K.Chandrashekar Rao Another vs The State Of A.P.
2022 Latest Caselaw 3957 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

                 CRIMINAL APPEAL No.641 of 2013
JUDGMENT:

This appeal is preferred by the appellants aggrieved by the judgment

passed by the I Addl. Special Judge for SPE & ACB cases, City Civil

Court, Hyderabad in C.C. No.35 of 2009 dated 23-7-2013 wherein the

Appellant No.1 - Accused Officer No.1 was convicted under Sections 7

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

short 'PC Act') and sentenced to undergo simple imprisonment for a period

of one year and fine of Rs.5,000/- and in default of payment of fine to

undergo simple imprisonment for a period of two months for the offence

under Section 7 of the PC Act and to undergo simple imprisonment for a

period of one year and fine of Rs. 5000/- and in default of payment of fine

to undergo simple imprisonment for a period of two months for the offence

under Section 13(1)(d) read with 13(2) of PC Act 1988 and directed both

the sentences to run concurrently and the Appellant No.2 - Accused

Officer No.2 was convicted for the offence under Section 12 of the PC Act

and sentenced to undergo simple imprisonment for a period of one year and

fine of Rs.5,000/- and in default of payment of fine to undergo simple

imprisonment for a period of two months.

Dr.GRR,J

2. The prosecution case in brief was that Accused Officer No.1

(AO1) was working as an Accountant in the Office of the Zonal

Commissioner, GHMC, Serilingampally and AO2 was working as a Junior

Assistant in Outsourcing Pool in the same office. The father of the

complainant was allotted the work of providing modern lighting system

with tubular poles at white fields, Lotus Apartments at Serilingampally

Circle. On 15-10-2008 an agreement was executed between the Executive

Engineer, Electrical Division, West Zone, GHMC and the father of the

complainant wherein the amount of estimate was shown as Rs.4,60,000/-

and the amount of contract was shown as Rs. 4,15,000/-. The complainant

was looking after the official work on behalf of his father. As per the

agreement, the work was executed and completed by the complainant and

quality control inspection report was issued by Executive Engineer, Quality

Control (Electrical), GHMC. After statutory deductions, the complainant

was entitled to receive Rs.3,75,000/- approximately from GHMC, West

Zone, Serilingampally. When the complainant contacted AO1 on

01-11-2008 for cheque details, he did not respond properly. The

complainant understood that AO1 was expecting bribe and contacted a

TV9 reporter, who helped him in arranging a sting operation. The TV9

reporter provided the complainant with a spy camera attached to his shirt Dr.GRR,J

button. With that on 03-11-2008, the complainant contacted AO1 at his

office. AO1 demanded bribe of Rs.6,000/- or 1.5% of the cheque amount to

complete all formalities and for getting the signatures of the concerned

officers on cheque and issuing the same to the complainant. On the request

of the complainant, AO1 reduced the bribe amount from Rs.6,000/- to

4,000/-. The complainant recorded the conversation that took place

between him and AO.1. He approached the DSP, ACB, City Range-1,

Hyderabad on 4-11-2008 at 3:00 PM and lodged a complaint and enclosed

the CD to the complaint. The DSP after verification, registered a case vide

Cr.No.30/ACB/CR.1/2008 under Section 7 of PC Act on 6-11-2008. He

secured the services of two official witnesses to act as mediators and laid a

trap on 6-11-2008 after observing all legal formalities. On 6-11-2008, the

complainant approached AO1 to collect the cheque. AO1 enquired whether

he brought the demanded bribe amount. On his affirmative reply, AO1

called AO2 and asked him to give the cheque after receiving the bribe

amount from him. Accordingly, AO.2 took the complainant to his seat. The

complainant gave the bribe amount of Rs. 4000 to AO2. AO2 took the

bribe amount with his right hand, counted with both hands and kept the

same in his right side back pocket of his wearing pant. AO2 obtained

signature of the complainant in the cheque issue register and gave the Dr.GRR,J

cheque for Rs. 3,74,091/-. After receiving the cheque, the complainant gave

a pre-arranged signal to the trap party. The trap party along with the

mediators rushed into the room. When they tested AO1 by treating his

fingers in sodium carbonate solution, the test yielded negative. When the

attention of AO1 was drawn to the video recording, AO1 stated that he

directed AO2 to receive the bribe amount and to give the cheque to the

complainant. The tainted bribe amount was recovered from the possession

of AO2. The chemical test conducted on his both hand fingers yielded

positive. The inner portion of the wearing pant pocket of AO2 when

subjected to sodium carbonate test, the same also yielded positive result.

AO1 and AO2 were arrested and produced before the Special Court on

7-11-2008. They were enlarged on bail on 14-12-2008. The statement of

the complainant was got recorded by the II MM, Secunderabad under

Section 164 CrPC on 29-11-2008. Further investigation was conducted by

the Inspector of Police, ACB, CR-1, Hyderabad. He recorded the

statements of the witnesses and collected the relevant documents. After

obtaining sanction from the Government to prosecute AO1, the Inspector of

Police, Hyderabad Range filed charge sheet against AO1 and AO2. AO2

was removed from service being an outsourcing employee.

Dr.GRR,J

3. The case was taken on file by the I Addl. Special Judge for SPE &

ACB Cases, City Civil Court, Hyderabad under Sections 7 and 13(1)(d)

read with 13(2) of PC Act against AO1 and under Section 12 of PC Act

against AO2. On appearance of AO1 and AO2 before the Court, copies of

charge sheet and all the annexures thereto were furnished to them in

compliance with Section 207 CrPC. As AO1 and AO2 pleaded not guilty,

charges were framed against them.

4. The prosecution got examined PWs.1 to 7 and got marked Exs. P1

to P16 and MOs.1 to 10. AO1 got examined DW1 on his behalf and got

marked Ex.X1 through him.

5. On considering the evidence on record and on hearing the learned

Special PP and the learned defence counsel for AO1 and AO2, the Special

Judge found them guilty and convicted them for the offences under

Sections 7 and 13(1)(d) read with 13(2) of PC Act against AO1 and under

Section 12 of PC Act against AO2 and sentenced them as stated above.

6. Aggrieved by the said conviction and sentence passed against

them, AO1 and AO2 preferred this appeal contending that the trial court

failed to see that there was no corroboration for the evidence of the

complainant with regard to his alleged visit to the office and the demand Dr.GRR,J

made by AO1 on 3-11-2008 and on 5-11-2008. The trial court failed to see

that since AO1 refused to overlook the statutory deductions of Rs.41,618/-

from the amount of Rs. 4,15,729/-, a verbal altercation took place between

the complainant and AO1 on 1-11-2008 and due to the said grudge, the

complainant implicated AO1 in this false case. The prosecution failed to

prove the demand on 3-11-2008 and 5-11-2008, as none of the staff

members stated about the complainant meeting AO1 on the said dates. The

court ought to have seen that PW5, the Zonal Commissioner, West Zone,

Serilingampally, who was the leave sanctioning authority stated that AO1

applied for half day CL on the forenoon of 5-11-2008, hence the claim of

PW1 that he met AO1 on 5-11-2008 at about 11:00 AM was improbable.

The court erred in relying upon the evidence of DSP, ACB who stated that

he did not seize the CL application of AO1 ignoring the fact that it was

forming part of the record. The court failed to believe the evidence of

DW1, who deposed about AO1 coming to his house on 5-11-2008 to attend

the 10th day ceremony of his mother and stayed from 8:00 AM to 1:30 PM

which would establish the false evidence of PW1. The court erred in

treating the post trap mediators report as substantive evidence. The court

erred in considering the evidence of PW8 as hostile, without treating him as

such by the prosecution. The court erred in not considering that there was Dr.GRR,J

no demand made by AO2 and when he refused to receive the amount, PW1

suddenly thrusted the cash into the back side pant pocket of AO2 and

meanwhile the ACB officers entered into the office and closed the doors of

the office. The Court failed to consider that the ACB officers deliberately

involved AO2 in the case as he refused to state that on the instructions of

AO1, he took the tainted amount from PW1. The reasons stated by the

Court were untenable and unsustainable and prayed to allow the appeal by

setting aside the judgment of conviction and sentence passed by the trial

court.

7. Heard the learned counsel for the appellants and the learned

Special Public Prosecutor for ACB.

8. The learned counsel for the appellants submitted that the father of

PW1 got the agreement with the department. No authorization was given

by the father of PW1 to his son. PW1 was not the agent of the original

contractor. There was no presumption in law that son would automatically

become the agent of father. No amount was recovered from the possession

of AO1 and the test failed on him. AO1 had never demanded and accepted

bribe. As per Ex P7, he received the file on 3-11-2008. Therefore the

statement of PW1 that he met him on 1-11-2008 was false. The statement Dr.GRR,J

of PW1 that he met AO1 on 5-11-2008 was false, as AO1 was on leave on

that day as per Ex P11. The trial judge ignored the said aspect.

8.1 By the time PW1 gave the compliant, the cheque was ready for

issuance. The Zonal Commissioner and Examiner of Accounts signed on

the cheque on 5-11-2008. PW1 stated in his cross examination that he met

AO1 at 12:25 PM on 6-11-2008 but as per the testimonies of PWs.4 & 8,

AO1 was in a meeting at that time. PW4 had stated that there was no role

of AO1 in withholding the cheque. PW5 stated about AO1 being on leave

on 5-11-2008. PWs.4, 5 & 8 were not even cross examined by the PP. PW8

was merely re-examined. The evidence of PW9 was totally ignored by the

trial judge. The evidence of PW10 with regard to Ex P2 was contradictory

to the evidence of PW6. While PW10 stated that Ex P2 was handed over

by PW6, PW6 stated that the ACB authorities took the spy camera and

transferred the data.

8.2 PW1 had not stated about conducting any sting operation in his

compliant. There was no mention of Ex P2 CD in Ex P6 FIR. The spy

camera was not produced before the court and Ex P2 CD was not proved in

accordance with law and relied upon the judgment of the Hon'ble Apex

Court in Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal Dr.GRR,J

and Ors.1 as to proof of primary and secondary evidence qua electronic

records/documents.

8.3 With regard to AO2, he contended that AO2 never demanded

and accepted any amount. On 6-11-2008, PW1 after receiving the cheque,

forcefully thrusted the amount in the back side pant pocket of AO2 as per

the evidence of PW8, no role of AO2 was stated prior to 6-11-2008.

8.4 The learned counsel for the appellants relied upon several

judgments on the aspect that proof of demand of bribe is sine qua non for

establishing the offences under Sections 7 & 13 of PC Act and in the

absence of proof of demand he contended, that the accused were entitled

for acquittal.

9. The learned Special Public Prosecutor for ACB, on the other

hand, supported the judgment of the trial court. He contended that the

evidence of PW1 was trustworthy with regard to the demand made by

AO1. AO1 instructed AO2, who was his assistant to handover the cheque

only after receiving the bribe amount. The tainted amount was recovered

from the possession of AO2. The official favor of handing over the cheque

was pending with AO1 and AO1 had instructed AO2 not to handover the

(2020) 7 SCC 1 Dr.GRR,J

cheque until the amount demanded by him was received. After appreciating

the evidence on record only, the trial court convicted the accused. No

interference was required and prayed to dismiss the appeal.

10. On hearing both the learned counsel, the points that arise for

consideration in this appeal are:-

(i) Whether the prosecution was able to bring home the guilt of AO1 beyond reasonable doubt for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of PC Act, 1988?

(ii) Whether the prosecution successfully proved the guilt of AO2 beyond reasonable doubt for the offence punishable under Section 12 of PC Act, 1988?

(iii) Whether the conviction and sentence passed by the trial court against AOs.1 and AO2 is sustainable?

11. POINTS No.(i) and (ii): As the charges and evidence led by the

witnesses against AO1 and AO2 are inseparable, these points are

considered together. The charges framed against AOs.1 and 2 are as

follows:

1. That you (AO1) Sri Kollipaka Chandrashekar Rao being a public servant employed as Accountant in the office of the Zonal commissioner, GHMC, Serilingampally, on 6-11-2008 as per your Dr.GRR,J

earlier demands, you (AO1) have demanded and accepted bribe amount of Rs. 4000/- from the complainant Sri Ayya Rajasekhar through (AO 2) as a motive or reward for yourself as gratification other than legal remuneration, to do an official act of issuing a cheque for Rs. 3,74,091/- to Sri Ayya Rajashekar and thereby you (AO1) have committed an offence punishable u/S 7 of PC Act, 1988 and within my cognizance.

2. That, Accused officer of you (AO1) during the same time and place of aforesaid first charge, being a public servant employed as Accountant in the office of the Zonal commissioner, GHMC, Serilingampally, on 6-11-2008 by corrupt and illegal means or otherwise abusing your position as a public servant, obtained illegal gratification and pecuniary advantage for yourself to an extent of Rs. 4000/- from Sri Ayya Rajashekar through AO2 for doing an official favor of issuing a cheque of Rs. 3,74,091/- to Sri Ayya Rajashekar and thereby you (AO1) have committed an offence punishable u/S 13(2) of PC Act, 1988 and within my cognizance.

12. In order to bring home a charge under Section 7, the prosecution

has to prove that the accused officer accepted illegal gratification, which

was not the remuneration for which he was legally entitled to and that he

has accepted the same as motive for doing an official act.

In so far as the offence u/S 13(1)(d) r/w 13(2) of the Act is

concerned, the prosecution has to prove that the accused officer by corrupt

or illegal means obtained for himself a valuable thing or pecuniary

advantage and that he has committed criminal misconduct being a public

servant.

Dr.GRR,J

Section 12 of the Act is pertaining to abetment of the offence

punishable under Section 7 or 11 whether or not that offence is committed

in consequence of that abetment.

13. In the case of P. Satyanarayana Murthy Vs. District

Inspector of Police, State of AP and another2, the Hon'ble Apex Court

has summarized the well-settled law on the subject as follows:

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction there under."

14. It is considered necessary to appreciate the evidence of the

complainant (PW1) on this aspect. PW1 stated that he met AO1 four times

with regard to the pending bill of his father in the audit section of GHMC,

Serilingampally. On 1-11-2008, he met AO1 in respect of the bill and as

AO1 had not given any reply, he suspected that AO1 was expecting bribe

and approached TV9 reporter on 3-11-2008. On 3-11-2008, the TV9

reporter Pandarinath (PW6) provided a spy button camera to him. On the

(2015) 10 SCC 152 Dr.GRR,J

same day at 11:00 AM, he met AO1 and requested him for issuance of the

cheque. AO1 demanded bribe of Rs. 6000 for delivery of cheque. On his

request, AO1 reduced the bribe amount to Rs. 4000. He recorded the

conversation between him and AO1 with spy button camera. On the same

day, Pandarinath gave the CD to him by converting the conversation

recorded through spy button camera. On 4-11-2008, he approached the

ACB authorities, Hyderabad and lodged the report. He also handed over the

CD. The DSP instructed him to contact AO1 again on the next day i.e 5-11-

2008. He accordingly met AO1 at his office at 11:00 AM. AO1 informed

him that the cheque would be released in the evening and instructed him to

come on 6-11-2008 along with the bribe amount for taking delivery of the

cheque. On 6-11-2008, at about 12:35 PM, he alone entered into the office

and met AO1. AO1 enquired with him whether he brought the bribe

amount. When he affirmed in positive, AO1 instructed AO2 to collect the

bribe amount from him and to handover the cheque and to obtain his

signature in the register. AO1 instructed him to pay the amount to AO2.

AO2 was in front of AO1 at that time.

15. Thus PW1 had not stated about any demand made by AO1 on

1-11-2008. He only stated that he suspected AO1 and then approached the

TV9 reporter. He stated about the demand made by AO1 on 3-11-2008, Dr.GRR,J

when he met him at his office at 11:00 AM. He stated that AO1 demanded

bribe of Rs. 6000 for delivery of cheque and on his request reduced the

bribe amount to Rs. 4000. The prosecution got examined PW6, the TV9

reporter in corroboration to the evidence of PW1 with regard to the demand

made by AO1 on 3-11-2008.

16. PW6 stated that PW1 met him at about 11:00 AM on 3-11-2008

at TV9 office and complained that AO1 was demanding payment of bribe

to a tune of Rs. 5000 for clearing his bills regarding the contract works

done by him for the Municipality. He provided PW1 with equipment for

recording the sting operation. He equipped PW1 with a spy camera

attached to his shirt button and trained him in recording the proposed sting

operation. He sent PW1 to the office of AO at about 2:30 PM on the same

day and asked him to be in contact through his phone. In between 3:00 PM

to 5:00 PM, PW1 informed him over phone that he recorded the sting

operation through the spy camera but was not aware whether the recording

was properly made or not. He asked him to bring the same to his office. He

got played the same through the monitor and found it correctly recorded.

17. Thus the evidence of PW6 corroborated with the evidence of

PW1with regard to the demand made by AO1 on 3-11-2008 and that the Dr.GRR,J

same was also recorded by an electronic equipment which was transformed

into a CD and marked as Ex. P2.

The CD would be a perfect corroborative piece of evidence to the

evidence of PW1 to prove the demand of AO1 made on 3-11-2008, if it is

properly proved. The spy camera used for recording the conversation

between PW1 and AO1 was not produced before the court. The spy camera

is the primary evidence to prove the electronic record marked as Ex P2. In

the absence of primary evidence, the prosecution ought to have filed a

certificate issued under Section 65-B(4) of Evidence Act 1872, to prove it

as secondary evidence.

18. The Hon'ble Apex Court in Arjun Panditrao Khotkar's case (1

supra) held that:

"The certificate required under S.65-B(4) is a condition precedent to the admissibility of secondary evidence by way of electronic record i.e. as laid down in Anvar P.V. case, and incorrectly "clarified" in Shafhi Mohammad case Further, oral evidence in the place of such certificate cannot suffice, as S. 65- B(4) is a mandatory requirement of the law and clearly states that secondary evidence is admissible only if it is led in the manner stated and not otherwise. Further, S. 65-B differentiates between the original information contained in the "computer" itself and copies made there from, the former being primary evidence, and the latter being secondary evidence.

The required certificate under S. 65-B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the Dr.GRR,J

device concerned, on which the original information is first stored, is owned and/or operated by him. However, where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with S. 65-B(1), together with the requisite certificate under S. 65-B(4)."

19. The learned Special Public Prosecutor contended that as PW6

stepped into the witness box and gave evidence, it was not necessary to

produce certificate u/S 65-B(4) of Evidence Act, as per the above

judgment. But this court does not approve the contention of the learned

Special Public Prosecutor. Only when the spy camera is produced before

the Court and PW6 speaks about it that the recording was reduced into CD,

the same can be considered as primary evidence. In the absence of

production of the spy camera, the CD would only amount to secondary

evidence and to consider it as admissible, the certificate u/S 65-B(4) is

mandatory. In the absence of the said certificate and in the absence of

producing the primary evidence i.e. the spy camera, the oral evidence of

PW6 would not make the CD as primary evidence. As such the CD cannot

be considered as proved in accordance with law. The CD cannot be

considered as an admissible and relevant piece of evidence. However, the

oral evidence of PW6 corroborated with the evidence of PW.1 with regard

to the demand made by AO1 on 03.11.2008.

Dr.GRR,J

20. With regard to the demand made by AO1 on 5-11-2008, the

AO1 had taken the defence of plea of alibi. The learned counsel for the

appellant contended that AO1 was not present in the office on the forenoon

of 5-11-2008 and he attended the 10th day ceremony of the mother of his

distant relative at the Ordinance Factory quarters at Eddumailaram, Medak

District. The defence got examined the relative of AO1 as DW1. DW1

stated that AO1 attended the 10th day ceremony of his mother on 5-11-2008

and stayed in his quarters from 8:00 AM to 1:30 PM and he distributed

Bhagwat Gita Books to all those who attended the ceremony in memory of

his late mother. A book of Bhagwat Gita was marked as Ex.X1 through this

witness.

21. The Zonal Commissioner, West Zone, GHMC, Serilingampally

at the relevant point of time was examined as PW5. In his cross

examination he admitted that he was the leave sanctioning authority for

AO1 and AO1 applied for half day CL on the forenoon of 5-11-2008 for

attending personal work and Ex. P11 was the attendance register containing

a copy of leave application of AO1 on 5-11-2008 bearing his initial.

22. PW10, the DSP, ACB at the relevant time, who seized the

attendance register marked as Ex. P11 stated that he had not seized the Dr.GRR,J

photostat copy of the leave application dated 4-11-2008 of AO1. The trial

court observing that it was a serious issue as to how a document which was

not seized appeared in the record but it was too long to make any probe into

the said aspect and as per the entries in Ex. P11, AO1 appeared to have

signed for his full attendance on that day and PW5 was unable to say

whether he sanctioned the leave to AO1 or not, disbelieved the evidence of

DW1 and PW5 and the defence plea of alibi taken by AO1. The defence

had not called for the original leave application of AO1 from the office to

prove that it was sanctioned. Hence this court also does not find any

illegality in the observation of the trial court in disbelieving the plea of alibi

taken by AO1 on 5-11-2008.

23. With regard to the demand made by AO1 on 6-11-2008, the

learned counsel for the appellant contended that AO1 was not present in his

seat at the time when the complainant came to the office. A meeting was

held in the chambers of PW3 the Financial Advisor of the office of the

Zonal Commissioner, West Zone, GHMC, Serilingampally and only after

AO2 was trapped, AO1 came out from the chambers of PW3.

24. PW3 stated in his cross examination, that on the date of the trap,

a meeting was held in his chambers. After he along with LW5, Bhasker Dr.GRR,J

came out after the completion of meeting, they were informed that AO2

was trapped. He did not state anything about the presence of AO1 in the

meeting along with them.

25. The Zonal Manager by name Bhasker examined as PW4 stated

in his evidence that after completion of meeting, he and PW3 came out and

they were informed by the ACB officials that AO2 was trapped. In his

cross examination, he stated about AO1 participating in the meeting and

further stated that after informing them that AO2 was trapped, the ACB

officials took away AO1 along with them.

26. The evidence of PW4 seems to be an improvement over the

evidence of PW3. The defence tried to improve their defence gradually

from one witness to the other to elicit something in their favor which was

not spoken by the previous witness.

27. The computer operator who prepared the cheque was examined

as PW8. He stated that he attended the office on 3-11-2008. He did not

observe PW1 meeting AO1 on that day. On 1-11-2008, he saw PW1

talking with AO1. In his cross examination he developed a full-fledged

story stating that there was a verbal altercation between PW1 and AO1 on

1-11-2008 as AO1 informed PW1 that he would get an amount of Dr.GRR,J

Rs.3,75,000/- only after statutory deductions made from the total amount

payable to him. PW1 made a request to AO1 to help him in getting a higher

amount by over looking the statutory deductions and AO1 refused to help

PW1. On the date of trap, at about 11:40 AM, he observed PW1 coming to

meet AO1, but was told by some office staff that AO1 was attending a

meeting in the room of PW3. PW1 approached AO2 and AO2 handed over

cheque to PW1. AO2 obtained the signature of PW1 in the cheque issue

register. PW1 offered some amount to AO2 and AO2 refused to receive the

same. PW1 thrusted the cash into the back side pant pocket of AO2,

meanwhile the ACB officials entered into the office.

28. This story of AO1 not being present in his seat at the time of trap

on 6-11-2008 and the cash being thrusted into the back side pant pocket of

AO2 was not taken by AO's 1 and 2 at the earliest opportunity nor was

stated by any of the witnesses in the post trap proceedings recorded by

PW10. The post trap proceedings are contemporaneous record of the

happenings taken at the time of trap. If AO's 1 and 2 had stated as such at

that time, it would have made their defence somewhat reliable. No such

defence being taken in the post trap proceedings and the gradual

improvement in the defence elicited from the cross examination of the Dr.GRR,J

prosecution witnesses, who were the colleagues of AO1, makes it

suspicious.

29. The learned Special Public Prosecutor relied upon a judgment

of the Hon'ble Apex Court in Billa Nagul Sharief v. State of Andhra

Pradesh3 wherein a similar defence was taken by the appellants, the

Hon'ble Apex Court observed that:

"20. Mr. Ranga Ramanujam has referred to the evidence of the defence witnesses and contended that from their evidence it is evident that the appellant was falsely implicated as the de facto complainant had quarrelled with the appellant a few days earlier to the date of occurrence. He also points out that the defence witnesses have also deposed that on 6th of January, 1997 when the appellant demanded the bribe money and on 8th of January, 1997 when the trap was laid and the bribe paid, the appellant was assigned the duty of presenting bills in the treasury and, therefore, his presence on both the dates is doubtful. He also refers to the evidence of the defence witnesses wherein it has been stated that the money was thrust in the pocket of the appellant. All these facts, according to Mr. Ranga Ramanujam lead to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt.

21. We have considered all these submissions and they do not commend us. Defence witnesses have clearly stated that the time which one may spend for presenting the bills could be maximum three and a half hours. They have not stated in their deposition that the appellant or for that matter anybody presenting the bills have to remain in the treasury continuously for three and a half hours. In the face of the evidence of the prosecution witnesses that the appellant demanded bribe on 6.1.1997 and received the same on 8.1.1997 cannot be doubted on the ground that for few hours the appellant was assigned the duty of presenting the bills in the treasury. The alleged quarrel between the appellant and the de facto-complainant on 30.12.1996 is also of no consequence in view of the specific and consistent evidence

(2010) 11 SCC 575 Dr.GRR,J

about the demand and payment of bribe unfolded by the prosecution witnesses. The plea put forth by the appellant that the money was thrust on his pocket is not fit to be believed in the face of the categorical and consistent evidence of the prosecution witnesses."

30. The above observations of the Hon'ble Apex Court answers the

defence taken by AO1 with regard to the altercation between the

complainant and AO1 on 01.11.2008 which was subsequently extracted

from the evidence of PW.8 as well as the plea of alibi taken by AO1 on

05.11.2008 and the thrusting theory taken by AO2.

31. The mediator was examined as PW2. He is also a government

employee whose evidence corroborates with the evidence of PW1. He

stated that he along with the other mediator questioned PW1 about the

correctness of the contents of the compliant and that PW1 produced an

amount of Rs. 4000 consisting of two notes of 1000 rupee denomination

and four notes of 500 rupee denomination, noted the numbers of the said

currency notes. He stated about the pre trap proceedings and post trap

proceedings. The same currency notes with the same numbers were

recovered from the possession of AO2. Both the hand fingers of AO2 and

the right side back pocket of the pant of AO2 also tested positive to the

sodium carbonate test conducted before them. The evidence of PW2 proves Dr.GRR,J

the presence of AO1 in his seat at that time. His evidence would also

disclose that the test proved negative when conducted on the hands of AO1.

The connection between AO's 1 and 2 was proved by prosecution through

this witness. He stated about the DSP questioning AO1 about the recording

of incriminating evidence by TV9 network people and that the version

given by AO1 was recorded. The role of AO2 was known to the ACB

officials only through AO1. The incriminating material i.e. the tainted

currency notes recovered from AO2 proves the involvement of both the

appellants in the offence, as one led to the other and proves that AO2 acted

on behalf of AO1 and received tainted currency notes as illegal

gratification as per the demand of AO1, for doing the official favor of

handing over the cheque for the works done by the complainant/his father.

32. The official favour pending with AO1 was spoken by PW's 4

and 5. PW4 stated about the accountant (AO1) receiving the cheque after

obtaining the signatures of the Chief Examiner of Accounts and the Zonal

Commissioner and that AO2 was the assistant under AO1 and was

maintaining the cheque issue register. The duties of the accountant were

spoken by PW5. He stated that the preparation of cheques, preparation of

bills relating to works done by the contractors and handing over the Dr.GRR,J

cheques to the concerned was the duty of the accountant (AO1). Thus the

official favor pending with AO1 was stated by PW's 4 and 5.

33. PW7, the father of the complainant stated that he entrusted the

execution of the work to PW1 being his son due to his health problems. He

stated about the agreement entered by him with the EE, Electrical Division

on 15-10-2008 and that the contract was completed by 27-10-2008 and an

amount of Rs. 3,75,000 was due to him by GHMC and PW1 told him about

the demand of amount by AO1. Thus, his evidence would prove that he

orally authorized his son to look after the execution of the work as well as

collection of cheque from the office. If the contention of the learned

counsel for the appellants is to be believed that PW1 could not be

considered as the agent of the original contractor and there was no written

authorization given by PW7 to PW1, the accused persons also could not

have handed over the cheque to PW1 without any authorization. Hence,

the said contention is not considered as valid.

34. PW9 speaks about the sanction issued by the Principal Secretary

to the Government, Municipal Administration and Urban Development

Department to prosecute the AO1 vide GOMs No. 494 dated 31-7-2009.

Dr.GRR,J

35. PW11 is the Inspector of Police ACB, City Range 1, Hyderabad

who recorded the statements of the witnesses and filed the charge sheet.

The evidence of PW's 9 and 11 is only formal in nature.

36. Thus the evidence of PWs.1, 2, 4, 5, 6, 7 and 10 proves that the

appellants -AOs.1 and 2 accepted the gratification from PW1 as a motive

or reward for doing the official act of issuing the cheque to PW.1. Once

the acceptance is proved, the court is permitted to raise presumption under

Section 20 of the PC Act. The said provision states that when in any trial

of offence, which is punishable under Section 7 or 11 or 13 (1) (a), the

prosecution if proves that the accused had accepted or obtained or has

agreed to accept or obtain any gift, gratification either for him or for any

other person, the courts are permitted to raise a presumption under this

Section. The presumption under Section 20 is the presumption of law. The

use of the term 'shall presume' makes it an obligation on the courts to raise

the presumption, once the acceptance of gratification is proved. When the

prosecution proved the essentials for bringing presumption, the court has to

carry on the said basis unless the contrary is proved that any valuable thing

attained or received by the accused was received as a reward or motive or

for a consideration. The presumption raised is rebuttal in nature. The

accused can adduce evidence to the contrary. But the appellants failed to Dr.GRR,J

adduce any evidence to prove as to how the tainted currency notes came

into their possession. The theory of thrust taken by AO2 cannot be

believed particularly when the tainted currency was recovered from his

back side pant pocket, which is not a possible place of thrust by the

complainant. The hands of AO2 testing positive, proves that he received

the said amount and kept it in his back pant pocket.

37. On appreciating the evidence of the witnesses on record, this

Court does not find any illegality in the findings and observation of the trial

court in considering the guilt of the appellants and convicting them and

sentencing them as aforesaid. The sentences inflicted on the appellants is

also considered as appropriate.

38. Hence, the points No.1 and 2 are answered in favour of the

prosecution as against the appellants.

39. POINT No.(iii): In view of the above discussion, point No.3 is

answered upholding the judgment of the trial court confirming the

conviction and sentences rendered by it and dismissing the appeal.

40. In the result, Criminal Appeal is dismissed confirming the

conviction and sentence passed by the I Addl. Special Judge for SPE & Dr.GRR,J

ACB cases, City Civil Court, Hyderabad in C.C. No.35 of 2009 dated

23-7-2013 against the appellant No.1 - Accused Officer No.1 for the

offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of

Corruption Act 1988 and against the appellant No.2 - Accused Officer

No.2 for the offence under Section 12 of the Prevention of Corruption Act

1988. The bail granted to the appellants - accused officers during the

pendency of the criminal appeal shall stand cancelled. The appellants-

accused officers shall surrender forthwith before the Court below, and

suffer the rest of the sentence, as confirmed by this Court. In the event the

appellants-accused officers fail to do so, the Court below shall initiate steps

in accordance with law to apprehend and incarcerate them for the balance

period as per the confirmed sentence.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J July 29, 2022 KTL