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2003 DIGILAW 456 (AP)

K. Narasimha Chary v. State Of A. P.

2003-03-20

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THIS is an appeal preferred by the accused against the judgment in C. C. No. 8 of 1995 on the file of the Special Judge for SPE and ACB Cases, Nellore. The accused was tried for the offences punishable under Sections 7,11,13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short the Act ). The trial court through its judgment dt. 6. 12. 1996 held the accused guilty of the said offences. Accordingly, it convicted and sentenced him to undergo R. I for one year and to pay a fine of Rs. 1000/- in default to undergo S. I for two months for the offence under Section 7 and to undergo R. I for 18 months and to pay a fine of Rs. 1,500/- in default to undergo S. I for three months for the offence punishable under Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. The sentence of imprisonment was directed to run concurrently. ( 2 ) THE accused was working as Mandal Revenue Inspector in the office of Mandal Revenue Officer, Cuddapah during the year 1994. Pw. 1 held certain landed property within the limits of Cuddapah mandal. He intended to get himself registered as a contractor with the Public Works Department and for that purpose; the property valuation certificate was necessary. He submitted an application (Ex:p. 1) on 1. 3. 1994 to the Mandal Revenue Officer (Pw. 3 ). Pw. 3 put his initial on Ex:p. 1 and handed over the same to Pw. 1 himself and asked him to give it to the accused. The accused in turn asked him to give Ex:p. 1 to the Village Administrative Officer (Pw. 4) and to bring cultivation accounts relating to his lands. Pw. 4 recorded the statements of Pw. 1 and his grand-mother and copies of Adangals as well as the extracts of revenue records being Exs:p. 1 to P. 4 were given to Pw. 1. He in turn handed over the same to the accused on 2. 3. 1994. It is stated that the accused had demanded an amount of Rs. 1000/- for issuance of the property valuation certificate. Pw. 1 expressed his inability to pay the amount and on the next day i. e. on 3. 3. 1994 in the evening Pw. 1. He in turn handed over the same to the accused on 2. 3. 1994. It is stated that the accused had demanded an amount of Rs. 1000/- for issuance of the property valuation certificate. Pw. 1 expressed his inability to pay the amount and on the next day i. e. on 3. 3. 1994 in the evening Pw. 1 met the accused at the office of Pw. 3. There also, the demand was said to have been repeated but the amount was reduced to Rs. 600/ -. Pw. 1 was not willing to pay the said amount and reported the matter to A. C. B. on 5. 3. 1994 at 6. 35 a. . m. The A. C. B. arranged a trap duly following the procedure prescribed therefore. On 5. 3. 1994, Pw. 1 along with trap party reached the office of Pw. 3 at about 12. 30 p. m. While the A. C. B. officials and other witnesses have taken vantage positions and Pw. 1 went inside the office of Pw. 3. The accused was sitting in the chair meant for the Deputy Tahsildar. It is stated that on seeing Pw. 1, the accused verified as to whether the demanded amount was brought. When Pw. 1 answered in positive, he took the amount and kept in his pocket of the pant. Thereafter, he issued the property valuation certificate marked as Ex:p. 8. On noticing the signal given by Pw. 1, the A. C. B. team headed by Pw. 8 entered the office and checked the accused. They treated the hands of the accused with sodium carbonate solution, which yielded pink colour. ( 3 ) THEY claimed to have recovered the amount of Rs. 600/- in the denomination of Rs. 50/- each from the pant pocket of the accused. The number of the notes tallied with those in the panchanama. The right side pocket of the pant was treated with sodium carbonate solution, which also yielded pink colour. In support of its case, the prosecution has examined Pws 1 to 9 and got ( 4 ) MARKED Exs:p. 1 to P. 19 and M. Os. 1 to 9. Pw. 1 is the complainant, Pw. 2 is a mediator to the proceedings undertaken by the A. C. B. , Pw. 3 is the Mandal Revenue Officer, Pw. 4 is the Village Administrative Officer, Pw. 1 to 9. Pw. 1 is the complainant, Pw. 2 is a mediator to the proceedings undertaken by the A. C. B. , Pw. 3 is the Mandal Revenue Officer, Pw. 4 is the Village Administrative Officer, Pw. 5 is the Superintendent in the office of Pw. 3, Pw. 6 is a Section Officer in the Revenue Department in the A. P. Secretariat, Pw. 7 is a witness examined for the purpose of showing the entries as to the dispatch of various proceedings in the office of Pw. 3 and Pws 8 and 9 are the Investigating Officers. Sri. C. Padmanabha Reddy, learned Senior Counsel appearing for the accused submits that the very sanction accorded for the purpose of prosecuting the accused was not proved as required under law and as such there is basic infirmity in the entire prosecution case. According to him, neither the authority who signed the authorization marked as Ex:p. 17 nor any one acquainted with his signature was examined. He submits that Pw. 6 who is the only witness examined for the purpose was not working in the concerned department at the relevant point of time. Coming to the merits, the learned Counsel submits that there was no demand by the accused. It is his contention that Pw. 1 was acquainted with the procedure for obtaining the property valuation certificate and he directly submitted his application to Pw. 3. The valuation of the land was to be certified by Pw. 4 and transmitted to Pw. 3 and certificate was to be given by Pw. 3 himself. Under these circumstances, there was no role to be played by the accused and that Pw. 1 was very much conversant with all the procedure. The learned Counsel submits that the evidence on record discloses that the certificate (Ex:p. 8) was signed by Pw. 3 on 4. 3. 1994 itself and that too at the valuation arrived at by Pw. 4. Therefore, there was hardly no scope for the accused to play any role either as to the quantum of valuation or for that matter the issuance of certificate itself. So far as the trap is concerned, the learned Counsel submits that it was the consistent case of the accused that Pw. 4. Therefore, there was hardly no scope for the accused to play any role either as to the quantum of valuation or for that matter the issuance of certificate itself. So far as the trap is concerned, the learned Counsel submits that it was the consistent case of the accused that Pw. 1 had surreptitiously kept wad of notes under the files and the same was noted by him when it fell down at the time of handling the files for the purpose of issuing the certificate to Pw. 1 and while he was calling Pw. 1, the A. C. B. stepped in. Sri. G. Peda Babu, learned Standing Counsel for the A. C. B. submits that Ex:p. 17 was proved as required in law by examining Pw. 6. According to him, though Pw. 6 did not work in the Revenue Department at the time when Ex:p. 17 was issued, he became acquainted with the signature of the authority by the time he deposed before the court. On merits, the learned Standing Counsel submits that the fact that the accused was not competent authority to issue the certificate becomes insignificant in view of Explanation-D to Section 7 of the Act. He further submits that the accused had a role to play in the issuance of the certificate mostly in the nature of processing it and his conduct was consistent with what was stated by Pw. 1. So far as the trap is concerned, the learned Standing Counsel submits that it is proved beyond all reasonable doubt. Under Section 19 of the Act, sanction by the Appointing Authority is necessary for taking cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act. In this case, the sanction is to be accorded by the State Government. Ex:p. 17 is G. O. Ms. No. 76 dt. 2. 3. 1995 issued by the Government of Andhra Pradesh through the Secretary to Government Revenue (Service-IV) Department. Sanction so accorded needs to be proved before the trial court. The proof of such a document can be through various means. The decided cases are to the effect that the proof of sanction order will be to the same degree as of any document. Sections 45 and 47 of the Evidence Act become relevant in this regard. Sanction so accorded needs to be proved before the trial court. The proof of such a document can be through various means. The decided cases are to the effect that the proof of sanction order will be to the same degree as of any document. Sections 45 and 47 of the Evidence Act become relevant in this regard. ( 5 ) THE best way of proving a document is by examining the author of it. Explanation to Section 47 provides for the other subsidiary modes of proving the document such as by examining a person who has seen the author of the document writing or signing or one who has received the document purported to be written or signed by the author in answer to certain correspondence by such witness or by examining a person to whom, in the ordinary course of business the documents purporting to be written by the author have been habitually submitted to him. The Supreme Court in. . . . . . . . . . . . . . . . . . held that the instances referred to in Explanation to Section 47 are not exhaustive and there can be other similar instances. In. . . . . . . . . . . . . . . . this court held that examination of a Branch Manager to prove the document singed by the Chief General Manager, the sanctioning authority, would be sufficient inasmuch as the Branch Manager is acquainted with the signature of the Chief General Manager during the course of his routine business though not in relation to the proceedings according sanction. Reverting to the facts of the case, the prosecution has examined Pw. 6 to prove Ex:p. 17. His entire evidence in chief and cross is to the following effect: "chief Examination:-I have been working as Section Officer, Revenue Department, A. P. Secretariat, Hyderabad since 1. 5. 1995. Madan Mohan Reddy is the Secretary to the Government. I can identify his signature. Ex:p. 17 is the sanction order signed by him. Cross:-By the time the Secretary signed in Ex:p. 17, I was in G. A. D. I have no personal knowledge in respect of the files verified by the Secretary before filing. " Ex:p. 17 was issued on 2. 3. 1995. As on that day, Pw. 6 was admittedly working in the General Administrative Department. Cross:-By the time the Secretary signed in Ex:p. 17, I was in G. A. D. I have no personal knowledge in respect of the files verified by the Secretary before filing. " Ex:p. 17 was issued on 2. 3. 1995. As on that day, Pw. 6 was admittedly working in the General Administrative Department. He joined the Revenue Department, which accorded sanction only two months later i. e. on 1. 5. 1995. Therefore, Pw. 6 cannot fit into a witness referred to in Explanation to Section 47 of the Evidence Act even if the same is enlarged or extended as held by the Supreme Court. Therefore, it cannot be said that the prosecution has proved the existence of valid sanction. The learned Standing Counsel submits that the utility of the sanction is only for the purpose of taking cognizance and not beyond that. For this purpose, he relies upon the various contingencies provided for under sub-section (3) of Section 19 of the Act. In this regard it needs to be observed that the finding or sentence ordered by the Special Judge shall not be reversed or altered by the court of appeal only on the ground of absence of error, omission or irregularity in the sanction. It cannot be said that the importance of sanction is totally vittled down. The various contingencies provided for under Sub-section (3) of Section 19 of the Act are to the effect that if the accused is not in a position to canvass his contention as to the existence of correctness or otherwise of the sanction order during the course of trial, he cannot be permitted to canvass the same at the stage of appeal. In case the accused is able to establish that the absence of irregularity in the sanction order has resulted in failure of justice, the prohibition contained in sub-section (3) becomes watered down. ( 6 ) THE requirement as to the existence of sanction cannot be given a narrow interpretation namely that once cognizance of an offence is taken, the existence of the sanction becomes irrelevant. In a way, this amounts to invoking hypallage logic if cognizance itself cannot be taken for the absence of sanction. Taking cognizance of an offence by whatever means cannot justify the existence of sanction. In a way, this amounts to invoking hypallage logic if cognizance itself cannot be taken for the absence of sanction. Taking cognizance of an offence by whatever means cannot justify the existence of sanction. In fact and strictly speaking, if there did not exist any valid sanction, it cannot be said that the cognizance was validly taken. Taking of cognizance of an offence by itself cannot cure the defect of the sanction. Coming to the merits of the case, the admitted facts are to the effect that Pw. 1 intended to obtain property valuation certificate and he submitted Ex:p. 1 for the same to Pw. 3 on 1. 3. 1994. Pw. 3 initialed on the same and handed over Ex:p. 1 to Pw. 1 himself to be handed over to the accused. It is also not in dispute that when Pw. 1 brought Ex:p. 1 to the accused, the latter asked him to take it to Pw. 4. Pw. 1 stated in his evidence that at the stage of Pw. 4, all the exercise was undertaken within one day i. e. the statement of himself and his grand-mother were recorded and all the documents marked as Ex:p. 2 to P. 6 were handed over to the accused on the same day i. e. on 2. 3. 1994. These documents together with the valuation certificate were to be transmitted to Pw. 3. It is at this stage, the accused is said to have demanded the amount. The evidence of Pw. 1in this regard is to the following effect: "i handed over Ex:p. 2 to P. 6 to the accused on 2. 3. 1994. Then the accused demanded to pay a bribe of Rs. 1000/- to give property valuation certificate. For which I stated that I am unable to pay that huge amount. On 3. 3. 1994 in the evening I went to the accused at the office of the M. R. O. Cuddapah and he again asked me in respect of my property valuation certificate. For which he reiterated his demand. Again I requested him for my certificate. At last the accused asked me to pay a bribe of Rs. 600/- for giving the valuation certificate. " Neither on 3. 3. 1994 nor on the next day, he has approached Pw. 3 who is competent authority to issue the certificate and to whom Ex:p. 1 was made. On 5. 3. Again I requested him for my certificate. At last the accused asked me to pay a bribe of Rs. 600/- for giving the valuation certificate. " Neither on 3. 3. 1994 nor on the next day, he has approached Pw. 3 who is competent authority to issue the certificate and to whom Ex:p. 1 was made. On 5. 3. 1994, he complained to A. C. B. Ex:p. 8 is the property valuation certificate which was signed by Pw. 3 on 4. 3. 1994 itself. It was issued for the valuation, which was certified by Pw. 4. If, in fact the accused had made any demand for issuance of certificate or to enhance the valuation of the lands, he would not have forwarded the file from his table to Pw. 3 till the amount was paid. Pw. 1 was very much aware of the fact that the authority to issue the certificate was Pw. 3 and the authority to evaluate the property was Pw. 4. This discussion is undertaken in relation to the aspect of demand. It is the settled principle of law that for proceeding under Sections 7 and 13 of the Act, the prosecution should establish the demand and acceptance. ( 7 ) IN cases of such nature, it is difficult to expect witnesses to be present when demands were made. Naturally, the existence of demand has to be inferred from the attendant circumstances. The circumstances referred to above would disclose that it was rather improbable for the accused to have demanded the amount as alleged by Pw. 1. Even where applications are submitted, in the sequence, they will be handed over to officials who are subordinate to the issuing authority and the concerned applicants verify about the progress of the matter with the concerned issuing authorities if there is inordinate delay. The evidence on record in this case discloses that Ex:p. 1 was submitted by Pw. 1 directly to Pw. 3 and it was moved with almost jet speed and the local verification, recording of statements, furnishing of certified copies of revenue record etc. , had taken place within one day. The file reached Pw. 3, in all probability on 3. 3. 1994 and he signed on the next day. Pw. 3 was very much accessible to Pw. 1. If he sensed any delay he could have straight away verified the matter with Pw. 3. , had taken place within one day. The file reached Pw. 3, in all probability on 3. 3. 1994 and he signed on the next day. Pw. 3 was very much accessible to Pw. 1. If he sensed any delay he could have straight away verified the matter with Pw. 3. If there were any hindrances, he could have brought to the notice of Pw. 3 himself. When Pw. 3 received Ex:p. 1 directly from Pw. 1 without any objection, there should not have been any impediment in handing over the Ex:p. 8 to Pw. 1 directly. The accused was neither the issuing authority nor was the outward clerk. He figured somewhere in between. The handing over of Ex:p. 8 by Pw. 3 to the accused appears to be deliberate and planned. Suggestions to Pw. 3 that he was suspended for certain irregularities on earlier occasion, he bore grudge against the accused and wanted to implicate him gains credence in this regard. ( 8 ) IT is true that whenever a trap is successful, the version of the prosecution gains credence. However, the Supreme Court had time and again sounded a note of caution even in respect of cases where the trap has been proved successfully. It was held that circumstances such as the accused officers coming into contact with the tainted notes in the process of pushing the same from table or thwarting the attempts of the complainants to thrust the amount into the hands or pocket need to be taken into account. Mechanical acceptance of trap was held to be prone to result in injustice. ( 9 ) THE accused pleaded that he handed over Ex:p. 8 to Pw. 1 and it was at that time a wad of notes fell from the files. He has also pleaded that he took up the notes from the ground and when he was attempting to return it to Pw. 1 sensing some foul play, the trap party had stepped in. In the circumstances of this nature, it is rather difficult to have any eye witnesses. The sequence of events in such cases take place hardly in seconds. It is in evidence that the A. C. B. officials were stationed hardly within a distance of a few feet from the place of scene of offence. ( 10 ) HAVING regard to the conduct of Pw. 1 in directly approaching Pw. The sequence of events in such cases take place hardly in seconds. It is in evidence that the A. C. B. officials were stationed hardly within a distance of a few feet from the place of scene of offence. ( 10 ) HAVING regard to the conduct of Pw. 1 in directly approaching Pw. 3 for making an application, his being in a position to obtain certified copies of various revenue records from Pw. 4 on the same day and the certificate having been given for the value certified by Pw. 4, it cannot be said that the accused had either demanded or accepted the amount. Once it is evident that Pw. 1 for his own reasons was desperate in implicating the accused, it is not at all difficult for any one to ensure that the hands or parts of the body or apparel of the accused get in contact with the traces of phenolphthalein powder. Another circumstance is that even according to Pw. 8, an amount of Rs. 235/- was recovered from the right side pocket of the accused. If in fact the tainted amount of Rs. 600/- was recovered from the said pocket, in all probability the personal amount of the accused being Rs. 235/- would have come in contact with tainted notes. Examination of that amount would have gone a very long way in establishing the charge against the accused. For their own reasons, the A. C. B. officials did not undertake to chemically test the amount belonging to the accused. ( 11 ) IN view of the facts and circumstances discussed above, this court is not inclined to believe that the appellant/accused had either demanded or received illegal gratification from Pw. 1. Accordingly, the criminal appeal is allowed and the conviction and sentence imposed against the appellant/accused is set aside. The fine, if paid, shall be refunded.