V.Ramaiah, vs State Rep By Inspecotr Of Police ...
2022 Latest Caselaw 4405 Tel

           THE HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.999 of 2007

JUDGMENT:

1. The appellant is convicted for the charges under Sections 7

and Sections 13(1)(d) r/w Section 13(2) of the Prevention of

Corruption Act, 1988 (for short 'the Act of 1988') and sentenced

to undergo rigorous imprisonment for a period of two years

under each count vide judgment in C.C.No.12 of 2003, dated

02.08.2007 passed by the Additional Special Judge for SPE &

ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same,

present appeal is filed.

2. The case of the prosecution is that the appellant was the

Senior Assistant in the office of the Assistant Audit, Suryapet,

Nalgonda District. P.W.1/defacto complainant was working as

bill collector of Grampanchayat, Khanapur village of Kodad

Mandal. The District Panchayat Officer, Nalgonda issued orders

on 03.01.2002 to the Sarpanch of Khanapur Grampanchayat to

pay allowances to P.W.1 as per G.O.Ms.No.557. The Sarpanch,

Khanapur sent a letter to the Assistant Audit Office, Suryapet

requesting for pay fixation of P.W.1 and handed over the said

letter along with service book and pay fixation bill to the

appellant. Appellant after scrutinizing, calculated and prepared

pay fixation bill for Rs.39,876/- and demanded an amount of

Rs.15,000/- as bribe to send it to the Assistant Audit Office for

approval. However, the said bribe was reduced to Rs.12,000/-.

3. It is further the case that P.W.1 paid an amount of

Rs.3,000/- to the appellant on 18.02.2002 at his house for his

approval. The appellant demanded the remaining amount of

Rs.9,000/- and directed P.W.1 to pay, failing which the bill

would not be processed. Aggrieved by the demand, P.W.1 filed

complaint Ex.P1 on 01.03.2002.

4. The Trap was arranged on 02.03.2002. The DSP

summoned independent mediators, Inspector and complainant

and conducted pre-trap proceedings under Ex.P5 at ACB Office

in Nalgonda. After conclusion of pre-trap proceedings the trap

party members started at 11.00 a.m and proceeded to the house

of the appellant.

5. P.W.1 entered into the house of the appellant and found

that the appellant was not present. He then made a phone call to

the appellant, who came to his house at 12.40 p.m. PW1

entered into the house and ten minutes later at 12.50 p.m, the

complainant came out of the house and gave pre-arranged signal

indicating acceptance of bribe by the appellant. The trap party

entered into the house and conducted tests on the hands of the

appellant, which turned positive. When questioned about the

amount, the appellant opened the right side drawer of his table

and gave the amount. On further questioning, the appellant

stated that the records which were in his custody were handed

over by bill collector of Mogalai Kota to verify regarding the

calculation being correct or not. The appellant also stated that

the amount of Rs.9,000/- from P.W.1 was obtained as a loan.

The post trap proceedings were drafted under Ex.P11.

6. After conclusion of trial, the ACB filed charge sheet for the

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

Act and after conclusion of trial, having examined P.Ws.1 to 11

and marking Exs.P1 to P18 produced by the prosecution and

also examining D.Ws.1 to 6 and Exs.D1 to D34 and Exs.X1 to

X5, the learned Special Judge convicted as stated supra.

7. Learned counsel for the appellant submits that both the

dates i.e., 20.01.2002 and also 18.02.2002, which is the date of

second demand and part payment of Rs.3,000/-, the appellant

was at audit camp at Ganapavaram Gram Panchayat. Ex.D9

tour program, Ex.D10-audit report, Ex.D11-TA bill for January

of Rs.20,000/- and attendance register were marked to show

that the appellant was on tour on the said date. D.W.5, who is

the Sarpanch of Ganapavaram village also stated that from

19.01.2002 to 28.01.2002, the appellant was on audit duty,

which is evidenced under Ex.X1.

Further on 18.02.2002, P.W.1 was in the office of STO,

Kodad for encashment of Cheque issued for Rs.20,000/-. During

cross-examination, P.W.1 stated that he was collecting cheque

from his office at Khanapur. D.W.3, Sarpanch of Kanapur village

was examined along with P.W.1 on the said date when the

cheque was encashed. Further, the appellant was on audit camp

as stated by D.W.6 at Dharampuram Gram Panchayat Exs.X4

and X5 mediators of tour program and Ex.P13 attendance

register and the evidence of P.W.4 also state that the appellant

was on audit duty on 18.02.2002.

8. Learned counsel further submits that when the appellant

was not available in his house on 18.02.2002 and P.W.1 was at

the office of STO Kodad withdrawing his salary, the question of

meeting and making part payment on 18.02.2002 does not arise.

Finally, he submits that there was no official favour, which was

pending with the appellant. According to P.W.4, one B.Sunder

Reddy was entrusted with Kodad Mandal as per Office Order

Ex.D8 for the year 2001-2002. The audit report Ex.D3 of the

said B.Sunder Reddy and Ex.D9 tour programme would go to

show that the appellant was not concerned with the Khanapur

gram panchayat. He also submits that P.Ws.3, 4, 5 and 6 stated

that they submitted bills to the appellant, which cannot be

believed for the reason of; i)The duty of Kandibanda gram

panchayat was allotted to one Rathan Singh as per Ex.D8 Office

Order; ii) the motive for false implication is that the appellant

conducted audit of Khanapur gram panchayat where P.W.1 was

working during 1997-1998 and reported that his appointment

was irregular and he should be removed from service and his

salaries recovered; iii) Ex.D14 is the audit report for the year

1997-1998. Similarly, the appellant conducted the audit of

Mogalai Gram Panchayat, where PW.3 was working and

submitted a report that his appointment was irregular and he

should be removed from his service. Ex.D27 is the audit report

for 1996-1997; iv) The appellant conducted audit of Gondriyala

Gram Panchayat where P.W.5 worked for the year 1996-1997

and reported that his appointment was irregular and his salary

should be recovered. Ex.D17 is the audit report for 1996-1997.

9. Learned counsel for the appellant submits that there is a

strong motive for the witnesses to speak against the appellant,

which is apparent from the record, as such the appellant is

entitled to be acquitted for the offence alleged.

10. In support of his arguments, learned counsel for the

appellant relied upon the following judgments; i) Muralikonda

v. State of A.P1, ii) N.Vijayakumar v. State of Tamil Nadu2;

iii) Gulam Mahmood A.Mahek v. State of Gujarat3;iv) Sat

2002 (2) ALD (Crl.) 249 (AP)

2021 Cri.L.J 1353

AIR 1980 Supreme Court 1558

Paul v. Delhi Administration4; v) P.Satyanarayana Murthy v.

District Inspector of Police5.

11. On the other hand, learned Special Public Prosecutor

submits that there is rampant corruption in audit offices and the

appellant had demanded nearly 50% of the arrears that were due

to P.W.1. In spite of paying the amount of Rs.3,000/-, the

appellant did not complete his work and demanded remaining

amount of Rs.9,000/- to be paid. Aggrieved by the same,

complaint was lodged. Since the appellant miserably failed to

discharge his burden, the conviction cannot be interfered. In

support of his contention, he relied upon the following

judgments ; i) Kanshi Ram v. State of Punjab6; ii) State of A.P v.

V.Vasudeva Rao7; iii) T.Shankar Prasad v. State of A.P8.

AIR 1976 Supreme Court 294

AIR 2015 Supreme Court 3549

(2005) 12 Supreme Court Cases 641

(2004) 9 Supreme Court Cases 319

(2004) 3 Supreme Court Cases 753

12. The appellant has produced evidence that on 20.01.2002

on the date of first demand, the appellant was on audit camp at

Ganapavaram Gram Panchayat and marked Exs.D9 to D11 to

prove the same. Ex.P13 is the Attendance Register, which also

indicates that the appellant was on tour. He has examined the

Sarpanch of Ganapavaram Gram panchayat and also marked

Exs.X1 to X3, which proves presence of appellant at

Ganapavaram. On the second date of demand i.e., 18.02.2002

also, the appellant examined D.W.3 Sarpanch to state that P.W.1

was with DW3 at Kodada for collecting his salary. He further

examined D.W.6 to show that that the appellant was at audit

camp at Dharampuram Gram Panchayat and marked Exs.X4

and X5 which are cash book and tour program, the attendance

register Ex.P13 also indicates that the appellant was on tour on

18.02.2002.

13. The said documentary evidence would go to show that on

both the dates when the alleged demand was made and part

payment was made in the house of the appellant, the appellant

was on audit duty at different places. Further P.W.1 was at

Kodada withdrawing his salary on 18.02 2002. In the said

circumstances, the timing of payment and that appellant was

available in his house has to be established by the prosecution.

More so for the reason of PW1 also being at Kodad withdrawing

his salary. During the course of cross-examination PW1 stated

that he met appellant at 11AM, which is highly improbable in the

above mentioned circumstances. In view of the documentary

evidence available on record, it cannot be said that the appellant

was available in the house on both the dates.

14. On the date of trap, P.W.1 stated that the amount of

Rs.9,000/-was received as a loan, which was sent by D.W.1 and

the same is mentioned in Ex.P11, the post trap proceedings. The

spontaneous explanation regarding the loan being given was

explained in detail during the course of trial by examining

D.W.1. He stated that he sent the said amount through P.W.1,

who was his partner as per Ex.D34 registration of finance

company.

15. P.W.4, who is the Assistant Audit Officer stated that as per

Ex.D8 office order, B.Sunder Reddy was entrusted with Kodad

Mandal during 2001-2002. Khanapuram Gram Panchayat of

P.W.1 was under said Sunder Reddy as per Ex.D8 office order. It

is borne by record that the appellant had reported that the

appointment of P.Ws.1, 3 and 5 was irregular and they should be

removed from service and salaries recovered. The said audit

reports of P.W.1 was marked as Ex.D14, which report is against

P.W.3 and marked as Ex.D27 and the audit report against P.W.5

was marked as Ex.D17.

16. In the present case, the appellant had provided

documentary proof to show that he was not present on the both

the dates of payment. Further he was not responsible for the

audit of Ganapavaram Gram Panchayat of P.W.1, but it was one

Sundar Reddy. On the date of trap, the spontaneous

explanation was given that the amount was taken as loan and

appellant examined D.W.1 to prove the same. The audit reports

are marked showing that the appellant had suggested that the

appointments of P.Ws.1, 3 and 5 are irregular.

All the circumstances regarding the two demand dates,

pendency of work, explanation given during post trap

proceedings and the reports that were made by the appellant

against P.W.1 cumulatively give rise to a strong suspicion that

that the appellant was implicated in the said case. Since the

prosecution has failed to prove the demand beyond reasonable

doubt and the appellant has discharged his burden of proving

his defence by examining defence witnesses with corresponding

documentary proof, the benefit of doubt has to be extended to

the appellant.

17. In view of the foregoing discussion, the conviction recorded

by the learned Sessions Judge in CC No.12 of 2003, dated

02.08.2007 is set aside. Since the appellant is on bail, his bail

bonds shall stand cancelled.

18. Accordingly, Criminal Appeal is allowed.

_________________ K.SURENDER, J Date: 06.09.2022 kvs

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.999 of 2007

Dated: 06.09.2022

kvs