Telangana High Court
Mir Younas Ali, Subedari, Hanamkonda vs State Of A.P.Rep Inspector Of Police, ... on 5 July, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.399 OF 2011
JUDGMENT:
1. The appellant is questioning the judgment of the Special Court
whereby the Special Court has convicted him for the offence under
Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act
vide judgment in C.C.No.6 of 2010 dated 28.03.2011 and sentenced
to undergo rigorous imprisonment for a period of one year under
both counts.
2. Briefly, the case of P.W.1/defacto complainant is that his
father was a contractor and also doing cultivation. In the year 2001,
contract was awarded for digging an open drinking water well in a
school situated at Korivi, Warangal District. Agreement was
executed on 07.11.2001. The value of the contract was Rs.5.00
lakhs and to be completed in six months. Huge stones were found
in the well while digging. It was informed to the appellant who was
the Assistant Engineer, Deputy Assistant Engineer and Executive
Engineer. All the three officials verified the spot and it was informed
that excess expenditure would be incurred for removing the stones.
Accordingly, assurance was made that Rs.3.00 lakhs would be
given for removing the stones. The work was completed. Towards
payment, Rs.3,50,000/- was paid by cheques and also rice of
Rs.2.00 lakh was received. During execution of the work, the
appellant used to record measurements in the diary. According to
P.W.1, his father had to receive Rs.1,50,000/- towards final bill. For
the said purpose, in the first week of August, 2002, both P.W.1 and
his father approached the appellant and requested for final
payment. The appellant demanded Rs.10,000/- as bribe for
releasing the final bill amount. Again on 31.10.2002, both P.W.1
and his father went to the house of the appellant at 8.00 a.m and
requested to pay the amount. However, the appellant stated that
earlier also nothing was paid and insisted to pay Rs.10,000/- bribe.
3. Aggrieved by the conduct of the appellant of constantly asking
for bribe, P.W.1 lodged Ex.P1 complaint with the ACB. The DSP/
Umakanth (not examined since died) having received the complaint,
arranged trap on 02.11.2002. The trap party including
P.W.1/complainant, P.W.2/independent mediator, DSP and others
gathered at 8.00 a.m in the office of DSP. The formalities before
proceeding to trap were followed and completed. The entire
proceedings were drafted as pre-trap proceedings, which is Ex.P3.
4. The trap party then went to the house of the appellant. While
the other trap party members waited at a distance, P.W.1 went to
the house and pressed calling bell. The appellant opened the door
and instructed P.W.1 to pay the amount and put it in the table
drawer. Appellant pulled out the table drawer and after the amount
was placed in the drawer by P.W.1, it was closed. P.W.1 came out
and relayed the signal to the trap party indicating demand and
acceptance of bribe by the appellant. The trap party went to the
house and one of them pressed the calling bell. The wife of
appellant, who was arrayed as A2 (acquitted by Court below)
opened the door. The DSP enquired about the appellant and A2
informed that appellant left. The trap party observed that the
appellant was leaving through kitchen door and he was stopped by
constables and questioned by DSP. Sodium carbonate solution test
was conducted on the hands of the appellant and test on both
hands remained colourless. The appellant stated that he did not
receive any amount from P.W.1. A woman constable was called.
P.W.1 was questioned as to what transpired after he entered into
the house. He stated that the amount was placed in the table
drawer. The DSP pulled table drawer and amount was not available.
However, two papers were found. The presence of phenolphthalein
powder was tested on the papers, which yielded positive result.
Thereafter, the test was conducted on the hands of the wife (A2) of
the appellant. The right hand test turned positive. The left hand test
remained negative. On questioning, A2 pointed out that the amount
was placed in the bag, which was in the cupboard. The school bag
was taken out and it was turned upside down by A2. The amount
fell on the ground. The amount was picked up, verified and also the
school bag was subjected to test, which yielded positive result.
5. The resultant solutions of (i) hands of the appellant and A2, (ii)
paper found in the table drawer; (iii) the school bag were preserved.
Post-trap proceedings were concluded. The investigation was
thereafter handed over by the DSP to P.W.5, who concluded
investigation and filed charge sheet for the offence under Sections 7
and 13(1)(d) r/w 13(2) of the Act against A1 and Section 12 of the
Act against A2, wife of the appellant.
6. The prosecution examined P.Ws.1 to 5 and marked Exs.P1 to
P10. Exs.MOs.1 to 12 were also brought on record by the
prosecution. The defence examined D.Ws.1 to 3 and marked Exs.D1
and D2. The Court marked Exs.X1 to X5.
7. Learned Special Judge found that the evidence of demand and
acceptance of bribe as projected by the prosecution was convincing.
The Special Court further found that though the defence tried to
project that no official work was pending with the appellant,
however, no reliance can be placed on the said defence.
Accordingly, appellant was convicted and A2, wife of the appellant
was acquitted.
8. Learned counsel appearing for the appellant mainly argued on
the basis of the evidence of P.Ws.4, 5 and Exs.X1 to X5 documents.
Counsel contended that even according to the prosecution
witnesses, the work was not complete and whatever work was
completed, payment was already made. In the said circumstances,
the question of demand and acceptance of amount does not arise.
The appellant was falsely implicated since it is apparent from the
record that the amounts were due and payable to the father of
P.W.1 was already paid. In fact, the father of P.W.1 was not
examined before the Court. When the prosecution failed to prove
that there was no work pending before the appellant, the question
of demanding and accepting bribe does not arise.
9. Learned counsel for the appellant relied on the following
judgments: i) State of Kerala and another v. C.P.Rao ((2011) 6
Supreme Court Cases 450); ii) Punjabrao v. State of Maharashtra
(2002) 10 Supreme Court Cases 371); iii) P.Satyanarayana Murthy
v. District Inspector of Police and another (2015(2) ALD (Crl.)
883 (SC); iv) Sujit Biswas v. State of Assam (2013(3) ALT (CRI.)
(SC) 316 (D.B); v) B.Jayaraj v. State of Andhra Pradesh ((2014) 13
SCC 55); vi) Lachman Dass v. State of Punjab (AIR 1970 Supreme
Court 450).
10. On the other hand, learned Special Public Prosecutor would
submit that it is not in dispute that the work was executed by the
father of P.W.1. In the complaint, it is mentioned that the appellant
insisted for the amount of Rs.10,000/- also for the purpose of
releasing earlier bills and for the work which was already executed.
Since the appellant is the person, who would enter the
measurements in the M-Book and thereafter, bills are released, the
demand, as alleged by the prosecution can be believed. Further, on
the date of trap, amount was received by the appellant and his wife
had taken the amount and placed it in the cupboard. In the said
circumstances, the prosecution had proved its case. Learned
Special Judge had rightly concluded regarding the guilt of the
appellant.
11. Having considered the arguments of both sides, the evidence
of P.Ws.4 and 5 regarding pendency of work would be relevant.
P.W.4 deposed as follows:
"By August, 2002 the particular work originally entered was not
completed. On my directions AO prepared working estimates for
exclusion of hard rock and AO prepared the revised working
execution and submitted the same to me through DEE on
9.9.2002 received in my office on 10.9.2002. The same is
Ex.X2. Ex.X3 is revised estimate with covering letter. The
revised estimate approved given by CE on 22.1.2003. In
pursuant of the same I gave my technical sanction on 4.3.2003
under Ex.X4 and in the month of August 2003 the successor of
AO by name Chandra Shekhar prepared the final bill and
submitted the same to me. By the date of preparation of revised
estimates Lakshma was due an amount of Rs.1,83,943/-. As
per Ex.P4 by 17.9.2002 the entire cash component due payable
to Lakshma was paid to him. The original estimate work after
completion AO submitted the bill and the entire cash component
was paid to the contractor Lakshma and no official favour of
preparing the bill by 31.10.2002 and on 2.11.2002 is pending
with AO. Since the revised estimates are yet to be finalized AO
cannot prepare any final bill for the revised estimates."
P.W.5 deposed as follows:
"The work was allotted to the father of PW-1 on 7.11.2001.
Between 7.11.2001 and 31.10.2002 around Rs.7,00,000/- was
paid to the contractor. Out of which Rs.5,50,000/- is cash
component and Rs.1,50,000/- is the rice component. The
original estimate of the work was upto Rs.5,00,000/- as per
Ex.P1. As per Ex.P1 contents part payments were also made for
the extra works done. As per Ex.P1 AO made the demand in the
month of August, 2002. As per the M-book entry, Pw-1 received
cheque for Rs.2,00,000/- on 17.9.2002. As per Ex.P1 contents
the demand was made by AO for preparation of the final bill.
By the end of July, 2002 the contractor has not completed the
work. As on 31.10.2002 as per the statement of Pw-4 EE the
revised work estimates were sent to the Chief Engineer for
enhancement of estimation. The record do not show that as on
31.10.2002 or on 2.11.2002 the revised estimates were
approved by the Chief Engineer. In Ex.P1 there is no
endorsement of verification."
12. According to the version of P.Ws.4 and 5 on the basis of
documents that were produced before the Court, the payment for
the work already done was already made to P.W.1's father and no
amount was pending.
13. It is not in dispute that the work was executed by P.W.1's
father. According to the complainant/P.W.1, the appellant was
insisting for bribe for the amount that was already released and yet
to be paid. In the back ground of the present circumstances, when
P.W.4 has stated that the additional work was completed only in the
year 2003, months after the trap, it has to be looked into whether
the prosecution had succeeded in proving the factum of demand
and acceptance by the appellant.
14. There is no reason given by the appellant as to why he would
be falsely implicated. Defence was taken that no work was pending
with the appellant and witnesses D.Ws.1 to 3 were also examined.
D.W.1 is the domestic servant, who was allegedly working in the
house when the trap has taken place. D.W.2 is another witness who
says that the work was not completed by the father of P.W.1 and it
was completed only after the trap. D.W.3 is another witness, who
stated that he was present in the house around 9.00 a.m. According
to him, he was inside the house when P.W.1 entered into the house
and kept a wad of currency notes in the upper table drawer, though
the appellant resisted. Then the appellant went out of the office
room as he was going to attend nature call. A2, then came into the
office room, picked up currency notes and went inside and
thereafter, ACB officials came into the office and asked about
D.W.3's particulars and his particulars were given to DSP.
15. The presence of D.W.1 and D.W.3 does not find place in the
post-trap proceedings. It was not even suggested to
P.W.1/complainant, P.W.2/independent mediator and
P.W.5/investigating officer that D.Ws.1 and 3 were present in the
house when trap has taken place. For the very first time, the
witnesses D.Ws.1 and 3, were introduced at the stage of defence
evidence and new version regarding their presence and the manner
in which the amount was placed in the table drawer is stated.
16. D.W.3 stated that P.W.1 came into the house and placed
currency notes forcibly in the table drawer. Then, appellant left for
attending nature call. Thereafter, the wife/A2 came and took the
currency notes and went inside. The entire sequence appears to be
highly improbable. If P.W.1 had forcibly kept the amount in the
table drawer, immediate conduct of appellant would be either to
return it or ask it to take it back and not leaving the room to attend
nature call when both P.W.1 and D.W.3 were present in the room.
The said version given by D.W.3 cannot be believed not only for the
fact that he was introduced for the first time during defence but
also from the sequence of events which improbablise the version of
D.W.3.
17. The conduct of the appellant and events on trap date would
be relevant in the present case. P.W.1 entered into the room and
placed currency in the table drawer and left. Immediately, thereafter
when ACB personnel were at the door, which was opened by A2, the
appellant tried to flee from the back door and was apprehended. If
appellant had not intimated A2 about the currency, the question of
A2 taking amount, going inside and placing it in the school bag in
the cupboard, does not arise. As already discussed, D.Ws.1 and 3
deposed that they were present in the room, which cannot be
believed. Attempt is made to show that no work was pending with
the appellant. The allegation is that demand was also made for the
released amount. The defence raised by the appellant is not only
improbable but different versions are given. His conduct coupled
with other events on the trap day clearly reflects that amount was
received from P.W.1 towards bribe. There are no grounds to
interfere with the finding of the Special Court.
18. Accordingly, Criminal Appeal is dismissed. Since the
appellant is on bail, the Special Court is directed to cause
appearance of the appellant and send him to prison to serve out the
remaining period of sentence. The remand period, if any, shall be
given set off under Section 428 Cr.P.C.
__________________
K.SURENDER, J
Date: 05.07.2024
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