THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRIMINAL APPEAL No.1301 of 2003

BETWEEEN:

Kompella Panduranga Vithal

… Accused/Appellant

AND

State rep. by District Inspector, ACB, Eluru, Range, Eluru … Respondent/Complainant

CRIMINAL APPEAL No.1303 of 2003

BETWEEEN:

Khambhammettu Harinath (A1)

… Appellant

AND

State rep. by District Inspector, ACB, Eluru, Range, Eluru

… Respondent/Complainant

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRIMINAL APPEAL No.1301 of 2003

AND

CRIMINAL APPEAL No.1303 of 2003

COMMON JUDGMENT:

These two appeals are filed by A1 and A2 respectively against judgment dated 06.12.2003 passed by the Special Judge for SPE and ACB cases, Vijayawada in CC.No.19 of 1994, by which A1 and A2 were convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 (in short, the Act) read with Section 34 I.P.C. and were sentenced to rigorous imprisonment for one year and find of Rs.1,000/-each; and they were also convicted for the offence under Section 13(1)(d) (ii)/13(2) of the Act read with Section 34 I.P.C. and were sentenced to rigorous imprisonment for one year and fine of Rs.1,000/- each.

2. During the relevant period in the year 1993, A1 was working as Deputy Commercial Tax Officer, Ganapavaram and A2 was working as Junior Assistant in the same office. The defacto complainant/victim wanted to open motorcycle spare parts shop at Bhuvanapalli of West Godavari District under the name and style of Ganesh Enterprises. It is alleged that for the purpose of obtaining a registration certificate under the Commercial Tax Laws, PW1 approached A1 and A2 on 06.12.1993 in their office and that he got the application filled up through PW5 and submitted the application along with necessary documents and that PW1 again approached A1 and A2 in their office on 24.12.12993 for registration certificate and

that A2 demanded an amount of Rs.500/- as bribe for himself and Rs.1,000/- as bribe for A1 and that when PW1 approached A1, he also made the said demand and that when PW1 pleaded his inability to pay such amount, A1 reduced his demand to Rs.750/- as bribe and that on the same day, PW1 paid RS.500/ to A1 towards part of bribe and that A1 asked PW1 to bring balance of bribe of Rs.250/- for himself and Rs.500/- for A2 by 30.12.1993. In the meanwhile, PW1 approached PW7, who is the Deputy Superintendent of Police, Anti Corruption Bureau, Eluru Range on 29.12.1993 and gave Ex.P18 report in writing. PW7 arranged trap for A1 and A2 on 30.12.1993. PW3 is one of the mediators for Ex.P21 pre-trap proceedings and Ex.P26 posttrap proceedings. PW3 was then working as Assistant Executive Engineer, Roads and Buildings at Eluru. Along with PW3, another mediator also figured as such in pre-trap and posttrap proceedings. On 30.12.1993, it is alleged that PW1 went to office of A1 at Ganapavaram and met A1 in his room and that on demand, PW1 paid balance of bribe of Rs.250/- to him which was tainted with phenolphthalein powder during pre-trap proceedings and that PW1 also paid Rs.500/- which is also tainted amount to A2 outside the room of A1. It is alleged that after payment, PW1 gave signal and thereupon PW7 along with his officers and staff and mediators rushed to the office of the accused and seized MO.3 tainted cash of Rs.250/- from the shirt

pocket of A1 and also seized MO.8 tainted cash of Rs.500/- from A2 and that when tested with Sodium Carbonate solution, hands of A1 and A2 and inner lining of the pockets of A1 and A2 turned pink. After investigation and after obtaining necessary sanction as per Exs.P29 and P30, G.O.Rt.Nos.1531 and 1532 of Revenue (CT-I) Department of the Government of Andhra Pradesh, Hyderabad, charge sheet was laid by the department in the lower Court. The lower Court after full fledged trial, found A1 and A2 guilty of the charges and passed the above said convictions and sentences against them. During trial, A1 and A2 pleaded that they did not receive MOs.3 and 8 amounts towards bribe from PW1 and that PW1 paid MO.3 cash of Rs.250/- to A1 towards profession tax payable by him and that PW1 paid MO.8 cash of Rs.500/- to A2 towards compounding fees for starting his business even prior to obtaining registration certificate from the department. The lower Court disbelieved the versions of the accused.

3. In this appeal, it is contended by the senior counsel appearing for both the appellants that charging the accused together by the lower Court with the aid of Section 34 I.P.C. and convicting both the accused together with the aid of Section 34 I.P.C. is not permissible in law. In fact, the sanction orders covered by Exs.P29 and P30 were also issued by the Government separately for prosecuting A1 and A2 for offences

under Sections 7 and 13(1)(d)(ii)/13(2) of the Act read with Section 34 I.P.C. It is contended by the senior counsel that Prevention of Corruption Act, 1988 is a self-contained enactment and invoking Section 34 from the Indian Penal Code for prosecuting two persons together under the caption of 'common intention' is not permissible in law. It is true that the Prevention of Corruption Act, 1988 is a self-contained enactment. Apart from prescribing offences under chapter III of the said Act, the same chapter deals with offences relating to abetment as well as attempt to commit those offences. In this case, as per the prosecution version, two specific amounts were demanded by A1 and A2 for each of them separately and those two specific demands of A1 and A2 were stated to have been complied with by PW1 independently by paying MO.3 cash to A1 and MO.8 cash to A2. In these circumstances, the question of invoking Section 34 I.P.C. for the offences under Section 7 and 13(1) (d)/13(2) of the Act may not arise at all. It is further contended for the appellants that the lower Court should have framed two independent charges against A1 and A2 and should have tried them. No doubt, Section 12 of the Act prescribes punishment for abetment of offences defined under Sections 7 or Section 11 of the Act; and Section 15 of the Act prescribes punishment for attempt of committing offences under certain sub-sections of Section 13 of the Act; and also Section 14 of the Act makes it a specific offence in case a person is habituated in committing offences punishable under Sections 8, 9 and 12 of the Act. The question of prosecuting two different persons/public servants taking the aid of Section 34 I.P.C. is not recognized by the Act.

At any rate, Section 34 I.P.C. is only an enabling provision and is not a substantive provision prescribing punishment. When there are two public servants in this case like A1 and A2 who are said to have demanded separate bribes for each of them from PW1, the question of prosecuting both of them and trying both of them and convicting both of them with the aid of Section 34 I.P.C. may not arise.

4. Sections 464 and 465 Cr.P.C. deal with the situations where defects in framing charges and also in finding of guilt or passing of sentence in case there are any errors or irregularities. The said provisions read as follows:

"464. Effect of omission to frame, or absence of, or error incharge: (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charges, unless in the opinion of the Court of appeal confirmation or revision a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

• (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;
• (b) in the case of an error, omission or

irregularity in the charge direct a new trial to be held upon a charge framed in whatever manner it thinks fit;

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

"465. Finding or sentence when reversible by reason of error, omission or irregularity: (1) Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error or Irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

5. Mere error in framing of charges or other errors or irregularities are not going to vitiate finding of guilt and sentence passed in that particular case, unless such errors occasioned failure of justice. Even if there are any errors in framing of charges which resulted in failure of justice, then the finding of

guilt or the sentence is not liable to be set- aside ordering acquittal of the accused. In such a case of failure of justice, the appellate Court may order proper charge to be framed and tried afresh, as pointed out in Sub-Section 2 of Section 464 Cr.P.C. In my opinion, the case on hand does not warrant even the procedure contemplated under Section 464(2) Cr.P.C. since the appellants could not point out any failure of justice because of framing of two joint charges against A1 and A2 and trying them with the aid of Section 34 I,P.C. Even if Section 34 I,P.C. is deleted from both the charges, both the charges stand independently against A1 and A2 put together. Since in this case, it is alleged that A1 and A2 demanded bribe from PW1 for the sake of issue of registration certificate for his business, even though the amounts meant to be paid towards bribe to each of them are different, since both A1 and A2 are stated to have demanded different bribes together, framing of single charge either under section 7 of the Act or under Section 13(1)(d) (ii)/13(2) of the Act against A1 and A2 is not in any way erroneous or defective. According to the prosecution case and evidence of PW1, not only A1 but also A2 demanded different rates of bribe for himself and for the other accused.

6. In this case, there is no dispute at all about PW1 paying MO.3 cash of Rs.250/- to A1 on 30.12.1993 and MO.8 cash of Rs.500/- to A2 on the same day and PW7 who is the trap laying officer seizing those amounts from the respective accused persons under the cover of post-trap proceedings in

the presence of two mediators including PW3. In Ex.P26 post trap proceedings, it was noted that when PW7 asked A1and A2 after hearing the version of PW1 to say anything, A1 and A2 admitted about the demand and acceptance of bribe from PW1 to do a favour for issuing registration certificate in favour of Ganesh enterprises Bhuvanapalli. During post-trap proceedings, A1 and A2 did not offer any spontaneous explanations for possession of Mos.3 and 8 respectively with them. But, according to the appellants, they gave spot explanation to PW7 to the effect that A1 received MO.3 cash towards profession tax payable by PW.1 and A2 received MO.8 cash of Rs.500/- towards compounding fees and that the said explanations given by A1 and A2 during post-trap proceedings were not incorporated in Ex.P26. It is stated that when PW7 called for written explanation of the accused after the trap, both A1 and A2 submitted written explanations setting out the above defenses. The department is stated to have rejected the explanations of A1 and A2 and recommended to the Government for sanction for prosecution. Even though the accused failed to offer spot explanation or spontaneous explanation to the trap laying officer and the mediators about his possession of the tainted cash, the accused is not prevented from giving explanation for the same, at a future point of time or even during the course of trial and that in case the explanation

offered by the accused at a subsequent stage is found probable, reasonable and acceptable, it is open to the Court to accept the same. No doubt, Section 20 of the Act enacts presumption in favour of the prosecution in any trial of offence punishable under Section 7 of the Act that the accused accepted or obtained any gratification other than legal remuneration, and the accused accepted or obtained the same as a motive or reward contemplated under Section 7 of the Act. The said presumption under Section 20 of the Act is a rebuttable presumption.

7. It is contented for the appellants that PW1 in cross examination stated that he has not visited the office of DCTO prior to payment of bribe amount to A1 and A2 or subsequent to his examination by PW7 on 30.12.1993. From this, it is contended that evidence of PW1 about he meeting A1 and A2 on 06.12.1993 and 24.12.1993 is false. It is evidence of PW1 in examination-in-chief that he went to commercial tax office on 06.12.1993 and met A2 at the office and that he also met A1 and that he requested both of them to inform the procedure for obtaining registration certificate to run his shop and that they asked him to approach PW.5 for knowing the procedure and that he met PW.5 and got the application for registration certificate filled up and that PW.5 asked him to procure the necessary documents. He further says that he procured all the documents and went to the same office on 24.12.1993 and presented his application in Form-D as per Ex.P1 along with the enclosures Exs. P2 to P17. It is evidence of PW1 that on 24.12.1993, he

met A2 and informed him about he bringing all requisite papers for issue of registration certificate in his favour and that A2 demanded Rs.500/- as bribe for himself and Rs.1,000/- as bribe for A1 for issue of registration certificate and that when he informed A2 about his inability to pay such huge amount, A2 asked him to approach A1 and to request him and that when he went to A1's room, A2 also followed him and that when he informed A1 about A2 demanding Rs.1,500/- for issue of registration certificate and about his inability to pay the same, A1 asked him to pay Rs.750/- for himself and Rs.500/- to A2 for issue of the said certificate and that he agreed to pay the said sums of Rs.750/- ad Rs.500/-. He further says that A1 enquired as to what amount PW1 was having in his possession and that when PW1 was having Rs.500/- with him, A1 asked him to pay the said amount and that he paid the said amount to A1 and that A1 informed that he has to pay a balance of Rs.250/- to himself and Rs.500/- to A2 on or before 30.12.1993 and that A2 promised to process the file after he paid Rs.500/- to him. In view of the above evidence of PW1, his statement in the cross examination that he had not visited the office of DCTO prior to payment of bribe amount to A1 and A2 or subsequent to his examination by PW.7 on 30.12.1993, becomes out of context. Ex.P1 application along with Exs.P2 to P17 enclosures were seized by PW7 on 30.12.1993. It is nobody's case that Ex.P1 application along with Exs.P2 to P17 was handed over in the office of the accused on 30.12.1993 itself. Ex.P2 challan for Rs.100/- was paid by PW1 on 24.12.1993 itself. Exs.P4 and P5 NSCs (National Saving Certificates) enclosed with Ex.P1 were

purchased by PW1 prior to 24.12.1993. There is no cross examination of PW1 to the effect that Ex.P1 application along with its enclosures Exs. P2 to P17 was not submitted in the office of the accused on 24.12.1993. In that view of the matter, the above stray sentence in cross-examination of PW1 out of context, cannot demolish PW1's evidence and cannot rebut the presumption under Section 20 of the Act. It is evidence of PW1 in cross- examination that the accused were sending persons everyday demanding the said amount from the 24 th onwards. It was also stated so in Ex.P19 statement of PW1 recorded by the Magistrate under Section 164 Cr.P.C. It is contended that the said version was not disclosed by PW.1 in Ex.P18 First Information Report given to PW.7. In Ex.P18, PW1 has categorically stated that on 24.12.1993 both A1 and A2 demanded him the bribe amount. It is not inconsistent with the contents of statement recorded by the Magistrate under Section 164 Cr.P.C. Therefore, I have no doubt in my mind to agree with the lower Court that A1 and A2 demanded the bribe amounts on 24.12.1993.

8. The accused summoned receipt book containing Ex.X3 receipt from the office of Deputy Commercial Tax Officer, Ganapavaram where A1 and A2 worked. Ex.X3 counter foil of the receipt dated 30.12.1993 shows that an amount of Rs.250/ was received on 30.12.1993 towards profession tax for the year 1993-94 from PW1, who is proprietor of Ganesh enterprises. The lower Court did not accept Ex.X3 on the ground that it was

subsequently prepared. As pointed out earlier, there was no spontaneous explanation given by A1 with regard to his possession of tainted cash of Rs.250/- On the other hand, Ex.P26 reads that he received the said amount towards bribe as per his demand for doing official favour of giving registration certificate to PW1. During Ex.P26 proceedings, PW7 verified official cash available in the office of the accused and he found Rs.10,705/- in Godrej almyrah located in the office room of A1. It is contended that having noticed the said official cash, PW7 did not initial last page in the receipt book in order to prevent any preparation of further receipts thereafter. In case A1 gave explanation at the time of trap that he received Rs.250/- from PW1 towards profession tax payable by him, then PW7 would have been in a position to forestall any future manipulation of records in that office by initialing on the last receipt contained in the receipt book. It may be noted that receipt No.852155 relating to PW1 is the last receipt on 30.12.1993. The next receipt bearing No.852156 is dated 05.01.1994. It may be further noted that the total abstract relating to official cash of Rs.10,705/- was noted on the back of previous receipt bearing No.852154. It shows that receipt No.852154 is the last receipt on 30.12.1993 by 31.12.1993 and that Ex.X3 receipt was prepared subsequent to closure of the abstract for 31.12.1993 and that Ex.X3 was prepared subsequently on or before

05.01.1994 and after 31.12.1993.

9. PW2 is the Junior Assistant in the same office of the accused. He turned hostile to the prosecution. In crossexamination by the defense counsel, he deposed that he was dealing with the receipt of profession tax in DCTO office, Ganapavaram at that time and that he collected profession tax of Rs.250/- from all the applicants on 30.12.1993 and DCTO signed on the receipts prepared by him and that he collected Rs.250/- towards profession tax from PW1 on 30.12.1993. Immediately he adds that he received Rs.250/- mentioned in the receipt No.852155 from A1 and not directly from PW1. The amount of Rs.250/- collected from PW1 by A1 as per MO.3 was seized by PW7 under Ex.P26. Therefore, the question of A1 handing over the said amount by A1 to PW2 did not arise at all. When PW2 was in-charge of collection of profession tax in the office of the accused, it was not the business of A1 to collect the same from PW1. It is contended that duties are assigned to the staff members with regard to collection of various amounts from the traders and ultimately the amounts so collected will be kept in custody of A1 in the almyrah located in A1's office room. If A1 collected the profession tax from PW1, it is not known why he did not collect the alleged compounding fees of Rs.500/- from PW1 and why A2 is stated to have collected the alleged compounding fee of Rs.500/- from PW1. There is no receipt for collection of compounding fees of Rs.500/- by A2 in the same manner as Ex.X3. The lower Court did not accept the version of the accused to the effect that A2 collected compounding fees

from PW1 because there is no evidence of PW1 commencing the business even though he opened his shop on 08.12.1993. Assuming for a moment for the sake of argument that there was not only opening of the shop on 08.02.1993, but also commencement of business by PW1 in his shop on the same day, it is not as if there was any inspection made by A1 or his staff and booking of a case against PW1 to the effect that he commenced the business before obtaining registration certificate. In the absence of booking any case against PW1, the question of collection of compounding fees for starting the business without registration certificate will not arise at all. In view of the above discussion, this Court has no hesitation to conclude that the explanations offered by A1 and A2 with regard to their possession of tainted cash of Rs.250/- and Rs.500/ respectively is neither probable nor reasonable nor acceptable. The accused could not rebut the presumption contained under Section 20 of the Act with regard to the demand and acceptance of illegal gratification by them from PW1.

10. Therefore, for all the above reasons, I have absolutely no doubt in my mind that A1 and A2 demanded and accepted gratification other than the legal remuneration from PW1 for doing official favour of granting registration certificate to the business started by PW1 and that it amounts to misconduct on the part of A1 and A2, who are public servants. The lower Court rightly found both A1 and A2 guilty of the two charges.

11. In the result, both the appeals are dismissed.

_____________________________ SAMUDRALA GOVINDARAJULU, J

Dated: 08.03.2011 ysk

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRIMINAL APPEAL No.1301 of 2003

AND

CRIMINAL APPEAL No.1303 of 2003

DATED: 08.03.2011

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