G.V.V.Satyanarayana vs M.Satyasai, & Ors.

These three criminal appeals are preferred by the accused 2 to 6 in Spl.C.C. No.1/2006 on the file of Special Judge, Puducherry challenging the

judgement dated 22.07.2014 sentencing them to undergo 5 years R.I and fine of Rs 10,000/- in default to undergo 3 months S.I. for offence under

section 12 of Prevention of Corruption Act, 1988, r/w Section 34 of Indian Penal Code.

Criminal Appeal No.399 of 2014 is the appeal filed by G.V.V.Satyanarayana, the 6th acccused , Criminal Appeal No.400 of 2014 is the

appeal filed by M.Satyasai and M.Ravikumar the 4th and 5th accused respectively and Criminal Appeal No.401 of 2014 is the appeal filed by

V.Satyanarayana Raju and V.Baskara Raju the 2nd and 3rd accused respectively.

The sum and substance of the case under appeal is that, the accused persons are registered PWD contractors of Yenam Region, Pondicherry

Union Territory. Between 1999 to 2002 one V.Selvaraj was the Executive Engineer for Yenam Region. Based on the complaints by one of the

contractors by name Surveswara Rao and an EX-MLA by name Malladi Krishna Rao alleging rampant corruption in alloting works contract and

reciept of bribe as reward by Selvaraj from the contractors, the Vigilance and Anti-Corruption Police Unit of Pondicherry, has registered Criminal

Case No. 5 of 2001 against Selvaraj and the contractors and investigated the case. By the time, final report was filed, the public servant Selvaraj

passed away and the trial court has framed charges against the contractors for the offence under section 12 of PC Act r/w 34 of IPC.

The substance of charges is that, firstly, during the year 1999 in furtherance of common intention A-2 to A-6 abetted A-1 the Executive

Engineer of PWD Mr.P.Selvaraj (deceased) to receive Rs.2,65,000/- as bribe by way of demand drafts drawn in the name of his wife

S.Selvanayaki, sons S.Sethuraman and S.Segar in order to show some favour in alloting contract works. Secondly, during the year 2000, A-3 and

A-6 abetted A-1 the Executive Engineer of PWD Mr.P.Selvaraj (deceased) to receive Rs 2,72,000/- as bribe by way of demand drafts drawn in

the name of his wife S.Selvanayaki in order to show some favour in alloting contract works. Thirdly, during the year 2001, A-3 abetted A-1 the

Executive Engineer of PWD Mr.P.Selvaraj (deceased) to receive Rs 79,900/- as bribe by way of demand drafts drawn in the name of his wife

S.Selvanayaki in order to show some favour in alloting contract works. As per the final report placed before the trial court, the demand drafts

were drawn at State Bank of India at Yanam or Indian Bank at Yanam or Andra Bank Injaram by the contractors in favour of P.Selvanayaki and

she has encashed it through her accounts in UCO bank, Bazaar Branch Pondicherry or Indian Overseas Bank, Pondicherry.

To prove the charges, the prosecution has examined 18 witnesses and has marked 126 exhibits. On the defence side one exhibit is marked.

After appreciating the evidences let in by both the parties, the trial court has held the accused guilty of offences under section 12 of Prevention of

Corruption Act, 1988 read with Section 34 of Indian penal code. Aggrieved by the judgement of conviction and sentence, the present appeals are

preferred by the accused/appellants.

Grounds of appeal

The main charge of the prosecution is that the accused contractors abetted the deceased Executive Engineer to award contracts by corrupt

means and had received reward for abusing his official position. However none of the prosecution witness or document indicate the work contract

was awarded to the accused persons without following the procedure or the work executed by the accused persons were of sub-standard for

which the Executive Engineer has paid in excess by obtaining bribe. Nor the prosecution has proved the alleged demand drafts drawn by them and

the same had been encashed by the family members of A1.

Based on the complaint of the contractor Mr.Sarveswara Rao-P.W.2 and the MLA Malladi Krishna Rao (PW-8) the prosecution has

proceeded with the investigation. Both the witnesses have failed to substantiate the contents of their complaint. While PW-2 has admitted in his

cross examination that he was awarded one contract for Rs 10.00 lakhs by P.Selvaraj Executive Engineer, Public Works Department. He did not

pay any bribe to get that contract and he did not pay any bribe to P.Selvaraj to get back the deposit money. He is not aware of the persons by

name P.Selvanayaki, Seethraman and Ramesh. Likewise, PW-8 has disowned any personal knowledge about the allegations found in his

complaint Ex P-57. He has deposed that he gave the complaint based on the representation given to him by some of the contractors.

Thus, both the witnesses who were instrumental for the criminal prosecution have failed to substantiate the contents of their complaint. The

documents collected during investigation and as spoken by the witnesses for prosecution only establishes that several demand drafts in favour of

S.Selvanayagi were drawn in the name of accused persons. The bank officials who were examined as PW-2, PW-5 and PW-6- have only

deposed about the fact that based on the applications marked as Ex.P.2 to P.8, Ex.P.10 to P.30 and Ex.P.33 to P.54 they have issued the

demand drafts. PW.10, PW.11 and PW.14 have identified the demand drafts drawn in favour of S.Selvanayagi, Seetharaman and others. All

these witnesses are from the banks who have issued the Demand Drafts. The prosecution has not examined any witness from the respective banks

in which those demand drafts were presented for collection.

There is no evidence to show that the amount mentioned in those demand drafts were credited into the accounts of S.Selvanayagi w/o Selvaraj.

The only peice of evidence relied on by the prosecution is Ex.P.124 which is a letter dated 28.11.2011 from the Chief Manager of Indian

Overseas Bank, Pondicherry to the inspector of Police, Vigilance and Anti-Corruption, Pondicherry informing him that there is no account

maintained in the name of Seetharaman and Selvaraj in their bank. The computer search indicates a Saving Banks Account No. 22577 stands in

the name of S.Selvanayagi and the balance as on 28.11.2011 is Rs.5237.34.

S.Selvanayagi who was examined by the prosecution as PW-13 has not spoken about this Saving Bank Account or any other bank account in

her name. Nothing has been elucidated from her about the encashment of demand drafts alleged to have been given as bribe to her husband

P.Selvaraj. For all these reasons, the counsels appearing for the appellants submitted that the trial court judgment is perverse and liable to be set

aside.

The learned Public Prosecutor appearing for the respondent submitted that, the deceased A-1 Selvaraj while working as Executive Engineer of

Public Works Department, at Yanam, complaints were received against him from PW-2 and PW-8. From these complaints, the Vigilance and

Anti-Corruption Department came to know that the deceased P.Selvaraj had not followed the rules and regulation while alloting works contract.

He obtained commission ranging from 3% to 10% as bribe by way of demand drafts in the name of his close relatives. Exs. 111 to 115 are

Demand Drafts which have been encashed on presentation by S.Selvanayagi in her bank account. PW-15 has deposed that in the course of his

investigation he found that in UCO Bank, Bazaar Branch S/B Account No 8864 and in Indian Overseas Bank, Puducherry S/B Account No.

22577 stands in the name of S.Selvanayagi. PW-2, PW-5 and PW-6 have spoken and identifed the applications for demand drafts. The demand

drafts issued pursuant to the applications are identified by PW-10, 11 and 14. The demand drafts are encashed on presentation into the Savings

Bank Accounts of S.Selvanayagi maintained at UCO Bank Bazaar Branch, Indian Overseas Bank, Puducherry or at State Bank of India,

Pondicherry. Therefore, the acceptance of illegal gratification by the public servant in the name of his wife is proved. The accused persons who

have abetted the public servant to commit the said crime are liable to be prosecuted under section 12 of the PC Act. Since they all shared common

intention and acted in furtherance of the said common intention, the trial court after cummulative assessment of the evidence, has rightly held them

guilty of the charges.

Point for determination:-

Is the judgment under challege suffers improper appriciation of evidence, which is perverse and deserve to be interfered ?

The persual of the judgment impugned herein, this court finds that the trial court has heavily relied on the evidence of PW-10 to conclude that

the accused have abetted the public servant in taking bribe to do them favour by abusing his official position. According to the trial court, the

evidence of PW-10 Delli Babu, retired Assistant General Manager, State Bank of India, Puducherry is the vital witness to prove the realisation of

the amounts drawn by S.Selvanayaki through the demand drafts issued by A-2 to A-6 (the appellants herein). Further, refering section 20(2) of the

Prevention of Corruprttion Act, the trial court has held that the accused persons have not rebutted the presumption by offering any reasonable and

probable explanation during the trial to show that the acts of drawing demand drafts in favour of S.Selvanayagi, wife of deceased A-1 and

S.Sethuraman and S.Segar sons of deceased A-1 and subsequently cleared through their bank account is not for any illegal gratification.

Before adverting to the manner in which the trial court has appreciated the evidence of PW-10 and the law of presumption contemplated under

section 20 of the Prevention of Corruption Act, it is pertinent to first look into the charges framed against the accused and the relevant evidence let

in by the prosecution to prove those charges.

The first charge is against all the appellants (A-2 to A-5) for abetting the public servant A-1 (since deceased) during the year 1999 for giving

bribe of Rs.2,65,000/- to A1 by way of demand drafts drawn in State Bank of India, Yanam and Indian Bank, Yanam in order to show some

favour in alloting works contract. Similar second charge is framed against A-3 and A-6 that during the year 2000 they paid Rs.2,72,000/- by way

of demand drafts in favour of S.Selvanayagi as bribe and the third charge against A3 that during the year 2001 he paid Rs.79,900/- by way of

demand drafts in favour of S.Selvanayagi as bribe.

Except marking Ex.P-123 series which contains list of works sanctioned by the Regional Office of Public Works Department, Yanam, the

investigating officers have not elucidated anything about what sort of favour was shown by the Executive Engineer in alloting the works to the

accused persons. The details of work order Ex P-123 series had been collected by PW-16, P.R.Ramachandran, Inspector of Police and marked

through him. He in his cross examination admits except recieving it from the office of the Public Works Department he did not examine any person

in connection with the works contracts listed in Ex.P-123. The Investigating Officer- Mr.Raja Kirubakaran, who succeeded PW-16 was examined

as PW-17. He admits in the cross examination that from Ex.P-123, he came to know that apart from the accused persons several others were

given works contract and he found no legal violations in allotment of works. When the Investigating Officer himself has admitted in his evidence that

there was no violation in alloting the works to the accused persons, showing favour in alloting the works after receiving bribe gets improbable.

Even otherwise, if the prosecution could prove beyond doubt, that some pecuniary advantage has been obtained by the public servant for

himself or for any other person by abusing his official position and in furtherance of the said act, gratification has been passed on from the accused

persons to the public servant or any other persons, then the presumption under section 20(2) of the Prevention of Corruption Act can be drawn

against the public servant as well as the persons who have abetted him. In such circumstances, the accused persons are expected to prove the

contrary.

Unfortunately, in this case, what the prosecution could be able to prove is the applications for purchase of several demand drafts and

encashment of the said demand drafts. Being bank transactions, who purchased the demand drafts and who encashed it is not the matter for

presumption. These facts are be proved through documentary evidence, such as statements of account, entry in the day books, debit and credit

vouchers of the respective accounts as per Banker''s Book Evidence Act. The trial court has wrongly held that PW- 10 evidence is sufficient to

prove the drawing of demand drafts by A-2 and A-6 and encashment of it through UCO Bank, Bazaar Branch by S.Selvanayagi. San

documentary evidence, the occular evidence of PW-10 in connection with the facts to which he does not have personal knowledge but only

through documents, is of no probative value.

More particularly, PW-17 has deposed that he collected particulars regarding the bank accounts of A-1 family members from the respective

banks. In his deposition, he has stated that he came to know that S.Selvanayagi had Savings Bank Account in United Commercial Bank, Bazaar

Branch and Indian Overseas Bank, Puducherry. But no document is placed before the court to show the existence of such bank account. No

witness from these two banks have been examined to ascertain, whether the accounts which stood in the name of S.Selvanayagi is that of

S.Selvanayagi w/o Selvaraj or it relates to some other Selvanayagi. Production of the Savings Bank Account opening form and the statement of

accounts could have proved whether the Demand Drafts drawn in the name of S.Selvanayagi is meant for Selvanayagi w/o Selvaraj (deceased A-

1) and whether those demand drafts were credited into the said account and later withdrawn by Selvanayagi w/o Selvaraj. The only documentary

evidence relied on by the prosecution in this regard is Ex.P-124, a letter from Indian Overseas Bank, Pondicherry. This letter only furnish the

Savings Bank Account Number, name of the account holder and the balance as on 28.11.2001.

From the records this court finds that the prosecution has earlier examined S.Selvanayagi as PW-13. She has feigned ignorance of any bank

account in her name. The prosecution has not elucidated any details of the bank accounts in the name of S.Selvanayagi or encashment of the

demand drafts purported to have been drawn by the accused persons. Later after completion of recording evidence of the witnesses, when the

matter was listed for arguments, an application under Section 319 Cr.P.C has been filed to add S.Selvanayagi w/o Selvaraj as one of the accused

since she has lend her name to recieve the bribe money on behalf of her late husband P.Selvaraj and thereby abetted the crime along with the other

accused. The trial court has dismissed the application holding that the prosecution has not placed any material to show demand drafts were

presented by S.Selvanayagi and encashed by her through the bank account operated by her. Even thereafter, the prosecution has not taken any

steps to place the documents relating to S.Selvanayagi''s bank accounts which PW-17 has spoken in his deposition.

The failure or omission to bring the necessary documents pertaining to bank accounts in which the demand drafts were encashed is the last nail

in the coffin, since the prosecution has neither proved any undue favour shown to the accused in awarding contract, nor have proved that demand

drafts were drawn by the accused by comparing the signatures in the Demand Draft applications with that of the sample signature alleged to have

been obtained by PW-17 during investigation or by making request to the trial court to compare the signatures.

The complaint and case of the prosecution is that, the Executive Engineer Thiru. P.Selvaraj to show favour in alloting works contract, obtained

commission ranging from 3% to 10% as bribe by way of demand drafts in the name of his close relatives. The accused persons have offered bribe

by way of demand drafts drawn in favour of Selvanayagi w/o Selvaraj and it has been accepted by A-1 by depositing the Demand Draft''s into the

bank accounts maintained in the name of his wife and later he had encashed it. The trial court has failed to see that the link in the prosecution case

is missing in all aspects. All the three components of charges viz., (i) reason for offering bribe, (ii) offering of bribe and (iii) acceptance of the same

has to be proved independently to hold the accused guilty of the charges. In this case as pointed out earlier, the prosecution could able to prove

neither one of the three components. Hence, this court holds that, the trial court has failed to appreciate the evidences placed before it in proper

perspective, so the judgment of the trial court requires interference.

In the result, the judgment of conviction and sentence dated 22.07.2014 against all the accused in Spl.C.C.No.5/2001, on the file of the

Special Judge, Pondicherry is hereby set aside. Accordingly, the Criminal Appeals 399, 400 of 2014 and 401 of 2014 are allowed.

Fine amount paid if any by the appellants shall be refunded. Bail bonds executed shall stand discharged.