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2004 DIGILAW 1490 (AP)

G. Yadagiri Reddy v. State

2004-12-10

G.YETHIRAJULU

body2004
G. YETHIRAJULU, J. ( 1 ) THIS appeal is preferred by the accused in C. C. No. 14 of 1992 against the judgment dated 17-6-1997 of the Principal Special Judge for SPE and acs cases, City Civil Court, Hyderabad convicting him for the offence under Sections 7 and 13 (l) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and sentencing him to undergo rigorous imprisonment (R. I.) for three years under each count and also to pay fine of Rs. 3,000/- on each count, in default to suffer Simple imprisonment (S. I.) for six months on each count. ( 2 ) THE factual matrix leading to the filing of appeal is as follows: ( 3 ) THE appellant-accused worked as a police Constable of Ramachandrapuram police Station, Ranga Reddy District from june 1989 to 20-4-1991. While working as such, he approached P. W. I, an employee of b. H. E. L. Canteen and informed him that the Secretary of the B. H. E. L. Co-operative credit Society has lodged a complaint against him alleging that he forged the signatures of D. W. 4 and withdrew a loan of rs. 20,000/- from the said society. The appellant-accused met P. W. I several times in connection with the said complaint and demanded a bribe of Rs. 1,500/- to avoid the arrest. On 20-3-1991 the appellant went to p. W. 1 and asked him to pay the bribe amount on 21-3-1991 at 4 p. m. , by reducing it to rs. 1,000/ -. P. W. 1 lodged a complaint with the Deputy Superintendent of Police, Anti- corruption Bureau, City Range-H, Hyderabad on 21-3-1991 and a case was registered against the appellant and a trap was laid on the same day. The appellant was caught red handed in "capri" Restaurant immediately after taking the bribe amount of rs. 1,000/- in the presence of P. W. 2. The sodium carbonate test conducted to his hands and shirt pocket proved positive. The currency note numbers recovered found tallied with the numbers mentioned in the mediator s report. Subsequently, the charge- sheet was laid after complying with the formalities. ( 4 ) THE prosecution in order to bring home the guilt of the appellant examined p. Ws. 1 to 8 and marked Exs. P. 1 to P. 10 and m. Os. l to 8. Subsequently, the charge- sheet was laid after complying with the formalities. ( 4 ) THE prosecution in order to bring home the guilt of the appellant examined p. Ws. 1 to 8 and marked Exs. P. 1 to P. 10 and m. Os. l to 8. The appellant-accused in support of his defence examined D. Ws. l to 5 and marked Exs. D. l to D. 10. ( 5 ) THE Trial Court after taking into consideration the evidence adduced by both parties found the appellant guilty of the charges and accordingly convicted and sentenced him as mentioned above. ( 6 ) THE prosecution alleged that the appellant was entrusted with the work of securing the presence of P. W. I. He approached P. W. I and demanded bribe of rs. 1,500/- to get the criminal case pending against him dropped by recommending his case to the Sub-Inspector. When P. W. I expressed his inability to pay the amount, he reduced the same to Rs. 1,000/- and demanded payment of the same as a bribe by going to the house of P. W. I on many occasions. P. W. I who has no intention to pay the bribe to the appellant gave Ex. P. l complaint to p. W. 4 and during the process of trap he paid the amount to the appellant, and it was recovered from the appellant. The Sodium carbonate Test conducted to the fingers of the appellant proved positive, therefore, the appellant was rightly convicted by the lower court ( 7 ) THE defence of the appellant is the total denial of demand, acceptance and recovery of bribe amount. ( 8 ) IN the light of the contentions of the respective parties, the point for consideration is: whether the prosecution proved the guilt of the appellant beyond reasonable doubt? point: ( 9 ) IN order to test whether the prosecution established the charges against the appellant I would like to scan the evidence of the prosecution witnesses. ( 10 ) P. W. 1 is the complainant. He worked as a cook in the canteen of Bharat heavy Electricals Limited (BHEL), hyderabad. P. W. 2 is his uncle. D. W. 5 lodged a complaint against him in ramachandrapuram Police Station alleging that P. W. I forged the signature of D. W. 4 for obtaining a loan of Rs. 20,000/- from the bhel Employees Co-operative Credit society. He worked as a cook in the canteen of Bharat heavy Electricals Limited (BHEL), hyderabad. P. W. 2 is his uncle. D. W. 5 lodged a complaint against him in ramachandrapuram Police Station alleging that P. W. I forged the signature of D. W. 4 for obtaining a loan of Rs. 20,000/- from the bhel Employees Co-operative Credit society. According to P. W. I, the appellant who is working as a Police Constable in ramachandrapuram Police Station went to his house and informed him that the sub-Inspector of Police, Ramachandrapuram p. S. required his presence in connection with a report given by the Secretary of the co-operative Credit Society. The appellant informed him that if he pays Rs. 1,500/- towards bribe, he would see that no case is registered against him by recommending his case to the Sub-Inspector. The appellant approached him on four or five occasions by coming to his house and factory repeating his demand for bribe. He informed PW. 2 about the demand made by the appellant. P. W. 2 met the appellant on his behalf on 19-3-1991 and informed that the appellant he has no capacity to pay Rs. 1,500/ -. The appellant reduced the demand to Rs. 1,000/ -. On 20-3-1991 at about 4 p. m. , the appellant came to his house and told him that if he fails to pay the amount, the case would be booked against him. The appellant further informed that he would come on 21-3-1991 at about 4 p. m. , and if he fails to pay the amount, he would arrest and take him to the Police Station. On 21-3-1991 at about 9 a. m. , he went to P. W. 2 and informed him about the arrival of the appellant at 4 p. m. , and his intention to give a report to ACB. He drafted a report and both of them went to acb office at about 11 a. m. , and met the d. S. P. by presenting Ex. P. l complaint. As per the instructions of the D. S. P. and after following the pre-trap procedure, P. W. 2, d. S. P. , mediators and himself reached near his house. P. W. 2 and himself proceeded to his house by walk. At about 4-15 p. m. , the appellant arrived on a scooter and stopped near his house. P. l complaint. As per the instructions of the D. S. P. and after following the pre-trap procedure, P. W. 2, d. S. P. , mediators and himself reached near his house. P. W. 2 and himself proceeded to his house by walk. At about 4-15 p. m. , the appellant arrived on a scooter and stopped near his house. When he and P. W. 2 met him, the appellant enquired whether the bribe amount of Rs. 1,000/- was ready. P. W. 2 informed him that the bribe amount was ready. The appellant took him to Capri hotel and after reaching the said hotel, demanded to pay the amount and he paid the tainted notes. The appellant counted the tainted amount with both the hands and kept the amount in the shirt pocket. P. W. 2 witnessed the acceptance of the money. P. W. 2 went outside and gave signal to the acb party. They came to the dining hall and after disclosing the identity, the trap was laid and the amount was recovered from the appellant. ( 11 ) P. W. 2 stated that the appellant demanded Rs. 1,500/- from P. W. I in connection with a cheating case and on persuation, he got the amount reduced to rs. 1,000/ -. On 21-3-1991 he was informed by P. W. I that the appellant demanded rs. 1,000/- and he was not willing to pay the said amount, and decided to give a report to ACB. Subsequently, P. W. I drafted the report and both of them went to ACB office and submitted the complaint. The dsp, ACB after explaining the procedure regarding the trap made P. W. I to pay the tainted amount on demand by the appellant and accordingly the amount was received by the appellant in Capri Hotel and after counting the notes, the appellant kept the amount in the shirt pocket and later the ACB party reached the spot and recovered the amount. P. W. 2 denied a suggestion that the appellant came to Capri hotel only to take lassi which was offered by him. ( 12 ) P. W. 3, a Deputy Executive engineer of Irrigation Department, who acted as a mediator stated about the recovery of the tainted notes from the pocket of the appellant and a mediators report relating to the post trap transactions. ( 12 ) P. W. 3, a Deputy Executive engineer of Irrigation Department, who acted as a mediator stated about the recovery of the tainted notes from the pocket of the appellant and a mediators report relating to the post trap transactions. He further stated that the Sodium Carbonate Test undertaken to both the hands and fingers of the appellant and the shirt pocket proved positive. It was suggested to this witness that the appellant was asked by the police to remove the shirt at Capri Hotel and took him to Ramachandrapuram P. S. ( 13 ) P. W. 7, the D. S. P. gave corroborative evidence regarding the happenings of the trap and he denied a suggestion that he collected some quantity of cool drink, which was in pink colour, from the table where the appellant and p. Ws. 1 and 2 sat and gained an impression that it is the liquid that was collected by washing the fingers of both hands of the appellant. ( 14 ) THE above evidence placed by the prosecution established the factum of the acb laying trap on the appellant and recovery of the amount from him. The evidence of P. Ws. l and 2 also established that in connection with the arrest of P. W. 1 in a crime pending in Ramachandrapuram police Station the appellant approached him for payment of bribe and the accepted the bribe at Capri Hotel. ( 15 ) THE appellant made the total denial of the offence, and in support of his defence he got examined D. Ws. 1 to 5. ( 16 ) D. W. 1, a Real Estate businessman, stated that on 21-3-1991 at about 4 p. m. , he went to Capri Hotel along with his friends and after sometime they came out of the hotel. The D. S. P. asked the appellant as to whether he took the money. When the appellant stated that he did not receive any money, the D. S. P. checked the pocket of the appellant and found nothing, then the D. S. P. brought two bottles of water and prepared solution and when fingers of the appellant dipped in it the colour was not changed. The persons who accompanied the DSP poured water into the lassi glasses and stated that the colour is changed. The persons who accompanied the DSP poured water into the lassi glasses and stated that the colour is changed. In the meanwhile, the customers gathered there and they picked up a row stating that nothing had happened. Later the D. S. P. and others took the appellant along with the glasses and left the hotel. ( 17 ) D. W. 2, who went to Capri Hotel also stated the same story which was stated by D. W. I. ( 18 ) D. W. 4 spoke about his working as a cook in BHEL canteen, his giving report to the police that he did not obtain any loan from the Co-operative Society of bhel and somebody forged his signature on the loan papers. ( 19 ) D. W. 5, an Accountant of BHEL co-operative Credit Society spoke about the loan transaction of the Co-operative society. ( 20 ) THE evidence of D. Ws. l to 5 is only to contradict the version of the prosecution regarding the acceptance of the amount offered by P. W. I. But, it is not lending any support to the appellant as under what circumstances the tainted notes were recovered from his shirt pocket. The evidence of D. Ws. l to 5 is therefore no way helpful to the appellant to prove his innocence. ( 21 ) ACCORDING to the prosecution, the appellant was entrusted with the duty of securing the presence of P. W. I in a pending crime and in that connection the appellant was demanding money from P. W. I by stating that he would prevail on the Sub-Inspector to close the case. This allegation made by the prosecution got support from a suggestion given on behalf of the appellant to P. W. I that since the Sub-Inspector of ramachandrapuram P. S. directed the appellant to fetch P. W. 1 to the police station, p. W. I apprehended that the appellant is taking side with one Rambabu, therefore, he foisted the case against the appellant. The evidence of P. W. 5 he entrusted the work of arrest of P. W. 1 to the appellant is lending support to the prosecution. The evidence of P. W. 5 he entrusted the work of arrest of P. W. 1 to the appellant is lending support to the prosecution. From the above circumstances, it can be concluded that the appellant being entrusted with the work of apprehension of P. W. I in connection with the crime pending in ramachandrapuram P. S. took advantage of the same, and demanded money from p. W. I by representing that he would tell the Sub-Inspector of Police to close the case. When once the amount is found in the pocket of the appellant and when the sodium Carbonate Test proved positive, the burden is on the appellant to explain under what circumstances the money came into his pocket. In the absence of such explanation and any kind of evidence regarding the money that was recovered from the appellant, the lower Court rightly concluded that the prosecution proved the guilt of the appellant beyond reasonable doubt. ( 22 ) IN Madhukar Bhaskarrao Joshi v. State of Maharashtra, 2001 (1) ALD (Crl.) 77 (SC) = 2001 Crl. LJ 175 at 178 (SC) the Supreme Court while giving a wider meaning to the word "gratification" in a corruption case held that the premise to be established on the facts for drawing the presumption is that there was forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. ( 23 ) IN M. Narsinga Rao v. State of a. P. , 2001 (1) ALD (Crl.) 407 (SC) = (2001) 1 SCC 691 , the Supreme Court while dealing with Section 20 (1) of the Prevention of corruption Act, 1988 held that where receipt of gratification was proved, the Court has, under a legal obligation, to presume that such gratification was accepted as a reward for doing the public duty. ( 24 ) IN State of Andhra Pradesh v. V. Vasudeva Rao, 2003 (2) ALD (Crl.) 1030 (SC) = (2003) 8 Supreme 239 , the Supreme court while dealing with Sections 5 (2) read with 5 (1) (d) and Section 4 (1) of the prevention of Corruption Act, 1947 held as follows: when the sub-section deals with legal presumption, it is to be understood as in terrorem i. e. , in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc. , if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence act. (Para 15) if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under section 4 of the Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative. When the factual position is examined in the background of legal principles culled out from various decisions of this Court, the inevitable conclusion is that the High Court s judgment is indefensible. We set aside the judgment and hold that the accused was rightly convicted under Section 161 IPC and Section 5 (2) read with Section 5 (1) (d) of the Act by the Trial Court. (Paras 26 and 27) ( 25 ) THE appellant made the total denial of the offence, and in support of his defence he got examined D. Ws. 1 to 5. (Paras 26 and 27) ( 25 ) THE appellant made the total denial of the offence, and in support of his defence he got examined D. Ws. 1 to 5. ( 26 ) D. W. 1, a Real Estate businessman, stated that on 21-3-1991 at about 4 p. m. , he went to Capri Hotel along with his friends and after sometime they came out of the hotel. The D. S. P. asked the appellant as to whether he took the money. When the appellant stated that he did not receive any money, the D. S. P. checked the pocket of the appellant and found nothing, then the d. S. P. brought two bottles of water and prepared solution and when fingers of the appellant dipped in it the colour was not changed. The persons who accompanied the DSP poured water into the lassi glasses and stated that the colour is changed. In the meanwhile, the customers gathered there and they picked up a row stating that nothing had happened. Later the D. S. P. and others took the appellant along with the glasses and left the hotel. ( 27 ) D. W. 2, who went to Capri Hotel also stated the same story which was stated by D. W. 1. ( 28 ) D. W. 4 spoke about his working as a cook in BHEL canteen, his giving report to the police that he did not obtain any loan from the Co-operative Society of BHEL and somebody forged his signature on the loan papers. ( 29 ) D. W. 5, an Accountant of BHEL co-operative Credit Society spoke about the loan transaction of the Co-operative Society. ( 30 ) THE evidence of D. Ws. 1 to 5 is not to prove any defence version. It is only to contradict the version of the prosecution regarding the acceptance of the amount offered by P. W. I. But, it is not lending any support to the appellant as to under what circumstances the tainted notes were recovered from the shirt pocket of the appellant. The evidence of D. Ws. l to 5 is therefore no way helpful to the appellant to prove his innocence. The evidence of D. Ws. l to 5 is therefore no way helpful to the appellant to prove his innocence. ( 31 ) ACCORDING to the prosecution, the appellant was entrusted with the duty of securing the presence of P. W. 1 in a pending crime and in that connection the appellant was demanding money from P. W. 1 by stating that he would prevail on the Sub-Inspector to close the case. This allegation made by the prosecution got support from a suggestion given on behalf of the appellant to P. W. I wherein it was suggested to P. W. 1 that since the Sub-Inspector of Ramachandrapuram P. S. directed the appellant to fetch P. W. I to the police station, P. W. I apprehended that the appellant is taking side with one Rambabu, therefore, he foisted the case against the appellant. The evidence of P. W. 5, the sub-Inspector of Police, is also lending support to the prosecution version that he entrusted the work of arrest of P. W. I to the appellant. It was also not suggested to P. W. 5 that since there is enmity against the appellant, he foisted a false case against the appellant. From the above circumstances, it can be concluded that the appellant being entrusted with the work of apprehension of P. W. I in connection with the crime pending in ramachandrapuram Police Station took advantage of the same, and demanded money from P. W. I by representing that he would tell the Sub-Inspector of Police to close the case. When once the amount is found in the pocket of the appellant and when the Sodium carbonate Test proved positive, the burden is on the appellant to explain under what circumstances the money came into his pocket. In the absence of such explanation and any kind of evidence regarding the money that was recovered from the appellant, the lower Court rightly concluded that the prosecution proved the guilt of the appellant beyond reasonable doubt. ( 32 ) THE learned Counsel for the appellant pointed out certain discrepancies in the evidence of the prosecution witnesses which are minor in nature. The prosecution version regarding the date and time of trap is corroborative in nature and the appellant could not create any doubt in the mind of the Court regarding the pre-trap and post-trap proceedings. ( 32 ) THE learned Counsel for the appellant pointed out certain discrepancies in the evidence of the prosecution witnesses which are minor in nature. The prosecution version regarding the date and time of trap is corroborative in nature and the appellant could not create any doubt in the mind of the Court regarding the pre-trap and post-trap proceedings. The plea of the appellant that the post-trap proceedings were written at the Police Station which is at a distance of 50 yards from the hotel cannot be accepted. ( 33 ) SINCE there is a report regarding the nature of liquid that was preserved for testing, the version of the appellant that the left-over lassi from the glasses was collected and kept in a container also cannot be accepted. ( 34 ) THE learned Counsel for the appellant submitted that the prosecution failed to establish the demand and acceptance and that the presence of P. W. 2 in the pretrial proceedings is doubtful, therefore, he requested to give the benefit of doubt to the appellant. He also submitted that the papers that were in the hands of the appellant were not tested for the presence of phenolphthalein powder, therefore, there is a doubt whether the phenolphthalein powder was struck to the fingers of both the hands of the appellant. But, in the light of the evidence given by the prosecution witnesses, the lower Court rightly came to the conclusion that the amount was recovered from the pocket of the appellant and it was collected by the appellant from P. W. I towards bribe to help P. W. 1 in dropping the criminal proceedings. ( 35 ) AFTER carefully going through the evidence and the judgment of the lower court, I do not find any grounds to interfere with the judgment of the lower Court finding the appellant guilty of the charges and convicting him under both the counts. ( 36 ) REGARDING the sentence of imprisonment imposed by the lower Court, the learned Counsel for the appellant submitted that sentence of imprisonment is excessive and therefore requested to consider the case of the appellant in the light of the circumstances stated by him and award reasonable sentence to the appellant. ( 36 ) REGARDING the sentence of imprisonment imposed by the lower Court, the learned Counsel for the appellant submitted that sentence of imprisonment is excessive and therefore requested to consider the case of the appellant in the light of the circumstances stated by him and award reasonable sentence to the appellant. ( 37 ) KEEPING in view the totality of the circumstances, I am of the view that the sentence of rigorous imprisonment for a period of three years imposed by the lower court under each count is excessive and it would meet the ends of justice if the sentence of rigorous imprisonment is reduced to one year under each count, in addition to the fine of Rs. 3,000/- imposed by the lower court under each count. ( 38 ) IN the result, the appeal is allowed in part. The conviction and sentence given by the lower Court against the appellant for the offences under Sections 7 and 13 (l) (d) read with Section 13 (2) of the Prevention of corruption Act, 1988 is confirmed. The sentences of rigorous imprisonment for three (3) years imposed by the lower Court under each count are reduced to the rigorous imprisonment of one year under each count. The fine amount of Rs. 3,000/- imposed by the lower Court on each count remains undisturbed. No costs.