Karnataka High Court
State Of Karnataka vs Mohiuddin on 21 January, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 21ST DAY OF JANUARY, 2013
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.949 OF 2007
BETWEEN:
State of Karnataka
Through the Police Inspector,
Karnataka Lokayukta,
Raichur.
... APPELLANT
(By Shri Syed A.Habeeb, Special Public Prosecutor)
AND:
Mohiuddin,
S/o Sabjali,
Sheristedar in A.C.Office
Raichur.
... RESPONDENT
(By Sri S.S.Halalli, Advocate )
This Criminal Appeal is filed under Section 378 (1) & (3)
of Cr.P.C. by the State P.P. for the state praying this Hon'ble
Court to grant leave to file an appeal against the judgment order
of acquittal dated 3.2.2007 in Spl.Case No.2/2001 on the file of
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Prl. S.J., Raichur, acquitting the respondent/accused for the
offence punishable under Sections 7 and 13 910 (d) R/w
Section 13(2) of Prevention of Corruption Act, 1988.
This Criminal Appeal coming on for final hearing this
day, the Court delivered the following:
JUDGMENT
Heard the learned Special Public Prosecutor appearing for the appellant and perused the record.
2. It was the case of the prosecution that the respondent- accused was working as a Sheristedar in the office of the Assistant Commissioner, Raichur and that on 10.5.2000 at about 12.45 p.m., the respondent had demanded illegal gratification of Rs.10,000/- from the complainant, one C.S.Rastapur, Advocate, as a reward for doing an official favour, namely, to issue the certified copies of the awards and had also accepted the illegal gratification from the complainant to his pecuniary advantage, by abusing his position as a public servant and thereby committed offences punishable under 3 Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity).
3. The background to the said alleged incident was that the complainant had applied for 100 certified copies of the awards and he had obtained 52 certified copies and was yet to obtain 48 certified copies prior to the incident. The complainant was working as a Legal Advisor to the Karnataka Power Corporation and according to the complainant, on 4.5.2000, he had applied for 48 certified copies before the Assistant Commissioner, Raichur and he did not receive the certified copies and hence he approached the office of the Assistant Commissioner for the purpose of obtaining the same and met the accused on 8.5.2000 and the accused had demanded a sum of Rs.10,000/- for issuance of the said certified copies. It is on the said demand that the complainant had approached the Lokayukta Police, who in turn, set up a trap and accordingly 4 had taken steps as a prelude to such a trap, as was the established practice, of identifying the trap witnesses and preparing the currency notes duly tainted with Phenolphthalein powder in order to trap the accused and it is thereafter that the complainant, along with the trap witnesses and the squad of the Lokayukta Police, visited the accused and on a demand being made and the complainant having paid the amount and the accused having received the same, the accused was taken into custody and on the basis of the mahazar drawn up and further proceedings taken up, the petitioner was charge-sheeted and the accused-respondent having pleaded not guilty, the court below had framed the charge and had proceeded to trial. The prosecution had examined seven witnesses, PW.1 to PW.7 and marked Exhibits P.1 to P.11,Exhibits D.1 to D.5 and Material Objects MOs.1 to 11. On the basis of the same, the court below framed the following points for consideration:- 5
" 1. Whether the prosecution proves that the accused being a public servant working as Sheristedar in the office of Assistant Commissioner, Raichur in exercise of the official favour by the accused in the complainant C.S.Rastapur, Advocate i.e., for the purpose of certified copies of awards demanded illegal gratification of Rs.10,000/- from him on 10.5.2000 and obtained the same from him as gratification other than legal remuneration as a motive and reward for doing an official favour in exercise of his official function and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution further proves that the accused on the above said date, time and place, demanded and accepted the said illegal gratification from the said complainant for himself other than legal remuneration as a motive or reward for issuing certified copies of awards to the complainant by abusing his position as such public servant and thereby committed an offence punishable under Sections 13(1)(d) read with 6 Section 13(2) of the Prevention of Corruption Act?
3. Whether the sanction accorded to prosecute the accused is valid one?"
The court below held points 1 and 2 in the negative and point no.3 in the affirmative and has acquitted the accused of all the charges. It is this which is under challenge in the present appeal.
4. The learned Special Public Prosecutor in support of the grounds raised in the present appeal would take this court through the record and place reliance on the following authorities:-
1. Billa Nagul Sharief vs. State of Andhra Pradesh, 2010 AIAR (Criminal) 795,
2. The State by Police Inspector vs. V.Sejappa
3. Krishna Ram vs. State of Rajasthan, AIR 2009 SC 2112.7
The Special Public Prosecutor would submit that the court below has committed a gross error in misconstruing the circumstances of the case and not appreciating the positive evidence of the prosecution to prove its case beyond all reasonable doubt.
5. However, the court below has assigned several reasons as to the non-acceptance of the case of the prosecution and the first and foremost being that in respect of the very incident, a departmental inquiry was also conducted by the employer of the respondent and at that inquiry, the respondent has been absolved of all the charges and the case has been held to be not proved. The said circumstance has also weighted on the mind of the court below. In any event, of the facts and circumstances, there are certain significant aspects on which the court below has held that the charge was not proved beyond all reasonable doubt, as for instance, the very presence of the accused at his work place on 8.5.2000. According to the 8 defence, the accused had applied for leave on 8.5.2000 and therefore, the complainant having met the accused at his work place on 8.5.2000 was not true and was not established by any cogent evidence. But on the other hand, the aspect of the accused not having been present at his work place and he having applied for leave was verified from the production of the Office Register, which indicated that 6.5.2000 and 7.5.2000 were General holidays and on 8.5.2000 the respondent - accused had applied for leave and was not present at his work place. This aspect of the matter has not at all been addressed by the learned Counsel for the appellant. The court below has found the same to be a significant aspect which has not been explained by the prosecution. It was also the case of the accused that the complainant had an "axe to grind" against the accused, since the accused had not cooperated in releasing the award amounts, as and when the complainant had brought the claimants, where he had lodged claims in the names of other counsel and without the said claimants being identified by the 9 Village Accountant, the accused had refused to release the amounts, which was a major cause for the complainant harbouring ill-will against the accused-respondent. Further, insofar as the demand and acceptance of the amount is concerned, it was highlighted that it was not patent as to the amount that was demanded by the accused, as neither in the complaint nor in his evidence, had the complainant explained the exact amount which was demanded by the accused for his own benefit and the demand of the amount made to be paid to his superior, namely, the Assistant Commissioner. This aspect of the matter has been highlighted in holding that it was also not clear as to the basis of demanding Rs.10,000/ - for issuance of certified copies. As already stated, it was the complainant's case that he had applied for 100 certified copies of the awards and that he had already received 52 certified copies and therefore as on the date of the incident, it was only 48 certified copies that were due to be received by the complainant and it was also the complainant's case that the 10 accused had demanded Rs.100/- per certified copy. If this were so and only 48 copies were to be issued, it was not clear as to how Rs.10,000/- was demanded and this aspect has also been emphasized by the court below.
The next aspect as to the manner in which the demand and acceptance was made or the sequence that followed in executing the trap has also been inconsistently stated by the complainant vis-à-vis the testimony of PW.2, the Investigation Officer and PW.6 the trap witness. These inconsistencies also are established, which the court below has held against the prosecution. The further evidence of the accused that on 8.5.2000, he had applied leave to take his daughter to Gulbarga for treatment by a Plastic Surgeon and the material produced to show that he had indeed visited a Plastic Surgeon along with his daughter, further lend credence to his claim that he was on leave and was not available in Raichur on 8.5.2000.
It was necessary for the prosecution to establish the significant aspect of demand and acceptance of illegal 11 gratification beyond all reasonable doubt. The only witness who could effectively speak of such demand and acceptance apart from the complainant was PW.2 a shadow witness. However, he has been treated as hostile, in which event, it is the only testimony of the complainant that would remain. As already stated, it was the grievance of the accused that the complainant had a grouse against him and was out to implicate the accused and therefore, reliance being placed solely on the evidence of PW.1 would not be safe. The contention that the evidence of a hostile witness could yet be relied upon to the extent that it supported the case of the prosecution is a proposition that cannot be applied in all circumstances. If the categorical statement that he had heard the accused make a demand and that he had accepted the legal gratification that was paid to him is resiled from, it is not clear as to how the prosecution would seek to place reliance on the evidence of such a witness.
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Further, as already stated, it is not denied by the prosecution that the accused, who had also faced a departmental inquiry in respect of the very incident, on the basis of the same evidence and same allegations, has been absolved. When the standard of proof required in a civil proceeding rests on preponderance of probabilities and if the standard of proof in a criminal trial is evident beyond all reasonable doubt, it is not clear as to how the prosecution expects to assert its case, when even on a preponderance of probabilities, the case against the accused has failed the test. Therefore, having regard to the discrepancies which are broadly highlighted hereinabove, on the basis of which, the court below has negated the case of the prosecution, it cannot be said that the prosecution had proved its case beyond all reasonable doubt. Though the authorities cited by the appellant are authorities for the facts and circumstances of the case decided therein, the broad principles laid down there, cannot be applied to the present case on hand having regard to the serious 13 discrepancies, which have been left unanswered and for which there is no explanation forthcoming even at this point of time.
Therefore, the appeal lacks merit and is accordingly dismissed.
Sd/-
JUDGE nv