THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.1444 of 2004 BETWEEEN: K.Prasad Rao … Appellant AND The State of A.P. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1444 of 2004 JUDGMENT: The accused/appellant was working as Telecom Technical Assistant/OD (On Duty) in the office of B.S.N.L. (Bharat Sanchar Nigam Limited) Tolichowki, Hyderabad. By the impugned judgment dated 25.06.2004 in CC.No.23 of 2001, the Special Judge for C.B.I. cases, Hyderabad, convicted the accused of the offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced him to rigorous imprisonment for one year and fine of Rs.1,000/- on each count separately. 2. PW1 applied for new telephone connection to his residence as per Ex.P5. Ex.P6 is enclosed along with Ex.P5. There is no dispute that telephone was sanctioned to PW1 on 15.06.2001. Inspite of it, telephone was not installed at PW1’s place. Therefore, he met the accused on 08.07.2001 for installation of telephone. According to PW1, the accused was also in-charge of the office of Junior Telecom Officer (JTO). It is alleged that on 12.07.2001, when PW1 met the accused at the Telephone Exchange/Office, Tolichowki, the accused demanded bribe of Rs.600/- from him for installation of telephone at his residence and asked him to bring the said amount on the next day. PW1 met the Inspector of Police, Central Bureau of Investigation (C.B.I.), Hyderabad and gave Ex.P2 report. Thereupon, PW8, Inspector of Police, C.B.I., Hyderabad arranged trap for the accused on 13.07.2001 with the help of two mediators including PW2. PW2 was working as Lower Division Clerk in the office of Archeological Survey of India at Hyderabad, which office is located by the side of C.B.I. office at Hyderabad. Ex.P4 mediators report relating to pre-trap proceedings was prepared in the presence of PW1 and the mediators. It is alleged that on that day, the trap was successful and the accused was caught red-handed while in possession of tainted cash of Rs.600/- as per MO.1. Both during Ex.P3 second mediators report relating to post trap proceedings as well as during trial before the lower Court, there is no dispute of PW1 paying MO.1 tainted cash of Rs.600/- to the accused during the course of trap. But, plea of the accused is that he did not receive the same as bribe. In Ex.P3 post trap proceedings, spot explanation given by the accused is noted to the effect that he did not demand money, but PW1 himself gave the same and therefore, he received the same and kept the amount in his pant pocket and that even though he should not take money, but he received the same as it was given by PW1. In the said spot explanation contained in Ex.P3 post trap proceedings, there is no element of confession. On the other hand, it is his specific case that he did not demand the money received from PW1. Therefore, the said explanation is relevant under Section 8 of the Indian Evidence Act as a spontaneous outcome from the accused. During trial in the lower Court, the accused pleaded that he received Rs.600/- covered by MO.1 from PW1 towards interest payable by PW1 to wife of the accused on debt of Rs.30,000/- borrowed by PW1 from her and not as bribe. The lower Court considering the entire evidence on record, found favour with the prosecution and discarded the plea of the accused and found the accused guilty of the charges. 3. It is contended by the senior counsel appearing for the appellant/accused that there is no proof let in by the prosecution either for demand of bribe or for acceptance of MO.1 cash as bribe and that evidence of PW1 with regard to demand is inconsistent from stage to stage. It is also contended that evidence of DWs 1 and 2 proved that PW1 borrowed Rs.30,000/- from DW2, who is wife of the accused under a promissory note and that it probablized that the amount of Rs.600/- was paid towards interest for one month on the borrowed amount at the rate of Rs.2/- per Rs.100/- per month. 4. PW1 deposed that on 08.07.2001, the accused visited his house and inspected the same and asked him to arrange instrument and wire on his own expense so that he can install the telephone, and asked for a letter to that effect. PW1 gave Ex.P1 letter to the effect that he would furnish telephone instrument and wire at his expense. According to PW1, the accused also demanded Rs.600/- from him on the same day. He further says that he went to the office of the accused on the 11th and the 12th of July, 2001 and that the same demand was made by the accused. In Ex.P2, PW1 stated that on 08.07.2001, the accused came and inspected the place where telephone has to be installed and that on 12.07.2001, when he met the accused at his office and enquired about his telephone connection, the accused demanded bribe of Rs.600/- for installation and that the accused further stated that unless the said amount is paid, he will not give telephone connection, and asked him to get the bribe amount on 13.07.2001 at 1:00 A.M. at his office and give the same to him. It is contended by the appellant’s senior counsel that in Ex.P2, PW1 did not state about the alleged demands for bribe made by the accused on 08.07.2001 and 11.07.2001. On the other hand, it is contended by the Special Public Prosecutor that one cannot expect a report given to the police to be an Encyclopedia to contain all the allegations. Ex.P2 being First Information Report, is meant to move the criminal law machinery into action. It is not a pleading in a civil Suit to contain all the pleas. Even in civil Suits, a plaint need not contain the entire evidence to be let in by the plaintiff. In criminal law, FIR given under Section 154 Cr.P.C is not ‘be-all and end-all’ of the prosecution case. It need not contain all the allegations and events which took place prior to it. It is sufficient if it contains the necessary ingredients/allegations to attract a cognizable offence, so that it can be registered for that offence and the police will take up investigation of that offence. On scrutiny of Ex.P2 and evidence of PW1 in this case, I do not find any inconsistency between the two and no allegation in Ex.P2 is contrary to PW1’s evidence or falsify PW1’s evidence. Insofar as demand for bribe made by the accused on 12.07.2001 is concerned, it is consistent. Absence of the allegation about demand for bribe made by the accused on 08.07.2001 and 11.07.2001 in Ex.P2, is not detrimental to the prosecution case. 5. With regard to the trap, it is PW1’s evidence that after he entered into room of the accused, the accused enquired whether money was brought and that PW2 was also present when the accused made the said enquiry and that he informed the accused that he brought the money, and that he took out the money and paid the same to the accused on his demand and that the accused counted the money and kept it in his right side pant pocket and that thereafter, both he and PW2 came out and PW2 gave pre-arranged signal to the trap party by wiping his face with handkerchief. In cross-examination, he deposed that he was there with the accused for about five minutes at the time of trap along with PW2. PW2 was employed as accompanying witness also along with PW1 at the time of trap. PW2 says that they proceeded to the office of the accused and that the accused demanded money and the complainant paid the same and that thereafter, they gave pre-arranged signal. After receiving pre-arranged signal, the trap party including PW8 rushed there. Hand rinses of the accused in Sodium Carbonate solution turned pink as per Mos. 2 and 3. Pant pocket lining of the accused also turned pink in Sodium Carbonate solution as per MO.4. MO.5 is pant of the accused. Since there is no dispute about the accused receiving MO.1 cash from PW, the above evidence assumes little importance. 6. It is contended by the senior counsel for the accused/appellant that PW9, who is the Investigating Officer deposed in cross-examination that PW1 did not state before him that he paid the amount to the accused on 13.7.2001 on demand. It is pointed out that in Ex.P3, post-trap proceedings also, the accused stated that he did not make any demand for bribe from PW1. But, PW1 in his cross-examination during trial in the lower Court was not confronted with the omission relating to demand on 13.07.2001. In the absence of such confrontation to PW1 about the omission in his previous statement recorded under Section 161(3) Cr.P.C., the above evidence of PW9 in his cross-examination cannot have any weight. It is well settled principle of law that statement of a witness recorded during investigation under Section 161(3) Cr.P.C. is no substantive piece of evidence. It can be used only to contradict evidence of the person who gave such statement. In the absence of confrontation of the omission in his previous statement to PW1 in his cross-examination by the defence counsel during trial, evidence of the Investigating Officer about the alleged omission in PW1’s previous statement has no value in law at all. 7. It is further contended by the appellant’s senior counsel that none of Exs. P3 and P4 was scribed by any of the mediators, including PW2. As per evidence of PW8, the mediator reports were drafted by one Prabanjan Kumar, Sub- Inspector of Police, C.B.I., Hyderabad. The said Prabanjan Kumar is not examined. Scribe of a mediator’s report is not a relevant witness in a criminal case. It is only a mediator in whose presence the mediator’s report is recorded with regard to either happening of an event or recovery of any material, who is a relevant witness. In this case, PW2 was examined by the prosecution as a mediator in Exs.P3 and P4. Non-examination of Prabanjan Kumar is not in any way detrimental to the prosecution case. 8. In the light of above evidence of PWs 1 and 2 and Ex.P3 which is supported by PW8 with regard to demand of bribe by the accused, acceptance of bribe by the accused and recovery of Mo.1 from possession of the accused, this Court has to see whether there is probability in the defence version pleaded by the accused during trial. Even though there was opportunity for the accused to come out with his version during post-trap proceedings, he did not state in his spontaneous explanation to the effect that he received Mo.1 cash of Rs.600/- from PW1 towards monthly interest payable by him to his wife. It is not the case of the accused that though he gave the said explanation to the trap-laying officer to the above effect, it was not incorporated in Ex.P3. As per Ex.P3, spontaneous plea of the accused is that it was a voluntary payment made by the accused without any demand. It was given a go-bye during trial by the accused. The second plea of the accused which came into forefront during cross-examination of PW1 for the first time is that PW1 borrowed Rs.30,000/- from wife of the accused (DW2) on interest of 2% per month and that MO.1 cash of Rs.600/- was paid by PW1 to the accused towards monthly interest payable on the said loan. PW1 denied the said suggestion in his cross- examination. It is evidence of PW1 that prior to this incident, he did not know the accused at all. 9. DW2 deposed that she knew PW1 as well as DW1 and that DW1 brought PW1 and requested for loan of Rs.50,000/- and that she advanced Rs.30,000/- only to PW1 saying that she had only that amount with her. DW1 claims to be cousin of PW1. Even though the defence counsel suggested to PW1 about the loan transaction, in the said suggestion, the defence counsel did not incorporate presence of DW1 or recommendation of DW1 with DW2 at the time of advancing the alleged loan of Rs.30,000/- by DW2 to PW1. DWs 1 and 2 deposed that DW2 obtained promissory note for Rs.30,000/- from PW1. DW1 claims that he signed as attesting witness in that pronote. According to DW2, C.B.I Police searched their house and took away the promissory note promising to return it back, but they did not do so. It is contended by the Special Public Prosecutor that if really the promissory note was seized during search of house of the accused and it was not returned, DW2 would not have failed to issue notice to C.B.I., Hyderabad for return of the said pronote, so that she could file civil Suit for recovery of money covered by the same. DW2 also did not claim that she filed any civil Suit for recovery of money on the basis of pronote said to have been executed by PW1 and said to have been seized by C.B.I, on the plea of “lost pronote”. PW8 did make search of house of the accused after the trap covered by Ex.P3. It is evidence of PW8 that subsequent to the trap, he proceeded to the residence of the accused and conducted search under Section 165 Cr.P.C. and that no seizures were made and that he served copy of seizure list to the accused. PW8 in cross-examination deposed that he noticed some pronotes in the house of the accused during inventory. He denied the suggestion that he had not recorded presence of pronote for Rs.30,000/- executed by PW1 in the inventory list voluntarily. It is contended by the Special Public Prosecutor that there is no suggestion made by the defence counsel during trial to PW8 in cross-examination to the effect that PW8 seized the said pronote. In my opinion, suggestions are wholly un- necessary in criminal trial, particularly while assessing probabilities of the defence version. It is contended by the senior counsel for the appellant/accused that PW4 in cross- examination deposed that at the time of search, several papers were collected from the house of the accused including pronotes. PW4 is Sub-Divisional Engineer (Welfare), B.S.N.L., Hyderabad, who was incharge of S.D.O.(P) during that time. He went to the trap point when he was asked to go there after the trap. He reached the trap point when Ex.P3 was being prepared. He also signed in Ex.P3. He accompanied PW8 during search of house of the accused. According to PW4, during search, several papers including pronotes were collected from the house of the accused. Nothing was elicited from PW2 about search of house of the accused. Ex.P9 is inventory list prepared at the time of search of house of the accused. It reads that in the almirah found in the second bed room, four promissory notes were found, out of which two promissory notes were executed by K.Parameswara Reddy for Rs.10,000/- and Rs.50,000/- and two promissory notes were executed by K.Hemeswar Reddy for Rs.50,000/- each. It was specifically stated in Ex.P9 that no articles were seized under this inventory. PW4 also signed as one of the mediators in Ex.P9. His evidence, which is contrary to the document Ex.P9 to which he is a party, cannot have any weight. Copy of Ex.P9 was also served on the accused. At any rate, it is not the evidence of PW4 that any pronote for Rs.30,000 executed by PW1, was also seized by C.B.I. during search of house of the accused. The belated defence of the accused which has no basis in the material part of the record could not be substantiated by the accused even by semblance of probabilities. 10. It is contended for the appellant that PW2 in cross- examination deposed that on 23.08.2001, he was again called to C.B.I. office and a report was prepared and his signature was obtained. Insofar as Ex.P3 second mediators report relating to post- trap proceedings is concerned, it is definite evidence of PW2 that it was prepared on the same date of trap. In cross- examination, PW2 explains about the document which was signed by him on 23.8.2001. He says that he signed on statement recorded on 23.08.2001 and that after showing Exs. P3 and P4 only, his statement was recorded on 23.08.2001. 11. Thus, on consideration of the entire evidence on record, I have no hesitation to find that the prosecution has proved demand of bribe by the accused and also acceptance of bribe by the accused for doing the official favour of installation of telephone in PW1’s house. The lower Court rightly found favour with the prosecution in the light of the above prosecution evidence. There are no grounds in this appeal to interfere with the said finding of guilt recorded by the lower Court. 12. In the result, the Criminal Appeal is dismissed. ____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 20.06.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.1444 of 2004 DATED:20.06.2011 ysk