CRLA/1729/2005 of D.Sudharshan, Vs Anti Corruption Bureau, on 31 December 2012

JUDGMENT:

This Criminal Appeal is filed against the judgment dated29-10-2005 passed by the Special Judge for SPE & ACB Cases,City Civil Court, Hyderabad in CC.No. 14 of 2001 whereby andwhereunder the appellant-sole accused was convicted for theoffence under section 7 and 13 (1) (d) of the Prevention ofCorruption Act, 1988 and was sentenced to undergo RigorousImprisonment for one year for the offence under section 7 of theAct and also to pay a fine of Rs.1000/- and in default to undergosimple imprisonment for three months and also sentenced toundergo Rigorous Imprisonment for two years for the offenceunder section 13 (1) (d) of the Act punishable under section 13(2) of the Act and also to pay a fine of Rs.2,000/- and in default toundergo simple imprisonment for six months.

2. Heard SriB.Venkat Ratnam, the learned counselappearing for the appellant and Sri R. Ramchandra Reddy, thelearned Special Public Prosecutor and Standing Counsel for ACB

and CBI Cases.

3. The prosecution case is that PW-1 the defactocomplainant Sri Gorkati Ravi in this case is resident ofVenkatapur village of Duggondi Mandal, Warangal district. Hebelongs to scheduled caste. He is a labourer. On 07-03-1999some houses in their village were gutted in fire accident. TheDistrict Collector, Warangal had sanctioned an amount ofRs.16,500=00 to each individual whose house was burnt in thefire accident. PW-1 was one such person, who was granted theamount by the District Collector for the purpose of reconstructingthe house. The appellant was working as Assistant Engineer inAP State Housing Corporation, Narasampet, Warangal district. Cement bags were to be supplied to the complainant and otherpersons whose houses were burnt in the fire accident basing onthe vouchers issued by the appellant for the construction of theirrespective houses. The prosecution version is that the appellantissued vouchers for some cement bags and for issuing theremaining vouchers he demanded an amount of Rs.1,000/- fromPW-1. PW-1, who was not willing to pay the bribe amount to theappellant, approached PW-6 Deputy Superintendent of Police,

ACB, Warangal Range and gave a complaint against theappellant on 26-03-1999 at 10:00 a.m. A case in CrimeNo.4/ACB-WRL/99 came to be registered on 28-3-1999 againstthe appellant under section 7 and 13 (2) read with section 13 (2)(d) of the Prevention of Corruption Act, 1988. In the course ofinvestigation, a trap was laid on 28-03-1999 in the course ofwhich as directed by the Deputy Superintendent of Police, PW-1approached the appellant and offered an amount of Rs.800/- asbribe. He received the same and the trap laying party rushed inon receiving the pre-arranged signal. The chemical testconducted on the fingers of the appellant yielded positive resultand the tainted amount of Rs.800/- was recovered from thepossession of the appellant.

4. In the course of trial before the learned court below, theprosecution examined PWs 1 to 6 and marked Exs.P-1 to P-13. The appellant did not depose or examine any witnesses andmarked Ex.D-1 tour diary on his behalf.

5. PW-1 is the defacto complainant and PW-2 is hissister. They were the crucial witnesses in this case. They resiledfrom their earlier version and supported the theory put forth by the appellant, which was to the effect that he borrowed an amountof Rs.1,000/- from PW-2 the sister of PW-1 earlier to the trap andon the date of trap he received an amount of Rs.800/- from PW-1as PW-1 represented to him that was repayment of loan by hissister through him. Since the appellant accepted the receipt ofamount from PW-1 and there was no accompanying witnesswhile PW-1 allegedly offered the amount to the appellant as bribe,the evidence of the mediator becomes in consequential except inso far as it relates to the recovery of the tainted amount from thepossession of the appellant. The learned trial court howeverdespite the fact of PWs 1 and 2 not supporting the prosecutionversion., taking into account the admitted factum of recovery ofRs.800/- from the possession of PW-1 coupled with the othercircumstances, considered the receipt of amount as voluntarilyacceptance of bribe by the appellant drew a presumption undersection 20 of the Act convicted the appellant for the graft chargeand sentenced him to punishment as mentioned hereinabove.

6. The point therefore which arise for consideration in thepresent appeal is whether the order of conviction and sentencepassed by the learned trial court can be sustained ?

7. PWs 1 and 2 are labourers. PW-2 specifically stated inher evidence before the trial court that she is a cooli and earnsan amount of Rs.20/- per day. She also stated that her husbandis a cooli. PW-1 is also admittedly a labourer. PWs 1 and 2supported the loan theory put forth by the appellant and PW-1stated in his deposition before the trial court that on the advisegiven by somebody to the effect that if a complaint is given to theAnti-Corruption Bureau, the appellant would issue the vouchersfor the remaining cement bags, he gave a report to the Anti-Corruption Bureau and in fact the appellant did not demand anybribe from him for issuing the vouchers relating to the cementbags. He also stated that his sister PW2 borrowed an amount ofRs.1000/- from the appellant as hand loan earlier and on the dateof trap he gave an amount of Rs.800/- to the appellant stating it tobe the repayment of hand loan, which his sister borrowed and theappellant received the same. PW-2 also stated in her evidencethat she borrowed an amount of Rs.1000/- from the appellant andafter some time she repaid the said loan through her brother PW-1.

8. Under section 20 (1) of the Act when the recovery of

8. Under section 20 (1) of the Act when the recovery of tainted amount from the possession of the accused is proved bythe evidence on record and if it is found to be voluntarilyaccepted it becomes obligatory on the part of the court to draw alegal presumption against the accused to the effect that theaccused as accepted the bribe amount as motive or reward asmentioned in Section 7 of the Act and then the burden shifts onthe accused to rebut the presumption. The burden required fordischarging the presumption may not be of the standard of proofbeyond all reasonable doubt but of the standard of preponderanceof probability. The defence raised by the accused thereforeshould appear to be probable. The mere explanation given by theaccused is not enough but the explanation must be supported bythe circumstances which probablise the defence theory put forthby the accused.

9. In the instant case, as already said, PW-2 the sister ofPW-1 was a cooli, earning Rs.20/- per day. The appellant wasAssistant Engineer in the A.P. State Housing Corporation,Narsampet, Warangal district. His advancing hand loan ofRs.1000/- to PW-1 is most unlikely. Further in his evidence, PW-1 admitted that he had no disputes with the appellant. Therefore, it cannot be said that PW-1 falsely involved the appellant in acase of graft on account of his motive or ill-will. His versionbefore the court was that on the advise of some body to theeffect that if the complaint is given against the appellant to theAnti-Corruption Bureau he would get the voucher for theremaining cement bags is not at all convincing. It would appearthat after the trap, PWs.1 and 2 were won over by the appellantand thus they gave a total different version to which they gavebefore Investigating Officer, while their statements were recordedunder section 161 Cr.P.C. and before the Magistrate when theirstatements were recorded under section 164 Cr.P.C. Admittedlyofficial favour was pending on the date of trap with the appellant.There was no enmity between PW-1 and the appellant. PW-1admits that he gave the complaint against the appellant to theAnti-Corruption Bureau. The evidence of PW-4 the mediator andPW-6 the Investigating Officer discloses that when the appellantwas asked by the Investigating Officer to produce the amountreceived from PW-1 he went inside bed room, got a cartoon box,took out bundle of notes from telephone address book of 50[th]Annual report 1997-98 of the Great Eastern Shipping Company Limited and handed over the amount to the mediator. If really theamount received by the appellant was towards repayment of loan,there was absolutely no need for him to secret the amount. Thedefence therefore taken by the appellant that he received theamount as repayment of loan made by PW-2 through PW-1 doesnot stand to reason and the said defence theory does not inspireconfidence of the court. Therefore, in the instant case, thelearned trial court rightly drew presumption against the appellant-accused as aforesaid under section 20 (1) of the Act and theappellant-accused failed to displace the said presumption byshowing the circumstances, which probablise his version. Theconviction and sentence passed by the learned trial court againstthe appellant therefore do not call for any interference in thepresent appeal. The appeal is therefore dismissed.

________________________JUSTICE R. KANTHA RAO.31/12/2012I s L

N B: LR COPY TO BE MARKED.

B/O. I s L

CIRCULATION No.Date:31/12/2012Court Master: I s LComputer No.43