*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.2077 of 2004 % 14-07-2011 #Trilok Chandra Maurya ….Appellant Vs. $ State rep. by C.B.I, Hyderabad …. Respondent !Counsel for the Appellant : Sri C.Padmanabha Reddy for C.Praveen Kumar Counsel for the Respondent: Sri P.Kesava Rao <Gist : >Head Note: ? Cases referred: 1. AIR 2010 Supreme Court 1589 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2077 of 2004 DATE: 14.07.2011 Between: Trilok Chandra Maurya …… Appellant And State rep. by C.B.I, Hyderabad …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2077 of 2004 JUDGMENT : The accused/appellant was working as Joint Controller of Finance and Accounts (Factories), Ordnance Factory at Yeddumailaram, Medak District. By Judgment dated 25.08.2004 in C.C. No.25 of 2001, the Special Judge for C.B.I Cases, Hyderabad convicted the accused of the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to rigorous imprisonment for one year and fine of Rs.20,000/- on both the counts separately. Aggrieved by the same, the accused filed this appeal. 2) P.W-3 was Manager in Sri Shankarappa & Co., of which P.W-8 is the proprietor. Shankarappa & Co., filed tender and obtained order for lifting Brass and Bronze swarfs in lot Nos.11 and 13 of Ordnance Factory, Yeddumailaram. They had to lift those lots by 20.09.2000. But, they could not do so for their own reasons. Therefore, P.W-3 on behalf of Shankarappa & Co, gave Ex.P-4 letter on 20.09.2000 to the General Manager of Ordnance Factory for permission by way of extension of time for three days to complete the work. It is alleged that the accused demanded for bribe of Rs.5,000/- from P.W-3 for giving extension of time of three working days, and asked him to pay the bribe amount at his house on 30.09.2000. In the meanwhile, P.W-3 came to know about the extension order on 25.09.2000 itself; and accordingly balance lot was lifted between 26.09.2000 and 28.09.2000. Subsequently Shankarappa & Co, applied for tender in respect of Bronze and Brass scrap (swarf) in respect of lot Nos.1 to 4 in Ordnance Factory and obtained the order in their favour. After lifting the scrap from lot Nos.1 and 2, when P.W-3’s people were about to lift scrap in lot No.3, P.W- 6/Additional General Manager of Ordnance Factory directed them to clear lot No.4 in the first instance and thereafter lift the material in lot No.3. According to the defacto-complainant/P.W- 1, lot No.4 contained scrap with full of mud and waste material. Therefore, P.W-3 wanted to remove the scrap from lot No.3 before going to lot No.4. P.W-3 applied for such permission on 17.10.2000 and 18.10.2000 as per Exs.P-7 and P-8 letters. But, no response was received by P.W-3 to the said letters. When P.W-3 intended to meet P.W-6 on this subject, P.W-6 did not permit P.W-3 to meet him at all. Therefore, P.W-3 approached the accused in that regard. It is alleged that when P.W-3 contacted the accused, the accused reminded him of his earlier demand for bribe of Rs.5,000/- and informed P.W-3 that if the said amount is given, he would manage P.W-6 and get the problem of lifting the material from lot Nos.3 and 4 solved and would ensure permission and extension of time to lift the remaining material, and that the accused insisted for payment of bribe of Rs.5,000/- on 19.10.2000. With the said allegations, P.W-3 and P.W-8 together gave Ex.P-1 report to P.W-5 Inspector of Police, Central Bureau of Investigation (C.B.I), Hyderabad. After issuing Ex.P-11 F.I.R on the basis of Ex.P-1 report, P.W-5 organised trap for the accused on 19.10.2000 itself. Before proceeding for the trap, pre-trap procedures were carried out in the presence of mediators including P.W-1 under the cover of Ex.P-2 first mediators’ report. P.W-1 was working as Officer in Andhra Bank, Somajiguda Branch during that time. It is alleged that the trap was successful and that the accused was caught red handed while in possession of M.O-1 tainted cash of Rs.5,000/-. Plea of the accused is one of not guilty. After trial, the lower Court found that the accused was guilty of both the charges. 2) In this appeal, it is contended by the appellant’s counsel that the prosecution could not prove necessary ingredients required under Section 7 or under Section 13(1)(d) of the Act and that there was no official favour either promised or extended by the accused to P.W-3 in respect of the second contract of Shankarappa & Co, and that even with regard to the alleged demand for bribe in respect of extension of time relating to first contract, there is no payment of the alleged demanded bribe. 3) There is no dispute about the factual scenario relating to both the works entrusted to Shankarappa & Co. The first work related to removal of Bronze and Brass scrap (swarf) from lot Nos.11 and 13 which work had to be completed by 20.09.2000. The second work relates to lot Nos.1 to 4 which was currently being executed by P.W-3 on behalf of Shankarappa & Co. In so far as the first work is concerned, admittedly P.W-3 could not lift the entire swarf from lot Nos.10 and 11 within the prescribed date of 20.09.2000. Therefore, P.W-1 put in Ex.P-4 letter on 20.09.2000 to the General Manager of Ordnance Factory for extension of time by way of three working days so that the entire work will be completed. It is in respect of the said favour, P.W-3 alleges that the accused demanded for bribe of Rs.5,000/- from him. P.W-3 deposed that as they did not receive any orders till 25.09.2000 on Ex.P-4, he caused enquiries and came to know that the file was with the accused and that when he met the accused, the accused demanded Rs.5,000/- and that therefore he returned back and enquired in the section who informed him that the extension was granted for three working days. According to P.W-3, the accused asked him to meet the accused on 30.09.2000 by giving his address and telephone number. Admittedly, by the date of alleged demand for Rs.5,000/- as bribe on 25.09.2000, P.W-3’s application Ex.P-4 was disposed of by the General Manager favourably. It is not evidence of P.W-3 that when the accused demanded for bribe of Rs.5,000/-, he agreed to pay the same to the accused or promised to pay the said bribe amount by 30.09.2000. In fact, P.W-3 did not say in his evidence that the said amount of Rs.5,000/- was demanded by the accused towards bribe or illegal gratification. He simply stated in his evidence that the accused demanded Rs.5,000/-. He did not state towards which head or towards what purpose the accused demanded Rs.5,000/-. Evidence of P.W-1 on this aspect is totally bald. The said demand for Rs.5,000/- of the accused was neither agreed to nor complied with by P.W-3. As pointed out earlier, even by the date of the alleged demand on 25.09.2000, P.W-3 got extension of three days as desired in Ex.P-4 letter. 4) Another interesting thing in this case is that the accused was not the authority to pass any order granting extension of time in respect of the work being executed by Shankarappa & Co. It was the General Manager who is competent to make such extension of time. It is evidence of P.W-2/Junior Works Manager, Maintenance and P.W-6/Additional General Manager that the General Manager constituted a committee consisting of Additional General Manager (Engineering), Additional General Manager (Material DCDA), Divisional Officer of E.M.M Section and General Manager himself. As head of the accounts section, the accused was also included in that committee. It is their evidence that the committee took decision to grant extension of three days time to Shankarappa & Co, for lifting entire material in two lots covered by the first work and that the General Manager made an endorsement of approval on Ex.P-5 letter of proposal to grant three days time by the Committee and that the letter was finally signed by the General Manager on 22.09.2000 itself. Thus, by the date of alleged demand on 25.09.2000, the subject matter was not pending either with the accused or with any officer or committee of Ordnance Factory as request of P.W-3 representing Shankarappa & Co was acceded by the Committee headed by the General Manager on 22.09.2000 itself. 5) Another interested feature in this case is that the accused made specific endorsement on the proposal of the committee to give extension of time for three days, to the following effect. “3 days time is already expired. No extension has been given by the management although the firm applied for it on 20.9.2K. A fresh approval of G.M is required to extend free deliver period upto 28.9.2K. Otherwise 2% ground rent will be charged”. The accused as Accounts head proposed to levy 2% ground rent on the contractor for not lifting the swarf material within the prescribed time. This endorsement was prior to 25.09.2000 and even prior to 22.09.2000. In those circumstances, it cannot be believed that the accused made a demand for any amount of Rs.5,000/- from P.W-3 for the purpose of extending time by three days for lifting swarf material from lot Nos.11 and 13 covered by the first contract. When the accused almost did disfavour to P.W-3 by making the above endorsement in writing on the proposal of the committee to extend time, it cannot be said that the accused intended to benefit himself by exploiting to Ex.P-4 letter for extension of time. 6) In so far as second episode relating to lot Nos.1 to 4 is concerned, the accused has no role to play as to which lot has to be cleared by the contractor in the first instance before proceeding to another lot. It was the Additional General Manager/P.W-6 who instructed P.W-3’s men to clear lot No.4 in the first instance instead of lot No.3. Since lot No.4 contained mud and rubble, P.W-3 was not interested in removing the said lot, but was interested in clearing lot No.3. In spite of P.W-3 giving Exs.P-7 and P-8 letters on 17.10.2000 and 18.10.2000, the General Manager did not pass any orders thereon. Even though P.W-3 wanted to meet P.W-6, he did not give any appointment to P.W-3 and did not show any inclination to meet P.W-3. According to P.W-3, in those circumstances, he contacted the accused. It is P.W-3’s evidence that the accused enquired him about the problem and that he explained the accused the problem and that the accused informed him that it is the look out of the stores and he was not concerned with it, but promised to enquire the matter with A.G.M. It is not P.W-1’s evidence that the accused promised to undertake P.W-3’s work by himself and promised to get the said work done. It is contended by the Special Public Prosecutor that in Ex.P-1 report, it was stated by P.W-3 that the accused stated that if the amount of Rs.5,000/- was given, he would manage P.W-6/A.G.M and get the problem of lifting the material solved and that he would also ensure permission and extension of time to lift the remaining material. The said allegations are conspicuously absent in P.W-3’s evidence. Ex.P-1 report cannot be substantive evidence by itself in a criminal case. It being a first information report given to the police officer under Section 154 Cr.P.C, it can be used only for the purpose of either corroborating or contradicting evidence of its maker. When P.W- 3 did not speak to the allegations contained in Ex.P-1 report, Ex.P-1 cannot be substituted to supplement P.W-3’s evidence in Court. When P.W-3 did not speak on oath before the trial Court, allegations in Ex.P-1 become otiose. Even as per P.W-3’s evidence, the accused made it clear to P.W-3 that he was not concerned with that subject. It is not the prosecution case that the subject relating to second contract of lifting lot No.3 or lot No.4 was within the purview of the accused as Joint Controller of Finance of Ordnance Factory. It was within the exclusive purview of P.W-6 as Additional General Manager. The accused only stated to P.W-3 out of courtesy that he would enquire the matter with P.W-6. Promise to enquire the matter with the concerned cannot be equated with promise to extend official favour. P.W-6 being a colleague, the accused is stated to have promised to broache the said subject with P.W-6. P.W-6 deposed in cross-examination that he did not have any access with the accused and that the accused never discussed with him on the subject of lifting the material. When the accused had no access with P.W-6 at all, the question of the accused getting the things done to P.W-3 from P.W-6 would never arise at all. From the material on record, it is evident that P.W-6 was a hard nut and was not allowing anybody to have access with him, whether a colleague or a contractor. Admittedly P.W-6 refused to meet P.W-3 when P.W-3 intended to meet him. It shows that grievance of P.W-3 was against P.W-6 only. Further, P.W-3 had grievance against the accused also because the accused wrote an adverse endorsement on Ex.P-5 proposal of the committee to extend three days time in respect of the first contract and recommended for collection of 2% of the amount towards ground rent. Overruling recommendation of the accused, the General Manager passed order dated 22.09.2000 extending time by three days for lifting the scrap relating to the first contract. Having the said motive in mind, P.W-3 who could not even met P.W-6, intended to attack the accused who gave access to P.W- 3 to meet him at his residence, and involved the accused into this trap on false allegations. 7) Even on the date of trap, when P.W-3 along with P.W-1 met the accused, the accused served them Tea and Biscuits and enquired about the problem of P.W-3. It is further evidence of P.W-3 that the accused told him in English that ‘everywhere there is a procedure’, for which he replied saying ‘Yes’, and that he told the accused ‘Layahu Sab’ and asked the accused whether he can give and that the accused nodded his head and that thereafter he gave the money to the accused who received the same with his right hand and kept the same in his shirt pocket. The entire detailed conversation between the accused and P.W-3 narrated by P.W-3 in his evidence does not disclose that there was any instant demand made by the accused even when P.W-3 paid M.O-1 tainted cash of Rs.5,000/- to the accused. 8) It is contended by the Special Public Prosecutor that when recovery of M.O-1 tainted cash from possession of the accused is proved by evidence on record, then the Court has to draw the presumption under Section 20(1) of the Act in favour of the prosecution. It is well settled principle of law that for drawing presumption under Section 20(1) of the Act, the prosecution has to establish demand as well as acceptance of bribe or illegal gratification by the accused (see Banarsidas V. State of Haryana[1]). In the case on hand, the prosecution has miserably failed to prove demand on the part of the accused for bribe. Further, mere receipt of M.O-1 cash by the accused cannot be equated with acceptance of the said amount as bribe. Neither the accused demanded for any bribe from P.W-3 nor the accused received M.O-1 from P.W-3 as bribe. At any rate, the presumption under Section 20(1) of the Act is to the limited extent of official favour and does not extend any more. The said presumption under Section 20(1) of the Act is a rebuttable presumption and it is open for the accused to rebut the said presumption. As pointed out earlier, in so far as the first contract is concerned, the fact that the accused made an adverse endorsement on Ex.P-5 proposal of the committee to extend three days time, proved positive that the accused never intended to extend any official favour muchless in fact extended any official favour to P.W-3 or Shankarappa & Co. In so far as the second contract of P.W-3 is concerned, admittedly there is no official favour pending with the accused by the date of trap. It is evident that P.W-3 by handing over M.O-1 tainted cash to the accused who gave access to P.W-3 to meet him at his residence, involved the accused in a false trap. I find that there was no official favour pending with the accused either on 25.09.2000 (alleged date of demand for bribe) or on 19.10.2000 (date of trap). 9) It is contended by the Special Public Prosecutor that the defence of the accused relating to two unknown persons attacking him with knife committing theft of Rs.4,600/- from his pocket and demanding him for extension of time for lifting the scrap, is a false defence put up by the accused as an after thought for the first time during trial in the lower Court. In fact, the said incident was not even suggested to P.W-3 muchless the said incident was referred when P.W-5 questioned the accused during post trap proceedings covered by Ex.P-3 second mediators’ report. I agree with the Special Public Prosecutor that the said defence is only an after thought and was introduced for the first time with D.Ws 1 and 6 in the trial Court. I have no hesitation to agree with the trial Court that the defence put up by the accused in this regard is not established. Simply because one of the defences set up by the accused is disbelieved, it does not follow that it proved or probabilised the prosecution case. The prosecution has to fall or stand on the merits of its own case and its own evidence. As pointed earlier, in this case, the prosecution has miserably failed to prove not only demand for bribe by the accused but also acceptance of M.O-1 cash by the accused as bribe and also existence of any official favour with the accused either in respect of the first contract or in respect of the second contract of Shankarappa & Co. The lower Court did not scrutinize P.W-3’s evidence in analytical manner and landed in erroneous conclusion. I do not agree with the reasoning and conclusion of the lower Court in this case. I find that the prosecution has failed to prove both the charges against the accused. 10) In the result, the appeal is allowed setting aside the convictions and sentences passed by the lower Court against the accused/appellant and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J July 14, 2011 NOTE: L.R.COPY TO BE MARKED (B/O)ksh [1] AIR 2010 Supreme Court 1589