Smt. P. Aruna, vs The State Of Ap Rep By Its Spl. Pp ...
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      THE HONOURABLE SRI JUSTICE N. TUKARAMJI

                CRIMINAL APPEAL No.317 OF 2007

JUDGMENT:

This appeal is directed against the judgment of conviction and

sentence dated 26.02.2007 in C.C.No.35 of 2003 on the file of the

Principal Special Judge for SPE & ACB Cases, City Civil Court,

Hyderabad, whereby, the appellant/convict/accused (hereinafter 'the

accused') was convicted for the charges under Sections 7 and 13(1)(d),

punishable under Section 13(2) of the Prevention of Corruption Act, 1988

(hereinafter 'the Act') and sentenced to undergo rigorous imprisonment

for one year and to pay fine of Rs.1,500/-, in default simple imprisonment

for one month for the offence under Section 7 of the Act; and also

sentenced to undergo rigorous imprisonment for one year and to pay fine

of Rs.1,500/- and in default to undergo simple imprisonment for one

month for the offence punishable under Section 13(2) of the Act. Both

the substantive sentences of imprisonment were directed to run

concurrently.

2. The prosecution case in brief is that on 19.06.2002, Nageswar

Rao/P.W.1 lodged a complaint/Ex.P1 against the Principal (hereinafter

'the school'), Andhra Pradesh Social Welfare Residential (Girls) School 2 NTR,J Crla_317_2007 and Junior College, Dharmaram (B), Dichpally Mandal, Nizamabad

District (hereinafter 'the accused officer'), stating that himself as

contractor supplied food materials to the hostel and for clearing the bills

of Rs.13,426/- for the month of April, 2002 and to show official favour,

the accused officer demanded bribe of Rs.3,000/- and on 18.06.2002

again demanded the bribe amount. Feeling resentful approached the Anti

Corruption Bureau.

2.2. Thereupon, the then DSP, ACB, Nizamabad/P.W.4, registered a

case in Crime No. 10/ACB-NZB/2002 and issued F.I.R/Ex.P12. Further,

instructed the complainant/P.W.1 to come on the next day i.e.,

20.06.2022 along with the proposed bribe amount and an accompanying

witness.

2.3. On 20.06.2002, the investigating officer/trap laying officer/PW-4,

secured the presence of mediators U.Jyothirmai/P.W.3 and Seetha Rama

Reddy and appraised them the contents of the complaint and the F.I.R.,

and on production of proposed bribe amount by the complainant/P.W.1,

noted the details and on the currency got applied phenolphthalein

powder. After explaining the formalities in laying the trap and conducting

pre-trap proceedings/Ex.P7, the complainant, accompanying witness,

mediators and others went to the school. As the accused officer was not 3 NTR,J Crla_317_2007 there, they returned to the ACB office. Later, all of them went to the

residence of the accused officer situated at Old NGO., Colony,

Nizamabad.

2.4. After set up, the complainant/P.W.1, entered the house and on

demand, paid the bribe amount in the presence of accompanying witness.

On signal of P.W.1, the trap laying officer and the mediators along with

the staff entered the house of accused officer and seized the tainted

amount found on turkey towel on sofa. The phenolphthalein test on the

hands and towel yielded positive result. Thereafter, rough sketch/Ex.P8

was drawn and post trap proceedings/Ex.P9 were conducted.

2.5. After examining the other witnesses and collecting the supply bills,

the then Inspector, ACB, Nizamabad/P.W.6, got recorded the statement

of complainant/P.w.1 before the Junior Civl Judge, Nizamabad under

Section 164 of the Code of Criminal Procedure (hereinafter 'the CrlPC')

and on completion of investigation, laid the final report.

3. On examination under Section 239 CrlPC, as the accusations were

denied, the trial Court framed the charges under Sections 7 and 13(1)(b)

of the Act.

4. To prove the charges, the prosecution examined the

complainant/P.W.1, supporting witness/P.W.2, mediator for pre and post 4 NTR,J Crla_317_2007 trap proceedings/P.W.3, investigating officer/trap laying officer/P.W.4,

prosecution sanctioning authority/P.W.5, the Circle Inspector, who got

recorded the statement of the complainant/PW-1 under Section 164

CrlPC/P.W.6 and the office Superintendent of the School/P.W.7 and got

marked Exs.P1 to P15 and material objects 1 to 8.

5. On the conclusion of the prosecution evidence, the incriminating

material was put to the accused officer under Section 313 CrlPC. The

accused officer had denied and filed a written statement reiterating that

the tainted amount was forcibly thrusted in hands by the complainant and

when the money fell on the ground, the complainant had taken the same

and kept on sofa. However, no defence evidence was placed.

6. The trial Court on considering the oral and documentary evidence

and other material on record, convicted and sentenced the accused officer

as mentioned above.

7. In appeal, the learned counsel for the appellant would submit that

the complainant and supporting witness/P.Ws.1 and 2 did not support

the prosecution case in the trial, which is cutting the very root of

prosecution case. Further, the averments of the complaint/Ex.P1 are

lacking particulars to conclude the factum of demand of the first instance

and on the alleged second date, the accused officer was not in the station, 5 NTR,J Crla_317_2007 due to other official duty. That apart, the defence version has not been

considered by the trial Court. It is settled proposition that mere recovery

of tainted money itself does not prove the offence until the demand is

unequivocally proved. Furthermore, the accused officer had received the

bills and forwarded to the office for processing and as per the evidence of

the office superintendent/P.W.7, the bills were not at all processed, hence

mis-using the official position for personal gain does not arise. These

aspects are establishing false implication, thus, prayed for acquitting the

accused officer.

8. The petitioner cited the authorities of (1) B.Jayaraj Vs. State of

Andhra Pradesh1, (2) N.Vijaykumar Vs. State of Tamilnadu2, (3)

P.Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh3

and (4) K.Shantamma Vs. State of Telangana4 and pleaded that the Hon'ble

three Judges Bench of Apex Court in the above referred authorities held

that mere recovery of bribe amount is not sufficient to prove the offence

under the Act and the proof of acceptance of bribe can only follow if

there is proof of demand and the presumption under Section 20 of the

Act can be drawn only on the proof of demand and acceptance of bribe.

    2014 (13) SCC 55
2 2021 (3) SCC 687
3 2015 (10) SCC 152
4 (2022) 4 SCC 574
                                           6                                        NTR,J
                                                                           Crla_317_2007

Mere acceptance and recovery of money would not be sufficient to prove

the charge of illegal gratification.

9. On the other hand, the learned standing counsel for ACB would

submit that though the complainant turned hostile, it is ipso facto not fatal

to the prosecution case. The signature of the complainant in the recorded

proceedings, the evidence of mediator/P.W.3 and the investigating

officer/P.W.4 are consistent and corroborating with each other. That

apart, the tainted amount had been recovered from the accused officer

which is substantiated by the phenolphthalein test. The defence had failed

to make out any material discrepancy in the evidence, thus the trial Court

had rightly recorded the finding of guilt, and consequently the conviction

is sustainable on all fours. That apart, the trial Court had leniently

considered the sentence. Therefore, there is no tenable ground for

interference and the impugned judgment deserves to be confirmed.

10. In these rival pleadings, the point that arises for determination is:

Whether the prosecution had proved the guilt of the accused officer under Sections 7 and 13(1)(d) of the Act beyond reasonable doubt ?

11. To prove the guilt of the accused officer, the prosecution must

establish that the accused officer demanded the complainant/P.W.1 the 7 NTR,J Crla_317_2007 bribe of Rs.3,000/- to extend favour of passing the bills by misusing the

official position and accepted the bribe amount, thus committed

misconduct.

12. The facts that, the accused officer was the Principal of the school,

the P.W.1 was vegetable supply contractor and the P.W.1 submitting bills

of April, 2002 for payment and the accused officer receiving the bills and

forwarding to the office for process, are not in dispute.

13. To prove the charges, the aspects to be proved are:

(a) the demand of bribe by the accused officer

(b) the accused officer receiving the bribe amount in pursuance of the demand;

(c) recovery of the bribe amount from the accused officer; and

(d) the demand for bribe is to extend a favour by abusing the official position.

14. In Jayraj v. State of Andhra Pradesh (1 supra) the Hon'ble Supreme

Court held that, it is settled position in law as per Section 7 that the

accused has to be proved beyond all reasonable doubts for the illegal

gratification. The demand of illegal gratification is sine qua non to constitute

offence and mere recovery of the currency note cannot constitute offence

under Section 7 of the Act. Further only proof of acceptance of illegal

gratification, the presumption can be drawn under Section 20 of the Act.

But, such gratification was received for doing or forbearing to do any

official act.

                                        8                                    NTR,J
                                                                    Crla_317_2007

15. In N.Vijayakumar v. State of Tamil Nadu (2 supra), the Hon'ble

Supreme Court held that while considering the case under Sections 7 and

13(1)(d) (i) and (ii) of the Prevention of Corruption Act it has to be

proved beyond reasonable doubt that accused voluntarily accepted the

money knowing it to be bribe. Absence of proof of demand for illegal

gratification and mere possession of recovery of currency notes is not

sufficient to constitute such offence. Further the presumption under

Section 20 of the Act can be drawn only after demand for acceptance of

illegal gratification is proved.

16. Similar view has been reiterated in the authorities P. Satyanarayana

Murthy v. District Inspector of Police, State of Andhra Pradesh(3 supra) and K.

Shanthamma v. State of Telangana (4 supra).

17. In the light of the above propositions, the material on record needs

examination.

18. To prove the demand of bribe, the prosecution put-forth the

complaint/Ex.P1 and the evidence of the complainant/P.W.1, the

supporting witness/P.W.2, the evidence of mediator/P.W.3 and the

evidence of trap laying officer/P.W.4.

19. At the outset, it is to be noted that the complainant/PW-1 and the

accompanying witness/PW-2, did not support the prosecution case in the 9 NTR,J Crla_317_2007 witness box. In their cross examination, except for suggestions, the

prosecution could not elicit any material fact. The other vital document is

complaint/Ex.P1. The complainant/ P.W.1 assertively stated that on the

dictation of the Deputy Superintendent of Police (DSP), Nizamabad, he

had written the contents of Ex.P1 and the contents thereof are false. In

this position, the statement of mediator/PW-3 is that the contents were

read over and the complainant/P.W.1 had accepted the same. Even

though reading over the contents of the Ex.P-1 and approval of the PW-1

is witnessed by the PW-3 and receipt of the report/Ex.P-1 by the trap

laying/investigating officer/PW-4 are accepted, the certitude of the

contents of the complaint/Ex.P-1 cannot be concluded as the PW-3 and

PW-4, at the best witnessed the acceptance of the PW-1, but not the

veracity of Ex.P-1 contents. For that reason, the first information

statement would only be material to corroborate or contradict the

statement of the maker. In the case on hand, as the PW-1 had abjured,

hence the statements in the complaint/Ex.P-1 cannot be relied to

conclude any fact.

20. With this exception, a further inquiry of the complaint/ExP1 is

disclosing two incidents of demand of bribe. It is also pertinent to note

that as per the complaint, the bills were submitted by P.W.1 on 10 NTR,J Crla_317_2007 02.06.2002 and complaint was lodged on 19.06.2002. The first incident

referred as about 15 days prior to the complaint/Ex.P1, meaning thereby,

about two days after filing of bills, the accused officer demanded for

bribe. However, no particulars as to the time, place and other attending

particulars at the time of the demand were mentioned.

21. The second demand was specified as on 18.06.2002. In this respect

the investigating officer/PW-4 in cross examination admitted that the

accused was on the other duty from 15.06.2002 to 23.06.2002. Even for

this episode, no existent details are referred to. Thus, lack of particulars

coupled with the fact of other duty on the date of alleged date of second

demand, is not inspiring confidence.

22. The other situation of demand is just before the trap proceedings at

the residence of the accused officer. In this regard, the prosecution

proposed the complainant/P.W.1 and supporting witness/P.W.2 as the

direct witnesses. As per the evidence of P.W.3 and the entries in

Ex.P7/pre-trap report, the supporting witness/P.W.2 remained at a

distance and the complainant alone met the accused officer. As

mentioned earlier, the P.Ws.1 and 2 resiled from the prosecution case.

Thus, their alleged statements recorded in post-trap proceedings/Ex.P9

are in any way helpful to prove the aspect of demand by the accused 11 NTR,J Crla_317_2007 officer just prior to the trap proceedings. Therefore, the material placed

by the prosecution is falling short to prove the factum of demand for

bribe by the accused officer beyond reasonable doubt.

23. To prove that the accused officer receiving the bribe amount apart

from the evidence of complainant/PW-1 and the accompanying witness

PW-2, the evidence of mediator/PW-3 and the trap laying officer/PW-4

are propounded. As per the evidence of PW-3 and PW-4, the trap

proceedings are recorded in the mediator's report/Ex.P-9. The PWs.3

and 4 have consistently stated that on receiving the pre-arranged signal,

they went into the house and immediately a woman constable caught hold

the forearms of the accused officer and the phenolphthalein test divulged

positive result and the tainted currency was found on turkey towel on

sofa.

24. Be that as it may, it is interesting to note that, in cross examination

the prosecution suggested the version that when the complainant/PW-1

went to the house, the accused officer got placed two chairs in verandah

and he sat on the window side in the chair. The accused officer came out

and after greetings sat on the chair placed towards stair-case and enquired

about the demanded bribe amount. On affirmation, the accused officer

assured that the work would be done on the next day, received the tainted 12 NTR,J Crla_317_2007 amount with right hand and held with both hands, went inside house and

when the complainant/PW-1 was about to leave and reached the gate of

the house, the accused officer requested him to have a cup of tea and

asked to wait and entered the kitchen. Meanwhile, the complainant/

PW-1 went to the gate and gave pre-arranged signal.

25. Nonetheless, in the mediators report/ Ex.P-9, it is specifically noted

that after the trap party, mediators and complainant and accompanying

witnesses reached near the house of the accused officer, the trap members

took vantage positions near the house and at 07:15 PM the complainant

entered into the house of the accused officer leaving the accompanying

witness in front of the shadow nearby the house and at 07:25 PM the

complainant came out from the house and gave pre-arranged signal.

Immediately, the trap party members and staff entered the house,

disclosed their identity and recorded the statement of the PW-1.

26. A juxtaposition of these versions with the rough sketch of scene of

offence/Ex.P-8 the verandah/portico is outside the house, opposite to

the gate. Thus, the version in the mediators' report that the

complainant/PW-1 entered into the house and came out of the house and

gave pre-arranged signal is undeniably at variance with the prosecution

suggested manner of happening to the complainant/PW-1 that the 13 NTR,J Crla_317_2007 accused officer came out of the house into verandah and there the bribe

amount was handed over. In addition, there is no reference in the

suggestion that the PW-1 moved towards the gate and at request of the

accused officer went back, before giving the pre-arranged signal. Further

to note, in the post trap proceedings/Ex.P-9, it is noted that the trap party

members were near to the house at vantage points. The mediator/PW-3

in cross examination stated that they were at a distance of about half

furlong i.e., 200 meters from the house of the accused officer. It is not

the prosecution version that the pre-arranged signal of the

complainant/PW-1 would be received by the accompanying

witness/PW-2 and he relays the signal to the trap laying party. Therefore,

in ordinary prudence it can be understood that in all probability the trap

party should have been in the visible range, unless on the signal, surprising

the premises would not be possible. In the circumstances, the variance in

the version of trap laying party as to the manner of occurrence is giving

rise to reasonable doubt on the proceedings.

27. Further, the spot explanation of the accused officer that the amount

was thrusted by the complainant in her hands and on pushing away, the

currency fell down and the PW-1 collected and kept the same on sofa.

This defence theory is impliedly explaining that giving the amount was in 14 NTR,J Crla_317_2007 the house and this version is contradicting with the PW-1's statement in

the post trap proceedings regarding the occurrence, even if it is taken into

account, as it is. To note, the PW-1, in the witness box had supported the

defence account.

28. Whatsoever, by the evidence of mediator and investigating officer,

finding the tainted currency in the house of the accused officer and by the

phenolphthalein test the accused officer touching the currency can be

believed.

29. Howsoever for the aforesaid, as the aspects of demand of bribe and

receipt of the amount, by the accused officer had remained uncertain and

mere recovery of the currency will not qualify the essentials of the

offence, benefit shall be extended in favour of the accused officer. In

effect, as the pivotal charge failed, the imputation that the accused

officer's demand for bribe to extend the favour by abusing the official

position stands implausible.

30. Resultantly, it shall be held that the trial Court failed to consider the

factual and legal aspects in proper perspective and therefore the impugned

judgment is liable to be set-aside.

31. In the result, the criminal appeal is allowed. The judgment of

conviction and sentence dated 26.02.2007 in C.C.No.35 of 2003 on the 15 NTR,J Crla_317_2007 file of the Principal Special Judge for SPE & ACB Cases, City Civil Court,

Hyderabad is hereby set aside and the appellant/accused officer is

acquitted of all charges. The fine amount if any paid shall be refunded.

As a sequel, miscellaneous petitions pending, if any, in this Appeal,

shall stand closed.

                                                     _________________
Date:17.11.2022                                       N.TUKARAMJI, J
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