Full Judgment Text
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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
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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
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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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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