Allowed

Sri Kothapalle Nageswara Rao, v. The State of a.P., through Range Inspector-Ii

Telangana HC30 Jul 2012CRLA/1095/2005

Case brief

AI extract

What is this about?

In an appeal against conviction under the Prevention of Corruption Act, the High Court acquittal the appellant. It held that the prosecution failed to prove the demand and acceptance of bribe, as the sole complainant's testimony was uncorroborated and inherently unreliable.

What did the court decide?

The conviction and sentence are set aside. The appellant is acquitted.

Sri Kothapalle Nageswara Rao, Vs The State of a.P., through… — Corruption | Telangana HC (2012)

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*** THE HON’BLE MR JUSTICE R. KANTHA RAO**

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+ CRIMINAL APPEAL No. 1095 OF 2005

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% DATE: 30.07.2012 Between: # Kothappalle Nageshwara Rao … Appellant And $ State of A.P. Rep.by its Public Prosecutor, High Court of A.P. Hyderabad. . … Respondent ! Counsel for the Appellant : Sri C.Padmanabha Reddy ^ Counsel for respondent: Sri Sri Ghania Moosa, Spl.PP for ACB

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< GIST: >HEAD NOTE: ? Cases referred: [1] AIR 1965 AP 105(VOL.52, c.31)(1) 2 2004 CRL.L.J620

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1095 OF 2005

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DATED: 30.07.2012

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BETWEEN:

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Kothappalle Nageshwara Rao .. Appellant And State of A.P. Rep.by its Public Prosecutor, High Court of A.P. Hyderabad.

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.. Respondent

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1095 OF 2005

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JUDGMENT:

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This appeal arises out of the judgment dated 30.06.2005 passed by the Special Judge for SPE and ACB Cases, Vijayawada in C.C.No.1 of 1999.

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2. The appellant was tried by the learned Special Judge for the offences under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988, was found guilty of the said offences and was convicted and sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.1,000/for the offence under Section 7 of the Prevention of Corruption Act, 1988 and was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- for the offence under Section 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988. The substantive sentences were directed to run concurrently. Challenging the said order of conviction and sentence, the present appeal is filed by the appellant.

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3. The brief facts essential for disposing of the present appeal may be stated as follows:

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The charge specifically framed against the appellant is that on

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16.06.1998 at about 4.45 PM, the appellant, who is a Junior Accountant in Sub-treasury Office, Guntur demanded an amount of Rs.100/- as bribe from M.Venkateshwara Rao-PW.2, stamp vendor for performing official duty of entering the challan particulars in the concerned register to facilitate him to obtain stamps from the shroff and in pursuance of the said demand on 27.06.1998 at about 12.30 PM, at his office at Guntur demanded and accepted an amount of Rs.100/- as gratification other than the legal remuneration from PW.2 for the said purpose, accordingly committed the offences under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988.

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4. It was the case of the prosecution that PW.2, stamp vendor, who was not willing to pay the bribe approached PW.6, DSP, Anti Corruption Bureau, Vijayawada and gave a report against the appellant. Basing on the said report, PW.6 registered a case in Crime No. 12/ACB-VJA/98 under Section 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988. Ex.P.2 is the report of PW.2. Ex.P.15 is the original FIR. Subsequently a trap was laid on 17.06.1998, during the course of which, it is said that when PW.2 approached, the appellant demanded to pay an amount of Rs.100/and when PW.2 offered to pay the same, he told him to place the said amount on his table and keep stamp pad on it. PW.2 placed the amount as directed by the appellant, thereafter came outside and gave the pre-arranged signal to the trap laying party, on that, PW.6 went in to the office and found Rs.100/- on the table of the appellant. He got conducted phenolphthalein sodium carbonate reaction test, in the course of which, he said that when the appellant rinsed his right hand fingers into the sodium carbonate solution, it turned into light pink colour. Subsequently, after completing the investigation, a charge

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sheet was laid against the appellant.

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5. In the course of the trial before the learned Special Judge for ACB Cases, Vijayawada, the prosecution in order to prove the guilt of the appellant, examined PWs.1 to 7 and marked Exs.P.1 to P.15, Exs.D1 and D2 and MOs 1 to 6.

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6. The learned Trial Court, on considering the entire evidence on record, convicted the appellant for the offences under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 and sentenced him to punishment as mentioned above.

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7. Now the point for determination in this appeal is whether the conviction and sentence passed by the learned Trial Court can be sustained?

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8. PW.2, the stamp vendor spoke about his lodging report with PW.6 and getting the trap laid against the appellant. He stated in his deposition that on 17.06.1998 he approached the appellant and requested him to give non judicial stamp papers for which he demanded him bribe amount of Rs.100/-, when he replied affirmatively and offered to pay the amount, the appellant asked him to keep the amount on his table and he kept the tainted amount on the table on his instructions, subsequently, after his giving pre-arranged signal, the trap laying party went into the office of the appellant and conducted phenolphthalein sodium carbonate reaction test, the test conducted yielded positive result when the right hand fingers of the appellant rinsed into sodium carbonate solution turned into pink colour.

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9. PW.3, who was working as Shroff in the District Treasury Office stated in his evidence that on the date of alleged trap, PW.1

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approached him with Ex.P.4 – challan and asked him to give indent form and discount form-Exs.P.3 and P.5 in order to give them to the appellant, accordingly, he gave Exs.P.3 and P.5 to the appellant. This witness, however, stated in the cross-examination that on 16.06.1998 i.e. on the previous day while he was in the office adjacent to the seat of the appellant, he noticed exchange of words between the appellant and PW.2 in connection with stamps, he interfered and pacified the quarrel.

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10. PW4, the Sub Treasury Officer stated that the appellant is the concerned clerk, who was dealing with the issuance of N.J.Stamps. He stated in his deposition that Exs.P.3 and P.4 bear his signature. According to him, after putting his initials on challan, he would hand over them to another clerk, who would allot challan number, thereafter, they would be sent to Shroff, PW.3. Ex.D.1 is the booklet containing attested Xerox copies showing indents and challans paid by PW.1 from 01.09.1996 to 01.06,1998. The appellant also marked the attested copy of letter in Crime No.58 of 1998 of Nagarampalem Police Station showing that basing on the report of the appellant, a case was registered against 13 stamp vendors at Guntur. According to PW4, copy was forwarded to him along with note put up by the appellant, wherein he passed orders stopping supply of stamps to the 13 stamp vendors. PW4 also testified the fact that during his tenure as Sub Treasury Officer, there were no complaints against the appellant.

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11. PW.5 who worked as Assistant Engineer, Irrigation Department, Vijayawada at relevant time acted as mediator in the case at the instance of the DSP, ACB. He spoke about the pre-trap and post trap proceedings. His evidence is to the effect that after the trap party received the signal from PW.2, they immediately rushed into the office

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of the appellant and found him sitting on a chair and DSP taking him in to custody and conducting phenolphthalein sodium carbonate reaction test and recovering the amount of Rs.100/- from the table of the appellant in his presence and another mediator.

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12. PW.6 is the trap laying officer. He spoke about registering the case against the appellant basing on the report of PW.2, laying trap against the appellant, conducting phenolphthalein sodium carbonate reaction test and recovering the amount of Rs.100/- from the table of the appellant in his office.

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13. Basing on the aforesaid evidence, the learned trial Court convicted the appellant for the offences under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 and sentenced him to punishment as stated above.

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14. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant contended that absolutely in this case there is no evidence to show that the appellant ever demanded bribe amount and the conviction recorded by the learned trial Court is based on surmises and conjectures and the same being not based on any legal evidence, the conviction and sentence passed against the appellant are liable to be set aside.

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15. On the other hand, the learned Standing Counsel for ACB cases would submit that the circumstances arising from the evidence of PWs.2 to 6 clearly indicate that the appellant demanded and received the bribe amount, therefore, the order of conviction and sentence passed against the appellant by the learned trial Court needs no interference.

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16. In this case, there is no accompanying witness involved by the trap laying officer to witness the demand and acceptance of bribe amount by the appellant. Excepting the sole testimony of PW.2 at whose instance, the trap was laid which is to the effect that the appellant demanded and accepted an amount of Rs.100/- from PW.2 there is no evidence in proof of demanding and accepting the bribe. Further even according to the evidence of PW.2, the appellant did not directly receive the amount from PW.2 and it is said that on the instructions of the appellant, PW.2 placed the amount on the table and put a stamp pad on the amount. When it is the specific case of the prosecution that the appellant did not receive the amount paid by PW.2, it cannot rely on the point that the phenolphthalein sodium carbonate reaction test yielded positive result. The charge is that the appellant demanded illegal gratification for the purpose of entering the challan particulars in the concerned registers, so as to enable PW.2 to obtain non judicial stamps. But in the

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cross-examination PW.2 admitted that without assigning challan number, payment will not be made and in the present case, after obtaining the challan number, he went to the bank for making payment and one clerk by name Ibrahim allotted challan number. He also further admitted in the cross-examination that when the amount was paid into the bank, the stamps will not be issued on the same day and will be issued on the next day after receiving the bankers scroll. He also admitted in the cross examination that Ex.P.4 challan was with him at the time of pre-trap proceedings and that he had shown the challan to the mediators at the time of pre-trap proceedings. He further stated in the cross-examination that on 17.06.1998 when he approached the appellant at the first instance, the appellant gave challan to him and on that the appellant informed him to bring the

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discount bill and indent which were available with Shroff and accordingly, he brought and gave them to the appellant.

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17. The version of PW.2 in the cross-examination probablises the defence theory that since the appellant received the challan from PW.2 and kept the same in his pocket the phenolphthalein sodium carbonate reaction test yielded positive result and it has nothing to do with the drawing inference of the guilt of the appellant. Further, the version of PW.3, reveals that on the previous day there was exchange of words between the appellant and PW.2, during the course of which, he interfered and pacified the matter. According to PW.4, on the report lodged by PW.1, a case was registered against 13 stamp vendors in Nagarampalem Police Station and thereafter an order was passed to stop supply of stamps to those vendors by the Sub-treasury Office, Guntur. Obviously, therefore, there was enough motive for PW.2 to give false version to involve the appellant in the instant case. Moreover, the evidence of PW.1 runs counter to the charge levelled against the appellant. As per the charge, he demanded the bribe for the purpose of entering the challan particulars into the register concerned, whereas according to the evidence of PW.2, the appellant entered the particulars into the register, but demanded bribe for the purpose of handing over the non judicial stamps to PW.2. As per the evidence on record, the appellant was not entrusted with the job of handing over of non judicial stamps to the stamp vendors. The learned Standing Counsel for ACB Cases relied on a decision in IN

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RE K.V. AYYASWAMY v STATE^[1] wherein it was held that where there are only two persons i.e. accused and another person, who paid the bribe at that time, one cannot expect corroboration nor is it necessary that corroboration in every particular is essential. This

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decision is not applicable to the facts of the present case since in the instant case there was no explanation from PW.6, trap laying officer as to why, did he not send any accompanying witness along with PW.2 to the appellant to witness the transaction between PW.2 and the appellant.

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18. Further, even if it is accepted that the corroboration is not a requirement, the evidence of the complainant has to be trustworthy and inspire confidence of the Court, otherwise, it is not safe to rely on the sole testimony of the complainant. The learned Special Public

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Prosecutor relied on STATE OF A.P v. V.VASUDEVA RA O^[2] wherein the Supreme Court held that when the plea of the accused was that the money recovered was the loan borrowed by the accused from the complainant and it was found to be incredible, the presumption can be drawn that the accused accepted the bribe by a plain reading of illustration (a) to Section 114 of the Evidence Act. This decision is also not applicable to the facts of the present case, since the prosecution in this case failed to establish by cogent evidence that the accused either demanded or accepted the bribe. The phenolphthalein sodium carbonate reaction test which was conducted though found to be

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positive it is inconsequential as the amount was not directly recovered from the person of the appellant. The tainted amount was found on the table of the appellant. From the circumstances of the case, it can be understood that there was enmity between PW.2 and the appellant and that PW.2 had every reason to involve the appellant in the instant case falsely. For all these reasons, I am of the considered view that the appellant is entitled for benefit of doubt and the learned trial Court erroneously recorded conviction against him.

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19. In the result, the conviction and sentence passed by the Special Judge for SPE and ACB Cases, Vijayawada against the appellant for the offences under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 in C.C.No.1 of 1999 are set aside . The appellant is acquitted. The appeal is allowed.

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_________________ R.KANTHA RAO,J

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Dated: 30.07.2012 Note: L.R. copy to be marked b/o kvrm

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1095 OF 2005

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DATE: 30.07.2012

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