*THE HON’BLE SRI JUSTICE K.C.BHANU +CRIMINAL APPEAL No.1410 OF 2002 % Dated : 20.10.2009 #Gedela Madhusudana Rao ..... Petitioner/Accused/Appellant AND $ The Sate, Rep. by the Inspector of Police, Anti Corruption Bureau, Hyderabad. ..... Respondent/Complainant ! Counsel for Petitioner : Sri C. Padmanabha Reddy ^Counsel for Respondent : Sri V. Ravi Kiran Rao <GIST : >HEAD NOTE : ? Cases referred : (1996) 10 Supreme Court Cases 360 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1410 OF 2002 Between: Gedela Madhusudana Rao ..... Petitioner/Accused/Appellant AND The State, Rep. by the Inspector of Police, Anti Corruption Bureau, Hyderabad. ..... Respondent/Complainant The Court made the following: JUDGMENT: This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.), is directed against the judgment, dated 12.12.2002, in C.C.No.14 of 1998, on the file of the learned III Additional District & Sessions Judge-cum-Special Judge for A.C.B. Cases, Visakhapatnam, whereunder and whereby, the appellant/sole accused was found guilty of the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and accordingly convicted and sentenced to undergo Simple Imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default of fine to undergo Simple Imprisonment for a period of one month, under each count. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The Accused Officer worked as a Junior Assistant in ‘E’ Section under the Mandal Education Officer in Mandal Parishad Development Office. He was assigned with the duties of scrutiny of bills like Group Insurance Scheme, Gratuity, Pension and Family Pension etc., pertaining to the retired teachers and the deceased teachers and to pay the amount to the concerned people. Wife of P.W.1 viz., Smt.Balijepalli Krishnaveni, who was working as a Secondary Grade Teacher in Mandal Parishad Elementary School, died on 18.02.1997 while she was in service. P.W.1, being the husband of Smt. Balijepalli Krishnaveni, was entitled to claim the benefits after her death. On 26.05.1997, an amount of Rs.4,332/- was sanctioned under Group Insurance Scheme and the said bill was received in the Mandal Parishad Development Office. Then on 02.06.1997, P.W.1 approached the Accused Officer who was the concerned Clerk and enquired him about the money due to him under Group Insurance Scheme, for which the Accused Officer asked him to pay Rs.600/- to arrange for payment of the money due to him. About 8 days later, P.W.1 again approached the Accused Officer and requested him about the payment which was due under the Group Insurance Scheme. But the Accused Officer informed him that unless he pays the demanded amount, he would not be paid the said amount. On such demand, P.W.1 agreed to pay an amount of Rs.500/- on 16.06.1997. Thereafter, he approached one Sankarayya master and got a report drafted by him and presented the same to the Deputy Superintendent of Police, Anti-Corruption Bureau (for short, ‘A.C.B.’), Visakhapatnam (P.W.5). On 14.06.1997, basing on Ex.P1-report, P.W.5, after verifying the antecedents and genuineness of the complaint, registered the same as case in Crime No.5/TC Asv WLR/97 of PCA and issued First Information Report, which is marked as Ex.P13, and informed P.W.1 to come on 16.06.1997 at 7.30 a.m. On 16.06.1997, P.W.5 called P.W.4 and another, panch witnesses. Then P.W.1 and the mediators were introduced to each other and the complaint was read over to them. They were also explained the purpose and use of Phenolphthalein powder. Then P.W.1 produced the bribe amount of Rs.500/- consisting of all one hundred currency notes. The numbers of the said currency notes were noted and the entire procedure was explained to them. The preliminary panchanama, which is marked as Ex.P10, was drafted. After completing the proceedings at the office, the entire trap party left the office at 10.30 a.m. and reached the Clock Tower, Bheemunipatnam at 11.30 a.m. P.W.1 was instructed to give a signal soon the amount is demanded and accepted. Then P.W.1 and Sankarayya master proceeded towards the office and the rest of the trap party members took their vantage positions. By the time P.W.1 went into the office of the Accused Officer, he found another person sitting with the Accused Officer. When P.W.1 asked the Accused Officer about his payment, he stated that the Mandal Development Officer was not available and asked him to come on the next day. So saying, he came out of the office into verandah and asked P.W.1 whether he brought the amount. Then P.W.1 took out Rs.500/- from his left side shirt pocket and gave it to the Accused Officer and the Accused Officer received the same with his right hand and kept it in his right side trouser pocket. Thereafter, P.W.1 gave a pre-arranged signal by wiping his face. After receiving the said signal, P.W.5 and other trap party members rushed to the premises. P.W.5 disclosed his identity to the Accused Officer. Then the Accused Officer took out the currency notes from his right side pant pocket and threw it on a pad on the table. He was perturbed and started rubbing both his hand fingers to his pant. On seeing that, P.W.5 asked him not to do so and questioned him whether he had received any bribe amount. Then P.W.5 recorded the statement of the Accused Officer in post-trap panchanama, which is marked as Ex.P12. Thereafter, P.W.5 secured two glass tumblers in which the Sodium Carbonate Solution was prepared and made the Accused Officer to rinse his both hand fingers separately in both the tumblers, which turned into pink colour. Thereafter, P.W.5 preserved both the resultant solutions separately in two different bottles and sealed the same, which are marked as M.Os.3 and 4 respectively. Then the numbers of the tainted currency notes were verified and found tallied with the numbers as mentioned in Ex.P10. P.W.5 seized M.O.5-cash. The inner lining of the right side pant pocket of the Accused Officer was also subjected to the Sodium Carbonate Solution test, which turned into pink colour. The resultant solution was collected in another bottle, which is marked as M.O.6. P.W.5 further seized the pant of the Accused Officer, which is marked as M.O.10. Later, P.W.5 recorded the statement of P.W.1 and then he confronted the same with the Accused Officer and recorded the clarification in Ex.P12-Post-trap Proceedings. P.W.5 then examined P.W.2 who was found to be sitting at the table of the Accused Officer. Ex.P4 is his statement. Then P.W.5 seized the Group Insurance Scheme bills, Treasury bill book, tappal register, attendance register, which is marked as Ex.P8, of Smt.Balijepalli Krishnaveni and charges list, which is marked as Ex.P3. P.W.5 then prepared a rough sketch of the scene of trap, which is marked as Ex.P11. Thereafter, P.W.5 arrested the Accused Officer and then the Accused Officer was released on bail. On 17.06.1997, all the material objects and documents were forwarded to the Hon’ble Court. During the course of investigation, P.W.5 examined the relevant witnesses and got their statements recorded through the Magistrate under Section 164 of Cr.P.C. After receiving the sanction order and on completion of investigation, charge sheet was filed. 3. The learned Special Judge for A.C.B. Cases, Visakhapatnam, framed the following charges against the Accused Officer: “Firstly: That you being a public servant i.e. Junior Assistant in the office of Mandal Parishad Development Office, Bheemunipatnam, on or about 6th day of June, 1997 at about 12 Noon in your office, accepted or obtained a sum of Rs.500/- from one Modukuri Durga Prasad, for yourself as gratification other than legal remuneration as a motive or reward for showing an official favour in preparation of the Group Insurance Scheme Bill pertaining to his wife Late Balijepalli Krishnaveni who died on 18.2.97 while in Service working as Secondary Grade teacher in M.P.E.S. of Bodamettapalem village, in the exercise of your official functions and thereby committed an offence punishable Under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. Secondly: That you at the same time and place stated supra, by means of corrupt or illegal mans or by otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs.500/- from one Modukuri Durga Prasad of Vizianagaram and thereby committed an offence specified under Section 13(1)(d) of Prevention of Corruption Act, 1988 punishable Under Sec.13(2) of that Act and within my cognizance.” 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 6 and got marked Exs.P1 to P19, besides case properties M.Os.1 to 10. 5. After closure of the prosecution evidence, the Accused Officer was examined under Section 313 of 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, no oral evidence was adduced except marking Exs.D1 and D2. 6. The trial Court, accepting the evidence of P.W.1 with regard to the demand and also the evidence of P.Ws.4 and 5 with regard to seizure of M.O.5-tainted currency notes from the possession of the Accused Officer, found him guilty of the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Act and accordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the Accused Officer beyond all reasonable doubt for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Act and whether the judgment of the Trial Court is correct, legal and proper? 8. Learned Senior Counsel, Sri C. Padmanabha Reddy, appearing for the Accused Officer, contended that the Accused Officer was not the concerned Officer to deal with the file relating to retirement benefits of the wife of P.W.1; that the Accused Officer was transferred from the concerned Section and P.W.2 was posted in the place of the Accused Officer on 03.06.1997 and as such, the Accused Officer could not pass the bill on 16.06.1997; that on earlier two occasions, admittedly, the Accused Officer paid Rs.30,000/- and Rs.19,000/- towards part payment of the Group Insurance Scheme and on those two occasions, the Accused Officer did not demand any amount from P.W.1; that therefore, demanding money from P.W.1 is quite unnatural and unbelievable; that the alleged demand made by the Accused Officer on 02.06.1997 and 10.06.1997 are proved to be false on own showing of P.W.1; that P.W.1 was approached by one Sankarayya master to settle the differences between Sankarayya master and the Accused Officer; that M.O.5-currency notes have been thrusted into the right side trouser pocket of the Accused Officer, and therefore, he prays to set aside the conviction and sentence recorded against the Accused Officer. 9. On the other hand, Sri V.Ravi Kiran Rao, learned Standing Counsel for A.C.B., contended that there is absolutely no motive for P.W.1 to foist a false case against the Accused Officer; that the earlier version as stated in Ex.P1 would clearly reveal that the Accused Officer was demanding money for showing a favour to P.W.1; that the Accused Officer received the money and kept the same in his right side pant pocket; that the right hand fingers of the Accused Officer and the inner lining of the right side pant pocket of the Accused Officer when subjected to Sodium Carbonate Solution Test, they gave positive result as the solution turned into pink colour; that the trial Court, after elaborate consideration of evidence on record, rightly found the Accused Officer guilty, and hence, there are no grounds to interfere with the same. 10. The essential ingredients of Section 7 of the Act are: i) that the person accepting the gratification should be a public servant; ii) 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. It is not in dispute that the wife of P.W.1 by name Smt.Balijepalli Krishnaveni was working as a Secondary Grade Teacher in Mandal Parishad Elementary School in Bodamettapalem Village, Bheemunipatnam Mandal, Visakhapatnam District. She died on 18.02.1997. P.W.1 who is her husband is the only legal heir, as she had no issues. Because of the death of the wife of P.W.1, certain benefits like Group Insurance Scheme etc., were to be paid to P.W.1. It is not in dispute that prior to the trap, on one occasion the Accused Officer handed over an amount of Rs.30,000/- and on another occasion, an amount of Rs.19,000/- to P.W.1. The Accused Officer did not demand any amount from P.W.1 at those points of time. Similarly, P.W.1 did not pay any bribe to the Accused Officer. It is not in dispute that the Group Insurance Scheme amount was released by the local fund audit. On coming to know about the said fact, P.W.1 went to the Mandal Parishad Development Office, Bheemunipatnam Mandal, on 02.06.1997 and met the Accused Officer and enquired him about the money due under the Group Insurance Scheme. When he asked the Accused Officer to pay that amount which was due to him, the Accused Officer stated that the money will not be paid in hurry and demanded P.W.1 to pay Rs.600/- to him. Eight days thereafter, P.W.1 met the Accused Officer at his office and made a request to see that the money which was due to him was paid, for which the Accused Officer stated that he had already informed him to get the money and unless the money is paid to him as demanded, the amount due to him will not be paid. When P.W.1 pleaded inability to pay that amount, the Accused Officer asked P.W.1 to bring atleast Rs.500/- on 16.06.1997. As P.W.1 was not willing to pay that amount, he approached one Sankarayya master and got drafted Ex.P1-report and handed over the same to P.W.5-Trap Laying Officer. P.W.5 registered a case and summoned P.W.4-Mediator and others and drafted Ex.P10-Pre-trap Proceedings duly noting down the denomination of the currency notes and numbers of the currency notes and gave specific directions to P.W.1 to hand over the tainted currency notes on demand made by the Accused Officer and to give pre-arranged signal. Thereafter, P.W.1 and Sankarayya master proceeded to the office of the Accused Officer, followed by the trap party. When they reached the office, they found the Accused Officer and another person sitting. P.W.1 enquired the Accused Officer about the payment of money due to him under the Group Insurance Scheme, for which the Accused Officer replied that P.W.3-Mandal Development Officer was not available and his work would be completed on the next day. So saying, the Accused Officer came out from the office into the verandah and asked P.W.1 whether he brought the amount demanded by him. P.W.1, while stating that he brought the amount, took out the tainted currency notes and handed over the same to the Accused Officer. The Accused Officer took the tainted currency notes with his right hand and kept the same in his right side trouser pocket. Then P.W.1 gave a pre-arranged signal to the Sub-Inspector of Police, P.Babu Rao, who inturn related the signal to P.W.5-Trap Laying Officer. P.W.5, along with P.W.4 and others, rushed to the verandah and took the Accused Officer to his office room and conducted Sodium Carbonate Solution Test. The right hand fingers gave positive result. Similarly, when the inner lining of the right side trouser pocket of the Accused Officer was also subjected to the Sodium Carbonate Solution Test, the solution also turned into pink colour. The Accused Officer took out the currency notes from his right side trouser pocket and placed on the table drawer. The numbers on the currency notes which were taken by the Accused Officer were tallying with the numbers as mentioned in Ex.P10-Pre-trap Proceedings. Thereafter, the Sub- Inspector of Police drafted Ex.P12-Post-trap Proceedings. 13. Though it is contended that the Accused Officer has nothing to do with processing of the file relating to the wife of P.W.1, but as seen from the evidence, it is clear that ‘E’ Section is the concerned Section to deal with the amounts to be paid to the beneficiaries under the Group Insurance Scheme and Family Benefit Fund Scheme. There is evidence on record which would go to show that the Accused Officer was in charge of ‘E’ Section till 03.06.1997. In his place, P.W.2 was posted. On the date of trap, P.W.2 was taking over the charge of ‘E’ Section seat from the Accused Officer. P.W.2 also admitted that he did not take the file relating to Late Smt.Balijepalli Krishnaveni, wife of P.W.1, into his custody from the Accused Officer. P.W.2 did not support the case of the prosecution and he was declared hostile by the prosecution. When a witness turns hostile, it is settled law that such part of his statement which is consistent with the prosecution or the defence can be accepted. On this aspect, it is pertinent to refer to a decision reported in State of U.P. v. Ramesh Prasad Misra and another[1] “It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.” 14. P.W.3 is the Mandal Development Officer. When P.W.1 met P.W.3 on two occasions prior to the trap, she instructed the Accused Officer to process the file and the amounts legally due to P.W.1 may be paid to him. She categorically stated that the Accused Officer was incharge of the processing work as regards the payment due to the death of wife of P.W.1. She also stated that taking charge between P.W.2 and the Accused Officer was not completed even on 16.06.1997. Therefore, the evidence of P.W.3 is very clear that as on the date of trap, the Accused Officer was dealing with the file relating to the wife of P.W.1 though he was transferred from ‘E’ Section to ‘D’ Section. The factum of transfer of the Accused Officer from one Section to another Section was not known to P.W.1. For that reason, there is every scope or possibility for P.W.1 to approach the Accused Officer to process that file. It is not in dispute that on two occasions, it is the Accused Officer who paid certain amounts towards the part payment of the Group Insurance Scheme and Family Benefit Fund Scheme to P.W.1. For that reason, P.W.1 has to approach the Accused Officer on third occasion also. In such case, there is every possibility for the Accused Officer to demand certain amount because that payment may be a last payment. Simply because the Accused Officer did not demand any amount on earlier occasions when huge amounts have been paid to P.W.1, the same cannot be a ground to disbelieve the evidence of P.W.1 with regard to the demand of Rs.500/- prior to the trap for the purpose of processing the file. The Accused Officer will be having knowledge that the amount to be paid to P.W.1 was the final and full settlement of claim of P.W.1. That is the reason why, there was a scope or possibility for the Accused Officer to demand money to process the file. There must be some reason for P.W.1 to foist a false case of this nature against the Accused Officer. The Accused Officer is totally a stranger to P.W.1. He has no prior enmity or grouse with the Accused Officer. Therefore, in such circumstances, it is most unlikely that he would go to an extent of fabricating a false case against the unknown person. 15. Similarly, P.W.4 is an independent mediator. He categorically stated about the transpiration events scribed in pre-trap proceedings and thereafter, he proceeded to the office of the Accused Officer along with P.W.5 and staff and that after receipt of relative signal from the Sub-Inspector of Police, P.Babu Rao, all the trap party members rushed to the office of the Accused Officer. The Deputy Superintendent of Police took the Accused Officer to the office room at the table and introduced all the trap party members to the Accused Officer. Then the Accused Officer took out the wad of currency notes from his right side trouser pocket and placed them on the table. The Sodium Carbonate Solution Test was conducted on both the hand fingers. The right hand fingers gave positive result. Similarly, the inner lining of the trouser pocket, when subjected to the Sodium Carbonate Solution Test, gave positive result. 16. The evidence of P.W.5, the Trap Laying Officer, is also completely in corroboration with the evidence of P.W.4 with regard to the Accused Officer taking out M.O.5-currency notes from his right side trouser pocket and placing on the table. The recital in Ex.P12 would go to show that after receipt of pre-arranged signal from P.Babu Rao, Sub-Inspector of Police, A.C.B., all the trap party members went to the Mandal Parishad Development Office. Then one person disclosed his name as Gedela Madhusudana Rao. Then P.W.5 took him to the office room and disclosed his identity. Immediately, the Accused Officer stated that he uttered that he was cheated and was found panic. He took out a wad of currency notes from his right side trouser pocket and placed it on a pad on the table. Then he tried to rub his hands to the pant for which he was directed not to do so. 17. The above findings as noted in Ex.P12 are completely in corroboration with the evidence of P.Ws.4 and 5. Even after the lengthy cross-examination, nothing has been elicited to discredit the testimony of P.Ws.4 and 5. The case of the Accused Officer is that P.W.1 was used as a tool by one Sankarayya master who admittedly prepared Ex.P1-complaint because of ill feelings between the Accused Officer and Sankarayya master. No doubt, in the cross-examination of P.W.5, it is elicited that during post- trap proceedings, the Accused Officer consistently stated that Sankarayya master was having animosity against him and that there were disputes. The statement made to P.W.5 by the Accused Officer, no doubt a spontaneous statement but at the same time, it is hear say. If the Accused Officer wants to prove that fact, necessarily he has to adduce the evidence to show that there were ill feelings between the Accused Officer and Sankarayya master. Except giving suggestions to P.Ws.1 and 4 that there were ill feelings between Sankarayya master and the Accused Officer, nothing has been brought on record to show that there were disputes between the Accused Officer and Sankarayya master. It is not in dispute that Sankarayya master was the Secretary of the Teachers’ Association. 18. P.Ws.2 and 3 are the best witnesses to speak about the frequent visits of Sankarayya, if any, to the Mandal Parishad Development Officer, Bheemunipatnam Mandal, in connection with the settlement of the benefits to be payable to the teachers or their legal representatives. P.W.2 was working as a Junior Assistant, whereas P.W.3 was