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2022 DIGILAW 466 (TS)

Mohd. Fakruddin v. State of Andhra Pradesh

2022-07-21

K.SURENDER

body2022
JUDGMENT : K. SURENDER, J. 1. The appellant is convicted for the offence under Section 7 and Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act of 1988’) vide judgment in C.C. No. 37 of 2001 dated 29.01.2008 passed by the Principal Special Judge for SPE&ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, present appeal is filed. 2. Briefly, the case of the prosecution is that PW-6 had taken a stall in the All India Industrial Exhibition for running ‘Egg Stall’ in the name and style of ‘Sai Krishna Egg Point’ for selling egg based products by paying the bid amount. However, from the beginning, the appellant, who was Sub-Inspector posted in the Out Post of Industrial Exhibition, used to visit the stall and harass PW-6 for paying bribe (mamool). Prior to 01.02.1999, the accused officer demanded an amount of Rs. 5,000/- towards the said mamool and again the accused officer went to the shop on 01.02.1999 and threatened PW-6 that he would complain to the vigilance department and to see to that his shop is closed, if he fails to give the bribe amount. The bribe amount was reduced to Rs. 1,000/- and the accused officer asked PW-6 to pay the same on 04.02.1999 at 4.00 p.m. and threatened of dire consequences on failure to pay the said bribe amount. Since the complainant/PW-6 was not willing to pay the bribe amount, he lodged complaint Ex.P4 to the Deputy Superintendent of Police-ACB. The said complaint was registered at 11.30 a.m. on 04.02.1999 and trap was arranged on the same day. 3. Before adverting to the facts of the present case it is necessary to mention that two crimes were registered and trap laid at the same time simultaneously. The present crime being No. 2/ACB-CR/99 was registered for demand of Rs. 1000/- from PW-6 and the other Crime No. 3/ACB-CR/99 was also registered for demand of bribe of Rs. 1,500/- from one Mr. Sirajuddin (examined as PW-5 in the present case) to run his business smoothly, who is the Proprietor of Sri Raghavendra Marketing Services. The complainants in both the cases i.e. Sri N. Sayanna in Cr. No. 2/ACB-CR/99 and Mr. Sirajuddin in Cr. No. 3/ACB-CR-99 went inside the Police Out Post one after the other and handed over the bribe amount to the appellant. The complainants in both the cases i.e. Sri N. Sayanna in Cr. No. 2/ACB-CR/99 and Mr. Sirajuddin in Cr. No. 3/ACB-CR-99 went inside the Police Out Post one after the other and handed over the bribe amount to the appellant. Two separate pre trap proceedings and post-trap proceedings were drafted by the ACB in the two crimes and two charge-sheets were filed. In both the cases the appellant was found guilty. 4. Coming back to the present case facts, the Deputy Superintendent of Police (PW-8) summoned two independent witnesses PW-4 and PW-7 to act as mediators to the trap. The pre-trap mediators’ report was drafted under Ex.P2 in the presence of the trap party which included the trap laying officer-PW-8 and Inspector-PW-9 who assisted PW-8. 5. The trap party, after concluding the pre-trap proceedings under Ex.P2 at 3.20 p.m. left to the police Out Post of the Industrial Exhibition, which is at a walkable distance from the ACB office. PW-6 was instructed to go to the Out Post where the accused officer would be available and to handover the bribe amount in the event of his demand. Accordingly, after handing over of bribe by both the complainants in both the cases, the trap party entered into the Out Post. Both the complainants were asked to wait outside the outpost. The DSP conducted sodium carbonate solution test and when the accused officer rinsed his fingers in the solution, the solution turned into pink colour. On questioning, the accused officer removed three wads of currency notes of Rs. 100/- from his pocket. Two of the wads were the trap amounts of Rs. 1000/- and Rs. 1500/-. The wearing uniform of the accused officer was also subjected to sodium carbonate test, which yielded positive result. The resultant solutions and phenolphthalein powder was sealed in accordance with the procedure. 6. PW-5, PW-6 and the appellant were examined during the post trap proceedings. One white paper sheet marked as Ex.P7 was produced by the accused officer in which the collection of amounts from various persons was noted. The noting was in the hand writing of appellant. It was informed by appellant that the said amounts were taken to incur expenses for running the Out Post. The post trap proceedings were concluded and the investigation was handed over to PW-10. 7. After concluding investigation in both the cases, the charge-sheets were filed. The noting was in the hand writing of appellant. It was informed by appellant that the said amounts were taken to incur expenses for running the Out Post. The post trap proceedings were concluded and the investigation was handed over to PW-10. 7. After concluding investigation in both the cases, the charge-sheets were filed. In the present C.C. No. 37 of 2001, the charge was framed for demanding and accepting Rs. 1,000/- from PW-6 (Sayanna). 8. PW-1 was examined to state that the Committee has allotted the stall to the defacto complainant. PW-2 stated that the accused officer was working at the relevant time in the police outpost. PW-3 was examined to mark the sanction order Ex.P1. PW-4 is the mediator, who participated in the pre and post trap proceedings, who was declared hostile to the prosecution case. PW-5 is the complainant in Cr. No. 3/ACBCR/99, who was declared hostile likewise PW-6, Sayanna, the present complainant was also declared as hostile to the prosecution case and he was cross-examined by the prosecution. PW-7 is the other mediator to the pre and post trap proceedings, who was examined for the reason of PW-4 turning hostile to the prosecution case. He did not support the case of the prosecution and further did not identify the A.O. PW-8 is the trap laying officer, who narrated regarding the complaint, pre and post trap proceedings. PW-9 is the Inspector, who conducted investigation after taking it over from PW-8, Deputy Superintendent of Police. PW-10 is the Investigating Officer, who completed the investigation and filed charge-sheet. 9. The mediator and complainants in both the cases turned hostile to the prosecution case disowning any demand or acceptance by the accused officer (complainants in both the cases were examined in both the cases). 10. Learned counsel for the accused officer would submit that the learned Special Judge committed grave error in convicting the accused officer under Section 7 and 13(1)(d) of the Act of 1988 when the prosecution failed to prove both the ‘demand’ and ‘acceptance’ of bribe, and relied upon the following judgments: (i) Banarsi Dass vs. State of Haryana, 2010 (1) ALD (Crl.) 924 (SC) (ii) Subash Parbat Sonvane vs. State of Gujarat, 2002 Cri. L.J. 2787 (iii) Smt. Meena Balwant Hemke vs. State of Maharashtra, AIR 2000 SC 3377 (iv) Parminder Kaur alias P.P. Kaur alias Soni vs. State of Punjab, AIR 2020 SC 3815 (v) Panalal Damodar Rathi vs. State of Maharashtra, AIR 1979 SC 1191 (vi) B. Jayaraj vs. State of A.P. (2014) 13 SCC 55 (vii) Dashrath Singh Chauhan vs. Central Bureau of Investigation, 2018 (2) ALD (Crl.) 952 (SC) (viii) V. Sejappa vs. State by Police Inspector Lokayukta, Chitradurga, (2016) 12 SCC 150 (ix) T.K. Ramesh Kumar v. State through Police Inspector, Bangalore, (2015) 15 SCC 629 (x) State of Kerala vs. C.P. Rao, (2011) 6 SCC 450 The counsel argued the following on the basis of judgments: (a) Mere recovery divorced from circumstances is of no consequence. (b) unless demand is proved the factum of recovery cannot be considered to infer guilt. Both PWs. 5 and 6 even failed to identify the AO. 11. On the other hand, the learned Special Public Prosecutor for ACB submits that the witness PW- 6 was won over and for the said reason of being won over during the course of trial, would not mean that the appellant can be acquitted of the charge for demand and acceptance of bribe. The presumption has to be raised in favour of the prosecution, since the accused officer failed to discharge his burden even by preponderance of probability, the conviction recorded by the learned Special Judge cannot be reversed. In support of his contentions he relied on the following judgments: (i) Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390 (ii) M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 Wherein the Hon’ble Supreme Court has held that in the facts and circumstances, even though the de facto complainant turned hostile to the prosecution case, the court below had correctly convicted on the basis of the other evidence available. 12. The appreciation in a trap case depends upon the facts narrated in each of those cases and the trustworthiness or the reliability of the witnesses has to be assessed before concluding: (i) whether demand was proved. (ii) whether acceptance was proved. (iii) whether there was any pending work. (iv) reasons for false implication. All these factors may be considered in the background of the reliability of prosecution and defense versions, on the basis of evidence on record. 13. (ii) whether acceptance was proved. (iii) whether there was any pending work. (iv) reasons for false implication. All these factors may be considered in the background of the reliability of prosecution and defense versions, on the basis of evidence on record. 13. In the normal circumstances it is assumed that the witnesses are won over and they not supporting the case of prosecution would be at the instance of the accused only. However the fact of hostility cannot be said to be the result of influence by the accused officer only and the initial complaint being false one to implicate the accused, cannot be ruled out. The complainant disowning his earlier statement which was made at the time of complaint and trap, would give rise to a doubt to a Court, as to which version stated by the complainant before the Court or which was initially made is correct. 14. In the present case, Learned Special Judge convicted the accused officer though the witnesses completely turned hostile to the case of the prosecution relying upon the sheet of paper allegedly handed over by appellant at the time of trap, in which the amounts collected allegedly were written by the appellant and the same was marked as Ex.P7. Ex.P7 was disputed by the accused officer during the course of trial and Ex.P7 was marked through PW-7 during the cross-examination by public prosecutor. Learned Special Judge committed an error in marking the said document when the witness had not accepted such seizure. The court cannot mark any document which is denied by the witnesses during the cross-examination. Unless any document is admitted, the same cannot be brought on record. The only option left to the prosecution is to mark the said document through the Investigating Officer or any other witness and prove the document. Mere marking or bringing a document on record will not dispense with the burden of proving it and contents cannot be relied upon. 15. Complete reliance was placed by the learned Special Judge on Ex.P7 paper, in which certain names were written against which amounts were written. The said document was not sent to the hand writing expert to take an opinion regarding the writings in Ex.P7 to be that of the accused herein. None of the persons mentioned in EXP7 were examined to say that such amounts were taken from them. The said document was not sent to the hand writing expert to take an opinion regarding the writings in Ex.P7 to be that of the accused herein. None of the persons mentioned in EXP7 were examined to say that such amounts were taken from them. It cannot be assumed from the writings in EXP7 that the amounts were collected by Appellant. 16. Any statement made by the accused officer during the course of investigation would be inadmissible unless such statement leads to any recovery or finding or discovering a fact. According to the Deputy Superintendent of Police, some papers were produced by the accused officer during post-trap proceedings in which the said paper was found and not consequent to any admission or confession. 17. In the said circumstances the writings in Ex.P7 will not be admissible evidence to look into the said document to find the accused officer guilty. 18. The prosecution has failed to prove the demand and acceptance by producing evidence, which is convincing and beyond reasonable doubt. Mere recovery of the amount from the accused officer will not suffice to draw a presumption under Section 20 of the Act of 1988 to shift the burden on to the accused officer. As already stated, the prosecution has failed to discharge its initial burden of demanding or accepting or agreeing to accept or attempt to accept the bribe amount, for which reason, presumption cannot be raised and as a consequence, the question of the accused officer discharging any burden to prove innocence does not arise. 19. The failure of the prosecution to prove both demand and acceptance beyond reasonable doubt, which ingredients or requirements are necessary to prove the case of demand under Section 7 and criminal misconduct under Section 13(1)(d) of Prevention of Corruption Act, the prosecution fails and the accused officer is entitled to be acquitted. 20. In the result, the conviction and sentence recorded by the Special Judge for SPE & ACB Cases vide judgment in C.C. No. 37 of 2001 dated 29.01.2008 is set aside. Since the appellant is on bail, his bail bonds shall stand cancelled. 21. Accordingly, the Criminal Appeal is allowed. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.