the TLO
registered FIR without conducting any preliminary enquiry because the
report was lodged on 12.11.2000 which was a Sunday and trap was arranged
on the very next day i.e. 13.11.2000 and as Ex.P1 was lodged on Sunday,
there was no possibility for conducting enquiry with regard to antecedents of
AO. This argument is untenable. Ex.P1 was received by DSP, ACB on
12.11.2000 at 10 AM, as per his endorsement on it. In Ex.P14FIR it was
mentioned that after preliminary investigation the FIR was registered and
investigation was taken up on 13.11.2000. PW11 in his evidence clearly
deposed that he detailed all the facts to the Inspector to verify the contents
of
the complaint and to verify the antecedents of the complainant and
reputation of AO and Inspector informed him after verification that PW11
was not ill disposed towards AO and reputation of AO was bad and having
been satisfied and after contacting Head Office over phone and obtaining
permission, he registered FIR. He denied the suggestion that he did not make
any preliminary enquiry before registering FIR. It should be noted that
preliminary enquiry is a sort of discreet enquiry which the ACB police will
do through their secret source. Merely because 12.11.2000 happened to be
Sunday it cannot be inferred that no information about the AO and
complainant could be gathered. Hence, this argument does not stand to
reasoning.
In view of the above discussion, it must be held that the judgment of
the trial Court does not suffer the vices of perverse appreciation of facts and
evidence to differ with.
In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court in C.C.No.26 of 2001.
Consequently, appellant/AO is directed to surrender before the trial Court on
or before 25.06.2015 and on such surrender, the trial Court shall commit him
to jail for serving sentence.
As a sequel, miscellaneous applications pending, if ay, shall stand
closed.
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.405 of 2006
01-06-2015
J.V. Ramana Murthy..... Appellant
The State of A.P,Rep. by its Spl. Public Prosecutor,High Court of A.P,
Hyderabad.. Respondent
Counsel for Appellant : Sri G. Surapu Naidu
Counsel for Respondent : Sri Ghani A Musa
Special Public Prosecutor for ACB
<Gist:
>Head Note:
?Cases referred:
1) (2013) 3 SCC 721
2) (2002) 10 SCC 371
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.405 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the Accused Officer (AO)
aggrieved by the judgment dated 13.03.2006 in C.C.No.26 of 2001 passed
by learned Additional Special Judge for SPE & ACB Cases, City Civil
Court, Hyderabad convicting him for the offences under Sections 7 and
13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C
Act).
2) The factual matrix of the case is thus:
a) AOJ.V.Ramana Murthy worked as Junior Assistant in the office of
General Manager (PW10), District Industries Centre (for short DIC),
Kurnool from 14.08.1998 to 13.11.2000 and during relevant time he was the
seat clerk looking after applications under PMRY. According to
prosecution, B.Ramakrishnudu (PW1) who is doing business in Home needs
at Nandyal made an application to PW10 on 02.10.2000 for sanction of loan
under PMRY scheme for developing his business. While so, on 28.10.2000,
PW1 went to DIC, Kurnool and approached AO to enquire about his loan
application. At that time, AO informed that PW1s application was received
and informed that willingness letter from any Bank of Nandyal has to be
obtained in favour of Industrial Promotion Officer to advance the loan. So
saying, AO allegedly demanded an amount of Rs.1,000/- for doing official
favour and after negotiation reduced it to Rs.700/- and informed that unless
he paid the bribe amount his loan application would not be processed.
b) Again, on 06.11.2000, when the complainant approached AO along
with willingness letter issued by Vysya Bank Manager, he refused to receive
the letter unless bribe amount was paid. PW1 again met AO on 08.11.2000
and on his demand paid Rs.300/- and handed over the letter issued by the
bank. The AO while receiving the bank letter and bribe amount of Rs.300/-,
demanded Rs.4,000/- for getting sanction of loan of Rs.1 lakh. On persistent
request of PW1, AO reduced the amount to Rs.2,000/- and instructed to pay
the said amount on or before 13.11.2000 otherwise his loan application
would not be processed.
c) Unwilling to pay the bribe amount, PW1 lodged a complaint with
PW11the DSP, ACB, Kurnool on 12.11.2000, who registered the same as
case in Cr.No.10/ACB-KUR/2000 under Section 7 of PC Act on 13.11.2000
and took up investigation and successfully laid trap on AO by following the
procedure. After completion of investigation, PW12the Inspector of
Police, ACB, Kurnool laid charge sheet against AO under Section 7 and
13(1)(d) r/w 13(2) of PC Act.
d) During trial, PWs.1 to 12 were examined and Exs.P1 to P14 were
marked on behalf of prosecution. D.W.1 was examined and Exs.D1 and D5
were marked on behalf of defence.
e) The trial Court on appreciation of oral and documentary evidence
found the AO guilty of the charges under Sections 7, 13(1) (d) r/w 13(2) of
P.C. Act, convicted and sentenced him to undergo R.I for a period of one
year and to pay a fine of Rs.1,000/- and in default to suffer SI for three
months on two counts. Both the sentences were directed to run
concurrently.
Hence, the appeal by AO.
3) Heard arguments of Sri G.Surapu Naidu, learned counsel for
appellant/AO and Sri Ghani A. Musa, learned Special Public Prosecutor
(Spl.P.P.) for ACB cases.
4) The point for determination in this appeal is:
Whether the conviction and sentence passed by the trial Court are factually
and legally sustainable?
5) POINT: In the instant case, the admitted facts would show that the
accused has accepted Rs.2,000/- from PW1 just before trap and it is a further
admitted fact that what he received was not a legal remuneration, in the
sense that the said amount was not required to be paid by PW1 to AO in the
form of fees or deposit to enable him to secure the loan. Prosecution through
the evidence of PW1 could establish that the said amount was paid on
demand by AO. In view of this, the mandatory presumption under Section
20 of PC Act follows to the effect that the AO has accepted the said amount
as a motive or reward for doing an official favour. Therefore, in the instant
case, the burden is on the AO to rebut the presumption.
a) In this regard, learned counsel for appellant/AO cited the decisions to
the effect that accused can discharge his burden by showing preponderance
of probabilities. In the decision reported in K.S.Panduranga v. State of
Karnataka the Apex Court observed thus:
39. Keeping in view that the demand and acceptance of the amount as
illegal gratification is a condition precedent for constituting an offence
under the Act, it is to be noted that there is a statutory presumption under
Section 20 of the Act which can be dislodged by the accused by bringing on
record some evidence, either direct or circumstantial, that money was
accepted other than for the motive or the reward as stipulated under
Section 7 of the Act. When some explanation is offered, the court is obliged
to consider the explanation under Section 20 of the Act and the
consideration of the explanation has to be on the touchstone of
preponderance of probability. It is not to be proven beyond all reasonable
doubt. In the case at hand, we are disposed to think that the explanation
offered by the accused does not deserve any acceptance and, accordingly,
we find that the finding recorded on that score by the learned trial Judge and
the stamp of approval given to the same by the High Court cannot be
faulted.
b) In Punjabrao v. State of Maharashtra also the Apex Court held in
similar lines as follows:
3.We have examined the judgment of the learned Special Judge as well as
that of the High Court. 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
c) Thus, the precedential jurisprudence laid down by the Apex
Court would show that the accused can successfully rebut the
presumption by showing preponderance of probabilities and not
necessarily by rigid proof. Hence, now the point is whether the AO could
discharge his burden to the satisfaction of the Court or not.
6) AO in his attempt to rebut the presumption put forth the following
arguments.
a) Firstly, he never demanded any bribe from PW1 and in fact, on
28.10.2000, 06.11.2000 and 08.11.2000 PW1 did not meet him at all and
he did not demand bribe or receive Rs.300/- from him on 08.11.2000 and
further, there was no occasion for him to demand bribe since by the date
of trap no work relating to PW1 was pending with him as he already
prepared the sponsor letter in triplicate under Exs.P10 and P12 on
10.11.2000 itself and was waiting for the signatures of Deputy Director
(PW5) who was on leave from 10.11.2000 to 13.11.2000.
b) Secondly, on the date of trap i.e. 13.11.2000 also he did not
demand any bribe from PW1, but PW1 came to his office and gave
Rs.2,000/- out of Rs.2,500/- as part of membership fee payable by him for
Southern Wonder World Resorts Limited under Ex.D1application and
he promised to bring the balance amount of Rs.500/- along with
photograph and went away and got him trapped in a false case by dubbing
the amount given by him as bribe.
c) Thirdly, it is argued that PW1 on the instructions of his maternal
uncleChalapathi implicated him in the false case.
d) Fourthly, it is argued that TLO registered a case and laid a false
trap without conducting preliminary enquiry, which is mandatory.
7) In a trap case, the prosecution shall by cogent evidence establish
demand and acceptance of bribe to sustain a charge under Section 7 of PC
Act. In the instant case, for proof of these two vital ingredients there was
no direct independent evidence except the evidence of PW1. So, in the
considered view of this Court, the veracity of his evidence has to be
scrutinized before analysing the arguments raised by AO.
a) PW1 is a resident of Nandyal and during the relevant period of
offence he was unemployed and doing business in Home needs. In order
to improve his business, he put up Ex.P2application to DIC office,
Kurnool for loan under PMRY scheme. His application was received in
DIC office on 03.10.2000. When there was no information for about three
weeks, he went to DIC office on 28.10.2000 to enquire about his
applications. He was informed that AO was the concerned clerk looking
after PMRY applications. When he met AO, he informed that his
application was received and would be fed into computer and asked him
to obtain a willingness letter from any bank at Nandyal agreeing to
provide him loan and at that time, AO allegedly demanded Rs.1,000/- as
bribe. When PW1 expressed his inability, he reduced the amount to
Rs.700/-. The further case of PW1 is that on 03.11.2000, he obtained
willingness letter from Vysya Bank, Nandyal and on 06.11.2000 he went
and met the AO. He enquired whether he brought the demanded amount,
but PW1 replied that he could not secure the amount. AO refused to
receive the letter and instructed him to bring the letter along with
demanded money. Having no other go, PW1 returned and again went to
DIC office on 08.11.2000 and met AO and gave only Rs.300/- along with
willingness letter. The AO received the letter and amount and informed
that PW1 would likely to get Rs.1 lakh as loan and demanded Rs.4,000/-
as bribe for processing his application and sending the sponsoring letter to
the bank. On the request of PW1, AO reduced the amount to Rs.2,000/-
and instructed him to bring the said amount by coming Monday i.e.
13.11.2000 or otherwise his work would not be done. Unwilling to pay
bribe, PW1 gave Ex.P1complaint to PW11TLO, who registered FIR
and laid trap on AO on 13.11.2000 on which date, as per his instructions
PW1 approached DIC office and paid the tainted amount to AO on his
further demand and came out and gave pre-arranged signal to trap party
who rushed and caught AO red handed.
8) This is precisely the case of PW1. Coming to veracity of his
evidence, the facts and evidence would show that PW1 was a resident of
Nandyal and he had no prior acquaintance much less enmity with AO to
nurture grudge against him. The defence version is that at the instance of
his uncleChalapathi PW1 foisted a false case against him. In this
regard, in the cross-examination, PW1 stated thus:
I have an aunt in Kurnool, where I used to stay whenever I visit from
Nandyal. The name of the husband of the said aunt is Sri Chalapathi,
who is my maternal uncle. The said Chalapathi is Sub-Inspector
Police. It is not true to suggest he worked earlier in ACB Kurnool
range. I have married his eldest brothers daughter and I am not aware
whether he worked as Head Constable in ACB earlier to it. The said
Chalapathi is in fact my material uncle.
He denied the suggestion that Chalapathi was behind the complainant and at
his instance to help the ACB and with the money provided by Chalapathi, he
acted as tool in the hands of ACB and implicated AO in a false case.
a) Similar suggestions were put to PW11TLO also. PW11 stated thus:
It is not true to suggest that at that time Sri Chalapathi was the Sub-
Inspector. I do not know the Chalapathi, Sub-Inspector produced
complainant before me. The witness again says Chalapathi did not
produce complainant before me. I do not know the complainant is
closely related to Sub-Inspector, Chalapathi and that the complainant
has married the elder brothers daughter of the said Chalapathi.
He too denied the suggestion that TLO falsely implicated him.
b) So, at the outset, the AO could only extract one Chalapathi who is the
maternal uncle of PW1 was a Sub-Inspector of Police and PW1 married the
daughter of said Chalapathis elder brother. Except that AO could not elicit
that Chalapathi was behind the instant case. Most interestingly, AO did not
give any suggestion as to what was the need for Chalapathi to foist a false
case against him. Unless such a suggestion showing the reason for
Chalapathi to use PW1 as a stooge to implicate AO is given, it is difficult to
accept the theory of AO. Thus, it must be said that AO failed to establish
that he was implicated in a false case by PW1 and Chalapathi. So viewing in
that angle, PW1 is an utter stranger to AO and there was no reason for him
to foist a false case against him. Therefore, there is no reason to discard the
evidence of PW1 on the aspects of demand and acceptance of bribe by AO.
9) Now, coming to first argument that AO had never demanded bribe
and on 28.10.2000, 06.11.2000 and 08.11.2000 PW1 did not approach him
and no official work was pending with him by 13.11.2000 is concerned, this
argument is untenable. For the demand and acceptance of Rs.300/- on the
above dates, as already stated, except PW1 there was no other independent
witness. However, there is corroboration in the form of evidence of PWs.2
and 3 and Exs.P1 and P4. In Ex.P1, PW1 clearly mentioned about his
meeting AO on 28.10.2000, 06.11.2000 and 08.11.2000 and his making
demands for bribe, his paying Rs.300/- as bribe etc. facts. In the evidence of
PWs.2 and 3the mediators have clearly stated that on the date of trap when
they appeared before DSP, he furnished copy of Ex.P1 and they thoroughly
read it and enquired PW1 about the truth of its contents and he affirmed that
he voluntarily gave the complaint. It is interesting to note that though PW2
tergiversated during his cross-examination, still his evidence on the above
aspect was not shattered. It was only elicited that the mediators did not
obtain any statement from PW1 that he presented Ex.P1 voluntarily. Then, in
Ex.P4first mediators report also it was mentioned that on enquiry by the
mediators PW1 admitted that he voluntarily presented the complaint to DSP.
a) So, the above oral and documentary evidence cumulatively offer
corroboration on the aspect of demand made by him. Since AO had no
proven enmity with AO, it can be held that there is a ring of truth around his
evidence. Then, the argument that no official favour was pending with AO
and he already prepared sponsoring letter in triplicate under Exs.P10 and
P12 on 10.11.2000 itself, and made ready for the signature of PW5 who was
on leave from 10.11.2000 and 12.11.2000 is concerned, this plea is also not
tenable. It is no doubt Exs.P10 and P12 would show that AO prepared
sponsor letter relating to PW1 addressed to Branch manager, Vysya Bank
Limited, Nandyal on 10.11.2000. It is also true that PW5, Deputy Director
who has to sign on the sponsor letters availed optional holiday on
10.11.2000 whereas 11.11.2000 and 12.11.2000 being Second Saturday and
Sunday were public holidays. It must be noted that by that count alone it
cannot be said that no official favour was pending with AO and he did not
demand bribe. It must be noted stamp on Ex.P2application would show
that it was received by DIC office on 03.10.2000. Admittedly, till
10.11.2000 AO who was the concerned clerk did not prepare the sponsor
letter. No reason was assigned for such long delay in not processing the
application of PW1. So what could understood is that only after PW1 met
him on 28.10.2000; 06.11.2000 and 08.11.2000 and made a part-payment of
Rs.300/- the AO prepared the sponsored letter. Further, it was not elicited
from PW1 that he knew that AO already prepared sponsor letter on
10.11.2000. So from these facts it can be visualised that though AO prepared
Exs.P10 and P12 sponsored letters, he kept PW1 in darkness and was
expecting demanded bribe amount to be paid by 13.11.2000. Therefore, the
argument of AO that no official favour was pending with him and he did not
demand bribe cannot be accepted.
10) The second argument is that on the date of trap i.e. 13.11.2000 AO did
not demand bribe but he received Rs.2,000/- from PW1 under different
circumstances. On 10.11.2000 for the first time PW1 met AO with Ex.P3
willingness letter and submitted to him and at that time also AO did not
demand any bribe but informed that he would prepare sponsor letter and as
the concerned officer was on leave he would get his signature by
13.11.2000. At that time, DW1 who was friend of AO was present. He was
agent of Southern Wonder World Resorts Limited, Hyderabad. On
08.11.2000, AO joined as member in the Resorts scheme under Ex.D5
application form. In fact, on 10.11.2000 DW1 went to AOs office to collect
Ex.D5 and DD. It was the case of AO that on hearing their discussion, PW1
evinced interest to take membership and DW1 explained him the enrolment
procedure and asked PW1 to pay Rs.2,500/- as membership fees and fill up
the application and sign it and leave them with AO, so that DW1 can come
and collect from him later. PW1 agreed and informed that he would come
back on Monday to AO, as he had to come on that day in connection with
his loan and agreed to pay Rs.25,00/- and furnish photographs for enrolment
in the scheme and PW1 left the AO. The vehement contention of AO is that
on the date of trap PW1 came to him and filled up Ex.D1application and
signed it and paid Rs.2,000/- for membership fee and left the office to bring
the remaining amount of Rs.500/- along with photographs and later got him
trapped.
11) To establish the above defence version AO mainly depends on oral
evidence of PW2 and DW1 and Exs.D1 to D5. Hence, the question is
whether the AO could probablise his defence theory. On a careful analysis of
facts and evidence, it must be said that the AO could not probablise his
defence version even by preponderance of probabilities for the following
reasons.
a) Firstly, it is the case of AO that PW1 did not meet him on 28.10.2000,
06.11.2000 and 08.11.2000 but he met him for the first time only on
10.11.2000 and submitted Ex.P3willingness letter and at that time seeing
AO and DW1 discussing about Resorts scheme he evidenced interest. PW1
on the other hand categorically denied the above suggestion. If really PW1
met AO for the first time only on 10.11.2000, there was no possibility for
him to take along with him Ex.P3willingness letter, because until AO told
him that he has to get willingness letter from a bank in his town expressing
willingness to give loan to him, PW1 did not know that he has to secure such
letter. It thus strongly implies that PW1 might have met AO earlier to
10.11.2000. Since Ex.P3letter was dated 03.11.2000, it can be inferred
PW1 met AO prior to that date and on his instructions only secured Ex.P3
and submitted thereafter. Therefore, the version of PW1 that earlier he met
AO thrice i.e. on 28.10.2000, 06.11.2000 and 08.11.2000 is more probable
and believable than the defence plea of AO that he met him only on
10.11.2000. Further, except the interested testimony of DW1 who is the
friend of AO, there is no believable evidence to show that PW1 met AO on
10.11.2000. AO could not extract this fact from any of his colleagues such
as PWs.4 to 8. So, the defence version that PW1 met him only on
10.11.2000 is not believable.
b) Secondly, the explanation that AO received Rs.2,000/- from PW1
towards part membership fee but not as bribe was offered by AO for the first
time during trial but not during the trap. On the other hand, in Ex.P7
second mediators report his explanation as recorded therein was as follows:
The DSP asked Sri J.V.Ramana Murthy to explain if he has any to
explain. On that Sri J.V.Ramana Murthy stated that Sri
B.Ramakrishnudu approached him at his seat and requested him to
come to the Tiffin centre where the complainant himself offered money
and handed over to him in force. He kept the said amount in the
foldings of his purse in his hip pocket of his pant and returned to his
office. While returning to his seat, just he was standing at the computer
room to meet Sri Gopal Naidu IPO, Kurnool meanwhile, the ACB
officers came and caught him.
12) It is true, we have precedential jurisprudence to the effect that merely
because accused did not offer any explanation for possessing tainted amount
before the trap officers and could offer an explanation during trial, on that
ground alone his explanation need not be discarded if the explanation
appeals to the conscience of the Court as genuine. In Punjabraos case
(2 supra) the Apex Court held that if the explanation offered by AO during
313 Cr.P.C. is found to be reasonable, then it cannot be thrown away merely
on the ground that he did not offer the said explanation at the time when the
amount was seized. Be that it may, the situation in the instant case is quite
different. AO in fact, offered spontaneous explanation in different manner as
if PW1 took him to Vishnu Canteen and himself forcibly offered the money
and so that he received and kept in his purse. This version is diametrically
opposite to his defence during trial. If really the amount was forcibly offered
by PW1 as mentioned in Ex.P7, nothing prevented AO to refuse but he kept
the amount in his purse which infers his willingness to take the amount.
Then, the later explanation is concerned, as already discussed, that is only an
after thought and not found in Ex.P7. It is claimed by AO that he gave
spontaneous explanation and also produced Ex.D1application form before
the TLO but the TLO deliberately omitted to mention his true version in
Ex.P7. This is another unbelievable version because we will find in Ex.P7
the endorsement of AO to the effect:
Received the copy of proceedings containing pages P1 to P8.
Sd. x x x
J.V.Ramana Murthy
13.11.2k.
This endorsement implies that after having gone through the contents he
received the copy of Ex.P7. If the true version of his explanation was not
recorded, nothing prevented him to refuse to accept the copy or accept under
protest before the authorities. He did not make any protest before the higher
officials of ACB or even before the trial Court at the earliest possible
opportunity. All these would show his later explanation is an after thought.
To cover up his laches AO elicited from PW2 as if he received copy of
Ex.P7 without reading its contents. This answer of PW2 who is a hostile
witness, is manifestly aimed at to help the AO and hence not believable
because of his own admission during the cross-examination of Spl.P.P to the
effect that what happened and conducted by Inspector was written by him
(PW2) in Ex.P7 and what was written in Ex.P7 had happened there. In view
of his categorical admission to the effect that true happenings during trap
proceedings were only recorded in Ex.P7 there is no gain saying for AO to
clamour that his true explanation was not recorded and he received copy
blindly without reading. We presently discuss in detail the veracity of
evidence of PW2.
13) As already stated supra, AO banks on the evidence of PW2 and DW1
to probablise his defence. PW2 is concerned, he is one of the mediators
along with PW3 who participated in pre-trap and trap proceedings. In his
chief-examination, he deposed in favour of prosecution by narrating all the
incidents. However, in the cross-examination he gave a go-bye and
supported the defence case. Hence, the Spl.P.P declared him hostile and
cross-examined him with the permission of Court. Hence, now, the point is
what is probative value of evidence of PW2 and whether it can be relied
upon by the prosecution and defence.
On the aspects of appreciation and probative value of a hostile witness
the Apex Court in its latest judgment in Paulmeli and another v. State of
Tamil Naidu, Traffic Inspector of Police (MANU/SC/0505/2014) 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.
a) So, the principle is that the evidence of a hostile witness need not be
totally reject and it needs to be closely scrutinized and that portion of his
evidence which is consistent with the case of prosecution or defence can be
relied upon. Applying this test to PW2, it is important to note that he
supported the prosecution case in chief-examination but deposed in favour of
accused during the cross-examination. It is important to note that PW2 was
examined in chief on 30.09.2003 and cross-examined on 20.10.2003. Thus,
there was a gap of 20 days in between. If really what he deposed in the
cross-examination in favour of defence side was true, there was no reason
why PW2 did not speak those facts at the very first instance during his chief-
examination itself. This implies that in the interregnum period he was won
over by defence side. That was the only inference one can draw. The facts
deposed by PW2 in the chief-examination were corroborated by PW3
another mediator who is an independent witness. On the other hand, there
was no corroboration forthcoming from any reliable source for what he
deposed in the cross-examination of AO. Hence, the AO cannot claim any
advantage from the evidence of PW2 unlike prosecution.
b) Then DW1 is concerned, he is a friend of AO and so he is an
interested witness. He spoke about the incident said to have taken place on
10.11.2000. Earlier, it was held that PW1s meeting AO on 10.11.2000 is
unbelievable. Consequently, the evidence of DW1 is also unbelievable to
that extent. Hence, his evidence will not help for the cause of AO.
c) Then, AO relies on Ex.D1application form. His claim is that at the
time of trap he showed Ex.D1 to trap authorities and he also showed Exs.D2
to D5 during his house search. Ex.D1 is concerned, PW1 deposed that he
did not know Vijayavardhan Reddy (DW1) and he submitted an application
for membership in Southern Wonder World Resorts Limited and he did not
fill up the application but he signed on it and Ex.D1 was the said application.
However, there was no further suggestion that PW1 signed the application
on13.11.2000 and delivered it to AO. Ex.D1 may at best show that PW1
was willing to take up membership in Southern Wonder World Resorts
Limited and signed on it. However, it cannot be taken as proof positive that
he tendered the application on 13.11.2000 and most importantly Rs. 2,000/-
to AO towards membership particularly in the absence of such mentioning in
Ex.P7. So, on a conspectus of facts and evidence it is clear that the AO could
not rebut the presumption under Section 20 of PC Act.
14) It may be noted that a feeble attempt was made to show that the TLO
registered FIR without conducting any preliminary enquiry because the
report was lodged on 12.11.2000 which was a Sunday and trap was arranged
on the very next day i.e. 13.11.2000 and as Ex.P1 was lodged on Sunday,
there was no possibility for conducting enquiry with regard to antecedents of
AO. This argument is untenable. Ex.P1 was received by DSP, ACB on
12.11.2000 at 10 AM, as per his endorsement on it. In Ex.P14FIR it was
mentioned that after preliminary investigation the FIR was registered and
investigation was taken up on 13.11.2000. PW11 in his evidence clearly
deposed that he detailed all the facts to the Inspector to verify the contents
of
the complaint and to verify the antecedents of the complainant and
reputation of AO and Inspector informed him after verification that PW11
was not ill disposed towards AO and reputation of AO was bad and having
been satisfied and after contacting Head Office over phone and obtaining
permission, he registered FIR. He denied the suggestion that he did not make
any preliminary enquiry before registering FIR. It should be noted that
preliminary enquiry is a sort of discreet enquiry which the ACB police will
do through their secret source. Merely because 12.11.2000 happened to be
Sunday it cannot be inferred that no information about the AO and
complainant could be gathered. Hence, this argument does not stand to
reasoning.
In view of the above discussion, it must be held that the judgment of
the trial Court does not suffer the vices of perverse appreciation of facts and
evidence to differ with.
15) In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court in C.C.No.26 of 2001.
Consequently, appellant/AO is directed to surrender before the trial Court on
or before 25.06.2015 and on such surrender, the trial Court shall commit him
to jail for serving sentence.
As a sequel, miscellaneous applications pending, if ay, shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 01.06.2015
registered FIR without conducting any preliminary enquiry because the
report was lodged on 12.11.2000 which was a Sunday and trap was arranged
on the very next day i.e. 13.11.2000 and as Ex.P1 was lodged on Sunday,
there was no possibility for conducting enquiry with regard to antecedents of
AO. This argument is untenable. Ex.P1 was received by DSP, ACB on
12.11.2000 at 10 AM, as per his endorsement on it. In Ex.P14FIR it was
mentioned that after preliminary investigation the FIR was registered and
investigation was taken up on 13.11.2000. PW11 in his evidence clearly
deposed that he detailed all the facts to the Inspector to verify the contents
of
the complaint and to verify the antecedents of the complainant and
reputation of AO and Inspector informed him after verification that PW11
was not ill disposed towards AO and reputation of AO was bad and having
been satisfied and after contacting Head Office over phone and obtaining
permission, he registered FIR. He denied the suggestion that he did not make
any preliminary enquiry before registering FIR. It should be noted that
preliminary enquiry is a sort of discreet enquiry which the ACB police will
do through their secret source. Merely because 12.11.2000 happened to be
Sunday it cannot be inferred that no information about the AO and
complainant could be gathered. Hence, this argument does not stand to
reasoning.
In view of the above discussion, it must be held that the judgment of
the trial Court does not suffer the vices of perverse appreciation of facts and
evidence to differ with.
In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court in C.C.No.26 of 2001.
Consequently, appellant/AO is directed to surrender before the trial Court on
or before 25.06.2015 and on such surrender, the trial Court shall commit him
to jail for serving sentence.
As a sequel, miscellaneous applications pending, if ay, shall stand
closed.
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.405 of 2006
01-06-2015
J.V. Ramana Murthy..... Appellant
The State of A.P,Rep. by its Spl. Public Prosecutor,High Court of A.P,
Hyderabad.. Respondent
Counsel for Appellant : Sri G. Surapu Naidu
Counsel for Respondent : Sri Ghani A Musa
Special Public Prosecutor for ACB
<Gist:
>Head Note:
?Cases referred:
1) (2013) 3 SCC 721
2) (2002) 10 SCC 371
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.405 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the Accused Officer (AO)
aggrieved by the judgment dated 13.03.2006 in C.C.No.26 of 2001 passed
by learned Additional Special Judge for SPE & ACB Cases, City Civil
Court, Hyderabad convicting him for the offences under Sections 7 and
13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short P.C
Act).
2) The factual matrix of the case is thus:
a) AOJ.V.Ramana Murthy worked as Junior Assistant in the office of
General Manager (PW10), District Industries Centre (for short DIC),
Kurnool from 14.08.1998 to 13.11.2000 and during relevant time he was the
seat clerk looking after applications under PMRY. According to
prosecution, B.Ramakrishnudu (PW1) who is doing business in Home needs
at Nandyal made an application to PW10 on 02.10.2000 for sanction of loan
under PMRY scheme for developing his business. While so, on 28.10.2000,
PW1 went to DIC, Kurnool and approached AO to enquire about his loan
application. At that time, AO informed that PW1s application was received
and informed that willingness letter from any Bank of Nandyal has to be
obtained in favour of Industrial Promotion Officer to advance the loan. So
saying, AO allegedly demanded an amount of Rs.1,000/- for doing official
favour and after negotiation reduced it to Rs.700/- and informed that unless
he paid the bribe amount his loan application would not be processed.
b) Again, on 06.11.2000, when the complainant approached AO along
with willingness letter issued by Vysya Bank Manager, he refused to receive
the letter unless bribe amount was paid. PW1 again met AO on 08.11.2000
and on his demand paid Rs.300/- and handed over the letter issued by the
bank. The AO while receiving the bank letter and bribe amount of Rs.300/-,
demanded Rs.4,000/- for getting sanction of loan of Rs.1 lakh. On persistent
request of PW1, AO reduced the amount to Rs.2,000/- and instructed to pay
the said amount on or before 13.11.2000 otherwise his loan application
would not be processed.
c) Unwilling to pay the bribe amount, PW1 lodged a complaint with
PW11the DSP, ACB, Kurnool on 12.11.2000, who registered the same as
case in Cr.No.10/ACB-KUR/2000 under Section 7 of PC Act on 13.11.2000
and took up investigation and successfully laid trap on AO by following the
procedure. After completion of investigation, PW12the Inspector of
Police, ACB, Kurnool laid charge sheet against AO under Section 7 and
13(1)(d) r/w 13(2) of PC Act.
d) During trial, PWs.1 to 12 were examined and Exs.P1 to P14 were
marked on behalf of prosecution. D.W.1 was examined and Exs.D1 and D5
were marked on behalf of defence.
e) The trial Court on appreciation of oral and documentary evidence
found the AO guilty of the charges under Sections 7, 13(1) (d) r/w 13(2) of
P.C. Act, convicted and sentenced him to undergo R.I for a period of one
year and to pay a fine of Rs.1,000/- and in default to suffer SI for three
months on two counts. Both the sentences were directed to run
concurrently.
Hence, the appeal by AO.
3) Heard arguments of Sri G.Surapu Naidu, learned counsel for
appellant/AO and Sri Ghani A. Musa, learned Special Public Prosecutor
(Spl.P.P.) for ACB cases.
4) The point for determination in this appeal is:
Whether the conviction and sentence passed by the trial Court are factually
and legally sustainable?
5) POINT: In the instant case, the admitted facts would show that the
accused has accepted Rs.2,000/- from PW1 just before trap and it is a further
admitted fact that what he received was not a legal remuneration, in the
sense that the said amount was not required to be paid by PW1 to AO in the
form of fees or deposit to enable him to secure the loan. Prosecution through
the evidence of PW1 could establish that the said amount was paid on
demand by AO. In view of this, the mandatory presumption under Section
20 of PC Act follows to the effect that the AO has accepted the said amount
as a motive or reward for doing an official favour. Therefore, in the instant
case, the burden is on the AO to rebut the presumption.
a) In this regard, learned counsel for appellant/AO cited the decisions to
the effect that accused can discharge his burden by showing preponderance
of probabilities. In the decision reported in K.S.Panduranga v. State of
Karnataka the Apex Court observed thus:
39. Keeping in view that the demand and acceptance of the amount as
illegal gratification is a condition precedent for constituting an offence
under the Act, it is to be noted that there is a statutory presumption under
Section 20 of the Act which can be dislodged by the accused by bringing on
record some evidence, either direct or circumstantial, that money was
accepted other than for the motive or the reward as stipulated under
Section 7 of the Act. When some explanation is offered, the court is obliged
to consider the explanation under Section 20 of the Act and the
consideration of the explanation has to be on the touchstone of
preponderance of probability. It is not to be proven beyond all reasonable
doubt. In the case at hand, we are disposed to think that the explanation
offered by the accused does not deserve any acceptance and, accordingly,
we find that the finding recorded on that score by the learned trial Judge and
the stamp of approval given to the same by the High Court cannot be
faulted.
b) In Punjabrao v. State of Maharashtra also the Apex Court held in
similar lines as follows:
3.We have examined the judgment of the learned Special Judge as well as
that of the High Court. 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
c) Thus, the precedential jurisprudence laid down by the Apex
Court would show that the accused can successfully rebut the
presumption by showing preponderance of probabilities and not
necessarily by rigid proof. Hence, now the point is whether the AO could
discharge his burden to the satisfaction of the Court or not.
6) AO in his attempt to rebut the presumption put forth the following
arguments.
a) Firstly, he never demanded any bribe from PW1 and in fact, on
28.10.2000, 06.11.2000 and 08.11.2000 PW1 did not meet him at all and
he did not demand bribe or receive Rs.300/- from him on 08.11.2000 and
further, there was no occasion for him to demand bribe since by the date
of trap no work relating to PW1 was pending with him as he already
prepared the sponsor letter in triplicate under Exs.P10 and P12 on
10.11.2000 itself and was waiting for the signatures of Deputy Director
(PW5) who was on leave from 10.11.2000 to 13.11.2000.
b) Secondly, on the date of trap i.e. 13.11.2000 also he did not
demand any bribe from PW1, but PW1 came to his office and gave
Rs.2,000/- out of Rs.2,500/- as part of membership fee payable by him for
Southern Wonder World Resorts Limited under Ex.D1application and
he promised to bring the balance amount of Rs.500/- along with
photograph and went away and got him trapped in a false case by dubbing
the amount given by him as bribe.
c) Thirdly, it is argued that PW1 on the instructions of his maternal
uncleChalapathi implicated him in the false case.
d) Fourthly, it is argued that TLO registered a case and laid a false
trap without conducting preliminary enquiry, which is mandatory.
7) In a trap case, the prosecution shall by cogent evidence establish
demand and acceptance of bribe to sustain a charge under Section 7 of PC
Act. In the instant case, for proof of these two vital ingredients there was
no direct independent evidence except the evidence of PW1. So, in the
considered view of this Court, the veracity of his evidence has to be
scrutinized before analysing the arguments raised by AO.
a) PW1 is a resident of Nandyal and during the relevant period of
offence he was unemployed and doing business in Home needs. In order
to improve his business, he put up Ex.P2application to DIC office,
Kurnool for loan under PMRY scheme. His application was received in
DIC office on 03.10.2000. When there was no information for about three
weeks, he went to DIC office on 28.10.2000 to enquire about his
applications. He was informed that AO was the concerned clerk looking
after PMRY applications. When he met AO, he informed that his
application was received and would be fed into computer and asked him
to obtain a willingness letter from any bank at Nandyal agreeing to
provide him loan and at that time, AO allegedly demanded Rs.1,000/- as
bribe. When PW1 expressed his inability, he reduced the amount to
Rs.700/-. The further case of PW1 is that on 03.11.2000, he obtained
willingness letter from Vysya Bank, Nandyal and on 06.11.2000 he went
and met the AO. He enquired whether he brought the demanded amount,
but PW1 replied that he could not secure the amount. AO refused to
receive the letter and instructed him to bring the letter along with
demanded money. Having no other go, PW1 returned and again went to
DIC office on 08.11.2000 and met AO and gave only Rs.300/- along with
willingness letter. The AO received the letter and amount and informed
that PW1 would likely to get Rs.1 lakh as loan and demanded Rs.4,000/-
as bribe for processing his application and sending the sponsoring letter to
the bank. On the request of PW1, AO reduced the amount to Rs.2,000/-
and instructed him to bring the said amount by coming Monday i.e.
13.11.2000 or otherwise his work would not be done. Unwilling to pay
bribe, PW1 gave Ex.P1complaint to PW11TLO, who registered FIR
and laid trap on AO on 13.11.2000 on which date, as per his instructions
PW1 approached DIC office and paid the tainted amount to AO on his
further demand and came out and gave pre-arranged signal to trap party
who rushed and caught AO red handed.
8) This is precisely the case of PW1. Coming to veracity of his
evidence, the facts and evidence would show that PW1 was a resident of
Nandyal and he had no prior acquaintance much less enmity with AO to
nurture grudge against him. The defence version is that at the instance of
his uncleChalapathi PW1 foisted a false case against him. In this
regard, in the cross-examination, PW1 stated thus:
I have an aunt in Kurnool, where I used to stay whenever I visit from
Nandyal. The name of the husband of the said aunt is Sri Chalapathi,
who is my maternal uncle. The said Chalapathi is Sub-Inspector
Police. It is not true to suggest he worked earlier in ACB Kurnool
range. I have married his eldest brothers daughter and I am not aware
whether he worked as Head Constable in ACB earlier to it. The said
Chalapathi is in fact my material uncle.
He denied the suggestion that Chalapathi was behind the complainant and at
his instance to help the ACB and with the money provided by Chalapathi, he
acted as tool in the hands of ACB and implicated AO in a false case.
a) Similar suggestions were put to PW11TLO also. PW11 stated thus:
It is not true to suggest that at that time Sri Chalapathi was the Sub-
Inspector. I do not know the Chalapathi, Sub-Inspector produced
complainant before me. The witness again says Chalapathi did not
produce complainant before me. I do not know the complainant is
closely related to Sub-Inspector, Chalapathi and that the complainant
has married the elder brothers daughter of the said Chalapathi.
He too denied the suggestion that TLO falsely implicated him.
b) So, at the outset, the AO could only extract one Chalapathi who is the
maternal uncle of PW1 was a Sub-Inspector of Police and PW1 married the
daughter of said Chalapathis elder brother. Except that AO could not elicit
that Chalapathi was behind the instant case. Most interestingly, AO did not
give any suggestion as to what was the need for Chalapathi to foist a false
case against him. Unless such a suggestion showing the reason for
Chalapathi to use PW1 as a stooge to implicate AO is given, it is difficult to
accept the theory of AO. Thus, it must be said that AO failed to establish
that he was implicated in a false case by PW1 and Chalapathi. So viewing in
that angle, PW1 is an utter stranger to AO and there was no reason for him
to foist a false case against him. Therefore, there is no reason to discard the
evidence of PW1 on the aspects of demand and acceptance of bribe by AO.
9) Now, coming to first argument that AO had never demanded bribe
and on 28.10.2000, 06.11.2000 and 08.11.2000 PW1 did not approach him
and no official work was pending with him by 13.11.2000 is concerned, this
argument is untenable. For the demand and acceptance of Rs.300/- on the
above dates, as already stated, except PW1 there was no other independent
witness. However, there is corroboration in the form of evidence of PWs.2
and 3 and Exs.P1 and P4. In Ex.P1, PW1 clearly mentioned about his
meeting AO on 28.10.2000, 06.11.2000 and 08.11.2000 and his making
demands for bribe, his paying Rs.300/- as bribe etc. facts. In the evidence of
PWs.2 and 3the mediators have clearly stated that on the date of trap when
they appeared before DSP, he furnished copy of Ex.P1 and they thoroughly
read it and enquired PW1 about the truth of its contents and he affirmed that
he voluntarily gave the complaint. It is interesting to note that though PW2
tergiversated during his cross-examination, still his evidence on the above
aspect was not shattered. It was only elicited that the mediators did not
obtain any statement from PW1 that he presented Ex.P1 voluntarily. Then, in
Ex.P4first mediators report also it was mentioned that on enquiry by the
mediators PW1 admitted that he voluntarily presented the complaint to DSP.
a) So, the above oral and documentary evidence cumulatively offer
corroboration on the aspect of demand made by him. Since AO had no
proven enmity with AO, it can be held that there is a ring of truth around his
evidence. Then, the argument that no official favour was pending with AO
and he already prepared sponsoring letter in triplicate under Exs.P10 and
P12 on 10.11.2000 itself, and made ready for the signature of PW5 who was
on leave from 10.11.2000 and 12.11.2000 is concerned, this plea is also not
tenable. It is no doubt Exs.P10 and P12 would show that AO prepared
sponsor letter relating to PW1 addressed to Branch manager, Vysya Bank
Limited, Nandyal on 10.11.2000. It is also true that PW5, Deputy Director
who has to sign on the sponsor letters availed optional holiday on
10.11.2000 whereas 11.11.2000 and 12.11.2000 being Second Saturday and
Sunday were public holidays. It must be noted that by that count alone it
cannot be said that no official favour was pending with AO and he did not
demand bribe. It must be noted stamp on Ex.P2application would show
that it was received by DIC office on 03.10.2000. Admittedly, till
10.11.2000 AO who was the concerned clerk did not prepare the sponsor
letter. No reason was assigned for such long delay in not processing the
application of PW1. So what could understood is that only after PW1 met
him on 28.10.2000; 06.11.2000 and 08.11.2000 and made a part-payment of
Rs.300/- the AO prepared the sponsored letter. Further, it was not elicited
from PW1 that he knew that AO already prepared sponsor letter on
10.11.2000. So from these facts it can be visualised that though AO prepared
Exs.P10 and P12 sponsored letters, he kept PW1 in darkness and was
expecting demanded bribe amount to be paid by 13.11.2000. Therefore, the
argument of AO that no official favour was pending with him and he did not
demand bribe cannot be accepted.
10) The second argument is that on the date of trap i.e. 13.11.2000 AO did
not demand bribe but he received Rs.2,000/- from PW1 under different
circumstances. On 10.11.2000 for the first time PW1 met AO with Ex.P3
willingness letter and submitted to him and at that time also AO did not
demand any bribe but informed that he would prepare sponsor letter and as
the concerned officer was on leave he would get his signature by
13.11.2000. At that time, DW1 who was friend of AO was present. He was
agent of Southern Wonder World Resorts Limited, Hyderabad. On
08.11.2000, AO joined as member in the Resorts scheme under Ex.D5
application form. In fact, on 10.11.2000 DW1 went to AOs office to collect
Ex.D5 and DD. It was the case of AO that on hearing their discussion, PW1
evinced interest to take membership and DW1 explained him the enrolment
procedure and asked PW1 to pay Rs.2,500/- as membership fees and fill up
the application and sign it and leave them with AO, so that DW1 can come
and collect from him later. PW1 agreed and informed that he would come
back on Monday to AO, as he had to come on that day in connection with
his loan and agreed to pay Rs.25,00/- and furnish photographs for enrolment
in the scheme and PW1 left the AO. The vehement contention of AO is that
on the date of trap PW1 came to him and filled up Ex.D1application and
signed it and paid Rs.2,000/- for membership fee and left the office to bring
the remaining amount of Rs.500/- along with photographs and later got him
trapped.
11) To establish the above defence version AO mainly depends on oral
evidence of PW2 and DW1 and Exs.D1 to D5. Hence, the question is
whether the AO could probablise his defence theory. On a careful analysis of
facts and evidence, it must be said that the AO could not probablise his
defence version even by preponderance of probabilities for the following
reasons.
a) Firstly, it is the case of AO that PW1 did not meet him on 28.10.2000,
06.11.2000 and 08.11.2000 but he met him for the first time only on
10.11.2000 and submitted Ex.P3willingness letter and at that time seeing
AO and DW1 discussing about Resorts scheme he evidenced interest. PW1
on the other hand categorically denied the above suggestion. If really PW1
met AO for the first time only on 10.11.2000, there was no possibility for
him to take along with him Ex.P3willingness letter, because until AO told
him that he has to get willingness letter from a bank in his town expressing
willingness to give loan to him, PW1 did not know that he has to secure such
letter. It thus strongly implies that PW1 might have met AO earlier to
10.11.2000. Since Ex.P3letter was dated 03.11.2000, it can be inferred
PW1 met AO prior to that date and on his instructions only secured Ex.P3
and submitted thereafter. Therefore, the version of PW1 that earlier he met
AO thrice i.e. on 28.10.2000, 06.11.2000 and 08.11.2000 is more probable
and believable than the defence plea of AO that he met him only on
10.11.2000. Further, except the interested testimony of DW1 who is the
friend of AO, there is no believable evidence to show that PW1 met AO on
10.11.2000. AO could not extract this fact from any of his colleagues such
as PWs.4 to 8. So, the defence version that PW1 met him only on
10.11.2000 is not believable.
b) Secondly, the explanation that AO received Rs.2,000/- from PW1
towards part membership fee but not as bribe was offered by AO for the first
time during trial but not during the trap. On the other hand, in Ex.P7
second mediators report his explanation as recorded therein was as follows:
The DSP asked Sri J.V.Ramana Murthy to explain if he has any to
explain. On that Sri J.V.Ramana Murthy stated that Sri
B.Ramakrishnudu approached him at his seat and requested him to
come to the Tiffin centre where the complainant himself offered money
and handed over to him in force. He kept the said amount in the
foldings of his purse in his hip pocket of his pant and returned to his
office. While returning to his seat, just he was standing at the computer
room to meet Sri Gopal Naidu IPO, Kurnool meanwhile, the ACB
officers came and caught him.
12) It is true, we have precedential jurisprudence to the effect that merely
because accused did not offer any explanation for possessing tainted amount
before the trap officers and could offer an explanation during trial, on that
ground alone his explanation need not be discarded if the explanation
appeals to the conscience of the Court as genuine. In Punjabraos case
(2 supra) the Apex Court held that if the explanation offered by AO during
313 Cr.P.C. is found to be reasonable, then it cannot be thrown away merely
on the ground that he did not offer the said explanation at the time when the
amount was seized. Be that it may, the situation in the instant case is quite
different. AO in fact, offered spontaneous explanation in different manner as
if PW1 took him to Vishnu Canteen and himself forcibly offered the money
and so that he received and kept in his purse. This version is diametrically
opposite to his defence during trial. If really the amount was forcibly offered
by PW1 as mentioned in Ex.P7, nothing prevented AO to refuse but he kept
the amount in his purse which infers his willingness to take the amount.
Then, the later explanation is concerned, as already discussed, that is only an
after thought and not found in Ex.P7. It is claimed by AO that he gave
spontaneous explanation and also produced Ex.D1application form before
the TLO but the TLO deliberately omitted to mention his true version in
Ex.P7. This is another unbelievable version because we will find in Ex.P7
the endorsement of AO to the effect:
Received the copy of proceedings containing pages P1 to P8.
Sd. x x x
J.V.Ramana Murthy
13.11.2k.
This endorsement implies that after having gone through the contents he
received the copy of Ex.P7. If the true version of his explanation was not
recorded, nothing prevented him to refuse to accept the copy or accept under
protest before the authorities. He did not make any protest before the higher
officials of ACB or even before the trial Court at the earliest possible
opportunity. All these would show his later explanation is an after thought.
To cover up his laches AO elicited from PW2 as if he received copy of
Ex.P7 without reading its contents. This answer of PW2 who is a hostile
witness, is manifestly aimed at to help the AO and hence not believable
because of his own admission during the cross-examination of Spl.P.P to the
effect that what happened and conducted by Inspector was written by him
(PW2) in Ex.P7 and what was written in Ex.P7 had happened there. In view
of his categorical admission to the effect that true happenings during trap
proceedings were only recorded in Ex.P7 there is no gain saying for AO to
clamour that his true explanation was not recorded and he received copy
blindly without reading. We presently discuss in detail the veracity of
evidence of PW2.
13) As already stated supra, AO banks on the evidence of PW2 and DW1
to probablise his defence. PW2 is concerned, he is one of the mediators
along with PW3 who participated in pre-trap and trap proceedings. In his
chief-examination, he deposed in favour of prosecution by narrating all the
incidents. However, in the cross-examination he gave a go-bye and
supported the defence case. Hence, the Spl.P.P declared him hostile and
cross-examined him with the permission of Court. Hence, now, the point is
what is probative value of evidence of PW2 and whether it can be relied
upon by the prosecution and defence.
On the aspects of appreciation and probative value of a hostile witness
the Apex Court in its latest judgment in Paulmeli and another v. State of
Tamil Naidu, Traffic Inspector of Police (MANU/SC/0505/2014) 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.
a) So, the principle is that the evidence of a hostile witness need not be
totally reject and it needs to be closely scrutinized and that portion of his
evidence which is consistent with the case of prosecution or defence can be
relied upon. Applying this test to PW2, it is important to note that he
supported the prosecution case in chief-examination but deposed in favour of
accused during the cross-examination. It is important to note that PW2 was
examined in chief on 30.09.2003 and cross-examined on 20.10.2003. Thus,
there was a gap of 20 days in between. If really what he deposed in the
cross-examination in favour of defence side was true, there was no reason
why PW2 did not speak those facts at the very first instance during his chief-
examination itself. This implies that in the interregnum period he was won
over by defence side. That was the only inference one can draw. The facts
deposed by PW2 in the chief-examination were corroborated by PW3
another mediator who is an independent witness. On the other hand, there
was no corroboration forthcoming from any reliable source for what he
deposed in the cross-examination of AO. Hence, the AO cannot claim any
advantage from the evidence of PW2 unlike prosecution.
b) Then DW1 is concerned, he is a friend of AO and so he is an
interested witness. He spoke about the incident said to have taken place on
10.11.2000. Earlier, it was held that PW1s meeting AO on 10.11.2000 is
unbelievable. Consequently, the evidence of DW1 is also unbelievable to
that extent. Hence, his evidence will not help for the cause of AO.
c) Then, AO relies on Ex.D1application form. His claim is that at the
time of trap he showed Ex.D1 to trap authorities and he also showed Exs.D2
to D5 during his house search. Ex.D1 is concerned, PW1 deposed that he
did not know Vijayavardhan Reddy (DW1) and he submitted an application
for membership in Southern Wonder World Resorts Limited and he did not
fill up the application but he signed on it and Ex.D1 was the said application.
However, there was no further suggestion that PW1 signed the application
on13.11.2000 and delivered it to AO. Ex.D1 may at best show that PW1
was willing to take up membership in Southern Wonder World Resorts
Limited and signed on it. However, it cannot be taken as proof positive that
he tendered the application on 13.11.2000 and most importantly Rs. 2,000/-
to AO towards membership particularly in the absence of such mentioning in
Ex.P7. So, on a conspectus of facts and evidence it is clear that the AO could
not rebut the presumption under Section 20 of PC Act.
14) It may be noted that a feeble attempt was made to show that the TLO
registered FIR without conducting any preliminary enquiry because the
report was lodged on 12.11.2000 which was a Sunday and trap was arranged
on the very next day i.e. 13.11.2000 and as Ex.P1 was lodged on Sunday,
there was no possibility for conducting enquiry with regard to antecedents of
AO. This argument is untenable. Ex.P1 was received by DSP, ACB on
12.11.2000 at 10 AM, as per his endorsement on it. In Ex.P14FIR it was
mentioned that after preliminary investigation the FIR was registered and
investigation was taken up on 13.11.2000. PW11 in his evidence clearly
deposed that he detailed all the facts to the Inspector to verify the contents
of
the complaint and to verify the antecedents of the complainant and
reputation of AO and Inspector informed him after verification that PW11
was not ill disposed towards AO and reputation of AO was bad and having
been satisfied and after contacting Head Office over phone and obtaining
permission, he registered FIR. He denied the suggestion that he did not make
any preliminary enquiry before registering FIR. It should be noted that
preliminary enquiry is a sort of discreet enquiry which the ACB police will
do through their secret source. Merely because 12.11.2000 happened to be
Sunday it cannot be inferred that no information about the AO and
complainant could be gathered. Hence, this argument does not stand to
reasoning.
In view of the above discussion, it must be held that the judgment of
the trial Court does not suffer the vices of perverse appreciation of facts and
evidence to differ with.
15) In the result, this Criminal Appeal is dismissed by confirming the
conviction and sentence passed by the trial Court in C.C.No.26 of 2001.
Consequently, appellant/AO is directed to surrender before the trial Court on
or before 25.06.2015 and on such surrender, the trial Court shall commit him
to jail for serving sentence.
As a sequel, miscellaneous applications pending, if ay, shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 01.06.2015
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