Smt. D.Seethamahalakshmi. vs The State Through Inspector, Acb, ...
2022 Latest Caselaw 4026 Tel

            HONOURABLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.118 of 2007


JUDGMENT:

1. The appellant/Accused officer(AO) is convicted for the

offence under Section 7 and sentenced to undergo rigorous

imprisonment for a period of one year and to pay fine of

Rs.1,500/-, in default, to undergo simple imprisonment for a

period of three months for the offence under Section 7 of the

Prevention of Corruption Act, 1988 (for short 'the Act of 1988')

and further convicted for the offence under Section 13(1)(d)(i)

& (ii) r/w Section 13(2) of the Act of 1988 and sentenced to

undergo rigorous imprisonment for a period of one year and to

pay fine of Rs.1,500/-, in default, to undergo simple

imprisonment for a period of three months vide judgment in

Calendar Case No.16 of 2002 dated 12.01.2007 passed by the

Additional Special Judge for SPE & ACB Cases, City Civil

Court, Hyderabad. Aggrieved by the same, present appeal is

filed.

2. P.W.1 filed a complaint before the ACB stating that he

was running a Fair Price Shop at Kapra. Every month the

allotted quota of rice, sugar, kerosene and oil will be sold and

entries would made in the sales register. For allotment of next

month quota coupons of sales and sales register have to be

shown to the checking inspector. The Checking Inspector, who

is the AO was causing inconvenience in registering the sales

certificate and sales register. P.W.1 was asked to pay Rs.500/-

every month for certifying the sales register and demanded

total of Rs.1,500/- to be paid for the past three months. The

said demand was made on 3rd April, 2001 and again on 6th

April, 2001. P.W.1 went to the office at Uppal and asked for

April month's sales register, then the Accused Officer replied

that if Rs.1,500/- is paid, she would certify the sales register,

otherwise she will not certify the said register. Aggrieved by

the said demand, complaint was filed before the ACB on

07.04.2001 under Ex.P1.

3. The DSP P.W.8 arranged a trap on 09.04.2007 afternoon.

Accordingly, P.W.1 went to the DSP office on the said day. Pre-

trap proceedings Ex.P10 was prepared in the presence of

independent mediators and after concluding Ex.P10 at 3.40

p.m, the trap party proceeded to the office of the accused

officer at Uppal. PW1 entered into office, came out and relayed

the prearranged signal as instructed by DSP. On receiving

signal from P.W.1, the trap party entered into room of the

accused officer and conducted test on her hands and both the

hands of the accused officer turned positive. Then the DSP

asked the accused officer to produce the amount, for which

accused officer refused stating that she had not received any

amount. The DSP asked to rinse her hands in sodium

carbonate solution, which turned into pink colour, which is

the proof of accepting the tainted currency. But the accused

officer was adamant and argued that she has not received any

amount. The DSP called Rangaiah (PW.4), who was the Head

of the office and at his instance, the accused officer took the

trap party into the adjacent record room and the tainted

amount was found on the trunk box, from where the amount

was recovered by DSP.

4. The learned counsel for the appellant submits that no

work was pending with the accused officer and the register

was already signed. P.W.2, who is the mediator who

accompanied P.W.1 into the office stated that "in my presence

the accused officer did not take any bribe nor she accepted any

amount from P.W.1". For the said reason and when the amount

was recovered from the room in the open trunk box, it cannot

be said that the accused officer had demanded and accepted

the amount of bribe. He also relied on the judgments; i)

K.Shanthamma v. The State of Telangana1 the Hon'ble

Supreme Court held that proof of demand of bribe is sine qua

non for establishing an offence under Section 7 of the Act of

1988; ii) S.Shankar v. State, ACB, Karimnagar Range2, this

Court held that presumption under Section 20 of the Act of

1988 cannot be drawn unless prima facie evidence is found

regarding the demand and acceptance of bribe; iii) Ganga

2002 LiveLaw(SC) 192

2022 (1) ALD (Crl.)109(TS)

Kumar Srivastava v. State of Bihar3, wherein the Hon'ble

Supreme Court held that respective independent witnesses

have to be secured by the ACB to give credibility to the

allegation of demand and acceptance. He further submits that

the evidence is circumstantial in nature and all the

circumstances have to be proved beyond reasonable doubt,

failing no reliance can be placed on the prosecution case.

Since prosecution failed to prove that there was any pending

work with the accused officer and also for the reason of

demand not being proved, the accused officer is entitled to be

acquitted.

5. On the other hand, learned Special Public Prosecutor

submits that at the instance of the accused officer, money was

recovered from room. Further, only upon stating that P.W.1

had brought amount then the concerned registers were signed

by the accused officer. In support of his contentions, he relied

on the judgment reported in the cases of: i) State of U.P v.

2005 Law Suit(SC) 971

Zakaullah4, wherein the Hon'ble Supreme Court held that the

testimony of complainant cannot be rejected outright only for

the reason of demand not being heard by the independent

witness.

6. According to the second mediator's report Ex.P12, she

was standing in the record room near the table of one attender

Sri Vittalaiah, who was examined as D.W.2. The said witness

stated that the certification in the sales register was already

done and it was collected by the ACB. He further deposed that

when ACB officials came into the office, the accused officer

was standing near his table and looking into the stamp

register. The ACB officials came into the office and thereafter

asked him to go away from the room and he did not find any

amount that was on Ashok Kumar's trunk from which the

amount was allegedly recovered.

7. The prosecution has examined PWs.1 and 2 to prove the

demand by the accused officer. However, on the day of trap,

(1998) 1 Supreme Court Cases 557

P.W.2 refused to acknowledge that he has heard the accused

officer demanding money from P.W.1.

8. P.W.1 stated that the accused officer asked whether he

has brought the amount, however, PW.1 did not hand over the

amount to the accused officer according to PW1. However the

accused officer asked PW.1 to take April month's register to

the attender and get it stamped. D.W.2, attender Vitalaiah

stamped on the register and the accused officer put her initials

and thereafter she went inside the A.S.O's room and returned

from the room and stood at the seat of the Superintendent.

After some time, Superintendent came to his seat and the

accused officer spoke with Superintendent and thereafter, the

accused officer handed over the register to him and

accordingly, P.W.1, went to Vittalaiah in the next room and got

stamped on the register. Then the accused officer followed

P.W.1 and asked him to pay the amount, as such, P.W.1 took

the amount and gave it to her. Accordingly, he came out and

gave pre-arranged signal.

9. The case of P.W.1 is that when the accused officer asked

whether the amount was brought, P.W.1 did not give amount

to the accused officer nor offered it to her. It is not the case of

P.W.1 that after demand, the accused officer asked P.W.1 to

keep money with him and that she would collect it later.

Admittedly, the accused officer had put her initial and she

went into the A.S.O's room and thereafter, she had

conversation with the Superintendent. At no point of time, the

said amount was taken by the accused officer. Such conduct

is not explained by the prosecution. Admittedly, when the

demand was made, neither PW.1 offered the said amount nor

the accused officer has taken the same, however, the case is

that the accused officer followed P.W.1 and again asked for the

amount. In the back ground of the amount being recovered

when found on the trunk box, in which room D.W.2 Vittalaiah

was sitting, raises any amount of doubt vis-a-vis., the conduct

of P.W.1 in not handing over the amount and the accused

officer denying receiving the amount from P.W.1. Even

according to the second mediator's report, the said attender

Vittalaiah was sitting in the record room where the amount

was found. Strangely, the said Vittalaiah though a crucial

witness to the prosecution was not examined, though cited as

a witness. However he was examined in defence as D.W.2.

10. The said sequence of events; i) though demand was made

money was not passed on; ii) PW.2 mediator not hearing any

demand that was made, though according to P.W.1, she had

demanded twice; iii) attender Vittalaiah was admittedly in the

room where the amount was found but given up by the

prosecution; iv) unusual conduct of the accused as projected

by the prosecution regarding not accepting the money when

demanded.

11. In the facts and circumstances, the prosecution has

failed to prove the factum of demand by accused officer. The

money was also recovered from the top of trunk box in the

record room which is suspicious for the reasons discussed

above. Admittedly, the accused officer had denied demanding

any amount. In the said circumstances of the prosecution

case, it cannot be said that there was demand by the accused

officer. When once the demand is not proved by the

prosecution, mere recovery of the notes is of no consequence.

12. In the facts and circumstances, for the reason of the

prosecution failing to prove the case beyond reasonable doubt

and failure to prove the demand, the conviction recorded by

the trial Court is liable to be set aside.

13. In the result, the conviction and sentence recorded

against the accused officer vide impugned judgment in CC

No.16 of 2002 dated 12.01.2007 is set aside and the accused

is acquitted. Since, the accused is on bail, her bail bonds

stand cancelled.

Criminal Appeal is allowed.

________________

K.SURENDER, J Date: 03.08.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.118 of 2007

Date: 03.08.2022

kvs