Karnataka High Court
Ashok S/O Shrimandar Chougale vs The State Of Karnataka on 31 August, 2020
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31st DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2569/2011
BETWEEN:
1. SRI. ASHOK S/O SHRIMANDAR CHOUGALE,
AGE: 58 YEARS, OCC:IN-CHARGE SECRETARY,
GRAM PANCHAYAT, KATAKABHAVI,
NOW AT SAVASUDDI VILLAGE,
TAL: RAIBAG, DIST: BELAGAVI.
2. SRI. SANGAPPA S/O PARAPPA DAVANI,
AGE: 40 YEARS,
OCC: CLERK-CUM-BILL COLLECTOR,
NOW NIL,
R/O: KATAKABHAVI, TQ: RAIBAG,
DIST: BELAGAVI.
....APPELLANTS
(BY SRI.S.S.KOTI, COUNSEL FOR
SRI.SRINAND A. PACHHAPURE, ADV.)
AND:
THE STATE OF KARNATAKA,
BY LOKAYUKTA POLICE STATION,
BELAGAVI, NOW REP. BY SPP.
... RESPONDENT
(By SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV.)
2
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 29.01.2011 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
SPECIAL JUDGE, BELAGAVI, IN SPECIAL CASE
NO.11/2007, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 7 AND 13(1)(d) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION
ACT.
RESERVED FOR JUDGMENT ON: 18.08.2020.
JUDGMENT PRONOUNCED ON : 31.08.2020
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT PASSED THE FOLLOWING:
JUDGMENT
The appellants/accused Nos.1 and 2 have preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 29.01.2011, convicting them for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 3 1988 (for short referred to as 'the Act') and sentencing them to undergo imprisonment and to pay fine with default sentence.
2. Heard the learned counsel Sri.S.S.Koti on behalf of Sri.Srinand A. Pachhapure for the appellants and the learned counsel Sri.Mallikarjunswamy B.Hiremath for respondent-State.
3. The brief facts of the case of the prosecution before the trial Court are that, accused No.1 being the Secretary and accused No.2 being the Bill Collector cum Clerk in the Gram Panchayat, Katakabhavi of Rabakavi taluka, Belagavi District, are the public servants and demanded illegal gratification from the complainant Smt.Ameena Maliksab Arabhavi to act on her application to mutate her name in respect of the residential house, after the death of her husband and accused No.1 accepted Rs.300/- and 4 accused No.2 accepted Rs.400/- on 24.07.2006 at 2.30 pm in Katakabhavi Gram Panchayat Office as gratification, other than legal remuneration, as a motive or reward for doing the official duty and thereby committed criminal misconduct punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
4. The prosecution in order to prove its contention examined PWs.1 to 7, got marked Exs.P1 to 25 and identified M.Os.1 to 14 in support of its contention. Accused have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C. and got examined themselves as DW1 and 2 and got marked Ex.D1 and D2 in support of their defence.
5. The trial Court after taking into consideration all these materials on record found that 5 the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict both the accused. Aggrieved by the said judgment of conviction and order of sentence, accused have preferred this appeal on various grounds.
6. Learned Counsel Sri.S.S.Koti submitted that the prosecution has failed to prove that accused No.2 was a public servant, which is the basic requirement to attract the Penal provisions. He submitted that accused No.2 was working on temporary basis as a Bill Collector and therefore he was not a public servant. Under such circumstances, the trial Court had no jurisdiction to try accused No.2 for the offences punishable under the Act.
7. Learned Counsel further stated that I.A.No.1/2017 is filed on behalf of the appellant No.2, under Section 391 of Cr.P.C. seeking permission for 6 production of additional documents. Two documents are produced as additional evidence, which are necessary for just determination of the matter. These documents were not within the reach of accused No.2, when the matter was before the trial Court and now the same are produced before this Court. If these documents are taken into consideration, it is clear that accused No.2 was working purely on temporary basis and he was not a public servant. Hence he prays for allowing I.A.No.1/2017, permitting accused No.2 for producing the documents and after taking into consideration those documents, acquitting accused No.2 in limine.
8. Learned counsel placed his reliance on the decision in STATE OF KARNATAKA Vs. M. 1 MUNISWAMY to contend that accused No.2 was not 1 (2002) 10 SCC 546 7 the public servant as he was not the permanent employee appointed by the Government.
9. Hon'ble Supreme Court in paragraph 3 held as under:
"3. When he filed an appeal before the High Court a learned Single Judge mainly considered the question whether the respondent was a public servant falling within the ambit of Section 21 of the Indian Penal Code. Learned Single Judge found that evidence in the case is totally insufficient for holding that Ashoka Hotel or Indian Tourism Development Corporation (of which Ashoka Hotel is a unit) was a government company. Accordingly the High Court found that the whole trial was without jurisdiction before the Special Court. It is unnecessary to extract Section 21 IPC either in its entirety or the "twelfth" clause of it which alone was found relevant as for this case. If Indian Tourism Development Corporation was not shown to be a government company, an employee of Ashoka Hotel cannot become a public servant falling within the purview of Section 21 IPC."8
10. Learned counsel also contended that the prosecution has not proved the pendency of the work of the complainant either with accused No.1 or 2, as on the date of the alleged incident. The complainant has stated that she filed the application for mutation of her name in respect of the house after the death of her husband. But neither accused No.1, who was the Secretary nor accused No.2, who was working as temporary Bill Collector cum Clerk in the Gram Panchayat were authorized to order for mutation of the name of the complainant on the basis of her application. If at all Gram Panchayat consisting of the Chairperson and other Members i.e. the elected representatives, should have accepted the request by the complainant and should have directed the accused to mutate her name in respect of the residential house. When there are no materials to prove these 9 requirements of law, the accused could not be held liable for any of the offences.
11. The third contention raised by the learned Senior Counsel is that the prosecution has not proved the demand and acceptance of the illegal gratification by accused Nos.1 and 2. The learned counsel contended that there is no evidence led by the prosecution to the effect that accused have demanded for payment of Rs.300/- and Rs.400/- respectively. He contended that when there is no demand, there cannot be any offence under Section 7 of the Prevention of Corruption Act.
12. Learned counsel further stated that as per the trap mahazar, accused No.1 at the earliest point of time has taken a defence that it was one Bheemappa Desai who had accompanied the complainant, had thrust the currency notes in his shirt pocket, even though he had never demanded for 10 money. Therefore it cannot be accepted that there was any demand or acceptance of illegal gratification by the accused. He further contended that as per the case made out by the prosecution, since from the time when the complaint was lodged with Lokayukta police, the said Bheemappa Desai was present with the complainant and he himself had forcibly thrust the currency notes in the shirt pocket of accused No.1. But strangely this witness was not examined before the trial Court. Thereby the prosecution has withheld a material witness during trial and an adverse inference will have to be drawn against the prosecution as it was not a fair trial.
13. Learned Counsel further submitted that since the statement of Bheemappa Desai under Section 161 of Cr.P.C. was not recorded and he was not cited as charge sheet witness, the prosecution could not have examined him before the trial Court. 11 This conduct of the prosecution amounts to suppression and withholding of material evidence. If he were to be examined before the trial Court, without showing him as witness in the charge sheet, definitely he would have spoken to about the tutored version of the prosecution and great injustice would have caused to the accused.
14. The learned counsel submitted that PW1 the shadow witness has not supported the case of the prosecution fully. He was treated partially hostile and later when the witness was cross examined by the learned advocate for the accused, he admitted that an advocate was also present in the Lokayukta Office along with the aforementioned Bheemappa Desai and the complainant being illiterate rustic woman was made use of to lodge the complaint against the accused. The evidence of this witness is not corroborating with the evidence of the complainant 12 examined as PW3, nor it is sufficient to form an opinion that there was demand and acceptance of the illegal gratification by the accused.
15. He further submitted that PW2 being the second pancha to the entrustment panchanama, has also not fully supported the case of the prosecution. Further the evidence of this witness discloses that he is the stock pancha or a habitual pancha assisting the Lokayukta Police in several matters. During his cross examination, this witness specifically admitted that he was the pancha in two to three cases and under such circumstances, his evidence is not credible and worth believing.
16. Learned counsel also submitted that the complainant deposing before the trial Court as PW3, do not specifically state regarding the demand and acceptance of money by accused Nos.1 and 2 for discharging their official duty. If the evidence of this 13 witness is read carefully, it gives an impression that the amount was paid voluntarily. When there is no demand and acceptance of any money, the accused cannot be found guilty of any of the offence alleged against them.
17. Learned counsel further submitted that the prosecution examined PW5-the Sanctioning Authority, who issued sanction order as per Ex.P21 to prosecute accused No.2. When accused No.2 is not a public servant, according sanction to prosecute him, will not serve any purpose. Moreover, PW5 is a Secretary in the Gram Panchayat and he cannot be the Appointing Authority or the person who is having Authority to remove accused No.2 from his service. Therefore Ex.P21 is of no consequence.
18. Learned counsel also commented on the evidence of the Investigating Officer examined as PW6. As per the case made out by the prosecution, 14 the Panchayat Meeting was being held at the time of the alleged incident. The President and other Members of the Panchayat were very much present at the scene of offence. But none of them were enquired by the Investigating Officer nor were examined before the trial Court. No independent witnesses are examined in support of the contention of the prosecution, for the reasons best known to the investigating officer. Adverse inference will have to be drawn against the case made out by the prosecution. When deliberately the prosecution fails to examine the independent witnesses and also the material witness Bheemappa Desai and when PW6 has not explained whatsoever for non-examination of these witnesses, it is fatal to the case of the prosecution. Therefore it cannot be held that the prosecution is successful in proving the guilt of accused Nos.1 and 2 for any of the offences alleged against them.
15
19. Learned counsel submitted that even though the complaint was registered against the accused alleging that they had threatened the complainant not to depose against them before the trial Court, the case was tried by the Jurisdictional Magistrate and accused are already acquitted, thereby the say of PW3 that she was threatened by the accused is falsified and the conduct of PW3 in this regard is to be taken into consideration.
20. Learned counsel relied on the decision in SURAJ MAL Vs. THE STATE (DELHI 2 ADMINISTRATION) in support of his contention that the evidence of PW3 was inconsistent and the same cannot be relied on to prove demand and acceptance of bribe.
21. The Hon'ble Apex Court in paragraph 2 held as under:
2
AIR 1979 SC 1408 16 "2. xxxx Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. xxxx"
22. Learned counsel also placed his relied in RAM BABU SHARMA Vs. STATE OF UTTAR 3 PRADESH to support his contention that non- examination of independent witnesses to speak about the incident in question is fatal to the case of the prosecution.
23. The Hon'ble Apex Court in paragraph 12 held as under:
"12. It is note worthy that the prosecution did not examine any employee or proprietor Laxmi Sweet Centre where the whole transaction of bribe is alleged to have taken place and there is no plausible explanation on the record by the prosecution as to why no. one was produced from 3 LAWS(ALL) 1990 12 91 17 amongest them. The prosecution, besides the complainant, has examined Radhey Mohan who belongs to the bradri of complainant Suresh Chandra and he is also inimical to the accused in as much as the appellant had served a notice on firm Bhagwan Dass Harswaroop Mal on 19. 3. 1979, 17.
11. 1978 and 8. 10. 1978 prior to this incident and Radhey Mohan being the proprietor of the firm Bhawan Dass Herswaroop Mal had also filed objection Ex. Kha S. 4 dated 7. 10. 1978 against the notice of payment of Mandi Samiti Fee. The accused has also filed copy of Disperch. Registrar Ex. Khe-1 and Khe-3 and copy of notice dated 29.
3. 1979 Ex. Kha-2 and Kha-5. The trial court has also held Radhey Mohan (J>. W. 4) not independent witness on account of notice issued against him by the accused prior to the occurrence. The learned Sessions Judge had also expressed his displeasure in pargraph 26 of judgment that the Vigilance Inspector should have made efforts to secure the presence of independent witnesses at the time of laying the trap and he should not have secured the presence of witnesses like Radhey Mohan and Suresh Chandra; complainant who were admittedly disposed with the secured or against whom the accused had served show cause notices and challenged them before the court. He should have secured the presence of the independent witness of the locality so that the Court might feel 18 safe to place reliance on the testimony of independent witnesses and the chance of false implication of public servant in the above case may be reduced. Under the circumstances, as discussed above it is difficult to hold that the complainant Suresh Chandra (PW3) and Radhey Mohan (PW4) are reliable witnesses."
24. Relying on these decisions, the learned counsel contended that the prosecution failed to prove the guilt of accused Nos.1 and 2 beyond reasonable doubt. It under such circumstances, the trial Court committed an error in forming the opinion that the guilt of the accused is proved beyond reasonable doubt. The impugned judgment of conviction and order of sentence is liable to be set aside and both the accused are entitled to be acquitted. He also prays for allowing I.A.No.1/2017 filed under Section 391 of Cr.P.C., producing two additional documents in support of the defence taken by the accused in the interest of justice. He further submitted that mere 19 proving the recovery of tainted money from the accused, is not sufficient to prove the commission of the offence for which the accused were charged.
25. Per contra the learned counsel for the respondent-State while supporting the impugned judgment of conviction and order of sentence passed by the trial Court submitted that there are no grounds made out to allow the appeal.
26. Learned counsel submitted that Ex.P19 very specifically refers to the demand made by accused No.1 for himself and also on behalf of accused No.2 after 20 days of filing the application for mutation of the name of the Informant. It also refers to the demand for illegal gratification by accused No.2. Further PW3 the informant in her evidence clearly stated regarding the demand and acceptance of the bribe amount by accused Nos.1 and 2. This version of PW3 is also corroborated by the evidence of 20 the shadow witness PW1. He has drawn my attention to the FSL report to contend that the hand wash of accused Nos.1 and 2 tested positive for the presence of phenolphthalein, which also supports the contention of the prosecution that both the accused have infact accepted the tainted money.
27. He further submitted that the materials placed before the Court, both oral and documentary evidence, disclose that the tainted money was recovered from the shirt pocket of accused No.1 and the tainted money which was accepted by accused No.2 was recovered from his almirah. Learned counsel also drawn my attention to Ex.P13 the explanation submitted by accused No.1 at the earliest point of time stating that Bheemappa Desai had suddenly thrust currency notes in his shirt pocket and that he never accepted the same, but again the FSL report Ex.P23 discloses that his hand wash tested positive 21 and there is no explanation by accused No.1 as to how his hand wash could be tested positive for the presence of phenolphthalein, when he had not accepted the money.
28. It is further contended that, accused No.2 in his explanation as per Ex.P14 categorically admitted the demand and acceptance of the bribe amount, which cannot be ignored while considering the defence taken by the accused. He further contended that while cross examining the investigating officer-PW6, it was never suggested that the explanations as per Exs.P13 and 14 were obtained by force. On the other hand, it is suggested that the same were concocted, which cannot be accepted.
29. The learned counsel for the respondent also drawn my attention to the order sheet dated 11.03.2010 of the Trial Court to contend that the prosecution had infact filed an application under 22 Section 311 of Cr.P.C., seeking to summon Bheemappa Desai to depose before the Court, but the said application was opposed by the accused tooth and nail and the said application was came to be rejected. Under such circumstances, the accused at this stage cannot contend that the said Bheemappa Desai was a material witness and his non-examination amounts to withholding of material evidence. Further he also contended that when other prosecution witnesses have specifically spoken to regarding the offence committed by the accused, examination of Bheemappa Desai, is not fatal to the case of the prosecution.
30. Learned counsel also stated that PW3 in her evidence stated that the accused were threatening her by insisting not to depose before the Court against them and there is absolutely no cross examination on this point. From the conduct of PW1, it is very clear 23 that he was infact either threaten or won over by the accused and therefore he was not firm while deposing before the Court.
31. Learned counsel also contended that accused No.1 never stepped into the witness box to speak about the defence, which shows his guilty mind. If at all accused No.1 had any specific defence, he should have stepped into the witness box to speak about the same. An adverse inference will have to be drawn against accused No.1 in this regard.
32. Learned counsel submitted that there is not even a suggestion to PW1 or 6 that these accused were falsely implicated. There is absolutely no reason for any of the prosecution witnesses to falsely implicate these accused or to concoct false documents.
33. Lastly learned counsel for the respondent submitted that as per the definition of the word 'public 24 servant' found in Section 2(c)(ii) of the Prevention of Corruption Act, 'any person in the service or pay of a local authority; is also a public servant and he need not be a Government servant. Through out, accused No.2 stated that he was appointed as a Bill Collector by the Katakbhavi Gram Panchayat and he has been paid by the Local Authority i.e. the Gram Panchayat. Therefore he squarely falls under Section 2(c)(ii) of the Act and he is a public servant as defined under the Act.
34. Learned counsel further submitted that I.A.No.1/2017 filed under Section 391 of Cr.P.C. does not merit consideration. There is inordinate delay in filing the application. Moreover even if the additional documents are to be taken into consideration, the same will further strengthen the contention of the prosecution that accused No.2 was in the service and pay of the local authority and therefore he is a public 25 servant. Learned counsel relied on the decision in STATE OF KARNATAKA Vs. M. MUNISWAMY (supra) to contend that the exhaustive definition of the word 'public servant' defined under Section 2(c)(ii) of the Act applies to accused No.2.
35. Learned counsel submitted that Explanation
(a) to Section 7 of the Act covers those persons who deceive others to believe that he is about to be in the Office and that he will serve them. Accused Nos.1 and 2 in the instant case deceived the informant that they are the Authorities to act upon her application and demanded and accepted the gratification. Proof of these facts by the prosecution is sufficient to attract Section 7 of the Act.
36. He further contended that when the prosecution is successful in proving that the accused have demanded and accepted the gratification from the complainant and it is also shown that her 26 application seeking mutation of her name in the revenue records was pending in the Gram Panchayat concerned, the presumption under Section 20 of the Act operates against both the accused and it is for the accused to rebut the same. In the present case accused No.1 never stepped into the witness box nor he has rebutted presumption either during cross examining the prosecution witnesses or placing any other material. Accused No.2 even though stepped into the witness box, has not rebutted the presumption and therefore both the accused are liable to be convicted for the charges leveled against them.
37. Learned counsel for the respondent placed his reliance on STATE OF GUJARAT Vs. NAVINBHAI 4 CHANDRAKANT JOSHI AND OTHERS where under the Hon'ble Apex Court in paragraph 11 held as under:
4
(2018) 9 SCC 242 27 "11. So far as the presumption raised under Section 20 of the Act for the offence under Section 7 of the Act is concerned, it is settled law that the presumption raised under Section 20 of the Act is a rebuttable presumption, and that the burden placed on the accused for rebutting the presumption is one of preponderance of 5 probabilities. In C.M.Girish Babu v. CBI , this Court held as under:
"21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence...
22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.
Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any 5 (2009) 3 SCC 779 28 satisfactory explanation, it will be presumed that he has accepted the bribe."
38. In view of the above, learned counsel for the respondent-state submitted that there is absolutely no reason to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court. Hence, he prays for dismissal of the appeal as devoid of merits.
39. Perused all the materials including the trial Court records.
40. Prosecution examined PW3 the first informant to prove the demand and acceptance of illegal gratification by the accused, concerning her application pending before the Gram Panchayat, Katakabhavi, seeking mutation of her name in the revenue records in respect of her house property.
41. PW1 is the shadow witness who said to have accompanied the informant-PW3 while meeting 29 accused Nos.1 and 2, and witnessed the demand and acceptance of gratification. He also said to have witnessed the entrustment of the amount to the complainant under the entrustment panchanama Ex.P2. Both PWs1 & 3 spoke about the entrustment panchanama and proceedings held in the Office of the Gram Panchayat, Katakabhavi. They also spoke about the demand and acceptance of the gratification by accused Nos.1 and 2, taking their hand wash, recovery of the tainted money from the possession of the accused and drawing of trap mahazar-Ex.P3 and seizure of samples and hand wash solutions etc.,
42. PW2 the second pancha spoke about the entrustment panchanama and thereafter recovery of the tainted money from accused Nos.1 and 2 and drawing of entrustment and seizure panchanama as per Exs.P2 and 3.
30
43. PWs4 and 5 are the Sanctioning Authorities who issued the order of sanction to prosecute accused Nos.1 and 2 under Exs.P20 and 21 respectively.
44. PW6 is the investigating officer who spoke about receiving of the first information, registering the FIR, conducting entrusting panchanama in Lokayukta office and also about the procedure that was conducted during trap and recovery of tainted money from accused Nos.1 and 2 and also about the investigation conducted by him. PW7 is the Assistant Engineer, PWD, who has drawn the spot sketch as per Ex.P16.
45. PW1-the shadow witness supported the case of the prosecution about the material particulars. When some information could not be elicited from the witness, he was partially treated hostile and learned Special Public Prosecutor cross examined him. During cross examination, witness admitted each and every 31 facts and circumstances as suggested by the prosecution about the entrustment panchanama, approaching the accused along with the informant- PW3, acceptance of the illegal gratification by both the accused in the panchayat office, on receiving the signal from the informant, the investigating officer coming to the spot along with the second pancha and the procedures that are followed about hand wash of accused Nos.1 and 2 and also the wash of the pocket portion of the shirt that was worn by accused No.1, seizing of the sample and hand and shirt wash solution separately, recovery of tainted money from accused No.1 from his shirt pocket and from accused No.2 which was kept by him in the almirah. He also supported the prosecution version that accused No.1 producing the documents and seizing of the copies as per Ex.P12; explanation submitted by accused Nos.1 and 2 as per Exs.P13 and P14, handing over the seal 32 used in seizing the articles by the investigating officer, accompanying the Assistant Executive Engineer and showing the scene of occurrence and drawing of the spot sketch as per Ex.P16. This witness further stated that since the incident had taken place, during July 2006 and he was deposing during October 2009, some of the facts and circumstances were forgotten by him and therefore, he could not depose the same as it is, in his chief examination.
46. The cross examination of this witness-PW1 was deferred and he was cross examined by the learned counsel for the accused on 10/11/2009. During such cross examination, witness stated that there was an Advocate in the Lokayukta office when he had gone there. But however, denied the suggestion that the informant was not in the Lokayukta office and no procedure was conducted in his presence. It is suggested to this witness that the 33 informant had requested the accused on 24/7/2006, i.e. on the date of incident to get her work done immediately. This suggestion was admitted by him. Even though it is admitted that the information was prepared by the police in the name of the informant and her thumb impression was taken, he denied the suggestion that the contents of the panhcanama were not known to the informant. Witness admitted that the photos produced by the prosecution were taken by the police by giving the money to the hands of the accused, thereby stage managing the situation.
47. From the conduct of this witness-PW1 during cross examination, it can be easily made out that he has given a go back to his earlier version to some extent and he is not willing to support the case of the prosecution fully. Therefore, the witness was again cross examined by the learned Special Public prosecutor. During such cross examination, witness 34 admitted that the first information was not prepared in his presence. He also admitted that all the signatories to the panchanama have signed it after fully drawing the panchanama and that the thumb impression of the informant was not taken on the blank paper. He also stated that the police have not given the money to the accused and taken the photos as per Exs.P7 to P11. He also stated that the accused were not brought to Lokayukta police station.
48. PW2 is the second pancha who also supported the case of the prosecution with regard to the drawing of the entrustment panchanama. Informant and PW1 going to the panchayat office and subsequently, the procedure conducted by the investigation officer i.e., taking hand wash of accused Nos.1 and 2 in the sodium carbonate solution, wash of the pocket portion of the shirt of accused No.1 in the such solution, recovery of tainted money from accused 35 Nos.1 and 2, seizing of the solutions, drawing of seizure of trap mahazar etc. Since some of the information could not be elicited from the witness he was also treated partially hostile and when the learned Special Prosecutor cross examined the witness, he admitted all such details and stated that since the incident had taken place long ago, the details were forgotten and therefore, he could not depose the same in the chief examination. During cross examination by the learned counsel for the accused, it is elicited from this witness that the informant was in Lokayukta office when he gone there and she was not knowing reading and writing. It is also suggested to the witness that the informant had complained that the accused are not effected change of khata after the death of her husband and willfully they are delaying the mutation and had filed the complaint. Witness denied the suggestion that all the photos were taken in the 36 Lokayukta office and stated that Exs.P7 to P11 were taken in the Katakbhavi gram pachayat. He denied the suggestion that these photos were stage managed by the police. Witness denied the suggestion that he was threatened by the Lokayukta police to depose as per the case of the prosecution and that is why he is deposing before the Court. It is elicited from this witness that he acted as pancha in 2 to 3 cases.
49. PW3 is the informant herself and stated that her husband Lalsab had died and she had submitted an application to accused No.1 who was working as Secretary in Katakbhavi gram panchayat. Accused No.2 was also working in the said panchayat. Witness stated that accused No.1 had demanded Rs.300/- and accused No.2 demanded Rs.400/- to effect change of Khata in her name. She had visited Katakbhavi Gram panchayat about 50 times, seeking change of khata in her name. But still, the accused 37 have not mutated her name in the khata. Therefore, she lodged the complaint as per Ex.P19 with the police. Police summoned two panchas and entrusted her Rs.300/- and Rs.400/- which was kept in separate covers and panchanama was drawn in Lokayukta office. Witness also spoke that she along with one Sri.Ankalgi i.e., shadow witness went to Katakbhvi gram panchayat. Panchayat meeting was being held and both the accused were there in the meeting. When accused No.1 came out of the panchayat office, she gave Rs.300/- and when accused No.2 came out she gave Rs.400/-. Accused No.1 counted the currency notes and kept it in his shirt pocket. Accused No.2 accepted the money, went inside his room and kept it in the almirah which was by the side of his chair. Witness stated that both these accused have accepted the money for discharging their official duty of mutating her name in the revenue records. 38 Witness stated that Bheemappa Desai is from her village and he was also there with her.
50. Witness sated that after accused Nos.1 an 2 accepted the bribe amount, she came out of the office and gave signal to the investigating officer. Investigating officer and others came to the gram panchayat, both hands of accused Nos.1 and 2 were separately washed in the solution which had turned to pinck colour, thereafter, Rs.300/- was recovered from the accused from his shirt pocket and Rs.400/- from accused No.2 which was kept in his almirah and portion of the shirt pocket of accused No.1 was also dipped in the solution which had also turned into pink colour. Thereafter, a mahazar was drawn and both the accused were apprehended. Witness stated that the accused were threatening her to take away her life if she depose before the Court against them. She also stated that on the previous date, which she had come 39 to the Court to give evidence, the accused have prevented her from entering the Court premises.
51. The cross examination of the witness-PW3 deferred at the request of learned counsel for the accused and during cross examination, nothing has been elicited from this witness to shake her credibility. It is pertinent to note that even though the witness stated that she was threatened by accused Nos.1 and 2 by giving life threat not to depose before the Court and preventing her from entering the Court premises, there is absolutely no cross examination to this witness. The other suggestions put to the witness are all denied.
52. If the evidence of PW3 - first informant is taken into consideration, it is clear that she being the widow of her husband had submitted application on 05.06.2006 to Katakbhavi gram panchayat seeking mutation of her name, as per Ex.P12. It is not in 40 dispute that the death certificate of husband of the informant was enclosed to the application. It is also not in dispute that the said application was still pending for consideration before katakbavi Gram panchayat where accused No.1 was working as Secretary and accused No.2 was working as bill collector, even on the date of incident.
53. The learned counsel for the appellants contended that accused No.2 was not a public servant as he was working on temporary basis and therefore, the trial Court had no jurisdiction to try him for the above said offences. He also filed IA 1/2017 under Section 391 of Cr.P.C. seeking permission to produce two additional documents in support of his contention. It is not disputed by the prosecution that accused No.2 was working as a clerk / bill collector in Katakbhavi gram panchayat, after promoting him from the post of waterman. The additional documents 41 produced by the learned counsel relates to the proceedings of gram panchayat where it was resolved to promote accused No.2 who was working as waterman for about 7 years, as a clerk in the panchayat. The second document relied on is the order passed by the Chief Executive Officer, Zilla panchayat appointing accused No.2 as clerk in Katakbavi panchayat on monthly pay of Rs.650/-. It is made clear that accused No.2 is not a government servant and he is not entitled for any perquisites. The monthly salary is to be paid from out of the grant available with the gram panchayat.
54. Learned counsel for the respondent submitted that he has no objection to take into consideration these documents and he admitted that accused No.2 was working in Katakbavi gram panchayat as clerk and his payment was being made from out of panchayat fund and therefore he was a 42 Public servant. Even though accused No.2 was admittedly not a Government Servant, the additional documents placed before this Court further strengthens the case of the prosecution that, he is a public servant as defined under Section 2(c) (ii) of the Act. As per Section 2(c)(ii), any person in the service or pay of a local authority is a public servant. Therefore, these documents produced as additional evidence on behalf of accused No.2 supports the contention of the prosecution that he was a public servant and bound by the provision of the Act. Under such circumstances, the contention of the learned senior counsel that since accused No.2 was not a Government servant, the trial Court had no jurisdiction to try him, cannot be accepted. The decision of the Hon'ble Supreme Court in MUNISWAMY (supra) is not applicable to the facts of the case. 43
55. The next contention raised by the learned counsel is with regarding to the pendency of the work of the informant with accused Nos.1 and 2 regarding their authority to effect mutation. PW3 in the first information-Ex.P19 specifically stated that she had submitted an application to accused No.1 seeking mutation of her name in respect of the house property after death of her husband. Even during evidence, the witness reiterated the same. The copy of the application is as per Ex.P12, which was seized at the time of trap panchanama. There is no dispute about pendency of this application in Katakbavi gram panchayat. It is not the contention of the accused, that this application was already attended to and necessary order was already passed. There is absolutely no reason assigned as to why the said application was kept pending without any further order. During cross examination of the witness, an 44 attempt was made to contend that 45 days must be lapsed from the date of application to pass any order on the application. But nothing has been placed before the Court to contend that the accused have already published the required notice to the general public, calling upon objection for mutating the name of the informant on the basis of the application. It is not the contention of the accused that there was any objection to entertain the said application or that they have acted upon the said application or that they were in the process of effecting the mutation.
56. Learned counsel contended that accused Nos.1 and 2 are not the authorities to effect mutation and therefore, no work was pending with them. This version also cannot be accepted since accused No.1 is admittedly the Secretary of the gram panchayat and accused No.2 was working in the said gram panchayat and under the Land Revenue Act and under the 45 Panchayat Raj Act, the prescribed officer i.e either the Tahsildar or the Secretary of the Gram Panchayat are responsible for effecting mutation in the revenue records. The contention of the learned counsel that the elected representatives i.e., president and other members of the gram panchayat should have passed the necessary orders for effecting mutation, cannot be accepted as no such contention was raised by any of the accused before the trial Court and also it is not the requirement of law. Therefore, the submission of the learned counsel in this regard is to be rejected.
57. The next contention raised by the learned counsel is that there was no demand either by accused No.1 or by accused No.2 for illegal gratification. But the documents including the first information and the evidence of PW3 clearly go to show that both the accused have demanded illegal gratification to show the official favour. Therefore, it 46 cannot be said that there was no demand for illegal gratification.
58. The contention of the learned counsel that PWs.1 and 2 have not supported the case of the prosecution and they have turned hostile also cannot be accepted. On going through the evidence of these witnesses, it is clear that PW2 has fully supported the case of the prosecution. Even though all the details could not be elicited in his chief examination, he admitted the contention of the prosecution, when the learned Special Prosecutor cross examined him. The say of the witness that since the incident had taken place long back, he could not remember all such details, cannot be rejected. Nothing has been elicited from PW2 to contend that he is deposing falsely or that he is an interested witness either to support the case of the prosecution or to depose against the accused.
47
59. It is elicited from PW2 during cross examination by the accused that he had acted as pancha in 2 to 3 cases. There is absolutely no further cross examination to contend that he is a stock witness to assist the police in their illegalities. In the absence of any such particulars that the witness was specially chosen either to support the case of the prosecution or to depose against the accused, it can not be held that the witness is an interested or stock witness.
60. The Hon'ble Apex Court in Amarjit Singh 6 Cheema Vs. State (Bom) at paragraph 10 held as follows:
"10. There is considerable justification in what is contended by the learned Public Prosecutor that the evidence of P.W. 4 Parulekar cannot be discarded considering several aspects. Firstly he brings to our notice that despite the fact that P.W. 4 became a panch witness in 6 1987(3) CRIMES 12 48 several cases, according to him, it is not possible for the appellant at this stage to discredit this witness for the reason that no chance was at all given to P.W. 4 by putting any question to him on this subject when he was examined in the trial Court to prove the panchnama. There is force in what is contended by the learned Public Prosecutor. It is not possible to guess in what circumstances P.W. 4 became a panch witness in several cases. It was clearly incumbent on the appellant to have put questions to that witness and probably the witness could have explained as to how he happened to be a panch witness in those several cases and depending on his answers, it would then be possible for the Court either to accept his explanation or to discard him that he is not credible. Since no question was put to him in cross-examination nor his credibility disputed, it is difficult to now hold, in the absence of any further material, that P.W. 4's evidence is liable to be discarded merely because he happened to be a panch witness in a number of cases. .........
There is another factor which makes us accept the evidence of P.W. 4. There is nothing 49 on record to suggest under what circumstances P.W. 4 became panch witness in other cases. No question put to him in cross examination and there is no whisper about it as far as P.W. 4 is concerned. ........
(Emphasis supplied)
61. Even though PW1 supported the case of the prosecution initially, when he was cross examined at the later point of time i.e., on the next date of hearing, he appears to have given a go by and admitted few suggestions put to him by the accused. But however, the version of this witness regarding acceptance of the illegal gratification, recovery of the tainted money from the accused and procedure that was followed during entrustment and trap panchanama were not shaken.
62. At this juncture, it is pertinent to note that PW3 in her evidence categorically stated that she was threatened by the accused by giving life threat, not to depose against them and she was not even allowed to 50 enter the Court premises when she had attended the Court for giving evidence. In this regard, the learned counsel for the respondent contended that a separate complaint was registered against these accused for threatening PW3 from giving evidence before the trial Court. The learned counsel for the appellants however contended that the accused were acquitted in the said criminal case and thereby, the contention of PW3 is falsified. From these submissions, it is clear that PW3 had complained against the threat given to her by accused Nos.1 and 2 and a criminal case was registered against them in that regard. Even though accused were acquitted in the said case, it cannot be concluded that the accused were innocent and that the informant had made false allegation. The Judgment in question is not produced before the Court. The acquittal of the accused may be on the ground that the prosecution has not proved its 51 contention and by giving benefit of doubt to the accused. Be that as it may be, the fact remains that PW3 an illiterate village rustic woman had deposed before the trial Court about the threat given to her by the accused and had even lodged the complaint in that regard. The version of PW3 in this regard cannot be rejected as baseless. It is also pertinent to note that PW3 was never cross examined on her say that the accused have threatened her by giving life threat and not allowed her to enter the Court premises. This definitely shows the conduct of accused Nos.1 and 2. As rightly contended by the learned counsel for the respondent, this may be the reason as to why PW1 was not consistent in deposing before the trial Court on the date of his cross examination. Unfortunately, at times, the accused taking advantage of the delay in recording the evidence of the prosecution witnesses try to either won over or to threaten the 52 victim/material witnesses to desist them from deposing the truth before the trial Court. In this back ground, giving protection to the prosecution witness is seriously being considered and a separate Scheme for victim protection is also formulated.
63. Be that as it may. The evidence given by PWs.1 to 3 regarding the demand and acceptance of the illegal gratification and specific allegation made by the informant against the accused with regard to the threat given to her which remained unchallenged during her cross examination, looms large in considering the conduct of PW1 as well. But however, all these witnesses consistently spoke about the demand, acceptance and recovery of the tainted money from accused Nos.1 and 2 and drawing of trap mahazar. I do not find any reason to reject the version of these witnesses and to give benefit of doubt to the accused.
53
64. One more contention raised by the learned Counsel for the appellants is that one Bheemappa Desai had played a prominent role in lodging the first information and trapping the accused. He contends that as per the version of all the material witnesses the said Mr. Desai was present in Lokayukta office while drawing the entrustment panchanama and he was also present in the gram panchayat when the incident had taken place. But strangely, this Bheemappa Desai is not either cited as charge sheet witness nor examined before the trial Court in support of the case of the prosecution.
65. It is true that PWs.1 to 3 have spoken about the presence of Bheemappa Desai. PW3 specifically stated that said Bheemappa Desai is from her village and she took his assistance in reaching the Lokayukta Office and to lodge the complaint. From the materials on record, it is clear that PW3 a poor muslim 54 lady, who lost her husband and is an illiterate village rustic and subscribes her thumb impression to the documents. There is nothing wrong in getting the assistance of any other persons to attend the public offices like gram panchayat or Lokayukta office and to submit applications. Even though PW3 stated that the said Bheemappa Desai accompanied her and assisted her, nothing has been elicited from her during her cross examination to contend that Bhemmappa Desai used the informant as a pawn to file false complaint against these accused. No such defence appears to have taken before the trial Court during cross examination. Unless a specific case is made out at least during cross examination of PW3, it can not be presumed by the Court that, she was made a tool in the hands of others. There must be a basis for forming such opinion. Learned counsel for the respondent also drawn my attention to the order sheet dated 55 11/3/2010 of the trial Court, where the prosecution had filed an application under Section 311 of Cr.P.C. seeking permission to summon this Bhemmappa Desai as prosecution witness. The said application was opposed tooth and nail by the accused and therefore, the application was came to be rejected. Under such circumstances, the accused cannot now contend that the prosecution failed to examine the said Bheemappa Desai deliberately and that there is withholding of material evidence before the trial Court. The contention of the learned senior counsel that if at the later stage, the said witness were to be examined before the Court without there being his statement under Section 161 of Cr.P.C., there was every possibility for him to depose in support of the case of the prosecution, cannot be accepted at all. When the accused opposed permission to examination of Bheemappa Desai before the trial Court, now it would 56 not lie in their mouth to contend that non examination of this witness is fatal to the case of the prosecution.
66. The contention of the learned Counsel for the appellants that sanction issued by PW5 to prosecute accused No.2 is of no consequence as accused No.2 was not a Government servant and secondly, that PW5 was only a secretary and not having authority to either appoint or to remove accused No.2 from his service. In this regard, I have gone through the evidence of PW5 who issued sanction as per Ex.P21. Witness stated categorically in his evidence that as per the order dated 20/6/2003 issued by the Government under Section 113 of Karnataka Panchayat Raj Act, he is the authority to remove accused No.2 from his service. There is absolutely no cross examination of this witness in this regard. Therefore, I do not find any merits in such contentions raised at this stage.
57
67. From the materials placed before the Court, it is clear that accused No.1 being the Secretary and accused No.2 being the clerk/bill collector in Katakbhavi gram panchayat, have demanded and accepted the illegal gratification from the first informant-PW3 to show the official favour. When the prosecution is successful in proving that the accused have accepted the gratification, other than the legal remuneration, then the presumption under Section 20 of the Act comes into operation and it is for the accused to rebut the said presumption and to probabalise that such acceptance of gratification was not as a motive or reward as mentioned in Section 7 of the Act.
68. Accused No.1 has given his explanation as per Ex.P13 and stated that one Desai had called him out of his office and had given Rs.100/- currency note and in the meantime, Lokayukta police came and 58 caught him. This version of accused no.1 is not at all probabalised either during cross examination of the prosecution witnesses or by stepping into the witness box. Accused No.1 has not chosen to step in to the witness box to depose about his defence for the reasons best known to him. Moreover there is absolutely no explanation as to how his hand was in the sodium carbonate solution could test positive for the presence of the phenophuline, if he had not received the tainted money smeared with such powder.
69. Accused No.2 has given his explanation at the earliest point of time as per Ex.P14 wherein he categorically admitted that he had accepted the amount from the informant. Accused No.2 examined himself as DW2 and stated that he is working as a clerk in Katakbhavi Gram panchayat on contract basis and that accused No.1 was Secretary of gram 59 panchayat. Witness stated that the informant had submitted the application for mutation of her name on 5/6/2006 but no meeting was held till 24/7/2006. Even in the meeting held on 24/7/2006, the application submitted by the informant was not a subject matter. He also stated that the police have not recovered any amount from him personally. But stated that the amount was in his almirah and he had not touched it. During cross examination, witness categorically admitted that as the Secretary of the Panchayat it is the duty of accused No.1 to prepare the agenda for the meeting of the Gram panchayat and also admitted that on 24/7/2006, the subject relating to the informant was not included in the agenda. He also admitted that no objection was received for the application Ex.P12 submitted by the informant. Witness admitted that Ex.P13 was the explanation given by accused No.1 and Ex.P14 was 60 the explanation given by him in his own hand writing. The evidence of this witness is of no help to the accused to rebut the presumption, but on the other hand it further strengthens the case of the prosecution.
70. The accused have examined DW1-one of the member of Katakbhavi gramp panchayat. The evidence of this witness is also not helpful to the accused to rebut the presumption or to prove the defence taken by the accused as it remained only as a self serving statement. Infact the accused have not taken any specific defence nor they have probabalised any of such defences taken from time to time.
71. The evidence of the informant along with panch witnesses and the documents produced before the Court in particular, the FSL report- Ex.P23 supports the contentions of the prosecution and the same is not rebuttal. The explanation offered by the 61 accused are not probabalised and cannot be accepted. As a result, the prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
72. I have gone though the impugned judgment of conviction and order of sentence. The trial Court has taken into consideration all the materials on record and came to the right conclusion. I do not find any reasons to interfere with the same. Hence, I am of the opinion that appeal is to be dismissed. Accordingly, it is dismissed as devoid of merits.
SD/-
JUDGE KGK-paras 1 to 45 Vmb-paras 46 till end