Allowed

B. Subba Rao, v. State of a.P., rep. by Inspector of Police

Telangana HC3 Jan 2012CRLA/2609/2004

Case brief

AI extract

What is this about?

In an appeal against conviction for bribery under the Prevention of Corruption Act, 1988, the High Court upheld the trial court's finding that the appellant, a public servant, demanded and received a bribe. The Court reasoned that while the initial bills were cleared in December 1994, the appellant retained control over their dispatch, and the involuntary nature of the prosecution case proved the

What did the court decide?

Latitude given to classify the offence under Section 13(1)(d)(i); conviction confirmed; sentence upheld; appeal dismissed.

B. Subba Rao, Vs State of a.P., rep. by Inspector of Police — Corruption | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRIMINAL APPEAL No.2609 of 2004

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JUDGMENT:

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Appellant, a public servant, was tried on two charges under Prevention of Corruption Act, 1988 (for short Act) in C.C.No.17 of 1996 on the file of the Court of Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad (trial court). The first charge is under Section 7 and the second which is connected to the first one is under Section 13(1)(d) read with Section 13(2) of the Act and both are based on the allegations of bribery and trap.

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2. The trial court after considering the matter by its judgment dated 15.12.2004 convicted the appellant of both the above charges and sentenced him to undergo one year RI and pay a fine of Rs.1,000/- on each count besides imposing default clause prison sentences for non-payment of fine and directed that substantive sentences of imprisonment shall run concurrently. While mentioning Section 13(1)(d), the trial court did not specify under which of the sub-clauses of the said provision, it recorded the conviction. This aspect will be dealt with in the course of this judgment. Questioning the said judgment, this appeal is filed by the appellant who is hereinafterwards referred to for convenience as the accused. As the whole matter is now at large before this Court, it has to be considered in detail.

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3. At the relevant time the accused was working as Divisional Accounts Officer in the office of the Executive Engineer, Tungabhadra Project, Adoni Division, Kurnool District (referred to as office of the accused) and was in the service of the

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Government of Andhra Pradesh and was admittedly a public servant. P.W.6 Rajasekharam (de facto complainant) earlier worked as Irrigation Work Inspector in the same Department in Kodumuru Sub-Division and retired from service on 30.6.1992. On the date of his retirement or sometime shortly thereof a sum of Rs.10,252/- and another sum of Rs.2,940/- became due and payable to P.W.6 towards differential incremental arrears and leave encashment arrears respectively. These two bills of P.W.6 were to be admittedly sent by the Kodumuru Sub-Divisional Office of Tungabhadra Project to the office of the accused at Adoni and they were to be passed there. After his retirement P.W.6 was staying at Allagadda which is also a town in Kurnool District.

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4. The prosecution case is that in connection with the clearance of the aforesaid two bills, P.W.6 went to the office of the accused on 4.3.1995 and met the accused and also one Clerk Mulla Ali Saheb of the Establishment Section therein and on that day the accused demanded Rs.500/- and that Clerk Mulla Ali Saheb also demanded Rs.300/- as bribes for getting the bills sanctioned and passed but P.W.6 expressed his inability and went away. It is then stated that subsequently on 16.3.1995 also P.W.6 met the accused and the above Clerk and they again reiterated their demand. Unwilling to pay the above bribes, P.W.6 gave Ex.P.9 complaint on 20.3.1995 to P.W.10 K.Venugopala Rao who was then DSP, ACB at Kurnool and he registered the case and it is further stated that P.W.10 made arrangements to lay the trap for the accused and the above Clerk on 22.3.1995.

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5. It transpires from the evidence that pre-trap proceedings were held by DSP, ACB on 22.3.1995 in his office at Kurnool at about 8.15 a.m. and the sums of Rs.500/- and Rs.300/- brought by

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P.W.6 were treated with phenolphthalein powder and instructions were given to P.W.6 to go and pay the bribes to both the accused and the above Clerk if they demand in their office at Adoni. P.W.1 T.Krishna Murthy is a Police Constable in the ACB office in Kurnool and he was instructed to accompany P.W.6. P.W.2 M.Venkatram Reddy the then Technical Assistant in the office of the Assistant Director of Agriculture at Kurnool and one Mr.P.Prabhakar Reddy the then Agricultural Officer were the mediators for both the pre-trap and post-trap proceedings.

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6. The further version of the prosecution is that at the time of trap only the accused was available and not the other Clerk and that P.W.6 on that day at about 2.45 p.m. paid the amount to the accused on his demand in his office and the same was recovered from him subsequently by the trap party headed by P.W.10 the DSP, ACB. It is stated that his subsequent investigation disclosed that the accused retained the above two bills of P.W.6 with him and did not send them to the Treasury awaiting payment of bribe by the P.W.6 and received the bribe of Rs.500/- from P.W.6 and that both the prior demand and subsequent demand and receipt of the bribe were established and therefore he is guilty of the aforesaid two offences. As already mentioned, the trial court upheld both the charges and convicted and sentenced the accused as aforesaid.

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7. So far as the plea of the prosecution that the accused was a public servant within the meaning of the Act on the date of the offences and that it obtained a valid sanction order which is marked as Ex.P.8 from the competent authority for his prosecution, the learned counsel for the accused did not raise any dispute regarding the same. Hence the trial court findings on the

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above aspects are confirmed. Regarding the merits of the matter, the defence of the accused is that he never demanded the bribe and that P.W.6 thrusted the money into his pocket. He also took the plea that he already cleared the bills in December 1994 and therefore he had no need for demanding the bribe.

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8. It has now to be seen whether the evidence on record establishes beyond reasonable doubt both the above two charges brought against the accused as held by the trial court. The details of the evidence let in by the prosecution and the documents marked on behalf of the accused are mentioned in the appendix of evidence given at the foot of the trial court judgment.

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9. Sri Bal Reddy, the learned senior counsel appearing for the accused pointed out that the evidence would disclose that the accused already cleared the bills from his desk in December, 1994 and sent them to the Executive Engineer who was the competent authority to sign the bills in order to be sent them to Treasury or Pay and Accounts Office (PAO) and therefore there could not have been any demand from the accused for bribe on 4.3.1995 or on 16.3.1995 as spoken to by P.W.6 and consequently the prosecution version regarding prior demand for bribe should be rejected. He then secondly contended having regard to the above evidence that the bills were already cleared by the accused in December, 1994, the defence of the accused that money was thrusted into his pocket by P.W.6 on the date of trap should be accepted as more probable. He also pointed out that there was delay in giving the report to police. It may however be noted that second demand was on 16.3.1995 and therefore giving of complaint on 20.3.1995 i.e. four days later cannot be said to be fatal as it does not, as will be presently seen, affect the merits of

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the case.

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10. On the other hand, Sri R.Ramachandra Reddy, the learned standing counsel and Special Public Prosecutor for ACB repelled both the above contentions. His arguments is that the evidence on record would show acceptance and recovery of bribe amount on the date of trap and it would also show that even after December, 1994 the accused deliberately withheld the bills without sending them to Treasury with the motive of sending them only after he receives the bribe from P.W.6. He also pointed out that the Clerk Mulla Ali Saheb was absent in the office at the time of trap and therefore he escaped.

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11. It is now proposed to first see whether the prosecution version that the accused demanded and received the amount of Rs.500/- i.e. bribe money consisting of five notes of hundred rupee denomination marked as M.O.1(a) from P.W.6 on the date of trap can be accepted as proved having regard to the defence taken by the accused.

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12. The defence of the accused taken in the cross-examination of P.W.6 is that on the date and time of trap i.e. 22.3.1995 in the afternoon P.W.6 has entered his office room when he was talking to some contractors and at that time on enquiry made by P.W.6 he told him that his bills were already sent in December itself and thereupon P.W.6 pretending to convey his thanks shook hand with him and then suddenly thrusted the amount of Rs.500/- in his (accused) shirt pocket and ran out and that immediately the DSP, ACB and the trap party entered his room and they gave a semblance of recovery of the amount and he did not demand any bribe. He took the same defence in his Ex.D3 representation dated 20.4.1995 given to the Director General of Police, ACB,

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Hyderabad and also in his Ex.D.2 representation dated 20.7.1995 given to the Inspector of Police, ACB, Kurnool.

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13. Having regard to the above defence of the accused, the version of P.W.6 that he did enter the office room of the accused on the date of trap in the afternoon and his presence there can be accepted. Now coming to the version of the prosecution and P.W.6, P.W.6 stated in his evidence that when he went into the office room of the accused, the latter was sitting in his chair and as soon as he saw him (P.W.6), the accused asked him about the bribe amount and when he answered that he brought it he asked him to pay the bribe amount to him and he received it with his right hand and kept the currency notes in his left side shirt pocket and assured him that he would send the bills immediately for getting payments. P.W.1 the accompanying witness who is a Constable corroborated the above version of P.W.6.

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14. The version of P.W.2 the mediator is that after receiving the pre-arranged signal, himself and DSP, ACB and the other mediator went into the office room of the accused and that when the DSP, ACB disclosed his identity to the accused the latter began shivering and subsequently the bribe amount of Rs.500/- was recovered from the accused as he himself produced it taking it out from his left side shirt pocket. The defence of thrusting of money of the accused was suggested to P.Ws.2 and 6 but they denied the same and nothing was elicited from them to probablize the above defence. It may also be noted that the evidence of P.W.2 and also P.W.10 the DSP, ACB would show that sodium carbonate solution test proved positive on the right hand of the accused thus corroborating the version of P.W.6 that the accused received the amount with his right hand and kept it in his shirt pocket and that

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shirt pocket also proved positive for the above test.

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15. It should be noted that according to the suggestions made by the defence counsel to P.W.6, three contractors by name Shyamsunder Reddy, Krishna and Pratap were present and talking to the accused when P.W.6 came to his office and his staff members and also Attenders were present. The accused did not examine the said contractors or any of the staff members. He however examined D.W.1 D.Gopal an Attender who supported the defence of the accused. It should be noted that if D.W.1 was really present and witnessed what has happened as pleaded by the accused in his defence, he would have mentioned his name as a witness in his Ex.D.3 representation sent to the Additional DGP, ACB or in his Ex.D.2 representation which he gave to the Inspector of Police, ACB. No suggestions were also made to P.Ws.2, 6 and also the DSP, ACB specifically telling them that D.W.1 was a witness and what they were speaking is falsehood.

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16. It may also be noted that the version of P.W.6 regarding demand and taking of the amount by the accused is quite convincing and there is nothing unnatural in it and the recovery of the bribe amount as spoken to by P.Ws.2 and 10 can also be said to be convincing. The above circumstances would show that the accused must have subsequently and conveniently found out a witness i.e. D.W.1 D.Gopal to support his version and examined him. Thus, as held by the trial court, the prosecution version on the aspect that the accused demanded and received the bribe of Rs.500/- on the date of trap from P.W.6 can be accepted as proved.

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17. It has now to be seen whether the prosecution is able to establish the prior demand as pleaded by P.W.1 which is the other

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requirement. This prior demand is said to have been made first on 04.03.1995 and secondly on 16.03.1995 by the accused for passing the two aforesaid bills of P.W.6. It is true that P.W.6 himself in his evidence stated that his enquiry revealed that the office of Deputy Executive Engineer, Kodumuru, to which he was attached while in service has sent his bills on 10.10.1994 itself for sanction to the office of the accused at Adoni. P.W.3 A.Sudhakar the then senior assistant in the office of the Deputy Executive Engineer, Kodumuru sub-division, in his evidence stated that both the bills of P.W.6 were sent to the office of the accused on 17.11.1994. Ex.P.2 is the bill for Rs.10,252/- for incremental arrears and Ex.P.3 is the earned leave difference arrears bill. Then P.W.4 P.Venkateswarlu was the then junior assistant in the office of the accused and he stated that the bills were received in his office by 09.12.1994 and the accused also approved the said bills on 13.12.1994.

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18. Here it should be noted that according to P.W.4 the bills were to be further signed by the Executive Engineer of the Thungabhadra project division office at Adoni for being sent to treasury. The evidence of P.W.7 Nagasubbaiah office superintendent of the Executive Engineer in Thungabhadra project Division, Adoni, would show that the Executive Engineer ultimately signed on the bills on 12.03.1995. His evidence would also show that at that time the Executive Engineer was also holding full additional charge of the post of Superintendent Engineer and he used to sit in his office at Kurnool and visit the Executive Engineer’s office at Adoni twice in a month and during his visits in March 1995 he signed the bills and that is how the delay occurred.

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19. The above evidence would no doubt thus show that on the date of the alleged first demand i.e. 04.03.1995, the accused already cleared the bills in December 1994 and they were pending for signatures of the Executive Engineer. The contention of Sri Bali Reddy is since the accused has already cleared the bills by December 1994 the version of P.W.1 that he demanded the bribe for passing the bills on 04.03.1995 and on 16.03.1995 should be rejected as unbelievable or improbable as there was no need for him to demand a bribe for something or for some act which he has already done nearly three months prior to the date of first demand.

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Of-course this contention raised on behalf of the accused sounds forceful but only apparently as will be presently seen.

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20. Ex.P.4 is the pay and accounts office register of the Executive Engineer’s office at Adoni division where the accused was working and every bill which is to be sent to the treasury for encashment will be entered in the register and this is clear from the evidence of P.W.4 the junior assistant of the said office. His version shows that Ex.P.3 bill for Rs.2940/- and Ex.P.2 bill for Rs.10,252/- of P.W.6 were entered in the said register with serial numbers 1526 and 1532 respectively on 13.03.1995 i.e. on the date on which Executive Engineer signed those bills. Not only these two bills but nearly 18 other bills which relate to payment to be made to other employees were also entered in the said register with various serial numbers and this is evident from the said register itself.

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21. It will be further found from the evidence of P.W.4 that whenever a bill is sent to PAO and it is passed there the said bill will be rounded off and if the bill is returned with any objections the

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said objections will also be noted in the said register and column-6 of the said register shows that it is meant for recording objections and the other columns would show that action taken on those objections should be recorded and bills would be again sent to the PAO. The special public prosecutor appearing for the ACB pointed out the above circumstance and argued that the above register itself shows that the accused and the other clerk Mulla Saheb have deliberately withheld all the bills and did not send especially the bills of P.W.6 to the PAO expecting payment of bribe by P.W.6 to the accused and the accused received it on 22.03.1995 as is clear from the evidence relating to post-trap proceedings.

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22. Of-course there is one small defect in the prosecution case here and that is this. It did not lead any evidence to show that after the bills of P.W.6 were cleared or any other bill is cleared by the Executive Engineer who is said to be the competent authority, the bill or bills will again come back to the accused and they should be sent to the treasury or PAO on the instructions of accused.

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23. It may however be noted that the accused at the relevant time was the divisional accounts officer in the office of the executive engineer and his position may show that he is in-charge of all the accounts and payments and in fact the procedure shows that after the bills are sent to the office of the executive engineer he has to give the final approval after checking the same before they are signed by the Executive Engineer. This will show that he was having control over the bills and their despatch to the PAO office. The evidence of P.W.8 is that he was the despatch clerk at that time in the office of the accused and he did not receive the bills of P.W.6 for being despatched to the PAO’s office and he

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gave that evidence by looking at the entries in Ex.P.10 despatch register and Ex.P.11 local tapal delivery book of his office. It is brought to my notice that the local tapal delivery book is maintained for delivering correspondence/ bills to local offices at the place where the office of the Executive Engineer is situated as it does not require any postage.

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24. Now as already seen, the evidence relating to trap proceedings would show that the accused has demanded and received the amount of Rs.500/- from P.W.6 on the date of trap i.e. 22.03.1995 and it was recovered from the accused as spoken to by P.W.2 the mediator and P.W.10 the DSP. The fact that the bills were entered in the concerned register on 13.03.1995 and were not despatched to the PAO’s office till 22.03.1995 would show that the accused did have a say as the divisional accounts office in the matter of despatch of the bills to the PAO’s office. The factum of recovery of bribe money from the accused and the above circumstances are enough to apply the presumption under Section 20(1) of the Act and it operates against the accused. He is not able to rebut this presumption. The evidence relating to post-trap proceedings, as already mentioned, would show that the accused demanded and received the bribe amount on 22.03.1995.

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25. In view of the above circumstances it can be said that though the accused cleared the bills in December 1994 itself still he retained control over the despatch of the bills to the treasury and the bills of P.W.6 were not sent to the treasury till 22.03.1995 even though they were entered in the concerned treasury register on 13.03.1995 and these aspects would show that the version of P.W.6 that the accused demanded the bribe on 04.03.1995 and 16.03.1995, can be accepted as truthful. Section 7 of the Act

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covers a demand for bribe for any official act already done also and in this case the evidence shows that the accused demanded and received the bribe for having earlier cleared the bills and to do further acts for doing the favour of getting the bills encashed. Therefore the fact that the accused already signed the bills in December 1994 for being sent to the Executive Engineer cannot help him. The evidence would thus show that the accused did demand the bribe from P.W.6 and it was subsequently recovered from the accused after he received it on the date of trap. This is enough to establish both the charges against the accused.

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26. In B.Noha v. State of Keral a^[1] , relied upon by Sri Ramachandra Reddy the learned Special Public Prosecutor appearing for the ACB, in a case relating to charges under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act relating to demand and receipt of illegal gratification, it has been held by the Supreme Court that when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive for the bribe amount. In the above circumstances the principle laid down in this decision also fortifies the case of the prosecution.

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27. Thus for the aforesaid reasons it follows that the prosecution is able to establish its case on both the charges beyond all reasonable doubt. Here it should be mentioned that Section 13(1) (d) consists of three clauses. In my opinion in the circumstances of this case demanding and receiving bribe amounts to obtaining money or pecuniary advantage by corrupt or illegal means and would fall under Section 13(1)(d)(i) of the Act. Accordingly the conviction recorded by the trial court for the charge under Section

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7 is confirmed and regarding the second charge it is made clear that the accused has to be convicted for the offence under Section 13(1)(d)(i) read with Section 13(2) of the Act and that is also accordingly modified and the accused is also convicted of the same.

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28. Regarding the sentences, without prejudice to his rights, leniency was pleaded on behalf of the accused on the ground that he was aged about 51 years in 1996 and he is now more than 66 years old. It may however be noted that under Section 13(2) read with 13(1)(d) of the Act, the minimum sentence of imprisonment is one year and this was imposed by the trial court. Thus the sentence of imprisonment cannot be reduced as both are directed to run concurrently by the trial court itself. The fine amounts imposed by the trial court are also reasonable. Accordingly, it follows that this appeal must fail in toto and it is dismissed confirming the judgment of trial court in all respects.

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29. As the appellant is stated to be on bail he shall surrender before the trial court within 15 days from today to serve out the sentences failing which the trial court shall take necessary steps to commit the appellant to prison for executing the sentences.

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______________________ N.RAVI SHANKAR, J

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3^rd January, 2012 Tjmr/Cvrk

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRIMINAL APPEAL NO.2609 OF 2004

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DATE: 03.01.2012

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Tjmr/Cvrk

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[1] (2005) 12 SCC 277

B. Subba Rao, v. State of a.P., rep. by Inspector of Police

Case brief

What is this about?

What did the court decide?

B. Subba Rao, v. State of a.P., rep. by Inspector of Police

Case brief

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What the court decided

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