Telangana High Court
Borkut Mallaiah, vs The State Of A.P., Rep By Spl Pp., on 14 August, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.904 OF 2010
Between:
Borkut Mallaiah ... Appellant
And
The State of A.P.
Rep. by Inspector of Police ... Respondent
DATE OF JUDGMENT PRONOUNCED: 14.08.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No. 904 OF 2010
% Dated 14.08.2024
#Borkut Mallaiah ... Appellant
And
$ The State of A.P. rep. by Inspector of Police ... Respondent
! Counsel for the Appellant: Sri Badeti Venkata Rathnam
^ Counsel for the Respondent: Sri Sridhar Chikyala,
Special Public Prosecutor
>HEAD NOTE:
? Cases referred
1. (AIR 1977 Supreme Court 170
2. SLP (Crl.) No(s).9091 of 2022, dated 10.07.2024
3. 2002(2) ALD (Crl.) 249 (AP)
4. 2000 Crl.L.J 2273
5. 2022 CRI.L.J 1238;
6. AIR 1981 Supreme Court 911 Supreme Court
7. AIR 1980 Supreme Court 1558
8. AIR 1974 Supreme Court 220 Supreme Court
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.904 OF 2010
JUDGMENT:
1. The appellant who worked as Assistant Executive Engineer in
Panchayat Raj Department, Asifabad, was trapped for demanding and
accepting bribe of Rs.10,000/- from the defacto complainant/P.W.1.
Appellant was convicted by the Principal Special Judge for SPE & ACB
Cases at Hyderabad, under Sections 7 & 13(1)(d) r/w 13(2) of the
Prevention of Corruption Act vide judgment in C.C.No.9 of 2005 dated
12.07.2010. Aggrieved by the same, present appeal is filed.
2. Briefly, the case of the prosecution is that the defacto
complainant/P.W.1 was Mandal Parishad Territorial Constituency
(MPTC) member, who was awarded three contracts for laying metal
roads. Having entered into agreement with department, work orders were
issued and accordingly he completed works within time. The roads were
laid under the food for work programme. The wages would include
distribution of rice which would be released by issuing rice coupons by
the appellant within his jurisdiction.
3. It is further the case of P.W.1 that the appellant had to release total
extent of 80 quintals of rice and when asked to release rice, appellant
demanded Rs.14,000/- as bribe and later reduced the bribe amount to
Rs.10,000/- when pleaded his incapacity to give such amount. The said
demand for bribe was again made on 05.03.2003. Aggrieved by the
constant demand, Ex.P4 written complaint was filed by P.W.1 with
P.W.6/DSP on 06.03.2003. P.W.6 asked P.W.1 to come to his office on
the next day.
4. On 07.03.2003, the trap was arranged by the DSP/P.W.6. The trap
party including the complainant/P.W.1, P.W.3/independent witness,
P.W.6/DSP and others assembled in the guest house. P.W.1 could not
arrange for Rs.10,000/- and only Rs.5,000/- was arranged. However, the
trap party went ahead and completed the formalities required before
proceeding to entrap the appellant. All the formalities were concluded in
the guest house where the trap party assembled. The pre-trap proceeding
is Ex.P6.
5. Thereafter, P.W.1/complainant and accompanying witness P.W.2
went on motor cycle while the other trap party members followed them in
a car. Around 9.20 am, they reached the house of the appellant and both
P.Ws.1 and 2 entered into the house of the appellant. On seeing P.W.1,
appellant allegedly demanded the bribe amount and instructed P.W.1
that the amount be kept on the table. After the amount was kept on the
table, P.W.2 went outside and signaled to the trap party. P.W.1 also left.
P.W.3, P.W.6/DSP and other trap party members then entered into the
house and enquired about the bribe amount. Sodium carbonate test was
conducted on the hands of the appellant, which remained colourless. The
trap party found the amount on the table. The trap party verified the
cash and seized the same. The appellant then produced three
measurement books relating to P.W.1 which are Exs.P7 to P9. The
statement of the appellant, complainant and other witnesses were
incorporated in the post trap proceedings Ex.P11. Thereafter,
investigation was handed over to P.W.7/Inspector. Having obtained
sanction to prosecute the appellant, charge sheet was filed by P.W.7.
6. During the course of trial, learned Special Judge examined
witnesses produced by the prosecution who are P.Ws.1 to 7 and Exs.P1
to P13 were also marked. Further, MOs.1 to 9 were also placed on record
during trial. D.Ws.1 and 2 were examined by the appellant in his
defence. Learned Special Judge convicted the appellant accordingly.
7. The case of the appellant is that he did not demand any amount
from P.W.1. On the date of trap, P.W.1 offered some amount, however,
when the appellant refused to accept, P.W.1 forcibly kept the said
amount on the table. The appellant pushed the money with the note
book which was held in his hand and asked P.W.1 to take back the said
amount. However, P.W.1 asked appellant to sign on the rice coupons and
left the room without taking the amount and leaving it on the table. Four
persons were also present when P.W.1 kept the amount, which included
D.Ws.1 and 2. The said version was stated by the appellant when he was
examined by the DSP during post trap proceedings and the said version
was incorporated in the post trap proceedings.
8. Learned counsel appearing for the appellant would submit that the
prosecution has failed to prove that 80 quintals as alleged by the
complainant/P.W.1 were due to him. The ACB authorities while
conducting search in the house found Ex.P5, which are bunch of
coupons for three works seized them and projected them as though the
said coupons were due to be given to P.W.1. However, as seen from
Ex.P5, they are office copies of coupons and in fact the coupons would be
in triplicate. The duplicate and triplicate are missing. According to P.W.5,
Deputy Executive Engineer in the Panchayat Raj Department, there were
no files of P.W.1 pending with the appellant. Unless orders are passed by
the MPDO in Ex.P9, which was not done, the question of allotting rice
does not arise. Counsel further argued that P.W.4 admitted that in
Ex.P9, no orders were passed by the MPDO for issuance of rice coupons.
In fact, rice coupons will be initialed by the MPDO and would be handed
over to the AE and as per the release of the rice from Government,
coupons will be given. Since the prosecution has failed to prove that the
MPDO had passed any coupons in favour of P.W.1 to be handed over to
P.W.1, the question of any pending work with the AE does not arise. The
burden is always on the prosecution to prove that official work was
pending and for the said works, money was demanded.
9. Learned counsel for the appellant relied on the following
judgments: i) Rabindra Kumar Dey v. State of Orissa (AIR 1977
Supreme Court 170); ii) Mir Mustafa Ali Hasmi v. State of A.P (arising
out of SLP (Crl.) No(s).9091 of 2022, dated 10.07.2024; iii) Muralikonda
v. State of A.P(2002(2) ALD (Crl.) 249 (AP); iv) Smt. Meena Balwant
Hemke v. State of Maharashtra (2000) Crl.L.J 2273); v)
K.Shanthamma v. State of Telangana (2022) CRI.L.J 1238); vi) Dudh
Nath Pandey v. State of U.P (AIR 1981 Supreme Court 911 Supreme
Court); vii) Gulam Mahmood A. Malek v. The State of Gujarat (AIR
1980 Supreme Court 1558); viii) Chandrakant Luxman v. Maharashtra
(AIR 1974 Supreme Court 220 Supreme Court) and argued that demand
was not proved by prosecution and recovery is of no consequence. Both
the prosecution and defence witnesses are to be treated equally. He
further argued that the version of P.W.1 regarding pending work was not
proved and the demand becomes doubtful. The amount was placed on
the table and recovery was not at the instance of the appellant. In fact,
D.Ws.1 and 2 stated that when they were present in the house, P.W.1
entered into the house, placed amount on the table and left, though
appellant refused. Immediately, ACB officials entered into the room. In
the said circumstances, no case is made out against the appellant.
10. On the other hand, learned Special Public Prosecutor for ACB
would argue that the rice coupons Ex.P5 were found in the house of the
appellant, when search was conducted. In fact, prosecution has proved
that all the three works were completed, measurements books were also
seized at the instance of the appellant. Though the tests on the hands of
the appellant turned negative, however, it was clearly explained that
when the appellant asked P.W.1 for money, P.W.1 placed the amount on
the table, as directed by appellant and then P.Ws.1 and 2 left the room.
There is no reason why the appellant would be falsely implicated and no
such evidence is forthcoming regarding any motive or reason to file
criminal case against the appellant. The prosecution has proved its case
against the appellant beyond reasonable doubt.
11. P.W.5 is the official witness, who stated that the MPDO had passed
orders at page 74 of Ex.P9 for release of 80 quintals of rice. However,
during cross-examination, P.W.5 stated that after completion of work by
P.W.1, appellant measured the works immediately, but no file was
pending with the appellant. He further admitted that the order passed by
the MPDO does not contain the date at page No.74 of Ex.P9, which is
relied on by the prosecution to support the prosecution version. Ex.P5
rice coupons, which are filed by the prosecution, were all distributed and
originals are only found. The duplicate and triplicate of the coupons filed
under Ex.P5 are missing. It is for the prosecution to prove as to what
happened to duplicate and triplicate of the coupons.
12. Prosecution has not examined the MPDO, who issued coupons to
know whether any coupons were in fact issued and sent to the appellant
for the purpose of handing it over to P.W.1. There is no reason as to why
the person who had to issue coupons i.e., MPDO was not examined by
the prosecution. Non-examination of MPDO casts any amount of doubt
regarding the correctness of the prosecution version, since the
originals/first part of the coupons were found and not the duplicate and
triplicate. However, there is no explanation regarding duplicate and
triplicate of the said coupons, which is required, since the absence of
duplicate and triplicate indicates that the coupons were already used
and rice distributed.
13. The prosecution further failed to prove that any file was pending
with the appellant, which is admitted by P.W.5. The prosecution, except
marking Ex.P5; i) has not given any specific numbers regarding the
quantum of rice which has to be distributed, (ii) Coupons already signed
and sent by the MPDO; (iii) what was the remaining quantum of rice that
had to be given to P.W.1 and the details of corresponding work. Nothing
can be gathered by this Court regarding the correctness of the claim of
P.W.1 that there was due of 80 quintals of rice to be handed over to him
for the works completed. On the basis of the complaint and filing the
documents, it cannot be presumed that the said quantum of 80 quintals
is yet to be paid. Though P.W.5 stated that 80 quintals was due to P.W.1,
however, during cross-examination, he could not substantiate the same
and stated that no file was pending with appellant. As already discussed,
MPDO was not examined and P.W.5 stated that MPDO has not signed or
passed orders regarding jurisdiction works, for which rice had to be
issued. The confusion ought to have been explained by the prosecution.
It is the specific case of the appellant that whatever rice had to be
released in favour of P.W.1 was already released and nothing was
pending with the appellant, which is supported by Ex.P5.
14. The demand of bribe was Rs.14,000/- and according to P.W.1, it
was reduced to Rs.10,000/-. However, the trap was laid and arranged for
the amount of Rs.5,000/-. The said amount of Rs.5,000/- was placed on
the table by P.W.1. The appellant had not handled the amount. It is not
the case of P.W.1 that the appellant has asked for Rs.10,000/- and
thereafter, accepted Rs.5,000/- on the date of trap. P.Ws.1 and 2 vaguely
stated that the appellant asked P.W.1, whether P.W.1 brought the
amount and when instructed, P.W.1 kept the amount on the table. If the
demand was for Rs.10,000/-, no explanation was given as to why the
amount of Rs.5,000/- was accepted on the date of trap. The version given
by the appellant at the earliest point of time during post trap proceedings
that the amount was kept on the table by P.W.1, P.W.1 left the place is
corroborated by the evidence of D.Ws.1 and 2. The evidence of D.Ws.1
and 2 cannot be brushed aside only for the reason of the witnesses being
produced by the appellant. If the witnesses produced by the defence tend
to lie so do the prosecution witnesses. In fact, the prosecution has failed
to prove that there was any pending work with the appellant.
Accordingly, benefit of doubt is extended to the appellant.
15. For the reasons discussed above, the judgment of trial Court in
C.C.No.9 of 2005 dated 12.07.2010 is set aside and the appellant is
acquitted. Since the appellant is on bail, his bail bonds shall cancel.
16. Criminal Appeal is allowed.
__________________
K.SURENDER, J
Date: 14 .08.2024
Note: LR copy to be marked.
B/o.kvs
