Telangana High Court
M.S.Roy vs The State Of A.P., Through Cbi on 10 January, 2025
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.458 OF 2013
JUDGMENT:
1. The appellant was convicted for the offence under Sections
7 of the Prevention of Corruption Act, 1988 and sentenced to
rigorous imprisonment for a period of five years and to pay fine of
Rs.30,000/-, in default, to suffer simple imprisonment for six
months vide judgment in C.C.No.2 of 2007 dated 10.06.2013
passed by the II Additional Special Judge for CBI Cases,
Hyderabad. Aggrieved by the same, present appeal is filed.
2. Heard Sri M.Kalyana Rama Krishna, learned Counsel for the
appellant and Sri T.Srujan Kumar Reddy, learned Special Public
Prosecutor for CBI.
3. Briefly, the case of the prosecution is that a case was
registered by the CBI based on a written complaint lodged on
06.11.2006 by the complainant (PW1) against
Mr.M.S.Roy/appellant, SDE (PR & Marketing), O/o GMTD, BSNL,
Warangal. The complaint pertained to the alleged demand of a
bribe of Rs.3,750/- by the appellant for issuing SIM cards i.e., Rs
2,500 for 50 SIMs received on 12.10.2006 and Rs 1,250/- for 25
SIMs to be issued on 06.11.2006.
4. P.W.1 was authorized to sell BSNL products. On
12.10.2006, PW1 applied to the appellant for 50 SIM cards.
Appellant allegedly demanded Rs.2,500/- i.e., Rs 50 per SIM card
from PW1's commission of Rs 100 per SIM card. When PW1
expressed inability to pay, appellant asked him to bring the
amount later when he would return for stock. On 01.11.2006,
PW1 again approached appellant to apply for an additional 25
SIM cards. Appellant allegedly demanded Rs.3,750/-, i.e.,
Rs2,500/- for the previous 50 SIMs and Rs.1,250/- for the new
25 SIMs, and directed PW1 to bring the bribe amount on
06.11.2006 to collect the SIM cards.
5. Based on a written complaint by PW1, received by PW8/
Inspector, CBI, a case was registered by PW5/Inspector, CBI after
obtaining orders from the SP, CBI. PW8, authorized to conduct
the investigation, decided to lay a trap. The trap party included
two independent witnesses, PW2 and K. Niranjan Rao. PW2 was
instructed to act as an accompanying witness to overhear the
conversation between the appellant and P.W.1 and to give a pre-
arranged signal by wiping his face with a handkerchief. A digital
tape recorder was provided to PW1 after its functioning was
explained. Pre-trap proceedings began at 11:30 a.m. on
06.11.2006 and concluded at 12:35 p.m which is ExP2. All the
trap party members reached the office of the appellant and the
digital recorder was activated. PW1, accompanied by PW2,
entered the office premises of the appellant. PW1 proceeded into
chambers of the appellant, while PW2 remained outside,
observing the transaction through the glass door of the
chambers. Thereafter, PW2 came out of the office and gave the
pre-arranged signal by wiping his face with a handkerchief.
Observing the signal, the trap team, including the independent
witness, rushed to the first floor of the office. PW1 informed the
Trap Laying Officer that the appellant had accepted the bribe
amount and placed it in his left-side shirt pocket. The tape
recorder was then switched off by the TLO. After the trap, PW1
led the team to appellant's chamber. When TLO questioned
appellant about the demand and acceptance of the bribe,
appellant became nervous and remained silent. The test on both
hands was conducted in two separate glass tumblers containing
sodium carbonate solution, which turned pink. Upon inquiry,
appellant admitted to receiving the bribe and stated that he
initially placed the money in his left shirt pocket, and after PW1
left, he moved it to his right back pant pocket. As per the
directions of the Trap Laying Officer, independent witness
Niranjan Rao recovered Rs.3,750/- from appellant's pant pocket.
The serial numbers on the recovered currency matched those
recorded in ExP2. The conversation recorded on the digital voice
recorder was transferred to an audio cassette (MO10) and seized.
The post-trap proceedings were concluded in the second
mediator's report, which is ExP3.
6. PW1 stated that he had submitted a requisition for 25 SIM
cards and 100 top-up cards to the appellant on 06.11.2006,
informing him that the required bribe of Rs. 3,750/- had been
brought as demanded. After receiving the bribe, appellant
endorsed the requisition to the JAO and instructed him to
process it. Investigation revealed that appellant was the Nodal
Officer for Cellular Mobile telephone services. Dealers submit
requisitions for SIM cards, recharge coupons, or top up cards to
the SDE, who releases them based on stock availability and
endorses the requisition to the JAO. The JAO then generates
computerized invoices, and after payment at the cash counter,
the stock is released upon submission of the receipt.
7. The main defence of the appellant is that amount of
Rs.3,500/- was not received as bribe but as repayment of hand
loan taken by PW1. The appellant claimed to have advanced
Rs.5,000/- to PW1 on 3.10.2006 when PW1 approached him with
an indent form for SIM cards, recharge coupons, etc., and
required Rs.5,000/- for paying Rs.18,560/- towards the cost.
Despite reluctance, the appellant lent the amount, and PW1
promised repayment within 10 days during his next visit for SIM
cards. This event was allegedly witnessed by P.Parthasarathi, M
Subba Rao/DW3, and Srikanth, visitors to the office. On
12.10.2006, PW1 presented another indent for SIM cards, which
the appellant sanctioned. The appellant then inquired about the
loan repayment, and PW1 stated he had Rs. 20,000/- out of
which Rs.18,750/- was for the cards. PW1 paid Rs.1,250/- to the
appellant and promised to repay the balance later. The appellant
allegedly expressed dissatisfaction in the presence of one Chinna
Babu, who visited the office to obtain SIM cards for his wife. It
was further claimed that PW1 bore grudge due to this incident
and reported the matter to the CBI. The appellant stated that
PW1 subsequently paid Rs.3,750-/MO1 as the balance loan
repayment and not as illegal gratification, in the presence of
D.W.1/N Narasimha Chari and other visitors.
8. Learned Special Judge examined P.Ws.1 to 10 and marked
Exs.P1 to P22. MOs.1 to 10 were also marked during trial.
D.Ws.1 to 3 were examined and Exs.D1 to D9 were marked by
the appellant.
9. Learned counsel appearing for the appellant argued that the
complaint was filed on 06.11.2006 at 10.00 a.m and within no
time, P.W.7 registered the FIR at 10.45 a.m and the trap was
arranged. The first mediator's report was drafted by 11.30 a.m
and within two hours trap was laid. The speed at which the trap
was laid would go to show that the Investigating Officer did not
make any effort to verify the correctness of the complaint filed by
P.W.1. In fact, P.W.2, who is the independent mediator and
accompanying witness stated that on 05.11.2006 at 4.30 p.m
itself, he was informed to assist CBI team. If the CBI officer had
already asked P.W.2 and another to act as witnesses, the version
of the complaint being lodged at 10.00a.m on 06.11.2011 is
falsified.
10. Learned counsel further submitted that the digital recorder
contained true facts which were recorded on the date of trap, but
no efforts were made to file the transcripts of the conversation
between the persons in the recording. It is the case of the
prosecution that P.W.1 carried the digital recorder and failure to
bring the recorder on record has prejudiced the appellant.
Learned counsel relied on the judgment of Hon'ble Supreme
Court in the case of Mir Mustafa Ali Hasmi v. State of Andhra
Pradesh 1.
11. On the other hand, learned Special Public Prosecutor for
CBI argued that the version of P.W.1 that SIM cards were issued
is not disputed. However, the dispute is regarding Rs.50/-
demanded for every SIM card that was provided by the appellant.
The specific defence of the appellant is that P.W.1 had taken loan
of Rs.5,000/- and earlier repaid Rs.1,250/-. As on the trap date,
remaining amount of Rs.3,750/- was returned. However, to
prove his case, witness D.W.2 was examined, who impersonated
himself as the husband of P.W.10. D.W.2 admitted that he had
impersonated at the instance of the appellant. In the said
circumstances, when the defence taken by the appellant was not
SLP (Crl.) No.9091 of 2022, dated 10.07.2024
proved and the prosecution was able to prove the demand and
acceptance of bribe through reliable evidence of P.Ws.1 and 2,
the trial Court has rightly convicted the appellant.
12. The appellant had examined D.Ws.1 to 3. His defence is that
the appellant advanced an amount of Rs.5,000/- to P.W.1 on
03.10.2006 for paying the cost of Rs.18,560/-. Again on
02.10.2006, P.W.1 raised indent for SIM cards which was
sanctioned by the appellant and the amount payable was
Rs.18,750/-. Rs.20,000/- was paid and Rs.1,250/- was towards
part payment of the loan. The appellant had expressed
dissatisfaction for nonpayment of the loan amount, for which
reason, false case was fabricated.
13. The prosecution, to establish demand made by the
appellant, relied on the complaint Ex.P1, the testimony of P.W.1
and P.W.2 on the date of trap. It is not the case of the appellant
that he was not in a position to do any official favour to P.W.1
i.e., sanctioning SIM Cards. In fact, the appellant admitted that
SIM cards were issued in accordance with indents raised by
P.W.1.
14. According to P.W.1, an amount of Rs.3,750/- was
demanded for the reason of providing 75 SIM cards. Out of
Rs.3,750/-, Rs.2,500/- was towards 50 SIMs that were earlier
given to P.W.1 and Rs.1,250/- for 25 cards to be handed over on
06.11.2006. The said fact of providing 50 SIMs is not disputed.
15. The appellant examined D.W.2/Vemuri China Babu on
18.03.2013, who stated in his chief examination that he is the
husband of one Vemuri Sirisha (later examined by the
prosecution as P.W.10) and he used to purchase SIM cards on
behalf of his wife-P.W.10. According to his version in the chief
examination on 12.10.2006, he approached the appellant and
gave indent form signed by his wife. In his presence, the
appellant demanded P.W.1 to repay the hand loan amount and
repaid Rs.1,250/- to the appellant promising that he will repay
the balance amount of hand loan on the next date and further
stated that Rs.5,000/- was the hand loan amount. However,
during the course of cross-examination by the learned Public
Prosecutor on 17.04.2013, D.W.2 admitted that his name was
not Vemuri China Babu as deposed by him earlier before the
Court and his original name was Tirunagari Vinod Kumar S/o
Tirunagari Basaiah. He gave false evidence at the instance of the
appellant since the son of the appellant was well known to him.
16. The appellant has fabricated evidence in his support and
made D.W.2 impersonate before the Court and speak about his
defence of P.W.1 returning the amount of Rs.1,250/-. The
admission made by D.W.2 that he impersonated as another
person to help the appellant, falsifies the defence of the appellant.
17. On the basis of complaint Ex.P1 and appellant admitting
issuing SIM Cards, on the date of trap, P.W.2-independent
mediator witnessing demand, the prosecution was able to prove
the demand aspect.
18. Presumption under Section 20 of the Act shifts the burden
on to the appellant to prove his defence of accepting Rs.3,750/-
towards repayment of loan. As already discussed, false evidence
was placed before the Court. On the date of trap, no explanation
regarding loan being advanced to P.W.1 was taken by the
appellant. The appellant suggested to the Investigating Officer
that though it was explained that the amount was towards loan
on the date of trap, the said version was not written in the second
mediator's report. However, for the first time defence of loan was
taken during the course of trial, but the appellant failed to prove
his defence. More so, the appellant has come up with fabricating
evidence.
19. Learned counsel argued that though the complaint was
given on 06.11.2006, arrangements were made a day prior as
admitted by P.W.2. P.W.1 stated that he made phone call to SP,
CBI, after the demand of bribe on 01.11.2006, who advised P.W.1
to meet Jaffar-Inspector-P.W.8. P.W.8 during his examination
stated that he received telephonic message from the SP, CBI
office and in view of the statement of P.W.1 that he had called the
SP, CBI after the demand on 01.11.2006, P.W.8 taking steps to
intimate the witnesses, will not in any manner cause prejudice.
As already discussed, the defence of the appellant is one of
receiving the amount given by P.W.1 towards repayment of loan.
20. The other argument of the appellant is that the transcript of
the recording devise cassette/MO10 was not placed before the
Court which caused prejudice to the appellant. On 06.06.2013,
learned Special Judge in the presence of the learned Public
Prosecutor and counsel for appellant, played the audio cassette.
However, except the sample voices of P.Ws.1 and 2, the other
conversation was not clearly audible on account of the
surrounding disturbances. P.W.9-Inspector of Police stated that
MO10 cassette was sent to CFSL, CBI, Delhi and Ex.P17 is the
report dated 07.12.2012 informing that the job related to
transcription of recorded version could not be undertaken in the
lab. Ex.P18 is the letter addressed by CFSL stating that the
laboratory does not have the facility to retrieve data from the
audio cassette as well to transcript the voice recording into text
files and accordingly returned M.O.10.
21. It is not the case that any evidence was suppressed. MO10
was sent to the lab. However, the transcripts could not be made
and further, the version in the cassette was heard in the open
Court. The learned Special Judge observed that the version
during the trap proceedings was not audible due to surrounding
disturbing noises.
22. In view of the above discussion, the appeal fails and
dismissed. However, the sentence of imprisonment is reduced to
six months. Since the appellant is on bail, the trial Court is
directed to cause appearance of the appellant and send him to
prison to serve out remaining period of sentence. The remand
period, if any, shall be given set off under Section 428 Cr.P.C.
23. Accordingly, Criminal Appeal is partly allowed.
Consequently, miscellaneous applications, if any, shall stand
closed.
__________________
K.SURENDER, J
Date: 10.01.2025
kvs
