HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2249 OF 2004 Dated 18-03-2011 Between: Akula Gopal Rao ……..Appellant And: State of A.P., rep. by PP., High Court of A.P. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2249 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the III Additional District & Sessions Judge-cum- Special Judge for A.C.B. Cases, Visakhapatnam in C.C.No.42 of 2000 dated 01.10.2004. The appellant herein was prosecuted for the offence under Sections 7,11 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, the Act) alleging that one G. Guruvulu of Garugubilli village of Marakamudidam Mandal in Vizianagaram District has lodged a complaint with the District Collector for not issuing 10(1) Adangal by C. Data Rao, V.A.O and on which the accused-officer who has worked as R.D.O was appointed as an enquiry officer by the District Collector, Vizianagaram. The accused-officer summoned the complainant to appear before him on 08.06.1994 by issuing a notice dated 4.6.1994. The complainant along with P.W.2 and B. Venkata Rao, Mandal Revenue Inspector were asked to appear on 11.6.1994. Accordingly, the complainant and others appeared before the accused-officer on 11.6.1994. The accused-officer excluding the others demanded the complainant for payment of Rs.2,000/- as bribe for writing favourable report in the impending enquiry against him. The complainant pleaded his inability to pay such amount and the accused-officer has reduced the same from Rs.2,000/- to Rs.1,500/- and however, threatened that if the demanded amount was not paid within 2 or 3 days, he would send an adverse report against the complainant to the District Collector. As there is no alternative, the complainant agreed to pay the amount, but as he was not willing to pay the said bribe amount to the accused-officer, he lodged a report before the D.S.P., A.C.B, Vizianagaram and the DSP after complying all the formalities has laid a trap on 22.6.1994 at 7.30 p.m in the office at Vizinagaram when he demanded and accepted Rs.1,500/- as bribe for writing a favourable report in respect of the enquiry pending against the complainant and the tainted amount was recovered from the right side pant pocket of the accused-officer and the chemical tests conducted on both the hand fingers and inner linings of the pant pocket of the accused-officer proved positive, and the explanation of the accused-officer is not satisfactory. Hence, the accused was charge sheeted for the offences under Sections 7, 11 13(2) r/w 13(1)(d) of the Act. The Special Judge has framed the charges under Sections 7 and 13(2) r/w 13(1)(d) of the Act against the accused and the accused has pleaded not guilty for the said charges. The prosecution in order to establish the said charges, examined 5 witnesses on their behalf and got marked Exs.P.1 to P.15 and M.Os.1 to 10. The learned Special Judge by taking into consideration of both oral and documentary evidence found the accused guilty for the offence under Section 7 of the Act and sentenced to undergo simple imprisonment for a period of 1 years and to pay a fine of Rs.1,000/- and also found the accused guilty for the offence under Section 13(2) r/w 13(1)(d) of the Act and convicted and sentenced to undergo simple imprisonment for a period of 1 year and to pay a fine of Rs.1,000/-. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able establish the offences under Sections 7 and 13(2) r/w 13(1) of the Act against the accused beyond reasonable doubt? The learned counsel for the appellant has pleaded that the P.W.1 complainant is not a trustworthy witness as he has changed his version with regard to the demand and reducing the amount by the accused officer and he has also denied about the recording of his statement on 09.06.1994. In fact he was examined and his statement was recorded on 09.06.1994 by the accused officer. The learned counsel for the appellant has further pleaded that there is no official favour pending with the accused as on the date of the alleged demand on 11.6.1994 as the accused has already sent the report on 11.6.1994 in favour of the complainant to the District Collector and it is evident from Ex.P.10 and therefore, the question of demand and acceptance of the illegal gratification by the accused on 11.6.1994 and accepting the same on 22.6.1994 does not arise. The learned counsel for the appellant has further pleaded that the spontaneous explanation given by the accused to the effect that he was informed that the said amount was sent by the M.R.O and as such he accepted the same and he could not establish the said fact as the M.R.O is no more by the date of trial and he further contended that in view of the contradictory evidence of P.W.1, his evidence cannot be relied upon without corroboration and as such the prosecution failed to establish the demand and acceptance of the illegal gratification and as such they are not entitled for the presumption under Section 20 of the Act. The learned Standing Counsel for the A.C.B, on the other hand, has pleaded that the recovery of the amount from the possession of the accused was established and since the trial was conducted after 10 years of the occurrence of the incident, there will be minor discrepancies in the evidence of P.W.1 and as such his evidence cannot be thrown away and from the evidence of P.W.1, the demand and acceptance of the bribe was established and no corroboration is required in case of demand and acceptance of the bribe as it will be done in secrecy. He further pleaded that the accused has failed to rebut the presumption available under Section 20 of the Act. As such the lower court has rightly convicted and sentenced the accused for the said charges. According to the prosecution, one G. Guruvulu has lodged a complaint against the V.A.O C. Data Rao who is the complainant herein for not issuing 10(1) Adangal for the land in his possession and the District Collector, Vizianagaram has ordered for an enquiry by appointing the accused as an enquiry officer. The accused sent a notice to the complainant for his appearance before him on 6.6.1994 and when he appeared on that day, the Superintendent of the office of R.D.O has directed him to get the land surveyed by P.W.2 along with Mandal Revenue Inspector and come on 8.6.1994. Accordingly, on 8.6.1994 he has appeared before the accused along with survey report and the R.D.O has directed them to come to his office on 11.6.1994. Accordingly, himself and others appeared before the R.D.O on 11.6.1994 and the R.D.O has sent away the others and demanded the complainant to pay the bribe amount of Rs.2,000/- for submitting a favourable report to the District Collector and when he expressed his inability to pay the said amount, the accused reduced the same to Rs.1,500/- and directed him to pay the same within two or three days, otherwise, he will send an adverse report against him. As he is not willing to pay the said amount, he has lodged a complaint with the DSP, ACB, Vizianagaram on 21.6.1994 and thereafter a trap was arranged on 22.6.1994 by the DSP, ACB and the said trap was successful and the tainted amount was recovered from the possession of the accused. The complainant as P.W.1 has stated about the receiving the notice from the accused on 5.6.1994 directing him to appear before him on 6.6.1994 and he went to the office of the accused in the morning but he was not available and therefore he waited till the evening. The Superintendent of the office of R.D.O instructed him to survey the land with the Surveyor P.W.2 on 7.6.1994 along with R.I Venkata Rao and submit a report to accused on 8.6.1994. Accordingly, the land was surveyed on 7.6.1994 and the report was prepared. As per the Survey, G. Guruvulu was in possession of one acre and the remaining land is in possession of Suvvada Surayanarayana and another. Himself, and the Surveyor P.W.2 went to the office of accused on 8.6.1994 as the R.D.O was not available they were asked to wait in the office by the Superintendent. The R.D.O returned to the office at 5.00 p.m and enquired G. Guruvulu and recorded his statement. The R.D.O asked him and the Surveyor to come to his office on 11.6.1994. Himself and the Surveyor went to the office of A.O on 11.6.1994 and the R.D.O enquired Bangarappadu P.W.2 and thereafter the R.D.O asked him to go away. After the Surveyor left the office, the A.O demanded him to pay the bribe amount of Rs.2,000/- to submit a favourable report by him to the District Collector. He refused to pay that amount as he did not commit any wrong. The A.O threatened to submit a report against him. Inspite of it, he did not agree and he left the office. According to him, he approached the A.C.B, Vizianagaram on 21.6.1994 and submitted Ex.P.1 written report. The Dy. S.P., Vizianagaram, A.C.B instructed him to come on 22.6.1994 at 4.00 p.m. According to P.W.1, the accused demanded the bribe amount of Rs.2,000/- on 11.6.1994 and he was reluctant to refuse and to pay the same he was asked to come on 20.6.1994 and on that day, the accused officer reduced the same from Rs.2,000/- to Rs.1,500/- and he is not willing to pay the said amount, he has lodged a complaint on 21.6.1994 which is Ex.P.1. The learned counsel for the appellant has pleaded that the accused has not summoned the complainant to appear on 20.6.1994 and therefore, the question of reducing the said alleged demand of the bribe amount from Rs.2,000/- to Rs.1,500/- does not arise. As per the complaint Ex.P.1, he appeared before the accused on 11.6.1994 and he was asked to pay Rs.2,000/- as bribe amount and when he has expressed his inability, the R.D.O has reduced the same to Rs.1,500/- and again on 20.6.1994 he met the R.D.O and when he demanded the said bribe amount he has stated that he did not bring the amount and he will make the payment within two or three days. At that time, the accused has threatened him to submit an adverse report against him. P.W.1 in his cross-examination has stated that on 11.6.1994, he refused to pay the demanded bribe amount and thereupon the accused proclaimed that he would write a report against him. He informed the same to M.R.O but he did not give any written report to the District Collector. Then he came out from the office of the accused. On 11.6.1994, he informed the Surveyor about the demand for bribe amount by the accused. On 20.6.1994, for the first time, accused reduced the bribe amount from Rs.2,000/- to Rs.1,500/-. On 8.6.1994 Guruvulu was called inside the office by the accused and made enquiries, but he does not know whether his statement was recorded or not. He denied that they did not go to the office of accused on 8.6.1994. His statement was not recorded by the accused on 8.6.1994. He does not know about sending of the report by the accused to the Collector on 11.6.1994. His statement was never recorded by accused. Therefore, P.W.1 has asserted about the demanding of the amount on 11.6.1994 and again on 20.6.1994 and reducing the same to Rs.1,500/- on 20.6.1994, but the same is contrary to the complaint given by him and the P.W.2 who is the Surveyor has stated in his cross-examination that P.W.1 has never stated any thing against the accused to him. Basing on the above contrary evidence of P.W.1, the learned counsel for the appellant has pleaded that the P.W.1 is not trustworthy witness and as such his evidence cannot be relied upon. The learned Standing Counsel for the A.C.B has pleaded that the evidence was recorded 10 years after the incident and there is every possibility of minor discrepancy and since it is only a minor discrepancy, his evidence cannot be thrown out. The contradictions in the evidence of P.W.1 as pointed out with regard to reducing the amount from Rs.2,000/- to Rs.1,500/- and also recording the statement of P.W.1 by the accused. Admittedly, the evidence of P.W.1 was recorded after 10 years of the said incident. As rightly pointed out by the learned Standing Counsel for the A.C.B in view of the lapses of time, there is every possibility of occurring minor discrepancy in the evidence of the witnesses and the said minor discrepancies occurred in the evidence of P.W.1 was not a fatal to the case of the prosecution. The learned Special Judge has rightly considered the said discrepancies as minor discrepancies and did not affect the case of the prosecution. Therefore, from the above evidence of P.W.1, it is established that the accused demanded the illegal gratification from him. With regard to the acceptance of the bribe amount, the Investigating Officer P.W.5 has conducted the trap by following the prescribed procedure on 22.6.1994. According to P.W.1 on 22.6.1994 at 4.00 p.m he has gone to the A.C.B office along with the proposed bribe amount of Rs.1,500/-. The Dy. S.P. introduced the mediators and his staff members to him and vice versa. He produced the proposed bribe amount of Rs.1,500/- and handed over the same to one of the mediators. The serial numbers were noted in pre trap Panchanama. The DSP called a constable and showed the bottles of sodium carbonate and phenolphthalein powder and explained the use and signifance in a trap case and he got prepared sodium carbonate solution in two separate glasses and when the constable rinsed his hand fingers the solution remained colourless. The mediators, handed over the proposed bribe amount of Rs.1,500/- to the said constable. The constable applied a thin layer of phenolphthalein powder over those notes and they could not see any traces of that powder over those notes. The said constable put a wad of tainted currency notes in his left front shirt pocket and the DSP instructed him not to touch the tainted amount unless there is further demand by AO and also instructed to come and give a signal by lighting the cigarette after payment of the bribe amount to A.O. The H.C Venkata Rao who was directed to closely follow him. The constable rinsed his hand fingers in the sodium carbonate solution, the solution turned to pink colour. The DSP got prepared fresh sodium carbonate solutions, in two separate glasses and when all of them except the above constable rinsed their hand fingers on after another, in the said solution, the solution remained colourless. When he approached the A.O, the A.O asked him about the bribe amount of Rs.1,500/-. He gave the wad of currency notes of Rs.1,500/- to AO and the AO received with his left hand. He asked him whether the amount is correct and he nodded his head and he satisfied himself and changed the tainted notes from his left hand to right hand and kept them in his right side pant pocket. He stated that he sent a favourable report to the District Collector and further directed him to pay Rs.100/- to one Prakasa Rao a clerk. He came out and gave the pre arranged signal and the HC relayed the same to the other trap party. Within five minutes the raid party rushed to the office of A.O and he was asked to stay outside and they entered into the office room of the accused. In the cross-examination, he denied that the moment he entered into the chambers of A.O on the date of trap, the AO stated to him as to why he came to his chambers, since the report was already sent to the District Collector. He added that after further demand and acceptance of the bribe amount, the AO stated that a favourable report was sent to the District Collector. With regard to the said trap, the prosecution has examined P.W.4 who is the mediator and according to him on 22.6.1994 at 3.00 p.m, at the direction of DM & HO, he appeared before DSP, ACB, Vizianagaram. By then the other mediators were present. Thereafter P.W.1 and the other staff members were called inside. They were introduced to P.W.1 and vice versa. According to him they proceeded in a Jeep and a car to the office of AO at 7.00 p.m., and reached Mayuri Junction at 7.05 p.m, P.W.1 and the HC got down the vehicles, and the earlier instructions were reiterated to them by DSP and they proceeded towards the office of the accused. When they were entered into the office room of A.O, A.O alone was sitting in his chair. The moment they entered the office room of AO he stated that “I presume that you are from A.C.B”. The DSP disclosed his identity and the AO disclosed his identity and at that time AO became pale and started rubbing his both hand fingers to his pant. Then the DSP got prepared two glasses of sodium carbonate solution and at the direction of DSP, AO rinsed his hand fingers in the solutions. The solution in which the right hand fingers of AO was rinsed turned to light pink colour and the solution in which the left hand fingers were rinsed turned to very light pink colour. What all stated by the accused officer were recorded in the post trap proceedings. The MRO was called inside and enquired basing on the statement of AO that MRO was sent Rs.1,500/- through P.W.1 and what all the MRO stated before them was incorporated in post trap proceedings. The DSP seized the relevant records. Apart from the tainted amount of Rs.1,500/-, the AO was also in possession of Rs.3,662/- in a black leather money purse. As he could not give proper explanation, it was also seized. M.O.8 is the black purse and M.O.9 is cash of Rs.3,662/- . Thereater they proceeded to the house of A.O and found a DD for Rs.28,500/-. In the cross-examination, he denied that the tainted amount was recovered from P.W.1 before entering into the office room of AO. He admitted that during Ex.P.7 proceedings, the AO stated that the MRO sent the amount through P.W.1. He denied that he did not accept the said amount when it was placed on his table stating that it was sent by MRO through P.W.1. The Investigating Officer P.W.5 has also supported the version of the P.W.4 the mediator with regard to the conducting of the trap and recovering of the amount of Rs.1,500/- at the instance of the accused from his possession. Therefore, from the above, it is evident that P.Ws.4 and 5 conducting the trap and recovered the amount from the possession of the accused. As already stated above, the demand of the bribe amount by the accused was established from the evidence of P.W.1, the prosecution could able to establish the demand and acceptance of the illegal gratification by the accused. Since the prosecution could able to establish the demand and acceptance, they are entitled to draw the presumption under Section 20 of the Act. According to the post trap proceedings, the accused has stated that the amount was sent by the M.R.O through P.W.1 and according to P.W.4, the M.R.O was called immediately and verified the same and recorded his statement and incorporated the same in Ex.P.7. But the said M.R.O could not be examined as he is reported to be no more. The learned counsel for the appellant has pleaded that the P.W.4 has admitted in the cross-examination that the solution in M.O.4 appears to be white in colour and contended that the story of the turning the solution turned pink is not proved and as such the prosecution could not able to establish the successful trap. The lower court has considered that aspect and observed that since there is a long gap there is every possibility of changing the colour of light pink to white and thereby he did not accept the contention of the learned counsel for the appellant. The said reason given by the lower court appears to be correct in view of the long lapses of time. More over that cannot be a ground to disbelieve the version of the prosecution when the other evidence produced by the prosecution is acceptable in that regard. The next contention of the learned counsel for the appellant that as on the date of the alleged demand on 11.6.1994, the accused officer has already sent the said report. Ex.P.10 is the Mede-up of file sized from the accused and report dated 11.6.1994 of the accused officer is available in the said record. P.W.1 in the cross-examination has denied the suggestion that by the time he entered the chamber of the AO he has questioned him why he has come since the report was already sent to the District Collector, but the witness added that after further demand of the bribe amount the AO has stated that a favourable report was sent to the District Collector. Moreover there is no proof to show that the report dated 11.6.1994 was sent to the District Collector. The original of the report was available in the file and dispatch numbers were not found on the said report and dispatch register produced by the accused officer does not show any such report was dispatched to the District Collector on 11.6.1994. Therefore, it cannot be said that as on the date of demand on 11.6.1994 the report was already sent by the accused. If the report was sent by the accused to the District collect on 11.6.1994, he could be able to prove the same by producing the necessary documents and that the report was received by the District Collector by the date of trap i.e., on 22.6.1994. In the absence of the same, it has to be presumed that even though the report was prepared, the same was kept with him on 11.6.1994 and thereby demanded the illegal gratification from P.W.1. Therefore, as on the date of demand made by the accused on 11.6.1994, the official favour is pending with the accused. Thus, the prosecution could able to establish the demand and acceptance of the illegal gratification and for doing the official favour in favour of the P.W.1. Thus, the prosecution could able to establish the offence under Sections 7, 13(2) read with Section13(1)(d) of the Act against the accused beyond reasonable doubt. With regard to the quantum of sentence, the learned Special Judge has imposed the minimum sentence as prescribed under the Act for the said offences and as such the same also does not warrant any interference by this Court. In the result, the appeal is dismissed and the conviction and sentence passed by the III Additional District & Sessions Judge- cum-Special Judge for A.C.B. Cases, Visakhapatnam in C.C.No.42 of 2000 dated 01.10.2004 is hereby confirmed. ______________________ P.DURGA PRASAD,J. Date:18.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2249 OF 2004 Dated 18.03.2011 Gk.