State, vs Chukkapally Prasad,
2022 Latest Caselaw 5762 Tel

         THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

               CRIMINAL APPEAL No.1155 OF 2012


JUDGEMENT:

This Criminal Appeal, under Section 378 (3) & (1) of the Code

of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the State,

aggrieved by the judgment, dated 21.06.2012, passed in C.C.No.09

of 2006 by the First Additional Special Judge for SPE and ACB Cases

cum V Additional Chief Judge, City Civil Court, Hyderabad, whereby,

the Court below acquitted the Respondent / Accused Officer of the

offence under Sections 7 and 13(I)(d) r/w Sec. 13 (2) of Prevention

of Corruption Act, 1988 (for short, 'the Act').

2. Heard Sri T.L.Nayan Kumar, Learned Standing Counsel-cum-

Special Public Prosecutor for A.C.B. cases and Sri A.Phani Bhushan,

learned counsel for the Respondent / Accused Officer and perused

the record.

3. The case of the prosecution, in brief, is as follows:

The Accused Officer was working as Excise Inspector in the

Prohibition and Excise Station, Amangal in Mahabubnagar district by

the time of the alleged trap on 14.06.2005. On 06.06.2005, PWs.1

and 2 participated in the auction held in the Mahabubnagar district

for the annual lease for running the wine shops in Amangal village

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

and became the highest bidders for a total lease amount of

Rs.13,90,888-00. As per the terms of auction, they had deposited

an amount of Rs.4,65,000-00 as on the date of the auction towards

1/3rd amount of the highest auction bid amount for those two shops

and the remaining 2/3rd amount was to be paid within two days along

with the bank guarantees, duly filled application forms under Form

VI-A and also the blue prints of the shops wherein the businesses

had to be carried out. They had to submit these forms before the

SHO of the Excise Station, who had to forward the same to the Sub-

divisional Prohibition and Excise Officer, who had to be the further

scrutiny and to forward the same to the Superintendent, Excise

Department, Mahabubnagar for sanction. Accordingly, PW1 and 2

approached the A.O., being the SHO of the Excise and Prohibition

Station, Amangal on 06.06.2005 with their applications and blue

prints of the buildings, but, the AO demanded a bribe of Rs.4000-00

from them @ Rs.2000-00 for each shop in order to put his signatures

on the check memos. The AO took the check memos along with

other agreement forms under Form V-A submitted by PWs.1 and 2

and kept with him.

PWs.1 and 2 expressed their inability to comply with the illegal

demand of the A.O., but they persuaded the AO by contacting him on

phone from time to time. Finally on 12.06.2005, the AO directed

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

PW1 to meet him at Hyderabad on 13.06.2005 and, accordingly, PW1

met him and reiterated his persuasions by making plaintive entreaty.

Having considered the same, the AO reduced his demand to

Rs.3000-00 and asked PW1 to come with that money and meet him

at his office on 14.06.2005.

Having been pained and miffed by the conduct of the AO, PW1

went to the office of the DSP, ACB, Hydeabad and submitted Ex.P1

report at about 12.15 p.m. on 13.06.2005 and PW6 who received

Ex.P1, entrusted to PW7 for making discreet enquiries to know about

the antecedents of the AO and in the mean time, directed PW1 to

come again to the office at about 2.00 p.m. on 14.06.2005 along

with the alleged bribe amount demanded by the A.O. After getting

the preliminary report from PW7 about the malpractices and the

suspectable conduct of the A.O., PW6 was initially satisfied with the

correctness of Ex.P1 report and, accordingly, registered Ex.P16 FIR

at about 7.00 a.m. on 14.06.2005.

PW6 got summoned PW3 and DW3, working in the Commercial

Tax Department in Hyderabad, in order to take them as mediators

for the intended trap to be laid over the A.O. Thereafter PW1

appeared before PW6, he was introduced to the mediators and vice

versa and PW6 explained the method intended to be followed by him

in order to trap the erring officer and also demonstrated the scientific

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

test of mixing the object tainted with phenolphthalein powder with

the sodium carbonate mixture showing the transmission of the colour

into pink and, thereafter, preserved the samples under MO1 and 2.

After getting the currency notes to a tune of Rs.3,000-00 produced

by PW1, which were to be offered to the AO on his demand for bribe.

PW6 got them applied with the phenolphthalein powder through a

constable and got it properly secured in the shirt pocket of PW1,

while cautioning him not to touch the same and also further

instructed him to give a signal by way of giving a missed call to the

cell phone of one Sri Anand Kumar, the ACB Inspector being a

member of the trap party after the bribe amount was accepted by

the AO and after getting all these events recorded under Ex.P6 pre

trap proceedings, the trap party started for Amangal.

After they reached the excise station, Amangal, PW1 alone

went into the station while other trap party members settled at

vantage positions, but PW1 returned and informed that the AO was

not present in the excise station. PW1 contacted the AO on phone

and came to know that he was in Mahabubnagar and was returning

to Amangal via Kalwakurthy. The AO further asked PW1 to be ready

with the bribe amount at the medical shop of PW1 near bus stand in

Amangal. Accordingly, the trap party re-arranged their plan to trap

the AO at the place and PW1 was asked to wait for the AO in his

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

medical shop from 7 p.m. onwards and the members of the trap

party took vantage positions near by the medical shop of PW1.

At about 7.15 p.m., the AO entered into the medical shop of

PW1 and after receiving the tainted currency notes of Rs.3,000-00

from PW1 with his left hand, put the same in his left shirt pocket

and, thereafter, put his signature on the blank VI-A forms of PW1

and 2. Following the pre-planed signal given by PW1, PW6 and other

trap party members surrounded the AO and after PW6 introduced

himself to the AO, he asked the AO to wash his hands in the sodium

carbonate solution prepared by him and the solution in which the left

hand of AO was washed turned into pink colour, which was preserved

under MO3, and the solution wherein his right hand was washed did

not change into any colour and it was preserved under MO4, MO7

tainted currency notes were seized from the possession of the AO

and their numbers tallied with the currency note numbers noted in

Ex.P6. The inner linings of the shirt pocket of the AO wherein the

tainted currency notes were kept were also washed in the sodium

carbonate mixture and that turned into pink colour and the same was

preserved under MO5. MO6 is the shirt of the AO which was also

seized. On finding a big mob gathered around the shop thereby

causing inconvenience in reducing the proceedings into writing, PW6

and other trap party members decided to move to the nearby police

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

station at Amangal for the preparation of a detailed report. Before

that, PW1 was summoned by PW6 and enquired as to what had

happened and he revealed the actual occurrence. The version of the

AO was also noted. The Accused Officer was taken to the police

station, Amangal, where Ex.P10 report of the post trap proceedings

was prepared by PW3. PW6 visited the Excise Station, Amangal,

from where he seized Ex.P12 to P14 under a cover of Ex.p11. The

AO was arrested and was produced before the court for the judicial

remand and, subsequently, he was enlarged on bail. PW7 and 8

proceeded with further investigation and, after the completion of the

investigation, PW8 filed the charge sheet alleging that the AO

committed the offences under Sections 7 and 13(I)(d) r/w Section

13(2) of the Act.

4. The case was taken on file under Sections 7 and 13(1) (d) r/w

Section 13 (2) of the Act and the Accused Officer was tried for the

said offences. The Accused Officer pleaded not guilty for the charges

and claimed to be tried.

5. During the course of trial, the prosecution examined P.Ws.1

to 8 and got exhibited Ex.P.1 to P.16 and M.Os1 to 8 were also

marked. On the other hand, the Accused Officer got examined

D.Ws.1 to 3 and got marked Exs.D.1 to D.7.

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

6. The learned trial Court after analyzing the entire material both

oral and documentary available on record, came to the conclusion

that the Prosecution failed to bring home the guilt of the Accused

Officer beyond all reasonable doubt and accordingly acquitted the

Accused Officer of the charged offences.

7. As stated supra, aggrieved by the judgment, dated

21.06.2012, the State filed the present criminal appeal.

8. Sri T.L.Nayan Kumar, the learned Standing Counsel-cum-

Special Public Prosecutor for A.C.B. Cases submitted that the trial

Court failed to examine the evidence available on record in right

perspective and erred in acquitting the accused officer. He further

submitted that the prosecution has discharged its burden by proving

its case by the witnesses P.W.1, complainant who supported the case

of prosecution with regard to demand, acceptance of bribe amount,

the PW3 mediator supported the prosecution case with regard to

phenolphthalein test proved positive, recovery of tainted amount

from the physical possession of the accused officer and of official

favour documents recovery from the accused officer. He further

submitted that PW5 supports the prosecution who speaks about the

official functions and official pending with the accused and PW5 who

is the trap lying officer conducted pre-trap and post-trap proceedings

given evidence with regard to receiving the complaint from PW1,

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

supported the prosecution case about acceptance and recovery of

tainted currency from the accused officer and pendency of official

favour with the accused officer, however the learned Special Judge

given benefit of doubt and acquittal of the accused officer is contrary

to law, weight of evidence and probabilities of the case. He further

contended that the application was submitted to Respondent / A.O.

on 06.06.2005 along with Ex.P2 to P4 and P8 but whereas in Ex.P2

and Ex.P3, the date of purchase of stamp papers was mentioned as

07.06.2005 and the said contradiction is fatal to case of prosecution

and in that regard PW1 clearly deposed in his chief examination that

the respondent / A.O. accepted the application even without the

Ex.P2 and P3 being enclosed, as such the learned Judge failed to

observe that no suggestion was given to PWs.1 or 2 that Ex.P2 and

P3 were also submitted on 06.06.2005. He further would submit that

the trial Court erroneously held that the entries in Ex.P4 and P8

(check memos) are indicating that the required bid amounts of 1/3rd

were deposited on 01.06.2005 but the particulars in Ex.D4 and D5

are not in consonance with the Ex.P4 and P8 and in that regard the

learned Judge ought to have observe that the evidence of PW.5 is

very clear on the aspect who deposed that PWs.1 and 2 have

deposited DDs of the 1/3rd amount on the date of auction and

subsequently remitted the DDs by way of challans, therefore the

findings of the learned Judge are contrary to the evidence available

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

on record, as such the order under appeal is liable to be set aside by

holding that the Respondent / A.O. is punishable for the offences

charged against him.

9. On the other hand, Sri A.Phani Bhushan, learned counsel for

the Respondent / Accused Officer submitted that the trial Court had

rightly observed that the prosecution failed to bring home the guilt of

the Accused Officer beyond all reasonable doubt since in criminal law

jurisprudence, it is paramount consideration of the State that the

guilt of the accused must be proved beyond all reasonable doubt,

lest, the accused must be given benefit of doubt. In the case on

hand, the trial Court in its findings and reasons given in the

impugned judgment has categorically stated that the prosecution

failed to prove the guilt of the accused beyond all reasonable doubt

and had rightly acquitted the accused officer, and hence there are no

merits in this appeal and accordingly prayed to dismiss the appeal.

10. Now the point for consideration is:

"Whether the trial court has committed any error in acquitting the Accused Officer? If so, whether there are any grounds to interfere with the impugned judgment?

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

11. As seen from the record, as well as the impugned judgment, it

is to be seen that the defence is that Exs.P.2 to P.4 and P.8

submitted by P.Ws.1 and 2 are not in correct lines and hence the

Accused Officer did not accept to sign on them and that the shops,

where P.Ws.1 and 2 intended to carry out the business were not in

Ward Nos.15 and 9 as required under Ex.D.2 and on 14.06.2005

P.W.1 repeatedly called him to come to his friend's shop where he

swiftly thrusted some amount into his shirt pocket and while P.W.1

was pushing the amount, it came into contact with his left hand in

negation, thereby the test resulted positive.

12. It is the allegation that P.W.1 and 2 handed over the stamp

papers to the Accused Officer on 06.06.2005. But the documents i.e.

Exs.P.2 to P.4 and P.8 which were alleged to have been handed over

to the Accused Officer bear the date 07.06.2005 thus making it

impossible for P.W.1 to have handed over them to the Accused

Officer. As seen from Exs.D.4 and D.5, that 1/3rd amounts were not

deposited by P.Ws.1 and 2 as required under Rule 18 of Ex.D.2 and

in violation of Rule 20, P.Ws.1 and 2 have not deposited 2/3rd

amounts within seven days from the date of the auction and also the

bank guarantees and blue prints. The bank guarantee was also

shown to have been furnished on 14.06.2005 in total violation of

Rule 20 of Ex.D.2, which is evident from Ex.D.7. The house numbers

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

shown by P.Ws.1 and 2 are not tallying with the ward numbers of

Amangal Village.

13. P.W.5 the Assistant Excise Commissioner, Enforcement

deposed that he simply acted upon the recommendations of his

subordinates and signed in the counter part agreements and issued

licenses in favour of P.Ws.1 and 2 without verifying the door

numbers of the shops. This evidence of P.W.5 is supporting the

version of the Accused Officer.

14. There are several irregularities and infractions of the Rules by

violating the procedure contained in Ex.D.2 in accepting Ex.D.4 by

P.W.5 and the explanation given by P.W.5 is not satisfactory. As

held by the Hon'ble Apex Court in G.V.Nanjundiah Vs. State Delhi

Administration {(1998) SCC (Crl) 77} and also relied on by the

learned trial Court, where the prosecution's allegation of demand of

bribe was false, the allegation of payment of bribe to and the

recovery of the same from the Accused Officer must be viewed with

suspicion. Here in the case on hand, the prosecution failed to

establish the very establishment of the shops by P.Ws.1 and 2 in the

door numbers mentioned in the Form VI since they are found to be

incorrect on verification that the alleged door numbers do not exist in

the ward numbers mentioned by them. So the case of the defence

that P.Ws.1 and 2 have misrepresented before the authorities in

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

mentioning the door numbers. So the very root of the prosecution

case is doubtful. In such circumstances, demanding of bribe by the

Accused Officer also creates some suspicion. Further more, it is

admitted by P.W.5 that the Accused Officer was not the sanctioning

authority and he cannot regularize the irregularities if any committed

by P.Ws.1 and 2. So, when it is the case of the prosecution that

Accused Officer is not the competent authority to regularize the

irregularities committed by P.Ws.1 and 2, question of demanding

bribe for a work which is not within his domain is doubtful. In such

circumstances, the observation of the learned Court below that the

tenor of the record shows that P.W.1 and 2 might have got some

blessings and support of some higher excise officials and since the

Accused Officer was standing in the way of their obtaining licences

and sanction by pointing out at the flagrant violation of the rules and

procedure, a trap might have been cleverly laid in order to remove

the Accused Officer from the way holds water.

15. PW.2 who is a material witness to the prosecution being a

licence holder, turned hostile to the prosecution case, since he stated

that the Accused Officer never demanded any bribe from him and he

was not aware of the bribe offered to the Accused Officer by P.W.1.

In those circumstances, the very demand of bribe, offering and

recovery of tainted amount from the Accused Officer creates doubt.

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

16. Further, it is the case of the prosecution that the Accused

Officer admitted his guilt. But any confession by the Accused Officer

in confinement in a police station has no value since the explanation

of the Accused Officer to P.W.6 was seemingly recorded in the police

station while drafting Ex.P.10 - Post Trap proceedings.

17. From a glaring observation of the entire record, it is

established that the prosecution failed to prove the guilt of the

Accused Officer with substantial and constructive evidence that he

had demanded and accepted the bribe. Since the prosecution failed

to establish its very root of the case about demand and acceptance,

presumption under Section 20 of the Act cannot be drawn. Since the

demand is not constructively proved, acceptance and recovery of the

same cannot be believed. There are so many omissions and

contradictions in the evidence of prosecution witnesses and the

defence could succeed in establishing the same.

18. For the foregoing discussion, this Court is of the view that the

prosecution failed to establish the guilt of the accused for the

offences charged under Sections 7 and 13(1) (d) r/w 13 (2) of the

Act, 1988 and accordingly he is entitled to acquittal.

19. In the result, the appeal is dismissed, confirming the judgment

dated 21.06.2012, passed in C.C.No.09 of 2006 by the First

Justice Juvvadi Sridevi Crl.A.No.1155 of 2012

Additional Special Judge for SPE and ACB Cases cum V Additional

Chief Judge, City Civil Court, Hyderabad.

Miscellaneous petitions, if any, pending in this Criminal Appeal

shall stand closed.

___________________ JUVVADI SRIDEVI, J

11th November, 2022