*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.1540 of 2004 % 08-07-2011 #State : A.C.B rep. by Inspector of Police, A.C.B, City Range-II, Hyderabad ….Appellant Vs. $ P.Somaraju …. Respondent !Counsel for the Appellant : Sri R.Ramachandra Reddy Counsel for the Respondent: Sri C.Padmanabha Reddy for Sri C.Praveen Kumar <Gist : >Head Note: ? Cases referred: 1. (2007)4 Supreme Court Cases 415 2. (2006)10 Supreme Court Cases 313 3. (2003)12 Supreme Court Cases 606 4. (2002)6 Supreme Court Cases 470 5. 1992 Cri.L.J 608 6. AIR 1995 Supreme Court 2178 7. 2001 AIR SCW 2415 8. 1988 Cri.L.J 1122 9. 2004(1) ALT (Crl.) 269 (A.P) 10. 2001 Cri.L.J 175 11. (2004)6 Supreme Court Cases 488 12. AIR 2010 Supreme Court 1589 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1540 of 2004 DATE: 08.07.2011 Between: State : A.C.B. rep. by Inspector of Police, A.C.B, City Range-II, Hyderabad …… Appellant And P.Somaraju, Asst. Commissioner of Labour Circle-I, Hyderabad …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1540 of 2004 JUDGMENT : The accused/respondent was working as Assistant Commissioner of Labour, Circle-I, Hyderabad during the relevant time. The Principal Special Judge for S.P.E and A.C.B cases, Hyderabad by judgment dated 28.11.2003 in C.C. No.13 of 1999 acquitted the accused of the offences punishable under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, (in short, the Act). Questioning the said acquittal, the State preferred this appeal. 2) P.W-1 was a Labour Contractor and was having two labour contract establishments under the names and style of Sindhu Enterprises and Swetha Enterprises at Hyderabad. He was having licences for his two establishments under the Contract Labour (Regulation and Abolition) Act, 1970. P.W-3 is son of P.W-1’s brother. P.W-3 was also having licence for his contract labour establishment run under the name and style of Tirumala Enterprises. During the year 1997, both P.W-1 and P.W-3 applied for renewal of their respective licences for their respective establishments to the accused. Ex.P-5 is application for renewal of licence of Tirumala Enterprises of P.W-3. Exs.P-6 and P-7 are applications for renewal of licences of Swetha Enterprises and Sindhu Enterprises respectively belonging to P.W-1. The licences were sought to be renewed for the year 1997-98. It is stated that P.W-1 also produced wages, attendance and bonus registers to the accused for verification. It is alleged that after verifying the registers, the accused instructed P.W-1 to come later and that on 25.09.1997 P.W-1 met the accused and requested him for renewal of licences, for which the accused demanded bribe of Rs.9,000/- from P.W-1 and threatened P.W-1 to keep the file pending without renewing the licences unless the demanded bribe amount is paid and that when P.W-1 paid bribe of Rs.3,000/- the accused demanded for payment of remaining bribe amount of Rs.6,000/- in two days. With the said allegations, P.W-1 gave Ex.P-1 report dated 26.09.1997 to P.W-7 Deputy Superintendent of Police, Anti Corruption Bureau (A.C.B), Hyderabad. After issuing Ex.P-12 F.I.R on the basis of Ex.P-1 report, P.W-7 organised trap for the accused in the presence of mediators including P.W-2. P.W-2 is the then office superintendent in the Directorate of Insurance And Medical Services, Hyderabad. Before proceeding for the trap, pre-trap procedures were conducted under the cover of Ex.P-2 mediators’ report on 26.09.1997. It is alleged that the trap was successful and that the accused was caught with possession of M.O-1 tainted currency notes of Rs.6,000/- which was demanded and accepted by the accused. Plea of the accused is one of not guilty. It is his contention that in his absence M.O-1 tainted cash was dropped by P.W-1 in his office table drawer. The lower Court, by the impugned judgment, accepted the defence version and found the accused not guilty of the charges. 3) In this appeal, the Special Public Prosecutor contended that the lower Court did not appreciate the evidence on record in the right perspective and came to an erroneous conclusion in favour of the accused even though abundant material was let in by the prosecution in support of its case and that this appellate Court has to appreciate the material on record afresh by making thorough scrutiny of the evidence and that there are no valid circumstances to accept the defence version. On the other hand, it is contended by the senior counsel for the respondent/accused that when the trial Court acquitted the accused on merits, there is reinforcement of innocence of the accused and that scope of scrutiny by the appellate Court against an order of acquittal is limited and that the appellate Court will be slow in interfering with acquittal recorded by the trial Court unless finding of the lower Court is highly unreasonable or manifestly unjust or perverse. 4) In Chandrappa V. State of Karnataka[1], the Supreme Court culled out powers of the appellate Court in an appeal against an order of acquittal and enunciated as follows: “(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” In Kallu V. State of Madhya Pradesh[2], the Supreme Court observed that in an appeal against acquittal the appellate Court will not reverse decision of the trial Court merely because a different view was possible, in case the view taken by the trial Court is reasonable and plausible. It is further laid down therein that if the appellate Court decides to interfere, it should assign reasons for differing with decision of the trial Court. I n Ramanand Yadav V. Prabhunath Jha[3], while observing that there is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based, the Supreme Court cautioned that paramount consideration of the Court is to ensure that miscarriage of justice is prevented and that a miscarriage of justice which may arise for acquittal of the guilty is no less than from the conviction of an innocent. I n Harijana Thirupala V. Public Prosecutor[4], the Supreme Court further cautioned that the High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial Court it would have proceeded to record a conviction, and that a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial Court to acquit the accused and then to dispel those reasons. With this legal background, I initiate scrutiny of evidence let in by both the parties in the lower Court in support of their respective contentions. 5) Ex.P-9 is mediators’ report for post-trap proceedings. P.W-2 and P.W-7 speak to contents of the same. During post- trap proceedings, when both hand fingers of the accused were dipped in sodium carbonate solution, there was no change in colour of that solution. It was the first circumstance relied upon by the lower Court in favour of the accused. Ex.P-9, after incorporating the said fact, further reads that when P.W-7 questioned the accused whether he demanded and accepted bribe amount from P.W-1, the accused stated that he neither demanded nor accepted bribe amount from P.W-1 and that he was present at his office table during the period from 5.00 P.M when P.W-1 entered into his room upto 5.30 P.M when P.W-1 left his room. This statement of the accused is relevant under Section 8 of the Indian Evidence Act. The accused did not plead that he went into bath room while P.W-1 was sitting in his chambers. Evidence of D.Ws 1 and 2 is contrary to this relevant piece of evidence recorded at the earliest point of time. 6) The trap party could locate M.O-1 tainted cash of Rs.6,000/- from table drawer of the accused when P.W-1 informed the same to the trap party. It is evidence of the decoy witness as P.W-1 before the trial Court that one of the two mediators by name Rajender (P.W-2) was instructed by P.W-7 to accompany him and that both he and P.W-2 entered into office of the accused, but P.W-2 sat on stool intended for seating of the office attender located at entrance of room of the accused. P.W- 1 alone entered into office room of the accused during the course of trap. He says that when he went into that room the accused was alone in the room and that on seeing the accused he enquired about his licences and that the accused asked him whether he brought the amount demanded by him and that he answered in the positive and picked out tainted currency notes from his shirt pocket and offered to give the same to the accused and that the accused opened table drawer and asked him to place the amount in the table drawer and that accordingly he kept the amount in the table drawer and that thereafter the accused called Abbas, attender (P.W-4) and instructed him to bring licences which were with senior assistant Gopalarao (P.W- 5) and that accordingly P.W-4 went and brought the licences within few minutes and that the accused signed in the said licences in his presence and instructed P.W-4 to hand over those licences to P.W-5. P.W-1 collected those licences from the seat of P.W-5 on the instructions of the accused. Since the accused did not receive M.O-1 tainted cash into his hand during the trap and directed P.W-1 to drop the currency notes into his table drawer, which directions were followed by P.W-1, hand fingers of the accused were not tainted with phenolphthalein powder sprinkled on M.O-1 currency notes. Failure of hand fingers dipped in sodium carbonate solution turning pink during post trap proceedings is not decisive to the affect that the accused did not accept M.O-1 tainted cash from P.W-1. Tainting of currency notes with phenolphthalein powder and decoy witness paying the said tainted currency to the accused towards bribe in pursuance of his demand and thereafter turning hand finger washes of the accused in sodium carbonate solution into pink, is one of the methods of nabbing the accused with acceptance of bribe amount by way of a trap. In order to avoid the same, some public servants adopt several methods of collection of bribe amount instead of receiving the bribe amount with their hands and keeping the same in their pockets. One such method is directing the victim/decoy witness to drop the tainted currency into table drawer or into brief case or into any other place to which the accused alone has got accessibility so that he can pick up the said dropped amount conveniently at a later point of time. If such methods are adopted by clever public servants, then the routine method of phenolphthalein powder and sodium carbonate solution and turning hand fingers as well as pockets of the accused into pink, becomes not possible. From the fact that hand finger rinses of the accused not turning pink in sodium carbonate solution, it cannot be taken as a circumstance which disproves the prosecution case. Though investigating agency may be unsuccessful in nabbing the culprit by adopting such method in certain cases, the prosecution is not precluded from proving that the accused demanded and accepted bribe amount by leading other evidence. 7) There is no dispute that Exs.P-5 to P-7 applications for renewal of licences under the Contract Labour (Regulation and Abolition) Act, 1970 were pending with the accused. Those applications relate to Tirumala Enterprises of P.W-3 and Swetha Enterprises and Sindhu Enterprises of P.W-1. P.W-1 was looking after on behalf of P.W-3 also as P.W-3 happened to be his brother’s son. It is contended for the respondent/accused that there was no necessity for either P.W-1 or P.W-3 to go round office of the accused for renewal of contract labour licences, because even as per P.W-1’s evidence there is a deeming clause in the Rules which renews contract labour licences automatically in case the application for renewal is not disposed of within a particular period of making the application. The said deeming clause is contained in Rule 29 of the Contract Labour (Regulation and Abolition) Central Rules, 1971. The said Rule reads as follows: “29 Renewal of licence: (1) Every contractor shall apply to the licensing officer for renewal of the licence. (2) Every such application shall be in Form VII in triplicate and shall be made not less than thirty days before the date on which the licence expires, and if the application is so made, the licence shall be deemed to have been renewed until such date when the renewed licence is issued. (3) The fees chargeable for renewal of the licence shall be the same as for the grant thereof: Provided that if the application for renewal is not received within the time specified in sub-rule (2), a fee of 25 per cent in excess of the fee ordinarily payable for the licence shall be payable for such renewal: Provided further that in case where the licensing officer is satisfied that the delay in submission of the application is due to unavoidable circumstances beyound the control of the contractor, he may reduce or remit as he thinks fit the payment of such excess fee.” As per Rule 29(2), in case renewal application is made, the licence is deemed to have been renewed “until such date when renewed licence is issued”. The said deeming provision is limited to the period of pendency of renewal application before the licencing authority. There is no deeming provision in Rule 29 as if the licence is renewed in case application for renewal was not disposed of within any statutory period. In case renewal application of the licence holder is rejected by the licencing authority, then deeming provision under Rule 29(2) ceases to operate, since the said deeming provision is operative during pendency of renewal application only and does not extend beyond the period of disposal of the renewal application. Therefore, necessarily labour contractors have to apply for renewal of their licences periodically and have to get their licences renewed for further period. 8) It is further contended for the respondent/accused that contractors never bothered about their renewal of licences after the said applications for renewal of their licences. P.W-5 deposed in cross-examination that no contractor attends their office for taking delivery of the renewed licences and that they would lie with their office only in some cases for years together. He further says that P.W-1 after remittance of renewal fees during the years 1994, 1995 and 1996 never appeared and that for the first time P.W-1 came to their office on the date of trap to take renewed licence. P.W-5 admits that the accused instructed them to issue notices for production of records of all the contractors including P.W-1 and to keep all the licences ready if renewal licence fees is remitted. It is evidence of P.W-1 that in June, 1997 he applied for renewal of licences in respect of Swetha Enterprises and Sindhu Enterprises and paid necessary fees and that he met the accused in June, 1997 and requested him to renew his licences and that the accused asked him to bring attendance register, wages register, bonus register and accordingly he took those registers to the accused who verified them and also signed in them and returned them to him and that in spite of it the accused did not renew his licences and was postponing renewal of licences on some pretext or the other and that the accused postponed renewal of licences for about three months and that when he met the accused on 25.09.1997 in his office with a request to renew his licences, some arguments took place between them and that the accused demanded bribe of Rs.9,000/- for renewing the licences and that when he informed the accused about he having only Rs.3,000/- with him and offered to pay the same, the accused opened his table drawer and asked him to put the amount of Rs.3,000/- in that table drawer and that accordingly he kept the amount and the accused asked him to bring the remaining amount of Rs.6,000/- in one or two days. Nobody else was with P.W-1 during that time. 9) The lower Court failed to note the fact that previously there was no practice of labour contractors going round office of the licencing authority for renewal of their licences. Rule 29 does not contemplate the licencing authority to make any enquiry before renewing the licence of a labour contractor. The questions to be considered at the time of renewal of licence are whether renewal application was filed in time with the prescribed fees in the prescribed proforma and if the application was filed beyond time, whether late fees was paid along with such late application. Giving of notices to all the labour contractors who applied for renewal of their licences and directing them to produce their books etc., for such renewal, are not contemplated by the Rules. In spite of it, the accused invented a new procedure and started giving notices to all the labour contractors directing them to produce their registers. Such notices can be given to the labour contractors in case any statutory enquiry is contemplated at that stage. When the statute does not contemplate any enquiry at that stage, giving of such notices to the labour contractors and direction to them to produce their registers etc., is only with a view to see that labour contractors go round the accused as if an official favour is pending with the accused for renewal of their licences. The accused adopted this method with a view to keep the labour contractors in his grip so that he can exploit them with this creative procedure. The lower Court did not advert to the relevant provisions under the Contract Labour (Regulation and Abolition) Act, 1970 and the Rules of the year 1971 to infer the intentions of the accused by starting novel procedure of giving notices to all the labour contractors and directing them to produce their registers etc., and withholding the renewal applications without renewing the licences for more than three months. 10) P.W-5 deposed that out of three renewal files, one licence was already renewed and two licence files were pending as per Exs.P-5 and P-6 and that file of Sindhu Enterprises was already cleared. As per evidence of P.W-1, he paid Rs.3,000/- on 25.09.1997 out of the total demanded bribe amount of Rs.9,000/-. The total amount of Rs.9,000/- is stated to be the bribe for renewal of three licences. When P.W-1 paid Rs.3,000/-, one file out of the three files was cleared by the accused. This aspect of clearing of one file only out of three files of P.Ws 1 and 3 by the accused, was not taken note of by the lower Court. 11) The lower Court referred to evidence of D.Ws 1 and 2 mainly and came to the conclusion that there is possibility of P.W-1 dropping the tainted cash M.O-1 into table drawer of the accused during his temporary absence in his chambers when he went to bath room attached to his room. During post-trap proceedings the accused did not plead by way of spontaneous explanation about the said possibility. On the other hand, the accused stated that he was in his room from 5.00 to 5.30 P.M. when P.W-1 was in his room. Except denying demand and acceptance of bribe from P.W-1, there is no further explanation to the effect that when P.W-1 was in his chambers, he went into attached bath room for attending calls of nature leaving P.W-1 alone in his chambers. Even though spot explanation given by the accused during post-trap proceedings may be relevant under Section 8 of the Indian Evidence Act as spontaneous response or reaction of the accused, failure to give any explanation by the accused during post-trap proceedings may not prevent the accused from putting forward his pleas at subsequent stage of the criminal proceedings. For the first time, the accused put forward the theory of he going into bath room when P.W-1 came to his chambers, while giving Ex.D-2 explanation to P.W-8 on 28.01.1998. It was after 4 months of the trap. It has to be seen whether the accused was able to probabilise his defence from the evidence on record. The decoy witness as P.W-1 denied the suggestion that he placed M.O-1 tainted currency notes in the table drawer of the accused when the accused went into bath room. P.W-4 in cross-examination deposed that on 26.09.1997 at request of the accused he gave Ex.D-1 statement to the accused as to what happened on that day. The accused is not competent to make enquiry into his own affair. He says that he himself wrote contents of Ex.D-1 and signed it on 27.09.1997. P.W-4 did not speak to the contents of Ex.D-1, except stating that contents of Ex.D-1 are true. In further cross-examination by the Additional Public Prosecutor, P.W-4 stated that whatever he stated before A.C.B officials alone is correct but not the version in Ex.D-1. The said exercise of the accused obtaining Ex.D-1 letter from P.W-4 indicates that the accused tried to tamper the prosecution evidence by winning over the prosecution witnesses like P.W-4 during investigation. This aspect of the case was not taken notice by the lower Court. 12) D.W-1 is a Trade Union leader. He was president of Bakelite Hylam Limited Contract Workers Union. D.W-2 is an advocate. D.W-1 deposed that when he went to office of the accused at 5.15 P.M in connection with a case relating to payment of bonus to contract labours of his union, P.W-4 on enquiry informed him about completion of all cases by the accused and the accused going into bath room. D.W-1 says that he removed door curtain of chamber of the accused and found P.W-1 sitting on left side of seat of the accused and that the accused was not found in his seat. He says that D.W-2 was in the Varandah and that when he was talking with D.W-2, P.W-4 went inside chambers of the accused and that thereafter he also went inside the chambers of the accused and that at that time P.W-1 was alone sitting in the chambers of the accused and that the accused came out of the bath room and talked to P.W-1 with regard to registers and thereafter P.W-1 went away. D.W-2 deposed that on 26.09.1997 at about 5.10 P.M when he went to chambers of the accused for making representation in W.C case No.11 of 1997 and 13 of 1997, the accused was about to leave the chambers and was in standing position and that he enquired