Andhra HC (Pre-Telangana)
D.Bapu Rao vs And on 6 February, 2013
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HON'BLE SRI JUSTICE R.KANTHA RAO
CRIMINAL APPEAL No.16 OF 2006
06.02.2013
D.Bapu Rao..... APPELLANT
AND
State of Andhra Pradesh, represented by its Special Public Prosecutor for
A.C.B......RESPONDENT
Counsel for the appellant: Sri K.Surender
Counsel for the respondent : Special Public Prosecutor for A.C.B.
<Gist:
>Head Note:
?Cases referred:
1. (2001)10 Supreme Court Cases 103
2. (2006)1 Supreme Court Cases 401
JUDGMENT:-
This appeal is filed by the sole accused in Calendar Case No.16 of 2001 on the file of the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad against the judgment, dated 19.12.2005, whereby and whereunder the appellant was convicted for the offence under Section 7 of Prevention of Corruption Act, 1988 (for short, 'the Act') and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1000/-, in default, to undergo simple imprisonment for three (3) months, and further sentenced to undergo rigorous imprisonment for two (2) years and fine of Rs.2,000/-, in default, to undergo simple imprisonment for six (6) months for the offence under Section 13(1) (d) punishable under Section 13(2) of the Act.
2. Shortly stated, the prosecution case is like this :
The appellant-Mr.D.Bapu Rao was the Office Assistant in NEDCAP, Karimnagar. P.W.2-Y.Venkateswar Rao, a self employed Technician, constructed bio-gas plants at Arpapalli and Sarangapur Villages in Karimnagar District during the year 1999. A cheque for an amount of Rs.4,000/- was to be issued to P.W.2 relating to the construction of bio-gas plants. P.W.2 gave an authorization letter-Ex.P-1 to P.W.1-K.Sunil Rao, his nephew, to receive the cheque on his behalf. The appellant, by then, was dealing with the issuance of cheques relating to construction of bio-gas plants to the Contractors after obtaining the signature of the Manager. When P.W.1 first approached the appellant on 06.09.1999 with the authorization letter-Ex.P-1 for issuing the cheque in favour of P.W.2, it is stated that the appellant demanded an amount of Rs.1,500/- for issuing the said cheque of Rs.4,000/-. It was also alleged that the appellant reiterated the demand on 08.09.1999. P.W.1, who was not willing to pay the bribe amount, received instructions from P.W.2 and lodged a report with P.W.6-D.S.P., A.C.B., Karimnagar at 10.00 a.m. on 09.09.1999. Basing on the said report, a case in Cr.No.5/ACB-KNR/1999 under sections 7 and 13(2) read with 13(1)(d) of the Act was registered and a trap was laid on 10.09.1999. According to the prosecution, in the course of the trap laid on 10.09.1999, the appellant, at about 12.30 p.m., demanded Rs.1,500/- from P.W.1 as bribe and he received the same and kept it in his shirt pocket. Thereafter, P.W.1 submitted Ex.P-1- authorization letter to the appellant. The appellant took the letter, went to the Deputy Manager, obtained his signature on Ex.P-1 and then, prepared the cheque, obtained the signature of the Deputy Manager and handed over the same to P.W.1 after obtaining his signature as a token of receipt of cheque. Then he went outside and signaled to the pre-arranged trap party. The trap party rushed in and the chemical test conducted on the fingers of the appellant yielded positive result and the tainted amount of Rs.1,500/- was recovered from P.W.1 when he produced the said amount taking it out from his shirt pocket. Initially when questioned by D.S.P., A.C.B., the appellant denied of having received any amount from P.W.1. But after the chemical test, he gave an explanation to the effect that he did not demand and receive any bribe, but he received an amount of Rs.1,500/- from P.W.1 as hand loan, which was sent by P.W.2 through P.W.1.
3. The case was tried by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad for the offences punishable under Sections 7 and 13(1)(d) punishable under Section 13(2) of the Act.
4. To substantiate the said charges, the prosecution examined P.Ws.1 to 8 and got marked Exs.P-1 to P-15 and M.Os.1 to 8. None were examined on behalf of the defence and no documents were marked.
5. P.W.1 had categorically stated in his evidence before the trial Court about the appellant demanding bribe of Rs.1,500/- from him on 06.09.1999 and 08.09.1999. He also deposed that on 10.09.1999, in the course of trap, when he approached the appellant herein, he again demanded bribe of Rs.1,500/- and received the amount from him and kept it in his shirt pocket.
P.W.2 stated in his evidence that he did not construct bio- gas plants in the villages of Arpapalli and Sarangpur, but P.W.1 constructed them and the works were executed in the name of P.W.2. Thus, P.W.2 admitted that the cheques were to be issued in his name and that he had issued authorization letter-Ex.P-1 to P.W.1 to receive the cheque on his behalf. However, this witness was treated hostile by the prosecution for not fully supporting the prosecution version. He did not state in the chief examination that he sent hand loan of Rs.1,500/- to the appellant through P.W.1, but he stated in the cross examination that the appellant requested him to lend an amount of Rs.2,000/- or Rs.3,000/- as hand loan prior to the incident and that he sent an amount of Rs.1,500/- to the appellant through P.W.1.
P.W.3 is the mediator. He and another person were taken as mediators by D.S.P., A.C.B., but none of them accompanied P.W.1 to the office of the appellant. Therefore, there is only the evidence of P.W.1 on the aspect of demanding and receiving bribe by the appellant. Since the appellant admitted the receiving of the amount of Rs.1,500/- from P.W.1, the chemical test conducted on the fingers of P.W.1 yielding positive result, does not assume much importance.
P.W.5 was the District Manager, NEDCAP at relevant time. He stated in his evidence that the appellant was authorized by his predecessor to operate bank transactions and that on account of the transfer of the Accountant, the appellant was acting as an Assistant Accountant and was looking after the subsidy transactions of bio-gas plants. He also stated that on 10.09.1999, the appellant brought the authorization letter-Ex.P-1 to him and asked him to release the subsidy amount and on that, he endorsed on Ex.P-1 to issue cheque in favour of P.W.1. Thereafter, according to P.W.5, the appellant prepared the cheque and brought to him and he signed on the cheque. Later, it is stated that D.S.P., A.C.B., came to him and informed about the trap.
6. Considering the aforesaid evidence, the trial Court convicted and sentenced the appellant to punishment as mentioned above.
7. Sri K.Surender, learned counsel appearing for the appellant, argued that P.W.2, in whose favour the cheque was to be issued, did not support the prosecution version and he did not say about receiving any information from P.W.1 as to the appellant demanding any bribe for issuing the cheque, P.W.2 supported the defence theory stating that P.W.2 sent the loan amount of Rs.1,500/- through P.W.1 and therefore, no reliance can be placed on the evidence of P.W.1.
8. Learned counsel appearing for the appellant also further submitted that even though two independent witnesses were taken as mediators, nobody was asked to accompany P.W.1 at the time of offering bribe and that it is quite unusual to demand an amount of Rs.1,500/- for issuing cheque of Rs.4,000/- and therefore, he has taken the defence that the appellant was falsely involved in the trap by P.W.1 at the instance of Subba Rao and Shaik Saidulu, who were working in the office of the appellant.
9. In the first place, I would like to state that irrespective of the fact whether P.W.1 or P.W.2 executed the work of bio-gas plants in Arpapalli and Sarangpur villages, there is no dispute about the fact that a cheque was to be issued by NEDCAP in favour of P.W.1 on the date of trap and the said work relates to the execution of work of bio-gas plants. The evidence of P.W.5 shows that the appellant was In-charge of issuing the cheque after obtaining the signature of P.W.5, the District Manager, and there is also no dispute about the fact that the official favour was pending with the appellant on the crucial date. Since the appellant admitted the receiving of the amount of Rs.1,500/- from P.W.1, the only question remains to be considered is whether the loan theory advanced by the appellant can be accepted so as to give him the benefit of doubt.
10. Learned counsel appearing for the appellant submitted that there was spontaneous explanation from the appellant, which was recorded in the post-trap proceedings, to the effect that the appellant stated before the D.S.P., A.C.B., that he received the amount of Rs.1,500/- from P.W.1, but the said amount was sent by P.W.2 through P.W.1 as loan to the appellant. The said fact, however, was recited in the post trap proceedings and was also spoken to by P.W.6-D.S.P., A.C.B.
11. Learned counsel for the appellant relied on a decision reported in M.ABBAS Vs. STATE OF KERALA1 wherein the Supreme Court held that the explanation offered by the accused in his examination under Section 313 Cr.P.C. to the effect that he had not received the amount as a bribe, but for the purpose of giving the same to another Contractor can be taken into consideration. Relying on the aforesaid judgment, learned counsel for the appellant argued that in the instant case, there was spontaneous explanation from the appellant, which was recorded in the post-trap panchanama, that he received the amount not as a bribe but as a loan advanced by P.W.2 and sent it through P.W.1 can be accepted in view of the inconsistency in the versions of P.Ws.1 and 2 and also in view of the admission of P.W.2 in the cross examination that he sent the amount of Rs.1,500/- through P.W.1 to be given to the appellant as loan, which he asked for earlier.
12. In this context, it is to be borne in mind that when there is a spontaneous explanation from the accused setting forth loan theory, the same cannot be accepted to be true in each and every case. The Court has to find out as to whether the explanation offered by the accused is probable having regard to the facts and circumstances of the case. In the instant case, the appellant initially denied of having received any amount from P.W.1, but when the chemical test yielded positive result and after assessing the gravity of situation, he stated to D.S.P., A.C.B., that he received the amount of Rs.1,500/- from P.W.1, but it was the loan amount which was sent by P.W.2 through P.W.1. Except stating that P.W.2 is a distant relative of the appellant, the relationship is not specifically brought on record by the appellant as to how P.W.2 is related to the appellant. Further, in view of the fact the appellant gave contradictory versions in the post-trap proceedings, the explanation offered by him setting forth the loan theory cannot be said to be spontaneous. At one time, he stated that he did not receive any loan amount from P.W.1., but after the chemical test conducted on him yielded positive, he explained that he received the amount, but towards the loan amount sent by P.W.2 through P.W.1. Therefore, the loan theory set up by the appellant in the present case does not inspire any confidence.
13. Further, there is no evidence on record to show that P.W.1 is a relative of the appellant. In the cross examination by the defence counsel in the trial Court, it seems that the defence theory is that P.W.1 involved the appellant in a false trap at the instance of Subba Rao and Shaik Saidulu, who were working in the office of the appellant, but absolutely, there is no basis for the defence theory. There is no material brought on record by the defence probablizing the version that Subba Rao and Shaik Saidulu were inimical to the appellant and that P.W.1 became instrumental in their hands to falsely involve the appellant in a trap. It is true that the defence version need not be proved beyond reasonable doubt, but it can be proved by the standard of preponderance of probability. The accused need not prove the defence theory or the existence of motive by positive evidence and it is enough to show the circumstances in his favour, but in the instant case, the appellant did not show any circumstances, which probabalize his version that he received the amount not as a bribe, but as a loan advanced by P.W.2 through P.W.1. In the absence of any circumstances, which are favourable to the appellant, it is not possible to accept the defence theory.
14. Learned counsel appearing for the appellant also would submit that when two views are reasonably possible from the very same evidence, the prosecution cannot be said to have proved its case beyond reasonable doubt and in such an event, the accused is entitled for benefit of doubt. In support of his contention, he relied upon a decision reported in T.SUBRAMANIAN Vs. STATE OF T.N.2 wherein the Supreme Court held that when two views are reasonably possible, the view, which is favourable to the accused, is to be adopted giving benefit of doubt to the accused.
15. The Supreme Court, in the judgment second cited relied on by the learned counsel appearing for the appellant, held that in several cases, the principle laid down is that the accused is entitled for benefit of doubt when two views are reasonably possible one supporting the version of the accused and the other supporting the version of the prosecution. In the instant case, from the facts and evidence, it cannot be said that the view that the appellant received the amount of Rs.1,500/- from P.W.1 as loan amount sent by P.W.2 can be said to be reasonably possible. The circumstances do not suggest any possibility of P.W.2 advancing loan of Rs.1,500/- through P.W.1. P.W.1 is no other than the nephew of P.W.2. If really P.W.2 sent the loan amount of Rs.1,500/- through him to hand over the same to the appellant, I do not think that P.W.1 would resort to involve the appellant in a trap using the said amount as tainted money. The defence theory put forth by the appellant when tested on the probability factor, it does not inspire any confidence. There were no circumstances favouring the loan theory put forth by the appellant. It clearly appears that P.W.2 admitted in the cross examination that he advanced loan amount of Rs.1,500/- to the appellant by sending it through P.W.1 was only for the purpose of helping the appellant. Merely because the version of P.W.2 is inconsistent with the version of P.W.1., the evidence given by P.W.1 before the trial Court, which inspires confidence, cannot be brushed aside.
16. As regards the contention that demanding bribe of Rs.1,500/- for issuing a cheque of Rs.4,000/- as unusual, I would like to state that merely because the amount demanded as bribe is not proportionate to the official favour, it cannot be said that no demand was made at all by the appellant. Moreover, I do not think that demanding bribe of Rs.1,500/- for issuing cheque of Rs.4,000/- is unusual. As regards the contention that the D.S.P., A.C.B., did not ask any of the mediators to accompany P.W.1 at the time of offering bribe, I am of the view that in each and every case of trap, there is no hard and fast rule that the accompanying witness should be there. If the evidence of de facto complainant (P.W.1) inspires confidence and the Court thinks that reliance can be placed on the evidence of de facto complainant, it can be accepted and can be taken into consideration without corroboration from independent witnesses. In the instant case, the evidence of P.W.1 is convincing and reliable and the trial Court rightly placed reliance on the evidence of P.W.1.
17. For all the reasons, I am of the considered view that the appellant, in the instant case, failed to substantiate the defence theory even by the standard of preponderance of probability. Placing reliance on the evidence of P.W.1 and the admitted fact of appellant receiving the amount of Rs.1,500/- from P.W.1, the trial Court rightly drew the presumption envisaged under section 20 of the Act against the appellant to the effect that he received the said amount as illegal gratification for doing official favour viz., for issuing cheque of Rs.4,000/- in favour of P.W.1. The appellant, on his part, failed to discharge the burden and to substantiate the defence theory that he received the amount of Rs.1,500/- as a loan sent by P.W.2 through P.W.1 by the standard of preponderance of probability. Therefore, the conviction and sentence passed by the trial Court does not call for any inference in the present case.
18. As regards the sentence, learned counsel appearing for the appellant submits that the appellant retired from service and is aged about 62 years and he seeks indulgence of this Court to reduce the sentence passed by the trial Court. Considering the submission made by the learned counsel, more particularly, the fact that the offence allegedly took place in the year 1999, the sentence of imprisonment passed by the trial Court against the appellant for the offences under Sections 7 and 13(1)(d) punishable under Section 13(2) of the Act is reduced to one year.
19. Accordingly, the Criminal Appeal is partly allowed confirming the conviction passed by the Principal Special Judge for SPE & ACB Cases-Cum-IV Additional Chief Judge, City Civil Court, Hyderabad and reducing the sentence to rigorous imprisonment for one year.
__________________________ JUSTICE R.KANTHA RAO 06th February 2013