Telangana High Court
State, Rep. Inspector Of Police, Acb, ... vs Smt. Adoni Hema, Somajiguda, ... on 23 October, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.324 OF 2012
JUDGMENT:
1. The State, aggrieved by the acquittal of the
respondent/accused officer for the offences under Sections 7 and
Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act vide
judgment in C.C.No.50 of 2006 dated 09.12.2011 passed by the
Principal Special Judge for SPE & ACB Cases, Hyderabad, filed the
present appeal.
2. The accused was working as an auditor, Unit-I, D-12 Section
in the office of Pay & Accounts Officer, Hyderabad. She demanded
an amount of Rs.800/-(one hundred by each of eight attenders)
from the defacto complainant/P.W.1 and seven other attenders in
the office for clearing their bills of revised pay scales. The said
applications were made on 07.12.2005 and P.W.1 met the accused
on 12.12.2005. The next day i.e., on 13.12.2005, P.W.1 requested
the accused to reduce the bribe amount and accordingly accused
reduced the bribe amount to Rs.500/- and P.W.1 was asked to pay
the said amount on 14.12.2005 in the office.
3. On 13.12.2005, P.W.1 lodged complaint with the DSP,
ACB/P.W.9. The said complaint Ex.P1 was registered as FIR and
trap was arranged on 14.12.2005. The trap party gathered in the
office of the DSP and concluded the formalities before proceeding to
lay the trap. Ex.P2 is the pre-trap proceedings.
4. The trap party went to the office of the accused. PWs.1 and 2
went into the office around 3.00 p.m. P.W.1 came out at 3.10 p.m
and relayed signal indicating demand and acceptance of bribe by
accused. The DSP/P.W.9 and the other trap party members entered
into the office. Test was conducted on both the hands of the
accused to ascertain whether she handled the phenolphthalein
smeared bribe amount. The sodium carbonate solution test on the
left hand proved positive and right hand remained negative. The
said amount was recovered on the writing pad which was
underneath the files. The DSP recorded the statements of the
accused, complainant and also seized the relevant file. What all
transpired during post-trap proceedings was drafted, which is
Ex.P8. The investigation was then handed over to P.W.10, who
concluded investigation and filed charge sheet against the accused.
5. Learned Special Judge examined P.Ws.1 to 10, marked Exs.P1
to P12 and also MOs.1 to 10 were marked on behalf of the
prosecution. D.W.1 was examined in defence and during the course
of trial, Exs.D1 to D3 which are portions of previous statements of
P.Ws1 and 5 were marked.
6. Learned Special Judge acquitted the accused on the following
grounds.
i) The accused was on leave from 4.12.2005 to 11.12.2005.
Having resumed duties on 12.12.2005, she started attending to the
files of P.W.1 and others.
ii) The accused as an auditor can only process the bills and
cannot pass the bills. It is the Assistant Pay & Accounts Officer,
who has the authority to pass bills.
iii) P.W.5, who is another attender, though stated in chief
examination that he and other attenders met the accused, who
demanded bribe of Rs.800/- i.e., Rs.100/- from each attender,
however, the said allegation was proved to be false as admitted by
P.W.5 during cross-examination.
iv) The only testimony of alleged demand is that of P.W.1 prior
to the date of trap.
v) On the date of trap, when P.Ws.1 and 2 went and met the
accused, demand was made. However, in Section 164 Cr.P.C
statement of P.W.1, P.W.1 stated that when he went and met the
accused and asked about the bills, she replied that bills were
passed. Admittedly, on 13.12.2005 itself bills were processed by the
accused and sent for passing of bills.
vi) The evidence of P.W.2 that he was present when the
demand was made on the trap date cannot be believed since
DSP/P.W.9 did not give any instructions to P.W.2 to accompany
P.W.1.
vii) It is a fact that the bills were kept pending for the reason of
non availability of service registers of attenders, though bills were
processed and forwarded to P.W.4 by accused, her immediate
superior.
viii) Alleged demand as stated by P.W.1 is not reliable and
PW.1 is not trustworthy witness.
ix) Though M.Rajeswari, M.Umadevi and Smt. Kalavati co-
employees of accused were examined during post-trap proceedings,
they were not made as witnesses in the charge sheet. The said non
examination during trial of the said witnesses though examined
during post trap proceedings, an adverse inference has to be drawn
against prosecution.
x) D.W.1/attender, who was examined during post-trap
proceedings, was examined in defence. He stated that on
14.12.2005, P.W.1 came inside the office and placed some amount
on the table and the accused refused the said amount and pushed
it towards accused. Apparently, for the said reason, test on the left
hand proved positive. The said version given by D.W.1 who was
examined during post trap proceedings is believable.
xi) The part of the file underneath which the amount was kept
was neither tested for phenolphthalein powder nor seized during
post-trap proceedings by P.W.9. It is fatal to the prosecution case as
recovery of money underneath the file becomes doubtful.
7. Learned Special Public Prosecutor argued that since the
amount was found underneath the files on the writing pad on the
table of the accused, further, the left hand test proving positive, the
only conclusion that can be drawn is that the amount was
demanded and accepted by accused. Further, the bills were also not
processed by the accused. In the said circumstances, the
prosecution version that the demand was made by the accused for
processing the bills is convincing. Both P.Ws.1 and 2 were
witnesses to the demand and acceptance of bribe on the trap date,
as such, the finding of acquittal has to be reversed and accused has
to be convicted.
8. On the other hand, learned counsel appearing on behalf of the
accused has argued that the findings of the learned Special Judge
are based on testimony of witnesses and circumstances relied on by
the prosecution. Further, the documents falsify the demand of
bribe. Learned counsel further argued that there are no reasons to
reverse the order of acquittal.
9. In Mallappa and others v. State of Karnataka 1 the Honourable
Supreme Court summarised the principles whereby appeals against
acquittals can be interfered with. At para-42 of the Judgment, it was held
as follows;
(2024) 3 Supreme Court Cases 544
"42. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could be
summarised as:
(i) Appreciation of evidence is the core element of a criminal trial
and such appreciation must be comprehensive -- inclusive of all
evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the court, after appreciation of evidence, finds that two views
are possible, the one in favour of the accused shall ordinarily be
followed;
(iv) If the view of the trial court is a legally plausible view, mere
possibility of a contrary view shall not justify the reversal of
acquittal;
(v) If the appellate court is inclined to reverse the acquittal in
appeal on a reappreciation of evidence, it must specifically address
all the reasons given by the trial court for acquittal and must cover
all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate
court must demonstrate an illegality, perversity or error of law or
fact in the decision of the trial court."
10. The Hon'ble Supreme Court in the case of N. Vijayakumar v.
State of T.N.2 held as hereunder:--
(2021) 3 SCC 687
"20. Mainly it is contended by Shri Nagamuthu, learned Senior
Counsel appearing for the appellant that the view taken by the trial
court is a "possible view", having regard to the evidence on record. It
is submitted that the trial court has recorded cogent and valid
reasons in support of its findings for acquittal. Under Section
378 CrPC, no differentiation is made between an appeal against
acquittal and the appeal against conviction. By considering the long
line of earlier cases this Court in the judgment in Chandrappa v.
State of Karnataka, [(2007) 4 SCC 415] has laid down the general
principles regarding the powers of the appellate Court while dealing
with an appeal against an order of acquittal. Para 42 of the judgment
which is relevant reads as under: (SCC p. 432) "42. From the above
decisions, in our considered view, the following general principles
regarding powers of the appellate court while dealing with an appeal
against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling
reasons", "good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court."
11. Learned Special Judge has discussed regarding there being no
possibility of P.W.2 being present on the date of trap since he was
not asked by P.W.9/DSP to accompany P.W.1. If the DSP had not
asked P.W.2 to accompany P.W.1 during post trap proceedings, it is
highly doubtful that P.W.2 had accompanied P.W.1.
12. The only version of demand by the accused is that of P.W.1.
Admittedly, the accused was on leave from 04.12.2012 to
11.12.2012 and immediately after joining duty, she had completed
her part of processing the bills and it was kept pending for service
registers. P.W.4, who is the immediate superior, corroborated the
version of the accused. The other employees, who were present
during the post-trap proceedings and examined during post-trap
proceedings were not cited as witnesses in the charge sheet. D.W.1
attender and colleague of P.W.1 was also examined during post-trap
proceedings. However, he was not cited in the list of witnesses by
the prosecution. D.W.1 stated that when P.W.1 came into office and
kept the amount on the table, accused pushed back the amount
with her left hand. The colour on the hands of the accused is
explained. Further, as rightly discussed, the file which came into
contact with the tainted currency was not seized and reason is not
explained by the DSP.
13. The reasons given by the learned Special Judge while
acquitting the accused are logical, reasonable and based on record.
Unless there are compelling circumstances and reasons such as
findings of the trial Court not being based on record or irrelevant
considerations or improper conclusions, only under such
circumstances, the appellate Court can interfere and reverse the
order of acquittal as observed by the Hon'ble Supreme Court in the
above judgments.
14. Learned Special Public Prosecutor except stating that test on
the left hand of the accused proved positive and P.W.2, an
independent mediator was also present, but whose presence was
rightly disbelieved by the Court below, no other grounds were
raised. The said grounds raised by the Special Public Prosecutor
cannot be sustained to reverse the well reasoned judgment of
acquittal by the trial Court.
15. Accordingly, Criminal Appeal is dismissed.
__________________
K.SURENDER, J
Date: 23.10.2024
kvs
