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2013 DIGILAW 98 (AP)

Marugu Narayana v. State

2013-02-13

R.KANTHA RAO

body2013
JUDGMENT This appeal by the sole accused arises out of the judgment dated 16.12.2005 passed by the IV Additional Chief Judge, City Civil Court, Hyderabad-cum-Principal Special Judge for SPE & ACB Cases, Hyderabad in CC No. 12 of 2001, whereby and whereunder the appellant was convicted for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the Act") and sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 7 of the Act and to pay fine of Rs. 1,000/- and also sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 13(1)(d) of the Act and to pay fine of Rs. 2,000/-. 2. I have heard the learned Counsel appearing for the appellant and the learned Standing Counsel for the ACB Cases. 3. The appellant, Merugu Nrayana was the Village Administrative Officer of Nagaram Village, Nekkonda Mandal, Warangal District on the alleged date of trap. He was the public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988. 4. According to the prosecution, Sontireddy Prathap Reddy, the de facto complainant in this case purchased a land of Acs. 14.10 guntas in Survey No. 137 situated at Gundrapalli Village on 31.3.1998 under two registered sale deeds i.e., one in his favour and the other in favour of his wife Smt. Vasantha. He submitted an application on 7.5.1998 to the Mandal Revenue Officer, Nekkonda wherein the appellant was working as In-charge Village Administrative Office. It is said that the appellant demanded an amount of Rs. 1,000/- from LW1 for issuing pattedar pass books in the name of LW 1 and his wife. The first demand was allegedly made in October, 1998. LW 1, thereafter approached the Mandal Revenue Officer and told him that the appellant was not issuing the pattedar pass books. On that it is said that the Mandal Revenue Officer called the appellant and gave instructions to issue pattedar pass books without any further delay. In spite of the instructions given by the Mandal Revenue Officer, it is said that on 5.1.1999 again the appellant reiterated the said demand. On that, LW 1, who was not inclined to pay the bribe amount, approached the DSP, ACB, Warangal Range on 7.1.1999 at 11.30 a.m. and lodged a report against the appellant. In spite of the instructions given by the Mandal Revenue Officer, it is said that on 5.1.1999 again the appellant reiterated the said demand. On that, LW 1, who was not inclined to pay the bribe amount, approached the DSP, ACB, Warangal Range on 7.1.1999 at 11.30 a.m. and lodged a report against the appellant. On the strength of the said report, a case in Crime No. 1/ACB-WRL/99 was registered on 8.1.1999 and was investigated into. 5. In the course of investigation, a trap was laid on 8.1.1999. During the course of the trap allegedly the appellant received an amount of Rs. 1,000/- from LW1 and kept the same in his left kurta pocket. Thereafter, LW 1 came out and relayed the pre-arranged signal, the raiding party rushed in and phenolphthalein test conducted on the left hand fingers of the appellant yielded positive result. Subsequently, the tainted amount of Rs. 1,000/- was recovered from the position of the appellant at his instance, when he produced the same from his left kurta pocket. Thereafter, a charge-sheet was laid and the appellant was tried by the learned Special Judge for SPE and ACB Cases for the aforesaid charges. 6. To substantiate the afore-mentioned allegations, the prosecution examined before the trial Court PWs. 1 to 5 and marked Exs. P1 to P11 and MOs. 1 to 8. LW1, S. Pratap Reddy, the de facto complainant died before the commencement of the trial and therefore, he could not be examined by the prosecution. The appellant/accused did not propose to examine any defence witnesses before the learned Special Judge. 7. PW 1, the Assistant Executive Engineer in the Office of Superintendent of Engineer, Ichampally Project of Irrigation Circle, Hanumakonda, Warangal is one of the mediators. He deposed in his evidence that he was summoned by the DSP, ACB as mediator on 8.1.1999. The DSP, ACB introduced LW 1 to him and informed that LW 1 lodged a complaint with the ACB. According to this witness, when he and the other mediator confronted the report to LW 1, he affirmed the contents and stated that he voluntarily gave the report to the DSP, ACB and the contents mentioned in the report - Ex. P9 were true. According to this witness, when he and the other mediator confronted the report to LW 1, he affirmed the contents and stated that he voluntarily gave the report to the DSP, ACB and the contents mentioned in the report - Ex. P9 were true. This witness further deposed that on the date of trap on 8.1.1999 at 11.30 a.m., LW1, S. Pratap Reddy went to the office of the appellant while he and other trap party members were waiting outside, five minutes thereafter, LW 1 came out and displayed the prearranged signal and on receiving the same he and the other raiding party members including the DSP, ACB rushed into the appellant's office. According to this witness phenolphthalein test conducted on the left hand fingers of the appellant yielded positive results and that the tainted amount of Rs. 1,000/- was also recovered from the left kurta pocket of the appellant. His evidence also discloses that the numbers of the currency notes noted in the list annexed to the pre-trap proceedings were tallied with the numbers of the currency notes recovered from the appellant. 8. PW2 was the Mandal Revenue Officer at relevant time. His evidence discloses that in the month of October, 1998, LW 1 approached him and complained that the appellant. was not preparing the passbooks. Then according to this witness, he called for Ex.P5-register and on verification it was found that at Serial Nos. 11 and 12 at Pages 8 and 9 the names of LW 1 and his wife were filled up. Thus, this witness stated before the trial Court that the previous Mandal Revenue Officer already made an enquiry and issued an order for preparing pattedar pass book and also signed on the passbooks. He further stated in his evidence that after verifying the entries he questioned the appellant as to why there was delay in issuing passbooks and on that the appellant replied that one K. Ramachander Rao, VAO informed him that he got right in the property and therefore, there was delay and the matter was required to be enquired. It is also the evidence of this witness that he summoned K. Ramachander Rao and told him that if he had any grievance he can approach the civil Court and that it was not possible for them to stop issuance of pattedar pass books to the appellants. It is also the evidence of this witness that he summoned K. Ramachander Rao and told him that if he had any grievance he can approach the civil Court and that it was not possible for them to stop issuance of pattedar pass books to the appellants. This witness further deposed that he handed over blank pass books to the appellant and directed to prepare the pattedar pass books in accordance with the entries in Ex.P5. Subsequently, he signed on Exs. P2 and P3 pass books on 7.1.1999 and handed over them to the appellant. The evidence of this witness clearly discloses that there was a complaint made by LW1 against the appellant and thereafter the pattedar passbooks were singed by the MRO and handed over to the appellant on 7.1.1999. Under these circumstances, it is therefore, not possible for the appellant to contend that no official favour was pending with him. 9. PW4, the DSP ACB stated in his evidence about LW 1 lodging a report with him, he registering the case against the appellant laying trap on 8.1.1999 and the chemical test conducted on left hand fingers of the appellant yielding positive result and recovery of tainted amount of Rs. 100/- from the possession of the appellant. The evidence of this witness shows that the pattedar pass books were recovered from the complainant after the trap. 10. It has been contended by the learned Counsel appearing for the appellant that according to the prosecution, the only witness that was present at the time of alleged demand and acceptance of bribe is LW1, since he died and nobody witnessed the demand and acceptance of bribe, the learned trial Court erred in convicting the appellant for the offences aforementioned. On the other hand, the learned Standing Counsel for ACB Cases contended that even though when the de facto complainant died prior to the commencement of the trial, the circumstances brought on record by the prosecution from the evidence of PWs. 1, 2 and 4 revealed that the appellant demanded and accepted the bribe from LW1 and therefore, the trial Court rightly convicted the appellant. 11. 1, 2 and 4 revealed that the appellant demanded and accepted the bribe from LW1 and therefore, the trial Court rightly convicted the appellant. 11. According to the learned Counsel appearing for the appellant mere recovery of the tainted amount from the accused and the chemical test conducted on him proving to be positive do not enable the trial Court to draw a presumption under Section 20 of the Act against the appellant. In support of his contention, he relied on State of Tamilnadu v. S. Krishnamurthy, (2002) 9 SCC 530 , wherein the Supreme Court agreed with the order of acquittal passed by the High Court holding that the very fact that he received a sum of Rs. 300/- cannot ipso facto establish that the money in question had been received by him as bribe for doing official favour. In the above case relied on by the learned Counsel, the circumstance pointed out in the case was that there was a practice of collecting money for certain funds in the Taluk Office and therefore considering the said circumstance, the Supreme Court upheld the order of acquittal passed by the High Court, but in the instant case, the circumstances are different. Here there is absolutely no explanation from the appellant as to how he came into position of the tainted amount. Therefore, the decision relied on by the learned Counsel is not applicable to the facts of the present case. 12. On the other hand, the learned Standing Counsel for ACB relied on State of A.P. v. V. Vasudeva Rao, 2003 (2) ALD (Crl.) 1030 (SC) = 2004 Cri. LJ 620, wherein the Supreme Court held as follows: "When accused is in possession of money and when prosecution brought reliable materials that there was recovery of money from the accused; in fact the receipt and recovery is accepted and plea of loan was not cogent or credible, it can be presumed that accused received illegal gratification." 13. In the instant case, PW1, the mediator had categorically deposed to the fact of LW1 entering into the office of the appellant and after five or ten minutes coming out, relaying pre-arranged signal. The prosecution thus proved from the evidence of PW1, mediator and PW4, DSP, ACB that with the tainted amount LW1 went into the office of the appellant and sometime thereafter came out and relayed the pre-arranged signal. The prosecution thus proved from the evidence of PW1, mediator and PW4, DSP, ACB that with the tainted amount LW1 went into the office of the appellant and sometime thereafter came out and relayed the pre-arranged signal. Their evidence also further discloses that LW1 voluntarily gave report against the appellant. Therefore, in this case, the prosecution by positive evidence proved that the appellant voluntarily accepted the tainted amount of Rs. 1,000/- from LW1 and received the same. It is not the case where the de facto complainant was withheld by the prosecution. The prosecution could not examine the de facto complainant as he died prior to the commencement of the trial. As the prosecution proved voluntary acceptance of tainted amount of Rs. 1,000/- from LW1, the learned trial Court in my view is justified in drawing a presumption under Section 20 of the Act against the appellant to the effect that it was towards illegal gratification and for doing official favour to issue pass books. The evidence of PW2, the Mandal Revenue Officer discloses that the appellant caused delay in preparing the pass books in spite of the order passed by the earlier MRO and therefore apparently on the crucial date, official favour was pending with the appellant. All the circumstances put together clearly reveal that the appellant demanded and accepted the bribe amount from LW1. The appellant did not adduce any positive evidence or brought on record any circumstances which would displace the presumption raised against him under Section 20 of the Act. The learned trial Court therefore, rightly convicted the appellant for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Act. 14. As regards the sentence, since the incident took place in the year 1998, considering the submissions made by the learned Counsel appearing for the accused as to the condition in which the appellant is placed, the sentence passed by the trial Court against the appellant to undergo rigorous imprisonment for a period of two years for the offence under Section 13(1)(d) of the Act is reduced to one year while maintaining the fine amount. However, the sentence passed against the appellant for the offence under Section 7 of the Act to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/- in default to suffer simple imprisonment for three months is hereby confirmed. However, the sentence passed against the appellant for the offence under Section 7 of the Act to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/- in default to suffer simple imprisonment for three months is hereby confirmed. Both the substantive sentences shall run concurrently. 15. With the above reduction in the sentence passed by the trial Court, the appeal is partly allowed.