HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2173 OF 2004 Dated 31-03-2011 Between: Sattenapalli Koteswara Rao ……..Appellant And: The State of A.P., rep. by the Standing Counsel for ACB. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2173 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for SPE & ACB Cases, Vijayawada in C.C. No.13 of 1995 on 10.09.2004. The appellant herein was prosecuted for the offences under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, the Act). The brief averments of the case of the prosecution are that the brother-in-law of P.W.1 N. Venkateswara Rao, died in a motor accident and a legal heir certificate is required to redeem the gold ornaments from Vijaya Bank, Talaralapalli. Smt K. Padmavathi (P.W.7) sister of P.W.1 gave an application to P.W.1 with a request to submit the same in Mandal Revenue Office, Nuzendla Mandal of Guntur District for obtaining the Legal Heir certificate in her favour and the P.W.1 has presented the said application before the Mandal Revenue Officer, Nuzendla Mandal on 19.9.1994 who in turn entrusted the same to the accused officer (A.O) for enquiry. The A.O went to Jangalapalli and recorded the statement from P.W.7 and then the AO demanded Rs.500/- as gratification other than legal remuneration from P.W.1 for forwarding the said application with favourable remarks and further the AO threatened that the application will not be forwarded unless the demanded bribe amount of Rs.500/- is paid. P.W.1 pleaded his inability to pay the same. P.W.1 subsequently came to know that the application is pending with the AO and then he met the AO on 20.12.1994 at 9.00 a.m at his residence at Vinukonda and the AO repeated his earlier request of payment of bribe amount. Then the AO reduced the bribe amount of Rs.500/- to Rs.100/- and instructed P.W.1 to pay the same within two days either at his residence or at his office. Apprehending that the application will not be forwarded unless the bribe amount is paid, P.W.1 agreed to pay the bribe amount to the A.O. As the P.W.1 was not willing to pay the bribe amount to the AO, presented a report to the District Inspector, A.C.B., Vijayawada Range, Guntur on 21.12.1994 at 9.00 a.m and the Deputy Superintendent of Police, ACB, Vijayawada Range registered the report of P.W.1 as Crime No.12/ACB-VJA/94 on 22.12.1994 at 7.00 a.m and arranged a trap against the A.O on 22.12.1994. On 22.12.1994 at 11.15 a.m, the AO was trapped by the DSP, A.C.B., Vijayawada Range at his residence at Vinukonda when the AO demanded and accepted bribe amount of Rs.100/- from P.W.1 in the presence of mediator. The tainted amount of Rs.100/- was recovered from A.O and the sodium carbonate solution test conducted on both the hand fingers, inner linings of the left front shirt pocket of AO proved positive. The accused was arrested and released on bail. Hence, the accused was prosecuted for the offences under Sections 7, 11 and 13(2) read with 13(1)(d) of the Act. The learned Special Judge has framed the charges against the accused under Sections 7, 13(2) read with 13(1)(d) of the Act and the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges examined P.Ws.1 to 8 and got marked Exs.P.1 to P.19, X.1 and M.Os.1 to 10. The accused in defence examined D.W.1 on his behalf. The learned Special Judge after taking into consideration of both oral and documentary evidence, found the accused guilty for both the offences under Sections 7 and 13(1)(d) and read with 13(2) of the Act and convicted and sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs.1,000/- for each of the charge. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the charges under Sections 7 and 13(1)(d) and read with 13(2) of the Act against the accused beyond reasonable doubt? The learned counsel for the appellant has pleaded that the P.W.7 who is the applicant has submitted the application for issuance of the legal heir certificate of her husband has not stated any thing about giving the application or the investigating agency recorded her statement and whereas the P.W.1 has stated about the accused officer visiting their village and enquiring and recording the statement of P.W.7. He also pleaded that in the evidence of P.W.1, there are number of contradictions and as such his evidence cannot be relied upon and he also pleaded that the prosecution has failed to establish that there is demand and acceptance of the bribe amount by the AO and on the other hand, the AO could able to establish that he has received the amount towards the repayment of loan given by him to P.W.1 one week prior to the date of said trap. The learned counsel for the appellant has further pleaded that the P.W.1 has given the place of trap as the office of the AO at Vinukonda whereas the other witnesses have stated that the trap has taken place at his residence. Therefore, it is doubtful whether the trap was conducted either at his residence or in the office and as such the benefit of doubt to be given to the accused officer. The learned Standing Counsel for the A.C.B, on the other hand, has pleaded that the evidence of P.W.1 is supported by the evidences of P.Ws.3, 4 and 5 and the factum of demand and acceptance of the illegal gratification by AO was established and the minor discrepancies in the evidence of P.Ws.1 and 7 are not fatal to the case of the prosecution. He further pleaded that the accused has not given any spot explanation with regard to defence set up by him and could not elicit in the cross- examination of any of the witnesses, it is not stated that the D.W.1 was present along with the A.O, and so the defence version cannot be accepted. According to the prosecution, P.W.1 has given the application of P.W.7 to the M.R.O., for issuance of legal heir certificate for the death of her husband on 19.9.1994 and he in turn entrusted the same to the AO for enquiry and the AO went to Jangalapalli village and recorded the statement of P.W.7 and demanded bribe amount of Rs.500/- for forwarding the said application with favourable remarks. Thereafter, the P.W.1 approached the AO on 20.12.1994 and the AO has repeated the same and ultimately the AO has reduced the bribe amount to Rs.100/- and instructed him to pay the same within two days. Thereafter the P.W.1 has lodged a complaint with the Inspector of A.C.B on 21.12.1994 and thereafter on 22.12.1994, the DSP, ACB, Vijayawada Range has arranged the trap and the trap was successful and the tainted amount was recovered from the possession of the AO. The complainant as P.W.1 has stated about his sister making an application to the M.R.O for issuance of the legal heir certificate for the death of her husband in a motor vehicle accident and according to him, the husband of his sister by name Venkateswara Rao died in a motor vehicle accident. His brother- in-law mortgaged gold ornaments in Vijaya Bank, Talaralapalli. After his death, he paid a sum of Rs.8,000/- for redeeming the gold ornaments. The Bank authorities insisted him to produce legal heir certificate. His sister Kuchipudi Padmavathi presented an application in M.R.O Office, Nugendla, Guntur District. He took the said application and presented the same on 19.9.1994. M.R.O., informed that he will send the application of his sister to Revenue Inspector for enquiry. One week or 10 days after it, R.I Koteswara Rao (AO) came to Janagalapalli for enquiry, where his sister residing. He was also present at that time. After conducting enquiry, RI obtained the thumb impression of his sister and himself on some papers. He called him aside and informed that if he pays Rs.500/- he would recommend for issuance of legal heir certificate. A.O is the RI who came for enquiry and who demanded Rs.500/- as bribe for recommending issuance of legal heir certificate. He do not remember the date when he visited the village for enquiry. He informed the AO that he has no capacity to pay the bribe amount and requested him to submit his report. He did not agree for his request. He had informed that unless he pays the amount, he would not recommend for issuance of legal heir certificate. Twenty days after it, he went to the M.R.O office and came to know that the application of his sister did not reach their office from the AO. Three months later, he met the AO at his residential room and requested him to recommend for issuance of legal heir certificate. The AO informed him that unless he pay at least Rs.200/- as bribe, he will not submit his report. Then he informed the matter to his sister K. Padmavathi and she expressed her inability to pay the demanded bribe amount. Then he approached the Inspector of Police, ACB, Guntur on 21.12.1994 in the morning hours and presented a written report. Ex.P.1 is the report. Ex.P.2 is the application signed by his sister for issuance of legal heir certificate. Twenty days prior to presenting report, he made a written representation before the RDO, Narasaraopet complaining about non-issuance of legal heir certificate. After going through the contents, the Inspector questioned him whether the contents of Ex.P.1 are true. He informed him that the contents of Ex.P.1 are true and correct. Inspector of Police, ACB asked him to meet him in his office in the evening along with Rs.100/- which he intended to pay as bribe to the A.O. Accordingly, at about 5.00 or 6.00 p.m he met the Inspector of Police, ACB, Guntur in his office. He asked him to come along with bribe amount of Rs.100/- to the Z.P Guest House on the next day morning. In pursuance of it, he went to the ZP Guest House, Guntur along with the bribe amount of Rs.100/- and then ACB officials introduced him to the DSP, A.C.B. One hour after, DSP called him into the Guest house and introduced the mediators and other officers to him and vise versa. As per the instructions of DSP, he handed over one hundred rupee note to one of the constable and he took the amount and applied some powder to it. At about 8.00 or 8.30 a.m, they all started in a Government Jeep and reached Vinukonda at about 10.30 a.m and stopped their vehicle near Karuna Nursing home. Then by walk, they went to the RI’s office which is at a distance of one furlong. One of the mediators accompanied him. He found the AO sitting in a chair in his office. On seeing him, the AO questioned him whether he brought the bribe amount. He informed him that he brought the amount and so saying he handed over one hundred rupee note to the AO and he received the tainted amount and kept the same in his shirt pocket. The mediator who followed him also present when the AO demanded and received bribe amount of Rs.100/- from him. In the cross-examination, he has stated that he drafted Ex.P.2. His sister affixed her thumb impression on it. He admitted that the purpose for which they require legal heir certificate is not mentioned in Ex.P.2. He also admits that the date of drafting and presenting the report is not mentioned in Ex.P.2. He admits that in Ex.P.1, it is mentioned that the AO came to Jangalapalli five days after forwarding application to him by the MRO but not mentioned that he came to their village Jangalapalli 7 or 10 days after it. He admits that he did not mentioned in Ex.P.1 that the AO obtained thumb impressions of his sister and his signatures after enquiry. He admitted that in Ex.P.1 it is mentioned that he enquired about his application on 20.12.1994 but it is not mentioned specifically in Ex.P.1 that he requested him to recommend for issuance of legal heir certificate. He admitted that the house of the AO is situated in Kothapet of Vinukonda and whereas the M.R.O office is situated in Nugendla which is at a distance of 14 or 15 k.ms. Therefore, according to P.W.1 after giving the application to the M.R.O., the M.R.O in turn entrusted the same to AO for enquiring into the matter and the AO came to their village and enquired into the matter and obtained the signatures of P.W.7 on some papers and at that time he demanded for payment of Rs.500/- as bribe for sending the favourable report and subsequently on 20.12.1994 he met the AO at his residence and enquired him about the report and then AO said that unless he pays Rs.500/-, he will not forward the application and finally reduced the amount from Rs.500/- to Rs.100/-. P.W.7 is the sister of P.W.1 who has made the Ex.P.2 application has stated that the P.W.1 informed her that one officer is demanding bribe amount. She do not remember whether any officer came and recorded her statement. She do not know about submitting of any application to any department as her brother was looking after all the affairs. She do not remember the cadre of the officer who demanded bribe amount. No officer from any department came and recorded her statement. Basing on the evidence of P.W.7, the learned counsel for the appellant has pleaded that she has not supported the case of the prosecution, but the said contention of the learned counsel for the appellant cannot be accepted because P.W.7 has not denied about her giving application and some officer demanding the bribe amount but she has stated that she did not remember about the cadre of the officer who demanded the bribe amount and she also stated that she do not remember whether any officer came and recorded her statement and she has specifically stated that her brother P.W.1 is looking after all her affairs. Therefore, as P.W.1 is looking after the affairs of P.W.7, she might not have remembered all these things about demand of the bribe amount by the AO. With regard to P.W.1 giving the application on 19.9.1994 to the M.R.O., the prosecution examined P.W.4 T. Girinadha Sarma, the then M.R.O, Nugendla and he admitted about receiving of the application Ex.P.2 from P.W.1 for issuing of legal heir certificate in favour of K. Padmavathi for the death of her husband and according to him, the note was put up on 20.9.1994 and it was approved by him on 24.9.1994. On the next day, i.e., on 25.9.1994, he was transferred to Alluru Mandal, Nellore District. There is nothing in the cross-examination to disbelieve his evidence with regard to his receiving the application on 19.9.1994 from P.W.1. The Junior Assistant who has processed the application of P.W.1 and put up before the M.R.O was examined as P.W.3. According to him he was working as Junior Assistant from 1992 to 1999 in the office of M.R.O., Nugendla, Guntur District. He was looking after the B-Seat, Village Administration, Establishment and Legal Heir certificates during the said period. He know the AO who worked as RI, during the said period. According to him, MRO received Ex.P.2 on 19.9.1994 and put his initial on it. On 20.9.1994, he put up a note to transmit the same to AO for enquiry. MRO signed on the said note on 24.9.1994. The same was handed over to AO on 28.9.1994. In the cross-examination, he admitted that there will be date stamp with initial of M.R.O on each and every application received by MRO. Ex.P.2 bears the initial of M.R.O with the date of 19.9.1994, but it does not contain the date stamp and MRO seal. He admitted that Ex.P.2 does not contain the date when it was signed by the applicant and also address particulars of the applicant. Therefore, according to P.W.4 and P.W.3, it is evident that the application was received by P.W.4 on 19.9.1994 and the same was processed by P.W.3 and handed over the same to the AO on 28.9.1994. According to the Investigating Officer P.W.8, he seized the attendance register Ex.P.19 for the year 1994. As per Ex.P.19, the AO was on duty on 29.9.1994. Therefore, the said factum of handing over the application of P.W.7 to the AO on 28.9.1994 is established as he was present in the office on that day as per Ex.P.19. Therefore, the factum of entrusting the application of P.W.1 to the AO for enquiry with regard to the issuance of legal heir certificate of P.W.7 was established by the prosecution. According to P.W.1, the AO has demanded Rs.500/- when he visited the Jangalapalli for enquiry by calling him aside and when he did not agree to pay the same, the AO threatened that unless he pays the bribe amount, the application will not be forwarded. Twenty days thereafter, he went to M.R.O office and came to know that the application was not forwarded by the AO along with his report. Three months later he approached the AO at his residence and requested him for forwarding the report for issuance of legal heir certificate and at that time, the AO has reduced the amount of bribe from Rs.500/- to Rs.100/- and he is not willing to pay the said amount he lodged a complaint with the Inspector of Police, A.C.B, Vijayawada Range, Guntur District on 21.12.1994. Ex.P.1 is the report given by the P.W.1 to the ACB. Wherein he has narrated all the facts as mentioned in his evidence. With regard to the accused visiting the Jangalapalli village and demanding to pay Rs.500/- as bribe for issuance of legal heir certificate, P.W.1 specifically stated about the same and the same was also mentioned inhis report Ex.P.1. Even though P.W.1 did not state about the same specifically it is established from the evidence of P.W.1. P.W.1 has further stated that he met the AO on 20.12.1994 at his residence and the AO demanded to pay bribe amount of Rs.500/- and he expressed his inability to pay the same the AO asked to pay at least Rs.100/- and asked him to pay the same within two days either at his residence of at his office. Therefore, from the evidence of P.W.1 and Ex.P.1, it is evident that the accused has demanded Rs.500/- initially and thereafter reduced the same to Rs.100/- on 20.12.1994. According to P.W.1 he lodged the complaint with the Inspector of Police, A.C.B on 21.12.1994 and he asked him to come on the next day morning to Z.P. Guest House, Guntur along with bribe amount and thereafter the DSP has arranged a trap on the accused and according to P.W.1 he along with P.W.2 gone to the office of the AO at Vinukonda and the AO demanded for payment of bribe amount and he handed over the tainted amount of Rs.100/- to the AO and he received the same and kept the same in his shirt pocket. P.W.2 who is the mediator for the trap was present along with P.W.1 at the time of payment of demanded bribe amount by P.W.1 to the AO has also supported the version of P.W.1 with regard to the AO demanding and P.W.1 paying Rs.100/- to the AO. But according to P.W.2, the trap was conducted at the house of the AO. The Investigating Officer P.W.8 also stated that the trap was conducted at the house of the AO at Vinukonda but whereas P.W.1 has stated that they went to the office of the AO on the date of trap along with P.W.2. Basing on the said contradictions in the evidences of P.Ws.1,2 and 8, the learned counsel for the appellant has pleaded that the conducting of trap is doubtful. On the other hand, the learned Standing Counsel for the A.C.B has pleaded that the P.W.1 was examined after nine years of the said trap and there might be some minor contradictions with regard to the details of the trap and admittedly there is no office of the AO at Vinukonda, the question of going to the office of the AO at Vinukonda does not arise and the trap was conducted at the house of the AO as stated by P.W.2. According to the prosecution, the trap was conducted on 22.9.1994 whereas P.W.1 was examined on 10.9.2003 i.e., after about 9 years of the trap. Therefore, there is possibility of confusing with regard to the place of conducting the trap. More over the P.W.1 in the cross-examination has admitted that the house of AO situated in Kothapet, Vinukonda whereas the M.R.O office is situated at Nugendla which is at a distance of 14 or 15 k.ms. Therefore, P.W.1 has categorically admitted that the office of AO is not at Vinukonda but he is only residing at Vinukonda. Therefore, the trap was conducted at the house of the AO at Vinukonda as stated by P.W.2 and P.W.8. Therefore, the said contradiction is not fatal to the case of the prosecution. With regard to the demand and acceptance of the bribe amount by the AO, P.W.1 has categorically stated that the AO has enquired him about the brining of the amount demanded by him and immediately he given tainted amount of Rs.100/- to the AO and he has received the same and kept it in his shirt pocket. The said version of P.W.1 was also supported by P.W.2 who is the mediator who accompanied with P.W.1. Further, P.W.2 has stated that after P.W.1 giving signal, DSP with trap party has entered into the room and DSP has conducted the sodium carbonate solution test and the same gave positive result and on demand the AO has produced Rs.100/- note from his pocket of his shirt. M.O.1 is the said Rs.100/- currency note. A.O also produced 6X50 denominations and 1 X 10/- denomination notes from his left side shirt pocket. They verified the tainted Rs.100/- note and found the same tallied with the number noted in Ex.P.5. Thereafter they returned the remaining currency notes to the AO. P.W.8 is the Investigating Officer has categorically stated about the conducting of the trap and recovering the amount from the possession of the AO. Therefore, from the evidence of P.Ws.1 and 2 and 8, it is established the demand and acceptance of the bribe amount by the AO. Hence, the presumption under Section 20 of the Act is available for the prosecution. The learned counsel for the appellant has pleaded that mere recovery of the amount is not sufficient to convict the accused for the offence under Section 7 of the Act and in support of his contention, he relied upon a decision rendered in C.M. Girish Babu and C.B.I, Cochin[1] wherein the Apex Court has held: “Mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe.” In the present case as observed above, from the evidence of P.Ws.1 and 2, it is established that the accused has received the bribe amount voluntarily from the P.W.1 and the same was also recovered from his possession by P.W.8. Therefore, the above said decision relied upon by the learned counsel for the appellant is not applicable to the facts of the present case. With regard to acceptance of the amount by the AO, the learned counsel for the appellant has pleaded that the said amount was received by the AO as repayment of the loan amount as P.W.1 has taken an amount of Rs.100/- from him one week prior to the trap and on the date of trap he has repaid the said amount. In support of his contention he examined D.W.1