THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal Nos.50 & 1423 of 2005 (Dated : 03-03-2011) Between: C.R.Rajendran, 104, G.Railway Colony, Tirupati (Appellant in Criminal Appeal No.50 of 2005) …Appellant A n d State rep. by the Inspector of Police, ACB, Tirupati Range, Tirupati (Appellant in Criminal Appeal No.1423 of 2005) ….Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal Nos.50 & 1423 of 2005 COMMON JUDGMENT: These two criminal appeals are directed against the judgment dated 12.01.2005 passed in C.C.No.12 of 1995 on the file of the Special Judge for SPE & ACB Cases, Nellore, whereby and whereunder, the learned Special Judge found A-1-C.R.Rajendran guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988( for brevity, `the P.C.Act’) and convicted him accordingly and sentenced him to suffer R.I for six months and fine of Rs.1,000/- in default simple imprisonment for one month for the offence under Section 7 of the P.C.Act and R.I for one year and fine of Rs.2,000/- for the offence under Section 13(1)(d) read with 13(2) of the P.C.Act. Both the substantive sentences were directed to run concurrently. The learned Special Judge found A-2- K.Giddaiah as not guilty for the offence under Section 12 of the P.C. Act and acquitted him accordingly. 2. More precisely, Criminal Appeal No.50 of 2005 is filed by A-1 aggrieved by his conviction and sentence and whereas Criminal Appeal No.1423 of 2005 is filed by the State assailing the acquittal of A-2-K.Giddaiah. 3. The prosecution case, in brief, is:- (a) Pw-4-P.Audemma is the Proprietor of Audisree Enterprises. She deals in printing wedding cards and stationery items. The Head office of her business is situated in Door No.10/401, Doddapuram Street, Tirupati whereas the Branch Office is situated in D.No.10/432-A of Baroda Street, Tirupati. Pw.1- P.Dwarakanath Reddy is her son and he has been attending to the business. The business of Pw.4 is registered with Sales Tax Department and the tax returns are being filed through the head office. A-1-C.R.Rajendran is the Assistant Commercial Tax Officer; Deputy Commercial Tax office, Tirupati Pw.3- C.Damodaram is Assistant Commercial Tax Officer-1 in the Deputy Commercial Tax office, Tirupati. The branch office of the business of Pw.4 comes within the jurisdiction of A-1 and whereas the main office of her business comes within the jurisdiction of Pw.3. (b) On 12.7.1994, at about 11 am., A-1 along with two or three persons of his office came to the shop of Pw.4 and informed her son- Pw.1 that the shop comes under his jurisdiction and that he is not getting anything from his shop and therefore, asked him to pay a bribe of Rs.2,000/- otherwise he would seal the shop. On 20.7.1994, Pw.1 met A-1 and explained him that there were no defects in the accounts submitted by him relating to Audisree Enterprises and that he could not pay so much amount demanded by him. Thereupon, A-1 asked him to pay at least Rs.1,000/- otherwise he would see the closure of the shop. He asked Pw.1 to pay the bribe amount within 2 or 3 days. Pw.1 made up his mind not to pay the bribe amount. He met Deputy Superintendent of Police, ACB on the next day at 12 noon and presented Ex.P-1 complaint. Pw-6-K.Kumar, Deputy Superintendent of Police, ACB, Tirupathi received Ex.P-1 complaint and instructed Pw.1 to come on the next day with the proposed bribe amount. He made necessary verification and registered a case in Crime No.10/ACB- TPT/1994 under Sections 7, 11, 13(2) read with 13(1)(d) of the P.C.Act against A-1 and A-2 and issued Ex.P-7 F.I.R. After registering the case, he addressed the Executive Engineer, Irrigation Division, Tirupati to send two officers of his office to act as mediators on 22.7.1994. Ex.P-8 is the office copy of the requisition sent by him to the Executive Engineer, Irrigation Division, Tirupati. Pw.2- P.Thangavelu, Superintendent, Office of the Executive Engineer and Lw.4-S.Muniramaiah, draughtman, office of the Executive Engineer appeared before Pw.6 on 22.6.1994. Pw.1 also appeared before Pw.6 with the proposed bribe amount. Pw.6 explained the intricacies of the phenolphthalein test. The proposed bribe amount was smeared with phenolphthalein powder. A pre-trap panchanama came to be drafted. Ex.P-4 is the pre-trap panchanama. Pw-1 was instructed by Pw-6 to handover the tainted money to the accused on demand. (C ) Pw.1 went to the office of the DCTO, Tirupati and met A-1 in his room. On seeing Pw.1, A-1 asked him as to whether he brought the amount of Rs.1,000/-. Pw.1 replied positively and thereupon, A-1 called A-2 to his room and asked Pw.1 to handover the amount to A-2. As instructed by A-1, Pw.1 handed over the tainted amount to A-2 and A-2 counted the tainted amount and put in his shirt pocket. Pw.1 came out from the office and passed on the pre-arranged signal by combing his hair. The trap party led by Pw.6 received the pre-arranged signal and entered the room of A-1. Pw-6 disclosed his identity to A-1 and A- 2. He got the sodium carbonate solution prepared in a glass tumbler and asked A-1 to dip his fingers in the said solution. There was no change in the colour. Thereafter, he got prepared sodium carbonate solution in another glass tumbler and asked A-2 to rinse his hand- fingers. The test conducted on the hand fingers of A-2 proved to be positive. Pw-6 questioned A-1 and A-2 as to where the tainted amount has been kept. A-2 produced the tainted amount of Rs.1,000/- from his left hand inner pocket of the shirt. He got the numbers of tainted currency notes of tainted amount verified with the currency notes numbers mentioned in Ex.P-4-pre-trap panchanama. The mediators found that the currency notes of the tainted amount tallied with the number of currency notes mentioned in Ex.P-4 pre-trap panchanama. A post-trap panchanama came to be prepared, which has been exhibited as Ex.P-6. Pw-6 arrested A-1 and A-2 and released them on bail, on furnishing self-bonds. After completion of investigation, a charge sheet came to be submitted by Pw.8 Raghu Dalavai before the Special Judge for SPE & ACB Cases, Nellore. The learned Special Judge took the charge sheet on file as C.C.No.12 of 1995. 3. After furnishing copies of the documents to the accused persons, charges were framed, for which the accused pleaded innocence and claimed to be tried. To bring home the guilty of the accused for the offences with which they stood charged, prosecution examined eight witnesses as Pws.1 to 8 and proved 10 documents as Exs.P-1 to P-10 and exhibited eight material objects as M.Os.1 to 8. The accused persons were examined under Section 313 of the code of Criminal Procedure putting the substance of incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They denied of the demand and the acceptance of the bribe and took the stand that a false case had been foisted against them. A-2 got himself examined as Dw.4 on his behalf. Whereas A-1 examined three witnesses as Dws.1 to 3 on his behalf to probabilise his defence that he attended the office on 12.7.1994 and collected tax from one Yakub Saheb, Tirupati and others from 10.45 AM to 12.30 PM and therefore, the evidence of Pws. 1 to 6 that he visited the Branch office on 12.7.1994 is false. The stand of A-1 was that no money was recovered from his possession and whereas the stand of A-2 was that he received the tainted money on the date of the trap for remittance of the same to the Bank through challan on the instructions of A-1 and when he was about to remit the same to the Bank through challan, the ACB officials caught hold of him and seized the tainted amount. 4. The trial Court, on considering the evidence brought on record and on hearing the prosecution and the accused found A-1 guilty for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act and convicted him accordingly and sentenced him as stated supra while recording acquittal of A-2 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C.Act, by judgment dated 12.1.2005. Hence, these two appeals. 5. Heard Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant (A-1) in Criminal Appeal No.50 of 2005 and learned Standing Counsel for ACB appearing for the appellant in Criminal Appeal No.1423 of 2005. 6. Learned senior counsel submits that since the complainant himself did not support the prosecution version fully, it was not proper to place implicit reliance on his testimony to convict the appellant (A- 1). The statutory presumption available under Section 7 read with Section 20 of the P.C.Act was not to be utilized against the appellant/A-1 since there was no recovery from A-1 and there was no material to connect him with the tainted money and he should not have been held guilty. Learned senior counsel would further contend that the complainant-Pw-1 nourished grudge against A-1 since A-1 did not accept the greeting cards indented with him as they did not meet the specifications and to gratify his personal vendetta, he foisted the case against A-1. Learned senior counsel took me to the evidence of Pw.3 C.Damodaram, who admits of there being some argument between Pw.1 and A-1 about the greeting cards. 7. It is nextly contended by the leaned senior counsel that A-1 was not competent to verify the tax returns of Pw.1 in which case, question of his demanding Pw.1 to pay the bribe amount did not arise. Learned counsel refers the evidence of Pw.5-T.Siva Rami Reddy, Commercial Tax Officer, Tirupati, who stated in chief- examination that A-1 had no power including collection of tax over Audisree Enterprises of Pw.1. He also stated in cross-examination that though the Branch Office of Pw-1 is located in the jurisdiction of A-1, he has no authority to enter into the premises of the branch office. I deem it appropriate to refer the evidence of Pw.5 at this juncture. He admits in cross-examination that A-1 can enter into the premises of Pw.1 in the Branch Office and ascertain certain facts relatable to the returns. For better appreciation, I may refer the relevant portion of the cross examination, which reads as hereunder:- “ The A.C.T.O., i.e., A.O.1 has got duty to enquire that the dealer has been registered within the department, submitting the returns and paying the taxes in order to verify these facts during his duties, the A.O.1 can enter into the premises of Pw.1 in the Branch Office and ascertain these facts”. 8. A close reading of the evidence of Pw.5, I am in no doubt to conclude that Pw.1 is empowered to visit the Branch Office of Pw.1 for verification of certain returns. Therefore, the contention of the learned senior counsel that A-1 has no authority to inspect the Branch Office of Pws.1 and 6 has no merit. 9. Learned Special Public Prosecutor while supporting the judgment of the trial Court with regard to conviction and sentence of A- 1-C.R.Rajendran criticized the judgment with regard to acquittal of A-2- K.Giddaiah for the offences with which he stood charged. It is contended by the learned Special Public Prosecutor that tainted amount came to be seized from the possession of A-2 in which case, a presumption as provided under section 20 has to be drawn that the same has been accepted by him as illegal gratification and there being no explanation from him, acquittal recorded by the trial Court is liable to be set aside and instead, he is to be convicted for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C.Act. 10. The issues that call for adjudication in these appeals are:- (1) Whether the conviction and sentence of A-1 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act is legal and proper ? (2) Whether the acquittal of A-2 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act is legal and proper ? 11. 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 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. 12. 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 does 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[1] 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. 13. 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. 14. In Chaturdas Bhagawandas Patel v. State of Gujarat[2], 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. 15. I may now briefly refer the evidence keeping in view the aforesaid principles:- Pw.1 P.Dwarakanadh Reddy is the witness to speak of demand and acceptance of bribe by A-1. In Ex.P-1 report presented by him before Pw.6, it is stated that A-2-K.Giddaiah accompanied A-1 to his Branch Office where A-1 demanded bribe of Rs.2,000/- so as to avoid riding of his shop and booking a case against him. But Pw.1 stated on oath before the Court that it is A-1 who came to his shop on 12.7.1994 and demanded bribe. He did not speak of A-2 accompanying A-1 to his shop on 12.7.1994. Therefore, the prosecution sought permission of the learned trial Judge to treat Pw.1 as hostile and the learned trial Judge granted permission as sought for and accordingly he was subjected to cross-examination by the prosecution. In the cross-examination, on behalf of A-2, Pw.1 stated that he saw A-2 for the first time on the date of trap. For better appreciation, I may refer the cross-examination of Pw.1 on behalf of A- 2. “On the date of trap after I entered the room of AO1 he rang the bell and called A.O.2 by his name. After that A.O 2 came into A.O.1’s room. I saw AO.2 for the first time only on that day. A.O.1 directed me to hand over the amount to A.O.2.” A reading of the evidence of Pw.1 indicates that what he stated in Ex.P-1 report with regard to A-2 accompanying A-1 to his shop on 12.7.1994 proved to be false. 16. The very fact that the prosecution sought permission of the trial Judge to declare Pw.1 hostile means that Pw.1 was not speaking the whole truth. It is no doubt true that conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case, the Court must be satisfied that the implicit reliance can be placed on the testimony of such witness and that his testimony is free from blames that it can be acted upon without insisting upon corroboration. The testimony of the witness must be one, which inspires confidence and leaves no doubt in the mind of the Court about the truthfulness of the witness. The statement of solitary witness on a particular fact, if convincing and true and is found to be trust worthy can be accepted in support of the prosecution case and against the accused. Only in suitable cases, due caution has to be exercised. It cannot as a matter of course be discarded, vide decision of the Supreme Court in Sadhuram and another v. State of Rajasthan[3]. It was held by the Supreme Court in Chacko v. State of Kerala[4] that corroboration may be necessary when the witness is partially reliable. 17. Three relevant dates need to be noted before evaluating the evidence of Pw.1. The three dates are: - 12.7.1994, 20.7.1994 and 21.7.1994. On 12.7.1994, A-1 allegedly visited the shop of Pw.1 and made a demand of Rs.2,000/-. On 20.7.1994, Pw.1 allegedly met A-1 in his office and expressed his inability to pay Rs.2,000/- as bribe and thereupon, A-1 reduced the bribe amount from Rs.2,000/- to Rs.1,000/-. On 21.7.1994, Pw.1 after making up his mind not to pay the bribe amount, went to the office of the Deputy Superintendent of Police, ACB and presented Ex.P-1 complaint before him. 18. It is the version of Pw.1 before the Court that he met A-1 in his house and informed him of his inability to pay the amount and thereupon, A-1 reduced his demand from Rs.2,000/- to Rs.1,000/-. For better appreciation, I may refer the evidence of Pw.1 in his own words:- “ On 12.7.1994 at 11.00 A.M., while I was in the shop along with my mother, the 1st accused came and told us that though our shop room is within his jurisdiction he was not getting anything from our shop and asked us to pay a bribe of Rs.2,000/- threatening to seal the shop otherwise. On 20.7.94 I went to the house of accused and informed me that there were no defects in the accounts of my business. At that time, both A1 and A2 were present. I told him that I cannot pay so much of amount as there was no defects in my business. A1 then said at least I have to pay Rs.1000/- otherwise he would see that my shop will be closed”. 19. There is no ambiguity in the evidence of Pw.1 with regard to the place where Pw.1 met A-1 and thereupon, A-1 reduced his demand from Rs.2000/- to Rs.1,000/-. His version before the Court contradicts the version as reflected in Ex.P-1 complaint with regard to the place where A-1 allegedly reduced his demand from Rs.2,000/- to Rs.1,000/-. According to Ex.P-1 complaint, Pw.1 met A-1 at his office and expressed his inability and thereupon, A-1 reduced his demand from Rs.2,000/- to Rs.1,000/-. The relevant portion in Ex.P-1 complaint needs to be noted and it is thus:- “ ………….yesterday 20-7-94 at the time of morning 11 hours I went to the DCTO’s office at Korlagunta and met Sri Rajendra in his office and stated to him that I am not doing any illegal business and narrated about my business and requested that I am not in a position to pay bribe. He did not oblige for the same and stated that at least Rs.1,000/- may be paid within 2 or 3 days otherwise the shop will be raided and cases will be booked and he would see that my shop will be closed likewise he threatened. I agreed for the same as no other source. Then he instructed me that if I brought the bribe amount may be given to him if he stated so otherwise may be given to Giddaiah his Attender. He stated that if I did so I would not get any trouble, he threatened likewise. Giddaiah, Attender is also present when it was happened. I accepted for the same without other way. I have no interest to give bribe to ACTO Rajendra. But he would raid our shop and book cases against our shop. So I decided to give bribe on tomorrow, 22.7.1994. I pray that necessary action may be taken against Sri Rajendra, ACTO, Tirupathi”. 20. The appellant/accused pointed out this contradiction before the learned trial Judge. The learned trial Judge brushed aside this contradiction on the ground of there being some mistake in typing. For better appreciation, I may refer the relevant portion of the judgment impugned in the appeal, which reads thus:- “17. About the subsequent demand on 20-7-94 counsel for AO.1 has argued that as per the complaint in Ex.P-1, as per Ex.P.2 the statement of Pw.1 under Sec.164 Cr.P.C, the alleged meeting of Pw.1 with AO.1 was in the office and not in the house, but the evidence of Pw.1 is contradictory since Pw.1 has stated that he met the AO at his house on 20-7- 1994. He has further argued that the question of reducing the bribe amount from Rs.2,000/- to Rs.1,000/- on 20-7-1994 does not arise since the said amount was reduced from Rs.2,000/- to Rs.1,000/- even on 12-7-94 as per the evidence of Pw.1 and therefore these events leads to an irresistible conclusion that the evidence of Pw.1 is totally false about the visit of AO-1 to the shop of Pw.1 on 20-7-94. Public Prosecutor has argued that Pw-1 has not deviated from the contents of Ex.P.1, P.2 and his 161 Cr.P.C statement and it is a typographical mistake that instead of office it is typed as house and in the next sentence Pw.1 has stated that he returned from the office which indicates that in the prior sentence it is mistakenly typed as `house’ instead of `office’. He further argued that this ambiguity was clarified by the Court itself in the cross examination of Dw.4 (AO2) who clearly admitted about the visit of Pw.1 to the office of AO.1 on 20-7-1994”. As could be seen from the above-referred extract from the trial Court judgment, the learned trial Judge assumed that the word ‘house’ mistakenly typed instead of ‘office’. The Judge, who recorded the deposition of PW.1, is not the same Judge, who passed the judgment. Therefore, it is impermissible for the Judge who passed the judgment to presume that the word ‘office’ has been mistakenly mentioned as ‘house’. If there is any ambiguity, the learned trial Judge ought to have recalled PW.1 for clarification. Without taking such recourse, it is impermissible for the learned trial Judge to assume that the word