THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 1297 of 2003 Date: 15.06.2010 Between: Dayapule Prabhakara Rao. .. Appellant/Accused And State of A.P., rep. by S.I of Police, SPE/CBI/Visakhapatnam. .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 1297 of 2003 Judgment: Aggrieved by the judgment dated 28.11.2003 passed in C.C. No.4 of 2002 by the Special Judge for CBI Cases, Visakhapatnam, (hereinafter referred as “the Special Judge”), the appellant herein, who is the sole accused in that case, preferred this appeal. The appellant was found guilty for the offences punishable under Sections 7 and 13(1)(d)(ii) read with 13(2) of the Prevention of the Corruption Act, 1988 (for short “the Act”) and convicted and sentenced him to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer Simple Imprisonment for three months for each of the offences. The substantive sentences of imprisonment imposed against the appellant for both the offences were ordered to run concurrently. The appellant herein will be referred as the accused for the sake of convenience. The case of the prosecution, in brief, as seen from the evidence let in, is as follows. The accused was working as Branch Manager, Andhra Bank, Nidadavolu branch, West Godavari District. PW.1 – Somalanka Sri Srinivasa Paniseshu was the resident of Tadepalligudem. His father started security agency by name M/s. Sesh Detective Agency, at Tadepalligudem and died on 03.07.2001. The Andhra Bank, Nidadavolu financed to M/s. Coastal Chemicals Limited at Gowripatnam. It became a sick unit. The Andhra Bank entered into an agreement with M/s. Sesh Detective Agency, Tadepalligudem for arranging 21 security guards to guard the said sick unit. The specific case of PW.1 is that he approached the accused for issuing DDs for the wages of June and July 2001 and in spite of handing over Ex.P1 letter issued by the Zonal Office, Eluru, the accused demanded bribe of Rs.2000/- in the first week of October 2001, for issuing DDs for the months of June and July 2001. Again on 10.10.2001 the accused reiterated his demand and directed PW.1 to pay Rs.2000/- on 13.10.2001. Then he approached the CBI officials and presented Ex.P2 complaint to PW.8 D.L.N. Varma, who was working as Inspector of Police, CBI, Visakhapatnam and who was camping at Rajahmundry. On receiving Ex.P2 complaint, PW.8 made confidential enquiries and directed PW.1 to come to Meduri lodge where he was staying on 13.10.2001 at about 10.00 AM along with the proposed bribe amount. Then he secured the presence of PW.2 and another mediator and PW.1 went there at about 10.00 AM on 13.10.2001. Copy of Ex.P2 was shown to the mediators and Ex.P2 was sent to the Superintendent of Police, CBI, Visakhapatnam. After completing due formalities, the first mediator’s report was prepared. PW.1 produced Rs.2000/- and those currency notes were treated with phenolphthalein powder. The currency notes were kept in the empty left side shirt pocket of PW.1. PW.1 was directed to give pre-arranged signal by wiping his face with handkerchief. He was also directed to pay the amount only on the demand of the accused. PW.1 was also carrying another bag containing security agency bills for the month of June and July 2001. The significance of the phenolphthalein test was explained and it was demonstrated to the mediators. The pre-trap proceedings were drafted in Ex.P4. Then the trap party headed by PW.8 proceeded to Andhra Bank, Nidadavolu. PW.8 and others had taken vantage positions. PW.1 along with the accompanying witness PW.2 went into Andhra Bank, Nidadavolu. Then the accused asked PW.1 whether he had come prepared. Then PW.1 replied positively and produced the bills from his bag. Then the accused prepared the vouchers Exs.P5 to P9 and DD Ex.P10. The specific case of PW.1 is that then the accused demanded the bribe amount and PW.1 handed over the same by taking it from his shirt pocket. The accused received the said amount and kept it in his shirt pocket. Then the accused sent Ex.P10 - DD for signature through an attender. After it was signed the accused delivered Ex.P10 - DD to PW.1. Then PW.1 came out of the bank and gave pre-arranged signal. Then the trap party rushed into the bank and PW.8 introduced himself and the mediators to the accused. PW.8 prepared sodium carbonate solutions in two separate glasses and when the accused dipped his both hand fingers separately in the two glass tumblers, both the sodium carbonate solutions turned into pink colour. Then the accused produced the bribe amount of Rs.2000/- on the demand of PW.8 from the left side upper shelf of his table drawer. Then the mediators tallied the currency notes with the numbers noted in the first mediator’ report. It appears that one Rs.100/- currency note was mixed up with those currency notes. Then the currency notes of Rs.2000/- along with Rs.100/- currency note were seized. The inner portion of the left side shirt pocket of the accused was also subjected to sodium carbonate test, which yielded positive result. The front bound cover of the register where tainted currency notes were kept was also subjected to test and it also gave positive result. The material objects were seized. The Demand Draft - Ex.P10 prepared by the accused was returned to PW.1 and Ex.P12 xerox copy of Ex.P10 was seized by PW.8. The rough sketch of the scene of offence was prepared. What all stated by the accused and other mediators was incorporated in the second mediator’s report Ex.P11. After obtaining necessary permission and completing investigation, charge sheet was filed against the accused. The prosecution, in order to prove its case, has examined PWs.1 to 9 and got marked Exs.P1 to P40 and MOs.1 to 6. On behalf of the accused none were examined except marking Ex.D1. The learned Special Judge accepted the prosecution version and convicted the accused as stated supra. Sri C. Padmanabha Reddy, learned Senior Counsel, appearing for Sri C. Praveen Kumar, learned counsel for the accused, submitted that after the death of the father of PW.1, the mother of PW.1 claimed the amounts and the accused forwarded the same to the Zonal Office and since the accused had sought some clarification from the Zonal Office, there was some delay in issuing the cheques. It is also submitted that since the accused had already sent a letter to the Zonal Office stating that M/s. Sesh Detective Agency belonging to PW.1 was charging Rs.3000/- per person per month for employing 21 security personnel and that the service charges of Rs.3000/- per person per month is on higher side and that M/s. Omsai Professional Detective and Security Services Pvt., Limited, Vijayawada, has come forward to take up the security arrangements at Gowripatnem on payment of Rs.1900/- per security guard and further they suggested that only 16 security guards and one security officer is sufficient to look after the security arrangement at Gowripatnam and the Zonal Office may advise him in the matter. It is further submitted that since the accused had written Ex.P17 letter dated 08.09.2001, PW.1 became aggrieved by the said letter and that he had falsely implicated the accused in this case. It is also submitted that PW.5, who worked as Security Officer, admitted that there was a proposal by the Andhra Bank, Nidadavolu branch to change the detective agency. It is further argued that admittedly when the DDs were issued to PW.1 for the months of August and September 2001 there was no demand from the accused and that since the accused joined in the said branch only in July he had no concern with the bills of June and July 2001. It is also his submission that in fact the accused had addressed a letter in Ex.P29 forwarding the claim application Ex.P28 and recommending for sanction of payment of security charges for the months of June and July in the name of Somalanka Mani the mother of PW.1 and that Ex.P26 letter from the Zonal Office shows that Ex.P28 claim application was returned by the Zonal Office and the correspondence in Exs.P25 and P30 reveal that the matter was pending with the Zonal Office and that no delay occurred in the office of the accused. It is also his submission that as per the advice of Zonal Office, DD was prepared in the name of firm and all these circumstances go to show that the accused never demanded any bribe amount, but he was acting only as per the directions of the Zonal Office. It is also his submission that after Ex.P1 letter sent by the Zonal Office, there was much correspondence between the accused and the Zonal Office and that Ex.P1 letter does not refer to the months and more over it refers to the letter written by the accused in Ex.P17, wherein proposals for change of security agency was made. It is also further submitted that mere receipt of tainted currency notes does not prove the case of the prosecution unless the demand is proved by the prosecution. It is also submitted that the tainted currency notes were not recovered from the person of the accused, but they were taken from the table drawer of the accused. It is further argued that PW.2 was sitting on a sofa at a distance and he had no occasion to hear the conversation between PW.1 and the accused. It is also argued that admittedly PW.1 left his seat for obtaining the signature of the other bank officials on the DD and at that time PW.1 had ample opportunity to put the tainted currency notes in the table drawer of the accused. The learned Special Public Prosecutor for CBI Cases submitted that though the bills for the months of August and September 2001 are paid, but the accused was delaying the payment for the months of June and July 2001 and that he had demanded PW.1 to pay Rs.2000/- . It is also his submission that the evidence of PWs.1 and 2 proves that the accused demanded the bribe amount and that he had accepted the same from PW.1 and that when the accused rinsed his both hand fingers in the sodium carbonate solution they turned into pink colour and when the inner side shirt pocket of the accused subjected to sodium carbonate test the same also yielded positive result, which proves that the accused had accepted the bribe amount. It is also submitted that when the accused was specifically directed by the Zonal Office as per Ex.P1 to pay the amounts to PW.1 there was no necessity for the accused to make correspondence with the Zonal Office and that for the purpose of delaying the process only he made unnecessary correspondence with the Zonal Office and this shows that the accused had an evil intention to collect money from PW.1. It is also his submission that the learned Special Judge, after taking all the facts and circumstances into consideration, has rightly convicted the accused and there is no need to interfere with the same. The only point that arises for consideration is whether the facts and circumstances of this case show that there was any demand of bribe amount by the accused and whether the accused has accepted the bribe amount from PW.1 in pursuance of his demand. PW.1 is the complainant. PW.2 is one of the mediators. PW.3, the Officer of Andhra Bank, Nidadavolu, also acted as a mediator. PW.4 is the Senior Manager (Credit) of the Zonal Office, Andhra Bank, Eluru. PW.5 is the in-charge Security Officer of Eluru Zone. PW.6 is the Inspector of Police, CBI, Visakhapatnam, who registered the case against the accused. PW.7 is the Sub-Inspector of Police, CBI, Visakhapatnam, who investigated the case and filed charge sheet. PW.8 is the Inspector of Police, CBI, Visakhapatnam, who received the complaint from PW.1 and forwarded the same to the SP, CBI, Visakhapatnam, and conducted entire trap proceedings. PW.9 is the Assistant Director, Chemistry, CFSL, Hyderabad, who examined the contents of MOs 2 to 5 and gave report Ex.P38. It is not in dispute that the father of PW.1 started security detective agency at Tadepalligudem in the name and style of M/s. Sesh Detective Agency. This security agency had entered into an agreement with Andhra Bank, Nidadavolu branch for engaging 21 security guards on payment of Rs.100/- per day to each security guard. The security agency was preparing bills towards the wages of security guards and that the Andhra Bank, Nidadavolu was sanctioning those bills. The accused joined as Manager of Andhra Bank, Nidadavolu on 03.07.2001. Admittedly, the mother of PW.1 was one of the legal heirs after the demise of father of PW.1. PW.1 admitted that the accused, after joining in Nidadavolu branch, visited M/s. Coastal Chemicals Limited, Gowripatnam on one or two occasions. PW.1 admitted that prior to October 2001 the accused never demanded any bribe amount. Men may lie, but the circumstances never lie. Ex.P21 is the letter dated 08.07.2000 from Andhra Bank Zonal Office, Eluru, accepting the proposal of M/s. Sesh Detective Agency on certain terms and conditions, which include that the agency should provide minimum of seven security guards preferably ex-servicemen per shift of 8 hours and that they should not leave the place without proper authority from the bank officials. Ex.P19 is the letter dated 01.08.2001 from the Zonal Office to the accused stating that PW.1 informed that his father died on 03.07.2001 and that their security services may be continued and in this regard the Zonal Office requested PW.1 to offer his views for continuance of the security arrangements with the same firm or not. Ex.P28 is the claim form submitted by Somalanka Mani the mother of PW.1 and PW.1 claiming the fees for the security arrangements made by them i.e., for the months of July and August 2001 and it shows that the branch office recommended to sanction the payment of security arrangements fees for the months of June and July in the name of claimant Somalanka Mani, wife of S. Nageswara Rao. Ex.P32 is the letter dated 17.08.2001 from the Security Officer to Andhra Bank Zonal Office, Eluru, requesting the Zonal Office to continue the same agency. Ex.P29 is the letter dated 20.08.2001 from the accused to the Zonal Office sending the claim application of Somalanka Mani, the mother of PW.1 for settlement of the claim. Ex.P24 is the letter dated 28.08.2001 showing that the claim application sent by the accused has been returned to Andhra Bank, Nidadavole, advising them to mention the nature and amount of claim in the relevant columns and resubmit the same for consideration at their end. Ex.P25 is the letter dated 03.09.2001 from the accused to the Zonal Office, Eluru, resubmitting the claim duly mentioning the nature and amount of claim in the relevant columns. Ex.P17 is the letter dated 08.09.2001 written by the accused to the Zonal Office stating that M/s. Sesh Detective Agency was arranging security to M/s. Coastal Chemicals Limited only and no other clients are there for them, except the Andhra Bank. It is also mentioned that the agency is charging Rs.3,000/- per person per month and employing 21 persons which amounts to Rs.63,000/- per month and that the same is on higher side and there are other agencies namely M/s. Omsai Professional Detective and Security Services Private Limited, Vijayawada, which has come forward to take up the security arrangements at Gowripatnam, at the rate of Rs.1900/- per security guard and they suggested that only 16 + 1 i.e., 16 security guards and one security officer are sufficient to look after the security arrangements at Gowripatnam. Ex.P1 is the letter dated 11.09.2001 from the Zonal Office, Eluru, to the accused advising him to continue the existing security arrangements by incurring necessary amount and further advising him to pay the dues payable for the security arrangement to the present in-charge person looking after the security arrangement. Ex.P22 is the copy of Ex.P1. Ex.P33 is the office note of the Zonal Office, Eluru, with regard to security arrangements. In that letter, the Zonal Office decided to address Official Liquidator to seek confirmation for changing over the security agency and advised the Branch Manager (accused) to find out the cost for providing 21 guards from the new agency. Ex.P26 is the letter dated 18.09.2001 from the Zonal Office, Eluru, returning the claim application of PW.1 to the accused and directing him to resubmit the same with his specific recommendations at the place provided for the same in the application and duly attesting the death certificate, family members certificate and legal heirs certificate. Ex.P31 is the letter dated 20.09.2001 from PW.1 to the accused stating that he is the legal heir of his late father Somalanka Nageswara Rao and he became the in-charge of M/s. Sesh Detective Agency at Tadepalligudem and that the demand draft may be paid to him. Ex.P16 is the letter dated 24.09.2001 from the accused to the Zonal Office, Eluru, stating that an amount of Rs.65,740/- was paid to the in-charge person of M/s. Sesh Detective Agency, Tadepalligudem for the month of August 2001. Ex.P30 is the letter from the accused to the Zonal Office, Eluru, stating that he was resubmitting the claim with specific recommendations to pay the security arrangement fee to Smt. Somalanka Mani the mother of PW.1. Ex.P18 is the letter dated 12.10.2001 from the Zonal Office to the accused. In that letter the Zonal Office informed the accused that there is no need to prefer a claim in the captioned subject and he was advised to pay the security fees payable to security personnel of M/s. Sesh Detective Agencies for the months of June and July, 2001 to the firm M/s. Sesh Detective Agency. In the above circumstances, PW.1 lodged the complaint to the CBI in Ex.P2 alleging that on 10.10.2001 when he contacted the accused over phone he demanded Rs.2000/- to be paid on 12.10.2001 after about 12.00 Noon in the bank. Though he mentioned it as yesterday, but admittedly he lodged the complaint on 12.10.2001. The word ‘yesterday’ mentioned in the complaint dated 12.10.2001 cannot be treated as 10.10.2001 and it must be 11.10.2001. As far as the evidence of PW.1 that he went to the bank on 10.10.2001 on the day when the accused is alleged to have demanded the bribe is concerned except the evidence of PW.1 there is no evidence on record. The prosecution did not examine any witness or marked any document to show that PW.1 in fact went to the bank on 10.10.2001. Therefore, there is material contradiction with regard to the date and time as to when the accused is alleged to have demanded the bribe amount. As referred above, Ex.P18 clinches the issue. Ex.P18 reveals that on 12.10.2001 the Zonal Office sent a letter advising the accused to pay the security fees to the firm M/s. Sesh Detective Agencies. Even according to PW.4, who worked as Senior Manager (Credit), Andhra Bank, Zonal Office, Eluru, the final instructions for payment of security fees was clarified by the Zonal Office through their letter Ex.P18 on 12.10.2001. Thus, two things are clear from this; that in spite of request of PW.1 to issue DD in his name his request was not considered, but DDs were directed to be given in the name of firm M/s. Sesh Detective Agency as per Ex.P18. Thus, it is clear that as long as there was no reply as in Ex.P18 from the Zonal Office, there was no possibility for the accused to issue DDs to PW.1 either in his name or in the name of M/s. Sesh Detective Agency. Yet there is another circumstance in this case. According to PW.1, he went to ACB Office on 12.10.2001 and presented Ex.P2 complaint at 6.00 PM. Admittedly, PW.2 was summoned to Meduri lodge where PW.8 and others were there on 13.10.2001 and first mediator’s report Ex.P4 was prepared between 10.00 AM and 11.30 AM. Then the trap party, even according to PW.8, proceeded to the bank by 12.40 PM and around 1.40 PM PW.1 came out of Andhra Bank and gave pre-arranged signal. Ex.P11 second mediator’s report also reveals that immediately after 13.40 hours the trap was laid. PW.6, the Inspector of Police, CBI, who registered the case, admitted that the Court is only at a distance of 3 KMs from the office of the CBI. He has also admitted that the endorsement of the learned Judge on Ex.P35 FIR shows that he received the same at 3.30 PM on 13.10.2001. Thus, it is clear that the FIR reached the learned Judge after completing the first mediator’s report and after laying the trap at 13.40 hours. Yet there is another circumstance that even according to PWs.1 and 2, when PWs.1 and 2 approached the accused, the accused simply asked PW.1 whether he had come prepared and PW.1 nodded his head. The subsequent incidents have to be taken into consideration. After the accused questioning PW.1 whether he had come prepared, admittedly PW.1 handed over the bills marked as Exs.P13 and P14 and then the accused prepared Exs.P5 to P9 vouchers and Ex.P10 - DD. Thus, it is clear that the above referred bills are admittedly taken by PW.1 along with him for the purpose of handing over the same to the accused. In all probabilities the accused might have informed PW.1 to come along with the bills for the purpose of handing over the DD. In the above circumstances, the question did you come prepared cannot be interpreted as the demand made by the accused for bribe. It has to be seen that the accused has admittedly addressed a letter in Ex.P17 to the Zonal Office for change of the security agency. If at all the accused wanted to demand any bribe amount from the accused in all probabilities he should have demanded PW.1 to pay the bribe amount before addressing Ex.P17 to the Zonal Office. Admittedly, the accused did not make any demand in the month of September 2001. Even according to PW.1, the accused made the demand only in the first week of October 2001 and by that time the Zonal Office itself sought confirmation from the Official Liquidator for changing over the security agency vide Ex.P33, dated 11.09.2001. Admittedly, the accused visited M/s. Coastal Chemicals Limited after he has taken the charge of the post of Branch Manager, Andhra Bank, Nidadavole. Admittedly, at that time the accused did not demand any bribe. If at all the accused had any bad intention to demand the bribe he would have demanded the bribe on the date when he inspected M/s. Coastal Chemicals Limited or when he gave DDs for the month of August and September 2001. Therefore, it is crystal clear that the allegation of PW.1 that the accused demanded him to pay bribe on 10.10.2001 or on 11.10.2001 appears to be false and concocted for the purpose of this case. More over the circumstances of this case that the accused himself has written a letter to the Zonal Office proposing to change the security agency and the subsequent letter from the Zonal Office considering the proposal of the accused and proposing to change the security agency also shows that PW.1 was aggrieved by the proposals made by the accused and, therefore, it is clear that PW.1 appears to have developed grudge against the accused to implicate him in this case. Therefore, it is clear that the prosecution failed to prove the demand in this case. As seen from the contents of Ex.P11 post trap proceedings it reveals that initially the accused stated that he accepted Rs.2000/- from PW.1 as a formality to issue DD, but after some time he stated that he did not demand the amount but accepted it when PW.1 offered and again he stated that PW.1 forced him to take the amount of Rs.2000/-. Then the CBI Inspector questioned PWs.1 and 2 as to what had happened. Admittedly, PW.3 picked up the currency notes from the