Telangana High Court

Smt.L.Leelavathi Another vs The State Of A.P., Thru A.C.B., ... on 10 August, 2022

Bench: K.Surender

              HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.1213 OF 2008
JUDGMENT:

1. The 1st appellant/Accused Officer(AO1) was convicted for the

offences under Section 7 of the Prevention of Corruption Act, 1988

(for short "the Act of 1988") and sentenced to undergo rigorous

imprisonment for a period of one year and also sentenced to pay

fine of Rs.1,000/-, in default, to undergo simple imprisonment for a

period of three months and also sentenced to undergo rigorous

imprisonment for a period of one year and also sentenced to pay

fine of Rs.1,000/-, in default, to undergo simple imprisonment for a

period of three months for the offence under Section 13(1)(d) r/w

13(2) of the Act of 1988. The 2nd appellant/AO2 was convicted for

the offences under Section 12 of the Prevention of Corruption Act,

1988 and sentenced to undergo rigorous imprisonment for a period

of one year and also sentenced to pay fine of Rs.1,000/-, in default,

to undergo simple imprisonment for a period of three months vide

judgment in CC No.3 of 2004 dated 23.09.2008 passed by the

Additional Special Judge for SPE & ACB Cases at Hyderabad.

Aggrieved by the same, the present appeal is filed.

2. Briefly, the case of the prosecution is that AO1 was working as

Junior Assistant in the office of Mandal Revenue Office at

Hayathnagar. AO2 is a private writer sitting outside the MRO office.

The defacto complainant/ PW1 purchased land and was in need of

pahani copies. On 29.03.2003, P.W.1 went to the MRO office and

submitted stamped application to MRO by enclosing an affidavit.

The MRO while sending the application to AO1 asked P.W.1 to

speak to her. AO1 informed that she should contact her on the

coming Monday after contacting AO2. AO2 informed that an

amount of Rs.3,000/- has to be paid at the rate of Rs.100/- to

Rs.150/- per pahani copy. Only if bribe amount of Rs.1,000/- is

paid, then the work would start. AO2 further informed that if she

did not pay the bribe amount, it will take 15 to 20 days for getting

copy of pahani. As P.W.1 was not willing to give bribe, she

approached the ACB and lodged Ex.P1 complaint at 10.00 a.m.

3. The trap was arranged on the same day. Independent

mediators P.W.2 and another along with DSP-P.W.8 and the

investigating officer-P.W.9 were all part of the trap party. PW.1

produced the bribe amount of Rs.1,000/- and same was recorded in

the pre-trap proceedings Ex.P4. Phenolphthalein and sodium

carbonate solution test was demonstrated by the constables during

the said proceedings. Pre-trap proceedings commenced at 1.30 p.m

and concluded at 2.30 p.m.

4. The trap party proceeded to the office of MRO and entered into

the office at 4.20 p.m. At about 4.30 p.m, P.W.1 came out of the

office and relayed pre-arranged signal indicating that the bribe

amount was accepted. The trap party went into the office and found

AO1. Before questioning AO1, P.W.1 informed the trap party that

the bribe amount was accepted by AO2, who was sitting in the

record room. She also informed about AO1 that she was in the

MROs office busy with work and she wanted AO2 to accept the

bribe amount. The DSP called for AO1 and asked to open the record

room and inside record room three persons were present attending

office work. The DSP then asked for AO2 and questioned whether

he demanded and accepted an amount of Rs.1,000/- from P.W.1.

He stated that the said amount was received on behalf of AO1.

Sodium Carbonate solution was prepared and AO2 was asked to dip

his fingers in the said solution and when he did so, the solution

turned into pink colour.

5. AO2 produced bribe amount from his pant pocket. When

questioned by the DSP, AO1 stated that she does not know

anything about the demand of bribe by AO2. She further stated that

due to work load, AO2 and two others were working and their

assistance was taken to do the office work. The concerned file was

seized and post trap proceedings were concluded at 9.30 p.m in the

evening. After investigation, charge sheet was laid against AOs.1

and 2.

6. The prosecution in all examined P.Ws.1 to 9 and marked

Exs.P1 to P11. D.Ws.1 and 2 were examined in defence and Exs.D1

to D4 were marked as defence exhibits.

7. Learned counsel for AO1 submits that there is no mention of

demand either in the complaint Ex.P1 or on the date of trap.

Admittedly, AO1 joined duty 15 days prior to the trap. It is further

admitted fact that some private persons were taken to work in the

MRO office. It is the case of AO1 that the trap was handy work of

one Chandrasekhar, who was inimically disposed to AO1. The said

Chandrasekhar was the person who met MRO on 25.02.2003 on

behalf of PW.1 and same was admitted by P.W.4, MRO. P.W.4

further admitted that P.W.3, AO2 and one Narsing were the three

persons who were working in the MRO office, who were taken as

servants by 'Batabandi' system. PW.1 admitted that AO1 did not

demand any amount from her. She deposed as follows: "It is true I

have not specifically mentioned in the complaint that AO1 demanded

me."

8. Learned counsel for AO1 further submitted that the land did

not belong to PW.1, as such, the question of applying for pahani

copies did not arise. That the ACB had laid trap without making

any preliminary enquiries and complaint was allegedly lodged at

10.00 a.m and trap was laid within three hours i.e., at 1.00 p.m.

There is no endorsement of any preliminary enquiry being

conducted regarding the antecedents of AO1 or the correctness of

the complaint. In the said circumstances, when demand is not

proved and also on the basis of record P.W.1 was not the owner of

any property, the appeal has to be allowed and conviction set aside.

9. On behalf of AO2, learned counsel submits that during the

course of Section 313 Cr.P.C examination, it is the defence of AO2

that the amount was kept by PW1 at the window and for the reason

of returning to P.W.1 later, he kept in his pant pocket.

10. Learned counsel for the appellants relied upon the judgment

in the case of i) Punjabrao v. State of Maharashtra (2002) 10

Supreme Court Cases 371, wherein the Hon ble Supreme Court

held that defence can be established by preponderance of

probability and if any explanation is offered during Section 313

Cr.P.C examination and same is found to be reasonable, it cannot

be refused only merely on the ground that the said explanation was

not given when the amount was seized. He also relied on the

judgment in the case of ii) P.Satyanarayana Murthy v. District

Inspector of Police, State of Andhra Pradesh ((2015) 10 Supreme

Court Cases 152 and argued that unless demand is proved, though

there is recovery, it is of no consequence. Similar proposition was

laid in N.Vijay Kumar v. State of Tamil Nadu (2021) 3 Supreme

Court Cases 687.

11. Learned Public Prosecutor submits that though there is

recovery from AO2, the said amount was accepted by AO2 only at

the instance of AO1. It is common in the MRO office that such

persons are engaged to collect money and in the present case, the

services of AO2 were taken to collect money from P.W.1. He further

submits that it is not necessary that P.W.1 should be the owner of

the land to take pahani copies. Any one intending to purchase the

land or shows any interest in the land can always seek certified

copies of pahanies. In the present case, P.W.1 narrates that there

was sale transaction with regard to the said land and for the said

purpose, pahani copies were sought. The person Chandrasekhar

who had accompanied P.W.1 was only for the purpose of helping

PW.1 to redress her grievance before the ACB and said

Chandrasekhar has nothing to do with the complaint of P.W.1 and

he has no reason to falsely implicate AO1. In support of his

contention, he relied on the following judgments. i) Madhukar

Bhaskar Rao Joshi vs. State of Maharashtra1, the Hon'ble

Supreme Court held that in any trial for the offence punishable

under Section 7 and Section 13(1)(d), if it is proved that the accused

(2000 (8) SCC 571)

has accepted or obtained or has an agreed to accept or attempted to

obtain for himself or for any other person, any gratification, it shall

be presumed that unless the contrary is proved that the said

amount was towards illegal gratification; iii) In Girija Prasad (dead)

by L.Rs. v. State of M.P2, the Hon'ble Supreme Court upheld an

order of the High Court reversing the acquittal judgment of the trial

Court on the ground of the accused failing to discharge his burden;

iv) Chaturdas Bhagwandas Patel v. State of Gujarat3; v)

Dhanvantrai Balwantrai Desai v. State of Maharashtra4,

Constitutional Bench judgment of the Supreme Court held that

once it is shown that the amount received by any accused is

towards illegal gratification, presumption has to be raised.

12. As seen from the complaint, P.W.1 did not state that AO1

demanded the bribe amount. She also admitted in her cross-

examination that AO1 did not demand the amount, however, she

stated that demand by AO2 was assumed to be the demand made

by AO1. AO1 during the course of second mediator report at the

(2007) 7 Supreme Court Cases 625

(1976) 3 Supreme Court Cases 46

AIR 1964 SC 575

earliest point of time also specifically stated that she did not

demand any amount from P.W.1. In the circumstances, the

demand of bribe amount by AO1 cannot be said to have been

proved by the prosecution.

13. P.W.4, who is the MRO stated that one Chandrasekhar had

submitted the said application on 25.02.2003 and also alleged that

AO1 had encroached the private land in Sy.No.201 situated at

Sahebnagar and requested to take necessary action against her.

The presence of the said Chandraseker is also spoken to by P.W.2,

the mediator stating that he accompanied P.W.1 to the DSP office

on the day of trap.

14. D.W.2 who is the Deputy Tahsildar stated that P.W.1 was not

the pattadar or the possessor of the lands in Sy.No.568 of

Peddamberpet village. It is not made clear as to why P.W.1 required

pahani copies of the lands which do not belongs to her. Though

there is no embargo of asking for pahini copies of any land,

however, she specifically claimed in her complaint that she is the

owner of the said land in Sy.No.568 of Peddamberpet village having

purchased the same from one D.Satyanarayana, who is her elder

brother. However, the said document is not produced by the

prosecution to prove that whatever P.W.1 stated regarding the

ownership is correct. Admittedly, PW.1 has made a false assertion

in the complaint stating that she is the owner of the land. When the

said circumstance is viewed vis-à-vis., the presence of one

Chandraseker who was inimically disposed to AO1 at the time of

trap admittedly, the defence of false implication cannot be ruled

out. In the said circumstances, when the prosecution has failed to

prove the demand of AO1 and defence of false implication is

probable, the recovery from AO2 is of no consequence.

15. AO2 is prosecuted for the offence under Section 12 of the Act

of 1988 and convicted under the said provision. For the sake of

convenience, Section 12 of the Act is extracted:

"12. Punishment for abetment of offences defined in section 7 or 11.--Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."

The offence under Section 12 of the Act is made out when an

offence under Section 7 or 11 of the Act is abetted. Abetment is

defined under Section 107 of IPC, which reads as follows:

"107. Abetment of a thing.--A person abets the doing of a thing, who--

(First) -- Instigates any person to do that thing; or

(Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

16. An offence of abetment is when a person instigates any person

to do a thing or engages with or more persons to do such things or

intentionally aids in doing of any such illegal act or omission is

alleged to have abetted the said offence. In the present case when it

is not proved that AO1 has either demanded or accepted the

amount, the question of abetting the offence under Section 7 or 11

of the Act of 1988 does not arise. The allegations against AO2 may

attract section 8 or 9 of the Act. However no charge is framed under

section 8 or 9 as such no finding is given.

17. In the result, the judgment of trial Court in CC No.30 of 2004

dated 23.09.2008 is set aside and the accused are acquitted. Since

the appellants are on bail, their bail bonds stand cancelled.