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2023 DIGILAW 1474 (AP)

Rakoti Akkala Naidu v. State

2023-11-28

K.SREENIVASA REDDY

body2023
JUDGMENT 1. This Criminal Appeal has been preferred against the judgment dtd. 4/10/2007 passed in CC No.27 of 2001 by learned Special Judge for ACB Cases-cum-III Additional District and Sessions Judge, Visakhapatnam. In the aforesaid C.C., the appellant/accused officer was tried for the offences punishable under Ss. 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). By his judgment, dtd. 4/10/2007, the learned Special Judge found the accused officer guilty of the offences under Ss. 7 and 13(1)(d) read with 13(2) of the Act and, accordingly, convicted and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs.500.00, in default to suffer simple imprisonment for one month, for the offence under Sec. 7 of the Act. The accused officer was further convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1, 000.00, in default to suffer simple imprisonment for two months, for the offence under Sec. 13(2) read with 13(1)(d) of the Act. Both the sentences of imprisonment were directed to run concurrently. The tainted amount of Rs.1500.00 was ordered to be forfeited to the State. 2. Case of the prosecution is that, the father of the informant (PW1) worked as Superintendent in the Agricultural Department and retired in June 1997. He died in the month of February 1999 and the informant's mother was getting family pension. While so, when the informant came to know through Syndicate Bank authorities that the pension records were sent to the officials of the Sub-Treasury, Srikakulam, he met the accused officer, who was working as Senior Accountant, Sub Treasury Office, Srikakulam, in the last week of May, 2000 and enquired about the matter. It is alleged that the accused officer informed the informant that his mother's pension was to be enhanced and asked him to handover the pension papers which were received from AG Office. Accordingly, the informant handed over those papers to the accused officer in the first week of June, 2000. The informant again met the accused officer in his office on 30/6/2000, as asked by the accused officer. It is alleged that the accused officer informed the informant that his mother's pension was increased to Rs.900.00 per month and demanded Rs.1500.00 as bribe to calculate and to prepare the bill. The informant again met the accused officer in his office on 30/6/2000, as asked by the accused officer. It is alleged that the accused officer informed the informant that his mother's pension was increased to Rs.900.00 per month and demanded Rs.1500.00 as bribe to calculate and to prepare the bill. The informant requested the accused officer to reduce the amount of bribe, but the accused officer insisted to pay the demanded bribe amount within four days, and stated that otherwise he would not attend to that work. As there was no other way, the informant reluctantly agreed to pay the bribe amount and preferred a report against the accused officer before the Deputy Superintendent of Police, Anti-Corruption Bureau, Vizianagaram, on 3/7/2000, which was registered as a case in Crime No.7/RCACB/VZM/2000 for the offences punishable under Ss. 7 and 13(2) read with 13(1)(d) of the Act. After conducting pre-trap proceedings, the accused officer, who was working as Senior Accountant in the SubTreasury Office, Srikakulam, was trapped by the Deputy Superintendent of Police, ACB, Vizianagaram on 4/7/2000 at 11.30 AM in his office room while demanding and accepting the bribe amount of Rs.1500.00 from the informant for doing official favour in the matter of family pension belonging to his mother and to draw arrears. The phenolphthalein test conducted on the right hand fingers and inner lining of the left side shirt pocket of the accused officer yielded positive results. The tainted amount of Rs.1500.00 was recovered from the left side pocket of the accused officer when produced by him voluntarily and, on verification, the serial numbers of the said currency notes were found tallied with those mentioned in the pre-trap panchanama. The Deputy Superintendent of Police, ACB, Vizianagaram seized all the relevant documents pertaining to the case under cover of a mediators report. Having satisfied with the material secured during the course of investigation, the Government, vide G.O.Ms.No.112, Finance and Planning (Fin.Wing-Admn-III) Department, dtd. 10/4/2001, issued sanction order to prosecute the accused officer in a competent Court of law. After completion of investigation, a charge sheet was laid against the accused officer. 3. On appearance of the accused officer, copies of documents were furnished to him as required under Sec. 207 Cr.P.C. and, thereafter, charges under Ss. 10/4/2001, issued sanction order to prosecute the accused officer in a competent Court of law. After completion of investigation, a charge sheet was laid against the accused officer. 3. On appearance of the accused officer, copies of documents were furnished to him as required under Sec. 207 Cr.P.C. and, thereafter, charges under Ss. 7 and 13(1)(d) read with 13(2) of the Act were framed against the accused officer, read over the contents and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. 4. On behalf of the prosecution, PWs.1 to 5 were examined and Exs.P1 to P11 and MOs 1 to 10 were marked. 5. After closure of the prosecution evidence, accused officer was examined under Sec. 313 Cr.P.C., explaining the incriminating material found against him in the evidence of prosecution witnesses, for which he denied, but did not choose to examine any witnesses on his behalf, however he filed a written statement stating that he never demanded any gratification and accepted the bribe from PW.1 and that he received the amount of Rs.1500.00 from PW.1 towards repayment of hand loan, which was taken by PW.1 from him. 6. The learned Special Judge, on consideration of the entire oral and documentary evidence on record, found the accused officer guilty of the offences under Ss. 7 and 13(1)(d) read with 13(2) of the Act and, accordingly, convicted and sentenced him as stated supra. Aggrieved by the same, the present Criminal Appeal has been preferred. 7. Learned counsel for the appellant submits that the learned Special Judge has not dealt with the case in proper perspective. According to him, the amount that was taken by the appellant/accused officer is towards repayment of hand loan amount which was given by him to informant, who was examined as PW.1. He further submitted that PW.1 in his cross-examination categorically submitted that he had taken hand loan of Rs.1500.00 from the accused officer in the month of April, 2000 to meet the medical expenditure of his mother and 15 days prior to the date of trap, the accused officer asked him to repay the borrowed amount of Rs.1, 500.00, but he did not repay the same, and after the trap, he sent the money to the accused officer through his friend twice or thrice, but the accused officer was not available. To corroborate the same, learned counsel appearing on behalf of the appellant/accused officer has taken this Court to the written statement filed by the accused after his examination under Sec. 313 Cr.P.C., wherein it has been categorically stated by the accused officer that he was under the bona fide impression that the amount brought by PW.1 is the amount to repay the hand loan, which was taken by PW.1 from him. Learned counsel has further taken this Court and highlighted the inconsistencies in the evidence of PWs.1 to 4 and submitted that the learned Special Judge erred in convicting the accused officer. 8. On the other hand, Smt. A. Gayatri Reddy, learned Standing Counsel for ACB-cum-Special Public Prosecutor appearing on behalf of the State submitted that PW.1 categorically stated that on the demand made by the accused officer, the amount of Rs.1500.00 was paid to clear the pension papers belonging to his mother. She further submitted that the essential ingredients of the offences alleged under the Act are that there should be a demand, acceptance and recovery and going by the material on record all the said three ingredients of the offences alleged have been made out and the learned Special Judge was right in convicting the accused of the aforesaid offences, and there are no grounds to interfere with the impugned judgment. 9. Heard both sides. Perused the material on record. 10. The sum and substance of the allegation against the accused officer is that he, being the Senior Accountant, working in the SubTreasury Office, Srikakulam, demanded and accepted bribe amount of Rs.1500.00 on 4/7/2000 as illegal gratification other than the legal remuneration to show official favour in the matter of family pension belonging to the mother of the informant and to draw arrears, thereby committed the aforesaid offences. 11. PW.1 worked as Marketing Executive in Reliance Info Com, Srikakulam. He deposed that his father died in the year 1999. During his life time, he worked as AO in Agricultural Department and he retired in 1997. On the demise of his father, his mother has been receiving the family pension. In the first week of May, 2000, PW.1 and his mother went to Syndicate Bank, Srikakulam to receive family pension payable to his mother. The bank authorities represented that the Sub-Treasury people had taken away pension papers of his mother and instructed PW.1 to meet the Sub-Treasury Officials. In the first week of May, 2000, PW.1 and his mother went to Syndicate Bank, Srikakulam to receive family pension payable to his mother. The bank authorities represented that the Sub-Treasury people had taken away pension papers of his mother and instructed PW.1 to meet the Sub-Treasury Officials. In the last week of May, 2000, PW.1 went to the Sub-Treasury Office, Srikakulam and made enquiries in the office about the family pension payable to his mother by the Government. He was directed to meet the accused officer. On enquiry, the accused officer instructed him to bring the papers received from AG Office, Hyderabad. Thereafter, in the first week of June, 2000, PW.1 went to the Sub-Treasury Office with the papers received from AG Office and handed over the same to the accused officer, and PW.1 was instructed to meet three days thereafter. On 30/6/2000, when PW.1 met the accused officer, PW.1 was informed that his mother's pension was increased and calculations were to be made for preparing the arrears bill, for which, accused officer demanded PW.1 to bring Rs.1500.00 towards bribe. PW.1 expressed his inability to pay the said bribe amount, but the accused officer pressed for Rs.1500.00 in order to calculate pension and to prepare arrears bill. As PW.1 was not inclined to pay the bribe amount to the accused officer, he complained about the demand made by the accused officer to the Deputy Superintendent of Police, ACB, Srikakulam (P.W.5), who, on receipt of report Ex.P1 from PW.1, registered a case in Crime No.7/RC-ACB-VZM/2000 under Ex.P10 FIR. PW.5, after following the procedure contemplated under the Act, conducted pre-trap proceedings, advised PW.1 and others to conduct the trap. On 4/7/2000, PW.5, along with his staff and PW.1, went to the office of the accused officer. PW.1 went into the computer room of the accused officer where he used to sit and on demand he paid Rs.1500.00 to the accused officer. It is alleged that the accused officer put the money in his shirt pocket. Thereafter, PW.5, by following the procedure contemplated under the Act, conducted posttrap proceedings under Ex.P9. After obtaining prosecution sanction orders Ex.P11, one Rama Subba Reddy, the successor of PW.5, filed charge sheet. 12. On a perusal of the entire material on record, it is evident that during his cross-examination, PW.1 has categorically stated as follows. Thereafter, PW.5, by following the procedure contemplated under the Act, conducted posttrap proceedings under Ex.P9. After obtaining prosecution sanction orders Ex.P11, one Rama Subba Reddy, the successor of PW.5, filed charge sheet. 12. On a perusal of the entire material on record, it is evident that during his cross-examination, PW.1 has categorically stated as follows. "In the first week of April 2000 I borrowed an amount of Rs.1500.00 from AO, to meet the medical expenditure of my mother. 15 days prior to the trap date the AO asked me for repayment of borrowed amount of Rs.1500.00. But, I did not repay the amount as we did not met. After the trap date the relationship between my family members and AO were strained." It is relevant to mention here that PW.1 proceeded on the footing that after the trap, PW.1 sent money to the accused officer through his friend twice or thrice, but the accused officer was not available. 13. In the cross-examination, it has been categorically stated by PW.1 that they and accused officer's family knew each other since long time. It is an admitted fact that in the month of April, 2000, PW.1 borrowed an amount of Rs.1500.00 from the accused officer. There is no dispute with regard to that aspect. During the course of evidence of PW.1, learned Special Public Prosecutor requested the Court to declare PW.1 as hostile, but the Court did not accede to the said request on the ground that the objection raised by the learned Special Public Prosecutor in connection with the above mentioned piece of evidence is not contrary to the evidence in chief, hence the request of the learned Special Public Prosecutor to declare PW.1 as hostile was rejected. 14. The entire case rests on the evidence of PW.1. Except the evidence of PW.1, there is no other corroborative evidence. PW.2 is only a mediator to panchanama with regard to pre-trap and post-trap proceedings. PW.3 is the Senior Accountant working in the SubTreasury Office. PW.3 categorically states that the office received Ex.P7 file on 4/7/2000 i.e. the date on which trap proceedings were conducted. If really, Ex.P7 file containing pension papers belonging to PW.1's mother was received on 4/7/2000, the theory propounded by PW.1 would not be accepted for the reason that as on the date of receiving Ex.P7 file, the question of demanding the bribe amount of Rs.1500.00 would not arise. If really, Ex.P7 file containing pension papers belonging to PW.1's mother was received on 4/7/2000, the theory propounded by PW.1 would not be accepted for the reason that as on the date of receiving Ex.P7 file, the question of demanding the bribe amount of Rs.1500.00 would not arise. According to PW.3, after receiving Ex.P7 file, the Senior Accountant will examine the file and send the same to the Assistant Treasury Officer and thereafter the file would be scrutinized and forwarded to the District Treasury Officer for final approval. When such is the case, the question of demanding the bribe amount and trap being conducted on the same day would not arise. PW.4 is the Assistant Manager of Syndicate Bank, Srikakulam. He too concurs with the version given by PW.3 as to the procedure that is contemplated in processing Ex.P7 file. PW.5 the Investigating Officer, who conducted investigation and recorded the statements of witnesses during the course of investigation, only speaks with regard to pre-trap and post-trap proceedings. PW.5 in his evidence stated that the accused officer did not give his spontaneous explanation during the trap proceedings. 15. The entire case rests on the evidence of PW.1, where it has been proceeded on the footing that the accused officer is alleged to have demanded the bribe amount of Rs.1500.00 and PW.1 paid the said amount to the accused officer on 4/7/2000. Immediately, PW.5 who is the Investigating Officer, after following the procedure contemplated under the Act with regard to the trap, arrested the accused officer by recovering the money from his shirt pocket. It is pertinent to mention here that during the course of post trap proceedings, the Investigating Officer made the accused officer to rinse his fingers in the sodium carbonate solution, where the colour was changed to pink. The tainted amount was recovered from the shirt pocket of the accused officer. 16. It is apparent on the face of the record that in crossexamination, PW.1 has categorically stated that an amount of Rs.1500.00 was borrowed by him from the accused officer in the month of April 2000 to meet the medical expenditure of his mother. When such is the situation, the question of accused officer demanding bribe of Rs.1500.00 from PW.1 would not arise and it can safely be inferred that there is cordial relationship between the family members of PW.1 and accused officer. When such is the situation, the question of accused officer demanding bribe of Rs.1500.00 from PW.1 would not arise and it can safely be inferred that there is cordial relationship between the family members of PW.1 and accused officer. Viewed from the angle of accused officer, he would be under the bona fide impression that he was asking for return of the money which he paid to PW.1, whereas PW.1 wrongly inferred in such a way that to process the pension papers the accused officer was asking the bribe amount. It appears that there is some misconception between both of them. To corroborate that, the accused officer in his written statement has categorically stated as follows. "That he never demanded any gratification and accepted the bribe from PW.1. He received the amount of Rs.1500.00 from PW.1 towards repayment of hand loan, which was taken by PW.1 from him. His true version was not incorporated in the trap proceedings, though he narrated the version that he received the amount towards repayment of loan." 17. Learned counsel for the appellant has relied upon a decision reported in Punjabrao v. State of Maharashtra, (2002) 10 SCC 371 , wherein the Hon'ble Supreme Court held thus. "3. We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is undisputed that from 24th to 26th the Patwari was collecting loans in a collection campaign. It is, of course, true as observed by the High Court that when the Investigating Officer seized the amount from the Patwari-accused, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Sec. 313 when such explanation could be held to be reasonable under the facts and circumstances of the case, as indicated by the learned Special Judge while acquitting the accused. It also transpires that the High Court, while setting aside an order of acquittal recorded by the Special Judge, has not focussed its attention to the reasoning advanced by the Special Judge, and by mere re-appreciation has come to the conclusion, and in our view the conclusion is based upon a mis-reading of the relevant evidence Including the evidence of PW-2. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court erred in interfering with the well reasoned judgment of the Special Judge in an order of acquittal. We, therefore, set aside the impugned conviction and sentence passed by the High Court. The appeal is allowed. The accused-appellant is acquitted of the charges leveled against him. The bail bond stands discharged." 18. In the above said case, the accused offered his explanation for receipt of the alleged amount. The question that cropped up for consideration was whether that explanation can be said to have been established. In the above case, when the Investigating Officer seized the amount from the accused, the accused did not offer any explanation that it was in relation to collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Sec. 313 Cr.P.C. 19. In the present case on hand, the accused officer categorically stated that he offered an explanation to the Investigating Officer that the amount that was paid to him is the amount which was borrowed by PW.1, but the said explanation which was given by the accused officer was not recorded by the Investigating Officer. Thus, it is clear that the statement made by PW.1 in his evidence with regard to borrowing of loan amount and explanation offered by the accused officer in his written statement corroborates with each other. Apart from it, viewed from the angle of PW.3, the question of demanding bribe amount by the accused officer would not arise for the reason that PW.3 has categorically stated that Ex.P7 file pertaining to pension papers belonging to the mother of PW.1 was received only on 4/7/2000 in the office. Apart from it, viewed from the angle of PW.3, the question of demanding bribe amount by the accused officer would not arise for the reason that PW.3 has categorically stated that Ex.P7 file pertaining to pension papers belonging to the mother of PW.1 was received only on 4/7/2000 in the office. When such is the case, the question of demanding bribe by the accused officer from PW.1 on the same day would not arise, when Ex.P7 file was received in the office on 4/7/2000, which has to be further processed by the office by sending the same to the Assistant Treasury Officer and to the District Treasury Officer. In view of the procedure contemplated, the question of accused officer demanding the bribe amount on the same day when Ex.P7 file was received by the office would not arise and the same cannot be accepted. Therefore, the explanation offered by the accused officer appears to be probable. 20. Learned counsel for the appellant has also relied on a decision reported in State of Kerala v. C.P. Rao., (2011) 6 SCC 450 , wherein it was held thus. "In the background of these facts, especially the non- examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi Vs. State of Maharashtra, ( 1979(4) SCC 526 ) wherein a three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the aforesaid circumstances, the three-Judge Bench in Pannalal Damodar Rathi case (supra) held that there is grave suspicion about the appellant's complicity and the case has not been proved beyond reasonable doubt. (see para 11). This Court finds that the appreciation of the ratio in Panalal Damodar Rathi case (supra) by the High Court was correctly made in the facts and circumstances of the case." 21. Coming to the case on hand, when the theory of bribe has been disbelieved, mere recovery of tainted money divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Coming to the case on hand, when the theory of bribe has been disbelieved, mere recovery of tainted money divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Mere recovery by itself cannot prove the charge of the prosecution against the accused officer. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In view of the aforesaid facts and circumstances, this Court is of the view that the accused officer has made out a case for acquittal and the prosecution failed to establish the guilt of the accused officer beyond all reasonable doubt, as such the learned Special Judge erred in finding the accused officer guilty of the alleged offences and recording the conviction against him. Hence, the conviction and sentence passed by the learned Special Judge against the accused officer for the offences punishable under Ss. 7 and 13(1)(d) read with 13(2) of the Act are liable to be set aside. 23. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused officer for the offences punishable under Ss. 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 in the Judgment 4/10/2007 in CC No.27 of 2001 on the file of the learned Special Judge for ACB Cases-cum-III Additional District and Sessions Judge, Visakhapatnam, are set aside. The appellant/accused officer is found not guilty of the offences punishable under Ss. 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 and is accordingly acquitted of the said offences. The fine amount, if any, paid by the accused officer shall be refunded to him. Consequently, miscellaneous petitions, if any, pending in the Criminal Appeal shall stand closed.