Sri a.Obulapathi, Vs State Rep by Spl. Pp.

Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to present the Memorandum of Grounds of Criminal Appeal in Hon'ble Court against the Judgment of the Addl. Spl. Judge for SPE and ACB Cases, City Civil Court , Hyderabad in CC.No.4 of 2002 dated 18.12.2006

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IA NO: 1 OF 2007(CRLAMP 70 OF 2007

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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 the sentence passed by the Addl. Spl. Judge for SPE and ACB Cases, City Civil Court, Hyderabad in CC.No.4 of 2002, dated 18.12.2006

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Counsel for the Appellant:

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1.A HARIPRASAD REDDY

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Counsel for the Respondent:

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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.52 OF 2007

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J U D G M E N T:

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Heard Sri A.Hariprasad Reddy, learned counsel for the appellant and Sri S.Syam Sunder Rao, learned Standing Counselcum-Special Public Prosecutor for ACB.

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The appeal is preferred challenging the Judgment dated 18.12.2006 delivered in C.C.No.04 of 2002 on the file of the Additional Special Judge for SPE & ACB Cases, City Civil Courts at Hyderabad.

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The appellant was found guilty of the offence under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (in short ‘the P.C. Act’). He was convicted and sentenced to suffer rigorous imprisonment for a period of two (02) years and to pay a fine of Rs.2,000/- (Rupees Two Thousand Only), in default to undergo simple imprisonment for a period of six (06) months for the offence under Section 7 of the P.C. Act, 1988. He was also convicted and sentenced to suffer rigorous imprisonment for a period of two (02) years and to pay a fine of Rs.2,000/- (Rupees Two Thousand Only), in default to undergo simple imprisonment

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for a period of six (06) months for the offence under Section 13(1)(d) read with 13(2) of the P.C. Act, 1988.

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For the sake of convenience, the parties hereinafter referred to as they were arraigned before the learned Special Court.

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CASE OF THE PROSECUTION:

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The case of the prosecution is that the appellant/accused was working as Village Administrate Officer, Chagaleru Village, Chilamathur Mandal, Ananthapur District, at the relevant point in time. The Government announced compensation for crop damage. The appellant visited the lands of PW-1, noticed the crop damage. The appellant has to hand-over the cheques to the landowners, whose crops damaged. PW-1 went to Bangalore, stayed at Bangalore for a week. Later, returned to the village. He went to the appellant with a request to give the cheques. The appellant postponed it on one pretext or the other. Finally, on 10.06.2000 PW-1 visited the house of the appellant in Kodikonta Village, requested the appellant to give the cheques. The appellant demanded a sum of Rs.5,000/- (Rupees Five Thousand Only) as gratification other than legal remuneration to give the cheques. PW-1 made bargain with the appellant. Amount was reduced to

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Rs.4,500/- (Rupees Four Thousand Five Hundred Only). PW-1 requested the appellant to give one cheque at least, he will encash and pay the amount to the appellant. The appellant handed over one cheque standing in the name of Smt.Varalakshmi, daughter of PW-1. The appellant instructed PW-1 to withdraw the amount and meet him on 22.06.2000 to receive the other cheques. PW-1 is not willing to pay the amount as demanded by the appellant. Therefore, he approached PW-8, Deputy Superintendent of Police, ACB, Ananthapur, on 21.06.2000 PW-1 presented Ex.P1 complaint to PW-8. It was registered as Ex.P12-FIR.

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PW-8 took up investigation, conducted pre-trap proceedings

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in the presence of mediators under the cover of Ex.P5, pre-trap proceedings. PW-8 instructed PW-1 to go to the house of the appellant/convict and to pay the amount, if the appellant makes demand to issue the cheques. Accordingly, on 22.06.2000 at about 10:00 AM, PW-1 visited the house of the appellant/convict, found the appellant in the first room of the house. He requested the appellant to give the cheques. The appellant made demand for the gratification amount, other than legal remuneration to deliver the cheques. Therefore, PW-1 gave the tainted currency to the appellant. He received it, counted the currency notes and kept the

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money in his shirt pocket. Then, delivered two cheques to PW-1, which are standing in the name of the son of PW-1. He obtained signature of PW-1 in the Register. PW-1 asked the appellant about cheques standing in the name of PW-1’s wife. The appellant informed PW-1 that name was wrongly mentioned on the cheque. Hence, it will be delivered after correcting the name. PW-1 asked the appellant about the cheque standing in the name of PW-1. The appellant said that it cannot be delivered, as it was cancelled since PW-1 has dues under loan account of the society. Thereafter, PW-1 came out of the house. He gave signal to the trap party. Immediately, the mediators, police constables and PW-8 entered into the house of the appellant. PW-8 conducted post-trap proceedings in the presence of mediators under the cover of Ex.P9, seized the tainted money i.e., MO-5 from the shirt pocket of the appellant. PW-8 got conducted chemical test to the hands of the appellant. Chemical test gave positive result. Later, PW-8 examined the complainant and other witnesses collected documents vide Exs.P2 to P7 and P10 during the investigation. Concerned authorities issued Ex.P11 proceedings accorded sanction for prosecution of the appellant. Therefore, PW-7 laid

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charge sheet after conclusion of the investigation before the Special Court.

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The appellant was charged for the offence under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act, 1988. The appellant pleaded not guilty and claims to be tried.

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EVIDENCE FOR THE PROSECUTION :

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The prosecution in order to prove the charge, examined witnesses i.e., PWs-1 to 10 respectively and filed Exs.P1 to P13 documents apart from MOs-1 to 8.

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The appellant was examined under Section 313 Cr.P.C. regarding incriminating circumstances appearing against him from the evidence for the prosecution. The appellant denied those circumstances as not true and not correct. D.Ws-1 to 4 were examined for defence. Exs.D1 and D2 were marked for defence. Exs.X1 and X2 were also marked during the trial of the case, apart from above witnesses and documents.

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FINDING OF THE TRIAL COURT :

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Basing on the above evidence, the Special Court found the appellant guilty of the charges mentioned above. Accordingly, convicted and sentenced him mentioned above. Hence, the appeal

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came to be preferred by the appellant/accused challenging the judgment of the Special Court.

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SUBMISSIONS ON BEHALF OF THE APPELLANT/ACCUSED :

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Sri A.Hariprasad Reddy, learned counsel for the appellant/convict would vehemently argue that it is the specific case of the prosecution that the accused demanded the gratification amount and received the same from PW-1. Therefore, it is a case of obtainment as laid down under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act, 1988. Hence, the prosecution must prove two ingredients. One is demand and another is receipt of the amount. Both ingredients are sine qua non to prove the offence under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act, 1988 in the light of Judgment of Hon’ble Apex Court in the case of Neeraj Dutta V. State (Govt. of NCT of Delhi)¹

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The evidence on record would not lead the Court anywhere near to say that prosecution proved the offence. But the learned trial Court erroneously came to a finding that prosecution proved the offence. The finding of the trial Court is perverse because it is not based on evidence and it is not in accordance with law. Therefore, it let to travesty of justice.

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1 (2022) SCC OnLine SC 1724

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He would further submit that in the light of Judgment of Hon’ble Apex Court in the case of Dudh Nath Pandey V. State of U.P.² , the evidence of defence witnesses would probable that PW-1 kept the money on the table in the house of the appellant. Then the appellant throws it away from the table. Then PW-1 picked up the same and forcibly thrusted into the shirt pocket of the appellant. Therefore, the evidence of defence witnesses would show that no demand was made by the appellant, nor he received the MO-8 amount in consequence of the demand made by him. But, the trial Court did not consider the above facts in proper perspective and therefore came to an erroneous conclusion and found the accused guilty, which is not sustainable either on facts or in law.

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SUBMISSIONS ON BEHALF OF THE RESPONDENT/ACB :

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Learned Standing Counsel-cum-Special Public Prosecutor for ACB, Sri S. Syamsunder Rao would argue that there are no grounds to interfere with the judgment of the trial Court. He would submit that the evidence of PW-1, mediators corroborate by PW-8 would establish the demand as well as receiving the gratification

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2 AIR 1981 SC 911

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amount other than legal remuneration by the appellant on 22.06.2000 during trap proceedings beyond all reasonable doubt. 15. He would further submit that the trial Court rightly observed that the evidence of DWs-1 to 4 is not reliable as they were planted witnesses by the defence to create evidence, the names were not disclosed earlier. Therefore, no credibility can be attached to the testimony of DWs-1 to 4.

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In those circumstances, the evidence of PWs-1, 2 and trap laying officer beyond all reasonable doubt would establish demand as well as receiving the amount by the appellant. Hence, the learned Special Court rightly found the appellant guilty of the offence under Section 7 and Section 13(1)(d) r/w 13(2) of the P.C. Act, 1988.

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In the light of above rival submissions, the point that would arise for consideration in this Criminal Appeal is as under:

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“Whether there are grounds to interfere with the judgment of the trial Court”?

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ANALYSIS:

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The case of the prosecution is very specific i.e., Government declared compensation for loss of crops at the relevant point in time; PW-1 and his family members or some of the beneficiaries

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under the scheme for compensation for loss of crops. PW-1 approached the appellant who was working as Village Administrative Officer at that time for release of the cheques; The appellant made a demand for gratification amount other than legal remuneration to release the cheques.

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The evidence of MRO, PW-6 would show that the cheques issued in favour of PW-1 and his wife vide Exs.P3 and P4 were cancelled as loan is pending. The evidence of Deputy Mandal Revenue Officer at the relevant point in time, PW-3 would disclose that the Government declared compensation for damage to the crops. Accordingly, Village Administrative Officers prepared information about the crop damage and submitted to the Mandal Revenue Officer. Here it is pertinent to note down that it is not the case of the prosecution that the appellant demanded PW-1 to pay the bribe amount for including his name in the list of beneficiaries.

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The evidence of PW-3 would establish that the appellant prepared list of beneficiaries and submitted to the list to the Mandal Revenue Officer, Chilamathuru Mandal and the Mandal Revenue Officer issued proceedings dated 19.04.2000, approving the list prepared by the Village Administrative Officer. The evidence of PW-3 would also establish that the Mandal Revenue Officer shall

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issue cheques to beneficiaries. The Village Administrative officer has no role in issuing the cheques.

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The evidence also would establish that the Mandal Revenue Officer visit the village of PW-1 on 21.06.2000 to deliver the cheques as per the programme. He could not visit the village day due to some other official work. The evidence of PW-4 would show that on 21.06.2000 at about 11:30 AM., a message was received from Collector Office asking PW-4 to visit Collector Office at Ananthapuram. Therefore, PW-4 on that day at about 3:00 PM., handed over the cheques along with acquaintance register, to the appellant, to distribute the cheques to the beneficiaries.

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Hence, evidence on record would show that the appellant does not have any information till 3:00 PM., on 21.06.2000, that cheques will be handed over to him for distribution to the beneficiaries including PW-1. In those circumstances, the case of the prosecution that the appellant made a demand on 10.06.2000 for gratification other than legal remuneration to deliver the cheques on 22-06-2000 cannot be believed.

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The evidence on record mentioned above would show that cheques were handed over to the appellant at 3:00 PM., only on 21.06.2000. The evidence on record would also disclose that the

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cheques issued in the name of PW-1 and his wife were cancelled as they are having loan payable to the society. It is pertinent to note down that PW-1 presented report to PW-8 on the evening of 21.06.2000. It shows that something had happened between the appellant and PW-1, after 3:00 PM., and before PW-1 presented report to PW-8. It should be about cancellations of the cheques in the name of PW-1 and his wife. It probable the defence plea that PW-1 suspected the role of the appellant in cancelling the cheques issued in the name of PW-1 and his wife, and therefore, to trouble the appellant, he presented Ex.P1 into service.

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When coming to incident on 22.06.2000, the case of the prosecution is that PW-1 visited the house of appellant at about 10:00 AM, went into the house, noticed the appellant sitting in a chair, requested PW-1 to give the cheques; The appellant made demand for bribe amount; Then PW-1 paid MO-8 amount. The appellant received it, counted the currency notes and kept in the shirt pocket; Later, the appellant delivered cheques standing in the name of the sons of the PW-1; Then, PW-1 asked the appellant about cheques in his name and his wife; The appellant disclosed that they were cancelled as they are having outstanding loan amount.

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Later, he came out and gave the signal to PW-8 and his team members; Therefore, they entered into the house of the appellant conducted post-trap proceedings under the cover of mediator’s report.

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The defence plea is that PW-1 came to the house of the appellant/accused; Then the appellant delivered the cheques of his sons. Suddenly, PW-1 took out MO-8 cash and kept it on the table with a request to take it then the accused throw it away; Again PW-1 collected the amount and trusted into the shirt pocket of the accused; It was witnessed by the persons present in the house of appellant at that time; But the trap laying officer intentionally ignored the persons present at the house and did not record their statements to implicate the appellant in the case in pursuance of the report given by PW-1 for statical purpose.

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PW-1 in the cross examination admitted that when he went inside the office room of the appellant, two or three persons sitting there holding tokens to receive cheques. He can identify those persons. But he does not know their names. They are residents of Pothalapalli Village. Therefore, the evidence of PW-1 would establish some persons are present at the house of the appellant to receive cheques belonging to them. Surprisingly, PW-2 i.e.,

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mediator and PW-8, during cross examination did not come forward to admit the presence of some persons at the house of the appellant, during trap proceedings conducted on 22.06.2000.

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The reasons as to why PWs-2 and 8 are not willing to admit about the presence of independent persons at the house of appellant is very clear. If they admit about presence of some persons at that time, they will be asked as to why they were not examined and statement not recorded, during the proceedings.

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PW-1 admitted truth about the presence of independent witnesses, but he was not willing to disclose their names though they belong to his own village. Therefore, as rightly pointed out by the learned counsel for the appellant, even if the accused disclosed the names of the persons present at the house of the appellant at that time. PWs-1 and 8 would deny their names. In those circumstances, the finding of the trial Court that the accused did not disclose the names of the persons present at the house, and therefore, the evidence of DWs-1 to 4 cannot be relied on is perverse.

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In the light of judgment of the Hon’ble Apex Court in Dudh Nath Pandey V. State of U.P., the witnesses examined by the

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defence shall also be considered on par with the witnesses examined by the prosecution.

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In the case on hand, the facts and circumstances discussed above would establish that some persons present at the time of trap proceedings at the house of the appellant. The prosecution purposefully and intentionally suppressed about their presence and details. It goes to the root of the matter creating a serious doubt on the veracity of the case of the prosecution about truth of the trap proceedings.

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The accused need not prove anything beyond reasonable doubt. It is sufficed if he establishes that plea taken by him is also probable, in the facts and circumstances of the case.

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The evidence of DWs-1 to 4 would show their presence at the time of trap proceedings is so probable. Their evidence would show that PW-1 voluntarily kept the money on the table in the house of the appellant. Thereafter, the appellant thrown it away. Again, PW-1 forcibly thrusted the money in the pocket of the appellant.

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All the above facts and circumstances discussed, would create a reasonable doubt that PW-1 for the reasons best known to him, probably as the cheques issued in his name and wife, were

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cancelled, suspected the role of the appellant. Therefore, he intends to teach a lesson to the appellant and presented Ex.P1. Unfortunately, PW-8 without verifying the veracity of the report proceeded with investigation mechanically. He did not choose to examine the persons present there during trap proceedings, for the reasons best known to him and concluded the case as if the appellant made demand and received the gratification amount. The trial Court also did not consider these facts and circumstance in proper perspective and came to an erroneous conclusion that prosecution proved the demand and receipt of the amount.

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CONCLUSION :

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Hence, judgement of the trial Court cannot be sustained. It shall be set aside.

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RESULT :

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In the result, the Criminal Appeal is allowed. The order of conviction recorded by the Additional Special Judge for SPE & ACB Cases, City Civil Court at Hyderabad is set aside. The appellant/Accused is acquitted for the offence under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, 1988. The fine amount if any, paid by the appellant/accused shall be refunded to him, in

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accordance with law. This judgment be certified to the Trial Court,

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as per Section 405 of Cr.P.C.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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JUSTICE B.V.L.N. CHAKRAVARTHI