* THE HONOURABLE SRI JUSTICE B.N. RAO NALLA + CRIMINAL APPEAL No.2315 OF 2004 % Date: 08-09-2011 # V. Vaman Rao .. Appellant v. $ State of Andhra Pradesh, rep. by its Special Public Prosecutor for ACB Cases .. Respondent ! Counsel for the appellant : Sri K. Surender ^ Counsel for the respondent : Sri R. Ramachandra Reddy Standing Counsel for ACB Cases < GIST: > HEAD NOTE: ? CASES REFERRED: 1. 2010(1) ALD (Crl) 497 (SC) 2. AIR 1981 SC 1235 3. AIR 2002 SC 486 4. 2002 SCC (Cri) 1270 5. (2006) 12 SCC 277 6. (2004) 9 SCC 333 C/15 THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.2315 OF 2004 JUDGEMENT: Aggrieved by the Judgment dated 25-10-2004 in C.C. No.20 of 1994 passed by the learned Special Judge for SPE & ACB Cases – cum - IV Additional Chief Judge, City Civil Court, Hyderabad convicting the appellant – accused officer for the offences under Sections 7 and 13 (1) (d) (i) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short “the PC Act”) and sentencing him to rigorous imprisonment for one year and also to pay a fine of Rs.1,000/-, in default of payment of fine to suffer simple imprisonment for one month for the offence under Section 7 of the PC Act and further sentencing him to suffer rigorous imprisonment for two years and also to pay a fine of Rs.2,000/-, in default of payment of fine to suffer simple imprisonment for three months for the offence under Section 13 (1) (d) (i) read with 13 (2) of the PC Act, the present appeal is filed on the ground that the conviction and sentence recorded against him (appellant) is contrary to the evidence and material on record and the trial court failed to appreciate the evidence in right perspective and erroneously held that the appellant is guilty of the said offences. 2. The case of the prosecution in brief is that the appellant, who was a Mandal Revenue Officer (Public Servant) of Bheemadevarapalli of Karimnagar District had demanded and accepted an amount of Rs.300/- from PW.1, the defendant facto complainant, on 21-09-1993 at about 4-55 p.m. in his office for showing official favour for issuing ‘lavoni patta’ in favour of the second son of PW.1 for an extent of Acs.2-00 in Survey No.609/1 of Kothapalli village of Bheemadevarapalli Mandal, Karimnagar District. 3. That two months prior to 20-09-1993, on coming to know that lavoni pattas were being allotted by the Government, PW.1 approached the appellant and requested him to allot Acs.2-00 of land that was being cultivated by his son Komarelli and upon that the appellant promised to do so. That on 18-09-1993, having coming to know that the pattas were ready, PW.1 approached the appellant and enquired about the lavoni patta in favour of his second son, whereupon, the appellant informed him that they were ready but he demanded Rs.300/- as bribe for allotting the same and asked him (PW.1) to visit him in his office on 21-09-1993 and pay Rs.300/-. 4. That with an intention to avoid payment of bribe, PW.1 approached LW.10, the DSP ACB (P.L. Raju), and lodged Ex.P- 1 before him. As per the directions of the DSP ACB, PW.6, the Inspector of police, ACB, made preliminary enquiry and submitted a report to the LW.10, the DSP ACB (P.L. Raju), who in turn obtained permission from the higher authorities. Thereafter, basing on Ex.P-1 lodged by PW.1, a case in Crime No.6/ACB, KMNR/93 for the offences under Sections 7, 11 and 13 (2) read with 13 (1) (d) (i) of the PC Act was registered on 21-09-1993. 5. That Ex.P-1 pre-trap - first mediators report proceedings were prepared in the presence of PW.3 and LW.3 (R.Sripal Reddy), who acted as mediators. LW.10, the DSP ACB (P.L. Raju), PW.6, another inspector Salman Rao were also present. After verifying the contents of Ex.P-1, the trap party arranged to trap the appellant and currency notes containing phenolphthalein powder were put in the pocket of PW.1. PW.2 accompanied PW.1 to the office of the appellant to watch the transaction. After PW.1 reached the office, the appellant enquired PW.1 whether he had brought bribe amount and on that PW.1 handed over the tainted bribe amount to the appellant and he received the same with his right hand and put the same in his right side pant pocket. That in response to the pre-arranged signal from PW.1, the trap party entered the office of the appellant and subjected both hands of the appellant to Sodium Carbonate solution test and found that the right hand fingers of the appellant turned pink (positive). Thereafter, on being asked by LW.10, the DSP ACB (P.L.Raju)regarding bribe amount, the appellant removed the tainted bribe amount from his right side pocket. The appellant explained during the post trap proceedings (2nd mediators report) under Ex.P-3 that he had taken the said amount from PW.1 as hand loan and the same was seized by LW.10, the DSP ACB (P.L. Raju). Thereafter, PWs.1, 2 and 3 were examined and their statements were recorded under Ex.P.3. PW.6 conducted investigation and after concluding the same, he had laid charge sheet. 6. In support of its case, the prosecution examined PWs.1 to 6 and got marked Exs.P-1 to P-12 and M.Os.1 to 7, whereas no witnesses were examined on behalf of the appellant except marking a copy of the award passed by the Labour Court dated 21-09-1993 as Ex.D-1 on his behalf. 7. The trial court, taking the evidence of the prosecution witnesses and other material on record into consideration, found the appellant guilty of the offences punishable under Sections 7 and 13 (1) (d) (i) read with 13 (2) of the PC Act and convicted and sentenced him as stated above for the same. Aggrieved by the said conviction and sentence, appellant preferred this appeal assailing the same. 8. Now the question that arises for consideration is whether the trial has committed any error, irregularity or illegality in finding the appellant guilty of the offences charged with? 9. It is the case of the appellant that he was falsely implicated in this case by PW.1 to gain political mileage as he wanted Acs.2-00 of land in Survey No.609/1 of his village to be allotted as lavoni patta in favour of his second son. PW.1 was a former Sarpanch of the village and he was a known pairavikar from his village. The appellant could not please PW.1 by assigning lavoni patta land in favour of his son as the said land was “bancharai land” and there was a prohibition from assigning the same vide G.O.Ms. No.406. That, such a land could be allotted in favour of poor people only when the prohibition is lifted by the orders of the District Collector by way of excision. PW.1, as Sarpanch of the village for several years managed lavoni patta land allotted in favour of his elder son three years prior to the appellant joining as the Mandal Revenue Officer of Bheemadevarapalli, that he wanted allotment of such land in favour of his second son also. That, since the appellant, who was the Mandal Revenue Officer, had informed some of the villagers that assigning of such land was possible only after excision, taking a clue from the same and thinking that the appellant was not in favour of assigning such land in favour of his second son, who was already having land, PW.1 thought of and in fact got the appellant falsely implicated in this case. That though PW.1 did not state in Ex.P-1 complaint that the appellant had initially demanded an illegal gratification of Rs.500/- and the same was reduced to Rs.300/-, with the intention of improving the prosecution case, he has falsely stated so. He has stated in his evidence that while preferring his oral complaint before LW.10, the DSP ACB (P.L. Raju), he had stated so, but the said DSP ACB did not mention the said fact while taking down his oral complaint that the appellant had demanded Rs.500/- as illegal gratification and later reduced the same to Rs.300/-. That it is absolutely false statement made by PW.1 during the course of his examination. Moreover, LW.10, the DSP ACB (P.L. Raju), was not examined as one of the prosecution witnesses. That had he been examined, perhaps, the truth of the statement of PW.1 would have been ascertained. That in any case, it is contended that non-examination of LW.10, the DSP ACB (P.L. Raju) who has laid the trap, is a lacunae in the prosecution case. 10. That being a former Sarpanch of the village and having contested as M.L.A., PW.1 is a politician and pairavikar, as such, his evidence should not be considered at all and even if considered, it should be weighed cautiously as his background also reveals that he had preferred false complaint against public officials and he was stated to be a liar in a case in Criminal Appeal No.562 of 1981 by this Court. 11. That as the appellant was considered to be an upright official and thinking that he would not accept the currency, the tainted currency notes were concealed in two folded white sheets and handed over the same to him (appellant) stating that they were the application seeking help of the Government for digging and deepening of the wells in the village. That since the tainted currency notes were concealed in the papers, which the appellant had received from PW.1 innocently and placed them in his right side pant pocket, his right hand fingers proved positive to the sodium carbonate solution test. That the prosecution had failed to explain as to how the tainted currency notes were found placed in the folds of two white sheets when it is alleged that the tainted currency notes were put in the pocket of PW.1 during the course of Ex.P-2 pre-trap proceedings and as per the evidence of PW.1, the tainted money was handed over by him to the appellant, who accepted the same and placed them in his right side pant pocket; that it is not the case of the prosecution that the tainted currency notes were placed in the folds of two white sheets. 12. That the prosecution has miserably failed to comply with the usual procedure of subjecting the wearing apparel to the S.C. solution test as the right side pant pocket of the appellant was not subjected to test. Therefore, it is also a lacuna in the case of the prosecution, which it has failed to explain. 13. That the second son of PW.1, who is alleged to be the beneficiary of the land, was not examined nor the alleged lavoni patta was produced before the Court which was said to have been prepared in favour of the beneficiary or the application seeking allotment of such lavoni patta by PW.1 in favour of his second son. That the prosecution has also failed to explain as to why an independent official mediator was not send along with PW.1 to the office of the appellant instead of PW.2, who is a close associate of PW.1, though LW.10, the DSP ACB (P.L. Raju), did not ask PW.1 to bring any accompanying person and the same was admitted by PW.1 himself. 14. So for as the evidence of PW.2 is concerned, it is his case that PW.2 has stated that when they entered the chamber of the appellant, PW.1 told the appellant that he brought Rs.300/- with regard to lavoni patta of his second son as demanded by him (appellant) and then PW.1 took out the currency notes and gave it to the appellant, then the appellant kept the currency notes in the pant pocket and then he (PW.2) went out and gave prearranged signal to the trap party. That the evidence of PW.2 does not reveal in any way that the appellant had demanded the illegal gratification from PW.1 when both of them entered the chamber of the appellant. That it is in the evidence of PW.1 that he entered the chamber of the appellant at 4-30 pm and by the time transaction was complete, it was 5-00 PM, whereas PW.2 has stated in his cross-examination that about five minutes after their entry in to the chambers of the appellant, he came out and gave prearranged signal to the trap party since the transaction was completed by then. Therefore, the evidence of both the witnesses in this regard is stated to be contradicted. That the time factor in this regard is crucial and relevant for deciding the happening and/or non- happening of the main event and in that regard the evidence of PWs.1 and 2 is suspicious and fatal to the case of the prosecution. If the transaction was real and in fact it had taken place, both the witnesses could have concurred each other as to the time factor of the happening of the main event but they would not have differed. 15. That it is in the evidence of PWs.1, 2 and 6 that the entry of PWs.1 and 2 into the chambers of the appellant was delayed by one and half hour as they were supposed to meet the appellant and the transaction was expected to take place at 3-00 PM. However, due to absence of the appellant for one and half hour, they had to wait there till the appellant had returned at 4-30 PM, and, as such, there was ample opportunity for PW.1 to have concealed the alleged bribe amount in folds of two white sheets since PW.1 being a politician and pairavikar was aware that the appellant was an upright person and he would not accept the bribe amount. During the course of Ex.P-3 post- trap proceedings that he had received the tainted bribe amount from PW.1 as loan is concerned, the case of the appellant is that the same is inadmissible in law since it is made before LW.10, the DSP ACB (P.L. Raju), who is a police officer, and as such the same is hit by the provisions of Section162 of Cr.P.C. 16. PW.3, who is an Agricultural officer working in Fertiliser Control Order Laboratory at Warangal, has acted as one of the mediators to pre and post-trap panchanama proceedings, Exs.P-2 and P-3 respectively. He was examined as such to prove the contents of Exs.P-2 and P-3. During the course of his examination, he has reiterated the contents of the said exhibits except what he has admitted in his cross-examination that during the course of post-trap proceedings, appellant had taken out some papers from his pant pocket and currency notes were found in two folded white sheets among those papers. That only those two sheets were subjected to S.C. text. However, during the course of post-trap proceedings, he denied a suggestion that the appellant had stated that PW.1 had given him folded papers representing the same to be applications and that he was not aware about PW.1 keeping currency notes in those two folded white papers. In this context, it is the case of the appellant that when those papers were handed over to the appellant by PW.1, appellant was in a hurry as he was leaving the office and as s such he had no time and opportunity to verify those papers. That he had simply received those papers and put them in his pant pocket and as such he had no knowledge of the tainted amount being concealed in the folded papers. That the denial of the suggestion by PW.3 that the appellant had not stated so during the course of post-trap proceedings is of no consequence to the case of the prosecution. That in his chief examination, PW.3 has also stated that when he along with the trap party was proceeding towards the office of the appellant after receiving pre-arranged signal, PW.1 came to them by running and informed that the appellant was going on scooter. That they went there and stopped the scooter of the appellant and the same fortifies the case of the appellant that at that time he was in a hurry as he was leaving the office and as such he could not ascertain what was inside the folded papers. 17. PW.4, who is the Revenue Divisional Officer, was examined to prove lavoni patta being prepared in favour of the second son of PW.1. This witness was examined after more than a decade and he has spoken to the fact without looking at the record that the appellant had put up a note for allottment of land to 33 persons including the son of PW.1 and the review committee had accepted the proposal and as such he instructed the appellant to issue pattas. In this connection, it is made out by the case of the appellant that Ex.P-10 is the relevant record to show the transactions of allotting lavoni pattas in favour of landless poor of the village. It is also supposed to contain the transactions of the Collector lifting prohibition of allotting bancharai land in Survey No.609/1. However, Ex.P-10 file forms part of the Court record being marked through PW.6, the Investigating Officer, containing no particulars as to the above matters. That even then the trial Court has erroneously accepted the evidence of PW.4 though the evidence of PW.4 ha got no basis in Ex.P-10 record. 18. It is further the case of the appellant that though the name of the second son of PW.1 finds place in the second sheet of Ex.P-10 and the proposal to allot Acs.31-00 of land in Survey No.609/1 of the village, among other things, in the first sheet, there is nothing to show that the lavoni patta in favour of the second son of PW.1 was already prepared and it was about to be handed over to him and that it was at that time PW.1 approached the appellant and the appellant alleged to have demanded the bribe for handing over the said prepared patta to him. The prosecution has failed to prove the same since no such patta is produced in the Court nor was the beneficiary examined and further no such excision proceedings of the Collector finds place in Ex.P-10 and that in the first sheet thereof the proposal was subject to the approval of excision proposals. 19. PW.5 is a formal witness. He has spoken as to the obtaining of Ex.P-6, sanction order in G.O.Ms. No.478 dated 24-05-1994 for prosecuting the appellant. 20. PW.6, who was the Inspector of Police, Karimnagar Range, Karimnagar during the relevant time, is the Investigating Officer. He stated in his evidence as to PW.1 preferring oral complaint – Ex.P- 1 before LW.10, the DSP ACB (P.L. Raju), and basing on that FIR – Ex.P-7 was registered. He has also spoken as to his verifying the genuineness of the complaint and the reputation of the appellant. He has also spoken as to Exs.P-2 and P-3, pre and post-trap proceedings respectively, leading to trapping of the appellant, his arrest and release on bail. That the statement of PW.1 and the accompanying witness PW.2 were recorded by the Judicial Magistrate, Karimnagar under Section 164 Cr.P.C. He has also spoken as to his laying charge sheet into the Court. He has only testified as to the investigation that has been done by him into the case. This witness has admitted that Ex.P-10 file was in the possession of Senior Assistant Ganapati Reddy and the same was seized by him. That he had not come across any excision proposals during his investigation and he did not find any endorsement made by the appellant on Ex.P-10 to prepare lavoni patta certificate in favour of the beneficiaries of the Kothapalli village. That the trial Court has recorded (during the cross-examination in this connection) that the witness volunteered that the investigation disclosed that on the instructions of the appellant, patta certificate was prepared in the name of the son of PW.1 and that the same was initialled by the Senior Assistant. However, in the next breath he has stated that no patta certificate was available in Ex.P-10 file that was seized by him during the post-trap proceedings. In this regard, it is tried to be made out by the case of the appellant that the evidence of PW.6 is self-contradictory since in one breath he says that his investigation did not disclose any excision proposal being made to the Collector and on the other, he volunteered that the patta certificate was prepared in the name of the son of PW.1 and he also says that no patta certificate was available in Ex.P-10 file. That if any assignment is to be made in favour of beneficiaries, it is subject to approval of excision proposal by the Collector. That it is only after the Collector approves the excision proposals thereby lifting the prohibition on allotting bancharai lands in favour of the landless poor of the village, as per Ex.P-10, the question of preparing of lavoni pattas would arise. PW.6 has stated in clear terms in his cross-examination that no such patta certificate was available in Ex.P-10 file. He stated that he had not come across, during the course of investigation, any excision proposal to be put forth on behalf of the Kothapalli village beneficiaries to the Collector in respect of the land in Survey No.609/1. He has also further testified that no patta certificate was available in Ex.P-10 file. Therefore, it has been admitted to show that the evidence of PW.6 is of no help to the case of the prosecution since his evidence is self-contradictory. 21. In A. SUBAIR v. STATE OF KERALA[1], it was held to the effect by the Apex Court that mere recovery of currency by itself cannot be proper or sufficient proof of demand and acceptance of bribe by the accused; that when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. 22. In BANSHI LAL YADAV v. STATE OF BIHAR[2], it was held to the effect that before a presumption can be raised, the burden is on the prosecution to prove that the accused had voluntarily accepted gratification other than legal remuneration. That if the accused when examined under Section 313 Cr.P.C. stated that the currency notes were thrusted in his pocket, that statement by itself is not sufficient to satisfy the necessary ingredients of the offence so as to raise the presumption that accepting legal gratification is a voluntary act which is missing in the statement of the accused under Section 313 Cr.P.C. Therefore, the statement of the accused by itself cannot provide the necessary factual basis or fact situation which must exist before presumption can be raised. 23. That in the case on hand, the plea of the appellant is that PW.1 had handed over two folded white sheets to him by concealing the tainted bribe amount in it in the garb of applications seeking help from the Government to dig and deepen the wells in the village, which the appellant had received and put in his right side pant pocket without knowing the fact that the tainted bribe amount was concealed therein, as he was leaving the office in a hurry. That as such he had no time and opportunity to verify the said fact. Therefore, relying on the aforesaid decision, it is contended that presumption under Section 20 of the PC Act cannot be raised. 24. In PUNJABRAO v. STATE OF MAHARASHTRA[3] and M. ABBAS v. STATE OF KERALA[4], it was held to the effect by the Apex Court that it is a settled law that in the case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether the explanation can be construed to have established his defence. From the above, it is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can