Karnataka High Court
Sri. Roopla Nayak S/O L. Nemya Nayak vs The State Of Karnataka on 16 June, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL APPEAL NO.200121/2015
Between:
Sri Roopla Nayak S/o L. Nemya Nayak,
Age: 52 Years, Occ: Accounts Officer,
GESCOM Divisional Office, Sindhanur,
R/o Vyasapur Tanda,
Tq. Agaribommahalli, Dist. Bellary
... Appellant
(By Sri Anilkumar Navadagi, Advocate for
Sri Shivanand Pattanashetti, Advocate)
And:
The State of Karnataka
Represented by SPP
High Court of Karnataka, Kalaburagi.
(Through PSI of Lokayukta P.S.
Raichur)
... Respondent
(By Sri Subhash Mallapur, Spl. PP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to admit this appeal, call for the records
from the Court below and set aside the judgment of
conviction and order of sentence dated 18.11.2015 passed
by II-Additional District and Sessions Judge, Raichur, in
Special Case No.10/2013 and acquit the
appellant/accused.
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This appeal coming on for Hearing, this day, the
Court delivered the following:
JUDGMENT
The accused being the appellant is before this Court challenging the impugned judgment of conviction and order of sentence dated 18.11.2015 passed in Special Case No.10/2013 on the file of the learned II-Additional District and Sessions Judge, Raichur, (hereinafter referred to as 'Trial Court') convicting the accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and sentencing him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.15,000/- for the offence punishable under Section 7 of the PC Act and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.15,000/- for the offence punishable under Section 13(1)(d) of the PC Act, with default sentence.
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2. The appellant-accused is charged for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of PC Act, on the basis of the FIR lodged by informant-Sri Mahiboob S/o Rajmohammed and the trap was held in Crime No.8/2012 of Raichur Lokayutka Police Station.
3. Brief facts of the case are that, the informant- S.Mahiboob S/o Rajmohammed lodged first information as per Ex.P1 with Lokayukta Police, Raichur, alleging that he was working as Junior Engineer in the Divisional Office GESCOM, Sindhanur and he had applied for surrendering earned leave and encashment of the same during September 2012. The accused was working as Accounts Officer in the said division and he had not processed the said application, but was demanding bribe of Rs.5,000/-. On 17.12.2012, the informant had called the accused over his phone and enquired about his application. He asked him to come on the next day. When the informant bargained saying that he is not in a position to pay 4 Rs.5,000/- and offered to pay either Rs.2,000/- or Rs.3,000/-, the accused agreed for the same and asked him to come on the next day. The informant lodged first information with the Lokayukta Police, as he was not willing to give bribe amount. He has produced Rs.3,000/- that is to be tendered to the accused. Accordingly, FIR in Crime No.8/2012 was registered and entrustment panchanama was drawn in the presence of two witnesses. It is stated that the informant along with shadow witness visited the office of the accused and the accused had again demanded for Rs.3,000/-. When the informant tendered tainted money entrusted to him, the accused gave an envelope and asked him to keep the currency notes in it. Accordingly, the informant kept tainted money in the envelope and gave to the accused. Inturn, the accused kept it in his table drawer. When the informant was coming out of his chamber, the accused took out envelope and counted the currency notes and again kept it in the drawer. The shadow witness was witnessing all these developments through window. The informant gave signal 5 to the Investigating Officer by wiping his face with kerchief. Immediately, the Investigating Officer along with co-panch came to the office of the accused, introduced himself to the accused and his hand wash was taken which turned into pink colour suggesting that the accused had accepted tainted money. The accused had given his explanation in his own handwriting stating that the informant had given an envelope and the accused had kept in the drawer. The informant kept Rs.3,000/- in the envelope. The accused further stated that the Investigating Officer asked the accused to open envelope and accordingly, he handed over it to the Investigating Officer. It is stated that the file relating to the informant was with the office assistant of the accused and he produced the same. As per the records, Assistant Accounts Officer had already signed the application for sanction of leave encashment, but the accused had not signed the said application. The service records were collected through Junior Engineer and a trap mahazar was drawn. It is stated that the accused who was working as 6 public servant demanded and accepted illegal gratification of Rs.3,000/- to show official favour to the first informant i.e., to sanction the leave encashment benefit, as the application was pending with him. Thereby, he has demanded and accepted illegal gratification and committed criminal misconduct.
4. After filing of the charge sheet, with sanction order obtained to prosecute the accused, the learned Sessions Judge took cognizance of the offences and summoned the accused. The accused appeared before the Court and pleaded not guilty for the charges leveled against him. The prosecution examined PWs.1 to 10, got marked Exs.P1 to P34 and identified M.Os.1 to 9 in support of its case. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., and also given his written version. However, he has not stepped into the witness box to depose about his defence. The Trial Court after taking into consideration all these materials on record, came to 7 the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, the accused was convicted and sentenced for the above said offences.
5. Being aggrieved by the same, the accused is before this Court seeking to set aside the impugned judgment of conviction and order of sentence passed by the Trial Court and to acquit him.
6. Heard Sri Anilkumar Navadagi, learned counsel for Sri Shivanand V. Pattanashetti, learned counsel for the appellant and Sri Subhash Mallapur, learned Special Public Prosecutor for the respondent-Lokayukta.
7. Learned counsel for the appellant submitted that the accused was working as Accounts Officer and he was a public servant. The informant was also working as Junior Engineer at GESCOM i.e., in the same division. Even though the prosecution has laid voluminous evidence, it has not proved the demand and acceptance. It has also 8 not proved that the official work was pending with the accused. It is only a motivated trap, which was stage managed by the informant. The learned counsel submitted that the application for leave encashment was submitted to the Assistant Executive Engineer on 25.09.2012 as per Ex.P22. This application was submitted asking to encash the leave for the period from 01.10.2012 to 29.11.2012. But, there was delay in submitting the application. The said file was not with the accused, as the same was not sanctioned by the Executive Engineer. He further submitted that even though the informant contended that there was demand and acceptance, shadow witness who is examined as PW.4 has not supported the case of prosecution. It is only interested version of PW.1 regarding demand and acceptance against the accused. Even as per the informant, he had kept tainted money in a cover and kept it in the drawer. If that version is to be believed, there was no occasion for the accused to touch the tainted money and therefore the hand wash of the accused could not have been turned into pink colour to have the traces of 9 phenolphthalein powder. Therefore, it is clear that it is a stage managed trap. He further submitted that PW.1 categorically stated that when he went to the office of the accused, he was not there, but had gone for lunch. Taking advantage of the said situation, PW.1 himself had kept tainted money in a cover inside the drawer. The accused has explained these situations in his written version after recording his statement under Section 313 of Cr.P.C. When the prosecution failed to prove the pendency of official work with the accused, demand and acceptance of illegal gratification, the Trial Court could not have convicted the accused. Therefore, the impugned judgment of conviction and order of sentence passed by the Trial Court is perverse, illegal and without any basis. Hence, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the Trial Court in the interest of justice and to acquit the accused.
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8. Per contra, learned Special Public Prosecutor opposing the submission made by the learned counsel for the appellant submitted that the appellant was admittedly working as Accounts Officer in the division where the informant was also working as Junior Engineer. Admittedly, an application for surrendering of leave and its encashment was filed during September, 2012. The first information was lodged on 18.12.2012, till then the accused who was the Accounts Officer had not processed the application nor he had signed the document. At the time of trap, concerned application was with the Office Assistant of the accused which is marked as Ex.P22 which clearly discloses that the application was submitted with Executive Engineer on 25.09.2012 and the Assistant Accounts Officer had already signed the document recommending for sanction. However, the said application was never placed before the Sanctioning Authority by the accused nor he had signed the same. Therefore, it is a clear case of keeping the application pending by the accused without any explanation. The accused has given 11 his explanation as per Ex.P26 wherein he has stated that PW.1 had given Rs.3,000/- by keeping it in an envelope. Apart from that, he had no other explanation. Therefore, the accused categorically admitted acceptance of illegal gratification in his explanation tendered at the initial point of time.
9. The learned counsel further submitted that the informant who is examined as PW.1 fully supported the case of prosecution. He withstood the lengthy cross- examination by the learned counsel for the accused. PW.5 is the Assistant Accounts Officer who signed Ex.P22-the application submitted by the accused and stated that the file was pending with the accused. There is absolutely no reason as to why his evidence is to be disbelieved. Moreover, Ex.P22 was seized from the Office Assistant of the accused which was never disputed. There is absolutely no reason assigned by the accused as to why the application was kept pending. He further submitted that regarding demand and acceptance, the evidence of PW.1 is 12 very much convincing. Even though the shadow witness turned hostile for the reasons best known to him, he specifically stated that the informant had gone and met the accused and he told that he had paid tainted money to the accused. The witness also stated that money in question was lying in an envelope in the table drawer of the accused. Therefore, prosecution has discharged its initial burden of proving demand and acceptance of illegal gratification in respect of pending work of the informant with him. Therefore, presumption under Section 20 of the Act would arise in favour of the prosecution and it is for the accused to rebut the said presumption.
10. Learned counsel further submitted that during the course of cross-examination, the accused has not taken any defence worth mentioning and he has denied all the incriminating materials available on record. But, he has filed detailed written version which is not supported by either Ex.P26 or by the tenor of cross-examination of prosecution witnesses. The accused has not stepped into 13 the witness box for the reasons best known to him. Therefore, adverse inference will have to be drawn against him. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. There is no reason to interfere with the impugned judgment. Hence, he prays for dismissal of the appeal.
11. Perused the materials on record including the Trial Court Records. Considering the rival contentions of the parties, the following point would arise for my consideration:
"Whether the appellant has made out a ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court? What order?"
My answer to the above point is in 'Negative' for the following:
REASONS
12. It is the specific contention of the prosecution that the accused was a public servant. The informant had 14 filed an application for encashment of his earned leave. The said application was pending with the accused and to attend the same, he demanded Rs.3,000/-. When the informant tendered tainted money of Rs.3,000/- on demand by the accused, the accused gave an envelope and asked the informant to keep the money in it. Accordingly, the informant kept the money in the envelope and handed over to the accused. Inturn, the accused kept it in his table drawer. However, when the informant was coming out of his office, the accused opened the cover, took out the currency notes, counted it and kept it as it is. On receiving the signal from the informant, the Investigating Officer along with co-panchas came and trapped the accused.
13. It is not in dispute that the accused is a public servant and the informant is also a Junior Engineer working in the same division i.e., GESCOM. It is also not in dispute that the informant had submitted an application for leave encashment. The accused is disputing that the 15 said application was pending with him and that he demanded and accepted the illegal gratification.
14. To prove that the application was pending with the accused, the prosecution has examined the informant himself as PW.1. This witness categorically stated that he had submitted an application which was pending with the accused who had not placed it for sanction nor signed the same. PW.5 is the Assistant Accounts Officer who also supports this contention. The Investigating Officer stated that when the accused was asked to produce the application relating to the informant, he stated that the same is with the Assistant-Kariyappa. Accordingly, Kariyappa produced the same. The said application is as per Ex.P22.
15. As per Ex.P22, the informant had submitted an application surrendering his leave for the period from 01.10.2012 to 29.11.2012. The Assistant Executive Engineer has endorsed receipt of the application on 25.09.2012. This application also discloses that the 16 application was attended to and the Assistant Accounts Officer i.e., PW.5 had signed the same recommending for sanction of the encashment of the earned leave. However, signature of the sanctioning officer and of the Accounts Officer i.e., accused is pending on the application.
16. PW.5 in his evidence stated that leave surrender application was pending before the accused. During the course of cross-examination by the learned counsel for the accused, it is elicited that the Executive Engineer was on leave and therefore, application was submitted to the Assistant Executive Engineer and that the sanctioning authority i.e., Executive Engineer will only endorse on the leave surrender application and rest of the work was required to be done by the accused. The accused being the Accounts Officer he was required to issue the cheque.
17. Regarding demand and acceptance of illegal gratification, PW.1 has deposed in detail and also stated that the accused himself gave an envelope and asked to 17 keep the money in it and accordingly, he kept it in the envelope and given it to the accused. While coming back, the accused again took out the envelope and counted money and kept it as it is. Thereafter, he gave signal to the police. It is suggested to the witness during the course of cross-examination that when the accused had gone out for lunch, he kept the money in the envelope and placed in the drawer. The said suggestion was denied by PW.1. Version of PW.1 that the accused had himself given the envelope asking him to keep money inside and the accused had removed the envelope and counted the money while he was going back was never controverted during the course of cross-examination. PW.1 categorically stated that the shadow witness, PW.4 had accompanied him and he was standing outside peeping into the window. Even though the witness was subjected to cross-examination, nothing has been elicited from him to disbelieve his version.
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18. PW.4 is the shadow witness who has not supported the case of the prosecution to the extent of demand and acceptance. Even though the learned Prosecutor cross-examined the witness at length, nothing has been elicited from him. Now the question is as to whether the evidence regarding demand and acceptance is to be disbelieved only on the ground that the shadow witness has not supported the case of prosecution.
19. When there are materials placed before the Court to show that the application Ex.P22 was pending with the accused, the tainted money of Rs.3,000/- was found in the drawer of the accused and when the hand wash of the accused turned pink colour suggesting presence of phenolphthalein powder, the evidence of PW.1 with regard to demand and acceptance will have to be accepted. Corroboration of evidence of the informant is not the requirement of law. If the evidence of a witness is not convincing, the Court may look for corroboration. The success of the case of the prosecution cannot be at the 19 mercy of the shadow witness. The prosecution can prove its contention independently. In the present case, evidence of PW.1 is supported by Ex.P22, entrustment panchanama, trap panchanama and the evidence of PW.8- Investigating Officer. PW.5 has also supported the case of the prosecution who is none other than Assistant Accounts Officer working under the accused, regarding pendency of work. Under such circumstances, I do not find any reasons to discard the evidence of PW.1 and to extend the benefit of doubt to the accused. When the prosecution is successful in proving demand and acceptance of illegal gratification, recovery of tainted money from the accused and also pendency of official work with the accused, presumption under Section 20 of the Act arises in favour of the prosecution and against the accused. It is for the accused to rebut the said presumption by probabilizing his defence.
20. Immediately, after a trap, the Investigating Officer got explanation of the accused regarding 20 possession of the tainted money, as per Ex.P26. This explanation is in his handwriting. This fact is not denied by the accused. As per Ex.P26, the accused has stated at the earliest point of time that the informant-S. Mahiboob came and kept an envelope with Rs.3,000/- in his table drawer even though he had not demanded any money. He further stated that when the Investigating Officer came and the envelope was opened, amount of Rs.3,000/- was found inside.
21. It is interesting to note that the accused has filed a detailed version in writing after recording of his statement under Section 313 of Cr.P.C., which reads as under:
"The accused submits his further Statement U/s.313 Cr.P.C. as follows:
1. That, at the relevant time the Accused was working as Accounts Officer in the Divn. Office, GESCOM, Sindhanur. The complainant J.E. working at that time in Divn. Office, Sindhanur submitted his application before Asst. Ex. Engn. in GESCOM Divn. Office, 21 Sindhanur. As per rules and regulations such application seeking surrender leave salary shall be submitted before Ex. Engineer, GESCOM. This accused did not received the application of complainant for surrender leave salary. With all this the complainant pressed this accused to take that application and to do his work. The accused refused for the same. Apart from that all was not well between accused and complainant in official work. Due to such strained relations the accused has filed the false complaint by falsely pinning down this accused for the fictitious offences.
2. That, in fact this accused neither demanded nor accepted any bribe money from the complainant. During lunch hours on the alleged date of trap the accused had gone for lunch and in his absence it appears complainant has placed the tainted money in putting in cover in drawyer of table of accused. When accused came back to office at 3 p.m. the complainant and police came inside of room and asked the accused to remove the cover in the drawyer of table. The Lokayuktha police commanded the accused to remove the bribe money from cover and count it.
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Accordingly the accused did it. The said events clearly suggests that the accused is innocent and complainant not having any work with accused and the accused neither demanded nor received the tainted money.
3. That, the accused secured relevant documents from his superiors regarding the case in question and submitting the same with separate list with this statement.
Hence, it is most humbly prayed that, the Hon'ble Court be pleased to receive this further statement of accused U/S. 313 Cr.P.C. and to consider the documents filed under list at the time of recording evidence, to secure the ends of justice."
22. None of these defences were taken by the accused at the earliest point of time while giving explanation as per Ex.P26. If the accused had not at all received application in question seeking surrender of leave, if the informant had pressurized the accused to do the job and there was strained relationship between the two, 23 definitely, the accused could have stated so in his written explanation.
23. It is also pertinent to note that the accused has taken a specific defence that when he had gone for lunch, the informant deliberately placed the tainted money in a cover in the table drawer of the accused and thus, tainted money was found in his table drawer. This was not stated by the accused in Ex.P26. If at all the informant had kept the envelope in the table drawer of the accused when the accused was away for lunch, he could have atleast stated that he was not aware of such an envelope which was found in his table drawer. But, on the other hand, in Ex.P26 as stated earlier, he specifically stated that the informant came with an envelope with Rs.3,000/- and gave it to him which was kept in the table drawer. This explanation would not have been possible if the defence taken by the accused at the later point of time was true. The accused is a public servant and he knew that he was trapped by Lokayukta police. Therefore, when his 24 explanation was sought by the Investigating Officer, he could have easily stated that he had never received the application submitted by the informant or that he is having strained relationship with the informant. There is absolutely no explanation as to why such a defence was not taken at the earliest point of time. It is also pertinent to note that the accused had not stepped into the witness box to speak about his defence. If the accused examined himself as witness, the prosecution would have got an opportunity to cross-examine him about the defence he has taken at the later point of time. Deliberately, such an opportunity was denied by not stepping into the witness box and simply filing written version as stated above. If the application for sanction of the leave surrender benefit was not at all pending with the accused, the informant pressurizing the accused to attend his application would not have arisen.
24. It is to be noted at this stage that even though a very specific defence was raised by filing written version 25 after recording his statement under Section 313 of Cr.P.C., tenor of cross-examination of various prosecution witnesses in general and informant-PW.1, Accounts Officer-PW.5 and PW.8-Investigating Officer in particular is not in accordance with such an explanation. The entire cross-examination of these witnesses never makes out such a defence. No ill-will or motive suggested to PW.5 who is the Assistant Accounts Officer working under the accused who has categorically stated that the application in question was pending with the accused, which he has already signed. Under such circumstances, PWs.1, 5 and 8 have no reason to depose against the accused without any basis.
25. In view of the discussions made above, it is clear that even though the prosecution is successful in proving the guilt of the accused, the accused has failed to rebut presumption under Section 20 of PC Act. The defence taken by the accused is not consistent from the beginning and there is improvement in such defence, 26 which is not explained by the accused. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accused is liable to be convicted.
26. I have gone through the impugned judgment of conviction and order of sentenced passed by the Trial Court. It has taken into consideration the materials on record and appreciated it in a proper perspective. The accused has not made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court. Therefore, I do not find any reason to interfere with the same.
27. Hence, my answer to the above point is in 'Negative' and I proceed to pass the following:
ORDER Criminal Appeal is dismissed.
Sd/-
JUDGE NB*