K. Subba
Reddy Vs. State of Andhra Pradesh [2007] Insc 986 (28 September 2007)
Dr.
Arijit Pasayat & D.K. Jain
CRIMINAL
APPEAL NO. 1309 OF 2007 (Arising out of SLP (Crl.) No. 6306 of 2005) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the judgment rendered by a learned Single judge
of the Andhra Pradesh High Court upholding the conviction of the appellant
punishable under Section 7 of the Prevention of Corruption Act, 1988 (in short
the 'Act'). The appellant had faced trial along with another accused and for
the sake of convenience he is described as A-2 hereinafter. Both the accused
persons were convicted for the offence punishable under Section 7 of the Act
and sentenced to undergo rigorous imprisonment of one year each and to pay a
fine of Rs.1,000/- with default stipulation. They were, however, acquitted of
the other charges.
3.
Sans unnecessary details, the prosecution version as unfolded during trial is
as follows:
A-1
worked as an Excise Sub Inspector, at Mydukur, Cuddapah District and A-2 worked
as a Home Guard. PW.1 is the de facto complainant. His father by name Subba
Reddy was running a wine shop at Mydukur known as "Eswara Wines"
since 1987. PW.1 obtained a license to run another wine shop known as "New
Eswara Wines" and was running the said wine shop. He was assisting his
father in the said business. On 7.2.1988 the enforcement wing of the Excise
Department raided the shop of his father in his presence. The raiding party
found some stock without license. A case was registered against PW.1 and his
father and it ended in conviction in April, 1994. They preferred an appeal and
it was pending at the relevant point of time. On 27.4.1994 the Excise
Superintendent issued a show cause notice to PW-1 for cancellation of license
issued in his favour. On 3.5.1994 A.1 sealed his shop pursuant to the
directions of the Excise Superintendent. On 4.5.1994 PW-1 sent Ex.P4 reply,
which was received by the Excise Superintendent under Ex.P5 acknowledgement.
Subsequently, PW.1 filed W.P. No. 9460 of 1994 before the High Court seeking a
direction for the release of the stock seized by A.1 from his shop known as
"New Eswara Wines". The High Court passed an order on 11.5.1994 in
W.P.M.P. No. 11535 of 1994, in favour of PW. 1, directing the excise officials
to release the seized stocks. On 15.5.1994 PW.1 approached the Superintendent
of Excise along with the order of the High Court for the release of the stock.
On the same day, the Excise Superintendent directed A.1 to open the seal of the
shop and handover the stock to PW.1. PW.1 approached A-1 to remove the seals
and to open the doors of the shop. At that time A-1 demanded Rs. 5,000/-
towards bribe for opening the seals and when PW.1 expressed his inability, A.1
reduced the amount to Rs.3,000/-. Though A.1 opened the shop by removing seals,
he refused to give the stock register unless and until the bribe of Rs.3,000/-
is paid.
PW.1,
who had no inclination to pay the bribe to A.1, preferred Ex.P-10 complaint to
Anti Corruption Bureau (for short 'ACB') officials on 16.5.1994. On the same
day, PW.7 and members of the trap party reached the office of A-1 at about 5.00 p.m.
Immediately,
PWs. 1 and 2 went to A.1. When A-1 demanded the bribe, PW.1 told him that the
money was ready, but A-1 told him to come on the next day i.e. 17.5.1994 and
further told that in case he goes for checking of shops, the amount may be paid
to A.2, i.e. the present appellant. On the next day i.e. 17.4.1994 at about 11.30 a.m. PW-1 met PW-2 enquiring about A-l and A-2 came and
asked PW-1 to give the bribe of Rs. 3,000/- as demanded by A-l. Accordingly,
PW-1 paid the amount to A.2. A.2 counted the notes, kept the amount in his left
pocket. Subsequently, the amount was recovered from A-2 and the phenolphthalein
test conducted on the fingers of both the hands and the left pant pocket of A-2
proved positive. PW- 8 after completion of investigation laid the charge sheet.
Charges
were framed. Appellant denied the charges and claimed for trial.
4. The
prosecution in order to establish the guilt of the accused persons examined 8
witnesses and marked 23 documents and produced 9 material objects. As noted
above, the trial Court considering the oral and documentary evidence recorded
the conviction. Before the trial Court the prosecution referred to the evidence
of PW-1 who claimed that as per the instructions of A-1 money was handed over
to A-2. A-1 denied the demand and acceptance of the bribe and pleaded that PW-
1 paid the amount to A-2 to hand over the same to one person namely, Subbarayudu
for the purpose of remitting the same to the treasury. The trial Court held
that the tainted money was delivered to A-2 and it was recovered from A-2.
Accordingly, both A-1 and A-2 were guilty. The High Court by the impugned order
upheld the conviction of the two accused persons.
5. In
support of the appeal, learned counsel for the appellant submitted that no
definite role was ascribed to the present appellant and no material has been
adduced to show that A-2 had any knowledge that the money was being paid to A-1
as bribe. There is not even any suggestion, much less, no evidence to show that
A-2 had any knowledge that he was being used as a conduit for the purpose of
payment of bribe to A-1. It is, therefore, submitted that the conviction is not
maintainable.
6.
Learned counsel for the State on the other hand submitted that the connected
SLP (Crl.) No.2113/2006 filed by A-1 has been dismissed. Though there is no
direct evidence about the knowledge of A-2-the present appellant about the
money being bribe to A-1, it can reasonably be inferred from the background
facts that he was actually a conduit and the money was paid to him and he was
asked to hand over the same to A-1. On the contrary, the totally unaccepted
plea that money was to be paid to somebody else has been raised which has been
rightly rejected by the trial Court and the High Court. The evidence of PW-1 is
of vital importance.
7.
There is no material to show about the knowledge of A-2 regarding the money
being bribe. He had offered the explanation that the money was to be paid to Subbarayudu.
In
this connection, reference is made to the evidence of PW-1.
He has
only stated that A-1 asked him to hand over the money to A-2 if he had gone out
for checking of shops.
8.
Appellant (A-2) at the relevant point of time was working as a Home Guard. He
was assigned different duties at different places. It is accepted in the cross
examination by PW-1 that there is no Sub-treasury at Mydukur and if anybody
wants to remit money to the Government, one has to go out to different places.
It is also accepted that there is a practice of giving money to some boys
working in the shops or some places to remit the money to the Government
treasury at different places indicated by the shop owners. It was also accepted
that Subbarayudu was a person who used to remit the amount to Government on
behalf of shop owners. It is the accepted position that the present appellant
had no role to play in the return of the stock register. It is the prosecution
case that A-1 had wanted the bribe to be paid for the return of the stock
register.
9.
Above being the position, the material is not sufficient to hold the appellant
guilty. His conviction is accordingly set aside. He was released on bail
pursuant to the order of this Court dated 27.2.2006. His bail bonds shall stand
discharged.
10.
The appeal is allowed.
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