Karnataka High Court
The State Of Karnataka, vs Narayanaswamy S/O. Narasimhappa on 29 September, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.A.NO.2506 OF 2012
BETWEEN
THE STATE OF KARNATAKA,
THROUGH LOKAYUKTA POLICE, KOPPAL,
REPTED. BY SPL. PUBLIC PROSECUTOR
FOR LOKAYUKTA POLICE, DHARWAD.
...APPELLANT
(BY SRI. ANIL KALE, ADVOCATE)
AND
NARAYANASWAMY S/O. NARASIMHAPPA
AGE: 37 YEARS, OCC: STENOGRAPHER,
WORKING IN THE OFFICE OF
ASST. COMMISSIONER, KOPPAL,
DIST:KOPPAL.
...RESPONDENT
(BY SRI. A. S. PATIL, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGEMENT AND ORDER OF ACQUITTAL PASSED BY THE
SESSIONS & SPL. JUDGE, KOPPAL, DATED 12.08.2011 IN SPL.
CASE (P.C.) NO.01/2007 FOR THE OFFENCES P/U/S.7, 13(1)(D)
R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988 BE SET
ASIDE AND CONVICT AND SENTENCE THE RESPONDENT/
ACCUSED FOR THE OFFENCES P/U/S 7, 13(1)(D) R/W SEC.
13(2) OF PREVENTION OF CORRUPTION ACT, 1988.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
24.09.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State through Lokayukta Police, Koppal has preferred this appeal under Section 378(1)(b) r/w section 378(3) of Cr.P.C., challenging the judgment and order of acquittal passed by the learned Sessions Judge and Special Judge, Koppal in Spl.Case(P.C)No.1/2007 dated 12.08.2011 whereby he has acquitted the accused- respondent herein for the offences punishable under sections 7, 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act").
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The facts leading to the case are that the respondent-accused is the stenographer working in the office of Assistant Commissioner, Koppal. That the -3- complainant-Fakeerappa has lodged complaint with Lokayukta police. He is resident of Talabal village, Yelburga Taluk and he owns land bearing survey No.134/E measuring 4 acres 6 guntas and out of this land, 2 acres 3 guntas was wrongly mutated in the name of Shantavva W/o. Bhimappa Waddar in the year 2002. Hence, it is alleged that after getting knowledge of wrong entry, he approached the Assistant Commissioner, Koppal by filing appeal and the Assistant Commissioner passed order dated 28.02.2006 in favour of the complainant by directing the Tahsildar Yelburga to cancel the name of Smt. Shantavva and to enter the name of the complainant. That after passing the order, the file was with accused, who is stenographer cum P.S. to Assistant Commissioner Koppal and in order to send the file from office of the Assistant Commissioner to the office of the Tahsildar, the accused demanded bribe of Rs.5,000/-. It is further alleged that subsequently after negotiations, it was settled for Rs.4,000/- and as the complainant was not having any intention to pay the bribe amount, he lodged complaint on -4- 17.05.2006 at 10.00 a.m. by approaching Lokayukta Police at Koppal. Then on the basis of the complaint, CW17 arranged for trap and he secured two government officials as Panchas and complainant has also produced the amount of Rs.4,000/- to be paid as bribe. The said amount was consisting of six notes of Rs.500/- and ten notes of Rs.100/- denominations and they were smeared with phenolphthalein powder and Pancha-I counted the notes and kept the same in the pocket of the complainant. The serial numbers of the notes were also recorded. Thereafter, the finger wash of Pancha-I were taken by dipping his hands in sodium carbonate solution, which has turned into pink colour. Then he explained the importance of phenolphthalein powder and how it reacts with sodium carbonate and complainant was given instructions to pay the amount only in case demand, and CW2- Chandrashekhar was directed to act as a shadow witness, while CW3/Dr.Anand was the other co-pancha. The entrustment mahazar was also drawn in this regard in the office as per Ex.P8.
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4. Then the raiding party, along with the complainant and shadow witness came to the District Administration building at Koppal and there the complainant and shadow witness-CW2/Chandrashekhar went inside the office and other raiding party members were waiting for signal. It is alleged that at 1.15 p.m., the complainant came to the corridor and passed the signal as directed, and thereafter they reached the spot and the amount was recovered from the left pant pocket of the accused and his statement was also recorded. It is also alleged that his hand wash had shown positive to phenolphthalein test and the file was also secured from the chambers of Assistant Commissioner and same was also seized. Then trap being successful, a trap mahazar was drawn as per Ex.P9. Then the Trap Laying Officer (TLO) has also taken the outward and inward register copies, attendance certificates etc., then returned to Lokayukta office along with accused and accused was produced before the Court and initially he was remanded to judicial custody but subsequently, he was enlarged on bail. The -6- investigating officer then continued investigation and recorded the statement of material witnesses and he has also obtained sanction from the competent authority and having found that there is sufficient material, he has submitted the charge sheet against the accused.
5. After submission of the charge sheet, as there are sufficient grounds, the learned Special Judge has taken cognizance of the alleged offences. The accused was secured and the charges were framed against him and they were read over and explained to him and he pleaded not guilty. To prove the guilt of the accused, the prosecution has examined in all twelve witnesses as PW1 to PW12 and Ex.P1 to Ex.P32 were marked along with M.O.1 to M.O.13. After conclusion of the evidence of the prosecution, the statement of the accused under section 313 of Cr.P.C., came to be recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial and in his statement recorded under -7- section 313 of Cr.P.C., he has specifically asserted that the complainant has offered him the tainted money, but he denied but the complainant has forcibly put the cash in his pant pocket, while he was standing and suddenly went away and before he could react, the Lokayukta police came there and apprehended him. After hearing the arguments and after perusing the oral as well as documentary evidence, the learned Sessions Judge has acquitted the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of the Act. Being aggrieved by this judgment of acquittal the state has preferred this appeal through Lokayukta police Koppal.
6. Heard the arguments advanced by the learned counsel for the appellant and the learned counsel for respondent-accused. Perused the records of the Trial Court in detail.
7. The learned counsel for appellant would contend that the judgment of acquittal passed by the Trial Court is contrary to the law and facts as well as -8- circumstances of the case. He would contend that trap is successful and complainant has specifically deposed regarding the demand and acceptance and amount is recovered from the custody of the accused. He would contend that the evidence clearly establish that the recovery was at the instance of the accused from his pant pocket, which has also shown positive to phenolphthalein test and the file was also recovered from the custody of the accused. He would also contend that PW1 and PW3 to 5 have specifically deposed regarding the case of the prosecution and nothing was elicited and in return, the accused has admitted the transfer of the money and hence he would contend that when the recovery is established, the presumption under section 20 of the Act is required to be drawn in favour of the prosecution and no rebuttal evidence is placed. Hence, he would contend that the Trial Court has failed to appreciate the oral and documentary evidence and as such sought for allowing the appeal by setting aside the impugned judgment of acquittal. He has also sought for convicting the accused.
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8. The learned counsel for respondent-accused would contend that the evidence of the prosecution itself discloses that the acceptance of bribe as well as demand and acceptance is not at all proved as shadow witness has turned hostile regarding demand and acceptance. He would also contend that mere recovery without proof of demand and acceptance has no relevancy and the sanction order discloses that the sanctioning authority has not applied its mind and he also contends that the evidence is also inconsistent regarding money being found in the left pant pocket or right pant pocket of the accused and considering the fact that shadow witness has acted against the directions of the Lokayukta to accompany the complainant itself evident that the statement of the complainant is not supported by any of the independent witnesses and admittedly he is interested witness and that does not amount to proof of demand and acceptance. Hence, he would seek for dismissal of the appeal by confirming the judgment of the Trial Court on the ground -10- that the Trial Court has appreciated all these aspects in detail.
9. Having heard the arguments and perusing the records, now the following point would arise for my consideration.
"Whether the judgment of the Trial Court is arbitrary, erroneous and capricious so as to call for any interference by this Court?"
10. It is an undisputed fact that the accused is working as a stenographer in Assistant commissioner Office, Koppal. Further there is no serious dispute that the complainant has challenged the mutation entry in the name of Shantavva and his RTS Appeal came to be allowed with direction to delete the name of Shantavva in respect of disputed property. It is alleged that though the order came to be passed on 28.02.2006, till 17.05.2006 the order was not intimated and the accused kept the file in his custody and demanded and accepted Rs.4,000/- for forwarding the file to Tahsildar office, Yelburga for -11- complying the order of the Assistant Commissioner. To prove the guilt of the accused, prosecution has examined in all 12 witnesses.
11. PW1/Nagaraj is the Assistant Commissioner. He did depose regarding he dictating the order and further admitted that after pronouncement of the order, it was the duty of the outward clerk to send the file to the concerned Tahsildar office.
12. PW2/Junior Engineer has deposed regarding he drawing sketch while PW3/Rajashekhar Hiremath is the village accountant, who was working on deputation in Tahsildar office and he claimed that he did not receive the file after pronouncement of the order.
13. PW4/Fakeerappa is the complainant while PW5/Chandrashekhar is the shadow witness. Though PW5 has supported the case of the prosecution but regarding material aspect of demand and acceptance he turned hostile. PW6 is the second pancha and PW7 is the Lokayukta P.C., while PW8 is the photographer. PW9 is the -12- sanctioning authority and PW10 is also Lokayukta PC while PW11 and PW12 are the investigating officers. Ex.P3 is the attendance register while Ex.P4 is the service particulars of accused. Ex.P6 is the sketch and Ex.P7 is the complaint, Ex.P8 is the entrustment mahazar, Ex.P9 is the trap mahazar. Ex.P24 is the memo of explanation of the accused after trap, wherein he has taken a similar stand that complainant has forcibly thrusted the amount. Ex.P29 is the prosecution sanction order. Ex.P32 is the chemical examiners report. M.O.1 is the tainted amount of Rs.4,000/- and M.O.2 to 12 are the sample phenolphthalein powder, sodium carbonate and hand wash taken during the entrustment mahazar as well as trap mahazar. M.O.13 is the seal.
14. PW1-Assistant Commissioner has deposed that the accused was stenographer and he used to type the orders dictated by him and he has also admitted that he has dictated the order in this case. In the cross- examination, he deposed that after pronouncement of the -13- orders, it was the duty of the outward clerk to send the file to the concerned office.
15. PW2/Junior Engineer has simply deposed regarding drawing of the sketch while PW3 is the clerk who stated that the file was in the custody of the accused. In his cross-examination he admitted that after passing the orders, the file was required to be given to the office of the manager and then it is required to be forwarded to the Tahsildar office. But on what basis he deposed regarding the file was in the custody of the accused is not at all forthcoming.
16. PW4 is the complainant and in his evidence, he deposed regarding accused demanding bribe of Rs.4,000/- for forwarding his file. He has also deposed regarding he lodging the complaint and deposed regarding he approaching the accused, demand and acceptance and also payment of the bribe amount. He claimed that amount was kept by the accused and he denied that he has thrusted the amount in the pant pocket of the accused. Further in -14- his cross-examination, it reveals that nothing was written in the Assistant Commissioner's Office. As per the case of the prosecution, trap mahazar was written in the office of the Assistant Commissioner as per Ex.P9 from 1.30 p.m. to 4.15 p.m. But PW4 has specifically asserted that no mahazar was drawn in the office of the Assistant Commissioner.
17. PW5/Chandrashekhar is the material shadow witness. Though he has deposed regarding he accompanying the complainant, Lokayukta drawing entrustment mahazar and he was being directed to observe the proceedings between the accused and the complainant, but he has specifically deposed that he did not accompany the complainant inside the chambers of the accused and he turned hostile for demand acceptance. To this extent, this witness was treated as hostile and was cross-examined by the prosecution, but he has denied the suggestion that he accompanied the complainant inside the chambers of the accused and witnessed the demand -15- and acceptance by the accused. Very interestingly, in the cross-examination, PW5 has further admitted in Para 11 that while he was in passage, the police were possessing Rs.4,000/- and the police have summoned the accused outside and asked him to count Rs.4,000/- and accordingly, he has counted it. This cross-examination of PW5 on page 9 at para 11 reads as under:
"11. £Á£ÀÄ ¥Áå¸ÉÃdzÀ°è ¤AvÁUÀ ¥ÉÆð¸ÀgÀ ºÀwÛgÀ gÀÆ.4 ¸Á«gÀ zÀÄqÀÄØ EvÀÄÛ. ¥ÉÆð¸ÀgÀÄ DgÉÆæ £ÁgÁAiÀÄt¸Áé«ÄAiÀĪÀgÀ£ÀÄß ºÉÆgÀUÉ PÀgÉzÀÄ F 4 ¸Á«gÀ gÀÆ. FvÀ£À PÀqÉUÉ PÉÆlÄÖ Jt¸ÀÄ CAzÀgÄÀ D ¥ÀæPÁgÀ £ÁgÁAiÀÄt¸Áé«Ä Jt¹zÀ£ÀÄ JAzÀgÉ ºËzÀÄ. Jt¹zÀ £ÀAvÀgÀ ¥ÁåAn£À eÉé£À°è gÀÆ.4 ¸Á«gÀ ElÄÖPÉÆà CAzÀgÀÄ D¥ÀæPÁgÀ DvÀ£ÀÄ ElÄÖPÉÆAqÀ£ÀÄ JAzÀgÉ ºËzÀÄ. ¥ÉÆð¸ÀgÀÄ £À£Àß «ZÁgÀuÉAiÀÄ£ÀÄß ªÀiÁr AiÀiÁªÀÅzÀÄ ºÉýPÉAiÀÄ£ÀÄß §gÉzÀÄPÉÆAr®è. £Á£ÀÄ FUÀ ªÀÄÄ.ªÀiÁ 13 gÀ°èAiÀÄ ¹Ã® £ÉÆÃrzÉ EzÀ£ÀÄß CªÀgÀÄ £À£Àß PÀqÉ PÉÆqÀĪÁUÀ ¹Ã® ªÀiÁr PÉÆqÀ°¯Áè CzÀ£ÀÄß »ÃUÉ N¥À£À ªÀiÁr PÉÆnÖzÀÝgÀÄ. F ¹Ã®zÀ CPÀëgÀ G¯ÁÖ PÁt¸ÀÄvÀÛzÉ ºÁQzÀgÉ F ¹Ã®£ÀÄß ¯ÉÆÃPÁAiÀÄÄPÀÛ ¥ÉÆð¸ÀgÀÄ J°èAiÀÄÄ G¥ÀAiÉÆÃUÀ ªÀiÁr®è D ¹Ã®£ÀÄß ºÉƸÀzÀÄ PÉÆnÖzÁÝgÉ JAzÀgÉ ºËzÀÄ. J¹ D¦üøÀ£À°è AiÀiÁªÀÅzÉà ªÀ¸ÀÄÛªÀ£ÀÄß d¥ÀÄÛ ªÀiÁr®è JAzÀgÉ ºËzÀÄ. £À£Àß ªÀÄÄRå ¥ÀjÃPÉëAiÀÄ°è ºÉýzÀ «µÀAiÀĪÀ£ÀÄß ¯ÉÆÃPÁAiÀÄÄPÀÛ ¥ÉÆð¸ÀgÀÄ D jÃw ºÉüÀÄ CAvÁ ºÉýzÀÝjAzÀ D jÃw ºÉýzÉÝãÉ. £À£Àß ¸ÀªÀÄPÀëªÀÄzÀ°è DgÉÆæ PÀqɬÄAzÀ AiÀiÁªÀÅzÀÄ zÀÄqÀØ£ÀÄß ¥ÉÆð¸ÀgÀÄ d¥ÀÄÛ ªÀiÁr®è."-16-
18. This admission by PW5 goes a long way in falsifying the case of the prosecution as at the first instance, he denied the demand and acceptance and later he has admitted that the police handed over the amount to the accused with a direction to count it. In that event, the allegations of the prosecution that the amount was found in the pocket of the accused are not at all substantiated. When police have asked the accused to count the amount, then the allegations of the prosecution that the hand wash turned positive and recovery was made, holds no water. Interestingly, when PW5 has given this admission in the cross-examination, no leave was sought by the prosecution to cross-examine further this witness on this point, which demolished the entire story of the prosecution.
19. PW6 is a co-pancha and he deposed regarding demand, drawing entrustment mahazar and recovery of the amount, but in view of the evidence of PW5, the evidence of this witness does not have any relevancy. -17- PW7-Gururaj is the photographer who has also partially turned hostile.
20. PW9 is the sanctioning authority and though he has deposed regarding granting of sanction after getting himself satisfied, in his cross-examination he has admitted that furnishing the order copy of Assistant Commissioner is not within the work purview of the accused and dispatching file is also not within the purview of the accused. When he was questioned as to on what basis he has formed opinion regarding prima facie case, he is unable to explain and deposed that he cannot give any explanation in this regard. This evidence of PW9 also discloses that he has not applied his mind in this regard. PW11 and PW12 are the investigating officers.
21. The main contention of the learned counsel for appellant is that when the recovery is established, it is mandatory on the part of the Court to draw presumption under section 20 of the Act and accused is required to rebut the said presumption. But for drawing presumption, -18- initial burden of recovery from the custody of the accused is required to be proved. Further, it should be corroborated by the evidence of demand and acceptance. In the instant case, PW5 shadow witness has turned hostile to demand and acceptance though the complainant has supported the case of the prosecution in this regard. Further, the cross- examination of PW5 itself establishes that the Lokayukta police have handed over the tainted amount to the accused and asked him to count, which completely demolishes the case of the prosecution regarding demand and acceptance.
22. Further, PW4, who is the complainant, in his cross-examination has specifically asserted that on that day, there was no conversation between himself and the accused and he paid the amount to the accused and he kept the amount in his pant pocket. Hence, the cross- examination of the complainant also discloses that there was no demand as on that date. Now the only question is recovery but the evidence of PW5 does not establish that -19- there is any recovery from the custody of the accused as his evidence discloses that Lokayukta police asked the accused to count the amount and then his hand wash was taken by keeping amount in his pant pocket.
23. Apart from that, the statement of the accused recorded under section 313 of Cr.P.C., discloses that the accused has specifically asserted that he has sent the typed order to the concerned and it is not within his domain to send the file to Tahsildar, Yelburga. Admittedly, the duty of the accused is only to type the order and place it before the Assistant Commissioner for signature and then the file will go to the concerned clerk. The evidence as well as trap mahazar/Ex.P9 discloses that after the alleged trap, the file was secured from the chambers of Assistant Commissioner. Why the Assistant Commissioner has kept the file in his chamber is also not explained by the prosecution. The order was dated 28.02.2006. The trap was on 17.05.2006. In this period, the complainant could have approached the Assistant Commissioner to -20- ascertain as to why there is a delay in dispatching the order. Apart from that, the investigating officer has not ascertained as to when the accused typed the order dictated by the Assistant Commissioner and placed it for signatures. He would have secured material evidence regarding when exactly the order was typed, but the investigating officer has not prepared to take any steps in this regard and there is no explanation. He did not record the statement of the Assistant Commissioner as to why even the Assistant Commissioner has not taken any steps for such an inordinate delay in dispatching the order for nearly 2½ months. Further, it is to be noted here that it is not the case of the prosecution that the accused has not typed the dictated order. The allegations of the prosecution is that, the accused kept the file and in that event the order should have been signed by the Assistant Commissioner. Hence, it was incumbent on the part of the investigating officer to ascertain as to when the order was signed by the Assistant Commissioner. Further, the sanctioning authority as well as Assistant Commissioner -21- admits that after pronouncement of the order, the file will go to the concerned section and there was no occasion to return the file to the stenographer. Further, Ex.P9 itself discloses that the file was secured from the chambers of Assistant Commissioner. These anomalies were not explained and hence, looking to these anomalies, regarding recovery, demand and acceptance, the presumption under section 20 of the Act cannot be drawn.
24. The cross-examination of complainant itself discloses that there was no demand. Apart from that, his evidence is also not corroborated by the investigating agency. There is also material inconsistency in the evidence regarding amount being kept in the right side pant pocket or left side pant pocket of the accused. These anomalies also not properly explained. The accused has specifically asserted that the complainant has forcibly thrusted the amount. The evidence of PW5 discloses that the amount was asked to be counted by the accused by Lokayukta officers and it was kept in his pant pocket. -22- Further, there is no explanation as to why PW5 did not enter into the chambers of the accused. Even the cross- examination of the complainant does not establish the demand and recovery of the amount. The evidence is inconsistent. Even the sanctioning authority has also not applied its mind and considering all these facts and circumstances, it is evident that the prosecution has failed to prove the guilt of the accused regarding he demanding Rs.5,000/- and accepting Rs.4,000/- from the complainant as illegal gratification. No evidence is placed to show that the accused was the custodian of the file.
25. The learned counsel for the appellant has placed reliance on a decision of the Hon'ble Apex Court in the case of Vinod Kumar Garg v. State (Government of National Capital Territory of Delhi) in Criminal Appeal No.1781/2009 but the facts and circumstances of the case are entirely different and as such, the principles enunciated in the above cited decision cannot be made -23- applicable considering lot of anomalies forthcoming in the present case in hand.
26. On the contrary, the learned counsel for respondent has placed reliance on a decision of the Hon'ble Apex Court in the case of V. Sejappa v. State reported in AIR 2016 SC 2045. He has also placed reliance on an unreported decision of this Court in Criminal Appeal No. 58/2007 dated 09.11.2010. The principles enunciated in the said decisions are directly applicable and in the instant case there is no evidence to show that any work was pending with the accused. Further, there is no evidence to show that the accused was the custodian of the file. The investigating officer has also not made any efforts to ascertain as to when the accused typed the dictated order and handed over it to the Assistant Commissioner for signatures. All these material aspects were not investigated by the investigating officer and in mechanical way, he has submitted the charge sheet against the accused. The evidence on record does not establish the -24- guilt of the accused beyond all reasonable doubt and the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt. The learned Sessions Judge has considered all these aspects in detail and analyzed the oral and documentary evidence in detail and at no stretch of imagination the judgment of the learned Sessions Judge can be said to be illegal or erroneous or capricious so as to call for any interference by this Court. As such, considering all these aspects, I am constrained to answer the point under consideration in the negative and proceed to pass the following:
ORDER The appeal is dismissed.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE yan