THE HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.2559 of 2004 ORDER: This is a State appeal from acquittal in an ACB trap case. The Deputy Superintendent of Police, Anti- Corruption Bureau, Visakhapatnam, charge sheeted four (4) accused i.e. A-1 to A-4 for oﬀences punishable under Section 13(2) r/w Section 13(1)(c) and Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short Act), on allegations of bribery before the Court of III Additional District & Sessions Judge -cum- Special Judge for ACB Cases, Visakhapatnam (trial court). 2. At the relevant time A-1 G.Sanyasi Rao was the Sanitary Inspector, A-2 M.Narasinaidu was the Public Health Worker, and A-3 and A-4 were Health Mastry a n d Badli worker respectively in the service of Visakhapatnam Municipal Corporation which is a local authority. They were admittedly public servants within the meaning of the Act. 3. The trial court by its order dated 24.01.2000 passed in Crl.M.P.No.404 of 1998 on its ﬁle discharged A-3 and A-4 from the case and that order has become final. The trial court however framed charges under Section 7, Section 13(2) r/w Section 13(1)(d), Section 13(2) r/w Section 13(1)(a) of the Act and Section 201 of the IPC against A-1 and A-2. The substance of the charges is that both A-1 and A-2 on a prior demand, collected a sum of Rs.375/- towards licence fee instead of correct fee of Rs.75/- on 22.02.1993 at about 2.50 PM from the complainant i.e. P.W.1 M.Ramu for his tea stall and they also earlier collected other higher amounts from other traders to illegally enrich themselves for granting licences and that both were trapped with regard to the collection of higher amounts from P.W.1 and in the trap A-2 at the instance of A-1 retained Rs.75/- which is the correct licence fee and threw away the balance amount of Rs.300/- and caused disappearance of the evidence of oﬀence committed by them. The allegation is that they collected Rs.300/- extra as bribe to give licence to P.W.1. It should be noted that in the charge sheet the oﬀence under Section 7 of the Act relating to collection of illegal gratiﬁcation is not mentioned but a charge has been framed by the trial court for that oﬀence also as the allegations do disclose it. They pleaded not guilty. 4. The trial court after considering the evidence let in by both sides by its judgment dated 24.05.2002 acquitted A-1 and A-2 of all the charges. State ﬁled this appeal questioning the said acquittal. 5. A-1 at the relevant time as Sanitary Inspector of Corporation was authorized to collect licence fee for tea stalls from traders levied from time to time by the Municipal Corporation and after collecting the amounts he had to remit the amounts in the treasury pertaining to the account of the said Corporation. A-2 was assisting and helping A-1 in this authority. The charge sheet reads that A-1 and A-2 were in the habit of collecting higher amounts from traders than the licence fee ﬁxed by the corporation for issuing licences or for recording grant of licences. 6. The prosecution version is that P.W.1 M.Ramu (de facto complainant), who was suﬀering from leprosy since about 15 years prior to the date of trap, started a tea stall in the year 1992 at Visakhapatnam at a place which was within the jurisdiction of A-1 at the relevant time. It is alleged that for the year 1992, A-1 collected a sum of Rs.375/- from P.W.1 towards licence fee though t h e licence fee during that year for the tea stall of P.W.1 was only Rs.50/- and in fact A-1 issued a receipt for Rs.50/- only to P.W.1 at that time. It is then alleged that subsequently on 18.02.1993 A-1 again demanded P.W.1 to pay him a sum of Rs.375/- towards licence fee for the year 1993-94 but on that occasion P.W.1 raised an objection and questioned A-1 that he did not pass receipt for the full amount of Rs.375/- which was collected from him for the year 1992 and demanded A-1 to disclose the correct licence fee that is to be paid for the year 1993-94. On such a protest from P.W.1, it is further alleged that A-1 threatened P.W.1 that he can get the licence of P.W.1 cancelled as he was suﬀering from leprosy and cannot run a tea stall as per the municipal corporation rules and demanded P.W.1 to pay an amount of Rs.375/- on 22.02.1993. As already mentioned the above incident between A-1 and P.W.1 happened on 18.02.1993. 7. The further version of the prosecution is that on 18.02.1993 itself as P.W.1 was unwilling to pay the amount of Rs.375/- to A-1, he gave Ex.P.1 report to P.W.9 N. Saibaba, DSP, ACB, Visakhapatnam and a case was duly registered and it is further stated that P.W.9 arranged a trap on 22.02.1993 at about 2.50 PM in the oﬃce of A-1. The prosecution version is that both A-1 and A-2 were found in the oﬃce of A-1 and on the instructions of A-1, A-2 has received the amount of Rs.375/- from P.W.1 and when the mediators and P.W.9 DSP entered the room of A-1 to apprehend them and recover the amount, they found that A-2 was in possession of only Rs.75/- and the latter threw away the balance of Rs.300/- on the instructions of A-1 by wrapping that amount in a newspaper cover and threw it on the debris which was lying nearby the oﬃce room of A-1 to avoid the prosecution. The prosecution case is that the trap was successful as the amount of Rs.300/- was recovered at the instance of A-2 and the sum of Rs.75/- was found with him. 8. As the whole matter is now at large before this court a mention should be made about the material evidence let in by the prosecution in support of the charges. P.W.2 Neelam China Venkata Rao who was the then Assistant Executive Engineer in Panchayat Raj Department, Visakhapatnam, was one of the two mediators while the other was K.Srirama Murthy a Senior Assistant in the oﬃce of Deputy Executive Engineer, PR, I & S Sub-Division, Visakhapatnam, whose services were taken by P.W.9 the DSP for laying the trap. P.W.8 N.Madhavarao was the then Inspector of Police, ACB, Visakhapatnam who assisted P.W.9 the DSP. P.W.3 Ratanlal Dugar, P.W.4 P.Nagaraju, P.W.5 K.Sanyasirao and P.W.7 M.Apparao were examined as other traders who are said to have paid excess amounts towards their licence fee to A-1 during the relevant years and their evidence is relevant for the charge under Section 13(1)(a) r/w Section 13(2) of the Act. 9. P.W.6 K.Sambasiva Rao is the then Assistant Medical Oﬃcer of Municipal Corporation, Visakhapatnam. It transpires from his evidence that for the year 1993-94 the licence fee for tea stalls was increased to Rs.75/- and this is admitted. The trial court as already mentioned rejected the prosecution case in toto. 10. Now coming to the charge under Section 13(1)(a) of the Act it deals with a public servant habitually accepting or obtaining from any person for himself any gratiﬁcation other than legal remuneration. Both A-1 and A-2 were put on trial for this charge on the prosecution allegation that they collected higher amounts from P.Ws.3, 4, 5 and 7 the other traders. It is seen that the prosecution examined them to support its case against A-1 and A-2 to show that they were habitually collecting higher amounts than the amounts prescribed for licence fee and their evidence is relied upon to show that in the usual course A-1 and A-2 were collecting higher amounts and they also demanded P.W.1 in that process for payment of higher amount. It may be noted that though P.Ws.3, 4, 5 and 7 have spoken about the collection of higher amounts by A-1, they did not make any complaint to the higher authorities in the municipal corporation or the ACB authorities at the relevant time. It therefore follows that in the absence of any other evidence to support their above version it will not be safe to uphold the said charge. Accordingly the said charge must be rejected as not proved. 11. That takes me to the charges framed on the complaint of P.W.1 and it has now to be seen whether the evidence on record is suﬃcient to sustain them as proved beyond doubt. It may be noted that on the evidence brought on record the prosecution version regarding the stage at which the ﬁrst mediatornama was drafted does not assume much importance but what all that has happened in the second mediatornama i.e. post-trap proceedings on 22.02.1993 and the evidence of P.Ws.1 and 2 and P.W.9 the DSP assumes importance for deciding the above question. 12. Ex.P.7 is the second mediatornama. It shows that when P.W.9 the DSP and the mediators entered the oﬃce room of A-1 after receiving the signal from the Inspector Ramakrishna, P.W.9 the DSP and the mediators did not ﬁnd any amount in the possession of A-1 and the sodium carbonate solution test conducted on his hands also proved negative. It therefore follows that A-1 did not receive the bribe amount. It may then be noted that it will be found from the evidence of P.W.2 Neelam China Venkata Rao one of the mediators that after himself and the DSP entered the room of A-1, A-2 was just then coming inside the room. This is also recorded in Ex.P.7 second mediatornama. In other words what follows is that when the trap party entered the room of A-1 they did not ﬁnd A-2 there but A-2 entered the scene just after they entered it. 13. It should be noted that after A-2 entered the room P.W.9 conducted sodium carbonate test on the ﬁngers of both the hands of A-2 and the said test proved positive but only a sum of Rs.75/- which is the amount relating to prescribed licence fee was recovered from A- 2 but not the whole amount of Rs.375/-. Regarding the balance of Rs.300/- it is the version of P.W.2 and P.W.9 and it is also recited in Ex.P.7 that the said amount was found on the debris and it was lying on a paper cover. This is marked as M.O.9. The version of both P.W.2 and P.W.9 is that in the interrogation made by them A-2 disclosed that he received Rs.375/- from P.W.1, but at the instance of A-1 and on seeing the trap party oﬃcials described as strangers by him he retained only Rs.75/- and threw the amount of Rs.300/- on the debris which is near the oﬃce room of A-1. The question now is whether the above version of P.Ws.2 and 9 can be accepted. 14. On the above aspect it may be noted that it is the version of P.W.1 that when he asked A-1 to take the money A-1 told him to give it to A-2 and when he oﬀered the money to A-2 the latter initially told him that he will take it at his shop in the evening and thereafter he (P.W.1) went upto the road from the oﬃce room of A-1 and again returned to A-2 and told him that if he retains the money it may be spent away by him and requested A-2 to take it and thereupon A-2 took it. P.W.1 then stated that immediately he went out and gave the signal following which the trap party rushed into the oﬃce room of A-1. P.W.3 and P.W.9 admittedly did not see A-2 throwing away the amount of Rs.300/- and they are only going by the alleged disclosure made by A-2 on that aspect before them. 15. From the version of P.W.1 it is clear that A-1 did not take the money and A-2 also initially did not take the money and P.W.1 went out and again came into the room of A-1 and requested A-2 to take the money as mentioned above. It should also be noted that when trap party entered the room of A-1, A-2 was also just entering into the room of A-1 as per P.W.3 and even the recitals in Ex.P.7. The debris is just by the side of the room of A-1. 16. Now what should be noted is that according to P.W.1, A-2 did not follow him upto the road when he ﬁrst refused the money and even on the second occasion when P.W.1 went out and gave signal P.W.1 did not say that A-2 followed him. Soon after the receipt of signal P.W.3 and P.W.9 rushed into the oﬃce and it is, having regard to the topography of A-1’s room/oﬃce, quite possible that if A-2 has thrown out the money just then they must have deﬁnitely seen it but they did not speak of the same. 17. It should be now noted here that according to Ex.P.6 rough sketch the shed wherein the debris was lying is on the eastern side of the room of A-1 and on the northern side there is a vacant space and the door to the room of A-1 is also on the northern side opening into the said vacant space. The road is on the western side of the oﬃce room of A-1 and the main entrance to the room of A-1 is on the western side abutting the road. Thus even if P.Ws.3 and 9 have come from the western side they have to necessarily enter the room of A-1 only through the doorway which is on the northern side and there is no doorway into the shed from the room of A-1. 18. Thus even if A-2 has gone out from the room of A-1 and has thrown the balance of Rs.300/- on to the debris in the shed which is in the south-western side of the shed, he has to again enter the room of A-1 only from the northern door through which the trap party also entered. In such a situation P.Ws.3 and 9 would have deﬁnitely seen A-2 throwing the money i.e. Rs.300/- on to the debris and A-2 must have entered the room only after throwing the money as it is the version of P.W.2 the mediator that A-2 also entered the room just after they entered it. 19. The evidence let in by the prosecution shows that P.W.1 giving the money of Rs.375/- to A-2, going out to signal to the trap party and the trap party entering the room of A-1 and then A-2 immediately entering it must have all happened quickly in minutes. Having regard to the topography of A-1’s room, the shed and the open space shown in Ex.P.6 sketch it will be diﬃcult to accept the version of P.W.3 the mediator and P.W.9 DSP that A-2 disclosed to them that he has thrown the balance money of Rs.300/- after seeing them for the reason that if A-2 has thrown the money as alleged by the prosecution in the above situation P.Ws.3 and 9 would have seen it. Thus the contention of the senior counsel appearing for the accused that P.Ws.3 and 9 spoke about the above confessional disclosure of A-2 and wrote it in Ex.P.7 second mediatornama only to suit the prosecution case cannot be ruled out and this creates a reasonable doubt about the prosecution version regarding the post-trap proceedings. In the above circumstances it follows that the above contention of the senior counsel merits acceptance. 20. There is also another circumstance which strengthens the above doubt and that is this. According to the prosecution the sum of Rs.375/- consisted of two notes of hundred rupee denomination, three notes of rupee ﬁfty denomination, two notes of ten rupee denomination and one note of ﬁve rupee denomination. It may be noted that out of the above amount, if the prosecution case is to be accepted, A-2 must have counted the money and retained one note of ﬁfty rupee denomination and the balance of two notes of ten rupee denomination and the ﬁve rupee note which would aggregate to Rs.75/- and then thrown the balance of Rs.300/- on to the debris. In the above situation which all happened in a quick moment of things it would be diﬃcult to believe that A-2 has counted the money and retained Rs.75/- and thrown the balance on to the debris. It should also be noted that M.O.9 is the waste news paper cover on which the amount of Rs.300/- is said to be found and this M.O.9 and the amount were found on the debris. This M.O.9 was not subjected to sodium carbonate solution test and this again raises a doubt whether the sum of Rs.300/- was found as pleaded by the prosecution. 21. The above two circumstances would thus strengthen the doubt created about the prosecution story of A-2 throwing away the balance of Rs.300/-. As already seen the admitted licence fee for the stall of P.W.1 is Rs.75/- and this was the amount found with A- 2. The phenolphthalein power was also applied to this sum of Rs.75/- and therefore the fact that sodium carbonation test proved positive on the hands of A-2 cannot be held to show his complicity as he could have as well received it treating it as licence fee paid by P.W.1. Thus the above circumstances in the post-trap proceedings show that the prosecution case regarding recovery of balance amount of Rs.300/- at the instance of A-2 and that he received it at the instance of A-1 cannot be accepted as proved beyond reasonable doubt. It may also be noted that this is an appeal from acquittal. The trial court recorded acquittal after considering the above aspects in the evidence and its conclusions cannot therefore be said to be unfounded. In such a situation I am of the opinion that there is no ground to interfere with the judgment under appeal. No other points are urged. 22. Accordingly for the aforesaid reasons it follows that the judgment of acquittal recorded by the trial court has to be conﬁrmed. This appeal is therefore dismissed conﬁrming the judgment of the trial court in all respects. The bail bonds of the appellant shall stand cancelled after the expiry of the time available for prosecution to pursue its remedies against this judgment. ________________________ N. RAVI SHANKAR, J 2nd December, 2011 CVRK