THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 234 OF 2003 JUDGMENT: 1. This Criminal Appeal is directed against the judgment dated 30.01.2003 in Calendar Case No.17 of 2001 on the file of the Special Judge for C.B.I. Cases, Visakhapatnam, whereunder and whereby the respondent/sole accused was found guilty of the offences under Sections 7 and 13 (1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and accordingly convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/- in default to suffer simple imprisonment for a period of two months, under each count. 2. The brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows: P.W.1 joined as Tradesman Grade-3 (c) in National Projects Construction Corporation Limited (N.P.C.C.). He took voluntary retirement on 18.8.2000. He was entitled to receive Rs.2,35,407/- towards VRS amount and also back-wages. The Unit officer (DW.1) gave a cheque for Rs.1,85,407/- and appellant gave Rs.10,000/- out of the remaining amount of Rs.50,000/- and retained Rs.40,000/- on the ground that they made arrangement for receiving VRS amount and back wages. On 5.1.2001, P.W.1 received a post-card (Ex.P.1) from the appellant, while he was in Hyderabad asking him to contact the appellant immediately. P.W.1 started from Hyderabad on 6.1.2001 and reached Vizag on 7.1.2001. His landlord’s sister gave him a chit (Ex.P.2) given by the appellant containing message to P.W.1 to contact the appellant on phone or in person as the matter was most urgent. On 7.1.2001, P.W.1 telephoned to the appellant who informed him that back wages amount was ready and that Unit Officer (DW.1) was demanding Rs.5000/- as bribe for releasing the amount and the appellant asked P.W.1 to come and meet him on 10.1.2001. Ex.P.3 is the telephone bill given by STD booth. On 9.1.2001, P.W.1 went to NPCC Office and met the Unit Officer A.S.N. Murthy (DW.1) who told P.W.1 that after getting Rs.70,000/- as back-wages, P.W.1 should pay to him and to the appellant, an amount of Rs.50,000/- and immediately P.W.1 should pay Rs.5,000/- to the appellant on the evening of 10.1.2001. When P.W.1 met appellant on 10.1.2001 and requested him to pay back wages, the appellant asked P.W.1 to come in the evening at 4.30 and pay Rs.5,000/- as bribe, and threatened P.W.1 that unless the bribe amount was paid he would not get the amount. On 10.1.2001, P.W.1 met the Superintendent of Police, Central Bureau of Investigation (C.B.I.) and lodged a report which was forwarded to P.W.4 who registered a case in R.C.1(A)/2001 of C.B.I. Ex.P.4 is the report and Ex.P.13 is the F.I.R. P.W.1 was asked to come to C.B.I. office by 2.00 P.M. with the money. Accordingly P.W.1 met P.W.4 at 2.00 P.M. P.W.2, mediator, was there at that time. After completing the pre-trap formalities and after explaining the significance of phenolphthalein test, the tainted money was kept in the left side shirt pocket of P.W.1 and he was asked to give the signal by wiping the face. Ex.P.6 is the first mediators report. The trap party left C.B.I. office at 3.15 P.M. and reached the NPCC Office at 4 P.M. P.Ws.1 and 2 went inside the office. P.W.1 wished the appellant with folding hands. When P.W.1 asked for money saying that he was in need of the same, the appellant replied that his work would be done and demanded for the money. P.W.1 gave the tainted amount and the appellant received it with right hand, stood up and kept them in front Secret pant pocket. P.W.1 asked the appellant to inform DW.1 about payment of money. P.W.2 was introduced to the appellant as his nephew. P.W.1 came out of the office and gave the pre-arranged signal. On receipt of the signal, the trap party rushed inside and questioned about the money. The appellant replied that he had not received any money as bribe but received Rs.5,000/- as hand loan from P.W.1. After recording the statements of P.Ws.1 and 2, the sodium carbonate solution test was conducted. Both the hand fingers of the appellant proved positive to the test. M.O.1 is the tainted money. M.Os.2 to 4 are resultant solutions and M.O.5 is the pant of the appellant. Ex.P.7 is rough sketch of the room. Ex.P.8 the second mediators report. P.W.5 took over further investigation from P.W.4, examined witnesses and after completion of investigation, laid the charge sheet on 31.7.2001. 3. The charges framed against the respondent are as follows: “CHARGE NO.1: That you on 10-1-2001 at Visakhapatnam being a Public Servant employed as Office Superintendent, National Projects Constructions Corporation, (N.T.P.C.), Old Gajuwaka, Visakhapatnam, demanded and accepted Rs.5,000/- as bribe from N.Srinivas in pursuance of your earlier demands on 7-1-2001 , 9-1-2001 as gratification other than legal remuneration, as a motive or reward for official favour, in the exercise of your official functions for processing the letter dated 1-12-2000 to pay the back-wages for the period from 26-10-1984 to 21-6-89 of N.Srinivas, thereby committed an offence punishable under Sec.7 of the Prevention of Corruption Act, 1988 and within my cognizance. CHARGE NO.2: That you on 10-1-2001 at Visakhapatnam being a Public Servant employed as Office Superintendent, National Projects Constructions Corporation (N.T.P.C), Old Gajuwaka, Visakhapatnam, demanded and accepted Rs.5,000/- as bribe from N.Srinivas in pursuance of your earlier demands on 7-1-2001 and 9-1-2001 as gratification other than legal remuneration, as a motive or reward for official favour, in the exercise of your official functions for processing the letter dated 1-12-2000 to pay the back-wages for the period from 26-10-84 to 21-6-89 of N.Srinivas, by corrupt or illegal means or by otherwise abusing your position as such Public Servant obtained for yourself a pecuniary advantage to an extent of Rs.5,000/- as bribe, and thereby committed the offence specified in Sec.13(1)(d)(ii) of the P.C. Act, 1988 punishable under Sec.13(2) of that Act, and within my cognizance.” When the charges were read over and explained to the appellant, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 6 and got marked Exs.P1 to P16, besides case properties M.Os. 1 to 5. 5. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of the prosecution witnesses, for which he denied. On behalf of the appellant/accused, D.Ws.1 to 4 were examined and Exs.D1 and D2 were marked. 6. The trial Court, accepting the evidence of prosecution witnesses, found the appellant guilty of the offences under Sections 7 and 13(1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988, accordingly convicted and sentenced him as stated above. Challenging the same, the present appeal is preferred by the appellant/accused. 7. Now, the point for determination is whether the prosecution proved the guilt of the appellant/accused for the charges under Sections 7 and 13(1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988 ? 8. The learned senior counsel Sri C.Padmanabha Reddy, appearing for the appellant, contended that, P.W.1 is not a wholly reliable witness so as to place reliance on his testimony with regard to demand and acceptance of bribe amount; that the earliest version in Ex.P4, P.W.1 implicated two other officers as demanded bribe, but he gave a complete go-by to his earliest version and came forward with the present version that the appellant alone demanded the amount; that P.W.2 did not specifically state that the appellant demanded any amount towards bribe for processing the file relating to payment of back wages to P.W.1; that the spontaneous explanation given by the appellant would clearly go to show that the appellant received the tainted currency notes by way of loan; that Ex.D2 would clearly go to show that head office informed the concerned officer at Visakhapatnam to keep the payment of arrears of back wages in abeyance and therefore the amount had not been paid; that the appellant was incapable of doing any favour to P.W.1 in view of Ex.D2; that the evidence of D.Ws. 2 and 3 would clearly go to show that P.W.1 gave that amount as hand loan to the appellant as the accused was not getting salary, and therefore, the evidence of D.Ws. 2 and 3 coupled with the spontaneous explanation of the appellant would reveal that the appellant received the amount as hand loan. Hence, he prayed to set aside the convictions and sentences recorded against the appellant. 9. On the other hand, Sri T.Niranjan Reddy, the learned counsel appearing for the respondent/C.B.I. contended that, the evidence of P.W.1 is completely in corroboration with the evidence of P.W.2 with regard to demand of money by the appellant on the date of the incident; that there was no reason for P.W.1 to foist a false case of this nature against the appellant as there was no enmity between them; that, if really the appellant asked P.W.1 any amount towards loan, he would have made a mention in Exs.P1 and P2, which were not denied by the appellant; that the sodium carbonate solution test conducted on the hand fingers of the appellant gave positive result; that when once the demand and acceptance have been established by the prosecution, the burden shifts on to the appellant to rebut the same; that the plea of the appellant has not been substantiated with any other evidence; that the presence of D.Ws. 2 and 3 has not been spoken to by P.W.2 and so therefore they are planted witnesses; that, on the face of it, Ex.D2 is false in view of the fact that there was no telephone connection at the relevant point of time to the office and therefore the head office giving oral telephonic instructions to the appellant to keep payment of the arrears of the back wages amount in abeyance, does not arise; that, after an elaborate consideration of the evidence of record, the trial court rightly convicted and sentenced the appellant and there are no grounds to interfere with the same. Hence, he prays to dismiss the Criminal Appeal. 10. The essential ingredients of Section 7 of the Act are: i) that the person accepting the gratification should be a public servant; ii) that he should accept the gratification for himself and the gratification should be 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 function, favour or dis-favour to any person. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 11. It is not in dispute that P.W.1 joined as Tradesman Grade-3(c) in N.P.C.C. and took voluntary retirement on 18.8.2000. According to him, he is entitled to receive Rs.2,35,407/- towards V.R.S. amount and also entitled to receive back wages. D.W.1 gave a cheque for Rs.1,85,407/- to P.W.1, and cash of Rs.10,000/- out of the remaining amount of Rs.50,000/- payable to him by retaining Rs.40,000/- on the ground that the appellant made arrangement for receiving V.R.S. amount and to get back wages. It is not in dispute that, on 5.1.2001, P.W.1 received Ex.P1-post card from the appellant asking him to contact him on phone or in person immediately as the matter was most urgent and at that time P.W.1 was in Hyderabad and he went to Visakhapatnam on 7.1.2001, where the sister of his landlord gave him Ex.P2-chit containing message to contact the appellant either in person or over phone. Then, according to the prosecution, P.W.1 made a call to the appellant on 7.1.2001 at about 8.15 PM and the appellant informed him that the back wages have been received and that the Unit Officer was demanding Rs.5,000/- as bribe for releasing the amount and that the amount was to be paid by him and the rest of the matter would be discussed later. Ex.P3 is the bill given by S.T.D. booth for making the telephone call to the appellant. Though it is stated that the appellant was not having any telephone connection, at the same time, the same has not been proved by the appellant. On 10.1.2001, P.W.1 met the appellant and requested him to pay back wages. But, the appellant told him to come in the evening at 4.30 and pay Rs.5,000/- as bribe. When P.W.1 expressed his inability, the appellant threatened that unless the amount of Rs.5,000/- is paid, he would not get any amount. Unwilling to pay the amount, P.W.1 lodged Ex.P4-complaint to P.W.4, who is the trap laying officer. 12. The receipt of money by the appellant from P.W.1 is not in dispute. It is also not in dispute that the appellant is not the competent authority to issue orders for payment of back wages. Admittedly, he had to process the file relating to P.W.1 for payment of the back wages. According to the case of prosecution, the appellant received the said amount towards bribe for processing the file relating to payment of back wages to P.W.1. Whereas, the case of the appellant is that he received the amount by way of loan as he was not getting salary from the Corporation. 13. The law is well settled that when two views are reasonably possible, the view which is favourable to the accused should be adopted. The evidence of P.W.1 would go to show that on 9.1.2001, when he met D.W.1, he told him that after getting Rs.70,000/- towards back wages, P.W.1 should pay him (D.W.1) and to the appellant an amount of Rs.50,000/- and immediately he should pay Rs.5,000/- to the appellant on the evening of Rs.10.1.2001; then, he went to the accused and requested to pay back wages, but the accused told him to come in the evening at 4.30 and pay Rs.5,000/- as bribe; that, when P.W.1 expressed his inability to pay that amount, the appellant threatened that unless the amount of Rs.5,000/- is paid, he would not get that amount. It is not in dispute that when fingers of both hands and the secret pocket of pant, of the appellant were subjected to sodium carbonate solution test, it gave positive result. It is also not in dispute that as the financial position of N.P.C.C. was not sound, the employees were not getting salaries regularly and they used to get salaries once in six months. P.W.1 admitted that, the appellant demanded Rs.5,000/- first time on 7.1.2001 as bribe for payment of arrears of back wages, and when he met the appellant on 10.1.2001, he iterated his demand of Rs.5,000/-. It is not in dispute that the duty of the appellant is to put up a note on receipt of intimation from the Head Office and after putting the note, the appellant has no role to pay in that matter. As a matter fact, the appellant had shown the note sheet prepared by him with regard to back wages of P.W.1. 14. There must be some reason for P.W.1 to set the criminal law into motion against the appellant. Even D.W.4, who was working as Tradesman in the same Corporation, stated that there were no disputes between the appellant and P.W.1. It is suggested to P.W.1 that he forged letters on the letter pads of the Corporation and made false promises to many people that he would secure jobs for them and in that connection a report was given to police. But, the same has not been substantiated with any other evidence to show that P.W.1 was involved in cheating or forgery cases. In the absence of any prior enmity or grouse, making false complaint by P.W.1 against the appellant cannot be accepted. If the evidence of P.W.1 is to be accepted, then it is clear that the appellant demanded Rs.5,000/- for processing the file relating to payment of back wages to P.W.1. No doubt, in the earliest version, he stated that the demand was made not only by the appellant, but also D.W.1-A.S.N. Murthy, Unit Officer and also G.M. Hanumantha Rao. Though the case was registered against D.W.1 and G.M. Hanumantha Rao also, later, as there was no sufficient material, they were deleted from the charge sheet, as seen from the evidence of P.W.5. 15. The trap laying officer sent P.W.2, who is an independent witness, along with P.W.1 on the date of trap. His evidence would go to show that after they entered into the room of the appellant, the complainant wished the appellant by saying ‘Tiger Namasthe’ and the appellant responded and wished back by raising his hand; when the complainant enquired about his back wages bill, the appellant told him that nothing to worry and his bill was completed, and asked the complainant where was the money which they asked; then, the complainant took out the tainted currency notes from his left side shirt pocket and handed over to the appellant, who stood up and received the amount of Rs.5,000/- by extending his right hand and kept the amount in front secret pocket of his trouser; then the complainant requested the appellant for speeding up back ages payment and to inform about the Unit Officer about the payment. If really the amount was received by the appellant by way of loan from P.W.1, the sequences of events would have been otherwise. The appellant asked the complainant as to where was the money which they asked. If really that amount had not been paid towards bribe, there was no need for P.W.1 to say or request the appellant to speed up the back wages payment and to inform about payment of the amount to D.W.1. P.W.2 is totally an independent witness, against whom nothing has been attributed so as to discredit his testimony. He has no grouse or enmity against the appellant and nothing has been elicited in his cross- examination as to why he had to speak false against the appellant or speak in favour of the prosecution. Except suggesting that both the pre-trap proceedings and post- trap proceedings were drafted to the dictation of the C.B.I. officials and that he did not enter into the office, nothing has been elicited to discredit testimony of P.W.2. There must be some reason to doubt the testimony of P.W.2. In the absence of any reason, discarding the evidence of P.W.2 in view of the suggestions put to him, is not proper. Therefore, from the evidence of P.Ws. 1 and 2, it is clear that the appellant demanded Rs.5,000/- for processing the file relating to payment of back wages of P.W.1 and he received the amount to show a favour. 16. The appellant set up a plea that he received the amount as loan. D.Ws. 2 and 3, who were allegedly present at the time of giving the amount by P.W.1 on the date of the trap, stated that on 30.12.2000, when the appellant asked D.W.2 to lend some amount as hand loan, he told the appellant that he did not receive salary and therefore he could not arrange the hand loan; then, P.W.1, who was present there, voluntarily offered to give Rs.5,000/- to the appellant, and in that connection, the appellant addressed Ex.P1-letter as also intimation under Ex.P2. Exs.P1 and P2 do not indicate that the appellant wanted some money from P.W.1 as hand loan. Presence of D.Ws. 2 and 3 at the relevant point of time of the incident, is not spoken to by P.W.2. It is not even suggested to P.W.2 that when he and P.W.1 entered into the office room of the appellant, both these two witnesses (D.Ws. 2 and 3) were present there. Further, D.Ws. 2 and 3 were testifying in the court for the first time about their presence at the time when P.W.1 handed over the money towards loan. As a matter of fact, D.W.2 was also examined by C.B.I. Inspector. Even at that time, he did not voluntarily state about P.W.1 giving Rs.5,000/- towards loan to the appellant. Therefore, no reliance can be placed upon the evidence of D.Ws. 2 and 3. 17. D.W.1 is examined to show that he issued Ex.D2 to concerned department to keep payment of back wages of P.W.1 under abeyance. But, the copy of Ex.D2 was not found in the original file Ex.P16. As seen from Ex.D2, he received telephonic instructions from Corporate Office to keep the issue of payment of back wages of P.W.1 in abeyance until further orders. There is evidence on record that from 1997 onwards, there was no telephone connection to the office of D.W.1 at Visakhapatnam. P.W.6, the Unit Officer of N.P.C.C., who produced the file before the trial Court, categorically stated that in Ex.P16, there was no office note subsequent to 4.1.2001. He further stated that from about 1997 onwards, their office had no phone facility. Therefore, Ex.D2 appears to have been pressed into service to suit the case of the defence. The conduct of D.Ws. 2 and 3 immediately after the trap in not reporting to the trap laying officer about the appellant receiving the money by way of loan from P.W.1 nor making any representation thereafter, creates any amount of doubt about their presence at the time of the trap in the chambers of the appellant. 18. Similarly, the evidence of D.W.4 who deposed about the presence of D.Ws. 2 and 3 in the chambers of the appellant, cannot be accepted because he was also deposing for the first time in the court. He admitted that though he was in office on 10.1.2001, he was not aware that the appellant was caught by the C.B.I. officials and a trap was laid against him. If such is the case, his evidence that D.Ws. 2 and 3 were present in the chambers of the appellant at the time of the trap, cannot be accepted. Therefore, the defence set up by the appellant has not been established by preponderance of probability. 19. If really the appellant was in need of money, he would have asked loan from his colleagues in case of urgency and there was no need for him to write Ex.P1- letter to P.W.1 or to note certain instructions on Ex.P2 going to the rented house of P.W.1. When once the prosecution established the demand and acceptance, presumption under Section 20 of the Act can be drawn for the offence punishable under Section 7 of the Act. Though the appellant is not the competent person to pass orders with regard to payment of back wages, which can only be done by the Head Office, at the same time, the file relating to back wages of P.W.1 had to be processed through the appellant. Therefore, a favour to be shown by the appellant to P.W.1, must be pending with the appellant by the date of trap. Simply because P.W.1 lodged the complaint against D.W.1 and another, that they were demanding money and they were drapped as there is no evidence against them, it does not mean that P.W.1 has given false evidence against the appellant also. When P.W.1 has no enmity with the appellant, the question of false implication does not arise. No doubt, in the first instance, the appellant appeared perturbed and after some time, he gave statement to C.B.I. that he received the amount towards loan. But, in view of the foregoing discussion, there is no proof to show that P.W.1 gave Rs.5,000/- to the appellant towards loan. If P.W.1 promised to lend certain amount to the appellant towards loan, the contents in Exs.P1 and P2 would be in a different manner. The evidence of P.W.1 would clearly go to show that an official favour to be shown by the appellant to P.W.1 was pending and