Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 - Defense plea that D.S.P. placed amount in the table drawer in stealthy manner - but his right hand was tainted with colour - prosecution proved it's case = B.Vittalaiah..... Appellant/Accused State of Andhra Pradesh Rep. by its Special P.P. for ACB,High Court of A.P, Hyderabad.... Respondent = 2014 (March. Part ) judis.nic.in/judis_andhra/filename=11032
Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 - Defense plea that D.S.P. placed amount in the table drawer in stealthy manner - but his right hand was tainted with colour - prosecution proved it's case =
Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988
(for short 'P.C. Act') and sentenced to undergo RI for a period of one year and
to pay a fine of Rs.1,000/- in default to undergo SI for a period of three
months on two counts. =
The defence plea that
DSP after entering his room himself opened the drawer and took the tainted
amount and handed over to LW4 and then caught hold the hands of A.O and
thereafter conducted chemical test and that is why the test yielded positive
result because the phenolphthalein molecules were transferred from the hands of
DSP to AO was denied by PWs.3 and 9 and their version is that chemical test was
first conducted and later the tainted amount was recovered and in the process,
the DSP did not hold the hands of AO. Therefore, the evidence of PWs.3 and 9
corroborates the evidence of PWs.1 and 2 to the effect that A.O upon demand and
acceptance of bribe amount himself kept the same inside the table drawer.
Therefore, on a conspectus of evidence on record, it is clear that the
prosecution by cogent evidence could establish that the A.O demanded and
accepted the bribe amount from PW1. Therefore, the statutory presumption under
Section 20 of P.C Act follows. The A.O failed to rebut the said presumption by
showing the preponderance of probabilities. As already observed, the defence
theory put-forth by A.O is unbelievable. Therefore, the A.O is guilty of the
charges under Sections 7 and 13(1) (d) r/w 13 (2) of PC Act. The trial Court
rightly convicted and sentenced him. I find no merits in the appeal.
14) In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court.
2014 (March. Part ) judis.nic.in/judis_andhra/filename=11032
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1830 of 2005
18-03-2014
B.Vittalaiah..... Appellant/Accused
State of Andhra Pradesh Rep. by its Special P.P. for ACB,High Court of A.P,
Hyderabad.... Respondent
Counsel for Appellant: Sri A. Hari Prasad Reddy
Counsel for Respondent : Sri R. Ramachandra Reddy,
Special Standing Counsel for ACB
<Gist:
>Head Note:
?Cases referred:
1) AIR 1976 SC 1497
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.1830 of 2005
JUDGMENT:
This Criminal Appeal is directed against the judgment dated
24-11-2005 in C.C.No.17 of 1995 passed by the learned Additional Special Judge
for SPE & ACB cases, City Civil Court, Hyderabad whereby and whereunder the
Accused Officer (A.O) was convicted for the offences under Sections 7 and
13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988
(for short 'P.C. Act') and sentenced to undergo RI for a period of one year and
to pay a fine of Rs.1,000/- in default to undergo SI for a period of three
months on two counts.
2) The factual matrix of the case, which led to file the instant appeal, is
thus:
a) The A.O-Vittalaiah worked as Head Assistant in Mandal Revenue Office,
Ibrahimpatnam Mandal, Ranga Reddy District from 01-05-1993 to 05-07-1994.
b) PW1-Ravula Yellaiah is the resident of Rayapale village of Ibrahimpatnam
Mandal, Ranga Reddy District. He got Form 'D' certificate on 16-04-1993 in his
favour to an extent of Ac.2.00 covered by Sy.No.263 of Kalsa Ibrahimpatnam
Village, Ranga Reddy district. While so, his name was not shown as cultivator in
pahani for the year 1992-93. Therefore, he submitted a representation in the
month of December, 1993 to the District Collector, Ranga Reddy District and also
to the Mandal Revenue Officer (MRO), Ibrahimpatnam to enter his name in the
pahani. He also contacted the Village Administrative Officer (VAO), Kalsa
Ibrahimpatnam of Ranga Reddy district for rectification of error in the pahani,
but of no avail. Then PW1 contacted the A.O and explained his problem. Again in
the month of June, 1994 he met the AO with regard to rectification of error. At
that time A.O demanded Rs.500/- from PW1 as bribe to influence V.A.O and M.R.O
to get his name entered in the pahani for the year 1992-93. Again on
29-06-1994, PW1 met the A.O in his office and submitted a representation for
inclusion of his name in Jamabandi record in respect of Ac.2.00 of Kalsa
Ibrahimpatnam village. Then the A.O reiterated his earlier demand for which PW1
kept silent. On 01-07-1994 when PW1 contacted A.O with regard to his
representation, A.O reiterated his earlier demand of Rs.500/- as bribe and
directed PW1 to pay the same within four or five days. As PW1 was not willing
to pay the bribe amount, he approached Deputy Superintendent of Police (DSP),
ACB, Hyderabad Range, Hyderabad on 02-07-1994 and submitted Ex.P.1-complaint.
Basing on Ex.P.1-complaint, the DSP registered a case in Cr.No.6/ACB-HR/94 for
the offences under Sections 7 and 11 of PC Act against AO. On 05-07-1994 DSP
arranged for trap and the A.O was successfully trapped on the same day at 2:15
pm in his office and the test on right hand of the A.O yielded positive result.
The tainted amount of Rs.500/- (MO3) was recovered at the instance of A.O from
his table drawer. After obtaining sanction order, the Investigating Officer laid
the charge sheet.
c) On appearance of A.O, charges under Sections 7 and 13(1) (d) r/w 13(2) of
P.C. Act were framed. The A.O denied charges and claimed to be tried.
d) During trial, PWs.1 to 9 were examined and Exs.P1 to Ex.P20 and M.Os.1 to 8
were marked on behalf of prosecution. On behalf of AO, DWs.1 to 3 were examined
and Ex.D1 was marked.
e) A perusal of the judgment would show that the trial Court having relied upon
the evidence of PWs.1 to 9 held that the A.O demanded bribe for doing an
official favour i.e., for implementation of D Form Patta and inclusion of PW1's
name in Jamabandi record in respect of land Ac.2.00 of Kalsa Ibrahimpatnam
village. In this process, trial Court referred two main arguments advanced on
behalf of A.O i.e. (1) that no official favour was pending with A.O and that his
duty was only to maintain the attendance register and supervise the works of
other staff members and it was not his duty to effect rectification in pahani
register and (2) that the A.O never demanded and accepted the bribe and on the
other hand, PWs.1 and 2 stealthily entered to his room and implanted amount in
his drawer during his absence. The trial Court held that those arguments are
untenable and convicted and sentenced the A.O as stated supra.
Hence, the appeal.
3) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for
appellant/A.O and Sri R.Ramachandra Reddy, learned Special Standing Counsel for
ACB cases (for short "Spl.SC").
4 a) Criticizing the conviction and sentence passed by the trial Court learned
counsel for appellant firstly argued that no official favour was pending with
A.O to demand any bribe from PW1. Expatiating it, he submitted that A.O was only
Head Assistant in MRO's office, Ibrahimpatnam, whose duties were to maintain
attendance register and supervise the works of other staff members and it was
not his duty to either maintain the pahani register or make entries in it,
whereas the work of PW1 was that his name was missing in the concerned pahani
register for the year 1992-93 and his request was to rectify the said mistake
and enter his name in the concerned pahani register. Having regard to the
nature of duties of AO, it is highly improbable, nay impossible, for him to
demand bribe from PW1, since he was not competent to do the said work. It is the
V.A.O who has to enter such entries in the concerned pahani register. He thus
argued that at the very threshold, the prosecution case is quite unbelievable.
b) Secondly, learned counsel argued that A.O never demanded bribe from PW1
either prior to 29-06-1994 or subsequent thereto, much less on the date of trap
i.e. on 05-07-1994 and he never accepted any amount. On the other hand, PW1 on
the misconception that A.O was responsible for effecting entries in the pahani
register and he was not doing the same, implicated him in a false case by
implanting the tainted bribe amount in the office table drawer of A.O during his
absence. Learned counsel submitted that A.O could successfully probablise his
defence plea through two circumstances. Referring Ex.D1-portion of 164 Cr.P.C.
statement of PW2, learned counsel submitted that in Ex.D1 PW2 stated that by the
time PW1 and himself went to the room of AO, he was elsewhere and on seeing them
he came to his seat. Learned counsel argued that this part of the statement of
PW2 would indicate that by the time PWs.1 and 2 went into the room of A.O he was
not there which probablises the fact that they had an opportunity to
surreptitiously implant money in his table drawer. Then, learned counsel brought
another circumstance to the notice of this Court. By referring Ex.P8 (second
mediator's report), learned counsel submitted that spontaneous reply of A.O in
Ex.P8 was to the effect that he has not demanded or accepted any bribe amount
from the complainant (PW1). This would probablise his defence plea that amount
might have been implanted to implicate him in this case.
c) Thirdly, showing the reason for A.O's right hand yielding positive result
to chemical test, learned defence counsel argued that after the trap party
entered the room of A.O, the D.S.P picked up the tainted bribe amount from the
table drawer of A.O and handed over to LW4 and thereafter caught hold the hands
of A.O. In that process, the phenolphthalein molecules must have transferred to
the hand of A.O. He thus prayed to allow the appeal.
5 a) Per contra defending the judgment of the trial Court, learned Spl.SC
firstly argued that though A.O was not directly concerned to effect entries in
pahani books but still he being Head Assistant competent to influence V.A.O and
other concerned staff members in the office to make rectification in the pahani
registers and therefore, there is nothing unusual if he by abusing his official
position demanded bribe. He argued that to attract a charge under Section 7 of
P.C Act, the public servant who demanded bribe may not be competent to do the
official favour by himself but suffice if he demanded bribe from the complainant
to influence the concerned persons to do the work by misusing his official
position. On this point he relied upon the decision reported in Chaturdas
Bhagwandas Patel v. The State of Gujarat1. He submitted that there is ample
evidence that A.O demanded bribe from PW1 to get the rectification work done
through V.A.O and by influencing the MRO. Hence, he is liable for charge under
Section 7 of PC Act.
b) Secondly, opposing the implant theory learned Spl.SC argued that PWs.1 and
2 being Shepherds and rustic villagers, it is highly unbelievable that they
would enter the room of A.O during his absence and venture to implant the bribe
amount. Further, they have no proven animosity against A.O to implicate him in
a false case. Regarding the mentioning in Ex.D1, learned Spl.SC argued that the
statement of PW2 at best would show that when PWs.1 and 2 went to the office
room of A.O he was not sitting in his seat, but he was very much present in that
room only. That was why on seeing both of them (he emphasised the words "on
seeing us" in Telugu) he came to his seat to discuss with them. From Ex.D1-
statement of PW2, we cannot infer A.O was not at all present in his room when
PWs.1 and 2 entered his room. So, the question of PWs.1 and 2 implanting money
in his alleged absence does not arise. He argued that from this and the chemical
test of the right hand of A.O yielding positive result, it can safely be
concluded that A.O further demanded and accepted bribe amount from PW1 just
before trap and he himself kept the amount in his table drawer. Hence, he is
guilty of the offence. Thus, he prayed to dismiss the appeal.
6) In the light of above rival arguments, the point for determination in this
appeal is:
"Whether conviction and sentence passed by the trial Court against A.O are
factually and legally sustainable?"
7) POINT: The charges against A.O are under Sections 7 and 13(1)(d) r/w 13(2)
of PC Act on the accusation that the A.O demanded and accepted a sum of Rs.500/-
as gratification other than legal remuneration from PW1 as a motive for doing an
official favour i.e. for getting his name entered in the pahani register for the
year 1992-93 in view of D Form patta certificate issued by M.R.O. in favour of
PW1 assigning two acres of land in Sy.No.263 of Kalsa Ibrahimpatnam on 16-04-
1993. To sustain the above charges the prosecution is required to establish by
cogent evidence:
i) that the A.O during the relevant period is a public servant
ii) that the A.O accepted gratification other than legal remuneration of
Rs.500/- from PW1
iii) that the said gratification other than legal remuneration was accepted by
A.O to do an official favour i.e. to get the name of PW1 entered in the pahani
register for the year 1992-93 in an extent of 2 acres of land covered by
Sy.No.263 of Kalsa Ibrahimpatnam village.
If the prosecution is able to establish these facts, then the mandatory
presumption under Section 20 of PC Act shall follow. Hence, it has to be seen
whether the prosecution could establish its case beyond reasonable doubt as held
by the trial Court.
8) It is an admitted fact that A.O worked as Head Assistant in M.R.O. Office,
Ibrahimpatnam Mandal, Ranga Reddy District from 01-05-1993 to 05-07-1994 and
thus he was a public servant within the meaning of Section 2(c) of PC Act.
9) The case of PW1 is that himself and his father were in occupation of
2 acres of Government land in Sy.No.263 of Kalsa Ibrahimpatnam and Government
issued D Form patta in his favour on 16-04-1993 and their names were entered in
the cultivation columns of pahani registers except for the year 1992-93 and so
in December, 1993 he submitted a representation to the District Collector, Ranga
Reddy District and Mandal Revenue Officer, Ibrahimpatnam. His further case is
that in this regard the M.R.O. instructed his staff to look after the matter and
when he met A.O he replied that he would see the matter later and in June, 1994
when he met A.O he demanded bribe of Rs.500/- and told that if PW1 pay that
amount he would instruct V.A.O to enter his name in the pahani and he would also
recommend to MRO. Subsequently, on 29-06-1994 when PW1 met AO, he reiterated his
earlier demand. Similarly, when PW1 met A.O on 01-07-1994, he again reiterated
his demand and told that if he pay the amount within four or five days only his
work would be done. Unwilling to pay the bribe amount PW1 gave Ex.P1-report to
DSP, ACB who laid trap against AO.
Now, in the light of above facts, the contentions put-forth on behalf of
appellant/A.O have to be looked into.
10) The first contention raised by the learned counsel for appellant is that
there was no official favour pending with A.O to demand bribe.
He contended that A.O being Head Assistant was not competent to maintain the
pahani registers and make entries therein. His duty was to maintain attendance
register and supervise the work of other staff members. Therefore, practically
A.O had nothing to do with the rectification of entries in the concerned pahani
relating to PW1. As such it was not possible for him to demand bribe.
On appreciation of facts and evidence, it must be stated that this
argument is untenable. Regarding this contention, we will find in the evidence
of PW6-R.Linga Reddy the then M.R.O. Ibrahimpatnam that the duties of A.O are to
check up attendance register and also supervise the work and files maintained by
other staff. He stated that M.R.O. only issues patta and A.O is no way connected
with making entries in the register. In addition to this witness-DW1-the then
ASO, DW2-the then Senior Assistant and DW3-the then Village Assistant of M.R.O.
Office, Ibrahimpatnam also deposed in similar lines to the effect that duties of
A.O are to maintain the attendance register of employees, to supervise the
files, to receive the petitions in the absence of M.R.O. and to route the files
to M.R.O. for his approval. They stated that A.O will not be maintaining the
pahani registers and it is the duty of V.A.O to maintain those registers. In the
light of aforesaid evidence, it is contended on behalf of appellant/A.O that no
official favour was pending with him during the relevant period so that he could
demand any bribe. Though this argument apparently sounds correct, but not so in
reality. It must be noted that to sustain a charge under Section 7 of PC Act it
is not necessary for the prosecution to establish that a public servant who
demanded bribe was in fact competent to do that official favour for which he
demanded bribe. Suffice to establish that the public servant in abuse of his
official position, demanded bribe giver to pay him bribe to get the official
favour done. His competency to do the official favour by himself is not the
criterion. It was so held in Chaturdas Bhagwandas Patel's case (1 supra) wherein
the Honourable Apex Court held thus:
"The section does not require that the public servant must, in fact, be in a
position to do the official act, favour or service at the time of the demand or
receipt of the gratification. To constitute an offence under this section, it is
enough if the public servant, who accepts the gratification, takes it by
inducing a belief or by holding out that he would render assistance to the giver
"with any other public servant" and the giver gives the gratification under the
belief."
Therefore, the incompetency of an accused to do an official favour by himself
cannot be a sole ground to discard the prosecution case. However, it can be
considered as an additional ground when prosecution failed to prove
satisfactorily the ingredients of demand and acceptance. Added to it, in the
instant case it is not the version of PW1 that A.O demanded him bribe on the
representation that he himself would rectify the entries in the pahani register.
On the other hand, the allegation in Ex.P1-complaint is that A.O demanded him
Rs.500/- as bribe on the representation that if he pays the bribe he would get
the rectification of entries in pahani register through V.A.O and also recommend
to MRO. So, in Ex.P1 the complainant did not mention as if A.O promised to do
the work by himself. In his evidence also PW1 deposed in similar fashion and
stated that when he met A.O he stated that he would get his name (PW1's name)
recorded in the pahani and asked him to bring Rs.500/- for that purpose.
Therefore, it is not the case of the prosecution that A.O is competent to do
official favour by himself. Its case is that abusing his official position i.e.
his supervisory power over other staff, he induced PW1 to pay bribe to him to
get his work done. In the light of aforesaid facts and evidence, the first
contention of the appellant regarding his incapacity to do the official favour
cannot be countenanced.
11a) The next contention of the appellant is that he never demanded and
accepted bribe and bribe amount was stealthily implanted by PWs.1 and 2 in his
table drawer during his absence to implicate him in the case. Demand aspect is
concerned, the evidence of PW4 would show that on Ex.P4-application submitted by
PW1 for grant of D Form Patta in respect of land in Sy.No.263, she conducted an
enquiry on the instructions of MRO, as per which, PW1 was in possession and
enjoyment of land in Sy.No.263 in an extent of 2 acres. Accordingly, she
submitted a report under Ex.P3. Then the evidence of PW6-M.R.O. would show that
PW1 was assigned two acres of land in Sy.No.263 Kalsa Ibrahimpatnam as per
assigned file No.175/93 on 16-04-1993. Thus the cumulative effect of evidence of
PWs.4 and 6 is that PW1 was issued D Form patta in Sy.No.263 for an extent of 2
acres.
b) Then the further evidence of PW6 is that the names of PW1 and his father
were mentioned in pahani registers i.e. Exs.P10 and P11 (vide relevant entries
in Ex.P10 (a) and Ex.P11 (a)). However, pahani register for the year 1992-93 is
concerned, their names are not shown as occupiers in Ex.P12. Similarly in
Ex.P13-Faisal Patti for the year 1992-93, the patta certificate issued in favour
of PW1 was not implemented for Sy.No.263. Whereas the names of one Kamala Bai
and Narasimha Reddy in whose favour patta certificates issued were implemented
in other survey numbers. For rectification of such error only PW1 submitted
application under Ex.P2 to M.R.O. on 29-06-1994. According to him, earlier in
December, 1993 also he submitted a representation to the District Collector,
Ranga Reddy District and MRO, Ibrahimpatnam. Ex.P2 contains the endorsement of
AO. According to PW1, A.O demanded bribe to get rectification of pahani through
V.A.O and also by informing to MRO. The evidence of PW1 on the aspect of demand
on 29-06-01994 and again on the date of trap i.e. 05.07.1994 is clear and vivid.
His evidence regarding demand on 05.07.1994 is corroborated by the accompanying
witness-PW2, who accompanied him on the instructions of DSP, ACB. Regarding the
veracity of evidence of PWs.1 and 2, as rightly observed by the trial Court,
there is no necessity for them to implicate the A.O in a false case. PWs.1 and 2
were cross-examined at length but it must be said that A.O failed to elicit any
valid point showing their need for implicating him in a false case. So at the
outset, it must be said that evidence of PW1 is trustworthy throughout on the
aspect of demand of bribe by AO.
12 a) Sofaras the acceptance of bribe by A.O just before the trap is concerned,
again we have evidence of PWs.1 and 2. Both of them deposed that on 05-07-1994
on the instructions of DSP, ACB both of them went to the M.R.O. office and met
A.O in his room and PW1 paid the amount to A.O on further demand and A.O
received the amount with his right hand and kept in his table drawer.
Thereafter, PW2 went out and gave pre-arranged signal and trap party came and
caught A.O red-handed.
This is the crux of their evidence. Against their evidence one main
suggestion was given in cross-examination. It was suggested that both
PWs.1 and 2 stealthily went into the room of A.O in his absence and kept the
tainted amount and got him trapped. That is how the defence tried to prove that
bribe amount was implanted. The said suggestion was emphatically denied by PWs.1
and 2. Sofaras the chemical test on the right hand of A.O yielding positive
result is concerned, it was suggested to PW3-mediator and PW9-Inspector that the
DSP himself took out the tainted currency notes from the table drawer and handed
over to Subrahmanyam (LW4) and then caught hold the hands of A.O and then
conducted chemical test. By this suggestion, the defence sought to project that
because the DSP touched the tainted currency notes and then caught hold the
hands of AO, the phenolphthalein molecules were transferred from his hand to the
hands of A.O but not because the A.O accepted the tainted amount. This
suggestion was strongly denied by both the witnesses. Their version is that
immediately after rushing into the room of A.O on receiving signal, DSP
introduced himself to A.O and got prepared sodium carbonate solution in two jars
and conducted chemical test and thereafter enquired about the bribe amount and
then instructed LW4 to take out the amount from the table drawer. So, their
evidence is that DSP first conducted the chemical test and thereafter enquired
about the money and recovered the same from the table drawer and he did not
touch the hands of A.O by holding them. So, when the evidence relating to
acceptance of bribe is analysed, the deposition of PWs.1, 2, 3 and 8 withstood
the rigor of cross-examination and established that A.O very much accepted the
bribe amount from PW1 on further demand and himself kept the same in the table
drawer. Apart from their evidence, the defence theory of implanting of money
cannot be countenanced for different reasons.
b) Firstly, as argued by learned Spl.SC, PWs.1 and 2 are rustic villagers.
Hence, it is highly unbelievable that they could venture to implant the money in
the table drawer of AO.
c) Secondly, though PW.1 and PW.2 admitted that there were none others in the
first and second rooms, but they clearly stated that A.O was very much present
in his room. Therefore, the question of PWs.1 and 2 implanting the money does
not arise. In this context, Ex.D1-portion of PW2's 164 Cr.P.C. statement cannot
be understood as A.O was not present in his room when PWs.1 and 2 entered. What
PW2 stated in Ex.D1 is that when they entered inside, A.O was at another place
and on seeing them he came to his chair. So, from the mentioning that "on seeing
them" it can be understood that when they entered, A.O was very much present in
his room but not in his seat. That is why on seeing them he came to his seat.
So, from the moment they entered in his room they were in the gaze of AO. Hence,
the question of their implanting the bribe amount is not at all possible.
d) Thirdly, if the implant was true, there was no occasion for A.O to touch
the bribe amount and hence his hands will not yield positive result to the
chemical test, but his right hand yielded positive result. The defence plea that
DSP after entering his room himself opened the drawer and took the tainted
amount and handed over to LW4 and then caught hold the hands of A.O and
thereafter conducted chemical test and that is why the test yielded positive
result because the phenolphthalein molecules were transferred from the hands of
DSP to AO was denied by PWs.3 and 9 and their version is that chemical test was
first conducted and later the tainted amount was recovered and in the process,
the DSP did not hold the hands of AO. Therefore, the evidence of PWs.3 and 9
corroborates the evidence of PWs.1 and 2 to the effect that A.O upon demand and
acceptance of bribe amount himself kept the same inside the table drawer.
13) Therefore, on a conspectus of evidence on record, it is clear that the
prosecution by cogent evidence could establish that the A.O demanded and
accepted the bribe amount from PW1. Therefore, the statutory presumption under
Section 20 of P.C Act follows. The A.O failed to rebut the said presumption by
showing the preponderance of probabilities. As already observed, the defence
theory put-forth by A.O is unbelievable. Therefore, the A.O is guilty of the
charges under Sections 7 and 13(1) (d) r/w 13 (2) of PC Act. The trial Court
rightly convicted and sentenced him. I find no merits in the appeal.
14) In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court.
_______________________
U.DURGA PRSAD RAO, J
18-03-2014
Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988
(for short 'P.C. Act') and sentenced to undergo RI for a period of one year and
to pay a fine of Rs.1,000/- in default to undergo SI for a period of three
months on two counts. =
The defence plea that
DSP after entering his room himself opened the drawer and took the tainted
amount and handed over to LW4 and then caught hold the hands of A.O and
thereafter conducted chemical test and that is why the test yielded positive
result because the phenolphthalein molecules were transferred from the hands of
DSP to AO was denied by PWs.3 and 9 and their version is that chemical test was
first conducted and later the tainted amount was recovered and in the process,
the DSP did not hold the hands of AO. Therefore, the evidence of PWs.3 and 9
corroborates the evidence of PWs.1 and 2 to the effect that A.O upon demand and
acceptance of bribe amount himself kept the same inside the table drawer.
Therefore, on a conspectus of evidence on record, it is clear that the
prosecution by cogent evidence could establish that the A.O demanded and
accepted the bribe amount from PW1. Therefore, the statutory presumption under
Section 20 of P.C Act follows. The A.O failed to rebut the said presumption by
showing the preponderance of probabilities. As already observed, the defence
theory put-forth by A.O is unbelievable. Therefore, the A.O is guilty of the
charges under Sections 7 and 13(1) (d) r/w 13 (2) of PC Act. The trial Court
rightly convicted and sentenced him. I find no merits in the appeal.
14) In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court.
2014 (March. Part ) judis.nic.in/judis_andhra/filename=11032
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
CRIMINAL APPEAL No.1830 of 2005
18-03-2014
B.Vittalaiah..... Appellant/Accused
State of Andhra Pradesh Rep. by its Special P.P. for ACB,High Court of A.P,
Hyderabad.... Respondent
Counsel for Appellant: Sri A. Hari Prasad Reddy
Counsel for Respondent : Sri R. Ramachandra Reddy,
Special Standing Counsel for ACB
<Gist:
>Head Note:
?Cases referred:
1) AIR 1976 SC 1497
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.1830 of 2005
JUDGMENT:
This Criminal Appeal is directed against the judgment dated
24-11-2005 in C.C.No.17 of 1995 passed by the learned Additional Special Judge
for SPE & ACB cases, City Civil Court, Hyderabad whereby and whereunder the
Accused Officer (A.O) was convicted for the offences under Sections 7 and
13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988
(for short 'P.C. Act') and sentenced to undergo RI for a period of one year and
to pay a fine of Rs.1,000/- in default to undergo SI for a period of three
months on two counts.
2) The factual matrix of the case, which led to file the instant appeal, is
thus:
a) The A.O-Vittalaiah worked as Head Assistant in Mandal Revenue Office,
Ibrahimpatnam Mandal, Ranga Reddy District from 01-05-1993 to 05-07-1994.
b) PW1-Ravula Yellaiah is the resident of Rayapale village of Ibrahimpatnam
Mandal, Ranga Reddy District. He got Form 'D' certificate on 16-04-1993 in his
favour to an extent of Ac.2.00 covered by Sy.No.263 of Kalsa Ibrahimpatnam
Village, Ranga Reddy district. While so, his name was not shown as cultivator in
pahani for the year 1992-93. Therefore, he submitted a representation in the
month of December, 1993 to the District Collector, Ranga Reddy District and also
to the Mandal Revenue Officer (MRO), Ibrahimpatnam to enter his name in the
pahani. He also contacted the Village Administrative Officer (VAO), Kalsa
Ibrahimpatnam of Ranga Reddy district for rectification of error in the pahani,
but of no avail. Then PW1 contacted the A.O and explained his problem. Again in
the month of June, 1994 he met the AO with regard to rectification of error. At
that time A.O demanded Rs.500/- from PW1 as bribe to influence V.A.O and M.R.O
to get his name entered in the pahani for the year 1992-93. Again on
29-06-1994, PW1 met the A.O in his office and submitted a representation for
inclusion of his name in Jamabandi record in respect of Ac.2.00 of Kalsa
Ibrahimpatnam village. Then the A.O reiterated his earlier demand for which PW1
kept silent. On 01-07-1994 when PW1 contacted A.O with regard to his
representation, A.O reiterated his earlier demand of Rs.500/- as bribe and
directed PW1 to pay the same within four or five days. As PW1 was not willing
to pay the bribe amount, he approached Deputy Superintendent of Police (DSP),
ACB, Hyderabad Range, Hyderabad on 02-07-1994 and submitted Ex.P.1-complaint.
Basing on Ex.P.1-complaint, the DSP registered a case in Cr.No.6/ACB-HR/94 for
the offences under Sections 7 and 11 of PC Act against AO. On 05-07-1994 DSP
arranged for trap and the A.O was successfully trapped on the same day at 2:15
pm in his office and the test on right hand of the A.O yielded positive result.
The tainted amount of Rs.500/- (MO3) was recovered at the instance of A.O from
his table drawer. After obtaining sanction order, the Investigating Officer laid
the charge sheet.
c) On appearance of A.O, charges under Sections 7 and 13(1) (d) r/w 13(2) of
P.C. Act were framed. The A.O denied charges and claimed to be tried.
d) During trial, PWs.1 to 9 were examined and Exs.P1 to Ex.P20 and M.Os.1 to 8
were marked on behalf of prosecution. On behalf of AO, DWs.1 to 3 were examined
and Ex.D1 was marked.
e) A perusal of the judgment would show that the trial Court having relied upon
the evidence of PWs.1 to 9 held that the A.O demanded bribe for doing an
official favour i.e., for implementation of D Form Patta and inclusion of PW1's
name in Jamabandi record in respect of land Ac.2.00 of Kalsa Ibrahimpatnam
village. In this process, trial Court referred two main arguments advanced on
behalf of A.O i.e. (1) that no official favour was pending with A.O and that his
duty was only to maintain the attendance register and supervise the works of
other staff members and it was not his duty to effect rectification in pahani
register and (2) that the A.O never demanded and accepted the bribe and on the
other hand, PWs.1 and 2 stealthily entered to his room and implanted amount in
his drawer during his absence. The trial Court held that those arguments are
untenable and convicted and sentenced the A.O as stated supra.
Hence, the appeal.
3) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for
appellant/A.O and Sri R.Ramachandra Reddy, learned Special Standing Counsel for
ACB cases (for short "Spl.SC").
4 a) Criticizing the conviction and sentence passed by the trial Court learned
counsel for appellant firstly argued that no official favour was pending with
A.O to demand any bribe from PW1. Expatiating it, he submitted that A.O was only
Head Assistant in MRO's office, Ibrahimpatnam, whose duties were to maintain
attendance register and supervise the works of other staff members and it was
not his duty to either maintain the pahani register or make entries in it,
whereas the work of PW1 was that his name was missing in the concerned pahani
register for the year 1992-93 and his request was to rectify the said mistake
and enter his name in the concerned pahani register. Having regard to the
nature of duties of AO, it is highly improbable, nay impossible, for him to
demand bribe from PW1, since he was not competent to do the said work. It is the
V.A.O who has to enter such entries in the concerned pahani register. He thus
argued that at the very threshold, the prosecution case is quite unbelievable.
b) Secondly, learned counsel argued that A.O never demanded bribe from PW1
either prior to 29-06-1994 or subsequent thereto, much less on the date of trap
i.e. on 05-07-1994 and he never accepted any amount. On the other hand, PW1 on
the misconception that A.O was responsible for effecting entries in the pahani
register and he was not doing the same, implicated him in a false case by
implanting the tainted bribe amount in the office table drawer of A.O during his
absence. Learned counsel submitted that A.O could successfully probablise his
defence plea through two circumstances. Referring Ex.D1-portion of 164 Cr.P.C.
statement of PW2, learned counsel submitted that in Ex.D1 PW2 stated that by the
time PW1 and himself went to the room of AO, he was elsewhere and on seeing them
he came to his seat. Learned counsel argued that this part of the statement of
PW2 would indicate that by the time PWs.1 and 2 went into the room of A.O he was
not there which probablises the fact that they had an opportunity to
surreptitiously implant money in his table drawer. Then, learned counsel brought
another circumstance to the notice of this Court. By referring Ex.P8 (second
mediator's report), learned counsel submitted that spontaneous reply of A.O in
Ex.P8 was to the effect that he has not demanded or accepted any bribe amount
from the complainant (PW1). This would probablise his defence plea that amount
might have been implanted to implicate him in this case.
c) Thirdly, showing the reason for A.O's right hand yielding positive result
to chemical test, learned defence counsel argued that after the trap party
entered the room of A.O, the D.S.P picked up the tainted bribe amount from the
table drawer of A.O and handed over to LW4 and thereafter caught hold the hands
of A.O. In that process, the phenolphthalein molecules must have transferred to
the hand of A.O. He thus prayed to allow the appeal.
5 a) Per contra defending the judgment of the trial Court, learned Spl.SC
firstly argued that though A.O was not directly concerned to effect entries in
pahani books but still he being Head Assistant competent to influence V.A.O and
other concerned staff members in the office to make rectification in the pahani
registers and therefore, there is nothing unusual if he by abusing his official
position demanded bribe. He argued that to attract a charge under Section 7 of
P.C Act, the public servant who demanded bribe may not be competent to do the
official favour by himself but suffice if he demanded bribe from the complainant
to influence the concerned persons to do the work by misusing his official
position. On this point he relied upon the decision reported in Chaturdas
Bhagwandas Patel v. The State of Gujarat1. He submitted that there is ample
evidence that A.O demanded bribe from PW1 to get the rectification work done
through V.A.O and by influencing the MRO. Hence, he is liable for charge under
Section 7 of PC Act.
b) Secondly, opposing the implant theory learned Spl.SC argued that PWs.1 and
2 being Shepherds and rustic villagers, it is highly unbelievable that they
would enter the room of A.O during his absence and venture to implant the bribe
amount. Further, they have no proven animosity against A.O to implicate him in
a false case. Regarding the mentioning in Ex.D1, learned Spl.SC argued that the
statement of PW2 at best would show that when PWs.1 and 2 went to the office
room of A.O he was not sitting in his seat, but he was very much present in that
room only. That was why on seeing both of them (he emphasised the words "on
seeing us" in Telugu) he came to his seat to discuss with them. From Ex.D1-
statement of PW2, we cannot infer A.O was not at all present in his room when
PWs.1 and 2 entered his room. So, the question of PWs.1 and 2 implanting money
in his alleged absence does not arise. He argued that from this and the chemical
test of the right hand of A.O yielding positive result, it can safely be
concluded that A.O further demanded and accepted bribe amount from PW1 just
before trap and he himself kept the amount in his table drawer. Hence, he is
guilty of the offence. Thus, he prayed to dismiss the appeal.
6) In the light of above rival arguments, the point for determination in this
appeal is:
"Whether conviction and sentence passed by the trial Court against A.O are
factually and legally sustainable?"
7) POINT: The charges against A.O are under Sections 7 and 13(1)(d) r/w 13(2)
of PC Act on the accusation that the A.O demanded and accepted a sum of Rs.500/-
as gratification other than legal remuneration from PW1 as a motive for doing an
official favour i.e. for getting his name entered in the pahani register for the
year 1992-93 in view of D Form patta certificate issued by M.R.O. in favour of
PW1 assigning two acres of land in Sy.No.263 of Kalsa Ibrahimpatnam on 16-04-
1993. To sustain the above charges the prosecution is required to establish by
cogent evidence:
i) that the A.O during the relevant period is a public servant
ii) that the A.O accepted gratification other than legal remuneration of
Rs.500/- from PW1
iii) that the said gratification other than legal remuneration was accepted by
A.O to do an official favour i.e. to get the name of PW1 entered in the pahani
register for the year 1992-93 in an extent of 2 acres of land covered by
Sy.No.263 of Kalsa Ibrahimpatnam village.
If the prosecution is able to establish these facts, then the mandatory
presumption under Section 20 of PC Act shall follow. Hence, it has to be seen
whether the prosecution could establish its case beyond reasonable doubt as held
by the trial Court.
8) It is an admitted fact that A.O worked as Head Assistant in M.R.O. Office,
Ibrahimpatnam Mandal, Ranga Reddy District from 01-05-1993 to 05-07-1994 and
thus he was a public servant within the meaning of Section 2(c) of PC Act.
9) The case of PW1 is that himself and his father were in occupation of
2 acres of Government land in Sy.No.263 of Kalsa Ibrahimpatnam and Government
issued D Form patta in his favour on 16-04-1993 and their names were entered in
the cultivation columns of pahani registers except for the year 1992-93 and so
in December, 1993 he submitted a representation to the District Collector, Ranga
Reddy District and Mandal Revenue Officer, Ibrahimpatnam. His further case is
that in this regard the M.R.O. instructed his staff to look after the matter and
when he met A.O he replied that he would see the matter later and in June, 1994
when he met A.O he demanded bribe of Rs.500/- and told that if PW1 pay that
amount he would instruct V.A.O to enter his name in the pahani and he would also
recommend to MRO. Subsequently, on 29-06-1994 when PW1 met AO, he reiterated his
earlier demand. Similarly, when PW1 met A.O on 01-07-1994, he again reiterated
his demand and told that if he pay the amount within four or five days only his
work would be done. Unwilling to pay the bribe amount PW1 gave Ex.P1-report to
DSP, ACB who laid trap against AO.
Now, in the light of above facts, the contentions put-forth on behalf of
appellant/A.O have to be looked into.
10) The first contention raised by the learned counsel for appellant is that
there was no official favour pending with A.O to demand bribe.
He contended that A.O being Head Assistant was not competent to maintain the
pahani registers and make entries therein. His duty was to maintain attendance
register and supervise the work of other staff members. Therefore, practically
A.O had nothing to do with the rectification of entries in the concerned pahani
relating to PW1. As such it was not possible for him to demand bribe.
On appreciation of facts and evidence, it must be stated that this
argument is untenable. Regarding this contention, we will find in the evidence
of PW6-R.Linga Reddy the then M.R.O. Ibrahimpatnam that the duties of A.O are to
check up attendance register and also supervise the work and files maintained by
other staff. He stated that M.R.O. only issues patta and A.O is no way connected
with making entries in the register. In addition to this witness-DW1-the then
ASO, DW2-the then Senior Assistant and DW3-the then Village Assistant of M.R.O.
Office, Ibrahimpatnam also deposed in similar lines to the effect that duties of
A.O are to maintain the attendance register of employees, to supervise the
files, to receive the petitions in the absence of M.R.O. and to route the files
to M.R.O. for his approval. They stated that A.O will not be maintaining the
pahani registers and it is the duty of V.A.O to maintain those registers. In the
light of aforesaid evidence, it is contended on behalf of appellant/A.O that no
official favour was pending with him during the relevant period so that he could
demand any bribe. Though this argument apparently sounds correct, but not so in
reality. It must be noted that to sustain a charge under Section 7 of PC Act it
is not necessary for the prosecution to establish that a public servant who
demanded bribe was in fact competent to do that official favour for which he
demanded bribe. Suffice to establish that the public servant in abuse of his
official position, demanded bribe giver to pay him bribe to get the official
favour done. His competency to do the official favour by himself is not the
criterion. It was so held in Chaturdas Bhagwandas Patel's case (1 supra) wherein
the Honourable Apex Court held thus:
"The section does not require that the public servant must, in fact, be in a
position to do the official act, favour or service at the time of the demand or
receipt of the gratification. To constitute an offence under this section, it is
enough if the public servant, who accepts the gratification, takes it by
inducing a belief or by holding out that he would render assistance to the giver
"with any other public servant" and the giver gives the gratification under the
belief."
Therefore, the incompetency of an accused to do an official favour by himself
cannot be a sole ground to discard the prosecution case. However, it can be
considered as an additional ground when prosecution failed to prove
satisfactorily the ingredients of demand and acceptance. Added to it, in the
instant case it is not the version of PW1 that A.O demanded him bribe on the
representation that he himself would rectify the entries in the pahani register.
On the other hand, the allegation in Ex.P1-complaint is that A.O demanded him
Rs.500/- as bribe on the representation that if he pays the bribe he would get
the rectification of entries in pahani register through V.A.O and also recommend
to MRO. So, in Ex.P1 the complainant did not mention as if A.O promised to do
the work by himself. In his evidence also PW1 deposed in similar fashion and
stated that when he met A.O he stated that he would get his name (PW1's name)
recorded in the pahani and asked him to bring Rs.500/- for that purpose.
Therefore, it is not the case of the prosecution that A.O is competent to do
official favour by himself. Its case is that abusing his official position i.e.
his supervisory power over other staff, he induced PW1 to pay bribe to him to
get his work done. In the light of aforesaid facts and evidence, the first
contention of the appellant regarding his incapacity to do the official favour
cannot be countenanced.
11a) The next contention of the appellant is that he never demanded and
accepted bribe and bribe amount was stealthily implanted by PWs.1 and 2 in his
table drawer during his absence to implicate him in the case. Demand aspect is
concerned, the evidence of PW4 would show that on Ex.P4-application submitted by
PW1 for grant of D Form Patta in respect of land in Sy.No.263, she conducted an
enquiry on the instructions of MRO, as per which, PW1 was in possession and
enjoyment of land in Sy.No.263 in an extent of 2 acres. Accordingly, she
submitted a report under Ex.P3. Then the evidence of PW6-M.R.O. would show that
PW1 was assigned two acres of land in Sy.No.263 Kalsa Ibrahimpatnam as per
assigned file No.175/93 on 16-04-1993. Thus the cumulative effect of evidence of
PWs.4 and 6 is that PW1 was issued D Form patta in Sy.No.263 for an extent of 2
acres.
b) Then the further evidence of PW6 is that the names of PW1 and his father
were mentioned in pahani registers i.e. Exs.P10 and P11 (vide relevant entries
in Ex.P10 (a) and Ex.P11 (a)). However, pahani register for the year 1992-93 is
concerned, their names are not shown as occupiers in Ex.P12. Similarly in
Ex.P13-Faisal Patti for the year 1992-93, the patta certificate issued in favour
of PW1 was not implemented for Sy.No.263. Whereas the names of one Kamala Bai
and Narasimha Reddy in whose favour patta certificates issued were implemented
in other survey numbers. For rectification of such error only PW1 submitted
application under Ex.P2 to M.R.O. on 29-06-1994. According to him, earlier in
December, 1993 also he submitted a representation to the District Collector,
Ranga Reddy District and MRO, Ibrahimpatnam. Ex.P2 contains the endorsement of
AO. According to PW1, A.O demanded bribe to get rectification of pahani through
V.A.O and also by informing to MRO. The evidence of PW1 on the aspect of demand
on 29-06-01994 and again on the date of trap i.e. 05.07.1994 is clear and vivid.
His evidence regarding demand on 05.07.1994 is corroborated by the accompanying
witness-PW2, who accompanied him on the instructions of DSP, ACB. Regarding the
veracity of evidence of PWs.1 and 2, as rightly observed by the trial Court,
there is no necessity for them to implicate the A.O in a false case. PWs.1 and 2
were cross-examined at length but it must be said that A.O failed to elicit any
valid point showing their need for implicating him in a false case. So at the
outset, it must be said that evidence of PW1 is trustworthy throughout on the
aspect of demand of bribe by AO.
12 a) Sofaras the acceptance of bribe by A.O just before the trap is concerned,
again we have evidence of PWs.1 and 2. Both of them deposed that on 05-07-1994
on the instructions of DSP, ACB both of them went to the M.R.O. office and met
A.O in his room and PW1 paid the amount to A.O on further demand and A.O
received the amount with his right hand and kept in his table drawer.
Thereafter, PW2 went out and gave pre-arranged signal and trap party came and
caught A.O red-handed.
This is the crux of their evidence. Against their evidence one main
suggestion was given in cross-examination. It was suggested that both
PWs.1 and 2 stealthily went into the room of A.O in his absence and kept the
tainted amount and got him trapped. That is how the defence tried to prove that
bribe amount was implanted. The said suggestion was emphatically denied by PWs.1
and 2. Sofaras the chemical test on the right hand of A.O yielding positive
result is concerned, it was suggested to PW3-mediator and PW9-Inspector that the
DSP himself took out the tainted currency notes from the table drawer and handed
over to Subrahmanyam (LW4) and then caught hold the hands of A.O and then
conducted chemical test. By this suggestion, the defence sought to project that
because the DSP touched the tainted currency notes and then caught hold the
hands of AO, the phenolphthalein molecules were transferred from his hand to the
hands of A.O but not because the A.O accepted the tainted amount. This
suggestion was strongly denied by both the witnesses. Their version is that
immediately after rushing into the room of A.O on receiving signal, DSP
introduced himself to A.O and got prepared sodium carbonate solution in two jars
and conducted chemical test and thereafter enquired about the bribe amount and
then instructed LW4 to take out the amount from the table drawer. So, their
evidence is that DSP first conducted the chemical test and thereafter enquired
about the money and recovered the same from the table drawer and he did not
touch the hands of A.O by holding them. So, when the evidence relating to
acceptance of bribe is analysed, the deposition of PWs.1, 2, 3 and 8 withstood
the rigor of cross-examination and established that A.O very much accepted the
bribe amount from PW1 on further demand and himself kept the same in the table
drawer. Apart from their evidence, the defence theory of implanting of money
cannot be countenanced for different reasons.
b) Firstly, as argued by learned Spl.SC, PWs.1 and 2 are rustic villagers.
Hence, it is highly unbelievable that they could venture to implant the money in
the table drawer of AO.
c) Secondly, though PW.1 and PW.2 admitted that there were none others in the
first and second rooms, but they clearly stated that A.O was very much present
in his room. Therefore, the question of PWs.1 and 2 implanting the money does
not arise. In this context, Ex.D1-portion of PW2's 164 Cr.P.C. statement cannot
be understood as A.O was not present in his room when PWs.1 and 2 entered. What
PW2 stated in Ex.D1 is that when they entered inside, A.O was at another place
and on seeing them he came to his chair. So, from the mentioning that "on seeing
them" it can be understood that when they entered, A.O was very much present in
his room but not in his seat. That is why on seeing them he came to his seat.
So, from the moment they entered in his room they were in the gaze of AO. Hence,
the question of their implanting the bribe amount is not at all possible.
d) Thirdly, if the implant was true, there was no occasion for A.O to touch
the bribe amount and hence his hands will not yield positive result to the
chemical test, but his right hand yielded positive result. The defence plea that
DSP after entering his room himself opened the drawer and took the tainted
amount and handed over to LW4 and then caught hold the hands of A.O and
thereafter conducted chemical test and that is why the test yielded positive
result because the phenolphthalein molecules were transferred from the hands of
DSP to AO was denied by PWs.3 and 9 and their version is that chemical test was
first conducted and later the tainted amount was recovered and in the process,
the DSP did not hold the hands of AO. Therefore, the evidence of PWs.3 and 9
corroborates the evidence of PWs.1 and 2 to the effect that A.O upon demand and
acceptance of bribe amount himself kept the same inside the table drawer.
13) Therefore, on a conspectus of evidence on record, it is clear that the
prosecution by cogent evidence could establish that the A.O demanded and
accepted the bribe amount from PW1. Therefore, the statutory presumption under
Section 20 of P.C Act follows. The A.O failed to rebut the said presumption by
showing the preponderance of probabilities. As already observed, the defence
theory put-forth by A.O is unbelievable. Therefore, the A.O is guilty of the
charges under Sections 7 and 13(1) (d) r/w 13 (2) of PC Act. The trial Court
rightly convicted and sentenced him. I find no merits in the appeal.
14) In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court.
_______________________
U.DURGA PRSAD RAO, J
18-03-2014
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