Andhra Pradesh High Court - Amravati
Chalasani Jagadeeshwara Rao, vs State Of A.P., Rep By Spl.Pp., on 15 May, 2020
HON'BLE SRI JUSTICE RAKESH KUMAR
CRIMINAL APPEAL No.176 OF 2007
JUDGMENT:
1. The present Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), has been preferred by the sole appellant against the judgment of his conviction and sentence, dated 05.02.2007, passed by learned Special Judge for SPE and ACB Cases, Nellore (hereinafter referred to as the 'learned trial Judge') in C.C. No.9 of 2001 (arising out of Crime No.5/ACB-NPK/2000 of ACB, Nellore Range, Prakasam District).
2. The appellant, who may hereinafter be referred as AO, by the said judgment was held guilty for commission of offences under Sections 7 and 13(2) read with Section 13(1)(d) of the of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act'). On the same date i.e., on 05.02.2007, the Appellant/AO was sentenced to undergo rigorous imprisonment for a period of two (2) years and to pay a fine of Rs.2,000/- for offence under Section 7of PC Act. In default of payment of fine, he was directed to undergo further simple imprisonment for two (2) months. The Appellant/AO was further sentenced to undergo rigorous imprisonment for two (2) years for the offence under Section 13(2) R/w. Section 13(1)(d) of the PC Act and to pay a fine of Rs.2,000/-. In case of default in payment of fine, he was directed to undergo further simple imprisonment for two (2) months. Both the sentences were directed to run concurrently.
RK, J 2 Crl.A.No.176/2007
3. Short fact of the case is that on 03.05.2000, complainant - Davuluri Venkateswarlu (PW.1), filed a complaint to the Inspector of Police, ACB, Ongole, wherein he disclosed that he was an enrolled contractor for borewells and he was Managing Partner of M/s.Amman Borewells with the Andhra Pradesh State Co-operative Rural Irrigation Corporation Limited, Ongole (for short, 'the APSCRIC'). The said contractor got work for laying borewells in Anganwadi building compound during April, July, 1999 through the APSRIC under the scheme of Prakasam District Women and Child Welfare Department relating to Integrated Child Development Scheme (for short, 'the ICDS'). The complainant disclosed that they received work order from Executive Engineer, APSCRIC, to dig 12 bore wells in Giddaluru ICDS Sector, 18 borewells in Vetapalem sector, and 1 borewell in Ulavapadu sector. Immediately thereafter the contractor dug 31 borewells. The measurement was done by the concerned Engineer for the said work and the contractor was given an amount of Rs.1,50,000/- on 19.04.2000. On the date of complaint i.e., on 03.05.2000 in the morning at 11:00 a.m., the complainant along with one of his friends namely P.Raghunath (PW.2) went to the office of APSCRIC Division, Ongole, and met Executive Engineer namely Ch.Jagadeeswara Rao (AO), who at the relevant time was Deputy Executive Engineer and In-charge Executive Engineer of the APSCRIC, Ongole, and requested him to grant the remaining amount of Rs.54,000/- and for signing on the bills and issue cheque in his favour, whereupon a demand of bribe of Rs.4,000/- was made by the Appellant/AO. It was further indicated in RK, J 3 Crl.A.No.176/2007 the complaint that since the contractor/complainant had suffered loss in the said contract work, he was not in a position to pay the bribe amount. However, the Appellant/AO stated that on earlier occasion also he had not paid the bribe amount and as such the complainant was required to pay Rs.4,000/- within one or two days; only then he would get the cheque or whenever the complainant pays the sum of Rs.4,000/- the appellant can take the step for getting the cheque prepared and handed over. It was made clear that without payment of bribe amount, there was no possibility of payment of the dues of the complainant. Since there was no other way, with an assurance to provide bribe amount, both the complainant and his friend returned. It has also been indicated in the complaint that the complainant was not having any intention to give bribe to the Executive Engineer (Appellant/AO). Hence, he requested the Inspector of Police, ACB, to take action against the Appellant/AO. It is further case of the prosecution that after receipt of the complaint the Inspector of Police got the same verified and also ascertained about the reputation of the Appellant/AO, which was adverse. Subsequently, on 05.05.2000 a formal FIR was drawn vide Crime No.5/ACB-NPK/2000 of ACB, Nellore Range, Prakasam District. Thereafter, a pre trap memorandum (hereinafter referred to as 'Mediators Report No.I') was prepared in the presence of two mediators and in the evening the trap was laid. The Appellant/AO at about 07:00 p.m. in his office was apprehended and tainted bribe amount of Rs.4,000/- was recovered from upper pocket of his shirt and on the same day he was released on bail by the Dy.SP, ACB, RK, J 4 Crl.A.No.176/2007 on production of self surety for Rs.20,000/-. In the pre trap memorandum, currency notes which were produced by the complainant, were counted and numbers of those currency notes were noted down. After recovery of the tainted currency notes from the shirt pocket of the appellant, the same were tallied with the numbers mentioned in the pre trap memorandum. Thereafter, the appellant was asked to dip fingers of his both hands in the solution. Since currency notes were treated with phenolphthalein powder, after fingers were dipped in the solution of water, the colour turned pink. Similarly, linings of the upper shirt pocket of the appellant were dipped in the water solution which too turned into pink colour. Thereafter, post trap memorandum (hereinafter referred to as 'Mediators Report No.II') was prepared. After laying trap, the appellant was asked to give explanation regarding recovery of the said tainted currency notes. At the time of preparation of mediators report, the Appellant/AO has stated that the contractor/complainant had voluntarily paid Rs.4,000/-, which he received and kept in his shirt upper left pocket. After the trap, necessary witnesses were examined by the Police and during investigation accusation was found true against the appellant and as such prosecution sanction order was also obtained from the competent officer and thereafter charge sheet was filed by the Inspector of Police, ACB, Prakasam District, Ongole, against the Appellant/AO, who was the then Deputy Executive Engineer and In-charge Executive Engineer, APSCRIC, Ongole, vide Crime No.5/ACB-NPK/2000 of ACB, Nellore Range, Prakasam District, for the offences under Sections 7, 11, 13(2) R/w.
RK, J 5 Crl.A.No.176/2007 Section 13(1)(d) of the PC Act alleging that on 05.05.2000 the Appellant/AO demanded and accepted bribe amount of Rs.4,000/- from PW.1, Managing Partner of M/s. Amman Borewells for doing official favour i.e., passing a bill and issuing cheque for the work done by PW.1.
4. After submission of charge sheet and supply of police papers on 02.01.2004, charges under Sections 7 and 13(2) R/w. Section 13(1)(d) of PC Act, 1988 were framed against the appellant, which he denied and claimed to be tried.
5. The prosecution with a view to establish its case, examined altogether 10 witnesses. PW.1 - Davuluri Venkateswarlu, complainant, PW.2 - P. Raghunath, and PW.6 - E. Thirupala Raju were declared hostile and cross-examined by the learned Special Public Prosecutor. PW.3 - P.Venkata Siva Rao, PW.4 - K. Anji Reddy, and PW.5 - V. Naga Seshaiah were officials posted in the office of the Appellant/AO i.e., office of Executive Engineer APSCRIC, Ongole. PW.7 - K.Babu Rao, Section Officer in the Agriculture and Co-operative Department, Secretariat, Hyderabad, proved the prosecution sanction order against the appellant. PW.8 - C.Vasudeva Reddy, Assistant Audit Officer, in the Audit Office, Ongole, was one of the mediator. PW.10 - D.V.S.S. Murthy, Deputy Superintendent of Police, ACB, Nellore Range, has registered FIR and numbered the same, which was marked as Ex.P-20 and he was the first investigating officer; whereas PW.9 - B.Sarath Babu, the then Inspector of Police ACB, Ongole Range, Ongole, was the RK, J 6 Crl.A.No.176/2007 second Investigating Officer and also one of the members of the trap, who after investigation submitted charge sheet.
6. After conclusion of the prosecution evidence incriminating circumstances brought against the Appellant/AO were explained to him and as such statement under Section 313 Cr.P.C. was recorded. In his statement under Section 313 Cr.P.C., the Appellant/AO took the defence that the Complainant/PW.1 had thrusted the bribe amount of Rs.4,000/- in his shirt pocket forcibly and thereafter he called the trap party; meaning thereby that he took the plea of false implication. Besides taking defence of his false implication, 3 witnesses were examined on his behalf. DW.1 - Billa Raja Sekhar, DW.2 - Sk.Azeez Basha, and DW.3 - N.Raghavendra Rao. All the above 3 defence witnesses were examined mainly to prove that the Appellant/AO was a sincere and honest officer. Besides adducing oral evidence on behalf of the prosecution, following documents were exhibited:
"Ex.P.1/02.05.2000 : Application put by PW.1 to the E.E., APSCRIC, Ongole.
Ex.P.2/03.05.2000 : Report given by PW.1 to the ACB, Ongole.
Ex.P.3/06.05.2000 : Relevant portion marked in 161 Cr.P.C.
statement of PW.1.
Ex.P.4/06.05.2000 : Relevant portion marked in 161 Cr.P.C.
statement of PW.2.
Ex.P.5/03.05.2000 : Debit voucher for Rs.10,000/- prepared by PW.3.
Ex.P.6/----- : M. Book No.170.
Ex.P.6(A)/----- : Relevant page Nos.81, 83, 84 and 85 in
Ex.P.6.
Ex.P.7/ : Bill which contains payment order marked
by PW.3.
RK, J
7 Crl.A.No.176/2007
Ex.P.8/----- : Entire file relating to Amman Bore-wells.
Ex.P.9/05.05.2000 : Bill for Rs.16,094/- prepared by PW.4.
Ex.P.10/----- : Cheque book.
Ex.P.10(A)/05.05.2000: Cheuqe for Rs.34,949.79 Ps in favour of Amman Bore-wells.
Ex.P.10(B)/03.05.2000: Cheuqe for Rs.10,000/- signed by the A.O. Ex.P.10(C)/05.05.2000: Cheuqe in favour of Asst. Accounts Officer, Ongole.
Ex.P.11/26.05.2000 : Relevant portion marked in 161 Cr.P.C.
statement of PW.6.
Ex.P.12/04.03.2000 : Authorization given to PW.7 to give evidence in this Court.
Ex.P.13/27.11.2000 : Sanction order to prosecute the AO.
Ex.P.14/05.05.2000 : Carbon copy of FIR in Cr.No.5/ACB-
NPK/2000.
Ex.P.15/05.05.2000 : Mediators Report No.1.
Ex.P.16/----- : Spiral note book.
Ex.P.17/----- : Rough sketch.
Ex.P.18/----- : Mediators Report No.II.
Ex.P.19/05.05.2000 : Search list.
Ex.P.20/05.05.2000 : Original FIR in Cr.No.5/ACB-
NPK/2000."
7. Similarly, on behalf of the defence, the following 2 documents were got exhibited:
"Ex.D.1/25.05.2000 : Contradiction marked in 161 Cr.P.C.
statement of PW.3.
Ex.D.2/25.05.2000 : Another contradiction marked in 161 Cr.P.C. statement of PW.3."
8. Thereafter, the learned trial Judge, after hearing learned counsel for both the parties, by the impugned judgment, has convicted the Appellant/AO for the offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of the of the PC Act and sentenced him RK, J 8 Crl.A.No.176/2007 to undergo rigorous imprisonment for a period of two (2) years and to pay a fine of Rs.2,000/- for offence under Section 7of PC Act. In case of default in payment of fine, he has been directed to undergo further simple imprisonment for two (2) months. Similarly, he was sentenced to undergo rigorous imprisonment for two (2) years for the offence under Section 13(2) R/w. Section 13(1)(d) of the PC Act and to pay a fine of Rs.2,000/-. In case of default in payment of fine, he has been directed to further undergo simple imprisonment for two (2) months. Both the sentences were directed to run concurrently.
9. Sri A.Hariprasad Reddy, learned counsel for the appellant, after placing entire evidence, has argued that the judgment impugned is not sustainable in the eye of law. According to him, the prosecution has miserably failed to prove the demand made by the Appellant/AO beyond all reasonable doubt. He has taken a plea that since the complainant, who was PW.1 and his associate PW.2 had not supported the case and they were declared hostile, it is a fit case of non establishment of demand made by the Appellant/AO. According to learned counsel for the appellant, merely recovery of the tainted amount without establishing demand may not make out any case and on this very point, he has referred to a judgment of the Hon'ble Supreme Court reported in B.Jayaraj v. State of Andhra Pradesh1. He has specifically referred to paragraph Nos.7 and 8, which are quoted herein below:
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine 1 2014 (2) ALD (Crl.) 73 (SC) RK, J 9 Crl.A.No.176/2007 qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. {(2010) 15 SCC 1 = AIR 2011 SC 608 = 2011 AIR SCW 297} and C.M. Girish Babu v. C.B.I. {AIR 2009 SC 2022 = (2009) 3 SCC 779 = 2009 AIR SCW 1693}.
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
10. Similarly, on the same point, learned counsel for the appellant has placed reliance on paragraph Nos.21 to 24 of the judgment of RK, J 10 Crl.A.No.176/2007 the Hon'ble Supreme Court reported in P.Satyanarayana Murthy v. District Inspector of Police and another2, which are quoted herein below:
"21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs.500/- from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned Counsel for the State to correlate this statement of PW1-S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1-S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as 2 AIR 2015 (SC) 3549 RK, J 11 Crl.A.No.176/2007 enjoined by law to hold that the offence under Sections 7 or 13(1)(d)(i) and (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 03.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e., 04.10.1996. However, the testimony of PW1-S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i) and (ii) of the Act against the appellant has been proved beyond reasonable doubt.
24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification."
11. Learned counsel for the appellant has further argued that on examination of the entire evidence, there is possibility of two views, one goes in favour of the Appellant/AO and another goes against him. According to him, it is settled law that if there are two views, the view which goes in favour of the appellant may be taken note of and on this very point, he has placed reliance on paragraph No.10 of the judgment of the Hon'ble Supreme Court reported in T.Subramanian v. State of Tamil Nadu3, which is quoted herein below:
3
2006 (1) ALT (Crl.) 262 (SC) RK, J 12 Crl.A.No.176/2007 "10. The evidence throws out a clear alternative that the accused was falsely implicated at the instance of PWs.1, 2 and 6. If two views were possible from the very same evidence, it cannot be said that the prosecution had proved beyond reasonable doubt that the appellant had received the sum of Rs.200/- as illegal gratification. We are, therefore, of the considered view that the trial court was right in holding that the charge against the appellant was not proved and the High Court was not justified in interfering with the same."
12. Learned counsel for the appellant has argued that it is true that recovery of bribe amount was shown from the possession of the Appellant/AO. The prosecution has miserably failed to establish as to whether said amount was given to the Appellant/AO by the complainant for any official favour or not and, accordingly, in the absence of establishing any case of official favour, the learned trial Judge was not correct in passing the judgment of conviction and sentence. On this very point, he has referred to a judgment of the Hon'ble Supreme Court reported in C.M.Girish Babu v. C.B.I., Cochin, High Court of Kerala4 and placed reliance on paragraph Nos.18 and 19 of the judgment, which are quoted herein below:
"18. A three-Judge Bench in M. Narsinga Rao v. State of A.P {(2001) 1 SCC 691} while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed:
"..............we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao 4 AIR 2009 SC 2022 RK, J 13 Crl.A.No.176/2007 Joshi v. State of Maharashtra). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned Counsel: (SCC p.577, para 12) The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted `as motive or reward' for doing or forbearing to do any official act. So the word `gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like `gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word `gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
19. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification."
13. Sri A.Hariprasad Reddy, learned counsel for the appellant, has also argued that the defence taken by the appellant in his statement under Section 313 Cr.P.C. was not required to be simply ignored by the learned trial Judge. He submits that in his statement RK, J 14 Crl.A.No.176/2007 recorded under Section 313 of Cr.P.C. the appellant had categorically stated that the complainant had thrusted the bribe amount in his shirt pocket and in view of the defence taken by the appellant as well as in the light of the judgment of the Hon'ble Supreme Court reported in Punjabrao v. State of Maharashtra5, the learned trial Judge was not required to simply ignore the plea of defence by the appellant and pass the impugned judgment.
14. Alternatively, learned counsel for the appellant has argued that if this Court is satisfied with the impugned judgment of conviction, this Court may take a lenient view on the question of sentence. He submits that keeping in view of the old age of the appellant, the sentence which is for the period of 2 years may be properly reduced.
15. Sri S.M.Subhani, learned Standing Counsel for ACB, opposing the appeal and supporting the impugned judgment, submits that the prosecution has been able to establish the specific case of demand of illegal gratification for rendering official favour, its acceptance and also recovery from the possession of the Appellant/AO. According to him, it is true that the complainant, examined as PW.1, and his associate PW.2 during the trial were declared hostile. However, their entire evidence may not be ignored. He has specifically referred to the evidence of PW.1 at paragraph No.2, running Page 14(B). According to Sri S.M.Subhani, learned standing counsel, the complainant in his evidence had admitted that he had stated before 5 2002 (10) SCC 371 RK, J 15 Crl.A.No.176/2007 the learned Magistrate, at the time of recording his statement under Section 164 of Cr.P.C., that the appellant had demanded bribe of Rs.4,000/- for official favour. Similarly, PW.2 in his last paragraph of his cross-examination at page No.22 has supported the prosecution version. According to learned standing counsel, even in a case of hostile prosecution witness his entire evidence cannot be brushed aside and if there is something which supports the prosecution case those evidence are required to be taken note of.
16. Learned standing counsel has referred to Ex.P.18, running page No.103, to show that immediately after the appellant was trapped, he was given chance to explain regarding his defence, then he himself stated that after accepting the bribe money, he had handed over the file and cheque to the Complainant/PW.1, so that he may hand it over to Office Superintendent for issuance of cheque. He further submits that it is true that the statement of accused under Section 313 Cr.P.C. has got some substance but at the same time the defence which was taken by the appellant was taken at much belated stage and it is contrary to his own acceptance immediately after the trap before the mediator, PW.8, which is also reflected in Ex.P.18. Learned standing counsel has argued that PW.8, mediator, was an independent person from a different department and as such his evidence was rightly relied upon by the learned trial Judge. Besides this, the members of trap i.e., PWs.9 and 10 have also supported the prosecution case. According to learned standing counsel, in a trap case even evidence of police official cannot be ignored, rather it is very much relevant for deciding RK, J 16 Crl.A.No.176/2007 the prosecution case. Learned standing counsel has further argued that the prosecution with admissible evidence has established the recovery of the bribe amount from upper shirt pocket of the appellant and once in a trap case, prosecution establishes the recovery of the bribe amount, onus shifts on the accused to disprove the prosecution case, as per Section 20 of the PC Act. In such situation, presumption goes against the appellant and in favour of the prosecution. To substantiate his submission, he has specifically referred to paragraph Nos.13, 14 and 15 of the judgment of the Hon'ble Supreme Court reported in T.Shankar Prasad v. State of A.P6, which are quoted herein below:
"13. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.
14. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence, we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra {1998 (7) SCC 337} "A presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical 6 2004 (Crl.L.J) 884 RK, J 17 Crl.A.No.176/2007 reasoning" {1998 (Crl.L.J) 4592 : 1998 (AIR) SCW 3182 : AIR 1998 SC 3258}.
15. Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". That illustration can profitably be used in the present context as well when prosecution brought reliable materials that there was recovery of money from the accused. In fact the receipt and recovery is accepted. The other factor is the acceptability of the plea of loan, which the High Court itself has not held cogent or credible."
17. On this very point, he has referred to paragraph Nos.18, 19, 21 and 24 of the judgment of the Hon'ble Supreme Court reported in M.Narsinga Rao v. State of A.P7, which are quoted herein below:
"18. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence, we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra 1998 (7) SCC 337 : (1998 (AIR) SCW 3182 : AIR 1998 SC 3258 : 1998 (Crl.L.J) 4592) "A presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical reasoning".
19. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." That illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein 7 2001 (Crl.L.J) 515 RK, J 18 Crl.A.No.176/2007 smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the Court to draw a factual presumption that appellant had willingly received the currency notes.
21. From those proved facts the Court can legitimately draw a presumption that appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that appellant received the said amount.
24. Regarding the second limb of the contention advanced by Shri Nageshwar Rao, learned counsel for the appellant (that it was not gratification which the appellant has received) we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. [Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra (2001) Supple 2 JT (SC) 458 : (2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collection of two expressions RK, J 19 Crl.A.No.176/2007 adjacent to each other like 'gratification or any valuable thing.' If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it"."
18. Sri S.M.Subhani, learned standing counsel, on this very point has placed reliance on paragraph Nos.10, 14 and 17 of the judgment of the Hon'ble Supreme Court reported in State Rep. by CBI, Hyderabad v. V.G. Prem Raj8, which are quoted herein below:
"10. At this juncture, we must also express as to how the presumption was completely ignored by the High Court. Section 20 of the Act provides:
"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) Not relevant.
(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 8 AIR (2010) SC 793 RK, J 20 Crl.A.No.176/2007 opinion, so trivial that no inference of corruption may fairly be drawn."
It was argued, though feebly, that the presumption could not be drawn as the charge in this case was under Section 13(2) read with Section 13(1)(d) of the Act. It was pointed out by the Learned Counsel for the respondent-accused that Section 13(1)(d) did not attract the presumption under Section 20 of the Act. What is being ignored by the Learned Counsel for the respondent-accused is that the charge was not only under Section 13(1)(d), but also under Section 7 of the Act. Section 7 of the Act is as under:
"7. Public Servant taking gratification other than legal remuneration in respect of an official act: Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months, but which may extend to five years and shall also be liable to fine."
Now, there can be no dispute that prosecution in this case was alleging that the respondent-accused had accepted or obtained from Preetpal Singh Sodhi (complainant), gratification, which was other than the legal remuneration as a motive or reward for signing the contract or, as the case may be, for providing the schedule of work, so as to complete that contract. Therefore, there was no question of the presumption not being there, once it was proved that the respondent-accused had accepted the illegal gratification. Now, the evidence is very clear that firstly, the fingers of the respondent-accused were found to be RK, J 21 Crl.A.No.176/2007 soiled, which could not have been so soiled had he not touched the currency notes offered by the complainant; and secondly, it was found that those very currency notes were kept in the bag attached to the scooter. Lot of criticism was made that the scooter and/or the bag were not seized, ultimately from where the money was recovered. Now, in this behalf, the evidence of Preetpal Singh Sodhi (PW-1) is clear. He specifically deposed:
"As agreed, I paid M.O. 1 to the accused."
Now, the words "as agreed" in the deposition of the PW-1 (complainant) are extremely important, as the same signify that there was an agreement between the respondent-accused and the complainant that the complainant had agreed to pay Rs.5,000/- as bribe for the contract, its signing and for providing the schedule of work. The complainant further goes on to say that "the accused kept the money in the front bag of the scooter". Now, when we see the cross-examination of Preetpal Singh Sodhi (PW-
1), it is clear that nothing has been asked in respect of this version. It was feebly suggested to Preetpal Singh Sodhi (PW-1) that no amount was paid before executing Exhibits P-5 to P-8 or that it was not paid inside the hotel soon after the agreement. The witness had clarified on this situation that the amount was paid in the parking area. He very specifically mentioned in his cross- examination that he gave Rs. 5,000/- with his right hand and the respondent-accused accepted the money with his right hand. It has also come out in the evidence that the amount of Rs.5,000/- was taken out of the front bag of the scooter only after the hand wash test was completed. Some minor insignificant omissions have been brought, which were of no consequence. In the whole cross-examination, the story of demand of the respondent- accused prior to the contract and the acceptance by the respondent-accused near the scooter stand, has not at all been demolished. This, the High Court has completely ignored. Once this story becomes acceptable, there is no other go, but to raise a presumption under Section 20 of the Act. This important provision of Section 20 was also ignored by the High Court. This was again not a case falling under Section 20(3) of the illegal gratification from being trivial, so as not to raise presumption - inference of corruption. It was a substantial amount. Therefore, Section 20 of the Act could not have been ignored. The High Court has RK, J 22 Crl.A.No.176/2007 committed an error in ignoring this provision and ignoring the fact that the presumption had to be raised, and on that basis, it was up to the respondent-accused to explain as to how the amount came in his possession. In our opinion, this amounts to a perverse appreciation of evidence. This is the third aspect, on which the High Court has faltered.
............
14. The evidence of the respondent-accused is also perused by us, as much was made by the High Court of that evidence. The High Court, without even discussing the evidence in details, has gone to the extent of saying that the evidence of G. Premraj (respondent-accused & DW-1) has the effect of establishing the defence of the respondent-accused by preponderance of probabilities. The respondent-accused admits here in his evidence that on 27.05.1998, Preetpal Singh Sodhi (PW-1) telephoned him at about 1'O clock, asking him to come to Taj Mahal Hotel for signing the agreement. One wonders as to why the respondent- accused chose to accept this suggestion on the part of the Preetpal Singh Sodhi (PW-1) even if it is held to be true. Preetpal Singh Sodhi (PW-1), however, disowns telephoning the respondent-accused. The respondent-accused has raised a theory that when he returned to his scooter for proceeding after the signatures were obtained, Preetpal Singh Sodhi (PW-1) approached him and forcibly thrust the amount in his hands. Now, we fail to follow as to what could prompt Preetpal Singh Sodhi (PW-1) to thrust the money into the hands of the respondent- accused. In our opinion, his evidence was nothing, but a poor attempt to explain the change of colour of the Sodium Carbonate solution after his fingers were dipped in it. Such theory of thrusting the notes cannot be believed at all.
............
17. We are quite alive to the fact that unless the judgment of acquittal tends to be perverse or unless the inferences drawn in the acquitting judgment were not at all reasonable, possibly the acquittal should not be upset. However, in this case, as we have already pointed out, there was no scope for recording of finding of acquittal."
RK, J 23 Crl.A.No.176/2007
19. On the basis of evidences brought on record, learned standing counsel has argued that the learned trial Judge has rightly passed the judgment of conviction and sentence, which needs no interference.
20. Besides hearing learned counsel for the parties, I have also perused the entire evidence on record and after going through the same, prima-facie, I am of the opinion that learned trial Judge has committed no error in passing the judgment of conviction and sentence. However, it is necessary to briefly discuss the materials which have been brought on record during trial.
21. At the very inception, it would be necessary to firstly discuss the evidence of mediator namely C.Vasudeva Reddy, who was examined as PW.8. This witness on the date of trap was posted as Assistant Audit Officer in the Audit Office, Ongole. He deposed that on instruction of Audit Officer on 05.05.2000, he went to the office of Inspector, ACB, Ongole, along with one Satyanarayana, Junior Assistant, Drug Inspector Office, Ongole, who acted as mediator along with this witness. He stated that in the office of Inspector, ACB, Ongole, the Dy.SP, ACB, 3 Inspectors, ACB and 3 head constables were present. When he went inside the room, the complainant was called and he was introduced by the Dy.SP. A copy of FIR was furnished by the Dy.SP and instructed him to read out the documents. This witness further deposed that he read out the contents, which were acknowledged by PW.1 (complainant) as true and correct. Then, he and 2nd mediator put their initial on the RK, J 24 Crl.A.No.176/2007 copy of FIR which was marked as Ex.P.14. This witness further stated that Dy.SP questioned PW.1 (complainant) whether he brought the intended bribe amount which was answered by the complainant in affirmative and thereafter he handed over the same to him, which was counted by this witness. There were 6 currency notes of Rs.500/- denomination, 8 currency notes of Rs.100/- and 4 currency notes of Rs.50/- denomination, total of which amounting to Rs.4,000/-.This witness further elaborated regarding preparation of pre trap memorandum (mediators report No.1) and explained as to how demonstration was made regarding treating those currency notes with phenolphthalein powder and change of colour of water etc. He categorically stated that after preparation of 1st mediators report in evening the trap party accompanied this witness/complainant. Those currency notes were noted down in the mediators report.
22. His further evidence reveals that one constable was called by the Dy.SP and on his instructions, the constable applied phenolphthalein powder to the currency notes. The person of PW.1 was searched and nothing was found with him except a hand kerchief. The constable who treated the currency notes with phenolphthalein powder kept the same in the upper shirt pocket of PW.1. The Dy.SP instructed PW.1 not to touch the currency notes until there is a demand from the AO. He also instructed PW.1 to go to the AO and ask him about the bill, if he demands for a bribe, he has to pay the same to A.O. In case of demand and acceptance, PW.1 was asked to give signal by wiping his face with hand kerchief.
RK, J 25 Crl.A.No.176/2007 The Dy.SP asked PW.1 that if any person followed him, to which PW.1 told that PW.2 accompanied him and waited outside. PW.2 was called inside and the Dy.SP instructed PW.2 to accompany PW.1 to the office of AO and observe what would happen. The Dy.SP instructed the constable who treated the currency notes with phenolphthalein powder and discarded the glass tumblers etc., used for demonstration. The Dy.SP took the samples of sodium carbonate powder and phenolphthalein powder in two separate covers, sealed and labeled were signed by me and other mediators. The cover containing the sample of sodium carbonate powder was marked as MO.1 and the cover containing phenolphthalein powder was marked as MO.2. PW.8 drafted the mediators report touching the aforesaid events. 1st mediators report (pre trap memorandum) was marked as Ex.P.15, wherein he himself and other mediator i.e., Satyanarayana, Dy.SP and Inspectors signed thereon. Thereafter, PW.8, PW.1, the 2nd mediator, the DSP, 3 Inspectors and other staff of ACB proceeded in a jeep and car and stopped their vehicles near the Rural Police Station, Ongole. After PWs.1 and 2 got down from the vehicles, the Dy.SP reiterated his earlier instructions to them and consequently the trap party members took vantage positions near the vicinity. PW.1 returned to Dy.SP at 01:00 p.m. and told that the AO, who demanded the bribe amount, asked him to come at 03:00 p.m. as the clerk concerned to process the file was not available then. At 03:00 p.m. all of them reached near the Rural Police Station, Ongole and the Dy.SP reminded his earlier instructions to PWs.1 and 2. At 07:15 p.m. after receiving signal, PW.8, 2nd RK, J 26 Crl.A.No.176/2007 mediator, the Dy.SP and other Inspectors rushed to the office of AO. After entering into the office, they found one person, who is none other than AO. The Dy.SP introduced himself to the AO and hand fingers of both hands of AO were subjected to chemical test and both of them yielded positive result. The Dy.SP incorporated the narration of AO in the mediators report. The AO produced the tainted currency notes from his left side upper shirt pocket and the Dy.SP handed over the same to PW.8, who counted the tainted currency notes, compared the same with the serial numbers in the 1st mediators report and found the same tallying with each other. The Dy.SP seized the said currency notes from the AO, which was marked as MO.3. The inner linings of the shirt pocket of the AO were also subjected to chemical test. The seized shirt of the AO was marked as MO.4. The bottle containing the right and left hand wash of the AO were marked as MOs.5 and 6 and the bottle containing the wash of the inner linings of the shirt pocket of the Appellant/AO was marked as MO.7. On being asked by the Dy.SP, the Superintendent produced the note file, which is marked as Ex.P.8 and the vouchers were marked as Ex.P.7 and P.9. The A.E. brought the 'M' book, which is Ex.P-6, and asked the AO to certify the work done by PW.1 and in the meanwhile the trap was laid. The Superintendent produced Ex.P-1 letter and cheque book (Ex.P.10). Two cheques prepared in the name of PW.1 on 05.05.2000, marked as Ex.P10.A and Ex.P10.B were seized by the Dy.SP. The spiral note book being maintained by the AO was produced before the Dy.SP and got marked as Ex.P.16. Pursuant thereto PW.1 was RK, J 27 Crl.A.No.176/2007 called inside the room of AO and confronted to the version of AO, for which he denied the same and the same was incorporated in the mediators report. Later, PW.2 was called inside and was enquired by the Dy.SP and his version was incorporated in the mediators report. The Dy.SP arrested the Appellant/AO and released him on bail on his executing a self bond. Scene of the offence was observed by the Dy.SP. Rough sketch was prepared and marked as Ex.P.17. The Dy.SP took the sample of sodium carbonate powder in a cover, which was sealed, labeled and was attested by PW.8 and other mediator. The cover containing the sample of sodium carbonate powder is marked as MO.8. The 2nd mediator's report, which was attested by PW.8, another mediator and the Dy.SP was marked as Ex.P.18. Subsequently, the Dy.SP went to the house of Appellant/AO but found no incriminating material. The copy of search list furnished to the Appellant/AO under his acknowledgment was marked as Ex.P.19.
23. This witness was cross-examined at length. However, on examination of the same, I do not find any fact to disbelieve the evidence of this witness.
24. B.Sarath Babu, who worked as Inspector of Police, ACB, Ongole Range from 01.06.1998 to 20.02.2004, was examined as PW.9. In his evidence, he has stated that on 02.05.2000 at 03:00 p.m. the complainant (PW.1) came to his office at Ongole and presented a complaint against the Appellant/AO, which was marked as Ex.P.2. Thereafter, he informed the same to the Dy.SP, Nellore, RK, J 28 Crl.A.No.176/2007 over telephone and conducted a preliminary enquiry about the antecedents of both PW.1 and AO. The said enquiry revealed that the Appellant/AO was having bad reputation and was a corrupt officer, whereas PW.1/complainant was not having any ill motive to implicate the AO. Then, he submitted his report with an endorsement to the Dy.SP, Nellore, on 05.05.2000. He further deposed that he assisted during preparation of pre trap memorandum and post trap memorandum and on the instruction of Dy.SP, he took up further investigation in the case. During investigation, besides recording the statement of witnesses under Section 161 of Cr.P.C., this witness also got statements of PWs.1 and 2 recorded under Section 164 of Cr.P.C. before the learned Magistrate, Ongole. After completion of investigation, he obtained sanction order from the Government and filed charge sheet on 27.03.2001. This witness was cross-examined at length. However, after going through the same, I do not find any substance in cross-examination to consider the evidence of this witness as doubtful.
25. Sri D.V.S.S. Murthy, who worked as Dy.SP, ACB, Nellore, from August, 1997 to June, 2000 was examined as PW.9. He deposed that on 05.05.2000 at 05:40 a.m. the Inspector of Police, ACB, Ongole, handed over the complaint of D.Venkateswarlu, PW.1, with Inspectors endorsement thereon about his enquiry. Thereafter, a case was registered vide Crime No.5/ACB-NPK/2000 of ACB, Nellore Range, Prakasam District. He further deposed regarding preparation of pre trap proceeding in the office of ACB, Inspector, Ongole, which was made in the presence of two mediators i.e., RK, J 29 Crl.A.No.176/2007 PW.8 and one Satyanarayana, who was not examined. This witness further stated that he handed over the copy of FIR i.e., Ex.P.14 to PW.8 with a request to verify the genuineness of the contents of it with PW.1 (complainant). He further deposed that PW.8 read over the contents of FIR to PW.1 and PW.1 admitted that the contents of the FIR were true and correct. Thereafter, he asked PW.1 whether he had brought intended bribe amount of Rs.4,000/-, which was answered in affirmative and he produced a wad of currency notes. This witness further states that on his request, PW.8 received the same, verified and found the same to be correct and true. PW.10 further deposed almost in similar manner like PW.8. His evidence further reveals that on 05.05.2000 at 10:20 a.m. he along with 3 ACB Inspectors, 2 mediators, PWs.1 and 2 and 2 Head constables of ACB left the ACB office in a government jeep and private car and stopped the vehicles near Taluq police station center, and asked PW.1 to proceed to the office of Appellant/AO and asked PW.2 to follow PW.1. At 01:00 p.m., PW.1 returned from the office of Appellant/AO and informed that the AO ascertained from him whether he brought the bribe amount and only after confirmation he processed the file through his staff and asked PW.1 again to come at 03:00 p.m. as one P.Siva Rao (PW.3) was not available then. Again at 03:00 p.m., all of them reached opposite the gate of police parade ground and repeated the earlier instructions to PWs.1 and 2, who proceeded to the office of AO. At 07:15 p.m. they received the signal, immediately all the trap party members proceeded to the office of AO and reached there by 07:20 p.m. by which time PWs.1 RK, J 30 Crl.A.No.176/2007 and 2 came out of the office of AO and waiting there. Thereafter PW.10 along with mediators entered the office room of AO and found him sitting in his chair. PW.10 introduced the mediators to the AO and requested AO to rinse his both hand fingers in the sodium carbonate solution, upon dipping his fingers in the solution, the colour of the solution turned into light pink colour. He enquired the AO about the incident and accordingly incorporated his narration in the post trap memorandum. On his request, the AO produced the amount received by him to PW.8, who verified the serial numbers of the notes with the serial numbers noted in Ex.P.15, 1st mediators report, and found tallying with the same. Then, AO called the Assistant Executive Engineer, PW.6, who produced Ex.P-6 shirt and changed the same with an alternative shirt. Subsequently, PW.10 also subjected the inner linings of the pocket of MO.4 shirt of AO, the colour of the solution changed into pink colour and as such seized the shirt, MO.4. Thereafter, PW.10 questioned PW.5 about the incident and accordingly his narration was incorporated in the mahazar. He further deposed that he enquired AO about his movements from 03.05.2000 to 05.05.2000 and accordingly incorporated his reply in the mahazar. He arrested the AO by explaining the grounds of his arrest and on his request released him on bail. PW.10 prepared Ex.P.17, rough sketch of scene of occurrence, and drafted the trap proceedings. Ex.P.18 was completed by 00:30 hours on 06.05.2000. On the instructions of PW.10, PW.9 searched the house of AO but no incriminating material was found. Thereafter, he examined and recorded the RK, J 31 Crl.A.No.176/2007 statements of PWs.1 and 2 and on 07.05.2000 he entrusted further investigation to PW.9. This witness was cross-examined, however, on examination of the same, I do not find any substance in his cross- examination.
26. Of course PW.1/Complainant was declared hostile and a plea was taken by the learned standing counsel that he was gained over. Even then some facts he had accepted in his evidence and as such those materials are required to be taken note of. In his cross- examination at 2nd paragraph at running page 14(B), he stated in following terms:
"It is true that I stated before the Magistrate that the A.O. demanded me to pay a bribe of Rs.4,000/- on 03.05.2000. I singed in the statement recorded by the Magistrate but I do not remember the contents therein. I stated before the Magistrate that on 03.05.2000 at 03:00 p.m. I went to the ACB office, Ongole and presented a report against the A.O., the Inspector, ACB asked me to get ready with bribe amount of Rs.4,000/- and come to his office whenever called."
27. PW.1 further in his cross-examination at running Page 15 has admitted that again the Dy.SP. instructed him to pay the bribe amount to the AO, only on his further demand, and in case, the A.O. received the amount, to come out and give the signal by wiping his face.
28. Similarly, though PW.2, P.Raghunath, who had accompanied the complainant to the office of Appellant/AO was declared hostile, in his cross-examination, he admitted that he has stated before the Magistrate that he accompanied PW.1 to the AO on 03.05.2000 at RK, J 32 Crl.A.No.176/2007 11:00 a.m. and PW.1 requested the AO to issue cheque for Rs.54,000/- and then the AO demanded from PW.1 to pay illegal gratification of Rs.4,000/-. However, he took the plea that he was instructed by the Inspector, ACB, to give such statement. He further in his cross-examination stated that he also stated before the Magistrate that he himself and PW.1 went to the AO on the date of trap at 11:00 a.m., PW.1 requested the AO to issue the cheque for Rs.54,000/-. The AO enquired PW.1 whether he brought the demanded bribe amount of Rs.4,000/- and PW.1 gave reply positively. This witness further stated in his cross-examination that he stated before the Magistrate that on the date of trap at 07:00 p.m. he himself and PW.1 went to the room of AO and PW.1 requested the AO to issue a cheque and AO further demanded and accepted illegal gratification of Rs.4,000/- from PW.1 and handed over the file and cheque book to PW.1 with an instruction to handover the same to the Office Superintendent and to receive the cheque and then PW.1 handed over the file and cheque book to the Superintendent, came out of the office along with him and gave pre arranged signal. However, he voluntarily stated in his deposition that the entire statement was given by him to the Magistrate on the basis of draft given by the ACB.
29. It is true that both the witnesses i.e., PWs.1 and 2 were declared hostile but fact remains that in their cross-examination they had admitted that during investigation their statement under Section 164 of Cr.P.C. was got recorded and before the learned Magistrate they had admitted those facts, which I have referred hereinabove.
RK, J 33 Crl.A.No.176/2007 Accordingly, the entire evidence of PWs.1 and 2 cannot be brushed aside and some relevant facts which are in consonance with other evidences, which are admissible, can be taken note of. On examination of all the evidence in its entirety, it is difficult to accept the plea of the appellant that the bribe amount was thrusted in his pocket by the complainant; meaning thereby the Appellant/AO has miserably failed to rebut the presumption against him.
30. Besides oral and other evidences indicating approval of prosecution case, there are other circumstances, particularly, based on documentary evidence supported with other evidences which proves the prosecution case against the Appellant/AO. In this context, learned trial Judge has rightly elaborately discussed those materials in paragraph Nos.18, 19 and 20 of the impugned judgment, which may be treated as beneficial in deciding the present Appeal and as such those paragraphs of the impugned judgment would be beneficial to be quoted herein below:
"18. Men may lie, but the documents and the circumstances may not lie. In this case, admittedly a sum of Rs.54,211/- was payable to AO as per the note-file in page Nos.24 to 26 of Ex.P.8 file, which was seized at the time of trap proceedings from PW.5- Office Superintendent. PWs.4 and 5 put up a note file in pages 24 to 26 of Ex.P.8. In that it is stated that Sri Amman Bore-wells has to return material worth Rs.59,413-54 ps. The Irrigation Corporation for digging two bore-wells in Maddipadu I.C.D.S. Project used 40 meters of PVC Casing pipe, which was worth Rs.14,600/-. If it is deduced from the above cost of material, the Corporation has to get Rs.44,813.54 ps. the bore-wells company represented that at Besthavaripet, they fixed a hand pump and that they had returned 3 hand pumps and G.I. pipe to the office and if it is true, a sum of Rs.30,632.29 ps. have to be deducted RK, J 34 Crl.A.No.176/2007 from the above said amount and if it is done, the Irrigation Corporation has to get Rs.14,181.25 ps. from Sri Amman Bore- wells. Thereafter PWs.4 and 5 also brought to the notice of the AO in this note that a sum of Rs.11,550/- is under U.D.P. with regard to the construction of the platforms. If it is deducted, they have to get Rs.2,631.25 ps. from M/s. Amman Bore-wells. But the Irrigation Corporation has sent UC worth Rs.2,000/- of M/s. Amman Bore-wells to P.D. Warden and Child Development and if the AO agrees to deduct that amount from the amount of Rs.2,631.25 ps., the Irrigation Corporation can pay Rs.54,211/-, which is payable to PW.1. They also requested AO to bear it in mind about the delay in construction of platforms while passing orders. On that note-file, AO passed the following orders:
(1) "Until the bill finalized i.e., the rate pertaining to Platforms, we may kept Rs.2,000/- under U.D.P. until the receipt of balance material from the Agency. Keep Rs.2,000/-. Please pay duly deducting Rs.2,631/-;
(2) "Material returned by the Firm:- Three Pumps and its assembles and seen are pump fixed at Besthavaripet".
So, it is clear that he accepted the note-file, except UC worth Rs.2,000/- said to have been that of PW.1 sent to PD Warden and Child Welfare Department. So only he might have recommended for deducting Rs.2,631.25 ps. PW.4, who prepared the note-file in his evidence deposed that, "I prepared the note containing at Page Nos.24 to 26 of Ex.P.8 for payment of Rs.54,211/-. The note-file contains my signature at page No.26. Then AO approved the Note file after deducting Rs.2,631.25".
PW.5, in his evidence deposed that "PW.4 sent the note file relating to Amman Bore-wells in Ex.P.8. I verified the same and put my initial in page No.26. I forwarded the same to AO. He ordered for deduction of Rs.2,631/- towards the value of the material supplied by our department to PW.1 and approved the Note file. Thereafter PW.3 prepared final bill, pass orders."
PW.3, in his evidence deposed that, RK, J 35 Crl.A.No.176/2007 "On 05.05.2000 at 04:00 p.m. I received the file relating to Amman Bore-wells from the Superintendent LW.5- V.Nagaseshaiah to prepare final bill. I prepared pass order for Rs.2,08,000/- and odd and payment order for Rs.1,94,000/- and odd. Out of which Rs.1,60,000/- was deducted and final bill was prepared for Rs.34,940/- and odd. I forwarded the same to Superintendent Naga Seshaiah (LW.5). I made endorsement of pass order on the bill as well as in the M.Book. M.Book is marked as Ex.P.6 and the relevant entries at page Nos.81, 83, 84 and 85 are marked as Ex.P.6 (A). Ex.P.7 is the bill which contains the payment order. The payment order is in my handwriting".
PW.4, in his evidence further deposed that "On the same day I prepared the bills for Rs.16,569/-, Rs.1,44,250/- and Rs.48,071/-. I prepared the said bills in typing. In the bills I put my initials. I obtained the signatures of the AO and then sent to the Accounts Section i.e., PW.3 for verification and preparing pass orders. The bill for Rs.16,569/- is marked as Ex.P.9". PW.5, in his evidence deposed that "PW.3 prepared pass orders in the bills and sent Exs.P.6, P.7 and P.9 to me. I verified the same and prepared cheque for Rs.34,949.75 ps. The cheque book is marked as Ex.P.10 and the cheque prepared by me in the name of Amman Bore-wells for Rs.34,949.75 ps. is marked as Ex.P.10 (A). I sent Ex.P.10 cheque book to the AO for his signature. I sent the cheque book along with Ex.P.10(A) to the AO at 04:45 p.m. on 05.05.2000". Thus, by 05:00 p.m. by the time AO returned the Office, the pass orders and cheque were prepared. Thereafter AO signed in them. As per the prosecution at 07:00 pm. Both PWs.1 and 2 went to AO, and there AO demanded and accepted the bribe amount and sent the files, M.Book and Cheque Book of PW.1 through PW.1 and PW.1 handed over the same to PW.5 stating to PW.1 to receive the cheque under acknowledgment. As per the prosecution case, after handing over the records to PW.5, PW.1 came out and gave signal. By the time ACB raid party went there, M.Book Ex.P.6 was with PW.6, and PW.6 was writing a missing certificate in the M.Book. PW.6 in his evidence deposed that, RK, J 36 Crl.A.No.176/2007 "On 05.05.2000 I was on camp and came back to the Office at about 06:15 p.m. I went to my seat. PW.1 sent Ex.P.6-M.Book since there is missing of one certificate, it has to be certified by me in the M.Book. While I was filing up the missing entries, ACB officials came to our office and seized the M.Book".
As per the prosecution, this PW.6 in his 161 Cr.P.C. statement stated that he received the material from PW.1 prior to 04.05.2000, but on 04.05.2000 he did not record the same and that as he was in camp and due to pressure of work, he did not wrote that the materials were returned. In Ex.P.6-M.Book in Page No.83 in the bottom, he wrote as "Certified that". Before completing the sentence, this Ex.P.6 was seized from him. The same is stated by him while he was enquired at the time of trap proceedings. As per the admitted case, by then AO wrote endorsement No.2 on note-file that "Material returned by the Firm three pumps and accessories". PW.6 is not stating that the AO confirmed the return of the material from him. PW.6, in his chief- examination stated that, "On 04.05.2000 PW.1 returned the hand pumps to me and handed over the same in my office. On the same day I mentioned the return of material by PW.1 in the records".
So, he was treated as hostile by the Spl. Public Prosecutor and the relevant portion of his 161 Cr.P.C. statement is marked as Ex.P.11. If PW.6 had noted the return of the material in the relevant records, PWs.4 and 5 would have mentioned the same in the note file on 05.05.2000. AO has not produced any material to show that this PW.6 entered the returned material in the stock register.
19. From the above material, it is clear that even without ascertaining the factum of return of material by PW.1 from PW.6, the AO made the endorsements in the note-file. Thereafter the pass orders and cheque were prepared and AO signed in them. Thereafter only PW.6 tried to certify in the M.Book about satisfactory execution of the work by Amman Bore-wells. This also goes to show that even without obtaining the said certificate from PW6, the AO approved pass orders and issued cheque. These facts go to show that AO, without following the procedure RK, J 37 Crl.A.No.176/2007 and without ascertaining from PW.6 about the return of material, endorsed on the note-file, signed on pass orders and cheque, and thereafter tried to obtain the certificate of satisfaction from PW.6. Even though AO ordered to keep Rs.2,000/- in U.D.P. as the fixation of rates of platforms was not done, the same was not deducted while passing the pass orders and writing the cheque as none of PWs.3 to 5 are stating that they deducted Rs.2,000 from the amount payable to PW.1. PW.4, in his evidence deposed that on 05.05.2000 morning AO asked him to prepare note file of Amman Bore-wells. So, it is clear that on the instructions of AO, PW.4 prepared the note file and thereafter he made endorsement even though he is having knowledge about the note of cautions by PW.4, to be taken into consideration by AO before passing orders. These all goes to show that AO acted against the rules and against his own endorsement on the note-file. He did not enter into witness box to explain the things and to stand for cross- examination by the prosecution. He is the right person to explain the things. Otherwise, adverse inference has to be drawn against him in the circumstances of the case.
20. As per the prosecution case, AO did not state that PW.1 thrusted the tainted amount in his shirt pocket at the time of Ex.P.18-trap proceedings. Learned counsel for AO is contending that ACB officials did not write the said statement of AO. The trap proceedings were conducted in the Office of AO, for which he is the head. He is not stating that the other staff PWs.3 to 6 are hostile to him. If really AO had stated that PW.1 has thrusted the amount in his shirt pocket, the same would have been heard by PWs.3 to 6, or any one of them. But none of PWs.3 to 6 are stating the same. PWs.3 to 6 were enquired by the Dy.S.P. during trap proceedings in the presence of AO. So, at that time there is every chance for AO to speak his version in their presence. But none of PWs.3 to 6 are stating that AO stated this version at that time. AO is not an ordinary person. He was working as Dy. Executive Engineer and In-charge of Executive Engineer of Irrigation Corporation. He did not move his little finger to inform to the ACB officials about this plea. Thus, it is clear that at the earliest point of time, the AO did not take this plea. Only after PWs.1 and 2 turned hostile five years after the trap proceedings, he is taking this plea. So, it is clear that only after PWs.1 and 2 were gained over by him, he is taking this plea. Taking this plea is RK, J 38 Crl.A.No.176/2007 not sufficient, but he has to prove the same to rebut the presumption. But he has to prove this plea through satisfactory evidence, and it must be reasonable and probable in the circumstances of the case."
31. Besides this, the submission of learned counsel for the appellant that under Section 313 Cr.P.C. the appellant had taken the plea that bribe amount was thrusted, it is evident that said stand was taken for the firs time at the stage of recording statement under Section 313 Cr.P.C. which was recorded after conclusion of the prosecution evidence. Besides bald statement that too taken much belatedly no other material has been brought on record, which may be treated as rebuttal to the presumption under Section 20 of the PC Act. On the other hand, on examination of entire evidence, which I have discussed hereinabove, the prosecution in the instant case was able to establish the case of demand of bribe by the Appellant/AO for official favour to the complainant, acceptance of bribe amount of Rs.4,000/- by the appellant and its recovery. Even for the time being, if it is accepted that the bribe amount was thrusted in his upper shirt pocket, in that event, there was no reason to find substance of phenolphthalein powder on the hands of the Appellant/AO; meaning thereby that the appellant had accepted the bribe amount and he kept the same in his upper shirt pocket and as such the defence of the appellant which was taken under Section 313 of Cr.P.C. is required to be simply ignored. After going through the entire evidence on record, I am of the opinion that the learned trial Judge has committed no error in passing the impugned judgment of conviction.
RK, J 39 Crl.A.No.176/2007
32. So far as the alternative submission of learned counsel for the appellant regarding reducing the sentence from two (2) years is concerned, I am of the opinion that in a case relating to Prevention of Corruption Act, no such lenient view is required to be taken. I am of the opinion that charge of corruption against the public servant is more serious than other conventional offences, since corruption is the origin of other crimes. Accordingly, I am not inclined to accede to the prayer of the learned counsel for the appellant for reducing the period of sentence.
33. Accordingly, the impugned judgment of conviction and sentence, dated 05.02.2007, passed by the learned Special Judge for SPE & ACB Cases, Nellore, in C.C. No.9 of 2001, is hereby approved and Appeal stands dismissed.
34. In view of dismissal of this Appeal, and since the appellant is on bail, the bail bond of the appellant is hereby cancelled and he is directed to surrender forthwith before the Court below for serving the remaining sentence, failing which the learned trial Judge may take appropriate steps for securing his presence.
________________________ RAKESH KUMAR, J Date: 15-05-2020 Dsh