Telangana High Court
B. Raghu Kumar, vs The State Of Ap Rep By Its Spl. Pp Hyd. For ... on 13 November, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
CRIMINAL APPEAL No.1795 OF 2007
*****
Between:
B.Raghu Kumar ... Appellant
And
The State ACB, City Range-I ... Respondent
DATE OF JUDGMENT PRONOUNCED: 13.11.2024
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
+CRIMINAL APPEAL No.1795 OF 2007
% Dated 13.11.2024
#M.Raghu Kumar ... Appellant.
And
$ The State ACB, City Range ... Respondent
! Counsel for the Appellant: Sri M.Vishwanath Prasad
^ Counsel for the Respondent: Sri Sridhar Chikyala,
Spl. Public Prosecutor.
>HEAD NOTE:
1
AIR 1976 SC 1497
2
(2007) 3 SCC (Cri) 475
3
Criminal Appeal No.1592 of 2022 dated 17.04.2023
4
2009 (6) SCC 587
5
2014 (13) SCC 55
6
AIR 2012 SC (Criminal) 911
7
(2021) 3 SCC 687
8
AIR 2015 Supreme Court 3549
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1795 OF 2007
JUDGMENT:
1. The appellant was convicted for the offence under Sections 7
and 13(1)(d) r/w 13(2) of Prevention of Corruption Act and
sentenced to undergo rigorous imprisonment for a period of one
year under both counts vide judgment in C.C.No.11 of 2003 dated
17.12.2007 passed by the Principal Special Judge for SPE & ACB
Cases, Hyderabad.
2. Briefly, the case of the prosecution is that P.W.1/defacto
complainant was working as Assistant Professor of Pediatrics,
Andhra Medical College, Visakhapatnam. Earlier in the year 1999,
he worked as an employee in the State Government Medical
Services and even prior to that, he worked in Army Medical Corps at
various places. According to the Government Rules, the Army
service of P.W.1 had to be considered for fixing seniority in the A.P.
Medical Services along with financial benefits. During May, 1999
P.W.1 applied for inclusion of his Army Service seniority in the
State Government Services in the office of the Directorate of Health.
The file was not processed. P.W.1 went to the Director, Medical
Education on 26.11.1999 and on verification, he came to know that
the appellant was dealing with Section E-11 where application was
pending. When P.W.1 met the appellant, it was informed that there
were some issues in the Tribunal relating to seniority. Since the
appellant stated that Army Service Certificate was not available in
the record, P.W.1 provided a copy of it. Then, the appellant
demanded Rs.5,000/- to process the application of P.W.1. P.W.1
gave an amount of Rs.100/- or Rs.300/-However, having received
the said amount, the appellant asked P.W.1 to come on the next
day along with Rs.5,000/- bribe.
3. P.W.1 then went to the ACB office on 27.11.1999 and lodged a
written complaint Ex.P1. The DSP/P.W.6 received the complaint at
10.30 a.m and registered it at 11.30 a.m. On the same day, trap
was arranged at 12.30 p.m. P.W.6 sent for two independent
mediators, who are P.W.2 and another. In the presence of P.Ws.1,
2, 6 and other trap members, the formalities before proceeding to
trap were completed in the office of ACB. Pre-trap proceedings are
Ex.P2. The trap party left the office of the ACB at 1.30 p.m and
went near the office of Director, Medical Education, Koti,
Hyderabad. Both P.W.1/complainant and the independent mediator
P.W.2 went into the office of the appellant. P.W.1 met the appellant
and both P.W.1 and appellant came out and went towards canteen.
P.W.2 stayed at a distance. The trap party members saw P.W.1
handing over currency notes to the appellant and having received
the said amount, the appellant placed it in his pocket. P.W.2 having
witnessed something being handed over by P.W.1 to appellant,
relayed signal to the trap party indicating acceptance of bribe by the
appellant. The DSP/P.W.6 and other trap party members went near
the appellant and questioned about the bribe. Sodium carbonate
solution test was conducted on both the hands of the appellant,
which turned positive. Since several persons gathered at the scene,
trap party shifted to office room of the appellant and proceedings
continued. The statements of P.W.1 and appellant were recorded
and the relevant documents were also seized. After conclusion of
post-trap proceedings, same was drafted, which is Ex.P3. The
investigation was then handed over by P.W.6 to P.W.7, who
recorded the statements of P.Ws.1, 4 and others. Thereafter, charge
sheet was filed, after receiving sanction order from the competent
authority to prosecute the appellant.
4. The defence of the appellant is that the appellant was not
deciding authority and not competent to decide or fix seniority of
P.W.1 nor can he recommend regarding the acceptance of seniority
by considering his service in the defence service. The said fact that
the appellant has no power to fix seniority is also known to PW.1,
as such, the question of demanding bribe by the appellant does not
arise. P.W.2, who is the independent witness to the proceedings was
declared hostile and did not support the prosecution version
regarding demand and acceptance of bribe by the appellant. The
evidence of D.W.1 shows that when P.W.1 and the appellant were in
the canteen area, P.W.1 thrust the amount in the pocket of the
appellant, when the appellant refused to take the said amount.
5. Learned Special Judge placing reliance on the fact that when
the application was made in the office, the appellant should have
returned the application to P.W.1 and should not have asked for
P.W.1 to furnish Army Service certificate. The appellant should have
directed P.W.1 to approach the concerned authorities and inform
P.W.1 that office of Director, Medical Education could not help him.
However, the appellant made P.W.1 believe that the office of
Director, Medical Education was having authority and accordingly,
demanded bribe. Learned Special Judge also placed reliance on the
judgment of the Hon'ble Supreme Court in the case of Chaturdas
Bhagwandas Patel v. The State of Gujarat 1, wherein it was held
that it is not necessary in a case where a public servant was in a
position to extract illegal gratification, for the Court to consider
whether the public servant was capable of doing such favour.
Similar view was also taken in Girja Prasad (dead) by Lrs v. State
of M.P 2.
6. Learned counsel appearing for the appellant argued that the
defence taken in the lower Court by the appellant was probable and
even to the knowledge of P.W.1, the appellant had no authority to
consider or process the application for the consideration of seniority
of P.W.1. He relied on the following judgments: (i) Soundarajan v.
State rep. by the Inspector of Police Vigilance Anticorruption
AIR 1976 SC 1497
(2007) 3 SCC (Cri) 475
Dingidul 3, (ii) A.Subair v. State of Kerala 4, (iii) B.Jayaraj v. State
of A.P 5 and (iv) State of Kerala and another v. C.P.Rao 6.
7. Having gone through the record, the admissions of witnesses
would be relevant.
P.W.1 admitted in his evidence as follows:
"As per the State Service Regulation as on the date of my complaint
and also the trap, the Director, Medical Education was not competent
to fix the seniority."
"It is true that AO stated to me that case is pending in APAT,
therefore my seniority cannot be fixed. It is true that AO informed
that Director of Medical and Health was competent to recommend for
fixing my seniority to the Government and that the Government in
turn issues orders."
8. P.W.4, Director of Medical Education deposed as follows:
"After the trap against AO I fixed the seniority on 5.12.99 vide Ex.D1
Government of AP cancelled the said fixations orders made by me. Fixing of
seniority is administrative decision. Only in case of favourable rule
provisions such application will be processed. To my knowledge no
complaints were received against AO much less corruption. It is true that
AO was sincere and hardworking employee."
9. P.W.5, Section Officer, Department of Health, Medical and
Family Welfare deposed in his evidence as follows:
Criminal Appeal No.1592 of 2022 dated 17.04.2023
2009 (6) SCC 587
2014 (13) SCC 55
AIR 2012 SC (Criminal) 911
"Director of Medical and Health was the appointing authority of the P.W.1
and he alone is competent to fix the seniority of PW1."
10. P.W.8, Deputy Director of Medical Education, deposed in his
evidence as follows:
"Without finalizing the seniority list as per Ex.D3 there was no
possibility to AO to put up note with regard to PW1's seniority to
higher officials."
11. In Ex.P4(b), there is one letter appended which is addressed by
P.W.1 to the Principal Secretary to Government, Health, Medical
and Family Welfare, Andhra Pradesh, Hyderabad requesting to
consider the Military Service for the purpose of seniority and other
benefits. In the said letter, he also stated that the matter was
pending with the Government for long period. The said letter is
dated 19.11.1999. The said letter which was filed by the
prosecution and written by P.W.1 would go to show that P.W.1 had
knowledge about the department of Department of Health, Medical
and Family Welfare was the competent authority to consider his
Military Service for the purpose of seniority. Ex.P4(b) is the letter
addressed by the Principal, Andhra Medical College,
Visakhapatnam to the Director of Medical Education, Andhra
Pradesh forwarding representation of P.W.1.
12. When P.W.1 was aware that it is for the Medical, Health and
Family Welfare Department and not the Director of Medical
Education, which was competent to consider his seniority in the
Military Service, the question of P.W.1 approaching the office of
Director of Medical Education appears to be doubtful. In fact the
letters addressed in Exs.P4(a) and P4(b) requesting the Principal
Secretary to Government, Ministry of Health, Medical & Family
Welfare, Government of Andhra Pradesh were forwarded by the
Principal of Andhra Medical College, Visakhapatnam on 29.04.99
itself, as seen from the endorsement on Ex.P4(a).
13. In the said back ground, the manner in which the complaint
was filed, trap was arranged is also suspicious. The alleged demand
of bribe was on 26.11.1999. When the representations made by
P.W.1 to the Ministry of Health, Medical & Family Welfare ere
already forwarded on 29.04.1999 under Ex.P4(a) and much before
trap on 19.11.1999 under Ex.P4(b), there arises any amount of
doubt regarding the version of P.W.1 in his complaint that the
appellant demanded Rs.5,000/- for processing and putting up
favourable note.
14. The complaint was filed at 10.30 a.m on 27.11.1999. At 11.30
a.m within one hour, the crime was registered. Apparently, the DSP
or any other ACB officer had not conducted any enquiry into the
correctness or otherwise of the complaint. It is the bounden duty of
the DSP, ACB to enquire into the correctness or otherwise of the
complaint. The trap party gathered in the office at 12.30 pm i.e.,
within one hour of registering the complaint. Admittedly, no record
was produced before the DSP along with the complaint by P.W.1.
Basing on the averments made in the complaint within two hours,
the trap was arranged and the appellant was caught.
15. P.W.2 who was the independent mediator to the proceedings
stated that he was not a direct witness to the demand by the
appellant. In fact, he has seen from a distance that something was
passed on to the appellant and he relayed signal. D.W.1 was the
Senior Assistant and D.W.2 was the Attender in E-11 Section of
Director of Medical Education. Both D.Ws.1 and 2 deposed
regarding P.W.1 forcibly thrusting the amount into the pocket of the
appellant.
16. The version of demand of bribe as stated by P.W.1 cannot be
believed in the back ground of P.W.1 having knowledge that the
appellant has nothing to do with either recommending the seniority
or forwarding any note to the Department of Health, Medical &
Family Welfare, which the appellant was working in the department
of the office of Director of Medical Education. Prosecution has failed
to prove demand aspect and the undue haste shown by the DSP in
trapping the appellant without there being any preliminary enquiry
into the complaint or the DSP having any kind of documents to
substantiate the allegations in the complaint throws any amount of
doubt.
17.In N.Vijaykumar v.State of Tamil Nadu 7, the Hon'ble Supreme
Court held mere recovery of tainted money, divorced from the
circumstances under which such money is found is not sufficient to
convict the accused when the substantive evidence in the case is
not reliable. In P.Satyanarayana Murthy v. District Inspector of
Police 8 , the Hon'ble Supreme Court held that mere recovery or
acceptance of the amount dehors the proof of demand, would not be
(2021) 3 SCC 687
AIR 2015 Supreme Court 3549
sufficient to convict an accused under Sections 7 and 13 (1)(d) of
the Prevention of Corruption Act.
18. In the result, the judgment of the trial Court in CC No.11 of
2003 dated 17.12.2007 is hereby set aside and the appellant is
acquitted. Since the appellant is on bail, his bail bonds shall stand
discharged.
19. Accordingly, Criminal Appeal is allowed. Consequently,
miscellaneous applications, if any, shall stand closed.
__________________
K.SURENDER, J
Date: 13.11.2024
kvs
