Karnataka High Court
State By The Police Inspector vs Hanumashetty on 14 September, 2012
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL APPEAL NO.234/2009
BETWEEN:
State by the Police Inspector,
Lokayuktha Police,
Chitradurga.
... APPELLANT
(By Smt. T.M. Gayathri, Adv.)
AND:
Hanumashetty,
S/o. Choudashetty,
Aged about 60 years,
Retd. Chief Officer,
Town Panchayat,
Hosadurga Town.
... RESPONDENT
(By Sri G.G. Chagashetti, Adv.)
This Crl.A. is filed under S.378(1) & (3) Cr.P.C.,
praying to grant leave to file an appeal against the
judgment and order of acquittal dated 04.01.2008 passed
by the Prl. Sessions Judge, Chitradurga, in Special Case
(PCA)No.3/2004, acquitting the respondent /accused for
the offence p/u/Ss.7, 13(1)(d) r/w S.13(2) of Prevention
of Corruption Act.
2
This Crl.A. coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This appeal is directed against the judgment of acquittal in Special Case (P.C.A)No.3/2004 dated 4.1.2008 passed by the learned Principal Sessions Judge/Special Judge, Chitradurga.
2. Respondent/accused was charge sheeted by the Lokayuktha police for the offences under Ss.7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 ("the Act" for short).
3. Case of the prosecution in brief is that:
Accused was working as Chief Officer, Town Panchayath, Hosadurga, during 2002-03 and that Abdul Basha Sab/PW.3 owns a site bearing No.2360/A, situated by the side of his residence and that he had filed O.S.No.183/2002 against one Budan Bi, in which the accused was examined as a witness and the suit came to 3 be dismissed by the Civil Judge (Jr.Dn.,), Hosadurga and that, after dismissal of the suit, Abdul Basha Sab filed an application dated 6.3.2003/Ex.P1 to the Town Panchayath, Hosadurga, for measurement of his site bearing No.2360/A and to issue an endorsement and that a legal notice dated 21.3.2003/Ex.P5 was got issued by Abdul Basha Sab to the accused to measure his site and to issue endorsement. It was alleged that the accused did not attend to the application and on 12.5.2003, M.K.Dadapeer/PW.1, approached the accused at his residence in connection with the application of Abdul Basha Sab, his maternal uncle and that the accused demanded `2,000/- as illegal gratification to measure the site of PW.3 and since the request made by M.K.Dadapeer to reduce the alleged bribe amount was in vain, by stating that he would bring the money on the next day, M.K.Dadapeer left the house of the accused. On 13.5.2003, M.K.Dadapeer unwilling to pay the bribe amount, went to the office of Lakayuktha police at Chitradurga and filed a complaint/Ex.P2 alleging demand of illegal gratification of `2,000/- by the 4 accused. On the basis of the said complaint/Ex.P2, a case in Crime No.1/2003 was registered by M.N.Karibasavanagowda/PW.10. In the presence of mahazar witnesses, PW.10 conducted proceedings of entrustment mahazar/Ex.P3 under which phenolphthalein powder was applied to 20 currency notes of `100/-
denomination produced by M.K.Dadapeer and was entrusted to him. On the same day, PW.10, panch witnesses, complainant and others went to Hosadurga. M.K.Dadapeer and C.B.Jagadeesha, shadow panch witness/PW.7 was asked to go to the office of Town Panchayath and pay the bribe amount, only on demand made by the accused. M.K.Dadapeer was directed to give signal by wearing spectacles, if the tainted money was accepted by the accused. At about 8.00 p.m. PW.1 gave pre-determined signal and PW.10 accompanied by K.C. Puttaswamy, co-panch witness/PW2, went inside the office of the Gram Panchayath, Hosadurga, where trap mahazar/Ex.P4 was conducted. When the hands of the accused were dipped into Sodium Carbonate solution, the 5 same turned into pink colour and when the accused was directed to produce the bribe money, the same was produced by the accused which was in his left side trouser pocket. Serial numbers of the currency notes tallied with the serial numbers noted in the entrusted mahazar/Ex.P3 and the formalities were completed. Articles which were seized at the time of entrustment mahazar and trap mahazar were sent to FSL. After completion of the investigation, receipt of chemical examiner's report/Ex.P21 and sanction order of the department/Ex.P20, charge sheet was filed by PW.10. Accused appeared and pleaded not guilty. During trial, prosecution examined PWs.1 to 10 through whom Ex.P1 to P23 and MOs.1 to 11 were marked. Accused was examined under S.313 Cr.P.C. and it is case of denial. Ex.D1 and D2 were marked during the cross-examination of prosecution witnesses. Considering the rival contentions and record of the case, learned Trial Judge has held that the prosecution is failed to prove the demand and acceptance of the alleged bribe amount and 6 as a result, acquitted the accused of the charges levelled against him.
4. Smt. T.M.Gayathri, learned counsel, firstly, contended that, though the evidence of the prosecution witnesses clearly establishes and proves beyond reasonable doubt that the accused demanded and accepted the bribe amount of `2,000/- from the complainant to show an official favour, the learned Special Judge without correctly appreciating the evidence has passed the impugned Judgment, which has resulted in mis-carriage of justice. Secondly, learned Trial Judge has given an undue importance to minor discrepancies and has disbelieved the evidence adduced on behalf of the prosecution, on account of which there is mis-carriage of justice. Thirdly, learned Trial Judge ought to have drawn presumption under S.20 of the Act and that the prosecution has successfully proved that the tainted money was recovered from the exclusive possession of the accused during trap and more particularly, when there is 7 no proper and satisfactory explanation by the accused as to how and under what circumstances that money came into his possession. Lastly, the reasons assigned to pass judgment of acquittal is neither just nor proper much less, correct and hence, the impugned Judgment warrants interference.
5. Keeping in view the record of the case and the contentions, the point for consideration is, whether the prosecution has proved beyond all reasonable doubt that the accused demanded and accepted illegal gratification of `2,000/- for doing an official favour to PWs.1 and 3?
6. M.K. Dadapeer/PW.1 is the complainant. The complaint is Ex.P2. Abdul Basha Sab/PW.3 is the maternal uncle of PW.1. K.C.Puttaswamy/PW.2 is a co-panch witness to the entrustment mahazar and recovery mahazar, Exs.P3 & P4 respectively. C.B.Jagadeesha /PW.7 is shadow panch witness. K.Pranesha/PW.4, a police official, submitted FIR to the Court. K.Satyanarayana Reddy/ PW.5 carried MOs., to the laboratory for chemical 8 examination. S.T.Srinivasaiah/PW.6, an Assistant Engineer prepared the sketch/Ex.P17. Nilaya Mithash/PW.8, sanctioning authority, issued Ex.P20/santion order for prosecution of the accused. S.A.P.Khadri/PW.9 is the chemical examiner and his report is Ex.P21. M.N.Karibasavanagowda /PW.10 is the investigation officer who filed the charge sheet.
7. There is no dispute that the respondent/accused, at the relevant point of time was working as Chief Officer of Town Panchayath, Hosadurga and is a public servant.
8. It is trite that, to prove the prosecution case, support of shadow witness is must to avoid the possibility of the complainant accomplishing the revenge against the public servant and not obliging certain demand. Factum of demand of gratification, if not proved, the presumption under S.20 of the Act does not arise.
9. In this case, PW.1 is the complainant, who alleged that the accused made demand of `2,000/- for 9 doing an official act and that he paid `2,000/-. When the trap was conducted, according to the prosecution, PW.7 was present. However, PW.7 has not supported the prosecution case. He has said that he was at a distance of 12 feet and could not hear the conversation between the complainant and the accused.
10. Undeniably, the accused deposed in O.S.No.183/2002, filed by PW.3 against Budan Bi and the suit was dismissed. In the circumstance, PW.3 and the complainant, in order to accomplish the revenge against the public servant/accused, hatched a scheme which becomes clear from the evidence of the PW.3. According to PW.1 and Ex.P1, accused made a demand for payment of the bribe amount on 12.5.2003. Evidence of PW.3, who is the owner of the property in question and father-in-law of PW.1, makes it clear that, even two days prior to the trap, he had been to the office of the Lokayuktha Police to know about the complaint lodged by PW.1, which clearly falsifies the say of PW.1 that he went to the office of 10 Lokayuktha for the first time on 13.5.2003 and lodged the complaint regarding the alleged demand made by the accused on 12.5.2003. If the version of PW.3 were to be accepted, the alleged demand must have been earlier to 12.5.2003. It is not the case of either PW.1 or PW.3, that the demand for payment of bribe amount was made by the accused earlier than 12.5.2003. In the face of contradictory evidence of PWs.1 and 3 who are the material witnesses and PW.7 not being able to hear the conversation which took place between the accused and PW.1, on the night of 12.5.2003, the prosecution was not proved beyond reasonable doubt that the accused had made a demand for payment of gratification to do an official act.
11. The evidence on record clearly makes out that, Ex.P1 was submitted on 7.3.2003 and the accused referred the same to D.C.P. section on 8.3.2003 itself. The accused had not withheld the said application nor had caused any harassment to PW.3. In the circumstances, the Trial Court 11 is justified in characterizing the evidence of PW.1 as nothing but first grade falsehood. There is no credible evidence placed on record by the prosecution, on the basis of which it can be held that, there was a demand made by the respondent for payment of gratification to do an official act as alleged by the prosecution.
12. To apply the presumption under S.20 of the Act, there has to be evidence establishing the demand and acceptance of the gratification by the accused. If the said factum is not proved by the prosecution, the raising of the presumption under S.20, in my opinion, would be unjustified.
13. In this case on the basis of the evidence of PWs.1, 3 and 7, it is not possible to hold that there was a demand made by the accused to do the official favour as alleged in Ex.P1. The Trial Court has appreciated the evidence of the said witnesses in detail. Evidence of PW.3 has virtually axed the case of the prosecution. Mere recovery of money as per Ex.P4 itself cannot be held to be 12 proper and sufficient proof of acceptance of bribe. In the circumstance, the submission made that in view of the presumption under S.20 of the Act, the Trial Court should have held that the prosecution has proved its case beyond reasonable doubt is devoid of merit.
14. In view of the above, the one and the only conclusion which can be arrived at is that, the prosecution has failed to prove its case beyond reasonable doubt. In the circumstances, the order of acquittal passed by the Trial Court is justified. No interference with the impugned Judgment is warranted.
Consequently the appeal fails and is dismissed.
Sd/-
JUDGE Ksj/-