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Andhra High Court · body

2019 DIGILAW 73 (AP)

V. Jaya Latha v. State

2019-06-04

T.RAJANI

body2019
JUDGMENT : T. Rajani, J. 1. This appeal assails the judgment, dated 10.12.2015, passed in CC No. 28 of 2014 on the file of the Court of the II Additional Special Judge for CBI Cases, Visakhapatnam, by virtue of which the Court below convicted the appellant/accused for the offence under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1989 (sic 1988) (for short, "the Act"), and sentenced to undergo simple imprisonment for a period of two years and a fine of Rs. 5,000/- and in default of payment of fine to suffer simple imprisonment for a period of three months for the offence under Section 7 of the Act; he was further sentenced to undergo simple imprisonment for a period of two years and a fine of Rs. 10,000/- in default to suffer simple imprisonment for a period of three months for the offences under Section 13(1)(d) read with 13(2) of the Act. 2. The facts of the case, briefly, as per the charge-sheet are as follows: The accused was posted as Enforcement Officer at the office of Employees Provident Fund, District Office, Vijayawada from 31.12.2012. As an Enforcement Officer, she has to attend the work of Inspection of establishments for the purpose of applicability of Employees Provident Fund and Miscellaneous Provisions Act, submit 7-A inspection reports in respect of establishments, verification of claims pertaining to the employees of different establishments coming under the purview of EPF and MP Act. While so, one Gonda Jayasekhar of Vijayawada established one proprietary firm in the name and style of M/s. Sri Lakshmi Engineering Works at Vijayawada in the year 2012 for executing different types of Mechanical engineering works. The firm was registered with EPFO and the said Jayasekhar remitted provident fund in respect of employees engaged by him during the year 2012-13. Jayasekhar closed the firm on 1.4.2013 onwards as there was loss in the business. While closing his firm he cleared all the dues with EPFO. Subsequently, he received a show-cause notice, dated 17.10.2013, from the Assistant Provident Fund Commissioner, EPFO, Guntur, for not remitting PF dues for the period from April, 2013 to September, 2013 though the firm was already closed. In this regard, the Assistant Provident Fund Commissioner, EPFO, Guntur, initiated an inquiry on 18.11.2013 regarding the affairs of the said firm and Jayasekhar appeared before him on 22.4.2014 as per the notice. In this regard, the Assistant Provident Fund Commissioner, EPFO, Guntur, initiated an inquiry on 18.11.2013 regarding the affairs of the said firm and Jayasekhar appeared before him on 22.4.2014 as per the notice. The Assistant Provident Fund Commissioner adjourned the matter on 6.5.2014 with a direction to Jayasekhar to meet the accused. Accordingly, the said Jayasekhar went to PF Office at Vijayawada on 23.4.2014 and met the accused and showed her all the related documents and explained that he had already closed his firm with effect from 1.4.2013 after payment of all the dues. The accused inspected the office premises of Jayasekhar on 28.4.2014 as part of the inspection and instructed him to come to her office at Vijayawada and on the next day, on 29.4.2014, Jayasekhar went to her office at Vijayawada and the accused demanded Rs. 20,000/- towards bribe, for sending favourable inspection reports to the Assistant PF Commissioner, Guntur for closing the matter. Jayasekhar expressed his inability to pay the bribe to her. Then the accused reduced the demanded bribe amount to Rs. 10,000/- and asked Jayasekhar to handover the same at her residence in the morning of 5.5.2014 to give a favourable report for closing the matter about the closed firm. Jayasekhar was not willing to give any bribe to the accused and thereby he lodged complaint on 6.5.2014. Basing on the said report, the Inspector of Police, laid trap on the accused during which she was caught red handed for demanding and accepting illegal gratification of Rs. 10,000/-. During the course of investigation, the Inspector of Police recovered the currency notes along with the cover in which the amount was kept. After due investigation, charge-sheet was laid against the accused for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Act. 3. The Trial Court, on appearance of the accused before it, complied with all the required legal formalities and framed the charges for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Act against the accused, for which the accused pleaded not guilty and claimed to be tried. 4. During the course of trial, on behalf of prosecution, P.Ws. 1 to 14 were examined and Exs. P1 to P26 and M.Os. 1 to 13 were marked. 5. 4. During the course of trial, on behalf of prosecution, P.Ws. 1 to 14 were examined and Exs. P1 to P26 and M.Os. 1 to 13 were marked. 5. After conclusion of the prosecution evidence, the accused was questioned about the incriminating circumstances appearing against her during her examination under Section 313 Cr.P.C. She denied the truth in the evidence of the prosecution witnesses and, on his behalf, no witnesses were examined, but he got marked Exs. D1 and D2. 6. The lower Court, on appreciation of the evidence and the material on record, passed the impugned judgment, against which this appeal is filed on the grounds that the Court below failed to appreciate the fact that the sanction to prosecute the applicant in accordance with law was not obtained and hence, the very finding in Paragraph (d) of the judgment that there is a valid sanction in view of the evidence of P.Ws. 8 and 9 is not in accordance with the procedure and law; the Court below failed to consider that it was not established by the prosecution that the appellant demanded the alleged bribe amount from the complainant on 29.4.2014, 30.5.2014, 5.5.2014 and 6.5.2014 by adducing positive evidence, and on the other hand it was established by the accused that she was out of station on some of the dates referred above; the Court below failed to consider that it is the specific case of the prosecution that the accused specifically demanded the bribe amount of Rs. 20,000/- initially and later the same was reduced to Rs. 10,000/-, but the prosecution failed to prove that there is a specific demand by the accused. The Court below failed to appreciate the contradictions in the prosecution. On one hand at Paragraph 2(a)(vii) the Court below recorded that the accused did not accept to receive tainted notes from PW1 directly and clearly told him to keep the same in cover and to place on a table. Having recorded so, it is to be reasonably presumed that the accused did not touch the tainted currency notes. But on the other hand, the prosecution claims that the chemical test result of washing of accused hands resulted positive. So there is contradiction in the prosecution version and this contradiction must lead to the benefit of doubt to the accused; that the Court below failed to observe that PW14 examined M.Os. But on the other hand, the prosecution claims that the chemical test result of washing of accused hands resulted positive. So there is contradiction in the prosecution version and this contradiction must lead to the benefit of doubt to the accused; that the Court below failed to observe that PW14 examined M.Os. 1, 2 and 5 bottles which contain both hand washes of accused officer and cotton squab wash and issued positive report The above evidence of PW14 is contra to evidence of P.Ws. 1 to 3. The very observations of Court below at Paragraph 2(d)(i) that it came to conclusion that the accused officer handled the tainted currency notes after PW1 placed on the table and went away for which the colour test was yielded positive result The aforesaid observation has no supportive evidence and moreover contra to the evidence of P.Ws. 1 to 3. The very observations of the Court below at Para 2(d)(i) that it came to conclusion that the accused handled the tainted currency notes after PW1 placed on the table and went away for which the colour test yielded positive result. The aforesaid observation has no supportive evidence and moreover contra to the evidence of P.Ws. 1 to 3; that the Court below failed to consider the settled proposition of law that when the case rests upon the evidence of solitary witness it must be unimpeachable, true, trustworthy and free from any doubt and it should be reliable. But in the instant case PW1 failed to establish that he is such an unimpeachable and trustworthy witness; Further, M.Os. 7 to 9 i.e., DVR containing the conversation between complainant and accused, DVD containing conversation between complainant and accused and CD containing telephonic conversation between complainant and accused and that the said evidence is not best evidence as per the law laid down by the constitutional Courts. 7. Heard the learned Counsel for the appellant and the Special Public Prosecutor for the respondent. 8. The contentions raised by the Counsel for the appellant are that the prosecution failed to prove the demand made by the accused and hence, mere recovery from the accused, even if proved, would not prove the guilt of the accused. 7. Heard the learned Counsel for the appellant and the Special Public Prosecutor for the respondent. 8. The contentions raised by the Counsel for the appellant are that the prosecution failed to prove the demand made by the accused and hence, mere recovery from the accused, even if proved, would not prove the guilt of the accused. He contends that on the alleged date of incident, which is 28.4.2014, the appellant was on office duty and hence, the evidence of PW1 that she inspected the premises on 28.4.2014, cannot be accepted. In support of his contentions, he relies on the following judgments: (1) Mukhtiar Singh v. State of Punjab, 2017 (2) ALD (Crl.) 830 (SC) : (2017) 8 SCC 136 . (2) Meena v. State of Maharashtra, 2000 (1) ALD (Crl.) 811 (SC) (3) B. Jayaraj v. State of Andhra Pradesh, 2014 (2) ALD (Crl.) 73 (SC) (4) P. Satyanarayana Murthy v. District Inspector of Police, 2015 (2) ALD (Crl.) 883 (SC) : AIR 2015 SC 3549 (5) CM. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 (6) State of Punjab v. Madan Mohan Lal Verma, 2013 (2) ALD (Crl.) 792 (SC) : 2013 Cri. LJ 4050 (7) Hari Dev Sharma v. State, AIR 1976 SC 1489 (8) B. Doraswamy v. State of Andhra Pradesh, 2003 (1) ALD (Crl.) 656 (AP) (9) State of Gujarat v. Navinbhai Chandrakant Joshi etc., in Crl. A Nos. 895 and 896 of 2018, 2018 (2) ALD (Crl.) 477 (SC). 9. The Special Public Prosecutor, on the other hand, contends that the inspection made by the appellant on 28.4.2014 was categorically spoken to by PW1 and is also supported by the evidence of his son and the person, who accompanied him, who were examined as P.Ws. 3 and 2 respectively. 10. Keeping the above arguments in mind, this Court frames the following points for consideration: (1) Whether the appellant inspected the premises of PW1 on 28.4.2014 and whether the demand made by the appellant is proved beyond all reasonable doubt. (2) Whether the judgment of the Court below is sustainable. (3) To what result. Point No. 1: 11. In order to draw support to the contention of the appellant's Counsel that there was no official favour pending as on the date of trap, the Counsel relies on Ex. P5, which shows that the date of inspection is on 1.5.2014. (2) Whether the judgment of the Court below is sustainable. (3) To what result. Point No. 1: 11. In order to draw support to the contention of the appellant's Counsel that there was no official favour pending as on the date of trap, the Counsel relies on Ex. P5, which shows that the date of inspection is on 1.5.2014. He contends that as per the inspection report, PW1 was advised to remit the PF and hence, that has to be construed as an adverse report to PW1 and consequently, it has to be held that there was no demand made by the appellant from PW1. The evidence of PW1 can be looked into to appreciate Ex. P5. 12. According to PW1, he was running a proprietary firm with 20 persons working in the firm. He closed the firm on 1.4.2013. He used to remit the monthly EPF in the EPF office and there were no dues pertaining to the EPF of the employees. He received a show-cause notice from the Assistant Provident Fund Commissioner (Compliance) demanding him to remit monthly EPF amounts from 1.4.2013 till September, 2013. In that regard, he met the Assistant Commissioner of PF and stated to him that he closed his firm on 1.4.2013 and there were no dues by him. He also informed him that he already sent total details of closure of his firm by registered post. The Assistant Commissioner informed him that he has to consult Enforcement Officer of EPF, Vijayawada and have to submit compliance report by 6.5.2014 and adjourned the matter to the said day. On 23.4.2014, he met the enforcement officer, who is the accused in this case. She verified his firm's records and informed him that she will inspect the premises of the firm on 28.4.2014. As such, she inspected the premises and asked PW1 to come to her office and meet her on 29.4.2014. There she demanded PW1 an amount of Rs. 20,000/- as a formality. He expressed his inability to pay the same. She asked him to come to her house on 30.4.2014, for which PW1 went to the house of the accused. On 29.4.2014, the accused obtained some forms which are empty. On 30.4.2014 she again demanded Rs. 20,000/- to complete his work, then PW1 requested to reduce the amount. Finally, the accused demanded to pay Rs. She asked him to come to her house on 30.4.2014, for which PW1 went to the house of the accused. On 29.4.2014, the accused obtained some forms which are empty. On 30.4.2014 she again demanded Rs. 20,000/- to complete his work, then PW1 requested to reduce the amount. Finally, the accused demanded to pay Rs. 10,000/- by 5.5.2014 in order to send the compliance report on 6.5.2014. On 5.5.2014, he did not visit the house. The accused contacted him over phone in the evening on 5.5.2014 and reminded him of the amount and also expressed that she would not otherwise send the compliance report. Then they decided to give a report to the ACB. He contacted the ACB officials, Vijayawada, at about 07:00 p.m., over phone and informed him to consult CBI, Visakhapatnam. He contacted officials of CBI, Visakhapatnam, over phone who informed about the demand of accused. They instructed to him to meet CBI Inspector. On 6.5.2014, he met him and got prepared a report at his house and submitted the same to CBI Inspector. PW1 went alongwith Nageswararao, who was examined as PW2, started to the house of the accused in his car; Officials of CBI and others also followed them to the house of accused; Himself, his son, and Nageswararao went into the house of the accused. PW2 was stopped at the middle of the steps i.e., at a distance of 6 feet from the main door. When he knocked the door, accused opened it and asked them to sit in the front room till she completed her tiffin. After ten minutes she came to them and she verified the record relating to closure of his firm. Accused asked his son to go out. He went away. Then the accused asked whether he brought the amount or not. When he stated that he brought the amount, she asked her to keep it in the same cover in which it was brought. PW1 asked her to take and count the same, but she did not receive and asked him to count the amount and keep it in a cover. Then PW1 counted and placed the cover on the table. Then the accused gave closing certificate to him. It is this closing certificate, which is relied upon by the appellant to contend that there was no official favour pending as on 6.5.2014. Then PW1 counted and placed the cover on the table. Then the accused gave closing certificate to him. It is this closing certificate, which is relied upon by the appellant to contend that there was no official favour pending as on 6.5.2014. The date of inspection is recorded as 1.5.2014, which is contrary to the date of inspection stated by PW1. But as to why the date of inspection was mentioned as on 1.5.2014 is not known. 13. The evidence of PW1 gains credibility from the fact that his son, who accompanied him, supported his evidence. Though he was not present when the incident occurred, it supports the fact that PW3 accompanied P.Ws. 1 and 2. The evidence of P.Ws. 1 to 3 read together would stand without any inconsistencies or discrepancies. The Inspection Report, Ex. P5, though shows that there was an advice to remit the PF amount, under the important point, it is noted that the Deputy Commissioner of Labour issued a letter, dated 28.11.2013, that the establishment is closed and that the letter is enclosed along with the inspection report, which supports the assumption that she recommended to drop the proceedings of recovery of PF in view of the letter which is addressed to the Deputy Commissioner of Labour, Vijayawada, dated 25.4.2013 informing about the closure of the unit. Otherwise there is no reason to mention about the said letter in the inspection report. 14. The contention that 28.4.2013 is an office day for the accused, though might be true, cannot belie the evidence of PW1. It is possible, that inspite of it being an office day, the accused might have visited the premises of PW1. When there is positive evidence coming from PW1 that she visited the premises and when his evidence is not probabilised to be motivated, the mere fact that it is an office day for the accused, cannot be taken into consideration to hold that she was present in the office on that day without leaving the office at any point of time. The telephonic conversation between PW1 and the accused is also brought before the Court after transcription. PW6, who is the nodal officer, Bharati Airtel Limited, testified about the furnishing of the call details along with a covering letter. But he does not state that he issued Section 65-B certificate prescribed under the Evidence Act, along with the said data. 15. The telephonic conversation between PW1 and the accused is also brought before the Court after transcription. PW6, who is the nodal officer, Bharati Airtel Limited, testified about the furnishing of the call details along with a covering letter. But he does not state that he issued Section 65-B certificate prescribed under the Evidence Act, along with the said data. 15. The Supreme Court, by virtue of its judgment reported in Anvar P.V. v. P.K. Basheer and others, 2014 (6) ALD 203 (SC) : AIR 2015 SC 180 , held that unless requirements of Section 65-B are satisfied, the electronic records are inadmissible. It held that proof of electronic record is a special provision introduced under the Evidence Act. The very caption of Section 66-A of the Evidence Act is sufficient to hold that special provisions of evidence relating to electronic records under Section 65-B of the Act is sufficient to hold that the special provisions on evidence realign to electronic record shall be governed by the procedure prescribed under Section 65-B of the Act. It also held that that is a complete code in itself; being a special law, the general law on secondary evidence under Sections 63 and 65 has to yield. It was held that an electronic record by way of secondary evidence therefore shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. It further held that in the case of CD, VCD, Chip etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. 16. Hence, the call records and the conversation stand out of consideration of this Court. But the evidence of P.Ws. 1 to 3 which is already observed to be consistent and cogent, can very well be relied upon. The phenolphthalein test proved positive. The cover in which the tainted amount was kept was found in the bed room of the accused, though the evidence of PW1 is that it was kept in the hall. Hence, the same would prove that the accused has accepted the amount and kept it in the bed room. 17. PW4, who is an Assistant Provident Fund Commissioner, stated that PW1 did not submit any explanation to the show-cause notice issued with regard to the dishonor of remission of PF contribution. Hence, the same would prove that the accused has accepted the amount and kept it in the bed room. 17. PW4, who is an Assistant Provident Fund Commissioner, stated that PW1 did not submit any explanation to the show-cause notice issued with regard to the dishonor of remission of PF contribution. Section 7-A enquiry was initiated and summons were issued to PW1. An explanation was received from him in answer to the said summons, wherein he sent the photocopy of the letter submitted to the ESI, Deputy Commissioner of Labour, which is the letter mentioned in Ex. P5, about the closure of his establishment on 1.4.2013. He forwarded the said explanation of PW1 to the accused since she was the jurisdictional officer to verify the correctness of closure of establishment and to submit inspection report and he posted the matter to 6.5.2014 for final report. 18. The evidence of PW4 also comes in corroboration to the facts stated by P.Ws. 1 to 3 and it also proves that the accused is the jurisdictional officer to submit inspection report after verifying the correctness of the closure of the establishment. The Inspection report shows that she verified about the closure of the establishment and that is the reason for her mentioning about the report submitted to the Deputy Commissioner of Labour informing about the closure of the establishment, which goes to show that she has recommended for dropping the proceedings with regard to the recovery of PF from PW1. The date of inspection as 1.5.2014 might have been mentioned for some convenience of the accused and the same cannot be considered for overthrowing the cogent and non-motivated evidence of PW1 and other witnesses. 19. PW9 is the Central Provident Fund Commissioner, New Delhi, who accorded sanction to prosecute the accused. PW10, who is the neighbour of the accused, spoke about her seeing the CBI officials taking away the accused. He spoke about the accused residing as a tenant in the said house, which belongs to his brother-in-law from 24.4.2014 to 6.5.2014. PW11 is the Senior Scientific Officer, who spoke about the voices of the accused and PW1, but for the reasons already mentioned his evidence cannot be appreciated as the very CD containing the voices is not admissible. 20. PW12 is the Inspector of Police, CBI, Visakhapatnam, to whom PW1 orally informed about the bribe demanded by the accused. PW11 is the Senior Scientific Officer, who spoke about the voices of the accused and PW1, but for the reasons already mentioned his evidence cannot be appreciated as the very CD containing the voices is not admissible. 20. PW12 is the Inspector of Police, CBI, Visakhapatnam, to whom PW1 orally informed about the bribe demanded by the accused. He took a written report from PW1, which was already prepared by DW1 and he is the witness, who prepared the pre trap proceedings and trapped the accused after she received the bribe amount. He conducted the phenolphthalein test which turned positive. The spot explanation of the accused is that she was innocent and immediately thereafter she stated that PW1 himself kept the cover on the table and went away. When he questioned the accused, she replied that she received the cash to give it to her superior officers. Her explanation is not that PW1 himself kept the cover in her bed room. When her explanation is that the cash was kept on the table, she has to render an explanation as to how the said cover came inside the bed room. On the other hand, she stated that she took the cover with the amount in order to give to the superior officers. 21. Hence, all these facts would unerringly point towards the guilt of the accused. When the evidence of PW1 is believed with regard to the demand made by the accused, the rulings relied upon by the petitioner's Counsel, which are to the effect that mere recovery of tainted amount from the accused when substantive evidence is not relied, do not come to the rescue of the accused as the substantive evidence before this Court is found to be reliable. 22. The ruling relied upon by the Counsel for the appellant i.e., B. Doraswamy's case (supra), is to the effect that when on the day of alleged demand if it proved that the accused was away at the conference hall from 10:00 a.m. to 5:00 p.m., the demand alleged to have been made on that date at the residence of the accused found to be false. But in this case, it is not proved by the accused that she did not visit the premises of the accused. But in this case, it is not proved by the accused that she did not visit the premises of the accused. The said aspect was already dealt with and the evidence of PW1 was found to be more reliable than the circumstances put forth by the accused. 23. All the other judgments ruled that mere acceptance of money or recovery thereof de hors, ipso facto, would not be sufficient to bring home the charge under Sections 7 and 13(2) read with 13(1)(d) of the Act. In the case on hand, both acceptance as well as demand by the accused are proved beyond all reasonable doubt. Point No. 3:-- 24. In the result, the criminal appeal is dismissed confirming the judgment, dated 10.12.2015, passed in CC No. 28 of 2014 on the file of the Court of the II Additional Special Judge for CBI Cases, Visakhapatnam. 25. As a sequel, the miscellaneous applications pending, if any, shall stand closed.