Research › Search › Judgment

Telangana High Court · body

2023 DIGILAW 467 (TS)

P. Bhupati Rao v. State ACB, City Range-II

2023-06-27

K.SURENDER

body2023
JUDGMENT : 1. The appellant, who is arrayed as Accused Officer No.2 was convicted for the offence under Sections 7 and Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act (for short ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of six months and one year respectively, in default, to pay fine of Rs.500/- under each count, vide judgment in C.C.No.41 of 2002 dated 23.01.2008 passed by 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 Accused Officer No.1 (AO1) who died before commencement of trial was working as Assistant Section Officer and the appellant/Accused Officer No.2(AO2) was working as Assistant Secretary in Municipal Administration and Urban Development, Andhra Pradesh Secretariat. P.W.1 who was a Junior Assistant of K.M.G.H. School approached the Accused Officer No.1 and requested to process his representation pertaining to regularization of his services and to call for the remarks from the Director, Municipal Administration. The Accused Officer No.1 allegedly demanded an amount of Rs.1,000/- to be paid by 12.08.1999 and informed that out of the said amount, part of the amount has to be paid to this appellant. The said written complaint/Ex.P1 was given to P.W.7/DSP on 12.08.1999 at 9.30 a.m. P.W.7 asked P.W.1 to come within two hours along with the proposed bribe amount. Having caused discrete enquiries, complaint was registered. The independent mediators P.W.2 and another were called to be part of the trap party. The 1st mediator’s report was drafted in the office of ACB in the presence of P.Ws.1, 2, 7 and others. During the course of pre-trap proceedings under Ex.P5, the independent mediators enquired about the correctness of complaint from P.W.1. Phenolphthalein powder was smeared to the bribe amount by a constable. The relevancy of sodium carbonate solution test was also explained. After concluding the pre-trap proceedings, the trap party went to the office of Municipal Administration Section of Andhra Pradesh Secretariat. 3. P.Ws.1 and 2 went to the office. AO1 was not available in his seat. A.O.1 came to his seat after 20 minutes. AO1 asked whether P.W.1 brought the amount. He took out a file and shown a note containing his signature. At that time, note file not containing signature of this appellant/AO-2. 3. P.Ws.1 and 2 went to the office. AO1 was not available in his seat. A.O.1 came to his seat after 20 minutes. AO1 asked whether P.W.1 brought the amount. He took out a file and shown a note containing his signature. At that time, note file not containing signature of this appellant/AO-2. AO1 informed P.W.1 that the appellant did not sign as he had not received the bribe. From AO1’s room, both went to appellant’s chamber. AO1 and P.W.1 sat on chairs in front of the appellant. The amount of Rs.1,000/- was handed over to AO1 by PW1. AO1 kept Rs.500/- in his shirt pocket and gave remaining amount of Rs.500/- to appellant. The appellant kept the amount in right side pant pocket and informed that he would look into the file. Thereafter, P.W.1 came out and gave pre-arranged signal. The trap party entered into the office and conducted test on hands of AO1 and the appellant. Both the hands of AO1 and the appellant turned positive indicating that both of them handled the bribe amount. The post-trap proceedings were conducted and concluded after seizure of tainted currency of Rs.500/- each from AO1 and appellant. File EXP9 of PW1 and other relevant documents were also seized. Further investigation was handed over by trap laying officer to the inspector. 4. After conclusion of investigation, charge sheet was filed against AO1 and this appellant for the offence under Sections 7 and Section 13(1)(d) r/w Section 13(2) of the Act. Charges also framed by the learned special Judge for the said offences. Learned Special Judge examined P.Ws.1 to 7 and marked Exs.P1 to P13 on behalf of the prosecution. 5. Learned counsel appearing for the appellant would submit that firstly, there was no demand by the appellant and also admitted by the witnesses. Secondly, there was no official work pending with the appellant. In the said circumstances, when it is admitted that the appellant did not demand any amount, the question of convicting the appellant for the acceptance of bribery does not arise. P.W.3, who is examined on behalf of the prosecution clearly stated that the file of P.W.1, which is Ex.P9 was already signed by appellant and on the said basis P.W.3 endorsed as ‘please issue’. As seen from the file that was seized, the version of P.W.3 is correct. P.W.3, who is examined on behalf of the prosecution clearly stated that the file of P.W.1, which is Ex.P9 was already signed by appellant and on the said basis P.W.3 endorsed as ‘please issue’. As seen from the file that was seized, the version of P.W.3 is correct. If the file was seized from A.O.1 by the ACB on the trap day itself the signatures of the appellant and P.W.3 would not be found in the file Ex.P9. For the said reasons, the appellant has to be acquitted. 6. Learned counsel relied on the judgment of Hon’ble Supreme Court in the case of N.Vijaykumar v. State of Tamil Nadu, 2021 Crl.L.J 1353 in which, the Hon’ble Supreme Court held that demand is sine qua non to convict for the offence under Section 7 of the Act. If demand is not proved, mere recovery from the accused cannot be made basis to convict. Similar view was taken in the judgment of Hon’ble Supreme Court in the case of C.M.Girish Babu v. C.B.I, Cochin, High Court of Kerala, AIR 2009 SC 2022 and the also the judgment reported in the case of P.Satyanarayana Murthy v. District Inspector of Police and another, AIR 2015 SC 3549 . 7. On the other hand, learned Special Counsel appearing for the ACB would submit that this appellant had knowledge that the amount received from A.O.1 was not legal remuneration. There is no reason given by the appellant as to why he received the bribe amount from AO1. Though, P.W.1 did not state that the appellant/AO2 did not demand the amount, however in the back ground of the present case, when the money was shared for signing on the file of P.W.1, the appellant is liable for conviction. Accordingly, the Criminal Appeal deserves to be dismissed. He relied on the judgment reported in Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571 , wherein the Hon’ble Supreme Court held that if the prosecution establishes that the gratification was paid and accepted by the public servant, presumption arises under Section 20 of the Act. Counsel argued that the fact of currency notes being recovered from AO1 and appellant is sufficient corroboration of trap evidence. Counsel argued that the fact of currency notes being recovered from AO1 and appellant is sufficient corroboration of trap evidence. He also relied on the judgment of N.Narsing Rao v. State of Andhra Pradesh, (2001) 1 SCC 691 , the Hon’ble Supreme Court held that the demand and acceptance need not be necessarily direct in nature and on the basis of circumstances also, court can come to conclusion regarding the acceptance of bribe. 8. A glance at Ex.P1 complaint would clearly indicate that the following line has been inserted. “I was taken to Assistant Secretary introduced me and also informed as ‘Srinivas malli vachi repu manalni kalustadu’ [Srinivas will come tomorrow and meet us]. 9. In the cross-examination of P.W.1, P.W.1 admitted that AO2 did not demand any bribe from him at any time directly. The pre-trap proceedings Ex.P5 also do not indicate that the appellant has demanded any amount from P.W.1. It cannot be denied that it is on record that there was no demand by this appellant at any point of time. It is admitted by P.W.1 that there was no demand by this appellant and further demand by appellant is not mentioned in Ex.P1 complaint and also in Ex.P5, first mediator’s report. 10. It has to be examined whether the events that transpired in the present case are sufficient to infer that the appellant had demanded and accepted the bribe amount. It is the case of P.W.1 that he initially met AO1 on the trap day and both AO1 and P.W.1 went and met the appellant along with file of P.W.1. According to the evidence of P.W.1, the file was signed by AO1 and does not speak anything about any endorsement or signature of the appellant in the file Ex.P9. It is not in dispute that the relevant note file Ex.P9 was seized from AO1 by DSP ACB immediately after receiving signal from P.W.1. As already stated, P.W.1 did not state that AO2 has signed in the said file. If the file was seized from AO1, the version of the prosecution is belied on account of the endorsement being made by P.W.3 and also the signature of the appellant herein. According to the prosecution, the file was not taken to P.W.3. According to the evidence of P.W.3, signature of the appellant was in the note file which was sent to him. According to the prosecution, the file was not taken to P.W.3. According to the evidence of P.W.3, signature of the appellant was in the note file which was sent to him. Appellant had already passed orders in Ex.P9 and thereafter P.W.3 endorsed as ‘please issue’ in the file. The oral evidence of P.W.1 cannot be believed when Ex.P9 file is looked into. 11. As already discussed, initially, there is no evidence of demand that was made by the appellant and subsequent seizure of file and the events narrated by the prosecution witnesses create any amount of doubt regarding the version being correct. The actual happening is suppressed by prosecution. In the said circumstances, mere recovery of the tainted currency of Rs.500/- from the appellant cannot give any credibility to the case of the prosecution. Ex.P1 was tampered with by inserting a sentence with respect to the appellant. P.W.1’s admission that there was no demand by the appellant, Ex.P5 mediators report does not reflect any demand by the appellant. The evidence of witnesses regarding Exs.P9 and P5 is contrary to the contents of the file. In the said circumstances, prosecution case is doubtful and cannot be believed. 12. In the result, the judgment of the trial Court in C.C.No.41 of 2002 dated 23.01.2008 is set aside. Since the appellant is on bail, his bail bonds shall stand cancelled. 13. Accordingly, the Criminal Appeal is allowed. Consequently, miscellaneous applications, if any pending, shall stand closed.