*THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY +Criminal Appeal No.1570 of 2001 % 25-10-2010 # Mohammed Sujath Ali … Appellant/Accused No.1 Vs. $ State of Andhra Pradesh, Rep. By Special Public Prosecutor for ACB Cases, High Court, of A.P., Hyderabad … Respondent/State ! Counsel for the Appellant: Sri C.Padmanabha Reddy, Learned Senior Counsel, Counsel for the Respondent: Special Public Prosecutor, High Court of A.P., Hyderabad. < Gist: HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1570 of 2001 (Dated : 25-10-2010) Between: Mohammed Sujath Ali (A-1) Superintendent, office of Divisional Forest Officer Medak …Appellant A n d State of A.P., through DSP, ACB, Nizamabad Range, Nizamabad ...Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.1570 of 2001 JUDGMENT: This Criminal Appeal is directed against the judgment dated 26.9.2001 passed in Calender Case No.3 of 1998 on the file of the Principal Special Judge for SPE & ACB Cases, at Hyderabad, whereby and whereunder, the learned Special Judge found A-1-Mohd. Sujat Ali guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 and convicted him accordingly and sentenced him to suffer Rigorous Imprisonment for a period of one year and fine of Rs.250/- in default to suffer R.I for three months for the offence under Section 7 of the P.C.Act and Rigorous Imprisonment for a period of one year and fine of Rs.250/- in default to suffer R.I for three months for the offence under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988. Both the substantive sentences have been directed to run concurrently. 2. The prosecution case, in brief, is:- A-1-Mohd. Sujat Ali was Superintendent in the office of Divisional Forest Office, Medak and whereas A-2-B.Anandam @ B.Anand was Junior Assistant in the Divisional Forest Office, Medak and he was on deputation to Forest Range Office, Narsapur during the year 1995-96. One Seethaiah and four others are the pattedars of the land bearing Survey Nos.330/2, 3, 4 and 5 of Pedda Gottimukkala village, Shivampet Mandal. They submitted Ex.P-11 application dated 23.12.1994 for cutting and removing teak trees in the patta lands. Pw-4 forwarded the application to Divisional Forest Officer, Medak. The Divisional Forest Officer received the application and instructed Pw-4 under Ex.P-12 letter dated 6.1.1995 to inspect the patta land, enumerate the tree growth and submit a detailed report with enumeration list of the trees for further action. Thereupon, Pw-4 inspected the lands and submitted report on 9.1.1995, which has been exhibited as Ex.P-13. The Divisional Forest Officer sought for further information with regard to lop and top of the trees. Thereupon, Pw-4 submitted a detailed report. The pattedars executed General Power of Attorney on 17.6.1995 authorizing Pw-2 to cut 335 teak trees and sell the same in accordance with the rules in force. The Divisional Forest Officer, Medak issued Ex.P-16 proceedings dated 13.2.1996 according permission to Pw-2, for cutting trees. Pw-2 cut the trees and intimated the same to Pw-4, who inspected the land and submitted report to the Divisional Forest Officer for issue of transport permit to Pw-2, vide Ex.P-17 letter dated 22.3.1996. Thereupon, the Divisional Forest Officer granted permission to Pw-2 for transporting the cut material to Hyderabad on or before 11.4.1996 vide Ex.P-19 letter dated 8.4.1996. He was able to lift only part of the cut material before expiry of the permission granted to him. Therefore, he submitted application seeking extension of time. Pw-4 forwarded the application to the Divisional Forest Officer, Medak under Ex.P-20 letter dated 6.5.1996. The Divisional Forest Officer permitted Pw-2 to transport the balance felled material on or before 16.5.1996 under letter dated 10.5.96. However, Pw-2 could not transport the material within the permitted period as he met with an accident. Therefore, he submitted another application dated 25.5.1996 (Ex.P-22) seeking permission to transport the left over material to Hyderabad. He met A-2 at his house on 30.7.1996 and requested him to help in securing the permit. A-2 asked him to come on 1.8.1996 to his house. He went to the house of A-2 on 1.8.1996. A-2 took him to the house of A-1. A-1 demanded Rs.5,000/- and whereas A-2 demanded Rs.2,500/- for issue of permit to transport the left over material to Hyderabad. He expressed his inability to meet their demand. Thereupon, A-1 reduced his demand to Rs.2,000/- and whereas A-2 reduced his demand to Rs.1,000/-. He informed A-1 and A-2 that he would come two days later to comply their demand. On 1.8.1996 itself, he went to the office of D.S.P., ACB Nizamabad range, who was camping at Sangareddy, and presented Ex.P-7 report. Pw-5 Gokul Singh, DSP, ACB Nizamabad range received Ex.P-7 report and got verified the correctness of the contents therein and registered a case in Crime No.4/ACB-NZB/96 and issued Ex.P-23 F.I.R. He instructed Pw-2 to come to Kowdipally Guest House with the proposed bribe amount of Rs.3,000/-. Pw-5 summoned mediators; Pw-1 Dr.V.Lakshmaiah and Lw-10 K.Ramulu and introduced the mediators to Pw-2 and vice versa. He showed Ex.P-7- written report submitted by Pw-5 to the mediators, read over the contents and explained to them. The mediators initialed on Ex.P-7 report. Pw-2 produced two wads of currency notes, one wad containing Rs.2000/- and another wad containing Rs.1000/-, which have been exhibited as M.Os.1 and 2. Pw-1 and Lw-10 noted the number of the currency notes vide annexure 1 and 2 to Ex.P-1- Medaitors report. Pw-5 instructed the constable to apply phenolphthalein powder to the currency notes. He asked the mediators to count the currency notes. Thereafter, he got prepared the sodium carbonate solution in two glass tumblers and asked one of the mediators, who counted the currency notes to rinse his finger in the sodium carbonate solution. The mediator rinsed his fingers in the solution, which resulted in change of colour. He explained the significance of the test and collected the sample of phenolphthalein powder and packed them properly, which have been exhibited as Exs.P-3 and P-4. He instructed Pw-2 to deliver the currency notes to the accused on their demand only and not otherwise. He asked Pw- 1 Dr.V.Lakshmiah to accompany Pw-2 V.Vittal to the office of the accused and watch closely as to what transpires between them. Pw-1 was instructed to come out from the office as soon as the accused accepts the bribe amount and to give a signal to the trap party by wiping out his face with a hand-kerchief. Ex.P-1 is the pre-trap panchanama prepared at the Kowdipally Guest House incorporating all the details. 3. On 02.8.1996, at about 11.30 am., Pw-1 and Lw-10 Ramulu and Pw-2 proceeded to the office of the Divisional Forest Officer, Medak and reached there by 12.15 p.m. But A-1 and A-2 were not in the office and therefore they waited till A-1 and A-2 arrived the office. A-1 and A-2 came to the office of the Divisional Forest Officer, Medak at about 6.10 P.M. Then, Pw-2 accompanied by Pw-1 entered the room of A-1. A-1 and A-2 demanded the bribe amount from him. Thereupon, Pw-2 took out the wads of currency notes from his shirt packet and handed over M.O-1 wad comprising 2 currency notes of 500 rupees denomination and 10 currency notes of 100 rupees denomination to A-1, and M.O-2 wad comprising one currency note of 500 rupees denomination and five currency notes of 100 rupees denomination to A-2. Both the accused received the currency notes. Pw-2 came out from the office and gave pre-arranged signal to the trap party. Immediately, Pw-5 along with trap party rushed to the office of the accused and introduced himself and the mediators to the accused. By the time Pw-5 entered the office, the accused were counting the currency notes and were about to put the currency notes in their respective pockets. The moment Pw-5 disclosed his identity; both the accused threw away the currency notes on the table and started rubbing their fingers to the table. Pw-5 prepared sodium carbonate solution in four glass tumblers and asked A-1 to rinse his right hand finger in one glass tumbler and when he did so, it turned into dark pink colour and so also in respect of his left hand fingers. Similar test was conducted in respect of A-2 also and the test was proved to be positive. The currency notes accepted by A-1 and A-2 as bribe were verified with the currency notes mentioned in annexures to Ex.P-1 and found them to be tallying. Pw-2 seized Ex.P-2-File bearing No.2/17/94, dated 26.7.1996 regarding the renewal of the permit of transporting teakwood, Ex.P-3 File bearing No.2/17/94 containing letter from L.A.Pandurao, Forest Officer, Narsapur addressed to the D.F.O., Medak, and Ex.P-4-Attendance Register of the office of D.F.O, Medak for the year 1996 in the presence of the mediators. He also prepared Ex.P-5 rough sketch of the scene of offence and Ex.P-6 post- trap mediator’s report. He served copies of Exs.P-5 and P-6 to the accused and obtained their acknowledgment. He arrested A-1 and A-2 and released them on bail. He searched the houses of A-1 and A-2. Exs.P-24 and P-25 are the search lists. He did not find any incriminating material in the searches conducted by him. Pw-6 P.Prabhakar Reddy took up investigation on 5th August, 1996. He examined Pws.1,2 and 4 and recorded their statements under Section 161 Cr.P.C. He submitted requisition to the Sessions Judge, Medak for recording 164 Cr.P.C statement of Pw-2. The Judicial First Class Magistrate, Andole recorded the 164 Cr.P.C statement of Pw-2, which has been exhibited as Ex.P-8. After obtaining necessary sanction, he filed report before the Principal Special Judge for SPE & ACB Cases, Hyderabad. 4. The learned Special Judge took the case on file as C.C.No.3 of 1998. On appearance of the accused and on furnishing copies of the documents to them, the learned Special Judge framed charges under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988. He read over and explained the charges to the accused, for which they pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined six witnesses as Pws.1 to 6 and proved 26 documents as Exs.P-1 to P-26 apart from exhibiting 10 Material Objects as M.O.s.1 to 10. After closure of the prosecution evidence, the learned Special Judge examined the accused under Section 313 Cr.P.C putting the substance of incriminating material appearing against them. A-1 pleaded that Pw-2 came to his office a week prior to the incident in respect of issue of transport permit and picked up a quarrel with him and when he asked him to leave the office, he left the office giving a threat that he will not allow him to work in the office. He further pleaded that on 2.8.1996 he went to the office of the Principal Chief Conservator, Hyderabad on official work and returned to his office at about 6.30 P.M. and while he was sitting in the office, Pw-2 suddenly rushed in to his office and tried to thrust some money on him. He pushed the currency notes and in the said process, currency notes fell on the table and immediately, ACB officials came in to the office and questioned him. He stated to the ACB officials that he neither demanded the bribe from Pw-2 nor accepted the bribe from him. A-2 stated in 313 Cr.P.C examination that he is not the sanctioning authority and that Pw-2 picked up a quarrel with him and office Superintendent and that the office Superintendent asked Pw-2 to go out from the office and that Pw-2 while leaving the office stated that he will see as to how he would work in the Department. He further pleaded that on 2.8.1996, he went to the Divisional Forest Office, Medak to deliver some urgent tappal at 6.10 P.M., and at that time, the office Superintendent was found in his chair and while he was conversing with him, Pw-2 came to the office and tried to thrust some amount in to his hand and he aborted his attempts and in the process, the currency notes fell on the table. In the meanwhile, ACB officials came and questioned him and he stated to the ACB officials that he neither demanded nor accepted the bribe from Pw-2. 6. The accused examined three witnesses on their behalf to probabilize their defence. Dw-1 Rama Subbaiah is a night watchman in the office of the Divisional Forest Officer, Medak. Dw-2 M.A.Azeez is Junior Assistant in the office of Divisional Forest Officer, Medak. Dw-3 M.A.Waheed is Superintendent in the Divisional Forest Office, Medak. They marked five documents as Exs.D-1 and Exs.X-1(a) to (d) on their behalf. 7. When the case was coming for arguments, the death of A-2 was brought to the notice of the trial Court and therefore, case against A-2 stood abated. The learned Special Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, found A-1 guilty for the offences under section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act 1988, convicted him accordingly and sentenced him, as stated supra. Hence, this Criminal Appeal by A1 Mohd. Sujat Ali. 8. Heard Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant/A1 and learned Special Public Prosecutor for ACB Cases appearing for the respondent/State. 9. Learned senior counsel appearing for the appellant/A1 submits that the appellant/A1 is not the sanctioning authority to permit PW.2 to transport teak logs from the patta lands to Hyderabad. He would also submit that PW.2 has been pursuing the matter with regard to transport of teak wood from the patta lands since the year 1995 and indeed twice he was permitted to transport the teak wood from the patta land and there was no complaint that the appellant/A1 demanded money on the earlier two occasions and therefore, it was highly improbable that the appellant/A1 demanded bribe for considering the application of PW.2 for transportation of teak wood on the third occasion. Learned senior counsel contends that the appellant/A1 made spontaneous statement at the time of raid that PW.2 thrusted the currency notes on him and thereupon, he threw the currency notes which fell on the table and the said spontaneous statement was not incorporated by PW.4 in the mediatornama. If the spontaneous statement of the appellant/A1 is considered, it exculpates him from the accusation that he demanded and accepted the bribe from PW.2. The learned senior counsel refers the evidence of DW.1 to DW.3 to probabalise the defence taken by the appellant/A1 that it is PW.2, who thrusted the currency notes on him without there being any demand. 10. Learned Special Public Prosecutor for ACB Cases appearing for the respondent/State submits that PW.1 is an independent witness and he has no enmity with the appellant/A1. PW.1 categorically states that he accompanied PW.2 to the Divisional Forest Office, Medak and in his presence, the appellant/A1 demanded the money and thereupon, PW.2 paid tainted amount of Rs.2,000/- to the appellant/A1, who accepted the same, and his evidence is fully corroborated by the testimony of PW.2 and in that view of the matter, the conviction and sentence of the apeplalnt/A1 for the offences under Sections 7 and 13(1)(d) r/w.13(2) of the Prevention of Corruption Act, 1988, is legal and proper and the same is not liable to be interfered with in this appeal. The learned Special Public Prosecutor further submits that the evidence of DW.1 to DW.3 cannot be relied upon as their testimony does not suit with the plea advanced by the appellant/A1. In elaborating his arguments, it is contended that the plea of the appellant/A1 is that PW.2 offered the money, which he refused and threw the currency notes on the table. Whereas, the evidence of DW.1 and DW.2 is that PW.2 thrusted the currency notes in the pocket of the appellant/A1 and thereupon, the appellant/A1 threw the currency notes on the table. It is not the case of the appellant/A1 that PW.2 thrusted the currency notes in his pocket. Therefore, the evidence of DW.1 to DW.3 cannot be relied upon. According to the learned Special Public Prosecutor, the trial Court considered the evidence of DW.1 to DW.3 very meticulously and rejected their testimony by giving cogent and convincing reasons. lt is contended by the learned Special Public Prosecutor that the conviction of the apeplalnt/A1 for the offences under Sections 7 and 13(1)(d) r/w.13(2) of the Prevention of Corruption Act, 1988, is based on cogent and convincing evidence and the same is not liable to be interfered with in this appeal. 11. To bring home the guilt of the appellant/A1 for the offences with which he stood charged, prosecution examined 6 witnesses and proved 26 documents and exhibited 10 material objects. The appellant/A1 took the plea that PW.2 thrusted the currency notes which he refused and threw the currency notes and thereby the currency notes fell on the table. To probabalise his defence, he examined 3 witnesses and marked 6 documents. 12. Indisputably, PW.2 applied for permission to transport the teak logs cut from the patta land. He could not lift the entire material from the patta land within the stipulated period. Therefore, he submitted an application to the Divisional Forest Officer, Medak, for lifting the left over material from the patta land. His application came to be forwarded by the Forest Range Officer, who has been examined as PW.4. His application reached the office of the Divisional Forest Officer by 30.07.1996. PW.2 testifies that on 30.07.1996, he went to the house of A2 B.Anandam and the said Anandam asked him to come on the following day. On 31.07.1996 he went to the house of A2 B.Anandam, who took him to the house of the appellant/A1 Mohd.Sujat Ali. The appellant/A1 and A2 B.Anandam demanded Rs.5,000/- and Rs.2,500/- respectively as bribe for issuing permission. He expressed his inability to meet their demand. Thereafter, the appellant/A1 reduced his demand to Rs.2,000/- and whereas, A2 B.Anandam reduced his demand to Rs.1,000/-. He informed that he would come to the office to meet their demand. He having made up the mind not to pay the bribe amount demanded by them proceeded to ACB Office, Sanga Reddy, where PW.5 Gokul Singh was camping. He presented Ex.P7 report on 1.8.1996 at 9 A.M. PW.5 received Ex.P7 report and got the contents verified and registered a case in Crime No.4/ACB- NZB/96 and issued Ex.P23 FIR. PW.5 instructed PW.2 to bring the proposed bribe amount on the next day and meet him at Kowdipally Guest House. Accordingly, PW.2 met PW.5 at Kowdipally Guest House. PW.5 summoned PW.1 and one Ramulu. A pre-trap panchanama came to be prepared. The significance of phenolphthalein test was explained to the mediators. The bribe money was treated with phenolphthalein powder and handed over the same to PW.2 with specific instructions to give the same to the accused on demand. 13. PW.2, accompanied by PW.1, went to the office of the Divisional Forest Officer on 02.08.1996 and waited there till the arrival of A1 and A2. After the arrival of A1 and A2, PW.2, accompanied by PW.1, asked the appellant/A1 about his application and thereupon, the appellant/A1 and A2 B.Anandam demanded the money. PW.2 handed over tainted money i.e., MO.1 to the appellant/A1, who received the same. Thereafter, PW.1, who accompanied PW.2, gave the pre- arranged signal to the trap party. PW.5 along with the trap party received the signal and rushed to the office of the Divisional Forest Officer. On seeing the trap party, the appellant/A1 and A2 B.Anandam threw the currency notes on the table. PW.5 prepared post-trap panchanama, which has been exhibited as Ex.P6. PW.1 and PW.2 are material witnesses to speak of the demand and acceptance of the bribe. PW.1 is a Veterinary Doctor and he has no motive to speak false against the appellant/A1. He categorically states that he accompanied PW.2 to the office of the Divisional Forest Officer and in his presence, the appellant/A1 and A2 B.Anandam demanded the bribe and thereupon, PW.2 handed over the tainted amount to them. PW.2 is the person, who handed over the tainted amount to the appellant/A1 and A2 B.Anandam on their demand. The evidence of PW.1 and PW.2 is cogent ant convincing. There is no reason to discard their testimony. 14. A contention has been advanced by the learned senior counsel appearing for the appellant/A1 that by the time PW.5 entered the office the currency notes were on the table, and it was because of the appellant-A-1’s refusal to receive the same and in which case, one of the essential ingredients of offence as to acceptance is absent. The learned senior counsel refers the evidence of DW.1 and DW.2 in support of his contention. 15. It is the evidence of DW.1 that PW.2 thrusted the currency notes in the pocket of the appellant/A1. It is not the plea of the appellant/A1 that PW.2 thrusted the amount in his pocket. Therefore, the evidence of DW.1 cannot be given any credence. 16. It is also contended by the learned senior counsel that PW.2 came to the office of the appellant/A1 a week prior to 02.08.1996 and entered into an altercation with the appellant/A1 and A2 B.Anandam. Had there been such an incident, the appellant/A1 must not have entertained PW.2 when he visited the office on 02.08.1996. It is also to be noted that neither the appellant/A1 nor A2 B.Anandam presented any report to their higher-ups about the conduct of PW.2. In the absence of any such complaints to their higher-ups, it is highly difficult to accept the version of DW.2 that a week prior to 02.08.1996, PW.2 entered in the office and picked-up a quarrel with the appellant/A1 and A2 B.Anandam. The learned senior counsel by referring the evidence of DW.3 contends that the appellant/A1 did not attend the office on 30.07.1996, 31.07.1996 and 01.08.1996 since his daughter seriously fell ill and therefore, the question of PW.2 meeting the appellant/A1 at his residence on 01.08.1996 does not arise. Ex.P4 is the Attendance Register. The Attendance Register indicates that the appellant/A1 attended the office on 30.07.1996, 31.07.1996 and 01.08.1996. According to the learned senior counsel, PW.5 compelled the appellant/A1 to sign on Ex.P4 Attendance Register at the time of preparing post-trap panchanama-Ex.P6. I find it difficult to accept the contention of the learned senior counsel, since the post-trap panchanama-Ex.P6 came to be conducted in the office of the appellant/A1 and in case of any threats, the staff present in the office must have resisted the threats of PW.5. It is also to be noted that by the time the trap was laid, the application filed by PW.2 seeking permission to transport the material to Hyderabad was pending consideration. The File was to be processed through the appellant/A1. This fact has been admitted by DW.3. It is trite to refer relevant portion of the evidence of DW.3 in his own words and it is thus: “I worked at Divisional Forest Office as Superintendent from 23rd September, 1992 to 7-6-1997. A.1 was working in the said office since 3 or 4 months prior to my joining in that office till the date of trap he worked there. All the files pertaining to issuance of transport permits, pertaining to felling of trees, etc. have to be routed through the A.O.1 in that office. The transport permits relating to P.W.2 were routed through A.1 from 1994 onwards.” Such is the evidence available on record, the contention of the learned senior counsel that the appellant/A1 is not concerned with the File cannot be sustained. 17 It is nextly contended by the learned Senior Counsel that the place where appellant-A-1 sat in the office is not visible to the persons standing outside the office and in which case, the version of the prosecution as to the trap party receiving pre-arranged signal from Pw.1 as soon as the appellant-A-1 accepted the tainted amount cannot be believed. Learned Senior Counsel refers the evidence of Pw-1 in support of his