* HON’BLE SRI JUSTICE B.N. RAO NALLA +Crl.A. No. 65 of 2006 %02-07-2010 #N. Sunkanna …. Appellant Vs. $ The State of Andhra Pradesh through Inspector of Police, ACB, Kurnool …. Respondent !Counsel for the Petitioners: Sri K. Suresh Reddy Counsel for the Respondents: Sri V. Ravi Kiran <Gist : >Head Note: ? Cases referred: 1. AIR 1979 SC 1408 2. AIR 1960 SC 490 3. AIR 2007 SC 51 HON'BLE SRI JUSTICE B.N .RAO NALLA Crl. A.No. 65 OF 2006 DATED : 02.07.2010 Between : N.Sunkanna … APPELLANT A N D The State of A.P. through Inspector of Police, ACB Kurnool. … RESPONDENT JUDGMENT: This Criminal Appeal is directed against the judgment dated 06.01.2006 delivered in C.C. No.5 of 1995 wherein the learned Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, having considered the evidence both oral and documentary, found the accused guilty of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”) and sentenced him to undergo Rigorous Imprisonment for one year and pay a fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of three months for the offence punishable under Section 7 of the Act. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and pay a fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for a period of three months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act and it is further ordered that both the sentences of imprisonment shall run concurrently. The case of the prosecution in brief is that the appellant was the Deputy Tahsildar, Kurnool. He used to collect ‘mamools’ Rs.50/- per month from every Fair Price Shop Dealer. The Complainant (PW-1) was a Fair Price Shop dealer. The appellant-accused officer visited PW-1’s shop and demanded ‘mamool’, and stated that if he did not pay, the appellant would get the licence cancelled. PW1 agreed to pay monthly ‘mamool’ with effect from April 1993. On 17.09.1993, when PW-1 met the accused and asked him to issue bills, the accused demanded Rs.300/- towards monthly mamools from April 1993. Even though PW-1 promised to pay mamools on 20.09.1993, in fact, he was not willing to pay it, as such, he approached PW7 - DSP, ACB and gave Ex.P1 - complaint. PW7 collected mediators, one of whom, was examined as PW-2, and conducted pre-trap proceedings - Ex.P3, and instructed the complainant to go to the appellant and pay the amount on demand. PW1 went to the appellant at 01:35 P.M. in Mandal Revenue Office and paid him Rs.300/- on demand. On giving pre- arranged signal, the trap party went to the appellant’s Office, by which time, the appellant was coming out of his room after getting it locked by his Attendant, then PW7 - D.S.P. got it opened, and all of them went into the office. Phenolphthalein test was conducted on right hand fingers of the appellant, as a result, the sodium carbonate solution turned pink. Later, he asked the appellant to remove the tainted amount from his left pocket of his shirt. The inner side of the left side shirt pocket was also subjected to test and it proved positive. He collected the files from the table of the appellant and prepared post- trap proceedings under Ex.P-4. When the appellant was questioned, he had no explanation to offer. Thereafter, he was arrested and released on bail. Investigation was entrusted to PW8 - C.I.D, A.C.B., who, after completing the investigation, obtained sanction and filed charge sheet. During the course of trial, the complainant was examined as PW-1, who did not support the case of the prosecution. The learned Special Public Prosecutor got declared him as hostile subjecting him to cross examination, wherein the entire prosecution case was put to PW1 in the form of suggestions. However, PW1 denied the same. During the course of cross-examination of PW1 on behalf of the accused officer, PW1 admitted that the accused had sent Ex.D1 - Circular, dated 16.09.1993 with copies to him and other Fair Price Shop dealers informing them to contribute to the National Savings Certificates bonds, which contain his signatures and other Fair Price Shop dealers. He further deposed in the cross-examination that Ex.D1 does not bear the office seal of the Mandal Revenue Office, Kurnool or of the Deputy Tahsildar and on Ex.D1 – Circular, the date i.e. 16th is written with pen. So far as the evidence of PW2 – Senior Assistant in the office of the District Manager, A.P. State Housing, Corporation, Kurnool, in regard to pre and post trap procedure, is concerned, he admitted to be one of the mediators thereto. However, he stated that on the fateful day, they reached Mandal Revenue Office at 01.30 P.M. While they were waiting outside, the complainant went inside the Office and came out by 01.14 P.M. giving pre-arranged signal to them, then they went to the office room of the accused and saw him getting the door of the office locked through the Attendant. PWs.3, 4 and 6 other Fair Price Shop dealers were examined to show that the appellant/accused was in the habit of accepting mamools from the fair price shop dealers. They have not supported the case of the prosecution, as such, they too were declared hostile. So far as the evidence of PW5 is concerned, he is only examined to show that Ex.B7 – G.O. was issued sanctioning the prosecution of the accused officer. PW7 is the D.S.P., A.C.B, who is the trap-laying officer. His evidence is only to testify as to the compliance of the procedure of pre and post trap proceedings. He admitted in his cross-examination that he was not aware of the issuance of Ex.D1 - Circular dated 16.09.1993, alleged to have been issued by the Deputy Tahsildar (Civil Supplies), Kurnool to all the Fair Price Shop Dealers to collect National Savings Certificates. Though he denied the suggestion that the complainant paid Rs.300/- to the accused officer towards the National Savings Certificate, it is canvassed that the possibility of that amount being paid towards the aforesaid purpose appears to be probable. PW8 - Investigating Officer testified as to his examining and recording the statements of PWs. 3, 4 and 6. He also testified as to obtaining Ex.P7 - Sanction Orders, and lastly, as to laying charge sheet against the appellant/accused after completing the investigation. On the other hand, the evidence of DW1 – Section Writer in Mandal Revenue Office, Kurnool is to the effect that the Mandal Revenue Officer, Kurnool was instrumental in foisting a false case against the appellant/accused. DW2 was the Senior Assistant in Mandal Revenue Office at the relevant time. He also spoke as to the fact that previously the Mandal Revenue Officer confiscated the stock of an extent of 80% in the Fair Price Shop of PW1 to the Government, but on appeal by PW1, the Joint Collector reduced confiscation of stock to 20%. However, the evidence of DW2 is not at all connected with the facts of the present case. The evidence of DW3 is to the effect that the complainant, during 1992-1993, never gave any amount to the accused and the Fair Price Shop Dealers never paid any amount to him. The evidence of DW4 is on the same lines as that of DW3. He testified that the administration of the Fair Price Shop dealers did not pay any amount as bribe to the accused officer and the complainant also did not pay any amount to the accused officer towards bribe. Sri K. Suresh Reddy, learned counsel for the appellant has strenuously contended that the trial Court erroneously convicted the appellant-accused based on Ex.P1 -complaint, the contents of which are denied by PW1. The trial Court also relied on the earlier 164 Cr.P.C. statement, dated 08.10.1993, recorded by the Judicial Magistrate of First Class, Kurnool. However, an exception is taken thereto stating that PW1, while his statement was recorded by the Additional Judicial Magistrate of First Class on 08.12.1994, he stated that A.C.B. officials asked him to give his statement before the Court and he obliged them, however, it was not voluntary. However, it is contended that since none of the prosecution witnesses supported the prosecution case, except the official witnesses, the trial Court, by solely relying on the presumption under Section 20 of the Act, 1988 brushing aside the contention raised by the appellant/accused that as per the instructions of the Deputy Tashildar, Civil Supplies, Kurnool, for fixing up targets in contribution towards National Savings Certificates, and in that connection, the complainant paid Rs.300/- to the accused officer, found the appellant/accused guilty of the alleged offences. The case of the appellant is that two statements of PW1 under Section 164 Cr.P.C. are stated to have been recorded by the Judicial Magistrate of First Class, Kurnool, and PW1 is stated to have been omitted in his formal 164 Cr.P.C. statement to refer to his contributions towards National Savings Certificate bonds, and he has categorically stated in his later 164 Cr.P.C. statement that he had paid the alleged amount to the accused/officer towards National savings Certificate bonds only. Therefore, it is contended that in such a situation, the sanctity of a formal statement recorded under Section 164 Cr.P.C. is lost. Further, the other Fair Price Shop dealers, who are examined as PWs.3, 4 and 6, also stated that the Deputy Tahsildar, Civil Supplies, Kurnool, had fixed targets in contribution towards the National Savings Certificate bonds and the same obliges the principal contention of the appellant/accused that PW1 had paid the amount of Rs.300/- to the accused officer towards National Savings Certificate bonds only. Therefore, it is contended that the trial Court is not justified in raising the presumption under Section 20 of the Act. To buttress his contentions, the learned counsel for the appellant/accused relied on a decision reported in SURAJ MAL V. THE STATE (DELHI ADMINISTRATION)[1] wherein it was held thus: “In our opinion, mere recovery of money divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under Section 342 has denied the recovery of the money and has stated that he had been falsely implicated……………… Thus, mere recovery by itself cannot prove the charge by the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money” The learned counsel further relied on a decision reported in State of Delhi Vs. Shri Ram Lohia[2] wherein the Apex Court held to the following effect: “The Additional Sessions Judge observed in his judgment with reference to Agarwal as follows: He, no doubt, in his further cross-examination, made certain damaging statements which would throw doubt on his previous statement but as the statement was made long after the first statement and at a time when Tara Chand accused had been discharged, it seems to me that this witness was won over and he has intentionally prevaricated under the influence of the accused whose ex-employee he was. This inference finds support from the fact that in his statement under Section 164 Cr.P.C. made on 20th October, 1951, he stated that he was still in the employment of Messrs. Iron and Hardware (India) Company, while has now asserted in Court that he had been already dismissed by Sri Ram accused because of Sri Ram’s differences with Tara Chand accused”. It is clear therefore that the learned Judge relied on some statement of Agarwal recorded under Section 164 Cr.P.C. The statement under Section 164 referred to was not specifically put to Agarwal even to contradict him. Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case. The Additional Sessions Judge therefore erred in law in using the statement of Agarwal under Section 164 to come to the conclusion that he had been won over. If that statement is excluded from consideration it is a matter of pure guess that Agarwal had been won over after his examination-in-chief was over. As the Additional Sessions Judge has erred in law, we are bound to consider the evidence of Agarwal and arrive at our own conclusion whether he is a reliable witness on whose evidence the respondent can be convicted. The various statements made by Agarwal in cross-examination before and after the framing of the charge clearly demonstrate him to be an utterly untrustworthy witness. We are satisfied that it would be highly dangerous to act upon his evidence. Without his evidence, the other evidence in the case does not establish that the respondent has committed the offence with which he was charged.” The learned counsel also brought to the notice of this Court that in view of the fact that PW1 – complainant did not support the prosecution case since he resiled from his statement recorded under Section 164 Cr.P.C. on 08.10.1993, the trial Court observed that it was necessary to initiate separate proceedings against PW1 for the offence of perjury. That from the very observation of the trial Court it appears that it eschewed the entire evidence of PW1 while coming to the conclusion in finding him guilty of the offences under Prevention of Corruption of Act as already stated. Consequently, it has got to be said that there would not be any basis for the prosecution case as Ex.P1 loses its authenticity since PW1 is the author thereof. On the contrary, the learned Special Public Prosecutor for A.C.B. Cases appearing for the respondent contended that it is evident from the testimony of PW1 that the accused officer has all the powers to inspect the fair price shops and he exercised those powers by inspecting his shop in the months of April, 1993 and May, 1993. Further, Ex.P1 – complainant is in his own hand-writing. He further submits that demand of bribe is not a sine qua non under Section 7 of the Prevention of Corruption Act, whereas, as far as provisions under Section 13(1)(d) of the Act are concerned, the prosecution has got to prove demand as well as acceptance of bribe by the accused. According to him, the material on record reveals payment of Rs.300/- by PW1 – complainant and receipt thereof by the accused officer. However, it has to be seen whether the same was paid to the accused officer by PW1 towards N.S.C. bonds or towards bribe. It is seriously disputed that the sanctity of Ex.D1 – circular alleged to have been issued by the Mandal Revenue Officer, Kurnool fixing targets for N.S.C. bonds by referring to further cross-examination of PW1 wherein PW1 admitted that it did not bear seal of M.R.O’s Office or Deputy Tahsildar of Kurnool, and that the date 16 in the date is added with pen. He contended that the Deputy Tahsildar was not authorized to deal with N.S.C. bonds, as such, it is hard to believe that such a Circular was issued to fair price shops dealers in the Kurnool Revenue Division. According to him, Ex.D1 – Circular was created for the purpose of defence. He further contended that in the absence of Ex.D1 – Circular, the trial Court could draw presumption under Section 20 of the Act and the same has been rightly drawn by it. He submitted that the very fact that the tainted amount of Rs.300/- was recovered from the accused officer proves the case of the prosecution in view of the phenolphthalein test proving positive in the absence of Ex.D1, and the prosecution case stands proved that the accused officer had received tainted amount of Rs.300/- as bribe other than legal remuneration. In support of his contention, the learned Special Public Prosecutor relied on a decision reported in the State Vs. A. Parthiban[3], wherein the Apex Court held to the following effect: “Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment than the Court could award to the person for anyone of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the Court wants to award only the minimum punishment, then the punishment would be one year.” Relying on the above decision, the learned Special Public Prosecutor submitted that the trial Court, after considering the entire material on record has reached the conclusion in finding the appellant- accused guilty of the offence alleged against him as stated supra. Heard the learned counsel for the appellant-accused, the learned Special Public Prosecutor for A.C.B. Cases appearing for the respondent and perused the material placed on record. It is pointed out by the learned counsel for the appellant that PW1 used to submit draft to the accused officer every month and he was preparing bills. Neither the accused admitted any ‘mamools’ from him nor the complainant mentioned in Ex.P1 – complaint dated 18.09.1993 about any demand by the accused for ‘mamools’. After the witness was given time by the trial Court to give fresh contents of Ex.P1 – complaint, he testified that the contents thereof were not true and that he scribed EX.P1 to the dictation of A.C.B. officials in A.C.B. office. It is further case of the appellant that the complainant came to his office and paid Rs.300/- towards National Saving Certificate bonds on the fateful day when he was about to leave the office. It is further case of the appellant/accused that submissions were recorded by the Judicial Magistrate of First Class, Kurnool, in Crl.M.P.No.2893 of 1994 on 08.12.1994 to the following effect: “That registered a case in Crime No.5 of 1993 under Section 7, 11, 13(2) r/w 13(1) (d) and Section 15 of the Prevention of Corruption Act, 1988, against N.Sunkanna, Deputy Tahsildar, Civil Supplies, Kurnool, allegedly taking a sum of Rs.300/- (Rupees three hundred only) as illegal gratification from the petitioner on 20.09.1993 on a complaint given by the petitioner. The said complaint and other submissions were obtained by the respondent under corroboration and undue influence and threats. The complaint given by the petitioner is not voluntarily and true. The said petitioner intends to give a true, correct and voluntary statement of the facts connected with the said case. Investigation is pending in the case. It is therefore, prayed that the Hon’ble Court may be pleased to record the submissions of the petitioner under Section 164 Cr.P.C. in regard to Crime No.5 of 1993. The order of the learned Magistrate is as follows: “On 08.12.1994, Sworn 164 Cr.P.C. statement of petitioner Sri K.Sudhakar Reddy, recorded proceedings commenced at 3.00 P.M. and concluded by 3.25 P.M. Hence petition closed”. From the facts and circumstances narrated above, it appears to be true as contended by the appellant/accused that the prosecution failed to prove that the material is sufficient to warrant conviction of the appellant/accused. Thus, the prosecution seems to have failed to bring home the guilt of the accused beyond all reasonable doubts. That the trial Court appears to have been obsessed by the fact of the pre and post trap proceedings, during the course of which, the amount of Rs.300/- recovered from the left side shirt pocket of the appellant/accused proved the guilt of the appellant/accused due to the result of the chemical re-action as Phenolphthalein test proved positive, whereas the entire material on record is, perhaps against the prosecution case. In any case, it is the contention of the appellant/accused that such a view cannot be sustained in view of the fact that the documents on which the trial court relied mainly i.e. Ex.P1 complaint and 164 Cr.P.C. Statement of PW-1 on 08.10.1993 etc. do not constitute substantive evidence. The contents of Ex.P1 - complaint seem that they are not supported by the evidence of PW-1, as such it looses its sanctity. Ex.P1 is not substantive. It is neither the evidence nor the statement recorded under 164 Cr.P.C. Obviously, those documents are not corroborated by the evidence of any of the independent witnesses. In the circumstances, it appears probably that it is denied by PW-8 Investigating Officer that a false case is foisted against the appellant/accused by the A.C.B. at the behest of the M.R.O., Kurnool under whom the appellant/accused was working at the relevant time. Even though the learned counsel for the appellant has argued at length on various aspects of the matter to the effect that the accused officer did not demand money form the complainant and the alleged amount of Rs.300/- was paid by the complainant towards National Saving Certificates in view of Ex.D1-Circular alleged to have been issued by the accused officer, there is any amount of controversy with regard to the validity and genuineness of the so-called document Ex.D1 – Circular inasmuch as it is conspicuous that it does not bear the seal of Mandal Revenue Office. Having regard to the facts and circumstances of the case, it is to be observed that it is Ex.D1 – Circular that makes all the difference. If it is accepted, the prosecution has no case, however, it cannot be, simply because it manifestly appears to have been created by the appellant-accused, in view of his admissions in the cross-examination as already stated herein above. Further, in view of the observations made by the trial Court, the appellant-accused should be prosecuted for perjury in this regard. However, it is not known whether the prosecution has taken any steps. Further the judgments relied on by the learned counsel for the appellant have no application to the facts of the case on hand. That apart, I find any amount of force in the contentions put forth by the learned Special Public Prosecutor and, are therefore, sustainable. Therefore, the impugned judgment does not warrant any interference from this Court, as no error, irregularity or illegality appears to have been committed by the trial Court. Hence, the Criminal Appeal fails and the same is accordingly dismissed confirming the judgment, dated 06.01.2006 delivered in C.C. No. 5 of 1995 by the Additional Special Judge for S.P.E. & A.C.B. Cases, City Civil Court, Hyderabad. _________________ B.N. RAO NALLA, J 2nd July, 2010 Note: L.R. Copy to be marked. B/o bcj [1] AIR 1979 SC 1408 [2] AIR 1960 SC 490 [3] AIR 2007 SC 51