Ram Prakash Arora v. Punjabl

Judgment

THE HON'BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.1 16 OF 2018 JUDGMENT: 1 Chattenge in this criminal appeal filed under Section 374(2) Cr.P.C was taid to the judgment dated 29.17.2017 passed in C.C.No.29 of 2008 on the fite of the Court of the Principal Special Judge for SPE & ACB Cases-cum-lV Additionat Chief Judge, City Civit Court, Hyderabad, whereunder the appettant herein was convicted and sentenced to suffer rigorous imprisonment fg( one year and atso to pay fine of Rs.5,000/- for the offence punishabte under Section 7 of Prevention of Corruption Act, 1988 and was further sentenced to suffer rigorous imprisonment for one year and also to pay fine of Rs.5,000/- for the offence punishabte under Section '13 (1) (d) r/w 13 (2) o'f the Prevention of Corruption Act, 1988. 2 The factual matrix that [ed to the fiting of this appeal is as fottows: a One Padma Rao (P.W.1) who was the Managing Director of Hiranya Sotutions Private Limited, Hyderabad, gave report to the ACB officiats atteging that the appellant who works as_ t 2 Superintendent in the office of Director, Works Accounts, A.P. demanded Rs.5,000/- as bribe in connection with the fixation of commission to be paid to him. P.W.1 was supptying Data Processing Officers (who were called as Data Entry Operators subsequently) to Pay and Accounts Office and Assistant Pay and Accounts Offices under the Director, Works Accounts throughout the State of Andhra Pradesh. According to him they used to get Rs.4,000/- towards salaries and services and Rs.400/- towards service tax per person per month. a b. As per G.O.Rt.No.2501 dated 13.7.2006, the DPOs should get Rs.6,500/- and commission to be paid separatety but the G.O.Rt.No.2501 was not implemented and the emptoyees were demoted as Data Entry Operators from Data Processing Officers which resulted loss of Rs.1,000/- per-emptoyee per month and the commission to be paid to him was not fixed. ln that connection, the appettant demanded P.W.1 about one week prior to his report and as he did not yietd the appettaht got issued Memo dated 10.5.7007 which does not mention about the commrssron. When P.W.1 approached the appeltant, he again reiterated his demand and as P.W. 1 was not interested to pay the same, he approached the DSP, ACB and todged Ex.P.3 repot:t and J subsequentty the trap was conducted during which the appeltant wascaughtredhandedtyfordemandingandacceptingthebribe amount.Aphenotphthaleintestwasconductedoverboththe hand fingers of the appettant as we[[ as the inner linings of pant pockets from where the tainted amount was recovered and the right hand wash of AO and inner linings of pants pocket of the appettant yietded positive resutts. The tainted amount of Rs.5,000/- was recovered from the possession of the appettant in the presence of mediator. The appettant was arreste( on

11.5.2007 at 7.30 p.m. and was produced before the Court for judiciat remand and subsequentty he was reteased on bait' The 164 Cr.P.C. statement of P.W.1 was got recorded by the competent Magistrate. After comptetion of investigation and after obtaining necessary sanctions, the charge sheet was filed for the offences punishabte under Sections 7, 13(1)(d) r/w 13 (2) of the Prevention of Corruption Act, 1988. c. The appettant was examined under Section 239 Cr'P'C and charges under Sections7,13(1)(d) r/w 13 (2)of the Prevention of Corruption Act, 1988 were framed against him for which he pteaded not guitty and claimed to be tried. During the course of trail, the prosecution examined P.Ws.1 to 9 and got marked as 4 many as 33 exhibits as Exs.P.1 to P.33 besides M.Os.1 to 8. On behatf of the defence, the appetlant Exs.D.1 and D.2 were marked. On behalf of Court Exs.X1 to X.'12 were marked. 3 On an anatysis of the entire materiat both oral and

decumentary, the trial Court found the appetlant guitty of the offences under Sections 7, 13(1)(d) rlw 13 (2) of the Prevention of Corruption Act, 1988 and accordingly convicted and sentenced him as stated supra by judgment dated 29.12.2017. Aggrieved, the accused preferred this appeat. 4 Sri D.Bata Kishan Rao learned counsel appearing on behatf of Sri Chittineni Vidyasagar, learned counse[ for the appettant a submitted that the trial Court failed to take into consideration the statement of the investigating officer that P.W. 1 did not state before him the eartier demands as alleged on 2nd and 3'd May,2007 and as per the version of the lnvestigating officer, the demand was made only on 10.5.2007 while receiving Ex.P.2 tetter written by Director under acknowledgement intimating P.W.1 that he fixed the remuneration of the Data Processing Operators treating both the officers to same cadre officers and the commission to be fixed after receiving orders from. the l7' 5 Government and the letter was sent to Government under Ex.P.17 and thus ought to have seen that P.W.l is fu[[y aware before todging the comptaint on 10.5.2017 and atso on the date of the trap on 11.5.2017 and he also stated before the court that the appettant cannot do any favour to him on 10.5.2017 to put up the fite for fixing commission to him and therefore ought to have disbelieved the evidence of P.W.1 and acquitted the appellant.

5. The learned counse[ for the petitioner further contended that the trial Court faited to take into consideration Ex.P.12 the 2nd mediators report and the statement of P.W.2, the mediator, and the statement of the investigating officer in respect of the variations about P.W.1 giving the tainted amount to the appettant. He further contended that the trial Court failed to take into consideration the evidence of P.W.3 - Director, Pubtic Works Accounts who stated clearly that the appetlant cannot do any favour to P.W.'l on the date of the trap and also stated that the appeltant never attempted to influence him in fixing up the commission to P.W.1 and hence the finding of the trial Court that officiat favour is pending with the appettant on the date of trap is unsustainable. 6 6' The learned counsel for the petitioner further contended that the investigating officer admitted that P.W.1 did not state in Ex.P.3 that the appetlant has demanded bribe on 02.5.2007 or on

03.5.2007 and that he further admitted that even in his161 Cr.P.C. statement P.W.1 has not stated that the appeltant demanded bribe on the said dates but what he stated to him was for the first time in 161 Cr.P.C. statement P.W.1 stated that the appellant demanded bribe of Rs.5,000/- on 10.5.2007 and hence the evidence of P.W.1 cannot be believed and atso for the'ieason that there was no possibitity for demanding bribe from P.W.1 as the file was under circutation to the Director on 2nd and 3'd of May,2007 and was pending with the Manager Accounts and Joint D'irector. 1' The learned counsel for the petitioner further contended that P.W.1 stated in his cross examination that he acknowtedged the receipt of Ex.P.2 on 10.5.2007 and he was aware by the afternoon of 10.5.2007 that his commission woutd be fixed by the Government and the appe[tant coutd not take any decision in fixing the commission and he (P.W.1) also stated that it was mentionedjn Ex.P.2 that the commission payabte to him would be intimated later on the rece'ipt of the necessary inslr]Lctions- J,..'. 7 form the Government and that P.W.1 also informed to the Dy.S.P, ACB at the time of todging Ex.P.3 comptaint that a letter was atready addressed by the Director to the Government for fixation of commission. g The learned counset for the petitioner further contended that insofar as the demand of bribe is concerned, there is variation in the evidence of P.W. 1 and P.W.7. P.W.7, having knowtedge that the appellant coutd not do any officiat favour to P.W.1 taid trap without verifying the record. P.W.1 and P.W.2 both admitted in their cross examination that they are ctose friends. That being so, P.W.2 cannot be an independent witness but can be termed as interested witness.

9. ln support of his contentions, the learned counsel for the appettant relied on the fotlowing judgments: 1) Ram Prakash Arora vs. Punjabl, 2) Pannalal Damodar Rathi vs. State of Maharashtra2, 3; Niral Dutta vs. NCT Delhi3, 4) C.K. Damodaran Nair Vs. Government of lndiaa, 5) Jaya Raj I t ' (1912) 3 scc 652 ' 1tltl1 I scc sto r. 2023 scc online 5c 280 o (19911 9 scc 477 ; I I 8 vs. State of A.Ps, 6) A.Subair vs. State of Kerala6, 7) K. Shanthamma vs. State of TelanganaT, 8; N.Vilaykumar vs. State of Tamil Nadu8, 9) C.M.Girish Babu vs. CBle, 10) State of Kerala vs. C.P.Rao'o, 11) C.Sukumaran vs. State of Keralall, 121 Meena vs. State of Maharashtral2, 13) Krishan Chander vs. State of Delhi13. lo' On the other hand, Sri Sridhar Chikyala, learned Speciat Pubtic Prosecutor for ACB submitted that the evidence on record coupled with Ex.P3 comptaint and 164 Cr.P.C. statement of PW-1 themsetves estabtish the ingredients of Section 7 of the P.C.Act, 1988. The factum of demand and acceptance was also estabtished through the evidence of PWs.7 and 9, and also in view of the fact that recovery of tainted amount was atso proved by subjecting the appellant to chemicaI test which yietded positive resutt, presumption u/s. 20 of P.C.Act, 1988 can be drawn against the appetlant. Moreover, it is not the case of the appettant that he resisted with his right hand when P.W.1 tried 5 lzorl; r: scc ss 6 (zoo9) 6 scc 450 til3liiiz.?,?, ' (zoogt 3 scc 779 'o(2ott)osccq5o " (zol 5) t t scc 3t4 " 12ooo; 5 scc zt " 20t 6 cnLJ t 079 sc I ta, 9 The learned Speciat to thrust the bribe amount into his pocket. Public Prosecutor further contended that Section 20 of the Prevention of Corruption Act, 19gg is rebuttable presumption and the AO did not rebut the said presumption and therefore, the court has to take into consideration that the demand and acceptance of gratification by the appettant. He submitted that the impugned judgment is based on sound appreciation of law and facts and hence no interference is warranted and prayed to dismiss the criminat appeal. r. 11 As seen from the record it is to be seen that the quotation of PW-1 for the outsourcing contract has been accepted by the Director as he was doing already outsourcing work and the remuneration was fixed at Rs.4,000/_ per employee including the service tax and the commission of the agency merged with remuneration. He further submitted that pW_1 sent application Ex.P8 on 17.3.2007 requesting to accept the commission quoted by Jyothi Computer Services, first [owest and to implement G.O.No.2501 fixing up Rs.5,500/- and Rs.6,500/_ for outsourcing employees besides his agency commission separatel.y excluding @ 16'447"' The apptication was received by Smt.sita Maharaxmi (Pw-6) through tappat and was inwarded in rnward Register vide h.- 10 Ex.P74 and the appettant has put up the note in Ex.P'l 3 on

24.3.2007 to the Director (PW-3) on the basis of the apptication given by PW-1. Then the said note file was sent to theManager (Accounts) which was again sent to the Joint Director on 29.3.2007 and it was sent to the Director who made an endorsement "to elaborote on what is required to be done by the office and send the file" and in reverse process, the fite reached the AO on O4.4.2007. He re-submitted the fite to the Director on M.4.2007 through proper channel and the sa(ne was not accepted by the Government and it was said that "permitted the Director to continue with the existing arrangement till an alternative is fixed and submitted for orders" and the fite was again sent back in the same reverse manner to the AO. Then a draft letter was prepared on 10.4.2007 under Ex.P26 and the appetlant to put a note on 04.5.2007 in pursuance of the Memo received from the Government detaiting the remunerations to be paid to the DPOs/DEOs @ Rs.6,500/- and Rs.5,500/- per month respectivety inctuding the service tax without the commission to the agency, since the Government memo was silent with regard to the commission. The Government gave discretion to the Director to fix the remuneration to the cadre,employees and_ ry( 11 accordingly, the Joint Director endorsed on the note. There upon, the Director fixed the remunerations on the roles ptayed by DPOs/DOEs treating them as Data Entry Operators and fixed the remuneration @ Rs.5,500/- and directed to send a letter to the Government for clarification regarding fixing of commission separately for the agency and a letter to that effect was sent to the Government under Ex.P17 dated 10.5.2017 for fixation of commission and copy of it was sent to PW-'l intimating the enhanced remuneration and also stated that with regard,to the commission, letter was sent to the Government for fixation and the same was acknowledged by PW-1 under Ex.P18. 12 As coutd be seen from the record, PW-1 did not mention in his deposition about his giving apptication Ex.P8 to the Director on 17.3.2007. The evidence of PW-1 goes to show that he met the appettant on 2nd or 3'd of May, 2007 and the appetlant demanded him for payment of bribe of Rs.5,000/- for imptementation of the GO and fixation of commission. But in his cross-examination, he admitted that the dates as 2nd or 3'd of May,7007 is not written in comptaint Ex.P3 and he also did not state before Magistrate in his 161 Cr.P.C. statement that on those dates the appetlant demanded for the payment of bribe. ----::.1-:*T- 12 PW-l further stated that he did not state before the DSP, ACB at the time of recording his statement that the appettant demanded him on 7"d or 3'd of May, 2007 for the payment of bribe of Rs.5,000/- for processing the fite for revision of salaries. This version is supported by P.W.7 the investigating officer who admitted that PW-1 did not state in Ex.P3 that the appetlant has demanded bribe on 02.5.07 or on 03.5.07 and he further admitted that even in his 161 Cr.P.C. statement, PW-1 has not stated that the appettant demanded bribe on 02.5.07 orO3.5.07 but what he stated to him for the first time in his 161 Cr.P.C. statement about the demand of Rs.5,000/- on 10.5.2007 - Therefore, it is very ctear that PW-l is not speaking the truth about demand on 2nd or 3'd May, 2OO7 by the appettant demanding Rs.5,000/-. So there was no possibitity for demanding bribe from PW-1 as the fite was under circutation to the Director on 2nd and 3'd of May, 2007 and was pending with Manager Accounts and Joint Director. 13 lt was further argued that the complaint Ex.P3 was given to the Dy.S.P. at M.00 pm on 10.5.2007, PW-1 had knowtedge that the Director Accounts enhanced the remuneration to cadre of Data Entry Operator under Ex.P2 dated 10.5.2007 served on him 13 and the said [etter was given to him by the Director of Works Accounts under Ex.P18. ln that letter, the monthty satary of Data Entry Operators was fixed at Rs.5,500/- per month. So there was a chance or situation for PW-1 to be unhappy against the Director for demoting cadre employee Data processing Officer equated with the Data Entry Operator remuneration at Rs.5,500/- instead of Rs.6,500/- drawn by DpO and he atso had knowledge from Ex.P2, the Director wrote a letter for fixation of the commission payable to his firm. PW-1 stated in cross examination ttiat he acknowtedged the receipt of Ex.p2 on 10.5.2007 and he was aware by the afternoon on 10.5.2007 that his commission woutd be fixed by the Government and appettant could not take any decision in fixing the commission. He also stated that it was mentioned in Ex.P2 that the commission.payabte to him woutd be intimated later on the receipt of the necessary instructions from the Government. He also informed the DSp, ACB at the time of todging comptaint Ex.P3 that a letter was already addressed by the Director to the Government for fixation of commission. pW-7 investigating officer stated that pW-1 has not produced Ex.p2 along with Ex.P3 to him PW-1 and that he has not submitted any other document incIuding Ex.P8 and Ex.p17. pW-1 stated that 14 the Government has not fixed the commission charges and the Government only has to fix commission and the appettant could not do anything with respect to that fact. PW-3 asserted that the appettant is not having powers to fix the commission, the appettant did not bring pressure to fix the commission or deal with the fite in the manner suggested by him. This clearly shows there is no possibility for the appeltant to demand on 10.5.2007 and PW-1 meeting the appetlant in the office for this purpose except detaiting Ex.P2 and the appetlant demanding bribe for processing the file for fixation of commission. Therefore, the evidence of PW-1 insofar as the demand of bribe on 10.5.2007 cannot be betieved. lt is therefore, very clear that the appeltant cannot show any favour to the complainant. Thereafter, the DSP knowing futly wetl that the appetlant cannot do any favour to P.W.1 for processing the fite without the directions from the Government received for the letter sent to the Government under Ex.P17, decided to lay trap against the appettant on 11.5.2007. 14 Further, on the date of trap, as per the evidence of P.W. 1 the demand of bribe was made by appettant after consuming the tea and he received the tainted cash with right hand and kept it 15 in right side pants pocket. There is no corroboration for his version from mediators or the trap taying officer. This was not witnessed by the mediators and trap party. As per the evidence of PW-7 and the contents in Ex.p12 and as per version of pW_1 the appettant said to have received the amount before coming to tea statl. Therefore, the demand and acceptance as stated by him to the mediator in Ex.p12 and the statement given by him under Ex.D1 renders his evidence tack of credence. 15 The evidence of pW-2, the independent witness, is ttiat tt"re version given by pW-1 to the effect that while pW_1 and the appettant were on the way to the tea stalt, the appettant demanded PW-1 for payment of bribe and then pw-1 handed over the tainted cash to the appettant and the same was received by the appetlant with his right hand and kept in right side pant pocket and thereafter both of them went to the tea statt and had tea. There is no mention that the appettant demanded at the tea statt and accepted the amount. 16 Therefore, from the above discussion what emerges is that proof of demand and acceptance of ittegat gratification by a pubtic servant as a fact in issue by the prosecution is a sine qua 16 non in order to establ,ish the guitt of the accused pubtic servant under Sections 7 and 13 (1) (d) (i) and (ii) of the P.C Act. ln order to bring home the guitt of the Accused, the prosecution has to first prove the demand of ittegat gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. Mere acceptance or receipt of an ittegat gratification without anything more woutd not make it an offence Under Section 7 or Sections 13(1Xd)(i) and (ii), respectivety of the Act. Therefore, Under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the pubtic servant which woutd make it an offence. Simitarty, a prior demand by the pubtic servant when accepted by the bribe- giver and in turn there is a payment made which is received by the pubtic servant, woutd be an offence of obtainment Under Sections 13(1)(dxi)and (ii) of the Act. 17 ln the instant case the prosecution faited to prove that any officiat favour is pending with the appettant as on the date of giving comptaint by P.W.1 inasmuch as PW-l himsetf stated in cross examination that he acknowtedged the receipt of Ex.P2 on 17

10.5.2007 and he was aware by the afternoon on 10.5.2007 that his commission would be fixed by the Government and appeltant could not take any decision in fixing the commission. He atso stated that it was mentioned in Ex.P2 that the commission payabte to him would be intimated later on the receipt of the necessary instructions from the Government. lt is the settled convention in such cases that the Trap Lying Officer, makes efforts to verify the factum of demand of bribe by pubtic servant before initiating the trap proceedings. The factum of den;and of bribe can also be verified by recording telephonic conversation between decoy and suspect pubtic servant. Here, in instant case, lnvestigating Officer does not seem to have undertaken said exercise at att. Mere recovery of money by itsetf, in my view, may not be sufficient to show that the money that is recovered was an ittegat gratification received by Accused Officer for doing any official favour. Failure of the prosecution to prove the demand for ittegat gratification woutd be fatal and mere recovery \ \ of the amount from the person accused of the offence under Sections 7 or 13 of the Act woutd not entail his conviction I I thereunder. Therefore, even for said reason prosecution version comes under shadow of doubt. 18 .18 ln that view of the matter and for the aforesaid discussion, I am of the considered view that the prosecution faited to bring home the guitt of the appettant for the charged offences beyond reasonabte doubt and accordingLy the appettant deserves the relief . 19 ln the resutt, the appeat is attowed setting aside the judgment dated 29.12.2017 passed in C.C.No.29 of 2008 on the fite of the Court of the Principat Speciat Judge for SPE & ACB Cases-cum-lV Additionat Chief Judge, City Civi[ ' Hyderabad. The appettant is acquitted of the offences punishabte under Section 7 and Section 13 (1) (d) r/w 13 (2) of the Court, prevention of corruption Act, 1988. His bait bonds shatl stand cancelled. The appettant is entitted to refund of the fine amount. 20 As a sequet, miscettaneous petitions, if any, pending in this criminal appeal shatl stand 9t_o:e4. Sd/- C.V. MALLIKARJUNA VARMA JOINT REGISTRAR //TRUE COPY// CTION OFFICER 1 The Principal Special Judge for SPE & ACB Cases-cum-lV Additional Chief ' i;;s;,'Ciii bivii-court. H/derabad (with records' if anv) 2. The lnspector of Police, ACB, City Range ll, Hyderabad 3. One CC to Sri Sridhar Chikyala, Spl PP for ACB IOPUC] 4. One CC to Sri D Bala Kishan Rao, Advocate [OPUC] 5. Two CD CoPies \ To, VPJgh i HIGH COURT DATE D :2 510212025 JUDGMENT CRLA.No.116 of 2018 .,.a: i t', e STaT a I ,,_4, 0 7 urii'irtl )-' t_ D5 * ';o ALLOWING THE CRLA