Telangana High Court
Sri P. Lakshmana Chary, vs The State Of Andhra Pradesh, on 17 August, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.1600 OF 2007
Between:
P.Lakshmana Chary. ... Appellant
And
The State, ACB, CIU, Hyderabad,
Rep. by Special Public Prosecutor
For ACB Cases, High Court,
Hyderabad. ... Respondent
DATE OF JUDGMENT PRONOUNCED: 17.08.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No. 1600 of 2007
% Dated 17.08.2022
# P.Lakshmana Chary. ... Appellant
And
$ The State, ACB, CIU, Hyderabad,
Rep. by Special Public Prosecutor
For ACB Cases, High Court,
Hyderabad ...Respondent
! Counsel for the Appellant: A.Divya
^ Counsel for the Respondent: Sri Vidyasagar Rao,
Spl. Public Prosecutor.
>HEAD NOTE:
? Cases referred
1
(2016) 12 SCC 150
2 (1996) 11 SCC 720
3
(2017) 8 SCC 136
4 (2000) 5 SCC 21
5 (2014) 13 SCC 55
6 (2009) 3 SCC 779
7 (2021) 3 SCC 687
8 (2016) 1 SCC 713
9 (1977) 3 SCC 352
10 (2012) 13 SCC 552
11(2009) 6 SCC 444
12 2015 (10) SCC 152
13 (2022 SCC OnLine SC 213
14 (2019) 19 Supreme Court Cases 87
15 AIR 1976 SC 1497
16
(1998) 1 Supreme Court Cases 557
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1600 OF 2007
JUDGMENT:
1. The appellant is convicted under Section 7 of the
Prevention of Corruption Act, 1988 (for short "the Act"),
Section 13(1)(d) r/w Section 13(2) and 13(1)(d) r/w Section
13(2) of the Act and sentenced to undergo rigorous
imprisonment for a period of six months, one year and one
year respectively vide judgment in CC No.23 of 2006, dated
31.10.2007 passed by the Additional Special Judge for SPE &
ACB Cases, City Civil Court, Hyderabad. Aggrieved by the
same, present appeal is filed.
2. The appellant/accused officer was working as Junior
Assistant in the A.P.Housing Board. P.W.1 was allotted a
house in LIG category under Hire Purchase and paid an
amount of Rs.30,000/- and also fulfilled the requisite
formalities. The appellant allegedly asked for bribe of Rs.300/-
for giving the possession letter. P.W.1 was asked to come on
28.03.2000, 29.03.2000 and also on the date of complaint i.e.,
on 30.03.2000. On all the three days, the appellant allegedly
demanded an amount of Rs.300/-, failing which allotment
letter will not be given. Aggrieved by the said demand,
complaint was lodged on 30.03.2000 with the DSP, P.W.8.
P.W.8, after conducting preliminary enquiry, arranged a trap
on the same day.
3. The trap party with the independent mediators, P.W.2
and another person, DSP- P.Ws.8 and IO-PW10, formed trap
party. Pre-trap proceedings were conducted under Ex.P9 by
concluding all formalities, which concluded at 2.30 p.m. The
trap party proceeded to Kukatpally Housing Board Office at
3.30 p.m. Both the complainant, P.W.1 and the
accompanying witness namely P.Ganapathy Reddy (not
examined during trial) went inside the office of the appellant.
Five minutes after they entered the office, the said Ganapathy
Reddy, accompanying witness came out of the office and stood
at the gate. At 4.25 p.m, complainant came out of the office
and gave pre-arranged signal. Thereafter, the trap-party
entered inside and the DSP got the hands of the appellant
tested, which turned positive for sodium carbonate solution
test. When questioned, the appellant pulled out the right side
drawer of his table, in which tainted currency of Rs.300/- was
found. Accordingly, the concerned file was seized and
thereafter, investigation was handed over to P.W.10, who after
completion of investigation, filed charge sheet. Initially charges
under section 7 and 13(1)(d) R/W 13(2) of P.C.Act were
framed. However charge under section 13(1)(a) R/W 13(2) was
framed after evidence of witnesses commenced.
4. Learned counsel for the appellant submits that the case
of the prosecution is highly doubtful for the reason of the
accompanying witness Ganapathy Reddy in spite of
instructions by DSP, was not with the complainant and came
out of the office within five minutes. The amount was
recovered from the table drawer, which was without any lock.
D.W.1, who was present in the office sitting opposite the
appellant stated that there was no demand of bribe by
appellant. In the said circumstances, when demand is not
proved mere acceptance is of no consequence and the question
of raising the presumption under Section 20 of the Act is
clearly erroneous.
5. Learned counsel further submits that it is not mentioned
in the mediators report as to the time of the testing which was
done and when the said information is not found in the
mediator's report, adverse inference has to be drawn. Testing
is a crucial issue and not stating the exact details, the
prosecution has to fail. The prosecution has later come up
with the evidence of other witnesses P.Ws.2, 3, 4 and 7, who
were examined to state that the appellant was a habitual
offender and charge under Section 3(1)(a) was also framed on
10.11.2005, though the charge under Sections 7 and 13(1)(d)
were framed on 23.02.2004. The prosecution has come up
with the version which cannot be accepted and when the very
demand by the appellant is not proved and the amount was
recovered from the table drawer, the appellant is entitled to
acquittal.
6. In support of her contentions, counsel relied on the
following judgments; i) V.Sejappa v. State1 and argued that
mere recovery is not sufficient to point the guilt of the accused
and that since the complainant is interested in success of the
trap, his evidence has to be looked into independently to
corroborate his version; ii) M.K.Harshan v. State of Kerala2
iii) Mukhtiar Singh v. State of Punjab3 and argued that the
version of accused is probable that anyone entering the room
could access the table drawer and put anything and that the
evidence of complainant has no corroboration; iv) Meena v.
State of Maharashtra4 and argued that the material witnesses
were withheld by the prosecution which adversely affects the
prosecution story; v) B.Jayaraj v. State of A.P5; vi)
C.M.Girish Babu v. CBI, Cochin, High Court of Kerala6; vii)
(2016) 12 SCC 150
(1996) 11 SCC 720
(2017) 8 SCC 136
(2000) 5 SCC 21
(2014) 13 SCC 55
(2009) 3 SCC 779
N.Vijayakumar v. State of Tamil Nadu7 and argued that
when there is no demand, acceptance of amount is of no
consequence, as such, presumption under Section 20 of the
Act cannot be drawn; viii) N.Sukanna v. State of A.P8; ix)
Hari Dev Sharma v. State (Delhi Administration)9; x)
Rakesh Kapoor v. State of H.P10; xi) State of Punjab v.
Sohan Singh11 and argued that no independent witness was
examined to support the prosecution version of demand case
as such the case fails; xii) P.Satyanarayana Murthy v. DI
Police, State of A.P12 and argued that suspicion however
grave, cannot replace the proof and that the prosecution
cannot afford its case on 'may be true' or 'should be' but 'must
be true'. xiii) K.Shanthamma v. State of Telangana13,
wherein the Hon'ble Supreme Court held that when the
(2021) 3 SCC 687
(2016) 1 SCC 713
(1977) 3 SCC 352
(2012) 13 SCC 552
(2009) 6 SCC 444
2015 (10) SCC 152
(2022 SCC OnLine SC 213
amount was recovered from the table drawer and once
demand is not proved, which is sine qua non proof, an offence
under Section 7 of the Act is not proved, the prosecution fails.
7. On the other hand, learned Special Public Prosecutor
submits that P.W.4, though tried to help the appellant, it is of
no avail. The recovery is at the instance of the appellant from
his table drawer, for which reason, the presumption has to be
raised. The official work of handing over the possession letter
was also pending with the appellant on the date of trap and
after receipt of the bribe amount, the said letter was issued to
P.W.1, which itself goes to show that official favour was
pending. In support of his contentions, he relied on the
judgment in the case of State of Telangana v. Managipet
alias Mangipet Sarveshwar Reddy14, Supreme Court of India,
wherein their Lordships have held that preliminary enquiry
was not necessary; ii) Chaturdas Bhagwandas Patel v. State of
Gujarat15 to state that when official favour is pending and the
amount is recovered, the presumption would be raised. He
(2019) 19 Supreme Court Cases 87
AIR 1976 SC 1497
also relied on State of U.P. v. Zakiullah16, wherein their
Lordships have held that the evidence of bribe giver cannot be
rejected on the ground that he is an interested witness.
Further, the trap party, which forms the DSP and independent
mediator, cannot be treated as interested witnesses. He
further argued that the mediator coming out of the office is of
no consequence and it might have been for the reason of
appellant getting alert due to his presence. In the said
circumstances, he argued that the conviction cannot be
interfered with.
8. The case of the appellant is that when the appellant had
gone inside for the purpose of obtaining signatures on the
possession letter, the amount has been placed in the table
drawer. Thereafter, the complainant shook hands with him,
for which reason, test on his hands turned positive. One
glaring infirmity in the case of the prosecution remains
unexplained, when specific instructions were given to one
Ganapathy Reddy, who was an independent mediator to
witness what transpires between P.W.1 and the appellant, he
(1998) 1 Supreme Court Cases 557
comes out of office within five minutes of entering into the
office. Such conduct is not explained by the prosecution
plausibly.
9. The very reason for asking the independent witness to
accompany complainant is to lend credibility to the version of
complainant-P.W.1 regarding the allegation of bribe made by
P.W.1 and to see what transpires between the accused and
complainant regarding bribe. Further, though the trap party
entered into the office at 3.40 p.m, PW1 came out only after 45
minutes at 4.25 p.m. The said time of 45 minutes is also not
explained except stating that when P.W.1 entered into the
office, the amount was asked by the appellant and when he
gives it to him, it was kept in the right side drawer of the table.
There is no reason why P.W.1 would wait for 40 minutes when
the amount was immediately demanded and accepted by the
appellant. The specific instructions of the DSP was to relay the
signal immediately after the acceptance. The independent
witness Ganapathy Reddy violated the directions of the DSP
and so also the P.W.1. In spite of specific instructions, P.W.1
did not relay the signal immediately after the accepting the
amount and waited nearly 35 to 40 minutes in the office room
and the said Ganapathy Reddy, contrary to the instructions,
comes out of the office and stays outside the office. Both the
said circumstances give rise to a reasonable conclusion that
the version of the appellant, that when he went inside the
room to meet Assistant Estate Officer (PW4), the amount must
have been planted is correct.
10. The AEO was examined as P.W.4. She stated that when
she was in the office on the trap day, she signed on the
possession letter of P.W.1 and she also signed on the handing
over letter of P.W.2. According to P.W.4, the file was signed in
between 3.45 and 4.00 p.m. P.W.1 stated that the appellant
accepted the amount and placed in his table drawer and
thereafter, the possession letter was handed over to him. What
transpired in between 4.00 p.m to 4.25 p.m is again not
explained by the prosecution. The circumstances cumulatively
suggest that P.W.1 was waiting for a chance to plant the
amount in the table drawer of the appellant.
11. D.W.1, who worked as Works Inspector in the said office
stated that he has seen P.W.1 placing some currency notes in
the drawer when the appellant went into the office room of
AEO. Further, according to the evidence of D.W.1, it was
stated by the appellant, when questioned by DSP that the
amount must have been planted and he never demanded the
said amount. However, the said version is not reflected in the
post trap proceedings.
12. Following circumstances make the prosecution case
doubtful; i) The independent mediator, though directed comes
out of the office within five minutes after entering inside; ii)
Though the alleged bribe amount was handed over by P.W.1 to
the appellant immediately after entering into the office, he
stayed there for 45 minutes, which is not explained; iii)
Though the possession letter was ready by 4.00 p.m, still
P.W.1 stayed inside the office; iv) Both P.W.1 and Ganapathy
Reddy acted contrary to the directions of DSP; v) The crucial
witness Ganapathy Reddy was not examined by the
prosecution; vi) D.W.1, who was working in the room of the
appellant stated that P.W.1 had planted the amount.
Apparently there was no demand by appellant and the bribe
amount was planted.
13. According to P.W.1, he met the appellant on 29th and 30th
of March, 2000. It is not explained when the demand was
made at Kukatpaly office on 30.03.2000 and from there, how
P.W.1 travelled to ACB office at Mojamzahi Market, which is
nearly one hour to one and half hour during morning hours
and filed complaint at 10.00 in the ACB office.
14. The appellant was also convicted for the offence under
Section 13(1)(a) r/w 13(2) of the Act. The said conviction was
based on the evidence of P.W.2, 3 and P.W.7, who deposed
that they gave bribe amount of Rs.150/-, Rs.150/- and
Rs.200/- respectively to the accused officer on the date of
trap. According to the post trap proceedings, an amount of
Rs.350/- apart from the Rs.300/- trap amount was found in
the table drawer. If the amount allegedly collected on the trap
day was Rs.500/- from P.Ws.2, 3 and 7, the said amount was
not recovered and the witnesses failed to specify or identify
Rs.350/- recovered from the table drawer on the trap day as
the amount given by them. There are no separate complaints
by any of the witnesses. The work of all the said witnesses
was complete and there is no reason why P.W.2, 3 and 7 were
waiting in the office. In the post trap proceedings, it was
mentioned that part of the amount collected by the accused
officer was given to P.W.4. However, there is no recovery of the
amount from P.W.4 nor P.W.4 is made an accused in the
present case. In the said circumstances, it cannot be said that
the accused officer was an habitual offender to convict under
Section 13(1)(a) of the Act.
15. For all the above reasons, this Court is of the considered
view that the prosecution has failed to prove its case beyond
reasonable doubt.
16. In the result, the judgment in CC No.23 of 2006, dated
31.10.2007 is set aside and the appellant is acquitted. Since
the appellant is on bail, his bail bonds stand cancelled.
15. Accordingly, the Criminal Appeal is allowed.
__________________
K.SURENDER, J
Date:17.08.2022
Note: LR copy to be marked
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1600 OF 2007
Date: 17.08.2022.
kvs
