JUDGMENT
L. Narasimha Reddy, J.
1. This is an appeal preferred by the sole accused in C. C. No. 6 of 1995 on the file of the Special Judge for SPE and ACB Cases, Nellore. The trial Court through its judgment dated 13-9-1996 found the appellant guilty of the offence under Section 7 of the Prevention of Corruption Act, 198S (for short ‘the Act’) and sentenced him to undergo rigorous imprisonment for two years and to pay fine or Rs. 2,000/-. It has also found him guilty of the offence under Section 13(1)(d) read with Section 13(2) of the Act and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/-. Both the sentences were directed to run concurrently.
2. The case of prosecution is that the , appellant was employed as Agricultural Officer and was posted in Baireddipalli Mandal, Chittoor district. PW-1 is the dealer in fertilizers in Baireddipalli village having obtained necessary licence under the relevant provisions, On 26-1-1994, the appellant went to the shop of PW-1 and verified as to whether the Stock Register and Bill books (Exs. P-1 and P-2) were maintained properly. On the allegation that they were not maintained properly, he had taken away Exs. P-1 and P-2 without issuing any receipt for the same. PW-1 went to the house of the appellant at Palamaner four or five times and requested him to return Exs. P-1 and P-2, the appellant informed PW-1 that unless an amount of Rs. 2,000/- is paid, Exs. P-1 and P-2 will not be returned. Again PW-1 went to the house of the appellant in the afternoon of 22-2-1994. The appellant had insisted that at least an amount of Rs. 1,500/- be paid for returning the seized Exs. P-1 and P-2 failing which a case will be registered against PW-1 and prosecuted for violations.
3. Thereafter, PW-1 returned, He approached the Deputy Superintendent of Police (ACB) at Tirupathi, on 25-2-1994 and informed about what transpired between him and the appellant. After following necessary formalities, a trap was arranged to take place on 26-171994. An amount of Rs. 1500/- with tainted notes was arranged and a person by name M. Gangadhar was to accompany PW-1 to witness the payment of the amount to the appellant. The ACB team proceeded to the spot as planned. PW-1 and the said Gangadhar went to the house of the appellant at about 5 p.m. The accused was not there and when asked, the inmates of the house informed that he will come back shortly. They waited outside the house. At 7.30 p.m., the appellant came to his house. On noticing PW-1, he called him inside and took him into the bedroom. When the appellant enquired about the amount, PW-1 expressed his willingness to pay; thereupon the appellant had given him an envelope of invitation card and asked him to put the amount into the same. PW-1 complied with the same and gave the cover to the appellant. After receiving it, he kept it in the sill of the window in the bedroom.
4. Thereafter, PW-1 came out and gave a pre-arranged signal. The panch witness PW-2 and the Deputy Superintendent of Police PW-6 along with other staff went to the house of the appellant. They arranged for washing of the hands of the appellant with sodium carbonate solution. The washing of both hands yielded neutral result. Thereafter, PW-6 has called for PW-1. He explained whatever had transpired between him and the appellant. As per the revelation of PW-1, PW-6 recovered the envelope comprising the tainted amount. The appellant was immediately arrested and proceedings were initiated under the provisions of the Act.
5. Charges were framed against the appellant under Section 7 and 13(1)(d) read with 13(2) of*the Act. The prosecution examined PWs 1 to 7 and marked Exs. P-1 to P-13 and MOs 1 to 10. For the defence, DW-1 was examined and Exs. D-1 and D-2 were marked. PW-1 is the de facto complainant, PW-2 is the panch witness for the proceedings undertaken by ACB, PW-3 is another dealer in fertilizers at the same village, PW-4 is the Assistant Director of Agriculture, who is a Superior Officer of the appellant, PW-5 is an officer in the Secretariat examined in connection with the grant of permission to prosecute the appellant and PW-7 is the Inspector of Police at the relevant point of time.
6. Sri T. Bali Reddy, learned senior counsel appearing for the appellant submits that the case against the appellant was foisted and there does not exist any evidence worth, its name to convict the appellant. He submits that the trap was not successful inasmuch as undisputably, the washing of both hands of the appellant with the sodium carbonate solution did not yield any positive result. Even according to the case of prosecution as spoken to by no less than important witness as PW-4, the appellant was in the conference of the Officers of Agricultural Department from 10 a.m. to 5 p.m. on 22-2-1994 and in that view of the matter, the theory of the accused that PW-1. approached the appellant at his residence at 1.30 p.m. on 22-2-1994 is an utter falsehood. Learned counsel further submits that one M. Gangadhar was drawn by ACB team to accompany PW-1 and for reasons best known to them, he was not examined at all. Learned senior counsel also relied upon several judgments in support of his contentions.
7. Sri G. Pedda Babu, learned standing counsel and Special Public Prosecutor for ACB submits that the evidence is mostly circumstantial in nature and all the circumstances of the case led only to one conclusion, namely the appellant had received illegal gratification from PW-1 for unlawful gain. He submits that the minor inconsistencies pointed out by the learned senior counsel are not so vital as to discredit the consistent version presented by the prosecution.
8. In the matters relating to payment or receipt of illegal gratification for unlawful gain by public servants, the prosecution has to establish the demand as well as acceptance of such illegal gratification. Both aspects were treated as an integral part of the crime. Therefore, it has to be firstly seen as to whether the prosecution was able to establish that the appellant, herein made the demand for payment of illegal gratification. Reference in this context may be made to the judgment of the Supreme Court in Hari Dev Sharma v. State Delhi Administration .
9. PW-1 has stated that the appellant had visited his fertilizer shopon26-l-1994 and on the allegation that Exs. P-1 and P-2 were not properly maintained, he had seized them. He stated that he requested the appellant five or six times to return the same, but the appellant demanded him to pay Rs. 2,000/- for returning the same. As regards several dates of his visit and demand by the appellant, PW-1 is not specific. He is certain as to his visit to the house of the appellant on 22-2-1994 at 1.30 p.m. It is at that meeting that the deal for payment of Rs. 1,500/- is said to have been struck. The relevant portion of his evidence in chief-examination reads as under:
“Again I went to meet him on 22-2-1994 in the afternoon at his house and requested him to return the books for which he told me at least I have to pay Rs. 1,500/- as bribe to him for returning the books or otherwise, he would book a case and send me to jail.”
10. The appellant specifically pleaded that on 22-2-1994, a conference of Agricultural Officers was arranged by the Assistant Director of Agriculture P.W.-4 at Palamaner and he was attending the conference throughout the day from 10.30 a.m. to 5 p.m. Since the appellant pleaded a semblance of alibi, it was for him to establish the same. However, in this case, the evidence of PW-4, the Assistant Director of Agriculture is relevant and important. PW-4 in his cross-examination has stated that the conference took place from 10.30 a.m. onwards, the lunch was arranged in the office itself between 1.00 p.m. and 2.30 p.m. and the appellant was present throughout including lunch hour. His evidence in this regard reads as under :
“Including the accused all of the Agricultural Officers attended the meeting on 22-2-1994. The lunch break was between 1.00 to 2.30 p.m. At 3.00 p.m.. again the officers assembled for the meeting. The meeting lasted up to 4.30 p.m. We had our lunch including the A. O. in the lunch room during the lunch period. The accused was in our office on 22-2-1994 from 10.30 a.m. to 5 p.m.”
11. This evidence clinchingly establishes that the appellant was present at the Conference from 10.30 a.m. to 5 p.m. on that day and he took lunch arranged at the office of P.W.-4. Neither P.W.-4 was declared hostile nor was he examined by the prosecution to explain this circumstance. That being the situation, the version presented by PW-4 has to be accepted. When once that is so, the theory of PW-1 meeting the appellant at his residence on 22-2-1994 at 1.30 P.M. becomes unbelievable. Therefore, the evidence adduced by the prosecution as to existence of demand is rather shaky.
12. Now remains the question as to the acceptance. One of the important circumstances in cases of trap is the positive result of the wash of hands and other part of the body of the accused public servant when treated with Sodium Carbonate Solution. Admittedly, in this case, PW-6 the Investing officer soon after entering the house of the appellant on noticing the signal given by PW-1 has undertaken the wash of the hands of the appellant with the sodium carbonate solution. It is not in dispute that the wash yielded neutral result, Therefore, the prosecution has to fall back upon other circumstantial evidence. The amount was found to have been wrapped in an invitation envelope. No acceptable evidence was placed before the Court to establish that the amount has been in fact paid by PW-1 and was received by the appellant. In a case of this nature, mere presence of tainted notes within the premises of public servant by itself cannot be a fact to establish the crime under Section 7 and 13(1) (d) read with 13(2) of the Act. One important aspect of the matter is that one M. Gangadhar was drawn by the ACB team to witness whatever transpires while PW-1 makes payment to the appellant. PW-1 has categorically stated that the said Gangadhar has accompanied to the house of the appellant. However, he was not examined and no explanation is offered for the same. Learned standing counsel for ACB submits that a reading of the judgment of the trial Court indicates that he was not examined since he was unwell. Though a reference to that extent is made in the order of the trial Court, the basis for such an observation is totally lacking.
13. In Meena Balwant Hemke v. State of Maharashtra the Hon’ble Supreme Court was dealing with a case of similar nature. That was also a case of trap and two shadow witnesses were arranged and out of them, one was examined and other was given up. The one who was examined did not support the case of prosecution. The Supreme Court took the view that the non-examination of shadow witness who was drawn by the ACB team would certainly weaken the case of prosecution. It was held therein that even where the result of phenolphthaleln test proved positive, the attendant circumstances such as the attempt by the accused officer to push away the tainted amount, the attempt by the complainant to push the tainted notes into the hands of the officer etc,, need to be taken into account and these facts are needed to be explained. It was also observed that folding in any shadow witness is a recognized method and failure to examine him will not be without effect.
14. Sri G. Pedda Babu, learned standing counsel for ACB relying upon the judgment of the Supreme court in Tarsem Lal v. State of Haryana AIR 1087 SC 806 : (1987 Cri LJ 715) submits that the absence of any explanation for the recovery of amount would be a strong circumstance to infer the offence under the Act, The said observation was made in the context of a public servant coming forward with an explanation at a later stage. In this case, though the appellant did not offer any explanation as to the alleged recovery of amount, he did not attempt to offer any explanation even at a later stage, That being the ratio laid down by the Supreme Court in Tarsem Lal case (1987 Cri LJ 715) (supra) it 18 not applicable to the facts of this case.
15. From the discussion undertaken above, it is evident that the prosecution has failed to establish the demand as wall as the acceptance of the illegal gratification by the appellant, Therefore, the conviction of the appellant for the offences under Section 7 and 13(1)(d) read with 13(2) of the Act cannot be sustained. Accordingly, the conviction and sentence as ordered by the trial Court are set aside,
16. The criminal appeal is therefore allowed and conviction and sentence ordered by the trial Court against the appellant is set aside. The fine amount, if paid by the appellant, shall be refunded to him.
