IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO.185 OF 2002 Between: M. K. Khursheed Ali, I/c.D.C.T.O. Ashok Nagar Circle, Hyderabad. - - - Accused/Appellant. AND The State of A.P. Rep. by P.P. of Anti Corruption Bureau, High Court of A.P., Hyderabad. - - - Complainant/Respondent. The Court made the following: THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO.185 OF 2002 JUDGMENT This appeal is directed against the judgment, dated 01-02-2002, passed in C.C. No. 10 of 1998 by the Principal Special Judge for SPE and ACB Cases, Hyderabad (Hereinafter referred to as ‘learned Special Judge’), whereby and whereunder the appellant herein was found guilty for the offences punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption Act 1988 (for short ‘the Act’), and was sentenced to suffer Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/-, in default to suffer Rigorous Imprisonment for three months for the offence under Section 7 of Act and he was also sentenced to suffer Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/-, in default to suffer Rigorous Imprisonment for three months for the offence under Section 13(1)(d) of the Act. Both the sentences were ordered to be run concurrently. 2) The brief facts of the case are as follows. The appellant/accused was working as in charge DCTO, Ashoknagar Circle, Hyderabad, as such he is a public servant within the meaning of Section 2(c)(i) of the Act. The defacto complainant (hereinafter referred to as PW.1) was a practicing advocate and he was concentrating his practice on Taxation side. PW.1 was representing M/s. Nagarjuna Marketing and Exports Limited, a public limited company (hereinafter referred to as ‘Company’), which was registered with the Assistant Commercial Tax Officer, Ashok Nagar. 3) PW.1 lodged a complaint in Ex.P1 to the Deputy Superintendent of Police, Anti Corruption Bureau, City Range, Hyderabad, alleging that his client M/s. Nagarjuna Marketing and Exports Limited informed him that it was in need of way bills and that he went to the office of the accused and placed a requisition form for way bills on 11-10-1996 and also submitted monthly returns pertaining to the period from April 1996 to September 1996. It is alleged that the accused stated that there is delay in submission of returns and therefore the Company is liable to pay penalty of Rs.3,000/-. It is further alleged that the accused further informed that if bribe of Rs.1,000/- is paid, he would see that penalty proceedings are waived off and that the accused was reluctant to release the way bills. Stating that he was not willing to pay the bribe amount, PW.1 lodged a complaint on 16-10-1996. Basing upon which, a case in Crime No.22/ACB-CR/96, under Sections 7, 11, 13(2) read with 13(1)(d) of the Act, was registered. 4) PW.9, A. Venkata Ratnam was working as Inspector of Police, ACB, City Range-II, during the relevant period. He states that he assisted Sri U.V.S. Raju, DSP, ACB, in this case. According to PW.9, on 16-10-1996 at about 8.00 a.m., Sri U.V. S. Raju, DSP, received Ex.P1 from PW.1 and asked PW.1 to come to their office at 3.30 p.m. After making discrete enquiries about the contents of Ex.P1, the case was registered and FIR was issued. Since U.V.S. Raju, DSP, was on deputation to United Nations Peace Mission, he could not be examined. According to PW.9, mediators were summoned and necessary instructions were given to PWs.1 to 3, and after PW.1 producing Rs.1,000/- i.e., ten currency notes of Rs.100/- denominations, marked as MO.1, the usual procedure was explained and currency note numbers were noted and they were tainted with phenolphthalein powder, and after explaining the significance of the phenolphthalein test to the witnesses and after demonstration of the test, the DSP instructed PW.1 to pay the amount to the accused only on demand, and after the accused accepted the amount to give signal by wiping his face with hand kerchief. The DSP also instructed PW.2 to accompany PW.1. Accordingly, PWs.1 and 2 went to the office of the accused and when PW.1 requested the accused to release the way bills in favour of the Company, the accused demanded bribe amount of Rs.1,000/- and that PW.1 took out the currency notes and handed over the same to the accused. The accused received the same with his left hand and kept it in his left side pant pocket. Then PW.1 came out of the room of the accused and gave pre-arranged signal. On receipt of the signal, the DSP rushed to the Accused Officer and introduced himself and then got prepared two samples of Sodium Carbonate Solution and asked the accused to rinse his fingers and when accused had rinsed his fingers, the sodium carbonate solution turned to pink colour. Then, the DSP secured the services of photographer and had taken the photographs of the scene of offence. One Muzubur Rehman Khan, the mediator, collected the currency notes which were thrown by the accused on the floor and the currency notes were verified and their numbers tallied with the note numbers noted in the first mediators report Ex.P4. The inner flap of the left side pant pocket of the accused was subjected to Sodium Carbonate Solution test and the result was positive. Rough sketch of scene of offence was prepared and Exs.P5 to P8 were seized. 5) The accused gave spot explanation. The accused, in his spot explanation, had categorically stated that he received Rs.1,000/- towards penalty but not as bribe. He further stated that since the receipt book was with one Rajendra Prasad he could not issue the receipt. He had also stated that he had not thrown the amount on the floor intentionally but the notes fell on the floor accidentally. He had also stated to DSP that PW.1 promised to bring the balance penalty amount of Rs.1500/- and on that condition only he had accepted Rs.1,000/- from PW.1. 6) All the above referred details were incorporated in the second mediators report Ex.P9 and the signatures of the mediators were obtained. Then, PW.11 Inspector of Police, A.C.B. City Range, Hyderabad, having received CD file, examined PWs. 1, 2 and 4 to 8 and after obtaining sanction orders and after completing investigation, laid charge sheet against the accused. 7) The prosecution, in order to prove its case, has examined PWs. 1 to 11 and got marked Ex.s P-1 to P-13 and Mos. 1 to 8. On behalf of the accused DWs. 1 and 2 were examined and Ex.s D-1 to D-3 were marked. 8) The learned Special Judge believed the prosecution case and convicted the accused as stated supra. Aggrieved by the same, this present Appeal has been filed. 9) The learned counsel for Accused Sri C. Praveen Kumar, submitted that PW.1 who was practicing as an advocate had developed grudge against the accused and that he had falsely implicated the accused in this case. It is further submitted that PW.1 himself admitted that he lodged a complaint against the accused in Ex.D-3 on 02-08-1996 and since there was no expected result he had falsely implicated the accused in this case. It is further submitted that when the accused knows that PW.1 had lodged a complaint against him alleging that the accused was indulging in corrupt practices, it is most improbable to say that the accused would demand bribe from such person. It is further argued that the learned Special Judge failed to consider the improbabilities and inconsistencies and material contradictions in the evidence of the prosecution. It is further submitted that there is no whisper of alleged demand on 14th and 15th October, 1996 in Ex.P1. It is further argued that admittedly the accused had issued show cause notice directing the assessee to pay the penalty and in such circumstances, the appellate authority alone had the authority to reduce the penalty amount and that the accused had no authority to do any official favour to the assessee, whom PW.1 was representing. It is further argued that the accused had given satisfactory explanation at the time of trap that PW.1 had given Rs.1,000/- as a part of penalty and promised to bring the remaining amount of Rs.1,500/- and when the currency notes were about to fly due to the air of the fan which was on, he had kept the said amount in his pocket and in the meanwhile the ACB Officials entered into his room. It is also argued that PW.1 had not paid the costs for issuing waybills and in those circumstances the waybills could not have been issued without payment of costs. It is also submitted that all the surrounding circumstances were not taken into consideration. It is also argued that PW.2 is the close friend of PW.1 and both of them were jointly practicing and both of them were highly interested and that this fact was also not taken into consideration. 10) The learned special Public Prosecutor for ACB cases argued that the version of Accused is not probable. It is submitted that PW.1 gave requisition for waybills and that when the accused was not issuing waybills and demanded bribe, PW.1 approached the ACB Officials. It is further submitted that a show cause notice was issued to the assessee to submit the explanation as to why penalty should not be imposed within seven days and that when seven days time was given for submitting explanation to the show cause notice, there was no need for PW.1 to pay the penalty even before passing any final orders. It is further argued that since no explanation was submitted by the assessee and final orders were not passed on the show cause notice, there was no occasion for collecting the penalty from PW.1. It is further argued that since the amount does not relate to penalty, the version of the accused cannot be accepted. It is also argued that the accused could have condoned the delay without imposition of penalty and therefore it is improbable to say that the accused accepted part of penalty even before passing any final orders imposing any penalty. It is also argued that the accused had thrown away the currency notes on the floor by seeing the ACB officials and this itself shows the conduct of the accused. It is also argued that the evidence of PW.6 Attender of C.T.O. office shows that the accused had sent him to bring tea for PW.s 1 and 2, which shows that they were not on inimical terms. It is also argued that entries in Ex.P5 receipt book were not filled up, therefore there was no chance for the accused to issue receipt to PW.1. It is argued that the evidence of PWs. 1 and 2 proves the demand and acceptance of bribe amount by the accused and the learned Special Judge has given expert reasons in support of his judgment. 11) The only point that arises for consideration is : Whether the prosecution is able to bring home the guilt of the accused? 12) Enmity may be two fold. Enmity may be the reason for committing a crime and it may also be a reason for implicating any person in a false criminal case. It is the duty of the Court to examine the nature of the evidence, the relationship of the witnesses and the relationship between the witnesses and the accused. Wherein a case it appears that the witnesses are highly interested or inimical towards the accused, the Court must be very careful in analyzing the evidence. In a case where it appears that witnesses are only reliable and trustworthy, their evidence must be accepted but wherein a case, it appears that evidence is not only reliable and that there are improvements and material contradictions in the evidence of interested witnesses, it is not safe to accept their evidence on its face value. A critical examination of the evidence of such witnesses has to be done before accepting the same. 13) In the case on hand, there are some peculiar circumstances. Admittedly, PW.1 is a practicing advocate. He is the author of book titled as “Sales Tax Ready Reckoner – Application in Andhra Pradesh”. The specific case of PW.1 is that certificate of registration under APGST/CST Acts were granted to his clients M/s. Nagarjuna Marketing Exports Limited and that he filed five applications for waybills and submitted returns on behalf of the said Company and that when he approached the accused and placed requisition for waybills on 11-10-1996, the accused informed him that there was delay in submission of returns and that the assessee was liable to pay the penalty of Rs.3,000/- and that if an amount of Rs.1,000/- is paid, he would see that the penalty proceedings are waived off. As PW.1 was not inclined to pay the amount, he approached the ACB officials. The specific case of the accused is that he had pointed out certain mistakes in the book written by PW.1 and for the said reason the officials of Commercial Tax Department did not purchase the said book and since then PW.1 developed grudge against him. It is also his specific case that PW.1 lodged a complaint against him on 02-08- 1996 to the Deputy Commissioner (Commercial Taxes) Secunderabad, making serious allegations against him, and the enquiry was pending, and in the meanwhile PW.1 approached the ACB officials and falsely implicated him in this case. It is also his case that when PW.1 requested him to accept Rs.1,000/- as part of penalty for delayed submission of returns and when he refused to accept Rs.1,000/- and insisted to pay total penalty amount of Rs.2,500/-, PW.1 went out promising to bring the remaining amount of Rs.1,500/-, and in the meanwhile, ACB Officials entered into his room. Thus, the specific case of accused is that PW.1 was inimical towards him and that the amount received by him was part of penalty to be paid by PW.1 on behalf of his client. It has to be seen that laying of trap, recovery of Rs.1,000/- from the accused and the accused rinsing his fingers in the sodium carbonate solution, the changing of its colour and the recovery of certain documents from the office of the accused etc., are not in dispute. Therefore, there is no need to discuss in detail about the same. 14) The main dispute is that whether the amount paid by PW.1 represents part of penalty and whether the accused accepted Rs.1,000/- as bribe amount and whether the circumstances show that there is any possibility of false implication of accused in this case? 15) In the above circumstances, we have to examine whether the version of prosecution i.e. evidence of PWs. 1 and 2 is reliable and whether it inspires confidence and whether the accused can be convicted on such evidence. It is not in dispute that PW.1 lodged a complaint against the accused on 02-08-1996 to the Deputy Commissioner (Commercial Taxes) Secunderabad. PW.1 himself admitted that he had sent Ex.D3 complaint alleging that the accused approached three of his clients and asked them to be in direct contact with him and further told them that nothing would be done by PW.1. He has also admitted that he had mentioned in Ex.D3 complaint that there was tussle between himself and the accused officer. Ex.D3 shows that PW.1 had made serious allegations against the accused, alleging that he was contacting his clients and telling them against him. It is also mentioned that the accused was indulging in corrupt practices. Admittedly, PW.1 did not mention the names of his three clients in Ex.D3. DW.1 says that since PW.1 did not mention the names of those three clients, it was very difficult to enquire into the petition. DW.1 further says that however he has issued notice to PW.1 and no action was taken on Ex.D3 complaint till 16-10-1996 i.e. till the date of laying trap. The contents of Ex.D3 and admissions made by PW.1 categorically go to show that PW.1 had developed grudge against the accused. It might be for the reason that accused was trying to influence his clients or for the reason that the accused found faults in the book written by PW.1. Whatever it may be, it is crystal clear that PW.1 had developed grudge against the accused. It is also an admitted fact that even before lodging a complaint in Ex.D3, there was a tussle between PW.1 and the accused while PW.1 was working as A.C.T.O. Begumpet, Secunderabad. It appears that there was a prolonged enmity between PW.1 and the accused. Therefore, the possibility of PW.1 to implicate the accused in a false case to take revenge cannot be ruled out. So, in the above background, we have to carefully analyze the evidence on record. It has to be seen that PW.1 had taken PW.2 as his accompanying witness. PW.2 is no other than the colleague of PW.1. PW.2 is not only the colleague of PW.2 but they are jointly practicing, when both of them are jointly practicing. It is crystal clear that PW.2 cannot be treated as an independent witness and he was just henchman of PW.1. Thus, it is clear that both PW.s 1 and 2 are highly interested witnesses. 16) Now, it has to be seen whether the evidence of PW.1 is probable and believable in the surrounding circumstances of the case? 17) As seen from the evidence of PW.1, he was working as Advocate-cum-Auditor for M/s. Nagarjuna Marketing and Exports Limited Company and that on 11-10-1996 at about 03-45 p.m. he approached the accused who was working as D.C.TO. and submitted a requisition for supply of monthly returns pertaining to Nagarjuna Marketing and Exports Limited Company for the period from April, 1996 to September, 1996. He says that he has also filed an application for waybills. His specific case is that after seeing the returns, the accused told him that there was delay in submission of returns and therefore the said Company is liable to pay penalty of Rs.3,000/-. The specific allegation against the accused is that he told to PW.1 that in case Rs.1,000/- is paid to him as bribe he would waive off the penalty. His specific case is that on 15-10-1996, he had also mentioned in his complaint that monthly returns have to be accepted before issuing waybills. PW.1 further admitted that the requisition for waybills and monthly returns were submitted by Sri Sundaram, Managing Director of M/s. Nagarjuna Marketing and Exports Limited Company and not by himself. Thus, the initial version of PW.1 that he filed returns and applications for waybills becomes false. The specific version of PW.1 is that the said Company was in need of waybills and that the accused was demanding a bribe of Rs.1,000/- to waive off the penalty. PW.1 himself admitted that there is nothing on record to show the payment of costs of waybills. Admittedly, payment of costs of waybills is necessary for issuing waybills. PW.1 further admitted that the returns, marked as Ex.P8, do not show that he submitted them. However, he volunteered that he submitted those returns with a covering letter. When further cross-examined, he had admitted that the said covering letter is not available in the file. Admittedly, Exs.P1 to P3, Ex.P7 and Ex.P8 files shown to him do not contain the alleged covering letter and the requisition given for waybills. Thus, admittedly, there is neither any covering letter nor any documentary evidence showing the payment of costs for waybills. When costs for waybills were not paid, the question of issuing waybills does not arise. If at all the company was in need of waybills and if at all PW.1 had approached for waybills, he would have paid the costs of waybills, because unless costs of waybills are paid, the question of issuing waybills does not arise. Thus, the version of PW.1 is not consistent with regard to the statement of monthly returns and application for waybills. 18) The further case of PW.1 is that the accused demanded bribe on 11-10-1996 when he filed monthly returns and a requisition for waybills. Admittedly it is Sri Sundaram, Managing Director of the M/s. Nagarjuna Marketing and Exports Limited Company who filed a requisition for waybills and monthly returns. Admittedly, Ex.P11 is not signed by PW.1 and it does not show that PW.1 himself presented Ex.P11. PW.1 himself admitted that monthly returns and waybills were filed by Sri Sundaram Managing Director of the company. Thus, the version of PW.1 that the accused demanded bribe amount on 11-10- 1996 has no basis and cannot be believed. The further case of PW.1 is that on 15-10-1996 at about 03-00 p.m. he visited the office of the accused and requested to release the waybills and the accused again demanded an amount of Rs.1,000/-, and that his further case is that on the same day evening at about 10-00 p.m. the accused came to his house and again demanded the amount of Rs.1,000/-. First of all, there is no reference about the demand made by the accused on 15-10-1996 either at his office or at the residence of PW.1 in Ex.P1. If at all the accused had demanded on 15-10-1996 in his office and also at the house of PW.1, PW.1 would have certainly mentioned about the same in Ex.P1. Thus, there is no satisfactory evidence in this case to show that the accused demanded bribe amount of Rs.1,000/- either on 11-10-1996 or on 15-10-1996. It is also an admitted fact that the accused issued show cause notice in Ex.P8 (a) directing to pay the penalty of Rs.3,000/- i.e. Rs.500/- p.m. for each month from April, 1996 to September, 1996 under Section 13 (a) of A.P.G.S.T Act, 1957. Of course 7 days time was given to M/s. Nagarjuna Marketing and Exports Company to submit its explanation. Admittedly, Ex.P8 (a) was received by PW.8 on 14-10-1996. PW.1 did not whisper about Ex.P8 (a) either in his Ex.P1 complaint dated 16-10- 1996 or in his chief-examination. The conduct of PW.1 in not referring to Ex.P8 (a) in Ex.P1 shows that he did not approach the ACB officials with clean hands. 19) There are certain other material contradictions in the evidence of PWs 1 and 2. According to PW.1, at about 02-00 p.m. on 16-10- 1996 i.e. after lodging Ex.P1 complaint to ACB officials, he approached PW.2. But, according to PW.2, PW.1 went to his office around 10-00 a.m. and informed that he would again approach him at about 02-00 p.m. and that they had to go to ACB office. According to PW.1, they went to the ACB office on his own vehicle but, according to PW.2 they all went in the jeep of ACB officials. 20) It is the case of PW.1 that after entering the office of the accused he requested the accused to return the waybills and then the accused demanded bribe of Rs.1,000/- and then he handed over MO.1 currency notes to the accused and that the accused received the same with his left hand and kept it in his left side pant pocket. The specific case of the accused is that on 16-10-1996, PW.1 came to his office along with PW.2 and requested him to take Rs.1,000/- as penalty for the delayed submission of returns as against the proposed penalty amount of Rs.2,500/- as per Ex.P8(a) show cause notice. The specific case of the accused is that he refused to accept the same as penalty as it was short of the penalty amount of Rs.2,500/- and then PW.1, keeping the said currency notes on his table, left the room saying that he would bring the balance amount of Rs.1,500/-. It is also his case that, in the meanwhile, he called PW.4 and asked him to bring the receipt book and that as the currency notes were flying due to