Judgment · High Court · 2009

Judgment

#1. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short,, ‘Cr.P.C.’), is directed against judgment dated 19.10.2002 Calendar Case No.23 of 1998 on the file of the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court at Hyderabad, whereunder and whereby the appellant/sole accused was convicted of the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months, under each count.

#2. The brief facts that are necessary for disposal of this Criminal Appeal may be stated as follows: The appellant worked as Junior Assistant Apprenticeship Adviser, Government I.T.I. for Boys, Anantapur. P.W.1, who is the complainant, was working as Man Mazdoor in public works workshop of Garladinne. In order to get promotion as Work Inspector in Irrigation Department, one has to pass All India Trade Test in Draughtsman (Civil) Trade. In order to get the promotion, in the year 1997, P.W.1 submitted Ex.P1-application for the test through his superior officer i.e. P.W.5-Deputy Executive Engineer, who forwarded it on 11.11.1997 to the Principal of I.T.I., Anantapur, and the same was forwarded to the Regional Deputy Director, Tirupati along with other applications. The said Regional Deputy Director returned the applications with a direction to verify the applications and resubmit the same by 31.1.1998. Ex.P9 is the memo dated 9.1.1998 with an endorsement of P.W.4 that the said application should be verified by the appellant herein. After verification, the application has to be sent again to the Regional Deputy Director, Tirupati. If the application is in proper form, then they issue hall tickets through Principal, I.T.I., Anantapur candidate. On 27.1.1998, P.W.1 visited the office of the Principal, I.T.I, Anantapur at about 4.00 PM and there he met the appellant. At that time, the appellant asked him to meet one week later. Again on 6.2.1998, he met the appellant. Then, the appellant, after verifying his application, informed him that two passport photos were necessary and further stated to verify and recommend issuing hall ticket, he had to pay Rs.3,000/- for doing the official favour. When P.W.1 expressed his inability to pay the demanded amount, the appellant reduced it to Rs.1,000/- and said that he would not do his work unless he paid the amount. Unwilling to that amount also, P.W.1 met P.W.7-Deputy Superintendent of Police, Anti Corruption Bureau, Anantapur on the same day at about 5.00 PM and lodged Ex.P2-complaint. On that, P.W.7 asked him to meet on the next day. P.W.7 verified the antecedents of the appellant and after obtaining permission from the head office, he registered case in cr.no.3/ACB-ATP/98 on

7.2.1998 at 11.00 AM and issued Ex.P14-F.I.R. At about

11.30 AM after arrival of P.W.1 and mediator P.W.2, Ex.P4-pre-trap mahazar was drafted after explaining the details of trap and the characteristics of phenolphthalein powder applied on the currency notes, and placed the notes in the shirt pocket of P.W.1. Thereafter, the trap party moved towards the office of the appellant. At about 12.45 AM, P.W.1 went to the office of the appellant, and on seeing him, the appellant asked him whether he brought the necessary photographs. P.W.1 gave the photos to him and the same were kept in his right side table drawer by the appellant. Thereafter, the appellant questioned P.W.1 whether he brought the amount, and on that, P.W.1 gave him the amount. The appellant then told that he would verify the application and forward it to the concerned authorities with favourable remarks. Thereafter, P.W.1 came out and gave the prearranged signal. P.W.7, on receiving the pre-arranged signal, rushed to the scene along with the trap party and introduced himself and the trap party members to the appellant, and enquired the appellant about the money. When the hands of the appellant were subjected to sodium carbonate solution test, the solution turned into pink colour. Later, the currency notes were produced by the appellant from his pocket. Then, Ex.P7-post trap mahazar was prepared in the presence of P.W.2 and M.O.1-currency notes were seized. The shirt of the appellant was also subjected to sodium carbonate solution test, which also turned into pink colour. The investigating officer seized relevant material viz. photos of P.W.1, attendance register, etc. and prepared Ex.P8- rough sketch of the scene, and further investigation was taken over by P.W.8-the then Inspector of Police, A.C.B., who examined and recorded statements of relevant witnesses, and after completion of investigation, laid the charge sheet.

#3. The charges framed against the accused are as follows: demanded

“FIRSTLY, That you being a public servant working as Jr. Asst. Apprenticeship Adviser, Govt. ITI for Boys, 6.2.1998 Anantapur, U.Chandrasekhar, Man Mazdoor, Workshop Divn., Irrigation Dept., Garladinna, Anantapur, as illegal gratification other than legal remuneration to do the official facour viz. to scrutiny his application for examination of All India Trade Test in Draughts Man (civil), Rs.3,000/- and on his expressing inability to pay, you reduced the same to Rs.1,000/- and in pursuance of your earlier demand, demanded and accepted in your office the bribe amount of Rs.1,000/- from said U.Chandrasekhar for the abovesaid purpose as illegal gratification other than legal remuneration as a motive or reward for doing an official favour and thereby you committed an offence punishable under sec.7 of Prevention of Corruption Act, 1988 and within my cognizance. SECONDLY, That you being a public servant working as Jr. Asst. Apprenticeship Adviser, Govt. ITI for Boys, Anantapur, on the dates, time and place as mentioned in the charge no.1, by corrupt or illegal means or otherwise abusing your position as such public servant, demanded and obtained for yourself a pecuniary advantage to the extent of Rs.1,000/- in pursuance of your earlier demand on 6.2.98 from U.Chandrasekhar for the abovesaid purpose and thereby committed an offence specified under sec. 13(1)(d) punishable u/s. 13(2) of Prevention of Corruption Act, 1988 and within my cognizance.” When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried.

#4. To substantiate its case, the prosecution examined P.Ws. 1 to 8 and got marked Exs.P1 to P14, besides case properties M.Os. 1 to 9. D.Ws. 1 and 2 were examined and Ex.D1 was marked, on behalf of the accused.

#5. The trial Court, accepting the evidence of P.W.1, found the appellant guilty of the offence punishable under Section 7 of the Act, and accepting the evidence of P.Ws. 2 and 7 with regard to recovery of M.O.1-tainted amount from the possession of the appellant, found him guilty of the offence under Section 13(1)(d) read with 13(2) of the Act, and accordingly convicted and sentenced him as stated supra. Challenging the same, the present appeal is preferred by the appellant/accused.

#6. Now, the point for determination is, whether the prosecution proved its case beyond reasonable doubt for the charges levelled against the appellant/accused and whether the judgment of the trial Court is correct, legal and proper ?

#7. The learned senior counsel Sri T.Bali Reddy, appearing for the appellant contended that, P.W.1 is not wholly truthful witness and he filed Ex.P1-application suppressing required information with a view to write examination though he was not eligible to write Draughtsman (Civil) Trade test as he was not having 5 years of experience; that, D.W.1 and another were present admittedly at the time of trap, but they were not examined, and that, though they were examined and their statements were recorded during the course of investigation, their statements have not been filed in the court and they were not cited as witnesses; that, as the appellant refused to recommend the application of P.W.1, he bore grudge and at the instance of P.W.3, who was in inimical terms with the appellant, set the Anti Corruption Bureau in motion; that, after receipt of photographs from P.W.1 by the appellant, P.W.1 thrusted the amount into the shirt pocket of the appellant; that, the evidence of D.Ws. 1 and 2 would clearly go to show about the thrusting of the currency notes into the shirt pocket of the appellant; that, the appellant is not the approving authority of the application of P.W.1 and that there was no official favour to be shown by the appellant to P.W.1 was pending as on the date of trap; that, the investigating officer has not examined any other applicants whose applications were pending with the appellant as on the date of the trap to know whether the appellant demanded any amount from them to write favourable remarks on their respective applications; that, the trial Court has not appreciated the evidence on record in right perspective and came to wrong conclusions. Hence, he prayed to set aside the convictions and sentences.

#8. On the other hand, Mr. V.Ravi Kiran Rao, learned counsel appearing for the A.C.B., contended that, the application of P.W.1 along with 18 other applications were admittedly entrusted to the appellant for scrutiny and that a favour of writing favourable remarks by the appellant in favour of P.W.1, was pending; that, for that reason, there was scope for the appellant to demand certain amount; that, P.W.1 has no grouse or enmity with the appellant so as to implicate him in a false of case of this nature; that, the appellant is not the allowing or rejecting authority, but he had to scrutinize the applications; that, no rules or instructions are filed to show the eligibility for writing Draughtsman (Civil) Trade Test; that there is no evidence to show about the strained relationship between the appellant and P.W.3; that, after receipt of the currency notes, the appellant counted the same and kept the same in his shirt pocket, and when sodium carbonate solution test was conducted, the solution turned into thick pink colour in respect of the right hand fingers, and in respect of left hand fingers, the solution turned into pink colour; that the amount has been seized from the possession of the appellant; that the thrusting theory cannot be accepted as there is no spontaneous explanation by the appellant to P.W.7 at time of writing Ex.P7-post-trap proceedings; that, any illegality in not examining the other 18 candidates to know whether the appellant demanded any amount from them, has no effect on the prosecution case; that after analyzing the evidence, the trial court rightly found the appellant guilty and there are no grounds to interfere with the judgment of the trial court. Hence, he prayed to dismiss the Criminal Appeal.

#9. There cannot be any dispute that if the accused accepts from any person the gratification other than legal remuneration as a motive or reward for doing or showing an official act in the exercise of his official functions, then it is an offence punishable under Section 7 of the Act. Similarly under Section 13 (1) (d) of the Act, if he by corrupt or illegal means obtains from any person any valuable thing or pecuniary advantage without any public interest, it is an offence.

#10. P.W.1 was working as Man Mazdoor, which is a labour post, in Public Works Department, at Garladinna. He passed 10th class. It is not in dispute that to get promotion as Work Inspector in Irrigation Department, one has to pass All India Trade Test in Draughts Man (Civil) Trade. It is also not in dispute that P.W.1 appeared for Mechanical Trade Test, which was conducted in the year 1995. P.W.4 retired as the Assistant Director, Department of Employment and Training. He worked as Principal, Government I.T.I. for Boys, Anantapur at the relevant point of time of the incident. He stated that for appearing the Test for Draughts Man (Civil), experience of five years is required and if the candidate has not put up five years experience, his application would be rejected. But, except the oral testimony of P.W.4, no rules or instructions issued by the competent authority, are filed to show that the minimum experience required for writing examination of Draughts Man (Civil) Trade test is five years or that if a person writes the examination of any other trade, he was not eligible for writing for Draughts Man (Civil) Trade test. The evidence of P.W.4 cannot be accepted as gospel truth because he is not rejecting or admitting authority of applications received for writing examination. Admittedly, the Regional Deputy Director of Apprentice, Tirupati is the competent authority to reject applications, if they are found to be not in order or not in accordance with the rules or instructions issued in this regard. Whether P.W.1 is eligible or not to write the All India Trade Test in Draughts Man (Civil) in the year 1997, is a matter to be considered by the Regional Deputy Director of Apprentice, Tirupati.

#11. P.W.1 filed Ex.P1-appliation along with enclosures in the office of the accused and thereafter his application was forwarded to the Regional Deputy Director, Tirupati, but for verification purpose, the application was sent back to P.W.4. The appellant was entrusted with scrutiny of 19 applications including the application of P.W.1, and the other applications were entrusted to some other officer, for scrutiny. The evidence of P.W.3 would go to show that, as per Ex.P9, application of P.W.1 and others were returned for verification. P.W.4 stated that the application entrusted appellant taking acknowledgement. Ex.P9 contains endorsement of the appellant. So, it is not in dispute that the application of P.W.1 was entrusted to the appellant for verification. According to P.W.1, on 27.1.1998, he went to the office of the Principal, Anantapur I.T.I. to find out as to what happened to his application; that, he met P.W.3, Superintendent of the office, who instructed him to meet the appellant, and accordingly, he met the appellant on the same day, who asked him to meet after one week. It is the further evidence of P.W.1 that on 6.2.1998, he again went to the office and met the appellant at 3.00 PM; that, after verifying his application, the appellant stated that his two passport photographs were required and that if the appellant had to verify and recommend for issuance of necessary hall ticket to him, he had to pay Rs.3,000/- to the appellant for writing favourable order; that, on that, P.W.1 replied that he had no capacity to pay such huge amount and after bargaining, the appellant reduced it to Rs.1,000/-; that, since he was unwilling to pay the said amount, on the same day i.e. 6.2.1998 at about 5.00 PM, he met P.W.7-the then Deputy Superintendent of Police, A.C.B. and lodged Ex.P2-report; that, he was asked to come on the next day along with currency notes.

#12. It is clear from the evidence of P.W.7 that, after instructions from the higher officials, P.W.7 registered the case on 7.2.1998. P.W.7 secured presence of P.W.2 and others and drafted Ex.P4-pre-trap proceedings duly noting down the denomination of the currency notes and its numbers, and also smearing of phenolphthalein powder to the currency notes. It is the further evidence of P.W.1 that, he went to the office of the appellant and the trap party members followed him closely; that, when he entered into the office room of the appellant, on seeing him, the appellant asked him whether he brought necessary photographs, received the same and kept the same in his right side table drawer. He specifically stated that except the appellant, no other person was present in the office room; then the appellant questioned him whether he brought the amount of Rs.1,000/- demanded earlier and on that the P.W.1 took out the currency notes from his shirt pocket and gave it to the appellant, who counted the same and kept in his left shirt pocket, and stated that he would verify the application and forward the application to the concerned authorities with favourable remarks. P.W.1 further stated that, then, he came out from the building and gave the pre-arranged signal. The trap party led by P.W.7 entered into the office room of the appellant, and when both hand fingers of the appellant were subjected to sodium carbonate solution test, the solution in respect of the right hand fingers turned into thick pink colour whereas the solution in respect of the left hand fingers turned into pink colour. Thereafter M.O.1-tained currency notes were seized, and when the inner lining of the left side shirt pocket of the appellant was also subjected to sodium carbonate test, the solution turned into pink colour. Ex.P7 is the post trap proceedings.

#13. As rightly contended by the learned senior counsel appearing for the appellant, with regard to demand and acceptance, there is no evidence except the solitary testimony of P.W.1. The law is well settled that when the case rests upon solitary testimony of a witness, it must be unimpeachable, true, trustworthy, and reliable. If the evidence of P.W.1 is put in the category of wholly reliable, then the law does not require that his evidence should be corroborated on material particulars and it can be acted upon even without any corroboration. If the evidence of P.W.1 is partly reliable and partly unreliable, then only his evidence should be corroborated on material particulars, either direct or circumstantial evidence. Though the appellant was working in the same office of the accused, there is no evidence which would go to show that there were ill feelings between the appellant and P.W.1. It is suggested to P.W.1 that P.W.1 apprehended that the appellant would put him in trouble by exposing his suppression of the fact and also about false certificate obtained from the Deputy Executive Engineer, which was enclosed to the application, he got laid the present false trap, but the said suggestion is denied. There is no evidence to show that P.W.1 obtained a false certificate from the Deputy Executive Engineer or that the appellant threatened him to expose the suppression of the fact. If any material aspects have been suppressed by P.W.1 in Ex.P1-application, the same may be noted by appellant during scrutiny because he is not the rejecting or approving authority of the application and he is only a scrutiny officer with regard to filling up of the columns in the application. By the date of the trap, admittedly, the application of P.W.1 along with other applications were under the scrutiny of the appellant. Since P.W.1 was working in the same office, there was scope for him to know pendency of the application with the appellant. As a matter of fact, P.W.1 stated that he came to know from P.W.3 that the application was pending with the appellant. Therefore, there was every possibility for P.W.1 to approach the appellant on 6.2.1998 and make a request to forward the application. At that time, the appellant asked him furnish two passport size photographs and also demanded to pay Rs.3,000/- and after bargain the amount was reduced to Rs.1,000/-. The official favour to be shown by the appellant to P.W.1 is putting a favourable note in Ex.P1-application.

#14. The evidence of the investigating officer would, no doubt, go to show that he examined the witnesses in the office of the appellant about P.W.1 visiting the office, but no staff members corroborated the meeting of P.W.1 with the appellant on 27.1.1998 or the visit of P.W.1 to meet the appellant on 6.2.208 on which date the appellant allegedly demanded the bribe. P.W.3 stated that in the room of the accused, only Typist would be there along with him, and in the office of the Superintendent, five or six employees would be there. Therefore, in such a case, there was no scope or possibility for any other staff members to see P.W.1 meeting the appellant on 6.2.1998 or one week prior thereto, except the Typist. It is not specifically stated by the investigating officer that he examined the said Typist and that the said Typist also stated to him that he did not see P.W.1 meeting the appellant. Therefore, on that ground, it cannot be said that P.W.1 has not met the appellant on 6.2.1998.

#15. There was a purpose for P.W.1 to meet the appellant. The purpose is to obtain a favourable note on his application Ex.P1. Such is the case, there is every reason for the appellant to demand certain amount for showing the official favour. Though he is not the competent authority to reject or accept the application, certainly as scrutiny officer, the appellant has to make his comments on the application as per rules and instructions. In such a case, the evidence of P.W.1 that the appellant demanded in the first instance Rs.3,000/- and later, on bargain, it was reduced to Rs.1,000/- for writing favourable note on the application, is acceptable. Unless there is strong reason or motive for P.W.1 to foist a false case of this nature against the appellant, his evidence cannot be brushed aside lightly. There is no reason for P.W.1 to foist a false case of this nature against the appellant. The suggestion given to P.W.3 is that at his instance a false case is foisted against the appellant as P.W.3 was having ill-feelings with the appellant. Even that is not substantiated with any other evidence. There is no direct or circumstantial evidence to show that there were ill-feelings or bitter enmity between P.W.3 and the appellant so as instigate P.W.1 to lay a false trap by using the machinery of Anti Corruption Bureau.

#16. No doubt, the columns in Ex.P1 have to be filled in by candidates in their own hand-writing. But, there is no column with regard to disqualification or requirement of five years experience for writing Draughts Man (Civil) Trade Examination. They are required to furnish the details of previous hall ticket and original provisional certificate. If a candidate appeared for All India Trade Test previously he is required to furnish the month and year of examination and subjects in which exemption is granted. Name of the center and the trade in which the applicant desired to take the test have to be furnished from enclosing other academic and technical qualifications and the Character Certificate from the employer, along with the list of certificates mentioned therein. As per the instructions in Ex.P1, the candidate should not be below 21 years of age as on 1.1.1998 and should have five years’ of experience in any of the establishments. So, as per the instructions, only five years’ experience is required in any establishment and there is no bar for writing the Draughts Man (Civil) Trade test when the candidate had already written the Draughts Man Mechanical Trade Test. Therefore, the evidence of P.W.4 that if a person who applied for mechanical test is disqualified for writing Draughts Man (Civil) Trade Test cannot be accepted. Hence, there is no reason to doubt the testimony of P.W.1. In the light of the above and as P.W.1 withstood test of cross-examination, his evidence can be put in the category of wholly reliable.

#17. Coming to the receipt of currency notes, the evidence of P.Ws. 2 and 7 is relevant. They have categorically stated that, after receipt of pre-arranged signal from P.W.1, they entered into office room of the appellant and subjected both hand fingers of the appellant to sodium carbonate solution test, and the solution in which the right hand fingers were rinsed, turned into thick pink colour and the solution in which the left hand fingers were rinsed, turned into pink. In Ex.P7-post-trap proceedings, there is no spontaneous explanation given by the appellant to show that P.W.1 thrusted the money into the shirt pocket of the appellant. The inner lining of the shirt pocket of the appellant was also subjected to sodium carbonate test and it also turned into pink colour. The denomination and numbers of M.O.1-currency notes, as produced by the appellant, were found tallying with the numbers and denomination of currency notes as noted in Ex.P4-pretrap proceedings. So, from the evidence of P.Ws. 2 and 7, it is clear that M.O.1-tainted currency notes were seized from the possession of the appellant i.e. from his shirt pocket. The evidence of P.Ws. 2 and 7 is completely in corroboration with the recitals in Ex.P7-post trap proceedings. The objective findings in Ex.P7 can be taken as evidence.

#18. One of the contentions raised by the learned senior counsel appearing for the appellant is that P.W.8, who is the investigating officer, did not examine the 18 other applicants to cross-check the version of P.W.1 about the alleged demand of money. No doubt, the investigating officer ought to have examined the other applicants whose applications were pending with the appellant, to know whether such a demand was made by the appellant to any one of the said applicants. But, some irregularities committed by the investigating agency in conducting investigation, cannot be a ground to disbelieve the entire prosecution version, especially when the evidence of P.W.1 is found to be true and trustworthy.

#19. The appellant, having taken the plea that P.W.1 thrusted the amount in his shirt pocket, it is for him to plead and establish the same. To substantiate his defence, the appellant examined D.Ws. 1 and 2 were examined, who stated that P.W.1, after giving passport size photographs, thrusted the amount into the shirt pocket of the appellant. According to the learned senior counsel appearing for the appellant, these two persons were present and as a matter of fact, presence of D.W.1 and another has been clearly mentioned in Ex.P7- post trap proceedings. Though the investigating officer examined and recorded their statements, they were neither cited as witnesses nor examined in court nor produced their statements recorded under Section 161(3) Cr.P.C. As seen from Ex.P7, it is clear that D.W.1 and another entered into the room of the appellant just prior to the arrival of raid party led by P.W.7. In the first instance, D.W.1 and another stated before the investigating officer that they have not witnessed anything which transpired between P.W.1 and the appellant. Though it is not admissible under law, because it amounts to a hear-say, at the same time, the evidence of P.W.1 would go to show that when he entered into the room of the appellant, no one was present except the appellant. Therefore, the evidence of D.Ws. 1 and 2 cannot be accepted. Further, P.W.1 has not witnessed anything when P.W.1 and the appellant were talking in the room of the appellant. Such is the case, the theory of thrusting of the money cannot be accepted. The burden placed on the appellant has not been discharged to show that the amount was thrusted into his shirt pocket. If really, P.W.1 thrusted the amount into the shirt pocket of the appellant, then the appellant would have raised cries and would have come out from the office to lodge a protest against P.W.1 before the Principal or the competent authority. But, he had not done so. When the trap party entered into the room, he was sitting coolly in the chair. Similarly, when the appellant was questioned by P.W.7, he would have stated to him that the amount was thrusted into his shirt pocket. But, the appellant did not give any spontaneous explanation with regard to presence of M.O.1 in his shirt pocket. No doubt, whatever explanation that may be given by the appellant may not be admissible evidence, but to show his conduct, it can be taken as one circumstance to show that he did not accept the amount as bribe. In view of the fact that D.W.1 and other witnesses were not eye- witnesses to the trap incident, they were not cited as witnesses and so, their non-examination does not in any manner affect the main fabric of the prosecution case. Therefore, there is no reason to disbelieve the evidence of P.Ws. 2 and 7 with regard to recovery of tainted currency notes from the possession of the appellant. As the plea of thrusting of money has not been established by the appellant, the trial Court rightly rejected the same. On proper appreciation of the evidence on record, the trial Court rightly found the appellant guilty. None of the findings is shown to be illegal or incorrect or not based upon any evidence, and so, there are no grounds to interfere with the same.

#20. In the result, the Criminal Appeal is dismissed confirming the judgment dated 19.10.2002 in Calendar Case No.23 of 1998 on the file of the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court at Hyderabad. ------------------- (K.C.Bhanu, J.)

18.08.2009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1198 OF 2002

18.8.2009 THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1198 of 2002 Date: 18.8.2009 G.Venkata Reddy v. State, A.C.B. …Appellant …Respondent