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CASE NO.:

Appeal (crl.) 865 of 2003

PETITIONER:

State of A.P.

RESPONDENT:

S. Janardhana Rao

DATE OF JUDGMENT: 17/11/2004

BENCH:

B.N.AGRAWAL & A.K.MATHUR

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL MISCELLANEOUS PETITION NO. 2569 OF 2004

B.N.AGRAWAL, J.

Initially four persons, namely, S.Janardhana Rao (A-1), Mohammed Omar

Bin Moin (A-2), S. Indira (A-3) and S.Prasanth (A-4) were made accused, but as

A-2 turned to be an approver, pardon was granted to him and he was examined

as PW-21. Thus, trial proceeded against the remaining three accused persons

and the learned Special Judge upon the conclusion of trial acquitted A-3 and A-4

whereas convicted A-1 under Sections 7 and 13(1)(d) read with Section 13(2) of

the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous

imprisonment for a period of three years and to pay a fine of Rs. 3,000/-; in

default to suffer simple imprisonment for a period of two months on each count.

The sentences, however, were ordered to run concurrently. Against the order of

conviction, A-1 preferred an appeal before the High Court of Andhra Pradesh

whereas the State preferred an appeal against the order of acquittal of A-3 and

A-4 and the High Court dismissed the State appeal whereas allowed the appeal

filed by A-1 and acquitted him of all the charges. The State of Andhra Pradesh

filed two petitions for grant of Special Leave to appeal; one against the order

whereby the High Court dismissed appeal filed by the State against the order of

acquittal of A-3 and A-4 by the trial court, which SLP was dismissed; and the

second against the order whereby the High Court acquitted A-1 of all the charges

in which leave was granted.

The prosecution case, in short, was that A-1 was the member of Andhra

Pradesh Higher Judicial Service and posted as IIIrd Metropolitan Sessions

Judge, Hyderabad, at the relevant time and residing in Flat No. 402 of

Garudagagan Apartments, Padmaraonagar, Secunderabad, A-3 was his wife,

who was working as a teacher in Government New High School, Kotteru,

Hanumakonda, and A-4 was their 19 years' old son, who was deaf and dumb by

birth. A-2 was a police constable attached to the court of A-1. Before A-1,

Sessions Case No. 186 of 1989 was pending trial in which besides others, Sant

Esher Singh (PW-1) and Rajinder Singh (PW-2) were accused. As the trial of the

said case was at its final stage, A-1 is alleged to have sent message through

PW-21 to PWs 1 and 2 demanding a sum of Rs. 6 lacs as illegal gratification for

recording their acquittal in the said case, but ultimately the amount was reduced

by A-1 to Rs. 3 lacs. As PWs 1 and 2 were not agreeable to pay even the

reduced amount, PW 1 approached the officials of Anti Corruption Branch

(hereinafter referred to as 'ACB') for conducting a trap, but as it was a case in

which a judicial officer was involved, they expressed their inability to do anything

without any order from the High Court. Thereafter, on 3rd and 4th September,

1996, PW-1 met the learned Chief Justice of Andhra Pradesh High Court and

permission was granted by the High Court to conduct trap and register case.

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Thereupon, PW-1 went to the office of ACB with Rs. 3 lacs which was kept in a

plastic cover and gave it to S.Sreeramulu (PW-3) whose services were secured

by R. Suryanarayana, Deputy Superintendent of Police, ACB, (PW-23). PW-23

noted down the numbers of all the currency notes which were in the

denomination of Rs. 500/- in six bundles, on a separate sheet of paper. One of

the officials of ACB treated the currency notes with the layer of phenolphthalein

powder. Thereupon, officials of ACB organized a trap and they went to the court

of A-1 on 4th September, 1996 which was a date fixed in the case where A-1

pronounced in open court the code word that "all the matters will be adjourned to

6th September, 1996" which could be taken as confirmation that PW-21

approached PWs 1 and 2 on his behalf and the work would be done. Then, on

the same day, PWs 1 and 21 along with the trap party went to the house of A-1

at Hanumakonda in which his wife and son were residing. While members of the

trap party were waiting at some distance from the house, PWs 1 and 21 went to

the said house and as it was bolted from inside, PW-21 pressed the call bell

whereupon wife of A-1 opened the door and both PWs 1 and 21 went inside the

house where son of A-1 was also present. When PW-21 tried to hand over the

plastic cover containing sum of Rs. 3 lacs, wife of A-1 asked him to count the

money in her presence and after the same was counted, as directed by her,

PW-21 kept the plastic cover containing the aforesaid amount on the teapoy

which was shifted by her son to the cup-board in the same room. Thereafter,

PWs 1 and 21 came out from the house and gave pre-arranged signal to the

members of the trap party consisting of G.Bal Reddy (PW-22), PW-23 and the

mediator (PW.3) who entered the house, met wife of A-1 and asked her about

the receipt of the sum of Rs. 3 lacs, which she denied. Thereafter, son of A-1,

who was deaf and dumb, led the members of the trap party to the bathroom

attached to the master bedroom by making gestures and signs; and removed the

lid of the flush tank where plastic bag containing sum of Rs. 3 lacs was found in

water, photograph of which was taken, and after the same was taken out

therefrom, the numbers of the currency notes, contained in the plastic bag, were

compared and the same tallied with the numbers already noted down by PW-23

on a separate sheet of paper. After seizure of the aforesaid sum of Rs. 3 lacs,

PW-21 informed A-1 about the payment of the said sum of Rs. 3 lacs to his wife

and A-1 fixed up time to meet PW-1. According to pre-arranged programme,

PWs 1 and 21 went to the flat of A-1 in the Apartment at Secunderabad in the

night between 4th and 5th September, 1996 at 1.00 O'clock. After some time, PW-

21 came out and remained outside the apartment. In the meantime, according

to pre-arranged plan, the officials of ACB came there, entered the flat of A-1 and

found that A-1 was entertaining PW-1.

Stating the aforesaid facts, a first information report was lodged for

prosecution of A-1, his wife (A-3), his son (A-4) besides PW-21 and investigation

proceeded, on completion whereof chargesheet was submitted against all the

aforesaid four accused persons after obtaining the required sanction. On receipt

of the chargesheet, cognizance was taken.

Defence of the accused persons was that they were innocent, no

occurrence as alleged had taken place and they were falsely implicated in the

present case at the instance of M.E.N.Patrudu (PW-20), the then Registrar

(Vigilance) of the High Court of Andhra Pradesh, who was also member of

Andhra Pradesh Higher Judicial Service.

During trial, as A-2 was granted pardon, the trial proceeded against the

remaining three accused persons, as stated above. During trial, the prosecution

examined several witnesses and got exhibited various documents. Upon

conclusion of trial, the learned Special Judge acquitted A-3 and A-4, wife and son

respectively of A-1, but convicted A-1, as stated above, whereupon two appeals

were filed, one by the State against the acquittal of A-3 and A-4 and the other by

A-1 challenging his conviction before the High Court. The appeal filed by the

State was dismissed whereas the one filed by A-1 was allowed and he was

acquitted of all the charges whereupon two Special Leave Petitions were filed

before this Court. The Special Leave Petition filed against the order of the High

Court confirming acquittal of wife and son of A-1 was dismissed whereas leave

was granted against the order of acquittal of A-1 rendered by the High Court.

Hence, this appeal in which an application was filed by M.E.N.Patrudu (PW-20),

the then Registrar (Vigilance) of Andhra Pradesh High Court, which gave rise to

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Criminal Misc. Petition No. 2569 of 2004 for expunging the adverse remarks

recorded by the High Court against PW-20 in the impugned order of acquittal of

A-1 which was directed to be considered at the time of hearing of the appeal.

In order to prove its case against A-1, who is respondent herein, the

prosecution has relied upon the following circumstances:

(i) A-1 demanded a sum of Rs. 6 lacs by way of illegal gratification which was

later reduced to Rs. 3 lacs for showing official favour to PWs 1 and 2, who

were accused in Sessions Case No. 186 of 1989 which was pending trial

in his court and the said demand was made through PW-21.

(ii) PW-1 met the learned Chief Justice of Andhra Pradesh High Court and

obtained permission of the High Court for trap and registering a case.

(iii) On 4th September, 1996, which was the date fixed In Sessions Case No.

186 of 1989, A-1 pronounced the code word that "all the petitions posted

to that date stand adjourned to 6th September, 1996" to assure PW-1 that

the amount was demanded on his behalf by PW-21 and to go ahead with

modalities worked out earlier, i.e., to pay the amount of Rs. 3 lacs in the

denomination of Rs. 500/- notes to his wife in his Hanumakonda house.

(iv) The amount of Rs. 3 lacs was paid to the wife of A-1 on 4th September,

1996 at his Hanumakonda house and the same was recovered by the trap

party at the instance of son of A-1 from the flush tank of bathroom

attached to the master bedroom of his house.

(v) After payment of illegal gratification to the wife of A-1, PW-21 informed A-1

about the same on phone and fixed time with him to meet PW-1 and A-1

was found meeting and entertaining PW-1 in his flat at Garudagagan

Apartments at Secunderabad in the night between 4th and 5th September,

1996 at 1.00 O'clock.

To prove the first circumstance, prosecution has led the evidence of

PWs 1, 2 and 21. PW-21 who was an approver, stated that he was a constable

attached to the court of A-1 and one day, in the month of June, 1996, A-1 called

him in his chambers and asked him to secure a driving licence for one of his

relatives which work was done, as such, he became familiar to A-1. Thereafter,

A-1 called him at his house and asked him to contact PWs 1 and 2, who were

accused in Sessions Case No. 186 of 1989, for payment of illegal gratification to

the tune of Rs. 6 lacs to A-1 whereupon those accused persons would be

acquitted. The witness further stated that as he was afraid of PW-1, he met

PW -2 on 20th August, 1996 and conveyed the message of A-1 to him and on his

advise, met PW-1 on 24th August, 1996 and communicated the message to him

as well, who wanted some time to consult PW-2. Five or six days thereafter, he

again met PW-1 who expressed that he and PW 2 were in a position to pay only

a sum of Rs. 3 lacs and the said information was passed on by PW 21 to A-1

who asked him to settle the deal for the said sum. PW-21 further stated that

thereupon he informed PW-1 that A-1 was ready to accept sum of Rs. 3 lacs for

recording acquittal of PWs 1 and 2. Thereupon, as PW-1 appeared to be in

doubt whether the amount was actually demanded by A-1, PW-21 stated that it

would be confirmed on 4th September, 1996 which was the date fixed in the said

sessions case on which day in open court A-1 will announce "that all the matters

will be adjourned to 6th September, 1996", which could be taken as code word to

indicate that PW-21 approached PW-1 on behalf of A-1 and the amount of

Rs. 3 lacs should be paid to the wife of A-1 at his Hanumakonda house. The

statement of PW-21 has been corroborated in all material particulars by PWs 1

and 2 and the trial court after a detailed discussion placed reliance upon their

evidence and the High Court was not justified in disbelieving their evidence on

the basis of certain minor contradictions in their evidence. In our view, the

prosecution has succeeded in proving this circumstance by credible evidence.

In order to prove the second circumstance, the prosecution has examined

PW-1, Khaja Pasha (PW 15), PWs 20 and 23. PW-1 stated that upon the receipt

of message of A-1 through PW-21, he informed ACB officials who refused to take

any action on the ground that permission of the High Court was required as A-1

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was a member of Andhra Pradesh Higher Judicial Service. Then on 3rd

September, 1996, PW 1 could telephonically talk to PW-15, Private Secretary to

the learned Chief Justice, Andhra Pradesh High Court, and appointment was

fixed to meet the learned Chief Justice at 8.00 p.m. on that day. PW-15 further

advised PW-1 to bring a written representation. Thereupon PW-1 went to the

residence of the learned Chief Justice along with written representation (Ex.P-1)

and gave the same to PW-15 in a sealed cover. After some time, he was called

by the learned Chief Justice who asked PW-1 as to whether the contents of

Ex.P-1 were true and correct and warned him that in case the same were found

to be false, action would be taken against him. He further stated that he was

asked by the learned Chief Justice to come again on the next day in the morning

and accordingly this witness again went to the residence of the learned Chief

Justice on 4th September, 1996 at 7.30 a.m. At that time, the Director General,

ACB, the Joint Director, ACB, the Deputy Superintendent of Police, ACB,

(PW.23) were already present at the house of the learned Chief Justice besides

PW-20, the then Registrar (Vigilance) of the Andhra Pradesh High Court and he

was informed by the learned Chief Justice that the Joint Director, ACB, will take

care of the case under the guidance of Director General, ACB, whereupon PW-1

presented complaint before the Joint Director, ACB, on the same day. The

aforesaid statement of PW-1 has been corroborated by PW-15, Private Secretary

to the learned Chief Justice, Andhra Pradesh High Court, and PW-20- the then

Registrar (Vigilance) and PW-23, who is said to have written a letter on 4th

September, 1996 to the Director, ACB, to conduct a trap and register case

against A-1. PW-23 has also supported the statement of PW-1. The statements

of these witnesses are consistent with each other and have been relied upon by

the trial court, but the High Court was not justified in refusing to place reliance

upon them as there were certain minor discrepancies therein Thus, we find that

the prosecution has proved this circumstance as well.

To prove the third circumstance, the prosecution has led the evidence of

PW-1, M.Ramakrishna Rao (PW-8), Milan Gokele (PW-9), T. Harikrishna

(PW-12) and PW-21. PW-1 stated that on 4th September, 1996, he was present

in the court room when A-1 announced the code word by saying that "all the

matters stand adjourned to 6th September, 1996". The statement of PW-1 has

been supported by PW-8 who was a special public prosecutor conducting

Sessions Case No. 186 of 1989 who has categorically stated in his evidence that

after luncheon recess when the case was taken up, A-1, who was the Presiding

Officer, stated in open court that "all the matters stand adjourned to 6th

September, 1996" but on the representation made by PW-9, the defence

counsel, the case was adjourned to 9th September, 1996 as 6th September, 1996

was not convenient to PW-9. PW-9, the defence counsel, corroborated the

statement of PW-8. He further stated that as 6th September, 1996 was not a date

convenient to him, the matter was adjourned to 9th September, 1996 on his

representation. PW-12, Inspector of Police, ACB, stated that he was deputed to

attend the court on 4th September, 1996 to observe the proceedings in Sessions

Case No. 186 of 1989 and on that day in his presence, A-1 announced in open

court that "all the matters stand adjourned to 6th September, 1996". PW-21

stated that though on that day he had also gone to the court, he did not go inside

the court hall, but was standing outside the court hall and after the case was

adjourned, PW-1 came out from the court hall and informed this witness that A-1

announced code word in open court by saying that "all the matters stand

adjourned to 6th September, 1996". From a bare perusal of the evidence of these

witnesses, it would be clear that their evidence is consistent with each other and

there is no contradiction therein on any material point. We find that the trial

court was justified in relying upon their evidence to prove the circumstance and

the High Court was wholly unjustified in doubting the veracity of their statements

on the basis of minor contradictions in their evidence.

In order to prove the fourth circumstance, the prosecution adduced the

evidence of PWs 1, 3, 21, 22 and 23. PW-1 stated that on 4th September, 1996,

he went to ACB office with the sum of Rs. 3 lacs kept in a plastic cover and

handed over the same to the Dy. Superintendent of Police, ACB (PW-23) and

his statement has been corroborated by PWs 3, 22 and 23. These witnesses

have further stated that phenolphthalein powder was applied to the currency

notes. It was arranged that PWs 1 and 21 would go inside the house of A-1 at

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Hanumakonda and after paying the sum of Rs. 3 lacs to his wife, they would

come out from the house and PW 1 would give signal to the trap party by wiping

his face with handkerchief and thereupon the trap party would go inside the

house. PW-1 stated that according to pre-arranged plan, while the trap party was

waiting outside the house at some distance, he and PW-21 went inside the

house of A-1 at Hanumakonda which was bolted from inside and on the call bell

being pressed by PW-21, wife of A-1 opened the door and on being told by PW

21 that they were sent by A-1, she stated that she had already received a

message from A-1 and was waiting for them. The witness further stated that

PW-21 was asked by wife of A-1 to count the money which was in plastic cover

and thereafter to keep the same on teapoy pursuant to which PW-21 after

counting kept the plastic cover containing the sum of Rs. 3 lacs on the teapoy.

Wife of A-1 asked her son to keep the said plastic cover in the cup-board.

Whereafter PWs 1 and 21 came out from the house and according to the pre-

arranged plan, signal was given to the members of the trap party who arrived

there and were taken inside the house by PWs 1 and 21. PWs 3, 22 and 23,

who were members of the trap party, stated that on receiving pre-arranged signal

from PW-1, they, along with PWs 1 and 21, entered the house of A-1 after his

wife opened the door and they disclosed their identity. On being asked by the

trap party, she denied any knowledge about the sum of Rs. 3 lacs. These

witnesses further stated that son of A-1, who was deaf and dumb, made

gestures and signs and took them to the bath room attached to the master

bedroom and opened the lid of the flush tank in which plastic cover containing

sum of Rs. 3 lacs was found and the same was taken out by PW-3 on the

instructions of DSP, ACB (PW 23). After opening the cover, the numbers of

currency notes were compared and the same tallied with the numbers noted

down separately on a sheet of paper by the members of the trap party. The trap

party thereafter seized the amount of Rs. 3 lacs and prepared mazhar for the

same. Members of the trap party also took photograph of the plastic cover

containing sum of Rs. 3 lacs before the same was taken out from the flush tank.

The evidence of PWs 1 and 21 has been supported by PWs 3, 22 and 23, who

were members of the trap party, and the trial court did not find any discrepancy in

their evidence, but the High Court erroneously refused to place reliance upon

their evidence merely because there were certain minor contradictions therein.

In order to prove the last circumstance against the respondent (A-1), the

prosecution examined PW-1, D.Subba Rao (PW 4), K. Ramesh (PW 6),

Butchanna Goud (PW 7), K.Kumar (PW-18) and PWs 21 & 22. PW-21 stated

that after the seizure, he along with members of the trap party left for Hyderabad

and from the house of PW-7, he had a telephonic talk with A-1 and informed him

about the payment of Rs. 3 lacs and fixed up time of the meeting of PW-1 with

A-1. PW-21 further stated that according to pre-arranged programme, in the

night between 4th and 5th September, 1996 at 1.00 o'clock, PWs 1 and 21 went to

the flat of A-1, which was situated at Garudagagan Apartments, Secunderabad,

and they were followed by PW-4 and PW-22. While PWs 1 and 21 were going

to the flat of A-1, they met PW-6 who was the watchman. After meeting A-1,

PW-1 stayed in the flat of A-1 while PW-21 came out and the door was bolted

from inside. After some time, PWs 4, 18 and 22 came there and found that PW-

21 was standing outside the flat. PW-1 in his evidence corroborated the

aforesaid statements made by PW-21. PWs 4, 18 and 22 stated that on call bell

being pressed, A-1 opened the door and they found that PW-1 who was accused

in Sessions Case No. 186 of 1989 was being entertained in the house of A-1 at

such an odd hour. PW-7 stated that PW-21 had a telephonic talk with A-1 from

his house. PW-6, the watchman of Garudagagan Apartments stated that PWs 1,

4,18,21 and 22 came to the flat of A-1 during that night. The statements of PWs

1, 4,6,7,18,21 and 22 have been relied upon by the trial court to prove this

circumstance against the respondent upon threadbare discussion of their

evidence and the High Court was not justified in disbelieving the same on

account of minor contradictions. Thus, we find that the prosecution has proved

this circumstance as well by credible evidence.

From the foregoing discussions, it would be clear that the prosecution has

succeeded in proving its case beyond reasonable doubt, the trial court was quite

justified in recording conviction of A-1 and the judgment of High Court acquitting

him suffers from the vice of perversity as it has refused to place reliance upon

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the evidence of witnesses merely on the basis of certain minor contradictions in

the evidence of witnesses, though, they have supported the prosecution case on

all material particulars. In our opinion, the High Court was also not at all justified

in making adverse remarks in the impugned judgment against PW-20, the then

Registrar (Vigilance) of the Andhra Pradesh High Court, which were wholly

uncalled for and the same are accordingly liable to be expunged.

For the foregoing reasons, the appeal as well as Criminal Misc. Petition

No. 2569 of 2004 are allowed, the judgment of acquittal, rendered by the High

Court so far the same relates to A-1, is set aside, the order of conviction of A-1

recorded by the trial court is restored and the adverse remarks, recorded in the

impugned judgment against PW-20, are expunged. The respondent is directed

to be taken into custody forthwith to serve out the remaining period of sentence.