THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 593 OF 2003 JUDGMENT: 1. This Criminal Appeal is preferred against the judgment dated 10.06.2003 in Calendar Case No.22 of 1996 on the file of the III Additional District & Sessions Judge-cum-Special Judge for A.C.B. Cases, Visakhapatnam, whereunder and whereby the appellant/sole accused was convicted of the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and sentenced to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of 15 days, under each count. 2. The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: The appellant was working as Assistant Commercial Tax Officer, Poorna Market Area, Visakhapatnam. D.W.1 was working as his Attender. P.W.1 was doing business in making jewellery boxes with cardboard and velvet cloth. The place of business of P.W.1 was at Madras, but due to lack of work at Madras, he was undertaking work at Visakhapatnam. On 14.11.1995, P.W.1 came to Visakhapatnam along with his colleague by name Veerabadran and started staying in Room no.5 of Rose Land Lodge and they were attending to their business. On 11.12.1995, the appellant along with D.W.1 went to the room of P.W.1, enquired about licence, searched the room and took possession of letter pad, diary, etc. of P.W.1. The appellant wrote something on the paper and obtained signature of P.W.1. P.W.1 signed without knowing the contents. The appellant stated that P.W.1 was doing big business and demanded that a sum of Rs.50,000/- was payable as Tax. P.W.1 informed the appellant that he was a labourer and getting income to meet room rent and labour charges. The appellant demanded P.W.1 to pay bribe of Rs.10,000/- threatening to send him to jail. When P.W.1 expressed his inability, the appellant searched the bag which was in the room and took Rs.1,500/- out of Rs.1,800/- available in the bag. The appellant asked P.W.1 to come to his office on the next day. Accordingly, on 12.12.1995, P.W.1 went to the office of the appellant. On that day, the appellant came to office at 1.00 PM, scribed a statement and took the signature of P.W.1 on it. The appellant threatened P.W.1 to pay the demanded amount, failing which the appellant threatened to inform the superiors. When P.W.1 expressed his inability, the appellant reduced the demand to Rs.8,000/- and demanded P.W.1 to bring Rs.6,500/- by the evening of that day. As P.W.1 could not secure the amount, he did not go to the office. On the same day i.e. on 12.12.1995 at about 8.45 PM, the appellant along with D.W.1 went to the room of P.W.1, enquired as to whether the bribe amount was secured or not, and when P.w.1 replied negatively, the appellant instructed P.W.1 to come to his office on 13.12.1995. On 13.12.1995, P.W.1 went to the office of the appellant and told him that he could secure Rs.1,500/- only and requested for some more time. On that day at 8.45 PM, the appellant along with D.W.1 went to the room of P.W.1, demanded the money and took away the available amount of Rs.1,500/-, and asked P.W.1 to get ready with the remaining amount of Rs.5,000/- by the evening of next day. When P.W.1 asked for return of records, the appellant asked P.W.1 to come to office on the next day. On 14.12.1995, P.W.1 went to the office of the appellant at 1.00 PM and requested for return of records. The appellant is said to have demanded for balance of bribe amount and told P.W.1 that he would come to his room that night. On that day, at 10.30 PM, the appellant along with D.W.1 went to the room of P.W.1. Then, P.W.1 informed him that he was having Rs.3,000/-. The appellant asked to arrange for the balance and threatened to inform superiors if the amount was not paid within two days. As P.W.1 was not willing to pay the amount, he lodged Ex.P1-report on 15.12.1995 with P.W.6, who registered a case in crime no.11/RC- WLR/95 basing on the same on 16.12.1995. Ex.P16 is the F.I.R. P.W.1 was asked to get the bribe amount and come to office on 16.12.1995 at 10.00 AM. Accordingly, when P.W.1 went there, P.W.2-mediator was present there. Thereafter, after observing necessary formalities, Ex.P9-pre-trap panchanama was drafted. The trap party left the office of A.C.B. and reached the office of the appellant at 11.45 AM. When P.W.1 went into the office of the appellant, P.W.1 was not there in his room but he was there in the opposite room. The appellant instructed his peon to take P.W.1 into his room. On demand, P.W.1 paid the amount of Rs.5,000/- and the appellant received it with his right hand and kept it in his right side table drawer. P.W.1 and the appellant came out of the chambers and then P.W.1 gave the pre-arranged signal by wiping face with hand-kerchief. Immediately the trap party rushed in. P.W.1 was asked to stay outside. Sodium Carbonate Solution test conducted on the fingers of the right hand of the appellant proved positive. The tainted amount was received on being produced by the appellant, from his table drawer. The explanation of the appellant was recorded and after completion of all the post trap formalities, Ex.P15-post trap panchanama was prepared. P.W.6 seized Exs.P2 to P6 and also Exs.P7(a) and 7(b)-statements signed by P.W.1. P.W.6 prepared Ex.P14- rough sketch of the scene. He also seized M.O.8 and other objects, arrested the appellant and released him on bail. After obtaining sanction and completion of further investigation, the charge sheet was laid. 3. The charges framed against the appellant are as follows: “That, you, Kota Uma Maheswarachari, being a Public Servant viz. Assistant Commercial Tax Officer, Poorna Market area, Visakhapatnam, on or about 16th day of December, 1995 at about 12.10 P.M. in your office situated at VUDA Office complex, Siripuram junction area, Visakhapatnam, accepted and obtained a sum of Rs.5,000/- (Rupees five thousand only) from one Allapilla Santhanam Deepak of Tamilnadu State, who was staying in Room No.5 of Roseland Lodge, Visakhapatnam for securing orders to do the work of preparing ornament boxes from different merchants, for yourself as gratification other than legal remuneration as a motive or reward for doing official favour i.e. no case will be booked against him by your senior officers, in the exercise of your official functions, and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988, and within my cognizance. Secondly, that you, Kota Uma Maheswarachari, at the same time and place stated supra, by means of corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs.5,000/- (Rupees five thousand only) from one Allapilla Santhanam Deepak of Tamil Nadu state, who was staying in Room No.5 of Roseland Lodge, Visakhapatnam for securing orders to do the work of preparing ornament boxes from different merchants, and thereby committed an offence specified Under Section 13(1) (d) of the Prevention of Corruption Act, 1988 punishable Under Section 13(2) of that Act and 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 P19, including Exs.P3(a), 5(a), 5(b), 6(a), 6(b), 6(c) and P7(a) (b), besides case properties M.Os. 1 to 8. 5. After closure of prosecution evidence, when 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, he denied the same. On behalf of the accused, D.Ws.1 to 3 were examined and Ex.D1 was marked. 6. The trial Court, accepting the evidence of prosecution witnesses, found the appellant guilty of the offences under Sections 7 and 13(1) (d) 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. 7. 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) read with 13(2) of the Prevention of Corruption Act, 1988 ? 8. The learned senior counsel Sri C.Padmanabha Reddy, appearing for the appellant contended that, the appellant has got every right to assess the tax liability as P.W.1 was a casual trader dealing in making of jewellery boxes with cardboard and velvet cloth for keeping gold articles, and that when the appellant came to know that P.W.1 was evading to pay the tax, the appellant recorded the statement of P.W.1 and for determining the tax liability he took the records from P.W.1, and that in that regard, P.W.1 came to his office as directed by the appellant and gave Rs.5,000/- towards tax and the same was pushed by the appellant as the tax liability was not determined, and that, meanwhile, the appellant was called by his superior officer, and when he went there, the amount was kept in his table drawer, and that to avoid the tax, he made use of the machinery of the Anti Corruption Bureau (A.C.B.) personnel to foist the false case; that the evidence of P.W.1 cannot be put in the category of ‘wholly reliable witness’; that, the trial court has simply relied upon the evidence of P.W.3 with regard to the jurisdiction of the appellant, but as per Rules, Assistant Commercial Tax Officer is also competent to determine the tax liability of casual traders; that, except the interested testimony of P.W.1, there is no other evidence to corroborate his evidence. Hence, he prays to set aside the convictions and sentences recorded against the appellant. 9. On the other hand, Sri V.Ravi Kiran Rao, the learned Counsel appearing for the A.C.B., contended that, there is absolutely no animosity or motive for P.W.1 to foist a false case of this nature against the appellant; that, after receipt of the amount, the appellant returned the records and the same were seized by P.W.6-investigating officer, and that if the tax liability was not determined, there was no need for the appellant to return the records to P.W.1; that, the fingers of right hand of the appellant, when subjected to sodium carbonate solution test, turned into pink colour; that, if really the appellant has not received the bribe amount from P.W.1, he would not have pointed out where the bribe amount was kept, and as a matter of fact, P.Ws.2 and 6 stated that the appellant himself took out the bribe amount from his right side table drawer and gave it to the trap laying officer; 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 convicted and sentenced the appellant, and there are no grounds to interfere with the same. 10. 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. 11. As rightly pointed out by the learned senior counsel appearing for the appellant, with regard to demand, there is solitary testimony of P.W.1. 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’. When the evidence of a witness is put in the category of ‘wholly reliable’, law does not require any corroboration 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.” Bearing the above principles in mind, it has to be seen whether P.W.1 is wholly reliable witness or not. 12. P.W.1 was preparing jewellery boxes with cardboard and velvet cloth. He also used to undertake repairs to such boxes. He was resident of Chennai and he used to visit Visakhapatnam in connection with his business. On 14.11.1995, he came to Visakhapatnam and stayed in Room No.5 of Rose Land Lodge near A.V.N. College down. According to P.W.1, on 11.12.1995, the appellant along with his peon came to his room, searched the same and took possession of his letter pad, diary and order paper, and noted down something on a paper and obtained his signature under threat, which are marked as Exs. P 7(a) & (b). At that time, the appellant stated that P.W.1 was doing big business and lot of tax was due from him, and demanded for licence and order book. When he stated that he was a labourer and was getting enough income to meet his labour charges and room rent, the appellant stated that a sum of Rs.50,000/- was payable by P.W.1 as tax and demanded the said amount. When P.W.1 pleaded ignorance, the appellant demanded Rs.10,000/- towards bribe, and stated that then only he would leave P.W.1. When P.W.1 pleaded his inability to pay that amount, the appellant searched his bag and took Rs. 1,500/- out of Rs.1,800/- available in the bag. As per the instructions of the appellant, P.W.1 attended the office of the appellant on 12.12.1995. Then the appellant scribed a statement and obtained signature of P.W.1 on it. Again the appellant demanded him to pay the balance amount, and threatened that unless the balance amount was paid, the matter would be referred to his superior officer and see that he would be lodged in jail. When P.W.1 pleaded that he could not pay that much amount, the appellant reduced it to Rs.8,000/-, and since he had already paid Rs.1,500/-, the appellant directed him to bring the balance of Rs.6,500/-. P.W.1 agreed to pay that amount and he tried to secure the amount, but could not secure the same. Again, on 12.12.1995, the appellant accompanied by his Attender, came to the room of P.W.1 and demanded the amount. On the next day i.e. on 13.12.1995, P.W.1 met the appellant and stated that he was having Rs.1,500/-. Then the appellant told to arrange the balance and he would come and collect the entire amount in the night in the room of P.W.1. Accordingly, the appellant went to the room of P.W.1 on 13.12.1995 at 8.45 PM along with his peon and demanded the bribe amount. Then, P.W.1 paid Rs.1,500/- available with him. On 14.12.1995 at 10.30 PM, the appellant went to the room of P.W.1 and demanded to pay the bribe amount, then P.W.1 stated that he was having Rs.3,000/-. On that, the appellant directed to pay the balance threatening that if P.W.1 failed to pay the balance, he would report the matter to higher officials. Unable to pay that amount, P.W.1 went to A.C.B. office and lodged Ex.P1-complaint. 13. P.W.6, who is the trap laying officer, on receipt of the amount, registered the case, and after observing the necessary formalities, prepared Ex.P9-pre-trap panchanama duly noting down the numbers of the currency notes and about applying phenolphthalein powder to the notes. P.W.2 is the accompanying witness. The evidence of P.Ws. 2 and 6 would further go to show that the currency notes were seized as pointed out by the appellant, from his right side table drawer. It is also not in dispute that when the right hand fingers of the appellant were subjected to Sodium Carbonate Solution test, the solution turned into pink colour suggesting that his right hand came into contact with the tainted currency notes. The evidence of P.Ws. 2 and 6 coupled with the recitals in Ex.P15-post-trap panchanama, would clearly go to show that M.O.6-tainted currency notes were seized from the right hand table drawer of the appellant. 14. With regard to demand of bribe for showing the official favour not to levy any tax on the business turnover of P.W.1, the allegation is that the appellant demanded the amount of Rs.10,000/-. P.W.1 is totally a stranger to the appellant. Though he stated that he was a casual labourer, on his own showing he was personally making jewellery boxes with cardboard and velvet cloth. As seen from Ex.P7(b), turnover of P.W.1 is about Rs.5,15,578/-. That statement was recorded on 11.12.1995. Though P.W.1 pleaded ignorance about the contents thereof, admittedly, he signed on the said document. It is the case of the appellant that he prepared that document after verifying the records. Unless the appellant goes through all the relevant documents, it was not possible for him to state the figures with regard to turnover of his business with reference to note pad and orders and collection of certain amounts under several chits. Therefore, prior to the trap, P.W.1 had to pay certain tax or penalty on his business turnover. 15. No doubt, P.W.3, who was the Commercial Tax Officer, stated that if the turnover of a trader exceeds Rs.2.00 lakhs, penalty or tax has to be assessed by the Deputy Commercial Tax Officer, but not by an Assistant Commercial Tax Officer. Basing on the evidence of P.W.3, the trial Court found that the appellant had no jurisdiction to determine the tax liability. But, the learned senior counsel appearing for the appellant brought to the notice of this Court that as per G.O. Ms.No.1091, dated 10.6.1957 as amended by G.O.Ms.No.230, dated 12.12.1957, to the effect that an Assistant Commercial Tax Officer can also assess the turnover of the casual traders. Even assuming for a moment that the appellant is competent to determine the liability of tax on the business turnover of P.W.1, there must be some evidence to show that the appellant determined the tax payable on the turnover. On the other hand, the evidence of P.W.1 would go to show that all the relevant records which were taken by the appellant for assessing the tax liability, have been returned after receipt of M.O.6-tainted currency notes from P.W.1. It is the specific case of the appellant that he asked P.W.1 to come to his office on 16.12.1995 for assessment of tax on the business turnover of P.W.1. It is the further case of the appellant that he did not assess the tax. In such a case, there is absolutely no reason for the appellant to return the relevant records to P.W.1. As a matter of fact, records which were taken by the appellant for assessing the tax liability have been seized from P.W.1 during post trap proceedings and the said fact is also mentioned in Ex.P15-second mediators report. 16. The case of the appellant is that while he was called by the Assistant Commissioner, he went out from his seat and at that time P.W.1 kept the amount in the table drawer and took out the records. If really the said plea has to be accepted as true, the appellant would not be knowing whether the amount was kept in the drawer or not. When the trap laying officer questioned the appellant with regard to receipt of the tainted currency notes, the appellant pointed out towards right hand side table drawer, and accordingly the same were seized. The evidence of P.Ws. 2 and 6 coupled with the recitals in Ex.P15 would clearly show that the tainted currency notes have been seized as pointed by the appellant. If really the tainted currency notes were kept by P.W.1 in the table drawer of the appellant, the spontaneous explanation of the appellant would be to plead ignorance because it is his case that in his absence the amount was allegedly kept in his table drawer. Therefore, the seizure of the tainted currency notes as pointed out by the appellant appears to be more probable, and that after receipt of the tainted currency notes from P.W.1, the appellant kept the amount in the drawer. If that is incorrect, the appellant would have pleaded ignorance to P.W.6, when questioned about the tainted currency notes. 17. As a matter of fact, it is the specific case of P.W.1 that as demanded by the appellant, he paid the amount of Rs.5,000/- and the appellant received the same with his right hand and kept in his right side table drawer. On the other hand, it is the case of the appellant that when P.W.1 offered the amount towards tax, he pushed the same stating that he would receive the amount after assessing the liability of the tax. That explanation does not appear to be probable in view of the fact that there was no need for the appellant to push the cash when P.W.1 kept the same on the table. Even according to the appellant, he was seeing the papers to assess the tax and after assessing the tax he would collect the same from P.W.1 and issue necessary proceedings with regard to determination and assessment of tax on the business turnover of P.W.1. The contents of Ex.P7(b), which, according to the appellant, are true and correct, clearly disclose that the appellant inspected all the records pertaining to business of P.W.1 and he arrived at the figures basing on the document. Though it was recorded on 12.12.1995, he did not determine the liability of tax on the business turnover of P.W.1 till 16.12.1995. He could have as well seen the records and passed orders with regard to determination of the tax liability, either on the next day or on any other day. But, admittedly, no such order was passed by the appellant. These circumstances would suggest that the evidence of P.W.1 appears to be true that the appellant was demanding Rs.8,000/- towards bribe for showing the official favour i.e. not to assess any tax on the business turnover of PW.1. Even after lengthy cross-examination, nothing has been elicited from the evidence of P.W.1 as to the animus he entertained to implicate the accused falsely. There is no other reason or grouse for P.W.1, who is not a resident of that place, to use the machinery of A.C.B. to implicate the appellant falsely in a case of this nature. Therefore, there appears to be a ring of truth in the evidence of P.W.1 with regard to the purpose for which the appellant demanded money and there are no circumstances to infer that P.W.1 was having grouse or enmity against the appellant. 18. With regard to demand, the appellant/accused examined his Attender as D.W.1. Admittedly, he was cited as a