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CASE NO.: Appeal (crl.)  550 of 1997

PETITIONER: State of Andhra Pradesh                                  

RESPONDENT: T.Venkateswara Rao

DATE OF JUDGMENT: 04/02/2003

BENCH: N.Santosh Hegde & B.P.Singh

JUDGMENT:

J U D G M E N T

SANTOSH HEGDE,J.

       State of Andhra Pradesh is in appeal against the judgment  of the High Court of Andhra Pradesh at Hyderabad made in  Criminal Appeal No.491 of 1989 whereby the High Court set  aside the judgment and conviction recorded by the Principal  Special Judge for SPE & ACB cases at Hyderabad against the  respondent herein. Brief facts necessary for disposal of the  appeal are that the respondent who while working as  Commissioner, Sangareddy Municipality during the year 1986- 87 demanded and obtained an illegal gratification of Rs.400/- to  show an official favour to award the work order to PW-1 who  was a successful tenderer in a municipality contract, thus  committed an offence punishable under section 5(1)(d) read  with 5(2) of the Prevention of Corruption Act, 1947 (the Act) as  also an offence under section 161 IPC. In this regard, the  prosecution alleges that on 20.4.1987 when PW-1 met the  respondent and requested him for the work order which he was  entitled to pursuant to the acceptance of his tender for doing a  contract job for the Municipality, the respondent demanded a  bribe of Rs.500 to issue the work order. When PW-1 expressed  his inability to pay such a huge amount respondent reduced the  said amount to Rs.400 and directed PW-1 to pay that amount  within 3 or 4 days. PW-1 being aggrieved by such an illegal  demand of the respondent went to Nizamabad and contacted  PW-5 who was then working as Deputy Superintendent of  Police, Anti-Corruption Bureau, Nizamabad District and lodged  a complaint Ex. P-9. Pursuant to the said complaint PW-5  directed PW-1 to come back to him on 24.4.1987 at 9 a.m. at  Shankarampet Guest House. Prosecution further alleges that  PW-5 after verifying the antecedents of PW-1 obtained  necessary permission of competent authority for laying a trap.  He also made necessary arrangements for requisitioning  officers working in the office of the Superintending Engineer,  Nizamabad to act as mediators. PW-4 was one such person who  was chosen to be the mediator. Prosecution then alleges that on  24.4.1987 PW-5 accompanied by his staff and others including  PWs.1 and 2 came to Sangareddy at about 12 p.m. PW-5 by  then had already instructed PWs.1 and 2 to carry the pre- marked currency notes totalling Rs.400 in value to be handed  over to the respondent. It is the further allegation of the  prosecution that on that day after reaching Sangareddy PWs.1  and 2 went to the office of the respondents and offered to pay  bribe but then respondent asked them to meet him at his  residence during the lunch-break. Accordingly PWs.1 and 2  went and informed PW-5 whereupon all of them proceeded at

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about 1 p.m. to the house of the respondent and PWs.1 and 2  went inside the house when the respondent asked them as to the  money whereupon PW-1 paid pre-marked currency notes to the  respondent who took them inside his bed-room and kept them  under mattress. On PW-2 giving the necessary signal PW-5 and  other members of the raiding party entered the house of the  respondent and asked him whether he had received any money  from PW-1. Prosecution alleges that the respondent admitted  having received the said amount and on being told by PW-5 he  brought the said money from his bed-room and when his hands  were tested for the presence of phenolphthalein powder with  water, same proved positive. Prosecution further alleges that the  proceedings were drawn up which were attested by PW-4 and it  is based on the said investigation that the respondent was  charged for offences as stated above.

       While the prosecution mainly relies on the evidence of  PWs.1 to 5 the respondent in his defence examined 9 witnesses  to establish his innocence. It was the defence case that the stage  of issuing work order had not been reached because the contract  in question was yet to be accepted by the Municipal Council or  the Collector who was in-charge of the Council then, hence  question of demanding bribe did not arise at all. The defence  had further pleaded that the respondent was being falsely  implicated because he was opposing a cartel of contractors in  Sangareddy who were using unfair means to obtain contracts  and also because of the enmity he had with PW-3 who was an  Engineer in the said municipality and was supporting the said  cartel. It is the further case of the defence that  at the instance of  PW-3 a trap on false allegations was laid. The defence in  support of its case also examined the Collector of the District to  show that the contract was not ready to be executed. Defence  also examined an attendant of respondent’s office to show that  PWs.1 and 2 did not come to the office of the respondent on the  morning of 24.4.1987. It further examined witnesses to show  that PW-2 was inimically disposed towards the respondent  because of a prior criminal complaint lodged by the respondent  against his relative. In his statement recorded under section 313  Cr.P.C. the respondent had pleaded that because of the enmity  the contractors and PWs.1, 2 and 3 had with him, a false case of  trap was set up on 24.4.1987. He also stated that in fact PWs.1  and 2 had come to his house when he was not in the house on  the pretext of making a telephone call and had entered the bed- room and had stealthily kept the tainted money under the  mattress and after the respondent came home for lunch, PW-1  came and shook hand with him for a favour which the  respondent had supposedly shown to him. That is how his  fingers came in contact with the phenolphthalein powder. The trial court after considering the material on record  came to the conclusion that the prosecution has established its  case and rejecting the defence case found the respondent guilty  of an offence punishable under section 161 IPC and section  5(1)(d) read with section 5(2) of the Act and awarded the  sentence of one year RI on each of the counts but directed the  sentences to run concurrently.  

In appeal the High Court of Andhra Pradesh took a  contrary view and came to the conclusion that the prosecution  has failed to establish beyond reasonable doubt its case against  the respondent hence allowed the appeal. In that process the  court came to the conclusion that there was evidence to support  the defence case regarding the existence of a cartel of  contractors which used to corner tenders by unethical means  and the same was opposed to by the respondent, hence the  contractors in Sangareddy had a good reason to falsely

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implicate the respondent. It  also came to the conclusion  agreeing with the trial court, that the Municipal Engineer PW-3  had enmity with the accused and had all the reason to join  hands with the said contractors hence his evidence cannot be  relied. The High Court also came to the conclusion that the  occasion for demanding bribe as on 14.4.1987 or 24.4.1987 did  not arise because though there was only one tender for the  works advertised by the Municipality, the same had not yet  been accepted and the agreement having not being executed, the  stage for awarding the work order had not reached, therefore,  there could not have been a demand for any bribe. The High  Court also noticed the fact that if really the respondent had  demanded a bribe from PW-1 he would not have accepted that  in the presence of PW-2 because admittedly PW-2 had some  enmity with the respondent because of a criminal complaint  lodged by him against a close relative of PW-2. Thus High  Court noticing the improbabilities in accepting the bribe gave  the benefit of doubt and allowed the appeal of the respondent,  setting aside the conviction and sentence awarded by the trial  court.  In this appeal, Ms. K Amareshwari, learned senior  counsel appearing for the appellant-State contended that the  High Court has seriously erred in rejecting the prosecution case  especially that of PW-5 the officer who conducted the raid and  PW-4 an official of the Department of Engineering who had no  enmity with the accused whose evidence established beyond  reasonable doubt that the amount in question was paid to the  respondent on 24.4.1987. She also contended that even if the  evidence of PWs.2 and 3 are to be ignored evidence of PWs.1,  4 and 5 are sufficient to base a conviction on the respondent.

Having heard learned counsel for the parties and having  perused the records, we are unable to accept the argument  addressed on behalf of learned counsel for the appellant. We  think the High Court was justified in coming to the conclusion  that the contract for which PW-1 had offered his bid was only  under consideration and was not finally accepted therefore, the  question of the respondent agreeing to give the work order on  payment of bribe did not arise. The High Court was also  justified in coming to the conclusion that on 24.4.1987 between  11 a.m. and 1 p.m. respondent was not in his office hence the  prosecution case that PWs.1 and 2 approached him in his office  on that day to pay the bribe cannot be accepted. The High Court  was also justified in coming to the conclusion that no  reasonable man would have agreed to accept the bribe in the  presence of PW-2 who admittedly had a grievance against the  respondent. These findings, in our opinion, are based on  material on record and there is no perversity involved in the  conclusions arrived at by the High Court in regard to these  findings. Though learned counsel for the appellant is justified in  contending that PWs.4 and 5 are independent witnesses hence  their evidence ought not to have been rejected by the High  Court, in our opinion the fact that they are independent  witnesses ipso facto does not establish the prosecution case that  the respondent demanded or received a sum of Rs.400 in the  form of tainted currency notes on the said date. Their evidence  only establishes the fact that when they entered the house,  Rs.400 was recovered from under the mattress in the bed-room  of the respondent and on testing the respondent’s hand tested  positive for having handled the tainted money. This evidence  even if it is accepted as true would not lead to an irresistible  conclusion that this money was received by the respondent as  bribe money because of the explanation given by the  respondent wherein it is stated that the money in question was  kept in advance by PWs.1 and 2 before his arrival in the house

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and he was asked to bring that money by PWs.4 and 5 when  they came to his house which he did. Because of his handling  the currency, he came in contact with the phenolphthalein  powder. Bearing in mind the findings of the High Court in  regard to the genesis of this bribery demand we think the  explanation given by the respondent by way of defence and  supported by evidence cannot be rejected as improbable or far- fetched.

In this view of the matter, we find no merit in this appeal.  The appeal fails and the same is hereby dismissed.