Telangana High Court
A.V. Surender Kumar, vs The State Of Ap Rep By Its Spl. Pp ... on 26 July, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.476 OF 2008
Between:
A.V. Surender Kumar ... Appellant
And
The State of Andhra Pradesh,
rep. by its Spl. Public Prosecutor,
High Court Buildings, Hyderabad
Through Inspector of Police, ACB,
City Range-I, Hyderabad. ... Respondent
DATE OF JUDGMENT PRONOUNCED: 26.07.2022
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?
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No. 476 of 2008
% Dated 26.07.2022
# A.V. Surender Kumar ... Appellant
And
$ The State of Andhra Pradesh,
rep. by its Spl. Public Prosecutor,
High Court Buildings, Hyderabad
Through Inspector of Police, ACB,
City Range-I, Hyderabad. ..Respondent.
! Counsel for the Appellant: Sri Jitender Rao Veeramalla
^ Counsel for the Respondent: Ch.Vidyasagar Rao
>HEAD NOTE:
? Cases referred
1
(2002) 4 SCC 574
2
(2016) 12 SCC 150
3
(2006) 7 SCC 172
4
( 2020) 2 SCC 88
5
(2000) SCC 571
HON'BLE SRI JUSTICE K.SURENDER
3
CRIMINAL APPEAL No.476 OF 2008
JUDGMENT:
1. The appellant is convicted for the offence under Sections 7 and
also under Section 13 (1) (d) punishable under Section 13 (2) of the
Prevention of Corruption Act, 1988 (for short "the Act of 1988") vide
judgment in Calendar Case No.8 of 2004, dated 04.03.2008 passed
by the Principal Special Judge for SPE & ACB Cases, City Civil
Court, Hyderabad for demanding and accepting bribe of Rs.1,000/-
from the de facto complainant/P.W.1. Aggrieved by the same, the
present appeal is filed.
2. Briefly stated the case of the prosecution is that P.W.1 was
running M/s. Bhanu Engineering works at Ranigunj,
Secunderabad. On 14.08.2004 at about 12.00 noon, in the absence
of P.W.1, accused officer visited the shop and asked the person in
the shop about the business details and informed the person in the
shop to inform P.W.1 to meet him in his office on 20.08.2003.
When P.W.1 met the accused officer on the said day, AO demanded
Rs.1,000/-as mamool for not inspecting his shop in future and not
to point out any irregularities in inspection reports and further not
to harass him. PW1 was not willing to pay the bribe amount, as
such he gave a written complaint to the ACB on the same day at
11.00 a.m.
3. The trap was laid on 23.08.2003. The pre-trap proceedings
were drafted under Ex.P9 in the office of ACB Range-I, Hyderabad
in the presence of trap party. After concluding the pre-trap
proceedings, the trap party proceeded to the Bombay Hotel and
Bakery where AO asked PW1 to meet him, and reached the hotel
around 4.00 p.m. PW1 went inside the Hotel whereas the other
trap party members were waiting outside the hotel. Everything was
visible from outside as there were no complete wall structure.
Around 4.10 P.M, the accused officer arrived on his motorcycle and
walked into the Bombay hotel and met P.W.1/complainant.
Thereafter he received the amount and kept in his back pocket. The
entire transaction of meeting PW.1 and receiving amount, placing
the amount in his pocket was witnessed by the trap party members,
as such, without even receiving pre-arranged signal, the trap party
entered the hotel and DSP confronted the accused officer regarding
receiving of bribe. The accused officer was taken to the first floor of
the hotel and post trap proceedings under ExP10 were concluded
by 8.30 p.m, after conducting test on the hands of AO. The
investigation was thereafter handed over to the inspector, who
concluded investigation and filed chargesheet for the offences under
Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988.
The charges were also framed under the said provisions and after
conclusion of trial the accused officer was found guilty.
4. Sri T.Niranjan Reddy, learned Senior Counsel appearing for Sri
V. Jitender Rao, learned counsel for the appellant would submit
that there is no proof of demand by the accused officer. Further, the
reason for demand as mentioned in the complaint Ex.P1 was that it
was towards mamool, so that he will not inspect the shop in future
and not to point out any irregularities in the preparation of
inspection reports and not to harass P.W.1. However, when he was
examined before the court, he stated that he went to the office of
accused officer on 20.08.2003 and met him for the reason of
pending returns and asked time for filing the said returns, for
which reason Rs.1,000/-was demanded by AO for not taking any
action. In view of the improvement made regarding non-filing of the
returns, which was not mentioned earlier, there is an improvement
regarding demand of bribe.
5. In similar circumstances, the Hon'ble Supreme Court in the
judgment of K.Shanthamma v. State of Telangana1 (2002) 4
Supreme Court Cases 574 held that the version regarding the
demand was an improvement in the earlier statements as such the
demand could not be conclusively proved. In the said
circumstances, the conviction recorded against the appellant was
set aside.
6. The learned Senior Counsel also argued that material
document which is Section 164 Cr.P.C statement of PW1 was
suppressed by the ACB. Though the witness stated that he was
examined before the magistrate the said Section 164 CrPC
statement was not provided for which reason of suppression of
material documents, the accused officer is entitled to be acquitted.
7. Further there is no evidence to show that the accused officer
was in any way authorized to inspect the premises and give any
report regarding the business of P.W.1. Admittedly, P.W.1 was not
(2002) 4 Supreme Court Cases 574
present on the alleged date of demand on 14.08.2003. He relied
upon the judgment of Hon'ble Supreme Court in the case of
V.Sejappa v. State by Police Inspector, Lokayukta, Chitradurga2
the Hon'ble Supreme Court held that proof of demand is a sine qua
non to constitute an offence under Section 7 and mere recovery of
tainted currency notes was not sufficient to convict the accused.
8. Learned senior counsel finally argued that the trap playing
officer was not competent since he was not in the rank of DSP. In
the judgment reported in the case of State Inspector of Police,
Visakhapatnam v. Surya Sankaram Karri3, the Hon'ble Supreme
Court held that if a document in possession of public functionary is
not produced, which he has to, an adverse inference has to be
drawn. When the inspector has failed to produce any document to
show that he was competent to lay a trap, an adverse inference has
to be drawn and the trap proceedings are vitiated on account of the
incompetence of trap laying officer. However, the learned counsel
also brought to the notice of this court the judgment in the case of
Vinod Kumar Garg v. State (Government of National Capital
(2016) 12 Supreme Court 150
(2006) 7 Supreme Court Cases 172
Territory of Delhi)4, wherein the Hon'ble Supreme Court held that
though there was any irregularity in a proceeding, such
irregularity should have been resulted in causing prejudice to the
accused. Unless such prejudice is shown by the accused officer,
such irregularity will not be of any consequence and cannot be said
to vitiate the conviction. However, learned senior counsel submits
that when the statute has specifically mentioned about the rank of
police officer who can conduct a trap and when the same was not
followed and further no document was filed to show that the trap
laying officer was authorized, the said circumstances themselves go
to show that the procedural law was not followed, for which reason
the prosecution is bad. For the said reasons, AO is entitled to be
acquitted.
9. The learned Special Standing Counsel for ACB would submit
that the conduct of the accused officer going to the shop of P.W.1
on 14.08.2003 would itself show that he was a person in authority
and had every reason to demand money. The prosecution case
cannot be expected to be proved with mathematical precision.
(2020) 2 Supreme Court Cases 88
Discrepancies trivial in nature would always creep in during the
course of investigation and the trial. When such discrepancies do
not go to the root of the case, they can be ignored. From the
evidence of call records collected by the ACB it is apparent that the
accused officer was constantly in touch with P.W.1, and further on
the day of trap, the entire trap party had seen the accused officer
receiving money from P.W.1 and the same was recovered from his
pant pocket. There is no explanation given by the accused officer at
the time of post trap proceedings and in fact the accused officer had
accepted that he had taken money from P.W.1 for which reason the
presumption under Section 20 of the Act has to be raised. Since
the accused officer has failed to rebut the presumption, the
conviction recorded by the Special Judge is proper. In support of
his contentions, he relied on the judgment reported in the case of
Madhukar Bhaskarrao Joshi v. State of Maharashtra5.
10. As seen from the complaint Ex.P1, it is stated in the body of
the complaint that at 12.30 noon, on 20.08.2003, an amount of
Rs.1,000/-was demanded from PW1 as mamool by AO at his office
(2000)8 SCC 571
for not inspecting the shop of PW1 in future and not pointing out
any irregularities and not to harass him. However, the said
complaint was received by the ACB office at 11.00 a.m. When it is
the specific case of P.W.1 that demand was made at 12.30 p.m, how
a complaint could be lodged at 11.00 a.m itself was not explained
by the prosecution. However, during the course of trial, P.W.1
stated that the demand was made at 10.30 a.m, pursuant to which
he lodged a complaint. There is no explanation by PW1 as to how
the time of 12.30 p.m was mentioned in the complaint. It appears
that the prosecution is suppressing the actual version and coming
up with a tainted one.
11. As pointed out by the learned Senior Counsel, the version
given for demand of bribe amount is improved during the course of
trial. As seen from the complaint, it was stated that the said
amount of Rs.1,000/-was towards mamool, so that no inspection
would be done in future and no to point out any irregularities. But
during his evidence in the court, PW1 stated that he went to the
office of AO on 20.08.2003 as some returns were pending and asked
the accused AO time to file such returns. There is any amount of
improvement in between the reason for demand that was mentioned
in the complaint and what is stated before the court. In the
complaint Ex.P1, it is stated as follows;
"On 14.08.203 at about 12.00 noon Mr.Surender Kumar, ACTO,
Ranigunj Circle visited our shop asked about the business
details and turnover and asked me to meet him on 20.08.2003
at about 12.30 noon in his office. Where he demanded to pay
Rs.1,000/- as mamool to him so that he will not going to inspect
my shop in future and not to point out any irregularities in the
preparation of inspection reports and not to harass me."
However during trial he stated as follows:
"On 20.08.2003 I went to the office of ACTO and met the
AO in his office around 10.30 A.M. As some of my returns
were pending I asked some time for filing the same. He
asked Rs.1,000/- towards mamool from me for not taking
any action against me. I requested for some time and
came out of the office of AO."
12. Admittedly, on 14.08.2003, there was no demand by the
accused officer from PW1. According to P.W.1, there was one
person in his shop when the accused officer allegedly went to his
shop on 14.08.2003 and asked to meet him. Further, there is no
mention about any inspection or verification of accounts in the
complaint Ex.P1. However, he stated so during his examination
before the Court that AO verified accounts on 14.08.2003.
13. No witness is examined by the prosecution to prove the any
demand or verification on 14.08.2003. P.W.1 did not mention as to
who was present on 14.08.2003 when the accused officer allegedly
went to the shop and inspected the records. Further, the alleged
Section 164 Cr.P.C statement was also not provided to the accused
officer which resulted in not giving an opportunity to the accused
officer to cross-examine P.W.1 on the basis of his previous
statement.
14. The facts of the present case are similar to that of
K.Shanthamma's case (supra) decided by the Hon'ble Supreme
Court. The prosecution has made improvements regarding the
reason for demand and further failed to provide either returns filed
by P.W.1 or the documents that were allegedly inspected by the
accused officer on 14.08.2003.
15. In the said circumstances, the demand of illegal gratification
by the appellant/accused officer was not proved by the prosecution
for which reason, the ingredients under Section 7 of the Act of 1988
are not proved. In the absence of proof of demand, the recovery is
of no consequence and accordingly, the appeal is liable to be
allowed.
16. In the result, the impugned judgment in C.C.No.8 of 2004
dated 04.03.2008 is set aside and the accused is acquitted. Since
the appellant is on bail, his bail bonds stand cancelled.
17. Accordingly, the Criminal Appeal is allowed. As a sequel
thereto, miscellaneous applications, if any, shall stand closed.
__________________
K.SURENDER, J
Date: 26.07.2022
Note: LR copy to be marked
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.476 of 2008
Date: 26.07.2022.
kvs
