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TMI Blog2020 (12) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... cutor for ACB and perused the record. 3. The petitioner herein filed the subject interlocutory application before the trial Court inter alia contending as follows: "The petitioner is shown as Accused No. 5 with other four accused in Crime No. 11/ACB-CR.1/2015 for the alleged offences under section 12 of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') and section 120B r/w 34 of I.P.C. The prosecution alleged that A-1 to A-5 conspired to commit the offence of bribing the de- facto complainant, namely, Elvis Stephenson (nominated MLA) for securing his vote in favour of one Vem Narender Reddy, a candidate proposed by Telugu Desam Party for the membership of Legislative Council of Telangana State. The said election was scheduled on 01.06.2015. It is further alleged by the prosecution that A-1 and A-2 directly contacted the de-facto complainant and offered bribe for casting his vote in favour of Vem Narender Reddy on 31.05.2015 and accordingly, A-1 to A-3 proceeded to the house of de-facto complainant to handover a part of bribe amount of Rs. 50 lakhs and in that process, the investigating agency laid a trap and apprehended A- 1 to A-3 on the spot. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facto complainant and offered bribe to cast his vote in favour of a person belonging to a political party or to abstain from elections. Mere phone calls between the petitioner/A-5 and the other accused persons in the subject crime, without reference to any demand or offer by the petitioner/A-5, cannot constitute any offence under the P.C. Act. This Court, while dealing with quash petition of A- 4, held that mere offer cannot constitute penal consequence under Section 12 of P.C. Act. There is no certificate under Section 65-B(4) of Evidence Act, which is mandatory and condition precedent for admissibility of evidence by way of electronic record, in the instant case. No prosecution can be initiated against a person basing on the phone calls, moreover when the said person is not directly involved. The Court, at the stage of charge, is not a mouthpiece of the prosecution, nor would it act as a mere post office. The Court has the power to sift through the material placed on record for the limited purpose of determining whether grave suspicion exists against an accused for the purpose of framing charge. The impugned order is illegal, perverse and is liable to be set aside and ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of this Court under Sections 397 and 401 of Cr.P.C. is very limited and this Court cannot re-appreciate the entire evidence on record, unless it is shown that perverse findings have been recorded by the trial Court. The contentions raised on behalf of the petitioner/A-5 do not merit consideration. There is no illegality, impropriety or perversity in the impugned order and ultimately, prayed to dismiss the Criminal Revision Case. 7. In view of the above rival contentions, the point that arises for determination in this Criminal Revision Case is as follows: "Whether the impugned order, dated 02.11.2020, passed in Crl. M.P. No. 557 of 2020 in C.C. No. 5 of 2017, by the learned Principal Special Judge for trial of SPE & ACB Cases, Hyderabad, is illegal, perverse and is liable to be set aside?" POINT: 8. The material placed on record reveals that the petitioner/A-5 is being prosecuted for the offences under Sections 12 of P.C. Act and 120B r/w 34 of IPC. The allegation is that the petitioner/A-5, along with other accused, i.e., A-1 to A-4, conspired to commit the offence, i.e., giving bribe to LW.1 Elvis Stephenson to secure his vote in favour of Vem Narender Reddy, a candi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject case. Furthermore, no certificate under Section 65-B(4) of Evidence Act was obtained by the prosecuting agency to identify the electronic record containing the communication between A-2 and the petitioner/A-5. 10. Admittedly, no certificate, as required under Section 65-B(4) of Evidence Act, is obtained by the investigating agency with regard to recognition of voice of A-2 and to compare the same with the voice of the petitioner/A-5. In this regard, the learned Special Public Prosecutor would submit that the said certificate can be obtained and produced during the course of trial of the case and it is not a ground to discharge the petitioner/A-5 from the subject case. The said submission cannot be brushed aside. 11. Here, it is apt to refer to Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988, which read as follows: 7. Public servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of criminal conspiracy. Pursuant to the said conspiracy, an amount of Rs. 50 lakhs was offered as part of bribe to LW.1 Elvis Stephenson to cast his vote in favour of Vem Narender Reddy for his membership in Legislative Council of Telangana State. The learned senior counsel appearing for the petitioner/A-5 would submit that though there is exchange of messages between A-2 and petitioner/A-5, LW.1 Elvin Stephenson is a nominated candidate and he is not governed by any party whip and therefore, requesting him to vote in favour of a particular candidate or exchanging messages would not constitute any offence, as alleged against the petitioner/A-5. The exchange of messages made in between A-2 and petitioner/A-5 are required to be examined with reference to the material on record and they cannot be read in isolation. The learned senior counsel appearing for the petitioner/A-5 further contended that the name of the petitioner/A-5 is not found in the FIR and that LW.1 did not name the petitioner/A-5 at any point of time and that the petitioner/A-5 was not present on the spot on the date of alleged offer to pay Rs. 50 lakhs to LW.1 and that when already a charge-sheet was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s committed an offence, he shall frame in writing a charge against the accused and proceed with. The Court below, while dealing with the subject matter of this Criminal Revision Case, has placed reliance on the statements of LW.1 Elvis Stephenson, investigating officers, witnesses, Sim Cards used by the accused including the petitioner/A- 5, FSL reports obtained after analyzing the data, and came to the conclusion that the material on record prima facie show that the petitioner/A-5 shared the idea of influencing the de-facto complainant to cast his vote in favour of Vem Narender Reddy. Further, the learned trial Judge, having examined the entire material on record, rejected the contentions advanced on behalf of the petitioner/A-5 for the offences incorporated in the charge-sheet and held that there is prima facie case against the petitioner/A-5 to frame charges and there are no grounds for his discharge and further observed that no detailed enquiry is required to be conducted at this stage. 14. Further, it is apt to mention here the object of the Revisional jurisdiction is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Evidence Act. In the instant case, though there is no production of certificate as required under Section 65-B(4) of Evidence Act, there is no legal bar to produce the same during the course of trial of the case. Hence, the said decision is not helpful to the petitioner/A-5. The facts of D. Srinivasa Rao's case (2 supra) are distinct with the facts of the case on hand and thus not helpful to the petitioner/A-5. Further, it is settled law that each case shall be decided on its merits. 16. The impugned order of trial Court does not reflect patent defect or an error of jurisdiction or law. It is in accordance with law. Neither there is non-compliance of the provisions of law nor is it grossly erroneous. The conclusion reached by the trial Court is based on material on record, it is not perverse or illegal. There is prima facie case to frame charge/s against the petitioner/A-5 and proceed with. Under these circumstances, the impugned order is sustainable. The Criminal Revision Case is devoid of merit and is liable to be dismissed. 17. In the result, the Criminal Revision Case is dismissed. Miscellaneous petitions, if any, pending in this Criminal Revision Case, shall stand clo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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