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2020 DIGILAW 52 (TS)

D. Pullaiah v. State Of A. P.

2020-01-10

K.LAKSHMAN

body2020
JUDGMENT K Lakshman, J. - Feeling aggrieved by the judgment, dated 02.05.2006, passed by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in Calendar Case No.2 of 2001, wherein and whereby, the appellant - Accused Officer was found guilty of the charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and convicted him of the said charges, he preferred the present appeal. Vide the said judgment, the trial Court sentenced the Accused Officer to undergo rigorous imprisonment for a period of one (01) year and to pay a fine of Rs. 1000/- (Rupees one thousand only) and in default to undergo simple imprisonment for a period of one (01) month under each count. Both the sentences of imprisonment were ordered to run concurrently. 2. The facts of the case are as under: 3. Accused Officer - Mr. D. Pullaiah worked as Junior Assistant in the Office of the Mandal Revenue Officer (MRO), Mallial Mandal, Karimnagar District at the relevant point of time. 4. Pw.1 - de facto complainant - Mr. K. Mallesham is the resident of Mallial village. He is the owner of Ac.1.00 in Survey No.260. He applied for pahani copies on 21.07.1998 in the office of the MRO, Mallial. The said application was forwarded to the Accused Officer by the Office Superintendent. Thereafter, the Accused Officer demanded an amount of Rs. 1,350/- (i.e. Rs. 50/- per year for 26 years) towards bribe on 11.09.1998 from PW.1 for the purpose of furnishing pahani copies. The Accused Officer reiterated his demand on 16.09.1998 also and requested PW.1 to get the said amount on 18.09.1998. 5. Since PW.1 was disinterested in meeting the said demand of bribe, he approached the ACB Officials by way of lodging Ex.P3 - complaint, dated 17.09.1998. Thereafter, PW.8 - DSP, ACB, Karimnagar Range, Karimnagar laid trap by following due procedure. After completion of investigation, the ACB Officials laid charge sheet against the Accused Officer and the same was taken on file vide C.C. No.2 of 2001. 6. During trial, the prosecution examined as many as nine (09) witnesses i.e., PWs.1 to 9, marked Exs.P1 to P9 and MOs.1 to 8 were exhibited. In support of defence, the Accused Officer examined four (04) witnesses i.e., DWs.1 to 4 and marked Ex.D-1. Exs.X1 and X2 were also marked. 6. During trial, the prosecution examined as many as nine (09) witnesses i.e., PWs.1 to 9, marked Exs.P1 to P9 and MOs.1 to 8 were exhibited. In support of defence, the Accused Officer examined four (04) witnesses i.e., DWs.1 to 4 and marked Ex.D-1. Exs.X1 and X2 were also marked. 7. After completion of the trial and on consideration of evidence both oral and documentary, the trial Court found the Accused Officer guilty of the aforesaid charges and accordingly convicted him vide impugned judgment, dated 02.05.2006 in C.C. No.2 of 2001 and imposed the punishment in the manner stated supra. 8. Feeling aggrieved by the said conviction and imposition of sentences of imprisonment, the Accused Officer preferred the present appeal. 9. Heard Mr. Prabhakar Peri, learned counsel for the appellant and Mr. T.L. Nayan Kumar, learned Additional Standing Counsel - cum - Special Public Prosecutor for ACB Cases for the State of Telangana appearing on behalf of the respondent. 10. According to prosecution, the charge against the Accused Officer is that on 18.09.1998 at about 1.00 p.m. at a Tea Hotel situated near Mandal Revenue Office, Mallial, Karimnagar District, as per his earlier demands on 11.09.1998 and 16.09.1998, the Accused Officer demanded and accepted bribe of Rs. 1,000/- from PW.1 as a motive or reward for doing official favour of furnishing pahani copies pertaining to the land of PW.1. It is also alleged against the Accused Officer that on the same day, by corrupt or illegal means or otherwise abusing his official position as a public servant, the Accused Officer obtained the said amount of Rs. 1,000/- from PW.1 as illegal gratification for the purpose of issuance of pahani copies, official favour that was pending with the Accused Officer. 11. Pw.1- de facto complainant lodged Ex.P3- complaint scribed by his son - K. Mohan. Vide Ex.P3 complaint, PW.1 complained about applying of pahani copies on 21.07.1998 and for furnishing the said pahani copies, the Accused Officer demanded an amount of Rs. 1,000/- towards bribe. He has narrated the said demand of bribe, the official favour that was pending with the Accused Officer at the relevant point of time in Ex.P3 complaint and reiterated the same in his deposition. PW.1 further deposed that he has approached the ACB Officials on 17.09.1998 along with his nephew, met the ACB Officials, explained to them about the demand of bribe by the Accused Officer. PW.1 further deposed that he has approached the ACB Officials on 17.09.1998 along with his nephew, met the ACB Officials, explained to them about the demand of bribe by the Accused Officer. ACB Officials then requested PW.1 to get a written complaint by mentioning what all transpired between the Accused Officer and PW.1 with regard to demand of bribe. The ACB Officials have also requested PW.1 and his nephew to come along with proposed bribe amount on 18.09.1998. Accordingly, PW.1 got prepared Ex.P3 complaint through his son Mr. K. Mohan. 12. On perusal and analysis of the depositions of prosecution witnesses that there is no dispute with regard to submission of Ex.P1 application along with Ex.P2 affidavit by PW.1 in the office of MRO, Mallial Mandal for issuance of pahani copies. Ex.P3 is the complaint and according to it, the Accused Officer made PW.1 to go over to the office of MRO, postponing the issuance of pahani copies. Therefore, he made a complaint to the MRO, who in turn called the Superintendent and the Accused Officer, instructed them to issue pahani copies to PW.1 immediately. Even then, according to PW.1, the Accused Officer did not issue pahani copies and on the other hand, demanded to pay bribe on 11.09.1998 and reiterated the same on 16.09.1998. The Accused Officer requested PW.1 to get the said amount on 18.09.1998. Admittedly, there are corrections in Ex.P3 complaint which are visible to the naked eye. In Ex.P3, the date 17' is corrected as 18' while the date 16' as 17'. Mr. K. Mohan, son of PW.1, is the scribe of Ex.P3. The prosecution did not examine the said Mr. K. Mohan for the reasons best known to it. According to PW.1, he approached PW.8 - DSP, ACB on 17.09.1998 and narrated the entire facts. Thereafter, PW.8 requested him to bring a written complaint along with proposed bribe amount on 18.09.1998. Accordingly, PW.1 got prepared Ex.P3 complaint through his son - Mr.K. Mohan and approached PW.8 on 18.09.1998 along with his nephew (PW.2). He has also handed over the complaint to PW.8 on 18.09.1998, whereas PW.8 - DSP deposed that PW.1 came to him on 17.09.1998 at 5.00 p.m. along with Ex.P3 written complaint. PW.8 further deposed that after verification of the same, after discreet enquiries, obtained permission to register a case. He has also handed over the complaint to PW.8 on 18.09.1998, whereas PW.8 - DSP deposed that PW.1 came to him on 17.09.1998 at 5.00 p.m. along with Ex.P3 written complaint. PW.8 further deposed that after verification of the same, after discreet enquiries, obtained permission to register a case. He has instructed PW.1 to come in the morning of 18.09.1998 along with proposed bribe amount on 17.09.1998 itself in the evening. Thus, there is a discrepancy with regard to lodging of Ex.P3 complaint by PW.1 and receipt of the same by PW.8. It is a major discrepancy. There is no explanation by the prosecution to the said discrepancy. More over, as discussed supra, there are corrections in Ex.P3 complaint which can be seen through the naked eye, regarding dates viz., 16' corrected as 17' and 17' corrected as 18'. Ex.P3 also discloses the fact that PW.8 received the complaint on 17.09.1998 at 17:00 hours and he registered the case on 18.09.1998 at 09.00 hours. 13. By pointing out the said major discrepancies, the learned counsel for the appellant would contend that the ACB Officials have not conducted the entire trap proceedings in a fair manner and they have conducted the trap proceedings to suit their convenience so as to implicate the Accused Officer falsely. As stated above, there is no explanation by the prosecution with regard to the said discrepancies. But, it is contended by the learned Special Public Prosecutor that the said discrepancy is minor in nature and it can be ignored in view of proving trap and recovery of tainted amount. 14. According to PW.1, PW.2, his nephew, came to PW.1 house on 18.09.1998 and at his request PW.2 accompanied him to the ACB Office. Whereas, PW.2, during cross-examination, admitted that on 18.09.1998 at Mallial Bus Stop, PW.1 met him and took him to the ACB Office at Karimnagar, asking him to accompany him (PW.1). PW.1 explained the purpose of going to ACB office to PW.2 after reaching the ACB Office. PW.2 further admitted that at about 7.00 a.m., PW.1 met him at Mallial Bus Stop. There is also serious contradiction with regard to the said meeting of PWs.1 and 2 and there is no explanation to the same by the prosecution. PW.1 explained the purpose of going to ACB office to PW.2 after reaching the ACB Office. PW.2 further admitted that at about 7.00 a.m., PW.1 met him at Mallial Bus Stop. There is also serious contradiction with regard to the said meeting of PWs.1 and 2 and there is no explanation to the same by the prosecution. By referring the said discrepancies and contradictions, the learned counsel for the appellant would submit that the same are major discrepancies that create suspicion in laying the trap against the Accused Officer. According to him, PW.2 was working as Teacher at Srirampally on the date of trap and it was a working day and, therefore, the question of PW.1 meeting PW.2 on 18.09.1998 does not arise and that the ACB Officials implicated the Accused Officer in a false case in collusion with each other. The above stated discussion would clinchingly establish that there are major discrepancies in submission of Ex.P3 complaint and receipt of the same by PW.8 - DSP, ACB and also with regard to meeting of PW.2 with PW.1. There is no proper explanation from the prosecution which tilts their case. 15. The next contention of the learned counsel for the appellant is that though PW.1 submitted Ex.P1 application on 21.07.1998, he has not complied with the required formalities, such as submission of folios etc. According to PW.5 - Office Superintendent in the MRO Office, Mallial Mandal, Karimnagar District, copies of pahanies are to be issued within 15 days from the date of submission of application as per G.O.Ms.No.509. He has also deposed that one month after submission of Ex.P1 application, on the complaint of PW.1, PW.4 called him and the Accused Officer and directed them to issue pahanie copies to PW.1. During cross-examination, PW.5 categorically admitted about the shortage of staff in the office at the relevant point of time, and on 18.09.1998 there was only the Accused Officer working as Junior Assistant in their office. 16. Ex.D1 is the certified copy of pahani in respect of land in Sy.No.260 of Madyampally village belongs to PW.1 and it relates to 27 years. The date of application is mentioned as 21.07.1998, deposit of folios as 12.12.1998, application made ready on 26.12.1998, delivered on 27.12.1998 and the same relates to Ex.P1 - application submitted by PW.1. 16. Ex.D1 is the certified copy of pahani in respect of land in Sy.No.260 of Madyampally village belongs to PW.1 and it relates to 27 years. The date of application is mentioned as 21.07.1998, deposit of folios as 12.12.1998, application made ready on 26.12.1998, delivered on 27.12.1998 and the same relates to Ex.P1 - application submitted by PW.1. He has also admitted that whenever there is deficit Court fee, they will collect the same and then only issue the copies. The Accused Officer has stated with PW.4 that Ex.P1 does not contain correct Court fee and it was with deficit Court fee and even folios were not submitted. 17. By referring the above said depositions, the learned counsel for the appellant would strenuously contend that PW.1 despite submitting Exs.P1 and P2 application and affidavit did not comply with other requirements for issuance of pahani copies. Admittedly, required folios were not submitted. On complaint made by PW.1, PW.4 - MRO called Superintendent and the Accused Officer and instructed them to issue pahani copies to PW.1. On such instructions, the Accused Officer informed PW.4 that PW.1 did not file the required folios and did not comply with other requirements for issuance of pahani copies. Admittedly there was no further complaint made by PW.1 to PW.4 - MRO, or any Higher Officials complaining about non-issuance of pahani copies despite instructions given by PW.4 - MRO to furnish pahani copies to PW.1. According to PW.1, he made complaint to ACB Officials directly. The said lapses were not explained by the prosecution by producing any cogent evidence or by examining any independent witness. PW.3, one of the mediators, admittedly turned hostile. PW.7, another mediator, categorically admitted that he has not put the date beneath his signature in Ex.P4. In Ex.P5, in the last page only his signature and the signature of PW.3 are made and the date under his signature was corrected as 19' from 18'. Thus, there are corrections at every stage and by referring the same, the learned counsel for the appellant would contend that ACB Officials have not conducted proceedings in a fair manner. There is no explanation to the said major discrepancies, such as corrections regarding the dates in Ex.P3 complaint viz., 16' to 17' and 17' to 18'. 18. As per ACB Manual, ACB Officials have to conduct discreet enquiries with regard to genuineness of complaint made by complainants. There is no explanation to the said major discrepancies, such as corrections regarding the dates in Ex.P3 complaint viz., 16' to 17' and 17' to 18'. 18. As per ACB Manual, ACB Officials have to conduct discreet enquiries with regard to genuineness of complaint made by complainants. In the present case, though PW.8 deposed that he has conducted discreet enquiries, there is no disclosure of the same at any where including Exs.P3 and P8 and also in the charge sheet. For the first time, PW.8 deposed about conducting discreet enquiries in his evidence. Admittedly, owner of the Hotel, where the trap was laid, was not examined by the prosecution for the reasons best known to it. There is no explanation by the prosecution. On the other hand, the Accused Officer examined the owner of the said Hotel as DW.1, who deposed that the other man sitting opposite Accused Officer in the Hotel and both of them conversing. DW.1 could hear the words of the Accused Officer as he loudly questioning that man as to what he was doing. DW.1 further deposed that he also found that person was placing some amount in front of the Accused Officer on the table and the Accused Officer was refusing it. Thus, it was continuing reflecting that the said person was pleading the Accused Officer to receive it and the Accused Officer was refusing to receive it. Nothing contra was elicited from DW.1 to favour the prosecution except saying that his deposition was contrary to the statement recorded by ACB Officials under Section 161 of Cr.P.C. and won over by the Accused Officer. 19. Pw.8 - DSP, ACB did not verify the Pahani Register available in MRO office after the trap as to whether PW.1 was owner of the extents shown in Ex.P1. 20. The defence taken by the Accused Officer is that PW.1 thrust the amount of Rs. 1000/-. It is also contended that the Accused Officer was implicated in a false case by the local politicians with the help of PW.1 and ACB Officials. The Accused Officer examined Mr. R. Durga Prasad, owner of Durga Vilas Hotel at Mallial, Karimnagar and he deposed in the manner stated above. 21. The Accused Officer also examined DW.2 - Mr. D. Krishna Rao, a retired Junior Assistant. He deposed that he knew the staff in the MRO's office very closely. The Accused Officer examined Mr. R. Durga Prasad, owner of Durga Vilas Hotel at Mallial, Karimnagar and he deposed in the manner stated above. 21. The Accused Officer also examined DW.2 - Mr. D. Krishna Rao, a retired Junior Assistant. He deposed that he knew the staff in the MRO's office very closely. At about 12.00 noon or 12.30 p.m., he went to Mallial MRO Office to see his colleagues and when he got down form the bus, he found the Accused Officer proceeding to the Hotel. He further deposed that he went to the very same Hotel to have tea and found that the Accused Officer sitting at a table, opposite him, a person was sitting and that person was pushing currency notes towards the Accused Officer requesting him to receive it. But, the Accused Officer was refusing to receive the same and pushing the same back. At that juncture some persons claiming as police personnel in mufti came and asked everybody to go out except the Accused Officer. During cross-examination, DW.2 admitted that he went to the MRO Office casually and further admitted with regard to placing the amount by the other person and the Accused Officer refusing to receive it. Nothing contra was elicited by the prosecution during his cross-examination favoring to it. 22. Dw.3 - Mr. J. Mallaiah, Deputy MRO and Full Additional Charge of MRO, Mallial Mandal, deposed about production of pahani patrikas for the years from 1970-71 to 1995-96 on the summons issued by the Court. He further deposed that name of PW.1 was not recorded in the pahani patrikas either as Pattadar or Cultivator concerning Sy.No.260 for the years 1970 to 1973, but his name was recorded as pattadar in pahanies for the years 1985 to 1988 except for the year 1986-87. In the pahani for the year 1989-90 against his name, extent is corrected from 1 acre to 2 acres. There was correction under Column No.14 in the extent of PW.1 against Sy.No.260 in pahani for the year 1990-91. He further deposed that he cannot say whether the names against Sy.No.260 under Col.No.11 in the pahani for the year 1976-77 were subsequently added after the name of Laxma Reddy. 23. During cross-examination, DW.3 has admitted that by virtue of G.O.Ms.No.509, within 15 days from the date of application for issuance of certified copies of pahanies, they are to be provided. 23. During cross-examination, DW.3 has admitted that by virtue of G.O.Ms.No.509, within 15 days from the date of application for issuance of certified copies of pahanies, they are to be provided. In the event of noncompliance of requirements for issuance of pahani copies, the objections, if any, would be recorded on the application and a memo would be issued to the application with a request to comply the same. 24. Dw.4 - Mr. N. Tirumala Rao, Junior Assistant in the Office of MRO, Mallial, deposed about maintenance of certified copies issue Register for the years 1998, 1999 and 2000. As per the said pahanies, at page Nos.16 and 17 against Sl.No.47, name of PW.1 is shown and he sought certified copies of pahanies for the years from 1970-71 to 1996-97. He has applied for certified copies of pahanies on 21.07.1998, submitted it on 12.12.1998 and received the copies on 27.12.1998 and PW.1 filed 104 folios. 25. By referring the said depositions of defence witnesses, the learned counsel for the appellant would contend that PW.1 did not submit the required folios and did not comply with the mandatory requirements for furnishing certified copies of pahanies. According to him, the name of PW.1 was not there in the Cultivator's Column. By referring the same, the learned counsel for the appellant would contend that PW.1 insisted the Accused Officer to incorporate his name and issue pahani copies, to which the Accused Officer did not accede. The learned counsel also would reiterate his submissions about major discrepancies. On the other hand, the learned Special Public Prosecutor would contend that the defence witnesses are planted by the Accused Officer to get over from the guilt and their evidence is not trustworthy. The defence theory of thrusting and demand of PW.1 to incorporate his name and issue pahanie copies, as contended by the Accused Officer is an after thought. According to learned Special Public Prosecutor, there is no spot explanation to the said effect and for the first time, the Accused Officer has taken the said defence by keeping himself silent all through. 26. It is settled principle that the Accused Officer needs not disclose his defence and non-disclosure of his defence in the spot explanation is not advantage to the prosecution and the prosecution cannot take shelter under it. 26. It is settled principle that the Accused Officer needs not disclose his defence and non-disclosure of his defence in the spot explanation is not advantage to the prosecution and the prosecution cannot take shelter under it. The prosecution has to prove the guilt of the Accused Officer beyond reasonable doubt like any other criminal case. 27. On the analysis of the depositions of DWs.1 to 4 and on perusal of the documents would reveal that the name of PW.1 was not appearing in cultivator's column in respect of Sy.No.260 and that he has not submitted the required folios along with Exs.P1 and P2. In fact, he submitted the said deficit folios in the month of December, 1998 i.e. after the trap. 28. It is also settled principle that initial burden lies on the prosecution to prove the twin requirements of demand and acceptance of bribe which are sine qua non to prove an offence under Section 7 of the Act. But, in the present case, the prosecution did not examine any independent witness to prove the same. Admittedly, as discussed supra, there are major discrepancies in the depositions of PWs.1, 2 and 8. 29. On the other hand, the learned Special Public Prosecutor supporting the impugned judgment would contend that the Accused Officer demanded and accepted the bribe amount from PW.1. There is no intimation by the Accused Officer to PW.1 about furnishing of deficit Court Stamps and required Folios for furnishing certified copies of pahanies. The said contention of non-furnishing of deficit Court fee and Folios etc. was invented by the Accused Officer in order to get over from the criminal liability. The prosecution proved its case through the evidence of prosecution witnesses coupled with Exs.P3, 4 and 5 beyond reasonable doubt. The defence witnesses examined as DWs.1 to 4 are planted witnesses and, therefore, their evidence cannot be believed. Thus, in view of proving demand by the prosecution beyond reasonable doubt, a presumption under Section 20 of the Act can be drawn in favour of the prosecution and against the Accused Officer. According to him, the trial Court having considered the entire material on record, both oral and documentary, recorded the conviction and imposed the sentences of imprisonment on the Accused Officer vide the impugned judgment and the same does not warrant interference by this Court. 30. According to him, the trial Court having considered the entire material on record, both oral and documentary, recorded the conviction and imposed the sentences of imprisonment on the Accused Officer vide the impugned judgment and the same does not warrant interference by this Court. 30. But, as discussed above, there are major discrepancies and corrections regarding dates in Ex.P3 - complaint and contradictions in the depositions of PW.1, PW.2 and PW.8. There is no proper explanation from the prosecution to the said discrepancies and contradictions, which are major in nature. It is well settled principle that mere recovery of tainted currency notes is not sufficient to base conviction and that the prosecution has to prove the guilt of the Accused Officer, like any other Criminal Offences with cogent evidence. In the case on hand, the prosecution miserably failed to prove the same. 31. As discussed supra, the prosecution failed to prove the demand itself, and therefore, the question of drawing presumption under Section 20 of the Act does not arise. The presumption under Section 20 of the Act is a re-buttable presumption and in the present case, the Accused Officer has rebutted the same by examining DWs.1 to 4 and also by filing Ex.D1 certified copy of pahanies. He was successful in disproving the charges levelled against him. Therefore, the contention of the learned Special Public Prosecutor with regard to presumption under Section 20 of the Act is unsustainable. 32. In the said circumstances, it can be inferred that the prosecution has miserably failed to prove its case beyond reasonable doubt and, therefore, the finding of the trial Court recording conviction is unsustainable. 33. In the result, the present Criminal Appeal is allowed and the conviction and sentences recorded by the Principal Special Judge for SPE & ACB Cases, Hyderabad, in Calendar Case No.2 of 2001 vide judgment dated 02.05.2006 against the appellant - Accused Officer for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988, are set aside. The Accused Officer is acquitted of the above said charges. The Accused Officer is on bail. The Bail Bonds of the Accused Officer shall stand cancelled. The fine amount, if any, paid by the Accused Officer, is ordered to be returned. As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.