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Andhra High Court · body

2005 DIGILAW 167 (AP)

C. Sivakumar Reddy v. State Of A. P.

2005-02-22

V.ESWARAIAH

body2005
V. ESWARAIAH, J. ( 1 ) THE appellant herein is the accused in C. C. No. 5 of 1995 on the file of the Special Judge for SPE and acb Cases, Nellore. He was convicted by the judgment dated 5-12-1997 for the offence punishable under Section 7 of the prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-, in default to suffer simple imprisonment for two months. He was acquitted of the charges under Section 13 (1) (d) read with Section 13 (2) of the Prevention of corruption Act. ( 2 ) DURING the pendency of this appeal, the appellant-accused died and his son being his only legal representative was brought on record as per the orders of this Court dated 10-12-2001 in Criminal miscellaneous Petition No. 18162 of 2001, permitting him to continue the appeal. ( 3 ) THE accused worked as Village administrative Officer of Chittathur village of Thottambedu Mandal, Chittoor District from 25-3-1992 to 24-2-1994. The charge against the accused is that on 1-12-1993 B. Chenchu Ratnam Naidu-PW1, a resident of Karakollu hamlet of Chittathur village applied to the Mandal Revenue Officer, thottambedu for assigning Kalva Poramboke under lease patta. As there was no action on the said application, PW. 1 submitted another application for issuing lease patta on 24-1-1994 addressed to the Mandal revenue Officer, Thottambedu along with the statements of Meti Ryoths of his village and Gram Panchayat Resolution. About 10 days prior to 5-2-1994, PW1 met the accused at Chittathur Village and enquired about the lease patta and handed over one more set of statements of Meti Ryoths and gram Panchayat resolution copy. After receiving the above records, the accused demanded a bribe of Rs. 1,000/- for getting the work done, but PW1 expressed his inability to pay the demanded bribe amount and went to his village. Again on 5-2-1994 morning at 6. 00 a. m. , PW. 1 went to the house of the accused and enquired about the lease patta. The accused reiterated the demand of bribe amount and instructed PW1 to come to the M. R. O. , Office on 7-2-1994 with the demanded bribe amount to recommend his case to the Mandal Revenue officer for issuing lease patta of one acre kalva Poramboke. PW1 was not willing to pay the demanded bribe amount to the accused. The accused reiterated the demand of bribe amount and instructed PW1 to come to the M. R. O. , Office on 7-2-1994 with the demanded bribe amount to recommend his case to the Mandal Revenue officer for issuing lease patta of one acre kalva Poramboke. PW1 was not willing to pay the demanded bribe amount to the accused. Therefore, on 5-2-1994 he made a report before the Deputy Superintendent of police, And Corruption Bureau (DSP ACB) pw13. On 7-2-1994, PW1 met the accused at Agricultural Market Committee Check post near Thottambedu MRO Office and paid the demanded bribe amount. When the accused received the bribe amount with his right hand and kept in his shirt left chest pocket, he was trapped as there was a demand and acceptance of gratification other than legal remuneration by the accused from PW1. ( 4 ) THE charge against the accused is that he being a public servant, on 7-2-1994 accepted Rs. 1,000/- from PW1 for himself in pursuance of his previous demand on 5-2-1994 and also 10 days prior to 5-2-1994 towards gratification for doing official favour in exercise of his official function in favour of PW1, which is an offence punishable under Section 7 of Prevention of Corruption act. The said demand and acceptance of gratification other than legal remuneration by corrupt means is also an offence of criminal misconduct punishable under section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act. ( 5 ) TO prove the said charges, the complainant B. Chenchu Ratnam Naidu is examined as PW1, one mediator to the trap is examined as PW2 and the Investigating officer is examined as PW13. The Mandal revenue Officers who worked at the relevant point of time are examined as PWs. 7, 9 and 10. Ex. P1 is the application filed by PW1 on 24-1-1994 and the report given to the DSP acb. , dated 5-2-1994 is Ex. P6. The file relating to the grant of lease patta in respect of Sy. No. 277 situated at Chittathur Village is marked as Ex. D13. ( 6 ) IT is the case of the prosecution that the accused is a Village Administrative officer of Chittathur Village and PW1 is an agriculturist of Karakollu hamlet of chittathur Village and he is in occupation of one acre Kalva Poramboke land in sy. No. 277 situated at Chittathur Village is marked as Ex. D13. ( 6 ) IT is the case of the prosecution that the accused is a Village Administrative officer of Chittathur Village and PW1 is an agriculturist of Karakollu hamlet of chittathur Village and he is in occupation of one acre Kalva Poramboke land in sy. No. 277 situated at Chittathur Village from 20 years and cultivating the said land. He submitted an application to the Mandal revenue Officer, Thottambedu for issuance of lease patta on 1-12-1993 and also on 24-1-1994 enclosing resolution of the Gram panchayat and statements of Meti Ryoths and in that connection, he met the accused and asked him about the lease patta. In that connection, the accused asked him to get the resolution of the Gram Panchayat as well as the statements of Meti Ryoths along with Rs. 1,000/- towards bribe for attending the work of PW1. As PW1 was not inclined to give the said money, he made a report. ( 7 ) THE question that arises for consideration is whether the accused demanded and accepted the bribe amount from PW1 for doing official act. ( 8 ) IF any public servant accepts gratification other than the legal remuneration in respect of an official act is punishable under Section 7 of the Prevention of corruption Act. Under Section 20 of the act, there is a presumption where the public servant accepts gratification other than the legal remuneration, where in any trial of an offence punishable under section 7 that an accused person has accepted any gratification other than the legal remuneration, it shall be presumed, unless contrary is provided, that he accepted the gratification. ( 9 ) ADMITTEDLY, there was no application filed by PW1 on 1-12-1993 for grant of lease patta of one acre of land in sy. No. 277 situated at Chittathur Village. The only application filed by PW1 is Ex. P3, dated 24-1-1994 enclosing copy of the statements of Meti Ryoths and copy of resolution of the Gram Panchayat. As per the procedure, whenever an application is filed before the Mandal Revenue Officer, the Mandal Revenue Officer will call for a report from the Village Administrative officer and depending upon the report, lease patta will be granted. P3, dated 24-1-1994 enclosing copy of the statements of Meti Ryoths and copy of resolution of the Gram Panchayat. As per the procedure, whenever an application is filed before the Mandal Revenue Officer, the Mandal Revenue Officer will call for a report from the Village Administrative officer and depending upon the report, lease patta will be granted. Thus, it is the case of the prosecution that to recommend the case of PW1 for grant of lease patta in respect of Kalva Poramboke, the accused demanded a sum of Rs. 1,000/- and accepted the same. ( 10 ) IT is the case of the accused that he himself has been making applications before the District Collector under Exs. Dl and D4 dated 31-5-1993 and 24-12-1993 about the enmity between him and the sarpanch Rajagopal Reddy and PW1. In his application dated 31-5-1993, it is stated that some persons are threatening him to file illegal complaints against him alleging that he is demanding money for grant of patta. In the application dated 24-1-1994, it is clearly mentioned that some ryoths are cultivating kalva Poramboke land situated at Chittathur village and he objected them not to grow any crop in the said land. Then the sarpanch Rajagopal Reddy instigated them to make certain untenable allegations against the accused by blaming that he is demanding money. It is particularly stated in the said complaint dated 24-12-1993 that pw1 Chenchu Ratnam Naidu requested for grant of patta in respect of Kalva Poramboke land situated in Sy. No. 277. Kalva Poramboke land cannot be given on lease and no patta can be granted in respect of the same. Neither the village administrative officer nor the m. R. O. , have got any powers to grant lease patta. On the other hand, PW1 is pattadar of ac. 8. 45 cents of land and therefore, he informed PW1 that he is not entitled for grant of lease patta. The said Sarpanch rajagopal Reddy also filed an application for the post of Village Administrative officer, but he could not get the said post, against which he filed an appeal and said rajagopal Reddy making all attempts to succeed in the appeal. ( 11 ) THE accused has been making complaints on 31-5-1993 and a specific complainant has been made on 24-12-1993, which is marked as Ex. D4 in which he made specific allegations against PW1 and sarpanch Rajagopal Reddy. ( 11 ) THE accused has been making complaints on 31-5-1993 and a specific complainant has been made on 24-12-1993, which is marked as Ex. D4 in which he made specific allegations against PW1 and sarpanch Rajagopal Reddy. PW1 also admitted that he belonged to the group of rajagopal Reddy-Ex-Satpanch and rajagopal Reddy could not get the post of Village Administrative Officer and his appeal is pending. The accused having visualized the trouble that may be created by rajagopal Reddy, he himself has been making reports before the District Collector. In this connection, it is pertinent to note that certain complaints have been made against the accused which is evident from the file relating to PWs. 12 and 13. In that connection, the Mandal Revenue Officer conducted an enquiry and submitted a report to the District Collector, Chittoor by letter Dis. No. 291/93, dated 24-4-1993 stating that the allegations levelled against the accused are false and the complainants have not confirmed the contents of the allegations and stated that all the allegations made in the complaints are false and accordingly he submitted a report stating that no action need to be taken against the accused. ( 12 ) AS per the evidence of the prosecution witnesses and first and second mediators reports, the trap party went to the Mandal Revenue Office and one of the mediator and the Investigating Officer pw13 saw when PW1 went to the office of the M. R. O. , and where, the accused turned up and they both went towards the agricultural Market Committee Check post, Thottambedu and saw them from 200 metres away while stretching hands by pw1 and the accused after receiving the money from PW1, kept in his left shirt pocket and that they went there and found money in the left shirt pocket of the accused. It is stated that the accused received money with his right hand and kept it in his left shirt pocket. The accused was taken to the nearest Police Station, where second mediator report was drafted after conducting phenolphthalein test of the currency notes as well as the fingers of his both hands. The phenolphthalein test proved positive as he touched the tainted money with his right hand fingers and also touched the currency notes with left hand fingers and he kept it in his left side shirt pocket. The phenolphthalein test proved positive as he touched the tainted money with his right hand fingers and also touched the currency notes with left hand fingers and he kept it in his left side shirt pocket. Therefore, it is the case of the prosecution that the accused accepted the bribe amount. ( 13 ) I have perused the relevant records and the evidence and also heard the elaborate arguments adduced by both the learned Counsel appearing for the Anti- corruption Bureau as well as the accused. Admittedly, there is enmity between the accused and Sarpanch Rajagopal Reddy who also made an attempt to get the post of village Administrative Officer, but he could not succeed and he filed an appeal there is no dispute that PW1 belong to the group of Sarpanch Rajagopal Reddy. There are complaints and counter complaints against each other. According to PW1, rajagopal Reddy was making every attempt to some how implicate the accused in one or other case. Admittedly, PW1 is having Ac. 8-45 cents of land and according to the evidence of the Mandal Revenue officer, PW1 is not at all entitled to any lease patta in respect of Kalva Poramboke land. Even assuming that PW1 is in uninterrupted possession of one acre of land in Sy. No. 277 Kalva Poramboke, he is not entitled for any patta as he is pattedar of ac. 8-45 cents of land and is not a small farmer and there is a prohibition of patta in respect of Kalva Poramboke. Even prior to the application filed by PW1, the accused officer filed an application on 24-12-1993 about the specific case of PW1 stating that pw1 is not at all entitled to any patta. Neither he nor the Mandal Revenue Officer got any authority to grant patta in respect of Kalva Poramboke land situated in sy. No. 277. There is no any other evidence to show that PW1 gave any application to the accused. According to PW. 1, the accused asked him to get the Gram Panchayat resolution copy and statements of Meti ryoths. The copy of Gram Panchayat resolution and statements of Meti Ryoths were filed along with the application of pw1 dated 24-1-1994 before the Mandal revenue Officer and no copy of them were given to the accused. According to PW. 1, the accused asked him to get the Gram Panchayat resolution copy and statements of Meti ryoths. The copy of Gram Panchayat resolution and statements of Meti Ryoths were filed along with the application of pw1 dated 24-1-1994 before the Mandal revenue Officer and no copy of them were given to the accused. There is no evidence to show that an application has been filed on 1-12-1993 and the only application available is dated 24-1-1994 i. e. , one month after filing of an application by the accused about the mischief that is going to be played against him. It is not the case of any of the officers that the accused officer is entitled to do any official favour. Merely because, the M. R. O. , stated that any application filed for grant of patta, remarks will be called from the Village administrative Officer, it cannot be said that the Village Administrative Officer is entitled to do any official favour or dis-favour. The village Administrative Officer who is the accused in the instant case has filed a complaint before the District Collector, stating that neither he nor the M. R. O. , is entitled to do anything to grant patta in respect of Kalva Poramboke land situated in Sy. No. 277 in favour of PW1. If that be so, it is not possible to believe the version of the prosecution that the accused officer had demanded bribe amount from PW1. ( 14 ) EVEN the trap proceedings goes to show that PW1 went to the office of the Mandal Revenue Office. There, he found the accused, but the accused did not accept bribe in the M. R. O. , Office. The accused went away from the M. R. O. , office and was going towards Agricultural market Committee Check Post. It is the evidence of the mediator PW2 and D. S. P. PW13 that from 200 metres away, they were able to saw stretching of hands by the accused and PW1. But, it is the case of the accused that money was thrusted into his pocket and he never demanded and accepted the bribe. Even the accused officer was not subjected to any test at the spot and he was taken to the Police Station and at the Police Station only all the formalities of phenolphthalein tests were conducted. But, it is the case of the accused that money was thrusted into his pocket and he never demanded and accepted the bribe. Even the accused officer was not subjected to any test at the spot and he was taken to the Police Station and at the Police Station only all the formalities of phenolphthalein tests were conducted. There is no explanation by the prosecution that as to why the left hand fingers of the accused were found positive and there is no allegation that he touched the tainted money with left hand fingers. Therefore, this aspect also creates doubt about the method and manner in which the Anti Corruption bureau trapped the accused officer. In the instant case, the complaint made against the accused was enquired and was found baseless and the accused himself made a complaint against the fowl play that is going to be played against him by his rival candidate Rajagopal Reddy who was not successful to get the post of Village administrative Officer and an appeal is pending and to succeed in the appeal, he has been making untenable complaints against him. The accused was not at all competent or empowered either to recommend or to do any act for grant of lease in respect of Kalva Poramboke and even according to the revenue authorities, PW1 is not entitled to get Kalva Poramboke as he was pattedar of Ac. 8-45 cents and he is not a small farmer. Therefore, it is difficult to believe that the accused demanded and accepted the bribe. ( 15 ) THE careful perusal of the entire record goes to show that because of rivalry between the two groups and at the instance of Rajagopal Reddy only, PW1 made a complaint before the A. C. B. , and the A. C. B. , authorities also without any proper enquiry about the conduct and attitude of the accused, laid a trap. Though tainted money was recovered from the accused, I am of the view that the accused did not accept the said money and the explanation of the accused appears to be true. ( 16 ) SRI Ravi Kiran Rao, learned counsel appearing for the Anti Corruption bureau submitted that in the instant case, it cannot be said that the accused has not accepted the money and the money was thrusted by PW1. ( 16 ) SRI Ravi Kiran Rao, learned counsel appearing for the Anti Corruption bureau submitted that in the instant case, it cannot be said that the accused has not accepted the money and the money was thrusted by PW1. In view of the presumption available in favour of the prosecution, it can be presumed that the accused accepted the bribe and in support of his contention, he relied on a judgment of the Apex Court in the case of C. K, Damodaran Nair v, government of India, 1997 (1) ALD (Crl.) 508 (SC) = AIR 1997 SC 551 . In the said case, no doubt, a plea was taken by the accused stating that money was thrusted without his demand, but in the said case, the evidence goes to show that the accused had earlier demanded the bribe to exempt their hospital from the operation of the employees Provident Fund Act and the said demand was believed by the Courts as the evidence on record corroborated by the fact of acceptance of money by the accused subsequently. Therefore, the Apex court held that there is a demand and acceptance, which is corroborated by number of witnesses. But, in the instant case, admittedly, there is enmity between the accused and the Sarpanch, who is supporting pw1 and the accused himself made a complaint to the District Collector that PW1 is not entitled to any patta and he had anapprehension that the Ex-Sarpanch is bent upon to file one or other case against him. Admittedly, the accused is not competent to grant any patta and PW1 is not entitled to any patta of Kalva Poramboke and he is a pattedar of Ac. 8-45 cents. Therefore, I am of the view that the said case has no relevance to the facts of the present case. ( 17 ) ON the other hand, Sri C. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the accused submits that merely because money was recovered from the accused, it cannot be said that the accused demanded and accepted bribe. In support of his contention, he relied on a judgment of the Apex Court in the case of g. V. Nanjundaiah v. State (Delhi administration), AIR 1987 SC 2402 . It is just and proper to extract the relevant Paras 25 to 28:"25. In support of his contention, he relied on a judgment of the Apex Court in the case of g. V. Nanjundaiah v. State (Delhi administration), AIR 1987 SC 2402 . It is just and proper to extract the relevant Paras 25 to 28:"25. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion. 26. In the instant case, the foundation of the prosecution case of the demand made by the appellant for bribe has, as observed already, been shaken to a great extent. In any event, it casts a grave doubt on the subsequent event that was alleged to have taken place in the matter of giving of bribe to the appellant and recovery of the bribe money from him coupled with the unusual behaviour of the contractor in purchasing sweets and fruits for the appellant on the plea that it would justify the presence of verma at the time of giving of bribe to the appellant. 27. In our opinion, therefore, the prosecution has not been able to prove the guilt of the appellant beyond all doubts. The appellant was found by the learned Special Judge seems to be honest and his service record shows that he was an officer or integrity throughout his career. The learned Special judge seems to have accepted the statements of the appellant that he has no immovable or movable property. His wife and children have no Bank account nor have they any property in their names. His insurance is also not more than Rs. 30,000/- and his Bank balance is less than Rs. 1,000/ -. For the defence of the case he had borrowed Rs. 6,000/- from his GPF Account. He has a wife and three minor children to support and there is no other source of income for the subsistence of the family. His insurance is also not more than Rs. 30,000/- and his Bank balance is less than Rs. 1,000/ -. For the defence of the case he had borrowed Rs. 6,000/- from his GPF Account. He has a wife and three minor children to support and there is no other source of income for the subsistence of the family. The above statement of the appellant has been recorded by the learned Special Judge in considering the sentence to be imposed on the appellant. 28. After a careful consideration of the evidence adduced on behalf of the prosecution, the statement of the appellant under Section 311 Cr. P. C. , and the submissions made on behalf of the parties, we are of the view that the prosecution has failed to prove the guilt of the appellant. " ( 18 ) IN the instant case, it is not possible to believe the version of the prosecution. More so when there are complaints that have been filed against each other and the accused himself apprehending that the sarpanch of the village Rajagopal Reddy was making attempts to implicate him in one or other case and he himself filed a complaint before the District Collector about non granting of patta of Kalva Poramboke in respect of Sy. No. 277, it cannot be said that the accused demanded and accepted bribe for doing official favour. The prosecution has not stated anything as to what are the duties and functions to do official favour or to do dis-favour or his duty of action to be attended for grant of patta to PW1. If the accused is not at all competent to do any act, it cannot be said that he demanded and accepted the bribe. In view of the peculiar circumstances of the case and the defence taken by the accused, the prosecution is not at all able to prove the guilt of the accused beyond all reasonable doubt. ( 19 ) THE question that arises for consideration is whether the explanation submitted by the accused in his 313 Cr. P. C, examination that he has no power at all to grant lease patta in respect of Kalva poramboke or other Government lands or there is no scope for him to demand bribe from PW1 for granting lease. ( 20 ) ADMITTEDLY, there was previous enmity between the accused and Rajagopal reddy. P. C, examination that he has no power at all to grant lease patta in respect of Kalva poramboke or other Government lands or there is no scope for him to demand bribe from PW1 for granting lease. ( 20 ) ADMITTEDLY, there was previous enmity between the accused and Rajagopal reddy. PW1 belongs to the group of rajagopal Reddy and because of that enmity, pw1 gave a false complaint against him to acb and the recovery of money from his pocket was not the amount demanded and accepted by him, but it was forcibly thrusted by PW1 into his pocket in order to implicate him in the case, though he has not demanded and accepted the amount appears to be true and correct. Therefore, it cannot be said that the general presumption available in favour of the prosecution is not rebutted in the instant case. I am of the opinion that the presumption was rebutted by the accused and the plea of the accused that PW1 thrusted the currency notes into his pocket and that he did not demand any bribe amount appears to be natural. But, the trial Court without any proper appreciation of the said explanation, dis-believed the same, though there is no evidence about the official functions and duties of the accused for doing any favour. There is no evidence on record to show that the said explanation was furnished to the accused for his report. There is no record to show that the accused has withheld any papers without doing any act. Therefore, I am of the view that there is nothing on record to show that the accused is involved in any of the acts for recommending or not recommend for grant of lease in respect of Kalva Poramboke in favour of PW1. Therefore, it cannot be said that the accused has demanded and accepted the bribe amount, which was alleged to be thrusted in his pocket. I am of the view that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. Therefore, the accused is entitled for acquittal. ( 21 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence imposed by the Court below is set aside and the fine amount of Rs. 2,000/- paid by the accused is liable to be refunded to the appellant herein.