THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1286 OF 2002. DATED: 20-08-2009. Between: L.S.R. Patrudu … Appellant-accused and State through Spl. P.P. for ACB cases, High Court, Hyderabad. … Respondent/complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1286 OF 2002. JUDGMENT: This Criminal Appeal by the appellant-sole accused under Section 374 (2) Cr.P.C., is directed against the judgment, dated 13-11-2002, in C.C.No.38 of 1998, on the file of the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, whereunder and whereby the appellant was convicted of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.1,000/-, in default to undergo Rigorous Imprisonment for a period of three months under each count and both the sentences were ordered to be run concurrently. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The appellant-accused officer joined duty as Forest Range Officer, Kommavaram of Khammam District on 06-11-1997. On the mid night of 13-11-1997 P.W.1 was returning from Kothagudem in his jeep bearing No. APGT 7097 along with teak wood logs and four persons. The accused officer intercepted the jeep near Open Cast Coal Mines, Yellandu and seized the said jeep with teak wood logs as there were no documents or bills. The accused officer kept the seized jeep with teak wood logs in his Forest Range Office and released five persons next day after observing formalities. The accused officer levied compounding fee of Rs.46,919-30 ps on P.W.1 and P.W.1 paid the amount on 09-12- 1997 and obtained Ex.P1-receipt. The accused officer asked P.W.1 to secure release order from District Forest Officer. Kothagudem. P.W.1 obtained release order Ex.P2 from D.F.O. Kothagudem on 23-12-1997 and met the accused officer on 24-12- 1997 and handed over two copies of release order of the jeep and requested for release of the jeep. At that juncture, the accused officer demanded Rs.4,000/- for release of the jeep and he did not respond to the requests of P.W.1. Again when P.W.1 met him on 01-01-1998 and requested for release of the jeep, the accused officer reiterated his earlier demand of bribe and wanted to be paid by 03-01-1998. As P.W.1 was not willing to pay the bribe amount and without going to ACB office at Khammam went to ACB office at Hyderabad and met P.W.6 on 02-01-1998 at 2.000 P.M. and lodged Ex.P3 report, basing on which P.W.6 registered a case. P.W.6 asked P.W.1 to come to R & B guesthouse, Khammam on 03-01-1998. P.W.6 introduced the mediators P.W.3 and another and narrated the contents of Ex.P3 and also the original receipt for paying Rs.45,000/- towards cost of teak wood logs for release of the jeep. P.W.1 produced Rs.4,000/- which is intended bribe demanded by the accused officer. After following the formalities, P.W.6 directed P.W.1 and P.W.2 to accompany along with one Shabibullah Khan to the office of the accused officer. He instructed P.W.2 to give signal to the trap party by opening the buttons of his bush shirt in case the accused officer demanded and accepted the bribe amount from P.W.1. At 1.00 P.M. P.Ws. 1 and 2 along with P.W.6 left Yellandu in a jeep and reached that place at 2.30 P.M. P.W.6 parked the jeep near the office of the accused officer and asked P.Ws. 1 and 2 to go into the office. Accordingly, they went into the office and returned immediately and informed P.W.6 that the accused officer was not available. P.W.6 instructed P.Ws. 1 and 2 to go to the house of the accused officer, which is near the office. P.Ws. 1 and 2 went to the house and returned and informed P.W.6 that the wife of the accused officer informed them that he was not in the house and expecting around 4.30 P.M. After arrival of the accused officer at 4.30 P.M., they went inside the house and P.W.6 and others took their positions. P.Ws. 6 and 7 parked their Motorcycles in front of the house of the accused officer on the pretext of repairing it. At about 4.40 P.M. P.W.2 who accompanied P.W.1 came out and gave pre-arranged signal. Immediately, P.Ws. 6 and 7 and the mediator P.W.3 entered into the house and after disclosing their identity questioned the accused officer. After following the usual procedure of conducting the Chemical test, seized M.O.1- cash of Rs.4,000/-, Rs.3,205/- belonging to the accused officer’s salary which was returned to him and seized the pant of the accused officer under Ex.P7-mediators’ report. P.W.6 seized the copies of Ex.P2-letter passed by D.F.O. to release the jeep of P.W.1. He examined the accused officer and incorporated the same in the second mediators’ report. After obtaining sanction, charge sheet was filed. 3. The learned Special Judge framed the following charges against the accused: Firstly: That you, being a public servant employed as Forest Range Officer, Komavaram of Khammam District, on or about 03- 01-1998 at about 4.40 P.M. at your house at Yellandu as per your earlier demand, demanded and accepted an amount of Rs.4,000/- from Sri M.Ravi, Jeep driver, r/o Dornakal of Warangal District, as gratification other than legal remuneration as a motive or reward for showing official favour for the release of the jeep bearing No. APG T 7097 and thereby committed an offence punishable under Section 7 of the P.C.Act 1988. Secondly: That you, being a public servant employed as Forest Range Officer, Komavaram of Khammam District, on or about 03- 01-1998 at about 4.40 P.M. at your house at Yellandu by corrupt or illegal means or otherwise abusing your position as such public servant, demanded and obtained for yourself a pecuniary advantage to an extent of Rs.4,000/- from M.Ravi, Jeep Driver, r/o Dornakal of Warangal District for doing official favour for the release of jeep bearing No. APG T 7097 and thereby committed an offence specified under Section 13 (1) (d) of the P.C. Act, 1988 punishable under Section 13(2) of that Act.. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 7 and got marked Exs.P1 to P12 besides case property, M.Os.1 to 8. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, D.Ws. 1 and 2 were examined and Exs.D1 to D4 were marked. 6. The trial Court, accepting the evidence of P.Ws.1 and 2 found the accused officer guilty of the offence punishable under Section 7 of the Act and also accepting the evidence of P.Ws. 3 and 6, found him guilty under Section 13 (1)(d) r/w 13 (2) of the Act and accordingly convicted and sentenced him as above. Challenging the same, the accused officer preferred the present appeal. 7. Mr.E.V.Bhageeratha Rao, learned senior counsel appearing for the appellant-accused officer contended that there was no official favour to be shown to P.W.1 was pending as the District Forest Officer already ordered release of the vehicle, that the accused officer worked there for about 21 days and he caught hold of several persons who were illegally transporting teak wood logs, that P.W.1 was in the habit of smuggling the timber and that is the reason why, he did not ask for any fare from the four persons who were present in the jeep, that as P.W.1 is a poor person, how he gave Rs.4,000/- is not known, that if really the accused officer demanded the amount as alleged by P.W.1, he would have demanded at the time of paying compounding fee for seizure of teak wood logs, that when the accused officer allegedly demanded Rs.4,000/- on 24-12-1997, P.W.1 would have reported the same to the District Forest Officer who passed the release order, that though ACB office was located at Khammam, P.W.1 has not given any report at Khammam, that the persons who were illegally transporting the timber persuaded P.W.1 to lodge a false complaint against the accused officer because he was coming in the way of illegal transportation of teak wood, that because of timely checking of the vehicles, P.W.1 entertained grouse against the accused officer and he was chasing when the accused officer went to the office, that when the accused officer was not there, he went to the house and at that time, the accused officer was also not present in the house, that after 4.30 P.M. when the accused officer returned, P.W.1 caught hold of both hands of the accused officer saying his gratitude and thereupon thrusted the currency notes in the pant pocket and before realizing the same, the trap party came and seized the amount and hence, he prays to set aside the convictions and sentences recorded against the appellant-accused officer. 8. On the other hand, Mr.V.Ravi Kiran Rao, learned standing counsel appearing for ACB cases contended that the compounding fee has to be determined by the District Forest Officer and not by the accused officer, that in pursuance of the orders passed by the District Forest Officer, the accused officer has to release the vehicle and for releasing the vehicle, the accused officer demanded illegal gratification, that therefore, there is nothing unusual for the accused officer to demand P.W.1 the bribe amount, that the evidence of P.Ws. 1 and 2 is consistent with regard to receipt of money by the accused officer, counting the same and keeping it in the pocket, that there is no other reason for P.W.1 to foist a false case of this nature against the accused officer, that as P.W.6 was holding additional charge for Warangal Range, P.W.1 approached him at Hyderabad, that the theory of thrusting is highly improbable and the same has not been stated to P.W.6, that the evidence of P.Ws. 3 and 6 would go to show that when the both hand fingers of the accused officer were subjected to Sodium Carbonate Solution Test, it turned into pink colour, that similarly the inner lining of the pant pocket of the accused officer also turned into pink colour when subjected to test, that the seizure of illegal gratification was proved beyond doubt, that the trial Court after elaborate consideration of evidence on record, rightly convicted and sentenced the accused officer and hence, absolutely there are no grounds to interfere with the same. 9. Now the point that arises for consideration is whether the prosecution has proved its case against the appellant-accused officer of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 10. Section 7 of the Act reads thus: “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 reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disserve to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government company referred to in clause (c) of Section 2 or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.” Section 13 (1) (d) of the Act reads thus: “13. Criminal misconduct by a Public servant: (1) A public servant is said to commit the offence of criminal misconduct- (a) … (b)… (c)… (d) if he – (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;” Section 13 (2) of the Act reads thus: “Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine” 11. It is not in dispute that P.W.1 was running a jeep by taking it on lease from the owner and he has taken the jeep to ply from Dornakal to Kothagudem on hire. Though he is not willing to go along with four persons, they threatened him and loaded teak wood logs forcibly and sat down in the jeep and asked him to take them to Justipalli village. When they reached near the place, forest officials seized the jeep and took it to Yellandu forest office. The accused officer informed P.W.1 that he has to pay Rs.49,919/- towards compounding fee. On 09-12-1997, he went to the office of the accused officer and paid the amount under Ex.P1- receipt. At that time he requested the accused officer to release the jeep. Then the accused officer advised him to get release order from the District Forest Officer, Kothagudem. On 23-12- 1997 he went to Kothagudem office for obtaining release order. On 24-12-1997, in the morning he went to the office of the accused officer with release order. Three copies of release order have been taken and the accused officer has also taken the signature of P.W.1 on the two release orders. When P.W.1 requested the accused officer to release the vehicle, the accused officer stated that unless he pays Rs.4,000/-, he would not release the jeep. Though he expressed his inability to pay the amount, the accused officer stated that unless he pays that amount, he will not release the vehicle. Again on 01-01-1998, P.W.1 went to the house of the accused officer in the evening and requested him to release the vehicle. The accused officer reiterated his demand for Rs.4,000/-. As P.W.1 was not willing to pay that amount, he went to P.W.6 and lodged Ex.P3-complaint on 02-01-1998, who registered a case against the accused officer on 03-01-1998. P.W.6 called P.W.3 and another and prepared Ex.P6-pre-trap proceedings duly noting down the numbers and denomination and also applying phenolphthalein powder. Then P.W.6 directed P.W.1 to give the amount on demand made by the accused officer. P.W.1 also took his friend P.W.2 with him to the office of the accused officer, but the accused officer was not present there. As the house of the accused officer was in the vicinity of the office, they went to the house. In the house also, he was not present. Wife of the accused officer informed P.Ws. 1 and 2 that the accused officer would come at 4.30 P.M. Then they returned back to the trap party, the place where the trap party were in vantage position and informed the same. The trap party headed by P.W.6 advised them to wait till the arrival of the accused officer and at about 4.30 P.M., the accused officer was present. When some forest guards came to the house of the accused officer, they were sent away saying that they can come and meet him on the next day. When the accused officer asked P.W.1 whether he brought the amount of Rs.4,000/-, P.W.1 stated in the affirmative. Then the accused officer asked him to give that amount. When P.W.1 gave it with his right hand, the accused officer took it with his right hand, counted it with his both hands and kept it in his right hip pant pocket. On receipt of pre-arranged signal, the trap party went there and when conducted Sodium Carbonate Solution Test on both hand fingers of the accused officer, the solution turned into pink colour. Similarly the inner lining of the pant pocket of the accused officer when subjected to test, it also turned into pink colour. Thereafter, M.O.1-tainted currency notes were seized and Ex.P7-post-trap proceedings were drafted. 12. If the evidence of P.Ws. 1 and 2 is to be accepted, who have no axe to grind against the accused officer, then it can be acted upon. The evidence of P.Ws. 1 and 2 is consistent with regard to accused officer demanding an amount of Rs.4,000/-, P.W.1 giving the amount, accused officer counting the same with both hands and keeping the same in his right hip pant pocket. No doubt, it is contended that P.W.1 was doing illegal transportation of teak wood logs, but that was not substantiated with any evidence. Except giving suggestion that he was doing smuggling of teak wood, nothing has been elicited. 13. Learned counsel appearing for the accused officer contended that because P.W.1 was one of the smugglers, he did not ask and collect fare from the four persons. But as seen from the evidence of P.W.1, it is clear that it is not a case where P.W.1 agreed to ply the vehicle on hire charges. Four persons threatened him to ply the vehicle after loading the teak wood logs. Therefore, for that reason, it cannot be said that P.W.1 was one of the smugglers. It is the case of P.W.1 that teak wood logs does not belong to him, still he paid compounding fee of Rs.49,919/-. If really, P.W.1 was not concerned with the teak wood logs, there was no need for him to pay compounding fee of Rs.49,919/-. From his evidence, it can be said that he was transporting the timber along with four persons in the jeep illegally, but that does not mean on that ground, the evidence of P.W.1 has to be rejected. If the evidence of P.W.1 is otherwise found to be acceptable and reliable and there is no ill-will or animacity against the accused officer so as to implicate in a case of this nature, then his evidence can be accepted. He already paid compounding fee and that amount was determined by the District Forest officer, but not by the accused officer. Therefore, the question of demanding bribe amount at the time of imposing compounding fee may not arise because he is not the competent authority. In view of the fact that the District Forest Officer already passed release order directing the accused officer to release the vehicle after obtaining receipt from the owner, there is possibility for the accused officer to demand some amount for release of the vehicle because the vehicle was under the exclusive control of the accused officer at that time who was working as Forest Range Officer. Unless he gives permission, the vehicle will not be released to the owner. So that is the favour to be shown to P.W.1 by the accused officer was pending. For that reason, there is every scope or possibility for the accused officer to demand P.W.1 to pay some amount. It is in the evidence that on 24-12-1997 when P.W.1 went there, the accused officer asked him to pay Rs.4,000/- to release the vehicle and again on 01-01- 1998, the accused officer reiterated his demand. But in the cross- examination, P.W.1 admitted that the accused officer did not demand to pay Rs.4,000/- on 24-12-1997, but on the next day he made demand for the first time. In the chief-examination, he stated that the demand was made on 24-12-1997. That appears to be inadvertent mistake made by P.W.1 because in the earliest report-Ex.P3, it is clearly mentioned that the accused officer asked him to pay Rs.4,000/- for release of the vehicle. The earliest version is completely in corroboration with the evidence of P.W.1. Therefore, from the evidence of P.W.1, it is clear that on 24-12-1997, the accused officer asked him to pay an amount of Rs.4,000/- to release the vehicle. 14. P.W.2 who is the accompanying witness is no doubt a close friend of P.W.1. Mere friendship or relationship by itself is not a ground to discredit the testimony of P.W.2. P.W.2 withstood the test of cross-examination. He categorically stated that when both went to the office of the accused officer, the accused officer was not there and thereafter, they went to the house of the accused officer, but in the house also he was not there. Then again at 4.30 PM when they went to the house, accused officer came there and asked P.W.1 whether he brought the amount. Then P.W.1 took the amount and gave it to the accused officer, who counted the same and kept it in the pant pocket. There is no grouse or enmity for P.W.2 to speak false against the accused officer. 15. Coming to the recovery, the evidence of P.Ws. 3 and 6 would go to show that the Sodium Carbonate Solution Test conducted on the hands proved to be positive and the amount was taken out from the pant pocket and handed over the same to P.W.6, who seized the same under Ex.P7. When P.W.6 questioned the accused officer whether he received the amount from P.W.1, the accused officer nodded his head. If really P.W.1 shoved the amount in the pant packet of the accused officer, he would have stated the said fact in the earliest opportunity to P.W.6. When the accused officer accepted the amount as a motive or reward for showing an official favour and it has been proved by the prosecution, the burden shifts to the accused officer under Section 20 of the Act. Under Section 20 of the Act, the word ‘unless contrary is proved’ would mean there must be a plea and evidence. Mere explanation is not sufficient. There cannot be any dispute that the accused officer can discharge the burden placed on him in view of Section 20 of the Act by adducing evidence or showing in the evidence of prosecution witnesses by preponderance of probability. There is no such evidence. 16. It is contended by the leaned counsel appearing for the accused officer that it is stated by the accused officer with regard to thrusting of notes in the pant pocket and the same was not incorporated in Ex.P7. Suggestion was given to P.W.6 on that aspect. But there is no other reason for P.W.6 in not incorporating the earliest version of the accused officer in ExP7. P.Ws. 3 and 6 have categorically stated that what the accused officer stated, the same was incorporated in Ex.P7 and if really, the same was not incorporated, the accused officer would not have received Ex.P7 copy duly acknowledging the same. Therefore, the theory of thrusting is an after thought and the same cannot be accepted. 17. To show that the amount was thrusted in the pant pocket of the accused officer, two witnesses were examined who said to have been present at that time. No doubt, they have stated that P.W.1 thrusted the amount in the pant pocket of the accused officer, but at the same time their presence at the time of accepting the amount is very much doubtful. If really they were present in the house, when trap party headed by P.W.6 went into the house, they would have noticed them and their presence would have been mentioned in Ex.P7. Similarly P.W.3 who is the independent mediator accompanying trap party found the accused officer and P.W.1 alone in the house. He would have stated about the presence of D.Ws. 1 and 2 in the house if really they were present. Therefore, the presence of