Alluri Srinivasa Rao v. State of A.P

THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS.1201 AND 1204 OF 2002. COMMON JUDGMENT: Criminal Appeal No.1201 of 2002 by A2 and Criminal Appeal No.1204 of 2002 by A1 under Section 374 (2) Cr.P.C., is directed against the judgment, dated 26-11-2002, in C.C.No.8 of 1998, on the file of the Special Judge for ACB Cases, Visakhapatnam, whereunder and whereby A1 and A2 were convicted of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) r/w 34 IPC and sentenced to undergo Simple Imprisonment for a period of one year each and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for a period of one month each under each count.

2. Brief facts, that are necessary for disposal of the present Criminal Appeals, may be stated as follows: The first accused-accused officer No.1 (hereinafter referred to as ‘A.O.1’) was working as Sub-Treasury Officer (East), Anakapalli since 05-10-1993 and the second accused-accused officer No.2 (hereinafter referred to as ‘A.O.2’) was working as Senior Accountant in the same office from 29-06-1996. P.W.1 worked as Physical Director in Government Junior College, Subbavaram from October, 1986 to November, 2000. While he was working at Subbavaram, the Government issued orders on 03-07-1996 that the Physical Directors should be paid salary equal to that of a Junior Lecturer. Therefore, P.W.1 applied for arrears of salary under Ex.P3, dated 28-08-1996 to the Principal of the College. P.W.2-Senior Assistant in the college presented Ex.P8- bill to the Sub-Treasury officer, Anakapalli by enclosing Form-47 and also copies of the two Government Orders. The gross amount of the bill was Rs.44,519/- and the net amount was Rs.42,679/-. P.W.2 obtained the signature of the Principal on the bill and entered the same in the Treasury Bill book of his office and presented the same in Sub-Treasury Office at Anakapalli on 22- 11-1996. The token number assigned to the bill was 538. Then A.O.1 informed P.W.2 to bring P.W.1 along with him in connection with passing of the bill of P.W.1. So P.Ws. 1 and 2 went to the office of A.O.1 on 25-11-1996.P.W.1 met A.O.1 and he demanded P.W.1 to pay 10% of the bill amount for passing the bill. P.W.1 refused to pay the said amount as his bill was in order. Subsequently A.O.1 raised an objection on the bill that as per G.O.Ms.No.161, Pre-audit by District Treasury Officer necessary. P.W.2 informed the said fact to the Principal of the college. On that, the bill was presented to the District Treasury Officer for the purpose of pre-audit along with a covering letter of the Principal, dated 30-11-1996. Subsequently, P.W.2 came to know that the bill was objected to on the ground that Adhoc Sanction by the head of the Department is necessary as per G.Os.Ms.No.161 and the bill was returned. P.W.2 brought this matter to the notice of the Principal. Later when P.W.2 went to the office, A.O.1 enquired him about the bill of P.W.1, and P.W.2 informed A.O.1 that the bill was returned with an objection by D.T.O. Then A.O.1 advised him to present the bill after one month. A.O.1 also advised P.W.2 to present the bill referring to court orders and after changing Form No.47. P.W.2 put up a note on 02- 02-1997 before the Principal with the above facts and also referring to a similar bill of Chodavaram S.T.O. office, which was passed under similar circumstances. The Principal asked P.W.2 to discuss the matter with A.O.1 and A.O.1 advised him to present the bill as if is after changing Form No.47 (Ex.P4 (a)). Accordingly, P.W.2 presented the bill on 05-02-1997 in the office of A.O.1 and token No.203 was assigned to the bill. P.W.2 obtained the signature of the Principal on Form No.47 with the date 05-02-1997 and enclosed the same to the bill. A.O.1 instructed P.W.2 to bring P.W.1 along with him. Both P.Ws. 1 and 2 went to the office of A.O.1 on 19-02-1997 and A.O.1 was on leave on that day. Both of them went to the office of A.O.1 on the next date i.e., on 20-02-1997 at about 1.30 P.M. and when they met him, he stated to P.W.1 that had he paid 10% of the bill amount as demanded by him earlier, the bill would have been passed long time back and P.W.1 could have avoided going around the office. At that time A.O.1 told P.W.1 that the bill will not be passed unless Rs.2,000/- was paid by P.W.1 for passing the bill. P.W.1 pleaded that he cannot pay the said amount. On that A.O.1 stated that at least Rs.1500/- should be paid and threatened that unless the demanded amount is paid, the bill will meet the same old fate. P.W.1 agreed to pay Rs.1500/-. Then A.O.1 asked P.W.1 to get Rs.1500/- on the next day and pay the amount to A.O.2 and asked him to get his bill processed. A.O.1 also told A.O2 that P.W.1 would come and pay Rs.1500/- for processing the bill. When P.W.1 was getting up to leave the office, A.O.2 demanded P.W.1 to bring Rs.1500/- as instructed by A.O.1. A.O.1 also told P.W.1 to bring Form No.47 containing the objection of D.T.O. and also stated that his bill will not be passed if he failed to bring the amount. Thereafter, P.Ws. 1 and 2 returned to the college. As P.W.1 was not willing to pay the bribe amount and get his bill passed, he approached ACB officials at Visakhapatnam and presented Ex.P1 report to P.W.5, who registered a case in Cr.No.9/RC-ACB/1997 and decided to lay a trap on 21-02-1997. He secured the presence of P.W.3 and one L.Narasinga Rao. P.W.1 was also instructed to attend the office along with P.W.2 on the morning of 21-02-1997 along with the proposed bribe amount. On 21-02-1997 at 7.45 A.M., all of them assembled in the office of P.W.5. P.W.1 produced Rs.1500/- and Ex.P5-mediators report was prepared. After completing the pre-trap proceedings, all of them left the office of P.W.5 in two Government vehicles and reached Anakapalli bus stand at 11 A.M. P.W.5 instructed P.Ws. 1 and 2 to get down from the vehicles and proceed to STO office and meet A.Os. 1 and 2 and on their further demand for bribe to pay it and to give pre-arranged signal. P.Ws. 1 and 2 proceeded to STO office on foot and reached the office and went into the room of A.O.l. Immediately on seeing both of them, A.O.1 stated that he has already instructed them to meet A.O.2 and give Rs.1500/- and get the bill processed. Then P.Ws. 1 and 2 went to the room of A.O.2. After two persons who were in the room of A.O.2 left the room, A.O.2 asked P.W.2 whether they brought the original Form No.47 and he answered in the affirmative. A.O.2 asked P.W.1 as to whether he brought Rs.1500/- and P.W.1 answered in the affirmative. On the demand of A.O.2, P.W.1 paid Rs.1500/- to A.O.2 who took it with his right hand and transferred the same to his left hand and placed the same in the left side table drawer. When A.O.2 asked P.W.2 for Form No.47, P.W.1 gave it from his rexine bag to P.W.2 who in turn gave it to A.O.2. A.O.2 demanded P.W.2 to make an endorsement on the original Form No.47 as ‘cancelled’. P.W.2 made an endorsement on the original Form No.47 (Ex.P4 (a)). Then A.O.2 processed the bill and sent the entire file along with original Form No.47 to the adjacent office room of A.O.1 for passing orders. After ten minutes the file was returned to the office room of A.O.2 and P.Ws 1 and 2 could know that the bill was passed. P.W.1 went out and gave pre-arranged signal. After receiving the signal, the trap party entered the room of A.O.2 and when conducted Sodium Carbonate Solution Test, the solution turned into pink in respect of both hand fingers. When P.W.5 questioned A.O.2, he denied having received the amount. The version of A.O.2 was incorporated in the second mediators report. The amount was picked up by A.O.2 from his left side table drawer and handed over the amount to the mediator. A.O.1 was also called and his version was incorporated in the mediators report. After obtaining sanction orders under Exs.P23 and P24, charge sheet was filed.

3. The learned Special Judge framed the following charges against the accused: Firstly: That A1 of you (Jangam Kumara Swamy) and A2 of you (Alluri Srinivasa Rao), being public servants i.e., Sub Treasury Officer and Senior Accountant in the office of Sub-Treasury Officer, Anakapalli (East) respectively, in furtherance of your common intention of extracting some amount as gratification other than legal remuneration as a motive or reward from one V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, in the matter of processing ad passing his arrear bill for Rs.42,679/- demanded him to pay Rs.1500/- towards bribe and on or about the 21st day of February, 1997 at about 12.25 P.M. in your office A2 of you accepted or obtained a sum of Rs.1500/- from the said V.Lakshmi Narayana, as per the earlier instructions of A1 of you, for yourselves as a gratification other than legal remuneration as a motive or reward to process his arrear bill for Rs.42,679/- to A1 of you for passing the same, in the exercise of your official functions and that A1 and A2 of you committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 read with Section 34 IPC. Secondly: That A1 and A2 of you, at the same time and place stated supra, in furtherance of your common intention of extracting some amount as gratification other than legal remuneration from one V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, in the matter of his passing arrear bill for Rs.42,679/-, A2 of you by corrupt or illegal means or otherwise abusing your position as such public servant, demanded and obtained for yourself a pecuniary advantage to an extent of Rs.1,500/- from the said V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, and thereby A1 and A2 of you committed an offence specified under Section 13 (1) (d) of the P.C. Act, 1988 punishable under Section 13(2) of that Act read with Section 34 IPC. Thirdly: That A1 and A2 of you being public servants i.e., Sub Treasury Officer and Senior Accountant in the office of Sub- Treasury Officer, Anakapalli (East) respectively, prior to 21-02-1997 at 12.25 P.M. in your office, in furtherance of your common intention of extracting some amount as gratification other than legal remuneration as a motive or reward from one V.Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, in the matter of processing ad passing his arrear bill for Rs.42,679/-, A2 of you willfully and with intent to defraud, got altered the original APTC Form 47of the bill containing the District Treasury officer, Visakhapatnam to the effect that Adhoc sanction by the Head of the Department is necessary with the writing ‘Cancelled’ by the Senior Assistant of the said college Sri K.R.Subba Rao so as to enable you to substitute the same with a fresh APTC Form 47 and gave it to A1 of you and thereby A1 and A2 of you committed an offence punishable under Section 477-A read with 34 IPC. the objection of Fourthly: That A1 and A2 of you at the same time and the place stated supra, knowing that certain offence i.e., offence under Section 477-A r/w 34 IPC has been committed did cause certain evidence of the said offence disappear i.e., A2 of you after getting altered the original APTC form 47 of the arrear bill of V. Lakshmi Narayana, Physical Director, Government Junior College, Sabbavaram, for Rs.42,679/- with the writing ‘Cancelled’ by the Senior Assistant of the said College K.R. Subba Rao gave the same to A1 of you for suppressing the same with an ulterior motive i.e., to enable you to substitute the same with a fresh APRC Form No.47 by creating false record and with the intention of screening you from legal punishment and thereby committed an offence punishable under Section 201 IPC. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.

4. To substantiate the charges, the prosecution examined P.Ws. 1 to 5 and got marked Exs.P1 to P27 besides case property, M.Os.1 to 7.

5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, D.W.1 was examined and Exs.D1 and D2 were marked.

6. The trial Court upon consideration of entire oral and documentary evidence available on record, while acquitting A.Os. 1 and 2 of the offences punishable under Sections 477-A r/w 34 IPC and 201 IPC, convicted and sentenced them as above. Challenging the same, A.Os. 1 and 2 preferred these two appeals.

7. Now the point that arises for consideration is whether the prosecution has proved its case against the appellants-A.Os. 1 and 2 of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act r/w 34 IPC beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? the appellant-A.O.1

8. Mr. C.Padmanabha Reddy, learned senior counsel appearing in Crl.A.No.1204 of 2002 contended that the evidence of P.Ws. 1 and 2 is mutually inconsistent with regard to date of demand, that every allegation in Ex.P1 was falsified by the evidence of P.W.1, that he was under mental agony as the bill was not passed, a false case was foisted against A.O.1, that the objection taken by A.O.1 even according to the case of the prosecution is valid objection, that the admission made by P.Ws. 1 and 2 with regard to demand is quite contrary to the case of the prosecution, that after following the Government rules in vogue, the bill has been passed, that in view of the fact that there is inconsistency in the evidence with regard to demand, Section 7 of the Act has no application, that as no tainted currency notes have been seized from the possession of A.O.1, he cannot be convicted under Section 13 (1) (d) of the Act and hence, he prays to set aside the convictions and sentences recorded against A.O.1.

9. Mr.T.Bali Reddy, learned senior counsel appearing for the appellant-A.O.2 in Crl.A.No.1201 of 2002 contended that there is evidence on record which would go to show that A.O.2 never demanded any amount for showing any official favour, that he merely acted on the instructions of A.O.1, that as there is no evidence to show that any motive or favour to be shown to P.W.1 was pending with A.O.2, the offence under Section 7 of the Act has not been made out, that in the absence of A.O.2 in the room, M.O.5-tainted currency notes was put in the table drawer and thereafter, P.W.1 took out the original Form No.47 from the rexine bag and admittedly handed over to A.O.2 and therefore, both hand fingers came into contact with the phenolphthalein powder, as a result of which, the solution turned into pink colour in respect of one hand and in respect of other hand, the solution turned into light pink colour, that Section 13 (1) (d) of the Act has no application at all to A.O.2 in view of the fact that he has not obtained any amount for showing any favour, that the evidence of P.Ws. 1 and 2 is mutually contradictory on material aspects, that P.W.1 himself admitted that A.O.2 did not demand any amount and the possibility of planting tainted currency notes in the table drawer of A.O.2 in his absence cannot be ruled out, that the prosecution could not explain as to how the original Form No.47 was with P.W.1, that these aspects have not been considered by the trial Court and came to a wrong conclusion and hence, he prays to set aside the convictions and sentences recorded against A.O.2.

10. On the other hand, Mr.V.Ravi Kiran Rao, learned standing counsel appearing absolutely, there is no grouse or enmity for P.W.1 to foist a false for ACB cases contended case against A.Os.1 and 2, that after presenting the bill as directed by A.O.1 and as informed by P.W.2, P.W.1 went and met A.O.1 two or three days after presenting the bill, that at that time A.O.1 demanded 10% of the bill amount towards bribe for passing the bill, that as P.W.1 was not willing to pay the amount, A.O.1 took an objection stating that the bill has to be pre-audited by the District Treasury Officer, that sometime thereafter, when P.W.2 went to the office, A.O.1 asked him to pay that amount so that he will pass the bill of P.W.1, that one day prior to the trap when P.Ws. 1 and 2 went to the office of A.O.1, he demanded P.W.1 to pay at least Rs.2,000/- and even that amount has not been agreed to pay, A.O.1 demanded Rs.1500/- to be payable on the next day, that A.O.1 instructed A.O.2 to receive the amount and process the bill, that A.O.2 received the amount for the benefit of A.O.1 which act squarely falls under Section 13 (1) (d) (iii) of the Act, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced A.Os. 1 and 2 and absolutely, there are no grounds to interfere with the same.

11. The essential ingredients of Section 7 of the Act are: a. that the person accepting the gratification should be a public servant; b. that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person.

12. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.

13. Prior to the trap, P.W.1 worked as Physical Director in Government Junior College, Subbavaram, from October, 1986 to November, 2000. While he was working there, the Government issued orders stating that he shall be paid salary on par with the salary of a Junior Lecturer working in the college. Therefore, he submitted an application to the Principal of the college. In pursuance of his application, P.W.2 who was working as Senior Assistant in the same college presented the bill to the Sub Treasury Office, Anakapalli. P.W.2 informed P.W.1 that A.O.1 (Sub-Treasury Officer) wanted him to meet in the office. It is not in dispute that A.O.1 was working as Sub-Treasury Officer at Anakapalli, whereas A.O.2 was working as Senior Accountant in the same office. Two or three days after the intimation given to P.W.2, P.W.1 went to Sub-Treasury Office and met A.O.1. At that time, it is alleged that A.O.1 demanded to pay 10% of the bill amount in order to pass the bill. When P.W.1 questioned as to why he has to pay 10% of the bill amount as the bill was in proper order, A.O.1 reiterated his demand to pay 10% of the bill amount and P.W.1 stated to A.O.1 that he could not pay that amount as demanded by him. One day thereafter, P.W.2 informed him that A.O.1 objected for passing his bill on the ground that the bill has to be sent for pre-audit. It is not in dispute that the bill of P.W.1 was presented for the first time on 21-11-1996. It is the further case of the prosecution that when P.W.1 refused to pay 10% of the bill amount, A.O.1 took an objection that the bill has to be pre-audited by the District Treasury Officer. Therefore, the bill was presented to the District Treasury officer (for short ‘D.T.O.’) for the purpose of pre-audit. It is not in dispute that D.T.O. took another objection that adhoc sanction of the Head of the Department is necessary. There is no dispute that the objection taken by A.O.1 and objection raised by D.T.O. are in accordance with rules in vogue. It is also not in dispute that with regard to payment and arrear bill after fixation issued memo No.44942/358/A2/TFR/96, dated 04-02-1997. The above memo is clear that arrear claim can be made from the date of sanction or from the date of preparing the bill that should be within six Government pay, months. There is no evidence on record to show that on what date, the memo has been received by the D.T.O. or A.O.1 because Ex.D2 does not contain the seal of the office and initial of the officer with date who received it. Be that as it may be, the fact remains objection taken by A.O.1 and when it was sent to D.T.O., another objection taken by D.T.O. found to be valid objections. According to the case of the prosecution, A.O.1 took an objection because P.W.1 refused to pay 10% of the bill amount as demanded by him.

14. It is not in dispute that D.T.O. has taken an objection that adhoc sanction by the head of the department is necessary. One month after the objection was taken, A.O.1 informed P.W.2 when he went to the office and enquired A.O.1 with regard to the bill of P.W.1. At that time A.O.1 advised P.W.2 to present the bill one month thereafter by referring to Court orders and also after changing Form No.47. Then P.W.2 put up a note before the Principal on 02-02-1997 and accordingly presented the bill on 05-02-1997 in the office of A.O.1. Token No.203, dated 05-0-1997 was assigned to the bill. A.O.1 also advised P.W.2 to change Form No.47. After bringing it to the notice of the Principal, he obtained signature in Form No.47 with date 05-02-1997 and enclosed to the bill. At that time, it is alleged that A.O.1 again wanted P.W.1 to meet him. As per the instructions of A.O.1, P.Ws. 1 and 2 went to the office of A.O.1 on 19-02-1997. As A.O.1 was on leave, they both went to the office on the next day. At that time, it is alleged that A.O.1 stated that had they paid 10% of the bill amount as demanded by him earlier, the bill would have been passed long back and P.W.1 could have avoided in going around the office. At that time again A.O.1 told P.W.1 to pay at least Rs.2,000/- for passing the bill. When P.W.1 pleaded that he could not pay the amount, A.O.1 demanded him to pay at least Rs.1500/-. Unless they pay the demanded amount, the bill would meet the same old fate. He also directed P.W.1 to pay that amount to A.O.2. When P.W.1 agreed to pay that amount, A.O.1 instructed A.O.2 stating that P.W.1 would bring Rs.1500/- on the next day and he may process the bill after P.W.1 brought the amount. Not willing to pay that amount, P.W.1 went to Visakhapatnam and lodged Ex.P1-complaint with P.W.5. P.W.5 directed him to bring the amount on the next day and he secured the presence of P.W.3 and another. After duly noting down the currency note numbers and its denomination and applying phenolphthalein powder, Ex.P15-pre-trap proceedings were drafted. P.W.5 directed P.W.1 to pay that amount to A.O.1 or A.O.2 as demanded by them and give pre-arranged signal after receipt of that amount by any one of A.Os. 1 and 2. The tainted currency notes have been kept in the shirt pocket of P.W.1 and he was having a rexine bag with him at that time, which contain the original Form No.47, which was filed at the time of presentation of the bill on 21-11-1996. No doubt, the prosecution has not given any explanation as to how this original Form No.47, which was marked as Ex.P4 (a) came into possession of P.W.1 when it was attached to the bill. According to the prosecution, A.O.1 gave a direction to P.W.1 to represent the bill as it is after placing a new Form No.47. P.W.1 also has not given any explanation as to how he came into possession of original of Exs.P4 (a), but the fact remains on the date of trap, Ex.P4 (a) was in possession of P.W.1. That fact was also stated by P.W.5 and the copy of Ex.P4 (a) was also attached to Ex.P1-complaint. The existence of Ex.P4 (a) with P.W.1 was specifically mentioned in Ex.P15, which is the pre-trap proceedings. How P.W.1 came into possession of Ex.P4 (a) is of little consequence in this case. It has to be seen whether P.Ws. 1 and 2 have any grouse or enmity against A.Os. 1 and 2 to foist a false case of this nature by using machinery of ACB. The inconsistencies in the evidence of P.Ws. 1 and 2 as pointed out by the learned senior counsel appearing for A.O.1, whether would go to the root of the case so as to disbelieve the version of the prosecution case.

15. With regard to demand on 25-11-1996 is concerned, P.W.1 did not specifically state that he met A.Os. 1 and 2 on 25- 11-1996 as specific charge against A.O.1 was that he demanded 10% of the bill amount on 25-11-996. Whereas P.W.2 stated that when he went to the office of A.O.1 on 25-11-1996, A.O.1 informed him to bring P.W.1 along with him in connection with passing of bill. Therefore, they went there on 25-11-1996. It is at that time A1 allegedly demanded P.W.1 to pay 10% of the bill amount as bribe. In the cross-examination, he admitted that he alone went to the office of the Sub-Treasury Officer, Anakapalli on 25-11-1996. If that statement is to be accepted, the question of A.O.1 demanding P.W.1 any amount on 25-11-1996 does not arise. On this aspect, it is pertinent to refer to the earliest version Ex.P1, which was given by P.W.1, wherein it is stated that on 20-11-1996 arrear bill to a tune of Rs.42,679/- was prepared and sent to the Sub-Treasury officer on 21-11-1996 through U.D.C. (examined as P.W.2) of his college. When the Sub-Treasury Officer sent a word to him through U.D.C., he went to the office of A.O.1 within two or three days and met the Sub-Treasury officer. Therefore, the earliest version as stated in Ex.P1 would go to show that he went and met A.O.1 two or three days after 21-11- 1996. Similarly, the evidence of P.W.1 would go to show that two or three days after receipt of intimation from P.W.2. he went to Sub-Treasury Office and met A.O.1. So the earliest version as narrated in Ex.P1 as testified by P.W.1 would not disclose that P.W.1 went to the Sub-Treasury Office and met A.O.1 on 25-11- 1996. Though the charge is specific that on 25-11-1996 when P.W.1 met A.O.1, A.O.1 demanded him to pay 10% of the bill amount, but the evidence is very clear that two or three days after presenting the arrear bill on 21-11-1996 only, P.W.1 met A.O.1. That discrepancy with regard to the date of demand as noted in the charge would not in any way cause prejudice to the case of A.O.1 because it is the specific case of the prosecution that two or three days after presenting the bill only, he went and met A.O.1. As seen from Ex.P3-made up file, it is clear that bill was submitted for the first time by P.W.2 on 21-11-1996. That aspect of the case is not in dispute.

16. It is also not in dispute that bill that was presented to A.O.1 was returned with an objection that it requires pre-audit sanction from the D.T.O. It is also not in dispute that objection was valid one and is in accordance with law. The case of P.W.1 is that because he refused to pay 10% of the bill amount, the said objection was taken. On the other hand, the contention of the learned senior counsel appearing for A.O.1 is that if the arrears claim of pay fixation is more than one year, it requires pre-audit. As directed by A.O.1, P.W.1 along with P.W.2 went to the office on 19-02-1997. On that day, A.O.1 was on leave and there is no dispute about that fact. Therefore, on the next day, they went and requested to pass the bill. Then again A.O.1 reiterated the earlier demand. In the meanwhile the bill of P.W.1 was sent to D.T.O., who took an objection that it requires adhoc sanction from the Head of the department. It is not in dispute that the bill was represented by P.W.2 on 05-02-1997 with a token No.203, for Rs.42,679/-. The same was noted on Ex.P10 by the Shroff of the Sub-Treasury Office, Anakapalli. On 20-02-1997 when A.O.1 reiterated his demand to pay 10% of the bill amount, P.W.1 stated that he could not pay the amount. Therefore, A.O.1 demanded to pay at least Rs.2000/-. Even when P.W.1 pleaded that he could not pay the amount, A.O.1 demanded to pay at least Rs.1500/-, otherwise the bill will not be passed and A.O.1 also stated that P.W.1 would pay Rs.1500/- on the next day and if that amount is not paid, the bill will meet the same fate as his first bill. He also directed P.W.1 to get Rs.1500/- and pay the amount to A.O.2 who is working as Senior Assistant in the office. It is in the evidence of P.W.1 that at that time, A.O.1 also stated A.O.2 that P.W.1 will come and pay Rs.1500/- for processing the bill. While P.W.1 was getting up to leave the office, A.O.2 demanded him to bring Rs.1500/- as instructed by A.O.1. A.O.1 also told him to bring old Form No.47 containing the objection taken by the D.T.O.

17. The evidence of P.W.2 on the aspect of demand on 20- 02-1997 is that on that day at about 1.30 P.M., when they both went to the office and met A.O.1, he stated to P.W.1 that had he paid 10% of the bill amount as demanded by him earlier, bill would have been passed long back and P.W.1 could have avoided going around the office and at that time A.O.1 told P.W.1 that unless Rs.2000/- is paid, the bill will not be passed. When P.W.1 pleaded his inability to pay that amount, A.O.1 stated that at least Rs.1500/- shall be paid and if the demanded amount is not paid, the bill will meet the same old fate. Then P.W.1 agreed to pay Rs.1500/- to A.O.1 and at that time, A.O.1 instructed A.O.2 that P.W.1 will bring Rs.1500/- on the next day and that he may process the bill after P.W.1 brought the amount. Except slight variations with regard to actual words uttered by A.O.1, the main fabric of the case with regard to reiterating the demand to pay 10% of the bill amount and when P.W.1 expressed his inability to pay that amount, reducing the amount to Rs.2,000/- and further reducing the amount to Rs.1500/- and directing P.W.1 to pay that amount to A.O.2 is consistent. inability, A.O.1 reduced

18. It is one of the contentions of the learned counsel appearing for A.Os. 1 and 2 that on the admission made by P.W.1 to the effect that on 20-02-1997 P.Ws. 1 and 2 were present in the chambers of A.O.1 and while they were discussing the matter in the chambers, no staff members of the office either left or entered the chambers of A.O.1 and therefore the possibility of A.O.2 entering into the chambers of A.O.1 on 20-02-1997 is highly improbable and false. On this aspect, the earliest version as narrated in Ex.P1 would go to show that on 20-02-1997 at about 1.30 P.M., P.W.1 along with P.W.2 went to the office of A.O.1 and A.O.1 reiterated the demand of 10% of the bill amount. When P.W.1 pleaded his Rs.2,000/- and when P.W.1 stated that even that amount could not be paid, A.O.1 told him to bring at least Rs.1500/-. When P.W.1 was willing to pay that amount, A.O.1 asked him to pay the amount to A.O.2 on 21-02-1997. He also informed A.O.2 to receive the amount and thereafter process the bill. A.O.2 also informed P.W.1 to bring the amount on the next day as stated by Sub-Treasury Officer. So this earliest version as narrated in Ex.P1 with regard to presence of A.O.2 on 20-02-1997 is completely in corroboration with the evidence of P.W.1. Further the evidence of P.W.1 is corroborating with admission made by P.W.2 that nobody entered into the chambers of A.O.1 while P.Ws. 1 and 2 were present there, can only be said to be a stray admission and it cannot be read as isolation with the other evidence on record. Basing on the said admission, it cannot be said that A.O.2 was not all present on 20-02-1997 in the the evidence of P.W.2. Therefore, the amount chambers of A.O.1.

19. No doubt, P.Ws. 1 and 2 made some improvements in the prosecution case. In the first instance, P.W.1 did not state before the Investigating officer with regard to presence of A.O.2 either in Ex.P1 or Ex.P2 in the afternoon in the office room of A.O.1 on 20-02-1997. Similarly in Ex.P2, P.W.1 did not state that A.O.2 received the bribe amount with his right hand and transferred it to his left hand before placing it in the left hand table drawer. Similarly, P.W.2 did not state before the Investigating Officer specifically about the aspect of offering money when himself and P.W.1 met A.O.1 on 21-02-1997. These omissions and improvements made by these two witnesses might have occurred due to long lapse of time. If the omission is a material omission, which will affect the main fabric of the prosecution case, then it cannot be brushed aside as insignificant. The omission amounting to contradiction merits consideration, it can be taken into consideration to know in what manner it will affect the sub-stratum of the prosecution case. If the omissions are trivial in nature or will not go to the root of the prosecution case, the same need not be given much importance. The fact that A.O.2 was also present on the afternoon of 21-02- 1997 in the chambers of A.O.1 is consistent from the beginning. The evidence of P.Ws. 1 and 2 is clear that A.O.2 was also present in the chambers of A.O.1 on 21-02-1997. The earliest version would also go to show that A.O.2 informed P.W.1 to bring the amount on the next day as stated by A.O.1.

20. The contention of the learned senior counsel appearing for A.O.2 that P.W.1 categorically admitted that A.O.2 never demanded P.W.1 to pay any bribe, may be correct to some extent because A.O.2 on his own accord has not demanded P.W.1 to pay any amount for processing the pay fixation bill. It is also admitted by P.W.2 that from November, 1996 to 19-02-1997 A.O.2 never demanded P.W.1 to pay any bribe amount. It is not the case of the prosecution that A.O.2 demanded directly P.W.1 to pay some amount. P.Ws. 1 and 2 testified that A.O.2 demanded P.W.1 to bring that amount on the next day as directed by A.O.1. Therefore, the presence of A.O.2 in the chambers of A.O.1 on 20-02-1997 can be accepted. If really, the contention of the learned counsel for A.O.2 is to be accepted that he was not present on 20-02-1997 in the chambers of A.O.1 and he has not demanded any amount from P.W.1 as directed by A.O.1, then certainly there is no need for him to receive the bribe amount of Rs.1500/- from P.W.1 on the next day. It is the specific case of A.O.2 that during his absence for about twenty minutes in his room, P.Ws. 1 and 2 planted the money in his table drawer without his knowledge, but there is no evidence which probablises the defence theory. into contact with into contact with the hands of P.W.1 came

21. It is the further contention of the learned counsel for A.O.2 that after placing the tainted currency notes in the table drawer phenolphthalein powder, that A.O.2 after returned to his seat, asked original Form No.47 (Ex.P4 (a)), that P.W.1 took out that form from his rexine bag and handed over to P.W.2 and P.W.2 in turn handed over the same to A.O.2 and therefore, both hand fingers of A.O.2 must have come phenolphthalein powder when he handed over Ex.P4 (a). It is not in serious dispute that when P.W.5 got rinsed both hand fingers of A.O.2 in two separate Sodium Carbonate Solution tumblers, the solution in the tumbler where A.O.2 rinsed his right hand fingers turned into light pink colour and the solution in the other tumbler where A.O.2 rinsed his left hand fingers turned into pink colour. If really, A.O.2 has not received the tainted currency notes, then he would not be in a position to know the place where currency notes have been kept. P.Ws. 3 and 5 along with staff upon receipt of pre- arranged, signal rushed to the office room of A.O.2 and after introducing P.W.5 himself, the solution test was conducted. When P.W.5 questioned about the money, A.O.2 took out the money from the table drawer. On this aspect, the evidence of P.Ws. 3 and 5 coupled with the recitals in Ex.P22-post-trap proceedings would clearly indicate that A.O.2 took out money from the table drawer and handed over the same to P.W.5. This observation in Ex.P22 is an objective finding recorded in the mediators report. Therefore, the objective finding with regard to A.O.2 picking out the tainted currency notes from the table drawer is admissible under law. Therefore, the contention of the learned counsel for A.O.2 that M.O.5-tainted currency notes have been planted in the table drawer without the knowledge of A.O.2 cannot be accepted. The evidence of P.W.3 who is an independent mediator would clearly go to show that while giving his version, A.O.2 picked up the amount from his left side table drawer and gave it to one Narasinga Rao. Similarly, P.W.5 stated that on confrontation, A.O.2 produced Rs.1500/- by opening the left side table drawer and gave the same on his instructions to P.W.3. The said aspect has been clearly stated in Ex.P2, which reads thus: “That A2 so saying dragged the left side table drawer and picked up the tainted currency notes and on instructions of D.S.P. handed over the same to the mediators.” In these circumstances, it can be said that the factum of keeping the tainted currency notes in the table drawer can be said to be within the exclusive knowledge of A.O.2. If the contention of the learned counsel for A.O.2 is to be accepted that without the knowledge of A.O.2, the tainted currency notes have been placed in the table drawer and A.O.2 would not have pulled out the table drawer and took out the currency notes, and he would have pleaded ignorance. Therefore, these circumstances would clearly indicate that A.O.2 received the amount from P.W.1 with his both hands and kept the same in the table drawer and that is the reason why one hand fingers turned into pink colour and the other turned into light pink colour when both hands subjected to Sodium Carbonate Solution Test. If the sequence of events i.e., after the trap party entered into the room of A.O.2 have not been taken place as mentioned in Ex.P22, the same should have been objected by both A.Os. 1 and 2. Therefore, the objective findings as recorded in Ex.P22 are admissible under law. The objective findings coupled with the evidence of P.Ws. 3 and 5 would clearly go to show that tainted currency notes were taken out by A.O.2 from his left hand table drawer after pulling the same and handed over the same to the mediators. It is not in dispute that the numbers of the tainted currency notes and its denomination as taken out by A.O.2 from the table drawer are tallying with the numbers and denomination as noted in Ex.P15-pre-trap proceedings.

22. It is not in dispute that A.O.1 is the competent authority to pass the bill relating to P.W.1. It is also not in dispute that A.O.2 has to process the pay bills, arrears bill including the pay fixation bill of P.W.1. As seen from the evidence of P.Ws. 1 and 2, in the first instance as P.W.1 failed to pay 10% of the bill amount, it was returned with an objection that it requires pre-audit sanction by the D.T.O. When the bill was admittedly sent to D.T.O. another objection was taken that it requires adhoc sanction from the head of the department. These two objections are within the knowledge of A.Os. 1 and 2 and unless those objections are fulfilled, question of passing the bill of P.W.1 does not arise. It is the case of the prosecution that after receipt of tainted amount, the bill was passed by A.O.1 a processed by A.O.2 and when the bill was taken to the Bank, the amount was encashed by P.W.1. There is no dispute about that fact.

23. It is contended by the learned counsel appearing for A.Os. 1 and 2 that in pursuance of Ex.D2, they passed the bill in usual course. To substantiate the same, D.W.1, who is the retired Assistant Treasury Officer, Visakahpatnam at the relevant point of time, was examined. He also stated that arrears salary bill of the District Treasury office, P.W.1 was presented Visakhapatnam. The same was returned on the ground that adhoc sanction of the head of the department is required for passing the bill. He stated that Ex.D2 Government instructions, dated 04-02- 1997, enclosing G.O.Ms.No.280, dated 22-10-1997, was received within one week after 04-02-1997. According to him as per the instructions in Ex.D2, the claim of P.W.1 will come under the head arrear claim. Any bill presented within one year after the sanction orders will only be termed as arrear bill. Since the bill of P.W.1 was presented in the same month, it cannot be termed as a arrear bill. As per Ex.D2 instructions, the bill of P.W.1 does not require adhoc sanction or pre-audit. It is not the case of A.Os. 1 and 2 that they have no knowledge about the objection taken by the D.T.O. as well as the objection taken by A.O.1. Even assuming for a moment that Ex.D2 instructions have been received by A.O.1 or even by the D.T.O. four or five days after 04-02-1997, the bill would have been passed within one week thereafter with specific reference to Ex.D2. There is no indication in the bill that A.O.1 passed the bill or that A.O.2 processed the bill in pursuance of the instructions issued by the Government under Ex.D2. Similarly, there is no other documentary evidence adduced by A.Os. 1 and 2 to show that they have processed and passed the bill in pursuance of Ex.D2 instructions. Therefore, there is absolutely no evidence to show that by taking note of the contents in Ex.D2, the bill of P.W.1 has been passed on 21-02-1997. On the other hand, the evidence of P.Ws. 1 and 2 would go to show that after receipt of tainted currency notes by A.O.2 and after placing original Form No.47 to the bill, the bill has seen sent to A.O.1 and within ten minutes thereafter, the bill was returned duly passing the bill to the table of A.O.2. The evidence of P.Ws. 1 and 2 on this aspect is very clear that after receipt of tainted currency notes, the bill was processed by A.O.2 and passed by A.O.1. The contention of the learned counsel for A.Os. 1 and 2 could have been accepted as true if the bill was processed and passed in pursuance of Ex.D2 instructions. In the absence of such evidence, it can be inferred that the bill was processed by A.O.2 and passed by A.O.1 after receipt of tainted currency notes from P.W.1. There must be some strong ill-will or motive for P.W.1 to foist a false case of this nature by setting the criminal law into motion. No doubt, P.W.1 has got a grievance against A.O.1 for putting some hurdles for passing the bill and as a matter of fact, he suffered mental agony as bill was unnecessarily delayed for about four months. P.W.1 knew that the objection as regards to pre-audit taken by the S.T.O. was not a wrong objection. Similarly, P.W.2 admitted that the objection raised by A.O.1 referring to G.O.Ms.No.161 that pre- audit is necessary by the D.T.O. was a valid objection. Such is the case, there is no reason for P.W.1 to entertain a grouse or enmity against A.Os. 1 and 2. One can understand that he entertained a grouse provided both officers were putting some hurdles with untenable objection or returning the bill without there being any valid reason. Therefore, in such circumstances, simply because P.W.1 suffered mental agony for not passing the bill for about four months, it cannot be said to be a motive or a grouse entertained by P.W.1 so as to implicate A.Os. 1 and 2 falsely. Except that reason, there is no other reason for a person like P.W.1 to foist a false case against A.Os. 1 and 2. The evidence with regard to main fabric of the prosecution case is consistent from the beginning with regard to demand made by A.O.1 in passing the bill. In the first instance, he demanded 10% of the bill amount and later reduced to Rs.2,000/- and further reduced to Rs.1500/-. A.O.2 specifically demanded P.W.1 to pay Rs.1500/- to him and unless he pays that amount, the bill will not be passed and the bill will be returned as in the case of earlier one.

24. Coming to the question whether A.O.2 can be found under Section 7 of the Act, learned counsel appearing for A.O.2 relied on a decision reported in VIRENDRANATH V STATE OF MAHARASHTRA [1], wherein it was held thus: “Insofar as A2 is concerned, we find considerable merit in the contention raised on his behalf that he could have received the money innocently from the complainant at the asking of A1 without realizing that it was bribe money. The argument prevails because the prosecution has nowhere led any other evidence of conductor consistency of a behaviour from which it would be spelled out that A2 was a habitual go- between in facilitating acceptance of bribe by A1.” If really A.O.2 received the amount innocently without realizing that it was a bribe amount, certainly the facts of the case would be applicable to the present facts of the case on hand. On the previous day, A.O.2 was present in the chambers of A.O.1 and A.O.1 instructed him to process the bill after receipt of money. He also directed P.W.1 to bring the amount on the next day as demanded by A.O.1 and after receipt of money, he processed the bill. If A.O.2 accepts tainted currency notes on 21-02-1997, then it can be said to be innocent acceptance. If a public servant accepts any gratification other than legal remuneration as a motive or reward for doing or showing in exercise of his official duties not only for himself or to any other person, it is an offence punishable under Section 7 of the Act. Similarly, under Section 13 (1) (d) of the Act, if he by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, then it is a misconduct, which is punishable under Section 13 (2) of the Act. The word ‘obtained’ used in Section 13 (1) (d) of the Act has been explained in a decision reported in A.SUBAIR V STATE OF KERALA [2], wherein it was held thus: “In C.K.Damodaran Nair v Govt. of India (1997) 9 SCC 477, this Court had an occasion to consider the word ‘obtained’ used in Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (now Section 13 (1) (d) of the Act, 1988) and it was held: (SCC p.483 para 12). The position will, however, be different so far as an offence under Section 5 (1) (d) read with Section 5 (2) of the Act is concerned. For such an offence prosecution has to prove that the accused ‘obtained’ the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4 (1) of the Act as it is available only in respect of offences under Sections 5 (1) (a) and (b)- and not under Sections 5 (1) (c), (d) or (e) of the Act. ‘Obtain’ means to secure or grain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either ‘acceptance’ or ‘obtainment’.” Therefore, there need not be any demand. If he receives the amount on request, it would come within the meaning of Section 13 (1) (d) of the Act.

25. The official favour that may be shown by A.O.2 is with regard to process of bill. No doubt, there is no evidence to show that he demanded or requested P.W.1 to pay some amount for processing the bill, but at the same time he accepted the money for passing the bill for the benefit of A.O.1. No doubt, the learned Special Judge in view of Section 34 IPC convicted A.O.2, but on the facts and circumstances of the case, A.O.2 can also be punished under Sections 7 and 13(1) (d) of the Act because he accepted the amount as a public servant on behalf of A.O.1 for processing and passing the bill. The prosecution could be able to establish the guilt of A.Os. 1 and 2 beyond all reasonable doubt. The findings are based upon proper appreciation of evidence of record and none of the findings is shown to be perverse or contrary to law so as call for interference by this Court.

26. Accordingly, the Criminal Appeals are dismissed confirming the judgment dated 26-11-2002, in C.C.No.8 of 1998, on the file of the Special Judge for ACB Cases, Visakhapatnam. --------------------- K.C.BHANU, J DATED: 28-08-2009 Hsd