8THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.54 of 2005 (Dated :21-03-2011) Between: P.Sarangapani S/o Laxmaiah Coop Sub – Registrar, Divisional Coop Office Khammam ….Appellant A n d State of A.P rep. by its Special Public Prosecutor, for ACB Cases, High Court of AP, Hyd. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.54 of 2005 JUDGMENT: This Criminal appeal is directed against the judgment dated 06.1.2005 passed in C.C.No.8 of 1994 on the file of the Principal Special Judge for SPE and ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, whereby and whreunder, the learned Special Judge found A-1-P.Saranga Pani guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act ( for brevity, “the Act”) and convicted him accordingly and sentenced him to suffer R.I for one year and pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months for the offence under Section 7 of the Act and to suffer R.I for two years and fine of Rs.2,000/- in default, simple imprisonment for six months for the offence under Section 13(1)(d) read with Sec.13(2) of the Act. 2. The prosecution case, in brief, is:- A-1-P.Sarangapani was Cooperative Sub Registrar and A-2- P.Vasudev was Deputy Registrar in the office of the Sub Divisional Cooperative Office, Khammam. Pw.4-B.Pulla Reddy was the President of Primary Agricultural Cooperative Society, Lachannagudem village (hereinafter referred to as `the society). Pw.4 came to be disqualified for holding the post of the President of the society. Lw.1-Immadi Laxmaiah took charge as the President of the society as per the byelaws of the society. A-2 directed A-1 to conduct a meeting of the members of the society to elect a new President in place of B.Pulla Reddy (Pw.4). A-1- P.Sarangapani went to the society on 17.3.1993 and verified the minutes of the society and came to know that Lw.1-Immadi Laxmaiah assumed charge as President of the society. Therefore, A-1 did not conduct the meeting and informed the fact of Lw.1-Immadi Laxmaiah assuming charge as President of the society to A-2 under Ex.P.2-letter dated 18.3.1993. Thereupon, A-2 issued proceedings cancelling the meeting proposed to be held on 19.3.1993. Ex.P-3 is the copy of the proceeding dated 18.3.1993. Lw.- 1-Laxmaiah presented Ex.P-1 letter dated 16.3.193 to the Divisional Cooperative Officer, Khammam informing of his assuming charge as President of the society on 10.3.1993. 3. A-1 and A-2 assured Immadi Laxmaiah (Lw.1) that he would be allowed to continue as incharge President of the society and in turn, they demanded him to pay Rs.1500/- as bribe. A-1 and A-2 informed him to come with the bribe amount on 27.3.1993 to receive the proceedings in writing for his continuation as incharge President of the society. Immadi Laxmaiah (Lw.1) made up his mind not to pay the bribe to the accused. Therefore, he presented Ex.P-11 complaint before Pw.6-P.L.Raju, DSP, ACB, Warangal on 26.3.1993. Pw.6 received Ex.P-11 complaint and after making verification of the facts stated in the complaint and after enquiry about the accused officers, registered a case in Crime No. 2/ACB-WKH/1993 for the offences under Sections 7, 11 and 13(2) of the Act read with Section 34 of IPC and issued Ex.P-10 F.I.R. He instructed Immadi Laxmaiah (Lw.1) to come with the proposed bribe amount on the following day to Police Club, Khammam. 4. On 27.3.1993, at about 2.15 PM, Lw-1-Immadi Laxmaiah appeared before Pw.6 at Police Club, Khammam with the proposed bribe amount. He introduced the mediators to Lw-1-Immadi Laxmaiah. Thereupon, the mediators got the facts of the complaint verified from Lw-1-Immadi Laxmaiah. Pw.6 got treated the proposed bribe amount produced by Lw-1-Immadi Laxmaiah with phenolphthalein powder and he explained the significance of sodium carbonate solution test. He demonstrated the significance of the sodium carbonate solution test. He handed over the phenolphthalein treated currency notes to Lw-1- Immadi Laxmaiah with specific instructions to give the same to the accused on demand. A pre-trap panchanama came to be prepared, which has been exhibited as Ex.P-4. Pw.6 along with Lw-1-Immadi Laxmaiah went to Divisional Cooperative Office, Khammam and took their vantage positions. 5. Lw-1-Immadi Laxmaiah entered into the Divisional Cooperative Office, Khammam and met A-1-Sarangapani. Both Lw-1-Immadi Laxmaiah and A-1-Sarangapani got down from the first floor of the building and had discussion about ten minutes outside the office and thereafter, Lw-1-Immadi Laxmaiah handed over the tainted currency notes to A-1-Sarangapani. Lw-1-Immadi Laxmaiah and A-1- Sarangapani again went into the office and thereafter, Lw-1-Immadi Laxmaiah came out from the office and gave pre-arranged signal. Pw.6 and mediators received the signal and entered into the office and disclosed his identity and introduced the mediators to A-1- Sarangapani. Thereafter, A-1-Sarangapani became panic and tried to rub his hand fingers to the table. Pw.6 prevented him from doing so. He got the sodium carbonate solution prepared in separate glass tumblers and asked A-1 to rinse his right hand fingers in one of the glass tumblers and thereupon, the solution turned into pink colour. The test conducted on left hand fingers of the A-1-Sarangapani proved to be negative. Pw-6 asked A-1-Sarangapani regarding the bribe amount. Initially, A-1 denied of receiving the bribe amount and subsequently, handed over the bribe amount by taking out from his right back pant pocket and produced the same before the mediators. The mediators verified the number of currency notes with the number of currency notes mentioned in the pre-trap panchanama and found that the number of currency notes seized from the possession of A-1- Sarangapani tallied with the number of currency notes mentioned in the pre-trap panchanama. The sodium carbonate solution test was also conducted on the right back pant pocket of A-1-Sarangapani and the test proved to be positive. Pw.6 enquired A-2-P.Vasudev and what all stated by him is incorporated in the post-trap proceedings. Ex.P-5 is the post-trap proceedings and Ex.P-6 is the rough sketch of the scene. Pw-6 examined Lw-1-Immadi Laxmaiah, Lw-2-Mohd. John Khan, Pw.1-M.Dhna Pullaiah, Lw.4-P.Madhusudhan Rao, Lw.5-Usha Kumari,Lw.6-N.Satyanarayana Reddy and Lw.7-D.Srinivas Murthy and Pw.4-B.Pulla Reddy and recorded their statements. He forwarded the final report to DG, ACB for securing prosecution of the accused officers. He received Exs.P-7 and P-8 Sanction orders from the Government of Andhra Pradesh. Thereafter, he laid charge sheet against A-1 and A-2 in the Court of Principal Special Judge for SPE and ACB Cases, Hyderabad. 6. The learned Principal Special Judge for SPE & ACB Cases, Hyderabad, took the charge sheet on file as C.C.No.8 of 1994. On appearance of the accused and on furnishing copies of the documents to them, the learned Special Judge examined the accused under Section 239 Cr.P.C. The accused denied of the accusations and pleaded not guilty. 7. Pending trial, A-2-P.Vasudev died on 24.11.2000 and case against him stood as abated. 8. To bring home the guilt of the accused, prosecution examined six witnesses and proved 14 documents and exhibited 8 material objects. T h e de facto complainant- Lw-1-Immadi Laxmaiah died before the case came up for trial. The complaint presented by him came to be exhibited as Ex.P-11 through Pw.6. 9. The plea of A-1-Sarangapani is that Pw.4-B.Pulla Reddy is instrumental in foisting a case against him and that Lw-1-Immadi Laxmaiah having repented in presenting a complaint against him addressed Exs.D-1 and D-2 letters to him apart from giving statement before the Magistrate under Section 164 Cr.P.C. It is also the plea of A- 1-Sarangapani that on the date of trap, he received the tainted currency notes from Lw-1-Immadi Laxmaiah towards part payment of audit fee in respect of the society for which Lw-1-Immadi Laxmaiah was acting as Incharge President. To probabilise his defence, A-1- Sarangapani examined K.Venkateswarlu as Dw.1 and marked two letters dated 29.3.1993 and 2.6.1995 as Exs.D-1 and D-2 respectively and explanation submitted by him to the notice issued by DSP, ACB, Warangal calling upon his appearance before him on 24.6.1993 at 11 am as Ex.D-3. 10. The learned Special Judge, on considering the evidence brought on record and on hearing the prosecution and A-1-Sarangapani, found A-1-Sarangapani guilty for the offences under Sections 7 and 13(1)(d) read with Sec. 13(2) of the Act and convicted him accordingly and sentenced him as stated supra, by judgment dated 06.01.2005. Hence this criminal appeal by A-1-Sarangapani. 11. Heard Shri T.Bal Reddy, learned senior counsel appearing for the appellant/A-1 and Sri R.Ramchandra Reddy, learned Special Public Prosecutor for ACB Cases, appearing for the respondent-State. 12. Learned senior counsel submits that the appellant/A-1 accepted the money on the date of trap on the premise that the same has been paid by Lw-1-Immadi Laxmaiah towards audit fee and not as an illegal gratification. He would further submit that the appellant/A-1 is able to probabilize his defence through Exs.D-1 , D-2 and D-3 and also certain admissions made by Pw.4 in his evidence and in which case, the conviction of the appellant/A-1 for the offences under Sections 7 and 13(1)(d) read with Sec.13(2) of the Act is not legal and proper and therefore, the same is liable to be set aside. Learned senior counsel would contend that in a case of charge under Section 13(1)(d) of the Act, presumption as provided under Section 20 of the Act cannot be pressed into service. The trial Court committed serous error in treating the recitals mentioned in post-trap panchanama, which has been exhibited as Ex.P-5 as substantive evidence. The spot explanation given by the appellant/A-1 has not been correctly stated in Ex.P-5-post trap panchanama. According to learned senior counsel, there is no rule whereby, a person accused of the offence punishable under Sections 7 and 13(1)(d) read with Sec. 13(2) of the Act is prevented from coming out with an explanation subsequently for the receipt of the amount on the date of trap and that if the said explanation is found to be plausible, the Court can look into it and give it evidentiary value. In support of his submission, reliance has been placed on the decisions of the Supreme Court in Union of India v. Purnandu Biswas[1] and Suraj Mal v.State of Delhi[2] 13. Learned Special Public Prosecutor submits that the evidence of Pws.2, 5 and 6 is cogent and consistent to the fact that the appellant/A-1 accepted the tainted money-MO-1 on the date of the trap and the acceptance itself is sufficient to presume that he received the same as illegal gratification. He would also submit that non- examination of Lw-1-Immadi Laxmaiah is not a ground to reject the testimony of other witnesses as the non-examination of Lw-1-Immadi Laxmaiah is on account of his death. A further submission has been made that the evidence of Pws.2 and 6 clearly established that the appellant/A-1 accepted MO-1 tainted currency on the date of the trap from Lw-1-Immadi Laxmaiah and the conduct of the appellant/A-1 on the date of trap by way of rubbing his hands to the table, so as to screen the evidence of the offence, is a circumstance to speak of his accepting illegal gratification from Lw-1-Immadi Laxmaiah. He would also contend that the appellant/A-1 introduced Exs.D-1, D-2, and D-3 letters allegedly written by Lw-1-Immadi Laxmaiah as an afterthought to wriggle out of the situation. If it was the case of the appellant/A-1 of his accepting tainted currency-MO-1 towards audit fee, nothing prevented him to state the same in spot explanation. The very fact that the post-trap panchanama does not contain such an explanation indicates that the explanation offered by the appellant/A-1 is an after-thought. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in Tarsem Lal v. State of Haryana[3] and B.Noha v. State of Kerala[4] 14. The point for determination in this appeal is: Whether the conviction and sentence of the appellant/A- 1 for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Act is legal and proper? 15. POINT: Under Section 7 of the P.C.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 (1) the accused at the time of the offence was, or expected to be, a public servant ; (2) that he accepted, or obtained, or agreed to accept or attempted to obtain from some person a gratification; (3) that such gratification was not a legal remuneration due to him, and; (4) that he accepted the gratification in question as a motive or reward, for (a) doing or forbearing to do an official act; or (b) showing or forbearing to show favour or disfavour to some one in the exercise of his official functions; or (c) rendering, or attempting to render, any service or dis-service to some one, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant, vide the decision of the Supreme Court in Dalpat Singh v. State of Rajasthan[5]. 16. 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. 17. Section 13 deals with criminal misconduct by a public servant. Under Sub-section (1)(d)(ii) 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 T.N[6] 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. 18. 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. 19. In Chaturdas Bhagawandas Patel v. State of Gujarat[7], it was held that the burden which rests on an accused to displace the statutory presumption that is raised under Section 4(1) of 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. 20. I may now briefly refer the evidence keeping in view the aforesaid principles:- 21. The appellant/A-1 did not dispute of the trap party recovering tainted currency from his possession. For better appreciation of the evidence brought on record, I deem it appropriate to refer Question No.18 put to the appellant/A-1 in his 313 Cr.P.C examination and the answer given by him to the said question, which reads thus:- “Q)He further stated that himself, mediators and others rushed into your office and they found yourself and Vasudev Rao who were sitting in your respective seats, that he disclosed his identity and introduced the mediators to you and you became panic and tried to rub your hands to the table, but you were prevented from doing so, and even immediately sodium carbonate solution was prepared in separate glass tumblers and when you were asked to rinse your right hand fingers in one of the glass tumblers, it turned pink and when the same was repeated to your left hand fingers, it remained colourless, and the resultant solutions were seized, sealed, labelled and attested by the mediators, which are M.Os 5 and 6. What do you say? Ans: It is false. I represented to the DSP ACB that I did not demand any bribe nor accepted of the same from complainant. He gave the amount towards part payment of the dues of the society. They did not conduct any test. They have made a show to that effect. “ 22. Pw-2 is an independent witness for pre-trap and post-trap panchanamas. Pw.5 is the Inspector of Police, ACB, Khammam and he accompanied Pw.6 who led the trap party. Pws.2, 4 and 5 took vantage positions after reaching the Divisional Cooperative office, Khammam before Lw.1-Immadi Laxmaiah entering the office of Divisional Cooperative office with the tainted currency notes to offer the same to the accused on demand. Pw.2 categorically stated that he witnessed Lw.1-Immadi Laxmaiah giving the tainted amount to the appellant/A-1 and the appellant/A-1 receiving the same and keeping in his right back pant pocket. There is no reason for this witness to speak false against the appellant/A-1. The prosecution is able to prove beyond reasonable doubt that the appellant/A-1 accepted the tainted currency notes and kept the sae in his right backside pant pocket. The sodium carbonate solution test conducted on the right hand fingers and right back pant pocket of the appellant/A-1 proved to be positive. 23. Learned Senior Counsel argued that the presumption under Section 20 of the Act could not be drawn as the charge in this case was under Section 13(2) read with 13(1) of the Act. Learned senior counsel placed reliance on the judgment of the Supreme Court in Union of India v. Purnandu Biswas (1 supra). 24. In the cited case, the accused was charged for the offence under Section 13(1)(d) read with Sec. 13(2) of the Act. Coming to the facts of the case on hand, the appllant/A-1 was charged not only for the offences under Sections 13(1)(d) but also for the offence under Section 7 of the Act. This issue is squarely covered by the judgment of the Supreme Court in State rep. by CBI, Hyderabad v. G.Premraj[8], wherein it has been held that when the accused was charged not only for the offence under Section 13(1)(d) but also under Section 7 of the Act, presumption as provided under Section 20 of the Act can be pressed into service. 25. When the prosecution proved conscious acceptance of the tainted currency and also recovery of tainted currency from the appellant/A-1, the burden shifts on the appellant/A-1 to dispel the statutory presumption, which is in favour of the prosecution as provided under Section 20 of the Act. The plea of the appellant/A-1 is that he accepted the money towards part-payment of the dues of the society. The appellant/A-1 heavily relied on certain letters allegedly addressed by Lw.1-Immadi Laxmaiah wherein, he repented for implicating the appellant/A-1 in the case. The prosecution could not examine Lw.1-Immadi Laxmaiah 2 as he was no more by the date the case came up for trial. Exs.D-1 and D-2, which are said to be emanated from Lw.1-Immadi Laxmaiah are marked through Dw.1- K.Venkateshwarlu. The text of the letter reads that Lw.1-Immadi Laxmaiah has been made to pay the amount to the appellant/A-1 by Pulla Reddy (Pw-4) towards audit fee. But, it is quite strange to know that nothing was suggested to Pw.4 that he gave the money to Lw.1- Immadi Laxmaiah for being passed on to the appellant/A-1. Pw.4 challenged the proceedings whereunder, he has been kept under suspension and obtained stay from the concerned Minister. It is to be inferred that by the date of his giving evidence before the Court, he got his position restored as President of the Society. Nothing is suggested to him that the records of the society indicates of Lw.1- Immadi Laxmaiah giving money to the appellant/A-1 towards audit fee as incharge President of the society. Had the amount paid by Lw.1-Immadi Laxmaiah to the appellant/A-1 was towards audit fee, it should have been reflected in the accounts of the society. Nothing is elicited from Pw.4 that the accounts of the society indicate of payment of audit fee to the appellant/A-1. For better appreciation, I may refer the cross-examination of Pw.4 in his own words and it is thus:- “ Ex.P.9 is the suspension order suspending me from the post of President. It is true that it is alleged in Ex.P.9 that I did not follow the bye-laws of the society and that I sold the fertilizers of two lorry loads and that I did not furnish the accounts. I challenged that order in the High Court and also before the Commissioner. The Commissioner dismissed my application on the ground that my petition was pending in the High Court. Subsequently I withdrawn the case from the High Court and obtained stay order from the concerned Minister. ACB officials examined me on 28-6-1993. I do not know as on that date Ummadi Laxmaiah already gave statement before the concerned Magistrate. It is not true to suggest that at the instance of ACB officials, I gave false statement. It is not true to suggest that I am the man behind the complainant and got false trap laid against Accused Nos. 1 and 2. It is not true to suggest that I bore grudge against A1 and A2 and falsely involved them in this case”. 26. A reading of the evidence of Pw.4 indicate that the plea taken by the appellant/A-1 as to payment of the tainted currency by Lw.1- Laxmaiah to him was towards audit fee has no substance. Exs.D-1 and D-2 do not carry any weight since the appellant/A-1 failed to place any material on record to show that the amount paid by Lw.1-Immadi Laxmaiah to the appellant/A-1 was out of the funds of the society. The appellant/A-1 failed to discharge the statutory presumption of his accepting the tainted currency as illegal gratification. The trial Court has considered the evidence brought on record in right perspective and found the appellant/A-1 guilty for the offences under Sections 7 and 13(1)(d) read with Sec. 13(2) of the Act. I do not see any valid grounds to interfere with the findings of the trial Court. 27. In the result, the Criminal Appeal is dismissed. The bail bonds of the appellant/A-1 shall stand cancelled. The appellant/A-1 is directed to surrender himself before the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad to serve out remaining part of the sentence. _____________________ B.SESHASAYANA REDDY, J Dt. 21-03-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.54 of 2005 (Dated :21-03-2011) [1] 2005(12) SCC 576 [2] AIR 1979 SC 1408 [3] AIR 1987 SUPREME COURT 806 [4] (2006) 12 Supreme Court Cases 277 [5] AIR 1969 SC 17 [6] (2006) 1 Supreme Court Cases 401 [7] 1976(3) Supreme Court Cases 46 [8] AIR 2010 SC 793