THE HON'BLE SRI JUSTICE N. RAVISHANKAR CRIMINAL APPEAL No.2550 of 2004 JUDGMENT: This appeal is by the State from acquittal in an ACB trap case. The respondent (public servant) was tried on two charges in C.C.No.5 of 2000 on the file of the Court of the Additional Special Judge for SPE & ACB Cases –cum- V Additional Chief Judge, City Civil Court, Hyderabad (trial court). The first is under Section 7 and the second which is connected to the first one is under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act), and both were based on allegations of bribery and trap. 2. The trial court after considering the evidence by its judgment dated 31.12.2003, rejected the prosecution case and acquitted the accused and that is now questioned in this appeal. As the whole matter is now at large before this Court, it is necessary to consider the same in detail. 3. According to the prosecution, P.W.1 Khaja Moinuddin who is the de facto complainant and who is also used as a decoy for the trap was at the relevant time working as a post man in the post office at Banjara Hills, Hyderabad. The accused was at the relevant time working as Sub-Registrar, Maheswaram, R.R. District, in the Registration Department of the Government of Andhra Pradesh and was admittedly a public servant within the meaning of the Act. 4. P.W.1’s wife Naseer Begum and her brother and sister got about Acs.10-34 gts of land in Sy.No.319/9 of Tuppuguda village within the jurisdiction of the Sub-Registrar, Maheswaram. They executed an agreement of sale in respect of that land in favour of one Ashok Raj and one Ravindernath in January 1993 for the purpose of converting the said land into plots and selling them to third parties. Thereafter some disputes arose between them and consequently P.W.1’s wife and her sister and brother cancelled that agreement in May 1997 and even after the cancellation of that agreement the aforesaid Ashok Raj and Ravindernath are said to have sold away some of the plots under registered sale deeds. 5. The version of the prosecution is to ascertain as to what were the plots that were sold by Ashok Raj and Ravindernath, P.W.1 and his brother-in-law wanted to get certified copies of five sale deeds. It is not necessary to go into the other details of the disputes between P.W.1’s wife and her other relatives with the aforesaid two gentlemen but the prosecution case relating to charges starts from this point. 6. It is stated that on 09.12.1998 P.W.1 went to the office of the Sub-Registrar, Maheswaram, and met the accused and filed applications on that date for getting certified copies of the required five sale deeds which were registered as document Nos.4087/98 to 4091/98. It is further stated that on the said date when the accused told him to see him again on 16.12.1998 and accordingly P.W.1 once again went to the Sub-Registrar’s office and met the accused on 16.12.1998 and it was on that date, it is alleged, the accused demanded P.W.1 to pay him a bribe of Rs.500/- for giving certified copies and told P.W.1 to pay the amount within one or two days and take the copies. 7. As P.W.1, according to the prosecution, was not willing to pay the bribe, he went to the ACB office at Hyderabad on 18.12.1998 and gave Ex.P.1 complaint and a case was accordingly registered on 18.12.1998 by P.W.7 G.Sudheer Babu the then Deputy Superintendent of Police (DSP), ACB, Hyderabad and he immediately made arrangements to lay the trap on that date itself i.e. 18.12.1998. 8. According to the prosecution, P.W.7 the DSP took services of P.W.3 V.B.Chowdary, the then Agricultural Officer in the Mandal Agricultural Office, Ameerpet and one H.M.Natvi, a senior assistant of the said office as mediators for laying the trap and after enlightening P.W.1 and the above mediators about the importance of sodium carbonate solution phenolphthalein powder test, applied phenolphthalein powder to the bribe amount of Rs.500/- i.e. consisting ten notes of Rs.50/- denomination and instructed P.W.1 to go to the office of the Sub-Registrar and give the bribe amount to him on his demand. It should be mentioned here that P.W.2 Naseer Mohammed who is a relative of P.W.1 and who happened to be with P.W.1 was instructed by the DSP to accompany P.W.1 for giving the bribe. 9. It is then stated that accordingly P.Ws.1 and 2 went to the office of the accused and on his demand P.W.1 paid the amount and after receiving pre-arranged signal from P.W.2, the trap party consisting of the mediators and the DSP entered the office room of the accused and seized the tainted money from the drawer of the table of the accused after it was shown to them by him. It is also stated that even before the amount was recovered the sodium carbonate solution test conducted on the right hand of the accused proved positive. 10. The prosecution plea therefore is that the above circumstances plus the subsequent investigation disclosed that the accused is guilty of both the charges. The plea of the accused was one of denial. His defence is that P.W.1 applied for copies of the five sale deeds on 11.12.1998 and took delivery of the same on 14.12.1998 and therefore there was no occasion for P.W.1 to meet him on 09.12.1998 or 16.12.1998 on which date demand is said to have been made for bribe and that he did not also receive any bribe on 18.12.1998. His version is that when P.W.1 kept the amount on table he pushed it away but P.W.1 put it in his table drawer and in the meanwhile the DSP and the mediators entered the office room and gave a false picture of catching him red handed in the trap, but he is not guilty of any offence. 11. The details of the evidence let in by the prosecution and the documentary evidence relied upon by the accused are all mentioned in the appendix of evidence given at the foot of the trial court judgment. Ex.P.5 is the first mediatornama dated 18.12.1998 drafted covering the pre-trap proceedings and Ex.P.16 is the second mediatornama of the even date drafted covering the post-trap proceedings. Exs.D.10 to D.14 are copy applications which are said to have been made by P.W.1 for copies of five sale deeds and Ex.D.15 is office copy of receipt dated 11.12.1998 for the fee paid by him. Exs.P.10 to P.14 are said to be the certified copies of five documents/sale deeds which are said to have been obtained by P.W.1 from the accused on the date of trap after paying the bribe amount to him and they are said to have been seized by P.W.7 the DSP in the post-trap proceedings. D.W.1 K.Sudhakar Reddy has been examined on behalf of the accused. 12. It has now to be seen whether the evidence on record establishes the charges brought against the accused beyond all reasonable doubt or is it insufficient to sustain the charges brought against him as held by the trial court. This is the point in this appeal. 13. It is now well settled that in a charge brought under Section 7 of the Act and also the connected charge under Section 13(1)(d)(i) of the Act based on the allegations relating to bribery and trap, both demand and acceptance of the bribe should be proved by the prosecution beyond doubt. The question of acceptance of bribe money of Rs.500/- which is marked as M.O.3 is first taken up. P.W.1 who is the de facto complainant did not support the prosecution version regarding the demand and acceptance of bribe money by the accused on the date of trap. It would be better to reproduce what P.W.1 has stated after he went to the office of the accused by about 2.00 p.m. on the date of the trap i.e. 18.12.1998. His evidence reads as follows. “… … … We left the ACB office at about 1 P.M. By 2 P.M. we reached the Sub-registrar office. At that time there was rush in the Sub-registrar office we waited for some time. After some time myself and Naseer Mohammed went inside the Sub-registrar office. We found one person talking with the AO. After that person came out from the room when I entered the room, Naseer Mohammed was standing at the door. I asked the AO whether the documents are ready. AO replied that the copies were ready. Then AO obtained my signature on a some note book. Then the AO gave the receipt and documents to me. Then I kept the tainted currency notes on the table of the AO. Then the AO pushed the cash below the table. Then I picked up the cash and kept the same in the table drawer of the AO. Then I was coming from the AO room along with documents and then the DSP and the trap party entered the AO’s room. Then myself and Naseer Mohammed were standing outside. … … …” 14. P.W.2 Naseer Mohammed who is the witness who accompanied P.W.1 also confirmed the above version of P.W.1 but stated that soon after P.W.1 kept the money in the table drawer of the accused he came out and gave the pre-arranged signal following which the trap party entered the office room of the accused. Thus from the version of P.Ws.1 and 2 regarding what transpired during the trap proceedings in the office of the accused, it is clear that the accused did not demand the amount and receive it and on the other hand when the amount was kept on the table of the accused by P.W.1, the accused pushed it away and it fell down on the floor and P.W.1 lifted it and kept it in the table drawer which was kept open. This version was denied by P.W.3 the mediator. In any event what transpires is that accused did not receive the money according to P.W.1 and P.W.2. The accused sought to explain the result of the sodium carbonate solution test which proved positive on his right hand by his plea that he pushed the amount away when it was kept on the table and in that process his right hand was tainted with the phenolphthalein power. This assumes significance in the matter. 15. Sri Ramachandra Reddy the Special Public Prosecutor for the ACB argued that the amount was recovered according to P.W.3 the mediator and P.W.7 the DSP from the table drawer of the accused and that this is not a case of recovery when the amount was kept on the table and therefore one cannot expect the accused to give liberty to P.W.1 to keep the amount in the table drawer and this itself would show that P.W.1 paid the amount and the accused received it as bribe and therefore the charges brought against the accused should be upheld though P.W.1 did not support demand and payment on the date of trap. The contention is P.W.1 deliberately spoke falsehood to help the accused. It is true that this argument of Sri Ramachandra Reddy no doubt sounds forceful as the amount was recovered from the table drawer which is not disputed. However its acceptance or otherwise must be judged having regard to the evidence relating to the demand for bribe and the date of the filing of copy applications for the documents and the date of their delivery. The said aspects are now proposed to be considered. 16. Regarding the demand for bribe, it is the version of P.W.1 that the accused made his first demand for the bribe of Rs.500/- only on 16.12.1998 and told him to get the amount and pay him within one or two days. It is on this version of P.W.1 that trap was laid on 18.12.1998 which falls two days after 16.12.1998. Here it should be noted that it is the version of P.W.1 that he first went to the office of the accused on 09.12.1998 and made applications for certified copies of the five sale deeds/ documents which are already mentioned supra. Exs.D.10 to D.14 are the applications and they are described as search applications as P.W.1 was not a party to the documents and these search applications bear date 11.12.1998. Even Ex.D.15 receipt which purports to have been issued by the accused for collection of the fees of Rs.210/- for five documents i.e. @ Rs.42/- per each document also bears the date 11.12.1998. Further the particulars of Exs.D.10 to D.14 are entered in Ex.D.16 Account ‘D’ register which is the register of search applications which are entered in it. There is no dispute about Exs.D.10 to D.16 and their dates. 17. Thus what should be noted is that Exs.D.10 to D.15 bear the date 11.12.1998 and therefore it follows that the said applications must have been made on 11.12.1998 and they belie the version of P.W.1 that he made applications for copies of the said documents in question on 09.12.1998 when he went to the office of the Sub- Registrar. To explain away this minus point in his evidence, P.W.1 stated that he went to the Sub-Registrar’s office and met the accused on 09.12.1998 and applied for copies before the Sub- Registrar i.e. the accused on 09.12.1998 itself but accused has put the date 11.12.1998. It is difficult to accept this version of P.W.1 as there is only the evidence of P.W.1 to support his above version and his evidence does not find corroboration from any other evidence in the case. Thus the version of P.W.1 that he went to the office of the accused on 09.12.1998 and met him and applied for copies on that date becomes unreliable and in any event doubtful. It has now to be considered whether P.W.1’s version that he met the accused on 16.12.1998 can be accepted as reliable and this question has to be assessed having regard to the date of delivery of the certified copies of above five documents. 18. Then coming to the date of delivery of certified copies of the five documents/sale deeds in question, the evidence of P.W.4 K.L.N.Reddy who was the then Assistant District Registrar in the office of the District Registrar at Hyderabad and who was examined by the prosecution itself assumes importance. He was examined to speak about the procedure prescribed for applying for certified copies of the documents and also regarding the procedure adopted in the Sub-Registrar’s office for delivery of documents and the entries to be made about the same in the relevant register. His answers in his cross-examination made on behalf of the accused are important and they read as follows: “Ex.P.20 is the account G register of the office of the Sub Registrar, Maheswaram, Ranga Reddy district. On 11-12- 1998 as per the G register Ex.P.20 five applications for certified copies have been received which are D.10 to D.14 in the office and they were made ready on the same day and they were not returned to the parties on the same and dhown as unclaimed certified copies at column No.12 of Ex.P.20 G register dt.11-12-98. The said endorsement of unclaimed will continue to be recorded on subsequent dates till they are claimed by the concerned parties. These documents have been shown returned on 14-12-98 in that register. 12th December 1998 is shown as clean and green day and 13th December 1998 is Sunday and the same is endorsed in the same register “G”.” 19. In his chief examination, P.W.1 stated that the Account ‘G’ register maintained in the Sub-Registrar’s office will contain particulars of applications received for certified copies of documents, date of preparation of certified copies and date of delivery of such copies. This Account ‘G’ register is marked as Ex.P.20 from prosecution side. Now P.W.4 in his cross- examination stated that Exs.D.10 to D.14 copy applications would show that they are dated 11.12.1998 i.e. they were applied for on 11.12.1998 and copies were also made ready by 11.12.1998 itself and the relevant columns in Ex.P.20 would show that the copies of documents were delivered on 14.12.1998 as no work could go on 12.12.1998 and 13.12.1998. Sri Ramachandra Reddy invited my attention to entries made from 01.12.1998 onwards in Ex.P.20 register and pointed out that copies of all five sale deeds were shown as undelivered even as on 18.12.1998 and therefore it must be held that P.W.1 met the accused on 18.12.1998 and took delivery of the copies of sale deeds on that day after paying bribe to the accused. 20. It may be noted that columns 10, 11 and 12 in Ex.P.20 register deal with certified copies of documents applied for, while columns 13, 14 and 15 in Ex.P.20 relate to encumbrance certificates. Columns 10, 11 and 12 do not show that any copies were lying unclaimed as on 18.12.1998 or 17.12.1998 or 16.12.1998 or 15.12.1998 or 14.12.1998. Column 12 shows five copies remained unclaimed on 11.12.1998 which is the date of Exs.D.10 to D.14 copy applications and P.W.4 says that they were made ready by 11.12.1998 itself. P.W.4 stated that copies of the documents applied for through Exs.D.10 to D.14 must have been delivered on 14.12.1998 itself as column 12 was kept blank for that day. P.W.4 stated that Exs.D.10 to D.14 bear the initials of Sub- Registrar and Ex.D.15 receipt for Rs.210/- signed by Sub- Registrar would show the probable date of delivery is on 17.12.1998, but he says copies were delivered on 14.12.1998 as per Ex.P.20 register. P.W.4’s version is that whenever copies are delivered on any given day the column 12 relating to unclaimed documents will be kept blank and copies of documents covered by Exs.D.10 to D.14 are delivered on 14.12.1998 as per Ex.P.20 entries as that column was left blank. 21. It is clear that P.W.7 the DSP did not verify the position with regard to the above entries in Ex.P.20 and vis-à-vis claims of P.W.1 and he did not gather any evidence and place before the trial court to show that the above entries do not reflect the correct position though Ex.P.20 is a public register. In other words, the DSP could not gather any evidence to point out that the accused could have manipulated the entries in Ex.P.20 to make the case of P.W.1 doubtful and to bolster up his defence and that he retained copies till 18.12.1998 despite above entries and delivered them on 18.12.1998. The above documentary evidence would thus show that P.W.1 could not have gone to the office of the Sub-Registrar on 09.12.1998, and that he applied for copies of the documents on 11.12.1998 and the copies were already delivered to him on 14.12.1998 as borne out by Ex.P.20 register and the evidence of P.W.4 as contended by the learned counsel for accused. Thus P.W.1’s version that he met the accused on 16.12.1998 also becomes doubtful as there could not have been any need for him to meet the accused on that date. 22. There is another aspect also which weighs against the prosecution. It may be noted that P.W.3 the mediator in his cross- examination admitted that in Ex.P.5 first mediatornama covering the pre-trap proceedings nothing is mentioned in it that when the bribe money was kept in his shirt pocket for being given to the accused, his other pockets were not searched to ensure that he was not possessing any other papers. This also assumes importance even though the DSP denied this aspect. Added to this, P.W.7 the DSP in his cross-examination admitted that P.W.1 did not produce any receipt before him for payment of the sum of Rs.210/- towards the fee for the five documents which must have been given to him. He also did not verify as to when P.W.1 made copy applications for sale deeds in question and when they could have been delivered. It is also seen that in Ex.P.1 complaint P.W.1 did not mention the details of the copy applications made by him and any fee paid by him. 23. Thus what should be noted is that the DSP before laying the trap did not verify when P.W.1 applied for copies and whether he paid any amount and if so on what date and if so what is the procedure that is followed in the Sub-Registrar’s office for delivery of copies and within what period they have to be delivered from the date on which the applications were made for copies and if they were delivered by 16.12.1998. Thus without verifying the above aspects especially the copies of Ex.D.15 receipt which may be available with P.W.1 and without verifying whether P.W.1 was possessing any papers with him, he sent P.W.1 with the bribe money for trap. 24. The above circumstances and the evidence of P.W.4 and the entries in Ex.D.16 and Ex.P.20, to repeat, show that applications for copies of the five documents were made through Exs.D.10 to D.14 on 11.12.1998 and were delivered on 14.12.1998. In such a situation the question will arise whether there is any need for P.W.1 to go to the accused again. It is quite possible that P.W.1 was carrying the five sale deeds copies with him which he took delivery on 14.12.1998 with him at the time of trap and it is also quite possible that the DSP could have seized the same. In such a situation and in view of the circumstances aforesaid, the whole case relating to the demand for bribe on 16.12.1998 and its demand and receipt on 18.12.1998 by the accused becomes reasonably doubtful. 25. The question now remains about the recovery of the money from the table drawer. It is true that the accused who has pushed away the amount in the first instance would not have allowed P.W.1 to keep the amount in the table drawer and this may sound improbable also. However when judged in the above circumstances the version of the accused that P.W.1 has kept the amount in the table drawer which was kept open even though he refused it and in the meanwhile the trap party entered the office in seconds and seized the amount cannot also be ruled out. 26. It should also be noted here that P.W.1 in his cross- examination made on behalf of the accused stated as follows regarding what happened on the date of trap and the circumstances under which he gave statement to the ACB. “It is true that I gave statement to ACB out of fear. The evidence given by me today with reference to the events that took place on 18.12.1998 at the Sub-Registrar’s office is true and correct.” He then went on to add that he even gave Ex.P.2 Section 164 Cr.P.C. statement before the Magistrate due to fear of the ACB. In the above circumstances relating to dates of Exs.D.10 to D.15 and the date of delivery of documents and having regard to the above state of evidence it would be not prudent to sustain the charges only on the circumstance that the amount was found in the table drawer of the accused having regard to the above explanation of the accused. 27. Sri Ramachandra Reddy relied upon B.Noha v. State of Kerala[1] and V.K.Kannan v. State rep. by Inspector of Police[2] and pointed out that basing upon the principles laid down in the said decision the charges can be sustained having regard to the fact that the amount was recovered from table drawer of the accused. In the first case, the evidence of P.Ws.1 and 2 i.e. the complainant and the accompanying witness/mediators therein were assailed on the ground that their evidence was interested evidence as they were interested witnesses. This contention was rejected and holding that there was no basis for the de facto complainant therein to falsely implicate the accused and basing on the evidence which clearly showed that illegal gratification was demanded and accepted by the public servant therein the convictions were maintained. In