Sections 7 and 13(1)(d)(i) and (ii) r/w 13(2) of Prevention of Corruption Act, 1988 and Sec.20 of PC Act - Presumption - Sub-Registrar - merely because the bribe amount found in Almyrah of record room - merely the hands of accused not turned pink - merely because non -examination of chemical examiner - accused can not escape from conviction on the plea of planting theory when evidence of PW1 regarded as a trust worthy - their lordships of High court held that PW1 in his evidence clearly deposed that after receiving the amount, AO went inside the record room
which is adjacent to his room and came out and then endorsed on his receipt. So, it gives an irresistible conclusion that AO who knows the hiding place must have kept the bribe amount in between two registers but not PW1. This falsifies the evidence of DWs.1 and 2 that PW1 followed DW2 to record room. Therefore, the planting theory can be safely ignored. So, at the outset none of the grounds raised by the appellant are strong enough to crumble the prosecution case. The AO failed to rebut the presumption under Section 20 of PC Act.=
the Special
Judge for ACB cases, City Civil Court, Hyderabad whereunder he convicted
the Accused Officer (AO) for the charges under Sections 7 and 13(1)(d)(i)
and (ii) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C.
Act) and sentenced him to suffer RI for one year and pay fine of Rs.1,000/-
in default to undergo SI for three months on two counts for the offences
under Sections 7 and 13 (1)(d) of PC Act.=
whether defence could satisfactorily dispel the presumption under
Section 20 of PC Act and consequently the prosecution case.
a) The first argument is that PW1 is a black mailer and petition monger
and he gave complaint against SBI Branch Manager and trapped him
through CBI officials he also gave complaints against forest officials. It was
argued that on 06-06-1993 when he came to witness box he consumed some
sleeping tablets, as he might not dare enough to give false evidence against
AO. It is true that in the cross-examination of PW1 it was elicited that he
gave complaints against SBI Branch Manager and also some forest officials.
Further, the observation of trial Court in the deposition of PW1 would show
that he consumed about 20 sleeping tablets on the first day of his evidence
and immediately he was referred to hospital. From all these facts AO wants
to project PW1 as a habitual petition monger and his evidence is not
trustworthy. It must be stated that merely because PW1 gave complaints
against some officials that by itself his evidence cannot be stamped as
untrustworthy unless it is established that his previous complaints were
proved to be utter false in a court of law with an observation that he was a
petition monger. So, the testimony of PW1 cannot be viewed with coloured
glasses in the absence of proof that his previous complaints were false ones.
Sofaras the incident of his consuming tablets in the witness box is
concerned, there my be several reasons for his eccentric or desperate act but
without knowing the actual reason it cannot be dubbed as a compunction for
implicating AO in a false case. It must be noted that AO did not even give
such a suggestion to PW1. So, the otherwise trustworthy evidence of PW1
cannot be denounced on the grounds of his earlier complaints or his
consuming sleeping pills.
b) The second argument is about the impossibility of demanding and
accepting bribe before trap. It is the argument of appellant/AO that as per
Ex.P3sketch and also the oral evidence of PWs.1 and 2 the seats of AO
and his staff were located in the same hall and therefore it was highly
improbable that AO could demand and accept bribe in the presence of his
staff. The judgment would not show that such an argument was raised by the
AO before the trial Court. But however, since PW1 admitted in the cross-
examination that clerks also sit in the office hall of AO and Ex.P3rough
sketch also confirms the same, this argument entertained. This argument
though apparently sounds true but will not stand to reasoning. It must be
noted that the office of AO is a Sub Registrar office where registration of
various documents will be done every day on payment of due registration
fee. So, collection of amounts from the parties towards registration fee is
neither odd nor taboo. In this backdrop, AOs receiving bribe amount from
PW1 in the presence of his staff may not appear strange as they do not know
whether it was paid towards registration fee or bribe. In fact, in his chief
examination, PW1 clearly deposed that earlier he paid Rs.611/- towards
registration fee and AO received said amount and issued Ex.P5receipt to
him by duly endorsing on it that he would issue the document on
20-08-1993. This fact was not denied by AO. It would manifest the practice
of parties coming to Registrar Office paying amounts towards registration
fee. Therefore, this argument of AO cannot be accepted.
c) The next argument of the appellant is that the chemical test conducted
on his both hands did not yield positive result and the washes since inception
remained colourless and even during the evidence also Mos.4 to 6 remained
colourless and further the prosecution has not obtained the report from the
chemical expert showing that the chemical washes contain phenolphthalein
and Sodium Carbonate ions and therefore the prosecution failed to prove that
AO has demanded and accepted the bribe and handled the same on the date
of trap. It may be noted that Mos.4 and 5 are the sealed bottles containing
right and left hand washes of AO respectively. PW7 admitted in his cross-
examination that DSP did not refer the Mos.4 to 6 to chemical analyst to
detect phenolphthalein ions. It is true that it is a lapse on the part of IO.
However, merely due to the lapse on the part of IO, otherwise trustworthy
evidence of PW1 who emphatically stated that he paid bribe amount to AO
on his further demand cannot be shunned. It should not be forgotten that
chemical test in a trap case is only a corroborative piece of evidence to the
main evidence of the complainant. Merely because the prosecution failed to
substantiate the said corroborative evidence through chemical analysis, the
evidence of complainant need not be automatically discarded unless his
evidence too suffers inherent improbabilities and do not infuse confidence.
In this case, the evidence of PW1 is trustworthy throughout. The very same
amount which he brought and handed over to AO was found in between two
registers in the Almyrah of AOs record room. Therefore, in my view, the
non-examination of chemical analyst in proof of hand washes is not a
ground to discard the prosecution case. As rightly observed by the trial Court
the chemical test was conducted on 01-09-1993 whereas the evidence of
prosecution witnesses took place in 2003/2004. Because of such a long lapse
of time also the chances of pink colour turning into white cannot be ruled
out. Be that as it may, this aspect will not mitigate the genuinety of the
prosecution case.
d) Nextly and most importantly, it was argued by the appellant that the
bribe amount was not found on his person but it was found in between the
registers kept in Almyrah in the record room and PW1 while following his
attender to recover the document must have planted the amount. In this
regard, AO examined DWs.1 and 2 who are his staff to show that PW1 went
inside the record room on the date of trap. In the cross-examination PW1
denied the said suggestion. He admitted that there is a room adjacent to
office hall of AO but he stated that he does not know whether it was big or
small, as he never entered.
e) Coming to DW1 and DW2, they are the subordinate staff of AO.
DW1 is the Junior Assistant. He deposed that on 01-09-1993 when all the
staff were sitting in the hall and attending the work PW1 came around
11 AM to collect his document and produced a receipt before AO and AO
obtained his signature on receipt book and called Rehmanattender and
told him to give document to PW1. DW1 further stated that Rehman went
into the record room and PW1 also followed him to the record room. Soon
after collecting document from Rehman PW1 went away. He stated that
there are two ways for the people to enter into the office. Their office
consisting of three rooms and all the staff members sit in one room and all of
them can see the persons coming and going out. Then DW2 Syed Rehman,
attender also deposed in similar lines stating that on 01-09-1993 PW1 came
to their office and met AO and AO instructed him to give document to PW1
which was in record room and PW1 followed him to the record room and
this witness picked up the document from record room and gave it to PW1
and while PW1 going through the document he came out and sat on his
stool.
f) As can be seen from the evidence of DWs.1 and 2 they deposed as if
PW1 went into the record room along with DW2 for collecting his
document. As already stated supra, PW1 emphatically denied his going to
the record room. On taking all the concerned facts into consideration, it can
be said that the evidence of DWs.1 and 2 and consequent theory of planting
of money are false. The evidence of PWs.2 and 7 and Ex.P4second
mediators report would show that apart from bribe amount, another wad of
currency of Rs.1,168/- was also found in between two registers (vide MO7)
in the Almyrah. As rightly argued by learned Spl.P.P., the appearance of
another wad of currency apart from the bribe amount suggests an inference
that it was a habitual place for keeping money and bribe amount was not
surreptitously kept but selectively placed there. PW1 being a stranger to Sub
Registrar office he was not expected to know the said place. On the other
hand, some one who was acquainted with that hiding place must have kept
the bribe amount like the other wad of currency. PW1 in his evidence clearly
deposed that after receiving the amount, AO went inside the record room
which is adjacent to his room and came out and then endorsed on his receipt.
So, it gives an irresistible conclusion that AO who knows the hiding place
must have kept the bribe amount in between two registers but not PW1.
This falsifies the evidence of DWs.1 and 2 that PW1 followed DW2 to
record room. Therefore, the planting theory can be safely ignored. So, at the
outset none of the grounds raised by the appellant are strong enough to
crumble the prosecution case. The AO failed to rebut the presumption under
Section 20 of PC Act. The cited decision in Kusheed Khans case (1 supra)
will not help him.
12) In the result, this Criminal Appeal is dismissed by confirming the
judgment of the trial Court in C.C.No.8 of 1994.
2014(May.Part) http://judis.nic.in/judis_andhra/filename=11261
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.297 of 2006
25-04-2014
J.Raghavendra Chary (died) per LRs..Appellant
State of Andhra Pradesh Through Inspector of Police, ACB,Hyderabad Range,
Mahabubnagar Dist..Respondent
Counsel for Appellant: Sri C. Nageswara Rao
Counsel for Respondent:Sri M.B. Thimma Reddy,
Special Public Prosecutor for ACB
<Gist:
>Head Note:
?Cases referred:
1)1980 (2) ALT 1
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.297 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the
judgment dated 27.02.2006 in C.C.No.8 of 1994 passed by the Special
Judge for ACB cases, City Civil Court, Hyderabad whereunder he convicted
the Accused Officer (AO) for the charges under Sections 7 and 13(1)(d)(i)
and (ii) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C.
Act) and sentenced him to suffer RI for one year and pay fine of Rs.1,000/-
in default to undergo SI for three months on two counts for the offences
under Sections 7 and 13 (1)(d) of PC Act.
2) The factual matrix of the case, which led to file the instant appeal, can
be stated thus:
a) The A.OJ.Raghavendra Chary worked as Sub-Registrar of
Kollapur, Mahabubnagar. Khaja Moinuddin (PW1) is a resident of Kollapur
Village. He applied for a loan under SETMAH Scheme. To grant loan, the
bank insisted him to furnish security of immovable property. Therefore, he
arranged security and presented a mortgage deed executed by his mother on
28-07-1993 before the AO. Then the AO demanded an amount of Rs.1,000/-
as bribe for returning the mortgage deed after due registration.
b) PW1 not willing to pay the demanded bribe amount approached
Deputy Superintendent of Police (DSP), ACB, Hyderabad Range,
Hyderabad and lodged a written complaintEx.P1. Basing on the said
complaint a case in Cr.No.6/ADB-HR/93 was registered under Sections
7 and 11 of PC Act against the AO and trap was organised on 01-09-1993.
c) On 01-09-1993, AO again demanded and accepted the tainted amount
of Rs.1,000/- from PW1 at Sub-Registrar office and was caught red-handed
by the ACB officials. His hands were subjected to chemical test which
yielded positive result. At the instance of AO, IO recovered the bribe
amount in between the registers in wooden Almyrah in record room of Sub-
Registrar office. On completion of investigation charge sheet was laid
against AO for the offences under Sections 7, 11 and 13(2) r/w 13(1)(d) (i)
and (ii) of PC Act. On appearance of AO, the trial Court framed charges
under Sections 7 and 13 (1)(d)(i) and (ii) r/w 13(2) of PC Act and trial was
conducted.
d) During trial PWs.1 to 7 were examined and Exs.P1 to P11 and MOs.
1 to 8 were exhibited on behalf of prosecution. DWs.1 and 2 were examined
on behalf of defence.
e) The defence plea is one of total denial of prosecution case. In the
written statement filed by AO while admitting that he worked as Sub-
Registrar, Kollapur during the relevant period and that Smt.Julekha Bee
executed a mortgage deed on 28-07-1993 and registered in the Sub-
Registrar Office, Kollapur, he denied demanding any bribe for return of the
mortgage deed to PW1. AO pleaded that on 01-09-1993 at about 12.30 PM
he handed over the document to PW1 and he left the AOs room from
record room side and afterwards the trap party came and conducted the test
on his hands, but there was no change of colour. They obtained the
signatures on the panchanama without allowing him to verify the contents.
AO further pleaded that he never demanded and received the bribe amount
from PW1 on 01-09-1993 and that he came to know that PW1 is a litigant
and black mailer and even in the Court he consumed tablets on 06-06-2003
and he was sent to the hospital and later on he was examined on 02-09-1993
which itself shows the mental condition of PW1 and his un-preparedness to
give evidence against AO, as it was a foisted case. Besides the written
statement, in the cross-examination he suggested that the bribe amount was
planted by him. Thus, as stated supra, his defence plea is one of total denial
of prosecution case.
f) The trial Court on appreciation of oral and documentary evidence on
record found the AO guilty of the charges levelled against him and
accordingly sentenced him as stated supra.
3) Hence, the appeal by the accused. Pending appeal the appellant died
and as per order dated 18-03-2013 in Crl.A.M.P.No.136 of 2013 the wife of
AO viz. J.Seeta was permitted to come on record to prosecute the appeal.
4) Heard arguments of Sri C.Nageswara Rao, learned counsel for
appellant and Sri M.B.Thimma Reddy, learned Special Public Prosecutor
(Spl.P.P.) for ACB cases.
5a) Impugning the judgment, learned counsel for appellant firstly argued
that he never demanded or accepted any bribe from PW1 and false case was
foisted against him. PW1 is a black mailer and petition monger and in fact,
he gave complaint against SBI Branch Manager and trapped him through
CBI officials and further he gave complaints against forest officials. Thus,
he is a habitual petition monger. On the first day of evidence i.e. 06-06-2003
when he came to witness box he consumed some sleeping tablets as he was
not dare enough to give false evidence against AO. In view of these
circumstances his evidence may not be believed.
b) Secondly, learned counsel argued that on the date of trap the AO did
not demand and accept the bribe amount from PW1. As per Ex.P3sketch
the seats of AO and his other staff are located in the same hall and before
trap they were all working in their respective seats. In such circumstances, it
is highly improbable, nay, impossible for AO to accept bribe from PW1 in
the presence of his staff. Further, the chemical test conducted on both hands
of AO in fact did not yield any positive result. The washes remained white.
The IO did not send the chemical washes to the Forensic Science Laboratory
(FSL) and even assuming he did so, prosecution did not obtain report from
FSL and file before the Court and he did not examine the chemical expert.
So, practically there is no plausible evidence to show that AO handled the
tainted bribe amount. Apart from it, the tainted money was admittedly not
recovered from the person of the AO which indicates that he did not demand
and accept the bribe amount. The tainted amount was found in Almyrah in
record room as it was planted by PW1 while going into the record room.
Learned counsel thus argued that the facts and evidence would show that
AO did not demand and accept the bribe amount but it was planted by PW1
to implicate him in the case.
c) Finally, learned counsel argued when prosecution failed to prove
demand and acceptance by cogent evidence, no statutory presumption under
Section 20 of PC Act can be drawn against the AO. In this regard, he relied
upon a decision reported in Khursheed Khan vs. State of AP . He thus
prayed to allow the appeal.
6a) Per contra, learned Spl.P.P. while supporting the judgment argued that
the prosecution through cogent evidence of PWs.1, 2 and 7 could establish
the demand and acceptance of bribe by the AO and therefore, the trial Court
rightly convicted him. He argued that PW1 was an utter stranger to AO and
there was no enmity for him to implicate him in a false case. Merely because
he gave complaints against some people, his evidence cannot be brushed-
aside on that ground alone. Similarly, merely because he consumed some
sleeping pills on the date of evidence, it cannot be readily inferred that he
did so to avoid giving false evidence against AO. Such a suggestion was not
given in the cross-examination. Learned Spl.P.P. argued that PW1s
evidence was trustworthy and do not suffer from any infirmities or
inconsistencies and that is why the trial Court placed reliance on it.
b) Refuting the theory of planting the bribe amount, learned Spl.P.P.
argued that the facts and evidence would show that in between the registers
in the Almyrah, apart from the bribe amount, some other amount of
Rs.1,168/- was also found inferring that the place where the two amounts
were found was a usual place to keep the amount. Since PW1 is an utter
stranger to the sub-Registrars office, there was no occasion for him to know
that place. When the bribe amount was found at the usual place means the
person who knows that place alone must have kept the amount there. This
would give an irresistible conclusion that AO who alone knows that place
must have kept the bribe amount there after accepting it from PW1 on the
date of trap. He thus argued that the circumstances would belie the theory of
planting. He further argued, it is highly impossible for a stranger like PW1
to go inside the record room where he had no business at all. He submitted
that trial Court rightly rejected the theory of planting.
c) Regarding chemical test, learned Spl.P.P. argued the two hand washes
of AO (Mos.4 and 5) were originally in pink colour but due to passage of
time they were turned into white colour. By that count alone we cannot infer
that AO did not handle the bribe amount and chemical test on his hands did
not yield positive result at the first instance. He submitted that when the
evidence of PWs.1, 2 and 7 is found trustworthy regarding acceptance of
bribe by AO, the chemical test will have no much significance.
d) Finally, learned Spl.P.P. argued that prosecution could able to
establish the demand and acceptance and therefore the trial Court rightly
drew presumption under Section 20 of PC Act and AO failed to rebut the
said presumption. He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the point for determination in
this appeal is:
Whether the judgment of the trial Court is factually and legally
sustainable?
8) POINT: The prosecution case, the evidence placed by it on record and
defence plea are all stated supra. The charges ascribed against AO are under
Sections 7 and 13(1)(d)(i) and (ii) of PC Act.
a) To prove the offence under Section 7 the prosecution shall establish
the following ingredients.
i) That the accused was a public servant or expected to be a
public servant at the time when the offence was committed.
ii) That the accused accepted or obtained or agreed to accept
or agreed to obtain illegal gratification other than the legal
remuneration as a motive or reward for doing an official favour.
b) Whereas to sustain charge under Section 13(1)(d) (i) and (ii) of PC
Act the prosecution shall establish that a public servant by corrupt or illegal
means or by abusing his position as a public servant obtains for himself or
for any other person any valuable thing or pecuniary advantage.
9) It has now to be seen whether the prosecution established the above
ingredients with cogent evidence.
a) The first ingredient, which relates to the status of the AO at the
relevant time is concerned, even as per the written statement of AO filed
during 313 Cr.P.C. examination he worked as Sub-Registrar of Kollapur
from June, 1993 to 27-09-1993. As per prosecution, the AO made first
demand for bribe on 28-07-1993 and ultimately he was trapped on
01-09-1993. Thus, it is clear that AO was public servant during the relevant
period of offence.
b) Then pendency of official favour during the relevant period of offence
prompting AO to demand bribe is concerned, Ex.P6Guarantee-cum-
Mortgage Deed executed by Zulekha Bee the mother of PW1 would show
that the same was registered on 28-07-1993 in Sub Registrar Office,
Kollapur. This document also contains the signature of AO. Then Ex.P5
receipt would show that the date of return of document was mentioned on it
as 20-08-1993. The prosecution case is that AO demanded bribe of
Rs.1,000/- for return of the original document to PW1. PW3retired DIG,
Registration and stamps while explaining the procedure for registration of
document in Sub Registrars Office has deposed that Sub-Registrar will
collect the registration fee and issue receipt under which the document can
be collected in three working days. Thus, it is clear that even after
registration of Ex.P6 the said document was lying in Sub-Registrars office,
Kollapur and as per Ex.P5receipt, the same was to be collected by PW1
on 20-08-1993. The AO being Sub Registrar of said office, it is needless to
emphasise that he was the authority to return Ex.P6 document to PW1.
Therefore, it is manifestly clear that official favour was pending with AO
during the relevant period of offence.
10) The demand and acceptance of bribe by AO is concerned, the
prosecution case mainly pivots on the evidence of PW1complainant and
supporting evidence of PW2mediator and PW7Inspector who
participated in the trap. To know the guilt of AO their evidence has to be
scrutinized.
a) According to PW1, he wanted to set up oil rotary mill. So, he
registered his application in District Industries Centre, Mahabubnagar under
SETMAH Scheme. The SBI, ADB, Kollapur agreed to provide him loan on
his furnishing guarantee and therefore on 28-07-1993 he and his mother
went to Sub Registrar Office, Kollapur for registration of mortgage deed
executed by his mother and the AO after receiving the registration fee issued
Ex.P5receipt to him and told that he would issue the document on
20-08-1993. PW1 deposed that for return of the said document AO
demanded Rs.1,000/- as bribe. PW1 further deposed that on 20-08-1993 he
could not go to Sub-Registrar office but he went on 28-08-1993 and met AO
and asked for return of his document. AO questioned him whether he
brought the demanded bribe amount for which he replied that he will adjust
the amount in three or four days stating that he was an unemployee. Then
AO curtly told him to bring the demanded amount and take the document.
PW1 further deposed that, as he was not willing to pay bribe he gave
Ex.P1complaint dated 29-08-1993 to DSP, ACB who laid trap against him
on 01-09-1993. On that day, as per the instructions of DSP, he took the
tainted bribe amount and met the AO at Sub Registrar office and showed
Ex.P5receipt and asked for the document. AO reiterated his earlier
demand and enquired whether he brought the demanded bribe amount. PW1
deposed that he affirmed and handed over the tainted currency notes and AO
received the amount with his left hand and changed it to his right hand and
went into the record room which is adjacent to his room and came out and
endorsed on Ex.P5receipt and called the attender and told him to handover
the document to him. When the attender was looking for the document, he
came out and gave pre-arranged signal to trap party members and they came
and went inside the Sub Registrar Office and caught hold the AO red-
handed. This is precisely the evidence of PW1 relating to demand and
acceptance of bribe by AO. PW1 was cross-examined at length and
suggested that he did not visit the Sub Registrar office prior to the date of
complaint and AO never demanded any bribe from him and himself and
DSP fabricated a false case against him. PW1 staunchly denied the
suggestion. The further suggestion that on the date of trap AO received only
Ex.P5receipt for issuance of document and even before that PW1 went
into the adjacent room of AO and planted money there and came out and
without waiting to receive the document he went through other door of
office hall and gave signal was also denied by PW1. PW1 emphatically
stated that there is a room adjacent to office hall of AO but he never entered
in it. Thus, he refuted the defence suggestion. A careful scrutiny of evidence
of PW1 would show that nothing tangible could be brought on record to
impeach the credibility of his evidence. Nowhere in the cross-examination it
was suggested the motive for PW1 to foist a false case against the AO.
As can be seen from the written statement of AO he joined as Sub Registrar,
Kollapur only one month prior to the trap. In such an event there can be no
reason for PW1 to nurture grudge against AO who is an utter stranger to
him. So, on a threadbare analysis, the evidence of PW1 appears to be
trustworthy. Except a slight mistake in chief examination to the effect that he
went to the Sub Registrar office for registration on 20-07-1993 instead of
28-07-1993 there were no inconsistencies or contradictions in his evidence.
In the cross-examination PW1 categorically stated that he got registered the
document on 28-07-1993 by attending himself and his mother in Sub
Registrar office on which date the AO demanded him bribe. Apart from his
evidence, Ex.P6mortgage deed and Ex.P5receipt would show that the
mortgage deed was registered on 28-07-1993 and Ex.P5receipt was issued
by AO to PW1 on 28-07-1993 mentioning therein the date of return of the
document as 20-08-1993. Further, in Ex.P6 the signature of PW1 is available
as identifying witness of his mother. So, all these would show that the date
of registration of document and date of his demand were on 28-07-1993 and
what PW1 stated in his chief was only a mistake which is of no
consequence.
b) The evidence of PW1 was corroborated on material particulars by
PW2 and PW7. PW2 is an Assistant Executive Engineer acted as one of the
mediators along with ILN Kumar (LW3). PW2 clearly deposed in his
evidence about the pre-trap and trap proceedings. Regarding trap incident he
deposed that trap party reached Kollapur at 12.30 PM and DSP reiterated his
earlier instructions to PW1 and then PW1 proceeded to Sub Registrar office
followed by trap party members and they waited outside the office and PW1
alone went inside and at about 12.45 PM PW1 came out and gave pre-
arranged signal and on receiving it they all rushed into the office and the
DSP introduced himself and others to AO and thereafter he got prepared
solution in two glass tumblers. When AO dipped his hand fingers separately,
both the solutions turned into pink colour. This witness further deposed that
then DSP asked AO whether he accepted money from PW1 and what all he
stated was incorporated in second mediators report (Ex.P4). On DSPs
further enquiry as to where he kept money, the AO led them to adjacent
room and took out two wads of amount in between two registers.
On verification by the two mediators, one wad found containing Rs.1,000/-
whose serial numbers were tallied with the numbers they noted earlier and
the other wad consisting of Rs.1,168/- in different denominations. Both the
wards were seized. MO3 is the tainted currency notes of Rs.1,000/-.
The surface of both registers where from the wads of currency notes were
recovered was subjected to chemical test and the test proved positive. All the
chemical washes were preserved under Mos.4 to 6 and two registers were
seized under MO7. Ex.P3rough sketch and Ex.P4post trap proceedings
were prepared and documents were seized under Exs.P6 to P9. This is
briefly the evidence of PW2mediator. His evidence corroborates the
evidence of PW1 to the effect that the bribe amount, which was paid by
PW1, was recovered at the instance of AO. Except giving suggestion that
AO did not lead the trap members to the record room and showed the two
wads of currency notes placed in between two registers and PW2 speaks
falsehood in that regard, nothing specific could be elicited to discredit the
evidence of PW2. It was further suggested to him that chemical test
conducted to the hands of AO did not prove positive and the solutions did
not turn into pink colour. All the suggestions were denied by PW2. PW2
further denied that he did not incorporate true explanation of AO to the
effect that he did not receive bribe amount from PW1. Thus, as can be seen
from the evidence of PW2, like PW1 he too was a stranger to AO and there
was no reason for him to speak falsehood with regard to incidents that
transpired on the date of trap.
c) Then PW7 is the Inspector, ACB who followed K.Narasing Rao DSP,
ACB and attended trap proceedings. Since K.Narasing Rao is no more,
prosecution examined PW7. This witness in corroboration of PWs.1 and 2
deposed in the similar lines. He categorically stated that AO led them to the
record room and removed the amount kept in between two registers in a
wooden Almyrah. The amounts were in two wads. One wad consisting of
Rs.1,000/- in 100 rupee notes (MO3) and another wad consisting of
Rs.1,168/- in different denominations. This witness clearly deposed that
when DSP conducted Sodium Carbonate solution test to the fingers of both
hands of AO, the colourless solutions in both glasses turned into pink colour
and similarly when DSP conducted Sodium Carbonate solution test to the
surface of registers where the tainted amount was kept, it is proved positive.
In the cross-examination he denied the suggestion that his evidence
regarding AOs disclosure that amount was kept in between two registers in
the record room is false. He denied further suggestion that his investigation
revealed that PW1 was a petition monger and black mailer by profession.
He also denied PW1 was a stock complainant to the police, ACB and CBI.
He denied the suggestion that his investigation revealed that he did not
accept any amount from PW1. He admitted that DSP did not send Mos.4, 5
and 6 for chemical analysis. However, he denied the suggestion that the
colour of the solutions was white since from the beginning. Thus, in the
cross-examination except denying the prosecution case nothing specific was
elicited to hold that a false case was fabricated against AO. Thus, a
conspectus of evidence of PWs.1, 2 and 7 would clearly show that AO has
demanded and accepted bribe of Rs.1,000/- from PW1 to do an official
favour i.e. to handover Ex.P6mortgage deed to him and prosecution could
establish these facts. Hence, the presumption under Section 20 of PC Act
will clearly follow to the effect that AO accepted the bribe as a motive to do
an official favour.
11) Now, the arguments raised by the appellant have to be discussed to
know whether defence could satisfactorily dispel the presumption under
Section 20 of PC Act and consequently the prosecution case.
a) The first argument is that PW1 is a black mailer and petition monger
and he gave complaint against SBI Branch Manager and trapped him
through CBI officials he also gave complaints against forest officials. It was
argued that on 06-06-1993 when he came to witness box he consumed some
sleeping tablets, as he might not dare enough to give false evidence against
AO. It is true that in the cross-examination of PW1 it was elicited that he
gave complaints against SBI Branch Manager and also some forest officials.
Further, the observation of trial Court in the deposition of PW1 would show
that he consumed about 20 sleeping tablets on the first day of his evidence
and immediately he was referred to hospital. From all these facts AO wants
to project PW1 as a habitual petition monger and his evidence is not
trustworthy. It must be stated that merely because PW1 gave complaints
against some officials that by itself his evidence cannot be stamped as
untrustworthy unless it is established that his previous complaints were
proved to be utter false in a court of law with an observation that he was a
petition monger. So, the testimony of PW1 cannot be viewed with coloured
glasses in the absence of proof that his previous complaints were false ones.
Sofaras the incident of his consuming tablets in the witness box is
concerned, there my be several reasons for his eccentric or desperate act but
without knowing the actual reason it cannot be dubbed as a compunction for
implicating AO in a false case. It must be noted that AO did not even give
such a suggestion to PW1. So, the otherwise trustworthy evidence of PW1
cannot be denounced on the grounds of his earlier complaints or his
consuming sleeping pills.
b) The second argument is about the impossibility of demanding and
accepting bribe before trap. It is the argument of appellant/AO that as per
Ex.P3sketch and also the oral evidence of PWs.1 and 2 the seats of AO
and his staff were located in the same hall and therefore it was highly
improbable that AO could demand and accept bribe in the presence of his
staff. The judgment would not show that such an argument was raised by the
AO before the trial Court. But however, since PW1 admitted in the cross-
examination that clerks also sit in the office hall of AO and Ex.P3rough
sketch also confirms the same, this argument entertained. This argument
though apparently sounds true but will not stand to reasoning. It must be
noted that the office of AO is a Sub Registrar office where registration of
various documents will be done every day on payment of due registration
fee. So, collection of amounts from the parties towards registration fee is
neither odd nor taboo. In this backdrop, AOs receiving bribe amount from
PW1 in the presence of his staff may not appear strange as they do not know
whether it was paid towards registration fee or bribe. In fact, in his chief
examination, PW1 clearly deposed that earlier he paid Rs.611/- towards
registration fee and AO received said amount and issued Ex.P5receipt to
him by duly endorsing on it that he would issue the document on
20-08-1993. This fact was not denied by AO. It would manifest the practice
of parties coming to Registrar Office paying amounts towards registration
fee. Therefore, this argument of AO cannot be accepted.
c) The next argument of the appellant is that the chemical test conducted
on his both hands did not yield positive result and the washes since inception
remained colourless and even during the evidence also Mos.4 to 6 remained
colourless and further the prosecution has not obtained the report from the
chemical expert showing that the chemical washes contain phenolphthalein
and Sodium Carbonate ions and therefore the prosecution failed to prove that
AO has demanded and accepted the bribe and handled the same on the date
of trap. It may be noted that Mos.4 and 5 are the sealed bottles containing
right and left hand washes of AO respectively. PW7 admitted in his cross-
examination that DSP did not refer the Mos.4 to 6 to chemical analyst to
detect phenolphthalein ions. It is true that it is a lapse on the part of IO.
However, merely due to the lapse on the part of IO, otherwise trustworthy
evidence of PW1 who emphatically stated that he paid bribe amount to AO
on his further demand cannot be shunned. It should not be forgotten that
chemical test in a trap case is only a corroborative piece of evidence to the
main evidence of the complainant. Merely because the prosecution failed to
substantiate the said corroborative evidence through chemical analysis, the
evidence of complainant need not be automatically discarded unless his
evidence too suffers inherent improbabilities and do not infuse confidence.
In this case, the evidence of PW1 is trustworthy throughout. The very same
amount which he brought and handed over to AO was found in between two
registers in the Almyrah of AOs record room. Therefore, in my view, the
non-examination of chemical analyst in proof of hand washes is not a
ground to discard the prosecution case. As rightly observed by the trial Court
the chemical test was conducted on 01-09-1993 whereas the evidence of
prosecution witnesses took place in 2003/2004. Because of such a long lapse
of time also the chances of pink colour turning into white cannot be ruled
out. Be that as it may, this aspect will not mitigate the genuinety of the
prosecution case.
d) Nextly and most importantly, it was argued by the appellant that the
bribe amount was not found on his person but it was found in between the
registers kept in Almyrah in the record room and PW1 while following his
attender to recover the document must have planted the amount. In this
regard, AO examined DWs.1 and 2 who are his staff to show that PW1 went
inside the record room on the date of trap. In the cross-examination PW1
denied the said suggestion. He admitted that there is a room adjacent to
office hall of AO but he stated that he does not know whether it was big or
small, as he never entered.
e) Coming to DW1 and DW2, they are the subordinate staff of AO.
DW1 is the Junior Assistant. He deposed that on 01-09-1993 when all the
staff were sitting in the hall and attending the work PW1 came around
11 AM to collect his document and produced a receipt before AO and AO
obtained his signature on receipt book and called Rehmanattender and
told him to give document to PW1. DW1 further stated that Rehman went
into the record room and PW1 also followed him to the record room. Soon
after collecting document from Rehman PW1 went away. He stated that
there are two ways for the people to enter into the office. Their office
consisting of three rooms and all the staff members sit in one room and all of
them can see the persons coming and going out. Then DW2Syed Rehman,
attender also deposed in similar lines stating that on 01-09-1993 PW1 came
to their office and met AO and AO instructed him to give document to PW1
which was in record room and PW1 followed him to the record room and
this witness picked up the document from record room and gave it to PW1
and while PW1 going through the document he came out and sat on his
stool.
f) As can be seen from the evidence of DWs.1 and 2 they deposed as if
PW1 went into the record room along with DW2 for collecting his
document. As already stated supra, PW1 emphatically denied his going to
the record room. On taking all the concerned facts into consideration, it can
be said that the evidence of DWs.1 and 2 and consequent theory of planting
of money are false. The evidence of PWs.2 and 7 and Ex.P4second
mediators report would show that apart from bribe amount, another wad of
currency of Rs.1,168/- was also found in between two registers (vide MO7)
in the Almyrah. As rightly argued by learned Spl.P.P., the appearance of
another wad of currency apart from the bribe amount suggests an inference
that it was a habitual place for keeping money and bribe amount was not
surreptitously kept but selectively placed there. PW1 being a stranger to Sub
Registrar office he was not expected to know the said place. On the other
hand, some one who was acquainted with that hiding place must have kept
the bribe amount like the other wad of currency. PW1 in his evidence clearly
deposed that after receiving the amount, AO went inside the record room
which is adjacent to his room and came out and then endorsed on his receipt.
So, it gives an irresistible conclusion that AO who knows the hiding place
must have kept the bribe amount in between two registers but not PW1.
This falsifies the evidence of DWs.1 and 2 that PW1 followed DW2 to
record room. Therefore, the planting theory can be safely ignored. So, at the
outset none of the grounds raised by the appellant are strong enough to
crumble the prosecution case. The AO failed to rebut the presumption under
Section 20 of PC Act. The cited decision in Kusheed Khans case (1 supra)
will not help him.
12) In the result, this Criminal Appeal is dismissed by confirming the
judgment of the trial Court in C.C.No.8 of 1994.
_________________________
U.DURGA PRASAD RAO, J
25-04-2014
which is adjacent to his room and came out and then endorsed on his receipt. So, it gives an irresistible conclusion that AO who knows the hiding place must have kept the bribe amount in between two registers but not PW1. This falsifies the evidence of DWs.1 and 2 that PW1 followed DW2 to record room. Therefore, the planting theory can be safely ignored. So, at the outset none of the grounds raised by the appellant are strong enough to crumble the prosecution case. The AO failed to rebut the presumption under Section 20 of PC Act.=
the Special
Judge for ACB cases, City Civil Court, Hyderabad whereunder he convicted
the Accused Officer (AO) for the charges under Sections 7 and 13(1)(d)(i)
and (ii) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C.
Act) and sentenced him to suffer RI for one year and pay fine of Rs.1,000/-
in default to undergo SI for three months on two counts for the offences
under Sections 7 and 13 (1)(d) of PC Act.=
whether defence could satisfactorily dispel the presumption under
Section 20 of PC Act and consequently the prosecution case.
a) The first argument is that PW1 is a black mailer and petition monger
and he gave complaint against SBI Branch Manager and trapped him
through CBI officials he also gave complaints against forest officials. It was
argued that on 06-06-1993 when he came to witness box he consumed some
sleeping tablets, as he might not dare enough to give false evidence against
AO. It is true that in the cross-examination of PW1 it was elicited that he
gave complaints against SBI Branch Manager and also some forest officials.
Further, the observation of trial Court in the deposition of PW1 would show
that he consumed about 20 sleeping tablets on the first day of his evidence
and immediately he was referred to hospital. From all these facts AO wants
to project PW1 as a habitual petition monger and his evidence is not
trustworthy. It must be stated that merely because PW1 gave complaints
against some officials that by itself his evidence cannot be stamped as
untrustworthy unless it is established that his previous complaints were
proved to be utter false in a court of law with an observation that he was a
petition monger. So, the testimony of PW1 cannot be viewed with coloured
glasses in the absence of proof that his previous complaints were false ones.
Sofaras the incident of his consuming tablets in the witness box is
concerned, there my be several reasons for his eccentric or desperate act but
without knowing the actual reason it cannot be dubbed as a compunction for
implicating AO in a false case. It must be noted that AO did not even give
such a suggestion to PW1. So, the otherwise trustworthy evidence of PW1
cannot be denounced on the grounds of his earlier complaints or his
consuming sleeping pills.
b) The second argument is about the impossibility of demanding and
accepting bribe before trap. It is the argument of appellant/AO that as per
Ex.P3sketch and also the oral evidence of PWs.1 and 2 the seats of AO
and his staff were located in the same hall and therefore it was highly
improbable that AO could demand and accept bribe in the presence of his
staff. The judgment would not show that such an argument was raised by the
AO before the trial Court. But however, since PW1 admitted in the cross-
examination that clerks also sit in the office hall of AO and Ex.P3rough
sketch also confirms the same, this argument entertained. This argument
though apparently sounds true but will not stand to reasoning. It must be
noted that the office of AO is a Sub Registrar office where registration of
various documents will be done every day on payment of due registration
fee. So, collection of amounts from the parties towards registration fee is
neither odd nor taboo. In this backdrop, AOs receiving bribe amount from
PW1 in the presence of his staff may not appear strange as they do not know
whether it was paid towards registration fee or bribe. In fact, in his chief
examination, PW1 clearly deposed that earlier he paid Rs.611/- towards
registration fee and AO received said amount and issued Ex.P5receipt to
him by duly endorsing on it that he would issue the document on
20-08-1993. This fact was not denied by AO. It would manifest the practice
of parties coming to Registrar Office paying amounts towards registration
fee. Therefore, this argument of AO cannot be accepted.
c) The next argument of the appellant is that the chemical test conducted
on his both hands did not yield positive result and the washes since inception
remained colourless and even during the evidence also Mos.4 to 6 remained
colourless and further the prosecution has not obtained the report from the
chemical expert showing that the chemical washes contain phenolphthalein
and Sodium Carbonate ions and therefore the prosecution failed to prove that
AO has demanded and accepted the bribe and handled the same on the date
of trap. It may be noted that Mos.4 and 5 are the sealed bottles containing
right and left hand washes of AO respectively. PW7 admitted in his cross-
examination that DSP did not refer the Mos.4 to 6 to chemical analyst to
detect phenolphthalein ions. It is true that it is a lapse on the part of IO.
However, merely due to the lapse on the part of IO, otherwise trustworthy
evidence of PW1 who emphatically stated that he paid bribe amount to AO
on his further demand cannot be shunned. It should not be forgotten that
chemical test in a trap case is only a corroborative piece of evidence to the
main evidence of the complainant. Merely because the prosecution failed to
substantiate the said corroborative evidence through chemical analysis, the
evidence of complainant need not be automatically discarded unless his
evidence too suffers inherent improbabilities and do not infuse confidence.
In this case, the evidence of PW1 is trustworthy throughout. The very same
amount which he brought and handed over to AO was found in between two
registers in the Almyrah of AOs record room. Therefore, in my view, the
non-examination of chemical analyst in proof of hand washes is not a
ground to discard the prosecution case. As rightly observed by the trial Court
the chemical test was conducted on 01-09-1993 whereas the evidence of
prosecution witnesses took place in 2003/2004. Because of such a long lapse
of time also the chances of pink colour turning into white cannot be ruled
out. Be that as it may, this aspect will not mitigate the genuinety of the
prosecution case.
d) Nextly and most importantly, it was argued by the appellant that the
bribe amount was not found on his person but it was found in between the
registers kept in Almyrah in the record room and PW1 while following his
attender to recover the document must have planted the amount. In this
regard, AO examined DWs.1 and 2 who are his staff to show that PW1 went
inside the record room on the date of trap. In the cross-examination PW1
denied the said suggestion. He admitted that there is a room adjacent to
office hall of AO but he stated that he does not know whether it was big or
small, as he never entered.
e) Coming to DW1 and DW2, they are the subordinate staff of AO.
DW1 is the Junior Assistant. He deposed that on 01-09-1993 when all the
staff were sitting in the hall and attending the work PW1 came around
11 AM to collect his document and produced a receipt before AO and AO
obtained his signature on receipt book and called Rehmanattender and
told him to give document to PW1. DW1 further stated that Rehman went
into the record room and PW1 also followed him to the record room. Soon
after collecting document from Rehman PW1 went away. He stated that
there are two ways for the people to enter into the office. Their office
consisting of three rooms and all the staff members sit in one room and all of
them can see the persons coming and going out. Then DW2 Syed Rehman,
attender also deposed in similar lines stating that on 01-09-1993 PW1 came
to their office and met AO and AO instructed him to give document to PW1
which was in record room and PW1 followed him to the record room and
this witness picked up the document from record room and gave it to PW1
and while PW1 going through the document he came out and sat on his
stool.
f) As can be seen from the evidence of DWs.1 and 2 they deposed as if
PW1 went into the record room along with DW2 for collecting his
document. As already stated supra, PW1 emphatically denied his going to
the record room. On taking all the concerned facts into consideration, it can
be said that the evidence of DWs.1 and 2 and consequent theory of planting
of money are false. The evidence of PWs.2 and 7 and Ex.P4second
mediators report would show that apart from bribe amount, another wad of
currency of Rs.1,168/- was also found in between two registers (vide MO7)
in the Almyrah. As rightly argued by learned Spl.P.P., the appearance of
another wad of currency apart from the bribe amount suggests an inference
that it was a habitual place for keeping money and bribe amount was not
surreptitously kept but selectively placed there. PW1 being a stranger to Sub
Registrar office he was not expected to know the said place. On the other
hand, some one who was acquainted with that hiding place must have kept
the bribe amount like the other wad of currency. PW1 in his evidence clearly
deposed that after receiving the amount, AO went inside the record room
which is adjacent to his room and came out and then endorsed on his receipt.
So, it gives an irresistible conclusion that AO who knows the hiding place
must have kept the bribe amount in between two registers but not PW1.
This falsifies the evidence of DWs.1 and 2 that PW1 followed DW2 to
record room. Therefore, the planting theory can be safely ignored. So, at the
outset none of the grounds raised by the appellant are strong enough to
crumble the prosecution case. The AO failed to rebut the presumption under
Section 20 of PC Act. The cited decision in Kusheed Khans case (1 supra)
will not help him.
12) In the result, this Criminal Appeal is dismissed by confirming the
judgment of the trial Court in C.C.No.8 of 1994.
2014(May.Part) http://judis.nic.in/judis_andhra/filename=11261
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.297 of 2006
25-04-2014
J.Raghavendra Chary (died) per LRs..Appellant
State of Andhra Pradesh Through Inspector of Police, ACB,Hyderabad Range,
Mahabubnagar Dist..Respondent
Counsel for Appellant: Sri C. Nageswara Rao
Counsel for Respondent:Sri M.B. Thimma Reddy,
Special Public Prosecutor for ACB
<Gist:
>Head Note:
?Cases referred:
1)1980 (2) ALT 1
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.297 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the
judgment dated 27.02.2006 in C.C.No.8 of 1994 passed by the Special
Judge for ACB cases, City Civil Court, Hyderabad whereunder he convicted
the Accused Officer (AO) for the charges under Sections 7 and 13(1)(d)(i)
and (ii) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C.
Act) and sentenced him to suffer RI for one year and pay fine of Rs.1,000/-
in default to undergo SI for three months on two counts for the offences
under Sections 7 and 13 (1)(d) of PC Act.
2) The factual matrix of the case, which led to file the instant appeal, can
be stated thus:
a) The A.OJ.Raghavendra Chary worked as Sub-Registrar of
Kollapur, Mahabubnagar. Khaja Moinuddin (PW1) is a resident of Kollapur
Village. He applied for a loan under SETMAH Scheme. To grant loan, the
bank insisted him to furnish security of immovable property. Therefore, he
arranged security and presented a mortgage deed executed by his mother on
28-07-1993 before the AO. Then the AO demanded an amount of Rs.1,000/-
as bribe for returning the mortgage deed after due registration.
b) PW1 not willing to pay the demanded bribe amount approached
Deputy Superintendent of Police (DSP), ACB, Hyderabad Range,
Hyderabad and lodged a written complaintEx.P1. Basing on the said
complaint a case in Cr.No.6/ADB-HR/93 was registered under Sections
7 and 11 of PC Act against the AO and trap was organised on 01-09-1993.
c) On 01-09-1993, AO again demanded and accepted the tainted amount
of Rs.1,000/- from PW1 at Sub-Registrar office and was caught red-handed
by the ACB officials. His hands were subjected to chemical test which
yielded positive result. At the instance of AO, IO recovered the bribe
amount in between the registers in wooden Almyrah in record room of Sub-
Registrar office. On completion of investigation charge sheet was laid
against AO for the offences under Sections 7, 11 and 13(2) r/w 13(1)(d) (i)
and (ii) of PC Act. On appearance of AO, the trial Court framed charges
under Sections 7 and 13 (1)(d)(i) and (ii) r/w 13(2) of PC Act and trial was
conducted.
d) During trial PWs.1 to 7 were examined and Exs.P1 to P11 and MOs.
1 to 8 were exhibited on behalf of prosecution. DWs.1 and 2 were examined
on behalf of defence.
e) The defence plea is one of total denial of prosecution case. In the
written statement filed by AO while admitting that he worked as Sub-
Registrar, Kollapur during the relevant period and that Smt.Julekha Bee
executed a mortgage deed on 28-07-1993 and registered in the Sub-
Registrar Office, Kollapur, he denied demanding any bribe for return of the
mortgage deed to PW1. AO pleaded that on 01-09-1993 at about 12.30 PM
he handed over the document to PW1 and he left the AOs room from
record room side and afterwards the trap party came and conducted the test
on his hands, but there was no change of colour. They obtained the
signatures on the panchanama without allowing him to verify the contents.
AO further pleaded that he never demanded and received the bribe amount
from PW1 on 01-09-1993 and that he came to know that PW1 is a litigant
and black mailer and even in the Court he consumed tablets on 06-06-2003
and he was sent to the hospital and later on he was examined on 02-09-1993
which itself shows the mental condition of PW1 and his un-preparedness to
give evidence against AO, as it was a foisted case. Besides the written
statement, in the cross-examination he suggested that the bribe amount was
planted by him. Thus, as stated supra, his defence plea is one of total denial
of prosecution case.
f) The trial Court on appreciation of oral and documentary evidence on
record found the AO guilty of the charges levelled against him and
accordingly sentenced him as stated supra.
3) Hence, the appeal by the accused. Pending appeal the appellant died
and as per order dated 18-03-2013 in Crl.A.M.P.No.136 of 2013 the wife of
AO viz. J.Seeta was permitted to come on record to prosecute the appeal.
4) Heard arguments of Sri C.Nageswara Rao, learned counsel for
appellant and Sri M.B.Thimma Reddy, learned Special Public Prosecutor
(Spl.P.P.) for ACB cases.
5a) Impugning the judgment, learned counsel for appellant firstly argued
that he never demanded or accepted any bribe from PW1 and false case was
foisted against him. PW1 is a black mailer and petition monger and in fact,
he gave complaint against SBI Branch Manager and trapped him through
CBI officials and further he gave complaints against forest officials. Thus,
he is a habitual petition monger. On the first day of evidence i.e. 06-06-2003
when he came to witness box he consumed some sleeping tablets as he was
not dare enough to give false evidence against AO. In view of these
circumstances his evidence may not be believed.
b) Secondly, learned counsel argued that on the date of trap the AO did
not demand and accept the bribe amount from PW1. As per Ex.P3sketch
the seats of AO and his other staff are located in the same hall and before
trap they were all working in their respective seats. In such circumstances, it
is highly improbable, nay, impossible for AO to accept bribe from PW1 in
the presence of his staff. Further, the chemical test conducted on both hands
of AO in fact did not yield any positive result. The washes remained white.
The IO did not send the chemical washes to the Forensic Science Laboratory
(FSL) and even assuming he did so, prosecution did not obtain report from
FSL and file before the Court and he did not examine the chemical expert.
So, practically there is no plausible evidence to show that AO handled the
tainted bribe amount. Apart from it, the tainted money was admittedly not
recovered from the person of the AO which indicates that he did not demand
and accept the bribe amount. The tainted amount was found in Almyrah in
record room as it was planted by PW1 while going into the record room.
Learned counsel thus argued that the facts and evidence would show that
AO did not demand and accept the bribe amount but it was planted by PW1
to implicate him in the case.
c) Finally, learned counsel argued when prosecution failed to prove
demand and acceptance by cogent evidence, no statutory presumption under
Section 20 of PC Act can be drawn against the AO. In this regard, he relied
upon a decision reported in Khursheed Khan vs. State of AP . He thus
prayed to allow the appeal.
6a) Per contra, learned Spl.P.P. while supporting the judgment argued that
the prosecution through cogent evidence of PWs.1, 2 and 7 could establish
the demand and acceptance of bribe by the AO and therefore, the trial Court
rightly convicted him. He argued that PW1 was an utter stranger to AO and
there was no enmity for him to implicate him in a false case. Merely because
he gave complaints against some people, his evidence cannot be brushed-
aside on that ground alone. Similarly, merely because he consumed some
sleeping pills on the date of evidence, it cannot be readily inferred that he
did so to avoid giving false evidence against AO. Such a suggestion was not
given in the cross-examination. Learned Spl.P.P. argued that PW1s
evidence was trustworthy and do not suffer from any infirmities or
inconsistencies and that is why the trial Court placed reliance on it.
b) Refuting the theory of planting the bribe amount, learned Spl.P.P.
argued that the facts and evidence would show that in between the registers
in the Almyrah, apart from the bribe amount, some other amount of
Rs.1,168/- was also found inferring that the place where the two amounts
were found was a usual place to keep the amount. Since PW1 is an utter
stranger to the sub-Registrars office, there was no occasion for him to know
that place. When the bribe amount was found at the usual place means the
person who knows that place alone must have kept the amount there. This
would give an irresistible conclusion that AO who alone knows that place
must have kept the bribe amount there after accepting it from PW1 on the
date of trap. He thus argued that the circumstances would belie the theory of
planting. He further argued, it is highly impossible for a stranger like PW1
to go inside the record room where he had no business at all. He submitted
that trial Court rightly rejected the theory of planting.
c) Regarding chemical test, learned Spl.P.P. argued the two hand washes
of AO (Mos.4 and 5) were originally in pink colour but due to passage of
time they were turned into white colour. By that count alone we cannot infer
that AO did not handle the bribe amount and chemical test on his hands did
not yield positive result at the first instance. He submitted that when the
evidence of PWs.1, 2 and 7 is found trustworthy regarding acceptance of
bribe by AO, the chemical test will have no much significance.
d) Finally, learned Spl.P.P. argued that prosecution could able to
establish the demand and acceptance and therefore the trial Court rightly
drew presumption under Section 20 of PC Act and AO failed to rebut the
said presumption. He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the point for determination in
this appeal is:
Whether the judgment of the trial Court is factually and legally
sustainable?
8) POINT: The prosecution case, the evidence placed by it on record and
defence plea are all stated supra. The charges ascribed against AO are under
Sections 7 and 13(1)(d)(i) and (ii) of PC Act.
a) To prove the offence under Section 7 the prosecution shall establish
the following ingredients.
i) That the accused was a public servant or expected to be a
public servant at the time when the offence was committed.
ii) That the accused accepted or obtained or agreed to accept
or agreed to obtain illegal gratification other than the legal
remuneration as a motive or reward for doing an official favour.
b) Whereas to sustain charge under Section 13(1)(d) (i) and (ii) of PC
Act the prosecution shall establish that a public servant by corrupt or illegal
means or by abusing his position as a public servant obtains for himself or
for any other person any valuable thing or pecuniary advantage.
9) It has now to be seen whether the prosecution established the above
ingredients with cogent evidence.
a) The first ingredient, which relates to the status of the AO at the
relevant time is concerned, even as per the written statement of AO filed
during 313 Cr.P.C. examination he worked as Sub-Registrar of Kollapur
from June, 1993 to 27-09-1993. As per prosecution, the AO made first
demand for bribe on 28-07-1993 and ultimately he was trapped on
01-09-1993. Thus, it is clear that AO was public servant during the relevant
period of offence.
b) Then pendency of official favour during the relevant period of offence
prompting AO to demand bribe is concerned, Ex.P6Guarantee-cum-
Mortgage Deed executed by Zulekha Bee the mother of PW1 would show
that the same was registered on 28-07-1993 in Sub Registrar Office,
Kollapur. This document also contains the signature of AO. Then Ex.P5
receipt would show that the date of return of document was mentioned on it
as 20-08-1993. The prosecution case is that AO demanded bribe of
Rs.1,000/- for return of the original document to PW1. PW3retired DIG,
Registration and stamps while explaining the procedure for registration of
document in Sub Registrars Office has deposed that Sub-Registrar will
collect the registration fee and issue receipt under which the document can
be collected in three working days. Thus, it is clear that even after
registration of Ex.P6 the said document was lying in Sub-Registrars office,
Kollapur and as per Ex.P5receipt, the same was to be collected by PW1
on 20-08-1993. The AO being Sub Registrar of said office, it is needless to
emphasise that he was the authority to return Ex.P6 document to PW1.
Therefore, it is manifestly clear that official favour was pending with AO
during the relevant period of offence.
10) The demand and acceptance of bribe by AO is concerned, the
prosecution case mainly pivots on the evidence of PW1complainant and
supporting evidence of PW2mediator and PW7Inspector who
participated in the trap. To know the guilt of AO their evidence has to be
scrutinized.
a) According to PW1, he wanted to set up oil rotary mill. So, he
registered his application in District Industries Centre, Mahabubnagar under
SETMAH Scheme. The SBI, ADB, Kollapur agreed to provide him loan on
his furnishing guarantee and therefore on 28-07-1993 he and his mother
went to Sub Registrar Office, Kollapur for registration of mortgage deed
executed by his mother and the AO after receiving the registration fee issued
Ex.P5receipt to him and told that he would issue the document on
20-08-1993. PW1 deposed that for return of the said document AO
demanded Rs.1,000/- as bribe. PW1 further deposed that on 20-08-1993 he
could not go to Sub-Registrar office but he went on 28-08-1993 and met AO
and asked for return of his document. AO questioned him whether he
brought the demanded bribe amount for which he replied that he will adjust
the amount in three or four days stating that he was an unemployee. Then
AO curtly told him to bring the demanded amount and take the document.
PW1 further deposed that, as he was not willing to pay bribe he gave
Ex.P1complaint dated 29-08-1993 to DSP, ACB who laid trap against him
on 01-09-1993. On that day, as per the instructions of DSP, he took the
tainted bribe amount and met the AO at Sub Registrar office and showed
Ex.P5receipt and asked for the document. AO reiterated his earlier
demand and enquired whether he brought the demanded bribe amount. PW1
deposed that he affirmed and handed over the tainted currency notes and AO
received the amount with his left hand and changed it to his right hand and
went into the record room which is adjacent to his room and came out and
endorsed on Ex.P5receipt and called the attender and told him to handover
the document to him. When the attender was looking for the document, he
came out and gave pre-arranged signal to trap party members and they came
and went inside the Sub Registrar Office and caught hold the AO red-
handed. This is precisely the evidence of PW1 relating to demand and
acceptance of bribe by AO. PW1 was cross-examined at length and
suggested that he did not visit the Sub Registrar office prior to the date of
complaint and AO never demanded any bribe from him and himself and
DSP fabricated a false case against him. PW1 staunchly denied the
suggestion. The further suggestion that on the date of trap AO received only
Ex.P5receipt for issuance of document and even before that PW1 went
into the adjacent room of AO and planted money there and came out and
without waiting to receive the document he went through other door of
office hall and gave signal was also denied by PW1. PW1 emphatically
stated that there is a room adjacent to office hall of AO but he never entered
in it. Thus, he refuted the defence suggestion. A careful scrutiny of evidence
of PW1 would show that nothing tangible could be brought on record to
impeach the credibility of his evidence. Nowhere in the cross-examination it
was suggested the motive for PW1 to foist a false case against the AO.
As can be seen from the written statement of AO he joined as Sub Registrar,
Kollapur only one month prior to the trap. In such an event there can be no
reason for PW1 to nurture grudge against AO who is an utter stranger to
him. So, on a threadbare analysis, the evidence of PW1 appears to be
trustworthy. Except a slight mistake in chief examination to the effect that he
went to the Sub Registrar office for registration on 20-07-1993 instead of
28-07-1993 there were no inconsistencies or contradictions in his evidence.
In the cross-examination PW1 categorically stated that he got registered the
document on 28-07-1993 by attending himself and his mother in Sub
Registrar office on which date the AO demanded him bribe. Apart from his
evidence, Ex.P6mortgage deed and Ex.P5receipt would show that the
mortgage deed was registered on 28-07-1993 and Ex.P5receipt was issued
by AO to PW1 on 28-07-1993 mentioning therein the date of return of the
document as 20-08-1993. Further, in Ex.P6 the signature of PW1 is available
as identifying witness of his mother. So, all these would show that the date
of registration of document and date of his demand were on 28-07-1993 and
what PW1 stated in his chief was only a mistake which is of no
consequence.
b) The evidence of PW1 was corroborated on material particulars by
PW2 and PW7. PW2 is an Assistant Executive Engineer acted as one of the
mediators along with ILN Kumar (LW3). PW2 clearly deposed in his
evidence about the pre-trap and trap proceedings. Regarding trap incident he
deposed that trap party reached Kollapur at 12.30 PM and DSP reiterated his
earlier instructions to PW1 and then PW1 proceeded to Sub Registrar office
followed by trap party members and they waited outside the office and PW1
alone went inside and at about 12.45 PM PW1 came out and gave pre-
arranged signal and on receiving it they all rushed into the office and the
DSP introduced himself and others to AO and thereafter he got prepared
solution in two glass tumblers. When AO dipped his hand fingers separately,
both the solutions turned into pink colour. This witness further deposed that
then DSP asked AO whether he accepted money from PW1 and what all he
stated was incorporated in second mediators report (Ex.P4). On DSPs
further enquiry as to where he kept money, the AO led them to adjacent
room and took out two wads of amount in between two registers.
On verification by the two mediators, one wad found containing Rs.1,000/-
whose serial numbers were tallied with the numbers they noted earlier and
the other wad consisting of Rs.1,168/- in different denominations. Both the
wards were seized. MO3 is the tainted currency notes of Rs.1,000/-.
The surface of both registers where from the wads of currency notes were
recovered was subjected to chemical test and the test proved positive. All the
chemical washes were preserved under Mos.4 to 6 and two registers were
seized under MO7. Ex.P3rough sketch and Ex.P4post trap proceedings
were prepared and documents were seized under Exs.P6 to P9. This is
briefly the evidence of PW2mediator. His evidence corroborates the
evidence of PW1 to the effect that the bribe amount, which was paid by
PW1, was recovered at the instance of AO. Except giving suggestion that
AO did not lead the trap members to the record room and showed the two
wads of currency notes placed in between two registers and PW2 speaks
falsehood in that regard, nothing specific could be elicited to discredit the
evidence of PW2. It was further suggested to him that chemical test
conducted to the hands of AO did not prove positive and the solutions did
not turn into pink colour. All the suggestions were denied by PW2. PW2
further denied that he did not incorporate true explanation of AO to the
effect that he did not receive bribe amount from PW1. Thus, as can be seen
from the evidence of PW2, like PW1 he too was a stranger to AO and there
was no reason for him to speak falsehood with regard to incidents that
transpired on the date of trap.
c) Then PW7 is the Inspector, ACB who followed K.Narasing Rao DSP,
ACB and attended trap proceedings. Since K.Narasing Rao is no more,
prosecution examined PW7. This witness in corroboration of PWs.1 and 2
deposed in the similar lines. He categorically stated that AO led them to the
record room and removed the amount kept in between two registers in a
wooden Almyrah. The amounts were in two wads. One wad consisting of
Rs.1,000/- in 100 rupee notes (MO3) and another wad consisting of
Rs.1,168/- in different denominations. This witness clearly deposed that
when DSP conducted Sodium Carbonate solution test to the fingers of both
hands of AO, the colourless solutions in both glasses turned into pink colour
and similarly when DSP conducted Sodium Carbonate solution test to the
surface of registers where the tainted amount was kept, it is proved positive.
In the cross-examination he denied the suggestion that his evidence
regarding AOs disclosure that amount was kept in between two registers in
the record room is false. He denied further suggestion that his investigation
revealed that PW1 was a petition monger and black mailer by profession.
He also denied PW1 was a stock complainant to the police, ACB and CBI.
He denied the suggestion that his investigation revealed that he did not
accept any amount from PW1. He admitted that DSP did not send Mos.4, 5
and 6 for chemical analysis. However, he denied the suggestion that the
colour of the solutions was white since from the beginning. Thus, in the
cross-examination except denying the prosecution case nothing specific was
elicited to hold that a false case was fabricated against AO. Thus, a
conspectus of evidence of PWs.1, 2 and 7 would clearly show that AO has
demanded and accepted bribe of Rs.1,000/- from PW1 to do an official
favour i.e. to handover Ex.P6mortgage deed to him and prosecution could
establish these facts. Hence, the presumption under Section 20 of PC Act
will clearly follow to the effect that AO accepted the bribe as a motive to do
an official favour.
11) Now, the arguments raised by the appellant have to be discussed to
know whether defence could satisfactorily dispel the presumption under
Section 20 of PC Act and consequently the prosecution case.
a) The first argument is that PW1 is a black mailer and petition monger
and he gave complaint against SBI Branch Manager and trapped him
through CBI officials he also gave complaints against forest officials. It was
argued that on 06-06-1993 when he came to witness box he consumed some
sleeping tablets, as he might not dare enough to give false evidence against
AO. It is true that in the cross-examination of PW1 it was elicited that he
gave complaints against SBI Branch Manager and also some forest officials.
Further, the observation of trial Court in the deposition of PW1 would show
that he consumed about 20 sleeping tablets on the first day of his evidence
and immediately he was referred to hospital. From all these facts AO wants
to project PW1 as a habitual petition monger and his evidence is not
trustworthy. It must be stated that merely because PW1 gave complaints
against some officials that by itself his evidence cannot be stamped as
untrustworthy unless it is established that his previous complaints were
proved to be utter false in a court of law with an observation that he was a
petition monger. So, the testimony of PW1 cannot be viewed with coloured
glasses in the absence of proof that his previous complaints were false ones.
Sofaras the incident of his consuming tablets in the witness box is
concerned, there my be several reasons for his eccentric or desperate act but
without knowing the actual reason it cannot be dubbed as a compunction for
implicating AO in a false case. It must be noted that AO did not even give
such a suggestion to PW1. So, the otherwise trustworthy evidence of PW1
cannot be denounced on the grounds of his earlier complaints or his
consuming sleeping pills.
b) The second argument is about the impossibility of demanding and
accepting bribe before trap. It is the argument of appellant/AO that as per
Ex.P3sketch and also the oral evidence of PWs.1 and 2 the seats of AO
and his staff were located in the same hall and therefore it was highly
improbable that AO could demand and accept bribe in the presence of his
staff. The judgment would not show that such an argument was raised by the
AO before the trial Court. But however, since PW1 admitted in the cross-
examination that clerks also sit in the office hall of AO and Ex.P3rough
sketch also confirms the same, this argument entertained. This argument
though apparently sounds true but will not stand to reasoning. It must be
noted that the office of AO is a Sub Registrar office where registration of
various documents will be done every day on payment of due registration
fee. So, collection of amounts from the parties towards registration fee is
neither odd nor taboo. In this backdrop, AOs receiving bribe amount from
PW1 in the presence of his staff may not appear strange as they do not know
whether it was paid towards registration fee or bribe. In fact, in his chief
examination, PW1 clearly deposed that earlier he paid Rs.611/- towards
registration fee and AO received said amount and issued Ex.P5receipt to
him by duly endorsing on it that he would issue the document on
20-08-1993. This fact was not denied by AO. It would manifest the practice
of parties coming to Registrar Office paying amounts towards registration
fee. Therefore, this argument of AO cannot be accepted.
c) The next argument of the appellant is that the chemical test conducted
on his both hands did not yield positive result and the washes since inception
remained colourless and even during the evidence also Mos.4 to 6 remained
colourless and further the prosecution has not obtained the report from the
chemical expert showing that the chemical washes contain phenolphthalein
and Sodium Carbonate ions and therefore the prosecution failed to prove that
AO has demanded and accepted the bribe and handled the same on the date
of trap. It may be noted that Mos.4 and 5 are the sealed bottles containing
right and left hand washes of AO respectively. PW7 admitted in his cross-
examination that DSP did not refer the Mos.4 to 6 to chemical analyst to
detect phenolphthalein ions. It is true that it is a lapse on the part of IO.
However, merely due to the lapse on the part of IO, otherwise trustworthy
evidence of PW1 who emphatically stated that he paid bribe amount to AO
on his further demand cannot be shunned. It should not be forgotten that
chemical test in a trap case is only a corroborative piece of evidence to the
main evidence of the complainant. Merely because the prosecution failed to
substantiate the said corroborative evidence through chemical analysis, the
evidence of complainant need not be automatically discarded unless his
evidence too suffers inherent improbabilities and do not infuse confidence.
In this case, the evidence of PW1 is trustworthy throughout. The very same
amount which he brought and handed over to AO was found in between two
registers in the Almyrah of AOs record room. Therefore, in my view, the
non-examination of chemical analyst in proof of hand washes is not a
ground to discard the prosecution case. As rightly observed by the trial Court
the chemical test was conducted on 01-09-1993 whereas the evidence of
prosecution witnesses took place in 2003/2004. Because of such a long lapse
of time also the chances of pink colour turning into white cannot be ruled
out. Be that as it may, this aspect will not mitigate the genuinety of the
prosecution case.
d) Nextly and most importantly, it was argued by the appellant that the
bribe amount was not found on his person but it was found in between the
registers kept in Almyrah in the record room and PW1 while following his
attender to recover the document must have planted the amount. In this
regard, AO examined DWs.1 and 2 who are his staff to show that PW1 went
inside the record room on the date of trap. In the cross-examination PW1
denied the said suggestion. He admitted that there is a room adjacent to
office hall of AO but he stated that he does not know whether it was big or
small, as he never entered.
e) Coming to DW1 and DW2, they are the subordinate staff of AO.
DW1 is the Junior Assistant. He deposed that on 01-09-1993 when all the
staff were sitting in the hall and attending the work PW1 came around
11 AM to collect his document and produced a receipt before AO and AO
obtained his signature on receipt book and called Rehmanattender and
told him to give document to PW1. DW1 further stated that Rehman went
into the record room and PW1 also followed him to the record room. Soon
after collecting document from Rehman PW1 went away. He stated that
there are two ways for the people to enter into the office. Their office
consisting of three rooms and all the staff members sit in one room and all of
them can see the persons coming and going out. Then DW2Syed Rehman,
attender also deposed in similar lines stating that on 01-09-1993 PW1 came
to their office and met AO and AO instructed him to give document to PW1
which was in record room and PW1 followed him to the record room and
this witness picked up the document from record room and gave it to PW1
and while PW1 going through the document he came out and sat on his
stool.
f) As can be seen from the evidence of DWs.1 and 2 they deposed as if
PW1 went into the record room along with DW2 for collecting his
document. As already stated supra, PW1 emphatically denied his going to
the record room. On taking all the concerned facts into consideration, it can
be said that the evidence of DWs.1 and 2 and consequent theory of planting
of money are false. The evidence of PWs.2 and 7 and Ex.P4second
mediators report would show that apart from bribe amount, another wad of
currency of Rs.1,168/- was also found in between two registers (vide MO7)
in the Almyrah. As rightly argued by learned Spl.P.P., the appearance of
another wad of currency apart from the bribe amount suggests an inference
that it was a habitual place for keeping money and bribe amount was not
surreptitously kept but selectively placed there. PW1 being a stranger to Sub
Registrar office he was not expected to know the said place. On the other
hand, some one who was acquainted with that hiding place must have kept
the bribe amount like the other wad of currency. PW1 in his evidence clearly
deposed that after receiving the amount, AO went inside the record room
which is adjacent to his room and came out and then endorsed on his receipt.
So, it gives an irresistible conclusion that AO who knows the hiding place
must have kept the bribe amount in between two registers but not PW1.
This falsifies the evidence of DWs.1 and 2 that PW1 followed DW2 to
record room. Therefore, the planting theory can be safely ignored. So, at the
outset none of the grounds raised by the appellant are strong enough to
crumble the prosecution case. The AO failed to rebut the presumption under
Section 20 of PC Act. The cited decision in Kusheed Khans case (1 supra)
will not help him.
12) In the result, this Criminal Appeal is dismissed by confirming the
judgment of the trial Court in C.C.No.8 of 1994.
_________________________
U.DURGA PRASAD RAO, J
25-04-2014
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.