* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Appeal No.412 of 2006
%01.09.2014
Between:
State rep. by Dy.Supdt. of Police,
ACB, Visakhapatnam. ....
Appellant
AND K. Raghuram. ….
Respondent
! Counsel for Appellant : Sri M.B. Thimma Reddy Spl. Public Prosecutor for ACB ^ Counsel for Respondent : Mrs. D. Sangeetha Reddy < Gist:
> Head Note:
? Cases referred:
1) (2004) 3 SCC 767 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL No.412 of 2006
JUDGMENT:
Aggrieved by the judgment dated 14.02.2005 in C.C.No.62 of 2000 passed by the learned Special Judge for ACB cases, Visakhapatnam acquitting the Accused Officer (AO) of the charges under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short “PC Act”) the ACB preferred the instant Criminal Appeal.
2) The factual matrix of the case is thus:
a) AO—Kandregula Raghuram worked as Agricultural Officer (Technical) in the office of Joint Director (Agriculture), Visakhapatnam during 1995.
According to prosecution, Noolu Venkata Gowreswara Rao—complainant (PW1), the proprietor of M/s.N.G.S.Pharmacy, Visakhapatnam who was running a medical shop submitted an application dated 23.12.1994 to the Joint Director (Agriculture), Government of Andhra Pradesh, Visakhapatnam for sale of pesticides manufactured by M/s.Sujanil Chemo Industries, Pune and Pest Control of India, Bombay for bugs and mosquitoes by remitting a sum of 300/- towards licence fee. The AO has recommended for granting the said licence on 06.01.1995 and note was put up by the concerned and submitted to the Joint Director on 12.02.1995 for necessary approval and the same was approved on 18.02.1995. Accordingly, licence bearing No.231/94-95 was issued by the Joint Director authorising PW1 to sell the products of Pest Control of India Limited, Bombay only.
b) Then PW1 visited the office of Joint Director and met the AO and asked him as to why permission was given only to sell the products of one company when he applied for two companies. AO informed PW1 that principal certificate was not in force and it was expired and therefore it was not possible to issue licence for the sale of products of Sujanil Chemo Industries. Then PW1 showed the principal certificate to AO by informing that it was not expired and inspite of that the AO did not hear PW1.
c) PW1 met the AO on several occasions but of no use. Therefore, on 01.09.1995 PW1 addressed a letter to the Joint Director (Agriculture), Visakhapatnam requesting him to add in his licence permission to sell the products of Sujanil Chemo Industries and obtained acknowledgement. Then AO asked PW1 to address a letter to Sujanil Chemo Industries requesting it to send principal certificate to the office of Director of Agriculture, Andhra Pradesh, Hyderabad. At that time PW1 told AO that it would take time and asked him as to how to sell the products in the meanwhile. For that AO stated to PW1 that the matter relating to the correspondence for the licence was in progress and there would be no problem for sale of those products and if at all there was any check, he (AO) only has to book the case and therefore in order to avoid further problems, he demanded Rs.5,000/- as bribe. When PW1 expressed his inability to pay the said amount, AO reduced it to Rs.1,000/- and demanded him to pay the same within ten or fifteen days.
d) On 21.09.1995 at about 1.00 PM AO visited the shop of PW1 and asked him as to why the demanded amount was not brought and paid and threatened to make a visit along with Vigilance Officer and seize the stocks and book a case by taking samples of various products under sale unless the demanded amount was paid before 25.09.1995.
e) Unwilling to pay bribe, PW1 submitted Ex.P1— complaint to DSP, ACB, Visakhapatnam (PW4) on 22.09.1995 who registered the same as a case in Cr.No.7/RC-SLR/95 and successfully laid a trap against AO on 25.09.1995. On completion of investigation charge sheet was laid against AO.
f) On appearance of the AO charges under Sections 7 and 13(2) r/w 13(1)(d) of PC Act were framed against him and conducted trial.
g) During trial, PWs.1 to 4 were examined and Exs.P1 to P21 were marked and MOs.1 to 9 were exhibited on behalf of prosecution. DW.1 was examined and Exs.D1 to D4 were marked on behalf of defence.
h) The trial Court on appreciation of evidence held that prosecution failed to prove the vital ingredients such as demand and acceptance of bribe and accordingly acquitted the AO.
Hence, the appeal.
3) Heard arguments of Sri M.B.Thimma Reddy, learned Special Public Prosecutor (Spl.P.P) for ACB and S r i A.Hari Prasad Reddy, learned counsel for respondent/AO.
4) Impugning the judgment, learned Spl.P.P argued that in this case the evidence of PW.1 coupled with the corroborating evidence of PWs.2 to 4 would clearly show that the AO demanded and accepted bribe of Rs.1000/- from PW1 to do an official favour of allowing him to sell the pesticide product of M/s.Sujanil Chemico Industries, Pune without licence. Expatiating it, he argued that on 01.09.1995 when PW.1 went to the office of the Joint Director (Agriculture), Visakhapatnam and submitted a representation (Ex.P.9) that licence was issued to him to sell pesticides of only one company i.e, Pest Control (India) Limited, Bombay, though he applied for licence for two companies i.e, Pest Control (India) Limited, Bombay and M/s. Sujanil Chemico Industries Limited, Pune and requested to issue licence for the other company also and in that context when he met the AO who is the Agricultural Officer, the AO informed him that the licence was not issued by the Joint Director because the Principal Certificate of M/s. Sujanil Chemico Industries Limited, Pune was expired and asked him to address a letter to M/s. Sujanil Chemico Industries Limited, Pune requesting to send their Principal Certificate to the office of Director, Agriculture, A.P, Hyderabad. On that when PW1 represented to him that this would take long time, then AO informed him that since the matter was under correspondence with Sujanil company, there would be no problem for him to sell the products of that company pending issuance of licence and since the AO himself has to check the shop of PW1, he would not book any case against him in this regard and for that purpose initially he demanded Rs.5000/- as bribe and on the request of PW1, reduced the same to Rs.1000/-. Learned Spl.P.P further argued that on the date of trap i.e, on 25.09.1995 also AO demanded the said amount and accepted from PW1 and the tainted bribe amount of Rs.1000/- was recovered from rexine bag of AO (MO5) and chemical test conducted on his hands also proved positive which implies that he demanded and accepted the bribe amount. In the light of these facts, the presumption under section 20 of P.C. Act would squarely follow against the AO. He further argued that the defence explanation in this regard is quite a misfit to the facts and circumstances of the case and hence the trial Court ought not to have accepted the same. He argued that during the trap, the AO no doubt has offered explanation as if PW.1 paid him Rs.1000/- towards challans licence fees and he too received the same for the said purpose but not as bribe. However this explanation, learned Spl.P.P. argued, is quite untenable because by the date of trap and even by the date of demand no challan fee for pesticide licence was due from PW1 as he already paid challan fee of Rs.300/- vide Ex.P.4. As per the evidence of PW.3, one licence fee of Rs.300/- is sufficient to issue licence for any number of companies and as PW.1 already paid licence fee under Ex.P.4, there was no need for him to pay any amount for obtaining licence for selling the pesticide of M/s. Sujanil Chemico Industries Limited, Pune. Therefore, the explanation of AO that PW.1 paid him Rs.1000/- towards licence fee and he received the same for that purpose is unbelievable. He further argued that even assuming that PW.1 was again required to pay licence fee for selling the products of M/s. Sujanil Chemico Industries Limited, Pune, he would have to pay only Rs.300/- for that purpose but not Rs.1000/-. Therefore, there was no necessity for PW.1 to pay Rs.1000/- to AO. However, the amount received by AO was Rs.1000/- which implies that the said Rs.1000/- is only bribe amount but not the licence fee. Therefore, the explanation is not correct.
a) Learned Spl.P.P further argued that knowing that his defence plea was fallacious and would not fit into the facts of the case due to the huge difference between the licence fee amount and amount received by him, the AO came up with a different defence plea of course with the tacit connivance of PW.1 during his cross-examination. The AO came up with another defence version that apart from applying for licence to sell the pesticides, PW.1 also applied for licence to sell Agro products including fertilizers during the relevant period (vide Ex.D.4) and the licence fee for that purpose is Rs.1000/- and on the date of trap PW.1 paid him the said licence fee of Rs.1000/- for fertilizer licence and he accepted the same for that purpose and not as bribe. Learned Spl.P.P. argued that this argument is only an afterthought and Ex.D.4— application and concerned application form were subsequently fabricated which can be inferred from the correction of the date 23.08.1995 appearing in the application form. Therefore, the trial court ought not to have believed the defence theory putforth by AO and ought to have convicted the AO holding that he failed to rebut the presumption under Section 20 of P.C Act. He thus prayed to allow the appeal.
5) Per contra, while supporting the judgment learned counsel for respondent/AO argued that AO never demanded bribe from PW.1 and he has not accepted the amount towards bribe. On the date of trap he received the amount of Rs.1000/- only towards the licence fee “for fertilizers licence” as PW.1’s application for fertilizers licence under Ex.D4 was pending in the office of AO during the relevant period. That was why, without any hesitation or mincing words, AO submitted his explanation before the trap party members that he received the amount of Rs.1000/- only towards licence fee. Even in Ex.P.21 explanation also he honestly mentioned that when PW.1 paid the amount he received believing that the said amount was towards licence fee for fertilizers licence. Learned counsel submitted that though in Ex.P.14—second mediator report and Ex.P21—statement the amount of Rs.1000/- was not specifically mentioned as licence fee “for fertilizers licence”, still his explanation can be understood as for the fertilizers only because as per rule, PW.1 need not pay any more licence fee for pesticide licence as the amount of Rs.300/- already paid by him under Ex.P.4 is sufficient for issuing licence of any number of companies. His explanation is probablised by the admission of PW.1 who admitted that he applied for fertilizers licence during the relevant period. Similarly, PW.3 admitted that licence fee for fertilizers licence is Rs.1000/-. So also DW.1 stated that PW.1 applied for fertilizers licence under Ex.D4—application. Learned counsel vehemently argued that the evidence of PW.1, PW.3 and DW.1 would clearly show that during the relevant period PW.1 applied for fertilizers licence apart from applying for pesticide licence and the licence fee for fertilizer licence is Rs.1000/- and on the date of trap when PW.1 paid Rs.1000/-, AO received the same believing that the said amount was towards licence fee for fertilizers but not as bribe. The trial Court on a thorough evaluation of the above evidence has accepted the defence plea and rightly acquitted the AO. He further argued that though prosecution faintly contended as if Ex.D.4 was fabricated but did not take steps to refer the said document to the handwriting expert for comparison of the handwritings and signatures of PW.1 appearing on Ex.D.4. Therefore, in this appeal the prosecution cannot agitate that aspect. He thus prayed to dismiss the appeal.
6) In the light of above arguments, the point for determination in this appeal is:
“Whether the judgment of the trail Court acquitting the AO is factually and legally sustainable?
7a) POINT: It being a trap case, needless to emphasise that prosecution shall by cogent evidence establish the two vital ingredients of the offence i.e. demand and acceptance of bribe by AO to establish the charges levelled against him. In this context, of the prosecution evidence, PW1 is the corner stone to establish prosecution case because other than PW1 none others witnessed the demand and acceptance of bribe by AO. Therefore, it is pertinent for this court to scrutinize the evidence of PW1 to find out whether his evidence offers sufficient proof of demand and acceptance of bribe and whether the other witnesses provided sufficient corroboration on material particulars.
b) A threadbare analysis of the evidence of PW1, it must be noted, would show that though in the chief examination he narratively supported the prosecution, but in the cross-examination he tacitly answered in support of defence case on some material aspects of the case. It is important to further note that the prosecution neither declared PW1 hostile after the cross-examination nor tried to elicit explanations during re-examination on the controversial points spoken by him during his cross- examination. Hence, the facts spoken by PW1 in the cross-examination remained un-controverted. The effect of such unchallenged evidence was discussed by Honourable Apex Court in a decision reported in K.
[1]
Anbazhagan v. Superintendent of Police and others as follows:
“..In the present case, the Public Prosecutor has not sought permission from the Court by resorting to Section 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice.”
Thus, the Supreme Court observed that when the witness resiled from his earlier evidence in chief examination and deposed facts in cross suicidal to prosecution and in spite of the same, when the public prosecutor takes no steps either to declare the witness as hostile or seeks permission of the Court under Section 154 of Indian Evidence Act to put any questions to him which might be put in cross-examination by the adverse party, such evidence in the cross-examination remains uncontroverted and trial court find it difficult not to accept the subsequent testimony of witness.
c) In the light of above legal position, the probative value of evidence of PW1 with regard to vital aspects of demand and acceptance of bribe has to be tested.
8A) Coming to the evidence of PW1, in the chief examination regarding the aspect of demand of bribe by AO he deposed as follows:
“I have applied for licence in the 1994 and the licence was issued to me in the year 1995 to deal with the products of Pest Control of India. I went to the Agricultural office at Visakhapatnam and met the Accused Officer. I have to enclose principal certificate issued by concerned company to the application for issuance of licence and I was informed by the Accused Officer that the principal certificate issued by Sujanil Chemo Industries was expired. Though it was not expired the AO falsely stated that it was expired. AO asked me to get principal certificate register from the Director of Agricultural office, at Hyderabad. He warned me not to sell the pesticides for bugs till the licence is issued. He also warned to book cases, if the drugs are sold. The AO demanded Rs.5,000- as bribe to allow me to sell pesticides for bugs. I requested him to reduce the same as I have no business and the AO reduced it to Rs.1,000/- He demanded me to pay within ten or fifteen days. I was reluctant to pay the same. xx xx xx xxx In the month of September, 1995 the AO came to my shop and demanded me to pay the bribe amount of Rs.1,000/- and threatened to book cases against me, if I sell pesticides without licence. I agreed to give the amount within four or five days in his office. As I was reluctant to pay the bribe amount, I approached the Dy.S.P., ACB, Visakhapatnam. I gave Ex.P1—complaint.”
Thus, in the chief examination he clearly deposed as if AO demanded him bribe of Rs.5,000/- and reduced to Rs.1,000/- and subsequently also when he visited his shop he reiterated his earlier demand.
Coming to cross-examination he deposed as follows:
“When the AO visited my shop he asked me to pay Rs.1,000/- and I though that it is towards bribe. At the first instance I gave an oral report to the Dy.S.P., and the Dy.S.P. demanded me to give a written complaint and therefore, I submitted Ex.P1. When the Dy.S.P. asked me about the purpose of payment of Rs.1,000/- to the AO., I informed the Dy.S.P., that I was of the opinion that it was demanded towards bribe. Thereupon the Dy.S.P., asked me to write in Ex.P1 that the amount is towards ‘bribe’ and accordingly I used the word BRIBE in Ex.P1. I took the assistance of ACB staff in drafting Ex.P1.” xx “At the first instance the staff members of the office of AO informed me that Rs.5,000/- is required towards expenses and subsequently it was affirmed by AO” xx “I know Sri Satya Sai Agricultural Centre, Dabagardens, who deals with Agricultural products. I went to the house of Accused Officer, and submitted an application to AO in respect of licence of agricultural products. I requested AO to arrange for principal letter through Sri Satya Sai Agriculture Centre. The AO asked me to get the licence fee of Rs.1,000/- paid through the office staff for the licence of agricultural products and for which I agreed. When the AO visited my shop, he stated to me that unless the existence of Sujanil Chemo Industries is verified licence cannot be issued to me”
A perusal of answers in the cross-examination would give an indication as if PW1 was not affirmative that AO demanded him bribe of Rs.5,000/- at first and then reduced it to Rs.1,000/-. Rather he was telling as if he was of the opinion that Rs.1,000/- was demanded towards bribe and since the DSP (PW4) asked him to mention in Ex.P1 that amount was towards “bribe” he accordingly used the word “bribe” in Ex.P1 and in that process, he took the assistance of ACB staff in drafting Ex.P1.
Needless to say that this version in cross-
examination is quite contrary to his version in chief examination relating to demand and further demand of bribe by AO. By his answers in the cross-examination he allowed to create a doubt as to what was asked by AO to him might not be bribe but fee for “fertilizer licence”.
B) Then, on the aspect of acceptance of bribe, the evidence of PW1 in the chief examination is thus:
“By the time I reached the office of AO, the AO was talking in a phone by sitting in his seat. He asked me to sit in a chair. After conversation in the phone the AO started climbing the stair case in order to go to the second floor. I followed him. No body was present in the second floor. After reaching the second floor I picked out the tainted currency notes from my pocket and gave them to AO. He received them with his left hand and folded the currency notes with his right hand and kept them in a brown colour rexine bag. When we were getting down from 2nd floor to 1st floor, I saw S.I. Baburao and gave the pre-arranged signal by removing my spectacles and wiping my face with my towel”
In the cross-examination PW1 stated as follows: “ The Dy.S.P. asked me to give the tainted amount of Rs.1,000/- to AO, as there was an earlier demand and accordingly I gave the tainted amount of Rs.1,000/- to AO on the date of trap and as it was received by AO. I came to a conclusion that it was in consideration of earlier demand made by AO and thinking so, I gave the pre-arranged signal.”
So, acceptance part is concerned, the evidence of PW1 in the cross-examination is that since there was earlier demand by AO for Rs.1,000/-, the DSP (PW4) asked PW1 to pay the tainted amount to him and accordingly, PW1 paid Rs.1,000/- to AO and when AO received the same he came to the conclusion that it was in consideration of earlier demand made by him.
9) So, when the entire evidence of PW1 is scrutinized, though in the chief examination he stated as if Rs.1,000/- was demanded by AO as bribe and also accepted the same, but in the cross-examination he deviated from his earlier version and stated as if the Rs.1,000/- demanded by AO towards “fertilizer licence fee” was opined by him as ‘bribe’ and gave complaint under that wrong notion and paid the amount as if towards ‘bribe’. Either wittingly or unwittingly PW1 scuttled the prosecution case in cross- examination by creating a doubt as to whether what was demanded by AO was towards ‘bribe’ or towards “fertilizer licence fee”.
10) In the above circumstances, in the light of Supreme Court’s observation, I feel Spl.P.P. should have either declared the witness as hostile and cross-examined him or in the light of Section 154 of Indian Evidence Act sought permission of the Court to cross-examine him or re-examine him and clarified the controversy shrouded around the amount as ‘bribe’ or ‘licence fee’. Since that was not done, the facts spoken in cross-examination remained uncontroverted and are liable to be taken into consideration. The net effect is that, the facts already narrated supra and the other following facts stated infra spoken in the cross-examination paved way for strengthening the defence plea.
11) Now, coming to the defence plea, during the relevant period apart from applying for pesticide licence PW1 applied also for “fertilizer licence” under Ex.D4 and licence fee for fertilizer is Rs.1,000/- and on the date of trap when PW1 paid AO Rs.1,000/-, he received the same under the opinion that the said amount was towards “fertilizer licence fee”. It is his emphatic case that he never demanded and accepted bribe from PW1 and PW1 gave false report due to delay in issuing licence of Sujanil Chemo Industries and as he never demanded bribe, he in his spontaneous explanation before trap party, stated that the amount of Rs.1,000/- paid by PW1 was for obtaining challan for Rs.1,000/-. To establish this defence plea AO relied upon none other than PW1 primarily and of course, PW2, PW3 and DW1.
PW1 in his cross-examination admitted thus:
“I know Sri Satya Sai Agricultural Centre, Dabagardens, who deals with Agricultural products. I went to the house of Accused Officer, and submitted an application to AO in respect of licence of agricultural products. I requested AO to arrange for principal letter through Sri Satya Sai Agriculture Centre. The AO asked me to get the licence fee of Rs.1,000/- paid through the office staff for the licence of agricultural products and for which I agreed.”
Thus, PW1 admitted that he applied for licence of agricultural products and AO told him that he has to pay licence fee of Rs.1,000/- for that purpose. Of course, AO did not confront Ex.D4—licence application to PW1 but got the same marked through DW1.
12) Then DW1 who worked as Junior Assistant in Agricultural Depot, Visakhapatam deposed that Ex.D4 is a bunch consisting of letters given by PW1, application for registration for fertilizer licence and blank challan signed by PW1. He further stated that AO gave those documents to him to keep in Fertilizer Licence File for the year 1995. The Agricultural Officer used to collect licence fee amount at times from the dealer and direct this witness to obtain challan. In the cross-examination he stated that Ex.D4 was given to him by AO on 23.08.1995 and they are not under the obligation to obtain challan and dealer has to obtain challan. He further stated the month ‘8’ and year ‘1995’ in the application form appears to have been corrected and he does not know who corrected them. He denied the suggestion that Ex.D4 documents were created to suit the defence.
a) So, when the evidence of DW1 and admission of PW1 are perused, they would indicate that during the relevant period PW1 applied for “fertilizer licence” and AO informed him that he should pay Rs.1,000/- towards licence fee. Since PW1 admits that he applied for fertilizer licence, the argument of prosecution that Ex.D1 was fabricated will not stand to reasoning. Though DW1 stated that it is not the duty of employees of Agricultural office to obtain challan for licence fee on behalf of dealer, PW3 in his re-examination stated that though it was not the obligation or duty of the staff of Agricultural office to pay the licence fee of an applicant, but in case of request by applicants they oblige and get the licence fee paid through one of their attenders, who happened to go to sub-treasury. Besides him PW1 also admitted in his cross-examination as follows:
“The AO asked me to get the licence fee of Rs.1,000/- paid through the office staff for the licence of agricultural products and for which I agreed.”
Therefore, the practice of staff of Agricultural office depositing the licence fee of the dealers in sub-treasury on behalf of dealers was in vogue.
13) Thus, the AO tried to establish his spontaneous explanation offered during Ex.P14—second mediator’s report and in Ex.P21—statement. It may be noted that in Ex.P14 and Ex.21, AO referred the amount received by him only as licence fee without specifically stating that it was towards “fertilizer licence fee”. However, as rightly argued by AO, in the context of the matter, it can be understood as towards “fertilizer licence fee” because the licence fee for pesticide was only Rs.300/- which was already paid under Ex.P4 and in fact licence for one company was already given to PW1 by the date of trap and this fact is known to both parties. So, on a conspectus of entire facts and evidence it must be said that AO could able to rebut the presumption under Section 20 of PC Act by probablizing his defence theory. On the other hand, the prosecution failed to prove beyond reasonable doubt that the amount of Rs.1,000/- (MO6) paid by PW1 and received by AO was only bribe.
a) The trial Court on proper appreciation of facts and evidence has rightly acquitted AO holding that the prosecution failed to bring home the charges levelled against him under Sections 7, 13(2) r/w 13(1)(d) of PC Act. I find no irregularity, illegality or perversity in its appreciation of evidence and findings.
14) In the result, I find no merits in the appeal and accordingly Crl.A.No.412 of 2006 is dismissed by confirming the judgment of the trial Court in C.C.No.62 of 2000.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 01.09.2014
Note: L.R Copy to be marked: Yes/ No
Scs/Murthy
[1] (2004) 3 SCC 767