THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.1312 of 2003. JUDGMENT: This is an appeal against the conviction and sentence passed by the Additional Special Judge for SPE & ACB Cases – cum – V Additional Chief Judge, City Civil Courts, Hyderabad in C.C.No.15 of 1998 on 25.11.2003. The appellant herein was prosecuted for the offence under Section 7 and Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (for short “P.C.Act”.) According to the prosecution, the accused worked as Professor of Radiotherapy and Chief of Cancer Ward, Government General Hospital, Kurnool from 17.11.1988 to 11.07.1997. P.W.1, who is a resident of K.Nagalapuram village, Gudur Mandal of Kurnool District got admitted his younger brother Bhaskar Babu on 24.04.1997 as inpatient in Government General Hospital, Kurnool as he was suffering from pain and swelling on his right shoulder. The patient was examined by the Orthopaedic surgeon and was referred to cancer unit. On 20.05.1997, P.W.1 took his brother to the accused in the cancer unit, wherein the accused without examining the patient, re-referred the patient to the Orthopaedic unit. Again on 27.05.1997, when P.W.1 accompanied by Orthopaedic doctor, took his brother to the accused, then the said Orthopaedic doctor has discussed with the accused about the treatment to the Patient Bhaskar Babu. After the departure of Orthopaedic doctor from the cancer unit, the accused demanded Rs.1,500/- from the complainant for giving radiotherapy treatment to his brother. When the complainant pleaded for consideration, the accused instructed the complainant to meet him along with the demanded bribe amount at his residence in the evening hours. As the complainant neither met the accused nor paid the bribe amount either on 27.05.1997 and 28.05.1997, the accused abruptly stopped the radiotherapy treatment to his brother on 29.05.1997. Thereafter, the complainant approached the accused in the evening of 29.05.1997 at his residence, who reacted violently for not paying the bribe amount as demanded by him and warned him that unless and until the complainant complied his demand of Rs.1,000/-, his brother would not be given radiotherapy treatment in the hospital. The complainant unwilling to pay the bribe amount to the accused, lodged a complaint with the Deputy Superintendent of Police, A.C.B., Kurnool on 29.05.1997, who registered the case in Crime No.10/ACB-KUR/1997 and took up investigation. During the course of trap proceedings, the Deputy Superintendent of Police, A.C.B - P.W.8 secured the presence of P.W.2 Dr.P.Narayana Swamy, Veterinary Assistant Surgeon, S.C. Corporation, Kurnool, and S.Jagannatha Reddy, Deputy Educational Officer as mediators and laid the trap against the accused on 30.05.1997, after observing all the formalities. On 30.05.1997, when the complainant approached the accused at about 12.00 noon at his office chamber in the cancer unit of Government General Hospital of Kurnool, the accused reiterated his demand and accepted the tainted currency of Rs.1,000/- as bribe from the complainant. When both hand fingers of the accused subjected to sodium carbonate solution for the presence of phenolphthalein particles, it yielded positive results. The tainted currency of Rs.1,000/- was seized from the possession of the accused, which was produced by the accused along with hand kerchief from his right side pant pocket. The hand kerchief and inner linings of pant pocket, when tested in the sodium carbonate solution, they also yielded positive results. P.W.8 examined the witnesses and recorded their statements. The investigation discloses that the accused demanded and accepted the tainted currency of Rs.1,000/- as bribe from the complainant to give radiotherapy treatment to his brother, thereby committed the offence punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of P.C.Act. Sanction was obtained for prosecution of the accused under G.O.Ms.No.203 dated 06.06.1998 of Health, Medical and Family Welfare Department. The learned Special Judge has framed the charges under Sections 7 and 13 (1) (d) read with Section 13 (2) of P.C. Act against the accused and the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges examined P.Ws.1 to 9 and got marked Exs.P.1 to P.15 and M.Os.1 to 6. The accused, in defence examined D.Ws.1 to 4 and got marked Exs.D.1 to D.3. The learned Special Judge by taking into consideration of the said oral and documentary evidence, found the accused guilty for the charge under Section 7 of P.C. Act, convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- in default to suffer simple imprisonment for three months. The accused was also further found guilty for the offence under Section 13 (1) (d) read with Section 13 (2) of P.C. Act, convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for three months. Aggrieved by the said conviction and sentence, the present appeal is filed. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 7 and 13 (1) (d) read with 13 (2) of the P.C. Act against the accused beyond reasonable doubt? P O I N T: Learned counsel for the appellant has pleaded that the appellant was falsely implicated in this case as he did not accept the demand made by ACB Inspector Jayachandrudu, who was in the habit of blackmailing the Government Officials and extracting money and also as some of the Doctors, working in the hospital are jealous against the accused, they got the false trap laid against him. Appellant’s counsel has further pleaded that P.W.1- complainatn is not the attendant to the patient Bhaskar Babu and his father was only attending the patient and the complainant was planted for the purpose of this case by ACB Inspector- Jayachandrudu and other Doctors. The appellant’s counsel has further pleaded that the appellant never demanded any money from the complainant and on the alleged date of demand i.e. on 29.05.1997 he was not at his residence and he was attending the marriage reception of daughter of Dr. C.Anjanayulu (D.W.1) and he was with him from 1.30 p.m to 5.00 p.m on that day. The appellant’s counsel has further pleaded that the appellant did not demand or accept any illegal gratification, but the father of the patient Bhaskar Babu by name Anthony came to his chamber on 30.05.1997 and offered money for giving treatment to his son, when the accused refused to take money, he kept the money on the table of accused and went away. Immediately, the accused took out the amount in order to return back the same to the patient, who was in the Orthopaedic ward and when he was going to ward, the ACB officials obstructed him and caught hold of his hands and brought him back to the chamber and conducted the show of test, alleged to have been sodium carbonate test. Learned Standing Counsel for ACB has pleaded that the accused could not establish that he was falsely implicated in this case at the instance of Jayachandrudu or some of the Doctors, who are enimical to him, as he did not mention the names of Doctors, who are enimical to him in the hospital, and the evidence of P.Ws.1 and 2 establish the demand for illegal gratification by the accused-officer and the evidence of P.Ws.3, 4 and 5 shows that the brother of P.W.1 took treatment in the cancer unit under the supervision of the accused-officer and from the evidence of P.Ws.4, 5 and 6, it is established that the accused-officer has directed the attendant of patient Bhaskar Babu to meet him on 28.05.1997, when the patient was already taken radiotherapy treatment on that day, he instructed the radiotherapy department to send the attendant of the patient to him and asked them to stop the treatment. As such the complainant has gone to the residence of the accused-officer, where again he demanded for payment of Rs.1,000/- and on the next day i.e. 30.05.1997, the trap was arranged and which was successful. As the prosecution could able to establish the demand and acceptance of illegal gratification by the accused-officer, the prosecution is entitled for presumption available under Section 20 of the P.C. Act and the accused-officer failed to rebut the said presumption and also failed to establish the alibi pleaded by him and the defence taken by him that the money was thrusted on him by the father of the patient Bhaskar Babu on 30.05.1997. According to the prosecution, the patient by name Bhaskar Babu was admitted in the Orthopaedic ward on 24.04.1997 and the complainant-P.W.1 was the brother of the said patient, who was attending on him. On 20.05.1997, the Orthopaedic department has referred the patient to the caner unit and P.W.1 along with his brother went to the cancer unit, but the accused-officer has referred him back to the Orthopaedic department and the Orthopaedic department people has again referred him to the cancer unit, again the patient was returned to Orthopaedic department with an endorsement ‘for discussion’, thereupon, on 27.05.1997 Orthopaedic department has sent P.W.3 Orthopaedic surgeon along with the patient and after discussions, accused-officer agreed to give radiotherapy treatment to the patient Bhaskar Babu and after the Orthopaedic surgeon left the cancer unit, the accused demanded P.W.1 for payment of Rs.1,500/- for giving radiotherapy treatment. P.W.1 pleaded for consideration as he was unable to pay the said amount, but the accused-officer instigated for payment of the bribe amount at his house in the evening. But, the complainant did not meet him on the evening of 27.05.1997 nor 28.05.1997, but the treatment was given to the patient Bhaskar Babu for two days and on 28.05.1997 the accused-officer sent a word to radiotherapy department to send the attendant of the patient to him, but by that time, the patient was already given radiotherapy treatment and left that place, as such the accused-officer instructed the radiotherapy department to send the patient’s attendant on the next day and asked them not to give the radiotherapy treatment to the patient on the next day, and P.W.1 has gone to the house of accused-officer on 29.05.1997 in the evening and where he demanded the bribe amount and unless and until he pay Rs.1,000/-, he is not going to give the radiotherapy treatment to his brother. Thereupon, he lodged a complaint with the Deputy Superintendent of Police on the same day evening and he laid a trap on 30.05.1997, which was successful and tainted amount was recovered from the possession of the accused. The main contention of the appellant’s counsel is that P.W.1 is not the attendant on the patient, who was in the orthopaedic ward and who took treatment in the cancer unit. P.W.1-complaiant has categorically stated that his father is a driver in the APSRTC and he (P.W.1) was attending on the patient, who is his younger brother, in the hospital and his father was attending to his duty and the rest of the children except the married sister were going to schools and they are two sisters and three brothers. He has stated that himself and his brother has not given any letter for undergoing radiotherapy treatment and in the re-examination he has stated that Ex.P.3 is the endorsement on the case sheet of patient with his signature giving consent for radiotherapy treatment. But in the further cross-examination he has stated that the endorsement is to the effect that he is taking his brother out of the hospital and that he bring him back at 1.00 p.m and that if anything happens to his brother, he is responsible and that the hospital people are not responsible for the same and accordingly he took his brother from the hospital. In order to establish that the father of the patient Bhaskar Babu was attending on the patient, the accused-officer has examined Dr. B.Seshanna as D.W.3 and according to him he worked as Professor and Head of the Department of Orthopaedic, Government General Hospital, Kurnool and one patient by name Bhaskar Babu was admitted in his unit on 24.04.1997 with pain and swelling in right shoulder. The said patient was being attended by his father Anthony. The said patient was first admitted in his unit and it is diagnosed, he was suffering with cancer of Humurus right and he further stated that after counseling in the cancer unit, he obtained the consent of the patient and his father for giving treatment. The appellant’s counsel has pleaded that after completion of the trap, when the mediators along with trap party coming out of the chambers of the accused-officer, the father of the patient came opposite to them. Simply, because the father of the patient was met the trap party near the chamber of the accused-officer, it cannot be said that he was the person, who met the accused- officer or he was attending on the patient Bhaskar Babu during his treatment in the hospital. The learned Special Judge has rightly observed that P.W.1’s father was working as driver in APSRTC and P.W.1, completed his M.Sc., final year examinations in the month of April or May, 1997 and he is unemployee, he alone attending on the patient and not his father. Therefore, the contention of the appellant’s counsel that P.W.1 is not the person, who is attending on the patient Bhaskar Babu cannot be accepted. The next contention of the appellant’s counsel is that there is no demand or acceptance of the illegal gratification by the accused-officer. According to P.W.1 on 20.05.1997 Orthopaedic department referred his brother to the cancer unit and he has gone along with the patient to the cancer unit, but the accused-officer without examining his brother referred him back to the Orthopaedic unit and he asked him whether he has brought the fee but he could not understand the same and returned back to the Orthopaedic unit and on 27.05.1997 two Orthopaedic surgeons came along with them to the cancer unit and discussed with the accused-officer and thereafter the accused-officer agreed to give radiotherapy treatment to his brother and after the orthopaedic surgeons left the unit, the accused-officer asked him to pay Rs.1,500/- for giving radiotherapy treatment. He expressed his inability to pay the said amount; the accused-officer threatened him and asked him to meet him in his residence with the money in the evening. But he did not go to the residence in the evening, i.e. on 27.05.1997 or 28.05.1997, but treatment was given to his brother on those two days, but on 29.05.1997 when they went to the Radiotherapy unit for treatment, the unit people asked them to meet the accused- officer and not given Radiotherapy treatment on that day. On the same day evening, he went to the residence of accused-officer and expressed his inability to pay Rs.1,500/-. Then the accused- officer demanded for payment of Rs.1,000/- on the next day in the hospital. Then he came out of the residence of accused-officer and gone to the Deputy Superintendent of Police, ACB and lodged the complaint. In order to establish that the patient was taken to the cancer unit on 20.05.1997 the prosecution has examined P.W.3 Dr. K.Srinivas, who is working as Assistant Professor in Orthopaedics in Government Hospital, Kurnool. According to him, one patient byname Bhaskar Babu was admitted in their unit on 24.04.1997 and they referred the case to the Pathology department on 03.05.1997 and they received the report on 07.05.1997. After going through the report, they came to the conclusion that the patient was suffering from Cancer. Then they referred him to the radiotherapy treatment on 20.05.1997. The radiotherapy department asked for some investigations. After doing that investigation again they referred him to the cancer unit on 22.05.1997, but the patient was returned to the Orthopaedic department with an endorsement “for discussion”. Again on 23.05.1997 they sent back the case sheet on 23.05.1997 with an endorsement to refer to the Radiotherapy. On 26.05.1997 Chief of his unit asked him to discuss with the accused-officer about the said case. On 27.05.1997, he went to the radiotherapy to discuss with the accused-officer and on that day he also took the patient along with him and in the presence of the patient, himself and accused-officer discussed and told the patient that there is complication in radiotherapy treatment, on that patient and patient’s father gave consent for radiotherapy treatment. Therefore, the version of P.W.1 that the patient was taken to the accused-officer along with orthopaedic surgeon on 27.05.1997 was established and according to P.W.1 radiotherapy treatment was given to his brother on 27.05.1997 and 28.05.1997 and abruptly stopped the treatment on 29.05.1997 and when he enquired about the same, he came to know that the accused-officer instructed them to stop the treatment and asked him to meet the accused- officer. According to him, on the evening of 29.05.1997 he met the accused-officer at his residence and he demanded for payment of Rs.1,000/-. In order to establish the stoppage of treatment on 29.05.1997 and the accused-officer instructed the radiotherapy department to send the attendant of the patient to him, the prosecution has examined P.Ws.4 and 5. P.W.4 – K.Elizabeth is working as Head Nurse in Government General Hospital, Kurnool. According to her, the accused-officer was the chief of cancer unit. During that time A.Krishna Murthy, P.Jaya Rama Chandrudu and K.Mohan were the technicians in the radiotherapy department and on 27.05.1997 and 28.05.1997 one patient by name Bhaskar Babu was put on radiotherapy treatment. On 28.05.1997 the accused-officer directed her to go to radiotherapy department and ask the technicians to send the attendant of the patient Bhaskar Babu to him. Accordingly, she went and informed them, but they informed her that the patient had already taken radiotherapy treatment and returned back to the ward along with attendant. She informed the same to the accused-officer. Then the accused-officer asked her to go to radiotherapy department and ask the technicians not to give treatment to the patient Bhaskar Babu on the next day and direct his attendant to come and meet him. In the cross- examination, she has stated that as staff nurse, her duty was in the female ward and outpatient wing. The female ward is at a distance of about 70 to 80 yards behind accused officer’s unit. She was not having any duty in radiotherapy department during that time and she admitted that on 28.05.1997 at 12.00 noon the accused-officer called her to his chamber while she was in the O.P. and asked her to go and inform the radiotherapy department not to give the treatment to the patient Bhaskar Babu on the next day. She also further stated that when the accused-officer called her from his chamber as ‘sister’, she heard it in O.P. room and went to the accused-officer. The appellant’s counsel has pleaded that P.W.4 is in the female ward, which is at a distance of about 70 to 80 yards behind the accused-officer’s unit and therefore, the question of hearing the call made by the accused-officer is doubtful and also pleaded that the accused-officer whenever wants to call the person, he is using the calling bell. Therefore, the calling of P.W.4 on that day by the accused-officer is not probable and she was only planted by the investigating agency for the purpose of this case. The said contention of the appellant’s counsel cannot be accepted and P.W.4 working as staff nurse in the cancer unit, for which the accused-officer is the head and as admitted by her, she was on duty in the female ward and also outpatient wing. As per the rough sketch of the scene of offence Ex.P.10 and also plan of the cancer unit filed by the accused Ex.D.3 shows the outpatient wing is by the side of the chamber of the accused-officer. Therefore, the version of P.W.4 that when she heard the call made by the accused-officer as ‘sister’, she has gone and meet him in his chamber cannot be disbelieved. The evidence of P.W.4 was supported by the evidence of P.W.5 A.Krishna Murthy, who is working as radiographer and he also stated that on 27.05.1997 one patient by name Bhaskar Babu was referred to the radiotherapy treatment by the accused-officer. They gave the treatment on that day and also gave the treatment on 28.05.1997 and after taking treatment, the patient and his attendant went away from their unit. Then P.W.4 came to the unit and informed them that accused-officer calling the patient and his attendant, then he replied that they have gone back to Orthopaedic ward after the treatment. After some time, P.W.4 came back and asked them to tell the patient Bhaskar Babu and his attendant to go and meet the accused-officer on the next day and asked him not to give the treatment on the next day. On the next day, when the patient by name Bhaskar Babu came to them, he informed him and his attendant to meet the accused-officer. Therefore from the evidence of P.Ws.4 and 5, it is evident that the accused-officer has asked the attendant of the patient to meet him on 29.05.1997. According to P.W.1, he has gone to the house of accused-officer on that day evening and met him, where he demanded for payment of Rs.1,000/-. According to the appellant’s counsel, the accused was not present in his residence on that day from 1.30 p.m. to 5.00 p.m., as such the question of P.W.1 meeting the accused-officer at his house on that day evening and the accused-officer demanding the amount does not arise. In support of the contention of the appellant’s counsel, D.Ws.1 and 2 were examined on behalf of the accused. D.W.1 is Dr. C.Anjaneyulu, according to him he performed his son’s marriage on 26.05.1997 at Hyderabad and hosted reception on 29.05.1997 at TTD Kalyan Mandapam ‘C’ camp, Kurnool in the afternoon 1.30 p.m and most of the doctors including the accused- officer attended the reception. Accused-officer attended the reception after 2.15 p.m. on that day and he was with him till 5.00 p.m. D.W.2 was also attended the reception and after 5.00 p.m tea and snacks were supplied to all of them and after taking tea, they left that place and he got marked Ex.D.1 wedding invitation card and Ex.D.2 is the cover. D.W.2 Dr.Sikander Hayat, who was professor of Opthomology at Kurnool Medical college also supported the version of D.W.1 with regard to his attending the reception at 1.30 p.m. and also accused-officer coming to the reception at 1.30 p.m. on 29.05.1997 and stayed with them till the reception is over, but he did not state till what time the accused-officer has stayed along with him in the reception. Ex.D.1 is the invitation card and Ex.D.2 is the cover addressed to accused-officer and as per Ex.D.1 the reception and lunch on 29.05.1997 from 1.30 p.m onwards at TTD Kalyana Mandapam. Even if the evidence of D.Ws.1 and 2 is accepted the accused-officer might have attended the reception at 1.30 p.m. or 2.00 or 2.15 p.m., but the version of D.W.1 that he was with him up to 5.00 p.m. cannot be believed as D.W.2, who also attend the reception did not speak about his presence along with accused- officer at the reception till 5.00 p.m on that day and he also did not spoke anything about the D.W.1 supplying tea and snacks after 5.00 p.m. to the guests, and thereafter only they disbursed. As admitted by P.W.1 in the cross-examination, he went to the residence of accused-officer on 29.05.1997 between 12.00 noon to 3.00 p.m. and again it was elicited from him that he approached the accused-officer between 3.00 p.m and 3.30 p.m. According to P.W.1 at 4.00 p.m. on 29.05.1997 he lodged the complaint with the Deputy Superintendent of Police, ACB. Therefore, prior to lodging of the complaint as admitted by him, he met the accused-officer at his residence. As the accused-officer has failed to establish that he was not at his residence on 29.05.1997 from 1.30 p.m. to 5.00 p.m. the prosecution could able to establish that P.W.1 met the accused-officer