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2002 DIGILAW 599 (AP)

MURALIKONDA v. State Of A. P.

2002-04-24

ELIPE DHARMA RAO

body2002
ELIPE DHARMA RAO, J. ( 1 ) THE sole accused-appellant herein, preferred this Criminalappeal aggrieved of the conviction for the offence under Sections 7 and 13 (1) (d) (i) read with Section 13 (2) of the Prevention of corruption Act, 1988 ( for brevity the Act ) and sentence to suffer rigorous imprisonment for six months and imposition of fine of rs. 500/- in default to suffer simple imprisonment for three months for the former offence and to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for six months for the latter offence passed in CC No. 37 of 1992 on 12-7-1996 by the learned Principal special Judge for SPE and ACB Cases, hyderabad. ( 2 ) THE gravamen of the charge, in narrow compass, is that on 30-1-1991 the father of the complainant, Thakur Jogender singh, approached the appellant who was incharge Executive Engineer, Sathnala medium Irrigation Project, Adilabad District, with an application for issue of registered contract proceedings, as his father T. Ramchander Singh intended to take the irrigation contract, but the accused informed him that the proceedings will be issued in the month of June since the application was made at the fag-end of January, 1991. Thereafter, it is alleged that the complainant and his father made several visits to the appellant; that on 11-7-1991 the appellant is said to have demanded Rs. 500/- as bribe and also did not heed to the request of the complainant to reduce the bribe amount; that since the complainant was not intending to pay the bribe, on 16-7-1991 he approached Deputy Superintendent of police, ACB, Karimnagar at Gudihatnoor, who after due verification, registered a case in Cr. No. 2/acb/knr/91 under Sections 7 and 11 of the Act on 16-7-1991. The intended bribe produced by the complainant was treated with phenolphthalein powder and was handed over to the complainant in the presence of PW3 and another with instructions to pay to the appellant on demand; that on 17-7-1991 the appellant is said to have demanded and accepted rs. 500/- bribe at his office and was caught red-handed. The sodium solution test conducted over the right and left fingers ofthe appellant proved positive and the tainted amount of Rs. 500/- was recovered from the conscious physical possession of the appellant. 500/- bribe at his office and was caught red-handed. The sodium solution test conducted over the right and left fingers ofthe appellant proved positive and the tainted amount of Rs. 500/- was recovered from the conscious physical possession of the appellant. After obtaining the sanction from the appropriate authority, the appellant was charged. ( 3 ) TO substantiate the charge, prosecution examined as may as 8 witnesses and marked Exs. P1 to P23 and MOs. 1 to 8. The plea of the appellant-accused was that the complainant-PW1 gave the amount stating that it was given by DW2, B. Shanker, which was borrowed by him as loan, and on his behalf DWs. 1 to 3 were examined and marked Exs. D1 to D4. ( 4 ) THE learned Judge on appreciation of both oral and documentary evidence found the appellant guilty for the offences charged, convicted and sentenced him as stated supra. ( 5 ) AGGRIEVED of the said conviction and sentence, the appellant preferred this criminal appeal contending inter alia that when the charge sheet shows that the appellant demanded bribe on 11-7-1991 from the complainant at the house of the accused, the learned Judge has erred in accepting the interested testimony of pws. 1 to 8 and giving a total go bye to the evidence of DWs. 1 to 3, that the bribe was demanded at the office on 11-7-1991, more particularly when the appellant was not present in the office on 11-7-1991 and was attending a conference at Nirmal 80 KMs. away from the place of demand, that the court below has erred in discarding the evidence of DW1 and Exs. D1 to D3 which clinchingly prove that the appellant could not have been at his office at 11-00 a. m. , on 11-7-1991 when he was attending conference at Nirmal. It is also contended that the learned Judge has not properly appreciated ex. P14 diary and Ex. P13 log book seized at the time of trap, which show that the appellant left Adilabad at 8. 30 a. m. , and returned at 4. 00 p. m. , that the learned judge has erred in ignoring the laches on the part of prosecution that they have not examined the officers concerned to disprove the plea of alibi set up by the appellant. 30 a. m. , and returned at 4. 00 p. m. , that the learned judge has erred in ignoring the laches on the part of prosecution that they have not examined the officers concerned to disprove the plea of alibi set up by the appellant. It is also contended that when no independent person, who was admittedly present at the time of trap, was examined by the investigation Officer, the learned Judge should not have accepted the evidence of mediator, PW3 and that PW4 could not give reason as to why the dates were altered in the proceedings and in the despatch register and, therefore, sought for setting aside the conviction and sentence recorded against the appellant. ( 6 ) THE contention of the appellant before the Court below was that the complainant gave MO1 money to the appellant in the presence of Mallareddy, a contractor, stating that the said sum was sent by DW2 in repayment of the loan taken from the appellant. PW1 admitted in ex. P9 statement recorded under Section 164 cr. PC statement by the Magistrate that when the complainant went inside, one person came out as such the presence of Mallareddy cannot be denied and this version of PW1 is supported by DW3 who stated that the amount was sent by dw3 in repayment of the loan taken earlier and, therefore, the amount of Rs. 500/- accepted by the appellant is not an illegal gratification. ( 7 ) THE learned Judge negatived this contention of the appellant and observed that taking advantage of the discrepancy arising in Ex. P9, statement of PW1 complainant the appellant developed the theory of presence of Mallareddy. In support of this observation, the learned judge has relied on the evidence of PW1 who stated that when the appellant went inside his room and was talking to his staff members, he waited till every one is cleared and thereafter he went and on demand paid the tainted amount. The learned judge also accepted the explanation of pw1 that in Ex. P9, 164 Cr. PC statement, pw1 stated as Vyakthi (person) and not vyakthulu (persons) and thus doubted the presence of PW3. The learned judge also accepted the explanation of pw1 that in Ex. P9, 164 Cr. PC statement, pw1 stated as Vyakthi (person) and not vyakthulu (persons) and thus doubted the presence of PW3. It is further held by the learned Judge that the appellant did not state to the DSP, PW 7 and the mediator pw3 that the amount sent by DW2 is the loan amount taken from him through pw1 and that DW3 was also present at that time and, therefore, held that the theory set up by the appellant is an after thought. ( 8 ) THE contention of the appellant is that on 11-7-1991 at 11-00 a. m. , he attended the meeting at Nirmal and therefore, the case of the prosecution that he made demand on the said date is false; that when once the demand is false the alleged payment made on 17-7-1991 is mere payment of money without demand and does not satisfy the ingredients to sustain conviction. ( 9 ) EXS. D1 and D2 show that the appellant was at Nirmal in a review meeting on 11-7-1991 at 11-00 a. m. , Ex. D3, minutes of the meeting proves the presence of appellant in the meeting. The learned judge has observed that since the appellant failed to prove his presence at nirmal between 10-00 a. m. , to 12. 00 noon and the distance being only 80 KMs. and since the appellant was provided with a jeep, held that even if the appellant started after 11-00 a. m. , there is every possibility for him to reach Adilabad at 1-00 p. m. , and participate in the meeting and therefore, excluded the plea of alibi set up by the appellant herein. ( 10 ) THE learned Judge further overruled the objection of the appellant that had PW7 made enquiries the correct name of the appellant Murali Konda would have been noticed in Ex. P7, but Ex. P1 complaint shows the name of the appellant as mura Likondaiah, taking the aid of a decision of Supreme Court in Kishan chand Mongol v. State of Rajasthan, 1983 crl. LJ 1 (SC) wherein their Lordships have held that when the designation of the accused officer is mentioned, the absence of the name of accused officer is hardly of any significance. LJ 1 (SC) wherein their Lordships have held that when the designation of the accused officer is mentioned, the absence of the name of accused officer is hardly of any significance. ( 11 ) THUS the learned Judge, negativing all the contentions raised by the appellant, found the appellant guilty for the offences charged and convicted him. ( 12 ) FROM the above narrated facts and circumstances of the case, the learned counsel for the appellant has vehemently contended that in view of the decided principle that when the demand itself is not proved satisfactorily, the trap by itself does not stand inasmuch as the vital parts of the trap consists of demand, part- payment and when any of the vital parts are not proved, the appellant is entitled for an acquittal. Therefore, let us now scrutinise the evidence available on record as to whether the prosecution could prove successfully the demand alleged to have been made on 11-7-1991 and if once the prosecution fails to prove this vital part, then I need not dwell upon the other contentions raised by both the counsel. ( 13 ) IT is the case of the prosecution that the father of PW1 T. Ramachander singh made an application for registration as he wanted to take the contract work of irrigation Department and on 30-1-1991 when he approached the appellant with his son PW2, Jogender Singh and requested for issuance of Registered Contract proceedings, the appellant-Accused Officer informed them that the said proceedings will be issued in the month of June and they made several visits to the appellants in the month of June, 1991 and on 11-7-1991 pw2 approached the appellant at his house and the appellant demanded Rs. 500/- as bribe and also did not heed to the request of the complainant to reduce the bribe amount. As stated either, the complainant paid the tainted amount as a part of the trap that was arranged on 17-7-1991. ( 14 ) THE defence of the appellant is that he was not in Adilabad on 11-7-1991 and he attended review meeting at nirmal in the Office of Superintending engineer for three days and therefore, the question of his demanding the bride amount does not arise. In support of this contention, the accused has adduced the oral evidence of DW1 and got marked Exs. D2 and D3. In support of this contention, the accused has adduced the oral evidence of DW1 and got marked Exs. D2 and D3. It is the evidence of DW1, Superintendent, office of the Superintending Engineer, irrigation, Nirmal, that under Ex. D2 proceedings the meeting was called and ex. D3 are the minutes showing the presence of the appellant. He further stated that the meeting was from 10-00 a. m. , to 6-00 p. m. The cross-examination of the DW1 further discloses that T2 Clerk will record the points discussed in the meeting and the rough note will be prepared by him containing the names of the officers who attended the meeting and the name of the appellant was in the list who attended the meeting. He further stated that any officer who attended the meeting with the permission of the Superintending Engineer may leave the place at the meeting for which they have no record. The contention of the learned Special Prosecutor that there is every possibility for the accused appellant to go late and there is also every possibility of the accused to leave the place of meeting with permission and relying on a decision reported in State of Maharashtra v. Narsing Rao, 1984 Crl. LJ page 4, contended that the burden lies on the accused to show that precisely at what time he was at Nirmal, that the plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of his presence at the place of occurrence. It is no body s case that the appellant took permission and left the meeting and for late attendance of any officer, they have no records. Admittedly, the distance between adilabad and Nirmal is 80 KMs and it takes two hours to cover the said distance. Ex. P13 log book shows that at 8. 30 a. m. , the appellant left Adilabad and proceeded to nirmal and attended the Circle Office meeting. Ex. D4 shows that he the appellant proceeded to Nirmal at 8. 30 a. m. . and attended the Circle Office and returned at 9. 00 p. m. Ex. D13 was seized at the time of trap which fact eliminates the scope of any correction. In absence of examination of any staff member of the Circle Office, nirmal, Ex. P13 assumes greater importance. 30 a. m. . and attended the Circle Office and returned at 9. 00 p. m. Ex. D13 was seized at the time of trap which fact eliminates the scope of any correction. In absence of examination of any staff member of the Circle Office, nirmal, Ex. P13 assumes greater importance. Therefore, non-mentioning of the time as to when the appellant has attended the review meeting and when he left, is not fatal to the defence of the accused. In view of these facts and circumstances of the case, the ratio laid down by the supreme Court in G. V. Nanjundaiah v. State (Delhi Administration) ( 1988 SCC 77 ) that when the prosecution allegation of demand of bribe was false, the allegation of payment of bribe and the recovery of the same from the accused must be viewed with suspicion. ( 15 ) THE version of the prosecution is that on 11-7-1991 the accused demanded the bribe amount at his residence, but the evidence of PW1 shows that the bribe was demanded at 11-00 a. m. , in the office. It is not clear from the evidence of pw1 as to the presence of one person or two persons when he paid the amount to the accused - appellant on 17-7-1991. In view of the other inconsistencies and lapses on the part of the Investigating Officer, the learned Trial Judge should have accepted the documentary evidence Exs. D1 to D3 and Ex. P13, coupled with the oral evidence of DW1. Nothing is suggested to DW1 as to why he should support the appellant. It is a settled principle of law that where two views are equally possible, the view which favours the accused-appellant has to be taken. When the appellant has set up the plea of alibi and has shown relevant circumstances, it is for the prosecution to prove precisely his presence at the place of offence, and I am of the considered view that the prosecution has failed to prove the presence of the accused-appellant at the place of offence on the crucial date. When the appellant has set up the plea of alibi and has shown relevant circumstances, it is for the prosecution to prove precisely his presence at the place of offence, and I am of the considered view that the prosecution has failed to prove the presence of the accused-appellant at the place of offence on the crucial date. When once it is established that the accused was not present on the alleged date of demand, the question of payment of bribe by PW1 on 17-7-1991 under the trap cannot be accepted and the explanation of the appellant accused that PW1 gave mo1 cash to him in the presence of Malla reddy, DW3, stating that the said sum was sent by DW2 Shanker in repayment of the loan taken from him, seems more plausible. This defence of the accused is also supported by 164 Cr. PC statement recorded under Ex. P9 for the reason that no one will pay the bribe in the presence of other unconnected persons. ( 16 ) THEREFORE, for all these reasons, I am of the considered view that there are several laches on the part of the prosecution, which render the version of the prosecution unbelievable. ( 17 ) THAT apart, after the submission of the application for the Registered Contract proceedings for the fist time, as described above, PW1, who is aged 68 years, has not submitted any other application since 1991 for the subsequent years, for the reasons best known to him and unknown to the court. In view of these circumstances, the version of the accused-appellant that at the behest of PWs. 4 to 6, who are after PW1, the complaint Ex. P7 was lodged. ( 18 ) THE evidence of PWs. 4, 5 and 6 also does not inspire confidence of the court when they say that at the instructions of the appellant-accused they have carried out corrections, for the reasons which will be presently discussed. It is the evidence of PW4 that on 17-7-1991 the accused-appellant called him and asked him to give the original proceedings to him and he replied that in view of G. O. Ms. No. 521 dated 10-12-1984 the contractorship has to be registered in the months of january and June. It is the evidence of PW4 that on 17-7-1991 the accused-appellant called him and asked him to give the original proceedings to him and he replied that in view of G. O. Ms. No. 521 dated 10-12-1984 the contractorship has to be registered in the months of january and June. Then the accused asked him to alter the date to 28-6-1991 and gave the same to PW1 and he accordingly changed the date of the proceedings and gave a copy to PW1. In the cross- examination this witness, in one breath admitted that after it is given for despatch the EE has nothing to do with it and in the next breath he says that he stated before the ACB that on the same day i. e. , on 28-6-1991 the accused-appellant approved the draft proceedings and requested him to keep it pending till his further orders for despatch. Nothing is brought on record as to why the accused-appellant having approved the draft proceedings has instructed PW4 to keep it pending. This is contra to the own admission of PW4 that after the proceedings are given for desptach the EE has nothing to do with it. That apart, PW6 admitted that he stated before the ACB authorities that PW4 came to him and took the Outward Register stating the ACB people wanted it. He also admitted that he did not state before that acb that the accused-appellant wanted the Outward Register. Therefore, for these admissions and inconsistencies, the evidence of PWs. 4 to 6 cannot be given very much credence. ( 19 ) FURTHER, another important aspect in this case is that though the complaint was made by PW1 to PW7 on 16-7-1991 at about 4-00 p. m. , but according to the evidence of PW7, after obtaining the permission of the Director-General, ACB, it was registered on 17-7-1991 at 9. 00, a. m. , column No. 4 of Ex. P22, as to the steps taken regarding investigation, explanation of delay in recording information, shows that the accused noted in Column No. 2 demanded and accepted an amount of rs. 500/- from the complainant for showing official favour on issuing proceedings as registered Contractor. If this statement is recorded while registering Ex. P22 on 17-7-1991 at 9. 00 hours, as per the prosecution the drafting of mediators report was completed by 6-00 p. m. , on 17-7-1991. 500/- from the complainant for showing official favour on issuing proceedings as registered Contractor. If this statement is recorded while registering Ex. P22 on 17-7-1991 at 9. 00 hours, as per the prosecution the drafting of mediators report was completed by 6-00 p. m. , on 17-7-1991. Thus the endorsement in Column No. 4 when the FIR was registered at 9. 00 a. m. , the question of the accused-appellant accepted an amount of Rs. 500/- from the complainant for showing official favour in issuing the registered contractor proceedings does not arise. Therefore, the contention of the learned senior Counsel for the appellant that either FIR was registered after completing the trap or having pre-planned and pre-determined, they have conducted the trap. Therefore, it can be presumed that the FIR was registered after conducting the trap. ( 20 ) THAT apart, the evidence of PW7 in chief, shows that after obtaining the permission of the superior officer he registered the case on 17-7-1991, but in the cross-examination, he admitted that he has not obtained any instructions from his superior officer to register the case. It is also worth mentioning that the accused- appellant was not supplied with the second mediators report, Ex. P11 which is supported by PW7 when he admitted the suggestion that he did not give a copy of Ex. P11 to the accused. Ex. P11 also does not show any acknowledgment of the accused. No explanation is forthcoming from the prosecution as to why there was a lapse on the part of PW7. In those circumstances the suggestion that Ex. P11 is fabricated cannot be ruled out totally. ( 21 ) THE preponderance of probabilities in view of the inconsistent evidence of the prosecution witnesses and the rebuttal evidence of DW1 coupled with the documents Exs. D1 to D3 and Exs. P13 and 14, irresistibly lead to the conclusion that the accused-appellant has attended the meeting on 11-7-1991 and thus eliminates the possibility of demanding the bribe amount for issuance of Registered Contractor proceedings to PW1 s father. ( 22 ) IN view of the above findings arrived at by me, the other contentions and legal submissions made by both the Counsel, need not be gone into. ( 23 ) THE findings of the learned trial Judge are based on surmises and conjectures and are not supported by clinching and satisfactory evidence. ( 22 ) IN view of the above findings arrived at by me, the other contentions and legal submissions made by both the Counsel, need not be gone into. ( 23 ) THE findings of the learned trial Judge are based on surmises and conjectures and are not supported by clinching and satisfactory evidence. As stated earlier, when two views are equally possible, it is the view that favours the accused has to be adopted. Therefore, in view of the facts and circumstances of the case, I strongly believe that the prosecution failed to prove beyond reasonable doubt the aspect of demand of Rs. 500/- on two occasions i. e. , on 11-7-1991 and 17-7-1991, for showing official favour to the father of pw1, by adducing cogent and convincing evidence. ( 24 ) FOR all these reasons, I am of the considered view that the conviction and sentence recorded by the Court below cannot be sustained. The criminal appeal is accordingly allowed setting aside conviction and sentence recorded by the court below against the appellant. The fine amount if paid by the appellant shall be refunded.