Andhra Pradesh High Court - Amravati
State Of Ap Rep By Its Spl Pp Hyd., For ... vs Dr. Gurram Krishna Rao, on 26 April, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1240 OF 2007
JUDGMENT:
This Criminal Appeal, under Section 378(3) and (1) 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, Prakasam District, Ongole questioning the judgment in Calendar Case No.9 of 2002, dated 16.02.2006, on the file of the Court of Special Judge for SPE and ACB Cases, Nellore (for short, 'the learned Special Judge'), where under the learned Special Judge acquitted the Accused Officer 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').
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 State, represented by Inspector of Police, Nellore Range, Prakasam District, Ongole filed the charge sheet in Crime No.19/ACB-NPK/2000 of ACB alleging the offences under Sections 7 and 13(2) R/w. 13(1)(d) of the PC Act. The case of the 2 AVRB,J Crl.A. No.1240/2007 prosecution, in brief, according to the charge sheet averments, is as follows:
Gurram Krishna Rao (AO), S/o. Subba Rao, worked as Civil Assistant Surgeon, Mandal Primary Health Centre, Tripuranthakam, Prakasam District from 05.07.1996 to 13.02.2001. He is a 'public servant' within the meaning of Section 2(c) of the PC Act. Ganta Srinivasa Rao - LW.1, S/o.
Venkateswarlu, is a resident of Tripuranthakam and driver of Jeep bearing No.APC 7546, which was in the name of his father. The District Medical and Health Officer (DMHO), Ongole issued proceedings vide Rc.No.133/G1/1999, dated 10.02.1999, instructing certain Primary Health Centers to hire vehicles under State Population Policy. The Primary Health Centre (PHC), Tripuranthakam was permitted to hire a private vehicle for the mutual usage of PHCs of Tripuranthakam, Annasamudram, Dhupadu and Pullacheruvu and the Medical Officer, PHC, Tripuranthakam is placed as the Monitoring Officer to depute the vehicle to other PHCs. The Medical Officer, PHC, Tripuranthakam, took the jeep bearing No.APC 7546 belonging to G. Srinivasa Rao (LW.1) on hire at the rate of Rs.7,500/- per month. The Government has to spend the fuel charges for the hired vehicle. Later, orders were issued to hire the vehicles at the rate of 3 AVRB,J Crl.A. No.1240/2007 Rs.9,000/- p.m. including fuel charges. AO took the vehicle of LW.1 on hire from April, 1999. The hire charges for the period from April, 1999 to September, 1999 were paid to LW.1 at the rate of Rs.7,500/- p.m. by AO. He was also paid Rs.36,000/- vide D.D. No.880896, dated 09.02.2000, towards hire charges from October, 1999 to January, 2000 at the rate of Rs.9,000/- p.m. The jeep of LW.1 was used by the AO and others up to the middle of August, 2000 and LW.1 has to receive hire charges from February to middle of August, 2000. The AO sent a requisition to DMHO, Ongole on 09.11.2000 to release the budget for the months of February to August, 2000 amounting to Rs.63,000/-. One week prior to 30.11.2000, G. Srinivasa Rao (LW.1) approached AO and requested him for payment of hire charges of his jeep. AO informed him that bills for February and March, 2000 were already prepared and remaining bills up to August, 2000 along with the log reports were yet to be prepared and he would prepare the log reports and arrange for payment, if he was paid Rs.20,000/- bribe. He informed to LW.1 that he should pay at least Rs.10,000/- as advance and to pay the rest of the amount after receipt of payment. LW.1 pleaded his inability to do so. On 30.11.2000 at 11:00 a.m. he approached the AO at PHC, Tripuranthakam and requested him to make arrangements for 4 AVRB,J Crl.A. No.1240/2007 payment of jeep hire charges. AO informed him to pay at least Rs.5,000/- as advance and to pay the remaining bribe of Rs.15,000/- after receiving payment. As there was no other go, he accepted the same and went away. As he was not willing to pay the bribe amount, he approached the Inspector of Police, ACB, Ongole and presented a report against AO. LW.15, Inspector of Police, caused preliminary enquiries about the antecedents of LW.1 and AO. DSP, ACB, Nellore - LW.14, registered the report as the aforesaid Crime and took up investigation. He conducted pre- trap proceedings in the office of Inspector of ACB, Ongole on 02.12.2000 between 06:00 a.m. to 07:30 a.m. in the presence of LWs.11 and 12, mediators. During post-trap proceedings, they reached to the office of AO at 01:00 p.m. on 02.12.2000. LW.1 went to Mandal PHC by walk and learnt that AO was out of station and he would return in the evening. He informed the same to DSP, ACB, Nellore. DSP, ACB, Nellore instructed him to go to the residence of AO at Tripuranthakam and wait for his arrival. Accordingly, LW.1 waited nearby the house of AO. At 06:30 p.m. AO returned to his house and on seeing LW.1, AO asked him to come into the house. LW.1 requested him to prepare the hire charge bills of his vehicle for the period from February to August, 2020. On that AO demanded LW.1 to pay Rs.5,000/- as part 5 AVRB,J Crl.A. No.1240/2007 payment of bribe. Then, LW.1 paid the tainted amount of Rs.5,000/- from his shirt pocket, which was received by AO with his right hand, counted it with both hands and put it in a zip bag and kept the same in a steel almyrah in the bedroom. AO informed LW.1 that he would prepare the bills within two or three days. Then, LW.1 came out and gave a pre-arranged signal at about 06:55 p.m. Then, the DSP, ACB along with raid party members rushed to the house of AO and conducted post-trap proceedings. The chemical test conducted to both hand fingers of AO yielded positive result. The tainted amount was recovered from the possession of AO, when he produced the same from steel almyrah from a zip bag. The numbers of tainted currency notes were tallied with numbers of currency notes noted in the pre-trap proceedings. The chemical test conducted to inner linings of the zip bag also yielded positive result. The DSP, ACB seized the tainted amount, zip bag, brown cover, relevant documents and records from the house of AO. The Government of AO vide G.O.Ms. No. 384, dated 11.10.2001, accorded sanction to prosecute the AO. Hence, the charge sheet.
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4. The learned Special Judge took cognizance of the case under the above provisions of law. After appearance of the accused and by following the procedure under Section 239 Cr.P.C, the learned Special Judge framed charges under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act against the AO and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried.
5. The prosecution, during the course of trial, got examined PWs.1 to 8 and marked Exs.P-1 to P-23 and MOs.1 to 10.
6. After closure of the evidence of the prosecution, AO was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution for which he denied the same and did not adduce any defence evidence.
7. 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 and accordingly acquitted him under Section 248(1) Cr.P.C.
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8. Felt aggrieved of the same, the State, represented by Inspector of Police, ACB, Nellore Range filed the present Criminal Appeal.
9. Now, in deciding this Criminal Appeal, the points that arise for consideration are:
1) Whether the prosecution before the Court below proved that AO, prior to the date of trap and at the time of trap, demanded the complainant to pay the bribe and accepted a sum of Rs.5,000/- towards part of bribe as such further obtained pecuniary advantage within the meaning of Section 13 (1)(d) R/w. Section 13(2) of the PC Act?
2) Whether the prosecution proved charges under Sections 7 and 13 (1)(d) R/w. Section 13(2) of the PC Act against the Accused Officer beyond reasonable doubt?
10. Sri S.M.Subhani, learned Standing Counsel for ACB-cum- Special Public Prosecutor, would contend that the prosecution before the Court below by examining PWs.1 to 4 proved pendency of the official favour in respect of the claim of the de-facto 8 AVRB,J Crl.A. No.1240/2007 complainant beyond reasonable doubt. The learned Special Judge on erroneous appreciation of the facts opined that the prosecution failed to prove that aspect which is not tenable. The complainant could not be examined before the Court below as he died prior to his examination. However, AO dealt with the tainted amount, the amount was recovered from his physical possession and the chemical test to both hand fingers of AO as well as the inner linings of the zip bag yielded positive result. Though the prosecution had the benefit of presumption under Section 20 of the PC Act, the learned Special Judge did not draw such presumption as such Appeal is liable to be allowed.
11. Sri M. Ravindra, learned counsel, representing learned counsel for the respondent, would contend that PW.1 did not send log sheets to the AO and the vehicle was used by PW.1 as well as the AO. Even the evidence of PWs.1 to 4 reveals that to process the budget allotment, log sheets were to be sent. So, as PW.1 did not send the log sheets, AO could not send the same to DMHO. Even otherwise, AO addressed a letter, dated 09.11.2000, which was marked as Ex.P-8, to the DMHO irrespective of the log sheets of PW.1, to allot the budget. The learned Special Judge on appreciation of the facts in proper perspective gave findings that 9 AVRB,J Crl.A. No.1240/2007 the prosecution failed to prove the pendency of official favour. As the complainant was not examined before the Court below, there was no evidence to prove the demand alleged against the AO. There was spontaneous version by the AO during the post-trap proceedings that complainant paid the amount to him towards the fuel charges incurred by AO when the complainant was not able to spend the fuel charges of the vehicle. The evidence of the prosecution witnesses was in favour of such practice. So, the amount that was received by AO was only towards fuel charges spent by him which was reimbursed by the de-facto complainant. Learned Special Judge rightly appreciated the evidence on record as such Appeal is liable to be dismissed.
12. POINT Nos.1 & 2: In the light of the above rival contentions advanced, the first thing which the prosecution has to establish is the pendency of official favour. PW.1 is the then Medical Officer, PHC, Annasamudram. By that time, AO was working as Medical Officer, PHC, Tripuranthakam. There is no dispute that, even according to the case of the prosecution, AO as well as PW.1 used the vehicle of the de-facto complainant for official purpose. Prosecution examined PWs.1 to 4 before the Court below to prove pendency of the official favour. Turning to the evidence of PW.1, he 10 AVRB,J Crl.A. No.1240/2007 deposed in substance that to perform the family planning programme and Immunization programme, the DMHO, Ongole permitted to hire a private vehicle for the use of PHCs of Tripuranthakam, Annasamudram, Duphadu and Pullala Cheruvu. The Medical Officer, Tripuranthakam is the Controlling and Monitoring Officer. AO took the jeep belonged to one G. Srinivasa Rao (LW.1) on hire from April, 1999 on a monthly hire of Rs.7,500/- with a condition to bear the diesel charges. Jeep was used by him and the Medical Officer, Tripuranthakam. Medical Officers of other two PHCs i.e., Duphadu and Pullalacheruvu did not use the vehicle. He used the vehicle for 6 to 10 days in a month. He spent fuel charges for April to September, 2000 from his pocket. Initially, he received fuel charges for the first two months i.e., April and May at the rate of Rs.1,000/- p.m. Later, he received the amounts for the remaining months also. Later, orders were issued to hire the vehicle at the rate of Rs.9,000/- p.m. including fuel charges from the month of October, 1999. When he used the vehicle, he spent money for fuel charges from October, 1999 as LW.1 expressed that he could not bear the money and that it can be recovered from the bill subsequently. He prepared the log reports and sent the same to AO and the AO along with his log reports prepared has to send the same to DMHO, Ongole and 11 AVRB,J Crl.A. No.1240/2007 then the amount would be released. Up to January, 2000, he sent log reports to the AO and he did not sent them later. Unless log report is sent to the DMHO, budget would not be released. Prosecution got declared him as hostile as he did not support the case of the prosecution. During cross-examination, he denied that he stated before Police as in Ex.P-1.
13. During cross-examination by the learned Special Public Prosecutor, he denied the prosecution case. During cross- examination by the learned defence counsel, he deposed that the budget used to be released after his log reports and the log reports of AO are sent to the DMHO for payment of hire charges. The budget was released up to January, 2000 since the log reports were sent up to that date.
14. Coming to the evidence of PW.2, his evidence on crucial aspects is that the DMHO used to send the cheques in the name of Medical Officer, PHC, Tripuranthakam who in turn used to encash and pay to the owner of the vehicle. AO addressed a letter for allotment of budget from February to August, 2000 to DMHO towards hire charges. DMHO Office asked for log reports and the budget was not released since the AO did not send the log sheets. 12
AVRB,J Crl.A. No.1240/2007 The Medical Officers of Tripuranthakam and Annasamudram only used the vehicle i.e., jeep bearing No.APC 7546.
15. Coming to the evidence of PW.3, who is the driver of jeep, he deposed that G. Srinivasa Rao (LW.1) was his classmate and friend. He worked as driver of the said vehicle from August, 1999 to June, 2000. Srinivasa Rao used to pay salary of Rs.1,300/- p.m. to him. He knows AO. While he was working as driver, AO and PW.1 used to give money for fuel charges since LW.1 - Srinivasa Rao did not possess any money. During that time, his health was indifferent and he was suffering from T.B. Prosecution declared him as hostile and during cross-examination, he denied that he stated before Police as in Ex.P-3, 161 Cr.P.C. statement. During cross-examination by the learned defence counsel he deposed that owner - Srinivasa Rao (LW.1) informed the AO that he was in financial difficulties and requested him to bear the fuel charges and that he would repay the same after receipt of the bill.
16. Coming to the evidence of PW.4 - Dr. R. Subbaiah, the then DMHO, he issued the proceedings in R.C.No.133/G1/99, dated 10.02.1999, permitting to use 9 vehicles on hire each at the rate of Rs.7,500/- p.m. by the PHCs. Ex.P-4 is the said proceedings. The evidence of PW.4 in substance is that the Government issued 13 AVRB,J Crl.A. No.1240/2007 G.O.Ms.No.272, dated 21.05.1999, allotting 24 vehicles to the PHCs in Ongole District and Ex.P-5 is the said GO. He further spoken that the Medical Officer, Tripuranthakam sent a letter, dated 09.11.2000, requesting for release of Rs.63,000/- towards hire charges to the vehicle from February to August, 2000 at the rate of Rs.9,000/- p.m. Ex.P-8 is the said letter. The budget was not sent to the Medical Officer, PHC, Tripuranthakam since the log reports were not received by the DMHO.
17. Though PWs.1 to 3 did not support the case of the prosecution but the thing is that there is no dispute for the months of February to August, 2000 hire charges were issued to LW.1 by the PHC, Tripuranthakam. There is no dispute that for the PHCs of Tripuranthaka, Annasamudram, Duphadu and Pullalacheruvu only one vehicle was permitted to be used for which AO was the Controlling Officer. There is no dispute that AO as well as PW.1 being the Medical Officers of Tripuranthakama and Annasamudram used the vehicle of de-facto complainant on hire basis. There is also no dispute that originally the hire charges were sanctioned at the rate of Rs.7,500/- p.m. and later it was enhanced to Rs.9,000/- p.m. and the amount of Rs.9,000/- was inclusive of fuel charges of Rs.1,500/-. These facts are not in 14 AVRB,J Crl.A. No.1240/2007 dispute. The evidence of PW.1 is so categorical that in order to draw the hire charges, he has to prepare the log reports and send the same to AO and AO along with his log reports has to send the same to DMHO, Ongole and then only the amount would be released. This procedure is not in dispute. Even during cross- examination by the learned defence counsel also he categorically deposed that he did not send the log reports to the AO. When the vehicle was in general usage for AO and PW.1, a duty was also cast upon PW.1 to send the log reports to AO and then AO in turn has to send his log reports to the DMHO. This procedure, as spoken by PW.1, is also spoken by PW.2 in his cross-examination and there is no dispute about it. So, according to the case of the prosecution, log reports were supposed to be forwarded to DMHO to allot the budget.
18. It is the case of the prosecution that AO did not submit the log reports to process the budget. There was admission from PW.1 that he did not send the log reports to AO when the vehicle was also used by PW.1. Firstly, he has to submit his log reports to AO, who was his Controlling Officer. There is no dispute that irrespective of submission of log reports by AO there was a letter addressed by AO, which was marked as Ex.P-8, to DMHO 15 AVRB,J Crl.A. No.1240/2007 requesting to release the budget. So, the fact is that as on the date of Ex.P-19, which was marked through the Investigating Officer, because LW.1 died, AO addressed a letter under Ex.P-8 to the DMHO, Ongole to allot the budget. So, as the budget was not released AO did not take any steps to process the claim of LW.1. So, the facts are such that for allotment of budget by DMHO, submission of log reports are necessary and as PW.1 did not submit his log reports, AO cannot submit his log reports along with the log reports of PW.1 to the DMHO. However, AO addressed a letter under Ex.P-8 requesting the DMHO to allot the budget. The learned Special Judge rightly looked into all these aspects and with cogent reasons held that the official favour in respect of the work of PW.1 was not pending with AO. I do not find any reason to interfere with the same in this regard.
19. Now, this Court has to see as to whether the prosecution before the Court below proved that one week prior to Ex.P-1, AO demanded LW.1 - G. Srinivasa Rao to pay the bribe of Rs.20,000/- and insisted him to pay Rs.10,000/- as advance and that on the date of Ex.P-19, he further demanded LW.1 to pay at least Rs.5,000/- and to pay rest after receipt of payment and finally on the date of trap, demanded and accepted an amount of Rs.5,000/- 16
AVRB,J Crl.A. No.1240/2007 from LW.1 towards part of bribe. As LW.1 died prior to his examination before the Court below, his report marked under Ex.P-19 cannot be read in substantive evidence. So, with regard to the allegations in Ex.P-19 and the allegations in the post-trap proceedings, there was no substantive evidence before the Court below. So, there was no direct evidence to prove that one week prior to the report of LW.1, on the date of report and during the post trap, AO demanded LW.1 and accepted the bribe.
20. Prosecution examined PW.5, the mediator to the pre-trap and post-trap proceedings and PW.6, the Trap Laying Officer, and PW.8 is the then Inspector of Police, ACB, Nellore Range. The evidence of PWs.6 and 8 means that during the pre-trap proceedings, the complainant was asked as to the genuinity of his report and he confirmed the same. Upon the bribe amount brought by the complainant, it was applied with phenolphthalein powder and was kept in the shirt pocket of complainant with a direction to give the amount to AO only on his further demand. Their evidence regarding post trap is that soon after receipt of the pre arranged signal, the trap party members rushed into the house of AO and conducted chemical test to both hand fingers of AO, which yielded positive result. So, by virtue of the evidence of 17 AVRB,J Crl.A. No.1240/2007 PWs.6 and 8, the prosecution was able to establish before the Court below that AO dealt with the tainted amount. AO did not dispute the recovery of the amount from him. These facts are not in dispute. So, what the prosecution proved before the Court below is that the tainted amount was recovered from the possession of AO.
21. Now, this Court has to see whether mere recovery of the amount from AO would prove the charges framed. As this Court already pointed out Accused Officer was not capable of sending log reports to DMHO because he did not receive the log sheets from PW.1. Apart from this, he addressed a letter under Ex.P-8, positively requesting the DMHO to allot the budget pertaining to the vehicle of LW.1 - G. Srinivasa Rao and in that view of the matter, DMHO could not process the claim of LW.1. As evident from the evidence of PWs.1 and 3 there was a practice that PW.1 and AO used to spend the fuel expenses with an understanding to recover later from LW.1. Though the said practice was not in accordance with the Rules but there is no doubt that LW.1 was suffering with serious ill-health and he was in financial troubles. There was a spontaneous version by AO during the post-trap that LW.1 due amounts to him with regard to the fuel expenses 18 AVRB,J Crl.A. No.1240/2007 incurred by AO and further he borrowed a sum of Rs.2,000/- from him. So, AO during the course of post trap upon question by the DSP, ACB as to how he received the tainted amount clarified spontaneously that the amount that was received by him from the de-facto complainant was only towards fuel charges incurred by him and LW.1 undertook to reimburse the same. According to the evidence of PW.3, the driver of the jeep, AO and PW.1 used to spend fuel expenses with an understanding from LW.1. So, the defence of AO is in tune with the spontaneous version mentioned in the post trap proceedings. SO, AO had probabilized a theory during the course of trial that he received the amount from LW.1 towards the amount due by him towards fuel expenses. Needless to point out here that initially monthly rental for the vehicle was Rs.7,500/- only. Later it was enhanced to Rs.9,000/-, which is inclusive of fuel charges of Rs.1,500/-. These facts are not in dispute. The learned Special Judge by looking into the defence theory and by looking into the post-trap proceedings found favour with the defence of the AO. The learned Special Judge by following the precedents to the effect that mere recovery of the amount from AO would not prove the demand and acceptance of bribe, held simply because AO received the amount from LW.1, it cannot be held that he received the same towards bribe. The learned Special 19 AVRB,J Crl.A. No.1240/2007 Judge by relying upon the decision of the Hon'ble Apex Court in State of A.P. v. T. Venkateswara Rao and another1, held that recovery of the amount from the possession of AO itself is not sufficient to prove the charges.
22. The learned Special Judge took into consideration the fact that the complainant is no more as such prosecution did not establish that AO demanded and accepted illegal gratification from the complainant. The learned Special Judge took into consideration the plea of AO as projected in the post-trap proceedings. The learned Special Judge further held that the facts and circumstances are not sufficient to draw the presumption under Section 20 of the PC Act. Having regard to the above, I am of the considered view that the judgment delivered by the learned Special Judge cannot be said to be un-reasonable.
23. Having regard to the above, I am of the considered view that the prosecution before the Court below further failed to prove the allegations of demand and acceptance of bribe by AO. The learned Special Judge with proper reasons extended an order of acquittal in favour of AO, which cannot be interfered with, in my considered 1 (2004 (13) SCC 227) 20 AVRB,J Crl.A. No.1240/2007 view. Hence, I do not see any reason to interfere with the judgment of the learned Special Judge.
24. In the result, the Criminal Appeal is dismissed.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 26.04.2023 DSH