Telangana High Court

Sri. Muthyalu, vs The State Of A.P., on 10 August, 2022

Bench: K.Surender

          THE HON'BLE SRI JUSTICE K.SURENDER

     CRIMINAL APPEAL Nos.1115, 1155 & 1157 OF 2007

COMMON JUDGMENT:

1.

These Criminal Appeals 1115, 1155 and 1157 of 2007 are

filed by Accused Nos.2, 3 and 1 respectively, aggrieved by the

conviction recorded by the Additional Special Judge for SPE &

ACB cases, City Civil Court at Hyderabad, in C.C.No.16/2003.

2. Since all the three accused filed appeals challenging their

conviction in the very same case i.e.C.C.Nol16/2003, all the

three appeals are heard together and disposed off by this

common Judgment.

3. Accused No.1 (A.O.1) is the Excise Inspector, Accused No.2

(A.O.2) is the Excise H.E., and Accused No.3 (A.O.3) is a private

person and the Proprietor of Srinivasa Kirana Stores. Accused

Nos.1 & 2 were convicted for the offence under Section 7 and

13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for

short 'P.C.Act')and Accused No.3 was convicted for the offence

under Section 12 of Prevention of Corruption Act, 1988.

4. PW1 is the defacto complainant. He lodged a complaint on

15.03.2001 stating that A.O.1 is the Excise Inspector of P & E

Station, Kalwakurthy, who registered a case against the driver of

his auto on 25.10.2000 and seized his auto on the allegation of

transporting illicit liquor. On 01.03.2001, PW2 who is the wife of

PW1 filed application before the Deputy Commissioner of

Prohibition and Excise, Mahaboobnagar, and the Deputy

Commissioner ordered release of the Auto. Both PWs.1 and 2

met A.O.1 on 03.03.2001 and requested to release the Auto.

A.O.1 asked PWs.1 and 2 to furnish the particulars of ownership

of the Auto and also Rs.50,000/- as security. Apart from the

security for release of the Auto, PW1 demanded an amount of

Rs.4,000/- towards bribe. A.O.1 insisted that unless bribe

amount of Rs.4,000/- is paid, he would not release the Auto and

will not accept less than Rs.2,000/- for releasing the Auto, to be

paid within two or three days. Aggrieved by the said demand, a

complaint Ex.P1 was made on 15.03.2001.

5. The D.S.P having received the complaint registered the

same under Section 7 & 11 of the Prevention of Corruption Act,

1988, and arranged a trap. The DSP sent for PW3 and another

independent mediator to witness the trap proceedings. The trap

was arranged on the same day and the trap party members

including the mediators, PWs.1, PW2, the D.S.P.-PW8 and also

the Inspector-PW9 formed part of the trap party. Pre-trap

proceedings under Ex.P3 were drafted in the A.C.B. office. The

independent mediators having questioned PW1 about the

demand and also witnessing the phenolphthalein sodium

carbonate test, drafted Ex.P3-pre trap proceedings. The said

proceedings took place between 1.30 p.m to 2.10 p.m.

6. After concluding Ex.P3 proceedings, the trap party went to

Kalvakurthy to the Prohibition and Excise station where A.O.1

was the Inspector. Both PWs.1 and 2 went into the office and

around 6.30 p.m., PWs.1 and 2 came out and gave the pre-

arranged signal informing the trap party that the bribe amount

was accepted. The trap party entered the office and found A.O.1

and A.O.2. The D.S.P. questioned A.O.1 whether he demanded

any bribe amount from PW.1, AO1 informed that he did not

make any demand and was found shivering. The D.S.P. secured

water to conduct sodium carbonate solution test and when AO1

hands were tested, the color of the solution remained

unchanged. Then the D.S.P, questioned PW1 as to what

transpired after he entered into the office around 6.00 p.m. PW1

informed that on his entry into the office, he made a request to

A.O.1 to release the Auto. Then A.O.1 demanded the bribe

amount, upon which PW1 informed that the bribe amount was

with his wife PW2 who was waiting outside. Then A.O.1 called

A.O.2 and instructed him to prepare the acknowledgment

receipt. The third accused (A.O.3) who was an independent

person was called by A.O.2 to sign on the receipt identifying

PW2, for returning the Auto. After the said signatures, the third

accused went away and A.O.1 asked the amount and instructed

PW1 to handover the said amount to A.O.2. After A.O.2 received

the amount he opened the almirah and returned the documents

of the vehicle to PW1. After receiving the said documents PW1

came out and gave pre arranged signal. On persistent

questioning by DSP, A.O.1 informed that the amount was given

to A.O.2. When A.O.2 was asked he informed that on the

instructions of A.O.1 he received the said amount and after

receiving the amount he noticed some officials rushing towards

excise office and suspecting something had gone wrong handed

over the amount to the third accused (A.O.3). The trap party

members then followed A.O.2 to the shop of A.O.3 which was two

furlongs away from the excise station. A.O.3 then handed over

the said bribe amount to trap party. After concluding the

proceedings the mediators drafted Ex.P9-post trap proceedings.

The said proceedings were concluded at around 1 a.m. on

16.03.2001. In the proceedings the concerned file was also seized

by the A.C.B.

7. The A.C.B. conducted investigation and arrayed all the

three as accused, A.O.1 being the Inspector who demanded the

amount, A.O.2 for receiving the amount on the trap day and

A.O.3 was also implicated for the reason of keeping the bribe

amount handed over by A.O.2.

8. The counsel for A.O.1 would submit that there was no proof

of demand which was established by the prosecution. In fact as

stated by PW1 that there was a demand on 08.03.2001, the

same is falsified by the evidence of the defence witnesses DW1

who is the practicing advocate in the High Court and he stated

that A.O.1 attended the High Court on 01.03.2001, 03.03.2001,

05.03.2001, 07.03.2001 and 12.03.2001, for the said reason

when A.O.1 was at Hyderabad attending proceedings at the High

Court the question of demanding bribe from PW1 does not arise.

Prosecution's failure to prove the demand by A.O.1 and recovery

from A.O.3 cannot be made basis to convict A.O.1 for the offence

under Section 7 and 13 (1)(d) of the Act. Learned Counsel further

submits that on the date of trap DWs.2, 3, 4 were present in the

office and the procedure was followed as per the directions of the

Commissioner and the vehicle was returned after obtaining the

security amount. On the date of trap the hands of A.O.1 did not

turn positive to the sodium carbonate solution and admittedly as

per the Post Trap Proceedings-Ex.P9, A.O.1 had denied receiving

any amount from PWs.1 and 2.

9. He relied upon the Judgment of the Supreme Court in

Ayyasami v. State of Tamilnadu1 wherein the Honourable

Supreme Court held that when the chemical test did not prove

positive and the amount was seized from the table drawer, the

accused was acquitted.

AIR 1992 Supreme Court 644

10. On similar lines counsel for A.O.1 relied upon the

Judgment of this Court in Kalukuri Lingaiah v. State2; in

P.Satyanarayana Murthy v. District Inspector of Police,

State of Andhra Pradesh and another3 wherein it was held

that unless demand is proved mere recovery is of no

consequence.

11. The arguments of learned counsel for A.O.2 and the

learned counsel for A.O.3 are on similar lines. Learned counsel

for A.O.2 submitted that even according to the complaint Ex.P1

there was never any demand made by the A.O.2 and for the

reason of there being no demand the question of conviction

under P.C.Act does not arise. Even according to the prosecution

witnesses, on the day of trap, the amount was received at the

instance of A.O.1

12. Learned Counsel for A.O.3 submits that he is a private

person and has nothing to do with the demand or acceptance of

bribe by A.O.1 or A.O.2 and that he is running a Kirana shop

2001(2)ALD(Crl.)779 (A.P)

(2015) 10 Supreme court Cases 152

and A.O.2 was his customer. In the process of giving provisions

on credit, A.O.2 was making payments in installments, for the

reason of recovery of the amount which was taken towards sale

of provisions from his Kirana sop, he cannot be mulcted with

criminal liability for abetment under the P.C.Act.

13. The factum of seizure of the Auto of PW1, the direction to

release it on security and giving back the documents on the trap

day are not disputed by A.Os.1 and 2. However, A.O.1's case is

that since his hands had not turned positive to the test of

sodium carbonate solution and since the amount was seized in

the shop of third accused which was two furlongs away from his

office, it cannot be said that the prosecution has proved its case

for demand and acceptance which is required to convict under

Section 7 of the P.C.Act.

14. Admittedly, A.O.2's name was not mentioned in the

complaint. Even according to PWs.1 and 2 they have never seen

A.O.2 except on the date of trap. It is apparent from the evidence

of PWs.1 and 2 and also proceedings recorded in the post trap

mediators panchanama-Ex.P9 that it was A.O.1 who demanded

the amount and asked PW1 to pass on the said amount to A.O.2.

Admittedly there was no demand made by A.O.2 for the said

amount. The entire conversation regarding bribe amount was

between PW1 and A.O.1. PWs.1 and 2 were in the office of A.O.1

for half an hour from 6.00 to 6.30 p.m. on the trap date. After

A.O.1 asking PW1 regarding bribe amount and when PW1

informed that the amount was with PW2 who was sitting outside

office, the process of returning of Auto was undertaken. The

documents were signed and for want of a person to identify PW2,

the third accused (A.O.3) was called who signed on the receipt

and went away.

15. In the entire transaction that transpired between 6.00 to

6.30 p.m. there was never any demand that was made by A.O.2.

Being the subordinate of A.O.1 and on his instructions A.O.2

kept the money with him. It is not the case of the prosecution

that A.O.1 or PW1 informed A.O.2 that it was towards the

process of the documents for returning the Auto as directed by

the Deputy Commissioner, Excise. However, it cannot be said

that A.O.2 may not be having knowledge of the amount received

from PW2 to be bribe amount. The bribe amount was handled by

AO2 at the instance of AO1. However having such knowledge,

without there being any of the acts of accepting or demanding

the bribe amount, the same will not attract the provision under

Section 7 of P.C.Act. It is apparent that the amount was not

handled by A.O.2 pursuant to any demand or any understanding

for taking bribe in between A.O.1 and A.O.2 from PW1. In the

said circumstances, it cannot be said that the ingredients of

Sec.7 are satisfied to convict A.O.2

16. A.O.3 was convicted for the offence under Section 12 of

P.C.Act, 1988. For the sake of convenience, Section 12 of the Act

is extracted hereunder:

"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."

17. The prosecution case is that A.O.2 handed over the said

bribe amount to A.O.3 in the shop. It is not the case that A.O.3

knew that the said amount was either bribe amount or he had

knowledge about any demand of bribe by the A.O.1 from PW1.

18 A.O.3 accepting the amount from A.O.2 at his Kirana Shop

will not under any circumstances amount to abetment as defined

under Section 12 of P.C.Act.

19. Abetment is defined under Section 107 of IPC.

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.

20. Unless it is shown that a person instigates a person to do

anything or engages with some other person to do such thing in

pursuance of a conspiracy or intentionally aids by doing such act

is said to have abetted the offence.

22. DW1 was examined to state that on different dates A.O.1

had attended the High Court. Though such statement is made

the distance between Kalvakurthy and Hyderabad is around two

hours by road. When the timing of meeting is not specifically

stated to rule out the possibility of meeting, it cannot be said

that demand is not proved by the prosecution.

23. For the foregoing discussion, the offence under Section 7

and 13(1)(d) read with 13(2) of the P.C.Act, 1988 is not proved