HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2183 of 2004 Date:11.02.2011 Between: C. Mahipathi ….Appellant And: State through Standing Counsel for ACB and SPE Cases, High Court of A.P., Hyderabad .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2183 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for SPE & ACB cases-cum- V Additional Chief Judge, City Civil Court, Hyderabad in C.C.No.19 of 1994. The appellant herein was prosecuted for the offence under Section 7, 13(1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short, the Act). The brief case of the prosecution is that the accused C. Mahipathi worked as Junior Assistant in the office of the Executive Engineer, Minor Irrigation Division, Penukonda, Ananthapur district from 3.8.1987 to 11.3.1994 and as such he is the public servant withinthe meaning of Section 2(c )(1) of the Act. The complainant M. Chidambarappa worked as Work Inspetor, IrrigationDepartment Kadiri Subdivision, Kadiri. He submitted his L.T.C bill on26.2.1993 and it was forwarded to the Executive Engineer, Penukonda on 27.2.1993. The accused processed the bill and obtained the signature of the Divisional Accounts officer on 29.3.1993. The complainant represented to his superior officers several times for re-fixing of his pay, as he felt injustice was caused to him and basing on the representation of the work charged Employees Association, Irrigation Circle, Ananthapur requested all the Executive Engineers in his circle to take necessary action pertaining to pay revision of work charged employees through his memo dated 26.2.1992. Several times the complainant met the accused and requested him to process the bill, he did not do so and when the complainant met the accused, he demanded Rs.200/- as illegal gratification to do official favour and instructed him to pay the bribe on 24.1.1994 at Penukonda. Then the complainant lodged a complaint with the Deputy Superintendent of Police, A.C.B, Ananthapur and in turn he registered the same as a Crime No.3/ACB ATP/94 and trap was organised by him on 24.1.1994. During the trap, the complainant met the accused officer at his office on 24.1.1994 at about 1.20 p.m. The accused again demanded and accepted Rs.200/- towards gratification other than legal remuneration from the complainant on the way to his house at Penukonda. The ACB officials intercepted and the hands of the accused when subjected to Sodium Carbonate test, it gave positive results. The tainted amount was recovered from pant’s hip pocket of the accused and the same was seized. The inner lining of pant’s hip pocket of the accused also gave positive result to the test. The relevant LTC bill and the file relating to the repay fixation of the complainant were seized from the locked almirah of the accused officer in his presence at Penukonda at his instance. Hence, he was charge sheeted for the offence punishable under Section 7, 13(1) (d) read with Section 13(2) of the Act. The learned Special Judge for A.C.B Cases has framed the charges under Section 7, 13(1) (d) read with Section 13(2) of the Act against the accused and the accused pleaded not guilty for the said charges. In order to establish the guilt of the accused, the prosecution has examined P.Ws.1 to 6 and got marked Exs.P.1 to P.13 and M.Os.1 to 5. In Section 313 examination, the accused denied the incriminating material against him in the evidence of the prosecution witnesses and submitted his written statement. After taking into consideration of both oral and documentary evidence and the defence taken by the accused, the learned Special Judge for A.C.B cases has found the accused guilty and convicted the accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of three months for the offence under Section 7 of the Act and the accused was acquitted for the charges framed under Section 13(1)(d) read with Section13(2) of the Act. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. Now the point that arises for consideration is whether the accused officer accepted the amount of Rs.200/- on 24.1.1994 towards illegal gratification other than legal remuneration for doing official favour i.e., for getting passed pending L.T.C bill and early fixation of the pay of the complainant? Heard Sri O. Kailashnath Reddy, learned counsel for the appellant and Sri Ghania Musa, Special Public Prosecutor for A.C.B Cases. The learned counsel for the appellant has pleaded that the accused officer is not the person who can pass the L.T.C bill and sanction the revision of his pay and as the defacto-complainant expired during the pendency of the trial, there is no evidence to show that the accused has demanded and accepted the illegal gratification of Rs.200/- from the defacto-complainant. The learned counsel for the appellant has further pleaded that the accompanying witnesses and the Constable who was directed by the Investigating Officer to accompany the defacto-complainant were not examined and as per the evidence produced by the prosecution, it is established that the accused officer has already processed the bills and obtained the signature of the Divisional Accounts Officer P.W.2 and sent to the Executive Engineer for his sanction and the same was not pending with him as on the date of alleged payment of illegal gratification. As such as on the date of alleged payment of gratification, the said files are not with the accused officer. Therefore, the question of demand and accepting the illegal gratification by the accused officer does not arise. The learned Public Prosecutor has pleaded that the LTC and pay fixation bills are pending with the accused and even though he has obtained the signature of the Divisional Accounts Officer P.W.2, he did not obtain the signature of the Executive Engineer P.W.3 and in order to get the signature of the Executive Engineer he has demanded for payment of illegal gratification of Rs.200/- from the defacto-complainant. P.W.3 has specifically stated that he has not signed on the bills of the defacto- complainant as they were not placed before him by the accused. The Learned Public Prosecutor has further pleaded that from the evidence of P.W.1 receiving of the amount by the accused and recovered the same from his possession was established and even though the accused has pleaded that he has received the said amount towards the loan taken from him by the defacto- complainant and also that the amount was paid towards expenses for going to the Circle Office, but the same could not be established by the accused officer and as such the prosecution could able to establish that the accused officer has demanded and accepted the illegal gratification and as such the prosecution is entitled to draw the presumption available under Section 20 of the Act. Admittedly, the accused is working as a Junior Assistant in the office of the Executive Engineer, Minor Irrigation Division, Penukonda and the LTC bill and the pay fixation of the defacto- complainant were pending with him. It is not the case of the prosecution that he is the sanctioning authority for the said bills and he has to only process the bills and obtain the sanction order from the Executive Engineer. The learned counsel for the appellant has pleaded that the LTC bills were already processed and the pay fixation proceedings already submitted to the Circle Office and as such as on the date of the demand, the files pertaining to the defacto-complainant were not pending with him and as such the question of demand and acceptance of illegal gratification does not arise. According to the prosecution, the defacto-complainant submitted his LTC bills on 26.3.1993 and the same was forwarded to the Executive Engineer, Penukonda on 27.3.1993 and the Executive Officer has processed the said bill and obtained the signature of the Divisional Accounts Officer on 29.3.1993 and he has not obtained the signature of the Executive Engineer and when the defacto-complainant approached him on 19.1.1994 he demanded for payment of Rs.200/- as illegal gratification on 24.1.1994 and according to the prosecution after conducting of the successful trap, the said files relating to LTC and pay fixation were seized from the possession of the accused. The learned counsel for the appellant has pleaded that the files are seized from the chambers of the Executive Engineer and not from the possession of the accused. In support of his contention, he relied upon the evidence of P.W.1. P.W.1 in his chief-examination has stated that the accused handed over 5 sets of files taking out from his almirah and separate proceedings were recorded for production of those files. According to him among those five files, three files were relating to the defacto-complainant seized and returned the other two files after taking Xerox copies. P.W.5 Investigating Officer has also stated that he asked the accused about relevant files relating to the defacto-complainant about his LTC and pay fixation and accused officer voluntarily produced the files from his almirah in the office. But, P.W.1 in his cross- examination has stated that as seen from the file Ex.P.10, accused has put up a note on 22.1.1994 stating that the complainant is not entitled for any enhanced special promotion scale since he is not having required educational qualification and as seen from Ex.P.9 that the accused has made a pass order on 28.3.1993 for payment of the balance L.T.C amount of Rs.480/- and the Deputy Accounts Officer initialled it on 29.3.1993. The Divisional Accounts Officer S.A. Sattar (P.W.2) produced Exs.P.5 to P.10 before them. He has not observed that the said accounts officer brought Exs.P.5 to P.10 from the Chambers of the Executive Engineer. Exs.P-6 to P.10 are produced from his alimirah is not correct. Thus, P.W.1 has denied his previous statement about the accused producing the files from his alimirah. The Accounts Officer P.W.2 admitted that the Ex.P.9 is the Xerox copy of the L.T.C bill of the Chidambarappa and according to Ex.P.9, the total amount claimed is Rs.2,080.10 ps. An advance amount of Rs.1,600/- was already paid to that applicant and there remained a balance amount to be paid is Rs.480/-. He verified the said bills and put his initials on the bill on 29.3.1993. The accused took that bill for obtaining signature of the Executive Engineer in it. Thereafter the accused has not returned that bill. In the cross-examination, he has stated that as seen from Ex.P.9 LTC bill of Chidambarappa was put up and initialled by the accused on 28.3.1993 and he also initialled it on 29.3.1993. Accused came and informed him that when he has taken the bill Ex.P.9 to the E.E, the E.E stated that as there are no funds asked him to keep the bill pending and Ex.P.9 bill was kept pending for want of funds. As seen from Ex.P.10, accused has put up a note to the effect Chidambarappa is not entitled for any enhanced special promotional scale since his educational qualifications are less and he has put his initials under that note. When Chidambarappa approached him three or four times, he told him that as per rules he would not get any enhancement in his salary in the pay revision. Therefore, according to P.W.2, the accused himself has signed the LTC bill in the March, 1993 itself and the said bill was kept pending for want of funds. The Executive Engineer P.W.3 has specifically stated that the accused has not placed Ex.P.9 bill before him for his approval at any time. Chidambarappa when he went for camp to Kadiri represented to him about the pendency of Ex.P.9 bill and also about the pay revision application and after returning from the camp he has called the accused about this matter and asked him to put up the said bill and pay revision matter. The accused informed that the pay revision matter of the Chidamabarappa was already sent to circle office, but he did not place before him the pending LTC bill of Chidambarappa for his approval and on the day of trap, he has been to camp and after returned to his office he learnt about the trap. Therefore, as on the date of alleged demand, the said files are with the accused officer. But the evidence of P.Ws.1 to 3, it is clear that the defacto-complainant Chidambarappa has submitted the LTC bill for payment of balance amount of Rs.480/- in the month of March, 1993 and even though the accused and the Divisional Account Officer P.W.2 have initialled on 29.3.1993 itself, the same was not placed before the Executive Engineer. Even if the contention of the appellant is accepted that the said bill is kept pending for want of funds, according to P.W.2 in the moth of March, they will be generally busy and according to him the LTC bill was kept pending for want of funds. But the defacto- complainant approached him on 19.1.1994 for clearing the said LTC bill and pay revision file and at that time, the accused demanded for payment of Rs.200/- to be paid on 24.1.1994. Therefore, as on the date of the alleged demand on 19.1.1994, the question of keeping the LTC bill for want of funds does not arise, as the said bill was kept pending for nearly 10 months after processing. With regard to the pay revision file, P.W.1 admitted in his cross-examination that as seen from Ex.P.10 file that the accused has put up a note on 22.1.1994 and stated that the complainant is not entitled for any enhanced special promotion scale since his educational qualifications are less and the D.A.O put his initials there. Therefore, the said file was processed only after making the demand on 19.1.1994. Therefore, as on the date of alleged demand, both the LTC and pay revision files are with the accused officer. The accused officer in his explanation has stated that the said files are kept in the alimirah of the Executive Engineer. But, the P.W.3 Executive Engineer has denied about having alimiary in his room and also denied as on the date of trap all the pending bills were kept on the top of the alimarh in his office room. With regard to the recovery of the amount from the possession of the accused, the P.W.1 is the mediator for the trap and has specifically stated that after receiving the signal from the complainant they have followed the accused and the accused has entered into his house and he followed him and the accused was changing his dress and then the D.S.P and themselves disclosed their identity to the accused and then the accused felt a little bit panic and then the DSP immediately got prepared sodium carbonate solution into separate glass tumblers and made the accused to dip his right hand gingers in one tumbler which turned into pink. The DSP asked the accused where he has kept the amount which he received and then accused stated that he has kept the amount in the hip pocket of his pant and picked up his pant which is hanging to a peg to the wall and took out the amount from the hip pocket and produced before them. The Investigating Officer P.W.5 also supported the version of P.W.1 with regard to the recovery of the amount from the possession of the accused. Therefore, the prosecution could able to establish about the recovery of the amount of Rs.200/- from the possession of the accused. The learned Public Prosecutor has pleaded that when the amount was recovered from the possession of the accused and as the accused has failed to establish his contention that the amount was paid by the complainant towards the loan taken by him are towards the expenditure for going to circle office they are entitled to draw the presumption under Section 20 of the Act and in support of his contention he relied upon a decision rendered in Jainarain v. The State of U.P.,[1] wherein the Apex Court held: “Where the accused person in a prosecution under Section 161, Penal Code, read with Section 5(2) of the Prevention of Corruption Act, caught by a trap, did not dispute the recovery of the initialled currency notes from his pocket and the explanation offered by him was disbelieved on account of infirmities, the conviction on the basis of prosecution evidence consisting only of the witness who had participated in the Trap was not illegal.” The other decision relied upon by the learned Special Public Prosecutor is rendered in Madhukar Bhaskara Rao Joshi v. State of Maharashtra[2] wherein it was held: “Fact that public servant is found in possession of currency notes smeared with phenolphthalein. Sufficient to draw legal presumption under section. Prosecution need not further prove that money was paid to public servant.” The next decision relied upon by the learned Public Prosecution is rendered in T. Shankar Prasad v. State of A.P.[3] wherein the Apex Court has held: “Acceptance of illegal gratification by a public servant. Presumption under Section 20 of the Act is a presumption of law and cast on obligation on Court to operate it in every case brought in. It is rebutted by proof and not by explanation.” Therefore, in view of the above referred decisions, when once the amount was recovered from the possession of the accused, the prosecution is entitled to draw the presumption unless the same is rebutted by producing sufficient evidence. The learned counsel for the appellant, has on the other hand pleaded mere recovery of the amount in the absence of demand and acceptance, the accused cannot be held guilty for the offence under Section 13(1)(d) 13(2) of the Act and in support of his contention he relied upon a decision rendered in Sudershan Pareek v. State of Andhra Pradesh[4] wherein a Single Judge of this Court has held: “Duty cast upon prosecution to prove demand and acceptance. Either of two, if not established, accused cannot be held guilty of offence punishable under Section 13(1)(d) 13(2) of the Act.” The other decision relied upon by the learned counsel for the appellant i s Mudunuri Bapiraju v. State of Andhra Pradesh[5] wherein a Single Judge of this Court has held: “Demand and acceptance has to be established by the prosecution and the said demand of illegal gratification for doing official favour and received or agreed to receive by the accused officer only after discharge of said burden, presumption under Section 20(1) of the Act can be drawn shifting burden on to appellant to rebut the same.” Therefore, according to the learned counsel for the appellant that the demand and acceptance has to be established and then only presumption is available to the prosecution. In the present case, admittedly the defacto-complainant is no more by the date of commencement of the trial and as such his evidence could not be produced to establish the demand made by the accused for doing the official favour. From the evidence of P.W.1, it is established that the defacto-complainant has stated before them about the accused demanding the amount and the Investigating Officer P.W.5 had laid a trap and the said trap was found to be successful and the amount was recovered from the possession of the accused. More over as already observed above as on the date of trap, the said files pertaining to the defacto-complainant i.e., L.T.C bills and pay fixation files were with the accused. Therefore, it has to be presumed that the accused officer has received the amount towards illegal gratification to do the official favour under Section 20 of the Act. The accused officer even though pleading that he has received the amount of Rs.200/- which has paid as loan to the defacto-complainant at one stage and at another stage he has stated that towards expenses for going to Central Office but he could not establish the same by producing necessary evidence. Mere giving explanation for receiving the amount is not sufficient to rebut the presumption available under Section 20 of the Act but he has failed to establish the same Thus, the lower court has rightly came to the conclusion that the accused is guilty for the offence under Section 7 of the Act. Thus, the finding of the lower court does not warrant any interference by this Court. The learned counsel for the appellant has pleaded that the quantum of sentence imposed by the lower court is excessive by taking into consideration of the alleged receiving of illegal gratification of Rs.200/- and in support of his contention he relied upon a decision rendered in Bechaarbhai S. Prajapati v. State of Gujarat[6] wherein the Apex Court has held: “Taking into consideration of the alleged bribe of Rs.200/- and as the offence took place about 7 years back, a lenient view has been taken that the minimum sentence of six months, held, in the interest of justice would be best served.” In the present case, also it is established that the accused has received of Rs.200/- towards illegal gratification i.e., in the year 1994 and he was convicted after 10 years of the alleged incident and as such the incident has taken place 17 years back. Hence, taking into consideration of the circumstances of the case, the sentence of one year can be reduced to six months. In the result, the appeal is partly allowed confirming the conviction passed by the lower court in C.C.No.19 of 1994 dated 29.9.2004 under Section 7 of the Act and reduced the sentence to six months from one year and confirmed the fine imposed by the lower court. _____________________ P.DURGA PRASADJ. Date:11.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2183 of 2004 Date:11.02.2011 Gk. [1] AIR 1974 Supreme court 226 [2] AIR 2001 Supreme court 147 [3] 2004 CRI.L.J 884 [4] 2008(2) ALD (Crl.) 840 (AP) [5] 2010(1) ALD (Crl.) 314 (AP) [6] (2008) 11 Supreme Court Cases 163