Andhra HC (Pre-Telangana)
S.V.S. Kodanda Rao vs State Of A.P., Rep. By Inspector Of ... on 18 April, 2003
Equivalent citations: 2003(1)ALD(CRI)933, 2003(2)ALT(CRI)51
JUDGMENT Gopala Krishna Tamada, J.
1. The appellant/sole accused, who was a Senior Assistant in Mandal Revenue Office, Atreyapuram, East Godavari District, was tried by the learned III Additional District Judge-cum-Special Judge for S.P.E A.C.B. Cases, Visakhapatnam, in C.C. No. 24 of 1995 for the offences punishable under Sections 7, 11 and 13 (2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 and Section 201 I.P.C. and was ultimately found guilty of the said offences and accordingly sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months for the offence punishable u/s 7 of the Prevention of Corruption Act; rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months for the offence punishable u/s 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act; and rigorous imprisonment for six months for the offence punishable u/s 201 I.P.C.
2. The substance of the charges framed against the appellant is that on 22-3-1990 at about 3.40 P.M. at Mandal Revenue Office, Atreyapuram, East Godavari District, the appellant being a public servant accepted an amount of Rs.200/- to do a favour to the complainant and with an intention to screen away the legal punishment fabricated an inland letter with forged postal stamps to create an impression that the said amount was received as repayment of a debt and thus committed the offences punishable u/s 7, 13 (2) read with 13 (1)(d) of the Prevention of Corruption Act and Section 201 I.P.C.
3. The case of the prosecution as unfolded during the course of trial is that the appellant was working as a Senior Assistant-cum-Head Assistant in the Mandal Revenue Office. In order to obtain a loan from Life Insurance Corporation of India for the purpose of renovating the old house, one Challa Venkata Ramanaiah (father of P.W.1) applied for an agricultural income certificate from the office of the Mandal Revenue Officer and gave the application to P.W.1 asking him to pursue the said application and collect the certificate. Pursuant to that, P.W.1 approached the Village Assistant of Peravaram village and got the required endorsement on the application and as directed by the Village Assistant, his brother (P.W.2) submitted the said application in the office of the Mandal Revenue Officer. On submission of the application, the Revenue Inspector visited their village on 5-3-1990, inquired the father of P.W.1 and recorded his statement. Later, P.W.1 went to the office of the Mandal Revenue Officer on 6-3-1990 and collected the copies of the statements recorded by the Revenue Inspector and also the Adangal extracts. As per the directions of the Revenue Inspector, P.W.1 went to the appellant/accused who was at the relevant point of time working as Head Assistant in the said office of the Mandal Revenue Officer and handed over those papers to him on that day i.e., 6-3-1990. On a perusal of the papers furnished by P.W.1, the appellant informed him that he would not get the required loan on the basis of the said documents and asked him to meet the Mandal Revenue Officer and represent the same. Though P.W.1 went to the M.R.O's office on several occasions thereafter, he could not get the certificate. Finally on 20-3-1990, when he met the appellant in the office, he informed P.W.1 that if he pays an amount of Rs.200/- he would get the certificate. Thereupon, P.W.1 left the office informing the appellant that he would come with money on 23-3-1990 and collect the certificate.
4. In view of the said demand made by the appellant, P.W.1 went to the office of the Deputy Superintendent of Police, A.C.B. at Rajahmundry (examined as P.W.6) on the next day i.e. on 21-3-1990 and gave a report (Ex.P-4). On the basis of the said report, the Dy. Superintendent of Police instructed P.W.1 to come on the next day with an amount of Rs.200/- for the purpose of arranging a trap. After obtaining the necessary permission from the superior officers, P.W.6 registered the complaint on 21-3-1990 as a case in Cr. No. 1/RC-RJY/90 under Sections 7 and 11 of the Prevention of Corruption Act and issued F.I.Rs. to all concerned. Ex.P-27 is the F.I.R. sent to the court.
5. On 22-3-1990 morning, as per the instructions of P.W.6, P.W.1 went to the office of P.W.6 and by that time the mediators who were already arranged for the purpose of trap (i.e., P.W.5 and another) were present. After introduction, P.W.6 furnished a copy of the F.I.R. to the mediators and asked them to go through the same and verify the contents and truth of the same with P.W.1. On production of the required amount of Rs.200/- (i.e., two Rs.50/- notes; four Rs.20/- notes and two Rs.10/- notes), P.W.6 asked the mediators to note down the numbers of the currency notes in the panchanama and explained about the trap method and also conducted test demonstration through one constable by name M. Jola Rao. The mediators report drafted by P.W.5 is marked as Ex.P-25.
6. On the same day i.e., on 22-3-1990 at 1.15 P.M., P.W.6, P.W.1, mediators and the police staff including two Inspectors, one Sub-Inspector, one Head Constable and P.C. Nos. 483 and 914 proceeded to the M.R.O's office at Atreyapuram. After reaching the M.R.O's office at 2.00 P.M., P.W.6 reiterated his earlier instructions to P.W.1 and asked him to go to the M.R.O's office by walk and further instructed his staff members to follow P.W.1 one after another. After entering the office at about 2.15 P.M., when P.W.1 enquired, he was informed that the appellant went out for the purpose of meals and he would come to the office at 3.30 P.M. Accordingly, P.W.1 waited in the office till 3.30 P.M. when the appellant came to his seat. When P.W.1 wished the appellant, the appellant asked him to wait and after some time, both of them came out of the office. The appellant then questioned P.W.1 as to whether he brought the amount of Rs.200/-. When P.W.1 informed that he brought the required amount, the appellant called one Clerk and asked him to pick up the file relating to the agricultural income certificate of the father of P.W.1. Later, both of them went inside the office. The concerned Clerk who picked up the file relating to the father of P.W.1 obtained the signature of P.W.1 as a token of receipt of the certificate. Later, both the appellant and P.W.1 came out of the office where P.W.1 paid the amount of Rs.200/- and the same was received by the appellant with his right hand and kept the same in his right side pant pocket. Afterwards, both of them went inside the office and as per the instructions of the appellant, the concerned Clerk delivered the certificate (Ex.P-2) after obtaining the necessary endorsement from P.W.1. Then, as per the arrangement, P.W.1 came out of the office and gave a signal. On receipt of the said signal through H.C.29, P.W.6 along with mediators and staff went inside the M.R.O's office at 3.45 P.M. and found P.W.1 standing outside the office. P.W.1 led the raiding party inside the office and showed the appellant. P.W.6, after introducing himself, confirmed the identity of the appellant. P.W.6 then seized the tainted amount of Rs.200/- from the appellant and conducted Phenolphthalein test, which proved to be positive. When questioned, the appellant admitted about the receipt of the said amount. The said admission of the appellant, seizure of the amount from the appellant etc., was reduced into writing and the said panchanama is marked as Ex.P-26. Immediately thereafter, the appellant was arrested and was released. P.W.7 had thereafter taken up the investigation. After examining P.W.3 and another and recording their statements, P.W.7 got the statement of P.W.1 recorded through the II Additional Judicial I Class magistrate, Rajahmundry, under Section 164 Cr.P.C.
7. On 14-11-1990, when P.W.7 received a copy of the representation dated 20-10-1990 from the accused addressed to the Director General, A.C.B., along with a copy of the inland letter dated 22-2-1990 (Ex.P-6), which is alleged to have been addressed by P.W.1 to the appellant, P.W.7 examined the appellant and P.W.1 and ultimately confirmed that the said inland letter was written by P.W.1 under duress and was not written voluntarily. In the light of the said inland letter, P.W.7 visited the Post Offices at Peravaram and Atreyapuram on 19-6-1991 and took the specimen impressions of the stamps of the said Post Offices on white paper (marked as Exs.P-22, P-20 & 21 respectively). He also examined the Post Masters of those two post offices. On a comparison of the material collected from the respective post offices with the postal seal available on the inland letter (Ex.P-6), P.W.7 came to the conclusion that the appellant was trying to misguide the prosecution in order to escape the legal punishment and thereby committed another offence under Section 201 I.P.C. After obtaining the required sanction, P.W.7 filed charge sheet.
8. In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 7 and got marked Exs.P-1 to P-32. The appellant got Exs.D-1 and D-2 marked on his behalf. The plea of the accused was one of total denial. According to his statement recorded at the time of his examination under Section 313 Cr.P.C., during the period from 18-3-1990 to 22-3-1990, he was on an assignment to check the ration cards and as such he was not present in the office during the said period. Further, according to him, the said amount of Rs.200/- was received by him on 22-3-1990 towards repayment of the loan taken by P.W.1 on an earlier occasion. On a consideration of the entire evidence on record, the court below came to the conclusion that the accused is guilty of all the charges framed against him and accordingly sentenced him as stated supra.
9. Learned senior counsel Sri C. Padmanabha Reddy, appearing for the appellant, contended that the appellant is only a Senior Assistant who is not at all competent to issue agricultural income certificate and even according to the case of the prosecution it is only the Mandal Revenue Officer who is competent to issue the said certificate and as such the story put forth by the prosecution that the appellant demanded an amount of Rs.200/- for the purpose of issuing the said certificate is totally baseless. It is further contended that if really it is true that the appellant demanded money for issuing the certificate, the payment could not have been made after the issuance of the certificate as no favour is generally done without first receiving the bribe amount. Further, according to the learned counsel, the evidence of P.W.3 totally falsifies the evidence of P.W.1 and the entire case of the prosecution. In this connection, he drew my attention to the evidence of P.Ws.1 and 3. According to P.W.1, he visited the office of the Mandal Revenue Officer by 2.30 P.M. and waited for the arrival of the appellant till 3.30 P.M. and after his arrival, on ascertaining that he brought the required money, the appellant directed the concerned Clerk to hand over the agricultural income certificate and accordingly the certificate was handed over by the Clerk to P.W.1 after obtaining the necessary endorsement. But P.W.3, the Mandal Revenue Officer, has categorically stated that it is he who directed the concerned Clerk to issue the certificate to P.W.1 and accordingly the certificate was handed over by the concerned clerk to P.W.1 in his presence. Learned senior counsel contends that the above discrepancy in the evidence of P.Ws.1 and 3 goes to the very root of the case and it gives rise to an inference that the prosecution has not come up with clean hands. He contended that even though the appellant could not give any spontaneous explanation that the amount received by him was towards repayment of the loan, immediately thereafter he addressed a letter to the Director General, A.C.B., informing him that the said amount which was received by him was towards repayment of the loan and so as to establish the said factum, he also sent the letter allegedly addressed by P.W.1 to him (marked as Ex.P-6 and Ex.D-2). In view of the said letter, learned counsel contends that the appellant/accused did not commit any offence and he is, therefore, entitled for acquittal.
10. On the other hand, Mr. G. Peda Babu, learned standing counsel, submitted that P.W.1 and the appellant are not friends though not strangers and as such the theory put forth by the defence that the amount of Rs.200/- was paid towards repayment of the hand loan is far from truth. It is his further contention that if really the amount received by the appellant was not towards bribe, there was no necessity for P.W.1 to foist a false case against the appellant. According to him, the theory put up by the defence that the said amount was paid by P.W.1 towards repayment of loan and the alleged letter said to have been addressed by P.W.1 to the appellant is to be disbelieved in the light of the positive evidence of the Post Master (P.W.4). According to the learned standing counsel, with an evil intention to escape punishment, the appellant himself got prepared the rubber stamps and tried to create evidence as if Ex.P-6-letter was written by P.W.1 himself. Learned Standing Counsel contended that the prosecution has proved the guilt of the appellant by preponderance of probabilities and therefore sought for dismissal of the appeal.
11. In the light of the submissions made by both the counsel, the point for consideration is whether the appellant received the amount of Rs.200/- from P.W.1 to do an official favour to P.W.1 and whether he created false evidence by pressing Ex.P-6-letter into service.
12. In order to substantiate the charges levelled against the appellant herein, the prosecution examined the de facto complainant Challa Venkata Subrahmanyam as P.W.1. P.W.2 is the brother of P.W.1. P.W.3 is the Mandal Revenue Officer of Atreyapuram. P.W.4 is the Sub-Post Master of Atreyapuram. P.W.5 is the mediator for the pre-trap proceedings and also for the trap. P.W.6 is the Deputy Superintendent of Police who conducted the trap. P.W.7 is the Inspector of Police who conducted the post-trap investigation.
13. As already stated, P.W.1 is the person at whose instance the trap was conducted. He spoke elaborately about the alleged demand of the appellant and also about the trap conducted by the ACB officials. Therefore, he is the star witness for the prosecution. P.W.2, the brother of P.W.1, submitted the application for the issuance of Agricultural Income Certificate in the M.R.O. office. As he was examined to establish only the said factum, his evidence is not of much help to the case of the prosecution. P.W.4, the Sub-Post Master of Atreyapuram, was examined to speak about the postal stamps appearing on Ex.P-6-inland letter, which was alleged to have been produced by the appellant before the police after the trap. His evidence, therefore, is also not useful for the prosecution to establish the main charge. P.W.5 is the mediator who came to the M.R.O. office at the request of the ACB Police. He narrated in his evidence the role played by him at the time of the trap as well as at the time of the test demonstration conducted by the ACB police prior to the trap. His evidence is useful for the prosecution for corroborating the independent evidence, if any. P.W.6 is the Dy. Superintendent of Police who conducted the trap. He gave a detailed account of his conducting the trap and also about the test demonstration conducted prior to the trap in his office. P.W.7 is the Inspector of Police who conducted the post-trap investigation as per the instructions of P.W.6. The evidence of the investigating officers especially in a case of this nature being interested evidence cannot alone form the basis for conviction unless their evidence is corroborated by the evidence of the de facto complainant and other independent witnesses. Therefore, the question of relevancy of their evidence depends upon the veracity of the other witnesses examined by the prosecution. There remains the evidence of P.W.3 who is the Mandal Revenue Officer of Atreyapuram under whom the appellant was working as Senior Assistant and in whose office the trap was conducted by P.W.6 and his staff. Although P.W.3 was examined by the prosecution for the limited purpose of speaking to the procedure being followed in their office while issuing Agricultural Income Certificates, his evidence is important as he was present in the Mandal Revenue Office at the time of the trap. His evidence also assumed importance in this case in view of the fact that he being the competent authority to issue the Agricultural Income Certificates gave a different account than the one which was spoken to by the de facto complainant (P.W.1) in his evidence, which, if believed, would go to the very root of the case. As the entire case of the prosecution hinges on the evidence of P.W.1, the question for determination is whether the evidence of P.W.1 can be brushed aside in view of the contradictory evidence of P.W.3 who is an independent official witness. Before going into the said aspect, I shall examine the legal evidence adduced by the prosecution in this case through P.Ws.1 and 3.
14. It is the evidence of P.W.1 that his father viz., Challa Venkataramaiah, a resident of Peravaram in Atreyapuram Mandal, intended to construct a house and in their attempt to raise funds, they thought of obtaining loan on the L.I.C. policy which he obtained in his name. In that connection, the L.I.C. officials asked Venkataramaiah to obtain agricultural income certificate. Therefore, Venkataramaiah gave the application (Ex.P-1) along with the required enclosures to P.W.1 and asked P.W.1 to present the same in the M.R.O. office at Atreyapuram. P.W.1 then approached the Village Assistant of Peravaram village and obtained his endorsement on the said application. Thereafter, P.W.1 asked his brother (P.W.2) to present those papers in the M.R.O. office, Atreyapuram and accordingly his brother (P.W.2) presented the same. Pursuant to the said application, the Revenue Inspector recorded the statement of his father on 5-3-1990. The copies of the said statements were handed over to P.W.1 by the Revenue Inspector. As per the directions of the Revenue Inspector, P.W.1 thereafter approached the appellant herein in the M.R.O. office at Atreyapuram.
15. After going through the papers, the appellant told P.W.1 that they would not get the agricultural income certificate as desired by them and asked him to represent the matter before the M.R.O. (P.W.3). Thereafter, P.W.1 went to the M.R.O. office 5 or 6 times but they did not issue the certificate. Finally, he went to the M.R.O. office on 20-3-1990 and met the appellant. The appellant informed P.W.1 that unless Rs.200/- is paid to him, P.W.1 could not get the certificate. P.W.1 told the appellant that he would meet him on 23-3-1990 and left the office.
16. On the next day i.e., on 21-3-1990, P.W.1 gave a report to P.W.6. Thereupon, P.W.6 arranged the trap. He called the mediators and organized test demonstration of the trap in his office. The mediators noted down the serial numbers of the currency notes worth Rs.200/- which were brought by P.W.1 as per the direction of P.W.6.
17. Then on 22-3-1990, P.Ws.6 and 1, mediators and other police staff went to the M.R.O. office and reached there by 2.15 P.M. When they reached the M.R.O. office, P.W.1 was informed that the appellant went to have his lunch and that he would come back to the office by 3.30 P.M. P.W.1 waited in the office itself till 3.30 P.M. The further evidence of P.W.1 is crucial. It reads as under:
" The Head Assistant came to the office at 3.30 P.M. and went to his seat. I went to his seat and I wished him. He asked me to wait. After sometime we both came out of the office and the Head Assistant asked me whether I brought the amount of Rs.200/- and I told him that I brought the amount. Then he called one clerk and asked him to pick up the file relating to the Agricultural Income Certificate. The Head Assistant went into the office. I also followed him. The concerned clerk picked up the file and obtained my signature in token of the receipt of the copy of certificate and I put my signature. Then the Head Assistant called me outside and asked me to pay the amount of Rs.200/-. Then I picked up the currency notes from my shirt pocket and gave them to the Head Assistant. He received with his right hand and kept the same in his right side pink pocket. Then the Head Assistant went into the office and I followed him. The Head Assistant directed the clerk to deliver the certificate. Accordingly the clerk delivered the certificate. I received it. Ex.P-2 is the certificate delivered by the Clerk to me. I acknowledged the receipt of the certificate Ex.P-2 on Ex.P-3. Ex.P-5 is the endorsement made by me in token of the receipt of the copy of the Certificate. After receiving the certificate, I came out of the office and gave the pre-arranged signal. .... "
18. The above evidence of P.W.1 clinchingly establishes the presence of the Head Assistant i.e., appellant herein, in the M.R.O. office at the time when P.W.1 went to the office on the date of trap, his demanding the amount of Rs.200/- from P.W.1 and finally P.W.1 paying the tainted amount to the appellant after receiving the certificate from the concerned clerk as per the instructions of the appellant. Further, nowhere in his evidence, P.W.1 spoke about the presence of P.W.3 in the office at that time. P.W.1 had even asserted this aspect in his cross-examination by saying that "after I received the certificate, I saw the M.R.O. standing at the entrance door to the Clerk's hall." In the very next sentence, P.W.1 also categorically denied the suggestion that the M.R.O. sat in the seat of A.O. (the appellant) in the Clerk's Hall through out the day on the date of the trap. P.W.1 further went to the extent of saying that on the date of trap, he did not even talk to the M.R.O. Thus, as per the evidence of P.W.1, it was the appellant who had issued the certificate to him by taking the tainted amount from him and the M.R.O. (P.W.3) was never in the picture. The above evidence of P.W.1 was totally contradicted by P.W.3. I shall now proceed to peruse the evidence of P.W.3.
19. According to P.W.3, the M.R.O. of Atreyapuram, the competent authority to issue the Agricultural Income Certificate is the M.R.O. At the outset in his evidence, P.W.3 narrated the procedure being followed by them while dealing with applications for issuance of Agricultural Income Certificate, stating that on receipt of the said application, it will be sent to the concerned Revenue Inspector for enquiry and report. The Revenue Inspector in turn verifies the records available with the concerned Village Assistant and sends up his report to the M.R.O. An office note will thereafter be put up by the concerned clerk. The same will be submitted to the M.R.O. through the Head Clerk. He further stated that at times, if the Head Clerk is not available, the file will be sent to the M.R.O. directly.
20. In regard to the application submitted by P.W.1, P.W.3 deposed that Ex.P-1 application was submitted before him by the son of the applicant on 28-2-1990. On the same day, P.W.3 made an endorsement on Ex.P-1 and forwarded the same to the R.I. for enquiry and report. After enquiry, the R.I. of Atreyapuram submitted his report (Ex.P-9) through tappal on 6-3-1990. On the same day, P.W.3 sent the report of R.I. to the concerned clerk. The evidence of P.W.3 about the subsequent events is important to note. The same is extracted hereunder:
" Thereafter a note was put up by the concerned clerk by name Prasad, Junior Assistant, on 21-3-1990 in his own handwriting. The A.O. recommended for issuance of income certificate on the said office note on 21-3-1990 itself. Ex.P-10 is the office note. Ex.P-11 is the endorsement of the A.O. dt. 21-3-1990 with his initial. The papers came to me through the office attender. I perused the R.I's report Ex.P-9, P-10 the office note, P-11 the recommendation of A.O. After satisfying myself, I issued orders asking the concerned to issue certificate to the applicant. The order is dated 21-3-1990. Ex.P-12 is my initial dt.21-3-1990 on Ex.P-10 note indicating that a certificate can be issued to the applicant. Then I sent the file to the Junior Assistant Prasad. On the same day Mr. Prasad, the concerned clerk, put up the orders before me for my signature. On the same day i.e., 21-3-1990 I signed the certificate. .... "
21. The above evidence of P.W.3 in his chief-examination makes it amply clear that the application of P.W.1's father was processed in their office according to the instructions of P.W.3 and accordingly the Revenue Inspector conducted an enquiry and submitted a report; the concerned clerk Prasad put up an office note and basing on the said office note, the A.O. i.e., the appellant herein, had also recommended for issuance of agricultural income certificate on 21-3-1990 itself i.e., one day prior to the date of trap. The further evidence of P.W.3 in his cross-examination shows that the appellant had no role to play in the matter thereafterwards. It is most relevant to extract the said evidence hereunder:
" On 22-3-1990 in the morning itself I went to camp and returned to office at 1.30 P.M. and was attending to my office work. The telephone in my office will be on the table of Head Clerk i.e., A.O. I was informed by the Attender that I was called over the Phone by somebody. Then I went to the seat of the Head Clerk which was vacant and I sat in the chair and answered the telephone calls. I found a person in the Clerk's hall. On enquiry, he told me that he came to the office to receive the certificate of Challa Venkata Ramaiah. Then I instructed the 'C' Clerk to issue the certificate. He issued the certificate and obtained acknowledgment of that person."
22. The next two sentences in the cross-examination of P.W.3 are even more important. They read thus:
" 45 minutes thereafter, A.O. came to the office. At about 3.45 P.M. on 22-3-1990 ACB officials came to my office and the D.S.P. informed me that the A.O. was trapped by them. "
23. Thus, as seen from the above evidence of P.W.3, it is clear that on that day P.W.1 went to the M.R.O. office and was waiting in the Clerk's Hall. Having seen P.W.1 there in the Clerk's hall, P.W.3 enquired P.W.1 about the purpose for which he came to their office. Then P.W.1 informed him that he was there to receive the Agricultural Income Certificate of his father Challa Venkata Ramaiah. Upon hearing the same, P.W.3 asked the 'C' Clerk to issue the said certificate to P.W.1. Accordingly, the 'C' Clerk issued the certificate to P.W.1 after obtaining his acknowledgment. From the above evidence of P.W.3, it is also clear that by the time the certificate is delivered to P.W.1, the appellant was not at all in picture as he did not come to the office by then. According to P.W.3, the appellant came to the office only thereafter i.e., 45 minutes after the delivery of the certificate by the 'C' Clerk to P.W.1. While so, as already seen, P.W.1 has given a totally different version about the trap. P.W.1 stated that by the time he received the certificate, the M.R.O. was not present in the office. But, the M.R.O. (P.W.3) stated that on that day he came to the office in the afternoon and having noticed P.W.1 sitting there, he talked to him and thereafter instructed the concerned 'C' Clerk to issue the agricultural income certificate to P.W.1. The presence of P.W.3 at the time of trap in the office is not at all in doubt in view of the evidence of the investigating officer (P.W.6) himself in his evidence who categorically stated that the M.R.O. was present in the office at that time. While P.W.1 says that he received the certificate by paying the tainted amount to the appellant, the M.R.O. (P.W.3) states that the appellant was not at all present in the office by the time the certificate is delivered to P.W.1. Thus, there are major discrepancies in the evidence of P.W.1, the de facto complainant, and P.W.3, the responsible Government officer, who was very much present in the office at the time when the trap took place. Interestingly, even though P.W.3 gave different version contradicting the case of the prosecution, no attempt was made by the prosecution to treat him as hostile witness. At least, the prosecution ought to have given a suggestion to him that he was speaking falsehood but no such suggestion was given to him. The question is whether the evidence of P.W.3 can be given weight in preference to the evidence of P.W.1.
24. Having gone through the evidence of P.W.1 and P.W.3, I am of the considered opinion that the evidence of P.W.3 is more cogent, convincing and trustworthy and, on the other hand, P.W.1 did not come to the court with clean hands and he was not speaking truth and that the prosecution had twisted the case to suit its own convenience. Therefore, I am inclined to believe the unbiased testimony of P.W.3 in preference to the evidence of the de facto complainant, who is an interested witness. If the evidence of P.W.3 is believed, the entire case of the prosecution falls to the ground and the defence version set up by the appellant with the help of two inland letters gains credence. For the foregoing discussion, I have no hesitation to hold that the prosecution has failed to prove that the appellant had received the amount from P.W.1 as an illegal gratification for doing an official favour to P.W.1 and consequently, it failed to prove the first and second charges.
25. Now, there remains the third charge, which is framed pursuant to the defence set up by the appellant with the help of two inland letters. According to the prosecution, the appellant approached the investigating agency during the pendency of their investigation and produced two inland letters, wherein P.W.1 alleged to have written that the amount paid by him to the appellant on the date of trap was towards repayment of the handloan which he had taken from the appellant. However, having taken up investigation on this aspect, the police came to the conclusion that those inland letters were fabricated by the appellant himself by forging the postal stamps thereon with a view to evade legal punishment for the main charges. Therefore, the appellant was charge sheeted under Section 201 I.P.C. also. In order to substantiate the above charge, the prosecution relied upon the evidence of P.W.4, the Sub-Post Master of Atreyapuram. P.W.4 in his evidence stated that he compared the delivery stamp on Ex.P-6 inland letter (marked as Ex.P-19) with the delivery stamp of their Post Office and opined that it does not belong to Atreyapuram Post Office. But, in my opinion, it is not at all possible to base conviction by relying on the solitary testimony of P.W.4 as there is no corroboration to his evidence. No steps were also taken by the police to let in any corroborative evidence by examining the postal staff working in Atreyapuram post office. As a matter of fact, P.W.7 had admitted in his evidence that except examining the Post Masters of Atreyapuram and Peravaram, he did not examine any of the employees of those post offices. The police also did not take any steps to send for Ex.P-6 letter to any expert for scientific comparison of the postal stamp on Ex.P-6 letter with the specimen postal stamp of Atreyapuram post office. In the absence of any corroborative evidence and any expert opinion in this regard, it is not safe to believe the sole testimony of P.W.4. Further, even though P.W.1 deposed that the appellant along with four other persons waylaid him and got the two inland letters written in his handwriting after threatening him with dire consequences, the investigation is silent on this aspect. P.W.7 had, in fact, admitted in his evidence that he did not enquire anybody to verify the statement of P.W.1 that Ex.P-6 was obtained under threat. Thus, the allegation of P.W.1 that he wrote the two inland letters under threat or duress from the appellant, remains unproved. Above all, the trap took place on 22-3-1990 and the alleged letters were got written from P.W.1 by the appellant ten days thereafter. While so, P.W.7 examined P.W.4 and showed him Ex.P-6 letter in June 1991 i.e., after the lapse of about ten months after the trap. The said delay in examining P.W.4, in my opinion, also proved fatal. Because, as seen from the evidence of P.W.4, after the expiry of every year, the postal stamp of the post office will be replaced with a new one and the old stamp will be sent to the Superintendent of Post Offices and thus, by the time P.W.7 could examine P.W.4, the postal stamp of Atreyapuram post office pertaining to the year 1990 must have been replaced with a new one. Therefore, the comparison made by P.W.4 of the stamp on Ex.P-6 letter with the new postal stamp of the year 1991 must not have yielded correct result and as such the opinion of P.W.4 and his evidence in court based on such comparison cannot be said to be trustworthy. Having gone through the evidence on this aspect, I am of the view that the investigation on this point appears to be perfect and the evidence is quite insufficient to hold that the appellant had obtained the inland letters forcibly from P.W.1 and forged them as alleged by the prosecution. It takes us to examine the defence taken by the appellant in his statement under Section 313 Cr.P.C., wherein he stated that the amount received from P.W.1 was towards repayment of the handloan which was taken from him by P.W.1. The question is whether, in the absence of any evidence adduced by the defence on this point, the court can take into account the said defence taken up by the accused. In PUNJABRAO Vs. STATE OF MAHARASHTRA, , similar question was dealt with by the apex court and ruled that such an explanation offered by the accused in his statement under Section 313 Cr.P.C. for receiving the amount can be accepted if it is reasonable under the facts and circumstances of the case; that the accused is not required to establish his defence by adducing separate evidence and that his defence can be established by preponderance of probabilities. The relevant paragraph of the above judgment reads thus:
"3. We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is undisputed that from 24th to 26th the Patwari was collecting loans in a collection campaign. It is, of course, true as observed by the High Court that when the Investigating Officer seized the amount from the Patwari-accused, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 when such explanation could be held to be reasonable under the facts and circumstances of the case as indicated by the learned Special Judge while acquitting the accused. It also transpires that the High Court, while setting aside an order of acquittal recorded by the Special Judge, has not focused its attention to the reasoning advanced by the Special Judge, and by mere re-appreciation has come to the conclusion, and in our view the conclusion is based upon a mis-reading of the relevant evidence including the evidence of PW-2. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High court erred in interfering with the well reasoned judgment of the Special Judge in an order of acquittal. We, therefore, set aside the impugned conviction and sentence passed by the High Court. .... "
26. Having due regard to the above decision of the apex court, I have no hesitation to hold that the explanation offered by the appellant herein in his statement under Section 313 Cr.P.C. that the said amount was received by him from P.W.1 on the date of trap towards repayment of the handloan, can be taken into account by the court. As the defence of the appellant is established by preponderance of evidence, it is not necessary for the appellant to establish the said defence by adducing separate evidence.
27. In view of the foregoing discussion, I am of the opinion that the prosecution has miserably failed to prove by adducing unimpeachable evidence that the appellant had taken illegal gratification from P.W.1 for doing an official favour to P.W.1 or that the appellant had fabricated evidence to avoid legal punishment. Therefore, I have no hesitation to hold that the appellant is entitled for acquittal.
28. In the result, the criminal appeal is allowed and the judgment of conviction and sentence passed by the court below is set aside and the appellant is acquitted of all the charges framed against him. The fine amount paid by the appellant shall be refunded to him.