THE HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.2560 of 2004 ORDER: This is a State appeal from an acquittal recorded in an ACB trap case. The respondent hereinafterwards referred to as accused was at the relevant time Junior Checking Inspector, Circle-III, Civil Supplies, Visakhapatnam and he was an employee of Government of Andhra Pradesh and admittedly a public servant within the meaning of the Prevention of Corruption Act, 1988 (for short Act). 2. The accused was tried on two charges in C.C.No.9 of 1998 on the file of the Court of III Additional District & Sessions Judge- cum-Special Judge for Anti-Corruption Bureau (ACB), Visakhapatnam (trial court). The first charge is under Section 7 and the second one which is connected to the first charge is under Section 13(1)(d) r/w Section 13(2) of the Act and both are based upon allegations relating to demand of mamul and bribery. After considering the evidence, the trial court by its judgment dated 27.12.2002 rejected both the charges and acquitted the accused. Questioning that judgment, the ACB has come up with this appeal. 3. As the whole matter is now at large before this court it has to be considered in detail. The details of the oral and documentary evidence are mentioned in the appendix of evidence given at the foot of trial court judgment. 4. The prosecution case is this. P.W.1 N.Nageswara Rao is the de facto complainant. P.W.1’s wife Nalluri Devi is the fair price shop dealer of fair price shop bearing No.62 situated in a locality called Kothaveedhi of Visakhapatnam since 1982. P.W.2 N.Buchi Raju is the son of P.W.1 and both P.Ws.1 and 2 are looking after the business of the above fair price shop No.62. The accused who was Junior Checking Inspector at that time was entrusted with the job of exercising supervision and checking over several fair price shops bearing Nos.36, 37, 49, 50, 51, 53 to 65, 234 and 293 situated in Kothaveedhi area. Admittedly fair price shop No.62 belonging to P.W.1’s wife was within the jurisdiction of the accused/public servant. 5. The functions and duties of the accused as Junior Checking Inspector were to regularly carry out physical verification of stocks in the above fair price shops and check their registers and books of account to ensure that they were properly distributing the essential commodities to the genuine card holders and were not indulging in any questionable trade practices or misusing the stocks. As part of his job, the accused was visiting the fair price of shop of P.W.1’s wife and was carrying out checks but he was demanding P.W.1 to pay monthly mamuls. It is the version of the prosecution that on 09.05.1997 the accused visited the shop of P.W.1’s wife and verified its registers and signed in them and at that time he told P.W.1 that he was not paying the monthly mamuls and told him to pay monthly mamuls pertaining to the past ten months i.e. prior to 09.05.1997. Saying so, he told P.W.1 that he would again visit the shop on 21.05.1997. It is stated by the prosecution that on 21.05.1997 the accused again demanded P.W.1 to pay Rs.500/- towards monthly mamul but when P.W.1 expressed his inability to pay that amount he (accused) reduced the mamul amount to Rs.230/- per month and told him to pay it for the current month during his visit to P.W.1’s shop on 23.05.1997. It is also pleaded by the prosecution that if the above mamul amount is not paid to him, the accused is also said to have threatened P.W.1 with cases. 6. The further version of the prosecution is that as P.W.1 was unwilling to pay the mamul he gave Ex.P.1 report on 22.5.1997 to P.W.4 N.Saibaba, the ACB Deputy Superintendent of Police (DSP) of Visakhapatnam and accordingly the latter registered a case and made arrangements to lay a trap with mediators. The bribe amount of Rs.230/- consisted of four notes of Rs.50/- denomination and three notes of Rs.10/- denomination and this was brought by P.W.1. P.W.3 B.Srinivasa Rao is the then Assistant Executive Engineer, Roads and Buildings, Visakhapatnam and he is one of the two mediators the other being one Krishna Rao a Senior Assistant in the same office where the P.W.3 was working. After explaining the significance of the sodium carbonate solution test to P.W.1 and the mediators, the prosecution says that trap was laid on the morning of 23.05.2007 at the fair price shop of P.W.1’s wife and it was successful. The other details are not necessary. 7. The accused pleaded three defences. The main defence is that on 14.05.1997 P.W.1 fell short of cash of Rs.500/- to obtain the demand draft for lifting sugar stocks for his wife’s shop and therefore he borrowed that amount of Rs.500/- from the accused at his office and that by 23.05.1997 (date of trap) he already repaid Rs.270/- and that on the date of trap he paid the balance of Rs.230/- which was due and that therefore he (accused) readily accepted that sum of Rs.230/- when P.W.1 offered it as balance payable and that he never demanded any mamul or bribe. The second defence is that the accused detected about 76 bogus ration cards on which P.W.1 was earlier distributing rations and misusing the said rations, and the said bogus ration cards were cancelled which resulted in loss to P.W.1 and his wife and therefore P.W.1 was interested in putting the accused in trouble. This aspect relating to detection of bogus cards was admitted by P.W.1. The plea of the accused is that with the above motive, P.W.1 utilized the above loan transaction and repayment for involving him in the trap even by misleading the ACB police. The third one is that he did not visit the shop of P.W.1’s wife on 21.5.1997 and therefore the prosecution plea that he made demand on that day or on any previous day cannot be accepted. So far as the plea of the prosecution that the accused is a public servant within the meaning of the Act and also it obtained a valid sanction for prosecuting him there is no dispute. Thus in this appeal only the merits relating to the demand and acceptance of bribe amount i.e. mamul have to be gone into. 8. A perusal of the trial court judgment would show that it has in substance held that the prosecution case is replete with several doubts and in view of the same the above defences of the accused can be accepted as the evidence on record shows them to be probable. 9. Sri Ghani A Musa, the learned Special Public Prosecutor appearing for the ACB relied upon Prakash Chand v. State (Delhi Admn.)[1], State of A.P. v. V.Vasudeva Rao[2], Gura Singh v. State of Rajasthan[3] and Madhukar Bhaskarrao Joshi v. State of Maharashtra[4] and contended that the evidence on record clearly shows recovery of bribe amount from the person of the accused and therefore the trial court committed an error in disbelieving the prosecution case. He pointed that basing upon the presumption contained in Section 20 of the Act and the propositions laid down in the above decisions the prosecution case must be upheld. 10. On the other hand Sri C.Padmanabha Reddy, the learned senior counsel appearing for the accused pointed out that the first defence of the accused that he received the amount of Rs.230/- as repayment of the balance amount of the loan should be accepted and in view of the principle laid down in Punjabrao v. State of Maharashtra[5] the accused is entitled to an acquittal on that defence alone. He also pointed out that the other two defences of the accused should also be treated as acceptable on evidence. Both Sri Ghani A Musa and Sri C.Padmanabha Reddy have taken me through the evidence in detail. 11. It has now to be seen whether the charges brought against the accused should be sustained, or they should be rejected as held by the trial court and this is the point in this appeal. It is the version of the prosecution that accused demanded the mamul for not booking cases against P.W.1’s wife’s fair price shop so as to allow P.W.1 and his wife to run their business smoothly. This word mamul is used to indicate a periodical payment to a public servant to connive with and acquiesce in the irregularities and misconduct of a businessman for the violations committed by him governing his business. Thus if the demand and acceptance of mamul by the accused in this case are proved, it can be said that they would fall within the meaning of Section 7 and Section 13(1) (d) of the Act. The question is whether they can be said to have been proved by the prosecution. 12. The prosecution case and the defence version of the accused have already been set out supra. It is now settled that in a case like this which is based on a trap the prosecution must prove that there was demand and acceptance of the bribe amount which is called as mamul in this case. The aspect relating to recovery of the bribe amount and its significance is now proposed to be considered having regard to the circumstances of this case. The evidence of P.W.1, P.W.2 the mediator and P.W.4 the DSP would no doubt show that the accused received the amount of Rs.230/- treated with phenolphthalein powder in the shop of P.W.1’s wife on the date of the trap and that amount was recovered from the accused and the sodium carbonate solution test also proved positive on the hands of the accused. This is also recorded in the mediatornama for the post-trap proceedings which is marked as Ex.P.9. 13. It is also true as pointed out by Sri Musa that the evidence of P.Ws.3 and 4 and the recitals in the Ex.P.9 mediatornama would read that soon after seeing P.W.3 and P.W.9 DSP in the shop of P.W.1’s wife the accused is said to have trembled with fear and pleaded with P.W.9 saying that he committed a wrong in receiving the bribe and that if he is forgiven he would not take bribe again and that further he has got five sisters whom he has to look after and that his parents are dead and therefore he should be pardoned for that misconduct. Sri Ghani A Musa relied upon this statement of the accused and contended that this conduct of the accused accompanied by the above statements would show that accused is guilty of receiving bribe as it was recovered from his person and this is sufficient to sustain the charges. There is no force in this contention. 14. It may be noted that the above statement of the accused recorded in Ex.P.9 is in the nature of a confession made to a police officer i.e. P.W.4 here and therefore it becomes irrelevant as it would be hit by Section 25 of the Evidence Act. In Prakash Chand’s case the question of conduct of the accused falling under Section 8 of the Evidence Act as distinguished by a mere statement made to a police officer in the course of investigation came up for consideration before the Supreme Court. This decision is not helpful for the prosecution. Here the statement of the accused pointed out by Sri Ghani A Musa is clearly inculpatory and stands hit by Section 25 of the Evidence Act and it cannot be made basis for conviction. 15. It may on the other hand be noted here that in the same Ex.P.9 mediatornama at a later stage it is mentioned that when the DSP questioned the accused about his version regarding the amount of Rs.230/- found with him the accused is said to have explained about the above mentioned loan transaction of Rs.500/- which he is said to have lent to P.W.1. for purchasing the draft for lifting the sugar stocks on 14.05.1997 and that P.W.1 paid him Rs.270/- earlier and on the date of trap he paid the balance amount of Rs.230/- to him and he received the same innocently and he did not demand any bribe or mamul from P.W.1. It should be noted that the accused gave explanation in the post-trap proceedings i.e. on the spot. Unless there is some ring of truth in the explanation the accused would not have given such an explanation weaving a story which would not normally be possible to do in a situation which would be tense for any public servant in post-trap proceedings especially when the amount is recovered from his person. There are other circumstances which support the above conclusion. 16. It should first of all be noted that the amount of Rs.230/- as it is a very odd figure and it is not explained by P.W.1 as to why the accused demanded that amount in stead of amounts in round figures as discussed by the trial court in detail. Further P.W.1 also admitted in his cross-examination that he lifted the sugar stocks on 14.5.1997. In fact the date of loan i.e. 14.5.1997 and the purpose of that loan given by the accused on the spot in the post- trap proceedings tally with the above answer of P.W.1 and it is a plus point for the accused. It is true that P.W.1 is a businessman and he could have repaid the loan of Rs.500/- in toto at a time or at least in two instalments of Rs.250/- each or one instalment of Rs.300/- and the other of Rs.200/-. The defence version that P.W.1 paid initially Rs.270/- and later on paid Rs.230/- may also look odd. 17. However equally the plea of P.W.1 that accused demanded Rs.230/- as mamul for the current month looks also odd having regard to the amount. In the backdrop of such equally odd stands taken by both sides, the one which is favourable to the accused should be taken having regard to the principle that when two views are possible on evidence, the one favourable to the accused should be preferred. To repeat, the accused gave his above explanation about the loan theory on the spot in the post-trap proceedings and this assumes importance and supports the above view. Consequently the contention of the counsel for accused that the passage in the second mediatornama which reads that the accused trembled in fear and sought a pardon at first was introduced only to get over the above explanation of the accused cannot also be ruled out. Thus the above defence of the accused cannot be rejected as it raises a reasonable doubt about the prosecution case. 18. Even with regard to the demand on 21.5.1997, the accused has examined D.W.1 Pentapati Suryanarayana the allottee of fair price shop No.51 which is also according to the prosecution within the supervisory jurisdiction of the accused. His evidence is that P.W.1 did not open the fair price shop of his wife on 21.5.1997. D.W.1 also said that on that day the accused visited his shop and informed him that P.W.1 shop was closed and therefore he could not go there. The prosecution did not file any documentary evidence to show that P.W.1 or his wife transacted any business on 21.5.1997 in their fair price shop. He also stated that on that day accused informed him about the amount owed by P.W.1 to him. In the face of such evidence it is difficult to accept P.W.1’s version that he kept open the shop on 21.5.1997 especially when there is nothing on record to show that D.W.1 is speaking falsehood. The prosecution or P.W.1 could have filed the record of P.W.1’s shop such as some registers to show that he transacted business on 21.05.1997 to support his evidence that he kept the shop open and in the absence of such evidence the version of D.W.1 another fair price shop dealer cannot be rejected outright. The trial court discussed this aspect and also the aspect relating to the loan transaction in detail and concluded that the prosecution version about both demand and acceptance cannot be said to be free from doubt. It also discussed about the absence of evidence from other traders to show that the accused was in the habit of demanding periodical payments towards mamuls and concluded against the prosecution on that ground also. 19. I should now mention here regarding the presumption under Section 20 of the Act relied upon by Sri Ghani A Musa with regard to the recovery of amount of Rs.230/- from the person of the accused. The decision in V.Vasudeva Rao’s case (2 supra) speaks of above presumption in such a case and says that it is for the accused to rebut it. The decision in Madhukar Bhaskarrao Joshi’s case (4 supra) says that when a public servant is found in possession of the currency notes smeared with phenolphthalein powder that is sufficient to draw legal presumption under Section 20(1) of the Act. There cannot be any dispute with the above propositions and Sri Ghani A Musa is relying upon the above decisions in support of his contention that mere recovery of Rs.230/- from the accused is sufficient to sustain the charges. 20. At the same time in Punjab Rao’s case (5 supra) relied upon on behalf of the accused it is laid down that where the explanation of the accused-public servant for the money found with him is found reasonable and acceptable the same can be upheld notwithstanding the recovery of the amount from the person of the accused. The above two decisions relied upon by Sri Musa will be applicable where the accused has failed to give an explanation or where his explanation is found to be untenable and not when the explanation is found to be reasonably probable as in this case. He then relied upon Gura Singh’s case (3 supra) decided by the Rajasthan High Court to show that since P.W.1 denied the explanation of the accused regarding the loan transaction the same cannot be accepted. The principle laid down in this case is that where suggestions are made to a witness in cross- examination pleading a particular line of defence, then such line of defence cannot be accepted when the witnesses have denied the said suggestions. There is no dispute about this proposition also, but this will be applicable when there are no other circumstances in the evidence to support such a defence. After all it may be noted that a witness will always be careful to deny all the suggestions which if accepted may fortify the defence. However when the other circumstances in the case show that the defence is plausible or cannot be rejected as untenable as in the present case, the fact that the witness i.e. P.W.1 has denied such defence cannot assume any importance. Thus the above decision also cannot help the prosecution. 21. Above all it should be noted that this is an appeal from acquittal and having regard to the circumstances which are mentioned above and the well considered reasons of the trial court it would be difficult to interfere with its judgment of acquittal. Accordingly deciding the point against the prosecution, this appeal is dismissed. ______________________ N. RAVI SHANKAR, J 13th December, 2011 CVRK [1] AIR 1979 SC 400 [2] 2004 CRI.L.J 620 [3] 1984 CRI.L.J 1423 [4] 2001 CRI.L.J 175 [5] (2002) 10 SCC 371