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CASE NO.: Appeal (crl.)  121 of 1998

PETITIONER: Varada Rama Mohana Rao

RESPONDENT: State of Andhra Pradesh  

DATE OF JUDGMENT: 25/03/2004

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

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       The appellant before us was charged for the offences   punishable under Sections 7, 13 (2) read with Section  13 (1) (d) of  the Prevention of Corruption Act, 1988  before the  court  of  Special Judge (SPE & ACB Cases), Nellore and was found guilty  of the said offences by the said court which sentenced the appellant  to undergo R.I. for 2 years and to pay  a  fine of Rs.1,000/- for the  offence punishable under Section 7 of the said Act and it also  sentenced him to undergo R.I. for  2 years and to pay a fine of  Rs.1,000/- for the offence punishable under Section  13 (1) (d) read   with Section  13 (2) of the said Act.  Both the substantive sentences  were however ordered to run concurrently.         The appeal filed by the appellant before the High  Court of  Andhra Pradesh at Hyderabad  came to be dismissed  but the High  Court reduced the  sentence to one year on  both the counts while  the sentences of fine imposed by the trial court was sustained.    Prosecution case briefly stated is as follows : The appellant while  working as Additional Public Prosecutor,  Grade I (APP) at Nellore demanded a sum of Rs.2000/- as illegal  gratification  on 31.7.1991 from PW-1 for effectively pursuing a  criminal complaint filed under Section 138  of the Negotiable  Instruments Act against one Mahiratnam Gupta. It is stated that  after negotiation the appellant agreed to receive Rs.1500/- instead  of Rs.2000/-. But PW-1 being aggrieved by such demand lodged a  complaint with the Anti-Corruption Bureau pursuant to which a trap  was laid. In the said trap, the appellant was caught receiving the  said sum of Rs.1500/- and  the phenolphthalein test conducted  pursuant to the said trap  proved positive in his  hand and inner  lining of the shirt pocket where he had kept the  amount received by  him during the trap. The case of the defence was that there was serious  rivalry   between himself and one Sethu Madhava Rao who was then APP  Grade II with whom  he originally worked in a common senior’s  office. The said Sethu Madhava Rao entertained a grievance that  the appellant had got promotion earlier to him, hence, was  entertaining ill will against the appellant and it is pursuant to the  said ill will in collaboration with the Superintendent of Police who  also was inimically disposed towards the appellant for having  refused to withdraw certain criminal cases on the recommendation  made by the said Superintendent of Police, had conspired to falsely  implicate the appellant through PW-1. It is also the defence case  that appellant never handled the case with which PW-1 was  connected  hence, there was no question of the appellant demanding  any bribe in that  regard. The defence also challenged the  genuineness of the trap and had given an explanation that PW-1 at

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the relevant time  brought some files below  which some  currency  notes were kept which was  not known  to the appellant and at that  time two of his colleagues who were also APPs were present.  It is  stated  soon after  the file was handed over to  the appellant by PW- 1 the team which had organised the trap along with the panch  witnesses came to the office of the appellant and asked the  colleagues of the appellant to leave the room and recovered the  money from the file. The defence admitted that the appellant’s  fingers had turned positive for the phenolphthalein test which  the  appellant contended  was because in the process of holding the file  he might have touched the currency notes. In support of its case the  defence  examined two APPs who were allegedly present in the  office of the appellant when PW-1 brought the file. The trial court  rejected the defence  version and relying on the prosecution  evidence, including  the evidence led in support of the trap  convicted the appellant, as stated above, which conviction has been  confirmed by the High Court. It is in this background the appellant  is now before us in this appeal. Shri M.N.Rao, learned senior counsel appearing for the  appellant firstly submitted that the appellant’s case was totally  prejudiced by the appointment of said Sethu Madhava Rao as the  Prosecutor in the case. He submitted that these two persons were  working as Junior Advocates in the office of a  common senior and  were appointed as APPs simultaneously but during the course of  their service the appellant having been found to be a better counsel  was promoted as APP-I which was not to the liking of the said  Sethu Madhava Rao. He also pointed out that there is  sufficient  material to show that this Sethu Madhava Rao was inimically  disposed towards him. He also contended that the concerned  Superintendent of Police had recommended the withdrawal of about   1000 criminal prosecutions which the appellant had opposed,  therefore, this police officer was also inimically disposed towards  the appellant, hence, these two persons in connivance with PW-1  had managed to organise a trap so as to create a false case against  the appellant. The learned counsel submitted that at the initial stage  itself the appellant had represented to the Government not to  appoint the said Sethu Madhava Rao as a Prosecutor in  the case  because it would prejudice his defence and having failed to  convince the Government on this ground he had filed a criminal  petition under Section 482 of the Code of Criminal Procedure  before the High Court for removing the said Sethu Madhava Rao  from the post of Prosecutor in this case, but the High Court  erroneously rejected the said prayer.  Learned counsel also pointed  out that there has been some serious irregularities in the framing of  the charges which is indicated from the records of the case,  therefore, the trial stood  vitiated on that ground also. He also  pointed out that the trap in question did not prove the fact that the  appellant had demanded and received any illegal gratification.  Though he admitted that the fingers of the appellant did turn  positive in the phenolphthalein test, he stated that the lining of the  pocket most probably turned positive because in all probability the  appellant being nervous might have touched his shirt pocket. He  also argued that the evidence led by the prosecution was wholly  unreliable. He contended  that per contra, the defence evidence  clearly showed that the prosecution case was false. The first argument of the learned counsel for the appellant that  the appointment of Sethu Madhava Rao has prejudiced the case of  the appellant because he was inimically disposed towards the  appellant has to be rejected on more than one ground. It is to be  noted that when Sethu Madhava Rao was appointed as the  Prosecutor in the present case, the appellant did represent to the  Government and that representation was obviously not considered  because of which the appellant had moved the High Court by way  of a criminal petition. The High Court, for reasons mentioned in the  said order, rejected the prayer for change of the Prosecutor and

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there being no further challenge the same became final and it is not  open to the appellant now to question the same in these  proceedings.  Learned senior counsel appearing for the appellant  relied on a judgment of this Court in the case of Satyadhyan Ghosal  & Ors. Vs. Sm.Deorajin Debi & Anr. {1960 (3) SCR 590} wherein  this Court had held that the appellant in  that case was not precluded  from raising before this Court the question of tendency involved in  that case merely because he had not appealed from the earlier  adverse order made by the High Court on remand. This Court in  that case had held  interlocutory order which did not terminate the  proceedings and which had not been appealed because no appeal  lay or even if the appeal lay, the same was not taken, could be  challenged in an appeal from the final decree or order. Apart from the fact that  the ratio laid therein does not apply  to the facts of the present case, it  is to be seen  that in this case the  appellant had independently challenged the appointment of the  Prosecutor in a criminal petition. This was not a proceeding  initiated in the course of the present trial and the challenge to the  said appointment was on facts and circumstances outside the scope  of the prosecution case, therefore, he having failed in that attempt  and the High Court having upheld the appointment of Sethu  Madhava Rao as a Prosecutor in this case, that issue stands closed.    Therefore,  it  is not open to the appellant to re-open the same for  the first time in this appeal. That apart it is to be noted that the  appellant has not been able to establish how the conducting of a  criminal trial by a counsel who according to the accused is  inimically disposed towards him would prejudice his trial because  the learned counsel does not give evidence in this case and the  manner in which he presents his case is always subject to judicial  scrutiny by the concerned court.   His personal opinion  has no  place in the decision making process of the court.  At the most  he  may  present his case with vehemence  and with a  touch of  vengeance  but this would not   in any manner  either  influence the  decision making  process of the court    or would  cause any  prejudice to the accused in his defence.   This, however, does not  mean that we approve  the fact that a person who is admittedly on  bad terms with the accused  should be appointed as a prosecuting  counsel unless for good reasons. May be in this  case in view of the  strained relationship   between the parties, the learned  prosecutor   could have recused  himself but that was  a choice left entirely   to  him and that by itself  does not prejudice  the trial  in any manner.    The learned counsel for the  appellant  also has failed  to show any  prejudice that has occurred to the accused because of  the selection   of the  prosecutor. The  next  argument of  the learned counsel for the appellant  that there has been some serious suspicion in regard to the  correctness of the charges framed in this case  is based on the  contents  of  a certified copy of the charge framed by the trial court.  The learned counsel contended that this certified copy   of  the  charge  does not show that the appellant was accused of demanding   illegal gratification while the order framing  charge  as found in the  court papers   shows  that such  a charge  was  framed.  The learned  counsel  contended  that this gives rise to a suspicion that there  must have been some  manipulation  of  the court records.  We are  unable to  accept this  argument  primarily because this was not   raised either in the trial court or in the first appellate  court.  The  appropriate forum would have been the trial court which could have  given a finding   in this regard.   Since no such attempt was made   in  the trial court, we decline  to entertain  this complaint.   The next contention of the learned counsel for the appellant  is  that the prosecution has failed to establish the factum  of the  appellant  having received the illegal gratification.   Apart from the  fact  that two courts below  have after  considering the material on  record  produced both by the prosecution  and the defence have  come to the conclusion that the prosecution has established  its

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case,  we notice that it is an admitted  fact by the appellant himself  that PW-1 did conceal the currency notes  worth Rs.1,500/- along  with the case papers which he brought to the appellant, and while  handling the said case  papers  he did come in contact with the said  currency notes without knowing of its placement.  This explanation   has been considered and rejected by the two  courts below and we  find no reason to  accept   the same.  From the evidence  of PW-1   coupled with the facts  proved by way of  trap, we are satisfied  that   the  accused  did receive the money as contended  by the  prosecution.  The learned counsel for the appellant then contended  that the  presence of phenolphthalein powder found in the pocket   of the shirt of the accused could have been due to the fact that the  accused  accidentally touched his shirt  pocket.  This is not the  defence  of  the  accused  in the courts below and the same does not  also stand  to reason because the phenolphthalein  powder  was  found in the  inner lining of the shirt of the accused which could not  have been  possible  by the accused merely touching  the pocket and  could have   been only  possible  if the tainted money was kept in  his  pocket. The courts below, in our opinion, have rightly  rejected the  defence evidence.  Therefore, in our opinion, the prosecution in this  case  has proved the guilt of the appellant beyond all reasonable  doubt.   

For the reasons stated above, this appeal fails and the same is  dismissed.