* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Criminal Appeal No.165 of 2005 % 21-02-2011 # Pillalamarri Venugopala Krishna Murthy and another …Appellants Vs. $ State of A.P., rep. by Standing Counsel and Special Public Prosecutor for ACB, Hyd. …Respondent ! Counsel for the Appellants: Sri C.Padmanabha Reddy Counsel for the Respondent: Standing Counsel for ACB < Gist: > Head Note: ? Cases referred: (2006) 12 SCC 277 (2000) 9 SCC 752 2001 Crl. L.J. 175 (2004) SCC 333 2004 Crl. L.J. 620 2004 Crl.L.J 884 (2006) 1 SCC 401 (1976) 3 SCC 46 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.165 of 2005 (Dated : 21-02-2011) Between: Pillamarri Venugopala Krishna Murthy and another …Appellants A n d State rep. by the Standing counsel, and Special Public Prosecutor for ACB …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.165 of 2005 JUDGMENT: This appeal is directed against the judgment dated 7.2.1999 passed in C.C.No.10 of 1996 on the file of Special Judge for ACB Cases, Visakhapatnam, whereby and whereunder, the learned Special Judge found A-1-Pillalamarri Venugopala Krishna Murthy and A-2-Kalivarapu Rama Rao guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short, `the Act’) and convicted them accordingly and sentenced A- 1 to suffer simple imprisonment for one year and fine of Rs.1500/- and in default simple imprisonment for one month for the offence under Section 7 of the Act and simple imprisonment for one year and fine of Rs.1500/- in default simple imprisonment for one month for the offence under Section 13(1)(d) r/w.13(2) of the Act and sentenced A-2 to suffer simple imprisonment for one year and fine of Rs.500/- in default simple imprisonment for one month for the offence under Section 7 of the Act and simple imprisonment for one year and fine of Rs.500/- in default simple imprisonment for one month for the offence under Section 13(1)(d) r/w.13(2) of the Act. Both the substantive sentences were directed to run concurrently. 2. The prosecution case, in brief, is:- LW.6 Uppalapati Durga Prasad, a resident of Vijayawada, is a Contractor and he is a friend of Pw-1-Durga Murali. He became the highest bidder for collection of tax of toll-gate at Madapam of Visakhapatnam-Bhuvaneswar Division for the year 1994-95. The Executive Engineer executed a lease deed in his favour on 26.3.1994. Pw.1 is Power of Attorney holder of Durga Prasad in respect of collection of tax of toll-gate at Madapam. Ex.P-1 is the lease deed dated 26.3.1994, Ex.P-2 is the photostat copy of the power of attorney dated 24.2.1994. After expiry of the lease period, no auction was conducted for the year 1995-96. Therefore, the department asked Uppalapati Durga Prasad to continue collection of tax of toll-gate on payment of 10% excess over the lease amount. Pw-1 as power of attorney holder of the said Durga Prasad paid the lease amounts in advance for the first fifteen days and the next ten days by way of two demand drafts, one for Rs.52,030/-, dated 15.4.1995 and another for Rs.2,08,120/- dated 17.4.1995. Ex.P-3 is a bunch comprising a draft dt.15.4.1995 for Rs.52,030/- and a Photostat copy of demand draft dated 17.4.1995 for Rs.2,08,120/-. In the meanwhile, the department conducted auction on 16.04.1995 for the year 1995-96 and handed over the bridge to the highest bidder on 20.4.1995. In view of the right to collect tax of toll-gate being entrusted to a new lessee, Uppalapati Durga Prasad was to get return of the excess amount of Rs.1,47,400/- paid by him in advance. Pw-1 as General Power of Attorney holder of Lw.6 Uppalapati Durga Prasad approached the department for return of the excess amount. A-1 Pillalamarri Venugopala Krishna Murthy was the Divisional Accounts Officer from 8.8.1991 to 12.06.1995, and A-2 Kalivarapu Rama Rao was Senior Assistant from 1.7.1990 to 9.5.1995 in the office of the Executive Engineer, Roads and Buildings, N.H.Division, Srikakulam District. They asked Pw.1 to get demand draft for Rs.60,702/- to take back D.D for Rs.2,08,120/-. Accordingly, Pw.1 obtained a demand draft for Rs.60,702/- on 21.4.195, which has been exhibited as Ex.P-4. A-1 demanded Rs.1500/- and whereas A-2 demanded Rs.500/- as bribe for return of the D.D. Pw.1 made up his mind not to pay bribe as demanded by A-1 and A-2. He along with his friend Pw.2 Peediraju went to the office of ACB and submitted Ex.P-5 report before the Deputy Superintendent of Police, ACB, Vizianagaram Range, who was camping at Srikakulam on 27.04.1995. Pw.5- K.P.Eswar, Dy. S.P, ACB, received Ex.P-5 report and instructed Pw.1 to come on the next day to R& B Guest House, Srikakulam with the proposed bribe amount. He registered a case in Crime No.5/RC- ACB/VZM/95 against A-1 and A-2 and issued Ex.P-12 F.I.R. (b). On 28.4.195, Pw.1 along with Pw.2 appeared before Pw.5 with the proposed bribe amount of Rs.2,000/- Pw.5 introduced the mediators, namely K.Ravi Kumar (Pw.3) and Hari Babu (Lw.3) and vice versa. Pw.5 handed over copy of F.I.R-Ex.P-7 to both the mediators and asked them to verify the genuineness of the contents therein from Pw.1. The mediators attested Ex.P-7 copy of F.I.R. Pw.5 enquired Pw.1 as to whether he brought the proposed bribe amount. Thereupon, Pw.1 produced the proposed bribe amount of Rs.2000/-. The particulars of the currency notes of the bribe amount came to be verified by the mediators. A pre-trap panchanama came to be drafted by Pw.3, which has been exhibited as Ex.P-8. The significance of the phenolphthalein test was explained to the mediators by Pw.5. PC 1285 Narayana Rao demonstrated the phenolphthalein test. Bribe amount was smeared with phenolphthalein powder. The tainted currency of Rs.1500/- was kept in left side shirt pocket and whereas the tainted currency of Rs.500/- was kept in the right side pocket of PW.1. Pw.5 instructed Pw.1 to proceed to the office of the accused and pay the tainted amount on being demanded by the accused. After payment of the tainted amount, he was asked to give a pre-arranged signal. (c) Pw-1 accompanied by Pw.2 reached the office of the accused. First they met A-2, who was in the ground floor of the office. A-2 asked Pw.1 about the application as well as demand draft for Rs.60,702/- and the bribe amount. Pw.1 showed Ex.P-4 demand draft and Ex.P-6 application. He also informed A2 that he brought the bribe amount. A- 2 took Pw.1 to A-1 and informed A-1 that Pw.1 brought Exs.P-4 and P- 6 along with the bribe amount. A-1 asked Pw.1 to pay bribe amount of Rs.1500/-. Thereupon, Pw-1 paid the tainted amount of Rs.1500/- to A-1, who accepted the same and kept in his shirt pocket. Pw.1 asked A-1 to count the same. A-1 counted the tainted amount and kept the same in his shirt pocket. A-1 directed A-2 to return D.D for Rs.2,08,120/- after obtaining acknowledgment from Pw.1. A-2 demanded bribe amount of Rs.500/- in the presence of A-1. Pw.1 took out the tainted amount of Rs.500/- and paid the same to A-2, who took it with his right hand and kept in his shirt pocket. He issued acknowledgment to A-2 in token of receiving the D.D for Rs.2,08,120/- . PW.2 came out from the office and gave the pre-arranged signal by wiping his face. Within few minutes, Pw.5 accompanied by his staff and mediators rushed into the office and thereupon, Pw.1 showed A-1 and A-2 who accepted the tainted amount. Pw.5 disclosed his identity to the accused and asked them to furnish their identity particulars. A-1 and A-2 disclosed their identity particulars. Pw.5 got prepared Sodium Carbonate solution and asked A-1 to rinse his fingers in the solution and the solution turned into light pink colour. He preserved the solution in M.Os.3 and 4 bottles and sealed them properly. He seized the tainted amount from A-1, got verified the number of currency notes with the number of currency notes mentioned in the pre-trap panchanama and found the same tallied. M.O-7 is the tainted amount seized from the possession of A-1. Thereafter, Pw.5 prepared Sodium Carbonate solution afresh and asked A-2 to rinse his fingers and the test proved to be positive. Thereafter, he seized the tainted amount from his possession and verified the number of currency notes with the number of currency notes mentioned in the pre-trap panchanama and found that they tallied with the numbers mentioned in the pre-trap panchanama. M.Os.5 and 6 are the sodium carbonate solution bottles. M.O-8 is the tainted currency seized from the possession of A- 2. Ex.P-10 is the post-trap panchanama. M.O-9 is the shirt of A-1, M.O- 11 is shirt of A-2, M.O-10 is the resultant solution of inner lines shirt pocket of A-1, M.O-12 is the resultant solution of inner line shirt pocket of A-2 and M.O-13 is cover containing sodium carbonate powder used in the post trap panchanama. 3. After completing investigation, a charge sheet came to be presented before the Special Judge for ACB Cases at Visakhapatnam. The learned Special Judge took the charge sheet on file as C.C.No.10 of 1996 and on appearance of the accused and on furnishing copies of documents to them, the learned Special Judge examined the accused under Section 239 Cr.P.C. They pleaded not guilty and claimed to be tried. The plea of A-1 is that Pw-1 tried to thrust the tainted amount in his shirt pocket and when he resisted it with his both hands, it fell on the table and in the meanwhile ACB officials came and collected the tainted amount from the table and that his fingers did not yield positive to the phenolphthalein test. The plea of A-2 is that in the last week of April, 1995, Pw.1 asked him a hand loan of Rs.500/- for purchase of petrol promising to adjust the same shortly. Thereupon, he gave hand loan of Rs.500/- to Pw.1 in the presence of an Attender and that on the date of the trap, PW.1 thrusted the tainted amount of Rs.500/- in his shirt pocket as repayment of hand loan and that the test conducted to both his hands proved negative. It is also the common defence of the accused that PW.1 bore grudge against them, as they are responsible for collection of stamp duty and penalty by D.I.G. Registration and Stamps on Ex.P1 lease deed. 4. To bring home the guilt of the accused, the prosecution examined five witnesses as Pws.1 to 5 and proved 20 documents as Exs.P-1 to P-20 apart from exhibiting 13 material objects as M.Os.1 to 13. On behalf of the 2nd accused, two witnesses were examined as Dws.1 and 2 and one document was marked as Ex.D-1. 5. The learned Special Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, came to the conclusion that the prosecution is able to bring home the guilt of the accused for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act beyond reasonable doubt and convicted them accordingly and sentenced them as detailed supra, by judgment dated 7.2.2005. Hence, this criminal appeal by the appellants- accused. 6. Heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellants and learned Standing Counsel and Special Public Prosecutor for ACB appearing for the respondent/State. 7. Learned senior counsel appearing for the appellants/accused submits that there is no consistency in the evidence of PW.1 and PW.2 with regard to place of acceptance of bribe and therefore, no reliance can be placed on their testimony with regard to acceptance of the bribe, in which case, the appellants/accused are entitled for acquittal for the offences under Sections 7, 13(1)(d) r/w. Sec.13(2) of the Act. Learned senior counsel took me to the evidence of PW.1 and PW.2 extensively to convince that there is no consistency as to where the bribe amount has been accepted by A2 i.e., either in the room of A1, which is in the first floor or in the room of A2, which is in the ground floor. When once there is no consistency as to where A2 accepted bribe amount from PW.1, the subsequent proceedings conducted by PW.5 falls to the ground. Learned senior counsel would also submit that PW.1 borrowed Rs.500/- from A2 on an earlier occasion to meet the fuel expenses and the said amount came to be returned on the date of the trap, in which case, acceptance of money by A2 cannot be treated as bribe amount. The learned senior counsel refers the evidence of DW.1 and DW.2 in support of his contention. It is also contended by the learned senior counsel that what all stated by A2 to A1 on the date of trap was that he received the amount from PW.1. The receipt of money, according to the learned senior counsel, was towards repayment of the amount, which PW.1 borrowed on earlier occasion. 8. Learned Standing Counsel and Special Public Prosecutor for ACB appearing for the respondent/State submits that the evidence of PW.1 and PW.2 is consistent with regard to the demand of bribe by A1 and A2 and also their acceptance of the tainted amount on the date of trap. He would also submit that the evidence of PW.1 and PW.2 is amply corroborated by the evidence of PW.3, who is the mediator for the post-trap panchanama and pre-trap panchanama, which have been exhibited as Exs.P8 and P.10. The contention of A-2 that the amount received by him on the date of the trap is towards the repayment of the amount, which earlier borrowed by PW.1, does not stand to reason as PW.1 is a Class-I contractor and therefore, question of his borrowing Rs.500/- in the first week of April, 1995 towards the fuel expenses is apparently improbable and unbelievable. DW.1 and DW.2 are no other than the employees in the office of the Executive Engineer, where A1 and A2 worked and therefore, they are interested witnesses and no reliance can be placed on their testimony in the given facts and circumstances of the case. Learned Special Public Prosecutor would also submit that the tainted amounts, which have been exhibited as Exs.MO.7 and MO.8, came to be seized from the possession of A1 and A2 respectively and the test conducted on the both hand fingers of the accused and their shirt pockets proved to be positive and this would suggest of their accepting the money and when once the acceptance is proved, a presumption as provided under Section 20 of the Act is to be drawn and it is then for the accused to rebut the said presumption and as there being no evidence to rebut the said presumption, the conviction and sentence of the appellants/accused for the offences under Sections 7, 13(1)(d) r/w.13(2) of the Act is legal and proper and the same is not liable to be interfered with in this appeal. In support of his submissions, reliance has been placed on the following decisions: 1) B.Noha v. State of Kerala[1] 2) State of A.P. v. K.Gopalakrishna Murthy[2] 3) Madhukar Bhaskarrao Joshi v. State of Maharashtra[3] 4) A.Abdul Kaffar v. State of Kerala[4] 5) State of A.P. v. Vasudeva Rao[5] 6) T.Shankar Prasad v. State of A.P.[6] 9. The point for determination in this appeal is :- Whether the conviction and sentence of the appellants/accused for the offences under Sections 7, 13(1)(d) r/w.Sec.13(2) of the Act is legal and proper? 10. POINT: Under Section 7 of the Act, a public servant taking gratification other than legal remuneration in respect of an official act is punishable with imprisonment which shall not be less than six months, but which may extend to five years and shall also be liable to fine. In order to establish an offence under this Section, it is necessary to prove that the public servant accepted or obtained or agreed to accept or attempted to obtain illegal gratification as a motive or reward for doing or for forbearing to do an official act or for showing any favour or disfavour to any person or for rendering any service or disservice to any person with a public servant, as such. The first question that requires consideration is, with what motive, or as reward for what act, was the sum paid as illegal gratification by the complainant and accepted by the accused. Where the evidence of eye-witnesses was corroborated by the recovery of money from the accused and the phenolphthalein test also was positive and no explanation for recovery of money from his pocket was given by the accused at the time of recovery, the conviction would be proper. Demand by the accused for the bribe is an essential ingredient of the offence. 11. Section 13 deals with criminal misconduct by a public servant. Under sub-section (1)(d) if a public servant by abusing his position, obtains for himself or for any other person any valuable or pecuniary advantage shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 7 years and shall also be liable to fine. The words ‘pecuniary advantage’ includes cases of cash payment. The words ‘abuse of his position’ mean that the officer do not act as a prudent man, discards all normal and statutory rules and is prepared to accommodate third party and obtain a benefit for him. In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to commit the accused when the substantive evidence in the case is not reliable. The Supreme Court in T.Subramanian v. State of Tamil Nadu[7] held that if the accused offers reasonable and probable explanation based on evidence that money was accepted by him other than as illegal gratification, the accused would be entitled to acquittal. 12. It is well settled that in a case where the accused offers an explanation for receipt of the alleged 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 reasonable doubt as the prosecution, but can establish the same by preponderance of probability. 13. In Chaturdas Bhagawandas Patel v. State of Gujarat[8], it was held that the burden which rests on an accused to displace the statutory presumption that is raised under Section 4(1) of the Prevention of Corruption Act, 1947, is not as onerous as that cast on the prosecution to prove its case. But such burden has to be discharged by bringing on record evidence either direct or circumstantial to establish beyond reasonable probability that money was accepted by him other than as a motive or reward as is referred in Section 161 IPC. 14. I may now briefly refer the evidence keeping in view the aforesaid principles:- PW.1 is the complainant, who presented Ex.P5 complaint before PW.5. PW.2 is his friend and he is the accompanying witness. PW.3 is the panch witness for the pre-trap proceeding, which has been exhibited as Ex.P8, and post-trap proceeding, which has been exhibited as Ex.P.10. PW.4 was the Executive Engineer, R. & B., Visakhapatnam from June, 1993 to May, 1998. He was in full additional charge of R. & B., Srikakulam at the relevant point of time. He speaks of excess amount paid by LW.6 Durga Prasad and also of his directing the accused to return the excess amount of Rs.1,47,418/- to LW.6 Durga Prasad as per rules. PW.5 is the trap-laying officer. 15. The facts, which are not in dispute, are:- LW.6 Durga Prasad became the highest bidder for collection of taxes of toll gate at Madapam for 1994-95. He is a resident of Vijayawada. He executed original of Ex.P2 power of attorney in favour of PW.1 to attend the collection of tax of tollgate at Madapam. Ex.P1 is the lease deed, dated 26.03.1994, executed by the Department in favour of LW.6 Durga Prasad. Lease period expired on 31.03.1995. The Department asked LW.6 Durga Prasad to continue collection of tollgate tax on payment of 10% excess amount over the lease amount. PW.1 as power of attorney holder of LW.6 Durga Prasad paid lease amount for the first 15 days by way of demand draft for Rs.52,030/- and for the next 10 days by way of demand draft for Rs.2,08,120/-. In the meanwhile, the Department conducted the auction and entrusted the work to the new contractor viz., A.Bhavanarayana on 20.04.1995. Therefore, PW.1 was to get return of excess amount of Rs.1,47,418/-. PW.4 has specifically stated in the chief-examination that he directed the accused to return the excess amount of Rs.1,47,418/-. Nothing is suggested to PW.4 in the cross-examination disputing the payment of excess amount by LW.6 Durga Prasad. 16. PW.1 testifies that he approached A1 and A2 for return of the excess amount paid by him and thereupon, A1 and A2 demanded Rs.1500/- and Rs.500/- respectively for return of the excess amount. PW.1 made up his mind not to pay the bribe as demanded by the accused and approached PW.5 and presented Ex.P5 complaint. Thereupon, PW.5 registered the case after making preliminary enquiries and directed PW.1 to be present before him on the next day with the proposed bribe amount. Accordingly, PW.1, accompanied by PW.2, appeared before PW.5 on the following day. PW.5 secured PW.3 and another as mediators and prepared a pre-trap proceeding. PW.5 laid the trap successfully and seized the tainted amount from A1 and A2 i.e., MO.7 tainted amount from A1 and MO.8 tainted amount from A2. The evidence of PW.1 and PW.2 is cogent and convincing with regard to the demand as well as the acceptance of the bribe. MO.7 tainted amount came to be recovered from the possession of A1 and MO.8 tainted amount came to be recovered from the possession of A2. Phenolphthalein test conducted on the accused proved to be positive. The prosecution is able to prove the recovery of MO.7 and MO.8 from the possession of A1 and A2 respectively. PW.3 speaks of the tainted amounts and the currency notes mentioned in the post-trap proceeding being tallied together. PW.3 is an independent witness. He has no reason to speak false against the accused. Except suggesting that Ex.P10 was not drafted at the office of the accused and that it was drafted leisurely in the office of the Inspector, ACB, nothing was suggested to him to discard his testimony. 17. The accused took the plea that the spot explanation given by them was not reflected in Ex.P10 post-trap proceeding. But, nothing was suggested either to PW.3 or PW.5 as what was the spot explanation given and what was not reflected in the post-trap proceeding. The learned trial Judge has considered this aspect and refused the plea advanced by the accused, by giving cogent and convincing reasons. For better appreciation, I may refer the relevant portion in the judgment impugned in the appeal, which reads as hereunder: “ DWs.1 and 2 have stated that PW.1 came to their office at 4.30 P.M., and requested A.O.2 to give hand loan of Rs.1000/- and A.O.2 gave the available amount of Rs.500/-. But in their cross- examination, they have admitted that P.W.1 is a A-Class contractor and he was doing works worth more than crores and that the accused officers never gave loans to others. They have also admitted that A.O.2 never gave loans to others, except in the first week of April, 1995. It may be noticed here that at the earliest point of time during Ex.P.10 post trap proceedings, the above plea was not taken by A.O.2. No doubt, it is suggested to P.w.3 that the true version of the accused officers was not mentioned in Ex.P.10. However, the alleged version of the accused officers was not suggested to P.W.3. It is also noticed earlier that PW.3 is an independent and disinterested witness.” 18. The plea advanced by A1 that the money has been thrusted in his pocket appears to be set up at a later stage. It is quite strange to note that A2 also