State of A.P. Vs. K.
Punardana Rao [2004] Insc 514 (3 September 2004)
K.G.Balakrishnan & B.N.
Srikrishna K.G. Balakrishnan, J.
This is an appeal preferred by the State of Andhra Pradesh against the
acquittal of the respondent who was convicted by the Special Judge for SPE and
ACB cases, Nellore, for the offences punishable under Section 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988. The respondent
was working as a Commercial Tax Officer at Naidupet from 13.7.1991 to
22.8.1992.
The de-facto complainant Badri Audhiseshaiah was the proprietor of two
firms, by name, Sri Lakshmi Oil Mill & Company and Sri Bharatha Lakshmi
Traders at Gudur. The complainant received notices from the respondent asking
him to submit 'C' Forms and affidavits and other account books relating to his
firm, Sri Bharatha Lakshmi Traders. The prosecution case is that on 8.8.1992 at
about 7.00 A.M., the complainant went to the house of the respondent and sought
for a month's time for submission of accounts and other documents. The
respondent refused to grant time and threatened that the complainant would be
visited with penalty in case he failed to submit the books of accounts and
other documents in time. Complainant made repeated requests and then the
respondent agreed to extend the time provided the complainant paid him Rs.
25,000/- as bribe. The complainant said that the amount demanded was a huge
amount and, therefore, the respondent reduced the amount to Rs. 20,000/- and
wanted the complainant to pay the amount on the next day. The complainant on
8.8.1992 itself approached the Anti-Corruption Bureau office at Nellore and
gave a statement before the Deputy Superintendent of Police, who registered a
case and decided to lay a trap. On 9.8.1992, at about 8.00 A.M., the complainant went to the house of the respondent and gave him Rs. 20,000/-. Trap
party immediately intervened and Rs. 20,000/- was recovered from the possession
of the respondent Officer. On being subjected to chemical test, the fingers of
the respondent were found positive and the pyjama allegedly worn by the
respondent -Officer was also found to be positive on chemical test. On the side
of the prosecution, 5 witnesses were examined and Exhs. P1 to P25 and M.Ps. 1
to 10 were marked. The complainant was examined as PW 1. He deposed that he had
met the respondent on 8.8.1992 when the latter demanded Rs. 25,000/- and on his
request the amount was reduced to Rs. 20,000/'- and that he paid that amount to
the respondent on the next day. On the side of defence, DW 1 to DW 5 were also
examined. The evidence of PW 1 was accepted by the Special Judge.
The High Court in appeal rejected the evidence of PW 1 and held that it was
suspicious. The defence of the respondent was that on 8.8.1992, he was not at Nellore
and that he had gone to Chirala and attended the Panchayat at the instance of
DW 3 Major D. Samuel in Chirala. The respondent also contended that on chemical
test his fingers were found to be positive only as he had shaken hands with
PW-1 and his pyjama pockets were also contaminated with chemical substance as a
mediator of the trap party had searched his pockets for the tainted money.
The learned Single Judge held that there were certain discrepancies in the
evidence of PW 1. It was noted that the complainant received notice in respect
of M/s. Sri Lakshmi Oil Mill & Company whereas the assessment was in
respect of M/s. Sri Bharatha Lakshmi Traders. PW 1 claimed that he was the
proprietor of the M/s. Bharatha Lakshmi Traders as well as Shri Lakshmi Oil
Mill & Company. Admittedly, the notices were issued by the respondent to
the complainant. Whether the assessment related to M/s. Sri Lakshmi Oil Mill
& Company or M/s Bharatha Lakshmi Traders is inconsequential, as the
assessment of both these concerns had to be finally settled by the respondent
Officer. The High Court also was of the view that the turnover of M/s. Sri
Bharatha Lakshmi Traders was only Rs. 1,55,750/-; therefore, the tax payable
was only Rs. 6000/- or Rs. 7000/- and the complainant could not have agreed to
pay Rs. 20,000/- as bribe. But it has come in evidence that the total annual
turnover of M/s. Bharatha Lakshmi Traders, which was also a concern of the
complainant, was Rs. 30-40 lakhs. The whole question was whether the evidence
of PW 1 could be relied on. According to the respondent, the complainant had
visited his house in the early morning of 9.8.1992 for some work and sought
time for submitting account books and the respondent asked him to come to his
office. Thereafter, his servant DW-4 found a bundle of notes lying on the sofa
set. DW-4 immediately told the respondent about the same whereupon the
respondent instructed DW-4 to go and find out whether the complainant had gone
and to give him back the money he had left. DW-4 went out and found that the
complainant had already left the place and, therefore, he gave the money to the
respondent who kept the same underneath the pillow in his bedroom. The
explanation offered by the respondent is highly improbable. DW-4 gave evidence
in support of the defence set up by the respondent. But his evidence was not at
all reliable and even the High Court found that the evidence of DW-4 did not
inspire confidence.
In this case, it is proved by satisfactory evidence that PW 1 went to the
house of the respondent and the trap party was able to recover the money from
the possession of the respondent. The phenolphthalein test conducted on the
hands, pyjama and bed cover of the respondent proved to be positive. The
explanation of the respondent that he shook hands with PW-1 and thus his hands
got contaminated with chemical substance, is highly improbable.
According to the respondent, he had no prior appointment with PW 1 and how
Rs. 20,000/- happened to be in his possession is not satisfactorily explained.
The defence version supported by the evidence of DW-4 is highly improbable and
no court of law can accept such improbable version. The alibi set up by the
respondent that on 8.8.1992, he was not in Naidupet, also is not free from
suspicion. The examination of railway officials proved that the respondent had
travelled from Naidupet to Chirala in Hyderabad Express. The respondent had no
reservation tickets and he stated that he had produced two tickets with certain
specified number. How he could have remembered the number of tickets creates
some doubt. Moreover, there is nothing on record to show that the respondent
had availed leave on 7.8.1992, the day on which he is alleged to have left
Naidupet. DW-4 gave the evidence to the effect that he had received a leave letter
from the respondent to be handed over to an employee working in his office, but
in fact he did not hand over any such letter. It is important to note that
there was no enmity alleged against PW-1. He is an independent witness having
two business concerns and the matters relating to tax on the said two firms
come within the jurisdiction of the respondent Officer.
The High Court committed a serious error by rejecting the evidence of PW 1
and the evidence of the accompaning witnesses of the trap party. The recovery
of the tainted money from the respondent coupled with the evidence of PW 1
clearly establishes that the respondent did receive a bribe and thus committed
the offence under section 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. The defence evidence adduced by the respondent was not
able to cast any suspicion on the prosecution case.
We are quite aware that this being an appeal against acquittal, this Court
would be slow in reversing the acquittal, when the High Court has taken a
reasonable view of the evidence as adduced by the prosecution; but if there is
perverse appreciation of evidence and serious miscarriage of justice, the
acquittal of the accused is to be reversed. This is one such case where the
High dCourt failed to appreciate the evidence in the correct perspective. Minor
flaws in the prosecution evidence were given undue importance and the
impeccable evidence which unmistakably proved the guilt of the respondent was
ignored.
Therefore, we are of the view that the acquittal of the accused was clearly
erroneous and the same is reversed. We find the respondent guilty of the
offence punishable under Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988. On each count, the appellant is sentenced
to undergo imprisonment for a period of one year. The sentence on both counts
shall run concurrently. The cash amount of Rs. 20,000/- recovered during the
course of investigation shall be returned to PW 1.
The appeal is allowed accordingly.
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