THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.257 of 2005 (Dated : 28-02-2011) Between: B.Satyanarayana S/o Veeraiah Technician, Orthopaedic Department Osmania General Hospital, Hyderabad. …Appellant A n d State of A.P., by the Inspector of Police, ACB, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.257 of 2005 JUDGMENT: This criminal appeal is directed against the judgment dated 18.2.2005 passed in C.C.No.20 of 1995 on the file of the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder, the learned Special Judge found A-1-B.Satyanarayana guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for brevity, `the PC Act’) and convicted him accordingly and sentenced him to suffer R.I for one year and to pay fine of Rs.1,000/- in default, to suffer simple imprisonment for three months for the offence under Section 7 of the P.C.Act and to suffer R.I for 2 years and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for six months for the offence under Section 13(1)(d) read with 13(2) of the PC Act. Both the substantive sentences were directed to run concurrently. 2. The prosecution case, in brief, is:- A-1 B.Satyanarayana was a Technician in Orthopaedic Department, Osmania General Hospital, Hyderabad and whereas A-2 R.Krishna was a kamati in Osmania General Hospital. Lw.1- Mohd.Kaleemuddin is a physically challenged person and he is resident of Syed Aliguda, Muradnagar, Hyderabad. He went to Osmania General Hospital on 5.7.1993 to get physically handicapped certificate. He submitted Ex.P-9 application dated 03.7.1993 to the Superintendent, Osmania General Hospital for issuance of physically handicapped certificate. He approached A-1- B.Satyanarayana, Technician in Orthopaedic Department for the certificate. A-1, in turn, entered the name of Mohd. Kaleemuddin in a Register and issued Ex.P.10 slip dated 5.7.1993 bearing Token No.C-77 and directed him to approach the doctor sitting in Room No.114 of the hospital in Silver Jubilee Block. Lw.1-Mohd. Kaleemuddin approached the doctor in Room No.114 and the said doctor asked him to meet A-1 B.Satyanarayana in Room No.115 of the said Hospital. A-1- Satyanarayana took him aside and demanded bribe of Rs.150/- for doing favour to him in getting the physically handicapped certificate. He told him that out of Rs.150/-, the concerned doctor will be paid Rs.100/- and he will be retaining Rs.50/-for self. Lw.1-Mohd. Kaleemuddin made up his mind not to pay the bribe amount. He approached Deputy Superintendent of Police, City Range, Hyderabad on 5.7.1993 at 4 p.m. and presented Ex.P-13 complaint before him. Pw.6 G.Raj Gopal Chetty, ASP, City Range, received Ex.P.13 complaint, made confidential enquiries and decided to lay a trap. After obtaining permission from DG, ACB, Hyderabad, he registered a case in Rc.No.8/ACB-CR/1993 for the offences under Sections 7, 11 and 13(2) read with 13(i)(d) of the PC Act on 6.7.1993 at 10 am and issued Ex.P-8 F.I.R. He secured the presence of B.Chandrasekhar Rao (Pw- 5), Assistant Executive Engineer in the office of Engineer in Chief, Panchayat Raj Department, Hyderabad and B.S.R.C.Murthy, Junior Assistant (Lw.6), office of the Engineer-in-chief, Panchayat Raj Department, Gagan Vihar, Hyderabad as mediators. On 6.7.1993, Mohd. Kaleemuddin (Lw-1) approached Pw.6 with the proposed bribe amount of Rs.150/- (50 rupee notes numbering three). Pw.6 explained the result of application of phenolphthalein powder to currency notes. The proposed bribe amount produced by Lw.1 was smeared with the phenolphthalein powder. Pw.6 instructed Lw.1 to give the tainted money to A-1-Satyanarayana on his demand. He was also instructed to give a pre-arranged signal, i.e., by wiping his face with a handkerchief, soon after acceptance of the tainted money by A-1 Satyanarayana. A pre-trap panchanama came to be drafted, which has been exhibited as Ex.P-5. Pw.5 is the scribe of Ex.P-5 pre-trap panchanama. 3. Lw-1 Kaleemuddin approached A-1-Satyanarayana with the tainted currency notes (M.O-9). A-1 directed Lw.1 to meet A-2 R.Krishna in Room No.114. Accordingly, Lw.1-Mohd. Kaleemuddin met A-2 R.Krishna at the doorstep of Room No.114. Thereupon, A-2- R.Krishna discussed with A-1 Satyanarayana in Room No.115. A-2 ascertained from Lw.1 whether he brought the amount demanded by A-1-Satyanarayana. After getting reply in the affirmative from Lw.1 Mohd. Kaleemuddin, A-2 took him to Dr.Ashwini Kumar, who issued Ex.P-11 handicapped certificate. A-2 collected Ex.P-11 certificate issued by Dr. Ashwini Kumar and brought it to A-1 B.Satyanarayana, who put the seal on Ex.P-11 certificate. Both A-1-Satyanarayana and A-2 R.Krishna took Lw.1 Mohd. Kaleemuddin to the corner of the room and demanded the bribe amount of Rs.150/-. Thereupon, Lw.1 Kaleemuddin handed over the tainted currency notes (M.O-9) to A-2 on the instructions of A-1. A-2 received M.O-9 tainted currency notes and handed over the same to A-1, who kept it in the almirah and locked the same and retained key of the almirah with him. Lw.1 gave pre- arranged signal by wiping his face with a handkerchief. Pw-6 received the pre-arranged signal and rushed into Room No.115 and found A-1 Satyanarayana sitting on a table along with some patients. A-2 Krishna was standing at the passage leading to the other portion of the room. Pw.6 disclosed his identity to A-1 Satyanarayana and introduced the mediators to him. He conducted sodium carbonate solution test on his hand fingers and the test proved to be positive. Pw.6 questioned A-1 as to the acceptance of the tainted amount (M.O- 9). A-1 accepted of his receiving the tainted currency notes M.O-9, opened the almirah and produced M.O-9-tainted currency notes along with a paper. The mediators verified the number of currency notes and found that the numbers of currency notes tallied with the numbers mentioned in the pre-trap panchanama-Ex.P-5. Pw.6 also conducted sodium carbonate solution test on the hand fingers of A-2 Krishna, but the test proved to be negative. A post-trap panchanama came to be drafted, which has been exhibited as Ex.P-6. Ex.P-11 is the physically handicapped certificate issued by Dr.Ashwini Kumar in respect of Lw.1 and Ex.P-12 is the Outward Register maintained in the Osmania General Hospital, for the year 1993, which came to be seized during post trap panchanama. Pw.7 Inspector of Police, ACB, Hyderabad took up investigation, examined the witnesses and recorded their statements under Section 161 Cr.P.C. He filed requisition in the Court of VI Metropolitan Magistrate, Hyderabad for recording the statement of Lw.1-Kaleemuddin under Section 164 Cr.P.C. Accordingly, the statement of Lw.1 Mohd.Kaleemuddin came to be recorded by VI Metropolitan Magistrate on 30th August 1993. After obtaining sanction orders, Pw.7 laid charge sheet in the Court of the Principal Special Judge for SPE & ACB Cases, Hyderabad. 4. The learned Special Judge took the charge sheet on file as C.C.No.20 of 1995. On appearance of the accused and on furnishing copies of documents to them, the learned Special Judge framed the following charges against the accused. “FIRSTLY : That A-1 of you, being a public servant employed as Technician in Orthopaedic Department, Osmania General Hospital, Hyderabad, on or about 6th day of July, 1993 at 12.20 p.m., in Room No.115 Silver Jubilee Block, Osmania General Hospital, Hyderabad, had common intention with A-2, demanded a sum of Rs.150/- as illegal gratification and on your behalf A-2 accepted a sum of Rs.150/- from Shri Mohd. Kaleemuddin S/o Azizuddin, Hyderabad towards illegal gratification other than legal remuneration as a motive or reward for showing official favour to get physically handicapped certificate and the said offence was committed with the common intention of both A-1 of you and A-2 and that you thereby committed an offence punishable under Sec.7 of the Prevention of Corruption Act, 1988, read with Sec.34 IPC and within my cognizance. SECONDLY: That A-1 of you, being a public servant as mentioned in charge No.1, on or about 6th day of July, 1993 at 12.20 p.m in Room No.115, Silver Jubilee Block, Osmania General Hospital, had the common intention along with A-2who demanded and accepted a sum of Rs.150/- from Sri Mohd. Kaleemuddin S/o Azizuddin, Hyderabad, by corrupt or illegal means or otherwise abusing your position as such public servant and the said offence was committed with the common intention of both of you and that you thereby committed offence punishable under Sec.13(2) r/w 13(1)(d) of the P.C.Act r/w 34 IPC and within my cognizance. THIRDLY: That A-2 of you being a public servant employed as Kamati in Osmania General Hospital, Hyderabad, on or about 6th day of July, 1993 at about 12.20 p.m in Room No.115, Silver Jubilee Block, Osmania General Hospital, Hyderabad, demanded and accepted a sum of Rs.150/- from Sri Mohd.Kaleemuddin S/o Azizuddin, R/o Hyderabad, as gratification other than legal remuneration as a motive or reward for doing official favour to get physically handicapped certificate for Mohd. Kaleemuddin and you thereby committed an offence punishable u/s 7 of the P.C.Act, and within my cognizance. LASTLY : That A-2 of you being a public servant as mentioned in charge No.3, on or about 6th day of July, 1993 at Room No.115, Silver Jubilee Block, Osmania General Hospital, Hyderabad, by corrupt or illegal means or otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs.150/- from Shri Mohd. Kaleemuddin S/o Azizuddin R/o Hyderabad, for doing official favour to get physically handicapped certificate and you thereby committed criminal misconduct, an offence specified u/s 13(1)(d) of the P.C.Act punishable u/s 13(2) of that Act, within my cognizance.” The accused denied the charges levelled against them and claimed to be tried. 5. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined seven witnesses as Pws. 1 to 7 and proved 13 documents as Exs.P-1 to P-13 and exhibited 10 material objects as M.Os.1 to 10. On behalf of the accused, they examined K.S.Mohiuddin as Dw.1. The learned Special Judge formulated the following points for determination:- “ i. Whether the Accused Officers were public servants within the meaning of Section-2(c ) of the Act? ii. Whether there are valid sanctions for launching prosecution against both the Accused Officers? iii. Whether the prosecution could prove the alleged demand and acceptance of bribe of Rs.150/- by the Accused Officers? iv. Whether the prosecution could prove the common intention as alleged? v. Whether the prosecution could prove the guilt of the Accused Officers beyond all reasonable doubt of the charges levelled against them?” 6. The learned Special Judge, on appreciation of the evidence brought on record and on hearing the counsel appearing for the prosecution and the accused, found A-1-B.Satyanarayana guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of the PC Act and convicted him accordingly and sentenced him as stated supra, while recording acquittal of A-2 Krishna for the offences under Sections 7 and 13(1)(d) read with 13(2) of PC Act, by judgment dated 18.2.2005. 7. For better appreciation, I may refer para (25) of the judgment impugned in the appeal, which indicates the reason for acquittal of A- 2, and it is thus:- “25. Now, coming to the complicity of AO2, as already observed in the above, while referring to the evidence of Pws.5 and 6 and the events incorporated in Ex.P-6, except the recital in Ex.P6 that AO 1 stated adding to his explanation that through AO2 he received the amount, and AO2 admitted that he received the tainted amount on the instructions of AO1, that they are in the nature of confessions, and therefore, they are to be excluded and when the same are excluded, even the evidence of Pws.5 and 6 is insufficient including the evidence of Pw.1 in proving the complicity of AO.2 as not only his name does not figure in the F.I.R revealing his previous participation but also even his hands were not tainted as when they were subjected to the sodium carbonate test, the result was negative. Hence, I am constrained to observe that so far as AO.2 is concerned, the charges levelled against AO2 stand not proved and consequently, even the common intention levelled by the prosecution against AOs under Section 34 IPC would not sustain “ 8. A-1 B.Satyanarayana has filed this appeal assailing his conviction and sentence for the offences under Sections 7 and 13(1)(d) read with Sec. 13(2) of the PC Act. 9. Heard learned counsel appearing for the appellant-accused and learned Special Public Prosecutor for ACB appearing for the respondent-State. 10. Learned counsel appearing for the appellant submits that non- examination of Lw.1 Kaleemuddin who is the person to speak of the demand of bribe by A-1 and acceptance of the tainted money through A-2 is fatal to the prosecution and therefore, the conviction and sentence of the appellant-accused for the offences under Sections 7 and 13(1)(d) read with 13(2) of the PC Act is not legal and proper and the same is liable to be set aside. He would also submit that none of the witnesses examined by the prosecution claims to have witnessed Lw.1 Kaleemuddin handing over the tainted money to A-2 R.Krishna, on the instructions of the appellant-accused No.1, and the sole circumstance of yielding the hand fingers of the appellant-A-1 to the sodium carbonate solution test positive is wholly insufficient to draw an inference that A-1-Satyanarayana demanded and accepted the bribe amount. He would also contend that Room No.115 from where M.O-9 tainted currency notes came to be seized is accessible to all in which case, mere recovery of the tainted currency notes M.O-9 cannot infer the guilty of the appellant-accused for the offences with which he stood charged. Learned counsel vehemently contended that the prosecution utterly failed to give proper explanation for the non- examination of Lw.1 Kaleemuddin who is the person responsible for initiation of the proceedings against the appellant/A-1 in which case, the conviction of the appellant-accused for the offences under Sections 7 and 13(1)(d) read with 13(2) of the PC Act cannot be said to be based on legal evidence. 11. In support of his submissions, learned counsel placed reliance on the judgment of the Supreme Court in A.Subair v. State of Kerala[1], wherein it has been held that when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. Learned counsel laid much emphasis on para 19 of the cited judgment, which reads as hereunder:- “We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non- examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court.” 12. Learned Special Public Prosecutor for ACB appearing for the respondent-State contends that the evidence of Pw.5 is cogent and consistent to the effect that M.O-9-tainted money came to be passed on to A-2 on the instructions of the appellant/A-1 as illegal gratification for issuance of physically handicapped certificate and therefore, the conviction of the appellant/accused No.1 for the offences with which he stood charged is legal and proper and the same is not required to be interfered with in this appeal. He would also submit that non- examination of Lw.1-Kaleemuddin is not fatal, as the accusations levelled against the appellant/A-1 have been substantiated by other acceptable evidence. 13. The issue that calls for adjudication in this appeal is:- Whether the conviction and sentence of the appellant/A- 1 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C.Act is legal and proper ? 14. POINT: Under Section 7 of the P.C.Act, a public servant taking gratification other than legal remuneration in respect of an official act is punishable with imprisonment which shall not be less than six months, but which may extend to five years and shall also be liable to fine. In order to establish an offence under this Section, it is necessary to prove that the public servant accepted or obtained or agreed to accept or attempted to obtain illegal gratification as a motive or reward for doing or for forbearing to do an official act or for showing any favour or disfavour to any person or for rendering any service or disservice to any person with a public servant, as such. The first question that requires consideration is, with what motive, or as reward for what act, was the sum paid as illegal gratification by the complainant and accepted by the accused. Where the evidence of eye witnesses was corroborated by the recovery of money from the accused and the phenolphthalein test also was positive and no explanation for recovery of money from his pocket was given by the accused at the time of recovery, the conviction would be proper. Demand by the accused for the bribe is an essential ingredient of the offence. 15. Section 13 deals with criminal misconduct by a public servant. Under Sub-section (1)(d) if a public servant by abusing his position, obtains for himself or for any other person any valuable or pecuniary advantage shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 7 years and shall also be liable to fine. The words `pecuniary advantage’ includes cases of cash payment. The words `abuse of his position’ mean that the officer does not act as a prudent man, discards all normal and statutory rules and is prepared to accommodate third party and obtain a benefit for him. In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to commit the accused when the substantive evidence in the case is not reliable. The Supreme Court in T.Subramanian v. State of T.N[2] held that if the accused offers reasonable and probable explanation based on evidence that money was accepted by him other than as illegal gratification, the accused would be entitled to acquittal. 16. It is well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution but can establish the same by preponderance of probability. 17. In Chaturdas Bhagawandas Patel v. State of Gujarat[3], it was held that the burden which rests on an accused to displace the statutory presumption that is raised under Section 4(1) of Prevention of Corruption Act, 1947 is not as onerous as that cast on the prosecution to prove its case. But such burden has to be discharged by bringing on record evidence either direct or circumstantial to establish beyond reasonable probability that money was accepted by him other than as a motive or reward as is referred in Section 161 IPC. 18. I may now briefly refer the evidence keeping in view the aforesaid principles:- Pw.1 Ch.Narayana is resident of Yellakonda, Ranga Reddy District. He testifies that on 6.7.1993, he along with Veerachary (Pw.3) met A-1 and A-2 who are working in Orthopaedic Department, Osmania General Hospital, Hyderaband and requested them to issue physically handicapped certificate on 6.7.1993 and thereupon, A-1 and A-2 demanded Rs.2,000/- for issuance of such certificate. He does not speak of A-1 and A-2 demanding illegal gratification from Lw.6-Mohd. Kalemuddin on whose complaint, trap came to be arranged. He admits in cross-examination that he did not take outpatient chit in the hospital on 6.7.1993. Since he did not speak of A-1 and A-2 demanding illegal gratification from Lw.1- Kalemuddin, his evidence is not much material to advance the case of the prosecution. 19. Pw.2 was incharge Lay Secretary, Grade 1 of Osmania General Hospital as on 23.9.1993. He attested extract of the Attendance Register of Orthopaedic unit of OGH to prove that A-1 and A-2 attended office on 6.7.1993. Except marking of attested copy of Attendance Register of Orthopaedic unit through him as Ex.P-1, nothing more is elicited from him. Therefore, his evidence is also not much material to substantiate the charge levelled against the appellant/A-1. Pw.3 is resident of Uttapally of Medak District. He does not speak of the appellant/A-1 demanding money through A-2. Indeed he did not support the prosecution and prosecution declared him hostile and marked his 161 Cr.P.C statement as Ex.P-2. Pw.4 is Section Officer in Medical, Health and Family Welfare Department, Secretariat, Hyderabad. He speaks of sanction proceedings whereunder the Secretary to Government, HMFW Department accorded sanction to prosecute the accused for the offences under Section 13(2) of the P.C.Act read with section 34 IPC. Pw.5 B.Chandrasekhara Rao, Assistant Executive Engineer in the office of the Engineer-in-Chief, Panchayat Raj Department is the panch witness for the pre-trap and post-trap panchanamas. He admits in cross-examination that Ex.P-5 pre-trap panchanama does not indicate of Lw.1-Kaleemuddin informing of A-1 demanding the bribe from him. For better appreciation, I may refer the relevant portion of the cross- examination of Pw.5 in his own words and it is thus:- “ It is true it is not mentioned in Ex.P5 to the effect that complainant Kalemuddin stated before us that AO1 demanded bribe from him. (the witness volunteers that it is mentioned in Ex.P.5 that complainant Kalemuddin confirmed the contents of the complaint when they enquired) It is true Ex.P5 does not contain the signature of DSP, Inspectors and the complainant. It is not true to suggest that during pre trap proceedings, we did not ascertain the contents of the complaint with the complainant. It is true when the complainant gave signal to us we went inside the office after passing the complainant. It is not true to suggest that while entering into the office after receiving signal DSP had a talk with the complainant. The room No.115 got access to one and all……..” 20. Pw.6 G.Rajgopal Chetty is the trap-laying officer. Pw7 A.Venkat Ratnam, Inspector of Police, ACB accompanied Pw.6 on 6.7.1993, i.e., the date of trap. He took up investigation and filed requisition before VI Metropolitan Magistrate on 30.8.1993 to record the statement of Lw.1-Kaleemuddin under Section 164 Cr.P.C. After completion of investigation, he laid charge sheet. 21. The sole witness to speak of the demand and acceptance of bribe by the appellant/A-1 is Lw.1-Mohd. Kaleemuddin. The prosecution did not choose to examine him as a witness. Of course, the prosecution came up with an explanation that the whereabouts of Lw.1-Kaleemuddin were not known. Ex.P-13 complaint presented by Lw.1 Kaleemuddin came to be marked through Pw.6. The accused raised objection for marking the said complaint and the trial Court marked the complaint as Ex.P-13 subject to objection. Pw.7 is the Investigating Officer. He filed requisition before the VI Metropolitan Magistrate on 30.8.1993 for recording the statement of Lw.1-Mohd. Kaleemuddin. The learned Magistrate accepted the requisition and recorded the statement of Lw.1-Mohd. Kaleemuddin. For the reasons best known, the prosecution did not choose to mark the 164 Cr.P.C statement of Lw.1. Pw.7 has not given any explanation for not producing Lw.1 Kaleemuddin before the Court for being examined as a witness. The learned trial Judge assumed that the prosecution could not examine Lw.1 Mohd. Kaleemuddin as his whereabouts could not be secured. It is trite to note the evidence of Pw.7, who is the Investigating Officer, which reads as hereunder:- “Chief-examination by Spl.P.P:- I am working as a Inspector of Police, Stamps Investigation team, Hyderabad from 06.10.2003. Earlier I worked as Inspector of Police, ACB, Hyderabad city range from 04.6.1993 to 06.06.99. While I was working as Inspector of Police, on 06.7.93 I accompanied Sri Rajgopal Shetty DSP, City range in this case and on 08.7.93 I took up investigation in this case and recorded the statement of complainant on 11.08.93. One Ch.Narayana on 18.8.93, V.Veerana chary on 18.8.93 and Yousuf Ali on 23.09.93. I also filed requisition and got recorded the statement of complainant under Section 164 Cr.P.C by