, directed
them to pay the bribe amount within two days. Therefore, P.W.1
presented the report at 11-00 a.m. on 04.04.2006. The
endorsement on Ex.P.1 reads that the ACB, DSP after
conducting necessary enquiries with regard to the reputation of
A.O. opined that A.O. is not carrying good reputation in the eyes
of general public and complainant has no ill-motive to take
revenge against A.O., as such, he registered the same as F.I.R.
on the next day i.e., on 05.04.2006 at 2-00 pm. As seen from
the evidence of P.W.1, he deposed in accordance with the
contents in Ex.P.1. Literally, the contents of Ex.P.1 corroborate
the evidence of P.W.1.
23) The facts which are not in dispute are that A.O. was
working as a public servant and he was working as Health
Supervisor in SVRRG Hospital and that P.W.1 and 52 others
formed themselves as Annamayya Welfare Society, got
registered it and they were working in SVRRG Hospital as
sanitary workers. There is no further dispute that initially their
contract was commenced from 01.12.2003 for a period of two
months under the cover of Ex.P.14 and later it was being
extended and by virtue of the order under Ex.P.15, their
services were terminated by 09.03.2006 and from 10.03.2006
one Tirumalesu Agency was awarded with the said work. These
facts are not at all in dispute. Further as evident from the
evidence of P.W.3 and P.W.4, the duties of A.O. were such that
he has to scrutinize the bill submitted by the sanitary workers
with reference to the entries in the attendance register. He has
to give a satisfactory certificate and after making necessary
verification and certification, he has to forward the bill to P.W.4.
These facts are not at all in dispute. So, the case of the
prosecution is that P.W.1 and its Secretary submitted the bill
under Ex.P.4 to A.O., who had to certify and to do official
favour, demanded bribe from P.W.1.
24) Turning to the cross examination of P.W.1, he
deposed that whenever their salaries are prepared, they used to
prepare the documents as like Ex.P.4 basing on the attendance
information with them and take it to A.O. for certification for
passing bill. Attendance register is maintained by A.O. He denied
that after noting the presence, A.O. used to return the
attendance register to them and he (P.W.1) was the custodian
of the record. Ex.P.1 was prepared by him as per the entries in
the attendance register. Ex.P.4 bears the names of all the 53
members of their society and not outsiders. Attendance register
will not contain the names of the absentee members and it will
not mention the persons of their members, who are absent and
on a particular day against their names, but there will be an
absent mark. Ex.P.4 discloses that all the 53 members of their
society regularly attended the work for 9 days in discharging the
duties. He denied that 53 members of their society did not
attend to their work as reflected in Ex.P.4 and some of them are
recorded absent in the attendance register. The bill used to be
drawn in the name of their society members and the absentee of
the society member has to pay proportionate wages to the
worker, who had substituted in his place. He denied that along
with Ex.P.4, they were required to produce the attendance
register also before A.O. for certification whenever the bills have
to be drawn. He volunteers that the attendance register would
be with A.O. himself. He denied that A.O. has to certify the bill
after looking into the attendance register. After they were asked
to stop the work, the work was entrusted to Sri Tirumalesu
Security and Sanitation under a contract. He submitted Ex.P.4
with A.O. during March end of 2006. He denied that he
presented Ex.P.4 before A.O. on 05.04.2006. He deposed that
after certifying the bills as per Ex.P.4, A.O. used to return the
bills to him and he used to present it before the concerned being
passed. He denied that he presented Ex.P.4 to A.O. on
05.04.2006 and A.O. certified the same and asked him to
produce the attendance register, so that, he can handover the
bill to him. He used to put the dates in the bills prepared as in
Ex.P.4. Ex.P.4 bears the signature of him and one Peramma, the
Secretary. Ex.P.4 also bears the signature of A.O. with the
same. He denied that A.O. told him that unless he bring the
attendance register, he would not put the date under the
signature and that he promised him to produce the attendance
register, but, he did not produce. He denied that there is no
question of A.O. demanding him to pay the bribe for certification
of the bill for 9 days since A.O. already signed and certified
Ex.P.4. He denied that he is deposing false.
25) Coming to the evidence of P.W.3 during the cross
examination, he deposed that the attendance sheets have to be
produced along with the bills to show that a particular member
of the workers attended the work. They will be maintained by
the Contractor. Annamayya Society maintained such record. It
was the responsibility of the A.O. to verify the bill, attendance
sheets and he had to sign on the sheet every day. The
attendance sheets (muster rolls) satisfactory certificate and
advance receipt have to be placed before the Health Supervisor,
who in turn certifies to Civil Surgeon-R.M.O. The same has to be
sent through usual office procedure by local tapal to Civil
Surgeon-R.M.O. for counter-signature and later to him. He
denied that such procedure is not there. He denied that records
could be handed over to the Contractor for obtaining counter-
signature from Civil Surgeon-R.M.O. and that he is deposing
false.
26) Coming to the evidence of P.W.4 in cross
examination, he deposed that the attendance register of the
workers will be in the custody of the contracting agency. The
contracting agency has to produce the attendance register to
prepare the necessary wage bill. While forwarding the muster
rolls, A.O. should have necessarily verified the attendance
register. A.O. was forwarding after due verification of the
attendance register with muster rolls and the work satisfaction
certificate to him. If attendance register is not produced, Health
Supervisor cannot forward the muster roll to Civil Surgeon-
R.M.O. He denied that it was not the responsibility of A.O. to
take care of attendance of the sanitary workers. During re-
examination, he deposed that Ex.P.4 is the muster roll and A.O.
had signed in it as a Health Supervisor after due verification of
attendance register maintained by the contracting agency. He is
identifying the signature of A.O. on Ex.P.4 and it is Ex.P.16.
Ex.P.10 is the work satisfaction certificate that bears the
signature of A.O. as Health Supervisor issued for the month of
March, 2006. It is also supported by advanced stamped receipt
under Ex.P.11.
27) By virtue of the above, though P.W.1 denied that he
was maintaining the attendance register, but the evidence of
P.W.3 and P.W.4 goes to prove that the attendance register is to
be maintained by the contracting agency. It is to be noticed that
the defence before P.W.1 is that as P.W.1 did not produce the
attendance register along with Ex.P.4, A.O. insisted P.W.1 to
produce the same. It is the further defence that A.O. used to
return the bill like Ex.P.4 to P.W.1 after due verification and
certification with reference to the entries in the attendance
register and P.W.1 has to submit the bill to the proper
authorities. This procedure suggested during cross examination
of P.W.3 was not admitted by him. In fact, P.W.4 was the proper
person to ascertain as to whether P.W.1 was in the habit of
receiving the bill like Ex.P.4 after certification by A.O. through
proper process i.e., through dispatch register or he was
receiving the same from P.W.1. So, what all the defence of A.O.
as if he used to return the bill like Ex.P.4 to P.W.1 after
necessary certification is nothing but contra to the procedure. It
is quiet improbable to assume that when a person like P.W.1 laid
a claim for salary, the bill will be returned to P.W.1 after
necessary verification to be presented before proper authorities.
On the other hand, A.O. being the Health Supervisor had to see
that the bill would reach the proper designated officer like P.W.4
after necessary verification. So, the fact remained is that though
P.W.1 stated that the attendance register used to be in the
custody of A.O., but, the evidence of P.W.3 and P.W.4 is very
clear that the contracting agency used to maintain the
attendance register.
28) It is to be noticed that the evidence of P.W.4 is very
specific that Ex.P.4 is the muster roll and A.O. signed it as a
Health Supervisor after due verification of attendance register
maintained by the contracting agency. Therefore, he identified
the signature of A.O. on Ex.P.4 and signature is Ex.P.16. Apart
from this, there is Ex.P.10 work satisfactory certificate and
advanced stamped receipt under Ex.P.11. The above portion of
the facts that were elicited by the learned Special Public
Prosecutor during re-examination of P.W.1 was not further
impeached during further cross examination by the learned
defence counsel before the Court below. On the other hand,
what P.W.4 deposed is that during further cross examination he
did not state in respect of Ex.P.4, Ex.P.10 and Ex.P.11
specifically before D.S.P., ACB, Tirupati. The signature of the
President and Secretary of Annamayya Society are there on
Ex.P.4. Ex.P.4 bears the signature of A.O. with date as
05.04.2006. Insofar as the evidence of P.W.4 that Ex.P.4 bears
the signature of A.O. with date as 05.04.2006 was found fault
by the Court below by giving finding that P.W.4 deposed
mistakenly about the date as 05.04.2006. Admittedly, the date
as 05.04.2006 was not there. On the other hand, the ACB trap
party put their signatures as 05.04.2006 on Ex.P.4. So,
whatever the reason may be the possibility of P.W.4 deposing by
looking into Ex.P.4 the date 05.04.2006 as put by A.O. cannot
be ruled out. It is not going to affect the case of the prosecution
in any way.
29) Now, it is appropriate to look into exactly as to what
is there in Ex.P.4. Ex.P.4 is styled as Annamayya Welfare
Society contract workers bill. As many as 53 names were there
in seriatim opposed to the dates 1, 2, 3, 4, 5, 6, 7, 8, 9 of
March, 2006. Against each name the letter "P" is there which
indicates the presence of the sanitary workers. So, it can be
construed as a muster also. According to P.W.4, it is also a
muster roll. It is to be noticed that Ex.P.4 bears the signature of
G. Markondaiah (P.W.1) being the President of the Society and
Settipalli Peramma (P.W.6) as Secretary of the Society under
the stamp. Similarly, it contains the signatures of A.O. with
stamp on three sheets. Apart from this, on each sheet there is
calculation that each sanitary worker attended 9 days duty.
Therefore, P.W.1 and P.W.6 claimed that all the 53 sanitary
workers attended for duties from 01.03.2006 to 09.03.2006, as
such, they submitted the bill. The signature of A.O. on Ex.P.4
with stamp indicates that after due verification only, he could
put his signature. Though he did not put the date, but, it is
rather improbable to assume that after verification entries in the
attendance register and if the entries are found to be not
correct, he would withdraw his signature on Ex.P.4. Therefore,
there was no question of putting his signature on Ex.P.4 unless
he verified duly the entries in attendance register. According to
P.W.4, the signature of A.O. could only be after verifying the
necessary entries in the attendance register. So, a look at the
physical condition of Ex.P.4, amply proves the fact that A.O.
could only sign there after due verification of the claim made by
P.W.1 and P.W.6 that 53 workers attended duties for a period of
9 days. Apart from this, there is also Ex.P.10 sanitary work
certificate which is signed by A.O. to the effect that "this is to
certify that sanitary work executed by Annamayya Welfare
Society Contract Work Association, Tirupati, in the month of
March, 2006 is quiet satisfactory and the Society has arranged
477 duties of sanitation workers during the month of March,
2006". Ex.P.11 the advanced stamped receipt is dated
31.03.2006 signed by P.W.1 and P.W.6. The evidence of P.W.1
is that at the end of March, 2006, he submitted the bill under
Ex.P.4.
30) The contention of A.O. before P.W.1 during cross
examination is that it was only 05.04.2006 P.W.1 submitted
Ex.P.4 bill and then he signed the bill and asked P.W.1 to
produce the attendance register. The act of A.O. in this regard is
nothing but improbable and not a man of reasonable prudence.
It is to be noticed that already there was Ex.P.1 on 04.04.2006
before ACB, DSP and P.W.1 was asked to him to come on
05.04.2006 along with bribe at 2-00 p.m. It is very difficult to
say that P.W.1 could take such a risk of presenting Ex.P.1 on
04.04.2006 without submission of Ex.P.4 on 31.03.2006.
Therefore, the defence of A.O. that P.W.1 submitted the bill on
05.04.2006 cannot stands to any reason. A person like A.O. who
was discharging the duties as Health Supervisor, when P.W.1
allegedly brought the bill under Ex.P.4 on 05.04.2006 would not
sign it unless he verifies the genuinety of the claim. So, the
alleged act of A.O. in signing Ex.P.4, Ex.P.10 and Ex.P.11
without verification of the attendance register is not that of a
man of reasonable prudence. Hence, the contention of A.O. in
this regard is devoid of merits. So, the contention of A.O. that
there was no question of doing official favour as he already put
his signatures on Ex.P.4, Ex.P.10 and Ex.P.11 falsify his
contention to any extent. If that be the case, how he could keep
the bill with him without sending the same to P.W.4 or atleast
without returning to P.W.1 for presentation before P.W.4.
31) There is no dispute that after trapping A.O., ACB,
DSP along with P.W.2 and P.W.1 went to the office of A.O. and
seized Ex.P.4, Ex.P.10 and Ex.P.11 from the office of A.O. In
the light of the above, I am of the considered view that official
favour in respect of work of P.W.1 was pending with A.O. prior
to the trap and on the date of trap.
32) Now, this Court has to see as to whether the
prosecution before the Court below proved the allegations of
demand made by A.O. for bribe prior to trap and on the date of
trap and acceptance of the same form P.W.1 during post-trap.
As pointed out Ex.P.1 speaks that on 03.04.2006 P.W.1
approached A.O. and expressed his inability to pay the bribe for
which he reduced the bribe of Rs.2,000/- and asked P.W.1 to
pay the amount within two days and he is going on promotion.
Though Ex.P.1 did not contain the date on which A.O. allegedly
made demand to pay bribe of Rs.3,000/- prior to 03.04.2006
but according to P.W.1 even prior to 03.04.2006 also A.O. made
such demand. The demand on 03.04.2006 is interlinked with the
date of demand during post-trap i.e., 05.04.2006. The
prosecution examined P.W.1 to prove the allegations of demand
of bribe against A.O. and further examined P.W.2-the mediator
and P.W.9-the trap laying officer, to speak about the events that
were happened in the pre-trap and post-trap proceedings.
33) It is no doubt true that the Hon'ble Supreme Court
in N. Vijayakuamar's case (1 supra) dealing with an appeal
under the Prevention of Corruption Act filed by the appellant
held that to prove the offence under Sections 7 and 13(2) r/w
13(1) (d) of the P.C. Act, the prosecution has to establish the
allegations of demand and mere recovery of tainted amount is of
no use.
34) This Court in R. Jagadeswara Reddy's case (2 supra)
also dealt with the said aspect. Similar is the situation in respect
of another decision filed by the learned counsel for the appellant
in Akuathi Yellamanda's case (3 supra). Apart from this, the
Hon'ble Supreme Court in a Constitutional Bench in Neeraj
Dutta's case (4 supra) so as to resolve the issue of as to
whether there was any inconsistency between three decisions
i.e., B. Jayaraj vs. State of Andhra Pradesh (2014) 13 Supreme
Court Cases 55, P. Satyanarayana Murthy vs. District Inspector
of Police, State of Andhra Pradesh and another (2015) 10
Supreme Court Cases 152 and M. Narsinga Rao vs. State of
A.P., (2001) 1 SCC 691 gave series of clarifications and one of
those clarifications is to the effect that in proving the charges
under Sections 7 and 13(2) r/w 13(1) (d) of the P.C. Act,
demand is sin qua non which the prosecution has to establish.
Apart from this, the Hon'ble Supreme Court also held that upon
proof of fact in issue or foundational facts insofar as the charge
under Section 7 of the P.C. Act is concerned, the presumption
under Section 20 of the P.C. Act will arise and it is a legal
presumption which the court has to draw.
35) Now, I would like to appreciate as to whether the
evidence adduced by the prosecution proves the essential
ingredients of Sections 7 and 13(2) r/w 13(1) (d) of the P.C.
Act. Insofar as the allegations of demand of bribe on 03.04.2006
are concerned, as pointed out P.W.1 spoken the same and his
evidence has corroboration from the contents of Ex.P.1. Insofar
as the demand made by A.O. during post-trap, P.W.1 paid the
bribe of Rs.2,000/- to A.O. and consequent acceptance of the
same, the prosecution sought to prove the guilt against A.O.
basing on the evidence of P.W.1, P.W.2-the mediator and P.W.9-
the trap laying officer, Ex.P.6-pre-trap and Ex.P.8 post-trap
proceedings.
36) The evidence of P.W.1 in respect of the post-trap
proceedings is that on 05.04.2006 he went to ACB, DSP Office
along with bribe of Rs.2,000/-. The DSP introduced the
mediators to him and they asked him as to the contents of
Ex.P.1 and he confirmed the same. He produced the proposed
bribe of Rs.2,000/- in hundred rupee denomination before DSP
and DSP asked the Constable to prepare sodium carbonate
solution and Constable applied the said solution to the amount
and asked him to keep the same in the shirt pocket and
instructed him to pay the said amount only on further demand
by A.O. His evidence during post-trap is that on 05.04.2006
they left to the house of A.O. All of them got down from the
Jeep near Geethanjali School. DSP asked him to go to the house
of A.O. and reiterated the earlier instructions. He found A.O. in
his house sitting on the cot. He asked A.O. to certify the bill.
A.O. asked him whether he had brought the money and told him
that he brought the money and gave him Rs.2,000/- by picking
out from his shirt pocket. A.O. received it and counted them
with his both hands. A.O. told him to come to the office on the
next day and he would endorse the necessary certificates on the
bill. Then, he came out of the house of A.O. and relayed pre-
arranged signal at 5.30 p.m. Then, DSP, ACB officials and staff
entered into the house of A.O. DSP asked P.W.1 to wait outside.
After some time, he was called by DSP inside the house and DSP
asked him as to what happened and he narrated before the DSP
as to what happened.
37) The evidence of P.W.2, the mediators, supports the
evidence of P.W.1 insofar as the pre-trap proceedings are
concerned. Insofar as the post-trap proceedings, evidence of
P.W.2 is that during pre-trap they left from the DSP Office and
reached near the house of A.O. and at 5-30 p.m., DSP asked
P.W.1 to get down the Jeep and asked to go to the house of
A.O. by reiterating the earlier instructions. At 5-30 p.m., they
received pre-arranged signal. They entered into the house of
A.O. P.W.1 was there. DSP asked him to wait outside. They
found A.O. sitting on the cot. DSP ascertained the identity
particulars of A.O. DSP got conducted chemical test to both
hands of A.O. which yielded positive result. When DSP asked as
to how his hand fingers yielded positive result, A.O. stated his
version and took them into another bedroom and from the
cupboard he shown the amount. As per the instructions of the
DSP, he took out the cash of Rs.2,000/-. When he compared
numbers, they tallied with the numbers mentioned in the pre-
trap. The DSP interrogated A.O. and his version was recorded in
the post-trap proceedings. After that the DSP confronted with
P.W.1 about the version of A.O. and further version of P.W.1
was recorded. Ex.P.7 is the rough sketch. From the house of
A.O., they went to S.V.R.R.G. Hospital where the DSP seized
Ex.P.9 dispatch register, Ex.P.10 sanitation work satisfactory
certificate, Ex.P.11 stamped receipt and three sheets of muster
rolls under Ex.P.4. Post-trap proceedings were prepared under
Ex.P.12.
38) The evidence of P.W.9, the trap laying officer,
corroborates the evidence of P.W.2 insofar as the pre-trap and
post-trap proceedings are concerned.
39) As seen from the case of the prosecution, there is no
dispute that the amount that was put into the shirt pocket of
P.W.1 during pre-trap and the amount that was recovered from
the possession of A.O. during post-trap is one and the same.
There is no dispute that the tainted amount was recovered from
the possession of A.O. At this juncture, it is pertinent to look
into the cross examination part of P.W.1 so as to appreciate the
defence of A.O. During cross examination P.W.1 deposed that
he does not know one Mr. Narasimhulu, who was also a member
of their Society during the year 2003 and 2004. Bills of workers
are paid sometimes every month and sometimes once in two or
three months. He denied that whenever there was delay in
payment of wages, some of the workers used to request A.O. for
hand loan. He denied that during January and February of the
year 2003, he arranged loan of Rs.1131/- for Narasimhulu from
A.O. when he was a contract worker and that after formation of
the Society, Narasimhulu was their reliever and on 23.03.2004
he got paid Narasimhulu Rs.580/- towards his wages as reliever.
He denied that A.O. advanced money to Narasimhulu at his
request. He denied that A.O. demanded him several times to
get paid the amount due by Narasimhulu and he did not evince
any evidence. He denied that A.O. represented the matter to
Kumar Reddy and sought for his intervention in recovering the
dues from Narasimhulu. He does not know whether Kumar
Reddy told to A.O. that he would get the amounts after
Narasimhulu repays the same to him. He denied that Kumar
Reddy asked him to see that A.O. is paid back Rs.1721/- with
accrued interest and settled the debt at Rs.2,000/- and that he
(P.W.1) informed Kumar Reddy that their contract was cancelled
and that his relation with A.O. is not good and that he has to
pay the money to Kumar Reddy directly for onward
transmission. He denied that on 05.04.2006 he telephoned to
Kumar Reddy informing him that he is ready with money and
would pay to A.O. He denied that he developed grudge against
A.O. and taking advantage of liability of Narasimhulu, he
planned this trap and falsely trapped A.O. So, the defence of
A.O. before P.W.1 was denied.
40) The contention of A.O. in this regard is that what all
he received the amount from P.W.1 was only regarding the
liability of Narasimhulu, but, not towards any bribe. It is to be
noticed that A.O. sought to impeach the testimony of P.W.2 on
the ground that Mr. K. Prasad, worked as ACTO in their office at
Tirupati, complained against A.O. by a petition that A.O.
behaved rudely with the wife of K. Prasad when she entered into
the corridor while cleaning process was going on, as such, he is
deposing false. It is to be noticed that P.W.2 was a public
servant. Though he was working in Commercial Tax
Department, but it is improbable to assume that at the instance
of one K. Prasad, he deposed false. Absolutely, P.W.2 has no
reason to depose anything false. His evidence remained
unshaken during cross examination. The contents of Ex.P.8
post-trap is such that after both hand fingers of A.O. yielded
positive result, DSP asked A.O. as to whether he received any
amount from P.W.1 for which A.O. replied that he received the
amount from P.W.1 and then leads the ACB party to his
bedroom and shown the amount. After counting the amount and
after tallying with the same with reference to the entries in post-
trap, DSP further questioned A.O. and then replied that he
accepted the amount from G. Markondaiah in order to give the
same to one Kumar Reddy, one of the leaders of C.I.T.U.
However, A.O. failed to explain the purpose for which
Markondaiah vows money to Kumar Reddy. A.O. stated that he
is only a middleman for having received the money in between
Markondiah and Kumar Reddy. So, in Ex.P.8 post-trap
proceedings, A.O. did not reveal the role of one Narasimhulu.
Therefore, it is for the first time during the course of trial by
deviating from his defence in Ex.P.8, he introduced the name of
Narasimhulu. So, it is a case where A.O. changed his defence
from stage to stage. P.W.2, the mediator and P.W.9, the trap
laying officer had no reason to distort the version of A.O. in the
post-trap. Hence, A.O. did not examine the so-called
Narasimhulu in support of his defence. It is to be noticed that in
the light of the post-trap version of A.O. that he was only
intermediately and he received the amount from P.W.1 so as to
give the same to one Kumar Reddy, the investigating officer
duly examined P.W.8, Kumar Reddy during the investigation and
during investigation P.W.8 did not support the version of A.O.
41) Now, coming to the evidence of P.W.8, he
categorically deposed that he never asked P.W.1 to get
Rs.2,000/- for him. He did not ask P.W.1 to pay Rs.2,000/- to
A.O. for being paid to him. There is no possibility of any
mediator to collect such amounts. He had no necessity to collect
any money from A.O. During the cross examination, he deposed
that he knows Narasimhulu, a worker in Annamayya Welfare
Society. He left the Society. At one instance A.O. paid amount
to one of the workers at Annamayya Welfare Society at request
of P.W.1 which was not repaid and when it was brought to his
notice, he directed P.W.1 to repay the same to A.O. which P.W.1
agreed to pay. This incident took place about 15 days prior to
ACB trap laid against A.O. Therefore, the evidence of P.W.8 is of
no use in support of version of A.O. during post-trap. However,
A.O. did not clarify in the post-trap how he received the amount
from P.W.1 so as to give the same to Kumar Reddy. Here P.W.8
did not support the defence of A.O. and he denied the defence
of A.O. as projected in Ex.P.8 post-trap. During cross
examination of P.W.1, A.O. twisted the version and made an
attempt to connect Kumar Reddy with that of Narasimhulu and
P.W.1 denied the said theory. It is to be noticed that the defence
of A.O. before P.W.1 is that it was in January and February of
the year 2003 P.W.1 arranged a loan of Rs.1131/- for
Narasimhulu from A.O. when he was a contractor and on
23.03.2004 he got paid Rs.580/- towards his wages, as such,
Narasimhulu had a liability to pay the amount to A.O. and P.W.1
looked after the said payment of money by A.O. to Narasimhulu
during January and February of the year 2003. As already
pointed out P.W.8 negatived the defence of A.O. A.O. made a
vain attempt during the cross examination of P.W.8 so as to say
that at one instance A.O. paid some amounts to one of the
worker of Annamayya Welfare Society and in that connection
Kumar Reddy directed P.W.1 to repay the amount to A.O. It is
to be noticed that according to P.W.8, he did not speak the
name of Narasimhulu as the person to whom P.W.1 arranged
payment from A.O. Apart from this, according to P.W.8 in cross
examination the said incidence took place about 15 days prior to
ACB trap. It means that it must have been in the month of
February, 2006. So, according to defence of A.O. before P.W.1,
P.W.1 arranged payment to Narasimhulu from A.O. in January
and February of the year 2003. Absolutely the defence of A.O.
before P.W.1 was further falsified by the evidence of P.W.8 and
further answers spoken by P.W.8 in cross examination.
Absolutely, A.O. had nothing to probabalize his defence before
the Court below.
42) A.O. examined D.W.1 to speak something about
Ex.D.1. Ex.D.1 was a complaint against P.W.1 with regard to
other issues. The evidence of D.W.1 and Ex.D.1 has nothing to
do with the defence of A.O. Ex.D.2 and Ex.D.3 are relating to
the promotion of A.O. before the trap. In my considered view,
the allegation of the prosecution is that A.O. demanded P.W.1 to
pay the bribe within two days as he was going on promotion.
Therefore, the fact that A.O. was going to be promoted is not in
dispute. However, in my considered view, the evidence of D.W.1
and D.W.2 and Ex.D.1 to Ex.D.3 is of no use to the defence of
A.O. Ex.C.1 served copy of summons on D.W.1 had nothing to
do with the defence of A.O.
43) In the light of the above, I am of the considered
view that the prosecution categorically established before the
Court below that in pursuant to the demand made by A.O.,
P.W.1 chosen to lodge a report on 04.04.2006 and accordingly,
the ACB after conducting necessary preliminary enquiry, chosen
to trap A.O. and ultimately during post-trap, A.O. demanded
P.W.1 to pay the bribe of Rs.2,000/- and accepted the same
from P.W.1. There is no dispute that A.O. dealt with the tainted
amount and that the amount was recovered from his
possession. It is no doubt true that mere recovery of the
amount does not if so facto would not prove the facts. As this
Court already pointed out, the prosecution categorically proved
the pendency of the official favour of P.W.1 before A.O. prior to
the date and on the date of trap. There is evidence of P.W.1
which remained unshaken in cross examination to prove that
A.O. demanded him to pay the bribe of Rs.3,000/-, later it was
reduced to Rs.2,000/- and accepted the same during post-trap.
This Court has no reason to disbelieve the evidence of P.W.1.
On the other hand, A.O. changed his defence from stage to
stage and miserably failed to probabalize his defence theory. He
did not examine so-called Narasimhulu for obvious reasons best
known to him. Hence, in my considered view, the evidence on
record categorically proves the essential ingredients of Sections
7 and 13(2) r/w 13(1)(d) of the P.C. Act. The act of the A.O. in
demanding P.W.1 to pay the bribe and acceptance of the bribe
amount would constitute the offence under Section 7 of the P.C.
Act. The further act of the A.O. in obtaining the amount of
Rs.2,000/- from P.W.1 on the ground that he will do official
favour would also amounts to obtaining of peculiar advantage
which is nothing but a criminal misconduct within the meaning
of Section 13(2) r/w 13(1)(d) of the P.C Act. The prosecution
has categorically proved before the Court below the foundational
facts and the facts in issue.
44) As this Court already pointed out, the Hon'ble
Supreme Court in Neeraj Dutta's case (4 supra) categorically
held that upon proving the foundational facts and facts in issue,
the presumption would arise in favour of the prosecution under
Section 20 of the P.C. Act.
45) Section 20 of the P.C. Act 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.
46) Therefore, as the evidence on record proves the
foundational facts alleged by the prosecution, prosecution has
benefit of the presumption under Section 20 of the P.C. Act that
A.O. demanded P.W.1 and obtained the amount for doing an
official favour. A.O. has miserably failed to rebut the said
presumption. Having put up a theory in post-trap that he
accepted the amount from P.W.1 for one Kumar Reddy, he failed
to probabalize his defence in the light of the elaborate reasons
furnished supra.
47) A perusal of the judgment of the Court below reveals
that the Special Judge for SPE & ACB Cases, Nellore, rightly
looked into the oral as well as documentary evidence and with
sound reasons, upheld the contention of the prosecution that
official favour in respect of the work of P.W.1 was pending with
A.O. The learned Special Judge duly looked into the defence
theory and with cogent reasons disbelieved the defence theory
and further held that the prosecution has proved the essential
ingredients of Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act.
Further with sound reasons, the learned Special Judge applied
the benefit of presumption in favour of the prosecution under
Section 20 of the P.C. Act. In the light of the above, this Court is
of the considered view that the prosecution before the Court
below proved the charges as above against A.O. beyond
reasonable doubt.
48) Having regard to the above, I am of the considered
view that absolutely there are no merits in the appeal, as such,
the appeal is liable to be dismissed.
49) In the result, the Criminal Appeal is dismissed, as
such, the judgment, dated 21.07.2011 in C.C.No.4 of 2007, on
the file of Special Judge for SPE & ACB Cases, Nellore, shall
stand confirmed in all respects.
50) The Registry is directed to take steps immediately
under Section 388 Cr.P.C. to certify the order of this Court to
the trial Court on or before 08.05.2023 and on such certification,
the trial Court shall take necessary steps to carry out the
sentence imposed against the appellant and to report
compliance to this Court.
51) The Registry is further directed that a copy of this
judgment shall forward in the name of the Presiding Officer and
also to the Head of the Department of the Accused Officer.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 02.05.2023.
Note: L.R. Copy be marked.
B/o
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.883 OF 2011
Registry to circulate a copy of this judgment
to the Court below on or before 08.05.2023.
Date: 02.05.2023
Note: L.R. copy be marked.
PGR
