THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL No.2348 of 2004 JUDGMENT: Appellant V.Rajasekhar (admittedly a public servant) is the second accused in C.C.No.2 of 1994 on the file of the Court of the Principal Special Judge for SPE & ACB Cases –cum- IV Additional Chief Judge, City Civil Court, Hyderabad (trial court). He along with A-1 V.Deekshachary was tried on charges under Section 7 and Section 13(1)(d)(i) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short - the Act) read with Section 34 IPC on allegations of bribery. 2. The trial court, after considering the evidence, by its judgment dated 14.10.2004 acquitted the first accused but convicted the appellant i.e. the second accused of both the charges and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- on the first count and to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- on the second count besides imposing default clause prison sentences. It directed both the substantive sentences of imprisonment to run concurrently. Questioning the said judgment, the appellant has come up with this appeal. As the matter is now at large before this court, it has to be considered in detail. It is brought to my notice that a connected criminal appeal Crl.A.No.2270 of 2004 pertaining to another official of the Bodhan Municipality was dismissed but that has nothing to do with the merits of this matter. 3. The prosecution case is this. At the relevant time the appellant was working as Tracer and Incharge Building Overseer of Bodhan Municipality in Nizamabad District while A-1 Deekshachary was working as Municipal Commissioner in the same municipality. Both were admittedly public servants within the meaning of the Act. Both the accused as such public servants had the power to deal with sanction of building plans for constructions within the local limits of the above municipality. 4. According to the prosecution P.W.1 Ch.Venkateswara Rao (de facto complainant) who was an employee of the Andhra Pradesh State Road Transport Corporation at that time had a vacant site in Bodhan municipality and he made an application for approval of plans for construction of a building in his site. The further version of the prosecution is that P.W.1 approached the first accused on 23.03.1993 regarding permission for his house construction but on that occasion the first accused told him to meet the appellant in connection with the same and that P.W.1 on the same date i.e. 23.03.1993 met the appellant. It is stated that on that day the appellant demanded from P.W.1 a sum of Rs.1,000/- towards bribe for doing the official favour of giving the permission for construction and at that time the appellant specifically informed P.W.1 that out of the amount of Rs.1,000/-, Rs.500/- is to be paid to the first accused towards his share while the other Rs.500/- was meant for him (appellant). It is further stated that P.W.1 approached both the accused several times and requested them to issue construction permission but every time they reiterated their demand. The plea of the prosecution is that finally on 02.04.1993 P.W.1 again met the first accused and requested him to give the construction permission but on that day A-1 specifically told him to meet the appellant and pay the demanded bribe amount to him and when he met the appellant, the appellant also reiterated the said demand of Rs.1,000/- as bribe. 5. The version of the prosecution is that as P.W.1 was not willing to pay the bribe amount, he gave Ex.P.1 report to P.W.4, K.Saibaba, the Deputy Superintendent of Police (DSP), ACB at Nizamabad and a case was registered. It is further stated that after registering the case the ACB DSP made arrangements to lay the trap on 06.04.1993. The further details are not necessary but it would be sufficient to note that according to the prosecution the trap was successful and the appellant was trapped and the bribe amount of Rs.1,000/- consisting of ten notes of Rs.100/- denomination treated with phenolphthalein powder was recovered from the person of the appellant and it is also alleged that the sodium carbonate solution test proved positive on both his hands. 6. P.W.1 as already mentioned is the complainant, P.W.2 B.Bhoomaiah, who was also a public servant at that time is one of the two mediators –cum- accompanying witness and P.W.4, as stated supra is the ACB DSP. Ex.P.3 is the first mediators’ report relating to the pre-trap proceedings under which P.W.1 was entrusted with the bribe money after treating with phenolphthalein powder and Ex.P.4 is the second mediators report covering the post-trap proceedings. 7. A perusal of the evidence of P.Ws.1, 2 and 4 would no doubt show that on the date of trap P.W.1 went and gave the bribe money to the appellant and it was recovered from him. To this extent the prosecution case can undoubtedly be held as proved i.e. the receipt of the bribe money by the appellant and its recovery from him. 8. The main defence taken in the cross-examination of P.W.1 the complainant is that earlier he (P.W.1) owed a sum of Rs.1,000/- to the appellant and that amount was due even as on the date of trap and therefore on the date of trap P.W.1 gave the money of Rs.1,000/- representing that he was repaying it towards the loan due and the appellant innocently accepted it. This defence of the appellant was put to by P.W.1 and it would be sufficient to note what P.W.1 has stated in his cross-examination on this aspect while admitting the above loan. “In the third week of February, 1993 while I was driving the bus a cyclist was hit to my bus. Then I myself admitted the cyclist in the hospital and I spent amount in the hospital to the cyclist. At that time when I was not having money readily for spending in hospital I approached Gangadharappa Municipal Councilor of Bodhan Municipality. It is true that the said Gangadharappa was not having ready cash to give loan to me and then he took me to the AO2 (appellant). I took loan of Rs.1,000/- from AO2. I informed the AO2 that I would repay the loan of Rs.1,000/- within 2 or 3 weeks. When I failed to repay Rs.1,000/- AO2 demanded me 2 or 3 times for the loan amount and AO2 also asked for the interest amount. When AO2 demanded for interest on the loan of Rs.1,000/- I again approached Gangadharappa councilor and through him it was settled that I have to pay only Rs.1,000/- to AO2 without interest. It is true that by 06.04.1993 I had to pay Rs.1,000/- to AO2. ………” 9. The above version of P.W.1 would show that he in substance admitted the defence of “loan theory” raised by the appellant i.e. the second accused. Sri Padmanabha Reddy the learned senior counsel appearing for the appellant argued that since the above line of defence has been accepted by P.W.1, the trial court ought to have recorded acquittal and it erroneously recorded conviction and therefore the appeal should be allowed. 10. On the other hand, Sri Ramachandra Reddy the learned Special Public Prosecutor appearing for the ACB strenuously pointed out that though P.W.1 has admitted the existence of a loan due from him to the appellant by the date of trap, the appellant did not give this explanation in the post-trap proceedings and even the version of P.W.1 would show that though he admitted the loan he gave the amount of Rs.1,000/- on 06.04.1993 only towards bribe and not towards repayment of the loan. This argument of Sri Ramachandra Reddy cannot be accepted. 11. Sri Ramachandra Reddy in support of his above contention also relied upon a decision of the Supreme Court given in A.Abdul Kaffar v. State of Kerala[1]. The principle laid down in this decision is that failure of the accused public servant to raise his defence or give his explanation in the first instance before the investigating officer i.e. in the post-trap proceedings is a ground to reject his defence. There is no dispute about this proposition. This proposition will however apply only when the complainant has rejected the defence theory in toto but not to a case where the answers given by the complainant more probablise the defence of the accused. Accordingly it is held that this decision does not help the prosecution case. 12. It may be noted that it is not necessary, to accept a defence as probable, that the accused should raise it in the post-trap proceedings and similarly it is also not necessary that he should take it in his first answer to the charges framed. In Punjabrao v. State of Maharashtra[2] relied upon by the learned senior counsel for the appellant it is laid down that accused can establish his defence by preponderance of probabilities and if the explanation offered by him under Section 313 Cr.P.C. is found to be reasonable then it cannot be thrown away merely on the ground that he did not offer the said explanation at the time when the amount was seized. In the present case the above decision is a complete answer to the objections of Sri Ramachandra Reddy. 13. To repeat, it may be noted that P.W.1 has admitted the defence of loan raised by the appellant and this amount was admittedly due as on 06.04.1993 i.e. the date of trap. In such a situation if the accused takes a defence that he merely accepted the amount as repayment of the loan and that the complainant has pretended to give the amount as repayment while in fact having complained to the ACB, such a defence cannot be rejected holding that it is a false defence even in the face of admission of the complainant that loan amount was due from him to the appellant on the date of trap. To wriggle out of his predicament in which a complainant may place himself in a fact situation like this, he may go on asserting that he paid the amount towards bribe and not as a repayment of loan. This mere assertion of complainant that he paid the amount towards bribe cannot be accepted and in any event it becomes reasonably doubtful in the facts of the present case. 14. It appears that the importance of this defence having regard to the admissions made by P.W.1 was not taken to the notice of the trial court in proper manner and consequently it came to ignore it. Hence for all the aforesaid reasons I am of the opinion that the judgment of the trial court convicting the appellant for both the charges cannot be sustained. 15. Accordingly this appeal is allowed and the convictions and sentences recorded by the trial court are set aside and the fine amount if any paid is ordered to be refunded after expiry of the time available to the prosecution to pursue the remedies available to it against this judgment. ______________________ N. RAVISHANKAR, J 12th December 2011 CVRK [1] (2004) 9 SCC 333 [2] (2002) 10 SCC 371