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Andhra High Court · body

2003 DIGILAW 595 (AP)

S. v. S. KODANDA RAO VS State Of A. P.

2003-04-18

GOPALA KRISHNA TAMADA

body2003
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 IPC 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 under Section 7 of the PREVENTION OF CORRUPTION ACT, 1988; 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 under Section 13 (2) read with Section 13 (1) (d) of the Prevention of corruption Act; and rigorous imprisonment for six months for the offence punishable under Section 201 IPC. ( 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 under Sections 7, 13 (2) read with 13 (1) (d) of the PREVENTION OF CORRUPTION ACT, 1988 and section 201 IPC. ( 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 PW1) applied for an Agricultural income Certificate from the office of the mandal Revenue Officer and gave the application to PW1 asking him to pursue the said application and collect the certificate. 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 PW1) applied for an Agricultural income Certificate from the office of the mandal Revenue Officer and gave the application to PW1 asking him to pursue the said application and collect the certificate. Pursuant to that, PW1 approached the Village Assistant of Peravaram Village and got the required endorsement on the application and as directed by the Village assistant, his brother (PW2) 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 PW1 and recorded his statement. Later, PW1 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, PW1 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 PW1, 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 PW1 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 PW1 that if he pays an amount of Rs. 200/- he would get the certificate. Thereupon, PW1 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, PW1 went to the office of the Deputy Superintendent of Police, A. C. B. at Rajahmundry (examined as PW6) 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 PW1 to come on the next day with an amount of Rs. 200/- for the purpose of arranging a trap. P-4 ). On the basis of the said report, the Dy. Superintendent of Police instructed PW1 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, PW6 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 FIRs. to all concerned. Ex. P-27 is the FIR sent to the court. ( 5 ) ON 22-3-1990 morning, as per the instructions of PW6, PW1 went to the office of PW6 and by that time the mediators who were already arranged for the purpose of trap (i. e. , PW5 and another) were present. After introduction, PW6 furnished a copy of the FIR to the mediators and asked them to go through the same and verify the contents and truth of the same with PW 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), pw6 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 PW5 is marked as Ex. P-25. ( 6 ) ON the same day i. e. , on 22-3-1990 at 1. 15 p. m. , PW6, PW1, 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 12. 00 p. m. , pw6 reiterated his earlier instructions to PW1 and asked him to go to the M. R. O s office by walk and further instructed his staff members to follow PW1 one after another. After entering the office at about 2. 15 p. m. , when PW1 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, PW1 waited in the office till 3. 30 p. m. , when the appellant came to his seat. After entering the office at about 2. 15 p. m. , when PW1 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, PW1 waited in the office till 3. 30 p. m. , when the appellant came to his seat. When PW1 wished the appellant, the appellant asked him to wait and after sometime, both of them came out of the office. The appellant then questioned PW1 as to whether he brought the amount of Rs. 200/ -. When PW1 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 PW1. Later, both of them went inside the office. The concerned Clerk who picked up the file relating to the father of PW1 obtained the signature of PW1 as a token of receipt of the certificate. Later, both the appellant and PW1 came out of the office where PW1 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 PW1. Then, as per the arrangement, PW 1 came out of the office and gave a signal. On receipt of the said signal through H. C. 29, PW6 along with mediators and staff went inside it the MRO s office at 3. 45 p. m. and found PW1 standing outside the office. PW1 led the raiding party inside the office and showed the appellant. PW6, after introducing himself, confirmed the identity of the appellant. PW6 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. PW7 had thereafter taken up the investigation. 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. PW7 had thereafter taken up the investigation. After examining pw3 and another and recording their statements, PW7 got the statement of PW1 recorded through the II Additional Judicial I class Magistrate, Rajahmundry, under section 164 Cr. PC. ( 7 ) ON 14-11-1990, when PW7 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 PW1 to the appellant, PW7 examined the appellant and PW1 and ultimately confirmed that the said inland letter was written by PW1 under duress and was not written voluntarily. In the light of the said inland letter, PW7 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 and 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), PW7 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 ipc. After obtaining the required sanction, pw7 filed charge-sheet. ( 8 ) IN order to prove the guilt of the accused, the prosecution examined PWs. 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. PC, 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 PW1 on an earlier occasion. PC, 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 PW1 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 PW3 totally falsifies the evidence of PW1 and the entire case of the prosecution. In this connection, he drew my attention to the evidence of PWs. 1 and 3. According to pw1, 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 handover the Agricultural Income Certificate and accordingly the certificate was handed over by the Clerk to PW1 after obtaining the necessary endorsement. But PW3, the mandal Revenue Officer, has categorically stated that it is he who directed the concerned clerk to issue the certificate to PW1 and accordingly the certificate was handed over by the concerned Clerk to PW1 in his presence. Learned Senior Counsel contends that the above discrepancy in the evidence of PWs. But PW3, the mandal Revenue Officer, has categorically stated that it is he who directed the concerned clerk to issue the certificate to PW1 and accordingly the certificate was handed over by the concerned Clerk to PW1 in his presence. Learned Senior Counsel contends that the above discrepancy in the evidence of PWs. l 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 PW1 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. Pedda Babu, teamed Standing Counsel, submitted that PW1 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 PW1 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 PW1 towards repayment of loan and the alleged letter said to have been addressed by PW1 to the appellant is to be disbelieved in the light of the positive evidence of the Post Master (PW4 ). 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 PW1 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. P-6-letter was written by PW1 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 PW1 to do an official favour to PW1 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 PW1. PW2 is the brother of PW1. PW3 is the Mandal Revenue Officer of atreyapuram. PW4 is the Sub-Post Master of Atreyapuram. PW5 is the mediator for the pre-trap proceedings and also for the trap. PW6 is the Deputy Superintendent of police who conducted the trap. PW7 is the inspector of Police who conducted the posttrap investigation. ( 13 ) AS already stated, PW1 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. PW2, the brother of pw1, submitted the application for the issuance of Agricultural Income Certificate in the MRO office. As he was examined to establish only the said factum, his evidence is not of much help to the case of the prosecution. PW4, 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. PW5 is the mediator who came to the MRO 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. PW6 is the Dy. Superintendent of Police who conducted the trap. 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. PW6 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. PW7 is the inspector of Police who conducted the posttrap investigation as per the instructions of pw6. 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 PW3 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 PW6 and his staff. Although PW3 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 (PW1) 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 PW1. The question for determination is whether the evidence of PW1 can be brushed aside in view of the contradictory evidence of PW3 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 PWs. 1 and 3. ( 14 ) IT is the evidence of PW1 that his father viz. , Challa Venkataramaiah. Before going into the said aspect, I shall examine the legal evidence adduced by the prosecution in this case through PWs. 1 and 3. ( 14 ) IT is the evidence of PW1 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 LIC policy which he obtained in his name In that connection, the lic Officials asked Venkataramaiah to obtain Agricultural Income Certificate. Therefore, Venkataramaiah gave the application (Ex. P-1) along with the required enclosures to PW 1 and asked PW 1 to present the same in the MRO office at atreyapuram. PW1 then approached the village Assistant of Peravaram Village and obtained his endorsement on the said application. Thereafter, PW1 asked his brother (PW2) to present those papers in the MRO. Office, Atreyapuram and accordingly his brother (PW2) 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 PW1 by the Revenue Inspector. As per the directions of the Revenue inspector, PW1 thereafter approached the appellant herein in the MRO Office at atreyapuram. ( 15 ) AFTER going through the papers, the appellant told PW1 that they would not get the Agricultural Income Certificate as desired by them and asked him to represent the matter before the MRO (PW3 ). Thereafter, PW1 went to the MRO Office 5 or 6 times but they did not issue the certificate. Finally, he went to the MRO office on 20-3-1990 and met the appellant. The appellant informed PW1 that unless rs. 200/- is paid to him, PW1 could not get the certificate. PW1 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, PW1 gave a report to PW6. Thereupon, PW6 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 PW1 as per the direction of pw6. ( 17 ) THEN on 22-3-1990, P. Ws. 6 and 1, mediators and other police staff went to the MRO Office and reached there by 2. The mediators noted down the serial numbers of the currency notes worth Rs. 200/- which were brought by PW1 as per the direction of pw6. ( 17 ) THEN on 22-3-1990, P. Ws. 6 and 1, mediators and other police staff went to the MRO Office and reached there by 2. 15 p. m. When they reached the MRO office, PW1 was informed that the appellant went to have his lunch and that he would come back to the office by 3. 30 p. m. PW1 waited in the office itself till 3. 30 p. m. The further evidence of PW1 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 1 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 1 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. 1 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 1 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. 1 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, 1 came out of the office and gave the pre-arranged signal. . . . . " (emphasis supplied) ( 18 ) THE above evidence of PW1 clinchingly establishes the presence of the Head Assistant i. e. . Ex. P-5 is the endorsement made by me in token of the receipt of the copy of the Certificate. After receiving the certificate, 1 came out of the office and gave the pre-arranged signal. . . . . " (emphasis supplied) ( 18 ) THE above evidence of PW1 clinchingly establishes the presence of the Head Assistant i. e. . appellant herein, in the MRO Office at the time when PW1 went to the office on the date of trap, his demanding the amount of Rs. 200/- from PW1 and finally PW1 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, PW1 spoke about the presence of PW3 in the office at that time. PW1 had even asserted this aspect in his cross-examination by saying that "after I received the certificate, i saw the MRO standing at the entrance door to the Clerk s Hall. " In the very next sentence, PW1 also categorically denied the suggestion that the MRO sat in the seat of A. O. (the appellant) in the Clerk s Hall throughout the day on the date of the trap. PW1 further went to the extent of saying that on the date of trap, he did not even talk to the MRO. Thus, as per the evidence of pw1, it was the appellant who had issued the certificate to him by taking the tainted amount from him and the MRO (PW3) was never in the picture. The above evidence of PW1 was totally contradicted by PW3. I shall now proceed to peruse the evidence of PW3. ( 19 ) ACCORDING to PW3, the MRO, of Atreyapuram, the competent authority to issue the Agricultural Income Certificate is the MRO. At the outset in his evidence, pw3 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 MRO. An office note will thereafter be put up by the concerned Clerk. The same will be submitted to the MRO through the Head Clerk. The Revenue Inspector in turn verifies the records available with the concerned Village Assistant and sends up his report to the MRO. An office note will thereafter be put up by the concerned Clerk. The same will be submitted to the MRO through the Head Clerk. He further stated that at times, if the Head Clerk is not available, the file will be sent to the MRO directly. ( 20 ) IN regard to the application submitted by PW1, PW3 deposed that Ex. P-1 application was submitted before him by the son of the applicant on 28-2-1990. On the same day, PW3 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, PW3 sent the report of r. I. to the concerned Clerk. The evidence of pw3 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. dated 21 -3-1990 with his initial. The papers came to me through the office attender. I perused the R. 1 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 dated 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. . . . . 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. . . . . " (emphasis supplied) the above evidence of PW3 in his chief- examination makes it amply clear that the application of PW1 s father was processed in their office according to the instructions of PW3 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 PW3 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 1 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. 1 was informed by the Attender that I was called over the Phone by somebody. Then 1 went to the seat of the Head Clerk which was vacant and 1 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 1 instructed the c Clerk to issue the certificate. He issued the certificate and obtained acknowledgment of that person. " (emphasis supplied) the next two sentences in the cross- examination of PW3 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. " (emphasis supplied) the next two sentences in the cross- examination of PW3 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. " ( 21 ) THUS, as seen from the above evidence of PW3, it is clear that on that day PW1 went to the MRO Office and was waiting in the Clerk s Hall. Having seen PW1 there in the clerk s hall, PW3 enquired PW1 about the purpose for which he came to their office. Then PW1 informed him that he was there to receive the Agricultural income Certificate of his father Challa venkata Ramaiah. Upon hearing the same, pw3 asked the c Clerk to issue the said certificate to PW1. Accordingly, the c clerk issued the certificate to PW1 after obtaining his acknowledgment. From the above evidence of PW3, it is also clear that by the time the certificate is delivered to PW1 the appellant was not at all in picture as he did not come to the office by then. According to PW3, the appellant came to the office only thereafter i. e. , 45 minutes after the delivery of the certificate by the c Clerk to PW1. "while so, as already seen, PWl has given a totally different version about the trap. PWl stated that by the time he received the certificate, the MRO was not present in the office. But, the MRO (PW3) stated that on that day he came to the office in the afternoon and having noticed PWl sitting there, he talked to him and thereafter instructed the concerned c Clerk to issue the Agricultural Income Certificate to pw1. The presence of PW3 at the time of trap in the office is not at all in doubt in view of the evidence of the Investigating officer (PW6) himself in his evidence who categorically stated that the MRO was present in the office at that time. While pw1 says that he received the certificate by paying the tainted amount to the appellant, the MRO (PW3) states that the appellant was not at all present in the Office by the time the certificate is delivered to PW1. While pw1 says that he received the certificate by paying the tainted amount to the appellant, the MRO (PW3) states that the appellant was not at all present in the Office by the time the certificate is delivered to PW1. Thus, there are major discrepancies in the evidence of PW1, the de facto complainant, and PW3, the responsible Government officer, who was very much present in the office at the time when the trap took place. Interestingly, even though PW3 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 PW3 can be given weight in preference to the evidence of PW1. ( 22 ) HAVING gone through the evidence of PW1 and PW3. I am of the considered opinion that the evidence of PW3 is more cogent, convincing and trustworthy and, on the other hand, PW1 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 PW3 in preference to the evidence of the de facto complainant, who is an interested witness. If the evidence of PW3 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 PW1 as an illegal gratification for doing an official favour to PW1 and consequently, it failed to prove the first and second charges. ( 23 ) 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 PW1 alleged to have written that the amount paid by him to the appellant. According to the prosecution, the appellant approached the investigating agency during the pendency of their investigation and produced two inland letters, wherein PW1 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 PW4, the Sub-Post Master of atreyapuram. PW4 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 PW4 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, PW7 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 PW4. Further, even though PW1 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. PW7 had, in fact, admitted in his evidence that he did not enquire anybody to verify the statement of PW1 that Ex. P-6 was obtained under threat. PW7 had, in fact, admitted in his evidence that he did not enquire anybody to verify the statement of PW1 that Ex. P-6 was obtained under threat. Thus, the allegation of PW1 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 PW1 by the appellant ten days thereafter. While so, PW7 examined pw4 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 PW4, in my opinion, also proved fatal. Because, as seen from the evidence of pw4, 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 PW7 could examine PW4. 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 PW4 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 PW4 and his evidence in Court based on such comparison cannot be said to be trustworthy. Having gone through the evidence on this aspect, 1 am of the view that the investigation on this point appears to be perfunct and the evidence is quite insufficient to hold that the appellant had obtained the inland letters forcibly from PW! 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 PW1 was towards repayment of the hand loan which was taken from him by PW1. 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 v. State of maharashtra, AIR 2002 SC 486 , 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. In Punjabrao v. State of maharashtra, AIR 2002 SC 486 , 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. . . . . . . . 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. . . . . . . . ""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 PW1 on the date of trap towards repayment of the hand loan, 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. ( 24 ) IN view of the foregoing discussion, 1 am of the opinion that the prosecution has miserably failed to prove by adducing unimpeachable evidence that the appellant had taken illegal gratification from PW1 for doing an official favour to PW1 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. ( 25 ) 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.