IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1128 OF 2002 Between: M. Chandra Sekhar Rao ..... Petitioner/Accused AND State - A.C.B. ..... Respondent/Complainant The Court made the following: JUDGMENT: This criminal appeal, under Section 374 (2) of the Cr.P.C., 1973, is directed against the judgment, dated 08.10.2002, in C.C.No.24 of 1998, on the file of the learned Principal Special Judge for SPE & ACB Cases, Hyderabad, whereunder and whereby, the appellant was found guilty under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’), and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.1,000/- in default of payment of fine, Rigorous Imprisonment for a period of three months under each count. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: P.W.1 is a Civil Assistant Surgeon working at M.G.M. Hospital, Warangal. He was also running a clinic at Warangal since 1991. P.W.1 was having one Compoundar-cum-Attender by name Kumaraswamy at his clinic engaged with a monthly salary of Rs.1,000/-. Due to his misbehaviour, P.W.1 terminated him from services on 25.12.1995. Later, he filed a case No.2 of 1996 against P.W.1 at Labour Court, Warangal. It is alleged that P.W.1 attended the Court on 07.11.1996 and gave evidence. Thereafter, he received phone calls from the Accused Officer stating that if P.W.1 came and met him, he would settle the matter. But P.W.1 did not meet him. It is said that on 31.01.1997, a final judgment was delivered in the above case directing P.W.1 to deposit Rs.28,680/- in the Labour Court. P.W.1 explained the situation to P.W.2 who is also a Doctor. On 27.02.1997, P.Ws.1 and 2 went to the office of the Accused Officer and met him. The appellant is alleged to have demanded Rs.10,000/- as bribe to change the judgment and he advised P.W.1 to file a review petition through an Advocate. On 14.03.1997, P.W.1 filed a review petition. On 18.03.1997, P.Ws.1 and 2 again met the Accused Officer in his office-cum-residence. There the Accused Officer again demanded an amount of Rs.10,000/-. P.W.1 expressed his inability to pay the same and requested him to reduce the amount. Then the Accused Officer reduced the amount from Rs.10,000/- to Rs.8,000/-. Unwilling to pay that amount also, on the same day, he met the Deputy Superintendent of Police, ACB, Warangal, and lodged a report, which is marked as Ex.P1. P.W.8, the then Deputy Superintendent of Police, ACB, Warangal, basing on the complaint given by P.W.1, registered a case in Crime No.3 of 1997 for the offences under Sections 7 and 11 of the Act and issued First Information Report, which is marked as Ex.P17. On the next day, i.e., on 19.03.1997 at about 7.00 a.m., P.W.1 and the mediators were called and were introduced to each other, the contents of the complaint were read over to P.W.1. Thereafter, P.W.1 handed over Rs.8,000/- to P.W.8, the serial numbers of said currency notes were noted and then Phenolphthalein powder was smeared on the currency notes. Thereafter, the importance of the Phenolphthalein powder was explained to P.Ws.1 and 2. The currency notes were kept in a cover and the same was placed in the pant pocket of P.W.1. Ex.P2 is the first mediator’s report. Thereafter, at about 8.30 a.m., P.W.1 and the trap party started from the Deputy Superintendent of Police office and reached the office of the Accused Officer within 5 minutes. Then P.W.8 and other trap party took their vantage positions and at about 8.40 p.m., P.Ws.1 and 2 went to the office-cum-residence of the Accused Officer and enquired him as to what happened to his case. Then, the Accused Officer questioned P.W.1 whether he brought the amount and then took them to his bedroom. P.W.1 gave the cover containing currency notes to the Accused Officer. The Accused Officer removed the money from the cover, counted it and kept it back in the cover. Thereafter, he placed the cover on the cot. Meanwhile, P.W.2 went out and gave the signal. On receiving the pre-arranged signal, P.W.8 and other trap members rushed to the bedroom, where P.W.8 introduced himself to the Accused Officer and questioned him about the money which he had just then received from P.W.1. P.W.8 then got prepared the Sodium Carbonate Solution in two different tumblers and made the Accused Officer to rinse his both hand fingers in two tumblers separately which turned into pink colour. Thereafter, the Accused Officer was asked to produce the amount which he received. Upon that, the Accused Officer stated that P.W.1 had thrown one envelop on his bed in his room and lead the trap party to his bedroom and shown the envelop which was on the bed. Then the serial numbers of the currency notes were verified, which tallied with the currency notes in Ex.P2. The bed sheet was subjected to the Sodium Carbonate Solution Test which gave positive result. The Resultant Solution of hand wash and the bed sheet were preserved, which are marked as M.Os.5 to 7 and 9. P.W.8 then examined the Accused Officer and incorporated what all is stated by him in the 2nd mediator’s report, which is marked as Ex.P3. Thereafter, P.Ws.1 and 2 were examined. After conclusion of Ex.P3, the Accused Officer was asked to produce the file pertaining to P.W.1, but he could not produce the same as it was with one Venkateswara Rao, the Senior Assistant, who was on leave. Ex.P4 is the rough sketch of the scene. Then with the help of his Junior Assistant-Lakshmi and key maker, the almyrah of Venkateswara Rao was opened and the file of P.W.1 containing 1 to 51 pages was seized under Ex.P6-Panchanama. The inward and outward register, which is marked as Ex.P13, was also seized. The Panchanama which is drafted at the scene of Venkateswara Rao is marked as Ex.P7. During the course of investigation, P.W.8 examined P.Ws.4, 6 and other relevant witnesses. Then on 22.03.1997, he examined Venkateswara Rao, got opened his almyrah and a seizure report was prepared at his seat. After completion of investigation and after obtaining sanction order-Ex.P16, P.W.8 filed charge sheet. 3. The learned Principal Special Judge for SPE & ACB Cases, Hyderabad, framed the following charges against the Accused Officer: “Firstly: That you being a public servant employed as Assistant Commissioner of Labour, Warangal-II on or about 19th day of March, 1997 at 8.40 p.m. at your office-cum-residence situated at Srinivasanagar, Balasamudram road, Hanamkonda, as per your earlier demand, demanded and accepted an amount of Rs.8,000/- (Rupees eight thousand only) from Dr. A.V.Mohan Reddy, S/0. A.Kista Reddy, Assistant Civil Surgeon, M.G.M. Hospital, Warngal, as gratification other than legal remuneration as a motive or reward for showing official favour i.e., for giving favourable orders/judgment in his favour in Case No.2/96 File No.C/233/96 and thereby you committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. Secondly and Lastly: That you being a public servant employed as Assistant Labour Commissioner, Warangal-II on or about 19th day of March, 1997 at about 8.40 p.m. at your office-cum- residence situated at Srinivasanagar, Balasamudram road, Hanamkonda, by corrupt or illegal means or otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs.8,000/- (Rupees eight thousand only) from Dr. A.V.Mohan Reddy, Assistant Civil Surgeon, M.G.M. Hospital, Warangal, for doing official favour for giving favourable order/judgment in his favour in Case No.2/96 File No.C/233/96 and thereby you committed an offence specified under Section 13(1) (d) of Prevention of Corruption Act, 1988, punishable under Section 13(2) of that Act and within my cognizance.” When the charges were read over and explained to the Accused Officer, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 8 and got marked Exs.P1 to P17 besides case properties M.Os.1 to 9. 5. After closure of the prosecution evidence, the Accused Officer 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 Officer, D.W.1 is examined and Exs.D1 to D8 were marked. 6. The trial Court, accepting the evidence of P.Ws.1 and 2, found the appellant guilty of the offence under Section 7 of the Act and also accepting the evidence of P.W.3-mediator and P.W.8-the then Deputy Superintendent of Police, ACB, Warangal, the Trap Laying Officer found the Accused Officer guilty of the offence under Section 13(1)(d) read with 13(2) of the Act, and accordingly, convicted and sentenced him as stated above. Challenging the same, the present criminal appeal is filed. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the charges levelled against the appellant for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned Senior Counsel, Sri C. Padmanabha Reddy, appearing for the appellant, contended that there is absolutely no evidence to show that any official favour to be shown by the appellant to P.W.1 was pending with him; and that as the appellant had already delivered the judgment on 31.01.1997, he becomes functus officio, as an appeal has to be filed against the judgment given by the accused before the appellate Court; and that therefore, the question of demanding any bribe or illegal gratification other than legal remuneration does not arise; that because the appellant directed P.W.1 to pay Rs.28,680/- for illegal termination of an employee; that P.Ws.1 and 2 entertained a grouse against the appellant, and as they were close friends, a false case is foisted against him to take vengeance against the appellant; that the appellant having known about the fact that no review is maintainable, he would not have advised P.W.1 to file a review petition; that when P.Ws.1 and 2 went and offered a cover saying that it contained the review petition, the Accused Officer did not accept the same and pushed the same directing P.W.1 to file the review petition in the office, and while leaving the place where the appellant was sitting, P.Ws.1 and 2 threw the cover underneath the bed in the bedroom of the appellant, which is accessible to the persons who come to the residence of the appellant, and that is the reason why both the hand fingers of the appellant, when subjected to the Sodium Carbonate Solution Test, turned into pink colour; and that therefore, it is not safe to place any implicit reliance on the evidence of P.Ws.1 and 2 to show that there was a demand and acceptance by the appellant and hence, he prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, learned Standing Counsel for ACB, Sri V.Ravi Kiran Rao, contended that P.W.1 may not be knowing about filing of review petition, that on the advice of the appellant only, he filed a review petition before the appellant and for reviewing his own judgment, dated 31.01.1997, in the first instance, the appellant demanded Rs.10,000/- and thereafter, it was reduced to Rs.8,000/-; that the Trap Laying Officer smeared the tainted currency notes-M.O.1 with Phenolphthalein powder including the cover and when P.W.1 offered the same at the residence of the appellant, the appellant received the same with his right hand and took out the tainted currency notes from the cover and counted the same and kept on the bed in the bedroom; that after receipt of the pre-arranged signal, P.W.8 and the trap party members rushed to the house of the appellant and subjected both the hand fingers of the appellant to the Sodium Carbonate Solution Test which turned into pink colour; that the M.O.2-cover containing M.O.1-currency notes was also subjected to the Sodium Carbonate Solution Test which gave positive result, and therefore, the tainted currency notes were seized from the residence of the appellant; that after considering the evidence on record, the trial Court rightly found that the charges levelled against the Accused Officer are proved beyond all reasonable doubt, and none of the findings is shown as perverse or contrary to law. On the other hand, the findings are based upon proper appreciation of admissible evidence on record, and there is absolutely no ground to interfere with convictions and sentences imposed by the trial Court. 10. It is not in dispute that one Kumaraswamy was working as a Compoundar-cum-Attender in the clinic of P.W.1 at Warangal. It is not in dispute that P.W.1 was working as a Civil Assistant Surgeon, M.G.M. Hospital, Warangal. It is also not in dispute that he was running a private clinic at Charbowli, Warangal, from 1991. He engaged one Kumaraswamy by paying a monthly salary of Rs.1,000/-. The said Kumaraswamy used to attend the clinic in the morning time and used to assist P.W.1 in the evening time. As Kumaraswamy misbehaved with P.W.1, his services were terminated. Then the said Kumaraswamy filed a case No.2 of 1996 before the Labour Court, Warangal, in the month of November, 1996. At that time, the appellant was working as the Assistant Commissioner of Labour. P.W.1 attended the Court on 07.11.1996 and gave evidence. While the case was pending, it is alleged that the appellant made telephone calls to P.W.1 requesting to meet him, but P.W.1 did not meet the appellant. Thereafter, the judgment was delivered by the appellant on 31.01.1997, directing P.W.1 to deposit an amount of Rs.28,680/- for illegal termination of Kumaraswamy. Then he explained the said facts to his friend, Dr. K.Raja Reddy, who is examined as P.W.2. They both went to the office of the appellant on 27.02.1997 and met him. At that time, it is alleged that the appellant demanded Rs.10,000/- as bribe from P.W.1 to review the judgment in his favour and that the appellant also advised him to file a review petition through an Advocate. According to P.W.1, on 14.03.1997, he filed a review petition as suggested by the Accused Officer. According to P.Ws.1 and 2, again on 18.03.1997, they both met the Accused Officer in his office-cum-residence. Then also, the appellant demanded an amount of Rs.10,000/- as bribe for reviewing the judgment. When P.W.1 pleaded his inability, the amount was reduced from Rs.10,000/- to Rs.8,000/-. Not willing to pay that amount, he lodged Ex.P1-complaint with P.W.8, who registered the case. P.W.1 was asked to attend on the next day morning i.e., on 19.03.1997 with the cash of Rs.8,000/-. P.W.8 called P.W.3 and another mediator and Phenolphthalein powder was smeared on the currency notes. The numbers of the currency notes were noted in Ex.P2-pre-trap proceedings. Similarly, it is not in dispute that the M.O.1-tainted currency notes have been put in the envelope. The said envelope was also smeared with Phenolphthalein powder, which is marked as Ex.P2. Then, P.Ws.1 and 2 left the office of P.W.8 and proceeded towards the residence of the appellant, which is located on the first floor of the building in Warangal. After wishing the appellant, P.Ws.1 and 2 enquired the appellant as to what had happened to his case. Then the appellant asked him whether he had brought the amount as demanded. Then the appellant took him to the bedroom which is located by the side of his office room and took out the currency notes-M.O.1 and counted the same and again put in the cover and kept the same on the bed. Thereafter, P.W.2 came out and gave the pre-arranged signal. The trap party, who were in vantage position, rushed to the office room of the appellant and subjected both the hand fingers of the appellant to the Sodium Carbonate Solution Test and the colour of the Solution in both the tumblers changed into pink. Similarly, the cover and the bed sheet were also subjected to Sodium Carbonate Solution Test and it gave positive result. Then the currency notes were seized from the bed of the appellant and the numbers of the currency notes were tallied with the numbers as noted in Ex.P2-pre-trap proceedings. Then Ex.P3-Post-trap proceedings were drafted. 11. The specific plea of the Accused Officer is that when P.W.1 gave the cover to him stating that it contained the review petition, he directed P.W.1 to file in the office and the appellant pushed the cover with his both hands and that when P.W.1 tried to put the cover in his both hands, he refused to receive at his residence, and therefore, both the hands of the appellant came into contact with Phenolphthalein powder. 11. There cannot be any dispute that the golden thread which runs through the web of criminal justice system is that when the true views are reasonably possible on the evidence adduced by the prosecution are pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused has to be adopted. Similarly, it is also equally well settled that the burden is always on the prosecution to establish its case and it never shifts on to the accused unless law says so. Under Section 20 of the Act, a presumption can be drawn when the Accused Officer, as a public servant, accepted any money from any person as a motive or reward other than legal remuneration. The presumption is that he received the same towards illegal gratification. Even the burden under Section 20 of the Act to be discharged by the Accused Officer never shifts to the Accused Officer unless the prosecution establishes its case beyond all reasonable doubt for the charge under Section 7 of the Act. Section 7 of the Act says that if a person, as a public servant, receives any amount from any other person receives or accepts as a motive or reward other than legal remuneration in discharge of the official functions, then it is an offence punishable under Section 7 of the Act. The appellant was working as the Assistant Commissioner of Labour, Warangal. In his capacity as an Assistant Commissioner of Labour, he had already disposed of the case relating to the employee of P.W.1 by judgment, dated 31.01.1997, whereunder and whereby, P.W.1 was directed to deposit Rs.28,680/- for illegal termination of the services of one Kumaraswamy. It is not in dispute that in the first instance, P.W.1 was set ex parte in Case No.2 of 1996 on the file of the Assistant Commissioner of Labour, Warangal. After filing a petition to set aside the ex parte order, he gave evidence. Though it is alleged that while the case was pending, the appellant made telephone calls to P.W.1 with a direction to meet him in the office. But P.W.1 did not go and meet the appellant. No specific date was given by P.W.1 on what date the appellant made a telephone call. 12. P.W.1 engaged an advocate to defend his case which was pending before the appellant. He is examined as P.W.4 in the said case. Ex.P14 is the order, dated 31.01.1997, in Case No.2 of 1996. According to him, on the instructions of the appellant, he filed an application under Section 151 of C.P.C. with a prayer to review the order, that he stated that he filed the petition on 14.01.1997. But the evidence of the Investigating Officer coupled with the evidence of P.W.5, who was working as a Dispatch Clerk in the Assistant Commissioner of Labour, Warangal, it is clear that an application was filed on 18.03.1997 by P.W.1 and the same was entered in the register as Ex.D6. 13. P.W.6 is the Deputy Commissioner of Labour, Warangal zone, at the relevant point of time of incident. According to him, when the case is filed under the Payment of Wages Act, appeal against the orders of the Assistant Commissioner of the Labour lies to the District Court under Section 17 of the Payment of Wages Act and the office will not entertain review petition against the orders passed on merits. 14. It is not in dispute that two or three days after passing of the final order dated 31.01.1997 by the appellant on merits, P.W.4-advocate intimated the same to his client-P.W.1 and it is the evidence of P.W.4 that P.W.1 was prosecuting the case regularly. P.W.4 also admitted that under Section 17 of the Payment of Wages Act, appeal shall lie against the orders of the Assistant Commissioner of Labour to the District Court. He also admitted that as per the endorsement on Ex.D5 made by the office of the Assistant Commissioner of the Labour, the review petition was received by the office on 18.03.1997. Therefore, when P.W.1 was contacting P.W.4 with regard to filing of the appeal, P.W.4 would have advised him to file an appeal before the District Court instead of review petition. Therefore, P.W.4 would have properly advised P.W.1 to file an appeal before the concerned District Court, and as rightly pointed out by the learned Senior Counsel for the appellant, that the appellant became as the Assistant Commissioner of Labour has become functus officio in the matter because the judgment has already delivered on 31.01.1997. 15. Though it is vaguely stated by P.W.1 that prior to that date, the appellant made telephone calls to him but there is absolutely no evidence to show a favour in the case No.2 of 1996. He was asked to meet him personally. Even P.W.1 vaguely stated that as the message he received from the phone calls was that to meet him in the office and to settle the matter. Therefore, the specific purpose of P.W.1 to meet the appellant is absent in his evidence. If really, the appellant was in the habit of making any demands or accepting any money other than legal remuneration, he could have sent somebody to P.W.1 and demanded to pay certain amount to show any favour. Therefore, by the date of alleged demands, i.e., on 27.02.1997 and 18.03.1997, no favour to be shown by the appellant to P.W.1 was pending. Therefore, in such circumstances, the question of demanding bribe does not arise. 16. The evidence of P.Ws.1 and 2 is to the effect that on 27.02.1997 and 18.03.1997, the appellant demanded Rs.10,000/- in the first instance and when P.W.1 pleaded his inability to pay Rs.10,000/-, it was reduced to Rs.8,000/-, and as P.W.1 was not willing to pay that amount, he lodged Ex.P1-complaint. P.W.8 and his team ought to have smeared the Phenolphthalein powder on the currency notes. There was no need to smear Phenolphthalein powder on the cover. Admittedly, as seen from Ex.P2-Pre-trap proceedings and the evidence of P.Ws.3 and 8, it is clear that Phenolphthalein powder was smeared on the cover. There is no need to put the tainted currency notes in the cover. At the time when P.Ws.1 and 2 went to his residence, the appellant was sitting in the office-cum-residence chamber. As seen from Ex.P4 and the evidence of P.Ws.5 and 8, it is clear that the office-cum-residence was located on the first floor of the building which is accessible to anybody. After climbing the staircase, there was a door. By the side of that door, the bedroom of the appellant was located and by the side of that bedroom, the office room table was located. It is not in dispute that there was no direct access from the office room of the accused to the bedroom. One has to come to the corridor, take a ‘U’ turn to enter into the bedroom. The specific case of P.Ws.1 and 2 is that when they offered the tainted currency notes-M.O.1 along with M.O.2-cover, the Accused Officer took them to the bedroom and took out the currency notes from the cover, counted the same and again kept the amount in