THE HON’BEL SRI JUSTICE B. CHANDRAKUMAR CRIMINAL APPEAL No. 663 of 2003 JUDGMENT: The original appellant is no more. His wife and other legal representatives as per the order of this Court dated 24.02.2010 passed in Crl.M.P.No.2968 of 2009 have sought verdict in this appeal. 1. The original appellant was tried by the learned Additional Special Judge for SPE and ACB cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad (hereinafter referred to as ‘the Special Judge’), in C.C.No.6 of 1994 for the offences punishable under Sections 7 & 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and was convicted by judgment dated 12.06.2003 for the said offences and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months for each of the offences separately. The substantial sentences were directed to run concurrently. 2. The brief facts of the case are that the original appellant (hereinafter referred to as ‘the accused or A.O’), has worked as Mandal Development Officer, Peddavaduguru of Ananthapur District, and he was a public servant within the meaning of sub- clause (1) of clause (c) to Section 2 of the Act. 3. PW.1-Sri Y. Ravichandrakumar worked as Secondary Grade Assistant, M.P.U.P. School, Laxmanpally, Peddavaduguru Mandal of Ananthapur District from 1991 to 1993. The accused was the Salary disbursing officer. In November, 1993 PW.1 wanted to purchase a T.V. by obtaining loan from A.P. State Trading Corporation. He obtained loan application form from the said Corporation and after completing all the formalities, he submitted the application along with pay-slips of himself and guarantors, namely, M. Ramanjaneyulu (PW.3) and K.V. Seshagiri Rao, for attestation. On 10.11.1993, the accused had put his initials on those papers and handed over the same to PW.5-P. Bala Keshava Reddy. Then the accused asked PW.1 to meet him afterwards. PW.1 again met the accused on 15.11.1993 and requested him to sign on the papers. Then the accused alleged to have demanded Rs.100/- for signing the papers. When PW.1 stated that he is not in a position to pay the amount, the accused reduced the same to Rs.50/-. On 22.11.1993 again PW.1 went to the office of the accused and met him. Then the accused reiterated his demand. Since PW.1 was not willing to pay the bribe amount he met DSP, ACB, Ananthapr on 22.11.1993 and lodged Ex.P.1-complaint. 4. PW.7-Ilyas Sait was working as DSP, ACB, Ananthapur, during the relevant point of time. He received Ex.P.1- complaint from PW.1, got verified the contents of the same, registered a case in Crime No.7/ACB-ATP/93 under Section 7 and 11 of the Act, and issued Ex.P.9-F.I.R. Then he secured the presence of mediators, namely, Sri B. Bojja Rao (LW.2) and Sri G.L.D. Nageshwara Rao (PW.2) and introduced PW.1 to them. The mediators enquired PW.1 and gone through the contents of Ex.P.1. Then PW.1 produced the currency notes, the proposed bribe amount, to the mediators and they noted numbers of the said currency notes in the proceedings. The said currency notes were treated with Phenolphthalein powder and after ensuring that nothing was there in the pockets of PW.1, those currency notes were kept in his right side pocket of PW.1. He was instructed not to touch the notes and pay the same to the accused only on his demand. PW.7 also explained and demonstrated the significance of Phenolphthalein test to PW.1 and mediators. Then the first mediators’ report was prepared. After preparing fresh kit, they left to Peddavaduguru in a Government jeep and reached the office of the accused at about 1.05 p.m. 5. PW.1 alone entered into the office of the accused. At that time, the accused was in the room of V.D.O. then PW.1 went to the V.D.O’s room and met him. Then both of them came to the office room of the accused. When PW.1 asked the accused to sign on the papers, he demanded the bribe amount. PW.1 handed over the tainted currency notes. Then accused counted them and kept them in his pant back pocket, and directed PW.1 to get the papers from PW.5-Balakeshava Reddy. PW.1 went to PW.5 and secured the papers. Then the accused signed on those papers and kept them on his table. PW.1 took out those papers, came out and gave the pre-arranged signal to ACB Officials. Then PW.7 and the mediators rushed into the room of the accused and introduced themselves to him, prepared sodium carbonate solution in two glass tumblers and asked the accused to rinse his right and left hand fingers separately in glasses. Both the solutions turned into pink colour. The solutions were preserved in two clean bottles under seal and label. PW.7 directed the accused to produce the tainted bribe amount. Then the accused took out currency notes from his left hand side pant hip pocket and placed them on the table. The mediators picked up the notes counted and compared them with the note numbers mentioned in the first mediators’ report. The tainted currency notes MO.3 were seized. The papers relating to PW.1 in all five sheets were seized. The Application Form, Tappal Distribution Register and Attendance Register of MDO Office were also seized. Thereafter, PW.7 prepared the rough sketch of the scene of offence. He examined some of the staff present there and recorded the statement of PW.1. The version of the accused was also incorporated in the second mediators report. 6. PW.8-D. Satyanarayana Rao, who was working as Inspector of Police in the ACB, Ananthapur range, took up investigation. He examined seven witnesses, recorded their statements, obtained the sanction order and after completing the investigation, he laid charge sheet against the accused. 7. PW.2 is one of the mediators, whose presence was secured by ACB Officials. 8. PW.3-M. Ramanjaneyulu, who was working as science assistant in Z.P. High School, Kristhipadu, Peddavaduguru Mandal during the relevant point of time, stood as guarantor to PW.1 and signed in the application form. 9. PW.4-R. Laxmi Narayana Reddy was working as Headmaster in M.P.U.P. School, Laxmanpally, Ananthapur District. He endorsed the application of PW.1 to Mandal Development Officer for necessary action. Ex.P.2 was the application containing his endorsement. 10. PW.5-P. Bala Keshava Reddy, was working as Junior Assistant in the office of the Mandal Development Officer, Peddavaduguru, Ananthapur District. According to him on 10.11.1993 when PW.1 presented the application for loan for purchasing a T.V., the A.O. directed PW.5 to keep that application with him. He was also stated that again on 24.11.1993 PW.1 came to the office and as per the directions of the accused he put his initials and seal of A.O and sent the file to the accused. According to him, as the concerned clerk was not available, the application form of PW.1 was not assigned any serial number and it was not entered in the register. 11. PW.6-S.Pardhasardhy was working as the Section Officer in Panchayat Raj Department, Secretariat, Hyderabad. G. Sudheer, the then Secretary to the Government of A.P., Panchayat Raj, Rural Development Department, has issued sanction proceedings vide Ex.P.8-G.O. dated 25.05.1994 according sanction to prosecute the accused. 12. The specific case of the accused is that he did not demand any bribe amount; that PW.1, who is the Joint Secretary of the teachers Union, developed grudge against him; and that when PW.1 himself threw the money on his table, he picked up the notes with an intention to chide and return to PW.1. But in the meanwhile, ACB officials rushed into his room and apprehended him. 13. Sri S. Kammanna was examined as DW.1. He deposed that he is a small farmer. He knew PW.1 and the accused. On the date of incident, he went to Mandal Development Officer for obtaining a certificate from him. The MDO gave the certificate to him in writing. In the meanwhile, PW.1 came there and questioned A.O. whether his file had come to him or not, upon which, A.O. replied that he did not receive the file. Then PW.1 went out and came within 10 minutes with the file and A.O. signed on all the documents in that file and kept the file on the table. Then PW.1 took out the tainted currency notes from his pocket and threw it on the table of A.O. and rushed out of that room. The A.O., with an intention to return back the amount to PW.1, collected the currency notes and PW.1 was not available. A.O had kept the amount in his pant pocket. In the meanwhile, ACB people came there. According to DW.1, he had also narrated all the facts to ACB officials, since he was present in the office room of A.O. It is also his case that A.O. had given spot explanation during post trap proceedings. 14. The learned Special Judge, after appreciating the evidence on record, believing the prosecution case convicted the accused and sentenced him as stated supra. Aggrieved by the same, the present appeal is filed. 15. During the pendency of the appeal the original appellant died and his legal representatives have come on record. 16. Sri C. Padmanabha Reddy, learned Senior Counsel for the appellant, submitted that in this case there was neither demand nor acceptance. He has also submitted that PW.1 was working as Joint Secretary of the Teachers Union. Since his application form was not attested on the very same day and he was asked to wait, he felt insulted and wanted to take revenge against the appellant, and he had falsely implicated the appellant in this case. It is further submitted that even according to the prosecution case, on 10.11.1993 when PW.1 submitted the loan application form for attestation, there was no demand from the appellant, and only on 15.11.1993 when PW.1 again met the accused it is alleged that the accused demanded bribe amount. It is the further case of PW.1 that the accused again made a demand for bribe on his third visit on 22.11.1993. He further submitted that there is no reference with regard to the demand alleged to have been made by the appellant on 22.11.1993 in the statement of PW.1 recorded under 164 Cr.P.C or by the ACB Officials. He further submitted that on the very same day, when PW.1 presented the papers, the same were handed over to PW.5 and they were pending with PW.5 till the date of trap. But according to PW.5, PW.1 never visited the office of the accused. He further submitted that admittedly PW.5 did not put up loan papers, and therefore, the question of demanding bribe amount by the accused does not arise. He further submitted that even according to DW.1, at the time of post trap proceedings, the appellant categorically stated that PW.1 had thrown the amount on his table and went out. Since the accused wanted to chide and return the currency notes to PW.1, he kept the amount in his pant pocket. Even before he could contact others to call PW.1, ACB officials entered into his room. He further submitted that this part of explanation given by the accused was admitted by PWs.1, 2 and 7, and the same was noted in the second mediators’ report. He further submitted that when the accused has given spot explanation, what is required to be seen is whether the explanation given by the accused is probable or not. But the accused need not prove his case as required to be proved by the prosecution in a criminal case. If it appears from the evidence that the version of the accused is probable then the accused should be extended the benefit of doubt. 17. Sri V. Ravikriran Rao, learned Special Public Prosecutor for CBI, submitted that when PW.1 submitted an application for obtaining loan for purchasing a T.V enclosing all the necessary forms including his pay slip and also the pay slips of guarantors, what was required to be done by A.O., is only to attest the same. He further submitted that the accused ought to have attested the application form of PW.1 on the very same day when it was presented, and there is no need for him to keep the said application pending for days together, which shows that the accused had an intention to compel the PW.1 to pay the bribe amount. This circumstance shows that there was a demand by the accused and the evidence of PW.1 corroborated the above circumstance. He further submitted that if at all the version of the accused is true that PW.1 threw the currency notes on his table, he would have immediately called PW.1 or the attender or any one of his staff members and would have directed them to hand over the currency notes to PW.1, or to call PW.1 immediately. In the absence of any positive action by the accused, the only presumption that can be drawn is that the accused had accepted the bribe amount as a reward for attesting the application form of PW.1. He further submitted that the evidence of PW.5 is also not helpful to the accused since PW.5 simply stated that during the post trap proceedings, he saw PW.1 and the accused talking to each other and he did not witness the demand or acceptance of the proposed bribe amount by the accused. 18. In view of the above submissions, the point that arises for consideration is whether the version of PW.1 is believable and whether the defence of the accused is probable in the circumstances of the case. 19. It is not in dispute that PW.1 was working as Secondary Grade Assistant in M.P.U.P. School, Laxmanpally, Peddavaduguru Mandal during the relevant period and that he submitted an application along with his pay slips and also the pay slips of the guarantors for the purpose of obtaining loan from the A.P. State Trading Corporation, and that the accused being the Salary Disbursing Officer was required to attest those papers. It is also not in dispute that on 10.11.1993 PW.1 went to the accused, presented the loan application form and requested him to attest those papers, and that the accused had put his initials and handed over the papers to PW.5. According to PW.1 on 10.11.1993 the accused asked PW.1 to meet him afterwards. Again on 15.11.1993, when PW.1 met the accused and requested to sign on the papers, the accused demanded a bribe of Rs.100/- for signing the papers. Since PW.1 was not in a position to pay the bribe amount, the demand of Rs.100/- was reduced to Rs.50/-. Again on 22.11.1993 PW.1 went to the office of the accused and met him and reiterated his request. At that time also the accused reiterated his demand. It is the further case of PW.1 that since he was not willing to pay the bribe amount, he approached the DSP, ACB on 22.11.1993. 20. Admittedly, PW.1 approached PW.7-ACB DSP on 22.11.1993 and the case was registered under Ex.P.1 But Ex.P.1 is silent with regard to the alleged demand said to have been made by the accused on 22.11.1993. Admittedly, the accused did not make any demand on 10.11.1993. Therefore, the only date on which the accused alleged to have demanded the bribe amount, is on 15.11.1993. The papers were not signed by the accused till 24.11.1993. Except the evidence of PW.1, there is no evidence on record with regard to the alleged demand said to have been made by the accused on 15.11.1993. The evidence of PW.3 only shows that he stood as guarantor and signed in the application form of PW.1. PW.4 is the Headmaster, who forwarded the application of PW.1 to the office of the accused. 21. PW.5 is the Junior Assistant working in the office of the accused. He deposed that on 10.11.1993, PW.1 came to the office and met the accused. Then the accused asked PW.5 to verify the application. He further deposed that PW.1 again came to the office on 24.11.1993 and on that day the accused asked him to go through the application of PW.1 and send it to him. Accordingly, he had gone through the application, put his initials and also the seal of A.O. and sent the same to the accused. According to him after sometime, ACB officials entered into the room of the accused. According to PW.5, when PW.7 asked him as to why there was delay in disposal of the application of PW.1, he informed that as per the instructions of the accused only the delay occurred. PW.5 further deposed that the concerned clerk, who had to make entries with regard to the application of PW.1, was not available on 10.11.1993 and therefore, the particulars of the application of PW.1 could not be entered in the concerned register and for that reason, the application was not given any number. 22. Thus the evidence of PW.5 shows that since the concerned clerk was not present on 10.11.1993, the application of PW.1 could not be entered in the concerned register and that no number was assigned to it. The evidence of PW.5 also reveals that the application was kept pending only at the instance of the accused, but his evidence is silent with regard to the alleged demand said to have been made by the accused on 15.11.1993. PW.5 did not wishper about the visit of PW.1 to the office on 15.11.1993. Therefore, except the evidence of PW.1 there is no other evidence with regard to the demand said to have been made on 15.11.1993. 23. Admittedly, PW.1 was the Joint Secretary of the Teachers Union. When it was suggested to PW.1 that he was in bad terms with the accused, he denied the same. He admitted that the particulars shown by him in his pay slip and that of the guarantors have to be verified by the office of the A.O., with the records available in the office. Therefore, the delay may be for the reason that the concerned clerk, who had to verify the records, is not available. 24. Sri C. Padmanabha Reddy, strenuously contended that PW.1 was the Joint Secretary of the Teachers Union. He insisted the accused officer to attest those papers on 10.11.1993 itself. Since the accused refused to attest the papers on 10.11.1993, PW.1 became aggrieved and felt insulted, and therefore, he approached the ACB officials and made a false complaint that the accused demanded bribe on 15.11.1993. 25. So far as what transpired in the office room of A.O., we have the evidence of PW.1, DW.1, and the spot explanation of the accused. According to the spot explanation of the accused, he stated that he did not demand any bribe amount from PW.1, but PW.1 himself had thrown the currency notes on his table, and left the office room of A.O., and then he kept the amount in his pocket with an intention to return the same to PW.1. According to DW.1, he was present in the office room of A.O. at the relevant point of time when PW.1 entered into the room of A.O. The presence of DW.1 was also noted in the second mediators report. Therefore, there cannot be any doubt about the presence of DW.1 at the time when PW.1 entered into the office room of A.O. According to DW.1, PW.1 questioned A.O. whether his file had come to him or not. When A.O. said that he did not receive the file, PW.1 went out and again returned within 10 minutes with the file. Then A.O., signed on all the documents and kept the file on the table. According to DW.1, PW.1 took out the money from his shirt pocket and threw it on the table. Then A.O., called PW.1 as to why he had thrown the amount and was leaving. In spite of calling by A.O. PW.1 went out and did not return. Then A.O. collected the money and kept it in his pant pocket. In the meanwhile ACB officials entered into the room. DW.1 further deposed that A.O. gave spot explanation to the ACB officials. PW.1 also admitted that A.O. gave spot explanation. The spot explanation by A.O that PW.1 had thrown the currency notes at him, which is admitted by PW.1 and which finds a place in second mediators’ repot support the version of A.O. Thus there is no dispute with regard to the spot explanation given by the A.O. 26. Now what is to be seen is, whether the spot explanation of the accused is probable or not. 27. The normal conduct of A.O., when PW.1 had thrown the amount on his table, would have been to call PW.1 and if PW.1 did not return, he would have called his attendar or any one of his office staff and handed over the amount to them directing to handover the same to PW.1, or to call PW.1 immediately. It is submitted on behalf of the appellants that since PW.1 was known to him as he was the Joint Secretary of the Teachers Union, the accused might have thought that it may be appropriate to chide PW.1 when he approaches him. Merely because the accused had kept the amount in his pant pocket and did not hand over the same either to DW.1 or to any one of his staff members, the version of the accused cannot be disbelieved. It is to be seen that the accused has given explanation immediately when the ACB officials questioned him. When it was suggested to PW.1 that on 10.11.1993 itself he demanded the accused to attest his papers and further told the A.O., that if A.O., failed to attest the papers on the very same day, he had to send the papers by post, for which the accused said to have retorted that the papers cannot be sent by post and PW.1 had to personally come and collect those papers. Of-course PW.1denied the said suggestion. However, a reading of entire evidence gives an impression that there was some tussle between PW.1 and the accused on 10.11.1993. PW.1 seems to have felt insulted. He being the Secretary of the teacher’s union would have expected that the A.O., would sign his papers on the very same day i.e., on 10.11.1993 itself. When A.O., did not sign on 10.11.1993 it appears that ego of PW.1 was hurt. Since the accused directed PW.5 to keep the application of PW.1 with him and it was not processed till 24.11.1993, the possibility of PW.1 feeling insulted and trying to implicate the accused in a false case cannot be ruled out. 28. The other circumstance, which appears to be in favour of the accused, is that when PW.1, who was working as Joint Secretary of the Teachers Union, submitted loan application, the only work to be done by the accused was to attest the application form of PW.1. The accused, who was working as Mandal Development Officer, in all probability, would not have demanded a meager amount of Rs.50/- for attesting the papers of PW.1, who admittedly was a Joint Secretary of the Teachers Union. The possibility of PW.1 feeling insulted and implicating the accused in a false case also appears to be probable. In the above circumstances the version of the accused that PW.1 had thrown the tainted currency notes on his table and that he had collected those currency notes and kept in his pant pocket to return the same to PW.1 also appears to be probable. Even if it is held that the views both in favour of the prosecution and the accused are possible, the view in favour of the accused has to be adopted. It appears that the accused had retired from service long back and during the pendency of the appeal he died. 29. Having regard to the facts and circumstances of the case, I am of the view that it is a fit case where benefit of doubt should have been extended to the accused rather than convicting him on the solitary testimony of an interested witness like PW.1. 30. In