Telangana High Court

P.Baleshwaraiah, vs The State Of A.P., Rep By Pp., And ... on 13 November, 2024

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               HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.1617 OF 2008
JUDGMENT:

1. The appellant/accused was convicted under Sections 7 and

13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act,

1988 (for short 'the Act') and sentenced to undergo rigorous

imprisonment for a period of one year under both counts vide

judgment in C.C.No.4 of 2005, dated 11.12.2008 passed by the

Additional Special Judge for SPE & ACB Cases, Hyderabad.

Aggrieved by the same, present appeal is filed.

2. Briefly, the case of the prosecution is that P.W.1 is the

scribe of complainant and relative of Rathan Mairam-defacto

complainant (hereinafter referred to as 'deceased'). He was not

examined since he died prior to commencement of trial.

According to P.W.1, the appellant was working as Panchayat

Secretary of Kodangal Grampanchayat. The deceased was

working as scavenger in the said Grampanchayat. On

07.04.2003, deceased informed P.W.1 that the appellant was

asking him to do Kamati work and when he refused, the

appellant demanded Rs.15,000/- as bribe and threatened that if

he is not going to pay Rs.15,000/-, three months salary which

was due to the deceased would not be paid. The deceased further

informed that the appellant threatened that he would see to that

the deceased would be suspended if bribe is not paid. Further,

when the deceased requested the appellant, the appellant

demanded that at least Rs.4,000/- should be paid and remaining

amount would be collected from the salary which was due to be

paid to the deceased. Since the deceased was not inclined to pay

bribe, he took P.W.1 to the ACB office and Ex.P1 complaint which

was in hand writing of P.W.1 was filed. Ex.P1 was drafted to the

dictation of the deceased. The deceased went to the office of the

DSP, ACB and gave complaint and informed that P.W.1 that he

has to accompany deceased on 08.04.2003 to the DSP office, on

which date the trap would be arranged. The trap party gathered

in the office of the DSP on 08.04.2003. The DSP explained to the

complainant/deceased, P.W.1 and others the manner in which

the trap would take place and also asked the deceased not to

handover the amount unless demanded by appellant. Having

concluded pre-trap proceedings, Ex.P3 was drafted. The trap

party went near to the office of the appellant. The deceased and

P.W.1 went into the office of the appellant. P.W.1 accompanied

the deceased and on the demand of the appellant, Rs.4,000/-

was handed over. The appellant took the amount, kept in his

pant pocket and informed that he would not initiate any action

against the deceased. P.W.1 then came out and signaled to the

trap party indicating demand and acceptance of bribe by the

appellant. P.W.8/DSP and other trap party members entered into

the hall. Sodium carbonate solutions were prepared and the

appellant was asked to rinse his fingers in the solutions. The

solution of right hand turned pink in colour and the bribe

amount was handed from his pant pocket. The right side pant

pocket of the appellant was also subjected to test. Thereafter, the

version of the appellant and the deceased was recorded in the

post-trap proceedings. After conclusion of the post-trap

proceedings, investigation was handed over by DSP/P.W.8 to

Inspector/P.W.9. P.W.9 concluded investigation and filed charge

sheet.

3. The defence of the appellant is that his son got an

admission in Engineering Course and he requested the deceased

for payment of loan of Rs.20,000/- to enable him to pay college

fees for his son. The deceased had landed properties as well as

two Tractors and he was giving loans to various persons which is

evident from P.W.1's statement namely Balrajsingh, who is the

nephew of the deceased.

4. Learned Special Judge, having examined the evidence

placed on record by both the prosecution and the appellant,

found the appellant guilty and convicted him accordingly.

5. Learned counsel appearing for the appellant submits that

there must be official work to be complied in favour of the

deceased. The deceased was working as Scavenger and the post

of the Scavenger was abolished in that place and the deceased

was asked to work as Kamati, which was refused by the

deceased. He argued that according to procedure in Gram

Panchayat, the salaries would be paid for every three months

which is evident from the chief examination of P.W.3, who was

Junior Assistant, Gram Panchayat, Maqtal. In his cross-

examination, he deposed as follows:

"The disbursement of the salaries to the staff will be made once in 3 months. For every 3 months I prepared the pay bill vouchers for drawing of the salaries by way of cheque. Before 08-04-2003 the pay bill vouchers for the months of January, February, March were prepared including the cheques but they were not sent since LOC was not received."

He further submitted that the bill was sent on 08.04.2003,

but the complaint was made by the deceased on 06.04.2003 itself

and trap was laid on 08.04.2003. P.W.4/Bill Collector, Gram

Panchayat, Nagarkurnool, deposed as follows:

"The Salary bills of the entire staff will be prepared at one time and the salaries will also be disbursed at one time. The salary bills for the months of January, February, March, 2003 were prepared at one time, due to non issuance of LOC the pay bills could not be submitted."

6. Learned counsel further argued that there must be demand by

the appellant and the said demand must corroborate by another

independent witness. In the present case, there is no witness stating

that the appellant demanded bribe amount and deceased accepted. He

submitted that even according to the evidence of P.W.1, who

accompanied complainant for drafting and submission of complaint,

has not spoken about demand of bribe by the appellant. Entire

evidence led by the ACB, no one has spoken about demand of bribe by

the appellant from the complainant. The statement of deceased has

not stated that any another person is present when bribe was

demanded. In the absence of such corroborative evidence, convicting

the appellant is illegal. In support of his contention, he relied on the

judgments reported in the case of State through Central Bureau of

Investigation v. Dr.Anup Kumar Srivastava 1 and Ram Prakash

Arora v. The State of Punjab 2.

AIR 2017 Supreme Court 3698

AIR 1973 Supreme Court 498

7. On the other hand, learned Special Public Prosecutor would

submit that the amount was seized at the instance of the

appellant from his pant pocket. The version of loan cannot be

believed since the deceased was working as scavenger and the

theory of loan was afterthought when the trap party entered and

confronted the appellant.

8. The appellant was working from 16.11.2002 onwards in the

position of Panchayat Secretary. There was never any demand,

even according to P.W.1 till the date of complaint. According to

P.W.3, the disbursement of salary to the staff will be made every

three months and for every three months, bills will be prepared.

As on the date of trap i.e., 08.04.2003, the bill voucher for the

months of January, February and March were prepared by

P.W.3. However, the Letter of Credit was not received. It is not the

case of the prosecution that having received the amount, the

appellant had deliberately stopped the disbursal of the salary

until bribe was paid. Even as on the date of lodging complaint,

LOC was not received, as such, the question of disbursing the

salary does not arise.

9. The appellant at the earliest point of time, when he was

examined in the post-trap proceedings by P.W.8, informed that

the deceased had given the amount he asked as loan from P.W.1

for Rs.20,000/- to meet the expenditure of his son's education,

who was studying MCA at Moinabad. When both of them came

to the office and deceased gave amount, he accepted as part of

the loan amount that was asked. P.W.1 in his cross-examination

denied that the deceased and P.W.1 were money lenders and

money was lent to people. In support of claim of taking loan, the

appellant examined D.W.1, who is the Sarpanch of the Gram

Panchayat. According to him, on the date of trap, while he was in

the Gram Panchayat Office, the deceased went and gave amount

stating that it was the amount that was asked as loan for the

appellant's children. In fact, amount was taken and appellant

also gave receipt to the deceased. 10 minutes thereafter, the ACB

officials entered into the room and conducted proceedings. D.W.2

stated that the deceased has two sons and they were also doing

scavenger work. All the family members have seven or eight acres

in the village and he leased out two tractors. Deceased used to

lend amount and D.W.2 borrowed amount from the deceased.

D.W.3, who is resident of the Kodangal Village stated that the

deceased was a money lender and also lent amount. He owned

tractors, 10 to 12 acres of land and all the members of the family

of the deceased were employees. According to D.W.3, the

deceased bore grudge against appellant since he asked to do

duties of Kamati.

10. As already discussed, the salaries would be disbursed after

every three months once the amount is received from the

concerned. Admittedly, the amounts for the salaries of January,

February and March were not received. In the said

circumstances, the question of demanding bribe for paying salary

does not arise. As already discussed, it is not the case of the

prosecution that the appellant demanded the amount by keeping

the salary pending, though received and stopped disbursement.

11. The deceased, who is the defacto complainant died and he is

the only witness to the alleged demand. The circumstance proved

otherwise. The aspect of demand as projected by the prosecution

cannot be believed.

12. The appellant at the earliest point of time claimed that the

amount of Rs.4,000/- was towards loan which he had asked.

D.Ws.1 to 3 has specifically spoken about the deceased and

P.W.1 having several acres of land and were also into money

lending business. The deceased was also giving tractors on hire.

The earliest version of loan as stated by the appellant is

corroborated by the testimony of D.Ws.1 to 3. Only because

D.Ws.1 to 3 are defence witnesses, it does not mean that their

evidence has to be suspected or cannot be relied on. The Court

has to give equal weightage to both the defence and prosecution

witnesses.

13. The burden shifts onto the appellant since he has accepted

receiving amount, however, as loan. By producing the evidence of

D.Ws.1 to 3, the appellant has discharged his burden by

preponderance of probability.

14. The Hon'ble Supreme Court in the case of Parminder Kaur

alias P.P.Kaur alias Soni v. State of Punjab 3, wherein it is held

as follows:

"IV. Failure to refute Section 313 CrPC statement

22. Under the Code of Criminal Procedure, 1973, after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial court to fairly apply its mind and consider the defence, could endanger the conviction itself [ Reena Hazarika v. State of Assam, (2019) 13 SCC 289, para 19 : (2019) 4 SCC (Cri) 546] . Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities [M. Abbas v. State of Kerala, (2001) 10 SCC 103, para 10 : 2002 SCC (Cri) 1270] . Thus, once a plausible

(2020) 8 Supreme Court Cases 811

version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea."

15. The Hon'ble Supreme Court in the case of C.M.Girish Babu

v. CBI, Cochin, High Court of Kerala 4 found that explanation

that was given regarding the alleged gratification in the case was

probable, the same can be considered by Court. The Hon'ble

Supreme Court considered the said explanation and acquitted

the accused therein.

16. In view of the above discussion, the appellant succeeds and

the judgment of trial Court in C.C.No.4 of 2005, dated

11.12.2008 is hereby set aside. Since the appellant is on bail, his

bail bonds stand discharged.

17. Criminal Appeal is allowed.

__________________ K.SURENDER, J Date: 13.11.2024 kvs