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Friday, May 8, 2015

Right since the beginning the contention of the respondent had been that he was asked to pick up the currency notes by PW9 and that is how his fingers got smeared. That part of the case was elaborately considered by the trial court and it rendered a finding that his hands were subjected to test first and only thereafter PW7 had picked up the currency notes which were lying on the table on the instructions of PW9. It was never the contention that the Day Book itself had traces of Phenolphthalein powder and by handling said Day Book his fingers had got smeared. If it was so contended the investigating officer could immediately have subjected the Day Book itself to appropriate test. The evidence on record shows that the respondent accepted Rs.400/- only out of Rs.500/- offered by PW 1 as per demand and instructed that Rs.100/- be given to Viswanadham, which would negate the theory of any accidental touching of tainted notes. This part of the case and aspects concerning demand and acceptance completely stood proved. The contention, therefore, deserves to be rejected. The other contention that a person would not normally receive money by his left hand, again has no basis and is purely in the realm of surmises and conjectures. The High Court did not in any way deal with the reasons and findings recorded by the trial court while finding the respondent guilty of the offences in question. The assessment and conclusions of the High Court cannot even be termed as a possible view in the matter.

                                                              Non-reportable

                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                        CRIMINAL APPEAL NO.89 of 2009



State of Andhra Pradesh                                 …. Appellant

                                   Versus

Kesavapatnam China Swamy                     …. Respondent



                               J U D G M E N T



Uday Umesh Lalit, J.



1.    This appeal by Special Leave challenges the judgment and  order  dated
25.04.2006 of the High Court of Judicature of Andhra  Pradesh  at  Hyderabad
in Criminal Appeal No.27 of 2001 setting aside the  judgment  and  order  of
conviction dated 29.12.2000 of the  Special  Judge  for  SPE  &  ACB  Cases,
Vijayawada in CC No.4 of 1996.

2.  One P. Ramakrishna Rao i.e. PW1 wanted to start a   Kirana  and  General
Stores at Gudivada and had  submitted  an  application  on  22.05.1995  with
necessary enclosures in the office of  the  Deputy  Commercial  Tax  Officer
No.1,  Gudivada  seeking  issuance   of   registration   certificate.    The
application was forwarded to the respondent  who,  as  Assistant  Commercial
Tax Officer  No.1,  Gudivada,  District  Krishna,  was  competent  to  issue
registration certificate under the Sales Tax Act.  In  this  connection  PW1
met the respondent in his office on 16.06.1995 and requested  him  to  issue
registration certificate, at which time the  respondent  allegedly  demanded
Rs.1000/- as bribe.   PW1 then went along with PW2  K.B.  Narayana  to  meet
the respondent on 22.06.1995 and requested for issuance of the  certificate.
 On that day PW1 also furnished additional National Savings Bond in the  sum
of Rs.500/- as per directions  of  the  respondent.   The  respondent  after
accepting the same reiterated his demand.  It is alleged that on  23.06.1995
PWs1 and 2 again went to the office  of  the  respondent  and  repeated  the
request for issuance of registration certificate.  The respondent  allegedly
informed PW1 that the  registration  certificate  was  ready  and  would  be
delivered upon payment of bribe of Rs.1000/- as  demanded.   The  respondent
also instructed PW1 to produce the Day Book  duly  written  upto  24.06.1995
for affixing his signature.  When PW1 expressed  his  inability,  the  bribe
amount was reduced to Rs.500/-.  PW1 along with PW2 thereafter went  to  the
office  of  the  respondent  on  01.07.1995  and  made   the   request   for
registration certificate.  The respondent allegedly repeated his demand  and
PW1 reluctantly agreed to pay the amount.

3.    At this stage PW1 presented a report Ext.P1 on 01.07.1995 at  4.00  PM
in the office of the Anti Corruption  Bureau  to  PW8  N.  Prasad,  District
Inspector ACB, Vijayawada, who in turn submitted  it  to  PW9  DVSS  Murthy,
DSP, ACB, Vijaywada.  PW9 registered the same as FIR and decided  to  lay  a
trap.  On 05.07.1995 PW9 conducted pre-trap proceedings  (Ext  P23)  in  the
presence of PWs1, 2 and the mediators during which time five currency  notes
of Rs.100/- each produced by PW1 were treated  with  Phenolphthalein  powder
and kept in the empty shirt pocket of PW1.

4.    Thereafter on the same day at about 12.25 PM PW1 along  with  PW2  met
the respondent in his office and upon being asked  by  the  respondent,  PW1
informed the respondent that he had brought the bribe  amount  of  Rs.500/-.
On the instructions of the respondent, PW4 Attender E. Kanakam  affixed  the
rubber stamp on the registration certificate and handed  over  the  same  to
the respondent, who then instructed PW4 to go away.  Thereafter PW1  offered
to give Rs.500/-as demanded earlier. The respondent asked PW1  to  give  him
Rs.400/- only which  amount  was  so  given  by  PW1  and  received  by  the
respondent with his left hand.   The  respondent  kept  the  amount  on  the
papers lying on his  office  table.   The  respondent  then  called  one  K.
Viswanadham, Junior Assistant dealing with  registration  work  and  on  his
directions PW1 paid the balance amount of  Rs.100/-  to  said   Viswanadham,
who received the same and went back to his seat.  The respondent  thereafter
took the Day Book (Ext. P9) from PW1 and affixed his signature  putting  the
date as  23.06.1995  and  returned  the  same  to  PW1.    The  registration
certificate Ext.P8 was then delivered by the respondent to PW1

5.    PW1 thereafter came out of the office leaving PW2  inside  the  office
who kept talking with the respondent.  Requisite signal  having  been  given
by PW1, PW9 with the raiding party entered the  office  of  the  respondent.
He  conducted  appropriate  test  on  the  fingers  of  the  respondent  and
Viswanadham which turned positive.  The amount  of  Rs.400/-  was  recovered
from the office table of the respondent and Rs.100/-  from  the  almirah  in
front of the seat of Viswanadham.  The numbers of the  currency  notes  were
verified and tallied by the mediators and the post  trap  proceedings  (Ext.
P24) were reduced to writing by the mediators.

6.    After completing investigation  and  obtaining  appropriate  sanction,
charge sheet was filed against the respondent and  Viswanadham  and  charges
under Sections  7,  13(2)  read  with  13(1)(d)(ii)  of  the  Prevention  of
Corruption Act, 1988  (hereinafter  referred  to  as  the  Act)  were  famed
against  them.   In  support  of  its  case  the  prosecution  examined  ten
witnesses and marked thirty six documents.  In defence, the  respondent  and
Viswanadham filed their statements in writing.  The respondent  stated  that
he had never demanded and received the bribe from  PW1  and  that  the  trap
proceedings dated 05.07.1995 were stage  managed  at  the  instance  of  one
Hanumantha  Rao,  a  tax  consultant.   It  was  submitted  that   PW1   had
clandestinely put currency notes on the papers lying on his table  and  when
PW9 entered the office he directed the respondent to  pick  up  those  notes
and to give them to one of the officials present with him and  that  he  had
accordingly picked up said notes with his left hand.  It was submitted  that
the registration certificate of PW1 was approved  by  him  as  early  as  on
24.06.1995 and that PW1 was asked to collect  the  registration  certificate
immediately and that nothing relating to PW1  was  pending  with  him  after
24.06.1995.  Viswanadham  in  his  written  statement  stated  that  on  the
relevant date PW1 met him and informed that  the  respondent  had  sent  PW1
with instructions to give Rs.100/- to him and therefore he had accepted  the
same and kept in the open almirah.  Further he had taken the  amount  as  he
was under the impression that the respondent had sent  the  amount  for  the
purposes of buying some provisions or  other  articles,  which  he  normally
used to do for the respondent.

7.    After considering the material on record and  rival  submissions,  the
trial court rendered following findings:
(1)   No reliable evidence was produced on record nor anything was  elicited
in cross-examination of the witnesses which could  substantiate  the  theory
that the trap proceedings were stage managed at the instance  of  Hanumantha
Rao.

(2)   The evidence of PW1 and PW2 as regards the demand and  acceptance  was
completely trustworthy and reliable.

(3)   The evidence of PW1 as corroborated  by  that  of  PW2  proved  beyond
reasonable doubt that the respondent had demanded bribe amount of  Rs.1000/-
which was then reduced to Rs.500/- for issuance of registration  certificate
and that on 05.07.1995 the respondent in the presence of  PW2  had  demanded
and received Rs.400/- from PW1 and  thereafter  delivered  the  registration
certificate Ext.P8 after getting the relevant endorsement made by PW4.

(4)   PW4 in his examination-in-chief deposed that when the  endorsement  of
delivery of registration certificate was made on 05.07.1995,  PWs  1  and  2
were present and on the instructions of the  respondent  PW4  had  left  his
office.

(5)   The evidence of PW1  as  corroborated  by  that  of  PW2  proved  that
registration certificate  Ext.P8  though  prepared  on  24.06.1996  was  not
delivered  to PW1.

(6)     The evidence of PW9 as  corroborated  by  that  of  PW7,  Government
official who had acted as panch, proved that the  hands  of  the  respondent
were first  subjected  to  test  which  yielded  positive  result  and  only
thereafter on the instructions of PW9, PW7 had picked up the currency  notes
from the table top.  Thus there was  no  force  in  the  contention  of  the
respondent that PW9 had made him pick up the currency notes.


      With these findings the trial court held  that  the  case  was  proved
beyond  any  doubt  as  regards  the  respondent.   It  however  found  that
Viswanadham had not at any point of time demanded any  bribe  and  that  the
case against him  was  not  proved  at  all.   Viswanadham  was,  therefore,
acquitted of all the charges.  The respondent was convicted  under  Sections
7 and 13(1)(d)(ii) read with Section 13(2) of the Act and sentenced on  each
of the aforesaid two counts to suffer simple imprisonment for one  year  and
to pay a fine of Rs.1000/-, in default whereof  to  undergo  further  simple
imprisonment for four months  .

8.    The respondent appealed in the High Court.  It was  submitted  on  his
behalf that Phenolphthalein powder was  not  only  applied  to  the  tainted
notes but also to the Day Book, that day Day Book was not subjected  to  any
test by PW9 and therefore there was definitely a doubt  about  the  veracity
of the trap proceedings.  It was further submitted that normal  practice  is
to receive money with  right  hand  whereas  the  respondent  had  allegedly
received the amount with his left hand, which further  created  doubt.   The
High Court observed as under:
“So after carefully going through the evidence, I entertain a doubt  whether
the day book is free from phenolphthalein powder and also there is  a  doubt
whether A.1 received the amount with his left hand when the normal  practice
is to receive with his left hand.  The explanation of A.1 is that  while  he
was writing a book, the cash was kept on the table.  To  be  more  probable,
there was no  phenolphthalein  powder  struck  to  the  right  hand  of  the
accused.  At the post trap proceedings also, the D.S.P.  did  not  make  any
attempt to conduct the sodium carbonate test on the  daybook.   It  is  also
creating a doubt whether the phenolphthalein powder struck to the left  hand
fingers is that of the day book or of the tainted notes.   Therefore,  I  am
inclined to give the benefit of doubt to the accused.”

      With this view the High Court allowed the appeal  and  set  aside  the
order of conviction and sentence recorded by the trial court.

9.    The State being aggrieved has preferred the instant appeal by  special
leave.  Mr. G. Pramod Kumar, learned Advocate appearing  for  the  appellant
submitted that the theory as regards the Day Book was not even spelt out  at
the initial  stage  and  if  it  was  so  done,  it  was  possible  for  the
investigating officer to subject the Day  Book  for  appropriate  test.  The
other reason which weighed with the High Court in his submission was  purely
in the realm of conjectures.  It was further  submitted  that  none  of  the
findings as recorded by the trial court was even adverted to  and  found  to
be  incorrect.   Ms.  T.  Anamika,  learned  Advocate  appearing   for   the
respondent contended that the entire trap proceedings were stage managed  at
the instance of Hanumantha Rao  and  that  the  High  Court  was  completely
justified in entertaining doubts as expressed by it.


10.   We have gone  through  the  record  and  considered  the  submissions.
Right since the beginning the contention of the respondent had been that  he
was asked to pick up the currency notes by PW9 and that is how  his  fingers
got smeared.  That part of the case was elaborately considered by the  trial
court and it rendered a finding that his hands were subjected to test  first
and only thereafter PW7 had picked up the currency notes  which  were  lying
on the table on the instructions of PW9.  It was never the  contention  that
the Day Book itself had traces of Phenolphthalein  powder  and  by  handling
said Day Book his fingers had got smeared.   If  it  was  so  contended  the
investigating officer could immediately have subjected the Day  Book  itself
to appropriate test.  The evidence  on  record  shows  that  the  respondent
accepted Rs.400/- only out of Rs.500/- offered by PW 1  as  per  demand  and
instructed that Rs.100/- be given to Viswanadham,  which  would  negate  the
theory of any accidental touching of tainted notes. This part  of  the  case
and aspects concerning demand and acceptance completely  stood  proved.  The
contention, therefore, deserves to be rejected.  The other  contention  that
a person would not normally receive money by his left  hand,  again  has  no
basis and is purely in the realm of  surmises  and  conjectures.   The  High
Court did not in any way deal with the reasons and findings recorded by  the
trial  court  while  finding  the  respondent  guilty  of  the  offences  in
question.  The assessment and conclusions of the High Court cannot  even  be
termed as a possible view in the matter.



11.   We, therefore, set aside the judgment and order  passed  by  the  High
Court.  The appeal is allowed and the judgment of  conviction  and  sentence
as recorded by the trial court against the  respondent  is  restored.    The
respondent shall be taken into custody forthwith to undergo the sentence  as
awarded.


                                  ……………………….J
                                          (Pinaki Chandra Ghose)



                                                                 ……………………….J
                      (Uday Umesh Lalit)
New Delhi,
May 06, 2015

ITEM NO.1B               COURT NO.11               SECTION II
(for Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                      Criminal Appeal  No(s).  89/2009

STATE OF ANDHRA PRADESH                            Appellant(s)

                                VERSUS

KESAVAPATNAM CHINA SWAMY                           Respondent(s)



Date : 06/05/2015      This appeal was called on for pronouncement of
            judgment today.

For Appellant(s) Mr. Guntur Pramod Kumar, Adv.
                       Mr. Guntur Prabhakar, Adv.
                       Mr. D. Mahesh Babu, Adv.


For Respondent(s)      Ms. T. Anamika, Adv.


      Hon'ble Mr. Justice Uday Umesh  Lalit  pronounced  the  non-reportable
judgment of the Bench comprising Hon'ble Mr. Justice  Pinaki  Chandra  Ghose
and His Lordship.
      The appeal is allowed and the judgment of conviction and  sentence  as
recorded by the trial  court  against  the  respondent  is  restored.    The
respondent shall be taken into custody forthwith to undergo the sentence  as
awarded in terms of the signed non-reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed non-reportable judgment is placed on the file)

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