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PETITIONER: B. HANUMANTHA RAO

       Vs.

RESPONDENT: STATE OF A.P.

DATE OF JUDGMENT26/03/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) AGRAWAL, S.C. (J)

CITATION:  1992 AIR 1201            1992 SCR  (2) 358  1993 SCC  Supl.  (1) 323 JT 1992 (2)   433  1992 SCALE  (1)736

ACT:      Prevention of Corruption Act, 1947 :      Section   4   and   5-Charge   of   receiving   illegal gratification-Trap  case-Huge amount of money found  in  the possession  of  accused-Explaining  the  circumstances   and proving   innocence-Burden  of  proof-Whether   shifted   on accused.

HEADNOTE:      The  petitioner, an Excise Sub-Inspector,  was  charged with  the  offence of accepting an amount of Rs.  50,000  as illegal  gratification  from  an  arrack  contractor.    The defence  of the petitioner was that the  Contractor  offered him the said amount towards arrears of rental, stating  that he  could not deposit the amount in Bank since  the  banking hours were over on that day.  Despite his refusal to  accept the same and requesting that it may be remitted in Bank  the following  day, the Contractor placed the  cover  containing the  said  amount  on the table of the  petitioner,  it  was claimed.   The trial court disbelieved the  defence  version and  convicted the petitioner and sentenced him  to  undergo two  years rigorous imprisonment and a fine of Rs. 2000  and in default thereof, to undergo 2 months simple imprisonment.      On appeal, the High Court confirmed the conviction  and sentence awarded by the trial court.  Aggrieved against  the said order, the petitioner has preferred the present special leave  petition,  raising  the same grounds  as  were  urged before the Courts below.      Dismissing the special leave petition, this Court,      Held : 1.1. It remains undisputed that an amount of Rs. 50,000  was  recovered from the possession of  the  accused, lying on a tea-poy in a room of office-cum-residence of  the accused.   In view of the fact that on washing the hands  of the  accused  by a solution of sodium carbonate,  the  water turned pink, it leaves no manner of doubt that the amount of Rs. 50,000                                                        359 was  touched and handled by the accused.  Under  the  Excise Rules,  the accused-petitioner had no right or authority  to accept  any arrears of rentals of an excise contract.   Even if  the bank was closed as suggested by the  accused,  there

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was  no question of accepting such amount by the accused  as the  rentals could have been deposited by the Contractor  in the  bank when it opened.  Once the amount of Rs. 50,000  is found in the possession of the accused, the burden shifts on him  to explain the circumstances to prove his innocence  as contemplated under Section 4 of the Prevention of Corruption Act. [362 C-E]      1.2.   Even  if  the  statements  of  the   prosecution witnesses  who  were  declared  hostile  are  excluded  from consideration, it would not make any difference in believing the substratum of the prosecution story. [362 B,C]      2.  The circumstance that the Contractor  was  inimical and  had an axe to grind inasmuch as he was instrumental  in getting  the  petitioner transferred and such  transfer  was subsequently stayed by the Administrative Tribunal, has been considered  be the High Court and it rightly took  the  view that  such circumstance cannot improbablise the  demand  and acceptance  of the illegal gratification by the  patitioner. The  conviction is based on concurrent findings of fact  and appreciation  of evidence.  Both the trial court as well  as the  High Court have considered the facts and  circumstances of  the  case  in detail and have  placed  reliance  on  the prosecution   witnesses   and   there  is   no   ground   or justification to take a different view. [362 F-H; 363A]      3.  There is no ground or justification to  reduce  the sentence  awarded  to  the  petitioner,  in  the  facts  and circumstances of the case.

JUDGMENT:      CRIMINAL   APPELLATE  JURISDICTION  :   Special   Leave Petition (Criminal) No. 2369 of 1991.      From  the  Judgment and Order dated 19.11.1990  of  the A.P. High Court in Crl. Appeal No. 1047/88.      P.P.  Rao,  B.  Rajeshwar Rao and Vimal  Dave  for  the Petitioner.      K. Madhava Reddy and G. Prabhakas for the Respondent.      The Judgment of the Court was delivered by                                                        360      KASLIWAL, J. This special leave petition (criminal)  is directed   against  the  judgment  of  the  High  Court   of judicature Andhra Pradesh at Hyderabad dated 19.11.1990. The petitioner  was  convicted  for  offences  punishable  under Section  161 I.P.C. and Section 5 (1) (d)  punishable  under Section  5  (2)  of the prevention  of  Corruption  Act  and sentenced to rigorous imprisonment for a period of two years and a fine of Rs. 2,000 and in default of payment of fine to suffer two months simple imprisonment under each count  with a direction that both the sentences shall run  concurrently, by  an  order of the Principal Special Judge for SPE  &  ACB cases dated 24.11.1988.  The High Court dismissed the appeal filed  by  the petitioner and confirmed the  conviction  and sentence awarded by the trial court.      We have heard Mr. P.P. Rao, Learned Senior Advocate  on behalf  of the Petitioner and Mr. K. Madhava Reddy,  Learned Senior Advocate on behalf of the State of Andhra Pradesh.      This is a trap case in which the petitioner was alleged to  have  accepted  an  amount  of  Rs.  50,000  as  illegal gratification on 5.7.1986 while working as Sub-Inspector  of Excise at his office-cum-residence at Godavarikhani. Briefly stated  the prosecution story is that PW.1 A.   Baswa  Reddy took  arrack  contract  in partnership  of  his  brother  A. Rajender  Reddy (PW.2) and one Arjun for the sale of  arrack for  Ramagundam  group in Karimnagar district for  one  year

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from  1.10.1985 on payment of Rs. 14 lakhs rental  permensem payable  by  20th  of each month.  The  petitioner  was  the Excise Sub-Inspector Ramagundam.  On 3.6.1986 the petitioner called  PW.1 through a constable PW.6 A Narender.  PW.1  met the  accused-petitioner  on the same day at 9.00  a.m.   The accused  demanded  bribe of Rs. 50.000 and  threatened  that otherwise  he would seize the arrack depot at  Godavarikhani and its machinery for supplying arrack in polythene  sachets without  permission.   When PW.1 requested  the  accused  to reduce  the bride the accused told him that he used to  take ’mamool’   of  Rs.  5,000  per  month  from   the   previous contractor.  On. 4.7.1986 the accused again called  PW.1  to his  office-cum-residence and asked him to pay the bride  of Rs. 50,000 by the next evening otherwise, threatened him  as done  earlier.  PW.1 on the same day submitted  a  complaint Exhibit P.1 to Shri P. Bal Reddy, the then DSP, ACB, Wrangal Range. The DSP with the assistance of two mediators  planned a trap.  On 5.7.1986 at about 2.00 p.m.                                                        361 PW.1  met the accused at his office-cum-residence and  on  a demand made by the accused he gave an amount of Rs.  50,000. Immediately  thereafter  PW.1 gave a signal to  the  raiding party and thereupon DSP, ACB (PW.9) and other members of the raiding  party rushed into the office-cum-residence  of  the accused.   The  hands of the accused were got  washed  by  a solution  of sodium carbonate and the solution turned  pink. An amount of Rs. 50,000 was recovered from the possession of the  accused.   The accused was then  charged  for  offences under  Section  161 I.P.C. and Section 5 (1) (d)  read  with Section  5  (2) of the prevention of  Corruption  Act.   The accused  denied the charges.  The prosecution  examined  (1) witnesses  in  support  of its case.   The  accused  in  his explanation  under  section  313 of  the  Code  of  Criminal Procedure,  1973 gave a long statement.  But  in  substance, his defence was that on 5.7.1986 at about 2.00 p.m. while he was  at his office-cum-residence PW. 7 an  Excise  constable told  him that PW.1 had come to meet him.  The accused  then called  in PW.1.  Then PW.1 gave a slip Exhibit D.7  showing the  remittances made by him towards arrears of rental  till 4.6.1986.   The  same was in the handwriting of  PW.2.   The accused further stated that PW.1 informed him that he  could not deposit the amount towards arrears of rental on that day as banking hours were over, as it happened to be a  Saturday and  then offered to give him a cash of Rs.  50,000  towards payment  of  arrears.   So saying, PW.1  took  out  a  cover containing currency notes and pushed it on the table towards the  accused asking him to remit the same  towards  rentals. Then  the accused told him that he had no safe to  keep  the amount  and apart from that he was going to  Karimnagar  and therefore  asked PW.1 to remit the amount in the bank.  PW.1 then told that his licence was cancelled previously for  non payment  of rentals and therefore it would not be proper  to allow the arrears to be accumulated, but inspite of that the accused pushed back the packet towards PW.1 and asked him to remit  the  rentals on the next working day.  By  that  time PW.1  went out leaving the packet of currency notes  on  the table  on the pretext of bringing some papers from  outside. PW.1 went near the jeep and talked with the driver and again came back with some papers.  Immediately thereafter the DSP, ACB  and  others  entered the house  and  subjected  him  to phenolphthalein  test.  The accused told the DSP  that  PW.1 had offered him the amount of Rs. 50,000 towards payment  of arrears of rentals.  He admitted that when his fingers  were washed  in  sodium carbonate solution it  turned  into  pink colour on account of the reason that he

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                                                      362 had shaken hands with PW.1.      The  Learned  Special Judge accepted the  case  of  the prosecution and disbelieved the version of the accused.  The High Court affirmed the decision of the trial Judge.      We have heard Shri P.P. Rao, Learned Senior Counsel for the petitioner at length.  Shri Rao made strenuous effort to convince  us  to believe the version given by  the  accused- petitioner, but in vain.  Even if the statements of PW.6 and PW.7,  Excise  constables  who  were  declared  hostile  are excluded   from  consideration,  it  would  not   make   any difference  in believing the substratum of  the  prosecution story.   It remains undisputed that an amount of Rs.  50,000 was recovered from the possession of the accused, lying on a tea-poy  in a room of office-cum-residence of  the  accused. In view of the fact that on washing the hands of the accused by a solution of sodium carbonate, the water turned pink, it leaves no manner of doubt that the amount of Rs. 50,000  was touched and handled by the accused.  Under the Excise Rules, the  accused-petitioner had no right or authority to  accept any arrears of rentals of an excise contract.  Even if,  the bank  was closed as suggested by the accused, there  was  no question  of  accepting such amount by the  accused  as  the rentals  could have been deposited by PW.1 in the bank  when it  opened.  Once the amount of Rs. 50,000 is found  in  the possession  of  the  accused, the burden shifts  on  him  to explain   the  circumstances  to  prove  his  innocence   as contemplated under Section 4 of the Prevention of Corruption Act.   A  great stress was laid by Shri Rao  that  PW.1  was inimical  and  had  an  axe to  grind  with  the  petitioner inasmuch  as he was instrumental in getting  the  petitioner transferred from Godavarikhani by order dated 16.5.1986  and such   transfer   was  subsequently  got   stayed   by   the Administrative  Tribunal  by  order  dated  20.5.1986  in  a petition  filed by the petitioner.  The  above  circumstance has been considered by the High Court and we agree with  the High Court that when the fact that the accused demanded  and accepted illegal gratification of Rs. 50,000 on 5.7.1986  is acceptable  then such circumstance cannot  improbablise  the demand   and  acceptance.   The  conviction  is   based   on concurrent  findings of fact and appreciation  of  evidence. Both  the  trial  court  as well  as  the  High  Court  have considered the facts and circumstances of the case in detail and have placed reliance on the prosecution witnesses and we do not find any ground or justification to take a different                                                        363 view.   Shri  Rao also submitted that even if  this  Hon’ble Court  was  not inclined to take a different view  from  the lower  courts, a lenient view may be taken in  awarding  the sentence.  We find no ground or justification to reduce  the sentence  awarded  to  the  petitioner,  in  the  facts  and circumstances of the case.      In  the result, we find no force in this  petition  and the same is dismissed. G.N.                                    Petition dismissed.                                                        364