THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.842 of 2004 BETWEEEN: G.Sridhar … Appellant AND State – rep. by C.B.I. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.842 of 2004 JUDGMENT: The appellant/accused was working as Upper Divisional Clerk (UDC) in Income Tax Office, Salary Circle, Hyderabad. The Special Judge for C.B.I. cases, Hyderabad by judgment dated 18.03.2004 in CC.No.5 of 2001 convicted the accused for the offence under Section 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced him to rigorous imprisonment for one year and fine of Rs.1,000/-; and he was also convicted for the offence under Section 7 of the Act and sentenced to rigorous imprisonment for six months and fine of Rs.1,000/- 2. PW2/defacto complainant is a Software Engineer. He got appointment in Ascend Soft LLC, California, U.S.A. as Software Engineer and intended to go to United States of America (U.S.A.). For the said purpose, his travel agent namely Sri Tours Private Limited, New Delhi informed him about requirement of Income Tax Clearance from Income Tax Department in order to obtain Air Ticket to PW2 to go to U.S.A. On 21.06.2000, PW2 submitted his application for Income Tax Clearance Certificate in Ward 4(3) counter of the Income Tax Office at Shapurwadi, Hyderabad. On 22.06.2000, he again went to the same counter and enquired about status of his application. He was directed to meet the accused in the office located behind the counter. It is alleged that when PW2 met the accused in the office and enquired about status of his application, the accused demanded bribe of Rs.1,500/- for issuing the Clearance Certificate and that when PW2 expressed his inability to pay the same, the accused asked him to pay at least Rs.1,000/- so that he would receive the Clearance Certificate. Aggrieved by the alleged demand of the accused for bribe, PW2 went to office of Central Bureau of Investigation (CBI), Hyderabad and presented Ex.P1 report. Thereupon, PW6 who is the Inspector of C.B.I. arranged trap for the accused on the same day in the presence of mediators including PW1. It is alleged that the accused was successfully trapped and MO.5 tainted cash of Rs.1,000/- was seized from his possession. Plea of the accused is one of not guilty. The lower Court after full trial wherein PWs 1 to 7 were examined and Exs.P1 to P10 and MO.s 1 to 5 were marked on behalf of the prosecution and DW1 was examined on behalf of the accused, found the accused guilty of the charges. 3. In this appeal, the senior counsel appearing for the appellant/accused contended that in this case, there is no proof of demand and acceptance of bribe or illegal gratification by the accused from PW2 and that mere recovery of tainted cash MO.5 from the possession of the accused leads nowhere. On the other hand, the Special Public Prosecutor contended that evidence of PWs 1, 2 and 6 not only proved recovery of tainted cash MO.5 from possession of the accused but also proved demand of bribe by the accused and acceptance of MO.5 as bribe by the accused. From the evidence of PWs 1, 2 and 6 and Ex.P3 second mediators report relating to post trap proceedings, there is least doubt of the fact that MO.5 tainted cash was recovered from right side pant pocket of the accused. The question to be considered is whether there was demand for bribe by the accused and whether there was acceptance of bribe by the accused from PW2. 4. Even though PW1 was directed by the trap laying officer PW6 to accompany PW2 during the trap, PW1 though accompanied PW2 until the seat of the accused, PW1 was not present at the place of PW2 handing over MO.5 tainted cash to the accused and was not a witness to the circumstances under which PW2 handed over MO.5 tainted cash to the accused. PW1 initially speaks to pre-trap proceedings covered by Ex.P2 first mediators report prepared in the office of C.B.I at Hyderabad and tainting of MO.5 currency notes with phenolphthalein powder. PW1 further says that he and the complainant (PW2) reached Income Tax Office at Shapurwadi by 4:30 P.M and that they went to the office which is in a big hall and the other trap team was waiting outside the hall and that PW2 met the accused and that the accused instructed PW2 to wait for some time as he was busy and as Deputy Commissioner was also present and that after five minutes, the accused called PW2 and himself and enquired PW2 about identity of PW1and that PW2 introduced PW1 to the accused as his friend. PW1 further says that the accused enquired PW2 whether the money demanded was brought and that the accused asked PW2 to sign on the counter foil and later took PW2 into vacant chamber of one Eashwaraiah and that he (PW1) did not go inside that room. PW1 says that after PW2 returned from the room, he enquired PW2 whether the amount was paid, for which PW2 replied in the positive and that thereafter he gave pre-arranged signal to the trap party, when PW6 and others came and caught hold of the hands of the accused and recovered MO.5 from his right pant pocket. Hand washes of the accused in Sodium Carbonate solution turned pink. Lining of right pant pocket of the accused also turned pink when dipped in Sodium Carbonate solution. Even though PW1 deposed about the accused enquiring PW2 about bringing the money demanded by him, PW2 did not support the said version. PW1 himself changed the version in cross-examination which took place on some other day after examination-in-chief. In cross-examination, PW1 deposed that the accused asked PW2 whether he brought the thing, which was asked in the morning. He did not specify the thing which the accused asked PW2 as money, during cross-examination. PW1 further deposed in cross-examination that the accused delivered the certificate after obtaining signature of PW2 on the counter-foil in the hall. 5. PW2 also did not support his own version contained in Ex.P1 report, when he was examined as witness in the lower Court. It is evidence of PW2 that he approached the accused and asked him about status of his application and that the accused was not having his application on his table and so went to 4(3) section and brought his application and verified his application and made an acknowledgment and that later, the accused asked him to produce original certificates and passport and that as he was not having originals with him, he came out. According to PW1, when he came out, somebody approached him and enquired as to whether he knew about the formalities and he replied that he does not know, and the said person informed him that he should pay Rs.1,500/- or at least Rs.1,000/- . PW1 says that he suspected that the accused must have sent the other person who informed him about the formalities and that he thought that everybody in the office are in that line and that therefore, he approached C.B.I and lodged his report on the same day. As per evidence of PW2, there was no demand made by the accused for any bribe much less either for Rs.1,500/- or for Rs.1,000/- prior to he giving Ex.P1 report in C.B.I. office. It was somebody else than the accused who informed PW2 about the formalities of paying Rs.1,500/- or Rs.1,000/-. The said person informed the same to PW2 when he came out of the Income Tax Office. The alleged formalities were not informed to PW2 either by the accused or by some other person in the presence of the accused. It is only on suspicion that the accused must have sent the other person to him, PW1 thought that everybody in the office are in that line. In cross-examination, PW2 deposed that he has a pre-conceived notion about the Income Tax Department. Because of the pre- conceived notion and out of suspicion, PW2 gave Ex.P1 report in C.B.I. office, even though the accused did not demand for any bribe of Rs.1,500/- or Rs.1,000/- from PW2 prior to it. There was no accompanying witness to PW2 when PW2 approached the accused in his office in the morning prior to giving Ex.P1 report. 6. With regard to events during the course of trap, it is evidence of PW2 that after going to the office of the accused along with PW1, he reminded the accused about he meeting him in the morning for the sake of clearance certificate and that the accused asked him to wait outside for some time as there was some officer inside. It is contended by the Special Public Prosecutor that if really the accused did not demand for bribe and did not intend to accept bribe from PW2, there was no necessity for the accused to ask PWs 1 and 2 to wait outside as there was some other officer with him inside. When the accused was attending official work along with an officer, he cannot be expected to interact with the public. In order to concentrate on the work along with the officer, the accused asked PWs 1 and 2 to wait outside for some time. Immediately within two or five minutes, the accused asked them to come inside. PW2 says that the accused informed him about the certificate being ready even when the accused instructed them to wait outside. PW2 further says that the accused enquired about the identity of PW1 and he introduced PW1 as his friend and that the accused delivered his certificate and that he was asked to proceed to the chambers of one Eashwaraiah, Income Tax Officer, which chamber was vacant on that day and that he and the accused went inside the said chambers and that in that chambers, the accused enquired whether he brought the thing which he had asked in the morning and that he (PW2) showed his shirt pocket to the accused indicating about he bringing the thing and that in that room, the accused extended his hand and that as he (PW2) was in a hurry, he thought that the accused was extending his hand for the sake of money and so he kept the money in his hand and that the accused received the money with his right hand and that he (PW2) immediately ran to the door and informed PW1 about he paying the money. Immediately PW1 gave pre-arranged signal to the raid party who rushed into the office and caught hold of the accused red-handed. It is contended by the Special Public Prosecutor that there was no other reason for the accused to take PW2 inside a vacant chamber of one Eashwaraiah and enquiring PW2 about bringing the thing which he asked in the morning. On the other hand, it is contended by the senior counsel appearing for the appellant/accused that there was absolutely no demand much less payment of money by PW2 to the accused prior to delivery of the Clearance Certificate and that if really the accused demanded and expected any bribe from PW2, the accused would not have handed over the Clearance Certificate to PW2 before going into vacant chambers of Eashwaraiah. According to PW2 what was enquired by the accused from PW2 inside the vacant chambers of Eashwaraiah, was the thing which he had asked in the morning namely original certificates and passport and not money. There is no evidence of the accused demanding any money in the morning from PW2. The accused asked PW2 whether he brought original certificates and passport. When the accused made the said enquiry with PW2, PW2 went out of the office, as he was not having original certificates and passport with him. From the evidence of PW2, it is clear that when the accused enquired him whether he brought the thing which he had asked in the morning, PW2 thought that he was extending his hand for the sake of money. In the morning, it was not the accused who asked PW2 for any money. It was somebody who informed PW2 outside the office of the accused about there being some formalities in that office and suggested to PW2 to pay Rs.1,500/- or Rs.1,000/- for getting Clearance Certificate. Neither the accused demanded for any bribe or gratification in the morning nor the accused demanded for any money or bribe during the course of the trap after the accused and PW2 entered into vacant chambers of Eashwaraiah. It is evident that because of pre-conceived notions and out of suspicion and out of his own imagination and thinking, PW2 launched the tirade against the accused. After keeping tainted cash MO.5 in the right hand of the accused inside vacant chambers of Eashwaraiah, PW2 hurriedly came out and informed PW1 about he paying the tainted cash to the accused, as if he had achieved his object or goal. 7. Even after PW2 going to USA, he had guilty mind and realised his impropriety and started making correspondence with the department. PW2 deposed in examination-in-chief itself that after reaching America, he made correspondence with the Commissioner of Income Tax saying that he was guided by the third party and therefore, he thought fit to correspond with the Income Tax Commissioner to appraise him that it was the third party who is the person who demanded money. He says that sister of the accused met him in U.S.A. and after that, he made the said correspondence with the Income Tax Commissioner. But, he says that he made the correspondence on his own but not due to any pressure. He says that he gave statement before the Magistrate in accordance with his report, as he was in a hurry to leave the country. It is astonishing to note that inspite of PW1 not speaking about the accused demanding for bribe or gratification and PW2 speaking about handing over of tainted cash MO.5 to the accused under misconception, the Special Public Prosecutor who conducted trial in the lower Court, did not seek permission of the lower Court for treating PW2 as hostile to the prosecution and did not make any attempt to cross-examine PW2 on the aspects of demand of bribe and acceptance of the same by the accused. It is a serious lacuna in conducting the prosecution in the lower Court. The prosecution accepted the version of PW2 in his examination in toto and the prosecutor did not challenge any part of evidence of PW2 in the lower Court. Inspite of it, the lower Court on the basis of PW1’s evidence in Examination-in-Chief, and certain portions of cross-examination of PW2 by the defence counsel, found the accused guilty of the charges. The lower Court over-looked the fact that though PW1 in Examination-in-Chief spoke to the accused enquiring PW2 bringing money as demanded by him in the morning, in Cross- Examination clarified the same to the effect that the accused enquired PW2 about PW2 bringing the thing which he asked for in the morning. It is not the case of the accused that MO.5 tainted cash was recovered by the trap party from the floor and not from his pocket. The defence counsel only enquired PW2 whether the amount had fallen on floor or not. It was not suggestion of the defence counsel to PW2 that the tainted cash MO.5 was recovered from the floor and not from the pocket of the accused. At this stage, it may be useful to note that in Ex.P3 second mediators report relating to post trap proceedings also, it was recorded that PW1 told the trap laying officer about the accused asking PW2 as to what happened to the thing which he told him in the morning. Though that portion of Ex.P3 is not a substantive piece of evidence, the said portion can be used for contradicting relevant portion contained in the Examination–in- Chief of PW1. Therefore, it is established by record that either in the morning or in the evening during the course of trap, the accused did not make any demand for money from PW2 and did not enquire PW2 as to whether he brought money which he demanded from him in the morning. 8. In the absence of proof of demand of bribe or illegal gratification by the accused and in the absence of proof of acceptance of the same by the accused from PW2, the question of presumption under Section 20(1) of the Act coming into force does not arise at all. (S e e Banarsi Dass Vs. State of Hayana[1] of the supreme Court). 9. Therefore, for all the above reasons, I do not agree with the reasoning and conclusion of guilt arrived at by the lower Court. I am satisfied that the prosecution has failed to prove either of the two charges framed against the accused /appellant 10. In the result, the Criminal Appeal is allowed setting aside the convictions and sentences passed by the lower Court against the appellant/accused and acquitting him. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 30.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.842 of 2004 DATED: 30.04.2011 ysk [1] AIR 2010 SUPREME COURT 1589