THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 256 OF 2003 JUDGMENT: 1. This Criminal Appeal is directed against the judgment dated 27.01.2003 in Calendar Case No.19 of 2000 on the file of the Special Judge for C.B.I. Cases, Visakhapatnam, whereunder and whereby the appellant/sole accused was convicted of the offences under Sections 7 and 13(1)(d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for one month, under each count. 2. The brief facts as depicted by the witnesses examined on behalf of the prosecution may be stated as follows: The appellant was working as Income Tax Officer in Ward No.4 of Guntur in the year 1999. His duties included, among other things, to conduct survey under Section 133-A of the Income Tax Act. Having come to know that P.W.2 was conducting various businesses and amassing wealth without filing income tax returns, the appellant went to M/s. Vijayalakshmi Printers, which was being run by P.W.2, on 5.11.1999 and surveyed the premises with the assistance of Income Tax Inspectors. During survey, his assistants seized number of documents and books, and the same were taken to the office of the appellant. During the said survey, P.W.1, who is husband of P.W.2 and was then working as Lecturer in T.J.P.S. College, Guntur, was present. As the appellant had instructed P.W.1 to meet him on 8.11.1999, he went to the appellant’s office and requested the appellant to sort out the matter and return the books. The appellant is alleged to have told that the printing press had not maintained the accounts properly and they might have to pay income tax of about Rs.50,000/-. Then, the appellant is alleged to have demanded Rs.15,000/- to reduce the tax to Rs.20,000/-. When P.W.1 met the appellant on 15.11.1999, the latter demanded Rs.5,000/- to be paid as part payment on the next day. As he did not want to pay the said amount, P.W.1 approached P.W.4-C.B.I. Inspector, who was then camping at Guntur and gave Ex.P4-complaint. P.W.4 asked P.W.1 to come on 16.11.1999 with money. Accordingly, P.W.1 went to the Camp Office of P.W.4. Mean while, P.W.4 procured two mediators viz. P.W.3 and another. P.W.4 conducted pre- trap proceedings which were recorded in Ex.P6. P.W.3 was asked to accompany P.W.1 to the office of appellant and follow the conversation and give signal by wiping his face with hand-kerchief if the appellant demanded and accepted the bribe. Thereafter, P.Ws.1 and 3 proceeded to the office of the appellant and other members of the trap party followed them, and reached the office at 10.40 A.M. P.Ws.1 and 3 entered into the office and found the appellant in his seat. P.W.1 introduced P.W.3 as their part time Accountant. The appellant put some questions to P.W.3 and the latter answered some. Then P.W.1 told the appellant that he brought the amount of Rs.5,000/- as demanded by him. Then the appellant told him that he would call the Inspector to his chambers. But, on enquiry he found that the Inspectors were not available. Thereafter, P.Ws.1 and 3, who were sitting on chairs to the right of the table, rose and started going out of the chambers. P.W.3 went out of the chambers while P.W.1 lagged behind. It is alleged that when the appellant asked P.W.1 to give the amount, the latter dropped the amount in the table drawer opened by the appellant and immediately he rushed out of the chambers, climbed down the steps and gave the signal. Thereupon the trap party went up the stairs and entered the chambers of the appellant. When Sodium Carbonate solution test was conducted on the fingers of both hands of the appellant, it proved negative. When questioned, the appellant stated that he neither demanded nor accepted any bribe. When he was further questioned as to where the money was, he replied that he did not know anything about it. When P.W.4 asked P.W.1, he showed the table drawer. P.W.3 opened the drawer and removed the amount. When the appellant was questioned, he replied that he did not know how the currency notes came into the drawer. P.W.4 did not take the finger prints on the table drawer. Post trap proceedings were drafted as in Ex.P7. Then P.W.4 arrested the appellant and released him on bail. He also made search of the office and Ex.P9-search list was prepared. Later on the directions of S.P., the case was handed over to P.W.6, who conducted further investigation, obtained sanction and after completion of investigation, filed the charge sheet. 3. The charges framed against the appellant are as follows: “CHARGE NO.1: That you B.Suresh Babu, during November, 1999 while was working as I.T.O. in ward- IV of Guntur and that your duties were among others to conduct survey U/Sec.133 (A) of Income Tax Act at various premises situated within your jurisdiction in order to bring new establishment within the purview of Income Tax and that on 16th day of November,1999 at about 10.40 A.M. at your office situated 2nd floor of Income Tax Building, Guntur, accepted or obtained an amount of Rs.5,000/- from one V.Laxmana Reddy, Lecturer, T.J.P.S. College, Guntur, who is the husband of Smt.V.Vijaya Laxmi proprietrix of M/S Vijaya Laxmi Printers, situated at shop No.7, Rama Raju Towers, 8/2, Arandal Peta, Guntur, for yourself as an illegal gratification other than the legal remuneration, as a motive or reward for doing an official favour in the exercise of your official functions namely for sorting out the matter with regard to the payment of Income Tax and to return the books of accounts etc., which were taken by you on 5-11-99, in pursuance of your earlier demands made on 8-11-1999 and 15-11-99 and thereby committed an offence punishable U/Sec.7 of the Prevention of Corruption Act which is within my cognizance. CHARGE NO.2: That you on or about the same day, and the time and the place as mentioned in the charge No.1 being a public servant, by corrupt or illegal means, obtained for yourself a pecuniary advantage namely an amount of Rs.5,000/- when paid by the said V.Laxmana Reddy, Lecturer, T.J.P.S.College, Guntur, who is the Husband of Smt.V.Vijaya Laxmi, Proprietrix of M/S Vijaya Laxmi Printers situated at Shop No.7, Ramaraju Towers, 8/2 Arandalpet, Guntur, in pursuance of your earlier demands made on 8-11- 99 and 15-11-99 at your office, by abusing your position as such public servant and thereby you have committed an offence punished U/Sec. 13(2) r/w 13(1) (d) of Prevention of Corruption Act-1988 which is within my cognizance.” When the charges were read over and explained to the appellant, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 6 and got marked Exs.P1 to P20, besides case properties M.Os. 1 to 3. 5. After closure of prosecution evidence, the appellant was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of the prosecution witnesses, for which he denied. The case of the accused is that he does not know how the tainted currency notes M.O.1 were found in his table drawer. 6. On behalf of the accused, no oral evidence was adduced but Exs.D1 to D4 were marked. 7. The trial Court, accepting the evidence of prosecution witnesses, found the appellant guilty of the offences under Sections 7 and 13(1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988, accordingly convicted and sentenced him as above. Challenging the same, the present appeal is preferred by the appellant/accused. 8. Now, the point for determination is whether the prosecution proved the guilt of the appellant/accused for the charges under Sections 7 and 13(1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988 ? 9. The learned senior counsel Sri T.Bali Reddy, appearing for the appellant contended that, except the solitary testimony of P.W.1, there is no other evidence with regard to demand and acceptance made by the appellant to show any official favour to P.W.2; that, because of so many infirmities in the evidence of P.W.1, it is not safe to place any reliance on his evidence alone; that, P.W.1 had grouse against the appellant because the appellant seized the documents relating to the printing press being maintained by his wife P.W.2; that, P.W.1 was not directed to give any signal after receipt of the tainted currency notes by the appellant, but, the trap laying officer P.W.4 directed P.W.3 to give the signal; that, one of the instructions given to P.W.3 was that in case the appellant did not accept the tainted currency notes there is no need for him to give any signal, and perhaps that is the reason why P.W.3 did not give any signal as the appellant did not accept money; that, because of the grouse entertained by the P.W.1, he came down to the down stairs and gave the signal though he was not asked to do so, and it shows his anxiety to implicate the appellant falsely. It is further contended by the learned senior counsel that contented that, no conversation took place with regard to the official favour to be shown for return of the books relating to the press when P.Ws.1and 3 were present in the chambers of the appellant; that, while the appellant turned to his left side to pick out some files in the almirah, the possibility of P.W.1 keeping the tainted amount in the second drawer on the right side of the table, cannot be ruled out; that, the investigating officer has not conducted sodium carbonate solution test in respect of the contents in the table drawer, and therefore, seizure of the currency notes from the table drawer itself is doubtful; that if really the appellant demanded any amount from either P.W.1 or P.W.2, nothing prevented him to accept the money when P.W.1 offered the same in the presence of P.W.3, and there was no need for the appellant to direct P.W.1 to give the amount to one of the Inspectors. It is further contended that, when the appellant conducted survey in the printing press of P.W.2, it was published in news papers and so P.W.1 entertained grouse against the appellant, and in view of the above circumstances, P.W.1 cannot be put in the category of wholly reliable witness. Hence, he prays to set aside the convictions and sentences recorded against the appellant. The learned senior counsel relied on some decisions in support of his contentions, which will be referred to at appropriate time. 10. On the other hand, Sri T.Niranjan Reddy, the learned Counsel appearing for the C.B.I., contended that, in the presence of P.Ws.1 and 3, the appellant agreed to accept the gratification and directed P.W.1 to handover the same to one of the Inspectors; that, the visit of appellant to the printing press of P.W.2 and seizure of certain books relating to the press, are not in dispute; that, there is no other reason for P.W.1 to foist a false case of this nature against the appellant; that, it is not possible for any other person, including P.W.1, to keep the tainted currency notes in the table drawer of the appellant; that, when once the appellant received or agreed to accept the gratification, the presumption under Section 20(1) of the Act would come into play and then the burden shifts to the appellant to rebut the same, but the accused has not discharged his burden; that, the trial court, after an elaborate consideration of the evidence on record, rightly placed implicit reliance on the evidence of P.W.1, and accordingly convicted and sentenced the appellant, and there are no grounds to interfere with the same. 11. The essential ingredients of Section 7 of the Act are: i) that the person accepting the gratification should be a public servant; ii) that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 12. In so far as the offence under Section 7 of the Act is concerned, the initial burden is on the prosecution to establish that the appellant demanded illegal gratification to show an official favour and received or agreed to receive the same. After discharge of the said burden only, the presumption under Section 20(1) of the Act can be drawn. It is not in dispute that survey was conducted by P.W.1 in the printing press of P.W.2 on 5.11.1999 from 2.00 P.M. to 10.00 P.M. It is also not in dispute that, at the time of survey, the appellant along with Income Tax Inspectors, seized certain documents from the printing press. It is alleged that, in that connection, P.W.1, who is the husband of P.W.2, met the appellant, who informed him that the press had to pay tax up to Rs.50,000/- and if he pays Rs.15,000/-, the tax would be reduced to Rs.20,000/-, and demanded to pay that amount, and when P.W.1 expressed his inability to pay that amount, the appellant directed P.W.1 to pay Rs.5,000/- in the first instance and the remaining amount within one week thereafter. Not willing to pay that amount, he lodged the complaint with P.W.4, who was camping at Guntur. P.W.4 secured presence of P.W.3 and another mediator and prepared Ex.P6-pre-trap proceedings, duly noting down numbers of the currency notes, applying phenolphthalein powder and giving necessary instructions to P.W.3 to give the pre-arranged signal after demand and acceptance of bribe by the appellant. Thereafter, P.Ws. 1 and 3 proceeded to the office of the appellant. 13. It is not in the evidence of P.Ws. 1 and 3 that, on the date of trap, the appellant directly demanded P.W.1 to pay certain amount for the purpose of showing official favour i.e. reducing the tax relating to the income of the printing press maintained by P.W.2. On the other hand it is in their evidence that when P.W.1 stated to the appellant that be brought the amount demanded by him, the appellant asked P.W.1 to give that amount one of the Inspectors, and that when P.W.1 expressed that he did not know the Inspector, the appellant made a call to the Inspectors and as both the Inspectors were not available, the appellant asked P.W.1 to keep the amount in the table drawer. With regard to keeping of the amount in the table drawer of the appellant, except the solitary testimony of P.W.1 there is no other evidence. When P.W.3 was specifically directed to come out from the office room of the appellant to give the pre-arranged signal after demand and the acceptance of bribe by the appellant, accordingly he got up and came out of the room with a view to give pre-arranged signal. Within a few minutes thereafter P.W.1 followed him and informed that the appellant asked him to keep that amount in the table drawer and accordingly he kept the amount there. If really, the sequence of events as testified by P.W.1 had taken place, then there was no need for him to come to the down stairs anxiously and to give a signal. 14. According to P.W.3, in case the appellant accepts the money he was asked to give signal by wiping out his face with hand kerchief, and in case if the appellant did not accept the amount, he was asked to give signal by putting his hand finger in the ear. When the appellant had not at all accepted the money, there was no need to give any signal. Further more, the place where P.W.3 was standing outside the office room would be visible to the members of the trap party who were in vantage positions. The evidence of P.W.3 is very clear that there was no conversation between P.W.1 and the appellant with regard to the affairs of the printing press or levying of tax to the tune of Rs.50,000/- or reduction of the same to Rs.20,000/- if P.W.1 pays Rs.15,000/-. Similarly, P.W.3 admitted that P.W.1 did not state to the appellant that the amount was brought by him as directed. 15. Even though P.W.2 is the proprietrix of the printing press it is not the case of prosecution that the appellant demanded P.W.2 to pay certain amount to show a favour with regard to reducing of tax. Her evidence is only with reference to conducting survey in the press and taking out relevant records relating to the press to the Income Tax Office, Ward No.4. Therefore, from the above it is clear that the entire case of the prosecution rests upon the solitary evidence of P.W.1 with regard to demand and acceptance. When a case rests upon the evidence of a solitary witness, the law is well settled that it must be unimpeachable, true, trustworthy, free from doubt and must be put in the category of ‘wholly reliable’. Then only such evidence needs no corroboration. When the evidence of a witness is put in the category of ‘wholly reliable’, then only there is no legal bar to base conviction on the solitary testimony of the witness. When the evidence of witness is neither wholly reliable nor wholly unreliable, then such evidence requires corroboration. On this aspect, it is pertinent to refer to a decision in VADVIVELU THEVAR V THE STATE OF MADRAS [1], wherein it was held thus: (para 10) “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” Basing on the above principles in mind, it has to be seen whether P.W.1 is wholly reliable witness or not. 16. P.W.1 was working as Lecturer in Economics in T.J.P.S. College, Guntur. He admitted that he was filing Income-Tax returns from the year 1984 onwards and he filed Exs.D2 to D4, which are Income-Tax returns for the assessment years 1997-1998, 1998-1999 and 1999- 2000, and that he did not file Income Tax returns for the years 2000-2001 and 2001-2002. The explanation given by him is that the Income-Tax authorities issued a letter asking him to submit returns of his wife relating to Eleve Chits, Vijayalakshmi Printers and Vijayalakshmi Graphics. He admitted that he was Joint Secretary of Guntur District Aksharadeepthi i.e. a total literacy campaign, and that he engaged an advocate to defend himself before the A.P. Lokayuktha in a case against him leveling allegations regarding misuse of funds by the administration, and that the District Collector, Chief Executive Officer, Guntur Z.P.P. and himself faced the enquiry. According to P.W.1, the case was closed. He also admitted that the Income Tax officials questioned him with reference to the loose sheets containing the names and figures of subscribers of Chits, borrowers, creditors and his investments in chits, promissory notes and private loans procured for constructing his house. It is also not in dispute that construction of his house, purchase of shop and children education in private engineering college happened during 1996 to 1999 i.e. before conducting survey by the appellant along with his subordinates in the printing press. P.W.1 admitted that he borrowed Rs.1,65,000/- from his wife during the said period as his domestic and family expenditure exceeded his salary income, and that he did not make any enquiry from his auditor as to what would be the tax, interest, penalties and consequences of prosecution, if any, after the survey was conducted on 5.11.1999 and he did not discuss with his Auditor or the Auditor of his wife in between 8.11.1999 to 16.11.1999. 17. It is also not in dispute that, there was publicity by media on the survey conducted by the Income Tax officials in the printing press of P.W.2 on 5.11.1999. It is also not in dispute that, before laying the trap, P.W.1 ascertained from one of the clerks of the office of the appellant about the procedure to be followed to pay tax to the department if he wished to pay in advance and he was informed the code number and further information about obtaining challan if it was to be remitted in the bank. Similarly, P.W.1 has not formulated any idea about the quantum of tax that has to be paid on the income received by his wife from the printing press after the appellant stated to him that his wife had to pay tax to a tune of Rs.50,000/-. Similarly, he had also not enquired as to what is the role of the appellant to be played with reference to the assessment of the tax on the income of the printing press. P.W.1 is not a layman. He was working as Lecturer in Economics. He could have easily collected information from the Income Tax Department and could have easily assessed the tax, if any, payable after deducting admissible expenditure. 18. Further more, if really the appellant demanded the bribe or illegal gratification to show any official favour, nothing prevented him to accept the same in his chambers when P.W.1 informed him that he brought the amount. There was no need for the appellant to direct to pay the amount to one of the Inspectors. But, according to P.W.1, the appellant asked him to keep that amount in the second drawer of the table while he was about to leave the chambers. If the amount was kept, as directed by the appellant, P.W.4 would have conducted sodium carbonate solution test on the contents of the table drawer, as, definitely, the phenolphthalein powder applied to the currency notes must have come into contact with the contents in the table drawer. Even if the contents are not available in the drawer, the investigating officer would have used the cotton swab from the outer layer of the table drawer. It is not in dispute that the trap laying officer conducted sodium carbonate solution test in respect of both hand fingers of the appellant, which proved negative. But, no explanation was given by P.W.4 as to why he did not conduct such similar test in respect of table drawer or contents of the table drawer. If a test is conducted, it can be a positive proof that M.O.1-tainted currency notes have been seized from the table drawer of the appellant. The objective findings of the trap laying officer immediately after laying the trap are very much important circumstances to know whether the appellant received the tainted currency notes or to know whether keeping the tainted currency notes was within the knowledge of the appellant or not. This important circumstance has not been explained by the trap laying officer. Therefore, the very presence of M.O.1-currency notes in the second drawer of the table of the appellant cannot be said to be proved beyond reasonable doubt. 19. Similarly, P.W.1 had not submitted any accounts with reference to his salary for two years. If really, the