M.W.R.Jayakar A1 vs State Of A.P., Rep. By Inspector Of ...
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Telangana High Court

M.W.R.Jayakar A1 vs State Of A.P., Rep. By Inspector Of ... on 16 April, 2025

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                HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL Nos.41 and 507 OF 2012


JUDGMENT:

Crl.A.No.507 of 2012 is filed by the ACB, questioning the order

passed by the II Additional Special Judge for SPE & ACB Cases,

Hydeabad, in CC.No.08 of 2010, dated 31.12.2011, in acquitting

Accused No.1 for the offences under Sections 468, r/w.34 of IPC, 471

r/w.34 of IPC, and 120(B) r/w.34 of IPC, and acquitting Accused No.2

of all the offences under Sections 7, 13(1)(d) r/w.13(2) of the

Prevention of Corruption Act, 1988, r/w. Sections 109, 120-B, 201,

468, 471, and 34 of the Indian Penal Code.

2. Crl.A.No.41 of 2012 is filed by Accused No.1, questioning the

conviction recorded by the II Additional Special Judge for SPE & ACB

Cases, Hydeabad, in CC.No.08 of 2010, dated 31.12.2011, for the

offences under Sections 7 and 13(1)(d) of the Prevention of Corruption

Act.

3. Since Accused No.2 died, this Court, in Crl.A.No.507 of 2012 by

order dated 02.08.2022, dismissed the appeal against A2 as abated.

4. This Court has heard the appeals filed by A1/appellant in

Crl.A.No.41 of 2012 and by the State against A1 in Crl.A.No.507 of

2012.

5. The case of the prosecution is that PW.1 is a practicing advocate.

One Buchirami Reddy (plaintiff) and 4 others filed suit OS.No.518 of

1994 in the Court of the Prl. District Munsif (Prl. Junior Civil Judge),

Karimnagar, in which PW.1 is the defendant. The suit was filed for

perpetual injunction in respect of properties in Survey No.227/D2,

admeasuring 1.09 guntas at Husnabad Village of Karimnagar District.

The said plaintiff filed IA.No.519 of 1997 for appointment of a

Commissioner to measure the land in the said survey number and fix

boundaries. A2 (died) was the Presiding Officer of the said Prl. Junior

Civil Judge's Court. A2 appointed A1/appellant in Crl.A.No.41 of 2012,

who was a practicing advocate, as Commissioner to inspect the suit

schedule property with the assistance of a qualified surveyor and to

demarcate the suit schedule land. The said IA was posted to

11.06.1997 for the report of the Advocate Commissioner (A.1). On

01.02.1998, A1, with the help of the Deputy Director, Survey and Land

Records, Hyderabad, executed the warrant of commission, but the

report was not filed.

6. On 19.02.1998, A1 went to the house of PW.1 and demanded a

bribe of Rs.50,000/- for filing the report in his favour and insisted that

Rs.20,000/- be paid before filing the report. On the next date, PW.1

approached the ACB authorities and filed a complaint.

7. The complaint was received by PW.11-DSP, and a crime was

registered at 11.30 A.M., and a trap was also arranged at 6.30 p.m. on

the same day. According to PW.11, he orally obtained No objection

from the Sessions Judge to lay a trap against A1. PW.2-Sampath

Reddy, mediator, and another, namely Komarayya, were asked to

assist during the trap proceedings as independent mediators. All the

trap party members assembled in the office at 7.00 P.M. PW.1 then

informed the mediators in the trap party about complaint. Then all

the formalities that had to be undertaken before proceeding to lay the

trap were completed by the DSP. All the pre-trap proceedings were

drafted as the first mediators' report.

8. The trap party then went to the house of PW.1. PW.1 went inside

his house while the other trap party members stayed at a distance

from the house. PW.2, who is an independent mediator, accompanied

PW.1 into his house, and both PWs.1 and 2 were sitting in the drawing

room of the house. At 9.10 P.M., A1 arrived at the house of PW.1. He

entered into the house and enquired with PW.1, stating that he had

prepared a report for filing and demanded the bribe amount. PW.1

went inside, came out, and gave the amount to A1. A1 started

counting it; meanwhile, PW.1 informed the DSP about A1 receiving the

bribe amount. The DSP and other trap party members entered the

house, and the DSP asked appellant to hand over the amount to

another Mediator, Komarayya. Both the hands of the appellant were

tested, which proved positive. A1, PWs.1 and 2 were examined during

post-trap proceedings, and having concluded the post-trap

proceedings, second mediators' report was drafted.

9. During the pendency of the investigation, PW.1 again filed a

complaint with the District Judge, Karimnagar, for the reason that the

records pertaining to OS.No.518 of 1994 and IA.No.519 of 1997 were

fabricated by the Court staff of the Prl. District Munsif (Prl. Junior

Civil Judge), Karimnagar. An enquiry was conducted by the District

Judge (PW.7), and A2 was kept under suspension on the basis of the

report filed by PW.7 after an enquiry. The ACB sought permission of

the High Court to investigate A2. Having received permission, A2 was

also investigated.

10. Having concluded the investigation, a charge sheet was filed

against A1 for the offences under Sections 7, 13(2) r/w. Section

13(1)(d) of the Prevention of Corruption Act, 1988, and sections 109,

120B, 468, 471, and 201 r/w.34 of the Indian Penal Code; and against

A2 for the offences under Sections 13(2) r/w. 13(1)(d) of the Prevention

of Corruption Act, 1988, and Sections 109, 120B, 468, 471, and 201

r/w.34 of the Indian Penal Code. Charges were framed against both A1

and A2 for the said offences. The prosecution examined PWs.1 to 13,

marked documents which are Exs.P1 to P13, and the material objects

MOs.1 to 6 were also brought on record. Ex.D1 is the portion of 161

Cr.P.C. Statement of PW.4.

11. The defence of the appellant is that he was appointed as the

Commissioner in the said case. In pursuance of the directions of A2

appointing him as Commissioner, A1 executed the warrant with the

assistance of the Deputy Surveyor and Land Records. However, PW.1

refused to sign the sketch plan submitted by the Deputy Director.

Accordingly, an interim report was filed on 20.02.1998 during call

work of the Court. PW.1, having come to know about the interim

report and that the report given by PW.4 would go against him, went to

ACB and falsely implicated him. Further, A1 stated that he had

property in Karimnagar which was meant for sale, and PW.1 intended

to purchase the land of A1 and agreed to pay Rs.50,000/- as token

advance. The appellant never demanded any bribe amount, and the

amount that was received on 20.02.1998 was not bribe amount but

the amount that was paid as advance for the land belonging to the

appellant. Since the appellant refused to write a favourable report in

favour of PW.1 and also informed him that the physical survey and the

reports were against him, PW.1 filed a false complaint, having invited

him to collect the advance amount for the purchase of land belonging

to the appellant.

12. The defence taken by A2 is not discussed. However, on the basis

of the evidence placed by the prosecution, the learned Special Judge

found that there was no tampering of the records and there was no

conspiracy between the appellant and A2 to fabricate any court

records or to show that the interim report dated 20.02.1998-Ex.P23,

was not filed during the normal court proceedings.

13. The evidence against A2 is the statement made by PWs.3, 5, 6,

and 7. PW.3 worked as Head Clerk in the Prl. District Court. PW.5

stated that on 21.02.1998 at about 9.30 A.M., A2 sent a word through

Mallesham, Attender, to get the Suit file in OS.No.518/94 and

IA.No.519/97 to his house. Accordingly, PW.5 took the dockets to A2,

and A2 informed PW.5 that an interim report was filed and accordingly

made entries in the docket in the main case and also in the IA. A2

further directed PW.5 to make relevant entries in Ex.P12/A/Diary.

Accordingly, PW.5 made entries at page-79 of Ex.P12/A-Diary that the

interim report was filed.

14. According to PW.3, PW.5, who worked as Bench Clerk in A2's

Court, approached him on 21.02.1998 at 10.45 A.M and handed over

an interim report filed by A1. PW.5 asked PW.3 to enter in the inward

register that the report was received on 20.02.1998. Accordingly, PW.3

directed Anjani Prasad, Inward-Outward Clerk, to put the initial, even

though the interim report was actually received on 21.02.1998.

15. The learned Special Judge, discussing the evidence of PWs.3, 5,

and 6, who are the Subordinate staff, and also PW.7, who was the then

District Judge who conducted the enquiry into the allegation of

tampering with the docket orders in the OS and IA, found that the

docket proceedings in both the IA and OS were done in the normal

course and no interpolation was found. PWs.3 and 5, being the

subordinates of PW.7, must have deposed against A2 due to fear of

PW.7. The learned Special Judge further found that:

i) PW.7 admitted that he did not examine Mallesham, through whom

A2 called PW.5 for getting the case records.

ii) There was no written complaint from PW.1 to PW.7

iii) PW.7 admitted that he did not examine the counsel appearing in

the OS, and he could not say which portion of the docket order was

interpolated.

iv) PW.7 failed to collect any statistics in which A1 appeared before A2

and that any undue favour was done by A2.

v) PW.7 has done a superficial enquiry and found A2 guilty without

there being any concrete evidence.

16. The learned Special Judge further found that, on the observation

of the docket orders passed in both the IA and OS, it does not give

scope to form an opinion that there was interpolation in the said

regard. The bonafides of PWs.3, 5, and 6 were highly suspicious, and

they have spoken against A2 without there being any evidence.

17. Further, the Special Judge found that by looking at the A Diary-

Ex.P14 which is maintained in the Court, it cannot be said that there

was any tampering or that the entries were subsequently made after

closure of the A-Diary proceedings.

18. No reason is given as to why the A-Diary and the docket

proceedings were not subjected to any scientific examination to prove

any interpolations or that the writings were not written at one go, but

at different times. An expert opinion would have helped the

prosecution and the Court to draw conclusions regarding

interpolations in the hand written docket proceedings by A2. As

rightly found by the learned trial Judge, the writing in the docket

orders, both in the IA and OS, appear to have been done in the normal

course.

19. Learned Counsel appearing on behalf of ACB would submit that

PW.7 is a responsible District Judge who had conducted enquiry into

interpolations made in the IA and OS docket proceedings. Further, the

A-Diary was also tampered with. There is no reason as to why PWs.3,

5, and 6 would speak against A2 unless A2 had written the docket

proceedings the next day, i.e., 21.02.1998, and not on 20.02.1998.

For the said reason, the offence of tampering with the record is made

out, and though A2 died and the appeal filed by the State against A2

stands abated, however, the said documents, i.e., the docket

proceedings and A-Diary, can still be looked into as well as the

evidence of PWs.3, 5, 6, and 7 to find A1 guilty of the acquitted

charges.

20. Since the allegation of fabricating the record is also against A1,

the appeal against acquittal filed by ACB is considered, insofar as A1

is concerned.

21. The Counsel for A1 submits that in an appeal against acquittal

unless there are compelling reasons, the appellate Court cannot

interfere in appeal against acquittal. The finding of the learned Special

Judge while acquitting A2 is based on record.

22. 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;

"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:

(2024) 3 Supreme Court Cases 544

(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."

23. The Hon'ble Supreme Court in the case of N. Vijayakumar

v. State of T.N. 2, held as hereunder:--

"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

(2021) 3 SCC 687

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."

24. According to the case of the prosecution, the demand for bribe

was made on 19.02.1998 at about 9.00 p.m., when A1 went to the

house of PW.1 and demanded Rs.50,000/-. According to PW.1, A1

instructed him to pay the amount on the next day, i.e., 20.02.1998, by

noon. Further, A1 informed PW.1 that he would wait till noon on

20.02.1998, thereafter he would take adjournment without filing the

report. A1 stated that he would visit the house of PW.1 at 9.00 P.M. on

the same day for the amount.

25. Regarding the findings of the learned Special Judge about there

being no interpolations in the docket orders, the same has to be

considered. The learned Special Judge has given adequate reasons to

come to the conclusion that there was no tampering of the docket

proceedings or the A-Diary. The reasons given by the learned Special

Judge are already discussed above. In case of acquittal, as observed by

the Honourable Supreme Court, unless there are compelling reasons

to interfere with the findings of acquittal, the appellate Court, in an

appeal against acquittal, cannot interfere.

26. The learned Public Prosecutor, except stating that this Court can

come to a different view on the basis of the evidence of PWs.3, 5, 6,

and 7, has not substantiated how the offence of fabrication of record or

tampering with the docket orders or A-Diary was made out. When the

docket orders and the A-Diary are looked into, there is no scope to

come to a conclusion that they were tampered with as rightly held by

the Special Judge. Further, no reasons are given as to why the said

documents were not sent to a handwriting expert for his opinion

regarding the alleged interpolations. It is well-settled law that, even

though two views are possible, in cases of acquittal, if the appellate

Court is of the view that the findings of the trial Court are reasonable

and based on record, the said findings cannot be disturbed or

interfered with only on the ground that a different view could also have

been taken.

27. Once the interpolations and the allegations made about the

interim report being filed on the next day in collusion with A2 are

disbelieved, it has to be accepted that the interim report was filed on

20.02.1998 in the call work itself. Since the interim report has been

filed, the question of demanding the bribe amount would not arise. As

already stated, PW.1 did not state about his presence in the Court on

20.02.1998 when the case was called. Neither the plaintiff nor counsel

for the plaintiff were examined, for the reasons best known to the

Investigating Officer. The complaint was filed in the afternoon of

20.02.1998 by PW.1 with the DSP, ACB, and on the same day evening,

a trap was also arranged. If the DSP had made enquiries about the

case being called on 20.02.1998 and as to what transpired on that

day, it would have made the issue clear whether the interim report was

filed on the same day or not. It is clear that no enquiries were made by

the DSP about the correctness of the complaint, before registering the

complaint and laying the trap.

28. PW.4 is the person who conducted the survey of the land along

with A1 and gave a report to A1, which is Ex.P9. During the cross-

examination of PW.4, Ex.D1 was marked. According to Ex.D1, PW.4

stated in his 161 Cr.P.C. statement that A1 visited his office on

08.02.0998 in person. A combined sketch on a tracing paper showing

the boundaries of survey numbers 227, 239, and their adjoining fields,

plotted as per tippan measurements, have been sent to A1 through

courier service on 09.02.1998, since the advocate commissioner

informed that he had to file a report on 10.02.1998.

29. In the interim report which was filed, it is mentioned that the 1st

defendant, i.e., PW.1 refused to sign. Entire case revolves around the

filing of interim report on 20.02.1998.

30. Once the version of the prosecution that the interim report was

filed on the next day, i.e., 21.02.1998, and records were tampered with

is not believable, the defence of the appellant that the interim report

was filed on 20.02.1998 has to be accepted. Once the report was

already filed, the question of demanding any amount from the 1st

defendant is improbable. The trap was laid with undue haste on the

same day of lodging the complaint. Apparently, no preliminary enquiry

was conducted, nor did the DSP make any efforts to find out what

transpired in the case on 20.02.1998. If at all the DSP had found that

the interim report was already filed, the question of laying trap would

not arise.

31. The Honourable Supreme Court in P.Sirajuddin v. The State of

Madras 3 held that when a public servant is charged with acts of

dishonesty, and a First Information Report is lodged against him, there

must be a suitable preliminary enquiry into the allegations by a

responsible officer.

AIR 1971 Supreme Court 520

32. The Honourable Supreme Court in C.M.Girish Babu v. CBI,

Cochin, High Court of Kerala 4 held that the defence of an accused

would be by preponderance of probability.

33. In State through Inspector of Police, A.P., v.

K.Narasimhachary 5 and T.Subramanian v. State of T.N. 6 , the

Honourable Supreme Court held that when two views are possible, the

view in favour of the accused can be considered.

34. In B.Jayaraj v. State of A.P7 , a three-judge bench of the

Honourable Supreme Court held that proof of demand is sine qua

non to prove the offences punishable under Sections 7 & 13(1)(d)

r/w 13(2) of the Prevention of Corruption Act. It was held that

mere recovery of the bribe amount is not sufficient to prove the

above offences. It was also held that proof of acceptance of a bribe

can only follow if there is proof of demand. Moreover, it was held

that the presumption under Section 20 of the Act can be drawn

only if there is proof of acceptance of the demand for a bribe.

(2009) 3 Supreme Court Cases 779

(2005) 8 Supreme Court Cases 364

(2006) 1 Supreme Court Cases 401

2014(13) SCC 55

35. In N.Vijayakumar v. State of T.N 8, a three-judge bench of

the Supreme Court upheld and followed the above judgment in

B.Jayaraj v. State of A.P-2014(13) SCC 55.

36. In P.Satyanarayana Murthy v. District Inspector of

Police, State of A.P 9 , a three-judge bench of the Honourable

Supreme Court held that proof of demand for illegal gratification

is the gravamen of the offences punishable under Sections 7 &

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

absence of the same, the charge would fail. It was also held that

mere acceptance and recovery of the illegal gratification would not

be sufficient to prove the above charges.

37. In K.Shantamma v. State of Telangana 10 , a two-judge

bench of the Honourable Supreme Court relied upon and followed

P.Satyanarayana Murthy v. District Inspector of Police, State of

A.P-2015(10) SCC 152.

2012(3) SCC 687

2015(10) SCC 152

2022 (2) ALD (Crl.) 43 (SC)

38. In Punjabrao v. State of Maharashtra11, the accused was

acquitted by taking into consideration his probable explanation

under Section 313 of Cr.P.C.

39. In Bansilal Yadav v. State of Bihar12, it was held that the

presumption under Section 20 of the Act cannot be raised when

the defence of thrusting is taken by the accused.

40. The appellant/A1 has given an explanation that the amount of

Rs.20,000/- that was seized on the date of trap was the amount that

was given by PW.1 as advance for the property that appellant intended

to sell and PW.1 wanted to purchase. PW.1 accepted the fact that the

appellant had property which he intended to sell. Though, the version

of the appellant is that the amount was received towards advance for

the property, however, there is no document. In the background of the

trial Court believing that A2 did not help A1 in any manner whatsoever

and that the interim report was already filed on 20.02.1998 itself, the

demand aspect become doubtful. It is for the prosecution to prove the

'demand' beyond reasonable doubt. Though, the circumstances in this

case create suspicion, however when the case is looked into in its

2002(10) SCC 371

1981(3) SCC 69

entirety, it can be inferred that the prosecution failed to prove the

alleged demand of bribe by A1. Since the version of PW.1 regarding the

demand, in the present facts of case, when collectively looked into,

creates doubt, benefit of doubt is extended. Prosecution has failed to

prove the aspect of demand beyond reasonable doubt.

41. In view of the above discussion, this Court finds that the demand

was not proved by the prosecution, and the consequential recovery

from A1 is of no consequence.

42. Accordingly, Crl.A.No.507 of 2012, filed by the ACB, is dismissed

against A1.

43. Crl.A.No.41 of 2012, filed by Accused No.1, is allowed, setting

aside the conviction recorded by the II Additional Special Judge for

SPE & ACB Cases, Hyderabad, in CC.No.08 of 2010, dated

31.12.2011, for the offences under Sections 7 and 13(1)(d) of the

Prevention of Corruption Act.

__________________ K.SURENDER, J Date: 16.04.2025 tk

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL Nos.41 and 507 OF 2012 Date: 16.04.2025

tk