Telangana High Court
Tejavathu Bhava Singh, Nalgonda., vs The State Of Telangana, Rep Spl.Pp For ... on 5 June, 2023
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.673 of 2017
JUDGMENT :
This appeal is arising out of the judgment in C.C.No.18 of 2016 on the file of Principal Special Judge for CBI Cases, Hyderabad, wherein the appellant was found guilty for the offence punishable under Section 7 of the Prevention of Corruption Act (hereinafter referred as 'PC Act') and he was sentenced to undergo rigorous imprisonment for three (3) years and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for fifteen (15) days. He was further sentenced to undergo rigorous imprisonment for four (04) years, to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for fifteen (15) days for the offence punishable under Section 13 (2) r/w/ 13(1) (d) of the PC Act.
2. The case of the prosecution is that P.W.1-Ch.Ravi Kumar was running purified drinking water plant in the name and style of "Everest Purified Water Plant' at Nalgonda, since 2007. He was permitted to supply purified 2 drinking water in cans to District Office, FCI, Nalgonda as well as Buffer Storage Corporation, FCI, Godowns at Nalgonda in different quantities, for which he was raising bills every month and presenting them in the District Office. P.W.1 was receiving his charges upon passing of these bills through different channels, initially from housekeeping section through accounts section and finally by the District Manager in the office through cheques every month.
3. The accused was in charge of housekeeping in the above office, who demanded P.W.1 for illegal gratification of Rs.15,000/- being the amount paid every month by FCI office to him in respect of processing of monthly bills and to not to create any problem in future towards supply of purified drinking water cans. P.W.1 expressed his inability to meet such demand, therefore, the accused asked him to pay in two installments with 1st installment of Rs.7,500/- for presenting the bills for the month of August, 2016 and balance Rs.7,500/- in the succeeding month. After presenting the bills for the month of August, 2016, they 3 were processed in the office and on 21.09.2016, P.W.1 was asked to pay 1st installment of Rs.7,500/- by the accused in his office after 6:00 p.m. on which date P.W.1 received cheque for the month of August, 2016. As P.W.1 was not willing and intending to meet such demand of the accused, he contacted CBI and submitted a complaint to P.W.11 i.e., Inspector, CBI, Hyderabad (Trap Laying Officer) who was camping at Nalgonda along with his team on a secret mission, who inturn informed the same to the then DIG, CBI, Hyderabad. Upon registration of this case by P.W.12, Inspector, CBI, Hyderabad and as per the instructions of the then DIG, CBI, permission was granted to P.W.11 to lay trap against the accused. The said trap was successfully executed against the accused in the presence of mediators soon after receiving the tainted currency notes of Rs.7,500/- from P.W.1 between 7:20 p.m. to 7:30 p.m. Further, the tainted currency was recovered and the accused hands were tested positive to sodium carbonate solution. Later, the accused was arrested and was produced before the Court for judicial remand. Further sanction was accorded to prosecute the accused by the 4 competent authority under Section 19 of the PC Act. The Special Court took cognizance for the offences punishable under Sections 7 and 13(2) r/w 13(1) (d) of PC Act. Later, the charges were framed under the above said Sections, read over and explained to the accused in telugu language for which the accused denied the charges and claimed to be tried.
4. On behalf of the prosecution P.Ws.1 to 11 were examined and got marked Exs.P.1 to P.36 as well as M.Os.1 to 6.
5. The accused was examined under Section 313 Cr.P.C with reference to incriminating material of the prosecution evidence and the same was denied by the accused, but did not choose to examine any witness on his behalf. The accused filed his written statement contending that after receiving the report from the Water Testing Lab, he had put up a note to his superiors and apprehending that he was responsible, out of grudge and feeling that P.W.1 would not get the contract, P.W.1 at the instance of Sri Prakash- retired Grade-I Depot Manager (In-charge), FCI, who is the 5 brother of P.W.1 has falsely implicated him in the case. His statement further discloses that he never demanded any money nor received.
6. The trial Court framed the following point for determination:-
"Whether the prosecution has proved charges under Section 7 of PC Act and under Section 13(2) r/w.13(1)(d) of PC Act against the accused, beyond reasonable doubt?"
7. Heard the learned counsel for the appellant Sri Ch.Dhananjaya and the learned Special Public Prosecutor for CBI.
8. It is the contention of the learned counsel for the appellant that the complaint was made on 21.09.2016 and by the time of trap, the cheque was already disbursed. Therefore, there is no pending work against the accused in order to receive any illegal gratification. It is further contended that P.W.2 who is the Mediator for the trap has turned hostile and there is no independent witness before the Court to say as to the demand or recovery made from the accused/appellant except evidence of P.W.1 and the 6 trap laying officer. It is further contended by the learned counsel that the evidence of P.Ws.3 to 6 clearly disclose about the movement of process of the file and their evidence is no way helpful to prove the alleged trap. Even as per the evidence of prosecution witness, the orders of passing bills were from 12.09.2016 to 20.09.2016 and the alleged trap was laid on 21.09.2016 between 7:00 p.m to 7:30 p.m. and therefore, the question of illegal gratification for pending work would not arise and the same is not proved by the prosecution and prayed to set aside the orders of conviction judgment passed by the said Court.
9. In support of his contentions, leaned counsel for the appellant relied on the judgment of Apex Court in Pradeep S.Wodeyar vs. The State of Karnataka in Crl.A.No.1288 of 2021 dated 29.11.2021. He also relied on CM Girish Babu vs. CBI, Cochin, High Court of Kerala1, wherein it is held as follows:-
"A three-Judge Bench in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 while dealing with the contention that it is not enough that 1 [(2009) 2 SCC (Crl.) 1] 7 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 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 8 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.
20. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt (emphasis supplied) (See CD Jhingan vs. State of UP [AIR 1966 Supreme Court 1762] at page No.1764, para 4."
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10. On the other hand, learned Special Public Prosecutor for CBI contended that the prosecution was able to bring home the guilt of the accused for the alleged offences and therefore prayed to confirm the judgment of the trial Court.
11. The entire oral and documentary evidence need not be discussed, except to the extent necessary.
12. It is an undisputed fact that the accused was the Manager (General) in District Office, FCI, Nalgonda as on the date of the trap and further he was in-charge of housekeeping section. Apart from the evidence of P.W.1, the evidence of other witnesses also disclose that P.W.1 was running 'Everest Purified Water Plant' at Naglonda and was supplying water cans to District Officer as well as BSC, FCI Godowns Nalgonda since 2012.
13. Section 7 of the PC Act envisages as under:-
"Any public servant who,-- (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or 10 cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
14. Explanation is more important in this case. Accepting or obtaining or agreeing to accept or attempting to obtain from any person an undue advantage itself constitutes an offence. Further, the explanation clearly denotes that expression "obtains" or "accepts" or "attempts to obtain"
shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means for any pending works before him.11
15. It is relevant to mention that Section 13 of PC Act relates to misconduct of public servant.
16. As per Section 13 (1) (a) and (b) of the PC Act, a public servant is said to commit the offence of criminal misconduct, if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or if he intentionally enriches himself illicitly during the period of his office.
17. As per Section 13(2) of the PC Act, any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
18. In order to prove the offences against the accused, prosecution should establish that the public servant has accepted the bribe for doing an official favour with a dishonest intention to enrich himself.
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19. Ex.P-1 is the application of P.W.1 offering to supply purified drinking water to FCI District Office and FCI BSC, Nalgonda and Ex.P.2 is the reply dated 15.03.2012 issued to P.W.I, pursuant to his application for supply of water cans. Ex.P-4 is the water bill register maintained by BSC, FCI Godowns officer. As already stated supra, there is no dispute with regard to works being done and regular bills being paid by the accused.
20. The evidence of P.Ws.3 and 4 discloses about the process of file from one Section to other Section of the office. P.W.5 is the Manager of Storage and P.W.6 is the housekeeping tapal. All their evidences disclose about the process movement of file from one Section to other Section for approval of bills.
21. P.W.2 is the mediator for the trap who partly turned hostile. His evidence do not disclose as to the demand made by the accused to P.W.1 or about recovery of money from the accused.
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22. The evidence of P.W.4 clearly disclose that bills of P.W.1 will be processed in the first instance in housekeeping division, where they will be prepared and will be sent to their accounts division along with pass orders. These pass orders in housekeeping division will be prepared by the Assistants/P.W.6 and P.W.7. His evidence further disclose that they were preparing note in respect of such bills including pass orders after being signed by the accused which were being forwarded to the accounts division. Thereafter, the accounts division verifies the correctness of pass orders and the Accounts Manager will sign giving financial concurrence and later it will be forwarded to Area Manager. After approval of this pass order by Area Manager, the file goes back to housekeeping division, where, after retaining the file, pass order along with bill presented by the supplier will be forwarded to accounts division, where cheque will be prepared after entering in financial accounting package in computer system. His evidence further discloses that the cheque will be sent to housekeeping division for disbursal to P.W.1. 14
23. It is the specific evidence of P.W.1 that he submitted bills for the month of July, 2016 in the month of August 2016 and handed over them to inward section. Later, he met the accused on 03.08.2016 and 08.08.2016 since he has not received cheque towards his bills. He further testified that the accused informed him that the cheque would be issued after accepting the bill. According to P.W.1, he met the accused on 15th or 16th of August, 2016 for the same purpose. In that situation, he met District Manager, FCI, Nalgonda on 27.08.2016 and appraised his difficulties, for which P.W.3 issued him cheque on the next day i.e., 28.08.2016. P.W.1 further testified that on 03.08.2016 the accused demanded him to pay his one month income as bribe, when he presented Ex.P.9 and P.10 bills for the month of July. It is relevant to mention that P.W.1 himself has testified in his evidence that cheque was issued to him for July month's bill on 28.08.2016. It is also relevant to mention that the evidence of P.W.1 is not all reflected in Ex.P11/complaint, which was presented to CBI on 21.09.2016. Therefore, it can be construed that P.W.1 has improved his evidence beyond Ex.P11. 15 Ex.P11/complaint discloses that the accused has demanded bribe in presenting the bills i.e., Exs.P.7 and P.8 for the month of August. But, as on the date of trap, the cheque was already received by P.W.1.
24. As seen from the record, it is evident that trap laying officer laid trap on 21.09.2016, by which time the cheque was already issued to P.W.1. It is not at all explained either by P.W.1, Investigating Officers or P.Ws.11 and 12 as to why he has gone to the Office of the accused at 7:00 p.m., even after receiving the cheque. Furthermore, the Manager, housekeeping section has approved the pass order on 12.09.2016 for payment of Rs.14,920/- towards water bill for the month of August, 2016, which clearly discloses that the cheque was issued after approval of the pass order and there is no pending work before P.W.1 in order to receive or accept bribe by the accused for payment of bills for the month of August, 2016. Ex.P11 is the complaint wherein it is stated that one month bill has to be given as bribe by 19.09.2016 and Ex.P11 also discloses that P.W.1 received the cheque on 21.09.2016 i.e., prior to 16 presenting the report to CBI. After receiving the cheque for the pending bills, the present complaint/Ex.P.11 has been filed which clearly discloses that there is no work to receive any official favour from the accused in favour of P.W.1 so as to accept bribe from P.W.1.
25. The evidence of P.W.2, who is the mediator in this case clearly disclose that on 21.09.2016, the CBI has requested his superior to depute an Officer from the branch and on that Regional Manager, SBI, RBO, Nalgonda instructed him to meet CBI Inspector. Accordingly, he went to meet Inspector, CBI and his team at Room No.106, at Hotel Savera, Nalgonda. Thereafter, the Inspector introduced P.W.1 to him and also informed him the purpose of calling him to the place and also showed him the complaint/Ex.P.11 preferred by P.W.1. The evidence of P.W.2 clearly disclose about the phenolphthalein powder and sodium carbonate solution test and also about the currency notes which were collected from P.W.1 and also about tainting the currency notes in their presence. The evidence of P.W.2 further disclose that he accompanied 17 P.W.1 and went to the office of accused, where P.W.1 met the accused and saluted him and the accused reciprocated to the salute. In the meantime, three other persons who were waiting outside came to the accused, then the accused received a phone call and while he was speaking on the phone, P.W.1 asked the three persons to come later. The accused while speaking on phone went into the enclosure of Alimarahs behind his seat along with P.W.1 and two minutes later, they both came out from behind the Alimarahs. His evidence further discloses that he could not observe as to what happened inside the enclosure as he was sitting in the hall, which clearly disclose that P.W.2 did not witness either demand of money by P.W.1 or accepting the bribe by the accused. When Inspector asked the accused about the cash, the accused denied receiving of cash and expressed ignorance. The evidence of P.W.2 further disclose that the Inspector slapped the accused and then the accused took out the cash from his left trouser pocket and thrown the cash on the floor. As per the instructions of the Inspector, another mediator collected 18 the cash. Later, the hands of the accused were tested with sodium carbonate solution and the solution turned pink.
26. In the cross-examination, it is specifically testified by P.W.2 that he was instructed to follow P.W.1 in close proximity but by the time, he and P.W.1 went to the office of the accused, the accused was speaking on the phone and he do not know what happened behind the seat of the accused in the office room. It is the specific evidence of P.W.2 that paper labels were pasted to MO-1, MO-2 and MO-4 bottles and they have all signed on those lables. He further stated that he signed on Ex.P.16 and Ex.P.17 and do not know the details of the search covered under Ex.P.16.
27. The evidence of P.W.3 as stated earlier clearly discloses about the processing of the file. His evidence also discloses that pass order relating to the bill for the month of August, 2016 was initiated by P.W.1 in his housekeeping division, which bears the signature of the accused as Manager whereafter it was sent to Manager-Accounts. 19
28. In the cross-examination, it is specifically stated by P.W.3 that he did not have any acquaintance with P.W.1 and did not know if P.W.1 had any licence or ISI certification for his purification plant. He also testified that when the water supplied by P.W.1 was tested in the lab, he found that it could be consumed temporarily and not was advisable to consume for longer duration. He also testified that as on the date of cross-examination, they were not utilising the services of P.W.1 and was stopped in the month of March, 2017. P.W.3 categorically testified that there was no complaint against the accused prior to the alleged incident and in his experience, it takes three to four days to process this type of bill in their office. It was testified by P.W.3 that bill was cleared by the accused on 12.09.2016 and cheque was issued thereon on 21.09.2016 by the accounts department.
29. From the above evidence, it can be construed that if at all there is any demand for illegal gratification, the accused ought not have approved any pass order till he receives the illegal gratification from P.W.1. Furthermore, 20 it is his evidence that cheque would be prepared by the Accounts Department and cheque was disbursed on 21.09.2016 prior to the trap. It can be presumed from the evidence of P.W.2 that there is no demand for illegal gratification by the accused to P.W.1 and also his acceptance of bribe as he could not observe as to what happened behind the seat of the accused in his office. Further, there is every likelihood of keeping the money in the pocket of the accused. Ex.P-35 is the examination report of CFSL, Hyderabad. The document was marked before the Court. But, for the best reasons known to the prosecution, expert was not examined before the Court to prove the contents of the document. Marking of the document, proof of document and relevance of documents are three different issues. Simply marking of the document cannot be said to be the proof of the contents of the document. The person who has knowledge about the contents of the documents has to speak/testify before the Court to prove the contents of the document. In the present case, the prosecution has not made any effort to prove the contents of the document to corroborate with the 21 contents of the report by way of oral evidence. Presumption can only be drawn in respect of the offence under Section 7 of the PC act and not to the offence under Section 13 (2) r/w. 13(1)(d) of PC Act. In any event, it is only proof of acceptance of illegal gratification, the presumption under Section 20 of the PC Act can be drawn that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow if there is proof of demand.
30. In the present case, it is for the prosecution to prove that there is demand for illegal gratification. Except the evidence of P.W.1, there is no corroborating oral or documentary evidence before the Court to prove that there is demand for illegal gratification by the accused. Therefore, the primary facts which can be drawn on the basis of legal presumption under Section 20 of the PC Act are wholly absent. It is equally settled principle that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of the Apex Court reported in CM Girish 22 Babu's case (1 supra) and B.Jayaraj v. State of Andhra Pradesh2. In the aforesaid judgments of the Court while considering the case under Sections 7, 13 (1)(d)(i) and (ii) of PC Act, it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. The precedents laid down in the above said judgments also held that even presumption under Section 20 of the Act could only be drawn after demand and acceptance of illegal gratification is proved.
31. The relevant paragraphs in B.Jayaraj's case (2 supra reads as follows:-
"Before we analyze the evidence, we must note that we are dealing with Sections 7 and 13 of the PC Act as they stood prior to the amendment made by the Act 16 of 2018 with effect from 26th July 2018. We are referring to Sections 7 and 13 as they stood on the date of commission of offence. Section 7, as existed at the relevant time, reads thus:-2
(2014 (13) SCC 55) 23 "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.
(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a 24 position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
32. There are many contradictions from the evidences of prosecution witnesses and further there is no evidence for demand or acceptance of bribe by the appellant and the same is not proved beyond reasonable doubt. Furthermore, there is no evidence on record that illegal gratification was received for doing or forbearing to do any official act. The Apex Court time and again has stated that before recording the conviction under the provisions of the Corruption Act, the Court ought have to taken utmost care in scanning evidence. Once the conviction is recorded under provisions of the PC Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time, it is also to be noted that whether the view taken by the trial Court is a possible view or not, there cannot be any definite 25 proposition and each case has to be judged on its merits, having regard to evidence on record.
33. On perusal of the entire evidence on record, it can be construed that there is no official act to do in favour of the complainant/P.W.1 by the accused for receiving any illegal gratification and furthermore, there is no evidence on record to prove that there is demand or acceptance made by the accused, therefore, the conviction is liable to be set aside.
34. For the reasons stated supra, the Appeal is allowed and the impugned judgment in C.C.No.18 of 2016 dated 27.06.2017, on the file of learned Special Judge for CBI Cases, Hyderabad, is hereby set aside.
___________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 06.06.2023 dv