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2022 DIGILAW 189 (TS)

M. Shankar v. State of A. P.

2022-03-11

G.RADHA RANI

body2022
JUDGMENT : This Criminal Appeal is preferred by the appellant - sole accused aggrieved by the conviction and sentence passed by the Principal Special Judge for SPE & ACB Cases, Hyderabad vide Judgment dated 06.10.2007 in CC No.33 of 2002, wherein the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of six months for the offence under Section 7 of the Prevention of Corruption Act, 1988, (for short ‘the Act’) and to pay fine of Rs.500/-, in default to pay the fine amount, to undergo simple imprisonment for one month and further sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 13(1)(d) read with Section 13(2) of the Act and to pay fine of Rs.500/-, in default of payment of fine amount to undergo simple imprisonment for one month and both the sentences were directed to run concurrently. 2. The brief facts that are necessary for disposal of the appeal are that the appellant – Accused Officer (hereinafter referred to as ‘AO’) was working as a Medical Officer at Primary Health Centre (PHC), Nizamsagar, Nizamabad District at the time of registration of the case and the complainant worked on deputation in the same PHC as Multi Purpose Health Assistant (Female). Her original place of posting was Narva Sub-Centre, falling under PHC, Nizamsagar. Since there was vacancy of the said post in PHC, Nizamsagar, she was deputed to work as per the orders of the District Medical and Health Officer, Nizamabad District dated 01.07.2000. While she was thus working on deputation in PHC, Nizamsagar under the control of the AO, it was alleged that the complainant requested the AO for giving regular posting to Nizamsagar and the appellant demanded an amount of Rs.8,000/- as bribe for giving regular posting to Nizamsagar. Accordingly, she paid Rs.8,000/- to the AO, but the AO issued orders of posting to one Kum.Farhana as MPHA (F), Nizamsagar. Then the complainant requested the AO to return the amount of Rs.8,000/-. The AO got angry and directed her to report at Narva or opt for voluntary retirement. At the instance of the AO, she applied for voluntary retirement. Later, she changed her mind and requested the AO not to forward the application to DM & HO, Nizamabad. Then, the AO demanded Rs.5,000/- from her as bribe. The AO got angry and directed her to report at Narva or opt for voluntary retirement. At the instance of the AO, she applied for voluntary retirement. Later, she changed her mind and requested the AO not to forward the application to DM & HO, Nizamabad. Then, the AO demanded Rs.5,000/- from her as bribe. Unwilling to pay the demanded bribe amount to the AO, she filed a petition before the DSP, ACB, on 02.07.2001 against the AO. The DSP, ACB, Nizamabad registered a case in Crime No.5/ACB-NZB/2001 under Section 7 of the Act against the AO on 03.07.2001 and during the course of investigation, secured the services of one Sri Ashok Purohit - the Assistant Director, Agriculture, Office of the JDA Nizamabad and Sri Khaleemullah – Sub-Registrar, Nizamabad District, as mediators and after observing necessary formalities laid the trap on 03.07.2001 against the AO. The phenolphthalein test conducted over both the hands of AO yielded positive result and the tainted amount was seized from the possession of the AO, who produced the same by taking out from his left side pant pocket. The portion of the left side pant pocket also got subjected to the chemical test and it also yielded positive result. The Investigating officer examined and recorded the statements of the employees working at PHC, Nizamsagar and got recorded the 164 Cr.P.C. statement of the complainant by the Judicial Magistrate of First Class cum Principal Junior Civil Judge, Nizamabad. After obtaining sanction orders from the Principal Secretary to the Government, Health, Medial and Family Welfare Department of Government of Andhra Pradesh, being competent authority to remove the AO from service, the Investigating Officer i.e. the Inspector of Police of ACB, Nizamabad Range, filed charge sheet against the AO for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act. The Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad had taken cognizance of the above offences and after supplying copies of the documents to the AO and on hearing both sides, framed the charges as follows: 1. That, you being a public servant employed as Medical Officer, Primary Health Centre, Nizamsagar on 3-7-2001 as per your earlier demand you have demanded and accepted bribe of Rs.5000/-from one Smt.P.Kanakaratnam w/o.V.J.Wilson, M.P.H.A. (F), Nizamasagar, Nizamabad Dist. That, you being a public servant employed as Medical Officer, Primary Health Centre, Nizamsagar on 3-7-2001 as per your earlier demand you have demanded and accepted bribe of Rs.5000/-from one Smt.P.Kanakaratnam w/o.V.J.Wilson, M.P.H.A. (F), Nizamasagar, Nizamabad Dist. as motive or reward for doing official favour i.e., for not forwarding her voluntary retirement application to the DM & HO and, thereby you have committed offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. 2. That, you being a public servant as mentioned in charge No.1 on 03.07.2001 by corrupt or illegal means or otherwise abusing your position as public servant obtained for yourself a pecuniary advantage to an extent of Rs.5,000/- from one Smt. P.Kanakaratnam w/o. V.J.Wilson, M.P.H.A. (F), Nizamsagar, Nizamabad Dist., as illegal gratification other than legal remuneration for doing official favor i.e., for not forwarding her voluntary retirement application to the DM & HO and thereby you have committed offence specified U/s.13(1)(d) of the Prevention of Corruption Act, 1988 punishable U/s.13(2) of the said Act and within my cognizance. 3. The AO pleaded not guilty. The prosecution got examined PWs.1 to 7 and got marked Exs.P.1 to P.15 and MOs.1 to 8 on its behalf. The AO got examined DWs.1 to 4 and got marked Ex.D1, a portion of the 161 Cr.P.C. statement of PW.1 on his behalf. A document was marked as Ex.X-1 by the Court. After considering the oral and documentary evidence on record and the material objects produced by both the parties, the learned Principal Special Judge found the appellant – AO guilty for the above charges and convicted and sentenced him as stated above. 4. Aggrieved by the said conviction and sentence, the AO preferred this appeal contending that the findings of the court below were vitiated by errors apparent on the face of the record and due to mis-reading of evidence, resulted in erroneous and unsustainable findings. The court below had taken a one sided and biased approach against the appellant only to favour the prosecution ignoring the entire defence resulting in gross miscarriage of justice. The court below erred in believing the solitary and uncorroborated evidence of PW.1 which was tainted by ill-motive. The court below had taken a one sided and biased approach against the appellant only to favour the prosecution ignoring the entire defence resulting in gross miscarriage of justice. The court below erred in believing the solitary and uncorroborated evidence of PW.1 which was tainted by ill-motive. The court rejected the plea of the appellant that PW.1 paid the amount to him towards clearance of hand loan which was taken by her earlier and falsely implicated him making it appear that she had paid bribe. There were discrepancies and contradictions in the evidence of PW.1. The evidence of PWs.3 and 4 and the evidence of the defence witnesses were totally ignored by the court. The court placed implicit reliance on the evidence of PWs.2 and 5, who were interested in the success of the trap. The court erred in not considering the motive of PW.1 to involve the appellant inspite of clinching evidence beyond reasonable doubt. The court failed to see that the complainant and the prosecution did not come forward with clean hands and deliberately suppressed the facts and truth. The AO not only established his innocence by preponderance of probabilities. The court should have acquitted the AO. It erred in misapplying the decisions referred by it and failed to consider any of the decisions cited by the defence. The court erred in treating the evidence of the complainant and mediators as substantive evidence ignoring the evidence of eye-witnesses on record and prayed to allow the appeal. 5. Heard the learned counsel for the appellant – AO and the learned Special Public Prosecutor for ACB cases. 6. Learned counsel for the appellant - AO submitted that there was no official favour pending with the AO. It was the DM & HO, who could transfer the complainant or accept/refuse the voluntary retirement application of the complainant. The evidence of PW.1 would suffer with several discrepancies. PW.1 had not stated in her complaint that the AO demanded bribe for not forwarding her voluntary retirement application to the Superiors. Her testimony was full of contradictions, omissions, interested and self serving as she held a grouse against the AO and therefore, required corroboration. The evidence of PW.1 would suffer with several discrepancies. PW.1 had not stated in her complaint that the AO demanded bribe for not forwarding her voluntary retirement application to the Superiors. Her testimony was full of contradictions, omissions, interested and self serving as she held a grouse against the AO and therefore, required corroboration. There was no corroboration to the evidence of PW.1, as the mediator, who was directed to follow her as a shadow witness stated that he remained at the entrance door of the room of the AO in the Primary Health Centre, whereas PW.1 entered inside the room of AO. The evidence of PWs.2 to 4 and DWs.1 to 4 would prove that there existed a swing door to the entrance of the room of the AO which would automatically close and block the hearing of PW.2 as such, the evidence of PW.1 with regard to demand by AO was not corroborated by the evidence of PW.2 and hence not proved. Mere recovery of tainted money was not enough to draw a presumption under Section 20 of the Act. The court was required to consider the explanation offered by the AO. All the witnesses, PWs 3, 4 and DWs.1 to 4 had clearly stated that the complainant had taken loan of Rs.5,000/- from the AO and returned it on the said date of trap, which the appellant accepted and kept in his pant pocket. At that juncture, the ACB officials entered in his chambers and recovered that money after conducting the tests. The statement of the AO as stated by him was not recorded in the post-trap proceedings. The AO was forced to be half naked and was taken away from his room to the room of the Senior Assistant and was kept there till the proceedings were over. The Court committed an error in observing that the AO had not substantially stated during the post trap proceedings about the complainant taking any loan from him, as the ACB officials had not recorded the same as evident from the statements of the above witnesses. The court also erred in observing that AO was kept in some room for some time as the words “for some time” was not spoken to by PW.2. The court also erred in observing that AO was kept in some room for some time as the words “for some time” was not spoken to by PW.2. He further submitted that the original application for voluntary retirement applied by PW.1 was stuck up in the case and she continued in service and was promoted as Mandal Supervisor by the date of her evidence and it was the AO who was dismissed from the service which would show that she had achieved her motive of entangling the AO in a criminal case and prayed to allow the appeal by setting aside the conviction and sentence recorded against the AO by the trial court. 7. The Special Public Prosecutor for ACB supported the judgment of the trial court and submitted that the trial court rightly assessed and appreciated the evidence of the witnesses in a proper perspective and recorded the conviction and sentence which would not need any interference by this Court and prayed to dismiss the appeal. 8. Now the point for consideration is whether the prosecution proved its case against the appellant – AO for the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Act beyond reasonable doubt and whether the judgment of the trial court is correct, legal and proper? 9. Perused the evidence of the witnesses in the light of the contentions raised by both the counsel. 10.1. The complainant was examined as PW.1. She stated in her evidence that she worked as Multi Purpose Health Assistant (F) at Narva Sub Centre in Nizamsagar Mandal of Nizamabad District and since one of the Nurse at PHC, Nizamsagar was transferred, she was deputed in her place at PHC, Nizamsagar during the year 2001. The AO was working as Government Medical Officer at PHC, Nizamsagar during the said period she requested him to give a regular posting to her at PHC, Nizamsagar. For that, the AO demanded Rs.8,000/-. Accordingly, she paid Rs.8,000/- to the AO in the month of April 2001. Inspite of paying the said amount to the AO, he did not get her posted in the regular post at PHC, Nizamsagar. In the month of May, 2001, one Farhana was freshly appointed and posted at PHC, Nizamasagaras MPHA (F). Then, she asked the AO as to why he did not give regular posting to her. Inspite of paying the said amount to the AO, he did not get her posted in the regular post at PHC, Nizamsagar. In the month of May, 2001, one Farhana was freshly appointed and posted at PHC, Nizamasagaras MPHA (F). Then, she asked the AO as to why he did not give regular posting to her. The AO asked her to go back to Narva centre. Then she asked the AO to return back the said amount of Rs.8,000/- paid by her. But, he did not pay back the said amount. Meanwhile, the Senior Assistant brought some papers relating to her voluntary retirement and obtained her signatures therein by force. Subsequently, the appellant asked Rs.5,000/- to see that her voluntary retirement was cancelled. The AO also stated to her that in case, the said amount of Rs.5,000/- was not paid to him, she would be receiving voluntary retirement orders and had to leave her service. Since she was not willing to pay any such amount to AO, she went to the ACB office, Nizamabad on 02.07.2001 and submitted a written complaint to DSP. 10.2. She further stated about the DSP, ACB, instructing her to come with the proposed bribe amount of Rs.5,000/- on 03.07.2001 at about 6.00 AM and she attending the office of the DSP, ACB, and the procedure employed and handing over the tainted currency notes to her by keeping them in a plastic carry bag and instructing her not to pay the said amount to AO except on his further demand and also instructing her to relay a signal by wiping her face with a kerchief, in case the AO demanded and accepted the tainted currency from her. She further stated that one of the mediators, by name, Ashok Purohit was asked to accompany her and to watch the events between her and AO and about drafting the pre-trap proceedings. 10.2. With regard to the occurrence of events during the trap, she stated that at about 8.00 AM on 03.07.2001, she along with mediators, DSP and other trap party members proceeded in a car from the office of DSP and reached Nizamsagar by 12.30 hours. She along with the mediator Ashok Purohit proceeded to PHC, Nizamsagar and found AO in his room. She approached the AO whereas, LW.2 – Ashok Purohit remained at the entrance door of the room of AO. She offered namaskarams to AO. She along with the mediator Ashok Purohit proceeded to PHC, Nizamsagar and found AO in his room. She approached the AO whereas, LW.2 – Ashok Purohit remained at the entrance door of the room of AO. She offered namaskarams to AO. On seeing her, he asked whether she brought the demanded amount of Rs.5,000/- on which she placed the said cover in his presence by opening it and then AO picked up the said tainted currency notes from carry bag, counted the said amount by using his both hands and thereafter kept the said tainted amount in his left side wearing pant pocket and assured her that he would attend to her work regarding cancellation of her voluntary retirement. Then, she came out of the room of AO and relayed the pre-arranged signal to the trap party. After receiving the signal, the trap party led by the DSP rushed into the room of AO. After one and half hours or two hours, she was called inside the room of AO and was asked to depose her version. The same was incorporated in the proceedings. Subsequently, her statement was recorded in the office of the DSP, ACB, Nizamabad on 08.07.2001. The same was incorporated in the proceedings. Thereafter, she was summoned to attend before the Magistrate at Nizamabad on 21.07.2001 and her 164 Cr.P.C. statement was recorded by the Magistrate. 10.3. In her cross-examination by the learned defence counsel, it was elicited that DM & HO was the competent authority to give her regular posting to PHC, Nizamsagar and she did not make any application to DM & HO during the tenure of AO for her regular posting at PHC, Nizamsagar, she did not make any application to DM & HO or Dy.DM & HO for cancellation of her relieving orders to Narva, to show that the AO had no role in the said matters, which was to her knowledge. Some contradictions were elicited that in the complaint marked as Ex.P.1, she stated about applying leave for five days and before expiry of leave, AO called her and forcibly obtained her signatures on voluntary retirement forms but the voluntary retirement application marked as Ex.P.2 was dated 22.05.2001 which was prior in time than her leave applications dated 11.06.2001 and 28.06.2001, marked under Ex.P.9, to prove that the statement given by PW.1 that AO called her before expiry of leave and obtained voluntary retirement application by force was false. It was also elicited that in her chief examination, she stated about one Senior Assistant obtaining her signatures on voluntary retirement forms by force but she did not refer the name of AO, the name of the Senior Assistant who obtained her signatures by force was on Osman, she did not complain either to DM & HO or Dy.DM & HO that the Senior Assistant or AO obtained her signatures on voluntary retirement forms by force and had not submitted any application to them not to act upon her voluntary retirement forms. 10.4. It was also elicited that she was having a mentally derailed daughter, and her son who was studying in school and her husband was an unemployee and they were all dependent on her and her earnings, in her leave application Ex.P.9 she mentioned that she was suffering from ill health and joint pains. It was suggested to her that she was financially weak and had no capacity to pay such amounts of Rs.8,000/- and Rs.5,000/- as bribe and that she borrowed Rs.5,000/- from the AO to meet her medical expenses and the expenses of her daughter for her treatment at Hyderabad, which was denied by her. She also denied the suggestion given by the learned defence counsel that the appellant asked her to repay Rs.5,000/- to him in the presence of staff members on several occasions saying that after voluntary retirement she would not be available to him. 10.5. A portion of her 161 statement, wherein it was stated that she tried to keep the tainted amount in her jacket and as it was not possible, kept the same in a plastic carry bag, was marked as Ex.D-1. How the said omission is useful to the defence is not known. 10.5. A portion of her 161 statement, wherein it was stated that she tried to keep the tainted amount in her jacket and as it was not possible, kept the same in a plastic carry bag, was marked as Ex.D-1. How the said omission is useful to the defence is not known. She denied that there was a spring door to the room of the AO, and that on the day of trap she sat for some time in the staffroom and informed all the staff members who were present there that she was repaying Rs.5,000/- to the AO. It was also elicited that she had grouse against the AO for posting Farhana at PHC, Nizamsagar pending her request and for relieving her from the said place, but denied that on account of the said grouse, and as the AO demanded to repay the loan of Rs.5,000/- in the presence of several staff members on several occasions, she foisted a false case against the AO and falsely implicated him in the case. 11. Learned counsel for the appellant – AO relied upon the judgment of the Hon’ble Apex Court in State through CBI v. Anup Kumar Srivastava, 2017 (3) ALT (Cri) 56 (SC), Krishan Chander v. State of Delhi, 2016 (3) SCC 108 , C.M. Sharma v. State of AP, 2012 (2) ALT (Cri) 147 (SC), Piara Singh v. State of Himachal Pradesh, 2014 (1) ALT (Cri) 4 (SC), B. Jayaraj v. State of A.P., (2014) 12 SCC 55, P. Satyanarayana Murthy v. District Inspector of Police, State of A.P., (2015) 10 SCC 152 , N. Sukanya v. State of Andhra Pradesh, 2016 (1) SCC 713 , M.R. Purshothamv. State of Karnataka, Criminal Appeal No.1578 of 2011 and of the judgments of the High Court of Andhra Pradesh in Sanga Reddy Ananda Reddy v. State of A.P., rep. by its District Inspector of Police, 2011 (2) ALT (Cri) 217 AP, The State, represented by Inspector of Police ACB Anantapur v. B. Chandrashekhar, Criminal Appeal No.1207 of 2006 on the aspect that the proof of demand of an illegal gratification is the gravamen of the offence under Section 7 and Section 13 (1) (d) (i) & (ii) of the Prevention of Corruption Act. In B. Chandrashekhar’s case (10 supra) it was held that: “20. In B. Chandrashekhar’s case (10 supra) it was held that: “20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.” 12. Learned counsel for the appellant also relied on the decision of the Hon’ble Supreme Court in Mukhtiar Singh v. State of Punjab, 2017 (1) ALT 27 (DN) (SC) on the aspect that: “The complainant as an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. Mere recovery of currency notes itself does not constitute the offence unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe for the court to draw presumption under Section 20 of the Act.” 13. He also relied upon the judgment of the High Court of Telangana in B. Suresh Babu v. State of A.P., rep. by Inspector of Police, CBI, 2010 (1) ALT (Cri) 121 AP on the aspect that: “when a case rests upon the evidence of a solitary witness, the law is well settled that it must be unimpeachable, true, trustworthy, free from doubt and must be put in the category of ‘wholly reliable’. When the evidence of witness is neither wholly reliable nor wholly unreliable, then such evidence requires corroboration.” But, in the present case, there is nothing on record to consider that the complainant – PW.1 is an interested and partisan witness. She clearly stated about the demand and voluntary acceptance of illegal gratification by the AO knowing it to be bribe in her evidence. The circumstances of the hands of the AO turning pink and his pant pocket also testing positive would prove that the AO knowing fully well that it was an illegal gratification received the same and kept it in his pant pocket. The twin requirements of demand and acceptance of illegal gratification are proved in the case on hand. In almost all the above cases relied by the learned counsel for the appellant, the complainant turned hostile and as such, the Hon’ble Apex Court held that both the demand an acceptance are sine qua non to prove the offences under Sections 7 and 13 (1) (d) of the PC Act and mere recovery of money itself is not sufficient to draw a presumption under Section 20 of the Act. 14. He relied upon the judgment of the High Court of Orissa in Debananda Das v. State of Orissa, 2012 (1) ALT (Cri) 14 (NRC) on the aspect that the complainant being an educated and a journalist could have duly brought to the notice of higher authorities regarding the illegal demand made by the accused despite their instructions to provide telephone connection. But, there was no such complaint made before the departmental authorities like the SDO (PW.1) or JTO. As such, the complainant was interested to see the success of the prosecution case as he bore grudge against the accused and it was a crucial factor and was the reason for concoction of a false story using the excuse of repayment of the loan as a means of reaching the accused on the vital day. Therefore, it would be unsafe to accept the evidence of the complainant without independent and sufficient corroboration on material aspects. 15. Just because the complainant stated that she had a grouse against the AO for posting another woman at PHC, Nizamsagar, pending her request, it cannot be considered that she had concocted a false story. 16. The mediator and the shadow witness, by name, Ashok Purohit, the Assistant Director of Agriculture, Nizamabad at the relevant time was examined as PW.2. PW.2 stated about the pre-trap and post-trap proceedings. About the occurrence of events at the time of trap, he stated that at about 1:00 PM, he along with PW.1 went to the room of AO in PHC Nizamsagar, he remained at the entrance door of the room of AO, whereas PW.1 entered inside the room. She had discussion with AO for about two or three minutes. Thereafter, she picked up tainted amount from the carry bag and handed over the same to AO, who received the said amount with his right hand, counted the amount by using his both hands and thereafter kept the said tainted amount in his left side wearing pant pocket and that he witnessed the said incident. He stated that thereafter PW.1 came and relayed the pre arranged signal to the trap party. Immediately, he along with the trap party rushed into the room where AO was sitting. 17. Thus, PW.2 stated that he witnessed the incident of PW.1 handing over the tainted amount to AO, and AO receiving the same, counting and keeping it in his left pant pocket. In his cross examination he stated that the chambers of AO was having single door and it was a spring door. It was suggested to him that he was sitting with DSP and other mediator in the jeep till PW.1 relayed pre-arranged signal which was denied by him. In his cross examination he stated that the chambers of AO was having single door and it was a spring door. It was suggested to him that he was sitting with DSP and other mediator in the jeep till PW.1 relayed pre-arranged signal which was denied by him. PW.2 stated that when the DSP questioned AO whether he had taken any amount from PW.1, AO did not give any answer and remained silent. He stated about DSP preparing sodium carbonate solution in two glass tumblers and asking AO to rinse his both hand fingers in the solution and when AO did so, the solution turned pink. He further stated that the DSP again questioned AO, whether he demanded and accepted any money and what all AO stated was incorporated in the post trap proceedings. He stated about AO producing the tainted currency notes from his left side pant pocket and that they verified the serial numbers of the currency notes with the serial numbers described in pre trap proceedings, compared and found them to be tallied and DSP seized the said currency of Rs.5000/- as MO.5 in their presence. He further stated about the DSP subjecting the inner lining of left side pant pocket of AO to sodium carbonate solution test, by providing alternate wearing apparel and that the test yielded positive result. He stated about the DSP securing the presence of one Osman, Pharmacist and seizing the file pertaining to PW1 marked as Ex. P6 and the attendance register marked as Ex.P7, the voluntary retirement application of PW.1 dated 22.05.2001 as Ex. P2, the copy of the same as Ex. P2(a) and the covering letter as Ex. P2(b). He stated about the DSP calling PW.1 inside, examining her and incorporating the same in post-trap proceedings, about the DSP drafting the rough sketch of the scene as Ex.P8 and obtaining his signatures on all the documents. He stated about seizure of the leave letters dated 11.06.2001, 28.06.2001 pertaining to PW1 marked as Ex.P9. 18. In his cross examination, it was suggested to him that AO stated to DSP in his presence that PW.1 paid Rs.5,000/- to him representing that it was towards the repayment of loan taken by her earlier and the said version of AO was not incorporated in the post trap proceedings, which was denied by him. 18. In his cross examination, it was suggested to him that AO stated to DSP in his presence that PW.1 paid Rs.5,000/- to him representing that it was towards the repayment of loan taken by her earlier and the said version of AO was not incorporated in the post trap proceedings, which was denied by him. He admitted that he acted as mediator in three cases, including the present case and the other two cases were earlier to the present one. 19. Mohd. Osman, the Senior Asst. in PHC Nizamsagar at the relevant time was examined as PW3. Mohd. Mujubuddin, a Pharmacist in PHC Nizamsagar was examined as PW.4. Both these witnesses turned hostile and not supported the case of prosecution. They were cross examined by the Special Public Prosecutor and they denied stating before the Inspector of Police, ACB, Nizamabad as in Ex.P12 and P13. 20. During the cross examination of PW.3 by the learned defence counsel, he stated that on 03.05.2001, PW1 borrowed Rs.5,000/- from AO to meet the medical expenses in connection with her aliment and of her daughter’s aliment. On 25.05.2001 she applied for voluntary retirement on her own accord. Neither PW3 nor AO obtained her signatures on voluntary retirement papers by force, Ex.P2 voluntary retirement application submitted by PW.1 was having endorsement of AO in green ink, AO dictated a covering letter addressing the same to DM & HO and enclosed it to Ex.P2. He made entry of dispatch of Ex.P2 and covering letter in the concerned outward register (Ex.X1) for the year 2001, but did not dispatch the said voluntary retirement application though he made such an entry. He stated that PW.1 submitted Ex.P2 application with two extra copies thereof, with an intention to dispatch it on 26.05.2001, he did not dispatch the said letter and covering letter. PW.1 approached him on 26.05.2001 and 27.05.2001 and requested him not to dispatch the said voluntary retirement application and the covering letter and that she would personally take the same and meet the DM & HO. On 28.05.2001, PW.1 approached him and requested him to furnish the copies of voluntary retirement application and the covering letter and he gave the said copies to her and obtained her signature. 21. On 28.05.2001, PW.1 approached him and requested him to furnish the copies of voluntary retirement application and the covering letter and he gave the said copies to her and obtained her signature. 21. He further stated that since PW.1 applied for voluntary retirement, AO asked her to repay the loan of Rs.5000/- taken by her in his presence and also in the presence of staff members several times and inspite of it, PW.1 did not repay the said loan to AO till the date of trap. He stated that PW.1 applied for casual leaves from 12.06.2001 to 16.06.2001 and from 28.06.2001 to 30.06.2001. He stated that the date of trap on 03.07.2001 was a salary payment day and also staff meeting day at the PHC. On the said date, PW.1 came to the staff room, talked to all the staff members and from there she went to the Pharmacist to handover her CL application for that day and from there went to the chambers of the AO. He stated that before going into the chambers of AO, PW.1 informed all of them that she was going to repay the said loan to AO, nobody accompanied her when she went to the chambers of AO. He stated that there was only one door that was spring door to the room of AO, which automatically would close when one entered into the said chambers. 22. Thus, the defence of AO was all stated through this witness. His evidence that no others accompanied PW.1 into the Chambers of AO to see whether there was any chance of overhearing the conversation between PW.1 and AO and PW.1 informing them that she was going to repay the loan to AO had to be weighed to see which party is speaking truth and which party is speaking false. 23. PW.3 further stated that within a short time of PW.1 coming out from the chambers of AO, several people rushed into the chambers of AO and AO stated to the ACB officials loudly that he did not demand and accept any bribe from PW.1 and PW.1 representing that she was repaying the loan obtained from him, gave the amount to him. Thereafter, the AO was brought into his room and retained there itself till the ACB officials left the PHC. Thereafter, the AO was brought into his room and retained there itself till the ACB officials left the PHC. He stated that the ACB officials came to him and took the personal file of PW.1, attendance Register and other documents, from him. 24. In his further cross-examination by the Special Public Prosecutor, he stated that he was present when AO gave Rs.5,000/- to PW.1 and it was given on 03.05.2001 at 11.20 AM at PHC, Nizamsagar. He stated that AO did not so admitted that there was an endorsement on Ex.P.10 that he read the contents and then signed. He also further admitted that neither he nor any of the other staff members submitted any representation to their Superiors or to the Superior Officials of ACB that PW.1 borrowed the said loan and that the same was repaid on the date of trap and that a false case was foisted against AO. When he was questioned about whether Ex.P.2, voluntary retirement application and Ex.P.2(b) were in the attendance register Ex.P.7 or not when the ACB Inspector took the attendance register from him, he answered that he did not remember the same. He denied that he retained voluntary retirement application and covering letter on the instructions of AO. 25. Learned counsel for the appellant relied on the judgment of the High Court of Andhra Pradesh in State of A.P. represented by Inspector of Police v. R. Krishnaiah, 2013 (2) ALT (Cri) 118 AP on the aspect that when there was no official favour pending with the respondent on the alleged date of trap and when there is direct or substantial evidence showing the respondent demanded bribe from PW.1, alleged recovery of the currency notes or the chemical tests yielding positive result is of no consequence. He relied upon the judgment of the High Court of Andhra Pradesh in State, represented by the Inspector of Police, ACB, v. D. Anjaiah, 2014 SCC Online AP 1099 wherein also it was held that when the evidence would show that no official favour was pending with AO to demand any bribe, the argument of AO that he was really a bribe monger, he would have kept the complaint pending without referring it as civil dispute for soliciting bribe is logically quite appropriate. 26. 26. But, the evidence of PW.3 would disclose that the official favour of not dispatching the voluntary retirement application of Pw.1 was kept pending though there was an entry made in the outward register since 25.05.2001 even after the endorsement of AO on the application and a covering letter was also addressed by the AO. 27. Mohd. Mujubuddin - PW.4 also stated in a similar manner as that of PW.3. In his cross examination by the defence counsel, PW.4 stated that on 03.05.2001, PW.1 borrowed Rs.5,000/-from AO. After PW.1 applied for voluntary retirement, AO asked PW.1 three or four times in their presence to repay the loan and till the date of trap, PW.1 did not repay the loan to AO. On the date of trap, PW.1 informed all the staff members including him that she was repaying the said loan of Rs.5,000/- to AO. He also stated that there was only one door i.e. spring door to the chamber of AO and it would automatically close when one entered into the said room and nothing was visible to the outsiders what was happening inside the room when the door was closed. He also stated that he heard the voice of AO from his room that he did not take any bribe from PW.1 and she repaid the loan amount borrowed by her from him after ACB officials entered into the room of AO. 28. Thus, though PWs.3 and 4 stated that one could not hear from the room of AO when the spring door automatically closed, stated that they heard the voice of AO from the room that he did not take any bribe amount from PW.1 and what was paid by her was the loan amount borrowed by her from him. The evidence of these witnesses cannot be believed as they were working directly under the control of AO and when AO himself had not stated in his explanation recorded by the ACB officials immediately after the trap that the amount given by PW.1 was towards repayment of loan and PWs.3 and 4 also had not stated about the loan theory in their statements recorded by the ACB officials under Section 161 Cr.P.C. No one prevented them from saying so, if it was true. PW.3 had also attested on the panchanama affirming the truth of its contents. PW.3 had also attested on the panchanama affirming the truth of its contents. Hence, he cannot take a different stand now saying that he signed on the said statement without going through the contents. No documentary evidence was there with regard to PW.1 borrowing any amount from the AO. The oral and interested evidence of these witnesses cannot be believed when there was contrary evidence of the complainant, who stated that AO demanded bribe and received the same, which was corroborated by the circumstances of his hands turning pink, when sodium carbonate solution test was conducted. AO also had not disputed that the tainted amount was not recovered from him. The only defence he took was that he received the same as repayment of loan from PW.1. But the said defence was not taken by him immediately after the trap during the post trap proceedings but had taken by him only during the trial. Hence, it can be considered as an afterthought. Without any documentary evidence relating to the earlier loan transaction, any amount of oral evidence to the said extent is not convincing. 29. The evidence of the defence witnesses examined as DWs.1 to 4 is also similar to the evidence of PWs.3 and 4. All these witnesses are working as Multi Purpose Health Assistants (Female) at various sub-centres under the control of AO and their evidence is similar to the evidence of PWs.3 and 4. For the same reasons, as discussed above, their evidence also cannot be believed. None of these witnesses had given any representation to the Union leaders or DM & HO or District Collector, Nizamabad or to the Superior ACB Officials stating immediately that the amount paid by PW.1 was towards discharge of loan but not the bribe amount. Their evidence that AO was humiliated, made to wear towel and he was taken to the room of PW.3 and was made to sit there till 7.00 PM till the ACB officials completed the post-trap proceedings and not recorded the version of the AO as stated by him but obtained his signatures by force, cannot be believed as AO also had not given any complaint either to the Superior ACB officials or to the Court with regard to the said aspects. 30. 30. Learned Special Standing Counsel relied upon the judgment of the Hon’ble Apex Court in State of Maharashtra v. Narsing Rao, AIR 1984 SC 63 wherein guidelines for appreciation of evidence in a trap case are reiterated by the Hon’ble Supreme Court as follows: “It may not be proper to magnify every minor detail or omission or throw even a shadow of doubt in the prosecution evidence on that score unless the doubt is reasonably justified. Such a harsh standard may not be the correct judicial approach in a trap case. In such a contingency the prosecution may find it difficult to establish any case.” 31. He relied upon another judgment of the Hon’ble Apex Court in R.S. Nayak v. A.R. Antulay, AIR 1985 SC 2045 wherein it was held that: “the provisions must be construed in such a manner which would advance the remedy and suppress the mischief which is intended to be curbed. That dos not mean that whatever doubt is there the evidence should be accepted. In a proper case the court can reject the prosecution case and accept the defence.” 32. He relied upon the judgment of the High Court of Kerala in P. Krishna Pillai v. State of Kerala, 1989 (2) Crimes 700, wherein it was held that: “By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded for his reasons are numerous. He may have to make visits and wait on many officers. He will have to produce his own currency notes for arranging the trap. He has to comply with several formalities and give several statements. He will have to accompany the raiding party and play the main role. During all these periods he will have to forego his avocations and earnings. He has to attend court during trial and face searching cross examination. If the explanation offered by the accused is accepted he may have to face the humiliation of being condemned as a person who tried to falsely implicate a public servant. He may have to face the wrath of the department's officials also. No one would therefore be too anxious to face such an ordeal unless he is oppressed by a feeling of being wronged and finds the solution to be beyond endurance. He may have to face the wrath of the department's officials also. No one would therefore be too anxious to face such an ordeal unless he is oppressed by a feeling of being wronged and finds the solution to be beyond endurance. But that does not mean that the Court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go by to the rules, the official refused to yield. In the case of such officers who are seen from the evidence to be honest and sincere and having good antecedents one may expect much safer and superior evidence to justify an, inference of having been implicated by a dishonest intention. 33. He also relied upon the judgments of the Hon’ble Apex Court in Sudip Kumar Sen Alias Biltu v. State of West Bengal and others, (2016) 3 SCC 26 on the aspect that the court may act on the testimony of a single witness uncorroborated provided that the testimony of single witness is found reliable. The Hon’ble Apex Court held that there was no impediment for recording conviction basing upon an uncorroborated testimony of a solitary witness, if it is reliable. 34. He also relied upon the judgment of the Hon’ble Apex Court in Bhagwan Jagannath Markad and others v. State of Maharashtra, (2016) 10 SCC 537 on the aspect of burden of proof and appreciation of the evidence of witness. The Hon’ble Apex Court held that: “18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions – (i) when a person feels absolutely certain of a fact – “believe it to exist” and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. Section 3 of the Evidence Act refers to two conditions – (i) when a person feels absolutely certain of a fact – “believe it to exist” and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to “separate the chaff from the grain”. The degree of proof need not reach certainty but must carry a high degree of probability. 19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the court to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a ‘partisan’ or ‘interested’ witness may lead to failure of justice. It is well known that principle “falsus in uno, falsus in omnibus” has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness. 20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.” 35. Learned counsel for the appellant relied upon the judgments of the Hon’ble High Court of A.P. in Addala Subramanyam v. State, rep. by Inspector of Police, ACB, Vishakhapatnam, (2013) 1 ALD (Cri) 934, Gajula Pandu Ranga Rao v. State rep. by Inspector of Police, ACB, 2011 (3) ALT (Cri) (AP) and of the High Court of Telangana in Gundappa Das v. State, rep. by Inspector of Police, ACB, Hyderabad, 2015 (3) ALT (Cri) 464 (AP) on the aspect that defence can establish its stand through preponderance of probabilities and not by proving beyond reasonable doubt. 36. But as discussed above, the evidence of Dws.1 to 4 and PWs.3 and 4 is not convincing to believe the theory of loan transaction by the AO. Multiplication of oral evidence of witnesses would not make it believable. 37. 36. But as discussed above, the evidence of Dws.1 to 4 and PWs.3 and 4 is not convincing to believe the theory of loan transaction by the AO. Multiplication of oral evidence of witnesses would not make it believable. 37. PW.5 was the DSP, ACB, Nizamabad, who received the written complaint from PW.1, registered the same, conducted the trap proceedings and stated about the same in his examination before the Court. He stated that on his instructions, his Inspector recorded the statements of PWs.4, 5 and Farhana Begum examined as DW.3 and one G. Gangaram. He admitted in his cross-examination that PW.2 acted as mediator in two other ACB cases. Just because PW.2 acted as a mediator in other cases, he being the Government Servant, his evidence need not be disbelieved. 38. PW.6 is the Section Officer who spoke about sanction issued by the Principal Secretary to Government to prosecute the AO and her evidence was formal in nature. In her cross-examination, she stated that DM & HO alone was competent to accept/reject the voluntary retirement application of PW.1 and also to give regular post at any place or transfer her to any place. But, the contention of the complainant – PW.1 was that AO asked her to pay Rs.5,000/- for not forwarding the voluntary retirement application which was obtained from her by force. AO might not be the person who would accept or reject the voluntary retirement application of PW.1 or the person responsible to give her regular posting or to transfer her to any place but he was the immediate controlling officer to her and who made her to believe that he could see that a regular posting was given to her at PHC Nizamsagar and when the same could not happen, as per her evidence, he obtained the voluntary retirement application from her by force and directed her to go on leave. Voluntary retirement application signed by her, endorsed by the AO on 25.05.2001 was not forwarded to DM & HO immediately and was kept pending even after the same was noted in the dispatch register strengthens the case of the complainant that the official favour of not forwarding her application was pending with the AO. 39. PW.7 is the Sub-Inspector, who filed charge sheet after recording the statements of the witnesses PWs.3, 4, LW-6, Farhana Begum (DW.3) and LW-7 Gangaram. 39. PW.7 is the Sub-Inspector, who filed charge sheet after recording the statements of the witnesses PWs.3, 4, LW-6, Farhana Begum (DW.3) and LW-7 Gangaram. His evidence also would disclose that he got the 164 Cr.P.C. statement of PW.1 recorded by the Additional Judicial Magistrate of First Class, Nizamabad by filing a requisition before the Chief Judicial Magistrate and also obtained sanction orders from the Government and filed the charge sheet. 40. Thus, on considering the evidence of the witnesses, even if PW.2 is considered as not over heard the conversation between AO and PW.1 immediately before the trap, there is nothing on record to disbelieve the evidence of PW.1, whose evidence is consistent and trustworthy. 41. The evidence of PW.1 is supported by the evidence of PW.2 and PW.5 on all material aspects in conducting the trap and in recording the contemporaneous pre and post trap proceedings and the happening of the events during the said proceedings. When the Accused Officer had not stated about the loan theory in the post-trap proceedings and had signed on the same without any complaint to his superior officials or to the superior officials of ACB immediately thereafter, and kept silent till the time of trial, his evidence in the said regard cannot be considered as genuine. The very fact of the seizure of the tainted currency notes from the AO would prove that he demanded and received the amount. The same was corroborated by the evidence of PW.1. All these prove that the trap was successfully laid by the ACB officials. PW.1 stood strong in her evidence and stated about the demand and acceptance of bribe from the AO. The evidence of PW.1 inspires confidence and the trial court rightly placed reliance on the evidence of PW.1. The appellant failed to substantiate the defence theory even by the standard of preponderance of probability. Placing reliance on the evidence of PW.1 and the admitted fact of the appellant receiving the amount from PW.1, the trial court rightly believed that the prosecution proved the presumption envisaged under Section 20 of the Act against the appellant to the effect that he received the said amount as illegal gratification for doing official favour of not forwarding the voluntary retirement application of PW.1 to the DM & HO. The appellant failed to discharge the burden and to substantiate the defence theory that he received the amount as repayment of loan from PW.1. Therefore, the conviction and sentence passed by the trial court does not call for any interference in the present case. As such, the appeal fails. 42. As the trial court itself had taken a lenient view and inflicted only the minimum sentences prescribed for the offences under Sections 7 and 13 (1)(d) read with 13(2) of the Act, this Court does not find any need to interfere even with the sentence inflicted on the appellant-AO. As such, it is considered fit to confirm the conviction and sentence passed by the Principal Special Judge for SPE & ACB cases on both the counts. 43. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence passed by the Principal Special Judge for SPE & ACB Cases, Hyderabad, against the appellant – accused officer vide Judgment dated 06.10.2007 in CC No.33 of 2002 for the offences under Sections 7 and 13 (1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The bail granted to the appellant – accused officer during the pendency of the criminal appeal shall stand cancelled. The appellant-accused officer shall surrender forthwith before the Court below, and suffer the rest of the sentence, as confirmed by this Court. In the event he fails to do so, the Court below shall initiate steps in accordance with law to apprehend and incarcerate him for the balance period as per the confirmed sentence. Miscellaneous petitions pending, if any, shall stand closed.