IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.287 & 290 of 2004 DATE:13.04.2011 CRIMINAL APPEAL No.287 of 2004 Between: P.Raghavachari …… Appellant And State – rep. by Inspector of Police, C.B.I, Visakhapatnam. ...Respondent CRIMINAL APPEAL No.290 of 2004 Between: K.Bapuji …… Appellant And State – rep. by Inspector of Police, C.B.I, Visakhapatnam. ...Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.287&290 of 2004 COMMON JUDGMENT : These two appeals are filed by A-1 and A-2 who worked as Income Tax Inspectors at Kakinada and Rajahmundry respectively during the relevant period, questioning their convictions and sentences passed by the Special Judge for C.B.I Cases, Visakhapatnam in C.C. No.22 of 2000 by judgment dated 04.02.2004. The lower Court by the same judgment acquitted A-3 who was working as notice surver in the Income Tax Department at Kakinada of all the charges. As against acquittal of A-3, no appeal is filed by the prosecution. The lower Court sentenced A-1 to Rigorous Imprisonment for one year and to fine of Rs.1,000/- for each of the offences under Sections 120- B, 468 I.P.C and Sections 7 and 13(1)(d)(ii)/(13)(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and also sentenced to A-1 rigorous imprisonment for one year for the offences under Sections 465 and 471 I.P.C. The lower Court sentenced A-2 to rigorous imprisonment for one year for the offences under Sections 120-B, 465, 471 I.P.C and also sentenced him to rigorous imprisonment for one year and pay fine of Rs.1,000/- for the offence under Section 13(1)(d)(ii)/13(2) of the Act. 2) P.W-1 has got agriculture and has been doing money lending business at Kakinada. He was not paying any income tax. It is alleged by the prosecution that A-1 to A-3 criminally conspired together in pursuance of which A-1 prepared Ex.P-1 authorisation under Section 133-A of the Income Tax Act by forging signature of the Income Tax Officer (P.W-3) and that A-1 to A-3 conducted survey in the house of P.W-1 on 06.02.2000 and that they also took away Exs.P-2 and P-3 pocket size note books forcibly and locked one almyrah by keeping pronotes and other documents inside and took away the almyrah key and that when P.W-1 contacted A-1 and A-2, they demanded bribe of Rs.20,000/- for not charging any income tax and to return the books and that on 12.02.2000 the accused demanded for payment of the said bribe by 19.02.2000 at the house of P.W-1 itself. It is further alleged that A-2 passed on one slip noting down names of A-1 and A-2 and their telephone numbers to P.W-1 to intimate about the bribe. Making the said allegations P.W-1 lodged Ex.P-6 report to the Inspector of Police, C.B.I, Visakhapatnam (P.W-8) who was camping at Kakinada. P.W-8 after getting Ex.P-6 registered as case in R.C. No.6A/2000 arranged trap to the accused at the house of P.W-1 along with mediators. Bu,t it is alleged that A-1 telephoned to P.W-1 to pay the bribe amount by going over to his house and thereupon P.W- 1 along with the trap party proceeded towards A-1’s house and P.W-1 alone went into A-1’s house along with tainted cash of Rs.20,000/- covered by M.O-7 and that when A-1 demanded for the bribe P.W-1 gave tainted cash to A-1 who received the same with his left hand placed the same on his left thigh and that thereafter P.W-1 went out and informed the trap party about payment of the bribe to A-1 and that when P.W-8 along with mediators rushed into A-1’s house and conducted Sodium Carbonate solution test on fingers of both the hands of A-1 and they turned pink and that tainted currency was recovered from the third room of A-1’s house on being shown by A-1. Ex.P-8 is pre-trap mediators’ report prepared in the hotel room of Udipi Venus Lodge, Kakinada where P.W-8 stayed during that time. Ex.P-10 is the post trap mediators’ report prepared at the residence of A-1 on 19.02.2000. During the course of post trap proceedings P.W-8 deputed another Inspector for making search in the Income Tax Office, Kakinada and the said Inspector searched the seat and almyrah of A-1 in that office and seized Exs.P-2 and P-3 pocket note books under the cover of Ex.P-14 search list in the presence of mediators including P.W- 3. The plea of A-2 is one of total denial. A-1 pleaded that P.W-1 came to his house on 19.02.2000 and sat on sofa and went away by leaving M.O-7 tainted currency notes wrapped in Ex.P- 9 on Sofa and left his house even while A-1 was calling P.W-1 and that therefore, A-1 deputed his son D.W-1 to call and bring P.W-1 so that M.O-7 cash can be returned to P.W-1, and in the meanwhile the trap party entered and seized the currency notes. It is further plea of A-1 that when P.W-1 offered M.O-7 currency notes to him, he pushed those currency notes with his hands and did not receive the same and thereafter P.W-1 left the currency notes on the sofa and went away. Thus, at this stage there is no dispute about recovery of M.O-7 tainted currency notes to the extent of Rs.20,000/- from the house of A-1. The question is whether the prosecution was able to prove its case of forgery of Ex.P-1 authorisation and demand of bribe of Rs.20,000/- by A-1 and A-2 after the raid on P.W-1’s house by them and whether A-1 accepted bribe amount in pursuance of his demand from P.W-1. 3) It is evidence of P.W-1 that on 06.02.2000 three persons came to his house at 8.00 A.M representing themselves as Income Tax Inspectors. He identified them as A-1 to A-3. Since A-3 was acquitted by the lower Court and since he is not a party to these appeals, I propose not to discuss about his complicity in the offence in detail. It is evidence of P.W-1 that A-1 represented that he came from Kakinada branch of Income Tax, and that A-2 represented that he came from Rajahmundry branch of Income Tax Department, and that A-1 and A-2 showed search warrant Ex.P-1 stating that the warrant was given to them by the Department to search his house, and that they obtained his signature on Ex.P-1. He says that A-1 and A-2 searched his house including bed room and almyrah and that about one hour after arrival of the accused, his friend P.W-4 came to his house and that P.W-4 was asked to get out and that the accused took away two note books Exs.P-2 and P-3 and one almyrah key M.O-1 and that A-1 and A-2 stated that he (P.W-1) should pay income tax of Rs.2,00,000/-, and that they also gave him two slips bearing addresses and telephone numbers asking him to contact the telephone numbers therein. According to P.W-1, those two slips contained in Ex.P-4 were written by A-1 who gave them to him and that the accused took away Ex.P-1 after showing the same to him and that A-1 and A-2 stated to him that in case he pays Rs.20,000/- as bribe, they would make arrangements for not paying Rs.2,00,000/- to the Government. He further says that he contacted A-2 over the phone number available in Ex.P-4 and that A-2 asked him to contact A-1 also and that accordingly he contacted A-1 on phone and that on 09.02.2000 he contacted A-1 and A-2 by phone and they asked him to get ready with Rs.20,000/- as advised by them earlier. P.W-1 further says that on 12.02.2000 A-1 to A-3 came to his house and they became angry and threatened him as to whether he would go to jail for non-payment of Rs.20,000/- and that they also threatened to report the matter to higher authorities and that ultimately they told him that he should get ready with the amount of Rs.20,000/- by 19.02.2000. According to P.W-1, during the visit on 12.02.2000 A-2 gave him a slip containing phone number to contact him at Rajahmundry Income Tax Office. Ex.P-5 is the said slip. He says that A-1 and A-2 handed over M.O-1 key to A-3 on 12.02.2000 during their visit and that on 16.02.2000 A-2 telephoned to his house in the night reminding demand for Rs.20,000/- and asked him to get ready to pay the amount and that ultimately after consulting his friends he gave Ex.P-6 report to P.W-8 on 18.02.2000 at Udipi Venus Lodge, Kakinada. Visit/raid of A-1 to A-3 on P.W-1’s house on 06.02.2000 is corroborated by P.W-4. P.W-4 is doing real estate business at Kakinada. It is his evidence that on 06.02.2000 at about 9.00 A.M he went to house of P.W-1 and that there were two persons in the house apart from P.W-1. He identified those two persons as A-1 and A-2. He says that one of those two persons asked him to get out and that he walked out of the room and that P.W-1 came to him and informed him that Income Tax people visited his house and that A-1 and A-2 were Income Tax people. P.W-2 identified A-2 as the person who asked him to get away. In cross-examination, P.W-4 deposed that on 06.02.2000 on his own accord he went to P.W-1’s house. He says that between 06.02.2000 and 19.02.2000 there were mutual visits between him and P.W-1 for about 10 to 15 times and that he was informed about the trap and that after 06.02.2000 before 19.02.2000 P.W-1 used to reveal him about Income Tax affairs relating to this case. But, P.W-4 was informed about the trap only after it was accomplished. It is contended by the appellants’ counsel that though P.W-1 in cross-examination stated about he consulting one of his friends by name Rama Rao before giving report to P.W-8, the said Rama Rao is not examined. The name of Rama Rao was given by P.W-1 in his cross-examination. Non-examination of Rama Rao as a witness in this case is not detrimental to the prosecution. It is further contended that if really P.W-4 is a friend of P.W-1, P.W-1 would not have consulted P.W-4 and would not have failed to take advice from P.W-4 for giving Ex.P-6 report to C.B.I Inspector. P.W-4 was examined by the prosecution as he happened to visit P.W-1’s residence when A-1 and A-2 came to P.W-1’s house on 06.02.2000. One cannot expect P.W-1 to reveal about Ex.P-6 report or to consult about giving of such report to C.B.I Inspector beforehand with every person who is friendly with P.W-1. He would only consult that person on whom P.W-1 has got confidence. Failure of P.W-1 to consult P.W-4 before giving Ex.P-6 report, has no bearing in this case. 4) It is contended by the appellants’ counsel that there is delay in registering F.I.R and that the F.I.R reached the Court on 19.02.2000 at 9.15 P.M long after the alleged trap. As per evidence of P.W-8, he handed over Ex.P-6 report to the police constable at Kakinada on 18.02.2000 at 12.00 noon for taking the same to the C.B.I office at Visakhapatnam. Ex.P-26 F.I.R reads that Ex.P-1 was registered in that office on 19.02.2000 at 10.00 A.M. Even though one can reach Visakhapatnam from Kakinada in a vehicle or train by travelling for five hours, it is not as if the police constable to whom P.W-8 entrusted Ex.P-6 was possessing any motor vehicle for travel from Kakinada to Visakhapatnam and it is not as if immediately there was any train available for the police constable to catch the same to go to Visakhapatnam. In cases of this nature, delay cannot be calculated at the rate of hours and minutes in registering F.I.R and in dispatch of F.I.R to the Judge. 5) P.W-1 in cross-examination deposed that on 06.02.2000 A-1 and A-2 did not demand for bribe of Rs.20,000/- when they visited his house. As per P.W-1’s version in Ex.P-6 report, when P.W-1 telephoned to A-2 on 06.02.2000 evening, A-2 suggested to pay Rs.20,000/- as bribe to him and A-1 to avoid troubles. According to P.W-1, A-1 and A-2 demanded for bribe of Rs.20,000/- on 06.02.2000 and 12.02.2000. This version is consistent in Ex.P-6 report as well as in P.W-1’s evidence. 6) It is contended by the appellants’ counsel that there was no telephone number starting with figure ‘3’ at Rajahmundry and that therefore A-2 could not have given Ex.P-5 slip with phone number as 374469 as office phone number of Income Tax Department at Rajahmundry. In Ex.P-6 report itself P.W-1 stated that on 06.02.2000 evening he talked to Bapuji (A-2) by phone to his residence phone number 374469. Though A-2 was working in Rajahmundry Income Tax Office, he was residing at Kakinada. Telephone number 374469 is A-2’s residential telephone number at Kakinada and not his office telephone number at Rajahmundry. Out of the two slips contained in Ex.P- 4 which were stated to have been written and given by A-1 to P.W-1 on 06.02.2000, one slip gives residential address of A-2 at Kakinada along with his telephone number as 374469. Therefore, there cannot be any doubt or dispute of the fact that 374469 is the residential telephone number of A-2 at Kakinada. 7) It is contended by the appellants’ counsel that handing over of Ex.P-5 slip by A-2 on 12.02.2000 was not disclosed by P.W-1 in Ex.P-6 report. No doubt, in Ex.P-6 report, P.W-1 disclosed about handing over of two slips containing addresses and phone numbers of A-1 and A-2 on 06.02.2000. Simply because handing over of Ex.P-5 by A-2 on 12.02.2000 is not disclosed in Ex.P-6 report, Ex.P-5 slip cannot be discarded. After all, Ex.P-6 is a first information report and it is well settled principle of law that it is no encyclopaedia of the prosecution case. It is only a document which moved the investigating agency into action and the investigating agency cannot confine its investigation within the four corners of the contents of Ex.P-6 first information report. The prosecution intended to prove Ex.P- 5 slip as one in the hand writing of A-2 by way of comparison of signatures. P.W-6 is a mediator in Ex.P-22 containing 4 pages of specimen numericals, writings and signature of A-2 obtained by one C.B.I Inspector to his dictation. P.W-6 was working as Income Tax Inspector in the office of Commissioner of Income Tax, Visakhapatnam on 15.05.2000 when Ex.P-22 specimen writings of A-2 were obtained. The appellants’ counsel placing reliance on The Deputy Chief Controller of Imports & Exports, Hyderabad V. Boddula Mallesham[1] of this Court, contended specimen signatures of the accused obtained during investigation without the intervention of the Magistrate are invalid and inadmissible and that therefore the expert’s opinion thereon is of no consequence. In Mohd.Aman V. State of Rajasthan[2] the Supreme Court did not rely upon specimen finger prints of the accused taken by the investigating agency during investigation on the ground that they were not obtained in the presence of Magistrate in accordance with Section 5 of the Identification of Prisoners Act. No reason is given by the prosecuting agency as to why specimen hand writings and numericals of A-2 in this case were not obtained before any Magistrate or the Special Judge for the purpose of comparison with those contained in the disputed document Ex.P-5. Obtaining of specimen hand writings and specimen signatures by the investigating agency in the presence of any mediators other than before a Magistrate is unknown to criminal law and this sort of investigation is never relied upon by any Court. Now, after amendment of the Code of Criminal Procedure introducing Section 311A therein, the procedure in this regard is codified. 8) Even though Ex.P-22 specimen hand writings and specimen numericals is not valid and admissible in evidence, it cannot be said that Ex.P-5 is not proved by the prosecution as that in the hand writing of A-2. P.W-1 to whom Ex.P-5 was handed over after writing the same in his presence, speaks to its authorship. This evidence of P.W-1 is a valid piece of evidence on record. Apart from that, the investigating agency collected Ex.P-21 file from the Income Tax Office, Rajahmundry through the office of Chief Commissioner of Income Tax, Visakhapatnam containing several letters including leave letters in the hand writing of A-2. P.W-5 is the Administrative Officer in the office of the Chief Commissioner of Income Tax, Visakhapatnam in whose jurisdiction Rajahmundry Income Tax office in Eat Godavari District is located. P.W-11 is the then Deputy Commissioner of Income Tax at Rajahmundry. P.W-5 after obtaining Ex.P-21 file containing leave letters of A-2 through P.W-11, transmitted the same to the investigating agency along with Ex.P-20 letter. Even though P.W-11 and P.W-5 had no acquaintance with the letters and contents in Ex.P-21 file, evidence of P.W-11 and P.W-5 proved that Ex.P-21 file with letters etc., was received by the investigating agency through proper official channel. P.W-10 is the Assistant Government Examiner of questioned documents in the laboratory of Government Examiner of questioned documents, Hyderabad. He compared the questioned document Ex.P-5 with specimen hand writings contained in Ex.P-22 as well as standard writings contained in Ex.P-21 file and gave Ex.P-27 report along with Ex.P-28 reasons to the effect that the writings in the questioned document as well as the writings in the specimen hand writings and in the standard hand writings were written by one and the same person. Though comparison of Ex.P-5 questioned document with Ex.P-22 specimen hand writings cannot be relied upon, there can be no legal embargo for relying upon evidence of the expert P.W-10 and his report that the questioned document Ex.P-5 and the writings in Ex.P-21 file were by one and the same person. Thus, not only from the direct evidence of P.W-1 but also from the expert’s evidence of P.W-10, it is proved that Ex.P-5 slip was written by A-2 and was handed over to P.W- 1. Therefore, from the evidence of PW-1, P.W-4 and P.W-10 the prosecution is able to prove that A-2 also participated in the visits to P.W-1’s house on 06.02.2000 and 12.02.2000. 9) During the trap, A-2 was not caught red-handed, as he was not available at the place of trap. As per evidence of P.W-1, the place of handing over of bribe of Rs.20,000/- was initially fixed as P.W-1’s house itself. Therefore, the trap laying officer P.W-8 arranged mediators including a female mediator in the house of P.W-1 so that they can witness the demand as well as the acceptance of bribe as if those mediators were family members or relations of P.W-1. But according to P.W-1, A-1 telephoned to him in the last minute and asked him to go over to A-1’s house for handing over of the bribe amount of Rs.20,000/- to him. Therefore, the raid party consisting of P.W-1, P.W-8 and mediators including P.W-2 proceeded towards A-1’s house. P.Ws 1, 2 and 8 speak to pre-trap proceedings covered by Ex.P- 8 which took place in hotel room of Udipi Venus lodge, Kakinada when Phenolphthalein powder was applied to M.O-7 wad of currency notes totalling Rs.20,000/- and placing them in the pocket of P.W-1. It is evidence of P.W-1 that at about 8.10 A.M, A-1 telephoned to him and asked him to go over to his house taking cash along with him, since A-2 went to Rajahmundry and that accordingly he went to the address given by A-1 on telephone to the house of A-1 along with tainted cash and that the mediators and C.B.I officials followed him. He says that A-1 took him to the room inside the house and asked him whether he brought the money and that he gave the money to A-1 which was in his shirt pocket and that A-1 received the tainted amount with his left hand and kept one bundle on his thigh and counted the amount in another bundle and that when he asked A-1 to return M.O-1 key and Exs.P-2 and P-3 note books, A-1 stated that he would send them through A-3. P.W-1 says that he came out of the houe and informed P.W-8 and the mediators that the accused received the amount, and that immediately all of them including himself went to A-1’s house. It is evidence of P.Ws 1, 2 and 8 that when P.W-8 questioned A-1 about receipt of money from P.W-1, A-1 became perplexed and did not give reply. It is their further evidence that both hand rinses in Sodium Carbonate solution turned pink apart from left side thigh portion of A-1’s pant turning pink when dipped in sodium carbonate solution. It is their evidence that when P.W-8 asked A-1 about the cash of Rs.20,000/-, A-1 picked out the cash from cement shelf in a room wrapped n Ex.P-9 paper. D.W-1 is A-1’s son. It is his evidence that prior to arrival of C.B.I people, he was in the third room of the house and A-1 was sitting on Sofa talking with another person who was sitting in a chair n the same room and that after some time his father (A-1) shouted as ‘Parasuram, Parasuram’ and then he went to the room of his father and found his father proceeding towards gate of their house and that when he followed his father questioning him as to what happened, 6 to 7 persons caught hold of his father and brought his father to the house. It is his further evidence that when the C.B.I officers questioned his father/A-1 as to where he had kept the money, A- 1 stated that P.W-1 placed a bunch of currency notes wrapped in paper and placed it on the Sofa through A-1 objected and refused to receive the same, and that the C.B.I officials recovered the bundle which was wrapped in the paper from the sofa. It is contended by the appellants’ counsel that written statement filed by A-1 in the lower Court during his examination under Section 313 Cr.P.C, it is version of A-1 that when A-1 offered to give bunch of currency notes, A-1 refused to receive the same and pushed the same with his hands and that thereafter P.W-1 left the bunch of currency notes rapped in Ex.A- 9 old newspaper and went away, when A-1 followed him outside his house calling P.W-1. According to Appellants’ counsel, Ex.P- 9 paper/wrapper was brought by P.W-1 himself. It is not the evidence of P.W-1, P.W-2 or P.W-8 that any paper was wrapped to M.O-7 tainted currency notes; and it is not their evidence that any wrapper like Ex.P-9 was also tainted with phenolphthalein powder along with M.O-7 currency notes. If M.O-7 currency notes were wrapped in Ex.A-9 paper and when there is no evidence of Ex.A-9 wrapper being also tainted with Phenolphthalein powder, even if A-1 pushed away currency notes wrapped in Ex.A-9 when offered by P.W-1, A-1’s hands would not have been tainted with the powder in order to make his hand rinses pink in sodium carbonate solution. From the evidence of P.Ws 1, 2 and 8, it is evident that after receiving M.O-7 tainted cash by A-1, he counted the currency notes by keeping them on his left thigh and then went inside the house, wrapped the currency notes in a paper and kept them in cement shelf. According to P.W-8, when questioned, A-1 lead them to the third room and handed over M.O-7 wrapped in Ex.P-9 by taking the same from open cement shelf. From the above evidence, I have no hesitation to come to the conclusion that A-1 on 19.02.2000 demanded and accepted M.O-7 tainted cash of Rs.20,000/- as bribe from P.W-1. The explanation given by A-1 during the course of trial in the lower Court is neither substantiated nor acceptable. 10) According P.W-8, during the course of Ex.P-10 post trap proceedings, A-3 came to the house of A-1 and handed over M.O-1 key. P.W-8 deputed another inspector from C.B.I to the Income Tax Office at Kakinada. P.W-3 was the then Income Tax Officer, Ward No.3, Kakinada. It is his signature which is stated to have been forged in Ex.P-1 authorisation under Section