Andhra Pradesh High Court - Amravati
Sri B.Apparao ,A2 vs State Rep By Inspector Of Police , on 22 January, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL Nos.857 & 858 OF 2007
Between:
CRIMINAL APPEAL No.857 OF 2007
B. Apparao, S/o.Butchaiah,
Aged 50 years, Senior Assistant,
O/o.CTO, Suryabagh,
Visakhapatnam. .... Appellant/AO-2
Versus
The State, Rep. by Inspector of Police,
ACB, Visakhapatnam. .... Respondent/Respondent.
CRIMINAL APPEAL No.858 OF 2007
1. M. Appalaraju,
S/o.Satyam (Died). .... Appellant/AO-1
2. M. Kanaka Ratnam,
W/o. Late M. Appalaraju,
Aged about 60 years,
Off:House Wife, R/o.H.No.4-5-8,
Relli Street, Narsipatnam,
Anakapalli District, Narsipatnam,
AP-531116.
Versus
The State, Rep. by Inspector of Police,
ACB, Visakhapatnam. .... Respondent/Respondent.
DATE OF COMMON JUDGMENT PRONOUNCED : 22.01.2024
2
AVRB,J
Crl.A. Nos.857 & 858/2007
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the common judgment? Yes/No
2. Whether the copy of common judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
the fair copy of the common judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
3
AVRB,J
Crl.A. Nos.857 & 858/2007
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL Nos.857 & 858 OF 2007
% 22.01.2024
# Between:
+ CRIMINAL APPEAL No.857 OF 2007
B. Apparao, S/o.Butchaiah,
Aged 50 years, Senior Assistant,
O/o.CTO, Suryabagh,
Visakhapatnam. .... Appellant/AO-2
Versus
The State, Rep. by Inspector of Police,
ACB, Visakhapatnam. .... Respondent/Respondent.
! Counsel for the Appellant : Sri A. Hari Prasad Reddy.
(Criminal Appeal No.857/2007) Rep. Sri D. Purnachandra Reddy.
! Counsel for the Appellant : Sri A. Hari Prasad Reddy,
(Criminal Appeal No.858/2007)
^ Counsel for the Respondent : Smt.A.Gayathri Reddy,
Learned Standing Counsel-
Special Public Prosecutor.
> Head Note:
? Cases referred:
1) 2016 (1) ALT (Crl.)(SC) 160 (FB)
2) 2011 (6) SCC 450
3) 2013 (3) ALT (Crl.)(SC) 316 (DB)
4) (2002) 10 SCC 371
5) 2014 (13) SCC 55
6) (2022) SCC OnLine SC 1724
This Court made the following:
4
AVRB,J
Crl.A. Nos.857 & 858/2007
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL Nos.857 AND 858 OF 2007
COMMON JUDGMENT:
Challenge in the Criminal Appeal Nos.857 and 858 of 2007 is to the judgment, dated 21.06.2007, in Calender Case No.29 of 2001, on the file of the Court of III Additional District and Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam (for short, 'the learned Special Judge') by the Accused Officer No.2 (AO-2) and Accused Officer No.1 (AO-1) respectively.
2. The parties to these Criminal Appeals will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The case of the prosecution, in brief, as set out in the charge sheet filed by the by the Inspector of Police, Anti-Corruption Bureau (ACB), Visakhapatnam pertaining to Crime No.7/RC- WLR/2000 of ACB, Visakhapatnam for the offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of the Prevention of the Corruption Act, 1988 (for short, 'the PC Act') and Sections 120-B and 201 of the Indian Penal Code, 1860 (for short, 'the IPC'), is that the Accused Officer No.1 (AO-1) by name M. Appalaraju worked as Deputy Commercial Tax Officer (DCTO), Suryabagh, 5 AVRB,J Crl.A. Nos.857 & 858/2007 Visakhapatnam from 16.07.1998 till he was placed under suspension on 26.07.2000 as such he is a 'Public Servant' within the meaning of Section 2(c) of the PC Act. Accused Officer No.2 by name B. Apparao worked as Senior Assistant in the office of Commercial Tax Officer, Suryabagh, Visakhapatnam from 14.07.1999 till he was placed under suspension on 26.07.2000 as such he is a 'Public Servant' within the meaning of Section 2(c) of the PC Act.
(i) LW.1 - Thyaveedu Baburaj is the Manager of Queens Bakery and Sweets Shop situated in Shop No.21, RTC Complex, Visakhapatnam and he has been doing business on behalf of LW.2
- M. Tarakeswari, who issued authorization, dated 18.09.1996, in his favour appointing him as Manager of the said Shop to look after the business affairs on her behalf as she could not maintain the business personally. Thus, LW.1 has been looking after the business and other matters such as filing of commercial tax returns etc. The stocks in the shop are being purchased from authorized registered dealers on genuine bills and being sold to public and nothing is being manufactured in his shop. There is no need to pay any Sales Tax to the Commercial Tax Department in this regard. On 30.05.2000, he filed returns in respect of his shop for the year 1999-2000 before AO-1, but the assessment order was 6 AVRB,J Crl.A. Nos.857 & 858/2007 not given to him. On 09.06.2000, AO-1 demanded him to pay bribe of Rs.2,000/-, when he approached AO-1 in his office to enquire about his assessment. AO-1 instructed him to pay the said bribe amount on 12.06.2000 to make the assessment and return assessment order. When LW.1 expressed his inability to pay that much of amount, since his business is a little one, AO-1 threatened him that unless the demanded bribe amount is paid, he would object the assessment in respect of the shop and cause hindrance to his business. Hence, LW.1 reluctantly agreed to pay the bribe of Rs.2,000/- to AO-1 and subsequently he lodged a report with the ACB officials on 11.06.2000. LW.14 - D.V.S. Bhaskara Raju, Deputy Superintendent of Police, ACB, Visakhapatnam registered the report of LW.1 as a case in Crime No.7/RC-WLR/2000, as above, on 12.06.2000 and investigated into.
(ii) On 12.06.2000 at 04:45 p.m. AO-1 was trapped in his office chambers, situated in the office of Commercial Tax Officer when he demanded and accepted the bribe of Rs.1,500/- from LW.1 from out of the demanded bribe amount of Rs.2,000/-. AO-1 also asked LW.1 to pay the remaining amount of Rs.500/- to AO-2 to receive the assessment order from AO-2. As per the instructions of AO-1, LW.1 approached AO-2 in the main hall of the office of 7 AVRB,J Crl.A. Nos.857 & 858/2007 LW.5 - Commercial Tax Officer and enquired about his assessment order. AO-2 demanded him to pay the bribe of Rs.500/-. When the complainant paid the amount of Rs.500/- to AO-2, he received the same, counted with both hands and kept it in a small zip bag and thereafter he delivered the assessment order acknowledgment i.e., Form-AA9 (Part-B) acknowledgment-
cum-demand notice to LW.1 after obtaining acknowledgment with ante date as 16.05.2000 instead of 12.06.2000, though LW.1 expressed his pretest for putting his signature with ante date. AO-2 on seeing the DSP, ACB, Visakhapatnam (LW.14) and other ACB officials in the chambers of AO-1, passed on the zip bag containing tainted cash of Rs.500/- to LW.3 - Kotilingala Trinadh
- a Tea Stall owner at VUDA Complex, who in turn passed the zip bag to LW.4 - Kotilingala Padma, his wife, to hide the zip bag. The chemical test conducted to both hand fingers of AO-1 and inner lining of his right side pant pocket was proved positive. The tainted amount of Rs.1,500/- was recovered from AO-1 at his instance. The chemical test conducted to both hand fingers of AO-2 and zip bag pocket of AO-2 was also proved positive. The bribe amount of Rs.500/- was recovered at the instance of AO-2 from his zip bag which was passed on to LW.3 and from him to LW.4. The serial numbers of the tainted amount which were 8 AVRB,J Crl.A. Nos.857 & 858/2007 mentioned in the pre-trap proceedings were tallied with the tainted amount that was recovered from AO-1 and AO-2. LW.14 seized the tainted currency of Rs.1,500/- and Rs.500/- from AO-1 and AO-2 respectively. The explanation tendered by AO-1 is far from truth. AO-2 admitted that he received Rs.500/- from LW.1 and delivered the acknowledgment to the complainant during the post-trap.
(iii) The Government of Andhra Pradesh being the competent authority accorded sanction to prosecute the AO-1 and AO-2 in a competent Court of law separately vide G.O.Ms.Nos.541 and 542, dated 04.08.2001 of Revenue (Vigilance-1) Department. So, both the Accused Officers are liable to be punished for the offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of the PC Act and further AO-2 is liable to be punished for the offence under Section 201 IPC.
4. The learned Special Judge took cognizance of the case under the above provisions of law. After appearance of the Accused Officers, by complying the necessary formalities under Section 207 Cr.P.C, the learned Special Judge framed charges under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and AO-2 and further a charge under Section 201 of IPC against AO-2, 9 AVRB,J Crl.A. Nos.857 & 858/2007 read over and explained the same to them in Telugu for which they pleaded not guilty and claimed to be tried.
5. In order to establish the guilt against the Accused Officers, the prosecution before the trial Court examined PWs.1 to PW.6 and got marked Exs.P-1 to P-21, P-2(a) and MOs.1 to MO.14.
6. After closure of the evidence of the prosecution, both the Accused Officers were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the incriminating circumstances and reported defence evidence. In furtherance of their defence, the Accused Officers got examined DW.1 - B. Nagendra, who is a Junior Assistant in the office of Commercial Tax Officer, Chinna Waltair, Visakhapatnam.
7. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, made a finding that as the prosecution failed to establish the allegations of demand as against AO-1 and AO-2, acquitted both of them under Section 248(1) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C') for the charge under Section 7 of the PC Act. The learned Special Judge, however, found AO-1 and AO-2 guilty of 10 AVRB,J Crl.A. Nos.857 & 858/2007 the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act and further found AO-2 guilty of the charge under Section 201 IPC and convicted them under Section 248(2) Cr.P.C and, after questioning them about the quantum of sentence, sentenced them to undergo Rigorous Imprisonment for one year each and to pay a fine of Rs.1,000/- each in default to suffer Simple Imprisonment for two months each for the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Further, the learned Special Judge sentenced AO-2 to undergo Rigorous Imprisonment for six months and to pay a fine of Rs.500/- in default to suffer Simple Imprisonment for one month for the offence under Section 201 IPC and that the punishment imposed against AO-2 shall run concurrently.
8. Felt aggrieved of the aforesaid conviction and sentence imposed, the unsuccessful Accused Officer No.1 filed Criminal Appeal No.858 of 2007 and Accused Officer No.2 filed Criminal Appeal No.857 of 2007.
9. As against the finding of the learned Special Judge that the prosecution did not prove the charge under Section 7 of the PC Act against AO-1 and AO-2, the prosecution did not file any Appeal. So, the scope of these Appeals is confined to decide the validity of 11 AVRB,J Crl.A. Nos.857 & 858/2007 Section 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and AO-2 and further Section 201 IPC against AO-2 for causing disappearance of evidence relating to Section 13(1)(d) R/w. Section 13(2) of the PC Act.
10. Now, in deciding these Appeals, the points that arise for consideration are as follows:
1) Whether the prosecution before the trial Court proved that AO-1 and AO-2 are public servants within the meaning of Section 2(c) of the PC Act and whether the prosecution obtained a valid sanction in terms of Section 19 of the PC Act to prosecute them for the charges framed?
2) Whether the prosecution before the trial Court proved that AO-1 and AO-2 by corrupt or illegal means or by abusing their official position as public servants obtained a sum of Rs.1,500/- and Rs.500/- from PW.1 towards bribe in the manner as alleged by the prosecution?
3) Whether AO-2 caused disappearance of evidence relating to receiving a sum of Rs.500/- by him from PW.1 so as to hide the commission of offence? 12
AVRB,J Crl.A. Nos.857 & 858/2007
4) Whether the judgment, dated 21.06.2007, in Calender Case No.29 of 2001, is sustainable under law and facts and whether there are any grounds to interfere with the same?
11. POINT No.1: There is no dispute that both the Accused Officers were working as Public Servants within the meaning of Section 2(c) of the PC Act and they were drawing salary from the Government. So, absolutely, there is no dispute that both the Accused Officers were working as Public Servants within the meaning of Section 2(c) of the PC Act. With regard to the sanction obtained by the prosecution, the prosecution exhibited sanction orders under Exs.P-20 and P-21. It is to be noted that, as evident from the deposition of PW.6 - Trap Laying Officer, the learned defence counsel before the learned Special Judge gave his consent to exhibit Exs.P-20 and P-21 without examination of the person or who is acquainted with the signature of the sanctioning authority who issued Exs.P-20 and P-21. So, as evident from Exs.P-20 and P-21, absolutely, there is application of mind by the sanctioning authority with reference to the allegations against AO-1 and AO-2. So, a perusal of Exs.P-20 and P-21, undoubtedly, shows that the sanctioning authority after due application of mind into the 13 AVRB,J Crl.A. Nos.857 & 858/2007 allegations of prosecution decided to accord sanction. Accused Officers had no objection for marking of Exs.P-20 and P-21 and further they did not dispute the contents of Exs.P-20 and P-21 before the trial Court. Even in the grounds of Appeal, they did not challenge the findings of the learned Special Judge that the prosecution obtained a valid sanction under Section 19 of the PC Act. Hence, this point is answered accordingly in favour of the prosecution.
12. POINT Nos.2 to 4: PW.1 is no other than the de-facto complainant who lodged Ex.P-3 report with the DSP, ACB, Visakhapatnam. PW.2 is the mediator for the pre-trap and post- trap proceedings, who supported the case of prosecution. PW.3 and PW.4 did not support the case of prosecution. PW.5 was examined by the prosecution to speak about the procedural aspects in respect of filing returns in the Commercial Tax Department. PW.6 is the Trap Laying Officer.
13. Before going to appreciate the evidence with reference to the contentions advanced, this Court would like to place on record that insofar as Criminal Appeal No.858 of 2007 filed by AO-1 is concerned, he died during pendency of the Criminal Appeal. The legal representative of AO-1 is impleaded to prosecute the Appeal 14 AVRB,J Crl.A. Nos.857 & 858/2007 vide orders of this Court in I.A. No.2 of 2022, dated 19.06.2023. So, insofar as Criminal Appeal No.858 of 2007 is concerned, Appellant/AO-1 is no more and his wife is prosecuting the Appeal.
14. Sri A. Hariprasad Reddy, learned counsel for the appellant/AO-1 in Criminal Appeal No.858 of 2007, would contend that the findings of the learned Special Judge are that the prosecution did not prove the fact that AO-1 demanded PW.1 to pay the bribe of Rs.2,000/- on 09.06.2000 and in pursuance of such a demand, he further made a demand on the date of trap and accepted the tainted amount. Therefore, the finding of the learned Special Judge was that the prosecution did not prove the allegation of demand of bribe as against AO-1 and AO-2. When that is the situation, in the absence of a demand, which is sine- qua-non, for the charges under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act, the conviction of the appellants under Section 13(1)(d) R/w. Section 13(2) of the PC Act is wholly un- sustainable. The defence of AO-1 before the trial Court was that as he insisted the presence of the original assessee by name M. Tarakeswari for verification of certain facts, PW.1 bore grudge against him and falsely implicated him. He would contend that both the AO-1 and AO-2 set forth a proper defence before the 15 AVRB,J Crl.A. Nos.857 & 858/2007 learned Special Judge. During the course of trial, AO.1 put up the thrusting theory. According to his defence though AO-1 declined to receive any amount but forcibly the de-facto complainant kept the amount in the trouser pocket of AO.1. This defence of AO-1 was not found favour by the learned Special Judge. The law is well settled that mere recovery of the tainted amount would not absolve the prosecution from proving the allegations of demand and acceptance of bribe. Insofar as the contention that PW.1 had submitted the returns on 30.05.2000 is concerned, it was falsified by his own documents. When PW.1 submitted the returns on 16.05.2000, it was duly assessed and the assessment order was passed on 16.05.2000 itself. PW.1 signed the document acknowledging the receipt of assessment order on 16.05.2000 but deliberately he carried the order during the post-trap and created a version as if AO-2 demanded him to sign the order with ante date on 16.05.2000 instead of 12.06.2000. Such version of PW.1 was highly suspicious. Absolutely, there was no pendency of any work relating to PW.1 either before AO-1 or before AO-2, according to the evidence available on record. The very conviction of the Accused Officers under Section 13(1)(d) R/w. Section 13(2) of the PC Act, when there were findings that the prosecution did not prove the demand, is un-sustainable under law and facts. PW.3 16 AVRB,J Crl.A. Nos.857 & 858/2007 and PW.4 did not support the case of prosecution with regard to AO-2. Learned counsel for the appellants in support of his contentions would rely upon the decisions of the Hon'ble Apex Court in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another1, State of Kerala and others v. C.P. Rao2, Sujit Biswas v. State of Assam3, Punjabrao v. State of Maharashtra4 and B. Jayaraj v. State of A.P5. Learned counsel would submit that mere recovery of the tainted amount from AO-1 is not sufficient to establish the guilt against him and further the learned Special Judge erroneously applied Section 20 of the PC Act to Section 13(1)(d) R/w. Section 13(2) of the PC Act and it is also wholly un- sustainable. With the above submissions, he would contend that the Appeal is liable to be allowed.
15. Sri A. Hariprasad Reddy, learned counsel, representing Sri D. Purnachandra Reddy, learned counsel for the Appellant/AO-2 in Criminal Appeal No.857 of 2007, would contend that the tainted amount was not recovered from the possession of AO-2. AO-2 set forth a defence theory that when the complainant tried to give an 1 2016 (1) ALT (Crl.)(SC) 160 (FB) 2 2011 (6) SCC 450 3 2013 (3) ALT (Crl.)(SC) 316 (DB) 4 (2002) 10 SCC 371 5 2014 (13) SCC 55 17 AVRB,J Crl.A. Nos.857 & 858/2007 amount of Rs.500/- to him, he resisted the act of PW.1 and PW.1 went away and he would submit that there was a possibility for AO-2 to come into contact with the phenolphthalein powder when AO-2 warded off the tainted amount and it was not recovered from his possession. In furtherance of the defence, DW.1 was examined, who spoke about the conversation between AO-2 and PW.1. The learned Special Judge on erroneous appreciation of the evidence on record disbelieved the defence theory. Learned counsel would submit that AO-2 is also entitled for an acquittal.
16. Smt. A. Gayathri Reddy, learned Standing Counsel-cum- Special Public Prosecutor for ACB, appearing for the Respondent- State, would contend that though there is no Appeal filed by the prosecution with regard to acquittal of the Accused Officers of the charge under Section 7 of the PC Act, but when this Court is dealing with the Appeals with regard to Section 13(1)(d) R/w. Section 13(2) of the PC Act, it has every power to decide as to whether the evidence on record established the demand which is a sine-qua-non for the offences under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Though the learned Special Judge made findings that the prosecution did not prove the allegations of demand but convicted both the Accused Officers under Section 18 AVRB,J Crl.A. Nos.857 & 858/2007 13(1)(d) R/w. Section 13(2) of the PC Act and when the legality of such a judgment is impugned in these Appeals, this Court can re- appraise the evidence on record with regard to the allegations of demand at least in respect of the offences under Section 13(1)(d) R/w. Section 13(2) of the PC Act is concerned. The tainted amount of Rs.1,500/- was recovered from the possession of AO-1 and tainted amount of Rs.500/- was recovered from the possession of PW.3 and PW.4, who did not support the case of prosecution. The defence theory set forth by AO-1 and AO-2 is not sustainable. PW.1 had no necessity to implicate AO-1 and AO-2 falsely. There was no previous animosity existing between PW.1 and AO-1 at one hand and AO-1 and AO-2 at the other hand. Though the learned Special Judge disbelieved the prosecution theory under Section 7 of the PC Act but was inclined to give conviction under Section 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and AO-2. Though the State did not prefer any Appeal under Section 7 of the PC Act but this Court is not debarred from deciding as to whether the evidence on record would prove the demand so as to constitute the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Even without the aid of Section 20 of the PC Act, which cannot be made applicable to Section 13(1)(d) R/w. Section 13(2) of the PC Act, the evidence on record would prove the charge 19 AVRB,J Crl.A. Nos.857 & 858/2007 under Section 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and AO-2 and further a charge under Section 201 IPC against AO-2. With the above submissions, learned Standing Counsel-cum-Special Public Prosecutor would seek to dismiss both the Appeals.
17. As seen from the report lodged by PW.1 under the cover of Ex.P-3, the allegations were that he was looking after the affairs of Queens Bakery and Sweets shop in RTC Complex, Dwarakanagar, Visakhapatnam having got authorization from his aunt M. Tarakeswari. When he submitted the returns of his shop on 30.05.2000, he did not receive the assessment order and when he met AO-1 and asked him to issue the assessment order, he demanded the bribe of Rs.2,000/- and directed him to pay the bribe amount on 12.06.2000. This is the sum and substance of the allegations in Ex.P-3 report.
18. Now, coming to the evidence of PW.1, his evidence in substance is that he is looking after the Queens Bakery and Sweets shop in RTC Complex, Visakhapatnam of LW.2. Ex.P-1 is the authorization, dated 18.09.1996, given to him to look after the business. On 30.05.2000, he submitted the returns of that business in the office of DCTO for the assessment year 1999-2000. 20
AVRB,J Crl.A. Nos.857 & 858/2007 Ex.P-2 is the made up file in relation to his business. The DCTO at that time was AO-1. On 09.06.2000 in the evening he met AO-1 in his office and enquired him about his assessment order in relation to Queens Bakery and Sweets shop following the returns submitted by him. He replied that a sum of Rs.2,000/- was to be paid towards bribe. He expressed his inability to do so. AO-1 threatened him that he will inspect his shop and would not issue the assessment. He asked him to bring the bribe amount on 12.06.2000. As he was not interested to pay the bribe, he approached the DSP, ACB and lodged a report under Ex.P-3. DSP, ACB asked him to come to his office on 12.06.2000 along with the proposed bribe amount of Rs.2,000/-. On 12.06.2000 at 01:30 p.m. he went to the office of DSP, ACB where he was introduced with the mediators. Mediators confirmed from him about the contents of the report lodged by him. He spoke of the pre-trap events to the effect that he produced Rs.2,000/- before DSP, ACB, which contains one five hundred rupee note and fifteen one hundred rupee notes and mediators noted down the serial numbers in the pre-trap and he revealed that he was having Rs.1,096/- personal cash, one bunch of keys and one mobile phone. The DSP, ACB asked him to keep his personal cash and keys in his left side pant pocket and mobile in his right side pant 21 AVRB,J Crl.A. Nos.857 & 858/2007 pocket. DSP, ACB instructed Head Constable 633 to keep wad of tainted amount of Rs.2,000/- in his left side shirt pocket, which was applied with phenolphthalein powder. The DSP, ACB further instructed him to pay the bribe amount only on further demand by AO-1.
19. His evidence in relation to the post-trap is that when he proceeded to the IV Floor of Udyoga Bhavan to the office of DCTO at Suryabagh and met AO-1 with a request to issue assessment order, AO-1 asked him whether the demanded bribe amount of Rs.2,000/- was brought or not. He replied in positive. Then, he asked to pay Rs.1,500/- to him out of Rs.2,000/- and to pay Rs.500/- to his clerk - B. Apparao (AO-2) and to collect the assessment order from AO-2 on the same day. Accordingly, he gave Rs.1,500/- to AO-1 and retained Rs.500/- in the denomination of five one hundred rupee notes. AO-1 received Rs.1,500/- with his right hand and counted the same and kept it in his right side pant pocket. When he went to the Hall, where AO-2 was seated, and asked AO-2 to issue the assessment order, he asked him whether the bribe amount was paid or not. He replied in positive. Then AO-2 questioned him as to whether AO-1 directed him to pay any amount to him and accordingly, he paid 22 AVRB,J Crl.A. Nos.857 & 858/2007 Rs.500/- to AO-2, who received the amount of Rs.500/- and put the same in his zip bag of blue colour. Thereafter, AO-2 issued the assessment order to him. Ex.P-4 is the assessment order issued to him by AO-2 at that time. As per the instructions of AO-2, he signed on the copy of the order as token of receipt i.e., Ex.P-4. AO-2 asked him to affix his signature and date as 16.05.2000 though it was issued to him on 12.06.2000. Then he told him that he submitted the returns way back on 30.05.2000 for which AO-2 replied that, DCTO (AO-1) will make some adjustments and he was asked to affix the date as 16.05.2000. In fact, Ex.P-4 was issued to him on 12.06.2000. Ex.P-2(a) bears his signature on the copy of assessment order in Ex.P-2 file. Then, he came out and gave signal to the ACB officials. The ACB officials rushed there and asked him to wait outside and, after half an hour, he was asked to enter inside the office. He narrated the events to the ACB officials.
20. The prosecution examined PW.2, a mediator, who supported the case of prosecution with regard to the pre-trap and post-trap events. His evidence insofar as the post-trap concerned is to the effect that on 12.06.2000 at 04:45 p.m. they received a signal through SI Baburao. Immediately, they rushed into the office of AO-1 where PW.1 was present in the corridor. He was instructed 23 AVRB,J Crl.A. Nos.857 & 858/2007 to wait there for some time. They entered into the chambers of AO-1. The DSP, ACB disclosed his identity particulars to AO-1 and also introduced other mediators to AO-1. On hearing the identity particulars of the DSP, ACB and other mediators, AO-1 took out his hand from his right side pant pocket and kept his right hand to his back. On being asked by the DSP, ACB, AO-1 revealed his identity particulars and showed the currency notes in his right hand and on his instructions, AO-1 handed over the currency notes to M. Prasad - (LW.12), a mediator. When the DSP, ACB got conducted chemical test to both hand fingers of AO-1, it yielded positive result. The denomination of the currency notes were tallied with the pre-trap proceedings. The narration of AO-1 was incorporated in the post-trap proceedings. The version of PW.1 was also incorporated in post-trap proceedings. The version of AO-1 was confronted with PW.1. On the basis of the statement made by PW.1, the DSP, ACB along with other mediators went to the room of AO-2 and on seeing the ACB officials, AO-2 became speechless and he started rubbing his hands to the handles of the chair. The DSP, ACB asked AO-2 to disclose his identity particulars and accordingly he disclosed his identity particulars. When the DSP, ACB got conducted chemical test to both hand fingers of AO-2, it yielded positive result. AO-2 stated that he kept 24 AVRB,J Crl.A. Nos.857 & 858/2007 the money in a zip bag and it was kept with a tea bunk owner - K. Trinadh (LW.3) on hearing about the AO-1 being trapped by the ACB officials. AO-2 led the raid party to LW.3 and pointed out LW.3 - tea stall owner as receiver of the zip bag. Statement of LW.3 was accordingly recorded. LW.3 disclosed that he handed over the zip bag to his wife - K. Padma (LW.4) who was waiting in the ground floor. Then, they went to LW.4 and brought her back. She handed over the zip bag to AO-2, who in turn opened the zip bag and took the tainted amount of Rs.500/- and gave it to the mediator. The serial numbers therein were tallied with the numbers mentioned in the pre-trap proceedings. The chemical test conducted to the inner linings of the zip bag yielded positive result. The zip bag was also seized by the DSP, ACB, which was marked as MO.10. The DSP, ACB conducted chemical test to the right side pant pocket of AO-1 which yielded positive result. The DSP, ACB examined the version of PW.3 and his wife and it was incorporated in the post-trap proceedings. He further spoke of the seizure of records from the possession of AO-1 and AO-2.
21. It is a fact that PW.3 - Tea bunk owner and PW.4 - wife of PW.3 did not support the case of prosecution. The prosecution got declared them as hostile. However, during their cross-examination 25 AVRB,J Crl.A. Nos.857 & 858/2007 their statements under Exs.P-17 and P-18 were marked by way of confrontation.
22. Prosecution examined PW.5, the Assistant Commercial Tax Officer, who testified that AO-1 - Deputy Commercial Tax Officer and AO-2 - Senior Assistant worked in the DCTO Circle, Suryabagh Branch, Visakhapatnam. DCTO is empowered to assess business turnover from rupees two lakhs to ten lakhs. Sales Tax is exempted for secondary sales with respect to Bakery and confectionaries. He had the jurisdiction between the Jail Road and Poorna Market. RTC Complex comes within the jurisdiction of DCTO, Suryabagh. The assessment under Ex.P-2 has to be filed on or before 30th April and the assessment order has to be issued within a period of one month from the date of filing of assessment by shop keeper. Ex.P-2(a) is dated 16.05.2000. AO did not bring to his notice about the assessment made by PW.1. On 12.06.2000, he was in the office of DCTO, Suryabagh, Visakhapatnam. He was examined by the DSP, ACB, and his statement was recorded in the post-trap proceedings.
23. PW.6 is the Trap Laying Officer, who spoke of the registration of FIR on the basis of Ex.P-3 report and he spoke of 26 AVRB,J Crl.A. Nos.857 & 858/2007 the pre-trap and post-trap events. His evidence is similar with that of the evidence of PW.2 - the mediator.
24. The learned defence counsel examined DW.1 before the trial court and he was mainly examined to speak of the conversation between AO-2 and PW.1. His evidence in substance is that in the month of June, 2000, he was in his office at the time of ACB raid against the Accused Officers. He knows that PW.1 was running Crown (sic) Bakery in RTC Complex, Visakhapatnam. On the date of raid at about 04:00 p.m. he went to the seat of AO-2 to collect white papers and found PW.1 near the table of AO-2. While he was collecting white papers, he heard that PW.1 was asking AO-2 to settle his case with the DCTO and also offering him some amount, for which AO-2 replied to PW.1 that he can settle his matter with DCTO directly. He went to computer room after collecting white papers and at the same time PW.1 left the place and went towards Chambers of AO-1. Half an hour later, while he was in the computer room, ACB officials called him and other staff members and he was orally examined by the ACB officials. He can identify the carriage bag of AO-2 as he used to get carriage in that bag. MO.10 is the zip bag shown to the witness. He stated that MO.10 27 AVRB,J Crl.A. Nos.857 & 858/2007 was not the carriage bag of AO-2 as he never saw MO.10 bag or similar bag with AO.2.
25. Admittedly, it is a case where the prosecution presented two occasions where AO-1 was alleged to have demanded PW.1 to pay the bribe of Rs.2,000/-. First demand was on 09.06.2000 with a direction to PW.1 to bring the bribe amount on 12.06.2000. The second demand was on 12.06.2000 during the post-trap to the effect that AO-1 demanded PW.1 to pay Rs.1,500/- out of Rs.2,000/- to AO-1 and the rest of Rs.500/- to AO-2 to get the assessment order. The allegation of demand against AO-2 was on 12.06.2000 during the post trap where he demanded PW.1 to pay bribe of Rs.500/- and upon payment of the same, he issued the assessment order. It is a fact that PW.1 spoke of both the demands i.e., 09.06.2000 and 12.06.2000 against AO-1 and further demand on 12.06.2000 against AO-2. The findings of the learned Special Judge were that there was no corroboration to the evidence of PW.1 with regard to the demand dated 09.06.2000 and further the demand dated 12.06.2000 and ultimately the findings of the learned Special Judge were that the prosecution failed to prove the allegations of demand of bribe against AO-1 and AO-2. The peculiar features of the judgment further were that the 28 AVRB,J Crl.A. Nos.857 & 858/2007 learned Special Judge convicted both the Accused Officers for the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act.
26. Proving of demand is a sine-qua-non to establish the guilt under Section 13(1)(d) R/w. Section 13(2) of the PC Act. As rightly pointed out by the learned Standing Counsel for the Respondent- State, it is absolutely within the province of this Court to decide in both the Appeals which arose against the conviction and sentence under Section 13(1)(d) R/w. Section 13(2) of the PC Act as to whether the evidence on record would establish the demand. Though this Court is handicapped now to deal with the allegations under Section 7 of the PC Act for want of any Appeal by the prosecution/State but as the legality of the conviction and sentence is under challenge in the present Appeals, this Court can as well re-appraise the evidence on record to decide whether the evidence on record established the demand, which is a sine-qua- non for the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act.
27. Turning to the decision of Hon'ble Apex Court in P. Satyanarayana Murthy (1st supra), the Hon'ble Apex Court held that mere possession and recovery of the currency notes from the accused, without proof of demand, would not establish the 29 AVRB,J Crl.A. Nos.857 & 858/2007 offences under Sections 7 and 13 of the PC Act. Apart from this, in view of the decision of Hon'ble Apex Court in P. Satyanarayana Murthy (1st supra), a presumption under Section 20 of the PC Act cannot be drawn insofar as the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act is concerned. It was also laid down in the decision of the Hon'ble Apex Court in B. Jayaraj (5th supra) that applicability of Section 20 of the PC Act can only prove the offence under Section 7 of the PC Act but not under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Needless to point out here that the learned Special Judge took aid of Section 20 of the PC Act so as to convict the Accused Officers under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Apart from this the Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)6, categorically held that Section 20 of the PC Act does not apply to Section 13(1)(d)(i)(ii) of the PC Act. According to the decision of the Hon'ble Apex Court in Neeraj Dutta (6th supra), demand is a sine- qua-non to establish the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act.
28. Now, as the legality of the judgment under Section 13(1)(d) R/w. Section 13(2) of the PC Act is under challenge, I would like to 6 (2022) SCC OnLine SC 1724 30 AVRB,J Crl.A. Nos.857 & 858/2007 re-appreciate the evidence on record as to whether the evidence on record would prove the allegations of demand so as to constitute the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act. With regard to pendency of official favour, the case of the prosecution is that PW.1 submitted the returns on 30.05.2000 but AO-1 did not issue the assessment order and he demanded the bribe on 09.06.2000 as well as on 12.06.2000 and in pursuance of such demands, PW.1 paid Rs.1,500/- to AO-1 and in pursuance of the demand of AO-1, he approached AO-2 where he demanded bribe of Rs.500/- and accordingly he paid Rs.500/- to AO-2. It is to be noted that corroboration to the testimony of PW.1 can be in any form. It is a case where the prosecution has come up with a case that tainted amount of Rs.1,500/- was recovered from AO-1 physically and both the hand fingers of AO-1 and inner linings of trouser pocket of AO-1 also yielded positive result. There is no dispute that the tainted amount of Rs.1,500/- was recovered from the possession of AO-1 and his both hand fingers yielded positive result and further the inner linings of the right trouser pocket of AO-1 also yielded positive result. These circumstances corroborate the evidence of PW.1, in my considered view.
31
AVRB,J Crl.A. Nos.857 & 858/2007
29. Coming to the thrusting theory set forth by AO-1 during the course of cross-examination, PW.1 denied that when he put some amount on the table of AO-1, AO-1 asked him that he need not pay any amount and asked him to go to AO-2 to pick up the assessment order and after some time PW.1 met the AO-1 and tried to handover the amount and when AO-1 warded off the attempt of PW.1, he forcibly kept the tainted amount of Rs.1,500/- into the trouser pocket of AO-1. PW.1 denied such a defence theory. The defence of AO-2 before PW.1 was that he tried to give the amount of Rs.500/- and he warded off his attempt and then PW.1 went away. So, the defence of AO-2 was that when he warded of the attempt of PW.1 to receive the amount of Rs.500/-, his hands might have touched the phenolphthalein powder. It is to be noted that PW.1 testified the demand dated 12.06.2000 against AO-1 and AO-2 during the course of evidence. It is to be noted that according to the evidence of PW.5, an assessee under the Commercial Tax Department was supposed to file the returns on or before 30th April. The evidence of PW.1 was that he submitted the returns on 30.05.2000 but he was handed over the assessment order on 12.06.2000 with ante date. The defence of Accused Officers was that deliberately PW.1 carried the assessment order which he received on 16.05.2000 during the 32 AVRB,J Crl.A. Nos.857 & 858/2007 post-trap without knowledge of the ACB officials. It is very difficult to accept such a contention. The evidence of PW.5 regarding the procedural aspects that the assessment returns were to be submitted on or before 30th April was not challenged by the Accused Officers. When that is the situation, it is not understandable as to how AO-1 could receive the assessment documents on 16.05.2000. It is quite improbable to assume that when PW.1 made the assessment application on 16.05.2000, on the same day both the Accused Officers processed the same. So, it goes to show that out of innocence or otherwise, PW.1 could not submit the returns on or before 30.04.2000 but he could submit the same at the end of May, 2000 but the fact remained is that the signatures of PW.1 were obtained with antedate as 16.05.2000.
30. The evidence of PW.1 disclosed that he voluntarily intimated to the DSP, ACB at the time of post-trap about the personal cash and also mobile phone and the DSP, ACB took precautions to say that his personal cash was to be kept in another pocket. Absolutely, PW.1 had no motive at all to file a false case against the Accused Officers. There was no animosity existing between PW.1 and AO-1 at one hand and AO-1 and AO-2 at another hand. When PW.1 had a valid authorization from LW.2 - M. Tarakeswari 33 AVRB,J Crl.A. Nos.857 & 858/2007 to look after the business affairs of Queens Bakery and Sweets, AO-1 had no business to insist for the presence of original assessee. Absolutely, there was no necessity for AO-1 to insist for the presence of original assessee. If the presence of original assessee was required, there was no possibility for AO-1 to cause issuance of Ex.P-2(a) - assessment order. So, his defence that when he insisted for the presence of original assessee, he was falsely implicated cannot stand to any reason. Absolutely, there were no doubtful circumstances in the evidence of PW.1 to disbelieve his testimony. The prosecution with consistent evidence proved the pendency of official favour.
31. The oral evidence of PW.1 with regard to the allegations of demand had corroboration from other aspects i.e., recovery of the tainted amount from AO-1 and further recovery of the tainted amount from PW.4 at the instance of AO-2. Though PW.3 and PW.4 did not support the case of prosecution, there is evidence of PW.2, independent mediator, who acted as a mediator for the first time in ACB trap case that AO-2 during the post-trap proceedings disclosed that he handed over tainted amount which was kept in the zip bag to PW.3 and PW.3 disclosed that he handed over the zip bag to PW.4. PW.2 - the mediator, who acted as a mediator for 34 AVRB,J Crl.A. Nos.857 & 858/2007 the first time in ACB trap case, had no reason to depose false. The evidence of PW.2 and PW.6 - Trap Laying Officer is quite consistent throughout. So, both hand fingers of AO-2 yielded positive result when they were subjected to chemical test. In my considered view, the testimony of PW.1 with regard to his allegations of demand of bribe against AO-1 and AO-2 had support from various circumstances referred to above.
32. The findings of the learned Special Judge that the prosecution did not prove the allegations of demand are not at all sustainable on facts. It is to be noted that, according to the settled legal position, proof of demand is a sine-qua-non even to prove the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act. As the very conviction and sentence is impugned in both these Appeals, this Court has every power to re-appraise the evidence to decide as to whether the evidence on record would establish the demand which is a sine-qua-non to prove the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Hence, this Court would like to differ with the findings of the learned Special Judge that the prosecution did not prove the allegations of demand. Having given such a finding, the learned Special Judge bent upon to convict the Accused Officers under Section 13(1)(d)R/w. Section 13(2) of the 35 AVRB,J Crl.A. Nos.857 & 858/2007 PC Act. As the very conviction and sentence is under challenge, now this Court on re-appraisal of the entire evidence on record with regard to Section 13(1)(d) R/w. Section 13(2) of the PC Act is of the considered view that the evidence of PW.1 proved the allegations demand against AO-1 and AO-2 on the date of trap i.e., 12.06.2000.
33. Turning to the decision of the Hon'ble Apex Court in Sujit Biswas (3rd supra), cited by learned defence counsel, this court admits that a conviction cannot be based on mere surmises and conjectures or suspicion. As the prosecution in this case established the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act and also under Section 201 IPC, with consistent evidence, the decision of the Hon'ble Apex Court in Sujit Biswas (3rd supra), is of no use to the contention of the defence. Turning to the decision of the Hon'ble Apex Court in Punjabrao (4th supra), it has no application to the present case on hand as the defence of both the Accused Officers is not at all tenable. Turning to the decision of the Hon'ble Apex Court in C.P. Rao (2nd supra), it is a case where the complainant could not be examined by the prosecution and in such circumstances, the Hon'ble Apex Court declined to interfere with the order of acquittal. The facts in C.P. 36 AVRB,J Crl.A. Nos.857 & 858/2007 Rao (2nd supra) cannot be made applicable to the present case on hand as in this case the complainant was examined and fully supported the case of prosecution.
34. As pointed out, the prosecution did not file any Appeal challenging the order of acquittal of AO-1 and AO-2 of the charge under Section 7 of the PC Act. In view of the above reasons, this Court is of the considered view that the evidence on record categorically proved the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act against AO-1 and AO-2.
35. Turning to the charge under Section 201 IPC against AO-2, the evidence of PW.2 - the mediator and the evidence of PW.6 - Trap Laying Officer would establish the fact that on sensing that ACB trap party rushed into the office of Accused Officers, AO-2 with a deliberate intention, handed over the zip bag to PW.3, who in turn passed over the same to PW.4. Though PW.3 and PW.4 turned hostile, there is categorical evidence of PW.2 and PW.6 in this regard. So, prosecution established further that AO-2 with an intention to screen away the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act, handed over the zip bag to PW.3, who in turn passed over the same to PW.4. Hence, in the considered 37 AVRB,J Crl.A. Nos.857 & 858/2007 view of this Court, the evidence on record is sufficient to convict and sentence the AO-2 for the charge under Section 201 IPC.
36. In the light of the above, I am of the considered view that the evidence adduced by the prosecution is cogent and believable so as to sustain the conviction under Section 13(1)(d) R/w. Section 13(2) of the PC Act and also under Section 201 IPC as such there are no merits in both these Appeals. The points are answered accordingly.
37. In the result, both these Criminal Appeal are dismissed.
38. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the common judgment of this Court along with the trial Court record, if any, to the learned III Additional District and Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam on or before 31.01.2024 and on such certification, the learned Special Judge shall take necessary steps to carry out the remaining sentence imposed against the Appellant in Criminal Appeal No.857 of 2007 i.e., Accused Officer No.2 in C.C. No.29 of 2001, dated 21.06.2007, and to report compliance to this Court. A copy of this judgment be placed before the Registrar 38 AVRB,J Crl.A. Nos.857 & 858/2007 (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
39. As the Appellant in Criminal Appeal No.858 of 2007 i.e., AO-1 is no more, there is no need to take any further steps insofar as Criminal Appeal No.858 of 2007 is concerned.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 22.01.2024 DSH