Md. Ajaj Ahmed, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 4162 Tel

          THE HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL APPEAL No.1316 of 2007

JUDGMENT:

1. The appellant is convicted and sentenced to undergo

rigorous imprisonment for six months for the charge under

Section 7 of the Prevention of Corruption Act, 1988 (for short 'the

Act of 1988') and also to pay fine of Rs.500/-, in default, to suffer

simple imprisonment for one month and further sentenced to

undergo rigorous imprisonment for one year for the charge under

Section 13(1)(d) punishable under Seciton 13(2) of the Act of

1988, and also to pay Rs.500/-, in default to pay, to undergo

Simple Imprisonment for one month, vide judgment in C.C.No.33

of 2003, dated 27.09.2007 passed by the Principal 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 a clerk in the

office of the BC Welfare, Warangal. P.W.1 is the complainant,

who was working as Correspondent in Sri Aurobindo Junior

College, Kesamudram of Warangal District. Intermediate

students are sanctioned scholarships by the Government

through BC welfare. Accordingly, proceedings were issued

granting scholarships to the students of the said college. When

the Correspondent-P.W.1 approached the office and met the

Superintendent-P.W.4, he informed that the cheques were ready

and asked P.W.1 to meet the accused officer. When P.W.1 met

the accused officer, the accused officer demanded an amount of

Rs.5,000/- to be given towards the total amount of Rs.30,000/-

scholarship that was sanctioned for 25 students and that unless

amount was paid, he would not give the cheques. Aggrieved by

the demand of bribe, P.W.1 filed complaint dated 31.01.2001 at

2.00 p.m.

3. The trap was arranged on 02.02.2001 after the complaint

was registered at 9.30 a.m. the same day. P.W.6, the DSP,

secured the presence of mediators P.W.3 and another and after

following the due procedure before laying a trap, the pre-trap

proceedings under Ex.P10 was drafted and proceeded to office of

accused. The trap party consisting of P.Ws.1, 3, 6 and others

have approached the office of the BC welfare around 10.15 a.m.

P.W.1 entered into the office at 11.20 a.m and came out of the

office and relayed pre-arranged signal of acceptance of bribe by

the accused officer. The trap party entered and conducted tests

on the hands of the accused officer, which turned positive and

the bribe amount was taken out from his pant watch pocket and

handed over to DSP. According to P.W.1, he met the accused

officer and informed that he brought the bribe amount,

thereafter the accused received the bribe amount and handed

over the scholarship cheques to him.

4. Learned counsel for the appellant submits that the very

demand is doubtful as no specific date or time of demand is

mentioned in the complaint. According to P.W.4, the cheques

cannot be given unless they are signed by him and further they

should be collected either by the correspondent or the Principal

of the college. However, P.W.1 sent his clerk for collection of the

cheques and the accused officer refused to hand over the

cheques and asked either P.W.1 or the Principal to approach

him, for the said reason of not giving the cheques and asking

P.W.1 to come personally, false complaint was filed.

5. Counsel further submits that the accused officer has given

spontaneous explanation during the post-trap proceedings that

the amount was thrust in his hands and when he refused to

take, they were thrust into his pant pocket. The accused officer

has examined the witness D.W.1, who specifically stated that the

accused officer at no point of time demanded any amount for

giving the scholarship cheques of the students. However, the

cheques have to be collected either by the Correspondent or by

the Principal. In support of his contentions, he relied on the

judgment reported in the case of State of Kerala and another v.

C.P.Rao [(2011) 6 SCC 450], wherein the Hon'ble Supreme Court

held that thrusting is probable defence and if proved by

preponderance of probability, the same can be accepted.

6. Learned Special Public Prosecutor for ACB submits that the

very defence of the accused officer that he was falsely implicated

for the reason of being a Muslim and P.W.1 belonging to BJP

party, is highly improbable. There is no reason why P.W.1 would

falsely implicate the accused officer unless demanded bribe by

him. The cheques were in the possession of the accused officer

on the date of trap and only when the amount was taken, the

cheques were handed over to P.W.1. In the said circumstances,

presumption under Section 20 of the Act arises and the accused

officer failed to discharge his burden, for which reason, the

conviction cannot be interfered with. In support of his

contentions, he relied upon in the cases of; i) Raghubeer Singh

v. State of Haryana1, rendered by Three-Judge Bench, it was

held that the very fact of an Assistant Station Master, being in

possession of marked currency notes against an allegation that

he demanded and accepted that amount is "RES IPSA

LOQUITUR"; ii) In Madhukar Bhaskar Rao Joshi v. State of

Maharashtra2, it was held that once the prosecution established

that gratification in any form cash and kind, had been paid or

accepted by a public servant the court is under legal compulsion

to presume that the said gratification was paid or accepted as a

motive or reward to do (or forbear from doing) any official act; iii)

In M.W.Mohiuddin v. State of Maharashtra3, it was held that

once the Accused comes into possession of the money, the only

inference that he accepted the same and thus obtained the

pecuniary advantage; iv) In State of A.P v. C.Uma Maheshwar

AIR 1974 SC 1516

2004 Crimes 240 SC

(1995) 3 SCC 567

Rao and another4, on the ground that demand made was not

believable, the accused officer was acquitted, but the Hon'ble

Supreme Court held that when receipt was admitted, it was for

the accused to prove as to how presumption was not available.

Public prosecutor submits that in this case, receipt was not

admitted by the accused officer, but it was proved with

convincing material and, therefore, the contention of defence

that presumption is not available to the accused officer should

not be appreciated.

7. The defence of the accused officer is that the amount was

thrust into his hands on the day of trap and when he refused,

P.W.1 thrust it into his pant pocket and the trap party entered

and conducted test on the accused officer. The said version of

forcible thrusting the amount was stated during the post trap

proceedings. When the DSP questioned regarding the amount,

the accused officer stated that he handed over the cheques of

scholarship and thereafter, P.W.1 offered currency notes and

when he refused to take, then P.W.1 put it into his hands and

2004 (2) Supreme 730

then thrust into the watch pocket of his pant. The defence

regarding thrusting is consistent and D.W.1, who is the Senior

Assistant in the BC Welfare Office stated that P.W.1 has thrust

the amount into the pant pocket of the accused, when accused

refused to take the said amount.

8. D.W.2 is In-charge of one SVSA Kalasala at Warangal. He

deposed that he has been collecting the cheques from the

accused officer over a period and never did the accused officer

ask for any money for handing over the scholarship cheques. On

the date of trap, D.W.2 also stated that he has seen P.W.1

forcibly thrusting the amount into the pant pocket. D.W.3 is

another Correspondent of Junior College, who was also present

on the date of trap and narrated the events on the trap day

similar to that of D.Ws.1 and 2.

9. According to the post trap proceedings, at the earliest point

of time, the accused officer had taken a defence that the amount

was thrust into his pant pocket. The defence that P.W.1 bore

grudge against the accused officer for the reason of refusal to

handover the cheques to clerk of P.W.1 for which reason, the

accused officer was falsely implicated in the trap is not

farfetched. In the complaint that was made on 29th, no details

are given regarding the date and time of demand by the accused

officer. Though in the complaint, he states that P.W.1 met P.W.4

in the office for the purpose of cheques, P.W.4 before the Court

stated that P.W.1 never met him and he has sent his clerk for

collecting the cheques. The accused officer refused to hand over

the cheques to the clerk when the clerk met P.W.4. P.W4 also

informed that it will be delivered either to the Correspondent or

to the Principal of the college. The said version of P.W.4 is not

disputed by the prosecution. Further, the demand allegedly

made by the accused officer is not proved by the prosecution.

Unless it is specifically stated by the witness as to when and

where the demand was made, the version of PW1 cannot be

considered in the facts of the present case. In the said

circumstances, the prosecution has failed to prove the demand

that was made by the accused officer.

10. Normally when there are two independent witnesses in the

trap party, one independent witness is sent along with the

complainant to witness as to what transpires between the

complainant and the officer. However, though available, no

independent witness was sent along with P.W.1. In the said

circumstances also, when there is no independent corroboration

to the factum of demanding and accepting bribe on the trap day,

the prosecution case becomes doubtful. In fact, P.W.4, who is

the superior of the accused officer has contradicted the version

of P.W.1 regarding his visit. D.Ws.1, 2 and 3 who were present

at the scene stated that they have seen P.W.1 thrusting the

amount into the pant pocket. In the case of defence witnesses,

only for the reason of their entering into the witness box in

favour of the accused officer, their evidence cannot be

disbelieved. Both the prosecution and defence witnesses have to

be equally treated by the Court. There are no reasons to

disbelieve the evidence of D.ws.1 to 3, who are probable

witnesses, who were present at the scene stating that the

amount was thrust into the pant pocket of the accused officer by

P.W.1.

11. In the said circumstances, the prosecution has failed to

prove its case beyond reasonable doubt for which reason, the

conviction recorded by the trial Court in CC No.33 of 2003 dated

27.09.2007 is liable to be set aside and accordingly, set aside.

12. Criminal Appeal is allowed and the appellant is acquitted.

Since the appellant is on bail, his bail bonds shall stand

cancelled.

_________________ K.SURENDER, J Date:17.08.2022 kvs

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.1316 of 2007

Dated:17.08.2022

kvs