Mungi Janardhan Rao vs State ACB

K.Surender, J

The appellant was convicted for the offence under Sections 7 and Section 13(1)(d) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of three years under each count vide judgment in C.C.No.47 of 2007 dated 01.04.2013 passed by the Principal Special Judge for SPE & ACB Cases, Hyderabad. Aggrieved by the same, present appeal is filed.

Briefly, the case of the prosecution is that the defacto complainant/P.W.1 lodged complaint stating that one Kodipaka Vishwanadh Goud, who is his uncle and one Balaram is brother-in-law of his uncle. Both of them owned agricultural land of Acs.49.00 in Sy.Nos.34 to 37 of Ahmedguda village of Keesara Mandal, R.R.District. During the year 2006, both Vishwanadh Goud and Balram made a request to the Government to convert their agricultural land from ‘conservation use’ to ‘residential use’. The file was pending in the office of HUDA. The appellant was working as Assistant Planning Officer in the said office. Since both his uncles were not maintaining good health, P.W.1 was taking care of the processing of land conversion. Though P.W.1 met the appellant number of times and specifically on 13.10.2006 and asked about the pending file, the appellant demanded Rs.1,50,000/-as bribe and informed that he would take care of the entire processing. P.W.1 then expressed inability and offered to pay Rs.75,000/- on 16.10.2006. The appellant threatened that if the amount is not paid, he would pass negative remarks on the file. Both the uncles of P.W.1 asked him to approach ACB when informed about the demand by appellant. Accordingly, P.W.1 handed over written complaint on 13.10.2006 at 6.00 p.m to the DSP, ACB/P.W.9.

The complaint was received by P.W.9, DSP/ACB. P.W.9 instructed P.W.1 to come to his office along with Rs.75,000/- on 16.10.2006. FIR was registered on 14.10.2006. The trap party assembled in the office of the DSP at 6.30 a.m on 16.10.2006. Having concluded the formalities prior to proceeding to the trap, pre-trap proceedings were drafted which is Ex.P3. P.W.9, then asked P.W.1 to make a phone call to the appellant to know about his whereabouts. At 9.00 a.m, the trap party left the office and reached the house of the appellant. At 9.50 a.m, P.W.1 entered into the office and after ten minutes, came out and signaled to the trap party indicating demand and acceptance of bribe. Having received the signal, the trap party entered into the house and informed the appellant that they were from ACB. On the instructions of P.W.9, sodium carbonate solution test was conducted on both hands of the appellant to know whether the phenolphthalein powder smeared currency notes of Rs.75,000/- were handled by the appellant. The test on both hands turned positive. The appellant then went into his bed room, opened the almirah and handed over Rs.75,000/- to the trap party. Having concluded the post trap proceedings and also seizing the concerned files, Ex.P12 post trap proceedings were drafted.

Thereafter, the investigation was handed over to P.W.10 who concluded investigation and filed charge sheet after obtaining necessary sanction.

Learned Special Judge examined P.Ws.1 to 10 and marked Exs.P1 to P19 during the course of trial. Ex.D1 was marked by the appellant. Learned Special Judge found that the hostility of P.W.1/defacto complainant is of no consequences and the other evidence in the case was pointing towards guilt of the appellant and accordingly, recorded conviction.

Learned counsel appearing for the appellant would submit that P.W.1, who is the defacto complainant has turned hostile to the prosecution case, as such, the question of the prosecution proving ‘demand’ does not arise. Once the demand is not proved, the recovery is of no consequence. The appellant at the earliest point of time has stated that Rs.75,000/- which was accepted was towards repayment of loan. However, the said version was not recorded during post trap proceedings. In fact, P.W.1 had accepted during cross-examination that at the instance of Vishwanadh Goud, he went to the house of the appellant and handed over Rs.75,000/- and informed that the said amount was sent by one Narender, Junior Planning Officer/P.W.4.

Learned counsel further argued that even according to the prosecution case, the appellant does not have the power or authority to convert the land use from agricultural to residential. The file which was placed before the appellant was already processed by him and remarks were made. As such, no official work was even pending with the appellant. Learned counsel relied on the judgments of Hon’ble Supreme Court in the case of Soundarajan v. State rep. by Inspector of Police Criminal Appeal No.1592 of 2022, Vigilance Anticorruption, Dindigul1, Jagtar Singh v. State of Punjab Criminal Appeal No.2136 of 2010 and C.M.Girish Babu v. C.B.I, Cochin, High Court of Kerala AIR 2009 Supreme Court 2022 and argued that once the demand was not proved by the prosecution, mere recovery of amount is of no consequence.

On the other hand, learned Special Public Prosecutor for ACB argued that the amount of Rs.75,000/- was taken by the appellant on the date of trap and kept it in the almirah. At the instance of the appellant, the said amount was recovered by the DSP. Presumption arises under Section 20 of the Act and the appellant has failed to discharge his burden. Learned Special Judge has rightly decided the case by convicting the appellant.

Admittedly, P.W.1 has completely turned hostile to the prosecution case and did not even accept that the contents of the complaint are true. He stated that the said Ex.P1 was given by one Vishwanadh Goud and he is not aware of complaint. The Investigating officer failed to examine the land owners, Vishwanadh Goud and Balram, who are the Uncles of P.W.1 to prove that they are the land owners and they wanted conversion of their land use. In the absence of examination of the land owners and no reasons being given for such non examination during investigation, the version of the prosecution regarding demand by the appellant becomes doubtful.

Further, according to P.W.4, the appellant had already endorsed on the relevant file under Ex.P13 at page 8 that in accordance with zoning regulations, residential activity is not permissible. The extract of cross-examination of P.W.4 would be relevant.

“It is true that at page 8 of Ex.P13 at para 31 the AO had noted that in terms of zoning regulations residential activity is not permissible in conservation use and at para 30 the AO had mentioned that the land in question was earmarked as conservation use zone. It is true that neither me nor the accused officer had any authority to convert the land use from agriculture to residential. It is our duty to put up the status position for higher officials to take further action. It is true the Government is the competent authority to change the land use from agriculture to residential. It is true as per the master plan the land in question while in conservation use and we had discussed about this conservation use land at the time of our inspection and that residential activity is not permissible in conservation use.”

P.W.9’s cross-examination regarding the pending work would be relevant.

“As per the complaint the complainant himself has no official work with the accused. Pw-1 was not the owner of the land for which conversion of land use was applied for. I have not examined the real owners of the land before taking action on Ex.P1. I have not verified the ownership of the lands mentioned in Ex.P1. Pw -1 has not enclosed any authorization given to him by the land owners to act on their behalf. He has not shown any written authorization to act on behalf of real owners and to give report to me.”

As seen from the record, P.W.1 totally denied having knowledge about any kind of processing of file by the appellant and also denied demand and acceptance of bribe. Apart from the evidence of P.W.1, there is no other evidence to prove the demand aspect. The appellant had already endorsed as admitted by P.W.4 on the relevant file that such conversion is not possible even prior to the date of lodging complaint. In the said circumstances, the question of demanding bribe by appellant for processing the file and getting permission for land use conversion cannot be believed.

The prosecution has failed to prove either the demand aspect or that the appellant was in a position to do any official work.

Once the demand is not proved by the prosecution and it is also proved that part of the official work of the appellant was already completed and he has endorsed that the land use conversion cannot be done, the recovery of Rs.75,000/- from the appellant is of no consequence. Mere recovery cannot form basis to find the appellant guilty in the absence of proof of demand and the appellant having no power to do any official favour.

Though appellant had taken a specific plea during trial that the amount received from P.W.1 was towards loan from P.W.4, however, appellant could not prove the same. The said aspect cannot be an incriminating circumstance against the appellant. As already discussed, the prosecution could not discharge their initial burden of either proving the ‘demand’ by appellant or any ‘pending official favour’ with the appellant. Only when prosecution succeeds in discharging its initial burden, the appellant’s failure to prove his defence can be treated as an additional circumstance as proof of guilt of accused and not otherwise.

For the said reasons, the appellant succeeds and the conviction recorded by the learned Special Judge in C.C.No.47 of 2007, dated 1. 04.2013 is hereby set aside.

Accordingly, Criminal Appeal is allowed. Since the appellant is on bail, his bail bonds shall stand discharged.