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2023 DIGILAW 1567 (AP)

State Of A. P. v. Velugula Krishna Samudram

2023-12-13

A.V.RAVINDRA BABU

body2023
JUDGMENT : Challenge in this Criminal Appeal is made by the State, represented by Deputy Superintendent of Police, Anti-Corruption Bureau (“A.C.B.” for short), Vijayawada Range, Vijayawada, to the judgment, dated 12.03.2007 in C.C.No.4 of 2004, on the file of Special Judge for SPE & ACB Cases, Vijayawada (“Special Judge” for short), whereunder the learned Special Judge found the Accused Officer (“A.O.” for short) not guilty of the charges under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (“P.C. Act” for short) and acquitted him under Section 248(1) of the Code of Criminal Procedure (“Cr.P.C.” for short), but made a finding that P.W.1 appears to have given false evidence and that it is expedient, in the interest of justice, that he be prosecuted for perjury. The learned Special Judge gave appropriate direction to lodge a complaint in Metropolitan Magistrate or Magistrate of First Class against P.W.1 for committing the offences under Sections 193 and 211 of the Indian Penal Code (“I.P.C.” for short) by exercising powers under Section 340 r/w 195(1)(b) of Cr.P.C. 2) The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Special Judge for the sake of convenience. 3) The State, represented by the Deputy Superintendent of Police, A.C.B., Vijayawada Range, Vijayawada, laid a charge sheet pertaining to Crime No.30/ACB-RCT-VJA/2002 of A.C.B., Vijayawada Range, Vijayawada, alleging in substance as follows: (a) The A.O. was working as Town Planning Supervisor, Municipal Corporation, Guntur, as on the date of the alleged offence i.e., on 28.08.2002 and as such he is a public servant within the meaning of Section 2(c) of P.C. Act, 1988. (b) Sri Dumpala Srinivasa Rao, S/o Venkateswara Rao (P.W.1), a resident of Gunturivari Thota, 7th Line, Guntur, and a Licensed Building Surveyor, has been preparing building plans and estimations as required by the concerned building owners and that on 20.08.2002 one S.K. Jeelani (P.W.2) came to him and requested to prepare a plan for constructing a building. On that P.W.1 visited the site along with P.W.2 and asked him to pay the pending house taxes to the Municipal Corporation, Guntur. Thereupon P.W.2 paid the taxes and showed the receipts to P.W.1 and after that P.W.1 prepared a plan of the proposed building of P.W.2 and submitted the building application form along with necessary requisites on 22.08.2002. (c) On 24.08.2002 the A.O. visited the site accompanied by P.W.1. Thereupon P.W.2 paid the taxes and showed the receipts to P.W.1 and after that P.W.1 prepared a plan of the proposed building of P.W.2 and submitted the building application form along with necessary requisites on 22.08.2002. (c) On 24.08.2002 the A.O. visited the site accompanied by P.W.1. Later on, as per the instructions of the A.O., P.W.1 met him at his office on 26.08.2002. Then the A.O. demanded a bribe of Rs.3,500/- for approval of the building plan of P.W.2 and further instructed him to pay the same to him on 28.08.2002 at his office. (d) In spite of expressing his inability to pay the demanded bribe amount, the A.O. did not heed to his words and as there was no alternative for approval of the building plan, P.W.1 reluctantly agreed to pay the demanded bribe amount and as he was not willing to pay the bribe wholeheartedly, he met P.W.6 and presented Ex.P.1 report, who, after observing necessary formalities registered the case and investigated into. (e) On 28.08.2002 the A.O. was successfully trapped by P.W.7 when he further demanded and accepted bribe amount of Rs.3,500/- from P.W.1 at about 4-30 p.m., in his office room for showing the official favour of approving house plan relating to P.W.2 as gratification other than legal remuneration and when both hand fingers and the inner linings of the upper shirt pocket of A.O. were subjected to S.C. solution test, the right hand fingers as well as the inner lining of the shirt pocket proved positive. The tainted amount was recovered from the physical possession of the A.O., which was seized along with relevant files and the resultant solutions and arrested the A.O., etc. P.W.7, the D.S.P. examined the witnesses and sent the draft final report to the D.G., ACB and after obtaining prosecution sanction order, he filed charge sheet. (f) The Government of Andhra Pradesh passed the prosecution sanction orders vide G.O.Ms.No.397, Municipal Administration & Urban Development (V2) Department, dated 16.08.2003, to prosecute the A.O. Hence, the case. 4) The learned Special Judge took cognizance of the case under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act. (f) The Government of Andhra Pradesh passed the prosecution sanction orders vide G.O.Ms.No.397, Municipal Administration & Urban Development (V2) Department, dated 16.08.2003, to prosecute the A.O. Hence, the case. 4) The learned Special Judge took cognizance of the case under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act. On appearance of the Accused Officer and on compliance of Section 207 of the Code of Criminal Procedure (“Cr.P.C.” for short), framed charges under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act against the Accused Officer and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried. 5) In order to establish the guilt against the Accused Officer, the prosecution examined P.W.1 to P.W.7 and got marked Ex.P.1 to Ex.P.13 and M.O.1 to M.O.8 and Ex.X.3. After closure of the evidence of prosecution, the Accused Officer 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 during Section 313 of Cr.P.C. examination as follows: P.W.1 borrowed Rs.3,500/- from him as hand loan on 25.07.2002 promising to repay it in last week of August, 2002 under Ex.D.2-hand letter and P.W.1 repaid the same on 28.08.2002 under Ex.D.1. P.W.1 or P.W.2 need not apply for approval of plan, since the site is less than 100 sq. meters. Ex.X.1 is disproved the prosecution allegations and that he never demanded nor accepted any bribe from P.W.1. P.W.1 is not authorized by P.W.2 to give report and P.W.2 did not give the bribe amount. P.W.1 has no personal interest and the tainted amount must be deemed to have been given by ACB authorities as claimed and that he was falsely implicated in this case. 6) In furtherance of the defence, the A.O. got marked Ex.X.1 and Ex.X.2 and Ex.D.1 to Ex.D.3 without letting any oral evidence. 7) The learned Special Judge on hearing both sides and on considering the oral as well as documentary evidence, found the Accused Officer not guilty of the charges under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act and accordingly acquitted him under Section 248(1) of Cr.P.C. Felt aggrieved of the judgment of acquittal, the unsuccessful State filed the present Criminal Appeal. 8) Now, in deciding this Criminal Appeal, the points that arise for consideration are as follows: (1) Whether the prosecution proved that A.O. was a public servant within the meaning of Section 2(c) of P.C. Act and that prosecution obtained a valid sanction in terms of Section 19 of the P.C. Act so as to prosecute A.O. for the charges leveled against him? (2) Whether the prosecution proved the pendency of the official favour to be done by the A.O. in respect of the work of P.W.1 and that prior to the date of trap and on the date of trap, A.O. demanded P.W.1 for bribe of Rs.3,500/-and accordingly, accepted the same and that and that he obtained pecuniary advantage by demanding and accepting such amount? (3) Whether the judgment, dated 12.03.2007 in C.C.No.4 of 2004 is sustainable under law and facts and whether there are any grounds to interfere with the same? Point No.1:- 9) Insofar as this point is concerned, there is no dispute that the A.O. is a public servant within the meaning of Section 2(c) of the P.C. Act, as he was drawing salary from the account of the Government. The prosecution examined P.W.5 and got marked Ex.P.12-sanction order. P.W.5 deposed that he is conversant with the handwriting and signature of the then Municipal Secretary, G. Chatterjee of Municipal Administration Department on Ex.P.12. The learned Special Judge looking into the evidence of P.W.5 and Ex.P.12, made finding that the prosecution proved the valid sanction. During the course of hearing of the present appeal, it is not in dispute. The prosecution was able to prove that A.O. was a public servant within the meaning of Section 2(c) of P.C. Act and prosecution obtained valid sanction to prosecute the A.O. Point Nos.2 and 3:- 10) P.W.1 was the defacto-complainant. P.W.2 was the owner of the building for which P.W.1 submitted plan before the concerned for building plan. P.W.3 was one of the mediators to the pre-trap and post-trap proceedings. P.W.4 was the Town Planning Supervisor, who was examined to speak of certain procedural aspects regarding pendency of the official favour. P.W.5 was the person, who was examined to prove Ex.P.12. P.W.6 was the Inspector, ACB, who claimed to have made certain verifications with regard to antecedents of A.O. P.W.1. P.W.7 was the Trap Laying Officer. P.W.4 was the Town Planning Supervisor, who was examined to speak of certain procedural aspects regarding pendency of the official favour. P.W.5 was the person, who was examined to prove Ex.P.12. P.W.6 was the Inspector, ACB, who claimed to have made certain verifications with regard to antecedents of A.O. P.W.1. P.W.7 was the Trap Laying Officer. 11) Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the appellant/State, would contend that P.W.1 was the licensed building Surveyor whose duty was to prepare plans on behalf of the persons, who were willing to construct building. He assumed the work relating to P.W.2 to get the approval for construction of a building in the site of P.W.2. For obvious reasons, P.W.1 and P.W.2 turned hostile to the case of the prosecution. Admittedly, in respect of an extent of less than 100 sq. yards, there was no need or necessity to obtain a building permission. However, as P.W.2, the owner was quietly interested to get the approval of the building plan to avoid any future complications, he approached P.W.1. The learned Special Judge made findings without proper reasons that no official favour was pending in the manner as alleged. P.W.1 and P.W.2 for obvious reasons so as to help the A.O., turned hostile to the case of the prosecution. They did not speak of any demand against A.O. However, the tainted amount was recovered from the possession of A.O. It was not in dispute. The learned Special Judge held that A.O. probabalized his defence that he received amount from P.W.1 towards hand loan. Such findings of the learned Special Judge were not at all tenable. As the tainted amount was recovered from the possession of A.O., the prosecution had the benefit of presumption under Section 20 of the P.C. Act. The A.O. failed to probabalize his defence. With the above submissions, she would contend that the appeal is liable to be allowed. 12) Sri A. Hari Prasad Reddy, learned counsel appearing for the respondent, would contend that absolutely, there was no necessity for P.W.2 to make a request to P.W.1 to get the approval for building permission by virtue of the G.O. of the Government exempting of obtaining permission when the extent was only less than 100 Sq. yards. 12) Sri A. Hari Prasad Reddy, learned counsel appearing for the respondent, would contend that absolutely, there was no necessity for P.W.2 to make a request to P.W.1 to get the approval for building permission by virtue of the G.O. of the Government exempting of obtaining permission when the extent was only less than 100 Sq. yards. The learned Special Judge rightly found that no official favour pertaining to the work of P.W.1 was pending with A.O. The A.O. was not capable of passing any orders for approval of the building plan as alleged in the report of P.W.1 under Ex.P.1. P.W.1 and P.W.2 did not depose that A.O. demanded them for payment of any bribe. The prosecution sought to declare them as hostile and nothing could be elicited during their cross examination. The mere recovery of the amount from A.O., especially, when the defence was that P.W.1 repaid the amount due to A.O. is not sufficient to convict the A.O. The learned Special Judge on thorough appreciation of the evidence of record, extended an order of acquittal, as such, it cannot be held that an order of acquittal was extended basing on unreasonable findings. With the above submissions, he seeks to dismiss the appeal. 13) The case of the prosecution as projected in Ex.P.1, report lodged by P.W.1, is that he is a Licensed Building Surveyor and is preparing building plans and estimations by surveying them. On 20.08.2002 one K. Jilanee approached him to get the preparation of plan to construct a building. He along with Sk.Jilanee visited the site and asked him to pay the pending house taxes so far, if any, to the Corporation. Accordingly, Sk.Jilanee paid the house tax. Later, he prepared the building plan relating to Sk. Jilanee. On 22.08.2002 at 12-00 noon, he submitted the building application along with necessary enclosures in the Citizen charter, counter of Municipal Corporation, Guntur. On 24.08.2002 building Supervisor, Municipal Corporation, Guntur, visited and inspected the site of Prakash Nagar of Guntur accompanied by him. Later on, after inspection at the instructions of Krushna Samudram i.e., A.O., he met him at his office on 26.08.2002 at 4-00 p.m. Then he demanded him Rs.3,500/- for approval of building plan which is given by him and instructed to pay the bribe amount on 28.08.2002 evening hours at his office. Later on, after inspection at the instructions of Krushna Samudram i.e., A.O., he met him at his office on 26.08.2002 at 4-00 p.m. Then he demanded him Rs.3,500/- for approval of building plan which is given by him and instructed to pay the bribe amount on 28.08.2002 evening hours at his office. As the other parties may not approach him, if the said building plan is not approved, with that fear as there is no alternative he reluctantly agreed to give bribe. Hence, he approached the ACB and requested to take action against the said Krishna Samudram. So, Ex.P.1 speaks of the demand, dated 26.08.2002 and further instructions to pay the bribe amount on 28.08.2002. 14) According to the case of the prosecution, A.O. made further demand to pay bribe during post-trap on 28.08.2002 and on last demand he accepted the tainted amount. 15) Firstly, I would like to deal with about the pendency of the official favour. There was no dispute that the site in which P.W.2 proposed to construct the building was less than 100 sq. yards and by virtue of the G.O. under Ex.D.1, there was no need or necessity to obtain building permission. However, the fact remained is that P.W.2 was interested to get building permission. There is no dispute that P.W.1 submitted Ex.P.3 application for processing on behalf of P.W.2. They turned hostile to the case of the prosecution. In cross examination, P.W.1 categorically admitted about G.O.Ms.No.423, Municipal Administration, dated 31.07.1998 giving exemption to obtain any proper permission to construct building in a site of less than 100 sq. yards. The G.O. was brought in as Ex.D.1. Apart from this, there was a categorical admission on behalf of P.W.1 during cross examination that A.O. had waiting time of 15 days as per Ex.D.1 to process Ex.P.1 request. Hence, the submission of the application was on 22.08.2002 and A.O. has to process it within a period of 15 days. He will have the time admittedly till 06.09.2002. P.W.1 had every knowledge that A.O. would have the time till 06.09.2002 to make process of the request. Apart from this, the competent authority for processing or for approval was the Municipal Commissioner concerned. The duty of A.O. was only to put up proper note after proper scrutiny. He had no power to pass any orders so as to approve Ex.P.3 proposed plan. Apart from this, the competent authority for processing or for approval was the Municipal Commissioner concerned. The duty of A.O. was only to put up proper note after proper scrutiny. He had no power to pass any orders so as to approve Ex.P.3 proposed plan. Absolutely, Ex.P.1 even did not disclose that A.O. demanded any money so as to scrutinize the application with a submission to forward Ex.P.3 either to the Town Planning Officer or to any other officer. Apart from this, P.W.1 being a licensed Surveyor was supposed to know about the existence of Ex.D.1 where it exempted approval of the plans in respect of extents of less than 100 sq. yards. However, the fact remained is that P.W.2 being the owner of the site was having some interest to get the approval. 16) Having regard to the overall facts and circumstances, this Court is of the considered view that when G.O.Ms.No.423 (A), dated 31.07.1998 states categorically that there was no necessity to obtain any permission in respect of the building before construction in an extent of 100 sq. yards or sq. meters, as the case maybe, A.O. had no power whatsoever to make an order for approval of the building plan. When it was not the case of P.W.1 that A.O. demanded bribe amount so as to process, the evidence is lacking to prove the pendency of the official favour. The findings of the learned Special Judge in this regard were thorough appreciation of evidence on record. 17) Coming to the allegations of demand of bribe attributed against A.O. by P.W.1, P.W.1 and P.W.2 did not support the case of the prosecution. It is altogether different aspect that P.W.1 was ordered to be subjected to perjury for allegedly giving false evidence. Insofar as the demand attributed against A.O. prior to the lodging of Ex.P.1 is concerned, his evidence is that after payment of necessary challan, he submitted building application in the citizen charter counter of Municipal Corporation, Guntur on 22.08.2002. The A.O. concerned Building Inspector did not visit the premises. So, he met A.O. on 27.08.2002 at his office and enquired about the plan submitted in favour of P.W.1. He did not state anything about the plan. A.O. abused him in the presence of other staff members. One gentleman who noticed the abusing of A.O., advised him to approach the ACB, as such, he lodged Ex.P.1. So, he met A.O. on 27.08.2002 at his office and enquired about the plan submitted in favour of P.W.1. He did not state anything about the plan. A.O. abused him in the presence of other staff members. One gentleman who noticed the abusing of A.O., advised him to approach the ACB, as such, he lodged Ex.P.1. He further did not support the case of the prosecution with regard to the events in the pre-trap. His evidence in the post-trap is that they went to office of A.O. and found A.O. and on his approach the plan submitted by him was handed over to him by A.O. and he again says that plans were placed on the table. A.O. asked him to come after two days. He gave Rs.3,500/- to A.O. stating that the amount was towards discharge of debt. A.O. took the same and kept in his left side shirt pocket. Prosecution got declared him as hostile and during cross examination he denied the case of the prosecution. He admitted that his Section 164 of Cr.P.C. statement was recorded and Ex.P.2 was his signature. During cross examination by the learned Special Public Prosecutor, he deposed that he gave Ex.P.1 report with false recitals. He denied the case of the prosecution further. 18) Turning to the evidence of P.W.2, the site owner, he deposed that on 20.08.2002 he approached P.W.1 and on his behalf P.W.1 submitted his building plan and to his knowledge no Municipal Corporation employee inspected his site. He was informed by P.W.1 that some of the Corporation employees demanded amounts in thousands as bribe for approval of the plan. He did not agree to comply the demand for bribe. Later, he does not know what happened. As seen from the evidence of P.W.2, he also did not support the case of the prosecution. Insofar as the allegations of demand prior to the date of trap and on the date of trap, substantive evidence was missing. However, the prosecution sought to prove the guilt against the A.O. basing on a solitary circumstance that the tainted amount was recovered from the possession of A.O. The defence of A.O. is in tune with the evidence of P.W.1. However, the prosecution sought to prove the guilt against the A.O. basing on a solitary circumstance that the tainted amount was recovered from the possession of A.O. The defence of A.O. is in tune with the evidence of P.W.1. According to P.W.1, he repaid a sum of Rs.3,500/- to A.O. which was borrowed by him earlier from A.O. As evident from the post-trap proceedings marked under Ex.P.11, when the DSP asked A.O. to state as to what happened between him and P.W.1 prior to their arrival, he narrated that he received the amount from P.W.1 towards repayment of loan due by him. The evidence of P.W.1 had some basis from the narration in the post-trap. Under the circumstances, when there is no substantial evidence to prove the allegations of demand, the mere recovery of the tainted amount is not sufficient to prove the guilt. There is an admission by P.W.1 during cross examination by the learned defence counsel admitting the execution of Ex.D.2 hand letter written by him stating that he received a sum of Rs.3,500/- towards hand loan from A.O. The prosecution sought to impeach it as a fabricated document. 19) It is to be noted that when the version of A.O. was there in the post-trap that P.W.1 repaid a sum of Rs.3,500/- on the date of trap, it cannot be held that it was a fabricated document. The evidence on record goes to show that having set the criminal law in motion with serious allegations of demand of bribe against a public servant and having got laid a trap, P.W.1 destroyed the case of the prosecution. The learned Special Judge with sound reasons made a finding that P.W.1 appears to have given false evidence, as such, he be prosecuted for the allegations of perjury in accordance with law. Hence, P.W.1 paid of the price for his conduct. On that ground it cannot be held that the case against A.O. is true. 20) Turning to Section 20 of the P.C. Act, it runs as follows: 20. Hence, P.W.1 paid of the price for his conduct. On that ground it cannot be held that the case against A.O. is true. 20) Turning to Section 20 of the P.C. Act, it runs as follows: 20. Presumption where public servant accepts gratification other than legal remuneration.— (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 21) The Constitutional Bench of the Hon’ble Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi, (2022) SCC OnLine SC 1724 categorically held that to have the benefit of presumption under Section 20 of the P.C. Act, the duty of the prosecution is to establish the foundational facts. 21) The Constitutional Bench of the Hon’ble Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi, (2022) SCC OnLine SC 1724 categorically held that to have the benefit of presumption under Section 20 of the P.C. Act, the duty of the prosecution is to establish the foundational facts. Here, the foundational facts are that A.O. demanded P.W.1 to pay the bribe of Rs.3,500/-prior to the date of trap and on the date of trap. Evidence is lacking in this regard. According to P.W.1, contents of Ex.P.1 are false. Therefore, it is unsafe to believe the case of the prosecution especially P.W.1 destroyed the case of the prosecution. It is well settled that the mere recovery of tainted amount from A.O. cannot be a ground to sustain conviction especially when A.O. had a probable say in the post-trap narration explaining the circumstance in which he dealt with amount. The learned Special Judge on thorough appreciation of the evidence on record extended an order of acquittal. As it is an appeal against an order acquittal, the Appellate Court cannot interfere unless the findings in the judgment suffered with unreasonableness. Having regard to the above, I do not find any reasons to interfere with the judgment of the learned Special Judge. 22) In the result, the Criminal Appeal is dismissed. 23) The Registry is directed to forward the record along with copy of the judgment to the trial Court, on or before 20.12.2023. A copy of the judgment be marked to the learned Court where the perjury is pending. Consequently, miscellaneous applications pending, if any, shall stand closed.