Telangana High Court
Saraf Suresh, Hanamkonda, Warangal ... vs The State Of A.P., Rep. By Sp. P.P., ... on 18 December, 2024
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 1632 OF 2009
JUDGMENT:
The appellant/Accused officer filed the appeal questioning the conviction and sentence recorded by the Prl.Special Judge for SPE &ACB Cases, City Civil Court, Hyderabad, in CC.No.24 of 2005, dated 30.10.2009, for the offences punishable under Sections 7 & 13(1)(d) r/w.13(2) of the Prevention of Corruption Act, 1988.
2. Heard Sri B.Balaji, learned counsel for the appellant and learned Special Public Prosecutor for the respondent State.
3. Briefly, the case of the prosecution is that the complainant- PW.1 executed civil contract works at the following locations:
Central Prison, Warangal; Sub-jail at Jangaon; Sub-jail at Adilabad; and Town Police Station at Adilabad. The appellant (Suresh), Senior Accountant at the office of the Executive Engineer, State Police Housing Corporation, Warangal District, did not issue a cheque for Rs.2,25,000/- towards the bill for the work executed by PW.1 at Central Prison, Warangal, despite PW.1 approaching him 4-5 times. PW.1 made oral complaints to superior officers, and finally n 09.12.2003, the appellant issued the cheque. On 10.12.2003, when PW.1 approached the appellant for the bill of works executed in Adilabad District, the appellant allegedly 2 demanded a percentage as bribe and threatened PW.1 that the cheque would not be issued unless the bribe was paid. On 12.12.2003, PW.1 met the appellant at the office of the Executive Engineer and requested preparation of the bill and issuance of the cheque for the works executed by him. The appellant allegedly demanded a bribe of Rs.5,000/- and reiterated that the cheque would not be issued unless the bribe was paid. Unwilling to pay the bribe, PW.1 lodged a written complaint-Ex.P1 with DSP, ACB, on 14.12.2003, seeking necessary action. DSP, ACB (LW.15), after due verification and investigation, registered PW.1's complaint in Crime No.22/ACB-WRL/2003 under Section 7 of the Prevention of Corruption Act on 17.12.2003, at 11.30 a.m. LW.15 secured the services of PW.1 as the decoy, PW.2 as an accompanying witness, and requisitioned the services of PW.9 and LW.12 as mediators and laid a trap on 17.12.2003.
4. The DSP concluded the formalities that were required to be followed prior to proceeding to trap. After conclusion of the same, Ex.P12-pre trap proceedings were drafted. Thereafter, the trap party went to the office of the appellant. PW.2-independent mediator was instructed to accompany PW.1 and witness as to what transpires in between PW.1 and the appellant. Around 03.15 p.m. PW.1 approached the A.O's office with PW.2-the 3 accompanying witness, and requested issuance of the cheque for the work executed. The appellant allegedly reiterated his demand for the bribe. PW.1 gave a positive reply, after which the appellant took PW.1's signatures in the debit vouchers, cheque issue register, bills register and issued a cheque for Rs.2,35,469/-. The appellant then allegedly demanded and accepted the bribe of Rs.5,000/- with his right hand, placed it on his office table, and placed a calculator on the amount. Subsequently, the appellant kept the tainted money in the inner watch pocket of his pant's front side and went to the ground floor of the office building. Upon seeing the arrival of ACB, officials, the appellant allegedly threw the tainted currency notes into the store room (shed) in the gap between the wall and the roof, near the toilets. Phenolphthalein test was conducted on the appellant's fingers and both hands tested positive. The inner flap of the appellant's pant's right side front pocket (watch pocket) also tested positive when subjected to sodium carbonate solution. Similarly, a cotton swab rubbed on the bottom of the calculator yielded a positive result when tested with sodium carbonate solution. The scene of offence was photographed by PW.8 and the tainted amount of Rs.5,000/- was seized at the instance of the appellant. Relevant records concerning PW.1 were produced by the appellant and seized in the presence of mediators-PW.9 and LW.12. 4 The case was subsequently entrusted by the DSP, ACB (LW.15) to PW.11 for further investigation. The appellant was found to have committed offences punishable under Sections 7 and 13(2) read with section 13(1)(d) of the PC Act. PW.10-Managing Director of A.P.State Police Housing Corporation, being the competent authority, accorded sanction to prosecute the appellant vide proceedings ROC No.HR/ 9986/2004-05, dated 30.03.2005.
5. Learned Special Judge, accordingly, found that the work was pending with the appellant and on the date of trap the amount was recovered at the instance of the appellant. The appellant had the exclusive knowledge of the amount and pointing out the bribe amount to the DSP and others is admissible under Section 27 of the Evidence Act.
6. The defence of the appellant is that;
i) The appellant denied demanding or accepting any bribe from PW.1 as alleged. He stated that he obtained PW.1's signature on the necessary registers and delivered the cheque for Rs.2,35,469/- He admitted the trap party's arrival and the recovery of the amount from the storeroom.
ii) The appellant claimed that PW.1 forcibly handed him the money, and while trying to return it, he could not act swiftly due to his 5 physical handicap. When PW.1 went downstairs, the appellant threw the money, which fell into the storeroom through the gap between the wall and the lintel. He alleged that PW.1 filed a false case against him out of personal grudge over technical objections raised by the appellant.
iii) The appellant filed a petition under Section 243 of Cr.P.C. to summon records and submitted a written statement asserting that he strictly followed rules, causing inconvenience to contractors and office staff. He noted discrepancies in PW.1's bills and raised objections, leading to PW.1 harboring a grudge.
iv) The appellant stated that the bills for the Adilabad works were fully scrutinized by 16.12.2003, and the bill was passed. He contended that there was no material evidence to show that he demanded a percentage on 10.12.2003 or a bribe of Rs.5,000/- on 12.12.2003. He further asserted that no official favour was pending with him on 10.12.2003, 12.12.2003 or 17.12.2003, the date of the trap.
v) On 17.12.2003, he claimed that PW.1 approached him, and he handed over the cheque after obtaining PW.1's signatures on relevant records. To his surprise, PW.1 left some money on his office table. While PW.1 and PW.2 hurriedly left, despite the 6 appellant calling out to them, they did not stop. He stated that he then kept the money in his right-side pant pocket, and while going down the steps, he called out to PW.1 again, but PW.1 did not respond. The appellant claimed he threw the money, which fell into the store room just before the ACB officials accosted him.
7. Learned Counsel appearing for the appellant argued on the lines of the defence taken by the appellant. He submits that the question of demanding bribe on 10.12.2003 and 12.12.2003 does not arise when the cheques were made ready only on 16.12.2003 and it was the Executive Engineer who was the competent authority to issue the cheques and he had signed on the vouchers on 16.12.2003.
8. The counsel relied on the Judgment of Honourable Supreme Court in the case of Neeraj Dutta v. State (government of NCT of Delhi) 1 and argued that the burden is on the prosecution to prove the factum of demand by reliable evidence. In the absence of any such proof benefit of doubt has to be extended. The Honourable Supreme Court held that;
"88. What emerges from the aforesaid discussion is summarised as under:
1
(2023) 4 Supreme Court Cases 731 7 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.8
(iii) In both cases of (i) and (ii) above, the offer by the bribe-
giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act."
9. The counsel also relied on the Judgment of the Honourable Supreme Court in K.Shanthamma v. State of Telangana 2 ; P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another 3; and Judgment of this Court in Gulam Mohammed v. Inspector of Police 4. Relying on the said Judgments, the counsel argued that proof of demand in the trap case is sine qua non and failure to establish the demand, mere recovery is of no consequence.
10. On the other hand the learned Special Public Prosecutor argued that presumption arises in the case since the amount was 2 (2022) 4 Supreme Court Cases 574 3 (2015) 10 Supreme Court Cases 152 4 2023 (1) ALD (Crl.) 443 (TS) 9 recovered at the instance of PW.1. The appellant had demanded the amount for issuance of cheque and admittedly amount was outstanding and liable to be paid to the complainant-PW.1. Apart from PW.1, there is an independent witness-PW.2 who is also a witness to the demand and acceptance of bribe on the date of trap. In the said circumstances, since the prosecution was able to prove both demand and acceptance beyond reasonable doubt, the conviction of the appellant is proper.
11. The bribe was demanded on two days i.e. on 10.12.2003 and 12.12.2003. According to PW.1, when he approached the appellant and enquired about the cheques for Adilabad works, the appellant demanded percentage for delivering the cheques. PW.1 again met the appellant on 12.12.2003, however, on the said date, the appellant demanded Rs.5,000/- to be paid as bribe. Vexed by the demand of bribe, PW.1 approached the DSP, ACB and filed complaint two days thereafter i.e. on 14.12.2003.
12. The appellant examined DW.1 who was working as Senior Assistant in the A.P.State Police Housing Corporation. The witness produced records pertaining to the construction work carried out by PW.1 which are marked as Exs.D3 and D4, which contracts are subject matter of the complaint and due to PW.1. According to DW.1, the appellant had raised objections in the final bill. 10 According to Ex.P1-complaint, for the earlier contracts that were executed, bills were prepared and cheques were handed over to the appellant after complaining to superiors. However, in respect of the bills pertaining to Adilabad work, the demand was made initially for percentage and thereafter for Rs.5,000/-. PW.1 admitted that though, on the earlier occasion, he complained to superiors and received a cheque on 09.12.2003. However, PW.1 has not made any complaint with respect to the demand that was made on 12th and 14th, in respect of Adilabad bills. PW.3 received the final bill in relation to PW.1's work on 28.11.2003 from the Deputy Executive Engineer for processing. The bills were processed on 29.11.2003 which were received from the A.O. and he made an entry in the concerned register. The said bills were processed and sent back to the appellant after 01.12.2003. On 04.12.2003, PW.3 again received the bills back from the appellant requesting to prepare a draft note addressed to the Executive Engineer. On 06.12.2003, PW.3 prepared the note and draft and sent them to the A.O for submission. PW.5 resumed charge after leave on 08.12.2003. On 15.12.2003, PW.3 prepared note addressing the Executive Engineer and forwarded it to the appellant for submission to the Executive Engineer. On 16.12.2003, PW.3 made the final initials on the proceedings and sent them to the appellant. The A.O then verified 11 the bills and sent them to the Executive Engineer recommending payment to PW.1. Exs.P2, P3 and P4 are the debit vouchers which were prepared on 16.12.2003 and the cheque Ex.P6, for Rs.2,35,469/- was also prepared on 16.12.2003. The version of PW.1 is that unless the bribe was demanded, the bills could not be processed by the appellant, however PW.1 requested the appellant to process the bills and he would pay the bribe thereafter.
13. PW.1-complainant was a contractor executing jobs frequently in the Department. In the complaint, he states that cheque for earlier works was received on 09.12.2003, however in respect of the Adilabad jail contract bills, demand was made on 10.12.2003. In his cross-examination PW.1 admitted that he did not inform any of the superiors about the alleged demand that was made. The fact remains that on 15.12.2003 and 16.12.2003, the bills were processed and cheque was made ready and signed by the Executive Engineer. The appellant raising objections regarding the final bill was stated by DW1, however the bills were processed by appellant. Earlier also cheque was handed over to the appellant after PW.1 complained to superiors on 09.12.2003.
14. PW.2 is the accompanying witness who went along with PW.1 to observe what transpires in between PW.1 and the appellant. PW.2 stated that when they went inside, the appellant enquired 12 with PW.1 whether he has brought the amount for which PW.1 gave affirmative reply. The amount was handed over to appellant when he asked for the same and the appellant having taken the amount placed it on the table and a calculator over it. The appellant obtained signatures on the vouchers and issued cheque. Then PW.1 came out and gave pre-arranged signal to the trap party. Admittedly the cheque was with the appellant and handed over on the trap date having received the bribe amount.
15. Though, there are discrepancies regarding the appellant's exact location when the trap party arrived whether he was on the stairs or proceeding to the toilet, the fact remains that the initial test that was conducted on the hands of the appellant proved positive. The test on the watch (secret) pocket of his pant proved positive. Having gone to the toilet, the amount was thrown on the shed roof. After the tests were conducted, the appellant led the trap party to the store room and the tainted money was found in the store room. The case of the appellant is that he did not demand the amount, however, the amount was placed on the table. He took the money and followed PWs.1 and 2 while they were leaving he threw the money on the shed since the appellant did not stop. The said conduct appears improbable. If at all the appellant had to return the amount to PWs.1 and 2, he would have either asked his 13 attenders to go and hand it over or throw the money in the direction PWs.1 and 2 left. However, the amount was kept in his pant pocket and then threw the currency on the store room and since there was a gap, the amount fell into the store room, which was pointed out by the appellant and recovered at his instance.
16. The minor discrepancies which crept into evidence regarding the exact location of the appellant when the trap party arrived or the manner in which the amount was accepted on the date of trap in the presence of PW.1 and PW.2 is of no consequence.
17. In the aforesaid facts and circumstances of the case, the appeal is dismissed.
__________________ K.SURENDER, J Date: 18.12.2024 tk