Sri Yeneti Apparao and Another vs State of A.P.

Gopala Krishna Tamada, J.—These appeals are preferred by the appellants A1 and A2 respectively against the judgment dated 27.07.2001 passed in C.C. No.13 of 1996 by the Special Judge for SPE and ACB cases, Vijayawada, wherein A1 was convicted and sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months, under two counts, i.e., for the offence under Sections 7 and 13(2) read with I3(l)(d) of the Prevention of Corruption Act. 1988 (for short, ''the Act''), while A2 was convicted and sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months, under two counts, i.e., for the offence under Sections 13(2)read with 13(1)(d) of the Act and Section 12 read with 15 of the Act.

As both the appeals arise out of the same judgment and the point involved is the same, this Court has taken up the matters together and is disposing of the said appeals by this common judgment.

For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the trial Court.

The case of the prosecution, in brief, is as follows:

(i) A1 was working as Mandal Revenue Inspector in the office of the Mandal Revenue Officer, at Dwaraka Tirumala, West Godavari District and A2 was working as Village Administrative Officer of Timmapuram and Lingaraopalem villages. PW1 is an agriculturist owning about Ac.40-00 of land and Mango garden etc. in R.S.No.31/1 and 50 of Lingaraopalem and about 40 years back he planted teak trees around the said garden. In the year 1995 PW1 sold 55 teakwood trees to PW6 for an amount of Rs.80,000/- and in that connection as a ''No Objection Certificate'' is required from the Mandal Revenue Office, he visited the said office along with PW2 and gave Ex.P3, application on 01.08.1995. On receipt of Ex.P3, the Mandal Revenue Officer, who was examined as P W8, sent the same to A1 for necessary action. On 03.08.1995, PW8 received the file from A1 and then he made an endorsement directing A1 to enquire into the matter and submit a report. On 04.08.1995, A1 and A2 in the presence of PWs.5 and 6 inspected the place and at that time the son of PW1, who was examined, as PW4 was also present. During the course of inspection it appears A2 found the said teak trees falling in Government Poramboke lands and hence the said lands were got measured through a Surveyor at the instance of PW6, the alleged purchaser, and PW1. Two days later A2 met PW1 and informed him that A1 was demanding an amount of Rs.1,500/- towards bribe for issuance of ''No Objection Certificate'' for which PW1 expressed his inability to pay the said amount and stated that he will pay only an amount of Rs.500/-. Three days thereafter A2 again met PW1 and told him that A1 is insisting payment of Rs.1,000/-. While so, on 16.08.1995 PW1 along with PW2 went to A1 and told him that he will pay Rs.1,000/- for issuance of ''No Objection Certificate'' and that then A1 directed him to pay the said amount on or before 18.08.1995.

(ii) It is further alleged that as PW1 was reluctant to pay the said amount went to the Anti Corruption Bureau Office, Eluru and met the Deputy Superintendent of Police, who was examined as PW11 and gave Ex.P1, report. On the foot of Ex.P1, report, PW11 registered a case in Crime No.3/ACB-RC(T)EWG/95 and issued copies of First Information Reports to all the concerned. The said FIR was marked as Ex.P14. On the next day that was on 18.08.1995 PWs.1 and 2 went to the office of the Deputy Superintendent of Police with an amount of Rs.1,000/- as advised, and found PW3, one of the mediators and other staff members. The said amount of Rs.1,000/- was given to the Deputy Superintendent of Police and after completion of the formalities such as per-trap proceedings etc., the trap party proceeded to Dwaraka Tirumala and reached the said place at 1.00 P.M. The mediators report regarding the pre-trap proceedings was marked as Ex.P5. On the advise of the Deputy Superintendent of Police, one Head Constable followed PWs.1 and 2 and while the said Head Constable was staying outside, PWs.1 and 2 went into the Mandal Revenue Office. As PWs.1 and 2 did not find A1 and they were informed that he went for lunch, they came out of the said office and informed the same to the Deputy Superintendent of Police and on his instructions they went to the house of A1. At the house of A1, PW1 told him that he brought the necessary amount and requested him to issue the required ''No Objection Certificate'', for which A1 asked them to meet him in the office at 2.00 P.M., by which time both the accused were present.

(iii) It is also alleged that on seeing PWs.1 and 2, A1 asked them to sit down and took out a file and gave the same to A2 and A2 wrote something on that file and that thereafter A1 asked the money and when PW1 offered the said money A1 asked PW1 to go out of his room and pay the same to A2 in the verandah. Accordingly. PW1 and A2 went out of the office room of A1, where the said amount was paid to A2. Later when they both entered the room on the signals given by A1 the said amount was put in the drawer belonging to A1 by A2. As advised by the Deputy Superintendent of Police, PW2 came out of the office and gave the required signal, pursuant to which the trap party came to the spot and &asked PWs.1 and 2 to go out. Later, the Deputy Superintendent of Police, who was examined as PW11 prepared S.C. solution and the hands of A1 were subjected to phenolphthalein test, but there was no change. However, in the phenolphthalein test conducted on the hands of the A1 had proved positive. The tainted amount of Rs.1,000/- was collected by PW11 from the drawer and he conducted the required test by swabbing the drawer and the test found to be positive. Later when questioned about the said money, A1 denied having received any amount and expressed his innocence as to how the said amount was there in the drawer whereas A2 stated that the said amount was received by him and kept in the drawer as instructed by A1. The said explanations were recorded in the presence of the mediators and thus a second mediators report was prepared and the same was marked as Ex.P11. PW11 seized all the incriminating material including Exs.P7 and P9 and prepared Ex.P10, sketch of the scene. After obtaining necessary sanction as provided u/s 19 of the Act, charge-sheet was laid against A1 and A2.

On appearance of the accused and on hearing both sides, the learned Trial Judge framed a charge under Sections 7 and 13(2) read with 13(1)(d) of the Act against A1 and a charge u/s 13(2) read with 13(1)(d) and Section 12 read with 15 of the Act against A2, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

To bring home the guilt of the accused, the prosecution examined PWs.1 to 12 and got marked Exs.P1 to P14 and MOs. 1 to 5. None were examined and no document was marked on behalf of defence.

On an analysis of both oral and documentary evidence, the learned Trial Judge came to the conclusion that A1 and A2 are guilty of the offences with which they were charged and accordingly convicted and sentenced them as stated supra. Assailing the said judgment, the appellants-A1 and A2 have come up with these criminal appeals.

Heard, Sri C. Praveen Kumar, learned Counsel appearing for A1. Sri Sai Gangadhar Chamarthy, learned Counsel for A2, Sri V. Ravikiran Rao, learned Standing Counsel for ACB and perused the impugned judgment and other material on record.

According to Sri C. Praveen Kumar, the learned Counsel appearing for A1, there is absolutely no evidence establishing the demand of bribe, insofar as A1 is concerned. The learned Counsel further contended that the entire case of the prosecution is that from 04.08.1995 to 16.08.1995 it was A2, who was demanding the amount as if A1 was demanding. According to him on 16.08.1995, on which day PW1 was alleged to have met A1, A1 was not at all in the office and was on another duty and as such the alleged payment on 16.08.1995 to A1 cannot be accepted. In the absence of any proof about the alleged payment, according to the learned Counsel, it is not at all safe to convict A1 as if he is guilty of the offence punishable under Sections 7 and 13(2) read with 13(1)(d) of the Act. It is his further submission that even according to the case of the prosecution when PWs.1 and 2 did not find A1 in the office they went to his house and it is the best place for A1 to accept the said amount at his house, but in the instant case instead of accepting the said amount, A1 asked them to meet him in the office at 2.30 P.M. which appears to be somewhat unnatural. Similarly, it is the contention of the learned Counsel for A1 that inside the room there was none except PWs.1 and 2 and A1 and A2, and that is also the best place to accept the said amount, but in the instant case, A1 directed PW1 to go out and pay the said amount to A2 in the verandah which also appears to be some what unnatural. The learned Counsel has drawn my attention to some of the discrepancies in the evidence of the prosecution witnesses and thus submitted that it is a fit case for interference and A1 is entitled for acquittal.

Sri Sai Gangadhar Chamarthy, the learned Counsel appearing for A2 submitted that the act of receiving bribe amount on behalf of A1 by A2 would not attract the provisions of Sections 13(2) read with 13(1)(d)and Section 12 read with 15 of the Act. He further contended that as A2 was a subordinate to A1 he was obliged to receive the said amount and that it is also not the case of the prosecution that A2 is also hand-in-glove with A1 and gets some share from out of the said bribe amount.

Per contra, Sri V. Ravikiran Rao, learned Standing Counsel appearing for ACB, submitted that there is clinching evidence spoken to by the prosecution witnesses such as PWs.1,2,3 and 11 and absolutely there is nothing to discard their testimony. According to him, no doubt, there are certain discrepancies, which are very common, and so long as the said discrepancies do not go to the root of the case and shatter the entire case of the prosecution, the Courts need not brush aside the entire, evidence of the prosecution witnesses, as if it is untrustworthy.

In the light of the said submissions it is necessary to refer to the evidence of PWs.1,2,3 and 11. PW1 is the de facto - complainant at whose instance the law was set in motion and a trap was arranged. From his evidence it is clear that from 04.08.1995 to 01.08.1995, it was only A2, who was demanding the bribe amount on behalf of A1 for getting the required ''No Objection Certificate''. According to him on 16.08.1995 he along with PW2 went to the Mandal Revenue Office met A1 and agreed to pay an amount of Rs.1,000/- for the purpose of issuance of ''No Objection Certificate''. The contention put forth by the learned Counsel for A1 that on 16.08.1995 A1 did not attend the office as he was on other duty cannot be accepted for the simple reason that he may be on other duty, but it cannot be said that he did not visit the office at all. The Mandal Revenue Officer who was examined as PW8 has clarified that if any employee went out door duty on official work, the said employee can come back and work in the office after completion of the outdoor official duty. From the said evidence of PW8 coupled with the evidence of PWs.1 and 2, it can be safely inferred that though A1 was on other duty, he visited the office on 16.08.1995. When A1 visited the office on 16.08.1995, PW1 met him and A1 demanded him to pay the said f amount. Hence, the contention that there is absolutely no demand by A1 cannot be accepted.

Coming to the question of acceptance of bribe amount. PW1 has clearly stated as to how the things have taken place. No doubt, it is true that instead of receiving the bribe amount at the house. A1 might have asked PW1 to pay the same in the office and also in his room and that instead of accepting the said amount, A1 might have asked PW1 to go out of his room and pay the same to A2. From this it cannot be said that it is totally unnatural. Psychology of individuals may differ from person to person. May be A1 was timid and knows the consequence of the said acceptance of illegal gratification. On that score alone, this Court is unable to reject the said evidence of PW1. In fact, the said evidence of PWs.1 and 2 lends support from the statement of A2 recorded by the Deputy Superintendent of Police. PW11, which was marked as Ex.P11, wherein A2 has clearly stated that as per the instructions of A1 only, he received the said amount of Rs.1,000/-. Of course, he retracted from the said statement and stated that the said amount of Rs.1,000/- was initially paid to him and when he refused to accept the same, the said amount was kept in the drawer of A1, but as already observed as the evidence of PWs.1 and 2 is acceptable, the earliest statement given by A2 would only lend support to the said evidence. Hence, this Court has no hesitation to hold that A1 is guilty of the offence punishable under Sections 7 and 13(2) read with 13(1)(d) of the Act.

As rightly contended by the learned Counsel for A-2 it is not the case of the prosecution that A2 is hand-in-glove with A1 and also gets share out of the said bribe amount.

Section 107 of the Indian Penal Code, 1860 defines what abetment is and according to the said definition there are three clauses and if an act of a person falls within the purview of any one of them, then it amounts to abetment and thus punishable for the said offence either u/s 107 of IPC or u/s 12 of the Act. The first and second clauses are not germane in this context and the third clause alone is required to be looked into, it is reproduced hereunder:

A person abets the doing of a thing, who - Intentionally aids, by any act or illegal omission, the doing of that thing

The word "aids'' has been clarified in Explanation 2, to Section 107 of IPC. which reads thus:

Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

From this it is clear that act, which merely amounts to aiding the commission of an offence, cannot be said to be an abetment as defined under the provisions of law. When looked in that perspective it is clear in the instant case, that A2, who was a Village Administrative Officer and was subordinate to A1 was simply obliging him and no doubt the said obliging would be aiding, but cannot be said to be intentional aiding as it is not the case of the prosecution and that the prosecution has not attributed any malice to A2 and it has come forward with the theory that he was demanding the money on behalf A1. Hence this Court is of the view that A2 is entitled to benefit of doubt.

In the result, criminal appeal No.1145 of 2001 is allowed and the conviction and sentence imposed on A2 in C.C. No.13 of 1996 by the Special Judge for SPE and ACB cases, Vijayawada, are hereby set aside, while criminal appeal No.1165 of 2001 is, dismissed and the conviction and sentence imposed on A1 in C.C. No.13 of 1996 by the Special Judge for SPE and ACB cases, Vijayawada, are hereby confirmed.

The bail bond of A2 shall stand cancelled and the fine amounts paid by him shall be refunded to him.