Sri Konki Jaya Prakasha Rao, Visakhapatnam. Vs the State of a.P., Rep. by Spl.P.P.,Acb, Hyderabad.

SRI KONKI JAYA PRAKASHA RAO, VISAKHAPATNAM., S/O. KRISHNA MURTHY TRANSPORT OFFICER GIRIJAN CO-OPERATIVE CORPORATION LIMITED, VISAKHAPATNAM, ON DEPUTATION FROM APSRTC., R/O. D.NO. 27-112, R.T.C. COLONY,

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...APELLANT

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AND

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THE STATE OF A P REP BY SPL P P ACB HYDERABAD, Rep. by Spl. Public Prosecutor High Court, Hyderabad, Rep. by Inspector of Police, ACB., Visakhapatnam Range,

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...RESPODENT

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Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to present this Memorandum of Grounds of Criminal Appeal to this Hon'ble Court against the Judgment of the Special Judge for ACB Cases, Visakhapatnam, in C.C. No. 4 of 2006, dated 29th day of January, 2010.

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IA NO: 1 OF 2010(CRLAMP 381 OF 2010

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence passed by the Special Judge for ACB Cases, Visakhapatnam, in C.C. No. 4 of 2006, dated 29th day of January, 2010, and release the petitioner on bail, pending disposal of the Criminal Appeal before this Hon'ble Court.

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Counsel for the Apellant:

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1.K A NARASIMHAM

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Counsel for the Respodent:

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1.S.SYAM SUNDER RAO SC cum Spl P.P. For ACB

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The Court made the following:

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THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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CRIMINAL APPEAL NO.222 of 2010

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JUDGMENT:

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Heard Sri K.A.Narasimham, learned counsel for the appellant, and Sri S. Syam Sunder Rao, learned Standing Counsel–cum–Special Public Prosecutor for ACB appearing for the respondent–State.

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The present appeal is preferred challenging the judgment dated 29.01.2010 in C.C. No.4 of 2006 on the file of the learned Special Judge for ACB Cases, Visakhapatnam. By the said judgment, the appellant was convicted for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only), in default to suffer simple imprisonment for a period of four (4) months. However, the appellant found not guilty for the offence under Section 7 of the Act.Accordingly, acquitted under Section 248(1) of the Code of Criminal Procedure, 1973.

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CASE OF THE PROSECUTION:

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The case of the prosecution, in brief, is that the appellant was working as Transport Officer in Girijan Cooperative Corporation Limited (GCC), Visakhapatnam, on deputation from APSRTC.

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P.W.1 is an auto mechanic and the proprietor of M/s. K. Veena Naidu and Sons at Anakapalle.He was also a panel mechanic for the vehicles of GCC at Paderu Division.

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In the month of July, 2004, a minivan bearing Registration No. AP 31 U 2461 belonging to GCC, Chintapalli, was brought to the workshop of P.W.1 for repairs. P.W.1 estimated the repair cost at Rs.76,055/- and the estimate was handed over to the Senior Manager, GCC, Chintapalli, in turn forwarded the same to the Transport Officer, GCC, Visakhapatnam.

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In September, 2004, the accused telephoned the workshop of P.W.1 and requested him to collect the work order. Accordingly, P.W.1 went to the office of the accused in the first week of September2004.The accused handed over the work order to P.W.1 and demanded that P.W.1 pay 10% of the bill amount as gratification other than legal remuneration. P.W.1 expressed his inability to meet the said demand.Thereafter, P.W.1 carried out the repairs of the van and

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submitted the bill in the second week of January, 2005 and received the payment.

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In the month of September, 2004, P.W.1 also received a mini truck belonging to the Pedabayalu Branch of GCC for repairs. P.W.1 issued an estimate for Rs.44,000/- in September 2004. The accused asked P.W.1 to come to his office. Accordingly, P.W.1 visited the office of the accused.

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The accused again demanded that P.W.1 pay 10% of the bill amount as gratification, other than legal remuneration. P.W.1 expressed his inability to meet the demand. The accused informed P.W.1 that no work order would be issued until the demand was satisfied.

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On 29.01.2005, the accused again called P.W.1 to his house. P.W.1 visited the house of the accused on the next day evening. The accused reiterated the demand. P.W.1 requested the accused to reduce the amount demanded. The accused then demanded that P.W.1 pay Rs.3,000/- initially and asked him to pay the said amount on 31.01.2005 at about 5:00 PM near Maddilapalem Bus Depot.

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P.W.1 approached the ACB officials on 30.01.2005 and presented a report. A case was registered and the ACB officials took up investigation.

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On 31.01.2005, pre-trap proceedings were conducted in the presence of mediators. In accordance with the pre-trap proceedings, on the same day P.W.1 went to Maddilapalem Bus Depot and informed the accused over phone that he was waiting there. The accused asked him to wait.

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At about 5:30 PM, the accused called P.W.1 and asked him to come to Highway Parlouropposite to Engineering College Arch. P.W.1 along with the trap party proceeded to the said place. The accused present there and reiterated the demand.Thereafter, P.W.1 and the accused went inside the parlour. The accused asked P.W.1 to give the money. P.W.1 paid the amount. The accused received the amount with his right hand and kept it in the pocket of his trousers.

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Subsequently, P.W.1 gave the pre-arranged signal. The trap party rushed to the spot.The Deputy Superintendent of Police, ACB conducted the phenolphthalein test on the fingers of both hands of the accused and the result was positive. The tainted amount was recovered and seized. The accused was arrested in the presence of mediators and post-trap proceedings were conducted.

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After completion of investigation, necessary sanction was obtained to prosecute the accused. Thereafter, the Investigating Officer filed the charge sheet before the learned Special Court.

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The accused was charged for the offences under Sections 7 and 13(2) of

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the Act.

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EVIDENCE FOR THE PROSECUTION:

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In order to prove the charges, the prosecution examined P.Ws.1 to 5 and marked Exs.P1 to P12. M.Os.1 to 8 were also marked on behalf of the prosecution.

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The accused was examined under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against him in the prosecution evidence. The accused denied the case of the prosecution as false.

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The accused examined D.Ws.1 and 2 on his behalf and marked Ex.D1.

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FINDINGS OF THE TRIAL COURT:

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The learned Special Judge, on appreciation of the above evidence, found the accused guilty of the offence under Section 13(2) read with Section 13(1)(d) of the Act and convicted and sentenced him as stated above. However, the learned Special Judge found the accused not guilty of the offence under Section 7 of the Act and accordingly acquitted him of the said charge.

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Aggrieved by the conviction and sentence, the present appeal is filed by the accused.

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SUBMISSIONS ON BEHALF OF THE APPELLANT:

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Learned counsel for the appellant submits that the learned Special Court categorically found that the prosecution failed to prove the demand as alleged in the case and consequently acquitted the appellant for the offence under Section

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7 of the Act. The State did not prefer any appeal challenging the order of acquittal recorded by the learned Special Court. Therefore, the order of acquittal attained finality.

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The learned counsel for the appellant further submits that the learned Special Court committed a grave error in law, holding that under Section 13(1)(d) of the Act, proof of demand is not necessary, and that recovery of the amount and abuse of official position is sufficient. With that assumption, the learned Special Court concluded that the prosecution proved the offence under Section 13(2) of the Act

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Therefore, proof of demand of gratification other than legal remuneration,

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as alleged by the prosecution, is sine qua non to prove the offence under

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Section 13(2) of the Act as well. Mere recovery of the amount would not be sufficient to prove the offence under Section 13(2) of the Act.

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The learned counsel for the appellant, in support of his arguments, relied on the judgment of the Hon’ble Supreme Court in P. Satyanarayana Murthy v. State of Andhra Pradesh¹ . The Hon’ble Apex Court, while considering the principle of law under Sections 7 and 13(1)(d)(i) and (ii) of the Act, at paragraphs 25 and 26, held as under:

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“25. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus,had been to underscore the indispensability of the proof of demand of illegal gratification.

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26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406, (2014) 1 SCC (Cri) 677, held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it to the domain of “must be” true

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1 (2015) SCC 10 152

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in order to steer clear of any possible surmise or conjecture. It was held that the court must ensure that miscarriage of justice is avoided and that if, in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.”

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The learned counsel for the appellant submits that the Hon’ble Apex Court considered the necessity of proving the ingredient of demand for the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and held that proof of demand of illegal gratification is indispensable.

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Admittedly, the prosecution did not prove the ingredient of demand in the present case.Therefore, the finding of the learned Special Court that proof of demand is not required or necessary and that mere recovery is sufficient to prove the offence under Section 13(2) of the Act is not sustainable in law.

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Therefore, the learned Special Court committed an error in law. Hence, the conviction recorded by the learned Special Court for the offence under Section 13(2) of the Act is liable to be set aside as the prosecution failed to prove the demand in the case.

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The question of evidence with regard to demand, whether it is proved or not proved, cannot be gone into once again in this appeal, as no appeal was

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been filed by the State challenging the judgment of the learned Special Court

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insofar as the order of acquittal for the offence under Section 7 of the Act.

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SUBMISSIONS ON BEHALF OF THE RESPONDENT / STATE:

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The learned Special Public Prosecutor for ACB submits that the State did not file any appeal challenging the order of acquittal under Section 7 of the Act. However, he contends that the finding recorded by the learned Special Court regarding the offence under Section 13(2) of the Act does not require interference in view of the facts and circumstances of the case.

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POINT FOR CONSIDERATION:

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In the light of the above rival submissions, the following point arises for consideration in this Criminal Appeal:

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“Whether the judgment of the learned Special Court warrants interference?”

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POINT:

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The facts of the case were already stated supra. Therefore, there is no necessity to restate the same. The case involves onlythe question of law. There is no dispute with regard to the fact that the learned Special Court acquitted the

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appellant for the offence under Section 7 of the Act on the ground that the prosecution failed to prove the ingredient of demand.

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It is an admitted fact that the case of the prosecution is obtainment of illegal gratification by the appellant. In the light of the Constitution Bench judgment of the Hon’ble Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi) in Criminal Appeal No.1669 of 2009, the prosecution has to prove both the demand and the receipt of illegal gratification in order to establish the obtainment of illegal gratification. Proof of both these ingredients is sine qua non to establish the obtainment as alleged by the prosecution.

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ANALYSIS :

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In the case on hand, it is the case of the prosecution that the appellant made a demand for illegal gratification and received the same. Therefore, the prosecution has to prove both the ingredients, namely the demand and the receipt of illegal gratification. However, the prosecution failed to prove both the said ingredients. The learned Special Court, basing on the evidence on record, recorded a finding that the prosecution failed to prove the ingredient of demand. Consequently, the learned Special Court found the appellant not guilty of the offence under Section 7 of the Act.

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Section 13(1)(d)(i) of the Act, which was in force at the time of the commission of the offence in the present case, provides that a public servant commits the offence of criminal misconduct if he, by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage. In the present case, the case of the prosecution is that the appellant made a demand for illegal gratification and received the same.Therefore, the case of the prosecution falls within the purview of obtainment as contemplated under the said provision.

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The Hon’ble Supreme Court in P. Satyanarayana Murthy case , referred to supra, had occasion to consider the requirement of proving demand in order to establish the offences under Sections 7 and 13(1)(d)(i) and (ii) of the Act. The Hon’ble Supreme Court held that proof of demand of illegal gratification is indispensable for establishing the offences under Sections 7 and 13(1)(d)(i) and (ii) of the Act and to hold that the accused has committed the said offences.

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In the case on hand, the learned Special Court found that the prosecution failed to prove the demand and consequently acquitted the appellant for the offence under Section 7 of the Prevention of Corruption Act. At the cost of repetition, it must be stated that no appeal was filed by the State challenging the said order of acquittal. Therefore, the said finding has attained finality.

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In that view of the matter, and in the light of the judgment of the Hon’ble Supreme Court referred to above, when proof of demand is an indispensable requirement even for establishing the offence under Section 13(2) of the Prevention of Corruption Act, the conviction recorded by the trial Court on the ground that proof of demand is not necessary is not sustainable in law. The conviction recorded by the trial Court on the basis of such a finding is also not sustainable in law.It is liable to be set aside.

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CONCLUSION:

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In view of the foregoing discussion this Court is of the considered opinion that the conviction recorded by the learned Special Judge for the offence under Section 13(2) of the Prevention of Corruption Act, 1988 is not sustainable in law.

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RESULT:

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Accordingly, the Criminal Appeal is allowed.

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The judgment of conviction dated 29.01.2010 in C.C. No.4 of 2006 on the file of the learned Special Judge for ACB Cases, Visakhapatnam, is set aside. Accordingly, the appellant/accused acquitted for the offence U/secs.7 and 13(2) of the P.C.Act, 1988.

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