Karnataka High Court
Sri A Kubendrappa vs Shiva Shankari Bank Ltd., on 8 August, 2011
Author: V.Jagannathan
Bench: Anand Byrareddy, V.Jagannathan
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 6th DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.751/2009
BETWEEN:
The State of Karnataka
By the Police Inspector ,
Karnataka Lokayuktha Police,
Chikkamagalur. .. APPELLANT
(by Smt.T.M.Gayathri, Advocate)
AND:
A.P.Ganiya Naika,
S/o Peekya Naika,
Aged 54 years,
Second Division Assistant,
Taluk Office,
N.R.Pura Taluk,
Chikmagalur District. .. RESPONDENT
(by Shri A.M.Radhakrishna, Advocate)
This Criminal Appeal is filed under Section 378(1) and
(3) of the Code of Criminal Procedure, 1973 praying to grant
leave to appeal against the judgement and order of acquittal
dated 23.3.2009 passed by the Principal Session Judge and
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Special Judge, Chikmagalur in Spl.Case No.28/2007 thereby
acquitting the accused-respondent for the offence punishable
under Section 7 read with Section 13(2) and under section
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988.
This appeal coming on for Hearing, this day, the court
made the following:
JUDGMENT
Heard the learned counsel for the appellant and the respondent.
2. The appeal is by the State represented by the Lokayukta Police.
3. The facts are as follows:-
The respondent was the accused and he was a Second Division Assistant at the Taluk Office, N.R.Pura Taluk, Chikmagalur District. It transpires that the complainant had approached him in respect of issuance of a grant certificate in respect of land bearing Survey No.34 of Lingapura village. The accused had therefore demanded illegal gratification of Rs.3,000/- to issue the said certificate. The complainant was not inclined to pay the bribe. He had lodged a complaint before 3 the Lokayukta Police, Chikmagalur as on 23.2.2007. A case was registered in Cirme No.2/2007 for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act', for brevity). The Police Inspector conducted the entrustment mahazar in his office by procuring entrustment mahazar and a sum of Rs.3,000/- in cash produced by the complainant were treated with phenolphthalein powder and was kept in the pocket of the complainant. Thereafter, the raiding party proceeded to the Taluk Office, while the complainant and the shadow witnesses went inside the office of the accused. The appellants and another panch witness had kept a watch. The complainant had been instructed that after handing over the bribe amount on demand made by the accused, he was to signal the Police by wiping his head in order that the accused may be apprehended. It was the case of the complainant that the money was accordingly handed over to the accused after they came out of the office and took sugar cane juice and thereafter, the money having been handed over to the 4 accused, he had kept in his trouser pocket and went towards his chamber. When the complainant had signalled the Police, who were waiting, the accused was immediately apprehended and his hands were washed in Sodium Carbonate solution. The solution was sealed and marked to be produced at the trial. Similarly, the pocket area of the trousers of the accused was washed with Sodium Carbonate solution and the change in colour of the solution was sealed and marked. The statement of the accused was also recorded and he was arrested and produced before the court. The file pertaining to the complainant was also collected and copies made of the same. Thereafter, on completion of the further proceedings, a charge sheet was filed before the court. The respondent having pleaded not guilty and having claimed to be tried, the prosecution had examined seven witnesses and marked Exhibits P.1 to P.10. On the basis of the same and rival contentions, the following points were framed for consideration by the Court below:-5
"1. Whether the prosecution proves that the accused demanded and received Rs.3,000/- bribe amount from the complainant for issuing grant certificate in respect of land in Survey No.34 of Lingapura village?
2. Whether the prosecution proves that the accused abused his position as a public servant to show official favour to the complainant?"
The court below answered the points in the negative. The respondent having been acquitted, the present appeal is filed.
The learned counsel for the appellant would submit that the court below has primarily held that since the burden of proof of demand and acceptance of the illegal gratification was on the appellant and in this regard, since the complainant, who was examined as PW.1, had himself stated in his examination- in-chief, that he had compelled the accused to receive the money from him, as he was a spend-shrift and it was likely that the money would not stay in his hands and that he would come back a few days later and collect the money, which was totally 6 inconsistent with the prosecution case that there was a demand by the accused and acceptance of the money paid by the complainant insofar as the prosecution case would be nullified, is an unfair conclusion. The learned counsel would submit that the same could not have been held to be fatal to the case of the prosecution. On the other hand, the suggestions put in cross- examination by the counsel for the accused and the answers elicited from PW.1, would sufficiently make good any such inconsistency, that has been drawn up by virtue of such a statement made by PW.1 and therefore, the demand and acceptance having been otherwise, physically established by the fact that the money was recovered from the pocket of the accused and that it could not have been forcibly thrust on him by the complainant and since the receipt of the money was also established, by the hands of the accused having been found to be tainted with phenolphthalein powder and the amount having been recovered from his pocket, could lead to only one conclusion that it was as a result of the pending work with the accused and in order to show favour to the complainant, that 7 the money had been demanded and received. There was no other explanation for a Government Servant on duty to be in possession of that amount of money, which it had admittedly come from the complainant to the accused. Therefore, the infirmities sought to be highlighted by the court below was not an inconsistency, which could be characterised as being fatal to the case of the prosecution. The position held by the accused is not in denial nor the fact of the money having been recovered from him and the further money having been received by the accused is also established. Except for the minor variance in the statement of PW.1, it cannot be said that there was any other mitigating circumstance, which could enable the court below to acquit the accused. In this regard, the learned counsel would also submit that the incidental reference to the further aspect that there was a mistake in the mentioning of the survey number concerned and that there was no question of issuance of a Grant Certificate or a Saguvali Chit in favour of the complainant, till a correction was made of the survey number by an appellate authority and there was also ban on issuance of 8 Saguvali Chits in respect of gomal land and therefore, there was no immediate possibility of the issuance of a Grant Certificate and hence the case of the prosecution that the accused had received the illegal gratification by using his official position in order to show a favour to the complainant, is not a conclusion that can be readily drawn, is not material, if it is quite possible that the accused has misused his official position and has mislead the complainant into believing that he was in a position to issue such a Saguvali Chit even if it was otherwise, impermissible having regard to the circumstances that were elicited during the course of the evidence of the witnesses. Therefore, the learned counsel would submit that in every given case, it is not necessary and imperative that there should be a oral demand preceding the receipt of money by the accused. In the instant case on hand, the proof of receipt of money is plainly available. The question whether there was a demand is also established by the corroborative evidence of the shadow witness PW.5, who has clearly stated that though he was out of earshot of the complainant and the accused demand that the 9 money was paid and received, he had clearly seen that the money being received by the accused and put into his trouser pocket. Therefore, the said evidence was sufficient to establish the demand and receipt by the accused when it was the case of the complainant that the demand had been made for a sum of Rs.5,000/- in the first instance and after negotiation, the amount was brought down to Rs.3,000/- and it was that amount, which was paid to the accused and therefore, there is sufficient evidence to establish the demand and acceptance of the bribe and hence, the court below was not justified in negating the points for consideration, which clearly stood established. It is in this vein that the learned counsel would seek to take this court through the evidence of the parties, more particularly, the cross-examination, since according to the learned Counsel, any such infirmities that were present in the evidence of the complainant and others have been made good unwittingly by the accused in the cross- examination and hence, the overall circumstances of the case 10 have to be kept in view in holding that the prosecution had established its case beyond all reasonable doubt.
While the learned counsel for the accused would vehemently dispute the uncharitable remark by the learned counsel for the appellant that the accused in cross-examination has made good the lacuna that was present by virtue of the statements, especially, the complainant to water down the case of the prosecution. He would again take this court through the record, to demonstrate that the interpretation sought to be given by the learned counsel for the appellant to particular suggestions and answers by the witnesses, cannot be interpreted in the sense that the counsel for the appellant seeks to convey and it is only to fortify the inconsistent statements of the complainant, that suggestions have been made and those cannot be characterised as suggestions, which would otherwise make good the inconsistencies that were plainly apparent in the case of the prosecution. The learned counsel would also submit that the demand and acceptance has been held, in a catena of decisions, as being the sine qua non of establishment of an 11 offence punishable under Sections 7 read with section 13(1)(d) and 13(2) of the PC Act and to contend that, notwithstanding the declaration by the complainant himself, that he had voluntarily handed over the money to the accused and added to it, there was no evidence of the shadow witnesses, to state that he had indeed heard the accused demand and thereafter the complainant had handed over the money and the same was received by the accused, it would certainly enable the prosecution to contend that the case had been proved beyond all reasonable doubt. It is this primary aspect of the matter, which has weighed with the court, in holding that no case has been made out against the accused. Therefore, the learned counsel would submit that, that circumstance alone, is sufficient to acquit the accused, which is the reason why the court below has also restricted the consideration of the material before it to that aspect. He would submit that there is no infirmity or inconsistency insofar as that finding is concerned and would submit that the judgment of the court below be affirmed. 12
In the light of the above contentions, the burden was clearly on the prosecution, to establish that the accused had committed an offence punishable under the said provisions of law and as rightly pointed out by the learned counsel for the respondent, the demand and acceptance of bribe, should be categorical proof. It may be true that in all cases, it may not be imperative to prove that there was an oral demand and receipt of such illegal gratification, but when the complainant himself states that he had voluntarily thrust the money on the accused not as illegal gratification, but on the ground that he was a spend-shrift and that he was going on some work where it was most likely that he would spend money and therefore, he wanted the accused to retain it for a few days, would not establish the case of the prosecution that there was a demand for illegal gratification and the accused had received it as such. In that view of the matter, the case of the prosecution would have to be negated, which the court below has rightly done. 13
Accordingly, there is no merit in this appeal and the same stands dismissed.
Sd/-
JUDGE nv