Karnataka High Court
Sri T N Gurumurthy S/O Late T H Siddappa vs State By Dy Sp Police Wing on 1 July, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 01ST DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.659 OF 2006
BETWEEN:
Sri. T.N. Gurumurthy,
Son of Late T.H. Siddappa,
Aged 48 years,
Revenue Inspector,
Madivala Range,
Bangalore Mahanagara Palike,
L.I.C. Colony,
Bangalore - 560 011. ...APPELLANT
(By Shri. Suresh S.Joshi , Advocate)
AND:
State by Dy.S.P.,
Police Wing, City Division,
Karnataka Lokayukta,
Bangalore Division,
Bangalore. ...RESPONDENT
(By Smt. T.M. Gayathri, Advocate)
*****
2
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellant against the judgment dated 25/28.02.2006 passed by
the Special Judge, Bangalore Urban District, Bangalore City, in
Spl.C.C.No.102 of 2003 - convicting the appellant/accused for
the offences punishable under Sections 7 and 13(1)(d) read with
Section 13(2) of Prevention of Corruption Act, 1988 and etc;
This appeal having been heard and reserved on
07.06.2013 and coming on for pronouncement of Judgment
this day, the Court delivered the following:-
JUDGMENT
This appeal is against conviction. The case against the appellant, who was the accused before the trial court, was as follows:-
On 14.6.2002, one Praveen D'Souza had submitted an application for khata bifurcation in respect of site nos.28 and 29, at Maruthi Nagar, Madivala New Extension, Bangalore. The property was said to have been gifted to the said D'Souza by his father. A copy of the gift deed, emcumbrance certificate, tax paid receipt, etc., had been submitted along with the application. It was the case of the said applicant that after a 3 week, the present appellant, who was the Revenue Inspector in the office of the Assistant Revenue Officer, Madivala Range, Jayanagar, Bangalore, had visited the above said property for inspection and it was alleged that he demanded Rs.9,000/- from the said D'Souza to process the application. It transpires that on 28.9.2002, D'Souza visited the ward office and met the appellant and it transpires that the appellant repeated his demand for bribe. After much negotiation, the amount was scaled down to Rs.5,000/-. But however, D'Souza, who was not inclined to pay any bribe, had approached the Deputy Superintendent of Police, Karnataka Lokayukta, City Division, Bangalore and is said to have lodged a written complaint. On the basis of the said complaint, a case was registered in Crime No.33/202 and was forwarded to the Court of the Special Judge. In the course of investigation, a successful trap was laid and it is claimed that a sum of Rs.5,000/- was recovered in the presence of witnesses and a panchnama was drawn up. Thereafter, after obtaining the requisite sanction from the 4 Commissioner of Bruhat Bengaluru Mahanagara Palike, a charge sheet was filed against the accused, for offences punishable under Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity). Thereafter, charges were framed and the appellant had pleaded not guilty and claimed to be tried. The prosecution had examined 6 witnesses and marked 19 documents apart from material objects. The accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity), who had denied the incriminating circumstances appearing against him and had examined two witnesses on his behalf and placed reliance on Exhibits D.1 to D.4. After hearing the prosecution and the accused, the trial court had framed the following points for consideration:-
"1. Whether the sanction order issued by the Commissioner of Bangalore Mahanagara Palike, 5 Bangalore to prosecute the accused person is valid and proper?
2. Whether the prosecution proves beyond reasonable doubt that the accused being public servant, while working as Revenue Inspector of Madivala Range, Bangalore Mahanagara Palike, Bangalore, on 30.09.2002 demanded and accepted illegal gratification of Rs.5000/- from CW1 Sri. Praveen A D'Souza, to show an official favour to the complainant and thereby committed an offence under Section 7 of Prevention of Corruption Act, 1988?
3. Whether the prosecution further proves beyond reasonable doubt that by means of corrupt or illegal means or by otherwise abusing his position as a public servant, accused obtained a pecuniary advantage of Rs.5000/- for himself from the complainant CW1 Sri. Praveen A D'Souza, on 30.9.2002 in the office of accused as stated above and thereby committed an offence under Section 13(1)(d) punishable under Section 13(2) of Prevention of Corruption Act, 1988? "6
The court answered all the points in the affirmative and convicted the appellant and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- for the offence punishable under section 7 of the PC Act, and to undergo simple imprisonment for two years and to pay a fine of Rs.10,000/- for the offences punishable under Sections 13(1)(d) read with 13(2) of the PC Act. The substantive sentences were ordered to run concurrently.
It is that which is under challenge in the present appeal.
2. The learned Counsel for the appellant would contend that the findings arrived at by the trial court in holding that the charges have been proved against the appellant, beyond all reasonable doubt, is without reference to the several discrepancies and contradictions that have been left unexplained and if the same are taken into account, the appellant would have to be honourably acquitted. The learned 7 Counsel would submit that the complainant was examined as PW.1 and according to him, his father had gifted him the first floor portion of site nos.28 and 29. After the application was forwarded to the appellant by the Assistant Revenue Officer (ARO) on 17.6.2002, the accused had inspected the property of the complainant on 5.7.2002 and found that there was no structure completed on the first floor of the gifted property and he had accordingly reported the matter to the ARO, who in turn, finding that there was no application for sanction of construction of any structure on the first floor, had issued an endorsement, to the effect that the application could to be considered only after completion of the structure of the first floor. The endorsement was received by the complainant. The ARO, who was examined as PW.5, has stated that till 19.1.2005, the complainant had not produced any sanctioned plan and did not visit the office of the Corporation to report compliance with the directions mentioned in the endorsement for at least two months from the date of such endorsement. It is 8 on 30.9.2002, the complainant had visited the office of the Lokayukta and filed a complaint against the appellant, which was only to bring pressure on the appellant and the officials of the Corporation. It is also pointed out that According to PW.1, he had visited the office of the appellant at 12.30p.m., armed with a tape recorder, but the appellant was not found in his seat. The complainant, who was said to be a software engineer, was otherwise busy with his profession and therefore, was in a hurry to have the khata bifurcation, in order to secure a loan from a bank and therefore, had approached the appellant later in the day and had expressed that he was hardpressed for time to pay the bifurcation fee, up-to-date taxes, stamp duty and to comply with other formalities to process his application and therefore, had requested the appellant to assist him in that regard and paid a lump sum amount to cover the expenses in respect of the same. As the concerned tax inspector was also not available to provide the exact calculation of the amounts to be paid and therefore, had handed over the amount required for 9 the purpose, with a request that the taxes be paid along with the fees and stamp duty and such other expenses and that he would collect the documents subsequently. The appellant had refused to provide any such service. It is the case of the appellant that the amount was forcibly thrust into his hands and it is at that juncture that the Lokayukta Police had suddenly appeared and surrounded him and had conducted further proceedings, making it appear that there was a demand and acceptance of bribe. The appellant had furnished his explanation narrating the above sequence and claiming that the amount of Rs.5,000/- was given, as aforesaid, to meet the expenses involved, in any event, which was refused by the appellant.
Further, it is pointed out that the claim of the complainant that he had complied with the requirement of the endorsement issued by the ARO, was not evident from the file pertaining to khata transfer of the complainant.
It is further contended that there was no demand by the appellant of any bribe amount and the appellant had informed 10 the complainant, when he approached him, that he was required to pay taxes, fees etc., and whether he had the money. That has been endorsed by PW.3, the shadow witness, as found at paragraphs 10 and 14 of his deposition. Further, the appellant was not the competent authority, who could order bifurcation of khata and in view of the endorsement that was already issued by the ARO, which required to be complied with and there being no compliance with the same, it was not possible for the appellant to provide any favour to the complainant for him to have demanded and accepted the bribe. Exhibit P.5, which was a rough sketch appended to the reply of the complainant regarding compliance with the endorsement issued by the ARO, was apparently a got up document hurriedly prepared by the complainant with the assistance of the Police, only to implicate the appellant. The alleged tape recording that was said to have been used during the trap proceedings, could not have been relied upon by the investigating officer. The voice on the tape was not identified by any person, including 11 the complainant. It is only the investigating officer, who has referred to the tape recording. It is not in dispute that the investigating officer was not present, when the alleged recording had taken place. Therefore, he was not competent to speak or place reliance on the same. The evidence on record would indicate that the application for khata bifurcation was forwarded to the appellant on 14.7.2002. PW.2 Kumara Swamy, who was managing the file regarding khata bifurcation, has spoken about the procedure and the fact that he was maintaining the file. As stated by the said witness, it is only after he forwarded it to the ARO and an endorsement is made by the Special Officer that the file would go to the concerned person and it is in this fashion that the file was sent to the appellant after the orders of the ARO. This evidence of DW.2 is completely ignored by the court below. The evidence of those witnesses was significant, which would establish that the file was not with the appellant at any time, but it always remained with Kumar Swamy, who was an accountant-cum- 12 clerk. The evidence of Kumara Swamy is also supported by the Commissioner of the Corporation PW.2 and therefore, the alleged seizure of the file from the appellant by the Lokayukta Police, cannot be readily accepted, as the procedure did not contemplate the file remaining with the appellant. The allegation that the complainant had met the appellant, from the date of his filing his application, on 14.6.2002, is not established as the appellant was never the custodian of the file pertaining to the complainant and therefore, could not have been in a position to demand and accept bribe, for the further reason that he was also not the person, who takes a final decision regarding the khata bifurcation. The competent officer was the Revenue Officer. On the other hand, the appellant had already made an endorsement in the file and that the application could not be processed, as the necessary documents were not forthcoming, on the basis of which, the ARO had also made a note and endorsement, all of which has been overlooked by the trial court. The endorsement by the ARO 13 has been received by PW.1 the complainant, who had admitted in his evidence on 30.7.2002 and therefore, he had received the endorsement two months earlier to the complaint. This crucial aspect is ignored by the Special Judge. It is also ignored that the complainant had not complied with the steps as required by the endorsement. Therefore, in the face of the endorsement, the question of demand for any money on 28.9.2002 or 30.9.2002 did not arise, as there was no pending work, which could be done by the appellant in favour of the complainant. Therefore, it is evident that the trial court has proceeded to deal with the matter only with reference to the evidence of the prosecution, which again is interpreted to the prejudice of the appellant, in the face of the inconsistent statements of PWs.1, 3,4 and 6. PW.3 was treated as a hostile witness since he had clearly supported the stand of the appellant that any money that was sought to be paid by the complainant was thrust on him and it was towards the expenses involved, which the complainant was to pay. But since he had no time, he was requesting the 14 appellant to take care of the formalities and was paying a lump sum amount in that regard towards such expenses and not as bribe. Therefore, if the evidence of PW.1 and PW.3 is eschewed, there is no substance in the case of the prosecution.
The learned counsel, therefore, contends that the impugned judgment be set aside and the appellant be acquitted.
3. The learned Counsel for the respondent , on the other hand, would seek to justify the findings of the court below.
It is pointed out that the court below, after taking into consideration the evidence of PW.1, has held that there was a prior demand of bribe, as clearly stated in the complaint, which has been corroborated by PW.3 as regards the demand made by the accused on the date of trap. The attendant circumstances and the contents of the panchanama, according to the court below, had established the demand for bribe. Insofar as the acceptance of bribe is concerned, the court below 15 having held that the oral testimony of PWs.1,3,4 and 6 would establish the recovery of tainted currency notes from the possession of the appellant and the hand wash having yielded positive results, the acceptance of the bribe was also established. Insofar as the evidence tendered by the appellant is concerned, apart from his denial that there was demand for bribe, on the other hand, the complainant was required to pay several amounts in order to have his application processed, such as the tax arrears, khata bifurcation fee, stamp duty etc., and which the complainant wanted the appellant to attend to and therefore had thrust the money on him, even though the appellant was protesting that it was not his part of the duty to do so. The appellant had examined one J.M.Prakash, Revenue Inspector at the relevant point of time at the Office of the ARO, Madivala, had spoken about the duties, which the appellant was usually required to be carried out in a day's work and that during the most part of the day, he would be attending to field work and it is only at 3p.m., that he would return to the office. 16
The next witness DW.2 was a Second Division Clerk at the office of the ARO, Madivala Range and he had stated that Exhibit D.1, was the file pertaining to khata bifurcation and he had spoken about the application filed by the complainant and of the endorsement made by the ARO, to refer the file to the present appellant and he had further stated that the appellant had made an endorsement on the application and had sent the file back, which when placed before the ARO, an order was passed that after the completion of the building of the first floor, the complainant could apply for bifurcation of the khata and on the basis of which, the said witness had issued an endorsement Exhibit P.4, which was dispatched to PW.1, the complainant. He had further deposed that there was no reply to the endorsement and that the file was not processed further and remained in his custody and it was handed over to the Lokayukta Police on 30.9.2002 at about 4.30p.m. when they asked for it. He had also endorsed that the appellant had signed the attendance register at 3p.m., on 30.9.2002. However, the 17 trial court has proceeded to hold that the prosecution has proved, beyond all reasonable doubt, the demand and acceptance of bribe. Insofar as the evidence of DW.2 to the effect that he was the custodian of the file and that he had handed over the file to the Lokayukta Police has been negated in the face of the evidence of PWs.1,3,4 and 6, who had consistently stated that the file was produced by the appellant during the trap panchanama and that was also recorded in the trap panchanama Exhibit P.11 and the court below has found that DW.2 had nowhere affixed his signature or initials on the file for having received or having put up the file before other officers and therefore, has disbelieved the evidence of the said witness. The court below has also disbelieved that the endorsement said to have been issued by the ARO had been handed over to PW.1 by DW.2, as it was contrary to the other evidence that was on record, including that of the appellant himself. The other crucial circumstance, which according to the court below, which was against the defence of the appellant, 18 that there was an admission by DW.1 that Exhibit D.1(a) was in the handwriting of the accused. Exhibit D.1(a) is the reply said to have been issued on behalf of PW.1, the complainant, to the endorsement said to have been issued to him and as the complainant did not know the Kannada language, the appellant is said to have written on his behalf and this handwriting has been admitted to be that of the appellant and this has not been denied either in the cross-examination or any endeavour made to disprove the same. Therefore, the court below has concluded that the endeavour on the part of the appellant that he was never in the office till 3p.m., on the date of the trap, was belied by the said writing having been established, in that, it was the case of PW.1, the complainant, that the said reply was given between 12.30p.m and 1.30 p.m. The court has also placed reliance on a micro cassette, MO.13, which is said to have been played in the open court and the conversation transcripted in the evidence of PW.6. The court below, however, has proceeded to hold that even without the assistance of the tape recorded 19 conversion, the prosecution had established its case and therefore the defence set up by the appellant is not relevant and has thus convicted the appellant.
4. Having regard to the rival contentions, firstly, the evidence of the complainant has been held by the court below to be sufficient proof of a prior demand for bribe made by the appellant. Such an opinion cannot be accepted. Further, on the date of inspection by the appellant, of the premises of the complainant, it was evident that the construction was not completed on the first floor, in respect of which, khata bifurcation was sought. It is also not in dispute that there was an endorsement issued by the ARO, to the effect that till the construction was completed, the question of processing any application for bifurcation of khata was not possible and this apparently was also brought to the attention of the complainant. Therefore, notwithstanding any reply that may have been submitted to the said endorsement at the alleged instance of the 20 appellant, it was to the knowledge of the complainant that the bifurcation of khata could be made only on the completion of the construction and it was also to his knowledge that the actual authority, who could pass an appropriate order for such bifurcation, was not the appellant. Therefore, in the face of such circumstance, in the absence of a possibility of the appellant being in a position to extend a favour, in return for illegal gratification, being present. It is not clear as to how the court below after noticing the said circumstance, has merely proceeded on the basis that the tainted currency notes which were prepared for the purposes of trap having been handed over to the appellant and the same having been recovered from his possession, would establish the demand and receipt of illegal gratification, when it is plain that the appellant could not provide the complainant with any benefit by way of issuing a khata bifurcation certificate. The further explanation offered by the appellant to the effect that in view of the endorsement issued by the ARO, any further progress in seeking bifurcation 21 of kahta could only be done on other formalities being complied with, such as, payment of bifurcation fee, arrears of property taxes, stamp duty payable, etc., including material to establish that the building on the first floor has been completed.
Further, even according to PW.1 and the shadow witness, the question posed at the time of the trap by the appellant as to whether the money had been brought, was with reference to the said fee and charges and it could not be construed that it was a demand for bribe. The complainant not being in a position to attend to the formalities, having made a request to the appellant that he may kindly attend to those formalities and having handed over or thrust the money on him and at that moment, the Lokayukta Police having materialized, and having apprehended the appellant and having recovered the said tainted money from his possession, could also be attributed as being money forcibly thrust on the appellant towards the aforesaid expenses and not really as bribe. This is a second view that was possible, but has been negated by the trial court. 22
The evidence of DW.1 to the effect that normally, the appellant and he would attend to field work during the early part of the day up to 3p.m., and it is only thereafter they would come back to the office has been overlooked, in readily accepting that the appellant was very much present, when the complainant affixed his signature to the reply to the endorsement at Exhibit D.1(a). Further, the evidence of DW.2 has also been trashed, in the trial court negating his testimony that the file was never retained by the appellant in the usual course and that it was he who was in custody of the same.
Therefore, in view of the above discrepancies, it could not be said that the prosecution had established its case beyond all reasonable doubt. The trial court has certainly given undue credence to the evidence of the prosecution witnesses, while negating or disbelieving the evidence tendered on behalf of the appellant. Even though the same could not be discarded entirely, it was necessary that the trial court had endeavoured 23 to weigh and reconcile the two and may be then, it was possible to hold that one or the other view was established.
In the opinion of this court, there were two views possible, given the relative strength of the evidence by the prosecution and the appellant. Therefore, it cannot be said that the prosecution had established its case beyond all reasonable doubt.
In the above view of the matter, the appeal is allowed. The judgment of the trial court is set aside and the appellant is acquitted. The fine amounts, if any, paid by the appellant, shall be refunded to the appellant.
Sd/-
JUDGE nv