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2022 DIGILAW 122 (TS)

P. Bhaskar Rao v. State of Andhra Pradesh

2022-03-02

CHILLAKUR SUMALATHA

body2022
JUDGMENT : CHILLAKUR SUMALATHA, J. 1. Disputing the validity and the legality of the judgment that is rendered by the Court of Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, in C.C. No. 39 of 2002, dated 31.10.2007, which stood pending on the file of the said Court, the appellant, who is the accused in the said Calendar Case, is before this Court. 2. Having found the appellant (hereinafter be referred as “the accused” for convenience of discussion and proper understanding) guilty of the offence punishable under Section 7 of the Prevention of Corruption Act, 1988, the learned judge of the trial Court sentenced him to undergo rigorous imprisonment for a period of six months and also to pay fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment for 15 days. Also, having found the accused guilty of the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988, which is punishable under Section 13(2) of the said Act, the learned judge of the trial Court sentenced him to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment for 15 days. It was ordered that both the sentences shall run concurrently. 3. Aggrieved by the above conclusions arrived at, the findings given and the punishment imposed by the learned judge of the trial Court, the accused approached this Court questioning the same. 4. Heard the submission of Sri. Badeti Venkata Rathnam, learned counsel who is appearing for the accused before this Court, and also Sri. T.L. Nayan Kumar, learned Special Public Prosecutor for ACB Cases. 5. The facts of the case, as projected in the charge sheet, in capsule are that PW-1 intended to open a Crackers Shop at Kothagudem. For the said purpose, he visited the Office of the Revenue Divisional Officer, Kothagudem, on 27.10.2001, contacted the accused and enquired from him the procedure for opening such a shop. On obtaining instructions from the accused, PW-1 obtained a challan for Rs. 150/- filled up the application form and met the accused again on 29.10.2001. For the said purpose, he visited the Office of the Revenue Divisional Officer, Kothagudem, on 27.10.2001, contacted the accused and enquired from him the procedure for opening such a shop. On obtaining instructions from the accused, PW-1 obtained a challan for Rs. 150/- filled up the application form and met the accused again on 29.10.2001. The accused prepared four covering letters, i.e. one to Mandal Revenue Officer, Kothagudem, one to Kothagudem Municipality, one to Fire Services, Kothagudem and one to Deputy Superintendent of Police, Kothagudem and handed over all those letters to PW-1 directing him to obtain No Objection Certificates from those authorities. The accused instructed PW-1 to approach him after obtaining the No Objection Certificates from the said authorities. He also informed PW-1 that he would process the application to the District Collector, Khammam. The accused demanded Rs.600/- as bribe for attending the said process. The accused also threatened PW-1 that he will not touch the file unless the demanded amount is paid. On that, PW-1 approached the Inspector of Police, Anti-Corruption Bureau, Khammam on 03.11.2001 at 11 am and lodged a written complaint for taking action against the accused. On the strength of the said complaint, the Deputy Superintendent of Police, Anti- Corruption Bureau, Warangal, registered a case in Crime No. 17/ACB-WKH/2001 on 05.11.2001 at 7.30 a.m. and took up investigation. The Deputy Superintendent of Police, Anti-Corruption Bureau, Warangal, secured PW-2 and LW-3 A.M.B. Subrahmanyam as mediators and laid trap against the accused on the same day at about 11.20 a.m. The phenolphthalein test conducted as per the procedure established by law gave a positive result. The accused, therefore, was arrested and was released on bail on the same day. Thus, the accused rendered himself liable for punishment. 6. On taking cognizance of the offences and on securing the presence of the accused, the trial Court framed the charges against the accused for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, read over and explained them to the accused in Telugu language, for which he pleaded not guilty and claimed to be tried. On that, the trial went on. Subjecting the evidence of PWs. On that, the trial went on. Subjecting the evidence of PWs. 1 to 8, Exs.P-1 to P-16 and M.Os.1 to 8 to scrutiny, the learned judge of the trial Court came to a conclusion that the respondent (hereinafter be referred as “the prosecution” for convenience of discussion and proper understanding) established its case beyond all reasonable doubt and thereby, convicted the accused. 7. Alleging that the prosecution failed to establish its case beyond all reasonable doubt and the same is not considered by the learned judge of the trial Court, the accused projected his grievance before this Court. 8. Thus, in the light of the afore-mentioned factual scenario, the points that emerge for consideration are: (1) Whether the prosecution emerged successful in establishing beyond all reasonable doubt before the trial Court that the accused being a public servant has accepted or obtained from PW-1 a sum of Rs. 600/- as a motive or reward for doing an official act in discharge of his official functions and thereby, committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. (2) Whether the prosecution emerged successful in establishing beyond all reasonable doubt before the trial Court that the accused being a public servant is guilty of misconduct as enshrined under Section 13(1)(d) of the Prevention of Corruption Act, 1988, which is punishable under Section 13(2) of the said Act. (3) Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the accused before this Court, which, in turn, requires the interference of this Court exercising appellate jurisdiction. 9. Point Nos. 1 and 2: As point Nos. 1 and 2 are inter-related and arise on same set of facts and require common discussion, both are taken up simultaneously as under: When the prosecution tried to establish its case before the trial Court through direct evidence and when the prime witness i.e. PW-1 exhibited hostility, then it tried to establish its case through circumstantial evidence and for that, it mainly relied upon the evidence of PW-2. 10. The proceedings commenced through presentation of Ex.P-3-complaint by PW-1. 10. The proceedings commenced through presentation of Ex.P-3-complaint by PW-1. As per the version of the prosecution, in Ex.P-3, which is alleged to have been presented by PW-1, he narrated that he intended to open a Crackers Shop and therefore, on 27.01.2001 he approached the Office of the R.D.O. Kothagudem and met the accused. The accused informed PW-1 that he has to fill up five application forms, take challan for Rs. 150/- obtain No Objection Certificates from the officers concerned and thereafter, to present the same before him. PW-1 obliging the same, took challan for Rs. 150/- on 29.10.2001, filled up the application forms and again met the accused. The accused drafted covering letters and tagged those covering letters to the application forms and directed PW-1 to hand over them to the concerned, take No Objection Certificates from them and thereafter, to submit the same to him. At that time, the accused demanded Rs. 600/- as bribe for processing the application. As PW-1 was not in a position to pay the said amount, he approached the ACB authorities. These are the allegations levelled against the accused. 11. The endorsements which are found on the rear side of Ex.P-3 are three in number. The first endorsement is by the Inspector of Police, ACB, Khammam. The said endorsement reveals that the Inspector of Police received a petition on 03.11.2001 at 11 am and immediately he informed the contents of the petition to the D.S.P. ACB, Warangal over phone and in turn, the D.S.P. instructed him to verify the genuineness of the petition and the antecedents of the accused. The second endorsement is also by the Inspector of Police, ACB, Khammam which is also of the even date. It reveals that the Inspector of Police verified the contents of the petition and found that they were genuine and the accused is awfully corrupt. He informed the same to the Deputy Superintendent of Police, ACB, Warangal, at 4 p.m. over phone. The Deputy Superintendent of Police informed that he is coming on the next day evening and asked him to make ready two mediators for 05.11.2001 to proceed further. The third endorsement is by the Deputy Superintendent of Police, ACB, Warangal at Khammam. He informed the same to the Deputy Superintendent of Police, ACB, Warangal, at 4 p.m. over phone. The Deputy Superintendent of Police informed that he is coming on the next day evening and asked him to make ready two mediators for 05.11.2001 to proceed further. The third endorsement is by the Deputy Superintendent of Police, ACB, Warangal at Khammam. The said endorsement is dated 05.11.2001 at 7.30 a.m. which goes to show that as per the contents of the petition, a case is registered in Crime No. 17/ACB-WKH/2001 under Section 7 of the Prevention of Corruption Act, 1988 and investigation was taken up. By these averments, it is clear that by the time of registration of case, everything was made ready to lay trap. 12. When the version of the prosecution is that Ex.P-3- complaint was presented by PW-1 in written form, PW-1 before this Court gave evidence to the effect that he do not know the contents of the said complaint and it was not in his handwriting. His evidence in this regard is that he submitted a complaint on 03.11.2001 at about 11 a.m. to the Inspector, ACB, Khammam and Ex.P-3 is the complaint and it bears his signature. He states that the said complaint is not in his handwriting. He also states that without explaining the contents of the complaint, his signature was obtained by the Inspector, ACB, Khammam. However, he again states that he informed the mediators that the contents of the F.I.R. were correct. 13. For making the accused liable for punishment, the primary thing that has to be established by the prosecution is that there is demand from the accused for doing an official favour. 14. By the contents of Ex.P-3 as well as by the evidence of PW-1, it is clear that the initial process was completed by the accused at the request of PW-1 without expecting or demanding anything. Even in Ex.P-3-complaint and before the trial Court while giving his evidence as PW-1, he stated to the effect that when he approached the accused, the latter explained him the procedure for submitting application form for opening Crackers shop and as per the procedure explained to him, he has to submit one application in quadruplicate and has to pay Rs. 150/- towards fee by way of challan. 150/- towards fee by way of challan. Also, in Ex.P-3 and in the evidence of PW-1, it is clearly narrated that on 29.10.2001, PW-1 went to the Office of the R.D.O. met the accused and submitted five sets of applications and challan of Rs. 150/- and on that, the accused prepared the covering letters. At this juncture, in Ex.P-3, it is mentioned that the accused demanded Rs. 600/- for processing the applications, but before the Court PW-1 deposed that somebody in the staff of the RDO Office informed him that only on giving Rs. 600/- as bribe, his work would be done. 15. It is not in dispute that not only before the trial Court but also at the initial stage, i.e. after laying trap and after completion of formalities, when the statement of PW-1 was recorded by the Court concerned under Section 164 Cr.P.C. he resiled from his earlier version and failed to support the case of the prosecution. 16. Learned Special Public Prosecutor for ACB Cases strenuously argued that PW-1 was gained over by the accused. A person who has exhibited such honesty and went to the extent of lodging a complaint against the accused to the ACB authorities that too, by approaching the Office of ACB, cannot normally be expected to resile from his earlier statement immediately. It can be believed if the de facto complainant was gained over by the accused after a considerable time or while the matter came up for trial before the Court of law. However, in the case on hand, PW-1 failed to support the version of the prosecution by the time he gave his 164 Cr.P.C. statement before the Court concerned. Therefore, this Court is unable to agree with the version of the prosecution that PW-1 was gained over by the accused and therefore, he failed to support the case of the prosecution either while giving 164 Cr.P.C. statement or while his evidence was recorded by the trial Court. 17. Though it is not of much relevance, yet the fact to be mentioned is that before the trial Court, the learned Special Public Prosecutor has not filed any memo seeking to initiate perjury proceedings against PW-1 and therefore, the trial Court itself ordered such proceedings to be initiated against PW-1. Such an observation is made at Para-20 of the judgment of the trial Court. Such an observation is made at Para-20 of the judgment of the trial Court. However, till now it is not brought to the notice of this Court that such proceedings were initiated against PW-1. 18. As PW-1 resiled from his earlier statement and failed to support the case of the prosecution, there is no other material on record regarding the aspect of demand of bribe by the accused. However, the prosecution emerged successful in establishing that the tainted amount was recovered from the possession of the accused. PW-2 as well as PW-8 deposed that the Deputy Superintendent of Police instructed PW-1 to pay the tainted amount to the accused only on his further demand but not otherwise. PW-1 states that such a demand was made by the accused. The evidence of PW-1 in this regard is that he went into the Office of R.D.O. and found the accused staying in the Computer room. He wished the accused and kept four No Objection Certificates and Rs. 600/- in the hands of the accused, came out and relayed a signal to the trap party. So, PW-1 did not state that such a demand is made by the accused. As per the version of the prosecution, PW-2 witnessed the accused making such a demand and thereafter, PW-1 handing over bribe to the accused. But, as rightly submitted by the learned counsel for the appellant/accused, the presence of PW-2 along with PW-1 becomes highly doubtful. Ex.P-12-Mediators report was heavily relied upon by the prosecution besides the evidence of other witnesses. In Ex.P-12-Mediators report, the following mention is made: “Accordingly both of them proceeded and found entering into the office of R.D.O. at 11.25 a.m. We, the trap party, took vintage positions near the R.D.O. office. At about 11.30 a.m. the complainant came out of the office of the R.D.O. Kothagudem and gave pre-arranged signal to the trap party. On that, the D.S.P. asked the complainant to stay outside the office and along with the mediators, trap party members rushed into the R.D.O. Office.” 19. This makes it clear that the mediators were present outside the Office of the R.D.O. till signal was given by PW-1. Further, in Ex.P-13-Rough sketch the presence of the mediators is nowhere found. On that, the D.S.P. asked the complainant to stay outside the office and along with the mediators, trap party members rushed into the R.D.O. Office.” 19. This makes it clear that the mediators were present outside the Office of the R.D.O. till signal was given by PW-1. Further, in Ex.P-13-Rough sketch the presence of the mediators is nowhere found. As rightly submitted by the learned Special Public Prosecutor, there is no requirement for mentioning in the rough sketch as to where the mediators or others were present. However, in Ex.P-13-Rough sketch, when the places where the accused and others were present and where the de facto complainant i.e. PW-1 was present were clearly mentioned, then it would be incumbent on the part of the prosecution to show where the mediators were present, who as per the version of the prosecution, were present at that time. Thus, absence of narrating the presence of the mediators i.e. LW-3 A.M.B. Subrahmanyam and PW-2 in Ex.P-13-Rough sketch coupled with the averments in the Mediators report i.e. Ex.P-12 clearly makes their presence during the course of transaction highly doubtful. 20. When the judgment of the trial Court is gone through, this Court finds that the learned judge of the trial Court at Para-12 of the judgment made an observation that the Investigating Officer being a public servant will not create a false case or is not interested to speak false and therefore, his evidence can be relied upon. The learned judge of the trial Court observed that the evidence of the Investigating Officer cannot be branded as highly interested on the ground that they want that the accused are convicted and such a presumption runs counter to the well-recognised principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that they being the public servants are interested in the success of their case. This Court agrees with the observation of the learned judge of the trial Court in that aspect in toto. The evidence of public servants that too the Investigating Officer, cannot be discarded on the ground that they are interested in disposal of the case in their favour. This Court agrees with the observation of the learned judge of the trial Court in that aspect in toto. The evidence of public servants that too the Investigating Officer, cannot be discarded on the ground that they are interested in disposal of the case in their favour. This Court does not understand as to why such an analogy is not applied to the prosecution witnesses themselves who are public servants and have supported the accused. 21. PW-3, who is the witness examined on behalf of the prosecution, gave evidence to the effect that he retired from service as Deputy Collector and previously, he worked as R.D.O. in the office of R.D.O. Kothgudem and the accused worked as Senior Assistant in their office. He stated that the procedure for obtaining license for sale of crackers is that the applicant has to file application C Form-4 quadruplicate along with challan and thereafter, letters will be addressed to Fire Station Officer, Deputy Superintendent of Police, Municipal Corporation, Kothagudem and after receiving No Objection Certificates from the officers concerned, proposals will be sent to the District Collector, Khammam for grant of license. 22. PW-3 during the course of cross-examination stated that Ex.P-1-application was received by their office on 29.10.2001 and on the same day, the accused prepared letters and there is no delay in processing the application by the accused. He also stated that unless No Objection Certificates are received, further processing of file cannot be taken up. He also stated that No Objection Certificates were not submitted or received in their office till 05.11.2001. He also deposed that he has not received any complaint against the accused and that, he is a sincere and hardworking officer. 23. The evidence of PW-4, who is a retired Tahsildar, is also to the effect that there is no delay on the part of the accused in processing the application of PW-1. 24. The learned Special Public Prosecutor submitted that the present case rests on circumstantial evidence. Thus, if the case rests on circumstantial evidence, the burden would be heavily on the prosecution. The prosecution is expected to connect each link in the chain which ultimately makes it complete engulfing the accused and that, there should not be any gap which makes the accused point out the lacunae in the case of the prosecution that ultimately improbablises the version of the prosecution. 25. The prosecution is expected to connect each link in the chain which ultimately makes it complete engulfing the accused and that, there should not be any gap which makes the accused point out the lacunae in the case of the prosecution that ultimately improbablises the version of the prosecution. 25. By the discussion that went on supra, this Court finds that such evidence is not produced by the prosecution before the trial Court. Allegations however grave in nature, if they are not established by producing cogent and convincing evidence, the accused cannot be convicted by the Courts of law. Even for raising a presumption under Section 20 of the Prevention of Corruption Act, 1988, the prosecution is required to relieve itself from the initial burden. However, in the case on hand, by the lacunae that are pointed out, the entire case of the prosecution becomes highly doubtful. 26. Though PW-8 contended that the complaint was given on 03.11.2001, it was not registered on the same day. On this aspect, the learned Special Public Prosecutor states that as per the Manual of ACB, without verification, ACB case will not be registered against public servants and therefore, the case was registered against the appellant/accused on 05.11.2001. 27. As per the first endorsement on Ex.P-3, a petition was given on 03.11.2001 at 11 am. As per the second endorsement, it is clear that by 4 pm., on the same day i.e. on 03.11.2001, required verifications were made and the Investigating agency came to a conclusion that the accused is awfully corrupt. Further, it is clear that by that time, the Inspector of Police was instructed by the Deputy Superintendent of Police to secure two mediators. Therefore, by that time, the Investigating agency took a decision to lay trap. This happened even before the registration of the case itself. Though the ACB authorities are not expected to show the process or give the details, yet it cannot be believed that within five hours of presenting the complaint, required verifications were made and conclusion was drawn that the accused is awfully corrupt. When the Investigating Officer i.e. Deputy Superintendent of Police endorses that on registration of case at 7.30 a.m. on 05.11.2001, he took up investigation and trap was laid on the same day at 11 a.m. no investigation was conducted between 7.30 a.m. and 11 a.m. even as per the version of the prosecution. When the Investigating Officer i.e. Deputy Superintendent of Police endorses that on registration of case at 7.30 a.m. on 05.11.2001, he took up investigation and trap was laid on the same day at 11 a.m. no investigation was conducted between 7.30 a.m. and 11 a.m. even as per the version of the prosecution. 28. Having regard to the above aspects, though the learned judge of the trial Court at Para-16 of the judgment observed that the principle of res ipsa loquitur has to be applied, with due respect, that principle cannot be applied in criminal prosecution and convict the accused, that too, when the testimony of the witnesses is not trustworthy. 29. In the light of the above discussion, though the learned counsel for the appellant/ accused and the learned Special Public Prosecutor for ACB cases relied on catena of decisions of different Courts including the Hon’ble Apex Court, yet they require no discussion as the present case does not stand on its own footing basing on the factual scenario as projected by the prosecution. However, as a mention of those decisions is required to be made, it is made as under. 30. The decisions relied upon by the learned counsel for the appellant/accused are as under: (1) Banshi Lal Yadav vs. State of Bihar, AIR 1981 SC 1235 (2) Vishnu Krishna Belurkar vs. State of Maharashtra, 1975 Cri. L.J. 517 (3) K. Giri vs. State, ACB, Hyderabad, 2008 (2) ALD (Crl.) 821 (AP) (4) N. Vijayakumar vs. State of Tamil Nadu, AIR 2021 SC 766 (5) B. Jayaraj vs. State of A.P. 2014 Cri. L.J. 2433 SC (6) M.R. Purushotham vs. State of Karnataka, (2015) 3 SCC 247 (7) Som Prakash vs. State of Punjab, AIR 1992 SC 665 (8) C. Sukumaran vs. State of Kerala, 2015 Cri. L.J. 1715 SC (9) Krishna Chander vs. State of Delhi, 2016 Cri. L.J. 2433 SC (6) M.R. Purushotham vs. State of Karnataka, (2015) 3 SCC 247 (7) Som Prakash vs. State of Punjab, AIR 1992 SC 665 (8) C. Sukumaran vs. State of Kerala, 2015 Cri. L.J. 1715 SC (9) Krishna Chander vs. State of Delhi, 2016 Cri. L.J. 1079 SC The decisions relied upon by the learned Special Public Prosecutor for ACB cases are as under: (1) Neeraj Dutta vs. State (NCT of Delhi), (2019) 14 SCC 311 (2) Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390 (3) Kishan Chand Mangal vs. State of Rajasthan, (1982) 3 SCC 466 (4) Subramanian Swamy vs. Manmohan Singh and Another, (2012) 3 SCC 64 (5) Koli Lakhmanbhai Chanabhai vs. State of Gujarat, (1999) 8 SCC 624 (6) State of Kerala vs. M.M. Mathew and Another, (1978) 4 SCC 65 (7) Chaturdas Bhagwandas Patel vs. State of Gujarat, (1976) 3 SCC 46 (8) M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 31. Thus, the points taken up for discussion are answered holding that the prosecution failed in establishing that the appellant/accused has committed the offences punishable under Section 7 and Section 13(1)(d) which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988. 32. Point No. 3: Having regard to the discussion that went on supra on Point Nos. 1 and 2, this Court holds that the learned judge of the trial Court failed to appreciate the facts of the case in right perspective and thereby, arrived at an unjust conclusion. Thus, the said judgment requires to be set aside by this Court exercising appellate jurisdiction. 33. In the result, the Criminal Appeal is allowed. The accused is found not guilty of the offences charged. Therefore, the accused is acquitted of the said charges under Section 248(1) Cr.P.C. The bail bonds executed by him shall stand cancelled. The fine amount, if any, paid shall be returned to him. 34. As a sequel, pending Miscellaneous Petitions, if any, shall stand closed. No costs.