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Telangana High Court · body

2020 DIGILAW 471 (TS)

P. Yadaiah v. State, rep by PP.

2020-06-12

K.LAKSHMAN

body2020
JUDGMENT : Feeling aggrieved by the judgment dated 13.10.2006 in C.C.No.9 of 2002 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court at Hyderabad (for short, the trial Court), the appellant preferred the present appeal. 2. Vide the aforesaid judgment, the trial Court convicted the appellant/accused officer for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, the Act). The trial Court sentenced the appellant/accused officer to undergo Rigorous Imprisonment for one year for the charge under Section 7 of the Act and also to pay a fine of Rs.500/-, and in default, to undergo Simple Imprisonment for two months. The appellant/accused officer is further sentenced to undergo Rigorous Imprisonment for one year for the charge under Section 13(1)(d) punishable under Section 13(2) of the Act and also to pay a fine of Rs.500/-, and in default, to undergo Simple Imprisonment for two months. The trial Court also directed that both the substantive sentences of imprisonment shall run concurrently. 3. It is relevant to note that during the pendency of the present appeal, the sole appellant/accused officer died and his wife was brought on record as legal heir vide order dated 20.12.2019 in I.A.No.2 of 2019. 4. The facts which lead to file the present appeal are as follows: The appellant/accused officer was Administrative Officer in the office of District Medical and Health Office (DM & HO), Sangareddy, Medak District. P.W.1 was an Attender in the Health Department of Medak District. On 22.11.1999, the Medical Officer, Primary Health Centre, Siddapur, surrendered P.W.1 to DM & HO, Sangareddy and he was not given medical leave for the months of October and November, 1997. Therefore, P.W.1 has approached the Andhra Pradesh Administrative Tribunal, Hyderabad against the Medical Officer, PHC, Siddapur and DM & HO, Sangareddy. The Administrative Tribunal has passed an order directing the above said officials to pay the salary for the months of October and November, 1997 to the appellant-accused officer. With the said order, P.W.1 approached DM & HO, Sangareddy, but he did not pay salary and there is no response to the order passed by the Administrative Tribunal. 5. The Administrative Tribunal has passed an order directing the above said officials to pay the salary for the months of October and November, 1997 to the appellant-accused officer. With the said order, P.W.1 approached DM & HO, Sangareddy, but he did not pay salary and there is no response to the order passed by the Administrative Tribunal. 5. Thereafter, P.W.1 met DM & HO, Sangareddy with a request to issue joining proceedings, but DM & HO requested him to withdraw the case pending before the Administrative Tribunal with the promise that joining proceedings would be issued to him on withdrawal of the case. Accordingly, P.W.1 withdrew the said case pending before the Administrative Tribunal. Thereafter, P.W.1 met DM & HO after 15 days of withdrawal of the said case pending before the Administrative Tribunal. On 30.09.2000, DM & HO issued a memo to P.W.1, upon which, P.W.1 asked DM & HO that when he has withdrawn the case, issuance of memo and endorsing the joining report to E-4 Section is not proper. Accordingly, P.W.1 joined in E-4 Section and was working there. Thereafter, several times he met DM & HO and requested to give joining orders, but he refused to do so. DM & HO enquired family background of P.W.1 and then demanded an amount of Rs.2,000/- from P.W.1., for which, P.W.1 told that he is not in a position to pay the said amount and finally, DM & HO agreed to receive an amount of Rs.500/- for issuance of joining report. Then P.W.1 went and met the Administrative Officer and told him that DM & HO is harassing him and asked for money, upon which, the Administrative Officer asked P.W.1 to bring the said money. 6. P.W.1 was not interested to meet the said demand and therefore, approached ACB Officials on 02.11.2000 by way of lodging Ex.P.1-complaint. On receipt of Ex.P.1-complaint, P.W.7-DSP, ACB registered a case and issued Ex.P.12-FIR. Thereafter, a trap was laid by following the due procedure laid down under law including pre-trap and post-trap proceedings. During the trap, the tainted amount of Rs.500/- was recovered from the appellant/accused officer. The chemical test turned positive. 7. On completion of investigation, the ACB Officials filed charge sheet against the accused officer for the above said charges and the same was taken on file by the trial Court vide C.C.No.9 of 2002. During the trap, the tainted amount of Rs.500/- was recovered from the appellant/accused officer. The chemical test turned positive. 7. On completion of investigation, the ACB Officials filed charge sheet against the accused officer for the above said charges and the same was taken on file by the trial Court vide C.C.No.9 of 2002. The appellant-accused officer denied the charges leveled against him and prayed for trial. Accordingly, the trial Court conducted trial. 8. During the trial, the prosecution has examined seven witnesses i.e., P.Ws.1 to 7 and filed Exs.P.1 to 13 documents. Exs.M.Os.1 to 8 were exhibited. The appellant-accused officer has examined Junior Assistant in the office of DM & HO, Sangareddy at the relevant point of time as D.W.1 and no documents were marked on his behalf. 9. After completion of trial and on consideration of entire evidence both oral and documentary, the trial Court convicted the appellant-accused officer and imposed sentences as stated supra. Feeling aggrieved by the said judgment, the appellant-accused officer preferred the present appeal. 10. Heard Sri C.Sharan Reddy, learned counsel representing Sri Mohd.Saleem, learned counsel for the appellant-accused officer and Sri T.L.Nayan Kumar, learned Additional Standing Counsel-cum-Special Public Prosecutor, ACB, Telangana. 11. Impugning the judgment, Sri C.Sharan Reddy, learned counsel representing Sri Mohd.Saleem, learned counsel for the appellant-accused officer, would submit that there was no official favour that was pending with the appellant-accused officer at the relevant point of time and the appellant-accused officer never abused his official position to do any favour to P.W.1. He would further contend that P.W.1 who set the law into motion by submitting Ex.P.1-complaint turned hostile, P.W.2-mediator did not accompany P.W.1 at the time of trap despite specific instructions by P.W.7-trap laying officer and the prosecution failed to examine any witness much less independent witness to prove the demand. It is further contended by him that there are serious contradictions in the depositions of prosecution witnesses. Even as per P.W.3, the file relating to P.W.1 was with DM & HO and the file was recovered from the office of DM & HO. It is further contended by him that the ACB Officials conducted trap in violation of the procedure. Where two views are possible, the view which is beneficial to the appellant-accused officer shall be given, more particularly considering his right to live guaranteed under Article 21 of the Constitution of India. It is further contended by him that the ACB Officials conducted trap in violation of the procedure. Where two views are possible, the view which is beneficial to the appellant-accused officer shall be given, more particularly considering his right to live guaranteed under Article 21 of the Constitution of India. With the said contentions, the learned counsel for the appellant-accused officer prayed to set aside the impugned judgment and acquit the appellant-accused officer by allowing the appeal. 12. On the other hand, supporting the impugned judgment, Sri T.L.Nayan Kumar, learned Public Prosecutor, would contend that the appellant-accused officer has abused his official position by promising P.W.1 to get the work done i.e., payment of salary for the months of October and November, 1997 from DM & HO, Medak at Sangareddy. He would further submit that the trap was proved, recovery of tainted currency notes from the appellant-accused officer was proved and chemical test turned positive. There is no spot explanation offered by the appellant-accused officer during post-trap proceedings. There is no mention about the defence theory i.e., thrust theory taken by the appellant-accused officer in Ex.P.4-post-trap proceedings. Thus, the said defence is an afterthought created for the purpose of present case. He would further submit that the prosecution has proved the very demand of illegal gratification by the appellant-accused officer and therefore, the trial Court rightly drawn presumption under Section 20 of the Act. He would further submit that though P.W.1 turned hostile, his evidence to the extent useful can be relied upon by the prosecution. According to him, on consideration of entire material, the trial Court recorded conviction against the appellant-accused officer, the same is a reasoned order and there is no circumstance or ground to interfere with the same by this Court in the present appeal. With the said contentions, the learned Public Prosecutor prayed to dismiss the present appeal. 13. In view of the said rival contentions, the following points that arise for consideration: (a) Whether the prosecution proved the guilt of the accused under Sections 7 and 13(1)(d) read with Section 13(2) of the Act? (b) Whether the impugned judgment is sustainable both under law and facts? Points (a) and (b): 14. Learned counsel for the appellant-accused officer submits that there was no official favour that was pending with the appellant-accused officer at the relevant point of time. (b) Whether the impugned judgment is sustainable both under law and facts? Points (a) and (b): 14. Learned counsel for the appellant-accused officer submits that there was no official favour that was pending with the appellant-accused officer at the relevant point of time. It is relevant to note that as per Ex.P.1-complaint, appellant-accused officer assured P.W.1 that he would recommend DM & HO to do favour by giving order and to get the said work done from DM & HO. The appellant-accused officer, Administrative Officer has demanded an amount of Rs.500/- from P.W.1 to get the work done. P.W.1 who set the law into motion by lodging Ex.P.1 turned hostile by disowning his own complaint. It is settled principle of law that though the de facto complainant disowned his own complaint, his evidence which is useful can be relied upon by the prosecution. 15. P.W.1 in his chief examination deposed about filing of case and obtaining order for payment of salary for the months of October and November from A.P. Administrative Tribunal and approaching the DM & HO for payment of the said amounts in compliance of the order of the Tribunal. DM & HO requested him to withdraw the case and then only, he will consider payment. Accordingly, P.W.1 withdrew the said case and requested DM & HO to make payment by producing a copy of the withdrawal order from the Tribunal. According to P.W.1, the DM & HO did not make the said payments despite assurance. However, he has joined the duty on 28.10.2000 after 15 days of withdrawal of the said case. He has also deposed about demand of Rs.2,000/- by DM & HO and meeting the appellant-accused officer, Administrative Officer of the said office, who demanded bribe amount. P.W.1 further deposed in chief examination itself that he was not interested to pay the said bribe amount to P.W.1 and therefore, approached ACB Officials by lodging Ex.P.1-complaint on 02.11.2000. 16. It is relevant to note that P.W.1 was declared as hostile on the ground that he rescind from his earlier statement. During cross examination, he has admitted that when he approached the appellant-accused officer, he assured to get the order from DM & HO on payment of Rs.500/- towards illegal gratification by P.W.1. 16. It is relevant to note that P.W.1 was declared as hostile on the ground that he rescind from his earlier statement. During cross examination, he has admitted that when he approached the appellant-accused officer, he assured to get the order from DM & HO on payment of Rs.500/- towards illegal gratification by P.W.1. He has further admitted that on the day of trap also, the appellant-accused officer enquired with him about the said illegal gratification and demanded the same and therefore, P.W.1 gave the said amount of Rs.500/- to him. On receipt of the said amount with his right hand, the appellant-accused officer counted the same and kept in his right side back pant packet. He has admitted about his statement under Section 164 Cr.P.C., before the Magistrate in the very same lines. Thus, the evidence of P.W.1 to the extent of lodging complaint (Ex.P.1) with ACB Officials complaining about demanding of illegal gratification by the appellant-accused officer, making enquiry about getting the said illegal gratification on the day of trap by the appellant-accused officer and handing over an amount of Rs.500/- to him, the appellant-accused officer receiving the same with his right hand, counting of the same and keeping the said amount in his right side back pant packet can be taken as relevant evidence for the purpose of proving demand. 17. P.W.2-mediator, who accompanied P.W.1 to the place of trap, deposed about the admission of contents of Ex.P.1 by P.W.1, demand of Rs.500/- as illegal gratification by the appellant-accused officer and also about trap proceedings. However, he has deposed that he stood at the door of the office room of the appellant-accused officer at the outside. He has further deposed that the appellant-accused officer asked P.W.1 whether he brought the bribe amount on which P.W.1 paid the said amount to the appellant-accused officer who in turn received it. It is relevant to note that nothing contra was elicited from P.W.2 by the prosecution. P.W.4-DSP, ACB (trap laying officer) deposed about receipt of Ex.P.1-complaint, laying trap by following procedure and recovery of tainted currency notes from the appellant-accused officer on the day of trap. It is relevant to note that nothing contra was elicited from P.W.2 by the prosecution. P.W.4-DSP, ACB (trap laying officer) deposed about receipt of Ex.P.1-complaint, laying trap by following procedure and recovery of tainted currency notes from the appellant-accused officer on the day of trap. P.W.5-DM & HO, Medak at the relevant point of time, deposed about the order obtained by P.W.1 from the Tribunal, submission of letter for issuing posting orders and payment of salary for the months of October and November and also informing him about withdrawal of case for giving posting orders. 18. P.W.6-Inspector, ACB who assisted P.W.4 during trap proceedings, conducted investigation. The above stated depositions would reveal that the appellant-accused officer was Administrative Officer in the office of DM & HO, Medak at Sangareddy at the relevant point of time. It is also not in dispute that P.W.1 obtained orders from the Tribunal and he submitted the same to P.W.5-DM & HO with a request to pay salary for the months of October and November and also giving posting order. It is also not in dispute that P.W.5 requested P.W.1 to withdraw the case pending before the Tribunal and assured him that he will issue posting orders and make payment for the months of October and November. It is also not in dispute that on the said assurance of P.W.5, P.W.1 withdrew the said case and submitted a representation along with the copy of the order to P.W.5 with a request to issue posting order and make payment of salary for the months of October and November. P.W.5, during chief examination, deposed about the same. 19. On perusal of entire evidence would reveal that despite specific request from P.W.1, P.W.5 did not issue posting orders and pay the salary for the months of October and November. According to P.W.1, he has approached P.W.5 to do the said favour who in turn demanded an amount of Rs.2,000/- as illegal gratification and therefore, P.W.1 approached the appellant-accused officer, who was Administrative Officer, subordinate to P.W.5-DM & HO to get the said work done. The appellant-accused officer demanded an amount of Rs.500/- to get the said work done. 20. It is also not in dispute that the appellant-accused officer has received an amount of Rs.500/- from P.W.1 on the date of trap and the said tainted currency notes were recovered from him. The appellant-accused officer demanded an amount of Rs.500/- to get the said work done. 20. It is also not in dispute that the appellant-accused officer has received an amount of Rs.500/- from P.W.1 on the date of trap and the said tainted currency notes were recovered from him. It is the contention/defence of the appellant-accused officer that P.W.1 himself thrusted the said amount in his pant packet. Thus, there is no dispute with regard to recovery of tainted currency notes. The above stated depositions would clearly reveal that the appellant-accused officer, being Administrative Officer in the office of DM & HO, was in a position to do official favour to P.W.1 by making recommendation with DM & HO for issuance of posting orders and payment of salary for the months of October and November. In view of the said finding, the contention of the learned counsel for the appellant-accused officer that the appellant-accused officer was not in a position to do official favour to P.W.1 and he never abused his official position cannot be accepted. 21. As discussed supra, the prosecution has proved the pendency of official favour and demand and acceptance of bribe amount from P.W.1 by producing cogent evidence which is probable. However, the learned counsel for the appellant-accused officer would contend that relevant file of P.W.1 was with P.W.5-DM & HO, and the file was recovered from P.W.5 but not with the appellant-accused officer as on the date of lodging of Ex.P.1-complaint and laying of trap. In support of the said contention, the learned counsel for the appellant-accused officer referred the depositions of P.Ws.1, 3 and 5. It is relevant to note that P.W.3 deposed about sanctioned proceedings. P.W.1 specifically deposed about pendency of file with P.W.5 and it is the specific allegation of P.W.1 that the appellant-accused officer, being Administrative Officer in the office of DM & HO, demanded an amount of Rs.500/- towards illegal gratification from him to get the said work done by making recommendation with DM & HO. 22. It is not the case of the prosecution that the appellant-accused officer has to issue posting orders and make payment of salary for the months of October and November. It is the case of the prosecution that the appellant-accused officer, being the Administrative Officer, demanded an amount of Rs.500/- from P.W.1 to get the said work done with DM & HO by making recommendation. It is the case of the prosecution that the appellant-accused officer, being the Administrative Officer, demanded an amount of Rs.500/- from P.W.1 to get the said work done with DM & HO by making recommendation. Ex.P.1-complaint and deposition of P.W.1 disclose the said fact. The appellant-accused officer has examined Junior Assistant of office of DM & HO at the relevant point of time to prove that there was no official that was pending with him as on the date of Ex.P.1 and trap and by then, P.W.5 signed the file on the note put up by the appellant-accused officer. In view of the same, the contention of the learned counsel for the appellant-accused officer that the file was with P.W.5 is not acceptable. 23. It is relevant to note that on the critical analysis of entire evidence, the trial Court gave a specific finding that the prosecution has proved pendency of official favour with the appellant-accused officer beyond reasonable doubt, since the appellant-accused officer promised P.W.1 to get the work done and thus, the appellant-accused officer has abused his official position. In view of the said finding that the prosecution has proved the very demand of illegal gratification beyond reasonable doubt, the trial Court recorded conviction under Section 7 of the Act against the appellant-accused officer by drawing presumption under Section 20 of the Act. The trial Court also gave a finding that there was no spot explanation offered by the appellant-accused officer as per Ex.P.4-post-trap proceedings and there was no protest by him while making endorsement on Ex.P-4. The said findings are reasoned by referring evidence both oral and documentary. This Court is satisfied with the said reasons. 24. The appellant-accused officer has taken the defence of thrust theory. As discussed supra, there is no resistance or protest from the appellant-accused officer while thrusting the said amount of Rs.500/- by P.W.1. There is no spot explanation offered by him in Ex.P.4-post-trap proceedings. The appellant-accused officer has not examined any witness to prove the said thrust theory. Of course, he can remain silent with regard to his defence, but he has to prove the same during the trial. But, in the present case, the appellant-accused officer failed to prove the said thrust theory. The appellant-accused officer has not examined any witness to prove the said thrust theory. Of course, he can remain silent with regard to his defence, but he has to prove the same during the trial. But, in the present case, the appellant-accused officer failed to prove the said thrust theory. The trial Court, on consideration of entire evidence, gave a finding that there is no whisper with regard to the said thrust theory in Ex.P.4- post-trap proceedings, no resistance from the appellant-accused officer while thrusting the said amount by P.W.1. The trial Court further held that for the first time, after lapse of four years, the appellant-accused officer designed the said thrust theory taking advantage of the delay in commencing the trial and therefore, the said thrust theory is not probable. According to this Court, the said finding of the trial Court is based on evidence both oral and documentary. The appellant-accused officer failed to disprove the same. 25. Therefore, the trial Court on holding that the prosecution has proved the demand, recorded conviction under Section 7 of the Act by drawing presumption under Section 20 of the Act. Though it is a rebuttable presumption, the appellant-accused officer failed to rebut the same by producing cogent evidence. In view of the above, the trial Court gave a specific finding with regard to pendency of official favour with the appellant-accused officer and abusing of his official position and also on the demand and acceptance of illegal gratification by the appellant-accused officer. The trial Court also held that the defence of thrust theory taken by the appellant-accused officer is improbable. 26. As stated above, it is relevant to note that during pendency of the present appeal, the appellant-accused officer died and his wife was brought on record as legal heir vide order dated 20.12.2019 in I.A.No.2 of 2019. 27. In view of the above stated discussion, according to this Court, the trial Court rightly recorded conviction against the deceased appellant-accused officer vide the impugned judgment. The appellant failed to make out any ground or circumstance to interfere with the impugned judgment by this Court in the present appeal. The appeal fails and is liable to be dismissed. 28. Accordingly, the appeal is dismissed confirming the judgment dated 13.10.2006 in C.C.No.9 of 2002 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court at Hyderabad.