Karnataka High Court
G. Omprakash vs State By Karnataka Lokayukta on 21 December, 2020
Author: K.Somashekar
Bench: K.Somashekar
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 46 OF 2014
BETWEEN:
G. Omprakash
S/o R. Ganganna
Age about 38 years
Police Sub-Inspector
Vijayanagara Traffic Police Station
(Investigation) Bangalore
R/a. No.1, Police Officers Quarters
Rajajinagara
Bangalore - 560001.
...Appellant
(By Sri. Aravind K. Kamath. Sr. Counsel for
Sri. AnandMuttalli - Advocate)
AND:
State by Karnataka Lokayukta
Represented by Police Inspector
City Division
Karnataka Lokayukta
Bangalore - 560 001.
...Respondent
(By Sri. Venkatesh S. Arabatti, Spl.P.P for
Respondent - Lokayukta)
2
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C r/w Section 27 of Prevention of Corruption
Act, 1988 praying to set aside the judgment and order of
conviction and sentences including fine imposed by the
order dated 23.12.2013 passed by the Spl. Judge,
Bangalore Urban District, Bangalore City in Spl.
C.C.No.93/2008 - convicting the appellant/accused for
the offences punishable under Sections 7 and 13(1)(d)
r/w 13(2) of Prevention of Corruption Act, 1988.
This Criminal Appeal coming on for further
arguments this day, the Court delivered the following:
JUDGMENT
This is an appeal preferred by the appellant / accused challenging the judgment of conviction and order of sentence dated 23.12.2013 rendered by the Court of the Special Judge, Bangalore Urban District, Bangalore City in Spl. C.C.No.93/2008 - convicting the appellant/accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988. The appellant has filed this appeal seeking to set aside the said order dated 23.12.2013. By the said judgment, appellant has been sentenced to undergo RI for nine months and to pay a 3 fine of Rs.1,000/- and in default to pay fine, to undergo SI for one month for the offence punishable under Section 7 of the PC Act; and further, appellant has been sentenced to undergo RI for sixteen months and to pay a fine of Rs.1,200/- and in default to pay fine, to undergo SI for 45 days for the offence punishable under Section 13(1)(d) read with Section 13(2) of the PC Act.
2. Heard the learned Senior counsel Shri Arvind Kamath for the appellant and the learned Special Public Prosecutor Shri Venkatesh S. Arabatti for the respondent / Lokayuktha and perused the impugned judgment and other materials on record.
3. Factual matrix of this appeal is as under:
As on 15.10.2007, a complaint was filed by the complainant / Suresh before the Police Inspector, City Division, Karnataka Lokayuktha, stating that the complainant was running a Tours and Travels and was also by avocation a driver. As on 20.09.2007 near 4 Havanur Circle in Basaveswaranagara while he was driving a Tata Sumo vehicle bearing Regn.No.KA-
51/2723, his vehicle had met with an accident. Due to the accident of his vehicle, a complaint came to be registered in Cr.No.198/2007 in Vijayanagara Traffic P.S. for the offences punishable under Sections 279 and 337 of IPC and Section 134(a)(b) of the IMV Act.
4. It further transpires that on 12.10.2007, he had gone to Vijayanagara Traffic P.S. and had met the Sub- Inspector of Police / Om Prakash who is arraigned as accused in this appeal and made some enquiry with him and discussed in relation to his vehicle having met with an accident and subsequent registration of Cr.No.198/2007. The accused being the Sub-Inspector of Police Traffic had informed him that he would arrest the accused in that case, as he being the complainant in Cr.No.36/2007 and would proceed further to send him to court. However, the complainant had requested the Sub-Inspector of Police, Traffic, to release him on bail in 5 the station itself and further take some decision. However, the accused / appellant herein is said to have demanded bribe in a sum of Rs.7,000/- to the complainant to be released on bail. Even when complainant had told him that the amount was too heavy, the appellant / accused had forced him to pay the said amount as necessitated on 15.10.2007. But the complainant being not inclined to pay that heavy amount of Rs.7,000/- has in turn gone to the Lokayuktha Police Station in Bangalore City and filed a complaint before the Police Inspector of Lokayuktha, Bangalore City. Accordingly, the case in Cr.No.36/2007 for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act, 1988 came to be registered that the appellant / accused had demanded bribe in a sum of Rs.7,000/- from the complainant. But Cr.No.36/2007 was registered on 15.10.2007 at around 6.00 p.m. stating that the accused had demanded and accepted bribe in a sum of Rs.3,000/-.
6
5. Subsequent to filing of a complaint by the complainant, the I.O. has taken up the case for investigation and thoroughly investigated the case and laid the charge-sheet against the accused for the offences under the PC Act. Subsequent to laying the charge-sheet against the accused by the Police Inspector of Lokayuktha, Bangalore City, Bangalore, that the charges have been framed against the accused and then proceeded with the case for trial where the accused pleaded not guilty and claimed to be tried. Accordingly, plea of the accused was recorded and then proceeded with the case for trial in respect of the accused.
6. The prosecution in all examined witnesses PW-1 to PW-5 and got marked several documents at Exhibits P1 to P27 and so also got marked material objects MO-1 to MO-12. Subsequent to closure of the evidence on the part of the prosecution, the accused was examined as required under Section 313 Cr.P.C. for recording the incriminating statements appearing against him, 7 whereby the accused has denied the truth of the evidence adduced so far. But he did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. But the documents at Exhibits D1 and D5 have been got marked on the part of the defence.
Subsequently, after hearing the arguments advanced by the learned Spl. PP for the Lokayuktha and so also the defence counsel for the accused and perusing the documents which were got marked on the part of the prosecution relating to the evidence of PW-1 to PW-5, the Trial Court by its order dated 23.12.2013, convicted the appellant / accused for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act and sentenced him as aforesaid. It is this judgment which is under challenge in this appeal by the appellant / accused, urging various grounds.
8
7. Learned Senior Counsel Shri Arvind K. Kamath appearing for the counsel for the appellant / accused contends that the learned Trial Judge has gravely erred in appreciating the evidence on record, the documents produced and material facts of the case and the interpretation and conclusion drawn from them being erroneous, is liable to be set aside.
He specifically points out to the evidence of PW-1 / B.G. Jyothiprakash Mirji, who is the Sanctioning Authority of the accused. PW-1 has specifically admitted in his cross-examination that in view of the fact that the complainant wanted to be released on bail in the police station itself through the appellant / accused instead of being produced before the court, the appellant had expected official favour of bribe from the complainant. However, it is contended that the Trial Court had failed to notice Exhibit P25 which is a document collected by the I.O. during his trap from the accused police station wherein the PSR and bail bond 9 shows that the complainant was released on bail by executing a bail bond along with surety as on 2.10.2007 at 8.25 a.m. itself. The said fact is ascertained from the Station House diary dated 2.10.2007 maintained as Document Nos.7 and 10 in respect of Cr.No.198/2007.
8. When the complainant was already released on bail as on 02.10.2007 itself, the question of the appellant / accused having demanded bribe from the complainant as on 12.10.2007 to release the complainant on bail in respect of the very same crime, would not arise. The said fact has been failed to be noticed by the Trial Court while convicting the accused.
It revealed from the further cross-examination of PW-1 that the Sanctioning Authority had admitted that he had not read the case diary pertaining to Cr.No.198/2007. PW-1 had further admitted that he had not seen the arrest register to ascertain whether the 10 complainant was released on bail as on 02.10.2007 at 8.25 a.m. or not.
9. The learned Senior counsel contends that when the Sanctioning Authority / PW-1 had not even read the case diary pertaining to Cr.No.198/2007 and when he had not even seen the arrest register to ascertain whether the complainant was released on bail as on 02.10.2007 at 8.25 a.m., the Sanctioning Authority has erred in granting sanction for prosecution since the said sanction has been granted by him mechanically without ascertaining the facts and without proper application of mind. Thus, the learned Senior counsel contends that the learned Trial Judge has failed to appreciate the fact that the sanction accorded by the Sanctioning Authority itself is bad in law and is an invalid sanction.
It is alleged in the complaint filed by the complainant as per Exhibit P2 that on 12.10.2007, the accused had demanded a sum of Rs.7,000/- from the 11 complainant to release him on bail in the station itself. But the Trial Court has failed to notice that the complainant was released on bail in the station itself as per the procedure on 2.10.2007 at 8.25 a.m. The Trial Court ought to have noticed that the PSR and Bail bond, namely Documents 7 and 10 submitted by the appellant / accused clearly shows that the complainant was released on bail in the station itself by the accused on 2.10.2007. Therefore, the official work of granting bail to the complainant has ceased to exist as on 02.10.2007 at 8.25 a.m. itself. When that being the case, the learned Trial Judge has failed to appreciate that the complainant has in fact filed the complaint with malafide intention to wreck vengeance against him suppressing the fact that he was already released on bail as on 02.10.2007 itself. Further, the complaint against the accused has been registered 13 days after the complainant was released on bail, which itself 12 reveals that the complaint lacks bona fides and has been filed with an ulterior motive.
10. Further, the complainant / Suresh examined as PW-2 has stated in his cross-examination that the seized vehicle bearing No.KA-51/2723 was not released on 5.10.2007, which is contrary to the IMV inspection report dated 5.10.2007 conducted by the concerned RTO, which clearly shows that the said seized vehicle was taken into possession by the complainant as on 5.10.2007 itself. The release of the said seized vehicle to the complainant is also recorded in the case diary. One Prakash was the person who stood as a surety. The said Tata Sumo vehicle which met with an accident, was inspected by the Motor Vehicles Inspector and was then released in favour of the complainant by the Vijayanagar P.S. But he has denied the suggestion that he had gone to the police station after 2.10.2007 and on 5.10.2007, but he has specifically stated that he had gone to Vijayanagar P.S. twice prior to 2.10.2007. 13 Whereas in his evidence during cross-examination, he has specifically denied the suggestion that he had any such transaction or affairs with the accused. Hence, the Trial Court has failed to appreciate the evidence on record that the complainant was present at the time of the IMV inspection conducted by the RTO officials and further, that he has falsely deposed to the effect that his vehicle was not released on 5.10.2007.
But on 15.10.2007 he had gone to the Lokayuktha P.S., Bangalore City at around 1.00 p.m. and filed a complaint against the accused / Omprakash, the Sub- Inspector of Police, Vijayanagar Traffic P.S. The allegation is that complainant is said to have paid a sum of Rs.3,000/- (6 notes of Rs.500/- denomination each) which is marked as MO-1 to the accused, at the instance of the accused. But the complainant has denied the suggestion that MO-1 currency notes of Rs.3,000/- was thrusted into the 14 jerkin pocket of the accused. He has specifically denied that the accused has not demanded any sort of money from him at any point of time as stated in his complaint at Exhibit P2.
11. Further, PW-2 / complainant in his evidence has stated that the vehicle involved in the accident was driven by his driver at the time of the accident, whereas in his complaint at Exhibit P2, he has stated that he himself was driving the said vehicle at the time of the accident. Due to the fact that the complainant himself had driven the vehicle at the time of the accident, he had pleaded guilty before the court on 27.12.2012 and had paid a fine amount of Rs.2,750/- before the Court of the MMTC-II, Bangalore. In spite of the said fact, the learned Trial Court has failed to appreciate this contradiction in his complaint and evidence of having given two different versions and in spite of that, has placed reliance on his testimony and convicted the accused, which is contrary to law.
15
11. Further, PW-3 / B.R. Venkatesh who is a shadow witness who accompanied the complainant / PW-2 to the office of the accused was working as a PSI in Vijayanagar Traffic P.S. PW-3 in his evidence has stated that the Indemnity Bond required for release of the seized vehicle was purchased by complainant and typed in a place near to Vijayanagar Police Station. However, it is reflected from the records that the said Indemnity Bond was purchased at Cauvery Bhavan Branch of State Bank of Mysore as on 15.10.2007 at 3.00 p.m. Hence, it is contended that the learned Trial Court has failed to appreciate the fact that PW-2 and PW-3 had falsely deposed to the effect that the said Indemnity Bond was purchased in a shop near Vijayanagar Traffic Police Station. Further, the Trial Court also failed to notice that the contradictions in the evidence of PW-3 was fatal to the case of the prosecution.
16
12. Further, PW-4 / Shivalingaiah who was the Mahazar Witness had stated that at the time of trap, the accused had produced the currency notes and later on his hands when washed with Sodium Carbonate solution, had turned light pink colour, which indicated that the accused was in possession of tainted currency notes. But however, PW-4 had further admitted that the I.O. had given him two days attendance certificate for 15.10.2007 and 16.10.2007, which is also supported by the evidence of PW-5. PW-4 has also admitted that he had signed some documents pertaining to the case as on 16.10.2007. When this was the position, the learned Trial Court has failed to notice the fact that the entire charge-sheet materials shows that all the documents were executed on 15.10.2007 only, which is contrary to the evidence of PW-4 and shows that the same has been concocted to establish a false case against the accused. Hence, it is contended that the evidence of PW-4 contradicts the evidence of PW-3 / 17 Venkatesh and further contradicts the evidence of PW-2 / Suresha on the part of the prosecution. This contradictory evidence ought to have been appreciated by the Trial Court and the benefit of doubt ought to have been accrued in favour of the accused.
13. PW-5 / M.G. Subba Rao is the Police Inspector and also the Investigating Officer who has laid the charge-sheet against the accused. He received the complaint as per Exhibit P2 and based upon the complaint, he recorded an FIR by registering the case in Cr.No.36/2007 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act, 1988. Further, the Trial Court has also failed to appreciate the fact that PW-5 / M.G. Subba Rao had stated before the Inquiry Officer of the Departmental Inquiry that the allegations made in the complaint by the complainant against the accused are not proved during the investigation, which is evident from Exhibit D2. The Trial Court failed to appreciate that the charge 18 against the accused regarding the alleged demand of bribe was for release of the complainant from the station and not for release of the seized vehicle. The case of the prosecution being contradictory, the Trial Court ought to have acquitted the accused.
Further, PW-5 while preparing the pre-trap panchanama namely Exhibit P3, has not obtained the signature of the complainant on the list of the currency notes of Rs.7,000/- (Rs.500 x 14) prepared by the I.O. which leads to doubt regarding the genuineness of the case of the prosecution. Further, he has also failed to satisfactorily explain the circumstances with regard to the remaining Rs.4,000/-. The Trial Court has failed to appreciate that PW-5 in his evidence, has admitted that out of the amount of Rs.7,000/- listed in Exhibit P3, only Rs.3,000/- was recovered from the accused and the balance of Rs.4,000/- from the complainant, without even obtaining an acknowledgement. Hence, it is contended that the pre-trap mahazar is a fabrication 19 and does not prove its authenticity regarding the existence of Rs.7,000/-.
14. PW-1 had accorded sanction to prosecute the case against the accused as per Exhibit P1. This sanction accorded by the prosecution has been issued based upon the materials forwarded by the concerned authority and having gone through the materials consisting the FIR, statements and subjective satisfaction. PW-1 who has been examined on the part of the prosecution, has also been subjected to cross- examination. But it is only the administrative correspondence as akin to Section 19 of the Prevention of Corruption Act for having accorded sanction of the prosecution case.
In this appeal, the prosecution has placed much credence on the evidence of PW-5 M.G. Subba Rao who is the I.O. in part and his evidence has been in par with the evidence of PW-3 B.R. Venkatesh who is a shadow 20 witness who had accompanied PW-2 Suresh to Vijayanagar P.S. PW-4 Shivalingaiah is a witness secured by the I.O. of Lokayuktha to conduct pretrap mahazar in their present. The entire case of the prosecution revolves round the evidence of B.R. Venkatesh who is a shadow witness who had accompanied the complainant and who was present when the alleged cash of Rs.3,000/- was seized from the possession of the accused. PW-2 complainant Suresh had extended signal by wiping his face by means of a handkerchief. Subsequent to receipt of signal extended by him, the Police Inspector of Lokayuktha / PW-5 had swung into operation and had ascertained and confirmed that the accused had received the bait amount of Rs.3,000/- in the denomination of Rs.500/- x 6 notes, which is marked as MO-1.
MO-6 hand wash of the complainant with Sodium Carbonate solution, which means to say, the complainant himself has come into contact with the 21 tainted currency notes of Rs.3,000/- and his hands when washed with the said solution, had turned pink in colour. But in the impugned judgment it is specifically stated the factors of the presence of phenolphthalein and Sodium carbonate is detected in Article No.2, that is cover, Article No.4 / left hand and Article No.5 / right hand fingers of the accused. Article No.7 washing of the back portion of the jerkin alleged to have been worn by the accused, MO-9 cover containing jerkin. The presence of only phenolphthalein factor is detected in Article No.6, that is hand wash of the complainant. That detection of phenolphthalein factor and so also Sodium carbonate factor which is only in Article Nos.2, 4, 5, 7 and 9. But in Article No.6, phenolphthalein factor only has been detected and the presence of Sodium carbonate is not detected. The same has been mentioned in a tabular column in the impugned judgment. It is based upon the chemical analysis report at Exhibit P26.
22
15. Therefore, it is relevant to refer to Sections 7, 13(1)(d) and 13(2) of the P.C. Act, 1988, which reads thus:
"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment 23 which shall be not less than six months but which may extend to five years and shall also be liable to fine."
13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) "xxx
(b) xxx
(c) xxx
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;"24
"13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
The essential ingredients of these provisions is very much required to appreciate the evidence adduced by the prosecution whereby the accused being necessarily a Government servant and should have demanded and accepted the bribe amount, as narrated in the complaint filed by the complainant. In the absence of cogent and consistent evidence to establish beyond all reasonable doubt that the appellant had made a demand for the bribe amount and thereafter the same was handed over by the complainant is not established and when there are admittedly inconsistencies in the evidence of several witnesses, it would be a case for acquittal of the accused in respect of the alleged offences.
25
16. Learned Senior counsel for the appellant has produced and also referred to certain documents which are marked as Exhibit D1 / copy of deposition of Shivalingaiah. Shivalingaiah has been examined as PW-4. Exhibit D2 is the true copy of the deposition in D.E.2/2009. Exhibit D3 is the Prisoners' Search Register. Exhibit D4 is the bail bond. Exhibit D5 is the copy of the attendance certificate.
These documents have been produced on behalf of the accused, but the accused did not adduce any defence evidence. These documents have been produced for the purpose of perusal by appreciating the evidence on the part of the prosecution. It is only after closure of the prosecution evidence as required under Section 313 Cr.P.C. for incriminating statements appearing against him.
17. It is relevant to refer to section 19(3) of the PC Act, 1988, which reads thus:
26
"(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in 27 any inquiry, trial, appeal or other proceedings."
Similarly, Section 20 of the PC Act reads thus:
"20. Presumption where public servant accepts gratification other than legal remuneration.--
(1) Where, in any trial of an offence 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 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 section 7 or, as the case may 28 be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause
(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its 29 opinion, so trivial that no interference of corruption may fairly be drawn."
These two provisions of the PC Act are relatable to according sanction for prosecution against the accused being a Government servant. In this case, PW-1 has been examined as he being an Addl. Commissioner of Police, Bangalore City and he is the one who accorded the sanction as per Exhibit P1. Before according sanction for prosecution, he is required to have gone through the contents of the FIR, Entrust mahazar, statement of witnesses, trap mahazar, FSL report and other connected documents and then was required to grant sanction as per Exhibit P1 for prosecution of the case. It is relevant to refer that he is required to have gone through the case dairy in Cr.No.198/2007 of Vijayanagar P.S. during the perusal of the papers and the records before according sanction for prosecution. It is relevant to state that PW-2 / Suresh is arraigned as 30 an accused in Cr.No.198/2007 for offences punishable under Sections 279, 337 of IPC and Section 134(a)(b) of the IMV Act. The offences lugged against the accused in the instant case are bailable in nature. Therefore, he ought to have perused the entire records relating to according sanction for prosecution against the accused. But however, PW-1 has admitted in his cross- examination that he had not read the case diary pertaining to Cr.No.198/2007 and that he had not seen the arrest register to ascertain whether the complainant was released on bail as on 2.10.2007 at 8.25 a.m. or not. Thus, it is contended that sanction accorded by PW-1 for prosecution itself, is opposed to law.
The entire case revolves around the evidence of PW-3, PW-4 and the evidence of PW-2 / Suresh. But however, PW-2 / complainant was the accused in Cr.No.198/2007 wherein he had pleaded guilty for the offences under Sections 279 and 337 IPC and had paid 31 a fine of Rs.2,750/- before the Magistrate Court at Bangalore.
18. In this regard, it is relevant to refer to Section 155 of the Indian Evidence Act, 1972, which reads thus:
"155. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: --
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has 1 accepted the offer of bride, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
But in the instant case, PW-2 / Suresh is the accused in Cr.No.198/2007 for offences under Sections 32 279 and 337 of the IPC whereby he has pleaded guilty and paid the fine amount of Rs.2,750/- and after a lapse of several days, the very accused namely Suresh in Cr.No.198/2007 has filed a complaint before the Police Inspector of Lokayuktha and based upon his complaint a case in Cr.No.36/2007 was filed for offences under sections 7, 13(1)(d) read with Section 13(2) of the PC Act has been filed against the appellant / accused. Hence, the credentiality of the complaint in Cr.No.36/2007 filed by the complainant is itself in serious doubt.
19. Further, though it has been stated by the I.O. that the vehicle in question was released by obtaining a bond paper from the complainant, there is no material as such in the complaint or the charge-sheet materials. Further, the I.O. has intentionally not seized the station house diary, case diaries, IMV report and panchanama of vehicle seizure, as the same did not support his investigation and the entire case had come to a 33 conclusion as on 2.10.2007 and 5.10.2007 with the release of the complainant on bail from the station itself and release of the seized vehicle respectively.
20. In support of his contentions, learned Senior Counsel placed reliance on the following judgments:
i) In MOHD. IQBAL AHMED vs. STATE OF ANDHRA PRADESH ((1979) 4 SCC 172)), it is held that "it is incumbent on the part of the prosecution to prove that a valid sanction was granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. The same should be done in two ways: either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or (2) by adducing evidence aliunde to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a 34 manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio."
ii) In SURAJ MAL vs. STATE (DELHI ADMINISTRATION) ((1979) 4 SCC 725)) , it is held that, Section 5(2) and Section 161 IPC - Mere recovery of bribe money divorced from the circumstances under which it was paid, is not sufficient to convict when the substantive evidence in the case was not reliable - Case not proved beyond reasonable doubt.
iii) In P.S. RAJYA vs. STATE OF BIHAR ((1996) 9 SCC 1), it is held that, "Quashing of complaint/FIR - Grounds -
Exoneration in departmental proceedings on identical charge - charge of acquisition of assets disproportionate to income - Appellant exonerated in departmental proceeding in the light of report of the Central Vigilance Commission and concurred by the Union Public Service Commission - Basis of criminal charge being valuation of the appellant's house which the CBI fixed at Rs.7,69,300 as against the earlier valuation by 35 the Income Tax Department at Rs.4.67 lakhs - Both the reports given by the same engineers - Allegation of overwritings and alteration in subsequent report submitted by the CBI for which the appellant filing complaint under Section 340 Cr.P.C. for taking cognizance against officer concerned - Held, appellant's case falls in more than one head of guidelines laid down in BhajanLal case for quashing of a complaint/FIR - Hence prosecution of the appellant under S.5(2) read with S.5(1)9e) of the PC Act is liable to be quashed - Conduct of the CBI - deprecated - Constitution of India, Arts.136 and 226 - Prevention of Corruption Ac,t 1947, S.5(2) read with Section 5(1)(e)"
iv) In RADHESHYAM KEJRIWAL vs. STATE OF WEST BENGAL AND ANOTHER ((2011) 3 SCC 581)), the relevant portion reads thus:
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:-
(i) Adjudication proceeding and criminal prosecution can be launched simultaneously;36
(ii)Decision in adjudication proceeding is not necessary before initiating criminal prosecution;
(iii)Adjudication proceeding and criminal proceeding are independent in nature to each other;
(iv)The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi)The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where allegation is found to be not 37 sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases.
39. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court."
Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case, the entire burden to prove beyond all reasonable doubt lies on the prosecution. The standard of proof in a criminal case is much higher than that of the adjudication proceedings. 38
v) In SUBRAMANIAN SWAMY vs. MANMOHAN SINGH AND ANOTHER ((2012) 3 SCC 64), it is held that, "Prevention of Corruption Act, 1988 - S.19 - Overriding effect on general provision contained in S.190 Cr.PC. - Held, S.19(1) being a special provision prevails over general provision relating to cognizance of offence under S.190 Cr.P.C. - Criminal Procedure Code, 1973, Sections 190 and 197."
vi) In STATE OF M.P. vs. DHARKOLE ALIAS GOVIND SINGH AND OTHERS ((2004) 13 SCC 308), it is held that, "10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned author says: [See Glanville Williams: The Mathematics of Proof II, 39 Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342).] "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague 40 apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
12. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. vs. Krishna Gopal AIR 1988 SC 2154.
On the basis of the reliances referred to supra, learned Senior counsel for the appellant seeks that the 41 appeal be allowed and the appellant be acquitted of the offences levelled against him.
Learned Senior counsel contends that PW-2 Suresh who is the author of the complaint at Exhibit P2 was the accused in Cr.No.198/2007 for the offences under Section 279, 337 of the IPC and Sections 134(a)(b) of the IMV Act, whereby he has pleaded guilty in an accident involving Tata Sumo vehicle and was sentenced to pay a fine of Rs.2,750/-. This evidence on the part of the prosecution is clinching. On all these grounds, the learned Senior counsel prays that the appeal be allowed and the appellant / accused be acquitted of the offences leveled against him.
21. Per contra, learned Spl. P.P. for the Lokayuktha contended that the impugned judgment rendered by the Trial Court being just and proper, needs no interference in this appeal by re-appreciating 42 the entire evidence on record. He has relied on the following citations in support of his case:
1) STATE (NCT OF DELHI) //VS// AJAY KUMAR TYAGI (AIR 2012 SCC 685):
While clarifying that the judgment of the Hon'ble Supreme Court in the case of P.S. Rajya v. State of Bihar, 1996 (9) SCC 1, does not lay down that exoneration in disciplinary proceedings would ipso facto terminate criminal proceedings, it was held as under:
"We are therefore, of the opinion that the exoneration in the departmental proceeding ipso fact would not result in to the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy."43
2) STATE OF MAHARASHTRA //VS// MAHESH G. JAIN (2013) 8 SCC 119:
"The requirements of a valid sanction order by way of perusal of the materials and the satisfaction upon perusal of the materials as stipulated in paragraph No.14 of the judgment of the Hon'ble Supreme Court in the above case of is fully complied with. The said judgment lists out the requisites of a valid sanction order. Further at Paragraph No.18 of the said judgment the Hon'ble Supreme Court declared that hyper technical reasons should not be allowed to succeed and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with.
In terms of Section 19(3) of the PC Act, the higher Courts cannot go into the validity of the sanction order unless there is a failure of justice."
3) STATE OF M.P. vs. VIRENDRA KUMAR TRIPATHI ((2009) 15 SCC 533)):
"In the appeal filed by the State it has been contended that the sanction had been given by the concerned authority and, therefore, the High 44 Court's view is not correct. Additionally, it is submitted that the exclusion of certain items as directed by the High Court cannot be maintained because at the stage of framing charges the Court is not required to take into account materials which have to be established during trial."
4) STATE BY POLICE INSPECTOR vs. T. VENKATESH MURTHY (AIR 2004 SC 5117) "The failure of justice must be clearly pleaded. The stage of considering failure of justice is at trial."
5) M. NARSING RAO vs. STATE OF ANDHRA PRADESH (AIR 2001 SC 318) "Prosecution proved that accused received gratification from the complainant. Presumption under section 20 of the PC Act is "compulsory"and not "discretionary."
6) STATE OF KARNATAKA vs. C. CHAND SAHEB (ILR 2007 KAR 1106) "Defence regarding thrust into pocket taken by accused as per his explanation in Ex.P19 and the questions in the cross examination, is not probablised."
45
7) SYED AHMED vs. STATE OF KARNATAKA ((2012) 8 SCC 527)) "On the merits of the case, learned counsel made several submissions. It was submitted that there is nothing on record to suggest that Syed Ahmed made any demand for gratification or received and accepted any illegal gratification.
This contention does not appeal to us, particularly in view of the unshaken testimony of Nagaraja (PW1) and the corroborative evidence of the eye witness Sidheshwara Swamy (PW2). This witness was near the window and just outside the room occupied by Syed Ahmed. He refers to some conversation that took place between Syed Ahmed and Nagaraja in a low tone and which he could not hear. Thereafter, this witness specifically states that Syed Ahmed asked Nagaraja if he had brought what he was told to bring. Nagaraja replied in the affirmative and thereupon Nagaraja gave the tainted currency notes to Syed Ahmed, which he accepted. Thereafter, Syed Ahmed kept the tainted currency notes in a purse which was then placed in the pocket of his trousers hung on the wall. There is, therefore, a clear statement of Sidheshwara Swamy (PW2), which has not been shaken in 46 cross- examination, to the effect that there was a demand for some gratification by Syed Ahmed from Nagaraja and that Nagaraja paid some money to Syed Ahmed by way of gratification. The ingredients of Section 13(1)(d) of the Act are fulfilled in this case and have been proved beyond any doubt.
We agree with the High Court that in view of Explanation (d) to Section 7 of the Act, the issue whether Syed Ahmed could or could not deliver results (as it were) becomes irrelevant in view of the acceptance of the testimony of Nagaraja (PW1) and Sidheshwara Swamy (PW2)."
8) KRISHNA PILLAI SHREE KUMAR vs. STATE OF KERALA (AIR 1981 SC 1237) "It is no doubt true that the prosecution evidence does suffer from in consistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking ad vantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit 47 may be available to it. That is a salutary method of appreciation of evidence in criminal cases which does not appear to have been followed by the learned Sessions Judge; and that is the reason why he landed himself into wrong conclusions, as has been pointed out by the High Court."
9) BHARWADA BHOGINBHAI HIRJIBHAI vs. STATE OF GUJARAT ((1983) 3 SCC 217) "Minor discrepancies in the depositions of witnesses which did not go to the root of the matter cannot result in the entire prosecution case being thrown out."
10) DHANESHWAR NARAIN SAXENA vs. THE DELHI ADMINISTRATION (AIR 1962 SC 195) "Misconduct need not be for his own duty. Work need not be relatable or pending with the accused."
11) PHULA SINGH vs. STATE OF HIMACHAL PRADESH (AIR 2014 SC 1256) 48 "Even though work / official favour is not pending or it was completed as on the date of trap, it is immaterial."
These are the reliances placed by the learned Spl.PP for the Lokayuktha contending that they are squarely applicable to the present case on hand. The accused was working as a PSI and he being a Government servant as on the date of trap, that is on 15.10.2007 and also had received the bait amount of Rs.3,000/- (Rs.500/- x 6 notes) marked as MO-1 and the same has been proved by the prosecution by facilitating the evidence of PW-3 and PW-4 with regard to Pretrap mahazar at Exhibit P4 and so also fulcrum of trap mahazar at Exhibit P17 that MO-1 cash of Rs.3,000/- being seized from the possession of the accused wherein the said amount is said to have been removed from his pocket. These are all the evidence adduced on the part of the prosecution and evidence of PW-2 in respect of Exhibit P2 and the evidence of PW-3 49 and PW-4 in respect of Pre-trap mahazar at Exhibit P4 and Trap Mahazar at exhibit P17 have been in conformity with evidence of the prosecution and so also in conformity with the evidence of PW-5 / I.O. who laid the charge-sheet against the accused. Therefore, in this appeal, the Trial Court has appreciated the entire evidence in a proper perspective and has arrived at a just conclusion and has convicted the accused as aforesaid. Hence, he contends that the judgment rendered by the Trial Court needs no interference in this appeal by re-appreciating the entire material evidence on record. On this premise, learned Spl. PP for the Lokayuktha seeks for dismissal of this appeal as there are no justifiable grounds urged for intervention for seeking acquittal of the accused for the offences under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act.
22. In the context of the contentions advanced by the learned/ Senior counsel for the appellant and the 50 learned Spl. PP for the Lokayuktha, it is relevant to state that the appellant / accused while working as a Sub-Inspector of Police, Vijayanagar Traffic, P.S., Bangalore, a case was registered against the complainant-Suresha on 20.09.2007 for the offences under Sections 279, 337 of IPC and sections 134(a)(b) of the IMV Act in Cr.No.198/2007. In that context, when the complainant went to Vijayanagar traffic Police Station and met the accused on 12.10.2007, it is alleged that accused had demanded gratification for not arresting the accused in Cr.No.198/2007 as he was complainant in Cr.No.36/2007. On that occasion, it is alleged that the complainant had requested the accused to release him on bail in the station itself. According to the complainant, to oblige his request to release him on bail in the station itself, the accused had demanded a bribe in a sum of Rs.7,000/-. As the complainant was not ready to pay any such amount, he had approached the Lokayuktha Police and registered a complaint on 51 15.10.2007 in Cr.No.36/2007 for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act. The Trial Court after framing charges and after hearing the prosecution and the accused, has passed an impugned judgment of conviction and order of sentence as stated above. The prosecution had examined witnesses as PW-1 to PW-5 and marked documents at Exhibits P1 to P27 and MO-1 to MO-12. Thereafter, the accused was examined under Section 313 of the Cr.P.C. for incriminating statement and he also marked documents at Exhibits D1 to D5.
23. Though PW-2 Suresh who is arraigned as accused in the aforesaid crime in Cr.No.198/2007, he has ventured to file a complaint in Cr.No.36/2007 before the Police Inspector, Lokayuktha, Bengaluru City, alleging that appellant / Accused had demanded bribe in a sum of Rs.7,000/- in order to release him in the station itself. Further that there was some discussion in between the complainant and the accused 52 and the accused is alleged to have pegged the amount at Rs.3,000/-. Hence, the evidence of PW-2 Suresh requires to be appreciated in a proper perspective, as some credentiality is required for tilting the balance in criminal justice delivery system.
24. Preponderance of probability is even in respect of domestic enquiry held against the accused, whereby this accused was facing a Departmental enquiry before the competent authority and he was exonerated. But in the criminal justice delivery system, it is the domain of the prosecution to adduce or facilitate the evidence beyond all reasonable doubt for securing conviction. No particular witness in any case is required to prove any fact. Merit of a statement is important. It is well-known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the statement is the true and correct version of the case of the prosecution. The courts are concerned with the merits of the statements of the 53 particular witness and they are not concerned with the number of witnesses.
Though PW-2 Suresha has filed a complaint as per Exhibit P2, credentiality of his evidence is very much required to arrive at a conclusion. Therefore, impeaching creditworthiness is the cardinal principle of criminal justice delivery system. If not, gravamen of the accusation, that is accused would be the sufferer.
25. In view of the aforesaid reasons and findings, it requires for re-appreciation of the evidence of PW1 to PW5 and so also the fulcrum of Exhibit P4 the Pre- trapmahazar or Demonstration mahazar held in the office of the Police Inspector, Lokayuktha. Subsequent to drawing the pre-trap mahazar, the Police Inspector of Lokayuktha / I.O. led the team consisting of his staff members and so also panch witnesses inclusive of the complainant to the office of the accused. But in the instant case, when the team members have been led by 54 the Police Inspector of Lokayuktha to the Vijayanagar Traffic P.S., appellant / accused is alleged to be working as a Sub-Inspector of Police, but at the relevant time, at 8.30 a.m., the accused was not very much present in his chamber in Vijayanagar Traffic P.S. but there was some correspondence taken place in between the accused and the complainant through mobile phone and it was ascertained that accused would return to his chamber. Then only that certain acts which are briefed in his complaint and also briefed in the trap mahazar and even prior to the pre-trap mahazar, according to the instructions issued by the Police Inspector of Lokayuktha had been executed and drew the mahazar at Exhibit P17 in the office of the accused, that is Vijayanagar Traffic P.S.
26. But at a cursory glance, it reveals that the evidence of PW-3 and PW-4 is not in conformity with the evidence of PW-2 who is the author of the complaint and who is the accused in Cr.No.198/2007 for offences 55 under Sections 279 and 337 of the IPC involving a Tata Sumo vehicle, in which case he had pleaded guilty before the Metropolitan Magistrate II-Court and had paid a fine of Rs.2,750/-. The same is reflected in the evidence of PW-1 who accorded sanction for prosecution.
It is the case of the prosecution that the accused had demanded illegal gratification for releasing the complainant / PW-2 Suresh, who was the accused in Cr.No.198/2007 of Vijayanagara Traffic P.S. for the offences punishable under Sections 279 and 337 of IPC and Section 134(a)(b) of the IMV Act. The complainant is alleged to have requested the accused / appellant not to produce him before the court and in turn to release him in the police station itself in respect of the case in Cr.No.198/2007.
A perusal of Section 13(1)(a) of the PC Act of 1988, the prosecution is obliged to prove that the accused 56 accepted the bribe amount of MO-1 being Rs.3,000/- (6 notes of Rs.500/- denomination each) and the said amount was obtained by him being a Government servant who is arraigned as an accused as a gratification or reward as contemplated under Section 7 of the PC Act.
But there is no specific evidence to this effect to secure conviction of the accused. But it is well-settled principle that the prosecution in order to prove the guilt of the accused, has to facilitate worthwhile evidence in order to secure conviction that the accused had demanded the bribe from the complainant / PW-2 Suresh who is alleged to be an accused in Cr.No.198/2007. However, at a cursory glance of the evidence of PW-1 to PW-5 and specifically the evidence of PW-1 who accorded permission to prosecute the accused for offences under the PC Act, this sanction is only an administrative correspondence under Section 19 of the PC Act. However, even on going through the 57 scope of Section 19 of the PC Act, it is akin to Section 20 of the PC Act, of 1988. The presumptive value is always to be appreciated in accordance with the evidence facilitated by the prosecution with the other evidence such as PW-2, the author of the complaint and PW-3 and PW-4 being the panch witnesses of Exhibit P4 and Exhibit P17 respectively as demonstration panchanama and trap mahazar said to be conducted by the Police Inspector of Lokayuktha relating to the allegations made against the accused.
But it is fairly well-settled position of law that on the basic principles, proceedings in criminal cases and so also Departmental proceedings can go on simultaneously except where Departmental proceedings and the criminal prosecution are based on the same set of facts and the evidence of both the proceedings are common to a certain extent. But in this case, the court has to decide taking into account any special features of the case relating to the accused. But in the 58 Departmental proceedings, the accused was exonerated but the accused has been convicted by the Special Court by the impugned judgment which has been assailed and also re-scanning of the entire evidence under this appeal. The criminal prosecution which has been launched for the offence that the accused had demanded and accepted the bribe of MO-1 which was tendered by PW-2 Suresh even in the presence of PW-3 and also in the presence of PW-4 having applied phenolphthalein powder on the parts of the currency notes and merely because the said currency notes have been produced by the accused and also removal of MO- 1 from the jerkin part of the accused, it cannot be the specific evidence on the part of the prosecution to say that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Therefore, at a cursory glance of the evidence of PWs 2, 3 and 4 which is akin to the evidence of PW-5 being the I.O. who laid the charge-sheet against the accused by drawing the 59 Entrust mahazar or otherwise to say, the Demonstration Mahazar as per Exhibit P4 in the office of the Police Inspector of Lokakuktha in the presence of PW-3 and PW-4 and so also in the presence of PW-2 the author of the complaint, but the evidence on the part of the prosecution appears to be shaky and also there are clouds of doubt in the theory put forth by the prosecution. The same is seen in the evidence on the part of the prosecution. But when once clouds of doubt has arisen on the part of the prosecution, the same shall be extended in favour of the accused alone. It is the well-established principles of law in a criminal justice delivery system. Accordingly, it is opined that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt by facilitating worthwhile evidence. Consequently, the accused is deserving for acquittal. Accordingly, intervention in this appeal is required.
60
Hence, when once doubt has arisen in the mind of the court, that benefit of doubt shall be accrued in favour of the accused alone. In the totality of circumstances, if it is seen that there are some clouds of doubt, then the evidence of the prosecution should be weighed properly. If not, gravamen of the accused would be the sufferer. Consequently, it is opined that the prosecution has not facilitated evidence beyond reasonable doubt for securing conviction of the accused. However, benefit of doubt is always in favour of the accused alone. In view of the aforesaid reasons and findings, it is opined that the accused is deserving for acquittal. Accordingly, I proceed to pass the following:
ORDER The appeal preferred by the appellant / accused under Section 374(2) of Cr.P.C r/w Section 27 of Prevention of Corruption Act, 1988 is hereby allowed.
Consequently, the judgment of conviction and order of 61 sentence rendered by the Trial Court in Spl.
C.C.No.93/2008 dated 23.12.2013 is hereby set aside.
Consequently, the appellant / accused is hereby acquitted for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act, 1988 for which he is charged.
Bail bond if any executed by the accused / appellant shall stand cancelled.
Sd/-
JUDGE KS