Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs Mohammad Ismail, on 21 March, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.1239 OF 2007
JUDGMENT:-
This Criminal Appeal is filed by the State, being represented by the Inspector of Police, Anti-Corruption Bureau ("A.C.B." in short), Rajahmundry Range, Rajahmundry, challenging the judgment, dated 24.01.2006 in C.C.No.113 of 2000, on the file of Special Judge for SPE & ACB Cases, Visakhapatnam ("Special Judge" for short), where under the learned Special Judge, found the Accused Officer ("A.O" for short) therein not guilty of the charges under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 ("P.C. Act" for short) and acquitted him under Section 248(1) of the Code of Criminal Procedure ("Cr.P.C." for short).
2) The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience.
3) The case of the prosecution, in brief, before the Court below, according to the charge sheet filed by the Inspector of Police, Anti-Corruption Bureau, Rajahmundry Range, Rajahmundry, pertaining to Crime No.11/RC-ACB/RJY/99 of A.C.B., Rajahmundry Range, is as follows: 2
(i) Sri Mohammed Ismail i.e., the A.O. worked as Mandal Revenue Inspector, Mandal Revenue Office, Samarlakota Mandal, East Godavari District from 08.09.1998 to 26.11.1999.
He is a public servant within the meaning of Section 2(c) of the Act.
(ii) L.W.1-Chundru Satyanarayana is a resident of G. Medapadu Village, Samarlakota Mandal, East Godavari District. He is an agriculturist. As an agriculturist, he submitted an application to A.O. in the second week of November, 1999 to issue legal heir certificate. A.O. visited the village of L.W.1 on the same day. After four days, L.W.1 went to Mandal Revenue Office, Samarlakota and met the AO and requested him to issue legal heir certificate. A.O. informed to him that he is busy with other works and requested him to meet after one week.
(iii) On 23.11.1999 in the morning L.W.1 went to Mandal Revenue Office, Samarlakota and met the A.O. and asked him about the legal heir certificate. The A.O. demanded bribe of Rs.300/- to issue legal heir certificate, for which L.W.1 expressed his inability. A.O. insisted him to pay the amount. L.W.1 reluctantly agreed to pay the amount and approached L.W.7-Inspector of ACB, Kakinada and presented a report on 26.11.1999 at 8-00 a.m. It was registered as a case in Crime No.11/RC-ACB/RJY/99. The A.O. was trapped on 26.11.1999 at 3 4-20 p.m. in his office room when he demanded and accepted Rs.300/- from L.W.1 as illegal gratification for doing official favour. The chemical test on right hand fingers of A.O. yielded positive result. The inner linings in the left side shirt pocket of A.O. proved to be positive. The A.O. produced tainted amount from his left side shirt pocket in the presence of L.W.3-Ch. Suryanarayana and L.W.4-V. Satyanarayana. L.W.8-M. Subba Rao, the then D.S.P. of ACB arrested the A.O. and released him on bail.
(iv) The Government of Andhra Pradesh, being the competent authority to remove the A.O., accorded sanction orders in G.O.Ms.No.521, dated 31.07.2000 to prosecute the A.O. Hence, the charge sheet.
4) The learned Special Judge for SPE & ACB Cases, Visakhapatnam, took the case on file under the above provisions of law and after appearance of the A.O and after compliance of Section 207 of Cr.P.C., framed charges under Section 7 and Section 13(2) r/w 13(1)(d) of P.C. Act against the A.O and explained the same to him in Telugu, for which he pleaded not guilty and claimed to be tried.
5) During the course of trial, on behalf of the prosecution, P.W.1 to P.W.4 were examined and Ex.P.1 to Ex.P.11 were marked and M.O.1 to M.O.8 were marked. After 4 closure of the evidence of the prosecution, the A.O was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the same and stated that he has defence witnesses.
6) The learned Special Judge on hearing both sides and on considering the oral as well as documentary evidence, found the A.O not guilty of the charges framed against him and accordingly, acquitted him under Section 248(1) of Cr.P.C. Felt aggrieved of the same, the State, represented by the Inspector of Police, ACB, Rajahmundry Range, filed the present Criminal Appeal challenging an order of acquittal, through the Standing Counsel for ACB and Special Public Prosecutor.
7) There is no dispute with regard to the fact that A.O. was a public servant within the meaning of Section 2(c) of the P.C. Act. Further, there is also no dispute that the prosecution obtained a valid sanction to prosecute the A.O. for the charges framed. Insofar as the sanction is concerned, the prosecution exhibited Ex.P.10, sanction order, upon the consent given by the A.O. without examining any witnesses and Ex.P.10 goes to prove that the sanctioning authority duly applied its mind and accorded sanction to prosecute the A.O. These facts are not in dispute.
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8) Now, this Court confined itself to the following points for determination:
(1) Whether the prosecution before the trial Court proved beyond reasonable doubt about the pendency of the official favour in respect of the work of P.W.1 with A.O. prior to the date of trap and on the date of trap and that the AO demanded bribe prior to the trap and on the date of trap and accepted the bribe amount?
(2) Whether the prosecution proved the charges against the A.O. beyond reasonable doubt?
(3) Whether there are any grounds to interfere with the judgment of acquittal recorded by the trial Court?
POINT Nos.1 to 3:-
9) Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the appellant/State, would contend that P.W.1 lodged Ex.P.1 report knowing fully-well about the contents thereof, but, he turned hostile to the case of the prosecution totally and thrown the blame on some others. He did not support the case of the prosecution. He falsely deposed that he thrust the amount into the left side shirt pocket of P.W.1 at the advice of somebody.
But, there is no dispute that the tainted amount was recovered from the A.O. The learned Special Judge rightly held the pendency of the official favour with the A.O,, but as P.W.1 6 turned hostile to the case of the prosecution, he disbelieved the case of the prosecution. The learned Special Judge did not apply the presumption under Section 20 of the P.C. Act in favour of the prosecution. Hence, the Criminal Appeal is liable to be allowed by convicting the A.O.
10) Sri Shaik Abdul Kalam Riaz, learned counsel, representing the learned counsel for the respondent, would contend that there was no evidence whatsoever that prior to the date of trap and on the date of trap, the A.O. demanded P.W.1 to pay bribe amount of Rs.300/- and pursuant to the demand, he accepted the amount. As the prosecution did not prove the allegations as alleged in Ex.P.1, presumption under Section 20 of the P.C. Act cannot be drawn. Though the A.O. was competent to process the request of P.W.1, but, he never demanded any amount from P.W.1 and under misconception P.W.1 lodged a report against the A.O. As P.W.1 did not support the case of the prosecution, there is no other evidence available on record to prove the guilt, as such, the Criminal Appeal is liable to be dismissed.
11) The crucial allegation in the case of the prosecution is that P.W.1 made an application under Ex.P.1 requesting the A.O. to issue legal heir certificate, as father of P.W.1 was expired on 20.05.1997 and to issue such certificate, the A.O. 7 demanded bribe of Rs.300/-. Ex.P.1 is the report given by P.W.1 to the Inspector, ACB. Ex.P.2 is Section 161 of Cr.P.C. statement of P.W.1 which was marked by way of confrontation when P.W.1 did not support the case of the prosecution.
12) To succeed in the charges framed against the A.O., admittedly, the prosecution has to prove before the Court below the pendency of the official favour in respect of the work of P.W.1 with the A.O. and further that the A.O. demanded P.W.1 to pay bribe of Rs.300/- prior to the trap and on the date of trap and accepted the same.
13) As seen from the evidence of P.W.1, his father died about six years ago prior to his evidence. He, his mother Chundru Padmavati and his elder sister Chundru Laxmi are the legal heirs. He made Ex.P.1, dated Nil to Revenue Inspector i.e., the A.O. The A.O. told him that he would come to village for enquiry. On the same day, he came to village at 12-00 noon and made enquiries and stated to him that the Legal Heir Certificate will be issued within one week. He went to the A.O office in November, 1999, but nobody was available. The A.O. went outside according to him. He came back. Though he made two or three times to met the A.O., none were available. On the third occasion, he happened to meet another villager, who applied for legal heir certificate. He stated to him that without 8 payment of money, the certificate would not be issued. He informed the same to his friend Y. Rambabu. Then, both of them went to ACB, Kakinada. Rambabu brought a person from the ACB and he (P.W.1) scribed Ex.P.2 with the help of a rough draft prepared and given by the ACB officials. Ex.P.2 is in his hand writing. His friend took Rs.300/- into the office of ACB. They were asked to come to the office of ACB, Kakinada after taking lunch. They went to ACB Office, Kakinada at 3-00 p.m. Then, they were taken to Samarlakota M.R.O Office. He, his friend Y. Ramababu and another went to the office of the A.O. He could not see the person, who stated to him that his work would not be done without payment of money. He informed the same to his friend and another. Then, they asked him to give the amount to the A.O. to get the legal heir certificate. He went inside and kept the money on the table of the A.O. The A.O. asked him to take out the amount. He informed the same to the said persons. They instructed him to keep the amount in the shirt pocket of the A.O. Then, he went into the office and while the A.O. was writing, he stuffed the amount in the left front shirt pocket of the A.O. Though the A.O. was calling him, he came out. His friend gave a signal to ACB and the ACB rushed to the office of the A.O. and asked him to wait outside. After one hour his friend took him to their village. After that he was taken to 9 the Magistrate, Peddapuram and he was supplied a written script and he was asked to give statement accordingly. So, his statement was recorded before the learned Magistrate. The prosecution got declared him as hostile and cross examined him. During the cross examination he denied the case of the prosecution. During the cross examination by the defence counsel, he deposed that after he stuffed the amount into the left front shirt pocket of the A.O. and while he was hurriedly leaving, the ACB staff went into the office and caught hold of both hands of the A.O. When he was not willing to scribe Ex.P.2, the ACB staff forced him to scribe Ex.P.2. Even he was forced to give statement before the Magistrate. Therefore, he gave the statement before the learned Magistrate.
14) P.W.2 is the mediator to the pre-trap and post-trap proceedings and he spoken about the fact that at the instructions of ACB, they gave copy of Ex.P.1 to P.W.1 and explained the contents, who admitted and P.W.1 produced the proposed bribe in the post-trap and phenolphthalein powder was applied and the amount was kept into the pocket of P.W.1 by D.S.P. with instructions to pay the amount on further demand to the A.O. and D.S.P. explained the phenolphthalein powder test and he further spoken about the post-trap proceedings supporting the case of the prosecution.
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15) Prosecution examined P.W.3 to prove the pendency of the official favour. According to him, the A.O. being Mandal Revenue Inspector, used to attend protocol duties, enquiries with regard to caste, legal heir and other certificates. He also used to attend the collection of land revenue and preparation of Zamabandhi accounts. The A.O. has to do the issuance of legal heir certificates. Ex.P.1 was not placed before him (P.W.3) and it was not forwarded through him to the A.O. Ex.P.6(a) is the statement of legal heirs including statement of P.W.1 recorded by the A.O. and it bears his signature. Ex.P.6(b) is the mediators report prepared by the A.O. in the village at the time of enquiry. Ex.P.6(c) is the report prepared by the A.O. stating that P.W.1, his mother and his elder sister are the legal heirs.
16) P.W.4 is the trap laying officer, who spoken about the receipt of report from P.W.1 and consequent registration of the same as F.I.R. and pre-trap and post-trap proceedings.
17) Even according to the evidence of P.W.1, there is no dispute that he made Ex.P.1 application, dated Nil to the Revenue Inspector i.e., the A.O., which in fact was addressed to the Mandal Revenue Officer, Samarlakota and that acting on that the A.O. came to village and made necessary enquiry. P.W.3 deposed about the responsibilities and duties of the A.O. to attend the work relating to issuance of the legal heir 11 certificate. Even according to P.W.3, Ex.P.1 was not placed before him and it was not forwarded through him to the A.O. He testified about Ex.P.6(a), Ex.P.6(b) and Ex.P.6(c) as pointed out. During the cross examination, the said fact was not in dispute. Apart from this, a perusal of the post-trap proceedings marked under Ex.P.8, discloses that during the course of post- trap proceedings, these documents were seized from the custody of the A.O. Hence, the prosecution was able to prove before the Court below as to the pendency of the official favour with that of the A.O. prior to the trap and on the date of trap.
18) Now, another crucial thing that has to be established by the prosecution is as to whether the A.O. demanded bribe of Rs.300/- from P.W.1 prior to the trap and on the date of trap and accordingly, accepted the amount from P.W.1. Regarding this, P.W.1 did not support the case of the prosecution. In spite of lengthy cross examination done by the Special Public Prosecutor, there remained nothing in his cross examination to support the case of the prosecution in any way. Therefore, according to P.W.1, when he made an attempt to meet the A.O. twice or thrice, subsequently, it was not happened and when he happened to meet another villager, who applied for legal heir certificate, he stated that without payment of money, certificate would not be issued and he informed the same to his fried 12 Y. Rambabu and he was taken to the ACB and he scribed Ex.P.2 with the help of rough draft supplied by the ACB and even it was instructed as to how to give a statement before the Magistrate. So, it is a case where PW.1 negatived the contents of Ex.P.1, report lodged by him. Absolutely, he did not support the case of the prosecution for the so-called demand alleged against the A.O. prior to the date of trap or during post-trap. Virtually, the evidence is missing from the prosecution side as regards the fact that the A.O. demanded P.W.1 prior to the trap and on the date of trap and in pursuant of demand, accepted the bribe of Rs.300/-. The contents of Ex.P.2 cannot be read in substantive evidence. Apart from this, the prosecution got marked Ex.P.2, the Section 161 of Cr.P.C. statement which cannot be read in substantive evidence. Even the so-called statement purported to be recorded by the learned Magistrate under Section 164 of Cr.P.C. statement cannot be read in substantive evidence. So, virtually, there remained nothing to speak about the demands alleged against the A.O. demanding P.W.1 to pay bribe of Rs.300/- to do official favour.
19) The prosecution before the Court below relied on the solitary circumstances that during post-trap proceedings the tainted amount was recovered from the A.O. and when both hand fingers of the A.O. were subjected to chemical test, it 13 yielded positive result. Basing on this, it is the contention of the appellant that the presumption under Section 20 of the P.C. Act has to be drawn.
20) Section 20 of the Prevention of Corruption Act, 1988, runs as follows:
20. Presumption where public servant accepts gratification other than legal remuneration.--
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is 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 14 aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
21) The Hon'ble Supreme Court in the case of Neeraj Dutta v. State (Government of NCT of Delhi)1, dealing with the presumption under Section 20 of the P.C. Act held that it is the bounden duty of the prosecution to prove first the foundational facts with regard to the allegations of demand and acceptance of bribe by the bribe taker and then only a presumption under Section 20 of the P.C. Act can be drawn.
22) Needless to point out here that in this case the prosecution miserably failed to prove the foundational facts as alleged in the petition. In my considered view, as the prosecution failed to establish the foundational facts, presumption Section 20 of the Act has no application. Even relying upon the testimony of P.W.1, the A.O. was able to probabalise a theory that P.W.1 thrust the amount into his left side shirt pocket.
23) The evidence of P.W.1 on crucial aspects as to the events that were said to be happened during the post-trap is that he went inside and kept the money on the table of the A.O. who asked him to take out the amount. Then, he informed the same to his friend and other person and they instructed him to keep that amount in the shirt pocket of the A.O. He entered into 1 (2022) SCC OnLine SC 1724 15 the office and while the A.O. was writing, he stuffed the amount into the left front shirt pocket of the A.O. Though the A.O. was calling him, but, he came out from the office of the A.O. So, P.W.1 blamed himself by stating that he stuffed the amount into the shirt pocket of the A.O. Apart from this, there was spontaneous version during the post-trap proceedings when the D.S.P. confronted with the A.O. as to what happened. Then the A.O. made a self-styled version in the post-trap proceedings.
P.W.2, the mediator in cross examination deposed that the A.O. stated before them during Ex.P.8 proceedings that the complainant came to him and requested him to issue legal heir certificate and so saying complainant put a wad of currency notes in his left side shirt pocket, even though he protested about putting the amount in his pocket and the complainant left the office. Admittedly, such a version could be seen from the contents of Ex.P.8. Therefore, the A.O. was able to probabalise a theory that the complainant stuffed the amount in his left side shirt pocket and it was found place even in Ex.P.8 post-trap proceedings. Certainly, the presumption under Section 20 of the Act cannot be made applicable to the case on hand and even otherwise, the defence of the A.O. as projected in Ex.P.8 is spoken to by P.W.1, who did not support the case of the prosecution. Having regard to the above, I am of the considered 16 view that basing on Section 20 of the Act, the prosecution cannot boost its contentions in any way.
24) The learned Special Judge rightly appreciated the evidence on record and the judgment relating to acquittal of the respondent was with sound reasons by analyzing the evidence in proper perspective. Even the learned Special Judge with sound reasons turned down the request of the prosecution to prosecute P.W.1 for the offence of perjury.
25) Viewing from any angle, I see no reason to interfere with the order of an acquittal extended by the learned Special Judge for SPE & ACB Cases, Visakhapatnam.
26) In the result, the Criminal Appeal is dismissed. Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.21.03.2023.
PGR 17 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.1239 OF 2007 Date:21.03.2023 PGR