Dismissed

State, rep. by Dy. Supdt. of Police, v. Shalam Sultan Ahmed

Telangana HC4 Dec 2012CRLA/1449/2005

Case brief

AI extract

What is this about?

In this appeal against acquittal, the appellant sought to overturn the trial court's order acquitting the accused officer. The court held that recovery of money and a positive chemical test alone could not disprove lack of demand. The acquittal, based on hostile prosecution witnesses, was maintained as not perverse.

What did the court decide?

The appeal filed by the ACB fails and is dismissed.

State, rep. by Dy. Supdt. of Police, Vs Shalam Sultan Ahmed — Corruption | Telangana HC (2012)

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1449 OF 2005

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DATE: 04.12.2012

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BETWEEN:

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State Rep.by Dy. Superintendent of Police .. Appellant And Shalam Sultan Ahmed .. Respondent

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1449 OF 2005

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JUDGMENT:

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This appeal is at the instance of the Anti Corruption Bureau against the order of acquittal dated 27.01.2005 passed by the Special Judge for SPE and ACB Cases, Vijayawada in C.C.No.10 of 1999.

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2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

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3. The respondent/accused – Shalam Sultan Ahmed was the Regional Electrical Inspector in the office of the Regional Electrical Inspector, Arundalapet, Vijayawada, Krishna District. He was tried by the learned Special Judge 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’) on the allegation that he demanded and accepted bribe of Rs.2,000/-from PW.1-Y.V. Appa Rao for doing official favour viz. for approval of high tension electrical drawings as illegal gratification other than legal remuneration.

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4. In order to prove the said charge, the prosecution examined PWs.1 to 10, marked Exs.P.1 to P.21 and MOs 1 to 6. On behalf of the defence, Exs.D1 was marked.

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5. All the material witnesses including the de facto complainant (PW1) having been turned hostile, the learned trial Court acquitted the

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respondent for the aforementioned charges. Feeling aggrieved, the ACB preferred the present appeal.

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6. According to the prosecution, PW.1 visited the office of the respondent in order to present Exs.P.1 to P.3 seeking approval of drawings relating to high tension electrical fabrication, on 01.02.1999, the respondent demanded from him an amount of Rs.2,000/- as illegal gratification. On 02.02.1999 again PW.1 met the respondent for the same purpose, the respondent reiterated the demand and told him that unless the amount of Rs.2,000/- is paid to him, he would not approve the drawings. PW.1, who was not willing to pay the bribe amount, approached, Dy.S.P., ACB (PW.10), Vijayawada Range and lodged a report.

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7. Basing on the said report, a case in Crime No.7/ACB-VJA/99 was registered under Section 7 and 13(1)(d) read with 13(2) of the Act on 02.02.1999 at about 12.30 PM. On the said date, at about 04.30 PM, a trap was laid and according to the prosecution, the respondent demanded and accepted the bribe of Rs.2,000/- from PW.1 in the course of the said trap.

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8. The crucial aspect in this case is that PW.1, the de facto complainant did not support the prosecution version before the trial Court. He had deposed categorically that the respondent never demanded or accepted any bribe from him and at the instance of some contractors, mediators, constables and the Deputy Superintendent of Police, ACB filed Ex.P.4 report as the contractors viz. P.V.Reddy and Venkateswara Rao told him that the respondent was a straight forward officer and if any work was pending with the respondent, one has to report to the ACB Officials immediately.

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9. PWs.3 to 7, the employees working in the office of the respondent did not support the prosecution version and they were treated hostile. The only incriminating material against the respondent is that the tainted amount of Rs.2,000/- was recovered from his table and when his right hand fingers were subjected to chemical test, the said test yielded positive result.

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10. To prove the graft charge, the prosecution has to establish the demand and acceptance of bribe by the accused either by direct or circumstantial evidence. Mere recovery of the tainted amount or the chemical test yielding positive result do not enable the Court to presume that the accused voluntarily accepted the bribe.

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11. In the instant case, PW.3 stated in his evidence that at about 04.00 PM when he went to the office, he was calling his attender stating that PW.1 left the office after keeping some amount on his table and at that point of time, he noticed four persons entering into the office of the respondent. His evidence also discloses that he found some amount on the table of the respondent and the same was seized by the Dy.S.P, ACB. Similarly, PW.7, the attender in the office of the respondent stated in his evidence before the trial Court that at about 04.00 PM on the date of trap, he saw PW.3 entering into the office room of the respondent, he was called by the respondent and when he went to the respondent, he told him to call PW.1. This witness also stated that the respondent informed him that PW.1 kept some amount on the table and instructed him to call PW.1 to take back the amount. The evidence of PW.7 is also to the effect that on the date of trap, PW.1 came to their office and gave him a chit seeking interview of the respondent. PW.7 delivered the chit to the respondent and the

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respondent initialed on the chit with green ink and subsequently, the same chit was seized by the Dy.S.P., ACB. According to PW.7, PW.1 removed the chit from his left side shirt pocket where admittedly the tainted amount was kept.

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12. Basing on the evidence of PW.7 and the defence theory, the learned trial Court rightly recorded a finding that since the chit and the tainted amount were kept in left side shirt pocket of PW.1 and in view of the fact that the respondent received the chit and initialed on the same, the right hand fingers of the respondent might have yielded positive result to the chemical test conducted. It is also important to notice that the Dy.S.P., ACB did not conduct any chemical test on the chit. If any chemical test was conducted on the chit, as rightly pointed out by the learned trial Court, it also would have yielded the positive result. In any event, there is no evidence either direct or circumstantial showing that the respondent demanded and accepted the bribe amount from PW.1.

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13. The law does not enable the Court to convict the respondent for the charge of graft on the mere ground that the chemical test conducted on the right hand fingers of the respondent yielded the positive result and the tainted amount was recovered from the table of the respondent. In the appeal against acquittal, the appellate Court is not supposed to upset the finding recorded by the trial Court merely because another view is possible. The appellate Court would be justified in reversing the finding of acquittal to one of conviction only when it was not based on evidence or it was perverse. In the instant case, the finding of acquittal recorded by the trial court is based on evidence and reasoning and therefore, it does not require any interference in this appeal.

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14. Consequently, the appeal filed by the ACB fails and the same is dismissed.

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_________________ R.KANTHA RAO,J

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Date: 04.12.2012 Kvrm

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1449 OF 2005

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DATE: 04.12.2012