Telangana High Court
Rekya Chowhan, Khammam Dt., vs The State Of Ap., Rep Spl.Pp For Acb ... on 14 February, 2025
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 1179 OF 2016
JUDGMENT:
The appeal is filed by the appellant/accused aggrieved by the conviction recorded by the I Addl.Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, CCC, Hyderabad, in CC.No.26 of 2015, dated 18.11.2016, for the offences under Sections 7 and 13(1)(d) r/w.13(2) of the Prevention of Corruption Act, 1988 and sentencing him to undergo Rigorous Imprisonment for a period of one year and to pay Rs.500/- for the offence under Section 7 of PC Act; to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- for the offence under Section 13(2) r/w.13(1)(d) of the P.C.Act.
2. Heard Sri C.Pratap Reddy, learned Senior Counsel representing Sri Sridhar Lonkala, for the appellant and Sri V.Ravi Kiran Rao, learned Special Public Prosecutor for ACB.
3. Briefly, the case of the prosecution is that on 27.9.2010, at 1:00 PM, a complaint (Ex.P1) was lodged by PW.1 before the ACB, Khammam against Sri Rekya Chowhan, the Accused Officer (Appellant herein), who was working as a Superintendent Officer in the Office of the Assistant Director, District Insurance, Khammam. PW.1, in his complaint, stated that his father, Md. Shamsuddin, 2 had worked as a Community Health Officer in the Department of Medical and Health at Julurupad Mandal and retired on 31.12.2009 upon superannuation. After retirement, his father filed an application before the Assistant Director, District Insurance, Khammam, requesting payment of his APGLI Policy amount. The policy number was 635864-A. Meanwhile, on 22.5.2010, PW.1's father passed away due to a heart attack. In August 2010, PW.1 and his mother received a letter from the APGLI office directing them to file a fresh application in the name of PW.1's mother. Accordingly, PW.1's mother filed a fresh application in the APGLI office on 3.9.2010, enclosing a legal heir certificate (Ex.P12). The appellant was working as a Superintendent in the said office, and when PW.1 and his mother met appellant, requesting the release of survival benefits, appellant demanded Rs.10,000/- as a bribe to process the claim. PW.1 expressed his inability to pay such a huge amount.
4. Again, on 20.9.2010, PW.1 and his mother visited appellant's office. Appellant informed them that the process was ongoing and inquired whether PW.1 had brought the bribe amount. PW.1 once again expressed his inability to pay. On 27.9.2010, PW.1 and his mother visited the office again, but this time PW.1 alone met appellant. Appellant informed PW.1 that the work was completed, 3 the DD was prepared, and demanded the bribe. When PW.1 expressed his inability to pay, appellant reduced the bribe amount to Rs 6,000 and instructed PW.1 to bring the amount to his office the next day. PW.1 left, stating he would return the next day with the money.
5. PW.1 informed his mother, who advised him to approach the ACB officials. Since PW.1 was unwilling to pay the bribe, he approached the ACB officials. Upon receiving the complaint, LW.12
- Inspector of Police, ACB, Khammam informed PW.8 - DSP, ACB, Warangal over the telephone. PW.8 instructed LW.12 to conduct an inquiry. After conducting the inquiry, PW.8 received the complaint from LW.12, registered a case in Cr. No. 8/ACB-WKH/2010 under Section 7 of the Prevention of Corruption Act, and obtained permission from the competent authority on 28.9.2010, at 2:30 PM, before taking up the investigation.
6. During the investigation on 28.9.2010, PW.8 secured the services of PW.2 and LW.3 as mediators and organized a trap against appellant. The pre-trap formalities--such as applying phenolphthalein powder to the currency notes, explaining its significance, noting down the serial numbers and denominations of the currency notes, etc.--were completed in the presence of 4 mediators, and the proceedings were recorded in Ex.P4 (Pre-Trap Proceedings).
7. On 28.9.2010, PW.1, PW.2, LW.3, PW.8, and his team proceeded to appellant's office. PW.1 entered appellant's office, where appellant was found sitting in his seat. Appellant allegedly demanded the bribe amount, and PW.1 handed over Rs.6,000/- to appellant. Appellant received it with his right hand and asked PW.1 to come the next day to collect the DD. PW.1 then exited the office and gave the pre-arranged signal to the trap party members. Upon receiving the signal, PW.8 rushed into appellant's office. PW.8 prepared a sodium carbonate solution, and when appellant dipped his fingers into the solution, the right-hand wash turned pink, while the left-hand wash remained colorless, vide MOs.3 and 4.
8. When DSP inquired about the tainted amount, appellant allegedly led them to the record room and pointed to the money, which was found placed between the files. PW.8 seized the currency notes/MO.5 from the files and subjected the contact portion of the files to a chemical test, which yielded a positive result, vide MO.7. Further, upon verification, the mediators confirmed that the currency notes tallied. In addition to seizing MOs. 1 to 7, Exs.P5 to P8 were also seized, and post-trap 5 proceedings were concluded and recorded in Ex.P10. PW.8 also prepared a rough sketch of the scene of the offence, which is Ex.P9. Thereafter, appellant was arrested and produced before the Hon'ble II Addl. Special Judge.
9. Sanction to prosecute appellnt was granted by the Principal Secretary of the Government, Finance (Admn-II) Department, AP, Hyderabad, being the competent authority to remove appellant. After completing the investigation, appellant was charge-sheeted for offences under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
10. The learned Special Judge having considered the evidence of the witnesses and also the documentary evidence, found that the prosecution proved the guilt of the appellant, and accordingly convicted him.
11. The defence of the appellant is that the initial burden was not discharged by the prosecution. He argued that unless the prosecution proves the demand and acceptance of the bribe amount through acceptable evidence, the presumption under Section 20 of the Act cannot be drawn automatically. Appellant stated that there was no evidence on record to show that he had demanded the bribe and that, apart from PW.1's self-serving 6 statement, there was no corroboration regarding the alleged demand and acceptance of the bribe amount. The prosecution, according to Appellant, failed to prove that there was a voluntary acceptance of the tainted amount. Appellant asserted that the police had brought the amount and falsely shown its recovery from the record room. He further claimed that the spontaneous explanation given by him was deliberately suppressed in the post- trap proceedings.
12. Appellant also argued that he was not the competent authority to release the survival benefits and that the Assistant Director, District Insurance Office, was solely responsible for processing and releasing the policy amount. He contended that no official favour was pending before him on the date of the alleged trap, i.e., 28.9.2010, and that the Demand Draft relating to PW.1 under Ex.P6 had already been dispatched to the relevant section on 27.9.2010.
13. Learned Counsel appearing for the appellant would submit that the appellant is not the competent person to release the government benefits etc., pertaining to the defacto complainant. In fact, PW.1-defacto complainant, PW.2-mediator, PW.3-Senior Assistant in the District Insurance Office and PW.5- 7 Attender-cum-Dispatch Clerk were declared hostile to the prosecution case. The prosecution failed to prove that there was firstly, demand of bribe and secondly, that any official favour with respect to the defacto complainant was pending as on the date of trap.
14. Learned Counsel further argued that the Demand Draft relating to PW.1 under Ex.P6 was already sent to the dispatch section on 27.09.2010 which is before the date of trap. The relevant entry was also referred as Ex.P7 in the Outward Register. Except the version of PW.1 regarding demand and acceptance of bribe, there is no corroboration to the evidence of PW.1. PW.1 stated that on the date of trap he kept the amount on the table and shook hands with the appellant. PW.3 stated that the appellant and his brother-in-law came to their office and thereafter, all three of them went outside to have tea. And while they were sipping tea, five or six persons came and caught hold of appellant and took him away. Similar is the evidence of PW.5. The Counsel further argued that the appellant gave his explanation instantaneously at the time of post-trap proceedings, that he is not aware about anything, and PW.1 has deliberately joined hands with some of his colleagues and involved him in a false case.
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15. Learned Counsel relied on the following Judgments rendered by the Honourable Supreme Court, High Court for the State of Telangana, and High Court of Judicature, A.P. at Hyderabad:
1. Mir Mustafa Ali Hasmi v. State of A.P. 1
2. A.Subair v. State of Kerala 2
3. B.Jayaraj v. State of Andhra Pradesh 3
4. P.Satyanarayana Murthy v. Dist.Inspector of Police and another 4
5. Dashrath Singh Chauhan v. Central Bureau of Investigation 5
6. K.Shanthamma v. State of Telangana 6
7. K.Shankar v. Stte of Andhra Pradesh 7
8. C.Giriprasad Babu v. State, ACB, Nizamabad Range, Nizamabad 8
9. Sk.Hussain v. State of Andhra Pradesh 9
10. J.Srinivasa Rao and others V. State of Andhra Pradesh 10
11. K.Ramakrishna v. State 11 1 AIR 2024 SC 3356 2 2010 (1) ALD (Crl.) 497 (SC) 3 2014 (2) ALD (Crl.) 73 (SC) 4 2015 (2) ALD (Crl.) 883 (SC) 5 2018(2)ALD(Crl.)952(SC) 6 2022 (2) ALD (Crl.) 43 (SC) 7 2023 (2) ALD (Crl.) 983 (TS) 8 2022 (1) ALD (Crl.) 96 (TS) 9 2020 (1) ALD (Crl.) 917 (TS) 10 2020 (1) ALD (Crl.) 507 (TS) 9
12. State v. R.Krishnaiah 12
13. Addala Subrahmanyam v. State 13
16. Learned Public Prosecutor countered the argument of the defence counsel and stated that there is no reason as to why PW.1 would implicate the appellant in a false case. The fact remains that the Demand Draft had to be given to PW.1, and the appellant being the concerned officer, was responsible to issue the same.
17. The allegation against the appellant is that he demanded bribe for processing the application submitted for withdrawal of PW.1's father's policy amount. As on the date of trap, the Demand Draft was not issued to PW.1. Ex.P6 is the copy of the Demand Draft seized on the date of trap. According to DSP, when the appellant was asked to produce Demand Draft pertaining to the Policy amount of PW.1's father, the appellant called PW.5 and informed that he was handling the dispatch section. PW.5 produced the Demand Draft-Ex.P6 dated 22.09.2010 for an amount of Rs.87,033/- drawn in favour of PW.1's mother. On enquiry, PW.5 stated that, the Demand Draft was not dispatched because on 27.9.2010, appellant gave him the said Demand Draft and informed him to not give the same to PW1 until he gives 11 2019 (2) ALD (Crl.) 125 12 2013 (1) ALD (Crl.) 331 (AP) 13 2013 (1) ALD (Crl.) 934 (AP) 10 instructions. Ex.P5 is the copy of Outward Register and the entry relating to PW.1's Demand Draft is marked as Ex.P7. PW.5 however, turned hostile to the prosecution case and did not state that the Demand Draft was asked to be retained by the appellant. According to PW6, in ExP5, it is mentioned that the cheque was handed over to the outward clerk on 27.9.2010 itself. PW.2, the independent mediator stated that all the official documents, letters, communications etc., would be handed over to the parties under their acknowledgments.
18. From the record Ex.P5, and the entry-Ex.P7 coupled with the evidence of PW.6, it is evident that the appellant had handed over the cheque to the Outward Clerk on 27.09.2010 itself. PW.5 deposed that Srinivasa Rao was the Section Superintendent of the outward sections and the appellant had nothing to do with the section from which the Demand Draft had to be dispatched. Similar is the evidence of PW.6, who stated that Srinivasa is the Superintendent, who was incharge of inward and outward sections.
19. PW.8-Trap Laying Officer stated that he neither collected any duty chart of the appellant, nor investigated regarding the authority of the appellant over the inward and outward sections. 11
20. In view of the above discussion, the case of the prosecution that the Demand Draft was deliberately withheld at the instance of the appellant, was not proved by the prosecution.
21. Another aspect which has to be looked into is the complaint which was lodged with PW6, against Sk. Babu, data entry operator who was engaged on an outsourcing basis. It was alleged that complaints were received stating that the said Sk. Babu was demanding bribes from the parties stating that they were meant for the staff. In Ex.D1, which is dated 29.10.2010 it is mentioned that Sk. Babu demanded bribe from the legal heirs of policy members of policy number 635864. From ExP7, it is evident that PW1 is the holder of policy number 635864.
22. PW.6 deposed that on 29.10.2010, the ACB Inspector came to his office and warned the said Sk. Babu not to interfere with the office affairs and reprimanded him for demanding Rs.5,000/- from the legal heirs of the policy holder of Policy number 635864. PW.6 further stated that he wrote a letter to his Director on 29.09.2010 narrating about the complaints against Sk. Babu and requested to transfer Sk. Babu to another office. PW6 also admitted that ExD1 is the Xerox copy of the letter he wrote.
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23. PW.3 is another witness who stated that Sk.Babu was working in the office on an outsourcing basis. It was informed that he was demanding bribes from the parties and all of them complained about Sk.Babu to the Assistant Director and the Director, Insurance. After the trap, Sk.Babu was transferred to another place. In the present facts of the case, the probability of Sk. Babu asking the bribe on behalf of the appellant cannot be ruled out.
24. PW.1 stated that on the date of trap i.e., 28.09.2010, when he entered into the office, he found the appellant in the record room. He later clarified stating that the appellant was in his seat when the demand was made. After demanding the amount, the appellant took PW.1 downstairs, observed the surroundings and again took PW.1 upstairs. On the way, appellant asked PW.1 for the money and PW.1 handed it over to the appellant. Appellant received the same, and asked PW.1 to collect the Demand Draft on the next day. Immediately, PW.1 gave signal to the trap party. Whether the demand was made is doubtful, and it is also doubtful whether the demand was in the room of the appellant or the record room. In the chief-examination, PW.1 stated that Appellant took PW.1 downstairs and then accepted the amount. However, in his cross- examination, PW.1 stated that he placed the amount on the table 13 and shook hands with the appellant. PW.1 was declared hostile to the prosecution case after cross-examination by the counsel for the appellant. In the cross-examination by the Special Public Prosecutor, PW.1 admitted that he has not stated about placing the amount on the table in his earlier statements.
25. PW.1 is the only witness to the alleged demand and acceptance of bribe by the appellant. He has given two different versions before the Court below. Once the contradictory versions are looked into, the evidence of PW.1 becomes doubtful and cannot be accepted, unless there is corroborating evidence regarding the demand. The reason for demanding bribe is for handing over the Demand Draft. Even according to the prosecution case, prior to the trap date itself, the Demand Draft was prepared and handed over in the inward and outward section as admitted by the witnesses PWs. 3, 5 and 6. The appellant had no authority over the inward and outward section. The recovery of the tainted currency was in between the files that was recovered at the instance of the appellant. The defence of the appellant is that PW.1 or the ACB officials might have placed the money in the record files. In the background of PW.1's admission that he had placed the money on the table and shook hands with the appellant, there arises a doubt regarding the demand and acceptance of bribe by the appellant, 14 and the consequent recovery. Other than the evidence of trap party members, the independent witnesses PWs.3 and 5, do not speak about the claim of the prosecution that the amount was recovered from the record files.
26. In view of the said discrepancies, regarding PW1's evidence of the admission of bribe, for which there is no other corroboration, and in view of the work pending with the appellant being completed, there arises doubt regarding the correctness of the prosecution version.
27. In view of the discrepant evidence, benefit of doubt is extended to the appellant.
28. Accordingly, Criminal Appeal is allowed, setting aside the conviction recorded by I Additional Spl.Judge for SPE & ACB Cases-cum-V Addl.Chief Judge, CCC, Hyderabad. The appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand discharged.
_________________ K.SURENDER, J Date: 14.02.2025 tk