Karnataka High Court
Kadappa S/O Bhimappa Chalawadi vs The State Of Karnataka By Police ... on 24 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24th DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2667/2006
BETWEEN:
Kadappa S/o Bhimappa Chalawadi,
Age: About 65 Years, Occ: Head Drattsman,
Office of the Joint Director of Town Planning
Dharwad. .... APPELLANT.
(By Sri A.G.Mulawadmath, Advocate)
AND:
The State of Karnataka
By Police Inspector,
Police Wing, Karnataka Lokayukta
Dharwad. ...RESPONDENT
(By Sri M.B.Gundawade, Advocate)
This appeal is filed under Section 374 of the Code of
Criminal Procedure, 1973 by the advocate for the appellant
against the judgment dt.28.11.06 passed by the Prl.SJ., &
Spl.Judge, Dharwadi n SPEL (SVC) C.C.No. 12/98 and
convicting the appellant/accused for the offence p/u/s.7 &
13(1)(d) r/w. Sec.13(2) of the Prevention of Corruption
Act,1988. And sentencing him to undergo R.I. for 2 years & to
pay a fine of Rs.5,000/- I.D., to undergo S.I. for 3 months for
the offence p/u/s.7 of Prevention of Corruption Act,1988. And
2
further sentencing him to undergo R.I for 3 years & to pay a
fine of Rs.10,000/- I.D., to undergo S.I. for 6 months for the
offence p/u/s.13(1)(d) p/u/s.13(2) of the Prevention of
Corruption Act,1988. Both the substantive sentences shall run
concurrently.
This appeal having been heard and reserved and coming
on for 'Pronouncement of Judgement' this day, the court
delivered the following:
JUDGMENT
This appeal is filed by the accused against the judgment of conviction for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity).
2. The facts are as follows:
The complainant one Thimmappa Mushappa Waddar was a permanent resident of Kilubanur village, Ramadurg Taluk, Belgaum District. He was the owner of agricultural land bearing Survey No.84/2 of Kilubanur measuring about 1 acre 11 guntas. On 22.5.1997, he had made an application to the Assistant Commissioner, Bailhongal for conversion of 3 land use, to use his land for non-agricutlural purposes. His application was forwarded to the Assistant Director of Town Planning, Belgaum, who had, in turn, conducted a spot inspection and had forwarded the file to the Joint Director of Town Planning, Dharwad. When the file was with the office of the Joint Director, the complainant had approached the present appellant, who was holding the post of Head Draftsman and inquired with him about the progress of his file, at which time, the appellant is said to have demanded a bribe or illegal gratification of Rs.10,000/-. When the complainant expressed his inability to pay that amount of money, the accused had then demanded Rs.8,000/-. The complainant finally agreed to pay an advance of Rs.3,000/-and to pay the balance later. The accused is then said to have inspected his land and when there was no further progress, the complainant had approached him again, at which time, the accused- appellant is said to have demanded the remaining amount of Rs.5,000/- as illegal gratification.4
Since he was not willing to pay the bribe, he had lodged a complaint with the Inspector of Police, Lokayuktha, who in turn, registered a case in Crime No.15/1997 and forwarded the complaint to the jurisdictional court and obtained the assistance of two officials from the Minor Irrigation Department and the Hubli-Dharwad Municipal Corporation, respectively, to act as witnesses in trap proceedings. Accordingly, those witnesses, on their reporting, had been introduced to the complainant and the manner in which a trap could be effected was explained to them. The currency notes that were to be handed over to the appellant as bribe were then treated with phenolphthalein powder and it was demonstrated to the witnesses that if once the notes are handled and if the hands are washed in Sodium Carbonate solution, the solution would turn pink in colour.
After such demonstration, the entrustment mahazar was drawn up and the party including the complainant, the witnesses and other officials of the Lokayukta had proceeded to the office of the accused on foot, since it was very close to 5 the office of the Lokayukta. The complainant and one witness were thereafter further instructed as to the manner in which the amount would be paid and also instructed the complainant as regards the pre-arranged signal, after payment of the bribe amount, which would be the cue for the officials to apprehend the accused. Accordingly, the complainant had gone into the office and came out with the accused and proceeded to a canteen nearby and the trap party had followed them and waited outside the canteen. After having refreshments, the complainant and the accused had come out and went towards the office of the accused. On the way, they stopped and the complainant had given a pre-arranged signal, at which point, the investigating officer, the other panch witnesses and other Lokayukta staff rushed towards them and the complainant had thereafter pointed towards the accused and indicated that he had demanded and accepted the bribe of Rs.5,000/- and that he had received the money counted with his right hand and it was kept in his right hand side pant pocket.6
The Lokayukta Inspector introduced himself and took the accused to his office to conduct further proceedings. The hands of the accused were washed with Sodium Carbonate solution, and it turned pink in colour, which was in turn sealed and marked. Thereafter, the tainted currency notes were demanded from the accused, who in turn, handed over the same and the currency notes were verified and compared with the numbers that were previously noted down and were found to tally. Further evidence was gathered, in the pocket portion of the pant of the accused also having been washed with Sodium Carbonate solution, to establish that the money had been kept in that pocket which was, in turn, sealed and marked. The accused was thereupon asked to produce the file pertaining to the complainant which was also copied and marked and the Attendance Register of the office of the accused was also obtained to establish that he had been present in the office on the said day. The accused was asked if he wanted to make any statement and his statement was recorded. On the basis of other material and the statements that were duly recorded, a final 7 report was prepared after the completion of the investigation and the file was forwarded for obtaining sanction from the competent authority to prosecute the accused. Thereafter, a charge-sheet was prepared and submitted to the court.
On summons, the accused had appeared through counsel. He pleaded not guilty and after recording his plea, the matter went to trial. The prosecution examined six witnesses and marked 51 documents as Exhibits P.1 to P.51 apart from Material Objects - Mos. 1 to 18. Thereafter, the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.P.C.', for brevity) was also recorded.
It was his defence that one Yallappa Hanumantappa Munavalli, who was an acquaintance, had taken a hand loan of Rs.2,000/- and he had failed to repay the amount, on account of which there was ill will between the accused and Munavalli. On the date of the alleged incident, Munavalli, the complainant along with one Doddamani had met him at his office and they had all proceeded for refreshments in a nearby canteen and 8 while coming back to the office, Munavalli had thrust the money at the accused and since he was in a hurry to attend to his work, he had received the money, without counting the same and kept it in his pocket. It is at that point of time that the accused was taken into custody and it was alleged that he had demanded and received bribe.
The court below, on the basis of the above, framed the following points for its consideration :-
"1. Whether the Sanction Order as per Dex.P.28 is legal and valid?
2. Whether the prosecution proves beyond reasonable doubt that the accused being a public servant working as Head Draftsman in the office of the Joint Director of Town Planning, Dharwad, on 24.7.1997 At about 3.00p.m. demanded and accepted Rs.5,000/- from the complainant Thimmanna Mushappa Waddar as bribe, for doing an official favour viz., in the matter of getting no objection from the Joint Director of Town Planning for conversion of the land of the complainant to 9 non-agricultural land, and thereby committed the offences punishable under Section 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988?"
The court below has answered points 1 and 2 in the affirmative and after taking note of the fact that the accused was no longer in service as on the date of the judgment, as he had attained the age of superannuation, proceeded to sentence him to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- for an offence punishable under Section 7 of the PC Act, and to undergo three years rigorous imprisonment and to pay a fine of Rs.10,000/- for offences under Section 13(1)(d) and read with Section 13(2) of the PC Act. Both the sentences were to run concurrently.
It is that which is under challenge in the present appeal.
3. The learned Counsel for the appellant would submit that PW.1, the complainant has completely retracted the allegations in the complaint and has endorsed the circumstance that at the time of the trap, there were two others along with 10 him namely, Yellappa Hanumanthappa Munavalli and Doddamani, who were also owning lands and who were also seeking conversion of their lands for non-agricultural purposes and that Munavalli was the one who had instigated him to complain against the accused and to see that a trap was set against him and further that it was Munavalli, who had paid an amount of Rs.5,000/- to the accused. PWs - 2 and 4 who were the shadow witnesses have also resiled from their statements, and were treated as hostile witnesses and were cross- examined. It is evident therefore, from the material on record that there is no indication of the demand and acceptance of bribe by the appellant, which is an essential ingredient, to establish the commission of offences alleged.
The learned Counsel would submit that the court below after taking note of the evidence of PWs 1,2 and 4, which did not support the case of the prosecution, however, has proceeded to hold that when viewed with the evidence of the officials of the Lokayukta, the inconsistency in the statements of the said witnesses, to the effect that though the accused in his statement 11 at Exhibit P.114, had indicated that the complainant had handed over the amount stating that Munavalli had given him the amount, while making his statement during his cross- examination under Section 313 Cr.P.C, he has consistently stated that it was Munavalli who had handed over the currency notes to him. And the court has proceeded further and has taken exception to the further circumstance that it was the case of the accused that he had lent Rs.2,000/- to Munavalli and it was inexplicable that he had received Rs.5,000/- in turn, which was recovered from his pocket. Therefore, the court below has opined that the appellant had apparently won over the complainant and other witnesses and there was enough material on hand, especially, the admission by the appellant himself that he had received the money, which was found treated with Phenolphthalein powder and therefore, raised a presumption that he had, in fact, demanded and accepted an illegal gratification, which was sufficient to prove beyond all reasonable doubt that the accused - appellant had committed an offence, is a reasoning, which according to the learned counsel 12 for the appellant, is opposed to the established principles of law. The learned Counsel would place reliance on the following decisions:-
1. Subash Parbat Sonvane vs. State of Gujarat, 2002(5)SCC 86,
2. C.M.Girish Babu vs. CBI, (2009)3 SCC 779,
3. Union of India vs. Purnandu Biswas, 2005(12) SCC 576
4. On the other hand, the learned counsel for the respondent, while seeking to justify the judgment of the trial court, places reliance on the following decisions:
1. M.Narsinga Rao vs. State of A.P., (2001)1 SCC 691,
2. Krishna Ram vs. State of Rajasthan, (2010)1 SCC (Crl)147.
5. In the light of the above, it is evident that there is no direct evidence of the demand and acceptance pursuant to such a demand of any gratification. What is established and is not in dispute is that the currency notes, which were treated with phenolphthalein powder and which were utilised for the purpose of trapping the accused red-handed, while demanding 13 and receiving such illegal gratification, were admitted to have been received by the appellant, but with a rider that he had received it not from the complainant, but from one Munavalli, to whom he had lent money earlier and was receiving the money under the impression that such amount was being returned to him. This has been endorsed by the complainant and by Munavalli himself or rather the sequence of the said currency notes having been handed over by Munavalli and having been received by the appellant is established. The question then that would require to be addressed by this court is, whether the trial court was justified in drawing a presumption that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act.
The case of Narsing Rao, supra, relied upon by the learned counsel for the respondent, can be usefully referred in addressing this question. The facts of that case were that the appellant therein was a manager of a Milk Chilling Centre of a Co-operative Federation. It was alleged that he had received bribe from the milk transporting contractor. He was caught 14 red-handed in a trap arranged by the officials of the Anti Corruption Bureau. He was charge-sheeted for offences under Sections 7 and 13(2) read with Section 13(1) of the PC Act. After a trial, he was convicted and sentenced to undergo rigorous imprisonment for two years and fine under each of the above accounts. In an appeal to the High Court, the conviction was confirmed, but the sentence of imprisonment was reduced. The appellant was in appeal before the apex court. The apex Court found that the complainant and the panch witness made a volte-face in the trial court and denied having paid any bribe to the appellant and also denied that he had demanded the bribe. They were declared as hostile witnesses by the Public Prosecutor and they were cross- examined. The appellant was then called upon to answer the questions put to him under Section 313 of the Cr.PC. he claimed that one Dr.Rao, who bore a grudge against him had orchestrated a false case by implicating PWs.1 and 2 and that the currency notes were forcibly thrust into his pocket. He examined two witnesses on the defence side. The Trial court 15 and the High Court had debelieved the evidence in toto. It was urged before the apex court, on behalf of the appellant, firstly that the presumption under Section 20 of the PC Act, could be drawn only when the prosecution succeeded in establishing the direct evidence that the delinquent public servant accepted or obtained the gratification. That premise cannot depend on an inference for affording the foundation for the legal presumption envisaged in Section 20 of the Act. Secondly, it was contended that it was not enough that some currency notes were handed over to the public servant, to make it acceptance of gratification. The prosecution had further to prove that what was paid amounted to gratification.
In answering the above, the apex Court framed for itself the following question:
"Can a legal presumption be based on a factual presumption?. The latter is discretionary whereas the former is compulsory."
The apex court answered the contentions while pointing out that the expressions ' may presume' and 'shall presume' are 16 defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under the latter as 'legal presumptions' or 'compulsory presumptions'. When the expression 'shall be presumed' is employed in Section 20(1) of the Act, it would have the same import of compulsion.
It was held that a legal presumption is to be understood as in terrorem, that is, in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only contention for drawing such a legal presumption under Section 20 is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. The only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. The direct evidence 17 is one of the modes, through which, a fact can be proved, but that is not the only mode envisaged under the Evidence Act. The word 'proof' need be understood in the sense in which it is defined in the Evidence Act, because, proof depends upon the admissibility of evidence. A fact is said to be proved when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production of such materials, on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The court has cited with approval the observation in Hawkins vs. Powells Tillery Steam Coal Co.Ltd. , (1911_1 KB 988, which reads thus:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion." 18 It is held by the apex court that in reaching the conclusion, the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process, the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. The presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts, the court can draw an inference and that would remain until such inference is either 19 disproved or dispelled. For the purpose of reaching one conclusion, the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, prudence would demand that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. The apex Court has cited the observation of the apex Court in Suresh Budharmal Kalani vs. State of Maharashtra, (1998)7 SCC 337, to the following effect:
"A presumption can be drawn only from facts -
and not from other presumptions - by a process of probable and logical reasoning."
The court has then referred to illustration (a) to Section 114 of the Evidence Act namely, that a court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession and has pressed the same into service in a context and has held that 20 when the prosecution had brought reliable material to indicate that the appellant's pocket contained phenolphthalein smeared currency notes when he was searched by the Anti-Corruption Bureau, that by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because, there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein, but coupled with other circumstances, which had been proved and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that the appellant had willingly received the currency notes. It is in this manner that the apex court had concluded that both the trial court and the High Court were justified in their findings as those findings were supported on sound and formidable reasoning.
Krishna Ram vs. State of Rajasthan, supra, on which reliance is placed by the counsel for the respondent, was a case where the evidence of the complainant or the investigating 21 officers remained unimpeached. The defence sought to be set up by the appellant - accused was negated.
However, the decision relied upon by the learned Counsel for the appellant in the case of Banshi Lal Yadav, supra, which was a case decided under the Prevention of Corruption Act, 1947 and Section 4 of the said Act, in the context of the contentions raised by the appellant that certain tainted currency notes which was recovered from him were thrust into his pocket, whether presumption under Section 4 could be invoked, the apex court has held that before a presumption could be raised, the burden is on the prosecution to prove that the accused has accepted or obtained or agreed to accept or attempted to obtain for himself any gratification other than legal remuneration . In his statement under Section 313 of the Cr.PC, the accused having stated that the currency notes were thrust into his pocket and that statement alone without anything more was not sufficient to satisfy the necessary ingredients of Section 4(1) that he had accepted or obtained 22 gratification other than legal remuneration so as to be able to raise the presumption.
In Subash Parbat Sonvane, supra, the Supreme Court had held that mere acceptance of money without there being any other evidence, would not be sufficient for convicting the accused under Section 13(1)(d)(i) and pointed out that in Sections 7 and 13(1)(a) and (b) of the PC Act, the Legislature has specifically used the words 'accepts' or 'obtains'. As against this, there is departure in the language used in clause (1)(d) of Section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. Therefore, in order to convict a person under Section 13(1)(d) ,there must be evidence on record that the accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public or he obtained for any person any valuable thing or pecuniary advantage without any public interest.
The Supreme Court drew attention to the observations of the apex Court in the case of Ram Krishan vs. The State of 23 Delhi, (1956) SCR 183, wherein the apex court had observed that the word 'obtains' connotes also an element of effort on the part of the receiver.
In this regard, it was held that the statutory presumption under Section 20 of the Act, though available for an offence punishable under Section 7 or Section 11 or clause (a) and (b) of sub-section (1) of Section 13, it is not so available for clause
(d) of Sub-section (1) of Section 13.
In the case of V.Venkata Subbarao, supra, it was reiterated that in the absence of proof of a demand, the question of raising a presumption would not arise. Section 20 provides for raising of presumption only if a demand is proved and further, the burden on the accused does not have to meet the same standard of proof as is required to be met by the prosecution. It was reiterated while noticing the observation in the case of Union of India vs. Purnandu Biswas, (2005)12 SCC 576), that Section 20 of the Act is not attracted as the respondent had been charged for commission of offences under Section 13(1)(d) read with Section 13(2) of the PC Act. 24
In the case of Girish Babu, supra, the accused has raised a similar defence as in the present case on hand and it was also found therein that mere recovery of money by itself did not prove the charge of the prosecution against the accused.
In the light of the above case-law if the facts of the present case are addressed, it is evident that the allegations against the accused were of commission of offences punishable under Sections 7 and 13(1)(d) and 13(2) of the PC Act. In the case of Narsing Rao, supra, it was held that the presumption under Section 20 could be drawn in respect of offences punishable under Section 7 or Section 11 or clause (a) or clause (b) of Sub-Section (1) of Section 13. It could not be in respect of an offence punishable under Section 13(1)(d) as has been noticed in more than one judgment of the apex court.
In that view of the matter, the burden was on the prosecution to have established that there was a demand of illegal gratification by the appellant, pursuant to which, he had accepted the same. Admittedly, there is no evidence 25 forthcoming, either of the complainant or the panch witness of any such demand having been made. Secondly, the tainted money was given into the hands of the appellant not by the complainant, but by one Munavalli. It was the defence of the accused while admitting the receipt of the money that there was a loan transaction between Munavalli and himself and he had received the money from Munavalli in the belief that the said money was being returned. Though the court below has observed that the alleged loan transaction was only in respect of Rs.2,000/- whereas what was recovered from the accused - appellant was Rs.5,000/-, is explained by the accused to the effect that since he was in a hurry to get back to work, he had simply received the money and had thrust into his pocket without counting the same. This explanation is a plausible explanation and in consonance with human conduct, or rather, it is not uncommon or unusual. Therefore, even if a larger amount had been recovered, that by itself, has not established the case of the prosecution that there was demand and acceptance of illegal gratification. In that view of the matter, 26 in the facts and circumstances of the case, the court below having drawn presumptions on the basis of the circumstances of the case, indeed has resulted in a miscarriage of justice. In the opinion of this court, the prosecution had failed to prove its case beyond all reasonable doubt.
Accordingly, the appeal is allowed. The accused is acquitted of offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
Sd/-
JUDGE nv