B.Jagajeevan Rao, vs State Of A.P., Rep By Spl. Pp.,
2022 Latest Caselaw 4157 Tel

        jkHIGH COURT FOR THE STATE OF TELANGANA
                           AT HYDERABAD
                                 *****

                 Criminal Appeal No.371 OF 2007

Between:

M/s.B.Jagajeevan Rao.                             ... Appellant

                           And
State of AP, rep. by Inspector of Police,
Spl.Public Prosecutor,
ACB, Nizamabad Range                                 ... 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          Yes/No
      see the Judgments?

 2    Whether the copies of judgment
      may be marked to Law                  Yes/No
      Reporters/Journals

 3    Whether Their
      Ladyship/Lordship wish to see         Yes/No
      the fair copy of the Judgment?



                                                _________________
                                                K.SURENDER, J
                                             2


                    * THE HON'BLE SRI JUSTICE K.SURENDER
                                 + CRL.A. No. 371 of 2007

% Dated 17.08.2022

# B.Jagajeevan Rao.                                         ... Appellant

                                          And

$ State of AP, rep. by Inspector of Police,
Spl.Public Prosecutor,
ACB, Nizamabad Range.                                         ...Respondent


! Counsel for the Appellant: Sri D.V.Sitharam Murthy, Sr.Counsel
                                     Appearing for Sri V.Prabhakar Rao




^ Counsel for the Respondent: Sri T.L.Nayan Kumar, Special

                                         Public Prosecutor for ACB.
>HEAD NOTE:

? Cases referred
1
    Criminal Appeal No.261 of 2022

2 2021 (2) ALT (CRI.) 1 (S.B)

3(1984) 1 Supreme Court Cases 446

4 (1998) 1 Supreme Court Cases 557

5 (1976) 3 Supreme Court Cases 46

6 (2000) 8 Supreme Court Cases 571

7 (1978) 4 Supreme Court Cases 65

8 (1984) 1 Supreme Court Cases 254
                                  3


               HON'BLE SRI JUSTICE K.SURENDER

                   CRIMINAL APPEAL No.371 OF 2007
JUDGMENT:

1. The appellant/AO was convicted for the offences under

Sections 7 and 13(1)(d) r/w Section 13(2) 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 under both

counts vide judgment in CC No.34 of 2002 dated 23.03.2007

passed by the Principal Special Judge for SPE & ACB Cases, City

Civil Court at Hyderabad. Aggrieved by the same, the present

appeal is filed.

2. Briefly, the case of the prosecution is that the appellant was

working as Sub Treasury Officer, Bodhan, Nizamabad District.

P.W.1, who worked as Telugu Pandit in Government Boys School,

Bodhan was entitled for Special Grade promotion arrears of

Rs.31,887/- and pay fixation arrears of Rs.23,980/-. The Head

Master of the school prepared bills and forwarded them on

07.08.2001 to the STO office. Since the bills were not passed,

P.W.1/complainant went to the STO office on 16.08.2001 and met

the appellant and asked about his pending bills. Appellant

demanded Rs.5,000/- as bribe to get his work done. Again P.W.1

met the appellant on 23.08.2001 and the appellant insisted the

bribe of Rs.5,000/- to be paid, but ultimately reduced to Rs.4,000/.

3. P.W.1 went to the ACB office on the same day evening and on

the instructions of DSP, gave a written complaint Ex.P1. The trap

was arranged on the next day i.e., on 24.08.2001. Around 7.00 a.m,

the complainant/PW.1, DSP, independent mediators and others

gathered in the office of ACB and after following the due

procedures, pre-trap proceedings were prepared. The DSP

instructed that the amount should be handed over to the appellant

only on his demand. All the trap party members went to the office of

the appellant. P.W.1/complainant and PW.2/accompanying

witness went inside the office and met the appellant, who

demanded the bribe amount. Then, the appellant took P.W.1 to the

record room of RDO office situated by the side of the STO office.

There, the appellant asked the bribe amount to be paid and after

receiving the said amount, it was kept in a cover and placed in

between the records in record room of the RDO office, Bodhan.

Thereafter, the appellant assured that the work of P.W.1 would be

done. P.W.1 came out of the office and gave pre-arranged signal.

4. The trap party entered into the office and conducted test on

the hands of the appellant. The test proved positive and when the

DSP questioned about the bribe amount, the appellant kept quite.

However, later the envelope containing bribe amount was found in

the record room of RDO's office at appellant's instance. The

relevant files were seized and after concluding the post-trap

proceedings, the investigation was handed over to the Investigating

Officer-P.W.7.

5. Sri D.V.Seetharama Murthy, learned Senior Counsel

appearing on behalf of Sri V.Prabhakara Rao, learned counsel for

the appellant submits that the very recovery of the amount is

doubtful. The appellant works in the office of the Sub Treasury

Office whereas the amount was found in a cover in the adjoining

RDO's office record room. It is apparent that the amount was

planted and the appellant was falsely implicated by P.W.1. P.W.1's

nature and conduct was stated by his Principal, who was examined

as D.W.1. D.W.1 stated that on 16.08.2001 and 17.08.2001, P.W.1

did not attend the duties as he was on election duties on the said

dates. D.W.1 also produced the attendance register, which was

marked as Ex.X1 and the relevant page Ex.X1-A. D.W.1 further

deposed that as a Head Master, complaint was given against P.W.1

to the Inspector of Police and further deposed that P.W.1 was a

quarrelsome person. He further submits that according to P.W.4,

the appellant did not have the authority to pass the bills submitted

under Exs.P2 and P3, as seen from the stamp affixed on the said

documents, it is apparent that they were received in the STO's office

on 23.08.2001, as such, the claim that the bills were submitted on

07.08.2001 cannot be believed. Further, on 16.08.2001, P.W.1 was

on election duty, as such the question of demanding the bribe on

the said date as stated in Ex.P1 complaint does not arise. In the

said circumstances, when the demand is not proved by the

prosecution, there cannot be any conviction under Sections 7 of the

Act and consequently under Section 13(1)(d) of the Act. He further

submits that the presumption under Section 20 of the Act cannot

be raised to shift the burden on to the appellant. In support of his

contentions, he relied on the following judgments:

i) K. Shanthamma v. The State of Telangana1, wherein the

Hon'ble Supreme Court held that when demand of illegal

gratification was not proved, the offence under Section 7 of the Act

is not established.

ii) In a judgment dated 29.03.2022 in the case of Rajesh

Gupta v. State, CBI, the Hon'ble Supreme Court held that there was

no proof of demand at the pre-trap stage or during trap. The courts

must not overlook the fundamental principal of an accused being

not guilty unless the case is established beyond reasonable doubt.

iii) While relying in the case of Akuathi Yellamanda v. State

ACB2 , learned Senior Counsel argued that mere recovery of amount

divorced from the circumstances is not sufficient to convict the

accused.

iv) He also relied on the cases of the State by S.P.through the

SPE, CBI v. Uttamchand Bohra, Criminal Appeal No.1590 of 2021,

decided on 09.12.2021, Gaurav Pandey v. the State of Madhya

Criminal Appeal No.261 of 2022

2021 (2) ALT (CRI.) 1 (S.B)

Pradesh [Criminal Appeal Nos.119 of 2016 and 357 of 2016,

decided on 25.07.2022]

6. On the other hand, Sri T.L.Nayan Kumar, learned Special

Public Prosecutor for ACB submits that the bribe amount was

recovered at the instance of the appellant, as such the presumption

arises under Section 20 of the Act. The appellant failed to

discharge his burden by proving his case even by preponderance of

probability. When once the amount was recovered at the instance of

the appellant, the Hon'ble Supreme Court held that presumption

attracts and once the accused fails to discharge his burden, the

conviction cannot be interfered with. In support of his contentions,

he relied on the following judgments; i) State of Maharshtra v.

Narsingrao Gangaram Pimple3; ii) State of U.P v. Zakaullah4; iii)

Chaturdas Bhagwandas Patel v. The State of Gujarat5; iv)

Madhukar Bhaskarrao Joshi v. State of Maharashtra6; v) State of

(1984) 1 Supreme Court Cases 446

(1998) 1 Supreme Court Cases 557

(1976) 3 Supreme Court Cases 46

(2000) 8 Supreme Court Cases 571

Kerala v. M.M.Mathew and another7; vi) State of U.P v.

Dr.G.K.Ghosh8 and argued that a) pendency of work is established;

b) the amount was recovered at the instance of the appellant which

is admissible under Section 27 of the Evidence Act; c) The

prosecution witnesses are not interested witnesses; d) Any

discrepancies trivial in nature cannot be looked into.

7. P.W.1 stated that the bills were processed in the office of STO

on 07.08.2001. However, Exs.P2 and P3 bills are stamped as

submitted on 23.08.2001. Even according to P.W.4, the bills Exs.P2

and P3 cannot be passed by the appellant and the competent

authority was the ATO. Though P.W.4 stated that Exs.P2 and P3

were submitted on 07.08.2001, there is nothing on record to accept

the said oral evidence. Admittedly, the originals of Exs.D4 and D5

which are paper tokens, the originals of which were not submitted

along with Exs.P2 and P3 bills. Admittedly, the bills as per the

record were submitted on 23.08.2001 by P.W.4. The register Ex.P10

shows that the token numbers were provided after the bills were

(1978) 4 Supreme Court Cases 65

(1984) 1 Supreme Court Cases 254

passed and sent to the Bank. The prosecution failed to prove that

the bills were submitted on 07.08.2001, which is apparent from the

stamp of the STO on Exs.P2 and P3 made on 23.08.2001 and after

passing the bills, paper tokens were issued as mentioned in Ex.P10

register. As on the date of alleged complaint, the bills of P.W.1 were

passed and also tokens were issued, which is within the knowledge

of P.W.1 and the bills were submitted by P.W.4, who is the Junior

Assistant in the school where P.W.1 was working as Telugu Pandit.

8. The prosecution case is that demand was made on

16.08.2001. However, the Principal of the college D.W.1 entered

into the witness box and deposed that P.W.1 was on election duty

at MPDO Office, Makloor from 7.00 a.m and also working as Polling

Officer on 16.08.2001 and 17.08.2001. The said election duty is not

disputed by the prosecution. When P.W.1 was on election duty as

Polling Officer, it is for P.W.1 to explain as to when he visited the

office of STO and met the appellant.

9. The alleged demand made on 16.08.2001 cannot be believed

for the said reason. The other date mentioned in the complaint is

23.08.2001 on which date, the appellant informed that the bills

would be passed only when the bribe amount is paid. However, the

bills were submitted on 23.08.2001 passed, sent to the Bank and

tokens were issued, as is evident from Ex.P10(A). The said demand

on 23.08.2001 also becomes doubtful since the bills were already

passed which apparently is within the knowledge of P.W.1.

10. On the date of trap, the amount was recovered from the

adjoining RDO's office record room. The said amount was found in

a cover in between the files of the record room of the RDO's office.

The said recovery is also doubtful. It is not explained as to how the

appellant had access to the record room of the RDO's office while

the appellant was working in the STO office. Why the amount was

placed in between the files in the record room of RDO's office is also

not explained. The files in the RDO's office are accessible to the staff

of the RDO office and the said recovery and placing the amount in a

cover in the record room is again a matter of suspicion and

doubtful. In the absence of any plausible explanation given by the

prosecution regarding the recovery from the adjacent office and in

the back ground of demand not being proved on 07.08.2001 and

23.08.2001, the prosecution has failed to prove its case.

11. In the result, the judgment in CC No.34 of 2002 dated

23.03.2007 is set aside and the appellant is acquitted. Since the

appellant was on bail, his bail bonds stand cancelled. As a sequel

thereto, miscellaneous petitions, if, pending, shall stands closed.

12. 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.371 of 2007

Date: 17.08.2022.

kvs