Andhra Pradesh High Court - Amravati
Sri Hari Naik, vs State Of A.P., Rep By Spl. Pp., on 2 January, 2024
Author: K. Sreenivasa Reddy
Bench: K. Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Appeal No.404 of 2009
JUDGMENT:
This Criminal Appeal has been preferred against the judgment
dated 28.03.2009 passed in CC No.17 of 2004 by the learned Special
Judge for ACB Cases, Visakhapatnam.
2. The sole accused officer is the appellant herein. He was tried
for the offences punishable under Sections 7 and 13(1)(d) read with
13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act').
By his judgment dated 28.03.2009, the learned Special Judge found
the accused officer guilty of the offences under Sections 7 and 13(2)
read with 13(1)(d) of the Act and, accordingly convicted and sentenced
him to undergo rigorous imprisonment for a period of six (6) months
and also to pay fine of Rs.500/- (Rupees Five Hundred only), in default
to suffer simple imprisonment for one month for the offence under
Section 7 of the Act, and sentenced to undergo rigorous imprisonment
for a period of one year and also to pay fine of Rs.1,000/- (Rupees One
Thousand only), in default to suffer simple imprisonment for two (2)
months, for the offence under Section 13 (1) (d) punishable under
Section 13 (2) of the Act. Both the substantive sentences were
directed to run concurrently and MO.3 (tainted amount of Rs.6,000/-)
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was ordered to be returned to PW.3 and MOs.1 and 4 to 8 were
ordered to be destroyed after expiry of appeal time.
3. The substance of the charges against the accused officer is that
he, being a public servant within the meaning of Section 2(c) of the
Act, working as Building Inspector in the Municipal Corporation,
Visakhapatnam, on 26.12.2003, at about 14.00 hours, in the residential
premises of the house bearing D.No.20-211/5/5, Kothapalem,
Gopalapatnam, belonging to PW.3, demanded and accepted a sum of
Rs.6,000/- from PW.3 as gratification other than legal remuneration for
showing official favour for not initiating action against PW.3 and not
harassing him in construction of house in Kothapalem village,
Gopalapatnam without any approved plan and thereby committed an
offence punishable under Section 7 of the Act. In the course of same
transaction, the accused officer, being a public servant, obtained
pecuniary advantage to an extent of Rs.6,000/- from PW.3 and thereby
committed the offence punishable under Section 13(1)(d) read with
13(2) of the Act.
4. Case of the prosecution, in brief, is that, the father of the de
facto complainant (PW.3) purchased house site admeasuring 300 sq.
yards at Kothapalem, Gopalapatnam in the year 1996 in the name of
his children i.e. the de facto complainant, his sister and brother. In the
year 1997, they constructed a terraced building in the house site
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without sanctioned plan. On 22.11.2003, the accused officer inspected
the building of the de facto complainant and asked him to come to his
office as the building was constructed without approved plan.
Accordingly, on 24.11.2003, the de facto complainant went to the
office and met the accused officer, who advised the de facto
complainant to draw the house building plan with the help of licensed
Surveyor. Later, on 11.12.2003, the accused officer went to the house
of the de facto complainant and informed that an amount of
Rs.40,000/- was required to approve the plan and instead of that he
demanded bribe amount of Rs.20,000/- with an assurance that he
could manage the other officials in the Corporation. On bargaining,
the accused officer reduced the bribe amount from Rs.20,000/- to
Rs.6,000/- and asked the de facto complainant to keep the said
amount ready by 26.12.2003. As the de facto complainant was not
willing to pay the said bribe amount, he approached the ACB Police on
25.11.2003 and filed Ex.P6 written complaint. On receipt of the said
complaint, PW.6, the then Deputy Superintendent of Police, ACB
registered a case in Crime No.19/RC-WLR/2003 of ACB Police Station,
Visakhapatnam and prepared pre-trap proceedings Ex.P9. On
26.12.2003, at about 14.00 hours, the accused officer came to the
house of the de facto complainant, demanded the bribe amount and
accepted the tainted currency notes of Rs.6,000/- from him as illegal
remuneration for not initiating action against his building. Meanwhile,
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the trap laying party reached there and conducted Sodium Carbonate
solution test on both hand fingers of the accused officer, which proved
positive. The accused officer produced tainted amount from his left
side shirt pocket and the chemical test conducted on the inner lining of
the shirt pocket of the accused officer also proved positive. PW.7 the
Inspector of Police, ACB, Visakhapatnam took up further investigation
and after obtaining prosecution sanction orders and completion of
investigation, he filed charge sheet against the accused officer for the
aforesaid offences.
5. On appearance of accused officer, copies of documents were
furnished to him as required under Section 207 Cr.P.C. and thereafter,
charges under Sections 7 and 13(1)(d) read with 13(2) of the Act were
framed against the accused officer, read over the contents and
explained to him in Telugu, for which he pleaded not guilty and
claimed to be tried.
6. In support of its case, the prosecution examined PWs.1 to 7 and
got marked Exs.P1 to P13 and MOs 1 to 8.
7. After closure of the prosecution evidence, accused officer was
examined under Section 313 Cr.P.C., explaining the incriminating
material found against him in the evidence of prosecution witnesses,
for which he denied. He reported no defence witnesses on his behalf,
except marking Ex.D1 receipt. He filed his written statement, under
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Section 243(1) Cr.P.C., by denying the alleged demand and acceptance
of tainted amount as bribe and by stating as follows.
"He worked as Town Planning and Building
Overseer (Building Inspector) for Ward No.44 of
Municipal Corporation, Visakhapatnam. His duty is to
check the unauthorized constructions in his jurisdiction
and he used to visit newly constructed buildings in
Ward No.44. He found the house bearing No.19-207 in
S.No.105/2 constructed without permission and
sanction plan and came to know that the building is
belongs to PW.3. He advised PW.3 twice to apply
building permission plan. He failed to apply building
plan as such he informed that notice under Section 461
of HMC Act would be issued for demolition of
unauthorized construction. Thereupon, PW.3 requested
him for same time to apply for building plan, but PW.3
did not apply for building plan in spite of passing time.
On 26.12.2003 at 2.00 pm he was passing through the
house of PW.3 on Motor Cycle. PW.3 clapped and
called him to his residence, he parked the Motor Cycle
in front of the house and entered into the portion of the
house of PW.3. PW.3 gave an amount of Rs.6,000/- to
him informing that the said amount is repaying towards
part of outstanding loan amount of Rs.10,000/- which
was borrowed from him in the month of September,
2003. He counted the amount and kept the amount in
the shirt pocket. PW.3 informed him that the balance
amount of Rs.4,000/- will be paid near future. He left
the premises of the house and came near to his Motor
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Cycle and about to start the Motor Cycle meanwhile
some unidentified officials came and caught hold his
both hands and took him to the house of PW.3. He
was questioned about the received amount and he
narrated that he received the amount towards part
payment of borrowed loan amount. The ACB officials
conducted chemical test on his both hand fingers but
he do not know the results of solution he was arrested
by the ACB Police."
"It is further submitted in the written statement
that one D.V. Satyanarayana is the friend of him and on
the request of said Satyanarayana he provided
Rs.10,000/- to PW.3 and PW.3 acknowledged the
received loan of Rs.10,000/- and acknowledgment was
given to Satyanarayana. He collected Ex.D1
acknowledgment from Satyanarayana. Subsequently,
he came to know that borrower Manoj Kumar is PW.3
who is the owner of house bearing No.19-207. PW.3
anticipated that he will issue notice under Section 461
of HMC Act for demolition of building, as such false
complaint is made and false trap is arranged. It is
further submitted that Ex.P5 is prosecution sanction
order is invalid."
8. The learned Special Judge, on appreciation of entire oral and
documentary evidence on record, found the accused officer guilty of
the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act
and, accordingly, convicted and sentenced him as aforesaid. Against
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the said conviction and sentence, the present Criminal Appeal has been
preferred.
9. Learned counsel appearing on behalf of the appellant/accused
officer submits that the evidence of prosecution witnesses is
inconsistent with each other. According to him, PW.3, the decoy, gave
a complete go-by to what has been deposed by him in his chief-
examination. The learned Special Judge failed to see that the amount
was towards repayment of loan given by the accused officer to one
Satyanarayana, who in turn gave the money to PW.3. He strenuously
contended that Ex.D1 is the receipt issued by PW.3 towards loan taken
by him and he admitted his signature on Ex.D1 and basing on the
same, learned counsel contended that the learned Special Judge erred
in convicting the accused officer.
10. On the other hand, Smt. A. Gayatri Reddy, learned Standing
Counsel for ACB-cum-Special Public Prosecutor, strenuously contended
that the loan theory propounded by the accused officer is an
afterthought and the same has been brought into existence at a
belated stage. She submits that if really the amount has been
borrowed from the accused officer through D.V. Satyanarayna and the
same has been paid to PW.3, nothing stopped the accused officer in
getting the said D.V. Satyanarayana examined on his behalf, but no
effort has been made by the accused officer in doing so. Apart from
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the same, it is the version of the ACB officials that on seeing them the
accused officer ran away from the place of offence and ACB officials
caught hold of him by chasing. If the theory propounded by the
accused officer with regard to loan is true, there is no reason as to why
the accused officer has to run away from the scene of offence on
seeing the ACB officials. Learned Special Public Prosecutor, on the
aforesaid grounds, contended that the learned Special Judge is right in
convicting the accused officer, which calls for no interference by this
Court.
11. Heard both sides.
12. The point that arises for consideration is whether the
prosecution has proved the guilt of the accused officer beyond all
reasonable doubt for the charges leveled against him.
13. The prosecution case is that the accused officer was working as
Building Inspector in Visakhapatnam Municipal Corporation on the date
of the trap. The Visakhapatnam Municipal Corporation is a public office
and the accused officer comes within the meaning of public servant
under Section 2(c) of the Act. PW.1 is the Assistant City Planner. He
speaks about the duties of the Town Planning Building Overseer
(accused officer) and issuance of Ex.P1 notice and handing over of
made-up file Ex.P2 to the Investigating Officer.
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14. PW.2 is the Director, Town and Country Planning and he speaks
that after verifying the report and material papers submitted by the
ACB police, he issued Ex.P5 prosecution sanction proceedings to
prosecute the accused officer.
15. PW.3 is the de facto complainant. His evidence is about the
demand and acceptance of bribe amount by the accused officer. He
states that on 22.11.2003, the accused officer came to his house and
enquired with regard to sanctioned plan of the building. Thereafter,
the accused officer went away by informing him to meet him in the
office. On 24.11.2003, PW.3 went to the Municipal office and met the
accused officer. The accused officer instructed him to get the house
plan prepared with the licensed Surveyor and thereafter plan would be
approved by the office. In the month of December, 2003, the accused
officer came to his house and enquired about the preparation of house
plan. He replied that no house plan was prepared. Thereafter, the
accused officer informed him that Rs.40,000/- is required to prepare
the plan and asked him to pay Rs.20,000/-, so that he would manage
in the office. Thereafter, the said bribe amount was reduced to
Rs.10,000/- and further to Rs.6,000/-. The accused officer further
informed PW.3 that unless he pays the amount of Rs.6,000/-, he would
continue to harass him and he would take steps to dismantle the
house. In connection with that, the accused officer also shouted
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against him, due to which he approached the ACB Police and filed a
written complaint Ex.P6.
16. PW.4 is the Mason by profession. He did not support the
prosecution case and he was treated as hostile by the prosecution.
17. PW.5 is the mediator. He concurs with the version of PW.3 and
speaks about the pre-trap and post-trap proceedings. According to
him, he attested the pre-trap and post-trap proceedings Ex.P9 and
Ex.P12 respectively.
18. PW.6 is the Deputy Superintendent of Police, ACB,
Visakhapatnam. He registered a case in Crime No.19/RC/WLR/2003 of
ACB Police Station, Visakhapatnam, based on the complaint given by
PW.3. He conducted pre-trap and post-trap proceedings and laid the
trap. Thereafter, PW.6 recovered the tainted amount of Rs.6,000/-
from the shirt pocket of accused officer. On conducting chemical test,
both the hand fingers and the inner lining of shirt pocket of the
accused officer turned positive. PW.6 prepared rough sketch of the
scene of offence i.e. Ex.P10, and seized Ex.P11- identity card of the
accused officer and thereafter he arrested the accused officer. Later,
PW.7 took up further investigation.
19. PW.7, Inspector of Police, ACB, Visakhapatnam, examined the
witnesses and recorded their statements and on receipt of relevant
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documents from the office and prosecution sanction orders, he filed
charge sheet against the accused officer.
20. On a perusal of the entire material on record goes to show that
there is no dispute with regard to the fact that the tainted amount of
Rs.6,000/- was recovered from the possession of the accused officer.
The contention of the learned counsel appearing on behalf of the
appellant/accused officer is that the amount that was recovered from
the accused officer is a loan amount received from PW.3. The theory
of loan amount has been culled out at a belated stage, wherein the
accused officer has come up with a theory that he paid an amount of
Rs.10,000/- to one Satyanarayana, who in turn paid the said amount to
PW.3 in order to construct a compound wall around the house of PW.3.
In connection with that, it is elicited in the evidence of PW.3 that on
receiving the amount from D.V. Satyanarayana, PW.3 executed the
acknowledgment Ex.D1. The acknowledgment dated 26.09.2003 was
confronted to PW.3 by the defence counsel. The witness identified his
signature on the said acknowledgment. Even accepting the said
version, the acknowledgment shows to the extent that the money was
received by PW.3 from one Satyanarayana. Except that, there is
nothing to show in the acknowledgment that the money was taken
from the accused officer by Satyanarayana. It is true that PW.3
received money from Satyanarayana and in connection with that he
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signed on the acknowledgment Ex.D1, and PW.3 does not dispute with
regard to his signature on the said acknowledgment. At a belated
stage, during the evidence, the loan theory has been culled out in such
a way that the amount of Rs.10,000/- was given by the accused officer
to Satyanarayana in order to pay the same to PW.3. If really such is
the situation, there is no reason as to why the said Satyanarayana has
not been examined at least on behalf of the accused officer. No such
attempt has been made by the accused officer to prove his loan
theory. Except stating that the amount was borrowed by
Satyanarayana from the accused officer and paid to PW.3, there is no
other proof forthcoming in order to prove the theory of loan payment.
PW.3 stated in his cross-examination that in the month of December
2003 he came to know that the name Hari Naik mentioned in Ex.D1
and the accused officer are one and the same. In the second week of
December 2003, the accused officer demanded the amount pertains to
amount covered under Ex.D1. PW.3 has categorically stated that he
did not repay the borrowed amount under Ex.D1 till date. Even
accepting the said theory, PW.3 has consistently stated that the
accused officer has made a demand of Rs.40,000/- in getting the
building plan approved. Twice, the accused officer went to the house
of PW.3 in making the aforesaid demand. On negotiations, the
demanded amount was reduced from Rs.40,000/- to Rs.20,000/- and
to Rs.10,000/-. When PW.3 expressed his inability to pay the said
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amount, it was further reduced to Rs.6,000/- and the accused officer
has categorically stated that until and unless the amount of Rs.6,000/-
has been paid, he would continue harassing PW.3. If really the
amount was paid to PW.3 through Satyanarayana, the question of
demanding an amount of Rs.40,000/- and reducing it to Rs.6,000/-
would not arise.
21. Apart from the same, on the date of trap, the accused officer
was present in the house of PW.3 and when the said amount was
accepted, ACB officials entered into the house of PW.3. Both PWs.5
and 6 categorically stated that on seeing them, the accused officer ran
away from the place and he was caught at a distance of 100 yards
from the scene of offence. If really, the loan theory propounded by
the accused officer is true, there is no reason as to why the accused
officer ran away from the place. The evidence of PW.3 before the
Court is that he does not know the accused officer at the time of
execution of Ex.D1. The said Ex.D1 was introduced for the first time
during the cross-examination of PW.3 and the same was confronted to
him. The chief examination of PW.3 was recorded on 20.01.2009 after
5.00 pm and cross-examination was deferred to next day and PW.3
was cross-examined on 21.01.2009. It shows that taking advantage of
one day gap, the loan theory has been introduced. The defence could
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not examine D.V. Satyanarayana through whom amount was received
by PW.3 during construction of compound wall.
22. The statement of PW.3 was recorded under Section 164 Cr.P.C.
by the Magistrate and PW.3 admitted his signature on Section 164
Cr.P.C. statement. Neither in the previous statement nor in the
complaint nor in the statement given before the Magistrate under
Section 164 Cr.P.C., PW.3 disclosed about Ex.D1 and borrowing of
amount from accused officer through Satyanarayana. However, the
evidence of PW.3 is clear that without knowing the person from whom
Satyanarayana procured the amount, he executed Ex.D1
acknowledging the amount from Satyanarayana. Apparently, Ex.D1
would not take away the case of the prosecution and would not
destroy the evidence of PW.3 which is corroborated by the evidence of
PWs.5 and 6.
23. Learned counsel for the appellant has relied upon a decision
reported in Suraj Mal v. the State (Delhi Administration)1,
wherein the Hon'ble Supreme Court observed that where witnesses
make two inconsistent statements in their evidence either at one stage
or at two stages, the testimony of such witnesses becomes unreliable
and unworthy of credence and in the absence of special circumstances
no conviction can be based on the evidence of such witnesses.
1979 AIR (SC) 1408 : 1979 CrLJ 1087: 1979 (4) SCC 725.
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24. In the above referred case, the appellant was falsely implicated
and on a perusal of facts of that case goes to show that nothing was
recovered from the possession of the appellant and there is no
evidence of demand of bribe. On that note, it was held that where
witnesses make two inconsistent statements in their evidence either at
one stage or at two stages, the testimony of such witnesses becomes
unreliable and unworthy of credence and in the absence of special
circumstances i.e. with regard to non-recovery of money and
absolutely no payment made by the decoy witness, the Hon'ble Apex
Court came to a conclusion that in the absence of special
circumstances no conviction can be passed on such evidence.
25. But, in the present case on hand, the evidence of PW.3 is
consistent that there is demand by the accused officer on two
occasions prior to the date of trap and the demand has been reduced
on negotiations from Rs.40,000/- to Rs.6,000/- and on the date of
incident, PW.3 paid the amount on demand made by the accused
officer. Thereafter, on the pre-arranged signal given by PW.3, the
police officials rushed to the scene of offence. On seeing them, the
accused officer ran away from the scene of offence, which goes to
show that the accused officer, in a perplex state, tried to skulk away
from the scene of offence. At the cost of repetition, if really the
accused officer had taken the borrowed amount from PW.3, there was
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no necessity for him to run away from the place of offence. The
amount accepted by the accused officer has been recovered from his
shirt pocket by PW.6. PWs.5 and 6 have consistently stated to that
extent. The only hinge crocks up to the extent that PW.3 stated that
the accused officer has not run away, but he was on his motor cycle
kicking the rod to start the vehicle. This minor inconsistency would not
go to the root of the case. What has to be seen in the aforesaid
offences is whether there is any demand on the date of offence and
whether the amount has been accepted or not and in pursuant to that
whether the said amount has been recovered from the possession of
the accused officer or not. Admittedly, going by the evidence of PW.3
which is corroborated by the evidence of PWs.5 and 6, apparently on
the face of it, the bribe amount was accepted on demand made by the
accused officer and the same was recovered from his shirt pocket.
26. Learned counsel for the appellant also relied upon a decision
reported in State of Kerala v. C.P. Rao2, wherein the Hon'ble
Supreme Court held thus.
"In the background of these facts, especially the
non- examination of CW 1, was found very crucial by the
High Court. The High Court has referred to the decision
of this Court in Panalal Damodar Rathi Vs. State of
Maharashtra, (1979(4) SCC 526) wherein a Three-Judge
(2011) 6 SCC 450
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Bench of this Court held that when there was no
corroboration of testimony of the complainant regarding
the demand of bribe by the accused, it has to be
accepted that the version of the complainant is not
corroborated and, therefore, the evidence of the
complainant cannot be relied on............."
27. In the aforesaid judgment relied upon by the learned counsel
for the appellant, it was held that when there was no corroboration of
the complainant regarding the demand of bribe by the accused, it has
to be accepted that the version of the complainant is not corroborated
and, therefore, the evidence of the complainant cannot be relied on.
28. Coming to the case on hand, apparently, on the date of incident
and prior to that, accused officer made a demand of bribe amount and
the version of PW.3 is consistent in his chief-examination and as well in
the cross-examination. His evidence has not been shattered by the
defence in connection with demand of money. It is pertinent to
mention here that no suggestion was made to PW.3 by the defence to
the extent that no demand has been made by the accused officer. In
the absence of that and when the version given by PW.3 is consistent,
the same cannot be brushed aside. It is also pertinent to mention here
that on the date of alleged incident i.e. on 26.12.2003, at about 14.00
hours, the accused officer went to the house of the de facto
complainant, demanded the bribe amount and accepted the tainted
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currency notes of Rs.6,000/- from him as illegal remuneration for not
initiating action against his building. Meanwhile, the trap laying party
reached there and conducted Sodium Carbonate solution test on both
hand fingers of the accused officer, which proved positive. The
accused officer produced tainted amount from his left side shirt pocket
and the chemical test conducted on the inner lining of the shirt pocket
of the accused officer also proved positive. In view of the same, the
aforesaid rulings submitted by the learned counsel for the appellant are
not applicable to the present facts and circumstances of the case.
29. In view of the aforesaid reasons, I am of the considered opinion
that the learned Special Judge, on proper appreciation of the entire
oral and documentary evidence on record and taking all the above
aspects into consideration, has rightly found the accused officer guilty
of the charges leveled against him and, accordingly, convicted and
sentenced him as aforesaid and I see no reasons to interfere with the
same. The Criminal Appeal is devoid of merit and the same is liable to
be dismissed.
30. Accordingly, the Criminal Appeal is dismissed confirming the
judgment dated 28.03.2009 passed in CC No.17 of 2004 by the learned
Special Judge for ACB Cases, Visakhapatnam. The accused officer is
directed to surrender before the trial Court to serve the remaining
sentence, if any.
SRK, J
As a sequel thereto, the miscellaneous applications, if any,
pending in this Criminal Appeal shall stand closed.
_____________________
K. SREENIVASA REDDY, J
Date:02.01.2024
Nsr/DRK
SRK, J
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Appeal No.404 of 2009
02.01.2024
Nsr/DRK
