THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEALNo. 1146 of 2003. JUDGEMENT: This appeal is directed against the Judgement dt. 20.10.2003 in C.C.No. 45 of 2000 passed by the Special Judge for A.C.B. Cases, Visakhapatnam whereby the appellant/accused was convicted for the offences under Sections 7 and 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for one month for the offence under Section 7 of the Act and also sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for one month for the offence under Section 13(2) r/w 13 (1) (d) of the Act. Assailing the said order of conviction and sentence, the accused preferred the present appeal. The brief facts which are necessary for consideration in this appeal may be stated as under: Dw.1 (D.Venkateshwarlu @ Venkanna) lodged a report in Timmapur police Station alleging that Pw.2 (Surat Pallayya) had cut away a Babul tree situated in his land and basing on the complaint, the appellant who was the SI of police, Timmapur Police Station called Pws 1,2 and Dw.1 on 19.10.1992 to the police station and enquired into the allegations. It is alleged that the appellant demanded an amount of Rs. 1,000/- from Pw.1 for showing official favour and that when Pw.1 expressed his inability, the appellant detained Pw.2 (Surat Pallayya) who is the farm servant of Pw.1 during the night of 19.10.1992 and that on the next day morning, Pw.1 again approached the appellant and the appellant reiterated his demand, then Pw.1 paid a sum of Rs. 500/- to the appellant stating that he had that much amount only and then the appellant released Pw.2 by directing Pw.1 to pay the remaining amount within four days. Subsequently, the appellant summoned Pws 1 and 2 to be present before him on 24.10.1992 and again demanded Pw.1 to pay the balance amount of Rs. 500/- by threatening Pw.1 that he would detain Pw.2 in jail. On 26.10.1992 at about 5 p.m. Pw.1 gave a statement to Pw.5 who was the DSP of ACB and pursuant to his statement a trap was laid on 28.10.1992 at about 6 p.m. and during the course of which, the appellant received an amount of Rs. 500/- from Pw.1 and kept the amount in his pant pocket and after the trap phenolphthalein test was conducted. During the course of trial before the learned Special Judge for ACB cases, Visakhapatnam, the prosecution in order to establish the guilt of the accused has examined Pws 1 to 5, marked Exs: P.1 to P.11 and M.Os. 1 to 9. The appellant examined Lw.3 as Dw.1 on his behalf. On consideration of the entire evidence on record, the learned Special Judge convicted and sentenced the appellant, as stated above. I have heard the learned Senior Counsel SriC.Padmanabha Reddy for the appellant and Sri. Ravi Kiran Reddy, Special Public Prosecutor for ACB. Now the point that arises for consideration is whether the order of conviction and sentence passed by the learned Special Judge for ACB Cases, Visakhapatnam can be sustained. Pws 1 and 2 of course have deposed before the trial court that Pw.2 was detained by the appellant on account of failure of Pw.1 to fulfil his demand i.e. to pay bribe of Rs. 1000/-. The evidence of Pw.1 discloses that on 19.10.1992 when he went to the police Station along with Pw.2, Dw.1 was present in the police station and the appellant who was the SI of police enquired into the allegations mentioned in the complaint lodged by DW.1 and after some time, the appellant asked Dw.1 to leave the police station and accordingly he left the police station and thereafter the appellant called him and Pw.2 inside the police station and asked him to pay Rs. 1,000/- so that there would not be any case against Pw.2 and that when he expressed his inability to pay the amount, the appellant detained Pw.2 in Timmapur Police station during that night. He also spoke about the fact of going to the police station on the next day morning i.e. on 20.10.1992, paying an amount of Rs. 500/- to the appellant and the appellant releasing Pw.2 and also demanding him to pay the remaining amount of Rs. 500/- within four days. Pw.2 apart from testifying the facts spoken to by Pw.1, deposed that on 20.10.1992 Pw.1 paid an amount of Rs. 500/- to the appellant and the appellant received the said amount and after receiving the said amount of Rs. 500/-, the appellant released him while directing Pw.1 to pay the remaining amount within four days. Pw.3 (V.Sunder Krishna), a Senior Assistant in Commercial Tax Department who acted as a mediator, spoke about the trap laid by theACB. Pw.5 (D.V.Saibaba) who was the DSP at the relevant point of time deposed about Pw.1 approaching him and making a statement alleging that the appellant demanded bribe of Rs. 1000/- from him and reducing his statement into writing. He also spoke as to the manner in which he laid the trap. There is no dispute with regard to conducting of Phenolphthalein test after the trap. Pw.1 stated in his evidence that on the date when the trap was laid, the appellant received an amount of Rs. 500/- from him and kept the said amount in his pant pocket. As to this, the defence version of the appellant, as could be seen from the tenor of cross-examination of the witnesses and also from the written statement filed by the appellant during the course of trial, is that he did not demand any amount either on 19.10.1992 or on 20.10.992 and he released Pw.2 on 19.10.1992 itself after making an enquiry and that he only instructed Pw.1 to produce the documents relating to the disputed land and due to which Pw.1 bore grudge against him and using the officials of ACB, a false trap was laid against him on 28.10.1992. Further, it was his version that on 28.10.1992 Pw.1 came to the police station and offered a sum of Rs. 500/- with his right hand and he refused the amount and asked Pw.1 about the documents and also questioned him as to why he threatened Dw.1 with dire consequences and that thereafter he rose from the chair and while he was coming out of his room, Pw.1 forcibly kept the amount in his pant pocket on left side and when he resisted the same with his left hand, Pw.2 started running away and when he followed him shouting, ACB officials came in the meanwhile. The learned Public Prosecutor for ACB would contend that since laying of trap is successfully proved by the evidence of Pws 1, 2, 3 and 5, a presumption can be drawn against the appellant under Section 20 of Act to the effect that he received bribe from Pw.1. On the other hand, the learned Senior Counsel appearing for the appellant would submit that as per the evidence of Pw.3 who was the Station Writer, Pw.2 was released by the appellant on 19.10.1992 itself. If that is so, the question of appellant demanding any bribe from Pw.1 for showing official favour does not arise. The learned Senior Counsel would further submit that if the evidence is considered as a whole, the explanation offered by the appellant is reasonable and plausible and that the trial court ought to have accepted the explanation and acquitted the appellant. In support of his contention, the learned Senior Counsel for the appellant relied on a decision in Punjabrao vs. State of Maharashtra[1] wherein the Supreme Court held as under: “We have examined the judgement of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the aged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond all reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is undisputed that from 24th to 26th the Patwari was collecting loans in a collection campaign. It is, of course, true as observed by the High Court that when the Investigating Officer seized the amount from the Patwari accused, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 Cr.P.C. when such explanation could be held to be reasonable under the facts and circumstances of the case, as indicated by the learned Special Judge while acquitting the accused. It also transpires that the High Court, while setting aside an order of acquittal recorded by the Special Judge, has not focussed its attention to the reasoning advanced by the Special Judge and by mere re-appreciation has come to the conclusion, and in our view the conclusion is based upon a misreading of the relevant evidence including the evidence of Pw.2. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court erred in interfering with the well reasoned judgement of the Special Judge in an order of acquittal.” The learned Senior Counsel for the appellant also relied on another decision in Salimkhan Sardarkhan vs State of Gujarat[2] wherein the Supreme Court held as under: “This judgement of acquittal was assailed by the State in appeal before the High Court. Dealing with the question as to whether the currency notes could have been inserted into the appellant’s pocket, the High Court observed: “On our part we find it extremely difficult to accept this version. The respondent was a policeman who was about to retire in a short time. He had been in service for more than 30 years. Even if one is extremely credulous, it is not possible to believe that a policeman would not come to know if someone sitting at a distance of 6” inserts currency notes in his left hand side pocket. To us it appears that such a feat cannot be achieved. Even if it was attempted, the respondent would have come to know about it.” The High Court reversed the trial court in this regard by merely drawing a presumption on the basis of the appellant having been a policeman. The appellant was already nearing the age of superannuation as found by the High Court and had been more than 30 years in service. The High Court obviously lost sight of the fact that the appellant may have lost his ability and in the peculiar circumstances indicated above the notes could have been inserted without the appellant knowing it. Very clever people who are young and agile are often victimised by pickpockets and only when their valuables have been lost the fact is noticed by them. The process here is the reverse one. Instead of the pocket being picked, currency notes have been inserted into it. The view of the trial court should not have been discarded merely on the basis of what has been extracted by us above from the judgement of the High Court. The learned Senior Counsel for the appellant also relied on another decision reported in C.M.Girish Babu vs. CBI, Cochin[3] wherein the Supreme Court held as under: “It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross- examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.” If we examine the facts of the present case in the light of the above decisions, it would appear that the evidence of Pws 1 and 2 in the matter of demanding bribe for showing official favour by the appellant does not inspire confidence. The evidence of Pw.4, the Station Writer and Dw.1 who lodged the report against Pw.2 in Timmapur Police Station clearly indicates that on 19.10.1992 Pw.2 was not detained by the appellant. According to both the witnesses, after making an enquiry Pw.2 was let out. If that is so, it is highly difficult to accept the version of prosecution that the appellant despite releasing Pw.2 without receiving any amount from Pw.1 further demanded bribe to do official favour. The version of the appellant is that he only asked Pw.1 to produce the documents relating to the disputed land but he never demanded any amount. Merely because Pws 1 and 2 have no prior enmity with the appellant, it cannot be said that their version has to be considered as truthful. The possibility of both the witnesses being used as instruments in the hands of ACB party cannot be ruled out. Dw.1 who gave the complaint against Pw.1 was in fact figured as a prosecution witness (Lw.3) but the prosecution for the reasons best known to it did not examine him and the appellant examined him as DW.1. His evidence only indicates that the appellant called him and Pws 1 and 2 to the police station and chastised them and thereafter Pw.1 left the police station stating that he would bring title deeds and that he also left the police station to bring title deeds from his Advocate and that Pw.2 also left the police station on the same day and that four days thereafter when Pws 1 and 2 tried to beat him, he gave report Ex:P.11. Though this witness is cross-examined by the prosecution, the basic fact that Pw.2 was let off on 19.10.1992 itself was not shaken. Similarly, Pw.3 who was the Station Writer deposed that to his knowledge no G.D. entry was made in respect of the report lodged by DW.1 on 19.10.1992 and that Pws 1 and 2 came to the police station in the morning hours when the appellant was present in the police station. He further deposed that the appellant made an enquiry and Pw.2 was released by the appellant on the same day itself. The evidence of these witnesses goes contra to the version of prosecution that on 19.10.1992, Pw.2 was detained illegally by the appellant in anticipation of bribe. If we examine the totality of circumstances, the evidence of Pws 1 and 2 does not inspire any confidence and more over the explanation offered by the appellant is reasonable and probable. Therefore, in my considered view the conviction and sentence passed against the appellant by the learned Special Judge cannot be sustained and they are liable to be set aside. In the result, the appeal is allowed. The conviction and sentence passed by the learned Special Judge for ACB cases, Visakhapatnam against the appellant is set aside and the appellant is acquitted of the offences under Sections 7 and 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988. The fine amount paid by the appellant shall be refunded. ________________________ R.KANTHA RAO,J 23.07.2010. KRB. THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEALNo. 1146 of 2003. JUDGEMENT: Dt. 23.07.2010 [1] 2001 (3) Crimes 309 (SC). [2] (1985)4 Supreme Court Cases 234. [3] (2009) 2 Supreme Court Cases (Cri) 1.