V. Venkata Subbarao Vs. State Represented by Inspector of Police, A.P [2006] Insc 944 (12 December 2006)
S.B.
Sinha & Markandey Katju 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.
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