IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL No.75 of 2003 Between: R. Keshava Kumar ..... Appellant/Accused AND State – A.C.B. ..... Respondent/Complainant JUDGMENT: This appeal is directed against the judgment dated 30-12-2002 passed in C.C.No.7 of 1998 by the Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the appellant herein was found guilty for the charges under Sections 7 and 13 (1)(d)(i)(ii) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’) and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for 3 months for the offence under Section 7 of the P.C. Act. He was further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence under Section 13(1) (d)(i)(ii) r/w. Section 13 (2) of the P.C. Act, 1988. The substantive sentences were ordered to run concurrently. 2. The appellant herein is the sole accused before the lower court and hereinafter he will be referred to as ‘accused’ for the sake of convenience. 3. The brief facts of the case are as follows: The accused was working as Assistant Grade III in the office of the District Manager, A.P. State Civil Supplies Corporation Limited, Mahabubnagar, as such he is a public servant within the meaning of Section 2 (c) of the P.C. Act. One V. Sagar Rao (PW-1) was a Contractor, who entered into a contract with the District Manager, A.P. State Civil Supplies Corporation, for transporting sugar from various sugar factories to Mahaboobnagar District during the year 1996-1997. At the time of entering into agreement, PW-1 had furnished a bank guarantee of Rs.2,50,000/- and paid EMD of Rs.1,50,000/- in favour of the Managing Director, A.P. State Civil Supplies Corporation, Hyderabad. He continued to transport sugar till the end of June, 1997. He did not participate in the tenders during the year 1997-98 and wanted to take back his bank guarantee amount and EMD amount from the Civil Supplies Corporation and for that purpose he had to obtain no due certificate from the District Manager, A.P. State Civil Supplies Corporation, Mahaboobnagar. Therefore, he applied for issuance of no due certificate in the last week of July, 1997. The accused, who was the concerned Clerk, is alleged to have demanded Rs.8,000/- as bribe for preparation of no due certificate. It is alleged that the accused had prepared no due certificate and obtained the signature of the District Manager on 08-08-1997. However, on 08-08-1997 when PW-1 met the accused, he reiterated his demand. Since PW-1 was not inclined to pay the bribe amount, he gave a complaint to Sri K. Saibabu (PW-7), who was working as D.S.P., A.C.B., during the relevant period. 4. Basing on the complaint given by PW-1, PW-7 caused discrete enquiries into the contents of the complaint and registered a case in Crime No.13/ACB-HR/97 under Sections 7 and 11 of the P.C. Act, 1988. Ex.P-16 is the F.I.R. Then PW-7 secured the presence of V. Nagendra Kumar (PW-3) and Mohd. Badigi Naik and introduced PW-1 to them. Then PW-1 also produced Rs.8,000/- in hundred rupees denomination. The mediators had noted down the numbers of the currency notes. Then PW-7 got prepared Sodium Carbonate solution and demonstrated the test and explained the significance of phenolphthalein test. Then the notes were treated with phenolphthalein powder and the said currency notes were kept in the shirt pocket of PW-1. PW-1 was directed not to touch those currency notes and to pay the amount only on the demand made by the accused. It was also ensured that PW-1 does not carry any other thing in his shirt pocket. Then PW-2 was requested to act as accompanying witness and he was instructed to give pre-arranged signal after the accused had accepted the bribe amount. Then the mediators report in Ex.P-10 was prepared and all the particulars are noted in it. Then PWs.1 and 2 left on their scooter, PW-7, mediators and other staff members followed them in the official jeep of PW-7. 5. According to PW-1, he filed an application for issuance of no due certificate. Ex.P-1 is his application. His specific case is that he met the accused and the accused asked him to come after two days. On 12-08-1997 when he met the accused he handed over him no due certificate. Ex.P-2 is the no due certificate. Ex.P- 3 is the copy of Ex.P-2. His specific case is that he did not meet the accused between his first visit and the last visit on 12-08- 1997. His specific case is that neither the accused demanded any bribe amount nor he paid any amount to the accused. However, he had admitted that he gave a complaint to the DSP ACB, Hyderabad on 11-08-997 in Ex.P-4. However, he says that he had submitted Ex.P-4 at the behest of one B.S. Rama Rao (PW-4). 6. According to PW-2, the accompanying witness, on 12-08-1997 he met the ACB Officials and that they asked him to accompany PW-1 and further directed him to keep the currency notes either in the table drawer or in the office files of the accused while PW-1 talking with the accused. His further case is that ACB Officials gave some amount to him which he did not count and he went to the office of the accused along with PW-1. His specific case is that while PW-1 was talking with the accused he had kept the currency notes given by the ACB Officials in the table drawer of the accused. He had also deposed that the ACB Officials kept the cash in his shirt pocket and on the way, he touched the cash and adjusted it in his pocket. It is also his specific case is that when himself and PW-1 went inside the office of the accused they shook their hands with the accused. 7. According to PW-3, on being called by the ACB Officials he went to the ACB Office on 12-08-1997 and from there they went to the Inspection Bungalow, Jadcharla. He stated that in his presence the first mediators report was prepared and the significance of Phenolphthalein powder test was explained to them. His further case is that he accompanied PW-7. He further deposed that PWs.1 and 2 went inside the office and PW-7 and others took vantage position and at about 1.35 p.m., PW-2 who came out of the office of the accused, gave a pre-arranged signal. His further case is that then they rushed to the office of the accused. PW-3 further deposed that then PW-7 rushed to the accused and disclosed his identity and when he questioned the accused whether he had accepted any illegal amount from PW-1, the accused nodded his head. Then PW-7 got prepared Sodium Carbonate Solution in two separate tumblers. When accused rinsed his both hand fingers separately the solution turned into pink colour. Then the resultant solutions were sealed in separate bottles. The accused was asked to produce the bribe amount. Then he opened the right side drawer and produced the bribe amount. The currency note numbers were compared with the numbers noted in the first mediators report and they tallied with each other. White paper which came into contact with the currency notes of the table drawer was also subjected to Sodium Carbonate Test, which gave positive result. M.O.7 is the said paper. Then PW-7 produced original no due certificate collected from the accused and on further search of table drawer a total amount of Rs.9,010/- was found. M.O.9 is the said cash. The shirt pocket of accused was also searched and an amount of Rs.5,500/- was found in the shirt pocket. The rough sketch of the scene of offence was also prepared. The statements of PW-1 and the accompanying witness were prepared. PW-3 also deposed about the post trap events. 8. According to PW-4, B.S. Rama Rao, who was working as District Manager, A.P. State Civil Supplies Corporation, Mahaboobnagar, during the relevant period, he cleared the file on 08-08-1997 and signed on no due certificate and then the file was sent to the accused. 9. PW-5 A. Sambasiva Rao, who was working as Junior Civil Judge, Jadcherla, during the relevant period, deposed that he recorded the statements of PWs.1 and 2, under Section 164 Cr.P.C., which are marked as Exs.P-6 and P-8 respectively. 10. PW-6 N. Ganapathi Rao, who was working as the General Manager (Personal) in A.P. State Civil Supplies Corporation, speaks about the issuance of sanction order by Mr.Samuel, the then Chairman and Managing Director of A.P. State Civil Supplies Corporation Limited. 11. PW-8 N. Venkataswamy is the Investigating Officer. After the file was handed over to him on 22-08-1997 he investigated the case, recorded the statements of PW-4 and others and sent the file to the Head Office. PW-9 N.V. Srinivas is the officer who completed the investigation in this case and laid charge sheet. He had also participated in the trap proceedings. PW-10 M. Samuel, who worked as Vice Chairman and Managing Director, issued sanction proceedings in Ex.P-15. 12. On behalf of the accused, DW-1 Rosa Veronica was examined as DW-1. Her case is that he was working as Typist in A.P. State Civil Supplies Corporation, Mahaboobnagar during the relevant period. Her further case is that her table was near the table of the accused and located in ‘L’ shaped corridor. Her further case is that at the time of trap, she was present at her seat and that PW-1 and another person came to the accused, wished him saying ‘namasthe’ and shook their hands with the accused and as courtesy accused also shook his hands with their hands. Her further case is that then PW-1 asked for no due certificate and when the accused stood up from his seat and while taking concerned file from his Almirah, the person accompanied PW-1 placed something in the already opened table drawer of the accused and closed the drawer. On hearing the noise, accused turned back and chided those persons. Then those persons left from there. Accused went to toilet asking DW-1 to deliver no due certificate to PW-1, if he comes again. However, the accused returned within 2 or 3 minutes from toilet room and then PW-1 approached him and accused himself delivered no due certificate to PW-1. Her further case is that then ACB officials entered into the room of the accused and when they asked about the bribe amount accused denied to have received the same. Her further case is that the person, who accompanied PW-1, hinted the ACB Inspector Sreenivas showing table drawer of the accused and as per the instructions of ACB people the accused opened the table drawer and a wad of currency notes were found in the table drawer. Then as per the directions of ACB Officials, accused picked up that amounts and placed it on the table. It is also her case that PW-4 B.S. Rama Rao was inimical towards the accused as the accused had knowledge about the personal affairs of PW-4 and it is also her case that one Mrs.Tasneem, who was working in their office, was also on inimical terms with the accused. It is also her case that one Durga madam, who is working in their department, is the wife of PW-9 N.V. Srinivas, Inspector of ACB. 13. The specific case of the accused is that PW-4 had illicit intimacy with Mrs.Tasneem and that the accused came in possession of the letter of PW-4 to Mrs.Tasneem and therefore, PW-4 bore grudge against the accused and that Sri.N.V. Srinivas, ACB Inspector, was neighbour of PW-4 and that to eliminate the accused from his office PW-4, in collusion with PW-9 got filed this false case against the accused. 14. The prosecution, in order to prove its case, examined PWs.1 to 10 and got marked Exs.P-1 to P-16 and M.O.1 to 10. On behalf of the accused DW-1 was examined and Exs.D-1 to D-11 were marked. 15. The learned Additional Special Judge for SPE & ACB Cases – cum- V Additional Chief Judge, City Civil Court, Hyderabad believed the prosecution case and convicted and sentenced the accused as referred above. 16. The learned Sessions Judge disbelieved the evidence of DW-1 only on the ground that if at all she had seen PW-2 keeping something in the drawer of accused she would have naturally informed the accused about the said fact. It is also observed that as seen from Ex.P-13 post trap mediators report DW-1 seems to have stated that PWs.1 and 2 were standing in front of the table and she could not notice what transpired to them. Thus, the version of DW-1 was disbelieved. 17. The learned Sessions Judge believed the version of PWs.3 and 7 and came to a conclusion that both hand fingers of the accused were subjected to Sodium Carbonate Test and the solution in both the containers turned into pink colour and that the money was recovered from the office table of the accused and these circumstances show that the accused had accepted the bribe amount. It was further observed that admittedly PW-1 had applied for no due certificate and no due certificate was ready and it was with the accused and that the accused did not deliver the same to PW-1. It is also observed that PW-1 lodged complaint under Ex.P-4 with PW-7 and the trap was organized successfully and in these circumstances both the charges were proved against the accused. 18. The learned senior counsel Sri C. Padmanabha Reddy arguing on behalf of Sri C. Praveen Kumar, Advocate, submitted that since both the important witnesses PWs.1 and 2 have turned hostile there is no evidence to show that the accused demanded any bribe amount or that he had accepted any bribe amount from PW-1. It is further argued that mere recovery of amount, by itself, is not sufficient to prove the charges against the accused. It is further argued that the evidence on record shows that PWs.1 and 2 gave shake hand to the accused and PW-2 himself admitted that he kept the amount in the drawer of the table of the accused and these circumstances show that the accused never accepted the proposed bribe amount from PW-1. It is also argued that admittedly DW-1 was also present at the time of trap. Therefore, there is nothing to disbelieve the version of DW-1. 19. The learned Special Public Prosecutor for ACB Cases Sri.Ravi Kiran submitted that admittedly PW-1 applied for no due certificate and that the no due certificate was ready by all means by 08-08-1997 itself and that since the accused was demanding bribe amount it was not furnished to PW-1 and admittedly, PW-1 lodged a complaint to the ACB officials and that the ACB Officials successfully conducted a raid and both hand fingers of accused when subjected to Sodium Carbonate Solution test proved positive and that the amount was recovered from the table drawer of the accused and these circumstances put together clinchingly establish that the accused had demanded and accepted the bribe amount and therefore, prosecution has proved its case. 20. The point that arises for consideration is: Whether the prosecution proved that the accused demanded and accepted the bribe amount from PW-1 ? 21. Section 20 of the Prevention of Corruption Act, 1988, reads as follows: “Presumption where public servant accepts gratification other than legal remuneration:- (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under Clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub- sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.” 22. The main question that arises for consideration is whether in the facts and circumstances of the case a presumption can be drawn against the accused. 23. The case of the prosecution is that PW-1 applied for no due certificate and he submitted application on 26-07-1997 in Ex.P-1 for issuance of no due certificate. PW-4 endorsed on the same and the accused prepared no due certificate and PW-4 signed in it on 08-08-1997. Thus, the file was cleared by 08-08-2007 and it was with the accused. Admittedly, PW-1 lodged complaint in Ex.P- 4 to the ACB officials. 24. Of course, in Ex.P-4, PW-1 seems to have alleged that accused demanded an amount of Rs.8,000/- as bribe for issuing no due certificate. Since PW-1 has denied the contents of Ex.P-4 and further stated that he had given Ex.P-4 complaint at the behest of PW-4 it is clear that the prosecution failed to prove the earlier demand said to have been made by accused and even on the date of trap. It is PWs.1 and 2, who went to the accused. According to them the accused did not demand any amount on that day. According to PW-1, the accused had handed over him no due certificate. According to PW-2 when the accused was taking files from Almirah, he himself kept the tainted currency notes in the drawer of the accused. Therefore, what transpired between PWs.1 and 2 and the accused is known to them only. Admittedly, PWs.1 and 2 have not supported the case of the prosecution. More over, PW-2 went to the extent of saying that he himself kept the tainted amount in the drawer of the table of the accused. His version is that both PWs.1 and 2 gave shake hand to the accused. There is no other evidence to show how the amount came into the drawer of the accused. Of course, the version of DW-1 is not convincing since as rightly observed by the learned Special Judge that if at all DW-1 had seen PW-2 keeping the amount in the drawer of accused she would have told the same to the accused. 25. Of course, merely because the version of DW-1 is not believable it cannot be presumed that the accused himself had kept the amount in his table drawer. Of course the evidence of PWs.3 and 7 shows that having received the pre-arranged signal they went to the accused and conducted phenolphthalein powder test, both hand fingers of the accused turned into pink colour and that the accused himself gave the currency notes from the drawer of his table. 26. As discussed above, there is no evidence in this case to show that the accused had accepted the proposed bribe amount. The possibility of the accused shaking hands with PWs.1 and 2 and consequently his hands coming in touch with Phenolphthalein powder cannot be ruled out. 27. In STATE OF A.P. v. V. VASUDEVA RAO[1], it was observed as follows: “The only condition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the Appellant has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the Appellant has accepted or agreed to accept gratification. It was further observed as follows: “Proof of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. It was further observed as follows: “In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion”. 28. Presumption under Section 20 of the P.C. Act can be drawn only when it is proved that the accused has accepted any gratification. In the absence of any legal evidence to show that the accused accepted the bribe amount no presumption can be drawn within the meaning of Section 20 of the P.C. Act. Of course, the view taken by the learned Special Judge is also possible since the Phenolphthalein test shown positive when the both hand fingers were rinsed in the Sodium Carbonate Solution and the tainted amount was recovered from the drawer of the table of the accused. A presumption can be drawn that the accused had accepted the bribe amount from PWs.1 and 2 as a reward for handing over the no due certificate to PW-1. But since PWs.1 and 2 have turned hostile and did not support the case of the prosecution and more over, according to PW-2 they shook their hands with the accused and the possibility of the accused coming in touch with Phenolphthalein powder cannot be ruled out. It is settled law that mere recovery of amount is not sufficient to convict the accused. When two views are reasonably possible the settled legal position is that the view in favour of the accused has to be adopted. 29. In the circumstances, I am of the view that the accused is entitled