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CHEQUE BOUNS CASE

ACB CASE = the accused officer has succeeded in proving the preponderance of probabilities in favour of his case by establishing the fact that the amount of Rs.500/- received from PW1 was towards additional security deposit, but not an illegal gratification. Even though the trial Court has given anxious considerations of various issues, but the reasons assigned based on the substantive evidence prompting it to impose conviction on the accused, in my considered view, do not at all sound to be reliable. Hence, this Court has no hesitation in holding that the findings arrived at by the trial Court are perverse and illegal, as such, the judgment under appeal is liable to be set aside. For the foregoing reasons, this appeal is allowed setting aside the conviction and sentence imposed on the appellant-accused officer by the learned Special Judge for SPE & ACB Cases, Vijayawada, vide his judgment dated 06.12.2003 delivered in CC. No.14 of 1995. The bail bonds of the appellant-accused officer shall stand cancelled.

Wrongfully Accused

Wrongfully Accused (Photo credit: Wikipedia)

HON’BLE SRI JUSTICE B.N. RAO NALLA

 

Crl.A. No. 1316 of 2003

03-03-2011

Gajula Pandu Ranga Rao

The State rep. By the District Inspector of Police, Anti-Corruption Bureau,
Eluru

Counsel for the Petitioner: Sri C. Praveen Kumar

Counsel for the Respondent: The Special Public Prosecutor

:JUDGMENT:

This Criminal Appeal is directed against the judgment dated 06.12.2003
delivered in C.C. No.14 of 1995 whereby the learned Special Judge for SPE & ACB
Cases, Vijayawada found the accused guilty of the offence punishable under
Sections 7 and 13(2) read with 13(1)(d)(ii) of the Prevention of Corruption Act,
1988 (for short “the Act”), and convicted and sentenced him to undergo rigorous
imprisonment for a period of one year and pay a fine of Rs.1,000/-, in default,
to suffer simple imprisonment for two months for the offence punishable under
Section 7 of the Act and also sentenced him to undergo rigorous imprisonment for
a period of one year and pay a fine of Rs.1,000/-, in default, to suffer simple
imprisonment for two months for the offence punishable under Section
13(1)(d)(ii) read with 13(2) of the Act. Both the substantive sentences are
directed to run concurrently.
The case of the prosecution in brief is that the appellant-accused was working
as Assistant Commercial Tax Officer-II in the office of DCTO, Tanuku, West
Godavari District. PW1-de facto complainant is a proprietor of Safura Radio
Sales and Service at Shop No.5, Netaji Complex, Tanuku. He was dealing in
electrical goods under Licence RC No. EIR/2/1189 dated 01.03.1984. On
04.08.1994, the appellant-accused officer assessed the tax on the basis of Form-
A2 returns submitted by PW1 for the assessment year 1993-94, and demanded him to
pay Rs.500/- as bribe to show an official favour of imposing 2% assessment tax
instead of the proposed 10% assessment tax. However, the complainant pleaded his
inability to pay the same stating that he is a petty businessman. On
17.08.1994, PW1 approached the accused officer and requested him to impose 2%
assessment tax, but the appellant-accused officer reiterated his earlier demand
and directed PW1 to pay the bribe amount on 24.08.1994. On 22.08.1994, at about
04.30 P.M., PW1 preferred Ex.P1 complaint before the Deputy Superintendent of
Police, ACB, Eluru against the appellant-accused officer, based on which, a case
in Crime No.8/ACB-RC (T) G/94 was registered under Ex.P19-FIR and PW8 laid a
trap and the accused officer was trapped for demand and acceptance of the bribe
amount of Rs.500/- from PW1 and the same was recovered from him in the presence
of PW2-Mediator. Phenolphthalein test was conducted and the same proved
positive. The serial numbers of the currency notes tallied with the numbers
mentioned in Ex.P6 – pre-trap proceedings. Post-trap proceedings were drafted
under Ex.P15. After obtaining sanction order dated 05.08.1995 under Ex.P18,
charge sheet was laid in the Court of the Special Judge for S.P.E. and A.C.B.
cases, Vijayawada for the offences punishable under Sections 7, 11 and 13(2)
read with 13(1) (d) of the Act.
To substantiate the case of the prosecution, it examined PWs. 1 to 9 and
got marked Exs.P1 to P21 and Mos.1 to 9. Exs.X1 and X2 were marked through PW1
while Exs.X3 and X4 were marked through PW3 as court documents.
After closure of the prosecution evidence, the trial Court found the
appellant-accused officer guilty of the charged offences and convicted and
sentenced him as stated supra.
The plea of the appellant- accused officer is that the amount of
Rs.500/- received by him from PW1 is towards additional security deposit in
pursuance of Ex.X3 – notice dated 10.08.1994 given to him.
Heard Sri C.Padmanabha Reddy, learned senior counsel for the appellant-accused
officer, Sri Ghani A. Musa, learned Standing Counsel & Special Public Prosecutor
for ACB Cases, appearing for the State and perused the material placed on
record.
The learned senior counsel for the appellant submitted that the tax liability of
PW1 was already assessed at 2% under Ex.P4 – Assessment file for the year 1993-
94, and his turnover for that year was found to have exceeded by Rs.25,000/-
over the previous assessment, as such, he was asked to deposit Rs.500/- towards
additional security deposit under Ex.X3 – notice. On the date of trap i.e.
24.08.1994, PW1 went to the office of the accused officer and paid him Rs.500/-
whereupon the accused officer called PW3, his Attender to summon PW4 – Assistant
to prepare a receipt thereof; meanwhile, the trap proceedings took place.
Therefore, he mainly contended that in the above circumstances, no promise for
doing any official favour to PW1 was pending by then with the accused since the
tax was already assessed at 2% in view of Ex.X3 – notice, as such, the question
of threat alleged to have been raised by the appellant that he would assess the
tax of PW1 at 10% instead of 2% if he fails to pay him illegal gratification of
Rs.500/-, does not arise. He further submitted that it is settled preposition
of law that the accused is only expected to offer probable explanation in order
to rebut the presumption under Section 20 of the Act, and he cannot be asked to
prove his case beyond reasonable doubt. In the above circumstances, he
emphatically contended that the explanation given by the accused that the amount
of Rs.500/- was received by him towards additional security deposit and not as
illegal gratification and the same probablizes the defence version. Therefore,
he prays to set aside the judgment under appeal.
On the contrary, the learned Special Public Prosecutor has contended that in the
year 1984, for annual turnover of Rs.5,000/-, PW1 paid Rs.400/- towards security
deposit. After a decade, for annual turnover of about Rs.1,37,000/- and odd, an
amount of more than Rs.500/- should have been demanded to be deposited towards
additional security deposit. Therefore, the plea raised by the appellant-accused
officer in this regard cannot be sustained. He further contended that the
appellant-accused officer did not state in Ex.P15 – post trap panchanama that
the tainted amount of Rs.500/- was received towards additional security deposit.
Recording of Ex.P15-post trap panchanama gave the earliest opportunity to the
accused officer to explain his stand, for what purpose the tainted amount was
received by him from PW1. Hence, the trial Court rightly recorded its
findings, as such, the judgment under appeal need not be interfered with.
By way of reply, the learned senior counsel for the appellant submits that PW8-
Investigating Officer has admitted in his cross-examination that as per second
sheet of Ex.P4, the total turnover of PW1 was Rs.1,37,899.19 for the year 1993-
94 and the net turnover for that year was shown at Rs.14,856.44. He further
admitted that if the tax is calculated at 2% on the net turnover of Rs.14,856/-
it comes to Rs.297.12, and on adding surcharge of 10%, it comes to Rs.326.83.
The assessment was for the year 1993-94. It is in this context, the learned
senior counsel for the appellant-accused submits that as the turnover for the
assessment year 1993-94 was estimated and the same exceeded by Rs.25,000/-, it
was proposed, and accordingly, advance notice – Ex.X3 in Form-14 (under Section
12) was issued to PW1 demanding payment of Rs.500/- towards additional security
deposit. Moreover, the file containing Ex.X3 and other documents were seized by
the time of the trap, as such, he was handicapped in producing either Ex.X3 or
any other documents at the time of drafting second mediator’s report. Whatever
is stated by the accused officer before PW8, who is a Police Officer, is
inadmissible in evidence and is hit by Section 25 of the Indian Evidence Act.
Therefore, Ex.P15 which is in the nature of confession, has to be eschewed. In
fact, he has submitted his explanation when he was examined under Section 313
Cr.P.C., which is the relevant stage and such explanation is sufficient to be
considered. He further contended that the explanation submitted by the accused
was supported by the evidence of PW3 – Attender and PW4 – Assistant, and the
same is to the effect that when PW1 visited the accused officer in his office
and paid the amount of Rs.500/-, PW4 – Assistant was summoned by the accused
through PW3 – Attender to prepare a receipt thereof.
The learned senior counsel, in support of his strenuous contentions, has relied
on a decision reported in C.M. Girish Babu Vs. CBI, Cochin, High Court of
Kerala1, wherein it is held to the following effect.
“In Suraj Mal v. State (Delhi Admn.) ((1979) 4 SCC 725), this Court took the
view that (at SCC p.727, para 2) mere recovery of tainted money divorced from
the circumstances under which it is paid is not sufficient to convict the
accused when the substantive evidence in the case is not reliable. The mere
recovery by itself cannot prove the charge of the prosecution against the
accused, in the absence of any evidence to prove payment of bribe or to show
that the accused voluntarily accepted the money knowing it to be bribe.
The learned counsel for CBI submitted that the onus of proof was upon the
appellant to explain as to how he came into possession of the amount recovered
from him during the trap. The argument of the learned counsel is obviously
based on Section 20 of the Prevention of Corruption Act, 1988 which reads as
under:
20. Presumption where public servant accepts gratification other than legal
remuneration:- (1) where, in any trial of an offence punishable under Section 7
or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13, it
is proved that an accused person has accepted or obtained or has agreed to
accept or attempted to obtain for himself, or for any other person, any
gratification (other than legal remuneration) or any valuable thing from any
person, it shall be presumed, unless the contrary is proved, that he accepted or
obtained or agreed to accept or attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive or reward such as is mentioned
in Section 7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate.
(2)Where in any trial of an offence punishable under Section 12 or
under clause (b) of Section 14, it is proved that any gratification (other than
legal remuneration) or any valuable thing has been given or offered to be given
or attempted to be given by an accused person, it shall be presumed, unless
contrary is proved that he gave or offered to give or attempted to give that
gratification or that valuable thing, as the case may be, as a motive or reward,
such as, is mentioned in Section 7, or as the case may be, without consideration
or for a consideration which he knows to be inadequate.
(3)Notwithstanding anything contained in sub-section (1) and (2), the
Court may decline to draw the presumption referred to in either of the said sub-
sections, if the gratification or thing aforesaid is, in its opinion, so trivial
that no inference of corruption may fairly be drawn.
A three-Judge Bench in M.Narsinga Rao v. State of A.P. ((2001)1 SCC 691 while
dealing with the contention that it is not enough that some currency notes were
handed over to the public servant to make it acceptance of gratification and the
prosecution has a further duty to prove that what was paid amounted to
gratification, observed: (SCC p. 700, para 24)
“24…….. we think it is not necessary to deal with the matter in detail
because in a recent decision rendered by us the said aspect has been dealt with
at length. (Vide Madhukar Bhaskar Rao Joshi vs. State of Maharashtra (2000) 8
SCC 571). The following statement made by us in the said decision would be the
answer to the aforesaid contention raised by the learned counsel: (Madhukar case
(SCC p. 577, para 12)
12. The premise to be established on the facts for drawing the presumption is
that there was payment or acceptance of gratification. Once the said premise is
established the inference to be drawn is that the said gratification was
accepted “as motive or reward” for doing or forbearing to do any official act.
So the word “gratification” need not be stretched to mean reward because reward
is the outcome of the presumption which the court has to draw on the factual
premise that there was payment of gratification. This will again be fortified
by looking at the collocation of two expressions adjacent to each other like
“gratification or any valuable thing”. If acceptance of any valuable thing can
help to draw the presumption that it was accepted as motive or reward for doing
or forbearing to do an official act, the word “gratification” must be treated in
the context to mean any payment for giving satisfaction to the public servant
who received it.”
It is well settled that the presumption to be drawn under Section 20 is not an
inviolable one. The accused charged with the offence could rebut it either
through the cross-examination of the witnesses cited against him or by adducing
reliable evidence. If the accused fails to disprove the presumption the same
would stick and then it can be held by the Court that the prosecution has proved
that the accused received the amount towards gratification.
It is equally well settled that the burden of proof placed upon the accused
person against whom the presumption is made under Section 20 of the Act is not
akin to that of burden placed on the prosecution to prove the case beyond a
reasonable doubt.
“4. ….. It is well established that where the burden of an issue lies upon the
accused, he is not required to discharge that burden by leading evidence to
prove his case beyond a reasonable doubt. That is, of course, the test
prescribed in deciding whether the prosecution has discharged its onus to prove
the guilt of the accused; but the same test cannot be applied to an accused
person who seeks to discharge the burden placed upon him under Section 4(1) of
the Prevention of Corruption Act. It is sufficient if the accused person
succeeds in proving a preponderance of probability in favour of his case. It is
not necessary for the accused person to prove his case beyond a reasonable doubt
or in default to incur a verdict of guilty. The onus of proof lying upon the
accused person is to prove his case by a preponderance of probability. As soon
as he succeeds in doing so, the burden is shifted to the prosecution which still
has to discharge its original onus that never shifts i.e. that of establishing
on the whole case the guilt of the accused beyond a reasonable doubt”.
(emphasis supplied)
As could be seen from the evidence of PW1, it is an undisputed fact that the
appellant-accused officer received Rs.500/- from PW1, however it is to be
examined whether he received it as an illegal gratification other than legal
remuneration for doing an official favour to PW1 by assessing sales tax at 2%
instead of 10% or towards additional security deposit in pursuance of the notice
dated 10.08.1994 issued to PW1. PW1 denies having received Ex.X3 – notice
whereunder he was asked to pay an additional security deposit of Rs.500/-. The
appellant, after receiving Rs.500/- from PW1 sent PW3 – Attender to inform PW4 –
Assistant concerned to prepare a receipt therefor. The evidence of PW3 that the
appellant had called him to fetch PW4 to prepare a receipt for the amount of
Rs.500/- having been received by the appellant from PW1 towards additional
security deposit is fortified with that of PW4 – Assistant, who also admitted in
his evidence that the accused called him through PW3 for preparing a receipt for
an amount of Rs.500/-, which squarely corroborates the version of the appellant
as well.
Insofar as Ex.X3 – notice demanding PW1 to pay Rs.500/- towards additional
security deposit is concerned, PW3 – Attender, deposed in his cross-examination
that he took the notice to PW1 and read the contents of it to him, but PW1
refused to receive it and said that he would talk to the accused afterwards.
Then, PW3 made an endorsement to that effect on Ex.X3 notice. The prosecution
declared PWs.3 and 4 hostile. Even if the witnesses turned hostile, their
evidence in toto cannot be eschewed from consideration. Any part of the
statement of the witnesses, who turned hostile to the case of the prosecution,
can be accepted, is the settled law. There may be circumstances, which are
innate in the case and emerge out of the same that may ultimately tilt the
scales. In fact, no suggestion was made to PW3 in cross-examination with regard
to the denial of serving notice to PW1. That apart, PW8 – Investigating Officer
nowhere stated in his evidence that Ex.X3 – advance notice demanding payment of
Rs.500/- towards security deposit, was not genuine nor did he depose anything
with regard to non-issuance of notice to PW1 by PW3. Therefore, Ex.X3 – Notice
cannot be said to be a fabricated document, and the trial Court was wrong in
treating Ex.X3 as without any basis. In addition to that the learned Special
Public Prosecutor has not controverted the factum of issuance of notice to PW1
by PW3 and the endorsement made by him thereon under Ex.A4 after PW1’s refusal
to take the notice. Hence, the evidence of PW1 as to the receipt of the amount
of Rs.500/- by the accused towards the alleged illegal gratification other than
legal remuneration, is uncorroborated, unjustifiable, and is therefore,
baseless. Moreover, the explanation submitted by the appellant-accused is
corroborated by the evidence of PWs.3 and 4, Ex.P4 – Assessment file, Ex.X3 –
Notice and Ex.X4 – Endorsement on the notice.
After careful analysis of the evidence on record and in the light of the well
established principles laid down in the above referred judgment, this Court
safely concludes that the accused officer has succeeded in proving the
preponderance of probabilities in favour of his case by establishing the fact
that the amount of Rs.500/- received from PW1 was towards additional security
deposit, but not an illegal gratification. Even though the trial Court has
given anxious considerations of various issues, but the reasons assigned based
on the substantive evidence prompting it to impose conviction on the accused, in
my considered view, do not at all sound to be reliable.
Hence, this Court has no hesitation in holding that the findings arrived at by
the trial Court are perverse and illegal, as such, the judgment under appeal is
liable to be set aside.
For the foregoing reasons, this appeal is allowed setting aside the conviction
and sentence imposed on the appellant-accused officer by the learned Special
Judge for SPE & ACB Cases, Vijayawada, vide his judgment dated 06.12.2003
delivered in CC. No.14 of 1995. The bail bonds of the appellant-accused officer
shall stand cancelled.

?1(2009)2 SCC (Crl.)

 

 

 

 

 



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