CRLA/639/2006 of N. Sankarappa, Vs The State of A.P., on 31 December 2014

JUDGMENT:

This Criminal Appeal is preferred by the Accused Officer(AO) aggrieved by the judgment dated 25.04.2006 in C.C.No.13of 2002 passed by learned Additional Special Judge for SPE &ACB Cases, City Civil Court Hyderabad convicting him for theoffences under Sections 7 and 13(1)(d) r/w 13(2) of Preventionof Corruption Act, 1988 (for short “P.C Act”) and sentencing himto undergo R.I for a period of two years and to pay a fine ofRs.2,000/- and in default to suffer SI for sixmonths on twocounts with a direction that the substantive sentences ofimprisonment under both counts shall run concurrently.

2) The factual matrix of the case is thus:

a)AO—N.Sankarappa worked as Agriculture Officer inKalyandurg Mandal, Ananthapur District during 2001. Accordingto prosecution, O.Sreekanth Reddy—complainant (PW1) who isrunning fertilisers business under the name and styleM/s.Madhu Fertilizers, Kalyandurg, Ananthapur Districtsubmitted applications for licence renewals of fertilizers andseeds on 27.08.2001 and 01.09.2001 respectively. In the firstweek of October, AO returned the applications of PW1 withsome remarks through his messenger. PW1 after complying allthe remarks resubmitted the applications on 09.10.2001requesting AO to renew the licences. At that time AO demanded a sum of Rs.6,000/- as bribe and threatened unless he pay thedemanded amount, he would return the applications of licencerenewals with some more remarks. When PW1 expressed hisinability to pay such huge amount, AO reduced the amount toRs.5,000/- and directed him to hand over the demanded bribeon 11.10.2001 at his residence.

b)Unwilling to pay bribe, PW1 submitted Ex.P.1—complaint to DSP, ACB, Ananthapur (PW6) on 10.10.2001 at6:30 pm, who registered the same as a case in Cr.No.5/ACB-ATP/2001 on 11.10.2001 at 12:30 pm after conducting discreetenquiries and successfully laid a trap against AO on 11.10.2001at his residence. On completion of investigation, charge sheetwas laid against AO.

c)On appearance of AO, charges under Sections 7 and13 (1)(d) r/w 13(2) of P.C. Act were framed against him and trialwas conducted.

d)During trial, PWs.1 to 6 were examined and Exs.P1 toP11 were marked and MOs.1 to 6 were exhibited on behalf ofprosecution. D.Ws.1 to 4 were examined on behalf of defence.

e)The trial Court on appreciation of evidence held thatprosecution proved the guilt of the accused beyond reasonabledoubt and accordingly convicted the AO, as stated supra.

Hence, the appeal by AO.

3) Heard arguments of Sri T.Bali Reddy, learned senior counsel representing for Sri R.Balakrishna Rao, learned counselfor appellant/AO and Sri M.B.Thimma Reddy, learned SpecialPublic Prosecutor (Spl.P.P.) for ACB cases.

4 a) Impugning the judgment learned senior counsel firstlyargued that the charges being under Sections 7, 13(2) r/w(13(1)(d) of PC Act, the prosecution must by reliable evidence provetwo vital ingredients i.e. demand and acceptance of bribe todeserve for drawing mandatory presumption under Section 20of PC Act. Without proving the demand the prosecution cannotsupplicate for conviction merely on the strength of recovery oftainted amount from the possession of accused. On thisprinciple he relied upon the following decisions.

1. B.Jayaraj vs. State of Andhra Pradesh[[1]]

2. Banarsi Dass vs. State of Haryana[[2]]

Referring the above legal position, learned senior counselargued that in this case absolutely there is no tangible evidenceto prove the demand and acceptance of bribe since PW1—thecomplainant has not stated anything positively and on the otherhand his case was that he was misled by one Gopal whogoaded him to give a false compliant against AO and upon his ill-advise he gave the complaint as if AO demanded him bribeeven though in reality AO did not solicit him for bribe. Even onthe aspect of acceptance of bribe also the version of PW1 is thathimself and Gopal went to the residence of AO in his absence

on the date of trap and Gopal implanted the money on the tableand they sulked away. Learned senior counsel vehementlyargued that in view of such revelation of PW1 it is crystal clearthat PW1 did not support prosecution case either on the aspectof demand or acceptance of bribe and except PW1 admittedlythere was none other who has witnessed the demand oracceptance of bribe by AO. The mediators and TLO were notthe direct witnesses for either of the two ingredients. That beingthe nature of evidence adduced by prosecution, he argued, trialCourt ought to have emphatically held that prosecution failed toprove its case but strangely trial Court convicted the accusedbasing on the hostile evidence of PW1 on some surmises.

b) Secondly, commenting on the aspect of drawingpresumption under Section 20 of PC Act, learned senior counselargued that since the prosecution utterly failed in proving thedemand and acceptance there is no room for drawingmandatory presumption basing on mere recovery of taintedamount in the house of AO and even wildly assuming thatrecovery is sufficient to draw a presumption, still the AO couldsuccessfully rebut the presumption by showing probabilitiesthrough the evidence of DW4 to the effect that AO was innocentand he just returned home and surprised by finding the amounton the table and at that moment, the trap party surrounded himand thus he was innocent. Learned senior counsel submittedthat it is a trite under criminal jurisprudence that accused neednot prove his innocence to the hilt, but suffice to show by preponderance of probabilities. On this legal proposition herelied upon the following decision:

.C.M.Girish Babu v. CBI, Cochin, High Court of Kerala[[3]]Learned senior counsel thus prayed to allow the appeal.

5) Per contra, opposing the appeal learned Spl.P.P. firstlyargued that merely because PW1 did not support theprosecution case on some vital aspects and showed volte-facethat was not the end of the matter and on the other hand Courtcan, as it rightly did, accept the admissible portion of hisevidence in corroboration of other reliable witnesses and in theinstant case, the trial Court having undertaken such a judicialexercise, could find that despite PW1 turned hostile due to hisback ground adjustment with AO, his admissible portion ofevidence coupled with the evidence of other witnesses provedguilt of the accused. Learned Spl.P.P. argued that though AOand PW1 connived and brought forth the non-existent personviz. Gopal, they could not substantiate it and therefore, the trialCourt rightly rejected the alleged influence of said Gopal overAO in lodging complaint and implicating AO. He submitted thatthe judgment of the trial court does not suffer from any perversityin appreciation of evidence and that there were no merits in theappeal. He thus prayed to dismiss the appeal.

6) In the light of above rival arguments, the point fordetermination in this appeal is:

“Whether judgment of the trial Court is factually and legallysustainable?”

7 a)POINT: The AO in this case was charge sheeted for theoffences under Sections 7, 13(1) (d) r/w 13 (2) of PC Act. Hence,before scrutinizing the merits of the appeal in the light of rivalarguments, it is obligatory on this Court to ruminate theingredients that have to be established by the prosecutions toprove the aforesaid two charges.

b) Reminding the duty of prosecution, the Apex Court in arecent decision in the case of B.Jayaraj (1 supra) has observedthus:

“In so far as the offence Under Section 7 is concerned, it isa settled position in law that demand of illegal gratification issine qua non to constitute the said offence and mererecovery of currency notes cannot constitute the offenceUnder Section 7 unless it is proved beyond all reasonabledoubt that the accused voluntarily accepted the moneyknowing it to be a bribe. The above position has beensuccinctly laid down in several judgments of this Court. Byway of illustration reference may be made to the decision inC.M. Sharmavs. State of A.P. (2010) 15 SCC 1= AIR 2011SC 608 = 2011 AIR SCW 297 and C.M. Girish Babu v.C.B.I. (2009) 3 SCC 779 =AIR 2009 SC 2022 = 2009 AIRSCW 1693.”

The Supreme Court further observed thus:

“…Mere possession and recovery of the currency notesfrom the accused without proof of demand will not bringhome the offence Under Section 7. The above also will beconclusive in so far as the offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demandfor illegal gratification(emphasis supplied), the use of corrupt or illegal means or abuse of position as a publicservant to obtain any valuable thing or pecuniary advantagecannot be held to be established.”

Thus, in the above decision the Honourable Apex Courtemphatically laid down that for establishing the offences underSections 7 and 13(1)(d)(i) (ii) the prosecution shall by cogentevidence establish the two vital ingredients i.e. (i) demand ofillegal gratification other than legal remuneration and (ii)voluntary acceptance.

c) Then, drawing of presumption under Section 20 of PC Actis concerned, there is a legal dichotomy as to whether theprosecution is required to prove demand to draw the saidpresumption or not.

d) In C.K.Damodaran Nair v. Govt. of India[[4]]referred by the trial Court, the Apex Court opined that demand aspect neednot be proved. It observed thus:

“Para 11: From a combined reading of S. 161 I.P.C. andSection 4(1) of the Act it is evident that if, in the instantcase, the prosecution has succeeded in proving that theappellant was a public servant at the material time and thathe had 'accepted' or 'obtained' Rs.1,000/- from PW9 asgratification not only the first two ingredients of the formerwould stand proved but also the third, in view of thepresumption under the latter which the Court is bound todraw unless, of course, the appellant, in his turn, hassucceeded in rebutting that presumption. According toShorter Oxford Dictionary 'accept' means to take or receivewith a 'consenting mind'. Obviously such a 'consent' can beestablished not only by leading evidence of prior agreementbut also from the circumstances surrounding the transactionitself without proof of such prior agreement, If an acquaintance of a public servant in expectation and with thehope that in future, if need be, he would be able to get someofficial favour from him, voluntarily offers any gratificationand if the public servant willingly takes or receives suchgratification it would certainly amount to 'acceptance' withinthe meaning of Section 161 I.P.C. It cannot be said,therefore, as an abstract proposition of law, that without aprior demand there cannot be 'acceptance'.”

Thus, in the above decision it was held that acceptance of illegalgratification other than legal remuneration by the accused with aconsenting mind is sufficient to draw mandatory presumptionunder Section 20 of PC Act and for that purpose prior demandneed not be established. However, it appears in the subsequentdecisions the above view was not followed.

e) In V.Venkata Subbarao vs. State rep. by Inspector of Police, A.P.[[5]]another Division Bench (Two HonourableJudges) of Supreme Court observed on the same aspect asfollows:

“Submission of the learned Counsel for the State thatpresumption has rightly been raised against the appellant,cannot be accepted as, inter alia, the demand itself had notbeen proved. In the absence of a proof of demand, thequestion of raising the presumption would not arise. Section20 of the Prevention of Corruption Act, 1988 provides forraising of a presumption only if a demand is proved.”

In the above case it was emphatically laid down thatwithout proof of demand the question of raising presumption 20of PC Act, 1988 would not arise.

f) In B.Jayaraj’s case (1 supra) Full Bench of Honourable Apex Court has held thus:

“In so far as the presumption permissible to be drawn UnderSection 20 of the Act is concerned, such presumption canonly be in respect of the offence Under Section 7 and not theoffences Under Section 13(1)(d)(i)(ii) of the Act. In anyevent, it is only on proof of acceptance of illegal gratificationthat presumption can be drawn Under Section 20 of the Actthat such gratification was received for doing or forbearing todo any official act. Proof of acceptance of illegal gratificationcan follow only if there is proof of demand. (emphasissupplied) As the same is lacking in the present case theprimary facts on the basis of which the legal presumptionUnder Section 20 can be drawn are wholly absent.”

So, in the latest judgment, the Full Bench of Honourable ApexCourt observed that proof of acceptance of illegal gratificationcan follow only if there is proof of demand and only when thesetwo ingredients are established, presumption under Section 20of P.C Act would follow.

8) Having regard to the above legal position, the appeal is tobe decided. Admitted facts are that the AO was the AgriculturalOfficer, Kalyandurg Mandal during the relevant period of thecase and PW1—the complainant was the proprietor ofM/s.Madhu Fertilizer, Kalyandurg and PW1 submittedapplications for renewal of fertilizers and seeds licence on27.08.2001 and 01.09.2001 respectively to the AO. It is afurther admitted fact as spoken by PW3—Assistant Director ofAgriculture that PW3 is the licensing authority to issue licence tothe fertilizers dealers in his jurisdiction for a period of three yearson the recommendation of concerned Mandal Agricultural

Officer whereas the Joint Director of Agriculture is the authorityto issue seed licence on the recommendations of concernedMandal Agricultural Officer for a period of three years. In theinstant case, in respect of Ex.P2—applications of PW1 therecommending authority is the AO being concerned AgriculturalOfficer. Then, it is the case of prosecution that at the firstinstance AO returned the applications of PW1 on some queriesand thereafter on 09.10.2001 when PW1 met AO and re-submitted his applications, it is alleged, AO demanded illegalgratification of Rs.6,000/- for recommending his applications tothe concerned authorities and on the request of PW1 reducedthe bribe to Rs.5,000/- and threatened that he would return theapplications if the amount was not paid. Unwilling to pay bribe,PW1 gave the complaint to PW6 who laid trap against AO on11.10.2001 with the help of two mediators i.e. PW2 and LW3.

In the light of above facts, it has to be seen whetherprosecution could establish demand and acceptance of bribe byAO.

9) Pendency of official favour is concerned, PW1 submittedEx.P2—licence renewal applications to AO, who was theAgricultural Officer. It is contended that AO was onlyrecommending authority but not licence issuing authority andtherefore, no official favour was pending with him to demand anybribe. It must be said that this argument has no teeth to accept.AO may not be an issuing authority but as already deposed byPW3, fertilizer and seed licenses will be issued by the concerned authorities only on the favourable recommendationsof the AO. Therefore, the role of AO is not such an insignificantone so as not to demand bribe. AO did not challenge theevidence of PW1 that on 09.10.2001 PW1 met him at his houseat 7.30 PM and re-submitted the applications. In fact, after trapthe TLO seized Ex.P2 file containing the applications from theresidence of AO which infers that the applications were pendingwith AO by the date of trap. Therefore, indeed official favourwas pending with AO to demand bribe.

10) Then demand is concerned, it must be said that PW1 hasnot supported the prosecution case. His version was that on09.10.2001 when he went to the office of AO and met him andre-submitted the applications, AO received them and promisedthat he would do the job and for some days AO could not go tooffice. Thereafter, one Gopal informed PW1 that AO would notdo his work unless money was paid to him and further told hewould get the work of PW1 done at Ananthapur. On thisassurance the said Gopal took PW1 to Ananthapur and gotpresented Ex.P1—complaint to ACB police on 10.10.2001. So,as per PW1 AO did not demand him bribe but on the advise ofGopal he gave a false compliant to ACB police. Basing on theaforesaid evidence of PW1 it is contended that prosecutionfailed to prove demand aspect. Hence, probative value of hostileevidence of PW1 is to be scrutinized. Before that it is pertinentto mention the principle laid down by the Apex Court onappreciation of hostile evidence.

a) In a latest judgment in Paulmeli and another vs.State ofTamil Nadu, Traffic Inspector of Police(MANU/SC/0505/2014)), Honourable Apex Court happened todiscuss its previous judgments on the above subject andobserved thus:

“Thus, the law can be summarized to the effect that theevidence of a hostile witness cannot be discarded as awhole, and relevant parts thereof which are admissible inlaw, can be used by the prosecution or the defence.”

b) With reference to the above precedential jurisdictionwhen the evidence of PW1 is put under threadbare analysis,despite his turning hostile not supporting prosecution case onthe aspect of demand, still some interesting and usefulmaterial emanates from his evidence in the cross-examinationwhich is worth perusal.

In the cross-examination by Special P.P. he admitted thus:

“It is true I have given a complaint to DSP, ACB on10.10.2001. DSP read my said complaint and asked me tocome to his office with the amount of Rs.5,000/- on11.10.2001 at 4 PM. It is true accordingly I went to DSPoffice with the said amount of Rs.5,000/- consisting of two500 rupee notes and forty 100 rupee notes and found in theDSP in office – DSP two mediators and other officialspresent. The DSP introduced me to the mediators ascomplainant. It is true when a copy of compliant was givento mediators, they read and enquired with me whether I havewritten it, I answered it affirmatively.”

The above fact was corroborated by PW2—the mediator alsowho deposed thus:

“We (mediators) met Inspector, ACB and the DSP, ACB intheir chambers at 4.15 PM. Then the DSP introduced to usone Srikanth Reddy as complainant and handed over thecompliant to us. We read the copy of complaint and askedSrikanth Reddy whether the matter stated therein are corrector not and put our initials. Ex.P4 is the said copy ofcompliant which bears my signature.”

Then, a perusal of Ex.P4 which is a copy of Ex.P1—complaint would reveal that AO demanded bribe. Therefore,despite PW1 turning hostile, his earliest admission before themediators was to the effect that AO demanded him bribe andthat was why he presented Ex.P1—complaint to ACB police. PW2 is an independent mediator and nothing could bebrought on record for his motive to speak false hood. Therefore, the admission of PW1 gets ample corroborationfrom the reliable evidence of PW2 on the aspect of demand tohold that AO has solicited bribe from PW1. At this juncture theargument of defence side is that since PW1 knowinglypresented a false complaint against AO under the influence ofGopal, there was nothing strange if he affirmed the contentsof Ex.P1 to be true before mediators, though they wereindeed false. Though this argument apparently sounds logicalbut will not stand for scrutiny. It is true that it is the version ofPW1 in his chief examination that he presented Ex.P1 withfalse contents under the influence of one Gopal. If he werereally influenced by Gopal, his affirmation before themediators would not be strange and in that case such

affirmation cannot be taken as proof of admission by AO. So,truth or falsity of admission pivots on the existence of Gopal.It is pertinent to note that in his written statement also AOreferred about Gopal stating that the said Gopal was apiravikar in his office and he checked and prevented him andso eventually he nursed severe grouse against him (AO) andmisused the complainant and falsely involved him in this case.He further stated that he has close contacts with ACB officersand he was their informant. He deliberately misguided thecomplainant as AO found some defects and omissions duringscrutiny and asked him to comply the objections and Gopaltook full advantage of it and misguided on account of his owngrouse. Thus both PW1 and AO proclaimed as if one Gopalwas in existence and he is a piravikar and was an informer toACB police and he ran the show. We find in the evidence ofPW1 as if Gopal and PW1 went to the residence of AO andGopal planted money on the table in the absence of AO. So,in this context, billion dollar question is whether such Gopalwho is said to have incited PW1 is in existence. It isinteresting to note that though PW1 claimed that on10.10.2001 Gopal took him to ACB office and got presentedcomplaint and DSP told Gopal to bring Rs.5,000/- and on thenext day i.e. 11.10.2001 both himself and Gopal went to theACB office and attended pre-trap proceedings and DSPinstructed him (PW1) to give the amount to whomsoever Gopal suggested and even went to the extent of saying thathimself and Gopal started on one motor cycle and Gopalplanted the money in the residence of AO in his absence, wedo not find support from other witnesses regarding aboveversion of PW1. PW2—the independent mediator and PWs.5and 6 never stated about the presence of Gopal along withPW1 at any point of time. No suggestion was given to PW2about the presence of Gopal during crucial period of pre-trap,trap and post-trap proceedings. When it was the case of AOin his written statement that Gopal was the cause for falsecomplaint, he should have suggested about the presence ofGopal during the relevant time. Further, the AO did not try toelicit through DW3 who is none other than the attender in hisoffice about the existence of one Gopal who is said to bepiravikar in his office and whom AO chided. DW3 also did notdepose about Gopal. In these circumstances, basing on thesole evidence of PW1, it is difficult to believe about theexistence of said Gopal and his influencing PW1. Therefore,on a conspectus of facts and evidence the existence of Gopaland his alleged influencing PW1 cannot be believed.Consequently, the demand made by AO as is spelt out inEx.P1 whose contents were avouched by PW1 before themediators can be believed.

11) Then acceptance is concerned, as stated supra, again itis the version of PW1 that himself and Gopal went to the residence of AO in his absence and Gopal planted money onthe table. This version of PW1 will not have legs to standwhen the existence of Gopal is highly doubtful, as discussedsupra. So, when implant by fictitious person—Gopal isomitted, the only other possibility left over is PW1’sapproaching AO and paying money on his further demandbecause MO5—currency notes which were found in the houseof AO were none other than those notes which were smearedwith phenolphthalein powder and given to PW1 by PW6—TLOto pay to AO on his further demand and further, the serialnumbers of MO5—notes were tallied with the serial numbersof the notes mentioned in Ex.P5—first mediators report.Hence, there was no possibility of those notes finding place inthe house of AO if not paid by PW1.

a) Then the explanation of AO projected through thecross-examination of prosecution witnesses, his writtenstatement and through the evidence of DW4 is to the effectthat he did not know how the amount appeared in his houseand after returning home he found the amount on the tableand holding the same he was thinking surprisingly as to whokept the amount there and in the meanwhile trap memberscame and caught him. This explanation was not offered byAO during post trap proceedings and hence it did not findplace in Ex.P7—second mediator’s report. If it is his case thathis explanation was not incorporated in Ex.P7 he should not have acknowledged the receipt of copy of Ex.P7 or atleast heshould have received the copy under protest or he shouldhave made a compliant before the higher authorities of ACBor before the trial Court at the earliest opportune time. Thathe did none of the acts but coolly endorsed on Ex.P7 andreceived copy of proceedings containing pages 1 to 9indicates that true facts relating to his conduct was onlymentioned in Ex.P7. Therefore, it must be held that theexplanation offered by him was only an after thought. Theevidence of DW4 being the daughter and interested witnesswill not help his case in view of his supine inaction againstEx.P7 PWs.2 and 6 have deposed about the conduct of AOduring the post-trap events in corroboration to Ex.P7. PW2deposed that on receiving signal they entered the house andfound AO sitting in the chair holding cash in his right hand andafter subjecting hands of AO to chemical test when the DSPasked AO about the notes whatever reply was given by AOwas incorporated in Ex.P7 proceedings. When Ex.P7 isperused, it is mentioned therein as if AO stated that amountwas received by him from the complainant. Therefore, in spiteof PW1 turning hostile, prosecution with the help of otherevidence and circumstances could establish the factum of AOreceiving bribe from PW1 and the explanation offered by AOwas not convincing. The decisions relied upon by the appellantwill not help his case.

12) So, on a conspectus of facts, circumstances andevidence on record, I hold that prosecution could establish thecharges levelled against AO and trial Court rightly convictedthe accused for the offences under Sections 7 and 13(1)(d)r/w 13(2) of PC Act.

13) In the result, this Criminal Appeal is dismissed byconfirming the conviction and sentence passed by the trialCourt in C.C.No.13 of 2002. Consequently, appellant/AO isdirected to surrender before the trial Court on or before22.01.2015 and on such surrender, the trial Court shall commithim to jail for serving sentence.

As a sequel, miscellaneous applications pending, if ay,shall stand closed.

_________________________

U. DURGA PRASAD RAO, J

Date: 31.12.2014

Note: L.R. Copy to be marked: Yes / NoMurthy [1]2014 (2) ALD (Crl.) 73 (SC)2014 (2) ALD (Crl.) 73 (SC)

[2]2010 Crl.L.J.2419 = 2010 (1) ALD (Crl.) 924 (SC)2010 Crl.L.J.2419 = 2010 (1) ALD (Crl.) 924 (SC)

[3]AIR 2009 SC 2022 (1)AIR 2009 SC 2022 (1)

[4]AIR 1997 SC 551AIR 1997 SC 551

[5]2007 Crl.L.J. 72007 Crl.L.J. 7