HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1163 of 2003 JUDGMENT: This Criminal Appeal is filed by the appellant-accused officer against the judgment dated 31.10.2003 passed by the learned III Addl. District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam, in C.C.No.40 of 2000, convicting him under Section 248(2) Cr.P.C. for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”) and sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month for the offence under Section 7 of the Act and further sentencing him to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month for the offence under Section 13(1)(d) r/w Section 13(2) of the Act. 2. Briefly, the case of the prosecution is that on 24.11.1993 P.W.1- complainant had purchased a house bearing door No.64-9-3 situated at Ramanagar, Gollapalem, Visakhapatnam from one Smt. Undi Sasikala for a total consideration of Rs.81,000/- under document No.1944/93 and the vendor had given Ex.P.3 pass book to him wherein it is mentioned that the half-yearly tax payable is Rs.210/- . On 06.06.1994 P.W.1 paid Rs.200/- in the Municipal Treasury, Visakhapatnam, for mutation of his name in the revenue records. Thereafter i.e. on 10.06.1994 when P.W.1 and N.V. Siva Prasad - P.W.2 met the Revenue Inspector, Visakhapatnam Municipal Corporation, Visakhapatnam - accused officer, he demanded Rs.2,400/- as tax payable instead of Rs.210/- stating that he would play a crucial role in the change of name and collection of tax. P.Ws.1 and 2 again met the accused officer on 13.06.1994 and on their request, the accused officer reduced the bribe amount to Rs.1,800/- and wanted to pay the said amount on 14.06.1994 at the house of P.W.1. Aggrieved by the same, P.W.1 gave Ex.P.1-complaint to P.W.5- the Dy.S.P, A.C.B., Visakhapatnam, on 13.06.1994. Having received the complaint, P.W.5 registered Crime No.RC9/RC.WLR/94 for the offences punishable under Sections 7, 11, and 13(i)(d) r/w 13 (2) of the Act and thereafter P.W.5 organized a trap on 14.06.1994 which proved successful and the tainted currency notes were recovered and the sodium carbonate test conducted on the hands of the accused officer gave positive result. After completion of his part of investigation, P.W.5 handed over the case to the Inspector of Police, ACB, Visakhapatnam, for further investigation. Having obtained necessary sanction order to prosecute the accused officer from the authorities concerned and completed the investigation, the Inspector of Police, ACB, Visakhapatnam, laid charge sheet against the accused officer for the offences punishable under Sections 7,11 and 13(i)(d) r/w 13 (2) of the Act. The plea of the accused officer was of total denial. 3. In order to establish its case, the prosecution examined P.Ws.1 to 5 and got marked Exs.P.1 to P.11 and M.Os.1 to 8 on its behalf. On behalf of defence, no oral or documentary evidence was adduced. 4. P.W.1 is the complainant and P.W.2 is his nephew. P.W.3 is the mediator for the trap organized against the accused officer. P.W.4 is the Bill Collector, Revenue Wing, Visakhapatnam Municipal Corporation. P.W.5, Deputy Superintendent of Police, ACB, Visakhapatnam, is the Investigating Officer. 5. According to P.W.1, he purchased a house situated at Ramnagar Area of Sriharipuram, Visakhapatnam, for a sum of Rs.87,000/- from one Smt. Undi Sasikala, under a Sale Deed dated 24.11.1993 and, his vendor also handed over to him the tax pass book and the title deed with regard to the said property. At the time of purchase of the property, the tax payable was Rs.210/- per half year. Having purchased the property, he applied for mutation of his name in the municipal records and to that effect he paid Rs.200/- by way of a challan on 6.6.1994. Thereafter, on the instructions of P.W.4 the Bill Collector of the area concerned, himself and his nephew P.W.2 met the Revenue Inspector, the accused officer, at Malkapuram office, on 10.6.1994 and requested him to incorporate his name in the municipal records. Then, the accused officer informed him that he has to pay Rs.2,400/- as tax as against Rs.210/- per half year. When he questioned as to how the tax was increased, the accused officer again said that he has to pay Rs.2,400/- as tax for every six months. Then, he asked the accused officer that he would deposit the money in the bank if the name of the branch was informed to him. At that time, the accused officer stated that he need not go to bank and it is sufficient if he pays the amount to him. Again on 13.6.1994 when himself and P.W.2 went to the office of the accused officer, the accused officer told him that unless he paid the amount demanded by him, the work would not be done. When he requested the accused officer to reduce the tax amount, the accused officer informed him that in case he pays Rs.1,800/-, he need not pay any amount towards half yearly tax and that he would attend to the work pertaining to mutation and also assured that he would see that there would be no enhancement of half yearly tax to the said house and further advised him to get ready with the said amount of Rs.1,800/- at his house on 14.6.1994 and on that day he would come and receive the said amount. Aggrieved over the said demand, he gave Ex.P.1 complaint on 13.6.1994 to P.W.5. Thereafter, P.W.5 introduced two mediators to him and P.W.2 and, as per his instructions, he handed over Rs.1,800/- consisting of 18 currency notes of hundred rupee denomination to one of the mediator and the serial numbers of the said notes were reduced into writing in a report and phenolphthalein powder was also applied to the said notes and a constable kept the tainted currency notes in his left side upper shirt pocket. P.W.5 further instructed him not to touch the said tainted currency notes until the accused officer comes to his house and further demands for the said amount and also advised P.W.2 to observe as to what transpires between him and the accused officer in his house and to give a signal to the trap party by removing his spectacles and by wiping his face with handkerchief. Accordingly, on the date of incident at 10.30 a.m. the accused officer accompanied by P.W.4 reached his house and demanded him to pay the bribe amount. Then he took out the currency notes from his left side shirt pocket and gave the same to the accused officer, who took the same with his right hand and counted it with his both hands and then kept the said amount in his left side pant pocket. At that time, P.Ws.2 and 4 were present. In the meanwhile, P.W.2 gave a pre-arranged signal to the Investigating Agency and, on their arrival, himself and P.W.2 narrated what happened between him and the accused officer and later P.W.5 recorded his detailed statement. 6. In his evidence P.W.2 supported the entire version of P.W.1 in all aspects in connection with the demand and acceptance of bribe amount by the accused officer. 7. P.W.3, mediator, deposed that during the period of trap, he worked as Special Deputy Tahsildar, Visakhapatnam and, on a requisition from the Collector on 13.6.1994, himself and another mediator, Senior Assistant, R.O.R. Visakhapatnam, went to the office of P.W.5 who introduced them P.Ws.1 and 2 and later explained about the trap proceedings. Accordingly, on 14.6.1994 they started in two separate vehicles at 7.00 a.m. and reached Sriharipuam area at about 7.30 a.m. and after reaching that area, P.W.5 reiterated the earlier instructions to P.Ws.1 and 2 and asked them to proceed to the house of P.W.1. Later on, he saw the accused officer and P.W.4 coming on a scooter and parking the scooter in front of the house of P.W.1 and entering into the house of P.W.1 and P.W.2 receiving them and taking them into the living room of P.W.1. At about 10.45 a.m. P.W.2 came out of the house of P.W.1 and gave the pre-arranged signal. On that, all of them rushed into the living room of P.W.1. By then P.Ws.1 and 2, the accused officer and P.W.4 were found sitting in the living room of P.W.1. P.W.5 disclosed their identity and, the details of the identity of the accused officer as well as P.W.4 were incorporated by him in the mediators report. At the time of disclosure of the identity of P.W.5, the accused officer made an attempt to rinse the fingers of his both hands, on that P.W.5 directed him not to do so, prepared two different glasses of sodium carbonate solutions and conducted phenolphthalein test in front of the witnesses and the phenolphthalein test also proved positive. He further deposed that he himself picked out a bunch of currency notes from the left side pant pocket of the accused officer and the another mediator took charge of those currency notes at the instructions of P.W.5 and himself and another mediator again verified the numbers of the currency notes with the numbers mentioned in Ex.P.5 pre-trap proceedings and they were tallied and thereafter P.W.5 seized the currency notes worth Rs.1,800/-. 8. P.W.4, the Bill Collector, Revenue Wing, Visakhapatnam Municipal Corporation, turned hostile and did not support the case of the prosecution. 9. P.W.5, the Investigating Officer, narrated the entire happenings from the date of receipt of Ex.P.1 complaint dated 13.6.1994 from P.W.1 till completion of investigation and also stated that P.W.4, during his examination, gave a different version that the accused officer received the bribe amount. 10. After evaluating both the oral and documentary evidence, the learned Special Judge convicted and sentenced the accused officer as stated supra. Being aggrieved by the same, he filed this Criminal Appeal. 11. This Court heard the submissions of both sides and also perused the entire evidence as well as the documents produced in connection with the same. 12. Learned counsel for the appellant-accused officer submitted that the learned Special Judge failed to consider the evidence elicited during the cross examination of the witnesses, that Ex.P.2 application drafted by P.W.2, which was denied by him, creates a doubt about its authenticity, that there is a discrepancy in the door number mentioned in the challan and Ex.P.2 application, that there is a doubt regarding demand and acceptance of money by the appellant from P.W.1, that the evidence of P.W.4 is not taken into consideration, and that the possibility of insertion of tainted money by P.W.1 in the left side pant pocket of the appellant was not considered by the learned Special Judge. 13. Per contra, the learned Public Prosecutor submitted that the prosecution clearly proved the demand and acceptance of bribe amount by the appellant-accused officer and the accused officer failed to rebut the presumption under Section 20 of the Act and there is no valid suggestion or an attempt made by him to rebut the presumption except stating that P.W.1 inserted the money into his pocket. 14. The evidence of P.Ws.1 to 3 gains more importance in this case. Admittedly, there is no motive or enmity between the accused officer and P.W.1. Further, in the evidence of P.W.1, nowhere it is suggested that with an intention to implicate the accused officer he lodged the complaint. In his evidence, P.W.1 also stated that the amount of Rs.2,400/- was demanded as tax for the first time. When P.W.1 questioned as to why he should pay the said amount since there is no rise in the tax, the accused officer has not answered properly. Further, when P.W.1 sought for the name of the bank in which he has to deposit the said amount, the accused officer replied that there is no need of depositing the money in the bank and asked P.W.1 to give the amount to him. The accused officer also informed P.W.1 that if the said amount is given, he will take care of the mutation and P.W.1 need not pay any further half yearly tax. Further, on the request of P.W.1, he has reduced the demand to Rs.1,800/-. If really P.W.1 intended to implicate the accused officer, it is not necessary for him to say that the demand was made by the accused at the first instance as a tax for the property and also to request the accused officer to reduce the demand. The demand of the appellant-accused officer was substantiated by the documents marked as Ex.P.3 Tax Pass Book which clearly indicates that during the relevant period, the tax payable was Rs.210/- per half year. The said evidence of P.W.1 clearly indicates that the accused officer demanded the money as bribe. The evidence of P.W.1 before the Court as to the manner in which he lodged the complaint inspires confidence of the Court that he deposed truly and without any intention to convict the accused officer. 15. The evidence of P.W.2 in all aspects corroborates the evidence of P.W.1 and the evidence of the said two witnesses not shattered by the cross examination of the accused officer as stated by the learned Special Judge. Further, it is suggested to P.W.2 that himself, Corporator Pydiraju and G.V.K. Ratna Raju prevailed upon P.W.4, Bill Collector, to bring the accused officer to the house of P.W.1 on 14.6.1994. The same suggestion was denied. Further, the evidence of P.W.4 who turned hostile and tried to support the case of the prosecution clearly established that the said suggestion with intent to rebut the presumption also failed. In the cross examination, here and there some discrepancies were raised by the accused officer regarding Ex.P.2, but the same cannot be a ground, since it is flimsy in nature and not more relevant to decide the present case. Further, nowhere it is suggested by the accused officer that due to some previous motive or enmity, the false case is foisted by P.W.1. 16. P.W.3’s evidence too inspires confidence of the Court. His evidence is also not shattered by the defence. He supported the case of the prosecution in all aspects, more particularly, regarding the contents of the complaint and the trap proceedings. Hence, there is no need to doubt the evidence of P.W.3 who acted as a mediator. 17. The evidence of P.W.4, which is in support of the accused officer, can be relied upon, is a question. The facts and circumstances of the case clearly indicate that he is the person who is working as a Bill Collector and who directed P.W.1 to meet the accused officer and also advised P.W.1 to follow his instructions and his role in the entire episode seems to be in the nature of co-accused. But, there is no demand and acceptance by the said person who has been cited as a witness. The evidence adduced by P.W.4 that the money was inserted in the pocket of the accused officer is highly unbelievable and he, with intent to save his superior officer, deposed in that manner. 18. The doubt raised by the learned counsel for the appellant regarding the phenolphthalein test also to be scrutinized cautiously. As per the evidence of P.Ws.3 and 5, the accused officers’ both hands were subjected to phenolphthalein test, even prior to the tainted money was taken by him from his pant pocket. Whereas, in order to substantiate the version of the accused officer that the money was inserted in his pant pocket, it is suggested that after the money was taken from the pocket of the accused officer, the phenolphthalein test was conducted. But, the said suggestion was denied by P.W.3 as well as P.W.5 the investigating officer. Even assuming for a moment that the amount was inserted in the pant pocket of the accused officer and the same was handed over by the accused officer to the Investing Officer P.W.5, the possibility of positive result for both hands of the accused officer does not arise. Hence, this Court is of the view that it is a feeble defence taken by the appellant herein. 19. In the light of the foregoing discussion, this Court is of the view that the prosecution established its case beyond all reasonable doubts and the learned Special Judge has considered the oral and documentary evidence in proper perspective and rightly found the accused officer guilty and there are absolutely no grounds to interfere with the conviction and sentence recorded by the trial Court. 20. Accordingly, the Criminal Appeal is dismissed, confirming the judgment, dated 31.10.2003, made in C.C.No.40 of 2000, on the file of the III Addl. District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam. The appellant is directed to surrender before the trial Court on or before 17.10.2011 to serve the remaining sentence, on his failure, the trial Court is at liberty to issue warrant to secure him. __________________ RAJA ELANGO, J 30th August, 2011 cbs HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1163 of 2003 (Dismissed) 30th August, 2011 cbs HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1163 of 2003 Dated: 30-08-2011 BETWEEN: B. Sreerama Murthy … Appellant/ Accused AND The State – represented by D.S.P., A.C.B., Visakhapatnam. …Respondent THIS COURT MADE THE FOLLOWING: