IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Dated:- 26th April, 2010 PRESENT: THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.906 of 2003 Between: T.Lakshmi Narsaiah …Accused / Appellant AND The State of A.P. …Respondent / Complainant THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.906 of 2003 JUDGMENT: The appellant herein is accused No.2 in C.C.No.18 of 1994 on the file of the Special Judge for SPE and ACB Cases, Vijayawada (hereinafter referred to as ‘Special Judge’). He was tried along with accused No.1 and during the pendency of the proceedings, A-1 died and the case against him abated. The learned Special Judge found the appellant guilty and convicted and sentenced the appellant to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.1,000/-, in default, to suffer Simple Imprisonment for a period of two months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1981 (hereinafter referred to as ‘the Act’), read with Section 34 IPC. The appellant was also convicted and sentenced to undergo Rigorous Imprisonment for a period of one year and also to pay fine of Rs.1,000/-, in default, to suffer Simple Imprisonment for a period of two months for the offence punishable under Section 13(1)(d)(ii) read with Section 13(2) of the Act. The substantive sentences were ordered to run concurrently. Aggrieved by the said judgment, the appellant herein preferred this appeal. Hereinafter, the accused No.2 shall be referred to as the accused for the sake of convenience. 2. The brief facts of the case are as follows. The accused was working as Senior Assistant in the office of the Deputy Commercial Tax Officer (hereinafter referred to as ‘DCTO’), Ramireddypeta, Narsaraopet Town, Guntur District, and accused No.1 was working as Deputy Commercial Tax Officer during the relevant period. P.W.1 – Y.Venkayya is resident of Narsaraopet Town, Guntur District. He knows A-1 and the accused. He, along with his brother Y. Sreenivasa Rao (P.W.2) were looking after the business affairs. Two to three months prior to 13.06.1994, A-1 and A-2 visited the shop of P.W.1 and asked P.W.1 to provide an emergency light. P.W.2 told that the said item was not available in their shop. On that, A-1 and accused alleged to have threatened P.W.1 and P.W.2 that they would take departmental action against them. On 13.06.1994, at about 05.00 p.m., A-1 and the accused inspected the shop of P.W.1. At that time, P.W.2 was present in the shop. They seized account book and other records which are marked as Exs.P.4 to P.10 from the shop of P.W.1 and they instructed P.W.2 to inform P.W.1 to meet them on the next day in their office. Accordingly, P.W.2 informed P.W.1. P.W.1 visited the office of DCTO on 14.06.1994 at about 11.00 a.m. On that, A-1 demanded a sum of Rs.16,000/- towards bribe for not taking action against P.W.1. A-1 also directed P.W.1 to pay the said amount within a week. The accused was also present when A- 1 demanded the said amount. A week later, P.W.1 again visited the office of DCTO. The accused was present in the office at that time. P.W.1 approached the accused and requested him to return the account books seized form his shop. On that, the accused informed that P.W.1 should pay at least Rs.7,000/- for returning the said account books. P.W.1 expressed his inability to pay the bribe amount and returned back. 3. Subsequently, on 08.07.1994, the accused visited the shop of P.W.1 and took away one ceiling fan and one two-band transistor without paying any amount, whose cost is about Rs.750/- to Rs.800/-. The accused also informed P.W.1 to meet A-1 on the next day at about 09.00 a.m. at the residence of A-1. On 09.07.1994, the accused again visited the shop of P.W.1 in the morning at about 09.00 a.m. and took P.W.1 to the house of A-1. After questioning P.W.1 whether he had brought the amount and when P.W.1 replied that he did not bring any amount, A-1 asked him to pay at least Rs.4,000/- towards bribe and further directed to pay the said amount within a week to the accused. It is also alleged that A-1 threatened that he would book a case against P.W.1, if his demand is not met. On 14.07.1994, at about 05.00 p.m., P.W.1 approached Inspector, Anti Corruption Bureau, Guntur, and presented a written report, which is marked as Ex.P.1. 4. P.W.8 – J.Bhaskara Rao, who was working as Inspector of Police, ACB, Guntur, having received Ex.P.1 report from P.W.1 and having made necessary enquiries, informed the same to P.W.7 – V.V.Nammalvar, who was working as Deputy Superintendent of Police, ACB, Vijayawada. Basing on the said report, P.W.7 registered a case in Crime No.7/ACB- VJA/1994 on 16.07.1994. Mediators were arranged. P.W.1 was introduced to the mediators and vice-versa. The mediators verified the correctness of Ex.P.1 from P.W.1. P.W.1 produced Rs.4,000/-, and the numbers of the currency notes were noted in mediators report. The Sodium Carbonate Solution was prepared and when the mediators rinsed their fingers in the said solution, there was no change in the colour. One of the Head Constables applied Phenolphthalein powder to the currency notes and the currency notes were kept in the empty shirt pocket of P.W.1. P.W.1 was directed not to touch those currency notes and to pay them to A-1 and the accused only on their demand. He was also directed to give pre-arranged signal after the accused demanded and accepted the bribe amount. The Head Constable, who applied Phenolphthalein powder to the currency notes, was directed to rinse his fingers in the solution and the solution turned into pink colour. The significance of the test was explained to the mediators and also to P.W.1. Then P.W.6 was directed to accompany P.W.1 to watch the events and to relay the signal. The particulars of pre-trap proceedings were noted in Ex.P.15 – the first mediators report. 5. After the completion of the first mediators report, the trap party, along with the mediators, proceeded in two vehicles i.e. one jeep and one car and P.W.1 and P.W.6 proceeded to the office of the DCTO and the other trap members took vantage positions. P.W.1 approached A-1 and when A1 asked whether he had brought the bribe amount of Rs.4,000/- and when P.W.1 gave positive reply, A-1 called the accused to his chambers and directed him to return the account books seized from the shop of P.W.1. Then the accused brought the account books and handed over the same to P.W.1. A-1 asked the accused to receive the bribe amount of Rs.4,000/- and P.W.1 handed over the tainted currency notes amounting to Rs.4,000/- to the accused in the chambers of A-1. The accused took the amount, counted the same and kept the same in his left side pant pocket. Then P.W.1 and P.W.6 came out of the office and gave pre-arranged signal and the raid party, headed by the DSP, rushed into the office of the DCTO. P.W.1 was asked to wait outside. After the trap party introduced themselves to A-1 and the accused, Sodium Carbonate Solution was prepared in two tumblers. When A-1 rinsed his fingers in the said tumblers, there was no change in the colour. Two tumblers of Sodium Carbonate Solution were prepared and the accused was directed to rinse his hand fingers. When the accused rinsed his right hand fingers in the said tumbler, the solution turned into pink colour so also when he rinsed his left hand fingers. On demand, the accused produced the tainted currency notes from his pant pocket. The mediators verified the note numbers mentioned in Ex.P.15 and the numbers tallied. Pant of the accused was seized and the left side pant pocket was also subjected to the Sodium Carbonate test and it gave positive result. The version of A-1, the accused and P.W.1 was incorporated in the second mediators report. Exs.P.2 to P.11 were seized from the custody of P.W.1 i.e. the documents which were returned to P.W.1 from the office of the DCTO. The resultant solution, the pant and the tainted currency notes were seized. Rough sketch of the scene of offence was prepared. Second mediators report, which is marked as Ex.P.21, was prepared. P.W.8, after obtaining necessary sanction, filed the charge sheet. Since both the accused denied the charges leveled against them, the prosecution examined P.Ws.1 to 8 and got marked Ex.P.1 to P.28 besides marking M.O.s 1 to 10. Ex.X1 was marked. On behalf of the accused, none were examined, but Ex.D.1 was marked. A-1 died during the pendency of the proceedings. The learned Special Judge, having appreciated the oral and documentary evidence, found the accused guilty and convicted and sentenced him as stated supra. 6. The learned senior counsel, Sri Padmanabha Reddy, argued that the lower Court erred in convicting the accused; that the evidence of P.W.1 / other witnesses is not reliable. It is argued that Ex.D.1 shows that P.W.2 signed on it and that accused, having paid an advance of Rs.200/-, taken away the ceiling fan and also Two-band Transistor and, therefore, the evidence of P.W.1 that the accused had taken away the ceiling fan and the Two-band Transistor without paying the amount is utterly false. His main submission is that Section 34 of the Act cannot be invoked either for punishing the accused under Section 7 or Section 13(1)(d) of the Act. It is further argued that the accused was working under A-1; that he was only a clerk and he had to comply with the directions of A-1; that he cannot refuse to take the amount if the same is directed by A-1; that the accused and A-1 never shared any common intention of demanding bribe or to accept the bribe amount and as such, there is nothing on record to show that the accused shared common intention with A-1. It is argued that admission of P.W.2 that he did not state before the Police that A-2 was present when A-1 demanded the bribe amount on 13.06.1994 reveals that A-2 did not share common intention with A-1 and that P.W.1 and P.W.2 have improved their version and as such, their subsequent version cannot be believed. The main submission of the learned senior counsel is that P.W.1 paid the amount towards arrears of tax and that the accused received the same towards advance tax and while he was about to prepare a receipt, the ACB officials entered into their office. It is argued that the material contradiction in the evidence of P.W.1, P.W.2 and P.W.6 were not taken into consideration and there was no proper appreciation of evidence, which resulted in reaching incorrect conclusions. 7. On the other hand, Sri Ravi Kiran Rao, learned Special Public Prosecutor, argued that the evidence on record proves that the accused also demanded and accepted the bribe though initially it is argued that it is A-1 who had demanded the bribe amount. It is his further submission that the role played by the accused shows that he had instructed P.W.1 that at least an amount of Rs.7,000/- should be paid as bribe to A-1. It is further argued that even if it is held that the accused had demanded and accepted the amount on behalf of A-1 and for A-1, the same proves the charge leveled against him. It is also argued that there is no reason for the witnesses to give false evidence against the accused and that their evidence can be safely relied upon. It is also argued that once it is proved that the Phenolphthalein Powder test proved positive and the tainted currency notes were recovered from the possession of the accused, a presumption under Section 20 of the Act has to be drawn against the accused, and it is for the accused to prove that the amount received by him is not towards bribe and it is for some other purpose. It is further argued that the version of the accused is not probable. It is also submitted that the version of the accused that he obtained Ex.D.1 receipt and that under Ex.D.1 receipt, he paid an advance of Rs.200/- for purchasing the ceiling fan and two-band transistor is improbable and unbelievable. It is further argued that admittedly, it is on 08.07.1994 that the accused went to the shop of P.W.1 and P.W.2 and had taken away the ceiling fan and the two-band transistor and admittedly no amount was paid on that day and no receipt was issued on that day. It is the further case of the prosecution that on 09.07.1994, the accused again went there and took P.W.1 to A-1. It is further argued that Ex.D.1 cannot be treated as receipt and it is only an invoice and there is no receipt number on it and Ex.D.1 was subsequently obtained in support of his case by the accused. It is further argued that no suggestion was given to P.W.1 and P.W.2 that the accused paid an advance of Rs.200/- for taking away the ceiling fan and two- band transistor and if at all the accused had paid the amount, there was no need for P.W.1 to give a report to the ACB officials stating that the accused had taken away the ceiling fan and two- band transistor without paying any amount. It is further argued that the version of the accused that he had accepted the amount from P.W.1 for the payment of tax has no basis. It is further submitted that no file showing demand of tax or due of tax is neither referred nor summoned by the accused. These circumstances show that there is nothing on record, which would go to show that P.W.1 had to pay the due amount of tax on the date of trap. It is further argued that the version of the accused is not probable. 8. It is also argued that though there appears to be some minor discrepancy with regard to place where the accused had accepted the bribe amount, the subsequent evidence of P.W.6 shows that he had clarified that the bribe amount was accepted by the accused in the chambers of A-1. It is further argued that witnesses were examined after a period of 08 years from the date of incident and that there was a delay in conducting the trial and as such, one cannot expect the witnesses to remember all the minute details. It is also submitted that minor discrepancies or contradictions or omissions in the version of the witnesses gives guarantee that they are not tutored but they are natural witnesses. 9. In the light of the above discussion, the points that arise for consideration in this appeal before this Court are: 1) Whether in the circumstances of the case, a presumption under Section 20 of the Act should be drawn or not; 2) What is the role played by the accused in demanding and accepting the bribe amount and had he also shared any common intention along with A-1 in demanding and accepting the bribe amount; and 3) Whether the version of the accused is probable. 10. As far as the case of the accused is concerned, it is alleged that he accompanied A-1 to the shop of P.Ws.1 and 2 on 13.07.1994 and they seized the records from their shop. It is argued that P.W.2 did not state the presence of the accused at the time of demanding the emergency light and the bribe amount on 13.06.1994. The evidence of P.W.1 is clear on this aspect. As far as the visit of A-1 to the shop of P.Ws.1 and 2 three months prior to the date of inspection is concerned, it is the specific case of P.W.1 that A-1 alone visited their shop. Therefore, though P.W.2 deposed that two or three months prior to 13.07.1994 both A-1 and the accused visited their shop, on a critical analysis of the evidence, it appears that on that day A-1 alone visited their shop and demanded emergency light. 11. As far as the date i.e. 13.07.1994 is concerned, the evidence of P.W.2 shows that he was present in the shop on that day and that A-1 and the accused visited their shop and seized the records which are marked as Exs.P.4 to P.10 and directed him to inform P.W.1 to meet A-1 on the next day in their office. It is not the case of the prosecution that on 13.07.1994, A-1 made any demand of bribe amount. Therefore, the suggestion given to P.W.2 that he did not state to ACB officials that the accused was also present when A-1 demanded bribe amount on 13.07.1994 does not help the accused. A careful reading of the evidence of P.Ws.1 and 2 reveals that A-1 and the accused, visited their shop on 13.07.1994, taken away the records which are marked as Exs.P.4 to P.10 from their shop. According to P.W.1, on the next day i.e. 14.07.194, he visited the office of the DCTO and on that day, A-1 demanded the amount of Rs.15,000/- towards bribe for returning the seized documents and directed to pay the said amount to the accused within a week and that the accused was also present when A-1 demanded the said amount. Thus, it is clear that the accused was present along with A-1 when A-1 not only demanded bribe amount but also directed P.W.1 to pay the said amount of Rs.15,000/- to the accused. Thus, it is clear that the accused knows that the demand of Rs.15,000/- by A-1 was towards bribe and that he was ready to accept the bribe amount on behalf of A-1. The evidence of P.W.1 further reveals that after about a week, when he visited the office of the DCTO and met the accused, the accused specifically informed P.W.1 that he had to pay at least an amount of Rs.7,000/- for return of the seized account books. Thus, it is clear that the accused is also a party to the demand of bribe amount. Further, the conduct of the accused in visiting the shop of P.Ws.1 and 2 on 08.07.1994 and taking away the ceiling fan and a two-band transistor from their shop also shows that the accused is not an innocent person and he had played specific role in pressurizing P.W.1 to pay the bribe amount. According to P.W.1, it is on 09.07.1994 at about 09.00 a.m. that the accused again visited their shop and directed P.W.1 to meet A-1 and took P.W.1 along with him to A- 1. Then, A-1 demanded to pay an amount of Rs.4,000/- as bribe and then the complaint was given to ACB officials on 14.07.1994 by P.W.1. 12. The main contention of the learned counsel for the accused is that the evidence of P.W.1 shows that he is speaking false and that Ex.D.1 receipt clearly shows that the accused paid an amount of Rs.200/- as advance for purchase of ceiling fan and two-band transistor and that P.W.2 admitted that he issued Ex.D.1 receipt which bears his signature. A perusal of Ex.D.1 reveals that it is only a quotation dated 09.07.1994. The specific case of P.Ws.1 and 2 is that it is on 08.7.1994 that the accused visited their shop and taken away ceiling fan and two- band transistor. It was not suggested either to P.W.1 or P.W.2 that the accused did not visit their shop on 08.07.1994 or that he had paid an amount of Rs.200/- on 08.07.1994. A perusal of Ex.D.1 receipt also shows that no receipt number is mentioned on it. It is only a quotation. The accused, being a Senior Assistant working in the office of the DCTO, should not have accepted a quotation in the place of receipt which does not bear any receipt number. Even if it is accepted that Ex.D.1 is a genuine receipt, admittedly, no amount was paid on 08.07.1994 when ceiling fan and two-band transistor was taken away from the shop of P.Ws.1 and 2. The conduct of the accused in again visiting the shop of P.Ws.1 and 2 and taking P.W.1 along with him to A-1 shows that there was meeting of minds between A-1 and the accused and that both of them were pressurizing P.Ws.1 and 2 for paying the bribe amount and that they were not intending to return the records seized from the shop of P.Ws.1 and 2, unless the bribe amount was paid to them. The evidence of P.W.3 would go to show that he worked as Commercial Tax Officer, Narsaraopet, and that A-1 and the accused were not authorized to inspect shops and establishments including Shakti Electricals. Thus, the evidence of P.W.3 clinchingly establishes that the inspection of shop of P.Ws.1 and 2 by A-1 and the accused was unauthorized. 13. It is argued that P.W.4 admitted that the ceiling fan was fixed in the house of the accused at the request of P.W.1. Even if it is accepted as a fact that P.W.1 requested P.W.4 to fix the ceiling fan in the house of the accused, that will not help to the accused because, P.Ws.1 and 2, being business people, may try to maintain good relationship with the officials of the Commercial Tax department. It appears that there is nothing wrong if at all P.W.1 had asked P.W.4 to fix the ceiling fan in the house of the accused. This circumstance alone, in my view, cannot demolish the prosecution case. 14. As far as the trap is concerned, we have the evidence of P.W.1, P.W.6 and P.W.7. According to P.W.1, after completing the first mediators report and completing the necessary formalities, they proceeded to the office of the DCTO. A-1 was available in his chambers. On seeing P.W.1, A-1 asked whether he had brought the amount and when P.W.1 replied that he had brought the amount, A-1 called the accused and asked to return the seized account books and A-1 also asked the accused to receive the bribe amount of Rs.4,000/-. Then, P.W.1 handed over the tainted currency notes of Rs.4,000/- to the accused in the chamber of A-1. The accused took the amount, counted it and kept the same in his pant pocket. 15. According to P.W.6 – Sri N.V.R.K.Prasad, he acted as a mediator and that when he accompanied P.W.1 to the office of A-1, A-1 was found sitting in his chair and when P.W.1 requested A-1 for records, A-1 enquired with P.W.1 whether he had brought the amount and when P.W.1 gave positive reply, A- 1 asked P.W.1 to handover the said amount to the accused. Subsequently, P.W.1 and the mediator went to the seat of the accused and handed over the tainted currency notes to the accused in his chambers. Since the said version of P.W.6 was contradicting prosecution case, he was declared hostile and he was cross-examined by the prosecution. During cross- examination, P.W.6 was furnished with the documents i.e. second mediators report. After going through the second mediators report, P.W.6 has accepted that it is mentioned in Ex.P.19 that the tainted currency notes were handed over to the accused in the chambers of A-1. Further P.W.6 had categorically deposed that the subsequent version that the tainted currency notes were handed over to the accused in the chambers of A-1 is correct. P.W.6 further clarified that since the incident took place about eight years back, he could not recollect as to whether the amount was paid to the accused in the chambers of A-1 or at the seat of the accused. The delay in holding trial and examining the witnesses may result in such a kind of situation. Human memory may fade and it is impossible to remember all the minute details that occurred several years ago. In this case P.W.6 has deposed eight years after the date of trap. In the circumstances, there is nothing to disbelieve the version of P.W.6. P.W.6 is an independent witness and he appears to be a reliable witness and his evidence appears to be reliable