Tax Bill Collectors falsely implicated in ACB case - trial court failed to consider the defence plea with out justifiable reasons - pending trail complainant died - Trial court convicted the accused - their lordships of High court held that the trial court wrongly rejected the plea of defence on point that PW 1 not received demand notice but failed to consider that original complainant received the Demand Notice which bares his signature too - on second ground that the accused are not competent to collect tax - which was not raised in trail , can not be raised later - and further more PW1 himself admitted that they used to come and collect the tax at Lodge - Hence the High court set aside the order and acquitted the accused = Sri Gundappa. ... Appellant/ A.1 The State, Rep. by Spl.S.C for ACB, Hyderabad. . Respondent = 2014 - July . Part - http://judis.nic.in/judis_andhra/filename=11574
Tax Bill Collectors falsely implicated in ACB case - trial court failed to consider the defence plea with out justifiable reasons - pending trail complainant died - Trial court convicted the accused - their lordships of High court held that the trial court wrongly rejected the plea of defence on point that PW 1 not received demand notice but failed to consider that original complainant received the Demand Notice which bares his signature too - on second ground that the accused are not competent to collect tax - which was not raised in trail , can not be raised later - and further more PW1 himself admitted that they used to come and collect the tax at Lodge - Hence the High court set aside the order and acquitted the accused =
The plea of accused is that on the date of trap the complainant asked AO1 to
bring the Bill Collector so that he will pay the arrears of the tax amount and
accordingly, AO1 went and brought AO2 to Meenakshi Lodge and they
received the amount.
The trial Court rejected the defence pleas firstly on the
ground that PW.1 stated that he has not received any demand notice from
Municipal Commissioner.
It must be said that this observation is wrong.
The demand notice might not have been served on PW.1 personally during
his presence in the lodge but it might have been served on the complainant.
It must not be forgotten that Ex.D.1 contains the signature of the
complainant.
The argument of learned Spl.S.C in the appeal also cannot be
accepted.
Merely because accused did not produce the Ex.D.1 during
investigation, its genuineness cannot be doubted particularly when DW.1
the Municipal Commissioner avouched its genuinity.
The second ground on
which the trial Court rejected the defence plea was that the accused could
not establish that they were competent to receive the tax and further, they
were competent to receive part-payment of the tax.
This objection also is
quite untenable for the reason that the prosecution neither during the
evidence of PW.4the Chairperson of Nalgonda Municipality nor during
the evidence of DW.1the Commissioner, has posed a question to them
regarding the aforesaid competency of AOs.
Both PW.4 and DW.1 are the
competent persons to speak about this aspect.
When prosecution did not
raise such a question, it cannot later contend that the accused were
incompetent either to collect the tax or to collect it installment wise.
Competency is concerned, PW.1 in his cross-examination clearly stated that
the municipal bill collector used to come to the lodge and collect the tax and
issue the receipts. So the competency of AO2 need not be doubted.
When
the doubts raised by the trial Court are shelved, the defence theory would
appear to be probable.
Further, most importantly, the accused offered a
spontaneous explanation to the TLO regarding the purpose of their receiving
the amount from the de facto complainant.
Added to it, AO1s bringing
along with him AO2 to the lodge gives strength to the defence plea that they
came to receive the tax on the representation of the de facto complainant.
It
was argued by learned counsel for appellants that if really AO1 wanted to
receive bribe, he alone would have received the same and there was no need
to bring AO2.
So all the above would cumulatively probablised the defence
plea.
As already observed supra, the defence can establish its stand through
preponderance of probability and not by proving beyond reasonable doubt.
The defence could succeed in this regard.
14) So on a conspectus of the entire facts and evidence on record, it must
be said that prosecution failed to prove the demand and acceptance of illegal
gratification by the accused. On the other hand, the accused succeeded to
prove their explanation. Hence, the judgment of the trial Court is liable to
be set aside.
15) In the result, Criminal Appeal Nos.1289 and 1343 of 2008 are
allowed setting aside the conviction and sentence passed by the trial Court
in C.C.No.33 of 2004.
2014 - July . Part - http://judis.nic.in/judis_andhra/filename=11574
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL Nos.1289 of 2008 and batch
01-07-2014
Sri Gundappa. ... Appellant/ A.1
The State, Rep. by Spl.S.C for ACB, Hyderabad. . Respondent
^Counsel for Appellant : Sri Akella Srinivas
!Counsel for Respondent : Sri R. Ramachandra Reddy
Spl. Standing Counsel for ACB
Spl. Standing Counsel for ACB
<Gist:
>Head Note:
? Cases referred:
1)1997(1) Crimes 186 (SC)
2)(2002) 10 SCC 371
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL Nos.1289 and 1343 of 2008
COMMON JUDGMENT:
Aggrieved by the judgment dated 20.10.2008 in C.C.No.33 of 2004
passed by the learned Additional Special Judge for SPE & ACB cases, City
Civil Court, Hyderabad convicting both the accused of the charges under
Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for
short PC Act) and sentencing each of them to undergo RI for one year and
pay fine of Rs.3,000/- and in default to pay fine amount to suffer SI for a
period of three months on two counts, AO1Gundappa preferred Criminal
Appeal No.1289 of 2008 and AO2Md.Sadiq Ali preferred Criminal
Appeal No.1343 of 2008.
2) The factual matrix of the case which led to file the Criminal Appeals
can be stated thus:
a) ComplainantT.N.Shivaram Setty (LW1) was a native of Nalgonda
town and running Meenakshi Lodge near Clock Tower Centre, Nalgonda.
b) AO1 was the Revenue Inspector and AO2 was the bill Collector of
Nalgonda Municipality. It is alleged that AO1 was residing in one of the
rooms of Hotel and he was not paying the room rent regularly. During 2002,
the complainant with an intention to remodel the interior portion of the
hotel, dismantled and began making interior alternations. While so, AO1
and AO2 approached the complainant and informed that permission has to
be obtained to make the constructions of inner portion and that complainant
had violated the terms of the Municipalities Act and AO1 threatened that he
would dismantle the constructed portion inspite of complainants asserting
that no permission was required for making interior alterations.
c) It is also alleged that AO1 demanded the complainant to pay
Rs.20,000/- towards bribe, otherwise he would dismantle the interior
structure. After great persuasion and pleading AO1 reduced the demanded
bribe amount from 20,000/- to Rs.10,000/- and instructed the complainant to
keep the amount ready at the office room of the Hotel by 08.11.2002 and
that AO1 would come and collect the same between 9 and 10 A.M.
d) Unwilling to pay bribe, LW1 submitted an oral complaint before
Inspector of Police, ACB (PW6) who reduced the same into writing. After
registration of FIR, PW.5the DSP laid trap on 08.11.2001 with the help of
PW.2 and LW.3the independent mediators. PW1 who was Receptionist-
cum-Manager of Meenakshi Lodge of the complainant was asked to act as
an accompanying witness.
e) Having laid the trap, the trap party members along with complainant
and PW1 went to the Meenakshi Lodge of complainant and the trap party
members took position in Room No.77 of the Lodge. At about 11.30 AM
both the AOs. came to the office room of the complainant and after AO1
reiterated his earlier demand, the complainant gave the tainted amount of
Rs.10,000/- to AO1, who accepted and handed over the same to AO2.
Having witnessed the same, PW1 went into the Room No.77 and informed
the trap party about the demand and acceptance. Immediately the trap party
members rushed to the office room of complainant and subjected both the
hand fingers of AO2. The right hand fingers of AO2 yielded positive result
and on questioning by TLO, he produced the amount before the mediators.
The mediators verified the numbers and denominations of the notes and they
tallied with the denominations and numbers mentioned in the pre-trap
proceedings. All the aforesaid were reduced into writing in post-trap
proceeding and both the AOs. were arrested and amount was recovered.
f) On appearance of the accused, the trial Court framed charges under
Sections 7 and 13(1)(d) r/w 13(2) of PC Act against AOs. and conducted
trial.
g) Pending trial, de facto complainant expired.
h) During trial, prosecution examined PWs.1 to 7 and got marked Exs.P1
to P12 and exhibited MOs.1 to 8. DW1 was examined and Exs.D1 and D2
were marked on behalf of defence.
i) The defence plea is one of total denial of the offence.
j) AO1 admitted that he stayed in a room in the lodge of de facto
complainant. Then, the version of AO1 and AO2 was that on the
representation of complainant, they went to the lodge of AO1 and received
the amount from de facto complainant towards arrears of tax and handed
over the same to AO2 who was the Bill Collector and meanwhile, the ACB
officials came and caught them.
k) A perusal of the judgment would show that taking the admission of
accused that they received the amount from the complainant, the trial Court
opined that the burden was on the accused to establish that the amount
received by them was only towards part payment of arrears of tax but not as
bribe but they failed to prove firstly that they were competent to receive the
tax and secondly that they were competent to receive part-payment of tax.
Ultimately, trial Court came to the conclusion that both the accused
demanded and accepted illegal gratification other than legal remuneration
and accordingly convicted and sentenced them as stated supra.
Hence, the appeals.
3) As per the orders in Crl.M.P.No.2035 of 2013 dated 24.03.2014, the
matter was expedited and taken up for hearing.
4) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for
appellant/A1 in Crl.A.No.1289 of 2008, Sri Akella Srinivas Rao, learned
counsel for appellant/A2 in Crl.A.No.1343 of 2008 and Sri R.Ramachandra
Reddy, learned Special Standing Counsel for ACB (Spl.S.C).
5 a) Impugning the judgment learned counsel for AO1 firstly argued that
the prosecution failed to prove the vital ingredients of the offence i.e.
demand and acceptance of bribe. Expatiating it he argued that as per
prosecution, de facto complainant and PW1 are the two persons who know
about the demand and acceptance of bribe but de facto complainant since
died and PW1 did not support the prosecution case on the aspect of demand
and acceptance of bribe, the trial Court ought to have held that prosecution
failed to prove the vital ingredients of the offence. However, the trial Court
on a wrong appreciation of facts, evidence and law held as if the prosecution
by substantial evidence proved those vital ingredients and drew the
presumption under Section 20 of PC Act against accused and held as if
accused failed to rebut the presumption.
b) Secondly, learned counsel argued that the trial Court committed a
total blunder in appreciation of explanation offered by the accused. He
submitted that Ex.D1 would clearly show that long prior to the trap, the
Nalgonda Municipality issued demand notice to the de facto complainant
regarding arrears of tax and it would support the defence theory that both
accused went to the lodge of the complainant in fact to collect the arrears of
the tax. Learned counsel vehemently argued that if really the purpose of
their visit was to further demand and accept the bribe, there was no need for
AO1 to take AO2 all along from the Municipal Office to the lodge. This
would show that AO1 bonafidely believed the representation made by the
complainant on the morning of the trap that he would pay the arrears of tax
if AO1 brings Bill Collector (AO2) to the lodge and accordingly took him to
the lodge. Learned counsel argued that the defence explanation would get
strength also from the fact that on seeing the trap party the accused were
neither perplexed, or tremored nor AO2 tried to hide or throw away the
tainted amount in his hands and on the other, they gave a spontaneous
explanation that they received the amount bonafidely believing the
representation of the complainant that he was going to pay arrears of the tax
and this spontaneous explanation was found place in Ex.P5 (second
mediators report) also. Learned counsel further submitted, the fact that the
amount was in possession of AO2Bill Collector would further strengthen
the defence theory that since it was represented by the complainant that he
was paying the arrears of the tax, AO1 received the same and immediately
handed over to AO2 who being the Bill Collector authorised to receive and
hold the amount.
6) Whereas learned counsel for AO2 while adopting the arguments of
AO1 further argued that in this case absolutely there was no allegation of
demand of bribe by AO2 and in fact even according to prosecution, he went
to the lodge of the de facto complainant only on the date of trap. If the
defence version is believed, he went to the lodge only on the representation
of AO1 to the effect that the de facto complainant told him that he was
going to pay the arrears of the tax and asked him to bring him (AO2) for that
purpose. Learned counsel argued that Ex.D.1demand notice would
clearly show that Nalgonda Municipality had already issued notice to de
facto complainant for payment of tax. He submitted that it is a common
knowledge that Bill Collector would personally go to respective premises
and collect the tax and following the same procedure, in this case also he
went to the lodge of the complainant and when de facto complainant paid
the amount of Rs.10,000/- on the pretext of payment of arrears of tax, AO1
received and transferred to him and he accepted that amount and in the
meanwhile the ACB officers came and caught hold them. Learned counsel
vehemently argued that the amount only represent the part-payment of tax
but not the illegal gratification. Learned counsel submitted that unless
prosecution by cogent evidence establish that the amount received by the
accused was other than the legal remuneration, the presumption under
Section 20 of P.C. Act cannot be drawn. On this point, he relied upon the
decision reported in Mohmoodkhan Mahboobkhan Pathan vs. State of
Maharashtra . Learned counsel further submitted that AO2 is competent to
receive part-payment of the tax and in fact during the subsequent period, the
Government issued G.Os to the effect that if the assessee pay the arrears of
tax either fully or instalments wise, interest would be waived. He submitted
some G.Os to that effect and argued that receiving of tax in instalment wise
was in vogue. He argued that unlike prosecution, the accused need not
prove their defence rigorously and suffice if they could prove the defence by
showing the preponderance of probability.
Both the appellants thus prayed to allow their respective appeals.
7 a) Per contra, while supporting the judgment, learned Spl.S.C firstly
argued that though PW.1 turned hostile, the trial Court by taking the
admissible portion of his evidence coupled with the corroboration provided
by PW.2the mediator and PW.5Trap Laying Officer (TLO) has
ultimately held that the prosecution through the circumstantial evidence
could able to establish the demand and acceptance of the bribe by the
accused and in that process, further held that the accused failed to establish
the defence plea taken by them. Thus the finding of the trial Court was
factually and legally justified and there is no need to interfere with the same.
b) Secondly, he argued that the defence plea was illogical and untenable
for many reasons. He argued that if really the municipality issued Ex.D.1
notice to the de facto complainant calling for payment of arrears of tax,
there was no reason why the accused did not produce the said notice before
the Investigating Officer during the course of investigation. Further, PW.1
though turned hostile clearly deposed that he did not receive any such notice
as Manager of the lodge. Hence the alleged issuance of notice to the
complainant is an afterthought to create a make-believable defence theory.
Added to it, the accused failed to prove by cogent evidence that in fact they
were authorised to collect taxes that too part payments from the assessee as
proclaimed by them in this case. He thus prayed for dismissal of appeals.
8) In the light of above divergent arguments, the point for determination
these appeals is:
Whether the judgment of the trial Court is factually and legally
sustainable?
9) POINT: It being a trap case, prosecution shall by cogent evidence,
establish the demand and acceptance of the bribe by the accused to enable
the Court to draw presumption under Section 20 of P.C.Act. Unfortunately,
defacto complainant (LW.1) died even before commencement of trial, and
hence the trial Court had had no advantage of his evidence on the vital
ingredients of the offence i.e, demand and acceptance of the bribe. So the
prosecution case virtually pivoted on the evidence of PW.1 who was the
receptionist-cum-manager in Meenakshi Hotel and Lodge, Nalgonda run by
the de facto complainant. PW.1 no doubt gave evidence but did not support
prosecution case on some aspects and so he was declared hostile and cross-
examined by learned Special Public Prosecutor. Before discussing the
probative value of his evidence to know whether it serve any useful purpose
to prosecution, it is pertinent to mention the principles laid down by Honble
Apex Court on appreciation of the evidence of a hostile witness.
10) In its latest judgment (Paulmeli and another vs. State of Tamil
Nadu, Traffic Inspector of Police (MANU/SC/0505/2014)), Honble Apex
Court happened to discuss its previous judgments on the aspects
appreciation and probative value of a hostile witness. It observed thus:
16. This Court in Ramesh Harijan v. State of U.P. (AIR 2012
SC 1979) while dealing with the issue held:
It is a settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution
chose to treat him as hostile and cross examine him. The evidence
of such witnesses cannot be treated as effaced or washed off the
record altogether but the same can be accepted to the extent that
their version is found to be dependable on a careful scrutiny
thereof (Vide: Bhagwan Singh v. The State of Haryana : AIR
1976 SC 202; Rabindra Kumar Dey v. State of Orissa: AIR 1977
SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC 1848;
and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR
1991 SC 1853).
17. In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR 1996
SC 2766), this Court held that evidence of a hostile witness would
not be totally rejected if spoken in favour of the prosecution or the
accused but required to be subjected to close scrutiny and that
portion of the evidence which is consistent with the case of the
prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh
Narain Shukla v. Daroga Singh and others. (AIR 2008 SC 320);
Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462);
C. Muniappan and Ors. v. State of Tamil Nadu (AIR 2010 SC
3718); and Himanshu @ Chintu v. State (NCT of Delhi):(2011)
2 SCC 36).
Thus, the law can be summarized to the effect that the evidence of
a hostile witness cannot be discarded as a whole, and relevant
parts thereof which are admissible in law, can be used by the
prosecution or the defence.
In the light of above principles, it is now to be seen whether the
evidence of PW.1 offers any useful material helping the prosecution case
and whether that part of his evidence was amply corroborated by other
witnesses.
11) In the evidence of PW.1, the following important points were
emerged:
* I know AO1 who was staying in our Lodge by taking a room and he was
not paying the room rent regularly.
* During the year 2002, due to vastu variations, our Proprietor T.N.
Shivaram
Setty (LW1) intended to dismantle the interior portion of the Hotel and
accordingly in October, 2002 he dismantled the interior portion and started
modification as per vastu.
* During the time of construction works, AO1 has enquired me about the said
works and I told that our owner was making constructions.
* About 15 days after the date of construction of the interior portions of
the
Hotel, LW.1 informed me that AO1 was asking money and he informed me
that we have to go to ACB office and this conversation took place between
us in October and November, 2002.
* In the month of November on the instructions of LW.1, I went along with
him to ACB office and there the DSP introduced some Government
Officers and then told me that LW.1 gave complaint against AO1 and AO2
and asked me whether I can act as witness and I agreed. Then the DSP
instructed me to go to the lodge with LW.1 and inform them (trap party)
about the arrival of the accused to the lodge.
* At about 9:00am, LW.1 and I returned to Meenakshi Hotel and DSP and
other trap party members also came to the lodge and I allotted them Room
No.77 which was by the side of the office room of Proprietor.
* After half an hour, AO1 and AO2 came to our Hotel and asked me about
LW.1 and I told them to go to upstairs to his office room as he was
available in that room. Half an hour thereafter, I heard a sound of the bell
rang up from the office room of LW.1 and hearing the same, I went and
informed DSP, ACB who along with others were present in the Room
No.77, the DSP and trap party members immediately went to the office
room of my Proprietor whereas I came down to my counter and about 1
hour, the trap party members, LW.1 and AO1 and AO2 were in the office
room and except that I do not know anything and I was not called by the
DSP and I was not examined by him.
Cross-examination: In the cross of learned Special Public Prosecutor, the
following points emerged.
* The constructions were going on in October, 2002, AOs1 and 2 came and
enquired me about the constructions and I told them that our Proprietor was
making modifications.
* It is not true to suggest that AOs1 and 2 informed me that we were
effecting the modifications without permission and on that I told that the
constructions were made only in the inner side of the lodge and no
permission was required. It is not true to suggest that AOs1 and 2
cautioned me that if the constructions were made without permission, the
municipality will dismantle.
* It is not true to suggest that AOs1 and 2 demanded the amount of
Rs.20,000/- as bribe to permit for constructions in the lodge as otherwise
they will dismantle the constructions.
* It is not true to suggest that LW.1 informed AO1 that he was not getting
proper income for the lodge and requested to show some mercy and on that
AO1 agreed to receive Rs.10,000/- as bribe.
* It is not true to suggest that AO1 asked me two or three times about the
demanded bribe amount for which I expressed my inability and asked him
to go and meet my owner.
* It is not true to suggest that my Proprietor informed me that AO1
demanding Rs.10,000/- as bribe and we have to think over and plan.
* It is true that on 08.11.2002 on the instructions of my owner I followed
him
to the ACB office at about 7:30am.
* It is true that DSP instructed me to follow my owner to the Lodge and in
case AOs1 and 2 demanded and accepted bribe of Rs.10,000/- from LW.1,
I have to give intimation to the DSP and trap party.
* It is true that I and my Proprietor left to our Lodge and after sometime
the
DSP and trap party came to our lodge and LW.1 showed Room No.77 and
they occupied it.
* It is not true to suggest that on 08.11.2002 at about 11:45 am, AOs.1 and
2
came to office room while myself and my owner were present in the office
room and I witnessed when the AO1 demanded Rs.10,000/- bribe from my
owner and threatened to demolish the constructions already made by us and
that my owner picked up Rs.10,000/- from his lalchi pocket and gave it to
AO1 and AO1 verified the said currency notes and handed over to AO2.
Thereafter, I went to Room No.77 and informed the DSP, ACB about the
demand and acceptance and they rushed to the office room and the DSP
asked me to be present with him and the trap party.
* It is not true to suggest that I witnessed the trap incident and DSP
conducting chemical test to the AOs and recovery of amount from them
etc.,
* It is true that on 08.11.2002 the DSP ACB examined me and recorded my
statement.
12) Thus a threadbare analysis of the underlined portions of the evidence
of PW.1 would show that he has not supported the prosecution case on the
two vital ingredients of the crime i.e, demand and acceptance of bribe by the
accused. He has not admitted either his personal knowledge about the
demand and acceptance or about the de facto complainant informing him
about the demand made by the accused for bribe. Though in the chief-
examination he stated that LW.1 informed him that AO1 was asking money
but in the cross-examination he denied the very same aspect i.e, his
Proprietor informing him that AO1 demanded Rs.10,000/- as bribe. Thus,
he showed volte-face on the aspects of demand and acceptance of bribe by
the accused. At this juncture, I am constrained to mention here the blunder
committed by the prosecution. Though the prosecution declared PW.1 as
hostile and cross-examined him with reference to his earlier statements
recorded under Section 161 Cr.P.C and 164 Cr.P.C. but prosecution failed to
get mark the portions of those statements which were confronted and denied
by PW.1 for appreciation of the Court. So strictly speaking, the trial Court
and appellate Court were deprived of the advantage of looking into the
previous statements of this witness for comparison and assessment of his
evidence. Be that as it may, the evidence of PW.1 is not helpful to
prosecution to prove the aspects of demand and acceptance.
a) However, the trial Court found, despite PW.1s turning hostile, some
part of his evidence coupled with corroboration offered by PW.2 and PW.5
and other circumstances could amply prove the guilt of the accused and
moreover the accused failed to establish their defence plea and thus they are
liable for the charges. I am unable to agree with the finding of the trial
Court. As already stated supra, PW.1s evidence is not helpful to establish
the aspect of demand and acceptance of bribe. After severing chaff from the
grain, at best his evidence will be useful to the prosecution to the extent that
PW.1 followed the de facto complainant to the ACB office on the date of
trap and PW.5 instructed him to be with the de facto complainant and if
accused made a further demand and accepted bribe, then come to the trap
party members positioned in the adjacent room and inform and he agreed
the same and though he did not personally see accused demanding and
accepting the bribe, he went to Room No.77 and informed the PW.5 about
the arrival and presence of AOs in the office room of de facto complainant.
The aforesaid admissible part of his evidence, it must be said, will not be of
much use to the prosecution in view of the admission of the accused that
they in fact visited lodge-cum-hotel of de facto complainant and met him
and also received the amount from him. Their defence plea was that what
they received from LW.1 under bonafide belief was arrears of tax but not
the bribe. So the crucial point is whether the LW.1 paid the amount as bribe
or as part of the arrears of tax. Needless to say that the primary burden will
be on the prosecution to establish that the amount was paid as illegal
gratification other than legal remuneration. Then only the presumption
under Section 20 of P.C. Act would follow, necessitating the accused to
rebut the same by cogent explanation. Since the evidence of PW.1 will be
of no avail in that direction it has to be seen whether the evidence of PWs.2
and 5 would establish the demand and acceptance of the illegal gratification
by the accused.
b) PW.2 is the mediator. His evidence would show, admittedly he was
not instructed by the TLO to follow de facto complainant and watch what
was going to transpire between him and the accused and report to the other
members of the trap party. Thus he was in not used as a shadow witness in
this case. He and the other mediator (LW.4) attended pre-trap proceedings
in the ACB office on the date of trap and then followed PW.5T.L.O to
Meenakshi Lodge and waited along with him in Room No.77 for the signal
of PW.1. According to PW.2, after sometime PW.1 came and informed
about accused receiving the bribe amount and then he and other members of
the trap party rushed to the office room of the de facto complainant. Thus, it
is clear that PW.2 was also not a direct witness who waited the events
transpired between the de facto complainant and accused. Hence, his
evidence is not helpful to establish that the amount paid by LW.1 was
towards illegal gratification. Ofcourse, in his evidence PW.2 deposed that
PW.1 came to Room No.77 and informed the trap party members about the
demand and acceptance of bribe by the accused from the de facto
complainant. So PW.2 claimed to have heard from PW.1 that he (PW.1)
saw accused demanded and accepted bribe from the de facto complainant.
So the point is whether this part of his evidence will help prosecution to
prove the demand and acceptance of the bribe by the accused. It must be an
emphatic no because PW.2s evidence is a hearsay evidence and this part of
PW.2s evidence when confronted to PW.1, was not admitted by him. It
may be recapitulated that in the cross-examination, PW.1 denied the
suggestion that he (PW.1) witnessed AO1 demanded Rs.10,000/- as bribe
from his owner and his owner picked up the amount from his lalchi pocket
and gave it to AO1 and he verified the currency notes and handed over to
AO2 and after that he (PW.1) went to the Room No.77 and informed the
DSP ACB about the demand and acceptance of the bribe amount by the
accused from his owner. So when the entire evidence of PW.1 is perused,
what all he admitted is he went and informed to the trap party members
about the presence of the accused in the office room of de facto
complainant. But he has not admitted that he personally saw accused
demanding and accepting the bribe from his owner and his revealing the
same to the trap party members by going to Room No.77. When, for
whatever reason PW.1 was not admitting this crucial fact, it will not be safe
to believe from PW.2 that he said so. Similar is the case with PW.5. He too
deposed that at about 11:45 am, PW.1 came and informed to the trap party
members about the demand and acceptance of bribe by AO1 from the
complainant. When PW1 denies his personal watching of the passing of the
money and his stating to the trap party members as if the accused demanded
and accepted the bribe from the de facto complainant, the hearsay evidence
of PW.5 cannot be accepted. So on a conspectus of the evidence of PWs.1,
2 and 5, it must be said that prosecution failed to establish the demand and
acceptance of the bribe in a cogent and convincing manner. The evidence of
other witnesses is also not helpful as they were examined on other different
aspects. In the cited decision (1 supra), it was held that unless prosecution
proved that the money paid was not towards any lawful collection or legal
remuneration, the Court cannot draw presumption under Section 4(1) of
P.C.Act.
13) Now the defence explanation has to be perused. As already stated,
their version is that they received the amount on the belief that it was paid
towards arrears of tax. The point is whether the accused could convincingly
establish the same. In this context, Honble Apex Court in a decision
reported in Punjabrao vs. State of Maharashtra has held thus:
It is too well-settled that in a case where the accused offers an
explanation for receipt of the alleged amount, the question that
arises for consideration is whether that explanation can be said to
have been established. It is further clear that the accused is not
required to establish his defence by proving beyond reasonable
doubt as the prosecution, but can establish the same by
preponderance of probability.
So the defence plea has to be decided on the touch-stone of
preponderance of probability. They examined DW.1 to show that during the
relevant period, the Nalgonda Municipality issued notice to the de facto
complainant calling for payment of tax. DW.1the Municipal
Commissioner deposed that he issued notice under the original of Ex.D.1 on
28.09.2002 demanding the complainant to pay arrears tax of Rs.42,656/-.
He further stated that AO2the Bill Collector received the notice and the
notice was served on the complainant. In the cross-examination he clearly
stated that Ex.D.1 will not contain inward or outward number because the
notice will be served through the Bill Collector. It may be noted that Ex.D.1
contains the signature of the de facto complainant as T.N. Shivaram Setty.
The plea of accused is that on the date of trap the complainant asked AO1 to
bring the Bill Collector so that he will pay the arrears of the tax amount and
accordingly, AO1 went and brought AO2 to Meenakshi Lodge and they
received the amount. The trial Court rejected the defence pleas firstly on the
ground that PW.1 stated that he has not received any demand notice from
Municipal Commissioner. It must be said that this observation is wrong.
The demand notice might not have been served on PW.1 personally during
his presence in the lodge but it might have been served on the complainant.
It must not be forgotten that Ex.D.1 contains the signature of the
complainant. The argument of learned Spl.S.C in the appeal also cannot be
accepted. Merely because accused did not produce the Ex.D.1 during
investigation, its genuineness cannot be doubted particularly when DW.1
the Municipal Commissioner avouched its genuinity. The second ground on
which the trial Court rejected the defence plea was that the accused could
not establish that they were competent to receive the tax and further, they
were competent to receive part-payment of the tax. This objection also is
quite untenable for the reason that the prosecution neither during the
evidence of PW.4the Chairperson of Nalgonda Municipality nor during
the evidence of DW.1the Commissioner, has posed a question to them
regarding the aforesaid competency of AOs. Both PW.4 and DW.1 are the
competent persons to speak about this aspect. When prosecution did not
raise such a question, it cannot later contend that the accused were
incompetent either to collect the tax or to collect it installment wise.
Competency is concerned, PW.1 in his cross-examination clearly stated that
the municipal bill collector used to come to the lodge and collect the tax and
issue the receipts. So the competency of AO2 need not be doubted. When
the doubts raised by the trial Court are shelved, the defence theory would
appear to be probable. Further, most importantly, the accused offered a
spontaneous explanation to the TLO regarding the purpose of their receiving
the amount from the de facto complainant. Added to it, AO1s bringing
along with him AO2 to the lodge gives strength to the defence plea that they
came to receive the tax on the representation of the de facto complainant. It
was argued by learned counsel for appellants that if really AO1 wanted to
receive bribe, he alone would have received the same and there was no need
to bring AO2. So all the above would cumulatively probablised the defence
plea. As already observed supra, the defence can establish its stand through
preponderance of probability and not by proving beyond reasonable doubt.
The defence could succeed in this regard.
14) So on a conspectus of the entire facts and evidence on record, it must
be said that prosecution failed to prove the demand and acceptance of illegal
gratification by the accused. On the other hand, the accused succeeded to
prove their explanation. Hence, the judgment of the trial Court is liable to
be set aside.
15) In the result, Criminal Appeal Nos.1289 and 1343 of 2008 are
allowed setting aside the conviction and sentence passed by the trial Court
in C.C.No.33 of 2004. The bail bonds of the accused shall stand cancelled.
As a sequel, pending miscellaneous petitions if any, shall stand
closed.
________________________
U.DURGA PRASAD RAO, J
Date: 01.07.2014
The plea of accused is that on the date of trap the complainant asked AO1 to
bring the Bill Collector so that he will pay the arrears of the tax amount and
accordingly, AO1 went and brought AO2 to Meenakshi Lodge and they
received the amount.
The trial Court rejected the defence pleas firstly on the
ground that PW.1 stated that he has not received any demand notice from
Municipal Commissioner.
It must be said that this observation is wrong.
The demand notice might not have been served on PW.1 personally during
his presence in the lodge but it might have been served on the complainant.
It must not be forgotten that Ex.D.1 contains the signature of the
complainant.
The argument of learned Spl.S.C in the appeal also cannot be
accepted.
Merely because accused did not produce the Ex.D.1 during
investigation, its genuineness cannot be doubted particularly when DW.1
the Municipal Commissioner avouched its genuinity.
The second ground on
which the trial Court rejected the defence plea was that the accused could
not establish that they were competent to receive the tax and further, they
were competent to receive part-payment of the tax.
This objection also is
quite untenable for the reason that the prosecution neither during the
evidence of PW.4the Chairperson of Nalgonda Municipality nor during
the evidence of DW.1the Commissioner, has posed a question to them
regarding the aforesaid competency of AOs.
Both PW.4 and DW.1 are the
competent persons to speak about this aspect.
When prosecution did not
raise such a question, it cannot later contend that the accused were
incompetent either to collect the tax or to collect it installment wise.
Competency is concerned, PW.1 in his cross-examination clearly stated that
the municipal bill collector used to come to the lodge and collect the tax and
issue the receipts. So the competency of AO2 need not be doubted.
When
the doubts raised by the trial Court are shelved, the defence theory would
appear to be probable.
Further, most importantly, the accused offered a
spontaneous explanation to the TLO regarding the purpose of their receiving
the amount from the de facto complainant.
Added to it, AO1s bringing
along with him AO2 to the lodge gives strength to the defence plea that they
came to receive the tax on the representation of the de facto complainant.
It
was argued by learned counsel for appellants that if really AO1 wanted to
receive bribe, he alone would have received the same and there was no need
to bring AO2.
So all the above would cumulatively probablised the defence
plea.
As already observed supra, the defence can establish its stand through
preponderance of probability and not by proving beyond reasonable doubt.
The defence could succeed in this regard.
14) So on a conspectus of the entire facts and evidence on record, it must
be said that prosecution failed to prove the demand and acceptance of illegal
gratification by the accused. On the other hand, the accused succeeded to
prove their explanation. Hence, the judgment of the trial Court is liable to
be set aside.
15) In the result, Criminal Appeal Nos.1289 and 1343 of 2008 are
allowed setting aside the conviction and sentence passed by the trial Court
in C.C.No.33 of 2004.
2014 - July . Part - http://judis.nic.in/judis_andhra/filename=11574
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL Nos.1289 of 2008 and batch
01-07-2014
Sri Gundappa. ... Appellant/ A.1
The State, Rep. by Spl.S.C for ACB, Hyderabad. . Respondent
^Counsel for Appellant : Sri Akella Srinivas
!Counsel for Respondent : Sri R. Ramachandra Reddy
Spl. Standing Counsel for ACB
Spl. Standing Counsel for ACB
<Gist:
>Head Note:
? Cases referred:
1)1997(1) Crimes 186 (SC)
2)(2002) 10 SCC 371
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL Nos.1289 and 1343 of 2008
COMMON JUDGMENT:
Aggrieved by the judgment dated 20.10.2008 in C.C.No.33 of 2004
passed by the learned Additional Special Judge for SPE & ACB cases, City
Civil Court, Hyderabad convicting both the accused of the charges under
Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for
short PC Act) and sentencing each of them to undergo RI for one year and
pay fine of Rs.3,000/- and in default to pay fine amount to suffer SI for a
period of three months on two counts, AO1Gundappa preferred Criminal
Appeal No.1289 of 2008 and AO2Md.Sadiq Ali preferred Criminal
Appeal No.1343 of 2008.
2) The factual matrix of the case which led to file the Criminal Appeals
can be stated thus:
a) ComplainantT.N.Shivaram Setty (LW1) was a native of Nalgonda
town and running Meenakshi Lodge near Clock Tower Centre, Nalgonda.
b) AO1 was the Revenue Inspector and AO2 was the bill Collector of
Nalgonda Municipality. It is alleged that AO1 was residing in one of the
rooms of Hotel and he was not paying the room rent regularly. During 2002,
the complainant with an intention to remodel the interior portion of the
hotel, dismantled and began making interior alternations. While so, AO1
and AO2 approached the complainant and informed that permission has to
be obtained to make the constructions of inner portion and that complainant
had violated the terms of the Municipalities Act and AO1 threatened that he
would dismantle the constructed portion inspite of complainants asserting
that no permission was required for making interior alterations.
c) It is also alleged that AO1 demanded the complainant to pay
Rs.20,000/- towards bribe, otherwise he would dismantle the interior
structure. After great persuasion and pleading AO1 reduced the demanded
bribe amount from 20,000/- to Rs.10,000/- and instructed the complainant to
keep the amount ready at the office room of the Hotel by 08.11.2002 and
that AO1 would come and collect the same between 9 and 10 A.M.
d) Unwilling to pay bribe, LW1 submitted an oral complaint before
Inspector of Police, ACB (PW6) who reduced the same into writing. After
registration of FIR, PW.5the DSP laid trap on 08.11.2001 with the help of
PW.2 and LW.3the independent mediators. PW1 who was Receptionist-
cum-Manager of Meenakshi Lodge of the complainant was asked to act as
an accompanying witness.
e) Having laid the trap, the trap party members along with complainant
and PW1 went to the Meenakshi Lodge of complainant and the trap party
members took position in Room No.77 of the Lodge. At about 11.30 AM
both the AOs. came to the office room of the complainant and after AO1
reiterated his earlier demand, the complainant gave the tainted amount of
Rs.10,000/- to AO1, who accepted and handed over the same to AO2.
Having witnessed the same, PW1 went into the Room No.77 and informed
the trap party about the demand and acceptance. Immediately the trap party
members rushed to the office room of complainant and subjected both the
hand fingers of AO2. The right hand fingers of AO2 yielded positive result
and on questioning by TLO, he produced the amount before the mediators.
The mediators verified the numbers and denominations of the notes and they
tallied with the denominations and numbers mentioned in the pre-trap
proceedings. All the aforesaid were reduced into writing in post-trap
proceeding and both the AOs. were arrested and amount was recovered.
f) On appearance of the accused, the trial Court framed charges under
Sections 7 and 13(1)(d) r/w 13(2) of PC Act against AOs. and conducted
trial.
g) Pending trial, de facto complainant expired.
h) During trial, prosecution examined PWs.1 to 7 and got marked Exs.P1
to P12 and exhibited MOs.1 to 8. DW1 was examined and Exs.D1 and D2
were marked on behalf of defence.
i) The defence plea is one of total denial of the offence.
j) AO1 admitted that he stayed in a room in the lodge of de facto
complainant. Then, the version of AO1 and AO2 was that on the
representation of complainant, they went to the lodge of AO1 and received
the amount from de facto complainant towards arrears of tax and handed
over the same to AO2 who was the Bill Collector and meanwhile, the ACB
officials came and caught them.
k) A perusal of the judgment would show that taking the admission of
accused that they received the amount from the complainant, the trial Court
opined that the burden was on the accused to establish that the amount
received by them was only towards part payment of arrears of tax but not as
bribe but they failed to prove firstly that they were competent to receive the
tax and secondly that they were competent to receive part-payment of tax.
Ultimately, trial Court came to the conclusion that both the accused
demanded and accepted illegal gratification other than legal remuneration
and accordingly convicted and sentenced them as stated supra.
Hence, the appeals.
3) As per the orders in Crl.M.P.No.2035 of 2013 dated 24.03.2014, the
matter was expedited and taken up for hearing.
4) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for
appellant/A1 in Crl.A.No.1289 of 2008, Sri Akella Srinivas Rao, learned
counsel for appellant/A2 in Crl.A.No.1343 of 2008 and Sri R.Ramachandra
Reddy, learned Special Standing Counsel for ACB (Spl.S.C).
5 a) Impugning the judgment learned counsel for AO1 firstly argued that
the prosecution failed to prove the vital ingredients of the offence i.e.
demand and acceptance of bribe. Expatiating it he argued that as per
prosecution, de facto complainant and PW1 are the two persons who know
about the demand and acceptance of bribe but de facto complainant since
died and PW1 did not support the prosecution case on the aspect of demand
and acceptance of bribe, the trial Court ought to have held that prosecution
failed to prove the vital ingredients of the offence. However, the trial Court
on a wrong appreciation of facts, evidence and law held as if the prosecution
by substantial evidence proved those vital ingredients and drew the
presumption under Section 20 of PC Act against accused and held as if
accused failed to rebut the presumption.
b) Secondly, learned counsel argued that the trial Court committed a
total blunder in appreciation of explanation offered by the accused. He
submitted that Ex.D1 would clearly show that long prior to the trap, the
Nalgonda Municipality issued demand notice to the de facto complainant
regarding arrears of tax and it would support the defence theory that both
accused went to the lodge of the complainant in fact to collect the arrears of
the tax. Learned counsel vehemently argued that if really the purpose of
their visit was to further demand and accept the bribe, there was no need for
AO1 to take AO2 all along from the Municipal Office to the lodge. This
would show that AO1 bonafidely believed the representation made by the
complainant on the morning of the trap that he would pay the arrears of tax
if AO1 brings Bill Collector (AO2) to the lodge and accordingly took him to
the lodge. Learned counsel argued that the defence explanation would get
strength also from the fact that on seeing the trap party the accused were
neither perplexed, or tremored nor AO2 tried to hide or throw away the
tainted amount in his hands and on the other, they gave a spontaneous
explanation that they received the amount bonafidely believing the
representation of the complainant that he was going to pay arrears of the tax
and this spontaneous explanation was found place in Ex.P5 (second
mediators report) also. Learned counsel further submitted, the fact that the
amount was in possession of AO2Bill Collector would further strengthen
the defence theory that since it was represented by the complainant that he
was paying the arrears of the tax, AO1 received the same and immediately
handed over to AO2 who being the Bill Collector authorised to receive and
hold the amount.
6) Whereas learned counsel for AO2 while adopting the arguments of
AO1 further argued that in this case absolutely there was no allegation of
demand of bribe by AO2 and in fact even according to prosecution, he went
to the lodge of the de facto complainant only on the date of trap. If the
defence version is believed, he went to the lodge only on the representation
of AO1 to the effect that the de facto complainant told him that he was
going to pay the arrears of the tax and asked him to bring him (AO2) for that
purpose. Learned counsel argued that Ex.D.1demand notice would
clearly show that Nalgonda Municipality had already issued notice to de
facto complainant for payment of tax. He submitted that it is a common
knowledge that Bill Collector would personally go to respective premises
and collect the tax and following the same procedure, in this case also he
went to the lodge of the complainant and when de facto complainant paid
the amount of Rs.10,000/- on the pretext of payment of arrears of tax, AO1
received and transferred to him and he accepted that amount and in the
meanwhile the ACB officers came and caught hold them. Learned counsel
vehemently argued that the amount only represent the part-payment of tax
but not the illegal gratification. Learned counsel submitted that unless
prosecution by cogent evidence establish that the amount received by the
accused was other than the legal remuneration, the presumption under
Section 20 of P.C. Act cannot be drawn. On this point, he relied upon the
decision reported in Mohmoodkhan Mahboobkhan Pathan vs. State of
Maharashtra . Learned counsel further submitted that AO2 is competent to
receive part-payment of the tax and in fact during the subsequent period, the
Government issued G.Os to the effect that if the assessee pay the arrears of
tax either fully or instalments wise, interest would be waived. He submitted
some G.Os to that effect and argued that receiving of tax in instalment wise
was in vogue. He argued that unlike prosecution, the accused need not
prove their defence rigorously and suffice if they could prove the defence by
showing the preponderance of probability.
Both the appellants thus prayed to allow their respective appeals.
7 a) Per contra, while supporting the judgment, learned Spl.S.C firstly
argued that though PW.1 turned hostile, the trial Court by taking the
admissible portion of his evidence coupled with the corroboration provided
by PW.2the mediator and PW.5Trap Laying Officer (TLO) has
ultimately held that the prosecution through the circumstantial evidence
could able to establish the demand and acceptance of the bribe by the
accused and in that process, further held that the accused failed to establish
the defence plea taken by them. Thus the finding of the trial Court was
factually and legally justified and there is no need to interfere with the same.
b) Secondly, he argued that the defence plea was illogical and untenable
for many reasons. He argued that if really the municipality issued Ex.D.1
notice to the de facto complainant calling for payment of arrears of tax,
there was no reason why the accused did not produce the said notice before
the Investigating Officer during the course of investigation. Further, PW.1
though turned hostile clearly deposed that he did not receive any such notice
as Manager of the lodge. Hence the alleged issuance of notice to the
complainant is an afterthought to create a make-believable defence theory.
Added to it, the accused failed to prove by cogent evidence that in fact they
were authorised to collect taxes that too part payments from the assessee as
proclaimed by them in this case. He thus prayed for dismissal of appeals.
8) In the light of above divergent arguments, the point for determination
these appeals is:
Whether the judgment of the trial Court is factually and legally
sustainable?
9) POINT: It being a trap case, prosecution shall by cogent evidence,
establish the demand and acceptance of the bribe by the accused to enable
the Court to draw presumption under Section 20 of P.C.Act. Unfortunately,
defacto complainant (LW.1) died even before commencement of trial, and
hence the trial Court had had no advantage of his evidence on the vital
ingredients of the offence i.e, demand and acceptance of the bribe. So the
prosecution case virtually pivoted on the evidence of PW.1 who was the
receptionist-cum-manager in Meenakshi Hotel and Lodge, Nalgonda run by
the de facto complainant. PW.1 no doubt gave evidence but did not support
prosecution case on some aspects and so he was declared hostile and cross-
examined by learned Special Public Prosecutor. Before discussing the
probative value of his evidence to know whether it serve any useful purpose
to prosecution, it is pertinent to mention the principles laid down by Honble
Apex Court on appreciation of the evidence of a hostile witness.
10) In its latest judgment (Paulmeli and another vs. State of Tamil
Nadu, Traffic Inspector of Police (MANU/SC/0505/2014)), Honble Apex
Court happened to discuss its previous judgments on the aspects
appreciation and probative value of a hostile witness. It observed thus:
16. This Court in Ramesh Harijan v. State of U.P. (AIR 2012
SC 1979) while dealing with the issue held:
It is a settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution
chose to treat him as hostile and cross examine him. The evidence
of such witnesses cannot be treated as effaced or washed off the
record altogether but the same can be accepted to the extent that
their version is found to be dependable on a careful scrutiny
thereof (Vide: Bhagwan Singh v. The State of Haryana : AIR
1976 SC 202; Rabindra Kumar Dey v. State of Orissa: AIR 1977
SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC 1848;
and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR
1991 SC 1853).
17. In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR 1996
SC 2766), this Court held that evidence of a hostile witness would
not be totally rejected if spoken in favour of the prosecution or the
accused but required to be subjected to close scrutiny and that
portion of the evidence which is consistent with the case of the
prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh
Narain Shukla v. Daroga Singh and others. (AIR 2008 SC 320);
Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462);
C. Muniappan and Ors. v. State of Tamil Nadu (AIR 2010 SC
3718); and Himanshu @ Chintu v. State (NCT of Delhi):(2011)
2 SCC 36).
Thus, the law can be summarized to the effect that the evidence of
a hostile witness cannot be discarded as a whole, and relevant
parts thereof which are admissible in law, can be used by the
prosecution or the defence.
In the light of above principles, it is now to be seen whether the
evidence of PW.1 offers any useful material helping the prosecution case
and whether that part of his evidence was amply corroborated by other
witnesses.
11) In the evidence of PW.1, the following important points were
emerged:
* I know AO1 who was staying in our Lodge by taking a room and he was
not paying the room rent regularly.
* During the year 2002, due to vastu variations, our Proprietor T.N.
Shivaram
Setty (LW1) intended to dismantle the interior portion of the Hotel and
accordingly in October, 2002 he dismantled the interior portion and started
modification as per vastu.
* During the time of construction works, AO1 has enquired me about the said
works and I told that our owner was making constructions.
* About 15 days after the date of construction of the interior portions of
the
Hotel, LW.1 informed me that AO1 was asking money and he informed me
that we have to go to ACB office and this conversation took place between
us in October and November, 2002.
* In the month of November on the instructions of LW.1, I went along with
him to ACB office and there the DSP introduced some Government
Officers and then told me that LW.1 gave complaint against AO1 and AO2
and asked me whether I can act as witness and I agreed. Then the DSP
instructed me to go to the lodge with LW.1 and inform them (trap party)
about the arrival of the accused to the lodge.
* At about 9:00am, LW.1 and I returned to Meenakshi Hotel and DSP and
other trap party members also came to the lodge and I allotted them Room
No.77 which was by the side of the office room of Proprietor.
* After half an hour, AO1 and AO2 came to our Hotel and asked me about
LW.1 and I told them to go to upstairs to his office room as he was
available in that room. Half an hour thereafter, I heard a sound of the bell
rang up from the office room of LW.1 and hearing the same, I went and
informed DSP, ACB who along with others were present in the Room
No.77, the DSP and trap party members immediately went to the office
room of my Proprietor whereas I came down to my counter and about 1
hour, the trap party members, LW.1 and AO1 and AO2 were in the office
room and except that I do not know anything and I was not called by the
DSP and I was not examined by him.
Cross-examination: In the cross of learned Special Public Prosecutor, the
following points emerged.
* The constructions were going on in October, 2002, AOs1 and 2 came and
enquired me about the constructions and I told them that our Proprietor was
making modifications.
* It is not true to suggest that AOs1 and 2 informed me that we were
effecting the modifications without permission and on that I told that the
constructions were made only in the inner side of the lodge and no
permission was required. It is not true to suggest that AOs1 and 2
cautioned me that if the constructions were made without permission, the
municipality will dismantle.
* It is not true to suggest that AOs1 and 2 demanded the amount of
Rs.20,000/- as bribe to permit for constructions in the lodge as otherwise
they will dismantle the constructions.
* It is not true to suggest that LW.1 informed AO1 that he was not getting
proper income for the lodge and requested to show some mercy and on that
AO1 agreed to receive Rs.10,000/- as bribe.
* It is not true to suggest that AO1 asked me two or three times about the
demanded bribe amount for which I expressed my inability and asked him
to go and meet my owner.
* It is not true to suggest that my Proprietor informed me that AO1
demanding Rs.10,000/- as bribe and we have to think over and plan.
* It is true that on 08.11.2002 on the instructions of my owner I followed
him
to the ACB office at about 7:30am.
* It is true that DSP instructed me to follow my owner to the Lodge and in
case AOs1 and 2 demanded and accepted bribe of Rs.10,000/- from LW.1,
I have to give intimation to the DSP and trap party.
* It is true that I and my Proprietor left to our Lodge and after sometime
the
DSP and trap party came to our lodge and LW.1 showed Room No.77 and
they occupied it.
* It is not true to suggest that on 08.11.2002 at about 11:45 am, AOs.1 and
2
came to office room while myself and my owner were present in the office
room and I witnessed when the AO1 demanded Rs.10,000/- bribe from my
owner and threatened to demolish the constructions already made by us and
that my owner picked up Rs.10,000/- from his lalchi pocket and gave it to
AO1 and AO1 verified the said currency notes and handed over to AO2.
Thereafter, I went to Room No.77 and informed the DSP, ACB about the
demand and acceptance and they rushed to the office room and the DSP
asked me to be present with him and the trap party.
* It is not true to suggest that I witnessed the trap incident and DSP
conducting chemical test to the AOs and recovery of amount from them
etc.,
* It is true that on 08.11.2002 the DSP ACB examined me and recorded my
statement.
12) Thus a threadbare analysis of the underlined portions of the evidence
of PW.1 would show that he has not supported the prosecution case on the
two vital ingredients of the crime i.e, demand and acceptance of bribe by the
accused. He has not admitted either his personal knowledge about the
demand and acceptance or about the de facto complainant informing him
about the demand made by the accused for bribe. Though in the chief-
examination he stated that LW.1 informed him that AO1 was asking money
but in the cross-examination he denied the very same aspect i.e, his
Proprietor informing him that AO1 demanded Rs.10,000/- as bribe. Thus,
he showed volte-face on the aspects of demand and acceptance of bribe by
the accused. At this juncture, I am constrained to mention here the blunder
committed by the prosecution. Though the prosecution declared PW.1 as
hostile and cross-examined him with reference to his earlier statements
recorded under Section 161 Cr.P.C and 164 Cr.P.C. but prosecution failed to
get mark the portions of those statements which were confronted and denied
by PW.1 for appreciation of the Court. So strictly speaking, the trial Court
and appellate Court were deprived of the advantage of looking into the
previous statements of this witness for comparison and assessment of his
evidence. Be that as it may, the evidence of PW.1 is not helpful to
prosecution to prove the aspects of demand and acceptance.
a) However, the trial Court found, despite PW.1s turning hostile, some
part of his evidence coupled with corroboration offered by PW.2 and PW.5
and other circumstances could amply prove the guilt of the accused and
moreover the accused failed to establish their defence plea and thus they are
liable for the charges. I am unable to agree with the finding of the trial
Court. As already stated supra, PW.1s evidence is not helpful to establish
the aspect of demand and acceptance of bribe. After severing chaff from the
grain, at best his evidence will be useful to the prosecution to the extent that
PW.1 followed the de facto complainant to the ACB office on the date of
trap and PW.5 instructed him to be with the de facto complainant and if
accused made a further demand and accepted bribe, then come to the trap
party members positioned in the adjacent room and inform and he agreed
the same and though he did not personally see accused demanding and
accepting the bribe, he went to Room No.77 and informed the PW.5 about
the arrival and presence of AOs in the office room of de facto complainant.
The aforesaid admissible part of his evidence, it must be said, will not be of
much use to the prosecution in view of the admission of the accused that
they in fact visited lodge-cum-hotel of de facto complainant and met him
and also received the amount from him. Their defence plea was that what
they received from LW.1 under bonafide belief was arrears of tax but not
the bribe. So the crucial point is whether the LW.1 paid the amount as bribe
or as part of the arrears of tax. Needless to say that the primary burden will
be on the prosecution to establish that the amount was paid as illegal
gratification other than legal remuneration. Then only the presumption
under Section 20 of P.C. Act would follow, necessitating the accused to
rebut the same by cogent explanation. Since the evidence of PW.1 will be
of no avail in that direction it has to be seen whether the evidence of PWs.2
and 5 would establish the demand and acceptance of the illegal gratification
by the accused.
b) PW.2 is the mediator. His evidence would show, admittedly he was
not instructed by the TLO to follow de facto complainant and watch what
was going to transpire between him and the accused and report to the other
members of the trap party. Thus he was in not used as a shadow witness in
this case. He and the other mediator (LW.4) attended pre-trap proceedings
in the ACB office on the date of trap and then followed PW.5T.L.O to
Meenakshi Lodge and waited along with him in Room No.77 for the signal
of PW.1. According to PW.2, after sometime PW.1 came and informed
about accused receiving the bribe amount and then he and other members of
the trap party rushed to the office room of the de facto complainant. Thus, it
is clear that PW.2 was also not a direct witness who waited the events
transpired between the de facto complainant and accused. Hence, his
evidence is not helpful to establish that the amount paid by LW.1 was
towards illegal gratification. Ofcourse, in his evidence PW.2 deposed that
PW.1 came to Room No.77 and informed the trap party members about the
demand and acceptance of bribe by the accused from the de facto
complainant. So PW.2 claimed to have heard from PW.1 that he (PW.1)
saw accused demanded and accepted bribe from the de facto complainant.
So the point is whether this part of his evidence will help prosecution to
prove the demand and acceptance of the bribe by the accused. It must be an
emphatic no because PW.2s evidence is a hearsay evidence and this part of
PW.2s evidence when confronted to PW.1, was not admitted by him. It
may be recapitulated that in the cross-examination, PW.1 denied the
suggestion that he (PW.1) witnessed AO1 demanded Rs.10,000/- as bribe
from his owner and his owner picked up the amount from his lalchi pocket
and gave it to AO1 and he verified the currency notes and handed over to
AO2 and after that he (PW.1) went to the Room No.77 and informed the
DSP ACB about the demand and acceptance of the bribe amount by the
accused from his owner. So when the entire evidence of PW.1 is perused,
what all he admitted is he went and informed to the trap party members
about the presence of the accused in the office room of de facto
complainant. But he has not admitted that he personally saw accused
demanding and accepting the bribe from his owner and his revealing the
same to the trap party members by going to Room No.77. When, for
whatever reason PW.1 was not admitting this crucial fact, it will not be safe
to believe from PW.2 that he said so. Similar is the case with PW.5. He too
deposed that at about 11:45 am, PW.1 came and informed to the trap party
members about the demand and acceptance of bribe by AO1 from the
complainant. When PW1 denies his personal watching of the passing of the
money and his stating to the trap party members as if the accused demanded
and accepted the bribe from the de facto complainant, the hearsay evidence
of PW.5 cannot be accepted. So on a conspectus of the evidence of PWs.1,
2 and 5, it must be said that prosecution failed to establish the demand and
acceptance of the bribe in a cogent and convincing manner. The evidence of
other witnesses is also not helpful as they were examined on other different
aspects. In the cited decision (1 supra), it was held that unless prosecution
proved that the money paid was not towards any lawful collection or legal
remuneration, the Court cannot draw presumption under Section 4(1) of
P.C.Act.
13) Now the defence explanation has to be perused. As already stated,
their version is that they received the amount on the belief that it was paid
towards arrears of tax. The point is whether the accused could convincingly
establish the same. In this context, Honble Apex Court in a decision
reported in Punjabrao vs. State of Maharashtra has held thus:
It is too well-settled that in a case where the accused offers an
explanation for receipt of the alleged amount, the question that
arises for consideration is whether that explanation can be said to
have been established. It is further clear that the accused is not
required to establish his defence by proving beyond reasonable
doubt as the prosecution, but can establish the same by
preponderance of probability.
So the defence plea has to be decided on the touch-stone of
preponderance of probability. They examined DW.1 to show that during the
relevant period, the Nalgonda Municipality issued notice to the de facto
complainant calling for payment of tax. DW.1the Municipal
Commissioner deposed that he issued notice under the original of Ex.D.1 on
28.09.2002 demanding the complainant to pay arrears tax of Rs.42,656/-.
He further stated that AO2the Bill Collector received the notice and the
notice was served on the complainant. In the cross-examination he clearly
stated that Ex.D.1 will not contain inward or outward number because the
notice will be served through the Bill Collector. It may be noted that Ex.D.1
contains the signature of the de facto complainant as T.N. Shivaram Setty.
The plea of accused is that on the date of trap the complainant asked AO1 to
bring the Bill Collector so that he will pay the arrears of the tax amount and
accordingly, AO1 went and brought AO2 to Meenakshi Lodge and they
received the amount. The trial Court rejected the defence pleas firstly on the
ground that PW.1 stated that he has not received any demand notice from
Municipal Commissioner. It must be said that this observation is wrong.
The demand notice might not have been served on PW.1 personally during
his presence in the lodge but it might have been served on the complainant.
It must not be forgotten that Ex.D.1 contains the signature of the
complainant. The argument of learned Spl.S.C in the appeal also cannot be
accepted. Merely because accused did not produce the Ex.D.1 during
investigation, its genuineness cannot be doubted particularly when DW.1
the Municipal Commissioner avouched its genuinity. The second ground on
which the trial Court rejected the defence plea was that the accused could
not establish that they were competent to receive the tax and further, they
were competent to receive part-payment of the tax. This objection also is
quite untenable for the reason that the prosecution neither during the
evidence of PW.4the Chairperson of Nalgonda Municipality nor during
the evidence of DW.1the Commissioner, has posed a question to them
regarding the aforesaid competency of AOs. Both PW.4 and DW.1 are the
competent persons to speak about this aspect. When prosecution did not
raise such a question, it cannot later contend that the accused were
incompetent either to collect the tax or to collect it installment wise.
Competency is concerned, PW.1 in his cross-examination clearly stated that
the municipal bill collector used to come to the lodge and collect the tax and
issue the receipts. So the competency of AO2 need not be doubted. When
the doubts raised by the trial Court are shelved, the defence theory would
appear to be probable. Further, most importantly, the accused offered a
spontaneous explanation to the TLO regarding the purpose of their receiving
the amount from the de facto complainant. Added to it, AO1s bringing
along with him AO2 to the lodge gives strength to the defence plea that they
came to receive the tax on the representation of the de facto complainant. It
was argued by learned counsel for appellants that if really AO1 wanted to
receive bribe, he alone would have received the same and there was no need
to bring AO2. So all the above would cumulatively probablised the defence
plea. As already observed supra, the defence can establish its stand through
preponderance of probability and not by proving beyond reasonable doubt.
The defence could succeed in this regard.
14) So on a conspectus of the entire facts and evidence on record, it must
be said that prosecution failed to prove the demand and acceptance of illegal
gratification by the accused. On the other hand, the accused succeeded to
prove their explanation. Hence, the judgment of the trial Court is liable to
be set aside.
15) In the result, Criminal Appeal Nos.1289 and 1343 of 2008 are
allowed setting aside the conviction and sentence passed by the trial Court
in C.C.No.33 of 2004. The bail bonds of the accused shall stand cancelled.
As a sequel, pending miscellaneous petitions if any, shall stand
closed.
________________________
U.DURGA PRASAD RAO, J
Date: 01.07.2014
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