Dr. M. Shankar vs State Of A.P.
2022 Latest Caselaw 1131 Tel

              THE HON'BLE Dr. JUSTICE G. RADHA RANI

                   CRIMINAL APPEAL No.1405 of 2007


JUDGMENT:

This Criminal Appeal is preferred by the appellant - sole accused

aggrieved by the conviction and sentence passed by the Principal Special Judge

for SPE & ACB Cases, Hyderabad vide Judgment dated 06.10.2007 in CC

No.33 of 2002, wherein the appellant was convicted and sentenced to undergo

rigorous imprisonment for a period of six months for the offence under Section 7

of the Prevention of Corruption Act, 1988, (for short 'the Act') and to pay fine

of Rs.500/-, in default to pay the fine amount, to undergo simple imprisonment

for one month and further sentenced to undergo rigorous imprisonment for a

period of one year for the offence under Section 13(1)(d) read with Section

13(2) of the Act and to pay fine of Rs.500/-, in default of payment of fine

amount to undergo simple imprisonment for one month and both the sentences

were directed to run concurrently.

2. The brief facts that are necessary for disposal of the appeal are that the

appellant - Accused Officer (hereinafter referred to as 'AO') was working as a

Medical Officer at Primary Health Centre (PHC), Nizamsagar, Nizamabad

District at the time of registration of the case and the complainant worked on

deputation in the same PHC as Multi Purpose Health Assistant (Female). Her 2 Dr.GRR,J Crla.No.1405 of 2007

original place of posting was Narva Sub-Centre, falling under PHC, Nizamsagar.

Since there was vacancy of the said post in PHC, Nizamsagar, she was deputed

to work as per the orders of the District Medical and Health Officer, Nizamabad

District dated 01.07.2000. While she was thus working on deputation in PHC,

Nizamsagar under the control of the AO, it was alleged that the complainant

requested the AO for giving regular posting to Nizamsagar and the appellant

demanded an amount of Rs.8,000/- as bribe for giving regular posting to

Nizamsagar. Accordingly, she paid Rs.8,000/- to the AO, but the AO issued

orders of posting to one Kum.Farhana as MPHA (F), Nizamsagar. Then the

complainant requested the AO to return the amount of Rs.8,000/-. The AO got

angry and directed her to report at Narva or opt for voluntary retirement. At the

instance of the AO, she applied for voluntary retirement. Later, she changed her

mind and requested the AO not to forward the application to DM & HO,

Nizamabad. Then, the AO demanded Rs.5,000/- from her as bribe. Unwilling

to pay the demanded bribe amount to the AO, she filed a petition before the

DSP, ACB, on 02.07.2001 against the AO. The DSP, ACB, Nizamabad

registered a case in Crime No.5/ACB-NZB/2001 under Section 7 of the Act

against the AO on 03.07.2001 and during the course of investigation, secured the

services of one Sri Ashok Purohit - the Assistant Director, Agriculture, Office of

the JDA Nizamabad and Sri Khaleemullah - Sub-Registrar, Nizamabad District, 3 Dr.GRR,J Crla.No.1405 of 2007

as mediators and after observing necessary formalities laid the trap on

03.07.2001 against the AO. The phenolphthalein test conducted over both the

hands of AO yielded positive result and the tainted amount was seized from the

possession of the AO, who produced the same by taking out from his left side

pant pocket. The portion of the left side pant pocket also got subjected to the

chemical test and it also yielded positive result. The Investigating officer

examined and recorded the statements of the employees working at PHC,

Nizamsagar and got recorded the 164 Cr.P.C. statement of the complainant by

the Judicial Magistrate of First Class cum Principal Junior Civil Judge,

Nizamabad. After obtaining sanction orders from the Principal Secretary to the

Government, Health, Medial and Family Welfare Department of Government of

Andhra Pradesh, being competent authority to remove the AO from service, the

Investigating Officer i.e. the Inspector of Police of ACB, Nizamabad Range,

filed charge sheet against the AO for the offences under Sections 7 and 13(2)

read with 13(1)(d) of the Act. The Principal Special Judge for SPE & ACB

Cases, City Civil Court, Hyderabad had taken cognizance of the above offences

and after supplying copies of the documents to the AO and on hearing both

sides, framed the charges as follows:

1. That, you being a public servant employed as Medical Officer, Primary Health Centre, Nizamsagar on 3-7-2001 as per your earlier demand you have demanded and accepted bribe of Rs.5000/- from one 4 Dr.GRR,J Crla.No.1405 of 2007

Smt.P.Kanakaratnam w/o.V.J.Wilson, M.P.H.A. (F), Nizamasagar, Nizamabad Dist. as motive or reward for doing official favour ie, for not forwarding her voluntary retirement application to the DM & HO and, thereby you have committed offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance.

2. That, you being a public servant as mentioned in charge No.1 on 03.07.2001 by corrupt or illegal means or otherwise abusing your position as public servant obtained for yourself a pecuniary advantage to an extent of Rs.5,000/- from one Smt. P.Kanakaratnam w/o. V.J.Wilson, M.P.H.A. (F), Nizamsagar, Nizamabad Dist., as illegal gratification other than legal remuneration for doing official favoir ie, for not forwarding her voluntary retirement application to the DM & HO and thereby you have committed offence specified U/s.13(1)(d) of the Prevention of Corruption Act, 1988 punishable U/s.13(2) of the said Act and within my cognizance.

3. The AO pleaded not guilty. The prosecution got examined PWs.1 to 7

and got marked Exs.P.1 to P.15 and MOs.1 to 8 on its behalf. The AO got

examined DWs.1 to 4 and got marked Ex.D1, a portion of the 161 Cr.P.C.

statement of PW.1 on his behalf. A document was marked as Ex.X-1 by the

Court. After considering the oral and documentary evidence on record and the

material objects produced by both the parties, the learned Principal Special

Judge found the appellant - AO guilty for the above charges and convicted and

sentenced him as stated above.

                                          5                                        Dr.GRR,J
                                                                       Crla.No.1405 of 2007

4. Aggrieved by the said conviction and sentence, the AO preferred this

appeal contending that the findings of the court below were vitiated by errors

apparent on the face of the record and due to mis-reading of evidence, resulted

in erroneous and unsustainable findings. The court below had taken a one sided

and biased approach against the appellant only to favour the prosecution

ignoring the entire defence resulting in gross miscarriage of justice. The court

below erred in believing the solitary and uncorroborated evidence of PW.1

which was tainted by ill-motive. The court rejected the plea of the appellant that

PW.1 paid the amount to him towards clearance of hand loan which was taken

by her earlier and falsely implicated him making it appear that she had paid

bribe. There were discrepancies and contradictions in the evidence of PW.1.

The evidence of PWs.3 and 4 and the evidence of the defence witnesses were

totally ignored by the court. The court placed implicit reliance on the evidence

of PWs.2 and 5, who were interested in the success of the trap. The court erred

in not considering the motive of PW.1 to involve the appellant inspite of

clinching evidence beyond reasonable doubt. The court failed to see that the

complainant and the prosecution did not come forward with clean hands and

deliberately suppressed the facts and truth. The AO not only established his

innocence by preponderance of probabilities. The court should have acquitted

the AO. It erred in misapplying the decisions referred by it and failed to consider 6 Dr.GRR,J Crla.No.1405 of 2007

any of the decisions cited by the defence. The court erred in treating the

evidence of the complainant and mediators as substantive evidence ignoring the

evidence of eye-witnesses on record and prayed to allow the appeal.

5. Heard the learned counsel for the appellant - AO and the learned

Special Public Prosecutor for ACB cases.

6. Learned counsel for the appellant - AO submitted that there was no

official favour pending with the AO. It was the DM & HO, who could transfer

the complainant or accept/refuse the voluntary retirement application of the

complainant. The evidence of PW.1 would suffer with several discrepancies.

PW.1 had not stated in her complaint that the AO demanded bribe for not

forwarding her voluntary retirement application to the Superiors. Her testimony

was full of contradictions, omissions, interested and self serving as she held a

grouse against the AO and therefore, required corroboration. There was no

corroboration to the evidence of PW.1, as the mediator, who was directed to

follow her as a shadow witness stated that he remained at the entrance door of

the room of the AO in the Primary Health Centre, whereas PW.1 entered inside

the room of AO. The evidence of PWs.2 to 4 and DWs.1 to 4 would prove that

there existed a swing door to the entrance of the room of the AO which would

automatically close and block the hearing of PW.2 as such, the evidence of 7 Dr.GRR,J Crla.No.1405 of 2007

PW.1 with regard to demand by AO was not corroborated by the evidence of

PW.2 and hence not proved. Mere recovery of tainted money was not enough to

draw a presumption under Section 20 of the Act. The court was required to

consider the explanation offered by the AO. All the witnesses, PWs 3, 4 and

DWs.1 to 4 had clearly stated that the complainant had taken loan of Rs.5,000/-

from the AO and returned it on the said date of trap, which the appellant

accepted and kept in his pant pocket. At that juncture, the ACB officials entered

in his chambers and recovered that money after conducting the tests. The

statement of the AO as stated by him was not recorded in the post-trap

proceedings. The AO was forced to be half naked and was taken away from his

room to the room of the Senior Assistant and was kept there till the proceedings

were over. The Court committed an error in observing that the AO had not

substantially stated during the post trap proceedings about the complainant

taking any loan from him, as the ACB officials had not recorded the same as

evident from the statements of the above witnesses. The court also erred in

observing that AO was kept in some room for some time as the words "for

some time" was not spoken to by PW.2. He further submitted that the original

application for voluntary retirement applied by PW.1 was stuck up in the case

and she continued in service and was promoted as Mandal Supervisor by the

date of her evidence and it was the AO who was dismissed from the service 8 Dr.GRR,J Crla.No.1405 of 2007

which would show that she had achieved her motive of entangling the AO in a

criminal case and prayed to allow the appeal by setting aside the conviction and

sentence recorded against the AO by the trial court.

7. The Special Public Prosecutor for ACB supported the judgment of the

trial court and submitted that the trial court rightly assessed and appreciated the

evidence of the witnesses in a proper perspective and recorded the conviction

and sentence which would not need any interference by this Court and prayed to

dismiss the appeal.

8. Now the point for consideration is whether the prosecution proved its

case against the appellant - AO for the offences under Sections 7 and 13 (1) (d)

read with 13 (2) of the Act beyond reasonable doubt and whether the judgment

of the trial court is correct, legal and proper?

9. Perused the evidence of the witnesses in the light of the contentions

raised by both the counsel.

10.1. The complainant was examined as PW.1. She stated in her evidence

that she worked as Multi Purpose Health Assistant (F) at Narva Sub Centre in

Nizamsagar Mandal of Nizamabad District and since one of the Nurse at PHC,

Nizamsagar was transferred, she was deputed in her place at PHC, Nizamsagar 9 Dr.GRR,J Crla.No.1405 of 2007

during the year 2001. The AO was working as Government Medical Officer at

PHC, Nizamsagar during the said period she requested him to give a regular

posting to her at PHC, Nizamsagar. For that, the AO demanded Rs.8,000/-.

Accordingly, she paid Rs.8,000/- to the AO in the month of April 2001. Inspite

of paying the said amount to the AO, he did not get her posted in the regular post

at PHC, Nizamsagar. In the month of May, 2001, one Farhana was freshly

appointed and posted at PHC, Nizamasagaras MPHA (F). Then, she asked the

AO as to why he did not give regular posting to her. The AO asked her to go

back to Narva centre. Then she asked the AO to return back the said amount of

Rs.8,000/- paid by her. But, he did not pay back the said amount. Meanwhile,

the Senior Assistant brought some papers relating to her voluntary retirement

and obtained her signatures therein by force. Subsequently, the appellant asked

Rs.5,000/- to see that her voluntary retirement was cancelled. The AO also

stated to her that in case, the said amount of Rs.5,000/- was not paid to him, she

would be receiving voluntary retirement orders and had to leave her service.

Since she was not willing to pay any such amount to AO, she went to the ACB

office, Nizamabad on 02.07.2001 and submitted a written complaint to DSP.

10.2. She further stated about the DSP, ACB, instructing her to come

with the proposed bribe amount of Rs.5,000/- on 03.07.2001 at about 6.00 AM

and she attending the office of the DSP, ACB, and the procedure employed and 10 Dr.GRR,J Crla.No.1405 of 2007

handing over the tainted currency notes to her by keeping them in a plastic carry

bag and instructing her not to pay the said amount to AO except on his further

demand and also instructing her to relay a signal by wiping her face with a

kerchief, in case the AO demanded and accepted the tainted currency from her.

She further stated that one of the mediators, by name, Ashok Purohit was asked

to accompany her and to watch the events between her and AO and about

drafting the pre-trap proceedings.

10.2. With regard to the occurrence of events during the trap, she stated

that at about 8.00 AM on 03.07.2001, she along with mediators, DSP and other

trap party members proceeded in a car from the office of DSP and reached

Nizamsagar by 12.30 hours. She along with the mediator Ashok Purohit

proceeded to PHC, Nizamsagar and found AO in his room. She approached the

AO whereas, LW.2 - Ashok Purohit remained at the entrance door of the room

of AO. She offered namaskarams to AO. On seeing her, he asked whether she

brought the demanded amount of Rs.5,000/- on which she placed the said cover

in his presence by opening it and then AO picked up the said tainted currency

notes from carry bag, counted the said amount by using his both hands and

thereafter kept the said tainted amount in his left side wearing pant pocket and

assured her that he would attend to her work regarding cancellation of her

voluntary retirement. Then, she came out of the room of AO and relayed the 11 Dr.GRR,J Crla.No.1405 of 2007

pre-arranged signal to the trap party. After receiving the signal, the trap party

led by the DSP rushed into the room of AO. After one and half hours or two

hours, she was called inside the room of AO and was asked to depose her

version. The same was incorporated in the proceedings. Subsequently, her

statement was recorded in the office of the DSP, ACB, Nizamabad on

08.07.2001. The same was incorporated in the proceedings. Thereafter, she was

summoned to attend before the Magistrate at Nizamabad on 21.07.2001 and her

164 Cr.P.C. statement was recorded by the Magistrate.

10.3. In her cross-examination by the learned defence counsel, it was

elicited that DM & HO was the competent authority to give her regular posting

to PHC, Nizamsagar and she did not make any application to DM & HO during

the tenure of AO for her regular posting at PHC, Nizamsagar, she did not make

any application to DM & HO or Dy.DM & HO for cancellation of her relieving

orders to Narva, to show that the AO had no role in the said matters, which was

to her knowledge. Some contradictions were elicited that in the complaint

marked as Ex.P.1, she stated about applying leave for five days and before

expiry of leave, AO called her and forcibly obtained her signatures on voluntary

retirement forms but the voluntary retirement application marked as Ex.P.2 was

dated 22.05.2001 which was prior in time than her leave applications dated

11.06.2001 and 28.06.2001, marked under Ex.P.9, to prove that the statement 12 Dr.GRR,J Crla.No.1405 of 2007

given by PW.1 that AO called her before expiry of leave and obtained voluntary

retirement application by force was false. It was also elicited that in her chief

examination, she stated about one Senior Assistant obtaining her signatures on

voluntary retirement forms by force but she did not refer the name of AO, the

name of the Senior Assistant who obtained her signatures by force was on

Osman, she did not complain either to DM & HO or Dy.DM & HO that the

Senior Assistant or AO obtained her signatures on voluntary retirement forms by

force and had not submitted any application to them not to act upon her

voluntary retirement forms.

10.4. It was also elicited that she was having a mentally derailed

daughter, and her son who was studying in school and her husband was an

unemployee and they were all dependent on her and her earnings, in her leave

application Ex.P.9 she mentioned that she was suffering from ill health and joint

pains. It was suggested to her that she was financially weak and had no capacity

to pay such amounts of Rs.8,000/- and Rs.5,000/- as bribe and that she borrowed

Rs.5,000/- from the AO to meet her medical expenses and the expenses of her

daughter for her treatment at Hyderabad, which was denied by her. She also

denied the suggestion given by the learned defence counsel that the appellant

asked her to repay Rs.5,000/- to him in the presence of staff members on several 13 Dr.GRR,J Crla.No.1405 of 2007

occasions saying that after voluntary retirement she would not be available to

him.

10.5. A portion of her 161 statement, wherein it was stated that she tried

to keep the tainted amount in her jacket and as it was not possible, kept the same

in a plastic carry bag, was marked as Ex.D-1. How the said omission is useful to

the defence is not known. She denied that there was a spring door to the room of

the AO, and that on the day of trap she sat for some time in the staffroom and

informed all the staff members who were present there that she was repaying

Rs.5,000/- to the AO. It was also elicited that she had grouse against the AO for

posting Farhana at PHC, Nizamsagar pending her request and for relieving her

from the said place, but denied that on account of the said grouse, and as the AO

demanded to repay the loan of Rs.5,000/- in the presence of several staff

members on several occasions, she foisted a false case against the AO and

falsely implicated him in the case.

11. Learned counsel for the appellant - AO relied upon the judgment of

the Hon'ble Apex Court in

State through CBI v. Anup Kumar Srivastava1,

Krishan Chander v. State of Delhi2,

2017 (3) ALT (Cri) 56 (SC)

2016 (3) SCC 108 14 Dr.GRR,J Crla.No.1405 of 2007

C.M. Sharma v. State of AP3,

Piara Singh v. State of Himachal Pradesh4,

B. Jayaraj v. State of A.P.5,

P.Satyanarayana Murthy v. District Inspector of Police, State of A.P.6,

N. Sukanya v. State of Andhra Pradesh7,

M.R. Purshotham v. State of Karnataka8

and of the judgments of the High Court of Andhra Pradesh in

Sanga Reddy Ananda Reddy v. State of A.P., rep. by its District Inspector of Police9,

The State, represented by Inspector of Police ACB Anantapur v. B. Chandrashekhar10

on the aspect that the proof of demand of an illegal gratification is the gravamen

of the offence under Section 7 and Section 13 (1) (d) (i) & (ii) of the Prevention

of Corruption Act. In B. Chandrashekhar's case (10 supra) it was held that:

"20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as 13(1)(d)(i) and (ii) of the 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

2012 (2) ALT (Cri) 147 (SC)

2014 (1) ALT (Cri) 4 (SC)

(2014) 12 SCC 55

(2015) 10 SCC 152

2016 (1) SCC 713

Criminal Appeal No.1578 of 2011

2011 (2) ALT (Cri) 217 AP

Criminal Appeal No.1207 of 2006 15 Dr.GRR,J Crla.No.1405 of 2007

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 and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

21. 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, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act."

12. Learned counsel for the appellant also relied on the decision of the

Hon'ble Supreme Court in Mukhtiar Singh v. State of Punjab11 on the aspect

that:

"The complainant as an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. Mere recovery of currency notes itself does not constitute the offence unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe for the court to draw presumption under Section 20 of the Act."

     2017 (1) ALT 27 (DN) (SC)
                                                 16                                             Dr.GRR,J
                                                                                    Crla.No.1405 of 2007

13. He also relied upon the judgment of the High Court of Telangana in

B. Suresh Babu v. State of A.P., rep. by Inspector of Police, CBI12 on the

aspect that:

"when a case rests upon the evidence of a solitary witness, the law is well settled that it must be unimpeachable, true, trustworthy, free from doubt and must be put in the category of 'wholly reliable'. When the evidence of witness is neither wholly reliable nor wholly unreliable, then such evidence requires corroboration."

But, in the present case, there is nothing on record to consider that the

complainant - PW.1 is an interested and partisan witness. She clearly stated

about the demand and voluntary acceptance of illegal gratification by the AO

knowing it to be bribe in her evidence. The circumstances of the hands of the

AO turning pink and his pant pocket also testing positive would prove that the

AO knowing fully well that it was an illegal gratification received the same and

kept it in his pant pocket. The twin requirements of demand and acceptance of

illegal gratification are proved in the case on hand. In almost all the above cases

relied by the learned counsel for the appellant, the complainant turned hostile

and as such, the Hon'ble Apex Court held that both the demand an acceptance

are sine qua non to prove the offences under Sections 7 and 13 (1) (d) of the PC

Act and mere recovery of money itself is not sufficient to draw a presumption

under Section 20 of the Act.

     2010 (1) ALT (Cri) 121 AP
                                           17                                       Dr.GRR,J
                                                                        Crla.No.1405 of 2007

14. He relied upon the judgment of the High Court of Orissa in

Debananda Das v. State of Orissa13 on the aspect that the complainant being

an educated and a journalist could have duly brought to the notice of higher

authorities regarding the illegal demand made by the accused despite their

instructions to provide telephone connection. But, there was no such complaint

made before the departmental authorities like the SDO (PW.1) or JTO. As such,

the complainant was interested to see the success of the prosecution case as he

bore grudge against the accused and it was a crucial factor and was the reason

for concoction of a false story using the excuse of repayment of the loan as a

means of reaching the accused on the vital day. Therefore, it would be unsafe to

accept the evidence of the complainant without independent and sufficient

corroboration on material aspects.

15. Just because the complainant stated that she had a grouse against the

AO for posting another woman at PHC, Nizamsagar, pending her request, it

cannot be considered that she had concocted a false story.

16. The mediator and the shadow witness, by name, Ashok Purohit, the

Assistant Director of Agriculture, Nizamabad at the relevant time was examined

as PW.2. PW.2 stated about the pre-trap and post-trap proceedings. About the

occurrence of events at the time of trap, he stated that at about 1:00 PM, he

2012 (1) ALT (Cri) 14 (NRC) 18 Dr.GRR,J Crla.No.1405 of 2007

along with PW.1 went to the room of AO in PHC Nizamsagar, he remained at

the entrance door of the room of AO, whereas PW.1 entered inside the room.

She had discussion with AO for about two or three minutes. Thereafter, she

picked up tainted amount from the carry bag and handed over the same to AO,

who received the said amount with his right hand, counted the amount by using

his both hands and thereafter kept the said tainted amount in his left side wearing

pant pocket and that he witnessed the said incident. He stated that thereafter

PW.1 came and relayed the pre arranged signal to the trap party. Immediately,

he along with the trap party rushed into the room where AO was sitting.

17. Thus, PW.2 stated that he witnessed the incident of PW.1 handing

over the tainted amount to AO, and AO receiving the same, counting and

keeping it in his left pant pocket. In his cross examination he stated that the

chambers of AO was having single door and it was a spring door. It was

suggested to him that he was sitting with DSP and other mediator in the jeep till

PW.1 relayed pre-arranged signal which was denied by him. PW.2 stated that

when the DSP questioned AO whether he had taken any amount from PW.1, AO

did not give any answer and remained silent. He stated about DSP preparing

sodium carbonate solution in two glass tumblers and asking AO to rinse his both

hand fingers in the solution and when AO did so, the solution turned pink. He

further stated that the DSP again questioned AO, whether he demanded and 19 Dr.GRR,J Crla.No.1405 of 2007

accepted any money and what all AO stated was incorporated in the post trap

proceedings. He stated about AO producing the tainted currency notes from his

left side pant pocket and that they verified the serial numbers of the currency

notes with the serial numbers described in pre trap proceedings, compared and

found them to be tallied and DSP seized the said currency of Rs.5000/- as MO.5

in their presence. He further stated about the DSP subjecting the inner lining of

left side pant pocket of AO to sodium carbonate solution test, by providing

alternate wearing apparel and that the test yielded positive result. He stated

about the DSP securing the presence of one Osman, Pharmacist and seizing the

file pertaining to PW1 marked as Ex. P6 and the attendance register marked as

Ex.P7, the voluntary retirement application of PW.1 dated 22.05.2001 as Ex. P2,

the copy of the same as Ex. P2(a) and the covering letter as Ex. P2(b). He stated

about the DSP calling PW.1 inside, examining her and incorporating the same in

post-trap proceedings, about the DSP drafting the rough sketch of the scene as

Ex.P8 and obtaining his signatures on all the documents. He stated about seizure

of the leave letters dated 11.06.2001, 28.06.2001 pertaining to PW1 marked as

Ex.P9.

18. In his cross examination, it was suggested to him that AO stated to

DSP in his presence that PW.1 paid Rs.5,000/- to him representing that it was

towards the repayment of loan taken by her earlier and the said version of AO 20 Dr.GRR,J Crla.No.1405 of 2007

was not incorporated in the post trap proceedings, which was denied by him. He

admitted that he acted as mediator in three cases, including the present case and

the other two cases were earlier to the present one.

19. Mohd. Osman, the Senior Asst. in PHC Nizamsagar at the relevant

time was examined as PW3. Mohd. Mujubuddin, a Pharmacist in PHC

Nizamsagar was examined as PW.4. Both these witnesses turned hostile and not

supported the case of prosecution. They were cross examined by the Special

Public Prosecutor and they denied stating before the Inspector of Police, ACB,

Nizamabad as in Ex.P12 and P13.

20. During the cross examination of PW.3 by the learned defence

counsel, he stated that on 03.05.2001, PW1 borrowed Rs.5,000/- from AO to

meet the medical expenses in connection with her aliment and of her daughter's

aliment. On 25.05.2001 she applied for voluntary retirement on her own accord.

Neither PW3 nor AO obtained her signatures on voluntary retirement papers by

force, Ex.P2 voluntary retirement application submitted by PW.1 was having

endorsement of AO in green ink, AO dictated a covering letter addressing the

same to DM & HO and enclosed it to Ex.P2. He made entry of dispatch of Ex.P2

and covering letter in the concerned outward register (Ex.X1) for the year 2001,

but did not dispatch the said voluntary retirement application though he made 21 Dr.GRR,J Crla.No.1405 of 2007

such an entry. He stated that PW.1 submitted Ex.P2 application with two extra

copies thereof, with an intention to dispatch it on 26.05.2001, he did not dispatch

the said letter and covering letter. PW.1 approached him on 26.05.2001 and

27.05.2001 and requested him not to dispatch the said voluntary retirement

application and the covering letter and that she would personally take the same

and meet the DM & HO. On 28.05.2001, PW.1 approached him and requested

him to furnish the copies of voluntary retirement application and the covering

letter and he gave the said copies to her and obtained her signature.

21. He further stated that since PW.1 applied for voluntary retirement,

AO asked her to repay the loan of Rs.5000/- taken by her in his presence and

also in the presence of staff members several times and inspite of it, PW.1 did

not repay the said loan to AO till the date of trap. He stated that PW.1 applied

for casual leaves from 12.06.2001 to 16.06.2001 and from 28.06.2001 to

30.06.2001. He stated that the date of trap on 03.07.2001 was a salary payment

day and also staff meeting day at the PHC. On the said date, PW.1 came to the

staff room, talked to all the staff members and from there she went to the

Pharmacist to handover her CL application for that day and from there went to

the chambers of the AO. He stated that before going into the chambers of AO,

PW.1 informed all of them that she was going to repay the said loan to AO,

nobody accompanied her when she went to the chambers of AO. He stated that 22 Dr.GRR,J Crla.No.1405 of 2007

there was only one door that was spring door to the room of AO, which

automatically would close when one entered into the said chambers.

22. Thus, the defence of AO was all stated through this witness. His

evidence that no others accompanied PW.1 into the Chambers of AO to see

whether there was any chance of overhearing the conversation between PW.1

and AO and PW.1 informing them that she was going to repay the loan to AO

had to be weighed to see which party is speaking truth and which party is

speaking false.

23. PW.3 further stated that within a short time of PW.1 coming out from

the chambers of AO, several people rushed into the chambers of AO and AO

stated to the ACB officials loudly that he did not demand and accept any bribe

from PW.1 and PW.1 representing that she was repaying the loan obtained from

him, gave the amount to him. Thereafter, the AO was brought into his room and

retained there itself till the ACB officials left the PHC. He stated that the ACB

officials came to him and took the personal file of PW.1, attendance Register

and other documents, from him.

24. In his further cross-examination by the Special Public Prosecutor, he

stated that he was present when AO gave Rs.5,000/- to PW.1 and it was given

on 03.05.2001 at 11.20 AM at PHC, Nizamsagar. He stated that AO did not 23 Dr.GRR,J Crla.No.1405 of 2007

obtain any document from PW.1 evidencing the said loan. He admitted that the

signature was obtained on Ex.P.10 panchanama but he signed on it without

reading the contents thereof. He also admitted that there was an endorsement on

Ex.P.10 that he read the contents and then signed. He also further admitted that

neither he nor any of the other staff members submitted any representation to

their Superiors or to the Superior Officials of ACB that PW.1 borrowed the said

loan and that the same was repaid on the date of trap and that a false case was

foisted against AO. When he was questioned about whether Ex.P.2, voluntary

retirement application and Ex.P.2(b) were in the attendance register Ex.P.7 or

not when the ACB Inspector took the attendance register from him, he answered

that he did not remember the same. He denied that he retained voluntary

retirement application and covering letter on the instructions of AO.

25. Learned counsel for the appellant relied on the judgment of the High

Court of Andhra Pradesh in State of A.P. represented by Inspector of Police v.

R. Krishnaiah14 on the aspect that when there was no official favour pending

with the respondent on the alleged date of trap and when there is direct or

substantial evidence showing the respondent demanded bribe from PW.1,

alleged recovery of the currency notes or the chemical tests yielding positive

result is of no consequence. He relied upon the judgment of the High Court of

2013 (2) ALT (Cri) 118 AP 24 Dr.GRR,J Crla.No.1405 of 2007

Andhra Pradesh in State, represented by the Inspector of Police, ACB, v.

D. Anjaiah15 wherein also it was held that when the evidence would show that

no official favour was pending with AO to demand any bribe, the argument of

AO that he was really a bribe monger, he would have kept the complaint

pending without referring it as civil dispute for soliciting bribe is logically quite

appropriate.

26. But, the evidence of PW.3 would disclose that the official favour of

not dispatching the voluntary retirement application of Pw.1 was kept pending

though there was an entry made in the outward register since 25.05.2001 even

after the endorsement of AO on the application and a covering letter was also

addressed by the AO.

27. Mohd. Mujubuddin - PW.4 also stated in a similar manner as that of

PW.3. In his cross examination by the defence counsel, PW.4 stated that on

03.05.2001, PW.1 borrowed Rs.5,000/- from AO. After PW.1 applied for

voluntary retirement, AO asked PW.1 three or four times in their presence to

repay the loan and till the date of trap, PW.1 did not repay the loan to AO. On

the date of trap, PW.1 informed all the staff members including him that she was

repaying the said loan of Rs.5,000/- to AO. He also stated that there was only

one door i.e. spring door to the chamber of AO and it would automatically close

2014 SCC Online AP 1099 25 Dr.GRR,J Crla.No.1405 of 2007

when one entered into the said room and nothing was visible to the outsiders

what was happening inside the room when the door was closed. He also stated

that he heard the voice of AO from his room that he did not take any bribe from

PW.1 and she repaid the loan amount borrowed by her from him after ACB

officials entered into the room of AO.

28. Thus, though PWs.3 and 4 stated that one could not hear from the

room of AO when the spring door automatically closed, stated that they heard

the voice of AO from the room that he did not take any bribe amount from PW.1

and what was paid by her was the loan amount borrowed by her from him. The

evidence of these witnesses cannot be believed as they were working directly

under the control of AO and when AO himself had not stated in his explanation

recorded by the ACB officials immediately after the trap that the amount given

by PW.1 was towards repayment of loan and PWs.3 and 4 also had not stated

about the loan theory in their statements recorded by the ACB officials under

Section 161 Cr.P.C. No one prevented them from saying so, if it was true.

PW.3 had also attested on the panchanama affirming the truth of its contents.

Hence, he cannot take a different stand now saying that he signed on the said

statement without going through the contents. No documentary evidence was

there with regard to PW.1 borrowing any amount from the AO. The oral and

interested evidence of these witnesses cannot be believed when there was 26 Dr.GRR,J Crla.No.1405 of 2007

contrary evidence of the complainant, who stated that AO demanded bribe and

received the same, which was corroborated by the circumstances of his hands

turning pink, when sodium carbonate solution test was conducted. AO also had

not disputed that the tainted amount was not recovered from him. The only

defence he took was that he received the same as repayment of loan from PW.1.

But the said defence was not taken by him immediately after the trap during the

post trap proceedings but had taken by him only during the trial. Hence, it can

be considered as an afterthought. Without any documentary evidence relating to

the earlier loan transaction, any amount of oral evidence to the said extent is not

convincing.

29. The evidence of the defence witnesses examined as DWs.1 to 4 is

also similar to the evidence of PWs.3 and 4. All these witnesses are working as

Multi Purpose Health Assistants (Female) at various sub-centres under the

control of AO and their evidence is similar to the evidence of PWs.3 and 4. For

the same reasons, as discussed above, their evidence also cannot be believed.

None of these witnesses had given any representation to the Union leaders or

DM & HO or District Collector, Nizamabad or to the Superior ACB Officials

stating immediately that the amount paid by PW.1 was towards discharge of

loan but not the bribe amount. Their evidence that AO was humiliated, made to

wear towel and he was taken to the room of PW.3 and was made to sit there till 27 Dr.GRR,J Crla.No.1405 of 2007

7.00 PM till the ACB officials completed the post-trap proceedings and not

recorded the version of the AO as stated by him but obtained his signatures by

force, cannot be believed as AO also had not given any complaint either to the

Superior ACB officials or to the Court with regard to the said aspects.

30. Learned Special Standing Counsel relied upon the judgment of the

Hon'ble Apex Court in State of Maharashtra v. Narsing Rao16 wherein

guidelines for appreciation of evidence in a trap case are reiterated by the

Hon'ble Supreme Court as follows:

"It may not be proper to magnify every minor detail or omission or throw even a shadow of doubt in the prosecution evidence on that score unless the doubt is reasonably justified. Such a harsh standard may not be the correct judicial approach in a trap case. In such a contingency the prosecution may find it difficult to establish any case."

31. He relied upon another judgment of the Hon'ble Apex Court in R.S.

Nayak v. A.R. Antulay17 wherein it was held that:

"the provisions must be construed in such a manner which would advance the remedy and suppress the mischief which is intended to be curbed. That dos not mean that whatever doubt is there the evidence should be accepted. In a proper case the court can reject the prosecution case and accept the defence."

32. He relied upon the judgment of the High Court of Kerala in

P. Krishna Pillai v. State of Kerala18, wherein it was held that:

   AIR 1984 SC 63

   AIR 1985 SC 2045

   1989 (2) Crimes 700
                                                  28                                              Dr.GRR,J
                                                                                      Crla.No.1405 of 2007

"By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded for his reasons are numerous. He may have to make visits and wait on many officers. He will have to produce his own currency notes for arranging the trap. He has to comply with several formalities and give several statements. He will have to accompany the raiding party and play the main role. During all these periods he will have to forego his avocations and earnings. He has to attend court during trial and face searching cross examination. If the explanation offered by the accused is accepted he may have to face the humiliation of being condemned as a person who tried to falsely implicate a public servant. He may have to face the wrath of the department's officials also. No one would therefore be too anxious to face such an ordeal unless he is oppressed by a feeling of being wronged and finds the solution to be beyond endurance. But that does not mean that the Court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go by to the rules, the official refused to yield. In the case of such officers who are seen from the evidence to be honest and sincere and having good antecedents one may expect much safer and superior evidence to justify an, inference of having been implicated by a dishonest intention.

33. He also relied upon the judgments of the Hon'ble Apex Court in

Sudip Kumar Sen Alias Biltu v. State of West Bengal and others19 on the

aspect that the court may act on the testimony of a single witness uncorroborated

provided that the testimony of single witness is found reliable. The Hon'ble

Apex Court held that there was no impediment for recording conviction basing

upon an uncorroborated testimony of a solitary witness, if it is reliable.

     (2016) 3 SCC 26
                                                   29                                                Dr.GRR,J
                                                                                         Crla.No.1405 of 2007

34. He also relied upon the judgment of the Hon'ble Apex Court in

Bhagwan Jagannath Markad and others v. State of Maharashtra20 on the

aspect of burden of proof and appreciation of the evidence of witness. The

Hon'ble Apex Court held that:

"18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions - (i) when a person feels absolutely certain of a fact - "believe it to exist" and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability.

19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the court to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or

(2016) 10 SCC 537 30 Dr.GRR,J Crla.No.1405 of 2007

embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape."

35. Learned counsel for the appellant relied upon the judgments of the

Hon'ble High Court of A.P. in Addala Subramanyam v. State, rep. by

Inspector of Police, ACB, Vishakhapatnam21, Gajula Pandu Ranga Rao v.

State rep. by Inspector of Police, ACB22 and of the High Court of Telangana in

Gundappa Das v. State, rep. by Inspector of Police, ACB, Hyderabad23 on

the aspect that defence can establish its stand through preponderance of

probabilities and not by proving beyond reasonable doubt.

   (2013) 1 ALD (Cri) 934

   2011 (3) alt (Cri) (AP)

   2015 (3) ALT (Cri) 464 (AP)
                                         31                                        Dr.GRR,J
                                                                       Crla.No.1405 of 2007

36. But as discussed above, the evidence of Dws.1 to 4 and PWs.3 and 4

is not convincing to believe the theory of loan transaction by the AO.

Multiplication of oral evidence of witnesses would not make it believable.

37. PW.5 was the DSP, ACB, Nizamabad, who received the written

complaint from PW.1, registered the same, conducted the trap proceedings and

stated about the same in his examination before the Court. He stated that on his

instructions, his Inspector recorded the statements of PWs.4, 5 and Farhana

Begum examined as DW.3 and one G. Gangaram. He admitted in his cross-

examination that PW.2 acted as mediator in two other ACB cases. Just because

PW.2 acted as a mediator in other cases, he being the Government Servant, his

evidence need not be disbelieved.

38. PW.6 is the Section Officer who spoke about sanction issued by the

Principal Secretary to Government to prosecute the AO and her evidence was

formal in nature. In her cross-examination, she stated that DM & HO alone was

competent to accept/reject the voluntary retirement application of PW.1 and also

to give regular post at any place or transfer her to any place. But, the contention

of the complainant - PW.1 was that AO asked her to pay Rs.5,000/- for not

forwarding the voluntary retirement application which was obtained from her by

force. AO might not be the person who would accept or reject the voluntary 32 Dr.GRR,J Crla.No.1405 of 2007

retirement application of PW.1 or the person responsible to give her regular

posting or to transfer her to any place but he was the immediate controlling

officer to her and who made her to believe that he could see that a regular

posting was given to her at PHC Nizamsagar and when the same could not

happen, as per her evidence, he obtained the voluntary retirement application

from her by force and directed her to go on leave. Voluntary retirement

application signed by her, endorsed by the AO on 25.05.2001 was not forwarded

to DM & HO immediately and was kept pending even after the same was noted

in the dispatch register strengthens the case of the complainant that the official

favour of not forwarding her application was pending with the AO.

39. PW.7 is the Sub-Inspector, who filed charge sheet after recording the

statements of the witnesses PWs.3, 4, LW-6, Farhana Begum (DW.3) and LW-7

Gangaram. His evidence also would disclose that he got the 164 Cr.P.C.

statement of PW.1 recorded by the Additional Judicial Magistrate of First Class,

Nizamabad by filing a requisition before the Chief Judicial Magistrate and also

obtained sanction orders from the Government and filed the charge sheet.

40. Thus, on considering the evidence of the witnesses, even if PW.2 is

considered as not over heard the conversation between AO and PW.1 33 Dr.GRR,J Crla.No.1405 of 2007

immediately before the trap, there is nothing on record to disbelieve the

evidence of PW.1, whose evidence is consistent and trustworthy.

41. The evidence of PW.1 is supported by the evidence of PW.2 and

PW.5 on all material aspects in conducting the trap and in recording the

contemporaneous pre and post trap proceedings and the happening of the events

during the said proceedings. When the Accused Officer had not stated about the

loan theory in the post-trap proceedings and had signed on the same without any

complaint to his superior officials or to the superior officials of ACB

immediately thereafter, and kept silent till the time of trial, his evidence in the

said regard cannot be considered as genuine. The very fact of the seizure of the

tainted currency notes from the AO would prove that he demanded and received

the amount. The same was corroborated by the evidence of PW.1. All these

prove that the trap was successfully laid by the ACB officials. PW.1 stood

strong in her evidence and stated about the demand and acceptance of bribe from

the AO. The evidence of PW.1 inspires confidence and the trial court rightly

placed reliance on the evidence of PW.1. The appellant failed to substantiate the

defence theory even by the standard of preponderance of probability. Placing

reliance on the evidence of PW.1 and the admitted fact of the appellant receiving

the amount from PW.1, the trial court rightly believed that the prosecution

proved the presumption envisaged under Section 20 of the Act against the 34 Dr.GRR,J Crla.No.1405 of 2007

appellant to the effect that he received the said amount as illegal gratification for

doing official favour of not forwarding the voluntary retirement application of

PW.1 to the DM & HO. The appellant failed to discharge the burden and to

substantiate the defence theory that he received the amount as repayment of loan

from PW.1. Therefore, the conviction and sentence passed by the trial court

does not call for any interference in the present case. As such, the appeal fails.

42. As the trial court itself had taken a lenient view and inflicted only the

minimum sentences prescribed for the offences under Sections 7 and 13 (1)(d)

read with 13(2) of the Act, this Court does not find any need to interfere even

with the sentence inflicted on the appellant-AO. As such, it is considered fit to

confirm the conviction and sentence passed by the Principal Special Judge for

SPE & ACB cases on both the counts.

43. In the result, the Criminal Appeal is dismissed confirming the

conviction and sentence passed by the Principal Special Judge for SPE & ACB

Cases, Hyderabad, against the appellant - accused officer vide Judgment dated

06.10.2007 in CC No.33 of 2002 for the offences under Sections 7 and 13 (1)(d)

read with 13(2) of the Prevention of Corruption Act, 1988. The bail granted to

the appellant - accused officer during the pendency of the criminal appeal shall

stand cancelled. The appellant-accused officer shall surrender forthwith before 35 Dr.GRR,J Crla.No.1405 of 2007

the Court below, and suffer the rest of the sentence, as confirmed by this Court.

In the event he fails to do so, the Court below shall initiate steps in accordance

with law to apprehend and incarcerate him for the balance period as per the

confirmed sentence.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J March 11, 2022 KTL