THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 1403 OF 2002. DATED: 05-11-2009. Between: T.Krishna Murthy … Appellant/Accused and State- C.B.I. represented by the Special Public Prosecutor for CBI Cases, Hyderabad … Respondent/Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 1403 OF 2002. JUDGMENT: This Criminal Appeal by the appellant-accused under Section 374 (2) Cr.P.C., is directed against the judgment, dated 09-12-2002, in C.C. No. 3 of 2001, on the file of the Special Judge for CBI Cases, Visakhapatnam, whereunder and whereby the accused was convicted of the offences punishable under Sections 7 and 13 (1) (d) (ii) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.2,000/-, in default to undergo Simple Imprisonment for a period of three months under each count. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: PW1 is the de facto complainant, PW.2 is pre and post trap mediator and PWs.3 and 4 are the CBI Inspectors who investigated the case. P.W.1 applied for a telephone connection under Ex.P1 application form for his residence and it was installed in his house by the appellant (hereinafter referred to as ‘accused officer’). The accused officer demanded Rs.500/- as bribe for giving telephone connection, but when P.W.1 expressed his inability to pay the said amount, the accused officer left without giving connection. Finally on 12-9-2000 the accused officer came to the house of P.W.1 and demanded the bribe amount of Rs.500/- and asked him to pay the said amount by the evening of 14-9-2000 at there only. As P.W.1 was not interested to pay the bribe as demanded by the accused officer, lodged a report Ex.P.4 to P.W.3 C.B.I. Inspector who was camping at Salur on 14-9-2000. P.W.3 directed him to come along with Rs.500/-. Meanwhile P.W.3 requisitioned the service of PW.2 and another. At about 2 P.M., all of them assembled at the guest house and P.W.1 handed over the currency notes. Phenolphthalein powder was applied to the notes and pre trap proceedings were prepared under Ex.P.6. At about 3.15 P.M. all of them proceeded and reached the out skirts of Makkuva village. At about 4.15 P.M. P.Ws.1 and 2 went inside the house of P.W.1 and others were taking positions outside the house. At about 5.15 P.M. the accused officer came to the house of P.W.1 and enquired P.W.1 whether his telephone is working properly without any defects. Then P.W.1 requested the accused officer to reduce the bribe amount, but the accused officer told that the amount cannot be reduced and if the amount is not paid, the telephone connection will be disconnected. Then P.W.1 took out the tainted amount from his shirt pocket and handed over the same to the accused officer. After counting the amount, the accused officer kept the amount in his shirt pocket. The accused officer considering the financial position and the old age of P.W.1, took out one hundred rupee note out of the said amount from his shirt pocket and returned the same to P.W.1. At that stage PW.2 went out side and gave pre-arranged signal. Then P.W.3 and other trap party rushed into the house of P.W.1. The hand fingers of the accused officer were subjected to phenolphthalein test and the test proved positive. P.W.3 seized the tainted amount of Rs.400/- from the accused officer and Rs.100/- from P.W.1 and prepared post trap proceedings under Ex.P.7. During the course of investigation P.W.4 Inspector, CBI examined the witnesses and recorded their statements. After obtaining the sanction order Ex.P.9, P.W.4 filed the charge sheet. 3. The learned Special Judge framed the following charges against the accused officer: CHARGE NO.1: That you on 14.9.2000, at the residence of the complainant Lingam Mohan Rao, Komati Veedhi, Makkuva, being a public servant employed as Lineman of Makkuva Telephone Exchange, Mandasa Mandal, Srikakulam District, demanded and accepted Rs.500/- as bribe from Lingam Mohan Rao, as gratification other than legal remuneration, as a motive or reward for official favour, in the exercise of your official functions for attending the telephone repairs and not to disconnect the connection and retained Rs.400/- out of total amount of Rs.500/- and returned Rs.100/- to the complainant Lingam Mohan Rao out of sympathy towards his old age, and thereby committed an offence punishable under Section 7 of the P.C. Act, 1988, and within my cognizance. CHARGE NO.2: That you on the same day and at the same place as mentioned in charge No.1 supra, being a public servant employed as Lineman of Makkuva Telephone Exchange, Mandasa Mandal, Srikakulam District, demanded and accepted Rs.500/- as bribe from Lingam Mohan Rao, as gratification other than legal remuneration, as a motive or reward for official favour, in the exercise of your official functions for attending the telephone repairs and not to disconnect the connection and retained Rs.400/- out of total amount of Rs.500/- and returned to Rs.100/- to the complainant Lingam Mohan Rao out of sympathy towards his old age, by corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself a pecuniary advantage to the extent of Rs.400/- as bribe, and thereby committed the offence specified in Section 13(i)(d) (ii) of the P.C. Act, 1988 punishable under Section 13(2) of that Act, and within my cognizance. When the above charges were read over and explained to the accused officer in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 4 and got marked Exs.P1 to P13 besides case property, M.Os.1 to 5. 5. After closure of the prosecution evidence, the accused officer was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused officer, D.W.1 was examined, but no documents were marked. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, convicted and sentenced the accused officer as above. Challenging the same, the accused officer preferred this appeal. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused officer of the offences punishable under Sections 7 and 13 (1) (d) (ii) r/w 13 (2) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Learned counsel appearing for the appellant-accused officer contended that P.W.1 is not a truthful witness, that there is no official favour to be shown by the accused officer to P.W.1 was pending, that the version that the accused officer came to the house of P.W.1 is highly improbable, that when the two views are reasonably possible, the view which is favourable to the accused officer should be adopted, that the accused officer received the amount not as a bribe, but as advance tuition amount that was paid to D.W.1 as he was running school, that when the telephone was already installed, question of demanding bribe does not arise, that P.W.2 was deposing false against the accused officer so as to help the CBI, that as the accused officer was slapped by P.W.4 at the time of trap, he could not give spontaneous explanation with regard to receipt of money which was paid by him as advance towards tuition fee and hence, he prays to set aside the convictions and sentences recorded against the accused officer. 9. On the other hand, Mr. T. Niranjan Reddy, learned standing counsel appearing for CBI cases contended that the evidence of P.Ws 1 and 2, who are independent witnesses is very clear that the accused officer demanded Rs.500/- for giving telephone connection as well as maintenance of the telephone, that there is no other reason for them to speak false against the accused officer so as to implicate him in a case of this nature, that the evidence of P.W.4, who is the Trap Laying Officer would go to show that the accused officer was found in possession of tainted currency amount of Rs.400/-, that he took out the currency notes from his short pocket, that the Sodium Carbonate Solution Test proved positive, that P.W.4 has no grouse or enmity against the accused officer so as to implicate him, that as the accused officer himself went to the house of P.W.1 to receive the bribe amount, the trap was laid at the house of P.W.1, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced the accused officer and absolutely, there are no grounds to interfere with the same. 10. 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. 11. 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. 12. P.W.1 is a retired teacher, aged about 76 years by the date of giving evidence. He applied for a telephone connection for his residence under Ex.P1 application. As per Ex.P2-demand notice, he sent demand draft for Rs.500/-. Thereafter, he received Ex.P3 advice note. The department people installed the telephone at his residence. The accused officer demanded bribe of Rs.500/- for giving telephone connection. When he expressed his inability, the accused officer left without giving connection. Finally on 12-09- 2000 the accused officer came to his house and demanded for payment of bribe of Rs.500/- and asked him to pay the said amount by the evening of 14-09-2000 at his house and went away. As he was unwilling to pay the said amount, he lodged Ex.P4 complaint with P.W.3, who called P.W.2 and prepared Ex.P6-pre- trap proceedings duly applying phenolphthalein powder to the currency notes and duly noting down the numbers of the currency notes. P.W.1 was asked to give the amount on demand made by the accused officer. On 14-09-2000, the trap party and mediators along with P.W.1 went to the house of P.W.1. P.W.2 accompanied P.W.1. At about 5 P.M. the accused officer came to the house of P.W.1 and asked P.W.1 as to whether his telephone was working properly without any defects. Then P.W.1 stated that he was not in a position to give Rs.500/- and requested him to reduce the bribe amount. Then the accused officer stated that if P.W.1 fails to pay the bribe amount, the telephone connection will be disconnected. P.W.1 took out the amount from his shirt packet and handed over the same to the accused officer who received and counted the amount and kept in his shirt pocket. The accused officer told him that he had sympathy to his old age and financial problem and took out one hundred rupee note out of Rs.500/- and returned to P.W.1. P.W.1 received the same and kept in his shirt pocket. When P.W.2 gave pre-arranged signal, the trap party came and caught hold of the accused officer, who produced tainted currency notes of Rs.400/- from his shirt pocket. P.W.4 got prepared solution in two glass tumblers. When the accused officer got dipped his fingers of both of his hands separately in the solutions of two glass tumblers, the solution turned into pink colour. Similarly when the inner lining of the shirt pocket of the accused officer was subjected to Sodium Carbonate Solution Test, the solution turned into pink colour. Thereafter, Ex.P7 post-trap proceedings were drafted. Even the accused officer has not denied or disputed about taking out the tainted currency notes from the shirt pocket and giving it to the Inspector, but his contention is that he received the tainted currency notes from P.W.1 as he did not want to continue his children in the tuition of D.W.1. Therefore, P.W.1 returned the advance tuition fee of the children of the accused officer. 13. P.W.2 is an independent witness who accompanied P.W.1 to his house and waiting for arrival of the accused officer. His evidence would go to show that the accused officer came on the bicycle to the house of P.W.1 and entered the house. The accused officer asked P.W.1 whether the telephone is working properly and asked money to be paid to him. When P.W.1 pleaded that he was not in a position to pay Rs.500/- and requested to reduce the amount, the accused officer told him that if P.W.1 fails to pay the bribe amount, the telephone connection will be disconnected. Considering the age of P.W.1 and his financial position, the accused officer returned one hundred rupee note to P.W.1. Then P.W.2 gave pre-arranged signal. 14. The evidence of P.Ws. 1 and 2 is very clear that the accused officer demanded Rs.500/- and if he failed to pay the amount, the accused officer would disconnect the telephone connection. No doubt, there is a discrepancy with regard to installing the telephone. Learned counsel appearing for the accused officer contended that the telephone was already installed and hence, question of giving any telephone connection does not arise. In the earliest report Ex.P4, it is stated that the accused officer installed telephone connection to the house of P.W.1 and demanded bribe of Rs.500/- and if P.W.1 fails to pay that amount, the accused officer will trouble him without attending the telephone repairs and disconnect the telephone connection. But in the evidence, P.W.1 stated that for giving connection, the accused officer demanded the bribe amount. However, the fact remains, the accused officer is the person who installed the telephone in the house of P.W.1 prior to the trap. P.Ws. 1 and 2 are totally independent witnesses. If there is any grouse or enmity for them to speak false against the accused officer, then certainly their evidence has to be scrutinized carefully and cautiously. P.W.1 who is aged about 76 years and a retired teacher has no grouse or enmity against the accused officer to implicate him in a case of this nature. 15. According to D.W.1, who is the son of P.W.1, his father was not in the habit of giving false complaint or false evidence against anybody. If really, the contention of the learned counsel appearing for the accused officer is to be accepted that he received the amount from P.W.1 towards advance tuition fee, there is absolutely no reason for P.W.1 to speak false saying that the accused officer demanded money especially in view of the fact that he was not in the habit of giving false complaint or false evidence against any body. 16. The evidence of P.Ws. 1 and 2 is very clear that the accused officer demanded bribe of Rs.500/-. The accused officer threatened P.W.1 that if P.W.1 fails to pay the amount, the telephone connection will be disconnected. Though they were cross-examined at length, nothing was elicited to discredit their testimony. The evidence of P.Ws. 1 and 2 is consistent with regard to demand made by the accused officer on 12-09-2000 at about 5.00 P.M. Similarly, the evidence of P.W.1 would go to show that the accused officer demanded to pay Rs.500/- on 12-09-2000 for giving telephone connection. Some variations, which are trivial in nature with regard to official favour to be shown by the accused officer cannot be a ground to discredit the testimony of P.Ws. 1 and 2. The evidence of P.W.1 is that the telephone connection has not been given, but if the entire evidence of P.W.1 is taken into consideration, the telephone connection has already been given prior to the trap. That is the reason why, the accused officer asked P.W.1 whether the telephone was working properly or not. The specific case of the prosecution on the date of trap is that if P.W.1 fails to pay Rs.500/-, the telephone connection will be disconnected. Section 7 of the Act reads that not only official favour to be shown, but also for doing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person attract penal consequences. The service is to provide telephone connection and disservice is to disconnect telephone connection. Therefore, the contention of the learned counsel appearing for the accused officer that there is no official favour to be shown to P.W.1 by the accused officer was pending cannot be accepted. Threatening P.W.1 by the accused officer to disconnect the telephone connection, amounts to disservice within the meaning of Section 7 of the Act. Therefore, the contention of the learned counsel appearing for the accused officer on this aspect is wholly untenable and devoid of merit. 17. The evidence of P.Ws. 3 and 4 would go to show that the accused officer produced Rs.400/- from his shirt pocket and the currency note numbers were tallying with the numbers as noted in Ex.P6-pre-trap proceedings. It is not in dispute that the accused officer received the amount from P.W.1, but his contention is otherwise. If really, the accused officer received the amount of Rs.500/- in the first instance and later returned Rs.100/- to P.W.1, he would have informed the same to Trap Laying Officer when he was questioned after conducting Sodium Carbonate Solution Test. The accused officer has not given any spontaneous explanation to P.W.4 to show that he received the amount not by way of bribe, but otherwise. Both hand fingers of the accused officer turned into pink colour when subjected to Sodium Carbonate Solution Test. Similarly, the inner lining of the shirt pocket of the accused officer when subjected to Sodium Carbonate Solution Test turned into pink. 18. Learned counsel appearing for the accused officer relied on a decision reported in STATE OF A.P. V T.VENKATESWARA RAO [1], wherein it was held thus: “Their evidence only establishes the fact that when they entered the house, Rs.400 was recovered from under the mattress in the bed-room of the respondent and on testing the respondent’s hand tested positive for having handled the tainted money. The evidence even if it is accepted as true would not lead to an irresistible conclusion that this money was received by the respondent as bribe money because of the explanation given by the respondent wherein it is stated that the money in question was kept in advance by PWs. 1 and 2 before his arrival in the house and he was asked to bring that money by PWs 4 and 5 when they came to his house which he did. Because of his handling the currency, he came in contact with the phenolphthalein powder. Bearing in mind the findings of the High Court in regard to the genesis of this bribery demand we think the explanation given by the respondent by way of defence and supported by evidence cannot be rejected as improbable or farfetched.” In this case the facts are entirely different. There is evidence on record in that case that the tainted currency notes have been kept under the mattress of bed-room. In this case the accused officer demanded Rs.500/- from P.W.1 in the presence of P.W.2. The evidence of P.Ws. 1 and 2 is cogent consistent and trustworthy. There is no other reason to disbelieve the evidence of P.Ws. 1 and 2 with regard to demand and acceptance. Hence, the above decision has no application to the present facts of the case. 19. Learned counsel appearing for the accused officer contended that when two views are reasonably possible on the evidence adduced by the prosecution, the view, which is favourable to the accused officer should be adopted. He also contended that the burden of proving the case of the accused officer is not so onerous as lies on the prosecution. There cannot be any dispute that the prosecution has to establish the case beyond all reasonable doubt, whereas the accused officer can show by preponderance of probability about his case. The golden rule that was passing through the web of Criminal Justice System is that when two views are reasonably possible, the view which is favourable to the accused should be adopted, but at the same time the plea taken by the accused officer should not be on surmises and conjectures because surmises and conjectures have no role to play in Criminal Justice System. To know whether the plea of the accused officer is reasonably possible or not, it has to be seen the evidence of D.W.1. 20. D.W.1 deposed that his father was running a school in the village and he along with some other teachers were giving tuition to the students. According to him, children of the accused officer joined in the month of June, 2000 for taking tuition and he collected Rs.500/- advance from the accused officer. In the month of August, 2000, the accused officer informed D.W.1 that as his children would not come to tuition from next month onwards, he asked him to pay back the advance amount of Rs.500/-. Again the accused officer told him that he would send his children for tuition till the end of September, 2000. In that connection the accused officer used to ask P.W.1 for return of advance amount paid by him. So the case of the accused officer is that he received the amount, which was the amount paid by him to D.W.1 towards advance for the tuition of his children. D.W.1 categorically admitted that the tuition fee would be refunded only when the father of the children transferred from that place. When father of the children was not transferred, question of returning the tuition fee does not arise. In such a case, students have to necessarily take tuition till the amount of advance was exhausted. Admittedly, the accused officer was not transferred from that place and therefore, question of returning the tuition fee does not arise. D.W.1 also admitted that his father was not in the habit of giving false complaint or false evidence against anybody. Admittedly, D.W.1 was present when P.W.1 was giving evidence. He knows about P.W.1 giving complaint to C.B.I. As a matter of fact, he assisted his father before giving evidence as he was old and sick. Therefore, he would have objected his father to give false evidence against the accused officer. He has not raised his little finger at any point of time. He did not inform his father about the accused officer paying advance of Rs.500/- to him towards tuition fee and he did not inform CBI officials about the accused officer paying amount of Rs.500/- to him towards tuition fee and for the first time, D.W.1 was testifying in the Court. Therefore, much reliance cannot be placed on the evidence of D.W.1. There is no evidence to show that the accused officer asked P.W.1 to refund advance amount. It is not suggested to P.W.1 that his children would discontinue the tuition of D.W.1 and asked him to pay the advance amount. As a matter of fact it is suggested that the accused officer demanded his son to pay Rs.500/- paid by him as advance towards tuition fee for his two children. It is suggested to him that CBI officials pressurized to give false evidence against the accused officer, but the same was denied. Absolutely, there is no reason for D.W.1 to speak false against the accused officer. In view of the evidence of D.W.1, advance amount of Rs.500/-, which was paid by the accused officer towards tuition