HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.A.No. 1050 of 2003 Date: 13-04-2010 Between: V. Nageswara Rao Appellant And State rep. by CBI, Hyderabad Respondent HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.A.No. 1050 of 2003 JUDGMENT: This Appeal has been filed against the Judgment, dated 24-09- 2003 in C.C.No.7 of 2001 on the file of the Special Judge for CBI Cases, Hyderabad, whereby and whereunder the Appellant herein was found guilty of the offences under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (for short ‘the Act’). Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/- and in default to suffer simple imprisonment for three months for the offence under Section 7 of the Act. He was also convicted for the offence under Section 13 of the Act and sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.2,000/- and in default to suffer simple imprisonment for three months. Both the substantive sentences were ordered to run concurrently. 2. For the sake of convenience, the Appellant will be referred to as Accused hereinafter. 3. The brief facts of the case are as follows: The Accused was working as Junior Engineer, Q&SC of GE E/M MES, Secunderabad. His duty is to process all the tenders and make payments to the contractors. He was also authorized to recommend for awarding the contract. 4. PW-1 was a registered contractor for Military Engineering Services (MES) in the name and style of M/s Dandapani Traders. He had undertaken three contracts with MES and completed the same. He had also undertaken contract No.75 and completed the work by 29- 06-2000. He had received Rs.4,40,000/- approximately in the shape of instalemnts from MES and the balance amount of Rs.85,000/- was due to him. He submitted the final bill in the month of August, 2000 after taking joint measurements with the departments. The Military Engineering Services called for another contract vide Tender No.8617 and PW-1 submitted the bid for Rs.6,18,000/- approximately. On 20- 11-2000 PW-1 received a letter from MES stating that he was the lowest bidder for Tender No.8617. Then he met the Accused. It is alleged that the Accused started demanding a bribe of Rs.10,000/-. PW-1 also met one A.K. Ajmera, who also demanded him to pay a bribe of Rs.20,000/-. PW-1 again contacted the said Ajmera on 20-11-2000 (28-11-2000) and the said Ajmera informed him on phone to meet him on 29-11-2000. On 29-11-2000, he met the Ajmera, who directed him to meet the Accused, and when he met the Accused, the Accused also informed him that his previous bill with regard to contract No.75 was withheld for nonpayment of bribe. Then the Accused gave his postal address to PW-1 and asked him to meet him at his residence and pay the bribe amount. According to PW-1 he had learnt from the television advertisement that the CBI conducts raid if a bribe is demanded by the public servants. 5. Since PW-1 was not intending to pay the bribe amount, on 02-12-2000, he visited the CBI office and lodged a complaint against A.K. Ajmera and the Accused. The complaint was received by PW-8, E.K. Anuj Kumar, the then Inspector of Police, CBI, Hyderabad, and he registered a case in R.C.No.30 (A)/2000 under Section 7 of the Act on 02-12-2000 and issued FIR. 6. Then the trap was arranged. PW-2, who was working as Hindi Translator in the office of the Official Liquidator and one P. Chandra Babu from Income Tax Department acted as mediators. PW-1 was introduced to the mediators and vice versa. PW-1 produced an amount of Rs.10,000/- and the numbers of those currency notes were mentioned in the first mediators report. Then the sodium carbonate solution was prepared, and the phenolphthalein test was demonstrated and its significance was also explained to the mediators. Then the currency notes were tainted with the phenolphthalein powder and they were kept in the pant pocket of PW- 1 directing him to pay the same only on demand by the Accused. The pretrap proceedings were conducted in a room provided by the RPF, Secunderabad. Then the trap party along with PWs.1 and 2 proceeded to the house of the Accused in a car and reached the house of the Accused at about 8-50 or 9-00 PM. 7. PWs.1 and 2 went to the house of the Accused and the trap party members took vantage position. The Accused was present in the house. PW-2 was introduced to the Accused as a cousin of PW- 1. Since there were some relatives in the house of the Accused, he took them to the terrace and chairs were arranged. After questioning whether PW-1 had paid the amount to A.K. Ajmera, the Accused demanded to pay Rs.20,000/-. Then PW-1 told the Accused that as per the earlier agreement he had brought only Rs.10,000/- and when the Accused insisted for payment of Rs.20,000/-, PW-1 promised to pay the remaining amount within one or two days. Then the Accused demanded him to pay the agreed amount of Rs.10,000/-. PW-1 took the tainted currency notes with his right hand and handed over the same to the Accused and the Accused received the amount with his right hand. 8. Then PW-2 got down from the terrace and gave prearranged signal. The trap party rushed to the Accused and questioned him whether he had demanded and accepted Rs.10,000/-. PW-8 and other CBI staff had caught hold both the hands of the Accused above wrist and as there was no sufficient light, the Accused was brought into his house. Then the sodium carbonate solution was prepared and when the Accused rinsed his right hand fingers, the solution turned to pink colour. However, when the Accused rinsed his left hand fingers, there was no change in the colour. Then the Accused was asked to produce the bribe amount and he produced the currency notes from his shirt pocket. The currency notes were counted and their numbers tallied with the numbers noted in the first mediators report. The shirt pocket of the Accused was subject to sodium carbonate solution, which gave positive result. The resultant solutions of the shirt pocket, and the both hands wash were preserved, packed and sealed in separate bottles. The statements of PWs.1 and 2 and the Accused were recorded and the rough sketch of the scene of offence was prepared. The second mediators report was prepared. Then PW- 8 along with other mediators went to the office of the Accused and seized file No.8504/E-8 on 02-12-2000 in the presence of two mediators under seizure of memo. PW-9, T.S.C. Bose, the then Deputy Superintendent of Police, CBI, Hyderabad, conducted the remaining investigation. He examined PWs.7 and 8 and recorded their statements. After obtaining sanction order, he filed the charge sheet against the Accused. 9. Since the Accused pleaded not guilty and claimed for trial, the prosecution examined PWs.1 to 10 and got marked Exs.P-1 to 24. On behalf of the Accused, DW-1 was examined and Exs.D-1 and D-2 were got marked. 10. The learned Special Judge, on appreciation of the evidence, found the Accused guilty of the charges framed against him and accordingly, convicted and sentenced him as stated above. 11. The learned Senior Counsel Sri C. Padmanabha Reddy appearing on behalf of the learned counsel Sri C. Praveen Kumar for the Accused submitted that PWs.1 and 2 are the highly interested witnesses and therefore, the learned Special Judge ought not have placed reliance on their evidence. It is further argued that the tender in respect of contract No.8617 was already cleared in favour of PW-1 by 23-11-2000 and therefore, it is absurd to say that the Accused demanded bribe for recommending the said tender. It is further argued that the Accused was not the authority to pass the final bill and it was submitted in the office of the Assistant Garrison Engineer and was lying there till the date of trap and therefore, it is most improbable to say that the Accused demanded bribe amount for finalization of the bill amount in respect of contract No.75. It is further argued that according to Ex.P-2, the demand was made on 20-11-2000, but PW-1 stated in his evidence that the demand was first made on 29-11-2000 and the version of PW-1 that the Accused made the demand first on 29-11- 2000 is not mentioned in Ex.P-2 and the learned Special Judge failed to notice that the date of demand has been interpolated in Ex.P-2 and that the major discrepancies in the evidence of PWs.1 and 2 were not considered. 12. The learned counsel further submitted that according to PW-2, the left hand wash of the Accused did not give positive result, when subjected to phenolphthalein test, but according to PW-1, the left hand wash also gave positive result. It is further argued that PW-1 had lodged complaints against number of officials on the same day and that he was a litigant. It is also argued that the Accused had not completed the work of contract No.75 and the department was insisting to complete the work and as the Accused thought that it was not possible to complete the work, he lodged a false complaint against the Accused and other officers. It is also argued that according to PW-1, the Accused counted the currency notes with his both the hands and in the circumstances, the hand wash of both the hands shall give positive result, whereas only right hand wash gave positive result and this circumstance also shows that the version of PW-1 cannot be believed. 13. The learned counsel further argued that mere recovery of amount is not sufficient to prove the case of the prosecution in the absence of the demand. It is also argued that according to PW-2, the currency note numbers were written in a separate sheet and thus the version of PW-2 is contrary to the case of the prosecution that the currency notes numbers were mentioned in the first mediators report and not on separate sheet. It is also argued that on 29-11-2000, the Accused was in Bangalore and the evidence of DW-1 was clinchingly establishes that the same, and therefore, the question of the Accused demanding bribe on 29-11-2000 does not arise and it is proved to be false. It is also submitted that the major discrepancies in the evidence of the prosecution witnesses were not considered by the learned Special Judge and therefore, the Judgment of the learned Special Judge cannot sustain and the same is liable to be set aside and the Accused is entitled for acquittal. 14. Per contra, Sri P. Kesava Rao, the learned Special Standing Counsel for CBI, argued that when once it is proved that the tainted amount has been recovered from the possession of the Accused and the phenolphthalein test proved to be positive, the only presumption that can be drawn is that the Accused had accepted the illegal gratification and the prosecution need not prove that any official favour was pending with the Accused. He further argued that merely because there is some discrepancy with regard to the date of demand, the evidence of PW-1 cannot be disbelieved. It is further argued that admittedly the final bill in respect of No.75 was not paid to PW-1 and it was kept pending for months together and PW-1 was given an impression that the payment for the final bill will not be made unless and until the demand of the Accused is met. It is also argued that the learned Special Judge has considered the entire material in proper perspective and reached the correct conclusions and there are no grounds to interfere with the same. 15. In the light of the rival contentions, the point arises for consideration is: Whether the prosecution proved the guilt of the Accused beyond reasonable doubt and whether the conviction and the sentences passed against him are liable to be set aside or confirmed? 16. It is not in dispute that the Accused was working as Junior Engineer and he was a public servant. According to PW-1 he had completed the work of contract No.75 by 29-06-2000 and had already received Rs.4,40,000/- in instalments and the remaining amount due to him was Rs.85,000/-. He submitted the final bill for the said amount in August, 2000. He says that he was visiting the office of the Accused, but the payment of the balance amount was not made and the Accused used to direct him to meet Garrison Engineer Mr. A.K. Ajmera. He further deposed that on 20-11-2000, he received a letter from MES that he was the lowest bidder for Tender No.8617 and he was asked to meet the concerned officers and obtain necessary papers. PW-1 says that the Accused started demanding money for approving the Tender No.8617 and further informed him that the final payment of the bill will not be made unless a bribe of Rs.10,000/- was paid. It is alleged that the Accused took PW-1 into the cabin of A.K. Ajmera and the said Ajmera told PW-1 that his share of bribe will be Rs.20,000/- and Rs.10,000/- separately to be paid to the Accused. A.K. Ajmera asked PW-1 to contact him on telephone and then meet him. PW-1 contacted A.K. Ajmera on 20-11-2000 (28-11-2000), who informed PW-1 to meet on 29-11-2000. Accordingly, PW-1 met A.K. Ajmera on 29-11-2000 at 9-30 AM in his office cabin. According to PW-1 he informed A.K. Ajmera that so far he completed three contracts, but there was no occasion for him to pay the bribe to anyone. He also told that since his work was appreciated by the department, he did not pay any bribe to anyone. A.K. Ajmera informed PW-1 that it is compulsory for him to pay bribe hereinafter and called the Accused inside his cabin at about 10-15 AM, and asked him to discuss with the mode and manner of payment of bribe by taking PW-1 to the chamber of the Accused. 17. PW-1 had already completed three works. He had specifically deposed that there was no occasion for him to pay any bribe on the earlier occasions. Since according to PW-1, A.K. Ajmera informed him to meet on 29-11-2000, most probably the earlier date must be 28-11-2000. According to PW-1 he met A.K. Ajmera on 29- 11-2000 at about 9-30 AM and on that day the Accused demanded to pay the bribe amount. Again PW-1 deposed that on 29-11-200 and 30-11-2000, he was not feeling well and therefore, he did not go out of the house. He says that on 02-12-2000, he approached the CBI officials and lodged Ex.P-1 complaint. As seen from the contents of Ex.P-2, on 20-11-2000 PW-1 approached the Accused for finalization of the payment of balance amount and for accepting the Tender No.8617 and then the Accused demanded Rs.20,000/- bribe for clearing both the files. According to PW-1, the Accused directed him to bring the bribe amount on 29-11-2000 between 5-00 to 7-30 PM and to handover the same at his residence. According to PW-1 on 20-11- 2000, he received a letter stating that he was the lowest bidder for Tender No.8617. As far as the date of demand is concerned, PW-1 did not specifically state that the date of demand is 20-11-2000, in his chief-examination. However, in the cross-examination, he stated that the first demand was made on 20-11-2000. 18. Therefore, a reading of the entire evidence of PW-1 gives an impression that the demand with regard to the payment of bribe was made with one A.K. Ajmera on 29-11-2000 since he called the Accused inside his cabin at about 10-15 AM and asked to discuss with PW-1 about the mode and manner of payment of bribe amount. PW-1 further deposed that on the same day, the Accused informed him that in the event of nonpayment of the bribe amount, his payments will be withheld. Therefore, according to PW-1, the discussion with regard to the mode and manner of payment and consequences upon the payment of bribe were made on 29-11-2000. PW-1 meeting A.K. Ajmeera and then meeting accused and discussing about the mode and manner of payment of bribe has been missing in Ex.P-2. If at all the incidents as spoken by PW-1 had occurred on 29-11-2000, PW-1 would not have failed to mention the same in Ex.P-2. 19. The other circumstance in favour of the Accused is that admittedly, he had already recommended Tender No.8617 in favour of PW-1 and the Accused was not the authority to pass the final bill. Thus it appears that practically no official favour was pending with the Accused on the date of trap. Of course in all cases there need not be any official favour pending, but if at all the accused had given an impression that he could manage the official favour, that would be sufficient. 20. As far as the date of incident on 29-11-2000 is concerned, we have the evidence DW-1. It is the settled law that there cannot be any discrimination between the evidence of the prosecution and defence witnesses. All are witnesses before the Court and their evidence has to be appreciated equally. Merely because one witness is examined on defence side, his evidence should not be looked with suspicious eye. 21. In this case, the Accused examined DW-1. DW-1 was the Inspector of Police, Anti corruption branch, CBI, Hyderabad. He says that he registered a case in R.C.No.27(A)/2000, dated 24-11- 2000 of S.P., CBI, Bangalore against one Gupta, N.K. Singh and B.S. Rao, all were working in MES. He further deposed that on 29-11-2000 he has examined PW-1 and recorded his statement at Bangalore at his residence. He further deposed that the Accused utilized his residential telephone for four times on 29-11-2000 between 11-30 AM and 2-00 PM. 22. Thus the evidence of DW-1 shows that there is no possibility for the Accused to be present at Secunderabad on 29-11-2000 since he was at Bangalore on that day. In view of the above discussion, it appears that there is no satisfactory evidence to prove the demand and acceptance of the bribe amount by the Accused in this case. 23. As far as the trap is concerned, it is also not free from suspicious circumstances. There are certain major contradictory versions which cannot be treated as minor. It is not in dispute that after the arrival of the mediators, what all transpired in their presence before the trap has to be incorporated in the pre-trap proceedings which is known as first mediators report. Ex.P-3 is the first mediators report. PW-2 had categorically deposed that the currency notes numbers were mentioned in a separate sheet. He says that during the post trap proceedings also, the currency notes numbers were mentioned in separate sheet. However, the first mediators report (Ex.P-3) and second mediators report (Ex.P-4) go to show that the currency notes numbers were noted in those reports, but not on separate paper. 24. According to PW-1, the Accused received tainted currency notes with the right hand and counted the same with his both hands and put those currency notes in his shirt pocket. He categorically deposed that the right hand wash changed into pink colour and since the notes were counted, the left hand solution also changed to pink colour. According to PW-2, the right hand wash of the Accused changed to pink colour, but the left hand wash remained colourless. According to PW-8, the Investigating Officer, only the right hand wash of the Accused gave positive result and the left hand wash did not give any positive result. The evidence of PWs.1 and 2 is contradictory on this major issue. The contradiction with regard to whether the wash of one hand or the wash of the both the hands turned to pink cannot be treated as a minor one since the same shows what transpired when the alleged bribe amount was handed over to the Accused and how he dealt with the same. The second mediators report also shows that only the right hand when dipped into the sodium carbonate solution, it turned into pink colour. The only reasonable conclusion that can be drawn is that the version of PW-1 that the Accused counted tainted currency notes with his both hands must be false or he would not have witnessed the conducting of test. 25. As far as the date of demand is concerned, the evidence of PW-2 cuts the case of the prosecution since he had admitted that no date of demand of bribe by the Accused is mentioned in Ex.P-2. According to PW-4, after completion of the work, PW-1 sent a letter on 29-06-2000 stating that he had completed the work and the said letter was forwarded to Garrison Engineer on 03-07-2000. He says that Ex.P-7 is the letter wherein it is mentioned that the rectifications/defects have to be attended. He says that on that Mr. A.K. Kohli issued completion certificate subject to the rectifications to be attended by PW-1. As seen from the contents of Ex.P-11, PW-1 was directed to attend certain rectifications. Thus it appears that in the completion of work certificate issued to PW-1, certain defects were found out and he was directed to attend those defects. According to the learned Standing Counsel, PW-1 may not know that the Accused had already recommended his case in respect of Tender No.8617. That may be a fact, but the case of PW-1 that the Accused stated that his work will not be completed unless the bribe amount is paid, appears to be improbable that the Accused after recommending the case of PW-1 demanded the bribe amount. If at all the Accused wants to insist for payment of bribe amount, he had an opportunity to retain the file with him till he was paid the bribe amount, but that was not happened. Therefore, this circumstance is also in favour of the Accused and against the prosecution. 26. According to PW-8, the Investigating Officer, he is not aware whether the Garrison Engineer was the competent authority for finalization of the bill and acceptance of the tenders. 27. Thus, as seen from the above evidence, though PW-1 deposed that the major incident of demanding bribe occurred on 29- 11-2000, this fact is not mentioned in his earliest report to the CBI. The prosecution version with regard to the date of demand itself becomes suspicious. Similarly whether the Accused accepted the amount with his right hand or whether he counted the same with both the hands also differs from witness to witness and from oral evidence to documentary evidence. In the circumstances, the suggestions given to PW-1 that the amount was thrusted into the pocket of the Accused assume importance. In view of the circumstances that no official favour was pending with the accused and that the passing of the final bill was not in the hands of the Accused and that he had already recommended the case of PW-1 with regard to Tender No.8617 and when there is discrepancy with regard to the actual date of demand, I am of the considered view that the prosecution failed to prove that the Accused demanded illegal gratification from PW-1. Moreover, there is strong evidence in this case i.e., the evidence of DW-1 that the Accused was in Bangalore on 29-11-2000 i.e., the date on which the Accused is alleged to have demanded the bribe amount. 28. It has to be seen that PW-1 seems to have lodged several complaints on the same day against the some other officials. Ex.D-2 is the FIR issued against one N.K. Singh, Junior Engineer of Garrison Engineering on 24-11-2000 and the contents of Ex.D-2 reveal that the complaint was lodged by PW-1. If that is the case, the version of PW-1 that after 29-11-2000 he saw some T.V. advertisement informing that CBI conducts raid whenever the bribe is demanded by public servants, falls to ground since he had already lodged a complaint by