Andhra Pradesh High Court - Amravati
Arishapogu Nagarathnam Nagaraju, vs The Staet Of A.P., Rep By Inspector Of ... on 26 December, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.131 OF 2011
Between:
Arishapogu Nagarathnam @ Nagaraju,
S/o.Papanna, Aged 59 years,
Formerly Office Superintendent (FAC),
O/o.Assistant Director,
District Insurance Office/APGLI
Office, Ongole,
Prakasam District. .... Appellant/AO
Versus
The State of A.P.,
Rep. by Inspector of Police,
ACB, Ongole, Nellore Range,
Rep. by Special Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
DATE OF JUDGMENT PRONOUNCED : 26.12.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
,,
______________________________
A.V.RAVINDRA BABU, J
2
AVRB,J
Crl.A. No.131/2011
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.131 OF 2011
% 26.12.2023
# Between:
Arishapogu Nagarathnam @ Nagaraju,
S/o.Papanna, Aged 59 years, Formerly
Office Superintendent (FAC), O/o.Assistant
Director, District Insurance Office/APGLI
Office, Ongole, Prakasam District. .... Appellant/AO
Versus
The State of A.P.,
Rep. by Inspector of Police,
ACB, Ongole, Nellore Range,
Rep. by Special Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
! Counsel for the Appellant : Sri Sriman,
Rep. Sri K. Ravindra Babu.
^ Counsel for the Respondent : Sri S.M.Subhani,
Learned Standing Counsel-
Special Public Prosecutor.
> Head Note:
? Cases referred:
1) 2005 (8) SCC 364:2005 SCC OnLine (SC)1485
2) (1979) 4 SCC 172
3) (2006) 7 SCC 172
4) 1970 (1) SCC 595
5) Law Finder Doc ID # 1485016:MANU/TL/0316/2019
6) 2017 SCC OnLine Bom 8393:2018 (Crl.L.J) 609
7) 2003 (2) ALD (Crl.) 795:2004 (Crl.L.J) 3892
8) (2014) 2 SCC 1
9) AIR (1992) SC 665:1992 (Crl.L.J) 1490
10) 1976 (Crl.L.J) 172:AIR 1972 SC 91
11) 2005 (6) SCC 211:2005 SCC (Crl.) 1424
12) (2022) SCC OnLine SC 1724
This Court made the following:
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AVRB,J
Crl.A. No.131/2011
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.131 OF 2011
JUDGMENT:
Challenge in this Criminal Appeal is to the judgment, dated 31.01.2011, in Calender Case No.28 of 2006, on the file of the Court of Special Judge for SPE and ACB Cases, Nellore (for short, 'the learned Special Judge'), where under the learned Special Judge found the Accused Officer (AO) guilty of the charges 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 convicted him under Section 248(2) Cr.P.C. After questioning him about the quantum of sentence, the learned Special Judge sentenced him to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.2,000/- in default to undergo Simple Imprisonment for three months for the charge under Section 7 of the PC Act and also to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.2,000/- in default to undergo Simple Imprisonment for three months for the charge under Section 13(2) R/w. Section 13(1)(d) of the PC Act. Both the substantive sentences shall run concurrently. 4
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2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The State, represented by Inspector of Police, Anti- Corruption Bureau (ACB), Ongole, Nellore Range, filed charge sheet pertaining to Crime No.10/RCT-NPK/2005 of Ongole, Nellore Range for the offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of the PC Act alleging, in substance, that the AO by name Arishapogu Nagarathnam @ Nagaraju worked as Office Superintendent (FAC) in the Office of Assistant Director, District Insurance Office/APGLI Office at Ongole, Prakasam District from 31.05.2005 to 19.07.2005 as such he is a 'Public Servant' within the meaning of Section 2(c) of the PC Act.
(i) LW.1 - Gonugunta Anjaiah was working as Multi Purpose Health Supervisor (MPHS) in Addanki Mandal of Prakasam District. His APGLI bond bearing No.422046-A was due to be surrendered on maturity i.e., on 30.06.2005. Therefore, he approached the Office of Assistant Director, APGLI, Ongole on 30.06.2005 at about 11:00 a.m., where he was asked to meet the AO, who was in-charge as Senior Assistant in that office in respect of these matters. Then, the AO suggested that LW.1 must submit 5 AVRB,J Crl.A. No.131/2011 the bond along with a closure form. Therefore, on 02.07.2005 at about 03:00 p.m., he after making ready his application after getting the same attested by the Medical Officer, who is his superior authority in office, along with a closure form, met the AO, who, then demanded for the first time a gratification of Rs.500/-
other than legal remuneration to facilitate processing of the same. When LW.1 expressed his inability to meet such demand, AO made very clear to him that his work would not be attended to, unless the said bribe was paid. Again on 15.07.2005, when LW.1 met the AO for the very same purpose, again similar demand was made for bribe and the AO had also informed him that he had been made Office Superintendent (FAC) and he is also in-charge of his earlier position as Senior Assistant in that office. Not inclined to meet the demand of AO, LW.1 met the Inspector of Police, ACB, Ongole (LW.9) and presented a complaint on 15.07.2005 at about 04:10 p.m., and after due preliminary inquiry, the then DSP, ACB, Nellore (LW.8) registered the FIR against the AO, as above, and investigated into.
(ii) On 16.07.2005, trap was planned to be laid against the AO, by the DSP, ACB, Nellore. In between 10:15 a.m. to 11:15 a.m. on 16.07.2005, he conducted pre-trap proceedings making ready Rs.500/- in cash produced by LW.1 by applying phenolphthalein 6 AVRB,J Crl.A. No.131/2011 powder and instructed him while approaching the AO not to meddle with the cash and not to deliver till there was further demand from him. KNS Ram Babu (LW.3), Senior Assistant in the Office of Deputy Executive Engineer, Panchayat Raj, Sub-Division- I, Ongole and Ahamad Pasha Khan (LW.2), Sub-Treasury Officer in District Treasury Office at Ongole were the mediators, present and associated with this transaction. Thereafter, the trap was laid at about 12:10 p.m. in the Office of AO when he received the tainted cash of Rs.500/- from LW.1, which was observed by one of the panchayatdars - KNS Rambabu and he was caught red handed by the raid party, lead by the DSP, ACB, Nellore. When the AO was subjected to chemical test and directed to rinse his hand fingers in the Sodium Carbonate Solution, the tumbler containing the solution in which he had dipped his right hand fingers, turned to pink colour. Thus, the test proved to be positive. Thereafter, the shirt, which the AO was wearing since he had kept the tainted cash in the left upper pocket of his shirt, was also subjected to chemical test, which proved positive. The AO had also his own cash of Rs.260/-, which was subjected to chemical test after removing the traces from this cash, using a cotton swab of phenolphthalein powder. When the cotton swab was dipped in the sodium carbonate solution, the same turned to pink colour. The 7 AVRB,J Crl.A. No.131/2011 AO was interrogated in the course of those proceedings and certain records relating to the official business of the said office were also seized by the DSP, ACB, Nellore and AO was arrested in that connection. The AO did not declare his personal cash in the Cash Declaration Register on that day and also did not sign in the Attendance Register.
(iii) The Director of Insurance, Government of Andhra Pradesh being the competent authority accorded sanction to prosecute the AO. Hence, the charge sheet.
4. The learned Special Judge took cognizance of the case under the above provisions of law. After appearance of the AO, by complying the necessary formalities under Section 207 Cr.P.C, the learned Special Judge framed charges under Sections 7 and 13(2) R/w. Section 13(1)(d) of the PC Act against the AO, read over and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried.
5. During the course of trial, on behalf of the prosecution, PWs.1 to PW.8 were examined and Exs.P-1 to P-23 and MOs.1 to MO.9 were marked.
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6. After closure of the evidence of the prosecution, AO was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the incriminating circumstances. He put forth a version during 313 Cr.P.C examination that his shirt was taken by the trap party and he did not know what happened to the same. His personal cash of Rs.260/- was subjected to chemical test. He further stated that the file relating to LW.1 - G. Anjaiah was not with him either on the date of trap or prior to the trap and he already submitted the file for consideration before his superior officer.
7. He got filed a written statement putting forth his defence to the effect that on 16.07.2005, he had been to his office to apply casual leave for five days to go to Kurnool to visit his wife, who was sick, and therefore, he had approached LW.4 - Sri P. Chaintaiah, Assistant Director in the office, at whose instance he has to reduce his leave only for three days. He further stated that while he was preparing leave application, LW.1 approached him, introduced himself and informed that he had applied for refund of claim amount and whereafter the AO had informed him that he had already recommended his application and had sent it to LW.4 for 9 AVRB,J Crl.A. No.131/2011 further action. Then, according to AO, LW.1 took out some currency notes from his pocket, and suddenly thrust the same into his left side shirt pocket, saying that it was a formality, in spite of his protest that he never wanted any amount, and when he tried to take out the same in his right hand to return to LW.1 and when he had touched the cash in his pocket, a Head Constable, who was behind him, caught hold of his right hand and did not allow him to remove the cash from his shirt pocket. Thus, he stated that a false trap case is fabricated against him.
8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the AO guilty of both the charges, convicted and sentenced him, as above.
9. Felt aggrieved of the conviction and sentence imposed, the unsuccessful AO in the aforesaid Calender Case, filed the present Criminal Appeal.
10. Now, in deciding this Appeal, the points that arise for consideration are as follows:
1) Whether the prosecution before the trial Court proved that AO is a public servant within the meaning 10 AVRB,J Crl.A. No.131/2011 of Section 2(c) of the PC Act and whether the prosecution obtained a valid sanction to prosecute him for the charges framed?
2) Whether the prosecution before the trial Court proved that prior to the trap and on the date of trap AO demanded PW.1 for a sum of Rs.500/- towards bribe and pursuant to the said demand, accepted the bribe from PW.1 and that by such an act, he obtained pecuniary advantage by corrupt or illegal means in the manner as alleged?
3) Whether the judgment, dated 31.01.2011, in Calender Case No.28 of 2006, is sustainable under law and facts and whether there are any grounds to interfere with the same?
POINT No.1:
11. To prove the sanction, the prosecution examined PW.6 - M. Satyanarayana Reddy, Assistant Director in the Office of Director of Insurance, APGLI Department, AP, Hyderabad. His evidence is that he worked in the Office of Director of Insurance. He brought the file under which the sanction orders were issued to prosecute the AO. He got authorization to give evidence in this regard, which 11 AVRB,J Crl.A. No.131/2011 is marked as Ex.P-18. Government sent final report, copies of FIR, mediators' reports 1 and 2 and gist of the statements of the witnesses. The Section Superintendent processed the file. It was circulated to the Assistant Director and then to the Director. After perusing the documents and application of mind Ex.P-19 sanction order was issued.
12. Sri Sriman, learned counsel, representing Sri K. Ravindra Babu, learned counsel for the appellant/AO, would contend that ACB has already prepared sanction order by keeping the blanks open and the sanctioning authority just filled up the blanks and issued Ex.P-19 which is not tenable to law. He would submit that the evidence on record would disclose that the sanctioning authority issued Ex.P-19 mechanically as such it is not a valid sanction.
13. Sri S.M.Subhani, learned Standing Counsel-cum-Special Public Prosecutor for ACB, appearing for the respondent-State, would contend that there is no need or necessity to examine the signatory of Ex.P-19 and PW.6 had acquaintance with the signatory of Ex.P-19 as such he identified the signature and the learned Special Judge with valid reasons upheld the contention of the prosecution. In support of his contention, he would rely upon 12 AVRB,J Crl.A. No.131/2011 a decision of the Hon'ble Apex Court in State through Inspector of Police, AP v. K. Narasimhachary1.
14. Firstly, this Court would like to make it clear that, during the course of chief-examination itself, PW.6 deposed that he got acquaintance with the signatory under Ex.P-19 and he identified the signature of D. Ravindranath, Director of Insurance, APGLI, Department, A.P., Hyderabad. It is well settled that to prove a sanction like Ex.P-19, sanctioning authority need not be examined before the Court. The person who is acquainted with the signatory can be examined as a witness. Ultimately, it is a matter of consideration to decide whether there was application of mind to the allegations put forth by the ACB. Undoubtedly, Ex.P-19 reveals that there was application of mind. The learned Special Judge rightly held in this regard that the prosecution proved a valid sanction under Ex.P-19 so as to prosecute the AO. Though there was some discrepancy in the name of AO under Ex.P-18, under which authorization was given to PW.6 to give evidence, but it is not going to affect the validity of Ex.P-19 in any way. Considering the same, this Court is of the considered view that the prosecution proved a valid sanction under Ex.P-19. There is no dispute that 1 2005 (8) SCC 364 : 2005 SCC OnLine (SC) 1485 13 AVRB,J Crl.A. No.131/2011 the AO was a public servant as on the date of trap and he was drawing salary from the Government. As seen from the decision of the Hon'ble Apex Court in K. Narasimhachary (1st supra), the Hon'ble Apex Court in Mohd. Iqbal Ahmed v. State of Andhra Pradesh2 held as follows:
"The order of valid sanction can be proved by the Sanctioning Authority in two ways : either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or (2) by adducing evidence alinude to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it."
15. So, it is a case where the prosecution examined PW.6, who was acquainted with the signature of the sanctioning authority to prove the valid sanction. Literally, the sanction order shows the application of mind. Hence, it cannot be held that Ex.P-19 - sanction order was invalid. This point is answered accordingly in favour of prosecution.
POINT Nos.2 and 3:
16. Mr. Sriman, learned counsel, representing Sri K. Ravindra Babu, learned counsel for the appellant/AO, would contend that 2 (1979) 4 SCC 172 14 AVRB,J Crl.A. No.131/2011 according to the case of prosecution, PW.7 was the DSP, ACB, Nellore who laid the trap against the AO. PW.8 was the Inspector of Police, ACB, Ongole, Nellore Range who claimed to have assisted PW.7 in laying the trap and prior to that in getting antecedents' enquiry at the instructions of PW.7 and further he conducted some part of investigation. PW.8 was incompetent to investigate the case and further PW.7 had no power to direct PW.8 to make antecedents verification. So, the entire investigation was vitiated. According to Section 17 of the PC Act, no Officer below the rank of Deputy Superintendent of Police or Police Officer of equivalent rank shall investigate any offence punishable under the Prevention of Corruption Act. He would contend that PW.7 was the DSP, ACB. According to Section 17 of the PC Act, PW.8 - Inspector of Police, ACB was not authorized to conduct investigation unless such a power was conferred on him. So, when he had no power to participate in the investigation, PW.7 had no authority to ask PW.8 to get antecedents verification. In support of his contention, he would rely upon a decision of the Hon'ble Apex Court in State Inspector of Police, Visakhapatnam v. Surya Sankaram Karri3. He would further contend that no antecedents' enquiry was conducted in accordance with law. PW.8 had no power to look 3 (2006) 7 SCC 172 15 AVRB,J Crl.A. No.131/2011 into the antecedents of PW.1 and AO. He would contend that unless the ACB officials secured some adverse evidence with proper basis, they cannot come to a conclusion that antecedents of AO were questionable. So, the very registration of FIR against the AO was impermissible. In support of such contention, he would rely upon the decision of the Hon'ble Apex Court in P. Sirajuddin v. State of Madras4 and a decision of Telangana High Court in Vittala Gopala Krishna v. The State of Telangana, ACB5.
17. He would submit that according to the case of prosecution, firstly, AO met PW.1 on 30.06.2005 and sought some clarification as to the procedure to get surrender of his APGLI bond and later he submitted Exs.P-1 and P-2 on 02.07.2005. PW.1 alleged that AO demanded him to pay the bribe of Rs.500/- to process the work under Exs.P-1 and P-2 on 02.07.2005 as well as on 15.07.2005, which were the prior dates to 16.07.2005 and 16.07.2005 was the date of trap. According to the stamp on Ex.P-2 and the evidence of PW.3 and others, submission of Exs.P-1 and P-2 in the office of AO was on 05.07.2005. So, when PW.1 submitted Exs.P-1 and P-2 on 05.07.2005, his evidence that on 4 1970 (1) SCC 595 5 Law Finder Doc ID # 1485016 : MANU/TL/0316/2019 16 AVRB,J Crl.A. No.131/2011 30.06.2005 and 02.07.2005 he went to the office of AO cannot stand to any reason. So, the alleged demand on 02.07.2005 is false. Apart from this, the defence of AO was that even on 15.07.2005, PW.1 did not meet him. On 16.07.2005, AO came to the office to submit his leave application for 5 days and then PW.1 came to him, enquired about his work and he told him that he already sent the file to Superintendent and then he thrust the amount of Rs.500/- into his shirt pocket. There was evidence of PW.3 to prove that on 05.07.2005 applications under Exs.P-2 and P-3 were submitted. According to PW.3, he found the file on his table on 15.07.2005. So, by 16.07.2005, AO was not in the custody of the file. All these goes to prove that there was no official favour pending in the manner as alleged by the prosecution. Prosecution failed to prove the demand for bribe as alleged on 02.07.2005, 15.07.2005 and on 16.07.2005. PW.7 employed PW.2 as a witness to observe the events between PW.1 and AO and the learned Special Judge found fault with the evidence of PW.2 in this regard. However, he gave little importance to the evidence of PW.2 looking into other circumstances. When the manner in which trap laid was tainted on account of the fact that PW.2 claimed to have acted as a witness to the events during the post-trap between AO and PW.1, the learned Special Judge ought to have extended 17 AVRB,J Crl.A. No.131/2011 benefit of doubt to the AO. There was no corroboration to the testimony of PW.1 with regard to the allegations of demand for bribe. In support of such contention, learned counsel would rely upon a decision of the Bombay High Court in Syed Murtuza Syed Murad Ali v. State of Maharashtra6. He would contend that looking into Ex.P-10 - rough sketch of the scene of offence and the evidence of PW.2 from where he claimed to have witnessed the event, it was highly doubtful for PW.2 witnessing the events. There was no such probability for PW.2 to witness the events. However, the learned Special Judge found fault with the attitude of Investigating Officer and PW.2 in this regard which was reflected in Para No.43 of the judgment. The so called file relating to PW.1 was seized from the possession of PW.3 during the post-trap but not from the possession of AO. Exs.P-21 and P-22 i.e., the proceedings of Director, ACB, Hyderabad entrusting the case to PW.8 and the attested copy of the proceedings of the Commissioner and Director were filed on the date of evidence of PW.8. The AO set forth a probable defence theory as to how the amount could be found in possession. The learned Special Judge without any reason disbelieved the defence of AO. He would submit that the evidence on record warrants the Court to extend 6 2017 SCC OnLine Bom 8393 : 2018 (Crl.L.J) 609 18 AVRB,J Crl.A. No.131/2011 benefit of doubt when the prosecution failed to prove the charges alleged against the AO. As the entire investigation was vitiated for want of authorization as contemplated under Section 17 of the PC Act irrespective of the evidence entire trial was vitiated as such appellant is entitled for an acquittal.
18. Sri S.M.Subhani, learned Standing Counsel-cum-Special Public Prosecutor for ACB, appearing for the respondent-State, would vehemently contend that what all the arguments that are canvassed on behalf of the appellant/AO that PW.7 had no power to ask antecedents verification report from PW.8 and PW.8 had no power to continue the investigation are contrary to the well established legal principles. He would submit that admittedly under Section 17 of the PC Act, insofar as an Officer in the Rank of DSP is concerned, there was no need or necessity for him to obtain an order from the Magistrate to conduct investigation. The embargo was only with regard to the Officers below the rank of DSP. He would contend that the State of Andhra Pradesh by virtue of G.O.Ms.No.10, dated 07.01.1999, conferred powers on the Inspectors of Police of ACB to investigate all the offences punishable under the PC Act without the order of the learned Magistrate or the Magistrate of First Class. The above said G.O. is 19 AVRB,J Crl.A. No.131/2011 a notice to the general public. Contrary to the above, a contention is canvassed before this Court. All those contentions were not raised before the learned Special Judge. He would contend that the erstwhile Andhra Pradesh High Court at Hyderabad in M. China Gopalakrishna v. The State of A.P7, had an occasion to uphold the contention of ACB that Inspectors of ACB were authorized to conduct investigation through G.O.Ms.No.10, General Administration (SC.E), Department. So, by relying upon the aforesaid G.O.Ms.No.10 and the decision, his contention is that PW.7 had the power under Section 17 of the PC Act to investigate the case and as already G.O.Ms.No.10 confers powers on the Inspectors also, he had power to get the antecedents report from PW.8 and further PW.8 had the power to continue the investigation. There is evidence of PW.1 to speak of the demands dated 02.07.2005 and 15.07.2005. PW.2 was the accompanying witness to the events happened. There was a direction in the post trap proceedings to PW.2 to observe the events happened between AO and PW.1. ACB had every power to employ mediators with instructions to accompany the complainant and to observe the events. The findings of the learned Special Judge suspecting something against PW.2 for his witnessing the events were not 7 2003 (2) ALD (Crl.) 795 : 2004 (Crl.L.J) 3892 20 AVRB,J Crl.A. No.131/2011 proper. However, there is no dispute that AO dealt with the tainted amount. It is a case where the applications like Exs.P-1 and P-2 cannot be brought to the office of AO without enquiring about proper proforma in which Ex.P-1 was to be submitted. Learned Special Judge took into consideration all those facts and upheld the case of prosecution that PW.1 would have visited the office of AO much prior to 05.07.2005. Though practically stamp of AO office could be shown on Ex.P-2 as that of 05.07.2002 but evidence of PW.1 is that he submitted the application before AO on 02.07.2005. It was quite natural for PW.1 to submit his applications under Exs.P-1 and P-2 before AO who was Senior Assistant by then. Evidence on record would prove the fact that AO was supposed to process application like Ex.P-2. According to the evidence of PW.3, AO sent the file to him on 15.07.2005. The findings of the learned Special Judge were that by 15.07.2005 evening file must have reached there. He would submit that PW.1 had no knowledge on 15.07.2005 that the AO sent the file to PW.3. So, he was under a bona fide impression even on 16.07.2005 that file was with AO. According to the evidence of PW.1, he met AO on 16.07.2005, where he demanded and accepted tainted amount and assured that a cheque will be issued to him soon. So, the evidence adduced is sufficient to say that official favour in respect 21 AVRB,J Crl.A. No.131/2011 of the work of PW.1 was pending with AO. There was no dispute that AO dealt with the tainted amount on 16.07.2005. The amount was recovered from his possession. AO did not sign the Attendance Register in their office on 16.07.2005. That it is not sufficient to disbelieve the case of the prosecution. His presence during the post trap was not in dispute. The learned Special Judge thoroughly appreciated the evidence on record on all material aspects and believed the case of prosecution and there are no grounds to interfere with the well reasoned judgment of the learned Special Judge as such the Appeal is liable to be dismissed.
19. PW.1 is no other than the complainant. As evident from the deposition of PW.1, he deposed that his APGLI bond was maturing on 30.06.2005, which was Ex.P-1, as such on the same day he went to the office of AO and the office staff told him that AO was the concerned clerk. He met him and has shown Ex.P-1 for which AO replied that it has to be submitted along with the closure form duly signed by their Drawing Officer. Then, he returned to Addanki, which was his headquarter. On 02.07.2005, he obtained the signature of his Drawing Officer. Ex.P-2 is the attested xerox copy of closure form. Then, he went to AO and submitted Exs.P-1 and P-2 to him. AO confirmed that it is sufficient but demanded 22 AVRB,J Crl.A. No.131/2011 bribe of Rs.500/-. He expressed his inability to give the amount because under the bond he will get only Rs.3,910/- Then, AO told him that unless the amount is paid, his case would not be done. As there was no other go, he went to his village. Again on 15.07.2005 at 03:00 p.m. when he went to AO, AO told him that 2 days prior he became Superintendent and he will look after the seat of Senior Assistant and he has to pay the bribe amount of Rs.500/- on 16.07.2005. So, he lodged report with ACB on 15.07.2005 itself at 04:10 p.m. He was asked to come on 16.07.2005 with proposed bribe of Rs.500/-. He spoke of the post- trap events involving himself, DSP, ACB and further two mediators. He spoke of the demands and phenolphthalein test conducted by the DSP, ACB. Insofar as the post-trap events are concerned, his evidence that he was directed to give the proposed bribe amount, which was applied with phenolphthalein powder and kept in his right side pant pocket, to AO only on his further demand. Accordingly, he met the AO. During the post-trap, he asked AO and enquired about his work. AO asked him, whether he brought the demanded bribe. He answered in positive. Then, AO asked him to give the amount. Then, he gave the amount to him. AO took the same with his right hand and kept the same in his left side upper shirt pocket and told him that he will see that his 23 AVRB,J Crl.A. No.131/2011 cheque would be issued at the earliest point of time. Then, he came out and gave the pre-arranged signal.
20. The testimony of PW.2 - mediator to the pre-trap and post- trap proceedings insofar as the post-trap proceedings are concerned, his evidence is to the effect that DSP, ACB asked him to follow PW.1 to the office of AO and stay at some distance from PW.1 and AO and observe the events in between PW.1 and AO. Accordingly, he accompanied PW.1 to the office of AO. He stopped himself at a hall at a place from which inside of the room of AO is visible. PW.1 went and talked to AO. AO told him to sit in a chair. PW.1 sat in a chair. PW.1 enquired about his work and AO told that it was under process. AO asked PW.1 about the amount. PW.1 gave the amount to AO. AO received the same with his right hand and kept the same in his left side shirt pocket. Thereafter, PW.1 came out and gave a pre-arranged signal. Then the DSP, ACB and trap party members rushed there. DSP, ACB enquired AO about what happened and he got conducted chemical test. He also conducted chemical test to the tainted amount removed from the shirt pocket of AO, which yielded positive result. DSP, ACB seized the file relating to PW.1 from LW.4 - P. Chintaiah. Ex.P-6 is the file. Ex.P-7 is the Attendance Register. Ex.P-8 is the register of 24 AVRB,J Crl.A. No.131/2011 declaration of cash on hand by the officers and staff. Mahazar was drafted about happening of events.
21. Prosecution examined PW.3 - P. Chintaiah, Assistant Director in District Insurance Office, regarding the procedural aspects. He deposed that AO worked as Senior Assistant and he was full additional charge of Office Superintendent during the period of trap. His duty was to process the claims of the matured policies of the employees. Employees would submit the maturity bonds in Tappal section. After necessary initial by the concerned clerk in Inward Register, the file would go to Senior Assistant, Senior Assistant has to process it. In this case, AO placed the file on the table of PW.3 on 15.07.2005. After the trap, he perused the file and found AO filled up columns with regard to necessary details with his initials. ACB officials examined him and he produced the file before them. On the next date of trap, he processed the file. AO did not declare his personal cash in Ex.P-8 register on the date of trap.
22. Prosecution examined PWs.4 and PW.5, who are employees in the office of AO, and they confirmed about the trap but on certain aspects they did not support the case of prosecution. They 25 AVRB,J Crl.A. No.131/2011 turned hostile with regard to the allegations in the case of prosecution that they witnessed PW.1 meeting AO twice or thrice.
23. PW.7 is the Trap Laying Officer and PW.8 is the Inspector of Police, ACB.
24. The evidence of PW.7 means that he came to know about the report of PW.1 through the Inspector and asked him to make antecedents verification and basing on the antecedents verification, he registered the FIR. He spoke of the pre-trap and post-trap events and his evidence is in tune with the evidence of PW.2 - mediator.
25. PW.8 spoke of receipt of complaint through PW.1 and, after getting instructions from PW.7 he made antecedents verification and endorsed his opinion on Ex.P-3. He deposed that on 25.07.2005 he received an order from the Office of Director General, ACB, Hyderabad to continue the investigation, which is Ex.P-21.
26. Firstly, this Court would like to deal with the contention of learned counsel for the appellant, in view of Section 17 of the PC Act, regarding the competence of PW.7 to ask PW.8 to get antecedents' verification and competence of PW.8 to make 26 AVRB,J Crl.A. No.131/2011 antecedents verification. This Court would like to make it clear that, admittedly, Section 17 of the PC Act contemplates the Officers who are authorized to investigate the offences. It runs as follows:
"17. Persons authorized to investigate -- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,--
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without 27 AVRB,J Crl.A. No.131/2011 the order of a police officer not below the rank of a Superintendent of Police."
27. A plain reading of Section 17 of the PC Act means that insofar as the Deputy Superintendent of Police is concerned, he has every power to conduct investigation without there being any order from any Magistrate. The embargo is relating to the Officers below the rank of DSP.
28. Turning to the decision cited by learned counsel for the appellant in Surya Sankaram Karri (3rd supra), the Hon'ble Apex Court had an occasion to deal with the powers of the Officers contemplated under Section 17 of the PC Act, when an Appeal was filed by the CBI before the Hon'ble Apex Court. Here, the present case was dealt with by the ACB. So, here the prosecution has come up with G.O.Ms.No.10, dated 07.01.1999, and also the decision of the erstwhile High Court of A.P. in M. China Gopala Krishna (7th supra). As the Central Bureau of Investigation is the Investigation Agency under the control of Central Government as such Anti Corruption Bureau is under the control of the State Government, the case on hand is to be dealt with looking into G.O.Ms.No.10, dated 07.01.1999. Hence, the decision of the Hon'ble Apex Court in Surya Sankaram Karri (3rd supra), in the 28 AVRB,J Crl.A. No.131/2011 light of the above, has nothing to do with the ACB, an investigating agency under the control of A.P. Government. Keeping in view, now I would like to proceed to appreciate the contentions.
29. As seen from G.O.Ms.No.10, dated 07.01.1999, the Government of Andhra Pradesh conferred powers on the Inspectors of Police, ACB, Andhra Pradesh to investigate all the offences under the Prevention of Corruption Act. Apart from this, the erstwhile Andhra Pradesh High Court at Hyderabad in M. China Gopala Krishna (7th supra) had an occasion to deal with the powers of ACB, Inspectors to conduct investigation with reference to G.O.Ms.No.10, dated 07.01.1999. So, it is very clear that in tune with Section 17 of the PC Act, Government of A.P. conferred powers on the Officers in the cadre of Inspectors of Police, ACB to conduct the investigation.
30. The contention of learned Special Public Prosecutor that contrary to the aforesaid G.O. and contrary to the decision of the erstwhile Andhra Pradesh High Court at Hyderabad in M. China Gopala Krishna (7th supra), the appellant got advanced an argument with reference to Section 17 of the PC Act is tenable. In other words, the appellant without bothering about the issuance of 29 AVRB,J Crl.A. No.131/2011 aforesaid GO, canvassed a contention questioning the competence of PW.7 to entrust the antecedents verification to PW.8 and further competence of PW.8 to investigate the case. In view of the aforesaid circumstances, the contentions advanced on behalf of the appellant deserve no merit.
31. With regard to the antecedents' verification, said to be conducted by the ACB officials, there is evidence of PW.7 and PW.8. Learned counsel for the appellant would rely upon two decisions in support of his contentions. Coming to the decision of the Telangana High Court in Vittala Gopala Krishna (5th supra), it is a case where the Telangana High Court had an occasion to quash the investigation under the Prevention of Corruption Act. The facts and circumstances in the above said case virtually stand on a different footing as this Court is dealing with a Criminal Appeal against the judgment of the trial Court, which was rendered after full-fledged trial. Turning to another decision of the Hon'ble Apex Court in P. Sirajuddin (4th supra), there was a case where the confidential enquiry was setup by the Vigilance and ACB Department and it was found that he was liable to be tried for the offences under Sections 161 and 165 Cr.P.C and Section 5(1)(a) and (d) of the PC Act. It was a case where against the Chief 30 AVRB,J Crl.A. No.131/2011 Engineer, Highways and Rural Works, Madras there was a complaint and according to the instructions of the Chief Minister, Chief Secretary orally ordered a full-fledged enquiry in the matter and Deputy Superintendent of Police, Vigilance and Anti- Corruption Department was asked to make a personal enquiry and to report under the supervision of one G.K. Ranganathan. When the matter went up to the Hon'ble Apex Court so as to quash the investigation, the Hon'ble Apex Court at Para No.17 held as follows:
"17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which 31 AVRB,J Crl.A. No.131/2011 amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the opposition in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti- Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have 32 AVRB,J Crl.A. No.131/2011 knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Cr. PC by lodging a first information report".
32. Coming to the present case on hand, it is distinguishable to the facts in P. Sirajuddin (4th supra).
33. Coming to the present case on hand, in view of decisions of the Hon'ble Apex Court, it is mandatory to make some preliminary enquiry before registration of FIR under the Prevention of Corruption Act. In such a scenario, now the ACB is adopting a preliminary enquiry on receipt of the report with regard to the antecedents of a person against whom bribe allegations are raised and also about the antecedents of the complainant, who lodges the report. Thus, the aforesaid two decisions have nothing to do with the present case on hand.
34. The Hon'ble Apex Court in Lalita Kumari v. Government of U.P. and others8, spelled out the cases where a preliminary enquiry is to be conducted. They are as follows:
(a) Matrimonial disputes/family disputes 8 (2014) 2 SCC 1 33 AVRB,J Crl.A. No.131/2011
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
35. So, the decision of the Hon'ble Apex Court in Lalita Kumari (8th supra), has application to the present case on hand. The fact remained is that according to the evidence of PW.7, having received telephonic call from PW.8 that a report is received against AO, he instructed the Inspector of Police, ACB to make antecedents verification of AO and also PW.1 and accordingly, PW.8 submitted Ex.P-3 to him on 16.07.2005 at 09:30 a.m. along with his endorsement that AO is corrupt and ill-reputed and PW.1 has no ill-motive to implicate the AO. It was testified by PW.8. It is to be noted that antecedent's verification to be done by ACB officials before registration of FIR has to be confidential. It is not that the mode of enquiry by the Investigating Officer is to be revealed. Considering the evidence of PW.7 and PW.8, the learned Special Judge made some adverse comments. However, it was held 34 AVRB,J Crl.A. No.131/2011 that it will not go to the very root of the case. Having considered the evidence on record, this Court is of the considered view that as the mode of conducting antecedents enquiry has to be confidential, the Court has to satisfy itself as to whether there was an antecedents enquiry or not.
36. Having regard to the above, I am of the considered view that the evidence adduced by the prosecution is sufficient to show that preliminary enquiry was made by PW.8 at the instructions of PW.7 before registration of FIR. The learned Special Judge dealing with the evidence of PW.7 and PW.8 was of the view that preliminary enquiry was not conducted properly. It is to be noted that preliminary enquiry is to be conducted by ACB on a complaint against a public servant to ascertain about the antecedents of AO or the complainant or whether the complainant has any ill-motive to implicate the public servant falsely. Under the guise of preliminary enquiry, investigating officer is not supposed to come to a conclusion about the truth or otherwise of the contents of report and is not expected to make a detailed enquiry. This Court is in disagreement with the learned Special Judge in finding fault with the preliminary enquiry. However, his observations were that it will not go to the very root of the matter. In my considered view, 35 AVRB,J Crl.A. No.131/2011 the prosecution was able to prove before the learned Special Judge that before registration of FIR, care was taken to make preliminary enquiry.
37. Now this Court would like to deal with as to whether prosecution proved pendency of official favour in respect of the work covered under Exs.P-1 and P-2 before the AO in the manner as alleged. There was no dispute that the bond under Ex.P-1 was matured by 30.06.2005. The office of AO was competent to take proper action to see the process of encashment of the bond covered under Ex.P-1. It is the claim of PW.1 that on 30.06.2005, he went to the District Insurance Office, Ongole and after necessary enquiry came to know that AO was the concerned person. When he met the AO, he clarified as to what is to be done and accordingly PW.1 filled up the contents of Ex.P-2 and submitted Exs.P-1 and P-2 to AO on 02.07.2005. Then, AO confirmed that it was sufficient to process but demanded him bribe of Rs.500/-. It is no doubt true that by virtue of Exs.P-1 and P-2, stamp and seal and the evidence of PW.3 literally the applications on Exs.P-1 and P-2 were of 05.07.2005. So, it was the basis for AO to advance an argument before the trial Court that when Exs.P-1 and P-2 were submitted on 05.07.2005, the 36 AVRB,J Crl.A. No.131/2011 question of PW.1 meeting him on 02.07.2005 and the alleged demand made by him would not arise.
38. Though, literally Ex.P-2 and the evidence of PW.3 means that Exs.P-1 and P-2 were submitted in the office of AO on 05.07.2005 but there was categorical evidence of PW.1 that he first attended the office of AO on 30.06.2005, on which date, the AO asked him to submit it along with closure form under Ex.P-2 and accordingly he returned to Addanki and got filled up it on 02.07.2005 and took the same to AO Office on 02.07.2005 and submitted before him for which he made a demand. It is to be noted that filling of all the contents of Ex.P-2 was undoubtedly on 02.07.2005, as evident from the contents thereof. Apart from this, Ex.P-2 was in a specific proforma. It was in Form No.1 with various columns. So, it was a specific proforma undoubtedly. It would not be readily available anywhere except in the office of AO in normal circumstances. So, the availability of Ex.P-2 could only be at Ongole. Even according to Page No.3 of Ex.P-2, it reads that it would be available at Sri Srinivasa Departmental Stores, Ongole. So, it goes to prove that on the guidance of AO only on 30.06.2005, PW.1 could obtain Ex.P-2 and again came back to Addanki and filled up the same. These are all the circumstances 37 AVRB,J Crl.A. No.131/2011 strongly supporting such a theory. So, it is not that on 05.07.2005, the entire contents in Ex.P-2 were filled up. A reasonable inference which the Court can draw is that having got clarification from AO, PW.1 procured Ex.P-2, got filled up the same and presented the same to AO. Though the endorsement was dated 05.07.2005 but the facts and circumstances means that PW.1 had an occasion to meet AO much prior to 05.07.2005. So, this Court has no reason to disbelieve the evidence of PW.1 about his visiting the office of AO on 30.06.2005 and 02.07.2005.
39. Apart from this, the specific evidence of PW.3 is that he found the file relating to PW.1 at his table on 15.07.2005. He did not specify the time at which he found the file on his office table. Basing on these circumstances, and as spoken to by PW.3 in his evidence, the contention of AO that as he already processed the file by 15.07.2005, absolutely, he would have no occasion at all to make any demand for bribe on 16.07.2005. It is also his contention that PW.1 did not meet him either on 30.06.2005, 02.07.2005 and 15.07.2005. It is to be noted that, absolutely, in the entire cross-examination of PW.1 nothing was elicited how PW.1 for getting the amount on bond covered under Ex.P-1 would go to the extent of fabricating a version against AO for no fault of 38 AVRB,J Crl.A. No.131/2011 him. In all probability, the facts and circumstances are such that the file must have reached before PW.3 by the evening of 15.07.2005. 15.07.2005 was the date on which PW.1 lodged report with the ACB officials. The report marked under Ex.P-3 literally reflects all the meetings of PW.1 with AO on 30.06.2005, 02.07.2005 and 15.07.2005. So, the direct evidence of PW.1 has some support from the contents of Ex.P-3. AO did not open up his defence clearly in the entire cross-examination of PW.1 or before the Investigating Officer on which date, in fact, he processed the file relating to PW.1. Everything is missing in this regard except a defence that he already processed the file. So, considering the same, it is very clear that after making a demand to PW.1 as regards the alleged bribe amount only it appears that AO sent the file to the table of PW.3 by that evening. The fact that the file relating to Exs.P-1 and P-2 was sent to PW.3 by AO on 15.07.2005 was not within the knowledge of PW.1. Knowledge of such things cannot be attributed against PW.1. It is a fact that on 16.07.2005 AO did not sign the Attendance Register but he attended the office undoubtedly. Apart from this, there is no dispute that PW.1 met the AO physically on 16.07.2005 even by which time, he had no knowledge that the file was sent to PW.3. Having regard to the overall facts and circumstances, I am of the considered view that 39 AVRB,J Crl.A. No.131/2011 the evidence on record was amply sufficient to say that official favour in respect of Exs.P-1 and P-2 was pending with AO in the manner as stated by the prosecution. The contention of AO that no official favour was pending with him as on the date of alleged trap deserves no merit.
40. Now, coming to the allegations of demand and acceptance of bribe by AO, there remains the evidence of PW.1 to speak of the demands, dated 02.07.2005, 15.07.005 and 16.07.2005. There was evidence of PW.2 - accompanying witness to speak of the demand dated 16.07.2005 during the post-trap. There was no dispute that the AO dealt with the tainted amount and it was recovered from his physical possession. The chemical test that was conducted to the right hand fingers of AO and inner linings of the left shirt pocket yielded positive result. AO admitted that amount was recovered from his physical possession only. PW.2, the mediator and PW.7 - Trap Laying Officer testified about conducting of phenolphthalein test and recovery of the tainted amount from the possession of AO. The defence of AO in the post trap as well as during the course of cross-examination of PW.1 is that on 16.07.2005, PW.1 came to the seat of the AO and disclosed his name and that AO told him that he already 40 AVRB,J Crl.A. No.131/2011 recommended his application and sent the file to the Assistant Director and no documents were with him and then he (PW.1) removed some currency notes and suddenly thrust the same into his left side shirt pocket by saying that it is only a formality and then AO stated that he has no necessity of the amount and he does not want to take the amount and tried to remove the amount to give back to him and then when he had touched the cash, a Head Constable who was behind the back of AO, caught hold of his right hand and did not allow him to remove the cash from his shirt pocket.
41. During cross-examination, it was elicited from PW.1 that two or three years prior to this case, his second bond was misplaced. He filed an application for issuance of duplicate bond for which he made correspondence for one year with the office of Assistant Director i.e., the office of AO. At last, he sent an application to the Assistant Director stating that in spite of his correspondence of one year they did not issue any duplicate bond and after waiting for one month, he will approach the Consumer Forum. Immediately thereafter they sent a duplicate bond. Ex.P-12 is the copy of said application. He denied that in those circumstances he developed prejudice against the office of 41 AVRB,J Crl.A. No.131/2011 Assistant Director, APGLI, Ongole. This was the defence set forth before PW.1.
42. There was evidence of PW.2 - mediator with regard to the events happened in the pre-trap and post-trap proceedings. As seen from Ex.P-9 - post-trap proceedings, the trap laying officer instructed PW.2 to observe the AO and PW.1 in close proximity and to observe further the happenings between them. In that view of the matter, PW.2 claimed that he closely followed PW.1 and observed the events. As seen from the post-trap proceedings, his version before the trap laying officer was that he observed the conversation between AO and PW.1. Admittedly, he did not make any mention in the post-trap that AO demanded PW.1 to pay the bribe and then PW.1 paid the bribe. However, his post-trap version was that he observed the conversation only. Literally, though the evidence of PW.2 that AO demanded PW.1 to pay bribe was an improved version, as pointed out by the learned Special Judge, but his overall evidence as if he observed the conversation between PW.1 and AO and witnessed giving of the bribe amount by PW.1 to AO was not an improved version.
43. As seen from the judgment of the learned Special Judge, an adverse comment was made against PW.2 as if he was interested 42 AVRB,J Crl.A. No.131/2011 in the case of prosecution. To arrive at such conclusion, the learned Special Judge placed reliance on the decisions of the Hon'ble Apex Court in Som Parkash v. State of Punjab9, Raghbir Singh v. State of Punjab10 and Ganga Kumar Srivastava v. State of Bihar11.
44. It is to be noted that the facts in Som Parkash (9th supra) were such that the prosecution based its case on the interested testimony of the witnesses.
45. Turning to the decision of the Hon'ble Apex Court in Raghbir Singh (10th supra), the Hon'ble Apex Court commented the case of prosecution when it relied upon the testimony of the interested witnesses. The factual matrix was such that one Jagdish Raj was no other than the de-facto complainant at whose instance trap was laid against the appellant. Arjun Das was relative of Jagdish Raj. In such circumstances, the Hon'ble Apex Court found fault with the case of prosecution for basing its case on the interested witnesses of the prosecution case. 9 AIR 1992 (SC) 665:1992 (Crl.L.J) 1490) 10 (1976 (Crl.L.J) 172:AIR 1976 SC 91 11 2005 (6) SCC 211:2005 SCC (Crl.) 1424 43 AVRB,J Crl.A. No.131/2011
46. Turning to the present case on hand, PW.2 was no other than an independent witness. He was a public servant.
47. Turning to the third decision in Ganga Kumar Srivastava (11th supra), the prosecution employed a watcher to observe the post-trap events and there was discrepancy with regard to the version of watcher and the trial Court made an attempt to explain the same. In such circumstances, the Hon'ble Apex Court found fault with the case of prosecution.
48. Coming to the present case on hand, by any stretch of imagination, it cannot be held that PW.2 was interested in the case of prosecution. There is no hard and fast rule that a person who was involved in the pre-trap proceedings cannot act as an accompanying witness to observe the events between the complainant and the alleged bribe monger. Viewing from any angle, PW.2 cannot be termed as an interested witness. Though there was an improvement in his evidence and even that part of improvement can be excluded from consideration, but his evidence that he witnessed the events in the post-trap especially handing over of the amount by PW.1 to AO had the basis in post-trap. The learned Special Judge by placing reliance on the aforesaid three decisions, branded the evidence of PW.2 as interested but however 44 AVRB,J Crl.A. No.131/2011 he was of the opinion that it was not going to affect the case of prosecution as AO dealt with the tainted amount. This Court is in disagreement with the findings of the learned Special Judge in branding PW.2 as an interested witness.
49. As seen from Ex.P-10 - rough sketch, the vantage position of the accompanying witness i.e., PW.2, Head Constable and the AO was clearly shown. First vantage position was relating to PW.2. Second vantage position was relating to HC-254. Vantage position Nos.3 to 5 were relating to Inspector, Ongole and Inspector, Nellore and DSP, ACB. As seen from the vantage position of PW.2, seat of AO was absolutely visible. There was a straight view from the vantage position of PW.2 and the seat of AO. Contention of appellant that PW.2 had no occasion to observe what happened between AO and PW.1 is not tenable by looking into Ex.P-10 - rough sketch.
50. As this Court already pointed out, prosecution has established that PW.1 had every chance to visit the office of AO on the dates mentioned i.e., 30.06.2005, 02.07.2005 and 15.07.2005. The demand dated 16.07.2005 was interlinked with earlier demands. The reason set forth by AO that because PW.1 fed up with the attitude of the staff of AO for not issuing his duplicate 45 AVRB,J Crl.A. No.131/2011 APGLI bond earlier, he bore grudge against AO is nothing but flimsy. Considering the same, this Court is of the considered view that the evidence of PW.2 corroborates the testimony of PW.1. The fact that AO dealt with the tainted amount further corroborates the testimony of PW.1.
51. Coming to the decision of Bombay High Court in Syed Murtuza (6th supra), it was a case where the prosecution suffers with want of corroboration. The factual scenario therein cannot be made applicable to the present case on hand.
52. It is to be noted that the so called version of AO before the trap laying officer in the post-trap proceedings was that PW.1 voluntarily handed over certain amount to him. The spontaneous version of AO in giving such a statement was with an intention to exculpate himself though such version also contained some inculpatory statement. However, AO did not adhere to such a defence. This Court is judging the guilt of the AO basing on the direct evidence available on record in the form of PW.1 and PW.2 and other circumstances that AO dealt with the tainted amount. There was no basis for the AO to put forth a defence before PW.1 that AO thrust the tainted amount in his left side shirt pocket on account of the previous animosity. It is to be noted that the 46 AVRB,J Crl.A. No.131/2011 conduct of AO after the alleged thrusting theory was not that of a reasonable prudence. It is not his case that he picked up the currency notes of Rs.500/- from the left side shirt pocket and thrown away on the face of PW.1. It is not his case that he picked out the so called thrust amount and holding it with his both hands so as to hand over the same to PW.1. The natural reaction of a person like AO when a person thrust the amount into his left side shirt pocket would be to react immediately by raising hue and cry and to chase that person. PW.1, PW.2 and the trap laying officer had no reason to distort the version of AO. It is not his defence even before PW.1 from the AO that he picked up the thrust amount and tried to handover it to PW.1. So, AO miserably failed to probabilize his defence. His defence suffers with any amount of un-reasonableness and improbabilities. Having regard to the above, the fact that the tainted amount was recovered from the possession of AO warrants this Court to draw a presumption under Section 20 of the PC Act, which runs as follows:
"20. Presumption where public servant accepts gratification other than legal remuneration --
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for 47 AVRB,J Crl.A. No.131/2011 himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
53. The Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)12, presided over by a Constitutional Bench elaborately dealt with the essential ingredients of Sections 7, 13(1)(d) R/w.13(2) and 20 of the PC Act and held that when the 12 (2022) SCC OnLine SC 1724 48 AVRB,J Crl.A. No.131/2011 prosecution has proved the foundational facts, it has the benefit of presumption under Section 20 of the PC Act. In my considered, the prosecution categorically proved the foundational facts as such it has the benefit of presumption under Section 20 of the PC Act. AO failed to prove the contrary. Having regard to the overall facts and circumstances, this Court is of the considered view that the prosecution categorically proved the pendency of official favour as on the date of trap and prior to the trap and further AO demanded PW.1 to pay bribe of Rs.500/- prior to the date of trap and on the date of trap and accepted the said bribe amount. The conduct of AO squarely proves an act of obtainment of pecuniary advantage by corrupt and illegal means. So, in the considered view of this Court, the prosecution has categorically proved the charges under Sections 7 and 13(2) R/w. Section 13(1)(d) of the PC Act beyond reasonable doubt as such the judgment of the learned Special Judge in finding the AO guilty for the aforesaid charges is sustainable under law and facts.
54. It is canvassed in the grounds of Appeal that the sentence imposed against the Appellant/AO is excessive and harsh.
55. Having regard to the overall facts and circumstances, this Court is of the considered view that the sentence of three years 49 AVRB,J Crl.A. No.131/2011 imprisonment imposed against the Appellant/AO, separately, for the charges under Sections 7 and 13(2) R/w. Section 13(1)(d) of the PC Act is somewhat excessive as such it needs to be modified.
56. In the result, the Criminal Appeal is allowed in part modifying the sentence of three years Rigorous Imprisonment imposed against the Appellant/AO for each charge under Section 7 and 13(2) R/w. Section 13(1)(d) of the PC Act to that of two years Rigorous Imprisonment each. The rest of the sentence part of the judgment of the trial Court in C.C. No.28 of 2006, dated 31.01.2011, stands confirmed.
57. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the judgment of this Court along with the trial Court record, if any, to the learned Special Judge for SPE and ACB Cases at Nellore on or before 06.01.2024 and on such certification, the learned Special Judge shall take necessary steps to carry out the remaining sentence imposed against the Appellant/Accused Officer in C.C. No.28 of 2006, dated 31.01.2011, and to report compliance to this Court. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. A copy of this judgment shall also be forwarded to the 50 AVRB,J Crl.A. No.131/2011 Head of the Department of AO for information and further action, if any.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 26.12.2023 Note:Mark L.R. Copy DSH