Andhra HC (Pre-Telangana)
K. Mallikarjuna Rao (Died) And Ors. vs State Of Andhra Pradesh on 6 March, 1996
Equivalent citations: 1996(1)ALD(CRI)641, 1995(1)ALT(CRI)523, 1996(2)ALT(CRI)294, 1996CRILJ4031
Author: K.B. Siddappa
Bench: K.B. Siddappa
JUDGMENT
1. This appeal is filed against the judgment and sentence passed in C.C. No. 31 of 1989 on the file of Special Judge for A.C.B. Cases, Visakhapatnam. The brief facts of the case are as follows :-
A-1 was working as Additional Assistant Engineer in A.P.S.E.B Achuthapuram in Visakhapatnam District, A-2 worked as helper. He died during the trial. The allegation is that A-1 demanded and accepted Rs. 300/- as illegal gratification from PW-1 when PW-1 made application for electricity supply to his 3 H.P. Motor, one month prior to 16-8-1988. PW-1 gave report to A.C.B. Valtair at about 3.50 p.m., on 17-9-1988. The A.C.B. party laid a trap after following the procedure laid down in the Prevention of Corruption Act. After giving the amount of Rs. 300/- to the accused, PW-1 gave signal as indicated. Thereupon, the A.C.B. party went and caught hold of A-1 and A-2. The colour test was conducted and it proved to be positive. After investigation, charge sheet was filed.
2. The lower Court framed charges under S. 7(1) and S. 13(d) r/w S. 13(2) of P.C. Act. The accused denied the charges and claimed to be tried.
3. The prosecution examined PWs-1 to 6 and marked Exs. P-1 to P-13. They also marked M.Os. 1 to 9. The defence examined DW-1 and marked Exs. D-1 and D-2.
4. Considering both oral and documentary evidence, the learned Special Judge found A-1 guilty for the offence punishable under Ss. 7 and 13(1)(d) r/w S. 13(2) of P.C. Act and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 100/-, in default, to suffer R.I. for 15 days. Aggrieved by the said judgment and sentence, the present appeal is filed.
5. Learned counsel for the appellant submitted that no case is made out for the charges levelled against the accused. There is evidence to show that PW-1 had earlier filed petitions against the officers of the Electricity Board and, therefore, he filed the present application. Even according to PW-1, he applied on a stamp paper i.e., Ex.P-1 in February, 1988, but, he stated that he purchased stamps for the application on 17-5-1988. This itself shows the falsity of the prosecution case. Further, admittedly DW-1 was present in the office when the trap was laid. The learned Special Judge did not give any importance to the evidence of DW-1. At the time of trap the statement of the accused officer was recorded. He gave spontaneous statement as to the circumstance under which he happened to receive the amount. The case of the defence is that the villagers are in the habit of paying cash to the officers of the Department towards deposit and also security and service connection charges. The amount given by PW-1 represented those amounts. There is no question of the accused receiving illegal gratification. He further submitted that this fact was spoken by PW-3. Therefore, this fact coupled with the spontaneous statement of the accused certainly show the innocence of the accused. It is submitted that the evidence let in by defence shows the preponderance of probability. In support of his contention, he relied, upon a judgment of Supreme Court in Mansingh v. Delhi Administration, . In this case it was held "it is well settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once it is done, the presumption under S. 4 stands rebutted".
6. I am unable to agree with the submission made by the learned counsel for appellant. PW-1 is the complainant in this case. He stated that he is having 3 acres of wet land and one acre of dry land. He is also having a well. He wanted to install 3 H.P. Motor to that well. He made an application on 27-2-1988 to the Assistant Engineer, Electricity Department, Ankapalli. Subsequently, due to change of jurisdiction to the Assistant Engineer, Achuthapuram, he met the accused who worked as Additional Assistant Engineer and signed on the agreement, Ex.P-1. When he was coming to the accused, the accused was demanding bribe of Rs. 300/- for putting the line for supply of electricity. He expressed his inability on the ground of poverty. He waited up to 15-9-1988. There was no effort on the part of the accused officer to put up the electricity line. He met the officer on 15-9-1988 and requested him to put up the line. The accused officer replied that PW-1 did not pay him the amount, therefore, there is no question of putting up the line. He directed him to pay the amount on 17-9-1988. On 16-9-88 at about 3 p.m., PW-1 went to the office of D.S.P., A.C.B. Visakhapatnam and gave Ex.P-2.
They directed him to come to the office at 12 noon on 17-9-88. Accordingly, he went there. The D.S.P. and other Police Inspectors were there. He handed over Rs. 300/-. The numbers of the currency notes were noted down. The D.S.P explained him about the importance of two chemical substances. PW-1 kept out Rs. 22/- and hand kerchief as directed by the D.S.P. The constable tainted the currency notes of three hundred rupees with phenophthalein powder. The powder was not visible. The constable kept that amount in PW-1's left side shirt pocket. The D.S.P. instructed him not to touch the amount till it is demanded and accepted by the accused officer and when the accused officer accepts the amount, PW-1 is directed to come out and give signal by wiping his face with the hand kerchief. A glass of sodium carbonate solution was prepared and all of them have rinsed their fingers excepting the constable who gave demonstration, and on so doing the solution did not change its colour. When the constable who gave demonstration touched the solution, it turned into pink. The pre-trap proceedings were over by 1.30 p.m. Then he says about the consequence of events that took place at the time of actual trap. He stated that on seeing him the accused officer asked whether he brought Rs. 300/-. PW-1 answered in the positive. He called Kanakaiah, an Assistant Lineman. When that man came near, PW-1 asked to hand over the amount to A-2. Then PW-1 took out and gave the amount to Kanakaiah. Kanakaiah handed over the same to accused officer. The A.O. (accused officer) received the amount with his right hand and kept the amount in his left side of the shirt pocket. PW-1 came out and gave the indicated signal. Thereupon, the A.C.B. people came and conducted test etc. Those tests proved positive. In cross-examination it is inquested that PW-1 had grudge against the Departmental people and, therefore, he filed this police complaint etc. These suggestions were denied by PW-1. His evidence is corroborated by the evidence of PW-2, who acted as mediator. He speaks about PW-2 producing Rs. 300/- and application of powder, nothing the numbers of the currency notes etc. He also speaks about the mode in which the trap was laid. He clearly stated that the colour test conducted on the clothes and hands of the accused officer proved positive. He also speaks about the seizure of Ex.P-5 containing Ex.P-1 attendance register. Ex.P-8 was the post-trap proceedings. The M.Os., were also seized under Ex.P-8. There is no reason why we should not believe the evidence of independent witness like PW-2. PW-3 previously worked as Assistant Divisional Engineer (Operations), Elamanchali. He stated that the Assistant Engineer maintained the register of applications for new connections. The applicant should pay Rs. 5/- at that office. Ex.P-9 is the L.T. application register maintained at Anakapalli. It was transmitted to Achuthapuram after it was constituted. He further stated that the amount payable by the applicant should not be normally by way of cash. He stated that the application of PW-1 was received in the office. The consumer will have to deposit Rs. 25/- for horse power towards service connection charges in the shape of Demand Draft drawn in favour of Divisional Engineer, Anakapalli and Rs. 20/- for horse power as security deposit in the shape of D.D. in favour of Asstt. Accounts Officer, Electricity Revenue Office, Anakapalli. However, in the cross-examination he stated that as they are dealing in the rural places, the consumers are illetarates and they will be handing over the money to their departmental people relating to the security deposits and service connection charges and the departmental people in turn will be remitting to the department. The evidence of I.O., and other witnesses also fully supports the evidence of these witnesses.
7. As already observed, the learned counsel stated that the amount given represent these deposits. I shall deal with this aspect later, but the consistent evidence is that the accused received Rs. 300/- from PW-1. The recoveries are made from the accused. The test proved positive. Then, certainly the presumption under S.4 arises. However, this is a rebuttable presumption. In Jainarayan v. State of U.P., . The Supreme Court held (para 7) :-
"Counsel for the appellant has relied on Ram Prakash Arora v. State of Punjab, . In this case the prosecution evidence consisted only of the witnesses who had participated in the trap. For one reason or the other, it was found that the evidence of four witnesses was not free from blemish. The appellant had denied recovery. This Court said that the evidence of the witnesses who have participated in the trap "should be tested in the same way as that of any other interested witness" and "in a proper case the Court may look for independent corroboration before convicting the accused person". In our view the facts of that case are entirely distinguishable from the facts of the present case. Here the recovery of notes from his pocket is not disputed by the appellant. He offered an explanation therefore but it has not been accepted by the Special Judge and the High Court. On account of the infirmities, already pointed out by us, his explanation was rightly disbelieved".
Now we have to see whether the explanation given is proper. Admittedly, an amount of Rs. 300/- is given to the accused officer. The numbers tallied with the notes recovered from the accused officer. The presumption is that they are received towards bribe, but the accused stated that PW-1 gave the amount towards security deposit and also service charges and that the amount does not constitute any bribe. This is far from truth. According to the evidence of PW-3, an amount of Rs. 25/- is to be deposited in a way of D.D. for each horse power towards service connection charges. An amount of Rs. 20/- is to be deposited for horse power in the shape of D.D. for the purpose of security deposit. PW-1 wanted to install 3 H.P. motor. Therefore, the total amount comes to Rs. 135/-. In such case, it is not known why PW-1 gave Rs. 300/- to the accused officer. Even assuming the evidence of PW-3 is correct that the villagers hand over the security deposits under service connection charges to the employees of the Department, it is not known why Rs. 300/- were given towards those heads. This completely improbabilises the case of the defence. The defence also examined DW-1 who was admittedly there at the time of trap. DW-1 in his evidence stated that A-2 put the amount on the table of the accused officer stating that he would pay on behalf of PW-1. His further evidence is that A-1 did not touch the amount at all etc. His evidence is completely falsified by the test conducted on the hands and clothes of A-1. The colour test proved positive. Therefore the evidence let in on behalf of the defence does not fulfill even the standard of preponderance probability to accept the case of the defence.
8. The Lower Court considered all these aspects and rightly found the accused guilty for the offence punishable under Ss. 7 and 13(1)(d) r/w S. 13(2) of P.C. Act. The sentence of imprisonment is also not excessive.
9. In the result and for the foregoing reasons, the appeal stands dismissed.
10. Appeal dismissed.