HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.No.1053 of 2003 Date: 03-06-2010 Between: Goothy Vijayabhaskar ……… Appellant and State represented by ACB, Nellore. ………… Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.No.1053 of 2003 JUDGMENT: This Appeal is directed against the Judgment, dated 18-09-2003 in C.C.No.8 of 1998 passed by the Special Judge for SPE & ACB Cases, Nellore (hereinafter referred to as ‘learned Special Judge’), whereby and whereunder the Appellant herein was found guilty of the offences punishable under Sections 7, 11 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and convicted and sentenced to undergo imprisonment for one year on each count, besides payment of fine of Rs.1,000/- on each count, and in default of payment of the fine amount, to undergo simple imprisonment for a period of three months under each count. The substantive sentences were ordered to run concurrently. 2. The Appellant will be referred to as Accused Officer hereinafter for the sake of convenience. 3. The brief facts of the case are as follows: The Accused Officer was working as Health Assistant-cum- Sub-Registrar of Births and Deaths in Nellore Municipal Office during the relevant period. PW-4, Mypati Nagarajamma, is a resident of Nawabpet, Nellore, and her husband, by name Mypati Subba Rao, died on 20-03-1997. An amount of Rs.2,500/- was lying in the name of late Mypati Subba Rao in the State Bank of Hyderabad, Nellore. When PW-4 approached the bank authorities for withdrawal of the said amount, she was informed that the death certificate of her husband late Mypati Subba Rao was required. Then she approached PW-1, who is her maternal uncle’s son, to obtain the death certificate of her husband from the municipal office. 4. On 26-05-1997, PW-1 went to municipal office, Nellore. He prepared an application for obtaining the death certificate and obtained challan for Rs.13/- from the municipal office and inserted the application in the relevant box kept for that purpose. He was informed that the authorities would send the death certificate to PW-4, the wife of late Mypati Subba Rao. As there was no communication from the municipal office for about five months, PW-1 went to municipal office on 13-10-1997 and approached the Accused Officer, who was working as Sub-Registrar of Births and Deaths. The Accused Officer informed PW-1 that he was leaving the office on some urgent work and directed PW-1 to meet him on the next day morning i.e., on 14-10-1997. Accordingly on 14-10-1997, at about 08-00 AM, PW-1 went to the house of the Accused Officer. Then the Accused Officer informed PW-1 that he had to pay an amount of Rs.250/- towards expenses including the costs for delayed application, notarized affidavit etc., and directed him to come to the District Court Premises, Nellore at about 10-30 AM on the same day. Accordingly, PW-1 went to the District Court Premises, Nellore and paid Rs.250/- to the Accused Officer. Then the Accused Officer obtained the signature of PW-1 on the corresponding challan and affidavit, and prepared two applications, one for paying the challan and another for obtaining the death certificate. Ex.P-1 is the Application, dated 14-02-1997 for obtaining the death certificate. Ex.P-2 is the Application for registering the death of Mypati Subba Rao. Ex.P-3 is the Affidavit signed by the Notary. Ex.P-4 is the challan form. Exs.P-5 and P-6 are Form No.4 in duplicate and triplicate, dated 14-10-1997. PW-1 signed on all those documents. 5. The Accused Officer, after obtaining the signatures of PW-1, demanded him an amount of Rs.500/- towards bribe for issuing the death certificate. According to PW-1, he informed the Accused Officer that PW-4, the wife of Mypati Subba Rao, was not in a position to pay the bribe amount. However, the Accused Officer demanded to pay Rs.250/- and PW-1 agreed to pay the said amount. The Accused Officer also wanted PW-1 to get 100 visiting cards printed in his name in the printing press where PW-1 was working, and further directed PW-1 to meet him in his office at 03-00 PM on 15-10-1997 along with 100 visiting cards and Rs.250/-. The Accused Officer also gave his name and address, which is Ex.P-7, for preparing the visiting cards. According to PW-1, he informed the demand of the Accused Officer to PW-4, the wife of Mypati Subba Rao and discussed the matter and decided to report the same to the ACB officials. Then PW-1 prepared Ex.P-8, report, on 14-10-1997 and met PW-9, who was working as DSP, ACB during the relevant period, and presented the same to him on the same day. PW-9 directed PW-1 to get the visiting cards printed and bring them to his office on 15-10-1997 at about 01-00 PM along with Rs.250/-. Then PW-1 got printed the visiting cards in Himabindu Printers, Mulapet, Nellore, by paying Rs.80/- and obtained the bill in Ex.P-9, dated 14-10-1997. PW-1 visited the office of PW-9, the DSP, ACB, on 15-10-1997 at about 01-00 PM. Having received the complaint from PW-1, PW-9 made confidential enquiries and registered it as Crime No.7/ACB-NLR/97 and issued FIR in Ex.P-23. He secured the presence of PW-8 and another person as mediators and introduced PW-1 to the mediators and vice versa. The mediators, having gone through the contents of the FIR, ascertained the facts from PW-1. Then PW-1 produced Rs.250/- in Rs.50/- denomination of five notes (M.O.3) and also a small box containing visiting cards (M.O.1) and the bill. As per the instructions of PW-9, a Constable prepared sodium carbonate solution and the importance of the sodium carbonate test was explained and demonstrated to the mediators. The currency notes were tainted with phenolphthalein powder and were kept in the left upper shirt pocket of PW-1 after ascertaining that nothing remained in the said pocket. PW-1 was instructed to handover the tainted currency notes to the Accused Officer only on his demand. What all transpired during that time was incorporated in the first mediators report marked as Ex.P-18. Then PW-1, along with PW-8 and other trap party members, proceeded to the office of the Accused Officer. Another mediator came on his scooter. 6. After reaching the office of the Accused Officer, PW-1 proceeded towards the office of the Accused Officer and the other trap party members had taken vantage positions. When PW-1 entered into the office of the Accused Officer, the Accused Officer was talking with another person, and therefore, PW-1 waited outside for 15 minutes. Then the person, who was talking with the Accused Officer, left the place and PW-1 went to the Accused Officer and asked about the death certificate of his paternal uncle late Mypati Subba Rao. Then the Accused Officer demanded the bribe amount and visiting cards. PW-1 removed the tainted currency notes from his left side shirt pocket and handed over the same to the Accused Officer. The Accused Officer counted the currency notes with his both hands and kept the same in his left side shirt pocket. Then PW-1 handed over the box containing 100 visiting cards. The Accused Officer opened the box and read the contents of the visiting card and kept four cards in his left side shirt pocket and kept the remaining cards along with the box inside the almyrah. Then the Accused Officer prepared the death certificate and signed it and asked PW-1 to wait for some time to enable him to obtain the signature of the Health Officer on the death certificate. Ex.P-10 is the death certificate prepared by the Accused Officer. In the meanwhile, PW-1 came out of the office and gave prearranged signal to the trap party. 7. The trap party headed by PW-9, DSP, ACB, rushed towards the Accused Officer and asked PW-1 to wait outside. Then PW-9 introduced himself to the Accused Officer and prepared sodium carbonate solution in two glass tumblers and both the hand fingers of the Accused Officer were subjected to sodium carbonate test separately and the respective solutions turned to pink colour. On the demand of PW-9, the DSP, ACB, the Accused Officer had taken out the tainted currency notes from his left upper shirt pocket. PW-8, the mediator, verified the numbers of the currency notes with the numbers noted in the pretrap proceedings in Ex.P-18 and found them tallied. The inner lining of the shirt pocket of the Accused Officer was also subjected to sodium carbonate test and it gave positive result. Some papers, which were in the shirt pocket of the Accused Officer and came in contact with the tainted currency notes, were also subjected to sodium carbonate test and the result was positive. The Accused Officer was also having Rs.3,550/- cash in his shirt pocket and it was returned to him. Then the tainted currency notes, four visiting cards available in the shirt pocket of the Accused and other visiting cards, the Applications, dated 14-10-1997 of PW-1, the death certificate under preparation, the extract of the register of births and deaths and some other records i.e., Ex.P-2 to P-6, P-12 to P-16 and P-24 were seized. The rough sketch of the scene of offence was also prepared. What all transpired was incorporated in Ex.P-22, second mediators report, including the gist of the statement of the Accused Officer and PW-1. After obtaining necessary sanction, the charge sheet was filed against the Accused Officer. 7. Since the Accused Officer denied the charges framed against him, the prosecution, in order to prove it’s case, examined PWs.1 to 11 and got marked Exs.P-1 to P-26 and M.Os.1 to 11. On behalf of the Accused officer, none were examined and no documents were marked. 8. The learned Special Judge, after considering the entire evidence, accepted the case of the prosecution and convicted and sentenced the Accused Officer as referred above. 9. Sri C. Padmanabha Reddy, the learned senior counsel appearing for the Accused Officer, mainly submitted that PW-1 was an informer to the ACB and that he is an Accused in a case for the offence under Section 307 of IPC and that he had previously acted as a decoy in one ACB case and therefore, he is wholly an unreliable witness and his evidence cannot be relied upon. It is also submitted that PW-1 had already collected Rs.250/- from PW-4 in May, 1997 and he did not spend the amount and this also shows that PW-1 is not a reliable witness. It is further submitted that PWs.1 and 2 are highly interested witnesses and that the Accused Officer was falsely implicated in this case at the instance of one Surendranath, former Sub-Registrar of Births and Deaths, Division-II, who was transferred and in whose place the Accused Officer was posted. It is his further submission that the Accused Officer never demanded any bribe amount and that the evidence of PW-1, who was working as Health Officer in Municipal Office, Nellore, shows that Ex.P-13, proceedings, were prepared on 14-10-1997 i.e., prior to the date of trap and this shows that the alleged demand of the Accused Officer is false. It is submitted that if at all the Accused Officer had demanded the amount of Rs.250/-, he would have waited and not forwarded the Applications for issuing Ex.P-13, proceedings. He further submitted that mere recovery of tainted currency notes is not sufficient to prove the case of the prosecution and the demand made by the Accused Officer must be proved by the prosecution with cogent evidence and in the absence of proof of demand, even if the prosecution proves the recovery of tainted currency notes, it is not sufficient to convict the Accused Officer. It is also his submission that the sanction order does not contain the seal of the office, which issued the same, and that the authority, who issued the sanction order, seems to have not put the date beneath his signature and that no person concerned to the sanction order has been examined. It is further submitted that even according to PW-10, the concerned file was missing, and in the absence of the seal of the office, the sanction proceedings cannot be treated as valid and when the sanction itself was not valid, all subsequent proceedings become illegal. 10. Sri V. Ravi Kiran Rao, the learned Special Public Prosecutor for ACB, submitted that the sanction order was issued on 16-03-1998 and it contains the date in its first page and also the signature of the Principal Secretary to Government, Municipal Administration and Urban Development Department, and therefore, there cannot be any doubt about the sanction order. It is his further submission that the evidence of PW-10 shows that he has identified the signature of Sri N.S. Hariharan, the then Principal Secretary in the Municipal Administration and Urban Development, who was the sanctioning authority, and when the signature of the sanctioning authority has been identified by PW-10, merely because the sanction order does not contain the seal of the said Principal Secretary, the same cannot be doubted. It is also his submission that the files were lost during the floods in August, 2000, whereas the sanction order was issued on 16-03- 1998 and therefore, the subsequent loss of the concerned file cannot be a ground to doubt the sanction order. It is further submitted that though PW-10 was not concerned with the Section, which processed the sanction order, nevertheless he identified the signature of Sri N.S. Hariharan, who signed the sanction order. It is further submitted that there is nothing on record to say that any prejudice has been caused to the Accused Officer and in the absence of any plea of prejudice, the sanction order cannot be questioned, even if there are irregularities in issuing the same. It is further submitted that the evidence of PW-1 cannot be discarded merely because he is involved in a case filed for the offence under Section 307 of IPC or that he acted as a decoy in another case filed by the ACB. It is further submitted that late Mypati Subba Rao, the paternal uncle of PW-1, died in March, 1997 and that PW-4 was in need of death certificate and therefore, PW-1 submitted an application on 26-05-1997 along with challan, but, however, it was not processed and therefore, he again approached the Accused Officer on 13-10- 1997. His main submission is that if at all PW-1 wanted to implicate the Accused Officer in a false case, he would not have waited for about five months for obtaining the death certificate. It is further submitted that there is no enmity between the Accused Officer, PW-1 and other mediators and there was no need for them to implicate the Accused Officer in a false case. The suggestions given on behalf of the Accused Officer attributing some motive to PW-1 cannot stand to scrutiny. It is further argued that when the tainted currency notes have been recovered from the Accused Officer and when his both hand fingers were rinsed in the sodium carbonate solution, the result was positive, and when there is no spot explanation given by the Accused Officer, the presumption under Section 20 of the Act can be validly drawn. It is also his submission that the evidence of PW-1 and other connected documents clinchingly establishes the demand and acceptance of the bribe amount by the Accused Officer and there is nothing to interfere with the well-reasoned judgment passed by the learned Special Judge. 11. In the light of the above rival contentions, the points that arise for consideration are: 1. Whether the evidence of PW-1 is reliable; and 2. Whether there is valid sanction order to prosecute the Accused Officer. POINT NO.1: 12. It has to be seen whether PW-1 is wholly an unreliable witness or whether his evidence cannot be accepted. The suggestions given to PW-1 go to show that one Surendranath, who was working as Sub-Registrar of Births and Deaths, Division-II, was removed from service and in his place the Accused Officer was posted as in charge of that division and therefore, the said Surendranath developed grudge against the Accused Officer and conspired with PW-1 by paying heavy amount to file the false case against the Accused Officer. There is nothing on record to show that there was any connection between PW- 1 and the said Surendranath. 13. According to PW-3, Penubarthi Mahalaxmi Prasada Rao, who worked as Assistant Stastical Officer in Nellore Municipality from June, 1994 to May, 2001, on 26-05-1997 he received the Application filed by PW-1 for issuing the death certificate to his junior paternal uncle, late Mypati Subba Rao, along with challan for Rs.13/-. He says that as per his directions PW-7, Sriramulu, who was working as Attender in Nellore Municipality, made entries in the copy application register at serial No.1309. The register was marked as Ex.P-11 and the entry was marked as Ex.P-11 (a). At that time Surendranath was working as Sub-Registrar of Births and Deaths of Division-II. The Application has to be sent to the said Surendranath, but Ex.P-11 shows that the signature of the said Surendranath was not obtained. According to PW-3 he did not enquire with the said Surendranath, former Sub-Registrar of Birth and Deaths, about the earlier application of PW-1, dated 26-05-1997. Admittedly, only in July, 1997, the Accused Officer was posted as in charge of the office of the Sub-Registrar, Division-II in the place of Surendranath, after he was transferred from the said post. If at all the version of the Accused Officer that PW-1 had some connection with the said Surendranath or that he was acting as per the directions of Surendranath, is true, the application filed by PW-1 would not have been kept pending during the resume of Surendranath. Admittedly the application of PW-1 was not processed during the period when Surendranath was acting as Sub-Registrar of Birth and Deaths. Therefore, these circumstances clearly show that the suggestion given by the Accused Officer that PW- 1 was in collusion with the said Surendranath falls to ground. 14. Admittedly there is no other dispute between the Accused Officer and PW-1. No other motive was attributed to PW-1 to implicate the Accused Officer falsely in this case. Of course the evidence of PW-1 shows that he is an Accused in a criminal case filed by IV Town Police Station, Nellore, for the offence under Section 307 of IPC. PW-1 has also admitted that he had set up a Chalivendram near IV Town Police Station, Nellore, in the name and style of Umesh Chandra, IPS, and the said Chalivendram was opened by the Sub-Inspector of Police, IV Town Police Station, Nellore. He has also admitted that he is a witness in a case of trapping of one Bill Collector namely Ghouse Basha of Nellore Municipality by ACB people. Of course these admissions of PW-1 go to show that he has got some close connections with the police officers and that he is an admirer of late Umesh Chandra, IPS. Of course he was a decoy in a former case filed by ACB. Merely because PW-1 had earlier acted as a decoy in an ACB Case or that he had some connection with police officers, whether, on that score, his evidence should be discarded and whether the same makes him an unreliable witness. In the circumstances, it may be reasonable to hold that PW-1 cannot be taken as a wholly reliable witness, but at the same time, it cannot be said that he should be treated as wholly unreliable witness. In the circumstances, it appears that he should be treated as an interested witness and his evidence has to be appreciated with great caution. It is settled law that the evidence of an interested witness cannot be discarded, but it may be accepted if there is corroborative evidence to the evidence of such witness. Now we have to see whether there is any corroborating evidence to the evidence of PW-1 and whether the facts and circumstances of the case make the prosecution version acceptable. 15. As discussed above, except the suggestion to PW-1 that he was acting as per the directions of one Surendranath, former Sub- Registrar of Births and Deaths of Division-II, no other motive has been attributed to PW-1. 16. Coming to the facts, admittedly late Mypati Subba Rao died on 20-03-1997, and an amount of Rs.2,500/- was lying in his bank account. PW-4, the wife of late Mypati Subba Rao, was in need of the death certificate of her husband to withdraw the said amount, since the bank officials were insisting for the same. Admittedly PW-1 is related to PW-4. PW-4 seems to have approached PW-1 for obtaining the death certificate. According to PW-1, on 26-05-1997, he prepared an application and obtained challan for Rs.13/- from the municipal office and inserted the application in the relevant box kept for that purpose. Admittedly, the application of PW-1, dated 26-05-1997 was entered in the register. PW-7, who was working as Attender in the Nellore municipal office, deposed that he had filled up the contents in Ex.P- 11(a) on 25-09-1997 as per the directions of PW-3. So admittedly the application was entered in Ex.P-11 register, but it was not processed. It was not placed before the concerned Sub-Registrar of Births and Deaths of division-II i.e., before the Surendranath, former Sub- Registrar of Births and Deaths. According to PW-4, she waited for four and half months, but she did not receive the death certificate of her husband and therefore, she again approached PW-1 and according to PW-1, when he met the Accused Officer on 13-07-1997, the Accused Officer asked PW-1 to meet him on the next day morning at his residence. The evidence of PWs.1 and 7 shows that on 14-07-1997, PW-1 and the Accused went to the District Court premises and prepared Exs.P-1 to P-6 and notarized the affidavit of PW-1. According to PW-1, the Accused Officer, after obtaining the signatures of PW-1 on the relevant papers, asked him to pay Rs.500/- as bribe. When PW-1 replied that his uncle’s wife (PW-4) is not in a position to pay the bribe amount, the Accused Officer reduced the amount to Rs.250/-. The Accused Officer also asked PW-1 to get 100 visiting cards printed in his name and directed to meet him on 15-10-1997 at about 03-00 PM. According to PW-4, PW-1 informed her about the demand made by the Accused Officer and since both of them are not willing to pay the bribe amount, they wanted to report the matter to the concerned ACB people. Then PW-1 got prepared a report and submitted the same to PW-9, the DSP, ACB. 17. The only circumstance pointed out by the learned senior counsel is that Ex.P-13, proceedings, were ready by 14-10-1997 and the issuing of death certificate was nothing but a sure consequence after issuing Ex.P-13, proceedings, and therefore, there was no occasion for the Accused Officer to demand any bribe amount and there was no need for PW-1 to pay the same. According to PW- 11, Karimeti Seenivasulu, who was working as Health Officer in Nellore Municipality during the relevant period, he issued Ex.P-13, thereby registered the death of Mypati Subba Rao. According to him, after issuing Ex.P-13, the Accused Officer had to make corresponding entry in Ex.P-24, register, and has to send the applications made for issuing the corresponding death certificate, and he has to issue the corresponding death certificate basing upon the entry made in the register. 18. According to PW-3, on 14-10-1997 at about 10-00 AM, the Accused Officer approached him and submitted Exs.P-2 to P-6 i.e., late registration application, Public notary affidavit, late fee challan and death report in form No.4 in duplicate and triplicate respectively. He says that basing upon the previous entry he gave old number to the new application in Ex.P-1 and forwarded the documents to the Accused Officer. Ex.P-1(a) is the endorsement made by him on the back of Ex.P-1 in that context. He says that he had put up a note separately for the registration of the death and that on the same day, the Deputy Statistical Officer and Municipal