Telangana High Court
K.Shankar vs The State Of A.P., Acb, Karimnagar on 20 June, 2023
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.463 OF 2007
Between:
K. Shankar ... Appellant
And
State ACB rep by Inspector of Police
Anti Corruption Bureau,
Karimnagar Range,
Karimnagar. ... Respondent
DATE OF JUDGMENT PRONOUNCED: 20.06.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the Yes/No
Judgment?
__________________
2
K.SURENDER,
J
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No. 463 of 2007
% Dated 20.06.2023
# K. Shankar ... Appellant
And
$ State ACB rep by Inspector of Police
Anti Corruption Bureau,
Karimnagar Range,
Karimnagar. ...
Respondent
! Counsel for the Petitioner: Sri E. Venkat Reddy
^ Counsel for the Respondents: Sri Sridhar Chikyala
(SC SPL Public Prosecutor for ACB)
>HEAD NOTE:
? Cases referred
1.2022 SCC Online SC 213
2.2022 LiveLaw (SC) 1029
3. Appeal (Crl.)719 of 1995, dated 12.12.2000
4. (2004) 3Supreme Court Cases 753
3
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.463 of 2007
JUDGMENT:
1. The appellant is aggrieved by the conviction under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sentenced to one year rigorous imprisonment and to pay fine of Rs.2,000/- under each count vide judgment in C.C.No.23 of 2021 dated 13.04.2007 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Courts, Hyderabad, present appeal is filed.
2. Briefly, the case of the prosecution is that on 23.05.1999, P.Ws.5 and 6, who are the officials of A.P.Transco visited the house of P.W.1 and inspected the service connection bearing No.1129 and it was found that P.W.1 was extracting energy by-passing the meter by providing a loop wire from the incoming phase of the meter to cut out-going to the terminal. Since it was a case of pilferage of energy, an inspection note was prepared and handed over to the appellant for proceeding further by the competent authority. P.W.1 enquired about the 4 said proceedings and he was asked to meet the appellant. P.W.1 met the appellant on 14.06.1999 and enquired about the case. The appellant allegedly informed that he has to pay an amount of Rs.18,000/- towards fine. P.W.1 pleaded with the appellant and the appellant demanded an amount of Rs.5,000/- to be paid as bribe to extend official favour of not initiating action. On repeated requests made by P.w.1, the bribe amount was reduced to Rs.3,000/-. The said amount was asked to be paid on 21.06.1999. P.W.1 approached ACB office on 20.06.1999 and lodged the complaint at 10.00 a.m with the DSP-P.W.9.
3. P.W.9 instructed P.W.1 to come on the next day. After verification of the antecedents of the appellant and genuineness of the complaint, permission was sought and crime was registered on 21.06.1999 and on the same day i.e., P.W.3 and another government officials were asked to act as mediators to the trap to be laid on the basis of the complaint of P.W.1. Ex.P9 is the complaint drafted by P.W.2 and given by P.W.1 on 20.06.1999. Having verified the contents, the 5 mediator/P.W.3 drafted the proceedings Ex.P20. Having concluded the preliminary proceedings in the office, around 11.00 a.m, the trap party went to the office of the appellant situated in Karimnagar on two wheelers. P.W.2 was asked by P.W.9/DSP to accompany P.W.1 and inform about the happenings between P.W.1 and the appellant. Both P.Ws.1 and 2 entered into the office. At the same time, P.W.2 gave a pre-arranged signal intimating the acceptance of bribe by the appellant in the snacks bar. The trap party entered into the snacks bar in the office premises. Sodium carbonate solution was prepared in two glasses and the appellant was asked to rinse both his hands and also fingers separately. Both the solutions turned positive. On questioning by P.w.9, the bribe amount was handed over to the trap party from his shirt pocket. The said amount was seized and the proceedings were concluded in the office premises at 2.15 p.m. Ex.P20 is the post trap proceedings.
4. The investigation was handed over to P.W.11/Inspector, who completed investigation and filed charge sheet for the 6 offences under Section 7 and 13(1)(d) r/w Section 13(2) of the Act.
5. Learned Special Judge examined P.Ws.P1 to P11 and marked Exs.P1 to P28 on behalf of the prosecution. D.W.1 was examined on behalf of the appellant and Exs.D1 and D2 were marked.
6. Learned counsel appearing for the appellant would submit that both the complainant and P.W.2/accompanying witness turned hostile to the prosecution case and also stated that the amount was thrust into the pocket of the appellant. Further, the prosecution failed to prove the aspect of demand since P.W.1 has disowned the complaint and the contents of complaint Ex.P9 were not proved. Both P.Ws.1 and 2 denied any kind of demand by the appellant, as such, the appellant is entitled to be acquitted of the charge. He relied on the judgment of Hon'ble Supreme Court in the cases of; i) B.Jayaraj v. State of A.P in Criminal Appeal No.696 of 2014; 7
ii) K.Shanthamma v. State of Telangana1 and argued that in the absence of proof of demand, the prosecution case has to fail. since P.Ws.1 and 2 did not support the case of the prosecution, on the basis of the judgments rendered by the Hon'ble Supreme Court, the appellant has to be acquitted.
7. On the other hand, learned Special Counsel appearing for ACB would submit that recovery of the bribe amount was from the pocket of the appellant at his instance. In fact, the circumstances in the case that (i) there was an inspection in the house of P.W.1 by PW5 and PW6 (ii) they found pilferage and a note was prepared, indicate that there was demand and acceptance as the appellant was the person to initiate action against P.W.1. Since the appellant was the person in-charge to prosecute P.W.1, official favour is evident. The inspection note of P.W.1 with regard to pilferage of energy was prepared by P.Ws.5 and 5 was with the appellant, as such, both the circumstances i.e., pending work and also recovery of bribe amount unerringly point towards appellant with regard to 1 2022 SCC OnLine SC 213 8 demand and acceptance of bribe by the appellant. In the said circumstances, presumption is raised and the appellant has failed to discharge his burden. In support of his contentions, he relied on the judgments of Hon'ble Supreme Court in the case of Neeraj Dutta v. State (Government of NCT of Delhi)2 and argued that hostility of the complainant cannot be made basis to record acquittal and the Court can rely upon the other evidence adduced by the prosecution to infer demand of bribe. He also relied on the judgment of Hon'ble Supreme Court in the case of N.Narsinga Rao v. State of Andhra Pradesh3 and argued that the presumption can be drawn on the basis of the amount being recovered from the accused. He also relied on the judgment of Hon'ble Supreme Court in the case of T.Shankar Prasad v. State of A.P4 wherein the Hon'ble Supreme Court held that presumption under Section 20 of the 2 2022 LiveLaw (SC) 1029 3 Appeal (Crl.)719 of 1995, dated 12.12.2000 4 (2004) 3 Supreme Court Cases 753 9 Act is a legal presumption. However, the said presumption is rebuttal by proof and not by mere explanation.
8. The de facto complainant/P.W.1 and also P.W.1 accompanying witness/P.W.2 have turned hostile to the prosecution case and totally denied that any demand was made by the appellant. In the said back ground, if the other evidence adduced by the prosecution is convincing regarding demand and acceptance of bribe, the same can be relied upon to record conviction.
9. In the present case, P.Ws.5 and 6 were persons, according to the prosecution, who inspected the premises of P.W.1 and prepared an inspection note and handed over it to the appellant. However, both P.Ws.5 and 6 turned hostile to the prosecution case and stated that the said note was prepared and handed over to the Assistant Divisional Engineer. Both P.Ws.5 and 6 were declared hostile and cross- examined by the public prosecutor. However, nothing was elicited in the cross-examination to say that the proceedings were in fact pending with the appellant. At this juncture, it is 10 relevant to note the cross-examination of DSP, ACB, which reads as follows:
"It is true that pilferage of power is an offence. As seen from contents of Ex.P9. P.W.1 alleged to have committed theft of energy. It is true that ADE was competent to impose fine for committing theft of energy. It is true that AO was sub-engineer at that time and he was not competent to impose any fine on the person who commits theft of energy. AO had no power to write off any such fine/penalty."
10. As seen from the said statement made by DSP in the Court, the appellant was not competent to impose any fine and had no power to write off any such fine. It was the ADE who was competent to impose fine. In the back ground of the hostility of the official witnesses P.Ws.5 and 6 and also the de facto complainant/P.W.1 and P.W.2, there is no other evidence to substantiate that the appellant was in authority and demanded amount from P.W.1.
11. In the absence of proof of demand and also that any official work was pending with the appellant, mere recovery of the amount at the instance of appellant cannot be made basis to convict him. P.W.1 stated that he has thrust the amount into the pocket of the appellant. The same is the evidence of 11 P.W.2. In the said circumstances, when there is no evidence as to what transpired in between P.Ws.1 and 2 and the appellant apart from the evidence of P.Ws.1 and 2 and further there being no corroboration by any of the official witness to state that it was the appellant with whom the work of P.W.1 was pending or the person responsible to initiate proceedings against P.W.1, benefit of doubt has to be extended to the appellant.
12. Accordingly Criminal Appeal is allowed by setting aside impugned judgment of learned Special Judge in CC No.23 of 2001 dated 13.04.2007. Since the appellant is on bail, his bail bonds shall stand discharged. Consequently, miscellaneous applications, if any pending, shall stand closed.
________________ K.SURENDER, J Date: 20.06.2023 kvs 12 HONOURABLE SRI JUSTICE K.SURENDER Criminal Appeal No.463 of 2007 Date:20.06.2023 kvs