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2020 DIGILAW 282 (AP)

Chatragadda Gopala Rao v. State of A. P.

2020-04-16

U.DURGA PRASAD RAO

body2020
JUDGMENT : Aggrieved by the judgment dated 08.04.2008 in C.C.No.07 of 2004 passed by learned Special Judge for SPE & ACB Cases, Vijayawada, convicting the accused for the offences under Sections 7 & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short, ‘PC Act’) and sentencing him to suffer simple imprisonment for one year and pay fine of Rs.1,000/-on two counts, the accused officer (AO) preferred the instant criminal appeal. 2. The factual matrix of the case is thus: (a) AO worked as Assistant Engineer in A.P.S.P.D.C.L. in Musunur Section of Nuzvid Sub Division, Krishna District from 18.08.2000 to 08.03.2003 and he is a public servant. (b) PW3 – the complainant, who owns Acres 3.68 cents of agricultural land in the name of his son PW2, gave an application for electrical connection to the bore in his lands by paying the necessary fee and taking DDs for Rs.5,000 and Rs.125/-in the name of Deputy Electrical Engineer, Gudiwada and also sent copy to the AO and gave necessary papers to him, but AO did not give an acknowledgement. When PW3 met him, AO demanded Rs.2,000/-as bribe for preparation of estimates. In spite of repeated requests, the AO did not listen him and reiterated his demand for bribe. Finally, on 05.03.2003 in the evening at about 05.00 p.m., PW3 met in his office and again AO reiterated his demand of Rs.2,000/-and instructed PW3 to pay the bribe amount at his house on the morning of 07.03.2003. Unwilling to pay bribe, PW3 gave Ex.P3 written report to PW7 -DSP, ACB, Vijayawada, who after causing discrete enquiries about the antecedents of the AO as well as PW3, registered FIR in Crime No.7/RCT-ACB-VJA/2003, for the offences under Sections 7 and 13 of PC Act under Ex.P12. He followed pre-trap procedure in the presence of the mediators i.e., PW4 and LW6 – N.Moses and laid trap against AO on 07.03.2003 at the house of AO and as per the instructions of PW7, the complainant went to the house of AO and paid the bribe amount to him and came out and gave prearranged signal. Then, the trap party led by PW7 rushed to the house of AO and caught him red-handed and recovered the tainted amount of Rs.2,000/-from his possession. The right hand fingers of AO proved positive to the chemical test conducted by PW7. Then, the trap party led by PW7 rushed to the house of AO and caught him red-handed and recovered the tainted amount of Rs.2,000/-from his possession. The right hand fingers of AO proved positive to the chemical test conducted by PW7. Thus, after completing formalities and investigation, charge sheet was laid against AO. (c) AO was granted bail and he was defended by his counsel. The trial court framed charges under Sections 7 and 13(2) r/w 13(1)(d) of PC Act against the AO and conducted trial. During trial, PWs 1 to 7 were examined and Exs.P1 to P7 were marked and M.Os.1 to 5 were accepted on behalf of the prosecution. On behalf of defence, D.Ws. 1 to 3 were examined and Exs.X1 and X2 were marked. It should be noted that during trial, PW3 the complainant has given a volte face and did not support prosecution case. The essence of his evidence was that AO did not demand him bribe and that as per the advise of one Radha Krishna, Politician, he gave report to DSP but on the date of trap, he went to the house of AO and paid the amount to him saying that as per the instructions of one Suresh, he was paying the amount and AO instructed him to take back the amount but he came out. However, the trial court having regard to the other oral and documentary evidence, particularly the evidence of PW4-the mediator, PW7 – Trap Laying Officer (TLO) and also considering the circumstance that the right hand fingers of the AO showed positive result to the chemical test, has held that the prosecution has established the demand and acceptance of the bribe by AO beyond reasonable doubt and accordingly, convicted and sentenced him as stated supra. Hence, the criminal appeal. 3. Heard learned counsel for appellant and learned Special Public Prosecutor representing on behalf of State. 4. (a) Severely fulminating the judgment of the trial court, learned counsel for appellant would argue that in this case, the prosecution miserably failed to prove the demand and acceptance of the bribe by AO inasmuch as PW3 – the complainant has categorically stated that neither accused nor other employees of the electricity department ever demanded him any bribe for processing his application and he never paid any bribe to the AO or others. When demand is a sine qua non for holding a public servant guilty of the offence under Section 7 of PC Act and the same is wanting in this case, he argued, the trial court ought to have given clean chit to the AO. He placed reliance on the following decisions to contend that the demand is the fulcrum in a trap case and failure to prove the same, entails acquittal of the accused. (i) B.Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 (ii) P.Satyanarayana Murthy v. District Inspector of Police and others (2015) 10 SCC 152 (b) Learned counsel would further argue that though PW3 admitted to have given Ex.P3 complaint, but he pellucidly explained the circumstances under which he had given the complaint. He stated that on the instructions of one Radha Krishna, Politician, he gave the complaint so as to get his work done easily. He further stated that though he did not like to mention that AO demanded bribe, PW7 – the DSP, instructed him to mention in that manner and got prepared the complaint through one of his constables. All these facts, he would emphasize, establish that the AO never demanded bribe from PW3 and he too did not wish to give complaint in those lines. Thus, when the evidence of PW3 is omitted, there is no other evidence worth to name to establish the crucial aspects of demand and bribe sinice none others have followed PW3 to witness what transpired between him and AO at his house on the morning of 07.03.2003. Even if the evidence of Pw4 – the mediator is taken into consideration, it supports the defence case inasmuch as PW4 stated that when questioned by PW7, the AO replied that the amount was forcibly given by PW3 to him. This fact has been confirmed by DW2 also who is the owner and neighbour of AO. Learned counsel would thus reiterate that neither the evidence of PW3 nor the evidence of other witnesses could establish the demand and acceptance of bribe by AO. Unfortunately, the trial court has not considered the evidence on record in right perspective. (c) Nextly, he would argue that there was no official favour pending with AO to demand bribe. Learned counsel would thus reiterate that neither the evidence of PW3 nor the evidence of other witnesses could establish the demand and acceptance of bribe by AO. Unfortunately, the trial court has not considered the evidence on record in right perspective. (c) Nextly, he would argue that there was no official favour pending with AO to demand bribe. He would argue that in the evidence it is borne out that if there is no bore well, the question of granting service connection would not arise at all. In this case, the complainant had no bore well and therefore, the allegation that AO demanded bribe for processing his application for granting service connection to a non-existing bore well is bereft of truth and logic. He, thus, prayed to set aside the judgment of the trial court and acquit the AO. 5. In oppugnation, learned Special Public Prosecutor while supporting the judgment would argue that merely because PW3 for the reasons best known to him, turned hostile and did not support prosecution, that is not the end of the matter and the prosecution with the assistance of other available evidence, could amply establish the factum of demand and acceptance of bribe by AO. He would expatiate that PW3 gave Ex.P3 report wherein he clearly mentioned as if AO demanded bribe. It was a voluntary report given by him to PW7. He was not advised to do so either by the fictitious person Radha Krishna or by PW7. On the otherhand, during pre-trap proceedings he admitted before the mediators that he himself gave the report and avouched the truth of the contents therein. Similarly, during the post trap proceedings also, he made a statement before the members of the trap party that on further demand of AO only he paid the bribe amount to him and came out and gave the pre-arranged signal. These facts have been avouched by PW4 also in his evidence. From these facts, it is evident that the AO had indeed demanded bribe and aggrieved thereby only PW3 lodged report. That is how the demand is established with the other available evidence. So far as the acceptance is concerned, the tainted amount was found in possession of AO and his right hand fingers yielded positive result to chemical test. From these circumstances, the presumption under Section 20 of PC Act could be drawn. That is how the demand is established with the other available evidence. So far as the acceptance is concerned, the tainted amount was found in possession of AO and his right hand fingers yielded positive result to chemical test. From these circumstances, the presumption under Section 20 of PC Act could be drawn. He further argued that AO could not satisfactorily account for the tainted amount in his possession and therefore, the trial court was justified in convicting him. He placed reliance on the decision of Hon’ble Apex Court in M.Narsinga Rao v. State of Andhra Pradesh AIR 2001 SC 318 = MANU/SC/0802/2000 in support of his submissions. He, thus prayed to dismiss the appeal. 6. In the light of above arguments, the point for determination in this appeal is: Whether the conviction recorded by the trial court is factual and legally sustainable? Point: 7. It is trite law that in a trap case, the prosecution shall by cogent evidence establish the two vital ingredients of the offence i.e., demand and acceptance of illegal gratification other than legal remuneration by the accused to enable the court to draw the mandatory presumption under Section 20 of PC Act. In the instant case, PW3 – the complainant during trial made a volte face and did not support prosecution case on the aforesaid two vital aspects of demand and acceptance of bribe. However, the trial court having regard to other available evidence on record, held that the prosecution could establish that there indeed existed the official favour to be performed by the AO towards PW3, he demanded bribe for that purpose and accepted the same. 8. In the light of PW3 turning hostile, the crucial aspect to be considered in this appeal is whether the prosecution could able to establish the vital ingredients of demand and acceptance with the other available evidence and further, since there is no direct eye witness except PW3 for the demand and acceptance of bribe, whether under law these vital ingredients can be said to be proved by indirect evidence to draw a presumption under Section 20 of PC Act. 9. In this context, I perused M.Narsinga Rao’s case (supra 3). 9. In this context, I perused M.Narsinga Rao’s case (supra 3). In that case, the appellant/A.O who was the Manager of Milk Chilling Centre attached to A.P. Dairy Development Corporation was alleged to have received bribe of Rs.500/-from milk transporting contractor (PW.1) during the trap held on 20.04.1989 by the A.C.B officials. PWs.1 and 2 together went to the house of A.O to pay the bribe amount. During trial, they made a volte-face and did not support the prosecution case. PW.1 said he acted as per the behest of one Dr. Krishna Rao. The defence of appellant/A.O was that the tainted currency notes were forcibly stuffed into his pocket. The trial Court and High Court did not believe the plea of A.O and convicted and sentenced the A.O. In the light of those facts and evidence, a question arose before Hon’ble Supreme Court as to whether in order to draw a legal presumption under Section 20 of P.C. Act against A.O, a factual presumption can be taken aid or not. Precisely can a legal presumption be based on a factual presumption? 10. Such a question had arisen because under Section 20 of PC Act, the prosecution need to prove that AO has accepted or agreed to accept gratification (other than legal remuneration), to enable the court to draw the mandatory presumption that he accepted that gratification as a motive or reward for doing an official favour as mentioned in Section 7 of PC Act. Since acceptance could not be proved through the direct evidence of PWs 1 and 2 as they turned hostile, it necessitated Hon’ble Apex Court to consider whether, with the other available evidence on record a factual presumption that the accused received gratification can be drawn and then basing on such factual presumption, whether a legal presumption under Section 20 of PC Act can be drawn. The Apex Court held that such a factual presumption can be drawn with the available evidence and in that process, the illustration (a) of Section 114 of Evidence Act which says that ‘a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing that to be stolen unless he can account for his possession’ can be profitably used. Drawing the spirit from the aforesaid illustration, the Apex Court ultimately held that the other available facts and evidence which were proved could enable the court to draw the factual presumption of acceptance of gratification by the accused and basing on it, drew the legal presumption under Section 20 of PC Act. 11. The above decision applies with all its fours in the instant case as here also PW3 during trial did not support prosecution case. In substance his evidence was that AO never demanded him bribe and that on the date of trap he kept the tainted amount (MO3) on the table in the house of AO saying that as per the demand made by AO through one Suresh, he was giving the said amount and came back. Hence, the crucial question is whether other available facts and evidence could establish the demand and acceptance by the AO. 12. For making a demand, generally there should be an official favour pending with a public servant. In the present case, Ex.P.3 report as well as the evidence of P.W.3 would show that his son i.e., PW2 is having an extent of Acres 3.68 cents of land near Pedacheruvu and Acres 3.00 cents near Pedapaticheruvu. They dug a bore well in Acres 3.68 cents and arranged electric supply unauthorizedly. In order to regularize the said connection, on 24.02.2003, PW3 took DDs for Rs.5000/-and Rs.125/-in favour of DE, Gudiwada and DD for Rs.1,000/-in favour of AAO/ERO, Nuzvidu and executed an agreement and handed over to AAE. So far as other land is concerned, PW3 applied for service connection under Tatkal scheme and enclosed necessary papers and applied to AE in July, 2002. 13. While so, admittedly, the AO worked as Assistant Engineer of Nuzvid sub-division from 18.08.2002 to 08.03.2003 i.e., during the relevant period. Then PW1 – the Assistant Divisional Engineer, A.P.S.P.D.C.L., Tiruvuru, in whose jurisdiction the AO worked deposed that the application dated 19.07.2002 of PW2 – the son of PW3 was pending with the AO. Ex.P1 is the said application. He stated that he does not know the reason for pending of the said application. The above unrebutted facts and evidence would show that as on the date of Ex.P3 report, an official favour was indeed pending with AO as he has to sent estimates in respect of application of PW3. Ex.P1 is the said application. He stated that he does not know the reason for pending of the said application. The above unrebutted facts and evidence would show that as on the date of Ex.P3 report, an official favour was indeed pending with AO as he has to sent estimates in respect of application of PW3. Thus, it has now to be seen whether AO has demanded bribe of Rs.2000/-from PW3. 14. Demand is concerned, we find in Ex.P3 that when he approached AO for electrical connection, he demands Rs.2000/-as bribe for preparing estimates and stated that unless the said amount was paid his work would not be completed. Later, PW3 met him ten times and enquired but he reiterated his demand. On 05.03.2003 also PW3 met the AO at his office at about 5.00 p.m. and enquired about the progress of his work. At that time also, AO stated that his work would be completed if Rs.2000/-was paid to him. Having no other alternative, PW3 agreed to pay him the bribe. However, when come to the evidence, PW3 did not cling to the aforesaid version. He gave altogether a different version. In the chief examination, he stated that no conversation took place between him and AO while presenting application. Two months thereafter, he came to know through AO that it was not possible to obtain service connection since the concerned transformer was overloaded. However, he admits that he gave Ex.P3 report to PW7 and his laying trap. Thus according to him AO did not demand bribe. However, when the other part of his evidence and the evidence of other witnesses is closely scrutinized, it is manifest that PW3 for the reasons best known to him turned hostile and presented a false picture on the aspects of demand and acceptance of bribe, which can be inferred from the following facts and circumstances. (i) In Ex.P3, he clearly stated as if AO demanded him bribe of Rs.2000/-to send estimates relating to his application. In the cross-examination by special public prosecutor, he admitted to have mentioned the said fact in Ex.P3 report. (i) In Ex.P3, he clearly stated as if AO demanded him bribe of Rs.2000/-to send estimates relating to his application. In the cross-examination by special public prosecutor, he admitted to have mentioned the said fact in Ex.P3 report. To a court question, he answered that he is not in the habit of giving false reports; he is also not in the habit of presenting the reports for the events which have not occurred; he does not have any obligations with ACB police; and he is aware that if a false report is given he has to face the consequences. Admittedly, PW3 is a M.Sc. Post Graduate and thus, an educate. Further, in the chief examination itself he stated that in the presence of two mediators and staff, the DSP gave the carbon copy of FIR to mediators and after going through the contents, when they enquired him, he confirmed that the contents of the report were true and correct. (ii) So from the above facts and evidence, it is crystal clear that PW3 himself has voluntarily gave Ex.P3 report wherein he clearly stated that AO demanded him bribe. Had there was no demand on the part of AO, there was no need for him to present a report and admit its contents before the mediators. In that view of the matter, his version in the cross-examination of AO that he met the DSP on the instructions of one Radha Krishna, a politician, and on the advice of ACB constable that in order to strengthen his case, he should mention in the complaint that AO demanded bribe and therefore, he made such mention in his report cannot be believed. Added to it, admittedly Ex.P1 application of PW3 was pending with AO since 19.07.2002. If really a fresh service connection cannot be given on the ground that the concerned transformer was already overloaded or that there was no borewell to the land of the PWs 2 and 3, the application ought to have been rejected at the earliest point of time but it was kept pending for considerable time, which shows that the inordinate delay made by AO was only with an ulterior motive. Thus, there can be no demur that AO indeed made a demand for bribe from PW3. 15. Then acceptance is concerned, as already stated supra, PW3 did not support prosecution case. Thus, there can be no demur that AO indeed made a demand for bribe from PW3. 15. Then acceptance is concerned, as already stated supra, PW3 did not support prosecution case. In the chief-examination his version was that he along with trap party members went to the house of AO on 07.03.2003 and there, the DSP instructed him to go to the house of AO and give the tainted amount to him and come out and give the signal. Accordingly, he alone proceeded to the house of AO and found him in the veranda of his house and enquired about his service connection. AO asked him to come to his office at about 9.00 a.m. Then, he gave the tainted amount to AO saying that as per his demand made through one Suresh he was giving the said amount. When AO questioned him about the amount, he kept the amount on the table and though AO told him to take away the amount he came out of the house and informed to constable. In the cross-examination of special public prosecutor he denied the suggestion that on the further demand of AO only he gave the amount to AO. In the cross-examination on behalf of AO, he reiterated that AO never demanded him bribe earlier or on the date of trap. 16. In the light of above evidence, the question is whether acceptance of the gratification could be said to be established by the prosecution through other available evidence. In this context, the testimony of PW4 – the mediator would show that when the trap party, on receiving the signal of PW3 rushed to the house of AO, they found AO in the veranda of his house. Ex.P7 sketch shows the location of AO and his house. They also found AO holding the cash in his right hand. On chemical test, his right hand fingers proved positive and the denomination and serial numbers of the cash in the hands of AO were tallied with the particulars mentioned in first mediator report. PW4 stated, when enquired AO stated as if PW3 forcibly gave that amount to him. From his evidence, it is clear that the AO was found at veranda with the tainted cash. PW4 stated, when enquired AO stated as if PW3 forcibly gave that amount to him. From his evidence, it is clear that the AO was found at veranda with the tainted cash. The question then is whether PW3 forcibly kept the amount on the table and AO tried to return to him and thereby he came into contact or whether PW3 gave the amount to AO on his further demand. It should be noted that admittedly DSP examined Bhanu Prasad, who is the owner of AO and his neighbour. The AO examined him as DW2. His version is that on the morning of trap, he heard AO and PW3 were talking in a loud manner; PW3 kept the amount on the table of AO; then AO asked PW3 to take away the said amount saying that he does not require the said amount; in the meanwhile, the ACB officials rushed there suddenly and at that time, AO was asking PW3 to take away the amount and he was standing at the veranda. Thus, the crucial fact that is to be noted from the evidence of both PW3 as well as DW2 is that the conversation between AO and PW3 took place at the veranda of the house of AO and there, PW3 allegedly kept the tainted amount on the table saying that as demanded by AO through one Suresh he was paying the amount. AO asked him to take away the amount but PW3 rushed out and in order to return him the money, AO held the cash with his right hand. This is the explanation sought to be projected by the AO to contend that he never demanded the money and PW3 forcibly kept the same on the table and in order to return the said amount to PW3 only he touched the said amount. However, the fallacity of the version of PW3 and DW2 and the defence of AO is writ large from Ex.P7 rough sketch. It should be noted that according to PW3 and DW2, PW3 met AO at the veranda and kept the amount on the table. However, as per Ex.P7, no table or other furniture was available in the veranda but the table was present in the adjacent hall. Ex.P7 was prepared by PW7. It should be noted that according to PW3 and DW2, PW3 met AO at the veranda and kept the amount on the table. However, as per Ex.P7, no table or other furniture was available in the veranda but the table was present in the adjacent hall. Ex.P7 was prepared by PW7. In his cross-examination, no specific suggestion was given to him that there was a teapoy or table in the veranda of AO. It was also not suggested to him that the contents in Ex.P7 were false. What was questioned to him was that Ex.P7 sketch does not show the existence of chair in the veranda. The existence or non-existence of chair in the veranda does not make any difference because it is the emphatic case of PW3 and DW2 that the tainted amount was kept by PW3 on the table in the veranda but not on the chair. However, there was no such table or at least teapoy in the veranda. Therefore, the theory propounded by the defence that AO did not demand any amount but PW3 kept the bribe amount on the table is only a myth. In the cross-examination of PW7, a suggestion was given as if PW3 stated before the DSP that he kept the amount on the teapoy in the hall of AO towards expenditure and the DSP deliberately suppressed the said fact in Ex.P8. It should be noted that the said suggestion is another fallacial one because in the cross-examination of PW3 by the AO, it was only elicited that he kept the tainted amount on the table of AO. There was no specific suggestion to PW3 that he kept the amount on the table lying in the hall. When such fact is not elicited from the horse’s mouth of PW3, similar suggestion to PW7 is otious. Therefore, when the theory of PW3 placing the amount on the table is excluded, the obvious conclusion that follows is that PW3 has directly handed over the tainted amount to AO on his demand and that was how AO came into contact with the said amount. Therefore, the prosecution with the other available circumstantial evidence established the acceptance of the gratification from PW3. While acceptance is established, the mandatory presumption under Section 20 of PC Act squarely follows. Hence, it has to be seen whether AO could dispel the presumption. 17. Therefore, the prosecution with the other available circumstantial evidence established the acceptance of the gratification from PW3. While acceptance is established, the mandatory presumption under Section 20 of PC Act squarely follows. Hence, it has to be seen whether AO could dispel the presumption. 17. To ward off the presumption, firstly it is argued that AO never demanded bribe and it is only on the instructions of DSP that PW3 should invariably mention that AO demanded bribe that PW3 gave a false report. PW7 – the DSP denied the said suggestion. Therefore, this contention cannot be accepted. 18. The next contention is that there was no bore well to the land of PW3 without which the question of granting service connection does not arise and therefore, question of demanding bribe also does not arise. This argument does not hold water because the evidence of PWs 2 and 3 would show that their land contains a bore well and along with the application, they filed a certificate issued by the village secretary to that effect. At the outset, the arguments advanced by the appellant/AO are not formidable enough to shutter the prosecution case. The decisions cited by him also do not advance his cause. 19. So on a conspectus, I find no illegality or irregularity in the judgment of the trial court. Therefore, this criminal appeal is dismissed by confirming the conviction and sentence passed by the trial court in C.C.No.07 of 2004 on the file of Special Judge for SPE & ACB Cases, Vijayawada. The Registry is directed to transmit the judgment and record to the trial court at the earliest and the trial court shall issue NBW against AO to secure his presence and commit him to the jail for serving sentence.