THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 887 of 2003 Date: 09.06.2010 Between: K.R. Chidanandaiah Setty. .. Appellant/accused And State of A.P., through ACB, Hyderabad, rep. by its Special Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Appeal No. 887 of 2003 Judgment: This appeal is directed against the judgment dated 21.07.2003 in C.C.No.20 of 1996 passed by the Additional Special Judge for SPE and ACB Cases, Hyderabad, whereby and whereunder, the appellant herein was found guilty for the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’) and convicted and sentenced him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.1,000/- , in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 7 of the Act. He was also convicted and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three months under Section 13(1)(d) read with Section 13(2) of the Act. Both the sentences were ordered to run concurrently. The appellant herein will be referred to as the accused for the sake of convenience. The brief facts that are necessary for disposal of this appeal are as follows:- The accused was working as Foreman – I Grade in Special Maintenance Section, Andhra Pradesh State Electricity Board, Kurnool, from 31.02.1994 to 04.11.1995, as such he was a Public Servant within the meaning of Section 2(c) of the Act. The electrical transformers which are damaged will be sent to the SPM Workshop Shed, Kurnool, for repairs. The accused was working in SPM Workshop Shed at Kurnool and he was a Foreman during the relevant time. His duties are to find out the damages and defects in the sick transformers received in the workshop from various places and maintain the record in respect of receipt of sick transformers and dispatch of healthy transformers to various places under T Note. P.W.1 – G. Venkateshwarlu is a resident of Dodengri Village, Adoni Mandal, Kurnool District. He was having five acres of land and an electric motor was fixed to the well in his land. He was irrigating his lands by drawing water from the said well with the help of the electric motor. P.W.2 V. Narsappa is also resident of the same village. He owns six acres of land. He is also having a well in his land and also irrigating his lands with the well water drawn through the electric motor. The transformer through which the lands of P.Ws.1 and 2 were getting electric supply to their electric motors was burnt, as a result of which there was no electric supply and P.Ws.1 and 2 were unable to save their standing crops. According to P.Ws.1 and 2, they along with some other ryots of the village went to Adoni and met the Assistant Engineer and Assistant Divisional Engineer, Electricity Department and requested them to replace the transformer which was burnt in order to save their standing crops. Though the Assistant Engineer and the Assistant Divisional Engineer, Electricity Department promised to look into the matter, there was no response from them for two days. Then, again on 30.10.1995, P.Ws.1 and 2 went to Adoni and met the Assistant Engineer and the Assistant Divisional Engineer, Electricity Department. Then, he directed them to be present in their village on 01.11.1995. According to P.Ws.1 and 2, the Electricity Department officials came to their village and removed the burnt transformer and loaded the same into a lorry brought by them. Then, P.Ws.1 and 2 also boarded the said lorry. The lorry was taken to Balaikallu village. There, another transformer which was burnt was also removed and loaded into the said lorry and one Sitaramaiah of Balaikallu village also accompanied them in the lorry. The lorry was brought to Kurnool Sub-division at about 03:00 P.M. on the same day. The transformers were unloaded at SPM Workshop. According to P.Ws.1 and 2, the lineman requested the accused to provide one healthy transformer to their village. According to P.W.1, the accused replied that he knows about it. Subsequently, when the lineman left the place, the accused called P.Ws.1 and 2 and told them that nobody will do any work without payment and demanded them to pay Rs.800/- as bribe for sending healthy transformer to their village. P.Ws.1 and 2 stayed there (at Kurnool) during the night. On the next day, one transformer was loaded in the lorry and Sitaramulu of Balaiakallu village was near the said lorry. Then, P.Ws.1 and 2 again met the accused and requested him to send healthy transformer to their village also. According to P.W.1, the accused then asked them to pay Rs.800/- as demanded by him on the earlier occasion and when P.Ws.1 and 2 informed that they had no money at that time, the accused stated that unless the amount is paid to him, healthy transformer will not be sent to their village. Then, according to P.W.1, they requested the accused to send the healthy transformer and made a promise that they would secure the amount by staying there (at Kurnool) and after making payment only, they will go to their village. According to P.Ws.1 and 2, thereupon, the accused agreed to send healthy transformer to their village also and further informed them that if they fail to pay the bribe amount demanded by him, he will telephone to their village and will get back the transformer already sent to their village even if it is fitted. Then the transformer was sent to the village of P.Ws.1 and 2. According to P.W.1, the accused also directed them to pay the bribe amount on the next day by 10.00 A.M. Then the lorry was sent to their village with the transformer. Since P.W.1 was not intending to pay the bribe amount, he approached an auto driver and requested him to take him to the ACB office at Kurnool, to lodge a complaint. According to him, on the way, he narrated the whole incident to the auto driver and also about the illegal demand made by the accused and requested him to write a report. Thereupon, the said auto driver had written Ex.P.1 – report. Then, P.W.1 went to ACB office and presented Ex.P.1 – report to the Deputy Superintendent of Police, ACB, Kurnool, (hereinafter referred to as ‘DSP’) on 02.12.1995 at about 08:30 P.M. P.W.8 – Ilyas Sait, who was working as DSP, ACB, Kurnool during the relevant period, having received Ex.P.1 – complaint from P.W.1, directed him to come on the next day with the proposed bribe amount. Then, P.W.8 got verified the antecedents of P.W.1 and having satisfied upon that, registered a case in Crime No.6/ACB- KUR/95 on 03.11.1995 and issued FIR under Ex.P.13. On 03.11.1995, P.W.8 secured the presence of two mediators, i.e., P.W.3 and another mediator by name P. Srihari. P.Ws.1 and 2 went to the office of the DSP on 03.11.1995 at about 03:30 P.M. Then, P.Ws.1 and 2 were introduced to the mediators by P.W.8 and then after following the due formalities and explaining the significance of the Phenolphthalein test and after making demonstration of the test and after noting down the currency note numbers brought by P.W.1 by the mediators, the First Mediators Report was prepared. Before preparing the First Mediators Report, the currency notes were treated with Phenolphthalein Powder and after ascertaining that nothing remained in the shirt pocket of P.W.1, the tainted currency notes were kept in the shirt pocket of P.W.1. M.O.1 is the tainted currency notes amounting to Rs.800/- consisting of one Rs.500/- note and three Rs.100/- notes. P.W.1 was specifically directed to pay the amount only on demand by the accused and to give pre-arranged signal immediately after the accused accepted the bribe amount. Accordingly, after completing the First Mediators Report – Ex.P.1, the whole trap party left the ACB office at 04:15 P.M. and reached the SPM Workshop where the accused was working at about 04:30 P.M. The trap party took vantage positions whereas P.Ws.1 and 2 went into the SPM Workshop. Then, P.Ws.1 and 2 met the accused. The accused, after questioning them as to why they came late instead of coming in the morning as promised by them, asked P.Ws.1 and 2 whether they brought the amount. When P.W.1 replied positively, the accused asked him to pay the amount. Thereupon, P.W.1 took out the tainted currency notes from his shirt pocket and handed over the same to the accused. The accused counted the amount and kept the same in his shirt pocket. Then, P.W.2 went out and gave pre- arranged signal. PW.8, having received pre-arranged signal, rushed to SPM workshop along with PW.3 and other trap mediator. After ascertaining the name of the accused, he disclosed his identity and introduced the mediators. Then he got prepared sodium carbonate solution in two glasses and asked the accused to rinse his both hand fingers separately. When the accused rinsed his both hand fingers separately the respective sodium carbonate solutions turned into pink colour. The solutions were sealed and affixed. Then on demand, the accused produced the bribe amount from his shirt pocket. The mediators verified the currency note numbers with the note numbers mentioned in the first mediator’s report - Ex.P4. The tainted currency notes of Rs.800/- in MO.1 were seized. The other articles found in the shirt pocket of the accused were also subjected to test. The inner lining of the shirt pocket of the accused was also subjected to sodium carbonate test and it gave positive result and the shirt was seized. The rough sketch of the scene of offence was prepared in Ex.P11. What all stated by the accused and PWs.1 and 2 was incorporated in the second mediator’s report and what all happened during the proceedings was also incorporated in that report. After obtaining sanction orders and completing formalities, the charge sheet was filed against the accused. The prosecution in order to prove its case has examined PWs.1 to 9 and got marked Exs.P1 to P13 and MOs 1 to 9. On behalf of the accused DW.1 was examined and Exs.D1 to D3 were marked. The learned Special Judge believed the case of the prosecution and convicted the accused as stated supra. Learned counsel for the accused submitted that the learned Special Judge has grossly erred in finding the accused guilty and convicting him for the alleged offences. It is submitted that the learned Judge failed to consider that no outsider had access to SPM Workshop shed and therefore there was no chance for PWs.1 and 2 to meet the accused officer on 01.11.1995 or on 02.11.1995. It is further argued that the important witnesses like Lineman Tikkanna and Seeta Ramulu are not examined in this case to prove the presence or non-presence of the accused in the SPM shed. It is further argued that the complaint given by PW.1 is motivated and it was lodged at the instance of one Lineman Tikkanna, who was on inimical terms with the accused. It is also argued that the learned Special Judge failed to consider that the Lineman Tikkanna, PW.1 and 2 and Seeta Ramulu belong to CPI(M) party and that they in a preplanned manner implicated the accused in this case since the Lineman Tikkanna was not given any importance in the shed and that his word was not prevailing in the shed. It is further argued that the accused was not the person to receive the sick transformers or to send the healthy transformers from the shed and it was the Additional Assistant Engineer (PW.5) who was the concerned officer. It is further submitted that since the accused has no role to play in sending the healthy transformers, there was no occasion for the accused to demand the bribe amount. It is further argued that PW.1 was not only the beneficiary, but there were other ryots who were not getting water due to failure of transformer and there was no need for PW.1 alone to pay the bribe amount to the accused. It is also argued that there are material contradictions in the evidence of PWs.1 and 2 and that according to PW.1 the accused agreed to send the transformer after giving an assurance that the bribe amount would be paid on the next day, but, PW.2 did not whisper anything about the assurance given by PW.1. The version of PWs.1 and 2 also differing on several material aspects with regard to place where they slept during those three days at Kurnool and also with regard to time when the accused asked them to pay the bribe amount. It is further argued that as per the record the transformer was burnt on 29.10.1995 but according to PWs.1 and 2 the transformer was burnt about 20 days prior to the date of trap. It is also argued that on the same day the transformer was sent to Balaikallu village on the request of one Seeta Ramulu and nothing prevented the accused from demanding the bribe amount from Seeta Ramulu and it is not the case of the prosecution that the accused demanded bribe amount from the said Seeta Ramulu. It is also argued that the version of PW.1 that an auto driver prepared Ex.P1 complaint cannot be believed. It is further argued that if at all the accused was demanding any bribe, he would not have sent the healthy transformer and he would have sent the transformer only after collecting the money from PWs.1 and 2. It is further argued that the record shows that there was no delay in sending the transformer and everything was done as per the rules and in accordance with the procedure, and therefore, the allegations of PWs.1 and 2 are false. It is also argued that since the transformer was already sent to the village there was no necessity for PW.1 to pay the bribe amount on the next day. It is also argued that the evidence of PW.1 that he met the officials and requested them to send the healthy transformer is not supported by the evidence of any of the officials of the electricity department. It is also argued that according to PW.1, PW.4 came to their village, but PW.4 did not whisper anything about the same. It is also argued that no evidence has been adduced by the prosecution that PW.1 is having any agricultural land or that a motor is fixed to his well in the land or that he is cultivating with the help of said motor. It is also argued that the prosecution failed to examine the Lineman Tikkanna who would have deposed whether there was any hesitation on the part of the accused in sending the healthy transformer to the village of PW.1. It is also argued that PWs.1 and 2 are not reliable witnesses and the lower Court ought not to have accepted their evidence. Sri V. Ravi Kiran Rao, learned Special Public Prosecutor for ACB Cases, argued that since the crops of PWs.1 and 2 were being damaged they approached the accused for healthy transformer and that there is no need for PW.1 to give a false report and there is no enmity between the accused and PWs.1 and 2 and in fact PWs.1 and 2 are strangers to the accused. It is also his submission that there is nothing on record to say that PWs.1 and 2 acted as per the directions of the Lineman Tikkanna and that there were any disputes between the accused and the Lineman Tikkanna. It is further argued that the evidence of PWs.1 and 2 proves that the accused demanded a bribe of Rs.800/- for sending healthy transformer to the village of PWs.1 and 2 and when PWs.1 and 2 promised that they would stay at Kurnool itself till the amount is paid, then only the accused agreed to send the transformer to the village of PW.1. It is further submitted that the accused threatened PWs.1 and 2 that if the bribe amount is not paid by next day the transformer would be brought back. It is further argued that the accused has not denied about the receipt of money at the time of post trap proceedings. It is also argued that the evidence of mediators clinchingly establish that the accused had produced tainted currency notes immediately after the trap and the phenolphthalein test proved positive. It is further argued that there are minor discrepancies in the evidence of natural and truthful witnesses and in view of the delay in holding trial the memory of the witnesses may fade and much importance need not be given to the minor discrepancies. It is further argued that once the prosecution established that the accused had received the bribe amount and tainted currency notes have been recovered from his possession the presumption under Section 20(1) of the Act has to be drawn against the accused. It is also submitted that the transformer was burnt about 20 days prior to the date of trap, but it was not recorded by the electricity department officials and if they record the same they have to immediately send the substitute transformer and in view of the same the evidence of PWs.1 and 2 need not be doubted. In reply, the learned Senior Counsel for the accused submitted that no official favour was pending with the accused as on the date of trap. The points that arise for consideration are; (1) whether there was any motive for PW.1 to falsely implicate the accused in this case and (2) whether the prosecution has proved its case beyond reasonable doubt. It is not in dispute that PWs.1 and 2 are residents of Dodengri village, Adoni Mandal, Kurnool District. The suggestions given to PW.1 go to show that the Lineman Tikkanna is member of CPIM and that PW.1 is also a member of CPIM and that when the Lineman Tikkanna requested the accused to send the transformer to the village of PW.1 the accused questioned him as to who is he to recommend for supply of transformer and thereupon PWs.1 and 2 and Lineman Tikkanna colluded and falsely implicated the accused in this case by creating Ex.P1. It is argued that PW.1 admitted in the cross-examination that he is the member of CPIM and that Seeta Ramulu is also member of CPIM and that as the word of Tikkanna was not prevailing in the workshop they falsely implicated the accused in this case. Except giving suggestions to PWs.1 and 2 there is nothing on record to show that there were any disputes between the accused and Lineman Tikkanna. On behalf of the accused DW.1 was examined. DW.1 was also working in the same SPM workshop during the relevant period. Dw.1 also did not whisper that there were any disputes between the accused and Lineman Tikkanna. Thus, absolutely there is nothing on record to show that there were any ill-feelings between the accused and the Lineman Tikkanna or that at the instance of said Lineman PWs.1 and 2 falsely implicated the accused in this case. Merely because PW.1 is member of CPIM, that does not mean that he has falsely implicated the accused in this case and that he is wholly unreliable witness. No person can be impeached merely because of his political affiliations. The case of PWs.1 and 2 is that the transformer failed about 20 days prior to the date of trap and that they met the Assistant Engineer and the Assistant Divisional Engineer and requested them to replace the transformer and finally on 01.11.1995 the electricity officials came in a lorry to their village and shifted the sick transformer from their village and also from the village Balaikallu and that the sick transformers were unloaded at SPM workshop. Their further case is that when their Lineman requested the accused to send the healthy transformer to their village the accused replied that he knows about it. The specific case of PWs.1 and 2 is that the accused called them and demanded to pay Rs.800/- as bribe for sending the healthy transformer to their village. Then on the next day, only one healthy transformer was loaded in a lorry and that Seeta Ramulu of Balaikallu village was near the lorry and both PWs.1 and 2 approached the accused and requested to send the healthy transformer to their village. Then the accused reiterated his demand of Rs.800/- and when PWs.1 and 2 pleaded that they had no money and promised to pay the amount on the next day the accused agreed to send the transformer, but however, threatened PW.1 stating that if the agreed bribe amount is not paid on the next day he would get back the transformer sent to their village even if it is fixed. So, in the above circumstances, PWs.1 and 2 decided to meet the ACB officials. They boarded an auto and requested the auto driver to take them to ACB office and on the way they narrated the illegal demand made by the accused to the auto driver, and the auto driver had written Ex.P1 complaint to the dictation of PW.1. Then PW.1 presented the said complaint to the ACB officials. The main contention of the learned counsel for the accused is that the evidence of PWs.1 and 2 is contradicting with regard to conversation that had taken place between them and accused, and according to PW.1 when they promised to pay the bribe amount the accused agreed to send the transformer and further threatened that if the bribe amount is not paid he would see that the transformer is brought back, but according to PW.2 on the next day when they approached the accused, the accused asked them whether they had brought the amount and when they informed that they did not secure the money the accused told them that the transformer was not yet repaired and by saying so he pushed them from that place and closed the gate and then they went and approached the DSP, ACB. It has to be seen that PWs.1 and 2 were examined on 02.06.1999. The alleged date of trap is on 03.11.1995. It is, but natural that the witnesses may not remember all the minute facts after passing of a considerable period. Human memory has certain limitations. More over the memory power and power of observation differs from person to person. A person may not remember all the incidents and details of those incidents. However, a close reading of the evidence of PWs.1 and 2 reveals that there is no much contradiction in their versions. PW.2 deposed that on the date of trap they approached the accused at the place where the accused was working and on seeing them the accused questioned as to why they came late instead of coming in the morning as told by them. According to him, then the accused asked them whether they brought the money for which PW.1 stated that he brought the money. This part of evidence of PW.2 establishes that there was some conversation between the accused and PWs.1 and 2 after one transformer was loaded in the lorry and this shows that PWs.1 and 2 promised to pay the money on the next day morning as per the demand of the accused. Thus, it appears that there is no much contradiction in the version of PWs.1 and 2. According to the learned counsel for the accused, PW.1 in Ex.P1 complaint stated that the accused asked them to come on the next day evening, but when PW.1 was examined in the Court, he deposed that the accused directed them to pay the bribe amount on the next day morning by 10.00 AM. It is also argued that according to PW.1 on 01.11.1995 and on 2.11.1995