Allowed

Addala Subrahmanyam, v. The State of A.P.

Telangana HC19 Feb 2013CRLA/1857/2005

Case brief

AI extract

What is this about?

The Supreme Court allowed the appeal and acquitted the appellant of corruption charges. The Court held that the appellant, as a tax collector, lacked the authority to fix property tax, making the alleged bribe demand improbable. The Court found the defence version supported by independent witnesses sufficient to rebut the presumption under the Prevention of Corruption Act.

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellant acquitted; fine, if paid, ordered to be refunded.

Addala Subrahmanyam, Vs The State of A.P. — Corruption | Telangana HC (2013)

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

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+ CRIMINAL APPEAL No.1857 of 2005

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%19.02.2013

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# Addala Subrahmanyam

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….Appellant-accused

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Vs.

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$ State: rep.by Inspector of Police, ACB, Visakhapatnam

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Complainant

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! Counsel for the Appellant: Sri C.Praveen Kumar

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Counsel for Respondent: Sri Ghaniamusa, Special PP for CBI

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<Gist :

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>Head Note:

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? Cases referred:

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1. (2002)9 SUPREME COURT CASES 530

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CRIMINAL APPEAL No.1857 of 2005

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JUDGMENT:

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This appeal is filed by the sole accused in C.C.No.13 of 1999 against the judgment dated 28.11.2005 passed by the III Additional Sessions Judge – cum – Special Judge for

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A.C.B.Cases, Visakhapatnam, whereby and where under the appellant was convicted for the offence under Section 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo SI for one year and to pay a fine of Rs.1000/- in default, SI for one month for the charge under Section 7 of Prevention of Corruption Act, 1988 and also sentenced to undergo SI for two years and to pay a fine of Rs.2000/- in default, SI for one month for the charge under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act.

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The brief facts which are necessary for disposal of the criminal appeal are as follows:

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The appellant at relevant time was working as Tax Collector of 7^th ward, Municipal Corporation, Visakhapatnam. He is a public servant within the meaning of Section 2(c) of Prevention of Corruption Act, 1988 (in short ‘the Act’). One Smt.Simhachalam, an employee in Tele Communication Department purchased a house and got it remodeled. The house was situated in Chengalaraopeta, Visakhapatnam, for which area the appellant was the tax collector. The prosecution case is that after the house was remodeled, it was subjected to fresh assessment of property tax and for getting a lesser tax levied, the appellant demanded bribe of Rs.2000/- from L.W.6 Smt.Simhachalam. It is alleged that when L.W.6 Simhachalam expressed her inability to pay the bribe amount, the appellant threw away the tax pass book and other

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papers at her face. She informed the said incident to P.W.2 who is no other than her younger sister’s son and requested him to approach the appellant and see that the appropriate tax would be fixed. When P.W.2, who was a labourer in Visakhapatnam Municipal Corporation approached the appellant and requested him on behalf of L.W.6 for fixation of proper tax, it is said that the appellant reduced the demand from Rs.2000/- to Rs.1500/- and insisted upon payment of the said bribe amount. It was further alleged that the appellant made it clear to P.W.2 that if the amount of Rs.1500/- was not paid, the tax would be increased. The demand was allegedly made by the appellant for the first time on 20.02.1998.

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On 03.03.1998 at about 3.00 p.m. P.W.2 approached the Deputy Superintendent of ACB and submitted a written complaint Ex.P8 to him. On the strength of the said complaint, a case in Crime No.6/RC-WLR/98 was registered and the investigation was commenced. In the course of investigation, a trap was laid on 04.03.1998 against the appellant. On the said date, it was alleged that when P.W.2 approached the appellant, he ascertained from him whether he had brought the bribe amount and received the same from him and kept it in the table drawer at his office and thereafter on receiving the prearranged signal relayed by P.W.2, the raiding party trapped the appellant. The phenolphthalein test conducted on the fingers of both hands of the appellant, yielded

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positive result and the amount of Rs.1500/- was recovered from the table drawer of the appellant in his office when he produced the same by picking out from the table drawer.

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The defence version is that on the date of trap when P.W.2 came to the seat of the appellant, 3 or 4 persons including D.Ws.1 and 3 were present, P.W.2 kept the money and papers on the table of the appellant, thereafter the members of the raiding party came in. According to the appellant, the ACB by making use of P.W.2 got him falsely involved in this case.

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Basing on the aforesaid allegations, the learned Special Judge for ACB cases framed the charges under Sections 7 and 13(1)(d) read with 13(2) of the Act against the appellant and tried the appellant for the said charges.

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The prosecution in order to substantiate the charges framed against the appellant, examined P.Ws.1 to 4 and marked Exs.P1 to P14 and P14(a). On the other hand, the appellant examined D.Ws.1 and 2 on his behalf and marked M.Os.1 to 7.

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L.W.6 Simhachalam could not be examined by the prosecution as she died prior to the commencement of the trial. However, she was alive on the date of trap. In the instant case, for acceptance and demand of bribe by the appellant, the evidence available is only that of P.W.2, who is sister’s son of L.W.6 Simhachalam. However, he deposed before the trial Court that on the date of trap, the appellant received from him the tainted

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amount of Rs.1500/- with right hand, counted the currency notes with both hands and kept them in the table drawer. He had also spoken to the fact of the appellant demanding bribe from him.

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P.W.3 was a Labour Officer in the office of Assistant Commissioner of Labour, Circle - II, Visakhapatnam. He was taken as one of the mediators by the Deputy Superintendent of Police, ACB, Visakhapatnam. P.W.1 stated in his evidence that on receiving the prearranged signal, he along with the other raiding party members entered into the office of the appellant, the DSP, ACB disclosed his identity to the appellant, the appellant was astonished and became speechless and he started rubbing his hands to the table. P.W.3 further deposed that the phenolphthalein test conducted on the appellant gave positive result and the tainted amount of Rs.1500/- was recovered from the appellant when he produced the said amount by taking it from the table drawer. P.W.4, Deputy Superintendent of Police, A.C.B., Visakhapatnam also gave the same version as that of P.W.3.

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According to the appellant, P.W.2 came to his office on the date of trap, kept the money and some papers on his table and went away, while he was talking to 4 or 5 persons. Even according to the appellant, he kept the papers and the money in his table drawer as they were placed by P.W.2 on the table of the appellant without informing him anything. Among the four or five persons who were already present when P.W.2 entered the office of the appellant, D.Ws.1 and 2 were there. Even according to the

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prosecution, they were there when P.W.2 entered the office of the appellant and post-trap proceedings took place subsequent thereto. The said fact has been recited in the post-trap panchanama. D.W.1 was the junior engineer in BSNL, Visakhapatnam. He is an independent witness. D.W.2 is the cobrother of the appellant. Both of them stated in their evidence before the trial Court that on the date of trap while they were talking to the appellant, P.W.2 came to the office of the appellant, kept the money and some papers on the table of the appellant, the appellant kept them in his table drawer, thereafter the raiding party members entered into the office of the appellant and proceeded with the post-trap proceedings. Though the presence of these witnesses was noted in the post trap panchanama, the prosecution for the reasons best known to it did not examine these two witnesses on its behalf. The appellant examined them as defence witnesses on his behalf.

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By considering the aforesaid evidence, the learned trial Court convicted the appellant for the charges under Sections 7 and 13(2) read with 13(1)(d) of the Act and sentenced him to punishment as mentioned above.

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Now, the point for determination in the present appeal is:

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Whether the order of conviction and sentence passed by the trial Court against the appellant can be sustained?

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The trial Court considering the evidence of P.W.2 regarding

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the demand and acceptance of bribe by the appellant and also the evidence of P.Ws.3 and 4 about the phenolphthalein test giving positive result and recovery of tainted amount from the appellant drew the presumption against the appellant under Section 20 of the Act to the effect that the appellant received the amount of Rs.1500/- as bribe for doing the official favour, namely to get the lesser property tax fixed for the house of L.W.6 Simhachalam.

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It is contended by the learned counsel appearing for the appellant argued that the appellant was not vested with any powers to fix the property tax, his duty was only to convey the information relating to the particulars of the buildings, which are subject to property tax and therefore no official favour was pending with the appellant. Learned counsel further argued that the trial Court totally overlooked the evidence of P.Ws.3 and 4 which was to the effect that on the date of trap P.W.2 placed money and some papers on the table of the appellant and went away and totally placing reliance on the evidence of P.W.2 who is an interested witness convicted the appellant. In support of his contention, learned counsel relied on a decision of the Supreme Court in STATE OF T.N. v. S.KRISHNAMURTH Y^[1] . In the said case, the defence version of the respondent-accused was that he did not accept the amount as a bribe, but he collected the amount as donation for teachers day. The Supreme Court on evidence found that there was a practice prevailing in Taluk office of

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collecting money for certain funds and the said practice being known to P.Ws.1 and 2 in that case. The Supreme Court found that the accused has collected the money for such purpose, and therefore the accused is entitled for benefit of doubt.

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The Supreme Court also noticed in the said case that granting of patta certificate was not the sole responsibility of the respondent and it was a cumulative act of various officials of the Taluk Office and therefore the High Court came to the right conclusion that the demand for an individual bribe by the respondent-accused who was a Special Temporary Assistant in Taluk office cannot be accepted. The Supreme Court also held that the mere fact that the respondent-accused receiving a sum of Rs.300/- would not ipso facto lead to the conclusion that the money in question was received by him as a bribe for showing an official favour.

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Coming to the facts of the present case, L.W.6 Simhachalam was an employee in Tele Communications Department. She did not inform personally the ACB about the appellant demanding money for doing official favour namely imposing lesser property tax to the renovated house. On the other hand, P.W.2 her sister’s son who is a labourer in Visakhapatnam Municipal Corporation lodged a written report with ACB alleging that the appellant was demanding money as bribe from L.W.6 Simhachalam. It is crucial to notice that L.W.6 Simhachalam was very much alive on the alleged date of trap, but the trap was laid

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through P.W.2 by using P.W.2 who is her near relative as an instrument. Though anybody can set criminal law into motion, the way in which the FIR came to be lodged in the instant case seems to be somewhat peculiar. The facts of the present case are identical to the facts of the above referred decision of the Supreme Court relied on by the learned counsel appearing for the appellant. P.W.1 in this case stated in his evidence that the Tax Collector has to collect house tax and other taxes and submit the same to the concerned branch. He has to report information regarding new constructions to the Revenue Inspector and the Revenue Inspector in turn will issue a notice under Section 2(1)(3) of the Hyderabad Municipal Corporation Act. Thus the duty of the appellant was only to report about the new constructions or reconstructions or modifications to the concerned Revenue Inspector and he is not concerned with the levy of property tax as such. Therefore, it is most unlikely for the appellant to demand an amount of Rs.2000/- to see that lesser tax would be fixed. L.W.6 Simhachalam who is an employee in Tele Communications Department must be knowing that the appellant was not concerned with the levying or revising the property tax. Therefore, in this case also the demand for an individual bribe by the appellant is doubtful. Further even according to the prosecution, D.Ws.1 and 2 were present in the office of the appellant when P.W.2 came to his office. Both of them have categorically stated before the trial

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Court that P.W.2 came to the office of the appellant, placed money and some papers on the table and went away. Out of these two witnesses, D.W.1 is an independent witness. It is settled law that the Court has to give equal treatment to the prosecution as well as defence witnesses. D.W.1 who was a Junior Engineer in BSNL, Visakhapatnam, is an independent witness. No motive can be attached to D.W.1 for giving false evidence in favour of the appellant. Therefore, the version of the appellant that P.W.2 came to his office and placed the amount and papers on table is also quite probable and it is supported by D.Ws.1 and 2. When the amount is placed on the table of the appellant directly without informing him anything when he was talking to 4 or 5 persons, the normal course of conduct expected of the appellant would be that he would keep the amount somewhere instead of keeping the same openly on the table. Therefore, thinking that the amount was openly kept on the table, which was most unusual, the appellant might have placed it in his table drawer, which course is also a probable one. In such event, the phenolphthalein test yielding positive result is quiet inconsequential. The mere fact that an amount of Rs.1500/- was recovered from the table drawer of the appellant would not ipso facto lead to the conclusion that the money was received by the appellant for showing official favour. In fact, in this case no official favour was ever pending with the appellant as he was not concerned with levying of property tax. L.W.6 who was an employee in Tele Communications Department

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must be aware of the fact that fixing of lesser property tax was not in the hands of the appellant. In the instant case therefore the appellant by raising a probable defence and establishing the same through D.Ws.1 and 2 could be able to prove his version by the standard of preponderance of probability and dislodged the presumption which was raised by the trial Court against him under Section 20 of the Act. The learned trial Court taking into consideration the entire facts and circumstances and the defence theory which is quite probable, ought to have given benefit of doubt to the appellant instead of convicting him for the afore mentioned charges. The conviction and sentence imposed by the learned trial Court is not based on proper appreciation of material available on record and is liable to be set aside in this appeal. Consequently, the conviction and sentence passed by the trial Court against the appellant is set aside. The fine amount, if any, paid by the appellant shall be refunded to him.

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The appeal is accordingly allowed and the appellant is acquitted of the charges under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

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R. KANTHA RAO, J.

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19-02-2013 Rns Note: L.R.Copy marked.

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[1] (2002) 9 SUPREME COURT CASES 530

Addala Subrahmanyam, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Addala Subrahmanyam, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

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