HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2434 OF 2004 Dated 10-03-2011 Between: Y. Vidyasagar ……..Appellant And: State of A.P., rep. by PP for ACB Cases, High Court of A.P ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2434 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad in C.C.No.30 of 1994 on 4.11.2004. The appellant herein was prosecuted for an offence under Sections 7, 11 & 13(2) and read with Section 13(1) of the Prevention of Corruption Act, 1988 (for short, the Act) alleging that he has demanded and accepted Rs.300/- on 23.6.1994 at 4.45 p.m and thereafter as a gratification other than legal remuneration from Sri J. Rajeshwar Rao as a motive or reward for showing official favour with regard to putting up the file for grant of leave on the application of father of P.W.1 by name late Sri J. Sanjeeva Rao, then working as Live Stock Assistant in the office of the Assistant Director of Animal Husbandry, Animal Health Centre, Warangal for the period from 1.5.1994 to 30.6.1994 for 60 days and thereby obtained pecuniary advantage abusing his official position. The learned Special Judge has framed the charges under Sections 7 and 13(1)(d)(i) and read with Section 13(2) of the Act against the accused and the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges, examined P.Ws.1 to 6 and got marked Exs.P.1 to P.11 and M.Os.1 to 8. The accused on his behalf, examined D.W.1 as a defence witness. The learned Special Judge by taking into consideration of both oral and documentary evidence found the accused guilty for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and convicted and sentenced to undergo rigorous imprisonment for a period of one year for the charge under Section 7 of the Act and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month. The accused was further convicted and sentenced for charge under Section 13(1)(d)(i) and read with 13(2) of the Act to undergo rigorous imprisonment for 2 years and to pay fine of Rs.2,000/- in default to undergo simple imprisonment for 3 months. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the charges under Sections 7 and 13(1)(d) and read with Section 13(2) of the Act against the accused beyond reasonable doubt? The learned counsel for the appellant has pleaded that there is no demand and acceptance of the illegal gratification by the accused as the complainant himself turned hostile to the prosecution and according to him he has paid the amount to a mediator on the earlier two occasions and on the date of trap while he went to the office along with two constables, but the mediator was not available in the office and he enquired about the concerned Section clerk and came to know that he is the concerned clerk and he asked him about the sanction of leave of his father and he informed that he has already sent the file to the Joint Director and he kept the amount in the shirt pocket of the accused officer. The learned counsel for the appellant has further pleaded that the P.W.3 who is the mediator has not witnessed the accused demanding the illegal gratification and P.W.1 making the payment to him as he has stated in the cross-examination that in the post trap proceedings, it was mentioned that P.W.1 after payment of the bribe amount to the accused-officer informing him about the same. He further pleaded that even though the accused has not demanded the amount, the amount was trusted on him by P.W.1 and the same is the spontaneous explanation given by the accused. The learned counsel for the appellant has further pleaded that as on the date of trap, the file pertaining to the leave of the father of the P.W.1 was already processed by the accused and sent the same to the Joint Director for sanction. The learned Standing counsel for the A.C.B has pleaded that even though the P.W.1 has not supported the version of the prosecution with regard to the earlier illegal gratification made on two occasions for grant of leave of the father of the P.W.1 and at the time of trap, P.W.1 categorically stated that he has paid the amount to the accused and as per the evidence of P.W.3, the mediator and P.W.4 is the Investigating Officer, it is established that the phenolphthalein test conducted for on the hands of the accused gave positive result and the tainted money was recovered from the possession of the accused that itself proves the accused has demanded and accepted the illegal gratification. The learned The Standing Counsel has further pleaded that P.W.1 has given the complaint in his own hand writing making specific allegations against the accused demanding the illegal gratification for sanction of leave to his father and about his taking advice of P.W.2 and lodging the complaint. Therefore, the learned Special Judge has rightly taken the complaint given by the P.W.1 with regard to demand made by the accused and the prosecution could able to establish that the said amount was accepted by the accused as the same was recovered from his pocket and thereby the prosecution is entitled to draw the presumption under Section 20 of the Act and thereby proved the charges alleged against the accused. The learned Standing counsel has further pleaded that as on the date of trap the file relating to sanction of leave of the father of the P.W.1 was with the accused and the said file was returned by the Joint Director on 1.6.1994 with an endorsement put up with rule position and from 1.6.1994, the accused kept the file with him without processing the same expecting the illegal gratification from the P.W.1. Thus, the prosecution could able to establish the demand and acceptance of the illegal gratification by the accused and hence the learned Special Judge has rightly convicted the accused for both the charges. According to the prosecution, late father of P.W.1 J. Rajeshwar Rao was working in the office of the Assistant Director of Animal Husbandry, Animal Health Centre, Warangal as Live Stock Assistant and he was suffering with paralysis from 24.1.1993 and he applied for sanction of two months earned leave to the Joint Director of Animal Husbandry, Warangal on medical grounds on 27.12.1993 and P.W.1 has approached the accused to put up the note files for sanction of the leave of his father and the accused officer has demanded and accepted an amount of Rs.500/- as illegal gratification from P.W.1 on the first occasion and again on the 2nd occasion for grant of leave from 1.3.1994 to 30.4.1994 demanded and accepted Rs.300/- as illegal gratification and when P.W.1 approached the accused on 22.6.1994 for further sanction of leave for two months from 1.5.1994 to 30.6.1994, the accused demanded an amount of Rs.300/- as illegal gratification and P.W.1 was not willing to pay the amount and informed the same to P.W.2 and on his advise, he has lodged a complaint with the Deputy Superintendent of Police, A.C.B, Warangal Range on 22.6.1994 at 1.30 p.m and basing on which a trap was arranged by the A.C.B officials on 23.6.1994 at 4.45 p.m and the said trap was successful, as the phenolphthalein test conducted on the left hand fingers and shirt pocket of the accused gave positive result and the tainted amount of Rs.300/- was recovered from the possession of the accused from his shirt pocket. The complainant (P.W.1) who was working as Typist in C.T. office, Hanumkonda has stated in his chief-examination that his father was working as Livestock Assistant in the office of Animal Husbandry department at Warangal and he was suffering with paralysis and died. While he was in service, his father asked him to pursue the leave application in the office of the Joint Director, Animal Husbandry department. He went to the office of the Joint Director and he met one person in the office and he told him the purpose of his visit to that office and the said person told him that his work will be done if he gives Rs.500/- to him and he reported the same to his father and then his father asked him to go and give Rs.500/- to him and get the leave sanctioned and accordingly he has paid Rs.500/- to the said person and got the leave sanctioned. Thereafter his father sent another application for further extension of leave and he went to the office of the same department and met the same person who has taken Rs.500/- earlier and the said person asked him to give Rs.300/- and he paid the same and reported the same to his father. Thereafter his father sent another application for extension of leave and then he went to the office of the same department and met the same person and the same person again demanded Rs.300/- and his father asked him to tell since already amounts were paid to him request him to see that the leave is sanctioned without any amount. When he approached the said person, he refused to do that work without payment of money. Then he reported the same to his brother-in-law P. Janardhana Rao and who advised him to give a complaint to the A.C.B officials and on his advise, he went to the A.C.B office and met with Sudhamani Rao and complained to him as to what all happened. He told him that one mediator had taken amounts from him. Then on the dictation of Sudhamani Rao, he drafted the complaint. He asked him to come on the next day along with proposed bribe amount of Rs.300/-. Accordingly, he went to him on the next day morning. Sudhamani Rao introduced him to the DSP and he was asked to wait outside. He gave Rs.300/- to Sudhamani Rao, C.I which consisted of 1 hundred rupee note and 4 fifty rupee notes. Sudhamani Rao came out of the office where he was sitting and kept the currency notes in his shirt pocket by informing him that some powder was applied to the currency notes. He instructed him to go to the office and give the currency notes to the mediator or to any other clerk who are available in the office. Then on the same day evening DSP and his staff went in a jeep to the office and the mediator who was demanded Rs.300/- was not available in the office. He enquired in the office about the section clerk then he came to know that the AO was the section clerk and he went to him and introduced himself and when he asked him about the leave application of his father he told him that he sent the application to the Joint Director and told him that one mediator demanded bribe, he did not ask for any money. Then he kept the currency notes in the shirt pocket and came out and informed the same to the Sudhamani Rao, Circle Inspector and he asked him to go away. At this stage, the said P.W.1 was declared as hostile to the prosecution and in cross- examination by the Special Public Prosecutor, he denied about the contentions of the prosecution but admitted that he has studied upto graduation and Ex.P.1 was the complaint given by him which was in his hand writing. He admitted that it is mentioned in Ex.P.1 complaint, that on first occasion and on second occasion on the demand of accused only he gave the amounts to the accused. But he added that he was asked to write that by the Inspector of A.C.B and then only he wrote like that. He has also further stated that they will take the complaint if the name of the clerk is not mentioned. Therefore, the P.W.1 who is the complainant has turned hostile to the prosecution and according to him he trusted the money into the pocket of the accused officer without any demand. It is the defence of the without demand the amount was trusted on him and admittedly in the pre-trap proceedings, it was mentioned that A.O has stated that the money of Rs.300/- was kept in his shirt pocket without making any demand. The learned Special Judge has observed that as the P.W.1 has given two different versions , he is not a trustworthy witness and so his entire testimony has to be excluded from the record and basing on the said observation of the Special Judge, the learned counsel for the appellant has pleaded that when the entire testimony of P.W.1 is excluded and not believed, the prosecution has failed to establish the demand made by the accused and with regard to the acceptance of the amount, P.W.1 trusted the same on the accused and as such the demand and acceptance was not established by the prosecution and pleaded that unless the demand and acceptance is proved, the prosecution is not entitled to draw the presumption under Section 20 of the Act and in support of his contention he relied upon a decision rendered in Sita Ram v. The State of Rajasthan[1] wherein the Apex Court has held: “When the demand of the bribe amount by the accused from the complainant is not proved, the story of the payment of money by the complainant is also not established beyond reasonable doubt and presumption under Section 4(1) of the Act cannot be drawn for convicting the accused.” The other decision relied upon by the appellant’s counsel is that Suraj Mal v. The State (Delhi Administration)[2] wherein the Apex Court has held: “In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable.” The other decision relied upon by the appellant’s counsel is rendered in V.Venkata Subbarao v. State[3] wherein the Apex Court has held: “The presumption under Section 20 of the Act cannot be drawn when the demand by the accused is not proved.” The other decision relied upon by the appellant’s counsel is rendered in S.P. Paulraj v. State[4] wherein the Madras High Court has held: “When no evidence showing that the accused demanded any illegal gratification from the complaint prior to the trap or even at the time of trap and mere proof of receipt of money by accused in absence of proof of demand of illegal gratification would not be sufficient to prove guilty of the accused.” On the other hand, the learned Standing Counsel for the A.C.B has relied upon a decision rendered in B. Noha v. State of Kerala and another[5] wherein it was held: “When it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It is further held: “When an amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification.” Therefore, in view of the above said decisions, it has to be examined as to whether the prosecution could able to establish the demand and acceptance of illegal gratification by the accused? As already observed above, the learned Special Judge has rightly observed that the testimony of the P.W.1 cannot be relied upon nor it can be used for proving the case of the prosecution or defence theory. But the learned Special Judge has found that the same can be accepted to the extent of lodging the complaint Ex.P.1 in view of the admission made by him in the cross-examination. P.W.1 in his chief- examination itself has stated that he approached his brother-in-law P. Janardhana Rao and he informed about the same and he advised him to lodge a complaint with the A.C.B. But he pleaded that on the dictations of the Circle Inspector of A.C.B he drafted the complaint and in the cross-examination he admitted that he studied up to B.A and Ex.P.1 was given in his own hand writing and he has mentioned therein that on first occasion and second occasion only on the demand of A.O, he gave the amount to A.O. Therefore, admittedly Ex.P.1 is the complaint given by the P.W.1 and wherein he categorically stated about the payment of the amount of Rs.500/- and Rs.300/- on the earlier two occasions to the accused for granting of leave of his father and when he approached for third time for sanction of leave from 1.5.1994 to 30.6.1994 he demanded him for Rs.300/- and then he consulted his brother-in-law P. Janardhana Rao and on his advise only he lodged the complaint for laying the trap against the accused. Therefore, from the above, it is evident that he has categorically mentioned about his meeting the accused and paying the illegal gratification on two occasions and on the third time on 22.6.1994 he demanded for Rs.300/- for sanction of leave from 1.5.1994 to 30.6.1994 and thereafter he lodged the complaint. The version of P.W.1 that he is mentioning the same at the instance of the Inspector of A.C.B cannot be believed as there is no enmity between the Inspector of A.C.B and the accused and there is no interest for them to make false averments in the complaint given by the P.W.1 against the accused officer and it appears as the father of the P.W.1 is no more he do not want to involve the accused in this case. With regard to the P.W.1 taking advise of his brother-in-law P.W.2 has categorically stated about P.W.1 informing him on 22.6.1994 by coming to his house about the accused taking the bribe from him for two occasions and again he demanded Rs.300/- for third time and he was not willing to pay the amount and asked for his advise and he gave an advise to go to the office of A.C.B and lodge a complaint. In the cross-examination, he admitted that he knows Sudhamani Rao, Circle Inspector of A.C.B but he specifically stated that he is not his friend. He denied that P.W.1 did not take his advise why A.O demanding the bribe amount from him and nothing was suggested to him in the cross-examination why he has deposing falsely against the accused officer. Therefore, from the evidence of P.W.2, it is evident that on the advise of P.W.2, P.W.1 has lodged the complaint with the A.C.B officials against the accused. With regard to laying of trap, the prosecution has examined P.W.3 who is the mediator. According to him he has followed the P.W.1 to the office of the accused and according to him the accused was sitting in the first floor of the building by the time he went to their office and he found P.W.1 was talking A.O and P.W.1 gave the currency notes to the accused and which was received by the accused and he kept the same in left side shirt pocket and accused asked the P.W.1 to come on next day Himself and P.W.1 came out and while he was standing at the stair case, P.W.1 went down in the ground floor and gave signal to the trap party. On receiving the signal, the trap party came inside by asking P.W.1 to wait outside. Then himself and the trap party went to the section of AO and DSP after introduction got prepared two tumblers of carbonate solution and when the accused rinsed his right hand fingers on the request of DSP, there is no change in the colour and when AO rinsed his left hand fingers in the other glass tumbler, it turned into pink colour. When the DSP questioned the AO about the bribe amount he kept quiete for some time and thereafter took out currency notes from the shirt pocket and produced the same and the number tallied. But in the cross-examination, he has stated that he mentioned in the post trap proceedings that P.W.1 after payment of bribe amount to AO informed him about the same. Therefore, on the said admission of P.W.3 in the cross-examination, the learned counsel for the appellant has pleaded that when he was present at the time of payment of the amount by the P.W.1 there is no necessity for P.W.1 to inform him about the payment of amount to the accused officer and therefore, it has to be presumed that P.W.3 was not present at the time of making the payment to the accused officer. The said contention of the learned counsel for the appellant cannot be accepted. Simply because P.W.1 has stated that the accused has informed him about the payment of the amount, it cannot be said that he was not present at the time of payment, when he categorically stated about the same in the chief-examination and the same was also mentioned in Ex.P.4, which is pre-trap proceedings. Therefore, from the above, it is evident that the accused has demanded and accepted the illegal gratification and as per the evidence of the Investigation Officer P.W.6, the said amount was seized from the shirt pocket of the accused. The learned counsel for the appellant has further pleaded that as on the date of trap, the file pertains to the father of PW.1 was already processed by the accused and he sent the same to the Joint Director for sanction. In this regard, the prosecution has examined P.W.4 who worked as Superintendent in the office of the Joint Director, Animal Husbandry, Warangal and according to him on 18.5.1994, he received the leave application of J. Sanjeeva Rao for sanction of two months E.L from 1.5.1994 to 30.6.1994 on medical grounds. He sent the application to the accused-officer who was the concerned clerk through Gazetted Manager and Joint Director. On 1.6.1994, he received back the leave application along with the note of the accused-officer. Then he made a note on the file asking whether Sanjeeva Rao was entitled for the leave in continuation of his earlier leave and sent the file to the Gazetted Office Manager and on the same day from the said officer the file was sent to Joint Director. On 1.6.1994, Joint Director with his endorsement sent the file to the accused-officer. His statement was recorded by the A.C.B officials. Ex.P.6 is the said file consisting of 7 sheets. In the cross-examination, he has stated that as seen from the file Ex.P.6 as on 1.6.1994, the file was with Joint Director and his endorsement is available. He added that after making endorsement on the file by the Joint Director, the file was sent to the concerned clerk and as seen from the said file, there is no correspondence after 1.6.1994. He cannot say whether the file was with the Joint Director as on the date of the trap. Therefore, according to P.W.4, the file was sent to the Joint Director and the Joint Director has returned the said file on 1.6.1994 with his endorsement. With regard to the seizure of the file from the possession of the accused, P.W.6 who is the Investigating Officer has stated that he seized Ex.P.6 file. Along with Ex.P.6, he also seized original file in R.C.No.1384 dated 30.3.1994 containing sanction of leave of Sri J. Sanjeev Rao consisting of 7 sheets. It is Ex.P.9. He also seized another original file R.C.No.98/B/94 dated 10.1.1994 pertaining to sanction of leave to Sri J. Sanjeev Rao consisting of 9 sheets. Ex.B.10 is the said file. In the cross-examination, he has stated that the Joint Director is the competent authority for sanction of leave to the father of the P.W.1 and nothing was