Dismissed

Syed Abdul Moiz, v. State of Ap Rep by Its Pp Hyd .

Telangana HC24 Jul 2012CRLA/1147/2005

Case brief

AI extract

What is this about?

In this criminal appeal against conviction under the Prevention of Corruption Act, 1988, the High Court upheld the trial Court's judgment. The Court rejected the appellant's defense that the money received was a sale consideration for a motorcycle, finding it unconvincing in light of trap evidence and official context, thereby dismissing the appeal.

What did the court decide?

The Criminal Appeal was dismissed, confirming the conviction and sentence of the trial Court.

Syed Abdul Moiz, Vs State of Ap Rep by Its Pp Hyd . — Corruption | Telangana HC (2012)

¶1

*** THE HON'BLE SRI JUSTICE** R. KANTHA RAO

¶2

+CRIMINAL APPEAL No.1147 of 2005.

¶3

%24.07.2012

¶4

#Syed Abdul Moiz ….Appellant

¶5

Vs. $ State of A.P., rep., by Inspector of Police, ACB, Nizamabad Range, rep., by Spl.Public Prosecutor For ACB cases, High Court, Hyderabad.

¶6

…. Respondent

¶7

! Counsel for the Appellant: Sri T. Bali Reddy representing Sri R.Balakrishna Rao

¶8

Counsel for Respondent: Spl. Public Prosecutor for ACB Cases

¶9

<Gist :

¶10

>Head Note:

¶11

? Cases referred:

¶12

HON’BLE SRI JUSTICE R.KANTHA RAO

¶13

CRIMINAL APPEAL No.1147 of 2005

¶14

J U D G M E N T:

¶15

This appeal is filed against the judgment dated 16.07.2005 passed by the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad (for short ‘the trial Court’) in C.C.No.19 of 1996. The appellant was convicted by the trial Court for the charges under Section 7 and Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’). For the conviction under Section 7

¶16

of the Act, the appellant was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-. He was further sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 13(1)(d) punishable under Section 13(2) of the Act and also to pay a fine of Rs.2,000/-. Challenging the said order of conviction and sentence, the appellant preferred the present appeal.

¶17

2. The brief facts giving rise to filing of the present appeal may be stated as follows: The appellant was working as Assistant Environmental Engineer (AEE), Regional Office, A.P. Pollution Control Board, Nizamabad (for short ‘APPCB’). He issued show cause notice dated 11.08.1995 to the company known as M/s.Al-Hafsa Bone Mill and Fertilizer Company situated at Rudroor village, Nizamabad District, for which P.W.1 is the Managing Partner, stating that the fertiliser company was causing smell nuisance in and around the company. In response thereto, the company sent reply dated 18.08.1995 duly marking copies to the Member Secretary of APPCB stating therein that the company was not causing any smell nuisance, as it is situated far away from the residential locality. According to the prosecution, the appellant without considering the explanation offered, demanded P.W.2 a bribe of Rs.10,000/- for dropping the matter, for which P.W.2 expressed his inability. Thereafter the appellant again issued a final show cause notice dated 23.09.1995 to P.W.2. After receiving the said notice, P.W.2 met the appellant personally at his house situate at Malapalli, Nizamabad and tendered a reply to the said notice also. But the appellant refused to act on the said reply notice and reiterated his demand for bribe. Pressing for the said demand, it is said that the appellant told P.W.2 that at-least he had to arrange an amount of Rs.5,000/- by 14.10.1995, as he propose to visit the company office at Old Bus stand, Bodan on 15.10.1995 at 12.00 noon. It is said that the appellant also threatened that unless the demand was met, he would see the closure of the company by initiating action.

¶18

3. P.W.2 who was not willing to pay the bribe to the appellant, approached P.W.6-Inspector, Anti Corruption Bureau(ACB), Nizamabad range, on 12.10.1995 at 10:30 A.M and lodged Ex.P.2 report basing on which, after conducting discreet enquiries, the Inspector registered a case in

¶19

RC.No.2/ACB-NZB/95 under Section 7 and 11 of the Act. Thereafter P.W.7DSP, ACB, Nizamabad range, secured the presence of P.W.3-Sai BabaJunior Assistant in the Office of Joint Director, Agriculture Department, Nizamabad and J.Gopinath, Accounts Officer-L.W.4, asked them to act as mediators for the trap proposed to be laid against the appellant. With their consent, on 15.10.1995 at 09:00 A.M following the due formalities, laid the trap after introducing P.W.2 to the mediators and also introducing mediators to P.W.2. At the option of P.W.3, he was taken by P.W.7 as a shadow witness to watch as to what would transpire between the appellant and P.W.2. He instructed P.W.3 to display the signal of wiping his face with handkerchief when the appellant demands and accepts the tainted amount.

¶20

4. P.Ws.2 and 3 went inside the office of the company and were waiting there for the arrival of the appellant, while the remaining trap party took vantage positions. At about 12:35 P.M the appellant came on Bajaj Kawasaki Motor-cycle bearing No.AP 25 B 1526 and entered office of the company. At 12:45 P.M P.W.3 came out and displayed the pre-arranged signal. Subsequently, the trap party proceeded into the office of the company. P.Ws.1 and 2 were asked to wait outside. When P.W.7 questioned the appellant regarding the demand and acceptance of illegal gratification of Rs.5,000/-, initially, he kept quiet. Later, according to the prosecution, he affirmed receiving the amount from P.W.2. Subsequently, the appellant took out a wad of currency notes from his right side pant pocket, which was received from P.W.2 and placed it on the table. The phenolphthalein Sodium Carbonate reaction test conducted by P.W.7 yielded positive results. However, in the course of trial, the explanation offered by the appellant was that P.W.2 purchased his(appellant’s) motor cycle for an amount of Rs.10,000/- and that on the date of alleged trap, he received an amount of Rs.5,000/- from P.W.2 as part of the sale price of the motor cycle and that he never demanded and received the bribe. In the course of the trial before the trial Court, P.Ws.1 and 2 did not fully support the prosecution version. Though they stated that the amount was received by the appellant from P.W.2, according to them, it was towards part of the sale price of the motor-cycle, which the appellant sold to P.W.2. They gave a contradictory

¶21

version to Ex.P.2 report lodged by P.W.2 before the Inspector of ACB.

¶22

5. P.W.3-Sai Baba, the mediator however supported the prosecution version. Apart from testifying about the entire trap proceedings as per prosecution version, his version before the trial Court reveals that the appellant enquired P.W.2 whether he brought the amount for which P.W.2 answered affirmatively, took out the currency notes and gave them to the appellant, the appellant in turn received the amount and kept it in the right side pant pocket. Immediately, he came out and gave the pre-arranged signal.

¶23

6. P.W.4 who was working as Senior Environmental Engineer in APPCB gave evidence before the trial Court that on the recommendation made by the appellant, the head office is only competent to take any penal action against the company of P.W.2.

¶24

7. P.W.5 who worked as the Section Officer in the Planning Department, Raj Bhavan, under Sri C.S.Rangachari, Principal Secretary to the Government of A.P., deposed as to the according of sanction under G.O.Ms.No.118 dated 03.07.1996.

¶25

8. P.W.6 is the Inspector of Police, ACB, Nizamabad Range at the relevant time. He gave evidence before the trial Court stating that he received Ex.P.2 report from P.W.2, and forwarded the same to D.S.P, ACB, Hyderabad who was undergoing training at that time, who in turn made an endorsement directing him to cause discreet enquiries against the appellant, he/P.W.6 caused discreet enquiries and informed the D.S.P, A.C.B that the enquiries revealed that the appellant was involved in corruption activities and that his reputation is bad.

¶26

9. P.W.7 is the D.S.P., A.C.B, Nizamabad Range at relevant time and he speaks about registering the case against the appellant, taking up investigation and laying the trap against the appellant and submitting his preliminary report to the DG, ACB, who took up further investigation in this case.

¶27

10. P.W.8 is the Inspector of Police, ACB, Nizamabad Range at relevant time. He took over investigation from P.W.7, examined the witnesses and filed charge sheet against the appellant, after completing the investigation.

¶28

11. The Appellant, on the other hand, examined four witnesses D.Ws.1 to 4 on his behalf. D.W.1 who is Superintendent in APPCB stated in his evidence before the trial Court that the APPCB is an independent body, the Member Secretary of the APPCB is the appointing authority of the appellant and the officer who is higher in rank to the Member Secretary is competent to remove the appellant.

¶29

12. D.W.2 is a motor-cycle mechanic. He deposed before the trial Court about the appellant asking him to examine the condition of the motorcycle which he intended to dispose off to P.W.2 and thereafter appellant selling the motor-cycle to P.W.2 for an amount of Rs.10,000/- and his agreeing to receive the amount from P.W.2 on 15.10.1995 and deliver the vehicle after receipt of the entire amount.

¶30

13. D.W.3 is an accountant in the head office of APPCB. He produced T.A bills of the appellant. He also produced stay certificate issued to the appellant showing that he attended head office on 12.10.1995 regarding the admission of samples at Board Laboratory which was collected on 11.10.195 from M/s.Nizam Sugars Limited. The purpose of examining this witness is to show that on the date of the alleged demand of bribe, the appellant was in the head office.

¶31

14. D.W.4 is the Environmental Engineer in APPCB, Zonal Office, Hyderabad. He gave evidence before the trial Court to the effect that the AEE is competent only to issue show cause notice to any factory or company by marking a copy to the head office and later submit his remarks on the file along with the explanation of the concerned company to the head office. If the explanation offered is not proper and on the remarks sent by the AEE, the head office is competent to take action and that the AEE cannot show any favour to any factory or company in respect of any violation committed.

¶32

15. After scrutinizing the above-mentioned evidence, the learned trial Court by following the authorities of the Hon’ble Apex Court rightly held that the Principal Secretary to the Government of A.P., who is higher in rank to the Chairman and Member Secretary of the APPCB is competent to accord sanction for prosecution of the appellant. However, the validity of the sanction order issued in this case has not been seriously challenged in the present appeal.

¶33

16. On considering the entire evidence on record, the learned trial Court concluded that the prosecution could be able to prove that the appellant demanded bribe from P.W.2 to do official favour and accepted the same and accordingly convicted the appellant for the offences under Section under Section 7 and Section 13(1)(d) and 13(2) of the Act and sentenced him to punishment as mentioned above.

¶34

17. Now, the point for consideration in the present appeal is: Whether the conviction and sentence passed by the learned trial Court against the appellant can be sustained or whether the appellant is entitled for benefit of doubt?

¶35

Sri T. Bali Reddy, learned counsel for the appellant would contend that P.Ws.1 and 2 did not support the prosecution version on the issue that the appellant demanded and accepted the bribe, their evidence goes to show that the amount was received by the appellant towards part of sale price of the motor-cycle which he sold away to P.W.2 and therefore, there being no proof of demand and acceptance of bribe which is essential to establish the charges under section 7 and Section 13(1)(d) and 13(2) of the Act, the appellant is entitled for acquittal. In support of his contention, the learned counsel relied on the following decisions:

¶36

1. Banarsi Dass v. State of Haryana^[1] wherein the Supreme Court held as follows: “ the High Court has fallen in error insofar as it has drawn the inference of demand and receipt of the illegal gratification from the fact that the money was recovered from accused. PWs.10 and 11, were neither the eye-witnesses to the demand nor to acceptance of money by the accused from the complainant. To constitute an offence under Section 161

¶37

IPC as also under Section 5(1)(d) of the Act, proof of demand and acceptance of bribe by accused is essential and in their absence, accused entitled to acquittal.

¶38

2. Punjabrao v. State of Maharashtra^[2] wherein the Supreme

¶39

Court held as follows:

¶40

“ 3. We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.”

¶41

3. V.Venkata Subbarao v. State of A.P. ,^[3] wherein the Supreme

¶42

Court held as follows:

¶43

“Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved.”

¶44

18. On the other hand, the learned Special Public Prosecutor for ACB cases would contend that in this case there is the evidence of P.W.3 who completely supported the prosecution case as to pre-trap and post-trap proceedings, his evidence goes to show that the appellant asked P.W.2 whether he brought the amount and when P.W.2 answered in affirmative, the appellant received the amount from P.W.2 and put it in his pant pocket. The learned Special Public Prosecutor further contended that the entire circumstances clearly indicate that the appellant demanded illegal gratification and accepted the same for doing the official favour and in the absence of any reasonable explanation from the appellant, the learned trial Court rightly convicted him for the charges under section 7 and Section 13(1) (d) and 13(2) of the Act which warrants no interference by this Court in the present appeal.

¶45

19. In support of his contention, he relied on AIR 2006(12) Supreme

¶46

Court Cases 277 wherein the Supreme Court held as follows:

¶47

“When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case.”

¶48

20. If the facts of the present case are examined with reference to

¶49

the contentions urged by the learned counsel appearing for the appellant and the learned special Public Prosecutor for ACB Cases and also in the light of the ratio laid by the Hon’ble Supreme Court in the afore-cited judgments, in the first instance, it requires to be noticed that there is no dispute about the fact of the appellant issuing Ex.P.11-show cause notice to the fertiliser company of P.Ws.1 and 2 on the ground that it was causing smell nuisance in the vicinity. There is also no dispute about the fact that P.W.2 submitted explanation to the said notice stating that the factory was far away from residential locality and there was no scope for its causing any smell nuisance. Despite the said fact, the appellant gave second notice, which is said to be a final show cause notice. The evidence of P.W.4 discloses that the final decision against the company of P.Ws.1 and 2 can be taken by the APPCB headed by the Chairman and Member Secretary, and the appellant has no competence to take the action of closing down the company or any other action. The evidence of P.W.2 as well as that of D.W.4 clearly discloses that the explanation submitted by P.Ws.1 and 2 would be forwarded by the appellant to the head office of APPCB with his remarks and basing on the explanation as well as the remarks of the appellant, appropriate action will be taken by the Chairman and Member Secretary of the APPCB. Therefore, it can safely be inferred that if at all the appellant can do some official favour to P.Ws.1 and 2 and on the crucial date, official favour was pending with the appellant, there was occasion for him to demand illegal gratification from P.Ws.1 and 2. Further P.W.2 lodged a report with P.W.6 stating that the appellant is demanding illegal gratification and was harassing P.Ws.1 and 2. Though P.Ws.1 and 2 turned hostile and did not support the prosecution version, the fact remains that P.W.2 lodged a report to P.W.6 against the appellant. Further the evidence of P.W.4 reveals that though the copy of the first show cause notice was sent to the APPCB, the appellant did not send a copy of the final show cause notice. Therefore, from the conduct of the appellant, it can safely be inferred that he threatened P.Ws.1 and 2 to meet his demand. The appellant issued a final show cause notice but it is not required for him to issue any such notice since the appropriate action has to be taken at the level of the head office of the APPCB. Therefore, it is clear case where there is every possibility for the appellant to use his official

¶50

position and demand illegal gratification on the promise that he would do some official favour to P.Ws.1 and 2. Therefore, the question that ultimately whether the appellant is competent to take any action against the company of P.Ws.1 and 2 becomes inconsequential.

¶51

21. As regards the defence version of the appellant, it is required to be examined whether the said theory put forward is probable or not. The appellant is an AEE in APPCB. It is most unlikely that he would enter into an agreement to sell his motor-cycle to P.W.2 after issuing Ex.P.11 show cause notice to P.W.2. It is also very unlikely that after entering into the agreement, he himself proceeding to the office of the company of P.Ws.1 and 2 to handover the motor-cycle and to receive the amount from P.W.2. The evidence of P.W.2 who is said to be a motor mechanic that in his presence the bargain was settled and appellant agreed to handover the motor-cycle on receiving the entire amount of Rs.10,000/- at the company of P.Ws.1 and 2 is quite un-convincing and no confidence can be reposed on D.W.2 who seems to have been planted by the appellant for the purpose of giving evidence to the effect that at the relevant time the appellant was at the company premises to receive the sale consideration of motor-cycle from P.W.2. It appears to be quite un-natural that the appellant who is an AEE in the APPCB for selling his motor cycle to P.W.2 came to the company of P.W.2 with his motor-cycle to receive the amount and to handover the same to P.W.2. Therefore, the learned trial Court in my view rightly rejected the defence theory put forward by the appellant.

¶52

22. Under the circumstances stated herein before, I am of the considered view that since the prosecution has proved by positive evidence that the appellant received an amount of Rs.5,000/- from P.W.2 and the said amount was found to be arranged to be given to the appellant in the trap proceedings laid by P.W.7, the burden certainly, as per legal position, shifts onto the appellant and the appellant in the instant case failed to discharge his burden since the explanation offered by him is found to be un-convincing and unreal. The learned trial Court therefore, in my view rightly convicted the appellant for the offence under Section 7 and Section 13(1)(d) punishable under Section13(2) of the Act. The sentence being not so severe, needs no

¶53

interference by this Court in the appeal.

¶54

23. Consequently, the Criminal Appeal is dismissed confirming the conviction and sentence passed by the trial Court in C.C.No.19 of 1996 against the appellant/accused for the charges under Section 7 and 13(1)(d) punishable under 13(2) of the Prevention of Corruption Act, 1988.

¶55

JUSTICE R. KANTHA RAO

¶56

24^th July, 2012 Note: L.R copy to be marked. B/o(vjl)

¶57

[1] 2010(1) ALD (Crl) 924 (SC) [2] AIR 2002 SC 486 [3] 2007 Crl.L.J 754

Syed Abdul Moiz, v. State of Ap Rep by Its Pp Hyd .

Case brief

What is this about?

What did the court decide?

Syed Abdul Moiz, v. State of Ap Rep by Its Pp Hyd .

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Venkat Ram Reddy Reddygari Vs Arikala Narsa Reddy

Mir Sadath Ali Vs N. Krishna Rao

Kolanu Sathya Narayana Vs M. Venkanna

M.Balaram, Vs The State of a.P., rep. by the Spl. Public Prosecutor

Shakunthala Vs The State of Andhra Pradesh

J.Rajalingam, Vs The State of Andhra Pradesh