* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ CRIMINAL APPEAL Nos.1289 and 1343 of 2008
%01.07.2014
Crl.A.No.1289 of 2008
Between:
Sri Gundappa. ... Appellant/ A.1 AND The State, Rep. by Spl.S.C for ACB, Hyderabad. …. Respondent ^ Counsel for Appellant : Sri Akella Srinivas ! Counsel for Respondent : Sri R. Ramachandra Reddy Spl. Standing Counsel for ACB
Crl.A.No.1343 of 2008
Between:
Md. Sadiq. ....
Appellant/A.2 AND The State, Rep. by Spl.S.C for ACB, Hyderabad. …. Respondent ^ Counsel for Appellant : Sri A.Hari Prasad Reddy ! Counsel for Respondent : Sri R. Ramachandra Reddy Spl. Standing Counsel for ACB < Gist:
> Head Note:
? Cases referred:
1) 1997(1) Crimes 186 (SC)
2) (2002) 10 SCC 371 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL Nos.1289 and 1343 of 2008
COMMON JUDGMENT:
Aggrieved by the judgment dated 20.10.2008 in C.C.No.33 of 2004 passed by the learned Additional Special Judge for SPE & ACB cases, City Civil Court, Hyderabad convicting both the accused of the charges under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short “PC Act”) and sentencing each of them to undergo RI for one year and pay fine of Rs.3,000/- and in default to pay fine amount to suffer SI for a period of three months on two counts, AO1—Gundappa preferred Criminal Appeal No.1289 of 2008 and AO2—Md.Sadiq Ali preferred Criminal Appeal No.1343 of 2008.
2) The factual matrix of the case which led to file the Criminal Appeals can be stated thus:
a) Complainant—T.N.Shivaram Setty (LW1) was a native of Nalgonda town and running ‘Meenakshi Lodge’ near Clock Tower Centre, Nalgonda.
b) AO1 was the Revenue Inspector and AO2 was the bill Collector of Nalgonda Municipality. It is alleged that AO1 was residing in one of the rooms of Hotel and he was not paying the room rent regularly. During 2002, the complainant with an intention to remodel the interior portion of the hotel, dismantled and began making interior alternations. While so, AO1 and AO2 approached the complainant and informed that permission has to be obtained to make the constructions of inner portion and that complainant had violated the terms of the Municipalities Act and AO1 threatened that he would dismantle the constructed portion inspite of complainant’s asserting that no permission was required for making interior alterations.
c) It is also alleged that AO1 demanded the complainant to pay Rs.20,000/- towards bribe, otherwise he would dismantle the interior structure. After great persuasion and pleading AO1 reduced the demanded bribe amount from 20,000/- to Rs.10,000/- and instructed the complainant to keep the amount ready at the office room of the Hotel by 08.11.2002 and that AO1 would come and collect the same between 9 and 10 A.M.
d) Unwilling to pay bribe, LW1 submitted an oral complaint before Inspector of Police, ACB (PW6) who reduced the same into writing. After registration of FIR, PW.5—the DSP laid trap on 08.11.2001 with the help of PW.2 and LW.3—the independent mediators. PW1 who was Receptionist-cum- Manager of Meenakshi Lodge of the complainant was asked to act as an accompanying witness.
e) Having laid the trap, the trap party members along with complainant and PW1 went to the Meenakshi Lodge of complainant and the trap party members took position in Room No.77 of the Lodge. At about 11.30 AM both the AOs. came to the office room of the complainant and after AO1 reiterated his earlier demand, the complainant gave the tainted amount of Rs.10,000/- to AO1, who accepted and handed over the same to AO2. Having witnessed the same, PW1 went into the Room No.77 and informed the trap party about the demand and acceptance. Immediately the trap party members rushed to the office room of complainant and subjected both the hand fingers of AO2. The right hand fingers of AO2 yielded positive result and on questioning by TLO, he produced the amount before the mediators. The mediators verified the numbers and denominations of the notes and they tallied with the denominations and numbers mentioned in the pre-trap proceedings. All the aforesaid were reduced into writing in post- trap proceeding and both the AOs. were arrested and amount was recovered.
f) On appearance of the accused, the trial Court framed charges under Sections 7 and 13(1)(d) r/w 13(2) of PC Act against AOs. and conducted trial.
g) Pending trial, de facto complainant expired.
h) During trial, prosecution examined PWs.1 to 7 and got marked Exs.P1 to P12 and exhibited MOs.1 to 8. DW1 was examined and Exs.D1 and D2 were marked on behalf of defence.
i) The defence plea is one of total denial of the offence.
j) AO1 admitted that he stayed in a room in the lodge of de facto complainant. Then, the version of AO1 and AO2 was that on the representation of complainant, they went to the lodge of AO1 and received the amount from de facto complainant towards arrears of tax and handed over the same to AO2 who was the Bill Collector and meanwhile, the ACB officials came and caught them.
k) A perusal of the judgment would show that taking the admission of accused that they received the amount from the complainant, the trial Court opined that the burden was on the accused to establish that the amount received by them was only towards part payment of arrears of tax but not as bribe but they failed to prove firstly that they were competent to receive the tax and secondly that they were competent to receive part- payment of tax. Ultimately, trial Court came to the conclusion that both the accused demanded and accepted illegal gratification other than legal remuneration and accordingly convicted and sentenced them as stated supra.
Hence, the appeals.
3) As per the orders in Crl.M.P.No.2035 of 2013 dated 24.03.2014, the matter was expedited and taken up for hearing.
4) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for appellant/A1 in Crl.A.No.1289 of 2008, Sri Akella Srinivas Rao, learned counsel for appellant/A2 in Crl.A.No.1343 of 2008 and Sri R.Ramachandra Reddy, learned Special Standing Counsel for ACB (Spl.S.C).
5 a) Impugning the judgment learned counsel for AO1 firstly argued that the prosecution failed to prove the vital ingredients of the offence i.e. demand and acceptance of bribe. Expatiating it he argued that as per prosecution, de facto complainant and PW1 are the two persons who know about the demand and acceptance of bribe but de facto complainant since died and PW1 did not support the prosecution case on the aspect of demand and acceptance of bribe, the trial Court ought to have held that prosecution failed to prove the vital ingredients of the offence. However, the trial Court on a wrong appreciation of facts, evidence and law held as if the prosecution by substantial evidence proved those vital ingredients and drew the presumption under Section 20 of PC Act against accused and held as if accused failed to rebut the presumption.
b) Secondly, learned counsel argued that the trial Court committed a total blunder in appreciation of explanation offered by the accused. He submitted that Ex.D1 would clearly show that long prior to the trap, the Nalgonda Municipality issued demand notice to the de facto complainant regarding arrears of tax and it would support the defence theory that both accused went to the lodge of the complainant in fact to collect the arrears of the tax. Learned counsel vehemently argued that if really the purpose of their visit was to further demand and accept the bribe, there was no need for AO1 to take AO2 all along from the Municipal Office to the lodge. This would show that AO1 bonafidely believed the representation made by the complainant on the morning of the trap that he would pay the arrears of tax if AO1 brings Bill Collector (AO2) to the lodge and accordingly took him to the lodge. Learned counsel argued that the defence explanation would get strength also from the fact that on seeing the trap party the accused were neither perplexed, or tremored nor AO2 tried to hide or throw away the tainted amount in his hands and on the other, they gave a spontaneous explanation that they received the amount bonafidely believing the representation of the complainant that he was going to pay arrears of the tax and this spontaneous explanation was found place in Ex.P5 (second mediators’ report) also. Learned counsel further submitted, the fact that the amount was in possession of AO2—Bill Collector would further strengthen the defence theory that since it was represented by the complainant that he was paying the arrears of the tax, AO1 received the same and immediately handed over to AO2 who being the Bill Collector authorised to receive and hold the amount.
6 ) Whereas learned counsel for AO2 while adopting the arguments of AO1 further argued that in this case absolutely there was no allegation of demand of bribe by AO2 and in fact even according to prosecution, he went to the lodge of the de facto complainant only on the date of trap. If the defence version is believed, he went to the lodge only on the representation of AO1 to the effect that the de facto complainant told him that he was going to pay the arrears of the tax and asked him to bring him (AO2) for that purpose. Learned counsel argued that Ex.D.1—demand notice would clearly show that Nalgonda Municipality had already issued notice to de facto complainant for payment of tax. He submitted that it is a common knowledge that Bill Collector would personally go to respective premises and collect the tax and following the same procedure, in this case also he went to the lodge of the complainant and when de facto complainant paid the amount of Rs.10,000/- on the pretext of payment of arrears of tax, AO1 received and transferred to him and he accepted that amount and in the meanwhile the ACB officers came and caught hold them. Learned counsel vehemently argued that the amount only represent the part-payment of tax but not the illegal gratification. Learned counsel submitted that unless prosecution by cogent evidence establish that the amount received by the accused was other than the legal remuneration, the presumption under Section 20 of P.C. Act cannot be drawn. On this point, he relied upon the decision reported in Mohmoodkhan Mahboobkhan Pathan vs. State
[1]
of Maharashtra . Learned counsel further submitted that AO2 is competent to receive part-payment of the tax and in fact during the subsequent period, the Government issued G.Os to the effect that if the assessee pay the arrears of tax either fully or instalments wise, interest would be waived. He submitted some G.Os to that effect and argued that receiving of tax in instalment wise was in vogue. He argued that unlike prosecution, the accused need not prove their defence rigorously and suffice if they could prove the defence by showing the preponderance of probability.
Both the appellants thus prayed to allow their respective appeals.
7 a) Per contra, while supporting the judgment, learned Spl.S.C firstly argued that though PW.1 turned hostile, the trial Court by taking the admissible portion of his evidence coupled with the corroboration provided by PW.2—the mediator and PW.5—Trap Laying Officer (TLO) has ultimately held that the prosecution through the circumstantial evidence could able to establish the demand and acceptance of the bribe by the accused and in that process, further held that the accused failed to establish the defence plea taken by them. Thus the finding of the trial Court was factually and legally justified and there is no need to interfere with the same.
b) Secondly, he argued that the defence plea was illogical and untenable for many reasons. He argued that if really the municipality issued Ex.D.1—notice to the de facto complainant calling for payment of arrears of tax, there was no reason why the accused did not produce the said notice before the Investigating Officer during the course of investigation. Further, PW.1 though turned hostile clearly deposed that he did not receive any such notice as Manager of the lodge. Hence the alleged issuance of notice to the complainant is an afterthought to create a make-believable defence theory. Added to it, the accused failed to prove by cogent evidence that in fact they were authorised to collect taxes that too part payments from the assessee as proclaimed by them in this case. He thus prayed for dismissal of appeals.
8) In the light of above divergent arguments, the point for determination these appeals is:
“Whether the judgment of the trial Court is factually and legally sustainable?”
9) POINT: It being a trap case, prosecution shall by cogent evidence, establish the demand and acceptance of the bribe by the accused to enable the Court to draw presumption under Section 20 of P.C.Act. Unfortunately, defacto complainant (LW.1) died even before commencement of trial, and hence the trial Court had had no advantage of his evidence on the vital ingredients of the offence i.e, demand and acceptance of the bribe. So the prosecution case virtually pivoted on the evidence of PW.1 who was the receptionist-cum-manager in Meenakshi Hotel and Lodge, Nalgonda run by the de facto complainant. PW.1 no doubt gave evidence but did not support prosecution case on some aspects and so he was declared hostile and cross-examined by learned Special Public Prosecutor. Before discussing the probative value of his evidence to know whether it serve any useful purpose to prosecution, it is pertinent to mention the principles laid down b y Hon’ble Apex Court on appreciation of the evidence of a hostile witness.
10) In its latest judgment (Paulmeli and another vs. State of Tamil Nadu, Traffic Inspector of Police (MANU/SC/0505/2014)) , Hon’ble Apex Court happened to discuss its previous judgments on the aspects 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.”
In the light of above principles, it is now to be seen whether the evidence of PW.1 offers any useful material helping the prosecution case and whether that part of his evidence was amply corroborated by other witnesses.
11) In the evidence of PW.1, the following important points were emerged:
· I know AO1 who was staying in our Lodge by taking a room and he was not paying the room rent regularly.
· During the year 2002, due to vastu variations, our Proprietor T.N. Shivaram Setty (LW1) intended to dismantle the interior portion of the Hotel and accordingly in October, 2002 he dismantled the interior portion and started modification as per vastu.
· During the time of construction works, AO1 has enquired me about the said works and I told that our owner was making constructions.
· About 15 days after the date of construction of the interior portions of the Hotel, LW.1 informed me that AO1 was asking money and he informed me that we have to go to ACB office and this conversation took place between us in October and
November, 2002.
· In the month of November on the instructions of LW.1, I went along with him to ACB office and there the DSP introduced some Government Officers and then told me that LW.1 gave complaint against AO1 and AO2 and asked me whether I can act as witness and I agreed. Then the DSP instructed me to go to the lodge with LW.1 and inform them (trap party) about the arrival of the accused to the lodge.
· At about 9:00am, LW.1 and I returned to Meenakshi Hotel and DSP and other trap party members also came to the lodge and I allotted them Room No.77 which was by the side of the office room of Proprietor.
· After half an hour, AO1 and AO2 came to our Hotel and asked me about LW.1 and I told them to go to upstairs to his office room as he was available in that room. Half an hour thereafter, I heard a sound of the bell rang up from the office room of LW.1 and hearing the same, I went and informed DSP, ACB who along with others were present in the Room No.77, the DSP and trap party members immediately went to the office room of my Proprietor whereas I came down to my counter and about 1 ½ hour, the trap party members, LW.1 and AO1 and AO2 were in the office room and except that I do not know anything and I was not called by the DSP and I was not examined by him.
Cross-examination: In the cross of learned Special Public Prosecutor, the following points emerged.
· The constructions were going on in October, 2002, AOs1 and 2 came and enquired me about the constructions and I told them that our Proprietor was making modifications.
· It is not true to suggest that AOs1 and 2 informed me that we were effecting the modifications without permission and on that I told that the constructions were made only in the inner side of the lodge and no permission was required. It is not true to suggest that AOs1 and 2 cautioned me that if the constructions were made without permission, the municipality will dismantle.
· It is not true to suggest that AOs1 and 2 demanded the amount of Rs.20,000/- as bribe to permit for constructions in the lodge as
otherwise they will dismantle the constructions.
· It is not true to suggest that LW.1 informed AO1 that he was not getting proper income for the lodge and requested to show some mercy and on that AO1 agreed to receive Rs.10,000/- as bribe.
· It is not true to suggest that AO1 asked me two or three times about the demanded bribe amount for which I expressed my inability and asked him to go and meet my owner.
· It is not true to suggest that my Proprietor informed me that AO1 demanding Rs.10,000/- as bribe and we have to think over and plan.
· It is true that on 08.11.2002 on the instructions of my owner I followed him to the ACB office at about 7:30am.
· It is true that DSP instructed me to follow my owner to the Lodge and in case AOs1 and 2 demanded and accepted bribe of Rs.10,000/- from LW.1, I have to give intimation to the DSP and trap party.
· It is true that I and my Proprietor left to our Lodge and after sometime the DSP and trap party came to our lodge and LW.1 showed Room No.77 and they occupied it.
· It is not true to suggest that on 08.11.2002 at about 11:45 am, AOs.1 and 2 came to office room while myself and my owner were present in the office room and I witnessed when the AO1 demanded Rs.10,000/- bribe from my owner and threatened to demolish the constructions already made by us and that my owner picked up Rs.10,000/- from his lalchi pocket and gave it to AO1 and AO1 verified the said currency notes and handed over to AO2. Thereafter, I went to Room No.77 and informed the DSP, ACB about the demand and acceptance and they rushed to the office room and the DSP asked me to be present with him and the trap party.
· It is not true to suggest that I witnessed the trap incident and DSP conducting chemical test to the AOs and recovery of amount from them etc.,
· It is true that on 08.11.2002 the DSP ACB examined me and recorded my statement.
12) Thus a threadbare analysis of the underlined portions of the evidence of PW.1 would show that he has not supported the prosecution case on the two vital ingredients of the crime i.e, demand and acceptance of bribe by the accused. He has not admitted either his personal knowledge about the demand and acceptance or about the de facto complainant informing him about the demand made by the accused for bribe. Though in the chief-examination he stated that LW.1 informed him that AO1 was asking money but in the cross-examination he denied the very same aspect i.e, his Proprietor informing him that AO1 demanded Rs.10,000/- as bribe. Thus, he showed volte-face on the aspects of demand and acceptance of bribe by the accused. At this juncture, I am constrained to mention here the blunder committed by the prosecution. Though the prosecution declared PW.1 as hostile and cross-examined him with reference to his earlier statements recorded under Section 161 Cr.P.C and 164 Cr.P.C. but prosecution failed to get mark the portions of those statements which were confronted and denied by PW.1 for appreciation of the Court. So strictly speaking, the trial Court and appellate Court were deprived of the advantage of looking into the previous statements of this witness for comparison and assessment of his evidence. Be that as it may, the evidence of PW.1 is not helpful to prosecution to prove the aspects of demand and acceptance.
a ) However, the trial Court found, despite PW.1’s turning hostile, some part of his evidence coupled with corroboration offered by PW.2 and PW.5 and other circumstances could amply prove the guilt of the accused and moreover the accused failed to establish their defence plea and thus they are liable for the charges. I am unable to agree with the finding of the trial Court. As already stated supra, PW.1’s evidence is not helpful to establish the aspect of demand and acceptance of bribe. After severing chaff from the grain, at best his evidence will be useful to the prosecution to the extent that PW.1 followed the de facto complainant to the ACB office on the date of trap and PW.5 instructed him to be with the de facto complainant and if accused made a further demand and accepted bribe, then come to the trap party members positioned in the adjacent room and inform and he agreed the same and though he did not personally see accused demanding and accepting the bribe, he went to Room No.77 and informed the PW.5 about the arrival and presence of AOs in the office room of de facto complainant. The aforesaid admissible part of his evidence, it must be said, will not be of much use to the prosecution in view of the admission of the accused that they in fact visited lodge-cum-hotel of de facto complainant and met him and also received the amount from him. Their defence plea was that what they received from LW.1 under bonafide belief was arrears of tax but not the bribe. So the crucial point is whether the LW.1 paid the amount as bribe or as part of the arrears of tax. Needless to say that the primary burden will be on the prosecution to establish that the amount was paid as illegal gratification other than legal remuneration. Then only the presumption under Section 20 of P.C. Act would follow, necessitating the accused to rebut the same by cogent explanation. Since the evidence of PW.1 will be of no avail in that direction it has to be seen whether the evidence of PWs.2 and 5 would establish the demand and acceptance of the illegal gratification by the accused.
b ) PW.2 is the mediator. His evidence would show, admittedly he was not instructed by the TLO to follow de facto complainant and watch what was going to transpire between him and the accused and report to the other members of the trap party. Thus he was in not used as a shadow witness in this case. He and the other mediator (LW.4) attended pre-trap proceedings in the ACB office on the date of trap and then followed PW.5—T.L.O to Meenakshi Lodge and waited along with him in Room No.77 for the signal of PW.1. According to PW.2, after sometime PW.1 came and informed about accused receiving the bribe amount and then he and other members of the trap party rushed to the office room of the de facto complainant. Thus, it is clear that PW.2 was also not a direct witness who waited the events transpired between the de facto complainant and accused. Hence, his evidence is not helpful to establish that the amount paid by LW.1 was towards illegal gratification. Ofcourse, in his evidence PW.2 deposed that PW.1 came to Room No.77 and informed the trap party members about the demand and acceptance of bribe by the accused from the de facto complainant. So PW.2 claimed to have heard from PW.1 that he (PW.1) saw accused demanded and accepted bribe from the de facto complainant. So the point is whether this part of his evidence will help prosecution to prove the demand and acceptance of the bribe by the accused. It must be an emphatic no because PW.2’s evidence is a hearsay evidence and this part of PW.2’s evidence when confronted to PW.1, was not admitted by him. It may be recapitulated that in the cross-examination, PW.1 denied the suggestion that he (PW.1) witnessed AO1 demanded Rs.10,000/- as bribe from his owner and his owner picked up the amount from his lalchi pocket and gave it to AO1 and he verified the currency notes and handed over to AO2 and after that he (PW.1) went to the Room No.77 and informed the DSP ACB about the demand and acceptance of the bribe amount by the accused from his owner. So when the entire evidence of PW.1 is perused, what all he admitted is he went and informed to the trap party members about the presence of the accused in the office room of de facto complainant. But he has not admitted that he personally saw accused demanding and accepting the bribe from his owner and his revealing the same to the trap party members by going to Room No.77. When, for whatever reason PW.1 was not admitting this crucial fact, it will not be safe to believe from PW.2 that he said so. Similar is the case with PW.5. He too deposed that at about 11:45 am, PW.1 came and informed to the trap party members about the demand and acceptance of bribe by AO1 from the complainant. When PW1 denies his personal watching of the passing of the money and his stating to the trap party members as if the accused demanded and accepted the bribe from the de facto complainant, the hearsay evidence of PW.5 cannot be accepted. So on a conspectus of the evidence of PWs.1, 2 and 5, it must be said that prosecution failed to establish the demand and acceptance of the bribe in a cogent and convincing manner. The evidence of other witnesses is also not helpful as they were examined on other different aspects. In the cited decision (1 supra), it was held that unless prosecution proved that the money paid was not towards any lawful collection or legal remuneration, the Court cannot draw presumption under Section 4(1) of P.C.Act.
13) Now the defence explanation has to be perused. As already stated, their version is that they received the amount on the belief that it was paid towards arrears of tax. The point is whether the accused could convincingly establish the same. In this context, Hon’ble Apex Court in a decision reported in
[2]
Punjabrao vs. State of Maharashtra has held thus:
“It is too well-settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the
prosecution, but can establish the same by preponderance of probability.”
So the defence plea has to be decided on the touch- stone of preponderance of probability. They examined DW.1 to show that during the relevant period, the Nalgonda Municipality issued notice to the de facto complainant calling for payment of tax. DW.1—the Municipal Commissioner deposed that he issued notice under the original of Ex.D.1 on 28.09.2002 demanding the complainant to pay arrears tax of Rs.42,656/-. He further stated that AO2—the Bill Collector received the notice and the notice was served on the complainant. In the cross-examination he clearly stated that Ex.D.1 will not contain inward or outward number because the notice will be served through the Bill Collector. It may be noted that Ex.D.1 contains the signature of the de facto complainant as T.N. Shivaram Setty. The plea of accused is that on the date of trap the complainant asked AO1 to bring the Bill Collector so that he will pay the arrears of the tax amount and accordingly, AO1 went and brought AO2 to Meenakshi Lodge and they received the amount. The trial Court rejected the defence pleas firstly on the ground that PW.1 stated that he has not received any demand notice from Municipal Commissioner. It must be said that this observation is wrong. The demand notice might not have been served on PW.1 personally during his presence in the lodge but it might have been served on the complainant. It must not be forgotten that Ex.D.1 contains the signature of the complainant. The argument of learned Spl.S.C in the appeal also cannot be accepted. Merely because accused did not produce the Ex.D.1 during investigation, its genuineness cannot be doubted particularly when DW.1—the Municipal Commissioner avouched its genuinity. The second ground on which the trial Court rejected the defence plea was that the accused could not establish that they were competent to receive the tax and further, they were competent to receive part-payment of the tax. This objection also is quite untenable for the reason that the prosecution neither during the evidence of PW.4—the Chairperson of Nalgonda Municipality nor during the evidence of DW.1—the Commissioner, has posed a question to them regarding the aforesaid competency of AOs. Both PW.4 and DW.1 are the competent persons to speak about this aspect. When prosecution did not raise such a question, it cannot later contend that the accused were incompetent either to collect the tax or to collect it installment wise. Competency is concerned, PW.1 in his cross-examination clearly stated that the municipal bill collector used to come to the lodge and collect the tax and issue the receipts. So the competency of AO2 need not be doubted. When the doubts raised by the trial Court are shelved, the defence theory would appear to be probable. Further, most importantly, the accused offered a spontaneous explanation to the TLO regarding the purpose of their receiving the amount from the de facto complainant. Added to it, AO1’s bringing along with him AO2 to the lodge gives strength to the defence plea that they came to receive the tax on the representation of the de facto complainant. It was argued by learned counsel for appellants that if really AO1 wanted to receive bribe, he alone would have received the same and there was no need to bring AO2. So all the above would cumulatively probablised the defence plea. As already observed supra, the defence can establish its stand through preponderance of probability and not by proving beyond reasonable doubt. The defence could succeed in this regard.
14) So on a conspectus of the entire facts and evidence on record, it must be said that prosecution failed to prove the demand and acceptance of illegal gratification by the accused. On the other hand, the accused succeeded to prove their explanation. Hence, the judgment of the trial Court is liable to be set aside.
15) In the result, Criminal Appeal Nos.1289 and 1343 of 2008 are allowed setting aside the conviction and sentence passed by the trial Court in C.C.No.33 of 2004. The bail bonds of the accused shall stand cancelled.
As a sequel, pending miscellaneous petitions if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 01.07.2014
Note: L.R. Copy to be marked: YES / NO
Scs / Murthy
[1] 1997(1) Crimes 186 (SC)
[2] (2002) 10 SCC 371