THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL Nos.2438 and 2521 of 2004 COMMON JUDGMENT: Criminal Appeal No.2438 of 2004 is filed by A-1 Mohd. Jahangeer and Criminal Appeal No.2521 of 2001 is filed by A-2 Syed Ahmed in C.C.No.17/1998 on the file of the Court of Additional Sessions Judge for SPE & ACB cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad (trial court). The case is a ACB trap case. As the appeals arise out of the same case, they can be disposed by this common judgment. 2. Both A-1 and A-2 were tried on charges under Section 7 and Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act), relating to bribery. They pleaded not guilty. After considering the evidence let in by the prosecution and accused, the trial court by its judgment dated 09.11.2004 upheld the prosecution case and convicted each of A-1 and A-2 of the above charges and sentenced each of them to rigorous imprisonment for two years and to pay a fine of Rs.1,000/- under each of the charges with default clause prison sentences. It however directed that the substantive sentences of imprisonment shall run concurrently. A-1 and A-2 filed these appeals separately questioning the said judgment of the trial court. 3. Various grounds are raised in both the appeals assailing the trial court judgment. However before going into them the prosecution case and the defence of the appellant as disclosed from the cross-examination of prosecution witnesses and the evidence of defence witnesses should be noted. The prosecution case in substance is this. On the date of the trap i.e. 16.07.1997 and since some time prior thereto A-1 was the Excise Sub- Inspector and A-2 was the Excise Inspector of Shadnagar Excise Station in Mahaboobnagar District and both are admittedly public servants of our State Excise Department. At that time P.W.1- A.Srinivas was the licence holder of a retail Indian Made Foreign Liquor (IMFL) shop by name M/s.Saiteja Wines at Shadnagar. It is the admitted case of the prosecution that this P.W.1 was shown as one of the accused in an earlier Excise case registered as Crime No.181/1996-97 for the offence punishable under Section 34(a) of the A.P. Excise Act. It is also the prosecution version that P.W.1 obtained anticipatory bail in the above case on 25.06.1997 from this court. 4. The prosecution version is that initially on 02.07.1997 P.W.1 approached A-1 and A-2 at the Shadnagar Excise Station for execution of the bonds pursuant to the above anticipatory bail order and at that time both A-1 and A-2 made the first demand for sums of Rs.10,000/- and Rs.5,000/- respectively towards illegal gratification from P.W.1 for the purpose of what the prosecution calls “not harassing the P.W.1” and for allowing him to run his business smoothly and told P.W.1 to meet them again on 10.07.1997 and they both repeated their demand to P.W.1 on 10.07.1997 also. The further plea of the prosecution is that P.W.1 again met them on 14.07.1997 as told by them and on the said date also they demanded the above amounts. 5. The further version of the prosecution is that on 14.07.1997 P.W.1 as he was not willing to pay bribe to A-1 and A-2, met P.W.8 M.Srinivas the then DSP, ACB, Hyderabad Range at Hyderabad and presented Ex.P.1 report and he accordingly registered the present case and after giving suitable instructions to P.W.1 and arranging mediators he laid the trap on 16.07.1997. P.W.2 C.Paramanandam and another Vidyasagar who are also public servants of other departments acted as mediators. The trap was accordingly laid and the previously marked currency notes of the value of Rs.10,000/- and Rs.5,000/- are said to have been recovered from the possession of A-1 and A-2 respectively in the house of A-1 at Shadnagar where A-2 is also said to have been present. In fact the alleged bribe amounts were said to have been given by P.W.1 to A-1 and A-2 at A-1’s house in Shadnagar. 6. It must be stated here itself that so far as the laying of the alleged trap, the recovery of the amounts of Rs.10,000/- from the possession of A-1 and the recovery of the sum of Rs.5,000/- from the room where A-2 was found staying in the house of A-1 are concerned, P.W.1, P.W.2 Paramanandam the mediator and P.W.8 the DSP who is the trap laying officer have spoken about the same. Further their evidence plus the contents of Ex.P.7 mediators report would also show that they have supported the prosecution version. This apart the evidence of the mediator and the DSP would also show that the Sodium Carbonate solution – Phenolphthalein powder test conducted on the relevant hands of A- 1 and A-2 also proved positive. To the extent of recovery of amounts at the instance of or from A-1 and A-2 is concerned it can be said that prosecution has proved its case. That is however not the end of the matter. The defence of A-1 and A-2 which will now be set out has also to be considered in deciding about the sustainability of charges. 7. Sri C.Padmanabha Reddy, the learned Senior Counsel appearing for counsel on record for A-1, pointed out certain circumstances relevant to the defence contentions and further relied upon Exs.D.1 and D.19 letters and the evidence of D.W.1 A.Nataraj a resident of Mahaboobnagar and admission of P.W.1 and argued that the said circumstances more probablise that A-1 is innocent and has been implicated in the case by P.W.1 to avenge his spite because of the earlier case booked against P.W.1 and the seizure of stock from P.W.1’s shop and sealing it earlier to the trap. Sri V.V.Narasimha Rao, the learned counsel appearing for A-2, also relied upon the above contentions of Sri Padmanabha Reddy and pointed out additional circumstances which show the innocence of A-2 also. On the other hand, Sri R.Ramachandra Reddy, learned Standing Counsel appearing for the Anti Corruption Bureau (ACB), repelled the said contentions and argued that there is no ground to interfere with the judgment of the trial court. I shall now deal with the said contentions. 8. The first contention raised by Sri Padmanabha Reddy is the evidence of D.W.1 let in by accused and the admission of P.W.1 would show that P.W.1 took advantage of a debt admittedly owed by him (P.W.1) to D.W.1 A.Nataraj and made it as a ruse or pretext to make A-1 accept the amount towards the said debt and requested him to pass it on to D.W.1 to make the trap a success. He relied upon the evidence of P.W.1, D.W.1 and also Exs.D.1 and D.19 letters on this aspect. This contention will now be examined. D.W.1 A.Nataraj is a resident of Mahaboobnagar and he says that in the year 1997 he was in film distribution business and he knows both A-1 and also P.W.1 Srinivas (the complainant). The substance of his version is that he was having financial dealings with P.W.1 even before 1997 and each one of them used to borrow money from the other and by May 1997 P.W.1 A.Srinivas owed him a sum of Rs.10,000/-. He then stated that P.W.1 wrote Ex.D.1 letter dated 26.05.1997 to him informing him that he would repay the said amount of Rs.10,000/- in the second week of July 1997 either by coming over to Mahaboobnagar or giving that amount to A-1 at Shadnagar so that A-1 may pass on that amount to him. P.W.1 in his cross- examination admitted that he knows D.W.1 Natraj of Mahaboobnagar and that he wrote Ex.D.1 letter to D.W.1. 9. The contents of Ex.D.1 letter which is a postal inland letter would show that P.W.1 in the said letter acknowledged the debt of Rs.10,000/- owed by him to D.W.1 and informed him that he himself would pay it to him either at Mahaboobnagar or give the amount to A-1 Mohd. Jahangeer so that Jahangir may pass on the amount to him. The contents of Ex.D.1 would also show that P.W.1 has acquaintance with A-1 and he also mentioned his name. It may be noted that once Ex.D.1 letter is admitted by P.W.1 it follows that he had admitted its contents also and in any event P.W.1 did not raise any dispute regarding the contents of this Ex.D.1. What should be noted is that D.W.1 says that after receiving Ex.D.1 he addressed Ex.D.19 letter to A-1 informing him about the contents of Ex.D.1 letter and requesting him to receive the amount. It should also be noted that both Exs.D.1 and D.19 are prior in point of time to the date of trap. It should be noted here that it also transpires from the evidence that the families of A-1 and A-2 are staying at Mahaboobnagar and A-1 has acquaintance with D.W.1 and both of them are also known to P.W.1. Thus it can be said that the contents of Ex.D.1 letter and Ex.D.19 letter are connected to each other. 10. A perusal of the cross-examination of D.W.1 would show that the prosecution was not in a position to elicit anything from D.W.1 or for that matter even its own witness i.e. P.W.1 to show that Exs.D.1 and D.19 were got up to suit the defence of A-1. Both Exs.D.1 and D.19 are postal inland letters and they bear the stamps of the despatch and delivering post offices. The defence of A-1 is that P.W.1 gave him the amount of Rs.10,000/- on the date of trap requesting him to pass on the amount to D.W.1 in connection with the repayment of debt. It is the version of D.W.1 that subsequently when he came to Shadnagar to find out what happened to his amount and enquired about A-1, he came to know about the present case and the ACB police at Hyderabad told him that they cannot do anything in the matter now. The trial court discussed Exs.D.1 and D.19 but dismissed them merely observing that such letters can be brought into existence without noticing that they are postal inland letters bearing the stamps of despatch and delivering post offices and further the postal department is a part of the Government of India. The prosecution was not in a position to establish that the above letters could be forged or they are got up letters and therefore the trial court also could not give any reasons for holding them as got up letters. P.W.3 V.Jeevan who is examined as an accompanying witness of the P.W.1 for the alleged bribe amounts in his cross-examination stated that P.W.1 gave the money to A-1 telling him to pass it on to Mahaboobnagar i.e. to D.W.1. 11. Sri Ramachandra Reddy pointed out that Shadnagar town and Mahaboobnagar town are nearby towns and there was no need for D.W.1 or P.W.1 to address such letters and they could be in contact with each other on telephone also and this is a circumstance which weighs against the defence. It may be noted that some persons may have the habit of writing letters even though their places or towns are at a short distance and one cannot explain why they write letters. In the present case Exs.D.1 and D.19 are in existence and they cannot be said to be got up documents as they contain the stamps of the despatch and delivering post offices of those dates which are prior to the date of trap. 12. Another point raised by Sri Ramachandra Reddy is that A-1 did not come up with this explanation before P.W.8 the DSP or P.W.2 the mediator in the post trap proceedings or even in his examination at the time of framing charges or even in Section 313 Cr.P.C examination and no suggestions were also made to that effect in the cross-examination of the witnesses. The contention of Sri Padmanabha Reddy is that A-1 gave the above explanation but it was not accepted by P.W.8 as incorporation of the same in the second mediators report would demolish the prosecution case. This apart it may be noted that even if an accused does not disclose his defence at the time of framing the charge or even in Section 313 Cr.P.C examination that cannot be a minus point for him when prosecution witnesses themselves give answers or make admissions which probablise his defence which is disclosed in trial. In my opinion the answers of P.W.1 regarding Exs.D.1 letter which probablise the version of D.W.1 are enough to accept the defence of A-1. It may also be noted that it is now settled position that an accused may establish his defence by preponderance of possibilities and the above evidence more probablises his defence. 13. Then the following are the other circumstances which are pointed out by Sri Padmanabha Reddy to show that A-1 could not have demanded the amount as he was not in a position to do any favour to P.W.1. Regarding these circumstances pointed out by him, it may be noted that a case in Crime No.181/1996-97 of Shadnagar Excise Station was already registered against P.W.1 and others regarding discovery of certain non-duty paid liquor in the poultry farm premises of one D.V.Rami Reddy at Shadnagar. This case was admittedly registered at the instance of P.W.4 Maqsood Ilahikhan an Excise Superintendent and he spoke about the raid on the above poultry farm premises and registration of the above case. Then P.W.5 Sriramulu the then Superintendent of Prohibition and Excise of Mahaboobnagar also spoke about the above raids and the registration of the said case. The above case in Crime No.181/1996-97 was registered not suomotu by or on any raid conducted by A-1 and A-2 but at the instance of the above officers who were superior in rank to A-1 and A-2. Added to this the version of P.W.1 himself shows that on 10.07.2007 after he allegedly met them, both A-1 and A-2 took an inventory of his shop and sealed it. This taking up of inventory and sealing of the P.W.1’s shop occurred after the suspension of the licence of P.W.1’s shop which took place on 09.07.1997 admittedly under the instructions of the superiors of A-1 and A-2. 14. The prosecution version shows that A-1 and A-2 demanded the money from P.W.1 for not doing any official favour for him in connection with the above case but for not harassing him in connection with the said case. It may be noted that when the raids were conducted by the superior officers with their task forces which resulted in the registration of the above case and which also resulted in the suspension of the licence of P.W.1 by a superior officer it is difficult to accept P.W.1’s version about the demand of bribe from A-1 and A-2 as they will not be in a position to do any favour for him as the raids in the case were conducted and the licence of P.W.1 was suspended under the orders of the superiors. This apart there are discrepancies in the evidence of P.W.1 regarding the dates of demand also and it is not necessary to go into them as the above two circumstances in my opinion more probablise the defence of A-1 which has the effect of demolishing the prosecution case or in any event placing the prosecution’s version in a thick cloud of doubt. 15. Sri R.Ramachandra Reddy to bolster up his contention relied upon two decisions of the Supreme Court one given in A.Abdul Kaffar v. State of Kerala[1] and the other given in B.Noha v. State of Kerala[2]. In the first case the defence of the public servant was that he received the amount in question as advance payment of sales tax due from the complainant for which an official receipt was also issued. This defence was rejected by the Supreme Court on the ground that the public servant did not come up with that explanation before the investigating officer at the earliest point of time and also on a conclusion that the receipt was not genuine and further on a finding that the complainant therein denied the above defence of payment of sales tax. It should be noted that in the first case the facts as given in the judgment would show that the defence failed to elicit anything from the complainant which probablised the defence of the public servant. That is not the case here. P.W.1 has admitted Ex.D.1 letter and Ex.D.19 letter and also stated that he has acquaintance with D.W.1 and his version also shows that he has acquaintance with A-1 also. 16. In the second case the defence sought to discredit the evidence of the complainant and the other relevant witnesses on the ground that they were interested witnesses. The facts therein and the defence are entirely different from the one in the present case and it is not necessary for this court to state them. In my opinion, both the above cases are not comparable with the present one with regard to the principles relating to appreciation of evidence. It may also be noted that there cannot be any precedential guidance for mere appreciation of evidence. 17. In the present case the above circumstances preponderantly shows that the defence of A-1 can be accepted. It is true that at the time of framing the charges against him A-1 took a plea of total denial and similarly in his statement under Section 313 Cr.P.C also he took a plea of total denial. He however filed a written statement before the trial court explaining the circumstances and he also explained about the plea of defence relating to the debt owed by P.W.1 to D.W.1. His version is that at the time of drafting the second mediator’s report he gave the above explanation to P.W.8 the DSP but he did not record it. Similarly a perusal of the cross-examination of P.W.8 would also show that his counsel made suggestions to P.W.8 regarding the defence of A-1 based on the debt owed by P.W.1 to D.W.1 but P.W.8 denied them. However, in a case like this where the defence version stands more probablised in the evidence the failure of the accused to give an explanation at the earliest point of time cannot be a ground to reject it. Thus the contentions of Sri Ramachandra Reddy on this aspect cannot be accepted. 18. That takes me to the defence of A-2. It may be noted that P.W.1 himself in his chief-examination stated that after giving money to A-1 in his house he went to A-2 and A-2 also demanded him the amount and he counted it and kept it beneath the pillow of the bed on which he was lying. It may then be noted that it is the version of P.W.1 that after giving the money to A-2 he came back to the room or place where A-1 was standing and that P.W.3 V.Jeevan who is an acquaintance of P.W.1 was also with A-1 and that he informed both of them about giving of money to A-2 also. It is the prosecution version that after receiving the signals the ACB police party went to the room of A-2 also and recovered the amount from the bed. 19. P.W.8 the DSP who laid the trap has in his evidence stated that after receiving the complaint of P.W.1 and arranging the trap he called P.W.3 who accompanied P.W.1 at that time to go with or accompany P.W.1 when he goes to A-1 and A-2 for giving the bribes and “hear and witness the transactions that would take place between P.W.1 and A-1 and A-2. Now as seen supra P.W.1 himself in his chief examination stated that P.W.3 did not accompany him when he went into the room where A-2 was available. P.W.3 also confirmed this. Thus what transpired between P.W.1 and A-2 is not known to P.W.3 and there is no other evidence to corroborate the version of P.W.1 regarding what transpired between him and A-2. 20. To repeat the version of P.W.1 is that A-2 counted the money and took it, whereas the version of A-2 is that he never took the amount from P.W.1 and on the other hand when P.W.1 offered him the amount he refused to take it and “pushed the amount with his right hand” and then the cash fell on the cot and he explained that his relevant hand was smeared with Phenolphthalein power in that manner. His further version is that after the cash fell on the cot P.W.1 insisted A-2 to take the amount and when he refused P.W.1 himself kept the cash beneath the pillow and thereafter trap party entered the room. This is the line of defence taken by A-2 in the cross examination. It may be noted that so far as A-1 is concerned, the evidence of D.W.1, the contents of Exs.D.1 and D.19 letters and also the evidence of P.W.3 would show that P.W.1 cannot be said to be a reliable witness. This will have a bearing on the case against A-2 also. 21. In the charge sheet it is stated that A-2 worked as Excise Inspector at Shadnagar Excise Station from 22.06.1997 to 18.07.1997 and this 18.07.1997 is two days after the alleged trap which was laid on 16.07.1997. P.W.5 Sriramulu the then Superintendent of Prohibition and Excise, Mahaboobnagar, in his cross-examination stated that A-2 was posted at Shadnagar on 07.07.1997 after one Padmareddy who was the Excise Inspector there went on leave. The prosecution did not make it clear whether A-2 was posted at Shadnagar on 22.06.1997 or 07.07.1997. In either case by the date of trap his tenure at Shadnagar was less than one month and if 07.07.1997 is taken as the date of his posting by the date of trap his tenure was just about ten days at Shadnagar. By that date Crime No.186/1996-97 was already registered against P.W.1 and it would be improbable to believe that he made a demand on P.W.1 for bribe on 02.07.1997 or even subsequently. 22. It may be noted as already mentioned that P.W.1 has become an unreliable witness so far as A-1 is concerned. Further having regard to the fact that the earlier case i.e. Crime No.186/1996-97 was registered against P.W.1 and others at the instance of superior police officers and his shop was also sealed on the evening of 10.07.1997 on the orders of the superior police officers it is difficult to believe that A-2 would have demanded bribe on 02.07.1997 or 10.07.1997 or even on 14.07.1997 having regard to his short tenure in the above circumstances. In any event he could not have done any favour on his own as everything against P.W.1 by that date was done at the instance of superior police officers. 23. To repeat, what transpired between P.W.1 and A-2 has happened only between them and P.W.3 who was directed to watch the transactions between them was not present, even according to P.W.1. In the above circumstances having regard to the unreliable nature of the testimony of P.W.1 against A-1, it follows that P.W.1 has to be treated as an unreliable witness even to uphold the charge against A-2. In the above circumstances the trial court’s view regarding the culpability of A-2 also cannot be sustained. 24. To sum up for the aforesaid reasons it follows that the charges brought against A-1 and A-2 cannot be held as proved. Accordingly these criminal appeals are allowed and the impugned judgment of the trial court is set aside and A-1 and A-2 are acquitted. The bail bonds of A-1 and A-2 shall stand cancelled and the fine amounts if any paid by them shall be refunded after the expiry of the time available to the prosecution to pursue its remedies against this judgment. ______________________ N.RAVI SHANKAR, J 9th November 2011 CVRK [1] (2004) 9 SCC 333 [2] (2006) 12 SCC 277