Telangana High Court
Mohd Abdul Khalique, vs The State Of A.P., Rep By Spl Pp., on 21 September, 2024
1
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 434 OF 2010
Between:
Mohd.Abdul Khalique
... Appellant
And
The State ACB,
Warangal Range, Warangal,
Rep.by its Special Public Prosecutor
for ACB Cases,
High Court of A.P., Hyderabad.
... Respondent
DATE OF JUDGMENT PRONOUNCED: 21.09.2024
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
+ CRL.A. No. 434 OF 2010
% Dated 21.09.2024
# Mohd.Abdul Khalique
... Appellant
And
$ The State, ACB,
Warangal Range, Warangal,
Rep.by its Special Public Prosecutor
for ACB Cases,
High Court of A.P., Hyderabad.
... Respondent
! Counsel for the Appellant: Sri Badeti Venkata Ratnam
^ Counsel for the Respondents: Sri Sridhar Chikyala
Spl.Public Prosecutor for ACB
>HEAD NOTE:
? Cases referred
1. 2021 CRI.L.J1353
2. AIR 2004 SC 1728
3. 1992 CRI.L.J 608
4. 2005 CRI.L.J 3454
5. 2001 AIR SCW 2415
6. 1988 CRI.L.J 1122
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.434 OF 2010
JUDGMENT:
1. The appellant was convicted for the offences under Sections 7
and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,
1988 (for short "the Act of 1988") and sentenced to undergo rigorous
imprisonment for a period of one year under both counts. Aggrieved
by the said conviction, present appeal is preferred.
2. Briefly, the case of the prosecution is that the defacto
complainant/P.W.1 was running a sawmill and timber depot namely
Vinayaka Sawmill and Timber Depot. His licence expired on
31.12.2002 as such, he submitted application (Ex.P2) along with
challan (Ex.P3) for renewal on 01.01.2003 addressed to the
Divisional Forest Officer (DFO). His licence was not renewed till
10.03.2003, as such, he met the appellant, who was working as
Forest Range Officer (FRO). The appellant allegedly demanded
Rs.10,000/- for processing the file and also informed that Sub-
Divisional Forest Officer (SDFO)-P.W.4 had made remarks in the
application. On 23.03.2003, P.W.1 again met the appellant for
forwarding the renewal application for licence. However, the amount
was again demanded. Four days thereafter i.e., on 27.03.2003 when
P.W.1 met appellant, P.W.1 was asked to pay an amount of
Rs.5,000/- initially and thereafter Rs.5,000/- after renewal.
3. Vexed by the continuous demand of bribe, P.W.1 lodged Ex.P4
complaint with the DSP namely P.Umakanth Reddy (died prior to
trial). The trap was arranged on 29.03.2003. The trap party
including P.W.1, independent mediators, DSP, Inspector and others
gathered in the office of DSP around 3.00 p.m. All the formalities
that were required to be completed before proceeding to trial were
completed. The said proceedings were drafted as Ex.P9 first
mediators report.
4. The trap party reached the house of the appellant around 4.30
p.m and P.W.1 and another independent mediator-Ahmed Khan (not
examined) went to the house of the appellant. The appellant and his
staff were present. Both P.W.1 Ahmed Khan sat in the front room
whereas the appellant and others were sitting in the other room. The
appellant asked P.W.1 to get cool drinks for the staff members, as
such, P.W.1 went outside and brought the cool drinks. The mediator
went out of the house and informed the trap party regarding the
other officials being present with the appellant. By the time, P.W.1
came back, Ahmed Khan was not present in the room. P.W.1
supplied cool drinks to the staff and then the staff members left the
appellant's house. The appellant enquired whether P.W.1 brought
the amount and when P.W.1 gave the said amount, Appellant
received it and kept underneath the pillow in between the folds of
shawl.
5. P.W.1 then went outside and signaled to the trap party
regarding the demand and acceptance of bribe by the appellant. The
trap party entered into the house. Sodium Carbonate solution test
was conducted on both the hands of the appellant to confirm
whether the appellant handled the phenolphthalein smeared bribe
amount. Both the solutions turned positive. When asked by the DSP,
the appellant handed over the amount from the folds of the shawl
which was underneath the pillow. Thereafter, the DSP enquired
about the file of P.W.1. P.W.2, who was working as Senior Assistant
and present in the house of appellant went and brought the files -
Exs.P6 and P7 pertaining to P.W.1. During the post-trap
proceedings, explanation was given by the appellant that when P.W.1
offered the amount, the appellant refused, however, P.W.1 tried to
thrust the amount into his hands but appellant refused. He was not
aware about the amount found in the folds of the shawl underneath
the pillow. Further, according to P.W.3 and the Inspector, it was the
appellant who informed about the amount, which was in between
the folds of shawl underneath the pillow.
6. The version given by P.W.1-complainant and what all
transpired during the post trap proceedings was reduced into writing
which is Ex.P11.
7. DSP handed over investigation to P.W.6, who was present from
the beginning ie., from the lodging of the complaint by P.W.1 and
also during pre and post trap proceedings. Investigation was
completed by PW.6 and charge sheet was filed after obtaining
sanction orders from the competent authority.
8. The learned Special Judge framed charges for the said offences
and examined P.Ws.1 to 6 and marked Exs.P1 to P13 on behalf of
the prosecution. During the course of examination of mediator-
P.W.3, MOs.1 to 8 were also marked.
9. The defence of the appellant is that firstly no work was pending
with him and he was not in a position to do any official favour on the
date of lodging complaint or on the date of trap. In fact, the bribe
amount was thrust into his hands by P.W.1 and refused by the
appellant. He informed that he is not aware as to how the amount
was kept in the shawl which underneath the pillow. However, during
the course of trial, the appellant explained that initially when P.W.1
came and offered the amount, he refused and P.W.1 was sent to get
cool drinks. He went out and when he came back, he must have
planted the amount underneath the pillow, when Accused Officer
came out of the house to see off the officials.
10. The learned Special Judge, however, did not find favour with
the defence taken by the appellant and convicted him accordingly for
demanding and accepting bribe from P.W.1.
11. Learned counsel appearing on behalf of the appellant had
mainly concentrated on the fact that the file Ex.P6 and P7 pertaining
to the P.W.1 was admittedly with P.W.2. Even prior to the date of
complaint, in fact, the file was processed and the work of the
appellant was completed. The files were pending with P.W.2. The
question of demanding bribe when the file of P.W.1 was already
processed regarding the licence, cannot be believed.
12. Learned counsel further argued that even on the date of trap,
the initial version given by the appellant given was that the amount
was thrust into his pocket and the work was not pending with him
and same was recorded in the second mediators' report. From the
circumstances, it is apparent that the money was planted by P.W.1
and for the said reason, the other mediator who was asked to
accompany P.W.1 left the premises and he was not examined during
trial. Since there was no work pending, the version of demanding
amount as projected by the prosecution cannot be believed.
13. Learned counsel relied on the judgment of Hon'ble Supreme
Court in the case of N.Vijayakumar v. State of Tamil Nadu 1 ,
wherein the Hon'ble Supreme Court held that mere recovery of
amount from the accused cannot form basis to convict unless
prosecution proves the factum of demand beyond reasonable doubt.
14. In State of A.P. v. T.Venkateswara Rao 2, similar view was
taken by the Hon'ble Supreme Court that mere recovery of the
amount is of no consequence when the work was not pending with
the accused officer therein.
2021 CRI.L.J1353
AIR 2004 SC 1728
15. In Ayyasami v. State of T.N 3 , the Hon'ble Supreme Court
acquitted the accused therein on the ground that there was no
independent evidence of demand to corroborate the evidence of the
complainant.
16. In Ganga Kumar Srivastava v. State of Bihar 4, the Hon'ble
Supreme Court found favour with the defence that the amount was
planted in the shirt pocket which was hanging on the peg, on the
wall.
17. Learned counsel also relied on the judgment of Hon'ble
Supreme Court in the case of State of Tamil Nadu v. Krishnan
and another 5; and the judgment of Allahabad High Court in Har
Bharosey Lal v. State of U.P 6, similar views were taken regarding
the burden of proof of demand of bribe squarely resting on the
prosecution.
18. Learned Special Public Prosecutor argued that the fact remains
that the licence expired and application was made on 01.01.2003
itself. However, the files of P.W.1 under Exs.P6 and P7 were kept
1992 CRI.L.J 608
2005 CRI.L.J 3454
2001 AIR SCW 2415
1988 CRI.L.J 1122
pending till the date of trap, which was on 29.03.2003 that in itself
would go to show that the appellant was demanding the amount for
processing the file. There is no reason as to why the files for renewal
of licence were kept for such a long period unless there was an illegal
demand for bribe. On the date of trap, tests on the hands of the
appellant turned positive and at his instance, the amount was
recovered from underneath the pillow. The appellant and his staff
members were in one room and the amount that was accepted from
P.W.1, was recovered from the same room. Since the prosecution has
succeeded in proving the factum of demand and acceptance by the
appellant, the conviction has to be sustained.
19. The record reveals that the licence application under Exs.P6
and P7 were produced by P.W.2 on the date of demand at the
instance of DSP. According to P.W.2, the file was put up to the
appellant on 15.02.2003. Though, criminal case was pending against
P.W.1 at the relevant time, appellant under Ex.P7(a) recommended
for renewal of licence. P.W.4 who was the Sub Divisional Forest
Officer returned the file on 28.02.2003 raising objection about the
criminal case against P.W.1. According to P.W.2, the appellant had
referred in Ex.P7(b) about criminal case and raised objections.
However, under Ex.P7(a) recommended for renewal. As on the date of
the trap, the appellant had recommended for renewal of licence in
favour of P.W.1. However, keeping in view the criminal case pending
against P.W.1, his licence was not renewed. P.W.2 also admitted that
till date he has not put up any note in Exs.P6 and P7 before the
appellant. Regarding the events on date of trap, P.W.2 admitted that,
he and three others were present when P.W.1 came to the house of
the appellant. P.W.2, however, admitted while he was in the house of
the appellant, the DSP asked him to get Exs.P6 and P7 files.
20. P.W.4 was the Sub-Divisional Forest Officer. According to him,
the appellant under Ex.P7(a) informed about the case registered
against P.W.1 and that P.W.1 refused to accept the timber found in
the sawmill and that the timber was transported to Government
Timber Depot, Bhupalpally. Under Ex.P7(b), the appellant informed
P.W.4 that one Raghu accepted the offence and that he paid
Rs.10,600/- towards value of timber as compounding fee. P.W.4
asked the appellant to check the ground stock and repot back.
P.W.4 questioned as to how the appellant could recommend for
renewal of the licence since the offence was not finalized. The said
endorsement was made on 28.02.2003.
21. The complaint was filed on 27.03.2003. The application for
renewal of licence under Ex.P2 along with challan Ex.P3 was made
on 01.01.2003. Even according to P.W.2 and P.W.4, the application
of P.W.1 was recommended for renewal by the appellant on
27.02.2003 [Ex.P7(b)]and the files were switching back and forth in
between P.Ws.2, 4 and the appellant. However, P.W.4 had raised a
query regarding the offence not being finalized for which reason, the
licence was not issued. In the said circumstances, when the
application Ex.P2 was made to the DFO and thereafter,
recommended by the appellant, the question of any pending work
with the appellant does not arise. In the complaint, it is stated that
on 25.03.2003, when P.W.1 met the appellant, it was informed that
unless the bribe is paid, the appellant would not recommend for
renewal of licence, which is contrary to the evidence on record vide
Exs.P6 and P7, which reflects that recommendation was already
made nearly one month prior to the complaint.
22. The events that transpired on the trap date have also to be
assessed and looked into. On the instructions of the DSP, P.W.1 and
another independent mediator namely Ahmed Khan entered into the
house of P.W.1. However, the said Ahmed Khan left the house
violating the instructions of the DSP to stay along with P.W.1 and
observe what transpires in between P.W.1 and the appellant. The
purpose of asking the said Ahmed Khan, who is an independent
mediator was to lend credibility to the version of the prosecution case
regarding demand of bribe. No reasons are given by the prosecution
as to why Ahmed Khan left even before there was any demand or
acceptance made by the appellant. He was not even examined before
the Court below to explain the circumstances for disobeying the
DSP's instructions and what transpired on the trap date. It is not the
case that appellant had seen the said Ahmed Khan and questioned
about his presence.
23. At the very initial stage, when the appellant was questioned
during post-trap proceedings, he stated that he does not know about
the amount, which has found underneath the pillow and he
specifically stated that P.W.1 tried to thrust the bribe amount in his
hand and he refused. Further, appellant also stated that no work
was pending with him. On the basis of the prosecution evidence
under Exs.P6 and P7, it is clear that the appellant had already
recommended for renewal of licence and file was not pending with
him, but with P.W.2. There is no reason as to why the amount would
be kept in between the folds of shawl underneath the pillow and the
version of planting the said amount becomes credible for the reason
of the said Ahmed Khan leaving the premises and also not being
examined by the prosecution during trial. In the facts of the case,
when the appellant, P.W.2 and two other officers were in the house of
the appellant, P.W.1 had in fact served cool drinks to them. The
version that when the appellant had come out along with others,
there is possibility of planting by P.W.1, appears to be probable.
24. The burden on the prosecution is to prove the demand that was
made by the appellant beyond reasonable doubt. As already
discussed, for the reasons best known to prosecution, the said
Ahmed Khan left the premises on the date of trap. Work was not
pending with the appellant. The only evidence of demand is that of
P.W.1 without any corroboration. If the evidence of P.W.1 is
convincing and acceptable, the Court may not ask any other
corroboration. However, in the present circumstances, when there
was a criminal case registered against P.W.1 and the work by the
appellant was already complete, it gives rise to any amount of doubt
regarding the version of P.W.1 being correct, as such, the solitary
testimony of P.W.1 regarding the demand without any corroboration
cannot be accepted.
25. The explanation and reasons given at the earliest point of time
by the appellant are probablized by the evidence of the prosecution
witnesses themselves.
26 Accordingly, for the reasons discussed, the prosecution has
failed to prove the factum of demand and the version of the
prosecution that the recovery of amount was at the instance of
appellant, is highly doubtful. Accordingly, benefit of doubt is
extended to the appellant and appeal is liable to be allowed.
27. Criminal Appeal is allowed and the appellant is acquitted
setting aside the conviction recorded by the Principal Special Judge
for SPE & ACB Cases in C.C.No.45 of 2005, dated 10.03.2010. Since
the appellant is on bail, his bail bonds stands discharged.
__________________
K.SURENDER, J
Date: 21.09.2024
tk
