CASE NO.:
Appeal (crl.) 970 of 2000
PETITIONER:
V. Venkata Subbarao
RESPONDENT:
State represented by Inspector of Police, A.P.
DATE OF JUDGMENT: 12/12/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
Appellant herein was working as a Surveyor in the Mandal Revenue
Office. He was a military personnel.
Admittedly, a demand was made by a Mandal Revenue Officer
(MRO) of P. Bhemavaram village of Butchayyupate Mandalam in
Vishakhapatnam District for allowing P.W.3 (M. Subrahmanya Raju) to cut
and remove casurina trees. P.W.2-Amaraneni Ammarao sold the land in
question to P.W.3. He made a complaint before the Inspector of Police, Anti
Corruption Bureau alleging that he had purchased 4 acres of land with
casurina growth and the same was being objected by the MRO on the
premise that a part thereof belonged to the Government.
The MRO, allegedly, wanted determination of the said question and
restrained him from lifting any casurina growth. He met the said MRO on
the next day informing him that no part of the Government land was mixed
up with his land. Allegedly, a demand for a sum of Rs.5,000/- was made
from him by the MRO. While the talks were going on, the appellant,
allegedly, intervened and asked him to pay a sum of Rs.2,000/-. When he
again met the MRO, he was informed that he would not be permitted to
remove the casurina trees until the demanded amount was paid. On the basis
of the said complaint dated 11.12.1988, a purported pre-trap proceedings
started at 3 p.m. on 12.12.1988. The trap party consisting of 8 persons,
allegedly, started for the village of which Appellant was a resident. They
reached the village in the evening. The informant did not know the location
of the residential house of the appellant. According to P.W.2, an unknown
person had led them thereto. The said person examined himself as D.W.1
being Yannamsetti Appalanaidu and not by the prosecution. Offer of the
said sum of Rs.2,000/- was, allegedly, made to the appellant by way of
gratification, which he allegedly accepted. He is said to have been caught
red handed.
Apart from usual pleas, the appellant categorically took the plea of
false implication stating that he had animosity with the local M.L.A. Shri
Yeeri Naidu and one Shri Rama Murthy, the Surpanch of P. Bhimavaram
village. Admittedly, son of the appellant was working as an assistant to Shri
Yeeri Naidu. The said Shri Ram Murthy nurtured grudge against the
appellant for not granting D-Form pattas to him and his family members.
The raid was conducted at the instance of Shri Ram Murthy.
The learned Special Judge analysed the evidences brought on record
by the prosecution in great details. In his judgment, the learned Trial Judge
considered the matter from various angles, viz., (i) peculiar facts of the case;
(ii) nature and conduct of P.W.2-the complainant (who was held to be
wholly untrustworthy); (iii) the manner in which trap proceedings were
undertaken by the Anti Corruption Bureau and which were, thus, held to be
not reliable as it was brought on records that Shri Ram Murthy also
indirectly participated in the said trap proceedings and, in particular, P.W.2
was brought by him to the village; (iv) Although, the prosecution witnesses
categorically stated that the appellant, upon acceptance of the tainted
amount, counted the same with both of his hands, only fingers of one of his
hand turned pink; (v) the trap party came in and asked the A.O. to produce
the amount, which he denied to have accepted; and allegedly, at that time
three more people entered the house and stated that the amount was
available in one of the rooms; (vi) In Exhibit P.7 post trap panchanama, the
words 'from bed room corner, the cash has been picked up by A.O. and
handed over to the Inspector', has been interpolated; and (vii) there were
contradictions and inconsistencies in the evidences of the prosecution
witnesses, vis-`-vis, their statements before the Investigating Officer.
On an appeal made by the respondent, the High Court, however,
allowed the criminal appeal, principally relying on the provisions of Section
20 of the Prevention of Corruption Act, on the premise that the tainted
money had been recovered from the possession of the appellant. As regards
the prosecution case that the amount was meant to be given to the Mandal
Officer, the High Court opined that the appellant had abetted the offence
which is also punishable with equal rigour.
Mr. Y. Raja Gopala Rao, learned counsel appearing on behalf of the
appellant, in support of this appeal, inter alia, would submit that the High
Court should not have interfered with a well-reasoned judgment of the
learned Special Judge.
Mr. P. Vinay Kumar, learned counsel appearing on behalf of the
respondent would support the judgment.
It is one of the few cases where apparently an innocent officer appears
to have been prosecuted for no fault on his part.
P.W.2 had sold away his land to P.W.3. The casurina growth was
being cut by its owner, namely, P.W.3. The purported obstruction in his
activity came from the Mandal Revenue Officer and not from the appellant.
A complaint was made against four persons, the MRO being one of them.
Indisputably, it was the MRO who had asked for the said sum. P.W.2,
although, went to the said MRO continuously for a few days, no attempt was
made by him to offer the sum to the said officer himself. The complaint was
made 15 days after the alleged demand. In the meanwhile, the casurina
growth was cut and removed by P.W.3 without any further hindrance
purported to be relying on or on the basis of the assurances made by P.W.2
that the dispute had been settled. The complaint was made to the Inspector
of Police after a period of fifteen days from the date of original demand.
The purported role played by the appellant, when the demand was
made by the MRO, was said to be a mere intervention resulting in reduction
of the amount of demand from Rs.5,000/- to Rs.2,000/-, which could not be
substantiated. It is not the case of the prosecution that he demanded any sum
for himself.
If the casurina growth had already been cut and lifted by P.W.3, the
question of any demand being persisted would not arise. The deliberate and
planned manner in which the trap is said to have been made; the purported
demand made by the MRO and the role played by the appellant, betrays all
comprehensions. The prosecution did not explain as to why the complaint
had been made after 15 days. No evidence has been led as to on what basis
P.W.2 could assure P.W.3 that he had already talked to the Mandal Revenue
Officer, and thus the latter could remove the casurina growth, which he did.
The learned Trial Judge found the evidence of P.W.2 and P.W.3 wholly
unreliable, inter alia, on the ground that they had made a lot of
improvements in their testimonies. They failed to explain delay in lodging
report and in the process prevaricated the case from stage to stage.
It is a matter of great concern that the investigators would interpolate
documents. It was found to have been done by the learned Special Judge.
The High Court did not reverse the said finding. The learned Special Judge
found that Shri Ram Murthy, who was inimical towards the appellant, had
scribed Exhibit P.3 report. Even the Investigating Officer did not disclose as
to who was the author thereof. Therein the purported amount of bribe
demanded was corrected to Rs.2,000/-. What was the original sum
mentioned therein is not stated. P.W.2 is said to have met the D.S.P.,
A.C.B., but P.W.6 says that the said Officer was on leave and he had himself
collected the said Exhibit P.3 report from P.W.2.
Illegalities committed in the trap proceedings are galore. The
complaint Exhibit P.3 was made on 11.12.1988. P.W.2 did not state that
he was asked to report on the next day.
According to P.W.2, he had attended his office on 12.12.1988 at 2.30
p.m., but the documentary evidence brought on records established that he
met the Inspector at 12.30 p.m. According to P.W.6, it takes at least 2 to 3
hours to commence pre-trap proceedings, but in this case it was arranged
within 40 minutes. The trap party proceeded in an official car. Eight
persons travelled in the same car. Why so many persons travelled in one
car, is not explained. Why so many persons had to travel together is also
beyond our comprehension. A trap proceeding envisages secrecy and not a
wide publicity. It reached Chodavaram at about 6.10 p.m. P.W.2,
admittedly, was not travelling with them. He was taken to the spot by the
said Shri Ram Murthy.
P.W.2 did not know D.W.1 at all. It was D.W.1 who not only led the
raiding party to the house of the appellant, he pressed the call bell also. Why
services of an unknown person, who was not known to P.W.2, were taken,
remained to be explained. Even the circumstances in which his services had
to be obtained were not disclosed.
The appellant, at that time, had already taken his dinner. They were,
allegedly, taken inside a bed room, which is again wholly unlikely.
According to P.W.2, after him several other persons entered the room
whom he did not know. Why persons who were not connected with the raid
gathered and entered into the room and even could know in which room the
money was lying is a mystery.
Although, according to P.W.2, he and the appellant met in one room
alone, when the Inspector asked him to disclose as to where the money was,
response came from three other persons and not from the appellant.
Strangely P.W.2 did not disclose the fact of availability of the money in a
particular room to the Inspector.
P.W.2 stated the appellant had counted the money with both of his
hands, but only the fingers of his right hand, when dipped in the sodium
carbonate solution, rendered the positive result.
We fail to understand as to why in post trap panchnama Exhibit P.7,
the words that 'the money was found to be in a bed room corner and the cash
had been picked up by A.O. and handed over to the Inspector', had to be
interpolated.
It is a mystery as to why no offer was made to the M.R.O. directly or
why the raiding party did not visit his house? The prosecution witnesses
even did not know in which village the M.R.O., Surveyor and Revenue
Inspector had their respective residences. A short intervention made by the
appellant was purported to be in relation to the quantum of amount. The
offer, therefore, should have been made to the M.R.O. directly. He was
named in the complaint, but along with him and the appellant, two others
were also named. Why no action had been taken as against three other
persons, is not known. Why M.R.O., who had made a demand, on whose
behalf the appellant had accepted the amount, had escaped prosecution has
not been explained.
It is also accepted that before the Sanctioning Authority, the vital
documents showing involvement of the M.R.O. had not been produced. The
Sanctioning Authority, therefore, did not have any occasion to apply their
mind to the entire materials on record and in that view of the matter, the
sanction is, therefore, vitiated in law. Conduct of the officers of the
respondent who had taken recourse to suppressio veri deserves serious
condemnation.
Submission of the learned counsel for the State that presumption has
rightly been raised against the appellant, cannot be accepted as, inter alia,
the demand itself had not been proved. In the absence of a proof of demand,
the question of raising the presumption would not arise. Section 20 of the
Prevention of Corruption Act, 1988 provides for raising of a presumption
only if a demand is proved. It reads as under :
"20. Presumption where public servant accepts
gratification other than legal remuneration. (1)
Where, in any trial of an offence punishable under
section 7 or section 11 or clause (a) or clause (b) or sub-
section (1) of section 13 it is proved that an accused
person has accepted or obtained or has agreed to accept
or attempted to obtain for himself, or for any other
person, any gratification (other than legal remuneration)
or any valuable thing from any person, it shall be
presumed, unless the contrary is proved, that he accepted
or obtained or agreed to accept or attempted to obtain
that gratification or that valuable thing, as the case may
be, as a motive or reward such as is mentioned in section
7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate."
Furthermore, even in such a case, the burden on an accused does not
have to meet the same standard of proof, as is required to be made by the
prosecution.
In M.S. Narayana Menon @ Mani vs. State of Kerala & Anr.
[(2006) 6 SCC 39], this Court held :
"Moreover, the onus on an accused is not as heavy
as that of the prosecution. It may be compared with a
defendant in a civil proceeding."
In Union of India through Inspector, CBI vs. Purnandu Biswas
[(2005) 12 SCC 576], it was opined :
"In this case demand of illegal gratification by the
respondent has not been proved. Furthermore, Section
20 of the Act is not attracted as the respondent had been
charged for commission of an offence under Section
13(1)(d) read with Section 13(2) of the Act."
Moreover, the High Court recorded a judgment of acquittal. The High
Court should not have dealt with a detailed judgment of acquittal in such a
slipshod manner.
In State through Inspector of Police, A.P. vs. K. Narasimhachary
[(2005) 8 SCC 364], this Court held that when two views are possible, a
judgment of acquittal is to be justified.
In Kalyan Singh vs. State of Maharashtra [2006 (12) SCALE 577],
this Court has held :
"The High Court while dealing with the matter, in
our considered opinion, failed to apply the proper tests in
deciding a case where a judgment of acquittal has been
recorded. The views of the learned Trial Judge cannot be
said to be wholly unsustainable. It is now well known
that if two views are possible, the Appellate Court shall
not ordinarily interfere with the judgment of acquittal.
We do not, however, mean to lay down the law that the
High Court, in a case where a judgment of acquittal is in
question, would not go into the evidence brought on
records by the prosecution or by the State but we would
like to point out that even if the High Court reversed the
judgment of acquittal recorded by the Trial Court, it is
incumbent on the High Court to arrive at the conclusion
that no two views are possible."
{See also Samghaji Hariba Patil vs. State of Karnataka [2006 (10)
SCALE 283]; and Umrao vs. State of Haryana & Ors. [AIR 2006 SC
2152].}
For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. The
appellant is on bail. He is discharged from the bail bonds.
