Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (for short "P.C. Act") -non examination of Sanction authority was not fatal to prosecution but the person who is acquainted with the signature of Sanction Authority is enough = S.Kumara Swamy..... Appellant State of Andhra Pradesh,Rep. by the Special Public ProsecutorFor A.C.B cases, High Court of A.P, Hyderabad.... Respondent = Published in judis.nic.in/judis_andhra/filename=10483
Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption
Act, 1988 (for short "P.C. Act") -non examination of Sanction authority was not fatal to prosecution but the person who is acquainted with the signature of Sanction Authority is enough =
prosecution did not examine the authority who issued the sanction proceedings to
establish that he issued sanction on proper application of mind. In the
sanction order the material that was placed before Sanctioning Authority for
perusal is not mentioned. Hence the sanction issued is not a valid one.
The contention that the sanction order is invalid for non-examination of
the sanctioning authority cannot be accepted in view of the decision reported in
The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad vs. P. Subhash
Chandra Reddy2
wherein it was held that the examination of sanctioning authority
is not necessary, but the examination of an officer who is acquainted with the
signature of the sanctioning authority is sufficient to prove the sanction. =
In
the instant case, the evidence of PW.7 fits into the slot since he worked under
K. K. Bangar and processed the file.
Then the contention that particulars of
the material perused by the sanctioning authority are not disclosed in Ex.P.10
is concerned, the same has no much force.
As observed by the trial Court, the
sanctioning authority has vividly mentioned about the particulars of the case
such as the facts touching the first demand dated 27.06.2000, main trap events,
facts constituting distinct offences committed by the A.O, exercising power
under Section 19 of P.C. Act and according sanction etc., It must be said that
Ex.P.10 spells out that it was issued on proper application of mind. Mere non-
mentioning of the documents referred is not a consequence at all. Hence
contention of the appellant in this regard cannot be upheld.
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.62 of 2006
dated:05.11.2013
S.Kumara Swamy..... Appellant
State of Andhra Pradesh,Rep. by the Special Public ProsecutorFor A.C.B cases,
High Court of A.P, Hyderabad.... Respondent
Counsel for Appellant: Sri J. Parthasarathy
Counsel for Respondent :Sri R. Ramachandra Reddy,
Special Public Prosecutor and
Standing Counsel for A.C.B.
<Gist:
>Head Note:
?Cases referred:
1. 2001 (1) ALD Criminal 407 (SC)
2. AIR 2003 Cri.L.J. 4776
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.62 of 2006
JUDGMENT:
In this criminal appeal, the appellant assails the judgment dated
03.01.2006 passed by learned Special Judge for SPE and ACB cases, City Civil
Court, Hyderabad whereunder learned Judge convicted the A.O for the offences
under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption
Act, 1988 (for short "P.C. Act") and sentenced him to undergo Rigorous
Imprisonment for one year and pay fine of Rs.1,000/- for the offence under
Section 7 of P.C. Act and Rigorous Imprisonment for two years and pay fine of
Rs.2,000/- for the offence under Section 13(2) read with Section 13(1)(d) of
P.C. Act.
2. The factual matrix of the case which led to file the present appeal by the
appellant/A.O is thus:
a) Prosecution case is that PW.4 and PW.6 who are paternal uncle and mother of
PW.1 - the de facto complainant owned Ac.3-35gts and Ac.2-28gts respectively
totalling Ac.6-28gts in different survey numbers in Dharmasagar village in
Warangal District. They proposed to sell their lands to S.C Corporation
Warangal and made an application to that effect to M.R.O Dharmasagar who
directed the Surveyor to survey the lands. The-then Surveyor D.Satyanarayana
partly surveyed them during November, 1999. Later, he was transferred to Mulugu
Mandal. In the month of December, 1999, the appellant/A.O joined as Surveyor in
Dharmasagar M.R.O's office. PW.1 met the A.O and requested him to complete the
survey which was partly done by his predecessor. The A.O told him that he has
to conduct the survey from beginning and it would take sometime. Later, when
PW.1 again approached him, A.O used to postpone survey on one or other pretext.
Finally, when PW.1 met the A.O at his house on 27.06.2000 and requested him to
conduct the survey of their lands, A.O demanded Rs.1,000/- as bribe and
instructed PW.1 to be present at M.R.O's office Dharmasagar on 29.06.2000
(Thursday) and make two coolie persons available to assist him and also meet the
other incidental expenditure. When PW.1 expressed his inability to pay such
huge amount as bribe, the A.O reduced the bribe amount from Rs.1,000/- to
Rs.500/-.
b) Unwilling to pay bribe to A.O, PW.1 lodged Ex.P-1 written complaint with
PW.8 - the D.S.P, A.C.B Warangal, who after observing due formalities registered
a case in Crime No.9/ACB/Warangal on 29.06.2000 and laid a successful trap on
A.O with the aid of mediators i.e., PW.2, LW.3 and some other staff after
observing the due pre trap formalities. Subsequently, PW.9 - Inspector of
Police, A.C.B conducted investigation and on completion of the same laid charge
sheet against the A.O for the offences punishable under Section 7 and 13(2) r/w
S.13(1)(d) of P.C. Act.
c) On appearance of A.O, the trial Court framed charges under Section 7 and
13(2) r/w S.13 (1) (d) of P.C. Act.
d) During trial, prosecution examined PWs.1 to 9 and exhibited documents Exs.P.1
to P.12 and produced material objects which are M.Os.1 to 7.
e) A.O did not produce any oral or documentary evidence.
f) It may be noted that during evidence PW.1 turned hostile and deposed that A.O
did not ask him any money as bribe and he himself paid the amount and in fact he
kept the money in his pocket without being asked by the A.O. Basing on it, the
A.O argued before trial Court that PW.1's evidence will not prove demand and
acceptance of the bribe by him and on the other hand it proved that the amount
was thrusted in his pocket and therefore, prosecution failed to prove the
charges levelled against him. The judgment of the trial Court would show that
basing on the other evidence available on record, the trial Court held that the
prosecution could establish the demand and acceptance of bribe by the A.O and
the theory of thrusting of the amount in the pocket put forth by A.O is not
believable. Ultimately, the trial Court convicted and sentenced him as stated
supra. Hence the appeal.
3. Heard Sri J.Parthasarathy, learned counsel for appellant and
Sri R. Ramachandra Reddy, learned Special Public Prosecutor and Standing Counsel
for A.C.B.
4. Vehemently attacking the judgment of the trial court, learned counsel for
appellant argued that prosecution in order to succeed in a trap case has to
establish the two main ingredients i.e., demand of illegal gratification other
than legal remuneration by the A.O and acceptance of the same. In the instant
case, he argued, the evidence of PW.1- de facto complainant would show that he
categorically admitted that A.O did not demand him any bribe on the date of trap
and on the other hand he himself paid the amount to A.O as the M.R.O advised him
to somehow get the survey work done. Learned counsel submitted that in the
cross-examination made on behalf of A.O, again he stated that he paid the amount
to the A.O and kept the money in his pocket without his asking. He confirmed
that he did not state to the Inspector that the A.O demanded money and he
himself paid to him. When this is the clinching evidence of PW.1 on the aspect
of demand and payment of bribe, it is crystal clear that the A.O did not demand
the bribe at all. Learned counsel further argued that except the evidence of
PW.1 there are no other direct witnesses who had seen A.O making any demand for
bribe. So omitting PW.1, there is no other direct evidence to connect the A.O
to the offence. In such circumstances, having regard to the evidence on record,
the trial court ought to have held that prosecution failed to prove the charges
levelled against the A.O. However the trial Court in appreciating the evidence
on record tread a wrong path and drew optional presumption under Section 114(a)
of Indian Evidence Act, 1872 (for short "Evidence Act") to the effect that the
A.O demanded and received the gratification from PW.1 and with the aid of said
optional presumption which is impermissible, drew a further statutory
presumption under Section 20 of P.C. Act against the A.O and held that A.O
failed to rebut the presumption that he received the amount as a motive or
reward for doing an official favour. Ultimately, trial Court committed two
grave errors: firstly, drawing optional presumption and a consequent statutory
presumption against A.O despite lacking evidence and secondly, holding that A.O
did not offer spontaneous explanation for the amount received by him though in
fact A.O gave a clear and spontaneous explanation before T.L.O to the effect
that he did not demand any bribe from PW.1 and on the other hand he himself paid
the amount.
a) Nextly, attacking Ex.P.10- sanction order, learned counsel argued that
prosecution did not examine the authority who issued the sanction proceedings to
establish that he issued sanction on proper application of mind. In the
sanction order the material that was placed before Sanctioning Authority for
perusal is not mentioned. Hence the sanction issued is not a valid one. He
thus prayed for setting aside the conviction and sentence passed by trial Court
by allowing the appeal.
5. Per contra, learned Special Public Prosecutor argued that the trial Court
on proper appreciation of evidence only drew the optional presumption under
Section 114(a) of Evidence Act and statutory presumption under section 20 of
P.C. Act and consequently held that prosecution established the acceptance of
gratification by the A.O and he failed to rebut the presumption under Section 20
of P.C. Act. Expatiating it, he argued that though PW.1- de facto complainant
turned hostile and stated as if the A.O did not demand bribe and he himself paid
the amount to A.O, the trial Court after taking into consideration several pre
and post trap incidents and considering the evidence of PWs.2 and 8 and also
taking into account the conduct of the A.O in not rejecting the amount, has
drawn the optional presumption that he accepted the amount voluntarily but not
that it was thrusted into his pocket by PW.1. Since there was no proper
explanation as to why he received the amount, the trial Court correctly held
that he failed to rebut the presumption under Section 20 of P.C. Act to the
effect that he received the amount as a motive or reward for doing an official
favour and hence there is no point in carping the judgment of the trial Court.
Regarding the sanction proceedings, he argued that the trial Court rightly held
that the sanction was a valid one. He thus prayed for dismissal of appeal.
6. In the light of above divergent arguments, the points that arise for
consideration are:
1) Whether in drawing optional presumption under Section 114(a) of Evidence Act
and statutory presumption under Section 20 of P.C. Act against A.O, the trial
Court properly appreciated the evidence on record?
2) Whether the sanction order was issued on proper application of mind?
3) Whether the judgment of the trial Court is legally sustainable?
7. POINT No.1: Before deciding this point, it is pertinent to discuss whether
any official act was pending to be performed by the A.O towards PW.1 - de facto
complainant. As per the allegations in Ex.P.1- complaint, during relevant
period PWs.4 and 6 who are the paternal uncle and mother of PW.1 respectively
proposed to sell their lands to S.C Corporation, Warangal and for this purpose
they required the survey of their lands. Hence PW.1 approached M.R.O.
Dharmasagar Mandal and requested to cause survey of their lands. On the
instructions of M.R.O, the previous surveyor Satyanarayana partly conducted
survey during November, 1999 and later he was transferred to Mulugu Mandal and
the A.O joined in his place. PW.1 requested him to complete the survey but he
used to postpone the survey on the ground that he need to conduct survey afresh
and that he was busy in conducting surveys in other lands. Further there was
some doubt regarding the actual extent of the lands consented to be sold by
PWs.4 and 6 and so the R.D.O, Warangal in his letter dated 17.01.2000(Page 40 of
Ex.P.6) instructed M.R.O. Dharmasagar to rectify the defects and submit the
proposals at the earliest. On that the M.R.O issued an urgent memo under Ex.P.6
(a) dated 09.02.2000 to A.O directing him to conduct the survey treating the
same as urgent. PW.3 - K. Vasantha Kumari, Deputy Tahsildar in M.R.O's office,
Dharmasagar deposed that she signed on Ex.P.6 (a) memo issued by Tahsildar in
the capacity of Superintendent and the A.O has received the memo and
acknowledged on the copy of memo. Then, the record shows that though memo was
issued on 09.02.2000, the A.O did not conduct survey till the date of complaint.
The trial Court on perusal of the contents of Ex.P.6 (Dharmasagar land purchase
file) and the evidence of PW.3, rightly came to conclusion that an official
favour was pending with A.O during the relevant period.
8. Then coming to the demand and acceptance of bribe, prosecution examined
PWs.1 to 9. PW.1 is the de facto complainant, PW.2 is the mediator for trap
proceedings, and PW.3 was the Deputy Tahsildar in M.R.O's office who signed on
Ex.P.6 (a) memo issued by M.R.O. PW.4 and PW.6 are the paternal uncle and
mother of PW.1 respectively who consented to sell their lands to S.C
Corporation. PW.5 runs small hotel in the premises of M.R.O's office wherein
the trap proceedings took place. PW.7 Section Officer in Revenue Department who
spoke about Ex.P.10 sanction order issued by K.K. Bangar, the then Principal
Secretary. PW.8 is the Trap Laying Officer and PW.9 is the investigating
officer.
9. Of the above, the PW.1- de facto complainant made a volte-face during
trial and deposed that the A.O did not ask for bribe and he himself paid the
amount as advised by M.R.O to get the survey work done. He was declared hostile
and cross examined by learned Special Public Prosecutor. In the cross-
examination also he stated that A.O did not ask for money. In the cross-
examination of the A.O, PW.1 reiterated the same and stated that he paid the
amount to the A.O by keeping the money in his pocket without his asking. In
view of PW.1 not supporting prosecution case on the main aspect of demand of
bribe by the A.O, the trial Court on the submission of learned Special Public
Prosecutor to the effect that though PW.1 resiled, still the prosecution with
the help of the extent of his evidence deposed in favour of prosecution and also
with other evidence available on record could establish its case which may be
considered, has embarked upon that task. The trial Court agreed with the
submission of learned Special Public Prosecutor that the ingredients to draw
presumption under Section 20 of P.C. Act can be established not necessarily
through direct evidence but also through other circumstances and indirect
evidence as held in M. Narsing Rao vs. State of Andhra Pradesh1. The trial Court
by sieving the other part of evidence of PW.1 and matching the same with Ex.P.1-
complaint and the evidence of PWs.2 and 8 and also by taking into consideration
the conduct of the A.O in not refusing amount which was paid by PW.1, has held
that the prosecution established that the A.O demanded and accepted the bribe.
10. This Court perused the judgment of the trial court to know whether its
appreciation of evidence is bereft of logic and principles of Evidence Act.
11. The facts in M. Narsing Rao's case (1 Supra) relied on by the trial Court
are similar to the present case on hand. In that case, the appellant/A.O who
was the Manager of Milk Chilling Centre attached to A.P. Dairy Development
Corporation was alleged to have received bribe of Rs.500/- from milk
transporting contractor (PW.1) during the trap held on 20.04.1989 by the A.C.B
officials. PWs.1 and 2 together went to the house of A.O to pay the bribe
amount. During trial, they made a volte-face and did not support the
prosecution case. PW.1 said he acted as per the behest of one Dr. Krishna Rao.
The defence of appellant/A.O was that the tainted currency notes were forcibly
stuffed into his pocket. The trial Court and High Court did not believe the
plea of A.O and convicted and sentenced the A.O. In the light of those facts
and evidence, a question arose before Hon'ble Supreme Court as to whether in
order to draw a legal presumption under Section 20 of P.C. Act against A.O, a
factual presumption can be taken aid or not. Precisely can a legal presumption
be based on a factual presumption? In order to draw a presumption under Section
20 of P.C. Act the prosecution need to prove that the A.O has accepted or agreed
to accept gratification. If such fact is proved, the Court shall presume,
unless the contrary is proved, that he accepted that gratification or the
valuable thing as the case may be, as a motive or reward for doing an official
favour. Since in that case PWs.1 and 2 did not state that the A.O accepted the
amount and on the other hand it was stuffed into his pocket, there was no direct
evidence to establish the factum of acceptance of gratification by A.O. Hence
it necessitated Hon'ble Supreme Court to consider whether with the other
available evidence on record a factual presumption that the A.O has willingly
received the currency notes can be drawn and whether with that factual
presumption, a further legal presumption under Section 20 of P.C. Act can be
drawn. Hon'ble Supreme Court ultimately held that such a factual presumption
can be drawn to make it a basis for drawing legal presumption under Section 20
of P.C. Act. Hon'ble Supreme Court further held that in that process
illustration (a) of Section 114 of Evidence Act which says that "a man who is in
the possession of stolen goods soon after the theft is either the thief or has
received the goods knowing that to be stolen unless he can account for his
possession" can be profitably used, though that by itself may not or need not
necessarily lead to a presumption that he accepted that amount from somebody
else stuffing those currency notes into his pocket or stealthily inserting the
same therein.
12. Elucidating the above principle, the Hon'ble Supreme Court ultimately held
that the other circumstances which have been proved in that case and those,
preceding and succeeding the searching out of the tainted currency notes are
relevant and useful to help the Court to draw a factual presumption that the A.O
has willingly received the currency notes.
13. The trial Court applied the above principle to the facts and evidence in
the present case and arrived at the following findings:
(i) origin and genesis of the case are concerned, the admitted facts would show
PW.1's mother and uncle consented to sell their lands to S.C corporation,
Warangal and in that context, part survey was conducted by Satyanarayana, the
previous surveyor and on his transfer A.O took charge and M.R.O issued him memo
(Ex.P.6 (a)) to conduct survey and so an official work was pending with him on
the relevant date of trap.
(ii) First demand dated 27.06.2000 is concerned, though PW.1 resiled he admitted
in the cross-examination that he himself gave Ex.P.1-complaint with the true
facts and he avouched its contents before PWs.2 and 8 who too asserted the same.
He also admitted to have attended pre-trap proceedings in the A.C.B office on
29.06.2000 and met the A.O at 10:45am. Further in the cross-examination of A.O,
he stated that he wrote complaint by sitting outside the A.C.B office. All
those assertions would show that on 27.06.2000 A.O made the demand for bribe.
(iii) Further demand of A.O on the date of trap is concerned, the evidence of
PWs.4, 5 and 6 is not helpful. However, PWs.2 and 8 avouched pre and post trap
proceedings i.e., PW.1 giving complaint, PW.8 conducting pre-trap proceedings
and laying trap, PW.1 and A.O together coming out of M.R.O office and going to
the thatched hotel of PW.5 and again coming out at 11:00am and PW.1 giving
prescheduled signal, PW.8 conducting chemical test on both hands of the A.O and
to the inner part of his shirt pocket and they are yielding positive result,
seizure of tainted amount from the A.O etc.. Their evidence on the aforesaid
crucial facts coupled with the conduct of the A.O in not protesting or rejecting
the tainted amount when allegedly stuffed by PW.1, would all cumulatively pave
way for drawing optional presumption under Section 114(a) of Evidence Act that
the A.O has voluntarily accepted the tainted amount. Since prosecution produced
material to draw optional presumption, a consequent legal presumption under
Section 20 of P.C. Act also can be drawn. The defence failed to rebut or dispel
the presumption since its stand of thrusting of money is not convincing (Para 22
of the judgment).
14. This Court carefully scanned the evidence of PWs.1, 2 and 8 to check
whether their evidence will allow to arrive above findings of trial Court. It
must be said that the trial Court arrived at those findings basing on the
evidence and circumstances. PW.1 though resiled, admitted that he himself has
given the Ex.P.1- complaint wherein he made an unequivocal allegation that the
A.O demanded bribe for conducting survey. He admitted that he himself attended
the pre-trap proceedings in the A.C.B office and nobody forced him. He further
admitted that he along with trap party went to M.R.O's office and there he and
A.O went to the thatched hotel of PW.5. It must be noted that though PW.5
turned hostile and did not speak about holding of post-trap proceedings in her
hotel, still she stated that A.O and PW.1 came to her hotel before trap. These
facts are unerringly avouched by PWs.2 and 8 also. Apart from their evidence,
Ex.P.4- first mediator report and Ex.P.5- second mediator report which though
not serve as substantial piece of evidence, still help to corroborate the
evidence of PWs.2 and 8. Above all, the conduct of the A.O immediately after
the trap which was noted in Ex.P.5 post trap proceedings in the form of his
spontaneous explanation is also relevant under Section 8 of Evidence Act. His
own explanation would show that when the amount was given by PW.1, the A.O took
the amount and counted the same and kept in his left side pocket of the shirt.
It may be noted that though he gave an explanation to the effect that he did not
demand the amount and on the other hand PW.1 himself paid the amount but his
immediate reaction on tendering of the amount by PW.1 stultify his defence plea.
The A.O did neither resist PW.1 from giving the amount nor throw it away. On the
other hand, he took the amount and counted the same and kept in his left side
pocket of the shirt. This conduct on his part coupled with the aforesaid
evidence of PWs.1, 2 and 8 cumulatively show that upon demand only he accepted
the amount. Therefore, the trial Court has rightly drawn factual presumption
under Section 114(a) of Evidence Act and later the legal presumption under
Section 20 of P.C. Act. Hence, the arguments of learned counsel for appellant
that the trial Court erred in appreciating the evidence cannot be countenanced.
15. POINT No.2: Ex.P.10 is the sanction order issued on behalf of Government of
Andhra Pradesh by Sri K.K. Bangar, Principal Secretary to Government under
Section 19 of P.C. Act to prosecute the A.O. The PW.7, the-then Section Officer
in Revenue Department (Vigilance) who worked under the said K.K. Bangar and
processed the file relating to G.O.Ms.No.624 dated 21.09.2001 under which
sanction order was issued was examined in the Court. He deposed that the
department received F.I.R, pre and post trap proceedings and final report from
the D.G, A.C.B., basing on which file was prepared and placed before K. K.
Bangar and accordingly, he issued sanction order under Ex.P.10. He identified
the signature of K. K. Bangar on Ex.P.10. In the cross-examination it was
elicited that the details of the material which he deposed to have been perused
by the sanctioning authority were not mentioned in Ex.P.10. It was also
suggested to him that he did not place any material before the sanctioning
authority for perusal and that Ex.P.1 was issued without application of mind and
the same was denied by him.
16. Now the contention on behalf of the appellant/A.O is that the prosecution
failed to examine the officer who issued the sanction to know
whether he made a
proper application of mind before issuing the sanction. Similarly, Ex.P.10 is
silent as to what material was placed before the sanctioning authority for
perusal to arrive at the conclusion and hence it must be held that prosecution
failed to establish that Ex.P.10 is a product of proper application of mind. It
may be noted that similar contention was raised before the trial Court and the
same was negatived by it.
17. The contention that the sanction order is invalid for non-examination of
the sanctioning authority cannot be accepted in view of the decision reported in
The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad vs. P. Subhash
Chandra Reddy2
wherein it was held that the examination of sanctioning authority
is not necessary, but the examination of an officer who is acquainted with the
signature of the sanctioning authority is sufficient to prove the sanction.
In
the instant case, the evidence of PW.7 fits into the slot since he worked under
K. K. Bangar and processed the file.
Then the contention that particulars of
the material perused by the sanctioning authority are not disclosed in Ex.P.10
is concerned, the same has no much force.
As observed by the trial Court, the
sanctioning authority has vividly mentioned about the particulars of the case
such as the facts touching the first demand dated 27.06.2000, main trap events,
facts constituting distinct offences committed by the A.O, exercising power
under Section 19 of P.C. Act and according sanction etc., It must be said that
Ex.P.10 spells out that it was issued on proper application of mind. Mere non-
mentioning of the documents referred is not a consequence at all. Hence
contention of the appellant in this regard cannot be upheld.
18. POINT No.3: In view of the discussion in points supra, the judgment of the
trial Court is held to be legally sustainable.
Accordingly, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court.
__________________________
U. DURGA PRASAD RAO, J
Date: 05.11.2013.
Act, 1988 (for short "P.C. Act") -non examination of Sanction authority was not fatal to prosecution but the person who is acquainted with the signature of Sanction Authority is enough =
prosecution did not examine the authority who issued the sanction proceedings to
establish that he issued sanction on proper application of mind. In the
sanction order the material that was placed before Sanctioning Authority for
perusal is not mentioned. Hence the sanction issued is not a valid one.
The contention that the sanction order is invalid for non-examination of
the sanctioning authority cannot be accepted in view of the decision reported in
The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad vs. P. Subhash
Chandra Reddy2
wherein it was held that the examination of sanctioning authority
is not necessary, but the examination of an officer who is acquainted with the
signature of the sanctioning authority is sufficient to prove the sanction. =
In
the instant case, the evidence of PW.7 fits into the slot since he worked under
K. K. Bangar and processed the file.
Then the contention that particulars of
the material perused by the sanctioning authority are not disclosed in Ex.P.10
is concerned, the same has no much force.
As observed by the trial Court, the
sanctioning authority has vividly mentioned about the particulars of the case
such as the facts touching the first demand dated 27.06.2000, main trap events,
facts constituting distinct offences committed by the A.O, exercising power
under Section 19 of P.C. Act and according sanction etc., It must be said that
Ex.P.10 spells out that it was issued on proper application of mind. Mere non-
mentioning of the documents referred is not a consequence at all. Hence
contention of the appellant in this regard cannot be upheld.
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.62 of 2006
dated:05.11.2013
S.Kumara Swamy..... Appellant
State of Andhra Pradesh,Rep. by the Special Public ProsecutorFor A.C.B cases,
High Court of A.P, Hyderabad.... Respondent
Counsel for Appellant: Sri J. Parthasarathy
Counsel for Respondent :Sri R. Ramachandra Reddy,
Special Public Prosecutor and
Standing Counsel for A.C.B.
<Gist:
>Head Note:
?Cases referred:
1. 2001 (1) ALD Criminal 407 (SC)
2. AIR 2003 Cri.L.J. 4776
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.62 of 2006
JUDGMENT:
In this criminal appeal, the appellant assails the judgment dated
03.01.2006 passed by learned Special Judge for SPE and ACB cases, City Civil
Court, Hyderabad whereunder learned Judge convicted the A.O for the offences
under Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption
Act, 1988 (for short "P.C. Act") and sentenced him to undergo Rigorous
Imprisonment for one year and pay fine of Rs.1,000/- for the offence under
Section 7 of P.C. Act and Rigorous Imprisonment for two years and pay fine of
Rs.2,000/- for the offence under Section 13(2) read with Section 13(1)(d) of
P.C. Act.
2. The factual matrix of the case which led to file the present appeal by the
appellant/A.O is thus:
a) Prosecution case is that PW.4 and PW.6 who are paternal uncle and mother of
PW.1 - the de facto complainant owned Ac.3-35gts and Ac.2-28gts respectively
totalling Ac.6-28gts in different survey numbers in Dharmasagar village in
Warangal District. They proposed to sell their lands to S.C Corporation
Warangal and made an application to that effect to M.R.O Dharmasagar who
directed the Surveyor to survey the lands. The-then Surveyor D.Satyanarayana
partly surveyed them during November, 1999. Later, he was transferred to Mulugu
Mandal. In the month of December, 1999, the appellant/A.O joined as Surveyor in
Dharmasagar M.R.O's office. PW.1 met the A.O and requested him to complete the
survey which was partly done by his predecessor. The A.O told him that he has
to conduct the survey from beginning and it would take sometime. Later, when
PW.1 again approached him, A.O used to postpone survey on one or other pretext.
Finally, when PW.1 met the A.O at his house on 27.06.2000 and requested him to
conduct the survey of their lands, A.O demanded Rs.1,000/- as bribe and
instructed PW.1 to be present at M.R.O's office Dharmasagar on 29.06.2000
(Thursday) and make two coolie persons available to assist him and also meet the
other incidental expenditure. When PW.1 expressed his inability to pay such
huge amount as bribe, the A.O reduced the bribe amount from Rs.1,000/- to
Rs.500/-.
b) Unwilling to pay bribe to A.O, PW.1 lodged Ex.P-1 written complaint with
PW.8 - the D.S.P, A.C.B Warangal, who after observing due formalities registered
a case in Crime No.9/ACB/Warangal on 29.06.2000 and laid a successful trap on
A.O with the aid of mediators i.e., PW.2, LW.3 and some other staff after
observing the due pre trap formalities. Subsequently, PW.9 - Inspector of
Police, A.C.B conducted investigation and on completion of the same laid charge
sheet against the A.O for the offences punishable under Section 7 and 13(2) r/w
S.13(1)(d) of P.C. Act.
c) On appearance of A.O, the trial Court framed charges under Section 7 and
13(2) r/w S.13 (1) (d) of P.C. Act.
d) During trial, prosecution examined PWs.1 to 9 and exhibited documents Exs.P.1
to P.12 and produced material objects which are M.Os.1 to 7.
e) A.O did not produce any oral or documentary evidence.
f) It may be noted that during evidence PW.1 turned hostile and deposed that A.O
did not ask him any money as bribe and he himself paid the amount and in fact he
kept the money in his pocket without being asked by the A.O. Basing on it, the
A.O argued before trial Court that PW.1's evidence will not prove demand and
acceptance of the bribe by him and on the other hand it proved that the amount
was thrusted in his pocket and therefore, prosecution failed to prove the
charges levelled against him. The judgment of the trial Court would show that
basing on the other evidence available on record, the trial Court held that the
prosecution could establish the demand and acceptance of bribe by the A.O and
the theory of thrusting of the amount in the pocket put forth by A.O is not
believable. Ultimately, the trial Court convicted and sentenced him as stated
supra. Hence the appeal.
3. Heard Sri J.Parthasarathy, learned counsel for appellant and
Sri R. Ramachandra Reddy, learned Special Public Prosecutor and Standing Counsel
for A.C.B.
4. Vehemently attacking the judgment of the trial court, learned counsel for
appellant argued that prosecution in order to succeed in a trap case has to
establish the two main ingredients i.e., demand of illegal gratification other
than legal remuneration by the A.O and acceptance of the same. In the instant
case, he argued, the evidence of PW.1- de facto complainant would show that he
categorically admitted that A.O did not demand him any bribe on the date of trap
and on the other hand he himself paid the amount to A.O as the M.R.O advised him
to somehow get the survey work done. Learned counsel submitted that in the
cross-examination made on behalf of A.O, again he stated that he paid the amount
to the A.O and kept the money in his pocket without his asking. He confirmed
that he did not state to the Inspector that the A.O demanded money and he
himself paid to him. When this is the clinching evidence of PW.1 on the aspect
of demand and payment of bribe, it is crystal clear that the A.O did not demand
the bribe at all. Learned counsel further argued that except the evidence of
PW.1 there are no other direct witnesses who had seen A.O making any demand for
bribe. So omitting PW.1, there is no other direct evidence to connect the A.O
to the offence. In such circumstances, having regard to the evidence on record,
the trial court ought to have held that prosecution failed to prove the charges
levelled against the A.O. However the trial Court in appreciating the evidence
on record tread a wrong path and drew optional presumption under Section 114(a)
of Indian Evidence Act, 1872 (for short "Evidence Act") to the effect that the
A.O demanded and received the gratification from PW.1 and with the aid of said
optional presumption which is impermissible, drew a further statutory
presumption under Section 20 of P.C. Act against the A.O and held that A.O
failed to rebut the presumption that he received the amount as a motive or
reward for doing an official favour. Ultimately, trial Court committed two
grave errors: firstly, drawing optional presumption and a consequent statutory
presumption against A.O despite lacking evidence and secondly, holding that A.O
did not offer spontaneous explanation for the amount received by him though in
fact A.O gave a clear and spontaneous explanation before T.L.O to the effect
that he did not demand any bribe from PW.1 and on the other hand he himself paid
the amount.
a) Nextly, attacking Ex.P.10- sanction order, learned counsel argued that
prosecution did not examine the authority who issued the sanction proceedings to
establish that he issued sanction on proper application of mind. In the
sanction order the material that was placed before Sanctioning Authority for
perusal is not mentioned. Hence the sanction issued is not a valid one. He
thus prayed for setting aside the conviction and sentence passed by trial Court
by allowing the appeal.
5. Per contra, learned Special Public Prosecutor argued that the trial Court
on proper appreciation of evidence only drew the optional presumption under
Section 114(a) of Evidence Act and statutory presumption under section 20 of
P.C. Act and consequently held that prosecution established the acceptance of
gratification by the A.O and he failed to rebut the presumption under Section 20
of P.C. Act. Expatiating it, he argued that though PW.1- de facto complainant
turned hostile and stated as if the A.O did not demand bribe and he himself paid
the amount to A.O, the trial Court after taking into consideration several pre
and post trap incidents and considering the evidence of PWs.2 and 8 and also
taking into account the conduct of the A.O in not rejecting the amount, has
drawn the optional presumption that he accepted the amount voluntarily but not
that it was thrusted into his pocket by PW.1. Since there was no proper
explanation as to why he received the amount, the trial Court correctly held
that he failed to rebut the presumption under Section 20 of P.C. Act to the
effect that he received the amount as a motive or reward for doing an official
favour and hence there is no point in carping the judgment of the trial Court.
Regarding the sanction proceedings, he argued that the trial Court rightly held
that the sanction was a valid one. He thus prayed for dismissal of appeal.
6. In the light of above divergent arguments, the points that arise for
consideration are:
1) Whether in drawing optional presumption under Section 114(a) of Evidence Act
and statutory presumption under Section 20 of P.C. Act against A.O, the trial
Court properly appreciated the evidence on record?
2) Whether the sanction order was issued on proper application of mind?
3) Whether the judgment of the trial Court is legally sustainable?
7. POINT No.1: Before deciding this point, it is pertinent to discuss whether
any official act was pending to be performed by the A.O towards PW.1 - de facto
complainant. As per the allegations in Ex.P.1- complaint, during relevant
period PWs.4 and 6 who are the paternal uncle and mother of PW.1 respectively
proposed to sell their lands to S.C Corporation, Warangal and for this purpose
they required the survey of their lands. Hence PW.1 approached M.R.O.
Dharmasagar Mandal and requested to cause survey of their lands. On the
instructions of M.R.O, the previous surveyor Satyanarayana partly conducted
survey during November, 1999 and later he was transferred to Mulugu Mandal and
the A.O joined in his place. PW.1 requested him to complete the survey but he
used to postpone the survey on the ground that he need to conduct survey afresh
and that he was busy in conducting surveys in other lands. Further there was
some doubt regarding the actual extent of the lands consented to be sold by
PWs.4 and 6 and so the R.D.O, Warangal in his letter dated 17.01.2000(Page 40 of
Ex.P.6) instructed M.R.O. Dharmasagar to rectify the defects and submit the
proposals at the earliest. On that the M.R.O issued an urgent memo under Ex.P.6
(a) dated 09.02.2000 to A.O directing him to conduct the survey treating the
same as urgent. PW.3 - K. Vasantha Kumari, Deputy Tahsildar in M.R.O's office,
Dharmasagar deposed that she signed on Ex.P.6 (a) memo issued by Tahsildar in
the capacity of Superintendent and the A.O has received the memo and
acknowledged on the copy of memo. Then, the record shows that though memo was
issued on 09.02.2000, the A.O did not conduct survey till the date of complaint.
The trial Court on perusal of the contents of Ex.P.6 (Dharmasagar land purchase
file) and the evidence of PW.3, rightly came to conclusion that an official
favour was pending with A.O during the relevant period.
8. Then coming to the demand and acceptance of bribe, prosecution examined
PWs.1 to 9. PW.1 is the de facto complainant, PW.2 is the mediator for trap
proceedings, and PW.3 was the Deputy Tahsildar in M.R.O's office who signed on
Ex.P.6 (a) memo issued by M.R.O. PW.4 and PW.6 are the paternal uncle and
mother of PW.1 respectively who consented to sell their lands to S.C
Corporation. PW.5 runs small hotel in the premises of M.R.O's office wherein
the trap proceedings took place. PW.7 Section Officer in Revenue Department who
spoke about Ex.P.10 sanction order issued by K.K. Bangar, the then Principal
Secretary. PW.8 is the Trap Laying Officer and PW.9 is the investigating
officer.
9. Of the above, the PW.1- de facto complainant made a volte-face during
trial and deposed that the A.O did not ask for bribe and he himself paid the
amount as advised by M.R.O to get the survey work done. He was declared hostile
and cross examined by learned Special Public Prosecutor. In the cross-
examination also he stated that A.O did not ask for money. In the cross-
examination of the A.O, PW.1 reiterated the same and stated that he paid the
amount to the A.O by keeping the money in his pocket without his asking. In
view of PW.1 not supporting prosecution case on the main aspect of demand of
bribe by the A.O, the trial Court on the submission of learned Special Public
Prosecutor to the effect that though PW.1 resiled, still the prosecution with
the help of the extent of his evidence deposed in favour of prosecution and also
with other evidence available on record could establish its case which may be
considered, has embarked upon that task. The trial Court agreed with the
submission of learned Special Public Prosecutor that the ingredients to draw
presumption under Section 20 of P.C. Act can be established not necessarily
through direct evidence but also through other circumstances and indirect
evidence as held in M. Narsing Rao vs. State of Andhra Pradesh1. The trial Court
by sieving the other part of evidence of PW.1 and matching the same with Ex.P.1-
complaint and the evidence of PWs.2 and 8 and also by taking into consideration
the conduct of the A.O in not refusing amount which was paid by PW.1, has held
that the prosecution established that the A.O demanded and accepted the bribe.
10. This Court perused the judgment of the trial court to know whether its
appreciation of evidence is bereft of logic and principles of Evidence Act.
11. The facts in M. Narsing Rao's case (1 Supra) relied on by the trial Court
are similar to the present case on hand. In that case, the appellant/A.O who
was the Manager of Milk Chilling Centre attached to A.P. Dairy Development
Corporation was alleged to have received bribe of Rs.500/- from milk
transporting contractor (PW.1) during the trap held on 20.04.1989 by the A.C.B
officials. PWs.1 and 2 together went to the house of A.O to pay the bribe
amount. During trial, they made a volte-face and did not support the
prosecution case. PW.1 said he acted as per the behest of one Dr. Krishna Rao.
The defence of appellant/A.O was that the tainted currency notes were forcibly
stuffed into his pocket. The trial Court and High Court did not believe the
plea of A.O and convicted and sentenced the A.O. In the light of those facts
and evidence, a question arose before Hon'ble Supreme Court as to whether in
order to draw a legal presumption under Section 20 of P.C. Act against A.O, a
factual presumption can be taken aid or not. Precisely can a legal presumption
be based on a factual presumption? In order to draw a presumption under Section
20 of P.C. Act the prosecution need to prove that the A.O has accepted or agreed
to accept gratification. If such fact is proved, the Court shall presume,
unless the contrary is proved, that he accepted that gratification or the
valuable thing as the case may be, as a motive or reward for doing an official
favour. Since in that case PWs.1 and 2 did not state that the A.O accepted the
amount and on the other hand it was stuffed into his pocket, there was no direct
evidence to establish the factum of acceptance of gratification by A.O. Hence
it necessitated Hon'ble Supreme Court to consider whether with the other
available evidence on record a factual presumption that the A.O has willingly
received the currency notes can be drawn and whether with that factual
presumption, a further legal presumption under Section 20 of P.C. Act can be
drawn. Hon'ble Supreme Court ultimately held that such a factual presumption
can be drawn to make it a basis for drawing legal presumption under Section 20
of P.C. Act. Hon'ble Supreme Court further held that in that process
illustration (a) of Section 114 of Evidence Act which says that "a man who is in
the possession of stolen goods soon after the theft is either the thief or has
received the goods knowing that to be stolen unless he can account for his
possession" can be profitably used, though that by itself may not or need not
necessarily lead to a presumption that he accepted that amount from somebody
else stuffing those currency notes into his pocket or stealthily inserting the
same therein.
12. Elucidating the above principle, the Hon'ble Supreme Court ultimately held
that the other circumstances which have been proved in that case and those,
preceding and succeeding the searching out of the tainted currency notes are
relevant and useful to help the Court to draw a factual presumption that the A.O
has willingly received the currency notes.
13. The trial Court applied the above principle to the facts and evidence in
the present case and arrived at the following findings:
(i) origin and genesis of the case are concerned, the admitted facts would show
PW.1's mother and uncle consented to sell their lands to S.C corporation,
Warangal and in that context, part survey was conducted by Satyanarayana, the
previous surveyor and on his transfer A.O took charge and M.R.O issued him memo
(Ex.P.6 (a)) to conduct survey and so an official work was pending with him on
the relevant date of trap.
(ii) First demand dated 27.06.2000 is concerned, though PW.1 resiled he admitted
in the cross-examination that he himself gave Ex.P.1-complaint with the true
facts and he avouched its contents before PWs.2 and 8 who too asserted the same.
He also admitted to have attended pre-trap proceedings in the A.C.B office on
29.06.2000 and met the A.O at 10:45am. Further in the cross-examination of A.O,
he stated that he wrote complaint by sitting outside the A.C.B office. All
those assertions would show that on 27.06.2000 A.O made the demand for bribe.
(iii) Further demand of A.O on the date of trap is concerned, the evidence of
PWs.4, 5 and 6 is not helpful. However, PWs.2 and 8 avouched pre and post trap
proceedings i.e., PW.1 giving complaint, PW.8 conducting pre-trap proceedings
and laying trap, PW.1 and A.O together coming out of M.R.O office and going to
the thatched hotel of PW.5 and again coming out at 11:00am and PW.1 giving
prescheduled signal, PW.8 conducting chemical test on both hands of the A.O and
to the inner part of his shirt pocket and they are yielding positive result,
seizure of tainted amount from the A.O etc.. Their evidence on the aforesaid
crucial facts coupled with the conduct of the A.O in not protesting or rejecting
the tainted amount when allegedly stuffed by PW.1, would all cumulatively pave
way for drawing optional presumption under Section 114(a) of Evidence Act that
the A.O has voluntarily accepted the tainted amount. Since prosecution produced
material to draw optional presumption, a consequent legal presumption under
Section 20 of P.C. Act also can be drawn. The defence failed to rebut or dispel
the presumption since its stand of thrusting of money is not convincing (Para 22
of the judgment).
14. This Court carefully scanned the evidence of PWs.1, 2 and 8 to check
whether their evidence will allow to arrive above findings of trial Court. It
must be said that the trial Court arrived at those findings basing on the
evidence and circumstances. PW.1 though resiled, admitted that he himself has
given the Ex.P.1- complaint wherein he made an unequivocal allegation that the
A.O demanded bribe for conducting survey. He admitted that he himself attended
the pre-trap proceedings in the A.C.B office and nobody forced him. He further
admitted that he along with trap party went to M.R.O's office and there he and
A.O went to the thatched hotel of PW.5. It must be noted that though PW.5
turned hostile and did not speak about holding of post-trap proceedings in her
hotel, still she stated that A.O and PW.1 came to her hotel before trap. These
facts are unerringly avouched by PWs.2 and 8 also. Apart from their evidence,
Ex.P.4- first mediator report and Ex.P.5- second mediator report which though
not serve as substantial piece of evidence, still help to corroborate the
evidence of PWs.2 and 8. Above all, the conduct of the A.O immediately after
the trap which was noted in Ex.P.5 post trap proceedings in the form of his
spontaneous explanation is also relevant under Section 8 of Evidence Act. His
own explanation would show that when the amount was given by PW.1, the A.O took
the amount and counted the same and kept in his left side pocket of the shirt.
It may be noted that though he gave an explanation to the effect that he did not
demand the amount and on the other hand PW.1 himself paid the amount but his
immediate reaction on tendering of the amount by PW.1 stultify his defence plea.
The A.O did neither resist PW.1 from giving the amount nor throw it away. On the
other hand, he took the amount and counted the same and kept in his left side
pocket of the shirt. This conduct on his part coupled with the aforesaid
evidence of PWs.1, 2 and 8 cumulatively show that upon demand only he accepted
the amount. Therefore, the trial Court has rightly drawn factual presumption
under Section 114(a) of Evidence Act and later the legal presumption under
Section 20 of P.C. Act. Hence, the arguments of learned counsel for appellant
that the trial Court erred in appreciating the evidence cannot be countenanced.
15. POINT No.2: Ex.P.10 is the sanction order issued on behalf of Government of
Andhra Pradesh by Sri K.K. Bangar, Principal Secretary to Government under
Section 19 of P.C. Act to prosecute the A.O. The PW.7, the-then Section Officer
in Revenue Department (Vigilance) who worked under the said K.K. Bangar and
processed the file relating to G.O.Ms.No.624 dated 21.09.2001 under which
sanction order was issued was examined in the Court. He deposed that the
department received F.I.R, pre and post trap proceedings and final report from
the D.G, A.C.B., basing on which file was prepared and placed before K. K.
Bangar and accordingly, he issued sanction order under Ex.P.10. He identified
the signature of K. K. Bangar on Ex.P.10. In the cross-examination it was
elicited that the details of the material which he deposed to have been perused
by the sanctioning authority were not mentioned in Ex.P.10. It was also
suggested to him that he did not place any material before the sanctioning
authority for perusal and that Ex.P.1 was issued without application of mind and
the same was denied by him.
16. Now the contention on behalf of the appellant/A.O is that the prosecution
failed to examine the officer who issued the sanction to know
whether he made a
proper application of mind before issuing the sanction. Similarly, Ex.P.10 is
silent as to what material was placed before the sanctioning authority for
perusal to arrive at the conclusion and hence it must be held that prosecution
failed to establish that Ex.P.10 is a product of proper application of mind. It
may be noted that similar contention was raised before the trial Court and the
same was negatived by it.
17. The contention that the sanction order is invalid for non-examination of
the sanctioning authority cannot be accepted in view of the decision reported in
The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad vs. P. Subhash
Chandra Reddy2
wherein it was held that the examination of sanctioning authority
is not necessary, but the examination of an officer who is acquainted with the
signature of the sanctioning authority is sufficient to prove the sanction.
In
the instant case, the evidence of PW.7 fits into the slot since he worked under
K. K. Bangar and processed the file.
Then the contention that particulars of
the material perused by the sanctioning authority are not disclosed in Ex.P.10
is concerned, the same has no much force.
As observed by the trial Court, the
sanctioning authority has vividly mentioned about the particulars of the case
such as the facts touching the first demand dated 27.06.2000, main trap events,
facts constituting distinct offences committed by the A.O, exercising power
under Section 19 of P.C. Act and according sanction etc., It must be said that
Ex.P.10 spells out that it was issued on proper application of mind. Mere non-
mentioning of the documents referred is not a consequence at all. Hence
contention of the appellant in this regard cannot be upheld.
18. POINT No.3: In view of the discussion in points supra, the judgment of the
trial Court is held to be legally sustainable.
Accordingly, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court.
__________________________
U. DURGA PRASAD RAO, J
Date: 05.11.2013.
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