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Telangana High Court · body

2025 DIGILAW 71 (TS)

Bollineni Ramana Rao v. State Of Telangana

2025-02-25

E.V.VENUGOPAL

body2025
JUDGMENT : E.V.VENUGOPAL, J. 1. Challenge in this criminal appeal filed under Section 374(2) Cr.P.C was laid to the judgment dated 29.12.2017 passed in C.C.No.29 of 2008 on the file of the Court of the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, whereunder the appellant herein was convicted and sentenced to suffer rigorous imprisonment for one year and also to pay fine of Rs.5,000/ - for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 and was further sentenced to suffer rigorous imprisonment for one year and also to pay fine of Rs.5,000/ - for the offence punishable under Section 13 (1) (d) r/ w 13 (2) of the Prevention of Corruption Act, 1988. 2 The factual matrix that led to the filing of this appeal is as follows: a. One Padma Rao (P.W.1) who was the Managing Director of Hiranya Solutions Private Limited, Hyderabad, gave report to the ACB officials alleging that the appellant who works as Superintendent in the office of Director, Works Accounts, A.P. demanded Rs.5,000/ - as bribe in connection with the fixation of commission to be paid to him. P.W.1 was supplying Data Processing Officers (who were called as Data Entry Operators subsequently) to Pay and Accounts Office and Assistant Pay and Accounts Offices under the Director, Works Accounts throughout the State of Andhra Pradesh. According to him they used to get Rs.4,000/ - towards salaries and services and Rs.400/ - towards service tax per person per month. b. As per G.O.Rt.No.2501 dated 13.7.2006, the DPOs should get Rs.6,500/ - and commission to be paid separately but the G.O.Rt.No.2501 was not implemented and the employees were demoted as Data Entry Operators from Data Processing Officers which resulted loss of Rs.1,000/ - per employee per month and the commission to be paid to him was not fixed. In that connection, the appellant demanded P.W.1 about one week prior to his report and as he did not yield the appellant got issued Memo dated 10.5.2007 which does not mention about the commission. When P.W.1 approached the appellant, he again reiterated his demand and as P.W.1 was not interested to pay the same, he approached the DSP, ACB and lodged Ex.P.3 report and subsequently the trap was conducted during which the appellant was caught red handedly for demanding and accepting the bribe amount. When P.W.1 approached the appellant, he again reiterated his demand and as P.W.1 was not interested to pay the same, he approached the DSP, ACB and lodged Ex.P.3 report and subsequently the trap was conducted during which the appellant was caught red handedly for demanding and accepting the bribe amount. A phenolphthalein test was conducted over both the hand fingers of the appellant as well as the inner linings of pant pockets from where the tainted amount was recovered and the right hand wash of AO and inner linings of pants pocket of the appellant yielded positive results. The tainted amount of Rs.5,000/ - was recovered from the possession of the appellant in the presence of mediator. The appellant was arrested on 11.5.2007 at 7.30 p.m. and was produced before the Court for judicial remand and subsequently he was released on bail. The 164 Cr.P.C. statement of P.W.1 was got recorded by the competent Magistrate. After completion of investigation and after obtaining necessary sanctions, the charge sheet was filed for the offences punishable under Sections 7, 13(1)(d) r/ w 13 (2) of the Prevention of Corruption Act, 1988. c. The appellant was examined under Section 239 Cr.P.C and charges under Sections 7, 13(1)(d) r/ w 13 (2) of the Prevention of Corruption Act, 1988 were framed against him for which he pleaded not guilty and claimed to be tried. During the course of trail, the prosecution examined P.Ws.1 to 9 and got marked as many as 33 exhibits as Exs.P.1 to P.33 besides M.Os.1 to 8. On behalf of the defence, the appellant Exs.D.1 and D.2 were marked. On behalf of Court Exs.X1 to X.12 were marked. 3 On an analysis of the entire material both oral and documentary, the trial Court found the appellant guilty of the offences under Sections 7, 13(1)(d) r/ w 13 (2) of the Prevention of Corruption Act, 1988 and accordingly convicted and sentenced him as stated supra by judgment dated 29.12.2017. Aggrieved, the accused preferred this appeal. 3 On an analysis of the entire material both oral and documentary, the trial Court found the appellant guilty of the offences under Sections 7, 13(1)(d) r/ w 13 (2) of the Prevention of Corruption Act, 1988 and accordingly convicted and sentenced him as stated supra by judgment dated 29.12.2017. Aggrieved, the accused preferred this appeal. 4 Sri D.Bala Kishan Rao learned counsel appearing on behalf of Sri Chittineni Vidyasagar, learned counsel for the appellant submitted that the trial Court failed to take into consideration the statement of the investigating officer that P.W.1 did not state before him the earlier demands as alleged on 2 nd and 3 rd May, 2007 and as per the version of the Investigating officer, the demand was made only on 10.5.2007 while receiving Ex.P.2 letter written by Director under acknowledgement intimating P.W.1 that he fixed the remuneration of the Data Processing Operators treating both the officers to same cadre officers and the commission to be fixed after receiving orders from the Government and the letter was sent to Government under Ex.P.17 and thus ought to have seen that P.W.1 is fully aware before lodging the complaint on 10.5.2017 and also on the date of the trap on 11.5.2017 and he also stated before the court that the appellant cannot do any favour to him on 10.5.2017 to put up the file for fixing commission to him and therefore ought to have disbelieved the evidence of P.W.1 and acquitted the appellant. 5 The learned counsel for the petitioner further contended that the trial Court failed to take into consideration Ex.P.12 the 2 nd mediators report and the statement of P.W.2, the mediator, and the statement of the investigating officer in respect of the variations about P.W.1 giving the tainted amount to the appellant. He further contended that the trial Court failed to take into consideration the evidence of P.W.3 – Director, Public Works Accounts who stated clearly that the appellant cannot do any favour to P.W.1 on the date of the trap and also stated that the appellant never attempted to influence him in fixing up the commission to P.W.1 and hence the finding of the trial Court that official favour is pending with the appellant on the date of trap is unsustainable. 6 The learned counsel for the petitioner further contended that the investigating officer admitted that P.W.1 did not state in Ex.P.3 that the appellant has demanded bribe on 02.5.2007 or on 03.5.2007 and that he further admitted that even in his 161 Cr.P.C. statement P.W.1 has not stated that the appellant demanded bribe on the said dates but what he stated to him was for the first time in 161 Cr.P.C. statement P.W.1 stated that the appellant demanded bribe of Rs.5,000/ - on 10.5.2007 and hence the evidence of P.W.1 cannot be believed and also for the reason that there was no possibility for demanding bribe from P.W.1 as the file was under circulation to the Director on 2 nd and 3 rd of May, 2007 and was pending with the Manager Accounts and Joint Director. 7 The learned counsel for the petitioner further contended that P.W.1 stated in his cross examination that he acknowledged the receipt of Ex.P.2 on 10.5.2007 and he was aware by the afternoon of 10.5.2007 that his commission would be fixed by the Government and the appellant could not take any decision in fixing the commission and he (P.W.1) also stated that it was mentioned in Ex.P.2 that the commission payable to him would be intimated later on the receipt of the necessary instructions form the Government and that P.W.1 also informed to the Dy.S.P, ACB at the time of lodging Ex.P.3 complaint that a letter was already addressed by the Director to the Government for fixation of commission. 8 The learned counsel for the petitioner further contended that insofar as the demand of bribe is concerned, there is variation in the evidence of P.W.1 and P.W.7. P.W.7, having knowledge that the appellant could not do any official favour to P.W.1 laid trap without verifying the record. P.W.1 and P.W.2 both admitted in their cross examination that they are close friends. That being so, P.W.2 cannot be an independent witness but can be termed as interested witness. 9 In support of his contentions, the learned counsel for the appellant relied on the following judgments: 1) Ram Prakash Arora vs. Punjab , [ (1972) 3 SCC 652 ] , 2) Pannalal Damodar Rathi vs. State of Maharashtra , [ (1979) 4 SCC 526 ], 3) Niraj Dutta vs. NCT Delhi , [2023 SCC OnLine SC 280] 4) C.K. Damodaran Nair Vs. Government of India , [ (1997) 9 SCC 477 ] , 5) Jaya Raj vs. State of A.P , [ (2014) 13 SCC 55 ], 6) A.Subair vs. State of Kerala , [ (2009) 6 SCC 450 ] , 7) K. Shanthamma vs. State of Telangana , [ (2022) 4 SCC 574 ] , 8) N.Vijaykumar vs. State of Tamil Nadu , [ (2021) 3 SCC 687 ] , 9) C.M.Girish Babu vs. CBI , [ (2009) 3 SCC 779 ] , 10) State of Kerala vs. C.P.Rao , [ (2011) 6 SCC 450 ], 11) C.Sukumaran vs. State of Kerala , [ (2015) 11 SCC 314 ] , 12) Meena vs. State of Maharashtra , [ (2000) 5 SCC 21 ], 13) Krishan Chander vs. State of Delhi , [ 2016 CRLJ 1079 SC] and Mir Mustafa Ali Hasmi vs. State of AP , [ (2024) 10 SCC 489 ] 10 On the other hand, Sri Sridhar Chikyala, learned Special Public Prosecutor for ACB submitted that the evidence on record coupled with Ex.P3 complaint and 164 Cr.P.C. statement of PW-1 themselves establish the ingredients of Section 7 of the P.C.Act, 1988. The factum of demand and acceptance was also established through the evidence of PWs.7 and 9, and also in view of the fact that recovery of tainted amount was also proved by subjecting the appellant to chemical test which yielded positive result, presumption u/ s. 20 of P.C.Act, 1988 can be drawn against the appellant. Moreover, it is not the case of the appellant that he resisted with his right hand when P.W.1 tried to thrust the bribe amount into his pocket. The learned Special Public Prosecutor further contended that Section 20 of the Prevention of Corruption Act, 1988 is rebuttable presumption and the AO did not rebut the said presumption and therefore, the court has to take into consideration that the demand and acceptance of gratification by the appellant. He submitted that the impugned judgment is based on sound appreciation of law and facts and hence no interference is warranted and prayed to dismiss the criminal appeal. He submitted that the impugned judgment is based on sound appreciation of law and facts and hence no interference is warranted and prayed to dismiss the criminal appeal. 11 As seen from the record it is to be seen that the quotation of PW-1 for the outsourcing contract has been accepted by the Director as he was doing already outsourcing work and the remuneration was fixed at Rs.4,000/ - per employee including the service tax and the commission of the agency merged with remuneration. He further submitted that PW-1 sent application Ex.P8 on 17.3.2007 requesting to accept the commission quoted by Jyothi Computer Services, first lowest and to implement G.O.No.2501 fixing up Rs.5,500/ - and Rs.6,500/ - for outsourcing employees besides his agency commission separately excluding @ 16.44%. The application was received by Smt.Sita Mahalaxmi (PW-6) through tappal and was inwarded in Inward Register vide Ex.P24 and the appellant has put up the note in Ex.P13 on 24.3.2007 to the Director (PW-3) on the basis of the application given by PW-1. Then the said note file was sent to the Manager (Accounts) which was again sent to the Joint Director on 29.3.2007 and it was sent to the Director who made an endorsement “ to elaborate on what is required to be done by the office and send the file” and in reverse process, the file reached the AO on 04.4.2007. He re-submitted the file to the Director on 04.4.2007 through proper channel and the same was not accepted by the Government and it was said that “ permitted the Director to continue with the existing arrangement till an alternative is fixed and submitted for orders” and the file was again sent back in the same reverse manner to the AO. Then a draft letter was prepared on 10.4.2007 under Ex.P26 and the appellant to put a note on 04.5.2007 in pursuance of the Memo received from the Government detailing the remunerations to be paid to the DPOs/ DEOs @ Rs.6,500/ - and Rs.5,500/ - per month respectively including the service tax without the commission to the agency, since the Government memo was silent with regard to the commission. The Government gave discretion to the Director to fix the remuneration to the cadre employees and accordingly, the Joint Director endorsed on the note. The Government gave discretion to the Director to fix the remuneration to the cadre employees and accordingly, the Joint Director endorsed on the note. There upon, the Director fixed the remunerations on the roles played by DPOs/ DOEs treating them as Data Entry Operators and fixed the remuneration @ Rs.5,500/ - and directed to send a letter to the Government for clarification regarding fixing of commission separately for the agency and a letter to that effect was sent to the Government under Ex.P17 dated 10.5.2017 for fixation of commission and copy of it was sent to PW-1 intimating the enhanced remuneration and also stated that with regard to the commission, letter was sent to the Government for fixation and the same was acknowledged by PW-1 under Ex.P18. 12 As could be seen from the record, PW-1 did not mention in his deposition about his giving application Ex.P8 to the Director on 17.3.2007. The evidence of PW-1 goes to show that he met the appellant on 2 nd or 3 rd of May, 2007 and the appellant demanded him for payment of bribe of Rs.5,000/ - for implementation of the GO and fixation of commission. But in his cross-examination, he admitted that the dates as 2 nd or 3 rd of May, 2007 is not written in complaint Ex.P3 and he also did not state before Magistrate in his 161 Cr.P.C. statement that on those dates the appellant demanded for the payment of bribe. PW-1 further stated that he did not state before the DSP, ACB at the time of recording his statement that the appellant demanded him on 2 nd or 3 rd of May, 2007 for the payment of bribe of Rs.5,000/ - for processing the file for revision of salaries. This version is supported by P.W.7 the investigating officer who admitted that PW-1 did not state in Ex.P3 that the appellant has demanded bribe on 02.5.07 or on 03.5.07 and he further admitted that even in his 161 Cr.P.C. statement, PW-1 has not stated that the appellant demanded bribe on 02.5.07 or 03.5.07 but what he stated to him for the first time in his 161 Cr.P.C. statement about the demand of Rs.5,000/ - on 10.5.2007. Therefore, it is very clear that PW-1 is not speaking the truth about demand on 2 nd or 3 rd May, 2007 by the appellant demanding Rs.5,000/ -. Therefore, it is very clear that PW-1 is not speaking the truth about demand on 2 nd or 3 rd May, 2007 by the appellant demanding Rs.5,000/ -. So there was no possibility for demanding bribe from PW-1 as the file was under circulation to the Director on 2 nd and 3 rd of May, 2007 and was pending with Manager Accounts and Joint Director. 13 It was further argued that the complaint Ex.P3 was given to the Dy.S.P. at 04.00 pm on 10.5.2007, PW-1 had knowledge that the Director Accounts enhanced the remuneration to cadre of Data Entry Operator under Ex.P2 dated 10.5.2007 served on him and the said letter was given to him by the Director of Works Accounts under Ex.P18. In that letter, the monthly salary of Data Entry Operators was fixed at Rs.5,500/ - per month. So there was a chance or situation for PW-1 to be unhappy against the Director for demoting cadre employee Data Processing Officer equated with the Data Entry Operator remuneration at Rs.5,500/ - instead of Rs.6,500/ - drawn by DPO and he also had knowledge from Ex.P2, the Director wrote a letter for fixation of the commission payable to his firm. PW-1 stated in cross examination that he acknowledged the receipt of Ex.P2 on 10.5.2007 and he was aware by the afternoon on 10.5.2007 that his commission would be fixed by the Government and appellant could not take any decision in fixing the commission. He also stated that it was mentioned in Ex.P2 that the commission payable to him would be intimated later on the receipt of the necessary instructions from the Government. He also informed the DSP, ACB at the time of lodging complaint Ex.P3 that a letter was already addressed by the Director to the Government for fixation of commission. PW-7 investigating officer stated that PW-1 has not produced Ex.P2 along with Ex.P3 to him PW-1 and that he has not submitted any other document including Ex.P8 and Ex.P17. PW-1 stated that the Government has not fixed the commission charges and the Government only has to fix commission and the appellant could not do anything with respect to that fact. PW-3 asserted that the appellant is not having powers to fix the commission, the appellant did not bring pressure to fix the commission or deal with the file in the manner suggested by him. PW-3 asserted that the appellant is not having powers to fix the commission, the appellant did not bring pressure to fix the commission or deal with the file in the manner suggested by him. This clearly shows there is no possibility for the appellant to demand on 10.5.2007 and PW-1 meeting the appellant in the office for this purpose except detailing Ex.P2 and the appellant demanding bribe for processing the file for fixation of commission. Therefore, the evidence of PW-1 insofar as the demand of bribe on 10.5.2007 cannot be believed. It is, therefore, very clear that the appellant cannot show any favour to the complainant. Thereafter, the DSP knowing fully well that the appellant cannot do any favour to P.W.1 for processing the file without the directions from the Government received for the letter sent to the Government under Ex.P17, decided to lay trap against the appellant on 11.5.2007. 14 Further, on the date of trap, as per the evidence of P.W.1 the demand of bribe was made by appellant after consuming the tea and he received the tainted cash with right hand and kept it in right side pants pocket. There is no corroboration for his version from mediators or the trap laying officer. This was not witnessed by the mediators and trap party. As per the evidence of PW-7 and the contents in Ex.P12 and as per version of PW-1 the appellant said to have received the amount before coming to tea stall. Therefore, the demand and acceptance as stated by him to the mediator in Ex.P12 and the statement given by him under Ex.D1 renders his evidence lack of credence. 15 The evidence of PW-2, the independent witness, is that the version given by PW-1 to the effect that while PW-1 and the appellant were on the way to the tea stall, the appellant demanded PW-1 for payment of bribe and then PW-1 handed over the tainted cash to the appellant and the same was received by the appellant with his right hand and kept in right side pant pocket and thereafter both of them went to the tea stall and had tea. There is no mention that the appellant demanded at the tea stall and accepted the amount. There is no mention that the appellant demanded at the tea stall and accepted the amount. 16 Therefore, from the above discussion what emerges is that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1) (d) (i) and (ii) of the P.C Act. In order to bring home the guilt of the Accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. Mere acceptance or receipt of an illegal gratification without anything more would not make it an offence Under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, Under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe- giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment Under Sections 13(1)(d)(i) and (ii) of the Act. 17 In the instant case the prosecution failed to prove that any official favour is pending with the appellant as on the date of giving complaint by P.W.1 inasmuch as PW-1 himself stated in cross examination that he acknowledged the receipt of Ex.P2 on 10.5.2007 and he was aware by the afternoon on 10.5.2007 that his commission would be fixed by the Government and appellant could not take any decision in fixing the commission. He also stated that it was mentioned in Ex.P2 that the commission payable to him would be intimated later on the receipt of the necessary instructions from the Government. It is the settled convention in such cases that the Trap Lying Officer, makes efforts to verify the factum of demand of bribe by public servant before initiating the trap proceedings. The factum of demand of bribe can also be verified by recording telephonic conversation between decoy and suspect public servant. It is the settled convention in such cases that the Trap Lying Officer, makes efforts to verify the factum of demand of bribe by public servant before initiating the trap proceedings. The factum of demand of bribe can also be verified by recording telephonic conversation between decoy and suspect public servant. Here, in instant case, Investigating Officer does not seem to have undertaken said exercise at all. Mere recovery of money by itself, in my view, may not be sufficient to show that the money that is recovered was an illegal gratification received by Accused Officer for doing any official favour. Failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. Therefore, even for said reason prosecution version comes under shadow of doubt. 18 In that view of the matter and for the aforesaid discussion, I am of the considered view that the prosecution failed to bring home the guilt of the appellant for the charged offences beyond reasonable doubt and accordingly the appellant deserves the relief. 19 In the result, the appeal is allowed setting aside the judgment dated 29.12.2017 passed in C.C.No.29 of 2008 on the file of the Court of the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad. The appellant is acquitted of the offences punishable under Section 7 and Section 13 (1) (d) r/ w 13 (2) of the Prevention of Corruption Act, 1988. His bail bonds shall stand cancelled. The appellant is entitled to refund of the fine amount. 20 As a sequel, miscellaneous petitions, if any, pending in this criminal appeal shall stand closed.