HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.No. 466 of 2002 DATE: 10-03-2010 Between: G. Vittal S/o Gurupadappa Appellant And The State of A.P. rep. by its Public Prosecutor Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.No.466 of 2002 JUDGMENT: This Appeal is directed against the Judgment, dated 03-05-2002 in C.C.No.7 of 1998 passed by the learned Principal Special Judge for SPE & ACB Cases, Hyderabad (hereinafter referred to as ‘learned Special Judge’) whereby and whereunder the appellant was found guilty for the offences 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 and sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.250/-, in default to suffer rigorous imprisonment for two months for the offence under Section 7 of the Act and further convicted and sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.250/-, in default to suffer rigorous imprisonment for two months for the offence under Section 13 (1) (d) read with 13 (2) of the Act. Both the substantive sentences were ordered to run concurrently. 2. The brief facts of the case are as follows: For the sake of convenience, the appellant hereinafter will be referred to as accused. The Accused was working as Supernumerary Junior Assistant in the office of the Mandal Revenue Officer, Nangnoor Mandal and was incharge of the post of VAO of Narmetta village from 04-09-1987 to 20-12-1996. The complainant by name Nayani Sreenivasa Reddy (PW-1) is a resident of Narmetta village. He purchased land measuring Ac.1-29 guntas in Sy.No.312/U and 312 (A) in the year 1987 from Nayani Bhoopathi Reddy (PW-2) and Nayani Mallavva of the same village under registered sale deeds and approached the accused to enter his name in the pattedar passbook under ROR to be issued to him in respect of the said lands. It is alleged that the accused demanded bribe of Rs.1,000/- for entering the name of PW-1 in the pattedar passbook in respect of the above lands and PW-1 expressed his inability to pay the said amount. Subsequently, PW-1 paid Rs.640/- towards valuation fee in the treasury and handed over the challan to the accused with a request to make necessary entries showing the purchase of land in ROR and to issue pattedar passbook. The Accused reiterated his demand and when PW-1 met the Accused in Bharath Nagar, Siddipet, and expressed his inability to pay Rs.1,000/-, the Accused reduced the amount to Rs.600/-. On 19-11-1996, the accused reiterated his demand when PW-1 met him. Since PW-1 was not willing to pay the bribe amount to the Accused, he approached the DSP, ACB, Nizamabad on 19-11-1996 and presented a complaint (Ex.P-1). PW-9, who was working as Inspector of Police, ACB, as per the directions of DSP, caused discreet enquires with regard to the genuineness of the complaint and intimated the same to PW-8, the DSP, Nizamabad. Thereupon PW-8 registered the case in RC.No.7/CAN-NZB/96 for the offences under Sections 7, 11 and 13 (2) read with 13 (1) (d) of the Act and issued FIR under. Then he secured the presence of two persons i.e., V. Rajamouli and A. Muralidhar (PW-3), who were working as Lecturers in Commerce at Government Degree College, Siddipet, to act as Mediators and introduced PW-1 to them. After following the usual procedure i.e., explaining the significance of phenolphthalein test and after demonstrating the test, noting down the numbers of the currency notes, applying the phenolphthalein powder to the currency notes and after keeping the tainted amount in the shirt pocket of PW-1 and giving specific instructions to him to pay the same only on demand by the accused and after giving further instructions to PW-3 to give prearranged signal to the trap party, the first mediators report under Ex.P-12 was prepared. 3. Then the trap party proceeded to the house of the Accused and when reached a place near to the house of the accused, PWs.1 and 3 got down from the jeep and as per the instructions of PW- 8, they went to the house of the Accused at about 8-00 PM. PW-1 went inside the house of the Accused and PW-3 was waiting outside. PW-4, Md. Nazeeb Ahmed and PW-5, D. Anjam Raju, were present in the house of the Accused. PW-1 enquired the Accused regarding the passbook and took out Rs.600/- from his pant pocket and handed over the same to the accused and the Accused received the bribe amount. Then PW-1 came out and gave prearranged signal to PW-8. After introducing himself and mediators, PW-8 got prepared sodium carbonate solution in two tumblers and subjected both the hand fingers of the accused separately to the test and both hand washes turned into pink colour. The resultant solutions were separately sealed and labeled. Then one of the mediators, as per the instructions of PW-8, verified the numbers of the currency notes, which tallied with the numbers noted in the first mediators report, and after following the due procedure, examining the Accused and PWs.1 and 3, the second mediators report was prepared and what was stated by the Accused and PW-1 was incorporated in the said report. PW-8, the DSP, ACB, also examined the other two persons sitting along with the accused at the time of trap and got incorporated their version in the second mediators report. Then he seized the documents pertaining to the issuance of the pattedar passbook to PW- 1 from the house of the Accused i.e., Exs.P-3 to P-11. PW-9 took further investigation in this case, examined PWs.1 to 6 and after securing the analyst reports and sanction order to prosecute the accused, he filed charge sheet. 4. Since the accused pleaded not guilty and claimed to be tried for the charges framed against him for the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Act, the prosecution examined PWs.1 to 9 and got marked Exs.P-1 to P-20 and M.Os.1 to 6. On behalf of the Accused, DW-1 was examined, but no documents were marked. 5. The learned Special Judge, after considering the material on record, believed the case of the prosecution and negatived the version of the Accused that the amount of Rs.600/- received by him is towards loan advanced by him, and accordingly, convicted and sentenced him as stated above. 6. The learned counsel for the accused, Sri K. Surender, argued that the learned Special Judge failed to consider the important circumstance that no official favour was pending with the accused. It is submitted that only after the MRO (Tahsildar) issues orders to effect the entries in the records, the accused would be in a position to make entries in the pattedar passbook under ROR and no such orders were issued by the MRO by then. He further contended that when the accused had no role to pay in doing official favour, the question of demand for bribe or accepting the same does not arise. He placed reliance on STATE OF PUNJAB v. SOHAN SINGH [1]. 7. It is further contended that the learned Special Judge failed to observe that there is no demand by the Accused and that mere acceptance of bribe amount would not attract the ingredients of the offences charged against the Accused. In supported of his contention, he relied on SURAJ MAL v. STATE (DELHI ADMN) [2]. 8. The learned counsel for the Accused relied on SUDERSHAN PAREEK v. STATE OF ANDHRA PRADESH [3] in support of his contention that heavy duty cast upon the prosecution to prove the demand and acceptance. Either of two if not established, the accused cannot be held guilty of the offence punishable under Section 13 (1) (d) read with 13 (2) of the Act. 9. It is further argued that when the demand itself is not proved, the question of raising presumption under Section 20 of the Act does not arise. In support of his contention, he placed reliance on V. VENKATA SUBBARAO v. STATE [4]. It is also argued that the defence of the accused does not require the same standard of proof, as is required to prove the prosecution case. 10. It is further contended by the learned counsel for the Accused that admittedly PWs.1 and 2, who are the important material witnesses, turned hostile and did not support the case of the prosecution and therefore, the evidence of the other witnesses is doubtful. In support of his contention, he placed reliance on GADDAM MUTYALA RAO v. STATE OF A.P. [5]. 11. The learned counsel for the Accused also contended that when the accused had taken a specific plea and adduced evidence, the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution witnesses. In support of his contention, he placed reliance on STATE OF HARYANA v. RAM SINGH [6]. 12. It is further submitted that the learned Special Judge has mainly relied on the circumstance that Exs.P-3 to P-11 were found in the house of the Accused, but there is no seizure of Exs.P-3 to P-11 at the instance of the Accused and in the absence of any seizure within the meaning of Section 27 of the Act, no reliance can be placed in finding Exs.P-3 to P-11 in the house of the Accused. It is also submitted that the version of the prosecution is not believable since nobody would accept the bribe in the presence of others and in this case admittedly PWs.4 and 5 were present in the house of the Accused when he is alleged to have accepted the bribe amount and such version is improbable and against the normal human conduct. 13. The main contention of the learned counsel for the accused is that when the defence witness (DW-1) had categorically deposed that the amount received by the accused was sent by him towards discharge of the loan amount given to PW-1 by the accused and that the Accused had received the same as a loan amount and not as bribe amount and in the absence of demand, the learned Special Judge ought to have believed the defence version. 14. It is also submitted that where the witnesses make two inconsistent statements in their evidence, the testimony of such witnesses becomes unreliable and untrustworthy of credence. In support of his contention, he relied on SURAJ MAL’s case (2 supra). 15. The learned counsel also contended that the Accused need not explain his case at the time of trap itself, but the statement given by him at the time of his 313 Cr.P.C. examination can be taken into consideration. In support of his contentions, the learned counsel relied on M. ABBAS v. STAET OF KERALA [7]. 16. It is also argued that the lower Court observed that no suggestion was given to PWs.1 and 2 with reference to the defence version. But there is no such need since PWs.1 and 2 had turned hostile and did not support the case of the prosecution. Thus, his submission is that when PWs.1 and 2 have turned hostile, there is no need to suggest them the defence case. 17. It is further argued that the motive and conduct of PW-1 cannot be assessed and the accused may not be in a position to explain as to why PW-1 behaved in such a manner. It is further argued that when PW-1 turned hostile, no reliance can be placed on the complaint lodged by him with the ACB officials. It is also argued that according to PWs.4 and 5, the accused asked PW-1 whether he had brought the money and the words ‘whether PW-1 brought the money’ relate to the loan amount and not the bribe amount and thus the evidence of PWs.4 and 5 supports the defence case. It is further argued that according to PW-1, everything was done by one Ram Reddy and in such circumstances, it is not safe to convict the accused. It is also argued that the statements made by PW-1 under Sections 161 and 164 of Cr.P.C. cannot be looked into. It is also submitted that the defence version is more probable and in villages for receiving the amount, no vouchers will be executed and no receipts will be passed and merely because there is no receipt or voucher, the defence version cannot be disbelieved. 18. The learned counsel for the Accused also submits that the evidence shows that PW-2 also accompanied PW-1 to the ACB officials, but it is denied by PW-8 and as there are improbabilities in the case of the prosecution, it cannot be accepted. 19. Per contra, Sri V. Ravi Kiran Rao, the learned Special Public Prosecutor for ACB argued that admittedly PW-1 has submitted an application to make entries in the pattedar passbook in respect of the land purchased by him from PW-2. It is further submitted that the Accused was purposefully delaying the proceedings and he was not making any enquiries. It is further submitted that though the accused was not authorized to make entries in the pattedar passbook till the MRO/Tahsildar passes necessary orders, the file was pending with the accused and it was the accused who had to approach the MRO and obtain necessary orders and since the accused was in a position to give an impression that he was able to do official favour or to get the work done, that itself is sufficient for the accused to demand bribe though he was not be in a position to do official favour. It is also argued that PW-1 need not be aware of the procedure for making entries in the pattedar passbook and whether the MRO had passed orders or not. It is further argued that PW-1 had no grudge against the accused and there was no need for him to give false complaint to the ACB officials. It is further argued that the defence version is totally improbable and except the evidence of DW-1, there is nothing on record to show that PW-1 had taken a loan amount from the accused through DW-1 and in fact the accused had no knowledge that DW-1 was sending the amount of Rs.600/- through PW-1 and in such circumstances, there is no need for the accused to ask PW-1 “did you bring the amount”. 20. It is further argued that the circumstance that the file was pending with the Accused and the words used by the Accused “did you bring the money” clearly establishes the demand made by him. 21. It is also argued that though PWs.1 and 2 have turned hostile and did not support the prosecution, the settled legal position is that the portion of the evidence of such witnesses can be accepted, of course cautiously. In support of his contention, the learned Public Prosecutor placed reliance on BALU SONBA SHINDE v. STATE OF MAHARASHTRA [8]. 22. It is also submitted that the Accused did not give spontaneous explanation. It is also argued that when once the money was recovered from the possession of the accused, the burden under Section 20 of the Act shifts upon him. In support of his contention, the learned Public Prosecutor placed reliance on KRISHNA RAM v. STATE OF RAJASTHAN [9]. 23. It is also argued that every acceptance of illegal gratification whether preceded by demand or not would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13 (1) (d) of the Act. In support of his contention, the learned Public Prosecutor placed reliance on STATE REP. BY INSPECTOR OF POLICE, PUDUKOTTAI, TAMIL NADU v. A. PARTHIBAN [10]. 24. The accused, in reply, submitted that when two views are possible, the view in favour of the accused should be taken. Reliance is placed on SOHAN SINGH’s case (1 supra). 25. In the light of the rival contentions, the points that arise for consideration are: 1. Whether the accused was in a position to do official favour to PW-1? 2. When PWs.1 and 2, who are the material witnesses, have turned hostile, whether their evidence can be appreciated and if so, on what principles? 3. Whether the plea of the accused that the amount received by him is towards repayment of loan can be accepted? and 4. Whether presumption under Section 20 of the Act could be raised in the facts and circumstances of the case? 26. PW-1, N. Srinivasa Reddy, is the residence of Narmetta village of Nangoor Mandal, Medak District. He purchased the land measuring Ac.1.29 guntas in Sy.Nos.312/U, 312/A in the year 1987 from Nayana Bhoopathi Reddy (PW-2) and Nayani Mallavva of the same village. These lands are in his possession. He approached the accused for making necessary entries in the pattedar passbook under ROR and submitted necessary application. He lodged Ex.P-1 complaint to ACB officials, which bears his signature. Ex.P-1 was drafted by PW-2. PW-3, one of the mediators, accompanied him to the house of the Accused to witness the demand and payment as per the instructions of the DSP. They went to the house of the Accused and reached there at about 8 or 9 PM. He enquired with accused regarding the passbook and handed over proposed bribe amount of Rs.600/- taking it from his pant pocket. The Accused received the bribe amount. Along with the Accused, two or three other witnesses were also present in the said house. 27. According to PW-2, he is working as a Teacher and that PW-1 is his brother-in-law and that PW-1 purchased 23 guntas of land in S.No.312/E and Ac.1-06 guntas of land in S.No.312 and that PW-1 and himself approached the Accused who was working as Junior Assistant/VAO and requested him to make necessary entries in Ryth passbook of PW-1. He further deposed that the accused told to pay certain expenditure without giving the particulars of quantum of bribe amount. His further case is that after some days, PW-1 approached him along with his junior paternal uncle and told him that the Accused did not consider their demand and that he drafted Ex.P-1 as per the directions of Ram Reddy and explained the contents of the same to PW-1. 28. According to PW-3, the mediator, on 21-11-1996 as per the instructions of the Principal, he appeared before the DSP, ACB, Siddipet and the DSP introduced PW-1, to him. Then PW-1 produced Rs.600/- in Rs.100/- denomination and as per the instructions of the DSP, ACB, they have noted down the numbers of those currency notes in Ex.P-12, first mediators report. The currency notes were tainted with phenolphthalein powder. The significance of the test was explained and demonstrated to them. PW-3 was directed to accompany PW-1 and also directed to give signal as soon as PW-1 comes out of the room of the accused by wearing his spectacles. After following the usual procedure and preserving the samples of the phenolphthalein powder and sodium carbonate solution in M.Os.2 and 3 respectively, PWs.1 and 3 and the trap party headed by PW-8, proceeded to the house of the Accused. PWs.1 and 3 alighted the jeep and went towards the house of the accused. The other members of the trap party followed them. PW-1 went into the house of the Accused and PW-3 waited outside. Within two or three minutes, PW-1 came out and gave prearranged signal. On seeing that, the trap party entered into the house of the accused. POINT NO.1: 29. PW-1 approached the accused with a request to make necessary entries in the pattedar passbook under ROR. PW-6, the then MRO of Nangnoor, deposed that Ex.P-3 is the pattedar passbook and Ex. P-4 is the title deed issued by their office to PW-1. Ex.P-5 is the application and form-10 made by PW-1. PW-1 also applied for 13-A form addressed to Sub-Registrar, Siddipet for verification of the basic value as on the date of purchase of the land by giving particulars of the stamp duty and registration charges. Under Exs.P-8 and P-10, PW-1 paid the requisite challan fee by remitting into sub-treasury. The concerned file was with the Accused. Their office was not aware of payment of challan by PW- 1. The accused was working as in charge of the record assistant and also VAO for that village since 10 years prior to that day. The accused in his capacity as record assistant was keeping his record in his house also. 30. It is elicited in the cross-examination of PW-4, who worked as Special R.I. during the relevant period in the office of the MRO, Nandanoor, that the MRO has to sent the notices in Form-11 to the vendor and vendee and then sends Form-13 (A) to the Sub- Registrar’s office. Thus after the valued amount is paid, he will issue 13 (B) valuation certificate and then the MRO will hand over the said certificate to the VAO for making appropriate entries in the ROR. 31. Exs.P-8 and P-9 challans show that the amount was paid on 26-09-1996 for entering the details of the newly purchased lands by PW-1 in the pattedar passbook. Thus PW-1 made an application in September, 1996 and the file was pending with the accused till 19-11-1996 i.e., the date of trap. 32. The learned counsel for the accused argued that since the MRO had not issued valuation certificate, the accused had no authority to make entries in the pattedar passbook. It is also his submission that since necessary orders were not passed by the MRO, the accused was not in a position to do any official favour to PW-1 and when the accused was not in a position to do official favour, the question of demanding bribe does not arise. 33. In STATE OF PUNJAB’s case (1 supra), relied on by the learned counsel for the accused, it was held that when the accused had no role to play in the matter of official favour, such issue assumes significance. 34. In the above case, the complainant (PW-5) applied for grant of electric connection for 5 HP motor pump. It is admitted that High Tension connection can be granted in terms of the seniority list only after installation of the transformer as per the sanction order. The accused had no role to play grant the connection and it should be granted by the higher authorities only. Moreover, DW-1 who categorically deposed that the complainant had forcibly put the currency notes in the pocket of the accused, was not cross-examined. The case of the accused in that case is that the complainant challenged him that he would teach a lesson to him. 35. The facts of the above case are different from the facts of the case on hand. 36. In this case, the Accused was working as supernumerary Junior Assistant in the office of the MRO and he was in charge of the post of VAO. PW-1 approached him for effecting entries in the pattedar passbook in respect of the lands purchased by him. Admittedly though PW-1 had paid the amount under the challan and enclosed all necessary documents, the file was kept pending with the accused. The accused did not take the file to the MRO for issuing valuation certificate. 37. It appears that the file did not move in its normal course. Normally when the corrupt officers expect some money, they postpone the work and give signals to the party that the work would not be done until some amount towards bribe is paid to them. So the delay in disposal of the matters and compelling the parties to move around officers are some of the circumstances prove the intention of the officer to take the bribe. The fact remains that the file was pending with the Accused. It is the settled law that the accused need not be in a position to do any official favour, but it is