Andhra HC (Pre-Telangana)
Sk. Hussain vs The State Of A.P, Rep. By Inspector Of ... on 5 September, 2014
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.487 of 2006
05-09-2014
Sk. Hussain..... Appellant
The State of A.P, Rep. by Inspector of Police, ACB, Nizamabad. . Respondent
Counsel for Appellant : Sri A.R. Samudrala
Counsel for Respondent : Sri R. Ramachandra Reddy
Spl. Public Prosecutor for ACB
<Gist:
>Head Note:
? Cases referred:
1) (2001) 1 SCC 691 = AIR 2001 SC 318
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.487 of 2006
JUDGMENT:
This Criminal Appeal is preferred by Accused Officer (AO) aggrieved by the judgment dated 14.03.2006 in C.C.No.28 of 2001 passed by learned Principal Special Judge for SPE and ACB cases, City Civil Court, Hyderabad, convicting him for the offences under Sections 7 and 13(1) (d) of Prevention of Corruption Act, 1988 (for short P.C Act) and sentencing him to suffer RI for one year and pay fine of Rs.1,000/- and in default to suffer SI for three months on first count and also sentencing him to suffer RI for two years and pay fine of Rs.2,000/- and in default to suffer SI for six months on second count with a direction that both the substantive sentences of imprisonment should run concurrently.
2) The factual matrix of the case is thus:
AOShaik Hussain worked as Supervisor in District Cooperative Central Bank (for short DCCB), Armoor, Nizamabad District during 1999.
a) According to prosecution, Pendi Pentojicomplainant (PW1) who is having 3 acres of agricultural land at his native place Argul village applied for agricultural loan for digging bore-well and erecting a current motor to the said bore well in his land with all necessary documents to the Primary Agricultural Cooperative Society (for short PACS), Argul. On receipt of the said application, the Secretary and President of PACS forwarded the same to DCCB, Armoor branch for sanction of the loan. Accordingly, DCCB had sanctioned loan of Rs.34,500/- to PW1 for the said work. Therefore, on 07.06.1999 PW1 approached AO and requested him to issue cheques for the said sanctioned loan amount. At that time, AO demanded Rs.2,000/- as bribe to do the official favour. Again on 08.06.1999 when PW1 approached him, AO reiterated his earlier demand. When PW1 expressed his inability to pay the said amount, AO reduced the same to Rs.1,400/- and further instructed him to pay the said demanded bribe amount on 09.06.1999.
b) Unwilling to pay bribe, PW1 submitted Ex.P19complaint to DSP, ACB, Nizamabad (PW8) on 08.06.1999 who registered the same as a case in Cr.No.3/ACB-NZB/99 and successfully laid a trap against AO on 09.06.1999. On completion of investigation charge sheet was laid against AO.
c) On appearance of the AO charges under Sections 7 and 13(1)(d) r/w 13(2) of PC Act were framed against him and trial was conducted.
d) During trial, PWs.1 to 9 were examined and Exs.P1 to P19 were marked and MOs.1 to 8 were exhibited on behalf of prosecution. DW1 was examined on behalf of defence.
e) The trial Court on appreciation of evidence held that prosecution proved the guilt of the accused beyond reasonable doubt and accordingly convicted the AO, as stated supra.
Hence, the appeal.
3) When the matter came up for hearing, there was no representation on behalf of appellant by his learned Counsel Sri A.R. Samudrala. Hence, heard arguments of Sri R. Ramachandra Reddy, learned Special Public Prosecutor (Spl.P.P) for ACB cases.
4) Supporting the judgment of trial Court, learned Spl.P.P argued that the AO being the Supervisor in DCCB, Armoor, Nizamabad District, initially demanded a bribe of Rs.2000/- from PW.1 and later reduced it to Rs.1,400/- for doing an official favour of issuing the two cheques for Rs.34,500/- being the loan amount sanctioned by DCCB to enable PW.1 to purchase bore-well and pump-set from PW.5the dealer of submersible pump-sets. He further submitted that on the complaint lodged by PW.1, AO was successfully trapped by the PW8the DSP, ACB. Ofcourse during trial PW1 turned hostile and did not support the prosecution case. He submitted that the trial Court nevertheless, following the precedential law laid down by the Honble Apex Court, has drawn the presumption under Section 20 of P.C. Act against the AO basing on the other available evidence on record. The trial Court found that the spontaneous explanation offered by AO to the effect that the amount of Rs.1,400/- paid by PW.1 to him was towards the share amount of a member in Primary Agricultural Cooperative Society (PACS) and it was not illegal gratification was unbelievable since the AO had no right to collect the membership fee/share capital amount from PW.1 which was the duty of PW.3 alone and further the share amount being Rs.3,450/- i.e, 10% of the loan amount and whereas the amount he received from PW.1 being Rs.1,400/-, there was no match between both the amounts.
Accordingly, the trial Court convicted and sentenced him and there was no illegality or irregularity in it. Learned Spl.P.P argued that the observations of the trial Court would show that the AO was not competent to collect the membership fee which was the duty of PW.3 and also that the amount which he received did not in any way match with the actual membership fee which is Rs.3,450/-. In his spontaneous explanation the AO did not try to explain the reason for difference between the two amounts and he tried to explain the same only during the trial through DW.1 which is unbelievable. He thus submitted that the judgment was perfectly right and there is no need to interfere with the same. He prayed to dismiss the appeal.
5) In the light of above arguments, the point for determination in this appeal is:
Whether the conviction and sentence passed by the trial Court are factually and legally sustainable?
6 a) POINT: It being a trap case, prosecution shall by cogent evidence establish the two vital ingredients of the offence i.e. demand and acceptance of bribe to enable the Court to draw mandatory presumption under Section 20 of PC Act. Record shows that PW1 did not support prosecution case right from the beginning on two vital aspects of demand and acceptance of bribe. In that back drop, the trial Court questioned itself whether the Court basing on the other available evidence on record can come to the conclusion that an official favour was indeed pending with AO; amount voluntarily accepted by him was gratification other than legal remuneration; that the spontaneous explanation offered by him was not plausible and thereby record the conviction against AO. In simple, the trial Court addressed to itself to the effect that in the absence of direct evidence in the form of PW1, whether the Court can resort to the indirect and circumstantial evidence to arrive its conclusion on the aspects of demand and acceptance of bribe.
b) In this context, the trial Court referred the judgment in M.Narsinga Rao v. State of A.P. wherein Honble Apex Court laid down a proposition to the effect that the only condition for drawing a legal presumption under Section 20 of PC Act is that during trial it should be proved that the accused has accepted or agreed to accept gratification and section does not say that the said condition should be satisfied through direct evidence only and direct evidence is only one of the modes through which a fact can be proved, but that is not the only mode envisaged in the Evidence Act.
Following the above proposition the trial Court embarked upon scrutinizing the other evidence and facts and circumstances to know whether the prosecution could establish its case or not. In that process, the trial Court ultimately held that the prosecution could, with the aid of other evidence coupled with the admission of AO, established the acceptance of tainted amount by AO.
c) Then, trial Court again following another proposition in M.Narsinga Raos case (1 supra) to the effect that in order to draw a legal presumption under Section 20 of PC Act, the Court can resort to factual presumption under Section 114-A of Evidence Act, has held that the amount which was held received by AO supra was illegal gratification other than legal remuneration and accordingly drew the presumption under Section 20 of PC Act against AO. Then, the trial Court tested the veracity of the defence explanation offered to dispel the legal presumption. Ultimately the trial Court rejected the defence explanation on the following two main grounds:
i) Firstly, that the evidence of PW3 showed that it was PW3the Paid Secretary of Argul PACS, who is competent to collect the share capital amount/membership fee from PW1 before disbursement of loan and not the AO who is only the Supervisor in DCCB, Armoor.
So also, the answers of DW1 in his cross-examination to the effect that AO after receiving amount of Rs.1,400/- did not pass any receipt for payment of Rs.1,400/- but asked PW3 to pass a receipt for Rs.1,400/- and PW3 replied that he was not having receipts book then, also indicate that if AO himself was really competent to collect share capital amount and associate member fee, there was no reason for him to ask PW3 to pass a receipt for Rs.1,400/- which confirms that AO was incompetent to collect amount and PW3 was competent to collect the share capital amount and to pass a valid receipt.
ii) Secondly, as per the evidence of DW1 the share capital amount being 10% of loan amount works out to Rs.3,450/-, but the amount received by AO was only Rs.1,400/- and in his spontaneous explanation before the trap party members he did not explain the reason for difference in the amount and thereby the amount received by him cannot be said to be share capital.
The above is the theme of judgment of the trial Court. In this appeal, it has now to be seen whether the appreciation of evidence and law is correct or perverse, warranting interference of this appellate Court.
7) As can be seen, the crux of the case lies in the point whether the amount of Rs.1,400/- paid by PW1 and accepted by AO is bribe or towards payment of share capital/membership fee. PW1 had shown a total volte-face since inception and did not support the prosecution case at all. His evidence in chief itself is to the effect that after PW3 informed him that his cheques were ready and lying with AO and asked him to obtain the same from AO, he approached AO and then AO asked him to pay share amount so that he would give cheques to him. Then he informed to AO that he was not having money and requested AO to give cheques but AO refused to give them. His further version is that on the next day again he went to AO and gave Rs.1,400/- towards share amount (emphasis supplied) and then some people came and caught AO at his office. Thus, according to PW1, AO did not demand him bribe and what he paid to him was towards share amount. He was rightly declared hostile by Spl.P.P. The trial Court also rightly branded him as totally untrustworthy of credit.
a) Then, as already narrated supra, the trial Court searched for other indirect evidence and circumstances to know whether the prosecution could bring him the charges. In this regard, the trial Court mainly taken into consideration the evidence of PW2decoy witness, PW3the paid secretary in PACS, Argul and PW8the TLO and held that their evidence was un-impeached except eliciting in the cross-examination of PW2 and PW8 that AO offered spontaneous explanation during post-trap proceedings recorded under Ex.P4. It may be noted that from the evidence of PW2 coupled with other documentary evidence the trial Court firstly gave a finding that an official favour was indeed pending with AO by the date of trap. So, I have carefully gone through the evidence of PW2 and other documentary evidence to know whether the said finding is correct or not.
b) PW2B.Padmanabham and LW3Prabhu Dayakiran were summoned by PW8TLO to act as mediators in the trap proceedings. PW2 deposed about PW1 avouching the complaint allegations before him and LW3 and PW8 laying trap against AO on 09.06.1999 and instructing him to accompany PW1 and watch transactions occurring between him and AO and accordingly all of them proceeding to Armoor and this witness and PW1 going to the office of AO and finding him not available at the first instance and again their going to AOs office at 2.45 PM and meeting him, PW1 asking about his cheque and on that AO asking PW1 whether he brought the amount and PW1 affirming and giving tainted notes to AO and AO receiving the amount with his right hand and keeping the amount in his left side shirt pocket and this witness giving pre-arranged signal and then PW8 and other trap members rushing and catching hold the AO and conducting post trap proceedings etc. facts. In the cross-examination PW2 stated that he stood at the door and the seat of AO was at a distance of 5 to 6 yards from the door, AO seen him but did not ask him to come near to him and AO did not ask PW1 about his identity. In the cross-examination it was not suggested that this witness was not present at the office of AO at the time of trap and did not witness anything. On the other hand, it was suggested to him that AO represented before PW8 that apart from Rs.1,400/- PW1 had to pay some more amount towards share amount and because of that AO kept Rs.1,400/- in his shirt pocket and AO further represented before AO8 that the receipt book was with PW3 and therefore, he could not issue the receipt. PW2 answered that he does not remember whether AO made such representations to PW8 or not. So, in essence PW2s evidence stood unchallenged.
c) Then PW3, the paid secretary PACS, Argul deposed that on 17.12.1998 PW1 gave application seeking loan for digging bore well and for purchase of submersible pump set and on 17.01.1999 this witness along with AO and PW4the in-charge Manager of DCCB, Armoor conducted inspection in the land of PW1 and AO prepared the inspection report and they submitted the report on 12.02.1999. The Assistant Development Officer sanctioned loan for Rs.34,500/- i.e. Rs.12,500/- towards bore well and the remaining amount for pump set and AO brought sanction proceedings to their society and thereafter on 26.02.1999 PW1 mortgaged his land in favour of society and then the society sent the file to head office on 28.05.1999 and after receiving clearance from head office, on 07.06.1999 he prepared two cheques in the name of the company (PW5) and himself and President of the society signed on those cheques and then this witness handed over the cheques to AO on 09.06.1999. He further deposed that on 09.06.1999 when PW1 came to him he informed that the cheques were with AO. He categorically stated that share amounts will be collected by the secretary of the society (emphasis supplied). Through him Ex.P6long term disbursement voucher book which containing two receipts in quadruplicate copies under Ex.P11 were marked. So also, Ex.P7cheque book and Ex.P12 and P17 two cheques prepared by him were also marked through him. In the cross- examination, the evidence of this witness in chief was not challenged but some additional information was elicited relating to who is competent to receive the share capital and associate member ship fee. This aspect can be discussed at the relevant stage of verifying the veracity of defence explanation. So, at the outset, it can be said that evidence of PW3 is not challenged.
d) Then PW8, the TLO deposed about PW1 presenting Ex.P19 complaint on 08.06.1999 on the allegation that AO demanding him bribe of Rs.1,400/- for doing official favour and this witness registering case and laying trap against AO with the help of PW2 and LW3 as mediators and sending PW2 as decoy witness along PW1 and receiving signal from PW2 at about 3 PM at the office of AO and then himself and other trap party members rushing to the seat of AO and conducting sodium carbonate test to his both hands and their yielding positive result and then recovering bribe amount from AO at his instance and then conducting sodium carbonate test to the shirt pocket of AO and seizing the cheque book and other relevant records from PW3 etc. facts. In the cross-examination the main aspects spoken by this witness were not challenged but it was elicited from him that inEx.P10file at page No.3, there was a condition that requisite share capital and associate membership fee should be collected from the borrower before disbursement of loan. PW8 further stated in his cross- examination that AO informed that 10% of loan amount is to be collected as share capital and all the documents relating to the loan of PW1 were with PW3. He denied the suggestion that AO told the trap party that he could not issue the receipt for Rs.1,400/- since the receipt book was with PW3. Thus, most of the evidence of PW8 also stood unchallenged.
8) With the above oral evidence of PWs.2, 3 and 8 and the documentary evidence narrated supra, the trial Court firstly came to the conclusion that official favour was indeed pending with AO by the date of trap. To come to this conclusion the trial Court mainly relied upon the evidence of PW3 coupled with the records produced by him during post trap proceedings such as Ex.P6long term disbursement voucher book and the signatures of AO on Ex.P11receipts in Ex.P6 receipt book with the date 09.06.1999. Seeing the signatures of AO on Ex.P11quadruplicate receipts in Ex.P6receipt book with the date 09.06.1999 i.e. date of trap, the trial Court came to the conclusion that official favour was indeed pending with AO as on the date of trap. The trial Court observed that unless AO subscribed his signatures in long term disbursement receipts and annexing copy of those receipts to the cheques i.e. Ex.P12 and P17, the question of Firm belonging to PW5 drilling and installing current motor with pump set would not take place.
On perusal of above oral and documentary evidence, I hold the trial Court rightly came to the aforesaid conclusion.
9) Having held that official favour was pending with AO by the date of trap, the trial Court basing on the admission of AO that he received the tainted amount, it appears, has drawn the presumption under Section 20 of PC Act against AO. I endorse the method adopted by trial Court for drawing mandatory presumption under Section 20 of P.C Act, as justified under the circumstances of the case.
10) Then, as already stated supra, the trial Court probed in deciding the veracity of defence explanation and held that though spontaneously given was unbelievable.
11) Then, I have gone through the grounds shown by the trial Court for rejecting the defence explanation.
i) Precisely, the first ground was that AO was not competent to collect the share capital/membership fee and it was PW.3 who was competent to do so. In this regard, the evidence of PW.3 which I have already narrated supra would show that he stated in his chief- examination that the share amounts have to be collected by the Secretary of the Society. Of course, as rightly observed by the trial Court, PW.3 in his cross-examination tried to accommodate AO by saying to the effect it is true whoever disburses the cheques, collects the share capital and admission fee and remit in the bank. By this answer in the cross-examination, he tried to scuttle his earlier version in the chief-examination to the effect that Secretary alone is competent to collect the share capital and admission fee. However his accommodative answer in the cross-examination will not stand to the reasoning because of his earlier statement during the trap proceedings.
a) It may be noted that during post trap proceedings when AO reiterated his explanation that he accepted the bribe amount of Rs.1,400/- from PW.1 as share amount of PACS, Argul, PW.8 immediately examined PW.3 who was present there to confirm the same. At that time PW.3 stated as follows which is found a mention in Ex.P.4second mediator report:
When the Secretary G.Gangareddy (i.e.PW3) examined in the presence of we the mediators, he stated that the Supervisor is not the competent authority to collect the share amount of the farmers. Further he stated that the Secretary of PACS collects the share amount and remits the same in the bank. When Sri Shaik Husain questioned about the above procedure, he has not given any satisfactory explanation.
Basing on this earlier statement of PW.3 which was inconformity with his evidence in chief and diametrically opposite to his admission in his cross-examination and also AOs conduct in not challenging the answer of PW3 before the trap party members and his inability to show any rules framed under the Cooperative Societies Act conferring power on some person other than the Secretary to collect share capital and membership fee, the trial Court concluded that AO was not competent to collect the share capital/membership fee as submitted by him during his explanation. The trial Court also held that besides being not competent, AO was not concerned with the share capital amount because he was working as Supervisor in DCCB in Armoor Branch whereas the share capital amount relates to PACS, Argul and hence the question of his collecting share capital and membership fee does not arise.
b) To confirm the incompetency of AO, the trial Court also referred the answers of DW.1 in his cross-examination. It should be mentioned here that the AO examined DW.1 who is the staff assistant in DCCB Armoor Branch and whose seat is by the side of AOs seat to speak that on the date of trap, this witness saw PW.1 came and requested AO to issue cheques relating to his loan amount, AO obtained part of the share capital amount of Rs.1,400/- out of Rs.3,450/- from PW1 and went to PW4 and talked with him for about
10 minutes and returned and informed PW.1 that he had to pay a total amount of Rs.3,450/- towards share capital and unless he brings the balance amount of Rs.2,050/-, the cheques would not be issued to him in favour of M/s. Triveni Engineering Company and on that PW.1 told that he would get the balance amount immediately and climbed down the stairs and within short time thereafter some officials came and trapped AO and when questioned AO represented the trap party that PW.4the manager asked him to see that the entire share capital amount of Rs.3,450/- was collected from PW.1 and that was why he kept the amount of Rs.1,400/- with him and that the receipt book would be in the custody of PW3. So, AO sought to project through DW.1 that he received Rs.1,400/- from PW1 as part of share capital/membership fee but not as bribe. In the cross-examination by Spl.P.P, DW.1 answered thus:
On the date of trap, PW.3 was available at our bank. PW.3 has not passed any receipt for payment of Rs.1,400/-. PW.3s seat is at a distance of 5 yards from us. AO from his table only asked PW.3 to pass a receipt for Rs.1,400/-, but PW3 replied that he was not having receipts book then. AO has not made any attempt to pass a handwritten receipt for receiving Rs.1,400/- in favour of PW.1.
From the above answer, the trial Court observed that if AO was really competent to collect the share capital amount and associate membership fee, there is no reason for DW.1 to assert about AO asking PW.1 to pass receipt for Rs.1,400/- and it would indicate that AO was incompetent and only PW3 was competent to collect the share capital amount and to pass a valid receipt. Thus, from the above evidence, the trial Court held that AO was not competent to collect the share capital amount/ membership fee and his explanation was not true. Sofaras DW.1 is concerned, the trial Court refused to accept his evidence in view of his answer in the cross-examination that neither himself nor PW3 who were present with the AO before trap tried to submit any representation to their superior officials or ACB higher officials narrating that the amount received by AO was towards part of share capital but not as bribe and his not showing any reason for not disclosing this fact to anyone else earlier. The trial Court held that his accommodative evidence in favour of AO will not stand before the evidence of PW.2 who saw PW.1 paying the amount to AO as bribe and his giving signal to the trap party. The trial Court also narrated few other circumstances for rejecting DW.1s evidence which is incompatible with the evidence of PWs.3 and 4.
c) On a keen perusal of the reasons given by the trial Court for holding that AO was not competent to collect the share capital/ membership fee, I am of the considered view that the said ground was based on sound reasoning.
12) Then the second ground on which the trial Court rejected AOs explanation is that when the share capital and membership fee was Rs.3,450/- i.e, 10% of the loan amount which was spoken by DW.1 himself, there was no reason why AO received only Rs.1,400/- from PW.1. The trial Court observed that, that the PW1 paid only part amount and when insisted by AO for the balance amount, PW1 on the pretext of bringing the balance amount went away was not at all disclosed by AO during the post trap proceedings. It was only through DW.1, the said explanation was sought to be projected for the first time.
I find the above reasons given by the trial Court in respect of ground No.2 as logically correct.
13) So at the outset, when the judgment of the trial Court is tested on the anvil of the facts and evidence available on record, its findings are based on the evidence and are supported by legal decisions. Hence, the conviction and sentence passed by it are impeccable and impregnable. I find no reason to interfere with the same.
14) Accordingly, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court in C.C.No.28 of 2001. The Registry is directed to transmit the judgment and record to the trial Court at the earliest and the trial Court shall issue N.B.W against AO to secure his presence and then commit him to the jail for serving sentence.
As a sequel, miscellaneous petitions if any pending in this appeal shall stand closed.
__________________________ U. DURGA PRASAD RAO, J Date: 05.09.2014.