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2023 DIGILAW 434 (TS)

Gajawada Manikyam v. State of Telangana

2023-06-13

K.SURENDER

body2023
JUDGMENT : 1. Criminal Appeal No.200 of 2008 is preferred by A2 who was the then Upper Divisional Clerk and Criminal Appeal No.202 of 2008 is preferred by A1, who was the then Junior Accounts Officer. Both were working in the office of Divisional Electrical Engineer, Operations & Constructions Division, Kamareddy. Both the appellants/A1 and A2 were convicted for the offence under Sections 7 and also under Section 13 (1) (d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 (for short “the Act of 1988”) and sentenced to undergo Rigorous Imprisonment for a period of one year under each count vide judgment in Calendar Case No.29 of 2004, dated 12.02.2008 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Aggrieved by the same, the present appeals are filed. 2. Briefly stated, the case of the prosecution is that the defacto complainant/L.W.1 (died prior to commencement of trial) approached the ACB authorities and lodged a complaint Ex.P10 alleging that he worked as Additional Assistant Engineer and was suspended on 27.09.1997 and was later reinstated. For regularization of period of his service and for processing his pension papers, the DEE needed Last Pay Certificate and Service Book from the Divisional Office, Kamareddy. An application was filed for issuance of the Last Pay Certificate and sending Service Book to Armoor Division where he retired. The DEE directed the appellant herein to verify the records and put up the office note for issuing the Last Pay Certificate. Both the appellants verified and put up a note to DE for issuance of the said certificate, which was approved by the DEE on 03.06.2003. 3. Both the appellants allegedly demanded an amount of Rs.20,000/- for sending the file for the purpose of processing on the very same day i.e., 03.06.2003. On request, the bribe amount was reduced to Rs.6,000/-. The complainant again approached the appellants on 16.06.2003 and 17.06.2003 and pleaded to send the file for processing and informed them that he would pay the bribe later. Again on 02.07.2003 also request was made to the appellants, but unless the bribe was paid, the appellants refused to send the file. 4. The complainant again approached the appellants on 16.06.2003 and 17.06.2003 and pleaded to send the file for processing and informed them that he would pay the bribe later. Again on 02.07.2003 also request was made to the appellants, but unless the bribe was paid, the appellants refused to send the file. 4. Fed up with the harassment of these appellants in demanding bribe and not sending the file, written complaint was filed with the ACB on 07.07.2003 and handed over at 11.30 p.m. The said complaint, after verification was registered on 09.07.2003 at 9.00 a.m on which date, the trap was laid. 5. The First Mediator’s report Ex.P1 was drafted in the R & B guest house by the trap party at 12.10 p.m and having concluded the said proceedings at 1.20 p.m, the Trap Party left the guest house and approached the office of the Divisional Electrical Engineer, Kamareddy. 6. The DSP/Trap Laying Officer (P.W.6) directed the defacto complainant and L.W.3 (D.Sangaiah), an independent mediator to the proceedings to go into the office and follow the complainant to watch what transpired in between the complainant and the appellants. The complainant and said Sangaiah entered into the office at about 4.35 p.m and after ten minutes, the said witness Sangaiah came out of the office and waited outside the gate. At about 5.30 p.m, the complainant gave a pre-arranged signal to the trap party indicating the receipt of bribe by the appellants. Immediately, the trap party entered into the office premises and found the appellants. Sodium carbonate solution was prepared and A2 was asked to rinse his right hand fingers which turned positive. On questioning, A2 took out currency notes from his pant pocket and produced before the mediators. Panchanama/Ex.P5 was drafted and relevant documents were seized. Later, the investigation was handed over to P.W.7/Inspector. The Inspector, having concluded investigation and obtaining sanction from the relevant authorities, filed the charge sheet. 7. During the course of trial, the witnesses P.Ws.1 to 7 were examined on behalf of the prosecution and Exs.P1 to P12 were marked. On behalf of the appellants, D.Ws.1 to D.W.5 defence witnesses were examined and Exs.D1, X1 and X2 were also marked. 8. Learned Special Judge having found that the appellants have demanded and accepted the bribe amount, convicted the appellants as stated supra. 9. On behalf of the appellants, D.Ws.1 to D.W.5 defence witnesses were examined and Exs.D1, X1 and X2 were also marked. 8. Learned Special Judge having found that the appellants have demanded and accepted the bribe amount, convicted the appellants as stated supra. 9. Learned counsel appearing on behalf of the appellants would submit that the de facto complainant died even prior to the commencement of trial. The official witnesses who speak about the alleged reasons for demand of bribe regarding the Last Pay Certificate have turned hostile. The said official witnesses are P.Ws.2 and 3, who are the then Assistant Executive Engineer and Record Assistant during the relevant time in the office of the DEE. 10. It was further argued that though P.W.1 was examined, who acted as one of the mediator to the trap proceedings, he is not direct witness to the transaction in between the complainant and the appellants, as such, his evidence and the evidence of the DSP and other trap members cannot be made basis for convicting the appellants. In the absence of proof of demand, mere recovery from the accused would not entitle conviction. He relied on the judgment of Hon’ble Supreme Court in the case of B.Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55 , wherein the Hon’ble Supreme Court, in the facts of the case found that demand of illegal gratification is sine qua non to constitute an offence under Section 7 of the Act. Mere recovery of the currency notes cannot be made basis to convict the accused. Further, the presumption can be raised under Section 20 of the Act only when there is proof of acceptance of illegal gratification and such gratification was received for doing or forbearing to do an official act. Proof of acceptance of illegal gratification would be valid if there is proof of demand. In the absence of such proof of demand, mere recovery cannot be made basis to draw presumption under Section 20 of the Act. 11. Learned counsel for the appellants also relied on the judgment of Hon’ble Supreme Court in the case of P.Satyanarayana Murthy v. District Inspector of Police, State of A.P and another, (2015) 10 Supreme Court Cases 152. In the absence of such proof of demand, mere recovery cannot be made basis to draw presumption under Section 20 of the Act. 11. Learned counsel for the appellants also relied on the judgment of Hon’ble Supreme Court in the case of P.Satyanarayana Murthy v. District Inspector of Police, State of A.P and another, (2015) 10 Supreme Court Cases 152. The Hon’ble Supreme Court under similar circumstances found that without proof of demand, mere recovery would not be sufficient to convict the accused for the charge under Sections 7 and Section 13(1)(d) of the Act. He also relied on the judgments of Hon’ble Supreme Court; i) A.Subair v. State of Kerala, (2009) 6 Supreme Court Cases 587; ii) State of Kerala and another v. C.P.Rao, (2011) 6 Supreme Court Cases 450; iii) C.M.Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 Supreme Court Cases 779, wherein the Hon’ble Supreme Court has found that demand is sine qua non for conviction and mere recovery cannot be made basis to convict the accused. 12. On the other hand, learned Special Counsel appearing for the ACB would submit that there is ample evidence to show that the amount was recovered from A2. Though A2 pleaded that it was part of the amount taken as a loan, the same cannot be believed and the findings of the learned Special Judge have to be upheld. In the said circumstances, both the Criminal Appeals have to be dismissed. 13. Learned Special Counsel relied on the judgment of Hon’ble Supreme Court in the case of Neeraj Dutta v. State (Government of NCT of Delhi), 2022 LiveLaw (SC) 1029 and argued that hostility of the complainant cannot be made basis to record acquittal and the Court can rely upon the other evidence adduced by the prosecution to infer demand of bribe. He also relied on the judgment of Hon’ble Supreme Court in the case of N.Narsinga Rao v. State of Andhra Pradesh, Appeal (Crl.)719 of 1995, dated 12.12.2000 and argued that the presumption can be drawn on the basis of the amount being recovered from the accused. He also relied on the judgment of Hon’ble Supreme Court in the case of T.Shankar Prasad v. State of A.P., (2004) 3 Supreme Court Cases 753 wherein the Hon’ble Supreme Court held that presumption under Section 20 of the Act is a legal presumption. He also relied on the judgment of Hon’ble Supreme Court in the case of T.Shankar Prasad v. State of A.P., (2004) 3 Supreme Court Cases 753 wherein the Hon’ble Supreme Court held that presumption under Section 20 of the Act is a legal presumption. However, the said presumption is rebuttal by proof and not by mere explanation. 14. In the present case, the appellant/A2 has taken a specific plea that the amount which was recovered from his pocket was the loan which was repaid by the defacto complainant. In support of his claim, witnesses D.Ws.3 and 4 were examined to speak about the advancement of loan to the defacto complainant by the appellant/A2. P.W.3, who is also an official witness has stated during the course of cross-examination that the appellant/A2 had informed the ACB authorities that the amount of Rs.6,000/- which was handed over by the complainant was towards repayment of hand loan. 15. The essential ingredient of proof of demand is missing in the present case. The complaint/Ex.P10 cannot be made basis to infer that there was a demand by the appellants herein when the said complaint is not proved. Unfortunately, the complainant died even prior to the trial. Mere marking of the complaint through the mediator will not entail the prosecution to rely on the contents of the complaint unless the said complaint is corroborated by the evidence which has to be placed on record during the course of trial. Surprisingly, the other mediator who was asked to enter into the office of the DEE along with the complainant came out of the office ten minutes after entering into office, contrary to the directions of the Trap Laying Officer. No explanation is given regarding the said conduct. Nearly half an hour thereafter, the signal was relayed and the trap party members entered into the office. The prosecution utterly failed to prove the demand aspect in the present case. 16. Regarding the pending official work, both P.Ws.2 and 3 who are official witnesses did not support the case of the prosecution. On the said basis also, it cannot be inferred that any work was pending with the appellants herein regarding the Last Pay Certificate. Though P.W.4 was examined to state that the Last Pay Certificate was ready, his evidence does not lend any credibility to the factum of demand allegedly made by the appellants. 17. On the said basis also, it cannot be inferred that any work was pending with the appellants herein regarding the Last Pay Certificate. Though P.W.4 was examined to state that the Last Pay Certificate was ready, his evidence does not lend any credibility to the factum of demand allegedly made by the appellants. 17. In the present facts, when the prosecution has utterly failed to prove the factum of demand, placing reliance on the judgments of the Hon’ble Supreme Court cited supra by the learned counsel for the appellants, mere recovery is of no consequence. 18. In the result, the conviction recorded by the trial Court in CC No.29 of 2004 is liable to be set aside and accordingly set aside and the appellants are acquitted. Since the appellants are on bail, their bail bonds shall stand cancelled. 19. In the result, the Criminal Appeal is allowed. Consequently, miscellaneous applications, if any, shall stand closed.