THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL No.2588 of 2004 JUDGMENT: Appellant R.Basavaiah is the first accused in C.C.No.27 of 1994 on the file of the Court of Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad (trial court). He along with second accused was tried on charges under Sections 7 and 13(1)(d)(i) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act) relating to bribery. 2. The trial court after considering the evidence, by its judgment dated 29.11.2004, acquitted the second accused of all the charges, but convicted the appellant of both the charges and sentenced him to undergo rigorous imprisonment (RI) for one year and a fine of Rs.1,000/- on first count and RI for two years and a fine of Rs.2,000/- on second count with default clause prison sentences with respect to fines. The trial court directed that the substantive sentences of imprisonment shall run concurrently. This appeal is filed questioning the aforesaid judgment. The acquittal of the second accused has become final as prosecution did not file any appeal questioning the same. 3. Before the prosecution case is stated, certain admitted facts should be noted. One M.Nagabhushanam was the licensed excise contractor for the arrack shops in the Nirmal unit for the excise year 1992-1993. P.W.1 G.Mohan Reddy was then the Clerk of the aforesaid M.Nagabhushanam. The appellant at that time was working as Excise Sub-Inspector in the arrack bottling unit (for short bottling unit) at Utnoor and he was also called as “Assistant Manufactory Officer” and he was admittedly a public servant within the meaning of the Act. At that time M.Nagabhushanam was drawing arrack for his shops from the above bottling unit. So far as these aspects are concerned there is no dispute. Even with regard to the prosecution plea that it obtained valid sanction for prosecuting the appellant also there is no dispute. 4. The prosecution case is that during April, May and June 1993 the appellant and one M.Shankar who was the then Assistant Manager in the above bottling unit were giving trouble to the aforesaid excise contractor M.Nagabhushanam and P.W.1 by delaying supply of minimum guaranteed quantity of arrack for April and May 1993 and also June 1993 from the bottling unit threatening that unless M.Nagabhushanam pays bribes to them they would not release the arrack quantities smoothly on schedule and according to the prosecution that was resulting in business losses to M.Nagabhushanam. It is alleged that on 8.6.1993 the appellant demanded P.W.1 G.Mohan Reddy to pay him a bribe of Rs.47,760/- for releasing the arrack quantities on schedule to M.Nagabhushanam’s shops and instructed him (P.W.1) to inform the same to the latter. This bribe amount of Rs.47,760/- was calculated on per litre basis and these details are mentioned in the trial court judgment and it would be sufficient to note that, according to the prosecution, the above aggregate amount was demanded as bribe. 5. It is stated that the appellant sent a chit calculating the above amount of bribe to M.Nagabhushanam through P.W.1 and the prosecution version is that the said chit was written by A-2 B.Laxmana Chary another Excise Sub-Inspector in the bottling unit. All this happened on 8.6.1993 during day time, and according to the prosecution P.W.1 informed the same to excise contractor M.Nagabhushanam and both of them again met the appellant on the same day and at that time on the plea of M.Nagabhushanam that he cannot pay such a large amount of Rs.47,760/-, the appellant instructed M.Nagabhushanam and P.W.1 to pay a sum of Rs.20,000/- as the first instalment out of the total bribe amount. 6. The further version of the prosecution is that on same day i.e. 8.6.1993 M.Nagabhushanam and P.W.1 also met the aforesaid M.Shankar the Assistant Manager of the bottling unit in connection with the supplies of arrack and on that day the said M.Shankar also demanded a sum of Rs.10,000/- as bribe for supplying the arrack smoothly on schedule. It is stated that as M.Nagabhushanam was unwilling to pay the bribes, he along with P.W.1 went to the office of the DSP, ACB, Nizamabad and while M.Nagabhushanam gave a complaint against M.Shankar, P.W.1 gave complaint against the appellant and two separate cases were registered against both of them. 7. According to the prosecution after registering the case against the appellant P.W.5 the DSP, ACB with the help of mediators laid the trap on 12.6.1993 to apprehend the appellant red-handed and the trap was laid in the bottling unit itself and it was successful. It is stated that the bribe amount of Rs.20,000/- was recovered from an almyrah/cabin in the office room of the appellant on the information given by the appellant himself and the sodium carbonate solution test also proved positive on both the hands of the appellant before the recovery of the amount. P.W.2 G.Satyanarayana who was the then Mandal Revenue Inspector, Nirmal was one of the two mediators for the pre-trap and the post- trap proceedings and he supported the case. It must be mentioned here itself that the aforesaid M.Shankar, Assistant Manager of the bottling unit was also trapped on the same day and he was tried of the same charges in C.C.No.23 of 1994 on the file of the trial court which resulted in his conviction and his appeal i.e. Crl.A.No.2378 of 2004 is also being disposed of today. 8. It has now to be seen whether the evidence on record is sufficient to hold that the prosecution is able to establish the charges brought against the appellant beyond all reasonable doubt as held by the trial court. This is the point in this appeal. 9. So far as pre-trap proceedings are concerned, P.W.1 G.Mohan Reddy in his evidence mentioned about the demand of the appellant for the bribe amount of Rs.47,000/- and odd on 08.06.1993 and also about his complaint i.e. Ex.P.1 to P.W.5 K.Saibaba the then ACB DSP of Nizamabad range having jurisdiction over Utnur also. P.W.5 also confirmed the same. Then P.W.1 and P.W.5 and also P.W.2 D.Satyanarayana the then Mandal Revenue Inspector, Nirmal, who is one of the two mediators chosen by P.W.5, spoke about the smearing of the currency notes of the value of Rs.20,000/- consisting of 100 notes of Rs.100/- denomination and 200 notes of Rs.50/- denomination with phenolphthalein powder and the necessary instructions given by P.W.5 and his staff to P.W.1 and P.W.2 as to how they should go to the bottling unit and pay the amount to the appellant. 10. The above pre-trap proceedings according to P.Ws.1, 2 and 5 took place on the morning of 12.06.2003 at about 8.30 AM in the guest house at Nirmal and Ex.P.3 is the mediators report for the pre-trap proceedings. On this aspect of pre-trap proceedings no dispute is raised by the defence. Sri Dittakavi Venkateswara Rao, the learned counsel for appellant pointed out, what he calls, certain lapses in the evidence as to the recovery of the amount allegedly from the possession of or on the information given by the appellant and argued that the said lapses apart from showing that the said recovery is doubtful even throw a doubt on the prosecution version regarding the first demand also for the bribe and therefore the charges should be rejected as not proved. He also raised other contentions which will be referred to, but the main defence of the appellant is P.W.1 planted the money in the place from where it was recovered. On the other hand, Sri Ramachandra Reddy the learned Additional Public Prosecutor appearing for ACB argued that there are no defects at all in the evidence and the trial court was right in convicting the appellant of both the charges. Having regard to the main defence of the appellant, it is now proposed to examine the evidence relating to payment of bribe money to the appellant on the date of trap which is 12.06.1993 and its recovery as pleaded by the prosecution to see whether its plea in this behalf can be accepted. 11. From the evidence of P.Ws.1, 2 and 5 it will be found that they reached the bottling unit by about 10.30 or 11.00 AM. The version of P.W.1 is that after they went to the bottling unit he signed in the register in the security room and went inside the bottling unit and soon thereafter himself and the mediators i.e. P.W.2 who acted as accompanying witness also went to the room where the appellant was found and there the appellant demanded him the bribe money and accordingly he paid the amount of Rs.20,000/- to him and he received it and kept on his table. P.W.2 also confirmed the evidence of P.W.1 to the above extent and he then stated that immediately he came out and gave the pre- arranged signal whereupon P.W.5 the DSP entered the office room of the appellant and P.W.5’s version is when he questioned the appellant about the money the appellant himself voluntarily pulled out the second drawer of his office almyrah and took out the sum of Rs.20,000/- which was found wrapped in a khakhi pant i.e. uniform belonging to appellant. His next version is that the numbers of the currency notes given to P.W.1 in pre-trap proceedings tallied with the above currency notes given by the appellant. P.W.5 also stated that before the amount was recovered, the sodium carbonate solution test conducted on the hands of appellant also proved positive. 12. The contention of Sri Venkateswara Rao is that according to P.Ws.1 and 2 the alleged bribe amount was kept on the table of the appellant by the appellant himself after he received it and the prosecution did not satisfactorily explain as to how the amount reached the almyrah where it was found and therefore this circumstance alone throws a doubt on the prosecution case regarding the trap. He also pointed out that P.W.2 in his evidence (i.e. in the cross-examination) stated that as soon as he and the DSP entered the office room of the appellant they found P.W.1 talking with the appellant and P.W.1 also pointed out to them towards the almyrah from where the amount was recovered and this itself shows that P.W.1 earlier planted amount there. It is true that the above version is found in the cross-examination of P.W.2. Basing upon the above answer of P.W.2, the defence counsel argued that the version of the appellant that P.W.1 himself must have planted the currency notes in the above almyrah with the help of one S.Mallaiah a constable or head constable who was working in the bottling unit at that time must be accepted. This contention, in my opinion, cannot be accepted for the following reasons. 13. It may be noted here that prosecution has examined the above constable S.Mallaiah as P.W.4. His examination became necessary as it is recorded in the second mediatornama (Ex.P.4) that appellant told P.W.5 the DSP that he instructed P.W.4 to keep the amount in almyrah after receiving it from P.W.1. P.W.4’s version is that on the date of trap by about 11.00 AM or so P.W.1 came to the room of the circle inspector and at that time the appellant and the second accused were attending to their duties and as soon as the appellant saw P.W.1 he demanded the amount from P.W.1 and received it. He then added that after receiving the amount and after some time the appellant gave it to him and instructed him to keep the said amount in the cabin described as almyrah which is used for keeping files, records and uniform. P.W.4 also further added that the appellant specifically directed him to keep the amount in his uniform in the cabin and he accordingly followed the said instructions. 14. The further version of P.W.4 is that soon thereafter the ACB officials came there and enquired with the appellant about the amount and P.W.5 the DSP also conducted sodium carbonate solution test on the hands of the appellant and that test also proved positive. He further added that the appellant himself on being questioned by the P.W.5 DSP took out the currency notes from the cabin or almyrah and produced them before the DSP. It should be noted that in the post-trap proceedings sodium carbonate solution test was conducted on the hands of P.W.4 also and it proved positive. The contention of the defence counsel is that P.W.4 was planted as a witness by the prosecution to bolster up its case to show that the appellant received the amount from P.W.1 while in fact he did not receive it. One aspect should be noted here and that is that P.W.1 in his evidence stated that he entered the room of the appellant who was the excise sub- inspector then whereas P.W.4 stated that the room was circle inspector’s room. There is discrepancy here but it should be noted that in the cross-examination of P.W.1 it was elicited that the circle inspector and the sub-inspector are seated in one room and the district manager is seated in another room. Thus it is possible that the circle inspector and the sub-inspector were having one room and it is not brought out in the evidence that the appellant’s room and the circle inspector’s room were different. This explains the above discrepancy. 15. The learned counsel for the appellant pointed out, to repeat, that the version of P.W.2 that P.W.1 pointed out at the almyrah as soon as he and the DSP entered the room would show that P.W.1 knew the place where the amount was kept and therefore the defence that P.W.1 planted it with the help of P.W.4. Both P.W.1 and P.W.4 denied this. In this connection the appellant also examined D.W.1 Syed Hidayatali who was another excise constable working in the said bottling unit at that time. His version is that on the date of trap he found P.W.1 Mohan Reddy and P.W.4 Mallayya talking together when the appellant was not available immediately for P.W.1 and both of them were talking some thing and went towards the almyrah from where the amount was recovered and he also saw P.W.1 taking out something from his bag and placing it somewhere in the said almyrah and it was only thereafter the appellant came there. He of-course supported the defence version of planting the money by P.W.1. 16. Now the cross-examination of D.W.1 made on behalf of the prosecution would reveal that he did not inform anybody including any higher official about the above acts of P.W.1 and P.W.4 on the date of trap and further his version shows that he gave statements to the above effect only for the first time in the trial court. It may also be noted that the appellant, P.W.4 and D.W.1 were working in the same bottling unit at that time and belonging to the same department and if really what was spoken to by D.W.1 has happened or was true it is clear that both P.W.4 and D.W.1 would have informed the matter to higher officials and would have seen that justice was done to the appellant. P.W.5 the DSP would not have dared to ignore that aspect. In such circumstances it is difficult to accept the defence of the appellant relating to planting of bribe money in the almyrah basing on the evidence of D.W.1. 17. Then coming to the evidence of P.Ws.1 and 2, to repeat, it is true that the evidence of P.W.2 would show that after the bribe money was given by P.W.1 to the appellant he immediately came out and gave signal to the trap officials and he did not know what transpired after he came out. It is also true that the version of P.W.2 would further show that when himself and the DSP entered the room where the appellant was, P.W.1 pointed out at the almyrah. Here it should be noted that the evidence of P.W.4 would show that when he kept the amount in the almyrah on the instructions of the appellant P.W.1 was very much present in that room when the trap party officials entered it. In such a situation it is quite possible that P.W.1 may have pointed out towards the almyrah when P.W.5 the DSP questioned the appellant about the money and one cannot infer anything unusual in it. It should also be noted that P.W.2 in his chief examination did not speak about the almyrah but he asserted that it was only the appellant who produced the cash on being questioned by P.W.5 the DSP. Added to this the date of trap is 12.06.1993 and P.W.2 gave evidence on 18.08.2003 i.e. nearly more than 10 years later. This factor coupled with the assertion of P.W.2 that only the appellant produced the amount when the DSP questioned him would show that the evidence of P.W.1 and P.W.4 Mallaiah the constable need not be rejected because of the above circumstances in the evidence of P.W.2. 18. Thus having regard to the evidence of P.Ws.1, 2 and 5 and for the aforesaid reasons, in my opinion, as held by the trial court the prosecution version that the appellant received that bribe amount from P.W.1 by making a demand for it on the date of trap and that he himself produced it from the almyrah when questioned by P.W.5 the DSP must be accepted. 19. The contentions raised by Sri Dittakavi Venkateswara Rao regarding the prior demand are now taken up. One contention which was raised is that for anybody to enter the bottling unit, one must sign the register maintained for the visitors at the entrance gate and since the prosecution did not produce the same pertaining to the dates 08.06.1993 P.W.1’s version regarding the demand on that date i.e. 08.06.1993 should be rejected as doubtful. Regarding this aspect it should be noted that P.W.4 who was none other than an employee of the bottling unit at that time in his evidence stated that it is not necessary for the visitors to sign the visitors register before entering into the unit. Perhaps the above rule was observed more in breach as is usual in our country. This apart, D.W.1 the constable examined by the appellant spoke about the presence of P.W.1 and the ACB officials in the bottling unit on the date of the trap. In addition to this, P.W.1 also in his evidence stated that he signed in the register and entered the bottling unit on the date of the trap. These circumstances in the evidence of the above witnesses are sufficient to reject the above contention of Sri Venkateswara Rao. 20. Another contention raised on behalf of the appellant was that he was only an excise sub-inspector looking after the manufacture and he has no authority to permit drawal of arrack from the bottling unit and therefore P.W.1’s version that the appellant demanded the bribe for releasing the arrack cannot be accepted. On this aspect also D.W.1 a witness examined by the appellant himself in his cross-examination stated that without the permission of the appellant and the second accused additional quota cannot be lifted from the bottling unit. Of-course in his evidence P.W.1 stated that the appellant demanded bribe for the supply of arrack from the bottling unit for the month of April and May 1993 but not with regard to additional quota. In the complaint also the same allegation is made. The version of P.W.1 is that the appellant has demanded the bribe amount only for smoothly releasing the arrack quotas for April and May 1993 and he asserted about the said demand on 09.06.1993. Yet another contention was about the zip bag mentioned by P.W.1 and its non-marking before the trial court. It is true that P.w.1 mentioned about a zip bag in which he carried the bribe amount. However the evidence on record would show payment of bribe and its recovery in a convincing manner. Hence the non-production of the zip bag and non-marking of the same before the trial cannot have any adverse effect on the merits of its case. 21. In B.Noha v. State of Kerala[1], relied upon by Sri Ramachandra Reddy the learned Special Public Prosecutor appearing for the ACB, in a case relating to charges under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act relating to demand and receipt of illegal gratification, it has been held by the Supreme Court that when it is proved that there was voluntary and conscious acceptance of money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive for the bribe amount. In the present case it may be noted that the above evidence of P.W.1 regarding the demand for the reasons aforesaid cannot be said to be unconvincing. Further having regard to the above decision of the Supreme Court it can also be concluded that even if there are minor discrepancies which are not material the principle laid down in the said decision cures the same. 22. It may also be noted here that the evidence of P.W.1 would clearly prove the demand made by the appellant on 08.06.1993. Nothing has been elicited from P.W.1 or even P.W.5 the DSP that appellant was in no position to prevent supply of arrack to the shops of the excise contractor Nagabhushanam of whom P.W.1 was the clerk. Added to this the evidence relating to payment of bribe and the recovery of the amount can be said to be convincing as held by the trial court. In these circumstances and having regard to the principle laid down in the D. Noha’s case (1 supra) it follows that the defence contentions have to be rejected. 23. It should also be noted that on 12.06.1993 P.W.5 the DSP made arrangements to trap the appellant and as well as M.Shankar the Assistant Manager of the bottling unit and the record shows that P.W.5 remained at the bottling unit in connection with the trap laid for the appellant while he sent Nagabhushanam and the mediators therein and one sub-inspector for the purpose of giving bribe to M.Shankar so as to trap him and that took place in the Utnur village. What should be noted is that ultimately the trap proceedings even in respect of the appellant and as well as M.Shankar were completed by P.W.5 the DSP. Nothing has been pointed out to hold that the above procedure adopted by the DSP is illegal or has resulted in any prejudice to the appellant. 24. For the aforesaid reasons it follows that the convictions recorded by the trial court in its impugned judgment for the charges under Section 7 and Section 13(1)(d)(i) of the Act have to be confirmed and they are accordingly confirmed. Then coming to sentences the trial court imposed one year RI on the first count and two years RI on the second count besides the fine amounts which are already mentioned supra. The case is of 1994 and the appeal is of 2004 and the appellant has undergone the agony of criminal proceedings for about 17 years till now. In the circumstances I am of the opinion that the RI on the second count can be reduced to one year while maintaining the other sentences awarded by the trial court. 25. Accordingly with the above modification in the sentence on the second count i.e. under Section 13(1)(d)(i) read with Section 13(2) of the Act, this appeal is dismissed confirming the judgment of the trial court in all respects. Both the substantive sentences of imprisonment shall run concurrently and the appellant shall also be entitled to the benefit of set off of his previous under trial custody if any. 26. As the appellant is stated to be on bail he shall surrender before the trial court within 15 days from today to serve out the sentences as modified now failing which the trial court shall take