Andhra HC (Pre-Telangana)
M. Radha Krishnamurthy vs The State Of A.P. on 18 July, 2001
ORDER V. Eswaraiah, J.
1. This criminal appeal is filed against the judgment-dated 26.10.1995 made in Calendar Case No.32 of 1991 on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad in convicting the appellant-Accused Officer (for short 'the AO') for the offence punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'the Act') and sentencing him to undergo Rigorous Imprisonment for two years and further to pay a fine of Rs.2,000/- in default to undergo Rigorous Imprisonment for six months.
2. Brief facts of the case are that one Joginath Goud (PW-1) is a resident of Muslapur Village of Jogipet Excise Circle, Medak District; and he is TFT Licensee under Tree For Taper (TFT) Scheme along with two others, namely Anja Goud (PW-2) and Rama Goud, to tap the trees and to sell toddy at Muslapur Village. On 12.6.1989, the AO, who is the Excise Inspector of Jogipet Excise Circle, along with the Assistant Excise Superintendent and other Excise staff, went to the Muslapur Village and raided the cattle shed belonging to one Burra Narsimlu behind the toddy shop of PW-1. (PW-1 was running the toddy shop under Tree For Taper Scheme along with two other TFT Members, i.e. PW-2 and Rama Goud, is not in dispute). During the raid, they have recovered 1 kg of Chloral Hydrate from the cattle shed of Burra Narsimlu said to have been used by Yella Goud, the father of PW-1, under cover of panchanama. So far as the recovery of 1 kg of chloral hydrate is concerned, a case in Crime No.40/88-89 dated 12.6.1989 was registered in Crime and Occurrence Report Register showing the names of Burra Narsimlu and Yella Goud (father of PW-1) as accused persons. It appears that on the same day, near the tank bund at the outskirts of Ramtirt village, they have also recovered 20 kgs. of chloral hydrate; and as the accused persons are not known, the said recovery of 20 kgs. chloral hydrate was also made under the said panchanama and Crime No.42/88-89 dated 12.6.1989 was registered in Crime and Occurrence Report Register, but the names of the accused were kept blank, as it is not known as to who are the accused. A preliminary report (Ex.P-11) with regard to the seizure of 20 kgs. of chloral hydrate near the tank bund at the outskirts of Ramtirt Village in Crime No.42/88-89 dated 12.6.1989 as well as the seizure of 1 kg of chloral hydrate in Crime No.40/88-89 dated 12.6.1989, was sent to the superior officers showing the particulars and the quantity of chloral hydrate. At Sl.No.6 in Crime No.42/88-89 dated 12.6.1989, it is stated that the name of the accused 'Not traceable'. The fact remains that the names of the accused Burra Narsimlu and Yella Goud are shown in Crime No.40/88-89 dated 12.6.1989; whereas in Crime No.42/88-89 dated 12.6.1989, no names have been shown as accused, but in the Preliminary Report informed to the superior officers of the Excise Department, against the column relating to the name of the accused, it is stated 'Not traceable'. As per the Crime and Occurrence Report (Ex.P-13), the accused persons were not available at the scene of offence, and therefore, they were not traceable for the arrest, and the said Preliminary Report is marked as Ex.P-11. The panchanama relating to Crime No.40/88-89 dated 12.6.1989 is marked as Ex.P-12. In Ex.P12 panchanama also, it is clearly stated that the Excise Officials found 1 kg pack of chloral hydrate in the house of Burra Narsimlu and the said house is used by Yella Goud of Muslapur for preparing the toddy and the accused persons are not present and nobody came forward to claim the property.
3. It is the version of PW-1 that on the next day, i.e. on 13.6.1989, the AO sent for PW-1 through Excise Constable (DW-2), and when PW-1 went to the AO, he informed him about the recovery of chloral hydrate from the cattle shed behind the house of PW-1 and he will book a case against him and he will be implicated, as he was not paying the monthly 'mamools' (bribe) to him. Thereupon, PW-1 requested him not to book a case against him, for which, the AO demanded a bribe of Rs.5,000/-; and when PW-1 expressed his inability to pay, AO reduced it to Rs.4,000/-. PW-1 agreed to pay the demanded amount of Rs.4,000/- for not implicating him in the said crime and went to the house, collected Rs.2,000/- and paid the same to the AO on 13.6.1989 itself; and the AO directed to pay the balance amount of Rs.2,000/- on 19.6.1989.
4. As PW-1 was not willing to pay the balance amount to the AO, he approached the DSP, ACB (PW-6) on 16.6.1989 and gave him a complaint (Ex.P-1) stating that for not giving the usual monthly 'mamools' (bribe), the AO wanted to implicate him in the chloral hydrate case registered on 12.6.1989 and demanded him an amount of Rs.5,000/-; and on request, the AO reduced Rs.1,000/-; and as there was no alternative, he was forced to pay a sum of Rs.2,000/- and agreed to pay the balance amount of Rs.2,000/-on 19.6.1989. He further stated that if he pays the amount, no case will be registered against him. As he was unwilling to pay the amount, he gave the Ex.P-1 complaint. On the basis of Ex.P-1complaint, the DSP (PW-6) registered a case in Cr.No.5/ACB-NZB/89 under Sections 7 and 11 and 13(2) read with 13(1)(d) of the Act and issued FIR under Ex.P-15 on the same day, i.e. on 16.6.1989. Then, PW-6 asked PW-1 to come to his office on 19.6.1989 at 10.30 a.m. along with the balance amount of Rs.2,000/- demanded by the A.O. PW-1 went to the ACB Office of PW-6 at 10.30 a.m. on 19.6.1989 along with Rs.2,000/- in hundred rupee denomination of 20 currency notes. Then, PW-6 arranged a trap by requesting the services of PW-3, namely, T.S. Padmarao, Assistant Director of Industries, Sangareddy, and one E. Dasaratha Reddy as mediators; and after taking the currency notes brought by PW-1 and getting the phenolphthalein powder applied to them and getting their numbers noted in Ex.P-6 first mediators report and demonstrating the efficacy of phenolphthalein test to the mediators and PW-1 and keeping the tainted amount in the shirt pocket of PW-1, PW-6 asked PW-1 to go to the house of the A.O. and pay the amount if demanded by the AO.
5. Then, PW-6 along with PWs.1, 3 and another mediator and staff went to the house of the AO at Jogipet. As per the trap plan, PW-1 went into the house and asked for the AO and he was told that the AO went to attend a marriage at Sangareddy and he may come back by 2.30 p.m. At about 2.45 p.m., the AO accompanied by another Excise Sub-Inspector Janardhan Reddy (DW-3) came to the house of the AO in a jeep; and the AO and DW-3 entered into the house. According to PW-1, the AO sat on a cot and DW-3 sat on a chair. At that time one Mallesham, Excise constable (DW-1) came to the house of the AO and handed over him a T.R.O. Form along with a hundred rupee note, which is marked as M.O.10. Then, the AO questioned DW-1 as to why he did not take Rs.200/- towards bribe. DW-1 informed the AO that the person in turn gave only Rs.100/- and promised to pay the balance of Rs.100/- later. The A.O. put his signature on the form and gave it to DW-1. Thereafter, DW-1 went away. In the mean time, Anja Goud (PW-2), a resident of Muslapur village, came to the house of the AO with a view to seek permission to tap toddy from the trees and gave the AO an application form enclosing Ex.P-4 challans for Rs.560/- and Rs.220/- paid in the bank in the names of Anja Goud, Joginath Goud and Rama Goud, who are TFT Members of Muslapur Village. PW-2 also found that PW-1 was also there at the time of giving Ex.P-4 challans to the AO. After receiving Ex.P-4 challans, the AO demanded PW-2 a bribe of Rs.200/-. Then, PW-2 informed that he had only Rs.100/-, for which, the AO refused to sign on the form. However, PW-2 paid the AO an amount of Rs.100/- in two fifty rupees denomination and the said two currency notes are marked as M.O.3. The said amount of Rs.100/- was kept on the cot. Then, the AO signed the form and gave it to PW-2. DW-3 was having a whisky bottle and asked the AO to share it and he poured whisky in two glasses. Immediately, PW-1 entered into the house and stood behind PW-2. On seeing him, the AO asked PW-1 whether PW-1 has seen the news item published in Enadu News Paper. PW-1 stated that he did not see the news item. The AO stated that his case has been published in the news paper, and so saying, he departed the paper cutting to PW-1. While giving paper cutting to PW-1, the AO told him that no case will be booked against him, if he pays the balance amount of Rs.2,000/-. Then, PW-1 gave the currency notes of Rs.2,000/-. The AO counted the said currency notes of Rs.2,000/- marked as M.O.1 and kept them on the cot along with the other cash. PW-1 went out of the house and gave the pre-arranged signal. On receipt of the signal, PW-6 (DSP), PW-3 (mediator) and the staff entered into the room. On seeing them, the AO rushed to the rear side of the house and washed his hands and cleaned his hands with a towel. PW-6 disclosed his identity and got prepared sodium carbonate solution in a glass and asked the AO to dip his fingers into the glass and he did so. The solution turned into pink colour. He collected the towel with which the AO cleaned his hands and sprinkled sodium carbonate solution on it. On some spots, the towel also turned into pink colour. The towel, which was seized, is marked as M.O.9. PW-6 seized the amounts of Rs.2,000/-, Rs.100/- and another Rs.100/- given to the AO by PW-1, DW-1 and PW-2 respectively. PW-3 (mediator) verified the numbers on the notes along with the numbers already noted in Ex.P-6 first mediators report. Then, second mediators report (Ex.P-7) was prepared. PW-3 found the numbers on the notes seized by PW-6 to be tallied with the numbers noted in Ex.P-6. PW-6 seized the amount of Rs.2,200/-, challans, bank receipts, Ex.P-2 paper cutting, Ex.P-9 diary, and Ex.P-13 crime and occurrence report, and summoned the photographer. The photos taken are marked as Ex.P-8. A rough sketch was made, which is marked as Ex.P-10. The second mediators report is marked as Ex.P-7. A copy of the second mediators report was given to the AO and the acknowledgement was received from him. The AO was arrested and released on bail.
6. To prove the case of the prosecution, 7 witnesses were examined as PWs.1 to 7 and Exs.P-1 to P-15 and M.Os.1 to 10 were marked. On behalf of the defence, Dws.1 to 3 were examined and Ex.D-1, a portion of Section 161 Cr.P.C statement of PW-1 was marked.
7. PW-7, K. Laxma Reddy, C.I., A.C.B., examined PWs.1, 2 and others. He stated that the Government issued orders in GO.Ms.No.757, Revenue (Excise.I) Department dated 29.8.1991 (marked as Ex.P-14) for prosecution of the accused under the Act.
8. It is stated in Ex.P-14 that the AO demanded an amount of Rs.5,000/- as gratification other than legal remuneration on 13.6.1989 for dropping the action against PW-1 regarding the seizure of 1 kg. Chloral hydrate from the cattle shed of Burra Narsimloo situated adjacent to the Toddy Shop of Yella Goud, father of Joginath Goud, and after bargaining he reduced it to Rs.4,000/- and accepted Rs.2,000/- as part-payment on the same day i.e. on 13.6.1989 and demanded him to pay the balance of Rs.2,000/- on 19.6.1989; and on 19.6.1989, he was trapped while he was taking the balance amount of Rs.2,000/- as gratification other than legal remuneration.
9. The 164 Cr.P.C. statement of PW-1 recorded by the Munsif Magistrate was marked as Ex.P-3, and the 164 Cr.P.C. statement of PW-2 recorded by the Magistrate was marked as Ex.P-5.
10. The case of PW-1 and PW-6 (DSP, ACB) is that for not implicating PW-1 in the chloral hydrate case registered under Ex.P-13 dated 12.6.1989, the AO called for PW-1 through DW-2 on 13-6-1989 and he demanded him a sum of Rs.5,000/-; and on bargain, he reduced Rs.1,000/-; and an amount of Rs.2,000/- was paid on the same day, i.e. on 13.6.1989, and the remaining amount of Rs.2,000/- was agreed to be paid on 19.6.1989; and as PW-1 was not willing to pay the balance amount to the AO, he made a complaint to the DSP, ACB (PW-6); and the DSP registered a case and agreed to arrange a trap; and accordingly, the trap was arranged on 19.6.1989.
11. After the evidence of prosecution was over, the AO was examined under Section 313 Cr.P.C. so as to enable him to explain the incriminating circumstances appearing against him, for which, he pleaded not guilty. He denied various circumstances put to him. He stated that PWs.1 and 2 belong to the same group of persons doing toddy business under TFT Scheme; and PW-2 paid the TFT rent on behalf of PW-1 also and he gave the challans to the AO for getting the permission for tapping the trees; and the AO signed the same to issue tapping forms, and he suspected that the challan forms might have been tainted with phenolphthalein powder, which were touched by the AO; and admittedly, the said challan forms were not tested to know as to whether they are tainted with phenolphthalein powder or not. He further stated that he has not done any act to favour or disfavour PW-1 either to implicate or not to implicate him, as he has already shown the names of the accused in Ex.P-13 Crime and Occurrence Report with regard to the seizure of 1 kg. chloral hydrate. In Ex.P-13 the names of Burra Narsimlu and Yella Goud were also shown as accused. He further stated that PW-1 came to him on 19.6.1989 at about 3.00 p.m. and caught hold of his hands requesting him not to prosecute. PW-1 himself gave a paper cutting to the AO, and it is also not ruled out whether the said paper cutting was tainted with phenolphthalein powder, which was touched by the AO. He stated that when he went inside and washed his hands, in the meanwhile, ACB Officials came; and by the time he returned, he found some amount on the cot; and when ACB Officials asked about the money, he told them that it does not belong to him and he was not aware as to how the said amount came on the cot. He neither demanded nor accepted the amount. The DSP, without listening to him, seized the amount and asked him to explain the same in the Court. He suspected that the challan forms are also tainted with the phenolphthalein powder and got handed over to AO and PW-1 might have planned this idea so that no charge-sheet is filed against PW-1 or his father.
12. In support of his version, the AO examined 3 witnesses DWs.1 to 3.
13. DW-1 is Mallesham, Head Constable, Excise. He stated that he came to the house of the AO to take tree forms and paid Rs.100/- which he had taken as a hand loan in the previous month.
14. DW-2 Rattaiah, an Excise Constable, also did not support the case of the prosecution and also denied the calling of PW-1 on 13.6.1989.
15. DW-3 is an Excise Sub-Inspector admittedly sitting in the house of the AO at the time of the trap. He stated that DW-1 came and told the AO that he brought the amount of Rs.100/-, which he took as loan, and paid. Two to three minutes thereafter, two persons came there; and the AO asked them as to why and for what purpose they came; and they told that they brought tree tax forms with challans. Then, the A.O. verified them and endorsed to issue permission and signed on it. They gave their names as Joginath Goud and Anja Goud (PWs.1 and 2). Joginath Goud then took out a paper cutting and told the AO that his father was implicated in a case where chloral hydrate was seized in his village at Muslapur. Then, Joginath Goud caught hold of the hands of the AO and requested to help in that case. Then, the AO told him that he cannot do any thing in the matter, as it relates to the case initiated by the Assistant Excise Superintendent and Flying Squad Sub-Inspector; and if any help could be made, it was they who could help him. He also told him that the entire file was submitted to the Court and he was not having any papers with him. Then, he requested the AO and stood there. They stood by the side of the cot, and the AO asked them to go away. Then, they went away. About 40 seconds thereafter, about 4 to 5 persons entered into the room and disclosed and introduced themselves as ACB people and questioned as to who the accused was. When AO identified himself, they questioned as to the bribe amount accepted from PW-1. Then, the AO explained as to what all happened. ACB asked the AO to come near the cot and pick up cash lying on the cot. They forcibly got the cash picked up through the AO. Earlier, when ACB showed the cash lying on the cot, the AO pleaded ignorance. PWs.1 and 2, while leaving, must have left the amount on the cot. Then, the ACB got two glasses and prepared some solution and asked the AO to dip his fingers into it. DSP, ACB asked him (DW-3) as to the reason why he was there. He narrated all the facts to him. DSP told him that he need not be present there asked him to go away.
16. On this evidence available on record, the Court below held that the evidence of DWs.1 to 3 is disbelievable as against the evidence of the prosecution witnesses; and the AO is not entitled for any benefit of doubt; and there is no infirmity whatsoever nor any doubt in the story of the prosecution with regard to the acceptance of the bribe by the AO from PW-1; and the accused was accordingly found guilty and he was convicted.
17. The question that arises for consideration in this appeal is whether the AO demanded the payment of Rs.5,000/- and reduced an amount of Rs.1,000/- for not implicating PW-1 in the criminal case registered under Ex.P-13; and whether the acceptance of the amount of Rs.2,000/- on 13.6.1989 and the balance amount of Rs.2,000/- on 19.6.1989 in the trap towards illegal gratification, are proved? The question that also arises for consideration in this appeal is as to whether the AO obtained the amount of Rs.2,000/- as an illegal gratification to do an official favour; and whether the prosecution proved the demand and acceptance of the amount of Rs.4,000/- by the AO beyond all reasonable doubt?
18. Admittedly, the learned Judge himself stated in the judgment that so far as the payment of Rs.2,000/- on 13.6.1989 is concerned, there is no evidence whatsoever. Only with regard to the trap case while receiving the balance amount of Rs.2,000/- on 19.6.1989 is held to be proved and the accused is found guilty. It is the case of the prosecution that there was a demand and acceptance of an amount of Rs.4,000/-, and out of which, an amount of Rs.2,000/- was paid by PW-1 on 13.6.1989; and the AO received the said amount of Rs.2,000/- on 13.6.1989; and the balance amount of Rs.2,000/- was paid on 19.5.1989, which was trapped. Admittedly, the first payment of Rs.2,000/- is not proved as rightly held by the Trial Court itself, as there is no evidence whatsoever to prove the payment of Rs.2,000/-. The learned Public Prosecutor appearing for the State argued that the Trial Court illegally gave a finding that there is no evidence with regard to the payment of Rs.2,000/- on 13.6.1989. Except the evidence of PW-1, there is no other corroborative evidence and he has not proved the payment of Rs.2,000/- by any circumstance and corroborative evidence. He has not stated from where did he get and give the amount and in whose presence he gave the amount to the AO; and in the absence of any corroborative evidence, it cannot be said that PW-1 paid the amount of Rs.2,000/- on 13.6.1989 and the AO accepted the same as illegal gratification. Therefore, the finding of the Trial Court that the demand of Rs.2,000/- on 13.6.1989 is not proved, cannot be found fault with.
19. So far as the payment of the balance amount of Rs.2,000/- on 19.6.1989 is concerned, there is any amount doubt that creates, as the allegation of the prosecution is that the AO sent for PW-1 on 13.6.1989 and demanded an amount of Rs.5,000/-; and on bargaining, he has agreed for the payment of Rs.4,000/- for not implicating PW-1 in the criminal case (Ex.P-13). The story sought to be built up by the prosecution that the AO purposely not shown the name of the accused person in Ex.P-11 with a view to help the accused or to implicate the accused by showing that the accused person is not traceable. Ex.P-11 is not at all a document to be filed in the Court. The documents sought to be filed in the Criminal Court are only panchanama and crime and offence report. In the panchanama, the names of the persons from whose house the chloral hydrate was recovered and who are the persons making toddy in the said house are clearly stated. The house belonged to Burra Narsimlu, who was shown as A-1; and the said house was used by Yella Goud, who was shown as A-2. Once their names have been shown in the Panchanama and Crime & Occurrence Report, the question of adding and deleting any other names does not arise; unless a thorough investigation is made and there is something else to implicate PW-1. The question of implicating PW-1 does not arise, as he is a TFT Member along with PW-2 and another. The challan was paid on behalf of PW-1 and another for getting the permission of tree tapping. PW-2 went to the house of the AO and gave the challans. Therefore, it cannot be said that PW-2 is not aware of the trap. The fact that PW-2 went there for obtaining tree-tapping permission on behalf of PW-2 also clearly shows that he also knew about the trap being made at the instance of PW-1. Therefore, it cannot be said that PW-2 is independent that of PW-1 and does not know any thing. Thus, it can be said that PW-2 is also an interested person along with PW-1 to implicate the AO in the trap case.
21. Admittedly, DW-3, an Excise Sub-Inspector, was present at the time of trap and his name was also mentioned in the second mediators report (Ex.P.7) and it is stated in Ex.P.7 that he was already there at the house of AO with a view to take lunch and he witnessed the accepting of Rs.2,000/- and Rs.100/- from the complainant and Anja Goud. When that is the case, the prosecution has not cited B. Janardhan Reddy, Excise Sub-Inspector as one of the witnesses of the prosecution. His statement has also not been recorded either under Section 164 or Section 161 Cr.P.C. Janardhan Reddy denied the case of the prosecution and he has explained in a natural way. The independent Government witness, i.e. PW-6 and PW-3 admitted that they have not tested Ex.P-4 papers and Ex.P-2 paper cutting with sodium carbonate solution to know as to whether phenolphthalein powder was mixed with those papers. The explanation of the AO is that PW-1 caught hold of his hands requesting him to help them to do some favour in regard to his father, who is an accused in the criminal case (Ex.P-13); and the further explanation is that Exs.P-2 and P-4 papers were admittedly touched by the AO; and it is not known whether the AO touched the phenolphthalein powder with his hands and whether Exs.P-2 and P-4 papers were also mixed with Phenolphthalein powder, as admittedly those Exs.P-2 and P-4 papers have not been tested and there is no evidence to show that PW-1 has not touched the phenolphthalein powder with his hands and he has not touched the hands of the AO. If there is any tainting of Exs.P-2 and P-4 papers, which are admittedly touched by the AO, there is every likelihood of positive report of their turning into pink colour, when his fingers are dipped in the sodium carbonate solution---These things create a serious doubt in the story of the prosecution with regard to the acceptance of bribe by the AO on 19.6.1989. Even other wise, it is the story of the prosecution that there is a demand of Rs.4,000/- and the first part of Rs.2,000/- has been paid on 13.6.1989 and the second part on 19.6.1989. Admittedly, the payment of Rs.2,000/- on 13.6.1989 is not proved as held by the Trial Court.
22. Sri T. Bali Reddy, the learned Senior Counsel appearing for the appellant submitted that the story of the prosecution is that an amount of Rs.4,000/- has been demanded and accepted; and the first vital part of the prosecution story that the payment of Rs.2,000/- said to have been accepted by the AO is not proved; and therefore, when the part of the story is not accepted, the remaining trap part of the case also shall not be accepted. In support of his contention, he cited a decision of the Supreme Court in HARI DEV vs. STATE1. The facts of the said case are that the complainant requested the accused officer to get his application passed, for which, the accused officer demanded Rs.100/-; and the accused officer took Rs.20/- from the complainant; and it was agreed that the balance of Rs.80/- would be paid later after the permission was granted. The amount of Rs.20/- was paid on 28.1.1969 and the balance amount of Rs.80/- was sought to be paid on 26.2.1969 and the ACB arranged a trap. The accused officer accepted the amount of Rs.70/-; and while he was counting the notes, the trap was made. In the said context, the Apex Court held that the payment of Rs.20/- on 28.1.1969 and the payment of Rs.70/- on 26.2.1969 was one integral part and the genesis; and according to the prosecution, the genesis of the case is that there was a demand to pay Rs.100/- and an amount of Rs.20/- was paid in advance. In the said case also, the payment of Rs.20/- in advance was not proved, and only when subsequently the amount of Rs.70/- was given, the trap case was proved. The prosecution case was one integrated story, which the trial Court accepted. But the High Court in the said case did not accept the 1st part of the story with regard to the payment of Rs.20/-, which was said to be the vital part of the story. It is, therefore, difficult to see how the other part, which did not stand by itself, could be accepted. In that case, it was not the case of the prosecution that only Rs.70/- recovered from the accused officer was the amount that the appellant had asked for from the complainant. Though the trap was proved, the Apex Court held that when the first part, which is vital part of the prosecution case, has not been proved, the second part cannot be accepted.
23. In the instant case also, the case of the prosecution is that there was a demand and an amount of Rs.2,000/- was paid on 13.6.1989, which has not at all been proved; and with regard to the trap conducted by the prosecution while the AO was receiving Rs.2,000/- from PW-1 on 19.6.1989 also, even assuming that the trap is proved beyond all reasonable doubt, the case of the prosecution cannot be upheld in view of the aforesaid judgment of the Supreme Court. Even otherwise, as already stated, the trap was not proved beyond all reasonable doubt in view of the evidence of DW-3 and the explanation of PW-1. PWs.1 and 2 are interested in each other, and therefore, there is every likelihood of tainting the Exs.P-2 and P-4 papers and particularly when the said papers were not tested by the ACB Officials, it is not ruled out the said papers have been tainted with phenolphthalein powder. The case of the prosecution appears to be unnatural. They have projected only interested persons PWs.1 and 2, who were doing toddy business particularly under TFT Scheme. According to the prosecution case, the cot was in front and thereafter the AO and DW-3 were sitting on chairs and drinking liquor. DW-3 stated that the cot was behind them and they were sitting on two chairs and taking liquor just before taking lunch. It is also not believable whether the AO has taken the money in front of another Excise Officer openly in the presence of DW-2 and other Excise Constable and PWs.1 and 2. Even if he has received, he could not have kept it openly on the cot. The story of the prosecution that there was a demand of Rs.4,000/-, out of which, an amount of Rs.2,000/- was paid on 13.6.1989 and said to have been accepted by the AO admittedly has not been proved; and even the second part of taking the illegal gratification, i.e. the bribe amount of Rs.2,000/-, for helping PW-1 for not implicating him in the criminal case (Ex.P-13) is also not fully proved beyond all reasonable doubt, and there is some force in the defence of the AO in explaining that tainting of challan forms (Ex.P-4) and paper cutting (Ex.P-2) is not ruled out; and therefore, in the absence of any full truthful case of taking gratification other than the legal remuneration by the AO, the question of drawing the legal presumption under Section 20 of the Act does not arise.
24. In view of the unnatural story built up by the prosecution, it is difficult to uphold the judgment under appeal. Accordingly, I hold that the prosecution has not proved the guilt of the accused and the accused is entitled for the benefit of doubt; and that the prosecution has not proved the case beyond all reasonable doubt; and there is any amount of infirmities in the story of the prosecution with regard to the acceptance of bribe by the AO from PW-1.
25. In the result, the criminal appeal is allowed and the judgment under appeal is set aside. Consequently, the conviction and sentence imposed against the appellant-accused are also set aside and the appellant is acquitted. His bail bonds shall stand cancelled. The fine, if any paid, shall be refunded to the appellant.