THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1164 of 2003 JUDGMENT: This appeal is filed against the judgment passed by the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad in Calendar Case No.13 of 1998. The accused officer, who filed the present appeal, pursuant to a trap laid by the Anti Corruption Bureau, Anantapur branch, was charge sheeted for the offence under Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988, was tried for the said offences by the trial Court. At the conclusion of the trial, on hearing either side, the learned Special Judge passed the following order of conviction and sentence. “The accused Officer is sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1,000/- in default to suffer simple imprisonment for three months for offence under Section 7 of the Act and he is further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- for the offence under Section 13(1)(d) r/w 13(2) of the Act, in default to suffer simple imprisonment for three months”. Challenging the said order of conviction and sentence, the accused- Officer Sri S.Md.Yacoob, filed the present appeal. Subsequent to filing of the appeal, he died on 07.02.2009. Thereafter, vide orders in Crl.A.M.P.No.666 of 2009, S.Nazmunnisa, the wife of the deceased/appellant was granted leave by this Court to continue the Crl.A.No.1164 of 2003 as his legal representative. I have heard Smt.C.Vasundhara Reddy, learned counsel appearing for the appellant and Sri V.Ravi Kiran Rao, learned Special Public Prosecutor for A.C.B., Hyderabad. The brief facts leading to the filing of the appeal are stated as follows: PW.1, who gave the complaint to the ACB, is the son of one Kistappa, who worked as Accountant in the Municipal office, Ananthapur and died in the year 1995, while in service. PW.1 was given the post of Junior Assistant on compassionate grounds. Smt.B.Chinnamma, the wife of Kistappa applied for the pensionary benefits of her husband and certain arrears were due from the department on the date of incident. It is stated that the accused-Officer, who is the Accountant in Municipal Office, Anantapur demanded an amount of Rs.3,000/- as bribe from PW.1 for releasing the pension arrears. It is the version of the prosecution that PW.1 stated that he had only an amount of Rs.1500/- with him, then, the accused-Officer asked him to pay half of the amount ie., Rs.1500/- at first and the remaining amount after the work is done. PW.1, who was not willing to pay the bribe to the accused-Officer approached the D.S.P., ACB and made a complaint Ex.P.3 to him on 11.6.1997. Thereafter at 3.00 P.M. the complaint was registered as F.I.R. (Ex.P.13). By 4.00 P.M., the DSP, ACB secured the presence of two Government Officials viz., PW.2 and LW.2 as mediators and a trap was laid. As per the prosecution, PW.1 handed over the amount to the accused-Officer, he received the amount in the municipal office while sitting in his chair, placed it on a writing pad and kept it in the almyrah in the office room. Subsequently, DSP and mediators introduced themselves to the accused-Officer. The D.S.P. prepared fresh sodium solution through the Head Constable in two separate glass tamblers, the accused-Officer rinched his both hands and the test was found to be positive. Thereafter on completing investigation, a charge sheet was laid against the accused and he was tried by the special court. In the course of the trial before the Special Judge, the prosecution in order to establish the guilt of the accused examined PWs 1 to 9 and marked Exs.P.1 to P.16 and MOs.1 to 8. The accused-Officer examined on his behalf one Munisankaraiah as DW.1 and marked Exs.D.1 to D.5 on his behalf. The learned Special Judge on considering the entire evidence on record convicted and sentenced the accused-Officer as mentioned above. Now, the point for determination in this appeal is whether the conviction and sentence passed by the learned Special Judge can be sustained. The defence version of the accused-Officer as could be seen from what he stated before the DSP,ACB is that he never demanded any bribe from PW.1 but when PW.1 approached him and requested him to pay the amount of Rs.1,500/- to Sri G.M.Kailasapathi, Junior Assistant, Municipal Corporation, Kurnool, he received the amount from PW.1 for the purpose of handing over the same to the said Kailasapathy. The defence theory was not accepted by the learned Special Court. Crucial witness in this case is PW.3, the Section Clerk in Municipal Corporation, Anantapur at relevant time who was looking after the matters relating to payment of gratuity and pension. His evidence discloses that the mother of PW.1, ie., the widow of Kistappa presented an application for pension and gratuity, and they dispatched the said application to the Local Fund Office, Hyderabad on 16.08.1996. Sanction order dated 07.01.1997 was received in their office sanctioning an amount of Rs.65,000/- towards gratuity and Rs.60,694/- towards arrears of pension. On 23.4.1997, accused- Officer signed on the papers and sent them to the Commissioner. Then the Commissioner incharge endorsed on the file to place before the regular Commissioner. After the regular Commissioner took charge, the papers were signed by the accused-Officer on 14.5.1997 and were placed before the Commissioner on 16.05.1997. This witness admitted in the cross-examination that he endorsed for payment of Rs.60,694/- towards arrears of pension because of shortage of funds for making payment of Rs.65,000/- towards gratuity. He also admitted that the Commissioner in charge Sri Jayaram Reddy ordered to keep the matter pending till the arrival of new Commissioner. He also admitted that the file relating to the amount of Rs.60,694/- was handed over for encashment on 02.06.1997. His evidence further discloses that on 26.11.1996 onwards pension and gratuity were not paid to 16 retired persons. Similarly, PW.4, the Municipal Commissioner, Anantapur Municipality at relevant time stated in his deposition that the papers relating to pension and gratuity of the widow of Kishtappa were placed before him on 16.05.1997 and on the same day he approved the file and that he passed the orders on the bills. According to him he signed on the self cheque on 02.06.1997. Therefore, on the alleged date of trial, already cheque was signed by the Municipal Commissioner and there was no official favour due to be done by the accused-Officer in favour of PW.1. Although, PW.6 Sri G.M.Kailasapathi did not support the defence theory that any amount was due from PW.1 to him and that PW.1 handed over the said amount to the accused-Officer to be paid to him, the evidence of this witness in the cross-examination indicates that he had acquaintance with the accused-Officer as well as PW.1. Merely because PW.6 did not support the version of accused-Officer, and he was examined as a witness for the prosecution, the entire defence theory cannot be ruled out. For better appreciation of evidence, the entire evidence having regard to the nature and circumstances of the case has to be taken into consideration. PW.1 is a Junior Assistant and unless there is some official favour, which has to be done by the accused-Officer, it is most unlikely that he would give bribe and there would not be any occasion for the accused-Officer to demand bribe from PW.1. Admittedly on the date when PW.1 approached the accused- Officer, the cheque was issued and the accused-Officer need not do any favour to PW.1. Under these circumstances, it is highly difficult to believe that PW.1 paid the amount for the purpose of doing any favour and that the accused-Officer accepted the said amount for the said purpose. Since the accused-Officer admitted receiving of the amount from PW.1 for a different purpose as indicated above, the phenolphthalein test though proved to be positive, is of no consequence and on the said basis, it is not possible to conclude that the amount of Rs.1500/- was received by the accused-Officer as a bribe from PW.1. Further D.W.1, A.Munishankaraiah stated in his deposition before the trial Court that he used to attend the Municipal Counsel office daily as NMR and that on 10.6.1997 PW.1 came to the accused-Officer in the municipal office at about 12.00 noon and at 1.00 PM and enquired about the pension arrears and benefits payable to his mother, accused- Officer informed him that the pension arrears and two months pension have already been drawn by self-cheque on 2nd itself and the said amount is with Sharoof. Then according to D.W.1, PW.1 asked accused-Officer about the gratuity amount and the accused-Officer informed him that due to want of funds the same was not released and in that regard he can approach the Municipal Commissioner. D.W.1 also stated about P.W.1 paying the amount of Rs.1500/- on 11.06.1997 in his presence and that of the other staff members for the purpose of handing over the amount to one Kailashapathi, accused-officer keeping the amount in the almyrah and the ACB Officials rushing to the place and questioning the accused-Officer as to why he accepted the bribe from PW.1. DW.1 had given a categorical version as to the purpose for which the amount was given by PW.1 to the accused-Officer and his evidence also disclosed that on a previous day the accused-Officer made it clear to PW.1 that no work was pending with him in regard to the release of pension arrears in favour of PW.1’s mother. In the light of the above evidence, I am of the considered view that the explanation offered by PW.1 is more probable, particularly, in view of the fact that on the date of the alleged trap, no work was pending with him for doing any favour in connection with the arrears of pension relating to PW.1’s mother. The learned Special Judge in appreciating the evidence should have given equal treatment to the prosecution witnesses and D.W.1 and should have arrived at the decision considering the entire evidence. The learned Special Judge ought to have given benefit of doubt to the accused- Officer instead of finding him guilty for the above mentioned offences. For the aforesaid reasons, the conviction and sentence recorded by the trial Court against the accused-Officer can be sustained. Consequently, the conviction and sentence passed by the learned trail Court against the accused-Officer is set aside and he is acquitted of the offences under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The fine amount, if any, paid by him shall be refunded to PW.1. The Criminal Appeal is allowed accordingly. _________________ R.KANTHA RAO,J 26TH August, 2010 PNV