Saleem vs The State Of A.P., Thru Inspector ...
2022 Latest Caselaw 4741 Tel

          THE HON'BLE SRI JUSTICE K.SURENDER

          CRIMINAL APPEAL Nos.836 & 837 of 2008

COMMON JUDGMENT:

1.

The appellants are A1 and A2, convicted and sentenced to

undergo rigorous imprisonment for one year each for the charge

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

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

in C.C.No.30 of 2003, dated 27.06.2008 passed by the Principal

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

Hyderabad. Aggrieved by the same, present appeal is filed.

2. Criminal Appeal No.836 of 2008 is preferred by AO2 and

Criminal Appeal No.837 of 2008 is preferred by AO1. Since both

these appeals arise out of judgment in CC No.30 of 2003, they

are being heard together and disposed off by way of this

Common Judgment.

3. For the sake of convenience, the parties herein after will be

referred to as arrayed before the trial Court.

4. AO1 was Additional Assistant Engineer and AO2 was Sub

Engineer in the office of the Divisional Engineer (Electrical and

Operations) City VI, APCPDCL, Bowenpally. The case of the

prosecution is that P.W.1 was working as Factory Manager in

R.C.Metal Fabs at Hyderabad of which P.W.3 is the proprietor.

On behalf of R.C. Metal Fabs, P.W.3 applied for 10 HB Industrial

Electric power on 30.06.2001 in the office of the Divisional

Engineer (Operations) wherein AOs 1 and 2 were working. On

09.06.2001, the Divisional Engineer forwarded the application to

AO1. When P.W.1 met AO1 on 09.06.2001, AO1 demanded to

pay Rs.6,000/- as bribe and referred the concerned file to AO2.

AO2 also made demand of Rs.2,000/-. The case was pending

and during November, 2001, when P.W.1 again met AOs.1 and 2

they informed that bribe as demanded earlier has to be paid.

Since 10 HB industrial electric supply was not sanctioned,

manufacturing process was stalled. P.W.1 met AOs.1 and 2

twice in the month of November, 2001 and again on 04.12.2001.

The bribe amount was reduced by AO1 to Rs.4000/- and AO2 to

Rs.1000/-. According to P.W.1, P.W.3 instructed him to

complain to ACB about AOs 1 and 2. Accordingly, on

05.12.2001, P.W.1 lodged Ex.P1 complaint in writing. The trap

was arranged on the same day at 2.00 p.m. At 2.00 p.m, the trap

party members gathered in the office of ACB and after following

the pre trap formalities, prepared Ex.P3 pre-trap proceedings.

The trap party went to the office of AO around 5.00 p.m. P.Ws.1

and 2 went into the office and when demanded by AO1 and AO2,

the bribe amount of Rs.4,000/-was paid to AO1 and Rs.1,000/-

was paid to AO2. P.W.2 relayed signal to the trap party

indicating acceptance of bribe by AOs.1 and 2, as such, the trap

party entered into the office and conducted tests on the hands of

AOs.1 and 2. The amount of Rs.4,000/- was recovered from the

pocket of AO1 and the amount of Rs.1,000/- was recovered,

which was placed in the attendance register. The tests conducted

on the hands of both the AOs.1 and 2 proved positive and

thereafter, the post trap proceedings under Ex.P10, was

prepared. P.W.9, the DSP handed over investigation to P.W.10

and after conclusion of investigation, charge sheet was laid for

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

13(2) of the Act.

5. The prosecution examined P.Ws.1 to 11 and marked Exs.P1

to P21. On behalf of the accused, D.Ws.1 to 3 were examined

and marked Exs.X1 to X9 in support of the defence. After

conclusion of trial, learned Special Judge found the appellants

guilty as stated above.

6. Sri T.Niranjan Reddy, learned Senior Counsel appearing for

the appellants would submit that at the very inception, during

post trap proceedings AO1 stated that the amount was given

towards purchase of meter. Ex.X1 marked through P.W.1, which

is a letter addressed by P.W.3 dated 29.11.2001 undertaking to

purchase a new meter through a representative. P.W.1 was

working on commission basis in the factory of P.W.3 However,

P.W.3 did not support the case of the prosecution. Further the

independent mediators P.W.4-Divisional Engineer, P.W.6-

Divisional Engineer (Stores), P.W.7-Junior Assistant, District

Registrar of Assurances, who is the other mediator have all

turned hostile to the prosecution case. Section 164 Cr.P.C

statement of P.W.1 was recorded before the Metropolitan

Magistrate as admitted by PW10, however, the said statement

was suppressed. From the evidence of P.W.1, he did not know

the procedure to be followed for installing new meter. In fact, the

proprietor, P.W.3 stated that he has given letter dated

29.11.2001 and received quote from AO1 for Rs.3,996/- for

installing of new meters. According to P.W.4, the memos issued

by the department Exs.X3 and X4 indicate that the customers

can purchase new meters at their expense. Similarly, P.W.5 also

marked Exs.X5 and X6, which reflect the allotment of letters to

different sections and that there were no new three phase meters

in Ferozguda Section. AOs.1 and 2 have proved their defence,

which was stated at the earliest point of time in the second

mediator's report Ex.P10 that the amount of Rs.4,000/- was

towards purchase of new meter which was undertaken to be paid

by P.W.3. Except P.W.1 none of the witnesses P.W.2

independent mediator, nor P.W.3 who is the owner of the

industry have spoken anything about demand of bribe by the

appellants, for which reason, the appellants are entitled to be

acquitted. Further the sanction is bad in law for the reason of

the ACB not providing documents to the sanctioning authority

and apparently the sanction was mechanically granted.

7. Learned counsel for the appellants relied upon the following

judgments; i) Suraj Mal v. State (Delhi Administration) [(1979)

4 Supreme Court Cases 725], wherein the Hon'ble Supreme

Court held that mere recovery of bribe money divorced from the

circumstances under which it was paid is not sufficient to

convict when the substantive evidence in the case was not

reliable; ii) C.M.Girish Babu v. CBI, Cochin, High Court of

Kerala [(2009) 3 Supreme Court Cases 779], wherein the Hon'ble

Supreme Court held that mere recovery is not enough and the

accused can discharge his burden by preponderance of

probability; iii) V.Sejappa v. State by Police Inspector

Lokayukta, Chitradurga {(2016) 12 Supreme Court Cases 150],

wherein it is held that when demand is not proved, the appellant

has to be acquitted; iv) T.K.Ramesh Kumar v. State through

Police Inspector, Bangalore [(2015) 15 Supreme Court Cases

629], wherein it is held that though recovery was made, however,

in the absence of proof of demand, there cannot be conviction

under Sections 7 and 13(1)(d) r/w Section 13(2) of the Act.

8. On the other hand, learned Special Public Prosecutor for

ACB submits that though the witnesses P.Ws.2, 3, 4, 6 and 7

were declared hostile to the prosecution case, it does not have

bearing on the demand and acceptance of bribe by the

appellants. P.W.1's evidence is sufficient to infer that the

industry of P.W.3 had applied for 10 HB industrial power

connection, for which, new meter was required. Over a period of

nearly six months, meter and power supply was not provided, as

such, vexed by the demand made by the appellants, Ex.P1 was

lodged. The circumstantial evidence in the case is sufficient to

record conviction.

9. In reply to the arguments of the learned counsel for the

appellants that the sanction was not proper and the sanctioning

authority was not provided with the documents of the case, the

learned Public Prosecutor relied upon the judgment of Hon'ble

Supreme Court in the case of Girish Kumar Suneja v. CBI

[Crl.Appeal No.1137 of 2017, dated 13.07.2017 arising out of

SLP (Crl.) NO.9503 of 2016], wherein it was held that unless

prejudice was shown and when the Court after judicial scrutiny

finds a person guilty, the question of sanction would be

inconsequential.

10. P.W.3 who is the owner of the industry in which electric

connection was sought, did not support the case of P.W.1

regarding the demand of bribe by AOs.1 and 2 contrary to the

version of P.W.1. P.W.3 stated that the amount was paid for

purchase of new meter, which request for new meter was made

vide Ex.X1 letter dated 29.11.2001. Though the witness was

treated as hostile by the prosecution, the version of P.W.3 that

he intended to purchase a new meter at the cost of Rs.3,996/- is

supported by document Ex.X1. Exs.X3 and X4, are the memos

issued by the department which permit purchase of meters at

the customer's expense, as stated by P.W.4, the Divisional

Engineer. P.W.5, the Additional Divisional Engineer has stated

that there were no three phase meters in Ferozguda Section.

11. At the earliest point of time, when the DSP questioned AO1

regarding Rs.4,000/-, he stated that P.W.1 brought Rs.4,000/-

for purchase of 3 phase high quality meter. He narrated that the

industry of P.W.3 was not given three phase meter as there was

no supply of meters. Pursuant to the request of P.W.3, the

amount was received towards purchase of meter. The said

version is corroborated by the evidence of P.Ws.3, 4 and 5 under

Exs.X1 to X4 and the version of AO1 recorded during post trap

proceedings.

12. Both the independent mediators, P.Ws.2 and 8 did not

state anything about alleged demand made by the appellants on

the trap day. In the back ground of an application that was made

by PW3 for purchase of meter which was pending consideration

for which amount was accepted by AO1. In view of the evidence

of P.Ws.3, 4 and 5 and Exs.X1 to X5, the appellants have

discharged their burden of proving that the amount was not

towards bribe. The amount of Rs.1,000/- was recovered, which

was placed in the attendance register, for the reason of this

Court not believing the version of PW.1 that there was a demand

from these appellants for providing electric connection, recovery

from the attendance register of Rs.1,000/- is of no consequence.

For the said reason, the prosecution has failed to prove that

there was demand of bribe and further AO1 explained the reason

for receipt of the said amount at the earliest point of time,

supported by the documentary evidence for which reasons

benefit of doubt is extended to the appellants.

13. In the said circumstances, the prosecution has failed to

prove its case beyond reasonable doubt, however the appellants

have discharged their burden as discussed above.

14. For the aforementioned reasons, the conviction recorded by

the trial Court in CC No.30 of 2003 dated 27.06.2008 is set aside

and the appellants are acquitted. Since the appellants are on

bail, their bail bonds shall stand cancelled.

15. Accordingly, Criminal Appeals are allowed.

_________________ K.SURENDER, J Date:20.09.2022 kvs

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.Nos.836 & 837 of 2008

Dated:20.09.2022

kvs