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2023 DIGILAW 1078 (AP)

State Of A. P. v. Doddi Nagaraju

2023-07-14

A.V.RAVINDRA BABU

body2023
JUDGMENT : The judgment, dated 14.03.2006 in C.C.No.9 of 1999, on the file of Special Judge for SPE & ACB Cases-cum-III Additional District & Sessions Judge, Visakhapatnam (“Special Judge” for short) is under challenge in this Criminal Appeal filed by the State, represented by the Inspector of Police, Anti-Corruption Bureau (“A.C.B.” in short), Visakhapatnam. 2. The respondent herein faced charges under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (“P.C. Act” for short) and the learned Special Judge on conclusion of trial, found the respondent not guilty of the charges and accordingly, acquitted him under Section 248(1) of the Code of Criminal Procedure (“Cr.P.C.” for short), but ordered prosecution of P.W.1 for perjury. 3. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of convenience. 4. The State, represented by the Inspector of Police, Anti-Corruption Bureau, Visakhapatnam, filed a charge sheet pertaining to Crime No.7/RC-WLR/98 of A.C.B., Visakhapatnam Range, alleging in substance as follows: (i) Sri Doddi Nagaraju, the Accused Officer (“A.O.” for short), worked as Mandal Parishad Development Officer, Ravikamatham Mandal, Visakhapatnam District and he was working as such as on 06.03.1998 and he was a public servant within the meaning of Section 2(c) of the P.C. Act. (ii) The work of formation of road from Gompavanipalem Village to its hamlet Village Antlampalem at a value of Rs.1,00,000/- and another work of construction of Community Hall at Gompavanipalem at a value of Rs.1,20,000/- in Ravikamatham Mandal were sanctioned under “Prajala Vaddaku Palana” Scheme. 50% of the value of the work will be in the form of grant and the remaining 50% shall be borne by “Shramadanam” of the Villagers. (iii) Sri Mithana Eswara Rao (P.W.1) was the President of the Habitation Committee. The Accused Officer, being Mandal Parishad Development Officer, Ravikamatham, deposited Rs.50,000/- for road work and Rs.60,000/- for construction of Community Hall in the joint account opened in the names of P.W.1 and Sri K. Tatabbai, Mandal Engineering Officer (P.W.7) in Sri Visakha Grameena Bank, Ravikamatham. (iv) The work of formation of road was taken up by Sri Yeka Ramana (P.W.2) and the work of Community Hall was taken up by Sri Ventakula Arjuna (P.W.3). Before the retirement of P.W.7, on 30.11.1997 he recorded the measurements of the completed works in M-Books, prepared bills and submitted them to the A.O. for issuing cheques. (iv) The work of formation of road was taken up by Sri Yeka Ramana (P.W.2) and the work of Community Hall was taken up by Sri Ventakula Arjuna (P.W.3). Before the retirement of P.W.7, on 30.11.1997 he recorded the measurements of the completed works in M-Books, prepared bills and submitted them to the A.O. for issuing cheques. For the road work, an amount of Rs.7,325/- is to be paid to P.W.2 and for Community Hall work, a sum of Rs.6,868/- is to be paid to P.W.3. On retirement of P.W.7, the A.O. got transferred the amount in the joint account of P.W.1 and P.W.7 into his name by obtaining the signatures of P.W.1 and P.W.7. But, the A.O. did not issue cheques for both the works and kept them pending with him. (v) On 04.03.1998 at 1-30 p.m., P.W.1 along with P.W.2 and P.W.3 met the A.O. and requested him to make payment. The A.O. demanded Rs.700/-, 5% of the bill amount of Rs.14,193/- as bribe and he claimed that cheques will not be issued unless the demanded bribe amount is paid. In spite of requests of P.W.1 to P.W.3, the A.O. did not agree and therefore P.W.1, in consultation with P.W.2 and P.W.3, reluctantly agreed to pay the demanded bribe amount of Rs.700/- to the A.O. and approached Sri N. Saibaba, Deputy Superintendent of Police, Anti-Corruption Bureau, Visakhapatnam (P.W.10) on 05.03.1998 at 3-00 p.m. and submitted Ex.P.1 report. P.W.10 registered Ex.P.1 as a case in the above crime number under the above Sections of law on 06.03.1998 at 7-00 a.m. and arranged for trap. (vi) The A.O. was successfully trapped on 06.03.1998 at 1-35 p.m., in his office and the tainted amount of Rs.700/- (M.O.5) which was lying on a memo, dated 12.02.1998 (Ex.P.15), was picked up by the A.O. from his right side table drawer. The test of both hand fingers of the A.O. and Ex.P.15 memo resulted positive (M.O.3, M.O.4 and M.O.6). (vii) After obtaining Ex.P.29 sanction order, Sri P. Rama Rao, Inspector of Police, A.C.B., Visakhapatnam (L.W.14) laid charge sheet under Sections 7, 11 and 13(1)(d) r/w 13(2) of the P.C. Act. 5. The learned Special Judge on consideration of the material available on record, took cognizance under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act. (vii) After obtaining Ex.P.29 sanction order, Sri P. Rama Rao, Inspector of Police, A.C.B., Visakhapatnam (L.W.14) laid charge sheet under Sections 7, 11 and 13(1)(d) r/w 13(2) of the P.C. Act. 5. The learned Special Judge on consideration of the material available on record, took cognizance under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act. After appearance of the A.O. and after complying the formalities under Section 207 of Cr.P.C., he was examined under Section 239 of Cr.P.C. for which he denied the allegations. Then, the learned Special Judge framed charges under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act against the A.O. and explained the same to him in Telugu, for which he pleaded not guilty and claimed to be tried. 6. To bring home the guilt against the A.O., the prosecution examined P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.41 and further got marked M.O.1 to M.O.7. During cross examination of P.W.1, Ex.D.1 and Ex.D.2 were marked. After closure of the evidence of the prosecution, the A.O. was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the same. He stated that on 06.10.1997 a notice was issued to P.W.1 under A.P.P.R. Act, as such, he bore grudge against him and P.W.2 and P.W.3 also bore grudge against him as they lost works. 7. Accordingly, he filed a written statement before the learned Special Judge contending in substance that by the date of 04.03.1998 the joint accounts stood in the names of P.W.1 and P.W.7 and they were not transferred to the account of A.O., as such, he was not in a position to issue Ex.P.2 cheques for Rs.7,325/- and Rs.6,886/-, as such, the alleged demand for bribe by the A.O. from P.W.1 for a sum of Rs.700/- as on 04.03.1998 is false. In fact, according to Ex.D.1 letter and Ex.D.2 receipt, an amount of Rs.700/- was paid by P.W.1 to the A.O. towards part payment of the hand loan. So, he did not demand any bribe from P.W.1 either on 04.03.1998 or on 06.03.1998. 8. In furtherance of the defence, the A.O. examined D.W.1 and D.W.2. 9. In fact, according to Ex.D.1 letter and Ex.D.2 receipt, an amount of Rs.700/- was paid by P.W.1 to the A.O. towards part payment of the hand loan. So, he did not demand any bribe from P.W.1 either on 04.03.1998 or on 06.03.1998. 8. In furtherance of the defence, the A.O. examined D.W.1 and D.W.2. 9. The learned Special Judge on hearing both sides and on considering the oral as well as documentary evidence, found the A.O. not guilty of the charges framed against him and accordingly, acquitted him under Section 248(1) of Cr.P.C. but, directed prosecution of P.W.1 for the offence of perjury before the jurisdictional Magistrate. Felt aggrieved of the same, the unsuccessful State, filed the present Criminal Appeal, challenging the judgment of acquittal through the learned Standing Counsel for ACB and Special Public Prosecutor. 10. Now, in deciding this Criminal Appeal, the points for determination are as follows: (1) Whether the A.O. was a public servant within the meaning of Section 2(c) of the P.C. Act and whether the prosecution proved a valid sanction to prosecute the A.O. for the charges framed in terms of Section 19 of the P.C. Act? (2) Whether the prosecution before the Court below proved the fact that the A.O. demanded P.W.1 to pay bribe of Rs.700/- to do official favour prior to the date of trap and on the date of trap and accepted the demanded bribe amount and that he was committed criminal misconduct as alleged? (3) Whether the prosecution proved the above charges against the A.O. beyond reasonable doubt? (4) Whether there are any grounds to interfere with the judgment of acquittal recorded by the learned Special Judge? POINT NO.1:- 11. Insofar as this point is concerned, absolutely, there was no dispute before the Court below that the A.O. was a public servant within the meaning of Section 2(c) of the P.C. Act. Apart from this, the prosecution got marked Ex.P.29 sanction by examining P.W.9. The evidence of P.W.9 coupled with Ex.P.29, admittedly, proves that the sanctioning authority having duly considered the material placed before it decided to issue sanction to prosecute the A.O. Even the sanction under Ex.P.29 was not in serious dispute before the Court below, as such, the Court below even found favour with the case of the prosecution insofar as Ex.P.29 sanction is concerned. Apart from this, these aspects are not at all in dispute in this criminal appeal. The point is answered accordingly. POINT Nos.2 to 4:- 12. Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the respondent/State, would contend that P.W.1 to P.W.3 for obvious reasons turned hostile to the case of the prosecution. It is the A.O., who demanded bribe of Rs.700/- and the said amount was arrived at as 5% of the amount due to P.W.1 to P.W.3 and P.W.1 to P.W.3 for obvious reasons did not support the case of the prosecution. The prosecution before the Court below proved the pendency of the official favour. The amount was recovered from the table drawer of the A.O. and even the chemical test that was conducted to both hand fingers of A.O. yielded positive result. The A.O. set up a loan theory by relying on Ex.D.1 and Ex.D.2. P.W.1 admitted Ex.D.1 and Ex.D.2 purposefully in cross examination. Of course, there was a spontaneous version by the A.O. in the post-trap that what he received only towards discharge of loan amount payable by P.W.1. The A.O. had no business to lend the amount to P.W.1. The Court below without proper appreciation of the evidence on record, believed the loan theory. The A.O. failed to explain how he dealt with the tainted amount. With the above submissions, she would contend that as the A.O. dealt with the tainted amount, there arose a presumption under Section 20 of the P.C. Act, as such, the appeal is liable to be allowed. 13. Sri A. Hari Prasad Reddy, learned counsel appearing for the respondent, would contend that the contents in Ex.P.1, Section 161 of Cr.P.C. statement of P.W.1 and further the post-trap proceedings cannot be read in substantive evidence. P.W.1 to P.W.3 did not support the case of the prosecution with regard to the allegations of demand of bribe. Though the A.O. was supposed to process the bills relating to P.W.1, but in fact, the joint account in the name of P.W.1 and P.W.7 were not transferred to the name of the A.O. and that was the reason why the A.O. could not do anything. Though the A.O. was supposed to process the bills relating to P.W.1, but in fact, the joint account in the name of P.W.1 and P.W.7 were not transferred to the name of the A.O. and that was the reason why the A.O. could not do anything. Though the Court below did not accept the contention of the respondent counsel that official favour was not pending, but in fact, unless and until the relevant accounts are transferred to the name of the A.O., there was no question of his doing official favour. With regard to the allegations of demand of bribe attributed against the A.O., the learned counsel for the respondent would contend that the prosecution before the Court below miserably failed to prove the same. P.W.1 to P.W.3 did not support the case of the prosecution. There was a spontaneous version by the A.O. in the post-trap that he received the amount as P.W.1 was due of Rs.1,000/-. P.W.1 did not speak that the A.O. demanded him to pay the bribe. Therefore, the mere recovery of the tainted amount from the A.O. is not sufficient to uphold the case of the prosecution. Apart from that, P.W.1 categorically admitted Ex.D.1 and Ex.D.2 which probabalize the defence theory. As the prosecution has not proved the foundational facts, there is no question of presumption under Section 20 of the P.C. Act and even otherwise by virtue of the admissions made by P.W.1 coupled with Ex.D.1 and Ex.D.2, the presumption if any under Section 20 of the P.C. Act, shall stands rebutted. With the above submissions, the learned counsel for the respondent would contend that the appeal is liable to be dismissed. 14. In view of the rival contentions advanced, firstly, this Court would like to deal with as to whether the official favour in respect of the work of P.W.1 to P.W.3 was pending with the A.O. in the manner as alleged by the prosecution. 15. There is no dispute that P.W.1 was the Sarpanch of Gompavanipalem, Ravikamatam Mandal and President of Habitation Committee of the said village. P.W.2 and P.W.3 were cited to speak to the fact that they were the members of the said committee. There is no dispute that the Gram Panchayat took up works under the programme of “Prajalavaddaku Palana”. There is no dispute that P.W.1 to P.W.3 were concerned with two works in this regard. P.W.2 and P.W.3 were cited to speak to the fact that they were the members of the said committee. There is no dispute that the Gram Panchayat took up works under the programme of “Prajalavaddaku Palana”. There is no dispute that P.W.1 to P.W.3 were concerned with two works in this regard. One work estimated cost is Rs.1,00,000/- and another work relating to construction of Community Hall is Rs.1,20,000/-. There was authorization to the Habitation Committee to execute the same. The road work was entrusted to P.W.2 and the construction of Community Hall was entrusted to P.W.3. So, the Sarpanch and Present of the Habitation Committee has to supervise those. The A.O. was the concerned Mandal Parishad Development Officer. There is no dispute that there were two joint accounts bearing S.B. A/c.Nos.5401 and 5403 in the official designation of P.W.1 and P.W.7. They used to withdraw the amounts from the joint accounts and makes payment to P.W.2 and P.W.3. These are all the facts which the prosecution established by virtue of the evidence of P.W.5 to P.W.8 and Ex.P.18 and Ex.P.19. The prosecution got marked Ex.P.18(a) and Ex.P.19(a) and the relevant entries in Ex.P.18 and Ex.P.19 M-books respectively. There is also Ex.P.22, Ex.P.23, Ex.P.25 to Ex.P.28, Ex.P.32(a) and Ex.P.32(b), Ex.P.31, Ex.P.32, Ex.P.33, Ex.P.34, Ex.P.38 and Ex.P.39 to establish the same. 16. The crucial allegations of the prosecution is that on 04.03.1998 when P.W.1 along with P.W.2 and P.W.3 met the A.O. and requested him to make payment in respect of the works, the A.O. demanded Rs.700/- i.e., 5% of the bill amount of Rs.14,193/- as bribe and claimed that he will not issue the cheques unless the demand is complied with. This is the sum and substance of the allegations of the prosecution case. 17. The contention of the A.O. before the Court below is that as on 04.03.1998 S.B. accounts were standing in the name of P.W.1 and P.W.7 and they were not transferred to the name of the A.O., as such, he would not in a position to do official favour. The above such contention was not found favour by the Court below. In one way or the other, there is no dispute that the A.O. had to pass the bills relating to P.W.1 to P.W.3. The above such contention was not found favour by the Court below. In one way or the other, there is no dispute that the A.O. had to pass the bills relating to P.W.1 to P.W.3. Though the accounts were not transferred to the A.O., but in course of time upon that contingency only, he has to do official favour. P.W.1 to P.W.3 were not supposed to know the technicalities for doing official favour. However, the evidence on record placed before the Court was found sufficient to say that the official favour in respect of the work of P.W.1 to P.W.3 was pending with the A.O. 18. The contention of the learned counsel for the respondent in this regard is not tenable. 19 It is to be noticed that mere pendency of the official favour in respect of the work of P.W.1 to P.W.3 does not if so facto leads to a conclusion that the prosecution proved the charges against the A.O. The allegations are quite specific that the A.O. demanded Rs.700/- which is 5% of the amount due to P.W.2 and P.W.3. 20. Now, this Court has to see as to what extent the prosecution succeeded in establishing the charges against the A.O. 21 Turning to the evidence of P.W.1 though he deposed certain facts which are in favour of the prosecution as regards the pendency of the official favour, but, when it comes to the crucial allegation of demand, he deposed that on 04.03.1998 he and L.W.2-Ramana and L.W.3-Arjuna went to the office of A.O. at 1-30 p.m. and met him. By then an amount of Rs.7,325/- was payable to L.W.2 and Rs.6,800/- was payable to L.W.3. The A.O. demanded 5% of the bill amount of them towards seigniorage. They refused to give that amount and they agreed to pay that amount after the bills were passed. But, the A.O. refused to pay the bill till the amount is paid. Then, they came out. The A.O. asked them to come to his office on 06.03.1998. On 05.03.1998 at 3-00 p.m., they went to the office of A.C.B., Visakhapatnam and submitted Ex.P.1. Ex.P.1 is his report. Witness further deposed about the pre-trap and post-trap proceedings. But, the A.O. refused to pay the bill till the amount is paid. Then, they came out. The A.O. asked them to come to his office on 06.03.1998. On 05.03.1998 at 3-00 p.m., they went to the office of A.C.B., Visakhapatnam and submitted Ex.P.1. Ex.P.1 is his report. Witness further deposed about the pre-trap and post-trap proceedings. In respect of pre-trap proceedings, his evidence is that he produced the amount before the A.C.B., Dy.S.P. and did certain process and he was asked to wait outside and after some time, he was called inside and the amount was kept in his pocket with a direction to hand over the same to the A.O. on further demand. Insofar as the post-trap proceedings is concerned, his evidence is that when they entered into the office of A.O., he (P.W.1) asked as to whether the cheques were prepared and the A.O. asked about the amount of Rs.700/- and then he stated that he brought the amount. Thereupon, the A.O. directed the clerk to prepare cheques and the clerk prepared cheques and obtained his (A.O.) signatures. Ex.P.20 is cheques. He gave two letters to the A.O. They are Ex.P.3 and Ex.P.4. Then, he took the amount from the side pocket and gave the amount with his right hand to the A.O. and the A.O. received it and kept under the table drawer. At his request, the A.O. counted the amount. The A.O. wrote a slip calculating the amount i.e., Ex.P.5. Even before issuing pre-arranged signal, A.C.B. party rushed there. He was directed by the A.C.B. to wait outside and after that he was examined. This is the substance of evidence of P.W.1. The learned Special Public got declared him as hostile and during cross examination, he denied the case of the prosecution. 22. Coming to the evidence of P.W.2 and P.W.3, they did not support the case of the prosecution. With regard to the post-trap proceedings, they testified that they accompanied P.W.1 in a Jeep, but they did not enter into the office of the A.O. and did not know what was transpired there. The learned Special Public Prosecutor got declared them as hostile and during cross examination, they denied the case of the prosecution. 23. P.W.4 is the mediator to the pre-trap and post-trap proceedings and he spoken about the pre-trap and post-trap proceedings. The learned Special Public Prosecutor got declared them as hostile and during cross examination, they denied the case of the prosecution. 23. P.W.4 is the mediator to the pre-trap and post-trap proceedings and he spoken about the pre-trap and post-trap proceedings. The substance of his evidence is that the tainted amount of Rs.700/- was no other than the amount whose particulars were noted in the pre-trap proceedings. 24. The evidence of P.W.10, the Trap Laying Officer, is similar with regard to the pre-trap and post-trap proceedings. 25. Therefore, what is evident from the case of the prosecution is that the tainted amount was recovered from the constructive possession of the A.O. The A.O. dealt with the tainted amount with his both hands, as such, it yielded positive result. Now, it is a matter of appreciation to decide as to whether the evidence available on record would prove the guilt against the A.O. 26. It is to be noticed that P.W.1 to P.W.3 did not support the case of the prosecution. Hence, there is no substantial evidence stating that the A.O. demanded P.W.1 to P.W.3 to pay the bribe of Rs.700/-. According to P.W.1, the A.O. demanded that they have to pay 5% amount towards seigniorage. The prosecution challenged the evidence of P.W.1 in this regard. P.W.2 and P.W.3 did not speak any demand against the A.O. So, P.W.4, the punch witness was not a witness to observe the events between P.W.1 and the A.O. Admittedly, the contents in Ex.P.1, Section 161 of Cr.P.C. statement of P.W.1 and the post-trap proceedings cannot be read any substantive evidence. In the event of P.W.1 supporting the case of the prosecution, only his report and the post-trap proceedings can be used to corroborate his testimony. Therefore, in my considered view, the prosecution did not prove the allegations of demand of bribe and consequent acceptance of the bribe by the A.O. from P.W.1. Hence, the prosecution did not prove the foundational facts. It is no doubt true that the foundational facts can also be proved by way of circumstantial evidence. Here, there are no circumstances pinpointing the guilt against the A.O. The prosecution did not place any chain of circumstances. The only thing on which the prosecution is relying upon is that the tainted amount was recovered from the possession of the A.O. 27. Here, there are no circumstances pinpointing the guilt against the A.O. The prosecution did not place any chain of circumstances. The only thing on which the prosecution is relying upon is that the tainted amount was recovered from the possession of the A.O. 27. As evident from the post-trap proceedings when Dy.S.P. confronted with the A.O. as to what happened and as to how he dealt with the tainted amount, he explained that P.W.1 was due of Rs.1,000/- to him and he paid part payment of Rs.700/-. Though the A.O. had no proof to that effect, but absolutely, it is not the evidence of P.W.1 that he paid a sum of Rs.700/- to the A.O. towards the bribe amount. To support the loan theory, the A.O. elicited necessary answers from the cross examination of P.W.1. During cross examination, P.W.1 deposed that the signature on the letter, dated 06.03.1998 said to have been addressed by him to the A.O. is of him. He deposed in cross examination that though he got mentioned in Ex.P.1 that the A.O. demanded Rs.700/- as bribe, but in fact, the A.O. did not demand any bribe. The signature on the letter, dated 09.01.1998 addressed to the A.O. is of him, so also, the signature on the receipt, dated 09.01.1998. They are Ex.D.1 and Ex.D.2 respectively. Ex.D.1 is his hand writing. Ex.D.2 is not in his hand writing. As seen from Ex.D.1, it is purported letter addressed by P.W.1 to the A.O. stating that P.W.1 is in need of Rs.1,000/- to attend the work and that the A.O. can send that amount to P.W.1 through deputy. Ex.D.2 is said to be the receipt in this regard. These documents are brought into evidence during cross examination of P.W.1 and P.W.2. It is well settled that the A.O. can probabalize his defence basing on the preponderance of probabilities. There is a spontaneous version in the post-trap proceedings that P.W.1 borrowed a sum of Rs.1,000/- from the A.O. 28. Having regarding to the above, this Court is of the considered view that the A.O. let in proper evidence to probabalize his defence. The Court below believed the defence theory and also made a finding that the A.O. could not examine the signatory of those letters, as he died. Having regarding to the above, this Court is of the considered view that the A.O. let in proper evidence to probabalize his defence. The Court below believed the defence theory and also made a finding that the A.O. could not examine the signatory of those letters, as he died. It is a case where the prosecution failed to prove the foundational facts, as such, the benefit of presumption under Section 20 of the P.C. Act is not available. Even otherwise, the defence of the A.O. was in tune with spontaneous version put forth in the post-trap proceedings. The Court below having regard to the overall facts and circumstances and with sound reasons, disbelieved the case of the prosecution with regard to the allegations of demand. At the same time, the Court with proper reasons ordered that a complaint is to be filed against P.W.1 for perjury. 29. Having regard to the above, I am of the considered view that absolutely there are no reasons to interfere with the well reasoned judgment of the learned Special Judge in extending an order of acquittal in favour of the respondent. Hence, the judgment under challenge is sustainable under law as well as on facts. The prosecution miserably failed to prove the charges framed against the A.O. Hence, the appeal must fail. 30. In the result, the Criminal Appeal is dismissed. 31. The Registry is directed to send a copy of the judgment to the concerned Judicial First Class Magistrate where the complaint against P.W.1 for perjury is pending. Consequently, miscellaneous applications pending, if any, shall stand closed.