IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR CRL.A.NO.1371 OF 2002. Date:12.03.2010 Between:- Vattepu Saidulu ..Appellant/Accused And State-A.C.B. .. Respondent/Respondent JUDGMENT:- The appellant herein is the sole accused in C.C.No.14 of 1998 on the file of Principal Special Judge for S.P.E and A.C.B cases, City Civil Court, Hyderabad (herein after, referred as “Special Judge”). By Judgment dated 21-11-2002, the learned Special Judge found the appellant guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (herein after, referred as “the Act”) and sentenced the appellant to undergo Rigorous Imprisonment for a period of one year and fine of Rs.1,000/-, in default to undergo Rigorous Imprisonment for a period of three months under each count. The substantial sentences were ordered to run concurrently. 2. The brief facts of the case are as follows: The appellant worked as Prohibition and Excise Sub Inspector of Balakonda Range of Nizamabad District from 19-06- 1995 to 08-02-1997. The substantive charge framed against the appellant is that he accepted a sum of Rs.10,000/- from one Kuldeep Sahani (P.W.1), Accountant in Toddy Tappers Co- operative Society of Balakonda on 07-02-1997 at about 2-55 p.m. at the first floor of his office at Armoor as gratification other than legal remuneration as a motive or reward for showing official favour of not conducting any raids on the shops of Tappers Co- operative Society, Balakonda in exercise of his official functions. As the appellant denied the charge, the prosecution got examined P.Ws.1 to 8 and got marked Exs.P-1 to P-9 and M.Os.1 to 8. The accused did not examine any witness on his behalf but got marked Exs.D-1 to D-11 in support of his case. The specific case of the appellant is that P.Ws.1 and 3 bore grudge against him for raiding their premises on 26-01-1997 and that on the date of trap, he removed his shirt and kept it on a chair and then, went to toilet for attending calls of nature and in the meanwhile, P.W.1 planted the tainted amount in his shirt pocket and that when he came out of the toilet, P.W.1 caught hold of his hands and then, informed the A.C.B. officials. 3. As seen from the evidence let in, the brief facts of the case are as follows: P.W.1 is resident of Nizamabad. He worked as an Accountant-cum-Cashier in Toddy Co-operative Society, Balakonda Range of Nizamabad District. He was paid Rs.2,000/- per month towards remuneration. He used to look after the works of the society such as correspondings, rentals, tree taxes, licenses and other accounts of the societies on behalf of the society. There were five sale points. The appellant was working as Prohibition and Excise Sub Inspector. His office was at Armoor. During the excise year of 1996, the appellant used to come to the depot of P.W.1 and harass them. He was demanding huge amounts as mamools. He was threatening that incase if mamools are not fixed and paid to him, he would book false cases against the society. P.W.3-N.Rajeswar Goud was the President of the Society. According to P.W.1., though they approached the higher officials and informed about the harassment of the appellant orally, there was no change in the attitude of the appellant. On 26.01.1997, the accused Officer (A.O.) came to the depot of the society and booked a case for the offence under Sections 34, 34(a) and 37(a) of the Excise Act, 1968. According to P.W.1, though they were having valid license, the A.O. booked false cases against them. On 01-02-1997, the appellant came to the society and demanded to pay a sum of Rs.10,000/- towards monthly mamools. He has also threatened to book false cases against them. Then, P.W.3 and other members of the society informed P.W.1 about the demand of A.O. On the same day, P.W.1 went to the office of AO and enquired with him. Then, the appellant informed P.W.1 that they have to pay Rs.10,000/- every month as bribe and directed P.W.1 to pay Rs.10,000/- on or before 07.02.1997. P.W.1 informed P.W.3 and others about the demand of AO. Then, they discussed the matter and came to the conclusion that they cannot pay that huge amount to the appellant and directed P.W.1 to approach the A.C.B officials. Accordingly, on 06-02-1997, P.W.1 approached Deputy Superintendent of Police, A.C.B., Nizamabad and presented a written complaint as in Ex.P-1. P.W.7-Gokul Singh was working as a Deputy Superintendent of Police, ACB, Nizamabad Range. Having received Ex.P-1 complaint from P.W.1., he got the allegations verified and on 07.02.1997, he registered a case vide Crime No.1/ACB/Nizamabad/97 and issued F.I.R. Ex.P-8 is the F.I.R. Then, he had requisitioned mediators – Ramakishan and one K.Sattaiah. R.Ram Kishan was working as Junior Assistant in Giriraj College, Nizamabad. The other mediator – K.Sattaiah was working as Senior Lecturer in the said college. As per the directions of the Principal of the College, they appeared before P.W.7-D.S.P., A.C.B, Nizamabad. Then, P.W.7 introduced P.W.1 to the mediators and vice versa. Then, as per his direction, the mediators enquired with P.W.1 about the contents of Ex.P-1. Then, P.W.1 produced a bundle of Rs.10,000/- currency consisting of ten notes of Rs.500/- denomination and fifty notes of Rs.100/- denomination. The mediators noted down the numbers of the currency notes. One Rajender Prasad, H.C., A.C.B applied phenolphthalein powder to those currency notes. Ramkishan was asked to count the notes. P.W.7 got prepared a sodium carbonate solution and Ramkishan was asked to rinse his fingers in the colourless solution. Then, the solution turned into pink. The mediators were explained the significance of the test. Then, the bundle of the currency notes was kept in the right side Nehru shirt pocket of P.W.1 after ascertaining that no other thing was in the said pocket. P.W.1 was directed to deliver the notes to the appellant only on his demand. P.W.2 was directed to accompany P.W.1 and to observe the transaction between P.W.1 and the appellant and then, to give pre- arranged signal by wipening out his spectacles with his kerchief after the appellant accepted the bribe amount. The samples of phenolphthalein powder and sodium carbonate powder were collected and preserved as M.Os.2 and 3. The first mediator’s report was prepared as Ex.P-3. After completing the first mediator’s report, P.Ws.1 and 2 proceeded to Nizamabad in the Maruthi van of P.W.1. Then, P.W.7 and other members of the trap party followed them in a government jeep. After reaching the office of A.O., at about 1.15 or 1.30 p.m., P.Ws.1 and 2 went inside the office of A.O. while P.W.7 and other trap party members had taken vantage positions outside the office of the appellant. Appellant was not available in the office. P.W.2 informed the same to P.W.7. P.W.7 directed them to wait for some more time. P.Ws.1 and 2 were waiting outside the office of the appellant. At about 2.45 p.m, the appellant came to his office on his scooter. Seeing him, P.W.1 wished him at the entrance. Then, the appellant asked P.W.1 to follow him to the office room. The office room of the appellant was in the first floor. Then, P.W.1 and P.W.2 followed the appellant. The appellant enquired P.W.1 about P.W.2. P.W.1 introduced P.W.2 as his friend. Then, the appellant asked whether they would like to have any cool drinks and then, P.Ws.1 and 2 answered in negative. Then, the appellant enquired P.W.1 whether he had brought the amount. Then, P.W.1 took out the amount from his shirt pocket and handed over the same to the appellant. The appellant received it with his right hand and kept it in his left side shirt pocket. After two or three minutes, P.W.2 left the office saying that he would be waiting outside the office. Soon after coming out, P.W.2 gave pre-arranged signal to P.W.7 and other trap party. Having received the signal from P.W.2, P.W.7 and other trap party members rushed into the office of the appellant. P.W.7 found P.W.1 standing near the office at the door of the A.O. Then, P.W.7 introduced himself and mediators to the appellant and questioned him whether he had taken bribe of Rs.10,000/- from P.W.1. The appellant kept silent. He was shivering. Then, P.W.7 got prepared sodium carbonate solution in two tumblers and asked the appellant to rinse his both hand fingers separately and when the appellant rinsed his both hand fingers separately, the right hand finger wash turned into pink colour and there was no change in the left hand wash. On questioning, A.O. produced the bribe amount from his left side shirt pocket. The mediators verified the currency note numbers and tallied with the numbers noted in the first mediators report. The amount was seized under M.O.1. Then, the shirt pocket of A.O. was subjected to sodium carbonate test, which yielded positive result. The resulted solutions were preserved and sealed separately. The shirt of the appellant was seized under M.O.2. The samples of sodium carbonate power were preserved under M.O.8. P.Ws.1 and 2 were called and they were examined separately and all the events were incorporated in the second mediators report as in Ex.P-4. Rough sketch of the scene of offence-Ex.P-5 was also drawn. A search list was also drafted in Ex.P-6. 4. P.W.8-T.Nancharaiah, who worked as D.S.P., A.C.B., Nizamabad Range had took up investigation. After receiving sanction order and chemical analysis report, he filed the charge sheet. 5. P.W.3-N.Rajeswar Goud is resident of Balakonda and was President of Geetha Karmika Co-operative Society of Balakonda during 1995-1997. According to P.W.3, P.W.1 worked as Muneem in their society and that when the accused demanded a sum of Rs.10,000/- towards monthly mamools and threatened to book cases against them, he, after consulting other society members, directed P.W.1 to approach the A.C.B. officials. 6. P.W.4-K.Venkateswarulu worked as Prohibition and Excise Sub Inspector, Nizamabad during the relevant period and that he had seen the appellant, P.W.1 and another person accompanying the appellant to the first floor of the office room of the appellant. 7. P.W.5-R.Bhumeswar Goud, who worked as Excise Constable during the relevant period in the office of appellant had also seen P.W.1 and another stranger following the appellant to the office room of the appellant in the first floor. P.Ws.4 and 5 have also deposed that within few minutes, A.C.B. officials went to the first floor of the building. 8. P.W.6-T.Nageswar Rao worked as Section Officer, Revenue Department and he deposed that the Principal Secretary, Revenue Excise-I Department-Sri K.Ram Babu issued sanction order vide G.O.Ms.No.91 dated 20.02.1998 to prosecute the appellant and that Ex.P-7 sanction order bears the signature of K.Ram Babu. 9. P.W.7 is the D.S.P., who registered the case and organized the trap. 10. P.W.8 is the investigating officer, who filed charge sheet in this case. 11. The learned Special Judge accepted the prosecution case and convicted the appellant as stated supra. 12. The learned Senior Counsel-Sri C.Padmanabha Reddy representing Sri C.Praveen Kumar, Advocate submitted that P.W.1 is an Ex-convict in a murder case and that his brother is also involved in a murder case and that P.W.1 had motive to implicate the appellant as the appellant raided the society just few days prior to the date of trap. It is further argued that on 23.01.1997, the depot of the society was raided by the task force security of the Excise Department and on 26-01-1997, the appellant raided the depot of the society and registered a case in Crime No.162 of 1996-1997 and destroyed 3,600 litres of adulterated toddy and therefore, P.Ws.1 and 3 developed grudge against the appellant and falsely implicated the appellant as accused in this case. It is further argued that when the appellant had raided the depot of the society on 26.01.1997, it is improbable to say that he would have demanded the mamools on 01-02-1997. It is further argued that there was no official favour to be done by the appellant. It is also argued that if at all the appellant wanted to take mamools, he would not have raided the depot of the society on 26-01-1997. The next submission of the learned senior counsel is that P.W.1 was not an employee of the toddy tappers society and that there was no nowkarnama and that without nowkarnama issued by the Excise Department, no person can act as an employee of the society. According to P.W.1, he was present when the appellant visited the depot on 01-02-1997 and demanded to fix mamools but according to P.W.3., P.W.1 was not present at that time and thus, there is material contradiction which falsifies the contention of the prosecution that the appellant demanded to fix mamools on 01- 02-1997. It is further argued that P.W.3 admitted that he was selling two types of toddy. One type of toddy at Rs.1.50 ps per litre and the other type of toddy at Rs.3/- per litre and further admitted that the toddy sold at Rs.1.50 ps per litre was mixed with water and thus, the society was indulging in illegal sale of adulterated toddy. He further argued that since the appellant was not permitting the society members to sell adulterated toddy, disputes arose between them. It is further argued that at the time of trap, the appellant had removed his shirt and kept it on a chair and went to toilet to attend calls of nature and in the meanwhile, P.W.1 entered into the office room of appellant and kept the proposed bribe amount in the shirt pocket of the appellant and when the appellant came out of the bathroom, P.W.1 shook hands with the appellant and thus, falsely implicated the appellant in this case. It is further argued that even if there is no spot explanation, the statement of the accused recorded when he was examined under Section 313 Cr.P.C., can be taken as the explanation of the accused. Reliance is placed in the case PUNJABRAO VS. STATE OF MAHARASHTRA[1]. It is also argued that when the depot was raided on 23.01.1997, the society was not having license and that Ex.D-1 proves the same. It is also argued that the rough sketch-Ex.P-5 proves that P.W.2 did not enter into the office room of the appellant and that he was standing at the door and thus, the rough sketch falsifies the evidence of P.Ws.1 and 2. 13. Sri Ravi Kiran Rao, Special Public Prosecutor for A.C.B. submits that even if it is held that P.W.1 had no nowkarnama, it is for the excise officials to take action against P.W.3 for engaging the services of P.W.1 without issuing valid nowkarnama. His main submission is that merely because P.W.1 had no nowkarnama, it cannot be said that he did not work with the society or that he did not lodge a complaint in Ex.P-1. It is further argued that the appellant had been harassing P.Ws.1 and 3 and was demanding to fix huge mamoolu of Rs.10,000/- per month and that P.W.3 and other members of the society were unable to meet his demand and in those circumstances, they had asked P.W.1 to approach the A.C.B. officials. It is further argued that merely because P.W.1 is an ex-convict, his evidence cannot be discarded on that ground. His specific case is that the evidence of P.Ws.1 and 3 clinchingly establishes that the accused demanded and accepted the bribe for not raiding the depot of the society and for not booking cases against the society. It is further argued that P.W.2 is an independent witness and he had supported the prosecution case and that the evidence of P.W.2 clinchingly establishes that the accused demanded and accepted the bribe amount. It is further argued that only to overcome the evidence that the sodium carbonate solution turned to pink colour when the appellant had rinsed his fingers, he came up with a story that P.W.1 had kept the amount in the shirt pocket when he went to toilet to attend the calls of nature and shook hands with him. It is further argued that the version of the appellant is improbable and he did not give any spot explanation and that there is nothing to disbelieve the prosecution case. It is also argued that the learned Special Judge has discussed the evidence in proper perspective and the findings of the learned Special Judge are based on sound reasoning. 14. The only point that arise for consideration is: whether the prosecution has proved its case and whether the version of the appellant is probable in the circumstances of the case? 15. POINT:- It is not in dispute that the appellant was working as Prohibition and Excise sub Inspector, Balakonda Range of Nizamabad District during the relevant period. It is also not in dispute that P.W.3 was the President of the Toddy Tappers Society, Balakonda during the relevant period. According to P.W.3, on 26-01-1997, the appellant came to their society and booked a case and again, on 01-02-1997, the appellant came to their society and demanded a sum of Rs.10,000/- towards monthly mamools. It is also the specific case of P.W.3 that the appellant threatened to book false cases against them. His further case is that then, he consulted the other members of the society and they all came to the conclusion that they cannot meet the huge demand of the appellant and therefore, they decided to approach the A.C.B. officials and directed P.W.1 to approach the A.C.B. officials. It is argued that if at all the appellant wanted to fix mamools, he would not have raided the society on 26-01-1997 and he would not have destroyed 3,600 litres of adulterated toddy on that day. With a view to compel the society to fix the huge mamools and to pay the huge amount, the possibility of appellant for conducting raids to threaten P.W.3 and others cannot be ruled out. Similarly, the possibility of the society members becoming aggrieved by the action of accused cannot be ruled out. Admittedly, P.W.1 lodged a complaint to the A.C.B officials in Ex.P-1. According to P.W.1., he was working as an Accountant-cum-Cashier in the society and he was paid Rs.2,000/- per month towards his remuneration. According to P.W.3, P.W.1 was working as Muneem in their society and the duties of P.W.1 were to maintain accounts of the society, to pay rentals to the government on behalf of the society, to do other correspondence with the government officials and to look after the court cases. According to P.W.3., P.W.1 was paid a monthly salary of Rs.1,500/- to Rs.2,000/-. P.W.3 admitted that no nowkarnama was given to P.W.1 by the date of this incident. He has also admitted that there is no document to show that the society has paid remuneration to P.W.1. If at all P.W.1 was not having nowkarnama, which is required to be issued by the Excise officials, it is for the excise officials to take action against P.W.3 for utilizing the service of P.W.1 against the rules. Though there is no documentary evidence, but the oral evidence of P.W.1 and P.W.3 show that P.W.1 was working for the society. The very fact that P.W.1 lodged Ex.P-1 complaint and the contents of Ex.P-1 also corroborate their evidence. The evidence of P.W.4 and P.W.5 also shows that they knew P.W.1 and all the circumstances go to show that P.W.1 was representing the society before the officials. 16. The next contention of the learned senior counsel is that P.W.1 is not a trustworthy witness. It is true that P.W.1 was an ex-convict. He served the sentence in a murder case. It is also a fact that the brother of P.W.1 was involved in a murder case. However, on that ground, the evidence of P.W.1 cannot be discarded. As far as the appellant is concerned, there is nothing on record to show that there was enmity between P.W.1 and the appellant. There is nothing on record to show that the appellant had registered any cases against P.W.1. On one hand, it is argued that P.W.1 is not the employee of the society. On the other hand, it is argued that P.W.1 lodged a false complaint against the appellant as he had raided the society. 17. As far as the demand of the appellant is concerned, though there appears to be some discrepancy in the evidence of P.Ws.1 and 3, the same appears to be a minor discrepancy. According to P.W.3, the appellant went to their society on 01.02.1997 and demanded a sum of Rs.10,000/- towards the monthly mamools and also threatened to book false cases. According to P.W.3, then he consulted the other members of the society and informed P.W.1 about the demand of the appellant. He was cross examined to show that he had stated before P.W.7 in his 161 Cr.P.C. statement marked as Ex.D-3 that P.W.1 was also present when the appellant visited the depot and demanded Rs.10,000/- as monthly mamool. It is the case of P.Ws.1 and 3 that on 01.02.1997, P.W.1 approached the A.O. at his office at Armoor and requested not to harass the members of the society. The specific case of P.W.1 is that when he met the appellant on 01.02.1997, the appellant demanded to pay a sum of Rs.10,000/- and further directed to pay a sum of Rs.10,000/- on or before 07.02.1997. According to P.W.3, P.W.1 informed him about the demand of the appellant and then, he discussed with other members of the society and directed P.W.1 to approach the A.C.B officials, since they were not in a position to meet the huge demand of the appellant. Accordingly, P.W.1 approached the A.C.B. officials. Whether P.W.1 was present when the appellant visited society on 01.02.1997 or not is an important issue. Minor contradictions will be always there in the evidence of natural and truthful witnesses. The evidence of P.W.1 and P.W.3 cannot be disbelieved on the ground of some minor unimportant contradictions. It is settled law that the minor contradictions in the evidence of prosecution witnesses rather assure that the witnesses are not tutored and that their evidence is natural. 18. The main defence of the appellant is that the appellant did not receive the bribe amount from P.W.1 and that the tainted amount was kept in the shirt pocket of the appellant when he kept the shirt on the chair and went to toilet in his office room. It is further argued that even if the appellant had not given spot explanation, his explanation given at the time of his examination under Section 313 Cr.P.C. can be taken into consideration. There is no dispute with regard to this settled legal preposition, but what is to be seen is whether the version of the appellant is probable or not. If we carefully examine the evidence of prosecution witnesses, the evidence of P.Ws.4 and 5 clinches the issue. P.W.4 was working as Prohibition and Excise Inspector. P.W.5 was working as Constable in the office of the appellant. P.W.4 categorically deposed that on the date of trap, P.W.1 came to their office at about 2 p.m. and enquired about the appellant and he informed P.W.1 that A.O. went out on official duty. He further deposed that after about one hour, the appellant came to their office and on seeing the appellant, P.W.1 and another person, who came along with P.W.1, approached A.O. and all of them went to the first floor of the appellant. P.W.5-Excise Constable also deposed that at about 2.45 p.m. on the date of trap, A.O. came to the office and P.W.1 another stranger met A.O. and that all of them together went into the first floor i.e., to the office room of the appellant. Both P.Ws.4 and 5 deposed that within few minutes, A.C.B. officials went into the office room of the appellant. The evidence of P.Ws.4 and 5 clinchingly establishes that when the appellant came to the ground floor, P.Ws.1 and 2 met him and all of them went to the office of the appellant. Thus, the evidence of P.Ws.4 and 5 clinchingly establishes