THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL NO.2591 OF 2004 Date: 24.11.2011 Between: State, rep. by its Deputy Superintendent of Police, A.C.B., Eluru Range, Eluru. …..Appellant And Gali Nagabhushanam …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL NO.2591 OF 2004 JUDGMENT: This is an appeal from acquittal. Appellant is the State represented by the Deputy Superintendent of Police (DSP), Anti Corruption Bureau (ACB), Eluru Range, West Godavari District. The respondent Gali Nagabhushanam who was the Assistant Commercial Tax Oﬃcer (ACTO), Intelligence in the oﬃce of the Deputy Commissioner, Commercial Taxes, West Godavari District and who was admittedly a public servant within the meaning of the Prevention of Corruption Act, 1988 (for short Act) was tried on two charges by the court of the Special Judge for SPE & ACB Cases, Vijayawada (trial court), in C.C.No.2 of 1994 on its ﬁle. The ﬁrst charge is under Section 7 and the second is under Section 13(1)(d)(ii) read with Section 13(2) of the Act on the allegations relating to bribery. 2. The trial court, after considering the evidence let in by both sides, has by its judgment dated 30.6.2004 acquitted the respondent. Questioning that judgment of acquittal the State has come up with this appeal. 3. The prosecution case is this. P.W.1 T.Krishna who is the de facto complainant was at the relevant time a resident o f Gantavarigudem in Nallajarla Mandal of West Godavari District and was doing business there in cashew nuts and palmyrah ﬁbre under the name and style M/s.Saroja Enterprises. The respondent/ public servant (hereinafterwards referred to as accused) was the ACTO, Intelligence having jurisdiction over the place where P.W.1 was carrying on his business. It is stated that on 24.04.1993 initially the accused and his staﬀ went to the business premises of P.W.1 and made certain checks and collected composition fee and also tax and on that day the accused also demanded P.W.1 to pay him a bribe of Rs.10,000/- informing him that if that amount is not paid he will book cases against him. It is stated that P.W.1 expressed his inability to pay the amount of Rs.10,000/- and thereafter the accused and his staff went away. 4. The further version of the prosecution is that on 13.05.1993 the accused and his staﬀ went again to the business premises of P.W.1 and veriﬁed certain records and on that occasion the accused again demanded P.W.1 to pay bribe of Rs.10,000/- and on that day, having no other go, P.W.1 agreed to pay a sum of Rs.7,500/- to which the accused agreed, and P.W.1 actually paid a sum of Rs.5,000/- on that day to a subordinate of the accused promising him to pay the balance of Rs.2,500/- on or before 18.05.1993. It is stated that P.W.1 was unwilling to pay the balance and therefore gave a report i.e. Ex.P.4 to the ACB police, Eluru, and a case was registered by them and P.W.6 Abdul Shukar, the DSP, ACB arranged to lay a trap along with mediators. According to the prosecution the trap was laid on 18.5.1993 at about 7.30 am with an amount of Rs.2,500/- tainted with sodium carbonate - phenolphthalein powder and the trap was successful and it was actually laid at the house of the accused in Eluru. 5. The plea of the prosecution is that on the date of the trap both P.W.1 and his brother P.W.2 T.Nageswara Rao went to the house of the accused to give the bribe amount of Rs.2,500/- and the accused demanded and received that amount from P.W.1 and kept it on a teapoy in his front room and covered it with a long note book and the ACB DSP and the mediators on receiving the pre-arranged signal from P.W.2 entered the house of the accused and recovered the amount. It is stated that the sodium carbonate solution test also proved positive on both the hands of the accused showing that he received the amount towards bribe. P.W.3 S.Veerabhadra Rao, the then Assistant Engineer, Panchayat Raj Department, Eluru is one of the two mediators. P.W.5 T.Srinivasulu Reddy who is the then section oﬃcer in the Revenue (C.T.) Department, Secretariat, Government of A.P., Hyderabad and he spoke about Ex.P.22 sanction order issued for prosecuting the accused. The details of the other evidence are mentioned in the appendix of the judgment of the trial court. 6. The trial court as already mentioned rejected the prosecution case and recorded acquittal. It has now to be seen whether the prosecution evidence proves the charges brought against the accused beyond all reasonable doubt. It may be noted that a perusal of the evidence of P.W.1 T.Krishna would show that he did not support the prosecution case as pleaded by it. He was also declared hostile and cross-examined but nothing could be elicited from him to show the guilt of the accused beyond reasonable doubt. 7. It may be noted that P.W.1 in his evidence stated that on the date of the trap i.e. on 18.05.1993 in the morning he went to the house of the accused and that when he reached near the house of the accused, the accused himself came out and on seeing him, he came forward and shook his hands with him (P.W.1) and took him and his brother i.e. P.W.2 into his house. He then stated that while shaking the hands with the accused, he handed over the sum of Rs.2,500/- to the accused and thereafter on receiving the signal, the trap party came inside the house and carried out the rest of the trap work. What should be noted is that the above version of P.W.1 does not tally with the prosecution plea/case disclosed in Ex.P.18 mediators report drafted for the post- trap proceedings which is to the eﬀect that the accused himself demanded and received the amount from P.W.1 in his house and kept it on the teapoy. 8. It should however be noted that according to the version of P.W.6 the DSP ACB, the sodium carbonate – phenolphthalein powder test proved positive on the hands of the accused. The defence counsel relied upon one circumstance to explain the above result of the sodium carbonate – phenolphthalein powder test on the hands of the accused and that is this. The evidence of P.W.3 the mediator assumes importance regarding what happened in the pre- trap proceedings. He says that in the pre-trap proceedings which took place in the oﬃce of the DSP, ACB the police constable who applied the phenolphthalein powder to the currency notes has put the currency notes i.e. the bribe money in the shirt pocket of P.W.1 and by that time P.W.1’s shirt pocket already contained his spectacles, key chain and ball point pen. The version of P.W.6 the DSP is however at variance. P.W.1 also in his evidence stated that when the cash tainted with phenolphthalein powder was put in his shirt pocket, his spectacles and key chain were already there in his pocket and he did not remove them and the learned counsel for the accused says that the key chain kept in the shirt pocket of the P.W.1 is his motorbike’s key chain and nothing is brought on record to dispute this aspect. 9. Now if the version of P.W.3 the mediator and P.W.1 himself is to be believed, by the time the cash tainted with phenolphthalein powder was kept in his shirt, the spectacles were already there along with the cash and the key chain. Admittedly P.W.1 and his brother went to the house of the accused on his motorbike. For using the motorbike it is quite possible for P.W.1 to have removed his spectacles to wear them for going on bike and the key chain from his pocket and could have handled them many times before reaching the accused and in such a manner it can be said that P.W.1’s hand could have come into contact with phenolphthalein powder applied to the currency notes in question i.e. the bribe amount. Thus if P.W.1 as stated by him has shaken his hands with the hands of the accused at the entrance of the house of the accused, it follows that there is every possibility of the hands of the accused getting tainted with the phenolphthalein powder even without receiving the tainted money. I think the above argument of the learned counsel for the accused can be accepted as reasonable explanation. 10. It should also be noted that the line of defence taken in the cross examination of P.W.1 is that accused received P.W.1 and had a hand shake with him at the entrance, he went inside the house in connection with his personal reason of tightening his lungi and taking advantage of the same P.W.1 put the amount on the teapoy beneath the note book and immediately came out after sitting there for a while and that the accused also came out to call P.W.1 as to for what purpose he came. It would be relevant to note here that P.W.3 the mediator stated that when himself and P.W.6 the DSP went to the house of the accused after receiving the signals from P.W.2 he found the accused at the compound wall of the house. This version of P.W.3 probablizes the suggestion put to P.W.1 that the accused immediately came out to see P.W.1 soon after he came out of the house. 11. It may then be noted that P.W.1 in his evidence i.e. in the cross-examination further admitted that when he entered the house of the accused he found two other persons also in it and they were talking to each other but he stated that he cannot furnish the names of those others. The accused examined D.W.2 R.Venkateswara Rao. This D.W.2 is also a resident of Eluru and he says that he had acquaintance with the accused and on the morning of the date of trap i.e. 18.05.1993 he went to the house of the accused at about 7.00 am after completing the morning walk and at about 7.30 am when himself and two others were chitchatting with the accused, P.W.1 came there and that the accused also questioned him why he came there. He then stated that at that juncture the accused went inside and in the meanwhile P.W.1 (described as a person) kept a packet on the teapoy beneath the books and went away and in the meanwhile ACB oﬃcials came. The presence of others in the house of accused is not noted in Ex.P.18 mediatornama for post-trap proceedings. However P.W.1 gave a diﬀerent version which throws a doubt on the prosecution case and it is already mentioned supra. The acquaintance of D.W.2 with the accused is not disputed. In such circumstances the above line of defence cannot be rejected as baseless. 12. It is true that P.W.2 did not turn hostile and he supported the prosecution case and he was examined as the witness accompanying P.W.1 but P.W.1 chose to give a diﬀerent version. It is his version that he handed over the money to the accused at the entrance itself but he failed to explain how the money reached the teapoy in such a situation. The trial court discussed the above circumstances in concluding against the prosecution. 13. S r i Ghani A Musa, the learned Special Public Prosecutor relied upon the evidence of P.W.6 the DSP ACB, the contents of the ﬁrst and second mediator reports and the evidence of P.Ws.2, 3 and 6 to show that there was an earlier demand and the accused has already took a sum of Rs.5,000/- out of Rs.7,500/- and contended that the version of P.W.1 should be disbelieved and the conviction should be recorded on the evidence of P.Ws.2, 3 and 6. There is no force in this contention. It may be noted that the accused has been put on trial on the allegation that he received a sum of Rs.2,500/- towards bribe which is not supported by P.W.1 the de facto complainant. The allegation that the accused already received a sum of Rs.5,000/- in such an event does not help the prosecution for the simple reason the charges relate to the receipt of Rs.2,500/- and if this latter is proved the receipt of Rs.5,000/- would assume importance. 14. The evidence of P.W.1 and the evidence of D.W.2 would show that there was no demand of bribe on the date of trap and the probabilities having regard to the evidence of D.W.2 and answers of P.W.1 are more against the prosecution. Added to this and as already mentioned the various circumstances found in the evidence of P.W.1 and P.W.3 as to how the tainted amount was kept in the shirt pocket of P.W.1 by allowing P.W.1 to keep his spectacles and key chain in his shirt pocket would show that P.W.1’s hand can get tainted with phenolphthalein powder and the same could have been passed on to the P.W.1 even without giving bribe amount to him. This is a minus point for the prosecution and raises a reasonable doubt about the very veracity of the alleged post-trap proceedings. As P.W.1 himself did not support the case the evidence of P.W.2 in the above circumstances cannot improve it especially when money was not recovered from the possession of the accused. 15. In addition to the above circumstances the trial court has also discussed about the visit of the accused on 13.05.1993 and the evidence of P.W.4 in that behalf concluded that the accused did not go for any camp on 13.05.1993 and therefore the demand on 13.05.1993 is also doubtful. P.W.3 also admitted that on the date of trap the accused gave explanation about his inspection of the business of P.W.1 and as to how P.W.1 oﬀered to pay the tax payable and came to his house though he was not supposed to receive the tax at house. 16. It should also be noted here that ACB police acts only upon the information given by the de facto complainant who is taken as a decoy. Now when the de facto complainant has given diﬀerent versions i.e. one before them and one before the Court giving scope for doubt and the other circumstances, as in the present case, strengthen that doubt it will be diﬃcult to accept the prosecution case and reverse a judgment of acquittal. In these circumstances it follows that there is no compelling reason to disagree with the conclusions of the trial court in recording acquittal. 17. Accordingly this appeal is dismissed conﬁrming the judgment of the trial court. ______________________ N.RAVI SHANKAR, J 24th November, 2011 Tjmr/CVRK