Karnataka High Court
G B Jagadeesh vs State Of Karnataka on 5 February, 2020
Author: K.Somashekar
Bench: K. Somashekar
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 384 OF 2011
BETWEEN
G B JAGADEESH
S/O BISTAPPA
EDUCATIONAL CO-ORDINATOR
(HIGH SCHOOL CADRE)
B.E.O. OFFICE, MAYAKONDA CENTRE
SOUTHERN RANGE
DAVANAGERE.
... APPELLANT
(BY SRI S. S. KOTI- ADVOCATE FOR
SRI VINAYAKA S. KOTI-ADVOCATE)
AND
STATE OF KARNATAKA
REP. BY S.P.P BY LOKAYUKTA POLICE
DAVANAGERE.
... RESPONDENT
(BY SRI. B. S. PRASAD - SPL.P.P.)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF THE
CR.P.C PRAYING TO, SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 24.3.2011 PASSED
BY THE SPL. JUDGE, DAVANAGERE IN SPL. C.
(LOKAYUKTHA) NO.9/2007 - CONVICTING THE
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APPELLANT / ACCUSED FOR THE OFFENCE P/U/S 7,
13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION
ACT, 1988 AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in Spl.C.(Lokayukta) 9/2007 dated 24.03.2011 convicting the accused for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short the 'P.C.Act').
2. The accused was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- for the offence punishable under section 7 of the P.C.Act and further, the accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- for the offence punishable under Section 13(1)(d) r/w 13(2) of the P.C.Act. 3
3. The factual matrix of the appeal is that the accused is said to be a public servant working as Educational Co- ordinator (High School Cadre), B.E.O office, Mayakonda Centre, Southern Range, Davanagere. It is alleged that on 16.03.2007, he demanded an amount of Rs.2,000/- as illegal gratification as a motive or reward from the complainant - M.Sreenivasamurthy, to show an official favour to close the misappropriation case against him. On 7.4.2007 in between 3.20 p.m. and 4.00 p.m., in his office the accused accepted the said amount of Rs.2,000/- as illegal gratification as a motive/reward from the complainant to show the said official favour. The accused being public servant having demanded and accepted a sum of Rs.2,000/- to close the misappropriation case against the complainant, by showing an official favour by corrupt or illegal means from CW.1, has committed misconduct in discharge of his official duty, thereby committing offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C.Act.
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4. In pursuance of the act of the accused on filing of complaint by the complainant before the Police Inspector of Lokayukta, Davanagere, the case in Cr.No.3/2007 came to be registered against the accused for the aforesaid offences. Subsequent to registration of crime against the accused, PW.13 being the IO of the Lokayukta Police thoroughly investigated the case. During the course of investigation he conducted pre-trap mahazar as per Ex.P2 and also trap mahazar as per Ex.P16 and thereafter, laid the charge sheet against the accused before the Special Court. The trial Court framed charges against the accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the P.C.Act whereby, the accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused was recorded.
5. Subsequently, the prosecution in order to establish its case, in all examined PWs.1 to 13 and got marked Exs.P1 to P44 and MOs.1 to 9. After the closure of the 5 evidence of prosecution, the accused was examined as required under Section 313 of Cr.P.C for enabling incriminating statement appeared against him whereby the accused declined the truth of the evidence of prosecution witnesses adduced so far. Subsequently, the accused did not come forward to adduce any evidence as contemplated under Section 233 of Cr.P.C. but documents as per Exs.D1 to D5 were got marked.
6. The trial Court after hearing arguments advanced on behalf of the prosecution and the defence counsel and on appreciation of material evidence available on record, rendered the impugned judgment convicting the accused for the aforesaid offences. It is this judgment which is challenged under this appeal by urging various grounds.
7. Heard Sri S.S.Koti, learned counsel for the appellant and Sri B.S.Prasad, learned Spl.PP for the respondent - Lokayukta and perused the entire records. 6
8. Learned counsel for the appellant contends that the trial Court has misdirected and erred in not considering the evidence brought on record and thereby committed error in coming to wrong conclusion convicting the appellant/accused which has resulted in gross failure of justice. It is further contended that the trial Court has failed to appreciate the material evidence available on record. PW.1 who is said to be complainant is not only a man of questionable character but he used to put his colleagues and known persons into trouble by foisting false complaints. Without noticing this aspect, the trial Court arrived at an erroneous finding by believing the version of prosecution and convicted the accused for the aforesaid offences, which is unsustainable in law.
9. It is the further contention of the appellant that the question of demand, either on the day of filing of complaint on 5.7.2007 or demanding the bribe amount on 16.3.2007 from the complainant does not arise, since no allegations 7 were made to show that any favour was required to be extended by the accused to the complainant, because no work of the complainant was pending and in the absence of any such work, false complaint has been filed on the ground that the accused has demanded money. Merely because the money is recovered, in favour to do any official work, which was not pending, has not been properly taken into consideration by the trial Court.
10. Further, it is contended that the prosecution has failed to prove the demand of money as bribe either on the date of incident i.e., on 16.3.2007 and acceptance on 7.4.2007. In this regard, the evidence of PW.1 has not been corroborated by the evidence of PW.2 and PW.5 who are the witnesses have been secured by I.O. to conduct mahazar, except the interested version and there is no independent corroboration to prove the version of the prosecution. Therefore, the trial Court has erred in convicting the accused for the aforesaid offences.
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11. It is contended that the complainant was working as a teacher in Govt. Lower Primary school in Hinndasgatta village in Davanagere taluk and was deputed to M.Bullapura Government Lower Primary school on deputation basis on 15.12.2006. The accused inspected the school on 2.1.2007 as a co-ordinator and prepared a report on 22.2.2007. The accused said to have told him that he would send the report against him regarding the misappropriation of amount and asked him to pay a sum of Rs.2,000/- as bribe for submitting report in his favour. But in the cross-examination it is elicited that one S.Mahendrappa was Head Master of M.Bullapura primary school prior to him and he has worked in that school for about three months and the inspector report was not in respect of the period of previous teacher. But he has signed on the inspection report under Ex.P19 and there is no allegation as against him in Ex.P.19. But the same do not contain any iota of allegation of misfeasance against the complainant. He was deputed on 15.12.2006 and 9 re-transferred to the original post on 30.3.2007 and as per the version of the prosecution the appellant demanded the bribe amount on 15.3.2007. But the same has not been proved by the prosecution by adducing any cogent evidence. Even on 7.4.2007 when the complaint was lodged he was not in that post because he was retransferred on 30.3.2007 itself. Hence, the evidence of PW.1 that he has not seen the report which was shown to him because the accused and the appellant were not only the friends but known to each other, as they were served in the institution as a teachers and educational co-ordinators.
12. Further, it is contended that Ex.P.19 report dated 2.1.2007 is a document which simultaneously came into existence containing the oral explanation of the appellant wherein he has requested the complainant to advance a loan amount of Rs.2,000/- in view of their earlier acquaintance and friendship and since they were working in the same place earlier. The said loan amount was 10 requested by the accused and it was sent through PW.4 - Yashodamma who is a teacher working in the near place and she has admitted the same in her evidence which corroborates with the explanation offered by the accused. But the trial Court without considering this aspect of the matter has erred in wrongly convicting the accused for the aforesaid offences.
13. Learned counsel for the appellant further contends that it is the specific case of the appellant that himself and complainant are acquainted to each other and the appellant used to take loan from the complainant now and then and used to repay the same with interest. Further, in April 2007, he had sought financial assistance by way of loan and had told that he would send the amount through Yashodamma on 5.4.2007 but he could not meet Yashodamma on that day and as such he received the amount from the complainant on 7.4.2007 by way of loan but the complainant converted the same as a bribe. It is 11 contended that the complainant has created a story that there were some lapses in the Annual report of M.Bullapura school and to overlook the said lapses the accused had demanded bribe.
14. It is further contended that though there is a presumption under Section 20 of the P.C.Act, the initial burden lies on the prosecution. PW.13 - the IO has admitted the fact that there are no allegations in the report under Ex.P19 and he has also admitted to the fact that there are no allegations as against the complainant in another report marked at Ex.P20 and it is also there in the evidence that the complainant was relieved from M.Bullapura School on 7.4.2007 and by that time, he had joined Government Higher Primary School at Hindasaghatta. Further, the complainant told the accused that he would come to Davanagere on 7.4.2007 to attend Head Master's meeting and he would bring the loan amount on that day. All these aspects has not been 12 considered by the trial Court in a proper perspective manner.
15. It is further contended that the complainant is man of complex nature and he finds pleasure in harassing others. For harassing people, the complainant was using the mobile number 9880665976. By using the same mobile number, the complainant had lodged the false complaint against the accused. The trial Court has failed to take note of the records by the defence to indicate that the complainant was suspended in connection with some of his mis-deeds and he was in a habit of changing his mobile numbers and as such his evidence cannot be accepted. Apart from that he had made a call from the above said mobile number to one Sri G.Veeraiah, Head Master and told him to be present before the Commissioner of Public Instructions, Bengaluru. Thereby, the said Veeraiah by handing over his charge to the complainant had been to Bengaluru and when he had been there, on investigation he 13 came to know that it was a false call made by the complainant. In this connection, said Veeraiah had lodged complaint against PW.1-Srinivasamurthy and the police have recorded the statements in this regard. That apart the complainant used to behave unusually and due to this the Villagers of Hindasaghatta Village had lodged a complaint against the complainant to the Block Education Officer. Thereafter, the complainant had been kept under suspension on 07.09.2007. As per Ex.D3, the Deputy Director of Public Instructions, Davanagere had suspended the complainant on the said date in connection with creating an order. When such being the case, the allegations made in the complaint are completely false and the trial Court has erred in convicting the accused for the aforesaid offences.
16. It is further contended by learned counsel for the appellant that accused being a co-ordinator had inspected the Government primary school at M.Bullapura on 14 2.1.2007 and conducted annual inspection of that school on 22.2.2007. Further, the complainant was working in the said school on deputation basis from 15.12.2005. Since there were no allegations as against the accused under Ex.P.19 and 20 there was no occasion for him to demand bribe amount from the complainant as narrated in his complaint. Further, the trial Court has failed to take note that during the course of 313 statements to the effect that he used to take loan from the complainant now and then and he used to return the loan with interest. There is signature of the complainant on Exs.P.19 and 20 and as such, it cannot be said that he was not aware of the report under Exs.P19 and 20.
17. Learned counsel for the appellant further contends that the accused was friend of the complainant and that complainant was doing the business of money lending. Therefore, the accused did not demand any money from the accused but it was a loan transaction. Further, 15 Ex.P16 the trap mahazar which is a vital document on the part of the prosecution the same is required to be established by the prosecution in respect of demand and acceptance of bribe amount. But the same has not been established by the prosecution by putting forth cogent and corroborative evidence. Therefore, the evidence of PW.1 and evidence of PWs.2 and 5 who are the material witnesses in respect of pre-trap mahazar as per Ex.P2 and trap mahazar as per Ex.P16 runs contrary to the evidence of PW.4 - Yashodamma who is an Assistant Teacher. But the amount of Rs.2,000/- has been given to her but the said amount has been returned to PW.1 and the same has been utilised by PW.1 by facilitating the same before the Lokayukta Police on 7.4.2007 and that amount was used for laying trap against the appellant/accused. However, the trial Court has misdirected itself in not considering the evidence brought on record under the facts and circumstances of the case and thereby, slipped into error in coming to a wrong conclusion of convicting the appellant/accused which has 16 resulted in failure of justice. These are all the contentions as taken by the learned counsel for the appellant seeking setting aside the judgment rendered by the trial Court.
18. Learned counsel for the appellant in support of his arguments has placed reliance on the following decisions of the Hon'ble Supreme Court:
i) V.Sejappa vs. State by Police Inspector Lokayukta, Chitradurga (AIR 2016 SC 2045) In this judgment, the Hon'ble Supreme Court has held that "Section 7 - Illegal gratification - Demand and acceptance of - Proof of demand is a sine qua non - Plea of alibi taken by accused as being on official tour at place 'B' on date he is alleged to have demanded illegal gratification in his office at place 'C' - Column relating to attendance at office place 'C' was blank for relevant period when trap was laid - Officer working at place 'B' stated appellant to be present for seminar at place 'B' during relevant period -
Defence of appellant that he was attending seminar at place 17 'B' probable - Failure of prosecution to prove that appellant demanded bribe amount on relevant date - Appellate entitled to be acquitted.' Further, it is held that 'Section 7, 20 - Demand of bribe - Purpose of payment of bribe amount - Appellant alleged to have demanded bribe for forwarding pension papers of complainant - Prosecution witness, in cross- examination, denied suggestion that appellant demanded and accepted bribe amount for said purpose - Rather stated that amount was in lieu of amount which appellant had borrowed from complainant - Said witness declared hostile - casts doubt about acceptance of illegal gratification and the prosecution case - Mere recovery of tainted money - not sufficient to draw presumption under Section 20 - appellant entitled to be acquitted."
ii) P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152 18 In the said reliance, the Hon'ble Supreme Court has held that "Sections 7, 13(1)(d)(i) and (ii) r/w S.13(2) - Illegal gratification - Trap case - Proof of demand - Necessity of, for conviction - Demand not proved as complainant had died before the trial - Evidence of other witnesses not sufficient to prove demand, though recovery proved - Benefit of doubt extended to applicant.
- Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Sections 7 and 13 of 1998 Act - Conviction reversed."
iii) C.M.Girish Babu vs. CBI, Cochin, I (2009) CCR 499 (SC) In this reliance, the Hon'ble Apex Court has held that
(i) Indian Penal Code, 1860 - Section 120B r/w Prevention of Corruption Act, 1988 - Sections 7, 13(2) r/w Section 13(1)(d) Section 20 - Illegal gratification - Presumption - Benefit of doubt - Prosecution failed to establish guilt of accused 19 beyond reasonable doubt - Appellant has proved his case by test of preponderance of probability - Amount was not taken by appellant as gratification - He was made to believe that amount paid to him was towards repayment of loan taken by PW.2 from accused No.1 - Conviction of appellant unsustainable under Section 7 of the Act and set aside.
(ii) Prevention of Corruption Act, 1988 - Section 20 - Presumption to be drawn under Section 20 is not an inviolable one - Accused charged with offence could rebut it either through cross-examination of witnesses cited against him or by adducing reliable evidence.
(iii) Prevention of corruption Act, 1988 - Section 20 - Burden of proof - placed upon accused person against whom presumption is made under Section 20 of Act is not akin to that of burden placed on prosecution to prove case beyond reasonable doubt."
iv) (2006)1 SCC 401 (T.Subramanian Vs. State of Tamilnadu)-
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In this reliance, the Hon'ble Apex Court has held "Prevention of Corruption Act, 1947-Sections 5(1)(d) r/w Section 5(2) - Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilt of accused
- If accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, accused would be entitled to acquittal."
v) 2004(2) KCCR 1233 (D.Rajendran Vs. State by Police Inspector, B.O.I.) In this reliance, the Hon'ble Supreme Court has held "Prevention of Corruption Act, 1988 - Sections 7 and 13(1)(d) r/w 13(2) - Evidentiary jurisprudence - Corroboration of evidence of complainant by shadow witness is a must - unless the evidence of the complainant and the shadow witness corroborate with each other it is not safe to convict the accused persons under the Prevention of Corruption Act 21 for the offence under Sections 7 and 13(1)(d) r/w 13(2) of P.C. Act, 1988.
B. Probative value of evidence - in the absence of corroboration from the evidence of PW-2 panch witness no reliance could be placed on the statement of PW-1 complainant conviction cannot be sustained. PW-1 complainant in cross-examination offers answers of lack of memory. Vital aspects are exaggerated."
Vi) AIR 1979 SC 1408 (Suraj Mal Vs. The State (Delhi Administration).
Criminal P.C. (2 of 1974), S.354 - Appreciation of evidence - Two inconsistent statements by witness at one or two stages - credibility. Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. Penal Code (45 of 1860). 22 Section 161 - Evidence and proof - mere recovery of money from accused not sufficient.
19. Learned counsel for the appellant placing reliance on the aforesaid judgments of the Hon'ble Supreme Court contends that, in the instant case, based upon the complaint filed by PW-1, M.Srinivasamurthy, case in Cr.No.3/2007, Davanagere Lokayukta came to be registered against the accused for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C.Act. But there is a duty cast upon the prosecution to prove its case beyond all reasonable doubt otherwise to say preponderance of probabilities that money was paid to him and also that accused has demanded and accepted bribe amount. But in the instant case, merely the tainted currency note as per MO.3 was found in the possession of the accused and also the same has been seized by the Police Inspector by drawing the trap mahazar as per Ex.P16, it cannot be said that it is gospel truth on the part 23 of the prosecution unless, the shadow witness has to give an evidence, which has to be in conformity with the averments made in the complaint at Ex.P1 and so also, the fulcrum of trap mahazar at Ex.P16. But in the instant case, PW-2, Muniswamy, said to be a Second Division Assistant and also being a Government servant who was secured by Police Inspector by a letter correspondence to the Unit Head was directed to act as a panch witness to Ex.P2, pre-trap mahazar and so also, trap mahazar at Ex.P16. There is no dispute that pre-trap mahazar was conducted in the office of the Lokayukta Police Station. There is also no dispute that the trap mahazar said to have been conducted by the Police Inspector in the presence of PW-1. Under the Prevention of Corruption Act, trap mahazar is vital in nature to prove the guilt of the accused. But in the instant case, the prosecution did not prove the guilt of the accused in respect of the demand and acceptance, merely because the tainted currency notes at MO.3 has been seized by the Police Inspector in the 24 presence of the panch witnesses PW-2 and PW-5, it cannot be said that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
20. On all these grounds, learned counsel for the appellant seeks for setting aside the impugned judgment of conviction and order of sentence rendered by the trial Court in Spl. C. (Lokayuktha) No.9/2007 by allowing the present appeal.
21. Per contra, learned Spl.PP for the respondent - Lokayukta contends that the prosecution has proved that the appellant/accused being a public servant while working as Educational Co-ordinator at Davanagere that on 16.3.2007 in his office had demanded an amount of Rs.2,000/- as illegal gratification as a motive from the complainant-M.Sreenivasamurthy to show an official favour that is to close the misappropriation case against him and on 7.4.2007, he had accepted the said amount as illegal gratification and thereby has committed misconduct 25 in discharge of his official duty for the offences punishable under Sections 7, 13(1) (d) r/w 13(2) of the P.C.Act and the trial Court has rightly passed the judgment of conviction and order of sentence convicting the accused for the said offences. It is contended that though PW.1 had tendered the amount as a loan and as such the payment of amount by PW.1 is established, but the burden is shifted upon the accused to explain that he had received the amount by way of loan or otherwise presumption under Section 20 of the P.C.Act has to be raised in favour of the prosecution. Though PW.2 - Muniswamy who is a shadow witness has partially turned hostile to the prosecution case but the evidence of PW.5 who is another panch witness supports the case of prosecution in respect of Exs.P2 and P16. But the accused has not led any oral evidence to substantiate his defence. The hostile evidence of a witness cannot be considered as acceptable evidence so as to support the theory of defence and under such circumstances, it can be said that the charges are proved.
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22. It is further contended that there is no dispute that the accused received Rs.2000/- from the complainant on 7.4.2007 and there is also evidence on record to prove the fact that when both the hands of accused were washed in sodium carbonate solution, both turned into pink color as per the trap mahazar - Ex.P16 conducted by the IO - PW.13. Based on the evidence of PW.1 and other evidence adduced, the prosecution has been able to prove the payment of bribe amount in the hands of accused as on 7.4.2007. Therefore, the trial Court by giving due credence to the evidence of PW.1 which is corroborated by the evidence of PW.2 - Muniswamy and PW.13, the IO who conducted investigation and laid the charge sheet, has rightly held that the prosecution has established that the accused on 16.3.2007 demanded an amount of Rs.2,000/- as illegal gratification from the complainant to close his mis-appropriation case and on 7.4.2007, has accepted the said amount and thereby, has committed mis-conduct in 27 discharge of his official duty. The trial Court on evaluation of entire material evidence available on record has rightly convicted the accused for the aforesaid offences. The impugned judgment needs no interference. The appeal being devoid of merits is liable to be dismissed.
23. It is in this context of contention as taken by learned counsel for the appellant and so also, learned Spl.PP for the respondent - Lokayukta it is relevant to refer to evidence of PW.1 - M.Srinivasamurthy who is the author of complaint as per Ex.P1. He was working as Govt. Lower Primary school in Hindasaghatta village in Davanagere taluk. He was deputed to M.Bullapura Government Lower primary school on deputation basis on 15.12.2006. The accused who was working as educational co-ordinator inspected the school on 2.1.2007. He prepared a report on 22.2.2007 but he did not issued the copy of the report to him and told the complainant that he would send the report against him regarding misappropriation of amount 28 and asked him to pay a sum of Rs.2,000/- as bribe for submitting report in his favour. On 16.3.2007, accused through his mobile No.9986616923 made a call to the complainant and met the accused in his office at 5.00 p.m. on 5.4.2007 and demanded Rs.2,000/- to close the misappropriation matter. Thereafter, he approached Lokayukta police on 7.4.2007 at 10.15 a.m. and lodged complaint under Ex.P1. Thereafter, pre-trap mahazar was conducted by securing two panchas as per Ex.P2. Further, on the same day, he went to the office of the accused along with PW.2 - Muniswamy who is a shadow witness and there the accused demanded money. He paid Rs.2,000/- and accused counted the notes and kept in his shirt pocket. Thereafter, signal was given to the Lokayukta police and they came there and apprehended the accused. Further, both the hands of the accused were washed separately in sodium carbonate solution which turned into pink colour. The Police Inspector conducted the trap mahazar as per Ex.P16 by collecting the samples, seizure of 29 bribe amount and other things as per MOs.1 to 9. Further, accused gave his explanation as per Ex.P17. But in the cross-examination, he has admitted the fact that he was suspended in view of complaint lodged by Head Master Veeraiah and Ex.D3 is the copy of his suspension order, i.e., in respect of PW-1 - Srinivasamurthy.
24. PW.2 - Muniswamy is a shadow witness and he has stated in his evidence that complainant was present in the Lokayukta office, he produced the currency notes and pre-trap mahazar was conducted in his presence and instructions were given by the Lokayukta Police Inspector to accompany PW.1 and directed the complainant to give a signal if accused accepted the bribe amount. Thereafter, he himself and complainant went to the office of the accused. He could not hear the conversation in between the complainant and the accused. After receiving the signal from the complainant, the Police Inspector and his team members came there and trap mahazar was conducted as 30 per Ex.P16 and he subscribed his signature. But this witness was treated as hostile partially and in the cross- examination he has admitted that he could not see the complainant and did not hear the conversation between them. He also admitted that he was sitting on a chair at the time of washing of hand fingers of the accused and that MO.6 does not bear any colour.
25. PW.3 H.K.Lingaraju who was working as Block Educational Officer has stated that the complainant was on deputation at M.Bullapura School and the accused inspected the school on 2.1.2007 and on 22.1.2007, but did not submit any report to the office. When the Lokayukta police consulted him, he gave the service record of the accused as per Ex.P.22 and P23 and certified copies of the documents as per Exs.P24 to P29. But he has turned hostile to the case of prosecution and has denied the statement marked at Ex.P30. In the cross-examination he has admitted that he had approved the tour programme of 31 the accused in January 2007 and that the accused has not made any allegation against the complainant.
26. PW.4 Yashodamma is the vital witness on the part of the prosecution. She has stated in her evidence that she knew the accused and there was financial transaction in between the complainant and the accused. Therefore, she was treated hostile by the prosecution. She has admitted the suggestion that the complainant had given a sum of Rs.2,000/- in her hands to pay the same to the accused but as she could not find the accused, returned the amount to the complainant. This evidence has been completely given go-bye by the trial Court while convicting the accused.
27. PW.5 - Nagaraj is the panch witness. He has spoken about Lokayukta police conducting the pre-trap mahazar as per Ex.P2 and fact of going to the office of the accused along with police staff, complainant and another shadow witness PW.2-Muniswamy. He has also spoken 32 about conducting the trap mahazar at Ex.P16. But in the cross-examination he has stated that he has not seen any records as against the accused in the Lokayukta office. He has not dictated the contents of Ex.P2 - Mahazar. The police did not collect the sample of phenolphthalein powder and at the time of signal he was present with the Police Inspector at a distance of 100 meters from BEO Office. The Lokayuktha Police have not prepared any sketch in respect of the spot where he was standing. It is further elicited that MO5 - bottle is of pink colour and MOs.6 and 7 bottles do not contain pink colour solution. He does not know the contents of trap mahazar at Ex.P-16.
28. PW.13 - H.S.Gangadharappa is the then PI of Lokayukta Office, Davanagere. In his evidence he has stated that on receipt of complaint from Srinivasamurthy i.e., PW-1 on 7.4.2007, he registered FIR as per Ex.P35. He has spoken about conducting the pre-trap mahazar as per Ex.P2 by securing two panchas i.e, PW-2 and PW-5. On the 33 day of trap he along with complainant, panch witnesses and staff went to the office of the accused and waited near the office. At about 4 pm, on the signal given by the complainant towards them, he along with his staff and another panch i.e., PW-2 went inside the office of the accused and conducted the trap. He has identified the solutions collected in different bottles as per MOs No.1, 2 & 5 to 7. He has spoken about the explanation of the accused as per Ex.P17 and he secured annual reports from concerned schools as per Ex.P19 and Ex.P20, recorded statement of witnesses and obtained sanction order for prosecuting the accused as per Ex.P33 and after completion of the investigation laid the charge sheet. In the cross-examination, he has stated that the complaint does not contain the fact of accused demanding bribe in the course of his duty as a Inspector and further, the inspection report does not pertain to the duty period of the complainant and it was in respect of a teacher by name S.Mahendrappa and there are no allegations against the 34 complaint. He has also admitted that the mobile number 9880665976 was not standing in the name of the complainant but standing in the name of one Khaleemulla of Davanagere. He did not find person by name Khaleemulla and there is no explanation in this regard in the charge sheet.
29. In this background, the trial Court has made an observation that there was no dispute of accused receiving Rs.2,000/- from the complainant as on 7.4.2007 and there is also evidence on record to prove the fact that when both the hands of accused were washed in sodium carbonate solution, both turned into pink colour and the Police Inspector conducted trap mahazar as per Ex.P16 in the office of the accused. But the trial Court erred in not noticing the fact that PW.2 - Muniswamy who is a shadow witness to the incident has not at all supported the case of the prosecution and as such the version of the prosecution based on the complaint of complainant is untenable. 35 Further, PW.2 who is a vital witness on the part of the prosecution has stated that he could not see the accused and the complainant and he could not hear the conversation that took place between them and so also, handing over the amount to the accused i.e., MO-3. This part of the evidence assumes much importance. He has stated that he did not verify as to from whom mis-call came to the mobile of the complainant - PW1 and he was witnessing the notice board of BEO office. He also states that he was sitting on a chair at the time of washing of hands of the accused and that MO.6 does not bear any colour. Though he has subscribed his signature to the trap Mahazar at Ex.P16, he admits that he has not read the contents of the mahazar. But this evidence does not find place on the parts of the prosecution in respect of demand and acceptance which is an integral part of the prosecution to prove the guilt of the accused. PW.2 being the vital witness in respect of Ex.P16, but there are inconsistencies and contradictions in his evidence which runs contrary to 36 the evidence of PW.1 who is the author of the complaint at Ex.P1. The trial Court has not dealt this issue in detail in view of appreciation of evidence of PW.1 and so also, evidence of PW.2 and PW.5 in respect of trap mahazar as per Ex.P16.
30. Further, the trial Court has erred in not noticing the evidence of PW.3 - H.K.Lingaraju working as a B.E.O who has admitted that he had approved the tour programme of the accused in January 2007 and accused inspected the school of M.Bullapura on 22.1.2007 and has not made any allegations against the complainant - PW1. Therefore, closing of the misappropriation cases based on the inspection report made by the accused does not arise at all, as this contention taken by the learned counsel for the appellant. Further, PW.4 - Smt.Yashodamma was also treated as hostile by the prosecution as where in the cross- examination, she has denied the fact of she giving statement before the police as per Ex.P31. She has 37 admitted the suggestion that the complainant had given a sum of Rs.2,000/- in her hands in turn to pay the same to the accused. Since she could not find the accused, returned the amount to the complainant. Mere because that tainted currency notes at MO.3 were found in possession of the accused and were seized under Ex.P16 in the presence of PW.1 and also in the presence of PWs.2 and 5, it cannot be said that accused has demanded and accepted the bribe amount.
31. In order to see whether the accused had demanded the bait money in order to close the misappropriation case against the complainant, it is relevant to refer the admission of PW.13 - the then PI who has admitted that there were no any allegations in the report under Ex.P.19 and there were no allegations as against the complainant in another report marked as per Ex.P20. Further, the complainant was relieved from M.Bullapura School as on 7.4.2007 and by that time he 38 had joined Government Higher Primary school at Hindasaghatta. Under these circumstances, there was no occasion for the accused to demand bribe amount from the complainant as narrated in his complaint at Ex-P1. In this connection, appellant's counsel contends that the accused had joined his original school at Hindasaghatta on 7.4.2007 and that the complainant had told him that he would come to Davanagere on 7.4.2007 to attend Head Master's meeting and he would bring loan amount on that day. But the trial Court has not considered the above aspect and went to convict the accused which appears to be unsustainable in law.
32. Further, it is relevant to note that the very complainant who approached the accused telephonically and there was no demand even earlier to registering of crime and prior to trap in the office of BEO, Davangere. But the accused was not very much present on that day, as he was present at St.Paul Convent School, Davanagere to attend the Headmaster's conference and also on 16.3.2007 39 as this accused was away from Davanagere at a distance of 40 kms H.Basapur regarding the school inspection and he was engaged in the inspection duty in the office from morning till evening. Though mobile transaction took place in between the complainant and accused, but neither the SIM card nor mobile was seized.
33. Further, it is also relevant to note that in the course of 313 statement, the accused had stated that he used to take loan from the complainant now and then and he used to return the loan with interest. There is signature of the complainant on Ex.P19 and 20 and as such it cannot be said that, he was not aware of the said reports. On 5.4.2007, the accused had asked PW.4 - Yashodamma to collect money towards loan from the complainant and this fact has been stated by PW.4 in her evidence that there was loan transaction in between the complainant and the accused. But the trial Court wrongly concluded that there are no other materials towards loan transaction and further 40 went to make an observation that lokayukta police had recorded the statement of this witness to show that Yashodamma was not directed to receive the loan amount from the complainant so as to pay the same to the accused.
34. When PW.2 in his evidence has stated that there is no colour in MO.6, the trial Court observes that PW.2 is not a competent witness to speak about the colour of MO.6 solution. This finding of the trial Court is unacceptable. Since, there were no allegations in Exs.P19 and 20, it appears that there was no occasion for the accused to demand bribe amount from the complainant, even though the accused who conducted inspection when the complainant was on deputation in that school. Under the circumstances, the theory put forth by the prosecution casts clouds of doubts.
35. It is relevant to note here that the trap has not been held in the actual office of the accused but on 7.4.2007, the accused said to be educational co-ordinator 41 was present in the Headmaster's conference scheduled to be held on that day in the premises of St.Paul's Convent school. But on that day PW.1 who was venturing to register complaint against the accused approached Police Inspector of Lokayukta and he succeeded only to the extent of contents of Ex.P2 - pretrap mahazar which was conducted in the presence of panch witness. But Ex.P16 which is a vital document on the part of the prosecution is required to be established by the prosecution in respect of demand and acceptance. But the same has not been established by the prosecution by putting forth, cogent, corroborative and independent evidence. Therefore, the evidence of PW.1 coupled with the evidence of PWs.2 and 5 in respect of pretrap mahazar and trap mahazar as per Ex.P2 and P16 respectively, runs contrary to the evidence of other prosecution witnesses.
36. In the instant case, appellant's counsel also points out that the complainant is man of complex nature 42 and he finds pleasure in harassing others. For such acts, the complainant was using mobile number 9880665976. PW.13, the IO in his cross-examination has admitted the said mobile number was not standing in the name of the complainant and it was standing in the name of one Khaleemulla of Davanagere. PW.1 in his evidence has stated that on 16.3.2007, from the said mobile number had informed the accused to meet at his office at 5.00 pm. on 5.4.2007. But in the cross-examination he has denied the suggestion that he had telephoned to accused on his mobile in respect of his deputation on 16.3.2007.
37. The trial Court has failed to take note of the records by the defence to indicate that the complainant was suspended in connection with some of his mis-deeds and he was in a habit of changing his mobile numbers and as such his evidence cannot be accepted. Apart from that he had made a call from the above said mobile number to one Sri G.Veeraiah, Head Master and told him to be present 43 before the Commissioner of Public Instructions, Bengaluru. Thereby, the said Veeraiah by handing over his charge to the complainant-PW1 had been to Bengaluru and when he had been there, on investigation he came to know that it was a false call made by the complainant. In this connection, said Veeraiah had lodged complaint against PW.1-Srinivasamurthy and the police have recorded the statements in this regard. That apart the complainant used to behave unusually and due to this the Villagers of Hindasaghatta Village had also lodged a complaint to the Block Education Officer. Thereafter, the complainant had been kept under suspension on 07.09.2007. As per Ex.D3 the Deputy Director of Public Instruction, Davanagere had suspended the complainant on the said date in connection with creating an order. When such being the case, the allegations made in the complaint are false and the trial Court has erred in convicting the accused for the aforesaid offences.
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38. In the instant case, PW-2 accompanied by PW-1 to the premises of the office of the B.E.O. has warned the accused on 07.04.2007 but when the accused was getting down from the office, then only, the Police Inspector, Lokayukta who got signal extended by PW-1 by wiping his face, then only, the accused is trapped by the team lead by the Police Inspector but thereafter drew the trap mahazar as per Ex.P16 in the presence of PW-2 and PW-5 and subscribed their signature on Ex.P16. PW-2 being a shadow witness did not support the case of the prosecution. Therefore, unless there is corroborative evidence on the part of the prosecution, no reliance can be placed on the evidence of PW-1 even though he is an author of complaint at Ex.P1 and also subscribed his signature on Ex.P2 and Ex.P16. In the instant case, there is no dispute that the competent authority has accorded sanction to prosecute against the accused as per Ex.P33 and Exs.P19 and P20 are the inspection reports whereby the educational co-ordinator and similar documents at 45 Exs.D1 and D2 but the said vital documents at Exs.P19 and P20 has been facilitated to the competent authority who accorded sanction. But he has accorded sanction in conformity with Section 19 of the P.C. Act, 1988. Merely because, he has accorded sanction it cannot be said that the accused is said to have committed an offence of demanding the bribe amount. Exs.P19 and P20 are the vital documents in respect of the inspection report made by the accused by working as educational co-ordinator. Merely because PW-7 being competent authority who accorded sanction as per Ex.P33 to prosecute against the accused, it cannot be said that the prosecution has proved its case by putting forth the cogent, corroborative and consistent evidence in respect of demand and acceptance, even to the extent of saying as valid sanction, in order to prosecute the case against the accused being the government servant as contemplated under Section 19 of the P.C. Act, 1988.
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39. PW-1 being an author of the complaint has averred that the accused had demanded bribe and accepted an amount of Rs.2,000/- as bribe from him. But merely because, the bribe amount is recovered from the possession of the accused, it cannot be said that, it is the gospel truth of the theory facilitated by the prosecution in order to prove the guilt of the accused unless it is proved by putting forth cogent and corroborative evidence. The entire fulcrum of the trap mahazar at Ex.P16 is required to be established by the prosecution. Therefore, unless the evidence of the complainant and the shadow witness corroborate with each other, it is not safe to convict the accused person. In the case of bribery, mere recovery of money from the accused cannot be said that the prosecution has proved the guilt of the accused. That itself is not sufficient to convict the accused when the evidence in the case is not reliable. The prosecution has failed to prove any demand for alleged illegal gratification involved and, thus, a vitally essential ingredient of the offences both under Sections 7 and 47 13(1)(d) r/w 13(2) of P.C. Act being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. In my view, the evaluation of the evidence made by the trial Court while recording the conviction suffers from infirmities, the same is unsustainable in law and on facts.
40. In the totality of the circumstances of the case, I am of the view that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. Therefore, in this appeal, it is required to revisit the impugned judgment of conviction by re-appreciating the entire evidence available on record. The Trial Court has misinterpreted and misdirected the evidence of the prosecution, therefore, if the same is not re-appreciated, certainly there would be miscarriage of justice. Under the circumstance, I proceed to pass the following order:
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ORDER The appeal preferred by the appellant is allowed. The judgment of conviction and order of sentence rendered by the Trial Court in Spl. Case (Lokayuktha) No.9/2007 dated 24.03.2011 is hereby set aside. Consequently, the accused is acquitted of the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C. Act, 1988.
If any fine amount has been paid by the accused, the same shall be returned to him on proper identification.
If the accused has executed any surety or bail bonds, the same shall stand cancelled.
Sd/-
JUDGE DKB/DH