State of A. P. Vs. R. Jeevaratnam
EmailAppeal: Criminal Appeal No. 1057 of 1998
(From the Judgment and Order dated 10.12.1997 of the Andhra Pradesh High Court in Criminal Appeal No. 54 of 1995)
(From the Judgment and Order dated 10.12.1997 of the Andhra Pradesh High Court in Criminal Appeal No. 54 of 1995)
Petitioner: State of A. P.
Respondent: R. Jeevaratnam
Apeal: Criminal Appeal No. 1057 of 1998
(From the Judgment and Order dated 10.12.1997 of the Andhra Pradesh High Court in Criminal Appeal No. 54 of 1995)
(From the Judgment and Order dated 10.12.1997 of the Andhra Pradesh High Court in Criminal Appeal No. 54 of 1995)
Judges: S. N. VARIAVA & ARIJIT PASAYAT, JJ.
Date of Judgment: Jul 30, 2004
Appearances:
Mr. A.D.N Rao and B.V. Balram Das, Advocates for the Appellant.
Mr. Mahendra Anand, Senior Advocate, Mr. S. Sadasiva Reddy and Mrs. S.Usha Reddy, Advocates with him for the Respondent.
Mr. Mahendra Anand, Senior Advocate, Mr. S. Sadasiva Reddy and Mrs. S.Usha Reddy, Advocates with him for the Respondent.
Head Note:
CRIMINAL LAWS
Prevention of Corruption Act, 1988
Sections 7, 13(1)(d), 13(2) and 20(1) – Evidence Act, 1872 – Section 3 – Demand and acceptance of bribe – Evidence – Appreciation – Demand for bribe made on 23.12.91 for favouring tender – Though tender found to be cleared on 23.11.91, demand repeated on 31.12.91 – Accused arriving at hotel room, booked by complainant – Accused asking for money in the presence of panch witness – Money transferred and put in briefcase at the instance of accused – Raiding party signalled and while leaving, accused caught – Money recovered. Held that demand and acceptance was proved . Statutory presumption also arose as money was found in the possession of accused. C. Uma Maheswara Rao’s case (JT 2004 (4) SC 167) referred and followed. (Paras 6-8)
Prevention of Corruption Act, 1988
Sections 7, 13(1)(d), 13(2) and 20(1) – Evidence Act, 1872 – Section 3 – Demand and acceptance of bribe – Evidence – Appreciation – Demand for bribe made on 23.12.91 for favouring tender – Though tender found to be cleared on 23.11.91, demand repeated on 31.12.91 – Accused arriving at hotel room, booked by complainant – Accused asking for money in the presence of panch witness – Money transferred and put in briefcase at the instance of accused – Raiding party signalled and while leaving, accused caught – Money recovered. Held that demand and acceptance was proved . Statutory presumption also arose as money was found in the possession of accused. C. Uma Maheswara Rao’s case (JT 2004 (4) SC 167) referred and followed. (Paras 6-8)
Prevention of Corruption Act, 1988
Sections 7,13(1) (d), 26 – Demand and acceptance of bribe – Presumption regarding proof of demand – If essential for offence under Section 13(1) (d) – Accused approaching complainant in hotel room – No explanation of his presence in room – Explanation of booking table for eve of 31st December, not proved – Evidence showing accused having demanded the amount – Evidence not shaken in cross examination – Panch witness totally independent. Held that demand was proved. Case of Subash Parbat Sonvane (JT 2002 (4) SC 348) referred. (Paras 9-11)
Cases Reffered:
1. State of Andhra Pradesh v. C. Uma Maheswara Rao (JT 2004 (4) SC 167) (Para 5)
2. Subash Parbat Sonvane v. State of Gujarat (JT 2002 (4) SC 348) (Para 9)
3. Raghubir Singh v. State of Punjab ((1974) 4 SCC 560) (Para 5)
2. Subash Parbat Sonvane v. State of Gujarat (JT 2002 (4) SC 348) (Para 9)
3. Raghubir Singh v. State of Punjab ((1974) 4 SCC 560) (Para 5)
JUDGEMENT:
S. N. VARIAVA, J.
1. This appeal is against the judgment dated 10th December, 1997 of the Andhra Pradesh High Court.
2. Briefly stated the facts are as follows:
The respondent was, at the relevant time, functioning as the Secretary of Visakhapatnam Port Trust. He was also a member of the Tender Committee. He was also officiating as the Secretary of the Board of Trustees of Visakhapatnam Port Trust. The Visakhapatnam Port Trust had floated a tender, in response to which one M/s Ramesh Chandra & Company had submitted a quotation for Rs. 1,33,84,702.80. The tender of M/s. Ramesh Chandra & Company was the lowest. The complainant one Mr. G. Subrahmanyam was the Manager and General Power of Attorney holder of M/s. Ramesh Chandra & Company. According to the prosecution, on 23rd December, 1991 the complainant was called to the house of the respondent. He was there informed that there were many complications in the tender and that in order to clear those complications a sum of Rs. 1,00,000/- would have to be paid to the respondent as bribe. According to the prosecution, the complainant expressed financial disability in paying the amount and was told by the respondent that the amount could be paid in 5 installments. According to the prosecution, the respondent told the complainant that if the amount was not paid the file would not be cleared. According to the prosecution, on 30th December, 1991, the complainant again met the respondent when he was told that at least a sum of Rs. 10,000/- had to be paid as an advance. The said amount of Rs. 10,000/- was to be paid on 31st December, 1991 in Hotel Apsara in Visakhapatnam. The complainant then reported the matter to the Central Bureau of Investigation, who laid a trap. The respondent was caught coming out of the hotel room with marked currency totalling Rs. 10,000/- in a briefcase which was carried by the respondent.
3. The respondent was therefore prosecuted under sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The prosecution examined 14 witnesses including the complainant and one Mr. M. Veerabhadrarao who was examined as PW2. PW2 was an absolutely independent witness who had acted as a panch witness and who knew neither the complainant nor the respondent. PW2 had no enmity with either party and it is not even alleged that he was trying to favour either party.
4. On the evidence before him, the special judge convicted the accused and sentenced him to R.I. for two years on each count and to pay a fine of Rs. 3,000/- on each count. The appeal filed by the respondent has been allowed by the High Court by the impugned judgment. The High Court concludes, on the basis of evidence, that by 23rd November, 1991 the file had already been cleared to the knowledge of the complainant. The High Court concludes that as the file was already cleared the question of doing favour or not doing favour did not arise. The High Court concludes that it was improbable that the respondent would have demanded Rs. 1,00,000/-. The High Court concludes that the respondent’s version that the money must have been put into his briefcase when he had gone to the toilet was probable. The High Court concludes that the evidence of PWs. 1 and 2 does not establish that any demand was made. On this basis the High Court acquits the respondent even of the offence under section 7 of the Prevention of Corruption Act.
5. At this stage, it must be mentioned that on a complaint made by the same complainant, in respect of another incident, another officer of Visakhapatnam Port Trust had also been prosecuted. In that case also the trial court had found the officer guilty but the High Court had acquitted her. This Court, in its judgment in the case of State of Andhra Pradesh v. C. Uma Maheswara Rao1, set aside the judgment of the High Court and convicted the accused in that case. While so doing, this Court noticed section 20(1) of the Prevention of Corruption Act which reads as follows:
“20.(1) Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.”
This Court then analysed the law on subject and held that the term “shall be presumed” in section 20(1) showed that courts had to compulsory draw a presumption. It held that the only condition for drawing the presumption is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. It is held that the condition need not be satisfied only through direct evidence. It is held that proof did not mean direct proof as that would be impossible but the proof must be one which would induce a reasonable man to come to a particular conclusion. It was held that once it is proved that gratification has been accepted the presumption automatically arises. This Court cited with approval the observations of a three judge bench in the case of Raghubir Singh v. State of Punjab1 that the very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is “res ipsa loquitur”. We are in full agreement with the observations made in that judgment.
6. We now set out briefly the evidence in the matter. PW 1, i.e., the complainant, has deposed about the demand made on 23rd December, 1991 and it being repeated on 30th December, 1991 when the respondent asked him to pay at least Rs. 10,000/- on 31st December, 1991 in a hotel room in Hotel Apsara. He has deposed that he made a complaint to CBI and that CBI arranged the trap. The complainant deposed that he had booked the room and he and PW 2 went into the room no. 202. He deposed that on receiving a call from the reception he went and brought the respondent, who came to Hotel Apsara, to room no. 202 where PW 2 was waiting. He deposed that he introduced PW 2 as the Group Financial Manager who had come from Bombay. PW 1 deposed that the respondent then asked whether he had brought the money demanded as a bribe. He deposed that he opened a rexine bag and offered the marked currency amounting to Rs. 10,000/- but that the respondent asked him to put the money into the briefcase and, therefore, he put the amount into the briefcase. PW 1 deposed that thereafter the respondent took the briefcase and was about to leave the room when he gave the prearranged signal and CBI nabbed the respondent. In cross-examination this version of PW 1 could not be shaken at all. This evidence clearly established demand and acceptance of money.
7. This version is supported by the deposition of PW 2. PW 2 was at that time the Assistant Director of Post Office at Visakhapatnam. He was asked by his superior officer to go to the CBI office. He did not know the complainant or the respondent. He deposed that PW 1, himself and the CBI officers along with marked currency went to room no. 202 in Hotel Apsara. He deposed that a phone call was received from the reception and PW 1 went out and brought the respondent into the room. He deposed that he was introduced to the respondent as a Group Finance Manager of the company. He deposed that PW 1 mentioned that as agreed earlier money had been brought for payment of the first installment and that the rest of the amount would be paid afterwards. He deposed that PW 1 asked the respondent to clear the file. He deposed that the respondent thereupon assured PW 1 not to worry about the file and that he (the respondent) would see to it that the file is cleared within one month. PW 2 deposed that PW1 offered the money to the respondent, but the respondent asked him to place the money into his briefcase. He deposed that PW1 therefore placed the money into the briefcase and the respondent then picked up the briefcase and was going out of the room when he was apprehended pursuant to a prearranged signal.
8. The respondent was thus caught red-handed with the marked money in a briefcase carried by him. The presumption under section 20(1) thus arose. The High Court unfortunately overlooks this aspect.
9. Faced with this situation it was submitted by Mr. Anand, on behalf of the respondent, that the presumption under section 20 does not arise in a case under section 13(1)(d) of the Prevention of Corruption Act. He submitted that for an offence under section 13(1)(d) the demand had also to be proved. In support of his submission he relied upon the case of Subash Parbat Sonvane v. State of Gujarat1.
10. This submission overlooks the fact that the respondent had been accused of an offence under section 7 also. His explanation that the money must have been put into his briefcase when he had gone to the bathroom is unbelievable. Both PWs. 1 and 2 have denied that the respondent went to the bathroom. There is no explanation worth its name as to why the respondent had gone into the hotel room. Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by the respondent. Thus it was proved that an offence under section 7 of the Prevention of Corruption Act had been committed.
11. Even otherwise, in our view, the High Court was entirely wrong in coming to a conclusion that there was no proof of demand. The evidence of PWs. 1 and 2, to the effect, that when the respondent came into the room he was told that PW2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. On this evidence which has not been shaken in cross-examination, in our view, the offence under section 13(1)(d) read with section 13(2) had also been made out. The High Court erred in acquitting the respondent merely on the basis of conjectures and surmises.
12. In this view of the matter, we set aside the judgment of the High Court and convict the respondent under section 7 and section 13(1)(d) read with 13(2) of the Prevention of Corruption Act. In our view, the ends of justice would be met, by sentencing the accused under both the counts to one year’s rigorous imprisonment. The fine and default stipulations will be as stipulated by the trial court.
13. The appeal is allowed to the extent indicated above. The respondent is directed to surrender to serve out the remaining sentence.
1. This appeal is against the judgment dated 10th December, 1997 of the Andhra Pradesh High Court.
2. Briefly stated the facts are as follows:
The respondent was, at the relevant time, functioning as the Secretary of Visakhapatnam Port Trust. He was also a member of the Tender Committee. He was also officiating as the Secretary of the Board of Trustees of Visakhapatnam Port Trust. The Visakhapatnam Port Trust had floated a tender, in response to which one M/s Ramesh Chandra & Company had submitted a quotation for Rs. 1,33,84,702.80. The tender of M/s. Ramesh Chandra & Company was the lowest. The complainant one Mr. G. Subrahmanyam was the Manager and General Power of Attorney holder of M/s. Ramesh Chandra & Company. According to the prosecution, on 23rd December, 1991 the complainant was called to the house of the respondent. He was there informed that there were many complications in the tender and that in order to clear those complications a sum of Rs. 1,00,000/- would have to be paid to the respondent as bribe. According to the prosecution, the complainant expressed financial disability in paying the amount and was told by the respondent that the amount could be paid in 5 installments. According to the prosecution, the respondent told the complainant that if the amount was not paid the file would not be cleared. According to the prosecution, on 30th December, 1991, the complainant again met the respondent when he was told that at least a sum of Rs. 10,000/- had to be paid as an advance. The said amount of Rs. 10,000/- was to be paid on 31st December, 1991 in Hotel Apsara in Visakhapatnam. The complainant then reported the matter to the Central Bureau of Investigation, who laid a trap. The respondent was caught coming out of the hotel room with marked currency totalling Rs. 10,000/- in a briefcase which was carried by the respondent.
3. The respondent was therefore prosecuted under sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The prosecution examined 14 witnesses including the complainant and one Mr. M. Veerabhadrarao who was examined as PW2. PW2 was an absolutely independent witness who had acted as a panch witness and who knew neither the complainant nor the respondent. PW2 had no enmity with either party and it is not even alleged that he was trying to favour either party.
4. On the evidence before him, the special judge convicted the accused and sentenced him to R.I. for two years on each count and to pay a fine of Rs. 3,000/- on each count. The appeal filed by the respondent has been allowed by the High Court by the impugned judgment. The High Court concludes, on the basis of evidence, that by 23rd November, 1991 the file had already been cleared to the knowledge of the complainant. The High Court concludes that as the file was already cleared the question of doing favour or not doing favour did not arise. The High Court concludes that it was improbable that the respondent would have demanded Rs. 1,00,000/-. The High Court concludes that the respondent’s version that the money must have been put into his briefcase when he had gone to the toilet was probable. The High Court concludes that the evidence of PWs. 1 and 2 does not establish that any demand was made. On this basis the High Court acquits the respondent even of the offence under section 7 of the Prevention of Corruption Act.
5. At this stage, it must be mentioned that on a complaint made by the same complainant, in respect of another incident, another officer of Visakhapatnam Port Trust had also been prosecuted. In that case also the trial court had found the officer guilty but the High Court had acquitted her. This Court, in its judgment in the case of State of Andhra Pradesh v. C. Uma Maheswara Rao1, set aside the judgment of the High Court and convicted the accused in that case. While so doing, this Court noticed section 20(1) of the Prevention of Corruption Act which reads as follows:
“20.(1) Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.”
This Court then analysed the law on subject and held that the term “shall be presumed” in section 20(1) showed that courts had to compulsory draw a presumption. It held that the only condition for drawing the presumption is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. It is held that the condition need not be satisfied only through direct evidence. It is held that proof did not mean direct proof as that would be impossible but the proof must be one which would induce a reasonable man to come to a particular conclusion. It was held that once it is proved that gratification has been accepted the presumption automatically arises. This Court cited with approval the observations of a three judge bench in the case of Raghubir Singh v. State of Punjab1 that the very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is “res ipsa loquitur”. We are in full agreement with the observations made in that judgment.
6. We now set out briefly the evidence in the matter. PW 1, i.e., the complainant, has deposed about the demand made on 23rd December, 1991 and it being repeated on 30th December, 1991 when the respondent asked him to pay at least Rs. 10,000/- on 31st December, 1991 in a hotel room in Hotel Apsara. He has deposed that he made a complaint to CBI and that CBI arranged the trap. The complainant deposed that he had booked the room and he and PW 2 went into the room no. 202. He deposed that on receiving a call from the reception he went and brought the respondent, who came to Hotel Apsara, to room no. 202 where PW 2 was waiting. He deposed that he introduced PW 2 as the Group Financial Manager who had come from Bombay. PW 1 deposed that the respondent then asked whether he had brought the money demanded as a bribe. He deposed that he opened a rexine bag and offered the marked currency amounting to Rs. 10,000/- but that the respondent asked him to put the money into the briefcase and, therefore, he put the amount into the briefcase. PW 1 deposed that thereafter the respondent took the briefcase and was about to leave the room when he gave the prearranged signal and CBI nabbed the respondent. In cross-examination this version of PW 1 could not be shaken at all. This evidence clearly established demand and acceptance of money.
7. This version is supported by the deposition of PW 2. PW 2 was at that time the Assistant Director of Post Office at Visakhapatnam. He was asked by his superior officer to go to the CBI office. He did not know the complainant or the respondent. He deposed that PW 1, himself and the CBI officers along with marked currency went to room no. 202 in Hotel Apsara. He deposed that a phone call was received from the reception and PW 1 went out and brought the respondent into the room. He deposed that he was introduced to the respondent as a Group Finance Manager of the company. He deposed that PW 1 mentioned that as agreed earlier money had been brought for payment of the first installment and that the rest of the amount would be paid afterwards. He deposed that PW 1 asked the respondent to clear the file. He deposed that the respondent thereupon assured PW 1 not to worry about the file and that he (the respondent) would see to it that the file is cleared within one month. PW 2 deposed that PW1 offered the money to the respondent, but the respondent asked him to place the money into his briefcase. He deposed that PW1 therefore placed the money into the briefcase and the respondent then picked up the briefcase and was going out of the room when he was apprehended pursuant to a prearranged signal.
8. The respondent was thus caught red-handed with the marked money in a briefcase carried by him. The presumption under section 20(1) thus arose. The High Court unfortunately overlooks this aspect.
9. Faced with this situation it was submitted by Mr. Anand, on behalf of the respondent, that the presumption under section 20 does not arise in a case under section 13(1)(d) of the Prevention of Corruption Act. He submitted that for an offence under section 13(1)(d) the demand had also to be proved. In support of his submission he relied upon the case of Subash Parbat Sonvane v. State of Gujarat1.
10. This submission overlooks the fact that the respondent had been accused of an offence under section 7 also. His explanation that the money must have been put into his briefcase when he had gone to the bathroom is unbelievable. Both PWs. 1 and 2 have denied that the respondent went to the bathroom. There is no explanation worth its name as to why the respondent had gone into the hotel room. Even his explanation that he had gone to the hotel to book a table for the night of 31st December is belied by the fact that there is no evidence that any table was booked by the respondent. Thus it was proved that an offence under section 7 of the Prevention of Corruption Act had been committed.
11. Even otherwise, in our view, the High Court was entirely wrong in coming to a conclusion that there was no proof of demand. The evidence of PWs. 1 and 2, to the effect, that when the respondent came into the room he was told that PW2 was the Group Finance Manager, who had brought Rs. 10,000/- as demanded and the further evidence that the respondent assured that the file would be cleared clearly establish that there was a demand and receipt of the money was as a bribe. On this evidence which has not been shaken in cross-examination, in our view, the offence under section 13(1)(d) read with section 13(2) had also been made out. The High Court erred in acquitting the respondent merely on the basis of conjectures and surmises.
12. In this view of the matter, we set aside the judgment of the High Court and convict the respondent under section 7 and section 13(1)(d) read with 13(2) of the Prevention of Corruption Act. In our view, the ends of justice would be met, by sentencing the accused under both the counts to one year’s rigorous imprisonment. The fine and default stipulations will be as stipulated by the trial court.
13. The appeal is allowed to the extent indicated above. The respondent is directed to surrender to serve out the remaining sentence.
