Telangana High Court
Yalagandula Gandhi, vs The State Acb , Khammam, Warangal Range, on 4 October, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.142 OF 2009
JUDGMENT:
1. The appellant was convicted by the Principal Special Judge for
SPE & ACB Cases at Hyderabad and sentenced to undergo rigorous
imprisonment for a period of six months and one year under
Sections 7 & 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,
respectively, vide judgment in C.C.No.48 of 2004 dated 23.01.2009.
Aggrieved by the same, present appeal is filed.
2. Briefly, the case of the prosecution is that the defacto
complainant/P.W.1 was working as Attender in the office of District
Panchayat Office, Khammam. On 12.09.2002, while himself and one
Rajeshwar Reddy, who was working as District Panchayat Officer,
went to Hyderabad on official work and while returning from
Hyderabad on the same night, when their vehicle reached near
Kuchimanchi, the vehicle in which they were traveling met with an
accident. As a result of which, they sustained bleeding injuries and
were shifted to NIMS Hospital, Hyderabad. The Commissioner,
Panchayat Raj issued proceedings dated 13.09.2002 sanctioning
Disablement leave from 01.01.2003 to 12.03.2003 which is Ex.P1.
The defacto complainant/P.W.1 was supposed to receive salary from
01.01.2003 to 12.03.2003. On 01.04.2003, P.W.1 submitted an
application in the office of District Panchayat Office, Khammam for
sanctioning the salary for the said leave period. Thereafter, the DPO
endorsed it on the application and sent it to the concerned
Department for process. Another application dated 07.04.2003
which is Ex.P2 was also given to the appellant/accused officer for
preparing bill pertaining to P.W.1's salary. However, the appellant
demanded Rs.1,000/- as bribe for processing the salary bill of P.W.1.
On the request of P.W.1, the bribe amount was reduced to Rs.800/-
and threatened that unless the said amount is paid, he would not
process the bill. On 15.04.2003, P.W.1 submitted another
application for grant of his leave salary.
3. Aggrieved by the demand of the appellant, P.W.1 approached
the DSP, ACB, Khammam and lodged Ex.P3 complaint on
25.04.2003. The Inspector, ACB instructed P.W.1 to come to his
office on 30.04.2003 around 8.00 or 8.30 a.m along with proposed
bribe amount.
4. On 30.04.2003, the trap was arranged by the DSP, ACB
(P.Uma Kanth Reddy was not examined as a witness since died).
After completing the pre-trap proceedings/Ex.P9, the trap party
including the complainant/P.W.1, P.W.2/independent witness, DSP
and others started in a jeep car and reached the office of the
appellant at about 10.30 a.m. Thereafter, P.W.1/complainant
entered into the appellant's office and wished him. On seeing P.W.1,
appellant allegedly demanded the bribe amount and P.W.1 gave the
bribe amount. After the bribe amount was taken, the appellant
counted it and kept in the right side pant pocket. Thereafter, P.W.1
asked about his application, for which, the appellant answered that
his file was sent to District Panchayat Office House. P.W.1 came out
from the appellant's office and gave pre-arranged signal.
5. DSP and other trap party members then entered into the office
of the appellant and enquired about the bribe amount. Sodium
carbonate test was conducted on the both hand fingers of the
appellant and both turned positive. The tainted amount was
recovered at the instance of the appellant from his right side pant
pocket. The inner flap of right side trouser pocket of the appellant
was also subjected to phenolphthalein test, which yielded positive
result. Ex.P11/Post-trap proceedings were concluded. Having
obtained sanction to prosecute the appellant, charge sheet was filed
by L.W.12/E.Madhusudhan Reddy, Inspector of Police (not examined
since died).
6. During the course of trial, learned Special Judge examined
witnesses produced by the prosecution who are P.Ws.1 to 7 and
Exs.P1 to P18 were also marked. Further, MOs.1 to 8 were also
placed on record during trial. D.Ws.1 and 2 were examined by the
appellant in his defence. Learned Special Judge convicted the
appellant as stated supra.
7. Sri Badeti Venkata Rathnam, learned counsel for appellant
submitted that a false complaint was lodged by P.W.1. The DSP laid
trap hastily without verifying the antecedents of the appellant. When
P.W.1 was undergoing treatment at NIMS, the appellant had
processed the bill for Rs.1.00 lakh for medical treatment and sent
the demand draft to NIMS. The said aspect is corroborated in the
cross-examination of P.W.1. It is further the case of the appellant
that the sanction for disability leave was issued on 12.03.2003 and
the said proceedings were only received by the DPO office on
21.03.2003. Thereafter, the appellant contacted the DTO office and
submitted a note file to the in-charge DPO on 29.03.2003 for orders
to prepare the bill for payment, as such, there is no official favour
which was pending with the appellant as on the date of the appellant
and the file pertaining to P.W.1 (Ex.P10) was pending with P.W.4
(CEO). The prosecution failed to examine any attender at the DPO
office to verify when Ex.P10 was sent to the in-charge DPO's
residence. There is no accompanying witness along with P.W.1 to
show that the appellant demanded and accepted bribe amount from
P.W.1. At the earliest point of time, the appellant informed the DSP
that the alleged bribe amount was towards repayment of loan taken
by P.W.1 while P.W.1 was going to Hyderabad on official duty.
However, distorted version was mentioned in post-trap proceedings
that Rs.250/- was given.
8. Learned counsel appearing for the appellant further submits
that except the solitary evidence of P.W.1, there is no evidence with
regard to demand and acceptance by the appellant. He submits that
the learned Special Judge failed to verify whether the amount was
received from the Government for the disability leave sanctioned by
the Commissioner, Panchayat Raj Department. There is no official
favour pending with the appellant since the note file was recovered
from the residence of Incharge of the DPO for his approval.
9. In support of his contentions, learned counsel for the appellant
relied on the following judgments: i) Dudh Nath Pandey v. State of
U.P 1 ii) C.M.Girish Babu v. CBI, Cochin, High Court of Kerala 2; iii)
Punjabrao v. State of Maharashtra 3 and iv) SVS Kodanda Rao v.
State of A.P 4.
10. On the other hand, learned Special Public Prosecutor for ACB
would argue that the prosecution has proved the case against
appellant that he demanded and accepted bribe amount of Rs.800/-
from P.W.1. The learned Special Judge has considered both oral and
documentary evidence and arrived at the correct conclusion, as
such, the conviction recorded by the learned Special Judge needs no
interference.
11. PW.1 was working as attender in the very same office. It cannot
be said that he does not know the procedures involved or where his
file was lying in the office and with whom. PW.4 stated that Ex.P1-
file was received by the appellant on 24.03.2003 and disability leave
was already sanctioned, pending ratification by the Government. The
ratification letter was already addressed on 12.03.2003 by
AIR 1981 SC 911 SC
AIR 2009 SC 2022 SC
AIR 2002 SC 486 SC
2003 (1) ALD (Crl.) 933 (AP)
Commissioner and no reply was received from the Government
ratifying the leave sanctioned to PW.1 under Ex.P1. PW.4 also
admitted that the appellant had put up file of PW.1 before him for
sanction of interim payment of Rs.1 lakh to NIMS hospital towards
medical expenditure earlier. The amount was sanctioned and sent to
NIMS. It is further admitted that the appellant verified the note file-
Ex.P15 and also endorsed on 29.03.2003 that payment could be
made after furnishing pay bill.
12. The trap was on 30.04.2003. The file of PW.1-Ex.P1 was seized
from PW.4 from his house. It is on record that initially the amount of
Rs.1 lakh was processed for hospital bill of PW.1. The amount of
disability leave could not be given unless the Government ratifies the
disability leave and no sanction was received. The processing of file
on part of the appellant was complete. In the said circumstances, it
cannot be said that there was any work pending with the appellant
and it was to the knowledge of PW.1 who was attender in the very
same office.
13 PW.1 admitted that till the date of trap, the Government has
not issued any orders ratifying the sanction of special disability leave
issued by the Commissioner vide Ex.P1.
14. The allegation of demand in the said background of
recommendations made by the appellant in favour of PW.1, casts any
amount of doubt regarding the allegation of demand being correct.
There is no other evidence to prove demand apart from PW.1. Even
on the trap date it was PW.1 who alone entered into the office and
passed on the amount to the appellant. The DSP had not asked any
one of the independent mediators to accompany PW.1 to observe
what transpires in between PW.1 and the appellant on the date of
trap.
15. The appellant had spontaneously given explanation when
confronted during post trap proceedings that 15 days prior to the
trap date when PW.1 was going on official work, to Hyderabad, PW.1
asked amount as hand loan and amount was given by appellant. On
the date of trap, PW.1 met him and offered notes saying that he was
returning the hand loan as such without verifying the currency
notes, he had kept the amount in his pocket. PW.1 admitted that on
21.03.2003, he was sent to Hyderabad on official duty. The
spontaneous explanation given by the appellant cannot be
disbelieved only on the ground that the appellant did not verify the
notes and kept in his pocket. The appellant can discharge his burden
by preponderance of probability. The version of PW.1 going on leave
was admitted by PW.1. In the background of the demand by the
appellant being doubtful since there was no work pending with the
appellant and it was to the knowledge of PW.1 that the entire work
had been completed by the appellant and ratification by the
Government was awaited, in the said scenario there arises any
amount of doubt regarding the demand being correct. The
prosecution has failed to prove that there was a demand by the
appellant, when all the circumstances are viewed together in the
case including the explanation given at the earliest point of time.
16. The Honourable Supreme Court in Punjabrao's case (supra 3)
held that the accused can prove his defence by preponderance of
probability and when the version given during examination under
Section 313 of Cr.P.C. is probable, the same can be relied on to give
benefit to the accused.
17. The Honourable Supreme Court in C.M.Girish Babu's case
(supra 2) held that it is for the prosecution to prove the demand
beyond reasonable doubt. Recovery cannot form basis to infer
demand.
18. The accused examined DW1 who was Senior Assistant in the
said office. DW.1 stated that PW.1 was in the habit of taking hand
loans from the staff members and pay back after some time. On
20.03.2003 in his presence PW.1 took amount from him stating that
he was going to Hyderabad on official duty. The learned Special
Judge disbelieved the evidence of DW.1, finding that he was giving
the statement to help the appellant.
19. The Honourable Supreme Court in Dudh Nath Pandey's case
(supra1) held that the defence witnesses are entitled to equal
treatment with those of the prosecution and the Courts should
overcome their traditional instinctive disbeliefs in defence witnesses.
If the defence witness speak lies so do the prosecution witnesses.
The evidence of DW1 corroborates with the earliest explanation given
by the appellant on the date of trap.
20. The appellant had disproved the case of prosecution about the
demand and acceptance of bribe as discussed above and the version
given by the appellant is probable.
21. Criminal Appeal is allowed setting aside the conviction
recorded by the Prl.Spl.Judge for SPE & ACB Cases, Hyderabad, in
CC.No.48 of 2004, dt.23.01.2009, and the appellant is acquitted.
__________________
K.SURENDER, J
Date: 04.10.2024
kvs/tk
