Karnataka High Court
Rajkumar Waldoddi S/O Pandurang vs The State Through on 13 September, 2019
1 CRL.A.NO.3691/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3691/2011
BETWEEN:
RAJKUMAR WALDODDI S/O PANDURANG
AGE: MAJOR OCC: SECOND DIVISION
SURVEYOR IN ADLR TAHSIL OFFICE
BIDAR. ... APPELLANT
(BY SRI AVINASH A. UPLAONKAR, ADVOCATE)
AND:
THE STATE THROUGH
LOKAYUKTA POLICE STATION
BIDAR. ... RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C. PRAYING TO CALL FOR RECORDS AND
EXAMINE THE RECORDS IN SPECIAL CASE (P.C.ACT)
NO.1/2009 AND SET-ASIDE THE JUDGMENT PASSED BY
THE LEARNED SPECIAL JUDGE AND PRINCIPAL DISTRICT
AND SESSIONS JUDGE, BIDAR FOR CONVICTING THE
APPELLANT BY ITS JUDGMENT DATED 29TH OCTOBER
2011.
THIS APPEAL IS COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
2 CRL.A.NO.3691/2011
JUDGMENT
"Whether the order of conviction and sentence dated 29.10.2011 passed by Special Judge and Principal District and Sessions Judge Bidar in Special Case (P.C.Act) No.1/2009 against the appellant for the offences punishable under Sections 7, 13 (1) (d) read with Section 13 (2) Prevention of Corruption Act, 1988, is sustainable in law?" is the question involved in this case.
02. During January 2008 appellant was working as Second Division Surveyor in the Office of Assistant Director of Land Records, Bidar Town. At that time an application dated 14.01.2008 was filed in the office of accused seeking survey the land Sy.No.52 and for preparation of sketch map. 3 CRL.A.NO.3691/2011
03. In the application PW.1 Shah Abraham Quadri - complainant was shown as intending purchaser. PW.1 filed complaint as per Ex.P.1 before the Police Inspector Karnataka Lokayukt, Bidar alleging that when he requested the accused to survey the land and prepare the sketch and issue survey sketch, accused demanded bribe of Rs.3,000/- and received Rs.2,000/-. He further alleged that accused demanded him to pay balance of Rs.1,000/- and collect the sketch. On 22.01.2008 when complaint again visited the office, the accused allegedly insisted to collect the sketch, only on payment of Rs.1,000/-, therefore, he filed the complaint.
04. On the basis of such complaint respondent police registered F.I.R. as per Ex.P.17 in Crime No.2/2008 of their police station. PW.2 and PW.3 4 CRL.A.NO.3691/2011 were secured as mahazar witnesses and entrustment mahazar Ex.P.2 was drawn on 25-01- 2008. According to the prosecution on the same day trap was laid. PW.2 was the shadow witness. The accused allegedly demanded and received bait money M.O.1 one currency note of Rs.500/- and five currency notes of Rs.100/- denomination each. The bait money was allegedly recovered from the accused and his explanation as per Ex.P.3 was taken and trap mahazar is at Ex.P.7 was drawn in the presence of PW.s 1 to 3.
05. On filing the charge sheet, the Special Judge tried the accused in Special Case (Corr) No.1/2009 for the charges of demanding and receiving illegal gratification to show the official favour which are punishable under sections 7, 13(1)
(d) r/w section 13(2) Prevention of Corruption Act. 5 CRL.A.NO.3691/2011
06. On trial, by the impugned Judgment and order, the Trial Court convicted the accused for the offences punishable under sections 7, 13(1) (d) r/w sec.13(2) Prevention of Corruption Act and sentenced him to rigorous imprisonment of one year and fine of Rs.3,000/- for each of the offences punishable under sections 7 & 13(1) (d) r/w section 13(2) Prevention of Corruption Act on the following grounds:-
i) The demand and acceptance of illegal gratification is proved by the evidence of PW.s 1 & 2 and the explanation of the accused himself as per Ex.P.3.
ii) The defence of the accused that PW.1 paid the bait money as fees for issue of the survey sketch map is unacceptable.
6 CRL.A.NO.3691/2011
iii) The defence of the accused that he was not in a position to show official favour to PW.1 is unacceptable.
07. Sri Avinash Uplaonkar learned counsel for accused/appellant seeks to challenge the Judgment and order of the trial Court on the following grounds:
i) The demand of illegal gratification was not proved by cogent and consistent evidence.
ii) The evidence of PW.1 was not
corroborated by the evidence of
PW.2 the shadow witness.
iii) The trial Court should have
accepted the explanation of the
accused that the bait money M.O.1 was received as fees. The prosecution is required to prove the demand beyond all reasonable doubt.7 CRL.A.NO.3691/2011
iv) The complainant himself was a person of questionable character, therefore his evidence ought to have sought corroboration by the evidence of PW.2.
v) The evidence of PW.2, the shadow witness is full of embellishments and his evidence, if read with Ex.P.16 creates doubt about his presence at the scene of offence.
08. In support of his arguments, he relies upon the following Judgments:
i) C.M.Girish Babu V/s CBI Cochin, High Court of Kerala, (2009) 2 Supreme Court Cases (Cri) 1
ii) Suryabhan V/s State of Maharashtra, 1995 CRL.L.J 107
iii) V.Venkata Subbarao V/s State represented by Inspector of Police A.P. 8 CRL.A.NO.3691/2011
iv) Unreported Judgment in Azad S/o Chandasab Annigeri V/s State of Karnataka, CRL.A.2743/2011 D.D. 22-09-2012.
09. Per contra, Sri Subhash Mallapur, Special Public Prosecutor for the respondent seeks to justify the impugned Judgment and order of conviction and sentence on the following grounds:
i) The accused in his explanation admits the recovery of bait money.
There was no reason for the accused to receive bait money. If that was fee, he could have directed the complainant to pay that in the concerned section.
ii) His explanation that he received bait money as fees is unacceptable.
iii) The minor inconsistency in the evidence of PW.2 cannot be termed as admissions.
9 CRL.A.NO.3691/2011
iv) The accused failed to rebut the presumption available against him under section 20 Prevention of Corruption Act.
10. Sum and substance of the Judgments relied upon by the learned counsel for the appellant is that, Section 20 Prevention of Corruption Act, mandates for raising presumption of receipt of illegal gratification as motive or reward to show an official favour, if the acceptance or obtainment of the gratification is proved. However to draw presumption the initial burden or proving demand by the accused Government servant shall be proved. The perusal of the above Judgments further show that in respect of proof of demand the evidence of the complainant shall be corroborated by other evidence as the complainant is the interested person.
10 CRL.A.NO.3691/2011
11. The Hon'ble Supreme Court of India in State of U.P Vs. Zakaullah 1 has held that, the evidence of trap officer can be relied upon even without corroboration. It was further held that merely because the panch witnesses had acquaintance with the police officers conducting search they cannot be called as dependent or interested witnesses.
12. In the background of such legal position, this Court has to see whether the demand and acceptance was proved by the prosecution. Ex.P.3 is the explanation of the accused tendered soon after the trap. Though in his statement under section 313 Code of Criminal Procedure, accused denies having given such explanation, in the cross- 1 AIR 1998 Supreme Court 1474 11 CRL.A.NO.3691/2011 examination of PWs.1 & 2 he has not denied that, after trap he gave such explanation.
13. Accused has filed separate defence statement after his examination under section 313 Code of Criminal Procedure. In that defence statement also he has not disputed tendering of the explanation as per Ex.P.3. Therefore, the trial Court was right in accepting that Ex.P.3 is the explanation given by the accused. In Ex.P.3 the accused admits pendancy of the application of complainant for survey sketch and the complainant approaching him for the same.
14. In Ex.P.3, he states that fee payable for the said work was Rs.806/- and the complainant had paid only Rs.206/- on 14-01-2008 and Rs.600/- was still balance. He has further stated that, on 24-01-2008 PW.1 paid the bait money as 12 CRL.A.NO.3691/2011 balance fees and without counting he kept that in his pocket and that was recovered. The said explanation belies all his other defence namely, he was not in a position to show official favour or that the complainant was not the applicant, somebody else was applicant etc. In the application itself, it is said that the complainant was an intending purchaser.
15. In Ex.P.3 the accused has specifically stated that when the complainant approached him he told him that, if he pays Rs.806/- fees he will prepare sketch and issues that. That itself shows that the complainant's work was pending with the accused and accused was in a position to show the official favour to him.
16. As already held, the recovery of the bait money is proved. Then the question is whether the 13 CRL.A.NO.3691/2011 trial Court should have believed the allegation of demand of illegal gratification. PW.4 was the office superintendent in the office of Asst. Director of land records, Bidar. He states in his chief examination that, the survey will be effected only after the deposit of the prescribed fee. He also states by the time trap was laid, survey sketch was ready.
17. The evidence of PW.1 & 2 would also show that the accused handed over sketch to the complainant on receiving the bait money. PW.1 speaks to the demand of the accused. PW.2 the shadow witness in his chief examination supports the prosecution version regarding demand. In his cross-examination, at one stretch he says that the between the accused and the complainant before handing over the money to the accused conversation took place only regarding receiving 14 CRL.A.NO.3691/2011 sketch and signing on the same and no other conversation took place. But whether this statement amounts to stray statement or admission is a question. Therefore, this has to be appreciated with reference to the other surrounding circumstances in the case.
18. It is not the case of the accused that, he was working in the account's branch of the said office or he was authorized to receive the fees and issue the receipt. Neither in the cross-examination of PW.3 nor in the evidence of any other witnesses, the accused elicits that, he was in charge of accounts branch and he was authorized or competent to receive the fees. The accused in the cross-examination of PW.3 suggests that, any sketch to be issued shall be issued through PW.3 and he admits that. If that is case why the accused 15 CRL.A.NO.3691/2011 issues or delivers that document to the complainant was not explained by the accused. His defence that fee payable Rs.806/- was also not substantiated.
19. PW.2 in his chief examination stated that the accused asked PW.2 whether he has brought money and received that. Accused did not explain why he accepted the money when he was not authorized either to receive the fees or issue the sketch. In addition to that, money was received was excess by Rs.400/- according to the accused himself. Even for receiving that excess amount there was no explanation by the accused. Having regard to these circumstances, stray statement of PW.2 in his cross-examination that before accused receiving the money from PW.1 except about receiving the sketch map and signing no other 16 CRL.A.NO.3691/2011 conversation took place cannot be called as a clean admission.
20. Even the inconsistency in his evidence about he standing near the door of the chamber of the accused and his position shown in the sketch Ex.P.16 cannot be blown out of proportion. The evidence on record and the explanation of the accused in the case are in the nature of things speaking for themselves. Therefore, the accused was expected to create a reasonable doubt in the mind of the Court about his innocence in receiving the money which he failed to discharge.
21. If once accused failed to create such reasonable doubt, then the presumption under section 20 Corruption Act comes into picture and the Court has to draw the presumption about the motive of the accused in receiving the bait money. 17 CRL.A.NO.3691/2011 Though the trial Court did not discuss this aspect elaborately, was right in relying on Ex.P.3 the explanation of the accused and the other evidence on record in convicting and sentencing the accused. This Court does not find any error in appreciation of the evidence by the trial Court warranting interference of this Court.
Therefore, the Appeal is dismissed.
Sd/-
JUDGE KJJ/MWS