Karnataka High Court
The State Of Karnataka vs Ramesh Appanna Mareppagol on 22 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 1215
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.2818/2011 (A)
BETWEEN:
THE STATE OF KARNATAKA,
BY LOKAYUKTA POLICE,
BELGAUM
...APPELLANT
(BY SRI G.I.GACHCHINAMATH, SPECIAL PUBLIC ROSECUTOR)
AND:
RAMESH APPANNA MAREPPAGOL,
FIRST DIVISION ASSISTANT,
K.G.ID. OFFICE, GADAG.
...RESPONDENT
(BY SRI A.L.SANDRIMANI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE
LEARNED DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE,
BELAGAVI IN SPECIAL C. (LOKAYUKTA) NO.80/2007 BY
ALLOWING THE PRESENT APPEAL; CONVICT AND SENTENCE
THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 7, 13(1)(D) READ WITH
SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT,
1988.
THIS CRIMINAL APPEAL HEARD ON 15.06.2021 AND
RESERVED FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
2
Crl.A.No.2818/2011
JUDGMENT
The State of Karnataka represented by Lokayukta Police, Belagavi preferred this appeal aggrieved by the impugned judgment of acquittal dated 07.02.2011 passed in Special Case No.80/2007 on the file of learned IV Additional District Judge and Special Judge, Belagavi (for short 'the Trial Court') acquitting the respondent/accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C. Act' for the sake of brevity).
2. Brief facts of the case of prosecution are that, the informant-Jagadish Tigadi lodged the first information with Lokayukta Police, Belagavi on 01.12.2006 against the accused stating that the informant's father-Sri Rajashekhar Tigadi was working as Typist in the Office of the Superintendent of Police, Belagavi, who died on 12.08.2006. He was having three K.G.I.D. policies. The mother of the informant-Smt.Mahadevi Tigadi applied for settlement of all the policies by submitting the application 3 Crl.A.No.2818/2011 through the informant. The accused being the case worker in the K.G.I.D. Office at Belagavi had not attended her application. Informant met him on 30.11.2006, he informed the informant that work cannot be done if he simply meets him and demanded for Rs.4,000/- for settlement of those three K.G.I.D. policies and to issue the cheque in favour of the applicant-Smt Mahadevi Tigadi. The informant came back and lodged the first information with the Lokayukta Police on 01.12.2006 requesting to initiate action against the accused, who demanded the illegal gratification for discharge of his official duty. The first information was registered by Lokayukta Police in Crime No.16/2006 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act.
3. It is stated that the entrustment mahazar was conducted in the presence of two panchas and a sum of Rs.4,000/- was entrusted to the informant with a direction to meet the accused along with the shadow witness. Accordingly, the informant met the accused along with shadow witness and enquired as to whether the application 4 Crl.A.No.2818/2011 is attended or not? It is stated that the accused again demanded the illegal gratification of Rs.4,000/-. When the informant bargained with him, he agreed to receive Rs.3,500/- and received the currency notices which were entrusted under the entrustment panchanama. Thereafter, it is stated that the accused was trapped by Lokayukta Police in the presence of shadow witness and second pancha. His hands were washed in the sodium carbonate solution and both the hand wash turned into the pink colour and proved the presence of the phenolphthalein powder in it. The currency notes were recovered from the accused the same were entrusted to the informant during entrustment panchanama. It is stated that the accused has given his explanation for possessing the currency notes in question. A trap panchanama was drawn at the spot and after completing the investigation, the charge sheet was filed against the accused for the above said offences.
4. The Learned Special Judge took cognizance of the offences and the accused was summoned. The accused 5 Crl.A.No.2818/2011 pleaded not guilty for the charges leveled against him. He claimed to be tried for the charges.
5. The prosecution examined P.Ws.1 to 8, got marked Exs.P.1 to 24 and identified M.Os.1 to 10 in support of its contention. The accused denied all the incriminating materials available on record. But in his statement recorded under Section 313 of Cr.P.C. has not chosen to lead any defence evidence in support of his contentions. The Trial Court after taking into consideration these materials on record came to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and accordingly, accused was found not guilty for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of P.C.Act and acquitted him. Aggrieved by the said Judgment of acquittal passed by the Trial Court, State-Lokayukta Police, Belagavi is before this Court.
6. Heard Sri G.I.Gachchinamath, learned counsel for appellant-State-represented by Lokayukta Police and Sri A.L.Sandimani, learned counsel for the respondent/ accused.
6Crl.A.No.2818/2011
7. Learned counsel for the appellant has contended that admittedly the accused was a public servant working as a caseworker in K.G.I.D. Office at Belagavi. He was entrusted with the case file and even during trap the case file was in the custody of accused. P.W.1 is the informant and P.Ws.3 is the shadow witness. Both these witnesses have deposed before the Court regarding demand and acceptance of the illegal gratification by the accused. The explanation given by the accused as per Ex.P.15 at the time of trap discloses that he had admitted the receipt of the amount from the informant. But his contention is that the amount was paid forcibly by the informant cannot be accepted. Nothing has been elicited from either P.W.1 or P.W.3 to contradict the version of the prosecution. He submitted that after several years the witnesses have deposed before the Court, there is minor contradictions/ variances in the evidence of these witnesses, which cannot be made much of to discard the evidence of these witnesses. Learned counsel further submitted that the accused has taken contradictory defence in his statement recorded under Section 313 of Cr.P.C. The tenor of cross- 7 Crl.A.No.2818/2011 examination of the material witnesses goes to show that the accused is taking contradictory stand at each stage. The accused has not chosen to examine himself to speak about the incident.
8. Learned counsel further submitted that when the prosecution is successful in proving the guilt of the accused, the presumption under Section 20 of the P.C.Act arises and it is for the accused to rebut the presumption. The accused has failed to rebut the presumption by leading his evidence. Under such circumstances, the accused should have been convicted for the above said offences. The trial court committed an error in acquitting the accused by extending the benefit of doubt. Therefore, he prays for allowing the appeal and set aside the impugned Judgment of acquittal and to convict the accused for the above said offences.
9. Per Contra, the learned counsel for the respondent-accused contended that even though the prosecution contended that the accused had demanded and accepted the illegal gratification, the same has not been 8 Crl.A.No.2818/2011 proved by the prosecution. Except the interested version of P.W.1 informant, there is absolutely no evidence to prove the demand of illegal gratification by the accused. The version of the informant regarding demand and acceptance of the illegal gratification is quit contradictory at each stage. P.W.3-shadow witness has not supported the prosecution with regard to demand and acceptance by the accused. Under such circumstances, the trial Court was right in acquitting the accused by extending the benefit of doubt. Hence, he prays for dismissal of the appeal as devoid of merits.
10. In view of the rival contentions and on perusal of the materials including the Trial Court records, the point that would arise for my consideration is, "Whether the impugned Judgment of acquittal dated 07.02.2011 passed in Special Case No.80/2007 on the file of learned IV Additional District Judge and Special Judge, Belagavi calls for interference by this Court?"
My answer to the above point is in 'negative' for the following:9 Crl.A.No.2818/2011
REASONS
11. It is the contention of the prosecution that the accused being the public servant working as a caseworker in the office of K.G.I.D. at Belagavi demanded and accepted illegal gratification of Rs.3,500/- from the informant to discharge his official functions of settling the K.G.I.D. policies infavour of the applicant who is the mother of informant, thereby he has committed the misconduct punishable under Sections 7 and 13(1)(d) read with Section 13 (2) of the P.C.Act.
12. To prove this contention, the prosecution examined the informant as P.W.1. Informant specifically stated in the first information which is as per Ex.P.1 that when he met the accused on 30.11.2006 and requested him to attend to application, he had demanded Rs.4,000/- as illegal gratification and therefore, he lodged the complaint on the next day i.e., on 01.12.2006. The informant as P.W.1 reiterated this contention regarding the demand for Rs.4,000/- by the accused on 30.11.2006 and filing of the first information on the next date as per Ex.P.1. 10 Crl.A.No.2818/2011 However, during cross-examination, he stated that the accused had demanded the bribe amount about 5 or 6 days prior to the date on which he was taken to the District K.G.I.D. Office. Witness further states that on the previous day of filing of the complaint he was taken to the District K.G.I.D. Office by the accused stating that file relating to the applicant was already with the said Officer and the accused has already made necessary endorsements. Witness admits that the District K.G.I.D. Officer has assured for attending to his file on the previous day of filing the complaint.
13. As per the trap panchanama marked as Ex.P.10 and even as per the chief-examination of the P.W.1, the accused had demanded and accepted the illegal gratification in his office where he was sitting on his chair. But however during cross-examination this witness categorically states that the accused has received the bribe amount in the varrandha of the office, which was seen by the other staff members who were working there. Witness specifically stated that he had not stated in the first 11 Crl.A.No.2818/2011 information that the accused had received the bribe amount in the varrandha of the office. This witness further stated during cross-examination that as per page No.52 of Ex.P.9 i.e., the case file said to have maintained by the accused, the accused had already made endorsement, approving the payment of the policy amounts and he had forwarded the same to his superior officer on 16.01.2006 itself. It is only thereafter the informant was taken to the District K.G.I.D. Officer by the accused to draw the attention of the said officer regarding the endorsements made by the accused. P.W.1 categorically admitted that the entire file pertaining to the payment of policy amount of his father was with District K.G.I.D. officer and he had assured that the work will be done shortly, even before all these developments the accused had demanded for bribe amount i.e., about 5 to 6 days prior to the date on which he was taken to the District K.G.I.D. Officer. It is pertinent to note that no such details are found in the first information, nor the informant has stated so in his chief-examination. It is true that the first information filed by the complainant is not an encyclopedia to have all the details relating to the incident 12 Crl.A.No.2818/2011 in question. However, when the first information discloses that the accused demanded illegal gratification from the complainant on 30.11.2006, immediately on the next date i.e., on 01.12.2006 the first information as per Ex.P.1 was came to be lodged and similar is the evidence of P.W.1 in his chief examination, he has given a goby to this contention and admitted that the accused had made necessary endorsement in the case file for payment of the policy amounts and had forwarded the same to the District K.G.I.D. Officer and he had also taken the informant to the said Officer on the previous day of the filing of first information, upon which, the District K.G.I.D. Officer had stated that he will do the needful in the matter.
14. The prosecution examined the shadow witness as P.W.3. This witness has not fully supported the case of prosecution and he was treated partially hostile. However, witness states that he had not accompanied P.W.1, while he met the accused in his office. On the other hand, he states that he was with Lokayukta Inspector and the 2nd pancha was also with him, when the complainant went 13 Crl.A.No.2818/2011 inside the K.G.I.D. Office and met the accused in the 2nd floor of the building. It is only after the complainant showing the signal, he along with the Lokayukta Inspector and others went to the 2nd floor and thereafter trapped the accused.
15. This witness was cross-examined by the learned Public Prosecutor and suggested that he accompanied the complainant while meeting the accused and the accused had demanded and accepted the illegal gratification. These suggestions were categorically denied by the witness. Nothing has been elicited from this witness to probabolize the fact that he had accompanied the complainant when the accused demanded and accepted the illegal gratification. Therefore, the fact of demand and acceptance of the illegal gratification as contended by the prosecution is not proved either by the evidence of P.W.1 or by P.W.3.
16. We have two different versions regarding demand and acceptance of the illegal gratification.
17. The Hon'ble Supreme Court in the case of V. Sejappa v. State by Police Inspector Lokayukta, 14 Crl.A.No.2818/2011 Chitradurga1 referred to various decisions on the subject rendered by it from time to time and reiterated the position of law that proof of demand is a sine qua non for seeking conviction of the accused. It is also reiterated that mere recovery of the tainted money is not sufficient to draw the presumption under Section 20 of the Act.
18. The Hon'ble Apex Court in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another2 held as under :
"20. This Court in A.Subair v. State of Kerala3, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p.593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
21. In State of Kerala v. C.P.Rao4, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any 1 AIR 2016 SC 2045 2 (2015) 10 SCC 152 3 (2009) 6 SCC 587 4 (2011) 6 SCC 450 15 Crl.A.No.2818/2011 evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj5 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.5
(2014) 13 SCC 55 16 Crl.A.No.2818/2011
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
19. These decisions make the position of law very clear that the prosecution is required to prove the demand made by the accused for illegal gratification so also the acceptance on his part.
20. To constitute an offence under Section 7 of the P.C. Act, demand for illegal gratification is sine quo non. Unless the prosecution is successful in proving the factum of demand and acceptance, it cannot be said that the charge leveled against the accused is proved. Moreover unless there is proof regarding the demand and 17 Crl.A.No.2818/2011 acceptance, the presumption under Section 20 of the P.C.Act cannot be invoked.
21. In the present case, P.W.1 being the complainant has given different versions and there are material contradictions with regard to the time and place of demand made by the accused. He contradicts himself even with regard to the place where the bribe amount was accepted by the accused. When such being the case, corroboration is a must, to seek conviction of the accused. The factum of demand and acceptance could have been corroborated by the shadow witness examined as P.W.3. But this witness has not corroborated the version of the prosecution regarding these material aspects. Under such circumstances, the accused will be entitled for the benefit of doubt.
22. Of Course, the prosecution placed sufficient materials to prove that the tainted money smeared with phenolphthalein powder was recovered from the accused during the trap panchanam. The accused given his explanation as per Ex.P.15 that the currency notes were 18 Crl.A.No.2818/2011 thrust into his pocked by the complainant even though he had not demanded for the same. It is pertinent to note that the accused has given a goby to this explanation and stated that he was not in a possession of the file as on the date of incident. On the other hand, he had handed over the file to his higher officer on 16.01.2006 itself and therefore, no work was pending with him. This explanation given by the accused is not the explanation that was given by him on the date of incident. However, giving false explanation by the accused will not lead to the proof of the contention of the prosecution. If at all the prosecution was successful in proving the demand and acceptance on the part of the accused, definitely conduct of the accused in taking different defences at different stages could have been considered.
23. It is seen that during cross-examination of P.W.1, learned counsel for the accused made several fatal suggestions to the witness. Even these suggestions suggested by the learned counsel for the accused will not enure to the benefit of the prosecution when it has failed to 19 Crl.A.No.2818/2011 prove its contention. Therefore, I am of the opinion that the prosecution has failed to prove the primary ingredients of demand and acceptance of illegal gratification by the accused by leading cogent and convincing evidence before the Court. Under such circumstances, the benefit of doubt is to be extended to the accused.
24. I have gone through the impugned Judgment of acquittal passed by the Trial Court, it has taken into consideration these materials on record and came to the conclusion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt and thereby acquitted the accused. I do not find any reason to interfere with the same. Accordingly, I answer the above point in the negative. Criminal Appeal is dismissed as devoid of merits.
Sd/-
JUDGE ckk