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2013 DIGILAW 52 (AP)

K. John Devasahayam v. State

2013-01-30

R.Kantha Rao

body2013
JUDGMENT This appeal is filed against the judgment dated. 21.10.2005 passed by the Special Judge for SPE & ACB Cases, Nellore in CC No.17 of 1999, whereby and whereunder the appellant/sole accused was convicted for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the Act") and was sentenced to undergo rigorous imprisonment for a period of one year besides payment of fine of Rs.1,000/- and also sentenced to undergo rigorous imprisonment for a period of two years besides payment of fine of Rs.2,000/- for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act respectively. 2. I have heard Smt. D. Sangeetha Reddy, learned Counsel appearing for the appellant and Mr. Ghani A. Musa, learned Special Public Prosecutor for ACB/CBI Cases. 3. The appellant, K. John Devasahayam, was the Prohibition and Excise Inspector, Molakalacheruvu, Chittoor District during the year 1998. PW1-T.Mahaboob Basha, resident of B. Kothakota Village, Chittoor District was running a wine shop under the name and style of 'Shirdi Wines' since 1997. According to him, he was the licensee by paying the licence fee of Rs.67,000/- in the form of challan and furnished bank guarantee of Rs.1,33,334/-. The allegation against the appellant is that he demanded bribe of Rs.38,000/- to get his licence sanctioned and PW1 paid the said amount in four installments to the appellant in April, 1998. 4. It is said that on 21.6.1998 the appellant asked PW1 to come to his residence at Molakalacheruvu, PW1 went to his residence and there the appellant demanded an amount of Rs.10,000/- as monthly mamul for the liquor shop and threatened him that if the said amount was not paid, he would book false cases against him relating to the said shop and see that the licence would be cancelled. 5. Though PW1 agreed to pay the amount within a week, he was not willing to pay the bribe amount, he approached PW5, DSP, ACB, Tirupathi on 24.6.1998 and made a statement to him. His statement was reduced into writing and basing on the said statement, a case in Crime No.4/RCT-TPT/1998 of ACB, Tirupati Range was registered against the appellant. The investigation was taken up by PW5-DSP, ACB and a trap was laid against the appellant on 25.6.1998 at about 15.15 hours. His statement was reduced into writing and basing on the said statement, a case in Crime No.4/RCT-TPT/1998 of ACB, Tirupati Range was registered against the appellant. The investigation was taken up by PW5-DSP, ACB and a trap was laid against the appellant on 25.6.1998 at about 15.15 hours. It is the case of the prosecution that earlier the appellant informed PW1 that he would stay in Deepika Lodge, Madanapally, Chittoor District and PW1 had to pay the bribe amount of Rs.10,000/- to the appellant by the evening of 25.6.1998 PW5, DSP, ACB organized the trap and PW1 went to the Room No.114 of Deepika Lodge, Madanapalli where the appellant was staying. The appellant asked PW1 as to whether he brought the bribe amount and PW1 responded positively. The appellant received the same from PW1 and kept it in his pant pocket. Thereafter, PW1 came out and relayed the pre-arranged signal, on receipt of the same, the raiding party rushed into the Room No.114 of Deepika Lodge. On seeing them, the appellant threw the amount on the platform connected to the ward robe in the room. PW5-DSP ACB asked the appellant about the bribe amount and the appellant according to the prosecution admitted before PW5-DSP ACB that he received the bribe amount from PW1. Subsequently, the chemical test conducted on the fingers of PW1 as well as the inner lining of the pant pocket yielded positive results. PW5-DSP, ACB recovered the bribe amount lying on the platform connected to the wardrobe. The numbers of the currency notes which were noted down in the pre-trap proceedings were tallied with the notes which were recovered in the Room No.114 of Deepika Lodge, Madanapalli. 6. Subsequently, the appellant was tried by the learned Special Judge for ACB Cases for the charges under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and was convicted and sentenced to punishment as mentioned above. Challenging the said order of conviction and sentence, the appellant preferred the present appeal. 7. The prosecution to prove the aforementioned charges, examined before the trial Court PWs.1 to 6, marked Exs.P1 to P10 and MOs.1 to 10. The appellant/accused on his behalf examined DWs.1 and 2 and marked EX.D1. 8. Challenging the said order of conviction and sentence, the appellant preferred the present appeal. 7. The prosecution to prove the aforementioned charges, examined before the trial Court PWs.1 to 6, marked Exs.P1 to P10 and MOs.1 to 10. The appellant/accused on his behalf examined DWs.1 and 2 and marked EX.D1. 8. PW1 fully supported the prosecution version and he spoke about the appellant demanding bribe from him and receiving the same in the course of the trap laid against him by PW5, DSP, ACB. The defence version was that the appellant, who was the Excise Inspector booked cases against the followers of Lakshmidevamma, M.L.A. of Tambalapalli and the M.L.A. got falsely, trapped the appellant through PW1, who is one of her followers. PW1, however testified before the trial Court that he does not know about filing of cases by the appellant against the followers of M.L.A. Lakshmidevamma and he had no acquaintance with her. The appellant in his examination under Section 313 Cr.P.C. filed some documents to show that the appellant filed cases against the followers of M.L.A., Tambalapalli, but failed to adduce any evidence showing that the said cases were against the followers of the M.L.A., Tambalapalli. Therefore, the learned trial Court rightly held that the appellant failed to establish that PW1 became instrumental in the hands of M.L.A., Lakshmidevamma to falsely involve the appellant in the present trap case. 9. The version of PW1 is that the appellant was frequently making visits to his wine shop and was threatening him to book false cases if he failed to pay the bribe amount as demanded. He had specifically stated in his evidence that the appellant ultimately issued a notice to him on 10.4.1998 to produce the account books and nowkarnama and in spite of PW1 pleading that the said documents were not so far supplied to him by the department, the appellant booked a case against him and ultimately, the appellant paid fine amount of Rs.1,000/- in the said case. Thus, the version of PW1 is that the appellant was pressurizing and harassing him to pay the illegal gratification of Rs.10,000/- to him. 10. Thus, the version of PW1 is that the appellant was pressurizing and harassing him to pay the illegal gratification of Rs.10,000/- to him. 10. One of the contentions urged by the learned Counsel appearing for the appellant is that the power to grant licence or cancellation of licence is with the Assistant Commissioner of Excise and the appellant has no power either to grant or cancel the licence and therefore, no official favour was pending with the appellant on the alleged date of trap. In this context, it is required to be noticed that though the appellant has no power to cancel the licence which was granted to PW1, he can certainly book false cases and basing on which he can see that the licence of the appellant is cancelled ultimately. Therefore, there is basis for the assertions made by PW1 that the appellant threatened him to book false cases in respect of his wine shop unless the bribe amount was paid and ultimately the bribe amount was said. 11. Another contention urged on behalf of the appellant is that the crime was registered on 24.6.1998, the trap was laid on 25.6.1998 and the first information report reached the CBI Court, Nellore on 25.6.1998 and there occurred delay of more than 35 hours in reaching the first information report the Court concerned and the said delay which has not been properly explained is fatal to the case of the prosecution. The contention does not seem to be correct. The trap was laid at Tirupathi and the CBI Court, Nellore is situated at a distance of 135 Kms. Therefore, there is every possibility for some delay in the first information report reaching the CBI Court, Nellore. Further, no circumstances have been pointed out by the appellant to show that on account of delay the prosecution introduced any concocted or distorted version. Therefore, the delay even if any occurred in the first information report reaching the Court is of no consequence and the said delay cannot be said to be fatal to the case of the prosecution. 12. According to the appellant, PW1 came to his Room No.114 of Deepika Lodge on the date of trap, he thrusted the amount into his pant pocket, but he did not receive the said amount. Admittedly, according to PW5, DSP, ACB there was no such spontaneous explanation offered by the appellant in the post-trap proceedings. 12. According to the appellant, PW1 came to his Room No.114 of Deepika Lodge on the date of trap, he thrusted the amount into his pant pocket, but he did not receive the said amount. Admittedly, according to PW5, DSP, ACB there was no such spontaneous explanation offered by the appellant in the post-trap proceedings. To establish the fact that PW1 thrusted the amount into his pant pocket, the appellant examined DW2, the room boy of the lodge on his behalf. DW2 stated in his evidence that at about 3 p.m., as the appellant informed him that he would vacate the room he was arranging the belongings of the appellant, at that time one person came and kept something in the pant pocket of the appellant and ran away. Then according to DW2, the appellant put his hand into the pant pocket and took out currency notes and handkerchief and kept the handkerchief in the pant pocket and threw away the currency notes. Thereafter, this witness states that four or five persons came and pushed him aside by saying that they are ACB people. The evidence of DW2 does not inspire any confidence for the reason that his evidence shows that the appellant is a regular customer to the lodge and there is every possibility for him to give evidence in favour of the appellant. Moreover, in the normal course, in the presence of DW2, room boy, PW1 would not resort to thrusting the amount into the pocket of the appellant, who is Inspector of Prohibition and Excise. The very theory put-forth by the appellant that PW1 thrusted the amount into his pant pocket and ran away is quite unconvincing arid unacceptable. 13. The appellant also examined the Head Constable in Prohibition and Excise Department as DW1-P.S. Venkatesaiah. DW1 stated in his evidence before the trial Court that he knew the appellant and PW1, on 21.6.1998 PW1 came to the Excise Station and enquired with him about the appellant and DW1 told him that the appellant was going to Madanapally and would stay in the Deepika Lodge. This witness was examined by the appellant to show that PW1 did not meet him on 21.6.1998 and that there was no occasion for him to demand any bribe from PW1. This witness was examined by the appellant to show that PW1 did not meet him on 21.6.1998 and that there was no occasion for him to demand any bribe from PW1. But, as rightly said by the learned trial Court, DW1 is the Subordinate Officer of the appellant and would normally give evidence in favour of the appellant and therefore, no reliance can be placed on his evidence. 14. Thus, in this case, the defence theory as well as the version of DWs.1 and 2 does not inspire any confidence and the learned trial Court rightly declined to place any reliance on the version of these two witnesses. 15. On the other hand, the evidence of PW1, the de facto complainant, PW2, the mediator, and PW5, DSP, ACB is cogent and convincing. The evidence of PW1 clearly reveals that the appellant demanded bribe of Rs.10,000/- from him by threatening him that if the bribe amount was not paid, he would book false cases against him and ultimately he would see that the licence of the wine shop is cancelled. The evidence of PW2 and PW6 clearly shows that the chemical test conducted on the fingers of the appellant gave positive result and that the tainted amount was recovered from the room in Deepika Lodge where the appellant was staying. Thus, the prosecution by highly convincing and reliable evidence proved that the appellant demanded and voluntarily accepted the bribe amount of Rs.10,000/- from PW1. In such an event, it is obligatory on the part of the Court to raise a presumption against the accused as envisaged under Section 20 of the Prevention of Corruption Act to the effect that the said amount was received by the appellant as illegal gratification for doing official favour. The presumption is a rebuttable one and can be dislodged by the appellant either by adducing positive evidence or by showing circumstances in his favour. In the instant case, the evidence adduced by the appellant was rightly found by the trial Court as unreliable and absolutely there were no circumstances probabalising the version of the appellant in the entire material available on record. In the instant case, the evidence adduced by the appellant was rightly found by the trial Court as unreliable and absolutely there were no circumstances probabalising the version of the appellant in the entire material available on record. The learned trial Court therefore, rightly convicted the appellant for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and the conviction and sentence passed by the trial Court do not call for any interference in the present appeal. 16. Consequently, the conviction and sentence passed by the Special Judge for ACB Cases, Tirupati in CC No.17 of 1999 against the appellant are confirmed and the appeal is dismissed.