IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 714 OF 2003 Between: P. Ramalinga Reddy … Appellant V/s. The State of A.P. Represented by its Spl.Public Prosecutor, High Court of A.P Hyderabad. … Respondent Counsel for the appellant : Sri Dittakavi Venkateswar Rao Counsel for the Respondent : Spl. Public Prosecutor Standing Counsel for ACB & SPE Cases The Court made the following Judgment: Judgment follows from 2nd page THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 714 of 2003 JUDGMENT : This Criminal Appeal is filed against the conviction and sentence recorded by the Additional Special Judge for SPE & ACB –cum-V-Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the appellant was sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for three months for the offence under section 7 of the Prevention of Corruption Act, 1988 and also further sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for three months for the offence under section 13 (1) (d) of the said Act. 2. The case of the prosecution is as follows: The Accused Officer worked as Village Administrative Officer of Marur village, Rapthadu Revenue Mandal from 10-9-1987 to 04-9-1996 and as such he is a public servant defined in clause (c) of Section 2 of the Act. One Bommella Earanna PW-1 and Harijana Pujari Chandrappa PW-2 of Marur village were assigned with lands admeasuring Ac:1-27 in survey No. 582-1, Ac:1-69 in survey No. 279-7 and Ac:1-56 in survey No. 264/1 respectively of their village and pattas were issued to them by the then Mandal Revenue Officer C.Kondaiah (LW-7) on 30-11-1995. They both wanted to avail a crop loan from Grameena Bank and approached the bank where they were asked to obtain “Adangal chittas” with regard to their lands from the Village Administrative Officer to avail that loan. They approached him and sought for Adangal chittas and the Administrative Officer made to go round him for a month without issuing the same. Finally on 22-8-1996 when PWs 1 and 2 approached him and asked to issue the chittas and adangals for their lands, the Administrative Officer demanded bribe of Rs.1000/- from each of them to do the official act of issuing the copies of Chittas and Adangals. When they pleaded their inability being poor labourers to pay any bribe, the Administrative Officer bargained and said that each of them at least pay him Rs.400/- by 25-8-1996 as bribe, and if they come and pay, he would issue the certified copies of chittas and adangals. Having no other go, they have agreed to pay him the bribe and came away. When they consulted about this matter with their village elders, they chided them for accepting to pay bribe and advised them to approach the Anti-Corruption Bureau. Accordingly they went to the Anti Corruption Bureau Office Ananthapur on 24-8- 1096 where they met the Deputy Superintendent of Police, Anti- Corruption Bureau PW-7 and orally complained about the demand for bribe by the Village Administrative Officer. The Deputy Superintendent of Police asked them to give the complaint in writing. When they said they are illiterate, the complaint was recorded by one of the Sub-Inspector of Police which was read over to them and then PW-1 signed on Ex.P1 and PW2 also signed it as a witness. The Deputy Superintendent of Police asked PWs 1 and 2 to come to his office with the proposed bribe amount on 25-8-1996 at 3:00 p.m. After receipt of the complaint the Deputy Superintendent of Police, Anti Corruption Bureau made discreet enquiries about the reputation of the Administrative Officer and found not enjoying good reputation, obtained permission from the Head Office and registered the complaint on the next day i.e., on 25-08-1996 at 11:00 a.m. and issued Ex.P18 FIR. On 25-8-1996 the complainant PW-1 and his companion PW-2 attended the office of the Deputy Superintendent of Police, Anti Corruption Bureau PW-7 at the appointed time. Meanwhile, PW7 secured the presence of two mediators. PW3 and LW4. They assembled in the office of PW7 at 3:45 p.m. PWs 1 and 2 were introduced to PW3 and LW4 and a copy of their complaint was given to them to ascertain the genuineness of that complaint, who questioned PW-1 and PW2 about the allegations made in the complaint and whether the complaint was voluntarily given and satisfied. On asking by PW7, PWs 1 and 2 produced the proposed bribe amount of Rs.400/- each. The mediators noted the details, like demonstration and numbers in the pre-trap proceedings Ex.P5. PW7 got applied phenolphthalein powder to those currency notes through PC 310. He got prepared sodium carbonate solution into which the mediators PW7 and staff rinsed their hands but there was no change of colour, on the instructions of PW7, Sub-Inspector Ramakrishna searched the pockets of PWs 1 and 2 to ensure that they do not possess anything else. Then PC310 kept the wad of currency notes of Rs.400/- each in the right side shirt pockets of each of them Then PC 310 rinsed his hand fingers in that solution and it readily turned into pink colour. Then PW7 explained to all of them the significance of the test. PW7 then instructed PWs 1 and 2 to pay the tainted amount to the accused officer only on his demand and not other wise. The samples of sodium carbonate and phenolphthalein powder were preserved in separate covers and attested by them MOs 1 and 2. PW7 explained to the trap party members the vantage positions, they are to take at the house of the accused officer and instructed PW2 to observe the transaction and if the accused officer demands and receives the bribe amount from both of them, he should come out and give a signal to the trap party by wiping his face thrice with his towel. All these proceedings were recorded by the other mediator PW3. Then all of them, leaving behind the constable who applied phenolphthalein powder to the currency notes and the resultant solution in the office and after thoroughly washing their hands, proceeded and reached the vicinity of the house of accused officer. The trap party took vantage positions at the house of the accused officer. PWs 1 and 2 went inside the house of the accused officer at about 05:30 p.m. PW2 came out and gave the pre-arranged signal to the trap party, receiving which the trap party members rushed into the hou7se of the accused officer located in the upstairs. PW7 introduced himself land introduced the trap party members to the accused officer, who was sitting in his revolving chair infront of the table, ascertained the identity of the accused officer, PW1 was found sitting infront of him on the floor 6 feet away, the accused officer became nervous and started shivering on the PW7 disclosing his identity. On the instructions of PW7, the Range Inspector prepared sodium carbonate solution into glass tumblers, into which the accused officer rinsed his both hand fingers separately, the solution into which the right hand fingers were dipped turned pink colour, while the left hand wash remained colourless. The solutions were preserved as MOs 5 and 6. When PW7 questioned the accused officer regarding receipt of bribe amount from PWs 1 and 2, at the first instance accused officer denied to have received the bribe and when again asked by PW7, the accused officer slowly and hesitatingly removed the wringing paid kept on the table and another writing pad kept on the registers which gave a gap just like a roof on two walls, there wound two wads of notes. Their details compared with those noted in the pre-trap proceedings Ex.P5 and found tallied. The total amount of Rs.800/- was seized under MO-3. PW7 then got the writing paid, on which the tainted currency notes were found, wiped with a cotton swab and subjected it to the test of phenolphthalein powder by getting prepared a fresh sodium carbonate solution and rinsing it in it that solution turned into pink colour, it was preserved as MO-6. The paid and cotton swab were seized under MOs 4 and 8. The remaining sodium carbonate powder was prepared as MO-9. PW7 then verified two registers found on the table of the accused officer for the purpose of verifying entries relating to survey numbers of PWs 1 and 2 and noted that accused officer did not enter the patta details of the assigned lands by the Mandal Revenue Officer to them. PW7 asked accused officer to produce “A” memorandums of PWs 1 and 2 containing the grant of patta by MRO to PWs 1 and 2 with a direction of the MRO to the accused officer to enter them in the registers. Accused Officer denied receiving them and said that they are not available with him. Then PW7 instructed his staff to make a thorough check and after a long search they were found in the wall shelf on the left side of the seat of the accused officer. After noting their details in the post trap proceedings Ex.P6 those “A” memorandums were seized under Exs.P8 and P9. From 10(1) Adangal registers the extracts relating to the survey numbers of PWs 1 and 2’s lands which were assigned to them in which their names were not noted by the ASO inspite of assignment has been Xeroxed and seized and they relate to the Fasli year 1405 under Exs.P10, 11 and 12. All the above documents were attested by the mediators. PW7 then called the complainant PW-1 and PW2 and asked them separately to narrate what all happened since they left he trap party to which PW-1 said that he along with PW2 went inside the house of accused officer, who on seeing them asked whether they brought the demanded bribe amount and when they nodded their heads in the affirmative, the accused officer directed them to keep the amounts on the samall writing pad placed in between two registers, accordingly they kept the two wads of tainted currency notes of Rs.400/- each on that pad on the table located infront of the chair of the accused officer. The accused officer then with his right hand pushed those currency notes wads towards his side and kept another writing pad on the two registers just like a roof on the walls after that accused officer wrote and handed over extract of Chitta Adangal to him and that in the meanwhile since the accused officer received the bribe amounts, as instructed. PW2 went out and displayed the prearranged signal to the trap party, so saying PW-1 handed over a chitta adangals toPW7 and further said accused officer asked him to collect other extracts afterwards. That chitta adangal was seized under Ex.P2. When enquired PW2 gave a similar statement and further said that when PW1was taking to the accused officer, PW2 slowly went out and passed on pre-arranged signal to the trap party and he further said that the accused officer asked them to collect the adangal and extracts afterwards. PW7 then confronted with the accused officer about the statements of PWs 1 and 2 to which accused officer replied denying any demand and acceptance of bribe from them. PW7 then confronted with the said denial of the accused officer with PWs 1 and 2 but they stick to their earlier version. PW7 got the rough sketch of that place drafted under Ex.P7. The inmates of the house of thea ccused officer, when questioned, denied having witnessed that transaction. The sample of the sodium carbonate powder was prepared under MO-9 proceedings were drafted by member PW3 which is Ex.P6 copy of which was served upon the accused officer under his acknowledgement vide endorsement on Ex.P10. On the next day, PW7 secured the presence of PWs 1 and 2 in his office and recorded their detailed statements. On the requisition filed by him, the Judicial Magistrate of First Class, Prohibition and Excise, Ananthapur on 31-08-1996 recorded the statements of PWs 1 and 2 under section 164 Cr.P.C. under Exs.P3 and P4. Further investigation was taken up by the Inspector of Police, Anti Corruption Bureau, Ananthapur PW8, who having received permission from his Head Office on 31-10-1996 addressed to the Mandal Revenue Officer, Rapthadu for furnishing the files, thus obtained the original file under which lands were assigned to PW2 in survey No. 279/7 extent Ac:1-60 guntas and survey No. 264/1 extent Ac:1-56 guntas under Ex.P13 and the original file of PW-1 under which land was assigned to PW-1 in survey No.582/1 in an extent of Ac:1-27 guntas under Ex.P14, the report of the assignment committee minutes, register of theMRO Rathpadu under Ex.P15, the original file relating to assignment of land in survey No.360/1 and 528/1 in favour of PW.1 under Ex.P16. He examined and recorded the statements of the then surplus Jr.Assistant in the office of the Mandal Revenue Officer, Rapthadu who along with Revenue Inspector PW4 dealt with the assignment of lands to PWs 1 and 2 and then Revenue Inspector PW5 of that MRO Office who conducted enquiry about the eligibility of PWs 1 and 2 to get the lands assigned and after assignment handed over “A” memorandums under Exs.P8 and P9 to the accused officer for entering in 10 (1) adangal registers and the MRO of that office and some others. He conducted the investigation, submitted a report to his head office and later on receiving prosecution sanction order under Ex.P17 filed the charge sheet in the court. 3. On appearance of the accused officer, copies of the documents were furnished to him as required under section 207 Cr.P.C. After hearing both sides and perusing the material placed on record, the accused officer was examined under section 239 Cr.P.C. alleging the substance of accusation. On due consideration charge under section 7 and 13 (1) (d) r/w section 13 (2) of Prevention of Corruption Act, 1988 have been framed, read over and explained to him. Accused officer denied the same and pleaded not guilty and claimed to be tried. 4. During the course of trial, the prosecution examined as many as PWs 1 to 8 and marked Exs.P18. On behalf of the accused officer, DW-1 was examined and marked Exs.D1and D2 and MOs 1 to 9. 5. After closure of the prosecution evidence, the accused officer was examined under section 313 Cr.P.C. for the incriminating evidence appearing against him. 6. On hearing both sides and on appreciation of oral and documentary evidence adduced by both sides, the learned trial Judge after evaluating the evidence adduced by the prosecution and also on appreciation of the oral and documentary evidence placed on record, the learned trial Judge convicted and sentenced the Accused Officer as stated hereinabove. 7. Sri Dittakavi Venkateshwar Rao, the learned counsel representing the appellant-accused officer raised the following points for consideration: a) The trial court miserably failed to frame charge in the proper manner; b) The document in question pertaining to survey No.482/1, 279/7 and 264/1 neither recovered nor any document is shown that the said demand is in connection with the said survey numbers; c) It is an admitted case by the witnesses that no application was given to the accused officer for recording the names in connection with the said survey numbers; d) PW-3 in his chief examination stated that the accused officer spontaneously stated that no demand and also he has not accepted the money; e) PW-7 Investigating Officer also accepted the same; f) There is motive between one Narasimhappa and the accused officer on his inducement the present complaint was lodged; g) The witness, who scribed Ex-P1 hold the hands of accused officer which resulted in positive phenolphthalein test; h) The same was stated before the Magistrate while examination under section 164 Cr.P.C. by PW-2 marked as Ex-D1. 8. On the other hand, the learned Special Public Prosecutor for ACB and SPE Cases per contra submitted that the prosecution clearly proved the demand and acceptance by adducing positive evidence. On perusal of the charge recorded by the learned trial Judge, it is stated that the demand was reduced from Rs.500/- to Rs.400/-. Whereas it is the case of the prosecution that the same was reduced from Rs.1000/- to Rs.400/-. In the said charge, no where it is recorded that the said demand was made in connection with the survey nos. 482/1, 279/7 and 264/1 even though the same is mentioned in the charge sheet filed by the Investigating agency. The learned Special Public Prosecutor submitted that if there is anything wrong in the charge, it is the duty of the accused officer to inform how he is prejudiced. It is true that the advocate in permitting charge if it caused prejudice, the same would be fatal to the case of the prosecution. 9. In the present case on hand, even though the demanded amount is not properly framed in the charge. The non-mentioning of the demand in connection with the said survey numbers would certainly cause prejudice to the accused officer. On further perusal of the record, the demand made by the accused in connection with the above said survey numbers but the prosecution miserably failed in its attempt to establish the same by way of producing any document to speak the position of the accused officer and also failed to prove that the accused officer is the person in charge of the said survey numbers to record the same in the relevant document. On further perusal of the evidence and also the documents placed before this Court, when a demand was made by the accused officer in connection with the recording the name and a demand made by him there should be an application on behalf of PWs 1 and 2. In the absence of any such application, as admitted by PWs 1 and 2, the question of demand is highly improbable. Further on reading of the evidence of PW-3 mediator, the said statement was also recorded in which it is stated that the accused officer spontaneously answered that he neither demanded nor accepted any such amount as stated by PWs 1 and 2. Even after confronting the accused officer, he reiterated the same to PW-3. The same was also deposed by PW-7 who is the Investigating Officer. Another form recovered from the accused officer, which is called as “A-Form” . It does not contain any of the survey numbers or the name of the witnesses concerned. In connection with the acceptance of the amount, it is evident from the record that the money was kept in the pad and the same was taken by the accused officer and he kept in the same between the pads and the same was recovered by the Investigating Officer after the accused officer identified the said amount. 10. Learned Special Public Prosecutor submitted that when the money is recovered and the phenolphthalein test also shows positive result, there is no need to suspect the case of the prosecution. In reply, learned counsel for the accused submitted that there is ample evidence to show that the accused has come into contact with one Ramakrishna, who accompanied the trap party. Hence, it is highly unsafe to believe that the accused officer received the tainted money, only on the basis of the phenolphthalein test. 11. On the foregoing discussion, this Court is of the view that once the prosecution established the fact that there is demand made by the accused officer and the said demand was in connection with the execution of official duty, when the same is proved and the money is recovered, the presumption under section 20 of the Prevention of Corruption Act came into force. When the demand itself is suffered with some infirmities and also discrepancies in the evidence adduced by the prosecution, the presumption under section 20 of the Act will not be of any use to the prosecution. Hence, this Court has considered the said facts and finds that the prosecution has failed to establish its case by placing positive and cogent evidence and the doubts raised by the accused officer which are reasonable in nature hence the benefit of the said reasonable doubt should be given to the accused officer. Hence, the case against the appellant-accused officer herein is not proved beyond all reasonable doubt. The conviction and sentence recorded by the Additional Special Judge for SPE & ACB –cum-V-Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the appellant was sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for three months for the offence under section 7 of the Prevention of Corruption Act, 1988 and also further sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for three months for the offence under section 13 (1) (d) of the said Act, be and is hereby set aside. 12. In the result, this Criminal Appeal is allowed. ______________________ JUSTICE RAJA ELANGO 14-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 714 OF 2003 CIRCULATION NO. 13 Date:14-12-2010 Court Master: I s L Computer No. 43