State Of Andhra Pradesh vs Kesavapatnam China Swamy

2. One P. Ramakrishna Rao i.e. PW1 wanted to start a Kirana and General Stores at Gudivada and had submitted an application on 22.05.1995 with necessary enclosures in the office of the Deputy Commercial Tax Officer No.1, Gudivada seeking issuance of registration certificate. The application was forwarded to the respondent who, as Assistant Commercial Tax Officer No.1, Gudivada, District Krishna, was competent to issue registration certificate under the Sales Tax Act. In this connection PW1 met the respondent in his office on 16.06.1995 and requested him to issue registration certificate, at which time the respondent allegedly demanded Rs.1000/- as bribe. PW1 then went along with PW2 K.B. Narayana to meet the respondent on 22.06.1995 and requested for issuance of the certificate. On that day PW1 also furnished additional National Savings Bond in the sum of Rs.500/- as per directions of the respondent. The respondent after accepting the same reiterated his demand. It is alleged that on 23.06.1995 PWs1 and 2 again went to the office of the respondent and repeated the request for issuance of registration certificate. The respondent allegedly informed PW1 that the registration certificate was ready and would be delivered upon payment of bribe of Rs.1000/- as demanded. The respondent also instructed PW1 to produce the Day Book duly written upto 24.06.1995 for affixing his signature. When PW1 expressed his inability, the bribe amount was reduced to Rs.500/-. PW1 along with PW2 thereafter went to the office of the respondent on 01.07.1995 and made the request for registration certificate. The respondent allegedly repeated his demand and PW1 reluctantly agreed to pay the amount.

3. At this stage PW1 presented a report Ext.P1 on 01.07.1995 at 4.00 PM in the office of the Anti Corruption Bureau to PW8 N. Prasad, District Inspector ACB, Vijayawada, who in turn submitted it to PW9 DVSS Murthy, DSP, ACB, Vijaywada. PW9 registered the same as FIR and decided to lay a trap. On 05.07.1995 PW9 conducted pre-trap proceedings (Ext P23) in the presence of PWs1, 2 and the mediators during which time five currency notes of Rs.100/- each produced by PW1 were treated with Phenolphthalein powder and kept in the empty shirt pocket of PW1.

4. Thereafter on the same day at about 12.25 PM PW1 along with PW2 met the respondent in his office and upon being asked by the respondent, PW1 informed the respondent that he had brought the bribe amount of Rs.500/-. On the instructions of the respondent, PW4 Attender E. Kanakam affixed the rubber stamp on the registration certificate and handed over the same to the respondent, who then instructed PW4 to go away. Thereafter PW1 offered to give Rs.500/-as demanded earlier. The respondent asked PW1 to give him Rs.400/- only which amount was so given by PW1 and received by the respondent with his left hand. The respondent kept the amount on the papers lying on his office table. The respondent then called one K. Viswanadham, Junior Assistant dealing with registration work and on his directions PW1 paid the balance amount of Rs.100/- to said Viswanadham, who received the same and went back to his seat. The respondent thereafter took the Day Book (Ext. P9) from PW1 and affixed his signature putting the date as 23.06.1995 and returned the same to PW1. The registration certificate Ext.P8 was then delivered by the respondent to PW1

5. PW1 thereafter came out of the office leaving PW2 inside the office who kept talking with the respondent. Requisite signal having been given by PW1, PW9 with the raiding party entered the office of the respondent. He conducted appropriate test on the fingers of the respondent and Viswanadham which turned positive. The amount of Rs.400/- was recovered from the office table of the respondent and Rs.100/- from the almirah in front of the seat of Viswanadham. The numbers of the currency notes were verified and tallied by the mediators and the post trap proceedings (Ext. P24) were reduced to writing by the mediators.

6. After completing investigation and obtaining appropriate sanction, charge sheet was filed against the respondent and Viswanadham and charges under Sections 7, 13(2) read with 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) were famed against them. In support of its case the prosecution examined ten witnesses and marked thirty six documents. In defence, the respondent and Viswanadham filed their statements in writing. The respondent stated that he had never demanded and received the bribe from PW1 and that the trap proceedings dated 05.07.1995 were stage managed at the instance of one Hanumantha Rao, a tax consultant. It was submitted that PW1 had clandestinely put currency notes on the papers lying on his table and when PW9 entered the office he directed the respondent to pick up those notes and to give them to one of the officials present with him and that he had accordingly picked up said notes with his left hand. It was submitted that the registration certificate of PW1 was approved by him as early as on 24.06.1995 and that PW1 was asked to collect the registration certificate immediately and that nothing relating to PW1 was pending with him after 24.06.1995. Viswanadham in his written statement stated that on the relevant date PW1 met him and informed that the respondent had sent PW1 with instructions to give Rs.100/- to him and therefore he had accepted the same and kept in the open almirah. Further he had taken the amount as he was under the impression that the respondent had sent the amount for the purposes of buying some provisions or other articles, which he normally used to do for the respondent.

11. We, therefore, set aside the judgment and order passed by the High Court. The appeal is allowed and the judgment of conviction and sentence as recorded by the trial court against the respondent is restored. The respondent shall be taken into custody forthwith to undergo the sentence as awarded.

……………………….J (Pinaki Chandra Ghose) ……………………….J (Uday Umesh Lalit) New Delhi, May 06, 2015 ITEM NO.1B COURT NO.11 SECTION II (for Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 89/2009 STATE OF ANDHRA PRADESH Appellant(s) VERSUS KESAVAPATNAM CHINA SWAMY Respondent(s) Date : 06/05/2015 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Guntur Pramod Kumar, Adv.

Mr. Guntur Prabhakar, Adv.

Mr. D. Mahesh Babu, Adv.

For Respondent(s) Ms. T. Anamika, Adv.

Hon'ble Mr. Justice Uday Umesh Lalit pronounced the non-reportable judgment of the Bench comprising Hon'ble Mr. Justice Pinaki Chandra Ghose and His Lordship.

The appeal is allowed and the judgment of conviction and sentence as recorded by the trial court against the respondent is restored. The respondent shall be taken into custody forthwith to undergo the sentence as awarded in terms of the signed non-reportable judgment.

(Signed non-reportable judgment is placed on the file)