THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 610 of 2002 Date: 23.02.2010 Between: State: ACB, rep. by the Inspector of Police, Anti-Corruption Bureau, Hyderabad Range, Hyderabad. .. Appellant/Complainant And Gundappa, Revenue Inspector, O/o Municipality, Mahaboobnagar. .. Respondent/Accused officer THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 610 of 2002 Judgment: This appeal is directed by the State against the judgment dated 13.12.2001 passed in C.C. No. 18 of 1997 by the Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, acquitting the accused officer from 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’). The brief facts of the case are as follows. The accused officer was working as Revenue Inspector in Municipal Office, Mahaboobnagar. PW.1 Mohammed Iqbal claims to be the son-in- law of one Mohd. Abdul Khader. The said Mohd. Abdul Khader was examined as PW.4. According to PW.4, he constructed a house in Panchayatraj Colony of Mahaboobnagar Town and PW.1 used to look after the works in the Municipality on his behalf. PW.4 completed the construction of the house in 1996 and the accused officer took the measurements of the house of PW.4 and instructed him to come to his office for finalizing the tax. PW.4 informed the same to PW.1 and requested him to meet the accused officer. On 18.01.1997, PW.1 went to the Municipal Office and met the accused officer. The accused officer informed him that as per the rules the annual tax had to be assessed at Rs.2500/- and when PW.1 requested to reduce the tax, the accused demanded Rs.1500/- as bribe for reducing the tax amount. On 22.01.1997, PW.1 again went to the Municipal Office and enquired with the accused. Then the accused informed him that unless the bribe amount is paid, he would not assess the building for tax. On 24.01.1997, PW.1 met the DSP, ACB, Hyderabad, and lodged a written complaint in Ex.P1. One M.A. Ateek is the scribe of Ex.P1 to the dictation of PW.1. The DSP, ACB, Hyderabad, directed PW.1 to meet him on 25.01.1997 at Jedcherla R & B Guest House. After verifying the contents of the complaint, PW.6 K. Narasinga Rao, who was working as DSP, ACB, Hyderabad Range, registered the same in Crime No.1/ACB/Hr/97, under Sections 7 and 11 of the Act, and issued FIR in Ex.P14. Then, he secured the presence of mediators G. Karunakar (PW.3) and Mohd. Vassouddin and proceeded to Jedcherla Guest House. PW.1 came there along with Mohsin Khan (PW.2). PW.6 introduced PW.1 to the mediators and then PW.1 produced the proposed bribe amount of Rs.1500/-, and tax amount of Rs.1000/- in hundred rupee denominations. Rs.1,000/- notes were retained by PW.1 in his pant pocket, intended to be paid as municipal tax, and another bundle of Rs.1500/- was given to the mediators, who noted down the numbers and after applying phenolphthalein powder to the said notes, the notes were placed in the front shirt pocket of PW.1. PW.1 was instructed to pay the amount on the demand of the accused. PW.2 was directed to accompany PW.1. PW.2 was also directed to give pre-arranged signal by wiping his face with a kerchief. Then Ex.P6 first mediators report was prepared and it was signed by the mediators and PW.6. Then PWs.1 and 2 left the guest-house on their scooter and proceeded to the municipal office. PW.6 and other trap party followed them. PWs.1 and 2 proceeded to the seat of the accused. PW.1 wished the accused and enquired him about the assessment of his father-in-law’s building. Then the accused asked whether he brought the bribe amount. PW.1 answered him in affirmative. Then PW.1 took out the currency notes and handed over the same to the accused. The accused counted the amount with his hands and kept the same in his shirt pocket. Then the accused called the Bill Collector Mohd. Zameeruddin (PW.5) and directed him to prepare a demand notice and tax receipt at the rate of Rs.850/- per year. The accused asked PW.1 to pay Rs.433/- towards half yearly tax and PW.1 paid Rs.500/- out of Rs.1000/- kept by him and the accused gave remaining change. Ex.P2 is the demand notice and Ex.P3 is the half yearly tax receipt. Then, according to PW.1, he went outside and gave pre-arranged signal. According to PW.6, at about 4.15 PM, they received pre-arranged signal from PW.2. Then all of them rushed to the municipal office and he secured two glass tumblers of water, prepared sodium carbonation solution and both hand fingers of the accused were rinsed in the sodium carbonation solution and both hand fingers yielded positive results. Mos. 4 and 5 are the sealed bottles of the solutions preserved after the test. Then the accused officer produced the tainted amount from his shirt pocket. The accused also placed one bundle of Rs.1500/- and another bundle containing Rs.2500/- and as he claimed the sum of Rs.2500/- as his personal amount, it was returned to him. Then the mediators compared the numbers of the notes with the numbers noted in the first mediators report Ex.P6. The amount MO.1 was seized. The shirt pocket of the accused was also tested in the glass of sodium carbonate solution and the solution turned to pink colour. The said solution was preserved in a sealed bottle which is MO.6. The shirt of the accused MO.7 was also seized. Then the second mediators report was prepared under Ex.P12. Ex.P3 receipt was also seized from PW.1. The relevant records were also seized. Ex.P15 is the measurement slip and Ex.P13 is the rough sketch prepared at the scene of offence. PW.2 is the witness, who accompanied PW.1. PW.3 is one of the mediators who accompanied PW.6 and who was present at the time of preparation of first mediators report and second mediators report. PW.5 is working as Bill Collector in Mahaboobnagar Municipality. According to him, he along with the accused officer went to the house of PW.4 and took measurements for assessing it for house tax. Ex.P10 is the assessment register. At page 84 of Ex.P10 register, the measurements of the house of PW.4 were recorded, which bears the signatures of PW.5 and the accused. Ex.P7 is the property tax receipt book. Ex.P3 is the original receipt issued to PW.1 after receiving the amount of Rs.433/- towards half yearly tax from him for the house of PW.4. Ex.P8 is the special notice book which was in the custody of the accused officer. On the date of trap, according to PW.5, the accused officer called him and directed him to serve Ex.P2 notice on the party and obtain his signature. Accordingly, he served the notice on PW.1 and obtained his signature. PW.7 is the Section Officer, Municipal Administration, Hyderabad, and he speaks about the sanction orders issued by the then Principal Secretary to Government, Municipal Administration and Urban Development, vide G.O.Ms.No.296 (Municipal Administration), dated 06.11.1997. PW.8 is the Inspector of Police who took up the investigation in this case and recorded the statements of PWs.1 and 2, and after obtaining sanction orders and completing investigation, he filed charge sheet in this case. On behalf of the accused, DWs.1 and 2 were examined. According to DW.1, on 06.02.1996 a quarrel ensued between the accused and one Nasir, the Municipal Councillor. According to him, the said Nasir quarreled with the accused with regard to imposition of tax against his friend’s house and beat the accused. He further deposed that the accused gave a complaint to the police and the entire staff of the Municipality organized Dharna against the said incident. DW.2 is the Junior Assistant working in the Mahaboobnagar Municipality. According to him, he was in his seat on 25.01.1997 and at that time two persons came to the seat of the accused and they talked with the accused. The learned Special Judge, having considered the entire material and evidence on record, has taken into consideration that one Nasir, Municipal Councillor, beat the accused on 06.02.1996 and that a police complaint was given against the said Nasir in Ex.D1, basing on which a case was registered against the said Nasir and that one M.A. Ateek, who is the scribe of Ex.P1, is also a Municipal Councillor and that M.A. Ateek is related to PW.2 and that PWs.1 and 2 used to come to the Municipal Office now and then and those circumstances reveal that a false case has been foisted against the accused at the instance of the Municipal Councilors M.A. Ateek and Nasir. The learned Special Judge had also taken into consideration the circumstances that the Municipal Commissioner had fixed the tax on 22.01.1997, and that on 22.01.1997 itself PW.5 informed to PW.4 that the house tax was fixed at Rs.850/-, and in such circumstances, the evidence of PW.1 that on 22.01.1997 he went to the Municipal Office and requested the accused to reduce the tax is unbelievable. The learned Special Judge had also taken into consideration the evidence of PW.1, wherein he admitted that he verified the tainted amount kept in his pocket and therefore the possibility of PW.1 getting phenolphthalein powder to his hands cannot be disputed, and according to the accused, PW.1 shook his hands and then forcibly put the amount in his shirt pocket and then immediately gave signal to the CBI officials. The learned Special Judge had also taken into consideration the fact that there is discrepancy with regard to the person who gave signal to the CBI officials. Having considered all those circumstances and the evidence on record and the possibility of false implication of the accused in this case, the accused was acquitted. Learned Special Public Prosecutor for ACB submits that PW.2 is an independent witness and he has supported the case of the prosecution, and that admittedly the amount was found in the shirt pocket of the accused and that when the hand fingers of the accused were rinsed in the solution, the solution turned to pink colour and that it is the accused who was dealing with the fixation of annual tax and these circumstances reveal that the prosecution has proved its case. It is further argued that PW.1 and the accused are not on inimical terms. It is further argued that merely because PW.1 verified whether the currency notes were in his pocket or not, that does not mean that PW.1 had touched those currency notes tainted with phenolphthalein powder with his hands. Learned counsel for the respondent/accused officer argued that admittedly there was bitter enmity between the accused and one Nasir, the Municipal Councillor, and that the said Nasir was the friend of one M.A. Ateek, who is also a Municipal Councillor and was related to one Mohsin Khan (PW.2). It is further argued that when the tax was already fixed by the Municipal Commissioner on 22.01.1997, the question of the accused demanding the amount for reducing the tax does not arise and that in view of the previous enmity the false implication of the accused in this case cannot be ruled out. The only point that arises for consideration is whether the findings of the learned Special Judge can be interfered with? The law is well settled with regard to appeals against an order of acquittal. The appellate Court should not normally interfere with the reasoned judgment passed by the trial Court, and unless the trial Court commits a gross error in the appreciation of evidence and had taken into consideration wholly in consequential circumstances and acted with material irregularity, the High Court is not justified in setting aside an order of acquittal. Therefore, the appeals from acquittals are allowed only in exceptional circumstances. It is an extraordinary remedy. The Court should come to a conclusion that by acquitting the accused, it resulted in miscarriage of justice. The appellate Court should come to a conclusion that appreciation of evidence by the trial Court is vitiated by failure to take note of a very important fact. In view of the same, there should be strong reasons and compelling circumstances to set aside the acquittal. In the light of the above, we have to examine the case on record. Admittedly, the accused was working as Revenue Inspector in the Municipal Office, Mahaboobnagar. PW.4 is the owner of the house and after he has completed the construction, the accused took measurements of the said house and only tax was to be assessed. Ex.P10 is the house tax assessment register of Mahaboobnagar Municipality for the year 1996-97. The measurements of the house of PW.4 were noted at page No.84 in Ex.P10 register. PW.5 admitted that the Commissioner of the Municipality fixed the annual tax of the house of PW.4 on 22.01.1997. Ex.P2 is the special demand notice No.2278, dated 22.01.1997 fixing the annual tax at Rs.865/- by the Municipal Commissioner. After it was signed by the Municipal Commissioner, the accused signed in Ex.P2 on 22.01.1997. It was served on PW.4 on 22.01.1997 itself by PW.5. PW.5 was also informed that the annual tax was fixed at Rs.865/- for the house of PW.4. So, in the light of the above evidence, the contention of PW.1 that on 22.01.1997 again he went to the Municipal Office and met the accused and that the accused informed him that unless the bribe amount is paid, he would not assess the building to tax appears to be improbable and unbelievable. Further, in the circumstances, the evidence of DW.1 assumes importance. According to DW.1, on 06.02.1996 a quarrel ensued between the accused and one Nasir, the Municipal Councillor, with regard to fixation of tax in respect of the house of the said Nasir’s friend. It is not disputed that the accused gave a police complaint against the said Nasir on 06.02.1996. It is also the evidence of DW.1 that on 07.02.1996 the said Nasir caught hold the shirt of the accused in the Municipal Office and threatened him that he would not allow him to work in Mahaboobnagar Municipality. Admittedly, PW.1 is the friend of one M.A. Ateek, who is the scribe of Ex.P1. The said M.A. Ateek is also a Municipal Councillor and friend of Nasir, who was on inimical terms with the accused. So, in the above circumstances, the false implication of the accused in this case cannot be ruled out. As discussed above, no official favour was pending by 25.01.1997, and fixing of tax by the Municipal Commissioner was already over by 22.01.1997 itself. What was remained was collection of tax only. Admittedly, there is no whisper about the fixation of municipal tax in Ex.P1 by PW.1. PW.1 did not inform the ACB officials about the fixation of municipal tax by the Commissioner by 22.01.1997 itself. Admittedly, M.A. Ateek is related to one Mohsin Khan (PW.2), who is an accompanying witness. There is also discrepancy as to who has given the pre- arranged signal. According to original prosecution version, it is PW.2, who gave the pre-arranged signal. But, PW.1 claims that he has given pre-arranged signal, whereas PW.6, the DSP, ACB, Hyderabad, says that PW.2 gave pre-arranged signal. Thus, there is discrepancy on the material facts. In the above circumstances, if we closely examine the trap, it is clear that the possibility of defence version cannot be ruled out. Admittedly, the accused was sitting in a room along with 5 or 6 Bill Collectors. He was in the middle of those persons. Normally, when the person is in group of employees, he may not accept the bribe amount and he would come out of the office and receive the bribe amount. The payment of tax by PW.1 and issuing of receipt and serving of Ex.P2 are not in dispute. Admittedly, PW.1 had verified the currency notes tainted with phenolphthalein powder. How PW.1 verified the currency notes i.e., whether he had put his hands into his pocket and touched the notes or not, is not clear. If he had verified the notes by touching the notes, then his fingers also would get phenolphthalein powder and when he had shook hands with the accused, the possibility of accused fingers also getting phenolphthalein powder cannot be ruled out. So, in the circumstances stated by the accused, the possibility of PW.1 thrusting the notes into the pocket of the accused and then giving signal by himself cannot be ruled out. The learned Special Judge has considered all those aspects in a right perspective and there is also proper appreciation of the evidence on record. The impugned judgment is a well reasoned one and no interference is called for therewith. In the circumstances, I am of the considered view that there are no merits in the Criminal Appeal and the same is liable to be dismissed. Accordingly, the Criminal Appeal is dismissed. ___________________ B. CHANDRA KUMAR, J Date: 23.02.2010 Nsr