Telangana High Court
G.Vijay Sai, vs The State Acb, Hyderabad Range ... on 16 July, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 1718 OF 2009
Between:
G.Vijay Sai ... Appellant
And
The State ACB,
Hyderabad Range ... Respondent
DATE OF JUDGMENT PRONOUNCED: 16.07.2024
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. 1718 OF 2009
% Dated 16.07.2024
# G.Vijay Sai ... Appellant
And
$ The State ACB,
Hyderabad Range ... Respondent
! Counsel for the Appellant: Sri E.Venkata Siddhartha rep.
by Sri Pradyumna Kumar Reddy,
Senior Counsel
^ Counsel for the Respondents: Sri Sridhar Chikyala
Special Public Prosecutor
>HEAD NOTE:
? Cases referred
1. (2010) 4 Supreme Court Cases 450)
2. Criminal Appeal No.742 of 2023 dated 01.02.2024
3. (1995) 3 Supreme Court Cases 351)
4. (2015) 3 Supreme Court Cases 220)
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1718 OF 2009
JUDGMENT:
1. The appellant is questioning his conviction in the present
appeal, recorded by the 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 two years under both
counts, vide judgment in CC No.17 of 2005 dated 19.11.2009.
2. Briefly, the case of the prosecution is that P.W.1, who is the
defacto complainant lodged a complaint with ACB stating that he is
the owner and possessor of agricultural lands and he had a
borewell in his land. The borewell fetches sufficient watering, as
such, some of the villagers including Sarpanch approached him and
requested him to provide drinking water from his borewell to the
village and promised to pay money for supply of the water. P.W.1
was being paid Rs.1,500/- per month by the RDO for supplying
drinking water to Redlarepaka village. According to procedure,
recommendation would be made by the Assistant Engineer, who
was working in the Rural Water Supply Office, Veligonda to the
M.R.O. M.R.O, in turn recommends to the R.D.O. Then the payment
would be made by way of cheque.
3. According to prosecution case, since Rs.1,500/- per month
was less, in the year 2004, an agreement was made to pay
Rs.3,000/- per month. Though, he supplied water from January,
2004 to May, 2004, he was not paid water charges. Thereafter,
P.W.1 stopped supply of water from June, 2004. In the 1st week of
July, 2004, the appellant who was working as Senior Assistant in
RDO office informed P.W.1 that a cheque for Rs.15,000/- towards
water supply was ready and asked P.W.1 to meet him. However,
demand of bribe of Rs.4,000/- was made by appellant to handover
cheque. P.W.1 requested to reduce the amount. However, appellant
insisted to pay the said amount to deliver the chqeue. The demand
was made on 17.07.2004 and again on 23.07.2004. Appellant asked
P.W.1 to come to RDO's office on 26.07.2004 and pay Rs.4,000/- to
collect the cheque. Aggrieved by the said demand, on 24.07.2004,
P.W.1 went to the ACB office and lodged Ex.P1 complaint. The trap
was arranged by the DSP on 26.07.2004.
4. On 26.07.2004, P.W.1/complainant, P.W.2/mediator,
P.W.8/DSP and others were formed as trap party. Pre-trap
proceedings were reduced into writing, which is Ex.P4 after
conclusion of the formalities before proceeding to the trial. The trap
party, then went to the R.D.O's office. While the other trap party
members waited outside, P.W.1 entered into RDO's office and 20
minutes thereafter, he came out and conveyed the signal to the trap
party. The trap party entered into the office and questioned the
appellant regarding the bribe. The appellant did not say anything
and since P.W.1 informed that the appellant took the amount and
kept in his right side pant pocket, his pant was tested with sodium
carbonate solution, which turned positive. The test on both the
hands also proved positive. Since the amount was not found, it is
further the case of the prosecution that P.W.1 informed that after
he gave the amount to the appellant, he observed the appellant
going towards almirah. Then, the trap party searched for the
currency and found the amount kept in a log book in the almirah.
The amount was seized including the relevant documents along
with the cheque Ex.P5. Thereafter, having concluded the
formalities including recording of statements of P.W.1/complainant
and seizures, post-trap proceedings under Ex.P9 was drafted.
Investigation was concluded by P.W.8 himself and filed charge
sheet.
5. Learned Special Judge having framed charges, examined
P.Ws.1 to 9 and Exs.P1 to 12 were marked on behalf of the
prosecution. MOs.1 to 10 were also placed on record by the
prosecution. Neither witnesses were examined nor any exhibits
marked on behalf of the appellant. Learned Special Judge, having
found the appellant guilty, convicted him accordingly.
6. Learned counsel appearing for the appellant would submit
that the prosecution has failed to prove the factum of demand since
P.W.1 has turned hostile to the prosecution case and was cross-
examined by the Public Prosecutor. According to the version given
by P.W.1, false complaint was filed to the narration given by the
DSP, ACB as to how the complaint should be filed. P.W.1 admitted
during cross-examination that he never met the appellant
personally prior to trap. In the said circumstances, the prosecution
has failed to prove factum of demand and accordingly, the recovery
on the trap date cannot form basis to convict the appellant for the
offence of bribery.
7. Learned counsel relied on the judgment of Hon'ble Supreme
Court in the case of Banarsi Dass v. State of Haryana (2010) 4
Supreme Court Cases 450). The Hon'ble Supreme Court was
dealing with the case wherein the witness turned hostile to the
prosecution case and accordingly, benefit of doubt was given.
Learned counsel also relied on the judgment of this Court in the
case of Bairam Muralidhar v. State of Telangana, ACB in
Criminal Appeal No.742 of 2023 dated 01.02.2024.
8. On the other hand, learned Special Public Prosecutor
appearing for the ACB would submit that the prosecution has
proved its case against the appellant though P.W.1 has turned
hostile to the prosecution case. The other circumstances have to be
looked into when the witnesses turn hostile. Since it was appellant
who had to issue the cheque and admittedly, Ex.P5 cheque was
made ready on 30.06.20004, however, till the date of trap i.e., on
26.07.2004 cheque was not handed over. It is clearly indicated that
only for the purpose of bribe, cheque was not issued to P.W.1. In
the said circumstances, the Court below has rightly convicted the
appellant. Learned Special Public Prosecutor relied on the judgment
of the Hon'ble Supreme Court in the case of M.O.Shamsudhin v.
State of Kerala (1995) 3 Supreme Court Cases 351) and Vinod
Kumar v. State of Punjab (2015) 3 Supreme Court Cases 220).
9. In Vinod Kumar's case (supra), the Hon'ble Supreme Court
found fault with the cross-examination being deffered. In the said
case, the witness had given different version during cross-
examination and turned hostile. The Hon'ble Supreme Court found
that the cross-examination should be directed to be completed on
the very same day or the next day. It is for the trial Court to
safeguard the interest of both the prosecution and the defence.
10. P.W.1 during his chief examination in the Court below, stated
that an amount of Rs.15,000/- was due for supply of water from
January, 2004 to May, 2004. When he came to know that the
cheque was ready in the RDO's office, he rang up the RDO's office
and one attender lifted who identified himself as Sai. According to
P.W.1, the said person namely Sai was working as Senior Assistant.
The said Sai informed that the cheque was pending regarding some
queries. The said version was stated by P.W.1 on 18.01.2008. His
chief examination was stopped and he was recalled for further chief
examination after six months i.e., on 14.07.2008. In his chief
examination on 14.07.2008, he stated that he made phone call to
RDO's office on 23.07.2004 and the appellant received phone and
informed that there were queries and demanded Rs.4,000/- for
issuance of cheque. Having informed that he would come to the
office on 26.07.2004, he approached the ACB office on 24.07.2004
and lodged Ex.P1 complaint. According to P.W.1, the ACB officials
asked him to write a complaint as though P.W.1 met the appellant
personally and demanded bribe. Thereafter, on the date of trap,
P.W.1 enquired about the appellant and met him. He asked about
the cheque and the appellant asked him to get the revenue stamp.
When P.W.1 went outside for the revenue stamp, the appellant
followed him and demanded to give the bribe amount. Then, P.W.1
passed on the bribe amount. After the appellant received the bribe
amount, P.W.1 relayed signal indicating demand and acceptance of
bribe by the appellant. Further, in his chief examination itself,
P.W.1 denied having informed the DSP that he met the appellant in
the first week of June and in person and there was demand of
Rs.4,000/- for issuing the cheque.
11. The Public Prosecutor then declared the witness hostile and
cross-examined P.W.1.
12. During cross-examination also, P.W.1 stated different versions
stating that bribe of Rs.5,000/- was demanded by the appellant
before the Magistrate. He denied a suggestion that different versions
are given by P.W.1 to help the appellant.
13. During cross-examination of the counsel for the appellant,
P.W.1 stated that he never met the appellant personally prior to the
date of trap. He also denied suggestions that there was any demand
by the appellant.
14. As discussed above, P.W.1 had given different versions during
his chief examination which was six months apart. However, in
chief-examination, he did not support the case of the prosecution
regarding demand of bribe being made by the appellant. P.W.1
stated that one Sai in the RDO's office had asked him to come down
to RDO's office and again he says that it was the appellant who had
received the phone call. However, P.W.1 stated that for the first
time, he met the appellant on the date of rap. The prosecution has
relied upon the evidence of P.W.1 only to prove the factum of
demand. P.W.1 stated that Ex.P1 complaint was drafted at the
instance of ACB officials and to their narration. P.W.1 never stated
that it was the appellant who had demanded bribe for the purpose
of issuing a cheque. Such different versions stated by P.W.1 cannot
form basis to infer demand made by the appellant. The burden is on
the prosecution to prove the aspect of demand beyond reasonable
doubt as stated by the Hon'ble Supreme Court in the case of
K.Shanthamma v. State of Telangana (2022) 4 Supreme Court
Cases 574) and B.Jayaraj v. State of A.P (2014) 13 SCC 55). Such
contradictory versions not supporting the prosecution, it cannot be
said that the prosecution has proved the aspect of demand.
15. Regarding recovery, recovery was admittedly made from the
almirah in a book. According to the version of the mediator and the
DSP, the appellant denied knowledge of any bribe. Further, at the
instance of P.W.1, almirah was searched and the trap party found
the amount in the book. It is not the case of the prosecution that
the appellant had pointed out as to where the amount was kept to
make such evidence admissible under Section 27 of the Evidence
Act. Such shaky evidence regarding demand and recovery which is
not at the instance of the appellant, cannot in any manner prove
the case against the appellant.
16. In view of above discussion, since the prosecution has failed to
prove its case against the appellant with reliable and convincing
evidence, benefit of doubt is extended to the appellant. Accordingly,
appellant succeeds.
17. In the result, the judgment of trial Court in CC No.17 of 2005
dated 19.11.2009 is hereby set aside and the appellant is acquitted.
Since the appellant is on bail, his bail bonds shall stand cancelled.
18. Criminal Appeal is allowed.
__________________
K.SURENDER, J
Date: 16.07.2024
kvs
