Andhra Pradesh High Court - Amravati
The State Rep. By Inspector Of Police, vs B.Chandrasekher, on 23 September, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No. 1207 of 2006
JUDGMENT:
1) Heard Sri. S.M. Subhani, Standing Counsel for the Anti- Corruption Bureau representing the State and Sri. B.Venkata Rathnam, the learned Counsel for the Respondent/Accused Officer. With their consent, the Criminal Appeal is disposed of through BlueJeans video conferencing app.
2) The substance of the charge against the Respondent/Accused Officer is that, while working as Senior Assistant in the Office of Executive Engineer, H.L.C., Division, Ananthapur, he is alleged to have demanded a sum of Rs.500/- as illegal gratification other than the legal remuneration from PW1, for processing his pay revision papers and, in pursuance thereof, accepted the said amount, on 27.05.2000. In respect of the said charge, the Respondent/Accused Officer was tried for the offences punishable under Section 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [the"Act"], which ended in acquittal, vide Judgment, dated 03.04.2006.
3) Assailing the Judgment of acquittal, dated 03.04.2006, passed in C.C. No. 17 of 2001, on the file of the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, the State represented by the Inspector of Police, Anti-Corruption 2 Bureau, Ananthapur Range, Ananthapur, preferred this present Criminal Appeal.
4) The facts, as culled out, from the evidence of prosecution witness, are as under:-
i) PW1 was working as Work Inspector at P.A.B.R., Sub-
Division No. 4, Ananthapur, since 24.02.1998. Prior to it, he worked as N.M.R. I&C.A.D Department, Ananthapur. Without regularizing his services, he was removed from the N.M.R. post, which lead to filing of a suit before the Labour Tribunal, Ananthapur. An Award came to be passed, on 18.04.1990, in favour of PW1, ordering continuity of his service and to pay all back wages and benefits. Pursuant to the Award passed, he submitted a memorandum to S.E. T.BP.H.L.C. Circle, Ananthapur, seeking implementation of the Award. The S.E. is alleged to have told PW1 to file a notarized affidavit to the effect that, he will not claim and will forgo all back wages for continuing with his services. When PW1 showed his reluctance to give such an affidavit, S.E. filed a writ petition, challenging the Award, passed by the Tribunal before the High Court, wherein, an interim order came to be passed suspending the Award, but, however, directing the S.E. to pay Rs.10,000/- within six weeks.
Accordingly, Rs.10,000/- was paid within six weeks. 3 Thereafter, PW1 filed a writ petition in the High Court seeking restoration of his job. An interim order came to be passed, directing the authorities to deposit last drawn pay in the Labour Tribunal, before 5th of every month and permitting PW1 to withdraw the amount without any security.
ii) While things stood thus, similar employees who stand on the same footing that of PW1, also approached and obtained orders in their favor. The said orders of Tribunal were implemented and they were given jobs as per the Award. When PW1 brought to the notice of S.E., he again insisted PW1 to file an affidavit to the effect that PW1 shall seek continuity of service but would receive the arrears of salary from the date of Tribunal's Award, dated 18.04.1990. A notarized affidavit to that effect was also given. Thereafter, the S.E. referred the matter to the Government, which passed an Award stating that, if the writ petition filed is withdrawn, PW1 may be reinstated in the service. Accordingly, the writ petition was withdrawn, in the month of January 1998. Thereafter, S.E. issued orders giving posting to PW1 as Work Inspector Grade-IV, H.L.C. Division, Ananthapur, with minimum scale. He was re-posted by the Executive Engineer in Garladinne 4 Sub-Division and thereafter his posting was modified and posted as P.A.B.R. No. 4 Sub-Division, on 24.02.1998.
iii) While things stood thus, PW1 along with others submitted option forms, on 06.09.1999, for
implementation of pay revision. The pay revision was given to all the employees, except PW1.
iv) On 25.05.2000, PW1 met the Respondent/Accused Officer, who was working as Senior Assistant in the Office of the H.L.C., Division, Ananthapur, and enquired about the pay revision. The Respondent/Accused Officer is alleged to have stated that, he will not do any work free and, if a sum of Rs.500/- is paid, the work will be done immediately. PW1 is said to have told the Respondent/Accused Officer that, he will come, on 27.05.2000, and pay the demand amount. Then, on 26.05.2000, PW1 went to the office of Anti-Corruption Bureau, Ananthapur, and lodged a report, which was placed on record as Ex.P1.
v) PW7, the Deputy Superintendent of Police, A.C.B., Ananthapur, received Ex.P1 at 2.00 P.M., and asked PW1 to come on next day at 10.15 A.M., along with the proposed bribe amount of Rs.500/-. PW7 verified the antecedents of the Respondent/Accused Officer and 5 learnt that he is a corrupt officer. His inquiry about PW1 revealed that there are no ill-feelings between the Respondent/Accused Officer and PW1. He sent a requisition to the Deputy Director Sericulture, Ananthapur, to spare the services of a Gazetted Officer and non-Gazetted Officer and report before him, on 27.05.2000 at 10.30 A.M. The facts of the complaint were apprised to the higher officers and after obtaining permission, registered a case in Cr. No.4/ACB/ ATP/2000, under Section 7, 13(1)(d) read with 13(2) of the Act and issued First Information Report, which is placed on record as Ex.P12.
vi) On 27.05.2000, while PW7 was in office along with other staff members, the mediators and PW1 came to the office by 10.45 A.M. PW7 introduced PW1-informant to the mediators vice versa and handed over a copy of the report to one of the mediators, who read out the contents of the report, to which PW1 admitted them to be true. After verifying the same, the mediators attested the report. PW1 was asked to produce the bribe amount of Rs.500/-, which was received by one of the mediators. The bribe amount of Rs.500/- consists of hundred rupee notes, in number five. The serial numbers of the notes were read out and PW2 incorporated the denominations and the 6 serial numbers in the first mediator's report, which is placed on record as Ex.P4.
vii) PW7 asked the second mediator -Murali Mohan, to hand over the wad of currency notes to P.C.610, who received the same. The Sub-Inspector was asked to search PW1 and he removed other articles and currency notes, except handkerchief. The importance of phenolphthalein test was explained to PW1 and a demonstration as to how the solution turns into pink in colour was conducted before PW1 by the Police Constable. Further, PW1 was instructed to go to the office of the Respondent/Accused Officer, meet him and hand over the amount only on his demand, and not otherwise. On acceptance of such money, PW1 was asked to come out of office and give a signal by wiping his face with his handkerchief thrice. After collecting all the material necessary for preparing test, PW7 along with staff and mediators left the office at 11.50 A.M. in a Van and reached the Postal Colony, which is situated at a distance of 150 yards towards south of the Executive Engineer, H.L.C., Ananthapur. The vehicle was parked at vantage position and PW1 was asked to proceed to the Respondent/Accused Officer and pay the money only on demand. P.C.627 was asked to follow PW1 to a little distance and take vantage position 7 in the vicinity of the Respondent/Accused Officer underneath a tree. All other officers were asked to take respective positions in-front of Respondent/Accused Officer office.
viii) PW1 went into the office of Respondent/Accused Officer, who was present. When inquired about his pay revision, the Respondent/Accused Officer inquired whether he brought the bribe amount. PW1 gave answer in affirmative. Then, the Respondent/Accused Officer asked him to sit on a stool on the right side of the table. After sitting on stool, PW1 handed over Rs.500/- to the Respondent/Accused Officer, who took it with his right hand and kept in his left side of shirt pocket. Thereafter, PW1 requested the Respondent/Accused Officer to send his pay revision papers early. The Respondent/Accused Officer informed PW1 that he will send them by Monday morning i.e., 29.05.2020, and asked him to meet on that day. PW1 came out and gave a pre-arranged signal by wiping his face thrice with handkerchief to the Constable, who in turn relayed the signal.
ix) On receipt of signal, PW7 rushed to the office of the Respondent/Accused Officer and found PW1 standing in- front of the office. PW7 asked PW1 to stay outside till he calls him inside. On entering the office, PW7 found one 8 person sitting in the accounts office towards south east corner of the room. PW7 introduced himself, other staff members and mediators to the Respondent/Accused Officer and ascertained his name as B.Chandrasekahr [A.O.]. PW7 asked the Inspector -Jawahar Basha, to prepare two glass tumblers of sodium carbonate solution and asked the Respondent/Accused Officer to rinse his right hand fingers in one of the glass tumblers. On doing so, the colur-less solution turned into pink colour. PW7 asked about the tainted amount, which was received from PW1. The Respondent/Accused Officer produced the wad of currency notes from his front left side shirt pocket. PW7 asked one Murali Mohan to compare the notes with the numbers mentioned in the first mediator report. On verification, the same got tallied. PW7 seized the amount, which is placed on record as MO.5, and also the resultant solution, which are marked as MO. 3 and MO.4. PW7 sent one of the Police Constables to get a shirt from the house of Respondent/Accused Officer and gave it to him. PW7 conducted sodium carbonate test on the inner linings of the shirt pocket of the Respondent/Accused Officer, which was also proved positive to phenolphthalein test. The resultant solution is marked as MO.7. PW7 asked the Respondent/Accused Officer to produce the file of PW1. He produced the same and on a perusal of the same, PW7 9 noticed that it contains pay fixation papers and Service Register containing 1 to 14 pages bearing letter No. 79 P 4, dated 15.05.2000. PW7 seized the above, under a mediator report. The Respondent/Accused Officer claim to have received the above file, on 23.05.2000, and the same was entered in his personal register at Sl. No. 285, on 23.05.2000. PW7 seized the personal register, attested by him and the mediators. Ex.P2 is the file relating to PW1, which bears his signature. He also secured the Inward Register of P.A.B.R. No. 4, from 01.01.1999, containing entry at Sl. No. 173 under the date 23.05.2000, having transmitted to E.C. II Clerk. PW7 also secured the Attendance Register and on perusal of it, the Respondent/Accused Officer found marking attendance from 17.05.2000 to 27.05.2000, which was seized in the presence of mediators. Ex.P3, Ex.P5, Ex.P6 and Ex.P7 are the said Registers. Thereafter, PW1 was called and on asking as to what happened, he narrated what all happened, which was incorporated in Ex.P9 - post-trap proceedings. PW7 called the officials, who were present in the accounts office along with the Respondent/Accused Officer and enquired as to whether they witnessed the transaction that took place between the Respondent/Accused Officer and PW1. What all stated by them was incorporated in Ex.P9. PW7 also got prepared 10 rough sketch of the scene, which is placed on record as Ex.P8. Later, PW7 arrested the Respondent/Accused Officer and released him on bail on self-surety. Further investigation, in this case, was taken over by PW8 -the Inspector of Police, Anti-Corruption Bureau.
x) PW8 made a requisition to the Chief Judicial Magistrate, Ananthapur and got recorded Section 164 Cr.P.C., statement of PW1 by the Judicial 1st Class Magistrate, Ananthalpur, on 12.06.2000. He secured the presence of PW3 and recorded his statement, on 05.08.2000, and that of PW5 on 26.09.2000 and PW4 on 30.09.2000. On completion of investigation, PW8 filed a charge-sheet, which was taken on file as C.C. No. 17 of 2001.
5) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished and charges as referred to earlier, came to be framed, read over and explained to the Respondent/Accused Officer, to which he pleaded not guilty and claimed to be tried.
6) In support of its case, the prosecution examined PW1 to PW9 and got marked Ex.P1 to Ex.P12, beside MO.1 to MO.8. After completion of the prosecution evidence, the Respondent/Accused Officer was examined under section 313 Cr.P.C with reference to the incriminating circumstances appearing against him in the 11 evidence of prosecution witnesses, to which, he denied. The Respondent/Accused Officer apart from filing his written statement, got examined DW1 and DW2 and got marked Ex.D1 to Ex.D5(a).
7) In the written statement, the Respondent/Accused Officer took the plea that he never demanded the bribe from PW1. It is stated that, without verifying the antecedents, the present trap came to be made. He further pleaded that, there was no official favor, which is pending before him, either on the date of complaint or on the date of trap, and the fact that he has done his job was known to PW1 even before the alleged date of demand. That being so, the question of paying the money would not arise. It is further pleaded that, the money was forcibly thrusted in his short pocket, which is evident from the evidence of DW1 and DW2, who are government employees working along with him in the office, and one of whom was given up by the prosecution.
8) After considering the evidence of PW1, PW3, PW4, PW5 & PW7 and taking into consideration the evidence of defense witnesses, the learned Special Judge acquitted the Respondent/Accused Officer. Challenging the same, the State preferred the present Criminal Appeal.
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9) Sri. S.M. Subhani, learned Standing Counsel for Anti Corruption Bureau, representing the Appellant/State, would contend that, a reading of the evidence of the prosecution witnesses amply establish that, the Respondent/Accused Officer demanded the bribe amount and accepted the same. He further pleads that, in the absence of any proper explanation given by the Respondent/Accused Officer, as to how the phenolphthalein test proved positive and that his hand turned pink in colour, a presumption has to be drawn that the money was accepted as illegal gratification for doing a favour to PW1. He further pleads that, if really, there was no favour, there is no necessity to keep the papers of PW1 with him. When both demand and acceptance are proved, he would contend that, the acquittal given by the trial court on a finding that, there was no official favour pending, is incorrect and, as such, same warrants interference. In support of his plea, he relied upon various judgments of this court and that of the Hon'ble Supreme Court, which, I will refer a little later.
10) (i) Sri. B. Venkata Rathnam, the learned Counsel for the Respondent/Accused Officer would contend that, a well reasoned judgment of the trial court warrants no interference. Insofar as the demand of money is concerned, he would contend that, the same is not corroborated by any other independent witness, except the evidence of PW1, which has to be viewed with suspicion, having regard to the enmity he had in the department.
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(ii) Coming to the recovery of money, he would submit that, the Respondent/Accused Officer gave a proper explanation as to how the money came to his pocket, which is evident from the suggestions given to the witnesses and the evidence of DW1 and DW2, who categorically deposed that, the money was forcibly thrust into the shirt pocket of the Respondent/Accused Officer. According to him, these two witnesses are government servants, working in the same department and that the credence be given to their evidence, as they are speaking against the mighty prosecuting agency. According to him, one of the witnesses shown as prosecution witness was given up. Hence, pleads that much reliance can be placed on their evidence to show that the money was forcibly kept in the short pocket of the Respondent/Accused Officer. He took the court through the evidence of other witnesses and, more particularly, the evidence of PW1, PW3, PW4, PW5 and PW7 to show that, there was no favour which the Respondent/Accused Officer can do to PW1.
(iii) Insofar as pay revision is concerned, since, the Deputy Executive Engineer has not complied with the objections raised by the Accounts Officer, which the fact was known to PW1. When the status of the file is known to PW1, the question of PW1 paying the money to the Respondent/Accused Officer and the Respondent/Accused Officer demanding money for doing a favor, is only a story invented for laying a false trap. 14
11) The point that arises for consideration is, whether the prosecution was able to prove their case beyond reasonable doubt?
12) In short, the case of the prosecution is that, the Respondent/Accused Officer is said to have demanded an amount of Rs.500/- as bribe, on 25.05.2000, and accepted the same, on 27.05.2000, for processing pay revision papers of PW1.
13) In order to appreciate the rival contentions advanced, it would be useful to refer to the evidence of witnesses. But, before referring to the evidence of witnesses, three aspects, which require consideration in this appeal are:
i) Whether, there was any official favour pending before PW1;
ii) Whether, the Respondent/Accused Officer demanded the bribe as alleged by PW1; and
iii) Whether, the Respondent/Accused Officer accepted the bribe for doing a favour.
14) Point (i). It is to be noted that, the Respondent/Accused Officer was working as Senior Assistant in the Office of the Executive Engineer; while PW1 who was posted at P.A.B.R. No. IV, Sub-Division, was working under Deputy Executive Engineer.
Both these offices are different, but, of-course, situated nearby. It is in the evidence of PW1 that, the Deputy Executive Engineer was the Controlling Officer over the Sub-Division, where, PW1 was 15 working; while the Executive Engineer is the authority over the Deputy Executive Engineer. The Respondent/Accused Officer was working in the office of the Executive Engineer and both the offices were situated in one compound. PW1 in his evidence admits that, he has acquaintance with the staff of both the offices. PW1 admits that, in Ex.P1 report, he has mentioned about the events which occurred prior to 25.05.2000, but, there is no reference to pay revision matter. It would be useful to extract the same as under:-
"It is true in my said complaint Ex.P1 what all the matters I have mentioned occurred prior to 25.05.2000 which are relating to my trials over getting back the job and there is no mention of pay revision matter."
15) With regard to option forms, the answer elicited in the cross- examination of PW1, are as under:
"The A.E's signature in this option form is on 10.09.1999. It is true option forms will be submitted to Executive Engineer as per procedure, before whom the concerned clerk will put up the said option form. It is shown in the said option form the date under the initial of the clerk is 24.03.2000."
16) Further, PW1's own admission shows that, the Executive Engineer issued pay fixation proceedings/order, dated 10.04.2000, and copies of the same were marked to PW1 and to the Deputy Executive Engineer. The proceedings which were shown to PW1 establish that the concerned clerk put up a note, on 24.03.2000 itself, and the Executive Engineer initialed it and at 16 the heading of the proceedings, the month is first shown is (3) and rewritten as (4). It would be useful to extract the same, which is as under:-
"It is true the Executive Engineer issued pay fixation proceedings/order, dated 10.04.2000, and copies were marked to me, to the Deputy Executive Engineer. In the proceedings shown to me, it is seen that the concerned clerk put up the note on 24.03.2000 and E.E. initialed it and at the heading of the proceedings the month is first shown is (3) and rewritten as (4). It is mentioned in that order that copy of it is marked to me and to the Deputy Executive Engineer for necessary action i.e., he is requested to record the above entries in the Service book of the individual and resubmit the same to this office for onward transmission to P.A.O for scrutiny."
17) With regard to the entries in the service register about the pay revision, PW1 admits as under:-
"It is true as seen from Ex.P3 in my Service Register an entry is made on 12.04.2000 about the above said proceedings dt. 10.04.2000 and signed by the Deputy Executive Engineer at pages 13 and 14. The reference number in Ex.P3 Service Register at page 13 and the reference number in the proceedings shown to me above the knowledge of which I denied, are one and the same bearing No. EC 2/E 8 (M) No: 384 m dt. 10.04.2000."
18) The evidence on record further shows that the Deputy Executive Engineer re-submitted the file to Executive Engineer for onward transmission to the Respondent/Accused Officer, who in turn submitted to Pay & Accounts Office, on 26.04.2000. It has come on record that, the said file was returned by Pay & Accounts 17 Office to the Executive Engineer, on 06.05.2000, for compliance of certain objections. PW1, though, claims that, he is not aware of the same, but, when the file was confronted to him, he admits that the signature shown to him, dated 15.05.2000, in the dispatch register of Deputy Executive Engineer, P.A.B.R. No. IV is that of him and he acknowledged the receipt of the above said file. The Dispatch Register is marked as Ex.D1, in which, Ex.D1(a) is the entry. It would be useful to extract the same, which is under:-
"It is true the signature shown to me, dated 15.05.2000, in the dispatch register of Deputy Executive Engineer, P.A.B.R. No. IV is mine, and I have acknowledged the receipt of the above said file. The said dispatch register is marked as Ex.D1, and in which, Ex.D1(a) the above said admitted entry of the witness."
19) PW1 further admits that, Ex.P2 file contains the letter of the Pay & Accounts Office, dated 05.05.2000, addressed to the Executive Engineer returning his file with objections and for further compliance on the back side of page No. 1. The said letter containing an endorsement of forwarding to D.E.E., for compliance of the objections raised, in the letter of the Pay & Accounts Office and to resubmit his service book. There is a further endorsement of D.E.E. to the effect that, the information has been recorded in the service book on S.C. The objections raised by Pay & Accounts Office in the letter addressed to the E.E. is that, as per the letter, dated 05.05.2000, the necessary entries regarding basic pay as on date of option and allowances to be 18 taken for fixation of pay may be recorded in the Service book. A perusal of Ex.P3 service book show that, such an entry was not made after receiving the objection letter, dated 05.05.2000. It would be appropriate to extract the same, from the evidence of PW1, which is as under:-
"It is true Ex.P2 file contained the letter of the P.A.O dated 05.05.2000 addressed to the Executive Engineer returning my file with objections and for further compliance on the back side of page No. 1. It is true the said letter contained endorsement of forwarding to D.E.E. for compliance, in which the objections referred in para no. 1 of the letter of the P.A.O was asked to be complied with and resubmit my service book. There is a further endorsement of D.E.E. to the effect that, the information has been recorded in the Service Book on S.C. Letter number has been enclosed and it was signed on 19.05.2000. The first objection raised by the P.A.O. office is the letter addressed to the E.E. is that as per the letter, dated 05.05.2000, that necessary entries regarding basic pay as on date of option and allowances to be taken for fixation of pay may be recorded in the Service book. A perusal of Ex.P3 service book. It is true as seen from Ex.P3 service book such an entry is not made after receiving the objection, dated 05.05.2000. It is true I have not mentioned in my complaint Ex.P1 the above correspondence relating to my pay fixation prior to 25.05.2000."
20) The admissions, in the cross-examination of PW1, which show that there is no favour which the accused could have done, is as under:-
"It is true I have mentioned in my Ex.P1 complaint that the A.O. demanded bribe for processing my pay revision 19 papers. As per the record referred above my pay revision papers have already been possessed by that date. It is true at the time of my giving complaint to the A.C.B. the process was at the stage of compliance of objections raised by the P.A.O. It is true only my Deputy Executive Engineer being the drawing officer has power to record entries in my Service register. It is true the objection raised has to be complied with by D.E.E. only. The A.P. cannot make entries which the D.E.E. has to make. It is true as seen from page no. 1 of Ex.P2 file the Executive Engineer already passed orders on 15.05.2000. It is seen from in that page the A.O. ha put his initials dated 12.05.2000."
21) From the evidence of this witness, which is referred to above, it is very much clear that, there is nothing which the Respondent/Accused Officer can do, either on the date of demand or on the date of acceptance. The file relating to PW1 was sent back by P.A.O. raising certain objections, which only the Deputy Executive Engineer, under whom PW1 works, is competent to make the entry. PW1, in-fact, admits that, the objections raised by P.A.O. were not complied with and the same was to his knowledge even by 15.05.2000. In-fact, the evidence of PW1 shows that, the Office of the Executive Engineer under whom the Respondent/Accused Officer works, has forwarded the papers received by them from the Deputy Executive Engineer to the office of the P.A.O. for granting pay revision, but, the same was returned as certain entries, which were required to be made in the service register were not made by the Deputy Executive Engineer. 20
22) Coming to the evidence of PW4, who was working as Superintendent in High Level Canal Division, Ananthapur, and who knows PW1, states that, their office received Pay Revision Option forms of PW1 from P.A.B.R. Sub-Division No. IV, Ananthapur, on 17.09.1999, and on receipt of the same, they were handed over to the Respondent/Accused Officer. After receipt of the said papers from the Accused Officer, a note was put to PW4 and the Executive Engineer issued the proceedings. Those proceedings were sent to Deputy Executive Engineer for recording the entries in service register of PW1. After making those entries, the papers were transmitted to P.A.O. Therefore, his evidence shows that, on 03.05.2000, the Executive Engineer received the proceedings and option forms along with S.R. to P.A.O, Ananthapur, who after scrutiny returned it back to the Office of the Executive Engineer with some remarks, which were received, on 06.05.2000. Then, those papers were forwarded to Deputy Executive Engineer, who has to attend to the remarks of P.A.O.
23) In the cross-examination of PW4, it has been elicited that, the Deputy Executive Engineer is the competent officer to record the orders and proceedings in the service register of PW1. Ex.P2 is the file containing the proceedings issued by the Executive Engineer, dated 10.04.2000, fixing the pay of PW1. The proceedings show that, the Deputy Executive Engineer received it, on 11.04.2000, and the copy of the proceeding was marked to 21 PW1. There is also an endorsement in the said file to the effect that "condonation orders of the Chief Engineer are awaited for the broken period hence the normal increments are kept in abeyance". In-fact, these proceedings are to the knowledge of PW1, which is evident from the answers elicited from PW4, which are as under:-
"The dispatch register shown to me is of our office for the period from 01.01.2000 to 31.12.2000. It is Ex.D2. It is true as seen from the entry dt. 10.04.2000 in Ex.D2 dispatch register at Sl. No. 384, the pay fixation proceedings of PW1 shown dispatched and handed over first to PW1. Since on that day, the attenders are not available those proceedings were first handed over to PW1 under his signature in the meanwhile the sub division attender Kullaiappa came to our office and taken these proceedings and hence the signature of PW1 was struck off in that register at that place and the signature of Kullaiappa was obtained on 11.04.2000. The said relevant entry in the Ex.D2 dispatch register is Ex.D3. It is seen from Ex.P3 service register the Deputy E.E. entered the pay fixation proceedings of PW1 on 12.04.2000 and signed."
24) The evidence of PW4 also shows that, on 12.05.2000 itself, the Respondent/Accused Officer has put up a note to the Executive Engineer to retransmit the record to D.E.E. for complying the remarks of the P.A.O. The relevant evidence is as under:
"On the same remarks letter the A.O. put up a note on 12.05.2000 to the Executive Engineer to retransmit the record to D.E.E. for complying the remarks of the P.A.O."22
25) PW5 is the Deputy Executive Engineer, P.A.B.R. Sub- Division, No. IV, Ananthapur, under whom PW1 was working. The relevant portion in the evidence of PW5, with regard to compliance of the objections raised by P.A.O., is as under:-
"As seen from the objections of the P.A.O., I was asked to make necessary entries in Ex.P3 service register with regard to basic pay as on the date of option and allowances to be taken for fixation of pay. With the same endorsement of the P.A.O. the service register and papers are forwarded to me by the E.E. It is true, as seen from Ex.P3, I have not made such entries in the service register after receipt of the letter of E.E. to make entries. It is true the entry in the service register with regard to this has to be made by me as the D.E.E. It is true the objections raised by the P.A.O. cannot be complied with by the office of the E.E. It is true there is no delay in the office of the E.E. in processing the pay fixation of the PW1. All the correspondence between our office and office of the E.E. relating to the pay fixation of PW1 was within the knowledge of PW1. I have given evidence today by looking into the official records shown to me."
26) From the evidence of PW5 -the Deputy Executive Engineer, which is referred to above, it is very clear that, all the correspondence between the Office of the Deputy Executive Engineer and the Office of the Executive Engineer relating to pay fixation of PW1 was within the knowledge of PW1; secondly, the objections raised by P.A.O. cannot be complied with by the Office of the Executive Engineer and it is only he who has to deal with the objections. PW5 admits that, from Ex.P3 it is clear that, he 23 has not made such entries in service register, after receipt of letter from E.E. to make such entries. He further admits that, there is no delay in the office of the E.E. in processing the pay fixation of the PW1.
27) Further, PW7 -the investigation officer in his evidence admits that, the objections of P.A.O., have to be complied with only by the Deputy Executive Engineer and the Respondent/Accused Officer cannot do any favor to PW1 without the above referred objections of the P.A.O., being not complied with. The relevant admission in the evidence of the investigation officer is as under:
"It is true the said objections of P.A.O., have to be complied with only by the Deputy Executive Engineer. It is true the Accused Officer cannot do any favor to the complainant without the above referred objections of the P.A.O., not complied with and the entries are made on the service register."
28) As seen from the record, by 12.05.2000 itself, he has processed the papers received from the office of the Deputy Executive Engineer by putting his initial and placed it before the Executive Engineer, who in turn forwarded the same to the office of the P.A.O. along with service register. As the required information was not recorded in the service register, the office of P.A.O., transmitted the papers back to the office of the Executive Engineer, who in turn sent those papers to the office of the Deputy Executive [PW5] for want of necessary information and 24 endorsements. It has come on record that, the Deputy Executive Engineer has not carried out the objections raised by P.A.O., in their letter, dated 15.05.2000. That being the position and in view of the admissions elicited in the evidence of PW5, which this court has referred to earlier, it is very much clear and evident that, there is no favour which is pending before the Respondent/Accused Officer, and the papers of PW1, which are received by him were forwarded by 12.05.2000 itself to the Executive Engineer. This fact of forwarding the papers to Executive Engineer and then to P.A.O. and the return of papers from the Office of the P.A.O., were to the knowledge of PW1. Therefore, the first ground that there is an official favor pending before the Respondent/Accused Officer is answered against the prosecution.
29) Point (ii). Before dealing with the same, it would be useful to refer to the Judgment of the Hon'ble Apex Court in P. Satyanarayana Murthy v. District Inspector of Police and Anr, where the ingredients of Section 7, 13(1)(d)(i) and (ii) are very succinctly explained, which is as under:-
"The proof of demand of an illegal gratification is the gravamen of an offence under section 7 and sub-clauses (i) and (ii) of section 13(1)(d) of the PC Act. The relevant extract of the said decision is set out below:
"20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from 25 an accused without proof of demand would not establish an offence Under Section 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."26
30. Although the above proposition appears attractive, a closer examination of the aforesaid decisions clearly indicate that the same cannot be read as authorities for the proposition that demand of an illegal gratification is a necessary condition for convicting a public servant for an offence of misconduct, as contemplated under Section 13(1)(d) of the PC Act. This is for two reasons. First of all, the plain language of Section 13(1)(d) of the PC Act does not indicate that a demand of illegal gratification by the public servant is an essential ingredient of an offence of misconduct.
31. Secondly, a bare perusal of the judgments cited on behalf of the appellant indicates that in all those cases, charges against the accused were also framed under Section 7 of the PC Act. In terms of Section 7 of the PC Act, whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever, other than the legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in exercise of his official functions in favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, would be punishable for committing an offence under the said section. In other words, Section 7 of the PC Act refers to an offence of demanding or obtaining illegal gratification. In all the cases referred to on behalf of the appellant, the accused were charged with the offence of demanding/accepting illegal gratification. In addition, the accused were also charged with the offence under Section 13(1)(d) of the PC Act in conjunction with the offence under Section 7 of the PC Act. Clearly, in order to establish the offence in such cases, it would be necessary for the prosecution to establish that the accused had demanded or had obtained illegal gratification either himself or by any other person as the same is necessary for securing a conviction of an offence under Section 7 of the PC Act.
32. Apart from criminal misconduct being in conjunction of demand for illegal gratification, an offence under Section 13(1)(d) of the PC Act could also be established as a standalone offence. In Neera Yadav v. CBI (supra), the Supreme Court had examined the provisions of Section 13 of the PC Act as then in force and had 27 explained the ingredients necessary for commission of the said offence. Paragraphs 16 and 17 of the said decision are relevant and are set out below:
"16. Section 13 of the PC Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of "criminal misconduct". Sub-section (2) of Section 13 speaks of the punishment for such misconduct. Section 13(1)(d) read with Section 13(2) of the PC Act lays down the essentials and punishment respectively for the offence of "criminal misconduct" by a public servant. Section 13(1)(d) reads as under:
"13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct--
***
(d) if he--
i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"
17. A perusal of the above provision makes it clear that if the elements of any of the three sub- clauses are met, the same would be sufficient to constitute an offence of "criminal misconduct" under Section 13(1)(d). Undoubtedly, all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i), obtaining any valuable thing or pecuniary 28 advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct."
30) Keeping in view the above, I shall now deal with the evidence of PW1, as to whether there was any demand and acceptance of money.
31) As seen from the evidence on record, the entire case rests on the evidence of PW1. Except the evidence of PW1, there is no other independent evidence on record to show that the Respondent/Accused Officer demanded PW1 to pay bribe of Rs.500/- to process the pay revision. It is the evidence of PW1 that the Respondent/Accused Officer asked him to pay the amount in his office. None of the staff members were examined to prove that the Respondent/Accused Officer demanded PW1 to pay the bribe amount of Rs.500/-. Of-course, it is difficult to prove the same through independent witness as the demand of bribe would not be to the knowledge of other. But, it is to be noted that, in the First Information Report given by PW1, there is no reference to pendency of his pay revision papers. What all has been mentioned in the First Information Report is with regard to the incident which occurred prior to 25.05.2000. PW1, in-fact, admits that, his report is silent with regard to pay revision. Moreso, it is to the knowledge of PW1 that, on that day, his pay revision papers were also processed by the Respondent/Accused Officer. After issuing 29 the proceedings to Executive Engineer, the file of PW1 was sent to the Office of P.A.O. Ananthapur, who returned the same with some objections. The said file was pending as the Deputy Engineer did not comply with the objections raised by P.A.O. Office, Ananthapur. It appears that, knowing all these facts, PW1 intentionally suppressed the facts relating to movement of his files. Hence, his version has to be viewed with certain suspicion. Therefore, this court is of the opinion that, it may not be safe to accept the evidence of PW1 without any corroboration from independent sources in the facts and circumstances of the case, with regard to the demand made by the Respondent/Accused Officer, on 25.05.2000.
32) Point (iii) (Acceptance). Sri. S.M. Subhani, Standing Counsel for the Anti-Corruption Bureau, vehemently would contend that, once the money is recovered from the shirt pocket of the Respondent/Accused Officer and when the hands turn positive to phenolphthalein test, a presumption has to be drawn that the said money was accepted as bribe. In other words, his plea is, acceptance of money and recovery of the same from the possession of the Respondent/Accused Officer is sufficient to base a conviction. He relied upon the Judgments of the Hon'ble Supreme Court to show that there exits a presumption once it is proved that money was recovered from the Respondent/Accused Officer.
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33) Insofar as the theory of acceptance is concerned, as per the evidence of PW1, he went to the Office of the Respondent/Accused Officer and on the advice of the Respondent/Accused Officer, he sat on the stool besides the table of the Respondent/Accused Officer. On demand made by the Respondent/Accused Officer, PW1 took out the money from his shirt pocket and gave it to the Respondent/Accused Officer, who accepted the same with his right hand and kept it on the left shirt pocket. Immediately, thereafter, PW1 came out and gave a pre-arranged signal. Pursuant thereto, the trap party consisting of an Inspector and other mediators entered into the office, conducted test and recovered money from the shirt pocket of the Respondent/Accused Officer. It is no doubt true that, second mediator report is silent, with regard to the explanation alleged to have been given by the Respondent/Accused Officer, that the money was thrusted in his shirt pocket. Be that as it may, it is now suggested to PW1 that the money was forcibly thrusted in his pocket, which was denied by him.
34) The circumstance which requires consideration is the defense taken by the Respondent/Accused Officer, namely, that the money was thrusted into his pocket. Firstly, the Respondent/Accused Officer examined DW1 and DW2, who were working as Junior Assistant and attender in the Office of the Executive Engineer, H.L.C., Division, Ananthapur. According to 31 Ex.P7 [attendance register] both these witnesses attended the office, on 27.05.2000. The fact that, both DW1 & DW2 were present at the time of trap cannot be disputed, for the reason that, one of them, namely G. Srinivas, was cited as a witness in the charge-sheet, but, later given up by the prosecution. He was examined by the Accused Officer on his behalf as DW2. Both of them stated that, on 27.05.2000 at about 12.00 noon, PW1 came to the office. DW2 in his evidence deposed that, on that day, PW1 offered some amount to Respondent/Accused Officer in-spite of he refusing and, then PW1 thrusted the amount in the shirt pocket of the Respondent/Accused Officer, in-spite of resisting the same. It is to be noted here that, both these witness are Government employees and are speaking against the law enforcement agency knowing the consequences. Normally, no government employee would dare to speak against the A.C.B. authorities, unless it is true. Knowing as to what happened in the office, these two employees have come forward to speak against the prosecution and in favour of the Respondent/Accused Officer.
35) It is to be noted that the plea of thrusting of money in the pocket was taken from the beginning and it was not introduced at a belated stage.
36) PW3, one of the employee who was working in the office of the Respondent/Accused Officer, was examined to speak as to whether, there was demand and acceptance of money, as bribe, by 32 the Respondent/Accused Officer. His evidence show that, on the date of trap, at about 12.15 P.M., he saw PW1 coming to the seat of the Respondent/Accused Officer and sitting on a wooden stool by the side of the Respondent/Accused Officer and both were conversing and he was doing his routine work, at that time. After some time, PW1 left, then, A.C.B. officers entered the office.
37) In the cross-examination, PW3 admits that, the office tables of all the staff members are placed in the hall at some distance apart and there is no partition between one staff members to the other. He states that, he did not observe the Respondent/Accused Officer calling PW1 with loud voice while PW1 was leaving him. He further admits that, there was attender, by name, Prabhakar, who was [DW2]. He did not observe as to whether after PW1 left, the Respondent/Accused Officer called the said attender and asked him to him to call PW1 as he has just thrusted money in his pocket by force.
38) From the above, it is clear that, the plea taken by the Respondent/Accused Officer with regard to the thrusting was suggested to PW1 and PW3, but, both of them denied. At the same time, DW1 and DW2 who were working along with PW3 in the office and whose presence is proved by the evidence of PW3, categorically deposed that, the money was thrusted by PW1 and then left the office.
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39) At this stage, one other circumstance assumes lot of importance. In the 164 Cr.P.C., statement of PW1 recorded by the Judicial First Class Magistrate, Ananthapur, on 12.06.2000, PW1 stated that, after giving the pre-arranged signal, two Police Constables came to the room of the Respondent/Accused Officer, caught hold of the hands of the Respondent/Accused Officer and lifted him from the seat. As per the direction of the Deputy Superintendent of Police, Anti-Corruption Bureau and the mediators, he gave the amount to them and the mediators examined the currency notes. A perusal of the 164 Cr.P.C., statement, would reveal that, the Respondent/Accused Officer took out the tainted currency notes from his shirt pocket, before his hands were subjected to the chemical test, and under those circumstances, no significance can be attached to the chemical test conducted on the fingers of the Respondent/Accused Officer. Hence, recovery of the money from the possession of the Respondent/Accused Officer, under these circumstances, cannot be a ground to connect the Respondent/Accused Officer with the crime.
40) Coming to the Judgments relied upon by Sri. S.M. Subhani, Standing Counsel for the Anti-Corruption Bureau, namely, State of Andhra Pradesh v. R. Jeevaratnam1, it relates to a case where the money was recovered from the suitcase. The 1 AIR2005SC4095 34 explanation offered by the accused officer before the court was, he went into the bathroom of the hotel, the money was being kept in his suitcase. There was no explanation from the accused officer as to why he went to the hotel room, where the trap was laid on that day. Under these circumstances, the court invoked the presumption under Section 20 (1) and convicted the accused officer.
41) T. Shankar Prasad v. State of Andhra Pradesh2 is a case, where the money was recovered from A2, which was paid to him, at the instance of A1. Explanation offered by A2 about receipt of money was rejected. The money was recovered from A2. A belated and stale explanation was offered by A2 that the money was paid towards tax. This plea was rightly discarded as there was no tax due and on the contrary the complainant was entitled to some refund. On an overall consideration of the entire material, the Hon'ble Apex Court found that the High Court was right in convicting the appellant.
42) But, here, is a case, where the demand and acceptance appear to be doubtful, for the reason that, Ex.P1 itself is bereft of many details. Though, the amount alleged to have been demanded was for revision of pay, but, there is no reference to the same in the First Information Report, as admitted by PW1 and the Investigation Officer in their evidence. Secondly, the movement of 2 (2004)3SCC753 35 file of PW1 in the Office of P.A.O., was to the knowledge of PW1 and being aware that there is no favour, which the Respondent/Accused Officer could have done, lodged the report making false allegations excluding the crucial aspects of the matter, namely, the purpose for which the bribe was demanded in the report. Under those circumstances, the trial court rightly disbelieved the uncorroborated testimony of PW1, with regard to the demand, and accepted the evidence of DW1 and DW2, with regard to forcible thrusting of money, in the pocket of the Respondent/Accused Officer.
43) In Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjab3, the Hon'ble Apex Court held as under:-
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these 6 (2014) 13 SCC 55 two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."
44) It is also to be noted that, this being an appeal against acquittal, interference is impermissible, unless the judgment of acquittal tends to be perverse or unless the inferences drawn in 3 (2017) 8 Supreme Court Cases 136 36 acquitting the accused was not reasonable. [The State Rep.By Cbi, Hyderabad vs G.Prem Raj]4.
45) In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr.5, the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
46) Having regard to the law laid down by the Apex Court and since the evidence available on record is not cogent and convincing; this court is of the opinion that, the Judgment under challenge requires no interference.
47) In the result the appeal fails and it is accordingly dismissed, confirming the acquittal of the Respondent/Accused Officer for the offences punishable under Section 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, passed in C.C. No. 17 of 4 AIR2010SC793 5 (2006) 6 S.C.C. 39 37 2001, on the file of the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, on 03.04.2006.
48) Consequently, miscellaneous petitions pending, if any, shall stands closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR Date: 23.09.2020 SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Appeal No. 1207 of 2006 Date: .09.2020 SM.