Andhra Pradesh High Court - Amravati
The State Of A.P., Rep. By Inspector Of ... vs Sri Doddi Narasimha Rao on 21 November, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.980 OF 2007
Between:
State, rep. by Inspector of Police,
Anti-Corruption Bureau, Vijayawada Rang,
Guntur.
(Through the Standing Counsel-cum-Spl.P.P.
for ACB Cases). .... Appellant/Complainant.
Versus
Sri Doddi Narasimha Rao, S/o Vinayaka Rao,
Aged about 56 years, Tap Inspector,
Municipal Corporation, Guntur.
... Respondent/Accused Officer.
DATE OF JUDGMENT PRONOUNCED : 21.11.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the Judgment? Yes/No
___________________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.980 OF 2007
% 21.11.2023
# Between:
State, rep. by Inspector of Police,
Anti-Corruption Bureau, Vijayawada Rang,
Guntur.
(Through the Standing Counsel-cum-Spl.P.P.
for ACB Cases). .... Appellant/Complainant.
Versus
Sri Doddi Narasimha Rao, S/o Vinayaka Rao,
Aged about 56 years, Tap Inspector,
Municipal Corporation, Guntur.
... Respondent/Accused Officer.
! Counsel for the Appellant : Smt. A. Gayathri Reddy,
(Standing Counsel for ACB
and Special Public Prosecutor)
^ Counsel for the Respondents : Sri G. Vijaya Kumar
< Gist:
> Head Note:
? Cases referred:
(2022) SCC OnLine SC 1724
This Court made the following:
3
HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.980 OF 2007
JUDGMENT:-
Challenge in this Criminal Appeal is to the judgment in C.C.No.10 of 2004, dated 19.02.2007, on the file of Special Judge for SPE & ACB Cases, Vijayawada ("Special Judge" for short), by the unsuccessful State, represented by the Inspector of Police, Anti-Corruption Bureau ("A.C.B." in short), Vijayawada Range, Guntur.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Special Judge for the sake of convenience.
3) The State, represented by the Inspector of Police, ACB, Vijayawada Range, Guntur, filed charge sheet pertaining to Crime No.9/ACB-VJA/2002 of ACB, Vijayawada Range, Guntur, alleging the offences under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 ("P.C. Act" for short) against Accused Officer ("A.O." for short).
4) The case of the prosecution, in brief, as set out in the charge sheet as above, is as follows:
(i) The A.O. was working as Tap Inspector, Municipal Corporation, Guntur, Guntur District from 19.02.1998 to 4 29.04.2002. He is a public servant within the meaning of Section 2(c) of the P.C. Act.
(ii) One Chakka Janardhana Rao, S/o Venkateswarlu (P.W.1) is having a house in Srinivasarapet in the name of his wife. He paid Rs.4,500/- on 15.12.2001 for sanction of drinking water tap. It was sanctioned on 07.03.2002. Thereupon he met the A.O. several times for installation of tap. Then the A.O. demanded Rs.2,000/- as bribe to do the said work and as P.W.1 was not willing to pay the same, he kept quite. Ultimately, on 27.04.2002 P.W.1 met the A.O. and when he requested him to install the tap connection, the A.O. reiterated his earlier demand of Rs.2,000/- and as there was no other go, he reluctantly agreed to pay the same. However, as he was not willing to pay it, he approached the Inspector, ACB (P.W.9) and presented Ex.P.1 report. P.W.9 after observing necessary formalities, got registered the case and investigated into.
(iii) On 29.04.2002 at about 6-00 a.m., the A.O. was successfully trapped by P.W.9 when he further demanded and accepted Rs.2,000/- from P.W.1 in the presence of P.W.7 and another. When the hands of the A.O. were subjected to chemical test, the right hand fingers proved positive and on enquiry the tainted amount was voluntarily produced by him from his right side pant pocket. When the right side pant pocket was subjected 5 to test, it proved positive. Then P.W.9 seized the relevant records and investigated into.
(iv) P.W.8-The Commissioner, Municipal Corporation, Guntur, being the competent authority to remove the A.O. from service, accorded sanction to prosecute the A.O. vide proceedings, dated 03.03.2004. Hence, the charge sheet.
5) On perusal of the charge sheet, the learned Special Judge took cognizance under Sections 7 and 13(2) r/w 13(1)(d) P.C. Act against the A.O. On appearance of the A.O. before the learned Special Judge and after complying the formalities under Section 207 of the Code of Criminal Procedure ("Cr.P.C." for short), charges under Sections 7 and 13(2) r/w 13(1)(d) P.C. Act against the A.O. were framed and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.
6) In order to bring home the guilt against the A.O., the prosecution before the learned Special Judge examined P.W.1 to P.W.9 and got marked Ex.P.1 to Ex.P.13. The defence got marked Ex.D.1. Further the prosecution got marked M.O.1 to M.O.7. After closure of the evidence of the prosecution, the A.O. was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the incriminating circumstances. 6
7) The A.O. got filed his written statement contending in substance that he did not demand and he did not accept any illegal gratification from P.W.1. He is falsely implicated. After receipt of Ex.P.7-work order from P.W.6 on 09.04.2002, he inspected the house of P.W.1 which is situated 60 feet away from the main Municipal pipeline and when P.W.1 approached him, he informed that he has to lay the said pipeline on his own cost. Then P.W.1 informed him that he would not purchase any material since he has already paid necessary fee, for which he politely informed him that it is not possible for him to lay pipeline. Then P.W.1 went away angrily and thereafter when he met him on 26.04.2002 and asked the particulars of the required material for laying the pipeline of 60 feet, he gave the same in a slip and thereafter on the same day P.W.1 brought quotations from Raghavendra Enterprises regarding the cost of material to be purchased and showed it to him and asked him to purchase the same and at that time he informed him that he is not supposed to purchase the material and directed him to purchase it at his own cost. Ultimately, on 29.04.2002 when he went to the Water Tank at about 5-00 a.m. and after attending to his routine work and when he was taking tiffin at about 5-45 a.m., P.W.1 approached him and tried to offer some amount requesting him to purchase the material required for laying 60 7 feet pipeline from the main Municipal pipeline to his house for which he refused. Then P.W.1 forcibly thrust the same in his right side pant pocket and went away hurriedly in spite of his calling. In the meanwhile, A.C.B. officials came to him. He spontaneously represented that he neither demanded nor accepted any bribe amount.
8) The learned Special Judge on hearing both sides and on considering the oral as well as documentary evidence, found the A.O. not guilty of the charges framed against him and acquitted him under Section 248(1) of Cr.P.C. However, the learned Special Judge gave a finding that P.W.1 purposefully appears to have given false evidence and that it is expedient that he be prosecuted for the offence of perjury. Accordingly, the learned Special Judge made appropriate findings and directed that a complaint shall be made before the Metropolitan Magistrate or the Magistrate of First Class having jurisdiction against P.W.1 for committing the offence under Sections 193 and 211 of Indian Penal Code by exercising powers under Section 340 r/w 195(1)(b) of Cr.P.C. Felt aggrieved of the said findings recording an order of acquittal, the unsuccessful State filed the present Criminal Appeal.
9) Now, in deciding this Criminal Appeal, the points for determination are as follows:
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(1) Whether the prosecution before the learned Special Judge proved the pendency of official favour in respect of the work of P.W.1 to be done by A.O. prior to the date of trap and on the date of trap?
(2) Whether the prosecution before the leaned Special Judge proved that prior to the date of trap and on the date of trap, the A.O. demanded P.W.1 to pay bribe of Rs.2,000/- and accepted the same pursuant to such a demand and further he abused his official position by demanding and obtaining a sum of Rs.2,000/-? (3) Whether the prosecution proved the charges against the A.O. under Sections 7 and 13(2) r/w 13(1)(d) P.C. Act, beyond reasonable doubt?
(4) Whether there are any grounds to interfere with the judgment of acquittal recorded by the learned Special Judge?
POINT NOs.1 to 4:-
10) Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the Appellant/State, would contend that having alleged that the A.O. demanded bribe of Rs.2,000/- to do official favour. P.W.1 during the course of trial, twisted the facts as if such a demand was made to meet the expenses for laying pipeline and he deposed false to facilitate the defence of the A.O. The pendency of the official favour was quietly proved by the prosecution and 9 it was also a positive finding made by the learned Special Judge.
In respect of the demand of bribe prior to the date of trap and on the date of trap, though there is no substantive evidence by the prosecution but there is no dispute about the recovery of the tainted amount from the possession of the A.O. The amount was recovered from the physical possession of the A.O. and the chemical test proved to be positive. The A.O. developed a thrust theory for the first time during the course of trial without any basis from the record. When the tainted amount was recovered from the possession of the A.O., the prosecution had the benefit of presumption under Section 20 of the P.C. Act and the leaned Special Judge erroneously did not apply the same in favour of the case of the prosecution. Though P.W.2 and P.W.3 who were said to be present at the tea stall at the time of incident happened during the post-trap, turned hostile but there is no dispute about the recovery of tainted amount from the possession of the A.O. The learned Special Judge on erroneous appreciation of the evidence recorded an order of acquittal which is liable to be interfered with.
11) Sri G. Vijaya Kumar, learned counsel appearing for the respondent, would contend that there is no dispute about the pendency of the official favour before the A.O. which was 10 found in favour of prosecution by the learned Special Judge. However, it is evident from the evidence of P.W.1 that he made a false report against the A.O. twisting the facts. The A.O. did not demand any bribe from P.W.1. P.W.2 and P.W.3 did not support the case of the prosecution. The mere recovery of the tainted amount from the A.O. cannot be a ground to convict him. It is evident from the evidence of P.W.6 on procedural aspects that if anybody intends to apply tap connection, they have to clear off the house tax due if any, and to pay the donation and the estimate charges. If the individual completes all the aforesaid requirements, then only sanction order for tap connection will be issued. He would further submit that the true version of the A.O. was not incorporated in the post-trap proceedings. P.W.2 and P.W.3 who were cited as witnesses to the events happened at the tiffin stall during post-trap did not support the case of the prosecution. The A.O. had a positive case regarding the meeting of expenditure by complainant. The learned Special Judge on thorough appreciation of the evidence on record recorded an order of acquittal. The learned Special Judge subjected P.W.1 for prosecution of perjury. He would also submit that the case registered against P.W.1 in C.C.No.1111 of 2007, on the file of III Additional Chief Metropolitan Magistrate, Vijayawada, was ended in conviction ultimately. Therefore, it all 11 goes to prove that the report lodged by P.W.1 alleging something against the A.O. is not at all true. As he realized his mistake at a later point of time, he deviated from Ex.P.1. The order of an acquittal extended by the learned Special Judge was with sound reasons which cannot be interfered with.
12) Coming to the aspect that the A.O. was a public servant within the meaning of Section 2(c) of the P.C. Act and there was a valid sanction obtained by the prosecution to prosecute the A.O. is concerned, the learned counsel for the respondent did not dispute the same during the course of arguments. However, there is evidence of P.W.8, the Municipal Commissioner, Guntur coupled with Ex.P.12 that the prosecution proved the valid sanction to prosecute the A.O. for the offences alleged against him. The learned Special Judge found favour with regard to all these aspects which are not disputed during the course of arguments by the learned counsel for the respondent. However, on analyzation of the evidence of P.W.8 coupled with Ex.P.12, it is clear that the sanctioning authority having due regard to the allegations set out against the A.O. decided to accord sanction for his prosecution under Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act.
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13) Now, this Court would like to deal with whether the prosecution before the learned Special Judge proved the pendency of the official favour. There is no dispute with regard to this aspect during the course of arguments advanced by the learned counsel for the respondent. However, the evidence of P.W.1 is very clear that he applied for tap connection on 15.12.2001 by paying necessary fee of Rs.4,500/- to Guntur Municipality in the name of his wife. There is evidence of P.W.4 that the tap inspector would attend to the office generally during evening time and he will obtain the work order if any from P.W.6. Thereupon, they will issue tap connections to the applicants and after receiving the work order, tap inspector has to comply within two or three days. This portion of evidence from P.W.4 has support to the evidence of P.W.6, who testified that he issued copy of the work order on 07.03.2002. So, it is evident that the proceedings for installation of tap connection to the house of P.W.1 were issued on 07.03.2002 but it was received by the A.O. from P.W.6 on 09.04.2002. Therefore, it is very clear that as on the date of alleged demand on 27.04.2002 and further as on the date of trap, the work in respect of P.W.1 was to be attended by A.O. which was pending with him. 13
14) Now the crucial allegations in the case of the prosecution as evident from Ex.P.1 is that the A.O. demanded P.W.1 to pay a sum of Rs.2,000/- to give tap connection. As seen from the evidence of P.W.1, he turned hostile to the case of the prosecution. He admitted that he lodged Ex.P.1. His evidence is to the effect that on 27.03.2002 work order was issued for connection of his tap. The A.O. is the concerned tap inspector. The A.O. asked him when he approached to pay Rs.2,000/- towards expenses in that regarding. He refused to give that amount by saying that they are not concerned with the expenses if any in providing tap connection since they paid required amount of Rs.4,500/-. One Krishna Babu told him that if he gives a report to ACB Inspector, his work would be done, as such, Krishna Babu took him to ACB Inspector. There he made a report by adding the word bribe instead of expenses. Ex.P.1 is his report. He spoke about the events happened in pre-trap proceedings. In respect of post-trap proceedings is concerned, his evidence in substance is that when he meet the AO during post-trap about his tap connection, the A.O. asked him whether he brought the amount to meet the expenses. Then he said that he brought amount and requested the A.O. to purchase the required material. Then the A.O. stated that he has nothing to do with the purchase of material and he (P.W.1) 14 has to look after the same. When he offered the amount to the A.O., he refused to receive it by pushing with his right hand. Then he kept the amount in his right side pant pocket by saying to arrange tap connection by purchasing the required material. Then he left the place and issued pre arranged signal.
15) The above evidence of P.W.1 goes to prove that he did not support the case of the prosecution. He did not speak the allegations of demand of bribe either prior to Ex.P.1 or during post-trap proceedings. The prosecution got declared him as hostile and during cross examination he denied the case of the prosecution. During cross examination on behalf of the A.O., he admitted that when he met the A.O., he used to tell him that he has to lay the pipeline of 60 feet from the main water pipeline of Municipality by purchasing the required material and there would be an expenditure of Rs.2,000/-. The A.O. did not demand any bribe. Even he deposed answers in tune with the defence of the A.O. The evidence is lacking from P.W.1 as to the allegations of demand of bribe as on the date of trap or during the post-trap. It is also a fact that P.W.2 and P.W.3 who were cited as witnesses to speak about the events happened during post-trap between P.W.1 at the tea stall of P.W.2, did not support the case of the prosecution. On the other 15 hand, during cross examination on behalf of the A.O. P.W.2 deposed that P.W.1 offered to give some amount to the A.O. and the A.O. refused it and pushed it with his right hand and then P.W.1 forcibly thrust the amount in the right side pant pocket of the A.O. and went out immediately. The evidence of P.W.3 is also similar in this regard. The prosecution got declared them as hostile and during the course of cross examination they denied the case of the prosecution.
16) As seen from the evidence of P.W.4 apart from speaking about the pendency of the official favour, he admitted in cross examination on behalf of the A.O. that applicant has to bear the costs for laying the pipes from the Municipal pipeline to the house of the applicant and as per the sketch, the connection relating to the wife of P.W.1 is to be given in her house situated in a by-lane, but the Municipal pipeline is situated on the main road.
17) The prosecution examined P.W.5 who deposed that he owned a house at Srinivasa Raopeta, Guntur in the name of his wife. He applied for tap connection on 02.04.2002 to Guntur Municipal Corporation after payment of necessary fee and he received the work order on 04.04.2002 and after 10 days after receipt of the work order, the A.O. came and gave tap 16 connection. During cross examination he deposed that the distance between his house and the municipal main pipeline is about 11 feet. It is true that after issuance of the work order, he got laid 11 feet pipeline by purchasing the material on his own and on intimation of the same to the A.O., he gave connection immediately.
18) It appears that the prosecution examined P.W.5 to prove a fact that there was no occasion for the A.O. to demand expenses for laying pipeline, but when it comes to the cross examination of P.W.5, he deposed certain facts as if he also happened to meet the expenditure for purchasing the material to his own and he intimated to the A.O. and then only the A.O. gave connection to him immediately. In fact the answers of P.W.5 during cross examination by the A.O. were probabalizing the theory that the A.O. used to demand expenditure for laying pipeline by the applicants. The prosecution did not challenge the testimony of P.W.5 after his cross examination on behalf of the A.O., though he deposed some favourable answers in support of the case of the A.O. Therefore, the evidence of P.W.4 and P.W.5 would probabalize a theory that there were occasions where the applicants have to bear the expenditure for laying pipelines for purchase of material, etc. 17
19) P.W.6 was examined regarding the procedural aspects and evidence of P.W.6 is also regarding the mode of processing the work order, etc. However, as evident from the evidence of P.W.6 during cross examination as some of the main pipelines in some divisions were under repairs, he could not hand over the work order relating to the wife of P.W.1 to the A.O. till 09.04.2002. So, on account of the answers of P.W.6, no delay can be attributed against the A.O. What is evident from the above is that absolutely there is no substantive evidence to prove the allegations of demand of bribe against the A.O. prior to the date of trap and on the date of trap. Further the A.O. was able to probabalize the theory that the applicants have to bear the expenditure for laying pipelines by purchasing material, etc.
20) Now, the solitary circumstance on which the prosecution sought to prove the guilt against the A.O. is that the recovery of tainted amount from the possession of the A.O. It is to be noted that P.W.1 himself deposed before the learned Special Judge during chief examination itself that during post- trap he asked P.W.1 as to whether he brought the amount for meeting expenditure, but he refused to receive the said amount also and he thrust the amount in the pocket. Though the A.O. 18 did not adduce any evidence but he can as well probabalize his contention basing on the answers elicited from the mouth of P.W.1. P.W.1 shattered the case of the prosecution to any extent. He deposed that without any demand by the A.O., he kept the tainted amount in the right side pant pocket of the A.O. in the day light in the presence of several public. Though P.W.2 and P.W.3 deposed in their chief examination that P.W.1 kept the amount into the right side pant pocket of the A.O. with a request to purchase the required material, nothing could be elicited from the cross examination of P.W.2 and P.W.3. So, the defence of the A.O. has also support from the evidence of P.W.2 and P.W.3. In fact, the evidence of P.W.2 and P.W.3 corroborates the evidence of P.W.1. It is no doubt true that P.W.1 to P.W.3 turned hostile to the case of the prosecution but the defence of the A.O. is in tune with their evidence.
21) It is to be noted that there is no dispute about the recovery of tainted amount from the possession of the A.O. The chemical test to the right trouser pocket and right hand finger of the A.O. yielded positive result. The A.O. himself admitted about the recovery of tainted amount from him. But the fact remained is that for the recovery theory of the tainted amount from the right trouser pocket of the A.O., he would rely upon the 19 evidence of P.W.1 to P.W.3 to explain the manner in which the amount came into his pocket. It is to be noted that P.W.1 is not the reliable witness. There is no hard and past rule that what he alleged in Ex.P.1 is true. There were probabilities that applicants would purchase the required material for laying pipelines. There was a probability that the A.O. demanded P.W.1 to bring Rs.2,000/- for purchase of required material. It is quietly evident even from the evidence of P.W.4. Though the A.O. defence is that he refused to receive even the said amount of Rs.2,000/- towards purchase the material, but his defence is that P.W.1 thrust the amount into his trouser pocket. It is admitted by P.W.1. So, basing on the sole recovery theory in the absence of foundational facts, this Court is of the considered view that the benefit of presumption under Section 20 of the P.C. Act is not available to the case of the prosecution. In a recent decision of the Constitutional Bench of the Hon'ble Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi)1, it is clearly held that prosecution in order to have the benefit of presumption under Section 20 of the P.C. Act should prove the foundational facts. Though the prosecution can as well prove the demand by way of circumstantial evidence, but in this case there are no circumstances favouring the case of the 1 (2022) SCC OnLine SC 1724 20 prosecution to prove the allegations of demand and acceptance of bribe. In the considered view of this Court, the learned Special Judge rightly held that the prosecution had no benefit of presumption under Section 20 of the P.C. Act and even assumed for a moment, that it is there, but it shall stand negatived by virtue of the evidence of P.W.1 to P.W.3. The learned Special Judge on thorough appreciation of the evidence on record and with sound reasons extended an order of acquittal in favour of the A.O., which is not liable to be interfered with.
22) As evident from the arguments of the learned counsel for the respondent even C.C.No.1111 of 2007 on the file of III Additional Chief Metropolitan Magistrate, Vijayawada, was ended in conviction against P.W.1, but of course it appears that P.W.1 was applied with the benefits of Section 4(1) of the P.O. Act. When an appeal is pending before this Court challenging the judgment of learned Special Judge, it is not understandable as to how the said case could be disposed. According to Section 343 (2) of Cr.P.C. where it is brought to the notice of such Magistrate before whom such complaint is made, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceedings out of which the matter has arisen, he may, 21 if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided. So, whatever the situation may be but when the present appeal is pending, C.C.No.1111 of 2007 on the file of III Additional Chief Metropolitan Magistrate, Vijayawada could be disposed. It may be on account of the fact that the pendency of the present appeal was not brought to the notice of the learned III Additional Chief Metropolitan Magistrate, Vijayawada. The limited finding of this Court in this regard is that C.C.No.1111 of 2007 under perjury was ended in conviction against P.W.1. So, it is quietly evident that P.W.1 was not a reliable witness and his evidence cannot be a basis to sustain any conviction especially when he turned hostile to the case of the prosecution. Even he explained the manner in which the A.O. dealt with the tainted amount which has support from the evidence of P.W.2 and P.W.3. At any rate, the judgment of acquittal recorded by the learned Special Judge is on sound reasons which cannot be interfered with. The prosecution failed to prove that the A.O. demanded P.W.1 to pay the bribe of Rs.2,000/- prior to the date of trap and on the date of trap and by abusing his official position obtained such an amount. Hence, the appeal is liable to be dismissed.
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23) In the result, the Criminal Appeal is dismissed confirming the judgment, dated 19.02.2007 in C.C.No.10 of 2004, on the file of Special Judge for SPE & ACB Cases, Vijayawada.
24) The Registry is directed to mark the copy of this judgment to the trial Court as well as to the Court of III Additional Chief Metropolitan Magistrate, Vijayawada, where C.C.No.1111 of 2007 was disposed of on 16.06.2010, within two weeks from the date of this judgment.
25) The Registry is directed to forward the record along with copy of the judgment to the trial Court on or before 28.11.2023.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.21.11.2023.
PGR 23 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.980 OF 2007 Note:
The Registry is directed to forward the record along with copy of the judgment to the trial Court on or before 28.11.2023.
Date: 21.11.2023 L.R. copy be marked.
PGR