THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1138 of 2002 JUDGMENT: 1. The appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment dated 01.10.2002 in C.C.No.16 of 1998 on the file of the Special Judge for SPE & ACB Cases-cum-II Additional District & Sessions Judge, Nellore, 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 {“the Act” for brevity}, and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,000/- and in default to suffer rigorous imprisonment for one month, under each count. 2. The case of the prosecution may be stated briefly as follows. The accused officer worked as Senior Assistant in the Government Degree College, Karvetinagaram, Chittoor District. P.W.1’s father died in the year 1995, while working as Special Grade Teacher in Vinobha Nagar, Nagalapuram Mandal, Chittoor District. Thereafter, P.W.1 was appointed as Junior Assistant on compassionate grounds. He reported to his duty on 23.04.1997 after completion of necessary formalities. The appellant being a Senior Assistant of the college, entered the name of P.W.1 in the attendance register relating to non-teaching staff. P.W.1 attended his duties as Junior Assistant and marked his attendance accordingly. Later the appellant did not allow him to mark his attendance in spite of making several requests, nor prepared the salary bill though he attended his duties for eight days in the month of April, 1997. When P.W.1 questioned the appellant, the appellant informed him that he was not eligible for drawing salary for that eight days as those days fell during summer vacation and only the candidates allotted by Andhra Pradesh Public Service Commission would be eligible for the same. Further on 2.5.1997 the appellant informed P.W.1 that he usually takes a bribe of Rs.10,000/- from the candidates appointed on compassionate grounds and demanded him to pay at least Rs.2,000/- to draw his salary. Then again in the month of May the appellant prepared salary bills and handed over the same to P.W.1 to obtain the signatures of the Principal who was residing at Tirupati. When he verified he did not find his salary bill. When he questioned the appellant, he allegedly informed him that generally salary bills of an employee appointed on compassionate grounds will not prepared unless he was a candidate allotted by service commission and further that he would intimate to the Higher Education department that the services of P.W.1 would not be necessary. And further said that his salary bills would be prepared from 1.7.1997 and reminded him for the payment of Rs.2,000/- as bribe to him. On 22.5.1997 he went to the Principal at Tirupathi for obtaining the signatures on the bills and complained him about the appellant. Principal informed him that he would look into the matter. On 25.5.1997 P.W.1 along with his uncle P.W.2 went to the house of the appellant and told him that he was not in a position to pay Rs.2,000/- then the appellant replied that he would not take less than Rs.2,000/-. Then again on the next day also he requested the appellant in the college but he did not oblige. Then P.W.1 constrained to agree to the demand and informed him that he would arrange for the amount and come back. On 27.5.1997 at about 11 A.M. P.W.1 along with P.W.2 went to the A.C.B. Office at Tirupati and gave a report to the Deputy Superintendent of Police (P.W.4) which is marked as Ex.P5. P.W.4 registered the same as case in Cr.No.6/RC-TP5/97 and issued FIR marked as Ex.P16. Then on the next day mediators P.W.4 and another were introduced to P.W.1 and the contents of the report were read over and P.W.1 handed over the amount of Rs.2,000/- and the copies of Ex.P1 to 4 to P.W.4. Then the serial numbers of the currency notes were noted and the phenolphthalein powder was applied to the currency notes and placed in the right pant pocket of P.W.1 and then entire procedure was explained to him. Then at about 10 A.M. they all started from ACB Office and reached Nagari at 11 A.M. Then P.W.4 and other trap party members took vantage positions near the house of appellant and P.W.1 proceeded towards the house by walk. P.W.1 went into the house and stood in the hall and the appellant asked him whether he brought the amount then P.W.1 took out the amount from his pant pocket and gave it to him. The appellant counted the amount and kept it in his diary and went inside his bed room. Then P.W.1 came out and gave the pre- arranged signal. On that, P.W.4 and trap party rushed to the house of the appellant and introduced himself and disclosed his identity. Then he prepared sodium carbonate solution in two different tumblers and asked the appellant to rinse his right and left hand fingers in each of the tumbler. Accordingly the appellant did so and the solution in both the tumblers turned into pink colour. The sample was preserved in two separate bottles MO.5 and 6. Then P.W.4 interrogated the appellant and the appellant handed over the currency from the diary to the mediator. The mediator checked serial numbers of the currency notes and found the same tallied with numbers of notes in Ex.P9. Ex.P12 is the post trap panchanama. The said currency notes were seized and marked as MO.1. The cotton swab rubbed against the dairly papers was also subjected to sodium corbonate solution, which turned into pink colour. MO.4 is the diary seized under Ex.P10. He further prepared rough sketch of the scene marked as Ex.P11. Later his house was searched, but no incriminating material was found. On the same day at 5.15 P.M. he collected Ex.P5, 6 and 13 and joining report from appellant. On 29.5.1997 P.W.1, the appellant and the Principal of College were examined and their statements were recorded on 30.5.1997. P.W.4 sent the properties and the documents seized to the Court. On 1.6.1997 he transferred the case to P.W.5 Inspector of Police, Range III ACB. P.W.5 took over the investigation and on 6.8.1997 he examined the relevant witnesses and recorded their statements. After completion the investigation and obtaining sanction order Ex.P15 on 22.12.1998 he filed the charge sheet. 3. The charges levelled against the accused are as under: Firstly:- On 28.05.1997 at about 11.15 a.m. at your residence, you being the Sr.Asst., Govt.Degree College, Karvetinagar, Chittoor Dist., i.e., a public servant within the meaning of P.C.Act, 1988, pursuant to your prior demand, again demanded and accepted a sum of Rs.2,000/- as illegal gratification or bribe other than legal remuneration from one B.Dilli Babu, Jr.Asst., Govt.Degree College, Karveti Nagar, Chittoor District, in order to do an official favour i.e., to draw the salary of b.Dillibabu (L.W.1) from 23.4.97 to 31.5.97 and you thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. Secondly:- That in the course of the same transaction and at about the same date, time and place mentioned in charge No.1, you being a public servant demanded and accepted the illegal gratification of Rs.2,000/- from one B.Dillibabu, Jr.Asst., Govt.Degree College, Karvetinagar, Chittoor Dist., in order to do an Official favour to him and that amounts to obtaining a pecuniary advantage by corrupt or illegal means and you thereby committed an offence punishable under Section13 (2) r/w.13 (1) (d) of the Prevention of Corruption Act, 1988 and within my cognizance. When the charges are read over and explained to the accused, the accused pleaded not guilty. 4. To substantiate the charges, prosecution examined P.Ws.1 to 5 and got marked Exs.P1 to P20-A, besides the case properties Mos.1 to 7. On behalf of the accused, D.Ws.1 to 4 were examined and no document is marked. 5. The trial Court accepted the evidence of P.W.1 with regard to demand and acceptance and P.Ws.3 and 4 who are mediator and trap laying officer respectively, with regard to the acceptance and seizure of currency notes, MO1, from the house of the accused, and found the appellant guilty and, accordingly, convicted and sentenced him as stated supra. Challenging the same, the present appeal is filed. 6. Now, the points for determination are whether the prosecution proved its case beyond all reasonable doubt for the charges under Sections 7 and 13 (1) (d) read with Section 13(2) of the Act and whether the judgment of the trial Court is correct, legal and proper? 7. The learned Senior Counsel, Sri C.Padmanabha Reddy, appearing for the appellant, contended that except the solitary testimony of P.W.1, there is no other evidence to show that the accused demanded bribe to show any official favour, that P.W.1 cannot be termed as wholly reliable witness and as a matter of fact, the trial Court has not placed any reliance on his evidence with regard to demand on 27.05.1997, that P.W.1 was irregular in attending to his duties and therefore, the appellant warned him to discharge his duties properly, but P.W.1 did not mend his attitude in coming to the office at correct time; that the appellant is not the authority to sanction salary bill of P.W.1 from 23.04.1997 to 31.05.1997 and that the Principal of the college is the competent authority to draw and pay the salary, that when the appellant is not the competent authority to show any official favour, the question of demand of any money does not arise; that P.W.2 who is uncle of P.W.1 did not support the case of the prosecution, though he was examined to prove about the demand; that the appellant received currency notes on the request made by P.W.1, to hand over the same to the Principal of the College, as P.W.1 was in a hurry to go to village in the neighbouring State; that the spontaneous explanation coupled with the evidence adduced on behalf of the appellant would clearly go to show that the amount received by the appellant is not towards showing any favour in discharge of his official functions and therefore, he prays to set aside the convictions and sentences recorded against the appellant. 8. On the other hand, the learned counsel appearing for the respondent contended that the appellant has to prepare the pay bill for the employees, that as P.W.1 was appointed on compassionate grounds, the appellant was in the habit of receiving not less than Rs.10,000/- towards bribe from such appointees, and to draw salary for the period from 23.04.1997 to 31.05.1997, he demanded at least Rs.2,000/- from the complainant; that P.W.1 has no grouse or enmity against the appellant and when P.W.1 was not attending to the duties at correct time, it is the Principal who has to give warning but not the appellant; that the evidence of P.W.1 is very clear that the appellant demanded Rs.2,000/- for showing official favour i.e., preparation of salary bill of P.W.1, and MO1 was seized from the house of the accused; that the theory of defence that the appellant received money to hand over the same to the Principal, is highly improbable; that there was no need for appellant to accept Rs.2,000/- on behalf of the Principal and P.W.1 can as well go to Tirupathi to pay the amount to the Principal, who is admittedly residing at that point of time, that the trial Court, after considering the evidence on record, rightly found the appellant guilty and the judgment of the trial Court needs no interference. 9. The essential ingredients of the offence under Section 7 of the Act, are - (i) that the person accepting the gratification should be a public servant; and (ii) that he should accept gratification for himself and the gratification should be as motive for doing or forbearing to do any official act or for showing or for bearing to show, in the exercise of his official function, favour or disfavour to any person. The essential ingredients of the offence under Section 13(1)(d) punishable under Section 13(2) of the Act 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. 10. It is not in dispute that the father of P.W.1 worked as Special Grade Teacher in Chittoor District. He died on 24.09.1995. P.W.1, his son, applied to the Collector of Chittoor District for appointment on compassionate grounds. The District Collector, Chittoor District, issued Ex.P1-proceedings dated 09.01.1997 appointing him as Junior Assistant in Government Degree College, Karvetinagaram. When he approached the Principal of the college, the Principal forwarded his application under Ex.P2 to the Regional Joint Director, Higher Education, Kadapa, who said to be competent authority. The Regional Joint Director issued proceedings under Ex.P.3 appointing him as Junior Assistant on 22.04.1997. As per Ex.P4-joining report, he joined in the Government Degree College, Karvetinagaram, on 23.04.1997. It is not in dispute that the accused was working as Senior Assistant in the same College. It is also not in dispute that the accused used to prepare the salary bills of the employees (teaching and non-teaching) of the College. According to P.W.1, the salary bills of the employees of the College have been handed over to him to obtain the signature of the Principal by name Shaik Salar {who was cited as L.W.5, but during the trial, he died}. He was residing at Tirupathi at that point of time. When P.W.1 saw the pay bills, his name did not find place and when he questioned the accused-officer as to why the salary bill for eight {8} days in the month of April 1997 was not prepared, the appellant stated that he joined in the vacation and the salary bill of the employees would be prepared only if candidate is allotted by Andhra Pradesh Public Service Commission. On 29.04.1997, P.W.1 went to Tirupathi and obtained the signatures of the Principal and presented the bills in Sub-Treasury, Puttur. It is the case of P.W.1 that on 02.05.1997, the appellant took him to the Treasury Office and drew the salaries of the employees from the Bank. Salaries were disbursed to the staff in the first week of May 1997. When P.W.1 came out from the College, the appellant met him and told him that he was taking Rs.10,000/- in the case of appointment under compassionate grounds and he has to give at least Rs.2,000/-, so that he (appellant) would prepare his salary bill. Similarly, the appellant prepared the salary bill for the month of May, 1997, and handed over the same to P.W.1 to obtain the signatures of the Principal at Tirupati and when he verified the same, he found his salary bill was not prepared. When he asked the appellant, the appellant told him that his bills would be prepared on 01.07.1997 and again reminded him to pay Rs.2,000/- as bribe. He went to Tirupathi, obtained the signatures of Principal on 22.05.1997 and when he complained to the Principal, he informed that he would sort out the issue on the College reopening day, i.e., on 01.07.1997. 11. It is the further case of P.W.1 that on 22.05.1997 at about 8 A.M., he took his uncle to the appellant’s house at Nagari and told that he was not a position to pay Rs.2,000/-. The appellant stated that he would not receive amount less than Rs.2,000/-. On 26.05.1997, when he went to the College, as usual, again the appellant repeated his demand and stated that he would not prepare salary bill unless the amount of Rs.2,000/- was paid. Then he went to P.W.4 and lodged Ex.P5-complaint. He was instructed to come on 28.05.1997. Ex.P.9, pre-trap proceedings have been drafted in the presence of three mediators duly applying phenolphthalein powder to the currency notes and the numbers of the currency notes have been incorporated in Ex.P9, pre-trap proceedings. Thereafter, P.W.1 went to the house of appellant at Nagari, where the appellant was residing in the first floor of the building, went to upstairs and entered into the house. The appellant asked him whether he brought the amounts of bribe and on that he told the appellant that he brought the amount. The appellant asked him to give the amount to him. Then P.W.1 took the amount from his pocket and gave to the appellant. The appellant received the amount, counted the currency notes and kept in a diary. The appellant went inside the bedroom and came out with empty hands. At that time he was wearing banian and lungi. Then P.W.1 came out and gave pre-arranged signal by wiping out his face thrice with handkerchief. Immediately, the Anti Corruption Bureau officials and mediators came to the upstairs of the building. P.W.4 questioned the appellant and when both hands fingers of the appellant were rinsed in sodium carbonate solution, the solution turned into pink colour. The amount was seized under cover of mediator report. 12. P.W.2 is none other than the uncle of P.W.1, who was examined by the police to speak about the demand made by the accused on 22.05.1997. But he did not support the case of the prosecution wih regard to demand of money made by the appellant in his presence. But he admitted that on 26.05.1997, P.W.1 told him that the appellant was demanding Rs.2,000/- to draw his salary. But P.W.1 did not state that he informed his uncle on 26.05.1997 about the appellant demanding any money. Therefore, the evidence of P.W.2 is not helpful to the case of the prosecution with regard to the demand by the appellant to show any official favour to P.W.1. 13. There cannot be any dispute that if the evidence of P.W.1 is put in the category of wholly reliable, then there is no difficulty to accept such evidence. There must be some reason or ground for P.W.1 to foist a false case of this nature against the appellant, who is working as Senior Assistant in the same College where P.W.1 is working. For the first time, P.W.1 was appointed on compassionate grounds and he joined as Junior Assistant in the college on 23.04.1997, P.W.1 has to work under the control of appellant. 14. It is not in dispute that the appellant has to prepare the salary bills of the employees of the College. Prior to the appointment, there is no evidence to show that P.W.1 was on inimical terms with the appellant. Therefore, there is absolutely no reason as to why Ex.P1- complaint had to be lodged within a span of one month after appointment. The reason for lodging the complaint is that the accused was demanding Rs.2,000/- for the purpose of preparing salary bill for the period from 23.04.1997 to 31.05.1997. The evidence of P.W.1 would go to show that the appellant would normally take Rs.10,000/- from the candidates appointed on compassionate grounds. Appellant also made it clear that he would not accept if the amount is less than Rs.2,000-. It is admitted by P.W.1 that unless attendance is marked, salary will not be drawn. He also admitted that from 17.05.1997 to till the date of trap, his attendance was not marked in the Attendance Register. Even such admission is to be accepted, but there is no bar for drawing the salary from 23.04.1997 to 17.05.1997 on which dates, admittedly, P.W.1 signed in the Attendance Register. The evidence of P.W.1 is clear that whatever work he was entrusted, he worked properly. Exs.P7 and P8 show that P.W.1 attended to despatch work on 16.05.1997, 19.05.1997, 23.05.1997 and 26.05.1997. When he was attending to duties on those days and when he was allowed to do work in the office, marking of his presence in the Attendance Register is only an empty formality. 15. It is not in dispute that the appellant was keeping the Attendance Register with him till 10.30 A.M. and after 10.30 A.M., he was keeping the Register in the almirah. With regard to the contention that P.W.1 entertained grouse against the appellant on the ground that he was chastised by the appellant because of his irregular attendance to the office. There is no evidence to show that the competent authority i.e., the Principal, issued any memos to him when he was not attending to the office regularly or coming to the office at 1 pm or 2 pm. It is not the case of appellant that he brought to the notice of Principal with regard to irregular attendance of P.W.1. The appellant is not the controlling or disciplinary authority of P.W.1 to take any action. It is the Principal, who has to take action on the report, if any, submitted by the appellant with regard to his irregular attendance. Therefore, there is absolutely no reason for P.W.1 to entertain a grouse or enmity against the appellant. 16. The contention of the appellant that at that point of time, P.W.1 was residing at Tirupathi and that P.W.1 was in the habit of coming to Karvetinagaram via Puttur in Saptagiri Express from Tirupathi to Puttur and reaching Puttur at 10.50 am where he used to catch a bus to Karvetinagaram, which is at a distance of 12 km from puttur, and therefore, P.W.1 was always coming to the office late, i.e., after 12 noon or 1 pm or 2 pm. But P.W.1 did not specifically state that he was coming from Tirupathi to Karvetinagaram via Puttur. He may be having a train pass but that does not mean that he was coming late to the office everyday. Even in such an event, it is the duty of the appellant to inform the same to the Principal. But, no such report has been given to the Principal. 17. The other contention is that the trial Court disbelieved a part of the evidence of P.W.1 with regard to the fact that he went and met the accused on 25.05.1997 at 8 am along with P.W.2 and therefore, P.W.1 is not a wholly reliable witness. Simply because P.W.2 did not support the case of the prosecution that he went along with P.W.1 to the house of the accused and that the accused demanded Rs.2,000/- in his presence, that does not mean the evidence of P.W.1 has to be disbelieved. The earliest version as stated by P.W.1 in Ex.P5 would clearly go to show that on 02.05.1997, when he went along with the appellant to the Sub-Treasury, Puttur, to bring the salary at 5 pm, the appellant told him that he takes Rs.10,000/- as bribe from the candidates appointed under compassionate grounds and Rs.2,000/- may be given to draw the salary. Similarly, on 25.05.10997, when himself and his uncle went to Nagari and met the appellant at his house, he demanded not less than Rs.2,000/- towards bribe. 18. If the evidence of P.W.1 is to be accepted, it is clear that there was a demand of Rs.2,000/- on 02.05.1997 and 25.05.1997 for preparing the salary bill of P.W.1 for the period relating to 23.04.1997 to 31.05.1997. Admittedly, the salary for the said period has not been drawn and paid to P.W.1. As the appellant was the preparing authority of the salary bills, there was a possibility for the appellant to demand some amount for showing favour. Since P.W.1 joined during vacation i.e., on 23.04.1997 and worked in the vacation till 31.05.1997, he is bound to get his salary. There was no evidence adduced by the appellant as to why the salary of P.W.1 for the relevant period had not been prepared by him, though he is legally entitled to receive the salary. No doubt, P.W.1 has not reported anything in writing to the Principal against the appellant for not preparing the bills nor informed about the conduct and attitude of the appellant to the other staff members, but at the same time, there is no