IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.306 OF 2003 Between: Bonam Venkata Narayana Kumar ..... Appellant/Accused AND The State of A.P., Rep. by A.C.B., Eluru Range. ..... Respondent/Complainant The Court made the following: JUDGMENT: This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 17.03.2003, in C.C.No.14 of 1998, on the file of the learned Special Judge for SPE and A.C.B. Cases, Vijayawada, whereunder and whereby the appellant/sole accused was found guilty of the offences punishable 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 a fine of Rs.2,000/-, in default to suffer Simple Imprisonment for a period of six months under each count, and both the sentences were ordered to be run concurrently. 2. The brief facts, that are necessary for disposal of the prosecution case, may be stated as follows: P.W.1-K. Veera Venkata Reddy is a resident of Tanuku, West Godavari District. P.W.2-K. Narayana Reddy is the Proprietor of Bhanu Electrical Stores and father of P.W.1. P.W.2 underwent by-pass surgery in the year 1997. So, P.W.1 started looking after the business of electrical stores at Tanuku. On 23.01.1998, the Accused Officer, who is the Deputy Commercial Tax Officer (for short, “DCTO”) visited the electrical stores of P.W.1 and after verifying the account books, he demanded a sum of Rs.5,000/- as bribe by assuring that he would not impose any penalty at the time of assessment of tax. P.W.2 was also present in the shop at that time. P.W.1 informed the Accused Officer that the annual turnover of the shop was only Rs.2,50,000/- and that he cannot pay the demanded bribe amount. But the Accused Officer left the place without hearing his request. And on 27.01.1998, P.W.1 went to the office of DCTO, Tanuku, and expressed his inability to pay the demanded bribe amount. Then, the Accused Officer reduced the demanded amount from Rs.5,000/- to Rs.2,000/- and threatened that he would cancel the Registration Certificate if P.W.1 failed to pay the bribe amount. On the same day, P.W.1 informed about the demand of the Accused Officer to P.W.2, who in turn advised P.W.1 to give a report to the Anti Corruption Bureau (for short, “A.C.B.”). On that, P.W.1 went to the office of P.W.10-the Deputy Superintendent of Police, A.C.B., on that day and presented a written report i.e., Ex.P1. On that, P.W.10 instructed him to come on 29.01.1998 at 7.00 a.m. along with the demanded bribe amount of Rs.2,000/-. According to P.W.10, after receipt of Ex.P1-Report from P.W.1, he made confidential enquiries about the Accused Officer as well as about the genuineness of Ex.P1-Report given by P.W.1 and also obtained permission from his higher officials to lay the trap and also secured P.W.8-Ch.S.V Satyanarayana, the then Agricultural Officer, Pedavegi Mandal, and another to act as Mediators for the trap and asked them to come on 29.01.1998 at 7.00 a.m. On 29.01.1998 at about 6.00 a.m., basing on Ex.P1-Report, P.W.10 registered a case in Crime No.1/ACB- EWG/98 for the offence under Section 7 of the Act and submitted Ex.P21-First Information Report to all the concerned. P.W.1 and the Mediators came to the office of P.W.10 at 7.00 a.m. and after that, P.W.10 called P.W.1 and introduced him to the Mediators and asked them to ascertain the genuineness of Ex.P21-First Information Report. P.W.1 also stated before them that the contents of Ex.P1-Report were true and correct. Thereafter, P.W.10, with the help of his staff and one Police Constable, explained the significance of the Phenolphthalein Powder Test in detail. P.W.10 further instructed P.W.1 to hand over the amount to the Accused Officer only on his further demand and instructed him to come out of the office and to wipe out his face with hand kerchief in case the Accused Officer accepts the bribe amount. Thereafter, P.W.10 got prepared E.P14-First Mediator’s report and all of them signed on it. Then, the trap party, consisting P.Ws.1, 10, Mediators and other Inspectors, started in a Government van bearing No.AHO 5972 at 9.15 a.m. and reached old bus stand center, Tanuku, at 11.15 a.m. P.W.10 once again reiterated his instructions to P.W.1. Then, P.W.1 proceeded towards the office of the DCTO and after he entered into the office, which is situated in the 1st floor of Gamini Complex, the trap party stayed in the ground floor and took vantage positions. According to P.W.1, by the time he went to DCTO Office, the Accused Officer was not there and after 15 minutes, the Accused Officer came to the Office. At about 12.00 noon, after visitors left the room of the Accused Officer, P.W.1 entered into the room. On seeing P.W.1, the Accused Officer questioned him as to whether he brought the bribe amount, the day book and ledger or not. P.W.1 replied that he brought money and books and handed over the books and ledger i.e., Exs.P2 and P3. The Accused Officer verified the books and demanded him to pay the bribe amount. P.W.1 paid the tainted amount of Rs.2,000/-, which is marked as M.O.1, to the Accused Officer and he received it and kept in his shirt pocket and assured P.W.1 that he would not impose any penalty. Then, P.W.1 came out of the office and gave the pre-arranged signal. On that, the trap party proceeded to the 1st floor and instructed P.W.1 to wait outside of the office. The trap party found the Accused Officer while coming out of his room, intercepted him and introduced themselves to him. Then, on the request made by P.W.10, the Accused Officer came to the office room and P.W.10 himself prepared the Sodium Carbonate Solution in a glass tumbler and asked the Accused Officer to rinse his right hand fingers and on doing so, the solution turned into pink colour. Then, P.W.10 asked the Accused Officer to produce the bribe amount of Rs.2,000/-. On that, the Accused Officer removed his shirt and suddenly threw it on the ground and on that, the wad of currency notes and another bunch of Rs.100/- denomination notes and a locker key have fallen on the ground. On verification by the trap party, the wad of currency notes were found to be 20 in number and their numbers were tallied with the numbers noted in Ex.P14-Pre-trap Proceedings, and the other notes totaling Rs.1,650/- found to be the Accused Officer’s personal money and the same was returned to him. Then, P.W.10 prepared the Sodium Carbonate Solution in another glass tumbler and when the inner lining of the shirt pocket of the Accused Officer was subject to the Sodium Carbonate Solution Test, it turned into pink colour. Then, P.W.10 collected the resultant solutions into three separate bottles, which are marked as M.Os.4 to 6, and sealed it after proper attestation. Thereafter, P.W.10 questioned the Accused Officer as to what happened and the version of the Accused Officer that the money was suddenly thrusted into his shirt pocket by P.W.1 by requesting him not to inspect his shop was recorded in Ex.P17-Mediator’s Report. Then, P.W.10 seized all the relevant records and noted them in Ex.P17-Mediator’s Report. P.W.10 also prepared a rough sketch of the scene of offence, which is marked as Ex.P16. Thereafter, the Accused Officer was arrested and released on bail. P.W.10 also recorded the statements of P.Ws.1 to 6 under Section 161 Cr.P.C. and handed over further investigation to P.W.11-the Inspector of Police, A.C.B., Eluru. P.W.11 took up further investigation and after collecting the other relevant exhibits and after obtaining necessary sanction order, which is marked as Ex.P20, he filed the charge sheet against the Accused Officer for the offences punishable under Sections 7, 13 (1) (d) read with 13 (2) of the Act. 3. The learned Special Judge for SPE & A.C.B. Cases, Vijayawada, framed the following charges against the Accused Officer: “Firstly: That you, being a public servant to wit. Deputy Commercial Tax Officer-I, Tanuku, on the 23rd day of January 1998 at the time of inspection of Bhanu Electrical Stores, Tanuku, you demanded Rs.5,000/- from Karri Veera Venkata Reddy and Karri Narayanareddy for not recommending cancellation of registration certificate on the ground of non-maintaining of records and to consider annual assessment without raising any objection, and in continuation of your earlier demand, on the 27th day of January 1998 when Karri Veera Venkata Reddy approached you in the office of Deputy Commercial Tax Officer-I, Tanuku, and expressed his incapacity to pay the above demanded bribe dated 23-1-1998, you agreed to accept Rs.2000/- as bribe with instructions to pay within two days or otherwise the Registration Certificate of Karri Veera Venkata Reddy will be cancelled on some pretext or other, and that you on the 29th day of January, 1998 at 1 P.M., at the office of D.C.T.O.-I, Tanuku, in continuation of your earlier demands dated 23-1-1998 and 27-1-1998 (referred to above) you made further demand and accepted Rs.2,000/- from Karri Veera Venkata Reddy as gratification other than legal remuneration as a motive or reward for forbearing an official act to wit, for not recommending for cancellation of Registration Certificate of Bhanu Electrical Stores belonging to Karri Veera Venkata Reddy, and thereby comitted an offence punishable under section 7 of P.C.Act 1988 and within my cognizance; Secondly: That you, on the 29th day of January, 1998 at 1-00 P.M., being public servant to wit. Deputy Commercial Tax Officer-I, Tanuku, at the office of Deputy Commercial Tax Officer-I, Tanuku, by abusing our position as such public servant, obtained for yourself pecuniary advantage to the extent of Rs.2,000/- from Karri Veera Venkatareddy, and thereby committed an offence punishable under section 13 (1) (d) (ii) of Prevention of Corruption Act 1988 punishable under section 13 (2) of Prevention of Corruption Act 1988 and within my cognizance.” When the above charges were read over and explained to the Accused Officer in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P24, besides case properties M.Os.1 to 8. 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.Ws.1 & 2 were examined and Exs.D1 to D6 were marked. On behalf of the Court, Exs.C1 to C3 were marked. On behalf of the witness, Exs.X1 to X35 were marked. 6. The trial Court, after consideration of evidence on record, rightly found the Accused Officer guilty of the offences punishable under Sections 7 & 13 (1) (d) (ii) read with 13 (2) of the Act and accordingly, he was convicted and sentenced 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 against the Accused Officer beyond all reasonable doubt for the offences punishable under Sections 7 and 13 (1) (d) (ii) 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 the alleged demand on 23.01.1998 made by the Accused Officer in the shop of P.W.1 is found to be false because on that day till 9.00 p.m., the Accused Officer was in the office attending to the Assessment Orders relating to certain shops, and therefore, there was no scope or possibility for the Accused Officer to demand any amount much less Rs.5,000/-; that P.W.1 has got every reason to implicate the Accused Officer because he was persistently asked to pay the annual tax due to the department; that the entire case rests upon the solitary testimony of P.W.1 with regard to the demand and he cannot be put in the category of wholly reliable; that the Accused Officer received M.O.1-tainted currency notes from P.W.1 towards advance tax payable to the Government in pursuance of Ex.P6- notice issued by DCTO-I, Tanuku, requesting to pay tax of Rs.2,000/- in addition to the tax of Rs.3,000/- which was already paid by him; that when P.W.1 requested the Accused Officer that he would pay that amount towards advance tax, the Accused Officer refused to receive the same on the ground that audit was being conducted in the office, but P.W.1 thrusted the amount in the shirt pocket of the Accused Officer; that while the Accused Officer was going to bank for some other purpose he was caught by the trap party; that the evidence of P.W.2 would go to show that a notice was served on him under Ex.P6 which was acknowledged by P.W.2 on 15.12.1997; that the prosecution tried to disown this document though it was seized by P.W.10 at the time of trap and that was shown to P.W.3-K. Ramamohana Rao, Assessment Clerk, DCTO-I Office, Tanuku, but to cover up the latches, the prosecution suppressed that fact and foisted a false case of this nature; that the evidence of D.W.2-S. Satyanarayana would clearly go to show that he also paid certain amount towards advance tax which was admittedly found in the cash chest of the Accused Officer; that the original demand notice with regard to the payment of tax can also be directly issued by the Accused Officer to the traders for payment of advance tax because the superior officials of the Accused Officer insisted the subordinates to collect the advance tax from all the traders; that therefore, there is nothing unusual for the Accused Officer to issue a notice like Ex.P6 to P.W.2 demanding him to pay the advance tax; that it is not safe to place any implicit reliance on the evidence of P.W.1 so as to arrive at a conclusion that the Accused Officer demanded Rs.5,000/- in the first instance and later, it was reduced to Rs.2,000/-, and hence, he prays to set aside the convictions and sentences recorded by the trial Court against the Accused Officer. 9. On the other hand, Sri V. Ravi Kiran Rao, learned Standing Counsel appearing for the Anti-Corruption Bureau (for short, "A.C.B."), contended that the Accused Officer visited the shop of P.W.1 on 23.01.1998, and after verifying the accounts books, the Accused Officer demanded Rs.5,000/- to show an official favour; that on 27.01.1998, when P.W.1 went to the office of the Accused Officer and expressed his inability to pay that amount, the Accused Officer reduced the amount from Rs.5,000/- to Rs.2,000/- ; that unwilling to give that amount, P.W.1 lodged Ex.P1-complaint, dated 27.01.1998; that P.W.1 has no grouse or enmity against the Accused Officer so as to implicate him in a false case of this nature, and so, P.W.1 can be put in the category of wholly reliable witness; that though the Accused Officer was not competent on his own accord to inspect the shop in question, still without taking any prior permission from the superior Officer, he visited the shop of P.W.2 and demanded P.W.1 to pay an amount of Rs.2,000/- to show an official favour; that if really, the amount of Rs.2,000/- was received by the Accused Officer towards payment of advance tax, certainly he would have kept the amount in the cash chest as he admittedly did in the case of D.W.2; that there was no need for P.W.1 to thrust the amount in the shirt pocket of the Accused Officer; that when the right hand fingers as well as the inner lining of the shirt pocket of the Accused Officer were subjected to Sodium Carbonate Solution Test, the solution turned into pink colour suggesting that the Accused Officer accepted the bribe; that Ex.P6-notice was brought into existence subsequent to the trap; that the said notice was ordered to be served on several traders, but it was served only on P.W.2; that the person who served categorically stated that he did not serve Ex.P6-notice on 15.12.1997; that the trial Court, after elaborate consideration of evidence on record, rightly found the Accused Officer guilty, and hence, there are no grounds to interfere with the same. 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. 11. 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. 12. It is not in dispute that P.W.2 is the owner of M/s.Bhanu Electronics, Tanuku. As P.W.2 underwent a by-pass surgery, his son-P.W.1, was looking after the affairs of the shop. The Accused Officer was working as the DCTO at the relevant point of time of the incident. The evidence of P.W.1 would go to show that the Accused Officer visited the shop of P.W.1 and verified the books of accounts relating to the Electrical Stores on 23.01.1998. The demand of Rs.5,000/- was made for not imposing any penalty at the time of assessment of tax. When P.W.1 expressed his inability to pay that amount, the Accused Officer left the shop. On 27.01.1998, P.W.1, on his own accord, visited the office of the Accused Officer. At that time also, the Accused Officer reiterated his demand of Rs.5,000/-. When P.W.1 expressed his inability to pay that amount, the Accused Officer reduced the amount from Rs.5,000/- to Rs.2,000/-. 13. With regard to the demand for showing an official favour i.e., not to impose any penalty at the time of the assessment of tax, there is no other evidence except the solitary testimony of P.W.1. P.W.10 has not sent any accompanying witness along with P.W.1 to hear or over hear the conversation between P.W.1 and the Accused Officer. The law is well settled that when a case rests upon the evidence of a solitary witness, it must be unimpeachable, true, trustworthy and reliable. If the evidence of a solitary witness is put in the category of wholly reliable, then law does not require any corroboration and in such circumstances, the evidence of the solitary witness can form a basis for conviction. 14. On this aspect, it is pertinent to refer to a decision reported in Vadivelu Thever v. State of Madras[1], wherein it is held thus: “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” Bearing the above principles in mind, it is to be seen whether the evidence of P.W.1 can be put in the category of wholly reliable? 15. It is not in dispute that the business of Bhanu Electrical Stores stands in the name of P.W.2. It is also not in dispute that the predecessor of the Accused Officer by name Smt.Satya Vani inspected the electrical stores on 04.08.1996. At that time, P.W.1 submitted the stock statement to her. Ex.X4 is the stock statement prepared and submitted by P.W.1. It is also not in dispute that P.W.1 paid a sum of Rs.1,000/- towards compounding fee and another sum of Rs.1,000/- towards tax on 21.08.1996. Ex.X5 is the Assessment Order, dated 21.08.1996. P.W.1 paid the provisional tax for the assessment years 1994-95, 1995-96 and 1996-97. It is also an admitted fact that the predecessor of the Accused Officer collected Rs.2,005/- towards tax for the year 1996-97. Exs.X5 and X6 are the Assessment Orders. They became final as no appeals were filed. It is also not in dispute that the Accused Officer, after taking charge, passed a refund order for a sum of Rs.1,048/- under Ex.X8. But no refund of money was made in view of the fact that refund amount had to be adjusted for the tax, due if any, in the future assessment. It is also not in dispute that the Accused Officer passed a provisional order on 18.07.1997 calling upon P.W.1 to show cause why a penalty of Rs.3,003/- should not be ordered, and as P.W.1 did not give any explanation to the show cause notice, the Accused Officer passed a final Penalty Order on 28.07.1997 under Ex.X12. It is also not in dispute that by way of challan, P.W.1 paid an amount of Rs.3,000/- on 15.09.1997. It is not in dispute that Bhanu Electrical Stores of P.W.2 is not a monthly assessee. P.W.1 has to pay the sales tax or advance tax on the turnover on yearly basis. It is in the evidence that the Accused Officer used to collect taxes directly from the traders and issue receipts in token of receiving the tax or advance tax as the case may be. It is also not in dispute that the higher officials conducted a meeting in Tanuku, prior to the trap, directing all the subordinates to take necessary steps in collecting the taxes or advance taxes from the traders to fulfill their targets. 16. The specific case of P.W.1 is that while he was present in the shop, the Accused Officer visited the shop on 23.01.1998 and inspected the books of accounts, and by that time, for showing an official favour i.e., not to impose any penalty at the time of assessment of tax, the Accused Officer demanded an amount of Rs.5,000/-. The learned Senior Counsel appearing for the appellant contended that the visit of the Accused Officer to the shop of P.W.1 on 23.01.1998 is highly improbable because the Accused Officer was attending to the finalisation of several Assessment Orders relating to the traders till 9.00 p.m., and therefore, there was no scope or possibility for the Accused Officer to go to the shop of P.W.1. It is not in dispute that the Accused Officer, in his capacity as a DCTO, has no authority to inspect the shop of P.W.1. No doubt, the Commissioner of Income Tax has given authorization for the DCTOs to inspect the shops, but without taking prior permission from the higher officials, the Accused Officer has no authority to inspect the same. 17. P.W.4, who is the Deputy Commissioner of Commercial Taxes, Eluru, at the relevant point of time of the trap, has categorically stated that circulars have been issued by him asking the DCTOs and other officials to inspect the firms, but that means, the DCTO who intended to inspect any firm, should take the prior permission from him as per the Government Orders. 18. No doubt, P.W.3, who was working as a Junior Assistant in the Office of the DCTO, at the relevant point of time of the incident, stated that under Ex.X16-Receipt, the department collected Rs.1,059/- from Ramu Fancy and General Stores, Tenali Town, basing on the inspection done on 12.01.1998; that by that time, the said Fancy Stores was not