THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL NO.2517 of 2004 JUDGMENT: Appellant (a public servant) is the accused in C.C.No.31 of 1994 on the file of the Court of Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad (trial court). He was tried on charges under Sections 7 and 13(1)(d)(i) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act) relating to bribery. He pleaded not guilty. 2. The trial court after considering the evidence let in by both sides, has by its judgment dated 08.11.2004, found the appellant guilty and convicted him of the above two charges and sentenced him to undergo rigorous imprisonment (RI) for one year and a fine of Rs.1,000/- on first count and RI for two years and a fine of Rs.2,000/- on second count with default clause prison sentences with respect to fines. The trial court directed that the substantive sentences of imprisonment shall run concurrently. This appeal is filed questioning the aforesaid judgment. 3. The case of the prosecution is this. At the relevant time the appellant was working as a Senior Assistant, Education Section, Zilla Praja Parishad (ZPP), Karimnagar District and was admittedly a public servant within the meaning of the Act. P.W.1 B.Ramanjaneyulu is the de facto complainant. Earlier father of P.W.1 worked as Headmaster of primary school in a village of Elkathurthy Mandal of Karimnagar District and he died while in service on 17.10.1993. Thereafter on 02.11.1993 P.W.1 gave an application to the District Development Officer of ZPP, Karimnagar through the Mandal Development Officer of Elkathurthy Mandal to appoint him as a teacher as he was eligible for such appointment in terms of G.O.Ms.No.612, G.A.(Ser.A) Department, dated 30.10.1991 which provides for compassionate appointment to the dependant of a deceased employee. The above aspect is not in dispute. 4. The further version of the prosecution is that in connection with the above application P.W.1 met the appellant on 16.12.1993 in the ZPP office and on that day the appellant demanded a sum of Rs.10,000/- for doing favour to P.W.1 to get him posted to a place in Elkathurthy Mandal to which he belongs or a nearby place and on the said date P.W.1 told the appellant to help him and he would pay some amount later on and subsequently on 24.12.1993 the appellant reduced that amount to Rs.5,000/- as P.W.1 expressed his inability to pay Rs.10,000/-. The other details are not necessary. Subsequently P.W.1 as he was unable to pay the bribe gave Ex.P.1 complaint to Sri P.L.Raju the then Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Karimnagar Range, and a case was registered and the said Sri P.L.Raju laid the trap on 04.01.1994 and it was, according to the prosecution, successful. P.W.2 B.Satyanarayana is stated to be the accompanying witness and P.W.3 B.Nagarajeswar Rao is stated to be one of the two mediators for the pre-trap panchanama and also for the post-trap panchanama drafted after allegedly recovering the bribe money of Rs.5,000/- (M.O.1) from the appellant. This M.O.1 money consists of 100 notes of Rs.50/- denomination. It must also be mentioned here that according to the prosecution in the post-trap proceedings held on 04.01.1994 at the time of recovery of money the test of sodium carbonate – phenolphthalein powder on the left hand of the appellant proved positive. The appellant is also said to have given an explanation to the trap laying officer to the effect that P.W.1 highhandedly thursted the money into his left side pant pocket and went away and that he was innocent and he never demanded any money. This explanation of the appellant is also recorded in the second panchanama which is marked as Ex.P.5. 5. The learned counsel for the appellant mainly raised four contentions to show that the charges cannot be sustained. The first is being a Senior Assistant the appellant was never in a position to do any official favour to P.W.1 for giving him a posting as postings are given by the District or Panchayat Development Officer and therefore the version of P.W.1 that the appellant demanded money for posting cannot be believed. The second is based upon the notings in the Ex.P.10 note file. This contention which is connected to the first one is that in Ex.P.10 note file the appellant has already put up a note on 16.12.1993 proposing the posting of P.W.1 at three places i.e. Seetharampur, Molangur and Kesavapatnam and therefore the question of demanding amount and taking it on 04.01.1994 for that purpose does not arise and it should be rejected as improbable. In this connection, the learned counsel for appellant also pleaded that non-examination of Krishna Murthy, the Superintendent, who was the person to forward the note is also fatal to the prosecution case. The third is regarding the trap and recovery of money and it is pointed out on behalf of the appellant that on the date of the trap there was no scope at all for the appellant to demand and receive the money as the appellant was sitting along with several clerks and that P.W.1 himself thursted the bribe money i.e. M.O.1 in the appellant’s left pant pocket and left the place and that the ACB police immediately entered and recovered that money to bolster up the prosecution case. The fourth contention relates to discrepancies in the evidence which according to the learned counsel for appellant raise a doubt about the prosecution case. The appellant also examined D.W.1 S.Komaraiah who was working as a Junior Assistant in the ZPP office at Karimnagar at that time in support of his defence. His counsel also relied upon certain decisions in support of his plea that the charges cannot be sustained and I shall refer to them a little later. 6. On the other hand, Sri R.Ramachandra Reddy, learned Special Public Prosecutor representing ACB Police repelled all the contentions raised by the learned counsel for appellant and argued that the evidence brought on record sufficiently establishes the prosecution case and there is no ground to disturb the judgment of the trial court. He pointed out that the contentions of the defence based upon the incompetence of the appellant to give a posting and also the notings in the Ex.P.10 note file do not in any way weaken the prosecution case. His argument is that when P.W.1 met the appellant on 16.12.1993, on that date itself the appellant agreed to give the amount and the appellant favourably acted on that day itself by putting up a favourable note and later on took the money to further help him. He therefore points out that the entries in Ex.P.10 note file cannot help the appellant. Even with regard to non-examination of the Superintendent Krishna Murthy cited as a witness in the charge sheet, Sri R.Ramachandra Reddy says that if Krishna Murthy is examined he cannot speak more than the contents of Ex.P.10 note file which is an admitted document and consequently non-examination of Krishna Murthy does not in any manner affect the prosecution case. Then coming to the discrepancies he argued that they are minor discrepancies and can be ignored. 7. The point that arises for determination is whether the evidence brought on record by the prosecution proves the charges against the appellant beyond all reasonable doubt as held by the trial court or whether the defences of the appellant can be accepted as probable. 8. Before the point is taken up, it may be noted that the plea of the prosecution that the appellant was a public servant within the meaning of the Act on the date of the offence is not in dispute. A perusal of the trial court judgment would show that a dispute was raised regarding the validity of Ex.P.7 sanction order issued by the Government but the trial court rejected it. In this appeal, the validity of the sanction order has not been argued. Even otherwise it may be noted that Ex.P.7 sanction order was issued by the Government which is the superior authority in respect of all public servants of our state. Its perusal would also show that the Government have considered the matter in all respects and issued it. There is no reason to hold that the sanction order is defective in any manner. That takes me to the merits in the appeal. 9. The third contention of the appellant that the bribe money of Rs.5,000/- marked as M.O.1 was thursted into his pocket is first taken up. The trial court after considering the evidence of P.Ws.1 and 2 and P.Ws.3 and 4 mediators and P.W.5 the Inspector has accepted the prosecution version that the appellant has taken M.O.1 bribe money after demanding the same from P.W.1 on the evening of 04.01.1994. It should be noted here that the Deputy Superintendent of Police Sri P.L. Raju who conducted the trap and who is cited as a witness was not examined but P.W.5 the Inspector of ACB who accompanied him and assisted in the raid was examined to speak about the trap. P.W.5 in his cross- examination stated that the Deputy Superintendent of Police was in America at that time and perhaps he was not examined for that reason. This P.W.5 spoke about the trap and he was also thoroughly cross-examined. Nothing has been brought to the notice of the trial court or this court to show that non-examination of the Deputy Superintendent of Police has resulted in any prejudice to the appellant. Thus it follows that the appellant cannot have any grievance on that account. 10. Now coming to the merits in this third contention, P.W.1 spoke about the earlier demand of the appellant for bribe and further P.Ws.1 and 2 and the two mediators and P.W.5 spoke about the trap, the receipt of M.O.1 money by the appellant from P.W.1 and the recovery of the same from the left pant pocket of the appellant. It may be noted that the sodium carbonate solution test proved positive on the left hand of the appellant and the evidence shows that the M.O.1 money was also recovered from the left pant pocket of the appellant. Regarding the thrusting of the money, even going by the version of the appellant he was sitting along with many clerks i.e. more than ten in the hall of the ZPP office, Karimnagar. M.O.1 money consists of 100 notes of Rs.50/- denomination and therefore going by the said notes, it cannot be said that the bundle of notes would be so thin so that anybody can conceal it in his palm and fingers and thrust it into the appellant’s pocket in the midst of the other colleagues of the appellant in a split second as pleaded by the appellant. The version of P.W.1 is that after he gave his application to the concerned officer for a nearby posting as advised by appellant he met the appellant on that evening and the appellant called him to a corner nearby an almyrah in the place or hall where he was sitting ensuring secrecy and took the money. This version of P.W.1 which is supported by P.W.2 can be said to be clearly more probable. 11. It should also be noted that having regard to the fact that other clerks were also sitting in the same hall along with the appellant, it would not have been possible for the appellant to thrust M.O.1 money into the pocket of the appellant and leave the place easily unless the appellant voluntarily received it as spoken to by P.W.1. The appellant could have shouted at P.W.1 and hearing him the other clerks could have come and apprehended the appellant for doing the mischief of trying to malign a public servant and there could have been an uproar also in the office if the appellant’s version is accepted as true. 12. It may also be noted here that the ACB Inspector in the first instance conducted the sodium carbonate solution test and in that test only the left hand of the appellant showed a positive result. It was only after conducting the said test the appellant took out M.O.1 money from his left pant pocket and gave it to the Inspector. This is admitted. If the defence of the appellant is true his left hand should not have showed a positive result for the above test for the simple reason that the appellant would not have touched the amount at all when it was thrusted into his pocket. It can be said that the above test proved positive even before the money was taken out and this shows that the appellant has taken the money with his left hand and put it in his left pant pocket and this inference which is recorded in Ex.P.5 second panchanama for the post-trap proceedings is permissible. The appellant’s counsel has not been able to show how the above inference can be rejected. 13. The appellant examined D.W.1 S.Komaraiah, the then Junior Assistant in the ZPP office at Karimnagar who is said to have been sitting with the appellant in the same hall. He of-course supported the appellant’s defence that P.W.1 thrusted the money in his pocket. His version shows that P.W.1 kept quiet when the money was thrusted in his pocket and he too (D.W.1) did not make any attempt to apprehend P.W.1 and return the money back to him or detaining him for trying to influence a public servant. The above circumstances in the evidence would show that the defence of the appellant regarding thrusting of money cannot be accepted as a probable defence and D.W.1 must be held to have given evidence only to accommodate the appellant. 14. The appellant’s counsel relied upon Gulam Mahmood A. Malek v. State of Gujarat[1] to show that the prosecution has not examined any of the clerks available in the office of the appellant at that time who could have acted as independent witnesses to show that the appellant’s defence was not correct and that therefore the appellant’s defence should be believed. In the above Supreme Court case the public servant therein was the Bench Clerk in a criminal court and he was trapped in the court room for demanding bribe to get a matter adjourned. The trial court therein observed that since the trap was in a court room, there may be several persons there and the prosecution did not examine even a single person i.e. as independent witnesses and therefore it recorded acquittal. The Supreme Court ultimately restored the said judgment of the trial court holding that independent witnesses could have been examined and their non-examination was a circumstance weighing in favour of the accused public servant therein on those facts. The contention of the appellant’s counsel is that in the present case also the prosecution should have examined the other clerks present in the hall and their non- examination is fatal. In the present case, it is the version of P.W.1 that the appellant took money by calling him to a corner near an almyrah and took the money and thereafter he left. 15. In Ex.P.5 i.e. the second panchanama which was drafted for the post-trap proceedings it will be found that the Deputy Superintendent of Police called 13 staff members present in the said hall and both the mediators enquired with them including Krishna Murthy, the Superintendent, who is shown as the 13th member in the said panchanama, as to whether they have seen what happened in the said office. It is recited in Ex.P.5 that they did not observe as to what transaction took place between P.W.1 and the appellant but all of them stated that they observed that two new persons who could be only P.Ws.1 and 2 talking to the appellant on the evening of 04.01.1994. The names of the 13 staff members are mentioned in Ex.P.5. It is quite possible that they would not have observed as to what exactly transpired between the appellant and P.Ws.1 and 2 as everybody will be busy with their office work. Thus the Deputy Superintendent of Police did not cite them as witnesses. Therefore the appellant cannot make any complaint about their non-examination. In the aforesaid Supreme Court case even the date on which there was necessity for paying the bribe was found to be doubtful and further the public servant therein was taken into a separate room and nobody could see what transpired. It was in those circumstances, non- examination of independent witnesses present in the court room was held to be fatal. 16. In the present case in view of the above recitals in the second panchanama non-examination of the other staff members cannot be treated as fatal and hence the above decision cannot help the appellant. The evidence of P.Ws.1 to 5 regarding payment of bribe amount to P.W.1 on 04.01.1994 and the recovery of the said bribe amount from him on the same evening appears to be more probable and acceptable as pleaded by the prosecution. 17. The first contention of the appellant is now taken up. It is true that at the relevant time, the appellant was only a Senior Assistant and it is also true that posting of teachers was not in his hands or within his power. Here it may be noted that according to clause (d) of Section 7 of the Act to demand a bribe the official need not be in a position to do an official favour and this provision has been designly enacted to cover cases where persons not in a position to do official favour may also demand and take bribes to make money. Thus the mere fact that the appellant was not in a position to give a posting for the teacher’s post by itself is not a ground to accept the appellant’s defence. It may be noted that as a Senior Assistant the duties of the appellant were to put up office note showing the vacancies of teachers’ posts for filling them up. 18. It is the case of P.W.1 in his Ex.P.1 report and also in his evidence that after giving his application for appointment in the ZPP office he went to the said office and enquired with the appellant about the stage of his application on one occasion before 16.12.1993 and on another occasion on 16.12.1993 and thereafter again on 24.12.1993 for getting a posting at a place in his native mandal i.e. Elkathurthy Mandal or a place nearby that mandal and that appellant first demanded Rs.10,000/- to help him and reduced it to Rs.5,000/- later on 24.12.2003 and P.W.1 told him that he would meet him (appellant) in the first week of January, 1994 and in the meanwhile requested him to do the needful and the appellant agreed to do it. It would be found from the evidence of P.W.1 that he told appellant on 16.12.1993 itself to help him with a promise that he would pay the amount though a lesser amount than Rs.10,000/- some time later. Thus the contention of the appellant that that he could not have demanded any money because of his incapacity to give a posting cannot be accepted in this case. It may be noted that when everything has to be brought on note file regarding postings and a Senior Assistant has to put up a note, there is nothing strange in a person like P.W.1 believing the words of the appellant and a person in the position of appellant holding out a promise to do a favour in putting up of the note and demanding bribe for that. 19. Then coming to the third contention of the appellant which is connected to his above first contention, it is true that Ex.P.10 note file shows that on 16.12.1993 itself the appellant did put up a note proposing P.W.1 to three places i.e. Seetharampur, Molangur and Kesapatnam with a further suggestion that P.W.1 can be posted at any one of the above three places and this note was admittedly approved by Krishna Murthy, the Superintendent. However the Panchayat Officer asked for vacancy in Manthani area which is a far of area for P.W.1 and that is where the problem started for P.W.1 again. Then the appellant has put up the vacancy position in Manthani area and thereafter the note file does not contain any further entries. It transpires from the evidence of P.W.1 that on 04.01.1994 during day time before paying the amount when P.W.1 met him again the appellant advised him to put up another application for a nearby posting and he accordingly gave it to the officer and after giving that in the evening at about 5.20 PM the P.W.1 says that he gave bribe money to the appellant on that day itself i.e. 04.01.1994 and the ACB police i.e. the DSP seized it. There is nothing unnatural in the above evidence and the sequence of events as that is supported by the evidence of the mediators. What should be noted is that on 16.12.1993 itself at the request of P.W.1, the note file shows, the appellant proposed P.W.1 to three places. 20. It may be noted that on 16.12.1993 P.W.1 met the appellant for the second time and it was on that day the appellant demanded money from P.W.1 and P.W.1 went away according to his evidence informing him that he would pay, to repeat, the amount and requested to do the needful pleading with him that he would pay the amount though not Rs.10,000/- because of his difficulties and requested him to reduce it. Normally a Senior Assistant in the office is required to put up only vacancies and the availability of candidates but he is not expected to put up a proposal as to which place a particular candidate should be posted but the appellant exceeded that limit in the case of P.W.1 inasmuch as he proposed him for three places which are already mentioned and which are nearby to his native mandal and Ex.P.10 note file makes this clear. In view of this it follows that an inference can be drawn that the appellant did so expecting money from P.W.1 and he received it on 04.01.1994 after advising P.W.1 to put up another application seeking posting at a nearer place as the officer has called for vacancies existing in Manthani area which is a far off place for P.W.1 and it was on that day i.e. 04.01.1994 the appellant took the bribe money which was recovered from him. It is clear that the appellant has taken the money only to help P.W.1 in getting a posting to a place of his choice. Thus the non-examination of the Superintendent Krishna Murthy does not make any difference to the prosecution case and it does not weaken it. One aspect should however be noted here. In his cross-examination P.W.1 admitted that he came to know that on 23.12.1993 he was posted at Manthani. Therefore a question may arise as to why the appellant should take money since P.W.1’s appointment was already given. Here it should be noted that on 04.01.1994 according to P.W.1 appellant advised him to give a fresh application seeking posting to a nearby place and it was in that connection it follows that the appellant took the money to further help P.W.1 though he already put up a note for a nearby place but which did not materialise and this view gains support from the fact that money was recovered from the appellant as seen under his third contention. It may be noted that the language of Sections 7 and 13(1)(d)(i) of the Act cover receipt of illegal gratification for favour already done expecting it from a prior demand and receiving it and for favour i.e. going to be done in future. Accordingly the third contention of the appellant is also rejected. 21. That takes me to the fourth contention which is based on discrepancies in the evidence and one omission. Of the five witnesses examined by