Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 530 (AP)

Sudershan Pareek v. State of A. P.

2008-07-17

GOPALA KRISHNA TAMADA

body2008
JUDGMENT Appellant was tried by the Special Judge for C.B.I. cases at Hyderabad in C.C.No.2 of 1999 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act'). On trial, the trial Court found the appellant guilty of both the offences and accordingly sentenced him to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for one month for the offence under Section 7 of the Act; and further sentenced him to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.3,000/- in default to suffer simple imprisonment for one month for the offence under Section 13(1)(d) read with Section 13(2) of the Act. 2. The case of the prosecution as per the charge sheet and the evidence let in during the course of trial is as follows: (i) One P. Kamalesh Kumar, who was examined, as PW-1 is a contractor and in the year 1997 he was entrusted with the contract work of installing security grill over open well. The final bill for the said contract work was estimated at Rs.3,04,000/- and before payment of the said amount 10% shall be retained as security deposit and the same would be returned after six months. Further, the said security deposit would be released only on production of labour Clearance Certificate. As the said security deposit was lying with the department and PW-1 had to produce labour Clearance Certificate obtained from a competent labour Officer, he approached the appellant on 16-08-1998 and requested him to issue necessary labour Clearance Certificate. It is alleged that the appellant demanded an amount of Rs.500/- for issuance of labour Clearance Certificate and as PW-1 was not agreeable for payment of the said bribe amount approached the Superintendent of Police, C.B.I. and lodged a report on 17-08-1998 bringing out the alleged demand. The said report was marked as EX.P-1. It is also alleged that a micro cassette, in which the conversation between the appellant and PW-1 was recorded, was handed over to the Superintendent of Police and the same was marked as M.O.2. On receipt of Ex. The said report was marked as EX.P-1. It is also alleged that a micro cassette, in which the conversation between the appellant and PW-1 was recorded, was handed over to the Superintendent of Police and the same was marked as M.O.2. On receipt of Ex. P.1 report, the Superintendent of Police, C.B.I. referred the same to the Inspector of Police, C.B.I, who was examined as PW-4, who in turn registered the same as F.I.R. in R.C.20(A)/98, under Section 7 of the Act and the said F.I.R. was marked as Exs.P8. (ii) On the basis of EX.P.1 report, a trap was organized and the trap party requisitioned the services of two officers one from the State Bank of Hyderabad and another from the Department of Railways. PW-2, who was working as an officer in State Bank of Hyderabad, was deputed by the Chief Manager as per the requisition made by the C.B.I. officers and the pre-trap proceedings were drafted in the presence of the said two persons. As suggested to by PW-4, PW-1 brought Rs.500/- in two denominations i.e. 3 hundred rupee notes and 4 fifty rupee notes. PW-4 got tainted the said currency notes in the presence of PW-2 and another mediator i.e. A.K. Gupta (L.W-3) with phenolphthalein powder, gave the said amount to PW-1 and instructed him to pay the said amount only when the appellant demands. The pre-trap proceedings were marked as EX.P-2. It is also the case of the prosecution that on 17-08-1998 the micro cassette (M.O-2) was played in the presence of the said mediators and they heard the conversation between PW-1 and the appellant. (iii) It is further alleged that on instructions by PW-4, PWs.1 and 2 visited the office of the appellant on 18-08-1998, while the trap party was waiting outside, and entered the office in which the appellant was working as Labour Officer at about 12 noon. However, as the appellant was not available in the office PWs.1 and 2 waited there and when the appellant came to the office at 12-45 P.M. they entered his office and wished him. Later when the appellant asked PW-1 as to whether he brought the bribe amount, the tainted money, which was tested with phenolphthalein powder, was given to him and it is also stated that the appellant received the same with his right hand and put in his right hand side pocket of the trouser. Later when the appellant asked PW-1 as to whether he brought the bribe amount, the tainted money, which was tested with phenolphthalein powder, was given to him and it is also stated that the appellant received the same with his right hand and put in his right hand side pocket of the trouser. Thereafter the appellant signed on the papers produced by PW-1 i.e. the Labour Clearance Certificate. On a signal given by PW-2, the trap party entered the office, two constables held the hands of the appellant and when PW-4 questioned him as to where he kept the tainted money, the appellant denied having received the said amount. PW-4 subjected the hands of the appellant to phenolphthalein test, where the right hand fingers of the appellant proved positive, whereas his left hand fingers proved negative. Then one of the mediators pointed out wad of currency notes on the floor near the table and the same was collected and on verification PW-4 satisfied that the said currency notes are tallying with the numbers on the currency notes that were given to PW-1. Later PW-4 got the right hand side pocket of the trouser of the appellant subjected to phenolphthalein test and it also proved positive. As the trap was successful the appellant was arrested and post-trap proceedings were drafted and the said proceedings were marked as Ex.P3. Thereafter, the case was entrusted to another Inspector of Police, C.B.I. for further investigation and the said Inspector was examined as PW-6. PW-6 recorded the statements of PW-2, A.K. Gupta (LW-3) and Eswaraiah (LW-4) and after obtaining required sanction, which was marked as EX.P-10, filed the charge sheet. 3. During the course of trial, the prosecution pressed into service the evidence of PWs.1 to 6 and also exhibited Exs.P-1 to P-12 and M.Os.1 to 6. The plea of the appellant is one of denial and according to him a false case has been foisted against him without any justification and he also examined DWs.1 to 4, of whom DWs.1 to 3 were present in the office at the time of trap. On behalf of defence Ex.D-1 was marked and EX.C-1 was also marked 4. The plea of the appellant is one of denial and according to him a false case has been foisted against him without any justification and he also examined DWs.1 to 4, of whom DWs.1 to 3 were present in the office at the time of trap. On behalf of defence Ex.D-1 was marked and EX.C-1 was also marked 4. On an analysis of both oral and documentary evidence let in by the prosecution as well as the defence, the learned Special Judge has come to the conclusion that the appellant is guilty of the offences for which he was tried and accordingly sentenced him as stated supra. 5. Sri T. Bali Reddy, learned senior counsel appearing for the appellant, vociferously contended that the entire case is false and a false case has been foisted against the appellant for the reasons best known to the prosecution. The evidence given by PW-1 during the course of trial is totally contrary to EX.P-1 complaint. Further, it is contended by learned senior counsel that P.W-1 has not stated anything about the tape recorder in his chief-examination and even if it is accepted that M.O-2 cassette was in existence it is totally useless for the reason that no conversation from out of the said cassette is audible and nothing can be inferred by playing the said cassette. 6. Per contra, Sri T. Niranjana Reddy, learned Special Public Prosecutor for C.B.I., opposed the said submissions and submitted that the demand and acceptance is proved by cogent evidence and even in the absence of the said recorded conversation as per M.O-2 with the available evidence of PWs.1 and 2, the Court can draw presumption as provided for under Section 20 of the Act and held that the appellant is guilty of the offences for which he was tried and the trial Court only after weighing the entire evidence came to the conclusion that the appellant is guilty of the said offences and no interference is called for. 7. In the complaint lodged by PW-1 on 17 -08-1998 he has stated that on 22-07-1998 he approached the appellant for issuance of Labour Clearance Certificate for getting back his security deposit and he demanded an amount of Rs.500/- for the said purpose. It is also stated in the said complaint that unless and until the said amount is paid he would not issue the said Labour Clearance Certificate. It is also stated in the said complaint that unless and until the said amount is paid he would not issue the said Labour Clearance Certificate. It is also stated by him in the said complaint that subsequently he tried for the appellant but he was not available and he was informed that the appellant was on tour and thereafter he visited his office on 17-08-1998. But in the evidence what was stated by PW-1 is that he approached the appellant for the purpose of Labour Clearance Certificate in July 1998 and as he was on tour he visited the office in the month of August 1998 but he could meet him only on 16-08-1998, on which day the appellant demanded the said amount of Rs.500/- for issuance of Labour Clearance Certificate. The said evidence of PW-1 is totally contrary to EX.P-1 complaint given by him. 8. In order to bring home the guilt of any accused person for the offence punishable under Section 13(1)(d) of the Act, a heavy duty is cast upon the prosecution to prove the demand and acceptance. If either of two is not established it is not possible for the Courts to come to the conclusion that the person is guilty of the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. 9. Keeping the said proposition of law if we look at the evidence came in during the course of trial, this Court is unable to come to the conclusion that there was demand. As stated supra, the alleged demand as per Ex.P-1 was on 22-07-1998 and the same was recorded in a cassette, which was marked as M.O-2. But in evidence PW-1 himself has stated that he went to the office of the appellant for the first time only on 16-08-1998, which incidentally happens to be a holiday. The learned senior counsel has drawn my attention to the calendar of the year 1998 and argued that 14th, 15th and 16th of August in that year happen to be holidays and the question of PW-1 approaching the appellant on holiday would be absurd. The officers may be working even on holidays but no person would visit the office for the purpose of getting an official favour such as issuance of Labour Clearance Certificate. 10. Another important aspect, which cannot be brushed aside is handing over of M.O-2. The officers may be working even on holidays but no person would visit the office for the purpose of getting an official favour such as issuance of Labour Clearance Certificate. 10. Another important aspect, which cannot be brushed aside is handing over of M.O-2. When it is the case of PW-1 that he visited the appellant for the first time on 16-08-1998 how could he presume that the appellant would demand bribe and the same is recorded. This somewhat appears to be artificial. It is only when there is a demand, and to put a person in a trap case of this nature anybody would approach the office for the second time with a tape recorder to record the conversation that takes place between the decoy and the appellant against whom there is an allegation of demand for bribe. But it came in the evidence of PW-1 that he visited the appellant for the first time only on 16-08-1998 during the course of which itself he recorded the conversation that had taken place between him and the appellant. Even to accept the said evidence, the said M.O-2 has become useless, as nothing is audible. From playing MO-2 cassette nothing has come out and it is clear that there is no conversation between PW-1 and the appellant. Further, as stated supra there was no necessity for PW-1 to visit the office of the appellant on a holiday i.e. on 16-08-1998. It is only when the prosecution clearly proves that there is demand then the Court can convict a person for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. No doubt, PW-2 has stated in his evidence that when he along with PW-1 visited the office of the appellant the appellant asked PW-1 as to whether he brought the papers and thereafter, according to him, the bribe money was handed over to the appellant and on receipt of the same the appellant signed on the papers. Even the said evidence may not be of any help to the prosecution for the reason that PW-2 has not stated that the appellant has demanded PW-1 as to whether he brought the bribe amount. 11. Even the said evidence may not be of any help to the prosecution for the reason that PW-2 has not stated that the appellant has demanded PW-1 as to whether he brought the bribe amount. 11. For the above reasons, this Court is of the view that the prosecution has miserably failed in bringing home the guilt of the appellant for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. 12. Insofar as the offence under Section 7 of the Act is concerned, even if the demand is not proved, still the Court can convict a person under Section 7 of the Act, if the acceptance is proved by the prosecution. No doubt, PWs.1 and 2 have uniformally stated that the appellant received the tainted amount with his right hand and put the same in the right hand pocket of his trouser. If the same is proved beyond reasonable doubt, then a presumption can be drawn as provided for under Section 20 of the Act to the effect that the said amount is towards illegal gratification. No doubt, the trap party entered the scene of offence, conducted phenolphthalein test on the right hand fingers of the appellant and it proved positive, but that alone is not sufficient to hold that the appellant is guilty of the offence punishable under Section 7 of the Act. Similarly the right hand pocket of the trouser of the appellant was also tested and it also proved positive, but even that will not be sufficient to draw the presumption provided for under Section 20 of the Act to hold that the said amount of RS.500/- is towards illegal gratification. In fact, nothing was recovered from out of the possession of the appellant and the tainted money was recovered only by the side of the table as per the evidence of PWs.1 and 2. 13. Though the appellant could not give any spontaneous explanation as to how the said amount is found beside the table, he categorically stated during his examination under Section 313 of the Code of Criminal Procedure, 1973. The said statement is extracted hereunder -- "I humbly submit that whenever any contractor filed the application for issue of L.C.C. (Labour Clearance Certificate) I have promptly issued the same. The said statement is extracted hereunder -- "I humbly submit that whenever any contractor filed the application for issue of L.C.C. (Labour Clearance Certificate) I have promptly issued the same. Unfortunately the C.B.I. made no verification at all and hastily laid the trap, without cross-checking the wild and false claims of PW-1. The trap has miserably failed, as I did not demand or accept any amount on the date of the incident. On the date of trap incident, there are several visitors and contractors came to my room and I have issued as many as 13 L.C.Cs. on that day. Had only the C.B.I. questioned anyone of them, the truth would have come out to light that I did not demand or accept any money from PW-1, much less from any of them for issuing their L.C.Cs. There is no doubt that PW-1 has placed the money on the floor as he had no moral courage to offer it to me, since I did not demand and that is the reason why he deliberately resorted to such a method. On that day in the presence of the visitors, S/Sri, Mahesh Chandak, Jagadesh Kater, C. Desh Raj, C.C. Sohan, Rajeswara Rao, Eswarappa and Latheefuddin etc. when PW-1 came into my room, I questioned him as to why he came. Then he came towards me, shook hands and then handed over the applications for issue of L.C.C. and the copies of the certificates. I verified those papers and immediately signed them, and handed over to PW-1 with a direction to go to the dispatch and take the number. He thanked me and shook hands again with me. This was witnessed by all the visitors present there. Actually the E.E. has sent a jeep requesting me to come to the accident spot, at the C.R.P.F. site and therefore I was anxious to go there and picked up my belongings from the table and kept them in my pockets in order to leave the office. Suddenly the C.B.I. staff came and held my hands and raised them and did not allow me to move. In the meanwhile other officers had also entered. When they questioned me, I stoutly denied any demand or acceptance of money from PW-1 on the spot but they refused to pay any heed to my factual representation. Suddenly the C.B.I. staff came and held my hands and raised them and did not allow me to move. In the meanwhile other officers had also entered. When they questioned me, I stoutly denied any demand or acceptance of money from PW-1 on the spot but they refused to pay any heed to my factual representation. They did not at all care to verify the facts from anyone of the visitors to my chambers on that day." 14. The said statement recorded during the course of the examination under Section 313 Cr.P.C. appears to be correct. The evidence of PWs.1 and 2 clearly reveal that they went to the office room of the appellant and PW-1 shook the hands with the appellant and the same was spoken to by the appellant in the statement under Section 313 of Cr.P.C. The hands of PW-1 were tainted with phenolphthalein powder and the currency notes were also tainted with phenolphthalein powder and in the light of the shaking of the hands of PW-1 with the appellant there is every possibility of the hands of the appellant tainted with phenolphthalein powder. Further, as the appellant was in a hurry to leave the premises and when he was keeping all his belongings from the table into his right hand pocket of the trouser the pocket also getting tainted with phenolphthalein powder. The said explanation though was not spontaneous appears to be true in the given circumstances. In fact, when questioned during the course of trap it came in the evidence that the appellant denied it and he was shivering. Further, in the course of the act of refusal by the appellant while PW-1 is handing over money the possibility of the appellant's hands coming in contact with the phenolphthalein powder cannot be ruled out. Similarly, when the appellant was about to keep all his belongings from the table into his trouser pocket, with the same hands, the possibility of the contents of the phenolphthalein powder coming in contact to the trouser pocket also cannot be ruled out. Therefore, simply because no spontaneous explanation is given at the time when the appellant was questioned during the time of trap, it cannot be said that the same is a subsequent development. The aforesaid explanation clearly fits into the evidence spoken to by PWs.1 and 2. Therefore, simply because no spontaneous explanation is given at the time when the appellant was questioned during the time of trap, it cannot be said that the same is a subsequent development. The aforesaid explanation clearly fits into the evidence spoken to by PWs.1 and 2. In view of the said explanation in my considered view the presumption under Section 20 of the Act cannot be pressed into service. 15. Of course, the learned Special Public Prosecutor has drawn my attention to the judgments of the Apex Court in C.K. Damadaran Nair v. Govt. of India AIR 1997 SC 551 and State of A.P. v. V. Vasudeva Rad . (2004) 9 SCC 319 . but the facts are entirely different. In those cases, the presumption was pressed into service because of the circumstances narrated in those cases. As stated supra, the explanation offered in the case on hand by the appellant in his examination under Section 313 Cr.P.C. clearly reveals that the amount was not received by the appellant and because of shaking of his hands with PW-1 and keeping all his belongings into his trouser pocket with the same hands, the test conducted to his hands and the trouser proved positive containing phenolphthalein powder. From that no presumption in my considered view can be drawn. In fact, the latest view of the Supreme Court is altogether different. When the demand is disproved the question of acceptance will not arise. In this context, it may be apt to refer the decision in V. Venkata Subbarao v. State AIR 2007 SC 489 , wherein it was held at paragraph 24 as follows: "Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted, as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: '20. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: '20. Presumption where public servant accepts gratification other than legal remuneration-(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 16. In the light of the above discussion this Court has no hesitation to come to the conclusion that the prosecution has miserably failed to bring home the guilt of the appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act beyond all reasonable doubt. 17. In the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant-accused in C.C.No.2 of 1999, vide judgment dated 22-03-2002, by the Special Judge for C.B.I. cases, Hyderabad, are set aside. The bail bond of the appellant shall stand cancelled.