*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.1547 of 2004 %22-06-2011 #State : Inspector of Police, Anti-corruption Bureau, Visakhapatnam ….Appellant Vs. $ Upadyayula Subrahmanya Sharma …. Respondent !Counsel for the Appellant: Sri Ghani A. Musa Counsel for the Respondent: Sri K.Srinivas <Gist : >Head Note: ? Cases referred: IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1547 of 2004 DATE:22.06.2011 Between: State: Inspector of police, Anti-Corruption Bureau, Visakhapatnam …… Appellant And Sri Upadyayula Subrahmanya Sharma, Asst. Engineer (Mechanical), APSRTC, Waltair Depot, Visakhapatnam. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1547 of 2004 JUDGMENT : The accused/respondent was working as Assistant Engineer (Mechanical), Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C), Waltair Depot, Visakhapatnam. The Special Judge for A.C.B Cases, Visakhapatnam in C.C. No.59 of 2009 (old C.C. No.8 of 1996) by the impugned judgment dated 27.01.2004 acquitted the accused of the charges under Sections 7 and 13(1)(d)/13(2) of Prevention of Corruption Act, 1988 (in short, the Act). 2) P.W-1 was working as Deputy Superintendent (Mechanical) in the same Waltair Depot of A.P.S.R.T.C at Visakhapatnam during the relevant time. In September, 1993 there was inspection by Divisional Manager and Depot Manager of Waltair Depot and stopped P.W-1’s incentive on the ground that washing and cleaning of buses were not proper. Therefore, P.W-1 intended to put in an application to the higher authorities for release of incentive to him. The said application has to be routed through the accused who was his superior in the same department. It is alleged that on 27.09.1993 when the P.W-1 approached the accused along with his application, the accused did not oblige his request and demanded Rs.150/- as illegal gratification to send his application to higher authorities. Alleging so, P.W-1 gave Ex.P-1 report to P.W-4, Deputy Superintendent of Police, Anti-Corruption Bureau (A.C.B) Visakhapatnam range on 28.09.1993. Thereupon, P.W-4 arranged trap for the accused on 01.10.1993. Before proceeding for the trap, Ex.P-8 pre-trap proceedings were prepared in the presence of mediators including P.W-2. It is alleged that the trap was successful and M.O-5 tainted cash of Rs.150/- was seized from the possession of the accused under the cover of Ex.P-10 post- trap proceedings. Plea of the accused is one of not guilty. After full fledged trial, the lower Court found the accused not guilty of the charges. 3) The lower Court recorded acquittal of the accused on two grounds viz., that no reliance can be placed on evidence of P.W- 1 without any corroboration and that sanction for prosecution of the accused in this case was not in accordance with law. The lower Court also found favour with the defence version that the accused received tainted cash of Rs.150/- from P.W-1 towards his contribution for two functions and not as bribe amount. The accused was in-charge of union activities of the Corporation in that depot. It is pleaded by the accused that out of Rs.150/-, a sum of Rs.50/- was paid by P.W-1 towards contribution for felicitation function of Dr.M.V.Mysura Reddy who was the State President of their union and who became Minister in the Government of Andhra Pradesh and that balance of Rs.100/- was paid towards arrears of contribution payable by the accused for farewell function of Divisional Manager Sudhakar Rao which took place earlier. 4) P.W-1 speaks to the demand of Rs.150/- made by the accused on 27.09.1993 for forwarding his application to higher authorities for restoration of incentive to him. He also speaks to receipt of tainted cash of Rs.150/- by the accused from P.W-1 on 01.10.1993 during the trap after making demand for the said amount. In cross-examination, P.W-1 stated that he does not remember whether he paid Rs.50/- for the party of Dr.M.V.Mysura Reddy which was performed on 04.10.1993. The function of felicitating Dr.M.V.Mysura Reddy was scheduled to be held on 04.10.1993, which is four days subsequent to the date of trap. In so far as the farewell function of the Divisional Manager Sudhakar Rao is concerned, it was in June, 1993. It is pointed out from Ex.P-5 that P.W-1 did not make payment of contribution of Rs.100/- for the farewell function. Ex.P-5 is the list sent regarding collections of contributions from this depot. It shows that P.W-1 and another did not make their contributions of Rs.100/- each for the said function and that in spite of non- payment of the said contributions by two individuals, the Superintendent by name Rama Murthy who was in-charge of the said collection, sent the total amount payable by adding total deficit of Rs.200/- from his pocket. From the above evidence, the lower Court came to the conclusion that it is probable that P.W-1 paid tainted cash of rs.150/- to the accused towards his contributions for the above two functions. 5) Except the evidence of P.W-1 with regard to demand of bribe by the accused and acceptance of tainted cash of Rs.150/- as bribe by the accused, there is no corroborative evidence for the same. It is no doubt true that there is no hard and fast rule that evidence of the defacto-complainant on demand and acceptance of bribe by the accused cannot be accepted without corroboration. It is for the Court to judge whether in the circumstances of that case and in the light of evidence produced by the prosecution, whether corroboration for such evidence is required or not. Corroboration is only a matter of prudence and not as a matter of rule. The lower Court sought for corroboration for P.W-1’s evidence because P.W-1 was with hopeless service record and criminal record. P.W-1 admits in cross-examination that he was suspended thrice and domestic enquiries were conducted against him twice and that there were 5 or 6 punishments against him during his service before trap and that a criminal case was filed against him alleging commission of theft of paints. He also admits that after conducting departmental enquiry, he was reverted in service. Ex.X-1 is service record of P.W-1. In the light of the above poor record and character of P.W-1, the lower Court rightly sought for corroboration for P.W-1’s evidence. In the absence of any corroboration for P.W-1’s evidence, the lower Court rightly found favour holding that the defence version is probable. 6) It is contended by the Special Public Prosecutor that the version given by the accused in Ex.P-10 post-trap proceedings as spot explanation is different from the plea taken up by the accused explaining payment of Rs.150/- by P.W-1 to him. In Ex.P-10, it is stated that when P.W-4 questioned the accused about the tainted cash in his possession, the accused stated that he took Rs.150/- from P.W-1 and that the said amount consisted of Rs.50/- towards association subscription and the remaining Rs.100/- towards the outstanding due from P.W-1. It is not stated in Ex.P-10 whether the amount outstanding was outstanding personally to the accused or outstanding towards contribution for the earlier farewell function of Divisional Manager Sudhakar Rao. Even the collection of rs.50/- from each member for felicitation function of Dr.M.V.Mysura Reddy, it was by the association and not by the accused personally. Though there appears to be superficial inconsistency in the versions of the accused, on deep analysis of the same, I do not find any inconsistency in the versions put forward by the accused. 7) In so far as sanction for prosecution as required under Section 19 of the Act is concerned, the prosecution filed Ex.P- 22. P.W-5 is the then Principal Secretary, Transport, Roads and Buildings Department of the Government of Andhra Pradesh, Hyderabad. He issued Ex.P-22, G.O.Ms.No.14, dt.24.01.1996 to the effect that the Government of Andhra Pradesh accorded sanction for prosecution of the accused for the offences under the Act. The lower Court held that Ex.P-22 sanction is not valid and legal. Section 19(1) of the Act reads as under: 19) Previous sanction necessary for prosecution: (1) No Court shall take cognizance of an offence punishable under section 7, section 10, section 11, section 13 and section 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. The above provision postulates that there should be sanction given by the Central Government or State Government for prosecution of the persons employed in connection with the affairs of the Union or the State as the case may be. In case of any other person the sanctioning authority shall be one who is competent to remove the accused from his office. Admittedly, the accused is not a person employed in connection with the affairs of the State of Andhra Pradesh. He is an employee of a Corporate Body viz., Andhra Pradesh State Road Transport Corporation. It is contended by the Special Public Prosecutor that A.P.S.R.T.C is funded and aided by the State Government and that the State Government has got power to appoint or remove the Managing Director of A.P.S.R.T.C and that therefore, the State Government is empowered to give sanction for prosecution of the accused under Section 19(1) of the Act. This argument is contrary to the language employed in Section 19(1) of the Act. As per clause (b) of Section 19(1), the State Government is competent to issue sanction for prosecution of the accused in case he was a person employed in connection with the affairs of a State. In cases of any other persons, it is clause (c) of Section 19(1) which is applicable. Even though Managing Director of A.P.S.R.T.C is posted or transferred by the State Government from the State Government service, the State Government has no role to play in the internal administration of A.P.S.R.T.C particularly with regard to the staff matters in that Corporation. A.P.S.R.T.C which came into existence under the Road Transport Corporations Act, 1950 is a statutory Corporation which manages its own affairs. Therefore, it is a separate and independent entity qua the State Government. In that view of the matter, sanction for prosecution in this case should have been granted under Section 19(1)(c) of the Act and not under Section 19(1)(b) of the Act. I agree with the conclusion of the lower Court that sanction for prosecution of the accused given by the State Government in this case, is bad in law. 9) Thus, on all the grounds the appeal fails. 10) Accordingly the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J June 22, 2011 NOTE: L.R. Copy to be marked (b/o) ksh