* HON’BLE SRI JUSTICE B.N.RAO NALLA + Criminal Appeal No.1261 of 2003 % Dated 03.03.2011 B e t w e e n: # Sirlapu Neelakantam ACTO, Phoolbagh Area, Vizianagaram Appellant/Accused A n d $ State rep. by Dy.Superintendent of Police, ACB, Vizianagaram Range, Vizianagaram Respondent/Complainant ! Counsel for the Appellant: Sri C.Praveen Kumar ^ Counsel for Respondent. : Special Public Prosecutor < GIST : > HEAD NOTE : ? Cases referred : [1] AIR 1987 SC 689 2 2001 Crl.L.J. 515 HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Appeal No.1261 of 2003 JUDGMENT: This Criminal Appeal is filed by the accused officer against the judgment dated 25.11.2003 in C.C.No.48 of 2000 on the file of the III Additional District and Sessions Judge-cum- Special Judge for A.C.B. Cases, Visakhapatnam, whereby and whereunder he was found guilty of the offences punishable under Sections 7 and 13(2) read with 13(1) (d) of the Prevention of Corruption Act,1988 (for short’ the Act’), and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1000/-, in default, simple imprisonment for one month for the offence under Section 7 of the Act and also sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/-, in default, simple imprisonment for one month for the offence under Section 13(2) read with 13(1)(d) of the Act. Both the sentences were ordered to run concurrently. 2. The facts in brief are that the appellant-accused was Assistant Commercial Tax Officer, Phoolbagh area of Vizianagaram and that PW.1-defacto complainant is proprietor of Durga Ghee Stores, V.T.Agraharam, Vizianagaram. He had paid entire commercial sales tax for the year 1993-1994 and part of the tax for the year 1994-95; that on 21.12.1994, he went to the office of the DCTO Vizianagaram to pay tax and that the appellant-accused officer demanded quarterly Mamool of Rs.1,000/- for himself and Rs.1,500/- for the DCTO. However, PW.1 expressed his inability; that on 27.12.1994 the appellant-accused officer visited PW.1 at his shop and reiterated his earlier demand; that PW.1 also reiterated his inability; that PW.2 was the witness thereof; that on the same day, PW.1 visited the appellant-accused officer in his office and requested to scale down the bribe amount but in vain; that thereafter, on 28.12.1994 at about 11.00 am., PW.1 submitted Ex.P.1-written complaint to PW.7- Deputy Superintendent of Police, ACB, Vizianagaram who after discreet enquiries and basing on Ex.P.1-complaint, registered a crime No.12/RC.ACB.VZM/94 under Sections 7,11 and 13 (2) read with 13(1) (d) of the Act and after securing presence of mediators, PW.6 and two others, successfully laid a trap on 29.12.1994 and that DCTO was not arrayed as accused since no case was made out against him though Ex.P.1-complaint was aimed against the appellant-accused officer as well as DCTO and as such, charge sheet was laid against the appellant- accused officer only after obtaining sanction orders- Ex.P.3 in C.C.No.48 of 2000. 3. The prosecution examined PWs 1 to 7 and got marked Exs.P.1 to P.12 besides marking M.Os 1 to 6 in support of its case. 4. Taking into consideration the evidence of PW.1 who is the defacto complainant, PW.2 who is the clerk of PW.1 and who is also accompanying witness, PW.6- mediator, PW.7- Investigating Officer and Exs.P.5 and P.7- pre and post trap proceedings, the trial court found the appellant-accused officer guilty of charges and convicted and sentenced him as stated in Para No.1 supra, while ordering return of the tainted cash amount of Rs.2,500/- (MO5) to PW.1. However, aggrieved by the said conviction and sentence, the accused officer preferred this appeal assailing the correctness or otherwise of the order. 5. It is the case of the appellant-accused officer to a question posed by PW.7-D.S.P as to whether he had accepted any money from any person just prior to the arrival of A.C.B. raid party, he stated that he had accepted Rs.2,500/- from PW.1 towards payment of tax due to the commercial tax department for a period of 1994-95. He also stated as to what transpired between him and PW.1 as to PW.1 paying him part or instalment payment towards tax on 18.12.1994, 21.12.1994 etc. for the year 1994-95 and that the amount of Rs.2,500/- was also due under regular tax for the said period i.e. 1994-95. Since PW.1 is retail dealer and his annual turn over was less than two lakhs, he could pay the tax in instalments, is the defence proper and the same goes to prove his innocence. 6. It is further case of the appellant-accused officer that the case of the prosecution as per Ex.P.1 complaint is PW.1 had paid his sales tax up to date and there were no dues or arrears of sales tax as on the date of Ex.P.1, but PW.1 has stated in his cross examination that PW.7-DSP did not ask him to bring the receipts to show that he had already paid the tax in the office of ACTO and the same goes to falsify the case of the prosecution that PW.1 had paid sales tax up to date and there were dues or arrears otherwise; that the DSP ought to have asked PW.1 to produce the receipts of sales tax payment and PW.1 could have shown the same; that non production of receipts of payment of sales tax probablizes the case of the appellant-accused officer and that PW.1 was paying sales tax in instalments for the year 1994-95. Therefore, the amount of Rs.2,500/- paid by PW.1 to the appellant- accused officer was towards part of sales tax dues for the said year. It is also the case of the appellant-accused officer that the evidence of PW.5, who was formerly working as retired ACTO, testified that on being asked by PW.7-DSP in Feburary,1995 to calculate the tax liability of PW.1, he worked out the tax payable by PW.1 roughly at Rs.3,000/- and odd up to December,1994, of course, it was based on the stock book and the same probablizes his case. The supporting help is also sought from the cross examination of PW.1, wherein he has stated in clear terms that three days prior to 21.12.1994 he was informed by the appellant-accused officer the amount payable by him towards the tax and accordingly he paid it on 21.12.1994 which lends credence to the case of the appellant-accused officer. That on his issuing notices to PW.1, he had paid certain amounts towards part payment of sales tax on 18.12.94, 21.12.1994 and also on 27.12.1994 . Therefore, it is the case of the appellant-accused officer that the amount of Rs.2,500/- received by him from PW.1 is not towards illegal gratification but was towards part payment of sales tax . 7. It is further case of the appellant-accused officer that 27.12.1994 was declared as public holiday due to the demise of former President of India Sri Gnani Jail Singh and as such, he went to his native place Srikakulam and the same falsifies the case of the prosecution that on 29.12.1994, the appellant-accused officer was in office and PW.1 visited him in his office during the early hours and paid him Rs.2,500/- towards illegal gratification. It is apparent from the cross-examination of PW.1 wherein he has stated that he had written Ex.P.1-complaint on 27.12.1994 at his residence at about 10.00 a.m. and submitted the same to PW.7-DSP on the same date at about 11.00 a.m and that the accused officer visited him at his shop on the same day at about 1300 hours. In the circumstances, the improbability strikes common sense that when the appellant-accused officer visited PW.1 at his shop at 1.00 p.m. on 27.12.1994 how could PW.1 prepared Ex.P.1-complaint on the same day at about 10.00 a.m. and submit the same to PW.7- DSP at about 11.00 a.m., which is impossible to happen. Therefore, the case of the prosecution suffers from improbabilities. The case of the prosecution is that PW.1 went to the office of the accused officer along with PW.2 on the fateful day at 7.20 a.m. and that no staff members and Attenders were present in the office and that he did not observe whether the appellant-accused officer was wearing lungi or a pant at that time. That even he did not observe whether he was having any towel on his shoulders at that time. It is hard to believe that an officer of cadre of ACTO would attend office around 7.00 a.m, even if PW.1 had ,in fact, gone to the office of the appellant-accused officer, he could have found him whether he was wearing a lungi or a pant. Therefore, this part of evidence of PW.1 also tends to improbablize the case of the prosecution. 27-12-1994 happened to be a public holiday on account of the death of Sri Gnani Jail Singh, the former President of India; that the appellant- accused officer had gone to his native place Srikakulam. It is to be found in the evidence of PW.4, who worked as Senior Assistant and retired in the office of DCTO, Vizianagaram that the appellant accused officer used to go to Srikakulam during holidays since his family was staying at Srikakulam. Therefore, the case of the prosecution that the appellant- accused officer went to the shop of PW.1 and demanded illegal gratification is falsified. Further PW.1 has stated in his cross examination that he directed PW.2 while they were in the office of the appellant-accused officer to go outside and give the signal to ACB officials, whereas he has stated in Ex.P.2-statement made by him before J. M. F. C. Cheepurupalli that he himself went out and wiped out his face with a kerchief and gave signal to ACB officials which amounts to contradiction. He has contradicted himself in saying so. Therefore, it is contended on behalf of the appellant-accused officer that PW.1 is not a trustworthy person. 8. It is further the case of the appellant-accused officer that though a suggestion was given to PW.1 during the course of his cross-examination that the appellant- accused officer i.e., ACTO. had issued notice to him on 29-11-1994 to pay tax and also to produce account books for the purpose of calculating his tax liability, the same was answered by PW.1 negatively. However, it is to be found in the evidence of PW.7- Investigating Officer that he had seized the records from the accused officer which included Ex.P.9- receipt book on the fateful day i.e., on 29-12-1994. Further, it is to be found in the cross-examination of PW.7- Investigating Officer that the appellant-accused officer had issued notice to PW.1 on 29-11-1994 and he had collected two more files other than those files filed into the court. That the said two files were pertaining to the assessment of tax payable by PW.1 for the year 1993-94 and 1994-95 and the said two files were not submitted before the court. Here it is canvassed on behalf of the appellant-accused officer that PW.1 has denied that any notice was issued to him by the appellant-accused officer and the same is contradictory to the evidence of PW.7-Investigating Officer. Further, PW.1 has denied having produced any books of accounts before the appellant-accused Officer. Therefore, it is contended that since the appellant-accused officer was issuing notices to PW.1 frequently calling for the account books and also to pay the tax, PW.1 developed grudge against the appellant-accused officer and preferred a false complaint Ex.P-1 before PW.7-Investigating Officer. It is further to be found in the evidence of PW.7-Investigating Officer that he asked PW.5 to calculate the tax to be paid by PW.1 by showing bill books and stock registers pertaining to the shop of PW.1 and he worked out the said tax payable by PW.1 at Rs.3,461.70 paise. Therefore, it is contended that the evidence of PW.1 that he was not in arrears of tax and that he had paid the tax up to date is absolutely false. It is strongly contended on behalf of the appellant- accused officer that the trial court had erred in relying on the evidence of PW.1. PW.1 is proved to be not trustworthy by the evidence of PWs 5 and 7. Therefore the trial court ought not to have relied on the evidence of PW.1 who is the de-facto complainant, PW.6 who is mediator to Exs.P-5 and P-7- pre and post trap panchanamas and PW.7 who is the Investigating Officer and that the evidence of PW.2 is not material since he was a clerk of PW.1 and he happened to be accompanied PW.1 on the fateful day and he is an interested witness. It is also the case of the appellant-accused officer that though PW.1 in Ex.P.1 has stated that the appellant- accused officer had asked quarterly mamool at Rs.1,000/- for himself and Rs.1,500/- to DCTO, however in his evidence he denied having been made any complaint against DCTO. If at all the appellant-accused officer had demanded such a mamool, PW.1 could have reported the same during the course of his evidence and as such it is contended the same goes to show that the appellant-accused officer never demanded any illegal gratification from PW.1 either for himself or for DCTO. That, it is only because he developed grudge against the appellant-accused officer since he was issuing notices frequently to PW.1 for payment of tax and to produce all account books and as such PW.1 had filed a false complaint Ex.P.1 against the appellant- accused officer. It is further canvassed on behalf of the appellant-accused officer that as per the evidence of PW.5, the total monthly tax liability of PW.1 is at Rs.368/- and the same comes to Rs.4,416/- per year and whereas the quarterly mamool is stated to be Rs.2,500/- and it becomes to Rs.10,000/- per year and thus the mamool exceeds the tax liability and that no reasonable and prudent man would like to pay such mamool. 9. The appellant-accused officer relied on a decision in Balakishna Sayal Appellant Vs. State of Punjab Respondent[1] wherein it was held to the effect that “where the alleged bribe amount is near about equal to the amount that complainant would be required to pay legally cannot be believed and the accused is entitled to benefit of doubt.” It is contended that since in the case on hand the bribe amount is more than total of the tax liability of PW.1, the case of the prosecution cannot has legs to stand. 10. The learned Special Public Prosecutor submits that the appellant accused officer was resident of Srikakulam town. He was residing in the office of DCTO, Vizianagaram. There is no material on record to show that on public holidays, he used to go to his native place Srikakulam and that on the night of 26-12-1994 the appellant- accused officer went to Srikakulam since 27-12-1994 happened to be a public holiday. As such though the appellant-accused officer has taken the defence that he is being away from the Vizianagaram on the date of demand, it is not proved by any evidence. He also further submits that the plea of appellant-accused officer being away from Vizianagaram was not taken by the appellant-accused officer when his statement was recorded by PW.7-Investigating Officer under Ex.P-7 post trap panchanama. Therefore, he contends that the plea of appellant-accused officer is an after-thought and invented as a tool of defence to escape from the clutches of law. He also contends that the plea of the appellant-accused officer that he had received the tainted amount towards payment of arrears of tax from PW.1 is not sustainable since PW.1 was not in arrears of tax by then and the said plea does not find place in the evidence of any of the prosecution witnesses. He further submits that PW.2 who was examined on 10-06-2003 in the court has supported the evidence of PW.1 in material particulars as to demand and acceptance of the bribe amount by the appellant-accused officer and that he was not under the employment of PW.1 by then. Therefore, he cannot be said to be an interested witness in corroborating the evidence of PW.1. He further contends that no suggestion was put to any of the prosecution witnesses as to the plea of appellant accused officer that he had received the tainted amount towards payment of arrears of tax from PW.1. Therefore, he contends that the trial court was not wrong in rejecting such a plea. The learned special public prosecutor contends that the prosecution had succeeded in proving the demand and acceptance of illegal gratification by the appellant-accused officer. Therefore, he contends that the demand and acceptance stands proved. He further contends when there is demand and acceptance the presumption under Section 2-u of the Act comes into play. 11. The learned special public prosecutor relied upon a decision in M. Narasingarao Vs. State of Andhra Pradesh[2] wherein it was held to the effect that “the only condition for drawing a legal presumption under Section 20 of the Act is that during trial it should be proved that the accused had accepted or agreed to accept any gratification”. 12 Lastly the learned Special Public Prosecutor submits that the trial court after considering the entire material on record has rightly convicted and sentenced the appellant-accused officer for the offences punishable under Sections 7 and 13 (2) r/w 13 (1) (d) of the Act and the same does not in any way warrant interference by this court. Hence, the appeal may be dismissed. 13. The findings of the trial court are that the evidence of PWs 1 and 2 is cogent and trustworthy and the same is corroborated by the evidence of PWs 6 and 7, and M.O.3, and as such the accused officer demanded and accepted M.O.5 from PW.1 as illegal gratification in exercise of his official functions. 14. The contention of the accused officer is that as he made earlier demand for payment of arrears of sales tax, PW.1 bore grudge against him and lodged a complaint. Except this, no other reason was assigned by the accused officer to give false complaint by PW.1 against him. Further, the evidence of PW.5 goes to show that there were no previous arrears of tax. Therefore, the contention of the accused officer that PW.1 bore grudge against him is not correct. The testimony of PW.2 cannot be brushed aside since at the time of giving evidence he was not working under PW.1. The contention of the accused officer is that he did not visit the shop of PW.1 on 27.12.1994 since that day was declared as holiday in view of the demise of former President of India Sri Gnani Jail Singh. But there is no specific evidence showing that on 27.12.1994, the accused officer went to Srikakulam. It has to be seen that in pursuance of Ex.P.1, trap was arranged by PW.7-DSP along with PW.6 and another - mediators and the trap was successfully laid in the office of the accused officer on 29.12.1994 and the tainted currency notes of Rs.2,500/- (M.O.5) was produced by the accused officer from the table drawer and the chemical test to the right hand fingers of the accused officer resulted positive. The evidence of PW.1 is that he paid Rs.2500/- to the accused officer with his right hand and the accused officer took the said amount with his right hand and kept it in his right side table drawer. Further chemical test was conducted on both hand fingers of the accused officer and that the test to the right hand fingers of the accused officer resulted positive. (M.O.3). The evidence of PW6- mediator and PW.7-DSP cannot be found fault since they have no personal grudge against the accused officer. The contention of the accused officer is that the said amount was paid by PW.1 as part payment of tax due, but PW.1 in his evidence stated that he never paid the tax due in instalments or part payment. Further, Ex.P.9 indicates that the accused officer did not issue any receipt for the said amount, if really, the said amount was paid towards part payment. The contention of the accused officer is that the DCTO is not cited as a prosecution witness. It is true that the name of DCTO is also mentioned in Exs.P.1 and P.10, but DCTO was not in the office at the time of trap proceedings and he was not in the picture at any time. PW.7 after making investigation dropped the proceedings against DCTO. Under these circumstan’;ces, this court is of the view that the contentions raised by the appellant- accused officer cannot be accepted and as such the impugned judgment does not suffer from any infirmity. 15. In the result, the Criminal Appeal is dismissed. _______________ B.N.RAO NALLA,J 03-03-2011 Note: L.R.copy to be marked. B/o. Stp/Dsh HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Appeal No.1261 of 2003 03 -03-2011 [1] AIR 1987 SC 689 [2] 2001 Crl.L.J. 515.