Andhra HC (Pre-Telangana)
B.Vittalaiah vs State Of Andhra Pradesh Rep. By Its ... on 18 March, 2014
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1830 of 2005
18-03-2014
B.Vittalaiah..... Appellant/Accused
State of Andhra Pradesh Rep. by its Special P.P. for ACB,High Court of A.P,
Hyderabad.... Respondent
Counsel for Appellant: Sri A. Hari Prasad Reddy
Counsel for Respondent : Sri R. Ramachandra Reddy,
Special Standing Counsel for ACB
<Gist:
>Head Note:
?Cases referred:
1) AIR 1976 SC 1497
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.1830 of 2005
JUDGMENT:
This Criminal Appeal is directed against the judgment dated 24-11-2005 in C.C.No.17 of 1995 passed by the learned Additional Special Judge for SPE & ACB cases, City Civil Court, Hyderabad whereby and whereunder the Accused Officer (A.O) was convicted for the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short 'P.C. Act') and sentenced to undergo RI for a period of one year and to pay a fine of Rs.1,000/- in default to undergo SI for a period of three months on two counts.
2) The factual matrix of the case, which led to file the instant appeal, is thus:
a) The A.O-Vittalaiah worked as Head Assistant in Mandal Revenue Office, Ibrahimpatnam Mandal, Ranga Reddy District from 01-05-1993 to 05-07-1994.
b) PW1-Ravula Yellaiah is the resident of Rayapale village of Ibrahimpatnam Mandal, Ranga Reddy District. He got Form 'D' certificate on 16-04-1993 in his favour to an extent of Ac.2.00 covered by Sy.No.263 of Kalsa Ibrahimpatnam Village, Ranga Reddy district. While so, his name was not shown as cultivator in pahani for the year 1992-93. Therefore, he submitted a representation in the month of December, 1993 to the District Collector, Ranga Reddy District and also to the Mandal Revenue Officer (MRO), Ibrahimpatnam to enter his name in the pahani. He also contacted the Village Administrative Officer (VAO), Kalsa Ibrahimpatnam of Ranga Reddy district for rectification of error in the pahani, but of no avail. Then PW1 contacted the A.O and explained his problem. Again in the month of June, 1994 he met the AO with regard to rectification of error. At that time A.O demanded Rs.500/- from PW1 as bribe to influence V.A.O and M.R.O to get his name entered in the pahani for the year 1992-93. Again on 29-06-1994, PW1 met the A.O in his office and submitted a representation for inclusion of his name in Jamabandi record in respect of Ac.2.00 of Kalsa Ibrahimpatnam village. Then the A.O reiterated his earlier demand for which PW1 kept silent. On 01-07-1994 when PW1 contacted A.O with regard to his representation, A.O reiterated his earlier demand of Rs.500/- as bribe and directed PW1 to pay the same within four or five days. As PW1 was not willing to pay the bribe amount, he approached Deputy Superintendent of Police (DSP), ACB, Hyderabad Range, Hyderabad on 02-07-1994 and submitted Ex.P.1-complaint.
Basing on Ex.P.1-complaint, the DSP registered a case in Cr.No.6/ACB-HR/94 for the offences under Sections 7 and 11 of PC Act against AO. On 05-07-1994 DSP arranged for trap and the A.O was successfully trapped on the same day at 2:15 pm in his office and the test on right hand of the A.O yielded positive result. The tainted amount of Rs.500/- (MO3) was recovered at the instance of A.O from his table drawer. After obtaining sanction order, the Investigating Officer laid the charge sheet.
c) On appearance of A.O, charges under Sections 7 and 13(1) (d) r/w 13(2) of P.C. Act were framed. The A.O denied charges and claimed to be tried.
d) During trial, PWs.1 to 9 were examined and Exs.P1 to Ex.P20 and M.Os.1 to 8 were marked on behalf of prosecution. On behalf of AO, DWs.1 to 3 were examined and Ex.D1 was marked.
e) A perusal of the judgment would show that the trial Court having relied upon the evidence of PWs.1 to 9 held that the A.O demanded bribe for doing an official favour i.e., for implementation of D Form Patta and inclusion of PW1's name in Jamabandi record in respect of land Ac.2.00 of Kalsa Ibrahimpatnam village. In this process, trial Court referred two main arguments advanced on behalf of A.O i.e. (1) that no official favour was pending with A.O and that his duty was only to maintain the attendance register and supervise the works of other staff members and it was not his duty to effect rectification in pahani register and (2) that the A.O never demanded and accepted the bribe and on the other hand, PWs.1 and 2 stealthily entered to his room and implanted amount in his drawer during his absence. The trial Court held that those arguments are untenable and convicted and sentenced the A.O as stated supra. Hence, the appeal.
3) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for appellant/A.O and Sri R.Ramachandra Reddy, learned Special Standing Counsel for ACB cases (for short "Spl.SC").
4 a) Criticizing the conviction and sentence passed by the trial Court learned counsel for appellant firstly argued that no official favour was pending with A.O to demand any bribe from PW1. Expatiating it, he submitted that A.O was only Head Assistant in MRO's office, Ibrahimpatnam, whose duties were to maintain attendance register and supervise the works of other staff members and it was not his duty to either maintain the pahani register or make entries in it, whereas the work of PW1 was that his name was missing in the concerned pahani register for the year 1992-93 and his request was to rectify the said mistake and enter his name in the concerned pahani register. Having regard to the nature of duties of AO, it is highly improbable, nay impossible, for him to demand bribe from PW1, since he was not competent to do the said work. It is the V.A.O who has to enter such entries in the concerned pahani register. He thus argued that at the very threshold, the prosecution case is quite unbelievable.
b) Secondly, learned counsel argued that A.O never demanded bribe from PW1 either prior to 29-06-1994 or subsequent thereto, much less on the date of trap i.e. on 05-07-1994 and he never accepted any amount. On the other hand, PW1 on the misconception that A.O was responsible for effecting entries in the pahani register and he was not doing the same, implicated him in a false case by implanting the tainted bribe amount in the office table drawer of A.O during his absence. Learned counsel submitted that A.O could successfully probablise his defence plea through two circumstances. Referring Ex.D1-portion of 164 Cr.P.C. statement of PW2, learned counsel submitted that in Ex.D1 PW2 stated that by the time PW1 and himself went to the room of AO, he was elsewhere and on seeing them he came to his seat. Learned counsel argued that this part of the statement of PW2 would indicate that by the time PWs.1 and 2 went into the room of A.O he was not there which probablises the fact that they had an opportunity to surreptitiously implant money in his table drawer. Then, learned counsel brought another circumstance to the notice of this Court. By referring Ex.P8 (second mediator's report), learned counsel submitted that spontaneous reply of A.O in Ex.P8 was to the effect that he has not demanded or accepted any bribe amount from the complainant (PW1). This would probablise his defence plea that amount might have been implanted to implicate him in this case.
c) Thirdly, showing the reason for A.O's right hand yielding positive result to chemical test, learned defence counsel argued that after the trap party entered the room of A.O, the D.S.P picked up the tainted bribe amount from the table drawer of A.O and handed over to LW4 and thereafter caught hold the hands of A.O. In that process, the phenolphthalein molecules must have transferred to the hand of A.O. He thus prayed to allow the appeal.
5 a) Per contra defending the judgment of the trial Court, learned Spl.SC firstly argued that though A.O was not directly concerned to effect entries in pahani books but still he being Head Assistant competent to influence V.A.O and other concerned staff members in the office to make rectification in the pahani registers and therefore, there is nothing unusual if he by abusing his official position demanded bribe. He argued that to attract a charge under Section 7 of P.C Act, the public servant who demanded bribe may not be competent to do the official favour by himself but suffice if he demanded bribe from the complainant to influence the concerned persons to do the work by misusing his official position. On this point he relied upon the decision reported in Chaturdas Bhagwandas Patel v. The State of Gujarat1. He submitted that there is ample evidence that A.O demanded bribe from PW1 to get the rectification work done through V.A.O and by influencing the MRO. Hence, he is liable for charge under Section 7 of PC Act.
b) Secondly, opposing the implant theory learned Spl.SC argued that PWs.1 and 2 being Shepherds and rustic villagers, it is highly unbelievable that they would enter the room of A.O during his absence and venture to implant the bribe amount. Further, they have no proven animosity against A.O to implicate him in a false case. Regarding the mentioning in Ex.D1, learned Spl.SC argued that the statement of PW2 at best would show that when PWs.1 and 2 went to the office room of A.O he was not sitting in his seat, but he was very much present in that room only. That was why on seeing both of them (he emphasised the words "on seeing us" in Telugu) he came to his seat to discuss with them. From Ex.D1- statement of PW2, we cannot infer A.O was not at all present in his room when PWs.1 and 2 entered his room. So, the question of PWs.1 and 2 implanting money in his alleged absence does not arise. He argued that from this and the chemical test of the right hand of A.O yielding positive result, it can safely be concluded that A.O further demanded and accepted bribe amount from PW1 just before trap and he himself kept the amount in his table drawer. Hence, he is guilty of the offence. Thus, he prayed to dismiss the appeal.
6) In the light of above rival arguments, the point for determination in this appeal is:
"Whether conviction and sentence passed by the trial Court against A.O are factually and legally sustainable?"
7) POINT: The charges against A.O are under Sections 7 and 13(1)(d) r/w 13(2) of PC Act on the accusation that the A.O demanded and accepted a sum of Rs.500/- as gratification other than legal remuneration from PW1 as a motive for doing an official favour i.e. for getting his name entered in the pahani register for the year 1992-93 in view of D Form patta certificate issued by M.R.O. in favour of PW1 assigning two acres of land in Sy.No.263 of Kalsa Ibrahimpatnam on 16-04- 1993. To sustain the above charges the prosecution is required to establish by cogent evidence:
i) that the A.O during the relevant period is a public servant
ii) that the A.O accepted gratification other than legal remuneration of Rs.500/- from PW1
iii) that the said gratification other than legal remuneration was accepted by A.O to do an official favour i.e. to get the name of PW1 entered in the pahani register for the year 1992-93 in an extent of 2 acres of land covered by Sy.No.263 of Kalsa Ibrahimpatnam village.
If the prosecution is able to establish these facts, then the mandatory presumption under Section 20 of PC Act shall follow. Hence, it has to be seen whether the prosecution could establish its case beyond reasonable doubt as held by the trial Court.
8) It is an admitted fact that A.O worked as Head Assistant in M.R.O. Office, Ibrahimpatnam Mandal, Ranga Reddy District from 01-05-1993 to 05-07-1994 and thus he was a public servant within the meaning of Section 2(c) of PC Act.
9) The case of PW1 is that himself and his father were in occupation of 2 acres of Government land in Sy.No.263 of Kalsa Ibrahimpatnam and Government issued D Form patta in his favour on 16-04-1993 and their names were entered in the cultivation columns of pahani registers except for the year 1992-93 and so in December, 1993 he submitted a representation to the District Collector, Ranga Reddy District and Mandal Revenue Officer, Ibrahimpatnam. His further case is that in this regard the M.R.O. instructed his staff to look after the matter and when he met A.O he replied that he would see the matter later and in June, 1994 when he met A.O he demanded bribe of Rs.500/- and told that if PW1 pay that amount he would instruct V.A.O to enter his name in the pahani and he would also recommend to MRO. Subsequently, on 29-06-1994 when PW1 met AO, he reiterated his earlier demand. Similarly, when PW1 met A.O on 01-07-1994, he again reiterated his demand and told that if he pay the amount within four or five days only his work would be done. Unwilling to pay the bribe amount PW1 gave Ex.P1-report to DSP, ACB who laid trap against AO.
Now, in the light of above facts, the contentions put-forth on behalf of appellant/A.O have to be looked into.
10) The first contention raised by the learned counsel for appellant is that there was no official favour pending with A.O to demand bribe. He contended that A.O being Head Assistant was not competent to maintain the pahani registers and make entries therein. His duty was to maintain attendance register and supervise the work of other staff members. Therefore, practically A.O had nothing to do with the rectification of entries in the concerned pahani relating to PW1. As such it was not possible for him to demand bribe.
On appreciation of facts and evidence, it must be stated that this argument is untenable. Regarding this contention, we will find in the evidence of PW6-R.Linga Reddy the then M.R.O. Ibrahimpatnam that the duties of A.O are to check up attendance register and also supervise the work and files maintained by other staff. He stated that M.R.O. only issues patta and A.O is no way connected with making entries in the register. In addition to this witness-DW1-the then ASO, DW2-the then Senior Assistant and DW3-the then Village Assistant of M.R.O. Office, Ibrahimpatnam also deposed in similar lines to the effect that duties of A.O are to maintain the attendance register of employees, to supervise the files, to receive the petitions in the absence of M.R.O. and to route the files to M.R.O. for his approval. They stated that A.O will not be maintaining the pahani registers and it is the duty of V.A.O to maintain those registers. In the light of aforesaid evidence, it is contended on behalf of appellant/A.O that no official favour was pending with him during the relevant period so that he could demand any bribe. Though this argument apparently sounds correct, but not so in reality. It must be noted that to sustain a charge under Section 7 of PC Act it is not necessary for the prosecution to establish that a public servant who demanded bribe was in fact competent to do that official favour for which he demanded bribe. Suffice to establish that the public servant in abuse of his official position, demanded bribe giver to pay him bribe to get the official favour done. His competency to do the official favour by himself is not the criterion. It was so held in Chaturdas Bhagwandas Patel's case (1 supra) wherein the Honourable Apex Court held thus:
"The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant, who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under the belief."
Therefore, the incompetency of an accused to do an official favour by himself cannot be a sole ground to discard the prosecution case. However, it can be considered as an additional ground when prosecution failed to prove satisfactorily the ingredients of demand and acceptance. Added to it, in the instant case it is not the version of PW1 that A.O demanded him bribe on the representation that he himself would rectify the entries in the pahani register. On the other hand, the allegation in Ex.P1-complaint is that A.O demanded him Rs.500/- as bribe on the representation that if he pays the bribe he would get the rectification of entries in pahani register through V.A.O and also recommend to MRO. So, in Ex.P1 the complainant did not mention as if A.O promised to do the work by himself. In his evidence also PW1 deposed in similar fashion and stated that when he met A.O he stated that he would get his name (PW1's name) recorded in the pahani and asked him to bring Rs.500/- for that purpose. Therefore, it is not the case of the prosecution that A.O is competent to do official favour by himself. Its case is that abusing his official position i.e. his supervisory power over other staff, he induced PW1 to pay bribe to him to get his work done. In the light of aforesaid facts and evidence, the first contention of the appellant regarding his incapacity to do the official favour cannot be countenanced.
11a) The next contention of the appellant is that he never demanded and accepted bribe and bribe amount was stealthily implanted by PWs.1 and 2 in his table drawer during his absence to implicate him in the case. Demand aspect is concerned, the evidence of PW4 would show that on Ex.P4-application submitted by PW1 for grant of D Form Patta in respect of land in Sy.No.263, she conducted an enquiry on the instructions of MRO, as per which, PW1 was in possession and enjoyment of land in Sy.No.263 in an extent of 2 acres. Accordingly, she submitted a report under Ex.P3. Then the evidence of PW6-M.R.O. would show that PW1 was assigned two acres of land in Sy.No.263 Kalsa Ibrahimpatnam as per assigned file No.175/93 on 16-04-1993. Thus the cumulative effect of evidence of PWs.4 and 6 is that PW1 was issued D Form patta in Sy.No.263 for an extent of 2 acres.
b) Then the further evidence of PW6 is that the names of PW1 and his father were mentioned in pahani registers i.e. Exs.P10 and P11 (vide relevant entries in Ex.P10 (a) and Ex.P11 (a)). However, pahani register for the year 1992-93 is concerned, their names are not shown as occupiers in Ex.P12. Similarly in Ex.P13-Faisal Patti for the year 1992-93, the patta certificate issued in favour of PW1 was not implemented for Sy.No.263. Whereas the names of one Kamala Bai and Narasimha Reddy in whose favour patta certificates issued were implemented in other survey numbers. For rectification of such error only PW1 submitted application under Ex.P2 to M.R.O. on 29-06-1994. According to him, earlier in December, 1993 also he submitted a representation to the District Collector, Ranga Reddy District and MRO, Ibrahimpatnam. Ex.P2 contains the endorsement of AO. According to PW1, A.O demanded bribe to get rectification of pahani through V.A.O and also by informing to MRO. The evidence of PW1 on the aspect of demand on 29-06-01994 and again on the date of trap i.e. 05.07.1994 is clear and vivid. His evidence regarding demand on 05.07.1994 is corroborated by the accompanying witness-PW2, who accompanied him on the instructions of DSP, ACB. Regarding the veracity of evidence of PWs.1 and 2, as rightly observed by the trial Court, there is no necessity for them to implicate the A.O in a false case. PWs.1 and 2 were cross-examined at length but it must be said that A.O failed to elicit any valid point showing their need for implicating him in a false case. So at the outset, it must be said that evidence of PW1 is trustworthy throughout on the aspect of demand of bribe by AO.
12 a) Sofaras the acceptance of bribe by A.O just before the trap is concerned, again we have evidence of PWs.1 and 2. Both of them deposed that on 05-07-1994 on the instructions of DSP, ACB both of them went to the M.R.O. office and met A.O in his room and PW1 paid the amount to A.O on further demand and A.O received the amount with his right hand and kept in his table drawer. Thereafter, PW2 went out and gave pre-arranged signal and trap party came and caught A.O red-handed.
This is the crux of their evidence. Against their evidence one main suggestion was given in cross-examination. It was suggested that both PWs.1 and 2 stealthily went into the room of A.O in his absence and kept the tainted amount and got him trapped. That is how the defence tried to prove that bribe amount was implanted. The said suggestion was emphatically denied by PWs.1 and 2. Sofaras the chemical test on the right hand of A.O yielding positive result is concerned, it was suggested to PW3-mediator and PW9-Inspector that the DSP himself took out the tainted currency notes from the table drawer and handed over to Subrahmanyam (LW4) and then caught hold the hands of A.O and then conducted chemical test. By this suggestion, the defence sought to project that because the DSP touched the tainted currency notes and then caught hold the hands of AO, the phenolphthalein molecules were transferred from his hand to the hands of A.O but not because the A.O accepted the tainted amount. This suggestion was strongly denied by both the witnesses. Their version is that immediately after rushing into the room of A.O on receiving signal, DSP introduced himself to A.O and got prepared sodium carbonate solution in two jars and conducted chemical test and thereafter enquired about the bribe amount and then instructed LW4 to take out the amount from the table drawer. So, their evidence is that DSP first conducted the chemical test and thereafter enquired about the money and recovered the same from the table drawer and he did not touch the hands of A.O by holding them. So, when the evidence relating to acceptance of bribe is analysed, the deposition of PWs.1, 2, 3 and 8 withstood the rigor of cross-examination and established that A.O very much accepted the bribe amount from PW1 on further demand and himself kept the same in the table drawer. Apart from their evidence, the defence theory of implanting of money cannot be countenanced for different reasons.
b) Firstly, as argued by learned Spl.SC, PWs.1 and 2 are rustic villagers. Hence, it is highly unbelievable that they could venture to implant the money in the table drawer of AO.
c) Secondly, though PW.1 and PW.2 admitted that there were none others in the first and second rooms, but they clearly stated that A.O was very much present in his room. Therefore, the question of PWs.1 and 2 implanting the money does not arise. In this context, Ex.D1-portion of PW2's 164 Cr.P.C. statement cannot be understood as A.O was not present in his room when PWs.1 and 2 entered. What PW2 stated in Ex.D1 is that when they entered inside, A.O was at another place and on seeing them he came to his chair. So, from the mentioning that "on seeing them" it can be understood that when they entered, A.O was very much present in his room but not in his seat. That is why on seeing them he came to his seat. So, from the moment they entered in his room they were in the gaze of AO. Hence, the question of their implanting the bribe amount is not at all possible.
d) Thirdly, if the implant was true, there was no occasion for A.O to touch the bribe amount and hence his hands will not yield positive result to the chemical test, but his right hand yielded positive result. The defence plea that DSP after entering his room himself opened the drawer and took the tainted amount and handed over to LW4 and then caught hold the hands of A.O and thereafter conducted chemical test and that is why the test yielded positive result because the phenolphthalein molecules were transferred from the hands of DSP to AO was denied by PWs.3 and 9 and their version is that chemical test was first conducted and later the tainted amount was recovered and in the process, the DSP did not hold the hands of AO. Therefore, the evidence of PWs.3 and 9 corroborates the evidence of PWs.1 and 2 to the effect that A.O upon demand and acceptance of bribe amount himself kept the same inside the table drawer.
13) Therefore, on a conspectus of evidence on record, it is clear that the prosecution by cogent evidence could establish that the A.O demanded and accepted the bribe amount from PW1. Therefore, the statutory presumption under Section 20 of P.C Act follows. The A.O failed to rebut the said presumption by showing the preponderance of probabilities. As already observed, the defence theory put-forth by A.O is unbelievable. Therefore, the A.O is guilty of the charges under Sections 7 and 13(1) (d) r/w 13 (2) of PC Act. The trial Court rightly convicted and sentenced him. I find no merits in the appeal.
14) In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court.
_______________________ U.DURGA PRSAD RAO, J 18-03-2014