THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL NO.2513 of 2004 JUDGMENT: Appellant (a public servant) is the accused in C.C.No.51 of 2000 (old number C.C.No.89 of 1995) on the ﬁle of the Court of III Additional District and Sessions Judge –cum- Special Judge for SPE & ACB Cases, Visakhapatnam (trial court). The case is a ACB trap case. He was tried on charges under Sections 7 and 13(1)(d)(i) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act) on the allegations relating to bribery. 2. The trial court after considering the evidence let in by both sides by its judgment dated 10.11.2004 upheld the prosecution case and convicted the appellant of the aforesaid two charges/counts and sentenced him to undergo simple imprisonment (SI) for one year and to pay a ﬁne of Rs.1000/- on each count besides default clause prison sentences with regard to ﬁne amounts. Questioning the said judgment of the trial court the appellant has come up with this appeal. It may be noted that the whole matter is now at large before this court in this appeal. The details of the evidence let in by both sides are mentioned in the appendix of evidence given at the foot of the trial court judgment. 3. The appellant at the relevant time was Assistant Labour Oﬃcer, Circle-VI, New Gajuwaka, Visakhapatnam, and was admittedly an employee of the Government of Andhra Pradesh and a public servant within the meaning of the Act. P.W.1 Md.Jahiruddin (de facto complainant) was proprietor of a watch shop called Royal Watch Company, near Gajuwaka, Visakhapatnam and his shop at the relevant time was within the jurisdiction of the appellant. P.W.2 Gowri Shankar is a friend of P.W.1 and at the relevant time he was the proprietor of a shop called Kalyani Stationeries, Gajuwaka, Visakhapatnam and his shop is stated to be situate nearby the shop of P.W.1. 4. According to the prosecution the appellant visited the shop of P.W.1 in the ﬁrst week of December 1994 and inspected it and demanded P.W.1 a half yearly Mamul of Rs.600/- in the presence of P.W.2. It is stated that on 23.12.1994 the appellant again visited the shop of P.W.1 at 4.00 PM and again demanded him to pay a sum of Rs.600/- in the presence of P.W.2 as Mamul for three months period and also threatened to ﬁle cases against him if that Mamul was not paid. Further version of the prosecution is that on that day P.W.1 requested the appellant to reduce the amount expressing his inability to pay Rs.600/- and thereupon the appellant reduced it to Rs.300/- and demanded him to pay the amount within two days to him at his room. It must be mentioned here that it is the admitted case of both sides that appellant was running his oﬃce in a room in Gajuwaka area to conveniently exercise his supervisory powers over the shops and establishments in that area and which were in his jurisdiction and this is not in dispute. 5. According to the prosecution as P.W.1 was unwilling to pay the Mamul or bribe to the appellant he gave Ex.P.1 report at about 8.00 PM on 23.12.1994 to N.Saibaba the then ACB DSP at Visakhapatnam who was examined as P.W.4. The other details are not necessary. P.W.4 summoned the mediators i.e. P.W.3 A.Bhaskara Rao and another J.Samuel Raju both of whom were also public servants and after giving necessary instructions to P.Ws.1 and 2 laid a trap on 24.12.1994 which is said to have materialised at about 1.00 PM or 1.30 PM in the appellant’s room mentioned supra. 6. It is stated by the prosecution that both P.Ws.1 and 2 went to the oﬃce of the appellant and found him available there at about 1.30 PM and as pre-arranged P.W.1 paid the bribe amount of Rs.300/- to the appellant in his oﬃce and the same was recovered from the briefcase of the appellant in the post-trap proceedings under the cover of Ex.P.6 mediatornama in the presence of the mediators. It is also the case of the prosecution that the sodium carbonate – phenolphthalein test proved positive on both the hands of the appellant. All the material witnesses of prosecution supported the charges. The trial court accepted the prosecution case. 7. Before the merits in the appeal are taken up it must be mentioned here that Ex.P.27 is the sanction order dated 19.09.1995 by which the Principal Secretary to Government in the Labour, Employment, Training and Factories (Lab.IV) Department, Government of Andhra Pradesh, sanctioned the prosecution. No dispute has been raised on behalf of the appellant regarding the validity of the sanction. To repeat, it may also be noted that the appellant is a public servant. Hence to this extent it follows that there is no defect in the prosecution case. 8. Coming to the merits of the matter, regarding the payment of bribe amount of Rs.300/- marked as M.O.5 at trial, certain suggestions have been put to P.W.1 disclosing the defence of the appellant. The learned trial Judge who recorded the deposition has given paragraph numbers to the deposition of P.W.1 and these suggestions are found in para-29 of the deposition of P.W.1 which is in the cross examination portion. The said suggestions which were of-course denied by P.W.1 are as follows. “………It is not true to suggest that I am aware of payment of ﬁne amount in the residential room cum camp of A.O., on Saturdays. I paid Rs.100/- for the 2nd oﬀence for opening the shop on a Holiday. It is not true to suggest that I paid the ﬁne amount of Rs.100/- for opening the shop on 11.12.1994, on 24.12.1994 under Ex.D.7. It is not true to suggest that I signed on Ex.D.13 on 24.12.1994 at the time of my visit to the room cum camp oﬃce room of A.O. It is not true to suggest that on 24.12.1994 I kept the tainted currency notes in the brief case of A.O., while he was attending his oﬃce work. It is not true to suggest that only one Hundred rupee is visible to the naked eye and the remaining two hundred rupee notes are kept inside the one hundred rupee note by double folding. ………” (emphasis supplied) 9. The prosecution evidence shows that the amount of Rs.300/- in question was recovered from the brief case of the appellant in his room in the post-trap proceedings and the sodium carbonate test also proved positive. Thus the above suggestions themselves which show the line of defence taken by the appellant would make it clear that the recovery of the amount of Rs.300/- from his brief case is admitted by him also but the above suggestions would show that he came up with the defence that P.W.1 pretending to pay the ﬁne amount or the composition fee for violating the rule by keeping open the shop on a public holiday, he paid the amount of Rs.300/- in the above suggested manner i.e. by keeping two notes of hundred rupee denomination in the single note of hundred rupee denomination which he innocently received, and that is how P.W.1 implicated him in this case and that he is innocent. 10. The appellant did not take the above plea in his initial examination at the time of framing charges but he pleaded the above defence in his written statement ﬁled in the trial court after Section 313 Cr.P.C examination. It is well settled that even if an accused fails to plead a particular defence at the time of framing charges or in the examination under Section 313 Cr.P.C after the closure of the trial, if that particular defence is found probable and can be said to have been proved by a preponderance of evidence it can be accepted. It has now to be seen whether the aforementioned defence of the appellant can be accepted as a probable one on evidence. 11. S r i Padmanabha Reddy the learned Senior Counsel appearing for the appellant’s counsel placed heavy reliance upon Ex.D.13 Inspection Report bearing No.49420 which bears the date 24.12.1994 and the corresponding Ex.D.7 paper slip dated 11.12.1994 which purports to have been written at 3.55 PM on the same day i.e. 11.12.1994. 12. The plea of the appellant, as ampliﬁed by the learned Senior Counsel, is that on the date of the trap i.e. 24.12.1994 P.W.1 came to the oﬃce/room of the appellant to pay the compounding fee or ﬁne of Rs.100/- for keeping the shop open on 11.12.1994 which was a public holiday and as that was the second oﬀence of the appellant he had to pay Rs.100/- and therefore he paid that Rs.100/- on the date of the trap i.e. 24.12.1994 and while paying that Rs.100/- currency note he stealthily double folded the other two notes of Rs.100/- denomination in the aforesaid Rs.100/- note and kept it in his brief case. In this connection the appellant also examined two other merchants namely D.W.4 and D.W.5 of that area to show that on the said date they also came and paid the ﬁnes or composition fee in connection with the violation committed by them and they also saw P.W.1 paying the ﬁne of Rs.100/-. On the other hand Sri Ghani A Musa the learned Special Public Prosecutor for the ACB pointed out that the bribe money was admittedly recovered from the brief case of the appellant and the evidence of P.Ws.1 and 2 and the mediator and the ACB DSP would positively show that the appellant has demanded the money and in the circumstances the documents relied upon by the appellant must be rejected as having been brought into existence for the purpose of the defence. 13. It must be mentioned here that P.W.1 in his cross- examination admitted that Ex.D.7 paper slip and Ex.D.13 which is a Xerox copy of the inspection report contain his signatures. He however denied that he paid the ﬁne amount of Rs.100/- on 24.12.1994 i.e. the date of the trap. Here it should be noted that Ex.D.13 though a Xerox copy purports to be the Xerox copy of a printed proforma of the Labour Department and is named as Shops/Estt./Check Inspection Report and it bears the Serial No. 49420. It shows that the appellant’s shop was found to be kept open on 11.12.1994 which was a public holiday and therefore the said inspection should have been made on that date. Nothing is explained as to why the date 24.12.1994 which is the date of trap was put on the Ex.D.13. This Ex.D.13 is not a receipt. The date and time are filled by the ink. 14. Then coming to Ex.D.7 it is written on a paper slip. Even assuming for a moment that the Ex.D.7 paper slip was issued intimating the P.W.1 about the violation committed by him by obtaining his signature as acknowledgement it is not made clear as to why the appellant did not give the printed receipt for receiving Rs.100/- ﬁne amount from P.W.1 on 24.12.1994. It should be noted here that Ex.D.16 is the Inspection Report pertaining to P.W.1 for an earlier violation on 12.07.1993 and that violation related to not registering the shop of P.W.1. Ex.D.15 is the receipt also dated 12.07.1993 showing that he paid Rs.50/- ﬁne for that violation on the same date and this Ex.D.15 is a printed receipt got printed by the Labour Department indicating that it was the receipt to be given for the amount collected by the Government employee. This was also issued by the appellant. 15. Added to this Ex.P.16 is the receipt book ﬁled by the appellant himself and it shows that it contains the printed receipts to be issued for collecting registration fee, renewal fee and also compounding fee in case there is any violation by a merchant. In this Ex.P.16 receipt book also there is a carbon copy of the receipt bearing No.45508 pertaining to Royal Watch Company of P.W.1 but it shows that only a sum of Rs.62.50ps alone has been collected but the date appears to be 23.12.1994 which is a day prior to the trap date which is 24.12.1994 and in any event it is not Rs.100/-. This receipt pertains to Rs.50/- paid towards registration renewal and Rs.12-50 ps paid towards penalty. It is not the case of the appellant that he collected Rs.62-50 ps on the date of trap. Even in Ex.P.17 receipt book pertaining to collection of amount under A.P. Labour Welfare Fund Act 1987 there is a receipt bearing No.194046 dated 23.12.1994 showing collection of Rs.7/- towards the Labour Welfare Fund from P.W.1 and this is also a printed receipt. 16. It is thus clear that the practice in the department is to issue printed receipts even for composite fee, registration renewal fee and even amounts towards Labour Welfare Funds from the traders/ merchants and in fact the rules also require that any Government servant who collects amounts on behalf of the Government should issue printed receipts and account for the amounts. P.W.1 explained that he paid the aforesaid amounts on 23.12.1994 at his shop. The appellant did not issue any printed receipt to P.W.1 for the collection of Rs.100/- towards ﬁne on 24.12.1994 which is the date of trap and he did not ﬁle even his oﬃce copy of that receipt to show that on 24.12.1994 he collected Rs.100/- from P.W.1 towards compounding fee for keeping the shop open on 11.12.1994. It should also be noted that Ex.D.7 and Ex.D.13 contain only the writings of the appellant himself, which can be said to be self-serving, showing that P.W.1 has paid the ﬁne amount and they are not printed receipts. The question may however arise as to why both Exs.D.7 and D.13 should contain the signatures of P.W.1. So far as Ex.D.7 paper slip is concerned it bears the date 11.12.1994 and therefore the appellant could have taken P.W.1’s signature on that day intimating him about the violation and as an acknowledgement of service of that intimation on him. Then turning to Ex.D.13 it should contain the date 11.12.1994 only which was the date of inspection and it is possible that P.W.1’s signature on it was also taken on 11.12.1994 itself. In any event the failure of the appellant to give a printed receipt like the one marked as Ex.D.15 or any receipt in the proforma as found in Exs.P.16 and P.17 receipt books is a minus point for him. 17. It may then be noted that the appellant’s version is that after P.W.1 entered his oﬃce room on the date of trap he himself kept the money in his (appellant’s) briefcase. The appellant is a responsible public servant and he was in the oﬃce room on that day even going by his own version he was collecting ﬁne amounts or composition fee from the various traders or merchants. In such a case it was the duty of the appellant as a responsible public servant while receiving money from a merchant or trader like P.W.1 to count the money and then keep it at the place meant for it. This the appellant did not do. The appellant did not explain why he adopted the above procedure in allowing the P.W.1 to keep the money in his briefcase while he collected ﬁne amount from others. This explanation of the appellant is highly unbelievable as the appellant was duty bound to count the money and receive it when it was being paid for composition fee and issue a receipt. No public servant would allow such a procedure or give liberty to a trader when he is receiving the money towards a Government levy for which he is bound to issue a receipt. This conduct of the appellant shows that the prosecution case that he received the sum of Rs.300/- i.e. three notes of Rs.100/- denomination each to which phenolphthalein powder was applied, knowing fully well that it was towards the bribe or Mamul amount demanded by him becomes more probable. 18. On the above aspect it may be noted that the evidence of P.W.4 the DSP and the mediator would show that the Sodium Carbonate test was ﬁrst conducted on the hands of the appellant and it proved positive and thereafter on the disclosure made by the appellant the money was taken out by the appellant himself from his briefcase and handed over to the DSP. The above version is recorded in the second mediatornama Ex.P.6 also and this is not disputed. Thus if the appellant is innocent and the money was kept in the briefcase by the P.W.1 himself, appellant’s hands would not have showed a positive result before the money was taken out from the briefcase. This is also a minus point for the appellant and shows that he himself took the bribe money and kept it in the briefcase. 19. The learned counsel for the appellant placed heavy reliance upon evidence of D.Ws.4 and 5 to probablise the defence of the appellant. D.W.4 is one V.Satyanarayana who is said to be the proprietor of Rajahmundry Textiles at Gajuwaka and D.W.5 is another by name R.G.Dhanooka who is said to be the proprietor of Sri Krishna Silks at Gajuwaka. It is the defence version that these two traders also went to the room of the appellant on the date of trap at about 1.00 PM to pay the ﬁne amounts or composition fee amounts for keeping their shops open on 11.12.1994 which was a public holiday. Both of them were examined to show that P.W.1 was also with them when he paid the ﬁne amount of Rs.100/- to the appellant for keeping his shop open on 11.12.1994. 20. D.W.1 in his evidence stated that himself, P.W.1, P.W.2 and Dhanooka entered into the rest room of the appellant and that the appellant ﬁrst prepared the receipt of D.W.5 Dhanooka and thereafter the receipt of P.W.1 and P.W.1 placed a hundred rupee note in the cash bag of the appellant. D.W.5 Dhanooka stated that P.W.1 placed one hundred rupee note on the table of the appellant. Thus both D.Ws.4 and 5 gave an inconsistent account about the method and manner of payment by P.W.1. This discrepancy itself is enough to hold that they gave evidence only to accommodate the appellant. On the other hand the appellant’s version is that P.W.1 himself kept Rs.300/- in his briefcase by double folding two notes of hundred rupee denomination in one note and his version is inconsistent with the versions of both D.Ws.4 and 5. 21. Then coming to the receipts issued to D.Ws.4 and 5, Ex.D.23 is the Xerox copy of the receipt and Ex.D.22 is the inspection report pertaining to D.W.4 while Ex.D.25 is the receipt and Ex.D.24 is the inspection report pertaining to D.W.5. Ex.D.22 and D.24 are both dated 11.12.1994 and they are also similar to Ex.D.7 document issued to P.W.1 regarding the intimation about the violation of keeping the shop open on 11.12.1994 which is a public holiday. In other words both D.22 and D.24 are only paper slips. Exs.D.23 and D.25 are again inspection reports dated 24.12.1994 and all the documents contain the writings of the appellant showing that they paid the amounts on that day. The appellant failed to ﬁle the carbon copies or the oﬃce copies of the printed receipts for collecting the ﬁne amounts from D.W.4 and D.W.5 also. In fact this was the reason for rejecting the case of the appellant that he collected Rs.100/- towards composite fee from P.W.1 and the same reasons holds good for rejecting Exs.D.22 to D.25 also. The only inference that can be drawn is that the appellant created all the above documents containing his writings showing collection of amounts on 24.12.1994 to wriggle out of his predicament. In view of this it follows that the evidence of D.Ws.4 and 5 and their documents cannot come to the rescue of the appellant. 22. The learned counsel for the appellant then relied upon the admission of P.W.1 in his cross examination that he paid an amount of Rs.100/- towards ﬁne and he says that P.W.1 must be held to have paid this amount only on 24.12.1994 whereas P.W.1 denied the same. Not only this, P.W.1 has also in his cross examination stated that he took some records pertaining to his shop with him when he went to the appellant and that when the appellant demanded the amount of Rs.300/- he pleaded with him to take only Rs.200/- but the appellant did not agree and therefore he gave the amount of Rs.300/-. It is true that P.W.1 did not produce the receipt showing when he paid Rs.100/- ﬁne and of-course this is a lapse in his evidence. So far as records are concerned P.W.4 N.Saibaba the DSP stated that before going to the appellant after the pre-trap proceedings P.W.1 told him that he was carrying some records pertaining to his shop and hence this cannot be a serious defect in the prosecution version. Similarly the version of P.W.1 that he ﬁrst requested the appellant to take only Rs.200/- but paid Rs.300/- i.e. bribe money cannot also be a serious lapse so as to destroy the prosecution case as ultimately the appellant received Rs.300/-. 23. Regarding the admission of P.W.1 that he paid Rs.100/- as ﬁne and his failure to show when he paid it, it may be noted that the evidence of P.W.1 and P.W.2 whose presence is also spoken to by D.W.4 in the appellant’s room, and the evidence of DSP and the mediators would clearly show that the amount of Rs.300/- which was treated with phenolphthalein powder was recovered from the appellant’s briefcase and the hands of the appellant showed positive result for sodium carbonate test even before the amount was recovered from the briefcase and these aspects have already been mentioned supra. The defence of the appellant that P.W.1 himself kept the money in his briefcase has been found to be an unacceptable defence and the reasons are also mentioned supra and all these circumstances show that the appellant received the amount of Rs.300/- as bribe only on the date of trap. In such a situation the failure on the part of P.W.1 to show when he paid the ﬁne amount of Rs.100/- cannot eclipse the prosecution case and cannot by itself be a ground to disbelieve it. 24. The learned Senior Counsel then relied upon certain other circumstances to show that the appellant did not in fact demand any Mamul either on 23.12.1994 or on any date previously. It has already been seen supra that the appellant has collected contribution to the Labour Welfare Fund and the registration fee, renewal fee and penalty from P.W.1 on 23.12.1994 as found from Exs.P.16 and P.17 receipt books. Thus the appellant’s version that he did not meet P.W.1 on 23.12.1994 cannot be accepted and the version of P.W.1 that the appellant demanded the amount on that day can be accepted as the same stands supported by the recovery of Rs.300/- from the appellant’s briefcase by the ACB DSP. Another circumstance pointed out was that there is no evidence from the prosecution to show that the appellant was in the habit of demanding Mamuls from other traders and therefore this is a minus point for the prosecution. There is no force in this contention. It may be noted that the court cannot make an enquiry on the above aspect when the charges are that the accused has demanded Mamul and received it from the de facto complainant and if there is evidence to sustain the said charges they have to be sustained. It can also be said that the appellant has demanded for the Mamul only from the P.W.1 in the ﬁrst instance and has been trapped by the authorities. Criticism was also levelled against the evidence of P.W.2 and the veracity of his evidence regarding his businesses but this cannot be a ground to reject his evidence as his presence in the room