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Judgment
Criminal Appeal No.1681 of 2007 is preferred by A1 and Criminal Appeal No.1705 of 2007 is preferred by A2. A1 was convicted for the offence under Section 7 and 13(1)(d) r/w 13(2) and A2 was convicted for the offence under Section 12 of Prevention of Corruption Act, 1988 vide judgment in C.C.No.20 of 2003 dated 30.11.2007 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Since both the appeals arise out of the same judgment, both the appeals are heard together and disposed off by way of this Common Judgment.
The case of the prosecution is that A1 is the Deputy Forest Range Officer of Warangal District. The defacto complainant/P.W.1 is a carpenter in Hanumakonda area. P.W.1 collected timber pieces and took them to Ramakrishna Saw Mill for the purpose of putting them in the leveling machine. After the work was done, while taking back the wooden sticks in the rickshaw, A1 asked P.W.1 to show permit for the wood. When he failed to show any permit, then A1 asked the wood to be unloaded in the Ramakrishna Sawmill premises and asked him to get permit or pay sum of Rs.3,000/- as bribe. P.W.1 when requested, the bribe amount was reduced to Rs.1,000/-. The said incident happened on 24.09.2001. Again on 28.09.2001, when P.W.1 met A1 and pleaded to return the wood, A1 stated that until payment of Rs.1,000/- is made, the wood will not be returned.
Aggrieved by the said persistent demand of A1, P.W.1 went to the ACB office and met the DSP. He lodged Ex.P1 complaint on 29.09.2001. P.W.1 was asked to come back on 01.10.2001 on which date, trap would be arranged. P.W.1 went to the office of the DSP, ACB at Warangal at 4.00 p.m on 01.10.2001. There were other independent witnesses and trap party members. The formalities required to be followed prior to laying a trap were concluded in the ACB office. Ex.P4, which is the mediators report was drafted after conclusion of pre-trap proceedings. Thereafter, around 4.15 p.m, the trap party reached Rama Krishna saw-mill. Then around 6.30 p.m, A1 came near Sawmill and entered into the premises. P.W.2, was asked to accompany P.W.1 to observe what transpired in between P.W.1 and A1. Both went into the Sawmill to meet A1. Then, on seeing P.W.1, A1 enquired whether he brought bribe amount. Accordingly, P.W.1 took out the currency notes from his shirt pocket and handed over to A1. A1 instructed P.W.1 to pay the amount to A2 who was present in the Sawmill. The bribe amount was handed over to A2 by P.W.1 and P.W.1 left the place to give signal to intimate the trap party that bribe amount was passed on. After P.W.1 went out, according to P.W.2, A1 took back the amount from A2 and kept in his pocket. A1 went out near his parked vehicle. The trap party stopped and questioned A1 regarding the bribe amount that was received from P.W.1. A1 stated that about five days back he seized old timber from PW.1 when he was transporting in a rickshaw and kept in Sawmill timber depot since P.W.1 failed to produce any valid permit. A1 further stated that P.W.1 is liable to pay Rs.3,000/- as fine. However, P.W.1 met him in the Sawmill and paid him Rs.1,000/- towards fine stating that it was towards fine. Since A1 had the discretion, he informed that he would impose fine of Rs.1,000/- only. However, without taking receipt, P.W.1 left.
Having recorded the version of P.W.1, A1, A2 and also other witnesses who are present in the Ramakrishna Sawmill, post trap proceedings were conducted and drafted vide Ex.P8.
The Investigating Officer having concluded investigation, filed charge sheet for the offence under Section 7 and Section 13(1)(d) r/w 13(2) of the Act against A1 and Section 12 of the Act against A2 for abetting the offence under the Act.
Learned Special Judge recorded the statements of Defacto complainant-PW1, accompanying witness-PW2 and others. Exs.P1 to P15 were marked by the prosecution. The accused examined DWs.1 and 2 and marked Exs.X1 to X3 in defence.
The learned Special Judge found that A1 had demanded and accepted the amount from PW1. On the date of trap A2 was also present and handled the amount at the instance of A1 which amounts to abetting demand of bribe by A2 and accordingly, A2 was also convicted along with A1.
The learned counsel appearing for A1 would submit that PW1 did not support the case of the prosecution and stated in the Court that the amount of Rs.1,000/- which was given on the trap date was towards the fine amount which he had to pay for being in possession of timber without valid bills or licence. The said version was stated during the statements recorded during post trap proceedings Ex.P8. A1 at the earliest point of time had informed the DSP during the post trap proceedings that the amount was given towards fine and the same was recorded. Exs.X1 is the receipt, Exs.X2 and X3 are the office register and the original receipt maintained in the office during the years 2000-2001. The version given by the accused officer has to be accepted and evidence of PW2 cannot form basis to convict the accused. Though P.W.2 is an independent witness and claimed to be present in the Sawmill, his presence was subsequently developed and not mentioned in Ex.P4 pre trap proceedings.
The counsel relied on the Judgments of Honourable Supreme Court in Mukhtiar Singh v. State of Punjab (2017) 8 Supreme Court Cases 136 wherein it was held that bald allegation of demand and acceptance when uncorroborated by any other evidence, the charge against the accused has to fail. Mere recovery of the bribe amount from the accused is of no consequence.
He also relied on the Judgment of Honourable Supreme Court in Khaleel Ahmed v. State of Karnataka (2015) 16 Supreme Court Cases 350 wherein the Honourable Supreme Court held that to rebut presumption, the burden is one of preponderance of probability. The burden is on the prosecution to prove the factum of demand and acceptance beyond reasonable doubt.
In V.Sejappa v. State by Police Inspector Lokayukta, Chitradurga (2016) 12 Supreme Court Cases 150 similar view was taken as in Khaleels case.
The counsel also relied on the Judgment of this Court in Gulam Mohammed v. Inspector of Police, Anti-Corruption Bureau, Hyderabad 2023 (1) ALD (Crl.) 443 (TS); T.Rajender v. State 2022(2) ALD (Crl.) 1047 (TS); and G.Harinatha Rao v. State of Andhra Pradesh (2014) 13 Supreme Court Cases 44; and argued that mere recovery of the amount when the complainant turned hostile to the prosecution case and demand was not proved, conviction has to be set aside.
The counsel appearing on behalf of Accused No.2 would submit that the name of A2 was not mentioned in the complaint. To attract an offence under Section 12 of the Prevention of Corruption Act, it has to be proved that a private person had abetted an offence punishable under the Act. Even according to the prosecution, A2 was present when the alleged trap had taken place. A1 asked A2 to take the amount and immediately A1 had taken it back. When A2 did not know anything about the alleged demand of bribe even according to prosecution, the question of abetting A1 in the present circumstances of the case does not arise.
PW1 has not supported the case of the prosecution and resiled from what was stated in the complaint and statement recorded under Section 161 of Cr.P.C. He stated that Ex.X1 was issued by the officer towards payment of fine. He totally disowned the version that there was any kind of demand by A1.
It has to be seen from the circumstances of the case whether the hostility of PW1 would have an impact on the case of the prosecution or whether the evidence of PW2 who is an accompanying witness can be considered to believe the evidence of demand and acceptance by A1.
PW3 is the Forest Range Officer who stated that the teak wood which was available in the premises of saw mill that belonged to PW1 would entail a fine of Rs.1,000/- to Rs.1,500/-for carrying the said wood without permit. PW4 who was declared hostile to the prosecution case stated that he is not aware about the facts of the case. He stated that he constructed a house in the year 1998 in Subedari Revenue Colony, Warangal District. PW5 is a carpenter by profession who is running a Planing machine in Mulugu Road, Warangal District. He stated that in the year 2001, he took some wood from P.W.1, planed it and gave it back. PW6 was also declared hostile as he did not support the prosecution case. PW7 is a resident of Mulugu of Warangal District and he was an employee in Ramakrishna Saw Mill where the trap had taken place. According to him on 24.09.2001 while he was present in the saw mill, PW1 brought a Rikshaw with a load of wood and Accused officer also came to the said premises and enquired whether PW1 possessed any permit. PW1 informed A1 that he would bring the permit.
Coming to the evidence of PW2 the accompanying witness who followed PW1 into the office, stated during his examination that as instructed by DSP he followed PW1 and when A.O.1 demanded the bribe amount and asked PW1 to give it A2, PW1 handed over the bribe amount to A2. After PW1 went out, A1 asked A2 to handover the bribe amount and kept the amount in his shirt pocket.
It is admitted by both PW2 and PW8-DSP that PW2 was not instructed during the pre trap proceedings to accompany PW1 into the saw mill. In the absence of specific instructions by DSP that PW2 should follow PW1, it is not explained as to why PW2 went inside the saw mill along with PW1. Though, it is mentioned in post trap proceedings-Ex.P8, that the DSP instructed PW2 to follow PW1, the said proceedings admittedly were drafted after the trap party went inside, enquired with A1 and conducted test on the hands of A1 & A2. Further, where PW2 was standing, the distance and whether he was at an audible distance is not stated by PW2. PW2 did not state that he can understand Telugu language. Admittedly, the conversation in between PW1 and A.O.1 was in Telugu language. After PW1 went out, PW2 stayed in the saw mill and meanwhile, A.O.1 went out where his motor bike was parked and trap party intercepted him near motor bike.
It is admitted that at the earliest point of time during post trap proceedings, A.O.1 informed the trap party that wood was seized while it was being transported in a Rikshaw and kept in Ramakrishna Timber depot, since PW1 failed to produce any valid permit. According to A.O.1 he informed PW1 to pay fine of Rs.3,000/-, however, he came to Ramakrishna Timber Depot and while he was attending some work PW1 went to him and paid Rs.1,000/- towards fine through A2. A1 infomed PW1 that he would impose Rs.1,000/- only on the seized wood, however, PW1 went away. On receipt of the amount from A2, he kept the same in shirt pocket and was about to go to other mills for the purpose of issuing permits, ACB officials intercepted him.
PW1 has resiled from his earlier statement and disowned the contents of compliant Ex.P14. Ex.P14 complaint was marked through DSP. According to P.W.1, the amount was given towards fine and Ex.X1 is the receipt for the said fine amount. PW7 is the person who was present in the saw mill when the wood was brought and A1 enquired with PW1 about the permit. DW1 stated that on 01.10.2001, he went to Ramakrishna Saw Mill in the evening. PW1 came alone and informed that he brought the amount of Rs.1,000/- to pay towards penalty for being in possession of the wood. Since A.O.1 was busy in writing permits, he asked A2 to receive the amount. Thereafter, Ex.X1-receipt was issued and after obtaining acknowledgment of PW1, A.O.1 handed over Ex.X1 to PW1. PW1 was asked by A.O.1 to wait for sometime, so that he would prepare panchanama regarding penalty of Rs.1,000/-, however, he went out.
DW2 is the Forest Section Officer who stated that Ex.X1 is in the hand writing of A.O.1 and hears the signature of A.O.1. Ex.X2 is the offence register maintained in the office and it contains the particulars of the offences and compounding of such offences by collecting penalty. DW2 also narrated several other instances of collecting fine from different persons for compounding the offence and releasing the material. The purport of the statement of DW2 is that the procedure of collecting penalty and issuing receipts was in accordance with procedure that was followed in the department. During cross-examination the Public Prosecutor did not dispute the factum of booking the cases and issuing receipts against the penalty that was collected from erring persons.
In K.Shanthamma v. The State of Telangana 2022 (4) SCC 574 the Honourable Supreme Court held that proof of demand is sin qua non for finding a person guilty for the offence under Section 7 of the Prevention of Corruption Act. The element of demand has to be proved beyond reasonable doubt by the prosecution. The only basis for prosecution to say that there was a demand is the doubtful evidence of PW2. It was not decided during pre trap proceedings that PW2 would accompany PW1 and observe what transpires in between A.O.1 and PW1. However, after the alleged trap, testing and explanation given by A1, post trap proceedings were drafted in which it was mentioned that PW2 had followed PW1. Viewed with the other circumstances in the case vis-a-vis the evidence of PW2, there arises any amount of doubt regarding demand being made by PW1. P.W.3, D.W.1 and D.W.2 supported the version of A1, given at the earliest point of time during post trap proceedings. Exs.X1 to X3 support the version of A1. The solitary statement of A2, cannot be made basis to believe the version of demand, since P.W.2s version is not free from suspicion and facts indicated that he was subsequently asked to make statement against A1.
A2 was convicted for abetting the offence under Section 12 of Prevention of Corruption Act. This Court finds that the demand was not proved by the prosecution against A1. Accordingly, benefit of doubt is extended to A1. In the absence of proof of demand by A1, the question of abetment by A2 does not arise.
In the result, the judgment in C.C.No.20 of 2003 dated 30.11.2007 passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad is hereby set aside. Since the appellants are on bail, their bail bonds shall stand cancelled.
Accordingly, both the Criminal Appeals are allowed.
Miscellaneous applications, if any pending, shall stand closed.