THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL No.2605 of 2004 JUDGMENT: Appellant (admittedly a public servant) is the accused in C.C.No.22 of 2003 on the file of the Court of the Special Judge for C.B.I. Cases, Visakhapatnam (trial court). He was tried on charges under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short - the Act) on allegations of bribery. 2. The trial court, after considering the evidence, by its judgment dated 16.12.2004 convicted the appellant of both the above charges and sentenced him to undergo simple imprisonment for two years and a fine of Rs.2,000/- on each besides imposing default clause prison sentences. Questioning the said judgment, the appellant has come up with this appeal. 3. The case is a C.B.I. trap case. As the whole matter is now at large before this court it has to be considered in detail. The Prosecution case is this. The appellant, at the relevant time, was working as Inspector of Railway Protection Force (RPF) and was posted in its Marripalem Post in Visakhapatnam District and was admittedly a public servant within the meaning of the Act. P.W.1- K.Subrahmanyam is the de facto complainant and he was running a canteen at Railway Station at Simhachalam on the date of trap and there is no dispute on this aspect. 4. It is the version of the Prosecution that on 07.01.2003, at about 1.30 p.m., P.W.1 went to Marripalem R.P.F. Post as he was called by the appellant and at that time, the appellant immediately placed P.W.1 in the cell of the said post and went away and again, he returned at about 3.30 p.m. or 4 p.m. and forcibly obtained Ex.P-2 statement from him to the effect that he has committed certain violations such as selling eatables in trains, which he was not supposed to do as per rules, and for which violations, the appellant had the power to book cases. It must also be noted here that according to the Prosecution, the said statement, which was marked as Ex.P-2, was obtained by P.W.7-Ch.Venkata Ramana Murthy, the then Assistant Sub Inspector of the above Marripalem Post under the instructions of the appellant. 5. The further version of the Prosecution is that on the same day, i.e., on 07.01.2003, at about 6 p.m. or 6.30 p.m., the appellant called P.W.1 to his chambers in the Marripalem post and demanded a sum of Rs.5,000/- as bribe and threatened P.W.1 that if that amount was not paid, he would book cases against him but on the plea of P.W.1 that he could not pay the sum of Rs.5,000/- which was a large amount for him, the appellant reduced it to Rs.3,000/- and called upon P.W.1 to pay the said amount on the next day at any time and thereafter released him. 6. The further version of the Prosecution is that as P.W.1 was not willing to pay the said bribe amount of Rs.3,000/- also, he gave Ex.P-4-complaint in the C.B.I. Office on the next day evening i.e., on 08.01.2003 and a case was registered. This is not in dispute. 7. According to the Prosecution, P.W.9-N.Raja Rao, the Inspector of C.B.I., immediately made arrangements to lay the trap on the same night i.e., on the night of 08.01.2003 itself by giving suitable instructions to P.W.1 and also arranging two mediators. P.W.2-A.Govinda Krishna, the then Preventive Officer, Customs, Visakhapatnam, is one of the mediators while the other mediator is his colleague-N.Manmohan Reddy (not examined). It is not necessary to go into other details. It would be sufficient to note that in the pre-trap proceedings, the bribe money of Rs.3,000/- brought by P.W.1 was treated with phenolphthalein powder and the significance of sodium carbonate solution test was explained to P.W.1 and also the mediators and P.W.1 was instructed by the C.B.I. Inspector i.e., P.W.10 to go to the appellant and pay him the money on demand. Accordingly, P.Ws.1 and 2 and the trap party first went to Marripalem RPF Post for payment of bribe amount by P.W.1 to the appellant. However they were told that the appellant was at his house and thereafter P.Ws.1 and 2 went to the house of the appellant on the same night at about 10 p.m. or so and on seeing P.W.1., the appellant demanded the money and took the amount of Rs.3,000/-. Soon thereafter, P.Ws.1 and 2 came out and P.W.2 gave the pre-arranged signal to the trap party where upon P.W.10-The Inspector and the trap party officials rushed to the house of the appellant and recovered the amount of Rs.3,000/- from his house. 8. Regarding the recovery of the amount, it will be found in the evidence of P.W.1, P.W.2 mediator and P.W.9 Inspector and also Ex.P.8 second mediatornama, which was drafted for covering the post trap proceedings, that the amount was not recovered from the person of the appellant but it was recovered from underneath some cloth on which some idols were kept in an open almyrah/cup board in the first bedroom of the house of the appellant. The Prosecution’s plea is that the appellant himself has shown that place from where the amount was recovered and it is also its specific plea that before the recovery, the sodium carbonate solution test conducted on both the hands of the appellant proved positive indicating that he received the amount from P.W.1 and kept it at the above place from which it was recovered. The amount of Rs.3,000/- is marked as M.O.1. 9. The plea of the appellant throughout has been one of denial. From the cross examination of P.Ws.1 and 2 and also the Investigating Officer, it will be seen that the main defence of the appellant to explain the recovery of the amount from his house was that P.W.1 himself, on the pretext of meeting him (appellant), came to his house at about 10 p.m. or 10.15 p.m. on that night and as main door was kept open he stealthily entered into the house of the appellant and kept it in the almyrah in the first bed room from where it was found and later he went out of the house and knocked the door or gave the calling bell and as soon as he saw the appellant, he shook hands with him and talked to him about something and went away. This is how the appellant sought to explain the positive result of sodium carbonate solution test on his hands. His second defence is that he was not at all in RPF Marripalem police outpost from 10.40 a.m. to 6.40 p.m. or 7 p.m. on 07.01.2003 and consequently, the question of himself meeting P.W.1 on that day and demanding him the amount from him does not arise. The third defence relates to the motive for P.W.1 to falsely implicate the appellant. 10. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant argued that the defences of the appellant can be accepted as plausible or reasonable and that he is entitled to acquittal. He further says that the trial court erroneously ignored the above defences and erred in recording convictions. 11. On the other hand, Sri K.Kesava Rao, learned Standing Counsel-sum-Special Public Prosecutor appearing for the CBI argued that the evidence on record is sufficient to sustain both the charges brought against the appellant and the trial court has given sufficient reasons to record convictions and consequently, there is no ground to interfere with the judgment under appeal. 12. It has now to be seen whether the evidence on record is sufficient to sustain the charges brought against the appellant as held by the trial court, or the defences of appellant are acceptable as contended on his behalf. In a case like this where the charges are based upon trap, the prosecution must prove both demand and acceptance and therefore it has to be seen whether both these aspects are proved. 13. The case of the prosecution and the evidence on which it is based have been set out supra. I shall first refer to the plea of the prosecution about the acceptance of the bribe/tainted amount by the appellant and its recovery from his house. So far as this recovery is concerned P.W.2 A.Govinda Krishna the mediator who was also a public servant spoke about the same. The amount of Rs.3000/- which is the bribe money consisted of 2 notes of Rs.500/- denomination, 10 notes of Rs.100/- denomination, 17 notes of Rs.50/- denomination and 15 notes of Rs.10/- denomination. All these currency notes which were marked as M.O.1 were recovered from the almyrah in the first bed room of the house of appellant. In addition to this the evidence of P.W.2 the mediator and also P.W.9 the Inspector would show that the sodium carbonate solution test was conducted on the accused before the above recovery and it proved positive. Both P.Ws.2 and 9 stated that the appellant pointed out the place where the above currency notes were kept. There is no reason to doubt their evidence that the appellant showed the place where the currency notes were kept in his house. From the fact that sodium carbonate solution test proved positive on the hands of the appellant before the currency notes were recovered it follows that he earlier received them and kept at the above place. 14. To show that the appellant has received the above bribe amount from P.W.1 there is the evidence of P.W.1 and as well as P.W.2. Both of them stated that on the instructions of the ACB Inspector they both first went to the outpost and as appellant was not available there they went to the house of the appellant on that night and gave the bribe by pressing the calling bell button and the appellant opened the door and took the money from P.W.1 after making a demand for it. One suggestion which was made to P.W.2 was that only P.W.1 came to the house of the appellant but not P.W.2 and he was standing outside but this was denied by P.W.2. 15. In the cross-examination of P.W.1 the line of defence taken is that the appellant was in the second bed room looking after some work and the main entrance door was kept open and therefore P.W.1 stealthily opened the entrance door which was kept open and entered the first bed room which is near the entrance and kept the amount in the open almyrah/cup board there and silently went out and then gave the calling bell and after that the appellant came there and P.W.1 shook hands with him and talked something and went away. P.W.1 however denied this. 16. It may be noted that the appellant at the relevant time was working as Inspector in the Railway Protection Force. It is difficult to accept the above line of defence of the appellant that being an Inspector or for that matter anybody else in his position would have kept the entrance door open at about 10.00 p.m. in the night. The evidence of both P.Ws.1 and 2 would show that the appellant came and spoke to P.W.1 and demanded the money and took it and he even told P.W.1 to come and collect his confession paper which was marked as Ex.P.2 on the following day. Nothing is elicited from P.Ws.1 and 2 to shake their version. In the above circumstances the prosecution plea that the appellant took the bribe money from P.W.1 in the presence of P.W.2 who was sent as accompanying witness also, and that further he has also kept the money in the almyrah from where it was recovered can be accepted as proved beyond doubt. 17. It is now proposed to consider the other plea of the appellant which is that as per the entries in Ex.P.19 station diary of Marripalem RPF post for the date 07.01.2003 he was not in the said outpost at all from 10.40 a.m. to about 06.40 p.m. on that day and therefore P.W.1’s version that he demanded the bribe on that day in the outpost cannot be believed. This Ex.P.19 is stated to be in the nature of a general diary maintained in any police station and it contains daily entries about the movement of the police officials of the said outpost from 01.01.2003 to 08.01.2003. The entries for 07.01.2003 in it no doubt show that the appellant was not in the said outpost from 10.40 a.m. to about 06.40 p.m. P.W.11 who is the investigating officer admitted the above entries and he further admitted that he did not examine the significance of the said entries. If the said entries are to be believed as true the above plea of the appellant has to be accepted as probable. The question is whether Ex.P.19 entries can be accepted as true in the circumstances of this case. 18. The learned counsel for the appellant placed strong reliance upon Ex.P.19 contending that it would be relevant under Section 35 of the Indian Evidence Act, 1872 and it cannot be ignored. Section 35 of the Evidence Act reads as follows. “Relevancy of entry in public record or an electronic record made in performance of duty:-- An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.” It is true that Ex.P.19 being a diary or a register or a book admittedly maintained by public servants i.e. the police officials of Marripalem RPF post in this case in discharge of their duties can be treated as an official book or register falling within the scope of Section 35 of the Evidence Act. As the said diary entries afford evidence about the presence or absence of the appellant in the said outpost in between 10.40 a.m. and 06.40 p.m. on 07.01.2003 they would be relevant to the fact in issue which is whether or not appellant demanded bribe on that day during the above period of time. The question however is whether the said entries can be treated as conclusive proof of what they show or can be treated as sufficient to ignore the other oral evidence which may show that the said entries cannot be relied upon. If the said entries are believed to be reflecting the correct position the defence of the appellant has to be accepted. The question is whether they can be so accepted if there is other evidence which may show that they cannot be relied upon. 19. On the above question it may be noted that Section 35 of the Evidence Act, to repeat, says that the entries in a public book or register are only relevant if they afford evidence of a relevant fact or a fact in issue but the Section does not say that it can be treated as conclusive proof. It may also be noted that Section 35 of the Evidence Act does not even say that a rebutable presumption can also be raised in favour of the party relying upon the entries in such a register or book or diary. The learned senior counsel could not show any provision to conclude that such entries must be accepted as conclusive proof of what they show ignoring the oral evidence which may show that the said entries may not reflect the correct position. Hence it is held that Ex.P.19 station diary though relevant under Section 35 of the Evidence Act cannot be accepted as conclusive proof or as gospel truth ignoring the other convincing evidence which may prove a different fact situation than that indicated by the said entries. 20. Now in the present case the evidence of P.W.7 Ch.Venkata Ramana Murthy who was the then Assistant Sub-Inspector of Marripalem RPF post is relevant. His version is that on 07.01.2003 at about 4.30 pm he checked the railway yard which is nearby the said post and returned to the RPF post Marripalem. He then says at that time the appellant was in his chambers in the said post and both P.W.1 and another Ravi who is running another tea stall were in the chambers of the appellant. He then added that on the instructions of the appellant he scribed Ex.P.2 papers on two carbon papers and obtained the signatures. This Ex.P.2 is the statement of Subrahmanyam i.e. P.W.1 which shows that he admitted some offences before the appellant. 21. A perusal of the cross examination of P.W.7 would show that nothing was elicited from him to conclude that the appellant was not in the RPF post in question on the evening i.e. at the time when P.W.1 stated that he was present. This P.W.7 is not a stranger to the police outpost in question, but he was one of the public servants posted in the said outpost at that time and his evidence which is convincing in my opinion even if contrary to Ex.P.19 is entitled to weight. The rest of the evidence of P.W.1 is that he was detained in the cell on that afternoon and on that evening at the time stated by him the appellant was present in the post and he demanded the bribe from him threatening him with cases if the amount was not paid to him and this is already mentioned. There is no reason to reject this evidence of P.W.1 as held by the trial court as it also finds support from the evidence of P.W.7 regarding the presence of appellant in the police outpost at the relevant time. Thus this second defence of the appellant is also rejected. 22. Lastly it was contended that the appellant was a very strict officer and he controlled many violations and P.W.1 and the other gentleman K.Ravi who was another person running a canteen violated several rules and regulations of the railways and he controlled them and therefore they had an interest in implicating the appellant to see that he looses his job. It should be noted that nothing has been elicited from P.W.1 to show that the appellant did not demand and receive the bribe from him. Nothing is also found in the evidence to show that P.W.1 and Ravi had an interest in securing the conviction of the appellant. In such a situation it is very difficult to accept the above third defence of the appellant. 23. In this connection it must be mentioned here that the learned Senior Counsel for the appellant relied upon State of Kerala v. C.P. Rao[1]. The principle laid down in this case is that where the tainted money is recovered in a situation divorced from the case pleaded by the prosecution or is recovered in a situation which probablises the defence of the public servant then the prosecution version becomes unreliable. There is no dispute about this proposition. In the present case the evidence of P.Ws.1, 2 and 9 and the contents of second mediatornama proceedings marked as Ex.P.8 would show that their evidence clearly establishes that the appellant demanded the bribe amount and received it as pleaded by the prosecution. Thus the above decision cannot help the appellant. 24. To sum up as held by the trial court it can be said that the prosecution has established both the charges brought against the appellant beyond all reasonable doubt. Demand for bribe and its acceptance for not booking cases by the accused public servant which he was competent to book for prosecuting P.W.1 for the violations would undoubtedly fall within the scope of both the charges. Accordingly the convictions recorded by the trial court and its judgment are confirmed. Regarding the sentences, the trial court awarded two years substantive sentences of imprisonment for each count. This case is of 2003 and we are now in December 2011. It can be said that the appellant has undergone the agony of criminal trial and this appeal for more than 7 years. In the circumstances, the substantive sentences of imprisonment are modified into one year for each of the two counts and they are ordered to run concurrently. With this modification this appeal is dismissed confirming the rest of the trial court judgment. 25. As the appellant is stated to be on bail he shall surrender before the trial court within 15 days from today to serve out the sentences as modified now failing which the trial court shall take necessary steps to commit the appellant to prison for executing the sentences. ______________________ N. RAVISHANKAR, J 12th December 2011 CVRK [1] (2011) 6 SCC 450