IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Monday, the 31st Day of May, 2010 Present:- THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 708 of 2003 Between:- Ganta Kailasa Rao …Appellant AND The State of A.P. …Respondent THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 708 of 2003 JUDGMENT: 1. This Appeal is directed against the judgment, dated 17-07-2003 passed in C.C.No.21 of 1998 on the file of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam, whereby and whereunder, the appellant herein was found guilty of the offences punishable under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘Act’). Accordingly, he was convicted for the offence under Section 7 of the Act and sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for fifteen days. He was also convicted for the offence under Section 13 (1) (d) read with 13 (2) of the Act and was sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for fifteen days. Both the substantive sentences were ordered to run concurrently. 2. For the sake of convenience, the Appellant will be referred to as ‘the accused’ hereinafter. 3. The brief facts of the case are as follows: The accused was working as Village Administrative Officer, Kambara village of Veeragattam Mandal in Srikakulam District during the relevant period. He was a public servant within the meaning of Section 2 (c) of the Act. P.W.1 – P.Sai Krishna, P.W.2 – B.Venkata Ramana and P.W.3 – G.Vishnu Murthy, are all residents of Kambara village. They were in need of caste certificates and applied for the same to the Mandal Revenue Officer (hereinafter referred to as ‘MRO’), Veeragattam Mandal. The MRO issued instructions to the Mandal Revenue Inspector to take appropriate steps. Then PWs.1 to 3 approached the concerned Mandal Revenue Inspector, who directed them to obtain signature of the accused and copies of 10 (1) adangals. 4. The further case of the prosecution is that P.Ws.1 to 3 met the accused on 31-08-1997 at about 10:00 AM at his residence and requested to sign on their application forms. It is alleged that the accused demanded bribe of Rs.400/- from each of them. When they pleaded that they were economically backward and could not pay the demanded amount, the amount was reduced to Rs.1,000/- in total and they were directed to pay the amount on 02-09-1997 at or near MRO office or at any place where he will be available on that day. As they were not intending to pay bribe, P.Ws.1 and 2 approached P.W.9, the then DSP, ACB, Vizianagaram, on 01-09-1997 and presented Ex.P-1 – complaint against the accused. It was a joint complaint. Basing on the said complaint, P.W.9 registered a case in Crime No.6/RC-ACB/VZM/97 and issued Ex.P-4 – First Information Report. Then P.W.9 directed P.Ws.1 and 2 to come with the proposed bribe amount on the next day to his office. In the meanwhile, P.W.9 verified the antecedents of the accused and secured the presence P.W.6 and another by name B. Kasiviswanadha Sarma as mediators to the trap. Then P.W.9 introduced P.Ws.1 and 2 to those mediators and vice-versa. As per the directions of P.W.9, the mediators enquired with PWs.1 and 2 about the contents of Ex.P-1. Then P.W.1 produced the currency notes in Rs.100/- denomination. The significance of the Phenolphthalein Powder and the Sodium Carbonate Test were explained and the test was demonstrated. The currency notes were applied with Phenolphthalein Powder and were kept in the shirt pocket of P.W.1 directing him to handover the amount only on the demand of the accused. Before keeping the currency notes in the shirt pocket of P.W.1, all the items were taken out from his shirt pocket. PW-1 was directed not to touch the currency notes. P.W.2 was directed to accompany P.W.1 and to give pre-arranged signal by wiping his face with handkerchief. One constable by name Prasad bearing P.C.No.897 followed P.Ws.1 and 2 to relay the signal to the remaining members of the trap party. Samples of the Sodium Carbonate Solution, Phenolphthalein Powder etc. were preserved and all proceedings were incorporated in Ex.P-9 – first mediators report. The trap party, along with P.Ws.1 and 2, left in two government vehicles and reached Veeragattam by 11:00 AM. Then P.Ws.1 and 2 proceeded to the MRO office and by that time P.W.3 was also present along with the accused. When P.Ws.1 and 2 asked the accused about their work, the accused asked them as to whether they had brought Rs.1,000/- bribe amount demanded by him. P.W.1 answered in affirmative. However, the accused stated that it is not proper place to take bribe amount and asked them to come to R & B Bungalow, which was located at a distance of one furlong from the MRO office. Accordingly, they proceeded to R & B Bungalow. Two constables, namely Prasad and Narayanarao also followed them. After reaching R & B Bungalow and proceeding to suit No.2, the accused asked P.Ws.1 and 2 to pay the bribe amount. Then P.W.1 took out the wad of currency notes of Rs.1,000/- from his left shirt pocket with his right hand and gave it to the accused who received it with his left hand, counted it with both his hands and kept the same in his right side pant back pocket. Then P.W.2 gave pre-arranged signal by wiping his face with the handkerchief and on receiving the signal from P.W.2, constable Prasad relayed the signal to the remaining members of the trap party by raising both his hands. The accused went inside suit No.2 of R & B bungalow and the trap party members also entered into the room and found the accused throwing the wad of currency notes in the lavatory basin in suit No.2 and was trying to flush them out, but in vain. 5. P.W.9 is the Investigating Officer who introduced himself to the accused and secured a glass of water and prepared the Sodium Carbonate Solution and when the accused rinsed his right hand fingers in one of the glasses, the solution turned to pink colour. Then P.W.9 got prepared another glass of Sodium Carbonate Solution and when the left hand fingers of the accused were rinsed into the solution, it also turned into light pink colour. Then he preserved the resultant solutions in two separate bottles, sealed them after affixing the identification slips. The accused was questioned as to why he rushed to the lavatory of suit No.2 of the R & B Bungalow and why he had thrown the currency notes in the lavatory basin and the version of the accused was incorporated in Ex.P-11 – second mediators report. The scene of offence was photographed and it was marked as Ex.P-13. Then the mediators took out the currency notes from the basin of lavatory and the numbers of those currency notes were tallied with the numbers mentioned in Ex.P-9. The said currency notes are M.O.5. The accused was directed to produce the application forms of P.Ws.1 to 3 and the accused produced those application forms. The papers pertaining to P.W.1 are seven sheets, which include Ex.P-2, P-2 (a) (b) (c) and (d), the papers pertaining to P.W.2 include Ex.P-5, P-5 (a), (b) (c) and (d) and the papers pertaining to P.W.3 include Ex.P-7, P-7 (a) and (b). After obtaining necessary sanction and completing the investigation, charge sheet was filed against the accused. 6. The stand of the Accused was that he never demanded any bribe amount from P.Ws.1 to 3 and that they approached him about one and half month prior to the date of trap and subsequently they never met him and only on the date of trap, they met him. It is also his case that since he served attachment notices on the mother of P.W.2 and toldher that her doors would be removed if revenue dues are not paid, P.W.2 bore grudge against him and falsely implicated him in this case with the help of his friends, i.e., P.W.1 and another. 7. Since the accused pleaded not guilty and claimed to be tried for the charges framed against him, the prosecution examined P.Ws.1 to 9, and got marked Exs.P-1 to P-14 and M.Os.1 to 8. On behalf of the accused, DWs.1 to 3 were examined and Exs.D-1 to D-11 were marked. 8. The learned Special Judge, on appreciation of the oral and documentary evidence, believed the case of the prosecution and convicted and sentenced the accused as stated above. 9. The learned senior counsel Sri C. Padmanabha Reddy submitted that the evidence on record shows that the accused never demanded the bribe amount on prior occasions when P.Ws.1 to 3 were in need of caste certificates. It is also argued that the version of the accused is not incorporated in the second mediators report. His main submission is that huge land revenues were due from Kambara village and P.W.5 also visited the said village and arranged a meeting at Rama Mandir and also moved in the village and that the revenue officials were taking steps for the recovery of the revenue dues. It is also submitted that the accused had served notices in Ex.D.7, Exs.D-9 and D-10 and since the attachment notices were served on the mother of PW-2 and the since accused threatened that he would remove the doors of the house of P.W.2 if land revenue dues are not paid, P.W.2 and the family members felt insulted and P.W.2 wanted to take revenge against the accused and that P.W.2, with the help of his close friends i.e., P.Ws.1 and 3, falsely implicated the accused in this case by giving false complaint against him. 10. the Learned Senior Counsel further submitted that the original prosecution case is that P.W.1 – P. Sai Krishna handed over the currency notes to the accused but the charge sheet allegations and sanction order and the original charges framed against the accused go to show that it is P.W.2 – B. Venkata Ramana who had paid the bribe amount to the accused. His main submission is that the fact as to who had paid the bribe amount was not verified by the sanctioning authority and, therefore, it is clear that there is no application of mind in according sanction of prosecution. It is also submitted that the subsequent conduct of P.W.2 in not applying for any job after obtaining the caste certificate supports the version of accused. It is also his submission that the version of P.Ws.1 to 3 is inconsistent as to when the application forms for issuance of caste certificates were handed over to the accused. It is also submitted that the version of P.W.3 before the DSP, ACB, Vizianagaram, in the post-trap proceedings is different from the version given before the Court and that Exs.D.1 and D.2 proves the same. It is also his submission that copies of 10 (1) Adangals are not required for issuance of caste certificates and the version of the prosecution is improbable and unbelievable. It is also his submission that the version of the accused was not incorporated in the post-trap proceedings. It is also argued that mere throwing the wad of currency notes by the accused in lavatory basin of suit No.2 of R & B Bungalow does not mean that he tried to escape from the liability. 11. Learned senior counsel relied on C.M.Girish Babu Vs. CBI, Cochin, High Court of Kerala[1] in support of his contention that it is sufficient if the accused initially succeeds showing that his version is probable. He has also relied on the judgment in the cases V.Venkata Subbarao Vs. State[2] and Om Prakash Vs. State of Haryana[3], in support of his contention that where demand has not been proved, Section 20 of the Act, will have no application and no presumption there under can be raised. 12. Per contra, Sri V.Ravi Kiran Rao, learned standing counsel representing ACB, submits that P.Ws.1 to 3 applied for caste certificates to apply for certain posts and considering the purpose for which caste certificates were needed and their necessity to P.Ws.1 to 3, the accused demanded the bribe amount though he had not demanded bribe amount on earlier occasions when P.Ws.1 to 3 applied for caste certificates for scholarships. It is his main submission that P.Ws.1 to 3 are reliable witnesses and there is nothing to disbelieve their version and that there was no need for them implicate the accused in a false case. It is further submitted that the evidence of mediators and the Investigating Officer proves that when the accused rinsed his fingers in the Sodium Carbonate Solution, the solution turned into pink colour and that even when the inner flap of the pant pocket of the accused was subjected to the test, it gave positive result and these circumstances, coupled with the evidence of P.Ws.1 to 3, clinchingly establishes that the accused demanded and accepted the bribe amount. 13. It is further argued that as far as the version of the accused that the amount received by him is towards the land revenue dues that is payable by the mother of P.W.2 is concerned, that version is highly improbable and has no basis. It is argued that if at all the accused had taken Rs.1,000/- from P.Ws.1 and 2 towards the dues of land revenue, there was no need for him to ask P.Ws.1 to 2 to come to R & B Bungalow for paying the said amount and nothing prevented him from receiving the said amount in the MRO office itself. It is further argued that the accused did not state during post-trap proceedings that the amount received by him pertains to the dues of land revenue and that if at all his version is correct, there is no need for him to throw the currency notes in lavatory basin. It is also his submission that there is no need for P.Ws.1 and 3 to conspire with P.W.2 to implicate the accused in a false case. The application forms submitted by P.Ws.1 to 3 for caste certificates to the MRO and the endorsement of the MRO establishes that P.Ws.1 to 3 were in need of caste certificates. It is also argued that the accused has examined D.W.1 – mother of P.W.2 and D.W.3 – brother of P.W.2 in support of his version, but their evidence also does not reveal that they had developed any kind of enmity towards the accused when the accused had served Exs.D.9 and D.10 – attachment notices on D.W.1. 14. Learned standing counsel further submits that the consistent case of the prosecution is that it is P.W.1 – P. Sai Krishna who had paid the bribe amount to the accused and that P.W.2 – B.Venkata Ramana was only an accompanying witness. It is also his submission that when all other facts have been mentioned in the sanction order, it shows that the sanctioning authority had considered all the facts and applied mind and came to the conclusion that it is a fit case to accord sanction for prosecution. His main submission is that the sanctioning authority has to consider what are the duties of the accused and whether he tried to misuse his office or not and whether the accused had accepted the bribe amount or not and when it appears from the record that the accused had indulged in misconduct of accepting the bribe amount, the sanctioning authority was justified in according sanction of prosecution against the accused. His main submission is that merely because that the name of the bribe giver is incorrectly mentioned in the sanction order, that itself cannot be a ground to quash the entire proceedings. It is also his submission that a mere error or a mistake in the sanction order will not help the accused unless it is shown that such error or mistake has resulted in causing prejudice to the accused. It is also submitted that though there was a mistake in the original charges framed against the accused, the same have been subsequently ratified by the trial Court vide its orders in Crl.M.P.No.847 of 2002 and subsequently the name of P.W.1 – P.Sai Krishna has been substituted in the place of P.W.2 – B.Venkata Ramana in those charges. It is further argued that the accused did not challenge the said order and the said order has become final. It is further argued that if at all any prejudice is caused to the accused, he would have challenged the order of taking cognizance of the offence by the trial Court itself. It is further submitted that Sub-Section 3 of Section 19 of the Act, envisages that the findings, sentence or order passed by the Special Judge for ACB Cases shall not be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. 15. Learned standing counsel had relied on Central Bureau of Investigation, Appellant Vs. V.K.Sehgal and another, respondents[4], State by Police Inspector, Appellant Vs. T.Venkatesh Murthy, Respondent[5], Prakash Singh Badal and another Vs. State of Punjab and others[6] and Paul Varghese Vs. State of Kerala and another[7] in support of his contention. It is his submission that in view of the settled legal position and in view of the mandatory provisions of Section 19(3) of the Act, the appellate Court cannot alter the judgment of the Special Court constituted for trial of ACB Cases, even if it comes to the conclusion that there is an error in the sanction order. It is also his submission that demanding or accepting bribe does not come within the purview of discharging official duties and for such acts, in fact, no sanction is required for prosecuting the accused. 16. In the light of the above rival contentions, the questions that arise for consideration is (1) whether the prosecution has proved its case beyond all reasonable doubt and whether the accused had demanded and accepted the bribe amount; (2) whether the version of the accused is probable; and (3) whether there is any error in the sanction order and if so, whether the proceedings are liable to be quashed on that ground. 17. It is the case of P.W.1 – P.Sai Krishna, P.W.2 – B. Venkata Ramana and P.W.3 – G.Vishnu Murthy that they were in need of caste certificates. P.W.1 was in need of the caste certificate for attending the examinations being conducted by the Staff Selection Commission, P.W.2 was in need of caste certificate for appearing for bank examinations and P.W.3 was in need of caste certificate for applying for Government job. P.W.4 – Doddi Viswanadham was working as MRO, Veeragattam Mandal, during the relevant period. Exs.P.2, P.5 and P.7 are the application forms submitted by P.Ws.1 to 3 respectively for issuance of caste certificates. P.W.4 received the applications on 17.07.1997. He forwarded the same to Mandal Revenue Inspector, Veeragattam Mandal, for enquiry. Then P.Ws.1 to 3 approached P.W.5 – K.Jogarao, Mandal Revenue Inspector. According to P.Ws.1 and 2, when they approached the Mandal Revenue Inspector, he directed them to obtain the endorsement of the Village Administrative Officer on their applications. The further case of P.Ws.1 to 3 is that on 31.08.1997 at 10:00 A.M., they met the accused at his residence and requested him to make necessary endorsement on their applications as required by Mandal Revenue Inspector. Their further case is that then the accused asked P.Ws.1 to 3 to pay Rs.400/- each as bribe. When P.Ws.1 to 3 requested him that they were economically backward and cannot meet his demand, the amount was reduced to Rs.1,000/- in total. It is the case of P.Ws.1 to 3 that the accused directed them to pay the amount on 02.09.1997 at or near MRO office or at any place he may be available on that date. According to P.Ws.1 and 2, when they all discussed the matter and decided to report the matter to the ACB officials, P.W.1 scribed Ex.P.1 – complaint and it was signed by P.Ws.1 and 2. Basing on Ex.P.1 – complaint, P.W.9 – K.P.Eswar, who was working as Deputy Superintendent of Police, ACB, Vizianagaram, registered a case and issued FIR. Then the trap was arranged. P.W.6 – Bonu Simhachalam Naidu and another witness B.Kasi Viswanatha Sharma agreed to act as mediators. The pre-trap proceedings under Ex.P.9 were prepared at the office of the ACB, Vizianagaram, from 06:30 A.M. on 02.09.1997. P.Ws.1 and 2, P.W.6 and P.W.9 have deposed about the pre-trap proceedings. The tainted currency notes were kept in the shirt pocket of P.W.1. P.W.2 accompanied P.W.1 when the trap party proceeded to the MRO office, Veeragattam Mandal. By that time, P.W.3 was also present there. Then P.Ws.1 and 2 met P.W.3 and then all of them approached the accused. The accused, after ascertaining that P.Ws.1 and 2 had brought the bribe amount, told them that it is not desirable to take the amount in MRO office and took them to the nearby R & B Bungalow which is at a distance of one furlong from the MRO office. Then, the accused directed them to pay the amount, P.W.1 took out the tainted currency notes from his shirt pocket with his right hand and handed over the same to the accused in front of suit No.2 in R & B Bungalow. The accused took the tainted currency notes with his both hands and kept the same in his right side pant pocket. Then, P.W.2 gave pre-arranged signal. Immediately, the trap party entered into the R & B Bungalow. On seeing ACB officials, the accused entered into suit No.2 of the R & B bungalow. When the trap party was rushing towards the accused, the accused went inside suit No.2 of R & B bungalow. The DSP, ACB, Vizianagaram, and his staff also entered into suit No.2 of R & B Bungalow. P.W.1 and 2 was directed to wait outside the R & B Bungalow. Then, the post-trap proceedings were conducted. Admittedly, when the accused had rinsed his fingers in the Sodium Carbonate Solution, it turned into pink colour. The tainted currency notes were found on the basin of the lavatory. P.W.6 – mediator also supported the prosecution version. Thus, a critical examination of the evidence of P.Ws.1 to 3 reveals that the accused had demanded the bribe of Rs.1,000/- for signing on their applications for issuing caste certificates and the accused had accepted the tainted currency notes of Rs.1,000/- from P.W.1 in front of suit No.2 of the R & B Bungalow and that the Sodium Carbonate Solution test yielded positive result when both the hand fingers and the inner flap of the pant pocket of the accused was subjected to the test. Of course, the currency notes were recovered from the basin of the lavatory of the R & B Bungalow. The accused also admitted that he had received Rs.1,000/- from P.W.1, but his case is that the amount received by him was towards the dues pertaining to land revenue payable by the mother of P.W.2. Thus, the recovery of the tainted currency notes is proved by the prosecution. The evidence of P.Ws.1 to 3 proves that the accused had demanded the amount for signing on their applications. 18. It is argued that there are some discrepancies in the evidence of P.Ws.1 to 3. It is true that there are some discrepancies with regard to the evidence of P.Ws.1 to 3. P.W.3 admitted in the cross-examination that in the post-trap proceedings when the DSP, ACB, Vizianagaram, examined him, he had stated to the effect that he met the accused at 10:30