B.N. Rao Nalla
1. Aggrieved by the conviction and sentence imposed on the appellant - accused officer for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the Act") in C.C. No. 3 of 1999 dated 29-03-2004 by the learned Special Judge for SPE & ACB Cases, Nellore, appellant preferred this Criminal Appeal. Appellant was prosecuted for the offences under Sections 7, 13(2) read with 13(1)(d) of the Act.-
2. The case of the prosecution, in brief, is that the appellant was working as Mandal Revenue Inspector in the Mandal Revenue Office, Cheerala, Prakasam District in 1997. PW.1 - de facto complainant was having about Ac.0-15 cents of land in Cheerala and the same was divided between himself and his mother. Both of them have got half of the land sout of Ac.0-15 cents i.e. 71/2 cents each. PW.1 applied to the Andhra Pradesh Urban Development Housing Corporation, Ongole (for short "Corporation") seeking loan for construction of a house. The Corporation sanctioned Rs. 15,000/- under M.L.A''s. quota and released Rs. 5,000/- towards first installment of the loan. Thereafter, PW.1 constructed the house in the proposed site up to slab level. The Corporation had to release Rs. 6,500/- towards second installment and the Corporation asked him to obtain property possession certificate from the Mandal Revenue Officer, Cheerala and accordingly PW.1 submitted an application to the Mandal Revenue Officer, Cheerala on 30-03-1998 under Ex. P-1 along with an empty form of property possession certificate under Ex. P-2. On the following day i.e. on 31-03-1998, the Mandal Revenue Officer visited the house of PW.1 and on the next day, PW.1 went to the office of the Mandal Revenue Officer, Cheerala and asked the Mandal Revenue Officer about issuing possession certificate who in turn told him that the relevant file was with the appellant - Mandal Revenue Inspector working in the same office and he had to conduct enquiry and file report about his (PW.1''s) possession over the property. Then, PW.1 tried to approach the appellant for 2 or 3 times in that regard but could not as he was not available in the office on all the occasions and ultimately PW.1 met the appellant in the office on 30-04-1998 and enquired about the process of his file. Then, appellant advised PW.1 to approach him at his (appellant''s) residence, as such, on 03-05-1998, he (PW.1) visited the house of the appellant; then the appellant allowed him inside, made him to sit in the veranda, went inside the house and came into the veranda 15 minutes thereafter, and then demanded Rs. 1,500/- (Rupees fifteen hundred only) as bribe amount for processing his file and when PW.1 expressed his inability to pay, he reduced it to Rs. 1,200/-. However, with an intention to avoid payment, PW.1 left the place. On the same day i.e. on 03-05-1998, as per the advice of an Andhra Jyothi Correspondent, PW.1 visited the A.C.B. officials at Ongole and lodged Ex. P-4 complaint before the Inspector of Police, A.C.B, who in turn registered a case against the appellant in Crime No. 9/ACB-NPK/98, issued Ex. P-18 FIR and during the Intervening night of 4/5-5-1998 pre-trap proceedings were conducted and the same were concluded by 4.30 a.m. under Ex. P-8 proceedings. Thereafter, the trap party consisting of PWs.1, 2 and 7 and some constables proceeded in a private van from Ongole to Cheerala by 6-15 a.m. The house of the appellant was located on the first floor of a local building. PW.1 visited the appellant at his house and at that time he was wearing a lungi. The appellant asked PW.1 whether he brought the bribe amount. Then PW.1 handed over the bribe amount to him. The appellant took the bribe amount, put it in his left side shirt pocket, prepared a statement and asked PW.1 to get the same attested by his mother. Thereafter, PW.1 came out of the house of the appellant and gave prearranged signal to the trap party, which recovered the tainted bribe amount from the appellant. The phenolphthalein test conducted on the right hand fingers of the appellant proved positive, his explanation was recorded and the post trap proceedings were recorded under Ex. P-14. After completion of the investigation by PW.7 -the Deputy Superintendent of Police, A.C.B., the Inspector of Police, A.C.B. - PW.8 filed charge sheet after obtaining necessary sanction from the Government under Ex. P-17 sanction proceedings.
3. The learned Special Judge has framed the charges against the accused under Sections 7 and 13(2) read with Section 13(1)(d) of the Act and the appellant has pleaded not guilty for the said charges.
4. The prosecution, in order to prove its case, had examined PWs.1 to 8 and got marked Exs. P-1 to P-18 and MOs. 1 to 8 on its behalf, whereas DWs.1 to 3 were examined and Exs. D-1 to D-3 were marked on behalf of the defence. However, Exs. X-1 to X-3 were marked through Court.
5. The learned Special Judge considering both oral and documentary evidence, found the appellant guilty of the offences under Sections 7 and 13(2) read with Section 13(1)(d) of the Act and accordingly convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, in default of payment of fine to suffer simple imprisonment for a period of one month, for the offence u/s 7 of the Act and to undergo simple imprisonment for one year and also to pay a fine of Rs. 2,000/-, in default of payment of fine to suffer simple imprisonment for two months, for the offence u/s 13(2) read with 13(1)(d) of the Act directing to run both the sentences concurrently. Aggrieved by the said conviction and sentence, the appellant preferred this appeal assailing the same.
6. Now the point that arises for consideration is whether the trial has committed any error or irregularity in finding the appellant guilty of the offences charged with?
7. The plea of the appellant was one of denial. He stated that the tainted bribe amount was planted in his shirt pocket that was lying in the veranda of his house where PW.1 sat for 15 minutes when he (appellant) went inside his house, as stated in his evidence by PW.1 himself.
8. It is the case of the appellant that as per the evidence of PW.1 himself, as soon as the tainted bribe amount was handed over to him (appellant), he accepted it with his right hand and kept it in his left front side shirt pocket and when pre-arranged signal was given to the trap party, they entered the house of the appellant and PW.7 (the DSP ACB) asked him (appellant) to remove the amount and accordingly he took out the amount and gave it to PW.7 (the DSP ACB). In this connection, it is contended that generally when the accused receives tainted bribe amount, both the hand fingers of the accused will be subjected to phenolphthalein test before the amount is recovered from him. However, in this case, the appellant was asked by PW.7 (the DSP ACB) intentionally to remove the money from his shirt pocket, so that his right hand fingers are proved positive and that when he removed the amount from his shirt pocket without knowing that it was tainted bribe amount, the fingers of his both hands were subjected to sodium carbonate solution test and his right hand fingers proved positive. Therefore, it is contended that the alleged bribe amount was planted without the knowledge of the appellant and he has removed the same from his shirt pocket without knowing that it was the tainted bribe amount and the same proves innocence of the appellant.
9. Referring to the cross-examination of PW.1, it is contended by the learned counsel for the appellant that having admitted that when he (PW.1) went to the house of the appellant on 05-05-1998, he (appellant) was wearing only lungi, himself had opened the grills of the veranda, he (PW.1) was made to sit on the sofa-cum-bed in the veranda for about 15 minutes as the appellant went inside during that 15 minutes time and later he came in to varanda. Realizing the said truth, PW.1 changed the tone and tenure of what he has admitted and stated that when he went to the house of the appellant on 05-05-1998, appellant was lying on the floor in the hall and seeing him outside the grills of the veranda, appellant went inside the house asking him to wait for sometime and then came out after 15 minutes and then opened the grills of the veranda. It is further contended that the evidence of PW.1 is not reliable since he has improved his version in order to conceal the fact that taking advantage of absence of the appellant for about 15 minutes and since his shirt was lying in the veranda, he had conveniently planted the tainted bribe amount in his shirt pocket.
10. It is also contended that considering the normal course of human conduct, if at all PW.1 went to the house of the appellant to pay the bribe amount, the appellant could have received the same and sent him off. However, it is in the evidence of PW.1 that when he went to the house of the appellant, he opened the grill door, made him to sit in the veranda for 15 minutes and thereafter appellant came there and asked him whether he brought the bribe amount, appears to be an after thought to improve the case of the prosecution. Therefore, it is contended that the evidence of PW.1 is untrustworthy.
11. In his cross-examination, PW.1 has stated that when he visited the appellant in his office for the first time on 30-04-1998, he was found talking to one T.D.P. Leader Subba Rao and one Fair Price Shop Dealer. In this connection, it is contended that the prosecution has failed to examine any of those two persons. Had they been examined, the factum of PW.1 visiting or not visiting the appellant at that time would have seen the light of the day because it is alleged that it was on 30-04-1998, appellant alleged to have asked PW.1 to see him at his residence on the following day. However, PW.1 is stated to have visited the house of the appellant on 03-05-1998.
12. When the remaining members of the trap party rushed to the house of the appellant, PW.7 (the DSP ACB) asked the appellant about the tainted amount given to him by PW.1, then appellant replied that he was not having any bribe amount; then on PW.7 (the DSP ACB) asking the appellant to remove the amount, he took out the amount and gave it to PW.7 (the DSP ACB). It was then PW.7 (the DSP ACB) asked PW.1 to go out of the house and he obliged. It is contended in this regard that generally the de facto complainant, who pays the tainted bribe amount to the appellant, is not allowed to be present during the post trap proceedings. However, the de facto complainant - PW.1 was allowed to stay till the time of recovery of tainted bribe amount from the appellant and the same is evident from the evidence of PW.1 himself that he was present at the time of PW.7 (the DSP ACB) asking the appellant as to receipt of bribe amount and his replying that he was not having any money. It is only thereafter when PW.7 (the DSP ACB) asked the appellant to remove the amount, he obliged the same by removing the amount and giving it to him. In this context, it is contended that PW.7 (the DSP ACB) intentionally and knowingly that the alleged bribe amount was planted in the shirt pocket of the appellant, asked him to remove the money since the currency notes were smeared with phenolphthalein powder and as he knows that unless the alleged bribe amount is touched by the appellant, his hand fingers would not prove positive in sodium carbonate solution test. Therefore, it is contended that PW.7 (the DSP ACB) having knowledge that the alleged bribe amount was planted in the shirt pocket of the appellant, which was lying in the veranda, has insisted the appellant to remove the money. The probability of the shirt of the appellant lying in the veranda is spoken to by none other than PW.1 himself as he has stated that when he visited the house of the appellant on the early hours of 05-05-1998, he was wearing only a lungi and no shirt was on his person.
13. So far as Ex. P-4 is concerned, it is contended on behalf of the appellant that PW.1 at one place has stated in his chief examination that he scribed Ex. P-4 complaint. However, in his cross-examination, he has stated in one breath that one constable got it written through him and that when he was scribing Ex. P.4, an ACB constable and an ACB Inspector were present. He also stated that he scribed Ex. P-4 consulting the ACB constable. Therefore, it is contended that no value should be attached to Ex. P-4 complaint since it is not known as to who is real author thereof. In one breath, PW.1 has stated that he scribed Ex. P-4 on his own and on the other he stated that he scribed it to the dictation of an ACB constable. Therefore, Ex. P-4 has got to lose its sanctity.
14. Ex. P-5 is the statement of PW.1 recorded u/s 164 Cr.P.C.; PW.1, in his statement before the Additional Judicial Magistrate of First Class, Cheerala, has given different version as to his visiting the appellant; wherein he stated that on 01-05-1998 at 6.30 a.m. he had been to the appellant''s residence and in fact when he met him there he asked why he had come there and for what purpose. In this connection, it is contended that if at all the appellant had demanded any illegal gratification from PW.1, he would not have asked him as to why he had come to his house and for what purpose and that the same goes to show that the appellant never demanded the alleged bribe amount and/or any amount from PW.1 since he has stated before the Court, during the course of trial, that the appellant had demanded the bribe amount on 03-05-1998 which he has not stated before the Magistrate while recording his statement u/s 164 Cr.P.C.
15. It is to be seen that though PW.1 has stated that he was present when the appellant was asked by PW.7 (the DSP ACB) to remove the money from his pocket, it is in the evidence of PW.2 that PW.1 was not present at that time since he was asked to go down the stairs and come when called. Therefore, it is contended that the presence of PW.1 at the time of the alleged recovery of tainted bribe amount is doubtful. As per the evidence of PW.2, the fingers of both the hands of the appellant were subjected to sodium carbonate solution test. PW.7 (the DSP ACB) asked him to remove the bribe amount from his pocket, whereas PW.1 has stated to the contrary. Therefore, it is emphasized that PW.7 (the DSP ACB) with full knowledge of the alleged bribe amount being planted in the shirt pocket of the appellant had asked him to remove the same with an intention to see that his right hand fingers would come into contact with the tainted currency notes and thereby his right hand fingers would prove positive when subjected to sodium carbonate solution test.
16. It is in the evidence of PW.3 that by 01-04-1998 PW.1 was not known to him, however, it is in the evidence of PW.1 that on 01-04-1998; he had been to the office of the Mandal Revenue Officer, Cheerala and enquired about his property possession certificate and the Mandal Revenue Officer informed him that the relevant file was with the appellant (Mandal Revenue Inspector) working in the same office and that he had to conduct enquiry and file report about the property being in his (PW.1''s) possession. In this connection, it is contended that the evidence of PW.3, a responsible officer (Incharge M.R.O.), falsifies the evidence of PW.1 that PW.1 met PW.3 on 01-04-1998 and enquired about his property possession certificate and PW.3 informed him that the relevant file is with the appellant and he has to enquire and file the report recommending for issuance of possession certificate. In this regard, once again it is contended on behalf of the appellant that the evidence of PW.1 cannot be relied on and that he is not a reliable witness.
17. PW.4 is a formal witness. He is a surveyor, who surveyed the property of PW.1 and submitted Ex. P-12.
18. PW.5 is also a common witness, who has spoken about the procedure for obtaining the housing loan.
19. PW.6 is also a formal witness, who speaks about obtaining sanction from the Government to prosecute the public servant.
20. PW.7, the DSP ACB, Ongole, spoke only as to pre and post-trap proceedings and his investigation into the case till the time of laying charge sheet by PW.8 - Inspector of Police, ACB, Nellore, after receiving sanction orders from the Government on 17-04-1999.
21. PW.8 was the Inspector of Police, Ongote, who on receiving Ex. P-4 complaint from PW.1, had enquired into the antecedents of the appellant and sent report along with Ex. P-4 complaint to PW.7 (the DSP ACB), who had registered a case in Crime No. 9/ACB/NPK/98 dated 04-05-1998.
22. The evidence of DWs.1, 2 and 3 is to the effect that the character of PW.1 is of a doubtful one. Though PW.1 claims to be a law student at the relevant time, evidence of DWs.1 to 3 discloses that he was acting as a broker/agent to do the work of the persons in general subject to payment of money. He used to secure money by making false promises to secure some sort of ration cards and other certificates etc. He is also stated to be a person, who wanted to teach a lesson to the appellant as he had become "proudy". In their evidence, DWs.1 to 3 have clearly stated that PW.1 had falsely implicated the appellant. DW.3 even went a step ahead and stated that the appellant had informed him on an occasion that PW.1 had falsely implicated him by planting money in his shirt pocket while it was hanging to a hanger. Therefore, it is contended that PW.1 is not a reliable witness so also his evidence.
23. On the contrary, the case of the prosecution is as unfolded in Ex. P-18 - F.I.R. which was issued basing on Ex. P-4 complaint given by PW1. That, in the opinion of the trial Court, the evidence of PWs. 1, 2 and 7 coupled with the evidence of PWs.3 to 6 clearly proved that the appellant demanded and accepted the bribe amount from PW1. That, soon after the acceptance of bribe amount by the appellant, fingers of his both hands were subjected to chemical test and the solution in which his right hand fingers were tested, yielded positive result and post trap proceedings were recorded under Ex. P-14 panchanama. That, the appellant had also admitted about accepting the bribe amount from PW.1, as such, the burden shifts to him to show that the said amount was not accepted by him towards bribe for doing official favour. It is his duty to prove as to how he came into possession of the said amount. That, in view of the acceptance of the said fact by the appellant, provisions of Section 20 of the Act come into play. That, the appellant being a public servant had accepted gratification other than legal remuneration from PW.1 for doing official favour. Basing on a decision of the Apex Court in
24. Though the accused is not required to take his plea of defence at the earliest opportunity and which he may take at any stage of the proceedings including at the stage of cross-examination of the prosecution witnesses or at the time of his examination u/s 313 Cr.P.C., and if he offers his explanation subsequently, there is a possibility of offering the same as an after thought to cover up lapses on his part and that the trial Court in this regard was not wrong in considering that the failure on the part of the appellant to offer the explanation at an earliest opportunity weakens his defence. Hence, the trial Court is justified in not considering the subsequent explanation.
25. All the pleas taken by the appellant as defence appear to be an after thought in order to escape from the rigours and/or clutches of the law; That, if at all the tainted bribe amount was put in the shirt pocket of the appellant that was lying the verandah by PW.1 taking advantage of his absence for few minutes, the appellant ought to have known and/or ought to have gained the knowledge of presence of the currency notes in his shirt pocket while wearing the shirt and that itself is a matter of commonsense. That, as such, the plea of the appellant in this regard does not strike commonsense, and, as such, the same is unworthy of acceptance.
26. It is immaterial to go into the sanctity of Ex. P-4 complaint since PW.1 has categorically stated in his evidence that he has scribed the same with the help of an A.C.B. Constable.
27. It is common knowledge that persons resorting to corruption and corrupt and/or illegal methods in furtherance thereof, they act and talk differently to show that their actions in that regard are bona fide. That, the appellant appears to have acted in the same fashion on finding PW.1 having approached him at his residence by asking as to why he had come there; maybe with the intention that whoever is present in the vicinity should have a good impression of him. That, a corrupt person, in such circumstances, tries to act smart in order to show that nothing wrong was going on there at the relevant time.
28. That, a person may not be able to remember and reiterate certain facts more than once. It all depends on the facts of each case as well as the mental makeup of the person. Hence, PW.1 stating in his statement u/s 164 Cr.P.C. that the appellant asked him as to why he came there when he went to his residence to give bribe amount as demanded by him and saying the same at the other places is of no significance.
29. Further, the pleas of the appellant that he was not aware of the tainted amount being kept in his shirt pocket and that PW.7 (the DSP ACB) had asked him to remove the bribe amount from his pocket knowing that it was kept in his shirt pocket by PW.1 when the same was tying in the verandah, cannot be accepted since the same being not offered at the relevant time.
30. The case of the prosecution can be believed since PW.1 had an occasion in visiting the appellant in his office with regard to property possession certificate and the file concerned was pending with the appellant and the same is evident from the evidence of PW.3. The evidence of PW.3 in this regard supports the evidence of PW.1. Thus, there is every possibility that the appellant must have demanded and accepted bribe from PW.1 by abusing his official position in discharging his official duties to obtain a pecuniary advantage by corrupt and illegal means, and the same, in the opinion of the trial Court, was proved by the prosecution.
31. DWs.1 to 3 appear to have been examined by the appellant to show that PW.1 was not of a good character. However, their evidence is not supported by any material on record. Therefore, it has got to be said that the idea of getting DWs.1 to 3 examined on behalf of the appellant was an after thought. Their evidence does not inspire any confidence. They appear to have had grudge against PW.1 and have acted as per the dictates of the appellant to show that he was falsely implicated in this case.
32. In the facts and circumstances of the case and in the light of the above discussion and since minor variations in the evidence of PWs.1 and 2 are immaterial for disposal of this appeal, this Court is of the view that no sufficient grounds are made out to show that the trial Court has committed any error, irregularity or illegality in finding the appellant guilty of the offences charged with and as such the impugned judgment of the trial Court is not liable to be interfered with by this Court, and therefore, the appeal is liable to be dismissed. The point is accordingly answered. In the result, the Criminal Appeal is dismissed confirming the impugned judgment of conviction and sentence of the appellant in C.C. No. 3 of 1999 dated 29-03-2004 passed by the learned Special Judge for SPE & ACB Cases, Nellore.
