JUDGMENT The accused in C.C. No. 16 of 2002 on the file of III Additional District and Sessions Judge-cum-Special Judge for A.C.B. Cases, Visakhapatnam filed this appeal assailing the impugned orders of the said Court in the said case whereby he was convicted for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the Act') and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-, in default, to undergo simple imprisonment for one month for the offence under Section 7 and also to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/-, in default, to undergo simple imprisonment for one month for the offence under Section 13(2) read with 13(1)(d) of the Act and both the sentences were directed to run concurrently. 2. The case of the prosecution, as unfolded by the charge sheet, is as under: That the appellant/accused was working as Chief Executive Officer at Zilla Parish ad, Vizianagaram, that P.Ws. 2 and 3 are the wife and husband. The husband (P. W. 3) was working as Junior Assistant in Zilla Parish ad High School, Nandabalaga village of Vizianagaram district. P.W.2, wife of P.W.3, was being harassed by the mother and widowed sister of P.W.3; that P.W. 2 along with her father-P.W.1, approached the appellant/accused and presented an application - Ex.P-1 on 11-12-2000 seeking transfer of her husband; that the appellant/ accused informed them that he would consider their request at an appropriate time and that on 03-03-2001, P.W. 2 along with her father-P.W.1 again approached the appellant/accused with the same request. However, the appellant/accused officer assured them that he would transfer P.W. 3 to some nearer place on deputation in due course as there was a ban on transfer and obtained another application-Ex.P-9 there for. However, the appellant/accused demanded Rs. 5,000/- as illegal gratification for doing such an official favour. When the father of P.W. 2 expressed his inability, the appellant/accused- reduced the amount to Rs. 3,000/- insisting payment on 4-4-2001 at his residence; that P.W. 1 submitted Ex. P-2 complaint before P.W. 8-Deputy Superintendent of Police, A.C.B., Vizianagaram and that on the following day i.e., on 4-4-2001, at about 9.35 a.m., a trap was laid successfully, after pre and post trap proceedings under Exs. P-5 and P-7. 3. 3,000/- insisting payment on 4-4-2001 at his residence; that P.W. 1 submitted Ex. P-2 complaint before P.W. 8-Deputy Superintendent of Police, A.C.B., Vizianagaram and that on the following day i.e., on 4-4-2001, at about 9.35 a.m., a trap was laid successfully, after pre and post trap proceedings under Exs. P-5 and P-7. 3. That during the course of post trap panchanama proceedings (Ex.P-7), the tainted amount of Rs.3,000/- was recovered from the bed room of the appellant/accused lying between two books and during the course of search of the house, fourteen full liquor bottles including four foreign liquor bottles (M.Os. 8 and 9) were found for which he had no permit or license and the appellant/ accused officer failed to give any proper explanation for possession thereof for which third charge was framed against him for the offence under Section 34(a) read with 14(2) of A.P. Excise Act. 4. That on the appellant/accused pleading not guilty for the charges, he was put on trial and that the prosecution, in support of its case, examined P.Ws. 1 to 8 and got marked Exs.P-1 to P-11 and M.Os 1 to 10 on its behalf. Ex. D-1 was marked on behalf of the appellant/accused. 5. The trial Court, taking into consideration the evidence of prosecution witnesses and other material on record, had found the appellant/accused guilty for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act and convicted and sentenced him therefor as has already been stated in para No.1, supra. However, so far as the third charge under Section 34(a) read with 14(2) of A.P. Excise Act is concerned, since the trial Court was not competent to try the said offence in view of there being a special Court for trial of excise offences in the District, it did not consider the same and toe trial Court has left the matter to the prosecution to initiate proceedings therefor against the appellant/accused before the proper Court, if so advised. 6. It is the case of the appellant/accused that the father-in-law of P.W. had developed grudge against him, since he had chastised P.W. 1 on more than one occasion for not sending his daughter-P.W. 2 to her husband P.W.3, as P.W. 1 happened to be working as Assistant Sub-Inspector at Gajapathinagaram. 6. It is the case of the appellant/accused that the father-in-law of P.W. had developed grudge against him, since he had chastised P.W. 1 on more than one occasion for not sending his daughter-P.W. 2 to her husband P.W.3, as P.W. 1 happened to be working as Assistant Sub-Inspector at Gajapathinagaram. Further that, P.W. 1 also happened to work under L.W. 16 Satyanarayana, who was working as O.S.P., A.C.B., Vizianagaram Previously and the said D.S.P. also was made to influence the appellant/accused in considering the request of P.W. 1 for transferring P.W. 3. It is to be found in the cross-examination of P.W. 3 that the appellant/accused had chastised P.Ws.1 and 2 and directed P.W. 3 to take P.W. 2 to their matrimonial home. Further, it is to be found in the cross-examination of P.W.1 that he had worked under L.W. 16-G. Satyanarayana was working as Inspector, A.C.B., at the time of the trap, he (L.W.16) was present throughout the trap proceedings. Therefore, it is contended that it is evident from the cross examination of P.Ws. 1 and 3 that P.W. 1 had developed grudge against the appellant/accused and preferred false complaint-Ex.P-2 against him by using services of L.W. 16-G. Satyanarayana, who was working as Inspector, A.C.B., Vizianagaram at that time. It is further the case of the appellant/accused that due to the said grudge and knowing fully well that there was a ban over transfer till the end of July 2002, P.W. 1 preferred false complaint Ex.P-2 before the D.S.P., A.C.B., Vizianagaram. P.W. 7 has spoken as to the ban for transfers till the end of July, 2002. Further, the evidence of P.Ws. 1 and 2 also reveals the fact that the ban for transfers was within their knowledge. In the circumstances, that being so, it is contended that P.W. 1, being an Assistant Sub-Inspector of Police and having the knowledge of such ban for transfers, how he could think of bribing the appellant/accused to help his son-in-law by transferring to some other place. It is further contended that P.W. 1 preferring Ex. P-2 complaint stands falsified by the testimony of P.W. 3, as he has stated in his cross-examination that on the previous day of the trap, his father-in-law (P.W. 1) came to his house at about 8.30 a.m. and stayed there till 3.30 p.m., whereas Ex. It is further contended that P.W. 1 preferring Ex. P-2 complaint stands falsified by the testimony of P.W. 3, as he has stated in his cross-examination that on the previous day of the trap, his father-in-law (P.W. 1) came to his house at about 8.30 a.m. and stayed there till 3.30 p.m., whereas Ex. P-2 complaint is said to have been presented before the D.S.P., A.C.B., Vizianagaram at 11 a.m. on that day, which is impossible since Vizianagaram is 60 kms away from his residence. Therefore, it is contended that it creates doubt or suspicion about the presence of P.W.1 at Vizianagaram at 11 a.m. on the previous clay of the trap. It is further contended that Ex. P-2 is a false complaint preferred by P.W.1 out of grudge against the appellant/accused. Further, it is to be seen from the cross-examination of P.W.1 that he had decided to prefer Ex. P-2 report on 03-04-2001 at 11 a.m. Para No. 15. However, at Para No. 16, he has stated that he had been to A.C.B office at 9 a.m. on that day. It is nothing but a clear case of contradicting himself and that he is not an ordinary person. He was working as A.S.I. at that time and he claimed to have investigated several cases in that position. Therefore, it is unthinkable that a man of that status would admit such things in his cross-examination amounting to self contradiction. It is pointed out from the evidence of P.W. 1 that during the tenure of his service, he was made to face several enquiries and underwent many suspensions and demotions for misconduct. Therefore, it is contended that his evidence cannot be taken on face value. He is not at all reliable and his evidence cannot be relied on. It is further the case of the appellant/accused that on the date of the trap i.e., 04-04-2001, at about 9.25 a.m., the appellant/accused along with P.W.4 was sitting on the veranda of his house. It was at that time, P.W. 1 is said to have gone there. The prosecution alleged that the appellant/accused called him inside the bed room and there he is alleged to have demanded and accepted the bribe amount of Rs.3,000/-, which is alleged to have kept between two books on the bed. It was at that time, P.W. 1 is said to have gone there. The prosecution alleged that the appellant/accused called him inside the bed room and there he is alleged to have demanded and accepted the bribe amount of Rs.3,000/-, which is alleged to have kept between two books on the bed. Thereafter, the trap party is alleged to have entered into the house and failed to trace the money and as such, the trap party called P.W. 1 inside the house and that P.W. 1 went inside the house and took out the money from bed that was lying in between the two books. In this connection, it is contended that the appellant/accused was not aware of the presence of the said currency notes and that even the trap party also could not notice the same, it is only P.W. 1, who removed the money from between the two books lying on the bed and as such, the very fact goes to prove that the amount was planted by P.W.1 between the two books and the same goes to falsify the prosecution case that the appellant/accused has demanded and accepted the said amount towards illegal gratification. So far as the left hand fingers of the appellant/accused turning positive is concerned, it is stated to be due to P.W.1 handling the currency notes as well as the transfer application and since the appellant-accused received the transfer application with his left hand, his left hand fingers proved positive to the phenolphthalein test. 7. It is shown from the cross-examination of P.W. 4-M.P.D.O that she went to the house of the appellant/accused on the date of trap i.e. 4-4-2001 at about 9.00 a.m., and she was discussing with him about the official matters. That at that time, P.W.1 not known to P.W. 4 came there, on seeing him, the appellant/accused questioned P.W. 1 as to why he had come there on which, P.W. 1 requested him to come in to the room for a while. That at that time, P.W.1 not known to P.W. 4 came there, on seeing him, the appellant/accused questioned P.W. 1 as to why he had come there on which, P.W. 1 requested him to come in to the room for a while. In view of the said fact it is contended that P.W. 1 had grudge to falsely implicate the appellant/accused and he had motive to do so because appellant/accused has not obliged the request of P.W. 1 to transfer his son-in-law in spite of pressing the services of L.W. 16 G. Satyanarayana, Inspector, ACP, Vizianagaram, to bring pressure on him, may be that he had taken it as prestige issue being the cadre of ASI of Police, and may be thinking that his prestige is being lowered in the eyes of his family members. It is canvassed on behalf of the appellant/accused that he was helpless in transferring P.W. 3-son-inlaw of P.W. 1 in view of the ban, which fact was very much known to P.W. 1 and also his daughter P.W. 2. Further it is in the evidence of P.W. 7-Account Officer in Zilla Parishad that the appellant/accused was without powers of transfer and that ultimate authority to transfer the State Government employee of that particular district was vested with the Collector. Therefore, it is clear that the appellant/accused was not in a position or capable of helping or doing any official favour to P.Ws. 1 and 2. However, in view of the circumstances, already referred to in the evidence of other witnesses, it seems that P.W. 1 had a motive or grudge or at least developed them, in view of the failure on the part of the appellant/accused in helping him by transferring his son-in-law-P.W. 3, as he was helpless due to the ban, P.W. 1 appears to have referred Ex. P-2 complaint out of grudge. Moreover, he has contradicted himself during the course of his cross-examination as to the time of demand and acceptance of the bribe and as to his intention to prefer Ex. P-2-complaint before ACB Officials at a particular time and being at the place of P.W. 3, he cannot be said to have reached Vizianagaram to prefer such a complaint at the intended time as the distance between both the places is 60 KMs. P-2-complaint before ACB Officials at a particular time and being at the place of P.W. 3, he cannot be said to have reached Vizianagaram to prefer such a complaint at the intended time as the distance between both the places is 60 KMs. Therefore, it is contended that none of the prosecution witnesses supported or corroborated the evidence of P.W.1 and as such the case of the prosecution should have no legs to stand. 8. It is the case of the prosecution that the prosecution has proved the guilt of the appellant-accused before the trial court through the evidence of P.W.1 coupled with or corroborated by the evidence of P.Ws.4, 5, 8. It is contended that the bribe amount was paid to the appellant/accused to consider the case of P.W.3, who is the son-in-law of P.W.1 and husband of P.W. 2, seeking his transfer at least on deputation ground as there was a ban for transfers. It is contended that it is clear from the evidence of P.W. 4-MPDO that on 4-4-2001 at about 9.30 a.m. she along with the appellant/accused was sitting in a room in the house of the appellant/accused. It was at that time P.W. 1 came there and took appellant/accused into a bed room. That soon after both of them came out of the bed room, the ACB trap party entered the bed room and the post trap proceedings were conducted in her presence. According to prosecution, the trap proceedings relate to written request of P.W.1 to get his son-in-law P.W.3 transferred on deputation and it refers to the evidence of P.W. 1 in this connection, where P.W. 1 has stated that his daughter-P.W. 2 came to his house in connection with Ugadi festival of 2001. On 3-4-2001 at about 9.00 am he went to the house of the appellant/accused second time and appellant/accused demanded bribe of Rs.5,000/- for transfer on deputation and that he reluctantly agreed to pay Rs.3,000/-. Further, in this connection, the prosecution refers to the evidence of P.W. 1, who at the relevant time has stated that one lady (P.W.4) sitting in the veranda and the appellant/ accused was talking to her and on seeing him (P.W.1), the appellant/accused asked him to enter the southern side bed room, he obliged him; that he also entered the room, demanded and accepted Rs.3,000/-. He received the currency notes with his left hand and kept between Andhra Bhoomi Weekly and another book. Therefore, it is contended that the plea raised by the appellant/accused that the said amount (M.O.7) was planted without the knowledge of the appellant/accused is incorrect since the same has been spoken to by P.W. 4. It is also contended that the left hand fingers of the appellant/accused turning positive to the Phenolphthalein test and it goes to prove that he had demanded and accepted bribe amount from P.W. 1. It is also contended that the demand and acceptance of the bribe of tainted-amount of Rs.3,000/- by the appellant/accused stands proved by the evidence of P.W. 1 supported by the evidence of P.Ws. 4, 5 and 8 and also coupled with Ex. P-7-mediators report No.2. Further the trial court was right in observing that P.W. 5 was an independent witness having acted as a mediator to Exs. P-5 and P-7 pre and post trap proceedings and that he had no axe to grind against the appellant/accused and as such, the prosecution did not see any substance to disbelieve his evidence and further P.W. 8 also had no animosity or motive against the appellant/accused. Therefore, it is contended that the impugned order of conviction and sentence passed by the trial court is not liable to be interfered with by this court. Prosecution relied on a decision in Jainarain v. The State of U.P. (1) AIR 1974 SC 226 , wherein it was held to the effect that where the tainted amount was recovered during the course of trap proceedings from the pocket of the accused and when the explanation offered by him is disbelieved on account of infirmities in his explanation, his conviction on the basis of prosecution evidence consisting only of witness who has participated in the trap proceedings with corroboration is not illegal. 9. The case of the appellant-accused is that P.W. 5 who has acted as mediator to Ex. P-5 and P-7-pre and post trap proceedings is not at all an independent witness. He was working as Divisional Engineer, Panchayat Raj at that time. ACB summoned him to act as mediator. 9. The case of the appellant-accused is that P.W. 5 who has acted as mediator to Ex. P-5 and P-7-pre and post trap proceedings is not at all an independent witness. He was working as Divisional Engineer, Panchayat Raj at that time. ACB summoned him to act as mediator. Moreover, he was not present at the time of alleged demand and acceptance of the bribe money by the appellant/accused from P.W. 1 since the transaction alleged to have been taken place in a bedroom and further P.W. 5 along with Investigating Officer is alleged to have entered the said bed room only after receiving signal from P.W.1. Therefore, he cannot be imputed with knowledge of demand and acceptance of the bribe by the appellant/accused from P.W. 1. Referring to the evidence of P.W.4-MPDO, it is contended that she has admitted in her cross-examination that when P.W. 1 entered the house of the appellant/accused, he asked P.W. 1 as to why he came there, in this connection, it is contended that if at all the appellant/accused demanded bribe amount from P.W.1, in the ordinary course of nature, he would not have asked P.W.1 as to why he came there. It is to be found in the chief Examination of P.W. 1 himself that when trap party entered the house of the appellant/ accused he was asked by P. W. 8 investigating officer (DSP) to stay outside and two hours thereafter, he was called inside. In the cross-examination, P.W. 1 admitted that the appellant/accused stated before the trap party that he did not demand and accept the amount from him; that then he (P.W.1) shown the tainted currency notes (M.O.7) to P.W. 8 DSP which was kept in between Ex. P-3 books and that when appellant/accused refused to pick up the tainted amount at the direction of P.W. 8, P.W. 8 instructed P.W. 5, who picked up M.O. 7 from Ex. P-3 books. Therefore, it is contended that the explanation given by the appellant/accused is most probable. P-3 books and that when appellant/accused refused to pick up the tainted amount at the direction of P.W. 8, P.W. 8 instructed P.W. 5, who picked up M.O. 7 from Ex. P-3 books. Therefore, it is contended that the explanation given by the appellant/accused is most probable. It is further contended that the parties are aware that there was ban for transfer till the end of July, 2002 and the same is evidence from the evidence of P.W. 7 accounts officer who has clearly stated that there was ban for transfers till the end of July, 2002 and generally the counseling takes place during the month of May and June; that request of transfer application should be submitted by the employee; that the employee concerned is none other than P.W. 3 and that he had submitted his application Ex. D-1 on 6-2-2001 not to transfer him from Zilla Parishad High School, Nandabalaga village which was much prior to the date of trap i.e. 4-4-2001. Therefore, it is contended that P.W. 1 is a third party; he has no right to submit transfer application before the appellant/accused that took while Ex. D-1-application of P.W. 3 not to transfer him was pending and as such the question of demanding and accepting bribe on the basis of the alleged Ex. P-2 complaint alleged to have been preferred by P.W.1 did not arise. It is also contended that it is settled law, as of now, that mere recovery of any amount during the course of trap proceedings by itself is not sufficient to base conviction when the demand of the illegal gratification is falsified. In this connection, it is to be observed that it was highly improbable for anyone to cover 60 Kms of distance as P.W.1 has stated in his evidence that on the previous day of trap, he was in the house of his son in law P.W. 3 till 3.30 p.m. and as such his reaching Vizianagaram and giving complaint-Ex.P-2 on that day at 11.00 a.m. is most improbable, suspicious and doubtful. The contention of the appellant/accused appears to be probable that his left hand fingers turned positive (pink) because the tainted currency and Ex. P-9 were handled by P.W. 1 and since Ex. P-9 was handed over to appellant/accused, his left hand fingers turned positive. 10. The contention of the appellant/accused appears to be probable that his left hand fingers turned positive (pink) because the tainted currency and Ex. P-9 were handled by P.W. 1 and since Ex. P-9 was handed over to appellant/accused, his left hand fingers turned positive. 10. In the above facts and circumstances of the case and also considering the evidence of prosecution witnesses, it cannot be said that the prosecution has proved its case beyond all reasonable doubt and as such, the trial court appears to have committed error in convicting the appellant/accused. Further, in view of the discrepancies in the evidence of prosecution witnesses as has already been discussed hereinabove, this court is of the view that the plea taken by the appellant/ accused appears to be probable and that in any case the trial court ought to have given and extended benefit of doubt to the appellant/accused. 11. In the result, the Criminal Appeal is allowed, and the conviction and sentence imposed on the appellate/accused in C.C.No. 16 of 2002 on the file of the III Additional District and Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam, is set aside.