Telangana High Court
D.Krishnama Chary vs The State Of A.P., Through A.C.B., ... on 27 September, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.933 OF 2012
Between:
Md.Hameeduddin ... Appellant/A1
And
The State of A.P., through
Inspector of Police, Hyderabad range,
ACB, rep. by its Spl.Public prosecutor, High Court
Of A.P., Hyderabad. ... Respondent
Criminal Appeal No.901 OF 2012
Between:
D.Krishnamachary ... Appellant/A2
And
The State rep. by ACB, Warangal Range,
Warangal, rep. by Standing Counsel for
ACB cases, High Court of A.P., Hyd. ... Respondent
Criminal Appeal No.398 OF 2013
Between:
State rep. by Inspector of Police,
Anti-Corruption Bureau, Warangal Range,
Warangal ... Appellant/Complainant
And
1. Md.Hameeduddin
2. D.Krishnamachari ... Respondents/A1 & A2
DATE OF JUDGMENT PRONOUNCED: 27.09.2024
2
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
3
* THE HON'BLE SRI JUSTICE K. SURENDER
+ Criminal Appeal No.933 OF 2012
% Dated 27.09.2024
# Md.Hameeduddin ... Appellant/A1
And
$ The State of A.P., through
Inspector of Police, Hyderabad range,
ACB, rep. by its Spl.Public prosecutor, High Court
Of A.P., Hyderabad. ... Respondent
+ Criminal Appeal No.901 OF 2012
# D.Krishnamachary ... Appellant/A2
And
$ The State rep. by ACB, Warangal Range,
Warangal, rep. by Standing Counsel for
ACB cases, High Court of A.P., Hyd. ... Respondent
+ Criminal Appeal No.398 OF 2013
Between:
State rep. by Inspector of Police,
Anti-Corruption Bureau, Warangal Range,
Warangal ... Appellant/Complainant
And
1. Md.Hameeduddin
2. D.Krishnamachari ... Responden ts/A1 & A2
4
! Counsel for the appellant in
Crl.A.901/2012 : Sri Badeti Venkatarathnam
! Counsel for the appellant in
Crl.A.933/2012 : Sri M.B.Thimmareddy
! Counsel for the appellant in
Crl.A.398/2013 : Sri Sridhar Chikyala
Spl.Public Prosecutor for ACB
^ Counsel for the Respondents
In Crl.A.Nos.901&933 of 2012: Sri Sridhar Chikyala
Spl.Public Prosecutor for ACB
^ Counsel for the Respondents
In Crl.A.No.398 of 2013: Sri Badeti Venkatarathnam for R1
Sri M.B.Thimmareddy for R2
>HEAD NOTE:
? Cases referred
1. AIR 2002 Supreme Court 486
2. 1995 CRI.L.J.3978
3. (2022) 4 Supreme Court Cases 574
4. (2014(2)ALD (Crl.) 73 (SC)
5
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.933, 901 OF 2012 and 398 of 2013
COMMON JUDGMENT:
Criminal Appeal No.933 of 2012 is filed by A1 and Criminal
Appeal No.901 of 2012 is filed by A2 aggrieved by the conviction
recorded by the learned Prl.Special Judge for SPE & ACB Cases at
Hyderabad in C.C.No.28 of 2010 for the offence under Section 7 of
the Prevention of Corruption Act, 1988.
2. Criminal Appeal No.398 of 2013 is filed by the State ACB
aggrieved by the acquittal recorded in C.C.No.28 of 2010 against
A1 and A2 for the offence under Section 13(2) r/w.13(i) of the
Prevention of Corruption Act, 1988.
3. Briefly, the case of the prosecution is that the appellants 1
and 2 in Crl.A.Nos.933and 901 of 2012 worked as Executive
Director and Field Assistant-cum-Typist, respectively, in the office
of A.P.State Minorities Finance Corporation Limited, Warangal
District.
4. A.P.State Minorities Corporation Limited, introduced a
scheme 'Dukhan-Makhan' for providing financial assistance to the
minorities who have land or plot in urban or rural areas. Under
the said scheme working capital will be provided to the
beneficiaries by providing direct loan of Rs.55,000/- from NMDC
for constructing a house and also for running some business.
Beneficiaries would be identified and the identified beneficiary
should contribute Rs.5,000/- in advance by opening a bank
account. At first instance Rs.35,000/- will be paid by A.P.Housing
Corporation through cheques for construction of the house and
subsequently an amount of Rs.15,000/- would be released as
working capital for doing business by the beneficiary.
5. The complainant (PW.1) applied for the benefit under the
said scheme and was sanctioned loan of Rs.50,000/- vide
proceedings dated 08.10.2003. As per the scheme, PW.1 opened
bank account. After completion of procedure, PW.1 received
Rs.34,900/- in three instalments and completed the construction
of house and obtained certificate from PW.7 and submitted the
same on 14.07.2004 to A1.
6. On 02.08.2004, PW.1 requested A1 for issuance of cheque
for balance loan amount of Rs.15,000/-, for establishing shop. For
which, the A1 demanded Rs.3,000/- as bribe. PW.1 expressed his
inability to give the demanded amount. PW.1 again met the A1 on
16.08.2004 and A1 reiterated the earlier demand. PW.1 again
expressed his inability. Then, A1 called A2 and instructed him to
go to complainant's village and inspect the house and submit
report. Accordingly, A2 inspected house on 17.08.2004 and took
photograph of the newly constructed house of PW.1. Then PW.1
requested A2 to recommend his case to A1 for issuing the cheque
for balance amount. Then A2 informed that if Rs.2,000/- was
given to A1 then he would recommend for issuing the cheque.
7. PW.1 finally met A1 on 23.08.2004 and requested for
issuance of cheque for Rs.15,000/-. A1 enquired as to whether
PW.1 brought demanded amount of Rs.2,000/-. PW.1 again
expressed his inability. A1 asked PW.1 to pay Rs.1500/- , initially,
and the remaining amount later.
8. As PW.1 was not willing to pay the bribe amount, he
approached DSP ACB, Warangal (PW.11) on 25.08.2004 at 11:30
hours and lodged a written complaint Ex.P1. DSP instructed
Inspector to verify the complaint. PW.11 registered Crime
no.6/ACB-WRL/2004 on the date of trap i.e. 27.08.2004.
9. On 27.08.2004, PW.11 secured the mediator-PW.3 and
others. After conducting pre-trap proceedings-Ex.P6, the trap
party went to the office of accused at 11.30 a.m. By the time they
reached the office, A1 was not present in the office. On the
instructions of DSP ACB, PW.1 waited till the arrival of A1. At
about 2.00 P.M. A1 came to the office. A2 instructed PW.1 to get
food packet for A1. Accordingly, PW.1 after informing the same to
DSP went to hotel and brought food packet to A1 and asked A1
about his balance cheque amount of Rs.15,000/-. A1 reiterated
his earlier demand. When PW.1 offered to pay the bribe amount,
A1 directed PW.1 to pay the same to A2 and instructed A2 to
receive it. A2 received the amount with his right hand and kept in
the drawer of his table.
10. PW.1 went out of the office and gave pre-arranged signal to
the trap party. The ACB DSP along with his trap party entered the
room of A1 and found A1 and A2 in the room. DSP conducted
Sodium Carbonate Solution tests on both the hands of A1 and A2.
Only the right hand fingers of A2 yielded positive result. On
questioning, A2 pointed out the tainted amount of Rs.1500/-
which was kept in his table drawer and the same was seized.
11. The official documents pertaining to PW.1 and other
beneficiaries were also seized from the office of A1. Post-trap
proceedings were conducted and drafted, which is Ex.P11. Further
investigation was completed by Inspector. After obtaining sanction
orders, charge sheet was filed against the accused A1 and A2
under Sections 7, 13(2) r/w.13(1)(d) of the Prevention of
Corruption Act before the Special Court. The learned Special
Judge took cognizance of charge sheet and framed charges for the
said offences.
12. In order to prove its case, the prosecution examined PWs.1
to 12 and got marked Exs.P1 to P23. PW.1 is the complainant who
partially suggested the case of prosecution and was declared
hostile. PW.2 scribe of Ex.P1 complaint turned hostile. PW.3 is
the mediator. PW.4, computer operator turned hostile. PW.5,
another beneficiary turned hostile. PW.6 is the Ex.Director in
Minority Corporation. PW.7-Dy.EE (Housing), Mahabubabad
speaks about inspection of beneficiaries constructions. PW.8-
General Manager, APSMFC speaks about the procedure and
release of amount. PW.11 is DSP, ACB, Warangal who laid the
trap and PW.12 is the Investigating Officer.
13. On behalf of defence, Exs.D1 and D2 which are portions of
Ex.P1-complaint, were marked. M.Os.1 to 12 were also brought on
record by the prosecution.
14. Learned Special Judge found that the evidence of the
mediator-PW.3, PW.11-trap laying officer and also the evidence of
PW.1 who had partially turned hostile, made out the case of
demand and acceptance by the appellants A1 and A2 and
accordingly convicted them.
15. Learned Counsel appearing for A1 would submit that PW.1
has partially supported the prosecution case and to the extent of
A2's role turned hostile to the prosecution case. The demand of
bribe according to PW.1 by A1 was on 02.08.2004, however,
according to Ex.P9 which is the attendance register, A1 was on
leave on that day. The trial Judge had erroneously concluded that
though A1 was on leave, since it was not proved that he was not in
town, the allegation of demand on the said date could be believed.
16. The counsel further argued that even according to PW.1,
during the course of trial that there was no voluntary acceptance
by either A1 or A2. PW.1 stated that he kept the money in the
table drawer. The test of Sodium Carbonate solution on the hands
of A1 proved negative. However, it was positive for A2. PW.1 stated
that he shook hands with A2 while going out of the room of A1
after giving bribe to A1, as such, test being positive on A2 was
explained. Finally, the counsel submits that there was no official
favour which was pending with A1. He was the only
recommending authority and even prior to the date of trap, the
entire list of beneficiaries was prepared. In the said
circumstances, when the prosecution has failed to prove that
there was any official work and the factum of demand was also
not proved, conviction has to be set aside.
17. Learned Counsel appearing for A2 would submit that PW.1
has not stated anything against A2. He denied that A2 demanded
any amount and in fact the reason for the positive test on the
hand of A2 was explained by PW.1 himself. Since the prosecution
failed to prove the factum of demand, the question of conviction
on the basis of alleged recovery on the trap date as deposed by the
trap laying officer cannot form basis to convict A2. Counsel
further submitted that in appeal against acquittal filed by the
State, appeal was not filed against A2, but A1 only.
18. Counsel relied on the Judgment of the Honourable Supreme
Court in Jagtar Singh v. State of Punjab in Criminal Appeal
No.2136 of 2010, dt.23.03.2023, wherein Honourable Supreme
Court held in the facts of the case that when the complainant and
the accompanying witnesses turned hostile to the prosecution
case, mere recovery of the amount from the appellant cannot form
basis to convict.
19. In Soundarajan v. State of Tamil Nadu, the Honourable
Supreme Court while allowing appeal No.1592 of 2022 in a trap
case held that demand when not proved, the subsequent recovery
is of no consequence.
20. In Punjabrao v. State of Maharashtra 1 the Honourable
Supreme Court held that the explanation given by the accused
need not be proved beyond reasonable doubt and evidence can be
established by preponderance of probability. Even during 313
Cr.P.C. examination, if the defence taken by the accused is
acceptable, the same can be relied on by the Courts.
21. In M.K.Harshan v. State of Kerala 2 the Honourable
Supreme Court while dealing with a case of recovery from the
table drawer, extended benefit of doubt on the facts of the case
finding that the version of prosecution witnesses was
contradictory.
22. In K.Shantamma v. State of Telangana 3 and in
B.Jayaraj v. State of Andhra Pradesh 4, the Honourable
Supreme Court held that mere recovery of bribe amount divorced
from circumstances cannot constitute an offence under Section 7
of the Prevention of Corruption Act. Further, presumption cannot
be raised in the absence of proof of acceptance of bribe amount.
AIR 2002 Supreme Court 486
1995 CRI.L.J.3978
(2022) 4 Supreme Court Cases 574
(2014(2)ALD (Crl.) 73 (SC)
23. On the other hand, learned Assistant Public Prosecutor
would submit that though PW.1 was treated hostile, he has
specifically stated that the amount was demanded by A1 on the
date of trap. The said version of demand by A1 and A2 is reflected
in Ex.P1-complaint. The money was recovered from the drawer of
A2. In the said circumstances, the Court below has rightly invoked
the provision under Section 20 of the Prevention of Corruption Act
and shifted the burden on to the accused to explain. Since the
accused failed to disprove the case of prosecution, conviction was
recorded.
24. It is law that the burden of the prosecution initially to prove
the aspect of demand is beyond reasonable doubt. The
prosecution cannot rely on the subsequent recovery of bribe
amount unless the foundation of the demand is laid with
convincing and reliable evidence. The only witness for the alleged
demand by A1 and A2 is PW.1, who has resiled from his earlier
evidence of demand by A1 and A2 and confined the factum of
demand to only to A1. PW.1 stated that A2 did not demand,
during the course of trial. Further PW.1 stated that on the trap
date he met A1 who asked for the bribe amount and when offered
he asked PW.1 to keep it in table drawer. Admittedly, the amount
was seized from the table drawer of A2 and not A1's table drawer.
25. No reasons are given as to why the DSP did not choose to
send any one of the independent mediators either PW.3 or the
other person to accompany PW.1 and observe as to what
transpires in between PW.1 and the accused.
26. The very genesis of the complaint is that A1 demanded an
amount of Rs.3,000/- and after inspection of the premises, A2
also demanded the amount and asked the amount to be paid.
However, on the date of trap, according to PW.3 and PW.1/DSP,
both A1 and A2 were in the same room when PW.1 entered and A1
demanded the amount. When offered by PW.1, A1 asked A2 to
take the amount who accepted the amount with his right hand
and placed the amount in his drawer. However, PW.1 in his
statement before the Court stated that he kept the amount in the
table drawer after A1's demand without specifying whose table it
is. After PW.1 went outside, he saw A2 outside and he shook
hands with A2. The events that transpired on the trap date as
narrated by PW.1 are self contradictory and a different version is
given. Till the relay of signal, none of the trap party members
could see what transpired either outside the room of the accused
or inside. The version given by PW.1 in the Court has a overall
impact on the case of the prosecution regarding demand, since the
version given at the earliest point of time regarding involvement of
A1 and A2 is not stated. The Court cannot be selective in deciding
a case on facts such as the present case. As already discussed,
PW.1 has turned hostile, as such, the version of demand cannot
be believed unless there is corroboration from any other source.
Normally, corroboration is not required in cases where the
evidence is convincing and reliable. However, PW.1 is a self
condemned witness and the only witness for the alleged demand.
Once his statement regarding demand is eschewed due to
inconsistent and contradicting statement being made, there is no
other corroborating evidence.
27. Once the demand aspect is not proved by the prosecution
beyond reasonable doubt, the question of placing reliance on the
recovery of bribe amount from the table drawer of A2 cannot form
basis to convict either A1 or A2. According to PW.1 the alleged
demand on the date of trap was made by A1. However, according
to PW.3 and PW.11-DSP, the amount was found in the table
drawer of A2. The version of demand cannot be further accepted
for the reason of A1 being on leave on 02.08.2004 when allegedly
A1 demanded the bribe for the first time. It is not the case of PW.1
that A1 was on leave on that date and he met A1 in his house or
some other place. The case when viewed in its entirety, the
prosecution has failed to prove that there was demand by the
accused officers A1 and A2 either prior to or on the date of trap.
Accordingly, benefit of doubt is extended to A1 and A2.
28. Criminal Appeal Nos.933 and 901 of 2012 filed by A1 and
A2, respectively, are allowed and the conviction under Section 7 of
the Prevention of Corruption Act, 1988, recorded by the learned
Prl.Special Judge for SPE & ACB Cases at Hyderabad in
C.C.No.28 of 2010, is hereby set aside. Since A1 and A2 are on
bail, their bail bonds shall stand discharged.
29. Criminal Appeal No.398 of 2013 filed by the State ACB is
dismissed.
___________________
K.SURENDER, J
Date: 27.09.2024
tk
