Telangana High Court
C.Yellaiah, R.R.District vs The State Acb, Hyd Range, Hyd, Rep.By Spl ... on 13 March, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.569 OF 2009
Between:
Chandragiri Yellaiah ... Appellant
And
The State ACB, Hyderabad Range
rep. by Special Public Prosecutor ..Respondent/Complainant
DATE OF JUDGMENT PRONOUNCED : 13.03.2024
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 their fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No.569 of 2009
% Dated 13.03.2024
# Chandragiri Yellaiah ... Appellant
And
$ The State ACB, Hyderabad Range
rep. by Special Public Prosecutor ..Respondent/Complainant
! Counsel for the Appellant: Sri G.Vidya Sagar, Senior Counsel for
Sri Vanam Vishwanatham
^ Counsel for the Respondent: Sri Sridhar Chikyala,
Special Public Prosecutor for ACB
>HEAD NOTE:
? Cases referred
2022(4) SCC 574
3
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.569 OF 2009
JUDGMENT:
1. The appellant was convicted for the offence under Section
7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988
and sentenced to undergo rigorous imprisonment for a period
of one year under both counts vide judgment in C.C.No.26 of
2007 dated 30.04.2009 passed by the Additional Special
Judge for SPE & ACB Cases, City Civil Court, Hyderabad.
Learned Special Judge found him guilty for demanding and
accepting bribe of Rs.4,000/-.
2. Briefly, the case of P.W.1 is that he inherited Acs.3.10
guntas of land at Adibatla village after the properties were
shared amongst four brothers. Since partition was done, for
the purpose of fixing boundaries to his property, P.W.1, who is
the complainant approached the MRO office on 30.08.2006
and submitted an application Ex.P2 along with challan Ex.P3.
MRO/P.W.5 endorsed on the said application Ex.P3 as
"Surveyor, pl get it surveyed urgently". The appellant did not
give any receipt on that day but asked PW1 to take photocopy
of the application which is with the endorsement of the MRO.
Appellant demanded an amount of Rs.5,000/- for the purpose
of giving notice to other pattadars and to do survey. Again
P.W.1 met the appellant on 11.09.2006 and the appellant
insisted on the bribe, however, reduced the bribe amount to
Rs.4,000/-.
3. Aggrieved by the persistent demand of bribe by the
appellant, P.W.1 approached the ACB authorities, after
drafting complaint Ex.P1 with the help of his son. Having
received the complaint on 11.09.2006, P.W.1 was asked to
come on 13.09.2006 with the bribe amount. The proceedings
started at 7.00 a.m on 13.09.2006 and the formalities before
proceeding to lay a trap were followed by the DSP in the
presence of the other trap party members. Ex.P5 pre-trap
proceedings were drafted before proceeding to the office of the
MRO to handover bribe when demanded by the appellant.
4. The trap party approached the office around 9.00 a.m
and P.W.1 went inside. The appellant was sitting along with
two persons and after they left, appellant asked whether bribe
amount was brought. The amount was handed over by PW1 to
the appellant, which was kept in his shirt pocket; P.W.1
signalled to the trap party intimating acceptance of bribe by
the appellant. The trap party entered into the room where the
appellant was sitting and confronted regarding acceptance of
bribe. According to mediator and DSP, initially, the appellant
stated that P.W.1 offered the amount which was kept in his
left shirt pocket and again stated that the amount was
forcefully thrust into his shirt pocket though he resisted.
5. The hands of the appellants were tested and right hand
turned positive and left hand tested negative for the test. The
amount was handed over to the trap party. Appellant was
asked to give the application filed by P.W.1, however, on
searching the almirah, the application was not found. P.W.3
another clerk also searched but the application could not be
traced. Then P.W.1 produced photocopy of the application
stating that he had taken the photocopy after the MRO
endorsed on it to the appellant. Having concluded the
formalities during post-trap proceedings, the proceedings were
concluded and Ex.P11 was drafted.
6. The Investigating Officer examined witnesses, obtained
sanction and filed charge sheet after completion of
investigation. The prosecution examined witnesses PWs.1 to 8
and marked Exs.P1 to P15. On behalf of the defence, DWS.1
& 2 were examined and two documents Exs.D1 & D2 were
marked. Having considered the evidence on record, the Special
Judge convicted the appellant.
7. Learned counsel appearing for the appellant would
submit that firstly, no proof is filed by P.W.1 to show that he
was in possession of Acs.3.10 gutas after the property was
partitioned in between the brothers. In fact, Ex.D1 is the
certified copy of the sale deed which reflects that all the
brothers sold Acs.18.10 guntas to M.Vijay Bhaskar Reddy on
29.04.1987 under registered sale deed and it was accepted by
the witnesses. The version of P.W.1 that the sale deed was
cancelled and that they were in possession from 2004 is not
proved by the prosecution. In the absence of possessing any
land after land being sold, the question of seeking survey does
not arise. It appears that on the pretext of survey, P.W.1
wanted to create litigation and illegally encroach upon the
land which was already sold. Appellant was falsely implicated
when it was informed that survey could not be conducted,
since PW1 did not possess any land. The prosecution has
failed to prove that the application Ex.P3 was handed over to
the appellant/surveyor for the purpose of conducting survey.
He relied on the judgment of Hon'ble Supreme Court in the
case of K.Shanthamma v. The State of Telangana 1. The
Hon'ble Supreme Court held that unless the prosecution
proves the factum of "demand", by convincing evidence, mere
recovery of the amount cannot be made basis to convict the
accused.
8. On the other hand, learned Special Public Prosecutor for
ACB would submit that the amount was recovered from the
shirt pocket of the appellant. He had given two versions at the
time of post trap proceedings. Taking advantage of the
2022(4) SCC 574
application not being traceable, the appellant had stated that
he had not received Ex.P3 and it must have been handed over
to P.W.3. However, PW.3 stated that no such application was
given to her. In the back ground of pending work before the
appellant and the consequent recovery on the date of trap
would only go to show that the appellant had demanded and
accepted bribe amount.
9. The prosecution had relied on Ex.P3 which is an
application given by P.W.1 for the purpose of surveying
Acs.3.10 gutnas of land. It is admitted by P.W.1 that the
application was given to P.W.5, who had endorsed on the said
application and forwarded it to the appellant. In the complaint,
it is not mentioned that P.W.5 handed over original Ex.P3 to
P.W.1, in turn to hand it over to the appellant. However, the
said version of the application being signed by P.W.5 and
handing it over to P.W.1 had come up for the first time during
post trap proceedings. Having failed to trace out the original
application Ex.P3, the DSP had taken photocopy of Ex.P3,
which is Ex.P2 and proceedings were concluded. Ex.P3
original was traced on 01.11.2006 after nearly 50 days of the
trap. The said application was handed over by P.W.5 to the
Investigating authorities.
10. No proceedings were conducted by P.W.5 when the said
original was traced. P.W.3 did not state as to where from the
original Ex.P3 was traced. Likewise, P.W.5 also did not state
as to where from Ex.P3 was traced. However, P.W.5 stated that
in between two almirahs in the room of the appellant,
application Ex.P3 was found. In the back ground of P.W.1 not
mentioning that the original application was endorsed by
P.W.5 and handed over to him, creates any amount of doubt
regarding the version given by P.W.1 and P.W.5, subsequently.
11. The MRO who is P.W.5, without following the process
would not have endorsed on the application Ex.P3 and handed
over the same to P.W.1. Admittedly, there is no record in the
office apart from endorsement made on Ex.P3 and stated by
P.W.5 that he had endorsed on it, to show that the application
was received in the office. According to the procedure,
registers are maintained and entry should have been made in
the said register for receiving the said application. None of the
registers in the MRO office reflect receipt of the said
application. P.W.5 did not explain as to why he had not
followed the procedure in case of P.W.1 while receiving the
application Ex.P3 for survey.
12. The other important aspect is the failure of the
prosecution to prove that P.W.1 was possessing Acs.3.10
guntas of land in Sy.No.45 of Adibatla village. Having admitted
that the land was sold by him and his brothers vide Ex.D1 on
29.04.1987 in which P.W.1's name is shown as 4th vendor, no
document is produced to show that the said sale deed was
cancelled nor the purchaser M.Vijay Bhaskar Reddy was
examined. Once a claim is made that the said sale deed was
cancelled, duty is cast upon P.W.1 to produce the relevant
documents to show that he was in possession of the said land
and Ex.D1 was cancelled. In the absence of any proof to show
that Ex.D1 was cancelled and P.W.1 being in possession of
Acs.3.10 guntas of land, the question of causing survey does
not arise.
13. Ex.P3, which is an application seeking survey was given
to P.W.5, who did not follow the procedure. Ex.P3 was not
traced in the office and it was traced only 50 days after the
trap. The question of appellant surveying the land and to fix
boundaries of the property would not arise. The Government
Surveyor would only demarcate the extent of land in a
particular survey number and will not demarcate land on the
basis of any settlement or partition in between six brothers. In
the event of any such settlement in between members of the
family distributing land amongst themselves, it is for the
brothers to engage a private surveyor to demarcate their
respective extents in accordance with the division of land.
None of the five other brothers are examined to state that
Ex.D1 was cancelled or that PW1 was in possession of land to
an extent of Ac.3.10 guntas.
14. In the above mentioned circumstances there would arise
any amount of doubt regarding demand made by the appellant
in the absence of P.W.1 possessing any land. For the said
reason, recovery of the amount from the appellant cannot be
made basis when the very prosecution version of P.W.1
possessing land is not proved. For the aforementioned
reasons, benefit of doubt is extended to the appellant.
15. In the result, the judgment of trial Court in C.C.No.26 of
2007 dated 30.04.2009 passed by the Additional Special
Judge for SPE & ACB Cases, City Civil Court, Hyderabad, is
hereby set aside. Since the appellant is on bail, his bail bonds
shall stand cancelled.
16. Criminal Appeal is allowed.
_________________
K.SURENDER, J
Date: 13.03.2024
Note: L.R. copy to be marked.
kvs
