IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 1864 of 2004 DATE: 29.06.2011 Between: Balaga Ajay Kumar …Appellant And State: rep. by Dy. Supdt., of Police, ACB, Eluru Range, Eluru ... Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 1864 of 2004 JUDGMENT : The accused/appellant was working as Municipal Commissioner in Tanuku Municipality, Tanuku of West Godavari District during the relevant time. The Special Judge for S.P.E and A.C.B cases, Vijayawada by judgment dated 27.07.2004 in C.C. No. 14 of 1997 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 sentenced him to simple imprisonment for two years and fine of Rs.2,500/- on each count separately. Aggrieved by the same, the accused filed this appeal. 2) P.W-1 was working as health assistant in Tanuku Municipality and holding full additional charge of the post of sanitary inspector since the time of retirement of the incumbent therein. P.W-1 put in an application Ex.P-1 seeking his promotion to the post of health inspector. The said application was addressed by P.W-1 to the Commissioner and Director of Municipal Administration, Andhra Pradesh, Hyderabad. It is alleged that after the accused joined as Municipal Commissioner, P.W-1 appealed to him many times about his promotion and the accused informed him about giving the promotion after formation of panel committee. It is specifically alleged that on 01.06.1996 P.W-1 requested the accused to consider his promotion and that the accused while informing him about the panel committee being formed would be considering his application, demanded bribe of Rs.50,000/- from P.W-1 and that in July, 1996 when P.W-1 requested the accused for promotion as panel committee was formed by then, the accused promised to give promotion to P.W-1 by dropping action on all charges which were pending against P.W-1 and reiterated his demand for bribe of Rs.50,000/- and that on 24.10.1996 at about 11.00 A.M P.W-1 along with P.W- 2 who is a municipal councillor approached the accused and requested him for his promotion and the accused demanded bribe of Rs.10,000/- reducing earlier demand of Rs.50,000/- on account of intervention of P.W-2 and asked P.W-1 to pay the demanded bribe on 26.10.1996. With the said allegations, P.W-1 gave Ex.P-2 report to P.W-4 Deputy Superintendent of Police, Anti Corruption Bureau (A.C.B), Eluru range on 25.10.1996. P.W-4 organised trap for the accused on 26.10.1996. Pre-trap procedures were conducted on that day in the presence of mediators including P.W-3 under the cover of Ex.P-5 mediators report. It is alleged that the trap was successful and the accused was caught red handed with M.0- 1 tainted cash of Rs.10,000/- in his office. Plea of the accused is one of not guilty. It is his specific contention before the lower Court that P.W-1 thrusted M.O-1 tainted cash into his hand and that when he refused to receive the same, P.Ws 1 and 2 prevented the accused from moving out of his office room until arrival of A.C.B. trap party. The lower Court, after full trial, found the accused guilty of the charges rejecting the defence version. 3) In this appeal, it is contended by the senior counsel for the appellant/accused that the lower Court should have seen that evidence of D.Ws 2, 4 and 6 substantiate the defence version and that they have no reason to support the accused. It is also contended that the lower Court did not properly appreciated the evidence of P.Ws 1 and 2 and came to an erroneous conclusion. 4) In so far as demand for bribe of Rs.50,000/- by the accused from P.W-1 on 01.06.1996 is concerned, the lower Court disbelieved the said incident on the ground that on 01.06.1996 the accused was on leave and was in out of station. The lower Court believed demands for bribe made by the accused on subsequent occasions. It is contended for the appellant that when genesis of demand on 01.06.1996 itself is disbelieved, the lower Court should not have believed demands said to have been made by the accused for bribe subsequently. It is well settled principle of law that falsity has to be separated from truth and that the Court while assessing evidence of a particular witness, cannot brand that witness as totally false witness since a piece out of several pieces of evidence spoken to by him is proved to be false. Even if a portion of evidence of P.W-1 is found to be false, the Court is at liberty to accept other portion of P.W-1's evidence in case it is found to be true and believable. 5) For the meeting of P.W-1 with the accused on 24.10.1996, there is evidence of P.W-1 as well as P.W-2. As pointed out earlier P.W-2 was one of the municipal councillors in Tanuku Municipality. It is evidence of P.Ws 1 and 2 that they met the accused in his room/chambers in the municipal office. According to the accused, on 24.10.1996 from 10.00 A.M onwards he was not in the office as he was away in a meeting. D.W-1 was examined to speak to the same. D.W-1 claims to be founder president of a voluntary social organisation by name 'Jatiya Vedika'. It is his evidence that on 24.10.1996 at 10.00 A.M Pragathi Orphan Home organised a function in connection with training to the beneficiaries who were identified by his organisation under Nehru Rozgar Yojana scheme and that the accused presided over that meeting which commenced at 10.00 A.M. and concluded at 1.00 P.M. According to D.W-1, it was a public function and apart from the accused municipal chairperson by name Avula Venkateswara Rao attended that function as chief guest. One Suryakantham from 'Mahila Vedika' is stated to have also attended the function as speaker. The lower Court did not place reliance on evidence of D.W-1 on the ground that there is no recorded proof for the said function. D.W-1 in cross- examination deposed that press people were not invited to that function and that though photos were taken, they were not available with him. When it was a public function and municipal chairperson who belongs to a political party attended that public function, it cannot be believed that press were not invited for the said function. It is not as if it was an official meeting conducted in-camera. It was stated to have been conducted for giving training to beneficiaries under Nehru Rozgar Yojana scheme. In those circumstances, absence of press at the alleged meeting creates lot of doubts on conducting the meeting itself. Assuming for a moment for the sake of argument that such meeting was scheduled on 24.10.1996 at 10.00 A.M, one cannot expect starting of a public function in which public figures attended promptly at 10.00 A.M. Therefore, the lower Court rightly disbelieved evidence of D.W-1 and accepted evidence of P.Ws 1 and 2 with regard to they meeting the accused in the office on 24.10.1996 between 10.00 and 11.00 A.M. 6) When P.W-1 was seeking promotion in the municipality, naturally after approaching the Commissioner and failing in its attempts, he would approach a councillor like P.W-2. It is evidence of P.Ws 1 and 2 that on 24.10.1996 when they met the accused in his chambers in municipal office and requested the accused to consider P.W-1's promotion, the accused stated that unless at least Rs.10,000/- was paid by 26.10.1996 he would not consider P.W-1' s promotion. 7) It is contended that P.W-1 was not eligible for promotion as several charges were pending against him and several memos were issued against him. P.W-1 admits that the accused initiated departmental enquiry against him on several charges and appointed municipal engineer as the enquiry officer. He also admits receiving of several memos and proceedings as per Exs.D-1 to D-7 from the accused. If everything was alright, then P.W-1 would have got his promotion in the routine course. It is only because of Exs.D-1 to D-7 charge memos and pendency of the enquiry, P.W-1 had to approach the accused for the promotion. On perusal of Exs.D-1 to D-7, it is evident that after the accused joined in Tanuku Municipality, he started giving charge memos one after the another to P.W-1. The accused joined in Tanuku Municipality on 04.03.1996. The accused gave the memos on 10.04.1996, 24.05.1996, 04.06.1996, 20.06.1996, 24.06.1996, 15.07.1996 and 17.09.1996 as per Exs.D-1 to D-7. P.W-1's service profile also is relevant herein. P.W-1' s father was working as sanitary maistry in Bhimavaram Municipality and he died while in service in November, 1983. So, P.W-1 was given appointment as sanitary maistry in Bhimavaram Municipality on compassionate grounds. After joining in service, he underwent sanitary inspectors training and passed it and he was given promotion as health assistant in Bhimavaram Municipality in the year 1990. He was transferred to Tanuku Municipality as Health Assistant in June, 1995. From September, 1995, he was kept in full additional charge of the post of sanitary inspector when the existing incumbent by name A.Radha Krishna retired from service on attaining the age of superannuation. P.W-1 had put in Ex.P-1 application for promotion prior to the accused joining in service on the ground that he completed 5 years of service as health assistant and was eligible for promotion as sanitary inspector/health inspector. P.W-1 says that the Director of Municipal Administration issued proceedings dated 07.02.1996 to consider his promotion after formation of panel committee and to continue him in full additional charge. It is only after the accused joined in Tanuku Municipality in March, 1996, the accused started giving Exs.D-1 to D-7 memos one after the another. It made P.W-1 to go round the accused seeking his promotion and it gave scope to the accused to demand bribe for giving promotion to P.W-1. In other words, the accused drove P.W-1 to approach him for promotion, by creating circumstances adverse to P.W-1. 8) It is contended for the appellant that the Commissioner is not the authority to give promotion to P.W-1 and that the panel committee consisting of Chairman, Vice Chairman and three councillors of the municipality is competent to give promotion to P.W-1. The panel committee for promotion may select the candidate after considering desirability of giving promotion to that candidate. Ultimately it is the Commissioner of that municipality who is the authority to issue promotion to the staff working in that municipality. Panel committee for promotions was formed in Tanuku Municipality on 26.06.1996, but the committee was not meeting thereafter to consider application of P.W-1 for promotion. There are rules relating to transaction of business of the committees constituted under Sections 43 and 74 of the Andhra Pradesh Municipalities Act, 1965. Those rules were issued in G.O.Ms.No.1124, Housing, Municipal Administration and Urban Development (MA), dated 14.10.1991. Relevant rule therein is Rule 4 which reads as follows: "4. The agenda for the meeting of the committees shall be prepared by the Commissioner in consultation with the Chairperson. The Commissioner may include any item in the agenda which in his opinion should be considered by the Committee. On any subject included in the agenda, the Chairperson as well as the Commissioner shall have the right of recording his views in a note that may be circulated among the members of the Committee." 9) As per the above rule, agenda for the meeting of any committee in municipality has to be prepared by the Commissioner in consultation with the chairperson. Apart from consultation with the chairperson, the Commissioner also has discretion to include any item in the agenda which in his opinion should be considered by the committee. Apart from preparing the agenda, the Commissioner also has got right of recording his views in a note on any circulated items of agenda. Therefore, it is the Commissioner who has to prepare the agenda and who has to include the promotion application of P.W-1 in the agenda for the meeting of the panel committee for promotion. Simply because the panel committee has to take decision with regard to the selection of individual for promotion by majority decision, it cannot be said that the Commissioner has no role to play in the promotion of P.W-1. Further, Section 58 of the Andhra Pradesh Municipalities Act, 1965 imposes a duty on the Commissioner to attend meetings of the councillor and also if required by the chairperson the meetings of any committee, in which event the commissioner has the right to speak in that meeting and to take part in that meeting with restriction of not having any right to move any resolution or to vote in any such meeting. In the light of the said rule position, it cannot be said that there was no official favour pending with the accused with regard to the promotion of P.W-1. 10) With regard to the incidents which took place on the date of trap on 26.10.1996 after 6.00 P.M, there appears to be a drama in and around the chambers of the accused. There is no dispute about right hand finger rinse of the accused in sodium carbonate solution turning pink. Left hand finger rinse of the accused did not turn pink. There is also no dispute about recovery of M.O-1 tainted cash of Rs.10,000/- together with another Rs.500/- from the open space above table drawer and below table top of the accused in that room. The question is as to how right hand finger rinses became pink and as to how M.O-1 tainted cash was found above table drawers of the accused. M.O-1 tainted cash was found on right side above table drawers corresponding to right hand of the accused. 11) There is no dispute about P.Ws 1 and 2 entering into the chambers of the accused during the time of trap. It is evidence of P.Ws 1 and 2 that when they went to municipal office at about 6.00 P.M, some persons were talking to the accused inside his chambers and that after those persons went out of the chambers, P.Ws 1 and 2 entered into chambers of the accused and P.W-2 stopped at the entrance of the chambers and P.W-1 went to seat of the accused. It is their further evidence that after the accused enquired P.W-1 as to whether he brought the demanded bribe amount to consider his promotion, P.W-1 informed him about he bringing the money and that P.W-1 took out M.O-1 tainted currency notes of Rs.10,000/- and gave the same to the accused who received the same with his right hand and kept it on his right table drawer. P.W-4 deposed that when he questioned the accused about the tainted cash, the accused opened of his table drawer and took out M.O-1 from it. It is contended that the amount was not kept in the table drawer but was kept upon table drawer in the open space between table drawer and table top. In my opinion, the said discrepancy is on a trivial aspect which is immaterial aspect and it cannot have any bearing in considering the evidence on record, particularly when there is no dispute about seizure of M.O-1 tainted cash from the open space above the table drawer of the accused. 12) It is contended that apart from M.O-1 tainted cash of Rs.10,000/-, further sum of Rs.500/- which was un-tainted cash was also found there. It is contended that in a hurry P.W- 1 took out not only M.O-1 tainted cash of Rs. 10,000/- from his pocket and also Rs.500/- and the entire amount was thrusted into the hand of the accused. P.W-3 in cross-examination deposed that during pre-trap proceedings, pockets of P.Ws 1 and 2 were not checked. Whereas P.W-4 in his cross- examination denied the said suggestion that pockets of P.Ws 1 and 2 were not checked during pre-trap proceedings. The question is not with regard to the amount of Rs.500/- which was found along with tainted cash of Rs.10,000/-. It is not for the prosecution to explain presence of additional cash of Rs.500/- on the table drawer of the accused. It is for the accused to plead any explanation and to probabilise the said explanation. The accused did not plead anything about the said additional cash of Rs.500/- during trial in the lower Court. 13) It is evidence of P.W-2 that after P.W-1 handing over of M.O-1 tainted cash to the accused, the accused intended to leave his chambers while P.W-2 was talking to him and that he asked the accused to wait for some time and that in the meanwhile the accused went towards door of his chambers, when A.C.B trap party entered into the chambers. P.W-3 deposed that at 6.15 P.M the constable relayed the signal and immediately P.W-4 along with trap party rushed into room of the accused and that the accused was trying to go out of the room and P.W-1 was persuading the accused not to leave the room and P.W-2 was sitting in front of chair of the accused. D.W-2 is the then senior assistant, D.W-4 is the then attender and D.W-6 is the then Assistant Engineer working in Tanuku Municipality. D.W-2 deposed that at about 6.00 P.M on 26.10.1996 while he was about to leave from his seat after completion of his work, he heard loud and panic voice of the accused from his chambers and that immediately he rushed towards the chambers and found P.W-2 at the entrance door of the chambers and the accused was trying to come out of the office and P.W-2 was preventing him by standing at main entrance of the chambers. He says that he enquired P.W-2 as to why he was preventing the accused to come out of the chambers, P.W-2 stated that higher officials were coming to chambers of the accused. In cross-examination, D.W-2 deposed that he does not know what transpired inside the chambers of the accused before he went there. He further deposed that by 26.10.1996, file relating to promotion of P.W-1 was pending for clearance by the promotion panel committee. It is evidence of D.W-4 that when he was nearing chambers of the accused, he heard huge cries of the accused as well as calling bell sound and found P.W-2 standing in the door way of chambers of the accused and preventing the accused from coming out of his chambers and that P.W-2 did not allow him(D.W-4) to enter into the chambers of the accused and that P.W-1 was found inside chambers of the accused and he was preventing the accused from going outside by holding his hand. D.W-6 deposed that when he and another were near chambers of the accused, he saw P.W-2 standing near the door way of the chambers and that P.W-2 asked them to wait for some time and that when they were proceeding towards warandah, they heard loud panic voice of the accused from his chambers and that on hearing the same, D.W-2 came running towards chambers of the accused and that they also went near to the door and that D.W-2 tried to enter into the chambers and that when the accused tried to come out, P.W-2 pushed him inside and somebody from inside caught hand of the accused and pulled him inside. In cross-examination D.W- 6 deposed that on hearing panic voice of the accused, all the staff members rushed towards chambers of the accused and that some A.C.B officials who were present in the chambers of the accused conveyed message through attender that no one should be present near chambers of the accused and that therefore all of them went to their seats. 14) None of D.Ws 2, 4 and 6 knew what happened inside the chambers of the accused. It is only P.Ws 1 and 2 who participated in the trap, witnessed the events which took place inside chambers of the accused. D.Ws 2, 4 and 6 came into picture only after hearing loud and panic voice of the accused. Loud and panic voice of the accused was heard by them during the last stage of trap when the accused - intended to leave the chambers just before arrival of A.C.B trap party. Since A.C.B trap party are expected to arrive at the scene, P.W-2 tried to prevent the accused from going out of the chambers, for which the accused resisted. In the meanwhile, A.C.B trap party went there and conducted post-trap procedures in that chambers. 15) It is contended for the appellant that P.W-2 is aggrieved against the accused because of re-installation of Kondalamma idol in P.W-2's ward even after its removal at P.W-2's instance. D.W-3 was examined to speak to the incident relating to removal and reinstallation of Kondalamma idol on road. D.W-3 is town planning building overseer of Tanuku Municipality during that time. His evidence shows that it was the accused who was instrumental in removing of Kondalamma idol at the instance of P.W-2 and that reinstallation of Kondalamma idol was facilitated by the municipal chairperson who directed for return of the idol to the agitating persons belonging to congress party. In those circumstances, P.W-2 cannot have a grouse against the accused; and if really he had any grouse on the said incident, he may have grouse against the chairperson who belongs to his own party. 16) On consideration of the entire evidence on record particularly that of P.W-1 who is the decoy witness and P.W-2 who is the accompanying witness, I have no hesitation to agree with the finding of guilt of the accused arrived at by the lower Court. There are no circumstances to come to a different conclusion on reassessment of entire evidence in this appeal. I agree with the conclusion of the lower Court that the accused is guilty of both the charges framed against him. 17) In the result, the appeal is dismissed, but in the circumstances of the case, altering sentence of imprisonment from two years to one year. __________________________ SAMUDRALA GOVINDARAJULU, J June 29, 2011 ksh