K.A. Hassan vs State of A.P.

The appellant-K.A.Hassan, Detective Sub-Inspector, Shamshabad Police Station of Rangareddy district, is convicted by the Additional Special Judge for SPE and ACB Cases, Hyderabad for offences punishable under Sections 7, 11 and 13(1)(d)(i) and (ii) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short ''the Act''} and sentenced to suiter rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- for the offence punishable under Section? of the Act. The accused was further sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,0007- for Ihe offence punishable u/s 13(1)(d)(i) and (ii) read with Section 13(2) of Ihe said Act- The sentences of imprisonment are ordered to run concurrently. In default of payment of fine, the accused is ordered to suffer simple imprisonment for aperiod of six months under each count.

The accused is alleged to have demanded a sum of Rs.500/- as gratification other than legal remuneration as a motive or reward for showing official favour by not foisting any criminal case on the complainant by treating him as the receiver of stolen property. On 8-10-1989 afternoon, the accused renewed the demand of bribe at the workshop ofSyecfAnwarA/i while passing through that road. However, tlie complainant was not willing to pay the bribe amount demanded by the accused and, therefore, he approached the Deputy Superintendent of Police, Anti-Corruption Bureau, Hyderabad and made oral complaint to take necessary action. His statement was reduced to writing and a case was registered against the accused for the aforesaid offence.

The complainant-Syerf Anwar Alt who was examined as PW1 while narrating the facts of his case in his oral testimony stated that the accused called him at the Police Station in September, 1989 and asked him whether he was doing business in stolen electric motors. When the complainant gave the answer in negative the accused still persisted his demand and in order to avoid harassment by police, PW1 bought two old electric motors-one 5 HP motor and another 10 HP motor and handed over the same to the accused. Two or three days after the accused made accusation against him he bought the motors and gave the same to the accused on 3-10-1989. The accused again called PW1 to the police station and demanded a sum of Rs.500/- from him so that the accused may not file any case against PW1. PW1 told him thathehad already spent money to purchase the electric motors which were handed over to him and he was not having any money to meet with the further demand of theaccused. Further, according to PW1 since he could not tolerate the harassment caused by the accused, PWI went to DSP, ACB, Hyderabad and reported the matter to him in October, 1989. The DSP recorded his statement at about 4.00 p.m. which was signed by PWI and thereafter the PWI narrated the manner in which the trap was laid and executed.

The learned Counsel for the appellant while pointing out the infirmities from which Ihe oral testimony of PWI was found to be suffering submitted lhat there was one outstanding feature of the defence in Ihis case \\\\ hich throws the prosecution case in the realm of doubt and pointed out that prior to the date on which the trap was allegedly laid, acharge sheet in the theft case had already been filed and PWI was not shown as the accused in that case andno allegations were made against PWI in lhat charge-sheet so as to raise even a plea that any cause survived on the day of the trap for foisting a false case against the complainant-PWl and in support of these submissions, the learned Counsel for the appellant led me through certain admissions made by the complainant and other prosecution witnesses.

In regard to theft case, PW 1 admitted that he did not obtain any receipt for purchasing 5 HP and 10 HP motors from the Old Articles Market at Chaderghat, Hyderabad. He did not tell the DSP, ACB as stated in Ex.D 1 that he gave the electric motors from his shop. PWI further stated that he knew the accused for three years and denied a suggestion that the motors were seized on 11-9-1989 in the presence of the panchas. He met the accused after he demanded the motors on 3-9-1989, but he did not tell the Investigating Officer as in Ex.D2 that he gave his motors to the accused. The accused did not tell him from whose possession the motors were stolen. PWI himself also did not make any effort of ascertain as to who was the complainant with regard to theft of electric motors. He furlher stated in his cross-examination that after lodging the complaint he went to Shamshabad and returned to Hyderabad on the same day and met the DSP, at about 10am. on 4-10-1989 when theDSP asked him to think over the matter and to meet him later and thereafter PW1 met the DSP on 6-10-1989 at about 10.00 am. along with his friend M.A. Aziz. He further slated thereafter that the accused asked him lo wait at his shop on 6-10-1989 but changed his statement instantly and said that Ihe accused asked him lo wait at the Police Station on the same day. However, since the accused was not present at the Police Station he went near the railway bridge and informed Ihe DSP that the accused was not available at the Police Station. Thereafter at about 4.00 p.m. on the same day PWlwentto the Police Station. But admitted that he returned to Hyderabad at about 8.00p.m. from Shamshabad. When the DSP asked him to go over to his office on the following day on 7-10-1989 the accused did not send anybody to his house. The DSP sent a Constable with him (P\\V 1) to ascertain why he could not visit his office on the following day. He informed the messenger that because of the 40th day of the death ceremony of his aunt he did not go lo liis office. On Sunday at 10.00 am. he opened his office and closed it at about 8.00 p.m.On7-10-1989hedid not go to the accused to inform him that he could not arrange for the bribe amount, PW1 however voluntarily added that the accused himself came on that day and demanded the bribe but he did not inform anyone of the four persons who were present at the Office that the accused had told him that he would come to his shop and take the bribe amount. The complainant-PW1 admitted that the seizure report contained his signature but voluntarily added that the signature was obtained in the Police Station after he gave the said two electric motors and that he did not inform the DSP that the accused had obtained liis signatures on the seizure pancharama. Thereafter, PW1 admitted that since he had given the complaint he did not want to give the bribe even though the accused demanded the same on 8-10-1989. The accused told him that he would come around 11.00am. onMonday. He (PW1) opened the shop on Monday at about 10.30 a.m_ He relumed from Hyderabad lo Shamshabad at 10.00am. on9-10-1989. The accused did not meet him at 11.00 a.m. on that day. He wassitting in the shop and none-else was present in his shop at thai lime. He slated before the DSP that the accused said that he would come at 11.00 a.m. The DSP did not send any person ,,, at that time to the Police Station. He (PW1). also did not go to the Police Station to ascertain why the accused did not keep his appointment. He did not know the person who drove the vehicle on which the accused came as a pillion rider. PW1 further staled in his cross-examination lliat he was standing in front of the shuller of his shop and he asked a hotel boy to bring tea M.A. Aziz was present at that time near the shop. He further slated that the distance between the place where he stood and the place where the accused was sitting was about four feet. lie did not inform the, Invesligaling Officer when he examined him that he went out and asked the hotel boy to bring tea He denied a suggestion made to him in his cross-examination thai on lhal day the accused came to his shop along with one Kamnakar on liis scooter. PW1 also denied that the accused did not demand any bribe amount from him on 3-10-1989 or thai Ihe accused did not tell him that he would meet him at Ihe shop on 8-10-1989. He also denied The suggestion that in order to avoid prosecution in the thefl case pertaining to the electric motors he filed the false case against the accused. PW1 also denied that the accused was not in a position to do liim any favour on the day he alleged demanded the bribe from him. He admilted in his cross examination that he did not make astatement before Ihe ACB officials that two motors Nos.9 and 10 which were shown to him in the Court room were shown to him previously at the Police Station by the ACB officials or that he claimed that those were the motors handed over by him to the accused. He also denied the suggestion that material objects Nos.9 and 10 were (lie theft material seized from his possession under Ex.D3. He also denied the suggestion that he Uirusted the tainled amount into the hip pocket of the accused from behind when he was going out ofhis shop.

PW6-N. Sriram stated that he was DSP, ACB, Hyderabad range from 1 -6-1983 to 30-9-1990 and that on 4-10-1989 PW1 visited his office at 4.00 p.m. and gave an oralcomplaint which was reduced to writing by him. His testimony does not receive any setback in his cross-examination. However, it is pertinent to note that he denied a suggestion that the accused stated that while he was going out of the shop PW1 thrusted the notes in the hip pocket of his pant and that while he was enquiring and removing ihe notes the trap party came there. He also denied that the accused informed him that he was not aware that P\\V I was putting the amount in his hip pocket. He also denied a suggestion that he was aware that the accused was not in a position to show any favour to PW1 and that false case was made out against the accused.

PW7-T. Sudhakar working as Inspector, ACB, Hyderabad, since June 1986 stated that he took over further investigation on 10-10-1989 from PWG and recorded the statement of PWs.l and 2 and that on 12-1-1990 he recorded the statements of C Narasimha Reddy and Y. Narasimha-PW4. He also slated in his oral testimony regarding the statements of various other witnesses recorded by him. He further stated in his examination in chief itself that he deposited the records of Ex. P9 which contained CDfileofCr.No.l41/89ofP.S. Shamshabad and Cr.No.68/89 u/s 379 IPC of PS. Shamshabad. He further stated that Ex.P14 is the copy of FIR in Cr.No.68/89 lodged by C. Narasimha Reddy and registered by K.A. Hasan (accused). He further stated that the accused seized two electric motors Nos.9 and 10 (Ex.D3) from the complainant.

Inhis cross-examination, PW7 slated that his invesligation did not reveal that Aziz, Kutubuddin, and Abdullah were present on 7-10-1989 when the accused came and informed PW1 that he would meet him at his shop for collecting ihe alleged bribe amount. He further stated lhat his investigation revealed that some workers were present at that lime at the workshop, but he did not verify who were those workers and also did not record their statements. He admitted lhat PW2-M.A. Aziz stated before him as recorded in Ex.D4, He also admitted that his investigating revealed that the charge-sheet pertaining toEx.P14 and P9 had been filed in MM Coury. West and South, Kothapet on 18-9-1989.

From the scrutiny of Ihe oral testimony of the complainant the Investigating Officers and the other prosecution witnesses, nothing conies to surface which could demolish the entire prosecution case. Certain discrepancies and inconsistencies to which my attention was drawn by Ihe learned Counsel for the appellant are, in my opinion, of insignificant character which could not be treated as totally washing oul the prosecution case and I do not consider it necessary to discuss in detail such minor discrepancies and inconsistencies. The fact that the trap was laid and the bribe money was recovered from ihe accused stands substantiated by the oral testimonies of the compainant as well as the mediators and the official witnesses discussed so far.

However, the allegation which has to a large extent revealed itself from the material on record that no cause was in existence on the date of the trap for the accused to accept any bribe money from the complainant by virtue of the fact that the charge-sheet in the theft case had already been filed prior to trap in which PW1 was not impleaded as accused along with other accused persons, requires an indeplh scrutiny. In this connection, P\\V5~Mohd. Shameemuddin, Head Constable of Shamshabad Police Station stated in his examination in chief that CD File in Cr.No.141/89 for the offence u/s 379 IPC was seized from Shamshabad Police Station and Ihe FIR in the said case was issued by the present accused. He further stated in his examination in chief that Ex.Pl 1 was the list of property in which one 5 HP electric motor was listed as the properly to be sent to the Magistrate in the said case. It was prepared by the present accused in triplicate and signed by him, but the properly was not sent to the Court and that the descriptive particulars of the motor to be sent to Court were not incorporated in Ex.Pl 1,

In his cross-examination, PW5 admitted that as per CD dated 18-9-1989 (Parti),accused had filed charge-sheet in Court in Cr.No. 141/89 of PS Shamshabad under Ex.D5. On 9-10-1989 when the accused and himself (PW5) were over-hauling the weapons, one gentleman came and informed them that some ''gadbad'' was going on the road and the accused officer asked liim to continue to clean the weapons and left the Police Station for proceeding to the spot. ''Ihose were the Dussera days. Furlher,''accordingtoPW5,PWl did not meet him at the Police Station on 8-10-1989. He further admitted that several people used to come to the Police Station every day and he could not identify all those persons who visited the Police Station and he did not know whether the ACB officials called the complainant in the above crime to identify the motors.

Ex.D5 (Case Diary-Part I) dated 18-9-1989 also discloses that in Cr.No. 141 /89 registered at PS. Shamshabad, the Sub-Inspector of Police (Crime), Shamshabad Police Station, recorded in his case diary as follows:

"In continuation of my last CD. dated 11-9-1989. Today I resumed further investigation in this case. The charge-sheet in this case against the accused persons has been filed in J.F.C.M. West and South, Kothapet. The copy of the charge-sheet is herewith enclosed for favour of kind perusal-"

The above material which has come on record gives us a strong reason to believe that the charge sheet in Cr.No. 141/89 for the offence punishable u/s 379 1PC had already been filed prior to 18-9-1989 when the above remarks were made by the Sub-Inspector of Police in the case diary dated 18-9-1989.

PW4 who did not support the prosecution case was declared hostile by the prosecution- However, l''W5 who virtually demolished the prosecution case on two aspects, namely, that the charge-sheet had already been filed in the theft case in Cr.No. 141/89 and that the accused was sitting with him (PW5) on 9-10-89 and they were over-hauling the weapons, one gentleman cameandinformed them that some gadbad was going on and the accused left the Police Station for going to the spot, has not been declared hostile by the prosecution. If it is true that charge-sheet had already been filed in Cr.No. 141/89 prior to 18-9-1989 the prosecution case receives asevere blow on the proposition that PW1 had '' still a cause to bribe the accused for not foisting a case against him.

The next slur on the prosecution case is that there was neither a demand nor acceptance of the bribe amount by the accused at the workshop of PW1. According to the learned Counsel for the appellant, if at all the Court believes that there was evidence lo show that tainted currency notes were seized from the possession of the accused, the defence version that the money was thrusted forcibly by PW1 into the hip pocket of the accused in spite of no demand having been made by the accused and no acceptance of the said amount by the accused, did not stand extinguished. When a suggestion was made in that regard to PW 1, he minced no words in denying that he had himself thrusted the tainted money into the hip pocket of the accused when he was returning after ordering for tea The prosecution version as narrated by P Wl with regard to this aspect of the trap is that at about 3.00 p.m. the accused came on scooter as a pillion rider, ''Hie driver left with his scooter after leaving the accused near PWl''s shop. The accused stepped into PWl''s shop and demanded the bribe. P\\V1 gave him the currency notes which the accused look and kept in his pocket. He took the money with his right hand. He also asked PW1 to get some tea and PW1 asked one of his workers to get tea. Soon after the punch gave the pre-determined signal the ACB officials and mediators came over to PW1 "s shop. However, PW1 did not say anything whether the fingers of the accused and the hip pocket of the accused were found tainted with the marks of phen. powder and whether any steps were taken to ascertain the same. PW2 also is silent on this aspect of the trap. PW3 merely said that the hip pocket of the accused was tested and the same was found tainted with the mark of pheit powder. But he did notsay whether the fingers of the accused also were found fainted with phen. powder. Only PW6-Investigating Officer stated that the accused was made to wash his fingers in the lumbler containing water mixed with SC powder and the solution turned pink. Thereafter, at the request made by the Investigating Officer, the accused took out a bunch of currency notes from the right hip pocket of his pant and handed over the same to the mediator Since none of the other witnesses stated anytliing about the fingers of the accused having been found tainted with phen. powder, the testimony of the Investigating Officer on this aspect of the trap proceedings remains uncorroborated.

The other objections taken by the learned Counsel for the appellant, in my opinion, do not deserve much consideration and, therefore, it is not worthwhile making any discussion on the same. But as far as the theory of the extinction of the cause for accepting bribe money is concerned, the defence succeeds in clouding the prosecution case as not free from all reasonable doubts. The ''extinction'' of cause, therefore, is one factor which raises a probability that the accused may not have demanded or accepted the bribe money and it is asetlled principle of law that in a criminal case where evidence gives rise to a suspicion about the prosecution''s case and the situation emerging out of the same leans in favour of the accused or towards the innocence of the accused, the same should be accepted and the benefit of doubt should be given to die accused.

Let us however examine whether the above situation produces any effect favourable to the accused from the provisions of law. u/s 20 of the Act which corresponds to Section 4(1) to (3) of the old Act of 1947, it is provided that where in any trial of an offence punishable u/s 7 of Section 11 or Clause (a) or Clause (b) of 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, anygratification (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.

The rebuttal of presumption u/s 4(l) oftheold Prevention ofCorruption Act of 1947 is dealt with by the Supreme Court in Trilok Chand Jain Vs. State of Delhi, in which the Supreme Court held that the degree and the character of the burden of proof which Section 4(1) casts on an accused person to rebut the presumption raised thereunder cannot be equated with the degree and character of proof which u/s 101 of Evidence Act rests on the prosecutioa The Supreme Court held that the burden on the accused to negate the presumption may stand discharged if the effect of the material brought on record, in its totality, renders the existence of the fact presumed, improbable. In otherwords, as held by the Supreme Court, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him to establish his case beyond areasonable doubt.

In the instant case, I believe that the learned Counsel for the appellant has succeeded in establisliing that no cause existed on the day when the trap was laid for PW1 to offer any illegal gratification to the accused which, in my opinion, has amply probabilised the defence theory.

In Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, the Supreme Court held that in order to raise the presumption u/s 4(1) of the Prevention of Corruption Act, 1947, what the prosecution has to prove is that the accused person has received "gratification other flian legal remuneration" and when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is satisfied and the presumption thereunder must be raised. The Supreme Court, however, further observed that the question whether a presumption of law or fact stands rebutted by the evidence or other material on record is one of fact and not of law and the Supreme Court is slow to interfere with the view of facts taken by the High Court. However, as seen earlier in Trilok Chand''s case (supra) the Supreme Court in unambiguous terms stated that the degree and the character of the burden of proof which Section 4(1) of the Act casts on an accused person to rebut the presumption raised thereunder could not be equated with the degree and character of proof which u/s 101 of the Evidence Act rests on the prosecution.

In a 1976 case in Maha Singh Vs. State (Delhi Administration), , the Supreme Court held that where there was a clinching circumstances that a currency note of Rs.10/- was recovered from the left side front pocket of the shirt of the accused and there was nothing to show that the currency note was recovered from his pocket being wrapped inside a particular parchee, the arrival of Inspector being immediately after the putting of money inside the pocket of the accused, the defence story of complainant giving ten rupee note wrapped inside the '' ''purchee'''' was absolutely false. When there was a conclusive proof with regard to recovery of currency note from the pocket of the accused, deficiency of evidence of corroboration with regard to the negotiation of the accused with the complainant paled into insignificance, more so when no material prejudice resulted to the accused.

Even in Chaturdas Bhagwandas Patel Vs. The State of Gujarat, the Supreme Court held that where the prosecution had proved that the accused Head-Constable had accepted the gratification of Rs-500/- which was not his legal remuneration, the statutory presumption u/s 4(1) was attractedin full force and the burden had shifted on to the accused. The Supreme Court clarified that the burden which rested on an accused to displace this presumption was not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in Section 161 1.P.C.

In the instant case the fact that the money was recovered from the hip pocket of the accused is proved beyond all reasonable doubts except that the allegation with regard t" the fingers of the accused having been found tainted with phen. powder which emerged only from the oral testimony of the Investigating Officer, did not receive any corroboration from other prosecution witnesses. If this version of the Investigating Officer is disregarded on the ground that it did not receive corroboration, the stand taken by the defence that the money was forcibly thrusted into the hip pocket of the accused receives credence. But there is no reason why the version of the Investigating Officer on this aspect should not be accepted when any other aspect of his oral testimony does not appear to be receiving any infirmity or set-back in his cross-examination. The complainant-PW1 and the panch did not say anything about the same in their examination in chief. This omission on their part, however, may not tarnish the prosecution case because !he substantive aspect of the evidence adduced by them was limited to the stage at which the illegal gratification was accepted by the accused. The subsequent procedure of recovering the money from the possession of the accused and ascertaining whether the fingers of the accused were found tainted with the phen. powder formed part of the procedure followed by the raiding parly which arrived at the scene of offence after receiving the prearranged signal from the mediator. In that view of the matter, therefore, the silence on part of the complainant and the mediators on the question whether the fingers of the accusedwere found tainted with the phen. powder or not is not of any material effect from the point of view of prosecution case.

The defence version that the cause did not exist for fhe accused to receive any illegal gratification although is not a proposition which could easily be thrown to winds, the weight of (he decisions of the Supreme Court discussed above is on the proposition that in a case where the accused is proved to have accepted gratification which was not his legal remuneration, the statutory presumption u/s 4(1) of the old Act was attracted in full force and the burden had shifted on to the accused. The defence did make an effort to improbablise this theory, but not outweighing the prosecution evidence supporting the same. As held by the Supreme Court in Dhanvantrai ''s case (supra), it must be shown that the explanation is true. The words : unless tfie contrary is proved'' which occur in Section 4(1) of tlie old Act make it clear, as held by the Supreme Court, that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. The Supreme Court further went on to say that the fact is said to be proved when its existence is directly established or when upon the material before it the Court find its existence to be so probable lhat a reasonable man would act on the supposition that it exists and, therefore, unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.

In view of the position of law as emerging from the principles laid down by the Supreme Court in the afore-said cases, no cause survives to interfere with the decision of the trial Court convicting the appellant for the offences punishable under Sections 7, 11 and 13(1)(d)(i) and (ii) read with Section 13(2) of the Act. Hence, the appeal is dismissed.