THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS.1201 AND 1204 OF 2002. DATED: 28-08-2009. CRL.A.NO.1201 OF 2002 Between: Alluri Srinivasa Rao … Appellant-Accused No.2 and State of A.P. represented by the Special Public Prosecutor for ACB Cases, Hyderabad … Respondent-Complainant CRL.A.NO.1204 OF 2002 Between: Jangam Kumara Swamy … Appellant-Accused No.1 and State of A.P. represented by the Special Public Prosecutor for ACB Cases, Hyderabad … Respondent-Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS.1201 AND 1204 OF 2002. COMMON JUDGMENT: Criminal Appeal No.1201 of 2002 by A2 and Criminal Appeal No.1204 of 2002 by A1 under Section 374 (2) Cr.P.C., is directed against the judgment, dated 26-11-2002, in C.C.No.8 of 1998, on the file of the Special Judge for ACB Cases, Visakhapatnam, whereunder and whereby A1 and A2 were 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’) r/w 34 IPC and sentenced to undergo Simple Imprisonment for a period of one year each and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for a period of one month each under each count. 2. Brief facts, that are necessary for disposal of the present Criminal Appeals, may be stated as follows: The first accused-accused officer No.1 (hereinafter referred to as ‘A.O.1’) was working as Sub-Treasury Officer (East), Anakapalli since 05-10-1993 and the second accused-accused officer No.2 (hereinafter referred to as ‘A.O.2’) was working as Senior Accountant in the same office from 29-06-1996. P.W.1 worked as Physical Director in Government Junior College, Subbavaram from October, 1986 to November, 2000. While he was working at Subbavaram, the Government issued orders on 03-07-1996 that the Physical Directors should be paid salary equal to that of a Junior Lecturer. Therefore, P.W.1 applied for arrears of salary under Ex.P3, dated 28-08-1996 to the Principal of the College. P.W.2-Senior Assistant in the college presented Ex.P8- bill to the Sub-Treasury officer, Anakapalli by enclosing Form-47 and also copies of the two Government Orders. The gross amount of the bill was Rs.44,519/- and the net amount was Rs.42,679/-. P.W.2 obtained the signature of the Principal on the bill and entered the same in the Treasury Bill book of his office and presented the same in Sub-Treasury Office at Anakapalli on 22- 11-1996. The token number assigned to the bill was 538. Then A.O.1 informed P.W.2 to bring P.W.1 along with him in connection with passing of the bill of P.W.1. So P.Ws. 1 and 2 went to the office of A.O.1 on 25-11-1996.P.W.1 met A.O.1 and he demanded P.W.1 to pay 10% of the bill amount for passing the bill. P.W.1 refused to pay the said amount as his bill was in order. Subsequently A.O.1 raised an objection on the bill that as per G.O.Ms.No.161, Pre-audit by District Treasury Officer is necessary. P.W.2 informed the said fact to the Principal of the college. On that, the bill was presented to the District Treasury Officer for the purpose of pre-audit along with a covering letter of the Principal, dated 30-11-1996. Subsequently, P.W.2 came to know that the bill was objected to on the ground that Adhoc Sanction by the head of the Department is necessary as per G.Os.Ms.No.161 and the bill was returned. P.W.2 brought this matter to the notice of the Principal. Later when P.W.2 went to the office, A.O.1 enquired him about the bill of P.W.1, and P.W.2 informed A.O.1 that the bill was returned with an objection by D.T.O. Then A.O.1 advised him to present the bill after one month. A.O.1 also advised P.W.2 to present the bill referring to court orders and after changing Form No.47. P.W.2 put up a note on 02- 02-1997 before the Principal with the above facts and also referring to a similar bill of Chodavaram S.T.O. office, which was passed under similar circumstances. The Principal asked P.W.2 to discuss the matter with A.O.1 and A.O.1 advised him to present the bill as if is after changing Form No.47 (Ex.P4 (a)). Accordingly, P.W.2 presented the bill on 05-02-1997 in the office of A.O.1 and token No.203 was assigned to the bill. P.W.2 obtained the signature of the Principal on Form No.47 with the date 05-02-1997 and enclosed the same to the bill. A.O.1 instructed P.W.2 to bring P.W.1 along with him. Both P.Ws. 1 and 2 went to the office of A.O.1 on 19-02-1997 and A.O.1 was on leave on that day. Both of them went to the office of A.O.1 on the next date i.e., on 20-02-1997 at about 1.30 P.M. and when they met him, he stated to P.W.1 that had he paid 10% of the bill amount as demanded by him earlier, the bill would have been passed long time back and P.W.1 could have avoided going around the office. At that time A.O.1 told P.W.1 that the bill will not be passed unless Rs.2,000/- was paid by P.W.1 for passing the bill. P.W.1 pleaded that he cannot pay the said amount. On that A.O.1 stated that at least Rs.1500/- should be paid and threatened that unless the demanded amount is paid, the bill will meet the same old fate. P.W.1 agreed to pay Rs.1500/-. Then A.O.1 asked P.W.1 to get Rs.1500/- on the next day and pay the amount to A.O.2 and asked him to get his bill processed. A.O.1 also told A.O2 that P.W.1 would come and pay Rs.1500/- for processing the bill. When P.W.1 was getting up to leave the office, A.O.2 demanded P.W.1 to bring Rs.1500/- as instructed by A.O.1. A.O.1 also told P.W.1 to bring Form No.47 containing the objection of D.T.O. and also stated that his bill will not be passed if he failed to bring the amount. Thereafter, P.Ws. 1 and 2 returned to the college. As P.W.1 was not willing to pay the bribe amount and get his bill passed, he approached ACB officials at Visakhapatnam and presented Ex.P1 report to P.W.5, who registered a case in Cr.No.9/RC-ACB/1997 and decided to lay a trap on 21-02-1997. He secured the presence of P.W.3 and one L.Narasinga Rao. P.W.1 was also instructed to attend the office along with P.W.2 on the morning of 21-02-1997 along with the proposed bribe amount. On 21-02-1997 at 7.45 A.M., all of them assembled in the office of P.W.5. P.W.1 produced Rs.1500/- and Ex.P5-mediators report was prepared. After completing the pre-trap proceedings, all of them left the office of P.W.5 in two Government vehicles and reached Anakapalli bus stand at 11 A.M. P.W.5 instructed P.Ws. 1 and 2 to get down from the vehicles and proceed to STO office and meet A.Os. 1 and 2 and on their further demand for bribe to pay it and to give pre-arranged signal. P.Ws. 1 and 2 proceeded to STO office on foot and reached the office and went into the room of A.O.l. Immediately on seeing both of them, A.O.1 stated that he has already instructed them to meet A.O.2 and give Rs.1500/- and get the bill processed. Then P.Ws. 1 and 2 went to the room of A.O.2. After two persons who were in the room of A.O.2 left the room, A.O.2 asked P.W.2 whether they brought the original Form No.47 and he answered in the affirmative. A.O.2 asked P.W.1 as to whether he brought Rs.1500/- and P.W.1 answered in the affirmative. On the demand of A.O.2, P.W.1 paid Rs.1500/- to A.O.2 who took it with his right hand and transferred the same to his left hand and placed the same in the left side table drawer. When A.O.2 asked P.W.2 for Form No.47, P.W.1 gave it from his rexine bag to P.W.2 who in turn gave it to A.O.2. A.O.2 demanded P.W.2 to make an endorsement on the original Form No.47 as ‘cancelled’. P.W.2 made an endorsement on the original Form No.47 (Ex.P4 (a)). Then A.O.2 processed the bill and sent the entire file along with original Form No.47 to the adjacent office room of A.O.1 for passing orders. After ten minutes the file was returned to the office room of A.O.2 and P.Ws 1 and 2 could know that the bill was passed. P.W.1 went out and gave pre-arranged signal. After receiving the signal, the trap party entered the room of A.O.2 and when conducted Sodium Carbonate Solution Test, the solution turned into pink in respect of both hand fingers. When P.W.5 questioned A.O.2, he denied having received the amount. The version of A.O.2 was incorporated in the second mediators report. The amount was picked up by A.O.2 from his left side table drawer and handed over the amount to the mediator. A.O.1 was also called and his version was incorporated in the mediators report. After obtaining sanction orders under Exs.P23 and P24, charge sheet was filed. 3. The learned Special Judge framed the following charges against the accused: Firstly: That A1 of you (Jangam Kumara Swamy) and A2 of you (Alluri Srinivasa Rao), being public servants i.e., Sub Treasury Officer and Senior Accountant in the office of Sub-Treasury Officer, Anakapalli (East) respectively, in furtherance of your common intention of extracting some amount as gratification other than legal remuneration as a motive or reward from one V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, in the matter of processing ad passing his arrear bill for Rs.42,679/- demanded him to pay Rs.1500/- towards bribe and on or about the 21st day of February, 1997 at about 12.25 P.M. in your office A2 of you accepted or obtained a sum of Rs.1500/- from the said V.Lakshmi Narayana, as per the earlier instructions of A1 of you, for yourselves as a gratification other than legal remuneration as a motive or reward to process his arrear bill for Rs.42,679/- to A1 of you for passing the same, in the exercise of your official functions and that A1 and A2 of you committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 read with Section 34 IPC. Secondly: That A1 and A2 of you, at the same time and place stated supra, in furtherance of your common intention of extracting some amount as gratification other than legal remuneration from one V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, in the matter of his passing arrear bill for Rs.42,679/-, A2 of you by corrupt or illegal means or otherwise abusing your position as such public servant, demanded and obtained for yourself a pecuniary advantage to an extent of Rs.1,500/- from the said V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, and thereby A1 and A2 of you committed an offence specified under Section 13 (1) (d) of the P.C. Act, 1988 punishable under Section 13(2) of that Act read with Section 34 IPC. Thirdly: That A1 and A2 of you being public servants i.e., Sub Treasury Officer and Senior Accountant in the office of Sub- Treasury Officer, Anakapalli (East) respectively, prior to 21-02-1997 at 12.25 P.M. in your office, in furtherance of your common intention of extracting some amount as gratification other than legal remuneration as a motive or reward from one V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, in the matter of processing ad passing his arrear bill for Rs.42,679/-, A2 of you willfully and with intent to defraud, got altered the original APTC Form 47of the bill containing the objection of the District Treasury officer, Visakhapatnam to the effect that Adhoc sanction by the Head of the Department is necessary with the writing ‘Cancelled’ by the Senior Assistant of the said college Sri K.R.Subba Rao so as to enable you to substitute the same with a fresh APTC Form 47 and gave it to A1 of you and thereby A1 and A2 of you committed an offence punishable under Section 477-A read with 34 IPC. Fourthly: That A1 and A2 of you at the same time and the place stated supra, knowing that certain offence i.e., offence under Section 477-A r/w 34 IPC has been committed did cause certain evidence of the said offence disappear i.e., A2 of you after getting altered the original APTC form 47 of the arrear bill of V. Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, for Rs.42,679/- with the writing ‘Cancelled’ by the Senior Assistant of the said College K.R. Subba Rao gave the same to A1 of you for suppressing the same with an ulterior motive i.e., to enable you to substitute the same with a fresh APRC Form No.47 by creating false record and with the intention of screening you from legal punishment and thereby committed an offence punishable under Section 201 IPC. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 5 and got marked Exs.P1 to P27 besides case property, M.Os.1 to 7. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, D.W.1 was examined and Exs.D1 and D2 were marked. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, while acquitting A.Os. 1 and 2 of the offences punishable under Sections 477-A r/w 34 IPC and 201 IPC, convicted and sentenced them as above. Challenging the same, A.Os. 1 and 2 preferred these two appeals. 7. Now the point that arises for consideration is whether the prosecution has proved its case against the appellants-A.Os. 1 and 2 of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act r/w 34 IPC beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Mr. C.Padmanabha Reddy, learned senior counsel appearing for the appellant-A.O.1 in Crl.A.No.1204 of 2002 contended that the evidence of P.Ws. 1 and 2 is mutually inconsistent with regard to date of demand, that every allegation in Ex.P1 was falsified by the evidence of P.W.1, that he was under mental agony as the bill was not passed, a false case was foisted against A.O.1, that the objection taken by A.O.1 even according to the case of the prosecution is valid objection, that the admission made by P.Ws. 1 and 2 with regard to demand is quite contrary to the case of the prosecution, that after following the Government rules in vogue, the bill has been passed, that in view of the fact that there is inconsistency in the evidence with regard to demand, Section 7 of the Act has no application, that as no tainted currency notes have been seized from the possession of A.O.1, he cannot be convicted under Section 13 (1) (d) of the Act and hence, he prays to set aside the convictions and sentences recorded against A.O.1. 9. Mr.T.Bali Reddy, learned senior counsel appearing for the appellant-A.O.2 in Crl.A.No.1201 of 2002 contended that there is evidence on record which would go to show that A.O.2 never demanded any amount for showing any official favour, that he merely acted on the instructions of A.O.1, that as there is no evidence to show that any motive or favour to be shown to P.W.1 was pending with A.O.2, the offence under Section 7 of the Act has not been made out, that in the absence of A.O.2 in the room, M.O.5-tainted currency notes was put in the table drawer and thereafter, P.W.1 took out the original Form No.47 from the rexine bag and admittedly handed over to A.O.2 and therefore, both hand fingers came into contact with the phenolphthalein powder, as a result of which, the solution turned into pink colour in respect of one hand and in respect of other hand, the solution turned into light pink colour, that Section 13 (1) (d) of the Act has no application at all to A.O.2 in view of the fact that he has not obtained any amount for showing any favour, that the evidence of P.Ws. 1 and 2 is mutually contradictory on material aspects, that P.W.1 himself admitted that A.O.2 did not demand any amount and the possibility of planting tainted currency notes in the table drawer of A.O.2 in his absence cannot be ruled out, that the prosecution could not explain as to how the original Form No.47 was with P.W.1, that these aspects have not been considered by the trial Court and came to a wrong conclusion and hence, he prays to set aside the convictions and sentences recorded against A.O.2. 10. On the other hand, Mr.V.Ravi Kiran Rao, learned standing counsel appearing for ACB cases contended that absolutely, there is no grouse or enmity for P.W.1 to foist a false case against A.Os.1 and 2, that after presenting the bill as directed by A.O.1 and as informed by P.W.2, P.W.1 went and met A.O.1 two or three days after presenting the bill, that at that time A.O.1 demanded 10% of the bill amount towards bribe for passing the bill, that as P.W.1 was not willing to pay the amount, A.O.1 took an objection stating that the bill has to be pre-audited by the District Treasury Officer, that sometime thereafter, when P.W.2 went to the office, A.O.1 asked him to pay that amount so that he will pass the bill of P.W.1, that one day prior to the trap when P.Ws. 1 and 2 went to the office of A.O.1, he demanded P.W.1 to pay at least Rs.2,000/- and even that amount has not been agreed to pay, A.O.1 demanded Rs.1500/- to be payable on the next day, that A.O.1 instructed A.O.2 to receive the amount and process the bill, that A.O.2 received the amount for the benefit of A.O.1 which act squarely falls under Section 13 (1) (d) (iii) of the Act, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced A.Os. 1 and 2 and absolutely, there are no grounds to interfere with the same. 11. The essential ingredients of Section 7 of the Act are: a. that the person accepting the gratification should be a public servant; b. that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person. 12. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 13. Prior to the trap, P.W.1 worked as Physical Director in Government Junior College, Subbavaram, from October, 1986 to November, 2000. While he was working there, the Government issued orders stating that he shall be paid salary on par with the salary of a Junior Lecturer working in the college. Therefore, he submitted an application to the Principal of the college. In pursuance of his application, P.W.2 who was working as Senior Assistant in the same college presented the bill to the Sub Treasury Office, Anakapalli. P.W.2 informed P.W.1 that A.O.1 (Sub-Treasury Officer) wanted him to meet in the office. It is not in dispute that A.O.1 was working as Sub-Treasury Officer at Anakapalli, whereas A.O.2 was working as Senior Accountant in the same office. Two or three days after the intimation given to P.W.2, P.W.1 went to Sub-Treasury Office and met A.O.1. At that time, it is alleged that A.O.1 demanded to pay 10% of the bill amount in order to pass the bill. When P.W.1 questioned as to why he has to pay 10% of the bill amount as the bill was in proper order, A.O.1 reiterated his demand to pay 10% of the bill amount and P.W.1 stated to A.O.1 that he could not pay that amount as demanded by him. One day thereafter, P.W.2 informed him that A.O.1 objected for passing his bill on the ground that the bill has to be sent for pre-audit. It is not in dispute that the bill of P.W.1 was presented for the first time on 21-11-1996. It is the further case of the prosecution that when P.W.1 refused to pay 10% of the bill amount, A.O.1 took an objection that the bill has to be pre-audited by the District Treasury Officer. Therefore, the bill was presented to the District Treasury officer (for short ‘D.T.O.’) for the purpose of pre-audit. It is not in dispute that D.T.O. took another objection that adhoc sanction of the Head of the Department is necessary. There is no dispute that the objection taken by A.O.1 and objection raised by D.T.O. are in accordance with rules in vogue. It is also not in dispute that with regard to payment and arrear bill after fixation of pay, the Government issued memo No.44942/358/A2/TFR/96, dated 04-02-1997. The above memo is clear that arrear claim can be made from the date of sanction or from the date of preparing the bill that should be within six months. There is no evidence on record to show that on what date, the memo has been received by the D.T.O. or A.O.1 because Ex.D2 does not contain the seal of the office and initial of the officer with date who received it. Be that as it may be, the fact remains objection taken by A.O.1 and when it was sent to D.T.O., another objection taken by D.T.O. found to be valid objections. According to the case of the prosecution, A.O.1 took an objection because P.W.1 refused to pay 10% of the bill amount as demanded by him. 14. It is not in dispute that D.T.O. has taken an objection that adhoc sanction by the head of the department is necessary. One month after the objection was taken, A.O.1 informed P.W.2 when he went to the office and enquired A.O.1 with regard to the bill of P.W.1. At that time A.O.1 advised P.W.2 to present the bill one month thereafter by referring to Court orders and also after changing Form No.47. Then P.W.2 put up a note before the Principal on 02-02-1997 and accordingly presented the bill on 05-02-1997 in the office of A.O.1. Token No.203, dated 05-0-1997 was assigned to the bill. A.O.1 also advised P.W.2 to change Form No.47. After bringing it to the notice of the Principal, he obtained signature in Form No.47 with date 05-02-1997 and enclosed to the bill. At that time, it is alleged that A.O.1 again wanted P.W.1 to meet him. As per the instructions of A.O.1, P.Ws. 1 and 2 went to the office of A.O.1 on 19-02-1997. As A.O.1 was on leave, they both went to the office on the next day. At that time, it is alleged that A.O.1 stated that had they paid 10% of the bill amount as demanded by him earlier, the bill would have been passed long back and P.W.1 could have avoided in going around the office. At that time again A.O.1 told P.W.1 to pay at least Rs.2,000/- for passing the bill. When P.W.1 pleaded that he could not pay the amount, A.O.1 demanded him to pay at least Rs.1500/-. Unless they pay the demanded amount, the bill would meet the same old fate. He also directed P.W.1 to pay that amount to A.O.2. When P.W.1 agreed to pay that amount, A.O.1 instructed A.O.2 stating that P.W.1 would bring Rs.1500/- on the next day and he may process the bill after P.W.1 brought the amount. Not willing to pay that amount, P.W.1 went to Visakhapatnam and lodged Ex.P1-complaint with P.W.5. P.W.5 directed him to bring the amount on the next day and he secured the presence of P.W.3 and another. After duly