Andhra HC (Pre-Telangana)
J.V. Ramana Murthy vs The State Of A.P,Rep. By Its Spl. Public ... on 1 June, 2015
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.405 of 2006
01-06-2015
J.V. Ramana Murthy..... Appellant
The State of A.P,Rep. by its Spl. Public Prosecutor,High Court of A.P,
Hyderabad.. Respondent
Counsel for Appellant : Sri G. Surapu Naidu
Counsel for Respondent : Sri Ghani A Musa
Special Public Prosecutor for ACB
<Gist:
>Head Note:
?Cases referred:
1) (2013) 3 SCC 721
2) (2002) 10 SCC 371
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.405 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the Accused Officer (AO) aggrieved by the judgment dated 13.03.2006 in C.C.No.26 of 2001 passed by learned Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad convicting him for the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C Act).
2) The factual matrix of the case is thus:
a) AOJ.V.Ramana Murthy worked as Junior Assistant in the office of General Manager (PW10), District Industries Centre (for short DIC), Kurnool from 14.08.1998 to 13.11.2000 and during relevant time he was the seat clerk looking after applications under PMRY. According to prosecution, B.Ramakrishnudu (PW1) who is doing business in Home needs at Nandyal made an application to PW10 on 02.10.2000 for sanction of loan under PMRY scheme for developing his business. While so, on 28.10.2000, PW1 went to DIC, Kurnool and approached AO to enquire about his loan application. At that time, AO informed that PW1s application was received and informed that willingness letter from any Bank of Nandyal has to be obtained in favour of Industrial Promotion Officer to advance the loan. So saying, AO allegedly demanded an amount of Rs.1,000/- for doing official favour and after negotiation reduced it to Rs.700/- and informed that unless he paid the bribe amount his loan application would not be processed.
b) Again, on 06.11.2000, when the complainant approached AO along with willingness letter issued by Vysya Bank Manager, he refused to receive the letter unless bribe amount was paid. PW1 again met AO on 08.11.2000 and on his demand paid Rs.300/- and handed over the letter issued by the bank. The AO while receiving the bank letter and bribe amount of Rs.300/-, demanded Rs.4,000/- for getting sanction of loan of Rs.1 lakh. On persistent request of PW1, AO reduced the amount to Rs.2,000/- and instructed to pay the said amount on or before 13.11.2000 otherwise his loan application would not be processed.
c) Unwilling to pay the bribe amount, PW1 lodged a complaint with PW11the DSP, ACB, Kurnool on 12.11.2000, who registered the same as case in Cr.No.10/ACB-KUR/2000 under Section 7 of PC Act on 13.11.2000 and took up investigation and successfully laid trap on AO by following the procedure. After completion of investigation, PW12the Inspector of Police, ACB, Kurnool laid charge sheet against AO under Section 7 and 13(1)(d) r/w 13(2) of PC Act.
d) During trial, PWs.1 to 12 were examined and Exs.P1 to P14 were marked on behalf of prosecution. D.W.1 was examined and Exs.D1 and D5 were marked on behalf of defence.
e) The trial Court on appreciation of oral and documentary evidence found the AO guilty of the charges under Sections 7, 13(1) (d) r/w 13(2) of P.C. Act, convicted and sentenced him to undergo R.I for a period of one year and to pay a fine of Rs.1,000/- and in default to suffer SI for three months on two counts. Both the sentences were directed to run concurrently.
Hence, the appeal by AO.
3) Heard arguments of Sri G.Surapu Naidu, learned counsel for appellant/AO and Sri Ghani A. Musa, learned Special Public Prosecutor (Spl.P.P.) for ACB cases.
4) The point for determination in this appeal is:
Whether the conviction and sentence passed by the trial Court are factually and legally sustainable?
5) POINT: In the instant case, the admitted facts would show that the accused has accepted Rs.2,000/- from PW1 just before trap and it is a further admitted fact that what he received was not a legal remuneration, in the sense that the said amount was not required to be paid by PW1 to AO in the form of fees or deposit to enable him to secure the loan. Prosecution through the evidence of PW1 could establish that the said amount was paid on demand by AO. In view of this, the mandatory presumption under Section 20 of PC Act follows to the effect that the AO has accepted the said amount as a motive or reward for doing an official favour. Therefore, in the instant case, the burden is on the AO to rebut the presumption.
a) In this regard, learned counsel for appellant/AO cited the decisions to the effect that accused can discharge his burden by showing preponderance of probabilities. In the decision reported in K.S.Panduranga v. State of Karnataka the Apex Court observed thus:
39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted.
b) In Punjabrao v. State of Maharashtra also the Apex Court held in similar lines as follows:
3.We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability
c) Thus, the precedential jurisprudence laid down by the Apex Court would show that the accused can successfully rebut the presumption by showing preponderance of probabilities and not necessarily by rigid proof. Hence, now the point is whether the AO could discharge his burden to the satisfaction of the Court or not.
6) AO in his attempt to rebut the presumption put forth the following arguments.
a) Firstly, he never demanded any bribe from PW1 and in fact, on 28.10.2000, 06.11.2000 and 08.11.2000 PW1 did not meet him at all and he did not demand bribe or receive Rs.300/- from him on 08.11.2000 and further, there was no occasion for him to demand bribe since by the date of trap no work relating to PW1 was pending with him as he already prepared the sponsor letter in triplicate under Exs.P10 and P12 on 10.11.2000 itself and was waiting for the signatures of Deputy Director (PW5) who was on leave from 10.11.2000 to 13.11.2000.
b) Secondly, on the date of trap i.e. 13.11.2000 also he did not demand any bribe from PW1, but PW1 came to his office and gave Rs.2,000/- out of Rs.2,500/- as part of membership fee payable by him for Southern Wonder World Resorts Limited under Ex.D1application and he promised to bring the balance amount of Rs.500/- along with photograph and went away and got him trapped in a false case by dubbing the amount given by him as bribe.
c) Thirdly, it is argued that PW1 on the instructions of his maternal uncleChalapathi implicated him in the false case.
d) Fourthly, it is argued that TLO registered a case and laid a false trap without conducting preliminary enquiry, which is mandatory.
7) In a trap case, the prosecution shall by cogent evidence establish demand and acceptance of bribe to sustain a charge under Section 7 of PC Act. In the instant case, for proof of these two vital ingredients there was no direct independent evidence except the evidence of PW1. So, in the considered view of this Court, the veracity of his evidence has to be scrutinized before analysing the arguments raised by AO.
a) PW1 is a resident of Nandyal and during the relevant period of offence he was unemployed and doing business in Home needs. In order to improve his business, he put up Ex.P2application to DIC office, Kurnool for loan under PMRY scheme. His application was received in DIC office on 03.10.2000. When there was no information for about three weeks, he went to DIC office on 28.10.2000 to enquire about his applications. He was informed that AO was the concerned clerk looking after PMRY applications. When he met AO, he informed that his application was received and would be fed into computer and asked him to obtain a willingness letter from any bank at Nandyal agreeing to provide him loan and at that time, AO allegedly demanded Rs.1,000/- as bribe. When PW1 expressed his inability, he reduced the amount to Rs.700/-. The further case of PW1 is that on 03.11.2000, he obtained willingness letter from Vysya Bank, Nandyal and on 06.11.2000 he went and met the AO. He enquired whether he brought the demanded amount, but PW1 replied that he could not secure the amount. AO refused to receive the letter and instructed him to bring the letter along with demanded money. Having no other go, PW1 returned and again went to DIC office on 08.11.2000 and met AO and gave only Rs.300/- along with willingness letter. The AO received the letter and amount and informed that PW1 would likely to get Rs.1 lakh as loan and demanded Rs.4,000/- as bribe for processing his application and sending the sponsoring letter to the bank. On the request of PW1, AO reduced the amount to Rs.2,000/- and instructed him to bring the said amount by coming Monday i.e. 13.11.2000 or otherwise his work would not be done. Unwilling to pay bribe, PW1 gave Ex.P1complaint to PW11TLO, who registered FIR and laid trap on AO on 13.11.2000 on which date, as per his instructions PW1 approached DIC office and paid the tainted amount to AO on his further demand and came out and gave pre-arranged signal to trap party who rushed and caught AO red handed.
8) This is precisely the case of PW1. Coming to veracity of his evidence, the facts and evidence would show that PW1 was a resident of Nandyal and he had no prior acquaintance much less enmity with AO to nurture grudge against him. The defence version is that at the instance of his uncleChalapathi PW1 foisted a false case against him. In this regard, in the cross-examination, PW1 stated thus:
I have an aunt in Kurnool, where I used to stay whenever I visit from Nandyal. The name of the husband of the said aunt is Sri Chalapathi, who is my maternal uncle. The said Chalapathi is Sub-Inspector Police. It is not true to suggest he worked earlier in ACB Kurnool range. I have married his eldest brothers daughter and I am not aware whether he worked as Head Constable in ACB earlier to it. The said Chalapathi is in fact my material uncle.
He denied the suggestion that Chalapathi was behind the complainant and at his instance to help the ACB and with the money provided by Chalapathi, he acted as tool in the hands of ACB and implicated AO in a false case.
a) Similar suggestions were put to PW11TLO also. PW11 stated thus:
It is not true to suggest that at that time Sri Chalapathi was the Sub- Inspector. I do not know the Chalapathi, Sub-Inspector produced complainant before me. The witness again says Chalapathi did not produce complainant before me. I do not know the complainant is closely related to Sub-Inspector, Chalapathi and that the complainant has married the elder brothers daughter of the said Chalapathi. He too denied the suggestion that TLO falsely implicated him.
b) So, at the outset, the AO could only extract one Chalapathi who is the maternal uncle of PW1 was a Sub-Inspector of Police and PW1 married the daughter of said Chalapathis elder brother. Except that AO could not elicit that Chalapathi was behind the instant case. Most interestingly, AO did not give any suggestion as to what was the need for Chalapathi to foist a false case against him. Unless such a suggestion showing the reason for Chalapathi to use PW1 as a stooge to implicate AO is given, it is difficult to accept the theory of AO. Thus, it must be said that AO failed to establish that he was implicated in a false case by PW1 and Chalapathi. So viewing in that angle, PW1 is an utter stranger to AO and there was no reason for him to foist a false case against him. Therefore, there is no reason to discard the evidence of PW1 on the aspects of demand and acceptance of bribe by AO.
9) Now, coming to first argument that AO had never demanded bribe and on 28.10.2000, 06.11.2000 and 08.11.2000 PW1 did not approach him and no official work was pending with him by 13.11.2000 is concerned, this argument is untenable. For the demand and acceptance of Rs.300/- on the above dates, as already stated, except PW1 there was no other independent witness. However, there is corroboration in the form of evidence of PWs.2 and 3 and Exs.P1 and P4. In Ex.P1, PW1 clearly mentioned about his meeting AO on 28.10.2000, 06.11.2000 and 08.11.2000 and his making demands for bribe, his paying Rs.300/- as bribe etc. facts. In the evidence of PWs.2 and 3the mediators have clearly stated that on the date of trap when they appeared before DSP, he furnished copy of Ex.P1 and they thoroughly read it and enquired PW1 about the truth of its contents and he affirmed that he voluntarily gave the complaint. It is interesting to note that though PW2 tergiversated during his cross-examination, still his evidence on the above aspect was not shattered. It was only elicited that the mediators did not obtain any statement from PW1 that he presented Ex.P1 voluntarily. Then, in Ex.P4first mediators report also it was mentioned that on enquiry by the mediators PW1 admitted that he voluntarily presented the complaint to DSP.
a) So, the above oral and documentary evidence cumulatively offer corroboration on the aspect of demand made by him. Since AO had no proven enmity with AO, it can be held that there is a ring of truth around his evidence. Then, the argument that no official favour was pending with AO and he already prepared sponsoring letter in triplicate under Exs.P10 and P12 on 10.11.2000 itself, and made ready for the signature of PW5 who was on leave from 10.11.2000 and 12.11.2000 is concerned, this plea is also not tenable. It is no doubt Exs.P10 and P12 would show that AO prepared sponsor letter relating to PW1 addressed to Branch manager, Vysya Bank Limited, Nandyal on 10.11.2000. It is also true that PW5, Deputy Director who has to sign on the sponsor letters availed optional holiday on 10.11.2000 whereas 11.11.2000 and 12.11.2000 being Second Saturday and Sunday were public holidays. It must be noted that by that count alone it cannot be said that no official favour was pending with AO and he did not demand bribe. It must be noted stamp on Ex.P2application would show that it was received by DIC office on 03.10.2000. Admittedly, till 10.11.2000 AO who was the concerned clerk did not prepare the sponsor letter. No reason was assigned for such long delay in not processing the application of PW1. So what could understood is that only after PW1 met him on 28.10.2000; 06.11.2000 and 08.11.2000 and made a part-payment of Rs.300/- the AO prepared the sponsored letter. Further, it was not elicited from PW1 that he knew that AO already prepared sponsor letter on 10.11.2000. So from these facts it can be visualised that though AO prepared Exs.P10 and P12 sponsored letters, he kept PW1 in darkness and was expecting demanded bribe amount to be paid by 13.11.2000. Therefore, the argument of AO that no official favour was pending with him and he did not demand bribe cannot be accepted.
10) The second argument is that on the date of trap i.e. 13.11.2000 AO did not demand bribe but he received Rs.2,000/- from PW1 under different circumstances. On 10.11.2000 for the first time PW1 met AO with Ex.P3 willingness letter and submitted to him and at that time also AO did not demand any bribe but informed that he would prepare sponsor letter and as the concerned officer was on leave he would get his signature by 13.11.2000. At that time, DW1 who was friend of AO was present. He was agent of Southern Wonder World Resorts Limited, Hyderabad. On 08.11.2000, AO joined as member in the Resorts scheme under Ex.D5 application form. In fact, on 10.11.2000 DW1 went to AOs office to collect Ex.D5 and DD. It was the case of AO that on hearing their discussion, PW1 evinced interest to take membership and DW1 explained him the enrolment procedure and asked PW1 to pay Rs.2,500/- as membership fees and fill up the application and sign it and leave them with AO, so that DW1 can come and collect from him later. PW1 agreed and informed that he would come back on Monday to AO, as he had to come on that day in connection with his loan and agreed to pay Rs.25,00/- and furnish photographs for enrolment in the scheme and PW1 left the AO. The vehement contention of AO is that on the date of trap PW1 came to him and filled up Ex.D1application and signed it and paid Rs.2,000/- for membership fee and left the office to bring the remaining amount of Rs.500/- along with photographs and later got him trapped.
11) To establish the above defence version AO mainly depends on oral evidence of PW2 and DW1 and Exs.D1 to D5. Hence, the question is whether the AO could probablise his defence theory. On a careful analysis of facts and evidence, it must be said that the AO could not probablise his defence version even by preponderance of probabilities for the following reasons.
a) Firstly, it is the case of AO that PW1 did not meet him on 28.10.2000, 06.11.2000 and 08.11.2000 but he met him for the first time only on 10.11.2000 and submitted Ex.P3willingness letter and at that time seeing AO and DW1 discussing about Resorts scheme he evidenced interest. PW1 on the other hand categorically denied the above suggestion. If really PW1 met AO for the first time only on 10.11.2000, there was no possibility for him to take along with him Ex.P3willingness letter, because until AO told him that he has to get willingness letter from a bank in his town expressing willingness to give loan to him, PW1 did not know that he has to secure such letter. It thus strongly implies that PW1 might have met AO earlier to 10.11.2000. Since Ex.P3letter was dated 03.11.2000, it can be inferred PW1 met AO prior to that date and on his instructions only secured Ex.P3 and submitted thereafter. Therefore, the version of PW1 that earlier he met AO thrice i.e. on 28.10.2000, 06.11.2000 and 08.11.2000 is more probable and believable than the defence plea of AO that he met him only on 10.11.2000. Further, except the interested testimony of DW1 who is the friend of AO, there is no believable evidence to show that PW1 met AO on 10.11.2000. AO could not extract this fact from any of his colleagues such as PWs.4 to 8. So, the defence version that PW1 met him only on 10.11.2000 is not believable.
b) Secondly, the explanation that AO received Rs.2,000/- from PW1 towards part membership fee but not as bribe was offered by AO for the first time during trial but not during the trap. On the other hand, in Ex.P7 second mediators report his explanation as recorded therein was as follows:
The DSP asked Sri J.V.Ramana Murthy to explain if he has any to explain. On that Sri J.V.Ramana Murthy stated that Sri B.Ramakrishnudu approached him at his seat and requested him to come to the Tiffin centre where the complainant himself offered money and handed over to him in force. He kept the said amount in the foldings of his purse in his hip pocket of his pant and returned to his office. While returning to his seat, just he was standing at the computer room to meet Sri Gopal Naidu IPO, Kurnool meanwhile, the ACB officers came and caught him.
12) It is true, we have precedential jurisprudence to the effect that merely because accused did not offer any explanation for possessing tainted amount before the trap officers and could offer an explanation during trial, on that ground alone his explanation need not be discarded if the explanation appeals to the conscience of the Court as genuine. In Punjabraos case (2 supra) the Apex Court held that if the explanation offered by AO during 313 Cr.P.C. is found to be reasonable, then it cannot be thrown away merely on the ground that he did not offer the said explanation at the time when the amount was seized. Be that it may, the situation in the instant case is quite different. AO in fact, offered spontaneous explanation in different manner as if PW1 took him to Vishnu Canteen and himself forcibly offered the money and so that he received and kept in his purse. This version is diametrically opposite to his defence during trial. If really the amount was forcibly offered by PW1 as mentioned in Ex.P7, nothing prevented AO to refuse but he kept the amount in his purse which infers his willingness to take the amount.
Then, the later explanation is concerned, as already discussed, that is only an after thought and not found in Ex.P7. It is claimed by AO that he gave spontaneous explanation and also produced Ex.D1application form before the TLO but the TLO deliberately omitted to mention his true version in Ex.P7. This is another unbelievable version because we will find in Ex.P7 the endorsement of AO to the effect:
Received the copy of proceedings containing pages P1 to P8.
Sd. x x x J.V.Ramana Murthy 13.11.2k.
This endorsement implies that after having gone through the contents he received the copy of Ex.P7. If the true version of his explanation was not recorded, nothing prevented him to refuse to accept the copy or accept under protest before the authorities. He did not make any protest before the higher officials of ACB or even before the trial Court at the earliest possible opportunity. All these would show his later explanation is an after thought. To cover up his laches AO elicited from PW2 as if he received copy of Ex.P7 without reading its contents. This answer of PW2 who is a hostile witness, is manifestly aimed at to help the AO and hence not believable because of his own admission during the cross-examination of Spl.P.P to the effect that what happened and conducted by Inspector was written by him (PW2) in Ex.P7 and what was written in Ex.P7 had happened there. In view of his categorical admission to the effect that true happenings during trap proceedings were only recorded in Ex.P7 there is no gain saying for AO to clamour that his true explanation was not recorded and he received copy blindly without reading. We presently discuss in detail the veracity of evidence of PW2.
13) As already stated supra, AO banks on the evidence of PW2 and DW1 to probablise his defence. PW2 is concerned, he is one of the mediators along with PW3 who participated in pre-trap and trap proceedings. In his chief-examination, he deposed in favour of prosecution by narrating all the incidents. However, in the cross-examination he gave a go-bye and supported the defence case. Hence, the Spl.P.P declared him hostile and cross-examined him with the permission of Court. Hence, now, the point is what is probative value of evidence of PW2 and whether it can be relied upon by the prosecution and defence.
On the aspects of appreciation and probative value of a hostile witness the Apex Court in its latest judgment in Paulmeli and another v. State of Tamil Naidu, Traffic Inspector of Police (MANU/SC/0505/2014) observed thus:
16. This Court in Ramesh Harijan v. State of U.P. (AIR 2012 SC 1979) while dealing with the issue held:
It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof (Vide: Bhagwan Singh v. The State of Haryana : AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa: AIR 1977 SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR 1991 SC 1853).
17. In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR 1996 SC 2766), this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh and others. (AIR 2008 SC 320); Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462); C. Muniappan and Ors. v. State of Tamil Nadu (AIR 2010 SC 3718); and Himanshu @ Chintu v. State (NCT of Delhi):(2011) 2 SCC 36).
Thus, the law can be summarized to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
a) So, the principle is that the evidence of a hostile witness need not be totally reject and it needs to be closely scrutinized and that portion of his evidence which is consistent with the case of prosecution or defence can be relied upon. Applying this test to PW2, it is important to note that he supported the prosecution case in chief-examination but deposed in favour of accused during the cross-examination. It is important to note that PW2 was examined in chief on 30.09.2003 and cross-examined on 20.10.2003. Thus, there was a gap of 20 days in between. If really what he deposed in the cross-examination in favour of defence side was true, there was no reason why PW2 did not speak those facts at the very first instance during his chief- examination itself. This implies that in the interregnum period he was won over by defence side. That was the only inference one can draw. The facts deposed by PW2 in the chief-examination were corroborated by PW3 another mediator who is an independent witness. On the other hand, there was no corroboration forthcoming from any reliable source for what he deposed in the cross-examination of AO. Hence, the AO cannot claim any advantage from the evidence of PW2 unlike prosecution.
b) Then DW1 is concerned, he is a friend of AO and so he is an interested witness. He spoke about the incident said to have taken place on 10.11.2000. Earlier, it was held that PW1s meeting AO on 10.11.2000 is unbelievable. Consequently, the evidence of DW1 is also unbelievable to that extent. Hence, his evidence will not help for the cause of AO.
c) Then, AO relies on Ex.D1application form. His claim is that at the time of trap he showed Ex.D1 to trap authorities and he also showed Exs.D2 to D5 during his house search. Ex.D1 is concerned, PW1 deposed that he did not know Vijayavardhan Reddy (DW1) and he submitted an application for membership in Southern Wonder World Resorts Limited and he did not fill up the application but he signed on it and Ex.D1 was the said application. However, there was no further suggestion that PW1 signed the application on13.11.2000 and delivered it to AO. Ex.D1 may at best show that PW1 was willing to take up membership in Southern Wonder World Resorts Limited and signed on it. However, it cannot be taken as proof positive that he tendered the application on 13.11.2000 and most importantly Rs. 2,000/- to AO towards membership particularly in the absence of such mentioning in Ex.P7. So, on a conspectus of facts and evidence it is clear that the AO could not rebut the presumption under Section 20 of PC Act.
14) It may be noted that a feeble attempt was made to show that the TLO registered FIR without conducting any preliminary enquiry because the report was lodged on 12.11.2000 which was a Sunday and trap was arranged on the very next day i.e. 13.11.2000 and as Ex.P1 was lodged on Sunday, there was no possibility for conducting enquiry with regard to antecedents of AO. This argument is untenable. Ex.P1 was received by DSP, ACB on 12.11.2000 at 10 AM, as per his endorsement on it. In Ex.P14FIR it was mentioned that after preliminary investigation the FIR was registered and investigation was taken up on 13.11.2000. PW11 in his evidence clearly deposed that he detailed all the facts to the Inspector to verify the contents of the complaint and to verify the antecedents of the complainant and reputation of AO and Inspector informed him after verification that PW11 was not ill disposed towards AO and reputation of AO was bad and having been satisfied and after contacting Head Office over phone and obtaining permission, he registered FIR. He denied the suggestion that he did not make any preliminary enquiry before registering FIR. It should be noted that preliminary enquiry is a sort of discreet enquiry which the ACB police will do through their secret source. Merely because 12.11.2000 happened to be Sunday it cannot be inferred that no information about the AO and complainant could be gathered. Hence, this argument does not stand to reasoning.
In view of the above discussion, it must be held that the judgment of the trial Court does not suffer the vices of perverse appreciation of facts and evidence to differ with.
15) In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court in C.C.No.26 of 2001. Consequently, appellant/AO is directed to surrender before the trial Court on or before 25.06.2015 and on such surrender, the trial Court shall commit him to jail for serving sentence.
As a sequel, miscellaneous applications pending, if ay, shall stand closed.
_________________________ U. DURGA PRASAD RAO, J Date: 01.06.2015