Karnataka High Court
Sri R Narayanaswamy vs State Of Karnataka on 3 September, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.716/2009 C/W
CRIMINAL APPEAL No.142/2010
CRL.A.No.716/2009
BETWEEN:
SRI R NARAYANASWAMY
S/O R RAMACHANDRAPPA
AGED ABOUT 65 YEARS,
SUB-TREASURY OFFICER (RETIRED)
MAGADI TALUK OFFICE, MAGADI
PRESENTLY R/AT NO.38, 4TH MAIN
5TH CROSS, K.E.B. LAYOUT
SANJAYANAGAR, BANGALORE-560094. ... APPELLANT
(BY SRI P USMAN, ADVOCATE FOR SRI MOHD. SADATH ALI,
ADVOCATE)
AND:
STATE OF KARNATAKA
BY KARNATAKA LOKAYUKTHA
M.S.BUILDING, BANGALORE. ... RESPONDENT
(BY SMT.T. M.GAYATHRI, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
SENTENCE DT: 28.07.2009 PASSED BY THE DISTRICT AND
SESSIONS JUDGE AT RAMANAGARA IN SPL.CASE NO.19/2008
& ETC.
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CRL.A.No.142/2010
BETWEEN:
STATE BY LOKAYUKTHA POLICE
RAMANAGAR ... APPELLANT
(BY SMT.T.M.GAYATHRI, ADVOCATE)
AND:
SRI R.NARAYANASWAMY @ GOPALA SWAMY
S/O R.RAMACHANDRAPPA, 60 YEARS
SUB-TREASURY OFFICER
MAGADI TALUK OFFICE
MAGADI. ... RESPONDENT
(BY SRI P USMAN, ADVOCATE FOR SRI MOHD. SADATH ALI,
ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 377 CR.P.C.,
PRAYING TO ALLOW THIS APPEAL BY ENHANCING SENTENCE
IMPOSED BY THE DISTRICT AND SESSIONS JUDGE AT
RAMANAGARA IN SPL.CASE NO.19/2008 & ETC.
***
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.08.2013, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
Criminal Appeal No.716/2009 is filed by appellant (hereinafter referred to as 'accused') against the judgment of conviction for offences punishable under sections 7 & 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act') in Special Case No.19/2008, on the file of District & Sessions Judge at Ramanagara. The appellant was tried for aforestated offences. The learned Special Judge convicted accused for offences punishable under sections 7 & 13(1)(d) r/w section 13(2) of the Act. The learned Special Judge sentenced accused to undergo simple imprisonment for a period of six months and pay fine of Rs.20,000/-, in default to undergo simple imprisonment for a period of four months.
The State being aggrieved by the inadequacy of sentence has filed Criminal Appeal No.142/2010.
2. I have heard Sri P.Usman, learned counsel for accused and Smt.T.M.Gayathri, learned counsel for Lokayukta Police. 4
3. The case of prosecution in brief is as follows:-
PW2-Narasingh was working as Head Master of Higher Primary School at Vajarahalli, Magadi Taluk. PW2 retired from service on 31.07.2002. On retirement, PW2 was entitled to receive pensionary benefits viz Provident Fund, DCRG and commutation. On 17.10.2002, PW2 had received intimation of payment of DCRG amount of Rs.1,38,600/- and commutation amount of Rs.1,75,728/- from office of Accountant General. PW2 was informed that DCRG bill for a sum of Rs.1,38,600/- and commutation amount of Rs.1,75,728/- has been sent to Sub-Treasury at Magadi. The accused was the officer of Sub-Treasury at Magadi. On 21.10.2002, PW2 submitted bills in required form to Sub-
Treasury at Magadi for payment of DCRG and commutation amount as aforestated. On 09.11.2002, PW2 had gone to the Office of Sub-Treasury at Magadi and requested accused to release DCRG and commutation amount. The accused in order to perform the above official acts in favour of PW2, demanded a sum of Rs.5,000/- as illegal gratification from 5 PW2 and asked PW2 to come on 11.11.2002. PW2 did not want to bribe accused. On 11.11.2002, PW2 visited the office of Lokayukta police at Bangalore Rural District and submitted first information as per Ex.P.2, on the basis of which PW7-N.T.AshwathNarayana, the then Police Inspector of Lokayukta registered Crime No.11/2002 against accused for offences punishable under sections 7 & 13(1)(d) r/w section 13(2) of the Act and submitted first information report in a sealed cover to jurisdictional Special Judge on the same day. PW7 sent requisition to the Director of Women & Child Welfare Department and the Commissioner, Transport Department to secure official witnesses namely PW3- Chennabasavaiah and PW4-Shivanna Gowda as witnesses for trap. PW2 produced ten currency notes of Rs.500/- denomination before PW7, to which PW7 smeared phenolphthalein powder. PW7 explained the contents of complaint and demonstrated phenolphthalein test to witnesses. As instructed by PW7, one of the staff members namely Ramachandra put tainted currency notes into shirt 6 pocket of PW2 and instructed PW2 to give tainted currency notes to accused (Officer of Sub-Treasury at Magadi) if bribe is demanded by accused. PW7 collected resultant handwash of Ramachandra in a separate bottle. Thereafter, raiding party consisting of PW2 to PW4, PW7 and other staff members of Lokayuktha Police reached the office of Sub- Treasury at Magadi at 2 p.m., and jeep was stopped at a distance. PW7 instructed PW2 to give tainted currency notes to accused, if bribe amount is demanded by him and asked PW4 to accompany PW2 as a shadow witness to observe as to what would transpire between accused and PW2. PW2 was instructed to give a signal in case bribe amount was demanded and accepted by accused. PW2 met accused and enquired him about payment of DCRG and commutation amount and also about pension papers. The accused demanded and accepted illegal gratification of Rs.5,000/- from PW2, which was also observed by PW4 (shadow witness). Thereafter, PW2 came outside the chamber of accused and gave pre-determined signal to PW7. PW7 7 entered the chamber of accused and apprehended him and held his hands and recovered tainted currency notes from his shirt pocket. The hands of accused were washed in a bowl containing sodium carbonate solution. The resultant hand wash turned into pink colour and resultant solution was collected in two separate bottles and the same were sealed. PW7 collected DCRG, pension papers and commutation papers from the Office of accused from PW1- P.N.Chandrashekaraiah, who was working as a Second Division Assistant in Sub-Treasury at Magadi. The accused gave a written statement as per Ex.P.5. PW7 recorded the statements of witnesses, seized incriminating articles, completed investigation and submitted final report against accused for aforestated offences to learned Special Judge on 27.12.2003. The learned Special Judge took cognizance of offences punishable under sections 7, 13(1)(d) r/w 13(2) of the Act on 30.12.2003 and issued summons to accused for his appearance on 27.01.2004. In the meanwhile, Disciplinary Inquiry was initiated against accused and 8 accused was dismissed from service in terms of Government Order bearing No.FD 264 Aakhayi 87, Bangalore, dated 19.07.2003. As accused had been dismissed from service before final report was filed on 27.12.2003, Investigating Officer had not obtained previous sanction from the Competent Authority to prosecute accused.
4. During trial, on behalf of prosecution, PW1 to PW7 were examined and documents as per Ex.P.1 to Ex.P.12 were marked and material objects were marked as M.O.1 to M.O.9.
5. The learned Special Judge on appreciation of evidence has held accused guilty of offences punishable under sections 7 & 13(1)(d) r/w 13(2) of the Act. However, while passing sentence, learned Special Judge has sentenced accused to undergo simple imprisonment for a period of six months and pay fine of Rs.20,000/-, in default to undergo simple imprisonment for a period of four months for an 9 offence punishable under section 7 r/w section 13(1)(d) of the Act. It is the grievance of State that learned Special Judge has not imposed minimum sentence of imprisonment provided for an offence punishable under section 13(1)(d) r/w section 13(2) of the Act.
6. Criminal Appeal No. 716/2009 is against judgment of conviction. Therefore, it is necessary for this court to re- appreciate evidence to find out whether trial court has arrived at proper conclusions.
7. Before adverting to appreciation of evidence, it is necessary to narrate certain facts, which are not disputed by accused:-
It is not in dispute that PW2 was working as the Head Master in Higher Primary School at Vajarahalli, Magadi Taluk. PW2 retired from service on 31.07.2002. After receiving authorization for payment of DCRG amount of Rs.1,38,600/- and commutation amount of Rs.1,75,728/-10
from the office of Accountant General, PW2 had submitted bills in required proforma in Sub-Treasury at Magadi, of which the accused was the Officer.
8. It is the case of prosecution, accused had demanded and accepted illegal gratification of Rs.5,000/- from PW2 as a reward for passing DCRG and commutation bills as aforestated. The same has been denied by accused. Therefore, it is necessary to re-appreciate evidence of PW1 to PW7.
9. PW1-P.N.Chandrashekaraiah was working as a Second Division Assistant in Sub-Treasury at Magadi. PW1 was examined to prove that bills pertaining to commutation and DCRG of PW2 were pending in Sub-Treasury at Magadi. PW1 has deposed; on 09.11.2002, PW1 had processed all pension papers of PW2 submitted to accused for his signature; as it was Saturday accused had asked PW1 to place the papers on Monday i.e., 11.11.2002; accordingly, PW1 submitted 11 papers to accused on 11.11.2002 during forenoon, but the accused asked PW1 to submit the same at 2 p.m.; accordingly, PW1 placed the documents at 2 p.m. and went to lunch; the documents submitted by PW1 to accused in all 11 pages (Ex.P.1) also contained pension order.
During cross-examination, PW1 has admitted that on 09.11.2002 all papers were ready for being given to PW2. The cross-examination of PW1 that all the papers were ready on 09.11.2002 for being given to PW2 looks innocuous and it is contrary to evidence given by PW1 in his examination-in- chief, wherein PW1 has deposed that papers could not be placed before accused on 09.11.2002 as it happened to be Saturday and PW1 placed papers before accused on 11.11.2002 during morning office hours. The accused asked PW1 to place papers at 2 p.m., PW1 placed the papers at 2 p.m. on 11.11.2002. Thus, it is established from evidence of PW1 that official work of PW2 was pending with accused on 11.11.2002. Therefore, the defence of accused that he had performed all his official duties on 09.11.2002 and papers 12 relating to DCRG and commutation of PW2 were not pending with him on 11.11.2002 cannot be accepted.
10. PW2-Narasingh has deposed; on 09.11.2002, he had gone to the Office of Sub-Treasury at Magadi and sought for release of amount (his service benefits); accused was working as the Officer of Sub-Treasury at Magadi. The accused demanded a sum of Rs.5,000/- from PW2 for releasing amount to PW2 and asked PW2 to bring bribe amount on ensuing Monday; PW2 went to the office of Lokayukta Police and lodged complaint as per Ex.P.2; PW7 took a sum of Rs.5,000/- from PW2 and procured witnesses and introduced PW2 to the witnesses and explained to the witnesses about complaint lodged by PW2; PW4-Shivanna Gowda counted 10 currency notes of Rs.500/- denomination, which were given by PW2 to PW7; PW7 smeared currency notes with some powder and gave tainted currency notes to PW3-Chennabasavaiah, who put tainted currency notes into shirt pocket of PW2; before that he had 13 searched the person of PW2 to confirm that PW2 was not in possession of any other currency notes; thereafter, Investigating Officer (PW7) washed fingers of PW2 in a colourless solution, which turned into pink colour; resultant hand wash was collected in a separate bottle and PW7 prepared mahazar, which was attested by PW2 and other witnesses; PW7 completed preparations for trap by 12.30 p.m., ; thereafter raiding party consisting of PW7, PW2 and other witnesses reached Sub-treasury at Magadi by 2 p.m.; PW7 instructed PW2 to pay bribe amount to accused if demanded by accused and also instructed PW2 after the bribe amount is demanded and accepted by accused to come out of the chambers of accused and to give signal by wiping his face with a handkerchief. They had parked the jeep at a distance of 100 metres from Sub-Treasury; thereafter, PW2 & PW4 reached the office of Sub-Treasury at Magadi; PW2 entered chamber of accused, while PW4 stood outside door of chamber of accused; accused asked PW2 whether he had brought amount as demanded earlier; PW2 told that he has 14 brought the amount and gave a sum of Rs.5,000/- (tainted currency notes) to accused; the accused received tainted currency notes from PW2, counted the tainted notes and kept tainted currency notes in left side pocket of his shirt; thereafter, PW2 came out of office and gave pre-determined signal to PW7; thereafter PW7 and other members of raiding party entered the chamber of accused and apprehended him; PW7 introduced himself to accused and asked accused to give the amount (tainted currency notes), which he had received from PW2; accused took out the amount (tainted currency notes) and gave the same to PW7; thereafter, PW7 washed fingers of both hands of accused in a colourless solution contained in two bowls; the resultant wash turned into pink colour; PW7 collected resultant handwash in separate bottles; PW7 provided alternate shirt and dipped left side shirt pocket of accused in a bowl containing colourless solution, which turned into pink colour; PW7 seized shirt and tainted currency notes and kept them in different covers; PW2 has identified these articles before 15 court; thereafter when questioned by PW7, accused told PW7 that he had never demanded money from PW2 and PW2 thrust tainted currency notes into shirt pocket of accused.
During cross-examination, PW2 has admitted that after receiving authorization from concerned authorities, he had filled up contents of bills and submitted bills and received token as per Ex.P.9; after 21.10.2002, PW2 had visited the Office of Sub-Treasury on several occasions and demanded for GPF amount. PW2 has denied suggestion that he had been informed by Sub-Treasury that there was ban for honouring GPF bills, after ban is lifted, he could receive the amount. After that PW2 had not contacted accused. PW2 has denied suggestion that he had demanded accused to give him bearer cheque instead of crossed cheque. PW2 had received pension book on 09.11.2002. On 09.11.2002, PW2 had received a sum of Rs.18,774/- as pension for a period of three months, on that day accused (Officer of Sub-Treasury) asked PW2 to encash cheque for a sum of Rs.18,774/- and DCRG amount of Rs.1,34,600/- and commutation amount of 16 Rs.1,75,728/- will be given on a later date. PW2 has denied the suggestion that accused had not demanded bribe from PW2.
11. PW2 has admitted in the first information he has stated the name of officer of Sub-Treasury as Gopalaswamy. PW2 has denied suggestion that he knew PW7 from beginning. PW2 has deposed; when he had met accused, PW4 was standing outside door of chamber of accused and PW2 alone entered the chamber of accused; PW4 was standing at a distance of 2 to 3 metres from place where accused was sitting. PW2 has denied suggestion that accused was not available in the office when trap was laid. PW2 has denied suggestion that accused had gone to a hotel to take food as it was lunch recess. PW2 has denied the suggestion when accused was taking food, PW2 attempted to thrust money into shirt pocket of accused, at that time, PW7 came and apprehended accused. PW2 has deposed; when pension amount of Rs.18,774/- for a period of three months 17 was given to him, accused had told PW2 to encash cheque and bring bribe amount. PW2 had not encashed cheque and he had not received money. PW2 has denied suggestion that he demanded accused to give him bearer cheque instead of crossed cheque and accused had told PW2 that he cannot draw bearer cheque for a sum of Rs.3 to 4 laksh payable to PW2. PW2 has admitted that he was kept under suspension during year 1998. PW2 has specifically denied suggestion that accused had refused to give bearer cheque as demanded by PW2, therefore, PW2 has filed a false complaint against accused and thrust tainted currency notes into shirt pocket of accused.
12. The learned counsel for accused referring to evidence of PW2 would submit that PW2 was not even aware of the name of accused. PW2 has given the name of accused as Gopalaswamy in the first information, which would demonstrate that PW2 had lodged the first information in post-haste, without confirming the name of accused. 18
13. In order to appreciate this submission, I have gone through the contents of first information marked as Ex.P.2.
14. It is seen from the contents of first information that PW2 has given the name of accused as Gopalaswamy and his designation as Officer of Sub-Treasury at Magadi. It is not in dispute and cannot be disputed that accused was the only officer of Sub-Treasury at Magadi. The name of accused was given as Gopalaswamy. The name of accused was not known to PW2. This would establish that PW2 had no grudge or animosity against the accused. Above all, substantive evidence given by PW2 in relation to identification of accused before trial court has not been controverted. Therefore, discrepancy in the description of name of accused in the first information cannot be a ground to discredit evidence of PW2.
15. I see from the tenor of cross-examination of PW2 that accused has taken several defences to discredit evidence of PW2. It has been suggested to PW2 that he had insisted 19 accused to give a bearer cheque instead of a crossed cheque. It was also suggested to PW2 that there was ban to honour GPF bills.
PW2 was a school teacher. It looks improbable that he had insisted for issuance of bearer cheque. PW2 was aware that payment of pensionary benefits would be only through crossed cheques. Above all, PW2 did not stand to gain by insisting for issuance of bearer cheque. It is not the case of accused that PW2 did not have bank account to insist for a bearer cheque.
16. It was suggested to PW2 that there was ban to honour GPF bills, however accused has not produced circular to the effect that there was prohibition for honouring GPF bills. It was also suggested to PW2 that he had forcibly thrust tainted currency notes into shirt pocket of accused. PW2 has denied this suggestion. This defence version of accused that PW2 thrust tainted currency notes into pocket of accused has to be considered along with the contents of Ex.P.5, 20 which is the written statement given by accused immediately after he was trapped by PW7. In Ex.P.5, accused has stated that on 11.11.2002 at about 1.45 p.m. or 2 p.m., when he was in a computer room, PW2 demanded accused to pass his pension bills and attempted to thrust tainted currency notes into shirt pocket of accused and accused warded off such attempt by PW2. PW2 did not stop at that. When accused had gone to a hotel to take food during lunch recess, PW2 had followed accused. When the accused was taking food in a hotel, PW2 thrust tainted currency notes into his shirt pocket. PW2 had kept the amount separately. When PW7 (Police Inspector) visited the office of accused, the accused promptly returned the amount to PW7. PW2 had thrust tainted currency notes in furtherance of pre-plan. The accused was enjoying good reputation. PW2 had hatched a plan to spoil good reputation of accused. There was no delay in passing bills. There was ban for honouring GPF bills. The accused had not demanded bribe from PW2 and requested PW7 to drop investigation. The accused did not stop at that. 21 The accused had given further written statement reading as follows:-
There was ban to honour GPF bills. Therefore, accused had not passed GPF bill of PW2. The accused had not demanded bribe from PW2. PW2 at the instance of some persons had hatched a pre-plan and forcibly thrust tainted currency notes into shirt pocket of accused. The accused, by then, had remaining service of 8 months. Therefore, accused requested Investigating Officer (PW7) to drop investigation.
17. As already stated, accused having contended that there was ban to honour GPF bills has not produced any circular to substantiate the same.
During cross-examination of PW2, it was not suggested to PW2 when he entered the office of accused, accused was in computer room and PW2 tried to thrust tainted currency notes into shirt pocket of accused and it was resisted by accused. It was suggested to PW2 that he had followed accused to a hotel to which accused had gone 22 to take food during lunch recess on 11.11.2002. It was not suggested to PW2 that he had thrust tainted currency notes into shirt pocket of accused and accused had kept these notes separately and promptly handed over the same to PW7 after accused was trapped. On the other hand, it was suggested to PW2 that when accused was taking food in a hotel, PW2 attempted to thrust tainted currency notes into his shirt pocket, at that time, PW7 (Police Inspector) came and apprehended accused. PW2 has denied this suggestion. This suggestion would lead to an inference that accused has tried to establish that he was trapped by PW7 (Police Inspector) in a hotel.
It is interesting to notice that accused in his written statement (Ex.P.5) has not stated that he was trapped by Police Inspector (PW7) in a hotel. It looks improbable that Police Inspector (PW7) would trap the accused in a hotel where he was taking food.
At this stage, it is necessary to state that PW2 had retired from service as the Head Master of Higher Primary 23 School at Vajarahalli, Magadi Taluk. The evidence on record does not disclose that PW2 had any grudge or enmity against accused. PW2 had no scores to settle with accused. Therefore, evidence of PW2 cannot be discredited.
18. The learned counsel for accused would submit that evidence of PW2 and PW4 regarding demand and acceptance of bribe by accused is contradictory.
19. PW2 has deposed; when he had met accused in the chamber of accused, PW4 was standing outside door of chamber of accused; PW4 has deposed that he had accompanied PW2; PW2 & PW4 entered the Office of Sub- Treasury at Magadi; accused was in his chambers; PW2 & PW4 met accused; PW2 requested accused to release the amount; accused questioned PW2 whether he has brought money; PW2 removed tainted currency notes from his shirt pocket and handed over the same to accused; tainted currency notes were in a cover; accused counted tainted 24 currency notes and kept the same in shirt pocket, thereafter PW2 came out and gave a pre-determined signal to PW7. PW2 has deposed; PW4 was standing outside door of chamber of accused. The rough sketch marked as Ex.P.7 would reveal that there was a corridor in front of chamber of accused. PW4 has deposed that he was standing at a distance of 2 to 3 metres. In the circumstances, PW4 was standing at a place from where he could observe as to what was transpiring between accused and PW2. PW2 has not deposed that tainted currency notes were kept in a cover.
20. It is noticed from cross-examination of PW2 that it was not suggested to PW2 that he had thrust tainted currency notes into shirt pocket of accused in the chambers of accused. It was suggested to PW4 that PW2 had forcibly thrust tainted currency notes into shirt pocket of accused and PW7 apprehended accused.
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21. In the discussion made supra, I have narrated the contents of Ex.P.5, the statement given by accused immediately after he was trapped by PW7 (Police Inspector). The conduct of accused immediately after trap is not consistent with suggestions put to PW2 & PW4. As per the statement given by accused, at first instance, PW2 had attempted to thrust tainted currency notes when accused was in computer room and accused resisted the same. Later when accused had gone to hotel to take food during lunch recess, PW2 had followed accused and thrust tainted currency notes into shirt pocket of accused; accused had kept tainted currency notes with him and promptly handed over the same to PW7 after he was trapped. Therefore, discrepancies in the evidence of PW2 & PW4 whether tainted currency notes were kept in a cover and given to accused or the tainted currency notes were given to accused do not loom large.
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22. In a decision reported in (2012) 8 SCC 527 (in the case of Syed Ahmed Vs. State of Karnataka), the Supreme Court has held that minor discrepancies which do not affect substratum of prosecution case or impact on core issues will be ignored. Therefore, discrepancy highlighted by the learned counsel for accused to discredit the evidence of PW2 cannot be accepted.
23. PW3-Chennabasavaiah was also one of the witnesses of raiding party. PW3 has deposed about preparations made by PW7 to trap accused and the purpose for which trap was laid. PW3 has deposed; that PW2 & PW4 reached the office of Sub-Treasury at Magadi; while PW3, PW7 and other Lokayukta staff stood near jeep, which had been parked at a distance of 100 metres; after one hour, PW2 flashed pre- determined signal; after receipt of signal, PW7 and other members of raiding party including PW3 proceeded to the office of Sub-Treasury at Magadi; PW7 surrounded accused and introduced himself to accused; PW7 prepared sodium 27 carbonate solution in two bowls and hands of accused were dipped in sodium carbonate solution; colourless solution turned into pink colour; PW7 collected resultant handwash in separate bottles, thereafter PW7 removed tainted currency notes from shirt pocket of accused; PW7 provided alternate shirt to accused and portion of pocket of shirt of accused was dipped in sodium carbonate solution, which turned into pink colour; PW7 collected resultant handwash in separate bottles.
During cross-examination, PW3 has denied the suggestion that accused was in computer room. PW3 has deposed that when he entered the chamber of accused, tainted currency notes were in shirt pocket of accused. PW3 has denied the suggestion that accused told PW7 that PW2 had thrust tainted currency notes into shirt pocket of accused. PW7 did not seize tainted currency notes soon after he entered the office of accused. PW3 has denied suggestion that members of raiding party viz PW2 to PW4 & PW7 entered into the chamber of accused in a team and PW2 28 thrust tainted currency notes into shirt pocket of accused. The suggestion put to PW3 is at variance with defence version. It looks highly improbable that PW7, PW2 to PW4 had entered chamber of accused in a team and PW2 had thrust tainted currency notes into shirt pocket of accused, which in fact was never suggested to PW2 and this defence version is not consistent with immediate statement given by accused.
24. The learned counsel for accused referring to evidence of PW3 would submit that PW3 has admitted that it was a second trap case, wherein he was a witness for Lokayukta Police. PW3 had been taken as a witness of raiding party. PW3 has admitted this suggestion, however by such suggestion, it is not possible to hold that PW3 was a stock witness and he was under mercy of PW7. The evidence on record does not reveal PW3 had grudge or enmity against accused.
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25. PW4-Shivanna Gowda has deposed; he had accompanied PW2 to the office of accused; accused demanded bribe from PW2; PW2 gave tainted currency notes to accused; accused removed tainted currency notes from a cover and counted the same and thereafter PW2 came and flashed pre-determined signal and PW7 came and trapped accused.
During cross-examination, it was suggested to PW4 that PW2 had forcibly thrust tainted currency notes into shirt pocket of accused, immediately accused was apprehended by the PW7 (Police Inspector). PW4 has denied this suggestion.
26. The learned counsel for accused referring to evidence of PW4 would submit that PW2 has not stated that PW7 had kept tainted currency notes into a cover and PW4 has not deposed that PW2 has not handed over tainted currency notes to accused.
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27. At this juncture, it is relevant to state that accused has come up with defence theory that PW2 had thrust tainted currency notes into shirt pocket of accused. The accused has put-forth different versions. The first version is that PW2 tried to thrust tainted currency notes into shirt pocket of accused when he was in computer room and accused warded off the same. The second version is that PW2 followed accused to a hotel, where accused had gone to take food during lunch recess. At that time, PW2 forcibly thrust tainted currency notes into shirt pocket of accused when he was taking food. The accused had kept tainted currency notes separately and promptly handed over tainted currency notes to PW7 when he was trapped. The third version is that members of raiding party viz PW2 to PW4 & PW7 simultaneously entered the chamber of accused. PW2 thrust tainted currency notes into shirt pocket of accused and PW7 immediately apprehended accused and recovered tainted currency notes and thus there was a farce of recovery of tainted currency notes from possession of accused. 31
28. It is true that there is discrepancy in the evidence of PW4. PW2 has deposed that PW4 was standing at a distance of 2 to 3 metres when PW2 had met accused. PW4 has deposed that he had entered the chamber of accused along with PW2.
PW4 was examined on 29.09.2008 in relation to incident of trap, which had taken place on 11.11.2002, almost after a lapse of 5½ years. This discrepancy can be attributed to lapse of memory. The substratum of evidence of PW4 cannot be discredited on the basis of this discrepancy.
29. The evidence of PW5-Sampath relates to preparation of rough sketch, which has not been controverted by accused.
30. PW7-N.T.Ashwathanarayana has given evidence relating to investigation and preparations for trap of accused.
32
During cross-examination of PW7, learned counsel for accused has tried to highlight discrepancy in the name of accused in the first information and evidence given by PW2.
31. As already discussed, accused was the only Officer of Sub-Treasury at Magadi. The first information was lodged against the Officer of Sub-Treasury at Magadi. It is probable that PW2 was not aware of the name of accused. Therefore, PW2 had given the name of accused as Gopalaswamy instead of Narayanaswamy.
32. In the discussion made supra, I have held that this discrepancy would demonstrate that accused was not known to PW2. PW2 did not have grudge or enmity against accused to falsely implicate accused. It is interesting to notice that during cross-examination of PW2, it was not suggested to PW2 that raiding party consisting of PW7 and other members of raiding party and PW2 had entered the office of 33 accused as a team and PW2 thrust tainted currency notes into shirt pocket of accused to make a farce of recovery.
During cross-examination of PW7, defence has made an unsuccessful attempt to establish that bills relating to DCRG amount and commutation amount of PW2 were not pending with accused as on 11.11.2002 and accused had cleared the same on 09.11.2002. The accused has also tried to establish that there was ban to honour GPF bills during relevant period. In fact, PW7 after trap has seized documents relating to bills submitted by PW2 and they were pending with accused. Therefore, defence of accused that he had discharged his duties and bills of PW2 were not pending with him on 11.11.2002 cannot be accepted.
33. Under section 20 of the Act, in a trial for offences punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of Section 13, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other 34 person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
34. In a decision reported in AIR 1973 SC 910 (in the case of Man Singh Vs. The State of Haryana), the Supreme Court has held:-
"5. Now the crucial question in this case is whether the appellant was wearing the shirt from which the currency notes, which were marked, were recovered. If the shirt was lying elsewhere, the Special Judge might have legitimately taken the view which he did, but if the shirt was recovered from his person and the money was found therefrom, then clearly it was incumbent under the law on the appellant to 35 show how he came into possession of that money. Even according to him that money did not belong to him and he never claim that it had come from any other source except that it had been planted in the pocket of his shirt by Amar Singh PW-1."
In a decision reported in (2007) 1 SCC (Cri) 711 (in the case of B.Noha Vs. State of Kerala & another), the Supreme Court while considering detailed statement filed by accused, wherein he has stated that he never received any amount from PW1 and PW1 came to his office and forcibly thrust into his pocket has held "when an amount is found to have been passed to the public servant, the burden is on public servant to establish that it was not by way of illegal gratification and burden was not discharged by accused."
In the case on hand, accused has not denied recovery of tainted currency notes from his possession. Therefore, burden of proof would shift upon accused that he had not obtained the amount as illegal gratification. The accused has come out with defence that tainted currency notes were 36 thrust into his shirt pocket by PW2. The version of accused immediately after he was trapped is two fold. On the date of trap, accused was in computer room. PW2 came and tried to thrust tainted currency notes and it was warded off by accused. On the same day, when accused had gone to hotel to take food during lunch recess, PW2 followed him to hotel and thrust tainted currency notes into shirt pocket of accused. The accused had kept tainted currency notes separately and promptly handed over to PW7 immediately after he was apprehended in the office of Sub-Treasury at Magadi.
The accused had sought to establish that PW2 thrust tainted currency notes when he was in his chamber, immediately, he was apprehended by PW7. The accused has also sought to establish that members of raiding party, PW2 to PW4 and PW7 simultaneously rushed to his chambers in a team and PW2 thrust tainted currency notes into shirt pocket of accused and immediately PW7 apprehended him and recovered tainted currency notes from his possession. 37 The recovery of tainted currency notes from possession of accused was a farce. These versions put forth by accused cannot be reconciled and they do not stand the test of preponderance of probabilities. Therefore, accused has failed to rebut the presumption under section 20 of the Act. The learned Special Judge on proper appreciation of evidence has held accused guilty of offences punishable under sections 7 & 13(1)(d) r/w section 13(2) of the Act.
35. On re-appreciation of evidence, I do not find any reasons to interfere with the impugned judgment of conviction.
36. The learned Special Judge having held accused guilty of offences punishable under sections 7 & 13(1)(d) r/w 13(2) of the Act has sentenced accused to undergo simple imprisonment for a period of six months and pay fine of Rs.20,000/-, in default to undergo simple imprisonment for a period of four months.
38
37. In a decision reported in (2007) 1 SCC (Cri) 520 (in the case of State, Represented by Inspector of Police, Pudukottai, TN Vs. A.Parthiban), the Supreme Court has held:-
"5. The stand that the respondent could not have been simultaneously convicted for the offences relatable to Section 7 and Section 13(2) read with Section 13(1)(d) of the Act, as held by the High Court is clearly unacceptable. Section 71 IPC provides the complete answer. The same reads as follows:
"71. Limit of punishment of offence made up of several offences.- Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or 39 Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences."
6. The position is further crystalised in Section 220 of the Cr.P.C. the same reads as follows:
"220. Trial for more than one offence.-(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or 40 those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860)."
7. The crucial question is whether the alleged act is an offence and if the answer is in the 41 affirmative, whether it is capable of being construed as offence under one or more provisions. That is the essence of Section 71 IPC, in the backdrop of Section 220 Cr.P.C.
8. Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different Sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments, the offender should not be punished with a more severe punishment 42 than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year."
38. In the case on hand, the prosecution has established that accused had demanded and accepted illegal gratification from PW2. Therefore, prosecution has proved offence under section 7 as also under section 13(1)(d) of the Act. Therefore, learned Special Judge was not justified in not imposing minimum sentence provided under section 7of the Act.
39. The accused was aged about 57 years at the time of incident. He has suffered trauma of trial and post-conviction trauma. Therefore, I deem it proper to sentence accused to undergo simple imprisonment for a period of one year and pay fine of Rs.20,000/-, in default to undergo simple 43 imprisonment for a period of four months for offences punishable under sections 7 & 13(1)(d) r/w 13(2) of the Act.
40. In the result, I pass the following:-
ORDER Criminal Appeal No.716/2009 filed by accused is dismissed. Criminal Appeal No.142/2010 filed by State is accepted. The impugned judgment is modified as follows:-
The conviction of accused for offences punishable under sections 7 & 13(1)(d) r/w 13(2) of the Act is confirmed.
The accused is sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.20,000/-, in default to undergo simple imprisonment for a period of four months for offences punishable under sections 7 & 13(1)(d) r/w 13(2) of the Act. The payment of compensation of Rs.5,000/- to PW2, in terms of the impugned judgment is confirmed. If accused has undergone detention during period of trial, the same shall be given set off as provided under section 428 Cr.P.C.44
Office is directed to send back records along with a copy of this judgment to trial court to secure the accused and implement the sentence in terms of this judgment.
Sd/-
JUDGE SNN