IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.184 OF 2002 Between: Sri G.S.Nair ..... Appellant/Accused AND The State, Rep. by CBI, Hyderabad. ..... Respondent/Complainant The Court made the following: JUDGMENT: This criminal appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 04.02.2002, in C.C.No.22 of 1999, on the file of the learned Special Judge for CBI Cases, Visakhapatnam, whereunder and whereby, the appellant was found guilty of the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’), and accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.3,000/- and in default to suffer Simple Imprisonment for a period of one month, under each count. 2. Brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: P.W.1-de facto complainant is the proprietor of M/s. Ajanta Steels, P.W.4 is the Supervisor and P.W.5 was the lorry driver who was engaged by P.W.1. P.Ws.6 and 7 were employees of the Visakhapatnam Steel Plant and the Accused Officer was the Inspector, Crime and Intelligence Wing, Central Industrial Security Forces (hereinafter referred to as ‘CISF’), Visakhapatnam Steel Plant at the relevant point of time. P.Ws.2 and 3 are the pre-trap and post-trap mediators. P.W.1 purchased 70 metric tonnes of Light Melting Steel scrap. The Visakhapatnam Steel Plant authorities allotted 70 metric tonnes of Light Melting Steel scrap vide delivery order No.98/27/3333, dated 07.08.1998. On 20.08.1998, when the Light Melting Steel scrap was loaded in the truck and while P.Ws.4 and 5 were attending to the transportation formalities, the subordinates of the Accused Officer suspected some foul play and informed the same to the Accused Officer. The Accused Officer got recorded the statements of P.Ws.4 and 5 and the cleaner of the truck and released the loaded truck by informing P.W.4 that his owner (P.W.1) should meet him and pay Rs.25,000/- as bribe amount. On 06.09.1998 at about 2.30 p.m., when P.W.1 met the Accused Officer at his residence, the Accused Officer insisted for payment of bribe amount by reducing his earlier demand of Rs.25,000/- to Rs.11,000/-. Later, the Accused Officer seized gate pass-cum-identity card of P.W.4 and was not allowing him to enter into the Visakhapatnam Steel Plant to carry out his business. On 05.12.1998 at about 3.00 p.m., when the Accused Officer insisted him for payment of bribe amount, P.W.1 expressed his inability and the Accused Officer suggested him to pay Rs.5,000/- on 06.12.1998 at about 4.00 p.m. in the office-cum-yard of P.W.1 and to pay the balance amount later within a period of one week. P.W.1 who was unwilling to pay the bribe, approached the Superintendent of Police, Central Bureau of Investigation, Visakhapatnam, and at his direction, P.W.1 met P.W.10-Inspector, Central Bureau of Investigation and gave a report, which is marked as Ex.P4. P.W.10 registered a case under RC.9 (A)/98 against the Accused Officer and issued a First Information Report, which is marked as Ex.P18 and directed P.W.1 to come at 1.00 p.m. along with Rs.5,000/-. Meanwhile, P.W.10 requisitioned the services of P.W.2 and another. At about 1.00 p.m., all of them assembled in the office of the Central Bureau of Investigation, P.W.1 handed over the currency notes, Phenolphthalein powder was smeared on the currency notes and pre-trap proceedings were prepared under Ex.P5. At about 3.00 p.m., all of them proceeded to the office-cum-yard of P.W.1. P.Ws.2 and 3 were waiting in the office room of P.W.1 and others took their position as instructed by P.W.10. At about 4.30 p.m., P.W.1 received a call from the Accused Officer stating that he got some urgent work and he would visit P.W.1’s office at about 6.00 p.m., and the same was informed to P.W.10. On the instructions of P.W.1, P.W.4 accompanied the Accused Officer and showed the way to the office of P.W.1 as the Accused Officer did not know the way to the office of P.W.1. At about 6.00 p.m., the Accused Officer came to the office of P.W.1 and informed about the powers of CISF and demanded to pay Rs.5,000/- and the balance amount of Rs.6,000/- within a week’s time. Then P.W.1 took out the tainted currency notes of Rs.5,000/- and gave it to the Accused Officer who accepted the said currency notes with his left hand and kept the same in his left side pant pocket without counting. After receiving the pre-arranged signal from P.W.2, P.W.10 and other members of the trap party rushed to the office room of P.W.1. The hand fingers of the Accused Officer were subjected to the Sodium Carbonate Solution Test and the resultant solution of fingers of both hands were marked as M.Os.1 and 2. The Sodium Carbonate Solution Test conducted on the right hand fingers (M.O.1) proved negative. The Sodium Carbonate Solution Test conducted on the left hand fingers (M.O.2) proved positive and Solution turned into light pink colour. At the instance of P.W.10, the Accused Officer picked out the currency notes from his left side pant pocket and kept on the table and the same was seized by P.W.10 under M.O.6. Thereafter, P.W.10 prepared the post-trap proceedings under Ex.P7. During the course of investigation, P.W.10 examined the witnesses and recorded their statements. On 12.05.1999, P.W.10 received the sanction order-Ex.P15, and after completion of investigation, P.W.9 filed the charge sheet. 3. The learned Special Judge for CBI Cases, Visakhapatnam, framed the following charges against the Accused Officer: “Charge No.1: That you, being a Public Servant employed as Inspector, Crime & Intelligence Wing, C.I.S.F., Vosakhapatnam Steel Plant, Visakhapatnam, on or about the 6th day of December, 1998 at about 6.20 p.m., at the office-cum- yard of Sri V.Venkataram, Proprietor of M/s. Ajanta Steels, Kurmannapalem, Visakhapatnam, accepted or obtained an amount of Rs.5,000/- from one Sri V. Venkataram, the Proprietor of M/s. Ajanta Steels, Kurmannapalem, Visakhapatnam as an illegal gratification other than legal remuneration as a motive or reward for doing an official favour in the exercise of your official functions viz., for not booking any Criminal Case against the employees of the said V.Venkataram and his firms for the foul play done by the cleaner of the truck belonging to the said Venkataram, the de facto complainant i.e., removing some small pieces of steel scrap from the loaded truck and throwing the same towards road side bushes, in pursuance of your earlier demands on 20.08.98, 06.09.98 and 05.12.98 and thus you thereby committed an offence punishable under Section 7 of the P.C.Act, 1988 and within my cognizance. Charge No.2: That you, being a public servant employed as Inspector, Crime & Intelligence Wing, C.I.S.F., Visakhapatnam Steel Plant, Visakhapatnam, on or about the 6th day of December, 1998 at 6.20 p.m. by corrupt or illegal means or by otherwise abusing your official position as such public servant, obtained for yourself a pecuniary advantage viz., an amount of Rs.5,000/- when paid by the said V.Venkataram, Proprietor of M/s.Ajanta Steels, Kurmannapalem, Visakhapatnam (de facto complainant) in pursuance of your earlier demands made on 20.08.1998, 06.09.1998 and 05.12.1998 and that thereby committed an offence punishable under Section 13(1)(d) read with 13(2) of the P.C. Act, 1988 and within my cognizance.” When the charges were read over and explained to the Accused Officer, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 10 and got marked Exs.P1 to P18 besides the case properties M.Os.1 to 7. 5. After closure of the prosecution evidence, the Accused Officer was examined under Section 313 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, D.Ws.1 and 2 were examined and Ex.D1 was marked. 6. The trial Court, after considering the evidence on record, came to the conclusion that the tainted currency notes were recovered from the pant pocket of the Accused Officer by the Trap Laying Officer-P.W.10 and therefore, the presumption under Section 20 of the Act can be drawn and the defence of the Accused Officer has not been accepted and accordingly, found the Appellant/Accused Officer guilty of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act and 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 beyond all reasonable doubt against the Accused Officer of 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 there was no official favour to be shown to P.W.1 by the Accused Officer; that as P.W.1 has committed some irregularities in transporting the iron scrap material, the Accused Officer chastised the Supervisor and the staff, and after recording the statements from the driver and cleaner of the vehicle, they were admonished, but nearly four or five months thereafter, P.W.1 who entertained a grouse against the Accused Officer set the C.B.I. officials into motion to take revenge against him; that when there is no official favour to be shown to P.W.1 was pending with the Accused Officer in discharge of his official functions, the question of demanding bribe by the Accused Officer does not arise; that the Accused Officer was not a Police Officer or a Station House Officer within the meaning of Section 154 of the Code of Criminal Procedure, 1973, and he cannot register a case and investigate the same if any illegality is allegedly committed by P.W.1 and his staff, and at best, he can only produce them before the nearest Police Station; that the Accused Officer took a loan from P.W.1 for the purpose of carrying out agricultural operations as the Accused Officer was short of money; that the spontaneous explanation given by the Accused Officer would go to show that he received the money towards loan but not as a bribe to show any official favour. Therefore, he prays to set aside the convictions and sentences recorded by the trial Court. 9. On the other hand, Sri T. Niranjan Reddy, learned Standing Counsel for the CBI contended that there is absolutely no reason for P.W.1 to foist a false case of this nature against the Accused Officer; that P.W.1 might not be knowing that the Accused Officer had no power to register a case; that the evidence of P.W.1 would clearly go to show that for not taking any action for the illegalities committed by P.W.1, the Accused Officer demanded the bribe and that an official favour to be shown by the Accused Officer, viz., not to obstruct the vehicles of P.W.1 from taking the iron scrap, was pending and for that reason, there was every scope for the Accused Officer to demand some amount towards bribe and in pursuance of the demand made by the Accused Officer, P.W.1 paid the said amount in his office; that after the receipt of tainted currency notes from P.W.1, the Accused Officer kept the same in his pant pocket; that therefore, the left hand fingers of the Accused Officer when subjected to the Sodium Carbonate Solution Test, turned into pink colour; that even the Accused Officer is not disputing about the recovery of the tainted currency notes from his pant pocket; and that after elaborate consideration of evidence on record, the trial Court rightly found the Accused Officer guilty and accordingly convicted and sentenced him, and there are absolutely no grounds to interfere with the same. Hence, he prays to dismiss the Criminal Appeal. 10. The essential ingredients to constitute the offence under 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. Insofar as offence under 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. 11. It is not in dispute that P.W.1 was doing iron scrap business under the name of style of “M/s. Ajantha Steels”. It is also not in dispute that he was given Ex.P1-letter offering 70 metric tonnes of Light Melting Steel scrap by the Visakhapatnam Steel Plant. Ex.P2 is the Delivery Order. It is also not in dispute that on 18.08.1998, the staff of P.W.1 took the delivery of 10.33 metric tonnes of the Light Melting Steel scrap and on the next day, P.W.1 sent a truck for taking delivery of the said material. They obtained Ex.P3 loading slip-cum-gate pass. As the truck could not come in time, it was detained. An endorsement was made to that effect on Ex.P3. On the next day, the material was loaded in the truck at about 12.00 noon. When the truck was kept quiet near the yard, the staff of the CISF intercepted the truck and questioned the driver and cleaner as to why they were making the adjustment of the load. It is not in dispute that the statements of the driver and cleaner were recorded. 12. P.W.5 was the owner of the lorry, which was engaged by P.W.1 for transporting the iron scrap. It is not in dispute that the Accused Officer also questioned P.W.5 and the cleaner about removing some parts of the steel scrap from the lorry. The driver gave an explanation that the small pieces of the steel would fall on the ground because of the holes of the truck. His statement was recorded as in Ex.P13. Similarly, the statement of the cleaner was recorded as in Ex.P12. After recording the two statements, the Accused Officer allowed the lorry to go. It is also admitted by P.W.5 that the Accused Officer informed the Supervisor not to repeat such things in future and if they repeat such things, he would take action against the firm. It is also not in dispute that the statement of the Supervisor was also recorded. 13. P.W.4 is the Supervisor. P.W.4 clearly admitted that the Accused Officer told him that they (M/s. Ajantha Steels) were cheating and unloading the material against the procedure and therefore, the presence of the proprietor was required. In that connection, the Accused Officer allegedly demanded Rs.25,000/- from his proprietor, otherwise warned that he would register a case against them. In pursuance of the demand made by the Accused Officer, P.W.4 took his proprietor-P.W.1 on 06.09.1998 to the residence of the Accused Officer. P.W.1 went inside and at that time, the Accused Officer reiterated his demand by reducing the amount to Rs.11,000/-. Thereafter, it is alleged that on 05.12.1998, when P.W.1 contacted the Accused Officer, he insisted to pay Rs.5,000/- immediately and the balance of Rs.6,000/- within a week. P.W.1 admitted that he did not mention in his complaint about his Supervisor informing him that the Accused Officer demanded Rs.25,000/-. Therefore, the specific evidence of P.Ws.1 and 4 is that the Accused Officer demanded an amount of Rs.25,000/- for not registering a case. So, except stopping the lorry of P.W.1 on 20.08.1998, there is absolutely no evidence to show that the Accused Officer obstructed the lorry or made the cleaner and driver to wait for a considerable period in the office. 14. No doubt, the evidence of P.W.4 would go to show that the Accused Officer seized his gate pass-cum-identity card. It is not in dispute that unless a person is having a valid gate pass, the CISF officials would not allow anybody into the Steel Plant premises. The gate pass was seized by the Accused Officer not because P.Ws.1 and 4 have not fulfilled the demand made by the Accused Officer, but admittedly because the gate pass of P.W.4 would be expired by 31.10.1998. Therefore, the CISF officials are right in retaining the gate pass of P.W.4. Again in the month of December, 1998, P.W.4 got renewed the gate pass. The evidence of P.Ws.1, 4 and 5 would not disclose that any official favour to be shown to P.W.1 was pending with the Accused Officer as on the date of trap or prior to it. As P.W.4, the driver and the cleaner of the lorry were allegedly committing some mistakes by throwing the unnecessary Light Melting Steel scrap within the premises of the Steel Plant, they were admonished by the Accused Officer. The statements of P.Ws.4 and 5 and the cleaner were recorded and they were duly admonished by the Accused Officer. There is absolutely no evidence to show that after 20.08.1998 till the date of trap, i.e., on 06.12.1998, the Accused Officer caused any hindrance in transporting the scrap by P.W.1. 15. The contention of the learned Standing Counsel for the CBI Cases is that P.Ws.1 and 4 were made to believe that the Accused Officer would register a case and so, he was demanding the amount. P.W.1 is not a layman. He worked as a Junior Commissioned Officer in Indian Navy about 15 years and thereafter, he started his own business. 16. Section 13 of the CISF Act, 1968, reads thus: “Any member of the Force making an arrest under this Act, shall, without unnecessary delay, make over the person so arrested to a Police Office, or, in the absence of a Police Officer, take such person or cause him to be taken to the nearest Police Station together with a report of the circumstances occasioning the arrest.” The officials of the CISF have no right to register a case or to investigate into the same. Therefore, nearly for about four months after the alleged incident, there was no sort of obstruction to the vehicle, wherein the scrap was being carried by P.W.1. When no official favour to be shown by the Accused Officer was pending, the question of demand of bribe does not arise. 17. It is not in dispute that after lodging of Ex.P4-complaint by P.Ws.1 to 10, the presence of P.W.2 and another were secured. The pre-trap proceedings-Ex.P5 was drafted duly noting down the numbers of the currency notes and its denomination and also smearing of the Phenolphthalein powder. When the Trap Laying Officer, after receipt of pre-arranged signal, rushed to the office of P.W.1 and subjected both the hand fingers of the Accused Officer to the Sodium Carbonate Solution Test and when the Accused Officer dipped his left hand fingers in the Sodium Carbonate Solution, it turned into pink colour. It is not disputed by the Accused Officer that he did not receive the tainted currency notes- M.Os.5 and 6 from P.W.1. But the Accused Officer says that he received the said amount as a loan. 18. It is admitted by P.W.2 that when the Inspector questioned the Accused Officer, he gave a spontaneous explanation stating that he took the amount as a loan. P.W.2 is the accompanying witness, whereas P.W.3 is the witness who accompanied the Trap Laying Officer after receipt of the pre-arranged signal. In view of the fact that the receipt of tainted currency notes is not in dispute, it is to be seen whether the Accused Officer received the said amount as a loan or as a bribe for showing an official favour. In view of the fact that no official favour to be shown by the Accused Officer was pending, it cannot be said that it was given as a bribe. Even under Section 7 of the Act, the initial burden is on the prosecution to establish that the Accused Officer demanded or accepted any amount towards illegal gratification for showing an official favour. It is only after discharging the initial burden by the prosecution, the burden shifts to the Accused Officer under Section 20 of the Act. The initial burden placed on the prosecution has not been discharged in view of the fact that the prosecution failed to establish that the Accused Officer received the tainted currency notes to show any official favour. 19. The case of the Accused Officer is that he received the amount as a loan. D.W.1, who worked in the steel plant, was examined to show that P.W.1 paid the tainted currency notes towards loan. He was not present at the time of receipt of money by the Accused Officer. It is his evidence that one Mr. Basha informed the Accused Officer that his owner asked him to bring him for taking the loan. Therefore, his evidence would go to show that the Accused Officer went to the office of P.W.1 for the purpose of taking a loan. No doubt, P.W.1 admitted that he had no prior acquaintance with the Accused Officer prior to the intercepting of the truck, but he knew that CISF was functioning in Visakhapatnam Steel Plant from 1996 onwards. The spontaneous explanation given by the Accused Officer would go to show that he received the amount towards loan. No doubt, the statement made by the Accused Officer before the Trap Laying Officer may not be admissible, as such, any evidence, but at the same time, it can be relevant to show his conduct. If really, the Accused Officer has taken the amount towards bribe, he would not have given a spontaneous explanation stating that he received the amount from P.W.1 towards loan. 20. The theory of accepting money from P.W.1 by the Accused Officer appears to be probable in view of the fact that no official favour to be shown by the Accused Officer was pending with P.W.1. In such circumstances, for the reasons best known to P.Ws.1 and 4, they set the criminal law into motion by using the machinery of C.B.I. There cannot be any dispute that when the two views are reasonably possible in the evidence adduced by the prosecution, the view which is favourable to the Accused Officer has to adopted. The aspect with regard to the official favour to be shown by the Accused Officer has not been considered by the trial Court since it is the main ingredient to constitute the offence under Section 7 of the Act. The trial Court ought to have appreciated the evidence with regard to this aspect. Because the Accused Officer accepted the receipt of tainted currency notes, the trial Court has drawn the presumption under Section 20 of the Act. Mere recovery of the tainted currency notes by itself would not lead to a conclusion to infer that the necessary ingredients of the offence under Section 7 of the Act have been proved. Therefore, the trial Court committed a serious mistake in not considering the case with reference to the necessary ingredients to constitute the offence. In view of the above discussion, this Court has no hesitation in holding that the prosecution failed to establish the guilt of the Accused Officer beyond all reasonable doubt for the charges levelled against him. 21. In the result, the convictions and sentences passed by the learned Special Judge for CBI Cases, Visakhapatnam, in the judgment, dated 04.02.2002, in C.C.No.22 of 1999, against the Accused Officer of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act are set aside. The appellant is found not guilty of the offences levelled against him and accordingly he is acquitted. The bail bonds of the appellant/accused shall stand cancelled. The fine amount, if any, paid by the appellant