Telangana High Court

Dr. Bhoopathy Sreehari, Warangal vs Spl. P.P., Acb, Hyd on 25 February, 2025

      THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

            CRIMINAL APPEAL No.543 OF 2015

JUDGMENT:

1 This criminal appeal, under Section 374 (2) Cr.P.C, is

directed against the judgment dated 01.6.2015 passed in

C.C.No.2 of 2015 on the file of the Court of the I Additional

Special Judge for SPE & ACB Cases-cum-V Additional Chief

Judge, City Civil Court, Hyderabad, whereunder the

appellant herein was found guilty for the offences

punishable under Sections 7, Section 13 (2) r/w 13 (1)(d)

of Prevention of Corruption Act, 1988 and sentenced to

suffer rigorous imprisonment for one year and also to pay

fine of Rs.2,500/- for the offence punishable under Section

7 of the P.C.Act and further sentenced to suffer rigorous

imprisonment for two years and also to pay a fine of

Rs.2,500/- for the offence punishable under Section 13 (2)

r/w 13 (1)(d) of the P.C. Act.

2 Heard Sri C.Pratap Reddy learned senior counsel for

Sri Sridhar Lonkala, learned counsel for the petitioner and

Sri Sridhar Chikyala, learned standing counsel-cum-Special

Public Prosecutor for the respondent-State.

3 The factual matrix that led to the filing of the present

criminal appeal is that P.W.1 / complainant worked as tutor

in Psychology department of Kakatiya Medical college from

2004 to 2006. While working as such he joined in three

years PG course as in service candidate. In the year 2009

theory examination of the third year was over, but the

practical and viva-voce were scheduled to be held on 1st

and 2nd June, 2009. The appellant and P.W.3 were the

internal examiners, whereas Dr.Padma from Madras Medical

College and one Nilambika from Coimbatore Medical College

were the external examiners. On 28.5.2009 during morning

hours the appellant called P.W.1 to his chambers and

informed that he would qualify him in the practicals and

viva-voce examination if an amount of Rs.80,000/- is paid

as bribe. But P.W.1 informed him that he was not willing to

pay the bribe. But the appellant informed that if the

demanded amount is not paid he would disqualify him

(P.W.1) in the practicals and viva-voce examinations. The

appellant also clearly stated that the demanded bribe

amount of Rs.80,000/- shall be given to him at his clinic in

JPM Road, Warangal by 7.00 pm on 30.5.2009.

4 As P.W.1 was not willing to pay the bribe amount, he

approached the ACB officials and lodged Ex.P.1 report for

taking necessary action basing on which P.W.5 - Dy.S.P.

obtained permission from the competent authority and

registered a case in Cr.No.17/ACB-CIU-HYD /2009 and

issued Ex.P.9-FIR and took up investigation.

5 During the course of investigation, P.W.5 secured the

presence of mediators viz., P.W.2 and L.W.3, prepared

Ex.P.3 pre-trap proceedings and laid a trap b observing

necessary legal formalities, such as applying

phenolphthalein powder to the currency notes, noting down

the serial numbers and denominations of the currency

notes etc., On 30.5.2009, P.W.1 went to the clinic of the

appellant at JPN road, Warangal and give MO.7-bribe

amount to the appellant. Thereafter P.W.5 rushed to the

clinic of the appellant and recovered M.O.7 which was on a

table of the appellant and subjected the hands fingers of

the appellant and contact portion of the table drawer to

chemical test in which the right hand was and the contact

portion of the table-drawer yielded positive result, whereas

the left hand wash of the appellant remained colourless.

P.W.5 also seized the material objects under the cover of

Ex.P.5 post-trap proceedings, prepared Ex.P.4-rough sketch

and arrested the appellant and sent him to judicial custody.

After completion of investigation P.W.5 laid charge sheet

against the appellant, which was taken on file as C.C.No.2

of 2015 on the file of the trial Court for the offences

punishable under Sections 7, Section 13 (2) r/w 13 (1)(d)

of Prevention of Corruption Act, 1988.

6 The appellant was examined under Section 239 Cr.P.C

and he denied the commission of the offences and claimed

to be tried. Accordingly, charges were framed against him

for the offences punishable under Sections 7, Section 13

(2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988.

During the course of trial, the prosecution examined P.Ws.1

to 5 and got marked Exs.P.1 to P.11 besides M.Os.1 to 7.

On behalf of the appellant D.W.1 was examined but no

documents were marked.

7 On appreciation of the entire evidence available on

record, both oral and documentary, the trial Court found

the appellant guilty of the offences punishable for the

offences punishable under Sections 7, Section 13 (2) r/w

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

accordingly convicted and sentenced him as stated supra.

Aggrieved, the accused preferred the present appeal.

8 Sri C.Pratap Reddy learned senior counsel contended

that the trial Court erred in placing reliance on the highly

interested and discrepant testimony of P.Ws.1, 2 and 5. He

further submitted that the trial Court ought to have seen

that the appellant is not in a position to do any official

favour to P.W.1 as the question of passing P.W.1 by the

appellant alone does not arise. He further submitted that

the appellant alone is not the only examiner and in addition

to him there are two other internal examiners whose

particulars will not be known to any one till the time of

examination and hence it cannot be said that the appellant

can do any official favour to P.W.1 on his own. He further

fervently submitted that there is absolutely no legal

evidence on record to prove the alleged demand and

acceptance of the tainted money by the appellant and that

the tainted amount was recovered from the table of the

appellant is not conclusive proof leading to the sole

inference that the said amount was demanded and

accepted by the appellant for doing an official favour to

P.W.1. He further submitted that the trial Court ought to

have believed the version of the appellant that P.W.1 came

to his clinic and kept the money on the table and stated

that he would come back and take the money instead of

drawing an inference that P.W.1 gave the tainted money as

bribe to the appellant on his demand. The learned senior

counsel further submitted that the trial Court ignored a vital

aspect that P.W.1 bore grudge against the appellant on the

ground that the appellant was responsible for withholding

of his hall ticket. Accordingly he prayed to allow the appeal

and acquit the accused of the charged offences by setting

aside the judgment of the trial Court. In support of his

contentions, the learned senior counsel relied on the ratio

laid down in the following decisions:- 1) Mir Mustafa Ali

Hasmi vs. State of A.P. 1, 2) State of Kerala v.

C.P.Rao 2, 3) C.Giriprasad Babu vs. State, ACB,

Nizamabad Range, Nizamabad3, 4) K.Shanthamma vs.

State of Telangana 4, 5) P.Satyanarayana Murthy v.

Dist. Inspector of Police 5, 6) B.Jayaraj v. State of

A.P 6, 7) Dashrath Singh Chauhan v. Central Bureau of

Investigation7, 8) A.Subair v. State of Kerala 8, 9)

K.Shankar v. State of A.P 9, 10) Sk. Hussain v. State of

A.P. 10, 11) Addala Subrahmanyam v. State 11, 12)

J.Srinivasa Rao v. State of A.P 12, 13) K.Ramakrishna

1 2024 SCC OnLine SC 1689 2 2012 CRI.L.J.2607 3 2022 (1) ALD (Crl.) 96 (TS) 4 2022 (2) ALD (Crl.) 43 (SC) 5 2015 (2) ALD (Crl.) 883 (SC) 6 2014 (2) ALD (Crl.) 73 (SC) 7 2018 (2) ALD (Crl.) 952 (SC) 8 2010 (1) ALD (Crl.) 497 (SC) 9 2023 (2) ALD (Crl.) 983 (TS) 10 2020 (1) ALD (Crl.) 917 (TS) 11 2013 (1) ALD (Crl.) 934 (AP) 12 2020 (1) ALD (Crl.) 507 (TS)

v. State 13, 14) State v. R.Krishnaiah 14 and K.Shankar

v. State of A.P15.

9 On the other hand, Sri Sridhar Chikyala, learned

standing counsel-cum-Special Public Prosecutor for the

respondent State submitted that the offences charged

against the appellant were proved beyond reasonable doubt

and that the appellant was on the verge of retirement and

hence there was every possibility for him to demand bribe

from P.W.1 in order to get him qualifying marks in the

internals / practicals and in that view of the matter the trial

Court has correctly drawn the presumption under Section

20 of the P.C Act in coming to such conclusion. It is his

predominant contention that once the factum of demand

and acceptance was proved, presumption is raised under

Section 20 of the Prevention of Corruption Act, then the

burden shifts to the Accused Officer to prove his case that

the said amount was not towards bribe. The Honourable

Supreme Court held that the premise to be established on

13 2019 (2) ALD (Crl.) 125 14 2013 (1) ALD (Crl.) 331 (AP) 15 2023 (2) ALD (Crl.) 983 (TS)

the facts for drawing presumption was that there was

payment or acceptance of gratification. Once such premise

is established inference to be drawn is that the said

gratification is accepted as motive or reward for doing or

forbearing to do any official act. By relying on the ratio laid

down in Chaturdas Bhagwandas Pael v. The State of

Gujarat16 and Girja Prasad (Dead) by Lrs. vs. State of

Madhya Pradesh 17, he enumerated the circumstances

under which presumption has to be raised i.e. once the

initial burden of the prosecution is discharged regarding

demand and acceptance of bribe, then the onus shifts on to

the accused officer. In the instant case the prosecution has

successfully proved the demand and acceptance and that

the trial Court has gone into all the aspects meticulously

and hence the impugned judgment does not warrant

interference from this Court; therefore, the appeal is liable

to be dismissed.

10 In the light of the above contentions, now the point

that arises for consideration in this appeal is:

16 AIR 1976 SC 1497 17 AIR 2007 SC 3106

"Whether the prosecution has proved the guilt of the appellant for the charged offences beyond reasonable doubt or not?"

11 The evidence of P.W.1 / complainant goes to show

that the final examinations of the third year consisting of

two spells. One is of theory and another is practical and

Viva Voce. By the end of May, 2009, theory examinations

were completed. Practical and Viva Voce was scheduled to

be held on 1st and 2nd June, 2009. There were two internal

examiners and two external examiners for conducting the

practicals and Viva Voce. The internal examiners were

Dr.A.N.R.Laxmi and the appellant herein. On 28.5.2009 in

the morning hours he went to the chambers of the

appellant on being called by him. When he went and

greeted the appellant, the appellant informed him that he

would pass the practical and Viva Voce examinations if an

amount of Rs.80,000/- is paid as bribe. Then he informed

the appellant that he was not at all willing to pay the bribe

amount. Then the appellant stated that if the bribe is not

given he would disqualify in the practical examinations and

Viva Voce. The appellant clearly stated that the demanded

bribe of Rs.80,000/- shall be given to him at his clinic at

JPN Road, Warangal by 7.00 PM on 30.5.2009.

12 The contention of the learned counsel for the appellant

that from the evidence of P.W.1 itself it is clear that the

appellant is not the only person to pass P.W.1 in practicals

/ Viva Voce examination of PG Physiology. Along with the

appellant, P.W.3 was also appointed as internal examiner.

So the appellant alone cannot take decision without there

being the decision / opinion of P.W.3 also, apart from the

two external examiners whose particulars will not be

available till the last moment before commencement of the

examination and it may be true that all the four examiners

will have to assess the performance of the candidate

together and award marks. However, it is the categorical

statement of P.W.1 in his cross-examination that whatever

the internal examiners say the same will be accepted by

the external examiners.

13 Insofar as the aspect of official favour pending with

the accused is concerned, the evidence of P.W.3 who was

one of the internal examiners goes to show that they give

marks in OMR sheets and send the OMR marks sheet to the

University in a sealed cover attested by all the four

examiners. After awarding the marks by all the examiners

the consolidated marks will be entered in OMR sheet. P.W.3

categorically stated in her cross examination that it is true

the marks will be given by all the four examiners

individually. In view of the evidence of P.W.3, all the

examiners have to individually assess the performance of

the candidate and award marks. But that by itself we

cannot rule out the possibility of the appellant influencing

the external examiners in awarding marks to the

candidates. Therefore, this Court is of the opinion that

official favour is pending with the appellant insofar as

awarding of marks to P.W.1 is concerned.

14 Insofar as the aspect of demand is concerned, the

evidence of P.W.1 coupled with Ex.P.1 report would go to

establish the said aspect. It is the categorical evidence of

P.W.1 that the appellant himself called him to his chamber

and demanded Rs.80,000/- on the premise that he would

see that P.W.1 go through the practical examinations. If

P.W.1 is not inclined to give said amount, he (appellant)

would fail him (P.W.1) and since he was not willing to give

that amount, P.W.1 lodged Ex.P.1 complaint. In order to

dislodge the case of P.W.1, the appellant did not place on

record any animosity or ill-will between P.W.1 and the

appellant. So it can be held that the appellant demanded

P.W.1 the said bribe to do official favour to P.W.1.

15 Insofar as the aspect of acceptance is concerned, it is

the categorical statement of P.W.1 that he went to the

clinic of the appellant in JPN Road, Warangal and gave the

amount to the appellant, which the appellant took the same

with his right hand and put it in his table drawer which was

in front of him and he assured P.W.1 that he would get him

passed in the practical examinations. Thereafter, on his

given an affirmative pre-arranged signal, the ACB officials

rushed into the clinic of the appellant and recovered the

amount. The evidence of P.W.1 to this extent is unshaken

and fortified by the evidence of P.W.5 who stated the

procedure followed at the time of laying the trap,

categorically.

16 The appellant got examined D.W.1. His evidence was

that on 30.5.2009 after 6.30 PM he was present in the

clinic of the appellant. Then one person came there and

kept a cover on the table of the appellant and went away

saying that he would come back soon and collect the cover.

Meanwhile, 5 or 6 people rushed into the clinic and

informed that they are ACB people coming from Hyderabad

and those people asked him to say outside of the clinic. He

waited for more than ½ an hour outside of the clinic. But

none called him inside and as such he went home. But

P.W.5 denied the suggestion that D.W.1 was present in the

clinic of the appellant at the relevant point of time.

Moreover, to substantiate his presence in the clinic of the

appellant, D.W.1 did not produce any further evidence to

believe his version.

17 Coming to the aspect of presumption under Section

20 of the P.C.Act, though the appellant took a defence that

there is no evidence for demand and acceptance, yet,

passing of consideration need not be proved by direct

evidence. It can also be proved by circumstantial evidence.

The evidence of P.W.2, a gazetted officer, who acted as

mediator to the proceedings, categorically established the

recovery of the tainted amount from the appellant.

Therefore, it is for the appellant to explain as to how he

received the amount. Keeping in view the evidence of

P.Ws.1, 2 and 5 the court has to draw presumption under

Section 20 of the Act. The defence of the appellant that

P.W.1 himself came to his clinic and put the amount on the

table stating that he would come back and collect it is not

supported by legally admissible evidence. The plea must

be probable that even an ordinary person can accept it.

18 The crucial aspect to be considered is that the

evidence of D.W.1 is that P.W.1 gave a cover to the

appellant. If it is true, how the appellant came into contact

of the tainted amount? If really the appellant had not

demanded the alleged bribe from P.W.1 because had the

appellant not demanded the alleged bribe amount from

P.W.1, certainly he would not have come into contact the

tainted amount and simply he would have left the cover on

the table itself or at least rejected the request of P.W.1 to

keep the cover with him for some time. Further, it is also

not the evidence of D.W.1 or for that matter the appellant

that he had enquired with P.W.1 about the cover and what

was in it. So the evidence of P.W.1 to the extent that on

seeing him (P.W.1), the appellant enquired with him

whether he brought the amount, then he said that he

brought the amount, and when the appellant asked him to

handover the amount, he took out the amount from his

right side pants pocket and then the appellant received it

with his right hand and kept it in the table drawer which is

in front of him and assured that he would get P.W.1 passed

in the examination appears to be probable in order to draw

presumption under Section 20 of the Act.

19 In the light of the above discussion, I am of the

considered view that the prosecution succeeded in bringing

home the guilt of the charged offences and hence the

judgment under appeal does not warrant interference of

this Court on any point much less any legal aspect.

20 As seen from the record, as on today the appellant is

aged 73 years. The Hon'ble Supreme Court in V.K.Verma

vs. Central Bureau of Investigation 18 held as follows:

15. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.

16. Accordingly, the appeal is partly allowed. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs.50,000/- is imposed as fine.

The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of six months. On payment of fine, his bail bond will stand cancelled.

21 In the instant case also the appellant is aged 73 years

and he has also has already undergone physical

incarceration for a considerable period. In that view of the

matter, the period of sentence imposed against the

appellant is reduced to that of the period which he had

18 (2014) 3 SCC 485

already undergone. However, the amount of fine of

Rs.2,500/- imposed against the appellant for each offence

is enhanced to Rs.1.00 lakh each to be paid within one

month from today. Failing which the appellant shall suffer

simple imprisonment for six months.

22 Except the above modification in respect of period of