Telangana High Court
S.K.Kashmir Kumar, Vanastalipuram., vs State Of Ap. Rep. Spl. Pp For Acb Cases, ... on 24 July, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1145 OF 2013
JUDGMENT:
1. The appellant is sole accused in C.C.No.21 of 2008 on the file
of the Principal Special Judge for SPE & ACB Cases, at Hyderabad.
He was tried for the offence punishable under Sections 7 & 13(1)(d)
r/w 13(2)of the Prevention of Corruption Act and convicted.
Aggrieved by the same, present appeal is filed.
2. The appellant was working as the auditor, D-2 Section, Unit-1,
Pay and Accounts Office, Hyderabad. P.W.1 was running a
mechanic shop and undertaking vehicle repairs of the Prohibition &
Excise Department. It is alleged that his bill for Rs.5,945/- towards
the Jeep bearing No. ABD-9525 was pending. As per the advice of
one S.Vijay Kumar, P.W.1 met the appellant on 06.09.2007 for
passing the bill, for which, the appellant demanded bribe of
Rs.1,000/-. On request, the bribe was reduced to Rs.700/- to be
paid by 7.9.2007. Aggrieved by the demand of bribe, P.W.1 gave
complaint to the DSP, ACB on 6.9.2007.
3. The complaint was received by the DSP/P.W.9 on 06.09.2007
and trap was arranged on 07.09.2007. P.W.1/complainant,
P.W.2/independent mediator, P.W.9/DSP and others formed part of
the trap party. In the office of the DSP, pre-trap proceedings were
concluded and drafted. Ex.P4 is the pre-trap proceedings. The said
proceedings were concluded around 3.00 p.m and from there, the
trap party went near the office of Pay and Accounts, Tilak Road.
P.W.1 went inside the office while other trap party members were
waiting at a distance for the signal of P.W.1. P.W.1 met the
appellant, who asked for the amount. The said bribe amount was
handed over to the appellant. According to P.W.1, appellant
promised to pass the bill. P.W.1 came out and signaled to the trap
party indicating demand and acceptance of bribe by the appellant.
The trap party entered into the office and DSP questioned the
appellant regarding the bribe. Test was conducted on the both
hands fingers. The right hand test proved positive while the left
hand fingers test proved negative. The amount was handed over
from his shirt pocket by the appellant.
4. The resultant solutions of test, the concerned bill Ex.P5 and
other documents were seized during the post-trap proceedings and
after conclusion, proceedings were drafted under Ex.P10.
Investigation was then handed over by P.W.9/DSP to the
Inspector/P.W.10, who concluded investigation and after obtaining
sanction for prosecution, charge sheet was filed.
5. Learned Special Judge examined P.Ws.1 to 10 and marked
Exs.P1 to P13 on behalf of the prosecution. The material objects
MOs.1 to 8 were also brought on record during the evidence of
prosecution witnesses. The appellant examined D.W.1, who earlier
worked as auditor at the relevant time when the trap had taken
place.
6. Learned counsel appearing for the appellant would submit
that from the evidence and documents placed on record by the
prosecution on 18.08.2007 itself, the bill Ex.P5 was returned by the
appellant and confirmed by the Office Superintendent on
05.09.2007. However, the present complaint was filed on the next
day i.e., 06.09.2007. According to the counsel, P.W.1 had
knowledge about the refusal of his bill which was endorsed by the
appellant on 18.08.2007 itself and returned with an endorsement
"under which authority an amount of Rs.5,945/- was sanctioned
towards vehicle repairs." Thereafter, the file was returned which
return was approved by the Superintendent.
7. Learned counsel further submits that even on the trap date,
Ex.P5 bill was not seized from the possession of the appellant but
from P.W.3. In the said circumstances, when no work was pending,
even according to the prosecution witness P.W.3, the question of
demanding bribe would not arise. Even on the date of trap,
independent mediator/P.W.2 stated that, when appellant was
questioned during post-trap proceedings, the appellant stated that
the amount was forcibly thrust into his shirt pocket and then the
amount was taken out from his shirt pocket and handed over. The
said fact of thrusting the amount by P.W.1 is also stated by the
auditor, who was in the office on the date of trap and examined as
D.W.1.
8. Learned counsel relied on the judgment of Hon'ble Supreme
Court in the case of Punjabrao v. State of Maharashtra (2002) 10
Supreme Court Cases 371) and argued that the accused can
discharge his burden by preponderance of probability and the
defence stated even during Section 313 Cr.P.C examination, if
found to be probable, the same can be accepted.
9. On the other hand, learned Special Public Prosecutor would
submit that Ex.P5 bill was in fact pending and to the knowledge of
P.W.1, it was not returned. Keeping P.W.1 in the dark, the demand
was made and the money was accepted on the trap day. The bill,
though initially rejected, can as well be passed at a later date. For
the said reason, the bill under Ex.P5 was passed subsequently on
31.10.2007, which would go to show that the bill was proper. In the
said circumstances, the prosecution has proved its case of demand
and acceptance by the appellant.
10. The admitted facts in the case are that Ex.P5 bill of P.W.1,
which is dated 09.08.2007 was returned by the appellant after ten
days i.e., on 18.08.2007. The said return was also approved by
Superintendent and the bill was in the 'Return Counter'. The said
version is stated by P.W.3 in his chief examination.
11. According to P.W.1, he met the appellant on 06.09.2007 and
demand of Rs.1,000/- was made. P.W.1 met the appellant on
06.09.2007 since it was informed by one Vijay Kumar that the
appellant wanted to meet him. The said Vijay Kumar who allegedly
informed P.W.1 to meet the appellant was not examined. There is
no mention on which date the said Vijay Kumar informed P.W.1 to
meet the appellant. On the day of alleged demand i.e., on
06.09.2007, the very same day, complaint was lodged. When Ex.P5
was scrutinized and returned on 18.08.2007 itself and return being
approved, the file was sent to 'Return Counter'. In the said
circumstances, the version of P.W.1 that bribe was demanded for
paying bill is highly improbable.
12. Though in the post trap proceedings, it was mentioned that
Ex.P5 was seized from the possession of the appellant, however,
P.W.3 in his chief examination stated that on the date of tap, he
obtained bill Ex.P5 from the return counter and handed it over to
the DSP. The DSP took photocopy of Ex.P5 and informed that he
would take the original bill later. However, it is mentioned in Ex.P10
post-trap proceedings that Ex.P5 was handed over by appellant,
which is factually incorrect.
13. P.W.2/independent mediator stated in his chief examination
that the appellant informed DSP that the amount was forcibly kept
by P.W.1 in his pocket. P.W.2 is not declared hostile to the
prosecution case and it is evident from the record that the said
version given by the appellant immediately on the date of trap was
not reflected in second mediator's report Ex.P10. It is apparent that
the second mediators report Ex.P10 does not contain the actual
happenings and drafted with incorrect recitals to suit the case of
prosecution. The actual happenings were suppressed regarding
Ex.P5 bill and explanation of appellant on the trap day which is
fatal to the prosecution case.
14. For the reasons discussed above, the judgment of trial Court
in C.C.No.21 of 2008 dated 16.12.2013 is set aside and the
appellant is acquitted. Since the appellant is on bail, his bail bonds
shall cancel.
15. Criminal Appeal is allowed.
__________________
K.SURENDER, J
Date: 24.07.2024
kvs
