THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.414 OF 2002. DATED: 17-08-2009. Between: D.Ramachandra Reddy. … Appellant-accused and State of A.P. represented by DSP, ACB, Anantapur Range, through Spl. P.P. for ACB cases, High Court, Hyderabad. … Respondent/complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.414 OF 2002. JUDGMENT: This Criminal Appeal by the appellant-sole accused under Section 374 (2) Cr.P.C., is directed against the judgment, dated 01-04-2002, in C.C.No.6 of 1998, on the file of the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, whereunder and whereby the appellant was convicted of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of three months under each count and both the sentences were ordered to be run concurrently. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The appellant-accused officer was working as Mandal Praja Parishad Development Officer (for short ‘MPDO’), Tadipatri, Anantapur District. One Challa Ramgopal (P.W.1), Secondary Grade Teacher, Allur village approached the accused officer on 15-04-1996 and submitted Ex.P2 application for re-fixation of his pay in the scale of Rs.1010/- from the date of acquiring B.Ed., degree i.e., from 13-03-1988 instead of 01-09-1989. Accordingly, the accused officer issued proceedings under Ex.P3, dated 14-05- 1996. Relying on that additional grant was released by Local Fund Audit Office at Anantapur for payment of fixation arrears. P.W.1 met the accused officer several times for issuance of re-fixation of arrears, but the accused officer is alleged to have postponed the matter. On 23-08-1996 when P.W.1 approached him finally, the accused officer demanded illegal gratification of Rs.1,000/-. When P.W.1 expressed his inability, the accused officer reduced it to Rs.700/-. As P.W.1 was not willing to pay the bribe amount, he went to Deputy Superintendent of Police (P.W.6), ACB, Anantapur and lodged Ex.P4-complaint. Basing on which, police registered a case and arranged trap on 26-08-1996. P.W.6 secured two mediators, left Anantapur and reached H.L.C. guesthouse at Tadipatri at 2.00 P.M. There pre- trap proceedings were conducted and Ex.P7-panchanama was drafted. P.W.6 instructed P.W.1 to pay the amount only when the accused officer demanded. Trap party left the guesthouse and reached the office of the accused officer. P.W.1 went into the office and found the accused officer talking with five persons. After they left, P.W.1 entered the chamber of the accused officer and requested him to pass his re-fixation bill. Then the accused officer questioned whether he brought the amount. P.W.1 gave the amount, which the accused officer accepted and kept it in his money purse, which was in his shirt pocket. It was then 3.55 P.M. P.W.1 came out and gave pre-arranged signal. Then P.W.6 entered the chambers of the accused officer along with trap party and disclosed his identity and also identity of the mediators. He performed phenolphthalein test on both hand fingers. Right hand fingers proved positive. When he asked the accused officer to produce the amount received from P.W.1, the accused officer took out money purse from left pocket of his shirt and placed it on the table. One of the mediators picked up the purse and removed one bunch containing Rs.700/-. Second wad of notes was also removed and they were handed over to the accused officer as they are his personal amount. The money purse was also having official receipt for Rs.20,000/- issued by one T.Nagaiah, Junior Assistant on 22-08-1996. When P.W.6 asked for explanation, accused officer denied to have demanded any bribe from P.W.1. The accused officer stated that P.W.1 repaid the amount, which he had taken from him as loan during previous month. Then P.W.6 examined the staff who stated that they did not witness anything. Thereafter, post-trap panchanama was prepared under Ex.P8. On the next day, P.W.1 was examined and his statement under Section 164 Cr.P.C. was recorded by the Magistrate under Ex.P5. After obtaining sanction, charge sheet was filed. 3. The learned Special Judge framed the following charges against the accused: Firstly: That you, being a public servant working as Mandal Parishad Development Officer, Tadipatri Mandal, Anantapur District on or about 23-08-1996 demanded Rs.1,000/- from Challa Ramgopal ,Secondary Grade Teacher, Allur village as illegal gratification other than legal remuneration to do the official favour viz., to pass the re-fixation arrears bill and on his expressing inability to pay the said amount, you reduced the same to Rs.700/- and on 26-08-1996 in your office chambers in pursuance of the said demand, you accepted the sum of Rs.700/- from the said Challa Ramgopal as illegal gratification other than legal remuneration as a motive or reward for doing an official favour viz., to pass his pay re-fixation arrears bill and thereby committed an offence punishable under Section 7 of the P.C.Act 1988. Secondly: That you, being a public servant working as Mandal Parishad Development Officer, Tadipatri Mandal, Anantapur District on the date and place as mentioned in charge No.1, by corrupt or illegal means or otherwise abusing hour position as such public servant, demanded and obtained for yourself a pecuniary advantage of Rs.700/- in pursuance of your earlier demand on 23-08-1996 from Challa Ramgopal for the above said purpose and thereby committed an offence punishable under Section 13(1)(d) r/w 13(2) of the P.C.Act, 1988. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 6 and got marked Exs.P1 to P19 besides case property, M.Os.1 to 11. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, D.Ws. 1 to 4 were examined and Exs.D1 to D8 were marked. 6. The trial Court, accepting the evidence of P.W.1 with regard to demand and also the evidence of P.Ws. 2 and 6 with regard to recovery of tainted currency notes from the possession of the accused officer, found the accused officer guilty of the offences with which he was charged and accordingly, convicted and sentenced him as above. Challenging the same, the accused officer preferred the present appeal. 7. Mr.T.Bali Reddy, learned senior counsel appearing for the appellant-accused officer contended that there was no official favour to be shown to P.W.1 was pending with the accused officer as on the date of the trap because the note file relating to the fixation of pay and drawing of arrears have not been put up before the accused officer by the concerned staff, that except the solitary testimony of P.W.1, there is no other evidence to show that the accused officer demanded bribe amount of Rs.700/-for showing favour to P.W.1, that Exs.D4 and D5 would clearly go to show that on 23-08-1996 the accused officer was not present in the office at Tadipatri and he went to Peddapappur Mandal on some other duty, that therefore, the evidence of P.W.1 that the accused officer demanded in the first instance Rs.1,000/- and later agreed to receive Rs.700/- on 23-08-1996 appears to be false and incorrect and that if Exs.D4 and D5 are to be accepted, the evidence of P.W.1 has to be disbelieved. He further contended that prior to the trap, the accused officer along with teachers including P.W.1 went on tour and Ex.D3 contain the tour programme and at that time as P.W.1 was short of money, he requested the accused officer to lend Rs.700/- and accordingly, the accused officer lent the amount in the presence of D.Ws. 1 and 2, that to discharge the said loan, P.W.1 paid the amount on 26-08-1996 and the accused officer received the amount towards discharge of the loan amount, but not as illegal gratification for showing any favour, that the spontaneous explanation given by the accused officer would also go to show that he received the amount towards the discharge of the loan amount, that therefore, prosecution failed to establish the guilt of the accused officer beyond all reasonable doubt and hence, he prays to set aside the convictions and sentences recorded against the appellant-accused officer. 8. On the other hand, Mr.V.Ravi Kiran Rao, learned standing counsel appearing for ACB cases contended that it is the accused officer who issued Ex.P3-pay proceedings and in pursuance of the said proceedings, the Audit Department sent the amount to the School Department, that the accused officer knows about the payment of certain amount to P.W.1 after re-fixation of pay and in such a situation, there is every possibility for the accused officer to demand P.W.1 certain amount for signing the bills, that it is the accused officer who has to sign the bills and disburse the amount, by way of cheque and that is the reason why, he has not signed on the note prepared for passing of the bills, that therefore, there was official favour to be shown to P.W.1 was pending with him, that P.W.1 has categorically stated that on 23-08-1996 the accused officer demanded Rs.1000/- towards bribe for passing the bill and later it was reduced to Rs.700/-, that Exs.D4 ad D5 cannot be relied upon as they came into existence after the trap, that there is no other reason for P.W.1 to foist a false case against the accused officer, that the tainted currency notes have been seized from the possession of the accused officer, that when the accused officer rinsed his right hand fingers in Sodium Carbonate Solution, the solution turned into pink colour, which shows that he received the amount towards bribe, that the accused officer being a superior officer to P.W.1, P.W.1 would not have taken any amount from him in the tour, that as there was more than forty teachers on tour, P.W.1 would have requested his colleagues in stead of requesting the accused officer to lend the amount as there was shortage of amount in the tour, that the spontaneous explanation given by the accused officer cannot be accepted as there was no specific plea that P.W.1 has taken an amount of Rs.700/- during the tour as a loan, that the evidence of P.Ws. 2 and 6 would clearly go to show that tainted currency notes have been seized from the possession of the accused officer when he took out the same from his shirt pocket and handed over the same to the Trap Laying Officer, that the names of D.Ws. 1 and 2 have not been specifically stated during the trial or when the accused officer put up his written statement to infer that the accused officer paid the amount of Rs.700/- in their presence to P.W.1 while on tour, that the trial Court after elaborate consideration of evidence on record, rightly convicted and sentenced the accused officer and hence, absolutely there are no grounds to interfere with the same. 9. Now the point that arises for consideration is whether the prosecution has proved its case against the appellant-accused officer of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 10. Section 7 of the Act reads thus: “Public servant taking gratification other than legal remuneration in respect of an official act: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise o his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disserve to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government company referred to in clause (c) of Section 2 or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.” Section 13 (1) (d) of the Act reads thus: “13. Criminal misconduct by a Public servant: (1) A public servant is said to commit the offence of criminal misconduct- (a) … (b)… (c)… (d) if he – (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;” Section 13 (2) of the Act reads thus: “Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine” 11. Once the prosecution established its case that the accused officer received certain amount as motive or reward for showing any official favour, then the burden shifts to the accused officer under Section 20 of the Act. There cannot be any dispute that the accused officer can discharge the burden placed on him in view of Section 20 of the Act by adducing evidence or showing in the evidence of prosecution witnesses by preponderance of probability. The accused officer was working as M.P.D.O., Tadipatri at the relevant point of time of trap. It is not in dispute that P.W.1 worked as Teacher in M.P. Elementary School, Allur. It is also not in dispute that P.W.1, accused officer and several teachers went to Tamilnadu on educational tour in the month of July, 1996. It is also not in dispute that Ex.P3 along with claim statement with regard to the payment of arrears consequent on the fixation of pay was received by the Assistant Audit Officer, Anantapur from the office of M.P.D.O. Tadipatri. The claim under Ex.P3 was admitted by the audit office, which contained the signature of officer D.Varalakshmi Prasad. The signature on the admission of claim form was identified by P.W.4, who was acquaintance with the signature of Varalakshmi Prasad. After admitting the claim, they issue letter of authority to the Sub Treasury officer, Tadipatri, who in turn will adjust the amount in Elementary funds of Tadipatri. Thereafter, the M.P.D.O. will issue the cheque. P.W.4 admitted that the claim of P.W.1 with regard to revised pay and payment made to him was under objection. He admitted that fixation of scale of pay to the teachers like P.W.1 would be done by the Chief Executive Officer, Zilla Parishad, but not by the M.P.D.O. The same was reflected in Ex.D7, which is the audit objection raised by the audit with regard to fixation of pay of P.W.1. No doubt, the pay fixation has to be done by the Chief Executive Officer of Zilla Parishad, but as seen from the evidence of P.Ws. 1 and 3, the accused officer issued sanction proceedings under Ex.P3. In pursuance thereof, the pay of P.W.1 has been fixed and what is the amount P.W.1 gets towards arrears of pay fixation was mentioned in Ex.P12. 12. According to P.W.3, the copy of proceedings under Ex.P3 has not been sent to P.W.1 directly, but on 07-06-1996, copy of Ex.P3 was served personally on P.W.1 and he acknowledged the receipt of copy. It is not the case of the accused officer that Ex.P3 was prepared without his knowledge. According to the evidence of P.W.3, Ex.P3-note was put up by one Chinna Ranga Reddy and the same was approved by the accused officer on 14-05-1996. No doubt, it is admitted by P.W.3 that on 14-05-1996, there was no demand by the accused officer to P.W.1 for approval, but it is the specific case of the prosecution that on 15-04-1996, P.W.1 made an application to M.P.D.O., Tadipatri with a request to revise the pay under Ex.P2-application. P.W.1 met the accused officer on 10-05-1996 and enquired him about the re- fixation of his salary. Then the accused officer told him that earlier application submitted by him was not correctly drafted and so asked him to put up another application. Accordingly, P.W.1 gave Ex.P2-application on 10-05-1996. Thereafter, the accused officer issued Ex.P3-proceedings duly revising the pay. The accused officer also addressed a letter to the Local Fund Audit Office for release of necessary funds for paying the arrears. Thereafter, about two or three times, P.W.1 enquired the accused officer about his arrears and finally on 23-08-1996 when he requested the accused officer to pay the arrears by passing necessary bills, the accused stated that unless he pays Rs.1,000/- to him, he will not pass the bills. P.W.1 stated that he was legally entitled to draw that amount and therefore, he could not pay. Then the accused officer reduced the amount to Rs.700/- and firmly stated that unless he pays that amount, he will not pass the bills. Then P.W.1 lodged Ex.P4-complaint with P.W.6 on 25-08-1996. It is suggested to P.W.1 that himself and his clerk Ranga Reddy by colluding with each other made the accused officer to pass Ex.P3- proceedings, but the same was denied. It is also suggested to him that the letter of the Local Fund Audit Office authorizing the accused officer to withdraw the arrears was not received in the office of the accused officer, but the same was denied. It is further suggested to him that the concerned clerk informed him that as the accused officer contacted Superintendent, Zilla Parishad, he bore grudge against the accused officer and that is the reason why a false complaint Ex.P4 was lodged against the accused officer, but the same was also denied. Therefore, from the entire evidence of P.W.1, there is absolutely no reason for P.W.1 to foist a false case of this nature against the accused officer. He has no animacity or grouse against the accused officer. There were no ill-feelings between them prior to the incident. If really the accused officer contacted the Superintendent of Zilla Parishad Accounts Section and he was duly informed by the Zilla Parishad office that he has no authority to re-fix salaries and Chief Executive Officer has to issue the proceedings, certainly he would have re-called the proceedings issued under Ex.P3. Similarly, there was no material to show that the accused officer has taken any action against Ranga Reddy who in collusion with P.W.1 made the accused officer to pass Ex.P3-proceedings. Though the accused officer is not competent authority to re-fix the pay of any teacher working in the Mandal, he issued Ex.P3-proceedings re-fixing the pay of P.W.1 w.e.f. 13-05- 1988. 13. The evidence of P.W.3 would go to show that he was working as Senior Assistant in the office of M.P.D.O. Tadipatri. His evidence is very clear that the note file under Ex.P12 contains the signature of late Ranga Reddy and Ex.P3 is the sanction proceedings issued by the accused officer. He also stated that Ex.P3 along with claim statement was addressed to the Local Fund Audit Office for pay fixation of arrears. The audit officer released the funds. Afterwards the bill was prepared by P.W.1 and presented to his office for payment. The bill was passed on 02-07- 1996 and the proceedings were prepared for issuance of a cheque, but not signed by the accused officer. 14. Learned counsel appearing for the accused officer relied on the admission made by P.W.3 in the cross-examination that unless a letter of authority received from the Local Fund Audit Office, question of drawing the amount and paying the same to P.W.1 does not arise and that after 14-05-1996, Ex.P12 file was not put up before the accused officer and therefore, question of the accused officer demanding any bribe for passing the bills does not arise. It is not in dispute that the accused officer was the disbursing officer for payment with regard to fixation of the salaries. P.W.4 who is the Assistant Audit Officer stated that after admitting the claim, they issue letter of authority to the Sub Treasury officer, Tadipatri, who in turn will adjust the amount in Elementary funds of Tadipatri. Ex.P3 contains the signature of audit officer and the claim was admitted by the audit officer. 15. It is further contended by the learned counsel appearing for the accused officer that on 23-08-1996, the accused officer went to Peddapappur Mandal in connection with his official work and Ex.D4-monthly tour register of the accused officer along with covering letter would go to show that on 23-08-1996 from 7 A.M. to 6 P.M., the accused officer was not present in the office at Tadipatri and therefore, question of P.W.1 meeting the accused officer is false. Admittedly, the monthly tour diaries of accused officer have been submitted for two months that too after trap proceedings. Therefore, by the date of submission of tour diaries as in Ex.D4 to the Chief Executive officer, the accused officer must be knowing that P.W.1 met him on 23-08-1996, and demanded Rs.1,000/- towards bribe for passing the bills. Therefore, to discredit that statement, the possibility of preparing Ex.D4 duly showing the presence at Peddapappur Mandal, which is located at a distance of 38 K.Ms. from Tadipatri to suit his case, cannot be ruled out. Similarly, Ex.D5-attendance register, which contains the signature of accused officer on 23-08- 1996 was produced subsequent to the trap. The same was not seized at the time of trap proceedings or immediately thereafter. When he went to Peddapappur Mandal with regard to some other official duties, there is no need for him to sign in the attendance register-Ex.D5. The attendance register would be maintained at the office in which the accused officer was working, but not in the office where an officer went on inspection or for some other purpose. Therefore, no reliance can be placed on these two documents so as to infer that the accused officer was not present at Tadipatri on 23-08-1996 from 7.00 A.M. to 6.00 P.M. 16. D.W.3 was examined on behalf of the accused officer to show that the accused officer was not present at Tadipatri on 23- 08-1996. He stated that on 23-08-1996 when he went to the office of M.P.D.O. to meet the accused officer in connection with widow pension, the accused officer was not present and on enquiry, he came to know that the accused officer went to Peddapappur Mandal. He has not filed any record to show that he went to the office on 23-08-1996 in connection with pension relating to his widow daughter. He got acquaintance with the accused officer when he came to Tadipatri Mandal. Therefore, much reliance cannot be given to the evidence of D.W.3. So, from the evidence on record, it is clear that re-fixation of pay of P.W.1 was done by the accused officer though he is not competent to do it. The claim form along with Ex.P2 has been submitted to the Local Fund Audit Office who in turn released the funds. Though the claim form along with the letter of advice given by the audit officer has not been placed before the accused officer, he was having knowledge about passing of Ex.P3-proceedings and in pursuance of Ex.P3, P.W.1 would have to receive some amount for re-fixation of pay towards arrears and as a matter of fact, the claim of P.W.1 along with Ex.P3-proceedings have been admitted by the Local Fund Audit Office and necessary funds have been released to the Sub Treasury under the head Elementary