THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 925 of 2003 Date: 19.04.2010 Between: V. Narasimhulu. .. Appellant And State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 925 of 2003 Judgment: This appeal is preferred by the appellant, who is accused No.1 in C.C. No.1 of 2000 on the file of the Additional Special Judge for SPE and ACB Cases, Hyderabad (hereinafter referred as “the Special Judge”). The learned Special Judge, by his judgment dated 20th August 2003, found the appellant/accused No.1 guilty of the offences punishable under Sections 7 and 13(1)(d) of the Prevention of the Corruption Act (for short “the Act”) and convicted and sentenced him to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default to suffer Simple Imprisonment for three months for the offence under Section 7 of the Act. He was also convicted for the offence under Section 13(1)(d) of the Act and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1000/-, in default to suffer Simple Imprisonment for three months. Both the sentences were ordered to run concurrently. Along with accused No.1, accused No.2 was also tried for the same offences, but accused No.2 was found not guilty and he was acquitted. The brief facts of the case are as follows. Accused No.1 was working as Village Administrative Officer, Cheemaladari village, Mominpet Mandal, R.R. District from 11.09.1997 to 02.12.1998. Accused No.2 is an agriculturist of the same village. PW.1 P. Nagaiah is also resident of the same village. According to PW.1, about 15 years back his father P. Butchaiah purchased agricultural land admeasuring Ac.2-05 gts., in Survey No.238 from one Jaleel and got it registered. Since then he was cultivating the said land. PW.1 submitted an application in the MRO office for correcting the revenue records and entering the name of his father in the revenue records. The MRO endorsed the said application and directed accused No.1 to make necessary entries transferring the patta of the land in the name of the father of PW.1. In October 1998, PW.1 approached accused No.1 at his residence and handed over the application and the passbook to him and requested to make necessary entries in the revenue records in respect of the above land in the name of his father. Accused No.1 asked PW.1 to meet him after four or five days. After four days, when PW.1 met accused No.1, it is alleged that accused No.1 demanded an amount of Rs.250/- as bribe for affecting the necessary entries transferring the patta of the land in the name of his father. Three days thereafter when PW.1 again met accused No.1, accused No.1 reiterated his demand and further informed PW.1 that the name of his father cannot be entered as pattadar unless he is paid the demanded bribe amount. According to PW.1, then he discussed the matter with PW.2 Ramachandraiah of his village and got Ex.P1 complaint drafted by the said PW.2 and approached the ACB officials. According to PW.6, P. Ashok Kumar, who was working as DSP, HR Range, Hyderabad during the relevant period, PW.1 approached him on 16.11.1998 at about 10.30 AM at his office and presented Ex.P1 complaint and he registered the same as a case in Crime No.9/ACB/HR/98, dated 17.11.1998. Ex.P2 is the original FIR. Then he summoned the mediators PW.3 G. Ashok and one Ratnam on 17.11.1998 and introduced PW.1 to the said mediators and vice versa and the mediators verified the complaint of PW.1. Then PW.1 produced Rs.250/- in Rs.50/- denominations. The currency note numbers were noted in the mediators report and then the currency notes were treated with phenolphthalein powder and the said notes were kept in the shirt pocket of PW.1 after ensuring that nothing remained in the said pocket. PW.1 was instructed to handover the amount to accused No.1 only on his demand. PW.1 was specifically directed not to give shake hand to accused No.1 before or after handing over the currency notes to accused No.1. The significance of the phenolphthalein test was explained and it was demonstrated and the first mediators report was prepared under Ex.P4. After completing the first mediators report, the trap party left the ACB office in a Government jeep and reached the village of the accused. PW.1 went into the house of accused No.1 and the other trap party members took vantage positions. When PW.1 entered into the house of accused No.1, four persons including accused No.2 was sitting in the verandah of the house of accused No.1. On seeing PW.1, accused No.1 came out and took him aside and asked him the purpose of his visit. Then PW.1 asked him about his passbook and then accused No.1 asked whether he brought the amount and when PW.1 gave positive reply and handed over the tainted currency notes to accused No.1, accused No.1 received the same with his right hand and kept it in his shirt pocket and went inside his house. Then PW.1 gave pre-arranged signal to the trap party. Having received the signal from PW.1, PW.6 and other trap party members rushed to the house of the accused. When the trap party entered into the house of accused No.1 four persons were sitting in the verandah. Then one of the persons went inside and after sometime two persons came out of the house of accused No.1. The trap party introduced themselves to accused Nos.1 and 2. Sodium Carbonate solution was prepared and accused No.1 was asked to rinse his both hand fingers separately and when he did so, the solution in which the right hand fingers were rinsed gave positive result. However, there was no change in the solution in which the left hand fingers were rinsed. Then accused No.1 was asked to produce the tainted currency notes. Accused No.1 was shivering and then informed that he gave the amount to accused No.2. Then both the hand fingers of accused No.2 were also subjected to Sodium Carbonate solution test and the right hand wash gave positive result, whereas the left hand fingers wash gave negative result. On demand, accused No.2 produced wad of currency notes. The currency notes were tallied with the numbers mentioned in the first mediators report. The inner flap of the right side banian pocket of accused No.2 was subjected to sodium carbonate test. Similarly, accused No.1’s flap of the left side shirt pocket was also subjected to sodium carbonate test. Both the tests gave positive result. The resultant sodium carbonate solutions were seized, sealed and labeled. As per the directions of PW.6, accused No.1 produced pattadar passbook relating to the father of PW.1. After completing the formalities the second mediators report was prepared. PW.7, after obtaining necessary sanction and after completing investigation, filed charge sheet against both the accused. Since both the accused pleaded not guilty and claimed to be tried, the prosecution examined PWs.1 to 7 and got marked Exs.P1 to P12 and MOs.1 to 12. On behalf of the accused, DWs.1 and 2 were examined and Ex.D1 was marked. The learned Special Judge, on appreciation of the entire oral and documentary evidence, found accused No.1 guilty and convicted and sentenced him as stated supra. However, accused No.2 was acquitted. Sri O. Kailasnath Reddy, learned counsel for accused No.1, submitted that the learned Special Judge failed to appreciate the evidence in proper perspective. It is submitted that as seen from the evidence on record the entries in the title deed and pattadar passbook were already made prior to the complaint, therefore the question of demanding bribe by accused No.1 does not arise and this aspect was not considered by the learned Special Judge. It is further argued that PW.1 and his father took loan of Rs.500/- from accused No.1 and out of that Rs.250/- was already paid a month prior to the date of trap and subsequently when PW.1 had paid the remaining amount of Rs.250/- accused No.1 was trapped. It is further argued that there is no evidence to show that accused No.1 demanded illegal gratification on 12.11.1998 or on 14.11.1998. It is further argued that the acceptance of the amount by accused No.1 on 17.11.1998 cannot be called as accepting the bribe, since it was towards the part payment of the loan amount taken by PW.1. It is further argued that PW.2, who is the scribe of Ex.P1, was on inimical terms with accused No.1 and that Ex.D1, copy of grounds in appeal No.A3/3540 of 1997 on the file of the Commissioner of Land Revenue, Hyderabad, challenging the appointment of accused No.1 as Village Administrative Officer, shows that PW.2 was on inimical terms with accused No.1. It is further argued that since PW.2 had hatched a plan to trap accused No.1 in this case, a false case has been registered against accused No.1. It is further argued that admittedly PW.1 did not give any complaint against accused No.1 to any one of the officials and he did not inform to any one except to PW.2, which shows the complicity of PWs.1 and 2 in implicating accused No.1 in this case. It is further argued that PW.1 has categorically admitted that he has shown the passbook to DSP as on the date of lodging complaint and this falsifies the case of the prosecution that the passbook was seized from accused No.1 on the date of trap. It is also argued that the quantum of punishment is highly disproportionate to the proved misconduct. Learned Special Public Prosecutor for ACB submitted that as far as PW.1 is concerned, admittedly there is no enmity between PW.1 and accused No.1 and there was no need for PW.1 to speak falsehood against accused No.1. It is further submitted that though the MRO passed orders in June 1998 directing the Village Administrative Officer to effect the entries in the revenue records showing the purchase of land by the father of PW.1, the passbook was not handed over to PW.1 till the date of trap. It is further argued that the evidence of PWs.3 and 6 clinchingly establishes that accused No.1 had accepted the tainted currency notes. Since his right hand fingers when rinsed in sodium carbonate solution gave positive result and the currency notes were recovered from accused No.2. Though the case against accused No.2 is not proved, but the fact remains that the evidence on record shows that accused No.1 demanded the bribe and accepted the same. It is further argued that though the entries were already made in the passbook but since the passbook was not handed over to PW.1 and PW.1 was given an impression that unless bribe amount is paid to him, the passbook will not be handed over to him and this is sufficient to show that accused No.1 had given an impression to accused No.1 that unless bribe is paid to him his work will not be done. It is further submitted that in fact the official favour need not be pending with accused No.1, but it is sufficient if he gives an impression that the work of PW.1 will not be completed till the bribe amount is paid. It is also submitted that the very fact of not handing over the passbook and retaining by accused No.1 shows that the official favour was pending with accused No.1 by the date of trap. It is also submitted that the defence theory is most improbable and that if at all accused No.1 had advanced a loan of Rs.500/-, PW.1 would not have implicated him in a false case. It is also submitted that the version of DWs.1 and 2 clinchingly appears to be an after thought and DW.2 did not whisper anything as deposed by him in the Court at the time of preparing of second mediators report. It is also submitted that accused No.1 was shivering and could not give proper reply, therefore the version of accused No.1 could not be noted in the second mediators report. It is further submitted that the learned Special Judge had given cogent reasons for his findings and there is nothing to interfere with the same. He requested to dismiss the appeal. The specific case of the prosecution is that the father of PW.1 purchased agricultural land from one Jaleel and PW.1 submitted an application to the MRO, Moinpet, requesting him to transfer the patta of the land in the name of his father and that the M.R.O., endorsed on the said application directing accused No.1 to effect entries in the revenue records and that when PW.1 approached accused No.1 for making necessary entries as per the orders of the M.R.O, accused No.1 demanded bribe of Rs.250/- on 12.11.1998 and subsequently on 14.11.1998, and thereupon, PW.1 lodged a complaint to the DSP, ACB on 16.11.1998. The further case of the prosecution is that a trap was successfully arranged on 17.11.1998 and that when the right hand fingers of accused No.1 rinsed in Sodium Carbonate solution it gave positive result. The further case of the prosecution is that the tainted amount was recovered from the possession of accused No.2 to whom accused No.1 had handed over the tainted amount soon after receiving from PW.1. The specific case of accused No.1 is that about two months prior to the date of trap, PW.1 approached him and took hand loan of Rs.500/- from him and subsequently he paid Rs.250/- and that on the date of trap when PW.1 repaid the remaining loan amount of Rs.250/- the trap was arranged. Now it has to be seen whether the prosecution has proved its case beyond all reasonable doubt and whether the version of accused No.1 is probable. It is not in dispute that PW.1 submitted the application of his father dated 28.06.1998 requesting the MRO to change the entry in the revenue records in respect of the land purchased by the father of PW.1 from one Md. Abdul Jaleel. It is also not in dispute that the MRO issued proceedings No.5/3996/98, dated 28.06.1998 in Ex.P5 directing the accused No.1, who was working as Village Administrative Officer, to incorporate the necessary changes in the revenue records. Ex.P6 is the pattadar passbook which shows that necessary entries were made in the pattadar passbook in pursuant to the orders of the MRO. However, no date is noted below the signature of MRO in the said pattadar passbook. The evidence of PW.4 who worked as MRO from 10.09.1998 to 09.08.1999 reveals that his predecessor signed at the relevant entry in Ex.P8 register and that accused No.1 obtained his attestation in the pattadar passbook and title deed book of the father of PW.1 on 16.11.1998. However, PW.4 admitted that there is no date with regard to entries made in Ex.P6. From the above evidence, it is clear that PW.1 made an application for effecting change in the revenue records and that the predecessor of PW.4 issued proceedings on 28.06.1998 and PW.4 attested in the pattadar passbook either on 16.11.1998 or prior to that date. The main contention of the learned counsel for accused No.1 is that no official favour was pending as on the date of lodging complaint to the ACB i.e., on 16.11.1998, since PW.4 had already attested in the pattadar passbook of the father of PW.1. It appears that accused No.1 had already obtained the signature of PW.4 on or before 16.11.1998. Thus, no official favour was pending with accused No.1 as on 16.11.1998. However, what is required to be seen is whether PW.1 had knowledge that accused No.1 had already made entries in the pattadar passbook and taken the attestation of PW.4. The specific case of PW.1 is that in October 1998 he approached accused No.1 and handed over the application and passbook to him and accused No.1 directed to meet him after four or five days. He says that after three days he met accused No.1 and at that time accused No.1 demanded bribe of Rs.250/- for effecting entries in the revenue records and then again he met accused No.1 after three days as per the directions of accused No.1 and accused No.1 again reiterated his demand and thereafter he lodged complaint to the DSP, ACB. It has to be seen that accused No.1 was working as Village Administrative Officer and he had to make necessary entries in the pattadar passbook and he had to obtain the attestation of the MRO. It appears that accused No.1 had given an impression to PW.1 that unless he was paid an amount of Rs.250/- as bribe the work of PW.1 will not be done. It is irrelevant whether the work of PW.1 was completed by that time or not. It is sufficient if accused No.1 had given an impression to PW.1 that his work would not be completed unless the bribe amount is paid. It has to be seen that the pattadar passbook was with accused No.1 by the date of trap. This means the pattadar passbook was not handed over to PW.1 when PW.1 met him on two occasions prior to the date of trap. Since accused No.1 was the person who has to make entries in the pattadar passbook and he had to handover the pattadar passbook to PW.1 and the pattadar passbook was not handed over to PW.1 by the date of trap the factum of accused No.1 obtaining the attestation before the trap will not disprove the demand of accused No.1. Probably since accused No.1 informed PW.1 that by the time if he pays an amount of Rs.250/- he will be handed over the pattadar passbook and with a view to handover the passbook after receiving the bribe amount accused No.1 might have obtained attestation of PW.4 before the date of trap. It has to be seen that though the MRO issued proceedings in June 1998 and entries were attested by the MRO, the passbook was not handed over to PW.1 by accused No.1 till the date of trap. This itself shows that accused No.1 was retaining the passbook for the purpose of collecting illegal gratification from PW.1. The evidence of PW.1 and the surrounding circumstances proves that there was demand by accused No.1 for illegal gratification. As far as the trap is concerned, we have the evidence of PWs.1, 3 and 6. PW.1 says that he lodged Ex.P1 complaint to DSP and then the first mediators report was prepared and the currency notes were treated with phenolphthalein powder and the notes were kept in his shirt pocket and that as per the instructions of PW.6 he went to the house of accused No.1 followed by the trap party. PW.1 categorically deposed that when he went to the house of accused No.1 four persons were sitting along with accused No.1 in the verandah and that on seeing him accused No.1 came out and took him aside and when PW.1 asked about his passbook, accused No.1 asked him whether he had brought the amount and then PW.1 replied in positive and handed over the tainted currency notes to accused No.1. According to PW.1, accused No.1 received the same with his right hand and kept in his shirt pocket and went inside the house and then he gave pre-arranged signal to the trap party. The evidence of PW.3 also shows that he was present during the proceedings when first mediators report was prepared and that he accompanied the DSP, ACB and after PW.1 went to the house of accused No.1 they took vantage positions and after receiving signal the trap party entered into the house of accused No.1. PW.2 also deposed that four persons were sitting in the house of accused No.1 and one among them went inside the house and called accused No.1 and accused No.1 came out and the test was conducted and when accused No.1 was directed to rinse his hands, his right hand turned to pink and whereas there is no change in the left hand wash. Thus, the evidence of PWs.3 and 6 clinchingly establishes that when the right hand fingers of accused No.1 were subjected to test and the right side shirt pocket of accused No.1 was also subjected to test there was positive result. Thus, admittedly, accused No.1 had accepted the tainted currency notes and the test proved to be positive. Of course, this is not in dispute. The version of accused No.1 is that since PW.1 had to repay part of loan amount he had received Rs.250/- from PW.1 towards remaining loan amount. The next point argued by the learned counsel for accused No.1 is that the pattadar passbook was in fact shown by PW.1 to the DSP on the date of lodging complaint to the DSP and this fact improbablise the prosecution case that the pattadar passbook was seized at the instance of accused No.1. PW.1 has categorically deposed that in October 1998 he approached accused No.1 at his house and handed over the application and passbook to him and requested him to effect the changes in the pattadar passbook. However, in the cross- examination, PW.1 stated as follows. “I enclosed the order copy given by MRO along with my complaint to DSP. I also shown passbook to the DSP. I gave complaint to the DSP at 10.00 AM”. PW.6 also admitted that PW.1 produced certain documents when he presented the complaint to him. However, he had not noted down the list of documents produced by PW.1 on the date of lodging complaint. There appears to be a minor contradiction on the issue of showing passbook to PW.6. However, a reading of the entire evidence gives an impression that it is only a minor contradiction. In Ex.P1 complaint dated 16.11.1998, PW.1 has categorically stated that he had handed over the passbook to accused No.1 along with copy of the order of MRO in October 1998. PW.1 had also categorically deposed the same in his chief examination. Therefore, the subsequent version of PW.1 in his cross-examination that he had shown the passbook to DSP appears to be a mistake. PW.1 could not have shown the passbook to the DSP, when as per his earlier version and as per the version in Ex.P1 it was already handed over to accused No.1 in October 1998. However, PW.1 was not cross-examined whether it was the Photostat copy of the passbook or the original passbook that was shown to DSP. It has to be seen that minor contradictions are bound to occur in the evidence of natural and truthful witnesses. Merely because there are some minor contradictions or omissions in the case of the prosecution the evidence of a witness need not be discarded on that ground. What is to be seen is whether the evidence of such witness is inspiring confidence or not, whether his version can be accepted or not and whether he appears to be a reliable witness or not. Though it was suggested that there was enmity between PW.2 and accused No.1, admittedly there was no enmity between PW.1 and accused No.1. What was suggested is that PW.1 was acting as per the instructions of PW.2. But merely because the complaint is drafted by PW.2 it cannot be said that PW.1 was acting as per the directions of PW.2. As far as enmity between accused No.1 and PW.2 is concerned, as seen from the contents of Ex.D1 it appears that PW.2 seems to have filed an appeal against accused No.1 challenging his appointment as Village Administrative Officer before the Commissioner of Land Revenue, Hyderabad. Admittedly, PW.2 is the scribe of Ex.P1. PW.2 admitted that he also tried for the post of Village Administrative Officer under SC category and that he filed appeal before the Commissioner of Land Revenue against accused No.1 questioning his appointment as Village Administrative Officer. He denied the suggestion that he had falsely implicated accused No.1 with the help of PW.1. PW.2 may have some grudge against accused No.1. But, as far as PW.1 is concerned nothing on