Karnataka High Court
State Of Karantaka Through P I Karnataka ... vs Siddaling Hanamant Hulasadar on 9 July, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 09TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.378/2008
BETWEEN:
State of Karnataka
Through P.I., Karnataka Lokayukta
Belgaum. ...Appellant
(By Sri Jagadish Patil, Advocate)
AND:
Siddaling Hanamant Hulasadar
Secretary, Grama Panchayat Office
Nej, Taluk: Chikkodi. ...Respondent
(By Sri Santosh B.Malagoudar, Advocate)
This appeal is filed under section 378 (1) & (3) Cr.P.C.,
praying to grant leave to appeal against the judgment of
acquittal dated 30.11.2007, on the file of Special Judge (Prl.
Sessions Judge) at Belgaum & etc.
This appeal coming on for final hearing this day, the
court delivered the following:
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JUDGMENT
The respondent (hereinafter referred to as 'the accused') was tried and acquitted of offences punishable under sections 7, 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act'). Therefore, the State represented by Lokayukta Police has filed this appeal.
2. I have heard Sri Jagadish Patil, learned counsel for appellant and Sri Santosh B.Malagoudar, learned counsel for accused.
3. The accused was tried for following charges:-
That the complainant/C.W.1 Babasaheb Kadagouda Patil, resident of Nej Village, Taluk Chikodi, had filed an application in the name of his wife Smt.Suman W/o. Babasaheb Patil, before you since you were then working as Secretary, Gram Panchayat Nej, for grant of a house under the "Ashraya Yojane" sponsored by the Government of Karnataka on the ground that neither he (complainant) nor his wife Suman own or possess house for their residence and also on the ground of their 3 poverty and in that connection the complainant had met and requested you to do needful in the matter. On 28.09.2002 again the complainant met you and requested for doing needful for getting sanctioned a house in the name of his wife under the above stated scheme. At that time, you being a public servant working in the capacity of Secretary, Gram Panchayt Nej, insisted and demanded minimum bribe amount of Rs.3,000/- from him, pretending him that if that bribe amount is paid, you would incorporate the name of the complainant's wife in the Grama Sabha list and would sent it for such grant or sanction and further would arrange for grant/sanction of house from the Ashraya Yojane Committee and in pursuance of your aforesaid demand on 03.10.2002 at 07.20 p.m. when the complainant enquired you on Chikodi-Ichalkaranji Road, at Bedkihal Circle, in front of Punam Tea Stall, you insisted, demanded and accepted bribe amount of Rs.3,000/- from the complainant Babasaheb Patil, a gratification, other than legal remuneration as a motive or reward for doing an official act in exercise of your official 4 function as Secretary of Nej Gram Panchayat, for showing the official favour stated supra and thereby you committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988 and within the cognizance of this court.
That you accused being public servant viz Secretary, Gram Panchayat Nej, abused your position as public servant and on 28.09.2002 illegally demanded bribe amount of Rs.3,000/- from the complainant and in pursuance of the said demand, on 03.10.20002 at 07.20 p.m., at the above stated place you demanded and received bribe of Rs.3,000/- from the complainant for showing an official favour needed by him stated supra and obtained pecuniary advantage to the tune of Rs.3,000/- and thereby you committed offence of Criminal Misconduct under section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988 and within the cognizance of this court."
4. In order to prove the above charges, prosecution examined PW1 to PW6 and relied upon the contents of 5 documents marked as Ex.P.1 to Ex.P.13 and material objects marked as M.O.1 to M.O.7.
5. The learned Special Judge on appreciation of evidence has held that prosecution has failed to prove that accused has demanded and accepted bribe amount as a motive or reward to do official favour to PW3.
6. On hearing learned counsel for parties and after going through evidence and the impugned judgment, I find the learned Special Judge has suspected the case of prosecution by taking into consideration the evidence and conduct of PW3, who is the first informant (defacto complainant). The learned Special Judge has held that accused who was working as the Secretary of Gram Panchayat Nej was neither capable of doing any official act in favour of PW3 nor he was in a position to show any official favour to PW3.
7. It is not in dispute and cannot be disputed that PW3- Babasaheb Kadagouda Patil had submitted an application in 6 the name of his wife for grant of a house under Ashraya scheme.
8. As per evidence of PW3, he owns a house and one acre of land. Therefore, he was not eligible for allotment of a house under Ashraya scheme. PW3 in order to circumvent this hurdle, filed an application in the name of his wife and the same was given to accused to place it in gram panchayat meeting wherein eligible persons for allotment of houses will be prepared on the basis of their economic background. Such list will be forwarded to Zilla Panchayath for allotment of houses to eligible persons under Ashraya scheme.
9. PW3 has deposed; that he had submitted an application in the name of his wife for allotment of a house under Ashraya scheme on 28.09.2002. The accused demanded illegal gratification of Rs.3,000/- to process the application and recommend for allotment of a house under Ashraya scheme to the wife of PW3.
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10. PW4-Bhimanagouda Lakkappa Patil, Deputy Secretary of Zilla Panchayat at Belgaum has given evidence regarding procedure for allotment of a house under Ashraya scheme. PW4 has deposed; that allotment of houses under Ashraya scheme is within the jurisdiction of Zilla Panchayat; aspirants for allotment of houses should submit their applications to the concerned Gram Panchayat along with Income Certificate, Residential Certificate, Caste Certificate and Domicile Certificate. In the meeting of Gram Panchayat, the members of Gram Panchayat would scrutinise the applications and verify the economic background of applicants to finalise the list of applicants and pass a resolution to that effect and forward the same to Zilla Panchayat at Belgaum.
In the circumstances, PW3 did not have reasons to believe that accused had power to allot a house in favour of the wife of PW3. Above all, application stated to have been submitted by PW3 in the name of his wife to accused for allotment of a house under Ashraya scheme was not found 8 in the office of Nej Gram Panchayat, though the Investigating Officer had seized as many as 235 applications for allotment of houses under Ashraya scheme. Thus, the basic evidence adduced by prosecution that accused had demanded PW3 to pay illegal gratification of Rs.3,000/- for allotment of a house under Ashraya Scheme is not free from reasonable doubts.
11. The first information lodged by PW3 reveals that it was registered on 03.10.2002. However, the evidence of PW3 and PW6 (Investigating Officer) would reveal that there were deliberations between PW3 & PW6 on 01.10.2002. PW6 has admitted that PW3 met him and informed him about demand of bribe by accused, however PW6 did not register the first information. On the other hand, he gave a taperecorder to PW3 and instructed him to meet accused and record conversation between PW3 and accused to confirm alleged demand of bribe. PW3 has admitted that he had taperecorded conversation between him and accused and said tape containing alleged conversation between PW3 and accused was not made available before trial court. The 9 investigation records do not disclose as to what had happened to taperecorded conversation.
12. On 03.10.2002, Investigation Officer (PW6) had registered the complainant stated to have been lodged by PW3. On the same day, raiding party consisting of PW1 to PW4 proceeded to the office of Gram Panchayat at Nej, which is at a distance of 82 kilometres from Belgaum (office of Lokayukta Police), even without ensuring presence of accused. To their surprise, raiding party found that office of Gram Panchayat at Nej was locked and accused had gone to attend a meeting at Chikodi. In the normal circumstance, the raiding party had to re-arrange trap on the following day. On the other hand, the Police Inspector learnt from villagers that accused had gone to attend a meeting at Chikodi and he would return back during night. The Police Inspector took other members of raiding party to Bedkihal circle, where accused was expected to get down from bus to reach his place.
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13. The raiding party stayed near Bedkihal circle. At about 7.20 p.m., as expected by raiding party, accused got down from bus. Immediately thereafter, PW3 met accused as if it was a prearranged meeting. PW3 has deposed; there was instantaneous demand of bribe by accused, as if accused had firm belief with PW3 that he would carry money with him and he would give it to accused wherever and whenever it was demanded by him. PW3 and other witnesses of raiding party have deposed that accused had received tainted currency notes (smeared with phenolphthalein powder entrusted to PW3 in the office of Lokayukta Police at Belgaum). Thereafter, the members of raiding party, including Police Inspector, overpowered accused and collected tainted currency notes, which were smeared with phenolphthalein powder from accused and both hands of accused were washed by using sodium bicarbonate solution and resultant solution turned into pink colour. The tainted currency notes were lying on a table in Punam Tea Stall situate near Bedkihal circle. The Police Inspector (PW6) 11 seized tainted currency notes. The Police Inspector and the members of raiding party verified the notes and confirmed that they were tainted currency notes, which were entrusted to PW3 in the office of Lokayukta Police at Belgaum and prepared entrustment panchnama as per Ex.P.3 from 12.30 p.m. to 01.50 p.m. Thereafter, raiding party proceeded to the office of Gram Panchayat at Nej and verified all the documents. The Investigating Officer did not find the application alleged to have been submitted by PW3 to accused. PW3 gave a copy of application as per Ex.P.5 to the Investigating Officer (PW6). The Investigating Officer had seized register and other applications for allotment of houses under Ashraya scheme. There was no entry in the register relating to application alleged to have been submitted by the wife of PW3. The register was maintained in regular course. There were 235 applications submitted by the aspirants for allotment of houses under Ashraya scheme. PW3 has admitted that all along, he was holding copy of application (Ex.P.5) with him. 12 The evidence of PW3 is complacent regarding the original of application submitted by his wife. However, PW3 had handed over copy of application as per Ex.P.5 to Police Inspector. The copy of application was seized in the office of Lokayukta on the following day of trap. The application does not bear any indication that it was ever submitted to the office of Gram Panchayat at Nej.
14. As already stated, PW3 had submitted an application in the name of his wife. The wife of PW3 was cited as a witness for prosecution. For the reasons best known to prosecution, the wife of PW3 was not examined before trial court.
15. Thus, on re-appreciation of evidence of PW1 to PW3 and the Investigation Officer (PW6), I find that prosecution has failed to prove beyond reasonable doubt that PW3 had approached accused to process the application submitted by him in the name of his wife for allotment of houses under Ashraya scheme. On the other hand, copy of application 13 relied upon by prosecution would reveal that wife of PW3 was the applicant. Thus, it can safely be inferred that PW3 had filed a dubious application through his wife, as he was aware that he was not eligible for allotment of a house under Ashraya scheme. In other words, PW3 was owning one acre of land and a house in his garden land and he was living in that house. Therefore, PW3 had filed an application through his wife, wherein she has stated that neither herself nor her husband own any land or house in the said village. It appears PW3 became aware that application submitted through him in the name of his wife will not be forwarded by Nej Gram Panchayat. Therefore, PW3 had approached Lokayukta Police to achieve this purpose.
16. The evidence adduced by prosecution that accused was trapped near Bedkihal circle at 7.20 p.m. on 03.10.2002, within public vision looks highly improbable for following reasons:-
The members of raiding party, including PW3 were not sure about accused reaching Bedkihal circle at the relevant 14 point of time. The raiding party having found that accused was not available in the office of Gram Panchayat at Nej did not return to the office of Lokayukta Police at Belgaum. On the other hand, they proceeded to Bedkihal circle with pre-
determination to trap accused under all circumstances. The raiding party never wanted to return back with empty hands, as they had travelled a distance of 80 kilometres from Belgaum. The evidence of PW3 and other members of raiding party that accused immediately after alighting from bus demanded bribe from PW3 looks highly improbable. The independent witnesses who were present near the place of alleged trap, including the owner of Punam Hotel, wherein alleged demand and acceptance of bribe had taken place were not cited as witnesses nor they were examined before trial court.
17. The learned Special Judge on critical analysis of evidence has held that prosecution has failed to prove that PW3 had no reasons to believe that accused was in a position to show any official favour to him. PW3 being not 15 eligible for allotment of a house under Ashraya scheme had adopted dubious way and had filed an application in the name of his wife for allotment of a house under Ashraya scheme. PW3 having failed to persuade accused to consider the application filed by him in the name of his wife, for allotment of a house under Ashraya scheme, had approached Lokayukta police to achieve the same under the impression that by such means he would be able to get a house allotted under Ashraya scheme. The Police Inspector and the members of raiding party have shown immense enthusiasm in trapping accused under all circumstances, without ensuring that accused in fact had demanded bribe from PW3. The Investigating officer had not even ensured that PW3 had submitted an application and application was pending with accused.
18. Thus, on re-appreciation of evidence, I find evidence of PW3, members of raiding party and the Investigating Officer (PW6) that accused demanded and received bribe of Rs.3,000/- (tainted currency notes) from PW3, counted 16 currency notes in Punam Hotel within public vision and again placed tainted currency notes on the table, from where they were seized by Investigating Officer looks improbable.
19. On re-appreciation of evidence, I do not find any reasons to interfere with the impugned judgment of acquittal.
20. In the result, I pass the following:-
ORDER The appeal is dismissed.
SD/-
JUDGE SNN