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CASE NO.: Appeal (crl.)  865 of 2003

PETITIONER: State of A.P.

RESPONDENT: S. Janardhana Rao

DATE OF JUDGMENT: 17/11/2004

BENCH: B.N.AGRAWAL  & A.K.MATHUR

JUDGMENT: J U D G M E N T

WITH  

CRIMINAL MISCELLANEOUS PETITION NO. 2569 OF 2004

B.N.AGRAWAL, J.  

       Initially four persons, namely, S.Janardhana Rao (A-1), Mohammed Omar  Bin Moin (A-2),  S. Indira (A-3) and S.Prasanth (A-4) were made accused, but as  A-2 turned to be an approver, pardon was granted to him and he was examined  as PW-21.   Thus, trial proceeded against the remaining three accused persons  and the learned Special Judge upon the conclusion of trial acquitted A-3 and A-4  whereas convicted A-1 under Sections 7 and 13(1)(d) read with Section 13(2) of  the Prevention of Corruption Act, 1988 and  sentenced him to undergo rigorous  imprisonment for a period of three years and to pay a fine of Rs. 3,000/-; in  default to suffer simple imprisonment for a period of two months on each count.   The sentences, however, were ordered to run concurrently.  Against the order of  conviction, A-1 preferred an appeal before the High Court of Andhra Pradesh  whereas the State preferred an appeal against the order of acquittal of A-3 and  A-4 and the High Court dismissed the State appeal whereas allowed the appeal  filed by A-1 and acquitted him of all the charges.   The State of Andhra Pradesh  filed two petitions for grant of Special Leave to appeal; one against the order  whereby the High Court dismissed appeal filed by the State against the order of  acquittal of A-3 and A-4 by the trial court, which SLP was dismissed; and the  second against the order whereby the High Court acquitted A-1 of all the charges  in which leave was granted.  

       The prosecution case, in short, was that A-1 was the member of Andhra  Pradesh Higher Judicial Service and posted as IIIrd Metropolitan Sessions  Judge, Hyderabad, at the relevant time and residing in Flat No. 402 of  Garudagagan Apartments, Padmaraonagar, Secunderabad,  A-3 was his wife,  who was working as a teacher in  Government New High School, Kotteru,  Hanumakonda, and  A-4 was their 19 years’ old son, who was deaf and dumb by  birth.  A-2 was a police constable attached to the court of A-1.  Before A-1,  Sessions Case No. 186 of 1989 was pending trial in which besides others, Sant  Esher Singh (PW-1) and Rajinder Singh (PW-2) were accused.  As the trial of the  said case was at its final stage, A-1 is alleged to have sent message through  PW-21 to PWs 1 and 2 demanding a sum of Rs. 6 lacs as illegal gratification for  recording their acquittal in the said case, but ultimately the amount was reduced  by A-1 to Rs. 3 lacs.  As PWs 1 and 2 were not agreeable to pay even the  reduced amount, PW 1 approached the officials of Anti Corruption Branch  (hereinafter referred to as ’ACB’) for conducting a trap, but as it was a case in  which a judicial officer was involved, they expressed their inability to do anything  without any order from the High Court.  Thereafter, on 3rd and 4th September,  1996, PW-1 met the learned Chief Justice of Andhra Pradesh High Court and  permission was granted by the High Court to conduct trap and register case.   

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Thereupon, PW-1 went to the office of ACB with Rs. 3 lacs which was kept in a  plastic cover and gave it to S.Sreeramulu (PW-3) whose services were secured  by R. Suryanarayana,  Deputy Superintendent of Police, ACB, (PW-23).  PW-23  noted down the numbers of all the currency notes which were in the   denomination of Rs. 500/- in six bundles, on a separate sheet of paper.   One of  the officials of ACB treated the currency notes with the layer of phenolphthalein  powder.  Thereupon, officials of ACB organized a trap and they went to the court  of A-1 on 4th September, 1996 which was a date fixed in the case where A-1  pronounced in open court the code word that "all the matters will be adjourned to  6th September, 1996" which could be taken as confirmation that PW-21  approached PWs 1 and 2 on his behalf and the work would be done.   Then,  on  the same day, PWs 1 and 21 along with the trap party went to the house of A-1  at Hanumakonda in which his wife and son were residing.  While members of the  trap party were waiting at some distance from the house, PWs 1 and 21 went to  the said house and as it was bolted from inside, PW-21 pressed the call bell  whereupon wife of A-1 opened the door and both PWs 1 and 21 went inside the  house where son of A-1 was also present.  When PW-21 tried to hand over the  plastic cover containing sum of Rs. 3 lacs, wife of A-1 asked him to count the  money in her presence and after the same was counted, as directed by her,           PW-21 kept the plastic cover containing the aforesaid amount  on the teapoy  which was shifted by her son to the cup-board in the same room.  Thereafter,  PWs 1 and 21 came out from the house and gave pre-arranged signal to the  members of the trap party consisting of G.Bal Reddy (PW-22), PW-23 and the  mediator (PW.3) who entered the house, met wife of A-1 and asked her about  the receipt of the sum of Rs. 3 lacs,  which she denied.  Thereafter, son of A-1,  who was deaf and dumb, led the members of the trap party to the bathroom  attached to the master bedroom by making gestures and signs; and removed the  lid of the flush  tank where plastic bag containing sum of Rs. 3 lacs was found in  water, photograph of which was taken, and after the same was taken out  therefrom, the numbers of the currency notes, contained in the plastic bag,  were  compared and the same tallied with the numbers already noted down by PW-23  on a separate sheet of paper.  After seizure of the aforesaid sum of Rs. 3 lacs,  PW-21 informed A-1 about the payment of the said sum of Rs. 3 lacs to his wife  and A-1 fixed up time to meet PW-1.  According to pre-arranged programme,  PWs 1 and 21 went to the flat of A-1 in the Apartment at Secunderabad in the  night between 4th and 5th September, 1996 at 1.00 O’clock. After some time, PW- 21 came out and remained outside the apartment.  In the meantime,  according  to pre-arranged plan, the officials of ACB came there, entered the flat of A-1 and  found that A-1 was entertaining PW-1.  

       Stating  the aforesaid facts, a first information report was lodged for  prosecution of A-1, his wife (A-3), his son (A-4) besides PW-21 and investigation  proceeded, on completion whereof chargesheet was submitted against all the  aforesaid four accused persons after obtaining the required sanction.  On receipt  of the chargesheet, cognizance was taken.   Defence of the accused persons was that they were innocent, no  occurrence as alleged had taken place and they were falsely implicated in the  present case at the instance of M.E.N.Patrudu (PW-20),  the then Registrar  (Vigilance) of the High Court of Andhra Pradesh, who was also member of  Andhra Pradesh Higher Judicial Service.  

       During trial, as A-2 was granted pardon, the trial proceeded against the  remaining three accused persons, as stated above.  During trial, the prosecution  examined several witnesses and got exhibited various documents.  Upon  conclusion of trial, the learned Special Judge acquitted A-3 and A-4, wife and son  respectively of A-1, but convicted A-1, as stated above, whereupon two appeals  were filed, one by the State against the acquittal of A-3 and A-4 and the other by  A-1 challenging his conviction before the High Court.  The appeal filed by the  State was dismissed whereas the one filed by A-1 was allowed and he was  acquitted of all the charges whereupon two Special Leave Petitions were filed  before this Court.  The Special Leave Petition filed against the order of the High  Court confirming acquittal of wife and son of A-1 was dismissed whereas leave  was  granted against the order of acquittal of A-1 rendered by the High Court.   Hence, this appeal in which an application was filed by M.E.N.Patrudu (PW-20),  the then Registrar (Vigilance) of Andhra Pradesh High Court, which gave rise to

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Criminal Misc. Petition No. 2569 of 2004 for expunging the adverse remarks  recorded by the High Court against PW-20 in the impugned order of acquittal of  A-1 which was directed to be considered at the time of hearing of the appeal.  

       In order to prove its case against A-1, who is respondent herein, the  prosecution has relied upon the following circumstances:  (i)     A-1 demanded a sum of Rs. 6 lacs by way of illegal gratification which was  later reduced to Rs. 3 lacs for showing official favour to PWs 1 and 2, who  were accused in Sessions Case No. 186 of 1989 which was pending trial  in his court and the said demand was made through PW-21.  

(ii)    PW-1 met the learned Chief Justice of Andhra Pradesh High Court and  obtained permission of the High Court for trap and registering a case.  

(iii)   On 4th September, 1996, which was the date fixed In Sessions Case No.  186 of 1989, A-1 pronounced the code word  that "all the petitions posted  to that date stand adjourned to 6th September, 1996" to assure PW-1 that  the amount was demanded on his behalf by PW-21 and to go ahead with  modalities worked out earlier, i.e., to pay the amount of Rs. 3 lacs in the  denomination of Rs. 500/- notes to his wife in his Hanumakonda house.  

(iv)    The amount of Rs. 3 lacs was paid to the wife of A-1 on 4th September,  1996 at his Hanumakonda house and the same was recovered by the trap  party at the instance of son of A-1 from the flush  tank of bathroom  attached to the master bedroom of his house.  

(v)     After payment of illegal gratification to the wife of A-1, PW-21 informed A-1  about the same on phone and fixed   time with him to meet PW-1 and A-1  was found meeting and entertaining PW-1 in his flat at Garudagagan  Apartments at Secunderabad in the night between 4th and 5th September,  1996 at 1.00 O’clock.  

       To prove the first circumstance, prosecution has led the evidence of            PWs 1, 2 and 21.  PW-21 who was an approver, stated that he was a constable  attached to the court of A-1 and  one day, in the month of June, 1996, A-1 called  him in his chambers and asked him to secure a driving licence for one of his  relatives which work was done, as such, he became familiar to A-1.  Thereafter,      A-1 called him  at his house and asked him to contact PWs 1 and 2, who were  accused in Sessions Case No. 186 of 1989, for payment of illegal gratification to  the tune of Rs. 6 lacs to A-1 whereupon those accused persons would be  acquitted.  The witness further stated that as he was afraid of PW-1, he met      PW -2 on 20th August, 1996 and conveyed the message of A-1 to him and on his  advise, met PW-1 on 24th August, 1996 and communicated the message to him  as well, who wanted some time to consult PW-2.  Five or six days thereafter, he  again met PW-1 who expressed that he  and PW 2 were in a position to pay only  a sum of Rs. 3 lacs and the said information was passed on by PW 21 to A-1  who asked him to settle the deal for the said sum.   PW-21 further stated that  thereupon he informed PW-1 that A-1 was ready to accept sum of Rs. 3 lacs for  recording acquittal of PWs 1 and 2.  Thereupon, as PW-1 appeared to be in  doubt whether the amount was actually demanded by A-1, PW-21 stated that it  would be confirmed on 4th September, 1996 which was the date fixed in the said  sessions case on which day in open court A-1 will announce "that all the matters  will be adjourned to 6th September, 1996", which could be taken as code word to  indicate that PW-21 approached PW-1 on behalf of A-1 and the amount of               Rs. 3 lacs should be paid to the wife of A-1 at his Hanumakonda house.  The  statement of PW-21 has been corroborated in all material particulars by PWs 1  and 2 and the trial court after a detailed discussion placed reliance upon their  evidence and the High Court was not justified in disbelieving their evidence on  the basis of certain minor contradictions in their evidence.  In our view, the  prosecution has succeeded in proving this circumstance by credible evidence.  

       In order to prove the second circumstance, the prosecution has examined  PW-1, Khaja Pasha (PW 15), PWs 20 and 23.  PW-1 stated that upon the receipt  of message of A-1 through PW-21, he informed ACB officials who refused to take  any  action on the ground that permission of the High Court was required as A-1

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was a member of Andhra Pradesh Higher Judicial Service.  Then on 3rd  September, 1996, PW 1 could telephonically talk to PW-15, Private Secretary to  the learned Chief Justice, Andhra Pradesh High Court, and appointment was  fixed to meet the learned Chief Justice at 8.00 p.m. on that day.  PW-15 further  advised PW-1 to bring a written representation.  Thereupon PW-1 went to the  residence of the learned Chief Justice along with written representation (Ex.P-1)  and gave the same to PW-15 in a sealed cover.  After some time, he was called   by the learned Chief Justice who asked PW-1 as to whether the contents of  Ex.P-1 were true and correct and warned him that in case the same were found  to be false, action would be taken against him.  He  further stated that he was  asked by the learned Chief Justice to come again on the next day in the morning  and accordingly this witness again went to  the residence of the learned Chief  Justice on 4th September, 1996 at 7.30 a.m.  At that time, the Director General,  ACB,   the Joint Director, ACB, the Deputy  Superintendent of Police, ACB,   (PW.23)  were already present at the house of the learned Chief Justice  besides  PW-20, the then Registrar (Vigilance) of the Andhra Pradesh High Court and he  was informed by the learned Chief Justice that the Joint Director, ACB, will take  care of the case under the guidance of Director General, ACB, whereupon PW-1  presented complaint before the Joint Director, ACB, on the same day.  The  aforesaid statement of PW-1 has been corroborated by PW-15, Private Secretary  to the learned Chief Justice, Andhra Pradesh High Court, and PW-20- the then  Registrar (Vigilance) and PW-23, who is said to have written a letter on 4th  September, 1996 to the Director, ACB, to conduct a trap and register  case  against A-1.  PW-23 has also supported the statement of PW-1.  The statements  of these witnesses are consistent with each other and have been relied upon by  the trial court, but the High Court was not justified in refusing  to place reliance  upon them as there were certain  minor discrepancies therein  Thus, we find that  the prosecution has proved this circumstance as well.  

       To prove the third circumstance, the prosecution has led the evidence of  PW-1, M.Ramakrishna Rao (PW-8), Milan Gokele (PW-9), T. Harikrishna              (PW-12) and PW-21.    PW-1 stated that on 4th September, 1996, he was present  in the court room when A-1 announced the code word  by saying that "all the  matters stand adjourned to 6th September, 1996".  The statement of PW-1 has  been supported by PW-8 who was a special public prosecutor conducting  Sessions Case No. 186 of 1989 who has categorically stated in his evidence that  after luncheon recess when the case was taken up, A-1, who was the Presiding  Officer, stated in open court that "all the matters stand adjourned to 6th  September, 1996" but on the representation made by PW-9, the defence  counsel, the case was adjourned to 9th September, 1996 as 6th September, 1996  was not convenient to PW-9.  PW-9, the defence counsel, corroborated the  statement of PW-8.  He further stated that as 6th September, 1996 was not a date  convenient to him, the matter was adjourned to 9th September, 1996 on his  representation.  PW-12, Inspector of Police, ACB, stated that he was deputed to  attend the court on 4th September, 1996 to observe the proceedings in Sessions  Case No. 186 of 1989 and on that day in his presence, A-1 announced  in open  court that "all the matters stand adjourned to 6th September, 1996".  PW-21  stated that though on that day he had also gone to the court, he did not go inside  the court hall, but was standing outside the court hall and after the case was  adjourned, PW-1 came out from the court hall and informed this witness that A-1  announced code word in open court by saying that "all the matters stand  adjourned to 6th September, 1996".  From a bare perusal of the evidence of these  witnesses, it would be clear that their evidence is consistent with each other and  there is no contradiction therein on any  material point.  We find that the trial  court was justified in relying upon their evidence to prove the circumstance and  the High Court was wholly unjustified in doubting the veracity of their statements  on the basis of  minor contradictions in their evidence.  

       In order to prove the fourth circumstance, the prosecution adduced the  evidence of PWs 1, 3, 21, 22 and 23.  PW-1 stated that on 4th September, 1996,  he went to ACB office with the sum of Rs. 3 lacs kept in a plastic cover and  handed over the same  to the Dy. Superintendent of Police, ACB (PW-23) and  his statement has been corroborated by PWs 3, 22 and 23.  These witnesses  have further stated that phenolphthalein powder was applied to the currency  notes.  It was arranged  that PWs 1 and 21 would go inside the house of  A-1 at

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Hanumakonda and after paying the sum of Rs. 3 lacs to his wife, they would  come out from the house and PW 1 would give signal to the trap party by wiping  his face with handkerchief and thereupon the trap party would go inside the   house. PW-1 stated that according to pre-arranged plan, while the trap party was  waiting outside the house at some distance, he and PW-21 went inside the  house of A-1 at Hanumakonda which was bolted from inside and on the call bell  being pressed by PW-21, wife of A-1 opened the door and on being told by PW  21  that they were sent by A-1, she stated that she had already received a  message from A-1 and was waiting for them.  The witness further stated that  PW-21 was asked by wife of A-1 to count the money which was in plastic cover  and thereafter to keep the same on teapoy pursuant to which PW-21 after  counting kept the plastic cover containing the sum of Rs. 3 lacs  on the teapoy.   Wife of A-1 asked her son to keep the said plastic  cover  in the cup-board.  Whereafter PWs 1 and 21 came out from the house and according to the pre- arranged plan, signal was given to the members of the trap party who arrived  there and were taken inside the house by PWs 1 and 21.   PWs 3, 22 and 23,  who were members of the trap party, stated that on receiving pre-arranged signal  from PW-1, they, along with PWs 1 and 21, entered the house of A-1 after his  wife opened the door and they disclosed their identity.  On  being asked by the  trap party, she denied any knowledge about the sum of Rs. 3 lacs.  These  witnesses  further stated that son of A-1, who was deaf and dumb, made  gestures and signs and took them to the bath room attached to the master  bedroom and  opened the lid of the flush tank in which plastic cover containing  sum of Rs. 3 lacs was found  and the same was taken out by PW-3 on the  instructions of DSP, ACB (PW 23).  After opening the cover, the numbers of  currency notes were compared and the same tallied with the numbers noted  down separately on a sheet of paper by the members of the trap party.  The trap  party thereafter seized the amount of Rs. 3 lacs and prepared mazhar  for the  same.  Members of the trap party also took photograph of the plastic cover  containing sum of Rs. 3 lacs before the same was taken out from the flush  tank.   The evidence of PWs 1 and 21 has been supported by PWs 3, 22 and 23, who  were members of the trap party, and the trial court did not find any discrepancy in  their evidence, but the High Court erroneously refused to place reliance upon  their evidence merely because there were certain minor contradictions therein.  

       In order to prove the last circumstance against the respondent (A-1), the  prosecution  examined PW-1, D.Subba Rao (PW 4), K. Ramesh (PW 6),  Butchanna Goud (PW 7), K.Kumar (PW-18) and PWs 21 & 22.  PW-21 stated  that after the seizure, he along with members of the trap party left for Hyderabad  and from the house of PW-7, he had a telephonic talk with A-1 and informed him  about the payment of Rs. 3 lacs and fixed up time of the meeting of PW-1 with   A-1.  PW-21 further stated that according to pre-arranged programme, in the  night between 4th and 5th September, 1996 at 1.00 o’clock, PWs 1 and 21 went to  the flat of A-1, which was situated at Garudagagan Apartments, Secunderabad,  and they were followed by PW-4 and  PW-22.  While PWs 1 and 21 were going  to the flat of A-1, they met PW-6 who was the watchman.  After meeting A-1,  PW-1 stayed  in the flat of A-1 while PW-21 came out and the door was bolted  from inside.  After some time, PWs 4, 18 and 22 came there and found that PW- 21 was standing outside the flat.   PW-1 in his evidence  corroborated the  aforesaid statements made by PW-21.  PWs 4, 18 and 22 stated that on call bell  being pressed, A-1 opened the door and they found that PW-1 who was accused  in Sessions Case No. 186 of 1989 was being entertained  in the house of A-1 at  such an odd hour. PW-7 stated that PW-21 had a telephonic talk with A-1 from  his house.  PW-6, the watchman of Garudagagan Apartments stated that PWs 1,  4,18,21 and 22 came to the flat of A-1 during that night.  The statements of PWs  1, 4,6,7,18,21 and 22 have been relied upon by the trial court to prove this  circumstance against the respondent upon threadbare discussion of their  evidence and the High Court was not justified in disbelieving the same on  account of minor contradictions.  Thus, we find that the prosecution has proved  this circumstance as well by credible evidence.  

       From the foregoing discussions, it would be clear that the prosecution has  succeeded in proving its case beyond reasonable doubt, the trial court was quite  justified in recording conviction of A-1 and the judgment of High Court acquitting  him  suffers from the vice of perversity as it has refused to place reliance upon

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the evidence of witnesses merely on the basis of certain minor contradictions in  the evidence of witnesses, though, they have supported the prosecution case on  all material particulars.  In our opinion,  the High Court was also not at all justified  in making adverse remarks in the impugned judgment against PW-20,  the then  Registrar (Vigilance) of the Andhra Pradesh High Court, which were wholly  uncalled for and the same are accordingly liable to be expunged.  

       For the foregoing reasons, the appeal as well as  Criminal Misc. Petition  No. 2569 of 2004 are allowed, the judgment of acquittal, rendered by the High  Court so far the same relates to A-1, is set aside, the order of conviction of A-1  recorded by the trial court is restored and the adverse remarks, recorded in the  impugned judgment against PW-20, are expunged.  The respondent is directed  to be taken into custody forthwith to serve out the remaining period of sentence.