Dismissed

Sri Md. Shamsad Ali, v. the Insp of Police, Rep by Its Spl Pp Hyd., for Acb.

Telangana HC22 Nov 2021CRLA/177/2008

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a criminal appeal by the legal representative of a deceased Mandal Educational Officer. The court upheld the lower court's conviction under the Prevention of Corruption Act following a trap, finding that the prosecution successfully proved both the demand for and acceptance of a bribe to process retirement files.

What did the court decide?

Criminal Appeal dismissed, confirming the judgment of conviction and sentence of one year rigorous imprisonment and a fine of Rs. 1,500/.

Sri Md. Shamsad Ali, Vs the Insp of Police, Rep by Its Spl Pp… — Corruption | Telangana HC (2021)

¶1

IN THE HIGH COURT FOR THE STATE OF TELANGANA

¶2

AT HYDERABAD

¶3

MONDAY. THE TWENTY SECOND DAY OF NOVEMBER TWO THOUSAND AND TWENTY ONE

¶4

PRESENT

¶5

THE HONOURABLE DT. JUSTICE SHAMEEM AKTHER

¶6

CRIMINAL APPEAL NO:^'177 OF 2008

¶7

Criminal Appeal under Section 374 (2) of Cr.P.C against the Judgment dated 22.01 .2008 in C.C.No. 18 of 2003 on the file of the Court of the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad.

¶8

Between:

¶9

Sri Md. Shamsad Ali, Mandal Educational Officer, Atmakur Mandal, Nalgonda District, L/R Represented by his legal representative, lshrath Unnisa Wo. Late Md.Shamsad Ali, aged 59 years, No.18-12-41818/3, Hafeez Babanagar, Bangdlaguda (Kalsa), Hyderabad.

¶10

(As per the Court Order dated 25.10.2021 in LA.No.1 ol 2021 Legal representative of Accused is brought on record in Crl.A. No.17712008)

¶11

...Accused/Appellant

¶12

AND

¶13

The lnspector of Police, Anti Corruption Bureau, Hyderabad Range, Hyderabad, rep. by its Special Public Prosecutor, For ACB Cases, High Court for the State of Telangana, Hyderabad.

¶14

...COMPLAINANT/Respondent

¶15

Counsel for the Appellant: SRI C. SHARAN REDDY

¶16

Counsel for the Respondent: SRI T. L. NAYAN KUMAR

¶17

(Special P.P. for ACB Cases)

¶18

The Court delivered the following: JUDGMENT

¶19

----a

¶20

HONOURABLE DT. JUSTICE^{SHAMEEMAKTHER}

¶21

CRIM NAL APPEA^{L No.177OF2008}

¶22

JUDG MENT:

¶23

This Criminal Appeal, under^{Section374(2)oF the Code of} Criminai Procedure, 1973^(for short,'Cr.P.C.'),^{is filed by the} appellant/Accused Officer^{(AO) aggrievedby the judgment dated} 22.Ol.2OOB^passed in C.C.No.18 of^{2003 by the learned Additional} Special Judge for SPE &^{ACB Cases, City Civil Court,Hyderabad,} whereby and whereunder, the Court^{below found the AO guiltyfor} the offences under Sections 7^{and f3(1)(d) r/w L3(2) of the} Prevention of Corruption Act,^{19BB (for short "PC Act") and} accordingly, convicted and^{sentenced him to undergoRigorous} Imprisonment for a^period of one(1)^{y!ar.anO also to pay a fine of} |1s.1,500/-, in default to suffer simple^{imprisonment for six} months, under both counts. Both^{the substantivesentencesof} imprisonment were directed to run^{concurrently.}

¶24

During^pendency of the appeal,^{the appellant/AO died on} 17.OB.2O2O. The wife of the^{appellant/AO is brought on recordas} Legal Representative of the^{deceased-appellantvide order dated} 25.10.2021^passed by this Court^{inI.A.No.1of2021in} Crl.A.No.177 of 2008.

¶25

The case of the^prosecution, in^{brief, is that AO was working} as Mandal Educational^{Officer, Atmakur Mandal, Nalgonda District.} The father of PW.1 retired as^{Head Masteron 28.02'2002 and PW.1} was assisting him in^{gettingretirement benefits including Group} Insurance Claim etc,. It^{is alleged that one month prior to Ex.P.1-}

¶26

Dr.SA,l Cr .A. No.l77 or 2008

¶27

¶28

report dated 16.04.2002, when PW.1 approached the AO to^get the signature of AO on the retirement benefits file and send it to local fund office, Nalgonda, the AO alleged to have demanded bribe of Rs.3,000/-. Again on 15.04.2002, when PW.1 telephoned the AO and enquired about the file, AO reiterated his demand and informed PW.l to pay the bribe amount in his office on 18.04.2002. Unwilling to pay the bribe amount, PW.1 lodged Ex,P.1-report dated 16.04.2002 with PW.S-DSP, ACB, Hyderabad Range. Basing on which, a case in Crime No.4/ACB-HR/2002 was registered against the AO and investigated into. During the course of investigation, PW.5 conducted pre-trap^proceedings under Ex.P.4 on 18.04.2002. On 18,04.2002, when PW.1 approached AO in his office room in the office of MPDO, Atmakur, AO asked PW.1 to come out of the room and both went to back side of Engineering room and AO reiterated his earlier demand of bribe of Rs.3,000/and accepted tainted currency money of Rs.3,000/- from PW.1 with his right hand and kept the same in his right hand side^pant pocket. The phenolphthalein test conducted on the right hand fingers of AO and inner linings of right side pant pocket of AO turned positive result and the tainted money of Rs.3,000/- was recovered from his possession. PW.5 conducted post-trap proceedings under Ex.P,7. After completion of investigation and after obtaining Ex.P.B-prosecutlon sanction order, PW.6Investigating Officer, filed charge sheet against AO for the offences under Sections 7 and 13(1)(d) r/w 13(2) of P.C.Act.

¶29

The trial Court took cognizance of the case, and after furnishing copies of documents to the AO and after hearing both

¶30

Dr.SA,J C.l.A.No.177 of 2008

¶31

¶32

the sides, framed charges against the AO for the offences punishable under Sections 7 and 13(1Xd) r/w 13 (2) of the p.C Act. When the charges were read over and explained to the AO, he pleaded not guilty and claimed to be tried.

¶33

In order to prove the guilt of the AO, the prosecution examined P.Ws.1 to 6 and got marked Exs.p.1 to^p. 11 and M.Os.1 to 10, before the trial Court.

¶34

After closure of the prosecution side evidence, the AO was examined under Section 313 Cr.P.C. He denied the incriminating material appearing against him in the evidence of prosecution witnesses and filed written statement. The AO did not choose to examine any witness but got marked Eks.D.1 to D.3 on his behalf..

¶35

The trial Court after considering the entire evidence on record, rde impugned judgment dated 22.07.2008, convicted and sentenced the AO for the offences punishable under Section 7 and 13(1)(d) rlw I3(2) of the P.C. Act as stated supra. Hence the Criminal Appeal by the appellant/AO.

¶36

B) Heard arguments of Sri C.Sharan Reddy, learned counsel for the appellant and Sri T.L.Nayan Kumar, learned Special Public Prosecutor for ACB representing the respondent/State and perused the record.

¶37

The learned counsel for the appellant would contend that the prosecution failed to prove the alleged demand made by the AO. There is inconsistency in the evidence of PW.1 in relation to demand of Rs.3,000/- as bribe. PW.1 did not depose about alleged

¶38

¶39

Dr,SA,J Crl.A.No.177 of 2008

¶40

¶41

demand of bribe by AO, one month prior to Ex. P.l-report dated 16.04.2002. It is also contended that PW.2-colleague of the AO, who sits by the side of AO in the office, has clearly and categorically stated in his evidence that the conversation made between the AO and PW.l-complainant on 18.04.2002 was audible to him and in that conversation there was no demand of bribe, as projected by the prosecution. Unless it is proved that there was a demand, the so-called recovery of tainted money of Rs.3,000/from the possession of AO on 18.04.2002 is not helpful to the case of^prosecution, The^prosecution failed to^prove the^guilt of the AO beyond all reasonable doubt and ultimately,^prayed to allow the appeal by setting aside the conviction and sentence imposed against the AO by the Court below. In support of his submissions, learned counsel for the appellant^/relied upon the following decisions:

¶42

i) N,Vijay Kumar vs, Stafe of Tamil Nadul

¶43

ii) B,Jayaraj vs. Sfa te of Andhra Pradesh2

¶44

On the other hand, learned Special Public Prosecutor^for ACB would contend that PW.1 had categorically deposed that to^process the retirement benefits file of his father, AO demanded bribe^of Rs.3,000/-. PW.2 being friend of the AO, did not support the^case of prosecution. In fact there was a demand of bribe of^Rs.3,000/- by AO to^process the retirement benefits file of the father of^PW.1- complainant. The prosecution has proved the demand and acceptance of bribe by AO. There is ample oral and documentary

¶45

'lzozr;:^{scc esr} '1zota';^{t: scc ss}

¶46

)

¶47

Dr.SA,l Crl.A.No.177 of 2O08

¶48

evidence on record to prove the prosecution case. The Court below having analysed the entire evidence on record, is justified in convicting and sentencing the AO for the offences under sections 7 and 13(1)(d) t/w 13(2) of p.C. Act. There are no merits to allow the appeal and ultimately prayed to dismiss the same.

¶49

In view of the submissions made by both sides, the points that arise for determination in this appeal are:

¶50

Whether there was demand and acceptance of bribe 9f^{Rs,-3,ooo/-by Ao toprocess} ihe^retirement benefits file of the father of pW.7_complaiiantZ

¶51

Whether the evidence of pW,7 and other wr-tnesses is cogent and convincing to prove tne giit of tne AO beyond all reasonabie aoiOtz

¶52

3, Whether the conviction and ,entence recorded by the -Court below against th; AO for tii-offences under Sections Z and t3(t)(d) r/w 13(2) of pC Act, is liable to be set aside?

¶53

POI NTS:

¶54

As seen from the material placed on record, the evidence of PW.1-T.Yugandhar Reddy/complainant, is that his father_ It4r.T.Narasimha Reddy, retired as Head Master in primary School at Chada, on 28.02.2002 and he was bedridden due to paralysis. Since all the retirement benefits of his father including Group Insurance Claim were pending, pW.1 went to the Mandal Educational Office, Atmakur Mandal, Nalgonda District, in the year 2002 and approached AO, who was Mandal Educational Officer, at .that^{pointof time and handedover} the Group Insurance craim Fire of his father and requested to sign on it and then forward the same to Local Fund Office, Z.p. Office, Nalgonda. pW.1 also deposed that on 16.04.2002 when he contacted AO over phone, AO demanded

¶55

i''

¶56

Or.SA,J Crl.A.No.177^{of 2008}

¶57

¶58

the bribe of^{Rs.3,0OO/-and asked PW'1 to come to his office on} 18.04.2002 and^{pay the said amount'Unwilling to pay the bribe} amount,^{PW.1 lodged Ex'P.1-reportdated 16'04'2002with PW'5-} DSP, ACB,^{Hyderabad Range. PW'1also deposed about conducting} of Ex.P.4-pre-trap^{proceedingsby PW'5on lB'04'2002 at 9'00AM} in the^{presence of mediators and thereafter,proceeding to the} office of AO^{on the sameday at 12 30PM and the AO wasnot in his} seat. After sometime,^{AO cameto the officeand PW'1 asked him} about his^{father's file, for which,AO took the file from PW'2 and} signed on it^{and demanded the bribe amount of Rs'3'000/- from} PW.1. When PW.l^{expressed his inability,AO statedthat unlessthe} bribe amount^{is paid, the file would not be processed'Thereafter'} AO took PW.1^{to the next room and receivedthe bribe amount with} his right hand^{and kept the same in his Fight side pant pocket' On} the^{pre-arranged signal givenby PW'1, PW'5 and other trap party} membersrushedintotheofficeofAoandrecoveredtaintedmoney i.e, Rs.3,000 l'from^{the right side pant pocketof the AO' When} the right hand^{fingers, right side pant pocket and handkerchief of} the AO were^{subjected to Phenolphthaleintest' they yielded} positive result.

¶59

PW.2-Mohd. laffar^{Uddin, who was working as Junior} Assistant in the^{office of AO duringthe year 2002, deposedthat his} seatislocatedbesidetheseatofAo.PW.2didnotcorroboratethe evidence of PW.1. PW'z^{stated that the conversation made in} between the AO^{and PW.1was audible to him and there was no} demand of money. It^{may be noted that PW'l is the personwho} contactedtheAotoprocesstheretirementbenefitsfileofhis

¶60

Dr.5A,J Cd.A.No.r77 of 2008

¶61

¶62

father. PW.1 clearly and categorically stated that on t5.04.2002, when he contacted AO over^phone, AO demanded him to^pay bribe of Rs.3,000/- and AO also stated the date of^payment of bribe. Accordingly, the bribe amount was paid to AO by PW.1. It appears that PW.2 being colleague of the AO, did not support the prosecution case. From the evidence of PW.1, Ex. D.1-contradictory portion of statement of PW.1 recorded under Section 161 Cr.P.C, is marked. It relates to omission of PW.1 in his evidence, about^the demand of bribe of Rs.3,000/- by AO one^{month prior} to^{the date} of trap. Here, it is^pertinent to state that PW.1^{was examinedafter} lapse of four years From the date of trap, so he might^have forgotten the same. It is also^pertinent to state that after^{the trap} when AO was^questioned with regard to [h"^porr".rion of tainted money, he stated that PW.1 voluntarily^gave him and^{there was no} demand from his side. No^person will^give the^{money without} there being any demand. When there is clear^{evidenceoF PW.l} with regard to demand and acceptance of bribe, the explanation given by AO is unsustainable. Furthermore, there is no reason for PW.1 to go to PW.5 and complain against^{AO in relation to demand} made by AO and help the officers^{concernedto lay a trap. It is} also relevant to state that there^{is evidence of PW'3-mediator to} substantiate that during^{pre-trap proceedings, he perusedthe} contents of Ex.P.3-complaint^{given by PW.1, wherein PW.1stated} that AO demanded bribe of^{Rs.3,000/-to process the file relating} to retirements benefits of father of^{PW.1.Therefore,merely} because PW.1 failed to depose^{in his evidencethat AO demanded} bribe of Rs.3,000/- one^{month prior toEx,P.1-reportdated}

¶63

Dr.5A,.l Crl.A.No.177 of 2008

¶64

¶65

L6.04.2002, the prosecution case cannot be brushed aside and it would not vitiate the findings recorded in relation to demand of bribe of Rs.3,000/-. There is also other overwhelming oral and documentary evidence on record to substantiate the demand and acceptance of bribe by AO on 78.04.2OO2 in his ofFice.

¶66

Here it is apt to refer to the decision in N.Vijay Kumar's case (1 supra), cited by the learned counsel for the appellant, wherein the Hon'ble Apex Court observed that mere recovery of amount cannot prove the guilt and the prosecution has to prove beyond reasonable doubt that the accused demanded and accepted money knowing it to be bribe and the presumption under Section 20 of P.C.Act can be drawn only after demand and acceptance is proved. The facts of the case on hand a.re different from the facts of the case cited above.

¶67

ln B.Jayarai's case (2 supra), cited by the learned counsel for the appellant, the Hon'ble Apex Court observed that the prosecution has to prove demand beyond reasonable doubt and mere recovery cannot constitute offences under Sections 7 and 13(1)(d) of P.C.Act. In the instant case, there is ample evidence on record in relation to demand of bribe of Rs.3,000/- by AO to process the file relating to retirement benefits of father of pW.1 and then recovery oF the same in the presence of the mediators. Therefore, the above decision is distinguishable from the Facts and circumstances of the case on hand.

¶68

--.-F

¶69

¶70

Dr.SA,l C. A.No.177 of 200a

¶71

¶72

¶73

Under these circumstances, in view of the cogent and clinching evidence on record, the defences set up by the AO are untenable. The Court below, had elaborately dealt with entire evidence on record and rightly found the AO guilty of the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the pC Act and convicted him of the said offences as stated supra. There is no infirmity in the impugned judgment, This Criminal Appeal is devoid of merits and liable to be dismissed.

¶74

In the result, the Criminal Appeal is dismissed, confirming the^judgment, dated 22.01..2008 passed in C.C.No.1B of 2003 by the learned Additional Special Judge for SPE & ACB Cases, City Civil ' Court, Hyderabad.

¶75

Miscellaneous petitions, if any, pending in this Criminal

¶76

Appeal, shall stand closed.

¶77

//TRUE COPY//

¶78

SD/.K.SRINIVASA^RAO JOINT REGISTRAR G

¶79

SECTION OFFICER

¶80

To,

¶81

l.TheAdditionalspecialJudgeforSPE&ACBCases.CitvCivilcourt,Hyderabad 2. The lnsoector of^{potice, A;iiC;;^rpt'";Bure_au. Hydera6ad Range, Hyderabad.} 3. One CC to Sri C.^{SharanReddy,AdvocateIOPUL;l-} ;. i;; CCs tJSri i.^{t_. Nayan-t<uiiar, Speciat'Public-Prosecutor for ACB Cases,} - Hbi c;;rt f* ffre Statebf telangana at Hvderabad [oUT]

¶82