Kalicheti Gopala Reddy vs State

U. Durga Prasad Rao, J.—Aggrieved by the judgment dated 30.12.2005 in C.C. No. 19 of 2000 passed by the learned Special Judge for SPE and ACB cases, Nellore, convicting AO 1 for the offences under Sections 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act (for short ''PC Act'') and sentencing him to suffer RI for six months and pay fine of Rs. 1,000/- and in default of payment of fine to suffer SI for one month on first count and also sentencing him to under go RI for one year and pay fine of Rs. 2,000/- and in default of payment of fine to suffer SI for two months on second count, AO 1 preferred the instant Criminal Appeal.

The factual matrix of the case which led to file the present appeal is thus:

a) P.W. 1 a resident of Mittatmakur in Gudur Mandal, purchased Ac. 1.94 cts. of land in his village from T. Poli Reddy through a registered sale deed in the year 1983 and raised lemon garden therein, but did not obtain pattadar pass book. AO 1 about five or six times during two years prior to 12.07.1999, asked AO 1 for issuance of pattadar pass book; AO 1 informed him that he has to spend about 2 to 3 thousand for obtaining pattadar pass book. Hence, P.W. 1 kept quite thinking that there was no loss for not having pass book. However, later coming to know that pattadar pass book and title deed are necessary to obtain bank loans, he met Srinivasacharlu--Superintendent in the office of MRO, Gudur (LW 5) on 26.06.1999 in a Revenue Sadassu held at Mittatmakur and handed over photostat copy of sale deed (Ex. P7) and requested him to issue pattadar pass book and title deed. LW 5 instructed him to come to MRO office within four or five days with four photographs. Accordingly, P.W. 1 went to MRO office and met LW 5. He called AO 1 and handed over copy of sale deed and photos and instructed him to prepare pass book and hand over to P.W. 1 and AO 1 asked P.W. 1 to come on next day.

b) When P.W. 1 approached AO 1 on the next day and met him in MRO office, AO 1 expressed anger and questioned him as to how he thought that work would be done freely even if he reports to superior officers. Saying so, AO 1 picked out pattadar pass book and title deed from his bag and obtained signatures of P.W. 1 and asked him to approach on 12.07.1999 at 11 A.M. Accordingly, P.W. 1 approached AO 1 at VAO''s building near the office of MRO, Gudur and enquired him about the pass book. Then, AO 1 informing that pass book was ready and he would give it to him, demanded P.W. 1 to pay bribe of Rs. 1,000/-. When questioned by P.W. 1, AO 1 replied that he would not reduce the amount and further told that pattadar pass book would be given to P.W. 1 as and when bribe amount was paid to him. Having no other go P.W. 1 returned back.

c) Not willing to pay bribe, P.W. 1 got prepared Ex. P3--report through V. Raghurami Reddy (P.W. 3) and submitted to DSP, ACB, Nellore (P.W. 8) who registered a case in Cr. No. 11/RCT-NLR/99 and laid trap on 13.07.1999 with the help of P.W. 2--K. Venkateswarlu and LW 3--J. Yesuratnam, the mediators.

d) On 13.07.1999, P.W. 8 conducted pre-trap proceedings in his office in the presence of mediators and P.W. 1 and other trap members from 7.00 A.M. to 8.10 A.M. and thereafter trap party proceeded to Gudur and reached at 9.10 A.M. On the instructions of P.W. 8 (TLO), P.W. 1 approached AO 1 at Room No. 2 of Grama Paripalanadhikarula, Sevakula Vasathi Bhavan and enquired AO 1 about his pattadar pass book. AO 1 informed that pattadar pass book and title deeds were ready and signatures of MRO have to be obtained. Then, he enquired P.W. 1 whether he brought the bribe amount of Rs. 1,000/-. P.W. 1 affirmed. Then, AO 1 brought P.W. 1 into the adjacent hall and demanded and accepted Rs. 1,000/- from him. Meanwhile, AO 2--document writer working in Sub-Registrar Office, Gudur who occupied Room No. 3 in the said building for rent came there. Then, AO 1 handed over the said amount to AO 2 and asked him to keep the money saying that he will take it later in the evening. AO 2 knowing the said amount as bribe received the same and went to his room. AO 1 then instructed P.W. 1 to come two days later to receive the pattadar pass book, in the meanwhile, he would obtain the signatures of MRO and concerned officers on the pattadar pass book and title deeds.

e) P.W. 1 came out and gave pre-arrange signal thereby the trap party rushed into the room of AO 1. The TLO subjected fingers of both hands of AO 1 to chemical test of which the right hand fingers yielded positive result. On the information of AO 1, the trap party rushed the room of AO 2 and subjected fingers of his both hands to chemical test which yielded positive result. On enquiry, AO 2 opened his table drawer and produced tainted amount (MO 3) which was seized by P.W. 8. He also seized Ex. P1--pattadar pass book, Ex. P2--title deed and Ex. P7--photo copy of sale deed from AO 1. Then, Ex. P8 rough sketch of scene of offence was prepared and later Ex. P9--second mediators report was drafted incorporating the trap events and the explanation of both AOs. P.W. 9 laid charge sheet after investigation.

f) On appearance of accused, the trial Court framed charges under Sections 7, 13(2) r/w 13(1)(d) against AO 1 and charge u/s 12 of PC Act against AO 2 and conducted trial.

g) During trial, P.Ws. 1 to 9 were examined and Exs. P1 to P12 were marked and MOs. 1 to 9 were exhibited on behalf of prosecution. DW 1 was examined on behalf of defence.

h) The defence theory is total denial of case.

i) AO 1''s version is that P.W. 1 and P.W. 3 belonged to Telugu Desam Party whereas one Sundararami Reddy and Y. Srinivasulu Reddy belonged to Congress Party. AO 1 was moving closely with them and therefore P.W. 1 and P.W. 3 became inimical towards AO 1 and hence they hatched a plan to implicate him (AO 1) in a false case. Regarding trap incident, his spontaneous explanation as per Ex. P9--second mediators report was that P.W. 1 approached him and requested for issuance of pattadar pass book and as the pass book and title deed were yet to be signed by MRO, Gudur, he asked P.W. 1 to come after a couple of days. Then, P.W. 1 asked him to get a partition deed prepared dividing the properties between him and his brother, then he (AO 1) called AO 2 who was running his office in the opposite Room No. 3 into the hall of the building. As P.W. 1 paid Rs. 1,000/- towards charges for preparation of partition deed, he received the said amount with his right hand and gave it to AO 2 to keep the amount saying that he would tell the details of deed to be prepared. Accordingly, AO 2 received the amount and went into his room. He (AO 1) came to Room No. 2. In the meanwhile, ACB officials came and caught him. Thus, AO 1 contended that he never demanded and accepted bribe from P.W. 1.

j) The defence version of AO 2 is also same.

k) It may be noted that during trial, AO 1 changed his defence plea which will be discussed at the relevant place of the judgment.

l) A perusal of the judgment would show that the trial Court opined that prosecution could not establish any offence against AO 2 to the effect that he received the money knowing that it was bribe. The trial Court accordingly acquitted AO 2. Then AO 1 is concerned, trial Court observed that prosecution could establish demand and acceptance of bribe by him. AO 1 by taking different defence pleas--one during trap and other during evidence, failed to rebut the presumption u/s 20 of PC Act and rendered himself guilty of the offence. The trial Court also did not believe the defence plea that P.W. 1 and P.W. 3 were inimical towards him. Accordingly, it convicted and sentenced AO 1 as stated supra, while acquitting AO 2.

Hence, the appeal by AO 1.

Heard arguments of A. Hariprasad Reddy, learned counsel for appellant/AO 1 and Sri Ghani A. Musa, learned Special Public Prosecutor (Spl. PP) for ACB cases.

4 a. Impugning the judgment of the trial Court learned counsel for appellant firstly argued that AO 1 was not competent to issue pattadar pass book and title deed to P.W. 1, and he is not concerned with the process of issuing them. As such, there was no official favour pending with him to demand any bribe. Therefore, the claim of prosecution that AO 1 demanded bribe for issuing pattadar passbook and title deed has no legs to stand.

b) Secondly, he argued that on the two vital ingredients of crime i.e. demand and acceptance, except the highly interested and inimical evidence of P.W. 1, there is no other evidence, since no shadow witness was arranged by TLO to watch the events occurred between P.W. 1 and AO 1 and the sole evidence of P.W. 1 is not believable because of his grudge and ill-feeling towards AO 1.

c) Thirdly, he argued that admittedly some persons were loitering at the hall of VAO building where allegedly AO 1 received the bribe amount from P.W. 1. Those persons must be knowing the truth regarding the trap incident. However, prosecution has not examined any of those persons to prove the trap incident.

d) Fourthly, he argued that the interested evidence of P.W. 1 was proved palpably false by the spontaneous explanation of both the accused. He argued that their explanation unveiled that P.W. 1 paid tainted amount on the pretext of giving expenditure for drafting partition deed between him and his brother but not as bribe.

He thus prayed to allow the appeal.

5 a. Per contra, supporting the judgment learned Spl. PP. firstly argued that though AO 1 was not competent authority to issue pattadar pass book and title deed, but he was very much part of their preparation which is evident from the facts that when P.W. 1 approached Superintendent (LW 5) at MRO Office as per his instructions, he (LW 5) called AO 1 and instructed him to receive photostat copy of sale deed (Ex. P7) and photos from P.W. 1 and prepare pattadar pass book and title deed and in fact, those documents contain his signature and handwriting indicating that official favour was pending with him to enable him to demand bribe.

b) Secondly, he argued that the alleged political rivalry between P.W. 1 and P.W. 3 on one hand and AO 1 on the other is a concoction to wriggle out the case and the same was rightly rejected by the trial Court.

c) Thirdly, with regard to trap incident he argued that only on further demand of AO 1, P.W. 1 paid the tainted amount as bribe and the explanation of AO 1 at the time of trap was quite different from one during trial and therefore, the trial Court rightly rejected his defence plea. He argued that demand and acceptance were amply established by the prosecution and mere non-examination of persons loitering near the hall of scene of offence will not render prosecution case false.

He thus prayed to dismiss the appeal.

In the light of above rival arguments, the point for determination in this appeal is:

"Whether the judgment of the trial Court is factually and legally sustainable"

a) POINT: It being a trap case, the prosecution by cogent evidence shall be able to establish the two vital ingredients i.e. demand and acceptance of bribe by AO 1 to bring home the charges levelled against him. In this case, admittedly prosecution case mainly pivots on the evidence of P.W. 1--the complainant on the aforesaid ingredients, as admittedly no other witness was present at the time of alleged demand of bribe by AO 1 and also admittedly the TLO did not send any shadow witness to accompany P.W. 1 to observe the events transpired between him and AO 1. Therefore, the evidence of P.W. 1 assumes very much importance and it needs a close scrutiny.

b) A perusal of evidence of P.W. 1 would show that he deposed that on the instructions of LW 5--the Superintendent of MRO Office, when he went and met him, he called AO 1 and instructed him to take the photographs and copies of sale deed from AO 1 and prepare pattadar pass book and hand over to him and then on the instructions of AO 1 he started moving behind him and on 12.07.1999 when he met AO 1 at VAO building, AO 1 demanded him to bring Rs. 1,000/- to issue pattadar pass book and title deed and when P.W. 1 expressed his inability, AO 1 curtly told that pass book would not be issued unless he pays the bribe. He also told that pass book and title deed were made ready and he would deliver them after obtaining signatures of MRO, if he pays the bribe amount to him. We further find in the evidence of P.W. 1, unwilling to pay bribe he got prepared Ex. P3--report through P.W. 3 and submitted to P.W. 8--DSP who registered FIR and laid trap on AO 1 on 13.07.1999. As per the evidence of P.W. 1, on 13.07.1999 he along with trap party members went to VAO building and then he alone proceeded to Room No. 2 of AO 1 and met him and asked about his pass book and title deed. AO 1 replied that they were made ready and enquired about the bribe amount. P.W. 1 replied in affirmative and then AO 1 took him to adjacent hall and demanded to pay the bribe and accordingly, P.W. 1 paid tainted amount of Rs. 1,000/-. AO 1 received the amount and went to the opposite Room No. 3 where AO 2, the document writer was sitting and asked him to keep the money with him and he would get back in the evening. Then, P.W. 1 came out and gave prearranged signal. This is precisely the evidence of P.W. 1. So, according to him, he paid the amount as bribe but not otherwise. Of course, P.W. 1 was declared hostile by learned Public Prosecutor on one aspect. As per 161 and 164 Cr.P.C. statements of P.W. 1, AO 2 was also present in the room of AO 1 when P.W. 1 paid the bribe amount to AO 1 and witnessed the same and thereafter, AO 1 handed over the amount to AO 2 but his evidence on this aspect was otherwise as narrated supra. So, on this slight discrepancy P.W. 1 was declared hostile and cross-examined by Spl.PP with reference to his earlier statements. Be that as it may, a careful perusal of evidence of P.W. 1 shows that no inconsistent material was extracted in the cross-examination to discard his evidence. His evidence on the aspect of demand and acceptance, it must be said, consistent and cogent. Further, his evidence on material particulars was amply corroborated by P.W. 2--mediator and P.W. 8--TLO. Therefore, in spite of the fact that no shadow witness was sent along with him, still the sole testimony of P.W. 1 proved trustworthy to establish the two vital ingredients of demand and acceptance.

c) Now coming to defence arguments, firstly it was argued that AO 1 was not competent to issue pattadar pass book and title deed and as there was no official favour pending with him to demand any bribe, the allegation of demand itself is false. I am afraid this argument, as rightly observed by the trial Court, is untenable. It is true that AO 1 is not the issuing authority of pattadar pass book and title deed but the facts and evidence would show that he was very much part of processing the pass book and title deed. As rightly argued by learned Spl.PP, when P.W. 1 approached LW 5 he called AO 1 and instructed to prepare pass book and title deed. Further, Exs. P1 and P2 contain the signatures of AO 1 as identified by P.W. 4. All this would cumulatively show that AO 1 was not altogether a stranger to the process of preparation of pattadar pass book and title deed rather he was a part of it. Hence, he cannot argue that no official favour was pending with him to demand bribe from P.W. 1.

d) Regarding the respective political affiliations of P.W. 1, P.W. 3 and AO 1 etc., in the cross-examination of P.W. 1 no doubt, he admitted that he and P.W. 3 belonged to Telugu Desam Party and one Challakuru Sundarami Reddy and Srinivasulu Reddy belonged to Congress party. However, P.W. 1 expressed his ignorance as to whether AO 1 was friendly with the aforesaid Sundarami Reddy and Srinivasulu Reddy. He categorically denied the suggestion that P.Ws. 1 and 3 are inimical towards AO 1, since he was friendly with those Congress party leaders. Thus, P.W. 1 did not admit his enmity that AO 1. Then P.W. 3 is concerned, he deposed that he does not know whether AO 1 belong to Congress party or not. He denied the suggestion that himself and P.W. 1 got filed a false case against AO 1, since he was moving closely with Sundarami Reddy and Srinivasulu Reddy. Thus, P.Ws. 1 and 3 have denied their mutual closeness and their colluding together to foist a false case against AO 1 due to the fact that he is a follower of Congress Party leaders of their village. Having failed to extract the required material, it appears that AO 1 examined D.W. 1. D.W. 1--Sesha Reddy a resident of Mitta Atmakur deposed the facts that AO 1 was favourable to Congress party people such as Sundarami Reddy and Srinivasulu Reddy whereas P.Ws. 1 and 3 who belonged to Telugu Desam party were litigants and they bore grudge against AO 1 and they proclaimed that they would get AO 1 removed from the post of VAO. Thus, AO 1 sought to prove animosity of P.Ws. 1 and 3 towards him through this witness. However, in the cross-examination of Spl.PP, P.W. 1 admitted that there were disputes between him and P.Ws. 1 and 3. Therefore, the evidence of DW 1 cannot be accepted. Thus, the evidence on record would show that except party differences there was no rivalry between P.Ws. 1 and 3 on one hand and AO 1 on the other so as to wreak-vengeance against him. Even otherwise, the facts would show that P.W. 1 is a sheer illiterate and that was why he got scribed Ex. P3--complaint through P.W. 3. As such, it is very difficult to believe that such an illiterate person can venture to hoodwink ACB police to foist a false case against AO 1.

e) The third argument is that admittedly at the time of trap some people were loitering near the hall at the scene of offence and TLO has not taken any of them as mediators and he has not examined them to speak about the trap incident and so, the trap events lost their sanctity. Merely because the TLO did not examine the persons moving in the vicinity of scene of offence that by itself the evidence of P.Ws. 1, 2 and 8 and trap incidents cannot be disbelieved when they are otherwise cogent and convincing. Hence this argument cannot be appreciated.

f) Fourthly, it is argued that in view of spontaneous explanation of AO 1 and AO 2 to the effect that P.W. 1 paid the tainted amount for getting partition deed drafted, the allegation of AO 1 demanding and accepting bribe fizzle out. This contention was also untenable in view of inconsistent defence pleas taken by AO 1 at different stages i.e. during trap proceedings and during trial. During trap proceedings, in Ex. P9--second mediators report the explanation of AO 1 before TLO and other trap party members was to the effect that on that day P.W. 1 came to the room of AO 1 and enquired about issue of pass book and title deed and AO 1 replied that they were yet to be signed by MRO, Gudur and asked him to come after a couple of days. Then, P.W. 1 asked him to get partition deed prepared dividing the property between him and his brother; he (AO 1) called AO 2--document writer who was running his office in opposite room No. 3 into the hall of the building. As P.W. 1 paid an amount of Rs. 1,000/- towards the charges for preparing the partition deed, he received the said amount with his right hand and gave the same to AO 2 asking him to prepare partition deed saying that he would tell the details of the deed later. Accordingly, AO 2 received the amount and went to his room and AO 1 came to his room No. 2 and in the meanwhile, ACB officials came and caught him.

g) So, as per the above explanation, P.W. 1 at first came to AO 1''s room and requested him to get a partition deed drafted and thereafter, AO 1 called AO 2 who was sitting in the opposite room to the hall and there, handed over the amount of Rs. 1,000/- paid by P.W. 1 to AO 2 saying that he would furnish the required particulars later. However, during evidence the suggestion given to prosecution witness and answers provided in 313 Cr.P.C. examination are quite contrary to the above explanation. His latter explanation is to the effect that on 13.07.1999 P.W. 1 straightaway approached AO 2 and paid Rs. 1,000/- in order to prepare partition deed and then came to the room of AO 1 and informed him that he paid Rs. 1,000/- to AO 2 towards expenses to prepare partition deed and requested him to furnish the survey numbers to AO 2. While doing so, he caught hold and shook both hands of AO 1. This is altogether a different defence plea. It is true that an accused, though not furnished any explanation at the time of trap, can submit his defence plea during the evidence or in 313 Cr.P.C. examination and it cannot be discarded on the mere ground that it was furnished at a belated stage. On the other hand, it has to be accepted if it is trustworthy. However, it must be noted, an accused cannot take different inconsistent pleas at different stages, in which case, it must be said that his defence will lose sanctity. That is the case now. The trial Court rightly rejected his defence plea being inconsistent. Added to it, the trial Court believed the evidence of P.W. 6 and rightly held that when maximum amount for drafting the partition deed was only Rs. 100/-, it would be difficult to believe that P.W. 1 would pay Rs. 1,000/- to AO 1 for preparation of partition deed. Besides, P.W. 1 staunchly denied the theory of partition deed. So, for all the above reasons, the explanation cannot be accepted.

Thus, on a conspectus of entire evidence on record, it is clear that prosecution by cogent evidence established the demand and acceptance of bribe by AO 1 and deserved itself to claim presumption u/s 20 of PC Act in its favour. On the other hand, AO 1 failed to rebut the presumption by submitting a cogent explanation. Therefore, he is liable for the charges under Sections 7, 13(2) r/w 13(1)(d) of PC Act.

In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court against AO 1 in C.C. No. 19 of 2000.

As a sequel, pending miscellaneous petitions if any, shall stand closed.