Unknown vs The Hon'Ble Sri Justice A.V. ...
2023 Latest Caselaw 2893 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

            CRIMINAL APPEAL NO.1241 OF 2007

JUDGMENT:-

      This Criminal Appeal is filed by the State, represented by

Inspector of Police, Anti-Corruption Bureau, Vijayawada Range,

Vijayawada, challenging the judgment, dated 30.11.2006 in

C.C.No.22 of 2002, on the file of Special Judge for SPE & ACB

Cases, Vijayawada ("Special Judge" for short), whereunder the

learned Special Judge, found the Accused Officer No.1 (A.O.1)

not guilty of the charges under Section 7 and 13(1)(d) r/w 13(2)

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

further found Accused Nos.2 and 3 (A.2 and A.3) not guilty of

the charges under Sections 12 and 15 of the P.C. Act and

accordingly, acquitted A.O.1, A.2 and A.3 under Section 248(1)

of the Code of Criminal Procedure ("Cr.P.C." for short) and

further made an order to prosecute P.W.5 for perjury.

      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., Vijayawada Range, Vijayawada, filed a charge sheet in

Crime No.22/ACB-VJA/00, alleging in substance as follows:
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     (i) A.O.1 was working as Junior Assistant in the office of

Deputy Transport Commissioner, Vijayawada as on 30.10.2000

and also on the date of trap i.e., 03.11.2000, as such, he was a

public servant within the meaning of Section 2(c) of the P.C.

Act, 1988.

     (ii)    A.2 worked as R.T.A. Agent, Vijayawada and A.3 as

the Assistant of A.2 and they are private person.

     (iii) One Abdul Khader S/o Shaik Dastagiri, resident of

Bhavanipuram, Vijayawada (P.W.5) was eking out his livelihood

by running a Tractor bearing No.APL/8171-8172 and due to

financial difficulties, he could not maintain the tractor and

stopped plying it from 1999 onwards and hence submitted an

affidavit along with C-book to A.O.1 on 12.10.2000 for tax

exemption for the stoppage period.

     (iv) The M.V.I. inspected the tractor on 28.10.2000 and

gave a favourable report on 30.10.2000 and P.W.5 submitted

the report to A.O.1 and requested him to process the file for

getting tax exemption for the stoppage period of his Tractor. On

that A.O.1 demanded Rs.1,000/- as bribe for doing the said

official favour as gratification, for which P.W.5 expressed his

inability to pay the demanded bribe amount and on that A.O.1

informed him that he would not put up his file, unless he was

bribed.
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      (v) Again on 03.11.2000 P.W.5 approached the office of

A.O.1 in the morning and when enquired, A.O.1 reiterated his

demand of bribe, for which P.W.5 expressed his inability. Then

A.O.1 instructed him to pay the said bribe on the same day

evening and take his C-book and as P.W.5 was unwilling to pay

the demanded bribe amount to A.O.1, he proceeded to the office

of   P.W.7-the   Dy.S.P.,   A.C.B.,    Vijayawada,   and   presented

Ex.P.13-report and the       Dy.S.P.    after observing necessary

formalities, registered a case.

      (vi) On 03.11.2000 at about 4-55 p.m., P.W.5 along with

P.W.1 approached the office of A.O.1 and requested him to

process the above said file. Then A.O.1 reiterated his earlier

demand and directed P.W.5 to give the same to his agent A.2

and as per the instructions of A.2, A.2's Agent A.3 accepted the

bribe amount from P.W.5 and thereby the accused were

successfully trapped and on enquiry by the Dy.S.P. A.3 produced

the tainted amount from his front shirt pocket and when S.C.

solution test was conducted to both hand fingers of A.3, it

proved positive, so also the inner linings of the shirt pocket and

thereafter the tainted amount of Rs.1,000/- and other relevant

record were seized.
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      (vii) The Government of Andhra Pradesh has accorded

sanction   to   prosecute   A.O.1    vide   G.O.Ms.No.158,   dated

11.09.2002.

      Hence, the charge sheet.

      4)    The learned Special Judge took cognizance of the

case under the above provisions of law and after appearance of

the A.O.1, A.2 and A.3 and after following the procedure under

Section 239 of Cr.P.C., framed charges under Sections 7 and

13(1)(d) r/w 13(2) of P.C. Act, 1988 against A.O.1 and further

charge under Section 12 of P.C. Act, 1988 against A.2 and A.3

and further charge under Section 15 of the P.C. Act against A.2

and A.3 and explained the same to them in Telugu for which

they pleaded not guilty and claimed to be tried.

      5)    In order to establish the guilt against A.O.1, A.2 and

A.3, the prosecution before the Court below, examined P.W.1 to

P.W.7 and got marked Ex.P.1 to Ex.P.16 and M.O.1 to M.O.9.

A.O.1, A.2 and A.3 got examined D.W.1 and got marked Ex.D.1

in support of their case. After closure of the evidence of

prosecution, A.O.1, A.2 and A.3 were examined under Section

313 of Cr.P.C. with reference to the incriminating circumstances

appearing in the evidence let in by the prosecution, for which

they denied the same. A.O.1 stated that he was unnecessarily

implicated in this case. A.2 stated that he is not a public servant
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and the Agent Balaji instructed him to look after the case papers

and asked him to receive Rs.1,000/- as fee from P.W.5 and he

never demanded or accepted any amount and never instructed

him to pay the money to A.3 and he was falsely implicated. A.3

stated that he does not know about the money and for what

reason it was given and he does not know P.W.5 and never

talked to him.

     6)    The learned Special Judge on hearing both sides and

on considering the oral as well as documentary evidence, found

A.O.1, A.2 and A.3 not guilty of the charges and accordingly,

acquitted them under Section 248(1) of Cr.P.C. Felt aggrieved

of the same, the unsuccessful State filed the present appeal

challenging the judgment of the Court below in acquitting A.O.1,

A.2 and A.3.

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

determination are as follows:

     (1) Whether the prosecution before the Court below
     proved the pendency of the official favour of P.W.5 before
     A.O.1 prior to the date of trap and on the date of trap?

     (2) Whether the prosecution proved before the Court
     below that A.O.1 demanded P.W.5 to pay bribe of
     Rs.1,000/- for doing official favour, as such, on the date of
     trap accepted the same through A.2 and A.3 as alleged?
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      (3) Whether the prosecution proved before the Court
      below that A.2 and A.3 facilitated and abetted the
      commission of offence as alleged in collusion with A.O.1.?

      (4) Whether there are any grounds to interfere with the
      judgment of the learned Special Judge for SPE & ACB
      Cases, Vijayawada?


Point Nos.1 to 4:-

      8)        Firstly, insofar as the fact that A.O.1 was a public

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

that the prosecution obtained a valid sanction is concerned, the

Court below found favour with the case of the prosecution.

Before the Court below, the prosecution examined P.W.3, the

Section Officer and got marked Ex.P.9 sanction order. The above

findings   of    the   Court   below   are   not   challenged   by   the

respondents during the course of hearing of the appeal. Hence,

insofar that aspect is concerned, there is no dispute.

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

for A.C.B. and Special Public Prosecutor for State, would contend

that for obvious reasons, P.W.5 when he was examined before

the Court below deviated from the contents of report lodged by

him and deposed false for which the Court below ordered

prosecution of him on the ground of perjury. The learned Special

Judge found favour with the case of the prosecution with regard

to the pendency of the official favour. With regard to the

allegations of demand of bribe from P.W.5 by A.O.1, P.W.5 did

not support the case of the prosecution. The case of the

prosecution is that prior to the date of trap, twice A.O.1

demanded P.W.5 to pay the bribe, but, he did not support the

case of the prosecution. However, during the course of trap

when P.W.5 approached A.O.1, he demanded bribe and asked

A.2 to receive and then A.2 asked A.3 to receive the same and

there is no dispute with regard to the recovery of tainted

amount from A.3. For obvious reasons, P.W.1-the mediator and

P.W.4-another mediator during the course of cross examination

deposed in favour of the A.O.1, A.2 and A.3. However, the

recovery of the tainted amount from A.3 is not in dispute. A.2

and A.3 had no business to remain in the office of A.O.1. With

the above submissions, she contends that the evidence on

record would warrant the conviction.

10) Sri Badeti Venkata Ratnam, learned counsel for the

first respondent, would seeks to support the judgment of the

learned Special Judge on the ground that though the pendency

of the official favour was held to be established by the

prosecution, but, the findings of the learned Special Judge were

that it was pending by 30.10.2000, but, not on the date of trap.

However, as P.W.5 did not support the case of the prosecution,

there was no substantive evidence to prove the allegations

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

A.O.1. The learned Special Judge with sound reasons extended

an order of acquittal which is not liable to be interfered with. He

would further submit that this argument can also be considered

insofar as second and third respondents (A.2 and A.3) are

concerned and that they have nothing to do with A.O.1 and

being R.T.A. Agents, they used to attend the office of A.O.1 in

discharge of their duties towards their clients and P.W.1, the

mediator did not support the case of the prosecution, as such,

he sought to support the judgment of the learned Special Judge.

11) Firstly, this Court would like to deal with the

pendency of the official favour. P.W.1 is mediator for the pre-

trap and post-trap. P.W.2 worked as Senior Assistant in the

office of Deputy Transport Commissioner, Vijayawada. P.W.4

was another panch witness for the pre-trap and post-trap

proceedings. P.W.5 was no other than the defacto-complainant.

P.W.6 was the Inspector of ACB and P.W.7 was the trap laying

officer.

12) Insofar as the evidence of P.W.1 during events

happened in the post-trap with regard to the seizure of

documents is that D.S.P. seized the identity card of A.2 which is

Ex.P.3. Ex.P.4 is the Photostat copy of certificate of registration

of Tractor and Trailer. Ex.P.5 is made up file containing 12

sheets relating to application of Abdul Khader, etc., and it was

seized from the possession of A.O.1.

13) According to P.W.2, L.W.1-Abdul Khader applied for

exemption of tax for stoppage of his tractor and trailer before

him. After perusing the file i.e., the report of M.V. Inspector, he

recommended that the stoppage of vehicle may be accepted

from exemption of tax. He sent the file to Assistant Secretary,

who approved and again it was sent to A.O.1. Again A.O.1 put

up the same on 01.11.2000 for his approval. He (P.W.2)

approved the file by putting the signature and placed for final

order before Assistant Secretary/Deputy Transport

Commissioner. Ex.P.5 is the said file. P.W.4, another mediator

testified about the seizure of documents from A.O.1 during the

course of post trap. According to him, on enquiry by D.S.P.,

A.O.1 produced Ex.P.5 file so also Ex.P.4 and Ex.P.7. P.W.5, the

defacto-complainant, did not support the case of the

prosecution. P.W.7, the trap laying officer, deposed about the

seizure of file from A.O.1 during the post-trap. The contention of

A.O.1 before the Court below is that there was no official favour

in respect of P.W.5 pending with him as he did already his

duties.

14) It is to be noticed that according to P.W.5, he

submitted Ex.P.10 on 12.10.2000 in the name of his father

along with Ex.P.11 and the authorization under Ex.P.12 to

attend on his behalf. Though P.W.2 deposed that by 01.11.2000

A.O.1 complied his part of duties, but, the fact remained is that

as on the alleged date of demand i.e., 30.10.2000, the official

favour was pending with A.O.1. Apart from this, even during

the post-trap, A.O.1 produced the file relating to P.W.5 before

the mediators as well as trap laying officer. Under the

circumstances, the prosecution categorically established the

pendency of the official favour.

15) Now, this Court has to see as to whether the

prosecution proved the allegations of demand and acceptance of

bribe by A.O.1 and that A.2 and A.3 facilitated the commission

of offence. As seen from Ex.P.13, the report lodged by P.W.5

before ACB, the substance of the allegation is that he had

Tractor bearing No.APL 8171-8172 which was in the name of his

father. It is not plying from 30.09.1999 due to repairs and

financial difficulties. So as to claim tax exemption, he prepared

affidavit and submitted along with C-book and demand draft to

A.O.1 on 12.10.2000. On 28.10.2000 Motor Vehicles Inspector

inspected the vehicle and gave a report. Then, he gave the said

report to A.O.1 on 30.10.2000. A.O.1 demanded bribe of

Rs.1,000/- and told him that unless he has paid, his work will

not done. Again on 03.11.2000 when he went to R.T.O. Office

at 11-00 a.m., A.O.1 demanded Rs.1,000/- and that he was

instructed to pay the amount by evening, as such, he presented

report.

16) Coming to the evidence of P.W.5, admittedly, he did

not support the case of the prosecution. According to him, he

submitted Ex.P.10 application along with Ex.P.11 Notary

affidavit to A.2 without knowing his identity. Then, A.2 told him

that to process the same, he has to pay Rs.1,000/-. So, he

approached the ACB. Ex.P.13 is report. He did not support the

case of the prosecution with regard to pre-trap and post-trap.

His evidence relating to post-trap is that he approached A.2 and

A.2 asked him whether he brought the amount and asked him to

give the amount to A.3, as such, he gave the amount to A.3. By

virtue of the answers elicited from him by the learned Special

Public Prosecutor, it is very clear that he deliberately deposed

false against the case of the prosecution so as to help the A.O.1,

A.2 and A.3, for which the Court below rightly gave a finding

that it is expedient in the interest of justice that he shall be

prosecuted for perjury and gave directions to file a complaint.

Absolutely, with regard to the allegations of demand of bribe on

30.10.2000 and on 03.11.2000 prior to the trap and further

demand during post-trap, there was no substantive evidence

adduced by the prosecution. Coming to the evidence of P.W.1,

he was accompanying witness with instructions to him to

observe the events between A.O.1 and P.W.5, but, according to

P.W.1, the accompanying witness, he noticed that the

complainant approached one person, who was standing and had

some conversation. The said person shown another person and

then the complainant approached him and had some

conversation. The said person also shown another person and

the complainant approached him and gave the amount. He

deposed that the accused are the persons to whom he seen in

the office. Therefore, it is a case where even the evidence of

P.W.1 is not clear that A.O.1 demanded P.W.5 to pay the bribe

and directed him to pay the amount to A.2 and A.2 directed

P.W.5 to pay the amount to A.3. So, the evidence of P.W.1 was

of no use to the case of the prosecution. Apart from this, the

prosecution also cross examined him after cross examination of

the defence counsel. Absolutely, there remained nothing in the

evidence of P.W.1 so as to say that A.O.1 demanded bribe from

P.W.5 during post-trap and accepted the brie through A.2 and

A.3. P.W.4 another mahazar witness was not an accompanying

witness and his evidence is of no use as he did not observe the

events between P.W.5 and A.O.1.

17) There is no dispute that the amount was recovered

from A.3. There is no dispute that A.2 and A.3 were the R.T.A.

agents, who used to work in R.T.A. Office. The prosecution failed

to establish the link between A.O.1 and A.2 and A.3. The

accused examined D.W.1 who deposed that he is working as

R.T.A. Agent at Bhavanipuram, Vijayawada. He was the

authorized agent. He knows A.2, who worked as Agent. He

knows A.3, who worked under A.2. Ex.P.3 is the identity card of

A.2. Certificates will be issued by Deputy Transport

Commissioner in favour of authorized agents. Ex.D.1 is the

attested Photostat copy of the licence given to A.2. He signed

Ex.P.12 issued by Sk. Dastagiri in connection with his vehicle

and he entrusted the said work on commission basis through A.2

as he was busy on 12.10.2000. Hence, P.W.5, the owner of the

vehicle, took the documents to the office of DTC and he asked

P.W.5 to contact A.2 who will attend. So, A.2 got the work

completed on 01.11.2000. Ex.P.4 was stoppage of tax was

accepted. He came to know that A.2 and A.3 were falsely

implicated.

18) By virtue of the above, there was no dispute that

A.2 and A.3 were working as R.T.A. Agents, whose duty was to

assist the clients by getting necessary commission fee, etc. The

prosecution miserably failed to establish the link between A.O.1

and A.2 & A.3. Even assuming for a moment that P.W.5 paid the

amount to A.3 at the instructions of A.2, it cannot be taken as

bribe as P.W.5 did not support the case of the prosecution.

Absolutely, there was no substantive evidence to prove the

demand, dated 30.10.2000 and 03.11.2000 prior to the trap and

during post-trap. Apart from this, absolutely, there was no

substantive evidence to prove that A.2 and A.3 facilitated the

commission of offence by aiding and abetting the A.O.1. The

Court below with sound reasons found A.O.1 and A.2 and A.3

not guilty of the charges. Under the circumstances, I do not see

any reason to interfere with the judgment of the Court below.

49) In the result, the Criminal Appeal is dismissed.

50) The Registry is directed to mark a copy of this

judgment to the concerned Judicial Magistrate of First Class

where the perjury case against P.W.5 is pending.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 05.05.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1241 OF 2007

Date: 05.05.2023

PGR