Telangana High Court

Dr. M.Srikanth Reddy, vs The State Of Andhra Pradesh, on 9 July, 2024

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               HIGH COURT FOR THE STATE OF TELANGANA
                           AT HYDERABAD

                                    *****
                       Criminal Appeal No. 294 OF 2013
Between:


Dr.M.Srikanth Reddy                                       ... Appellant

                                And

The State of A.P. rep. by Inspector of Police,
ACB, Nizamabad Range                                      ... Respondent


DATE OF JUDGMENT PRONOUNCED:                 09.07.2024

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. 294 OF 2013


% Dated 09.07.2024
# Dr.M.Srikanth Reddy                                  ... Appellant

                                And

$ The State of A.P. rep. by Inspector of Police,
ACB, Nizamabad Range                                   ... Respondent



! Counsel for the Appellant: Sri Sudhakar Reddy Maddula rep.
                             by Sri Pradyumna Kumar Reddy,
                                  Senior Counsel

^ Counsel for the Respondents: Sri Sridhar Chikyala
                             Special Public Prosecutor

>HEAD NOTE:

? Cases referred

1. (2015) 10 SCC 152

                       2. (2022) 4 Supreme Court Cases 574
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              HON'BLE SRI JUSTICE K.SURENDER
               CRIMINAL APPEAL No.294 OF 2013
JUDGMENT:

1. The appellant aggrieved by the conviction recorded by the II

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

Hyderabad for the offences under Sections 7 and Section 13(1)(d)

r/w 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 one year under both counts, vide judgment in CC No.24 of

2019 dated 15.03.2013, the present appeal is filed.

2. Briefly, the case of the prosecution is that the appellant/A1

and A2 (since A2 died during the pendency of appeal, the case

against A2 was dismissed as abated) were working as Civil

Assistant Surgeons in the District Head Quarters Hospital,

Nizamabad. P.Ws.2 and 3 went to Government Hospital, Nizamabad

for operation of tonsillitis of P.W.2. It is alleged that A1 and A2

demanded Rs.2,000/- for performing operation in the hospital and

if the operation has to be performed outside the Government

Hospital, they have to give Rs.4,000/-. Since P.Ws.2 and 3 did not

have the amount, they returned home. On 06.09.2003,

P.W.1/defacto complainant accompanied P.Ws.2 and 3 and met A2.

Then, the A1 was also present at that time. There was a demand for

Rs.2,000/- by A2, however, reduced to Rs.1,000/- and on further

requesting, A2 reduced the amount of Rs.800/-. P.W.2 was

operated in the Government hospital. Niyaz, who is relative of P.W.1

informed P.W.1 that amount was being demanded by Doctor and

accordingly, P.W.1 arranged Rs.300/- and went to the hospital.

Then said Niyaz informed A2 that they had only Rs.300/-. A2 took

his cell phone and insisted that unless Rs.800/- was given, he

would not return the cell phone. Aggrieved by the said incident,

P.W.1 approached ACB and lodged complaint Ex.P1 on 06.09.2003.

The said complaint was given to P.W.9/DSP. P.W.9 asked P.W.1 to

come to the office on 08.09.2003 with the bribe amount.

3. On 08.09.2003, FIR was registered and trap was arranged.

The trap party consisted of P.W.1/defacto complainant,

P.W.2/independent mediator, P.W.9 and others. Having concluded

the formalities before proceeding to trap, Ex.P5/pre-trap

proceedings was drafted. The entire trap party then went to the

Government Hospital, Nizamabad. P.W.1 went inside the hospital

around 9.50 a.m and came out of the hospital at 10.10 a.m. He

relayed signal to the trap party indicating demand and acceptance

of bribe by the accused doctors.

4. The trap party entered into the hospital and questioned

appellant/A1. Sodium carbonate solution was prepared and when

A1 was asked to rinse his fingers, they turned into pink colour. The

bribe amount was seized from A1/appellant. Thereafter, A2 was

questioned regarding the bribe and also the cell phone that was

taken by A2. A2 opened the locker and handed over the cell phone

to DSP, which is marked as MO1 by the Court below. The case

sheet of P.W.2 was seized, which is Ex.P6. The attendance registers

Exs.P7 and P8 were also seized during the course of post trap

proceedings. Having concluded post-trap proceedings, Ex.P10 was

drafted.

5. Thereafter, investigation was handed over by P.W.9 to

P.W.10/inspector. Part of investigation was done by P.W.10 and

investigation was again handed over to P.W.11. P.W.11 concluded

investigation and filed charge sheet.

6. Learned Special Judge examined P.Ws.1 to 11 and marked

Exs.P1 to P13 on behalf of the prosecution. The defence examined

two witnesses D.Ws.1 and 2. Learned Special Judge, having

considered the evidence on record, convicted both appellant-A1 and

A2, as stated supra.

7. Learned Senior Counsel appearing on behalf of the appellant

would submit that even according to the evidence of P.W.1, demand

was made by A2. In his chief examination only the presence of

appellant was stated but there is no whisper of any demand.

Further, during the post-trap proceedings, it was explained by the

appellant that P.W.1 had handed over the amount to the appellant

requesting him to handover the said amount to A2. The said

explanation was given at the earliest point of time. The cell phone

of complainant was also seized at the instance of A2. In the said

circumstances, when the demand was not proved by the

prosecution against appellant, mere recovery from the appellant-A1

cannot form basis to convict him.

8. On the other hand, learned Special Public Prosecutor

appearing for ACB would submit that in the complaint Ex.P1, it is

mentioned that there was a demand by A1 and also A2. It is

specifically mentioned in the compliant that it was the appellant,

who had demanded and accepted the amount from P.W.1. In the

said circumstances, the prosecution has proved both demand and

acceptance by A1. Even according to the prosecution case, both A1

and A2 had demanded amount. Only for the reason of P.W.1 not

specifically stating about demand by A1 before the Court below, is

of no consequence. The case of P.W.1 is that both A1 and A2 have

demanded bribe amount. Prosecution has proved its case beyond

reasonable doubt against the appellant.

9. The only evidence to prove demand is that of P.W.1. P.W.1,

while he was examined in the Court stated that it was A2, who had

demanded the bribe of Rs.1,000/- and reduced to Rs.800/-. A2 had

operated on P.W.2. However, P.W.1 states that A1 was also present

when the demand was made by A2. But the fact remains that

P.W.1 did not state that there was demand by the appellant-A1

prior to or till the date of complaint in his examination before Court.

10. On the date of trap, according to the version of the appellant,

when confronted by DSP, appellant stated that P.W.1 had given the

amount and asked him to handover to Mr.Sunil Kumar-A2.

Accordingly, the appellant has taken the amount and kept with him

to hand it over to A2. He further stated that he never demanded any

amount and operation was not performed by him. Only on

07.09.2003, he had attended the patient P.W.2 in the ward. P.W.1

stated in chief examination as follows:

"I went to the first floor and entered room No.302 which is the consulting room of the doctors and found AO1 in the said room. Then I enquired him about AO2, AO1 informed that AO2 went out, then I gave the amount to AO1, he took the amount and he counted on my request and kept in the shirt pocket and I came out and conveyed the signal."

Even according to P.W.1, there was no demand by

A1/appellant on the date of trap.

11. It is not the case of the prosecution that there was demand

made on 07.09.2003 by the appellant. The complaint was filed on

06.09.2003 itself. Even according to P.W.1, the cell phone was

taken by A2 asking to pay the amount of Rs.800/- and kept the cell

phone with him. On the date of trap, A2 produced cell phone from

the locker and handed over to DSP. The operation was performed by

A2. Collectively, viewing the circumstances, it is not specifically

stated by P.W.1 that there was any demand by appellant, neither

operation was conducted by the appellant/A1 nor the cell phone

was taken by appellant/A1. Further, spontaneous explanation was

given that P.W.1 had handed over the amount to be given to A2. All

these circumstances indicate that there was no demand made by

A1. Even in the chief examination of P.W.1, stated that he went

inside the room and enquired about A2, then A1 informed that A2

went out. Then P.W.1 gave the bribe amount to A1, who counted it

and on his request kept in his shirt pocket. P.W.1 specifically stated

that on his request, the amount was taken by the appellant-A1.

12. The Hon'ble Supreme Court in the case of P.Satyanarayana

Murthy v. State of A.P( F.B) (2015 (10) SCC 152) held that proof of

demand is sine qua non for convicting a person under Section 7 of

the Act and mere recovery of the amount is of no consequence.

Similar view was taken by the Hon'ble Supreme Court in the case of

K.Shanthamma v. State of Telangana (2022) 4 Supreme Court

Cases 574).

13. The factum of demand is not proved by the prosecution. Even

according to P.W.1, there was no demand by A1-appellant at any

point of time. Recovery from A1 was explained by him that it was

handed over by P.W.1 to be given to A2. The said fact is stated by

P.W.1 also. In the said circumstances, the prosecution has failed to

prove either the factum of demand of bribe or accepting any bribe

from P.W.1. Accordingly, appellant succeeds.

14. In the result, the judgment of trial Court in CC No.24 of 2010

dated 15.03.2013 is hereby set aside and the appellant is acquitted.

Since the appellant is on bail, his bail bonds shall stand cancelled.