G. Govind Rao, vs The State Of A.P., on 11 June, 2020

[Cites 24, Cited by 0]

Telangana High Court

G. Govind Rao, vs The State Of A.P., on 11 June, 2020

Bench: K. Lakshman

               HON'BLE SRI JUSTICE K. LAKSHMAN

           CRIMINAL APPEAL Nos.1021 AND 1022 OF 2006

COMMON JUDGMENT:

Criminal Appeal No.1021 is preferred by the appellant - Accused Officer No.1, feeling aggrieved by the judgment, dated 28.07.2006, passed by the Principal Special Judge for SPE & ACB Cases - cum - IV Additional Chief Judge, City Civil Court, Hyderabad, in Calendar Case No.27 of 2001, while Criminal Appeal No.1022 is preferred by Accused Officer No.2.

2. Vide the aforesaid judgment, the trial Court found both the Accused Officers guilty of the charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short 'Act') and accordingly sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- and in default, to undergo simple imprisonment for one month each for the charge under Section 7 of the Act. The trial Court also sentenced the Accused Officers to undergo the very same quantum of punishment for the charge under Section 13 (1) (d) read with 13 (2) of the Act each.

3. The first charge levelled against Accused officer Nos.1 and 2 are that they being public servants employed as Junior Assistant and Senior Assistant respectively in the office of District Coordinator of Hospital Services, Hyderabad District, King Koti, Hyderabad, on 03.11.1998, at their office, have demanded bribe from PW.1. In pursuance of the same, Accused Officer No.1 accepted the bribe amount of Rs.2,000/- viz., @ Rs.1,000/- each from PW.1 - Mr. G. Harinath Babu, Junior Assistant in the office of the Government Civil Dispensary, Punjagutta, Hyderabad, as illegal gratification other than legal remuneration for doing official favour of 2 KL,J Crl.A. Nos.1021 & 1022 of 2006 getting exoneration from the charges, settle the bills of PW.1 and also for getting eight years special grade increment, and thereby both of them committed the charge under Section 7 of the Act. Yet another charge levelled against Accused Officer Nos.1 and 2 is that both of them by corrupt or illegal means or otherwise abusing their positions as public servants obtained for themselves pecuniary advantage to an extent of Rs.2,000/- from PW.1 as a motive or reward for doing the said official favour, and thereby both of them committed the offence under Section 13 (1) (d) read with 13 (2) of the Act.

4. The factual matrix of the case of the prosecution is as under:

(i) Mr. G. Harinath Babu - de facto complainant, PW.1 was Junior Assistant in the office of the Government Civil Dispensary, Panjasha, near Charminar, Hyderabad, at the relevant point of time. Earlier while he was working in Community Hospital, Tandoor, a charge memo was issued to him alleging that he did not attend the Audit Inspection, for which he has submitted his reply. Having not satisfied with the explanation submitted by PW.1, the Disciplinary Authority has appointed Dr. Nityananda Swamy as Enquiry Officer to enquire into the charges levelled against him. Once PW.1 attended the enquiry in 1996 and thereafter he do not know the further proceedings thereof.

(ii) On 27.10.1998, he received a memo from the Disciplinary Authority calling for his explanation as to why three increments should not be stopped. Thereafter, PW.1 requested the Disciplinary Authority to permit him to go through the inquiry report by way of submitting a letter dated 03.11.1998. PW.1 went to District Coordinator Office, King Koti to submit 3 KL,J Crl.A. Nos.1021 & 1022 of 2006 the letter dated 03.11.1998 for verification of inquiry report, Accused Officer No.1, Junior Assistant and Accused Officer No.2, Senior Assistant (Esst.3) called him and informed that the charge memo issued to him while he was working in Kamatipura was got closed, and for the purpose of closing the charge memo in respect of Tandoor office and also to release 8 years (SPG) Increment, they have demanded an amount of Rs.5,000/-

towards bribe. PW.1 requested them that he is not in a position to pay the said amount, for which they have informed that they have already put up a note and get the favour done.

(iii) On the request of PW.1, Accused Officer Nos.1 and 2 have reduced the said amount to Rs.2,000/- and informed him that if he does not pay the said amount, they would put the note against him for stoppage of three increments or one year service break so as to avoid 8 years increment and future promotions.

(iv) According to PW.1, the Accused Officers have threatened PW.1 in the manner stated above, he has not committed any mistake, even then Accused Officers have demanded bribe and if PW.1 fails to pay the said bribe amount, they would spoil his service and career. The Accused Officers demanded PW.1 to pay the said amount of Rs.2,000/- on 05.11.1998 at his office, or else they would spoil his service and career in the manner stated above. Accused Officer No.2 informed PW.1 in the presence of Accused Officer No.1 to pay the said amount to Accused Officer No.1 irrespective of his presence.

KL,J Crl.A. Nos.1021 & 1022 of 2006

(v) Since both the Accused Officers threatened him and since he was not interested to pay the said bribe amount, PW.1 approached the DSP, ACB, City Range, Hyderabad, lodged Ex.P1 - complaint on 05.11.1998.

(vi) On receipt of Ex.P1 - complaint, DSP, ACB registered a case by issuing Ex.P16 - First Information Report on the same day itself. Thereafter, PW.8 - DSP, ACB after conducting pre-trap proceedings, laid the trap against both the Accused Officers on the said date itself viz., 05.11.1998 and thereafter drawn the post-trap proceedings.

(vii) After completion of investigation, ACB officials filed charge sheet, the same was taken on file vide Calendar Case No.27 of 2001.

5. The trial Court framed the charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Act against both the Accused Officers. The Accused Officers pleaded not guilty and sought for trial.

6. Before the trial Court, during trial, the prosecution examined as many as ten witnesses as PWs.1 to10 and marked Exs.P1 to P16, besides exhibiting MOs.1 to 10. The Accused Officers have examined one witness as DW.1 and marked Ex.D1. Exs.X1 to X6 were also marked.

7. The trial Court on the analysis of the entire evidence, both oral and documentary, found the Accused Officers guilty of the aforesaid charges and accordingly imposed the sentence of imprisonments in the manner stated above.

8. Feeling aggrieved by the said judgment, the appellants - Accused Officer Nos.1 and 2 preferred the present appeals separately. 5

KL,J Crl.A. Nos.1021 & 1022 of 2006

9. Heard Mr. L. Ravi Chander, learned Senior Counsel, representing Mr. Sarang Afzul Purkar, learned counsel for the appellant - Accused Officer No.1 in Criminal Appeal No.1021 of 2006 and Mr. Badeti Venkata Rathnam, learned counsel for the appellant - Accused Officer No.2, and also Mr. T. L. Nayan Kumar, learned Additional Standing Counsel - cum - Special Public Prosecutor for ACB Cases, Telangana State.

10. Impugning the judgment, the learned counsel for the appellant - Accused Officer No.1 would submit that the prosecution failed to prove the very demand itself. He would further contend that in fact, there was no official favour pending with Accused Officer No.1 as on the date of lodging Ex.P1 - complaint or on the date of trap. He would further contend that there is no independent witness or mediator examined by the prosecution to prove the alleged demand of bribe. According to him, there are serious contradictions in the depositions of the prosecution witnesses. The ACB Officials have not conducted the trap by following the procedure. PW.8 - DSP, ACB did not conduct discreet enquiries on receipt of Ex.P1 - complaint. Admittedly, PW.1 is also a Junior Assistant in the same Department, in which the Accused Officers were working at the relevant point of time. In view of the same, normally there would be inter se disputes among them regarding seniority, personal issues and promotion etc. and, therefore, PW.8 - DSP has to conduct discreet enquiries with regard to genuineness of Ex.P1 and the allegations levelled therein. Absolutely, there is no evidence to show that PW.8 conducted discreet enquiries into the allegations leveled by PW.1 in Ex.P1. The letter dated 03.11.1998 said to have been submitted by pw1 requesting to furnish enquiry report was neither collected during investigation by PW.8 - DSP, nor filed during trial before 6 KL,J Crl.A. Nos.1021 & 1022 of 2006 the trial Court. The prosecution failed to prove the alleged demand of bribe amount of Rs.1,000/- each by the Accused Officers as alleged by the prosecution.

11. According to the learned Senior Counsel for the appellant - Accused Officer No.1, there is no evidence, more particularly, convincing evidence to show that PW.1 gave the said amount of Rs.2,000/- in two wads i.e., Rs.1,000/- each. Admittedly, disciplinary proceedings were pending against PW.1. There would be every possibility of PW.1 implicating the Accused Officers, who are working in the same Department in false case. Mere recovery of tainted currency notes is not sufficient to record conviction for the charge under Section 7 of the Act and the prosecution has to prove both demand and acceptance, which are sine qua non to record conviction under Section 7 of the Act.

12. The learned senior counsel would also contend that the Sanctioning Authority issued Ex.P14 - prosecution order without application of mind and without perusing the entire material as the ACB did not furnish the entire material for according sanction order. Even according to Ex.P14 - sanction proceedings, there is no mention about the material/record which was considered by the Sanctioning Authority while issuing Ex.P14. Therefore, Ex.P14 was issued without application of mind and, therefore, the same is non-est.

13. He would further submit that the Accused Officer No.1 was working in E-2 Establishment Section and was nothing to do with the disciplinary proceedings that are pending against PW.1 and also nothing to do with the alleged sanction of increment and promotion of PW.1. By 7 KL,J Crl.A. Nos.1021 & 1022 of 2006 referring the depositions of prosecution witnesses, the learned senior counsel would submit that there are serious discrepancies which are not corroborative.

14. The learned senior counsel would further submit that the Accused Officer No.1 has received the said amount of Rs.2,000/- towards repayment of loan and the said loan theory is consistent right from the post-trap proceedings till trial, but, the trial Court without appreciating the same, recorded conviction.

15. With the above said contentions, the learned senior counsel for the appellant - Accused Officer No.1 would submit that the finding of the trial Court convicting the Accused Officer No.1 is without any basis and, therefore, Accused Officer No.1 is entitled for acquittal.

16. Adopting the submissions made by the learned senior counsel for Accused Officer No.1, the learned counsel for the appellant - Accused Officer No.2 would further submit that the Accused Officer No.2 was not present at the time when trap was laid. Even as per the deposition of PW.1, Accused Officer No.2 never demanded any amount from PW.1. He would also submit that the ACB Officials did not conduct any preliminary/discreet enquiry before laying trap as per the principle held by the Apex Court in P. Sirajuddin v. The State of Madras1.

17. According to the learned counsel Accused Officer No.2 had worked in Establishment - III Section and he was nothing to do with the disciplinary proceedings, promotion and release of increments to PW.1. 1 . 1971 Crl.L.J. 523 8 KL,J Crl.A. Nos.1021 & 1022 of 2006 There was no official favour that was pending with Accused Officer No.2 as on the date of Ex.P1 - complaint. There is delay in reaching the FIR to the Court. The ACB Officials have prepared the entire trap proceedings to suit their convenience and as per their own whims and fancies without following the procedure. There are serious discrepancies in the depositions of prosecution witnesses, still, the trial Court recorded conviction against Accused Officer No.2 only basing on surmises and conjectures. Therefore, the findings of the trial Court are not based on record and, as such, the impugned judgment is liable to be set aside by acquitting Accused Officer No.2.

18. Supporting the judgment, Mr. T.L. Nayan Kumar, learned Additional Standing Counsel - cum - Special Public Prosecutor for ACB Cases, Telangana would submit that the loan theory put forth by the defence is nothing but creation of the Accused Officers in order to escape from the criminal liability. There is no spot explanation that was offered by them at the time of post-trap proceedings and, therefore, the said loan theory cannot be accepted. The prosecution has proved the guilt of the Accused Officers by examining PWs.1 to 10. There is corroboration in the depositions of prosecution witnesses. Though there are minor discrepancies, the same are not fatal to its case and can be ignored. The prosecution has proved the pendency of official favour, demand and acceptance of bribe amount by the Accused Officers, trap incident and recovery of tainted currency notes and also proving the chemical tests positive and, thus, the prosecution has proved its case beyond reasonable doubt, like any other criminal offences. 9

KL,J Crl.A. Nos.1021 & 1022 of 2006

19. He would also submit that the ACB Manual is only a guiding factor and it is not mandatory on the part of the ACB Officials to conduct discreet enquiries. Even then, the ACB Officials have conducted discreet inquiries before laying trap. The defence witness produced by the Accused Officers is a planted one in order to help them. PW.1 was recalled after three months of closure of his evidence and on filing a petition under Section 311 of the Code of Criminal Procedure. Earlier, there was no suggestion to PW.1 about Ramesh taking loan from PW.1. There was no resistance from Accused Officer Nos.1 and 2 and they were silent during trap proceedings and, thus, it shows that the loan theory put forth by the defence is nothing but created only to escape from the criminal liability.

20. According to him, the trial Court on the analysis of the entire evidence, drawn the presumption under Section 20 of the Act and recorded conviction against the appellants - Accused Officers. There is no circumstance or reason that warrants interference by this Court in the impugned judgment and prayed for dismissal of both the appeals.

21. In reply, the learned senior counsel for the Accused Officer No.1 would contend that there is no need to the accused to disclose their defence during post-trap proceedings and that the accused can disclose or put up defence theory during trial before the Court. In support of the said contention, he would rely on the decision of the Hon'ble Supreme Court in Reena Hazarika v. State of Assam2. He has relied on the decision rendered by the High Court of Rajasthan in Charan Singh v. State of Rajasthan3 with regard to burden of proof. The learned senior counsel 2 . AIR 2018 SC 5361 3 . 1990 (1) Crimes (HC) 330 10 KL,J Crl.A. Nos.1021 & 1022 of 2006 would also rely upon decisions in State v. Upadyayula Subrahmanya Sharma4 and K. Narasimhachary v. State Inspector of Police, ACB, Cuddapah District5 in support of his contentions.

22. The learned counsel for the appellant - Accused Officer No.2, would rely upon the decisions in S.V.S. Kodanda Rao v. State of A.P.6; Thulia Kali v. The State of T.N.7; Mukhtiar Singh v. State of Punjab8; A. Subair v. State of Kerala9; State of Kerala v. C.P. Rao10; P. Satyanarayana Murthy v. District Inspector of Police, State of A.P.11; B. Jayaraj v. State of A.P.12; State of Punjab v. Madan Mohan Lal Verma13; Dr. Navarathan Singh v. State of A.P.14; Kalukuri Lingaiah v. State15; State of Maharashtra v. Dilip Appasaheb Koli16.

23. With the said contentions and the proposition laid down in the above said decisions, the learned counsel for the Accused Officer No.2 would contend that in the present case, the prosecution has failed to prove the very demand itself and, therefore, the question of acceptance of illegal gratification by the Accused Officer No.2 does not arise. On the other hand, Accused Officer No.2 has established the defence theory that he has not received any amount at all. Even Accused Officer No.1 has received the said amount towards repayment of loan and it is consistent plea right from the beginning viz., post-trap proceedings and also examination under Section 4 . 2012 (1) ALD (Crl.) 740 (AP) 5 . 2003 (1) ALD (Crl.) 730 (AP) 6 . 2003 (1) ALD (Crl.) 933 (AP) 7 . 1972 Crl.L.J. 1296 8 . AIR 2017 SC 3382 9 . (2009) 6 SCC 587 10 . (2011) 6 SCC 450 11 . AIR 2015 SC 3549 12 . (2014) 13 SCC 55 13 . 2013 Crl.L.J. 4050 14 . 2006 (2) ALD (Crl.) 273 (AP) 15 . 2001 (2) ALD (Crl.) 779 (MP) 16 . 2005 ALL MR (Cri) 1934 11 KL,J Crl.A. Nos.1021 & 1022 of 2006 313 of Cr.P.C. Therefore, the said defence theory adapted by the Accused Officer No.2 is consistent and trustworthy. But, without appreciating the same, the trial Court recorded conviction only basing on surmises and conjectures. With the said contentions, the learned counsel prayed to allow the appeal, set aside the impugned judgment and acquit the appellant - Accused Officer No.2.

24. In view of the above rival contentions, the following points that arise for consideration:

i) Whether there was any official favour that was pending with the Accused Officers to do the same to PW.1 at the relevant point of time?

ii) Whether the prosecution could prove the guilt of the Accused Officers under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988?

iii) Whether the judgment of the trial Court is sustainable factually and legally?

POINT Nos. (i) to (iii):

25. The learned counsel for both the Accused Officers would submit that the de facto complainant - PW.1 was working as Junior Assistant in Medical and Health Department, particularly, Vaidya Vidhana Parishad, Civil Dispensary, Panjesha (near Charminar), Hyderabad, and the Accused Officers were working in the Office of the District Coordinator, King Koti, Hyderabad as Junior Assistant and Senior Assistant, respectively, at the relevant point of time. Both the Accused Officers and PW.1 were working in Medical and Health Department at the relevant point of time. There were disputes among them with regard to inter se promotion, seniority etc. As per ACB Manual, it is the duty of the ACB Officials to conduct discreet 12 KL,J Crl.A. Nos.1021 & 1022 of 2006 enquiries in the said cases to avoid implication of innocent people in false cases to take revenge. They would further submit that in the present case, the ACB Officials did not conduct any discreet enquiry on receipt of Ex.P1 - complaint from PW.1. Ex.P1 - complaint was received at about 11.30 a.m. of 05.11.1998, a crime was registered, Ex.P16 - FIR was issued at about 1.30 p.m., and trap was laid at 4.25 p.m. Therefore, the ACB Officials, more particularly, PW.8 - DSP, ACB and Trap Laying Officer without conducting discreet enquiry and without following the procedure, both pre and post trap, laid trap. In support of their case, the learned counsel for the appellants - Accused Officer referred to the depositions of PW.1, PW.3, PW.4 and PW.8 and also Ex.P1 - complaint and Ex.P11 - post-trap proceedings.

26. On the other hand, the learned Additional Standing Counsel would submit that ACB Manual is only a guiding document and it is not mandatory to the ACB Officials to conduct discreet enquiry on receipt of complaint. Even then, in the present case, PW.8 - DSP, ACB, has conducted discreet enquiries. IN support of the same, he has referred to the deposition of PW.8.

27. On perusal of Ex.P1 - complaint, it is specifically mentioned by PW.1 that he was working as Junior Assistant, Civil Dispensary, Panjesha at the relevant pint of time and prior to that he worked at Tandoor Community Hospital as Junior Assistant. It is also stated in Ex.P1 about issuance of charge memos, conducting of inquiry, show-cause notice dated 27.10.1998 to PW.1, calling explanation from him as to why three increments should not be deferred. PW.1 specifically stated in Ex.P1 that both the Accused Officers were working as Junior Assistant and Senior Assistant respectively 13 KL,J Crl.A. Nos.1021 & 1022 of 2006 in District Coordinator's Office, King Koti, Hyderabad. PW.1, in his deposition, also deposed in the same manner.

28. PW.3 - Assistant Financial Officer, PW.4 - Office Superintendent and PW.5 - District Coordinator of Hospitals, have also deposed about the said facts that the Accused Officer and PW.1 were working in the above said offices at the relevant point of time. PW.8 - Trap Laying Officer in his deposition deposed that on 05.11.1998, PW.1 came to him with Ex.P1 - complaint stating that the Accused Officers demanded bribe amount, he asked PW.1 to come after two hours and caused enquiries about the reputation of the Accused Officers. He has further deposed that on his satisfaction, he took permission from the Superior Officers, registered a case by issuing Ex.P16 - FIR.

29. During cross-examination, he has admitted that either in Ex.P1 - complaint or in Ex.P16 - FIR, there is no endorsement to show that he has conducted preliminary enquiry, obtained permission to register the crime. He has received Ex.P1 at 11.00 a.m., registered crime at 1.30 p.m. of 05.11.1998. There is no dispute that as per ACB Manual, the ACB Officials have to conduct discreet enquiry where the allegations pertain to inter se seniority, disciplinary proceedings, increments etc,.

30. In the present case, admittedly, PW.1 and the Accused Officers were working in the very same Department i.e., Medical and Health at the relevant point of time. PW.1 and Accused Officer No.1 were Junior Assistants and Accused Officer No.2 was Senior Assistant at the relevant point of time. It is also not in dispute that disciplinary proceedings were pending against PW.1. It is also relevant to note that during cross- 14

KL,J Crl.A. Nos.1021 & 1022 of 2006 examination PW.8 has admitted that he has not verified the character of PW.1 before proceeding for trap. Therefore, it is the duty of PW.8 - Trap Laying Officer to conduct discreet enquiry to avoid misuse of the provisions the Prevention of Corruption Act by PW.1 and to avoid illegal implication of the Accused Officers in trap cases as a measure of revenge by PW.1. Except a bald statement in chief-examination of PW.8, the prosecution failed to produce any evidence, either oral or documentary, in proof of the same. However, PW.8 has admitted that he has received Ex.P1 - complaint at 11.00 a.m., registered it at 1.30 p.m. on 05.11.998 by way of issuing Ex.P16

- FIR. He has further admitted that there is no endorsement on Ex.P1 or Ex.P16 to show that he has conducted preliminary/discreet enquiry. Thus, the prosecution failed to prove that the ACB Officials have conducted discreet enquiry in the present case.

31. The Apex Court in Sirajuddin1 held that before a public servant, whatever be his status is publicly charged with acts of dishonest which amounts to serious misdemeanor or misconduct and a first information is lodged against him, there must be some suitable preliminary enquiry into allegations by a responsible officer. The lodging of such a report against such a person, specially one who like the appellant therein occupied the top position in a Department, even if baseless, would do in calculable harm, not only to the Officer in particularly, but to the Department he belonged to, in general. In the said case, the Accused Officer was Chief Engineer, Highways and Rural Works, Madras and a complaint was made against him making allegations about want of rectitude of the Accused Officer had already reached the Government. The Chief Minister without directing to conduct preliminary inquiry into the said allegations, ordered for full- 15

KL,J Crl.A. Nos.1021 & 1022 of 2006 fledged inquiry by the ACB Officials. The Apex Court found fault with the ACB Officials in not conducting discreet/preliminary inquiry with regard to the genuineness of the allegations.

32. In another decision in Kalukuri Lingaiah15, where the de facto complainant approached the ACB Officials with a complaint that the Accused Officer therein ASI demanded bribe for not taking action against him and the complaint given by his wife, the Court held that on testing of the veracity of prosecution story, having regard to the normal human behaviour, the preponderance of probability and complainant's conduct without giving any complaint to the Superior Officials of the Accused, straightaway giving complaint to DSP, ACB and the ACB Officials without making any inquiry about the antecedents of the Accused Officer, straightaway laying trap is not justified. It further held that in said cases, it is appropriate to ACB Officials to conduct discreet inquiries to avoid implication of innocent people in trap cases.

33. As discussed supra, in the present case also, admittedly, PW.1 and the Accused Officers were working in the very same Department, almost in the same capacity, disciplinary proceedings were pending against PW.1 and even then, PW.8 - Trap Laying Officer without conducting proper discreet inquiry into the genuineness of the allegations made by PW.1 against the Accused Officers in Ex.P1 - complaint. As discussed supra, though PW.8 made a bald statement about conducting of discreet inquiry, but the prosecution failed to prove the same. Therefore, according to this Court, laying trap against the Accused Officers without conducting discreet inquiries is not justified.

KL,J Crl.A. Nos.1021 & 1022 of 2006

34. The trial Court, by referring to the depositions of PW.1 and PW.8, gave a finding that if the inquiries are lengthily conducted at that stage, there was possibility of leakage of trap against Accused Officer Nos.1 and 2, the source of information to the Investigating Officer with regard to antecedents of the Accused Officers, is a privilege, and he is under no obligation to disclose the said information. The trial Court further held that simply because PW.8 did not endorse on Ex.P1 or Ex.P16 that he conducted preliminary inquiry and that obtained permission to register the case, it is not helpful for the defence to come to a conclusion that without any such preliminary inquiries, PW.8 registered the said crime and issued Ex.P16 - FIR. But, the said finding of the trial Court is contrary to record and the law laid down by the Apex Court and High Court of Andhra Pradesh at Hyderabad in the judgments cited supra. As discussed supra, at the cost of repetition, PW.1 and the Accused Officer were working in the very same Department and almost in the same designation, disciplinary proceedings are pending against PW.1 and, therefore, it is the duty of the Trap Laying Officer to conduct discreet inquiry by following the guidelines of ACB Manual. The prosecution failed to establish about conducting of the said discreet inquiries by PW.8. Therefore, the said finding of the trial Court is contrary to record and the principle held in the above cited judgments.

35. The learned Senior Counsel, appearing for the appellant - Accused Officer No.1 and the learned counsel appearing for the appellant - Accused Officer No.2, would contend that there was no official favour pending with the Accused Officers at the relevant point of time and they never abused their official positions to do any favour to PW.1. They would refer to the depositions of PW.1, PW.4 and PW.8. They have also referred 17 KL,J Crl.A. Nos.1021 & 1022 of 2006 to Ex.P1 - complaint and Ex.P11 - post-trap proceedings and other proceedings.

36. On the other hand, the learned Special Public Prosecutor would contend that the Accused Officers were working in E-2 and E-3 Sections as Junior Assistant and Senior Assistant respectively and were in a position to do official favour of putting up of note and getting favourable order in favour of PW.1 at the relevant point of time and, therefore, they were in a position to do official favour to PW.1. According to him, to get the said work done, the Accused Officers have initially demanded an amount of Rs.5,000/- and the same was reduced to Rs.2,000/- at the request of PW.1.

37. In Ex.P1 - complaint, it is the allegation of PW.1 that a memo dated 27.10.1998 was issued asking him to submit explanation as to why three increments should not be deferred, for which vide letter dated 03.11.1998 requested the concerned to permit him to go through the inquiry report to enable him to submit his explanation effectively. According to PW.1, he went to the District Coordinator Office, King Koti, on 03.11.1998 to submit the said letter, the Accused Officers called him and informed him that they got the charge memo in respect of charges leveled against PW.1 while he was working at Kamatipura closed. For doing the said favour and also to get charge memo issued to PW.1 in respect of the charges leveled against him while he was working in Tandoor and also to get Special Increment for eight years, for which the application is pending, the Accused Officers have demanded Rs.5,000/- towards bribe. It is also stated in Ex.P1 that the Accused Officers have threatened PW.1 that in the event of non- payment of the said illegal gratification, they will move the file by putting 18 KL,J Crl.A. Nos.1021 & 1022 of 2006 up adverse note, so that PW.1 will not get eight years service increment, he will get one year service break and he will not get promotion in future. It is also stated in Ex.P1 that both the Accused Officers informed PW.1 to pay the said bribe amount of Rs.2,000/- to them on the evening of 05.11.1998 and Accused Officer No.2 informed PW.1 in the presence of Accused Officer No.1 that in the event of non-availability of Accused Officer No.2, the amount can be handed over to Accused Officer No.1.

38. PW.1, in his deposition, deposed that on receipt of memo on 03.10.1998, he approached the Senior Assistant (Accused Officer No.2) of the concerned Section, who in turn informed PW.1 that the memo was issued for stopping three increments cumulatively pursuant to the inquiry report. Then, PW.1 informed Accused Officer No.2 that he has not received inquiry report and requested him to furnish a copy of the same. Accused Officer No.2 informed PW.1 not to make the said issue complicated, the matter can be closed at that stage, so that PW.1 will get eight years increment, he would get a favourable note put up and get all the things done. For the said purpose, Accused Officer No.2 demanded a sum of Rs.5,000/- towards bribe from PW.1, and at that time, Accused Officer No.1, Junior Assistant was also present along with Accused Officer No.2. Since Accused Officer No.2 was the Senior Assistant, he looks after PW.1 file and Accused Officer No.1 being an assistant to Accused Officer No.2, both of them dealt with his file. PW.1 further deposed that he has informed Accused Officer No.2 that he was not at fault and told him that he will pay Rs.1,000/- each to the Accused Officers. The said version of PW.1 is contrary to the contents of Ex.P1 - complaint. In Ex.P1 - complaint, it is stated that PW.1 when he went to office of the District Coordinator, King Koti, both the Accused 19 KL,J Crl.A. Nos.1021 & 1022 of 2006 Officers called PW.1 and demanded Rs.5,000/- towards bribe to get the official favour done. Whereas, in his deposition, PW.1 deposed that Accused Officer No.2 demanded the bribe and at that time, Accused Officer No.1 was present. There is contradiction with regard to amount. It is relevant to note that though PW.1 specifically stated in Ex.P1 - complaint and also in his deposition that he has submitted a letter dated 03.11.1998 with a request to furnish copy of the inquiry report. Neither PW.8, nor PW.9 could collect the said letter during their investigation. The said letter was not filed even during trial. The said letter did not see the light of the day.

39. PW.4 - Office Superintendent in the office of the District Coordinator of Hospital Services, King Koti, Hyderabad, deposed about the procedure to be followed in the disciplinary proceedings and PW.5 - District Coordinator issued instructions to Accused Officer No.1 to look after the pending petitions in the office. During cross-examination, he has categorically admitted that Accused Officer No.1 had no concern with E-3 Section, and Accused Officer No.2 had no concern with E-2 Section. As per Ex.P9 file, warning memo was issued to PW.1 from E2 Section and it was dealt with by Accused Officer No.1, it was closed by issuing Ex.P3 warning memo dated 03.11.1998. The same was dispatched to the individual through Medical Officer on the same day. He has further admitted that after 03.11.1998, neither Accused Officer No.1, nor D.C.H.S, had anything to show official favour to PW.1 in connection with Ex.P9 file. Along with Ex.P8 (Service Register) pertaining to grant of Special Grade Increment Application, the Service Register of the applicant was not sent. Sending of Service Register and verification of entries in the Service Register is compulsory to grant Special Grade Increment. The application for the said 20 KL,J Crl.A. Nos.1021 & 1022 of 2006 grant of Special Grade Increment had to be processed by E-3 Section and Accused Officer No.1 had no concern with it and all the pending inquiries are to be cleared. After D.C.H.S. Signature, the charge memo would be dispatched to the party. He as further admitted that there were no laches on their part including Accused Officer No.2 in putting up notice to D.C.H.S. Only due to Circular for clearance of pending files was received, the file of PW.1 was taken up in the month of October, 1998. Accused Officer No.2 had put up the note on 26.10.1998, it was approved by D.C.H.S. on 27.10.1998 as found at page No.4 of Ex.P7. It is also further admitted by him that the role of Accused Officer No.2 would commence after receipt of explanation of PW.1 to the charge memo in putting up the factual position before the Officer and then to act in accordance with the orders of the Officer. He has further admitted that neither Accused Officer No.2 nor PW.4 or PW.3 had any scope to suggest any sort of action to be taken to the Officer.

40. PW.5 - District Coordinator of Hospital Services, deposed about issuance of instructions to clear the pending files. During cross- examination, he has admitted that the concerned clerk (Accused Officer NO.2) has to put up only factual aspect, he cannot recommend or suggest what course of action to be taken. The concerned clerk cannot influence him as to the course of action to be taken by him. Any action to be taken is exclusive prerogative.

41. PW.6 deposed about Ex.P14 and P15 sanction proceedings. During cross-examination, he has admitted that as per Ex.P3 warning memo dated 03.11.1998, no official favour was pending with Accused Officer No.1 21 KL,J Crl.A. Nos.1021 & 1022 of 2006 from E-2 section as official warning memo was already issued. Accused Officer No.2 was not competent or Sanctioning Authority to grant Special Grade Increment to PW.1.

42. PW.7 - Deputy Civil Surgeon, deposed that he has forwarded Ex.P8 file containing two letters, one of PW.1, dated 28.09.1998, his forwarding letter dated 12.08.1998 to the District Coordinator of Hospital Service, Hyderabad, and later on he has sent the Service Book of PW.1 to the said Office.

43. PW.8 - Trap Laying Officer during cross-examination categorically admitted that during post-trap proceedings only, he came to know that Accused Officer Nos.1 and 2 were working in E-2 and E-3 sections respectively, Ex.P3 (warning memo dated 03.11.1998) shows the file relating to PW.1 was closed with warning from E-2 Section relating to Accused Officer No.1. Files relating to PW.1 i.e. Ex.P7 and Ex.P8 were recovered at the instance of Accused Officer No.2 from E-3 Section. On submission of explanation to Ex.P4 memo, further action can be initiated.

44. During cross-examination, PW.8 further admitted that he did not find out during the course` of his investigation that whether Accused Officer No.1 also deals with the files of E-3 Section, so also Accused Officer No.2 deals with E-2 Section.

45. PW.9 - Inspector of Police, ACB - cum - Investigating Officer during cross-examination categorically admitted that as per Ex.P7 file, PW.1 has not submitted any request to furnish the Inquiry Report, on the basis of which, he was issued Ex.P4 - show cause notice calling for his explanation. 22

KL,J Crl.A. Nos.1021 & 1022 of 2006 PW.1 has not submitted any explanation to the said show-cause notice by the date of trap. Accused officer No.2 has to put up a note on receipt of explanation from PW.1 as to the factual position before DCHS for taking further action. Pending finalization of Ex.P4 show-cause notice, PW.1 cannot be sanctioned the Special Grade Increment. PW.9 further admitted during cross-examination that Accused Officer No.2 was not competent to sanction Special Grade Increment or to drop action on Ex.P4 notice issued against PW.1.

46. The above stated depositions, more particularly, admissions of PWs.4, 5, 8 and 9, would show that PW.1 did not submit his explanation to Ex.P4 show-cause notice. Further action would be initiated only on submission of explanation by PW.1. Accused Officer No.2 being the Senior Assistant was only in a position to submit note mentioning the factual position. Even according to the prosecution witnesses, in the manner stated above, both the Accused Officers were not in a position to do any favour to PW.1. It is also relevant to note that Dr. Nityananda Swamy has conducted inquiry into the allegations leveled against PW.1 with regard to non- attending of audit, inspection by him. The inquiry was held in 1996. The same was concluded by issuing Ex.P3 warning memo dated 03.11.1998. Though it is stated in Ex.P1 and in his deposition by PW.1 that he has submitted a letter dated 03.11.1998 with a request to furnish a copy of the inquiry report, the same was not filed by the prosecution. The said letter did not see the light of the day. Therefore, in view of the inconsistency in the depositions of prosecution witnesses, it can safely be concluded that there was official favour that was pending with the Accused Officers as on the date of trap i.e. 05.11.1998.

KL,J Crl.A. Nos.1021 & 1022 of 2006

47. The trial Court relied on the principle held by the Apex Court in Chaturdas Bhagwandas Patel v. State of Gujarat17, wherein it was held that if the Accused Officer has used his official position to extract illegal gratification, the requirement of law is satisfied. The trial Court also relied on the principle held in Shiv Raj Singh v. Delhi Administration18, wherein it was held by the Apex Court that where a public servant is charged on the allegation that illegal gratification was taken by him for doing or procuring an official act, it is not necessary for the Court to consider whether or not the accused was capable of doing or intending to do such an act. By referring to the said principle, the trial Court held that it is immaterial whether the Accused was capable of doing or intended to do an official act in favour of the complainant and since in the present case, both the Accused Officers were dealing with the file pertaining to the allegations, charges of misconduct against PW.1 and, therefore, they were in a position to get the official favour done to PW.1. The said finding of the trial Court is contrary to evidence, both oral and documentary. As discussed supra, the above said prosecution witnesses themselves categorically deposed that both the Accused Officers were not in a position to do any favour to PW.1. Accused Officer No.2 has to put up the note mentioning the factual position and Accused Officer No.1 is nothing to do with the file of PW.1. PW.5 - District Coordinator Hospital Services himself categorically deposed that it is his discretion to act upon the note put up by Accused Officer No.2 in respect of PW.1 and Accused Officer No.2 is nothing to do with the same. He has further admitted that Accused Officer No.2 cannot influence him in any manner. In view of the said specific evidence, finding of the Trial Court that 17 . AIR 1976 SC 1497 18 . AIR 1968 SC 1419 24 KL,J Crl.A. Nos.1021 & 1022 of 2006 the Accused Officers were in a position to get official favour done to PW.1 since they are dealing with files of PW.1 is without any basis and contrary to record. It is needless to mention that the burden lies on the prosecution to prove the pendency of official favour and that the Accused Officers were in a position to get the official favour done to PW.1 at the relevant point of time. The prosecution has to prove the same with preponderance of probability and beyond reasonable doubt by examining relevant witnesses. In the present case, the prosecution failed to do so.

48. Mr. L. Ravi Chander, learned Senior Counsel, representing Mr. Sarang Afzalpurkar, learned counsel for Accused Officer No.1 and Mr. Badeti Venkata Rathnam, learned counsel for Accused No.2, would contend that the prosecution failed to prove the very demand itself, which is sine qua non to record conviction under Section 7 of the Act. They would further contend that when there is no official favour that was pending with the Accused Officers and that they were not in a position to do any official favour or get the official favour done, the question of demanding illegal gratification by the Accused Officers as alleged by PW.1 does not arise. It is their further contention that PW.1, Junior Assistant, was facing disciplinary proceedings at the relevant point of time. He was in the habit of obtaining hand loans from the staff and accordingly he has obtained loan from Accused Officer No.1 in the presence of one Mr. Ramesh. PW.1 repaid the said loan amount of Rs.2,000/- to the Accused Officer No.1. There are serious discrepancies in the deposition of prosecution witnesses with regard to said alleged demand as alleged by PW.1 which cannot be overlooked or ignored. They would further contend that PW.1 has committed several misconducts while discharging his duties as Junior Assistant in the 25 KL,J Crl.A. Nos.1021 & 1022 of 2006 Department. A memo was issued to him on 31.08.1995 for absconding duty w.e.f. 18.08.1995 and for non-remittance of an amount of Rs.2,920/-. A crime was registered against him vide Crime No.37/2003 for the offence under Section 406 IPC on the complaint given by Smt. Varalakshmi. A charge memo was issued to him for not attending audit inspection, an inquiry was conducted against him, and the Inquiry Officer submitted his findings holding that PW.1 was guilty of the charges leveled against him. A warning memo was also issued to him in the said context. He was in the habit of taking and repaying the loans from the staff and the same was admitted by PW.1 during cross-examination.

49. They would further submit that with regard to alleged demand of bribe, the serious contradictions in the contents of Ex.P1 - complaint and deposition of PW.1 would show that PW.1 implicated both the Accused Officers in a false case. In Ex.P1, it is stated by PW.1 that when he went to District Coordinator Office on 03.11.1998 to submit a letter requesting to furnish a copy of inquiry report of Dr. Nityananda Swamy, both the Accused Officers called him and demanded him illegal bribe of Rs.5,000/- which was reduced to Rs.2,000/- at his request. In Ex.P1, it is also mentioned that the Accused Officer No.2 informed PW.1 in the presence of Accused Officer No.1 that the said amount has to be paid by 05.11.1998 evening and if the Accused Officer No.2 is not available, the amount can be paid to the Accused Officer No.1. Whereas, in his deposition, PW.1 deposed that when he went to the District Coordinator Office on 03.11.1998, Accused Officer No.2 called him and informed him not to get the issue serious and it can be closed at this stage for which Accused Officer No.2 will help in getting the favourable note. To do the said favour, Accused Officer No.2 demanded 26 KL,J Crl.A. Nos.1021 & 1022 of 2006 bribe and at that time Accused Officer No.1 was also present. Thus, there are major contradictions in the version of PW.1 with regard to the said alleged demand.

50. As discussed above, there was no official favour that was pending with the Accused Officers as on the date of submission of Ex.P1 - complaint. In Ex.P1, it is stated by PW.1 that he has received notice dated 27.10.1998 informing him as to why three increments should not be deferred. He has not submitted any explanation for the same. As per Ex.P1 and according to PW.1, he went to the District Coordinator Office on 03.11.1998 along with a letter with a request to furnish a copy of inquiry report. But, as per Ex.P3 warning memo, dated 03.11.1998, PW.1 committed the misconduct of temporary misappropriation of an amount of Rs.29,397/- while he was working at Civil Dispensary, Kamatipura, Hyderabad, his explanation was not satisfactory and, therefore, PW.1 was warned not to repeat such things in future.

51. In Ex.P4 - memo, it is mentioned that Dr. Nityananda Swamy, has submitted report holding that PW.1 was guilty of charges leveled against him i.e., not attending audit inspection and sought for explanation from PW.1. Even according to PW.1, the Inquiry was conducted in 1996 itself by Dr. Nityananda Swamy.

52. It is also relevant to note that to sanction Special Grade Increment, there should not be any disciplinary proceedings pending against PW.1. In the present case, even according to PW.1, disciplinary proceedings are pending against him. After submission of explanation to Ex.P4 - memo dated 27.10.1998 only further action would be initiated against PW.1. 27

KL,J Crl.A. Nos.1021 & 1022 of 2006 Admittedly, PW.1 did not submit explanation to Ex.P4 - memo on the ground that copy of inquiry report was not furnished to him. Neither the prosecution, nor PW.1 produced the alleged letter dated 03.11.1998 said to have been submitted by PW.1 with a request to furnish copy of inquiry report. On perusal of entire record, there is no mention about submission of the said letter to any concerned Official. The performance of PW.1while he was discharging his duties were not satisfactory and he has committed several misconducts as stated above which fact was not disputed by PW.1.

53. As discussed above, PW.1 was working as Junior Assistant in Medical and Health Department and Accused Officer No.1 was also Junior Assistant in E-2 Section and Accused Officer No.2 was Senior Assistant in E-3 Section in the office of the District Coordinator of Hospital Services, King Koti, Hyderabad. Except PW.1, the prosecution did not examine any other witness to prove the alleged demand of bribe by the Accused Officers. As stated above, there are major contradictions in the version of PW.1 in Ex.P1 - complaint and his deposition which cannot be ignored. More over, he was working in the very same Department and his conduct was not satisfactory. Therefore, his deposition is not trustworthy. PW.2 accompanying witness despite specific instructions, did not accompany PW.1 at the time of trap. PW.8 - Trap Laying Officer during cross- examination categorically admitted that as per vantage positions, the trap party was not in a position to see/observe PW.1 and Accused Officer No.1 in the office of Accused Officer No.1 which was in second floor. It is relevant to note that with regard to location of office of Accused Officer No.1, there are contradictions. According to PW.1, the office was in first floor, and according to PW.2 and PW.5, the office was in second floor. Of course, 28 KL,J Crl.A. Nos.1021 & 1022 of 2006 though it is a minor contradiction, but there is no corroborative evidence to cover up the said contradiction. As stated above, except PW.1, there is no other independent witness to speak about the alleged demand. The prosecution, thus, failed to establish the alleged demand made by the Accused Officers.

54. It is relevant to note that Accused Officer No.2 was not there at the time of trap and according to PW.1 and prosecution, he has handed over the amount to Accused Officer No.1 and at that particular point of time, Accused Officer No.2 was not there in the office at all. On the request of PW.8, Accused Officer No.2 came to office at 9.05 p.m. on 05.11.1998, the trap day, to hand over the files to ACB Officials. The said fact was also mentioned in Ex.P11 - post-trap proceedings. At the cost of repetition, the version of PW.1 with regard to demand of alleged bribe by the Accused Officers is contradictory. Even as per the prosecution witnesses, Accused Officer No.1 was working in E-2 Section and Accused Officer No.2 was working in E-3 Section. The charge memo was routed through E-2 Section, to which Accused Officer No.2 is nothing to do.

55. PW.1 vide his letter dated 28.09.1998 requested DCHS to sanction Special Grade Increment on completion of Five Years. The same was forwarded vide letter dated 12.10.1998 of Deputy Civil Surgeon. Admittedly, without Service Register and without verifying the entries therein, sanction of the said Special Grade Increment would not arise. PW.7

- Deputy Civil Surgeon has sent the Service Register of PW.1 only on 29.11.1998 and according to him, the Service Book was in his office from 12.10.1998 to 29.11.1998. Even as per the depositions of PW.8 and PW.9, 29 KL,J Crl.A. Nos.1021 & 1022 of 2006 Accused Officer No.2 was not competent to sanction Special Grade Increment or to drop action. Accused Officer No.1 was nothing to do with E-2 Section. Accused Officer No.2 has to put up a note on receipt of explanation from PW.1 with regard to factual position before DCHS. Even as per PW.5, District Coordinator of Hospital Service, Accused Officers were not in a position to do any official favour to PW.1 and it is his discretion to act upon the factual position on receipt of note. Even according to PW.5, Accused Officer No.2 cannot influence him in any way. It is also relevant to note that Ex.P4 - memo, one week time was given to PW.1 to submit explanation and the said one week was expired on 05.11.1998 i.e., trap day. It is not in dispute that PW.1 has received and acknowledged Ex.P4 - memo on 27.10.1998. By referring the same, learned counsel for the Accused Officers would contend that PW.1 hatched a plan to see that the punishment proposed under Ex.P4 should be deferred by hook or crook and in the said course of action, he has lodged Ex.P1 - complaint. Pursuant to the trap proceedings, the said file was not returned to the concerned Official i.e., PW.5 to enable him to proceed further and impose appropriate punishment on PW.1 on receipt of explanation to Ex.P4 memo. PW.5, during cross-examination, categorically admitted that ACB Officials have seized the file and the same was not returned to him and no further action pursuant to Ex.P4 was initiated. It is relevant to note that Ex.P1 complaint, trap and seizure of file was on 05.11.1998 and PW.5 gave his deposition on 16.02.2006, wherein he has categorically admitted that ACB Officials did not hand over Exs.P7 and P8 files back to him for further action and ACB Officials have not provided Photostat copies of the said files to him to enable him to continue action. Thus, the files were seized and no action against 30 KL,J Crl.A. Nos.1021 & 1022 of 2006 PW.1 was initiated pursuant Ex.P4 - memo. There is no explanation from the prosecution for the said contention of the Accused Officers. Neither PW.8 - Trap laying Officer, nor PW.9 - Investigating Officer investigated into various aspects including genuineness of Ex.P1 complaint, conduct of PW.1, the contents of Ex.P1 - complaint pertains to disciplinary proceedings and PW.1 and the Accused Officers are from the very same Department and, therefore, there would be rivalry/grudge between them with regard to various aspects, such as inter se seniority disputes, promotions etc. There is no explanation from the prosecution for the said lapses including the lapse of non-conducting of discreet inquiry as per ACB Manual.

56. It is settled principle that mere recovery of tainted currency notes is not sufficient and the prosecution has to prove both demand and recovery, twin requirements to record conviction under Section 7 of the Act. In Mukhtiar Singh8, the Hon'ble Apex Court has categorically held that the indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act has by now engaged the attention of this Court on umpteen occasions. The Hon'ble Apex Court by relying upon its earlier judgments in A. Subair9 and C.P. Rao10 held that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. In the said decision, the Hon'ble Supreme Court has also referred its earlier judgment in P. Satyanarayana Murthy11 and B. Jayaraj12 and held that mere possession and recovery of currency notes from an accused without proof of demand would not 31 KL,J Crl.A. Nos.1021 & 1022 of 2006 establish an offence under Section 7 as well as Section 13 (1) (d) (i) and (ii) of the Act and that the prosecution has to prove both demand and acceptance, twin requirements which are sine qua non to record conviction.

57. In Madan Mohan Lal Verma13, the Hon'ble Apex Court held that the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

58. By relying on the above decision, the learned counsel would contend that in the present case, the prosecution failed to prove the very demand and, therefore, the question of drawing presumption under Section 20 of the Act does not arise. He would further contend that in the present case, it is the consistent defence of the Accused Officers that there was no official favour pending with them and that the amount was received by Accused Officer No.1 towards repayment of loan and in fact, Accused Officer No.2 did not demand and did not receive any amount at all from PW.1. The said defence of the Accused Officers that Accused Officer No.1 received the said amount towards repayment of loan taken by PW.1 in the presence of DW.1 is consistent and on perusal examination of Accused Officers under Section 313 of Cr.P.C. It is relevant to mention that PW.3 - Assistant Financial Officer deposed that there was quarrel between PW.1 32 KL,J Crl.A. Nos.1021 & 1022 of 2006 and Accused Officer No.1 on the day of trap with regard to some loan amount. However, he was declared as hostile by the prosecution and nothing contra was elicited.

59. The learned Special Public Prosecutor would contend that the said loan theory of the Accused Officers cannot be believed since there is no spot explanation offered by the Accused Officers with regard to the said aspect. He would further submit that the Accused Officers invented the said loan theory only to get over from the present proceedings. He would further submit that the Accused Officers failed to plead and establish any animosity between them and PW.1. Therefore, the deposition of PW.1 can be believed and it is trustworthy.

60. On the other hand, the learned counsel for the Accused Officers would submit that for the accused there is no need to disclose their defence to the prosecution including during post-trap proceedings. The Accused Officer can prove the said defence during trial. The Hon'ble Supreme Court in Reena Hazarika2 by referring Section 313 Cr.P.C., held that the said Section cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an Accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313 (2), Cr.P.C.

61. The High Court of Rajasthan in Charan Singh3 held that onus of proof lying upon the accused is to prove his cases by a preponderance of probability. As soon as he succeeds in doing so the burden is shifted to the 33 KL,J Crl.A. Nos.1021 & 1022 of 2006 prosecution which still has to discharge his original onus that never shifts that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.

62. The High Court of Andhra Pradesh in Upadyayula Subrahmanya Sharma4 held that in the absence of any corroboration for PW.1's evidence, the lower Court rightly found favour holding that the defence version is probable.

63. In S.V.S. Kodanda Rao6 the High Court of Andhra Pradesh held that the defence of the Accused Officer taken under Section 313 Statement that he has received the amount towards repayment of the hand loan, the said plea established by preponderance of probability can be accepted.

64. To prove that Accused Officer No.1 has received the said amount of Rs.2,000/- from PW.1, he has examined DW.1 - Ramesh, who has specifically deposed about the payment of loan to PW.1 by Accused Officer No.1. Nothing contra was elicited from DW.1 during cross-examination.

65. In Thulia Kali7 the Hon'ble Apex Court held that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay 34 KL,J Crl.A. Nos.1021 & 1022 of 2006 in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.

66. It is trite to mention that Ex.P1 was received by PW.8 11.00 a.m. on 05.11.1998, crime was registered at 1.30 p.m. on the same day and Ex.P16 was issued. The same was received by the trial Court at 10.45 pm. Therefore, the principle held in the said case is not applicable to the facts of the present case since the same is with regard to delay in lodging the FIR.

67. In support of the said contention, the learned counsel for the Accused Officers relied upon the principle held by the Apex Court in Madan Mohan Lal Verma13 and also in Dr. Navarathan Singh14, wherein the High Court of Andhra Pradesh held that the complaint, the post-trap proceedings and the Section 161 Cr.P.C. statement etc., are not substantive pieces of evidence to be relied on directly without the contents being reiterated by the witnesses in either of the statements.

68. The learned counsel for the appellants have also relied upon the decision of Dilip Appasaheb Koli16, wherein the Bombay High Court held that the trial Court has to assess and analyze the entire evidence including the defence theory with regard to the receipt of money towards repayment of loan and if the trial court comes to a conclusion that the said theory is probable, then it has to rely upon the same while acquitting the accused. 35

KL,J Crl.A. Nos.1021 & 1022 of 2006

69. In Dilip Appasaheb Koli16, the Bombay High Court held that the trial Court has to assess and analyze the entire evidence including the defence theory with regard to the receipt of money towards repayment of loan and if the trial court comes to a conclusion that the said theory is probable, then it has to rely upon the same while acquitting the accused.

70. It is also relevant to note that according to prosecution, both the Accused Officers have demanded an amount of Rs.2,000/- towards illegal gratification from PW.1. There is no mention about the said demand and particular amount out of the said amount of Rs.2,000/- to be paid to each of the Accused Officers. PW.1 never stated that the Accused Officers have demanded Rs.1,000/- each from him towards bribe. Ex.P1 - complaint, Ex.P6 - pre-trap proceedings and Ex.P11 - post-trap proceedings are silent on the said aspect. PW.1, PW.2, PW.8 and PW.9 depositions are also silent on the said aspect. On the other hand, PW.2 specifically deposed that ACB Officials i.e., PW.8 divided the said amount of Rs.2,000/- into two wads i.e., Rs.1,000/- each and placed the tainted currency in the left side shirt pocket of PW.1 with instructions to PW.1 to pay bribe amount to Accused Officers only on demand. It is not the contention of PW.1 that Accused Officers demanded to pay Rs.1,000/- towards bribe each and it is the PW.8, who has divided the said amount into two wads. There is no explanation by the prosecution on the said aspect which is an important circumstance.

71. There is also major contradiction with regard to place of receipt of the said amount by Accused Officer No.1. As per PW.2, Accused Officer No.1 has received the amount in the visitors' room and as per PW.1, 36 KL,J Crl.A. Nos.1021 & 1022 of 2006 Accused Officer No.1 has received the said amount at the corridor. Though, it is a major contradiction, there is no explanation from the prosecution.

72. There is also major contradiction with regard to payment of the said two wads by Accused Officer No.1 and keeping the said amount with him. As per PW.1, he has handed over both wads to Accused Officer No.1 at corridor, he has received both the wards with his right hand, counted the amount, kept one wad in his left front wearing shirt pocket and the other wad in his right side pant pocket. As per deposition of PW.2, Accused Officer No.1 had taken out a wad of currency notes from his shirt pocket and another wad from his right side pant pocket. He has further admitted that it is mentioned in Ex.P6 - pre-trap proceedings at page No.3, PW.8 - DSP, ACB, instructed PW.1 to pay an amount of Rs.2,000/- to the Accused Officer Nos.1 and 2, it is not mentioned in Ex.P6 that PW.1 had to pay an amount of Rs.2,000/- either to Accused Officer No.1 or to Accused Officer No.2. Such instructions in Ex.P6 were given by the DSP to PW.1 hoping that both Accused Officer Nos.1 and 2 would be present at the office. He has further admitted that the same was mentioned in page No.2 of Ex.P11 - post trap proceedings. There is no explanation for the said major discrepancies and versions of PW.1 with regard to alleged demand of Rs.2,000/- towards bribe by the Accused Officers. There is no need to PW.8 - Trap Laying Officer to divide the said amount of Rs.2,000/- into two wads. Despite specific instructions of PW.8 to pay bribe amount of Rs.1,000/- each to the Accused Officers, according to PW.1, he has paid two wads to Accused Officer No.1. There is no explanation for the same by the prosecution. 37

KL,J Crl.A. Nos.1021 & 1022 of 2006

73. The learned counsel for both the Accused Officers have contended that in Ex.P16 - FIR, Shekar Reddy (Accused Officer NO.2) was shown as Accused Officer No.1 and Mr. Govind Rao (Accused Officer No.1) was shown as Accused Officer No.2, and whereas in charge sheet they have mentioned as vice versa. The only explanation given by the prosecution for the same is that Mr. Govind Rao has received the amount and, therefore, he was shown as Accused Officer No.1. Whereas, according to Ex.P1, both the Accused Officers have demanded bribe and in Ex.P1, it is specifically mentioned by PW.1 that Mr. Shekar Reddy informed him to pay the bribe amount to Mr. Govinda Rao, if Mr. Shekar Reddy is not available. The same was in the presence of Mr. Govinda Rao. In his deposition, PW.1 deposed that Mr. Sekhar Reddy (AO.2) demanded bribe amount and at that time, Mr. Govinda Rao (AO.1) was also present. There is no explanation for the said discrepancy. However, the trial Court held that since Mr. Govinda Rao received the amount from PW.1 and, therefore, the ACB Officials might have made the array of Accused Officers as Accused Officer Nos.1 and 2. The said finding is without any reasoning supported by depositions.

74. It is also contended by the learned counsel for the appellants that though Ex.P16 - FIR was issued at 1.30 p.m. on 05.11.1998, the same was received by the trial Court at 10.45 p.m. on the same day. Even as per Ex.P11 - post trap proceedings, the trial proceedings were concluded by 11.50 p.m. The distance between the ACB Office including place of trap and the Court is hardly two kilometers. By referring the same, the learned counsel for the appellants would contend that the ACB Officials have not conducted the trap proceedings in a transparent manner and they have conducted the same as per their own whims and fancies just to implicate the 38 KL,J Crl.A. Nos.1021 & 1022 of 2006 Accused Officers in a false case for the purpose of statistics at the instance of PW.1. On the other hand, the learned Special Public Prosecutor would contend that ACB Officials were busy with trap proceedings and Ex.P16 was sent to the trial Court and due to administrative reasons, it was received at 10.45 p.m. on the trap day and that the same is not fatal to the case of prosecution. He would further contend that the prosecution has proved the trap, recovery of tainted notes, chemical tests turned positive and, therefore, on consideration of entire evidence, the trial Court has rightly convicted the Accused Officers vide impugned judgment. He would further contend that it is not proper for the Accused Officers to take advantage of the same and argue that the ACB Officials have not conducted the trap by following the procedure.

75. On perusal of the entire evidence, admittedly Ex.P16 was registered at 1.30 p.m. on 05.11.1998 and the same was received by the trail Court at 10.45 p.m. on the same day. The distance between the ACB office and the trial Court is hardly two kilometers. Even then, there is no explanation for the said delay.

76. The learned counsel for the appellant would submit that Exs.P14 and P15 sanction proceedings were not issued in accordance with law. The ACB Officials did not place the entire material before the Sanctioning Authority to enable it to consider the same and come to a prima facie conclusion that the Accused Officers can be prosecuted. On perusal of Exs.P14 and P15, sanction proceedings, there is no mention about the material placed before the Sanctioning Authority and the material considered by it while issuing the said proceedings. PW.6 - Assistant Section Officer deposed about issuance of sanction proceedings by the Sanctioning 39 KL,J Crl.A. Nos.1021 & 1022 of 2006 Authority to prosecute the Accused Officers. As per Exs.P14 and P15, FIR, mediators reports and final report were forwarded by the DG, ACB and on consideration of the same, having satisfied that there is a prima facie case against the Accused Officers, sanctions have been accorded. However, during cross-examination, he has categorically admitted that it is not mentioned in Exs.P14 and P15, in which particular section of District Coordinator of Hospital Services, Accused Officers Nos.1 and 2 were working at the relevant point of time, whether they were working in E-2 and E-3 Sections respectively. As per Ex.P3, no official favour was pending with Accused Officer No.1 from E-2 Section as official warning was already issued. Accused Officer No.2 was not competent authority to sanction Special Grade Increment to PW.1. Accused Officer No.2 was called from his house during post-trap proceedings. The nature of description of documents perused by Sanctioning Authority in Exs.P14 and P15 is not mentioned. It is relevant to note that PW.6 worked with the Officer who has issued Exs.P14 and P15 sanction proceedings at the relevant point of time. The said depositions and contents of Exs.P14 and 15 would show that there is no mention about the relevant documents placed by the ACB Officials before the Sanctioning Authority and equally there is no consideration of the same by the Sanctioning Authority while issuing Exs.P14 and P15 - sanction proceedings.

77. However, the learned Public Prosecutor would contend that there is no need of mentioning all the documents while issuing the prosecution sanction orders by the Sanctioning Authority with regard to prima facie case and the satisfaction arrived at to prosecute the Accused Officers, mentioning the same in the sanction proceedings is sufficient. The said contention of the 40 KL,J Crl.A. Nos.1021 & 1022 of 2006 learned Special Public Prosecutor cannot be accepted in view of the principle held by the High Court of Andhra Pradesh at Hyderabad in K. Narasimhachary5.

78. In C.B.I. v. Ashok Kumar Aggarwal19, it was held by the Hon'ble Apex Court that in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It was further held that it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further 19 . 2014 Crl.L.J. 930 41 KL,J Crl.A. Nos.1021 & 1022 of 2006 discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. Thus, where there is no reason in the order passed by the Authority/Court, a presumption can be drawn that the said order was passed without application of mind.

79. On perusal of Exs.P14 and 15 - sanction proceedings, would show that relevant material papers were not placed before the Sanctioning Authority. There is no reference about post-trap proceedings, conduct of PW.1, thrust theory, the nature of allegation in Ex.P1, PW.1 facing disciplinary proceedings etc. There is no reason given by Sanctioning Authority in Exs.P14 and 15 - sanction proceedings that she having perused the material, came to a conclusion that there is prima facie evidence to prosecute the Accused Officers. In Exs.P14 and 15, no documents were referred to and no reasons were given by the Sanctioning Authority in support of her conclusion that she has satisfied herself that there was prima facie case against the Accused Officers to prosecute them. As held by the Hon'ble Apex Court in the judgment cited supra, it is the duty cast upon the Sanctioning Authority to go through the entire material, examine the same and come to a conclusion with regard to prima facie evidence to prosecute any Accused Officer. The Sanctioning Authority has to give specific reasons for the same and sanction proceedings should reflect the same. In the present case, the same are lacking. Therefore, Exs.P14 and 15 sanction proceedings are without consideration of any material and without proper 42 KL,J Crl.A. Nos.1021 & 1022 of 2006 reasons. In view of the said principle, the contentions of the learned Special Public Prosecutor that there is no need of mentioning all the documents while issuing the prosecution sanction orders by the Sanctioning Authority with regard to prima facie case and the satisfaction she arrived at to prosecute the Accused Officers, and mentioning the same in the Sanction proceedings is sufficient etc., cannot be accepted. In view of the above discussion and the decisions, presumption can be drawn that the Sanctioning Authority has issued Exs.P14 and 15 - sanction proceedings without application of mind.

80. As discussed supra, the prosecution failed to prove conducting of discreet inquiry by PW.8 - DSP, ACB on receipt of Ex.P1 - complaint though it is specifically mentioned about pendency of disciplinary proceedings against PW.1. Prosecution has also failed to prove the pendency of official favour to get the official favour done by the Accused Officers to PW.1 and that the Accused Officers have abused their official positions.

81. The prosecution has also failed to prove the very demand itself which is sine qua non to record conviction under Section 7 of the Act. Therefore, drawing presumption under Section 20 of the Act does not arise. Exs.P14 and P15 - sanction proceedings were also issued without considering the relevant material and without application of mind. In fact, no reasons were assigned in the said sanction proceedings. The defence of the Accused Officers is consistent.

82. The finding of the trial Court that Exs.P14 and P15 are valid sanction orders is contrary to record and evidence, both oral and 43 KL,J Crl.A. Nos.1021 & 1022 of 2006 documentary. The further finding of the trial Court with regard to conducting of discreet inquiry is also contrary to record.

83. The finding of the trial Court that Accused Officer No.1 has demanded and accepted MO.3 - cash of Rs.2,000/- for himself and on behalf of Accused Officer No.2 towards illegal gratification for the work done and to do favourable acts to PW.1 is contrary to evidence, both oral and documentary, as discussed in detail supra.

84. In the said circumstances and foregoing discussion, the prosecution has miserably failed to prove its case beyond reasonable doubt and, therefore, the finding of the trial Court recording conviction is unsustainable.

85. In the result, the present Criminal Appeals are allowed and the conviction and sentence recorded by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad in Calendar Case No.27 of 2001 vide judgment dated 28.07.2006 against the appellants - Accused Officer Nos.1 and 2 for the offences punishable under Sections 7 and 13 (1)

(d) read with 13 (2) of the Prevention of Corruption Act, 1988 are set aside. The Accused Officers are on bails. Their bail bonds shall stand cancelled. The fine amounts, if any, paid are ordered to be returned to the Accused Officers.

As a sequel, miscellaneous applications, if any, pending in the appeals shall stand closed.

_______________________ JUSTICE K. LAKSHMAN 11th June, 2020 Mgr

Unlock Advanced Research with PRISMAI

Telangana High Court