HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.No. 288 of 2002. DATE: 18-03-2010 Between: Mohd. Aleemuddin Appellant And The State of A.P. rep. by its Public Prosecutor. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.No.288 of 2002 JUDGMENT: This Appeal is directed against the judgment, dated 21-02-2002 passed in C.C.No.27 of 1998 on the file of the Principal Special Judge for SPE and ACB Cases, Hyderabad, whereby and whereunder the Accused herein was found guilty for the offences punishable under Sections 7, 11 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘Act’), and was sentenced to suffer Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/-, in default to suffer Rigorous Imprisonment for three months for the offence under Section 7 of the Act and to suffer Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/-, in default to suffer Rigorous Imprisonment for three months for the offence under Section 13(1)(d) of the Act. Both the substantive sentences were ordered to run concurrently. 2. For the sake of convenience, the Appellant will be referred to as Accused hereinafter. 3. The brief facts of the case are as follows: The Accused was working as Parishad Educational Officer of Warangal Zilla Parishad from 28-11-1991 to 14-11-1997, as such he is a public servant within the meaning of Section 2(c) of the Act. The specific charge against the Accused is that on 14-11-1997 at about 8.00 AM as per the earlier demand, he demanded and accepted an amount of Rs.1,000/- from one N. Chandramouli (PW-1) as gratification other than legal remuneration as a motive or reward for showing official favour i.e., to prepare and issue a lien order for reporting at P.G. Centre in Kendriya Vidyalaya Sanghatan Office, Gwalior. 4. PW-1 was working as a Teacher in Primary School, Pasra Village, Warangal District. He applied for the post of P.G. Teacher in Kendriya Vidyalaya Sangathan, New Delhi. He was selected and orders were issued directing him to join on or before 31- 10-1997, for further placement order. Since PW-1 had already put in 15 years of service by that time, he was not willing to forego his service as a Primary School Teacher and therefore, he applied for lien. Accordingly, on 29-10-1997 he went to the office of the Accused and represented that he may be granted lien and the Accused also informed him that he is entitled for lien. PW-1 presented an application requesting him to relieve immediately on lien and further informed that he had to report to duty on 31-10-1997. The application was addressed to the Chief Executive Officer, Warangal (PW-3). From 29- 10-1997 onwards, PW-1 was visiting the office of the Accused till 04- 11-1997 and as he did not get any favourable orders, he left for Gwalior on 04-11-1997. He was given placement orders at Gwalior to join on or before 15-11-1997 at Kendriya Vidyalaya No.III, Gwalior. On 07-11-1997, PW-1 went to the office of PW-3, who in turn told that the relevant GO had to be perused and asked him to contact the concerned to put up his file. On earlier occasion, one Ravichandra, who was also working as Primary School Teacher, was granted lien. The case of PW-1 is similar to the case of the said Ravichandra. From 07-11-1997 to 11-11-1997, PW-1 was visiting PW-3 as well as the Accused for the same purpose. Finally he was informed by PW-3 that he had to resign to his job and report at Gwalior. But the staff members working in the office of PW-3 informed him that PW-3 was expecting some bribe amount from him. On 13-11- 1997, PW-1 was waiting at the office of PW-3 and in the evening the Accused informed him that his work would not be completed unless the demand of PW-3 for money is met. The Accused further informed PW-1 that he had to pay a sum of Rs.1,000/- towards bribe and further directed to pay the amount to him on the next day morning for handing over the same to PW-3. Since PW-1 was not intending to give bribe amount, he presented Ex.P-1, complaint, to the DSP, ACB, Warangal at about 9-00 PM on the same day. 5. PW-5, who was working as DSP, ACB, Warangal, having received Ex.P-1, complaint, from PW-1, verified its contents and obtained permission from the superior officers and issued Ex.P-9, FIR. Then he secured the presence of PW-2, Dr. M. Shyam, Veterinary Assistant Surgeon, V.D. Department, Hasanparthy and another mediator, Dr. T. Premananda Rao, Medical Officer, GAD, Hasanparthy and introduced PW-1 to the mediators and asked them to enquire about the contents of Ex.P-1 with PW-1. After the mediators enquired with PW-1 about the contents of Ex.P-1, PW-1 produced the proposed bribe amount of Rs.1,000/- in Rs.100/- denomination. After noting down the numbers of the currency notes and after explaining the significance of the phenolphthalien powder test, after it’s due demonstration and after directing PW-1 to offer the bribe amount to the Accused only on his demand and to give prearranged signal soon after the bribe amount is accepted by the accused and after drafting a mediator panchanama under Ex.P-2, PWs.1 and 2 and other trap party members proceeded in a jeep to the hotel situated opposite to the office of the Accused about 7-45 AM. PW-1 met the Accused at the hotel called “meeting point”. PW-1 enquired the Accused as to what happened to his request. Then the Accused once again reiterated that unless the request of PW-3 is complied with, his work would not be completed. Then PW-1 told the Accused that they would proceed to the office of PW-3. Then the Accused went to the office of PW-3 and brought the file of PW-1 from the office of PW-3 to his office room and asked PW-1 whether he brought the bribe amount. PW-1 informed the Accused that he had brought the money and gave the amount to the Accused requesting to pay the same to PW-3. Then he came out of the office room of the Accused and gave prearranged signal to the trap party. Then the trap party, headed by PW-5, rushed to the office of the Accused. The Accused was found sitting in his chair. PW-5 introduced himself and the mediators and asked the Accused whether he received the bribe amount from PW-1. The Accused at the first instance denied the same and subsequently gave the statement, which was incorporated in Ex.P-3, second mediators report. Then PW-5 got prepared sodium carbonate solution in three different tumblers and the Accused was asked to rinse him fingers of both the hands separately in each tumbler and when the Accused rinsed his fingers, the colourless solution turned into pink colour. Then on demand by PW-5, the Accused took out money from the side shirt pocket. The numbers of the currency notes were verified which tallied with the numbers noted in the first mediators report. The shirt pocket of the Accused was also subjected to sodium carbonate test, which gave positive result. The shirt of the Accused and the resultant solutions of both the hand fingers of the Accused were separately sealed and labeled. The concerned file in Ex.P-4 was seized from the custody of the Accused. The statement of PW-1 was also taken and the gist was recorded in the mediatornama. PW-6, the then Inspector of Police, ACB, took up investigation from PW-5, recorded the statement of PW-3 and after obtaining the analyst report and sanction for prosecuting the Accused and completing investigation, he laid charge sheet against the Accused. 6. Since the accused pleaded not guilty, the prosecution, in order to prove its case, examined PWs.1 to 6 and got marked Exs.P-1 to P-9. On behalf of the Accused, DWs.1 to 5 were examined and Exs.D-1 and D-2, explanations of the Accused, were got marked. 7. The learned Special Judge, after appreciating the oral and documentary evidence, believed the prosecution case and accordingly convicted and sentenced the Accused as stated above. Being aggrieved by the same, the present Appeal has been filed. 8. The learned counsel for the Accused submits that the Accused was not the authority to grant lien and PW-3, who was working as Chief Executive Officer, Zilla Parishat, was the competent person to grant lien to PW-1. It is further submitted that as far as the accused is concerned, he had already recommended the case of PW- 1 to PW-3 and in such a case, no official favour was pending with the accused and therefore, the question of demanding any amount by the Accused does not arise. 9. It is also submitted that the conviction is based on mere recovery of amount and the presumption under Section 20 of the Act was wrongly drawn and in the absence of any demand, no presumption could be drawn. 10. It is further submitted that when PW-1 himself admitted that he had no suspicion against the Accused and that it was the amount to be paid to PW-3, and when the accused had not demanded any amount for himself and when he had no mens rea, no offence is made out. It is further argued that even if it is held that the Accused had collected the amount from PW-1 for the purpose of paying the same to PW-3, it is clear that he had no intention and he cannot be convicted for the offence under Section 13 (1) (d) read with 13 (2) of the Act. It is further argued that PW-1 had put the amount in the hand of the Accused with a request to handover the same to the CEO (PW- 3) and therefore, literally it amounts to thrusting the amount into the hands of the Accused. 11. It is further argued that the evidence of defence witnesses cannot be rejected merely because they are examined by the Accused. It is also submitted that their evidence clinchingly establishes the defence case of the Accused. 12. Per contra, Sri V. Ravikiran Rao, the learned Special Public Prosecutor for ACB, submits that it is the Accused, who had given an impression to PW-1 that PW-3 was demanding the amount and that unless the amount is paid, his file will not be cleared. It is further argued that PW-3 never demanded any amount and that it is the Accused who demanded money in the name of PW-3. 13. It is further argued that even if the Accused had collected the bribe amount meant for PW-3, the Accused knows that it is the bribe amount and even if he accepts the amount on behalf of some other personal, the same attracts the ingredients of Section 13 (1) (d) read with 13 (2) of the Act. It is further submitted that when a demand is made and the bribe amount is accepted either for himself or for any other person, the offence under Section 13 (1) (d) of the Act is made out. 14. The learned counsel for the Accused relied on the Judgment in the case V. VENKATA SUBBARAO v. STATE REPRESENTED BY INSPECTOR OF POLICE, A.P. [1], wherein it was held that where the prosecution case is not consistent and its version is doubtful, the conviction is not sustainable. He has also relied on the decision in the case T. SUBRAMANIAN v. STATE OF TAMIL NADU [2], wherein the Supreme Court gave benefit of doubt when the plea of the Accused that the money was given by the complainant on behalf of witness towards lease rent due appears plausible and when the complainant is inimical towards the Accused. 15. The learned Special Public Prosecutor has relied on KRISHNA RAM v. STATE OF RAJASTHAN [3], wherein it was held that once the money was recovered from the possession of the appellant, the burden under Section 20 shifts upon him. 16. In the light of the rival contentions, the points that arise for consideration are: 1. Whether the Accused was not in a position to do official favour to PW-1? 2. When the evidence on record shows that the Accused had obtained the amount for other person, but not for himself, whether an offence under Section 13 (1) (d) is made out? 3. Whether the evidence of the defence witnesses is probable and acceptable? and 4. Whether presumption under Section 20 of the Act can be drawn in the facts and circumstances of the case? 17. It is not in dispute that PW-1 was working as a Teacher in Primary School, Parasa village and he was selected for the post of P.G. Teacher in Kendriya Vidyalayam Sangathan, Gwalior and that he applied for lien. He had to report to duty on or before 31-11-1997. From 29-10-1997 onwards, he was visiting the office of the accused, but he did not get any favourable orders till 04-11-1997. Then, he left for Gwalior on 04-11-1997 and he was given placement orders to report on or before 15-11-1997 at Kendriya Vidyalaya No.3, Gwalior. On 07-11-1997 he again went to the office of the accused and requested him to issue orders. Admittedly one Ravichandra, who was working as primary Teacher, was granted lien and the case of PW-1 was similar one. From 07-11-19997 to 13-11-1997 he regularly met the accused. He had also met PW-3, the Chief Executive Officer, who in turn informed to PW-1 that he had to resign for his job and report at Gwalior. Then the staff of PW-3 informed PW-1 that his file will not be cleared unless PW-3 was paid bribe amount. He waited till 13-11- 1997 evening. On the evening of 13-11-1997, the accused informed PW-1 that his work will not be completed unless the demand of PW-3 for money is met. The Accused further informed PW-1 to pay an amount of Rs.1,000/- on the next day morning for giving the same to PW-3. Since PW-1 was not intending to give the bribe amount, he approached the DSP, ACB and lodged Ex.P-1, complaint. 18. As seen from the evidence, PW-3 was working as Chief Executive Officer, Zilla Parishat, Warangal, during the relevant period. According to him, PW-1 submitted an Application with a request to relieve him while maintaining lien in the department on the ground that he was selected as Graduate Teacher in Kendriya Vidyalaya. He further deposed that the Accused processed the said application and on 05-11-1997 he (PW-3) made an endorsement to the effect that clarification may be sought from the Director of School Education. According to PW-3, in the meanwhile, the teachers union represented that in a similar case in 1985, lien was granted. Then PW-3 directed the Accused to put up the rule position and made an endorsement on the application to that effect on 11-11-1997 in Ex.P-4. Thereafter the file was not sent to him from the office of the Accused. 19. According to DW-5, who was working as Superintendent during the relevant period, he had dealt with Ex.P-4 file. He says that there was no delay on the part of the accused and that from 11-11-1997 to 13-11-1997 the file was with one Agaiah, the concerned section clerk. In the cross-examination DW-5 deposed that he does not know what conspired between the accused and PW-1 on the subsequent dates and whether the accused demanded any amount or not. 20. Admittedly PW-1 had to report at Gwalior on or before 15-11-1997. Though there was an endorsement to put up the file with rule position on 11-11-1997, there was no further progress in the matter. According to PW-1, on 11-11-1997, he met PW-3, who in turn informed him that PW-1 had to resign to his job to report at Gwalior. Thus it is clear that PW-3 also tried to pressurize PW-1. Then PW-1 was informed by the office staff and others that unless some amount is paid to the CEO, his file will not be cleared. According to him, on 13- 11-1997, the Accused informed him that unless an amount of Rs.1,000/- is paid to the CEO, his work will not be done. Thus the Accused asked PW-1 to handover Rs.1,000/- to him for giving the same to the CEO. It may be a fact that the Accused might have made the required endorsement on the file in favour of PW-1. It may be also a fact that PW-1 did not entertain any suspicion against the Accused. It is also a fact that according to PW-1 he met the Accused from 07-11- 1997 to 13-11-1997, but the Accused never demanded money for himself for doing favour to him. The specific case of PW-1 is that on 13-11-1997, the Accused informed him that PW-3 (CEO) was expecting money from him. 21. A reading of the evidence of PW-1 reveals that the concerned file in Ex.P-4 was on the table of PW-3 at the relevant time and the Accused went into the office room of PW-3 and brought the file to his office room. Then the Accused asked him whether he brought the bribe amount and PW-1 stated that he had brought the amount and gave the tainted currency notes to PW-1 requesting him to pay the same to PW-3 (CEO) and came out of the office room of the Accused and gave prearranged signal to the trap party. 22. PW-2, the mediator, speaks about the pretrap proceedings and subsequently says that when PW-1 came out of the office room of the Accused and gave signal, he along with other ACB officials rushed to the office of the accused. He says that the sodium carbonate solution was prepared in two glass tumblers and the accused was asked to rinse his fingers in those tumblers separately and when the Accused rinsed his right hand fingers, the colour changed into pink and when the left hand fingers were rinsed in another glass, there was light change in the colour. PW-1 was then enquired and the gist of his statement was noted in the mediators report. The DSP seized the file in Ex.P-4, found on the table of the Accused and M.O.1, cash. 23. Thus the evidence of the PW-2 shows that when the Accused rinsed his fingers in the sodium carbonate solution, the solution turned into pink colour and even the inner flap of the shirt pocket of the accused, which was subjected to sodium carbonate solution, also gave positive result. Therefore, the evidence of PWs.2 and 5, proves that the carbonate solution had turned into pink colour giving positive result, when the Accused rinsed his fingers in that solution. POINT NO.1: 24. Though the evidence on record shows that the Accused had recommended the case of PW-1, it is clear that he demanded the amount on the ground that the bribe amount was to be paid to PW-3. He had also created an impression that unless the amount was paid by PW-1, his case would not be considered. A person need not be in a position to do official favour for demanding bribe. Even if he is in a position to give an impression that he would see that the work is done, or that he can influence the higher officers for doing such favour, such kind of impression itself is sufficient to induce the victim to pay the bribe amount. Therefore, I am of the view that the Accused had created an impression to PW-1 that unless the amount is paid to him for the purpose of paying the same to the CEO, his work would not be done. Therefore, though he was not in a position to do official favour, he had created an impression to PW-1 and such demand appears to be sufficient to bring home the guilt of the Accused within the meaning of Section 13 (1) (d) of the Act. POINT NO.2: 25. Section 13 (1) (d) of the Act reads as follows: 13. Criminal misconduct by a Public servant:-- (1) A public servant is said to commit the offence of criminal misconduct,-- (d) if he, -- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or” The above provision makes it very clear that even when the Accused, by corrupt or illegal means, obtains for himself o r for any other person any valuable thing or pecuniary advantage, the offence of criminal misconduct under Section 13 (1) (d) of the Act is made out. 26. It is also a fact that the Accused is not the competent authority to grant lein and it is PW-3 who is compentent to grant lein to PW-1. PW-1 categorically deposed that on 13-11-1997, the Accused informed him that his work will not be completed unless the demand of PW-3 (CEO) for money is met and an amount of Rs.1,000/- is paid to him for handing over the same to PW-3. Thus it is clear that the accused demanded Rs.1,000/- though it may be either for himself or to hand over to PW-3. The contention of the learned counsel for the Accused that the Accused never demanded bribe amount cannot be accepted in view of the clinching evidence against the Accused. 27. Thus it is clear that even if the Accused had accepted the amount for himself or for any other person, the offence under Section 13 (1) (d) of the Act is made out. Therefore, even if the version of the learned counsel for the Accused that the Accused had done his job and that the Accused had received the amount only for the purpose of meeting the demand of PW-3 and that the accused never demanded for himself, is accepted, an offence under Section 13 (1) (d) of the Act is made out. 28. If at all the Accused had nothing to do with the demand of the CEO, he would have simply directed PW-1 to meet the CEO and pay the amount directly to the CEO and there was no need for him to go to the chamber of the CEO and bring the file of PW-1 to his office room. 29. A reading of the entire evidence gives an impression that role of PW-3 was also not fair and that he had also threatened PW-1 and created circumstances compelling him to pay the bribe amount. Though PW-3 did not directly demand the amount, it appears that he was expecting money from PW-1 through the Accused. It is most unfortunate that the departmental action seems to be not initiated against PW-3 in this regard. Of course, it appears that PW-3 retired from service by the date of giving his evidence. POINT NO.3: 30. According to DW-1, he owns an STD booth and that he knows PW-1 and the Accused and that on 14-11-1997, he went to the hotel ‘meeting point’ at about 7-30 AM and at that time PW-1 came there and the accused was also present there and that PW-1 caught hold the hands of the accused and requested to obtain favourable orders from the CEO and that the Accused assured that he will look into the matter and so saying the Accused left his office. 31. According to DW-2, who is working as watchman in the office of the Z.P. office, Warangal, on 14-11-1997 at about 8-00 AM, while he was cleaning the tables, the Accused came to his office. DW- 2 further deposed that at that time PW-1 came there and caught hold the hands of the Accused and requested to keep the file before the CEO and while requesting him, PW-1 kept some amount in the shirt pocket of the Accused and went away. He says that at that time he was coming with a pot of water and