THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.1056 of 2004 JUDGMENT: Appellant is the Union of India, rep. by Special Public Prosecutor of Central Bureau of Investigation (CBI). It filed this appeal questioning the judgment dated 6.1.2004 of acquittal recorded by the Court of Special Judge, C.B.I. Cases, Hyderabad (trial Court) in C.C.No.30 of 2001 on its file. The case is a CBI trap case relating to alleged bribery. 2. The respondent herein afterwards referred to for convenience as accused was admittedly a public servant at the relevant time and was working as Superintendent of Post Offices, Guntakal in Ananthapur District with residence at Ananthapur. P.W.1 G.Parthanna (de facto complainant) was selected as Branch Post Master of Gooty/ Ananthapur and he was informed of the same by a letter dated 19.5.2000 of Superintendent of Post Offices. Subsequently P.W1 was also selected for the post of Branch Post Master of Vankaraju Kalva and he was awaiting posting orders. The prosecution version is that the accused was desirous of getting a posting as the Branch Post Master at Gooty/ Ananthapur. 3. The further version of the prosecution is that sometime before 29.6.2000 one person by name Giriappa disclosed by P.W.1 went to the house of the accused and informed his mother or family members that P.W.1 should meet the accused on 29.6.2000. Accordingly, it is alleged, P.W.1 met the accused at his house at about 2.30 p.m. on 29.6.2000 and on that day, the accused demanded P.W.1 to pay his two years salary as bribe to him for posting him at Gooty/ Ananthapur and when P.W.1 expressed his inability to pay the same the accused demanded a sum of Rs.12,000/- and that further when P.W.1 told him that he cannot pay even that amount, the accused demanded him to pay that amount in instalments and instructed him to pay a sum of Rs.5,000/- by way of first instalment on 2.7.2000 and the balance thereafter. 4. It is then stated by the prosecution that P.W.1 first reported the matter to CBI on 30.6.2000 about the demand of the accused and again on 2.7.2000 P.W.1 met P.W.5 B.Shankar Rao, the then Inspector of Police, CBI, who was camping at Guntakal and gave Ex.P.1 complaint to him against the accused. The other details are not necessary. Thereafter P.W.5 the Inspector after informing Superintendent of Police, CBI at Hyderabad and obtaining orders arranged the trap and according to the prosecution it was successful and the bribe money i.e. Rs.5,000/- marked as M.O.1 consisting of 9 notes of Rs.500/- denomination and 5 notes of Rs.100/- denomination was recovered from the residence of the accused. P.W.2 P.Ramesh, the then Manager of the Andhra Bank at Guntakal branch was the accompanying witness and he was also one of the two mediators. I shall refer to the other witnesses in the course of this judgment. 5. The accused was charged for two offences i.e. one under Section 7 and the other, which is connected to the first one, under Section 13(i)(d) of the Prevention of Corruption Act, 1988 (for short Act). His plea was one of denial throughout. The details of the evidence let in by the prosecution and the accused are given in the Appendix of evidence at the foot of the trial court’s judgment. The trial court after considering the evidence has by the impugned judgment concluded that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt and acquitted him. 6. Sri P.Kesava Rao, the learned Standing Counsel-cum- Special Public Prosecutor for the CBI argued that the evidence let in by the prosecution clearly proves that sodium carbonate – phenolphthalein powder test proved positive on both the hands of the accused and the bribe money i.e. M.O.1 was also recovered from an almyrah or shelf in the second bed room in the residence of the accused and these aspects coupled with the evidence of P.Ws.1 to 6 relating to demand for bribe are sufficient to find the accused guilty of the charges. He further pointed out that the trial court totally ignored the evidence and recorded acquittal on surmises and therefore the judgment under appeal should be set aside and the accused should be convicted and sentenced of the charges brought against him. 7. The defence of the accused was that P.W.1 never met him on 29.06.2000 or at any time and he never demanded any bribe from him and his version is that P.W.1 was already selected for the Branch Post Master’s post at Gooty/ Ananthapur and therefore there was no need for P.W.1 to pay bribe to him. His further version is that P.W.1 met him only on 02.07.2000 (date of trap according to prosecution). It must be mentioned here that the evidence on record would disclose that the sodium carbonate– phenolphthalein powder test proved positive for both hands of the accused and M.O.1 bribe money of Rs.5,000/- was recovered from an almyrah or shelf in the second bed room in the house of the accused. Explaining this test, the accused pleaded that when P.W.1 entered his house he was talking to somebody on telephone and taking advantage of the same, P.W.1 kept the money on a cot and after telephone conversation was over, he knowing the purpose of P.W.1’s visit took the said money and returned it to him telling him he was not corrupt and that is how his hands proved positive for the above test. 8. Regarding the recovery of the money from the almyrah or shelf in his second bed room, the accused pleaded that it was recovered after a search of his house for four hours and that the ACB police could themselves have planted it there to strengthen their case and that he is innocent. The learned senior counsel appearing for the accused also relied upon certain circumstances in support of the above defence and pointed out that the complaint was a false one. He also pointed out that the prosecution version shows that P.W.1 was also given a small tape recorder with instructions to switch it on to record the conversation between the accused and P.W.1 on the date of trap and the prosecution did not produce the said tape recorder and this would itself show that prosecution version is unreliable and the defence version should be accepted and there is no ground to interfere with the trial court judgment. An argument was also raised on behalf of the accused that the charge framed itself is defective inasmuch as it does not speak of the alleged first demand on 29.06.2000. 9. Both versions regarding the charges brought against the accused have been set out. The trial court found in favour of the accused. It has now to be once again seen whether the evidence on record establishes the charges against the accused beyond reasonable doubt and whether the judgment of the trial court calls for interference. This is the point in the appeal. 10. I shall now take up the objection relating to the omission to mention about the date 29.6.2000 in both the charges and its effect. A perusal of the charges would no doubt show that the date of the alleged first demand 29.06.2000 for the bribe is not mentioned in both the charges. It should also be noted that it is not mentioned even in the charge sheet. Perhaps the trial court went by the charge sheet at the time of framing charges and that is how the above omission occurred. This date 29.06.2000 on which the alleged first demand for bribe is said to have been made is however mentioned in Ex.P.1 complaint. A copy of this complaint or report has been admittedly given to the accused along with other documents before the trial commenced. Further the evidence of P.W.1 in chief also contains a mention about the date 29.6.2000 and P.W.1 spoke about the prosecution version based on the said date also. The accused was given opportunity to fully cross-examine P.W.1 and the counsel for accused in the trial court also made several suggestions regarding the falsity of this date. It can thus be said that though there is omission in the charge sheet and charges about the said date, the accused had a full understanding of the prosecution case from the evidence of P.W.1 and Ex.P.1 even with regard to the date 29.06.2000 and he cross-examined all the witnesses of the prosecution with that understanding. Hence the above omission cannot be said to have resulted in any prejudice and this objection is therefore overruled. 11. That takes me to the merits in the appeal. I have already set out the prosecution version and also the defence version. So far as the recovery of M.O.1 bribe amount from the almyrah or shelf in the second bed room of the residence of the accused and the prosecution plea that the sodium carbonate – phenolphthalein powder test proved positive, it can be straightaway said that prosecution’s version to the said extent stands proved by the evidence of P.W.2 the accompanying witness and mediator and also P.W.5 the trap laying officer. Even in his defence version the accused did not dispute the above aspect but he came up with his explanation. It has now to be seen whether on evidence the prosecution version is more probable or the defence version is more probable. 12. The first question is whether the prosecution version that P.W.1 met the accused first on 26.9.2000 and on that day the accused demanded the bribe for posting him at Gooty/ Ananthapur can be accepted as reliable or truthful. Incidentally, another question which will arise under the above aspect is whether it was really necessary for P.W.1 to approach the accused for a posting at the above place and offer bribe. On the first question, the evidence of P.W.3 S.Vengappa who was then working as Superintendent of Postal Stores Depot, Guntakal and who was the predecessor of the accused in the post of Superintendent of Post Office, Guntakal is very much relevant. P.W.1 says that he has acquaintance with the accused. 13. In his cross-examination, P.W.3 admitted or stated that on 29.6.2000 at about 2.00 p.m. himself and the accused went to Guntakal Head Post Office for placing the Post Master, Guntakal under suspension on the allegations of some irregularities committed by him as Manager, Postal Stores Depot, Guntakal and they were at Guntakal Head Post Office upto 6.00 p.m. and after return on the same day in the night the accused left for Hyderabad. It should be noted that P.W.3 is an official and prosecution witness and his version shows that the accused was not available at his house on 29.6.2000 at 2.30 p.m. and therefore P.W.1 could not have met him. It is seen that P.W.3 was not cross-examined by the prosecution on the above aspect declaring him hostile nor was he re-examined to show that on 29.6.2000 the accused was at his residence and did not accompany him or did not go anywhere. 14. Thus the above version of P.W.3 cuts across the version of P.W.3 that he met the accused on that day at 2.30 p.m. and in that meeting the accused made demand for bribe. There may be some discrepancy in the exact timings, but what should be noted is that the version of P.W.3 would show that the accused was not available in his house on the afternoon of 29.6.2000 and there is no reason to reject this version of the accused. Nothing is brought to my notice by Sri P.Kesava Rao to show that P.W.5 the CBI official before proceeding with the trap verified whether P.W.1’s version that he met the accused on 29.6.2000 was correct or not and found it to be correct and therefore P.W.3’s version cannot be accepted. Thus the version of P.W.3 makes the version of P.W.1 that he met the accused on 29.6.2000 around 2.30 p.m. and the accused made the first demand on that day becomes highly unreliable or doubtful. There is no other evidence to show that the accused has made demand for bribe on any date other than 29.6.2000 prior to the date of trap and this is the first minus point for the prosecution. The incident that has happened on 2.7.2000 will be taken up a little later. 15. Coming to the question whether there was any necessity for the P.W.1 to approach the accused to offer a bribe for his posting at Gooty/ Ananthapur the position emerging from the evidence is this. By Ex.P.4 letter dated 19.5.2000 the Superintendent of Post Offices, Gunthakal already informed P.W.1 that he was selected for the post of Branch Post Master of Gooty, Ananthapur District and he should secure a suitable accommodation to lookout the branch office at Gooty, Ananthapur and intimate about the same to the Superintendent. It is the version of P.W.1 himself that pursuant to the above letter he selected the accommodation of one Eshwaramma and intimated the same to the Superintendent on 22.5.2000. 16. It is of-course true that P.W.1 was also selected for the post of Post Master of Varadaraju Kalva and this is evident from Ex.P.6/D.4 dated 12.6.2000. It should however be noted that in Ex.P.6 the Superintendent has asked the A.S.P.O.S. Guntakal Sub-Division, Guntakal to obtain the statement of P.W.1 regarding his option as to whether he would go to Gooty, Ananthapur or Varadaraju Kalva. Thus what should be noted is that when the Superintendent himself called for the option of P.W.1 though Ex.P.6 dated 12.06.2000, it cannot be concluded that he would have demanded money for posting P.W.1 to the place of his choice. This aspect also gains strength from the fact that P.W.1’s evidence regarding the first demand on 29.6.2000 has become highly doubtful in view of the evidence of P.W.3. Further it is the version of P.W.1 that one Giriappa was the person who went to his house and informed the inmates of his house that P.W.1 should meet the accused on 29.6.2000. The prosecution should have examined the Giriappa but it did not do so. This aspect becomes the second minus point for the prosecution. 17. I will now take up as to what transpired on the date of trap i.e. 2.7.2000. Even P.W.1 says that before he was sent to the house of the accused for giving the bribe, the ACB Police gave him a small tape recorder which he kept in his pant pocket for recording the conversation that may take place between him and the accused in the house of the latter. P.W.1 added that when he went into the house of the accused, he switched on the tape recorder also. The prosecution however could not produce the said tape recorder which may have recorded the conversation. It also failed to give any explanation for its non-production and this also becomes a minus point for the prosecution and the defence counsel’s contention that its production may prejudice the prosecution case or support the defence version cannot be dismissed as of no consequence. P.W.2 admittedly did not enter the house of the accused with P.W.1 and thus it can be said that there is no evidence to corroborate the version of P.W.1 as to what transpired there and such corroboration becomes necessary when P.W.1’s version regarding the demand on 29.6.2000 is found to be doubtful. 18. Then coming to the version of P.W.1 as to what happened on 2.7.2000, he says that when he went to the house of the accused to give the bribe money one Sri Ram Mohan Rao, the then Sub- Manager of Andhra Bank, Guntakal who is cited as one of the two mediators accompanied him. However P.W.2 P.Ramesh, the then Manager of Andhra Bank, Guntakal Branch says he accompanied P.W.1. Here itself the evidence of P.W.1 is discrepant from the evidence of P.W.2 and also P.W.5 the CBI official as to who accompanied P.W.1. Normally in a trap case the de facto complainant is expected to give the name of the accompanying witness correctly and P.W.1 did not explain why the above discrepancy has occurred. Be that as it may, I will now go to the further version of the prosecution as to what transpired at the house of the accused. 19. The evidence of P.W.1 on the above aspect is that by about 9.15 a.m. or 10.00 a.m. he went to the house of the accused and when he entered it he found that the accused was talking with somebody on telephone and he (P.W.1) also switched on the tape recorder. He further stated that on seeing Ram Mohan Rao who was standing a little away from the house, the accused enquired with him about the said Ram Mohan Rao but he feigned ignorance. The next version of P.W.1 is that after the phone conversation, the accused asked him about the money and he replied in the affirmative and removed the money from his packet and handed over the same to the accused with his right hand and the accused took it with his right hand and kept it on the cot. His further version is that the accused also asked him about the balance amount of Rs.7,000/- and he replied that he would pay after receiving the appointment order. The evidence of P.W.1, P.W.2 and P.W.5 gives on account of what happened after P.W.1 went out and gave the pre-arranged signal. 20. It should be noted that the evidence of P.W.2 and 5 would show that after entering the house of the accused and after conducting the test of sodium carbonate– phenolphthalein powder test and the hands of the accused which proved positive, they carried out a search of the house of the accused for nearly about four hours and thereafter found the bribe amount of Rs.5,000/- in an open almyrah or shelf in the second bed room of his house. What should be noted is that they did not find the bribe money on the cot nor did they recover it from the person of the accused. Sri P.Kesava Rao argued that when P.W.1 went out after handing over the amount, there could be some time gap and in that time gap P.W.1 could have gone into the second bed room and concealed the bribe amount in the place where it was found. The question is whether this contention can be accepted as probable. On this aspect it would be useful to note that P.W.2 P.Ramesh who acted as the mediator and accompanying witness, in his evidence stated that he was very near that house and when P.W.1 came out of the house of the accused (i.e. after entering it for giving the bribe money) to give signal, the accused also came out of the house within seconds after P.W.1 came out. The bribe money was found, according to Ex.P.3 second mediator’s report and the evidence of P.W.5 the CBI official at a place described in Ex.P.3 mediators report and it is as follows. “Further the trap team again took pains and started searching every nook and corner of the house i.e. first room, kitchen, dining hall, first bed room, second bed room, toilet second bathroom. During then said search Inspector Sri Satish Prabhu found the tainted currency notes which were kept underneath the paper (old calendar sheet) spread on top rack of the self. He also found two pearl set bottles containing surf and kunkudukai powder on the paper of the said soft. Immediately both the witness were informed to see and recover the tainted currency notes”. 21. The description of the above place from which the money was recovered is not clear as to whether the money was recovered from the second bed room or its toilet/ bathroom, but what should be noted is that money was recovered from the above place which is in the interior of the house. The house of the accused admittedly consists of four rooms and the evidence of P.W.5 shows that it was searched for four hours and the money was found at the end of the search. The aforementioned Sri Satish Prabhu, Inspector has not been examined to show where exactly he found the money. The above place from which the money was recovered would show that some time ranging from one minute to two or three minutes may have been required for the accused to conceal the amount. The version of P.W.2 the mediator/ accompanying witness is that the accused also came out of his house within seconds after P.W.1 came out of it and even the version of P.W.5 is when they went to the house of the accused he found the accused standing outside near his house and this also probablises P.W.2’s version that the accused also came out within seconds following P.W.1 in coming out of his house. It should be noted that usually the exact timings may not assume importance but the method and manner in which P.W.2 who spoke about precise time mentioning that the accused came out of his house in seconds after P.W.1 came out may show that the accused may not have the time to take the money and conceal it in the place where it was found. In such a situation the prosecution plea that the accused could have taken the money inside and concealed it also becomes reasonably doubtful. 22. Sri P.Kesava Rao relied upon a decision of this Court given in M.Gopinath V. State of A.P.[1] to support his contention that this is not a case for acquittal. In the aforesaid decision, the bribe amount was found from the pant packet of the accused and further even the papers relating to gratuity bills of the complainant therein for clearing which bribe was demanded were also found in his pant packet and hence conviction was held to be proper. That is not the case here and having regard to the circumstances referred to supra and also the fact that money was not recovered from the person of the accused, the aforesaid decision cannot help the prosecution in this matter. 23. The other decision given in Reddy Rammohan Rao V. Additional Commissioner of Police, Hyderabad[2] pertains to the procedure to be followed in investigating a case. It is not necessary to go into this aspect in detail. It has been cited to counter the arguments of the defence counsel that in this case the F.I.R. was issued and case was registered on 3.7.2000 as per the evidence of P.W.6 another CBI official whereas P.W.5 laid the trap and conducted the search on 2.7.2000 and therefore the trap itself was illegal and this question has not been argued at length and the defence counsel mainly confined to the merits of the matter. It may be noted that the method and manner in which P.W.5 proceeded with the trap soon after receiving Ex.P.1 complaint on 2.7.2000 at about 7.00 a.m. leaves much to be desired and the evidence shows that he did not even verify properly about the first demand allegedly made on 29.6.2000 as the evidence of P.W.3 itself throws a doubt on it. As the prosecution case has been seen to be doubtful on the very merits of it, it is not necessary to go into the above question. 24. To sum up, as already mentioned the prosecution version that the accused demanded the amount first on 29.6.2000 has been found to be reasonably doubtful though the prosecution must positively prove that there was a prior demand for bribe to support the charges. Except the version of P.W.1, there is no other evidence to show what transpired between him and the accused inside the house of the accused and therefore the accused made the demand on the date of trap and collected it also becomes doubtful as the tape recorder has not been produced to support the version of P.W.1. The aforesaid circumstances relating to the trap and the recovery of money at the