THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 143 OF 2003. DATED: 20-11-2009. Between: State: Inspector of Police Anti Corruption Bureau, Tirupathi Range, Tirupathi. … Appellant/Complainant and P.Sattar Ahmed Khan. … Respondent/Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 143 OF 2003. JUDGMENT: This Criminal Appeal by the State under Section 378 (3) and (1) Cr.P.C., is directed against the judgment, dated 09-08-2002, in C.C. No.11 of 1998, on the file of the Special Judge for SPE & ACB Cases, Nellore, whereunder and whereby the accused was acquitted of the offences punishable under Sections 7 and 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’). 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The respondent (hereinafter referred to as ‘Accused Officer’) was working as Senior Assistant, Government Degree College, Jammalamadugu, Kadapa District. PW1 who is the de facto complainant, resident of Jammalamadugu and working as Lecturer in Chemistry Department in the same college. P.W.1 underwent family planning vasectomy operation during July, 1986 in the Government hospital, Jammalamadugu and an incentive increment of Rs.50/- was paid to him by the College from August, 1986. Revised pay scales for lecturers came into force from January, 1986 which enabled to increase the family planning incentive to Rs.100/- to P.W1. But the same was not effected to P.W.1 while revising his scales. On submission of several representations by P.W.1, the Principal of the college issued proceedings increasing it accordingly vide reference No.416/90, dated 06-04-1996. After knowing it, the accused officer prepared and presented the corresponding arrear bill for Rs.6,831/- to the Sub- Treasury on 20-04-1996. P.W.1 met the accused officer on 23-04- 1996 at 12.00 noon and requested him about the bill. At that time, the accused officer demanded him to pay bribe of Rs.1,000/- to submit favourable reply for the check slip and also for getting it passed. But P.W.1 expressed his unhappiness to comply with the demand for such a small sum of arrears. Again on 13-06-1996 at about 10.00 A.M. when P.W.1 met the accused officer and requested him to do said official favour, the accused officer reiterated the demand of Rs.1,000/- for necessary compliance. On the request of P.W.1, the accused officer reduced his demand from R.1,000/- to Rs.600/-. As there was no alternative, P.W.1 agreed for the same. Immediately, the accused officer prepared a reply for the check slip and submitted the relevant bill to the S.T.O. after fulfilling formalities on 14-06-1996 and got it passed and drew the requisite cash. P.W.1 was in mental agony as he was not willing to pay the bribe amount to the accused officer and lodged a complaint to the D.S.P. A.C.B., basing on which P.W.8 registered a case and arranged trap proceedings. On 20-06-1996 during the course of trap, when P.W.1 met the accused officer in his office and requested for the said official favour, the accused officer reiterated his demand to pay Rs.600/- as bribe. Thereafter, the accused officer was successfully trapped by ACB. Chemical test conducted on both hand fingers of the accused officer, inner lining of the left side pocket of the shirt of the accused officer and the relevant pages of the text book where the tainted amount kept by the accused officer proved positive. P.W.8 seized the tainted amount of Rs.600/- an also other material. After obtaining Ex.P31- sanction from the competent authority, P.W.9 filed the charge sheet. 3. The learned Special Judge framed the following charges against the accused officer: CHARGE NO.1: That you on 20-06-1996 at about 11.15 A.M. at your office in Government Degree College, Jammalamadugu, you being the Senior Assistant of Government Degree College, Jammalamadugu i.e., a Public Servant, pursuant to your prior demand, received and accepted a sum of Rs.600/- as illegal gratification or bribe other than legal remuneration from K.Venkatasubbiah, Lecturer in Chemistry of Government Degree College, Jammalamadugu to encash and pay his arrears of Family Planning Incentive Increment from August, 1986and thereby committed an offence punishable under Section 7 of the P.C. Act, 1988, and within my cognizance. CHARGE NO.2: That in the course of same transaction and at about same date, time and place mentioned in charge No1 above, you being a public servant accepted the illegal gratification of Rs.600/- and that amounts to obtaining a pecuniary advantage by corrupt or illegal means and you thereby committed an offence punishable under Section 13 (2) read with 13 (1) (d) of P.C. Act, 1988. When the above charges were read over and explained to the accused officer in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 9 and got marked Exs.P1 to P31 besides case property, M.Os.1 to 9. 5. After closure of the prosecution evidence, the accused officer was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused officer, D.Ws.1 to 3 were examined and Exs. D1 and D2 were marked. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, acquitted the accused officer. Challenging the same, State preferred this appeal. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused officer of the offences punishable under Sections 7 and 13 (2) r/w 13 (1) (d) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Mr. V.Ravi Kiran Rao, learned standing counsel appearing for ACB cases contended that the evidence of P.W.1 is very clear that the accused officer demanded and accepted the money, that when the chemical test conducted on both hand fingers as well as the shirt pocket of the accused officer proved positive, that there is no other reason for P.W.1 to foist a false case against the accused officer, that the evidence of prosecution witnesses is consistent with regard to demand and acceptance of bribe amount and hence, he prays to set aside the order of acquittal. 9. On the other hand, Mr.K.Rathangapani Reddy, learned counsel appearing for the accused officer contended that the evidence of P.W.1 cannot be put in the category of wholly reliable, that his conduct is not above board, that on the other hand the conduct, character and reputation of the accused officer is very good, that without the knowledge of the accused officer, the amount was kept in the book and handed over to the accused officer by P.W.1, that the trial Court rightly disbelieved the evidence of prosecution witnesses and acquitted the accused officer and absolutely, there are no grounds to interfere with the same. 10. The essential ingredients of Section 7 of the Act are: a. that the person accepting the gratification should be a public servant; b. that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person. 11. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 12. P.W.1 deposed that he underwent family planning vasectomy operation in the month of July, 1986. For that reason, he was granted monthly incentive increment of Rs.50/- from August, 1986. In the revised pay scales of 1988, the monthly incentive was revised from Rs.50/- to Rs.100/- with retrospective effect from January, 1986. Therefore, P.W.1 is entitled for arrears of incentive amount. Hence, he submitted Ex.P1-application to the Director of Collegiate Education, Hyderabad. The Commissioner of collegiate Education by virtue of Ex.P3 informed that the incentive increment would be paid as per the revised UGC scales of 1986. In spite of said proceedings, arrears have not been drawn and paid. Thereafter, P.W.1 sent Exs.P3 to P5 applications. In the month of April, 1996, he came to know that the Principal passed order with regard to family planning incentive. The accused officer informed P.W.1 that the bill was prepared and sent to the Sub-Treasury officer, Jammalamadugu, but it was returned with some objections. After complying the objections, the bill was again presented. On 23-04-1996 when P.W.1 met the accused officer in the college office and requested him to bring his arrear amount from the Sub-Treasury Office, Jammalamadugu, he allegedly demanded Rs.1,000/- for answering the objections on the check slip and re-submitting the same. Again on 13-06-1996, P.W.1 met the accused officer and requested him to see that the bill is passed. At that time, the accused officer reiterated his earlier demand of Rs.1,000/-. When P.W.1 requested to reduce the amount, the accused officer reduced it to Rs.600/-. Later the bill was passed. As P.W.1 was not willing to pay the amount, he lodged Ex.P9-report to P.W.8, who called P.W.2 and other mediator and prepared Ex.P13-pre-trap proceedings duly noting down the numbers of the tainted currency notes and applying phenolphthalein powder. Then P.W.1 went to the office room of the accused officer. The accused officer questioned him whether he brought the bribe amount and when P.W.1 affirmed, the accused officer asked him to give that amount. P.W.1 paid Rs.600/- and the accused officer received the amount with his right hand and counted the same with both of his hands and kept the amount in his left upper shirt pocket. Then he opened the office chest and paid Rs.6,831/- which is the arrears amount. P.W.1 signed in the acquaintance register duly noting down the date as 20-06-1996. P.W.1 came out of the office of the college and gave pre-arranged signal. Then the trap party rushed to the office and seized M.O.1-tainted currency notes from the accused officer. When the phenolphthalein test conducted on both hands and inner lining of the shirt pocket of the accused officer gave positive result. Then Ex.P14-post-trap proceedings were drafted. 13. The entire case rests upon the solitary testimony of P.W.1 with regard to demand and acceptance of bribe amount. When a case rests upon the solitary testimony, it must be unimpeachable, true and trustworthy in view of the decision reported in VADVIVELU THEVAR V THE STATE OF MADRAS [1], wherein it was held thus: “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 14. The evidence of P.W.1 would go to show that he was not in good terms with the accused officer. Several allegations of mis- conduct were attributed to P.W.1. In that connection, Regional Joint Director, Kadapa conducted enquiry against P.W.1. It is also in the evidence that the accused officer was being liked by all the staff members including teaching staff and students for his innocence and good conduct, except P.W.1. Similarly, the accused officer was hard working, honest and no complaints were received during the tenure of P.W.7 who worked as Principal of the college for a period of four years. The accused officer was liked by one and all including teaching staff and students except P.W.1. These aspects have been spoken to by P.Ws. 6 and 7. They were not declared hostile by the prosecution. Therefore, there were ill- feelings between P.W.1 and the accused officer prior to trap. The conduct and behaviour of P.W.1 is not above board. It is not in dispute that the accused officer obtained permission on 15-06- 1996 under Ex.P25, dated 14-06-1996. During his absence, Srinivasa Murthy was kept in charge of the duties of the accused officer. The said Srinivasa Murthy encashed the bill of P.W.1 and brought the cash from the bank. Since the accused officer applied permission on 15-06-1996, cash was entrusted to Srinivasa Murthy for disbursement on 15-06-1996. But P.W.1 did not take the amount from the said Srinivasa Murthy on that day. The allegation that the accused officer demanded Rs.1,000/- in the first instance on 23-04-1996 and again on 30-06-1996 appears to be improbable. If really, the accused officer demanded Rs.1,000/- and later reduced it to Rs.600/-, certainly P.W.1 would have collected the arrears of incentive increment drawn by Srinivasa Murthy. 15. It is not the case of P.W.1 that he was not aware of Srinivasa Murthy bringing cash from the bank on 15-06-1996. At least to avoid payment of any bribe as allegedly demanded by the accused officer, P.W.1 would have gone to the Record Assistant, Srinivasa Murthy and taken the cash from him because on 15-06-1996, he was in charge of that branch. He admitted that his bill amount was drawn on 14-06-1996. Thereafter, he did not make any complaint to the Principal that the amount was not paid. He admitted that he made a press statement against the Principal levelling certain allegations against him. He also informed about the demand made by the accused officer to the Principal. But the Principal who was examined as P.W.6 stated that P.W.1 did not complain to him that the accused officer demanded Rs.1,000/- for drawal of family planning incentive arrears. He admitted that he collected Rs.2,844/- from the students towards breakage and damage caused by the students for laboratory articles. He has not produced particulars of the collection made from the students. It is not in dispute that because P.W.1 did not join in election duty, the Principal stopped the leave period salary. He also admitted that the Commissioner of Collegiate Education, Hyderabad appointed Regional Joint Director, Kadapa to enquire into the allegations leveled against him made by the Principal and others. In view of the above discussion, it is clear that P.W.1 cannot be put in the category of wholly reliable witness. Therefore, his evidence requires corroboration. 16. Except the evidence of P.W.1, there is no other evidence to show that the accused officer demanded and accepted the bribe amount. Admittedly P.W.3 was also present at that time. According to him, P.W.1 went to the office room and had a talk with the accused officer for about 15 minutes and at that time, he saw P.W.1 handing over the book to the accused officer. Within 2 or 3 minutes, ACB officials rushed there. But he did not support the case of the prosecution. Therefore, he was declared hostile by the prosecution. 17. The evidence of P.W.4 is clear that he called the accused officer and handed over Ex.P23 and reference No.IA/96 and Ex.P24 –Chemistry book with instructions to handover the same to P.W.1. Thereupon accused officer went away by taking Exs.P23 and P24. Later he handed over Exs.P23 and P24 on 19- 06-1996. 18. Even according to the evidence of P.W.2, who is the mediator, tainted currency notes was not with the accused officer and he came to know that the amount was recovered from the almirah in the same room. That means he is also not an eyewitness, who pointed out about the book. 19. The evidence of P.W.8 would go to show that at the instance of the accused officer M.O.1-tainted currency notes was seized from Ex.P23 book, but at the same time mere recovery of certain amount at the instance of the accused officer does not mean to infer that the accused officer received the amount towards illegal gratification to show any favour in view of the decision reported in C.M. GIRISH BABU V CBI, COCHIN, HIGH COURT OF KERALA [2], wherein it was held thus: “In Suraj Mal V State (Delhi Administration), this Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.” 20. On the other hand, the evidence of P.Ws. 3 and 5 to 7 and D.Ws. 1 and 2 would go to show that when P.W.1 tried to thrust the amount into the shirt pocket of the accused officer, he refused to receive it and thereafter P.W.1 collected the amount and Chemistry book from the accused officer and went up to the door way of the room and returned back on the ground that he was not having library key to keep the book. Therefore, the trial Court after elaborate consideration of evidence on record, rightly acquitted the accused officer and absolutely, there are no grounds to interfere with the same. 21. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 09-08-2002, in C.C. No.11 of 1998, on the file of the Special Judge for SPE & ACB Cases, Nellore. --------------------- K.C.BHANU, J DATED: 20-11-2009 Hsd [1] AIR 1957 SC 614 [2] (2009) 2 SCC (CRI)1