Endla Mallesh vs The State Of Acb, Warangal Range
2022 Latest Caselaw 4559 Tel

     HIGH COURT FOR THE STATE OF TELANGANA
                      AT HYDERABAD
                            *****

            Criminal Appeal No.1404 OF 2007

Between:

Edla Mallesh.                             ... Appellant
                          And

The State ACB, Warangal Range,
Rep. by its Spl.Public Prosecutor,
High Court of AP, Hyderabad.            ... Respondent
DATE OF JUDGMENT PRONOUNCED: 13.09.2022

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?



                                       _________________
                                       K.SURENDER, J
                                      2


          * THE HON'BLE SRI JUSTICE K.SURENDER
                     + CRL.A. No.1404 of 2007
% Dated 13.09.2022


# Edla Mallesh                                   ... Appellant

                                And

$ The State ACB, Warangal Range,
Rep. by its Spl.Public Prosecutor,
High Court of AP, Hyderabad                     ..Respondents

! Counsel for the Appellant: Sri D.Purnachandra Reddy.


^ Counsel for the Respondent: Sri T.L.Nayan Kumar,

                                    Special Public Prosecutor for ACB
>HEAD NOTE:

? Cases referred
1
  (1978) 4 Supreme Court Cases 32

2 1963 Supp(1) SCR 485

3 (2004) 9 Supreme Court Cases 333
                                  3


THE HON'BLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.1404 of 2007

JUDGMENT:

1. The appellant is convicted and sentenced to undergo

rigorous imprisonment for a period of six months for the

charge under Section 7 of the Prevention of Corruption Act,

1988 (for short 'the Act of 1988') and also sentenced to

undergo rigorous imprisonment for one year for the charge

under Section 13(1)(d) punishable under Section 13(2) of the

Act of 1988, vide judgment in C.C.No.54 of 2003, dated

28.09.2007 passed by the Principal 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 P.W.1 is an

agriculturist running a small flour mill. A capacitor to control

the electricity supply was installed to his electricity service

connection. One lineman of his locality saw his electricity bills

and informed that the capacitor charges were being levied in

the electricity bills and suggested him to meet the Assistant

Engineer in the department. The AE inspected the house and

having found that the capacitor was installed, left the house.

Thereafter, P.W.1 met the appellant, who was working as UDC

in the office and informed that Rs.2,350/- was paid in excess

for capacitor and letter was addressed vide Ex.P1 to the

Assistant Accounts Officer, Warangal. The appellant after

receiving the said letter Ex.P1, demanded an amount of

Rs.1,000/- since P.W.1 was being benefitted by Rs.2,350/-.

Aggrieved by the said demand on 02.04.2002, a complaint

Ex.P2 was given to the ACB which was written by P.W.2.

3. The trap was arranged on 04.04.2002. P.W.1 produced

tainted currency and after concluding pre-trap proceedings

Ex.P6 in the office of ACB, the trap party went to the office of

the appellant around 1.30 p.m on the said date. P.W.1 entered

into the office and when demanded, handed over an amount of

Rs.1,000/- and came out and relayed pre-arranged signal to

trap party indicating acceptance of bribe. The trap party

entered and the DSP asked the appellant to rinse his hands in

the sodium carbonate solution. The said solution turned

positive for both hands. When questioned, the appellant stated

that due to oversight, an amount of Rs.2,779.24 ps was

calculated as in excess and sought to be adjusted in the

subsequent bills, for which reason, an amount of Rs.1,000/-

was asked as bribe and accordingly, accepted the said

amount.

4. After conclusion of post trap proceedings Ex.P11, the

investigation was handed over to Inspector and after

concluding investigation, the Inspector filed charge sheet.

5. Learned counsel for the appellant submits that P.W.1

has filed a false complaint when capacitor charges were not

being collected from P.W.1. According to P.W.1, appellant was

a billing clerk and he had no power to adjust excess payment

if any or to waive the charges. The reason for filing the

complaint is that power to the flour mill of the

complainant/P.W.1 was disconnected for non payment of bill

in February, 2002 and suspecting that the appellant was

responsible for disconnection, P.W.1 has falsely implicated

him in this case. Lastly, learned counsel submits that the

sanctioning officer/P.W.8 who granted sanction was

Superintending Engineer of A.P.TRANSCO, who was not

competent to remove the appellant from his service as such,

the sanction was bad in law. Since the appellant was tried

without a valid sanction, the trial is void. He also submits

that During Section 164 Cr.P.C statement P.W.1 stated that

only Rs.500/- was given to the appellant and stated that he

would pay remaining Rs.500/- later. In support of his

contentions, the counsel relied on the following judgment: i)

Parmanand Dass v. State of Andhra Pradesh1 and argued that

since P.W.8 was not competent authority to remove the

appellant from his service, the sanction accorded is void.

6. On the other hand, learned Special Public Prosecutor

submits that during the post trap proceedings, the appellant

had accepted that he has received amount towards bribe, for

which reason, the burden shifts on to the appellant and the

appellant failed to discharge his burden, as such, the

conviction cannot be interfered with. Further no prejudice is

caused assuming that the sanction was not granted by the

competent authority. In support of his contentions he relied

on i) Dhanvantrai Balwantrai Desai v. State of Maharashtra2

and A.Abdul Kaffar v. State of Kerala3 and argued that since

the appellant did not give any defence as to the receipt of the

amount, the conviction cannot be interfered with.

7. P.W.1 has knowledge about the appellant being

incompetent to waive any capacitor charges, as admitted

during his cross-examination. He further admitted that the

(1978) 4 Supreme Court Cases 32

1963 Supp(1) SCR 485

(2004) 9 Supreme Court Cases 333

appellant had no power to adjust excess payment. In the said

circumstances, when P.W.1 was aware that the appellant was

not competent to either waive or adjust surcharge or adjust

any excess amount to be paid, the bribe amount demanded

and subsequent payment to the appellant is doubtful. No

prudent person having knowledge that a particular public

servant is incompetent or has no power to do such official act

that was requested by a person, the question of agreeing to

pay bribe amount or even asking such public servant to do the

said official work does not arise. When it is known to a person

that no purpose would be served if a bribe is given, the said

person would never venture into parting any amount as bribe.

8. P.W.4 had stated that a letter Ex.P8 was addressed on

22.12.2000 to delete the capacitor chares. In fact, in the

month of December, 2000, P.W.1 produced Ex.P3 bills before

P.W.4 to verify that capacitor chares were being levied,

addressed the said letter Ex.P8. P.W.6, who was AAE stated

that he provided Ex.P1 letter and handed over to him. In the

cross-examination P.W.6 admitted that he was aware that the

capacitor charges were stopped on the electricity bills of P.W.1

from 2001 onwards.

9. P.W.6 who provided Ex.P1 admitted that the service

connection of PW.1 was disconnected from February, 2002 for

non-payment of bills. P.W.1 admitted that he used to pay

electricity bill amount to the appellant. He further admitted

that the appellant was not competent person to either levy any

surcharge or adjust any surcharges. According to P.W.6,

levying surcharges were stopped from January, 2001. In the

said circumstances, the demand made by the appellant

becomes doubtful. For the said reason of disconnection of the

electricity connection to P.W.1's flour mill, P.W.1 lodging

complaint against the appellant holding him responsible for

the power disconnection cannot be said to be improbable.

10. Under Section 19(1)(c) of the Act, no Court shall take

cognizance of an offence under Sections 7 and 13, except the

previous sanction of the authority competent to remove such

public servant from his office. P.W.8 was the then

Superintendent Engineer of AP TRANSCO, who gave sanction

order Ex.P13. In Ex.P13, it is mentioned that he was the

person competent to remove the appellant from his service, as

such, in exercise of his powers conferred under Section 19(1)(c

) of the Act, he accorded sanction. During his examination

before the court, P.W.8 admitted that he was not competent to

remove the appellant from his service. Extract of the question

which was put to P.W.8 and Court recording demeanor :

"Question: are you aware of the fact that an officer who can remove the AO from his services can alone accord prosecution sanction orders?

Ans: I was under impression that I was competent to issue such a prosecution sanction orders".

The witness gave the said answers after taking considerable time.

11. Sub-section (3) to Section 19 starts with a non-

obstante clause and prohibits reversal or alteration of any

finding, sentence or order passed by a Special Judge, on the

ground that the sanction order suffers from an error,

omission or irregularity, unless of course the court before

whom such finding, sentence or order is challenged in

appeal or revision is of the opinion that a failure of justice

has occurred by reason of such error, omission or

irregularity. Section 465 of Cr.P.C. is a similar provision

which prohibits reversal of finding or sentence when there is

an irregularity in grant of sanction unless a failure of justice

has occasioned thereby.

12. P.W.8, who was not competent to grant sanction, has

accorded sanction stating that he was the person competent to

remove the appellant from his service, which admittedly is

incorrect. In the back ground of the case wherein the

capacitor surcharges were already deleted and the official

witnesses stated that no such surcharge was being levied from

February 2001, which was evident from the documents filed

under section 207 of CRPC before Court, collected during

investigation, the question of demand does not arise. The

subsequent admissions during cross-examination of witnesses

during trial also disclose that 'demand' was not proved. If the

entire file was placed before the competent authority on proper

application of mind, the competent authority may have

refused to sanction prosecution in the background of the

discrepancies in the prosecution case and the very basis for

demand is belied by documents filed by prosecution. In the

said circumstances, it can be said that the appellant was

prejudiced for the reason of not placing the file granting

sanction before the competent authority, who is the Chairman

and Managing Director of APTRANSCO.

13. Though the incompetence of the sanctioning authority

was brought to the notice of the Special Judge during cross-

examination of PW8, the Special Judge erred in finding that

the CMD of TRANSCO had authorized PW8 to grant sanction,

which is contrary to EXP13 sanction order in which there is

no mention of any such authority. In fact it is mentioned that

PW8 was competent to remove appellant from service.

14. In the present facts and circumstances of the case, I am

of the view that there occasioned a failure of justice to the

appellant for not placing the file before the competent

authority for grant of sanction. On facts, the demand of bribe

cannot be believed and prosecution was sanctioned by the

authority that was not competent to accord sanction resulting

in prejudice, for which reasons the appeal succeeds.

15. Accordingly the conviction is set aside. Bail bonds stand

discharged.

_________________ K.SURENDER, J Date:13.09.2022 Note: LR copy to be marked B/o.kvs

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.1404 of 2007

Dated:13.09.2022

kvs