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2020 DIGILAW 253 (AP)

Malavya Prem Kumar v. State of A. P.

2020-03-17

RAKESH KUMAR

body2020
JUDGMENT: The sole appellant has preferred the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, against the judgment of conviction and sentence passed by the learned Special Judge for SPE & ACB cases, Nellore, in C.C.No.15 of 2001. 2. The appellant was convicted and sentenced, by judgment, dated 12.02.2007, for offence under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act’). Under Section 7, the appellant was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default of payment of fine, he was further directed to undergo simple imprisonment for one month. Under Section 13(2) read with 13(1)(d) of the PC Act, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-. In case of default of payment of fine, he was directed to further undergo imprisonment for one month. All the sentences were directed to run concurrently. The judgment of conviction & sentence was passed by Sri B.Sivanagi Reddy, learned Special Judge for SPE & ACB Cases, Nellore, (hereinafter referred to as ‘trial Judge’) in C.C.No.15 of 2001 (arising out of Crime No.10/ACB-NLR/2000 of ACB, Nellore Range, Nellore). 3. The short fact of the case is that on 31.08.2000, PW6-K.Thimmappa, Deputy Superintendent of Police, ACB, received complaint (exhibit P2) given by the complainant, PW1-Shaik Ghouse Basha. In the complaint, it was alleged that the complainant had purchased land about seven years ago adjacent to his rented house and got executed possession deed. He intended to construct a house in an extent of 7 ½ ankanams and for the last two months, he was proceeding with the construction work and the same had come to slab level. It was alleged in the complaint that about ten days back, Premkumar (appellant), the Inspector of Nellore Municipality, came to the site where he was constructing his house and instructed him that the complainant had no right to construct the house without the permission of the Municipality and asked him to stop the construction work. However, the complainant informed that he would submit the relevant papers to the Municipality. However, by instructing not to construct, the appellant returned back. However, the complainant informed that he would submit the relevant papers to the Municipality. However, by instructing not to construct, the appellant returned back. Again, on the date of complaint, i.e., 31.08.2000, in the morning at about 11 am, the appellant, i.e., the Building Inspector came to the house, where construction work was going on and stated that even though he had stated to stop construction work, the complainant was trying to complete the construction. The appellant threatened that he would demolish the house and threatened for dire consequences. Despite the fact that the complainant requested that he would submit papers for getting the plan approved from the Municipality, the appellant asked him to pay Rs.1,500/-as bribe to him so that he may not obstruct the complainant. Anyhow, after some persuasion, he agreed for reducing the demanded bribe amount from Rs.1,500/-to Rs.1,000/-and asked the complainant to pay first Rs.500/-by Saturday, i.e., 02.09.2000 and on 02.09.2000, he would come to the place, where construction work was going on for collecting the money and the remaining amount of Rs.500/-was directed to be paid within one week thereafter. The complainant in his complaint stated that he was not intending to pay the bribe amount to the appellant and requested the Deputy Superintendent of Police to take necessary action. It is the case of the prosecution that after receipt of the complaint, the credibility of the appellant was got verified and thereafter, on 02.09.2000, the date on which, as per the demand payment was made, a pre-trap memorandum (exhibit P5) was prepared in between 8.30 am to 10 am on 02.09.2000. In the pre-trap memo, five currency notes of Rs.100/-denomination were mentioned with serial numbers. It was prepared in the presence of two mediators, namely, Gummadi Yedukondalu (PW2), the then Assistant Executive Engineer, RWS Division, Nellore and one Mamidala Narayana. The pre-trap memo was got signed by most of the members of the trap party. After preparation of pre-trap memo, on 02.09.2000 itself, a trap was laid, on 02.09.2000 at 11.25 am with the currency notes, which were applied with phenolphthalein powder. After trap, a Post-trap memorandum (exhibit P7) was prepared at the place of offence itself. After the appellant was trapped, his both hand fingers were got dipped in the solution of water and colour of the water turned pink. After trap, a Post-trap memorandum (exhibit P7) was prepared at the place of offence itself. After the appellant was trapped, his both hand fingers were got dipped in the solution of water and colour of the water turned pink. The pocket of the shirt, which the appellant was wearing and in which he had kept the tainted money was also dipped in the water solution, which turned pink. After preparation of post trap memo, the appellant was arrested and on the same date, he was granted bail by the police itself. After the appellant was apprehended and questioned by the investigating officials, he took a defence that the trap money was thrusted by the complainant in his pocket which at the time of inspection by the trap party he thrown on the ground. After preparation of post-trap memo, the case was investigated and during the investigation, the prosecution sanction order was obtained from the sanctioning authority (which was issued on 21.06.2001) and finally after collecting the material on record and recording the statements of witnesses, on 17,07.2001, charge sheet was submitted against the appellant and thereafter, charges under Sections 7, 13(2) read with 13(1)(d) of the PC Act were framed on 12.11.2003, which the appellant denied and claimed to be tried. 4. To prove its case on behalf of the prosecution, altogether, seven witnesses were examined. Following documents were got exhibited:-Exhibit P1 is Xerox copy of registered sale deed, dated 13.03.1995, executed by Sk.Kaleesha and another in favour of PW1; exhibit P2 is report, dated 31.08.2000, given by PW1 to the Dy. S.P., ACB, Nellore; exhibit P3 is relevant portion marked in 161 Cr.P.C statement, dated 02.09.2000, of PW1; exhibit P4 is carbon copy of FIR, dated 02.09.2000, in Crime No.10/ACB-NLR/2000; exhibit P5 is Mediator Report No.1, dated 02.09.2000; exhibit P6 is rough sketch of the scene of offence; exhibit P7 is Mediator’s report no.2, dated 02.09.2000; exhibit P8 is the search list, dated 02.09.2000; exhibit P9 is authorization, dated 04.02.2000, given to PW3 to give evidence in Court; exhibit P10 is sanction order, dated 21.06.2001, to prosecute the accused officer; and, exhibit P11 is the original FIR in Crime No.10/ACB-NLR/2000. Material objects, i.e., MOs 1 to 7 were got marked. Material objects, i.e., MOs 1 to 7 were got marked. MO1 is the sealed cover containing sample of Sodium Carbonate powder; MO2 is the Sealed cover containing sample of Phenolphthalein powder; MO3 is currency notes worth Rs.500/-; MO4 is the shirt of AO; MO5 is the bottle containing right hand wash of AO; MO6 is the bottle containing the wash of left hand of AO; and, MO7 is the bottle containing the wash of inner linings of the shirt pocket of the AO. 5. After completion of the prosecution evidence, statement of accused under Section 313 Cr.P.C was recorded and the incriminating circumstances were explained to him. However, the appellant denied the charges and claimed as if he was falsely implicated. To disprove the prosecution case, the appellant also examined one witness, i.e., DW1, T.Chinnabbai, formerly Chain-man, Nellore Municipality. However, no documents were got exhibited from the side of defence. The learned trial Judge, after minutely examining the entire evidence on record, has passed the judgment of conviction and sentence, which has been assailed in the present appeal. 6. Sri M.Ravindra, learned counsel representing Sri M.Venkata Narayana, learned counsel for the appellant after placing the entire evidence has argued that the learned trial Judge has completely erred in passing the judgment of conviction and sentence in a case, where the prosecution has miserably failed to establish the demand made by the appellant. He further submits that the prosecution has also not brought on record any cogent evidence to show that official favour the appellant was going to render in respect of the complainant. On the point of presumption, he has argued that presumption is rebuttable and moreover only on the ground of receipt or recovery of the bribe amount, presumption cannot be drawn that the appellant had demanded the bribe particularly in view of defence taken by the appellant that the bribe amount was thrusted in the shirt pocket of the appellant by the complainant. This fact is evident from the post-trap memo, i.e., exhibit P7 that immediately after the trap; the appellant disclosed that the bribe money was thrusted in his pocket by the complainant. According to the learned counsel for the appellant, the investigation in the case was only a table work and it was a case of false implication. This fact is evident from the post-trap memo, i.e., exhibit P7 that immediately after the trap; the appellant disclosed that the bribe money was thrusted in his pocket by the complainant. According to the learned counsel for the appellant, the investigation in the case was only a table work and it was a case of false implication. To substantiate the point that the prosecution miserably failed to establish any demand of bribe by the appellant, he has heavily relied on the evidence of the complainant, who was examined as PW1. According to him, since the complainant himself was turned hostile and in the case, there is no other witness to corroborate the case of demand of bribe by the appellant, certainly it is a case of no evidence on the point of demand of bribe by the appellant. According to the learned counsel for the appellant without proof of demand of bribe, there was no reason for the learned trial Judge to pass judgment of conviction under either of the sections of the PC Act. In support of his submission that in the absence of demand one may not be convicted for offence under Section 7 of the PC Act, he has placed reliance on a decision of the Hon’ble Supreme Court in Dashrath Singh Chauhan v. Central Bureau of Investigation 2018 Law Suit (SC) 1019 and referred to paragraphs 29 & 30 of the judgment, which are quoted herein below: “29. It is for the reason that in order to prove a case against the appellant, it ws necessary for the prosecution to prove the twin requirement of “demand and the acceptance of the bribe amount by the appellant”. As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rahinder Kumar-co-accused (A-1). 30. In such circumstances, there is no evidence to prove that the appellant directly accepted the money from the complainant. Since the plea of conspiracy against the appellant and Rajinder Kumar failed, it cannot be held that money (Rs.4,000/-) recovered from the possession of Rajinder Kumar was as a fact the bribe money meant for the appellant for holding him guilty for the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the PC Act. Since the plea of conspiracy against the appellant and Rajinder Kumar failed, it cannot be held that money (Rs.4,000/-) recovered from the possession of Rajinder Kumar was as a fact the bribe money meant for the appellant for holding him guilty for the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the PC Act. It is more so when the benefit of such acquittal from the charge of conspiracy was given to Rajinder Kumar but was not given to the appellant.” He has further placed reliance on an unreported judgment passed by a Division Bench of this Court in Shaik Abdul Basheer v. State of A.P Criminal Appeal Nos.4 & 70 of 2007, dated 31.10.2018 and referred to paragraphs 19 & 23 of the judgment, which are reproduced herein below: “19. From the above discussion, it can be believed that certainly, the accused have come into contact with the tainted amount, but as to who accepted the said amount is not clear. According to PW1, he did not give any amount to the accused. According to him, he gave tainted amount to the ACB officials. But it is obvious that PW1 is deposing falsely as there is ample evidence to say that accused No.2 threw the tainted amount through the window. According to PWs.1 and 2, there is no demand made by the accused. But the evidence proves that A1 and A2 came into contact with the tainted amount, but in the absence of any evidence as to who accepted the said amount, it cannot be said that the fact of acceptance by an of the accused is proved, when alone the presumption under Section 20 of the Act would come into operation. 23. Hence, in view of the failure of the prosecution to prove the demand and also the acceptance by the accused and also the pendency of any official favour from the accused, merely by invoking the presumption under Section 20 of the Act, the guilt of the accused cannot be concluded.” Similarly, reliance has been placed on paragraphs 7 & 8 of the judgment of the Hon’ble Supreme Court in B. Jayaraj v. State of APPELLANT 2014 Law Suit (SC) 217. Those paragraphs are reproduced herein below: “7. Those paragraphs are reproduced herein below: “7. In so far as the offence under Section 7 is concerned, it is a settled position of law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P 2010 15 SCC 1 and C.M.Girish Babu Vs. C.B.I 2009 3 SCC 779 . 8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P.11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of the Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d) (i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant t obtain any valuable thing or pecuniary advantage cannot be held to be established.” 7. The above also will be conclusive in so far as the offence under Section 13(1)(d) (i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant t obtain any valuable thing or pecuniary advantage cannot be held to be established.” 7. In sum and substance, it has been argued by the learned counsel for the appellant that the prosecution since had failed to establish the case of demand made by the appellant in view of the law set at rest by the Hon’ble Supreme Court, there was no reason for the learned trial Judge to pass judgment of conviction and sentence against the appellant. He reiterated that it was out and out case of false implication and this was the reason that right from the very beginning, the appellant had taken a stand that the bribe amount was forcibly trusted in his upper shirt pocket and subsequently, the appellant has thrown the said amount on ground and this was the reason that on being asked to dip his finger in the water solution, it turned pink. According to him, though the prosecution had completely failed to establish its case, the learned trial Judge, without any cogent reason, has passed the judgment of conviction and sentence, which is liable to be set aside. On the basis of evidence on record, learned counsel for the appellant tried to persuade the Court that not a chit of paper has been brought on record by the prosecution to show as to how the appellant was going to give any official favour to the appellant whereas immediately after the trap, the ACB police conducted raid in the house of the appellant, however, no incriminating materials were collected. 8. Sri S.M.Subhani, learned Standing Counsel for ACB opposing the appeal and supporting the judgment of conviction and sentence has argued that there is sufficient material to show that the appellant was giving official favour to the complainant. It has been argued that admittedly, the area within which the complainant was proceeding with the illegal construction work was within the jurisdiction of the appellant, as Inspector of Nellore Municipality. It has been argued that admittedly, the area within which the complainant was proceeding with the illegal construction work was within the jurisdiction of the appellant, as Inspector of Nellore Municipality. He submits that in the complaint itself, i.e., exhibit P2, it has been indicated that ten days prior to the complaint, i.e., 31.08.2000, the appellant in the capacity of Inspector, Municipality of the area had visited the site and asked the complainant to get the plan approved by the Municipality. However, the appellant had not issued any notice to the complainant for stopping the work nor any file was opened by him regarding the illegal construction work, which was going in the plot of the complainant. Sri Subhani has argued that this circumstance itself is enough to draw an inference that the appellant on one hand was allowing the complainant to proceed with the illegal construction work and on the other hand, he was pressurizing the complainant to give the bribe amount of Rs.1,500/-. Taking clue from the argument of the learned counsel for the appellant that no incriminating articles were recovered from the premises of the appellant, after his house was raided, Sri Subhani has argued that this goes to suggest that the appellant had not opened any file nor issued any notice t the complainant for stopping the illegal construction work. Rather, it has come in the evidence that on 31.08.2000, the appellant on visiting the place of construction work had directed the complainant to pay the first installment of bribe amount of Rs.500/-by 02.09.2000 and then he returned back. On the basis of complaint itself, on schedule date, i.e., on 02.09.2000, again the appellant visited the site of the complainant. There is no explanation by the appellant as to what was the occasion for him to visit the place of illegal construction work. These circumstances are itself sufficient to come to a conclusion that by allowing the complainant to proceed with the illegal construction work, the appellant, in the capacity of Inspector of Municipality of the area concerned, was rendering official favour to the complainant and that there is no reason to raise any suspicion on the established fact of official favour being rendered by the appellant to the complainant. 9. 9. Refuting the submission of the learned counsel for the appellant regarding non-establishment of demand of bribe, learned standing counsel for ACB submits that though the complainant/PW1 turned hostile and he was cross-examined by the prosecution, number of facts have been brought on record to establish the demand of bribe by the appellant. It has been argued that in a case in which a prosecution witness is declared hostile, his entire evidence may not be brushed aside. He has specifically referred to the evidence of PW1 at paragraph no.2 at page no.10, page No.12, 6th line from the top and on the same page, 6th line from the bottom, page No.13 paragraph No.2 in respect of evidence of PW1 regarding the acceptance of bribe and also to paragraph No.1, 6th line of evidence of PW1. On the point that even though a prosecution witness is turned hostile, some part of his evidence can be relied upon by the prosecution, Sri Subhani has placed heavy reliance to paragraph No.24 of a judgment of Hon’ble Supreme Court in T.Sankara Prasad v. State of A.P 2004 CRI.L.J 884, wherein it has been indicated that ‘the fact that PW1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether.’ By way of referring to the evidence of PW1, which has been referred to herein above, learned Standing Counsel for ACB has argued that the prosecution has able to establish that the appellant had demanded bribe from the complainant/PW1 and as such, the appellant may not get any benefit from the judgments on which reliance was placed by the learned counsel for the appellant and referred herein above. 10. Sri S.M.Subhani, learned Standing Counsel for ACB has further argued that on examination of evidence in totality as well as with the aid of Section 20 of the PC Act, the prosecution has been able to establish the case of demand of bribe, acceptance of bribe and the recovery of the bribe amount, which has not been rebutted by the defence. By way of highlighting the stand in view of Section 20 of the PC Act, Sri Subhani has placed reliance on paragraphs 13, 14, and 24 of the judgment in T.Sankara Prasad (4 supra), which are reproduced herein below: “13. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. 14. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra ( 1998 (7) SCC 337 ) "A presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning".1998 Cri.L.J 4592:1998 AIR SCW 3182 : AIR 1998 SC 3258 .” 24. The fact that PW-1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be creditworthy and act upon it. As noted above, PW-1 did not totally resile from his earlier statement. There was only a half-hearted attempt to partially shield A-2. PW-1 has categorically stated that he had paid the money to A-2 as directed by A-1. As noted above, the plea of A-2 that he had accepted the money as advance tax has been rightly discarded being contrary to official records. Evidence of PW-2 with regard to proceedings on 28.4.1992 has been clearly established. Evidence of PW-4 the mediator is corroborated by the evidence of PWs 1, 3, 7 and 8. His report was marked as Ext P.13. The same along with the other evidence clearly establish the accusations against both the accused. When money was recovered from the pocket of one of the accused persons a presumption under Section 7 of the Act is obligatory. It is a presumption of law and cast an obligation on Court to operate it in every case brought in Section 7. The presumption is a rebut table presumption and it is by proof and not by explanation which may seem to be plausible. The evidence of PWs 4, 5, 7 and 8 read with the evidence of PW-1 established recovery of money from A-2. A belated and stale explanation was offered by A-2 that the money was paid towards tax. This plea was rightly discarded as there was no tax due and on the contrary the complainant was entitled to some refund. The evidence of PWs 4, 5, 7 and 8 read with the evidence of PW-1 established recovery of money from A-2. A belated and stale explanation was offered by A-2 that the money was paid towards tax. This plea was rightly discarded as there was no tax due and on the contrary the complainant was entitled to some refund. An overall consideration of the materials sufficiently substantiate, in the case on hand the prevalence of a system and methodology cleverly adopted by the accused that the demand will be specified when both the accused were present and thereafter as and when the A-1 puts his signature the party has to meet A-2, at his seat for fixing the seal and making entry in the Register to make the process complete only after collecting the amount already specified by A-1 in A-2's presence. The involvement of both of them in a well planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by prosecution. Further A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala ( 2003 (8) Supreme 804 ). It was noted that such a stand was not taken at the first available opportunity, and the defence was not genuine. In State of U.P. v. Dr. G.K.Ghosh ( AIR 1984 SC 1453 ) it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction.(1983 All LJ 1170).” Further, he has placed reliance on paragraphs 21 and 24 of the judgment of the Hon’ble Supreme Court in M.Narsinga Rao v. State of A.P 2001 CRI.L.J 515, which are reproduced herein below: “21. From those proved facts the Court can legitimately draw a presumption that appellant received or accepted the said currency notes on his own volition. From those proved facts the Court can legitimately draw a presumption that appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that appellant received the said amount. 24. Regarding the second limb of the contention advanced by Shri Nageshwar Rao, learned counsel for the appellant (that it was not gratification which the appellant has received) we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length, (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) Supple 2 JT (SC) 458: (2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: ‘The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted “as motive or reward” for doing or forbearing to do any official act. So that word ‘gratification need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like ‘gratification or any valuable thing’. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, the word ‘gratification’ must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.” Sri Subhani, learned Standing Counsel has also relied on paragraph No.11 of a judgment of the Hon’ble Supreme Court in Raghubir Singh v. State of Haryana (1974) 4 Supreme Court Cases 560, which is reproduced herein below: “The last submission turns on the presumption under Section 4 of the Act. The contention of counsel for the appellant that the presumption available under Section 4 of the Act cannot be raised in the present case since the charge is under section 5 (1) (d), read with Section 5(2), is apparently attractive. But we may notice that even if the statutory presumption is unavailable, courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master like, the ,accused has in his hand a marked,,' currency note made over to him by a passenger whose bedding has been detained by him for which no credible explanation is forthcoming, and he is caught red-handed with the note, is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances. We need not, therefore, scrutinize the substance of the argument based on the inapplicability of Section 4. We also feel that there may be some force in the argument of counsel that the jawan, P.W. 3, might have duped the railway by using a pass for one passenger and carrying a family of wife and, child together. of course, we cannot finally pronounce on this matter for want of sufficient documents. All that we need say is that even assuming that the passenger so tried to dupe the railway, that is no alibi for the Assistant Station Master to help himself to illicit gratification. Nor is the non-examination of the Deputy Superintendent of Police of any consequence in the case.” 11. Besides hearing the learned counsel for the parties, I have minutely examined the entire evidence on record and after going through the same, I am of the considered opinion that the learned trial Judge has committed no error in passing the judgment of conviction and sentence, which require no interference. 12. In the case, PW2, G.Yedukondalu, who was Assistant Executive Engineer in R.W.S Division, Nellore, at the relevant time, had stated that he acted as mediator in the case on the instructions of the Executive Engineer along with one Narayana, Junior Assistant working in the same division. On 02.09.2000, he and Narayana, the second mediator, went to the office of Deputy Superintendent of Police, ACB, Nellore, at 8.15 am, where the Deputy Superintendent of Police called inside his room, where the Dy. S.P, three Inspectors and ACB staff were present there. On 02.09.2000, he and Narayana, the second mediator, went to the office of Deputy Superintendent of Police, ACB, Nellore, at 8.15 am, where the Deputy Superintendent of Police called inside his room, where the Dy. S.P, three Inspectors and ACB staff were present there. Ghouse Basha, the complainant/PW1, was called inside and introduced as complainant in the case. In his evidence, he had stated that the FIR was handed over to him for reading its contents and after reading the same, he as well as the second mediator, Narayana, attested the copy of the FIR, which was marked as exhibit P4. In his evidence, he has stated that in his presence, the Deputy Superintendent of Police, ACB, asked PW (complainant) whether he had brought the demanded bribe amount or not, which was answered in affirmative and he produced five currency notes of Rs.100/-denomination, which were counted and serial numbers of the currency notes and their denominations were noted down in the mediator’s report. The Dy. Superintendent of Police explained the importance of sodium carbonate powder and phenolphthalein powder. One Constable applied phenolphthalein with a cotton swab to the currency notes. The said currency notes were tainted with phenolphthalein powder and a demonstration was made regarding dipping finger in the solution of sodium carbonate and regarding turning of the colour into pink. This witness further stated in his chief that the Dy. S.P instructed PW1/complainant to pay the tainted currency notes to the appellant on his further demand and in case of demand and acceptance, PW1 was asked to give signal by wiping his face with hand kerchief. All those process was completed by 10 am. This witness further identified the sample of sodium carbonate powder and phenolphthalein powder. MO1 was proved to be cover containing sample of Sodium Carbonate Powder and MO2 is cover containing sample of Phenolphthalein powder. This witness accepted that he drafted the mediator report. He also identified the mediator report (pre trap memo), which was marked as exhibit P5. He further stated that exhibit P5 was in his writing and that it was attested by him and other mediators, Dy. S.P and Inspectors. He further deposed that he, Dy. S.P, Inspectors and other mediators, namely, one Sub Inspector, two Head Constables and five Constables started in one jeep, one motor cycle and two scooters and reached Elementary School at Mahatma Gandhi Nagar at 10.30 am. S.P and Inspectors. He further deposed that he, Dy. S.P, Inspectors and other mediators, namely, one Sub Inspector, two Head Constables and five Constables started in one jeep, one motor cycle and two scooters and reached Elementary School at Mahatma Gandhi Nagar at 10.30 am. After they stopped there, the Dy. S.P (PW6) instructed PW1/complainant to go to the newly constructed house of PW1 and pay the bribe in case the appellant demands for bribe and in case of demand and acceptance of bribe, PW1 was asked to give signal. Thereafter, PW1 proceeded to his newly constructed house and this witness and others took vantage positions near the surroundings of the house of PW1. In the examination in chief, PW2 further stated that one person came to the newly constructed house of PW1, he was returning from the house of PW1 and when he was returning from the house of PW1, the Sub Inspector, ACB, stopped the said person at a distance of 100 yards from the house of PW1. This witness further stated that he and other trap members went there. The said person, i.e., Premkumar (appellant) threw away the currency notes on the floor after picking up from his shirt pocket. Sodium Carbonate solution was prepared in two glasses. Both hand fingers of the appellant were subjected to chemical test and that the test yielded positive results. The water for preparation of Sodium Carbonate solution in two glass tumblers were got from the house of one Ismail (not examined) which was located by the side of the road. This witness further stated that the tainted currency notes were gathered and the serial numbers of the said currency notes were compared with numbers already noted in exhibit P5 (pre trap memo) and they tallied with each other. This witness further stated that the Dy. S.P provided alternate shirt to the appellant and after removal of the shirt worn by the appellant, the inner linings of the shirt pocket were subjected to chemical test, which yielded positive result. The shirt was also seized. In his examination in chief, PW2 further stated that the complainant/PW1 was standing at his house and the Dy. S.P called him and questioned him whether he gave the currency notes to the appellant on demand or trusted the currency notes in to his pocket. The shirt was also seized. In his examination in chief, PW2 further stated that the complainant/PW1 was standing at his house and the Dy. S.P called him and questioned him whether he gave the currency notes to the appellant on demand or trusted the currency notes in to his pocket. PW1 answered that on the demand made by the appellant, he paid the currency notes. On examination, this witness was cross-examined at length. However, nothing could be extracted to create any doubt on his evidence. 13. On examination of the evidence of PW2, it is evident that though the complainant/PW1 turned hostile, this witness, in his evidence, has stated that on being called by the Dy. S.P., the complainant came and stated that he paid the currency notes to the appellant on demand and it was not trusted, meaning thereby, that this witness supports the evidence of demand made by the appellant and also he is a witness to explain that the appellant after being stopped by the ACB personnel, picked out the bribed currency notes from his pocket and thrown it on ground. He is also supporting the evidence that when fingers of both hands of the appellant were dipped into the solution of water, the colour of the same turned pink. Accordingly, as per the evidence of PW2 itself, the prosecution has able to establish the case of demand, acceptance and recovery of the bribe amount from the possession of the appellant. 14. PW3, K.N.N.Krishna Kumar is the Assistant Secretary, Vigilance, Municipal Administration and Urban Development Department, A.P. Secretariat, Hyderabad, who has proved the sanction order for prosecution, which has been marked as exhibit P10. Since no dispute has been raised regarding the prosecution sanction, there is no need for discussing his evidence in detail. 15. PW4-PV.Sekharam is one of the member of the trap party and at the relevant time, he was Assistant Sub Inspector of Police, ACB, and he has stated that he was present all through, i.e., during preparation of pre-trap memo, laying trap, and also preparation of post-trap memo. He, in his examination-in-chief, has stated that he received signal from the complainant at 11.35 am. The appellant tried to proceed on his scooter. He also identified the appellant in Court and has stated that the person proceeded on scooter is present in Court, who is the appellant. He, in his examination-in-chief, has stated that he received signal from the complainant at 11.35 am. The appellant tried to proceed on his scooter. He also identified the appellant in Court and has stated that the person proceeded on scooter is present in Court, who is the appellant. In his examination, he has stated that he himself had stopped the scooter near the house of one Ismail and at that time the Dy.S.P., and other raid party members were also coming. He further stated that on observing them, the appellant took out the currency notes from his shirt pocket and thrown on the ground. This witness was cross-examined at length and suggestion was given as if this witness was not present at the time of trap. Learned counsel for the appellant at the time of arguments has argued that PW4 was not reliable witness nor he was present at the time of pre-trap memo or even at the time of trap or preparation of post-trap memo on the ground that neither on pre-trap memo nor on post-trap memo, he put his signature nor his statement under Section 161 Cr.P.C was recorded. However, the said argument was refuted by Sri S.M.Subhani, and he pleaded that it is not necessary that on pre-trap or post-trap memo, signatures of all the riding party members should be obtained. He further submits that since this witness is a police official, there was no requirement for recording his statement rather his presence has been proved by the evidence of other witnesses. Besides hearing learned counsel for both the parties, I have also examined the evidence of PW2 and PW6. The evidence on record makes it clear that there is no reason to raise any doubt regarding the presence of PW4 at the time of trap. 16. PW5-N.Srinivas, who at the relevant time worked as Town Planning Inspector, Nellore Municipality has partly supported the prosecution case. On examination of his evidence, it is evident that the area where the construction work of the complainant was going on was within the jurisdiction of the appellant being Inspector of Nellore Municipality. In his evidence, he has stated that he had verified the records as on the date of his inspection in Municipality and he found that PW1/complainant did not apply for plan. In his evidence, he has stated that he had verified the records as on the date of his inspection in Municipality and he found that PW1/complainant did not apply for plan. He in his chief has stated that after the trap incident, he was placed as incharge of the Accused Officer (appellant) for the above said wards. 17. PW6-K.Thimmappa, at the relevant time was the Dy. S.P., ACB, Nellore Range, Nellore, and he deposed that on 31.08.2000, PW1/complainant came to ACB office, Nellore, and presented a white paper report to him against Prem Kumar, Building Inspector, Municipal Office, Nellore (appellant herein) to the effect that the said Building Inspector was demanding an amount of Rs.1,000/-as illegal gratification for doing an official favour of ‘not resorting to demolition of constructed building and to approve the plan submitted by the complainant pertaining to the house located at Mahatma Gandhi Nagar, Vedayapalem, Nellore’. He categorically stated as to how after the complaint was received, the complaint was verified and pre-trap memo was prepared by PW2 and subsequently trap was laid. He supported the case of prosecution that while, after accepting the bribe money, the appellant was moving on a scooter about 100 meters away of his plot, his scooter was stopped by PW4 and thereafter, the appellant thrown the bribe amount after taking out the same from his shirt pocket. He also states that the fingers of both hands of the appellant were asked to be dipped in the sodium carbonate solution, which turned into pink and also regarding the linings of the shirt dipping into the solution and turning of the colour of the inner linings of the shirt into pink. This witness has stated that after apprehending the appellant, he questioned him. However, the appellant had taken a defence as if the bribe amount was thrusted in his pocket by the complainant. This witness investigated the case, examined the witnesses, obtained prosecution sanction and finally submitted charge sheet against the appellant. On examination of his evidence, there is no reason to raise any doubt on the prosecution case. However, the appellant had taken a defence as if the bribe amount was thrusted in his pocket by the complainant. This witness investigated the case, examined the witnesses, obtained prosecution sanction and finally submitted charge sheet against the appellant. On examination of his evidence, there is no reason to raise any doubt on the prosecution case. Though the appellant had taken a defence that the bribe currency notes were thrusted in his pocket by the complainant/PW1, there is no explanation by him as to how after the amount was thrusted in his pocket near newly constructed house of the complainant/PW1, he moved on the scooter for about 100 meters and only after being stopped, he thrown the currency notes from his pocket. Such circumstance categorically indicates that he had accepted the bribe currency notes and proceeded and only after being stopped, he threw out the same. It is not the defence of the appellant that when his scooter was stopped, the bribe amount was thrusted in his pocket nor it is the case of the prosecution that at the time when the scooter of the appellant was stopped, the complainant/PW1 was present rather, it has come in the evidence that subsequently PW1 was called. In such a situation, there is difficulty in placing reliance on the defence taken by the appellant that the currency notes were thrusted by the complainant/PW1. Sofar as PW7 is concerned, he conducted part investigation and he assisted PW6 in pre-trap and post-trap proceedings. 18. PW1, Shaik Ghouse Basha, is the complainant, who did not support the prosecution case in toto and as such, with the permission, he was cross-examined by the Public Prosecutor. However, in cross-examination, he had accepted certain facts. In paragraph No.2 at page No.10 of the paper book in his evidence he had stated that he went to the ACB office, Nellore, on 31.08.2000 at 6 pm and presented a report. He identified his report, i.e., the complaint, which was presented by him to the ACB officials, which is exhibit P2. He identified his signature on exhibit P2/complaint/report. He further stated that exhibit P2 was drafted by him and it was in his own writing. He identified his report, i.e., the complaint, which was presented by him to the ACB officials, which is exhibit P2. He identified his signature on exhibit P2/complaint/report. He further stated that exhibit P2 was drafted by him and it was in his own writing. On being confronted, he further deposed that exhibit P2 was in his writing and in the said exhibit P2, he has stated that the AO (appellant) demanded him for gratification of Rs.1,500/-initially, the same was reduced to Rs.1,000/-and to pay Rs.500/-on 02.09.2000. He further stated that the Dy. S.P, ACB, asked him to come to his office on 02.09.2000. In 6th line from top at page no.12 of the paper book in his evidence, during cross-examination, he has stated that ‘It is true that I mentioned in Ex.P2 that the A.O demanded for a gratification of Rs.1500/-, the same was reduced to Rs.1,000/-and asked me to pay Rs.500/-on 2.9.2000 that the A.O would come to my house under construction on that day and I accepted to pay the same to the A.O. I also mentioned in my report that I was not inclined to pay bribe to the A.O and then I reported the matter to the DSP, ACB.’ He further, at the same page, stated that ‘initially when he (appellant) demanded, as I (PW1) was not inclined to pay bribe to him, I reported the matter to the DSP, ACB., and that the contents in Ex.P2 are totally correct.’ He further in the same paragraph stated that ‘It is true that the ACB people acted on my report presented by me alleging that the AO demanded for a bribe of Rs.500/-and I produced the said amount of Rs.500/-before the DSP, ACB., and the DSP, ACB would not have filed the case if I did not present Ex.P2 and produced the currency notes of Rs.500/-.’ Similarly, in page No.13 in paragraph No.2, this witness has stated that ‘the A.O (appellant) received money from him counted the same and kept in his pocket. The A.O started on his scooter from his house and he was proceeding and the ACB officials stopped him on his (complainant’s) signal. 19. Of course, PW1 (complainant), with the permission of the Court, was cross-examined, if his evidence is examined in totality, there is no doubt on the point of demand made by the appellant and acceptance of the bribe amount. 19. Of course, PW1 (complainant), with the permission of the Court, was cross-examined, if his evidence is examined in totality, there is no doubt on the point of demand made by the appellant and acceptance of the bribe amount. Learned Standing Counsel for ACB has rightly placed reliance on paragraph No.24 of the decision in Narsing Rao (5 supra). Accordingly, though PW1 was declared hostile, certain facts have come in his evidence, which goes against the defence. On examination of the evidence, which I have discussed herein above, I am fully satisfied that the prosecution has been able to prove the case of demand of bribe by the appellant, acceptance of the bribe amount and also recovery. As such, there is no reason to consider the impugned judgment of conviction and sentence as doubtful. Rather, the prosecution has established its case beyond all reasonable doubt and as such there is no need for interference with the impugned judgment. 20. In the result, the Criminal Appeal stands dismissed. The bail, which was granted earlier to the appellant, stands cancelled and he is directed to surrender before the Court below forthwith, failing which the learned Court below may take appropriate steps for securing the attendance of the appellant for serving his sentence.