Andhra HC (Pre-Telangana)
Nagulapati Mallaiah vs The State Of A.P. Rep. By The Inspector Of ... on 26 March, 2013
Author: R.Kantha Rao
Bench: R.Kantha Rao
HON'BLE SRI JUSTICE R.KANTHA RAO Crl.A.No.69 OF 2006 Date: 26-03-2013 Nagulapati Mallaiah...Appellant/Accused The State of A.P. rep. by the Inspector of Police, ACB Warangal Range, Khammam District...Respondent Counsel for appellant: Ms. D.Sangeeta Reddy, Counsel for respondent : Sri P.Ramchandra Reddy, Spl.P.P. for ACB/CBI <GIST: >HEAD NOTE: ?Cases referred: 1 (2003) 2 SCC 401 THE HON'BLE MR JUSTICE R. KANTHA RAO Crl.A.No.69 of 2006 JUDGMENT:
This is an appeal from the judgment dated 31.03.2005 passed by the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad in C.C.No.12 of 2000.
2. The appellant/sole-accused was tried by the learned Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad for the offences under Sections 7 and 13(1)(d) r/w Sec.13(2) of Prevention of Corruption Act, 1988 (for short 'the Act') and was convicted for the said charges and sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.1,000/-, in default to suffer simple imprisonment for three months for the offence under Section 7 of the Act and he is further sentenced to undergo rigorous imprisonment for a period of two years and also to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for six months for the offence under Section 13(1)(d) r/w Section 13(2) of the Act.
3. Challenging the said order of conviction and sentence, the appellant preferred the present appeal.
4. The indictment against the appellant was that while he was working as Sub- Treasury Officer demanded and accepted bribe of Rs.1,000/- from PW-1( Kodati Rajamouli), a stamp vendor on 15.06.1999 at about 3.30 p.m. as gratification other than legal remuneration for issuing the stamps to him. To prove the aforesaid indictment, the prosecution examined before the learned Special Judge PWs.1 to 6 and marked Exs.P-1 to P-13 and M.Os.1 to 6. The appellant examined on his behalf DWs.1 to 8 and marked Ex. X-1.
5. PW-1 was staid to be a stamp vendor, obtained licence to sell the stamps for the first time on 01.06.1999, he did business in cable T.V. under the name and style 'Satya Krishna Cable T.V. at Madhira and he was also salestax assessee at Madhira. He stated in his evidence before the trial Court that when he approached the appellant who was the S.T.O. for the first time after obtaining licence for delivery of stamps, the appellant allegedly told him that whoever obtains licence for the first time would pay an amount of Rs.2,000/- to him and accordingly demanded PW-1 to pay an amount of Rs.2,000/-. He also deposed that the appellant made it clear that unless the amount of Rs.2,000/- was paid, he would not deliver the stamps to him, for that PW-1 pleaded before him that he was a poor person and was not in a position to pay the amount. However, according to PW-1, on that day, however, the appellant issued the stamps but made it clear that next time he had to pay the amount of Rs.2,000/- to him. It is the version of PW-1 that on 14.06.1999 again he submitted challan after remitting the requisite amount and approached the appellant for issuance of stamps. At that time the appellant reiterated his demand and when PW-1 expressed his inability, the appellant reduced his demand to Rs.1,000/- and told him to pay the same on the next day.
6. It is under these circumstances, according to PW-1 as he was unwilling to pay the bribe, he approached the DSP, ACB at 11 a.m. on 15.06.1999 and lodged a report with him, on the strength of his report a case in Crime No.9/ACB-WKH/99 was registered and the DSP-ACB took up investigation by issuing the F.I.R. In the course of investigation, a trap was laid and it is the version of PW-1 before the trial Court that on the date of trap, he went to the office of the S.T.O., Madhira at 3.20 p.m., found the appellant sitting in his chair, when he approached the appellant he asked him whether he brought the amount of Rs.1000/- which was demanded earlier, when PW-1 responded positively, the appellant received the amount of Rs.1,000/- from him and told him to bring an amount of Rs.1200/- after two days. The appellant received the amount with his two hands and he kept the same in the table drawer in his office. Subsequently, PW-1 came out, relayed the pre-arranged signal, on receiving the same, the raiding party rushed in, and accordingly the appellant was trapped. Phenolphthalein test conducted on the fingers of the appellant yielded positive result and the tainted amount was recovered from the appellant by the DSP-ACB, when the appellant took out the said amount from the table drawer and produced the same before the DSP-ACB. The chemical test proving positive and recovering of the tainted amount from the appellant was spoken to by PW-2, one of the mediators as well as the DSP-ACB who laid the trap.
7. The defence version was that PW-1 while doing business in cable T.V. got trapped one Mr.Somaiah, Assistant Engineer on false allegations, the said Assistant Engineer faced trial in C.C.No.8 of 1998, ultimately the case ended in acquittal holding that PW-1 was not a reliable and truthful witness and the allegation levelled against the Assistant Engineer of demand and acceptance of bribe was false.
8. PW-1, also complained against one Pandu, ACTO at Madhira alleging that he demanded and accepted bribe of Rs.1,000/- from him and on his complaint, the ACB, Warangal registered a case against the said ACTO, trap was laid against him and the said case was pending at the time when PW-1 gave evidence before the trial Court. It is also the version of defence that PW-1 got trapped Mr.Mallikarjuna Naik and Mr. Anjaneyulu in ACB cases and the said cases were pending on the date of trial in the present case. Thus, according to the defence, PW-1 was a chronic petition-monger was in the habit of implicating the government officials in ACB cases on false grounds and was in the habit of blackmailing them and therefore, no reliance can be placed on the evidence of PW-1.
9. It is also the theory of defence that PW-1 would get only a meagre amount as commission for selling the stamps and it was most unlikely to allege that the appellant demanded an amount of Rs.2,000/- from PW-1 for issuing the stamps.
10. According to the appellant, there are two door ways to enter the seat of the appellant, while the appellant was not at his seat, PW-1 entered through another way without being noticed by the appellant, planted the amount of Rs.1,000/- in the table drawer of the appellant, the appellant in the meanwhile came and opened the table drawer and searched for some papers, in the meanwhile PW-1 came out and relayed the pre-arranged signal. Thus, according to the appellant, as he searched for the papers in the table drawer, his hands when subjected to chemical test yielded positive result.
11. The appellant examined as many as 8 defence witnesses on his behalf to prove that PW-1 was involving the public servants in trap cases falsely and was blackmailing them, that in the absence of the appellant, PW-1 entered into chamber of the appellant and also to prove that the appellant was honest officer and never demanded any bribe from the stamp vendors.
12. DW-4 who was the Assistant Divisional Engineer stated in his evidence that while he was working as Additional Assistant Engineer at the office of A.P. Transco, Madhira, PW-1 was one of the domestic customers of Cable T.V., he had obtained for using the cable T.V. for demestic purpose, but unauthorisedly using it for commercial purpose, then, he told PW-1 that he had to obtain permission for operating the cable T.V. for commercial purpose by depositing certain amount, for that, he submitted an application requesting the department to provide a meter on payment basis and was falsely involved him in a trap by giving an amount of Rs.1000/- to him representing it to be towards the purchase of meter but told the ACB officials that he demanded the said amount as bribe. He further deposed that he was tried as an accused in C.C.No.8 of 1998 which ended in acquittal. He also further deposed that the State did not prefer any appeal against the said judgment and in the said judgment, the learned Special Judge found that PW-1 is unreliable witness and he falsely involved DW-4 in the said case, the copy of the judgment is marked as X-1.
13. DW-6, another witness stated in his evidence before the trial Court that while he was working as ACTO, PW-1 who was cable operator got him involved in a trap falsely as he developed grouse against him for directing him to pay the security deposit to operate the cable T.V. He further deposed that PW-1 falsely involved 5 government officials in the ACB net and that PW-1 carries the image of broker and blackmailer of public servants.
14. DWS.1, 3, and 5 who were the vendors at Madhira stated in their evidence that the appellant was an honest officer and never demanded any bribe from the stamp vendors. DWs.2, 7 and 8 stated in their evidence before the trial Court that PW-1 went to the chambers of the appellant through direct way on 15.06.1999 at about 2.30 p.m. or 3 p.m. DW-2 in particular stated that on the previous day when PW-1 approached him for issuance of stamps, he told him that he kept the stamps ready for delivery and asked him to take delivery of the stamps and PW-1 did not take delivery of the stamps stating that it was raining by that time.
15. Considering the entire evidence, the leaned trial Court however recorded conviction against the appellant mainly on the following grounds: i) PW-1 deposed that the appellant demanded and accepted the bribe, ii) both hands of the appellant yielded positive result when subjected to chemical test and iii) the tainted amount was recovered from the table desk of the appellant at his instance.
16. Now the point for consideration in the present appeal is whether the learned trial Court is justified in recording a conviction against the appellant for the offences under Sections 7 and 13(1)(d) r/w Sec.13(2) of Prevention of Corruption Act, 1988.
17. It is true that if the prosecution is successful in proving that the appellant voluntarily accepted the bribe amount, it would be obligatory on the part of the court to raise a presumption against him under Section 20 of the Act to the effect that he received the said amount as illegal gratification for doing official favour. But, the mere facts namely that the chemical test proved positive and the recovery of the tainted amount at the instance of the appellant do not automatically enable the court to draw the presumption against the appellant under Section 20 of the Act unless the prosecution could be able to establish either by positive evidence or from the circumstances brought on record that the appellant voluntarily accepted the bribe amount.
18. Further, in this case, there is no accompanying witness. There is no requirement in law that in each and every case there should be an accompanying witness, to corroborate the version of the decoy as to the receipt of bribe. The evidence of decoy must inspire confidence of the court. The court can no doubt record a conviction basing on the solitary evidence of the complainant who deposed that the accused received bribe from him. The trial Court has to make a proper assessment of the situation basing on the facts and circumstances of the case. It has to be extremely careful before recording a finding of acceptance of bribe basing on the testimony of a solitary witness. In the present case, the appellant could be able to positively establish that PW-1 was in the habit of trapping the public servants and was blackmailing them. The evidence on record discloses that PW-1 got trapped as many as six public servants. In one case as spoken to by DW-4 in which he was accused, the trial Court not only acquitted him, but also recorded a finding that he was falsely involved in the ACB net by PW-1 and held that PW-1 is a witness who is totally unreliable. The State did not prefer any appeal in the said case against the order of acquittal passed by the learned Special Judge. Before recording a finding that the appellant received bribe amount from PW-1, basing on the sole testimony of PW-1, the learned trial Court ought to have taken into consideration the conduct of PW-1 which had been established by the defence by adducing voluminous evidence. The learned trial Court ought to have taken notice of the fact that PW-1 was such a person that he would not even hesitate to plant the money in the table drawer of the appellant to get him involved in the ACB net.
19. In LALLU MANJHI AND ANOTHER v. STATE OF JHARKHAN1 the Supreme Court held as follows:
"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely
(i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
20. In view of the note of caution given by the Hon'ble Supreme Court, I am of the view that in the present case, the learned trial Court totally ignored the conduct of PW-1, a solitary witness while accepting his testimony for demand and acceptance of bribe by the appellant and the possibility for him to enter into the chambers of the appellant in his absence and plant the money in the table drawer. The learned trial Court was swayed away by the two main factors that both the hands of the appellant yielded positive result when subjected to chemical test and that the tainted amount was recovered at the instance of the appellant by the DSP-ACB. The trial Court also expressed the view that there was no spontaneous explanation from the appellant as to how the tainted amount came into his table drawer. In the instant case, it can be only possible to the appellant to say that he did not know as to how the amount came to be lying in his table drawer, but, it was not at all possible for him to explain the entire situation since according to him everything happened behind his back. In any event, on the ground that there was no spontaneous explanation from the appellant, the learned trial Court ought not to have considered the version of PW-1 to be true without subjecting his testimony to strict scrutiny. The two factors, namely, the hands of the appellant responding positive to the chemical test and that the tainted amount was recovered from the table drawer of the appellant, as I have already said do not enable the trial Court to come to a conclusion automatically that the appellant received the bribe amount from PW-1 voluntarily. The circumstances brought on record by the defence which are pointed out hereinabove would obviously indicate that the prosecution did not establish by clinching evidence that there was voluntary acceptance of tainted amount by the appellant. Therefore, the learned trial Court in my view is not justified in drawing a presumption against the appellant which was envisaged under Section 20 of the Act. Even in the event of raising such presumption by the trial Court, in the instant case, the appellant could be able to prove his defence by the standard of preponderance of probability of his defence namely that there was every possibility for PW-1 who was known to be unscrupulous individual in the habit of involving the public servants in false charges of graft, to involve PW-1 also in the ACB net on the false grounds. Considering the entire circumstances of the case, I am of the definite view that the appellant is entitled for benefit of doubt which the learned trial Court ought to have given to him instead of finding him guilty of the aforesaid charges.
21. For the reasons aforementioned, the conviction and sentence passed by the trial Court are liable to be set aside as they are unsustainable.
22. Consequently, the conviction and sentence passed against the appellant/sole accused by the trial Court is set aside and the appellant/sole accused is acquitted of the offences with which he stood charged. The fine amount, if any, paid by the appellant/sole accused shall be refunded to him. The appeal is allowed.
_________________ R. KANTHA RAO, J Date:26.03.2013