THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 1081 of 2002 Date: 11.03.2010 Between: M. Narayana, S/o Rajaiah, Formerly Executive Engineer, Housing Board, Warangal Division, Warangal, R/o H.No.10-1, Dwarakapuram, Dilsukhnagar, Hyderabad. .. Appellant/Accused And State ACB .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 1081 of 2002 Judgment: This appeal is directed against the judgment dated 27.09.2002 passed in C.C. No. 23 of 1998 by the Principal Special Judge for SPE and ACB Cases, Hyderabad, whereby and whereunder the appellant herein was found guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and was sentenced to Rigorous Imprisonment for a period of one year and to pay a fine of Rs.1,000/- each under both counts, in default of payment of fine he was also directed to undergo Rigorous Imprisonment for three months under both counts. Both the sentences were ordered to run concurrently. 2. The appellant hereinafter will be referred to as accused for the sake of convenience. 3. The brief facts of the case are as follows. The accused officer was working as Executive Engineer, A.P. Housing Board, Warangal Division, Warangal, during the relevant period, as such he is a public servant within the meaning of Clause (c) of Section 2 of the Act. PW.1 is a resident of Togarai village of Karimnagar District and he was doing civil contract works. During the relevant period he was allotted works of Court Yard filling of the Housing Board colony of Karimnagar. Totally there were three works and total value of all the three works was Rs.2,36,000/-. PW.1 had completed the first work in August 1996 and the remaining two works in December 1996. PW.3 S. Srinivasa Rao, who was working as Assistant Engineer in A.P. Housing Board, Karimnagar Sub-Division, was the in-charge for one work. On 07.12.1996 he took measurements and prepared the bill on 09.12.1996 and submitted the same to the Deputy Executive Engineer. He recorded the measurements in Ex.P12 measurement book. The original agreement file pertaining to the work is Ex.P11, in which Exs.P1 to P3 were marked. PW.4 K. Sudershan Reddy was working as Assistant Executive Engineer, A.P. Housing Board, Karimnagar Sub-Division. He had taken the measurements of the remaining two works on 28.12.1996 and on 02.01.1997 and noted the same in the measurement book Ex.P16. He had also prepared the bills and submitted the same to the Deputy Executive Engineer on 06.01.1997. The Deputy Executive Officer, in turn, sent the file to the office of the accused officer. PW.5 Shaik Tajuddin was working as Head Draftsman in the office of the accused officer. He received the bill pertaining to Ex.P12 of PW.1 on 04.01.1997 from Karimnagar sub-division and other two bills covering Ex.P16 were received by him on 08.01.1997 from Karimnagar sub-division. The bills were scrutinized on 10.01.1997 and they were pending with PW.5. According to PW.5, he did not forward those three bills to the accused officer as per his oral instructions. Ex.P1 is the agreement entered by PW.1 with the then Executive Engineer Someswara Babu and Exs.P2 and P3 were the agreements entered by PW.1 with the accused officer. 4. The case of PW.1 is that the accused officer came to the works site on 09.01.1997 and inspected the works done by him and when he asked about the payments the accused officer demanded an amount of Rs.20,000/- towards bribe. It is also his case that the accused officer informed that it is a formality for passing the bill. According to PW.1, he stated that he was a small contractor and he could not pay such a huge amount as bribe. According to PW.1, about seven days thereafter, he again met the accused officer and requested to pass the bills, and that the accused officer informed to PW.1 that he would be visiting Karimnagar on 18th and 19th of January 1997 and directed PW.1 to pay the amount at Karimnagar. On 19.01.1997 at about 8.30 AM PW.1 met the accused officer in Room No.219 of Maneru lodge at Karimnagar and requested him to pass his bills and make payments. However, the accused officer reiterated his demand and when PW.1 pleaded that he could not pay that huge amount, the accused officer reduced his demand to Rs.10,000/- and then the accused officer directed PW.1 to bring the said amount to his house at Warangal on 21.01.1997 in the morning hours and further told that he would pass the bills and make payment on the same day. According to PW.1, as he was not willing to pay the bribe amount, he approached the ACB officials and presented Ex.P4 complaint. 5. PW.7 P. Ashok Kumar, who was working as DSP, ACB, Karimnagar, having received Ex.P4 complaint from PW.1 and having made discrete enquiries, registered a case in Crime No.1/ACB-KMR/97 on 21.01.1997 at 6.00 AM and issued FIR in Ex.P20. Then he summoned the mediators Y. Ramesh Kumar, Assistant Project Officer, office of the Animal Husbandry, and B. Sudershan Rao, Computer Incharge on 21.01.1997 at 6.30 AM and introduced PW.1 to those mediators. They enquired with PW.1 with regard to the contents of Ex.P4. Then PW.1 produced Rs.10,000/- in the denomination of Rs.500/- currency notes. As per the instructions of PW.7 the numbers of the currency notes were noted in the mediators report. Then phenolphthalein powder was applied to those notes by Muneender Reddy, Police Constable and the tainted amount was placed in the left side shirt pocket of PW.1, after ensuring that he does not carry any other amount. Then PW.7 explained and demonstrated the phenolphthalein test to the mediators. PW.1 was directed to go to the house of the accused officer at Subedhari, Warangal along with the accompanying witness PW.2 and to pay the bribe amount to the accused only on his demand. PW.1 was specifically directed not to shake hands with the accused officer before or after demand and acceptance of the bribe. PW.2 was given instructions to watch all the transactions that took place between PW.1 and the accused officer and if the accused officer demanded and accepted the bribe amount from PW.1, to come out of the house of the accused officer and give pre- arranged signal by wiping his face with hand kerchief. The first mediators report was prepared in Ex.P6. Then the entire trap party proceeded to Warangal in a Government jeep and PWs.1 and 2 alighted the jeep near the house of the accused officer and proceeded by walk to the house of the accused officer. The other trap members followed PW.1 and took vantage positions around the house of the accused officer. 6. When PWs.1 and 2 went to the house of the accused officer, the accused officer was sitting in a chair in the front room. When the accused officer questioned about PW.2, PW.1 introduced PW.2 to the accused officer as his junior paternal uncle. Then PW.1 enquired with the accused officer as to what happened to his bills and the accused officer questioned whether PW.1 had brought the demanded amount. Then PW.1 told that he brought the amount and paid the tainted currency notes to the accused officer and the accused officer received the same with his right hand and kept the same in his right side pant pocket. Then the accused officer asked PW.1 about the remaining amount and PW.1 told him that after final bill is passed, he would arrange for payment of the remaining amount. Then the accused officer went inside the house and on seeing this PW.2 went out and gave pre-arranged signal. Within two or three minutes, PW.7 and other trap members rushed into the room of the accused officer. Then PW.7 instructed PW.1 to wait outside the house. Then PW.7 got prepared Sodium Carbonate solution in two separate glass tumblers and requested the accused officer to rinse his both hand fingers separately in the said solutions and when the accused officer did so, the right hand fingers wash yielded positive result and there was a light pink colour to the left hand wash. Then the accused officer was questioned and what all he stated was incorporated in the second mediators report. Then the accused officer produced the currency notes which were kept in a brief case. The brief case was in the bed room and the currency notes which were kept on the saree in the brief case were picked out by the accused officer and handed over to PW.7. On the instructions of PW.7, the mediators verified and found that the note numbers tallied with the note numbers mentioned in the first mediators report. Then the tainted amount MO.1 was seized. Then PW.1 was called and his statement was also incorporated in the mediators report. The right side pant pocket of the accused officer was also subjected to Sodium Carbonate solution test and it yielded positive result. The pant of the accused officer was also seized. PW.2 was also examined and his statement was also recorded. The Saree on which the tainted amount was kept in the brief case was also subjected to Sodium Carbonate solution test and it is yielded positive result. The Saree MO-9 was also seized. The resultant solutions of the accused officer’s both hands, his pant wash and Saree wash were preserved in sealed bottles MOs 4 to 7. The sample of sodium carbonate powder was also preserved in a separate bottle MO-10. The rough sketch of the scene of offence was drawn under Ex.P8. Then the entire trap party proceeded to the office of the accused officer and seized the relevant documents under Ex.P9. Search list was also prepared in Ex.P10. After completing investigation, charge sheet was filed by PW.7. 7. The prosecution, in order to prove its case, has examined PWs.1 to 7 and got marked Exs.P1 to P.22 and MOs 1 to 10. On behalf of the accused, the accused himself was examined as DW.1 and Exs.D1 and D2 were marked. 8. The learned Special Judge, having considered the entire evidence on record, believed the prosecution case and convicted the accused as stated supra. 9. Sri C. Padmanabha Reddy, learned Senior Counsel, representing Sri C. Praveen Kumar, learned counsel for the appellant submitted that the accused has been falsely implicated in this case at the instance of one Someswara Babu, who was previously working as Executive Engineer and who wanted to come again as Executive Engineer in the place of the accused officer. His first submission is that admittedly the first bill was sent to the office of the accused officer on 04.01.1997 and the remaining two bills were sent on 08.01.1997 and the trap was laid on 21.01.1997 and that absolutely there was no delay in processing the files of PW.1 and this itself shows that there was no demand by the accused officer. It is also his submission that the accused officer himself wanted to inspect the works on 18.01.1997 and therefore the bills were not passed and in the meanwhile a false complaint was given against the accused officer. His next submission is that absolutely there is no evidence to show that the accused officer had made any demand either on 09.01.1997 or on 17.01.1997 and finally on 19.01.1997. His further submission is that except the evidence of PW.1 there is no evidence to show that PW.1 met the accused officer on 09.01.1997 or on 19.01.1997 at Karimnagar. His further submission is that according to PW.1, it is only PWs.3 and 4 who can say that he (PW.1) went to Karimnagar on 19.01.1997 and met the accused officer, but PWs.3 and 4 have not supported the case of PW.1 and further they have categorically stated that PW.1 did not come to Karimnagar on 19.01.1997 and did not meet the accused officer. Thus, his main submission is that the evidence of PWs.3 and 4 falsifies the evidence of PW.1. His next submission is that the accused had given proper explanation and that the tainted amount was not seized from the possession of the accused. His further submission is that PW.1 gave shake hand to the accused officer and then tried to thrust the amount into the right side pant pocket of the accused and that the accused did not receive the amount and went inside the house and then PW.1 planted the tainted amount in the brief case. His further submission is that the brief case does not belong to the accused and that PW.7 had not seized the said brief case, and had PW.7 seized the brief case, it would have proved that the brief case does not belong to the accused. It is also submitted that the explanation given by the accused was not incorporated in the second mediators report. It is also argued that PW.2 was not the accompanying witness and that the name of Dr. Y. Ramesh Kumar was struck off and in its place the name of PW.2 V. Sudershan Rao was written in the second mediators report Ex.P7 and this shows that PW.2 was not the accompanying witness. It is also submitted that PWs.1 to 7 are highly interested witnesses and the learned Special Judge ought not to have placed reliance on their evidence. It is also argued that in the absence of proof of demand, even if it is assumed that some amount was recovered, it will not prove the case of the prosecution. It is also argued that the learned Special Judge failed to consider the explanation given by the accused and that the version of accused that money was thrusted into his pant pocket and the same was removed and handed over to PW.1 appears to be probable. 10. Per contra, Sri V. Ravi Kiran Rao, learned Special Public Prosecutor for ACB, submitted that minor contradictions are bound to occur in the evidence of natural and trustworthy witnesses. It is further submitted that there was no enmity between the accused and PW.1 and there was no need for PW.1 to falsely implicate the accused in this case. It is also argued that the evidence of PW.5 also shows that the accused officer orally directed him not to place the files of PW.1 before him until further instructions and this shows the intention of the accused. It is also submitted that PW.1 is the natural witness and PW.2 is an independent witness and that the evidence of PW.1 has been corroborated with the evidence of PW.2 and that no suggestions were given to PWs.1 and 2 that in the absence of the accused officer the amount was kept in the brief case and that the plea of keeping the amount in the brief case was introduced at later stage. It is also argued that the accused did not give any spot explanation and that no suggestion was given to PW.1 that he kept the amount in the brief case and when there was no spot explanation, there was no need to seize the brief case. It is also argued that the wash of the both the hand fingers yielded positive result and even the inner part of right side pant pocket of the accused also yielded positive result and these circumstances coupled with the evidence of PWs.1 and 2 clinchingly establish the prosecution case. It is also argued that if at all the version of the accused officer was not incorporated in the second mediators report nothing prevented the accused officer from giving a complaint to the higher authorities. It is also argued that PW.1 is not related to Someswara Babu, the then Executive Engineer and there was no need for PW.1 to implead the accused in a false case at the instance of Someshwar Babu. 11. The points that arise for consideration are; (1) whether the prosecution has proved the demand and acceptance by the accused officer? and (2) whether the version given by the accused is probable. 12. Admittedly, the accused was working as Executive Engineer in A.P. Housing Board, Warangal Division, Warangal and that PW.1 was working as contractor. Admittedly, three works of total value of Rs.2,36,000/- were awarded to PW.1 and that he had completed the first work in August 1996 and the remaining two works were completed in December 1996. It is also not in dispute that PW.3 who was working as Assistant Engineer had taken measurements on 07.12.1996 with regard to first work and prepared bill on 09.12.1996 and submitted the same to the Deputy Executive Engineer. He recorded the measurements in Ex.P12 on 09.12.1996. It is also not in dispute that PW.4, who was working as Assistant Executive Engineer, took measurements with regard to remaining two works on 28.12.1996 and 02.01.1997 respectively and noted the measurements in the measurement book Ex.P16. Then he prepared the bills and submitted to the Deputy Executive Engineer on 06.01.1997. It is also not in dispute that the Deputy Executive Engineer in turn sent the bills to the office of the accused officer. The evidence of PW.5 shows that the first bill pertaining to Ex.P12 was received on 04.01.1997 and the other two bills were received on 08.01.1997 and that he forwarded the same to the concerned Draftsman. He also says that he received the bills under Ex.P16 on 10.01.1997. He had specifically deposed that he did not forward the three bills under Exs.P12 and P16 to the accused officer on the oral instructions of the accused officer. According to PW.5 on the request of the accused officer he gave Ex.D1 statement and in that statement he did not mention that he kept the above two bills pending as per the instructions of the accused officer. It has to be seen that he gave Ex.D1 statement on the request of the accused officer. Therefore, much importance need not be given to Ex.D1 statement. PW.5 specifically denied the suggestion that the accused officer never instructed him to keep the above two bills pending. According to the accused officer (DW.1), on 08.01.1997 he received two more bills and endorsed the same to PW.5 and that PW.5 did not place those bills before him. Thus, admittedly, the first bill was received on 04.01.1997 and the other two bills were received on 08.01.1997 in the office of the accused officer and that those bills were not passed by the accused officer till the date of trap. 13. As far as demand is concerned, it is true that except the evidence of PW.1 there is no other evidence in this case. According to PW.1, he met the accused officer on 09.01.1997 when the accused officer came to the work site and the accused demanded to pay an amount of Rs.20,000/-. Of course, no documentary evidence was collected to say that the accused officer inspected the work site on 09.01.1997. The accused officer denied the suggestion that he inspected the works executed by PW.1 on 09.01.1997. The further case of PW.1 is that he again met the accused officer 7 days thereafter at Warangal and requested him to pass the bills and again the accused officer reiterated his demand. His further case is that the accused officer informed him that he would be visiting Karimnagar on 18.01.1997 and 19.01.1997 and asked him to meet at Karimnagar. He specifically deposed that on 19.01.1997 at about 8.30 AM he met the accused officer in Room No.219 of Maneru lodge and requested him to reduce the bribe amount and the accused officer reduced the demand amount from Rs.20,000/- to Rs.10,000/- and directed PW.1 to meet him at Warangal on 21.01.1997 in the morning hours and pay him the amount. Admittedly, there was no enmity between PW.1 and the accused. Except the suggestions given to PW.1, there is nothing on record to show that PW.1 was acting at the instance of one Someswara Babu, who was previously working as Executive Engineer in the place of the accused officer. Admittedly, the bills were not passed by the accused officer. PW.1 had categorically mentioned in Ex.P4 about his meeting the accused officer on 19.01.1997 at 7.30 AM in Room No.219 in Maneru Lodge. It is true that in the cross-examination, PW.1 stated that S. Srinivasa Rao (PW.3), K. Sudershan Reddy (PW.4) and one Abdul Hameed were the competent persons to speak about his visit to their office on 09.01.1997 and Karimnagar on 19.01.1997. It is also a fact that PWs.3 and 4 have deposed that the accused officer occupied Room No.219 on 18.01.1997 and vacated the said room on 19.01.1997 at about 8.00 PM. Thus, the accused officer was available in Room No.219 in Maneru Lodge on 19.01.1997 at about 7.30 AM. PWs.3 and 4 deposed that PW.1 did not meet them on 09.01.1997 or on 19.01.1997 and that they were all along with the accused on 18.01.1997 and on 19.01.1997. They say that they did not see PW.1 meeting the accused officer on those days. PWs.3 and 4 were not declared as hostile witnesses and they were not cross- examined. The specific case of PW.1 is that he met the accused officer on 19.01.1997 at about 7.30 AM. It is not the case of PWs.3 and 4 that they were in the room of the accused officer on 19.01.1997 at about 7.30 AM or in the morning hours. Since PWs.3 and 4 did not specifically state that they were present in the room of the accused officer on 19.01.1997 at about 7.30 AM, the version of PW.1 cannot be disbelieved. It is settled law that the solitary testimony of the witness can be relied upon if it is inspiring confidence and trustworthy. As discussed above, PW.1 was not on inimical terms with the accused officer and there is no reason for PW.1 to depose against the accused officer. Admittedly, the bills of PW.1 were pending with the accused officer and the accused officer is the person who has to pass the bills and these circumstances probablise the version of PW.1. Therefore, the evidence of PW.1 cannot be discarded merely on the ground that it is not corroborated by the evidence of PWs.3 and 4. Further, the evidence of PW.5 that the accused officer orally directed him not to place the files before him until further directions, corroborate the evidence of PW.1, which is a clear circumstance against the accused officer. Hence, the only inference that can be drawn from the above circumstances is that the accused officer wanted to compel PW.1 to pay the bribe amount. In the circumstances, it is to be held that the prosecution has proved that the accused officer demanded the amount from PW.1. Thus, the demand is proved. 14. Now coming to the acceptance of bribe amount at the time of trap, we have the evidence of PWs.1 and 2. According to PW.1, when he went to the house of the accused officer, which is in the first floor, the accused officer was alone present in his house sitting in the front room. When the accused officer questioned about PW.2, PW.1 introduced PW.2 to the accused officer as his junior paternal uncle. Then PW.1 enquired with the accused officer as to what happened to his bills and the accused officer questioned whether PW.1 had brought the demanded amount. Then PW.1 told that he brought the amount and paid the tainted currency notes to the accused officer and the accused officer received the same with his right hand and kept the same in his right side pant pocket. Then the accused officer asked PW.1 about the remaining amount and PW.1 told him that after final bill is passed, he would arrange for payment of the remaining amount. Then the accused officer went inside his house. PW.2, who was working as Statistical Computer Operator in the office of the Joint Director, Animal Husbandry, Karimnagar, and who acted as mediator and who appears to be an independent witness and who has no enmity with the accused officer, corroborated the version of PW.1. PW.2 has specifically deposed that when he