* HON’BLE SRI JUSTICE B.N.RAO NALLA + Criminal Appeal No.2336 of 2004 % Date 08.09.2011 B e t w e e n: # I. Nageswara Rao s/o. Jagannadharao Appellant/Accused A n d $ State, rep. by Inspector of Police, ACB, Visakhapatnam. Respondent/Complainant ! Counsel for the Appellant: Sri C.Praveen Kumar ^ Counsel for the Respondent. : Sri.Ghani A. Musa,Spl. P.P. & S.C. for ACB < GIST : > HEAD NOTE : ? Cases referred : [1] (2002) 10 SCC 371 2 (2009) 3 SCC 779 3(1979) 4 SCC 725 4 2001(1) SCC 691 5AIR 1979 SC 400 6 (2004) 9 SCC 333 HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.2336 OF 2004 JUDGMENT: The appellant-accused, aggrieved by the judgment dated 19-10-2004 in C.C. No.49 of 2000 on the file of the Special Judge for ACB Cases –cum- III Additional Distri Sessions Judge, Visakhapatnam, preferred this Criminal Appeal. 2. By the said impugned judgment, the appellant-accused was found guilty and accordingly convicted and sentenced for the offences under Sections 7 and 13(2) read with 13(1)( the Prevention of Corruption Act,1988 (for short ‘the Act’). He was sentenced to undergo sim imprisonment for one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to und simple imprisonment for one month for the offence under Section 7 of the Act, and he was fu sentenced to undergo simple imprisonment of one year and to pay a fine of Rs.1,000/-, in defau payment of fine, to undergo simple imprisonment for one month for the offence under Section 13(2) with 13(1) (d) of the Act. Both the sentences of imprisonment were directed to run concurrently. 3. The case of the prosecution, in brief, is as under: 4. PW.1, a private accountant and resident of Visakhapatnam, with an intention to start c and thread business in his house at M.V.P. Colony, approached the appellant-accused on 22-12-1 in his office and apprised him of his intention to start such a business, whereupon the appe instructed him to obtain application form, declaration form, national savings certificate for Rs.1,0 non-judicial stamp worth Rs.100/- and pledge form etc. and instructed him to come on the follow day. Accordingly on 23-12-1994, PW.1 approached the appellant-accused in his office and got documents verified to his satisfaction. However, the appellant-accused had demanded Rs.1,000 complete the work. That PW.1 though expressed his inability to pay the said amount, the appel accused did not heed to it, whereupon PW.1 reluctantly agreed to pay the said bribe amount. appellant-accused had instructed him to come on Monday along with necessary documents and demanded bribe amount. 5. PW.1 with an intention of avoiding such payment of bribe, approached the ACB official 25-12-1994 and submitted Ex.P-1 written report before PW.4, the Dy.S.P., who after making prelimi enquiry as to the antecedents of PW.1 as well as the appellant-accused, registered a case in C No.20/1994 (Ex.P-9) under Sections 7, 11 and 13(2) read with 13(1)(d) of the Act. 6. That on 26-12-1994, PW.4 secured the presence of PW.2 and another from the office o Executive Engineer to act as mediators and that PW.1 also appeared before him. Then pre proceedings were prepared and explained to them. The tainted amount was kept in the shirt pock PW.1. PWs.1 and 2 entered the office of the appellant-accused and that the appellant-accu demanded the bribe amount from PW.1 and accepted from PW.1, and after receiving the same with right hand, kept the same in his office table drawer. That when the prearranged signal was given, P and other members of the trap entered the office, that the fingers of both the hands of the appel accused were subjected to Sodium Carbonate solution test, that his right hand fingers proved pos that though the appellant-accused denied having received the bribe amount from PW.1, he removed the amount from his left side of the pocket, that the white paper on which the tainted curre notes were kept in the drawer of the table and the left pant pocket of the appellant were also subje to Sodium Carbonate Solution test and they proved positive and that the said pre and post proceedings were conducted under Exs.P-4 and P-7 respectively. 7. Subsequently, the Inspector of Police, A.C.B., took over the investigation and obtaining sanction orders from the Government under Ex.P-8, laid charge sheet. 8. That the plea of the accused is one of the denial. That he offered an explanation stating during 1993-94 the then District Collector of Visakhapatnam had issued guidelines fixing targe collecting security deposits in the form of national savings certificate bonds and in view of the sam used to insist the traders to deposit extra security and as such he insisted PW.1 to get NSC bond Rs.1,000/- as an additional security and that taking advantage of the same, PW.1 preferred f complaint-Ex.P1 before PW.4. 9. In support of its case, the prosecution has got examined PWs.1 to 4 and got marked Ex 1 to P-13 on its behalf, besides marking M.Os 1 to 9, whereas DWS.1 and 2 were examined and Ex 1 and D-2 were marked on behalf of the defence. 10. The trail Court taking the evidence of the prosecution witnesses and other materia record in to consideration, found the appellant-accused guilty for the offences charged with accordingly convicted and sentenced him therefor as has already been stated in paragraph No.2 su 11. It is contended on behalf of the appellant-accused that the appellant-accused has adm having received Rs.1,000/- from PW.1 , however, he offered an explanation as to why he did so, the same has to be considered whether the appellant-accused had received the amount tow national savings certificate and/or towards illegal gratification. It is further contended that the appel accused has in clear terms offered his explanation that the said amount received by him was towards any illegal gratification, but towards purchasing national savings certificate. That in suppo the same, he has examined DWs 1 and 2. It is in the evidence of DW.1, who is agent for nati savings certificates that he was called by appellant-accused to be present in the office on 26.12.199 issue a national savings certificate for Rs.1,000/- in favour of PW.1. DW.2 is a retired ACTO wh conversant with the practice in the office of the appellant-accused, stated that during the accoun year 1993-94 though the licence fee was Rs.1,000/- the officers were demanding extra Rs.2,000/ purchasing national saving certificate. Therefore, it is contended that their evidence supports explanation offered by the appellant-accused that the alleged bribe amount was not received by towards any illegal gratification, but for purchasing the national savings certificate. That the practice being in vogue and also there being drive for collection for national savings certificate found to be in the evidence of PW.3 who is DCTO. So far as the accompanying witness PW concerned, it is contended that he has not stated clearly that the tainted amount was received by appellant-accused towards bribe. He only stated that he thought that the said amount was paid bribe. That when the appellant-accused asked the money for purchasing national savings certific PW.2 appears to have misunderstood the same to be towards bribe. PW.2 has changed his versio his cross examination though he has stated in his examination chief that the appellant-accused asked PW.1 as to bringing of demanded bribe amount. He has stated in his cross examination post trap panchanama proceedings- ExP.7 (mediator’s report) shows by indication the appel accused had demanded bribe amount from PW.1. It is also contended that when the statement of P was recorded by Judicial Magistrate under Section 164 Cr.P.C., PW.1 has stated that after the post proceedings, PW.4 called him and asked him whether the amount was paid to the appellant-accu as a deposit as informed by the appellant- accused, for which, he replied in the negative. contended in this context that this part of 164 Cr.P.C. statement of PW.1 also supports the explana offered by the appellant-accused as to why he had accepted the alleged bribe amount from P though his reply is in negative, and that it goes to show that the appellant-accused did offer s explanation before PW.4 after conclusion of post trap proceedings under Ex.P.7. Referring to Ex.D xerox copy of circular in RC. No.A1/259/94 dated 18.7.1994 which is a circular issued by the S Government, Commercial Taxes Department insisting on securing national savings certific wherever security deposit is payable by the dealers, it is contended that in view of such a circular b in force, the appellant-accused has insisted PW.1 to pay Rs.1,000/- towards additional security fo said purpose and he had called DW.1, an agent to issue such certificate after obtaining Rs.1,0 towards the same. It is also contended that as per the evidence of PW,1, the moment he paid amount to the appellant-accused, he put the same in his table drawer and soon thereafter, the trap p which was at the distance of 10 feet entered the office room and recovered the tainted bribe am from the pant pocket of the appellant-accused. In this context, it is contended that it cannot be said the appellant-accused had time and opportunity to take out the amount from the drawer and put in pant pocket. Therefore, it is contended that it becomes probable that PW.1 had paid an amou Rs.1,000/- to the appellant-accused towards purchasing national saving certificate, much before trap and the same fit into the explanation offered by him. 12. It is shown from the evidence of PW.3 that during the accounting year 1993-94, nati savings certificate agents used to move around commercial tax offices for the purpose of their busin and that there was a drive for collection of deposits by way of national savings certificates for purpose of registration during that period. It is also pointed out from his evidence that the appe accused being ACTO had the discretion to fix the security amount having regard to the nature o business as per the circulars. That he is also shown to have stated that there was possibility of s agents approaching the appellant-accused. Therefore, it is contended that since there was a driv collection of deposits by way of national savings certificates in view of Ex.D2-circular, the appel accused has asked PW.1 to pay Rs.1,000/- towards the same and the same cannot be said to h been demanded and accepted towards bribe. So far as the drive for collecting national sav certificates, during that period and the agents visiting Government offices including the offices o commercial taxes to issue such certificates, it is contended that even as per the evidence of DW cannot be said that the amount of Rs.1,000/- paid to the appellant-accused by PW.1 was towards bribe. DW.1 has stated in clear terms that during the relevant period, the District Collector instru the agents to go Commercial Tax offices and other Government offices to collect and procure nati savings certificates, since the Government had fixed the targets. He also spoken to the effect tha several occasions he had collected money from ACTOs including the appellant-accused and iss national savings certificates in the name of dealers. DW.2 who is a retired ACTO also speaks to su practice being in vogue at that time. That DW.2 goes a step further and stated in his evidence during that period, the District Collector also fixed targets for ACTOS to obtain national sav certificates and that in order to meet the targets, they used to demand from new applicants double deposit amount. Therefore, it is contended that the appellant-accused had received Rs.1,000/- tow national savings certificate and not towards bribe. It is further contended that the evidence of PW.1 DWs 1 and 2 being what it is, what PW.4-I.O. stated to the contrary is of no consequence to the cas the prosecution. It is contended that the appellant- accused is not required to prove his defenc offering the explanation as the prosecution is required to do. He is required to show the prepondera of the probability, whereas the prosecution has to prove its case beyond all reasonable doubt. Last is contended that in view of the explanation offered by the appellant-accused and the same finds p in 164 Cr.P.C. statement of PW.1 and in view of the evidence of DWs 1 and 2 supported by Ex Government circular as well as the evidence of PW.3-DCTO who spoke as to Ex.D2 being in force, also PW.2 accompanying witness having not supported the evidence of PW.1 as to the demand acceptance of the illegal gratification by the appellant-accused, it cannot be said that the prosecu has made out a prima facie case . Therefore, the trial court appears to have erred in appreciating evidence of prosecution witnesses and came to the wrong conclusion finding that the appel accused guilty for the offences under Sections 7 and 13 (1)(d) read with Section 13(2) of the Act an such, the impugned order is liable to be set-aside. 13. For the sake of brevity, the case of the appellant-accused may be reiterated here as u at the cost of repetition. 14. It is contended that the appellant-accused had offered his explanation at the ear possible opportunity as to how and why he had accepted Rs.1,000/- from PW.1. His explanation to the effect that he had accepted that amount from PW.1 towards purchasing national sav certificate. That it is in the evidence of PW.3, who was working as D.C.T.O., Kothavalasa, at that t that during 1993 and 1994, national savings certificates’ agents used to move around their office fo purpose of their business, that there was a drive for collection of deposits by way of national sav certificates for the purpose of registration. In view of the said evidence, it is contended that there w practice of said agents moving around the Commercial Tax Office and the same goes to suggest the appellant-accused had accepted Rs.1,000/- from PW.1 towards purchase of national sav certificate. 15. The evidence of DW.2, who worked as A.C.T.O. and retired as such, has also suppo the evidence of PW.3, that since targets were fixed for collecting the NSC documents, the Dis Collectors or the Mandal Revenue Officers used to send the agents to their offices to facilitate the meet the targets. Therefore, it is contended that the explanation offered by the appellant-accuse that effect finds place in Ex.D-1, statement under Section 164 Cr.P.C. and in the evidence of prosecution witnesses by way of suggestions. Moreover, Ex.D-2 is the certificate issued by the De Commissioner to that effect. Therefore, it is contended that the appellant-accused had offered explanation at the earliest opportunity. 16. Relying on the decision of the Apex Court in PUNJAB RAO v. STATE MAHARASHTRA[1], it is contended that even if the appellant is alleged to have not offered statement at the earliest opportunity, it should be given at the stage of examination of the accu under Section 313 Cr.P.C. Therefore, it is contended that in any case, innocence of the appel accused finds place in the evidence of the witnesses and other exhibits marked on behalf of prosecution as has already been stated hereinabove. Therefore, it cannot be said that the appel accused had not offered his explanation at the earliest opportunity. 17. So far as recovery of the tainted amount from the appellant-accused is concerned, contended that mere recovery is not sufficient to convict the accused. in this regard, he relied o decision reported in C.M. GIRISH BABU v. C.B.I., COCHIN, HIGH COURT OF KERALA whereunder referring to a decision in SURAJ MAL v. STATE (DELHI ADMINISTRATION)[3], it held to the effect that mere recovery of tainted amount divorced from the circumstances under which paid is not sufficient to convict the accused without the substantive evidence. The mere recover itself cannot prove the charge against the accused, in the absence of any evidence to prove demand of bribe or to show that accused voluntarily accepting the money knowing it to be bribe also relied on the decision in M. NARSINGA RAO v. STATE OF A.P.[4], wherein the Apex Court w dealing with the contention, observed that it is not enough that some currency notes were handed to the public servant to make it acceptance of gratification and the prosecution has a further du prove that what is paid amounted to gratification. 18. In view of the above decisions, it is contended that it is the bounden duty of prosecution to prove its case beyond all reasonable doubt, but in this case it has failed to prove same as none of the witnesses corroborated the evidence of other witnesses so far as the alle demand and acceptance of Rs.1,000/- from PW.1 as illegal gratification other than legal remunerat Moreover, it is contended that it is not appropriate or advisable to convict the appellant-accused ba on the solitary evidence of PW.1 alone. The evidence of PW.1 is not reliable since he is not a reli witness. PW.1, though claims to be an accountant for more than 20 years, has stated that he had n visited the office of the Commercial Taxes, whereas it is in the evidence of DW.2, who retired A.C.T.O. from the same Division has testified that he knew PW.1, who used to come to their office to returns of the traders. Therefore it is contended that the evidence of PW.1 is unworthy of considera to convict the appellant-accused, and therefore, the trial Court has committed an error in finding appellant-accused guilty of the alleged offence and convicting him as stated hereinabove. 19. It is the case of the prosecution that PW.1 being resident of M.V.P. Colony, Visakhapat and also he being a private accountant, with the intention of starting a cloth and tread busin approached the appellant-accused to obtain licence thereof and in that connection the appel accused demanded an amount of Rs.1,000/- towards illegal gratification. That though he was willing to pay the illegal gratification, PW.1 agreed to pay the same to the appellant-accused. thereafter, with an intention to avoid the same, he approached PW.4-Dy.S.P on 25.12.1994 at his o and preferred Ex.P.1-report and based on that, PW.4 issued Ex.P.9-FIR after causing prelimi enquiry as to the antecedents of both parties. That on 26.12.1994, the appellant-accused successfully trapped and on being questioned by PW.4, the appellant-accused has admitted ha produced the tainted amount from his pant pocket stating that he received the same from PW.1 tow bribe. Therefore, it is contended that the plea developed by the appellant-accused subsequently tha had accepted Rs.1,000/- from PW.1 towards purchasing national savings certificate is an after tho and if the same was the fact, he would have stated the same before PW.4 in the presence of media PW2 and another at the earliest opportunity. That the evidence of PWs 1, 2 and 4 proved the cas the prosecution that the appellant- accused had demanded and accepted illegal gratificatio Rs.1,000/- from PW.1. That the appellant-accused had examined DWs 1 and 2 to prove his innoce and got marked Exs.D1 and D2 in that regard. It is in the evidence of DW.1 that during the year 1 the agents were instructed by the District Collector to visit commercial tax offices to procure nati saving certificates as the Government has fixed the targets on the Government officers in that re and that being so, he visited the office of the appellant-accused on 26.12.1994 for the purpos issuing national savings certificate. However, referring to his cross examination, it is pointed out by prosecution that DW.1 admitted that the District Collector did not issue instructions directly to agents. Therefore, it is contended that DW.1 visiting the appellant-accused in his office for that purp does not arise. It is also contended that the witness made contradictory statements in his evide since he says in his chief examination that District Collector had issued instructions to the agen visit the Government offices to collect and procure national savings certificates, and in his c examination he denies the same. It is contended that DW.1 is pressed into service only to save skin of the appellant-accused. Referring to Ex.D2, it is contended that it only requires the Governm officers to accept national savings certificates and not cash and that leaving the said circular to winds, the appellant-accused had demanded and accepted an amount of Rs.1,000/- from PW. illegal gratification. That it cannot be said that the said amount was received by him from PW.1 tow purchasing national savings certificate. Referring to the evidence of DW.2, who is a retired ACTO in order to meet the target, they used to demand double the deposit and that to issue a licence for c and thread business, they used to demand Rs.2,000/- though the licence fee thereof was Rs.1,0 only, it is contended that demanding the cash amount from the applicants seeking business lice was not provided in the circular and moreover, demanding double the amount of the deposit is also permissible and moreover, the appellant-accused accepting Rs.1,000/- from PW.1 is not warra since he was only required to demand the national savings certificate for that amount from PW.1 o That DW.2 has stated the same thing in his cross examination that there was no written instruction collect double the deposit security amount and there were no written instructions directing the agen approach ACTOS to collect cash from the parties for purchasing national savings certifica Therefore, it is contended that the plea and/or the defence of accepting Rs.1,000/- from PW.1 purchasing national savings certificate is only created by the appellant-accused to save himself the punishment. It is contended that the evidence of PWs 1, 2 and 4 is unshakable in all mat particulars and the same proved the case of the prosecution. Further, the trial court having appreci the same has come to a right conclusion in finding that the appellant-accused guilty for the offen charged with. The evidence of PW.3, who worked as DCTO at the relevant time and the appel accused is stated to have worked under him as ACTO, is that ACTO was not authorised to receive c from the applicants for the purpose of security deposit. He has also stated in his evidence that commercial tax officers would not accept cash from the applicants for the purpose of purcha national savings certificates. It is contended that PW.1 has stated in his statement recorded by Jud Magistrate under Section 164 Cr.P.C. that he paid the amount to the appellant-accused as bribe on demanded by him, but not as deposit. It is also contended that PW.1 cannot be said to have had grudge against the appellant-accused as he was stranger to him. That he had visited the appel accused in his office seeking a business licence for the first time and he had to see him on other d also for the said purpose. That PW.1 has preferred the complaint before ACB authorities since appellant-accused had demanded an illegal gratification other than the legal remuneration for iss business licence to him to deal in cloth and thread. Therefore, the question of PW.1 developing gru against the appellant-accused does not arise at all. It is further contended that having found infirmities or variations in the evidence of PWs 1 to 4 in proving the case of the prosecution, the court has admitted, acted upon the same and thereby finding the appellant-accused guilty for offences charged with. As such, it is contended that it cannot be said that the impugned judgment o trial court suffers from any error or irregularity. 20. It is also contended that when PW.4 entered the chamber of the appellant-accused an seeing PW.4, the appellant-accused stood up in front of him and started shivering and later he started crying stating that he did not commit anything wrong. That on being questioned by PW.4, a whether he had just then received any bribe from any one, whereupon the appellant-accused at the instance denied to have received any money, but later he stood up from the chair and took out bunc currency notes from his