Dismissed

Dr. M.E.a.Askari, v. The State of Andhra Pradesh, rep.by its Public Prosecutor

Telangana HC2 Jan 2013CRLA/1495/2005

Case brief

AI extract

What is this about?

In Criminal Appeal No. 1495 of 2005, the High Court of Andhra Pradesh disposed of an appeal by a Drug Inspector convicted under the Prevention of Corruption Act for taking a bribe. The Court upheld the conviction and sentence, finding that prosecution witnesses reliably established the voluntary acceptance of money and the appellant failed to rebut the statutory presumption.

What did the court decide?

Conviction and sentence passed by the trial Court were confirmed, and the criminal appeal was dismissed.

Dr. M.E.a.Askari, Vs The State of Andhra Pradesh, rep.by its… — Corruption | Telangana HC (2013)

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IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY THE SECOND DAY OF JANUARY TWO THOUSAND AND THIRTEEN

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PRESENT

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HONOURABLE SRI JUSTICE R.KANTHA RAO

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CRIMINAL APPEAL No. 1495 of 2005

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DATE: 02.01.2013

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Between:

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Dr. M.E.A.Askari, S/o.M.M.A.Askari, 52 years, Drug Inspector I.M. & H, M.J.Road, Hyderabad, R/o.H.No.18-8-208/1/A.R.Nagar, Hyderabad.

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… Appellant/Accused And State of A.P., A.C.B. rep. By its Special Public Prosecutor.

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… Respondent/Complainant Counsel for the Appellant : Sri K.Surender Counsel for the Respondent : Sri R.Ramachandra Reddy S.C. for ACB & CBI Cases

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The Court made the following: [JUDGMENT FOLLOWS]

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HONOURABLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No. 1495 of 2005

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JUDGMENT:

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This criminal appeal is filed against the Judgment dated 26.09.2005 passed by the Principal Special Judge for S.P.E. & A.C.B.Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad in C.C.No.17 of 1995 whereby and whereunder the appellant/sole-accused was convicted for the offences under Section 7 of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and Section 13(1)(d) punishable under Section 13(2) of the Act and consequently sentenced to undergo imprisonment for one year and also to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for three months for the offence under Section 7 of the Act and also sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- and in default to undergo simple imprisonment for six months for the offence under Section 13(2) of the Act with a direction that both the sentences of imprisonment shall run concurrently.

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2. Heard Sri K. Surender, the learned counsel appearing for the appellant and Sri R. Ramachandra Reddy, the learned Standing Counsel for A.C.B.

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3. The brief facts of the case are as follows:

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P.W.1 H.A.Majid and his brother D.W.1 H.A.Wajeed with a view to commence business of manufacture and sale of Unani, viz., pain balm, tooth powder in the name and style of M/s. Unani Medicines Cottage Industries, entered into a partnership firm in the year 1994 and they made an application jointly to the Commissioner, Indian Medicine and Homeopathy Drugs (Unani), Hyderabad, wherein the appellant-Dr.M.E.A.Askari was working as a Drug Inspector (Unani). Though both P.W.1 and D.W.1 applied for grant of licence, licence was ultimately granted in the name of D.W.1 who is no other than the brother of P.W.1. Thus, the licence was granted contrary to the intention of P.W.1 and as it was not in accordance with the joint application made by him and his brother D.W.1, he sent an application dated 07.06.1994 to the Commissioner, Licencing Authority, Indian Medicine and Homeopathy, Hyderabad requesting him to furnish particulars of the licence, if any, issued to his brother H.A.Majid, but P.W.1 could not get any reply. Thereafter he personally visited Hyderabad on

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28.06.1994 and approached the appellant Dr.M.E.A.Askari who was the Drug Inspector and enquired about the application dated 07.06.1994 sent by him requiring the particulars of the licence issued in the name of his brother. In connection with the application of P.W.1 for the purpose of furnishing details of the licence, the appellant demanded an amount of Rs.1,000/- from P.W.1 as bribe. P.W.1 who was not willing to pay the bribe approached the A.C.B. on 04.07.1994 and made a complaint against the accused in writing. On receiving the said complaint, the D.S.P., A.C.B. (P.W.8) made discrete enquiries and thereafter registered a case in Cr.No.18/ACB-Cr/1994 under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 against the appellant, he took up investigation and during the course of investigation, he laid trap against the appellant on the same day at about 4-50 p.m. The trap party consisting of the staff members of P.W.1, P.W.2 brother of P.W.1, mediators and staff members of A.C.B. According to the prosecution, in the course of the said trap, the appellant received an amount of Rs.1,000/- from P.W.1 in Shezan Hotel, M.J.Road, Hyderabad, which is situate near the office of the Commissioner, Indian Medicine and Homeopathy, Hyderabad and kept the amount in his coat pocket. After receiving the pre-arranged signal from P.W.2, the accompanying witness,

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the raiding party, who were present in the hotel surrounded the appellant, thereafter chemical test conducted on the fingers of his hands, right palm, gave positive result and the tainted amount of Rs.1,000/- was recovered from him in the presence of the mediators.

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4. On the aforesaid allegations, the appellant was tried by the learned Principal Special Judge for S.P.E. & A.C.B.Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad for the charges under Sections 7, 13(1)(d) r/w 13(2) of the Act. To substantiate the said charges, the prosecution before the trial Court examined P.Ws.1 to 10 and marked Exs.P.1 to P.15 and M.Os.1 to 10. The appellant did not propose to examine any defence witnesses nor did he mark any documents.

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5. P.W.1-the de facto complainant, P.W.2-accompanying witness, P.W.7-mediator supported the prosecution version. The trial Court upon considering the entire evidence on record, convicted the appellant for the offences under Sections 7, 13(1)(d) r/w 13(2) of the Act and sentenced him as mentioned above.

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6. Now the point for determination in this appeal is, whether there are any valid grounds to interfere with the conviction and sentence passed by the learned trial Court ?

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7. Firstly, the learned counsel appearing for the appellant

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submitted that it is the version of the prosecution that before granting licence in favour of D.W.1, the appellant who was the Drug Inspector was deputed to inspect the business premises and sent his report, but it was not alleged against him that he ever demanded any amount either from P.W.1 or D.W.1, and therefore, the theory put forth by the prosecution that he demanded an amount of Rs.1,000/- from P.W.1 for the purpose of only furnishing the particulars of the licence cannot be accepted.

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8. As to this, I would like to state that the prosecution is silent on the aspect as to whether the appellant demanded any bribe for the purpose of making a favourable report either for P.W.1 or D.W.1. Ultimately the licence was granted in the name of D.W.1. It is not known whether D.W.1 paid any amount as illegal gratification to the appellant. The theory put forth by the prosecution that the appellant demanded illegal gratification for furnishing the licence particulars to P.W.1 cannot be entirely thrown out.

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9. Another contention urged by the learned counsel for the appellant is that the A.C.B. requisitioned the mediators from the Office of Indian Medicine and Homeopathy and subsequently on the ground that trap was going to be laid against the appellant,

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informed the Indian Medicine and Homeopathy Office that no mediators from their office were required, further the trap was laid within three hours after registering the case in haste and the D.S.P., A.C.B., who is the trap laying officer had no clear vision about the allegations leveled in the report lodged by P.W.1 and no credence can be given to the entire trap which was allegedly laid by D.S.P., A.C.B. (P.W.8).

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10. It is further contended by the learned counsel appearing for the appellant that the evidence of P.W.1 on the aspect as to where actually the appellant demanded bribe from him as on the date of trap is at variance. P.W.1 at one time states that the appellant demanded bribe amount from him in the office itself, but received the same in the hotel and later he states that the appellant did not demand the bribe in the office, but only demanded and accepted the bribe in the hotel, the raiding party was very much sitting in the same hotel in the nearby table where P.Ws.1 & 2 and the appellant were sitting, and as discussed from the evidence on record, there was lot of resistance from the people present in the hotel in the manner in which the appellant was involved in trap case and therefore according to the learned counsel appearing for the appellant, the circumstances clearly

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probabilise the contention of the appellant that he never demanded or accepted any bribe from P.W.1, but P.W.1 thrusted the amount into pocket of the appellant as contended by the appellant.

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11. In support of his contention, he relied on V.Venkata

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Subbarao Vs. State^[1] , wherein the Supreme Court had with reference to the facts of the case before the Supreme Court as

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follows:-

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"According to P.W.2, he had attended his office on 12.12.1988 at 2-30 p.m., but the documentary evidence brought on records established that he met the Inspector at 12-30 p.m. According to P.W.6, it takes at least 2 to 3 hours to commence pre-trap proceedings, but in this case, it was arranged within 40 minutes. The trap party proceeded in an official car. Eight persons traveled in the same car. Why so many persons traveled in one car, is not explained. Why so many persons had to travel together is also beyond our comprehension. A trap proceeding envisages secrecy and not a wide publicity. It reached Chodavaram at about 6-10 p.m. P.W.2, admittedly, was not traveling with them. He was taken to the spot by the said Shri Ram Murthy.

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P.W.2 did not know D.W.1 at all. It was D.W.1 who not only led the raiding party to the house of the appellant, he pressed the call bell also. Why services of an unknown person, who was not known to P.W.2, were taken, remained to be explained. Even the circumstances in which his services had to be obtained were not disclosed."

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12. There is also no substance in the contention urged by the

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learned counsel appearing for the appellant, P.Ws.1 and 2 have stated in their depositions in the first instance that they went to the office of the appellant and then all of them proceeded to Shezan Hotel, situate nearby, thereafter went to P.W.1 and asked about the

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particulars of the licence, the appellant demanded and asked to pay bribe amount, then in the hotel, P.W.1 gave the bribe amount to the appellant, the appellant received the same and kept it in the coat pocket, thus as per the arrangement of the D.S.P., A.C.B., P.Ws.1 & 2 were asked to go to the office of the appellant. Only at the instance of the appellant, P.Ws.1 & 2 came along with him to the hotel and in the hotel the appellant asked for the bribe amount and received the same from P.W.1. From the circumstances, therefore it cannot be said that the appellant received the bribe amount in a public place and the trap was conducted against the appellant in a public place. The judgment rendered by the Supreme Court cited above relates to different fact situation and therefore it is not applicable to the facts of the present case.

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13. Further, the prosecution case has made out a case that the appellant demanded bribe amount, and on account of the said minor discrepancies the evidence of P.Ws.1 & 2 cannot be rejected in toto.

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14. Another contention urged by the learned counsel appearing for the appellant is that initially A.C.B. requisitioned the mediators from the Office of Indian Medicine and Homeopathy, Hyderabad and later informed that no mediators from the office are

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required on the ground that the trap was to be laid against the appellant and the manner in which the A.C.B. acted indicates that they acted in haste without any clear vision as to how and against whom the trap was to be laid. As to the said contention, it may be stated that A.C.B. Office is near to the office of the appellant where he was working and in usual course the A.C.B. requisitioned the mediators from the office of Indian Medicine and Homeopathy, Hyderabad, where the appellant was working and subsequently after going into the details of the trap, and on coming to know that it was to be laid against the appellant, they informed that no mediators from their office were required. Merely because mediators were originally requisitioned from the office of Indian Medicine and Homeopathy, Hyderabad, it cannot be said that the trap was laid in haste without knowing any details about the trap.

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15. The learned counsel appearing for the appellant relying

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on the judgment in C.M.Girish Babu Vs. C.B.I., Cochin, High Court of Kerala^[2] , wherein it was held that the burden of proof on accused under Section 20 of the Act is not the same as burden placed on the prosecution to prove the same beyond reasonable doubt and that the accused can rebut the presumption raised against him under Section 20 of the Act either by adducing positive

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evidence or through answers elicited from the cross-examination of the prosecution witnesses, contended that in the instant case from the material inconsistencies and discrepancies pointed out by the accused, it can be said that the presumption raised against him is rebutted, and in the instant case, as held by the Supreme Court in the case cited above, mere recovery of tainted amount under the circumstances, in which he was placed is not sufficient to convict the accused when the substantive evidence in the case is not reliable. He would further argue that merely because the prosecution proved that the tainted amount was recovered form the appellant in the present case, it cannot be said that it succeeded in proving that the appellant voluntarily accepted the money knowing it to be the bribe.

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16. If we examine the facts and circumstances of the present case and also the evidence of the witnesses, it is the version of P.W.1 that when he approached the appellant for the particulars of the licence issued to D.W.1, he initially demanded the bribe and reiterated the said demand on the date of trap. His version and that of the version of P.W.2, who is the shadow witness is to the effect that on the said date in Shezan Hotel, the appellant demanded an amount of Rs.1,000/- from P.W.1 and received the same in the said hotel and was subsequently caught by the raiding

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party headed by P.W.8 D.S.P. of A.C.B. The evidence of P.Ws.1 & 2 is of highly reliable character and from their evidence it is not possible to take a different view toi the effect that the prosecution failed to prove that acceptance of money by appellant is towards bribe and it was accepted voluntarily. From the evidence of P.Ws.1 & 2 the prosecution could be able to clearly establish that the appellant on the date of trap, asked for the bribe amount and received the same voluntarily, in which event, the learned trial Court is perfectly justified in drawing a presumption under Section 20 of the Act against the appellant.

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17. In the instant case, the appellant failed to displace the said presumption either by adducing positive evidence or by showing the circumstances in his favour. It was contended on behalf of the appellant that the evidence on record reveal that from the way in which the appellant was trapped, there was lot of anger from the persons who were in Shezan hotel and they revolted against the A.C.B. If that is so, it could have been appropriate on the part of the appellant to examine any one of defence witnesses to establish the defence theory that the amount was thrusted by P.W.1 into the pocket of the appellant in the hotel. If really the amount was thrusted into the pocket of the appellant by P.W.1 and

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was witnessed by several individuals, certainly, some of them could have supported the cause of the appellant and the appellant could have examined them on his behalf before the trial Court to justify the said fact. Though it was not obligatory on the part of the appellant to prove his defence by positive evidence, in the peculiar circumstances of the present case, it could have been appropriate for him to examine some of the persons present in the hotel to prove the fact that the money was thrusted into his pocket by P.W.1. The defence theory of thrusting the amount by P.W.1 into the pocket of the appellant was not spoken to by any of the witnesses or it was not elicited in the course of cross-examination of any of the witnesses examined by the prosecution. Therefore, there was no evidence before the trial Court probabilising the theory of thrusting of the amount into the pocket of the appellant by P.W.1. Thus, in this case, the appellant failed to prove his defence even by the standard of preponderance of probabilities and the judgments relied on by the learned counsel appearing for the appellant are not applicable to the facts of the present case, since they were rendered with reference to the fact situation which was altogether different.

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18. For what all stated hereinabove, I am of the considered view that the learned trial Court on a proper appreciation of the

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evidence on record rightly drew a presumption envisaged under Section 20 of the Act against the appellant and the appellant failed to rebut the same either by adducing positive evidence by showing any circumstances in his favour. The inconsistencies and discrepancies pointed out by the learned counsel for the appellant are minor and they being inconsequential, it cannot be said that the substratum of the prosecution version, which was unfolded by its witnesses, has been shaken to any extent. Thus, I see absolutely no valid grounds to interfere with the order of the conviction and sentence passed by the learned trial Court against the appellant.

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19. Consequently, the conviction and sentence passed by the trial Court against the appellant are confirmed. The appeal is dismissed.

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_______________________ JUSTICE R. KANTHA RAO,

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02/01/2013 Siva/I s L

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HONOURABLE SRI JUSTICE R.KANTHA RAO

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CRIMINAL APPEAL No. 1495 of 2005

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DATE: 02.01.2013