B. Hanumantha
Rao Vs. State of A.P [1992] INSC 94 (26 March 1992)
Kasliwal, N.M. (J) Kasliwal, N.M. (J) Agrawal, S.C. (J)
CITATION:
1992 AIR 1201 1992 SCR (2) 358 1993 SCC Supl. (1) 323 JT 1992 (2) 433 1992
SCALE (1)736
ACT:
Prevention
of Corruption Act, 1947:
Section
4 and 5-Charge of receiving illegal gratification-Trap case-Huge amount of
money found in the possession of accused-Explaining the circumstances and
proving innocence-Burden of proof-Whether shifted on accused.
HEAD NOTE:
The
petitioner, an Excise Sub-Inspector, was charged with the offence of accepting
an amount of Rs. 50,000 as illegal gratification from an arrack contractor. The
defence of the petitioner was that the Contractor offered him the said amount
towards arrears of rental, stating that he could not deposit the amount in Bank
since the banking hours were over on that day. Despite his refusal to accept
the same and requesting that it may be remitted in Bank the following day, the
Contractor placed the cover containing the said amount on the table of the
petitioner, it was claimed. The trial court disbelieved the defence version and
convicted the petitioner and sentenced him to undergo two years rigorous
imprisonment and a fine of Rs. 2000 and in default thereof, to undergo 2 months
simple imprisonment.
On
appeal, the High Court confirmed the conviction and sentence awarded by the
trial court. Aggrieved against the said order, the petitioner has preferred the
present special leave petition, raising the same grounds as were urged before
the Courts below.
Dismissing
the special leave petition, this Court, Held :
1.1.
It remains undisputed that an amount of Rs.50,000 was recovered from the
possession of the accused, lying on a tea-poy in a room of office-cum-residence
of the accused. In view of the fact that on washing the hands of the accused by
a solution of sodium carbonate, the water turned pink, it leaves no manner of
doubt that the amount of Rs. 50,000 359 was touched and handled by the accused.
Under the Excise Rules, the accused-petitioner had no right or authority to
accept any arrears of rentals of an excise contract. Even if the bank was
closed as suggested by the accused, there was no question of accepting such
amount by the accused as the rentals could have been deposited by the
Contractor in the bank when it opened. Once the amount of Rs. 50,000 is found
in the possession of the accused, the burden shifts on him to explain the
circumstances to prove his innocence as contemplated under Section 4 of the
Prevention of Corruption Act. [362 C-E]
1.2.
Even if the statements of the prosecution witnesses who were declared hostile
are excluded from consideration, it would not make any difference in believing
the substratum of the prosecution story. [362 B,C]
2. The
circumstance that the Contractor was inimical and had an axe to grind inasmuch
as he was instrumental in getting the petitioner transferred and such transfer
was subsequently stayed by the Administrative Tribunal, has been considered be
the High Court and it rightly took the view that such circumstance cannot improbablise
the demand and acceptance of the illegal gratification by the patitioner.
The
conviction is based on concurrent findings of fact and appreciation of
evidence. Both the trial court as well as the High Court have considered the
facts and circumstances of the case in detail and have placed reliance on the
prosecution witnesses and there is no ground or justification to take a
different view. [362 F-H; 363A]
3.
There is no ground or justification to reduce the sentence awarded to the
petitioner, in the facts and circumstances of the case.
CRIMINAL
APPELLATE JURISDICTION : Special Leave Petition (Criminal) No. 2369 of 1991.
From
the Judgment and Order dated 19.11.1990 of the A.P. High Court in Crl. Appeal No.
1047/88.
P.P. Rao,
B. Rajeshwar Rao and Vimal Dave for the Petitioner.
K. Madhava
Reddy and G. Prabhakas for the Respondent.
The
Judgment of the Court was delivered by 360 KASLIWAL, J. This special leave
petition (criminal) is directed against the judgment of the High Court of
judicature Andhra Pradesh at Hyderabad
dated 19.11.1990. The petitioner was convicted for offences punishable under
Section 161 I.P.C. and Section 5 (1) (d) punishable under Section 5 (2) of the
prevention of Corruption Act and sentenced to rigorous imprisonment for a
period of two years and a fine of Rs. 2,000 and in default of payment of fine
to suffer two months simple imprisonment under each count with a direction that
both the sentences shall run concurrently, by an order of the Principal Special
Judge for SPE & ACB cases dated 24.11.1988. The High Court dismissed the
appeal filed by the petitioner and confirmed the conviction and sentence
awarded by the trial court.
We
have heard Mr. P.P. Rao, Learned Senior Advocate on behalf of the Petitioner
and Mr. K. Madhava Reddy, Learned Senior Advocate on behalf of the State of Andhra Pradesh.
This
is a trap case in which the petitioner was alleged to have accepted an amount
of Rs. 50,000 as illegal gratification on 5.7.1986 while working as
Sub-Inspector of Excise at his office-cum-residence at Godavarikhani. Briefly
stated the prosecution story is that PW.1 A. Baswa Reddy took arrack contract
in partnership of his brother A. Rajender Reddy (PW.2) and one Arjun for the
sale of arrack for Ramagundam group in Karimnagar district for one year from
1.10.1985 on payment of Rs. 14 lakhs rental permensem payable by 20th of each
month. The petitioner was the Excise Sub-Inspector Ramagundam. On 3.6.1986 the
petitioner called PW.1 through a constable PW.6 A Narender. PW.1 met the
accused-petitioner on the same day at 9.00 a.m. The accused demanded bribe of Rs. 50.000 and threatened that otherwise
he would seize the arrack depot at Godavarikhani and its machinery for
supplying arrack in polythene sachets without permission. When PW.1 requested
the accused to reduce the bride the accused told him that he used to take 'mamool'
of Rs. 5,000 per month from the previous contractor. On. 4.7.1986 the accused
again called PW.1 to his office-cum-residence and asked him to pay the bride of
Rs. 50,000 by the next evening otherwise, threatened him as done earlier. PW.1
on the same day submitted a complaint Exhibit P.1 to Shri P. Bal Reddy, the
then DSP, ACB, Wrangal Range. The DSP with the assistance of two mediators planned a
trap. On 5.7.1986 at about 2.00 p.m.
361
PW.1 met the accused at his office-cum-residence and on a demand made by the
accused he gave an amount of Rs. 50,000.
Immediately
thereafter PW.1 gave a signal to the raiding party and thereupon DSP, ACB
(PW.9) and other members of the raiding party rushed into the
office-cum-residence of the accused. The hands of the accused were got washed
by a solution of sodium carbonate and the solution turned pink.
An
amount of Rs. 50,000 was recovered from the possession of the accused. The
accused was then charged for offences under Section 161 I.P.C. and Section 5
(1) (d) read with Section 5 (2) of the prevention of Corruption Act. The
accused denied the charges. The prosecution examined (1) witnesses in support
of its case. The accused in his explanation under section 313 of the Code of
Criminal Procedure, 1973 gave a long statement. But in substance, his defence
was that on 5.7.1986 at about 2.00 p.m. while
he was at his office-cum-residence PW. 7 an Excise constable told him that PW.1
had come to meet him. The accused then called in PW.1. Then PW.1 gave a slip
Exhibit D.7 showing the remittances made by him towards arrears of rental till
4.6.1986. The same was in the handwriting of PW.2. The accused further stated
that PW.1 informed him that he could not deposit the amount towards arrears of
rental on that day as banking hours were over, as it happened to be a Saturday
and then offered to give him a cash of Rs. 50,000 towards payment of arrears.
So saying, PW.1 took out a cover containing currency notes and pushed it on the
table towards the accused asking him to remit the same towards rentals.
Then
the accused told him that he had no safe to keep the amount and apart from that
he was going to Karimnagar and therefore asked PW.1 to remit the amount in the
bank. PW.1 then told that his licence was cancelled previously for non payment
of rentals and therefore it would not be proper to allow the arrears to be
accumulated, but inspite of that the accused pushed back the packet towards
PW.1 and asked him to remit the rentals on the next working day. By that time
PW.1 went out leaving the packet of currency notes on the table on the pretext
of bringing some papers from outside.
PW.1
went near the jeep and talked with the driver and again came back with some
papers. Immediately thereafter the DSP, ACB and others entered the house and
subjected him to phenolphthalein test. The accused told the DSP that PW.1 had
offered him the amount of Rs. 50,000 towards payment of arrears of rentals. He
admitted that when his fingers were washed in sodium carbonate solution it
turned into pink colour on account of the reason that he 362 had shaken hands
with PW.1.
The
Learned Special Judge accepted the case of the prosecution and disbelieved the
version of the accused. The High Court affirmed the decision of the trial
Judge.
We
have heard Shri P.P. Rao, Learned Senior Counsel for the petitioner at length. Shri
Rao made strenuous effort to convince us to believe the version given by the
accused- petitioner, but in vain. Even if the statements of PW.6 and PW.7,
Excise constables who were declared hostile are excluded from consideration, it
would not make any difference in believing the substratum of the prosecution
story. It remains undisputed that an amount of Rs. 50,000 was recovered from
the possession of the accused, lying on a tea-poy in a room of
office-cum-residence of the accused.
In
view of the fact that on washing the hands of the accused by a solution of
sodium carbonate, the water turned pink, it leaves no manner of doubt that the
amount of Rs. 50,000 was touched and handled by the accused. Under the Excise
Rules, the accused-petitioner had no right or authority to accept any arrears
of rentals of an excise contract. Even if, the bank was closed as suggested by
the accused, there was no question of accepting such amount by the accused as
the rentals could have been deposited by PW.1 in the bank when it opened. Once
the amount of Rs. 50,000 is found in the possession of the accused, the burden
shifts on him to explain the circumstances to prove his innocence as
contemplated under Section 4 of the Prevention of Corruption Act. A great
stress was laid by Shri Rao that PW.1 was inimical and had an axe to grind with
the petitioner inasmuch as he was instrumental in getting the petitioner
transferred from Godavarikhani by order dated 16.5.1986 and such transfer was
subsequently got stayed by the Administrative Tribunal by order dated 20.5.1986
in a petition filed by the petitioner. The above circumstance has been
considered by the High Court and we agree with the High Court that when the
fact that the accused demanded and accepted illegal gratification of Rs. 50,000
on 5.7.1986 is acceptable then such circumstance cannot improbablise the demand
and acceptance. The conviction is based on concurrent findings of fact and
appreciation of evidence.
Both
the trial court as well as the High Court have considered the facts and
circumstances of the case in detail and have placed reliance on the prosecution
witnesses and we do not find any ground or justification to take a different
363 view. Shri Rao also submitted that even if this Hon'ble Court was not
inclined to take a different view from the lower courts, a lenient view may be
taken in awarding the sentence. We find no ground or justification to reduce
the sentence awarded to the petitioner, in the facts and circumstances of the
case.
In the
result, we find no force in this petition and the same is dismissed.
G.N.
Petition dismissed.
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