Bugata Venkateswara Rao Vs the State of a.P., Rep. by Spl. P.P., Acb Cases

The sole accused officer is the appellant herein. He was tried for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short „the Act‟). By his Judgment, dated 26.02.2007, the learned Special Judge found the accused officer guilty of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act and, accordingly, convicted him of the said offences, and sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,500/- (Rupees two thousand five hundred only), in default to undergo simple imprisonment for a period of three (3) months for the offence under Section 7 of the Act. The accused officer was further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,500/- (Rupees two thousand five hundred only), in default to undergo simple imprisonment for a period of three (3) months for the offence punishable under Section 13(2) read with 13(1)(d) of the Act. Both the sentences of imprisonment were directed to run concurrently. MO.3 (cash of Rs.1,000/-) was ordered to be confiscated to the State and MOs.1, 2 and 4 to 7 were ordered to be destroyed after appeal time is over. The office was directed to make a complaint to the Metropolitan Magistrate or Magistrate of

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First Class, having jurisdiction against PW.4 for committing the offences under Sections 193 and 211 IPC by exercising powers under Section 340 read with 195(1)(b) of Cr.P.C.

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The sum and substance of the charges against the accused officer is that he, being a public servant, employed as Deputy Inspector of Survey, Office of the Revenue Divisional Officer, Eluru, West Godavari district, is alleged to have demanded a bribe amount of Rs.2,000/- from PW.4 on 13.07.2001 and thereafter reduced the said amount to Rs.1,000/- and accepted illegal gratification on 26.07.2001 for doing the official act of measurement of land of PW.4 and to fix boundaries, thereby committed the offence punishable under Section 7 of the Act. In the course of same transaction, on 26.07.2001, by corrupt or illegal means by abusing his position as public servant obtained for his pecuniary advantage to an extent of Rs.1,000/- from PW.4 as illegal gratification other than legal remuneration for doing the official act of measurement of his land and to fix boundaries, thereby the accused officer committed the offence under Section 13(1)(d) read with 13(2) of the Act.

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Brief facts of the prosecution case are as follows.

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i) The accused officer was working as a Deputy Inspector of Survey, office of the Revenue Divisional Officer, Eluru, West Godavari district, as on 26.07.2001, as such he is a public servant within the meaning of Section 2(c) of the Act.

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ii) The de facto complainant namely Bathula Venkateswara Rao (PW.4) is a resident of Pothunur village, Chintalapudi mandal, West Godavari district and eking out his livelihood by doing agriculture. PWs.4 and 2 paid an amount of Rs.200/- in Chintalapudi Sub-Treasury and applied for measurements and fixation of boundaries for their lands and submitted their applications to the accused officer on 27.04.2001. It is alleged that the accused officer was procrastinating the survey work of the disputed lands pertaining to PWs.4 and 2 saying that if he was bribed, then only he would fix up the boundaries for their lands and two others after measuring the lands. When the accused officer issued notices to PW.4 and concerned landlords, PW.4 approached the accused officer, but the accused officer did not turn up to attend the work, though he informed that he would come on 02.05.2001.

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iii) On 13.07.2001, when PW.4 approached the office of the accused officer, he informed PW.4 that he would come to the village on 28.07.2001 and instructed PW.4 to pay the demanded bribe amount of Rs.2,000/- before 28.07.2001 at his office. When PW.4 expressed his inability to pay the demanded bribe amount of Rs.2,000/-, it was reduced to Rs.1,000/-, and the accused officer demanded PW.4 to pay the reduced bribe amount of Rs.1,000/- before 28.07.2001 and if PW.4 fails to pay the said amount, he would not do the work of PW.4. As PW.4 was not willing to pay the said bribe amount, he approached PW.8 – the Deputy Superintendent of Police, ACB, Eluru and presented Ex.P8 report, which was registered as a case in Crime No.6/ACBRCT-EWG/2001 after observing necessary formalities.

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iv) On 26.07.2001, at about 05.20 pm, the accused officer was trapped by the ACB officials in his office when he further demanded and accepted the bribe amount of Rs.1,000/- from PW.4 as illegal gratification other than legal remuneration for doing official favour i.e., for measuring and fixing the boundaries of the disputed lands of PWs.4, 2 and others. When both the hand fingers of the accused officer and the inner linings of the table drawer in which the tainted amount was kept were subjected

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to chemical test, it proved positive. The trap laying officer seized the tainted amount along with connected records and examined the witnesses. After completion of investigation and on receipt of prosecution sanction proceedings dated 30.07.2002, charge sheet was filed against the accused officer for the aforesaid offences.

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On appearance of accused officer, copies of documents were furnished to him as required under Section 207 Cr.P.C. and, thereafter, charges under Sections 7 and 13(1)(d) read with 13(2) of the Act were framed against the accused officer and the contents of the charges were read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PWs.1 to 8 and got marked Exs.P1 to P22 and MOs 1 to 7.

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After closure of the prosecution evidence, accused officer was examined under Section 313 Cr.P.C., explaining the incriminating circumstances found against him in the evidence of prosecution witnesses, for which he denied.

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On behalf of the accused officer, DW.1 was examined and no documents were marked on his behalf.

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The learned Special Judge, on appreciation of entire oral and documentary evidence on record, found the accused officer guilty of the charges under Sections 7 and 13(1)(d) read with 13(2) of the Act and, accordingly, convicted and sentenced him as aforesaid. Against the said conviction and sentence, the present Criminal Appeal has been preferred.

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Sri P. Udaya Bhaskara Rao, learned Counsel appearing on behalf of the appellant/accused officer, submitted that the decoy witness, who was examined as PW.4, did not support the prosecution case and he was treated as hostile by the prosecution. He categorically submitted that when once the decoy witness (PW.4) turned hostile, the demand of bribe amount alleged to have been made by the accused officer cannot be held to be proved. In support of his contention that proof of demand of illegal gratification is gravamen of the aforesaid offences and in the absence thereof, mere acceptance of any amount or recovery would not be sufficient to bring home the charge under the aforesaid offences, he relied on a decision

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reported in P. Satyanarayana Murthy v. The District Inspector

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of Police¹ . He further submitted that except the evidence of PW.6, who is said to have accompanied PW.4, there is no other material to connect the accused officer to the aforesaid crime. He submits that in order to prove the alleged offences, it is essential that the evidence of accompanying witness has to be corroborated with other evidence, and in the absence of any corroboration, the offences alleged would not be made out against the accused officer. In support of his contention, he relied on a decision reported in Mukhtiar Singh (since deceased) through his LR v. State of Punjab² . He further submits that the learned Special Judge, without considering the said aspects in a right perspective, erred in convicting the accused officer, hence the conviction and sentence recorded against the accused officer are liable to be set aside.

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On the other hand, learned Additional Public Prosecutor, appearing on behalf of the respondent/State, submitted that though the decoy witness (PW.4) turned hostile, PW.6, who is accompanying witness, categorically stated with regard to demand and acceptance of bribe amount by the accused officer,

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1 2016(1) ACR 474 : 2015(2) ALD(Crl.)883 (SC)

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2 (2017) 8 SCC 136

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and in his cross-examination, nothing has been elicited from PW.6, so as to rebut the well reasoned judgment of the learned Special Judge. The judgment passed by the learned Special Judge is on correct lines and the same does not call for any interference by this Court.

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Heard. Perused the record.

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PW.1, who is the Deputy Surveyor in Chintalapudi MRO Office, did not support the prosecution case and he was treated as hostile by the prosecution. PW.2 is adjacent land owner of PW.4 and he is said to have applied for measurement and fixation of boundaries along with PW.4. He also did not support the prosecution case and he was treated hostile. PW.3, who is the Section Officer, Revenue Department, AP Secretariat, speaks about the process of issuance of prosecution sanction order Ex.P7 to prosecute the accused officer. PW.4, who is the decoy witness and who is said to have presented written report Ex.P8 alleging that the accused officer demanded bribe of Rs.2,000/- and on his request it was reduced to Rs.1,000/-, did not support the prosecution case and he was treated hostile by the prosecution. PW.5 is the Typist and she stated that she came to know that accused officer was trapped by ACB police.

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PW.6 is the Senior Assistant in the Office of the Deputy Commissioner of Labour, Eluru and he accompanied PW.4. He stated with regard to his participation in both pre-trap and posttrap proceedings Exs.P13 and P20. He further stated that he observed that on demand made by the accused officer, PW.4 paid the amount and it was accepted by the accused officer.

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PW.7 - the Range Inspector, ACB, Eluru, stated that on 25.07.2001, he received Ex.P8 from PW.8 and caused discrete enquiries about the antecedents of accused officer and PW.4 and made his endorsement on Ex.P8 and submitted his report. He further stated that he assisted PW.8 during the course of pretrap and post-trap proceedings Exs.P13 and P20. After completion of investigation and after receipt of prosecution sanction order Ex.P7, he filed charge sheet.

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PW.8 – the Deputy Superintendent of Police, ACB, Eluru and who is the trap laying officer stated that on receipt of Ex.P8 report from PW.4, he endorsed the same to PW.7 for causing discrete enquiries against PW.4 and the accused officer and after obtaining report from PW.7 he registered Ex.P8 report as a case in Crime No.6/ACB-RCT-EWG/2001 and issued Ex.P21

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FIR. He submitted copies of FIR to all concerned. He further stated that he conducted pre-trap and post-trap proceedings under Exs.P13 and P20 in the presence of mediators and seized the tainted amount and connected records.

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It is pertinent to mention here that PW.4 has not filed any application jointly along with PW.2. It was only on the application Ex.P4 filed by PW.2, the survey was conducted. In the absence of any application filed by PW.4 or any joint application as mentioned in Ex.P8, there was no need or possibility for the accused officer either to meet him or to demand any bribe amount from PW.4.

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DW.1, who is none other than the Surveyor, working in Chagallu Mandal during 2001, stated that his seat and the seats of PW.5 and the accused officer were in the same extension room in the office of the RDO and the accused officer attended the office on 26.07.2001 and he was in the Joint Collector‟s meeting since morning till 05.30 pm, and at about 05.00 pm, one person came and enquired about the accused officer and to whom he informed that the accused officer was in the Joint Collector‟s meeting and asked him to wait at his table and then he sat in the chair to the left side of the table of the accused

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officer and 15 minutes thereafter the accused officer came and after some time, the person who sat, left the office and thereupon ACB officials came.

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It is an admitted fact that the accused officer was working as Deputy Inspector of Survey in the office of the Revenue Divisional Officer, Eluru, West Godavari district as on 13.07.2001 and 26.07.2001 i.e. the dates of alleged demand and acceptance of bribe. In order to bring home the guilt of the accused officer for the charge under Section 7 of the Act, it is essential that the prosecution must prove that the accused officer accepted illegal gratification of Rs.1,000/- from PW.4 for himself and the same was not remuneration for which he was legally entitled.

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PW.4 is a decoy witness. According to him, he made applications twice, and on one occasion, the accused officer could not come to the site to fix the boundaries for the reason that there was heavy rain and because of the said reason he could not turn up. PW.4 further stated that twenty days thereafter, he received notice from the accused officer asking him to attend at the spot of survey to be conducted by him by fixing a date. PW.4 stated that he did not remember on which date he received the notice and on what date he has to attend for

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the survey work. On the said date, the accused officer did not turn up to the site. During the course of his evidence, when a question was posed to PW.4 by the Court as to “Have you given Ex.P8 report with false contents or with true contents?”, he categorically answered that the contents of his report are false, after taking reasonable time. In view of the aforesaid reasons, the prosecution treated PW.4 as hostile. By virtue of the answer given by PW.4 to the Court stating that the report Ex.P8 given by him is false, the said report Ex.P8 would not stand. When Ex.P8 report and the evidence given by PW.4 are not taken into consideration, the only evidence that remains for consideration is that of PW.6.

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PW.6 is the Senior Assistant in the office of the Deputy Commissioner of Labour, Eluru. He stated that on 26.07.2001 at about 12.00 Noon, the Deputy Commissioner of Labour instructed him and one KSV Subbarao (LW.6) to appear before PW.8 on the same day at about 02.00 pm. Accordingly, they attended before PW.8. PW.8 introduced PW.4 to them and viceversa. PW.8 gave copy of Ex.P8 to them and asked to go through the contents and to ascertain the genuineness of the contents thereof from PW.4. Accordingly, PW.4 confirmed the

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contents of his report are true and correct. PW.8 demonstrated the procedure contemplated under law and to follow pre-trap proceedings. After demonstrating the same, on the same day PWs.4, 6, 8 and his staff went in an Ambassador Car and reached the office of the accused officer, and as per the instructions of PW.8, the vehicle was stopped at a distance of 100 yards and they all got down. As per the instructions of PW.8, PWs.4 and 6 proceeded to the office of the accused officer. PW.4 went into the office room of the accused officer, while PW.6 was standing at the doorway. PW.6 noticed that three persons were attending to their duties in the room of the accused officer. Among them, one is accused officer and other persons are lady Typist and a gentleman. PW.6 stated that PW.4 approached directly to the seat of the accused officer and enquired him as to when he was going to visit the survey of land. On that, the accused officer enquired PW.4 whether he brought the demanded amount. Accordingly, PW.4 gave positive reply and gave the tainted amount to the accused officer, who counted the same with both his hands and kept in the left side table drawer. Thereafter, PW.4 came outside of the office and gave pre-arranged signal to the trap party. On that, PW.8 and his staff

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went into the office of the accused officer and conducted posttrap proceedings Ex.P20.

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A perusal of the entire material on record goes to show that it is only the evidence of PW.6, which implicates the accused officer in the aforesaid case. PW.6 is not the witness for the earlier demand that has been made by the accused officer. In order to attract the aforesaid offences, it is essential that all the essential ingredients of aforesaid offences have to be made out. It is just and necessary that earlier demand which has been made by the accused officer has to be proved, so as to lead the informant i.e. PW.4, to lodge a complaint before PW.8. In the absence of any material to prove the earlier demand, the entire trap and Ex.P8 has to be eschewed. Earlier demand would also be integrated part of subsequent demand and acceptance. It is essential that integrated earlier demand has to be proved by the prosecution. In the present case, except the evidence of PW.6, there is no other evidence to corroborate the version given by PW.6.

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20. In P. Satyanarayana Murthy’s case (supra), the Hon‟ble

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Supreme Court observed as follows.

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“21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

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As a corollary, 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.

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The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1

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S.Udaya Bhaskar.

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The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs.500/- from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to corelate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap

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operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1- S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act against the appellant has been proved beyond reasonable doubt.”

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A perusal of the aforesaid decision goes to show that in the absence of proof of demand, the aforesaid offences would not be made out.

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In Mukhtiar Singh’s case (supra), the Hon‟ble Supreme Court held as follows.

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“24. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification

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either of Rs.3,000/- which had been paid or ofRs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and A payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.

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ln addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses, PW-!, PW-2 and PW-5 with regard to the location of the

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transaction relating to Rs.2,000/- also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. Though the original accused, apart from imputing his false implication at the instance of Superintendent of Police Cheena, said to be the relative of the complainant could not adduce any evidence to consolidate the same, the fact remains that this officer at the relevant point of time was indeed Superintendent of Police at Mohali and was the superior of PW5 who led the trap operation.”

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In reiteration of the golden principle which runs through the

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web of administration of justice in criminal cases, taking the evidence of PW.6 would throw some suspicion as to how the alleged incident is said to have taken place. However strong the suspicion may be, it cannot take the place of proof. Since the decoy witness did not support the prosecution case and he was treated as hostile by the prosecution, the evidence of PW.6, who is a shadow witness to PW.4, cannot be unilaterally accepted without there being any corroboration to the said witness. Admittedly, the accompanying witness would run on par with the investigating officer and his interest would be on par with PW.8.

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In view of the said reasons and the touch stone of the legal principles adumbrated herein above, no matter as to how the prosecution in the instant case has failed to prove unequivocally the demand of bribe on earlier point of time, and subsequently, since the decoy witness turned hostile, this Court has no option except to hold that it can be wholly unsafe to sustain the conviction on the accused officer.

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In view of the aforesaid facts and circumstances of the case and the principle laid down by the Hon‟ble Apex Court in the above referred decisions, this Court has no hesitation to come to the conclusion that the prosecution failed to bring home the guilt of the accused officer of the alleged charges beyond reasonable doubt and the accused officer, therefore, deserves to be acquitted of the charges.

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Accordingly, the Criminal Appeal is allowed and the conviction and sentence passed by the learned Special Judge for SPE and ACB Cases, Vijayawada, in the judgment in CC No.18 of 2002, dated 20.02.2007 are set aside. The appellant/accused

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officer is found not guilty of the charges leveled against him and accordingly he is acquitted of the same, and he is set at liberty.

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The bail bonds, if any, shall stand discharged. Fine amount, if any, paid by the appellant shall be refunded to him.

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As a sequel thereto, the miscellaneous petitions, if any,

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pending in this Criminal Appeal, shall stand closed.