Andhra Pradesh High Court - Amravati
State Of Ap Rep By Its Spl Pp Hyd., For ... vs Sri Nimmakayala Vijaya Vijaya Kumar, on 9 February, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1004 OF 2007
Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau,
Nellore Range, Nellore .... Appellant
Versus
Sri Nimmakayala Vijaya @ Vijaya Kumar,
S/o.Ramanaiah, Aged 30 Years,
Formerly Deputy Surveyor,
Dagadarthi Mandal,
Nellore District. .... Respondent
DATE OF JUDGMENT PRONOUNCED : 09.02.2023
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
AVRB,J
Crl.A. No.1004/2007
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1004 OF 2007
% 09.02.2023
# Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau,
Nellore Range, Nellore .... Appellant
Versus
Sri Nimmakayala Vijaya @ Vijaya Kumar,
S/o.Ramanaiah, Aged 30 Years,
Formerly Deputy Surveyor,
Dagadarthi Mandal,
Nellore District. .... Respondent
! Counsel for the Appellant : Sri S.M.Subhani, Standing
Counsel and Special Public
Prosecutor for SPE & ACB
Cases
^ Counsel for the Respondent : Sri A. Hari Prasad Reddy
< Gist:
> Head Note:
? Cases referred:
1. 2006 (1) ALT (Crl.) 114 (SC)
2. 2013 (3) ALT (Crl.) SC 316
3. 1989 Supp (2) SCC 140
4. (1970) 3 SCC 772
5. AIR 1972 SC 468
6. MANU/UP/0302/1991
7. (2022) SCC OnLine SC 1724
This Court made the following:
3
AVRB,J
Crl.A. No.1004/2007
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1004 OF 2007
JUDGMENT:
This Criminal Appeal, under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (for short, ‗the Cr.P.C'), is filed by the State, being represented by Inspector of Police, Anti Corruption Bureau (ACB), Nellore Range, Nellore through the Standing Counsel for ACB and Special Public prosecutor questioning the judgment in Calendar Case No.7 of 2003, dated 26.02.2007, on the file of the Court of Special Judge for SPE and ACB Cases, Nellore (for short, ‗the Special Judge'), where under the learned Special Judge found the Accused Officer (AO) not guilty of the charges under Sections 7 and 13(2) R/w. 13(1)(d) of the Prevention of the Corruption Act, 1988 (for short, ‗the PC Act') and accordingly acquitted him under Section 248(1) Cr.P.C.
2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The case of the prosecution, in brief, in C.C. No.7 of 2003 pertaining to Crime No.12/ACB-NLR/2002 of ACB Nellore Range, Nellore on the file of the Court of Special Judge is as follows: 4
AVRB,J Crl.A. No.1004/2007 The Accused Officer, Nimmakayala Vijaya @ Vijaya Kumar, worked as Deputy Surveyor in the Office of Mandal Revenue Officer (MRO), Dagadarthi Mandal, Nellore District from 15.12.2000 to 16.09.2002 as such he is a public servant within the meaning of Section 2(c) of the PC Act. LW.1 - Gorantla Veeraiah Chowdary is a resident of Bitragunta Village, Bogolu Mandal, Nellore District. The said LW.1 has an extent of Ac.13.0½ cents of dry land in Survey No.1-1, Ac.0.50 cents of dry land in Survey No.1-2 and Ac.3.16 cents of land in Survey No.19-1, totally an extent of Ac.16-66½ cents and his brother G. Butchi Naidu has also an extent of Ac.16-66½ cents in the above said survey numbers. They purchased the same from one Kakuturu Bhakthavatsala Reddy and Pundla Venkata Sivamma of Allur.
They got registered the same in their favour. They obtained pattadar pass books from MRO, Dagadarthi. LW.1 - G. Veeraiah Chowdary sold an extent of Ac.5.30 cents of land in Survey No.1/1 to his brother Butchaiah Naidu. So, he, with an intention to get survey his land, submitted a representation to MRO, Dagadarthi (LW.7) on 01.09.2001 with a request to survey the land of him and his brother and to fix the boundaries. LW.7 - MRO, Dagadarthi endorsed the representation of the de-facto complainant to the AO, who is Deputy Surveyor, with instructions to attend the work. 5
AVRB,J Crl.A. No.1004/2007 LW.4 - Smt. Kamineni Annapurnamma and Nethi Lakshmi have also lands in the above said survey numbers. K. Annapurnamma also approached the then MRO, Dagadarthi and submitted a representation with a request to show the boundaries of her land. MRO instructed the then Surveyor. But, the then Surveyor did not show the boundaries and he was transferred. About 9 months prior to 15.09.2002, the AO visited the land of LW.1 at Kaminenipalem and surveyed the same but failed to give his report. LW.1, de-facto complainant approached the AO several times and asked him about the survey report. But, he did not give his report. About one week prior to 15.09.2002, LW.1 approached the AO and enquired about the survey report. Then the AO, being a public servant, demanded him to pay illegal gratification of Rs.15,000/- to do official favour. Again, on 14.09.2002 at 07:00 a.m. LW.1 approached the AO at his residence at Beeramgunta and enquired about the survey report. The AO reiterated his earlier demand. Then, LW.1 expressed his inability to pay such huge amount. Then, AO reduced the bribe as that of Rs.8,000/- and demanded him to pay the same on 16.09.2002 at 10:00 a.m. As he has no other go, he accepted to pay the same and went away. LW.1, who was not willing to pay the illegal gratification to AO, approached LW.12 - Inspector of Police, ACB, Nellore on 6 AVRB,J Crl.A. No.1004/2007 15.09.2002 and gave a report. LW.11, the in-charge Deputy Superintendent of Police, ACB, Nellore registered it as a case in Crime No.12/ACB-NLR/2002.
4. Pre trap proceedings took place in the office room of LW.11 on 16.09.2002 from 09:00 a.m. to 10.45 a.m. in the presence of LWs.2 and 3 i.e., Sri S.M. Hussainy - Forest Range Officer and D. Ramanaiah - Typist, who are the mediators. On 16.09.2002, the Deputy Superintendent of Police, ACB, Nellore along with his staff, mediators and de-facto complainant left Nellore and reached Dagadarthi at 12:40 p.m. LW.1 approached the AO in his office room, who further demanded and accepted the illegal gratification of Rs.8,000/- from him. On receipt of the pre-arranged signal, the Deputy Superintendent of Police, his staff and mediators rushed into the office room of AO and subjected both hand fingers of the AO to chemical test, which proved positive result. The AO took out the currency notes from his right side table drawer and produced the same. The numerical numbers of the notes were compared with that of the numbers, which were recorded in the pre trap proceedings, and they were found to be tallied. LW.11, the Deputy Superintendent of Police (DSP), seized the tainted amount of Rs.8,000/-. He got conducted the swab test over the right side of 7 AVRB,J Crl.A. No.1004/2007 the table drawer which came into contact with the tainted amount and the test proved positive result. He seized the representation, dated 01.09.2001, of the de-facto complainant and the rough sketch relating to survey numbers of LW.1, prepared by AO from his possession. The Government of Andhra Pradesh, accorded sanction to prosecute the AO vide G.O.Ms.No.460, Revenue (VIG.II) Department, dated 25.03.2003. So, Accused Officer is liable for punishment under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act.
5. The learned Special Judge took cognizance of the case under the above provisions of law and after appearance of the accused in pursuance of the summons and further compliance of Section 207 Cr.P.C, framed charges under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act, read over and explained the same to him in Telugu for which AO pleaded not guilty and claimed to be tried.
6. To bring home the guilt of the AO, the prosecution before the Court below, examined PWs.1 to 10 and further got marked Exs.P-1 to P-15 and MOs.1 to 7.
7. After closure of the evidence of the prosecution, the Accused Officer was examined under Section 313 Cr.P.C with reference to 8 AVRB,J Crl.A. No.1004/2007 the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same and got filed a written statement under Section 313 Cr.P.C. Though, he expressed his desire initially that he would examine the defence witnesses but later did not examine any defence witnesses.
8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the Accused Officer not guilty of the charges under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act and accordingly acquitted him under Section 248(1) Cr.P.C.
9. The State having felt aggrieved of the judgment of the Court below in C.C. No.7 of 2003, filed the present Criminal Appeal challenging the judgment of acquittal.
10. Now, in deciding this Criminal Appeal, the points that arise for consideration are as follows:
1) Whether the prosecution has proved before the Court below that the AO was a public servant within the meaning of Section 2(c) of the PC Act?9
AVRB,J Crl.A. No.1004/2007
2) Whether the prosecution has proved before the Court below that ACB obtained a valid sanction to prosecute the AO for the charges framed against him?
3) Whether the prosecution before the Court below has proved that AO demanded PW.1 to pay the bribe of Rs.15,000/- to do official favour i.e., to complete the survey report, and later reduced it to Rs.8,000/- prior to the date of trap and further AO demanded, at the time of trap, to pay the bribe amount and accepted the same?
4) Whether the prosecution has proved the charges framed against the AO beyond reasonable doubt?
11. POINT Nos.1 and 2: There is no dispute that the AO was a public servant, who was drawing salary from the account of the Government. This aspect is not at all in dispute during the course of trial. Coming to point No.2, the prosecution exhibited Ex.P-14, sanction order to prosecute the AO, before the Court below. The prosecution also examined PW.7, K.P. Harish Kumar, Section Officer, Revenue (Vigilance-II) Department, AP Secretariat, Hyderabad. Ex.P-13 is the authorization given to PW.7 by Smt. K. Chaya Lakshmi, Deputy Secretary to Government to give evidence. 10
AVRB,J Crl.A. No.1004/2007 Ultimately, the evidence of PW.7 is that the DG, ACB sought for sanction by sending final report, copy of FIR, mediator reports 1 and 2 and further the substance statements of the witnesses recorded during the course of investigation. The Assistant Section Officer, Revenue (Vigilance-II), processed the file on 15.02.2003. Later, the file was sent to Section Officer and from there it was sent to Assistant Secretary and from there to Officer on Special Duty and from there to Principal Secretary. He further testified that the file was circulated to the Minister for Revenue and Law Department and thereafter sanction order was issued under G.O.Ms.No.460, dated 25.03.2003, by Sri Priyadarshini Dass. He is working under the administrative control of Priyadarshini Dass as such he can identify the signature of him. Ex.P-14 is the sanction order. He further identified the signature of Priyadarshini Dass. He denied during the course of cross-examination that he has no acquaintance with the signatures of Priyadarshini Dass and Priyadarshini Dass without application of mind issued Ex.P-14. The Court below negatived the contention of AO in this regard. This Court has carefully looked into the evidence of PW.7, coupled with Ex.P-14. Admittedly, the Hon'ble Supreme Court in State, through Inspector of Police, AP v. K. Narasimhachary1 1 2006 (1) ALT (Crl.) 114 (SC) 11 AVRB,J Crl.A. No.1004/2007 (relied upon by the Court below), dealing with the subject matter of sanction held that the prosecution can prove a valid sanction either by producing the original sanction, which contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence alinude to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it.
12. Now, as seen from Ex.P-14, virtually the sanctioning authority looked into various allegations raised against the AO and having regard to the above decided to issue sanction. The G.O.Ms.No.460, purported to have contained the signature of Priyadarshini Dass, Principal Secretary to the Government. By any stretch of imagination, it cannot be held that it was issued without any application of mind. Insofar as the Point Nos.1 and 2 are concerned, even the AO before this Court did not challenge the said findings during the course of hearing of the Appeal. Having regard to the over all facts and circumstances and looking into the evidence of PW.7, coupled with Ex.P-14, this Court is of the considered view that the AO is a public servant within the meaning of Section 2(c) of the PC Act and the prosecution before 12 AVRB,J Crl.A. No.1004/2007 the Court below proved a valid sanction to prosecute the AO under Section 19 of the PC Act for the charges framed.
13. POINT Nos.3 and 4: Sri S.M.Subhani, learned Standing Counsel and Special Public Prosecutor for ACB, appearing for the appellant-State, would contend that the prosecution has adduced cogent and clinching evidence before the Court below by examining PW.1, the de-facto complainant and PW.3, whose lands were also supposed to be surveyed by AO and PW.1 and PW.3 supported the case of the prosecution in this regard. PW.4, the concerned Village Administrative Officer, testified the fact that AO surveyed the lands of PW.1. PW.6, the then Mandal Surveyor, spoken to the fact that at the instructions of the previous MRO, he visited the land of PW.3, inspected and informed the same to MRO and later he was transferred. This portion of the evidence of PW.6 is not relating to the request of PW.1 under Ex.P-1. Prosecution further examined PW.8, the then Deputy MRO, who testified that the then MRO forwarded the application of PW.1 - Ex.P-1, directing the Surveyor to measure the same. Ex.P-1(a) is the endorsement. Exs.P-1 and P-1(a) were seized by the Investigating Officer from the custody of AO, after successfully trapping the AO. Though Exs.P-5 to P-7 were not found place in the post trap 13 AVRB,J Crl.A. No.1004/2007 proceedings, but they are not at all fabricated documents. Even the AO relied upon certain entries in Exs.P-5 to P-7, during the course of arguments, before the Court below. The contention of AO was that Ex.P-1 was not enclosed with the challan receipt as such he did not survey the land of PW.1 as such it was not a valid document. The learned counsel would submit further that PW.1 was cross-examined in this regard but he categorically deposed that he got filed a challan through PW.3. Merely because challan receipt was not there to Ex.P-1, AO was not supposed to keep it with him especially when there was an endorsement under Ex.P- 1(a) from his superior to attend the work. According to the evidence of PW.1 challan was also paid. Though the prosecution did not bring the challan into the evidence but AO was not supposed to keep Ex.P-1 with him for years together when it was an invalid document according to him. So, the contention of the AO that Ex.P-1 was not enclosed with the challan as such he did not undertake the survey is not tenable. On the other hand, there was voluminous evidence adduced by the prosecution to prove that, in pursuance of the request under Ex.P-1, AO has undertaken survey but he did not file his survey report. Though AO was not supposed to give a copy of report directly to PW.1 but he was supposed to submit a report to MRO and it is quite natural 14 AVRB,J Crl.A. No.1004/2007 for PW.1 to enquire about the survey report. The trial Court on flimsy reasons gave findings that the official favour was not proved by the prosecution. The reasons furnished by the trial Court are very weak in nature and the said observations of the trial Court are un-warranted.
14. He would further contend that PW.2, the mediator to the post trap, and PW.9, the trap laying officer, have clearly spoken about the events in the pre trap as well as in the post trap. The tainted amount was recovered from the right side drawer of the table of the AO during the post trap. The chemical test to the both hands of AO has yielded positive result. AO pleaded before the Court below a defence that when he went into to the toilet, PW.1 entered into the room and kept the tainted amount into drawer of the table and requested him to file survey report for which he replied that unless he pays the challan, survey cannot be taken and that PW.1 informed him that he would pay the challan as such he folded his hands and then went away and in the meantime ACB officials came there. The defence of the AO before the Court below is nothing but weak, which was not probabilized in any way. PW.1 fully supported the case of the prosecution. Exs.P-1, P-9 and other documents were seized from the custody of 15 AVRB,J Crl.A. No.1004/2007 AO. The trial Court without recording valid reasons went on to acquit the accused. The learned Special Judge did not record appropriate reasons. On the other hand, he recorded flimsy reasons as if the procedure for survey was not followed. By recording reasons which are not tenable in Para No.29 of the judgment, the trial Court held that the prosecution failed to prove the case beyond reasonable doubt. The learned Special Judge did not look into the foundational facts proved by the prosecution and even did not look into the presumption as contemplated under Section 20 of the PC Act as such the judgment of acquittal recorded by the trial Court is liable to be set-aside by convicting the appellant.
15. On the other hand, Sri A. Hari Prasad Reddy, learned counsel for the respondent (AO), would contend that the learned Special Judge rightly discussed the evidence with valid reasons as to how the prosecution failed to prove that the official favour in respect of the work of PW.1 was not pending with AO as on the date of trap. He discussed the oral evidence let in by the prosecution. He took into consideration that the prosecution did not prove that Ex.P-1 was enclosed with valid challan. He took into consideration that the application, if any, of PW.3 requesting 16 AVRB,J Crl.A. No.1004/2007 the AO to undertake the survey as alleged by PW.1 in Ex.P-1 application was not proved by the prosecution. He further took into consideration the fact that the oral evidence adduced by the prosecution is not believable as AO elicited that the procedure regarding issuance of notices to VAO and Talari in asking them to attend the survey is not followed. Except the oral testimony, there was nothing to prove that Ex.P-1 application was valid and as such survey was conducted by AO in accordance with the procedure. When the AO was not capable of conducting any survey, basing on the invalid application of PW.1, it cannot he held that official favour in respect of the request of the PW.1 was pending with AO as on the date of trap. The learned Special Judge at length discussed the evidence as such held that prosecution before the Court below failed to prove that the official favour was pending with AO. He would further submit that, with regard to the allegations of demand, the defence of the AO was that he never demanded PW.1 to pay bribe of Rs.15,000/- or never reduced it because there was no question of his demand when he did not conduct any survey for want of challan and on account of the invalid application under Ex.P-1. So the question of such demand does not arise and the evidence of PW.1 is nothing but false for the reasons best known. The intention of PW.1 was to evict the 17 AVRB,J Crl.A. No.1004/2007 persons who were in possession of the lands and further he requested the AO to conduct survey, without there being any challan, as such he fabricated a theory that AO demanded bribe. With regard to the allegations, during the post trap, when AO went for toilets, PW.1 went into the room and kept the tainted amount into the right side drawer of his table and when AO noticed his presence questioned him, he requested him to file survey report for which AO replied that unless challan is paid, he would not come for survey and then PW.1 informed to him that he would pay the challan and then he catch hold of his both hands and requested to file report and went away and in the meantime ACB officials came there. He would further submit there is inconsistency with regard to the sequence of events between Ex.P-11 post trap and 164 Cr.P.C statement of PW.1 before the learned Magistrate. In 164 Cr.P.C statement, PW.1 stated that he disclosed to the trap laying officer that AO, after receiving the tainted amount, kept the same in the table drawer and then the amount was recovered in the post trap. It was mentioned in Ex.P-11 that first the amount was recovered and prior to that chemical test was conducted. The learned Special Judge rightly discussed all these discrepancies and rightly recorded an order of acquittal. He would further submit that when the learned Special 18 AVRB,J Crl.A. No.1004/2007 Judge thoroughly appreciated the evidence on record with valid reasons, Appeal filed by the State is liable to be dismissed. In support of his contention he would rely upon a decision of the Hon'ble Supreme Court in Sujit Biswas v. State of Assam2.
16. This is an Appeal against acquittal. The Hon'ble Supreme Court repeatedly held in various decisions as to how the Appeal against an acquittal has to be dealt with. The Hon'ble Supreme Court in Lalit Kumar Sharma and others v. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal3 held that the power of the appellate Court to review evidence in Appeals against acquittal is as extensive as its power in Appeals against convictions but that power is with a note of caution that appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so. Further, in Lalit Kumar Sharma (3 supra), the Hon'ble Supreme Court referred the findings in Mathai Mathewss v. State of Maharashtra4 to the effect that ―if a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate Court should not disturb that finding even if it is possible 2 2013 (3) ALT (Crl.) SC 316 3 1989 Supp (2) SCC 140 4 (1970) 3 SCC 772 19 AVRB,J Crl.A. No.1004/2007 to reach a different conclusion on the basis of the material on record‖.
17. Keeping in view of the above, I proceed to appreciate the evidence on record as to whether the prosecution was able to prove that the official favour in respect of the work of PW.1 was pending with AO as on the date of alleged demand and as on the date of alleged trap. PW.1 is the de-facto complainant. Firstly, I would like to look into the contents of Ex.P-1 application, dated 01.09.2001, addressed by PW.1 to the MRO, Dagadarthi. It runs in substance that he had lands in Survey Nos.1/1, 1/2, 19/1 in an extent of Ac.66.64 cents by holding patta numbers since several years and he is in exclusive possession and enjoyment. So, he is requesting to survey the land and to fix up the boundaries and that he paid challan.
18. The contents of Ex.P-2, report of PW.1 to the Deputy Superintendent of Police, ACB in substance is that he owned Ac.11.00 cents of land in Survey No.1/1. His younger brother Butchi Naidu is also having Ac.22.00 cents of land in his name in Survey No.19. They obtained pattadar passbooks. In Survey No.1, Kamineni Annapurnamma has also lands. Thinking that their lands were taken up by the Government and distributed among 20 AVRB,J Crl.A. No.1004/2007 the landless, he got filed a Petition before the MRO, Dagadarthi through K. Annapurnamma for the purpose of survey and paid challan also. At about 9 months back Mandal Surveyor - Vijaya Kumar came and surveyed the land and from that he is going around for his survey report and before one week he said that he will give report if he pays Rs.15,000/-. He again met the Surveyor on 14.09.2002 morning at 07:00 a.m. at his house in Bheeramgunta village and then he agreed to pay a sum of Rs.8,000/- to him. Surveyor told him that he has to bring the amount on 16.09.2002 morning at 10:00 a.m. to his office.
19. Now, coming to the evidence of PW.1, he spoken about the fact that he has lands and that he possessed Ac.66.00 cents of land along with his brother and some others but exclusively he got Ac.16.50 cents in Survey Nos.1/1, 1/2 and19/1 and that they were also issued with pattadar passbooks. He presented an application to MRO, Dagadarthi on 01.09.2001 with a request to survey the land belonging to him. Ex.P-1 is the application presented by him to the MRO. The MRO called the Vijaya Kumar i.e., the Deputy Surveyor (AO) and instructed him to survey their land and fix the boundaries. AO came to their land three months after he presented Ex.P-1 and surveyed the land. He went around 21 AVRB,J Crl.A. No.1004/2007 the AO for about 9 months requesting him to give the survey report but he did not give the report. One week prior to the presentation of the report, he requested AO to give the survey report. AO demanded him for bribe of Rs.15,000/- to give survey report . He came back. Again on 14.09.2002 at 07:00 a.m. he approached the AO at his residence at Beeramgunta village and enquired him about the survey report. Then, he demanded him to pay at least Rs.8,000/- as bribe on 16.09.2002 in the office at 10:00 a.m. for giving the survey report. As he was not willing to pay bribe to AO, on 15.09.2002, he presented a report to Inspector, ACB, Nellore. Ex.P-2 is the report presented by him, which bears his signature. He further spoken about the pre trap and post trap and his further evidence regarding the official favour is that during the post trap, he asked the AO about his survey report and AO demanded him to pay the bribe amount and then he paid the amount. Then, he asked the AO to give the survey report and AO asked him to wait outside.
20. PW.2 is the mediator to the pre trap and post trap. He testified that after the trap, AO produced Ex.P-1 - application of PW.1, Ex.P-5 - certificate of title to forest produce in three pages and Ex.P-6 is note file appended to Exs.P-5 and Ex.P-7 copy of 22 AVRB,J Crl.A. No.1004/2007 adangals in three pages and the Deputy Superintendent of Police, ACB, Nellore seized Ex.P-8 - attendance register of the MRO Office, Dagadarthi, Ex.P-9 is the survey map produced by AO and DSP seized it.
21. Coming to the evidence of PW.3, Kamineni Annapurnamma, her evidence is that in the year 2001, she applied to MRO, Dagadarthi to survey her land and to show her boundaries. Firstly, Mallikarjunudu, the then MRO came to her land but he did not survey the land. Later, PW.1 brought the AO to survey his land. It was happened in the year 2001 in the month of September. At that time, PW.1, she, LW.5 - Ramalingaiah and some other coolies were present. Survey was conducted from 10:00 a.m. to 05:00 p.m. AO has not shown the boundaries. She and PW.1 went to AO several times but he has not shown the boundaries. Later, PW.1 told her that AO was demanding bribe of Rs.16,000/- and AO ultimately requested him to give Rs.8,000/- to him. She do not remember how much amount she gave to PW.1 but she gave some amount to PW.1.
22. PW.4, the Village Administrative Officer, with regard to the so called survey of land by AO deposed that he knows PW.1, PW.3 and AO. In the year 2001, he followed the AO to survey the land of 23 AVRB,J Crl.A. No.1004/2007 PW.1 at Kaminenipalem Village in Survey No.1/1. At that time AO, he himself, PW.1 and some coolies were present. AO measured the land with the help of Field Measurement Book (FMB). After measuring the land, Surveyor has to prepare a rough sketch and has to find out the areas of the land. He do not know whether AO did like that or not. In the month of September, 2002 on one day at 11:00 or 12:00 noon, he went to MRO office for obtaining chitta. Then he came to know that ACB officials caught hold of AO. At the time of survey of the land, PW.3 was also present.
23. Turning to the evidence of PW.6, the then Mandal Surveyor, he deposed that he knows AO, who worked as Deputy Surveyor in the office of MRO, Dagadarthi. By then, LW.7 - G. Mallikarjunudu was the MRO. In the year 1999, MRO orally directed him to examine the land of PW.3 - Kamineni Annapurnamma at Velipudi in Survey No.1/1. Then, he inspected the same and found bushes and informed the same to MRO. Later, he was transferred. As no challan was paid to survey the land and the orders of the MRO were oral, he did not enter the same in F-Line Register.
24. There is evidence of PW.8, the then Deputy MRO to the effect LW.7 - G. Mallikarjunudu worked as MRO, Dagadarthi. He can identify his hand writing, signatures and initials. Ex.P-1 24 AVRB,J Crl.A. No.1004/2007 application has Ex.P-1(a) endorsement made by G. Mallikarjunudu, the then MRO. He was retired from service and his whereabouts were not known to him. Ex.P-1 is marked subject to objection.
25. Coming to the evidence of PW.9, the Trap Laying Officer, with regard to seizure of documents during the post trap from the custody of AO, he deposed that he instructed Senior Assistant of MRO Office to produce Attendance Register. He has further spoken to the fact that during post trap, after trapping the Officer, he asked the AO to produce the application and other documents of PW.1 and AO produced a file containing Exs.P-1, P-5 to P-7 and he seized it. When he did not speak about the seizure of Ex.P-9 and when the learned Special Public Prosecutor took permission from the Court to cross-examine him, and in the cross-examination he testified that at the time of trap proceedings, AO produced Ex.P-9
- survey map and it was seized under Ex.P-11. Therefore, to prove the pendency of the official favour, the evidence available before the trial Court was of above.
26. Now, turning to the testimony of PW.1, with regard to the material aspects in his cross-examination, he admitted that an amount of Rs.100/- has to be paid under challan for survey of the 25 AVRB,J Crl.A. No.1004/2007 land by the Surveyor and challan number has to be taken in the Treasury and the amount has to be paid in the SBI and further challan has to be appended to the application presented to MRO for survey of land. The Surveyor has no power to survey the land unless challan is paid. He did not pay challan in this regard but Annapurnamma paid challan. Challan was not appended to Ex.P-1. He cannot say the date when Annapurnamma paid challan. She submitted challan to MRO. She did not furnish the same to him. He cannot say the number of challan and the date when the challan was paid. In Ex.P-1, it was not mentioned that he paid challan and it was not mentioned specifically that he got paid challan through Annapurnamma. He did not state before the Deputy Superintendent of Police that he got paid the challan for Rs.100/- by Annapurnamma and handed over to MRO. He did not state so even in 161 Cr.P.C statement. He denied that no challan was paid by Annapurnamma and it was not handed over to MRO. He denied that AO did not visit their land 9 months prior to Ex.P-2 and did not conduct survey and that he created a theory that Annapurnamma paid challan and handed over the same to MRO and that his version that AO came to their land 9 months prior to Ex.P-2 and surveyed the same was to mislead the ACB officials. He further denied a suggestion by the defence counsel that AO told 26 AVRB,J Crl.A. No.1004/2007 him that land cannot be surveyed unless challan is paid when he approached. He cannot say the date on which AO demanded for bribe of Rs.15,000/- for giving survey report. He denied that even if survey is conducted he is not entitled to receive the survey report from the MRO and it is improbable for demanding bribe by AO for giving such survey report.
27. It is to be noticed that the case of PW.1, as set out in Ex.P-1, is very specific that in respect of the particular lands in Survey Nos.1/1, 1/2 and 19/1 which were in his possession since several years, he filed that application requesting to get survey and to fix up the boundaries and in this connection he paid the challan. Coming to Ex.P-2, he made a mention that thinking that his land and Annapurnamma's land were also taken by the Government, he got filed a petition before the MRO, Dagadarthi through Annapurnamma for the purpose of survey of land and paid challan also. It is in the context of the above contents in Ex.P-2 that he got filed an application through Annapurnamma and got paid the challan, the answers in cross-examination are to be appreciated. So, a conjoint reading of Ex.P-2 which can be used to corroborate the testimony of PW.1 and the evidence of PW.1 means that Annapurnamma took part her role in paying the challan meant for 27 AVRB,J Crl.A. No.1004/2007 Ex.P-1 for surveying the lands. No other inference is possible, if the answers elicited from the cross-examination of PW.1 and the contents in Ex.P-2 are looked into. When the learned counsel for the respondent/AO subjected PW.1 to probing cross-examination, he clarified that the application was of him but challan was paid by Annapurnamma. It is no doubt true that Ex.P-1 was not enclosed with any challan copy. There is no dispute that Ex.P-1 contains an endorsement labelled as Ex.P-1(a) and the said endorsement was made by the then MRO as if ―Mandal Surveyor, please attend to this‖. It is to be noticed that PW.8 is the person who was examined by the prosecution to speak about the endorsement under Ex.P-1(a) made by LW.7 - G. Mallikarjunudu, the then MRO, Dagadarthi, because he was retired from service and his whereabouts were not known to the prosecution. So, PW.8 identified the endorsement under Ex.P-1(a). The defence counsel raised an objection. In this regard, there is no dispute that then MRO endorsed Ex.P-1(a) to AO. AO did not dispute the fact that he received Ex.P-1 from the then MRO - G. Mallikarjunudu to do the needful. He categorically admitted the receipt of Ex.P-1. It is to be noticed that when the contents of Ex.P-1 runs that challan in respect of the request under Ex.P-1 was paid, the then MRO - Mallikarjunudu was supposed to look into the same. So, it means 28 AVRB,J Crl.A. No.1004/2007 that having looked into the same, he made Ex.P-1(a) endorsement to the AO. Whatever the reason may be for absence of a challan enclosed with Ex.P-1 but the fact remained is that Mallikarjunudu had knowledge of the contents of Ex.P-1 as such he endorsed it to AO and further AO had knowledge of the contents of Ex.P-1 as if challan was paid.
28. At this juncture, it is pertinent to look into the evidence of PW.3 in cross-examination. The evidence of PW.3 in chief- examination with regard to her application and consequent payment of challan to that cannot be linked with an application claimed by AO under Ex.P-2. The application which the AO referred in Ex.P-2 is no other than the application under Ex.P-1 but not the application of PW.3. Though, PW.3 testified that she made an application and paid challan and one Mallikarjunudu came there but he did not survey the land, but it had no support from the evidence of the previous Mandal Surveyor, who was examined as PW.6. According to PW.6, on oral directions only he visited the land of Annapurnamma and found bushes but he could not carry out further instructions because the instructions were of oral and there was no challan. The events spoken to by PW.3 and PW.6 have nothing to do with the application under Ex.P-1 and 29 AVRB,J Crl.A. No.1004/2007 further allegations under Ex.P-2. Ultimately, the evidence of PW.3 is that her effort to get the land surveyed failed. She deposed that PW.1 approached AO to survey the land and it was happened in the year 2001 in the month of September. At the time of survey, she, PW.1 and Ramalingaiah and some other coolies were present. During cross-examination, she deposed that she did not file any document to show that she paid the amount to survey the land. Whatever the answers that were elicited from the mouth of PW.3 in this regard were of her application only before the then MRO - Mallikarjunudu and it is not relating to Ex.P-1. She denied that her evidence that AO came to the lands and surveyed the lands but he did not show the boundaries and they went around AO is not correct. She denied that she is deposing false. So, PW.3 supported the evidence of PW.1 that in pursuance of the request made by PW.1 AO came to the land, surveyed the same but he did not fix up the boundaries or did not file the survey report.
29. PW.4 is the then Village Administrative Officer, who deposed in support of the evidence of PW.1 and PW.3. During cross- examination, he deposed that a person who wants to survey his land has to give an application and to pay prescribed fees to the MRO and MRO would issue orders to the Surveyor to survey the 30 AVRB,J Crl.A. No.1004/2007 land and then Surveyor would give notices to the VAO and the parties including the neighboring land owners before surveying the land. AO did not give any notice to him. He do not know whether AO gave any such notices to PW.1 and PW.3. He denied that no survey was conducted and that he is deposing false.
30. It is to be noticed that the answers elicited from the mouth of PW.4 that a person who wants to survey his land has to give an application and to pay prescribed fee and then MRO will issue orders to the Surveyor to survey the land would fortify the endorsement in Ex.P-1(a) where the MRO directed AO to attend the work. Ex.P-1 runs that the challan was paid. Merely because the prosecution was not able to produce the challan, AO cannot take an advantage to contend that Ex.P-1 is invalid. AO had every knowledge that the MRO being superior officer to him under whom AO used to work having looked into the contents of Ex.P-1, made an endorsement directing him to attend the work as requested by PW.1. If really, Ex.P-1 was not enclosed with a copy of challan, AO had no business to keep that application pending for about 9 or 10 months. The office of the then MRO and AO is one and the same. AO would have brought the factum of alleged non payment of challan to the then MRO immediately if really challan was not 31 AVRB,J Crl.A. No.1004/2007 paid. On the other hand, he had knowledge about the contents of Ex.P-1 and the endorsement made by the then MRO and knowing fully well, he did not return the application on the ground that it was not enclosed with any challan copy or that challan was not paid. In that view of the matter, this Court is of the considered view that there would not have been an endorsement under Ex.P-1(a) by the then MRO directing the AO to attend the work, if really challan was not paid. It is to be noticed that though PW.4 stated that to accompany the Surveyor a notice is supposed to be issued either to him or to the parties, he deposed that he does not know whether he gave notices to PW.1 and PW.3. In this regard, PW.1 and PW.3 were not cross-examined by AO as to whether they received any notices from the AO instructing them to attend the survey. So, without eliciting anything from the mouth of PW.1 and PW.3 that they did not receive any notices from the AO, he cannot pose any question to PW.4 as to whether AO issued any notices to PW.1 and PW.3 to attend the survey. In my considered view, technically, there would not have been an occasion where a VAO, who was a subordinate to the office of MRO, would decline to accompany AO even on oral request, when AO proposed to survey a particular land in the village.
32
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31. It is to be noticed that according the evidence of PW.2, the mediator, as well as PW.9, the trap laying officer, after successfully trapping the AO at the instruction of DSP, ACB, AO produced Ex.P-1 - application, Exs.P-5 to P-7 and Ex.P-9 - survey map prepared by him. It is altogether a different aspect that when PW.2 testified the seizure of the above documents, PW.9, the trap laying officer though spoken about the seizure of Exs.P-1, P-5 to P-7 but was not able to recollect to speak about Ex.P-9 and when the learned Special Public Prosecutor posed questions in cross- examination after getting due permission from the Court, he went on to depose that at the time of trap proceedings, AO produced Ex.P-9 survey map and it was also seized under Ex.P-11. It is to be noticed that AO agitated before the Court below that Ex.P-11 - post trap proceeding would only disclose seizure of Exs.P-1 and P-9 but not Exs.P-5 to P-7. Literally, the above said contention is correct. Admittedly, Ex.P-11 - post trap proceedings narrates production of Ex.P-1 - application and Ex.P-9 by AO. However, PW.2 and PW.9 deposed as if Exs.P-5 to P-7 were also produced by AO. It is to be noticed that whatever the reason may be for not mentioning the seizure of Exs.P-5 to P-7 in Ex.P-11 post trap proceedings but the fact remained is that they were available in the file made up by the Investigating Officer at the time of post 33 AVRB,J Crl.A. No.1004/2007 trap proceedings. It is not a case where AO branded Exs.P-5 to P-7 as fabricated documents. Literally, the contents of those documents were not in dispute. They were said to be copies of documents pertaining to the revenue officials. Under the facts and circumstances, the fact that PW.2 and PW.9 spoken about Exs.P-5 to P-7 as the documents which were seized along with Exs.P-1 and P-9 would not throw any suspicious circumstances over the case of the prosecution. Learned defence counsel also relied upon Exs.P-5 to P-7 during the course of arguments as evident from the judgment of the trial Court to contend that the claim made by PW.1 claiming certain extents and requesting for survey was not justifiable because he had no such extents. Virtually, the above said contention is beyond the defence of the accused. The question before the Court below was only to see as to whether official favour to be done by AO in respect of the request of PW.1 to conduct survey and to fix up the boundaries was pending or not. It is the defence of AO that Ex.P-1 application was invalid as such he did not conduct any survey. Hence, basing on the contents of Exs.P-5 to P-7 whatever the contentions advanced by AO before the Court below claiming that PW.1 had no such extent of land is devoid of merits. All this has been discussed only to show that mere non- mentioning of Exs.P-5 to P-7 literally in Ex.P-11 in the absence of 34 AVRB,J Crl.A. No.1004/2007 the contention that they were pressed into service later would not affect the case of the prosecution in any way. It is to be noticed that during the course of cross-examination of PW.1, even the AO contended that he created fictitious sale deeds in the name of him and his brother and they, basing on the fictitious sale deeds, obtained pattadar passbooks by influencing the then MRO in the year 1987. It is to be noticed that whether the lands claimed by PW.1 under the so called documents were genuine or not was not to be decided by the AO. His job was only to take necessary steps to conduct survey and to file survey report. So, it is clear that AO even questioned the authority of the then MRO in issuing pattadar passbooks in favour of PW.1, which is not proper in the circumstances of the case. It is not his case that in pursuance of the instructions of MRO he conducted the survey and PW.1 did not produce any documents for the purpose of survey and that as such he was unable to fix up the boundaries etc., It is not the defence of the AO in that passion. His simple defence is that he did not move his little finger because Ex.P-1 was invalid. It is to be noticed that the application under Ex.P-1 was made before the then MRO on 01.09.2001. On the same day, the then MRO having looked into the contents, directed the Mandal Surveyor i.e., AO to attend the task. The date of trap was 16.09.2002. So, for more 35 AVRB,J Crl.A. No.1004/2007 than one year AO kept Ex.P-1 - application in his custody. Prosecution was able to establish before the Court below that Exs.P-1 and P-9 were seized from the custody of AO during the post trap.
32. Without any factual foundation and without putting forth anything during the course of cross-examination of PW.1, PW.3 or before PW.2 - mediator and PW.9 - the Investigating Officer, a contention was advanced by the learned defence counsel before the Court below stating that admittedly there was a mistake on the part of AO in keeping Ex.P-1 - application pending with him and it was also contended that it was quite natural to keep such applications pending without any action, when it was not enclosed with challan etc., It is altogether a different aspect the Court below did not find improbable act on the part of AO in keeping such application pending and went on in making adverse comments against the case of the prosecution, which will hereafter be appreciated. So, the act of the AO in keeping Ex.P-1 - application in his custody and further keeping in his custody the survey map under Ex.P-9 in spite of the request made by PW.1 is nothing but un-reasonable. A man of reasonable prudence in such circumstances would have brought to the notice of the then MRO 36 AVRB,J Crl.A. No.1004/2007 by returning the application under Ex.P-1 seeking instructions to PW.1 to pay the challan if really it was not enclosed with any challan.
33. It is to be noticed that having looked into the contents of Ex.P-1 and after laying of trap, Investigating Officer, to decide the genuinity in the case of the prosecution, chosen to examine PW.3 and other witnesses i.e., VAO (PW.4) and the then Mandal Surveyor and further PW.8 during investigation. All this was done by the Investigating Officer to ascertain as to whether the official favour was pending with AO or not. The evidence of PW.1, PW.3, PW.4 and PW.8 is convincing and believable. In my considered view, the various circumstances referred to above and the evidence of PW.3, evidence of VAO (PW.4) and the fact that Exs.P-1 and P-9 were in the custody of AO, which were seized by the Investigating Officer during the course of trap would clinchingly prove the fact that official favour in respect of the request of PW.1 was pending with AO prior to the date of trap and further as on the date of trap. It is to be noticed that though AO was not supposed to give a copy of the survey report directly to PW.1 but he was supposed to give a comprehensive report to MRO when he was instructed to look into the request of PW.1 under specific endorsement in Ex.P-1(a). In 37 AVRB,J Crl.A. No.1004/2007 such circumstances, it is quite natural for like PW.1 or PW.3 when a Surveyor conducted the survey, to ask the surveyor to furnish the survey report. In such circumstances, the Surveyor could have intimated the matter to PW.1 and PW.3 and that he would file his report duly before the MRO and they can take copy of the report from MRO. But, this has not been done in this case.
34. This Court looked into the judgment of the trial Court to ascertain as to where the learned Special Judge erred in this regard. The findings in this regard can be seen at Para Nos.12 and 29 of the judgment. At Para No.12 of the judgment, the learned Special Judge observed that, according Ex.P-1, PW.1 mentioned that he got applied for survey through PW.3 - Annapurnamma and on that application, PW.3 paid challan. The above observation made by the learned Special Judge is nothing but erroneous. There is no mention in Ex.P-1, application of PW.1 that he made the application through PW.3 and that PW.3 paid the challan. Virtually, Ex.P-1 is the application of PW.1 in which no such mention was there. Hence, the findings of learned Special Judge in this regard are un-reasonable. Further, the learned Special Judge commented that the alleged application of PW.3 - Annapurnamma and her challan were not seized and no efforts were made by the 38 AVRB,J Crl.A. No.1004/2007 Investigating Officer to seize the application and challan. He made further observation that in Ex.P-2, report of PW.1, he did not state anything about Ex.P-1 application. It is to be noticed that Ex.P-2 is the report of PW.1 before the DSP, ACB, where he mentioned categorically that he filed the application before the MRO requesting to survey the land through Annapurnamm. It is not his allegation that Annapurnamma made the application. As this Court already pointed out the contents in Ex.P-2 are to be appreciated with reference to the answers elicited by AO during the course of cross-examination of PW.1 that Annapurnamma paid challan on his application. The learned Special Judge wholly mistook the case of PW.1 and PW.3. The case of PW.3 that previously she made the efforts to get the survey of the lands but in vain cannot be and shall not be linked up with the case of PW.1. On the premise that the Investigating Officer did not seize application of PW.3 and her challan and on the ground that Ex.P-2 did not reveal the application of PW.1 under Ex.P-1, the learned Special Judge landed himself in an error in appreciating the case of the prosecution.
35. Apart from this, according to the evidence of PW.6, on the oral instructions of the then MRO, he visited the lands of PW.3 39 AVRB,J Crl.A. No.1004/2007 and could found bushes but because no application was there of PW.3 with challan and the instructions were only oral he could not proceed further to enter the same in F-Line register. The learned Special Judge observed that F-Line Register was not seized by the Investigating Officer. The inability of PW.6 to conduct survey at the request of PW.3 has nothing to do with the request of AO under Ex.P-1 and his allegations in Ex.P-2. The learned Special Judge wholly misinterpreted the case of the prosecution and did not appreciate the case of the prosecution with reference to Ex.P-1 and the allegations under Ex.P-2 and did not comprehend the case of the prosecution by looking into the answers elicited from the mouth of PW.1 in his cross-examination and further erred to appreciate the case of the prosecution by looking into the evidence of PW.3 and PW.6 together.
36. Further at Para No.29 of the judgment, the learned Special Judge observed that, according to PW.6, procedure is not followed in conducting survey. The learned Special Judge did not look into the aspect that the defence of AO was denial simplicitor by just saying that he did not conduct any survey. The learned Special Judge did not look into the fact that PW.1 and PW.3 were not confronted by the AO as to whether they received any notices from 40 AVRB,J Crl.A. No.1004/2007 the AO requesting to attend for the survey. It is to be noticed that there is evidence of PW.2 and PW.9 showing any amount of consistency with regard to seizure of Exs.P-1 and P-9 from the custody of AO, leave apart Exs.P-5 to P-7, whose reference was not there in Ex.P-1 literally but, whose existence was there as on the date of trap. Even the defence of accused is that Ex.P-9 was not seized from the custody of AO and it did not contain any signature. This Court has no reason to disbelieve seizure of Exs.P-5 to P-7 from the custody of AO along with Ex.P-9 at the time of trap. Though Ex.P-9 did not contain any signature of AO but it is a survey sketch showing the old survey number as 1 and new Survey Nos.67, 68, 1-1 and 1-2 a total extent of Ac.81.05 cents. It is no doubt true that a document like Ex.P-9 would be in response to the request under Ex.P-1. Though AO did not sign Ex.P-9 but one can say with certainty that AO got the same in his custody by preparation pursuant to the request in Ex.P-1. Virtually, PW.2 and PW.9 have no reason to plant Ex.P-9. It is to be noticed that the learned Special Judge made a comment in Para No.29 of the judgment about Ex.P-9, that there is no evidence to prove that AO prepared Ex.P-9. The above said comment is nothing but un-reasonable, in my considered view. When it was seized from the physical custody of AO, which was categorically 41 AVRB,J Crl.A. No.1004/2007 proved by the prosecution with consistent evidence, the finding of the learned Special Judge that there is no evidence to prove that AO prepared Ex.P-9 deserves no merit. The learned Special Judge without properly appreciating the evidence on record and by recording flimsy reasons which are not tenable in the circumstances made adverse comments against the case of the prosecution. Even there are no assertive findings from the learned Special Judge that official favour in respect of the request of PW.1 was not pending with AO. He referred to various contentions raised by the defence counsel and the learned Special Public Prosecutor and at Para Nos.12 and 29 of the judgment gave certain findings commenting against the case of the prosecution, which are nothing but un-reasonable and not tenable. The learned Special Judge did not look into the aspect that AO kept Ex.P-1 in his custody for more than one year and Exs.P-1 and P-9 were seized from his custody. The learned Special Judge did not record reasons as to why the evidence of PWs.3 and 4 is liable to be disbelieved. In my considered view, the prosecution has categorically proved before the Court below that the official favour in respect of the work to be done of PW.1 was pending before AO prior to the date of trap and as on the date of trap. 42
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37. Next aspect to be considered here is as to whether the prosecution has proved before the Court below that AO demanded PW.1 to pay bribe of Rs.15,000/- to do official favour and when PW.1 met him on 14.09.2002, again he demanded and reduced the bribe to Rs.8,000/- and further on 16.09.2002 demanded and accepted an amount of Rs.8,000/- from PW.1 to do official favour. The case of the prosecution, according to Ex.P-2, is that PW.1 filed an application under Ex.P-1 requesting the MRO to conduct survey and to fix up the boundaries, which was forwarded to AO and AO came there and surveyed the land and about one week prior to Ex.P-2 when he ultimately requested Surveyor to give the report, he demanded Rs.15,000/- and again on 14.09.2002 when he met at 07:00 a.m. he reduced the bribe to Rs.8,000/- and demanded to bring it on 16.09.2002. So, felt aggrieved of the same, PW.1 lodged Ex.P-2 report with ACB officials. PW.1, as pointed out, has spoken these facts in his chief-examination. He categorically testified the presentation of Ex.P-1 on 01.09.2001 and the MRO instructed the AO to survey the land and subsequent visit made by AO to the lands three months thereafter, conducting survey and keeping the issue for about 9 months and non-filing of the report and ultimately one week prior to Ex.P-2, when he requested AO to give the survey report, he demanded 43 AVRB,J Crl.A. No.1004/2007 bribe of Rs.15,000/- and on 14.09.2002 he reduced it to Rs.8,000/- with a direction to bring the bribe on 16.09.2002. He has spoken about presentation of Ex.P-1. His evidence has corroboration from Ex.P-2.
38. He further spoken about the instructions of Deputy Superintendent of Police to come on 16.09.2002 to ACB office with Rs.8,000/-, his going to ACB office on 16.09.2002 at 09:00 a.m., giving the proposed bribe amount to ACB, conducting of pre trap proceedings by the DSP, ACB explaining the importance of phenolphthalein test and the fact that one police constable applied phenolphthalein powder to the currency notes and kept the amount in the upper left side pocket of his shirt and that he was instructed by the DSP, ACB to give the amount only on further demand by the AO.
39. He further deposed that in pursuance of the instructions, they reached the office of AO at 12:40 noon. He went into the MRO office on foot. AO was sitting in his room in a chair. He asked AO about the survey report and AO demanded him whether he brought the bribe amount and he told him that he brought Rs.8,000/-. Then, AO asked him to pay the amount. He took out the amount from his pocket, handed over to AO, who received the 44 AVRB,J Crl.A. No.1004/2007 same, counted the money and kept it in the drawer of his table. He asked the AO to give survey report. AO told him that he would prepare the fair copy of the survey report and asked him to wait outside. Then, he came out and relayed a pre-arranged signal to ACB Officials. He further spoken about the rushing of raid party to the MRO office and asking him to wait outside. After some time, he was called inside the room and on questioned by DSP, ACB, he disclosed as to what happened. His statement was recorded by the DSP, ACB and his statement was also recorded by the Magistrate, Nellore. The statement shown to him contains his signature.
40. In his cross-examination, he denied that as on the date of trap at 12:30 noon AO went to toilet to attend natural calls and at that time he went into the room of AO and planted the tainted amount in his table drawer in his absence and AO when coming from the toilet and on seeing him at his table, questioned him the purpose of his visit and that he requested the AO to survey his lands and AO replied that unless challan is paid, he would not go for survey and he informed the AO that he would pay the challan and requested the AO to conduct survey by catching hold of his both hands and then he came out and gave a pre-arranged signal. 45
AVRB,J Crl.A. No.1004/2007 He denied that he created false documents and implicated AO and AO never demanded and accepted the bribe.
41. As seen from the evidence of PW.2 and PW.9, the mediator and the trap laying officer, their evidence is consistent with regard to the events that took place during the post trap. According to them, on receipt of pre-arranged signal from PW.1, they rushed into the room of AO and then at the instructions of trap laying officer constable prepared sodium carbonate solution, which was prepared in two glasses and the right hand of AO was dipped into one glass and it changed into pink colour. Later, left hand of AO was dipped into another glass and it changed into light pink colour. The solutions were transferred into two separate bottles and they were preserved. MOs.3 and 4 are the same. MO.5 is the wash of cotton swab relating to the positive result of testing of the drawer of the table. It is their further evidence that when the ACB DSP enquired AO as to where he kept the amount received from PW.1, he opened the drawer of his table and produced the amount. The particulars of the currency numbers which were noted in Ex.P-4 - pre trap proceedings were tallied with as such they were mentioned in Ex.P-11 post trap proceedings. So, the prosecution by examining PW.2 and PW.9 further proved that AO 46 AVRB,J Crl.A. No.1004/2007 dealt with the tainted amount with his both hands and the amount was recovered from the drawer of his table. It is categorically established by the prosecution.
42. Insofar as the evidence of PW.1 is concerned with regard to the allegations against AO that he demanded bribe of Rs.15,000/-, later reduced it to Rs.8,000/- on 14.09.2002 with instructions to bring the amount on 16.09.2002 further with regard to the demand made by AO during post trap on 16.09.2002, it is quietly consistent with that of Exs.P-1, P-2 and post trap proceedings. Now it is a matter of appreciation as to whether the evidence of PW.1 is believable. He was subjected to probing cross-examination throughout. So, the defence of AO that when he went into toilets, PW.1 planted the amount in the right side table drawer is not there in Ex.P-11 post trap proceedings. The purported version of AO in Ex.P-11 post trap proceedings when the DSP questioned him as to what happened is that the complainant sat before him and offered amount which was kept in the right side of the table drawer. This is the so called version of AO in the post trap. The defence of AO is that the DSP and the mediator did not record the true version of AO in the post trap proceedings as suggested to PW.1 and as canvassed by AO during the course of trial. It is very 47 AVRB,J Crl.A. No.1004/2007 difficult to accept such a contention in the light of the facts and circumstances.
43. PW.5, who is Talari in MRO office, Dagadarthi, deposed that on 16.09.2002 he went to the office at 09:30 a.m. Then their Typist Meena Kumar and Senior Assistant - Giri and MRO - Bhaskar Reddy came to office one after another. At 11:00 a.m. their MRO went to Kavali RDO office with a file. At about 11.45 a.m. PW.1 came to the office and went to the room of AO. Within 10 or 15 minutes, PW.1 came out of that room. Later, ACB officials went to the AO. He came to know that ACB officials came there. Then, he went to the staff room and informed them about the said fact. He came to know that ACB officials caught hold of AO while he was receiving an amount of Rs.8,000/- from PW.1 as bribe. During cross-examination, he deposed that he is working as Talari under Village Secretary of Dagadarthi. He has no duty at MRO office on the date of trap. He did not observe any others going into the room of Surveyor after PW.1 went into the room of AO and who came out of that room prior to PW.1 came out of that room. He did not observe whether AO was present in his room by the time PW.1 went into the room.
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44. It is to be noticed that though PW.5 appears to be a chance witness but looking into the cross-examination part of his evidence, he testified that on that particular date at a particular point of time MRO went to Kavali in connection with office work etc., Hence, his presence cannot be doubted. As seen from Ex.P-10
- rough sketch relating to the office of MRO and the location of room, there is no dispute that in the room of AO, there was no toilet. So, the toilet is located at a far off place at outside. It is the defence of AO that when he went to the toilet, PW.1 entered into his room and planted the amount in his right side table drawer. According to PW.5, he saw PW.1 going into the room of AO and his subsequent coming and thereafter arrival of the ACB officials. Nothing is elicited from the mouth of PW.5 in cross-examination as to whether that he saw AO going into his room after PW.1 went into the room of AO. So, the defence of AO which was put forth before PW.1 is quietly denied.
45. This Court has to look into as to whether there is anything on record to probabilize the defence of AO. It is no doubt true that the standard of proof with which the AO has to probabilize his defence is only by preponderance of probabilities. It is to be noticed that AO suggested to PW.1 that he insisted AO to make 49 AVRB,J Crl.A. No.1004/2007 survey without paying challan of Rs.100/-. It is rather surprising to note that throughout for one year PW.1 was refusing to pay challan payable under Ex.P-1, though AO was insisting him to do so. It was rather improbable on the part of AO to keep Ex.P-1 with him, if Ex.P-1 was really defective. So, it shows the conduct of AO. In the light of the above, this Court is of the considered view that the defence of AO that when he asked PW.1 to pay the challan amount, he replied that he would pay the challan, caught hold of his hands and then went away and after that ACB officials came there is not at all tenable. The theory of AO that PW.1 caught hold of his both hands is only invented to explain certain circumstances which went against AO with regard to the chemical test. As seen from the judgment of the trial Court, the defence theory is two fold; one is that as PW.1 caught hold of both hands of AO phenolphthalein powder came into contact with the hands of AO from the hands of PW.1 as such chemical test yielded positive result. Such a contention is not tenable in my considered view. Another theory is that, when Police Constable after the trap caught hold of the hands of AO phenolphthalein powder came into contact with him. It is to be noticed that according to Ex.P-4, pre trap proceedings, PC No.1717 undertaken dealing with of phenolphthalein powder test in pre trap proceedings and the DSP 50 AVRB,J Crl.A. No.1004/2007 directed the said PC to remain in the office after completion of pre trap proceedings. It is not a case that the said Police constable accompanied the DSP to the post trap events. So, the constable who caught hold of the hands of AO after entering into the office is not the constable who experimented applying of the phenolphthalein power to the currency notes. On the other hand, AO got elicited from the mouth of PW.9 that the said constable i.e., PC No.1717 was deputed to hand over the FIR to the learned Special Judge after registration of the FIR. So, the second theory is also not tenable.
46. This Court has further looked into the judgment of the trial Court carefully. The defence counsel raised a contention that in the 164 Cr.P.C statement of PW.1 he stated before the jurisdictional Magistrate that after the trap, DSP questioned PW.1 as to whether he gave the amount and then he answered that he gave the amount and AO kept the amount in the table drawer and the DSP seized the amount in the presence of the mediators and thereafter he got conducted the chemical test which yielded positive result. Then, he was asked to wait outside and after some time he was called and asked as to whether he paid the bribe and then he replied that he paid the bribe. The learned Special Judge 51 AVRB,J Crl.A. No.1004/2007 referred the above portion of 164 Cr.P.C statement. In this regard, the finding of the learned Special Judge is that in 164 Cr.P.C statement, PW.1 stated that he told to DSP that he paid the amount to the AO and the amount was kept by the AO in his table drawer and thereafter amount was seized and test was conducted. The learned Special Judge made an observation that the version of PW.1 as above in 164 Cr.P.C statement is against the sequence of the case of the prosecution.
47. It is a case where 164 Cr.P.C statement of PW.1 was referred to PW.1 during chief-examination and he identified his signature. The statement of PW.1 under Section 164 Cr.P.C was not marked as exhibit before the Court below. It is settled law that statement of a witness during the investigation can be referred to the witness for the purpose of contradiction under Section 145 of Indian Evidence Act. According to Section 145 of Indian Evidence Act, a witness may be cross-examined as to previous statement made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved. It further contemplates that if it is intended to contradict him by writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the 52 AVRB,J Crl.A. No.1004/2007 purpose of contradicting him. The Hon'ble Supreme Court in Ram Kishan Singh v. Harmit Kaur and others5 held that a statement under Section 164 Cr.P.C is not substantive evidence. It can be used to corroborate the statement of a witness and it can be used to contradict a witness.
48. Coming to the present case on hand, it is a case where the procedure under Section 145 of the Indian Evidence Act was not at all adopted by the learned defence counsel before the Court below to invite the attention of PW.1 into relevant parts of his statement under 164 Cr.P.C which comes in conflict or which is contra to the evidence of PW.1 relating to the sequence of events. Even otherwise, the so called version as above is only with reference to the sequence. In my considered view, the learned Special Judge ought not to have accepted the defence of the AO when virtually PW.1 was not cross-examined in view of the procedure contemplated under Section 145 of the Indian Evidence Act. Leave apart this aspect, the learned Special Judge referred the contention of AO that as there is a dispute between the Government and the AO with regard to the land in S.No.1/1, PW.1 demanded him to conduct survey without paying challan and as 5 AIR 1972 SC 468 53 AVRB,J Crl.A. No.1004/2007 he refused to do so, PW.1 implicated him in this case. The further finding of the learned Special Judge is that the contents of 164 Cr.P.C statement of PW.1 also supported the version of AO that during his absence from the seat, PW.1 entered into his room and planted the money into his right side table drawer. It is rather surprising to note that without any basis, whatsoever, literally, from 164 Cr.P.C statement, the learned Special Judge gave such finding which is not tenable, in my considered view. The said findings of the learned Special Judge are nothing but un- reasonable. He recorded flimsy reasons that there are spelling mistakes in Ex.P.11, which would not have been there if PW.2 voluntarily prepared Ex.P-11 which is not tenable in my considered view.
49. The Hon'ble Supreme Court in Ram Lakhan Sheo Charan and others v. State of UP6 categorically held that the statements under Section 164 Cr.P.C. can only be used to corroborate and contradict the statement made under Sections 145 and 157 of the Indian Evidence Act and they cannot be used as a substantive piece of evidence. In the aforesaid case, when the learned Sessions Judge read the statement under Section 164 Cr.P.C in convicting 6 MANU/UP/0302/1991 54 AVRB,J Crl.A. No.1004/2007 the accused, the Hon'ble Supreme Court found fault with the same.
50. Under the circumstances, this Court is of the considered view that the observations of the learned Special Judge that the contents of 164 Cr.P.C statement of PW.1 supported the version of AO as if during his absence from the seat, PW.1 entered into his room and planted the money into right side table drawer is nothing but reading the statements in substantive evidence. Further there was no cross-examination inviting the attention of PW.1 to the relevant contents under Section 145 of the Indian Evidence Act. Apart from this, absolutely, there is no such whisper as if AO planted the amount in the right side table drawer of PW.1 in 164 Cr.P.C portion of statement of PW.1 which was extracted by the learned Special Judge at the end of Para No.21 at Page No.20 of the judgment of the Court below. Hence, the above findings made by the learned Special Judge are not on any basis.
51. The fact remained is that AO dealt with the tainted amount with his both hands and under the facts and circumstances the evidence adduced by the prosecution in this regard is totally believable. AO, in my considered view, miserably failed to probabilize his defence that in his absence PW.1 planted the 55 AVRB,J Crl.A. No.1004/2007 amount in the table drawer and later PW.1 caught hold of his hands and requested him to furnish the survey report and went away.
52. Turning to the decision cited by learned counsel for the respondent/accused in Sujit Biswas (2nd supra), the Hon'ble Supreme Court dealing with the presumption of innocence held that every accused is presumed to be innocent unless the guilt is proved. The Courts must be on guard to see that merely on the application of the presumption the same may not lead to any injustice or mistaken conviction especially under the statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. The Hon'ble Supreme Court further held that such a presumption can also be raised only when certain foundational facts are established by the prosecution.
53. Coming to the case on hand, in the light of the detailed reasons furnished supra, prosecution has proved the foundational facts under the circumstances. Hence, by relying upon the above said decision, the respondent/accused cannot succeed in this Appeal.
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54. In my considered view, the prosecution has categorically proved the foundational facts as alleged in Ex.P-2 with consistent evidence before the Court below. Now, a presumption under Section 20 of the PC Act would arise in favour of the prosecution. Section 20 of the PC Act runs as follows:
―20. Presumption where public servant accepts gratification other than legal remuneration --
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-
section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is 57 AVRB,J Crl.A. No.1004/2007 mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.‖
55. The Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)7, when the issue was referred to a Constitutional Bench, gave series of clarifications dealing with Sections 7, 13(1)(d)(i) R/w.13(2) and 20 of the PC Act. One of such directions, which may be made applicable to this case is that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine-qua-non in order to establish the guilt of the accused public servant under Sections 7, 13(1)(d)(i) and (ii) of the PC Act. The presumption of fact with regard to demand and acceptance or obtainment of an illegal gratification may be made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of material on record, the Court has the discretion to raise a presumption of fact while considering whether 7 (2022) SCC OnLine SC 1724 58 AVRB,J Crl.A. No.1004/2007 the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. The Hon'ble Supreme Court further held that insofar as Section 7 of the PC Act is concerned, on the proof of the fact in issue, Section 20 mandates the Court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in Section 7 of the PC Act. The said presumption has to be raised by the Court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 of the PC Act does not apply to Sections 13(1)(d)(i) and
(ii) of the PC Act.
56. In view of the above, it is no doubt true that the presumption under Section 20 of the PC Act has application to the charge under Section 7 of the PC Act. As pointed out by this Court, the prosecution has categorically established the pendency of the official favour of PW.1 before the AO as on the date of trap and prior to the date of trap and the initial demand made by AO to pay bribe of Rs.15,000/- and subsequent reduction of the same to Rs.8,000/- on 14.09.2002 and further demand of the same on 16.09.2002 and consequent payment made by PW.1 during the 59 AVRB,J Crl.A. No.1004/2007 trap and recovery of the same during the post trap. In my considered view, the case of the prosecution is further strengthened by virtue of presumption under Section 20 of the PC Act that AO accepted the said amount for doing official favour. The AO miserably failed to probabilize his defence theory. So, the Accused Officer failed to prove contrary.
57. Another charge is under Section 13(1)(d) R/w.13(2) of the PC Act. The prosecution has categorically established that AO obtained undue advantage by demanding. PW.1 to pay bribe of Rs.8,000/- and consequently accepting the same as such the facts established by the prosecution further proved the charge under Section 13(1)(d) R/w.13(2) of the PC Act. In my considered view, the learned Special Judge did not appreciate the evidence in proper prospective and erroneously held that the prosecution failed to prove the charges against the accused beyond reasonable doubt and the judgment of the trial Court in this regard is nothing but erroneous and it is not sustainable under law and facts. Hence, I hold that the prosecution before the Court below categorically established with consistent evidence the essential ingredients of Sections 7 and 13(1)(d) R/w.13(2) of the PC Act and proved the charges against AO beyond reasonable doubt as such 60 AVRB,J Crl.A. No.1004/2007 the judgment of the learned Special Judge in C.C. No.7 of 2003, dated 26.02.2007, is liable to be set-aside by convicting the accused.
58. In the result, the Criminal Appeal is allowed by setting-aside the judgment in C.C. No.7 of 2003, dated 26.02.2007, on the file of the Court of Special Judge for SPE & ACB cases, Nellore thereby convicting the respondent/accused under section 248(2) Cr.P.C. The respondent/accused is sentenced to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.10,000/- in default to suffer Simple Imprisonment for six (6) months for the charge under Section 7 of the PC Act and he is further sentenced to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.10,000/- in default to suffer Simple Imprisonment for six (6) months for the offence under Section 13(2) R/w. Section 13(1)(d) of the PC Act. Both the sentences imposed above shall run concurrently. MO.6, currency notes of Rs.8,000/-, is ordered to be returned to PW.1 and MOs.1 to 5 and 7 are ordered to be destroyed after appeal time is over, if available before the Court below.
59. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the 61 AVRB,J Crl.A. No.1004/2007 Court below and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the respondent/accused in Calendar Case No.7 of 2003, dated 26.02.2007, by issuing Non Bailable Warrant against the respondent/accused and to report compliance to this Court. Registry is directed to dispatch a copy of this judgment along with the lower Court record, if any, to the Court below on or before 15.02.2023 in the name of the Presiding Officer concerned. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. A copy of this judgment shall also be forwarded to the Head of the Department of AO for information and further action, if any.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date:09.02.2023 DSH