Allowed

M.Sudershan, v. The State Acb, Karimnagar Range, Hyderabad

Telangana HC13 Jun 2023CRLA/1371/2007

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against Assistant Engineer's conviction for accepting bribe. Benching that prosecution failed to explain why money was placed in a wedding cover and that negative phenolphthalein test on banker's hands raised doubts about planting, the court applied benefit of doubt.

What did the court decide?

Criminal Appeal allowed; impugned judgment set aside; bail bonds struck off and discharge granted.

M.Sudershan, Vs The State Acb, Karimnagar Range, Hyderabad — Corruption | Telangana HC (2023)

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Note: The AppellanuAccused.was directed to be released on bail by the order of the High court dated:1 1 - 1 0-2007 in crr.M.p-N;. teis ;{iooi in caR. ruo. t rzt ot zooz

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13251 |

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IN THE HIGH COURTfOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE THIRTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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c IMIN APPEAL No:1 371 0F 2007

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Appeal under section 374 (2) of cr.p.c against the Judgment dated 29-09-2007 - passed in c.c.No.51 of 2003 on the fire of tie court of tnJerincipat sp""irrlris" for SPE & ACB Cases, City Civil Court, at Hyderabad.

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Between:

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M.Su{ershan,, S/o. Narsimulu, aged about 43 years, Asst.Engineer, panchavati Raj Department. tbrahimoaina"m, ka,irrn;g'; bi;fti- ff;.^{"'H.r.r,i.i:f_b?'} Adharshnagar Nretpalli, Karimnagrr'Districi^{" -"*'}

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...AppellanUAccused Officer

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AND

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The State ACB, Karimnagar Rang^e, Hyderabad,, rep.by its Special public Prosecutor for ACB Case"s, High^{"c.;urioifetaig;n"i} iiyoerauao

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...RespondenUComplainant

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Counsel forthe Appeflant: SRI BADETT VENKAT RATHNAM

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counsel for the Respondent: sRt SRTDHAR cHrKyALA, STANDTNG couNsEL

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FOR ACB

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The Court made the following JUDGMENT:

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HON )I]RABLE SRI JUSTICE K.SURENDE;R

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C TIMINAL APPEAL NO.1371 Of 2EEI7

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JUDGMENT:

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1.^'lhe ap,lr llatrt wh,t rvas working as Assiritant Engineer u,as cntnrppr: L by the ACB for the reason c l accepting an amount of i.ls 1 0OO/- from P.W. 1/complaLnzrnt or putting up lile pcrlair-Lirx1 to the complainant with replard ,: return of his IIMD oi Rs. OOOI-. Litarned l)rincipal Sf,ecieJ ..ucgc for SPtr & ACB^(l:Lscs, Cit..,, Civil Court, I{yderabad founrl th,: appellant gr"riity ancl ctr- i.icted hirn lor the olfence u.rder ll:clions 7 and Scction l3(1r d) punishable under Ser:tiorL l3(2) of the Prevention of Corruption Act vide judgm,:n1, i:. C.C.No.51 of 2003 d:r1 .:r1 1. I 09.2OA',7. Aggrieved by the szrid conviction, pr( s|lll cllil,( l ls lilCd.

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Tirc :ar;i: rt-I).W. I is that in thc month of' _;,mtrar1,., 200 l, cirril conlra()'. !/as granted lor construction of <:ommunity shelt,er al 1r :r l-rimpatnam by the oflicc ()1- 1:Ie Executive llrrgrnecr, Pi,Lc Layat Raj and he cornpleted the'r'.rrk within slr montLrs. Firr,r bill rvas also givcn in respe(tt (ll- llte siaid works.

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P.W. 1 made initial deposit of Earncst M or re-,,.- Dcposir (liMD) ol Rs. 11,000/-, ior which reason, an application under Dx.p11 was made for returning EMD.

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On L4.O2.2O02, P.W. I went to the office seeking return of trMD, when demand of Rs.5,000/- was made by the appellant. The demand was reiterated ot 27.O2.2OO2. Hou,erzer. the bribe amount was reduced to Rs.4,000/-. On the next day i.e., on 28.02.2002, P.W. 1 preferred complaint belore the ACB authorities. On the basis of the complaint, after conducting preliminary enquiry, case was registered and trap was iaid on o1.o3.2002.

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The trap party met on 01.03.2002 at 4.OO a.m and the 1"t mediators' report was drafted. During the 1"t mediators, report, P.W. 1 was questioned by the independent mediators regarding the complaint and also phenolphthalein powder was applied to the bribe amount in accordance with the procedure. The consequence of phenolphthatein sodium carbonate solution test was demonstrated to the complainant. After conclusion of the proceedings, the trap party went near the ..-.\

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hciusc ,r1' tlrr rl)pellant, rrs PWI was alle ge rlll rrs1,c:cl ln rlte appL-1ll:rt tu jt r.' t1'rc zrrr-rounL at his house . ArCt_nd 7.1:.r a.n'r. P.W. I ',i,c 11 il c the I'ror_rse and entered tlre drilvirg roonl of the appt.l1ar,l :t td qucslionecl about thc pr()co: sinq ol' IiMI) applicaliorr. I rr- s.hi<:lr r-cason, the aF pellar.r, lentatrclecl u,he rhcl l;r'il,r. 'unount u,trs brought. When oflerr: .1. iL is stated that Lhc irl)l)(.. :1n1, asked tl-re amount to 1;e prleu:ed in lrl.x. p3 ',r,edcl^{inq ('ar'l)over} urhiclr wats on the taltle. i- th,: dr.arring roonr. ..\l-rlr' 1rl Lr.ing lhc :rmount in the weddir)Er crLrd cover, P.W. i canrt t,r t aitd gave pre-arranged sipnal irrrlicltinil th:rt the :rppclllrnl l- rrl lecr:ivr)cl the bribe amoun,.

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-lhc rlir I >i rty wenl into the house ol the ir tpr:llant ar-rd questionc( I rr: 1:rcling tl'rc bribe amour t. 'I'l:: appcilant informecl tlrc I) il) that PWI lorcibly tried to give ,.r m(.amrrLrnt, he relusccl r.tL I asked PW1 to go away. 'ft,r;._ of sor.lium carbor-r:rlc so r.L ir,n was <;orrducted and botlr the :.rar ds ol the appellant^r rrrnr d negativc indicating that t're rn one_\ wLrs not hartcllr:cl l;r 1L a1;peJlanl. Ilolvever, thc lrrtbe i,mount \vas

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seizccl l':',.r Ll r i.siclc li...irg room of the house r,.here it rvas

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=-aE\ :8r
\ :r.

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kept on a table, at the instance of the appellant. 'lhe appellant refused to touch the wedding card cover.

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After completing the formaiities of recorcling stalements, seizure of documents and bribe amount, 2"d me:dialors, report Ex.P8 was drafted and thereafter investigation was handed over to the inspector. After completing the inves tigation, Inspector Sharat Babu f,rled final report/charge sheet.

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Learned Special Judge having framed charges under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act, examined P.Ws.1 to 5 and marked trxs.p1 to plO on behalf of the prosecution. In defence, the appellant examined D.Ws.1 and 2 and also documents Exs.X1 to X3 were marked.

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Learned Special Judge did not hnd favour with the defence of the appellant that the money was planted in the wedding cover. He further found that the case projected by the prosecution was convincing and accordingly convicted the appellant. The defence witnesses D.Ws.1 who was examined by the appellant stated about an altercation between the complainant and the appellant. According to him,

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Lealncrlⁱ¹ r:r:ial^(ioltnscl rclied on tlrr, .j -rdrln-rel-rt of Hor-r'ble Sl. pr-l';- r'^(lourt .n t}-re c:,rse of Neer:aj Dtrtita v.^State (Governmcnt, r f NCT of Delhi| and argu,:d thzrt hrstilitv of Lhe compll:in,rr- .rannot lte macle basis to^re cord^{, <:qlrittaland} the Court cetrr r ly upor.i t-hc^{t.rtl-ier eviden<:eadtl rct'c1 by the} prosecution lo ir rlt'r denrancl o1' bribe. He also .-r:licd on^the .judgment^{ol' Ilrt ble Suprer-t-tc(loutrt ir-i the ,:ase -N.Narsinga} Rao v. Statc c,f Andhra Pradesh'r ald^{ar11-, dtha1.the} presuml]tior-i <:i n be drau,n on the basis of the^{:l nolrt-rt being} rccovere d il-o;r I.c accu-secl. l{r: also relied on th. luclgment of Hon'ble Suprcr rc^(lourt in the case of T.Shanka.r l)rasad^v. State of A.P' ,,lterein tl-re Ilon'ble SuprenLe Cc^r- rL held that prcsumplion r ndr:r Scclion 20 ol the Act is a legal presumption. I o\vr:tzer,^r I'rc said presumptlorl re :uttal by proof and lrot l.r^, :nere explauation.

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r 2022 L veLai! (s( ) 10 l,r 'Appeai (Cri ,'19 rl 1(:', 1,, ted 12.1: 2Ci)0 (2004) 3 Sur,rerr ' Co l r(,s)51

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.%\ ,; :: \ :.. .l

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As seen lrom the complaint Ex.p2, endorsement is made by DSP that the complaint was received on 2gl2/2OO2 at 9AM. There is another endorsement that ,,on 01.03.2002 at 4.00 a.m", since the contents of the complaint macle out an offence, after verification and obtaining necessary permission, investigation was taken up. As seen from the document EXp2, the endorsement by^p.W.5 that the complaint was received on 28.O2.2OO2 appears to have been made subsequently. There is no mention about the DSp delegating any job either for verihcation of the complaint or to know antecedents of the appellant to anyone. But the endorsement on I /3 /2002 states about verihcation and obtaining necessary orders. Observing carefully, the endorsement of DSp dated 2gl2 and 1/3 were made after the endorsement on I /3l2OO2 at 4 AM. There is no signature of the ofhcer who made the endorsement on I /3 at 4 AM.

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The complaint lodged by p.W. 1 creates doubt when Ex.Xl GO is considered. According to trx.X1, the Government has fixed defect liability for a period of two years which means,

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EMD paid co,,r rl be re tu.rne c'1 after tr,l,o years of c.on plet ion o[ works. Ho\ re,;, r. in thc prese nt case th() cla t.:.1 r ras made u/ithin six rnot'r hs. 16. The roe,-lir tor admitted that the wile ol'ther eL1>pe llant who was examine cl ,r; D.W, I u,as present in tlLe hct; se. Sher l,vas not examirte(l rr, the ACIB. uaving entered^..nto th: witness box, the u,ife r l- the appeliar-rt stated that aroun C i,. 10 a.m, while she lrra s n the kitchen, complainant calro th3re. She opened the doo irnd fourrd P.W. 1 with measurerr:,nt book and some other p,1l: irs with him. P.W. 1 requested h,:r.to \val<e up the husbar-rd s r that he could Lalk r.r,ith him iu.d sat on a chair. D.W. l ,r,,-nt in si,Ce and woke up the ap 1; :11:urt. After brief conve rse -ti ,r: in betvzeen the appellant rmd I).'.tr/.., severai officers enter:i irLto the house and conduct:d pror:eedings. ln spite of the arp :llant staLing that he never took r: ny amount, ACB ofhcials r:o rc ucted proceedings and the--eaftr .: 1ef:. 17. The cerse :r ; rrojectecl by the prosecution giv:r, rir;e to any amount of ,l ou l_ . regarding thc registration of cri t: e.^..ime and date of lodging .f.e complaint.^'|1-rere is no exple,:Lati:n as lo

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why the amount was asked to be placed in the wedding cover. If the amount was asked to be placed in the cover, p.W. 1 while handling the tainted notes zLnd placing the same in the cover, undoubtedly, phenolphtha-lein powder would have been transferred to the cover. In the event of the cover being taken from the drawing room to the inside living room, phenolphthalein powder would be transferred to the hands of the appellant and yielded positive result for the test on his hands. Since the test on the hands of the appellant remained negative ald there is no explanation for the said negative result, the case as projected by the prosecution creates arry amount of doubt.

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For the foregoing discussion and aLso relying on the judgments of the Hon'ble Supreme Court cited supra, planting of tainted notes in the wedding cover can be believed. Benefit ofdoubt can be extended to the appellant.

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Accordingly Criminal Appeal is allowed by setting aside impugned judgment of learned Special Judge in CC No.51 of 2003 dated 29.O9.2OO7. Since the appellant is on bail, his

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bail bonfs sha1l s;L:rnd dischargecl. -)onsequently,

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miscellaneous; ; o tljcatiorLs, if any pending, r;hali sr:anC closed.

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liclt-B. S.CHIRANJEEVt JOINT REGISTRAR

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//TRUE COPY//

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SE(]TION OFFICER