K. Shanthamma v. State of Telangana , 2022

Case Summary

Full Case Details

Ajay Rastogi, Abhay S. Oka, JJ.

1. The Special Court under the Prevention of Corruption Act, 1988 (for short ‘the PC
   Act’) convicted the appellant for the offences punishable under Sections 7 and 13
   (1)(d) read with Section 13(2) of the PC Act. The order of conviction has been
   confirmed in appeal by the High Court of Telangana.
2. The prosecution case, in brief, is that the appellant was working as a Commercial
   Tax Officer at Secunderabad. PW1 2 Shri R.Seetharamulu @ Sharma is the
   complainant. PW1 was working at the relevant time as a supervisor in Farmers ’
   Service Co-operative Society (for short ‘the said Society’). He was doing the work
   of filing returns of commercial tax of the said Society. Though the assessment of
   the said Society for the year 1997-98 was completed, till February 2000, the returns
   of the said Society for the year 1996-97 remained pending for assessment. The
   appellant issued a notice dated 14th February 2000 calling upon the said Society to
   produce cash book, general ledger, and purchase and sales statements for the year
   1996-97. In February 2000, on the instructions of the Managing Director of the said
   Society, PW1 attended the office of the appellant along with the concerned record.
   After PW1 showed the documents to the appellant, she called PW4 Ahmed
   Moinuddin, ACTO, and directed him to verify the records. The case of PW1 is that
   on 24th February 2000, when he met the appellant, she demanded a bribe of
   Rs.3,000/- for issuing an assessment order. Though he showed unwillingness to
   pay the amount, for consecutive three days, the appellant reiterated the demand. On
   29th February 2000, 3 PW1 requested the appellant to issue final assessment order.
   At that time, the appellant informed PW1 that unless the bribe as demanded is paid,
   she will not issue final assessment order. On 23rd March 2000, PW1 again
   approached the appellant when she scaled down her demand to Rs.2,000/-.
3. On 27th March 2000, PW1, along with the Managing Director of the said Society,
   visited the office of the Anti Corruption Bureau (ACB) at Hyderabad. PW1 filed a
   written complaint to the Deputy Superintendent of Police, ACB. Accordingly, a
   trap was laid. The allegation of the prosecution is that when PW1 tendered the
   tainted currency notes of Rs.2,000/- to the appellant in her office, instead of taking
   the amount directly, she took out a diary from her table drawer and opened the
   same. She asked the appellant to keep the currency notes in the diary. Accordingly,
   PW1 kept the notes in the said diary. After closing the diary, the appellant kept the
   same in her table drawer. She locked the table drawer and kept the key in her
   handbag. After that, she called ACTO along with the record. The appellant signed
   on the last page of the ledger and cash book by putting the date as 26th 4 February
4. Thereafter, the appellant directed the attender to affix an official rubber
   stamp below her signature. Accordingly, a rubber stamp was put by the attender.
   PW1 collected the general ledger and cash book from the attender, and after
   coming out of the office, he gave a signal to the trap party. Then the trap party
   entered the office of the appellant. When the appellant was questioned by the
   Deputy Superintendent of Police, she showed her right-hand side table drawer. She
   took out the key of the drawer from her handbag and opened the table drawer. She
   took out the diary from the drawer and placed the same on the table. After the diary
   was opened by the Deputy Superintendent of Police, he found a wad of currency
   notes. The numbers on the currency notes tallied with the serial numbers of
   currency notes described in pre-trap proceedings. After that, the seizure was carried
   out, and necessary formalities were completed. The Special Court found that the
   demand of bribe and acceptance of bribe was proved by the prosecution. The High
   Court has affirmed the said finding.
5. Mrs. V. Mohana, the learned Senior counsel appearing for the appellant, has taken
   us through the evidence of the prosecution witnesses. Her first submission is that
   the demand for a bribe by the appellant was not proved, and the evidence of PW1
   to that effect is an improvement. Moreover, LW8, who was instructed by the
   Deputy Superintendent of Police of ACB to accompany PW1 inside the chamber of
   the appellant, did not enter the chamber along with the appellant. She pointed out
   that when the sodium carbonate test was conducted, the fingers of the appellant did
   not turn pink; therefore, it was not established that she accepted the currency notes.
   The alleged recovery of currency notes was shown from a diary. The recovery has
   not been proved. She pointed out the appellant’s defence that PW1 deliberately kept
   the currency notes in the diary lying on her table when she went to the washroom
   before leaving her office. Her submission is that the recovery of currency notes has
   not been proved.
6. The learned Senior Counsel pointed out that the notice dated 26th February 2000
   issued by the appellant was admittedly served on the said Society on 15th March
   2000, which recorded that the net turnover of the said Society was nil in the year
   1996-97. Therefore, the Society was not liable to pay any tax. Her submission is
   that this makes the entire prosecution case about the demand extremely doubtful.
   She pointed out that PW4, ACTO had a grudge against the appellant as, admittedly
   on 22nd March 2000, the appellant had served a memo on him pointing out the
   defaults committed by him in the discharge of his duties. The learned counsel
   relied upon various decisions of this Court in support of the proposition that unless
   the demand and acceptance of bribe are established, a presumption under Section
   20 of the PC Act will not apply. She urged that the demand and acceptance have
   not been proved. She also pointed out the case made out by the appellant in her
   statement under Section 313 of the Code of Criminal Procedure, 1973 (for short
   “the CrPC”). Her defence is that at about 5.30 pm on 27th March 2000, she went to
   the washroom attached to her chamber before leaving the office. When she came
   back, she found PW1 sitting in her room. She informed PW1 that the file was no
   longer pending with her. Afterward, she called PW4- ACTO through the attender
   and returned the account books to PW1. She pointed out that PW7, P.V.S.S.P.
   Raju, and PW8, U.V.S.Raju, the then Deputy Superintendent of Police, ACB,
   Hyderabad, accepted that there is a washroom attached to the chamber of the
   appellant. She submitted that both the Courts have committed an error by
   convicting the appellant.
7. Ms. Bina Madhavan, the learned counsel appearing for the respondent, supported
   the impugned Judgments. She pointed out that the evidence of PW1 on continuous
   demands made by the appellant is trustworthy as there is no reason for PW1 to
   make any false allegation or falsely implicate the appellant. She submitted that the
   tainted notes were found in the diary of the appellant, which was kept in her table
   drawer. She was in possession of keys of the table drawer. She herself opened the
   table drawer and produced the diary from her custody in which tainted notes were
   kept. Her submission is that though communication may have been served on the
   said Society on 15th March 2000 recording that the Society is not liable to pay any
   amount, the appellant did not issue the final assessment order. She pointed out that
   the demand made by the appellant was for issuing final assessment order, which
   was issued on the day of the trap. Her submission is that the Special Court and the
   High Court, after appreciating the evidence, have recorded findings of fact based
   on evidence on record. Her submission is that under Article 136 of the Constitution
   of India, no interference is called for.
8. We have given careful consideration to the submissions. We have perused the
   depositions of the prosecution witnesses. The offence under Section 7 of the PC
   Act relating to public servants taking bribe requires a demand of illegal
   gratification and the acceptance thereof. The proof of demand of bribe by a public
   servant and its acceptance by him is sine quo non for establishing the offence
   under Section 7 of the PC Act. In the case of P. Satyanarayana Murthy v. District
   Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152,
   this Court has summarised the well-settled law on the subject in paragraph 23
   which reads thus:
   “23. The proof of demand of illegal gratification, thus, is the gravamen of
   the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in
   absence thereof, unmistakably the charge therefor, would fail. Mere
   acceptance of any amount allegedly by way of illegal gratification or
   recovery thereof, dehors the proof of demand, ipso facto, would thus not
   be sufficient to bring home the charge under these two sections of the Act.
   As a corollary, failure of the prosecution to prove the demand for
   illegal gratification would be fatal and mere recovery of the amount
   from the person accused of the offence under Section 7 or 13 of the
   Act would not entail his conviction thereunder.” (emphasis added)
9. The prosecution’s case is that the appellant had kept pending the return of
   commercial tax filed by the said Society for the year 1996-97. The appellant had
   issued a notice dated 14th February 2000 to the said Society calling upon the said
   Society to produce the record. Accordingly, the necessary books were produced by
   the said Society. The case made out by PW1 is that when he repeatedly visited the
   office of the appellant in February 2020, the demand of Rs.3,000/- by way of illegal
   gratification was made by the appellant for passing the assessment order. However,
   PW1, in his cross examination, accepted that the notice dated 26th February 10 2000
   issued by the appellant was received by the said Society on 15th March 2000 in which
   it was mentioned that after verification of the books of accounts of the said Society,
   exemption from payment of commercial tax as claimed by the said Society was
   allowed. PW1 accepted that it was stated in the said notice that there was no necessity
   for the said Society to pay any commercial tax for the assessment year 1996-97.
   According to the case of the PW1, on 23rd March 2000, he visited the appellant’s
   office to request her to issue final assessment order. According to his case, at that
   time, initially, the appellant reiterated her demand of Rs.3,000/-. But she scaled it
   down to Rs.2,000/-. Admittedly, on 15th March 2000, the said Society was served
   with a notice informing the said Society that an exemption has been granted from
   payment of commercial tax to the said Society. Therefore, the said Society was not
   liable to pay any tax for the year 1996-97. The issue of the final assessment order was
   only a procedural formality. Therefore, the prosecution’s case about the demand of
   bribe made on 23rd March 2000 by the appellant appears to be highly doubtful.
10. PW1 described how the trap was laid. In the pre-trap mediator report, it has been
    recorded that LW8, Shri R.Hari Kishan, was to accompany PW1 – complainant at the
    time of offering the bribe. PW7 Shri P.V.S.S.P. Raju deposed that PW8 Shri U.V.S.
    Raju, the Deputy Superintendent of Police, ACB, had instructed LW8 to accompany
    PW1 – complainant inside the chamber of the appellant. PW8 has accepted this fact by
    stating in the examination-in-chief that LW8 was asked to accompany PW1 and
    observe what transpires between the appellant and PW1. PW8, in his evidence,
    accepted that only PW1 entered the chamber of the appellant and LW8 waited outside
    the chamber. Even PW7 admitted in the cross-examination that when PW1 entered
    the appellant’s chamber, LW8 remained outside in the corridor. Thus, LW8 was
    supposed to be an independent witness accompanying PW1. In breach of the
    directions issued to him by PW8, he did not accompany PW1 inside the chamber of
    the appellant, and he waited outside the chamber in the corridor. The prosecution
    offered no explanation why LW8 did not accompany PW1 inside the chamber of the
    appellant at the time of the trap.
11. Therefore, PW1 is the only witness to the alleged demand and acceptance.
    According to PW1, firstly, the demand was made of Rs.3,000/- by the appellant on
    24th February 2000. Thereafter, continuously for three days, she reiterated the
    demand when he visited the appellant’s office. Lastly, the appellant made the demand
    on 29th February 2000 and 23rd March 2000. On this aspect, he was cross-examined
    in detail by the learned Senior Counsel appearing for the appellant. His version about
    the demand and acceptance is relevant which reads thus :
    “In the vicinity of office of AO the jeep, in which we went there was
    stopped and I was asked to go into the office of AO and the trap party took
    vantage positions. Accordingly, I went inside the office of AO. I wished AO. At
    that time apart from AO some other person was found in the office room of AO
    and he was talking to the AO. AO offered me a chair. After discussion with the
    AO the said other person left the room of AO. I informed AO that I brought the
    bribe amount as demanded by her and also asked her to issue the Final
    Assessment Orders. Then I took the said tainted currency notes from my shirt
    pocket and I was about to give the same to the AO and on which instead of
    taking the same amount directly by her with her hands she took out a diary from
    her table drawer, opened the diary and asked me to keep the said amount in the
    diary. Accordingly, I kept the amount in the said diary. She closed the said diary
    and again kept the 1same in her table drawer and locked the drawer and kept the
    keys in her hand bag which was hanging to her seat. She pressed the calling bell
    and a lady attender came into the room of AO, then she instructed the lady
    attender to call concerned ACTO to her along with the concerned society
    records. Accordingly, ACTO came to AO along with record. After going
    through the Ledger and Cash Book etc., AO signed on the last page of the said
    Ledger and Cash Book mentioning 26.02.2000 below her signature in the said
    register though she signed on 27.03.2000 in my presence. AO directed her
    attender to affix official rubber stamp below her signature in the Ledger and
    Cash Book and accordingly attender affixed the same. AO also signed on the
    office note of Final Assessment Orders at that time. Thereafter, I collected the
    General Ledger and Cash Book from the attender after affixing the said rubber
    stamp thereon and came out of the office of AO and relayed the pre-arranged
    signal to the trap party.” (underlines supplied)
12. Thus, PW1 did not state that the appellant reiterated her demand at the time of
    trap. His version is that on his own, he told her that he had brought the amount. What
    is material is the cross-examination on this aspect. In the cross-examination, PW1
    accepted that his version regarding the demand made by the appellant on various
    dates was an 14 improvement. The relevant part of the cross-examination of the
    appellant reads thus:
    “I did not state to ACB Inspector in section 161 Cr.P.C. statement that on the
    evening of 24.02.2000 I met the AO and that she demanded the bribe. I did
    not mention in Ex.P3 complaint that continuously for 3 days after 24.02.2000
    I met the AO and the AO reiterated her demand. I did not mention in Ex.P3
    complaint that on 29.02.2000 I approached the AO and the AO demanded
    bribe of Rs.3,000/- and that unless I pay the said bribe amount she will not
    issue final assessment orders. I did not state in my Sec.164 statement before
    the Magistrate that 13.03.2000 to 16.03.2000 I was on leave and from
    01.03.2000 to 12.03.2000, I was engaged in recovering the dues of the
    society. It is not true to suggest that I did not meet the AO continuously 3
    days i.e., on 25th, 26th and 27th of February, 2000 and that 27.02.2000 is
    Sunday. It is not true to suggest that I did not meet the AO in the evening of
    24.02.2000 and that AO did not demand any money from me. I did not state
    in my section 161 Cr.P.C. statement to Inspector of ACB that before I left the
    office of DSP on the date of trap I made a phone call enquiring about the
    availability of AO and the AO was in the office and informed me that she
    should be available in the office from 6.00 to 7.00 P.M. on that day so also in
    my Sec.164 Cr.P.C. I made such a phone call from the office of the DSP,
    ACB. I do not remember as to from which phone number I made phone call
    on that day. I cannot describe office telephone number of the AO. It is not
    true to suggest that I did not make any such phone call to AO and that she
    did not give any such reply to me. I did not state to ACB Inspector in 15 my
    161 Cr.P.C. statement or to the Magistrate in my S.164 Cr.P.C. statement
    that I went inside the office of AO and I wished AO and at that time apart
    from AO some other person was found in the office room of AO and that he
    was talking to the AO and that the AO offered me a chair and that after
    discussion with the AO the said person left the room of AO and then I
    informed the AO that I brought the bribe amount. I did not state that said
    aspects to DSP during the post trap proceedings also. (underlines supplied)
13. Thus, the version of PW1 in his examination-in-chief about the demand made by
    the appellant from time to time is an improvement. As stated earlier, LW8 did not
    enter the appellant’s chamber at the time of trap. There is no other evidence of the
    alleged demand. Thus, the evidence of PW1 about the demand for bribe by the
    appellant is not at all reliable. Hence, we conclude that the demand made by the
    appellant has not been conclusively proved.
14. PW2, Shri B.D.V. Ramakrishna had no personal knowledge about the demand.
    However, he accepted that on 15th March 2000, the said Society received a
    communication informing that the said Society need not pay any tax for the year
    1996-97. PW3 Shri L. Madhusudhan was working as Godown Incharge with the said
    Society. He stated that on 15th 16 March 2000, when he visited the appellant’s office,
    ACTO served the original notice dated 26th February 2000 in which it was mentioned
    that the Society was not liable to pay any tax. It is his version that when he met the
    appellant on the same day, she enquired whether he had brought the demanded
    amount of Rs.3,000/-. However, PW3 did not state that the appellant demanded the
    said amount for granting any favour to the said society.
15. PW 4 Ahmed Moinuddin was ACTO at the relevant time. He deposed that on 27th
    March 2000, the appellant instructed him to prepare the final assessment order, which
    was kept ready in the morning. He stated that he was called at 6 pm to the chamber of
    the appellant along with books of the said Society. At that time, PW1 was sitting
    there. He stated that the appellant subscribed her signature on a Register of the said
    Society and put the date as 26th February 2000 below it. He was not a witness to the
    alleged demand. However, in the cross-examination, he admitted that the appellant
    had served a memo dated 21st March 2000 to him alleging that he was careless in
    performing his duties.
16. Thus, this is a case where the demand of illegal gratification by the appellant was
    not proved by the prosecution. Thus, the demand which is sine quo non for
    establishing the offence under Section 7 was not established.
17. Hence, the impugned Judgments will have to be set aside. Accordingly, the appeal
    is allowed. The conviction of the appellant for the offences punishable under Sections
    7 and 13(1)(d) read with Section 13(2) of the PC Act is set aside and the appellant is
    acquitted of the charges framed against her.