Telangana High Court
Nimishakavi Kotilingam, vs State Of A.P., Rep By Pp., on 6 March, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.521 OF 2008
Between:
Nimishakavi Kotilingam ... Appellant
And
The State of A.P
rep. by Special Public Prosecutor ..Respondent/Complainant
DATE OF JUDGMENT PRONOUNCED : .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.521 of 2008
% Dated .03.2024
# Nimishakavi Kotilingam ... Appellant
And
$ The State of A.P
rep. by Special Public Prosecutor ..Respondent/Complainant
! Counsel for the Appellant: Sri G.U.R.C.Prasad
^ Counsel for the Respondent: Sri Sridhar Chikyala,
Special Public Prosecutor for ACB
>HEAD NOTE:
? Cases referred
1
2022(4) SCC 574
2
(1979) 4 SCC 725
3
Criminal Appeal No.121 of 1989 dated 08.03.1995
4
(2004) 3 Supreme Court Cases 753
3
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.521 OF 2008
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 six months and one year respectively vide judgment in CC
No.36 of 2004 dated 28.03.2008 passed by the Principal
Special Judge for SPE & ACB Cases, City Civil Court,
Hyderabad. Aggrieved by the same, present Appeal is filed.
2. The case against the appellant is that while he was
working as Senior Assistant in the office of Khammam
Municipality, Khammam District, demanded an amount of
Rs.2,000/- for the purpose of mutating the name of Banoth
Veerabhadra Rao, (defacto complainant, not examined during
trial due to his death) in respect of his half share property by
virtue of partition decree passed by the Lok Adalat. Pursuant
to the said demand, an amount of Rs.700/- was accepted as
part payment on 05.02.2003 on which date, the appellant was
trapped.
3. The complaint was filed on 03.02.2003. The said
complaint was given to the Deputy Superintendent of Police
and the complainant was instructed to get back on
05.02.2003, on which date, trap was arranged. Meanwhile,
antecedents of complainant and appellant were enquired. On
05.02.2003, the said complaint was registered for the offence
under Section 7 and 13(1)(d) of the Prevention of Corruption
Act.
4. On 05.02.2003, pre trap mediators' report Ex.P2 was
prepared in the presence of P.W.1, DSP and other officials.
Thereafter, the trap party proceeded to the office of the
appellant. P.W.1 who was working as Assistant Geologist in
the office of Mines and Geology and his colleague were asked
to act as mediators to the trap. After the pre-trap proceedings,
P.W.1 along with deceased complainant reached the office of
municipal Corporation, Khammam around 2.10 p.m. Both of
them went inside the office and other trap party members took
positions nearby the office. It was informed that the appellant
was not present and the same was conveyed to the DSP. The
DSP instructed P.W.1 and the complainant to wait till the
arrival of the appellant around 5.30 p.m. P.W.1 was informed
by the complainant that the appellant had come to the office
in jeep. Around 5.30 p.m, the complainant followed by P.W.1
met the appellant. According to P.W.1, the complainant asked
the appellant about mutation of the house in his favour.
Appellant asked the complainant whether he brought the
demanded amount, for which complainant took out the
amount from his shirt pocket and gave it to the appellant.
Appellant accepted the amount with his right had, counted the
said amount with both the hands and kept the amount in his
back side pant hip pocket.
5. The complainant then went out of the office to give pre
arranged signal and the DSP and others entered into the office
of the appellant. The complainant and P.W.1 pointed out the
appellant. Thereafter, the DSP and other trap party members
questioned the appellant. The said amount of bribe was
recovered from his right side pant pocket and the amount was
handed over by the appellant to trap party. The relevant files
of the complainant were asked to be produced by the
appellant. The appellant produced movements register Ex.P8.
He informed that the application of complainant was with
Vijender Reddy Revenue Inspector, who was examined as
PW2.
6. The staff searched for the file of the complainant in the
almirah of PW2 and found Ex.P4, file of one Nirmala in which
Ex.P4(a) application of complainant was found and same was
seized. The other relevant documents were also seized.
7. The trap party having concluded the post trap
proceedings drafted Ex.P9, which is the second mediators
report. Having obtained Sanction Order from the competent
authority, the investigating officer concluded investigation and
charge sheet was laid.
8. Learned Special Judge examined P.Ws.1 to 6 on behalf of
the prosecution and marked Exs.P1 to P15. The colleague of
the appellant namely M.Ramachandra Rao was examined as
defence witness D.W.1.
9. Since the complainant died even prior to his examination
before the Court, reliance was placed on the other evidence
that was available. Learned Special Judge found that the
demand of bribe and acceptance by the appellant were
convincing and accordingly convicted the appellant.
10. Learned counsel appearing for the appellant would
submit that in the absence of examination of the complainant,
the question of convicting the appellant does not arise. When
Rs.2,000/- was demanded, it is highly suspicious as to why
Rs.700/- was accepted on the date of trap. The demand and
acceptance of the bribe are inconsistent, which inconsistency
remains unexplained by the prosecution. P.W.4, who worked
as the Commissioner in Khammam District during the
relevant period, furnished information regarding the procedure
adopted in the municipal office. According to P.W.4, Ex.P11,
application has to be submitted to the municipal
Commissioner and thereafter, the application will be endorsed
in the Inward Section and from there to the concerned Section.
Ex.P4(a) was not at all placed before him.
11. Learned counsel further argued that when the procedure
was not followed, the question of appellant dealing with the
application of the complainant does not arise. Further the
application was seized by the trap party from the almirah of
PW2 and not from the appellant.
12. Learned counsel further submitted that in the absence of
proof of pending work with appellant and since file was with
P.W.2, the question of appellant demanding bribe does not
arise. He relied on the judgment of Hon'ble Supreme Court in
the case of K.Shanthamma v. The State of Telangana 1 and
argued that if the element of 'demand' is not proved, the
prosecution has to fail. He also relied on the judgment of the
Hon'ble Supreme Court in the case of Suraj Mal v. State
2022(4) SCC 574
(Delhi Administration) 2 wherein it is held that mere recovery
of amount divorced from circumstance would not be sufficient
to convict public servant for the acceptance of bribe. He also
relied on the judgment of Hon'ble Supreme Court in the case
of M.K.Harshan v. State of Kerala 3 and argued that burden on
the appellant is one of preponderance of probability and
accordingly appellant has discharged his burden. He also
relied on the judgment of Hon'ble Supreme Court in the case
of T.Shankar Prasad v. State of Andhra Pradesh 4 to support
his argument that presumption is rebuttable and any
explanation given by the accused, which is plausible can be
accepted for rebutting presumption.
13. On the other hand, learned Public Prosecutor would
submit that death of the complainant is of no consequence. In
fact PW1 was a witness to the demand and the amount was
recovered from appellant's pant pocket, which is sufficient to
(1979) 4 SCC 725
Criminal Appeal No.121 of 1989 dated 08.03.1995
(2004) 3 Supreme Court Cases 753
presume that appellant demanded and accepted the amount.
The findings of the trial Court are reasonable and cannot be
interfered with.
14. The sine qua non for proving any case of acceptance of
bribe amount is the 'demand' initially and subsequent
'acceptance' by the public servant. The prosecution has the
burden of laying foundation of proving the demand beyond
reasonable doubt as held by the Hon'ble Supreme Court in
several judgments. Mere recovery of the amount will not
suffice and prosecution has the burden to prove the demand
initially and thereafter, the acceptance can be made basis to
prove the case against the appellant.
15. In the absence of the complainant not being examined on
the death or for any reason, Court has to look into the other
factors and the evidence placed by the prosecution, both oral
and documentary to prove the case of demand and acceptance
of bribe by the public servant.
16. P.W.1 is the accompanying independent witness to the
conversation in between the complainant and the appellant.
He is also witness to the demand of bribe and acceptance on
the date of trap. The said amount was recovered from the back
pocket of the appellant.
17. P.W.4, who is the Commissioner, was examined and he
stated that the application of the complainant was not received
by him. However, P.W.2 the Revenue Inspector from whom
the application Ex.P4(a) of the complainant was seized, stated
that the appellant had handed over the file of one Smt.Nirmala
for the purpose of enquiry. However, he did not enquire into
the issue. The DSP when questioned about the application
filed by the complainant, the appellant informed that the
application of the complainant was in the file of Smt. Nirmala.
The said application of the complainant was found in the file
of said Smt. Nirmala.
18. P.W.2 did not have knowledge about the application
made by the complainant. The complainant's case is that he
had given the application to the appellant. The application was
not forwarded to the Commissioner/P.W.4 nor procedure was
followed when any application was received. The appellant had
kept the mutation application Ex.P4(a) of the complainant in
the file of another person namely Nirmala, without taking any
steps on the application and further according to the
complainant, demanded amount of bribe for mutation. The
said application was in fact pointed out by the appellant
during course of investigation when questioned by the DSP.
The appellant had exclusive knowledge about the application
of the complainant. In the said circumstances, it can be
safely inferred that having taken the application from the
complainant, the appellant had placed the application in the
file of one Nirmala without processing the said application. It
was not forwarded to P.W.4, in accordance with the procedure
laid down. It cannot be said that no work was pending with
the appellant nor the appellant did not have anything to do
with the said application. According to P.W.4, the appellant
was in charge of A1 Section and responsible for undertaking
mutation.
19. Counsel argued that since no work was pending, the case
of the prosecution cannot be accepted. In fact, the appellant
had come up with the version of taking loan from the
complainant. He examined D.W.1, who is his colleague in the
office to state that the amount of Rs.700/- was towards
repayment of loan. Having accepted the acceptance of amount,
presumption under Section 20 of the Act arises and the
burden shifts on to the appellant to prove that the said
amount was received as repayment of loan. Both during the
course of post trap proceedings and during the examination of
P.W.1, the said defence of accepting the amount towards
repayment of loan was not taken. The said defence was taken
later. Having not taken defence of repayment of loan during
examination of P.W.1, who is an eye witness to the demand
and acceptance of bribe, later appellant took defence that the
amount was towards discharge of loan. As already stated,
there is no evidence that is produced by the appellant to show
that the complainant was an acquaintance or known to him or
on which date the said loan was advanced by the complainant.
In the absence of any such evidence, it cannot be said that the
appellant had discharged his burden by merely suggesting
that the said amount was accepted towards repayment of loan.
20. In the present case, it clearly indicates that the appellant
had misused his official position to demand bribe from the
complainant. The stand taken by the appellant that the
property for which mutation was sought, was acquired by
virtue of decree passed in the Lok Adalat, but the said decree
of the Lok Adalat was not placed by the prosecution before the
Court to accept the version that the complainant had the
property in his name for which mutation was required, cannot
be accepted
21. Not filing the said Lok Adalat decree is of no
consequence. The application made by the complainant for
mutation of property was in fact pointed out and produced by
the appellant. Having taken defence of repayment of loan, no
proof or evidence was produced in support of his defence.
22. In the facts and circumstances of the present case,
prosecution has proved the factum of demand and the
consequent acceptance of bribe. This Court is not inclined to
interfere with the conviction of the appellant by the trial Court.
23. Criminal Appeal is dismissed.
_________________
K.SURENDER, J
Date: 06.03.2024
Note: LR copy to be marked.
B/o.kvs
