Karnataka High Court
The State Of Karnataka vs Rahimankhan Nannekhan Pathan on 11 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 958
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JUNE 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.2817/2011 (A)
BETWEEN:
THE STATE OF KARNATAKA,
SPECIAL PUBLIC PROSECUTOR,
KARNATAKA LOKAYUKTA POLICE,
HIGH COURT OF KARNATAKA CIRCUIT BENCH,
DHARWAD.
...APPELLANT
(BY SRI: ANIK KALE, SPECIAL PUBLIC PROSECUTOR)
AND:
RAHIMANKHAN NANNEKHAN PATHAN,
OCC- ASSISTANT PUBLIC PROSECUTOR,
J.M.F.C. I COURT, GADAG,
NOW AS ASSISTANT PUBLIC PROSECUTOR,
J.M.F.C. COURT, NIPPANI.
...RESPONDENT
(BY SRI K.L.PATIL, RAVI S.HEGDE AND ISMAIL D.JALGAR,
ADVOCATES)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE
LEARNED DISTRICT AND SESSIONS JUDGE, GADAG IN
SPECIAL SVC. C.C.NO.3/2006 DATED 21.02.2011 BY
ALLOWING THE PRESENT APPEAL AND CONVICT AND
SENTENCE THE RESPONDENT/ACCUSED PERSON FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(D) READ
2
Crl.A.No.2817/2011
WITH SECTION 3(2) OF THE PREVENTION OF CORRUPTION
ACT, 1988.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The State represented by Lokayukta Police, Gadag preferred this appeal aggrieved by the impugned judgment of acquittal dated 21.02.2011 passed in Special SVC.CC.No.3/2006 on the file of learned District and Sessions Judge, Gadag (for short 'the Trial Court') acquitting the respondent/accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for the sake of brevity).
2. Brief facts of the case of the prosecution are that, P.W.2-the informant was the Editor of "Kranthi Sandesh" weekly news paper. The informant had filed a complaint against one Mr.Manjunath Abbigeri, which was registered in Crime No.105/2002 and a counter complaint was registered by the said Mr.Manjunath Abbigeri against the informant, which was registered in Crime No.106/2002. 3 Crl.A.No.2817/2011 Both the cases were pending before the Learned J.M.F.C.-I at Gadag, where the accused was working as Assistant Public Prosecution (for short 'the APP' for the sake of brevity). It is the contention of the prosecution that the accused demanded illegal gratification of Rs.2,000/- from the informant and received in all Rs.800/- on various dates. Again he demanded Rs.1,000/- promising the informant to get him acquitted in the case that was registered against him. As the informant was not willing to pay the illegal gratification, he lodged the first information with Lokayukta Police on 15.10.2004. The pre-trap procedures were conducted in the presence of two independent panchas and thereafter, the complainant proceeded to the office of the accused situated within the Court premises at Gadag, along with the shadow witness and met the accused. It is the further contention of prosecution that the accused again demanded an amount of Rs.1,000/- and the informant paid Rs.1,000/- i.e., the currency notes which were entrusted to him by the Investigating Officer which were smeared with phenolphthalein powder. After the accused accepting the illegal gratification of Rs.1,000/-, the informant came out of 4 Crl.A.No.2817/2011 the office of the accused and gave signal to the Investigating Officer, who immediately came to the spot along with second pancha and trapped the accused. The illegal gratification that was received by the accused was recovered from him at the spot. Trap panchanama was drawn and explanation of the accused was received in writing. After further investigation, Lokayukta Police filed charge sheet against the accused for the above said offences contending that the accused being a public servant working as APP in J.M.F.C.-I Court at Gadag demanded and accepted Rs.1,000/- from the informant to discharge his official duty by falsely promising the informant that he will see the matter is ended in acquittal, thereby, the accused had demanded and accepted the illegal gratification and misused his official capacity as an APP and committed misconduct.
3. The Learned Special Judge took cognizance of the offences and the accused was summoned to appear before the Court. The accused represented by his Advocate appeared before the Court and pleaded not guilty for the 5 Crl.A.No.2817/2011 charges leveled against him for the above said offences. He claimed to be tried for the charges. The prosecution examined P.Ws.1 to 7 and got marked Exs.P.1 to 22 and identified M.Os.1 to 18 in support of its contention. The Trial Court after taking into consideration these materials on record came to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore the impugned Judgment was passed acquitting the accused for the above said offences after extending benefit of doubt. Being aggrieved by the Judgment of acquittal passed by the Trial Court, the State represented by Lokayukta Police, Gadag preferred this appeal.
4. Heard Sri Anil Kale, learned counsel for appellant-State-Lokayukta and Sri K.L.Patil, learned counsel for the respondent/accused and perused the materials including the Trial Court records. The point that would arise for my consideration is, "Whether the impugned Judgment of acquittal dated 21.02.2011 passed in Special SVC.CC.No.3/2006 on the file of learned 6 Crl.A.No.2817/2011 District and Sessions Judge, Gadag calls for interference by this Court?"
My answer to the above point is in 'negative' for the following:
REASONS
5. It is the contention of the prosecution that the accused while working as APP, being the public servant demanded and accepted illegal gratification of Rs.1,000/- from the informant promising to see that he will be acquitted in the criminal case that is pending against him and thereby has misused his official capacity and committed misconduct and thereby committed the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act.
6. To prove this contention, the prosecution examined the shadow witness as P.W.1, the informant as P.W.2, the co-pancha as P.W.3, the Junior Engineer PWD, who drawn the sketch of the scene of occurrence as P.W.4, the sanctioning authority as P.W.5. The Investigating Officer who registered the FIR and held the raid and the 7 Crl.A.No.2817/2011 trap as P.W.6 and Investigating Officer who completed the investigation and filed the charge sheet as P.W.7.
7. It is the contention of the learned counsel for the appellant that P.W.1 being the shadow witness and P.W.2 being the informant have consistently stated regarding the demand and acceptance of illegal gratification in respect of the criminal case that was pending against the informant and the accused working as APP in J.M.F.C.-I Court at Gadag. The prosecution is successful in proving that the tainted money smeared with phenolphthalein powder, which was entrusted to the informant under the pre-trap panchanama, was recovered from the accused under the trap mahazar. The evidence of P.Ws.1 and 2 coupled with the trap panchanama proved the commission of the offences by the accused. But the Trial Court without appreciating these materials on record proceeded to acquit the accused on flimsy grounds. The reasons assigned by the Trial Court that the narration given by the informant, while examining as P.W.2 is not forthcoming in the first information lodged by him is erroneous. The observation of 8 Crl.A.No.2817/2011 the Trial Court that P.W.2 being the informant has given exaggerated version while deposing before the Court cannot be the reason for its rejection out rightly. The reasons assigned by the Trial Court to acquit the accused are not reasonable and therefore the impugned Judgment of acquittal is to be set aside by allowing the appeal.
8. Per Contra, the learned counsel for the respondent justifying the impugned Judgment of acquittal passed by the Trial Court submitted that even though the shadow witness is examined as P.W.1, he has never stated anything regarding the demand made by the accused. The proof of demand is a sine quo non to prove the commission of the offence punishable under Section 7 of the Act. He further submitted that version of P.W.2-the first informant cannot be believed since there are glaring and material contradictions and omissions. He is an interested witness and his version without corroboration cannot be the basis to convict the accused. Therefore, the Trial Court was right in acquitting the accused. Accordingly, he submits that no 9 Crl.A.No.2817/2011 interference is called for in the impugned Judgment of acquittal and prays for dismissal of the appeal.
9. The submissions of the learned counsels representing the parties were considered in the light of the materials that are placed before this Court.
10. When there is allegation that the accused being the public servant demanded and accepted the illegal gratification, was trapped and thereby he committed the offences as alleged against him, the prosecution has to prove such demand and acceptance of illegal gratification. It is the settled proposition of law that unless the fact of demand is proved by the prosecution, mere recovery of the tainted money is not sufficient to convict the accused. It is also the settled proposition of law that in order to convict the accused, the prosecution is required to prove the guilt of the accused beyond reasonable doubt. If the prosecution is successful in proving the basic ingredients of the offence alleged against the accused, Section 20 of the Act raises the presumption and it is for the accused to probabolize his defence to seek acquittal. With these settled 10 Crl.A.No.2817/2011 propositions of law. Let me consider the oral and documentary evidence that are placed by the prosecution.
11. P.W.2 is the informant who lodged the first information against the accused contending that the accused demanded Rs.2,000/- on 01.12.2004 and he paid Rs.300/-. Again on 04.12.2004, the accused demanded the amount and the informant paid Rs.500/-. Therefore, the informant lodged the first information on 15.12.2004 and when he met the accused in the presence of the shadow witness, the accused again demanded Rs.1,000/- and received the same. The accused was trapped by the Lokayukta Police and the tainted money was recovered from the accused.
12. It is pertinent to note that P.W.2 categorically states in his evidence that the accused demanded the bribe amount of Rs.2,000/- on 01.12.2004 when he paid only Rs.300/-, again the accused demanded the bribe amount on 04.12.2004 and the informant paid Rs.500/-. The witness states that when he met the accused on 04.12.2004 and held conversation with him, the informant 11 Crl.A.No.2817/2011 recorded the conversation in the tape-recorder. According to the case of the prosecution a tape recorder was entrusted to the informant during pre trap panchanama and the informant met the accused and the conversation between them was recorded in the said tape recorder. The prosecution produced two cassettes identified as M.Os.5A and 6A. The informant/P.W.2 gives a detailed narration of the conversation held by him with the accused specifically the accused demanding the bribe amount before trap. But strangely what are the contents of these two cassettes which are identified as M.Os.5A and 6A are not made known.
13. In the first information, which is marked as Ex.P.11, the informant states that he is producing the cassette containing the conversation held with the accused. Ex.P.1 is the pre trial panchanama, wherein, there is reference to the said cassette produced by the informant and details of the conversation is also highlighted. As per this document the cassette was played during the entrustment panchanama, but the demand made by the 12 Crl.A.No.2817/2011 accused was not clear. As per the trap panchanam marked as Ex.P.2, the informant/P.W.2 produced the tape recorder containing the conversation held between the informant and the accused just before the trap. But it is stated that the conversation between the informant and the accused was also not clear. Therefore, the so called conversation recorded in both the cassettes are not clear even as per the case made out by the prosecution and we do not have the transcriptions of the contents of these cassettes. Mere marking of these cassettes that too as material objects will not serve any purpose unless its contents are made known and proved in accordance with law. It is to be noted that the Investigating Officer has not made any attempt to forward these cassettes to the experts after collecting the sample voice of the accused. There is absolutely no reason as to why this exercise is not done by the Investigating Officer, even if, there was conversation recorded in the cassettes as contended by P.W.2.
14. As stated above, P.W.2 being the first informant has stated regarding the demand and acceptance. 13 Crl.A.No.2817/2011 According to him, he conversed with the accused for longtime in his chamber on the date of incident. But P.W.1 the shadow witness says that he was standing outside the chamber of the accused. To be precise he was standing near the Typist and had not gone inside the chamber of the accused. This witness only states that the accused and the informant have spoken in Urdu language and thereafter the informant paid the amount, which was received by the accused. It is pertinent to note that P.W.1 even during his chief-examination never states about the demand made by the accused. It was never elicited from the mouth of this witness by the prosecution regarding the demand nor this witness is treated hostile. Therefore, it has to be concluded that P.W.1 the shadow witness has never stated anything about the demand made by the accused for illegal gratification with the informant. Under such circumstances, we have the interested version of the informant alone regarding the so called demand made by the accused, which was not supported either by the conversation said to have been recorded in the cassettes identified as M.Os.5A 14 Crl.A.No.2817/2011 and 6A or by the evidence of P.W.1 who is the shadow witness.
15. Ex.P.11 is the first information lodged by the informant at the initial stage. During the evidence P.W.2 has given the details of the conversation said to have held with the accused, including the demand for the illegal gratification. Even though it is true that the first information is not the encyclopedia, wherein, all the details of the conversation could be incorporated, but still there is glaring variance in the facts that are stated in the first information and the facts deposed by P.W.2 before the Court. If the information could recite the entire conversation between him and the accused with specific words uttered by the accused while demanding the gratification, while deposing before the Court i.e. about 6 years after the incident, nothing prevented him from incorporating it in the first information which was said to have filed immediately after the incident. I find exaggerated and inconsistent version of the informant in his evidence. No explanation is offered about these 15 Crl.A.No.2817/2011 inconsistencies. Now the question arises as to whether the uncorroborated testimony of the informant is to be accepted regarding the demand made by the accused. The answer will be an emphatic - No.
16. As per Ex.P.12-the spot sketch drawn by the Junior Engineer of PWD, the shadow witness was standing near the Typist in the outer portion of the office of APP, whereas the accused and the complainant were in the chamber. Therefore, the version of P.W.1 that he standing near the Typist in the outer portion of the chamber is probabolized. The version of the informant while deposing as P.W.2 that he along with shadow witness/P.W.1 went inside the chamber of the accused is falsified by this document which is relied on by the prosecution.
17. The Hon'ble Supreme Court in the case of V. Sejappa v. State by Police Inspector Lokayukta, Chitradurga1 referred to various decisions on the subject rendered by it from time to time and reiterated the position of law that proof of demand is a sine qua non for seeking 1 AIR 2016 SC 2045 16 Crl.A.No.2817/2011 conviction of the accused. It is also reiterated that mere recovery of the tainted money is not sufficient to draw the presumption under Section 20 of the Act.
18. The Hon'ble Apex Court in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Another2 held as under :
"20. This Court in A.Subair v. State of Kerala3, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p.593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
21. In State of Kerala v. C.P.Rao4, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.2
(2015) 10 SCC 152 3 (2009) 6 SCC 587 4 (2011) 6 SCC 450 17 Crl.A.No.2817/2011
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj5 in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal 5 (2014) 13 SCC 55 18 Crl.A.No.2817/2011 gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
19. Thus the position of law on the subject is very clear. The discussions held above disclose that the prosecution inspite of evidence of P.Ws.1 and 2 failed to prove the fact of demand of illegal gratification made by the accused. Of Course, there are sufficient materials before the Court to prove the acceptance of Rs.1,000/- by the accused from the informant. The prosecution also proved recovery of the tainted money from the accused at the time of drawing the trap panchanama. Unless the demand for illegal gratification is proved, mere proof of acceptance of money by the accused and recovery of the same by the Investigating Officer will not prove the offences as alleged against the accused. The presumption under Section 20 of the Act cannot be made applicable unless the prosecution proves all the ingredients required to constitute the 19 Crl.A.No.2817/2011 offences alleged. When the prosecution failed to discharge its initial burden of proving the offence alleged, the legal presumption cannot be drawn and the burden cannot be shifted on the accused to probabolise his defence. Inconsistencies or falsity in the defence taken by the accused in his explanation marked as Ex.P.17 and his explanation during his statement recorded under Section 313 of Cr.P.C. is of no help to seek conviction. The accused is not duty bound to probabolize his defence when the prosecution is not successful in proving the guilt of accused beyond reasonable doubt. Therefore, I am of the opinion that the appellant is not justified in seeking conviction of the accused by setting aside the impugned Judgment of acquittal passed by the Trial Court. I have gone through the impugned judgment of acquittal passed by the Trial Court. I do not find any reason to interfere with the same. Hence, the appeal deserves to be dismissed as devoid of merits. Accordingly, it is dismissed.
Sd/-
JUDGE CKK