Andhra Pradesh High Court - Amravati
D. Sankaranayanarayan, vs The State Of Ap Rep By Its Pp Hyd., on 23 September, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No.482 of 2007
JUDGMENT :
1. Originally A1 to A3 were tried in C.C.No.28 of 2001 on the file of the Special Judge for SPE & ACB Cases, Nellore, for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 against A.O.1 under Section 7 read with Sections 12 and 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against A.O.2 and under Section 7 read with Section 12 of Prevention of Corruption Act, 1988 against A.3. By its judgment dated 4.4.2007, the learned Special Judge, while acquitting A.O.2 and A3 of all charges, convicted A.O.1 under Section 7 of Prevention of Corruption Act, 1988 and sentenced him to suffer Rigorous Imprisonment for a period of six months and to pay a fine of Rs.500/-, in default, to suffer Simple Imprisonment for one month. He was also found guilty under Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to suffer Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month. The sentence of imprisonment imposed under both the counts was directed to run concurrently.
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2. The substance of the charge against accused is that on 24.9.2000, A1 demanded a sum of Rs.1,500/-, which was reduced to Rs.1,000/-, as bribe from one Varalakshmamma for issuance of Registration Certificate for her Medical and Fancy Stores and in pursuance thereto, on 29.9.2000, accepted the same as illegal gratification other than legal remuneration. Out of the bribe amount of Rs.1,000/-, an amount of Rs.900/- was recovered from the personal diary of A1, which was on the table of A.O.1, while balance amount of Rs.100/- was recovered from A3.
3. The facts, as culled out from the evidence of the prosecution witnesses, are as under:
P.W.1, started Diana Youth Association in the year 1999, of which association she was the President. A year after it was registered, they thought of establishing a Medical & Fancy Stores by name M/s.Diana Medical and Fancy Stores.
Accordingly, applied for a loan under the Chief Minister Employment Yojana and with the loan amount and the savings, they started a shop, with P.W.1 as its Proprietor. On 28.2.2000, they obtained drug license and on the very same day, they claim to have applied for issuance of a Registration Certificate from A.C.T.O.'s office through one D.Padmanabha Rao, a Private Accountant. It is said that, they submitted the application along with the documents and challan of Rs.100/-, through Padmanabha Rao (not examined) in A.C.T.O's. Office at Pakala.3
Though it was submitted on 28.2.2000, that they did not receive the Registration Certificate. However, on 24.4.2000, they opened the shop. While things stood thus, on 14.8.2000, A.O.1, who was working as A.C.T.O., Pakala, visited the shop and informed P.W.1 that without registration she cannot run the shop and accordingly imposed a penalty of Rs.1,000/-. Though P.W.1 and others told A.O.1 that they applied for registration and the same is pending with them, but, A.O.1 did not agree for the same and accordingly, collected Rs.1,000/- and passed on a receipt. He further told them that no application for registration is pending in their office and advised them to apply afresh with documents enclosing a challan of Rs.100/-.
4. On 18.8.2000, P.W.1 obtained a challan for Rs.100/- and went to the office of A.C.T.O. on 4.9.2000 along with documents and challan. At that time, A.O.1 is said to have demanded a bribe of Rs.1,500/- for issuing the Registration Certificate. P.W.1 expressed her inability to pay and requested him to do the needful. Then, A.O.1 is said to have stated that, unless P.W.1 pays Rs.1,000/-, he will not issue the Registration Certificate. As P.W.1 was not willing to pay the bribe amount, she went to the office of A.C.B. at Tirupati on 28.9.2000 at 10.00 AM, and presented a report - Ex.P1 before P.W.7 - D.S.P., A.C.B., Tirupati Range, who received the same and after seeing the contents, asked P.W.1 to come on the next day with the proposed bribe amount, which was intended to be given to A.O.1. In the meanwhile, P.W.7 conducted a preliminary enquiry 4 with regard to the reputation of A.O.1 and the genuineness of P.W.1. On being satisfied that there were no ill-feelings between P.W.1 and A.O.1, informed the said matter to the Director General, A.C.B., Hyderabad and obtained prior permission for registering the a crime and to lay a trap against A.O.1. On the same day i.e., 28.9.2000 at 5.00 PM, he registered a case against A.O.1 under Sections 7 and 11 of the Prevention of Corruption Act and issued Ex.P19 - F.I.R. He sent requisition to Executive Engineer, R.& B, Tirupati, to depute one gazetted officer and one non-gazetted officer to act as mediators with instructions to report on 29.9.2000 at 7.00 AM.
5. On 29.9.2000, P.W.7, along with staff members and two mediators - I.S.Rama Rao and P.W.2, assembled in his office by 7.00 AM. P.W.1 also came to the office. P.W.7 introduced her to the mediators and vice versa and showed the copy of F.I.R. to mediators. He asked one of the mediators to read over the contents of F.I.R. loudly. On being satisfied with the allegations in the report and the authenticity of the report, the mediators put their initials on the copy of F.I.R. - Ex.P6. At that point of time, P.W.1 produced currency notes. P.W.7 asked the second mediator to receive the currency notes, count the same and to read over the serial numbers and denominations loudly. After completing all the required formalities, namely, explanation of the importance of phenolphthalein test to P.W.1, the first mediator's report was prepared, which is placed on record as Ex.P7. After completing the first mediator's report at 8.30 AM, 5 P.W.7, along with the trap party, left the A.C.B. office at 8.40 AM and reached Pakala by 10.00 AM. After parking the vehicle in the vicinity of A.O.1's office, P.W.7 asked P.W.1, Head Constable and the second mediator - P.W.2 to get down from the jeep and proceed towards the office of A.O.1. At that time, P.W.7 instructed P.W.1 to hand over the tainted currency notes only on further demand, but not otherwise. The trap party proceeded to the office of A.O.1, followed by the Head Constable and Inspector, while others took vantage positions.
6. By the time P.W.1 went into the office, A.O.1 was present there. PW1 requested A.O.1 to issue Registration Certificate, but, he enquired as to whether she brought the bribe amount. After answering in affirmative, PW1 handed over the amount to A.O.1, who received the amount with his right hand and gave the amount to A2, who is an Attender in the same office, with his left hand. Thereafter, A.O.1 gave the registration certificate. P.W.1 signed in the duplicate copy of the Registration Certificate putting the date as 29.9.2000. She came out of the office along with registration certificate and gave the pre-arranged signal of wiping her face thrice with a handkerchief. Immediately, D.S.P. and the raid party rushed in to the office of A.O.1. P.W.7 noticed P.W.1 standing in front of the office of A.O.1. He asked her to stay there itself till he calls her inside the office. On entering the second floor of the A.C.T.O's office, P.W.7 noticed three persons standing at B1 clerk seat and another person sitting in the fly wood partition, facing north. P.W.7 introduced 6 himself and the mediators to A.O.1 and ascertained his name. He detained other staff also in the office. P.W.7 prepared two glass tumblers of sodium carbonate solution and asked A.O.1 to rinse his right hand fingers in one glass tumbler. When he did so, the same turned into pink colour. When A.O.1 rinsed his left hand fingers in another glass tumbler, there was no change in the colour of solution. M.Os.3 and 4 are the resultant solutions. When questioned about the tainted currency notes, A.O.1 gave an explanation, which was incorporated in Ex.P12 - second mediator's report. In pursuance to the version of A.O.1, P.W.7 asked P.W.2 to take the notes from Ex.P8 diary and to read over the serial numbers and denominations, which tallied with the numbers mentioned in the first mediator's report. The amount seized is placed on record as M.O.10. P.W.7 rubbed a cotton swab on the papers of Ex.P8, which came into contact with M.O.10 amount and rinsed the same in a freshly prepared sodium carbonate solution, which gave positive result. The resultant solution was transferred into a separate bottle, sealed, labelled and placed on record as M.O.5. Subsequently, he got prepared two glass tumblers of sodium carbonate solution and directed A.O.2 to rinse fingers of both his hands and on doing so both hands gave positive result. P.W.7 transferred the resultant solutions into separate bottles, sealed and labelled them and placed them on record as M.Os.6 and 7. Thereafter, he questioned about the possession of the amount and recorded his version in Ex.P12. Pursuant to the version of A.O.2, A3 was 7 called and he was also subjected to phenolphthalein test, both the hands of A3 also tested positive. The resultant solutions were transferred to a sealed bottled and they were marked as M.Os.8 and 9. A3 produced Rs.100/- and number on the note when compared with the number mentioned in the first mediator's report, is tallied. The version of A3 was also incorporated in Ex.P12. P.W.7 provided an alternative shirt to A3, got removed his T-shirt and tested the inner lining of the T- shirt pocket in sodium carbonate solution which yielded positive result. A.O.1 was asked to produce the file relating to Registration Certificate of P.W.1, which was produced and the same is placed on record as Ex.P9. A.O.1 also produced Ex.P10 note file. After completing the above proceedings, P.W.1 was called and enquired as to what happened after she left the raid party, till the raid party came there. Her version was also noted in Ex.P12. She produced Registration Certificate issued by A.O.1, which was seized under panchanama.
7. The Investigating Officer examined attenders who were present at the time of trap proceedings and their version was also incorporated in Ex.P12. All the three accused were arrested and then released on executing personal bonds. Thereafter, they searched the house of A.O.1, but, nothing incriminating was found. Ex.P13 is the formal search list. Further investigation was taken up by P.W.8, who, after recording the statements under Section 161 Cr.P.C., filed a charge-sheet, which was taken on file as C.C. No.28 of 2001 on the file of the Special 8 Judge for SPE & ACB Cases, Nellore. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were furnished and when examined under Section 239 Cr.P.C., all the accused pleaded not guilty and claim to be tried. In support of its case, the prosecution examined P.Ws.1 to 8 and got marked Exs.P1 to P19. After completing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but, no oral evidence was adduced, except marking Ex.D1.
8. Believing the evidence of P.Ws.1 to 8, the learned Special Judge convicted A.O.1, while acquitting A.O.2 and A3, as stated earlier. Challenging the same, the present appeal came to be filed by A.O.1.
9. Learned counsel for the appellant would submit that the evidence of P.W.1 cannot be accepted with regard to demand or acceptance, since the same is not corroborated by any other independent witness. Apart from that, he would submit that, the evidence of P.W.1 is liable to be rejected in view of the inconsistencies and the improvements made with regard to demand and also acceptance. He further pleads that the demand alleged to have been made in the First Information Report was on 24.9.2000, but, while giving evidence, she deposed as if the demand was on 4.9.2000. In so far as 9 acceptance is concerned, he would submit that even as per the evidence of P.W.1, A.O.1 is said to have accepted the money with his right hand and gave it to A.O.2 with his left hand, but the phenolphthalein test conducted on left hand proved negative. According to him, these two circumstances are enough to show that P.W.1 is not speaking the truth. Moreover, there is every reason for P.W.1 to speak falsehood, since A.O.1 has imposed a fine of Rs.1,000/- on the shop of P.W.1, for running the shop without having the Registration Certificate. It is also urged that, there is no official favour pending as on that date with A.O.1. The letter dated 12.9.2000 indicates that, much prior to the demand on 24.9.2000, A.O.1 has already addressed a letter to the Commercial Tax Officer-II, Tirupati, enclosing the application in Form-D for according permission for issuance of Registration Certificate, which fact is known to P.W.1. Hence, the question of paying the amount does not arise. It is also urged that by 19.9.2000, permission was granted for issuance of Registration Certificate. Therefore, it is pleaded that, payment of money for issuance of Registration Certificate cannot be accepted. In view of all the circumstances, since the date of alleged demand is inconsistent and there is no acceptance of money as it was not recovered from A.O.1, though he claims to have accepted and given it to A.O.2, a doubt arises as to whether really the prosecution has made out the case.
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10. Learned Standing Counsel for ACB opposed the same contending that, material available on record show that the money was demanded and accepted by A.O.1. According to him, the evidence of P.W.1 clearly shows that after accepting the money, he gave it to A.O.2, who is an Attender in the said office. Thereafter, the Registration Certificate was handed over to P.W.1. The explanation given by other accused and the material on record show as to how the money came into the diary, which was on the table of A.O.1. Therefore, in the absence of any explanation given for receipt of money and also phenolphthalein test turning positive when A.O.1's right hand was subjected to test, he would submit that the prosecution has made out a case constituting offences under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. In so far as inconsistencies in the dates of demand, he would submit that the same are minor in nature, which do not go to the root of the matter. Apart from that, he would submit that, though the Registration Certificate was ready by 19.9.2000, A.O.1 intentionally did not give it to P.W.1 and only after payment of money on 29.9.2000, he gave the certificate. In the absence of any explanation given by A.O.1 as to why he failed to hand over the certificate to P.W.1 from 19.9.2000, though it was ready on that day, learned Standing Counsel for ACB would submit that a presumption has to be drawn that money recovered is the bribe amount, which he has received for issuance of Registration 11 Certificate. In view of the above, he pleads that the findings of the trial court warrants no interference.
11. The point that arises for consideration is, whether the prosecution was able to prove the guilt of A.O.1 beyond reasonable doubt for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988?
12. In order to prove a case under Section 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, the prosecution has to prove 1] whether there was any demand of money as gratification other than legal remuneration?; 2]whether the money which was paid pursuant to demand was accepted; 3] whether there was any favour which the accused could have done at the time of demand or acceptance?
13. In P.Satyanarayana Murthy v. The District Inspector of Police and Others 1 the Apex court held that mere possession and recovery of currency notes from an accused without proof of demand would not establish Section 7 as well as 13(1)(d)(i) & (ii) of the Prevention of Corruption Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality 1 AIR 2015 SC 3549 12 and of permeating mandate for an offence under Sections 7 and 13 of the Act. Dealing with the same, the Court observed as under :
"The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."
14. The said principle was reiterated by the Apex Court in Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjab2, as under:-
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these 6 (2014) 13 SCC 55 two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."
15. From the judgments referred to above, the Apex Court has categorically held that, in order to prove a charge under Sections 7 and 13 of 1998 Act, the prosecution has to establish by proper 2 (2017) 8 Supreme Court Cases 136 13 proof, the demand and acceptance of illegal gratification. The court held that till that is accomplished, accused should be considered to be innocent. The proof of demand of illegal gratification, thus, is the gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of 1998 Act and in the absence thereof, unmistakably the charge therefore, would fail. The Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors proof of demand, ipso facto, would thus not be sufficient to bring home charge under aforesaid two sections.
16. Keeping in mind the principle laid down and in order to appreciate the rival arguments advanced, it will be useful to refer to the evidence of the witnesses. P.W.1 started an association called Diana Youth Association in the year 1999, thereafter, got it registered. A year later, she, along with others, thought of establishing a Medical & Fancy store and as such, applied for a loan under Chief Minister Employment Yojana. After obtaining drug licence on 28.2.2000, they applied for Registration Certificate through one D.Padmanabha Rao, a private accountant. It is said that through the said Padmanabha Rao, an application, along with required fee of Rs.100/-, was submitted in the A.C.T.O's office at Pakala. On 14.8.2000, A.O.1 inspected the shop of P.W.1 and pointed out the illegality in running the shop without Registration Certificate and accordingly imposed penalty of Rs.1,000/-. Though P.W.1 and others told A.O.1 that they have applied for Registration 14 Certificate and the same is pending in the office, but, A.O.1 is said to have told them that, no such application is pending in his office. He advised P.W.1 to submit an application afresh along with Rs.100/- challan. On 18.8.2000, P.W.1 paid Rs.100/- challan and went to the office of A.C.T.O. on 4.9.2000 along with documents. On that time, A.O.1 demanded a sum of Rs.1,500/- which was later reduced to Rs.1,000/-, for issuing the Registration Certificate. As she was not willing to pay the bribe amount, went to office of ACB at Tirupati on 28.9.2000 and set the law into motion. The trap was arranged on 29.9.2000 at about 10 AM, at which time, the raid party proceeded to Pakala and P.W.1 went to the office of A.O.1 along with bribe amount. A.O.1 was present in the office. When P.W.1 enquired about the Registration Certificate, A.O.1 is said to have asked her as to whether she brought the bribe amount. After answering in affirmative, P.W.1 handed over the bribe amount, which was accepted with his right hand and then passed over the same to A.O.2 with his left hand and thereafter, the certificate was given to P.W.1.
17. In substance, it is the evidence of P.W.1. that, the demand was on 4.9.2000 and the amount was said to have been accepted on 29.9.2000. At this stage, it would be appropriate to refer to the contents in the First Information Report lodged by P.W.1 herself on 28.9.2000 before P.W.7 - D.S.P. 15
18. A reading of the First Information Report would show that P.W.1, along with others, started M/s.Diana Medical & Fancy Stores at Damalacheruvu. As they have no registration number for the medical shop, A.O.1 - A.C.T.O., Pakala, imposed a fine of Rs.1,000/- on 14.8.2000. It is said that thereafter they applied for registration of their shop and submitted necessary challan along with documents on 4.9.2000. It is said that as the registration number was not received, P.W.1 went to Pakala on 24.9.2000, met A.O.1 demanded her an amount of Rs.1,500/- as bribe for getting registration number for their shop. As she was not in a position to pay such amount, A.O.1 is said to have reduced it to Rs.1,000/-. As per the First Information Report, bribe of Rs.1,000/- has to be paid on or before 29.9.2000 and then only A.O.1 will give the registration number. As P.W.1 has no intention to pay the bribe amount, the present report, which is placed on record as Ex.P1, is lodged.
19. A reading of the report, along with the evidence of P.W.1, show that, the date of demand by A.O.1 is not consistent. While in the First Information Report lodged by P.W.1, it has been stated that A.O.1 visited their shop on 14.8.2000 and then, imposed a fine of Rs.1,000/- and subsequently, on 4.9.2000, she went to the office of A.C.T.O., Pakala and applied for issuance of Registration Certificate enclosing all the documents. As the registration certificate was not issued, P.W.1, again, visited the office of A.C.T.O., Pakala, on 24.9.2000, on which day, A.O.1 is said to have demanded bribe of Rs.1,500/- and 16 thereafter, reduced it to Rs.1,000/-. But, the version given in the Court is different. According to her, on 14.8.2000, A.O.1 came to their shop and told them that they cannot run the shop without registration certificate and imposed a fine of Rs.1,000/-. At that time itself, P.W.1 seems to have told A.O.1 that they have already applied for Registration Certificate and the same is pending in their office. But, A.O.1 has categorically stated to them, that no such application is pending with his Office. This version of pendency of application as on 14.8.2000 itself was never mentioned in the First Information Report.
20. Further, while giving evidence in Court, P.W.1 stated that, on 18.8.2000, she paid challan and went to the office of A.C.T.O., Pakala, on 4.9.2000, along with necessary documents, and that A.O.1 is said to have demanded Rs.1,500/-, which was later reduced to Rs.1,000/-, for Registration Certificate. But, as they are not in a position to pay the bribe amount, she lodged a report on 28.9.2000. The evidence is silent with regard to the demand alleged to have been made on 24.9.2000, which, according to the First Information Report, is the date on which A.O.1 demanded money for the first time. From the evidence of P.W.1 vis-à-vis Ex.P1 report given by her, there is no consistency with regard to the date of demand and also pendency of the application. Hence, this court is of the opinion that the charge with regard to demand is not proved beyond reasonable doubt. 17
21. Coming to the theory of acceptance of the money, P.W.1, in her evidence deposed that, pursuant to a report given on 28.9.2000, a crime was registered and trap was arranged on 29.9.2000, wherein the said amount of Rs.1,000/- was paid on a demand made by A.O.1. According to her, A.O.1 is said to have accepted the amount with his right hand and handed over to A.O.2 - Attender, with his left hand. But, however, the second mediator's report, which was prepared after the trap and which is placed on record as Ex.P12, shows that, though the right hand turned positive to phenolphthalein test, but, when the left hand was dipped into sodium carbonate solution, there was no change in the colour of the solution. Therefore, the version of P.W.1 that A.O.1 accepted the money with his right hand and gave it to A.O.2 with his left hand appears to be incorrect. If that version is true, then both hands of A.O.1 should have turned positive to phenolphthalein test. It will be useful to extract the relevant portion in the second mediator's report, which is as under :
"The DSP prepared fresh sodium carbonate solution into clean glass tumblers. The DSP asked Sri D.Sankarnarayana to rinse his right hand fingers in one of the glass tumblers. Accordingly, when the ACTO did so, the colourless solution turned pink in colour. For this change the ACTO stunned and (N.C) again the DSP asked the CTO to rinse his left hand fingers in another glass tumbler containing colourless sodium carbonate solution. Accordingly when the ACTO dip there is no change in colour. Both the resultant sodium carbonate hand washers of ACTO Sri D.Sankarnarayana are transferred into two bottles, sealed in wax presence and both were affixed with labels with descriptive particulars on which we the mediators attested."18
22. Even the Investigating Officer in his evidence deposed about the same, which is as under :
"I prepared two glass tumblers of sodium carbonate solution and asked A.O.1 to rinse his right hand fingers in the glass tumbler. When he did so, it turned into pink colour. Again, I asked him to rinse his left hand fingers in the another glass tumbler. When he did so, there was no change of colour of the solution. I got transferred both the solutions into two bottles, labelled, descriptive particulars were noted on them, initialled by the mediators and myself and seized by me. They are M.Os.3 and 4."
23. As seen from the evidence, the amount was accepted with right hand and handed over to A.O.2 with left hand, as stated by P.W.1 in her evidence, then, both the hands of A.O.1 should have been turned positive, but, strangely, the left hand of A.O.1, which was used for transferring the money to A.O.2, turned negative to phenolphthalein test. Therefore, a doubt arises as to whether really the money was paid or the money was kept in the diary of the accused without his knowledge. Two things are to be taken into consideration -(1) when A.O.1 has demanded and received the bribe amount as alleged by the prosecution, the normal human conduct would be to count the money by himself and thereafter, giving a part of money to other accused or keep money by himself either in the pocket or in the diary. The version of A.O.2 is that, the money was given to him to count and give a sum of Rs.100/- to A3 which appears to be slightly improbable. When the A.O. has received the bribe for Rs.1500/- to Rs.1000/-, and when the bribed amount is ten hundred rupee notes, he would not issued the Registration Certificate to 19 P.W.1, even before counting is done by A.O.2 and allow her to leave the office.
24. From the above it is clear that, the version of P.W.1 that A.O.1 received the money with his right hand and gave it to A.O.2 with his left hand is not getting any corroboration from the second mediator's report and also from the evidence of Investigating Officer. Hence, a doubt arises as to receipt of money.
25. In so far as the recovery of the bribe amount is concerned, it would be useful to refer to the evidence of PW1 to PW5. The evidence of P.W.1 is to the effect that she gave the bribe amount of Rs.1,000/- to A.O.1, who took it with his right hand and gave it to A.O.2 with his left hand. Thereafter, she obtained the Registration Certificate, came out of the office and gave the pre- arranged signal. P.W.2, one of the member of the trap party and a mediator to the trap, rushed into the office along with the D.S.P. and introduced themselves. Thereafter, DSP got prepared sodium carbonate solution in two glasses and version given by A.O.1 was recorded in panchanama. It is said that A.O.1 dipped his both hands in two glasses. The right hand of A.O.1 yielded positive to phenolphthalein test, while there was no change in colour when the left hand was dipped. It is his version that A.O.2 was present there and as per the version of A.O.2, an amount of Rs.900/-, out of tainted amount, was kept in page No.25 of a diary of 2000. The diary was said to have been on the 20 table of A.O.1. P.W.2 claims to have taken the said amount from the diary, noted the serial numbers in panchanama and compared the serial numbers of the notes with serial numbers already noted in Ex.P7 which tallied. Ex.P8 is the said diary. Pages in the diary, where tainted notes were kept were subjected to phenolphthalein test, which proved positive. From the evidence in chief of P.W.2 it appears that, the money was recovered from a diary of the year 2000, which was on the table of A.O.1 and immediately thereafter, they seized the said diary. In the cross-examination of P.W.2 it has been elicited that, in all eight chemical tests were conducted at that place and that P.W.2 does not remember the person who prepared sodium carbonate solution. He further admits that at the time of Ex.P12, the hands of P.W.1 were not tested and her hand bag was also not tested.
26. P.W.3 is one of the member of the Youth Association, which was founded by P.W.1. According to him, in the month of August, 2000, P.W.1 and one Rajeswari, who used to sit in their shop informed him that, A.O.1 came to their shop and imposed a fine of Rs.1,000/-. Thereafter, they applied to A.C.T.O., Pakala, for necessary licence to the shop, for which A.O.1 demanded a bribe of Rs.1,500/-, which was later reduced to Rs.1,000/-. According to him, he came to know that P.W.1 consulted D.S.P., ACB and got laid a trap on 29.9.2000. It is clear from the evidence of P.W.3 that, he was neither present at the time when A.O.1 visited the shop of P.W.1, nor when he 21 demanded the amount. Therefore, his evidence, in our view, may not be of much importance.
27. Coming to the evidence of P.W.4, he was working as A.C.T.O., Chittoor, and previously worked as Senior Assistant in the office of A.C.T.O., Pakala. He was looking after B1 Section, which relates to public services, pay bills of the staff, tappal and old arrear files of D.C.T.O. Section. According to him, at the time of incident, A.O.1 was A.C.T.O., A.O.2 was Attender in the office and A3 was engaged by A.O.1 as a private boy. Whenever A.O.1 was going out to check the vehicles, he used to take one Attender and one Head Clerk along with him. They used the Attender to send the tappal and files from one table to another table. According to him, A.O.1 has to collect taxes under Central Sales Tax and APGST. His evidence is also of not much relevance, since he only deposed about the duties of A.C.T.O.
28. Coming to the evidence of P.W.5, he was working as Commercial Tax Officer-I, Tirupati, from 3.8.2000 to March, 2002. His evidence is to the effect that, any shop or establishment, whose turn over is more than Rs.50,000/- per annum, has to be registered with A.C.T.O. under A.P. General Sales Tax Act. Within 30 days from the date of application, the A.C.T.O. concerned has to verify the particulars and then issue the Registration Certificate. He further deposed that, Inspector, A.C.B., in his letter dated 16.10.2000, requested him to furnish the procedure for obtaining Registration Certificate under 22 APGST Act and he addressed a letter Ex.P14 to the Inspector, A.C.B., stating the procedure. His evidence is to the effect that, on 12.9.2000 itself he received the subject file of M/s.Diana Medical and Fancy Stores, Damalacheruvu of Pakala Mandal, in which A.C.T.O. requested permission to issue Registration Certificate. According to P.W.5, he has gone through the file and as the entire file was in order, permitted A.C.T.O., Pakala, to issue Registration Certificate under Memo. Ex.P15, dated 19.9.2000.
29. P.W.6 is Section Officer, Revenue Department, A.P. Secretariat, Hyderabad. He speaks about sanction granted for prosecuting the accused. P.Ws.7 and 8 are the investigating officers, who laid the trap and thereafter, investigated into the matter.
30. As observed earlier, the evidence of PW3 to PW6 may not be of much relevant to prove the acceptance.
31. Though the evidence of P.W.1 is to the effect that, A.O.1, after accepting the money, gave it to A.O.2, but, strangely, the money was not found either with A.O.2 or A3. Out of Rs.1,000/- given, Rs.900/- was said to have been recovered from the diary. While the version of the prosecution is that, this diary, from where the money was recovered, was on the table of A.O.1 and the said tainted amount was taken out from the diary [Ex.P8] and only Rs.900/- was recovered from the said diary. The version of A.O.2 in the post trap panchanama is to the effect 23 that he received the money from A.O.1, gave Rs.100/- to A3 and kept balance in the diary. At this stage, it would be useful to refer to the contents of the post trap panchanama. While the evidence of P.W.2 is to the effect that money was recovered from the diary, which was kept on the table of A.O.1, the post trap panchanama gives a totally different picture. Before dealing with the post trap panchanama, it would be useful to extract the version of P.W.2, which is as under :
"As per the version of A.O.1, an amount of Rs.900/- out of the tainted amount was kept in page No.25 of a diary of 2000. That diary was on the table of A.O.1. I took the amount from the diary and noted the serial numbers in the panchanama and compared the serial numbers of the notes with the serial numbers already noted in Ex.P7 and found that they are tallied with each other. The DSP seized that amount. Ex.P8 is the said diary."
32. But, as seen from the post trap panchanama, immediately after the recovery of file for issuance of Registration Certificate to P.W.1, a rough sketch of the scene of offence was prepared, which includes not only vantage positions taken, but also the sketch of the office where A.O.1 was sitting. The said sketch also includes, table, chair etc., in the room of A.O.1. Strangely, the rough sketch of the scene does not anywhere show the presence of the diary on the table of A.O.1. On the other hand, the contents of post trap panchanama show that from a rack, which was on southern side of A.C.T.O. seat, A.O.1 produced the diary, containing the tainted amount. It will be useful to extract the relevant portion in Ex.P12, which is as under : 24
"On the southern side of ACTO seat racks some files are there. From this rack, the A.O. produced his diary containing the tainted notes on west."
33. When the diary along with the tainted amount was recovered from the rack, which is on the southern side of the A.C.T.O. seat, the explanation offered by A.O.2 that, he has kept the money in the diary, which was on the table appears to be incorrect. In order to escape himself from the prosecution, he deposed in line with the case of prosecution which is contrary to the contents of second mediator's report. It may be true that the version of A.O.1 was not incorporated in post trap panchanama, but, that by itself cannot be a ground to disbelieve the version of A.O.1. Further, the place from where the diary is recovered is also not consistent, while one version, more particularly the version of P.W.2 and explanation of A.O.2 and A3, is to the effect that, the money was kept in the diary, which was on the table, but, the post trap panchanama shows that, it was recovered from a rack, which was on the southern side of A.C.T.O. seat.
34. Coming to the question as to whether any official favour pertaining to P.W.1 is pending with A.O.1, it is to be noted that, the evidence of P.W.5 shows that, on 12.9.2000 itself, which was much prior to the date of demand, as mentioned in F.I.R., P.W.5 received the file of M/s.Diana Medical & Fancy Stores, Damalacheruvu of Pakala Mandal, in which A.O.1 - A.C.T.O., Pakala, requested permission for issuance of Registration Certificate. P.W.5 went through the file and permitted A.O.1 to 25 issue Registration Certificate under a Memo. Ex.P15, dated 19.9.2000. Therefore, by 19.9.2000 itself, the file relating to P.W.1 was cleared by P.W.5 and it was sent back to the office of A.C.T.O. for issuance of the Registration Certificate. Further, by 20.9.2000 itself, the concerned clerk has prepared the certificate of registration and the signature of the concerned officer was also obtained on 21.9.2000. There was nothing left to be done. There is no official favour, pertaining to P.W.1, pending with A.O.1 as on the date of demand or acceptance. If the intention of A.O.1 was to extract the money, he would not have signed Ex.P2
- Registration Certificate, but would have waited till money was paid to him.
35. Be that at it may, when the evidence on record throws doubt on demand, acceptance and recovery of money from a diary, a doubt arises as to whether really there was any demand or acceptance of money. Hence, it is a fit case where benefit of doubt can be extended.
36. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant - A.O.1, for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 in C.C.No.28 of 2001 on the file of Special Judge for SPE & ACB Cases, Nellore, by judgment dated 4.4.2007, are set aside. The appellant - A.O.1 is acquitted and he shall be set at liberty 26 forthwith, if he is not required in any other case. Fine amount paid, if any, shall be refunded to the appellant - A.O.1.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date : 23.09.2020.
skmr/sm