Andhra Pradesh High Court - Amravati
Sri B.Apparao ,A2 vs State Rep By Inspector Of Police , on 22 January, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL Nos.857 & 858 OF 2007
Between:
CRIMINAL APPEAL No.857 OF 2007
B. Apparao, S/o.Butchaiah,
Aged 50 years, Senior Assistant,
O/o.CTO, Suryabagh,
Visakhapatnam. .... Appellant/AO-2
Versus
The State, Rep. by Inspector of Police,
ACB, Visakhapatnam. .... Respondent/Respondent.
CRIMINAL APPEAL No.858 OF 2007
1. M. Appalaraju,
S/o.Satyam (Died). .... Appellant/AO-1
2. M. Kanaka Ratnam,
W/o. Late M. Appalaraju,
Aged about 60 years,
Off:House Wife, R/o.H.No.4-5-8,
Relli Street, Narsipatnam,
Anakapalli District, Narsipatnam,
AP-531116.
Versus
The State, Rep. by Inspector of Police,
ACB, Visakhapatnam. .... Respondent/Respondent.
DATE OF COMMON JUDGMENT PRONOUNCED : 22.01.2024
2
AVRB,J
Crl.A. Nos.857 & 858/2007
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the common judgment? Yes/No
2. Whether the copy of common judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
the fair copy of the common judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
3
AVRB,J
Crl.A. Nos.857 & 858/2007
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL Nos.857 & 858 OF 2007
% 22.01.2024
# Between:
+ CRIMINAL APPEAL No.857 OF 2007
B. Apparao, S/o.Butchaiah,
Aged 50 years, Senior Assistant,
O/o.CTO, Suryabagh,
Visakhapatnam. .... Appellant/AO-2
Versus
The State, Rep. by Inspector of Police,
ACB, Visakhapatnam. .... Respondent/Respondent.
! Counsel for the Appellant : Sri A. Hari Prasad Reddy.
(Criminal Appeal No.857/2007) Rep. Sri D. Purnachandra Reddy.
! Counsel for the Appellant : Sri A. Hari Prasad Reddy,
(Criminal Appeal No.858/2007)
^ Counsel for the Respondent : Smt.A.Gayathri Reddy,
Learned Standing Counsel-
Special Public Prosecutor.
> Head Note:
? Cases referred:
1) 2016 (1) ALT (Crl.)(SC) 160 (FB)
2) 2011 (6) SCC 450
3) 2013 (3) ALT (Crl.)(SC) 316 (DB)
4) (2002) 10 SCC 371
5) 2014 (13) SCC 55
6) (2022) SCC OnLine SC 1724
This Court made the following:
4
AVRB,J
Crl.A. Nos.857 & 858/2007
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL Nos.857 AND 858 OF 2007
COMMON JUDGMENT:
Challenge in the Criminal Appeal Nos.857 and 858 of 2007
is to the judgment, dated 21.06.2007, in Calender Case No.29 of
2001, on the file of the Court of III Additional District and Sessions
Judge-cum-Special Judge for ACB Cases, Visakhapatnam (for
short, 'the learned Special Judge') by the Accused Officer No.2
(AO-2) and Accused Officer No.1 (AO-1) respectively.
2. The parties to these Criminal Appeals will hereinafter be
referred to as described before the trial Court, for the sake of
convenience.
3. The case of the prosecution, in brief, as set out in the charge
sheet filed by the by the Inspector of Police, Anti-Corruption
Bureau (ACB), Visakhapatnam pertaining to Crime No.7/RC-
WLR/2000 of ACB, Visakhapatnam for the offences 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') and Sections 120-B
and 201 of the Indian Penal Code, 1860 (for short, 'the IPC'), is
that the Accused Officer No.1 (AO-1) by name M. Appalaraju
worked as Deputy Commercial Tax Officer (DCTO), Suryabagh,
AVRB,J
Crl.A. Nos.857 & 858/2007
Visakhapatnam from 16.07.1998 till he was placed under
suspension on 26.07.2000 as such he is a 'Public Servant' within
the meaning of Section 2(c) of the PC Act. Accused Officer No.2 by
name B. Apparao worked as Senior Assistant in the office of
Commercial Tax Officer, Suryabagh, Visakhapatnam from
14.07.1999 till he was placed under suspension on 26.07.2000 as
such he is a 'Public Servant' within the meaning of Section 2(c) of
the PC Act.
(i) LW.1 - Thyaveedu Baburaj is the Manager of Queens
Bakery and Sweets Shop situated in Shop No.21, RTC Complex,
Visakhapatnam and he has been doing business on behalf of LW.2
- M. Tarakeswari, who issued authorization, dated 18.09.1996, in
his favour appointing him as Manager of the said Shop to look
after the business affairs on her behalf as she could not maintain
the business personally. Thus, LW.1 has been looking after the
business and other matters such as filing of commercial tax
returns etc. The stocks in the shop are being purchased from
authorized registered dealers on genuine bills and being sold to
public and nothing is being manufactured in his shop. There is no
need to pay any Sales Tax to the Commercial Tax Department in
this regard. On 30.05.2000, he filed returns in respect of his shop
for the year 1999-2000 before AO-1, but the assessment order was
AVRB,J
Crl.A. Nos.857 & 858/2007
not given to him. On 09.06.2000, AO-1 demanded him to pay
bribe of Rs.2,000/-, when he approached AO-1 in his office to
enquire about his assessment. AO-1 instructed him to pay the
said bribe amount on 12.06.2000 to make the assessment and
return assessment order. When LW.1 expressed his inability to
pay that much of amount, since his business is a little one, AO-1
threatened him that unless the demanded bribe amount is paid,
he would object the assessment in respect of the shop and cause
hindrance to his business. Hence, LW.1 reluctantly agreed to pay
the bribe of Rs.2,000/- to AO-1 and subsequently he lodged a
report with the ACB officials on 11.06.2000. LW.14 - D.V.S.
Bhaskara Raju, Deputy Superintendent of Police, ACB,
Visakhapatnam registered the report of LW.1 as a case in Crime
No.7/RC-WLR/2000, as above, on 12.06.2000 and investigated
into.
(ii) On 12.06.2000 at 04:45 p.m. AO-1 was trapped in his
office chambers, situated in the office of Commercial Tax Officer
when he demanded and accepted the bribe of Rs.1,500/- from
LW.1 from out of the demanded bribe amount of Rs.2,000/-. AO-1
also asked LW.1 to pay the remaining amount of Rs.500/- to AO-2
to receive the assessment order from AO-2. As per the instructions
of AO-1, LW.1 approached AO-2 in the main hall of the office of
AVRB,J
Crl.A. Nos.857 & 858/2007
LW.5 - Commercial Tax Officer and enquired about his
assessment order. AO-2 demanded him to pay the bribe of
Rs.500/-. When the complainant paid the amount of Rs.500/- to
AO-2, he received the same, counted with both hands and kept it
in a small zip bag and thereafter he delivered the assessment
order acknowledgment i.e., Form-AA9 (Part-B) acknowledgment-
cum-demand notice to LW.1 after obtaining acknowledgment with
ante date as 16.05.2000 instead of 12.06.2000, though LW.1
expressed his pretest for putting his signature with ante date.
AO-2 on seeing the DSP, ACB, Visakhapatnam (LW.14) and other
ACB officials in the chambers of AO-1, passed on the zip bag
containing tainted cash of Rs.500/- to LW.3 - Kotilingala Trinadh
- a Tea Stall owner at VUDA Complex, who in turn passed the zip
bag to LW.4 - Kotilingala Padma, his wife, to hide the zip bag. The
chemical test conducted to both hand fingers of AO-1 and inner
lining of his right side pant pocket was proved positive. The
tainted amount of Rs.1,500/- was recovered from AO-1 at his
instance. The chemical test conducted to both hand fingers of
AO-2 and zip bag pocket of AO-2 was also proved positive. The
bribe amount of Rs.500/- was recovered at the instance of AO-2
from his zip bag which was passed on to LW.3 and from him to
LW.4. The serial numbers of the tainted amount which were
AVRB,J
Crl.A. Nos.857 & 858/2007
mentioned in the pre-trap proceedings were tallied with the tainted
amount that was recovered from AO-1 and AO-2. LW.14 seized the
tainted currency of Rs.1,500/- and Rs.500/- from AO-1 and AO-2
respectively. The explanation tendered by AO-1 is far from truth.
AO-2 admitted that he received Rs.500/- from LW.1 and delivered
the acknowledgment to the complainant during the post-trap.
(iii) The Government of Andhra Pradesh being the
competent authority accorded sanction to prosecute the AO-1 and
AO-2 in a competent Court of law separately vide G.O.Ms.Nos.541
and 542, dated 04.08.2001 of Revenue (Vigilance-1) Department.
So, both the Accused Officers are liable to be punished for the
offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of the
PC Act and further AO-2 is liable to be punished for the offence
under Section 201 IPC.
4. The learned Special Judge took cognizance of the case under
the above provisions of law. After appearance of the Accused
Officers, by complying the necessary formalities under Section 207
Cr.P.C, the learned Special Judge framed charges under Sections
7 and 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and
AO-2 and further a charge under Section 201 of IPC against AO-2,
AVRB,J
Crl.A. Nos.857 & 858/2007
read over 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 the Accused Officers,
the prosecution before the trial Court examined PWs.1 to PW.6
and got marked Exs.P-1 to P-21, P-2(a) and MOs.1 to MO.14.
6. After closure of the evidence of the prosecution, both the
Accused Officers were examined under Section 313 Cr.P.C with
reference to the incriminating circumstances appearing in the
evidence let in by the prosecution, for which they denied the
incriminating circumstances and reported defence evidence. In
furtherance of their defence, the Accused Officers got examined
DW.1 - B. Nagendra, who is a Junior Assistant in the office of
Commercial Tax Officer, Chinna Waltair, Visakhapatnam.
7. The learned Special Judge, on hearing both sides and after
considering the oral and documentary evidence on record, made a
finding that as the prosecution failed to establish the allegations of
demand as against AO-1 and AO-2, acquitted both of them under
Section 248(1) of the Code of Criminal Procedure, 1973 (for short,
'the Cr.P.C') for the charge under Section 7 of the PC Act. The
learned Special Judge, however, found AO-1 and AO-2 guilty of
AVRB,J
Crl.A. Nos.857 & 858/2007
the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act
and further found AO-2 guilty of the charge under Section 201 IPC
and convicted them under Section 248(2) Cr.P.C and, after
questioning them about the quantum of sentence, sentenced them
to undergo Rigorous Imprisonment for one year each and to pay a
fine of Rs.1,000/- each in default to suffer Simple Imprisonment
for two months each for the offence under Section 13(1)(d) R/w.
Section 13(2) of the PC Act. Further, the learned Special Judge
sentenced AO-2 to undergo Rigorous Imprisonment for six months
and to pay a fine of Rs.500/- in default to suffer Simple
Imprisonment for one month for the offence under Section 201 IPC
and that the punishment imposed against AO-2 shall run
concurrently.
8. Felt aggrieved of the aforesaid conviction and sentence
imposed, the unsuccessful Accused Officer No.1 filed Criminal
Appeal No.858 of 2007 and Accused Officer No.2 filed Criminal
Appeal No.857 of 2007.
9. As against the finding of the learned Special Judge that the
prosecution did not prove the charge under Section 7 of the PC Act
against AO-1 and AO-2, the prosecution did not file any Appeal.
So, the scope of these Appeals is confined to decide the validity of
AVRB,J
Crl.A. Nos.857 & 858/2007
Section 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and
AO-2 and further Section 201 IPC against AO-2 for causing
disappearance of evidence relating to Section 13(1)(d) R/w. Section
13(2) of the PC Act.
10. Now, in deciding these Appeals, the points that arise for
consideration are as follows:
1) Whether the prosecution before the trial Court
proved that AO-1 and AO-2 are public servants within
the meaning of Section 2(c) of the PC Act and whether
the prosecution obtained a valid sanction in terms of
Section 19 of the PC Act to prosecute them for the
charges framed?
2) Whether the prosecution before the trial Court
proved that AO-1 and AO-2 by corrupt or illegal means
or by abusing their official position as public servants
obtained a sum of Rs.1,500/- and Rs.500/- from PW.1
towards bribe in the manner as alleged by the
prosecution?
3) Whether AO-2 caused disappearance of evidence
relating to receiving a sum of Rs.500/- by him from
PW.1 so as to hide the commission of offence?
AVRB,J
Crl.A. Nos.857 & 858/2007
4) Whether the judgment, dated 21.06.2007, in
Calender Case No.29 of 2001, is sustainable under law
and facts and whether there are any grounds to
interfere with the same?
11. POINT No.1: There is no dispute that both the Accused
Officers were working as Public Servants within the meaning of
Section 2(c) of the PC Act and they were drawing salary from the
Government. So, absolutely, there is no dispute that both the
Accused Officers were working as Public Servants within the
meaning of Section 2(c) of the PC Act. With regard to the sanction
obtained by the prosecution, the prosecution exhibited sanction
orders under Exs.P-20 and P-21. It is to be noted that, as evident
from the deposition of PW.6 - Trap Laying Officer, the learned
defence counsel before the learned Special Judge gave his consent
to exhibit Exs.P-20 and P-21 without examination of the person or
who is acquainted with the signature of the sanctioning authority
who issued Exs.P-20 and P-21. So, as evident from Exs.P-20 and
P-21, absolutely, there is application of mind by the sanctioning
authority with reference to the allegations against AO-1 and AO-2.
So, a perusal of Exs.P-20 and P-21, undoubtedly, shows that the
sanctioning authority after due application of mind into the
AVRB,J
Crl.A. Nos.857 & 858/2007
allegations of prosecution decided to accord sanction. Accused
Officers had no objection for marking of Exs.P-20 and P-21 and
further they did not dispute the contents of Exs.P-20 and P-21
before the trial Court. Even in the grounds of Appeal, they did not
challenge the findings of the learned Special Judge that the
prosecution obtained a valid sanction under Section 19 of the PC
Act. Hence, this point is answered accordingly in favour of the
prosecution.
12. POINT Nos.2 to 4: PW.1 is no other than the de-facto
complainant who lodged Ex.P-3 report with the DSP, ACB,
Visakhapatnam. PW.2 is the mediator for the pre-trap and post-
trap proceedings, who supported the case of prosecution. PW.3
and PW.4 did not support the case of prosecution. PW.5 was
examined by the prosecution to speak about the procedural
aspects in respect of filing returns in the Commercial Tax
Department. PW.6 is the Trap Laying Officer.
13. Before going to appreciate the evidence with reference to the
contentions advanced, this Court would like to place on record
that insofar as Criminal Appeal No.858 of 2007 filed by AO-1 is
concerned, he died during pendency of the Criminal Appeal. The
legal representative of AO-1 is impleaded to prosecute the Appeal
AVRB,J
Crl.A. Nos.857 & 858/2007
vide orders of this Court in I.A. No.2 of 2022, dated 19.06.2023.
So, insofar as Criminal Appeal No.858 of 2007 is concerned,
Appellant/AO-1 is no more and his wife is prosecuting the Appeal.
14. Sri A. Hariprasad Reddy, learned counsel for the
appellant/AO-1 in Criminal Appeal No.858 of 2007, would contend
that the findings of the learned Special Judge are that the
prosecution did not prove the fact that AO-1 demanded PW.1 to
pay the bribe of Rs.2,000/- on 09.06.2000 and in pursuance of
such a demand, he further made a demand on the date of trap
and accepted the tainted amount. Therefore, the finding of the
learned Special Judge was that the prosecution did not prove the
allegation of demand of bribe as against AO-1 and AO-2. When
that is the situation, in the absence of a demand, which is sine-
qua-non, for the charges under Sections 7 and 13(1)(d) R/w.
Section 13(2) of the PC Act, the conviction of the appellants under
Section 13(1)(d) R/w. Section 13(2) of the PC Act is wholly un-
sustainable. The defence of AO-1 before the trial Court was that as
he insisted the presence of the original assessee by name M.
Tarakeswari for verification of certain facts, PW.1 bore grudge
against him and falsely implicated him. He would contend that
both the AO-1 and AO-2 set forth a proper defence before the
AVRB,J
Crl.A. Nos.857 & 858/2007
learned Special Judge. During the course of trial, AO.1 put up the
thrusting theory. According to his defence though AO-1 declined to
receive any amount but forcibly the de-facto complainant kept the
amount in the trouser pocket of AO.1. This defence of AO-1 was
not found favour by the learned Special Judge. The law is well
settled that mere recovery of the tainted amount would not absolve
the prosecution from proving the allegations of demand and
acceptance of bribe. Insofar as the contention that PW.1 had
submitted the returns on 30.05.2000 is concerned, it was falsified
by his own documents. When PW.1 submitted the returns on
16.05.2000, it was duly assessed and the assessment order was
passed on 16.05.2000 itself. PW.1 signed the document
acknowledging the receipt of assessment order on 16.05.2000 but
deliberately he carried the order during the post-trap and created
a version as if AO-2 demanded him to sign the order with ante
date on 16.05.2000 instead of 12.06.2000. Such version of PW.1
was highly suspicious. Absolutely, there was no pendency of any
work relating to PW.1 either before AO-1 or before AO-2, according
to the evidence available on record. The very conviction of the
Accused Officers under Section 13(1)(d) R/w. Section 13(2) of the
PC Act, when there were findings that the prosecution did not
prove the demand, is un-sustainable under law and facts. PW.3
AVRB,J
Crl.A. Nos.857 & 858/2007
and PW.4 did not support the case of prosecution with regard to
AO-2. Learned counsel for the appellants in support of his
contentions would rely upon the decisions of the Hon'ble Apex
Court in P. Satyanarayana Murthy v. District Inspector of
Police, State of Andhra Pradesh and another1, State of
Kerala and others v. C.P. Rao2, Sujit Biswas v. State of
Assam3, Punjabrao v. State of Maharashtra4 and B. Jayaraj v.
State of A.P5. Learned counsel would submit that mere recovery
of the tainted amount from AO-1 is not sufficient to establish the
guilt against him and further the learned Special Judge
erroneously applied Section 20 of the PC Act to Section 13(1)(d)
R/w. Section 13(2) of the PC Act and it is also wholly un-
sustainable. With the above submissions, he would contend that
the Appeal is liable to be allowed.
15. Sri A. Hariprasad Reddy, learned counsel, representing Sri
D. Purnachandra Reddy, learned counsel for the Appellant/AO-2
in Criminal Appeal No.857 of 2007, would contend that the tainted
amount was not recovered from the possession of AO-2. AO-2 set
forth a defence theory that when the complainant tried to give an
1 2016 (1) ALT (Crl.)(SC) 160 (FB)
2 2011 (6) SCC 450
3 2013 (3) ALT (Crl.)(SC) 316 (DB)
4 (2002) 10 SCC 371
5 2014 (13) SCC 55
AVRB,J
Crl.A. Nos.857 & 858/2007
amount of Rs.500/- to him, he resisted the act of PW.1 and PW.1
went away and he would submit that there was a possibility for
AO-2 to come into contact with the phenolphthalein powder when
AO-2 warded off the tainted amount and it was not recovered from
his possession. In furtherance of the defence, DW.1 was examined,
who spoke about the conversation between AO-2 and PW.1. The
learned Special Judge on erroneous appreciation of the evidence
on record disbelieved the defence theory. Learned counsel would
submit that AO-2 is also entitled for an acquittal.
16. Smt. A. Gayathri Reddy, learned Standing Counsel-cum-
Special Public Prosecutor for ACB, appearing for the Respondent-
State, would contend that though there is no Appeal filed by the
prosecution with regard to acquittal of the Accused Officers of the
charge under Section 7 of the PC Act, but when this Court is
dealing with the Appeals with regard to Section 13(1)(d) R/w.
Section 13(2) of the PC Act, it has every power to decide as to
whether the evidence on record established the demand which is a
sine-qua-non for the offences under Section 13(1)(d) R/w. Section
13(2) of the PC Act. Though the learned Special Judge made
findings that the prosecution did not prove the allegations of
demand but convicted both the Accused Officers under Section
AVRB,J
Crl.A. Nos.857 & 858/2007
13(1)(d) R/w. Section 13(2) of the PC Act and when the legality of
such a judgment is impugned in these Appeals, this Court can re-
appraise the evidence on record with regard to the allegations of
demand at least in respect of the offences under Section 13(1)(d)
R/w. Section 13(2) of the PC Act is concerned. The tainted amount
of Rs.1,500/- was recovered from the possession of AO-1 and
tainted amount of Rs.500/- was recovered from the possession of
PW.3 and PW.4, who did not support the case of prosecution. The
defence theory set forth by AO-1 and AO-2 is not sustainable.
PW.1 had no necessity to implicate AO-1 and AO-2 falsely. There
was no previous animosity existing between PW.1 and AO-1 at one
hand and AO-1 and AO-2 at the other hand. Though the learned
Special Judge disbelieved the prosecution theory under Section 7
of the PC Act but was inclined to give conviction under Section
13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and AO-2.
Though the State did not prefer any Appeal under Section 7 of the
PC Act but this Court is not debarred from deciding as to whether
the evidence on record would prove the demand so as to constitute
the offence under Section 13(1)(d) R/w. Section 13(2) of the PC
Act. Even without the aid of Section 20 of the PC Act, which
cannot be made applicable to Section 13(1)(d) R/w. Section 13(2)
of the PC Act, the evidence on record would prove the charge
AVRB,J
Crl.A. Nos.857 & 858/2007
under Section 13(1)(d) R/w. Section 13(2) of the PC Act against
AO-1 and AO-2 and further a charge under Section 201 IPC
against AO-2. With the above submissions, learned Standing
Counsel-cum-Special Public Prosecutor would seek to dismiss
both the Appeals.
17. As seen from the report lodged by PW.1 under the cover of
Ex.P-3, the allegations were that he was looking after the affairs of
Queens Bakery and Sweets shop in RTC Complex, Dwarakanagar,
Visakhapatnam having got authorization from his aunt M.
Tarakeswari. When he submitted the returns of his shop on
30.05.2000, he did not receive the assessment order and when he
met AO-1 and asked him to issue the assessment order, he
demanded the bribe of Rs.2,000/- and directed him to pay the
bribe amount on 12.06.2000. This is the sum and substance of
the allegations in Ex.P-3 report.
18. Now, coming to the evidence of PW.1, his evidence in
substance is that he is looking after the Queens Bakery and
Sweets shop in RTC Complex, Visakhapatnam of LW.2. Ex.P-1 is
the authorization, dated 18.09.1996, given to him to look after the
business. On 30.05.2000, he submitted the returns of that
business in the office of DCTO for the assessment year 1999-2000.
AVRB,J
Crl.A. Nos.857 & 858/2007
Ex.P-2 is the made up file in relation to his business. The DCTO at
that time was AO-1. On 09.06.2000 in the evening he met AO-1 in
his office and enquired him about his assessment order in relation
to Queens Bakery and Sweets shop following the returns
submitted by him. He replied that a sum of Rs.2,000/- was to be
paid towards bribe. He expressed his inability to do so. AO-1
threatened him that he will inspect his shop and would not issue
the assessment. He asked him to bring the bribe amount on
12.06.2000. As he was not interested to pay the bribe, he
approached the DSP, ACB and lodged a report under Ex.P-3. DSP,
ACB asked him to come to his office on 12.06.2000 along with the
proposed bribe amount of Rs.2,000/-. On 12.06.2000 at 01:30
p.m. he went to the office of DSP, ACB where he was introduced
with the mediators. Mediators confirmed from him about the
contents of the report lodged by him. He spoke of the pre-trap
events to the effect that he produced Rs.2,000/- before DSP, ACB,
which contains one five hundred rupee note and fifteen one
hundred rupee notes and mediators noted down the serial
numbers in the pre-trap and he revealed that he was having
Rs.1,096/- personal cash, one bunch of keys and one mobile
phone. The DSP, ACB asked him to keep his personal cash and
keys in his left side pant pocket and mobile in his right side pant
AVRB,J
Crl.A. Nos.857 & 858/2007
pocket. DSP, ACB instructed Head Constable 633 to keep wad of
tainted amount of Rs.2,000/- in his left side shirt pocket, which
was applied with phenolphthalein powder. The DSP, ACB further
instructed him to pay the bribe amount only on further demand by
AO-1.
19. His evidence in relation to the post-trap is that when he
proceeded to the IV Floor of Udyoga Bhavan to the office of DCTO
at Suryabagh and met AO-1 with a request to issue assessment
order, AO-1 asked him whether the demanded bribe amount of
Rs.2,000/- was brought or not. He replied in positive. Then, he
asked to pay Rs.1,500/- to him out of Rs.2,000/- and to pay
Rs.500/- to his clerk - B. Apparao (AO-2) and to collect the
assessment order from AO-2 on the same day. Accordingly, he
gave Rs.1,500/- to AO-1 and retained Rs.500/- in the
denomination of five one hundred rupee notes. AO-1 received
Rs.1,500/- with his right hand and counted the same and kept it
in his right side pant pocket. When he went to the Hall, where
AO-2 was seated, and asked AO-2 to issue the assessment order,
he asked him whether the bribe amount was paid or not. He
replied in positive. Then AO-2 questioned him as to whether AO-1
directed him to pay any amount to him and accordingly, he paid
AVRB,J
Crl.A. Nos.857 & 858/2007
Rs.500/- to AO-2, who received the amount of Rs.500/- and put
the same in his zip bag of blue colour. Thereafter, AO-2 issued the
assessment order to him. Ex.P-4 is the assessment order issued to
him by AO-2 at that time. As per the instructions of AO-2, he
signed on the copy of the order as token of receipt i.e., Ex.P-4.
AO-2 asked him to affix his signature and date as 16.05.2000
though it was issued to him on 12.06.2000. Then he told him that
he submitted the returns way back on 30.05.2000 for which AO-2
replied that, DCTO (AO-1) will make some adjustments and he was
asked to affix the date as 16.05.2000. In fact, Ex.P-4 was issued to
him on 12.06.2000. Ex.P-2(a) bears his signature on the copy of
assessment order in Ex.P-2 file. Then, he came out and gave signal
to the ACB officials. The ACB officials rushed there and asked him
to wait outside and, after half an hour, he was asked to enter
inside the office. He narrated the events to the ACB officials.
20. The prosecution examined PW.2, a mediator, who supported
the case of prosecution with regard to the pre-trap and post-trap
events. His evidence insofar as the post-trap concerned is to the
effect that on 12.06.2000 at 04:45 p.m. they received a signal
through SI Baburao. Immediately, they rushed into the office of
AO-1 where PW.1 was present in the corridor. He was instructed
AVRB,J
Crl.A. Nos.857 & 858/2007
to wait there for some time. They entered into the chambers of
AO-1. The DSP, ACB disclosed his identity particulars to AO-1 and
also introduced other mediators to AO-1. On hearing the identity
particulars of the DSP, ACB and other mediators, AO-1 took out
his hand from his right side pant pocket and kept his right hand
to his back. On being asked by the DSP, ACB, AO-1 revealed his
identity particulars and showed the currency notes in his right
hand and on his instructions, AO-1 handed over the currency
notes to M. Prasad - (LW.12), a mediator. When the DSP, ACB got
conducted chemical test to both hand fingers of AO-1, it yielded
positive result. The denomination of the currency notes were
tallied with the pre-trap proceedings. The narration of AO-1 was
incorporated in the post-trap proceedings. The version of PW.1
was also incorporated in post-trap proceedings. The version of
AO-1 was confronted with PW.1. On the basis of the statement
made by PW.1, the DSP, ACB along with other mediators went to
the room of AO-2 and on seeing the ACB officials, AO-2 became
speechless and he started rubbing his hands to the handles of the
chair. The DSP, ACB asked AO-2 to disclose his identity
particulars and accordingly he disclosed his identity particulars.
When the DSP, ACB got conducted chemical test to both hand
fingers of AO-2, it yielded positive result. AO-2 stated that he kept
AVRB,J
Crl.A. Nos.857 & 858/2007
the money in a zip bag and it was kept with a tea bunk owner - K.
Trinadh (LW.3) on hearing about the AO-1 being trapped by the
ACB officials. AO-2 led the raid party to LW.3 and pointed out
LW.3 - tea stall owner as receiver of the zip bag. Statement of LW.3
was accordingly recorded. LW.3 disclosed that he handed over the
zip bag to his wife - K. Padma (LW.4) who was waiting in the
ground floor. Then, they went to LW.4 and brought her back. She
handed over the zip bag to AO-2, who in turn opened the zip bag
and took the tainted amount of Rs.500/- and gave it to the
mediator. The serial numbers therein were tallied with the
numbers mentioned in the pre-trap proceedings. The chemical test
conducted to the inner linings of the zip bag yielded positive
result. The zip bag was also seized by the DSP, ACB, which was
marked as MO.10. The DSP, ACB conducted chemical test to the
right side pant pocket of AO-1 which yielded positive result. The
DSP, ACB examined the version of PW.3 and his wife and it was
incorporated in the post-trap proceedings. He further spoke of the
seizure of records from the possession of AO-1 and AO-2.
21. It is a fact that PW.3 - Tea bunk owner and PW.4 - wife of
PW.3 did not support the case of prosecution. The prosecution got
declared them as hostile. However, during their cross-examination
AVRB,J
Crl.A. Nos.857 & 858/2007
their statements under Exs.P-17 and P-18 were marked by way of
confrontation.
22. Prosecution examined PW.5, the Assistant Commercial Tax
Officer, who testified that AO-1 - Deputy Commercial Tax Officer
and AO-2 - Senior Assistant worked in the DCTO Circle,
Suryabagh Branch, Visakhapatnam. DCTO is empowered to
assess business turnover from rupees two lakhs to ten lakhs.
Sales Tax is exempted for secondary sales with respect to Bakery
and confectionaries. He had the jurisdiction between the Jail Road
and Poorna Market. RTC Complex comes within the jurisdiction of
DCTO, Suryabagh. The assessment under Ex.P-2 has to be filed
on or before 30th April and the assessment order has to be issued
within a period of one month from the date of filing of assessment
by shop keeper. Ex.P-2(a) is dated 16.05.2000. AO did not bring to
his notice about the assessment made by PW.1. On 12.06.2000,
he was in the office of DCTO, Suryabagh, Visakhapatnam. He was
examined by the DSP, ACB, and his statement was recorded in the
post-trap proceedings.
23. PW.6 is the Trap Laying Officer, who spoke of the
registration of FIR on the basis of Ex.P-3 report and he spoke of
AVRB,J
Crl.A. Nos.857 & 858/2007
the pre-trap and post-trap events. His evidence is similar with that
of the evidence of PW.2 - the mediator.
24. The learned defence counsel examined DW.1 before the trial
court and he was mainly examined to speak of the conversation
between AO-2 and PW.1. His evidence in substance is that in the
month of June, 2000, he was in his office at the time of ACB raid
against the Accused Officers. He knows that PW.1 was running
Crown (sic) Bakery in RTC Complex, Visakhapatnam. On the date
of raid at about 04:00 p.m. he went to the seat of AO-2 to collect
white papers and found PW.1 near the table of AO-2. While he was
collecting white papers, he heard that PW.1 was asking AO-2 to
settle his case with the DCTO and also offering him some amount,
for which AO-2 replied to PW.1 that he can settle his matter with
DCTO directly. He went to computer room after collecting white
papers and at the same time PW.1 left the place and went towards
Chambers of AO-1. Half an hour later, while he was in the
computer room, ACB officials called him and other staff members
and he was orally examined by the ACB officials. He can identify
the carriage bag of AO-2 as he used to get carriage in that bag.
MO.10 is the zip bag shown to the witness. He stated that MO.10
AVRB,J
Crl.A. Nos.857 & 858/2007
was not the carriage bag of AO-2 as he never saw MO.10 bag or
similar bag with AO.2.
25. Admittedly, it is a case where the prosecution presented two
occasions where AO-1 was alleged to have demanded PW.1 to pay
the bribe of Rs.2,000/-. First demand was on 09.06.2000 with a
direction to PW.1 to bring the bribe amount on 12.06.2000. The
second demand was on 12.06.2000 during the post-trap to the
effect that AO-1 demanded PW.1 to pay Rs.1,500/- out of
Rs.2,000/- to AO-1 and the rest of Rs.500/- to AO-2 to get the
assessment order. The allegation of demand against AO-2 was on
12.06.2000 during the post trap where he demanded PW.1 to pay
bribe of Rs.500/- and upon payment of the same, he issued the
assessment order. It is a fact that PW.1 spoke of both the
demands i.e., 09.06.2000 and 12.06.2000 against AO-1 and
further demand on 12.06.2000 against AO-2. The findings of the
learned Special Judge were that there was no corroboration to the
evidence of PW.1 with regard to the demand dated 09.06.2000 and
further the demand dated 12.06.2000 and ultimately the findings
of the learned Special Judge were that the prosecution failed to
prove the allegations of demand of bribe against AO-1 and AO-2.
The peculiar features of the judgment further were that the
AVRB,J
Crl.A. Nos.857 & 858/2007
learned Special Judge convicted both the Accused Officers for the
charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act.
26. Proving of demand is a sine-qua-non to establish the guilt
under Section 13(1)(d) R/w. Section 13(2) of the PC Act. As rightly
pointed out by the learned Standing Counsel for the Respondent-
State, it is absolutely within the province of this Court to decide in
both the Appeals which arose against the conviction and sentence
under Section 13(1)(d) R/w. Section 13(2) of the PC Act as to
whether the evidence on record would establish the demand.
Though this Court is handicapped now to deal with the allegations
under Section 7 of the PC Act for want of any Appeal by the
prosecution/State but as the legality of the conviction and
sentence is under challenge in the present Appeals, this Court can
as well re-appraise the evidence on record to decide whether the
evidence on record established the demand, which is a sine-qua-
non for the offence under Section 13(1)(d) R/w. Section 13(2) of the
PC Act.
27. Turning to the decision of Hon'ble Apex Court in P.
Satyanarayana Murthy (1st supra), the Hon'ble Apex Court held
that mere possession and recovery of the currency notes from the
accused, without proof of demand, would not establish the
AVRB,J
Crl.A. Nos.857 & 858/2007
offences under Sections 7 and 13 of the PC Act. Apart from this, in
view of the decision of Hon'ble Apex Court in P. Satyanarayana
Murthy (1st supra), a presumption under Section 20 of the PC Act
cannot be drawn insofar as the charge under Section 13(1)(d) R/w.
Section 13(2) of the PC Act is concerned. It was also laid down in
the decision of the Hon'ble Apex Court in B. Jayaraj (5th supra)
that applicability of Section 20 of the PC Act can only prove the
offence under Section 7 of the PC Act but not under Section
13(1)(d) R/w. Section 13(2) of the PC Act. Needless to point out
here that the learned Special Judge took aid of Section 20 of the
PC Act so as to convict the Accused Officers under Section 13(1)(d)
R/w. Section 13(2) of the PC Act. Apart from this the Hon'ble Apex
Court in Neeraj Dutta v. State (Government of NCT of Delhi)6,
categorically held that Section 20 of the PC Act does not apply to
Section 13(1)(d)(i)(ii) of the PC Act. According to the decision of the
Hon'ble Apex Court in Neeraj Dutta (6th supra), demand is a sine-
qua-non to establish the charge under Section 13(1)(d) R/w.
Section 13(2) of the PC Act.
28. Now, as the legality of the judgment under Section 13(1)(d)
R/w. Section 13(2) of the PC Act is under challenge, I would like to
6 (2022) SCC OnLine SC 1724
AVRB,J
Crl.A. Nos.857 & 858/2007
re-appreciate the evidence on record as to whether the evidence on
record would prove the allegations of demand so as to constitute
the offence under Section 13(1)(d) R/w. Section 13(2) of the PC
Act. With regard to pendency of official favour, the case of the
prosecution is that PW.1 submitted the returns on 30.05.2000 but
AO-1 did not issue the assessment order and he demanded the
bribe on 09.06.2000 as well as on 12.06.2000 and in pursuance of
such demands, PW.1 paid Rs.1,500/- to AO-1 and in pursuance of
the demand of AO-1, he approached AO-2 where he demanded
bribe of Rs.500/- and accordingly he paid Rs.500/- to AO-2. It is
to be noted that corroboration to the testimony of PW.1 can be in
any form. It is a case where the prosecution has come up with a
case that tainted amount of Rs.1,500/- was recovered from AO-1
physically and both the hand fingers of AO-1 and inner linings of
trouser pocket of AO-1 also yielded positive result. There is no
dispute that the tainted amount of Rs.1,500/- was recovered from
the possession of AO-1 and his both hand fingers yielded positive
result and further the inner linings of the right trouser pocket of
AO-1 also yielded positive result. These circumstances corroborate
the evidence of PW.1, in my considered view.
AVRB,J
Crl.A. Nos.857 & 858/2007
29. Coming to the thrusting theory set forth by AO-1 during the
course of cross-examination, PW.1 denied that when he put some
amount on the table of AO-1, AO-1 asked him that he need not
pay any amount and asked him to go to AO-2 to pick up the
assessment order and after some time PW.1 met the AO-1 and
tried to handover the amount and when AO-1 warded off the
attempt of PW.1, he forcibly kept the tainted amount of Rs.1,500/-
into the trouser pocket of AO-1. PW.1 denied such a defence
theory. The defence of AO-2 before PW.1 was that he tried to give
the amount of Rs.500/- and he warded off his attempt and then
PW.1 went away. So, the defence of AO-2 was that when he
warded of the attempt of PW.1 to receive the amount of Rs.500/-,
his hands might have touched the phenolphthalein powder. It is to
be noted that PW.1 testified the demand dated 12.06.2000 against
AO-1 and AO-2 during the course of evidence. It is to be noted that
according to the evidence of PW.5, an assessee under the
Commercial Tax Department was supposed to file the returns on
or before 30th April. The evidence of PW.1 was that he submitted
the returns on 30.05.2000 but he was handed over the
assessment order on 12.06.2000 with ante date. The defence of
Accused Officers was that deliberately PW.1 carried the
assessment order which he received on 16.05.2000 during the
AVRB,J
Crl.A. Nos.857 & 858/2007
post-trap without knowledge of the ACB officials. It is very difficult
to accept such a contention. The evidence of PW.5 regarding the
procedural aspects that the assessment returns were to be
submitted on or before 30th April was not challenged by the
Accused Officers. When that is the situation, it is not
understandable as to how AO-1 could receive the assessment
documents on 16.05.2000. It is quite improbable to assume that
when PW.1 made the assessment application on 16.05.2000, on
the same day both the Accused Officers processed the same. So, it
goes to show that out of innocence or otherwise, PW.1 could not
submit the returns on or before 30.04.2000 but he could submit
the same at the end of May, 2000 but the fact remained is that the
signatures of PW.1 were obtained with antedate as 16.05.2000.
30. The evidence of PW.1 disclosed that he voluntarily intimated
to the DSP, ACB at the time of post-trap about the personal cash
and also mobile phone and the DSP, ACB took precautions to say
that his personal cash was to be kept in another pocket.
Absolutely, PW.1 had no motive at all to file a false case against
the Accused Officers. There was no animosity existing between
PW.1 and AO-1 at one hand and AO-1 and AO-2 at another hand.
When PW.1 had a valid authorization from LW.2 - M. Tarakeswari
AVRB,J
Crl.A. Nos.857 & 858/2007
to look after the business affairs of Queens Bakery and Sweets,
AO-1 had no business to insist for the presence of original
assessee. Absolutely, there was no necessity for AO-1 to insist for
the presence of original assessee. If the presence of original
assessee was required, there was no possibility for AO-1 to cause
issuance of Ex.P-2(a) - assessment order. So, his defence that
when he insisted for the presence of original assessee, he was
falsely implicated cannot stand to any reason. Absolutely, there
were no doubtful circumstances in the evidence of PW.1 to
disbelieve his testimony. The prosecution with consistent evidence
proved the pendency of official favour.
31. The oral evidence of PW.1 with regard to the allegations of
demand had corroboration from other aspects i.e., recovery of the
tainted amount from AO-1 and further recovery of the tainted
amount from PW.4 at the instance of AO-2. Though PW.3 and
PW.4 did not support the case of prosecution, there is evidence of
PW.2, independent mediator, who acted as a mediator for the first
time in ACB trap case that AO-2 during the post-trap proceedings
disclosed that he handed over tainted amount which was kept in
the zip bag to PW.3 and PW.3 disclosed that he handed over the
zip bag to PW.4. PW.2 - the mediator, who acted as a mediator for
AVRB,J
Crl.A. Nos.857 & 858/2007
the first time in ACB trap case, had no reason to depose false. The
evidence of PW.2 and PW.6 - Trap Laying Officer is quite
consistent throughout. So, both hand fingers of AO-2 yielded
positive result when they were subjected to chemical test. In my
considered view, the testimony of PW.1 with regard to his
allegations of demand of bribe against AO-1 and AO-2 had support
from various circumstances referred to above.
32. The findings of the learned Special Judge that the
prosecution did not prove the allegations of demand are not at all
sustainable on facts. It is to be noted that, according to the settled
legal position, proof of demand is a sine-qua-non even to prove the
charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act. As
the very conviction and sentence is impugned in both these
Appeals, this Court has every power to re-appraise the evidence to
decide as to whether the evidence on record would establish the
demand which is a sine-qua-non to prove the offence under Section
13(1)(d) R/w. Section 13(2) of the PC Act. Hence, this Court would
like to differ with the findings of the learned Special Judge that the
prosecution did not prove the allegations of demand. Having given
such a finding, the learned Special Judge bent upon to convict the
Accused Officers under Section 13(1)(d)R/w. Section 13(2) of the
AVRB,J
Crl.A. Nos.857 & 858/2007
PC Act. As the very conviction and sentence is under challenge,
now this Court on re-appraisal of the entire evidence on record
with regard to Section 13(1)(d) R/w. Section 13(2) of the PC Act is
of the considered view that the evidence of PW.1 proved the
allegations demand against AO-1 and AO-2 on the date of trap i.e.,
12.06.2000.
33. Turning to the decision of the Hon'ble Apex Court in Sujit
Biswas (3rd supra), cited by learned defence counsel, this court
admits that a conviction cannot be based on mere surmises and
conjectures or suspicion. As the prosecution in this case
established the charge under Section 13(1)(d) R/w. Section 13(2) of
the PC Act and also under Section 201 IPC, with consistent
evidence, the decision of the Hon'ble Apex Court in Sujit Biswas
(3rd supra), is of no use to the contention of the defence. Turning to
the decision of the Hon'ble Apex Court in Punjabrao (4th supra), it
has no application to the present case on hand as the defence of
both the Accused Officers is not at all tenable. Turning to the
decision of the Hon'ble Apex Court in C.P. Rao (2nd supra), it is a
case where the complainant could not be examined by the
prosecution and in such circumstances, the Hon'ble Apex Court
declined to interfere with the order of acquittal. The facts in C.P.
AVRB,J
Crl.A. Nos.857 & 858/2007
Rao (2nd supra) cannot be made applicable to the present case on
hand as in this case the complainant was examined and fully
supported the case of prosecution.
34. As pointed out, the prosecution did not file any Appeal
challenging the order of acquittal of AO-1 and AO-2 of the charge
under Section 7 of the PC Act. In view of the above reasons, this
Court is of the considered view that the evidence on record
categorically proved the charge under Section 13(1)(d) R/w.
Section 13(2) of the PC Act against AO-1 and AO-2.
35. Turning to the charge under Section 201 IPC against AO-2,
the evidence of PW.2 - the mediator and the evidence of PW.6 -
Trap Laying Officer would establish the fact that on sensing that
ACB trap party rushed into the office of Accused Officers, AO-2
with a deliberate intention, handed over the zip bag to PW.3, who
in turn passed over the same to PW.4. Though PW.3 and PW.4
turned hostile, there is categorical evidence of PW.2 and PW.6 in
this regard. So, prosecution established further that AO-2 with an
intention to screen away the offence under Section 13(1)(d) R/w.
Section 13(2) of the PC Act, handed over the zip bag to PW.3, who
in turn passed over the same to PW.4. Hence, in the considered
AVRB,J
Crl.A. Nos.857 & 858/2007
view of this Court, the evidence on record is sufficient to convict
and sentence the AO-2 for the charge under Section 201 IPC.
36. In the light of the above, I am of the considered view that the
evidence adduced by the prosecution is cogent and believable so
as to sustain the conviction under Section 13(1)(d) R/w. Section
13(2) of the PC Act and also under Section 201 IPC as such there
are no merits in both these Appeals. The points are answered
accordingly.
37. In the result, both these Criminal Appeal are dismissed.
38. The Registry is directed to take steps immediately under
Section 388 Cr.P.C to certify the common judgment of this Court
along with the trial Court record, if any, to the learned III
Additional District and Sessions Judge-cum-Special Judge for
ACB Cases, Visakhapatnam on or before 31.01.2024 and on such
certification, the learned Special Judge shall take necessary steps
to carry out the remaining sentence imposed against the Appellant
in Criminal Appeal No.857 of 2007 i.e., Accused Officer No.2 in
C.C. No.29 of 2001, dated 21.06.2007, and to report compliance to
this Court. A copy of this judgment be placed before the Registrar
AVRB,J
Crl.A. Nos.857 & 858/2007
(Judicial), forthwith, for giving necessary instructions to the
concerned Officers in the Registry.
39. As the Appellant in Criminal Appeal No.858 of 2007 i.e.,
AO-1 is no more, there is no need to take any further steps insofar
as Criminal Appeal No.858 of 2007 is concerned.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 22.01.2024
DSH
