Andhra Pradesh High Court - Amravati
The State Of A.P., Rep. By Inspector Of ... vs B.Venkateswara Rao on 24 February, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1381 OF 2007
Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau, Range-III,
Vijayawada. .... Appellant
Versus
B. Venkateswara Rao,
Mandal Parishad Development Officer,
Tiruvur Mandal, Tiruvur,
Krishna District. .... Respondent
DATE OF JUDGMENT PRONOUNCED : 24.02.2023
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
2. 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.1381/2007
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1381 OF 2007
% 24.02.2023
# Between:
State, Rep. by Inspector of Police,
Anti Corruption Bureau, Range-III,
Vijayawada. .... Appellant
Versus
B. Venkateswara Rao,
Mandal Parishad Development Officer,
Tiruvur Mandal, Tiruvur,
Krishna District. .... Respondent
! Counsel for the Appellant : Smt.A.Gayathri Reddy,
Learned Standing Counsel-
cum-Special Public Prosecutor
for ACB.
^ Counsel for the Respondent : Sri Marri Venkata Ramana,
Learned counsel.
< Gist:
> Head Note:
? Cases referred:
1. 1993 Supp (2) SCC 187
2. AIR 1974 SC 218
3. 1989 Supp (2) SCC 140
4. (1970) 3 SCC 772
5. (2022) SCC OnLine SC 1724
6. (2014) 13 SCC 55
7. (2015) 10 SCC 152
8. (2001) 1 SCC 691
This Court made the following:
3
AVRB,J
Crl.A. No.1381/2007
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1381 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), Range-III, Vijayawada through the Standing Counsel for ACB and Special Public prosecutor questioning the judgment in Calendar Case No.13 of 1999, dated 16.05.2005, on the file of the Court of Special Judge for SPE and ACB Cases, Vijayawada (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(1)(d) R/w. Section 13(2) of the Prevention of the Corruption Act, 1988 (for short, ‗the PC Act') and accordingly acquitted him of the charges 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, according to the charge sheet filed by Range Inspector-III, ACB, Vijayawada in Crime 4 AVRB,J Crl.A. No.1381/2007 No.8/ACB-VJA/98, is that the AO viz., Battina Venkateswara Rao, worked as Mandal Praja Parishad Development Officer i.e., Mandal Development Officer of Tiruvur Mandal Parishad of Krishna District. He is a ‗Public Servant' within the meaning of Section 2(c) of the PC Act. LW.1 - U.V.Sesha Rao is a resident of Tiruvur Village and Mandal of Krishna District. He is working as Headmaster at Parishad Elementary School Nadim Tiruvur. Prior to that, he worked as Headmaster in Mandal Praja Parishad Elementary School (MPES), Suravaram Village of Tiruvur Mandal. B. Venkateswara Rao, MPDO i.e., AO transferred LW.1 on 10.06.1997 vide his order in R.C.No.145/97-C, from MPES, Suravaram to Nadim Tiruvur Elementary School as Headmaster. Having relieved himself on 30.06.1997, LW.1 visited MPES Nadim Tiruvur to join in the duty where he came to know that the orders of MPDO were cancelled as such he was not allowed to join. Then, LW.1 approached the Andhra Pradesh Administrative Tribunal at Hyderabad (for short, ‗the Tribunal') with his grievance. The Tribunal suspended the cancellation transfer order of LW.1, issued by AO on 08.07.1997. Accordingly, LW.1 joined at MPES Nadim Tiruvur and sent his joining report through registered post to the AO on 11.07.1997. Thereafter, the Tribunal passed its final order on 30.03.1998 vide orders in O.A. No.3871 of 1997 by quashing 5 AVRB,J Crl.A. No.1381/2007 the cancellation transfer order issued by the MPDO on 29.06.1997. Then, LW.1 met the AO and represented him that he sent a representation to him through registered post for giving instructions to the concerned for handing over Headmaster charge to him at Nadim Tiruvur MPES basing on the Tribunal order. AO did not issue any instructions. Again, LW.1 met the AO at his office on 06.04.1998 and requested him to give proper orders basing on the final order of the Tribunal in O.A. No.3871 of 1997 and for the payment of his salary bills. Then, the AO demanded LW.1 to pay Rs.5,000/- as bribe for passing an order for the payment of his salaries and also for implementation of the final order of the Tribunal in his favour. Then, LW.1 explained AO about his inability for paying the bribe since he did not receive his salaries and he was in troubles. AO did not hear him. Again, he met the AO on 28.04.1998 at his house and repeated his request to do justice to him. AO reiterated his earlier demand of bribe of Rs.5,000/- and asked LW.1 to bring the demanded bribe of Rs.5,000/- on 29.04.1998 and to pay him. As he was not willing to pay the demanded bribe amount, he presented a written report to LW.14, Range Inspector-III, ACB, Vijayawada on 28.04.1998 at 02:00 p.m. LW.14, after fulfilling necessary formalities, submitted the same to Deputy Superintendent of Police (DSP), ACB, 6 AVRB,J Crl.A. No.1381/2007 Vijayawada (LW.13) for taking further action. LW.13 - DSP, registered the report of LW.1 as a case in Crime No.8/ACB- VJA/98 on 29.04.2008 at 05:15 a.m. and took up further investigation. On 29.04.1998 at about 09:45 a.m. LW.1 met the AO at his residential quarter No.4-372 situated at Santhinagar in Tiruvur and requested the AO to give necessary orders for his continuation at Nadim Tiruvur Elementary School and also for the payment of his pending salary bills. Then, AO asked LW.1 whether he brought the demanded bribe amount of Rs.5,000/- or not. AO further demanded him to pay the bribe amount. When LW.1 offered to pay the bribe of Rs.5,000/- to AO, he accepted the bribe of Rs.5,000/- as illegal gratification other than the legal remuneration with his right hand and kept the same on the bed underneath the pillow. AO informed LW.1 that a favourable order would be issued in favour of him soon.
4. The Scientific and Chemical Tests conducted on the right hand fingers of AO proved positive. At the instance of AO, tainted amount was recovered from the underneath the pillow placed on the bed of AO. Serial numbers of the tainted amount were found tallied with serial numbers of currency notes produced by LW.1 before the mediators (LW.10 and LW.11) on 29.04.1998 during the 7 AVRB,J Crl.A. No.1381/2007 pre-trap proceedings. Connected records were seized. The AO failed to offer his explanation to the notice, dated 01.08.1998. Government of Andhra Pradesh, being the competent authority to remove AO from service vide G.O.Ms.No.188 of Panchayat Raj and Rural Development, Estt.VII, dt.30.04.1999, accorded sanction to prosecute the AO for the offences under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act.
5. The learned Special Judge took cognizance of the case under the above provisions of law. The learned Special Judge, after appearance of the accused and after completing the necessary formalities under Section 207 Cr.P.C and by following the warrant procedure, framed charges under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act against the AO, read over and explained the same to him in Telugu for which he 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 13 and got marked Exs.P-1 to P-35 and during the course of cross-examination of PW.1 Ex.D-1 was marked.
8
AVRB,J Crl.A. No.1381/2007
7. After closure of the evidence of the prosecution, the 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 got filed a written statement contending, in substance, that on the date of trap, PW.1 came to his quarter and when he was about to give the tainted amount forcibly but he (AO) pushed it with his right hand, which resulted the tainted amount fell on blanket which is on the cot and when he (AO) raised cries without hearing his words, PW.1 hurriedly left. So, he never demanded or accepted the bribe amount from PW.1. The transfer order was cancelled. With the help of ACB, PW.1 filed a false case against him. In support of the defence, AO examined DWs.1 and 2 and got marked Ex.X-1 during the evidence of DW.1.
8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, gave findings that the Accused Officer was a Public Servant within the meaning of Section 2(c) of the PC Act and there was a valid sanction to prosecute the AO. The learned Special Judge with regard to the allegations of the prosecution under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act, having given findings that the 9 AVRB,J Crl.A. No.1381/2007 prosecution has proved the demand of bribe on 06.04.1998 and demand and acceptance of bribe by the AO on 29.04.1998 but held that prosecution failed to prove the demand on 28.04.1998. The learned Special Judge further gave finding that the AO probabilized his defence theory as such acquitted the Accused Officer.
9. The State, having felt aggrieved of the judgment of the Court below in C.C. No.13 of 1999, 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 before the Court below has proved that the AO was a public servant within the meaning of Section 2(c) of the PC Act and whether the prosecution obtained a valid sanction to prosecute the AO for the charges framed?
2) Whether the prosecution has proved before the Court below that the official favour in respect of the work of PW.1 was pending with AO as on 06.04.1998, 10 AVRB,J Crl.A. No.1381/2007 28.04.1998 and 29.04.1998 in the manner as alleged by the prosecution?
3) Whether the prosecution before the Court below has proved that on 06.04.1998, 28.04.1998 and 29.04.1998 AO demanded PW.1 to pay bribe of Rs.5,000/- and in pursuance of the demand, accepted the amount from PW.1 and as such whether the prosecution proved the charges framed against the accused beyond reasonable doubt?
4) Whether there are any grounds to interfere with the judgment of acquittal of the learned Special Judge?
11. POINT Nos.1 to 4: Insofar as Point No.1 is concerned, the findings of the learned Special Judge that AO was a public servant within the meaning of Section 2(c) of the PC Act and the prosecution obtained a valid sanction to prosecute the accused are not at all challenged before this Court by either side. However, this Court considered the evidence available on record. Absolutely, there is no dispute, whatsoever, that AO was working as Mandal Parishad Development Officer, Tiruvur Mandal, Krishna District as on 06.04.1998, 28.04.1998 and 29.04.1998 and he was drawing salary from the account of the Government. The said fact was not 11 AVRB,J Crl.A. No.1381/2007 in dispute. Apart from this, prosecution examined PW.11 - Section Officer to prove the sanction under Ex.P-30. A perusal of Ex.P-30 sanction order vide G.O.Ms.No.188, dated 30.04.1999, goes to show that the sanctioning authority, having considered the material sent by the ACB, passed a speaking order according permission to ACB to prosecute the AO under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act. There remained nothing in the cross-examination part of PW.1 to disbelieve his testimony. PW.11 testified that he is personally acquainted with the file relating to Ex.P-30. In my considered view, the prosecution proved a valid sanction and the learned Special Judge regarding this point gave findings with valid reasons. The above said findings given by the learned Special Judge are not under challenge in this Appeal either by the appellant or by the respondent (AO) during the course of hearing of the Appeal.
12. Now, I would like to deal with Point Nos.2 to 4. Smt. A. Gayathri Reddy, learned Standing Counsel-cum-Special Public Prosecutor, appearing for the appellant-State, canvassed the case of the prosecution first and she would contend further that there was no dispute about the factum of request application of PW.1 under Ex.P-2. AO issued the proceedings transferring PW.1 to 12 AVRB,J Crl.A. No.1381/2007 Nadim Tiruvur. PW.1 relieved himself on the evening of 30.06.1997 and when he tried to join at the place, he was not allowed to join. In fact, PW.1 was transferred to a post which was falling vacant on 30.06.1997. PW.1 was not allowed to join there on the ground that the transfer order was cancelled on 29.06.1997. Felt aggrieved of the transfer cancellation order, PW.1 approached the Tribunal and obtained suspension of the order dated 29.06.1997, cancelling the transfer order of PW.1. Having got a favourable order, PW.1 reported for his duties at Nadim Tiruvur. He was not handed over any charge and he was not entrusted with any duties. However, he was going to the school regularly. He was submitting his representations duly to allow him to take charge and also praying for processing of his salary bills. Ultimately, the Tribunal quashed the transfer cancellation order of AO. Then, PW.1 communicated the same to AO in writing on 04.04.1998 and further personally met the AO on 06.04.1998 to allow him to continue his work by handing over charge and also for processing his salary bills. Then, the AO demanded the bribe. In spite of the cogent evidence adduced by the prosecution, the learned Special Judge, erroneously and on the un-reasonable grounds, extended an order of acquittal. Prosecution examined PW.2, the in-charge Headmaster, PW.3, PW.4, PW.5 and PW.6 to 13 AVRB,J Crl.A. No.1381/2007 prove the official favour pending with AO in respect of the work of PW.1. Even prosecution examined PW.9, the then Mandal Praja Parishad President, Tiruvur to prove the facts. The learned Special Judge did not give positive findings by looking into the evidence in this regard in respect of the official favour of PW.1 to be dealt with by the AO as on the date of trap and prior to that. Simply because the AO filed a Writ Petition before the erstwhile High Court of Andhra Pradesh at Hyderabad and obtained an order of status- quo, with regard to the final orders passed by the Tribunal, it cannot be held that official favour was not pending. In fact, even as on the date PW.1 was working in Nadim Tiruvur only. His salary bills were pending since long. She would further contend that the learned Special Judge gave categorical findings that the prosecution clearly proved the demand dated 06.04.1998 made by AO to PW.1 to pay bribe of Rs.5,000/- and further proved the demand dated 29.04.1998 and acceptance of bribe by AO from PW.1 during the post trap proceedings. On erroneous reasons, the learned Special Judge gave findings that the prosecution did not prove the demand dated 28.04.1998. Without looking into the ground realities and with unreasonable findings, the learned Special Judge believed the defence of the accused regarding the alleged thrusting theory. The judgment of the learned Special 14 AVRB,J Crl.A. No.1381/2007 Judge is not sustainable under law and facts. The conduct of AO is quietly evident from the evidence of the prosecution witnesses that when the subordinates of AO put up a note about the request application of PW.1, AO used to write it as lie over. She would further submit that the evidence on record is sufficient to convict the accused for the charges as such Appeal is liable to be allowed so as to convict the AO.
13. Sri Marri Venkata Ramana, learned counsel appearing for the respondent (AO), would contend that to succeed in the case of the prosecution with regard to the charges under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act, prosecution should prove the pendency of the official favour in respect of the work of PW.1 and further to prove the so called demands, dated 06.04.1998, 28.04.1998 and 29.04.1998. Though PW.1 got suspension of cancellation of his transfer order, dated 29.06.1997, as admitted by him in cross-examination, there was no order from his superiors asking him to join at Nadim Tiruvur. Without there being any order he opted to join there. Learned counsel would further contend that the so called demands dated 06.04.1998, 28.04.1998 and 29.04.1998 are all false. As on the alleged dates already AO filed a Writ Petition and got an interim order under 15 AVRB,J Crl.A. No.1381/2007 Ex.D-1 directing the status-quo. So, as the matter was already subjudice before the High Court in Writ Petition, it cannot be held any official favour in respect of the work of PW.1 was pending with AO. Insofar as the alleged demands dated 06.04.1998, 28.04.1998 and 29.04.1998 are concerned AO denied the same during the course of trial. However, the findings given by the learned Special Judge that prosecution proved the demand dated 06.04.1998 and further demand dated 29.04.1998 and that AO accepted the bribe amount from PW.1 are not at all tenable. These findings given by the learned Special Judge are liable to be set-aside by this Court even in dealing with the Appeal against the acquittal. With regard the demand dated 28.04.1999 the learned Special Judge rightly held that on that particular day AO was at Vijayawada attending a meeting. There were findings that PW.1 due to his enthusiasm and to strengthen the allegations under Ex.P-1, invented the theory of demand dated 28.04.1998. AO successfully dislodged the presumption under Section 20 of the PC Act and spontaneous explanation in the post trap proceedings was duly considered by the learned Special Judge and the learned Special Judge believed the thrusting theory as projected by AO with valid reasons. Though there were adverse findings against AO with regard the demands dated 06.04.1998 and 29.04.1998 but AO could 16 AVRB,J Crl.A. No.1381/2007 successfully dislodge the presumption under Section 20 of the PC Act with consistent evidence. He would further submit that in a case under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act, the prosecution should stand on its own legs. In support of the contention, he would rely upon the decisions of the Hon'ble Apex Court in Shantilal Kashibhai Patel v. State of Gujarat1 and Darshan Lal v. The Delhi Administration2. While concluding, he would further submit that the AO was retired even by the time of judgment of the trial Court and now he might be aged around 80 years suffering with serious health problems as such the Court may take into consideration the above while adjudicating the issue.
14. Before going to appreciate the contentions of both the parties, I would like to refer here certain findings given by the learned Special Judge in the impugned judgment. It is a fact that the learned Special Judge did not look into the aspect in proper perspective as to whether the official favour in respect of the work of PW.1 was pending with AO as on the date of trap and prior to the trap. Apart from this, the learned Special Judge while dealing with the contention of the prosecution with regard to the 1 1993 Supp (2) SCC 187 2 AIR 1974 SC 218 17 AVRB,J Crl.A. No.1381/2007 allegations of demand of bribe 06.04.1998 analyzed the evidence on record at Para Nos.42, 43, 44, 45, 46, 47 of judgment and concluded at Para No.48 as follows:
"48. For the above reasons, I hold that the prosecution established the demand dated 6-4-1998 from the evidence of P.W.1, which is consistent, corroborate with Ex.P-1, Ex.P-4 and Ex.P-7 164 Cr.P.C. statement which was recorded by the Magistrate at the earliest point of time."
15. Now, coming to the allegations of the prosecution with regard to the demand, dated 28.04.1998, the findings are at Para No.55 of judgment and it is appropriate to refer here the substance of the findings:
"55....................On scrutiny of the evidence of P.W.1 and for the above reasons, it appears to me that since A.O filed writ petition for quashing the orders of the Honourable A.P. Administrative Tribunal and moved the application for interim orders to stall the proceedings of the Tribunal, there is every possibility that in order to create some hurdles or threat and further in order to strengthen his Ex.P-1 report P.W.1, out of enthusiasm, make a mention in Ex.A-1 that A.O. demanded bribe amount when he approached him."18
AVRB,J Crl.A. No.1381/2007
16. With regard to the allegations of demand and acceptance of bribe during the post trap on 29.04.1998, the learned Special Judge analyzed the evidence at Para Nos.56, 57, 58, 59, 60, 61, 62, 63 and 64 of judgment and upheld the contention of the prosecution. The conclusion with regard to the demand dated 29.04.1998 during the post trap and acceptance of the bribe by AO at Para No.64 is as follows:
"64. ..............There is ample evidence to show what was recovered from A.O. is illegal gratification, which he was not legally entitled from P.W.1 and he accepted the same for showing an official favour of processing the issuance of salary bill and for giving posting orders to P.W.1."
17. Ultimately, while dealing with the presumption under Section 20 of the PC Act, looking into the thrusting theory, the learned Special Judge upheld the contention of AO. Basically the accurate findings of the learned Special Judge with regard to the demand dated 06.04.1998 and further demand on 29.04.1998 and acceptance of bribe does not reconcile with the findings while upholding the case of AO regarding the thrusting theory. The prosecution challenged the findings of the learned Special Judge extending an order of acquittal. Even the learned counsel for the 19 AVRB,J Crl.A. No.1381/2007 respondent (AO) questioned the findings of the learned Special Judge in upholding the case of the prosecution with regard to the demands dated 06.04.1998 and 29.04.1998 and consequent acceptance of bribe.
18. 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 Mathews 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 3 1989 Supp (2) SCC 140 4 (1970) 3 SCC 772 20 AVRB,J Crl.A. No.1381/2007 to reach a different conclusion on the basis of the material on record‖.
19. Keeping in view of the above, the only course left open to the Court is to re-appreciate the entire evidence on record and to decide the matter.
20. PW.1 is the de-facto complainant. PW.2 is the then in charge Headmaster in Nadim Tiruvur. PW.3 is the then Junior Assistant in Tiruvur MPDO Office. PW.4 is the then MEO of Tiruvur Mandal. PW.5 is the then Junior Assistant in Tiruvur Mandal Praja Parishad Office. Prosecution examined PW.6, the Secondary Grade Teacher, Nadim Tiruvur Elementary School, who did in charge duties as on 30.06.1997. Prosecution further examined PW.9, the then MPP President. Prosecution examined the above witnesses to prove that the official favour in respect of the work of PW.1 was pending with AO.
21. Coming to the testimony of PW.1 on material aspects, his evidence is that during the year 1997-98 he worked as Headmaster in Mandal Praja Parishad Elementary School, Suravaram Village of Tiruvur Mandal. He know AO. AO transferred him on 10.06.1997 from Survaram Elementary School to Nadim- 21
AVRB,J Crl.A. No.1381/2007 Tiruvur Elementary School. He was directed to join as per the orders of transfer on 30.06.1997 after retirement of one R. Nagabhushanam, who was working by then. So, he was relieved on 30.06.1997 and went to Nadim-Tiruvur Elementary School in order to join, where he came to know that his earlier order was cancelled by AO and he was not allowed to join. He met the AO and enquired the reason for cancellation of the transfer order. AO did not give proper reason. He approached the Tribunal with grievance and the Tribunal suspended the cancellation of transfer order issued by AO. The said interim order was dated 08.07.1997. Then, he joined at MPES, Nadim Tiruvur. By then, LW.6 - Jonnalagadd Durga Bhavani was in charge Headmistress. She refused to hand over charge since she did not receive any instructions from her superior authorities. However, on joining, he sent his joining report through registered post to AO. After joining in duty, he was not allowed to sign in the attendance register by the in charge headmistress. Then, he opened a new attendance register and used to sign in the register regularly, whenever he attended the school. Accordingly, he attended the school for about 10 months. Every month he used to prepare his salary bills and submit the same to the AO, which were not approved and as such his salary was not paid. On 30.03.1998, the Tribunal passed its 22 AVRB,J Crl.A. No.1381/2007 final order quashing the cancellation transfer order issued by AO. On 06.04.1998, he met the AO at his office and requested AO to give proper orders by virtue of the orders of the Tribunal and for payment of his arrears of salary, AO demanded bribe of Rs.5,000/- for passing orders for payment of the salary and for implementation of the official orders of the Tribunal, failing which he would approach the High Court against the orders of the Tribunal. He expressed his inability to do so but AO did not hear him. When he met AO on 28.04.1998, AO again demanded him Rs.5,000/-. As he was not willing to do so, he approached the ACB on the same day. Ex.P-1 is his report. Ex.P-2 is representation submitted to AO on 22.05.1997 requesting for transfer. Through his evidence further Ex.P-3 and Ex.P-4 the representations dated 09.07.1997 and 04.04.1998 and Ex.P-5 copy of representation and Ex.P-6 two representations dated 11.07.1997 and 14.07.1997 are marked. His evidence relating to pre trap and post trap will be dealt with hereinafter.
22. As seen from Ex.P-2, which is request transfer application of PW.1 before MPDO, Mandal Parishad, Tiruvur which is enclosed with the application for transfer in proforma opting four places for transfer, there is no dispute that in pursuance of the request 23 AVRB,J Crl.A. No.1381/2007 under Ex.P-2, the transfer order in Ex.P-9 made up file was issued by AO on 10.06.1997. So, according to it, PW.1 was transferred to Elementary School Nadim Tiruvur in the retirement vacancy going to arise on 30.06.1997 with direction to PW.1 to hand over the charge on 30.06.1997 and take new charge on the same day. There is also no dispute that on 29.06.1997, AO passed an order canceling the transfer proceedings dated 10.06.1997, which is in Ex.P-9 made up file. There is also no dispute that PW.1 relieved himself on 30.06.1997 and when he made an attempt to report at Nadim Tiruvur he was not allowed to do so. There is no dispute that even the cancellation transfer order was served on PW.1 on 30.06.1997 in the evening only as per PW.3. There is no dispute that aggrieved of the proceedings dated 29.06.1997, PW.1 approached the Tribunal and got suspended the order dated 29.06.1997. The said suspension order was passed by the Tribunal on 08.07.1997. There is no dispute that consequent upon the order of the Tribunal suspending the order dated 29.06.1997, the original transfer order dated 10.06.1997 was restored. There is no further dispute that on the strength of it, PW.1 joined at Nadim Tiruvur School. There is also no dispute that, after joining for duties, PW.1 used to make correspondence with AO. There is no dispute that he submitted a joining report 09.07.1997 enclosing a 24 AVRB,J Crl.A. No.1381/2007 copy of the Tribunal order in Ex.P-3 with in charge Headmistress. He requested the in charge Headmistress to hand over to him the duties along with the charge list. Apart from this, he submitted a joining report to AO also under Ex.P-6 on 11.07.1997. He made a request to AO to pay his salary. Ex.P-5 was submitted for December, 1997 stating that since 6 months he was sending salary bills every month but he was not paid any salary.
23. Coming to Ex.P-1, it was the report lodged by PW.1 before the ACB on 28.04.1998. In Ex.P-1 he referred that he is working as Headmaster since 10 months in MPE School, Nadim Tiruvur and prior to that he worked as Headmaster in MPPS, Suravaram. He relieved himself on 30.06.1997 as per the transfer proceedings dated 10.06.1997 and that when he proceeded to report at Nadim Tiruvur, he was not allowed to join. Then, he filed a case before the Tribunal and got temporary suspension of cancellation transfer orders on 08.07.1997 and he reported to duty on 11.07.1997 at Nadim Tiruvur School and sent his joining report by registered post and still he is there. The Tribunal passed final orders on 30.03.1998 by quashing the cancellation transfer order dated 29.06.1997 and that later he met AO requesting to allow him to do certain things and also AO did not issue any order and 25 AVRB,J Crl.A. No.1381/2007 he demanded bribe of Rs.5,000/- to approve his salary bills and pass appropriate orders. He further referred the demand dated 28.04.1998. So, the sequence of events that were narrated in Ex.P-1 is in tune with the documents referred to above by this Court in the discussion supra.
24. During the course of cross-examination of PW.1, he admitted that the Tribunal passed the order on 08.07.1997 suspending the cancellation transfer order dated 29.06.1997. There is no specific direction in that order directing to join him on duty at Nadim Tiruvur. There is no order from his superior authorities to join in duty at Nadim Tiruvur. It is true that he did not hold any classes during the period of 10 months. He was present when the MEO inspected the school.
25. It is to be noticed that when the order of AO dated 29.06.1997 canceling the transfer order was suspended, the order of AO dated 10.06.1997 was restored to operation. By 08.07.1997, PW.1 was not working in Suravaram as he was relieved on 30.06.1997. By virtue of the orders dated 08.07.1997, the order dated 10.06.1997 was restored. So, PW.1 was bound to follow the order dated 10.06.1997. Under the circumstances, there is no merit in the cross-examination of PW.1 as to whether there was 26 AVRB,J Crl.A. No.1381/2007 any order from the superior authorities to join duty at Nadim Tiruvur.
26. Now, coming to the evidence of PW.2, the in charge Headmistress, she categorically testified that he worked as teacher in Nadim Tiruvur Elementary School and after retirement of one Nagabhushanam, she was placed in charge Headmaster. She is aware that PW.1 was transferred to their school as Headmaster but she did not receive any instructions from AO. She did not hand over the charge to Headmaster i.e., PW.1 in spite of his requests. PW.1 used to attend the school regularly. She does not know whether PW.1 maintained separate attendance register. During the course of cross-examination, she admitted that though the President of MPP is the competent authority to the transfers but the transfer will be issued in the name of MDO. She favoured one answer in favour of AO to the effect that PW.1 used to attend the School 4 days per week. Learned Special Public Prosecutor cross-examined her and elicited that she stated before the DSP under Ex.P-10 that PW.1 used to attend the school regularly. So, it is clear that PW.1 was attending the school regularly right from 08.07.1997 and in spite of the requests of PW.1, PW.2 was not in a 27 AVRB,J Crl.A. No.1381/2007 position to hand over the charge for want of instructions from the AO.
27. It is evident from the evidence of PW.3 also that PW.1 was transferred to the post at Nadim Tiruvur in the retirement post to be fallen vacant on 30.06.1997 but AO cancelled the said transfer order on 29.06.1997. He testified that PW.1 approached the Tribunal and got suspension of the transfer cancellation order and PW.1 sent his joining report. His evidence is categorical further that at the specific instructions of AO, he (PW.3) approached the Standing Counsel of the Tribunal for clarification and the legal advisor gave his opinion to continue PW.1 as Headmaster at Nadim Tiruvur. Accordingly, after obtaining legal opinion, he placed the orders with a note before the AO but the AO endorsed on his note as to lie over the file till further orders are received from the Court. He further testified that PW.1 used to send his monthly pay bills for sanction to the AO. He further testified that after obtaining legal opinion from the Standing Counsel of the Tribunal and as per the instructions of AO, he sent a letter to the Chief Executive Officer for clarification to pass the bills relating to PW.1 and Ex.P-11 is the said letter dated 19.09.1997 along with the note.
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28. During the Course of cross-examination, his evidence remained unchallenged. It is not the defence of AO that PW.3 deposed false. His evidence was not at all impeached in any way. So, the fact is that though PW.3 got a legal opinion on the instructions of AO to continue PW.1 at Nadim Tiruvur and a note was placed before AO, he simply endorsed to lie over.
29. It is the evidence of PW.4, the then MEO, Tiruvur that previously PW.1 was transferred to Nadim Tiruvur vide order dated 10.06.1997 and later the said order was cancelled and it was served on PW.1 on 30.06.1997 at about 03:00 p.m. and PW.1 approached the Tribunal and the Tribunal suspended the transfer cancellation order dated 29.06.1997. The specific evidence of PW.4 is also that AO referred the matter to legal opinion, who advised to implement the order of the Tribunal. So, he (PW.4) placed a note before AO for his approval but the AO endorsed on the note file to lie over until further orders received from the Court. The said endorsement can be seen as Ex.P-17. He further testified that on 31.10.1997 he inspected the Nadim Tiruvur Elementary School and PW.1 was in the verandah of the School by maintaining separate attendance register. On enquiry with the teachers, he came to know that PW.1 is regularly attending the school and he 29 AVRB,J Crl.A. No.1381/2007 incorporated the same in his report under Ex.P-8 and the relevant entry is noted at Page Nos.68 and 69 of Ex.P-8. He sent his report to AO.
30. During the course of cross-examination, he deposed that he did not record the statement from PW.1. Whatever the reason may be for the visit of PW.1 to Nadim Tiruvur School, he categorically testified that his enquiry reveals that PW.1 is attending the school regularly by sitting in the verandah. It is not the defence of AO that PW.4 deposed false. His evidence was not impeached during the course of cross-examination.
31. The evidence of PW.5, the then Junior Assistant in MDO office is that when PW.3 was on leave for a period of two days i.e., on 09.06.1997 and 10.06.1997, he put up the transfer orders of PW.1 along with others and AO approved it and later he came to know about the trap.
32. Coming to the evidence of PW.6, she was the in charge Headmaster who was retired on 30.06.1997 and she was placed as in charge from 01.07.1997 to 17.07.1997. She know PW.1 and AO. She received Ex.P-3 by way of registered post on 10.07.1997 at about 01:00 p.m. She addressed a letter to MPDO on 11.07.1997 30 AVRB,J Crl.A. No.1381/2007 that PW.1 approached her to hand over the charge. Ex.P-19 is the said letter, dated 11.07.1997.
33. It is evident further from the evidence of PW.9, a crucial witness to the case of the prosecution, that he was the MPP President of Tiruvur Mandal. He know PW.1 and AO. He testified that PW.1 was transferred Suravaram Elementary School to Nadim Tiruvur Elementary School in the vacant post which would arise on 30.06.1997 as Headmaster. Basing on the notes put up by MDO and MEO, he used to approve them. Later, he cancelled the said transfer order of PW.1 on 29.06.1997 under Ex.P-14. He instructed AO to obtain legal advice with regard to the orders from the Tribunal. The legal advisor opined that PW.1 transfer can be effected. However, they filed Writ Petition against the final orders of the Tribunal in O.A. No.3871 of 1997. Later, he came to know that AO was trapped.
34. Learned Special Public Prosecutor cross-examined PW.9 as he did not support the case of the prosecution on certain aspects and he denied that he stated before ACB as in Ex.P-24 that he know that PW.1 was not paid his salary from 01.07.1997 onwards and that he is deposing false.
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35. Basing on the evidences of PW.2, PW.3, PW.4, PW.5, PW.6 and PW.9, there was no dispute that after obtaining an order of transfer cancellation order dated 29.06.1997, AO reported to his duty at Nadim Tiruvur School. It may be on 09.07.1997 and if not must have been on 11.07.1997. The request of PW.1 by making further correspondences with AO was that he was to be given charge and further the pay bills which were being submitted by him from Nadim Tiruvur were not processed. The evidence of PW.4 is very categorical that he inspected Nadim Tiruvur School and found PW.1 in verandah by putting his signature in a separate attendance register. It is to be noticed that it is a case where PW.1 felt aggrieved of the order, dated 29.06.1997, approached the Tribunal and obtained interim suspension of that order as such on the strength of the order dated 10.06.1997 he reported for duties at Nadim Tiruvur school. There is no dispute that PW.1 used to correspond with AO in this regard. The very allegation in Ex.P-1 is that even as on 11.07.1997, nobody handed over any charge to PW.1 and even he was not allowed to sign in the attendance register as such he opened an attendance register and used to sign in it every day. The fact that PW.1 was regularly attending the duties was clearly proved by the prosecution by virtue of the evidence of PW.2 and PW.4. When some of the subordinate 32 AVRB,J Crl.A. No.1381/2007 employees in the office of AO basing on the representations of PW.1 got instructions from the AO to obtain a legal opinion and when the legal opinion was given in such a fashion that PW.1 can be continued at Nadim Tiruvur and when a note was submitted before AO, he simply made an endorsement to lie over. All this goes to show categorically that PW.1 reported for duties at Nadim Tiruvur but he was not allowed to take the charge of the Headmaster and even he was not allowed to sign in the attendance register but he was attending the school regularly. The AO had knowledge that PW.1 was relieved on 30.06.1997 and his order dated 29.06.1997 was suspended. He had knowledge that the order dated 10.06.1997 had come into force which enabled PW.1 to report for duties at Nadim Tiruvur. He had knowledge that PW.1 was submitting his salary bills from Nadim Tiruvur. So, it is a case where a public servant i.e., PW.1 was attending the school without being entrusted with any duties whatsoever by his superior officers like AO. So, undoubtedly, as on 06.04.1998, the official favour in respect of the work of PW.1 to be done by AO was pending with AO. It is brought in evidence by virtue of Ex.D-1 that AO approached the erstwhile High Court of Andhra Pradesh at Hyderabad in Writ Petition No.10062 of 1998 and filed W.P.M.P. No.12226 of 1998 and obtained an order of status-quo on 33 AVRB,J Crl.A. No.1381/2007 16.04.1998. W.P. No.10062 of 1998 was filed challenging the order, dated 30.03.1998, of the Tribunal in O.A. No.3871 of 1997. Ex.D-1 was marked during the cross-examination of PW.1. So, the order under Ex.D-1 was only a status-quo existing as on that day. There is no dispute that as on 16.04.1998 AO was working in a primary school at Nadim Tiruvur and his request for his salaries from the date of joining there were pending with AO. Hence, Ex.D-1 cannot be taken as a factor to show that official favour in respect of the work of PW.1 was not pending with AO. PW.1 during cross-examination deposed that the High Court of A.P. set-aside the final orders passed by the Tribunal. The above was only subsequent to the trap as such it will have no bearing on point Nos.2 to 4.
36. Apart from this, it is relevant to look into Exs.P-11 and P-17. As seen from the evidence of PW.3, he made his effort to convince the AO by getting even a legal opinion, at the instructions of AO, and legal opinion was to continue PW.1 as Headmaster in Nadim Tiruvur but AO endorsed on the note file to lie over till further orders are received from the Court. So, AO was not willing to even to follow the legal advice. As evident from Ex.P-11, AO addressed a letter, dated 19.09.1997, to the Chief Executive Officer, Zilla 34 AVRB,J Crl.A. No.1381/2007 Parishad, Krishna referring his order dated 10.06.1997 transferring PW.1 to Nadim Turuvur and subsequent cancellation of his transfer order, dated 29.06.1997, and receipt of cancellation order by PW.1 in the evening at 04:00 p.m. and PW.1 approaching the Tribunal and getting an interim suspension of the cancellation of transfer order dated 29.06.1997 etc. He found fault with the action of PW.1 in making a joining report on 11.07.1997 and his submitting pay bills for processing the same. AO observed that the conduct of PW.1 was against the code of conduct. It is to be noticed that when PW.1 obtained a remedy from the Tribunal suspending the order, dated 29.06.1997. thereby in pursuance of the earlier order, dated 10.06.1997, reported for his duties at Nadim Tiruvur, it was the bounden duty of AO to make necessary arrangements so as to direct the concerned to hand over the charge to PW.1 and entrust him the duties to be performed. So, in my considered view, Ex.P-11 would not come to the defence of AO in any way. According to the evidence of PW.4, he also made efforts before AO for approval to implement the order of the Tribunal by taking legal opinion, at the instruction of AO, but the AO endorsed on the file to lie over till further orders are received. As seen from Ex.P-17, the endorsement of AO, it was dated 28.07.1997. The endorsement of AO was passed subsequent to 35 AVRB,J Crl.A. No.1381/2007 obtaining the legal opinion. So in spite of the legal opinion in favour of PW.1, obtained by the subordinates of AO, that too at the instructions of AO, he ignored the same and attributed any amount of illegality against PW.1 by virtue of Ex.P-11. All this reflects the conduct of AO to evade his duties to attend the work relating to PW.1 even much prior to Ex.P-1. Viewing from any angle, this Court is of the considered view that the prosecution has adduced cogent evidence before the Court below to show pendency of the official favour in respect of the work of PW.1 before AO as on 06.04.1998, 28.04.1998 and 29.04.1998.
37. Now, coming to the crucial allegations of demand made by AO to PW.1 to pay bribe of Rs.5,000/- on 06.04.1998, 28.04.1998 and 29.04.1998, PW.1 in his deposition has spoken to the facts as referred to above, till the date of lodging report on 28.04.1998. His evidence in this regard has corroboration from Ex.P-1 and the various correspondences made by him as referred to above. There was a contention advanced by the AO before the Court below that as PW.1 filed a caveat before the High Court expecting that AO would file a Petition before the High Court against the order dated 30.03.1998 of Tribunal, there was no possibility and probability for PW.1 to approach AO on 06.04.1998. There is no dispute about 36 AVRB,J Crl.A. No.1381/2007 the order dated 30.03.1998. There is also no dispute that PW.1 made a representation under Ex.P-4 to the AO and there is no dispute that AO received the same along with copy of the final orders but there is an endorsement on Ex.P-4 by AO to lie over till further orders are received from the Tribunal. There is no dispute that the distance between the MDO and school of AO is within the reach. So, when PW.1 got an order from the Tribunal dated 30.03.1998, the act of his filing a caveat does not mean that he had no right to meet AO to enquire as to what was happened basing on the representation under Ex.P-4. Therefore, there was a possibility for PW.1 to approach AO on 06.04.1998 to enquire his pendency of official favour. It is to be noticed that from the very beginning the approach of AO with regard to the cause of PW.1 was not in accordance with law and procedure. As seen from Exs.P-11 and P-17, it appears that AO developed vindictive attitude against PW.1 for his approaching the Tribunal against the order dated 29.06.1997. The conduct of PW.1 cannot be found fault for availing the remedies. On the other hand, the conduct of AO can be found fault that even in spite of a legal opinion obtained by his subordinates, at his instructions, he ignored the legal opinion and attributed several things against PW.1 in Ex.P-11. Under the circumstances and in my considered view, there was 37 AVRB,J Crl.A. No.1381/2007 every possibility proved by the prosecution that PW.1 approached AO on 06.04.1998. This Court has no reason to disbelieve the testimony of PW.1 in this regard. In Ex.P-1, it is alleged that on 06.04.1998 AO demanded PW.1 to pay bribe of Rs.5,000/- failing which he will approach the High Court. So, approaching of AO to the High Court by way of filing Writ Petition No.10062 of 1998 against the order in O.A. No.3871 of 1997 dated 30.03.1998 was only subsequent to 06.04.1998. Ex.D-1 is order dated 16.04.1998. It was only directing the status-quo to be maintained as on that day and by then PW.1 was already working in Nadim Tiruvur primary school. Hence, this Court is convinced to believe the evidence adduced by the prosecution relating to the demand made on 06.04.1998. Even the learned Special Judge with cogent reasons gave findings in favour of the prosecution in this regard.
38. Turning to the demands dated 28.04.1998 and 29.04.1998 they are interlinked with each other according to Ex.P-1 and the evidence of PW.1. So, the case of the prosecution is that on 28.04.1998 when PW.1 approached the AO requesting to clear his works i.e., implement the orders of the Tribunal and to pay his salary, AO demanded him to bring the bribe amount on 29.04.1998. The learned Special Judge believed the case of the 38 AVRB,J Crl.A. No.1381/2007 prosecution with regard to the demand and recovery of amount dated 29.04.1998 but disbelieved the case of the prosecution with regard to the demand dated 28.04.1998 and further believed the defence theory that PW.1 thrusted the amount into the right hand of AO. As this Court already pointed out having given a categorical finding with regard to the demand and recovery of the amount, the subsequent finding of learned Special Judge comes in conflict with the earlier findings.
39. This Court has carefully considered the evidence available on record. PW.1 categorically testified that on 28.04.1998, AO demanded him to bring Rs.5,000/- on 29.04.1998 and as he was not willing to give bribe, he lodged Ex.P-1 report. It is to be noticed that though the High Court ordered status-quo existing as on 16.04.1998, but the thing was that the status-quo as on 16.04.1998 was to be followed and by which time PW.1 was working in Nadim Tiruvur and his request for salary bills of various months right from the first week of July, 1997 were pending with AO. So, the status-quo order, dated 16.04.1998, was not coming in the way of PW.1's approaching AO reiterating his earlier request. Though the prosecution has raised a contention before the Court below that by 28.04.1998, PW.1 had no 39 AVRB,J Crl.A. No.1381/2007 knowledge about the orders of status-quo, but in my considered view, the knowledge of status-quo dated 16.04.1998 can be attributed to PW.1 because by then, his counsel was on record before the High Court as he got filed a caveat therein. So, there was every possibility for PW.1 to approach the AO on 28.04.1998. Simply because there was an order of status-quo under Ex.D-1, it cannot be held that PW.1 had no right to meet the AO on 28.04.1998.
40. The Court below relied upon the evidence of PW.7, the watchman and PW.9, the then MPP President, Tiruvur to uphold the contention of AO that on 28.04.1998, AO went to Vijayawada to attend Janmabhumi Review Meeting conducted by the District Collector. The Court below further relied upon the evidence of DW.2.
41. It is to be noticed that the context of examination of PW.7 by the Investigating Officer after conducting post trap proceedings is that AO put forth a theory before the Investigating Officer that PW.1 came to his residence and forcibly thrusted the tainted amount in his right hand and went on, then he kept it just under the pillow and shouted for the Attender. To counter check the said version, the Investigating Officer examined PW.7, whose statement 40 AVRB,J Crl.A. No.1381/2007 before the Investigating Officer was that he just saw PW.1 going into the house of AO and he (PW.7) was not called by AO. In this context, prosecution cited PW.7. His chief-examination before the Court below is that he knows AO and PW.1. On the date of trap at 09:00 a.m. he went to the residential quarter of AO to take tiffin for him. Then, PW.1 came and went into the house of AO. He do not know what was transpired in the room of AO. ACB trap party came and went into the house of AO. He was examined by the Police. So, in his chief-examination he reported the theory of the case of the prosecution but when it comes to cross-examination, he deposed certain answers deviating from his 161 Cr.P.C statement and gone to the extent of testifying that prior to the alleged date of trap i.e., on previous date, he supplied tiffin to AO during morning time and boarded him in Vijayawada bus. He do not know when AO returned back. So, the prosecution got declared him as hostile and during cross-examination he denied that he stated before Police as in Ex.P-20.
42. PW.13 is the Inspector of Police, ACB, Vijayawada, who took part subsequent investigation, testified that PW.7 stated to him as in Ex.P-20. The prosecution impeached the evidence of PW.7. It is a case where PW.7 deviating his case from 161 Cr.P.C statement 41 AVRB,J Crl.A. No.1381/2007 spoken certain facts which were not at all concerned to the case of the prosecution. PW.7 was a hostile witness, who deviated from 161 Cr.P.C statement and his hostility was proved under Ex.P-20 by virtue of the evidence of PW.13. When that is the situation, without any scrutiny, whatsoever, the observation of the trial Court that PW.7 supported the defence theory is not tenable. Likewise, PW.9 was the then MPP President, Tiruvur. Prosecution examined him as he was examined during investigation to speak about the pendency of the official favour etc. When he did not support the case of the prosecution that whether he had knowledge that PW.1 was not paid his salary from 01.07.1997, learned Special Public Prosecutor cross-examined him and he denied that he stated before ACB Police as in Ex.P-24.
43. PW.13 testified that PW.9 stated before him as in Ex.P-24. Portion of 161 Cr.P.C. statement was with regard to the pendency of the salary bills. He gave a go bye during the course of trial of his statement under Section 161 Cr.P.C. The learned Special Judge further without analyzation of the evidence of PW.9, relied upon an answer elicited by the defence counsel during the course of cross- examination. The defence counsel put a question to PW.9 in cross- examination that ‗by taking your permission the AO left 42 AVRB,J Crl.A. No.1381/2007 Vijayawada on the prior day of alleged trap? Ans:- Yes'. The observation of the learned Special Judge in this regard is that after eliciting the above said answer, prosecution kept quiet as such the above evidence is true. The learned Special Judge did not note that already the prosecution impeached his testimony by suggesting him that he is deposing false as AO worked under him so as to help him. Hostility of PW.9 was proved by virtue of Ex.P- 24 in the evidence of PW.13. So, the reliance placed by the Court below upon the evidence of PW.7 and PW.9 to show that AO was out of station on 28.04.1998 is not tenable.
44. There remained the evidence of DW.1 and DW.2 with regard to the contention of AO that on 28.04.1998 he went to Vijayawada to attend Janmabhumi Review Meeting. The AO examined DW.1, Deputy Statistical Officer, on summons and he was summoned to produce record relating to proceedings of Janmabhumi Review Meeting held by the Collector at Vijayawada on 28.04.1998. According to DW.1, the minutes of the review meeting would be destroyed after one year. Ex.X-1 is the Memo filed stating that the records relating to that meeting were destroyed. The learned Special Judge did not place reliance upon the evidence of DW.1 and Ex.X-1. AO further got examined DW.2, the then MDO of 43 AVRB,J Crl.A. No.1381/2007 Chatrai Mandal, Krishna District, who worked in the year 1998. His evidence was that on 28.04.1998, the District Collector convened a Janmabhumi Review Meeting at Sub-Collector's Office, Vijayawada. He and AO along with others attended the meeting held in between 10:00 a.m. and 05:00 p.m. and they signed in the attendance sheet. In cross-examination by the learned Special Public Prosecutor he deposed that no record is available with him to show that they have attended the meeting on 28.04.1998. He denied that no meeting was held on 28.04.1998, especially in between 10:00 a.m. to 05:00 p.m. and since AO is his colleague, he is deposing false. He further denied that he and AO did not sign in any attendance sheet as alleged. He deposed that he do not remember the date, month and year of the previous and subsequent Janmabhumi Review Meetings conducted by the District Collector. So, by virtue of the answers in cross- examination, it is clear that when DW.2 was capable of remembering the date on 28.04.1998 as on the date of his evidence on 18.02.2005, it is rather surprising that he could not remember the previous and subsequent dates of Janmabhumi Review Meetings. Except the oral say of DW.2 and AO, there remained nothing to prove that AO attended the Janmabhumi Review Meeting on 28.04.1998 from 10:00 a.m. to 05:00 p.m. If at 44 AVRB,J Crl.A. No.1381/2007 all the record relating to the review meeting held in the Sub- Collectors Office at Vijayawada was destroyed, there would have been other records in the office of AO either in the form of TA bill etc., to show the absence of AO on that particular day. Having regard to the above, this Court is of the considered view that the plea of AO was alibi. So, when the AO took the plea of alibi, it should be proved satisfactorily. The evidence adduced by the AO is not at all believable in this regard. Hence, I disagree with the finding of the learned Special Judge that AO was out of station on 28.04.1998 from 10:00 a.m. to 05:00 p.m. If that is excluded from considering the evidence, the evidence of PW.1 remained un- shaked. He denied during the cross-examination the defence theory in this regard. In the light of the above, this Court is inclined to believe the evidence that on 28.04.1998 AO demanded PW.1 to pay a bribe of Rs.5,000/-. As this Court already pointed, demand dated 29.04.1998 was interlinked with the previous demand, dated 28.04.1998, which the learned Special Judge failed to take into consideration. However, the learned Special Judge upheld the case of the prosecution with regard to the demand dated 29.04.1998 and consequent acceptance of the bribe of Rs.5,000/- during the post trap.
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45. Insofar as the demand dated 29.04.1998 is concerned, the evidence of PW.1 is that he met the ACB on 29.04.1998 i.e., on the next day of presenting Ex.P-1 report. On 28.04.1998, he was instructed by ACB Inspector to come to his office on 29.04.1998 at 05:00 a.m. along with the proposed bribe amount. He categorically deposed that he brought the amount and then DSP, Inspectors and two mediators were present and ACB conducted chemical test explaining the importance of phenolphthalein powder and further phenolphthalein powder was applied to tainted amount and serial numbers of the tainted amount were noted in the pre trap proceedings and DSP instructed him to pay an amount of Rs.5,000/- to AO only on further demand. The evidence of PW.1 in this regard is consistent with the evidence of PW.10, the mediator and PW.12, the Trap Laying Officer. They have also spoken about the pre trap proceedings minutely.
46. Coming to the post trap proceedings, the evidence of PW.1 is that they left ACB office at 07:00 a.m. They stopped their vehicles at a distance of one furlong to the residential quarter of AO. Then he got down from the car and was instructed again by the DSP to pay the bribe amount only on further demand of AO and thereby to give the pre arranged signal. He testified that he proceeded to 46 AVRB,J Crl.A. No.1381/2007 the house of AO and as somebody were there conversing with AO, he waited for some time. Within five minutes, the clerk who was in the house of AO came out and then he went into the house of AO and found AO sitting on a cot. AO asked him whether he brought the intended bribe amount. Then he stated that he brought the amount and so saying handed over the bribe amount to AO and he took Rs.5,000/- with his right hand and kept the same under a pillow. Then, AO assured that he will allow him to join at the same place as per the Tribunal's order and clear the arrears of salary. Then, he came out and relayed the pre arranged signal. ACB rushed into the house of AO. DSP instructed PW.1 to wait outside the house and they entered into the house of AO. After one hour, DSP called him and enquired what transpired and his version was recorded by the mediators. During the cross-examination, the fact that PW.1 met AO at his residence is not denied. In cross- examination, he deposed that he found AO when he entered into the house on a single cot and found a bed on the cot which was covered by the bed sheet. He denied that AO did not ask him whether he brought the tainted amount. He denied a suggestion that when he offered to give the bribe amount, AO refused and pushed the same with his hands as a result tainted amount fell on the cot and then AO raised cries calling his Attender. He denied 47 AVRB,J Crl.A. No.1381/2007 that on the pretext that his earlier transfer order was cancelled, he got filed false cases against AO with the help of ACB officials. The evidence of PW.10 and PW.12 is that on receiving pre arranged signal from PW.1, they rushed into the house of AO. They have spoken about the fact that they have conducted chemical tests to both hand fingers of AO and right hand fingers yielded positive result and left hand fingers yielded negative result. He further testified that the resultant solutions were packed, labeled, seized and got attested by them in their presence. MOs.4 and 5 are the resultant solutions. They have also spoken about the test on underneath the pillow cover, which yielded positive result. AO agitated before PW.10 during cross-examination about the thrusting theory and that the true version of AO was not recorded. He also agitated before PW.12 about the thrusting theory and his true version was not recorded.
47. The fact that AO dealt with the tainted amount was not in dispute. His defence was that when PW.1 thrusted amount into his right hand, he expressed his inability to do favour for PW.1 and resisted the act of PW.1 as such the amount fallen on the cot and then he was shouting for the Attender. The contention of AO before the Court below was that the amount was not recovered 48 AVRB,J Crl.A. No.1381/2007 from his possession. It is to be noticed that the post trap proceedings under Ex.P-29 reveals that by the time the trap party entered into the house of AO, AO was with banyan and lungi. PW.12, the Trap Laying Officer, categorically spoken this in his chief-examination to the effect that after receiving pre arranged signal, they rushed into the residential quarter of AO and they were informed by PW.1 that AO was in his bedroom and then after giving instructions to PW.1 to wait outside, they entered into the bedroom of AO and found the AO was with banyan and lungi. The fact that by the time ACB officials entered into the bedroom of AO, he was with banyan and lungi as mentioned in the post trap proceedings and as deposed by PW.1 was not at all disputed during the cross-examination. So, when AO was not wearing a shirt or trouser and when he was found sitting on a cot when PW.1 entered into the house, the natural reaction of the bribe taker would be to keep the amount on the cot after demanding and accepting the bribe amount. So, the evidence of PW.1 that AO took the amount with his right hand and kept it under a pillow was suited to the case of the prosecution. So, the contention of AO that the amount was not recovered from his possession was of no use to his defence.
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48. Now, coming to the thrusting theory, firstly, AO has no answer as to why he allowed PW.1 to his residence on 29.04.1998. As this Court pointed out, AO directed PW.1 to pay the bribe amount to him on 29.04.1998 and accordingly PW.1 went to his residence. AO had knowledge that, even according to his defence, he did not oblige the request of PW.1 for months together in clearing his salary bills and in making some in-charge arrangements so as to direct somebody to give charge to PW.1 when PW.1 joined by availing the remedies under law. The natural reaction of AO, if really, PW.1 thrusted amount in his hands would be to chase PW.1 to outside calling him back. He had no business to allow the amount to lie on the cot. PW.10, an independent mediator, and PW.12, the Trap Laying Officer, who had no enmity with AO had no reason to make a mention in the post trap that the amount was found lying underneath the pillow. It is not that they found the amount on the cot open to the naked eye. So, the evidence of PW.1 that AO kept the amount underneath the cover had corroboration from the evidence of PW.10, the mediator, and PW.12, the trap laying officer, and further the contents of post trap proceedings.
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49. As evident from Ex.P-29, post trap proceedings, the version of AO when the DSP confronted him as to whether he accepted the bribe amount from PW.1 was that U.V.Sesha Rao - PW.1, approached him little ago and requested him the transfer orders as Headmaster MPES, Suravaram at his previous station instead of Nadim Tiruvur and he told him that it was not possible for him at the present juncture and he forcibly thrusted the currency notes in his hands and went away. Then, he kept the said currency notes on his bed which is underneath the pillow shouting for the Attender. It is to be noticed that from the very beginning PW.1 was thinking that he would be entrusted with the duties at Nadim Tiruvur consequent upon his joining. He got transfer to Nadim Tiruvur on his request. So, the self styled version of AO as if PW.1 thrusted the amount and requested him to issue transfer order at his previous station instead of Nadim Tiruvur cannot stand to any reason. The contention of AO was that the true version was not incorporated in the post trap proceedings. As pointed out PWs.10 and 12 have no animosity against AO to incorporate a different version. He did not spell out in the post trap that when PW.1 thrusted the amount into the right hand and when he resisted, it fell on the cot. If that is true, his natural reaction would be to chase PW.1 to outside by taking the amount 51 AVRB,J Crl.A. No.1381/2007 into his hands. Viewed from any angle, the defence theory, in my considered view, is not at all convincing. In my considered view, the evidence on record further cogently establishes that AO demanded PW.1 on 29.04.1998 to pay the bribe of Rs.5,000/- and in pursuance of the demand only PW.1 paid the amount to AO, which was ultimately recovered from underneath the pillow on the bed in the bedroom of AO. The prosecution is able to prove recovery of the amount from the possession of AO in the manner as alleged by the prosecution.
50. Turning to the decision of the Hon'ble Apex Court in Darshan Lal (2nd supra), the case of the prosecution therein was based upon the interested and partisan witnesses who were not concerned in the success of trap. Under the said circumstances, the Hon'ble Supreme Court allowed the Appeal under the PC Act. Coming to the case on hand, the evidence of PW.1 is fully convincing. By relying upon the above, learned counsel for the respondent cannot support his contention in any way.
51. Turning to the other decision of the Hon'ble Apex Court in Shantilal Kashibhai Patel (1st supra), the complainant therein in his cross-examination admitted that he had thought to teach a lesson to the AO as he used to carry out raids on and often on Pan 52 AVRB,J Crl.A. No.1381/2007 gallas and he felt that he is harassing businessmen selling Pan and Masalas. So, it is a case where complainant had some animosity.
52. Coming to the case on hand, PW.1 right from the beginning was working out his remedies in accordance with law. It was AO who developed some vindictive attitude against PW.1 for no fault of him just because he approached the Tribunal challenging the transfer cancellation order, dated 29.06.1997. Under the above circumstances, throughout PW.1 was availing his remedies as per law as such he had no reason, whatsoever, to falsely implicate the AO in this case. At this juncture, this Court would like to make it clear that as the prosecution successfully proved the demands dated 06.04.1998, 28.04.1998 and 29.04.1998 made by AO to PW.1 to bring the bribe of Rs.5,000/- and that in consequence of that only PW.1 paid the amount to AO, now there arises a presumption as contemplated under Section 20 of the PC Act. 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 53 AVRB,J Crl.A. No.1381/2007 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 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.‖
53. The Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)5, presided over by a Constitutional 5 (2022) SCC OnLine SC 1724 54 AVRB,J Crl.A. No.1381/2007 Bench, examined the earlier decisions in B. Jayaraj v. State of Andhra Pradesh6, P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh7 and M. Narsinga Rao v. State of A.P8 elaborately and dealt with the essential ingredients of Sections 7, 13(1)(d) R/w.13(2) and 20 of the PC Act and held that there was no conflict relating to the aforesaid three decisions as referred to above. Further, the Hon'ble Apex Court at Para No.74 held as follows:
"74..........................................
(e) The presumption of fact with regard to the 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 the material on record, the Court has the discretion to raise a presumption of fact while considering whether 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.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the
6 (2014) 13 SCC 55 7 (2015) 10 SCC 152 8 (2001) 1 SCC 691 55 AVRB,J Crl.A. No.1381/2007 case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the Accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts 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 the said Section. 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 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law Under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
54. Coming to the case on hand, the prosecution had categorically proved the foundational facts pleaded by the prosecution. So, there arises a legal presumption in favour of the prosecution that the amount that was demanded and accepted by the AO was only for the purpose of motive or reward for doing official favour. Though the presumption under Section 20 of the PC Act is applicable to Section 7 of the PC Act, which is a rebutable presumption, in my considered view, the theory of defence of AO to rebut the presumption is only thrusting theory, which he miserably failed to probabilize. The Court below, as this 56 AVRB,J Crl.A. No.1381/2007 Court already pointed out, having believed the case of the prosecution with regard to the demands dated 06.04.1998 and 29.04.1998 erroneously disbelieved the case of the prosecution with regard to the demand dated 28.04.1998. The Court below with regard to the defence theory believed the case of the AO that PW.1 thrusted the amount into the right hand of AO. In the light of the detailed reasons furnished supra, the defence of AO is not at all tenable. In my considered view, the learned Special Judge without proper analyzation of the evidence and with unreasonable reasons believed the defence theory. As pointed out, the findings of the learned Special Judge believing the defence theory comes in conflict with his earlier findings categorically that „there is ample evidence to show that the recovery from AO was illegal gratification which he was not entitled from PW.1 and he accepted the same for doing an official favour for processing the issuance of salary bills and for giving posting orders to PW.1'. The learned Special Judge at Para No.69 of the judgment opined that ‗It appears, as seen from the admitted facts that knowing well that the A.O. cannot pass any orders, since the question in controversy is pending on the file of Honourable High Court, P.W.1 approached on the date of trap‟. The above finding comes in conflict with the findings of the learned Special 57 AVRB,J Crl.A. No.1381/2007 Judge believing the case of the prosecution relating to post trap i.e., demand and acceptance of bribe by the AO from PW.1. As this Court already pointed out, Ex.D-1 - status-quo order was not preventing PW.1 in approaching AO to comply his earlier request. This Court, on its own having independently analyzed the evidence on record, is of the considered view that the evidence on record categorically proved that the official favour of PW.1 was pending with AO as on the aforesaid three dates and in furtherance of demand made by AO on 29.04.1998, PW.1 paid the bribe amount to AO during the post trap. When the thrusting theory put forth by the defence is not believable, absolutely, there remained nothing on record to rebut the presumption under Section 20 of the PC Act.
55. In the light of the above, this Court is of the considered view that the prosecution before the Court below categorically proved Point Nos.3 and 4 beyond reasonable doubt as such there are grounds to set-aside the judgment of the learned Special Judge. The learned Special Judge did not give any finding as to the pendency of official favour with proper reasons and the findings of the learned Special Judge in disbelieving the case of the prosecution with regard to the demand for bribe on 28.04.1998 58 AVRB,J Crl.A. No.1381/2007 are not proper and further the findings of the learned Special Judge believing the defence theory are not at all on sound reasons. Hence, I hold that the prosecution before the Court below categorically proved that the AO demanded PW.1 to pay bribe of Rs.5,000/- and in pursuance of that PW.1 paid the amount of Rs.5,000/- to AO. The act of AO in demanding PW.1 and obtaining the amount is nothing but pecuniary advantage under Section 13(1)(d) punishable under Section 13(2) of the PC Act. Hence, the prosecution before the Court below proved both the charges against the AO beyond reasonable doubt as such AO is liable to be convicted by setting-aside the impugned judgment.
56. While concluding, this Court would like to make it clear the contention of AO at the time of arguments is that as of now the AO is in the age around 80 years and suffering with ill-health and the Court may take into consideration the above. It is very difficult to accept such contention. Simply because AO as of now is around 80 years appreciation of evidence by this Court would not be on other parameters. The Hon'ble Apex Court in Neeraj Dutta (5th supra), while concluding, referred its earlier observations and held as follows at Para Nos.79 and 80:
59
AVRB,J Crl.A. No.1381/2007 "79. In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh v. State of Haryana, (1997) 4 SCC 14:
"6. ...........Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corruption would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke".
80. The above has been reiterated in A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259 by quoting as under from the case of State of M.P. v. Shambhu Dayal, (2006) 8 SCC 693:
"32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count.""60
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57. Having regard to the overall facts and circumstances, the only thing which can be found favour with the respondent (AO) so as to impose sentence is that though prosecution approached this Court in the year 2007, the Appeal has been pending since the year 2007. As on the date of filing the Appeal, the age of AO may be around 64 years. Here, the offence under Section 7 of the PC Act, as on the date of offence was punishable with imprisonment which shall not be less than six (6) months but which may extend to five years and shall also be liable to fine. The offence under Section 13(1)(d) R/w.13(2) of the PC Act as on the date of offence was punishable with imprisonment which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
58. Having regard to the overall facts and circumstances, the ends of justice will meet if the AO is sentenced to undergo minimum imprisonment provided under law.
59. In the result, the Criminal Appeal is allowed by setting aside the judgment in Calendar Case No.13 of 1999, dated 16.05.2005, on the file of the Court of learned Special Judge for SPE & ACB Cases, Vijayawada thereby convicting the AO under Section 248(2) Cr.P.C for the charges under Sections 7 and 13(1)(d) R/w.13(2) of 61 AVRB,J Crl.A. No.1381/2007 the PC Act. Accordingly, the respondent/AO is sentenced to suffer Rigorous Imprisonment for six (6) months and to pay a fine of Rs.5,000/- in default to suffer Simple Imprisonment for three (3) months for the charge under Section 7 of the PC Act and he is further sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.5,000/- for the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Both the sentences imposed above shall run concurrently. MO.3, currency notes of Rs.5,000/-, is ordered to be returned to PW.1 and MOs.1 and 2 and MOs.4 to 6 are ordered to be destroyed after appeal time is over, if available before the Court below.
60. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the judgment of this Court to the 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.13 of 1999, dated 16.05.2005, 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 03.03.2023 in the name of the Presiding Officer concerned. A copy 62 AVRB,J Crl.A. No.1381/2007 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: 24.02.2023 DSH