* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Appeal No.1665 of 2005
%21.07.2014
Between:
K. R. Chandra Paul. ....
Appellant
AND The State of A.P
Rep. by Inspector of Police, CBI
Visakhapatnam. ….
Respondent ! Counsel for Appellant : Sri T. Pradyumna Kumar Reddy ^ Counsel for Respondent : Sri P. Kesava Rao, Special Standing Counsel for CBI < Gist:
> Head Note:
? Cases referred:
1) AIR 1957 SC 614 (1)
2) (2006) 7 SCC 172 = 2006(2) ALD (Crl.) 564 (SC)
3) (1998) 5 Supreme Court Cases 529
4) (1999) 8 Supreme Court Cases 501 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL No.1665 of 2005
JUDGMENT:
This Criminal Appeal is preferred by the Accused Officer(AO) aggrieved by the judgment dated 25.10.2005 in C.C.No.11 of 2002 passed by learned Special Judge for CBI cases, Visakhapatnam, convicting him for the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short “P.C Act”) and sentencing him to suffer RI for one year and pay fine of Rs.500/- and in default to suffer SI fo r one month on two counts with a direction that both the substantive sentences of imprisonment should run concurrently.
2) A short shrift of facts are thus:
a) The AO used to work as Head Clerk in the office of Permanent Way Inspector (P.W.I)/Senior Section Engineer (S.S.E), Sullurpet Railway Station, Southern Railway in Nellore District during 2001-2002. His duties were to maintain musters, leave accounts, preparation of passes, preparation and processing of loans and advances, T.A bills of the staff. While so, PW.1—Ch.Venkateshwarlu, the complainant was working as Gangman in the office of P.W.I / S.S.E, Sullurpet Railway Station. During December, 2001 he applied for Provident Fund (P.F) advance to perform his daughter’s marriage. The AO informed that he would get an advance of nearly Rs.38,000/- and for processing his application and issuing cheque, he demanded Rs.500/- as bribe from PW.1 and directed him to pay on 11.01.2002 at the time of taking cheque in the office, failing which he would not give the cheque and return it with one or other reason. Unwilling to pay bribe, PW.1 presented Ex.P.3—report dated 10.01.2002 to the Inspector of Police, CBI, Visakhapatnam (PW.3) camping at Nellore. He registered F.I.R (Ex.P.16) on 11.01.2002 and laid trap against AO with the help of two independent mediators i.e, PW.2 and LW.3—G. Ram Prasad, officers of Central Excise, Nellore. The AO was caught red-handed when he demanded and accepted bribe of Rs.500/- from PW.1. PW.4—Inspector of Police, CBI, Visakhapatnam, on completion of investigation laid charge- sheet against AO.
b) On appearance of AO, the trial Court framed charges against him for the offences under Sections 7 and 13(2) r/w 13(1)(d) of P.C.Act and conducted trial.
c) During trial, PWs.1 to 4 were examined and Exs.P1 to P16 were marked and M.Os.1 to 6 were exhibited on behalf of prosecution.
d) The defence plea of the accused is one of total denial of offence.
e) Believing the prosecution case, the trial Court held that the AO demanded and accepted bribe and he failed to dislodge the presumption under Section 20 of P.C. Act and accordingly, convicted and sentenced him as stated supra.
Hence, the appeal by AO.
3) Heard arguments of Sri T. Pradyumna Kumar Reddy, learned counsel for appellant/AO and Sri P.Kesava Rao, learned Special Standing Counsel (Spl.S.C) for CBI.
4) Criticising the judgment, learned counsel for appellant advanced his arguments thus:
a) He firstly argued that except the evidence of PW.1, there is no other evidence to prove the charges levelled against AO and PW.1 being most erratic and inconsistent on several material particulars, he can be classified as wholly unreliable type of witness as held by Hon’ble Apex Court in the case of
[1]
Vadivelu Thevar vs. State of Madras and his evidence is liable to be discarded. However, unfortunately the trial Court placed implicit reliance on his evidence and held as if those particulars of his evidence which are favourable to the prosecution were corroborated by other witnesses and ultimately convicted the accused by erroneous appreciation of the evidence.
b) Secondly, he argued that prosecution bitterly failed in establishing that the amount of Rs.500/- paid by PW.1 to AO on the date of trap was bribe and in fact PW1 himself has not supported prosecution theory in this regard. On the other hand, the AO by offering a spontaneous explanation before the trap party members and by securing corroboration from PW.1 could able to probablise the defence plea to the effect that PW.1 paid him Rs.500/- towards discharge of the loan contracted by him earlier and what he paid was not bribe. The trial Court failed to appreciate the facts and evidence in this regard. He vehemently argued that one G. Sampath Kumar, Senior Cashier from DPO office, Chennai who brought the cheques and other material from Chennai was very much present at the time of trap and witnessed the conversation between PW.1 and AO and signed on Ex.P.8—second mediator report as a witness to the proceedings but surprisingly, the prosecution has neither cited nor examined such an independent witness. His evidence would have clinched the issue whether what was paid by PW1 to AO was bribe or redemption. He urged that an adverse inference may be drawn against prosecution for its deliberate failure to examine him as a witness.
c) Thirdly, he argued that the prosecution has not examined the authority who issued Ex.P.14—sanction order to prosecute the AO. No reason was assigned either and thereby the defence was deprived of cross-examining him to establish that sanction was issued mechanically without application of mind. The sanctioning authority i.e, V.G.Bhooma, Senior Divisional Personnel Officer, Madras Division, Southern Railway was not the competent authority to remove AO from service and therefore, he was not competent to issue sanction order. It was the General Manager of Southern Railway who was alone competent to issue the sanction order. Since the sanction was not accorded by a competent authority, the sanction proceedings and thereby the prosecution are vitiated. He relied upon the following decision to buttress his argument that General Manager of the Southern Railway alone is the competent authority to remove the railway employees from the service (Crl.M.P.No.919 of 2007 in C.C.No.72 of 1997 in the Court of Additional Special Judge for CBI cases, Chennai in the case of Sivan vs. CBI/EOW/ Chennai). He also relied upon the decision reported in State Inspector of Police,
[2]
Visakhapatnam vs. Surya Sankaram Karri .
d) Fourthly, he argued that investigation in this case was commenced long prior to registration of the FIR and therefore, the entire investigation is vitiated.
He thus prayed to allow the appeal and reverse the judgment of the trail Court.
5 a ) Per contra, learned Spl.S.C while supporting the judgment, firstly argued that prosecution could able to firmly prove the demand and acceptance of the bribe by AO with the help of admissible portion of the evidence of PW.1 and the corroboration offered by the oral evidence of PWs.2 and 3 and also other documentary evidence. Therefore, the trail Court rightly drew presumption under Section 20 of P.C. Act against AO. On the other hand, the accused failed to offer plausible explanation. His explanation that he received the amount on the date of trap towards repayment of the loan was improbablised in the cross-examination of PW1 as at one stage PW1 said that after receiving cheque he voluntarily paid Rs.500/- to AO towards discharge of the loan but at a different stage of cross-examination he was suggested to admit that long back he discharged the loan by remitting the loan amount through his colleague Anand. Learned Spl.S.C argued that if he already discharged the loan through Anand long prior to the date of trap, the question of PW.1 again paying the amount on the date of trap towards discharge of the loan does not arise and considering the same, the trial court rightly held that what he paid on the date of trap was only bribe but not the loan amount as argued by the defence. He thus argued that the defence theory is totally false and setup during trial stage.
b) Secondly, he argued that the so-called spontaneous explanation offered by AO was turned down by PW.1 as is evident from Ex.P.8—second mediator report and so the loan theory was only a ruse.
c) Thirdly, he argued that non-examination of Sampath Kumar was not fatal because when questioned by the TLO, he stated that he was engaged in counting the cash and other work and he did not witness the conversation between PW.1 and AO and the same was clearly mentioned in the second mediator report. Therefore, his non-examination was not a consequence.
d) Finally, he argued that the sanction was issued by competent authority inasmuch as Sri V.G.Bhooma was competent to remove the AO from service which was clearly mentioned in Ex.P.14—sanction order and so the contention of appellant is untenable. He further argued that even otherwise the appellant cannot challenge the sanction proceedings because he did not raise any objection for marking sanction order through the IO and he did not raise any doubt about the competency of sanctioning authority during the cross- examination of the I.O. On the point that accused cannot raise objection on sanction for the first time in appeal, he relied upon the following decisions:
[3]
1) Lal Singh vs. State of Gujarat and another
2) Central Bureau of Investigation vs. V.K.Sehgal and [4] another He thus prayed to dismiss the appeal.
6) 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 correct?
7) POINT: The charges being under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act, the prosecution by cogent evidence should be able to establish two vital ingredients of the crime i.e. demand and acceptance of bribe by AO to enable the Court to draw presumption under Section 20 of P.C Act. In this case, to prove the charges, the evidence of PW1 being the complainant and PW2 being the shadow witness assumes great importance. PW.1 is concerned, during the chief-examination he pleaded his lack of remembrance about the facts touching Ex.P.3—complaint. Hence Special Public Prosecutor (Spl.P.P)
cross-examined him with the permission of the Court. In his cross-examination, PW1 admitted most of the facts and deposed in tune with the prosecution case, whereas in the cross-examination of the defence counsel, he deposed in favour of AO. Whereas PW2 deposed in lines of the prosecution case. The contention of appellant is that the evidence of PW1 should be branded as wholly unreliable and discarded and if so, prosecution will have no case. Notably AO did not urge similarly before trial Court but he too placed reliance on some portion of his evidence to his advantage. Be that it may, Spl.S.C contended PW1 will not be a wholly unreliable type but a partly reliable type since he showed volte- face on certain aspects and hence the Court can accept admissible portion of his evidence which is favourable to the prosecution by seeking corroboration from other evidence and in fact the trial Court did so.
a) In the light of above arguments, a threadbare analysis of PW1’s evidence is required to decide whether he can be branded as a totally unreliable witness to reject him or to regard him as a partly reliable to accept the useful material on corroboration.
b) His evidence would depict that after speaking the factum of his submitting Ex.P.1—loan application and his meeting AO to enquire about his loan and on accused asking him to give the money and his receiving the Ex.P.2—cheque and his giving Ex.P.3—report to the CBI, Inspector, he pleaded his lack of remembrance regarding the contents of Ex.P3. At that stage, learned Spl.P.P sought permission of the Court to put the questions as a cross-examiner would do in respect of the facts touching Ex.P.3—report and his statement under 161 (3) Cr.P.C and Court accorded permission. Then during cross- examination by the Spl.P.P, he admitted most of the contents of Ex.P.3 but denied the suggestion that he paid the amount to AO as bribe. He however, admitted that after he received the cheque, the AO asked him that he has to give Rs.500/- and saying so, AO demanded for the payment of the amount and then he paid the amount of Rs.500/- to the AO which amount was put in his left side shirt pocket by the CBI Inspector. He denied to have stated as contained in his 161 Cr.P.C statement.
c) Then during cross-examination of defence counsel, PW.1 admitted that he used to take loans from AO and repay through the colleague gangmen or directly. He further admitted that one month prior to the date of trap, he borrowed Rs.500/- from the AO but he sent away the amount to the accused through Anand, a Gangman. He further admitted that accused never demanded Rs.500/- as bribe for processing the bill or for delivering the cheque to him and when the AO insisted him for repayment of the loan amount due to him, he (PW.1) presumed that accused was demanding the said amount as bribe and thereupon got telephoned to the CBI authorities through his colleague and stated before the CBI authorities that he was thinking that the accused was demanding him bribe. He further stated that since he presumed that the accused was demanding Rs.500/- as bribe he got incorporated the word bribe in Ex.P.3. He also stated that after receiving the cheque, he himself took out the amount from the pocket and gave the same to AO saying that he asked that he should pay the amount and paid the amount to the accused. He also admitted that 10 days after accused was released on bail, he approached him and found fault with his conduct in trapping the AO by the CBI authorities by dubbing the loan amount as trap amount and during said discussion, PW.1 came to know for the first time that the loan amount which he repaid through Anand had in fact not reached AO and all these days, AO was demanding for repayment of his loan but not bribe and on knowing this fact, he on the request of AO, sent a report to the CBI authorities narrating all the true facts.
8) So a close scrutiny of the evidence of PW.1 would show that during his initial portion of chief-examination and also during the cross-examination by learned Spl.P.P, he tend to give answers favourable to prosecution to a large extent except on the nature of the amount which he passed on to AO. While so, in the cross-examination of the defence side, most of his earlier evidence was not challenged but he was chiefly made to depose that he mistook the demand of AO for repayment of the loan amount as demand for bribe. Therefore, it is crystal clear that even the defence side is also not branding him as totally unreliable witness. So at this juncture, the classification of the witnesses and the method of their treatment propounded by the Apex Court in the cited decision (1 supra) needs to perused. It was observed thus:
xxxx Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way – it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
9) So when the entire evidence of PW.1 is scrutinised, it can be said that he cannot be branded as altogether a wholly unreliable witness but on the other hand, he can be regarded as partly reliable as he turned hostile on some aspects. The method and manner of appreciation of hostile witnesses is no m o r e res integra. T h e A p e x Court time and again has expounded the guidelines for dealing with such witnesses. In its latest judgment (Paulmeli and another vs. State of Tamil Nadu, Traffic Inspector of Police (MANU/SC/0505/2014)), Apex Court happened to discuss its previous judgments on the aspect appreciation and probative value of a hostile witness. It observed thus:
“16. This Court in Ramesh Harijan v. State of U.P. (AIR 2012 SC 1979) while dealing with the issue held:
It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof (Vide: Bhagwan Singh v. The State of Haryana : AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa: AIR 1977 SC 170; Syad Akbar v. State o f Karnataka: AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR 1991 SC 1853).
17. In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR 1996 SC 2766), this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh and others. (AIR 2008 SC 320); Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462); C. Muniappan and Ors.
v. State of Tamil Nadu (AIR 2010 SC 3718); and Himanshu @ Chintu v. State (NCT of Delhi):(2011) 2 SCC 36).
Thus, the law can be summarized to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.”
10) In the wake of above rulings, it is clear, the evidence of hostile witness is not automatically effaced off the record. On the other hand, the Court on careful evaluation of the said evidence, shall try to find out whether reliable and admissible material useful to both prosecution and accused is available and then accept the same. Now, these principles are to be applied to PW1 to know what extent his evidence offers useful material.
11) Demand and acceptance are concerned, PW1 in the early portion of his chief examination stated thus:
“I enquired the accused as to when I would get the PF loan amount. The accused told me that I would get about Rs.30,000/- or Rs.31,000/- after ten days time. After ten days I again went and met the accused in his office. At that time also accused told me that I would get the loan. The accused stated that I should give the money to him. I told him that I would give. xx xx xx About three years ago I gave a report to the CBI authorities. Ex.P3 is the said report dt.10.01.2002 which is bearing my signature.”
Then in the cross-examination of Spl.P.P he stated thus:
“It is true that in Ex.P3—report I got written that the accused demanded Rs.500/- as bribe at the time of delivering cheque to me in respect of PF loan amount for the purpose of processing the PF application and also for handing over the cheque to me. It is true that contents of Ex.P3-report are got written by me as they appear. xx xx xx It is true that the Central Excise Inspector and other members of the trap team verified with me regarding the contents of Ex.P3.”
In the further cross-examination of Spl.P.P, PW1 stated thus:
“It is not true to suggest that immediately after I received the cheque the accused demanded Rs.500/- from me as bribe and then I paid the said amount of Rs.500/- to the accused. After I received the cheque the accused asked me that I have to give him Rs.500/- and saying so demanded for the payment of the said amount. Then I paid the said amount of Rs.500/- to the accused which amount was kept by the CBI Inspector in the left side pocket of my shirt.”
In the cross-examination of defence counsel, PW1 stated thus:
“It is true that after my giving the PF loan application, whenever I met the accused, he used to question me saying that I had to pay him Rs.500/- but why (sic) I did not pay the said amount. xx xx xx It is true that about one month prior to the date of trap. I borrowed Rs.500/- from the accused. But, I sent away that amount to the accused through Anand, Gangman (witness volunteered). t is true that the accused never demanded Rs.500/- as bribe for processing the bill or for delivering the cheque to me. It is true that when the accused insisted me for repayment of the loan amount due to him I presumed that the accused has been demanding the said as bribe and thereupon got telephoned to the CBI authorities through my colleagues. xx xx xx It is true that since I presumed that the accused was demanding Rs.500/- as bribe I got incorporated in Ex.P3 the word ‘bribe’. After receiving the cheque I myself took out the amount from the pocket of my shirt and gave the same to the accused saying that he asked that I had to pay that amount to him and saying so I paid the amount to the accused. In the Pay Office at Sullurpet the CBI authorities questioned me whether I borrowed the amount of Rs.500/- from the accused. I answered that I borrowed the said amount from the accused but, I did not state at that time that I sent back the amount to the accused through Anand.”
12) So, when the above extracts from the evidence of PW1 at different stages touching the aspects demand and acceptance of bribe are analysed, the demand of Rs.500/- as bribe is concerned, though PW1 in his evidence stated that whenever he used to meet AO to enquire about his loan application he used to ask him Rs.500/-, he has not clinchingly stated that AO demanded the aforesaid amount only as bribe. On the other hand, in the cross-examination of learned defence counsel he stated as if he mistook the demand made by AO to him for refund of loan amount as demand for bribe. From the tenor of his evidence particularly the cross-examination of defence side, it is clear that whenever PW1 met AO to enquire about his loan application he used to demand him for money. Such a demand is an admitted fact because this part of his evidence which was stated in the cross-examination of defence counsel was not challenged. So, now, the point is whether the amount demanded by AO was bribe or discharge of his loan amount and whether really PW1 mistook the loan amount as bribe. Since the evidence of PW1 is not helpful in this regard, the other attending circumstances and evidence of other witnesses should be verified.
13 a) When attending circumstances are perused, PW1 stated in the cross-examination of defence counsel that after trap the CBI Inspector asked him in the Pay Office at Sullurpet as to whether he borrowed the amount of Rs.500/- from AO, he replied that he borrowed the said amount from AO, but he did not state that he sent back the said amount through Anand. From this evidence it is clear that according to PW1, he cleared the loan amount through Gangman—Anand long prior to date of complaint and trap. If it is true, whenever AO was persistently asking him for money, it must naturally strike to PW1 that AO was asking for refund of his loan amount because that was the only money transaction pending between them and he cannot pre-suppose that AO was asking him for bribe. In such an event, he must have replied that he already repaid the loan through Gangman—Anand and thereby we would have known the fact that money had not reached AO since Anand did not pay him that amount and this fact would have come to his knowledge even long prior to his giving Ex.P3— complaint and in such a case there was no chance of his mistaking the demand as bribe and giving complaint. So, when the natural course of conduct of parties is analysed, it would appear unlikely, nay, impossible for PW1 to mistake the demand of AO as bribe. So, it can be safely concluded what was used to be demanded by AO was bribe but not refund of loan amount.
b) The above view gets corroboration from Ex.P3— complaint. In Ex.P3 PW1 without mincing any words clearly stated that while signing on the loan application of PW1 AO stated him that for processing his application and issuing cheque he (PW1) should pay him bribe of Rs.500/-. When PW1 pleaded his inability, AO further told that unless he pay him Rs.500/- on the date of receiving the cheque, he won’t issue him cheque and on the other hand, he would return the cheque on some pretext. So, when Ex.P3 is carefully perused, it does not appear as if under the mistaken impression PW1 styled the demand of AO as bribe. Rather he clearly depicted that AO demanded him for bribe only. When the chances of PW1 mistaking the demand as bribe are remote the question of his giving Ex.P3—compliant under that mistaken impression is unbelievable.
c) Apart from Ex.P3 the evidence of PW2 and PW3 corroborated the demand by AO as bribe. PW3—TLO deposed that on 10.01.2002 while he was in Chanukya Lodge, Nellore he received a written complaint from PW1 and he arranged trap on 11.01.2002 and he showed the copy of compliant (Ex.P7) to mediators who have gone through the same and signed on it and then they cross verified the contents through PW1 and he explained them the contents. PW2 also stated in the same manner and deposed that PW3 introduced PW1 to them. So, the evidence of PW2 and PW3 is that PW1 avouched before them that AO demanded him bribe and unwilling to pay bribe he gave Ex.P3—complaint to CBI Inspector. Therefore, though PW1 did not confirm the demand as bribe, the attending circumstances and other oral and documentary evidence confirm the demand of AO as bribe.
d) Then, acceptance of amount is concerned there is no demur in it because even AO admitted that he received the amount (MO1) from PW1. He is also not disputing his hands showing positive result to chemical test. Further, PW2—the accompanying witness also deposed that when himself and PW1 went to AO he questioned PW1 as to “500 techava” and PW1 told ‘techanu’ and gave the amount of Rs.500/- to AO and AO received the said amount and kept the same in the left side pocket of his shirt. Thus, the acceptance of MO1 by AO is an established fact. So, the prosecution could able to establish the demand and acceptance of the bribe by AO as such the statutory presumption under Section 20 of PC Act shall squarely follow. Now, it has to be seen whether the AO could successfully rebut the said presumption through his explanation.
e) The defence theory is that gangmen including PW1 used to borrow hand loans from AO and they used to repay the amount either directly or through fellow gangmen. In that process, about one month prior to trap PW1 borrowed Rs.500/- from AO. Though he repaid the amount through Anand, the gangman, he did not hand over the amount to AO as he utilised for his personal needs. PW1 did not know this fact. Whenever PW1 met AO to enquire about his loan application, AO used to demand his amount but PW1 mistook the same for bribe and gave Ex.P3—report and got him trapped. PW1 realised his mistake 10 days after the trap when AO questioned his propriety in getting him trapped by dubbing loan amount as bribe amount and when PW1 pleaded repayment through Anand, AO produced Anand before him and got him admit that he did not hand over the amount to AO. The above facts were elicited in the cross-examination of PW1 to prove the defence theory.
f) It must also be mentioned here that AO offered spontaneous explanation before the trap members to the effect that he received the amount as repayment of loan but not as bribe from PW1. The defence placed strong reliance on the spontaneous explanation coupled with admission of PW1. Hence, the point is whether the defence could satisfactorily probablise its explanation to ward off the presumption under Section 20 of PC Act.
14) On perusal of facts and evidence the defence explanation cannot be accepted. Sofaras spontaneous explanation as found in Ex.P8 is concerned, there is no doubt AO gave an instant explanation that he received the amount as repayment of loan and not as bribe from PW1. It was so mentioned in Ex.P8. However, Ex.P8 depicts, when he gave the aforesaid explanation PW1 denied of taking loan from AO and affirmed that amount was given as bribe. PW2 also affirmed this and deposed that when AO stated that he did not receive any bribe and PW1 borrowed Rs.500/- from him and repaid the same, PW1 loudly stated that accused took bribe from him and statement of accused was not correct. So, it is clear that the spontaneous explanation of AO was instantly refuted by PW1. We cannot found fault with TLO and mediator as biased because they have noted the respective versions of both parties in Ex.P8 and also deposed the same facts before the Court. So, the spontaneous explanation of AO appears to be only a ruse but not truth.
15) Then, the admission of PW1 about the loan theory in his cross-examination is concerned the same is not believable because of the mutually contradictory versions given by him in the cross-examination of learned defence counsel. At one stage of cross-examination PW1 stated that after receiving the cheque he himself took out the amount from his shirt pocket and gave the same to AO as he asked that he had to pay that amount to him and saying so he paid the amount to AO. In the further stage of cross-examination he made to admit that about 10 days after the trap when AO met him and questioned his propriety in getting him trapped by dubbing the loan amount as bribe amount, then during the course of discussion and due to revelation of Anand, the gangman, PW1 came to know the amount which he has already repaid through Anand did not reach AO and so on the request of AO he sent a report to CBI, Visakhapatnam by post. If the latter part of his evidence is correct, PW1 discharged the loan amount through Anand long prior to date of complaint and trap and he came to know that money was not paid by Anand only 10 days after trap. In such an event, there was absolutely no need for PW1 to again pay the said amount to AO on the date of trap without confronting with AO that he already sent the amount through Anand and without knowing from Anand that he did not pay the said amount. So, the fallacy in the loan theory is writ large from mutually self-contradictory statement of PW1. Thus, it is clear that what was demanded by AO and paid by PW1 was bribe but not loan amount.
b) The loan theory is not believable also for another reason. That AO used to lend loans to Gangmen was to his exclusive knowledge and he did not examine anybody to establish this fact. So, except the contradictory statement of PW1 which is unbelievable there is no cogent evidence to believe that AO used to lend monies to Gangmen including PW1. Thus, it must be said that AO failed to rebut the presumption through his explanation.
c) There is no proof that PW1 sent report to CBI authorities on knowing real facts.
16) Then coming to other contentions raised in the appeal, it was argued that G.Sampath Kumar, Senior Cashier, Chennai who was present at the time of trap and signed in Ex.P8 was not examined. It is true that G.Sampath Kumar, Senior Cashier was present during trap proceedings and he signed on Ex.P8. However, Ex.P8 depicts that when CBI Inspector asked him as to what happened between AO and PW1 the said Sampath Kumar stated that he did not observe the transaction that was taken place between AO and PW1 as he was busy in counting the cash. He, however, stated that AO was talking with PW1. In view of above statement of Sampanth Kumar, probably the IO did not cite him as witness. I see no irregularity in it and no adverse inference can be drawn against prosecution on this count.
17) Then, for the first time in the appeal the appellant raised doubt about authority of Sri V.G.Bhooma, Senior Divisional Personnel Officer in issuing Ex.P14—sanction order. It was argued that the General Manager, Southern Railway who is the appointing authority of AO alone was competent to remove him from service and thereby he alone was competent to issue sanction proceeding. It was submitted that though power of appointment could be delegated on Sri V.G.Bhooma, the power of removal cannot be delegated and for the purpose of issuing sanction under Section 19 of PC Act the power of removal is criterion and therefore, Sri V.G.Bhooma has no authority to accord sanction and due to his non-examination the AO lost a valuable opportunity to cross-examine him on the above aspects.
a) The above argument cannot be accepted for many reasons. As rightly argued by Spl.S.C, the power of sanctioning authority and correctness of sanction order were not challenged at the earliest opportune time during trial. The sanction proceedings were filed through IO and no objection was raised at that time. Ex.P14 reads that Sri V.G.Bhooma, Senior Divisional Personal Officer, Madras Division, claiming himself as competent authority to remove the AO from service has issued the sanction proceeding after carefully examining the material facts such as complaint, first and second mediators reports and copies of statements of witnesses which were placed before him. It is not a hard and fast rule that sanctioning authority should invariably examine to prove the sanction proceedings. In this scenario, if AO had any reservations about the competency of Sri V.G.Bhooma he must have objected the prosecution from filing Ex.P14 proceedings through IO. Atleast AO should have cross-examined the IO about the competency of Sri V.G.Bhooma. No cross-examination was made in those lines. Therefore, it must be held that he had no objection with regard to competency of Sri V.G.Bhooma and correctness of sanction proceedings. Hence, at this belated stage he cannot challenge the sanctioning proceedings.
b) Section 19 (3) and (4) of P.C Act are very much clear on this aspect and hence they are extracted here.
19. Previous sanction necessary for prosecution.—
1) xx xx xx
2) xx xx xx
3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation—For the purposes of this section,—
a) error includes competency of the authority to grant sanction;
b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
So, from the above, it is clear that in determining whether failure of justice has in fact occasioned or not, the appellate Court shall have regard to the fact that whether objection could have been raised at any earlier stage in the proceedings or not. In the instant case, as already state supra, the defence has not raised even a whisker of objection concerning sanction proceedings. Therefore, at this belated stage the AO cannot clamour that failure of justice has been occasioned to him.
c) In the following two cited decisions, Honourable Apex Court has reiterated the same point.
In Lal Singh’s case (3 supra) Honourable Supreme Court in similar circumstances held thus:
“4. Sub-section (2) (Sec.465 (2) Cr.P.C.) makes it clear that when the objection could and should have been raised at an earlier stage in the proceeding and has not been raised, mere error or irregularity in any sanction of prosecution becomes ignorable. We therefore do not permit the appellants to raise the plea of defect in sanction.”
In V.K.Sehgal’s case (4 supra) it was observed thus:
“11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.”
So, for the above reason the argument of appellant cannot be appreciated. The cited decision in Crl.M.P.No.919 of 2007 in C.C.No.72 of 1997 of learned Special Judge for CBI cases, Chennai cannot be taken as a binding precedent whereas other cited decision in Surya Sankaram Karri’s case (2 supra) can be distinguished on facts. In that case, the accused during trial cross-examined the competency of sanctioning authority. The trial Court however did not approve. In the appeal, Apex Court carped the finding of trial Court in this regard. That is not however the case here.
18) The next argument was that the investigation was commenced long prior to FIR therefore, entire investigation is vitiated. This argument cannot be appreciated upon considering the facts and evidence. During the relevant period the office of SP, CBI was located at Visakhapatnam. PW3— Inspector, CBI while he was camping in Chanukya Lodge, Nellore received Ex.P3—complaint from PW1 on 10.01.2002 at 13 hours and forwarded the original complaint to SP, CBI, Visakhapatnam for registration of FIR. The endorsement on Ex.P3 proves the same. Then PW4—Inspector, CBI, Visakhapatnam (IO) stated that as per the orders of SP he registered the FIR as case in RC 2(A)/2002/CBI, VSKP at 7.30 AM on 11.01.2002. No doubt, in the meanwhile, on 11.01.2002 from 2 AM onwards PW3 commended pre-trap proceedings. Considering the distance from Nellore to Visakhapatnam the time taken for registration cannot be said to be an inordinate delay. Ex.P16—FIR shows that original compliant and FIR were received by the Court at 2.45 P.M. on 11.01.2002. So, there was no delay in dispatching the original complaint and FIR to the Court. Viewing in that angle, merely because PW3 commenced pre-trap proceedings before FIR was registered it cannot be said that there was any manipulation of FIR to suit the case of the prosecution. I find no force in this argument.
19) In the result, in view of the above discussion, I find no merits in the appeal. Accordingly, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court in its judgment in C.C.No.11 of 2002. The appellant/AO is directed to surrender before the trial Court on or before 05.08.2014 and on such surrender the trial Court shall commit him to jail for serving the sentences.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Dt. 21.07.2014
Note: L.R. Copy to be marked: Yes / No
Scs / Murthy
[1] AIR 1957 SC 614 (1)
[2] (2006) 7 SCC 172 = 2006(2) ALD (Crl.) 564 (SC)
[3] (1998) 5 Supreme Court Cases 529
[4] (1999) 8 Supreme Court Cases 501