* HON’BLE SRI JUSTICE B.N.RAO NALLA + Criminal Appeal No.2402 of 2004 % Date 07.09.2011 B e t w e e n: # Nudurupati Venkata Narasimha Sastry (died), rep. by his wife Smt. N.Sitaramalakshmi Appellants/Accused A n d $ State, rep. by Inspector of Police, ACB, Vijayawada. Respondent/Complainant ! Counsel for the Appellant: Sri C.Praveen Kumar ^ Counsel for the Respondent. : Sri.Ghani A. Musa,Spl. P.P. & S.C. for ACB < GIST : > HEAD NOTE : ? Cases referred : Nil THE HON'BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.2402 of 2004 JUDGMENT: This appeal is filed by the appellant-accused aggrieved by the judgment in C.C.No.11 of 1995 on the file of the Special Judge for SPE & ACB Cases, Vijayawada, whereby he was convicted and sentenced to undergo simple imprisonment for a period of one year and also to pay fine of Rs.1,000/-, in default, simple imprisonment for three months for the offence under Section 7 of Prevention of Corruption Act, 1988 (for short ‘the Act’). He was also convicted and sentenced to undergo simple imprisonment for a period of one year and also to pay fine of Rs.1,000/-, in default, simple imprisonment for three months for the offence under Section 13 (i)(d) read with Section 13 (2) of the Act, inter alia, on the ground that the trial court has erred in appreciating the evidence of the witnesses and other material brought on record and came to a wrong conclusion in holding the appellant-accused guilty for the aforesaid offences and thereby erroneously convicted and sentenced as stated herein above. 2. The facts in brief are: The appellant-accused has worked as Deputy Commercial Tax Officer-II (D.C.T.O.) at Gudivada, Krishna district from 06-04-1994 to 09-02-1995 (retired on 31-05-1995). That on 29-12- 1994, the appellant-accused has assessed the turnover of PW-1 who was carrying on Dry Chilli business in the name and style of Eshwar Trading Company, situated at Stadium Complex, Gudivada for the year 1994 at Rs.1,50,000/-. Accordingly, on the same day he has paid the commercial tax thereon for the said year and applied for issuance of ten leaves of way bills under Ex.P-4, for which the appellant-accused demanded a bribe of Rs.1,000/- from him. However, on expressing his inability to pay the same, he was advised to pay the said amount in two instalments @ Rs.500/- per month. Accordingly, PW-1 has paid Rs.500/- on the same day to the appellant-accused towards first instalment in the presence of PW-2. 3. That with an intention to avoid the payment of the second installment of Rs.500/-, he approached LW-9-V.V. Nammalwar, D.S.P, A.C.B., Vijayawada on 30-12-1994 and preferred Ex.P-5. Basing on which DSP, ACB registered a case in Cr. No.1/ACB-VJA/95, under Sections 7 and 11 of the Act on 03-01-1995 after verifying the antecedents of the appellant - accused. 4. On 04-01-1995 at about 12.45 p.m., PW-1, accordingly, has paid tainted bribe amount of Rs.500/- to the appellant- accused in his office by placing the same on the right side corner of his table, which the appellant-accused with the help of his two right hand fingers pushed the bribe amount into the drawer. Thereafter responding to the signal given by PW-1, the raid party entered into the office of the appellant- accused and asked him about the bribe amount and the same was recovered from the table drawer. Thereafter the fingers of both the hands of the appellant-accused were subjected to Sodium Carbonate Solution test and on that the right hand fingers of the appellant-accused turned pink (positive). DSP, ACB investigated the case and after obtaining sanction order vide G.O.Ms.No.384 (Revenue CT -I) Dept., dated 3.8.1995, Government of Andhra Pradesh under Ex.P-25 and laid charge sheet into the Court. 5. In order to prove its case, the prosecution had examined PWs.1 to 8 and got marked Exs.P- 1 to P-29 and M.Os.1 to 8 on its behalf. However, no witnesses were examined on behalf of the appellant-accused except marking Exs.D-1 and D-2 relevant portion in the statements of PW-4 recorded under Section 161 Cr.P.C. 6. The trial Court, taking into consideration the evidence of the prosecution witnesses and other material brought on record on either side, found the appellant-accused guilty for the offences and convicted and sentenced him as has already been stated in paragraph No.1, supra. Aggrieved by the same, the appellant-accused preferred this appeal. 7. However, during the pendency of this appeal, as the appellant-accused died, his wife Smt. N.Sitaramalakshmi filed Crl.A.M.P.No.383 of 2007 seeking permission of the Court to come on record as legal heir of the appellant-accused to continue the appeal and the said petition was allowed permitting her to pursue the appeal. 8. It is the case of the appellant-accused that PW-1 stated in his evidence that after fixing his business turnover at Rs.1,50,000/-, he had already paid the commercial tax on 29-12-1994. The appellant-accused wanted to inspect his shop and for that purpose he demanded Rs.1,000/-. However, he expressed his inability to do so. That on the same day, he had applied for way bills and the appellant- accused had informed him that he would give the said bills on payment of Rs.1,000/-. When he expressed his inability, the appellant-accused has informed him to pay Rs.500/- first and PW-1 complied by paying the said amount to him. Later appellant-accused informed him that he would give the way bills to PW-1 as and when the balance amount of Rs.500/- is paid. In this context, it is contended that the evidence of PW-1 contradicted itself from his complaint, Ex.P-5 as to the demand and payment of bribe, it was towards appellant’s inspecting the shop of PW-1 or was it towards issuance of way bills to PW-1. PW-1 has not stated the correct position in his complaint. Therefore, the trial Court ought to have seen the ambiguity in Ex.P-5 complaint and it ought not to have acted upon it. 9. Moreover, PW-1 has not stated in his complaint-Ex.P-5 that PW-2 was present at the time of payment of first instalment of Rs.500/- by him to the appellant-accused. It is a lacuna on the part of the PW-1 and the trial Court failed to take note of the same. Further it is contended that it is also wrongly mentioned in the charge sheet that PW-2 was present at the time of payment of first instalment of the bribe amount by PW-1 to the appellant-accused and that the trial Court also failed to take note of the same. 10. It is pointed out from the evidence of PW-1 wherein he stated that he himself had submitted the business returns for assessment of turnover for the year 1993-1994 on 29-12-1994 showing the turnover at Rs.1,50,000/- and the appellant-accused being D.C.T.O. had accepted the same and accordingly PW-1 had paid the commercial tax thereon. In this context, it is contended that PW-1 did not state in his complaint-Ex.P-5 that he has filed his business returns by fixing turnover at Rs.1,50,000/- and as such, it is possible that the appellant-accused wanted to inspect the shop, stock and the account books of PW-1. 11. It is further pointed out from the evidence of PW-1 that he presented an application for ten leaves of way bills before PW-3, Senior Assistant, whereas as per his complaint-Ex.P-5, the said application was made before the appellant-accused and the appellant-accused demanded the illegal gratification for issuing the same. Therefore, it is contended that the evidence of PW-1 is self-contradictory. 12. It is further pointed out from his evidence that as per the instructions of PW-3, he visited the appellant-accused in his chamber, whereupon he demanded Rs.500/- as gratification for issuing way bills. He also stated in his evidence that when the appellant-accused demanded the bribe amount, PW-2 was also present in his Chamber, which is not mentioned in Ex.P-5 complaint. It is pointed out in this context that though as per Ex.P-5 complaint, the appellant- accused is alleged to have demanded bribe of Rs.1,000/- in two instalments @ Rs.500/-, in his evidence, PW-1 has stated that the appellant-accused has demanded only Rs.500/- for issuing way bills when he visited him in his Chamber. 13. PW-1 has further admitted in his cross-examination that he received notice from the appellant-accused to submit his account books. However, he did not mention the same in his Ex.P-5-compolaint. In this context, it is contended that since the appellant-accused had issued notice to PW-1 to produce his account books, he bore a grudge against the appellant-accused and preferred Ex.P-1 false complaint before LW-9. 14. Further it is shown from the evidence of PW-1 that he stated to have handed over the account books to the office of the appellant-accused along with Ex.P-4 application seeking 10 leaves of way bills. In this context it is contended that if at all PW-1 had handed over the account books in response to the notice received from the appellant-accused, there would not have been any need or necessity for the appellant-accused to propose the inspection of the shop, stock and account books of PW-1. Moreover, basing on the production of the account books by PW-1, he could have ordered for issuance of way bills after verifying the account books. 15. It is also pointed out from the evidence of PW-1 that the appellant-accused instructed him to keep the amount on the table and accordingly, he kept the same there and then the appellant- accused opened the drawer and dragged the said amount into it with his two fingers of right hand. In this context, it is contended that PW-1 has not stated so in Ex.P-5-complaint and the same goes to falsify the case of the prosecution that the appellant-accused had demanded and accepted the alleged bribe amount from PW-1. 16. It appears from the record that PW.1 was produced before the Special Judge for SPE and ACB Cases, Vijayawada and his statement was recorded under Section 164 Cr.P.C. The evidence of PW.1 appears to be on the lines of the complaint. In this connection, it is contended that LW.9 got the statement of PW.1 recorded under Section 164 in order to keep the witness in his control and to see that during the course of recording his evidence, he does not deviate therefrom. It is contended that if the case of the prosecution was genuine and PW.1 had a prima facie case against the appellant-accused there was no need to get the statement of PW.1 recorded under Section 164 Cr.P.C.; that once a statement of person is recorded, generally he is under pressure and fear of being booked for perjury. As such, it is contended that in view of the same, PW.1 appears to have deposed during the course of his evidence accordingly and that the trial court failed to take note of such a situation while appreciating the evidence and other material on record. Moreover, it is contended that PW.1 did not state in Ex.P.13-164 Cr.P.C.Statement when he was asked by the appellant-accused to place the alleged tainted bribe amount on the table, and it is the evidence of PW.1 that the appellant-accused opened the drawer and dragged the said amount thereinto with his right hand two fingers and, as such, the same has to be termed as improvement. 17. At the end portion of his evidence, in his cross examination, PW.1 has admitted the suggestion that wherever the date 29.12.1994 was noted in Ex.P.5-complaint, the figure “9” appears to have been corrected by overwriting. However, the witness denied the suggestion that the date of the alleged offence was 28.12.94 and not 29.12.1994. In this connection, it is contended that the actual date of the alleged offence is doubtful and that Ex.P.5-complaint appears to be ante dated and the same was corrected by overwriting to suit the prosecution case, since it is the allegation of the prosecution that on 29.12.1994 the appellant- accused had demanded the alleged bribe amount and therefore, the trial court, somehow, failed to notice the same. It is also contended that in view of the variations and/or self contradictions of PW.1, the trial court ought to have seen that the same was inadmissible without proper corroboration from the evidence of other witnesses and/or the material on record. Referring to the evidence of PW.2, it is pointed out that this witness in his evidence has stated that A.O. by nodding his head asked PW.1 to pay the bribe amount and asked him to keep it on the table and thereafter he asked PW.1 to submit the application for way bills. However, this witness did not state as to PW.1 placing the alleged bribe amount on the table of the appellant- accused and the appellant- accused dragging the same into the drawer of the table. Therefore, it is contended that the evidence of PW.1 in this regard is not corroborated by PW.2. 18. It is in the evidence of PW.2 that as per the pre arranged signal by PW.1, the raiding party consisting of LW-9 and the staff entered the office of the appellant-accused and asked PWs 1 and 2 to wait outside the office and that after half an hour, they were called inside the office and LW.9 enquired PW.2 to narrate the events that took place in the office of the appellant-accused. However, the same is not spoken to by PW.5 in his evidence though he acted as one of the mediators to Ex.P.22-mediators report. In this regard, it is contended that the evidence of PW.5 falsifies the evidence of PW.2 that LW-9 had enquired to narrate the events that took place in the office of the appellant-accused and that the trial court has failed to observe the same while appreciating the evidence and the other material on record. 19. The Senior Assistant of the office of the appellant-accused was examined as PW.3. However, PW.3 turned hostile and did not support the case of the prosecution. He has stated in his evidence that the appellant- accused used to be very strict in respect of rules. Therefore, it is contended that the appellant-accused being a strict officer in respect of rules, had issued notice to PW.1 to produce the books of accounts with regard to his business turnover in order to assess his sales tax liability and also to issue way bills, and that PW.1 having developed grudge against the appellant-accused on that count, had preferred Ex.P.1 false complaint. 20. PW.4 is the Attender attached to the office of the appellant-accused. He was examined to prove that on the relevant day PWs 1 and 2 had approached PW.3 in the office of the appellant- accused. So far as Exs.D1 and D.2 are concerned, it is contended that PW.4 did not state before the Police in his statement recorded under Section 161 Cr.P.C. that PW.2 accompanied PW.1 to the office of the appellant- accused, however, due to fear of ACB officials, he had stated in his evidence that PW.2 had accompanied PW.1 to the office of the appellant- accused on 4.1.1995 during the course of pre trap proceedings and therefore, in view of the variation in Exs.D.1 and D.2 and as he has testified in the court, his evidence became falsified and even then, the trial court failed to make note of the same. 21. PW.5 is one of the mediators to Ex.P.16- mediators report-pre trap proceedings. He is also one of the mediators to Ex.P.22-post trap proceedings. He supported the case of the prosecution in his chief examination. However, during the course of his cross examination, he admitted that when DSP,ACB questioned the appellant- accused, he informed that he neither demanded nor accepted any bribe amount from PW.1. He admitted that he scribed Ex.P.22- post trap proceedings wherein the name of PW.2- Hanumatha Rao does not find place having accompanied PW.1 to the office of the appellant-accused. PW.5 has stated in his cross examination that PW.1 informed DSP, ACB that on the appellant nodding his head, he kept the tainted amount on his table. He also stated that PW.1 did not inform DSP, ACB that there upon the appellant-accused opened the drawer of his table and dragged the amount thereinto. Therefore, it is contended that in the evidence of PW.5 also, the allegation that the appellant - accused dragged the tainted amount into the drawer is absent. Therefore, it cannot be said that the appellant-accused had demanded and accepted the said amount from PW.1. PW.5 admitted in his cross examination that the portion of the table where tainted amount was kept by PW.1 was not subjected to Sodium Carbonate Solution test at the time of post trap proceedings under Ex.P.22, and the same fact goes to nullify the force of the evidence of PWs 1 and 2. Further, it is to be found in the cross examination of PW.5 that PW.1 did not inform LW.9 that the appellant- accused had medalled with the said amount placed by PW.1 on his table. This part of the evidence of PW.5 goes to show that the appellant-accused neither demanded nor accepted the alleged bribe amount from PW.1. He also stated in his cross examination that DSP,ACB did not call and enquired PW.2 at the time of post trap proceedings under Ex.P.22. 22. PW.6- Junior Assistant in the office of the appellant – accused, was examined to prove the demand and acceptance of the alleged bribe amount by the appellant-accused from PW.1. However, he has stated in his evidence that on hearing shouting of the appellant-accused, PW.1 was seen coming out of his chambers, that on his not heeding to the shouting of the appellant- accused, appellant-accused called him and asked him to call PW.1 as he was leaving his chambers by keeping the amount, on that the Special Public Prosecutor got the witness declared hostile and subjected him to cross-examination. However, during the course of cross- examination, he could not elicit any information in support of the case of the prosecution. 23. PW.7, C.T.O., Adoni, attached to the office of the appellant-accused was examined to prove the factum of obtaining sanction from the Government to prosecute the appellant. He has stated in his evidence that Ex.P-25 sanction orders were obtained from the Government vide G.O.Ms. No.384 dated 03-08-1985 Revenue (CT.I) Department. 24. The Inspector of Police, who assisted DSP, ACB during the course of investigation, was examined as PW.8. He has spoken to the preparation of pre and post trap proceedings vide Exs.P-16 and P-22. He has also spoken as to not finding any tainted amount on the person and the alleged tainted bribe amount was recovered from the drawer of the table. DSP,ACB requested the appellant to produce the amount received by him from PW.1 and the same being denied by him. In the very beginning of his cross-examination, PW.8 has admitted that there was no mention in Ex.P-5 that PW.2 was present at the time of the transaction. Further, the witness after going through the contents of Ex.P-5 asserted that PW.2 was present at the time of transaction. This witness admitted in his cross-examination that his enquires with PW.2 on 03-01-1995 do not find place in Ex.P-16 pre-trap proceedings. However, he supports, voluntarily stating that in the pre-trap proceedings, the said enquiry was not recorded as the proceedings are being conducted to explain the significance of reaction between sodium carbonate solution and phenolphthalein powder etc. This witness has also admitted in his cross-examination that the presence of PW.2 during the course of post-trap proceedings was not mentioned in Ex.P-22, so also the sodium carbonate solution test conducted on the table of the appellant. 25. From the evidence of PW.8, it cannot be said that PW.2 was present at the relevant time when the instance of demanding and accepting the alleged bribe amount by the appellant- accused from PW.1 as PW.8 has clearly stated that the same was not recorded in Ex.P-22. He has also admitted in his cross-examination that the actual place where PW.1 had kept the amount on the table of the appellant is not mentioned in rough sketch of scene of trap. Therefore, it is contended that the prosecution had failed to point out the actual place from which part of the table, MO.1 wad of tainted currency notes were recovered and the same is not mentioned in Ex.P-22. The prosecution also failed to establish the presence of PW.2 along with PW.1 at the time of the incident, as the same is evident from Ex.P-22. Moreover, PW.3-Senior Assistant PW.6- Junior Assistant had turned hostile. They did not support the case of the prosecution having belonged to the same department, both the witnesses have turned hostile and the same is suggestive of a false case being foisted against the appellant. 26. In the context of the right hand fingers of the appellant-accused turning pink, it is contended that it was due to the fact that PW.1 after handling the tainted amount also handled Ex.P-10 application for way bills and when the same was presented to the appellant-accused, he too handled it, therefore his right hand fingers yielded positive result. That there being no corroboration of evidence of PW.1 from any of the other prosecution witnesses and also having regard to the variations and contradictions in the evidence of PW.1 and also having regard to the fact that there is any amount of doubt about the presence of PW.2 along with PW.1 at the time of actual incident, the prosecution case appears to be doubtful. So also, the shouting of the appellant-accused while PW.1 was leaving his office after keeping the alleged bribe amount on his table and his calling PW.6 and informing the same to him, goes to show his innocence that he did not demand and accept the alleged bribe amount or any other amount from PW.1. Therefore, it is clear that the trial Court has erred while assessing the evidence and other material on record in coming to the conclusion that the appellant-accused was guilty of the alleged offences. 27. To state in brief, the case of the appellant-accused is that PW.1 has not stated that the appellant-accused demanded illegal gratification of Rs.1,000/- through out the discussion of his evidence by the trial Court. Referring to the evidence of PW.1, it is also contended that nowhere he has stated that the appellant demanded Rs.1,000/- and that he has only stated as to the demand made by the appellant for Rs.500/- only. 28. Further, it is contended that the theory of the demand of Rs.1,000/- as illegal gratification in instalments of Rs.500/- each is also not spoken to by PW.1 in his evidence, as such, his deposition in this regard goes to the route of the prosecution case and vitiates it. Whereas, it is the contention on behalf of the State that since the appellant had already accepted the first instalment of Rs.500/-, what remain was the second part of the illegal gratification of Rs.500/-, therefore it appears that PW.1 did not speak to the total gratification of Rs.1,000/-. 29. Referring to the evidence of PW.1, in support of the defence of the appellant-accused that since he handled Exs.P-10, his right hand fingers turned pink, it is shown that PW.1 has stated as under: “After signing on Exs.P-6 A.O. enquired whether I brought the demanded bribe amount. I informed that I brought the amount. I took out the tainted amount from my shirt pocket by holding with my two fingers, and offered to pay the same to the A.O. This A.O. instructed me to keep the amount on the glass of the table. Accordingly, I kept the same. Then the A.O. opened the drawer and dragged the said amount into the drawer with his two fingers of right hand. Then I requested the A.O. to issue Way Bills. He asked me to meet Somayajulu and submit an application. I informed him that I already submitted an application. On that this A.O. asked me to go and present fresh application. Then I went out and submitted fresh application to Somayajulu. It is Ex.P-10. Somayajulu