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CASE NO.: Appeal (crl.)  1309 of 2007

PETITIONER: K. Subba Reddy

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  1309 OF 2007 (Arising out of SLP (Crl.) No. 6306 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment rendered by a  learned Single judge of the Andhra Pradesh High Court  upholding the conviction of the appellant punishable under  Section 7 of the Prevention of Corruption Act, 1988 (in short  the ’Act’). The appellant had faced trial along with another  accused and for the sake of convenience he is described as A-2  hereinafter. Both the accused persons were convicted for the  offence punishable under Section 7 of the Act and sentenced  to undergo rigorous imprisonment of one year each and to pay  a fine of Rs.1,000/- with default stipulation. They were,  however, acquitted of the other charges.  

3.      Sans unnecessary details, the prosecution version as  unfolded during trial is as follows:

A-1 worked as an Excise Sub Inspector, at Mydukur,  Cuddapah District and A-2 worked as a Home Guard.  PW.1 is  the de facto complainant. His father by name Subba Reddy  was running a wine shop at Mydukur known as "Eswara  Wines" since 1987. PW.1 obtained a license to run another  wine shop known as "New Eswara Wines" and was running  the said wine shop. He was assisting his father in the said  business. On 7.2.1988 the enforcement wing of the Excise  Department raided the shop of his father in his presence. The  raiding party found some stock without license. A case was  registered against PW.1 and his father and it ended in  conviction in April, 1994. They preferred an appeal and it was  pending at the relevant point of time. On 27.4.1994 the Excise  Superintendent issued a show cause notice to PW-1 for  cancellation of license issued in his favour. On 3.5.1994 A.1  sealed his shop pursuant to the directions of the Excise  Superintendent. On 4.5.1994 PW-1 sent Ex.P4 reply, which  was received by the Excise Superintendent under Ex.P5  acknowledgement. Subsequently, PW.1 filed W.P. No. 9460 of  1994 before the High Court seeking a direction for the release  of the stock seized by A.1 from his shop known as "New  Eswara Wines". The High Court passed an order on 11.5.1994  in W.P.M.P. No. 11535 of 1994, in favour of PW. 1, directing  the excise officials to release the seized stocks. On 15.5.1994

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PW.1 approached the Superintendent of Excise along with the  order of the High Court for the release of the stock. On the  same day, the Excise Superintendent directed A.1 to open the  seal of the shop and handover the stock to PW.1. PW.1  approached A-1 to remove the seals and to open the doors of  the shop. At that time A-1 demanded Rs. 5,000/- towards  bribe for opening the seals and when PW.1 expressed his  inability, A.1 reduced the amount to Rs.3,000/-. Though A.1  opened the shop by removing seals, he refused to give the  stock register unless and until the bribe of Rs.3,000/- is paid.  PW.1, who had no inclination to pay the bribe to A.1, preferred  Ex.P-10 complaint to Anti Corruption Bureau (for short ’ACB’)  officials on 16.5.1994. On the same day, PW.7 and members of  the trap party reached the office of A-1 at about 5.00 p.m.  Immediately, PWs. 1 and 2 went to A.1. When A-1 demanded  the bribe, PW.1 told him that the money was ready, but A-1   told him to come on the next day i.e. 17.5.1994 and further  told that  in case he goes for checking of shops, the amount  may be paid to A.2, i.e. the present appellant.  On the next day  i.e. 17.4.1994 at about 11.30 a.m. PW-1 met PW-2 enquiring  about A-l and A-2 came and asked PW-1 to give the bribe of  Rs. 3,000/- as demanded by A-l.  Accordingly, PW-1 paid the  amount to A.2. A.2 counted the notes, kept the amount  in his  left pocket. Subsequently, the amount was recovered from A-2  and the phenolphthalein test conducted on the fingers of both  the hands and the left pant pocket of A-2 proved positive. PW- 8 after completion of investigation laid the charge sheet.  Charges were framed. Appellant denied the charges and  claimed for trial.

4.      The prosecution in order to establish the guilt of the  accused persons examined 8 witnesses and marked 23   documents and produced 9 material objects. As noted above,  the trial Court considering the oral and documentary evidence  recorded  the conviction. Before the trial Court the prosecution  referred to the evidence of PW-1 who claimed that as per the  instructions of A-1 money was handed over to A-2. A-1 denied  the demand and acceptance of the bribe and pleaded that PW- 1  paid the amount to A-2 to hand over the same to one person  namely, Subbarayudu for the purpose of remitting the same to  the treasury. The trial Court held that the tainted money was  delivered to A-2 and it was recovered from A-2. Accordingly,  both A-1 and A-2 were guilty. The High Court by the impugned  order upheld the conviction of the two accused persons.   5.      In support of the appeal, learned counsel for the  appellant submitted that no definite role was ascribed to the  present appellant and no material has been adduced to show  that A-2 had any knowledge that the money was being paid to  A-1 as bribe. There is not even any suggestion, much less, no  evidence to show that A-2 had any knowledge that he was  being used as a conduit for the purpose of payment of bribe to  A-1. It is, therefore, submitted that the conviction is not  maintainable.  

6.      Learned counsel for the State on the other hand  submitted that the connected SLP (Crl.) No.2113/2006 filed by  A-1 has been dismissed. Though there is no direct evidence  about the knowledge of A-2-the present appellant about the  money being bribe to A-1, it can reasonably be inferred from  the background facts that he was actually a conduit and the  money was paid to him and he was asked to hand over the  same to A-1. On the contrary, the totally unaccepted plea that  money was to be paid to somebody else has been raised which  has been rightly rejected by the trial Court and the High

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Court. The evidence of PW-1 is of vital importance.   

7.      There is no material to show about the knowledge of A-2  regarding the money being bribe.  He had offered the  explanation  that the money was to be paid to Subbarayudu.  In this connection, reference is made to the evidence of PW-1.  He has only stated that A-1 asked him to hand over the money  to A-2 if he had gone out for checking of shops.    

8.      Appellant (A-2) at the relevant point of time was working  as a Home Guard. He was assigned different duties at different  places. It is accepted in the cross examination by PW-1 that  there is no Sub-treasury at Mydukur and if anybody wants to  remit money to the Government, one has to go out to different  places.  It is also accepted that there is a practice of giving  money to some boys working in the shops or some places to  remit the money to the Government treasury at different  places indicated by the shop owners.  It was also accepted that  Subbarayudu was a person who used to remit the amount to  Government on behalf of shop owners.  It is the accepted  position that the present appellant had no role to play in the  return of the stock register. It is the prosecution case that A-1  had wanted the bribe to be paid for the return of the stock  register.  

9.      Above being the position, the material is not sufficient to  hold the appellant guilty. His conviction is accordingly set  aside. He was released on bail pursuant to the order of this  Court dated 27.2.2006. His bail bonds shall stand discharged.  

10.     The appeal is allowed.