THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.170 of 2008 JUDGMENT: 1 Questioning the judgment dated 17.01.2008 passed by the learned Special Judge for ACB Cases-cum-III Additional District Judge, Visakhapatnam in C.C.No.13 of 2002, whereby the appellant herein was found guilty and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- for the offence punishable under section 7 of the Prevention of Corruption Act, in default, to suffer simple imprisonment for a period of one month and was further sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,000/- for the offence punishable under section 13 (1) (d) r/w 13 (2) of the said Act, in default, to suffer simple imprisonment for a period of two months, the appellant preferred this appeal. 2 The facts in nutshell are that the appellant was working as Multi Purpose Health Extension Officer in the District Medical and Health Office, Visakhapatnam and that he was a government servant. P.W.1 Gangula Lakshmana Murthy who is an Ex-Military Service man intended to start poultry farm in his village and for that purpose he required health approval certificate from the District Medical & Health Office. On 23.07.2001 P.W.1 submitted an application for health approval certificate before the Primary Health Officer R. Thallvalasa along with no objection certificate issued by the village Sarpanch, Kapula Uppada village and that the said application was forwarded to the appellant who was Multi Purpose Health Extension Officer. P.W.1 met the appellant on 23.07.2001, but the appellant asked him to come after one week. Thereafter on 02.08.2001 P.W.1 met the appellant and requested him to process and issue Health Approval Certificate. Thereupon the appellant demanded Rs.6,000/- as illegal gratification to issue the said certificate. Again on 27.08.2001 P.W.1 and his wife P.W.2 met the appellant in his office and requested him for issuance of the said certificate, but the appellant reiterated his earlier demand of Rs.6,000/-. As P.Ws.1 & 2 expressed their inability to pay the said amount, the appellant reduced his demand to Rs.3,000/- and asked to pay the said amount on 03.09.2001. However, P.W.1 was not willing to pay the said amount and as such he approached the Deputy Superintendent of Police, ACB, Visakhapatnam on 02.09.2001 and filed written complaint. Then the Deputy Superintendent of Police asked P.W.1 to come on the next day i.e. 03.09.2001 and registered a case in Cr.No.13/RC-ACB/WLR/2001 under section 7, 13(2) r/w 13 (1) (d) and 15 of the Prevention of Corruption Act and issued F.I.R. Thereafter, the Deputy Superintendent of Police collected two mediators from the Agricultural Office and conducted pre-trap proceedings during which the amount to be presented by P.W.1 was tainted with Phenolphthalein Powder through constable and the effect of the Phenolphthalein powder and Sodium Carbonate Solution was also demonstrated in the presence of mediators and the mediators prepared the pre-trap proceedings to that effect. Thereafter the entire trap party proceeded to the office of the appellant. On the same day P.W.1 paid the tainted amount of Rs.3,000/- to the appellant on demand in his office and the ACB officials trapped the appellant with the tainted amount. During the trap proceedings, chemical examination was conducted on the two hand fingers of the appellant. The left hand fingers tested solution result was positive. The tainted amount was recovered from the underneath files on the table of the appellant, and a separate examination was conducted on the contacted place on the table and the folder cover and the result was positive. After completing investigation, and after obtaining permission for prosecution, a charge sheet was filed. 3 In order to bring home the guilt of the appellant, the prosecution examined P.Ws. 1 to 11 and exhibited Exs.P.1 to P.21 and M.Os.1 to 7 on its behalf and on behalf of the appellant D.Ws.1 to 3 were examined and Exs.D.1 to D.4 were marked and Exs.C.1 and C.2 were marked by the court. As stated supra, after analyzing the said evidence, the court below, while accepting the case of the prosecution, found the appellant guilty of the said offences and accordingly convicted him. 4 The learned counsel for the appellant submitted that on 13.08.2001 and 27.09.2001 the appellant was not present in his office and that he attended health education classes at Anandapuram, Madhuravada and Gurrampalem villages for the purpose of conducting Health Education Classes and as such question of demand and reduction of bribe does not arise at all. His further contention is that simply because the Phenolphthalein Powder test yields positive, on that score alone it cannot be presumed and concluded that the appellant demanded the bribe amount because when the appellant refused to take that amount P.W.1 tried to forcibly put the said amount in the pocket of the appellant and in that context the left hand fingers of the appellant came into contact with those currency notes and thereby the Phenolphthalein Powder test yielded positive. It is his further contention that it is not the appellant but P.W.4 who has to issue the relevant Health certificate and hence no official favour, which the appellant could have done to P.W.1 and the learned trial Judge had ignored all these material aspects in convicting the appellant. In support of his contentions the learned counsel for the appellant relied on the decisions reported in 1) Murali Konda Vs. State of A.P.[1], 2) M. Pydi Raju vs. State of A.P.[2], 3) Ganga Kumar Srivastava Vs. State of Bihar[3] and prayed to set aside the conviction and sentence imposed on the appellant by the trial court. 5 Per contra, the learned Special Public Prosecutor contended that during the course of examination under section 239 Cr.P.C. the appellant did not state the theory of alibi and that P.W.1 has no enmity with the appellant to foist a false case against him. 6 In the light of the above said submissions, this court looked into the record. The first contention of the appellant is that on the alleged dates of demand of bribe, he was not in his office and he was at Anandapuram, Madhuravada and Gurrampalem villages for the purpose of conducting Health Education Classes. The said contention was denied by the prosecution by producing Ex.P.15 Attendance Register, which was maintained in the District Medical & Health office and every employee working in the said office has to sign in the Attendance Register. If the said Attendance Register is accepted, it shall be concluded that the appellant was present in his office on those particular dates. But to rebut the same, the explanation of the appellant right from the beginning is that he used to sign in the attendance register before leaving the head quarters since his departure was at about 7.00 AM in the morning and that the attendance register was very much available with the watchman in the ground floor of the office. In support of the same, he examined D.Ws.1 to 3, who categorically stated that the appellant was at those places for the purpose of conducting health education classes. In my considered view, the said explanation cannot be brushed aside because in Exs.D.1 and D.4 are the certificates issued by the District Medical & Health Officer, Visakhapatnam it is clearly shown therein that the appellant was on tour on those two days i.e. 13.08.2001 and 27.08.2001. Ex.D.3 attested Xerox copy of T.A. Bill also shows that the appellant was on tour both on those two days and Exs.C.1 and C.2 marked by court also show the same. The said documentary evidence was categorically supported by the evidence of D.Ws.1 and 2. In fact, P.W.4 also stated that the appellant was on tour on those two days. Hence, this court is of the opinion that the trial court failed to take this material point into consideration and if this aspect is taken into consideration it cannot be said that there is demand of bribe by the appellant on the said dates. The explanation put forth by the appellant that he used to sign in the attendance register which will be available with the watchman in the ground floor of the office before he leaves the head quarters also gains significance in the given circumstances. In support of the said contentions, the appellant relied on Ganga Kumar Srivastava (3 supra). The ratio in the said case is that when the defence of the appellant in a bribe case was that he was not present in his office on the date of bribe, which was alleged to have been paid, and when the appellant had examined one of the officers of the department, who categorically stated in his deposition that the appellant had taken casual leave on that date and in fact had gone out of station for seeing his ailing sister, if casual leave register was not produced, when the application made for casual leave on that particular date admittedly was produced by the appellant merely because casual leave register was not produced nor the officer granting leave was examined, cannot be held that the appellant failed to discharge the onus of proving his absence. In those circumstances, this court is of the opinion that in view of the plea taken by the appellant in the case on hand that as he was not present in the office and was away from head quarters on health education classes at Anandapuram and some other villages, question of appellant demanding bribe from P.W.1 in his office does not arise. From the evidence available on record and the material placed by the accused officer, it is clear that the appellant was out of Visakhapatnam and he visited the said places. 7 In Murali Konda case (1 supra) relied on by the appellant, the case of the accused officer in that case was that he was 80 KM away from Adilabad from 11.00 AM onwards and he was attending a conference i.e. the time when the demand of bribe was alleged and hence the demand of bribe is to be viewed with suspicion and the plea of alibi was accepted. Here in this case also the appellant pleads that he was on Health Education Classes and was away from the head quarters. His contention was supported by Exs.D.1 to D.4 and the evidence of D.Ws.1 to 3 and also by P.W.4, which squarely suits the provisions of Section 11 of the Evidence Act. Hence, it cannot be believed that the petitioner demanded the said illegal gratification. 8 Coming to the next aspect of trap, the case of the prosecution is that during the trap proceedings, chemical examination was conducted on the two left hand fingers of the appellant and that his left hand fingers tested solution result was positive. The defence of the appellant is that when the appellant refused to take that amount, P.W.1 tried to forcibly thrust the said amount into the pocket of the appellant and in that context the left hand fingers of the appellant came into contact with those currency notes and thereby the Phenolphthalein Powder test yielded positive. When the prosecution failed to prove the alleged demand of bribe with cogent and clinching evidence, the trap proceedings appear doubtful because P.Ws.3 and 5 who are the mediator and the Deputy Superintendent of Police have categorically stated even in their chief examination that the appellant stated during the trap proceedings that P.W.1 put the amount underneath the file on the table inspite of his refusal. In support of the said contention the appellant relied on M. Pydi Raju case (2 supra) wherein the apex court held at para No.15 as follows: “……….. At the earliest point of time A.O.1 stated that he refused to receive the amount offered by P.W.7 and when P.W.7 wanted to give the amount of Rs.200/- he pushed with his both hands. Therefore, obviously, as he happened to touch the money when P.W.7 forcibly wanted to give him and refused to receive the same. The Phenolphthalein test was found positive. It is not the case of the prosecution that A.O.2 has not taken any money. P.W.7 knows A.O.2 prior to the incident and he is acquainted with A.O.2 in person. It is difficult to believe that P.W.7 was not able to see A.O.2 entering into the room of A.O.1 immediately after the trap. Even the attender P.W.3 also has not stated any thing about A.O.2 entering into the room of A.O.1. The prosecution have further developed the case after the trap has failed stating that P.W.7 gave that tainted money to A.O.1 and A.O.1 in turn gave the money to A.O.2. Admittedly, the prosecution has not tested the drawer of the table of A.O.1. P.W.7 stated that the money was kept in the drawer of A.O.1. At least they could have tested the drawer of A.O.1 to prove their case. They have not subjected the drawer of the table of A.O.1 to Phenolphthalein test where money is said to have been kept. There is no proof that A.O.2 has not washed his hands from 11.40 AM to 3.30 or 4.00 PM and that he has not taken his lunch to believe the version of the prosecution. What is important in a criminal case is ‘link’ which is missing in this case. Therefore, it is very difficult to believe the version of the prosecution that P.W.7 offered the money to A.O.1 and that A.O.1 demanded and received the said money. Therefore, I am of the opinion that the prosecution has not proved its case beyond all reasonable doubt.” 9 Further, P.W.4 stated that the duty of the appellant is only to verify and put up a note but he cannot issue the certificate as required by P.W.1 and it is only he i.e. P.W.4 who has to issue the relevant Health certificate and hence no official favour, which the appellant could have done to P.W.1. So when there is no authority vested with him, the allegation that the appellant demanded bribe for issuance of the said certificate appears doubtful. 10 For the foregoing reasons, I am of the view that the trial court erred in convicting the appellant and hence the conviction and sentence imposed on the appellant by the trial court are hereby set aside and the appeal is accordingly allowed. ------------------ SRI T.G.K.J, 25.02.2011 Kvsn [1] 2002 ALD (Cri)-2-249 [2] 2004-BLJR-1-816 [3] 2005 CRI. L.J. 3454